The case revolves around a 195-kilometre stretch of highway and what the province was required to pay for maintenance for the final 10 years of the contract. (Guillaume Aubut/Radio-Canada)
The Higgs government has lost its legal bid to avoid paying more than $300 million to the company that built and maintains the Trans-Canada Highway between Moncton and Fredericton.
The New Brunswick Court of Appeal has ruled that the province had no legal right to challenge an arbitration decision that it should pay that amount to the Maritime Road Development Corporation.
The province, through a Crown corporation called the New Brunswick Highway Corporation, felt it should pay MRDC only $164.3 million for the final 10 years of the contract.
MRDC wanted $438.8 million.
Premier Blaine Higgs said Friday he hadn't reviewed the decision and it was too early to say if the province would appeal it to the Supreme Court of Canada. (Ed Hunter/CBC)
The case revolves around a 195-kilometre stretch of highway that became a major political controversy as it was being built: a newly twinned road that, under an initial Liberal government plan in 1998, would require drivers to pay tolls.
The dispute was over what the province was required to pay MRDC for maintenance for the final 10 years of the contract from 2018 to 2028.
When they couldn't agree, the two sides went to an arbitration panel chaired by former Supreme Court of Canada Chief Justice Beverley McLachlin.
It came up with the figure of $307.6 million, close to the midpoint between the two numbers.
The province then tried to challenge that figure.
Appeal court upholds decision
The New Brunswick Highway Corporation filed a motion with the courts asking for a ruling that it could challenge the arbitration decision on legal points.
But the judge hearing that motion said based on previous Supreme Court rulings, the province could only fight the award if there were a "palpable and overriding error," which did not exist in this case.
A three-judge panel of the appeal court has now upheld that.
"NBHC asks this Court to do exactly what the Supreme Court explicitly warned against," Justice Kathleen Quigg wrote in the decision.
Legal precedent "unquestionably instructs" that an appeal court can review a lower court's interpretation of a contract "only in rare cases," Quigg wrote.
"This is not one of them."
Contract signed 25 years ago
Premier Blaine Higgs said Friday he hadn't reviewed the decision and it was too early to say if the province would appeal it to the Supreme Court of Canada.
The initial contract was signed by a Liberal government in 1998 through the highway corporation with MRDC, a private-sector consortium.
Under the 30-year agreement, the province would pay the consortium for maintenance of the highway, while tolls charged to drivers would pay down part of the debt from construction.
Progressive Conservatives led by Bernard Lord promised to do away with tolls on the new highway in the 1999 provincial election. (Radio-Canada)
The toll requirement became a major controversy in the 1999 election, with the Progressive Conservatives, led by Bernard Lord, promising to scrap it.
Lord's government negotiated a change to the contract that led the province to make so-called "shadow toll" payments based on traffic volume.
The province and MRDC agreed in 2013 to replace the shadow tolls with fixed monthly payments.
Under the maintenance part of contract, the highway corporation had to pay MRDC $172 million for the first 20 years of the agreement, with the amount for the final 10 years to be negotiated later.
When that point was reached in 2018, the two sides couldn't agree on the amount, triggering the dispute.
Jacques Poitras has been CBC's provincial affairs reporter in New Brunswick since 2000. He grew up in Moncton and covered Parliament in Ottawa for the New Brunswick Telegraph-Journal. He has reported on every New Brunswick election since 1995 and won awards from the Radio Television Digital News Association, the National Newspaper Awards and Amnesty International. He is also the author of five non-fiction books about New Brunswick politics and history.
Methinks Higgy should not have been surprised by Quigg not going against McLachlin's decision N'esy Pas?
Sam Smithers
Good to see the Higgs gov't going to bat for the average taxpayer as he is always doing. Did they really need to go to a former Supreme court judge who simply picked the middle ground. Higgs was once again asking the opposition to join him in fighting Ottawa on more new taxes coming April 1. But they will never do anything to help NBers and would rather side with a strong China ally.
David Amos
Reply to Sam Smithers
Methinks Higgy could use a better dude writing spin for him than a wannabe "Deacon of Death" N'esy Pas?
Roy Kirk
The bloom gradually comes off the rose of public private 'partnerships', Where the public partner takes the risk and the private partner takes the profit.
David Amos
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Reply to Roy Kirk
Methinks the lawyers who argued on Higgy's behalf made out like bandits with their fees and we are stuck with that bill as well N'esy Pas?
danny rugg
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Be glad when the Cons are booted out the door. What a stink they will leave behind
danny rugg
Be glad when the cons are booted out the door.
David Amos
Reply to danny rugg
When do you think your wish will come true?
Albert Wade
Put the toll back on. I pay to go to PEI NS AND NFLD.
Alex Butt
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We should NOT have to pay tolls to drive on our third world garbage roads! That is why we are taxed to death in fuel, licencing, registration to name a few!
David Amos
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Reply to Albert Wade
Methinks its time for a nap maybe you will make sense when you wake up N'esy Pas?
David Amos
Reply to Alex Butt
I agree
Marcel Belanger
On this I’m in line with the premier, it’s too bad his attempt failed. At the time Lord was do intent on keeping that particular promise, which many said then and have repeated since that he could have reneged on, but no. He persisted and MRDC made it worthwhile for their shareholders. They had him where they wanted him and made a fortune at the expense of we the taxpayers. Freight from NS, PEI and Nfld happily use our nice 4 lane highway with not even a thank you to the taxpayers in NB. Premier Lord with this and other rookie mistakes put our province in debt more than any other premier before or since. Ironically he runs medavie and wants to offer more private sector healthcare services to our government. Hard to believe.
Sam Smithers
Reply to Marcel Belanger
LJR easily wins that award, very impressive his moves from decades ago have cost this province millions upon millions over the years with little in return.
Dan Lee
Reply to Sam Smithers
hmmm lets see....he dint drive a bricklin......he dint used orimulsion.....he dint went 1.2 billion overcost on point lepreau.....he wasnt a money pit for irving......yea he was exactly what we needed..............
Sam Smithers Reply to Dan Lee
You mean he was not involved in things that did not even exist, well done on him. If that is the best you can do in a retort you just proved my point, thank you.
David Amos
Reply to Dan Lee
True but he did lots of things we didn't need done
Samual Johnston
the toll idea was long planned by McKenna preparing for the private sector and then implemented by two appointed (not elected) liberal premiers, then Lord thought removing tolls would let him win when he would've won anyways -- another 4 years of Liberals then 4 of Conservative then 4 of Liberal and now 4 of Conservative. It is a non stop circus and anyone who thinks one party or another is completely to blame is silly - they all had their chances to 'fix' the situation and none did. At least this last poke at it was through the courts and not backroom deals.
David Amos
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Reply to Samual Johnston
"It is a non stop circus"
I see that you finally agree with me
David Amos
Reply to Samual Johnston
Too Too Funny
G. Timothy Walton
Yet another Bernard Lord gift to the taxpayer.
David Webb
Reply toG. Timothy Walton
You don't remember Doug Young of MRDC. You should check out the history of the entire mess, and yes Bernard screwed up. Blind partisanship is not a good thing.
G. Timothy Walton
Reply to David Webb
Oh, this isn't partisan.
Bernie's also worked on our wonderful ambulance service and on behalf of the cellphone giants, just to spread the love around to the rest of the country.
David Amos
Reply to David Webb
Trust that many folks remember Dougy quite well
David Amos
Reply toG. Timothy Walton
Welcome back to the circus Its truly comical that one Conservative Premier was trying to cancel a deal that got another Conservative Premier elected in the first place
Carlson MacKenzie
One of the stupidest things this province has ever done was to scrap the tolls.
Samual Champlain
Reply to Carlson MacKenzie
There have always been pluses and minuses to toll roads but if you look at the condition of tolled highways it makes it a pretty easy case to be for it, then you get to add in the tax savings on maintenance.
G. Timothy Walton
Reply to Carlson MacKenzie
Given the list of stupid things this province has done, I think you may be overstating your position.
Carlson MacKenzie
Reply to G. Timothy Walton
One of I said, not the. It's near the top of the list though IMO. The interprovincial truck traffic alone would be a good source of income. Then there's the tourists who drive though NB to NS, PEI and NFLD.
Samual Champlain
Reply to Carlson MacKenzie
another one was putting them in place
David Amos
Reply to Carlson MacKenzie
Surely you jest
David Amos Reply to G. Timothy Walton
Oh So True
val harris
Higgs loses again.. he better get use to it
Samual Champlain
Reply to val harris
Province was battling on behalf of the taxpayers of NB, so the taxpayers lose, should learn how this works.
Rosco holt
Reply to Samual Champlain
The same can't be said for every court battles.
David Amos Reply to Rosco holt
C'est Vrai
David Amos
Truckers protest from east to west
CBC News · Posted: Sep 19, 2000 6:25 PM ADT
The anger of Canadian truckers rolled across the country from the east to the west Monday while some trucks weren't rolling at all.
Hundreds of truckers - possibly as many as 400 - set up two blockades on the Trans-Canada Highway at the border between Nova Scotia and New Brunswick. The truckers allowed cars and pickup trucks to pass through, but blocked commercial traffic.
The truckers were protesting against the high cost of diesel fuel and against toll highways.
The protest forced the Nova Scotia government to get a court injunction forcing the truckers to move their rigs and end the blockade. A spokesperson for the provincial transportation department said the blockade can't be allowed to continue because it threatens Nova Scotia's economic well being.
Truckers' spokesman Earle Germaine says many truckers he has talked to say they won't budge until the governments of Nova Scotia and New Brunswick shut down the toll booths.
The provincial transportation minister says there isn't much the government can do about fuel prices. But he says he could examine the tax structure.
Earlier, the government said toll highways are not up for negotiation.
David Amos
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Lest We forget
Highway tolls could raise $60M for cash-strapped government
Liberal government presents three electronic toll options for the province, decision coming in Feb. 2 budget
CBC News · Posted: Jan 20, 2016 6:23 PM AST
David Amos
Reply to David Amos
How N.B. drivers battled toll booths
'We pay enough taxes in our fuel now to cover all the costs of these roads. This is just a ripoff!'
CBC Archives · Posted: Jan 05, 2019 9:30 AM AST
David Amos
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Deja Vu Anyone?
How N.B. drivers battled toll booths
'We pay enough taxes in our fuel now to cover all the costs of these roads. This is just a ripoff!'
CBC Archives · Posted: Jan 05, 2019 9:30 AM AST
David Amos
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Reply to David Amos
N.B. eliminates highway tolls
CBC News · Posted: Mar 01, 2000 1:10 PM AST
The government of New Brunswick has eliminated the highway tolls that Prince Edward Island was threatening to take it to court over.
New Brunswick Premier Bernard Lord announced Wednesday that tolls on the Trans-Canada Highway between Moncton and Fredericton were being eliminated immediately.
The announcement fulfills an election promise, and eliminates a source of friction between New Brunswick and Prince Edward Island.
P.E.I. Premier Pat Binns opposed the tolls because they added to the cost of transporting goods to and from the Island.
"It's outrageous for the downstream provinces like P.E.I. to pay tolls so that the New Brunswick government can make a profit," he said on Dec. 17.
He had threatened to take the New Brunswick government to court over the issue.
The tolls were opposed by many New Brunswickers as well. Premier Lord said Wednesday that reaching a deal to eliminate them required months of negotiation with the company building the road and its investors.
Under the deal the government itself will end up paying the tolls itself. It will count the number of cars using the highway and pay the company up to
Premier Blaine Higgs said Friday he hadn't reviewed the decision and it was too early to say if the province would appeal it to the Supreme Court of Canada. (Ed Hunter/CBC)
Progressive Conservatives led by Bernard Lord promised to do away with tolls on the new highway in the 1999 provincial election. (Radio-Canada)
Bernie's also worked on our wonderful ambulance service and on behalf of the cellphone giants, just to spread the love around to the rest of the country.