Present: Estey, McIntyre, Wilson, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for new brunswick
Torts ‑‑ Courts ‑‑ Rules of court providing for advance payment where "liability is established" ‑‑ Advance payment sought from C.N.R. only, and granted ‑‑ Absent a claim, appeal against VIA Rail dismissed ‑‑ Application for interest on moneys ordered to be advanced dismissed ‑‑ Costs awarded.
APPEAL from a judgment of the New Brunswick Court of Appeal allowing an appeal from a judgment of Deschênes J. granting an application for advance payment of special damages. Appeal allowed with respect to the respondent Canadian National Railway Company; appeal dismissed with respect to the respondent VIA Rail Canada Inc.
Levi Clain, Q.C., for the appellant.
David M. Norman, Q.C., for the respondent Canadian National Railway Company.
George LeBlanc and James Anderson, Q.C., for the respondent VIA Rail Canada Inc.
The following is the judgment delivered orally by
1. The Court‑‑At the opening of the hearing of this appeal, motion was made by the appellant to file the reasons for judgment of Deschênes J. and the Court of Appeal of New Brunswick in these proceedings, respectively dated February 2, 1988 and February 26, 1988. This motion is granted.
2. The appellant in the course of the hearing of this appeal amended his application to claim the payment of the sum of two hundred thousand ($200,000) dollars "as advance payment of special damages for rehabilitation purposes" from the respondent Canadian National Railway Company only, and this appeal is accordingly dismissed as against the respondent VIA Rail Canada Inc. without costs.
3. The appellant further amended his application in respect of which this appeal was brought before this Court by adding:
(a) a claim for interest on any moneys ordered to be advanced hereunder from the date of the order of Deschênes J.; and,
(b) for costs on this appeal, here and in the courts below, on a solicitor and client basis.
4. As we are all substantially in agreement with the reasons of Rice J.A., dissenting in the Court of Appeal, this appeal is allowed, the order of the Court of Appeal below set aside, and
(a) the application by the appellant for an advance in special damages be granted as against the respondent Canadian National Railway Company only on the terms of the order issued by the learned Justice of first instance, Deschênes J., issued on May 21, 1987, including the order therein made as to costs;
(b) the application by the appellant for interest shall be and is hereby dismissed;
(c) the respondent, Canadian National Railway Company, shall pay to the appellant his costs in the Court of Appeal in the amount proposed by Rice J.A. in reasons for judgment herein issued on April 5, 1987; and
(d) the respondent, Canadian National Railway Company, shall pay to the appellant his costs in this Court on a party and party basis.
Judgment accordingly.
Solicitors for the appellant: McKelvey, Macaulay, Machum, Saint John; Innes, Bossé & Mills, Moncton.
Solicitors for the respondent Canadian National Railway Company: Hanson, Hashey, Fredericton.
Solicitors for the respondent VIA Rail Canada Inc.: Anderson, Sheehan & McWilliam, Moncton.
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