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Court of Appeal File Number: 142 -11- CA
(Court File Number: M/C/0642/09)
IN THE COURT OF APPEAL OF NEW BRUNSWICK
BETWEEN:
ANDRE MURRAY
INTENDED APPELLANT (Defendant)
-and-
ROYAL BANK OF CANADA & 501376 N.B.
Ltd., a body corporate,
INTENDED RESPONDENT (Plaintiffs)
Intended Appellants Submission
For Motion for Leave to Appeal
Filed by self represented
APPELLANT
ANDRE MURRAY
Intended Appellant
(The Defendant)
Self Represented
Andre Murray
31 Marshall Street,
Fredericton, New Brunswick,E3A 4J8
Telephone Number:
E-mail address:andremurraynow@
gmail.com
Intended Respondent
(The Plaintiffs)
George LeBlanc Solicitor of Record for
ROYAL BANK OF CANADA &
501376 N.B. Ltd., a body corporate
Name of solicitors firm: Cox & Palmer,Address for service: Blue Cross Centre,
Suite 502, 644 Rue Main Street,
Moncton NB E1C 1E2E-mail address: gleblanc@
coxandpalmer.comTelephone number: Main 506 856 9800Telephone number: Direct 506 382 4529
Fax 506 856 8150
Web coxandpalmer.com
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i
Intended Appellants Submission
For Motion for Leave to Appeal
Appellants Brief index
Index
Page
IINTENDED APPELLANTS SUBMISSION(a) a succinct outline of the facts the party intends to establish____________
(b) a concise statement of the issues to be dealt with by the court__________
(c) a concise statement of the principles of law on which the party relies
and citation of relevant statutory provisions and leading authorities________
(d) a concise statement of the relief sought by the party_______________
Schedule A
A list of authorities in the order referred to in the Submission_____________
Schedule B
The text of all relevant provisions of Statutes or Regulations _____________
1
14
15
131
133
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A.Facts
(a) a succinct outline of the facts the party intends to establish,1. October 19, 2011, Andr Murray (self litigant) received a telephone call at
my 31 Marshall Street, Fredericton residence from an unknown woman who
claimed to be an employee at Court of Queens Bench Moncton Client Services.
This subject woman further claimed to have a message from Mr Justice Zol R
Dionne therefore requiring that I Andr Murray: you must attendCourt of
Queens Bench Moncton Trial Division to hear the Oral Decision of Mr Justice
Zol R Dionne.
2. As stated above the strange and or surprising telephone call from
allegedly an employee at Court of Queens Bench Moncton Client Services
advising me that I Andr Murray must attend to hear the Oral Decision of Mr
Justice Zol R Dionne please note that I Andr Murray did of course enquire
from this unexpected caller from Court of Queens Bench Moncton Client
Services as to what exactly is the Oral Decision of Mr Justice Zol R Dionne
regarding. No answer was available from Court of Queens Bench Moncton
Client Services as to which of the five Motions previously heard before the
learned trial judge would be part of the Oral Decision of Mr Justice Zol R
Dionne October 21, 2011.
3. October 21, 2011, 2:00 pm, at the Court of Queens Bench Moncton Trial
division, Honorable Justice Zoel R. Dionne, gave his Oral Decision which was
and or is applicable to five Motions, moreover, a decision which was toencompass all five Motion of seven outstanding Motions before
Honorable Justice Zoel R. Dionne.
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4. As the Learned Trial Judge had ceased himself of the entire Matter
therefore all Motions filed resulting from the original year 2009 NOTICE OF
ACTION and STATEMENT OFCLAIM.
5. I Andr Murray did ATTEND the October 21, 2011 Oral Decision
furthermore did receive (same day) a copy of the written Decision of
Honorable Justice Zoel R. Dionne, Dated October 21, 2011, Court File
Number: M/C/0642/09 IN THE COURT OF QUEENS BENCH OF NEW
BRUNSWICK, TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON, byretrieving a copy prepared for me, from Moncton Client Services.
6. The Decision of Honorable Justice Zoel R. Dionne, Dated October 21,
2011, Court File Number: M/C/0642/09 was regarding 5 separate Motions
heard over various days, from March 23, 2011, to August 5, 2011, four being
filed by (for our purposes) the Intended Respondents and one being filled by the
Intended Appellant.
7. I Intended Appellant did as (Defendant in that matter) cause to be filed
two separate Motions, following the Honorable Court having heard two
Motions filed by the Plaintiffs August 2011, consequentially and immediately
following same subject Court Hearings which the Intended Appellant believed
were necessary to fairly conclude the matter regarding the first five subject
Motions. One of the Motions which I Intended Appellant did file was a Motion
for an injunction to caution the Court from coming to a premature decision
regarding the five subject Motions (the subject of this Appeal), until the
honorable Court hearing that matter could hear and consider the Intended
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Appellants Motion, regarding Motion to Adduce New Evidence and a Post
Hearing Brief, which was scheduled for August 25, 2011. I Intended Appellant
did and or had filed a second motion following the last Court Hearings of two
Motions in August 2011 therefore to strike inter alia vexatious and erroneous
affidavit evidence from the record; please note this Motion to Strike Evidence
was and still remains scheduled for February 23, 2012, because I Andr Murray
did and do verily believe, the subject affidavit evidence would be prejudicial to
my cause, further the subject vexatious and erroneous material was frivolous,
and an abuse of the process of Court. I Andr Murray did believe that if the
evidence was allowed to remain unchallenged, my cause would be prejudiced,which is now evidenced by the October 21, 2011 decision which I now seek to
Appeal.
8. The Intended Appellants Motion, regarding, the proposed Injunction, and
to adduce new evidence include a proposed filing of a Post Hearing Brief Dated
August 9, 2011, all of which was scheduled to be heard August 25, 2011, was
placed before Honorable Justice George S. Rideout, who immediately upon
entering the Court room declared that Honorable Justice Zoel R. Dionne was
seized of the matter, therefore intended to be heard that day, and subsequently
Honorable Mr. Justice George S. Rideout alluded that he could not hear the
matter. Honorable Justice George S. Rideout did declare as he was leaving the
Court room further that he would go directly to see Honorable Justice Zoel R.
Dionne in his office (ashedid believe him to be there) that Honorable Mr.
Justice George S. Rideout would bring this in discrepancy to the attention of
Honorable Justice Zoel R. Dionne, right away, so the matter may be properly
dealt with in the undisclosed future.
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9. The Intended Appellants Motion, regarding, the proposed Injunction,
adducing new evidence and filing a Post Hearing Brief Dated Tuesday August
9, 2011, was filed by the Intended Appellant, four days after the last scheduled
Friday August 5, 2011 date of the Hearings of the subject five Motion (the
subject of this Appeal).
10. The Intended Appellant did file, two Motions within 20 days of the
August 5, 2011 (last hearing Date of subject Motions which decisions of, are
now to be Appealed). 57 days did pass before Honorable Justice Zoel R.
Dionne did unexpectedly provide a Oral decision, without hearing the IntendedAppellants two Filed Motions.The Intended Appellant verily believes that this
violates the principles of Natural Justice, rules of procedural fairness and a
person's common law right to be heard.
11. The Intended Appellant verily believes, Natural Justice and procedural
fairness requires that administrators adhere to a fair decision-making procedure.
The learned trial judge erred in law in not recognizing the principal of law
expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other
side'). This Maxim, in law means: no person shall be condemned, punished or
have any property or legal right compromised by a court of law without having
heard that person. I Andr Murray very believe the Honorable Court should
have heard the Intended Appellants two scheduled Motions before rendering a
decision.
12. I Andr Murray very believe to be true that, the question whether an Court
Order or decision is interlocutory or final should be determined by looking at
the order or decision itself. The nature of the order or decision, as made, finally
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disposes of, or substantially decides the rights of the parties; consequentially it
ought to be treated as a final order or decision.
13. I Andr Murray very believe to be true that, because of the principle of
Res Judicata & Functus Officio the Court of original Jurisdiction can longer
hear anything further regarding the matter of the five motion, the result of
which is this Decision being now appealed, there fore the decision is final.
14. I Andr Murray very believe to be true that this Court, upon hearing the
motion, will doubt the correctness of the order or decision in question and finderror in the jurisprudence thereof.
15. I Andr Murray very believe to be true that this Court, upon hearing the
motion will consider that the Appeal (of these subject matters) involves matters
of such importance that leave to appeal should be granted. Considering the
importance, the impact of this decision may have, as a precedent upon the rights
of Tenants pursuant to the Residential Tenancy Act when compared to
Mortgagees, in New Brunswick from here forth; unquestionably the Intended
Appellant believes that Leave to Appeal may/should be granted.
16. I Andr Murray very believe to be true that, This Court in exercising the
discretion conferred by Rule 62.26 of theRules of Court, a judge must decide
whether it is just and equitable to grant the provisional remedy while
proceedings are pending. Courts have traditionally resolved that question by
applying the well-known three-prong test of(1) Does the appeal pose a serious
challenge to the decision in the court below? (2) Will the applicant suffer
irreparable harm without a stay? (3) Does the balance of convenience favour the
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order sought? The first branch of the test is referred to in Rule 62.26, while the
second and third branches have been formulated by the courts to provide a
principled framework for the exercise of discretion contemplated by the Rule.
17. I Andr Murray very believe to be true that (1) This Appeal does pose a
serious challenge to the decision in the court below.
18. I Andr Murray very believe to be true that (2) The applicant will suffer
irreparable harm without a stay.
19. I Andr Murray very believe to be true that (3) the balance of
convenience favours granting the order sought.
20. I Andr Murray very believe to be true thatNatural Justice and
procedural fairness requires administrators adhere to a fair decision-making
procedure. The learned trial judge erred in law in not recognizing the principal
of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the
other side'). This Maxim, in law means: no person shall be condemned,
punished or have any property or legal right compromised by a court of law
without having heard that person.
21. I Andr Murray very believe to be true thatthe Court rendered a decision
on five Motions without hearing the (other side) Appellant, additionally on two
further Motions, which directly addressed and were relative to and could have
changed the outcome of the five Motions decided upon by the Court, October
21, 2011.
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22. I Andr Murray very believe to be true thatthe Learned Trial Judge failed
to understand the facts and arguments as presented by the Appellant and instead
pursued only the arguments and assertions as presented by the Respondent, this
predisposition of the Learned Trial Judge toward a particular result, is such that
a reasonable apprehension of bias is raised. The Appellant contends that a
reasonable apprehension of bias arose by the fact that the learned Trial Judge
only accepted argument and evidence which favored the Defendants position,
further the learned Trial Judge made obviously erroneous statements within the
decision which reasonably must be based on incorrect information, contrary to
the facts of the case.
23. I Andr Murray very believe to be true thatthe trial judge made a number
of material errors in law while arriving at Decisions and in respect the Courts
exercise of discretion regarding costs. The learned Trial Judge erred in law, in
irregularly applying the Courts Discretion. The Appellant contends, that The
Learned Trial judge did display abuse of discretion, which is an adjudicator's
failure to exercise sound, reasonable, legal decision-making. The Learned Trial
Judge instead rendered a decision which is unsupported by the evidence and
clearly based on erroneous findings of material fact.
24. I Andr Murray very believe to be true thatthe factual findings made by
the Learned Trial Judge should not be accepted, because the Appellant can
show that they are unreasonable, based on a material misapprehension of the
evidence, and or tainted by a failure to consider material, relevant evidence.
The effect is significantly unjustified prejudice and or injustice to the
Appellant.
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25. I Andr Murray very believe to be true thatthe Learned Trial Judge,
demonstrated subjectively that he did not appreciate the argument advanced by
the Appellant, consequently failed or refused to understand the legal principles
relied on, in support of the Appellants argument, further, the Learned Trial
Judge failed to review and understand the relevant evidence.
26. I Andr Murray very believe to be true thatthe Leaned Trail Judge did
demonstrate Omissions in reason for judgment, which amount to material error
because they give rise to the reasoned belief that the trial judge must have
forgotten, ignored or misconstrued the evidence in a way that affects the Courtsconclusions, such as in this case.
27. I Andr Murray very believe to be true thatthe award of costs, is
considered to be a matter within the discretion of the Trial Judge, the Appellant
will demonstrate that a grossly unfair allocation amounts to an error of
principle, further, that the exercise of the Trial Judges discretion in this matter
was affected by error in principle and or by misapprehension of the facts.
Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The law never
works an injury, or does a wrong. The Appellant claims that the exercise of
discretion of the Learned Trial Judge in regards to Cost award to the Plaintiff is
manifestly without merit, therefore excessively disproportionate, therefore,
unbalanced substantial injustice and serious injustice would result if the Cost
award is allowed to stand.Manifest Abuse of Discretion is when the Courts
decision is unsupported by the evidence and clearly on a erroneous finding of a
material fact, the Appellant claims in this matter that the Learned Trail Judge
has in this case demonstrated Manifest Abuse of Discretion, in the
inappropriately excessive cost awarded the Plaintiff, moreover the unjust
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awarding of undeserving cost, in the amount awarded in favor of the
Respondent in these circumstances; further, Appellant contends, it would be a
disservice to the administration of justice to allow this Award of Costs to stand.
28. I INTENDED APPELLANT Andr Murray make this my Claim of Right
that as a Residential Leasehold Tenant at 31 Marshall Street, since year 2005,
this is to say and affirm that I am in good standings in pursuance with the
Residential Tenancy Act of New Brunswick; incidentally, the beginning of each
month and no later than the first day of each month, including therefore this
first day of October, 2011 I Andr Murray Residential Leasehold Tenant Ihave, according to my lease agreement, furthermore, I have paid directly into
my landlords bank account at the R.B.C. Account Number 012145014220
29. Moreover, as recently as March 2011 I have caused written
correspondence with the Solicitor for my Landlord, Landlord Betty Rose
Danielski and also communicated directly by written correspondence with my
Landlord Betty Rose Danielski, both of which respectively speaking, have not
rejected my claims found therewithin subject written correspondence, that
which included my CLAIM inter alia that Landlord Betty Rose Danielski is
indeed my Landlord by the simple act, of her acceptance of this subject CLAIM
and Landlord Betty Rose Danielskis non denial thereof, moreover Landlord
Betty Rose Danielski continues to accept my monthly rental payments,
consistently occurring the first of each month and which furthermore, moreover
are a continuance of a long unbroken line of payments since the year 2005,
consequently, Landlord Betty Rose Danielski whom I Claim is the Landlord
who has failed to deny my written CLAIM to both her and her Solicitor,
continues to accept my monthly rental payments furthermore, Landlord Betty
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Rose Danielski accepted last months rent October 2011 in the capacity of
Landlord, I find that the principle of issue estopple applies as Landlord Betty
Rose Danielski has not denied my claims further as is evidenced by the
commerce between Residential Tenant Andr Murray consequently I verily
believe that Landlord Betty Rose Danielski is my legal Landlord.
30. As such is the case I am a Resident protected by the Residential Tenancy
Act of New Brunswick which is NOTWITHSTANDING all other acts.
31. This is further to state that I have a right to remain in occupancy at and orof 31 Marshall Street, Fredericton as a Residential Tenant in good standing,
moreover any interference with my tenancy, by any other authority other than
the Chief Rentalsmen of New Brunswick will be considered a Breach of the
Covenant of quiet enjoyment, reasonably by tortious actions, for that reason
such actions would be interfering with the use and enjoyment of the leased
premises, which is substantial and of a grave and of a permanent nature, such
that it constitutes a serious interference with the ability of the Tenant Andr
Murray to exercise right of possession of his Residential Leasehold Tenancy at
31 Marshall Street Fredericton, New Brunswick.
32. Furthermore, I Andr Murray as a responsible Tenant maintain a full
coverage policy Insurance Plan with the insurance provider called: State Farm
Fire and Casualty Company for that purpose is effectively providing coverage
against loss of the entire duplex 29 and 31 Marshal Street Fredericton, New
Brunswick for any reasons.
Attention
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33. January 14, 2011 the Honorable Justice Zol R. Dionne did sign a case
management Order therefore prohibiting any further filing of evidence to the
subject motions to be heard, against the objections of Andr Murray the
Defendant in that matter. Please see a copy of this Order which is attached to
the Affidavit of Andr Murray Dated October 28, 2011 as EXHIBIT A.
34. October 24, 2011 I INTENDED APPELLANT Andr Murray did receive
a letter from Nancy A. Williamson, Moncton Region Client Services Dated:
October 13, 2011, which indicated and therefore confirmed that a new Date set
as February 23, 2011 at 9:30 AM for a Hearing of the Motion filled by AndrMurray on August 9, 2011. A copy of that letter and the envelop which it
arrived in having a tracking number RW 612 716 958 CA is attached to the
Affidavit of Andr Murray Dated October 28, 2011 as EXHIBIT B.
35. August 9, 2011, I Andr Murray did file a NOTICE OF MOTION
(FORM 37A), and AFFIDAVIT in support thereof, which was COURT OF
QUEENS BENCH TRIAL DIVISION MONCTON N.B.
FILED/REGISTERED Stamped as August 9, 2011. A copy of this Motion is
attached to the Affidavit of Andr Murray Dated October 28, 2011 as
EXHIBIT C.
36. August 25, 2011, I Andr Murray did file a NOTICE OF MOTION
(FORM 37A), and AFFIDAVIT in support which was COURT OF QUEENS
BENCH TRIAL DIVISION MONCTON N.B. FILED/REGISTERED Stamped
as August 25, 2011. A copy of this Motion is attached to the Affidavit of Andr
Murray Dated October 28, 2011 as EXHIBIT D.
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37. January 25, 2010 the Honorable Justice Dionne did sign a Order which
inter alia awarded $500 in cost to Defendant Andr Murray. A copy of this
Order is attached to the Affidavit of Andr Murray Dated October 28, 2011 as
EXHIBIT E.
38. March 28, 2005 I Andr Murray did sign a four year FORM 6
STANDARD FORM OF LEASE Dated March 28, 2005, a Residential Tenancy
Lease with Landlord Betty Rose Danielski for the 29 and 31 Marshall Street
Property, Fredericton N.B. The March 28, 2005 Residential Lease is attached to
the Affidavit of Andr Murray Dated October 28, 2011 as EXHIBIT F.
39. September 1, 2005 I Andr Murray did sign a year to year FORM 6
STANDARD FORM OF LEASE Dated September 1, 2005, a Residential
Tenancy Lease with Landlord Betty Rose Danielski for the 29 and 31 Marshall
Street Property, Fredericton N.B. The Sept 1, 2005 Residential Lease is
attached to the Affidavit of Andr Murray Dated October 28, 2011 as
EXHIBIT G.
40. Plaintiff agrees that there exists a PROPERTY ACT of NEW
BRUNSWICK which the RBC and 501376 N.B. Ltd., body corporate company,
Respondents in the matter have argued before the COURT Of QUEENS
BENCH, Moncton TRIAL DIVISION therefore alleges inter alia that they have
a Financial Investment Instrument called a MORTAGEE DEED although
when APPLICANT (in this matter) requested by DEMAND FOR
PARTICULARS the alleged MORTAGEE DEED and or proof of any
MORTAGE being currently in existence neither Royal Bank of Canada
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501376 N.B. Ltd., body corporate company, are not able to produce said
alleged MORTAGEE DEED.
41. I Andr Murray verily believe Financial Investment Instrument called a
MORTAGEE DEED it does not exist and or have not witnessed the Honorable
Court hearing this matter being provided with proof of the existence of the
subject MORTAGEE DEED and or any other significant proof of the existence
of Financial Investment Instrument which may be therefore negotiable in
commerce. Nevertheless in the absence of said proof the Learned Trial Judge
hearing the matter ruled in favor of the Plaintiffs in that matter Respondentshere.
42. I Andr Murray verily believe it behooves any residential Leasehold
Tenant in New Brunswick to protect and therefore evoke the Residential
Tenancy Act of New Brunswick especially in matters such as these, when,
financial institutions are negotiating their financial investment instruments
relative to residential properties, therefore moreover these subject institutions
must be reminded that the Legislative Assembly of New Brunswick anticipated
such a scenario and for that reason included within the Residential Tenancy Act
of New Brunswick is the condition NOTWITHSTANDING.
43. I Andr Murray verily believe the quality: NOTWITHSTANDING with
respect to all other acts was drafted into the Residential Tenancy Act of New
Brunswick, furthermore, the erroneous position of the Learned Trial Judge in
his misapprehension of Residential Tenancy Law in New Brunswick and the
shelter and or protection provided to all residential Tenants of New Brunswick
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in instances such as all the matters heard before the learned trial judge
regarding this matter.
44. I Andr Murray verily believe the Learned Trial Judge did error in law,
alternatively moreover, in finding contrary to Residential Tenancy Rights
established in New Brunswick verbally expressed a subjective preference to
rule in favour of financial institutions.
45. At this time the Intended Appellant is a Tenant in good standing,
payments of the agreed upon rental fees are made to the Landlords Bankaccount the first of each month including this one, November 2011, regardless
of the impugned termination of tenancy, which the Learned Trial Judge did
erroneously validate, the Landlord Betty Rose Danielski has and is still
accepting Residential Tenancy Rental payments to here designated account.
The Acceptance by a Landlord of Rental payments is acceptance of a
continuation of the previous lease, and further alternatively, in the very least
establishes a new and binding tenancy agreement. The Intended Appellant is
does have a Residential Tenancy Lease which is protected by the Residential
Tenancy Act of New Brunswick.
B.(b) a concise statement of the issues to be dealt with by the court,
1. Is this decision a final order?
2. Is there is a conflicting decision by another judge or court upona question involved in the proposed appeal and, in the opinion of thejudge hearing the motion, it is desirable that leave to appeal begranted?
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3. Does the judge hearing the motion doubts the correctness ofthe order or decision in question?
4. Does the judge hearing the motion consider that the appealinvolves matters of such importance that leave to appeal should begranted?
5. Should the Court grant leave to Appeal?
6. Should the Court grant a stay of proceedings?
7. Should the Court give special instruction regarding theAppellants Submission?
8. Should the Court give instruction on filing of the AppealBooks?
9. Should the Court recognize the Tenancy of Intended AppellantAndr Murray?
C.(c) a concise statement of the principles of law on which the party relies and
citation of relevant statutory provisions and leading authorities, and
1.FINAL ORDER OR DECISION
46. The nature of the decision, Dated October 21, 2011, by the Honorable
Zol R. Dionne, finally disposes of, or substantially decides the rights of the
parties, and it ought to be treated as a final order or decision.
47. The intended consequence of the Action filed by the Intended
Respondents was to gain legal vacant possession of the 29 and 31 Marshall
Street Property, Fredericton New Brunswick, so as to clear the Marshall Street
property title of the Intended Appellants Mechanics Lien Claim, through the
Power of Sale procedure, (pursuant to the New Brunswick Property Act). The
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decision being Appealed, dated October 21, 2011 accomplishes this intended
goal.
48. The Intended Respondents wanted the Tenancy of the Intended Appellant
terminated and the 29 and 31 Marshall Street, Fredericton, New Brunswick
Property vacated, so they could achieve legal vacant possession, and allegedly
act to secure payment of a Mortgage, which allegedly fell into default. The
Intended Appellant has been fighting to enforce the Rights of Tenants and the
security of tenure, which should be a obvious right to all Tenants of New
Brunswick. The Decision being appealed, Dated October 21, 2011, as madefinally disposes of, or substantially decides the rights of the parties, being,
namely the Tenancy Rights of the Intended Appellant and the alleged
Mortgagee rights of the Intended Respondent.
49. In essence the matter is resolved, (through the impugned Order Dated
October 21, 2011), therefore, finally disposes of, or substantially decides the
rights of the parties.
50. In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.)
Honorable Justice J. ERNEST DRAPEAU, J.A. stated the following regarding
the approach to the determination of the threshold question of whether an order
or decision is interlocutory or final:
Decision
[7] A preliminary question arises: IsJustice McLellans decision final or interlocutory? If it is final, leave toappeal is not required.
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[8] In this Province, the leading authorityon point is Bourque v. New Brunswick, Province of, Leger and
Leger (1982), 41 N.B.R. (2d) 129 (C.A.). In that case, Stratton J.A.,as he then was, adopted the following approach to the determinationof the threshold question at issue here, at pages 133-34:
13 In my opinion, the question whether an orderor decision is interlocutory or final should bedetermined by looking at the order or decisionitself, and its character is not affected by thenature of the order or decision which could havebeen made had a different result been reached. Ifthe nature of the order or decision as made finally
disposes of, or substantially decides the rights ofthe parties, it ought to be treated as a final order ordecision. If it does not, and the merits of the caseremain to be determined, it is an interlocutoryorder or decision.
[9] The analytical framework articulatedin Bourque has withstood the test of time. See Lawson et al. v. Poirier etal. 1994 CanLII 6525 (NB C.A.), (1994), 152 N.B.R. (2d) 394 (C.A.), perRyan J.A. at paras. 9_13; Western Surety Co. v. National Bank of Canada2001 NBCA 15 (CanLII), (2001), 237 N.B.R. (2d) 346 (C.A.), at para.27; Sinclaire v. Nicols and Gregg 1999 CanLII 4070 (NB C.A.), (1999),231 N.B.R. (2d) 60 (C.A); Caissie v. Senechal Estate et al. 2000 CanLII8754 (NB C.A.), (2000), 231 N.B.R. (2d) 198 (C.A.), per Turnbull J.A.;and Dougs Recreation Centre Ltd. et al. v. Polaris Industries Ltd. 2001CanLII 19446 (NB C.A.), (2001), 237 N.B.R. (2d) 190 (C.A.), perRobertson J.A. The question whether Mr. MacArthur must obtain leaveto appeal is to be determined within that analytical framework.
51. The nature of the order or decision, as made, finally disposes of, or
substantially decides the rights of the parties; consequentially it ought to be
treated as a final order or decision. The Royal Bank of Canada would in effect
have received the relief they where seeking as expressed in the Original Notice
of Action and Statement of Claim, vacant possession of the 29 and 31 Marshal
street property, so they could disposed of the property. Once the Defendant is
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removed from the property, and vacant possession is achieved by the Plaintiffs,
there would be no longer a reason to continue on with the litigation claims,
since their stated desired remedy was achieved, (those specific claims which
the Plaintiffs in that matter claimed were the basis for filing their lawsuit).
52. Black's Law Dictionary (8th ed. 2004), at Page 1982 provides the
following definition of Functus Officio as follows:
FUNCTUS OFFICIOfunctus officio [Latin having performed his or her office] (Of anofficer or official body) without further authority or legal competence
because the duties and functions of the original commission have beenfully accomplished. The term is sometimes abbreviated to functus .
53. The Court of Queens Bench Trial division would be without jurisdiction,
further authority or legal competence to rule between the parties regarding
matters of on the Residential Tenancy Act of New Brunswick, the Property Act
of New Brunswick, Termination of Tenancy or the matter of Rescinding Orders
made without Notice and inter alia the other relief which was sought betweenthe parties, because the duties and functions of the original commission have
been fully accomplished, therefore the decisions as rendered would be final.
The Court of Queens Bench Trial division could not revisit these matters as
decided upon.
54. Black's Law Dictionary (8th ed. 2004), at Page 4088 defines Res Judicata
as follows:
RES JUDICATA
res judicata [Latin a thing adjudicated]
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1. An issue that has been definitively settled by judicial decision.[Cases: Judgment 540, 584, 585. C.J.S. Judgments 697700, 702
703, 749, 752.]2. An affirmative defense barring the same parties from litigating asecond lawsuit on the same claim, or any other claim arising from thesame transaction or series of transactions and that could have been but was not raised in the first suit.
The three essential elements are (1) an earlier decision on the issue, (2) afinal judgment on the merits, and (3) the involvement of the sameparties, or parties in privity with the original parties. Restatement(Second) of Judgments 17, 24 (1982). Also termed res adjudicata;
claim preclusion; doctrine of res judicata. Cf. COLLATERALESTOPPEL. [Cases: Judgment 540, 584, 948(1). C.J.S. Judgments 697700, 702703, 752, 930931, 933.]
Res judicata has been used in this section as a general term referringto all of the ways in which one judgment will have a binding effect onanother. That usage is and doubtless will continue to be common, but itlumps under a single name two quite different effects of judgments. Thefirst is the effect of foreclosing any litigation of matters that never havebeen litigated, because of the determination that they should have beenadvanced in an earlier suit. The second is the effect of foreclosingrelitigation of matters that have once been litigated and decided. Thefirst of these, preclusion of matters that were never litigated, has goneunder the name, true res judicata, or the names, merger and bar.The second doctrine, preclusion of matters that have once been decided,has usually been called collateral estoppel. Professor Allan Vestal haslong argued for the use of the names claim preclusion and issuepreclusion for these two doctrines [Vestal, Rationale of Preclusion, 9St. Louis U. L.J. 29 (1964)], and this usage is increasingly employed bythe courts as it is by Restatement Second of Judgments. Charles AlanWright, The Law of Federal Courts 100A, at 72223 (5th ed. 1994).
55. The three listed essential elements would be present, for the Plaintiffs tobe reasonably able to claim Res Judicata, which are:
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(1) an earlier decision on the issue, which would be in this instance, the
decision Dated October 21, 2011, by the Honorable Zol R. Dionne regarding
the five motions considered, which the Defendant seeks leave to appeal
presently;
(2) a final judgment on the merits, the decision as it stands is final on the
matters, unless overturned upon Appeal ( the only Court with the Jurisdiction to
do so) after consideration by the Honourable Court of Appeal, furthermore,
Honorable Zol R. Dionne, could not rule again on these same matters between
the parties;
(3) the involvement of the same parties, or parties in privity with theoriginal parties such as in this case of the ROYAL BANK OF CANADA &
501376 N.B. Ltd., a body corporate, and ANDR MURRAY.
56. The Defendant would be barred by res judicata and functus officio,
therefore not be able to have the Court of Queens Bench Trial Division hear
anything further regarding the Rights of Residential Tenants in New
Brunswick, as they applied to the Intended Appellant, (Defendant in that
matter) Andr Murray and the 29 and 31 Marshall Street Property, Fredericton
New Brunswick, the impugned claims by the Royal Bank of Canada as
Mortgagee, and 501376 N.B. Ltd., a body corporate, as tentative purchaser of a
Mortgagee Deed, regarding the incidents as decided upon October 21, 2011.
The five Motions were essentially, interalia, regarding:
a. Plaintiffs Motion: The numbered company 501376 N.B. Ltd., a
body corporate withdrawing from the litigation;
b. Plaintiffs Motion: Striking the (Intended Appellant in this
matter) Defendants Affidavit material from the record regarding
claims of Fraud upon the Court, inter alia;
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c. Defendants Motion: Rescinding Orders made without Notice,
made on October 20, 2009 and strike portions of the Plaintiffs
statement of claim and summarily dismiss the Plaintiffs claims
for lack of jurisdiction, inter alia;
d. Plaintiffs Motion: Ruling on the Property Act, RSNB 1973, c P-
19 verses the Residential Tenancies Act, SNB 1975, c R-10.2
and lack of jurisdiction of the Court, inter alia;
e. Plaintiffs Motion: Ruling on impugned Notice of Termination
of Tenancy and lack of jurisdiction of the Court, inter alia.
57. This same principles or rules of res judicata and functus officio would bar
the Court of Queens Bench Trial Division from hearing the Intended
Appellants two further motions scheduled for February 23, 2012, because of
estopple, the Court could not possibly grant the relief requested, which is
intended to directly affect the courts conclusions, regarding the 5 motions (at
the time undecided upon) but now already decided upon. The Defendant was
seeking a Stay of Proceedings until the Court considered accepting New
Evidence and a Post Hearing brief further, the Defendant was seeking to strike
prejudicial affidavit material from the record before the Court rendered a
decision on the five Motions (now being Appealed). This was necessary
evidently because without the Court Striking the requested frivolous and
vexatious Affidavit material from the record, considering a post hearing brief
and considering the new Evidence, the Learned Trial Judge did in fact render a
decision against the Defendant in that matter on all remedies sought.
58. Should this Honorable Appellate Court, in the process of rendering a
decision, in the unlikely event of determining that the lower Court decision of
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Honorable Zol R. Dionne is interlocutory; the Intended Appellant Andr
Murray shall seek to provide further legal reason to grant leave to appeal as
follows.
Leave to Appeal required
59. In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.) Supra,
Honorable Justice J. ERNEST DRAPEAU, J.A. offered the following, when
considering whether to grant leave to appeal from a interlocutory Order or
Decision:
[11] Rule 62.03(4) provides that leave toappeal shall not be granted unless:
(a) there is a conflicting decision by anotherjudge or court upon a question involved inthe proposed appeal and, in the opinion ofthe judge hearing the motion, it is desirablethat leave to appeal be granted,
(b) the judge hearing the motion doubts thecorrectness of the order or decision inquestion, or
(c) the judge hearing the motion considers that theappeal involves matters of such importancethat leave to appeal should be granted.
[14] Neither this Court nor the SupremeCourt of Canada has considered the questions of law raised byMr. MacArthur. While I am not persuaded that Justice McLellansdecision is wrong, I do entertain a doubt of the kind contemplatedby Rule 62.03(4)(b). That being so, does leave to appealautomatically follow?
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[15] InBreen v. MacIntosh, [2001] N.B.J.No. 226 (C.A.), at para. 6, I expressed the view that satisfaction of
one or more of the conditions found in Rule 62.03(4) did not, byitself, compel the issuance of an order granting leave to appeal. Iwent on to add that Rule 62.03(4) vests in the judge hearing themotion a residual discretion to deny leave even where one ormore of the preconditions have been satisfied. I remain firmlycommitted to that view.
[16] The meaning and effect of Rule62.03(4) must be ascertained on the basis of its wording and theRules of Court as a whole. Needless to say, the Rule should beinterpreted in a commonsensical manner and with a view to
promoting the most efficient use of judicial resources. See Smithv. Agnew 2001 NBCA 83 (CanLII), (2001), 240 N.B.R. (2d) 63(C.A.), at para. 35.
[17] While it is true that clauses (a) and (c)feature an explicit preservation of judicial discretion and clause(b) does not, the wording of the opening phrase in Rule 62.03(4)suggests that all three clauses are mere conditions precedent to thejudges jurisdiction to grant leave to appeal. The Rules openingwords are: Leave to appeal shall not be granted unless..., notLeave to appeal shall be granted....
[18] Clauses (a) and (c) of Rule 57.02(4) ofthe Newfoundland & Labrador Rules of Procedure are identical,for all intents and purposes, to clauses (a) and (c) of our Rule.Rule 57.02(4) of the Newfoundland & Labrador Rules ofProcedure reads as follows:
(4) Leave to appeal an interlocutory order may be grantedwhere
(a) there is a conflicting decision byanother judge or court upon aquestion involved in the proposedappeal and, in the opinion of theCourt, it is desirable that leave toappeal be granted,
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(b) the Court doubts the correctness of
the order in question,(c) the Court considers that the appeal
involves matters of such importancethat leave to appeal should begranted, or
(d) the Court considers that the nature ofthe issue is such that any appeal onthat issue following final judgmentwould be of no practical effect.
[19] It will be seen that although clauses (a)and (c) of the Newfoundland & Labrador Rule feature, like thecorresponding clauses in our Rule, a preservation ofjudicial discretion, the opening phrase provides that [l]eave toappeal an interlocutory order may be granted where... [Emphasisadded.] Obviously, the drafters of the Newfoundland & LabradorRule did not see any incompatibility between the wording ofclauses (a) and (c) and a general judicial discretion to deny leave. InBusiness Development Bank of Canada v. White Ottenheimer &Baker2002 NFCA 10 (CanLII), (2002), 209 Nfld. & P.E.I.R. 167(C.A.), Cameron J.A., who delivered the Courts reasons forjudgment, observed, at para. 2, that even if one or more of thefactors are present, the Court still has the discretion to refuse to hearan appeal prior to the completion of the trial. See, as well, White v.True North Springs Ltd., 2002 NLCA 65 (CanLII), 2002 NLCA65; [2002] N.J. No. 282 (C.A.), online: QL (NJ).
[20] Rule 62.03(4) cannot be interpreted inisolation. As noted, its meaning and effect must be ascertainedhaving regard to the Rules of Court as a whole. Rules 1.03(2) and62.21(6) play an important role in the interpretative exerciserequired here. Rule 1.03(2) directs courts to liberally construe therules to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits. Rule 62.21(6)provides that [a]n interlocutory order or decision from which there
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has been no appeal shall not operate to prevent the Court of Appealfrom rendering any decision or making any order.
[21] Interlocutory orders and decisions varygreatly in terms of their relative importance within the litigationprocess and todays contested interlocutory order or decision maywell be entirely moot tomorrow. One can easily imagine a situationwhere the judge hearing the motion might doubt the correctness ofthe impugned interlocutory order or decision but conclude thatgranting leave to appeal would not be conducive to the just, leastexpensive and most expeditious determination of the proceedingson its merits. Indeed, circumstances may arise where granting leaveto appeal because of some doubt as to the correctness of the
interlocutory order or decision might well work against the bestinterests of the administration of justice.
[22] In my view, Rule 62.03(4) does notobligate the judge hearing the motion to grant leave just becauseone or more of the conditions contained in clauses (a), (b) and (c)have been met. The judge retains a residual discretion to deny leavewhere such an outcome would be in the best interests of justice.Any other interpretation would fail to give effect to the wording ofthe opening phrase in Rule 62.03(4) and the significant safeguardprovided by Rule 62.21(6). Moreover, it would be unfaithful to
Rule 1.03(2) and, insofar as clause (b) is concerned, incompatiblewith common sense. I would add that if the drafters of Rule62.03(4) had intended to strip the judge of any residual discretion inthe exercise of his or her jurisdiction under Rule 62.03(4), theycould and likely would have employed clear wording to that end.
[23] Factors such as the relative importance ofthe interlocutory order or decision in the litigation process and therepercussions of granting leave come into play in the exercise ofthat residual discretion. As Cameron J.A. noted in BusinessDevelopment Bank of Canada v. White Ottenheimer & Baker, atpara. 2, the matter always involves the weighing of interference,by the appeal process, with the timely administration of justiceagainst the interest of the appellant in having the matter resolvedimmediately.
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[24] Justice McLellans decision appears to bequite significant in terms of its likely influence on the conduct
of the action in the case at hand. As well, the action is not enteredfor trial; in fact, the discovery process is not completed. Finally,there is no evidence that an order granting leave to appeal mightcause prejudice of a serious nature to any party. The cumulativeeffect of these considerations leads me to conclude that leaveshould be granted pursuant to Rule 62.03(4)(b).
Disposition
[25] The motion for leave to appeal isallowed, with costs of $750 payable by the plaintiff, S. Bransfield
Limited, to the defendant, Gordon MacArthur.60. May it please this Honorable Court Intended Appellant will now attempt
to address each of the criteria, required, that Leave to Appeal to be granted, as
follows:
2.A) Leave to appeal shall be granted as follows:
Rule 62.03(4) (a) there is a conflicting decision by another
judge or court upon a question involved in the proposedappeal and, in the opinion of the judge hearing themotion, it is desirable that leave to appeal be granted,
61. As far as the Intended Appellant knows there is no other conflicting
decision of a Court in New Brunswick, this decision would be the Provincial
Legal Precedent, but there are decision of the Courts of other provinces which
do conflict with this decision entirely, especially, as an example, in the case of
Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII), where
Honorable Justice SCHWARTZ J. rules exactly opposite to the Learned Trial
Judges Ruling (which the Intended Appellant seeks Leave to Appeal), in a
almost identical situation, namely with The Royal Bank of Canada as the
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Mortgagee, attempting to vacate lawful Tenants of a Mortgagor in default but
in that case the Tenants rights were justly upheld by that Court.
62. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII),
Justice SCHWARTZ J. provided a decision as follows:
VII Decision
[37] This court is satisfied that the purpose of the amendment andthe intention of the Manitoba legislature were to bring evictions oftenants by mortgagees within the framework of and subject to the
provisions of theR.T.A. That intention has, in my view, been expressedwith the irresistible clearness described by Philp J.A. quotingLHeureux-Dub at paragraph 20 as follows:
20 InR. v. T. (V.),1992 CanLII 88 (SCC), [1992] 1 S.C.R.749 at 764, L'Heureux-Dub J. observed:
... while it is open to Parliament ..., subject to over-archingconstitutional norms, ... to change the law in whatever way it seesfit, the legislation in which it chooses to make these alterationsknown must be drafted in such a way that its intention is in no way
in doubt.
The intention of the Legislature to alter the common law rightsof the mortgagee has not been expressed "with irresistibleclearness," if at all, in the Act. See: Goodyear Tire & RubberCo. of Canada Ltd. et al. v. T.Eaton Co. Ltd. et al.,1956 CanLII2 (SCC), [1956] S.C.R. 610 at 614; and R. Sullivan,Driedgeronthe Construction of Statutes, 3rd ed. (Toronto: Butterworths,1994) at 368.
[38] I note that the Director argues that the current rule of statutoryinterpretation does not require irresistible clearness but rather thewords of the statute are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the
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Act, the object of the Act, and the intention of Parliament. That is thelanguage used by Iacobucci J. inRizzo and Rizzo Shoes Ltd. (Re),1998
CanLII 837 (SCC), [1998] 1 S.C.R. 27 where he delivered the judgmentof an unanimous supreme court.
[39] Further the Director submits that the language of section 6 ofThe Interpretation Act of Manitoba,C.C.S.M., c. I80requires the sameconclusion.
Rule of liberal interpretation
6 Every Act and regulation must be interpreted as beingremedial and must be given the fair, large and liberalinterpretation that best ensures the attainment of its objects.
[40] I recognize that I am bound to apply as a test the latestexpression of the Supreme Court, namely the language of Iacobucci J. inRizzo (above).
[41] Having reviewed and considered its entire context, andapplying the words of theR.T.A.,and in particular the amendeddefinition of landlord, in their grammatical and ordinary sense,harmoniously, with the scheme of thatAct, its object and the intentionof the Manitoba legislature, this Court must refuse the order ofpossession sought. The Mortgagee is bound to obtain possession inaccordance with theR.T.A.
[42] Argument was presented by the Mortgagee on the practicaldifficulties of requiring a mortgagee to comply with theR.T.A. Thosearguments were countered by the Director and may be found at pages 18et seq. of his brief.
[43] I do not intend to comment on those arguments in thesereasons. They are policy issues properly brought before an appropriatelegislative committee when amendments to theActare considered.
IX Final Result
[44] The application for an order of possession against the Tenantsis therefore refused. The application for an order of possession against
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the Owners is granted. The Mortgagee is entitled to its costs against theOwners.
63. The Intended Appellant does believe that this Court, upon hearing the
motion, will believe, that it is desirable that leave to appeal be granted.
3.B) Leave to appeal shall be granted as follows:
Rule 62.03(4) (b) the judge hearing the motion doubts thecorrectness of the order or decision in question.
64. The intended Appellant posed the question to the Learned Trial JudgeDoes the Court have Jurisdiction to rule on matters concerning the Residential
Tenancies Act S.N.B. 1975, c. R-10.2 ?. The Learned Trial Judge did not
answer this question or address it in any part of the decision Dated October 21,
2011.
65. The following is the appropriate Maxim in the present circumstance.
Maxim
Rerum ordo confunditur, si unicuique jurisdictio non servetur.
The order of things is confounded if every one preserves not his
jurisdiction.
66. The relevant New Brunswick Rules of Court, brought to the trial Judges
attention were Rule 23.01(2)(a), which is reproduced as follows:
(2) A defendant may, at any time before the action isset down for trial, apply to the court to have the actionstayed or dismissed on the ground that
(a) the court does not have jurisdiction to try the action,
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67. Further the Intended Appellant Andr Murray was seeking an order
Under Rule 22.01 (3) of the Rules of Court, that, the Court may grant
summary judgment against the Plaintiff on the ground that there is no merit to
the action, or to one or more claims therein, or to part of any such claim, an
order for summary judgment against the Plaintiffs striking out the Plaintiffs
Statement of Claim or part of Plaintiff s Statement of Claim, namely
paragraph 8 and 9 of the Plaintiff s Statement of Claim for lack of
Jurisdiction.
68. Intended Appellant Andr Murray did seek an order Under Rule23.01(2)(a) of the Rules of Court, to dismiss the Plaintiff s Action, for the
Honorable Courts lack of Jurisdiction, to rule on matters concerning the
Residential Tenancies Act S.N.B. 1975, c. R-10.2. in any capacity not
specifically granted, by the Act. That Rule of Court, Rule 23.01(2)(a) states
(2) A defendant may, at any time before the action is set down for trial, apply
to the court to have the action stayed or dismissed on the ground that (a) the
court does not have jurisdiction to try the action, .
69. Intended Appellant Andr Murray sought an order, pursuant to Rule 27.09
(c) is an abuse of the process of the court,, striking out paragraph 8 and 9 of the
Plaintiff s Statement of Claim on the grounds that it indeed was a practice of
abuse of the process of Court in the fact that the Plaintiffs abused the process as
they where motivated to circumvent the jurisdiction of the Rentalsmen, and the
authority granted the Rentalsmen pursuant to New Brunswick Residential
Tenancy Act.
70. Paragraph 8 and 9 of the Plaintiff s Statement of Claim, Court Date File
Stamped September 18, 2009, are reproduced below:
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8. Pursuant to the Bidding Papers and Terms of Sale, the Property
was due to close within 20 days from the date if the sale, however, the
Plaintiffs have been unable to complete the sale of the property as aresult of the Defendants refusal and / or neglect to vacate the property.
9. The defendant has been served with a Notice to Vacate the
property, however, has refused to vacate the subject property. The
Plaintiff says the Defendant has wrongfully converted the property and
is occupying the property without permission or consent.
71. Intended Appellant posed the question By what authority do the
Plaintiffs claim to be able to evict the Residential Tenant Andr Murray? ThePlaintiffs did not claim, that Defendant is compelled to vacate the property
according to any New Brunswick Act, rule of Court or any claimed authority
transferred to the Plaintiffs or the Court by any known Law of New Brunswick.
The Defendant has been continuously at the 29 Marshall Street Property since
early 2005 and the Leasehold Tenancy of Intended Appellant Andr Murray
falls squarely under the authority of the New Brunswick Residential Tenancy
Act and the jurisdiction of the Rentalsmen..
72. As found stated above in A/S Nyborg Plast v. Groupe Qualit
Lamque/Lameque Quality Group Ltd., by Justice J. ERNEST DRAPEAU,
J.A. ( as he then was), under Rule 23.01(2)(a), the onus is on the Defendant to
establish that the Court does not have jurisdiction to try the action. In this case,
the objective of any statute interpretation is, of course, to ascertain the true
intent of the application of that statute, by reference to the meaning of the
words, as used to define the application of that specific Statute. The ResidentialTenancies Act S.N.B. 1975, c. R-10.2 is an Act, overseeing all maters
concerning Residential Tenancies in New Brunswick, vesting in the
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Rentalsmen, exclusive jurisdiction in respect of maters concerning Residential
Tenancies.
73. As opposed to the not explicitly stated jurisdiction of the Maritime and
Commercial Court of Copenhagen referred to above in A/S Nyborg Plast v.
Groupe Qualit Lamque/Lameque Quality Group Ltd., supra, While the
Clause does not explicitly state that the jurisdiction of the Maritime and
Commercial Court of Copenhagen over contractual disputes is to be exclusive,
its wording clearly conveys that message., the wording of the Residential
Tenancies Act, clearly and explicitly conveys that all matter arising out ofResidential Tenancies must be settled by, and is in the Jurisdiction, of the New
Brunswick Rentalsmen. The wording of the Act is unambiguous and clearly
conveys that message.
74. Similarly to, as was expressed in paragraph [14], in A/S Nyborg Plast v.
Groupe Qualit Lamque/Lameque Quality Group Ltd., supra, the Residential
Tenancies Act, does have exception to its jurisdiction, not unlike Clause 11.2
in paragraph [14] mentioned above. The Residential Tenancies Act S.N.B.
1975, c. R-10.2, section 2 states Except where otherwise specifically provided
for inthis Act, this Act applies to tenancies of residential premisesand tenancy
agreements respecting such premises, (a) notwithstanding the Landlord and
Tenant Act orany other Act, agreement or waiver to the contrary; The
Judicature Act is not listed as an exception, anywhere in the Residential
Tenancies Act S.N.B. 1975, c. R-10.2,. Specifically provided for, in The
Residential Tenancies Act, is the exclusive jurisdiction of the Court of Queens
Bench, over the adjudication, and only in a special appeal capacity, of any
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dispute arising only after a Rentalsmen has made a decision, which the
Landlord or Tenant wishes to have reviewed.
75. Should this matter of evicting a Residential Tenant be more appropriately
dealt with by Rentalsmen of New Brunswick according to the Residential
Tenancy Act? It is the position of the Defendant that the Plaintiffs filed the
Notice of Action with the intention of circumventing the authority and
jurisdiction of the Residential Tenancies Act S.N.B. 1975, c. R-10.2. The law of
New Brunswick states that if a Residential Tenant is to be evicted, the eviction
must be according to and in pursuance the Residential Tenancies Act of NewBrunswick.
76. The Relevant sections of the Residential Tenancies Act, S.N.B. 1975, c.
R-10.2 is reproduced below as follows:
2 Except where otherwise specifically provided for inthis Act, this Act applies to tenancies of residential premisesand tenancy agreements respecting such premises,
(a) notwithstanding theLandlord and Tenant Actorany other Act, agreement or waiver to the contrary; and
(b) arising or entered into before or after this Actcomes into force.
9(5) With respect to every tenancy agreement enteredinto after this section comes into force, a landlord and atenant who entered into a tenancy agreement and who donot sign a Standard Form of Lease are deemed to have doneso and all provisions of this Act and the Standard Form of
Lease apply.9(7) Where a Standard Form of Lease has not beensigned, the possession of the premises by the tenant creates a tenancyagreement the term of which is to be determined
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by the method of rental payment.
26(2) A rentalsman, in addition to carrying out any otherduties or exercising any other powers under this Act or theregulations,
(a) may advise landlords and tenants in tenancy matters;
(b) may receive complaints and mediate disputes betweenlandlords and tenants;
(c) may disseminate information to educate and adviselandlords and tenants of rental practices, rights and
remedies;
(d) may receive and investigate complaints of conductin alleged contravention of the law of landlord andtenant;
(e) shall make inspections, repairs, collection andpayments under the provisions of sections 5 and 6;
(f) shall establish time limits under the provision ofsections 5 and 6;
(g) shall carry out his duties under section 8 with respectto security deposits;
(h) may conduct investigations and inspections ofpremises;
(i) may receive rental and other payments under theprovisions of this Act;
(j) may enter premises for the purpose of effecting his
duties;(k) may act under the provisions of section 15 withrespect to disposition of chattels; and
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(l) shall act under the provisions of this Act with respectto the termination of tenancies.
26(3) No person shall obstruct, prohibit or interfere withthe right of a rentalsman
(a) to enter the premises where entry is made on a dayother than a Sunday or other holiday and is made betweeneight oclock in the forenoon and eight oclockin the afternoon, or
(b) to carry out his powers and duties under this Act.
77. To be absolutely clear and for the benefit of the Court, the following
definition of notwithstanding is provided from:
http://www.duhaime.org/LegalDictionary/N/Notwithstanding.aspx
NotwithstandingIn spite of, even if, without regard to or impediment by other things.
In spite of, even if, without regard to or impediment by other things asstated.
78. Additionally, the following definition of notwithstanding is from Black's
Law Dictionary (8th ed. 2004),at Page 3378 as follows:
NOTWITHSTANDINGnotwithstanding, prep. Despite; in spite of .
79. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) Justice
SCHWARTZ J. stared the following regarding statutory interpretation (please
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see provided below from paragraph 38 through to and including paragraph 39),
as follows;
[38] I note that the Director argues that the current rule ofstatutory interpretation does not require irresistible clearnessbut rather the words of the statute are to be read in theirentire context and in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act,and the intention of Parliament. That is the language used byIacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII837 (S.C.C.), [1998] 1 S.C.R. 27 where he delivered thejudgment of an unanimous supreme court.
[39] Further the Director submits that the language ofsection 6 of The Interpretation Act of Manitoba, C.C.S.M., c. I80requires the same conclusion.
Rule of liberal interpretation
6 Every Act and regulation must be interpreted as beingremedial and must be given the fair, large and liberalinterpretation that best ensures the attainment of its objects.
80. The Intended Appellant (Defendant in that matter), like the Director in
Royal Bank Of Canada v. Zonneveld, supra, also argues that the current rule
of statutory interpretation does not require irresistible clearness but rather the
words of the statute are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament. That is the language used
by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.),
[1998] 1 S.C.R. 27 where he delivered the judgment of an unanimous supremecourt. Additionally the comparable section of the New Brunswick
Interpretation Act, R.S.N.B. 1973, c. I-13 is as follows:
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17 Every Act and regulation and every provision thereof shallbe deemed remedial, and shall receive such fair, large and liberal
construction and interpretation as best ensures the attainment ofthe object of the Act, regulation or provision.
81. The Residential Tenancies Act of New Brunswick is a remedial act that is
intended to protect the rights of Landlords and Tenants, large and liberal
interpretation best ensures the attainment of its objects.
Maxim - Argumentum ab auctoritate fortissimum est in lege - Anargument drawn from authority is the strongest in law.
82. The New Brunswick Residential Tenancies Act, Section 2 provides that
2 Except where otherwise specifically provided for in this Act, this Act applies
to tenancies of residential premises and tenancy agreements respecting such
premises, (a) notwithstanding the Landlord and Tenant Act or any other Act,
agreement or waiver to the contrary; The Residential Tenancies Act, S.N.B.
1975, c. R-10.2 applies to tenants such as The Intended Appellant (Defendant
in that matter), Andr Murray of residential premises such as 29 MarshallStreet, Fredericton, New Brunswick and Tenancy agreements respecting such
premises such as the one the Intended Appellant (Defendant in that matter), has
entered into in the year 2005 as provided for the Honorable Courts
consideration in the Record on Motion Book.
83. The Intended Respondents (Plaintiffs in that mater), where aware of the
Lease, claimed by the Intended Appellant (Defendant in that matter), Andr
Murray. Sections 9(5) and 9(7) Residential Tenancies Act state clearly that,
the possession of the premises by the tenant creates a tenancy agreement
furthermore a landlord and a tenant who entered into a tenancy agreement
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and who do not sign a Standard Form of Lease are deemed to have done so and
all provisions of this Act and the Standard Form of Lease apply. as stated
above here within it is clear that possession of the premises constitutes tenancy,
written lease or no written lease, furthermore a Landlord and a Tenant who
entered into tacit tenancy agreement and who do not sign a Standard Form of
Lease are deemed to have done so and all provisions of this Residential
Tenancies Act and the Standard Form of Lease apply nevertheless.
84. According to Residential Tenancies Act section 26(2) A rentalsman, in
addition to carrying out any other duties or exercising any other powers under
this Act or the regulations, including section 26(2) (l) shall act under the
provisions of this Act with respect to the termination of tenancies. The
responsibility of termination of residential tenancies is the duty of the
Rentalsman, and the most appropriate action for the Plaintiffs to have taken, to
terminate the tenancy of The Intended Appellant (Defendant in that matter),
Andr Murray, would have been through the appropriate steps overseen by the
Rentalsmen.
85. According to Residential Tenancies Act section 26(2) (b) A Rentalsmen
may receive complaints and mediate disputes between landlords and tenants;
and section 26(2) (d) A Rentalsmen may receive and investigate complaints of
conduct in alleged contravention of the law of landlord and tenant; If there
was a valid issue to be resolved according the Residential Tenancies Act the
most appropriate path was with the authority of a Rentalsmen.
86. Rule 27.09, provides for the striking out of pleadings, portions thereof or
other documents which are scandalous, frivolous, vexatious, or otherwise an
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abuse of the court. The Intended Appellant (Defendant in that matter), claims
that paragraph 8 and 9 of the Plaintiffs Statement of Claim should be struck
because, under Rule 27.09, paragraph 8 and 9 are scandalous, frivolous,
vexatious, or otherwise an abuse of the court, circumventing the authority of the
New Brunswick Residential Tenancies Act and the authority of the
Rentalsmen.
87. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2
specifically designates authority to a Judge of The Court of Queens Bench of
New Brunswick under subsection 27(1) to review and set aside the decision,
order, notice of termination, notice to quit, notice to comply or order of eviction
on the ground that it was made (a) without jurisdiction, or (b) on the basis of an
error of law., made by a Rentalsmen.
88. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2
relevant portions of subsections of 27 are reproduced below:
27(1) Any landlord or tenant affected by any decision
made by the Chief Rentalsman under section 11.2 or section25.41 or by any decision, order, notice of termination,notice to quit, notice to comply or order of eviction madeor issued by a rentalsman, except a decision made by arentalsman under section 11.2 or section 25.41, may,within seven days after being notified of the decision ororder or being served with the notice of termination, noticeto quit, notice to comply or order of eviction, apply byNotice of Application to a judge of The Court of QueensBench of New Brunswick to review and set aside the decision,order, notice of termination, notice to quit, notice
to comply or order of eviction on the ground that it wasmade
(a) without jurisdiction, or(b) on the basis of an error of law.
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27(2) The Notice of Application shall be served,
(a) in the case of an application by the landlord, onthe rentalsman or the Chief Rentalsman, as the case maybe, and the tenant, and(b) in the case of an application by the tenant, on the
rentalsman or the Chief Rentalsman, as the case maybe, and the landlord in accordance with the Rules of Court.
27(3) A judge of The Court of Queens Bench of NewBrunswick may, before or after the expiration of the timefor making an application under subsection (1), extend thetime within which the application may be made.
27(5) The judge hearing the application may receivesuch evidence, oral or written, as is relevant to support orrepudiate any allegation contained in the application.
27(6) An application under subsection (1) stays the operationof the decision, order, notice of termination, noticeto quit, notice to comply or order of eviction in respect ofwhich the application is made.
27(7) After hearing the application, the judge may allowthe application and set aside the decision, order, notice oftermination, notice to quit, notice to comply or order ofeviction or may dismiss the application.
27(8) Where an application under subsection (1) is dismissedthe judge shall make an order establishing the dateon which the decision, order, notice of termination, noticeto quit, notice to comply or order of eviction is to be effective.
27(9) Where a judge allows the application the judgeshall set aside the decision, order, notice of termination,notice to quit, notice to comply or order of eviction andrefer the matter to the rentalsman or the Chief Rentalsman,
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as the case may be, with directions as to the manner inwhich the rentalsman or the Chief Rentalsman is to proceed,
and the rentalsman or the Chief Rentalsman shallproceed with the matter in accordance with those directions.
27(10) To the extent that they are not inconsistent withthe provisions of this section, the Rules of Court apply inrespect of an application made under this section.
89. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2
specifically designates authority to a Judge of The Court of Queens Bench of
New Brunswick under subsection 27(1) to act only after a decision has beenmade by made by a Rentalsmen, not before. The capacity of the Judge of The
Court of Queens Bench of New Brunswick under subsection 27(1) is clearly
that of a special Justice of a Appeal capacity.
90. Black's Law Dictionary (8th ed. 2004) , Page 2490 defined Jurisdiction as
follows:
JURISDICTIONjurisdiction,n.1. A government's general power to exercise authorityover all persons and things within its territory; esp., a state's power tocreate interests that will be recognized under common-law principles asvalid in other states . Also termed (in sense 2)competent jurisdiction; (in both senses) coram judice. [Cases: Courts 3;Federal Courts 3.1, 161. C.J.S. Courts 9, 18.]
91. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2
specifically designates authority or jurisdiction to a Judge of The Court of
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Queens Bench of New Brunswick under subsection 27(1) specifically as the
Court's power to decide a case or issue a decree after a decision has been made
by made by a Rentalsmen.
92. The Intended Appellant (Defendant in that matter), asserts that the
necessary condition on which the jurisdiction of the Court of Queens Bench
can be engaged is under subsection 27(1) of the New Brunswick Residential
Tenancies Act S.N.B. 1975, c. R-10.2 is only after the prerequisite decision or
Order of the Rentalsmen is issued, otherwise the Court of Queens Bench Trial
division has no Jurisdiction to hear matters regarding the New BrunswickResidential Tenancies Act S.N.B. 1975, c. R-10.2 and specifically in the
Defendants case, the matter of a Notice to Vacate a Residential Property or
Termination of a Residential Tenancy.
93. Section 26 (1) ofThe New Brunswick Residential Tenancies Act S.N.B.
1975, c. R-10.2 is reproduced below:
RENTALSMEN
26(1) The Lieutenant-Governor in Council may appointone or more persons as rentalsmen who shall carry out suchduties as are prescribed by this Act and the regulations
94. The Intended Appellant (Defendant in that matter), asserts that it is the
Jurisdiction of the Rentalsmen to carry out such duties as are prescribed by the
New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 as explained
in Section 26, those duties in Section 26 having been reproduced already above.
95. According to Residential Tenancies Act section 26(2) A rentalsman, in
addition to carrying out any other duties or exercising any other powers under
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this Act or the regulations, is including section 26(2) (l) shall act under the
provisions of this Act with respect to the termination of tenancies. Termination
of any Residential Tenancy should first be the responsibility of the Tenant and
or Landlord in that order. The Rentalsmen would only be terminating a Lease in
the event there is a irreconcilable dispute between the Landlord and or Tenant.
Jurisdiction
96. The New Brunswick Residential Tenancies Act Section 26 (1) clearly
states who shall carry out the duties as are prescribed by Residential Tenancies
Act, please see: Section 26 (1) ofThe New Brunswick Residential TenanciesAct S.N.B. 1975, c. R-10.2 is reproduced below:
RENTALSMEN26(1) The Lieutenant-Governor in Council may appointone or more persons as rentalsmen who shall carry out suchduties as are prescribed by this Act and the regulations.
97. The person known as the Rentalsmen, is the person who may carry out
such duties, as are legislated by Residential Tenancies Act, and has jurisdictionover matters regarding the Residential Tenancies Act, the question arises, what
role does a Judge of The Court of QueensBench of New Brunswick, have in
relation to Residential Tenancies Act.
98. In determining if this Honorable Court has Jurisdiction to hear matters
regarding Residential Tenancies Act, may require the interpretation of two
statues namely:
Residential Tenancies Act, S.N.B. 1975, c. R-10.2
Judicature Act, R.S.N.B. 1973, c. J-2
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99. Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act,R.S.N.B. 1973, c. J-2 claim that each Act is respectively notwithstanding any
other Act, which would of course include each other.
100. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327
provided the following excerpt:
Leges posteriores priores contrarias abrogant. Subsequent lawsrepeal prior conflicting ones. [Cases: Statutes 159, 162. C.J.S.
Statutes 287, 294.]
101. The definition of the Maxim Leges posteriores priores contrarias abrogant
is provided at the Legal Dictionary website at the following URL at
(http://legal-
dictionary.thefreedictionary.com/Leges+posteriores+priores+contrarias+abroga
nt)
Leges posteriores priores contrarias abrogant. Subsequent lawsrepeal those before enacted to the contrary. 2 Rol. R. 410; 11 Co.626, 630. A Law Dictionary, Adapted to the Constitution and Lawsof the United States. By John Bouvier. Published 1856.
102. The definition of Leges posteriores priores contrarias abrogant is provided
by Wikipedia, at the following URL:
http://en.wikipedia.org/wiki/Implied_repeal
Implied repeal
The doctrine of implied repeal is a concept in English constitutionaltheory which states that where an Act of Parliament conflicts withan earlier one, the later Act takes precedence and the conflictingparts of the earlier Act are repealed (i.e. no longer law). This
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doctrine is expressed in the Latin phrase "leges posteriores priorescontrarias abrogant".
103. Leges Posteriores Priores Contrarias Abrogant: This method of statutory
construction in this case, applies to Residential Tenancies Act, S.N.B. 1975, c.
R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2. The concept of this stature is
the newer statute later abrogates a prior statute only where the two are
manifestly inconsistent with and repugnant to each other. The rationale for
this form of construction is that the newer statute more accurately depicts the
current societal mood or more appropriately applies Jurisdiction to a givensubject.
104. Though both Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and
Judicature Act, R.S.N.B. 1973, c. J-2 claim that each Act is respectively
Notwithstanding any other Act, which would of course apply to each of the
here within mentioned Acts, based on the Maxim Leges posteriores priores
contrarias abrogant, Residential Tenancies Act enacted in 1975, takes
precedence therefore the conflicting parts of the earlier Judicature Act enacted
in 1973, are in effect, now subordinate.
105. Based on the Maxim Leges posteriores priores contrarias abrogant, the
Residential Tenancies Act, is in fact, notwithstanding the any other Act,
agreement or waiver to the contrary which includes Judicature Act, R.S.N.B.
1973, c. J-2.
106. For the benefit of the Court, the following definition of notwithstanding
is provided from:
http://www.duhaime.org/LegalDictionary/N/Notwithstanding.aspx
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Notwithstanding
In spite of, even if, without regard to or impediment by otherthings.
In spite of, even if, without regard to or impediment by other thingsas stated.
107. Additionally, the following definition of notwithstanding is from Black's
Law Dictionary (8th ed. 2004),at Page 3378 as follows:
NOTWITHSTANDINGnotwithstanding, prep. Despite; in spite of .
108. The subject section of the Residential Tenancies Act, S.N.B. 1975, c. R-
10.2, which includes notwithstanding is reproduced below as follows:
2 Except where otherwise specifically provided for inthis Act, this Act applies to tenancies of residential premisesand tenancy agreements respecting such premises,
(a) notwithstanding theLandlord and Tenant Act orany other Act, agreement or waiver to the contrary; and
(b) arising or entered into before or after this Actcomes into force.
109. The subject section of the Judicature Act, R.S.N.B. 1973, c. J-2 which
includes notwithstanding is reproduced below as follows:
9(1) Notwithstanding anything in the provisions of thisor any other Act or the Rules of Court, the Trial Divisionshall have and exercise general and original jurisdiction inall causes and matters including jurisdiction in the following
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