Province asks court to dismiss AIM's bid to quash suspension of Saint John scrapyard
Company's approval to operate expired April 30, making challenge moot, lawyers argue in court documents
The New Brunswick government wants the Court of King's Bench to toss out American Iron & Metal's request for a judicial review of the environment minister's decision to suspend the company's approval to operate.
The suspension at its Saint John scrapyard followed last fall's massive fire.
The province has filed a notice of motion seeking an order "striking out and dismissing" AIM's application of Feb. 12, on the basis it has become a moot point, as the company's approval to operate expired at the end of April.
The company unsuccessfully attempted to have its approval to operate the waterfront metal recycling plant on the city's west side renewed, documents recently filed with the Saint John courthouse reveal — another decision the company plans to challenge in court.
"There is no longer any 'live controversy' between the parties," lawyers for the province argue in the notice of motion, noting AIM "admits and concedes" in its application for review that its approval was valid only until April 30.
"Quashing or setting aside the minister's decision to suspend the now expired approval to operate would not have any practical effect because it would not alter the legal relationship between the parties," Frederick McElman and Lara Greenough, of Stewart McKelvey, contend.
'Abuse of process,' and 'frivolous'
In addition, they argue AIM's application does not raise issues of broad relevance or a novel question of law.
As a result, AIM's application "fails to disclose a reasonable claim for relief against the Province, is an abuse of process, and has become frivolous."
Hearing the matter would fail to respect the court's proper law-making function and would be a waste of judicial and party resources, they say.
The province has requested costs and any other relief the court deems just.
Romain Viel, a lawyer representing AIM, did not immediately respond to a request for comment Tuesday.
Suspension unreasonable, AIM argues
Former environment minister Gary Crossman suspended AIM's approval to operate on Sept. 19 because he was "of the opinion that there was an unauthorized release of contaminants" during the Sept. 14 scrapyard fire, in contravention of the Clean Air Act.
The fire burned for two days and prompted a city-wide shelter-in-place order because of hazardous smoke.
The
joint provincial-Port Saint John task force investigation into the fire
concluded AIM's waterfront location, not far from hundreds of west-side
homes, is 'entirely inappropriate given its now known hazards and
risks.' (Submitted by Ed Moyer)
American Iron & Metal wants a judge to quash the suspension, which it says has prevented the company from operating its business at the facility "in any fashion." The company alleges Crossman acted "arbitrarily and unreasonably," exceeded his jurisdiction and breached his duty of procedural fairness.
AIM contends it should have been given an opportunity to make submissions before the suspension, and that an order with a "narrower scope" would have been sufficient to satisfy the objectives of the act.
Urged to withdraw application for judicial review
On May 16, counsel for the province wrote to AIM's lawyer, requesting the company withdraw its application for judicial review, given the expiry of its approval.
"In light of this development, and in the interest of costs and time savings to the parties and the court, please advise if you client is prepared to withdraw," wrote McElman. "Our client would be agreeable to signing a consent order to discontinue the application with no costs at this time."
He requested a response no later than May 22.
'Not eligible' for approval renewal
On May 24, Viel told McElman that AIM received an email from the new Environment Minister Glen Savoie on May 9, the day after he was officially appointed to replace Crossman, who resigned.
"Savoie determined that AIM was 'not eligible' to renew the approval to operate," wrote Viel. "AIM disagrees with this determination and will be seeking judicial consideration of the decision."
Department of Environment spokesperson Kelly Cormier declined to comment Tuesday on why AIM was deemed ineligible for renewal, citing the ongoing court proceedings.
AIM alleges government withholding records
AIM's salvage dealer's licence also remains revoked. Public Safety Minister Kris Austin revoked it on Dec. 29, based on the joint provincial-Port Saint John task force investigation, which concluded future fires at the scrapyard are likely, and that a "catastrophic" fire could happen again.
The company has filed a separate application seeking a judicial review of that decision. It argues Austin exceeded his jurisdiction and breached his duty of procedural fairness by failing to consider AIM's submissions on why a revocation was "unnecessary" and that the indefinite period is "unreasonable."
AIM has three other challenges before the court, all involving Right to Information requests it filed with the Department of Public Safety, the Premier's Office, and the Executive Council's Office late last year.
A hearing date for the province's motion to dismiss has not yet been set at the Saint John Court of King's Bench. (Roger Cosman/CBC)
The company requested copies of "all information and documents relating to AIM from Jan. 1, 2023 to present," including those regarding the September fire, referred to as "The Incident," the facility, its approval and suspension, the task force, Austin's letter and Public Safety's inspections and investigations into the facility, or any of AIM's other locations in New Brunswick under the Salvage Dealer's Licensing Act or the Unsightly Premises Act.
AIM contends the government departments failed to disclose all non-excluded records in their custody or under their control, and filed referrals with the Court of King's Bench — a procedure established by the Right to Information and Protection of Privacy Act, allowing an applicant who has requested access to records to ask that the court review the disclosure provided by the public body and either order further disclosure or confirm the head of the public body's decision to refuse access.
Justice Thomas Christie, of the Court of King's Bench in Fredericton, is scheduled to hold a pre-trial conference on AIM's two applications for judicial review and three referrals later this month.
The province has requested its motion to dismiss be heard on or before that day. As of Tuesday, no date has been set, according to court staff.
Surprise Surprise Surprise
https://www.cbc.ca/news/canada/new-brunswick/judge-tosses-lawsuit-against-province-1.6346812
https://www.cbc.ca/news/canada/new-brunswick/thomas-christie-judge-transfer-1.4426285
Andrew Martin
Imagine the government going this hard against an organization whos refinery could've leveled part of the city when it caught fire..? Guess AIM hasn't paid the right politicians yet
Wilbur Ross
Corporations like AIM look for places like NB to set up shop because they know they can get away with so much more.
Ronald Miller
Reply to Wilbur Ross
It appears they can't, once again reality and facts seem to be playing keep away with what you actually think.
Wilbur Ross.
1 hr ago
2 men died ... massive 5 alarm fire ... REALITY.
Reply by Wilbur Ross.
1 hr ago
$151,000 fine ... brutal 😭😭😭
Reply by David Amos.
12 min ago
So what is the reality of this nonsense?
Comment by Raymond Leger.
2 hrs ago
Sad state of affairs we have here in New Brunswick
Reply by David Amos.
11 min ago
Yup
Comment by Gary Webber.
3 hrs ago
Tire recycling plant in Minto burnt for days and not a word out of public safety or Higgs, do you suppose Higgs is more concerned about Saint John than minto?
Reply by AL BANNISTOR.
3 hrs ago
absolutely!...until Minto is as big a part of the economic engine of the province...well...you know
Reply by Gary Webber.
2 hrs ago
Black smoke billowing for 3 days was my point not the economy
Reply by MR Cain.
2 hrs ago
Not true at all. New Brunswick's Emergency Measures Organization advised people in the Minto and Chipman areas to avoid the smoke coming from the building. The organization said residents should stay indoors, close windows, avoid outdoor activities and turn off air exchangers.
The New Brunswick government issued an air quality advisory Saturday afternoon urging Minto residents to take precautions to avoid smoke exposure.
Premier Blaine Higgs took to Twitter to thank emergency responders for their "quick action" in battling the overnight blaze.
The province also began assessing the environmental impact as reported 8 Jan 2020.
Reply by MR Cain.
2 hrs ago
New Brunswick's Emergency Measures Organization advised people in the Minto and Chipman areas to avoid the smoke coming from the building. The organization said residents should stay indoors, close windows, avoid outdoor activities and turn off air exchangers.
The New Brunswick government issued an air quality advisory Saturday afternoon urging Minto residents to take precautions to avoid smoke exposure.
Premier Blaine Higgs took to Twitter to thank emergency responders for their "quick action" in battling the overnight blaze.
The province also began assessing the environmental impact as reported 8 Jan 2020
Reply by MR Cain.
2 hrs ago
Not true at all; check the news.
Reply by MR Cain.
2 hrs ago
New Brunswick's EMO advised people in the Minto and Chipman areas to avoid the smoke coming from the building and issued an air quality advisories.
Reply by MR Cain.
2 hrs ago
The premier took to Twitter to thank emergency responders for their "quick action" in battling the overnight blaze. The province also began assessing the environmental impact as reported 8 Jan 2020
Reply by MR Cain.
1 hr ago
And then a year later the leader of the purple people eater party gets an offer he can't refuse, putting Minto on the map, and a commitment for a new jail!
Reply by David Amos.
9 min ago
content deactivated –
Why not ask Higgy's Minister of Public Safety?
Comment by Raymond Leger.
3 hrs ago
Sad state of affairs we have here in New Brunswick
Reply by David Amos.
8 min ago
Kinda Redundant EH?
Comment by William Peters.
4 hrs ago
The province will have to spend to prosecute this and AIM's lawyers know this. It is well understood that NB doesn't have the resources to spend or the will to spend under Higgs. I would not be surprised if they have the upper hand here, seeing how unwilling we are to show that the public service does have value.
Reply by MR Cain.
3 hrs ago
AIM also provides a service we need. If ordered to move operation, the public will pay.
Reply by AL BANNISTOR.
3 hrs ago
they have lawyers on retainer...so use them!
Reply by David Amos.
7 min ago
Rest assured they will
Comment by Barry Brice.
5 hrs ago
Are the feds involved in this? What is your local MP saying about this? He shouldn't be silent. I'd say looking at the polls, Wayne Long could use some votes. As a born and raised Saint Johner now living out west, I visited Saint John last year and that yard on the west side puts a major black eye on the city. Even the people I was visiting with said the same thing. You have a great downtown, but the westside looks like a dump.
Reply by MR Cain.
3 hrs ago
Aside from the abrogation of the lease agreement with the feds, I imagine that Environment and Fisheries should be involved given the change in operation and environmental threats.
Reply by David Amos.
4 min ago
Why have we always your favourite city Stinktown?
Comment by Greg Miller.
7 hrs ago
One of AIM's tractor-trailers pulled along side of me in traffic yesterday. The condition of the trailer was consistent with what we read about AIM in the news. I kept my distance!
Reply by David Amos.
2 min ago
Perhaps you should report it to Minister Austin's minions
Comment by Raymond Leger.
9 hrs ago
Higgs interfering with court proceedings and sicking the Province's lawyers on it. Wonder how much this is going to cost taxpayers?
Reply by Doug kirby.
9 hrs ago
Everytime he speaks it costs lawyers fees
Reply by AL BANNISTOR.
8 hrs ago
small price to pay to rid ourselves of this scourge...lets not forget the port started this mess giving them the lease
Reply by Greg Miller.
7 hrs ago
"Provinces' lawyers" -- from what I've read of recent cases -- they are far from "batting 500".
Reply by MR Cain.
5 hrs ago
Don't forget that the operation increased in intensity, which was not part of the company's application.
Reply by Geoff MacDonald.
4 hrs ago
At no point does the article refer to Higgs. Clearly he's got it made though because he lives rent free inside that head of yours. This issue has bipartisan support - no one likes AIM and no one wants it operating - except for you, apparently.
Reply by MR Cain.
3 hrs ago
The province failed in ensuring previous incidents and subsequent orders to make improvements were made. Hard to believe that in all this time fire suppression is now an issue.
Reply by AL BANNISTOR.
3 hrs ago
in any case...send'em packin!
Reply by MR Cain.
3 hrs ago
and pay for their move
Reply by David Amos.
49 min ago
Thats an under statement
Reply by David Amos.
just now
Every time he speaks I laugh
https://www.cbc.ca/news/canada/new-brunswick/judge-tosses-lawsuit-against-province-1.6346812
A New Brunswick judge has thrown out a lawsuit against the province over its COVID-19 vaccination policy for employees.
Justice Thomas Christie of the Court of Queen's Bench said the four applicants were not being forced to do anything, as they had argued.
"In what can only be described as a rambling eight pages of stated 'grounds' in the application, counsel cast the underlying claim as if the applicants are being forced to do something against their will," Christie wrote in his decision, released on Thursday.
"They are not."
Christie also noted some "peculiarities" with the argument made by the applicants, who were represented by James Kitchen, Andrew Clark and Caitlin Green.
"The applicants claim their bodily integrity is at stake, comparing themselves to victims of some of the most brutal of crimes," Christie wrote. "They go further and compare themselves with those who have been held against their will as slaves. Such comparisons are not statements that identify any legal grounds upon which they could properly rely."
- 4 N.B. government employees in court challenging vaccination rule
- Province has no plans to extend vaccination deadline for employees, minister says
Arguments like those, he said, do not belong in a notice of application, "and, frankly, could undermine whatever legitimate issues may be otherwise hidden within such argumentative pleadings."
On Oct. 5, Premier Blaine Higgs announced that all provincial government employees in the civil service, the education system, the health-care system and Crown corporations, as well as staff in long-term care facilities, schools and licensed early learning and child-care facilities must be fully vaccinated by Nov. 19.
Those who didn't meet the deadline, roughly 2,000 workers, were put on unpaid leave.
The lawsuit was filed in November by four government employees — a teacher, a nurse, a health network administration assistant and an educational support teacher — who were all on unpaid leave. They claimed the province's requirement for all employees to be vaccinated was unconstitutional.
The province responded to the lawsuit with a motion, asking the court to dismiss it. A lawyer for the province argued that the issue should first be dealt with by an employee grievance process because that's what the law requires.
- New Brunswick's unvaccinated doctors to be suspended at midnight
- Vaccine mandate for government workers impacts school bus routes
Christie agreed.
In his decision, he wrote that the Supreme Court "has consistently — and recently — reaffirmed that, for those for whom an adjudication regime exists, they must seek resolution in that form."
He said the law is clear.
"In circumstances like this, where adjudication provisions exist, the court has no role as a forum of first instance on the merits of the application."
He also cited recent case law on the subject. In one decision, the court noted: "They are not being forced to get vaccinated; they are being forced to choose between getting vaccinated and continuing to have an income on the one hand, or remaining unvaccinated and losing their income on the other."
Another court stated, "what is at stake for the Applicants here is not forcible vaccination but rather the consequences of one's choice to remain unvaccinated."
Lawyers for the four applicants said they were arguing on behalf of all New Brunswick government employees, but Christie said he wasn't prepared to consider such a broad scope.
While other employees may have felt "deeply offended or conflicted by the policy," they complied with it out of duty, or concern for the welfare of their families, colleagues or the general public, Christie said.
"The applicants have chosen instead to accept unpaid leave. I would think that, based on the present filings, it would be unwise to consider that the applicants' arguments apply to anyone but themselves."
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Judge rules he can't hear lawsuit against province after minister vetoed his transfer
Justice Thomas Christie's recusal over concerns about personal conflict creates 'procedural chaos,' prof says
A Court of Queen's Bench justice has recused himself from a lawsuit against the provincial government because the minister of justice recently vetoed the judge's transfer from Saint John to Fredericton.
Justice Thomas Christie says the transfer, requested by Chief Justice David Smith, was blocked by Justice Minister Denis Landry using controversial new sections of the provincial Judicature Act.
In a crisp seven-page ruling, Christie writes that Landry's veto makes it impossible for him to be impartial in the lawsuit against the same government that stopped his relocation.
"The minister's current involvement in my reassignment places me in an actual conflict of interest position as he is purporting to exercise control over a decision that affects me at the same time I am seized with the present matter," he writes.
"As the judge seized of this case, I am in a position to influence certain interests of the province. At this same time, the minister now purports to be in a position to influence certain interests of mine.
"That intersection of interests cannot exist in a justice system which survives on confidence that the judiciary is, in perception and reality, truly independent."
'Procedural chaos'
Nicole
O'Byrne, an associate law professor at the University of New Brunswick,
says Christie's decision to recuse himself from presiding over a
lawsuit against the government will cause "quite a bit of procedural
chaos." (CBC)
It's not clear what Christie's decision means for the lawsuit, which was filed by the New Brunswick Association of Nursing Homes against the provincial government.
The case is an accounting dispute over how the province calculates the assets and liabilities of the nursing homes in its financial statements.
Christie had already made two preliminary rulings in the case.
"Now you have to put a different judge in to hear that issue," said University of New Brunswick law professor Nicole O'Byrne.
"It causes quite a bit of procedural chaos."
Association unsure of suit's future
Jodi Hall, the executive director of the nursing home association, said she doesn't know what will happen next in the case, but "I'm not anticipating going back to square one."
Hall said the association has confidence in the justice system and the situation was beyond its control.
A spokesperson for Landry said in an email statement that the minister "has not blocked anything."
"Chief Justice Smith has requested approval to transfer Justice Christie to Fredericton, and Minister Landry has had an excellent meeting with the Chief Justice and has undertaken to answer expeditiously," the statement said.
"The Minister will make a decision in the weeks ahead. We have no comment on Justice Christie's decision."
Christie says in his recusal decision that Landry told Smith he wanted time to consult the federal government and local lawyers before approving the transfer.
But Christie writes that even if Landry eventually says yes, the minister's involvement still creates a problem.
"More precisely, it is not just about being seen as beyond any potential source of influence from a litigant — it must be real," he says.
Attorney General Serge Rousselle refused to comment because the case is still before the courts, including the possibility of appealing Christie's decision to recuse himself.
New power for minister
Justice
and Public Safety Minister Denis Landry blocked Christie's transfer
without much explanation, other than a need he felt to consult federal
officials and the New Brunswick bar. (CBC News )
The new sections of the Judicature Act, passed in May, give the minister of justice the power to reject any transfer of a Court of Queen's Bench justice by the chief justice.
Before the changes, the chief justice made transfers unilaterally.
Chief Justice David Smith warned at the time the changes could be unconstitutional because they would compromise the independence of the courts.
Christie echoes that in his recusal ruling, calling the situation "an example of the consequences that flow from the blurring of lines and responsibilities between constitutionally separate branches of government — the executive and the judiciary.
"The history and rationale for that division runs deep and is essential in upholding the proper governance of our democracy."
The province argued during debate on the bill that the changes were needed because judges were often appointed to smaller communities in the province then soon transferred to larger cities.
At the time, the Liberals would not provide an example of a transfer they would veto.
Premier Brian Gallant said in December 2016 the changes were "a pretty mundane and small thing" and the government "may never use the power" it was giving itself.
The Opposition Progressive Conservatives accused the Liberals of wanting to block Smith from moving judges into vacancies where they wanted to appoint judges with ties to their party.
'It's regrettable and it's disgraceful'
PC
MLA Ted Flemming said he was 'shocked but not surprised' by Christie's
decision to recuse himself and blamed the Liberal legislation that
prompted the controversy. (CBC)
Progressive Conservative MLA Ted Flemming said Thursday he was "shocked but not surprised" by Christie's decision and blamed the Liberal legislation.
"The administration of justice is being delayed and compromised because of petty politics," he said. "It's regrettable and it's disgraceful."
He said the government should "instantly" introduce a bill to repeal the changes.
O'Byrne said the courts "will absolutely see more recusals like this" in cases in which the province is a party. She agreed the government should reverse the changes.
Christie was appointed a judge by the federal Conservative government in 2013. He said he has never met Landry and resumes "no malice or ill will" in his decision.
A vacancy opened Nov. 6, and Smith wrote to Landry to say he would transfer Christie effective Nov. 15.
The judge, who still lives in Fredericton, said that when he took the appointment to Saint John, he asked Smith to transfer him to Fredericton when a position in the city opened.
"He was in agreement with my request," Christie writes.
But on Nov. 14, Christie said, Smith told him Landry "would not at that time consent to the assignment" and "would be undertaking consultations with the federal government and the local bar on the issue of my return to Fredericton."
Chief
Justice David Smith has warned that changes to the Judicature Act
involving where New Brunswick judges serve could be unconstitutional
because they would compromise the independence of the courts. (Jacques Poitras/CBC)
In his ruling, Christie questioned whether Landry even has the power to block the move. He said he was not formally designated as living in Saint John when he was appointed in 2013.
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It should prove interesting to see if this comment section stands the test of time
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