Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether the plaintiff’s action against a Crown corporation was a nullity for failure to give “two months previous notice in writing” under s. 15(1) of the Proceedings Against the Crown Act (PACA).
• Calculation of the two-month statutory notice period required interpretation of “month” as “calendar month” and application of the Interpretation Act’s timing rules.
• Undisputed dates showed written notice was served on September 21, 2022 while the Notice of Action was filed on November 18, 2022, leaving less than the required two calendar months between notice and commencement.
• The court applied strict compliance jurisprudence under PACA and similar Crown proceedings statutes, holding that non-compliance with mandatory notice provisions renders the action a nullity and deprives the court of jurisdiction.
• Defendant successfully used Rule 23 to obtain a pre-trial determination on the legal effect of the notice defect, coupled with Rule 37.10 to strike the claim and grant judgment, with Rule 22 summary judgment principles also satisfied.
• Although the underlying dispute concerned fairness of an RFP process and alleged breach of contract and misfeasance, the court never reached the merits because the statutory notice defect was fatal to all causes of action.

Background to the dispute and procedural history

The dispute arises from the New Brunswick Liquor Corporation’s (ANBL) decision to award an agency liquor store contract in Hartland, New Brunswick through a competitive Request for Proposals (RFP) process. The plaintiff, 629869 NB Ltd. (Freshmart), had purchased the incumbent agency store operation (Courtyard Convenience) in 2019, relocated it and invested in renovations, and expected the existing ANBL agency licence to be renewed when it expired on March 31, 2021. Instead of renewing, ANBL issued an RFP in November 2020 seeking proposals to operate the Hartland agency store. Two bids were submitted: one by Freshmart and one by Hartland Valu Foods Inc. After internal evaluation, ANBL staff recommended Valu Foods, and that recommendation was approved by the Acting President and CEO and then by ANBL’s Board of Directors on March 15, 2021. The decision was communicated to both proponents on March 17, 2021. Freshmart challenged that decision in a judicial review proceeding (2024 NBKB 200), arguing that ANBL’s decision was unreasonable, inadequately reasoned, and procedurally unfair, while ANBL and Valu Foods maintained that the process, scoring, and communication were transparent and fair. The judicial review was dismissed. Separately from judicial review, Freshmart commenced this civil action seeking damages and declaratory relief. It alleged that ANBL’s RFP and award process was unlawful and unfair and gave rise to civil liability. ANBL, as a designated Crown corporation under the New Brunswick Liquor Corporation Act and PACA, responded with a motion to determine preliminary legal questions under Rule 23, to strike the Statement of Claim, and to obtain judgment without trial.

Parties and nature of the claims

The moving party and defendant is the New Brunswick Liquor Corporation, a Crown corporation subject to the Proceedings Against the Crown Act. The responding party and plaintiff, 629869 NB Ltd., is a New Brunswick corporation operating from Hartland. In its Notice of Action with Statement of Claim, the plaintiff advanced several causes of action tied to the RFP and award decision. It alleged that ANBL conducted an unfair RFP, breached a duty of fairness, intentionally inflicted economic harm by unlawful means, committed misfeasance in public office, and breached contractual obligations. The plaintiff’s pleading also asserted compliance with PACA, stating that advance notice of the action had been provided under s. 15. ANBL’s Statement of Defence put this compliance squarely in issue. Among other things, it pleaded that no proper notice was served, that any notice did not satisfy subsection 15(1), that the action was barred by PACA, and that the court therefore lacked jurisdiction.

Statutory framework and the notice requirement under PACA

A central provision was s. 15(1) of the Proceedings Against the Crown Act. It provides that no action shall be brought against the Crown, or a Crown corporation, unless two months previous notice in writing has been served on the Attorney General or, in the case of a Crown corporation, on the corporation itself. The notice must explicitly state the proposed plaintiff’s name and residence, the cause of action, and the court in which it will be brought. Section 21 of PACA reinforces that proceedings against the Crown may only be brought as provided in the statute, making the PACA scheme exclusive and mandatory. The judge approached the phrase “two months previous notice in writing” as a question of statutory interpretation. He turned to the Interpretation Act, which defines “month” as “calendar month” and provides that where a period of time from a specified act or event is prescribed, the calculation excludes the day of that originating event. He also reviewed New Brunswick case law on “month” and “calendar month,” including Chiasson v. Century Insurance Co. of Canada, Pelletier v. Nolet, and more recent authority, all of which support the view that a calendar month runs from a given date in one month to the corresponding date in the following month (or, if there is no corresponding date, to the last day of that next month). On this approach, two calendar months is not a fixed number of days but a period measured by calendar dates.

Key timing facts and calculation of the notice period

The key dates were not seriously in dispute and were established on the record and through affidavit evidence. The plaintiff’s own materials indicated that notice under PACA was served on ANBL on September 21, 2022. The Notice of Action with Statement of Claim Attached was then filed with the court on November 18, 2022. The plaintiff argued that proper written notice had been given and that the action was therefore validly commenced. ANBL argued that, even accepting the plaintiff’s version of service, the two-month notice requirement was not met because the action was filed too soon after notice. Applying the Interpretation Act and the authorities on calendar months, the judge accepted the defendant’s position. To have validly commenced an action on November 18, 2022, the plaintiff would have had to give written notice on or before September 18, 2022. Notice provided on September 21, 2022 fell short of two full calendar months. The court characterized s. 15(1) as requiring no less than two calendar months of prior notice, and treated the requirement as strict.

Strict compliance with PACA and the effect of non-compliance

The court then situated this timing analysis within broader jurisprudence on proceedings against the Crown. Drawing on decisions from New Brunswick and other provinces, the judge underscored that PACA’s notice provisions are mandatory rather than discretionary, and that courts have consistently held that a failure to comply strictly renders an action against the Crown null and void. Informal or implied notice is not sufficient. The decision referenced authorities such as B.M.G. Farming Ltd. v. New Brunswick, Biseau v. Harnish, Levesque v. New Brunswick, Seymour v. New Brunswick (Department of Municipal Affairs & Environment), Kirkpatrick v. McIntosh, Brooks v. Fredericton City Police Force, and analogous Nova Scotia and Ontario cases. Across these decisions, courts emphasize that they lack discretion to “soften the harshness” of the statutory notice rule: if a plaintiff sues the Crown or a Crown corporation without first giving compliant notice within the prescribed time, the result is that the action is a nullity and the court lacks jurisdiction to entertain it. In this case, that line of authority led directly to the conclusion that the plaintiff’s failure to provide two full calendar months’ previous written notice before filing the action was fatal, regardless of any alleged knowledge by ANBL or merits-based considerations of fairness in the procurement process.

Use of Rule 23, jurisdiction, and procedural disposition

ANBL brought a comprehensive motion seeking a pre-trial determination of questions under Rule 23, striking of the Plaintiff’s claim, and judgment under Rule 37.10, with an alternative request for summary judgment under Rule 22. The court first addressed whether Rule 23 was an appropriate vehicle for resolving the notice and jurisdiction issues. It noted that Rule 23.01(1)(a) permits determination of a question of law raised by the pleadings and that Rule 23.01(2)(a) allows the court to decide whether it has subject-matter jurisdiction, with evidence admissible and expected on such a motion. Jurisprudence such as New Brunswick Community College v. Vihvelin, NBCC v. Barton, LeBlanc v. Boisvert, and others sets out the different tests and levels of stringency under these provisions. The judge concluded that no material factual dispute existed regarding the dates of service and filing, and that the meaning and effect of the “two months previous notice” requirement was a pure question of law suitable for determination under Rule 23.01(1)(a) and, alternatively, a jurisdictional question under Rule 23.01(2)(a). He rejected the plaintiff’s argument that Rule 23 was procedurally inappropriate or that the motion improperly relied on evidence. Because the action’s validity and the court’s jurisdiction turned entirely on the legal effect of undisputed dates under PACA, Rule 23 provided a proper pre-trial mechanism.

Outcome, judgment, and treatment of costs

Having found that the plaintiff did not provide two months’ previous written notice as required by s. 15(1) of PACA, the court held that the action was invalid and must be treated as a nullity under s. 21. On that basis, it concluded that the claims were statute-barred and that the court lacked jurisdiction to address the merits of the plaintiff’s causes of action. The judge determined that there were sufficient grounds to strike or dispose of the entirety of the Plaintiff’s pleading and to grant judgment under Rule 37.10(a), specifically noting that the defect could not be cured by any amendment because failure to comply with the statutory notice requirement goes to the very validity of the proceeding rather than the form of the pleadings. The court also observed that, even if its Rule 23 analysis were set aside, the same conclusion would support summary judgment under Rule 22.01(3) and Rule 22.04(1)(a) because there was no existing cause of action and thus no genuine issue requiring a trial. In the result, the defendant, New Brunswick Liquor Corporation, was the successful party. The court struck the plaintiff’s claim in its entirety and granted judgment in favour of ANBL. On costs, the judge held that the defendant was entitled to costs as the successful party and directed the parties to attempt to agree on an amount within 20 days, with short written submissions to follow if they could not agree. The decision does not specify any quantum of damages or costs, and because the merits were not reached and costs were left for later agreement or determination, the total monetary amount ordered in favour of the successful party cannot be determined from this decision.