Executive Summary: Key Legal and Evidentiary Issues

• Allegations that flooding at 432 La Vallée in Memramcook, New Brunswick, was caused by improper drainage and water runoff from Route 106, affecting the plaintiff’s ability to rebuild after a fire.
• Defendants’ position that DTI only performs winter maintenance on Route 106, that capital roadwork is decided by the Village of Memramcook, and that there have been no major changes to Route 106 in at least 50 years.
• Dispute over whether the defendants’ denials of knowledge of flooding and improper drainage are contradictory to their admissions about the existence and receipt of the plaintiff’s engineering report.
• Claim that refusal by DTI employee Lisa Parsons to consent to the recording of meetings, despite a medical note about the plaintiff’s learning disability, constituted a breach of section 7 of the Canadian Charter of Rights and Freedoms.
• Reliance on section 4(8) of the Proceedings Against the Crown Act, section 70.1 of the Highway Act, and case law on Charter damages to challenge the maintainability of claims against the Crown and against an individual Crown employee.
• Multiple procedural motions under the Rules of Court, including motions to strike pleadings, summary judgment on the Charter claim, substituted service by email, security for costs, and a request for permission to file documents electronically.

Factual background and parties

The plaintiff, Kevin Topping, owned property at 432 La Vallée in Memramcook, New Brunswick, at all relevant times and has since sold the property and now resides in Vernon, British Columbia. He filed a Notice of Action with Statement of Claim Attached against the Department of Transportation and Infrastructure (DTI) and Lisa Parsons. DTI is the Department within the Province of New Brunswick that maintains and oversees highways, and Lisa Parsons was employed by DTI as an assistant district engineer during the times relevant to this litigation. The action relates to flooding on the plaintiff’s property, which he alleges is caused by water runoff from Route 106 and which he says prevented him from rebuilding after a fire.

The plaintiff’s allegations and claimed losses

The plaintiff contacted the defendants around 2022 to advise that he was experiencing flooding on his property, which he suggested was caused by runoff from Route 106. He obtained an engineering report that opined on water drainage patterns on his property and on the cause of those patterns, and he provided that report to the defendants. He also provided a doctor’s note suggesting that, for employment purposes, he should be accommodated by being allowed to record meetings. He requested to record his meetings with the defendants, and Lisa Parsons told him she would not consent to having their meetings recorded. In his Claim, the plaintiff alleges that his property has experienced flooding due to improper drainage along Route 106, that DTI has failed to take remedial action, that the denial of his request to record meetings violated his section 7 Charter rights, and that he has suffered immediate repair costs, loss of rental income, increased construction costs, and emotional distress.

The defendants’ defence and reliance on statutes

In their Defence, the defendants state that DTI is responsible for winter maintenance on Route 106, while the Village of Memramcook is responsible for decisions on capital roadwork. They assert that DTI undertook work on parts of Route 106 in 2018 at the direction of the Village of Memramcook but did not change the elevation of the road or remove a crown on the highway, and that no major changes have been made to Route 106 in at least 50 years. They state that the plaintiff’s inability to undertake work on his property was due to the denial of a request for a permit by the Southeast Regional Service Commission. The defendants deny knowledge of any flooding of the property and deny that any flooding is caused by improper drainage on the highway. They deny that the refusal to allow the plaintiff to record meetings constituted a breach of section 7 of the Charter. They also deny that an action could be maintained against Lisa Parsons personally for an alleged breach of Charter rights and rely on section 4(8) of the Proceedings Against the Crown Act, which provides that no proceedings lie directly against an officer or agent of the Crown for acts or omissions in the course of their duties. In addition, they rely on section 70.1 of the Highway Act, which provides that the Crown is immune from liability for nuisance.

Procedural motions before the court

The court heard three motions from the plaintiff and one motion from the defendants. The plaintiff’s motions sought to strike out portions of the defendants’ Statement of Defence under Rule 23 of the Rules of Court and to obtain an order allowing him to file documents electronically rather than in hard copy format. The defendants’ motion sought to dismiss the Claim against Lisa Parsons under Rule 23, to obtain security for costs under Rule 58.01(a), and to obtain an order for substituted service. At the outset of the hearing, with the consent of the parties, the court confirmed that the affidavits in the Record would be considered in addressing all motions. The court also deemed certain previously served but not formally filed affidavits and a recent Notice of Motion and affidavits from the plaintiff to be filed for the purpose of the motions, despite filing deficiencies that had led the clerk’s office not to stamp them. The defendants’ counsel had prepared a Record with numbered pages including all motions and affidavits filed by the parties, which the court noted was not required by the Rules of Court but assisted in hearing the motions on their merits.

Issues identified by the court

The court identified the following issues on the plaintiff’s motions: whether parts of the Statement of Defence should be struck under Rule 23 and whether the plaintiff should be granted permission to file documents electronically rather than in hard copy format. On the defendants’ motion, the issues were whether the court should strike out the plaintiff’s claim against Lisa Parsons under Rule 23, grant summary judgment on the plaintiff’s section 7 Charter claim under Rule 22, order substituted service allowing service by electronic mail, and order security for costs under Rule 58.01(a).

Legal framework for motions to strike under Rule 23

The court explained that Rule 23 deals with the determination of questions before trial and that Rule 23.01(1) allows a party to seek determination of a question of law, to strike out a pleading that does not disclose a reasonable cause of action or defence, or to obtain judgment on an admission. Rule 23.02 provides that, except with leave of the court, evidence on such applications is limited to transcripts of relevant examinations and affidavits necessary to identify documents or prove their execution. The court referred to Optimum Insurance Company Inc. v Donovan, where the Court of Appeal stated that evidence permitted under Rule 23 is limited and that leave to admit further evidence should not be granted absent exceptional circumstances, and to Sewell v ING Insurance Company of Canada, where the Court of Appeal stated that the record on a motion to strike should be comprised exclusively of the pleadings and that evidence purporting to provide a factual foundation is inadmissible. The court also referred to Druet v Girouard, which held that evidence is not admissible on an application for determination of a question of law under Rule 23.01(1)(a), and to International Association of Firefighters, Local 1053 v The City of Fredericton. On that basis, the court stated that the plaintiff’s motion to strike portions of the Statement of Defence under Rule 23 was limited to consideration of the pleadings and that no additional information or documentation in the affidavits could be considered in that context.

Plaintiff’s motion to strike alleged contradictory or misleading statements

The plaintiff argued that paragraphs 5(a) and 5(b) of the Statement of Defence, in which the defendants state that they have no knowledge of ongoing flooding on the plaintiff’s property and deny improper drainage along Route 106 causing flooding, were contradicted by admissions in paragraphs 5(c) and 5(d) that the plaintiff obtained an engineering report from Fisher Engineering and that he provided the report to DTI. The court held that the admissions in paragraphs 5(c) and 5(d) amount only to an acknowledgement that the report exists and that it was provided to DTI, and do not amount to an acceptance of the findings outlined in the report. The court also noted that, under Rule 27.07, a party must deny every allegation of fact in the opposite party’s pleading that it disputes, and that all other allegations are deemed admitted unless the party alleges it has no knowledge of them. The court accepted the defendants’ submission that a pleading of “no knowledge” does not mean they are unaware of the claim, but that they are not in a position to admit or deny the pleaded fact and that it will be the plaintiff’s burden to establish the facts. The court concluded that the defendants’ statement that they have no knowledge of ongoing flooding and no knowledge of the cause of any flooding is not inconsistent with the remaining allegations in the Statement of Defence and declined to strike the defence on this basis.

Plaintiff’s motion to strike the Charter-related portions of the defence

The plaintiff also moved to strike parts of the Statement of Defence responding to his allegations of a breach of section 7 of the Charter. The Statement of Claim pleads that, as someone with a learning disability, the plaintiff submitted a medical note requesting permission to record interactions with DTI officials, that Lisa Parsons denied this request, and that this denial violated section 7. In their defence, the defendants admit that the plaintiff provided a medical note requesting accommodation for work in the form of recorded meetings and that Lisa Parsons advised she would not consent to the plaintiff recording conversations and meetings by audio and/or video recording. They state that the denial of this request was not a violation of the plaintiff’s section 7 Charter rights and further plead that section 7 does not apply in the circumstances, that a section 7 claim cannot be maintained against Lisa Parsons personally, that their actions did not breach section 7, and that any breach, if found, would be justified under section 1. The court interpreted the plaintiff’s motion as one to strike the defence on the basis that it did not disclose a reasonable defence and applied the “plain and obvious” test under Rule 23.01(1)(b). The court concluded that the defendants are entitled to make denials in their pleadings and to raise these positions as part of their defence, that disputed issues should be resolved at trial, and that the plaintiff’s belief that factual elements support his allegations is a matter for trial. The court therefore declined to strike the defence relating to the alleged breach of section 7.

Order allowing electronic filing of documents

In his motion, the plaintiff requested an order allowing him to file documents electronically, including affidavits, rather than filing hard copies. He based this request on the fact that he resides in British Columbia, is self-represented, and has experienced difficulty filing documents compliant with the Rules of Court, including delays and costs from sending several paper versions that were returned by the clerk’s office as non-compliant. The defendants took no position on this request. The court noted that, under Rule 4.06(3), the general rule is that documents are filed by leaving them or mailing them to the clerk’s office, but that electronic filings are permitted in civil matters in certain circumstances under Rule 4.06(4.01). The court observed that the Court of King’s Bench is “woefully unequipped” to deal with electronic filing and that electronic filing remains the exception rather than the norm. The court found that the plaintiff’s repeated filing issues created delays, costs, and hampered access to justice for him. On that basis, the court ordered under Rule 4.06(4.01) that the plaintiff is permitted to file documents electronically in this action. The order requires documents to be in PDF format and deems them filed on the date shown on the acknowledgement of receipt confirming compliance under the Rules of Court. Once the court confirms compliance of a document filed electronically, the plaintiff must send the original hard copy to the court. Compliance under the Rules for documents filed electronically continues to be assessed by the clerk’s office.

Motion to strike the claim against Lisa Parsons

The defendants applied under Rule 23 to strike the plaintiff’s claim against Lisa Parsons. They argued that the Statement of Claim fails to disclose a reasonable cause of action under section 7 of the Charter in relation to the decision to deny recording of meetings, that section 4(8) of the Proceedings Against the Crown Act precludes a claim against a Crown employee for acts performed within the scope of duties, and that employees or officers of the Crown cannot be held personally liable for Charter breaches. The court focused on the latter two arguments. It noted that section 4(8) provides that no proceedings lie directly against an officer or agent of the Crown in respect of anything done or omitted to be done in the course of the performance or purported performance of their duties. The court referred to Brooks v Fredericton City Police Force, which states that, to pursue a claim against a Crown employee, a plaintiff must plead material facts showing the employee acted outside the course of their duties. Here, the allegations against Parsons and the facts pled concerning the alleged wrongdoing specifically reference conduct in the course of her employment. Any wrong committed in the course of employment would be actionable against DTI, not against Parsons personally. The court also accepted the defendants’ argument that, under Vancouver (City) v Ward, damages arising from a breach of Charter rights may only be recovered against the state and not against individual actors. Apart from the allegation of a breach of section 7, the plaintiff did not plead any independent tort or actionable wrong against Parsons. On that basis, the court held that the claim against Parsons in her personal capacity could not be maintained. Under Rule 23, the court struck the Statement of Claim in its entirety as against her and directed that the motion be converted into a motion for judgment dismissing the claim against Parsons in its entirety under Rule 37.10(a). The remaining portions of the Statement of Claim against DTI will continue through the steps of the litigation process.

Summary judgment on the plaintiff’s section 7 Charter claim

The defendants also sought summary judgment under Rule 22 on the plaintiff’s section 7 Charter claim against the defendants. The court noted that, in the context of Rule 22 motions, it may consider a broader evidentiary record found in the affidavits of the parties. The defendants argued that it is “plain and obvious” that the plaintiff’s Charter claim does not disclose a reasonable cause of action and maintained that refusal to record a meeting does not engage any rights protected by section 7. The court set out the text of section 7 and summarized the case law on the scope of the rights to life, liberty and security of the person, including Carter v Canada (Attorney General) on the right to life, Godbout v Longueil (City) and Association of Justice Counsel v Canada (Attorney General) on liberty, and New Brunswick (Minister of Health and Community Services) v G(J) and Blencoe v British Columbia (Human Rights Commission) on security of the person. The court concluded that the plaintiff’s right to life, as described in Carter, is not engaged by the defendants’ refusal to consent to recording a meeting with government employees. It found that the plaintiff’s right to liberty, whether in the physical sense or in the sense of personal autonomy, is not engaged by the refusal to consent to recording a meeting. On security of the person, the court acknowledged that the plaintiff outlined in his affidavit the impact of the refusal to permit him to record the meeting and the impact of the alleged failure to accommodate his learning disability, but it held that, viewed objectively, the impact cannot be categorized as affecting the psychological integrity of a person with reasonable sensibilities. The court observed that the plaintiff did not have any Charter or other legal right to require the defendants to meet with him and that the defendants were entitled to refuse to meet with him and to refuse the recording of the meeting. It held that the plaintiff’s right to security of the person is not engaged by the refusal to consent to recording a meeting with government employees and that the Charter does not provide a legal right to a meeting with government officials about one’s personal property or to record such a meeting. The court stated that allowing this portion of the claim to move forward, considering the lack of legal foundation, could unduly delay completion of the matter. It therefore held that a claim for breach of the plaintiff’s section 7 Charter rights cannot be maintained against DTI and, under Rule 22, struck the portions of the Statement of Claim seeking relief under section 7 against DTI. The remainder of the claims against DTI may proceed through the litigation process.

Order for substituted service by email

The defendants sought an order for substituted service under Rule 18.04, which may be granted where personal service is required and where it appears impractical to effect prompt personal service. The court agreed with the defendants’ submission that personal service was impractical and untimely because the plaintiff resides in British Columbia, had changed addresses since filing the action, and had requested on multiple occasions to be served via email due to travel outside the country. The plaintiff also expressed a preference in oral submissions to be served by email. The court therefore permitted the defendants to personally serve the plaintiff by email at a specified address. The order requires that counsel serving documents include their name, address, and telephone number, and provides that service will be deemed complete once the plaintiff acknowledges receipt and acceptance, similar to the Rules governing service by email of a solicitor of record.

Security for costs motion

The defendants requested an order for security for costs of $10,000 under Rule 58.01(a) on the basis that the plaintiff is ordinarily resident outside New Brunswick. The court noted that Rule 58.01(a) allows an order for security for costs where the plaintiff is a non-resident and that Rule 58.01 also refers to other situations that can give rise to security for costs, including where a defendant holds an unpaid costs judgment against the plaintiff, where a nominal plaintiff appears to lack sufficient assets in New Brunswick, where an association or corporation lacks sufficient assets in the province, or where a defendant is specifically entitled to security by statute. The court stated that none of these other situations are present. The defendants suggested that a lien placed on the property for unpaid contractors and a notice from the Village of Memramcook relating to “unsightly property” demonstrate a failure to respect judgments or orders, but the court found no evidence in the record of the plaintiff failing to comply with judgments or orders of the court. The court observed that the defendants’ argument focused on the plaintiff’s financial means and capacity to pay security for costs rather than his capacity to pay a costs order. It noted that the inability to pay a costs award is a consideration in awarding security for costs, but that a party’s capacity to pay security for costs is not a reason to award security in the absence of other elements under Rule 58.01. The court also considered Windsor Energy et al v Northrup et al and UA Local 772 v UA but found those situations different from the present case. On the evidence and arguments before it, the court found an insufficient basis to order security for costs based solely on the plaintiff’s province of residence and declined to award security for costs.

Final disposition and monetary outcome

In its disposition, the court ordered that the plaintiff’s request to strike paragraphs of the defendants’ Statement of Defence is denied, that the plaintiff is allowed to file documents with the court electronically in this action subject to compliance with the Rules of Court, that the defendants’ request to strike the claim against Lisa Parsons in her personal capacity is allowed and judgment is entered dismissing the claim against her with the style of cause to be amended accordingly, that the defendants’ request for partial summary judgment dismissing the plaintiff’s section 7 Charter claim against DTI is allowed, that the defendants’ request for substituted service by email is allowed with service effective upon the plaintiff’s acknowledgement of receipt, and that the defendants’ request for security for costs under Rule 58.01(a) is denied. The court also ordered that, considering the partial success of the parties on the motions, each party shall bear its own costs. The decision does not award any damages or set out any specific monetary award, and no exact amount of monetary award, costs, or damages in favour of any party can be determined from this decision.