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CONTRACTS - Validity

Thursday, January 03, 2019 @ 8:28 AM  


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Appeal by MacQueen from a ruling finding an alleged agreement with the Town of Grand Bay of no force or effect. The appellant sought to build on property purchased in 1981. The property included lots and a private road. The Town made it apparent that it would not issue a building permit unless the appellant arranged for supply of municipal services to the lot. In 1994, the parties reached an understanding that the appellant alleged permitted him to commence building. The appellant alleged the Town assumed the obligation to make future improvements to the private road and its existing sanitary system. In 2003, the dispute revived after the Town refused a building permit to a prospective purchaser of one of the lots. In 2006, the applicant applied for a determination of his rights on the basis that s. 42(3)(j)(i) of the Community Planning Act required enforcement of the alleged 1994 agreement. The court rejected the applicant's interpretation. The court found that the agreement with the Town was of no force or effect, as it was not in writing, under seal, and signed by the mayor and clerk pursuant to s. 5(2) of the repealed Municipalities Act, or its current equivalent, s. 4(3) of the Local Governance Act. MacQueen appealed. He relied upon Town meeting minutes and a registered subdivision plan approved by the Town as evidence of the agreement.

HELD: Appeal dismissed. The application judge correctly concluded s. 42(3)(j)(i) did not impose a positive obligation on the Town to undertake any work. The judge did not err in determining that any agreement with the Town was oral, not signed and sealed, and thus of no force or effect, pursuant to s. 5(2). The portions of the minutes before the application judge did not reveal the seal or signatures of the mayor and clerk. The judge accepted the minutes as approving actions in contemplation of an oral agreement which had been formed earlier. He did not accept the minutes as forming or constituting the agreement, and he certainly did not regard them as reflecting the entirety of any agreement between the parties. No misapprehension of the evidence or unreasonable interpretation of s. 5(2) was established.

MacQueen v. Grand Bay-Westfield (Town), [2018] N.B.J. No. 269, New Brunswick Court of Appeal, K.A. Quigg, B.V. Green and R.T. French JJ.A., November 15, 2018. Digest No. TLD-January22019003