Court of Appeal, is a Court of Law that is empowered to hear an appeal of any decision from the lower Trial Court Division or any other lower tribunal on the premise Court of Appeal is a Court of Law that is intended to correct the errors made by lower Courts.

Court of Appeal is usually restricted to examining whether the court and or judge made the correct legal determinations (for example)not based on reasonable apprehension of bias, rather than hearing direct evidence therefore correctly determining what the facts are based on arguement offered by the parties to the action. Furthermore, Court of Appeal is usually restricted to hearing appeals based on matters that were originally brought up before the trial court. Hence, Court of Appeal will not however consider an appellant's argument if it is based on a theory that is raised for the first time in the ourt of Appeal hearing.

Parties before the Court of Appeal should be allowed one appeal as of right. This means that a party who is unsatisfied with the outcome of any hearing and or trial may bring an 'appeal' to contest that outcome. The Court of Appeal must find an error on the part of the court below that justifies upsetting the verdict. Only a small proportion of New Brunswick's Trial Court decisions result in sucessful appeals.

“The Court of Appeal is the highest court in this province; hears appeals in criminal and civil matters. It hears appeals from the Court of Queen's Bench, Probate Court, Provincial Court (indictable offences) and various administrative tribunals, for example, the appeals tribunal under the Workplace Health, Safety and Compensation Commission Act. The court sits in Fredericton, although it may sit elsewhere if the Chief Justice of New Brunswick so directs.” per (http://www.gnb.ca/cour/overview-e.asp#ca)

In our jurisdiction, the court system is divided into three levels: the trial court, which initially hears cases and reviews evidence and testimony to determine the facts of the case; the appellate court; and a supreme court (or court of last resort) which primarily reviews the decisions of the intermediate courts. A jurisdiction's supreme court is that jurisdiction's highest appellate court.

To understand what the Court of Appeal, does and is, it may be helpful to understand the concepts of Procedural Fairness and or Natural Justice, which the Curt of Appeal concerns itself with.

Procedural Fairness and or Natural Justice

Procedural Fairness and or Natural Justice is a term that denotes specific procedural rights in the English legal system and the systems of other nations based on it. While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly". What is required to fulfill this duty depends on the context in which the matter arises.

There are two rules that natural justice is concerned with.

These are the rule against bias (nemo iudex in causa sua) and
The right to a fair hearing (audi alteram partem).

The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult to prove in practice while imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias.

The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case.

The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice.

The following article is a good introduction into the principle which govern Natural Justice:

NATURAL JUSTICE

What are the rules of natural justice?

The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker.

Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.

A word used to refer to situations where audi alteram partem (the right to be heard) and nemo judex in parte sua (no person may judge their own case) apply.

The principles of natural justice were derived from the Romans who believed that some legal principles were "natural" or self-evident and did not require a statutory basis.

These two basic legal safeguards must reasonably, govern all decisions, by judges or government officials when they take quasi-judicial or judicial decisions.

Three common law rules are referred to in relation to natural justice or procedural fairness.

The Hearing Rule

This rule requires that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker.

To ensure that these rights are respected, the deciding authority must give both the opportunity to prepare and present evidence and to respond to arguments presenting by the opposite side.

When conducting an inquiry, in relation to a complaint, it is important that the person being complained against is advised of the allegations in as much detail as possible and given the opportunity to reply to the allegations.

The Bias Rule

This second rule states that no one ought to be judge in his or her case. This is the requirement that the deciding authority must be unbiased when according the hearing or making the decision.

Additionally, investigators and decision-makers must act without bias in all procedures connected with the making of a decision.

A decision-maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before him or her without favouring one party over another.

Even where no actual bias exists, investigators and decision-makers should be careful to avoid the appearance of bias. Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation.

The Evidence Rule

The third rule is that an administrative decision must be based upon logical proof or evidence material.

Investigators and decision makers should not base their decisions on mere speculation or suspicion.

Rather, an investigator or decision maker should be able to clearly point to the evidence on which the inference or determination is based.

Evidence (arguments, allegations, documents, photos, etc..) presented by one party must be disclosed to the other party, who may then subject it to scrutiny.

Credit goes to Paul H.Cody for this article. Thank you.

Court of Appeal

When I am preparing for a Court of Appeal Leave to Appeal Hearing, the following is sample of what I would prepare to provide in my written submission, either a Submission which would be a larger document having full citations of case law and expanded arguments (approximately 50 - 200 pages), then I would prepare a brief version, cut down to it's essential elements, otherwise known as a Brief (approximately 10 - 40 pages).

The relevant Rules of Court are as follows:

62.03 Leave to Appeal

(1) Where a party seeks to appeal from

(a) an interlocutory order or decision,

(b) an order or decision as to costs only, or

leave to appeal must be obtained by motion to a judge of

the Court of Appeal.

(1.1) A party who moves for leave to appeal from an

interlocutory order or decision may move in the alternative

for an extension of time to issue and serve a Notice

of Appeal (Form 62B) in the event that the judge hearing

the motion rules that the order or decision is not interlocutory.

(2) A Notice of Motion for Leave to Appeal (Form

62A) shall be served within 7 days from the date of the order

or decision sought to be appealed, or within such further

time as is allowed by the judge hearing the motion for

leave, and the provisions of Rule 37 apply where not inconsistent

with this subrule.

(3) The record on a motion under paragraph (1) shall

consist of

(a) an index,

(b) a copy of the notice of motion,

(d) a copy of the pleadings, if any, and

(e) a copy of any affidavits or other evidence relevant

to the appeal.

(4) In considering whether or not to grant leave to appeal,

the judge hearing the motion may consider the following:

(a) whether there is a conflicting decision by another

judge or court upon a question involved in the proposed

appeal;

(b) whether he or she doubts the correctness of the order

or decision in question; or

involves matters of sufficient importance.

(5) A judge granting leave to appeal may

(a) impose such terms as may be just, and

(b) give directions to expedite the hearing of the appeal.

(6) Subject to any directions given under paragraph

(5), this rule applies to an appeal where leave to appeal has

been granted.

62.25 Format of Appeal Book, Submissions and

Books of Essential References

(1) The Appeal Book and each Submission shall be

produced legibly on both sides of good quality white

letter-size paper with margins of approximately 4 centimetres

and shall be bound. The pages shall be consecutively

numbered commencing with the first page of text

after the index. The characters used shall be at least 12

point or 10 pitch size. The lines shall be at least one and

one-half lines apart, except for quotations from authorities

which shall be indented and single-spaced.

(2) The front cover of the Appeal Book, of each Submission

and of each Book of Essential References shall

(a) be entitled in the Court of Appeal and in the proceeding,

(b) indicate

(i) in block letters, the status of the parties in the

Court of Appeal, with the appellant appearing first in

all cases, and

(ii) in brackets, in lower case, the status of the parties

in the court appealed from,

Submission, a Respondent’s Submission, a Further

Submission, a Book of Essential References or a Joint

Book of Essential References, and

(d) with respect to the solicitors of record, list their

names, addresses for service, e-mail addresses, if any,

business telephone numbers and telephone numbers, if

any, to which documents may be transmitted to produce

facsimiles of the documents.

(3) The covers of an Appeal Book shall be grey, those

of the Appellant’s Submission buff, those of the Respondent’s

Submission dark green, those of a Further Submission

red and those of a Book of Essential References or of

a Joint Book of Essential References light blue.

(4) Unless ordered otherwise by a judge of the Court

of Appeal, the Registrar may refuse to receive a document

which does not comply with this rule.

Clarification: The record on a motion under paragraph (1) is made up of the following:

(a) an index, (which an index of the contents of the Record on Motion)

(b) a copy of the notice of motion, (a copy of the Notice of Motion for Leave to Appeal (Form

62A) which you would have had to serve on the other parties.

(c) a copy of the order or decision sought to be appealed,( a copy of the written decision or Order that the Trial Judge did sign, which one wishes to Appeal)

(d) a copy of the pleadings, if any, (a copy of the:

16A Notice of Action with Statement of Claim Attached

16B Notice of Action

16C Statement of Claim (where action was commenced by Notice of Action)

27A Statement of Defence

27B Reply

27C-1 Statement of Defence and Counterclaim

27C-2 Statement of Defence and Counterclaim

27D Defence to Counterclaim

27E Reply to Defence to Counterclaim

27F Statement of Defence and Cross-Claim

27G Defence to Cross-Claim

27H Reply to Defence to Cross-Claim

27I Third Party Claim

27J Third Party Defence

27K Reply to Third Party Defence

27L Demand for Particulars

27M Statement of Particulars

16D Notice of Application

37A Notice of Motion

which applies or is relevant in ones case.)

(e) a copy of any affidavits or other evidence relevant to the appeal. (a copy of the relevant Affidavits used by the Parties, at the Hearing which produced the decision or Order of the Trial Judge, which one wishes to Appeal

Cover Page Example

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)

Record on Motion

Filed by self represented

INTENDED APPELLANT ANDRE MURRAY

Submission

Sample

Index

Intended Appellant’s Submission

For Motion for Leave to Appeal

Appellants Brief index

Index

Page

IINTENDED APPELLANT’S 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__________

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 _____________

Facts

(a) a succinct outline of the facts the party intends to establish,

1. Basically the facts that one has established by submitted Affidavit.

(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 upon a question involved in the proposed appeal and, in the opinion of the judge hearing the motion, it is desirable that leave to appeal be granted?

3. Does the judge hearing the motion doubts the correctness of the order or decision in question?

4. Does the judge hearing the motion consider that the appeal involves matters of such importance that leave to appeal should be granted?

5. Should the Court grant leave to Appeal?

6. Should the Court grant a stay of proceedings?

(c) a concise statement of the principles of law on which the party relies and citation of relevant statutory provisions and leading authorities, and

FINAL ORDER OR DECISION

46. The nature of the decision, Dated ................, by the Honorable .............., 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 .............. The decision being Appealed, dated ........... accomplishes this intended goal.

49. In essence the matter is resolved, (through the impugned Order Dated ............), 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: Is Justice McLellan’s decision final or interlocutory? If it is final, leave to appeal is not required.

[8] In this Province, the leading authority on 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 determination of the threshold question at issue here, at pages 133-34:

13 In my opinion, the question whether an order or decision is interlocutory or final should be determined by looking at the order or decision itself, and its character is not affected by the nature of the order or decision which could have been made had a different result been reached. If the nature of the order or decision as made finally disposes of, or substantially decides the rights of the parties, it ought to be treated as a final order or decision. If it does not, and the merits of the case remain to be determined, it is an interlocutory order or decision.

[9] The analytical framework articulated in Bourque has withstood the test of time. See Lawson et al. v. Poirier et al. 1994 CanLII 6525 (NB C.A.), (1994), 152 N.B.R. (2d) 394 (C.A.), per Ryan J.A. at paras. 9_13; Western Surety Co. v. National Bank of Canada 2001 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 CanLII 8754 (NB C.A.), (2000), 231 N.B.R. (2d) 198 (C.A.), per Turnbull J.A.; and Doug’s Recreation Centre Ltd. et al. v. Polaris Industries Ltd. 2001 CanLII 19446 (NB C.A.), (2001), 237 N.B.R. (2d) 190 (C.A.), per Robertson J.A. The question whether Mr. MacArthur must obtain leave to appeal is to be determined within that analytical framework.

52. Black's Law Dictionary (8th ed. 2004), at Page 1982 provides the following definition of Functus Officio as follows:

FUNCTUS OFFICIO

functus officio [Latin “having performed his or her office”] (Of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.

• The term is sometimes abbreviated to functus <the court was 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............. and inter alia the other relief which was sought between the 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”]

1. An issue that has been definitively settled by judicial decision. [Cases: Judgment 540, 584, 585. C.J.S. Judgments §§ 697–700, 702–703, 749, 752.]

2. An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same 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) a final judgment on the merits, and (3) the involvement of the same parties, 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. COLLATERAL ESTOPPEL. [Cases: Judgment 540, 584, 948(1). C.J.S. Judgments §§ 697–700, 702–703, 752, 930–931, 933.]

“ ‘Res judicata’ has been used in this section as a general term referring to all of the ways in which one judgment will have a binding effect on another. That usage is and doubtless will continue to be common, but it lumps under a single name two quite different effects of judgments. The first is the effect of foreclosing any litigation of matters that never have been litigated, because of the determination that they should have been advanced in an earlier suit. The second is the effect of foreclosing relitigation of matters that have once been litigated and decided. The first of these, preclusion of matters that were never litigated, has gone under 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 has long argued for the use of the names ‘claim preclusion’ and ‘issue preclusion’ for these two doctrines [Vestal, Rationale of Preclusion, 9 St. Louis U. L.J. 29 (1964)], and this usage is increasingly employed by the courts as it is by Restatement Second of Judgments.” Charles Alan Wright, The Law of Federal Courts § 100A, at 722–23 (5th ed. 1994).

55. The three listed essential elements would be present, for the Plaintiffs to be reasonably able to claim Res Judicata, which are:

(1) an earlier decision on the issue, which would be in this instance, .........;

(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 ......................., could not rule again on these same matters between the parties;

(3) the involvement of the same parties, or parties in privity with the original parties such as in this case .....................

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 Honorable Zoël R. Dionne is interlocutory; the Intended Appellant André 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 to appeal shall not be granted unless:

(a) there is a conflicting decision by another judge or court upon a question involved in the proposed appeal and, in the opinion of the judge hearing the motion, it is desirable that leave to appeal be granted,

(b) the judge hearing the motion doubts the correctness of the order or decision in question, or

(c) the judge hearing the motion considers that the appeal involves matters of such importance that leave to appeal should be granted.

[14] Neither this Court nor the Supreme Court of Canada has considered the questions of law raised by Mr. MacArthur. While I am not persuaded that Justice McLellan’s decision is wrong, I do entertain a doubt of the kind contemplated by Rule 62.03(4)(b). That being so, does leave to appeal automatically follow?

[15] In Breen 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, by itself, compel the issuance of an order granting leave to appeal. I went on to add that Rule 62.03(4) vests in the judge hearing the motion a “residual discretion to deny leave even where one or more of the preconditions have been satisfied”. I remain firmly committed to that view.

[16] The meaning and effect of Rule 62.03(4) must be ascertained on the basis of its wording and the Rules of Court as a whole. Needless to say, the Rule should be interpreted in a commonsensical manner and with a view to promoting the most efficient use of judicial resources. See Smith v. 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 the judge’s jurisdiction to grant leave to appeal. The Rule’s opening words are: “Leave to appeal shall not be granted unless...”, not “Leave to appeal shall be granted...”.

[18] Clauses (a) and (c) of Rule 57.02(4) of the 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 of Procedure reads as follows:

(4) Leave to appeal an interlocutory order may be granted where

(a) there is a conflicting decision by another judge or court upon a question involved in the proposed appeal and, in the opinion of the Court, it is desirable that leave to appeal be granted,

(b) the Court doubts the correctness of the order in question,

(d) the Court considers that the nature of the issue is such that any appeal on that issue following final judgment would be of no practical effect.

[19] It will be seen that although clauses (a) and (c) of the Newfoundland & Labrador Rule feature, like the corresponding clauses in our Rule, a preservation of judicial discretion, the opening phrase provides that “[l]eave to appeal an interlocutory order may be granted where...” [Emphasis added.] Obviously, the drafters of the Newfoundland & Labrador Rule did not see any incompatibility between the wording of clauses (a) and (c) and a general judicial discretion to deny leave. In Business Development Bank of Canada v. White Ottenheimer & Baker 2002 NFCA 10 (CanLII), (2002), 209 Nfld. & P.E.I.R. 167 (C.A.), Cameron J.A., who delivered the Court’s reasons for judgment, observed, at para. 2, that “even if one or more of the factors are present, the Court still has the discretion to refuse to hear an appeal prior to the completion of the trial”. See, as well, White v. True North Springs Ltd., 2002 NLCA 65 (CanLII), 2002 NLCA 65; [2002] N.J. No. 282 (C.A.), online: QL (NJ).

[20] Rule 62.03(4) cannot be interpreted in isolation. As noted, its meaning and effect must be ascertained having regard to the Rules of Court as a whole. Rules 1.03(2) and 62.21(6) play an important role in the interpretative exercise required here. Rule 1.03(2) directs courts to liberally construe the rules “to secure the just, least expensive and most expeditious determination of every proceeding on its merits”. Rule 62.21(6) provides that “[a]n interlocutory order or decision from which there has been no appeal shall not operate to prevent the Court of Appeal from rendering any decision or making any order”.

[21] Interlocutory orders and decisions vary greatly in terms of their relative importance within the litigation process and today’s contested interlocutory order or decision may well be entirely moot tomorrow. One can easily imagine a situation where the judge hearing the motion might doubt the correctness of the impugned interlocutory order or decision but conclude that granting leave to appeal would not be conducive to the just, least expensive and most expeditious determination of the proceedings on its merits. Indeed, circumstances may arise where granting leave to appeal because of some doubt as to the correctness of the interlocutory order or decision might well work against the best interests of the administration of justice.

[22] In my view, Rule 62.03(4) does not obligate the judge hearing the motion to grant leave just because one or more of the conditions contained in clauses (a), (b) and (c) have been met. The judge retains a residual discretion to deny leave where such an outcome would be in the best interests of justice. Any other interpretation would fail to give effect to the wording of the opening phrase in Rule 62.03(4) and the significant safeguard provided by Rule 62.21(6). Moreover, it would be unfaithful to Rule 1.03(2) and, insofar as clause (b) is concerned, incompatible with common sense. I would add that if the drafters of Rule 62.03(4) had intended to strip the judge of any residual discretion in the exercise of his or her jurisdiction under Rule 62.03(4), they could and likely would have employed clear wording to that end.

[23] Factors such as the relative importance of the interlocutory order or decision in the litigation process and the repercussions of granting leave come into play in the exercise of that residual discretion. As Cameron J.A. noted in Business Development Bank of Canada v. White Ottenheimer & Baker, at para. 2, the “matter always involves the weighing of interference, by the appeal process, with the timely administration of justice against the interest of the appellant in having the matter resolved immediately”.

[24] Justice McLellan’s decision appears to be quite significant in terms of its likely influence on the conduct of the action in the case at hand. As well, the action is not entered for trial; in fact, the discovery process is not completed. Finally, there is no evidence that an order granting leave to appeal might cause prejudice of a serious nature to any party. The cumulative effect of these considerations leads me to conclude that leave should be granted pursuant to Rule 62.03(4)(b).

Disposition

[25] The motion for leave to appeal is allowed, 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:

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 proposed appeal and, in the opinion of the judge hearing the motion, 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 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 and the intention of the Manitoba legislature were to bring evictions of tenants by mortgagees within the framework of and subject to the provisions of the R.T.A. That intention has, in my view, been expressed with the “irresistible clearness” described by Philp J.A. quoting L’Heureux-Dubé at paragraph 20 as follows:

20 In R. v. T. (V.), 1992 CanLII 88 (SCC), [1992] 1 S.C.R. 749 at 764, L'Heureux-Dubé J. observed:

... while it is open to Parliament ..., subject to over-arching constitutional norms, ... to change the law in whatever way it sees fit, the legislation in which it chooses to make these alterations known 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 rights of the mortgagee has not been expressed "with irresistible clearness," if at all, in the Act. See: Goodyear Tire & Rubber Co. of Canada Ltd. et al. v. T. Eaton Co. Ltd. et al., 1956 CanLII 2 (SCC), [1956] S.C.R. 610 at 614; and R. Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994) at 368.

[38] I note that the Director 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 (SCC), [1998] 1 S.C.R. 27 where he delivered the judgment of an unanimous supreme court.

[39] Further the Director submits that the language of section 6 of The Interpretation Act of Manitoba, C.C.S.M., c. I80 requires the same conclusion.

Rule of liberal interpretation

6 Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal interpretation that best ensures the attainment of its objects.

[40] I recognize that I am bound to apply as a test the latest expression of the Supreme Court, namely the language of Iacobucci J. in Rizzo (above).

[41] Having reviewed and considered its entire context, and applying the words of the R.T.A., and in particular the amended definition of landlord, in their grammatical and ordinary sense, harmoniously, with the scheme of that Act, its object and the intention of the Manitoba legislature, this Court must refuse the order of possession sought. The Mortgagee is bound to obtain possession in accordance with the R.T.A.

[42] Argument was presented by the Mortgagee on the practical difficulties of requiring a mortgagee to comply with the R.T.A. Those arguments were countered by the Director and may be found at pages 18 et seq. of his brief.

[43] I do not intend to comment on those arguments in these reasons. They are policy issues properly brought before an appropriate legislative committee when amendments to the Act are considered.

IX Final Result

[44] The application for an order of possession against the Tenants is therefore refused. The application for an order of possession against the Owners is granted. The Mortgagee is entitled to its costs against the Owners.

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.

B) Leave to appeal shall be granted as follows:

Rule 62.03(4) (b) the judge hearing the motion doubts the correctness of the order or decision in question.

64. The intended Appellant posed the question to the Learned Trial Judge “Does 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 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,

67. Further the Intended Appellant André 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 Plaintiff’s 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 André Murray did seek an order Under Rule 23.01(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 André 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:

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 a result of the Defendant’s 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 André Murray? The Plaintiffs 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 André 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 Qualité Lamèque/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 Residential Tenancies Act S.N.B. 1975, c. R-10.2 is an Act, overseeing all maters concerning Residential Tenancies in New Brunswick, vesting in the 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 Qualité Lamèque/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 of Residential 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 Qualité Lamèque/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 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 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 Queen’s Bench, over the adjudication, and only in a special “appeal” capacity, of any 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 New Brunswick.

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 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; and

(b) arising or entered into before or after this Act

comes into force.

9(5) With respect to every tenancy agreement entered

into after this section comes into force, a landlord and a

tenant who entered into a tenancy agreement 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.

9(7) Where a Standard Form of Lease has not been

signed, the possession of the premises by the tenant creates a tenancy agreement the term of which is to be determined

by the method of rental payment.

26(2) A rentalsman, in addition to carrying out any other

duties or exercising any other powers under this Act or the

regulations,

(a) may advise landlords and tenants in tenancy matters;

(b) may receive complaints and mediate disputes between

landlords and tenants;

(c) may disseminate information to educate and advise

landlords and tenants of rental practices, rights and

remedies;

(d) may receive and investigate complaints of conduct

in alleged contravention of the law of landlord and

tenant;

(e) shall make inspections, repairs, collection and

payments under the provisions of sections 5 and 6;

(f) shall establish time limits under the provision of

sections 5 and 6;

(g) shall carry out his duties under section 8 with respect

to security deposits;

(h) may conduct investigations and inspections of

premises;

(i) may receive rental and other payments under the

provisions of this Act;

(j) may enter premises for the purpose of effecting his

duties;

(k) may act under the provisions of section 15 with

respect to disposition of chattels; and

(l) shall act under the provisions of this Act with respect

to the termination of tenancies.

26(3) No person shall obstruct, prohibit or interfere with

the right of a rentalsman

(a) to enter the premises where entry is made on a day

other than a Sunday or other holiday and is made between

eight o’clock in the forenoon and eight o’clock

in 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

Notwithstanding

In 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 as stated.

78. Additionally, the following definition of ‘notwithstanding’ is from Black's Law Dictionary (8th ed. 2004),at Page 3378 as follows:

NOTWITHSTANDING

notwithstanding, prep. Despite; in spite of <notwithstanding the conditions listed above, the landlord can terminate the lease if the tenant defaults>.

79. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) Justice SCHWARTZ J. stared the following regarding statutory interpretation (please 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 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 supreme court.

[39] Further the Director submits that the language of section 6 of The Interpretation Act of Manitoba, C.C.S.M., c. I80 requires the same conclusion.

Rule of liberal interpretation

6 Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal interpretation 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 supreme court.” Additionally the comparable section of the New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 is as follows:

17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the 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 - An argument 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), André Murray of residential premises such as 29 Marshall Street, 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 Court’s 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), André 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 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), André 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 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 Queen’s 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 section

25.41 or by any decision, order, notice of termination,

notice to quit, notice to comply or order of eviction made

or issued by a rentalsman, except a decision made by a

rentalsman under section 11.2 or section 25.41, may,

within seven days after being notified of the decision or

order or being served with the notice of termination, notice

to quit, notice to comply or order of eviction, apply by

Notice of Application to a judge of The Court of Queen’s

Bench 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 was

made

(a) without jurisdiction, or

(b) on the basis of an error of law.

27(2) The Notice of Application shall be served,

(a) in the case of an application by the landlord, on

the rentalsman or the Chief Rentalsman, as the case may

be, and the tenant, and

(b) in the case of an application by the tenant, on the

rentalsman or the Chief Rentalsman, as the case may

be, and the landlord in accordance with the Rules of Court.

27(3) A judge of The Court of Queen’s Bench of New

Brunswick may, before or after the expiration of the time

for making an application under subsection (1), extend the

time within which the application may be made.

27(5) The judge hearing the application may receive

such evidence, oral or written, as is relevant to support or

repudiate any allegation contained in the application.

27(6) An application under subsection (1) stays the operation

of the decision, order, notice of termination, notice

to quit, notice to comply or order of eviction in respect of

which the application is made.

27(7) After hearing the application, the judge may allow

the application and set aside the decision, order, notice of

termination, notice to quit, notice to comply or order of

eviction or may dismiss the application.

27(8) Where an application under subsection (1) is dismissed

the judge shall make an order establishing the date

on which the decision, order, notice of termination, notice

to quit, notice to comply or order of eviction is to be effective.

27(9) Where a judge allows the application the judge

shall set aside the decision, order, notice of termination,

notice to quit, notice to comply or order of eviction and

refer the matter to the rentalsman or the Chief Rentalsman,

as the case may be, with directions as to the manner in

which the rentalsman or the Chief Rentalsman is to proceed,

and the rentalsman or the Chief Rentalsman shall

proceed with the matter in accordance with those directions.

27(10) To the extent that they are not inconsistent with

the provisions of this section, the Rules of Court apply in

respect 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 Queen’s Bench of New Brunswick under subsection 27(1) to act only after a decision has been made by made by a Rentalsmen, not before. The capacity of the Judge of The Court of Queen’s 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:

JURISDICTION

jurisdiction,n.1. A government's general power to exercise authority over all persons and things within its territory; esp., a state's power to create interests that will be recognized under common-law principles as valid in other states <New Jersey's jurisdiction>. [Cases: States 1. C.J.S. States §§ 2, 16.]

2. A court's power to decide a case or issue a decree < the constitutional grant of federal-question jurisdiction>. — 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 Queen’s 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 Queen’s 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 Queen’s Bench Trial division has no Jurisdiction to hear matters regarding the New Brunswick Residential 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) of The 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 appoint

one or more persons as rentalsmen who shall carry out such

duties 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 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) of The 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 appoint

one or more persons as rentalsmen who shall carry out such

duties 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 jurisdiction over matters regarding the Residential Tenancies Act, the question arises, what role does a Judge of The Court of Queen’s Bench 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:

Ø Residential Tenancies Act, S.N.B. 1975, c. R-10.2

Ø Judicature Act, R.S.N.B. 1973, c. J-2

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 laws repeal 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+abrogant)

Leges posteriores priores contrarias abrogant. Subsequent laws repeal those before enacted to the contrary. 2 Rol. R. 410; 11 Co. 626, 630. A Law Dictionary, Adapted to the Constitution and Laws of 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 constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed (i.e. no longer law). This doctrine is expressed in the Latin phrase "leges posteriores priores contrarias 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 given subject.

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

Notwithstanding

In 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 as stated.

107. Additionally, the following definition of ‘notwithstanding’ is from Black's Law Dictionary (8th ed. 2004),at Page 3378 as follows:

NOTWITHSTANDING

notwithstanding, prep. Despite; in spite of <notwithstanding the conditions listed above, the landlord can terminate the lease if the tenant defaults>.

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 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; and

(b) arising or entered into before or after this Act

comes 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 this

or any other Act or the Rules of Court, the Trial Division

shall have and exercise general and original jurisdiction in

all causes and matters including jurisdiction in the following

matters, namely:

(a) all causes and matters, civil and criminal, that were within the exclusive cognizance of the Supreme Court in the exercise of its original common law jurisdiction, before the commencement of the Judicature Act, 1909;

(b) all causes and matters that prior to July 1, 1966, were assigned to or cognizable by the Chancery Division;

(c) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the County Court of New Brunswick; and

(d) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the Queen’s Bench Division of the Supreme Court.

110. To understand the use of the term and meaning of ‘notwithstanding’ requires that we interpret the subject statutes. The interpretation of a statute is a question of law, and correctness is the standard of review applicable in this case. Statutory interpretation should be approached with the following analytical framework set out in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27, at pages 40 and 41:

Although much has been written about the interpretation of legislation . . ., Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act 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.

111. In applying this principle it is instructive to look at the objectives set out in section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, which provides “the Trial Division shall have and exercise general and original jurisdiction in all causes and matters”, while at the same time, section 27(1), 27(2), 27(3), 27(5), 27(6), 27(7), 27(8), 27(9) and 27(10) of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2, clearly states the jurisdiction of a Judge of The Court of Queen’s Bench of New Brunswick in relation to matters governed by The Residential Tenancies Act. The Intended Appellant submits that the legislation in question (The Residential Tenancies Act) is not by any means ambiguous, and the intention is to make abundantly clear the relationship, role and jurisdiction of Judge of The Court of Queen’s Bench of New Brunswick.

112. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment. Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.

113. The Intended Appellant will refer to and rely on the well established principle of statutory interpretation, that:

· the legislature does not intend to produce absurd consequences.

· an interpretation may be considered absurd, if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment

· a label of absurdity may be attached to interpretations which defeat the purpose of a statute

114. The following explanation of Statutory interpretation is provided at Wikipedia located at the following URL: http://en.wikipedia.org/wiki/Statutory_interpretation

Conflicts between sources of law

Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute.

Ø U.S. Supreme Court: "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254.

Ø Supreme Court of Virginia: "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).

Ø Supreme Court of Alaska: "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996);

115. An analysis of the principle in Re Rizzo & Rizzo Shoes Ltd., supra, can also be buttressed by the maxim expressio unius est exclusio alterius. The Residential Tenancies Act clearly defines the role of a judge of The Court of Queen’s Bench of New Brunswick, in relation to matters governed by the Residential Tenancies Act in section 27 of the Act. Section 27 regulates the jurisdiction of a Judge of The Court of Queen’s Bench of New Brunswick to act and in what capacity. If the legislation within the Residential Tenancies Act, intended that a Judge of The Court of Queen’s Bench of New Brunswick shall have unlimited jurisdiction already granted by Section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, then there would have been no need to include ‘conditions’ on how a judge of The Court of Queen’s Bench of New Brunswick has jurisdiction to act and in what capacity, which has the effect of excluding while limiting the already granted jurisdiction of the Court as per the maxim “expressio unius est exclusio alterius”.

116. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 provide the following excerpt:

Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. • Also termed Inclusio unius est exclusio alterius or enumeratio unius est exclusio alteriu. [Cases: Contracts 152; Statutes 195. C.J.S. Contracts §§ 307, 318–322, 327, 331; Statutes § 323.]

117. The definition of Expressio Unius Est Exclusio Alterius may be found at the following website (http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlterius.aspx ) and is reproduced below for convenience:

Expressio Unius Est Exclusio Alterius definition:

Latin: the expression of one thing is the exclusion of the other.

Sometimes referred to in short form as expressio unius.

In Rodaro, Justice, at ¶856, defined the Latin maxim expressio unius est exclusio alterius as follows:

"... a maxim of interpretation meaning that the expression of one thing is the exclusion of the other. When certain persons or things are specified in a law, contract or will, an intention to exclude all others from its operation may be inferred. In this case, the reference to the assignment to a financial institution excludes assignment to any other entity."

In Dorval, Justice Cameron expressed it as:

"... to express one thing is to exclude another."

In Transpacific, Justice Lysyk described it as follows:

"The principle ... expressio unius est exclusio alterius: the express mention of one or more things of a particular class may be regarded as impliedly excluding others."

Although the doctrine is useful in determining the extents of contracts, it is also an important principle in the construction of statutes. In her book on the topic, jurist Ruth Sullivan wrote:

"One of the so-called maxims of statutory interpretation is expressio unius est exclusio alterius: to express one thing is to exclude another.

"The maxim reflects a form of reasoning that is widespread and important in interpretation .... the a contrario argument ... negative implication ..implied exclusion ...

"An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied."

REFERENCES:

Dorval v Dorval 2006 SKCA 21

Rodaro v Royal Bank of Canada 2000 OJ 272

Sullivan, R., Driedger on the Construction of Statutes, 3rd Ed. (Toronto: Butterworths, 1994), page 168

Transpacific Tours Ltd. v. Director of Investigation & Research 25 DLR 4th 202; also at (1986) 2 WWR 34; 24 CCC 3d 103; 8 CPR 3d 325; 20 CRR 337 and 68 BCLR 32

118. The Intended Appellant believes that the above mentioned principles of statutory interpretation are persuasive, especially when considering, that when certain things are specified in a law, an intention to exclude all others from its operation may be inferred. Because of this expectation, the legislature’s failure to mention the jurisdiction of the Court other than, in a limited appeal from a decision of the Rentalsmen capacity, becomes grounds for inferring that it was deliberately exclusionary.

119. 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 Queen’s Bench of New Brunswick under subsection 27(1) specifically as the Court's power to decide a case or issue a decree only and not until after a decision has been made by a Rentalsmen.

120. The Intended Appellant asserts regarding the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 that the necessary condition on which the jurisdiction of the Court of Queen’s Bench can be engaged is under subsection 27(1); further, this may only occur after the prerequisite decision or Order of the Rentalsmen is or has been issued respectively; moreover, the Court of Queen’s Bench Trial division has no unilateral Jurisdiction to hear matters within the scope of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 which includes any matters of a Notice to Vacate a Residential Property or Termination of a Residential Tenancy.

121. The Intended Appellant submits, that because of lack of Jurisdiction {pursuant to the Maxim “Leges posteriores priores contrarias abrogant” (Subsequent laws repeal those before enacted to the contrary, a.k.a. "Last in Time") and the Maxim “Expressio Unius Est Exclusio Alterius” (The express mention of one thing excludes all others) }, this Honorable Court should not (in this matter) render a decision which would vacate the Defendant from the 29 Marshall Street and 31 Marshall Street, Residential Duplex in the City of Fredericton, as that decision is within the jurisdiction of the Rentalsmen only, consequence of the Defendant’s Tenancy since year 2005 in pursuance with the New Brunswick Residential Tenancies Act.

Hearing Rule

122. The Appellant relies, that Natural 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.

123. Black's Law Dictionary (8th ed. 2004), APPENDIX B at Page 5263

Audi alteram partem. Hear the other side. • No one should be condemned unheard.

124. The Court rendered a decision on five Motions without hearing the Appellant, 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, despite the Intended Appellants objections. It is noteworthy that even the Intended Responded Objected to not being able to submit material and evidence and be heard themselves by the Learned Trial Judge, regarding the Intended Appellants two further Motions. It seems to be a rare situation, when both Parties objected to not being provided the basics of procedural fairness, namely the Right to be Heard.

125. In Munn v. Rust, 2006 NBCA 87 (CanLII) Justice M.E.L. LARLEE, J.A. stated the following regarding a matter where the Judge was refusing to consider a parties application to cross-examine the deponents of the affidavits, and consequentially the motion judge failed to exercise the Courts discretion judicially at from paragraph 13 to through 16 as follows:

http://canlii.ca/s/to04

[13] At the hearing of Mr. Rust’s motion, the issue of Mr. Munn’s own motion, including his request to cross-examine the deponents of the affidavits filed in support of Mr. Rust’s motion, was summarily addressed in the following exchange between the motion judge and counsel for Mr. Munn:

THE COURT: […] I am not going to hear your motion, the, your counter motion to Mr. Costello’s, and I am not ordering that these people be cross-examined on their affidavit, certainly not Mr. Rust. Well, nobody, and well …

MR. MCALLISTER: May I have reasons …

THE COURT: No. I’m going to listen to Mr. Costello and you on the motion that is before me. However, one of the reasons is that if every time there was a motion before the Court, the other party then filed late another motion to counteract the first motion, there would be nothing but chaos here. You had plenty of time to file your motion. You had plenty of time and you didn’t. It’s out of time; I’m not hearing it. The end. Sit down. Sit down. Mr. Costello.

[14] I am of the view that, in refusing to consider Mr. Munn’s application to cross-examine the deponents of the affidavits, the motion judge failed to exercise her discretion judicially. Mr. Munn had a right to be heard on that issue, and procedural fairness required the motion judge to hear him. It is only after hearing Mr. Munn’s arguments in support of his request to cross-examine and any arguments made in reply, that the motion judge would have been able to judicially exercise the discretionary powers conferred by Rule 39.03.

[15] In my view, the appeals should be allowed on the common ground raised in both Notices of Appeal that allege that the motion judge erred in the exercise of the discretion conferred by Rule 39.03. It follows that the judge’s order striking out “those portions of the Plaintiff’s Statement of Claim which assert a claim against the Defendant, Edward B. Rust Jr.”, must be set aside. My disposition of this appeal requires that the matter be returned to the Court of Queen’s Bench for consideration of the issues raised by Mr. Munn’s request to cross-examine and a fresh determination of all the issues raised in the Notices of Motion.

[16] For these reasons, I would allow the appeals and order the respondent, Mr. Rust, to pay one set of costs, which I would fix at $1,500.

126. The Intended Appellant (similarly to Justice M.E.L. LARLEE, J.A. stated position) is of the view that, in refusing to consider the Intended Appellant’s two filed Motions, (filed August 9, 2011 and filed August 25, 2011 respectively) the motion judge failed to exercise his discretion judicially. The Intended Appellant had a right to be heard on those issues, and procedural fairness required the motion judge to hear him. It is only after hearing the Intended Appellant’s arguments in support of his request to the various relief which was sought and any arguments made in reply by the Intended Respondents, that the motion judge would have been able to judicially exercise the discretionary powers.

127. The following is found at duhaime.org at the following address:

http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx

Audi Alteram Partem

Latin; literally 'hear the other side'.

The maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person.

Justice Bayley wrote, in Chapel v Child:

"I know of no case in which you are to have a judicial proceeding, by which a man is to be deprived of any part of his property, without having an opportunity of being heard."

A principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard.

Habeas corpus was an early expression of the audi alteram partem principle.

In more recent years, it has been extended to include the right to receive notice of a hearing and to be given an opportunity to be represented or heard at that hearing.

The expression received this endorsement from the US Supreme Court (Caritativo):

"Audi alteram partem - hear the other side! - a demand made insistently through the centuries, is now a command, spoken with the voice of the due process clause of the 14th Amendment, against state governments, and every branch of them - executive, legislative, and judicial - whenever any individual, however lowly and unfortunate, asserts a legal claim.

"It is beside the point that the claim may turn out not to be meritorious. It is beside the point that delay in the enforcement of the law may be entailed ...

"The right to be heard somehow by someone before a claim is denied, particularly if life hangs in the balance, is far greater in importance to society, in the light of the said history of its denial, than inconvenience in the execution of the law. If this is true when mere property interests are at stake ... how much more so when the difference is between life and death?"

REFERENCES:

Caritativo v People of State of California 357 US 549 (1958)

Chapel v Child 2 Cr. & J. 579 (1832)

128. Furthermore the following principle of natural justice is found at wikipedia.org at the following address:

http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua

The other principle of natural justice is "Hear the other party" (Audi alteram partem) otherwise put "Reasonable opportunity must be given to each party, to present his side of the case".

The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed or appealed, but may be remitted for a valid re-hearing.

129. Furthermore, the Learned trial Judge made a “case management order” January 14, 2011 (the Honorable Justice Dionne did sign a “case management” Order. A copy of this Order is attached to the Affidavit of André Murray Dated Oct 28, 2011 as EXHIBIT A.), baring the Intended Appellant from filing any further evidence to be used on the Plaintiffs two scheduled Motions, past a certain date, contrary to the rules of Court, the principals of Natural Justice and procedural fairness. The Intended Appellant had a right to regular procedure regarding the Plaintiff two motions, the “case management order” created a situation where the Intended Appellants was unjustly restricted, in being able to answer the Plaintiffs Affidavit material, in due course of the proceeding.

130. Because of the “case management order” Dated January 14, 2011 the Intended Appellant was prejudiced in defending the matters of the two motions filed by the Plaintiffs, being:

(1) the Plaintiff’s Motion to validate the impugned Notice of Termination of Tenancy and

(2) the Plaintiff’s Motion to establish priority of the Plaintiffs Mortgage over the Defendants claims of Residential Tenancy and Mechanics Lien.

131. When the Intended Appellant filed a Motion:

a. to file a Post Hearing Brief and Adduce New Evidence (August 9, 2011, I André 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 9, 2011. A copy of this Motion is attached to the Affidavit of André Murray Dated Oct 28, 2011 as EXHIBIT C) and;

b. strike scandalous affidavit material from the record (August 25, 2011, I André 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 André Murray Dated Oct 28, 2011 as EXHIBIT D)

before the Court rendered a final decision on the matters, the Learned Trial Judge did refuse to hear those Motions before rendering the decision now being Appealed. It is noteworthy, that almost two month did pass, between the time of the Defendant (Intended Appellant) filing the Motions for relief and the Court rendering the October 21, 2011 decision, now being appealed.

Bias Rule

132. The 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 Defendant’s 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.

133. In R. v. S. (R.D.), [1997] 3 S.C.R. 484, the header of the Court’s decision sums up the case before the supreme Court and provide relevant insight into the reasonable apprehension of bias displayed by the actions and assertions of the Learned Trial Judge, the relevant section of R. v. S. (R.D.), [1997] 3 S.C.R. 484 is provided in the following:

(1) Consideration of Supplementary Reasons

Per curiam: The supplementary reasons issued by the Youth Court Judge after the appeal had been filed could not be taken into account in assessing whether her reasons gave rise to a reasonable apprehension of bias.

(2) Reasonable Apprehension of Bias

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The courts should be held to the highest standards of impartiality. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. The trial will be rendered unfair if the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer. Judges must be particularly sensitive to the need not only to be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin.

If actual or apprehended bias arises from a judge’s words or conduct, then the judge has exceeded his or her jurisdiction. This excess of jurisdiction can be remedied by an application to the presiding judge for disqualification if the proceedings are still underway, or by appellate review of the judge’s decision. A reasonable apprehension of bias, if it arises, colours the entire trial proceedings and cannot be cured by the correctness of the subsequent decision. The mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from the judge’s other words or conduct. However, if the judge’s words or conduct, viewed in context, do not give rise to a reasonable apprehension of bias, the findings of the judge will not be tainted, no matter how troubling the impugned words or actions may be.

The basic interests of justice require that the appellate courts, notwithstanding their deferential standard of review in examining factual determinations made by lower courts, including findings of credibility, retain some scope to review that determination given the serious and sensitive issues raised by an allegation of bias.

Impartiality can be described as a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to particular issues. Whether a decision-maker is impartial depends on whether the impugned conduct gives rise to a reasonable apprehension of bias. Actual bias need not be established because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind.

The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. The test applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic.

The requirement for neutrality does not require judges to discount their life experiences. Whether the use of references to social context is appropriate in the circumstances and whether a reasonable apprehension of bias arises from particular statements depends on the facts. A very significant difference exists between cases in which social context is used to ensure that the law evolves in keeping with changes in social reality and cases, such as this one, where social context is apparently being used to assist in determining an issue of credibility.

Consideration of whether the existence of anti-black racism in society is a proper subject for judicial notice would be inappropriate here because an intervener and not the appellant put forward the argument with respect to judicial notice.

The individualistic nature of a determination of credibility and its dependence on intangibles such as demeanour and the manner of testifying requires the judge, as trier of fact, to be particularly careful and to appear to be neutral. When making findings of credibility a judge should avoid making any comment that might suggest that the determination of credibility is based on generalizations or stereotypes rather than on the specific demonstrations of truthfulness or untrustworthiness that have come from the particular witness during the trial. At the commencement of their testimony all witnesses should be treated equally without regard to their race, religion, nationality, gender, occupation or other characteristics. It is only after an individual witness has been tested and assessed that findings of credibility can be made.

Situations where there is no evidence linking the generalization to the particular witness might leave the judge open to allegations of bias on the basis that the credibility of the individual witness was prejudged according to stereotypical generalizations. Although the particular generalization might be well-founded, reasonable and informed people may perceive that the judge has used this information as a basis for assessing credibility instead of making a genuine evaluation of the evidence of the particular witness’ credibility.

That judges should avoid making comments based on generalizations when assessing the credibility does not lead automatically to a conclusion of reasonable apprehension of bias. In some limited circumstances, the comments may be appropriate.

The argument that the trial was rendered unfair for failure to comply with “natural justice” could not be accepted. Neither the police officer nor the Crown was on trial.

Per La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ.: Judges, while they can never be neutral in the sense of being purely objective, must strive for impartiality. Their differing experiences appropriately assist in their decision-making process so long as those experiences are relevant, are not based on inappropriate stereotypes, and do not prevent a fair and just determination based on the facts in evidence.

The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The reasonable person must know and understand the judicial process, the nature of judging and the community in which the alleged crime occurred. He or she demands that judges achieve impartiality and will be properly influenced in their deliberations by their individual perspectives. Finally, the reasonable person expects judges to undertake an open-minded, carefully considered and dispassionately deliberate investigation of the complicated reality of each case before them.

Judicial inquiry into context provides the requisite background for the interpretation and the application of the law. An understanding of the context or background essential to judging may be gained from testimony from expert witnesses, from academic studies properly placed before the court, and from the judge’s personal understanding and experience of the society in which the judge lives and works. This process of enlargement is a precondition of impartiality. A reasonable person, far from being troubled by this process, would see it as an important aid to judicial impartiality.

The reasonable person approaches the question of whether there exists a reasonable apprehension of bias with a complex and contextualized understanding of the issues in the case. He or she understands the impossibility of judicial neutrality but demands judicial impartiality. This person is cognizant of the racial dynamics in the local community, and, as a member of the Canadian community, is supportive of the principles of equality. Before finding a reasonable apprehension of bias, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. Awareness of the context within which a case occurred would not constitute evidence that the judge was not approaching the case with an open mind fair to all parties; on the contrary, such awareness is consistent with the highest tradition of judicial impartiality.

(3) Application of the Test

Per La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ.: The oral reasons at issue should be read in their entirety, and the impugned passages should be construed in light of the whole of the trial proceedings and in light of all other portions of the judgment. They indicated that the Youth Court Judge approached the case with an open mind, used her experience and knowledge of the community to achieve an understanding of the reality of the case, and applied the fundamental principle of proof beyond a reasonable doubt. Her comments were based entirely on the case before her, were made after a consideration of the conflicting testimony of the two witnesses and in response to the Crown’s submissions, and were entirely supported by the evidence. In alerting herself to the racial dynamic in the case, she was simply engaging in the process of contextualized judging which was entirely proper and conducive to a fair and just resolution of the case before her. Although the Judge did not make a finding of racism, there was evidence on which such a finding could be made.

The impugned comments were not unfortunate, unnecessary, or close to the line. They reflected an entirely appropriate recognition of the facts in evidence and of the context within which this case arose -- a context known to the judge and to any well-informed member of the community.

Per Cory and Iacobucci JJ.: The Youth Court Judge conducted an acceptable review of all the evidence before making the impugned comments.

The generalized remarks about a history of racial tension between police officers and visible minorities were not linked by the evidence to the actions of the police officer here. They were worrisome and came very close to the line. Yet, however troubling when read individually, they were not made in isolation and must all be read in the context of the whole proceeding, with an awareness of all the circumstances that a reasonable observer would be deemed to know. A reasonable, informed person, aware of all the circumstances, would not conclude that they gave rise to a reasonable apprehension of bias or that they tainted her earlier findings of credibility. The high standard for a finding of reasonable apprehension of bias was not met.

Per Lamer C.J. and Sopinka and Major JJ. (dissenting): A fair trial is one that is based on the law and its outcome determined by the evidence, free of bias, real or apprehended. Evidence showing propensity has been repeatedly rejected. Trial judges must base their findings on the evidence before them. Notwithstanding the opportunity to do so, no evidence was introduced showing that this police officer was racist and that racism motivated his actions or that he lied.

The Youth Court Judge’s statements were not simply a review of the evidence and her reasons for judgment in which she was relying on her life experience. Even though a judge’s life experience is an important ingredient in the ability to understanding human behaviour, to weighing the evidence and to determining credibility, it is not a substitute for evidence. No evidence supported the conclusions that the Judge reached. Her comments fell into stereotyping the police officer. Judges, as arbiters of truth, cannot judge credibility based on irrelevant witness characteristics. All witnesses must be placed on equal footing before the court.

What the Judge actually intended by the impugned statements is irrelevant conjecture. Given the concern for both the fairness and the appearance of fairness of the trial, the absence of evidence to support the judgment is an irreparable defect.

134. As expressed in R. v. S. (R.D.), [1997] 3 S.C.R. 484, If actual or apprehended bias arises from a judge’s words or conduct, then the judge has exceeded his or her jurisdiction. The Learned Trial Judge did take judicial notice, that the Solicitor for the Plaintiffs is also the Mayor of the City of Moncton. For the Court to take judicial notice that the Solicitor for the Plaintiffs is the Mayor of the City of Moncton, adds nothing to the proceeding and makes it abundantly apparent that the Court is effected by that fact and is not therefore judging impartially. The fact that the Solicitor for the Plaintiffs is the mayor, should have nothing to do with the facts before the court, and should not have any bearing upon the decision of the Court. The Learned Trial Judge even admitted the fact, that neither party did bring this “Mayor of Moncton” fact to the Courts attention.

135. It is wrong that the Learned Trail Judge, would be considering the implications, of what it would mean to rule against the Mayor. The rights of a Mortgagee should have no connection to the celebrity, of the position of Mayor. Justice should be blind to celebrity and the fact that the Solicitor for the Plaintiffs is Mayor, had absolutely no bearing on the matters before the Court. In fact, despite the celebrity of the “Mayor” and allegations of Fraud upon the Court, absolutely no-one, except the self represented Intended Appellant and the Solicitors representing the Intended Respondents, attended the many hearing on the mater.

136. Impartiality can be described as a state of mind, in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions. The Learned Trail Judge dismissed the possibility of the Intended Appellant’s two possible motions effecting the outcome of the 5 already decided motions, without having actually heard them, and without giving the Intended Respondents, the opportunity to respond, a fact which was objected to by the Solicitor for the Intended Respondents.

137. In contrast, bias denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to particular issues. Whether a decision-maker is impartial depends on whether the impugned conduct gives rise to a reasonable apprehension of bias. Actual bias need not be established because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind. The Learned Trial Judge, did at an earlier hearing, defend the actions of the solicitor for the Plaintiffs and did claim partial responsibility, before the matter was even argued, let alone completely heard and a decision rendered (after weighing all the evidence and argument). By sharing the blame or responsibility and denoting the actions of the Solicitor for the Intended Respondent as being harmless, that claim, conspicuously benefited both “the Mayor” and the Judge in question. The Learned Trial Judge did erroneously make an unusual ex parte, without notice decision and subsequent Order, which should have been overturned, as a right pursuant to Rules of Court, Rule 37.06 Rescinding Orders Made Without Notice.

138. By announcing shared blame for the unusual ex parte, without notice decision and subsequent Order, the Learned Trial Judge did in essence excuse both his and the Mayor’s behavior. Unfortunately this vested interest creates bias on the part of the adjudicator.

139. The shear volume of irregularities in service leading up to unusual ex parte, without notice decision and subsequent Order, was not addressed by the Learned Trial judge in his decision. The fact that both the “the Mayor” and the Process Server responsible for non-service, of the subject Court Documents, did both admit to lying, of course, after the proof of the deception was presented by the Intended Respondent, to the Court for consideration, was not addressed by the Learned Trial Judge, in the subject October 21, 2011 impugned Decision.

140. Before finding a reasonable apprehension of bias, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. From the beginning of the Moncton hearing where the Intended Appellant was present, the judge maintained a viewpoint that the Intended Appellant was evading service and did not change that opinion, despite evidence to the contrary, making several comments along the way, through several hearings which revealed the same –(1) I the Intended Appellant was purposely manipulating the court when I was late, getting there (2) I the Intended Appellant must be really unlucky to have missed all these notices, or I the Intended Appellant intended the result (3) the judge said to trust him that the Court would be able to sort through what was admissible and argument and or irrelevant, so there was not need for the Intended Appellant to be concerned about the shear volume and repetitious nature of the Intended Respondents Hearsay Affidavit Claims, which were targeting the Intended Appellants creditability.

141. A fair trial is one that is based on the law and its outcome determined by the evidence, free of bias, real or apprehended. Evidence showing propensity has been repeatedly rejected. Trial judges must base their findings on the evidence before them, but in this case the Learned Trial Judge did not address the many irregularities of service which were brought to the Court Attention further, the fact that both Solicitor George H. LeBlanc and Process server Dave Daneliuk (who’s services were used several times after the fact anyway) and Gino Duguay lied in affidavit to the Court. The Learned Trial Judge even revealed that Gino lying did not matter to the Court.

142. No evidence supported many of the conclusions that the Learned Trial Judge reached. Judges, as arbiters of truth, cannot judge credibility based on irrelevant witness characteristics. All witnesses must be placed on equal footing before the court.

143. What the Judge actually intended by the impugned statements is irrelevant conjecture. Given the concern for both the fairness and the appearance of fairness of the trial, the absence of evidence to support the judgment is an irreparable defect.

144. The following case example (hereby provided for reference) illustrates the ‘setting aside of an Order’, that which (as the example illustrates) was served on the Defendant (in that example case) by way of Substituted Service. The Order of Substituted Service (in that matter) was not exactly complied with according to ‘Rules of Court’, consequentially (it would appear) the lack thereof, the disputed Order was claimed to not have come to the attention of the Defendant; consequently the Defendant did not appear at the original scheduled hearing. After review of the material, Madam Justice Humphries stated the decisions are set aside, and the proceedings will continue in the Small Claims division of the provincial court, as if default judgment had not occurred. Honorable Madam Justice Humphries states “Counsel for the petitioner argues that it is settled law that if a claimant fails to serve a defendant with an originating process in accordance with the relevant statutory requirements - including any order for substitutional service made under them - and subsequently obtains a default judgment based on the defendant’s failure to respond, then the default judgment is a nullity. The defendant in this case was therefore entitled to have the default judgment set aside as of right.”

145. In Wright v. Czinege, 2008 BCSC 1292 (CanLII), Honourable Madam Justice Humphries, regarding requirements for service, stated that requirements for service must be strictly adhered to; for that reason, service improperly effected is not service at all, from paragraph 32 through to and including paragraph 55:

[32] The petitioner submits that the issue for consideration by this court is one of the small claims Court’s jurisdiction to grant default judgment in these circumstances and frames it this way:

When a claimant relies upon an order for substitutional service to effect service of a Notice of Claim but fails to serve the Notice of Claim on a defendant in accordance with the terms of the order, can the court grant the claimant a default judgment against the defendant for failing to file a Reply to the Notice of Claim?

[33] Counsel for the petitioner argues that it is settled law that if a claimant fails to serve a defendant with an originating process in accordance with the relevant statutory requirements _ including any order for substitutional service made under them – and subsequently obtains a default judgment based on the defendant’s failure to respond, then the default judgment is a nullity. The defendant in this case was therefore entitled to have the default judgment set aside as of right. The provincial court judge’s determination that he could properly apply the discretionary tests in Miracle Feeds was in error.

………..

[41] In William v. Lake Babine Indian Band [2000] 1 C.H.L.R. 233, 30 C.P.C.(4^th) 156, which concerned an application to set aside a default judgment, this court said at paras. 26 – 40::

There seems little question that defective service of documents cannot be cured merely by the fact that such documents have found their way into the possession of the person served. Service must be effected in a manner provided for by the Rules of Court or by such other statutory provision that may apply.

…

Service improperly effected is no service.

…

Where there has been no service of the proceedings leading up to default judgment then the judgment cannot stand, for it was obtained in circumstances where the defendant was denied an opportunity to be heard. That cannot be said to be an irregularity…

[42] Although Miracle Feeds had been argued as an alternative basis on which to set aside the default judgment, the Court said it was not necessary to consider it because the default judgment was a nullity. See also Bains v. James Lorimer & Co. [1993] B.C.J. No. 767 (S.C.) (QL); Norton v. Kel Holdings Ltd. [1995] B.C.J. No. 1498 (S.C.)(QL); Carpenter v. E.B.H. Financial Services Ltd. (1998), 19 C.P.C. (4^th) 39 (S.C.); Pan Pacific Specialties Ltd. v. Shandong Machinery and Equipment I/E Corp. [1999] B.C.J. No. 2046 (S.C.) (QL).

[43] In Michalakis v. Nikolitsas (2002) BCSC 1708, default judgment was granted in small claims court at a settlement conference against a defendant who subsequently showed that he had not been served with notice of the conference. The provincial court judge refused to set aside the judgment, drawing a distinction between service of an originating process and an interlocutory process. On judicial review, this court stated that there is no such distinction. Having found that process had been taken against a litigant without notice where notice was required, it was not a case for the exercise of discretion. The judge’s refusal to set aside the default judgment was contrary to the rules of natural justice, patently unreasonable, and could not stand.

[44] I take the following principles from the cases referred to above:

1. requirements for service must be strictly adhered to; service improperly effected is no service;

2. evidence that the proceedings have come to the attention of the other party is not a substitute for proper service;

3. failure to serve proceedings results in any consequent order being nullity;

4. the opposing party is entitled to have such an order set aside as of right;

5. the discretionary considerations set out in Miracle Feeds do not apply to applications to set aside default judgments where proper service was not effected.

[45] While the detailed review of the law which was provided to me is of assistance, it must be mentioned, in fairness to the provincial court judge who declined to set aside the default judgment, that these cases were not provided to him. There was no issue taken before him with the relevance of the tests set out in Miracle Feeds to the application to set aside the default judgment.

Result

[55] Counsel for the defendant/petitioner suggested that if she were successful in her argument and the default judgment were set aside, she would acknowledge service on behalf of the defendant, file a Reply, and assist in bringing the proceedings to completion before the provincial court. In the alternative, the matter could be directed back to the small claims court for reconsideration in light of this court’s reasons.

“M.A. Humphries J.”

The Honourable Madam Justice M.A. Humphries

146. The Intended Respondents (Plaintiffs in that matter) did not perform or properly process Court document Service of the subject Court documents, as is required by the Rules of Court, this fact (and the lies of the Plaintiffs process server) was brought to the Learned trial judges attention, yet despite this, the Learned Trial Judge ruled that service was effected anyway, which is contrary to the evidence, and even the subject process servers own testimony.

147. The maxim nemo judex in causa sua debet esse - no person can judge a case in which he or she is party or in which he/she has an interest - underlies the doctrine of reasonable apprehension of bias. The 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.

Reference: R. v. R.D.S., 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484 Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ for an elaboration of this principle at paras. 109 -120, inclusive

148. First let us examine “Nemo Judex In Parte Sua”. The following is found at duhaime.org at the following address: http://www.duhaime.org/LegalDictionary/N/Nemojudexinpartesua.aspx

Nemo Judex In Parte Sua - Latin: no person can Judge a case in which he or she is party or in which he/she has an interest.

In Canada, the Supreme Court had occasion to reflect on the maxim in Brosseau v Alberta Securities Commission [1989] 1 SCR 301, Justice l'Heureux-Dubé:

"The maxim nemo judex in causa sua debet esse underlies the doctrine of reasonable apprehension of bias.…. "As a general principle, this is not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner."

149. The following is found at wikipedia.org at the following address:

http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua

Nemo iudex in causa sua (or nemo iudex in sua causa) is a Latin phrase that means, literally, no-one should be a Judge in their own cause. It is a principle of natural justice that no person can Judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none: "Justice must not only be done, but must be seen to be done".

The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed or appealed, but may be remitted for a valid re-hearing.

150. With respect to reasonable apprehension of bias, the Appellant relies on the Decision as rendered October 21, 2011. The Appellant alleges the limited statutory references demonstrate that the Learned Trial Judge, (disregarded the argument presented regarding the New Brunswick Residential Tenancy Act), instead strongly advocated a particular view concerning the purposes of the New Brunswick Property Act, and its application, thereby demonstrated “a predisposition toward a particular result such that a reasonable apprehension of bias is raised”.

151. The Court in the Decision of October 21, 2011 did claim that the Intended Respondent did provide all the argument and referenced authorities to be granted the remedies they sought. This being despite the fact that the Intended Appellant did point out to the Learned Trial Judge that the cases referenced by the Intended Respondent were set in a different legal landscape, one being where the Judges arrived on horseback because there were no cars and they had to read at night by candle light because there was no electricity. When considering Court cases around the time of confederacy, one must also consider that Banks did not exist then as they do today. These Judges were considering mortgages from private individuals who actually lent out their own money, they were protecting the interest of one man as opposed to another man which had previous agreed to performance by contract. Today’s Bank do not lend out their own money, besides that the loans are insured so there is not risk at all to the Lending institutions. Furthermore, the actual credit is in fact first created when a Mortgagor places his signature on a single party contract.

152. One cannot apply rules and consideration the Courts of Confederation meant to protect a man from loosing his own real money, to, in the alternative, today’s Financial Lending institution, which is at risk of nothing, which merely transfers credit, created by a applicants signature, from one account to another.

153. The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made a decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness, the conduct of the Court, has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. There must be circumstances from which a reasonable man would think it likely or probable that the Learned Trial Judge, would favor one side unfairly.

Written Decision October 21, 2011.

154. The Appellant asserts that the trial judge made a number of material errors in law while arriving at Decisions and in respect the Court’s exercise of discretion and further the Courts 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.

155. The learned trial judge erred in law in not keeping with the general direction as found ‘expressed’ in the New Brunswick Rules of court Rule 1.03 (2) “to secure the just, least expensive and most expeditious determination of every proceeding on its merits”.

156. Black's Law Dictionary (8th ed. 2004), defines Justice as follows:

JUSTICE

justice. 1. The fair and proper administration of laws.

157. The fair and proper administration of Justice in New Brunswick, require the Court of Queen’s Bench Trial Division to apply the Rules of Court, for a determination of every proceeding on its merits. Dismissing all of the Intended Appellants requested relief, is an undeniable prejudice to any litigant and this power should be exercised, with great reserve, and deliberation, moreover, and only after the Honorable Court having first heard in its entirety, pleadings, and arguments, relevant to the matter before the Court

158. A determination should be in keeping with the general direction contained in Rule 1.03(2) “to secure the just, least expensive and most expeditious determination of every proceeding on its merits”, Rule 1.03 (2), of the New Brunswick Rules of Court is reproduced as follows:

CITATION, APPLICATION

AND INTERPRETATION

1.03 Interpretation

1.03 (2) These rules shall be liberally construed to secure

the just, least expensive and most expeditious determination

of every proceeding on its merits.

159. The learned trial judge, committed an error in law, in not keeping with the general direction expressed in the New Brunswick Rules of court, Rule 1.03(2) “to secure the just, least expensive and most expeditious determination of every proceeding on its merits”, by not taking into consideration the prejudice caused against the Intended Appellant André Murray by not rendering a Judgment on the merits presented and had yet to be presented before the Court. The learned trial judge did not acknowledge, taking into consideration, in contemplation of the Courts decision, all the pleadings and records filed as meritorious and or substantive, by the Intended Appellant, for Orders of the Court.

160. It is my understanding that “Judgment on the merits” is a judgment made after consideration of the substantive, as distinguished from procedural issues in a case. Further to this point please find the following definition of “Merits”.

161. Black's Law Dictionary (8th ed. 2004) defines merits as the following:

MERITS

merits. 1. The elements or grounds of a claim or defense; the substantive considerations to be

taken into account in deciding a case, as opposed to extraneous or technical points, esp. of

procedure <trial on the merits>.

2.EQUITY(3) <on questions of euthanasia, the Supreme Court has

begun to concern itself with the merits as well as the law>.

162. The rules of Court 1.03 (2) states “These rules shall be liberally construed”, please find the following definition of Construed. Black's Law Dictionary (8th ed. 2004) defines Construe as follows:

CONSTRUE

construe (k<<schwa>>n-stroo), vb. To analyze and explain the meaning of (a sentence or

passage) <the court construed the language of the statute>.

163. Please find the following definition of Just from Black's Law Dictionary (8th ed. 2004) which defined Just as follows:

JUST

just,adj. Legally right; lawful; equitable

164. When viewed in this language the Rule 1.03 (2) reads: These rules shall be liberally construed (analyzed and the meaning of explained ) to secure the just (Legally right; lawful; equitable), least expensive and most expeditious determination of every proceeding on its merits (The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure).

165. Furthermore, Merriam-webster.com defines merit at the following address

(http://mw4.merriam-webster.com/dictionary/merits) as follows:

Main Entry: 1mer·it

1 a obsolete : reward or punishment due b : the qualities or actions that constitute the basis of one's deserts c : a praiseworthy quality : virtue d : character or conduct deserving reward, honor, or esteem; also : achievement

2 : spiritual credit held to be earned by performance of righteous acts and to ensure future benefits

3 a plural : the substance of a legal case apart from matters of jurisdiction, procedure, or form b : individual significance or justification

166. Furthermore, on merits is defined by legal-dictionary.com at the following address:

http://legal-dictionary.thefreedictionary.com/on+the+merits on the merits

on the merits

on the merits adj. referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome. Example: An attorney is two days late in filing a set of legal points and authorities in opposition to a motion to dismiss. Rather than dismiss the case based on this technical procedural deficiency, the judge considers the case "on the merits" as if this mistake had not occurred.

167. The Learned Trial Judge should have made a Ruling based upon the facts presented in evidence and the law applied to that evidence. The Learned Trial Judge should have decided a case "on the merits" by basing the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome.

Material misapprehension of the evidence

168. The 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.

169. Factual findings made by the Learned Trial Judge, should not be entirely accepted, Appellant will demonstrate unreasonable findings, numerous incidents of material misapprehension, tainted by a failure to consider relevant evidentiary material, The misapprehension of the evidence must go to the substance rather than to the detail. It must be Material rather than peripheral, and the errors thus identified must play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a Decision. If an Appellant can demonstrate that any Decision is based on Misapprehension of Evidence it must follow that the Appellant has not received a fair trial, and was the victim of a miscarriage of justice.

170. The Leaned Trial Judge error in law: misapprehension of the matter of the Intended Appellant evading /service, which is unreasonable, based on a Material Misapprehension of the Evidence before the Court, and or tainted by a failure to consider relevant evidence material;

171. The welfare of the people is the supreme law.

Broom's Legal Maxims (max. 1-10), also Bacon's Maxims (reg. 12)

Also

172. Maxim - In pari causa potior est condition possidentis

Everyone may keep what he has got, unless and until someone else can prove a better title.

173. The Intended Appellant supports the English dictum that a man's home is his refuge as was established in common law by the lawyer and politician Sir Edward Coke in The Institutes of the Laws of England, as early as 1628 further, that this is a fundamentally important concept, when considering the application and importance of the intention thereof the Residential Tenancy Act, as any Rulings by the Learned Trial Judge will affect all Tenants of New Brunswick, the English dictum is reproduced below:

"For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge].

The Common laws of the Realm should by no means be delayed for the law is the surest sanctuary, that a man should take, and the strongest fortress to protect the weakest of all, lex et tutissima cassis.

The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose. "

174. Further to the above principal established 1628 by lawyer and politician Sir Edward Coke; a principal the Intended Appellant comprehends, that a free society, must have liberties grounded on the importance of the sanctity, security and privacy of the individual’s home. A residential building is someone’s home whether owned free and clear, mortgaged or rented, a residential building is still someone’s home and above here within mentioned Sir Edward Coke’s, Semayne's Case, reflects and embodies sanctity principals, referred to as, a Man’s Home is his Castle, which must equally apply to all residential properties.

175. The Learned Trial Judge did misapprehend that two or more Residential Leaseholds do run concurrently so that the beginning of one tenancy contract is the beginning of the Tenancy Term, and if there are several leases which are signed afterward, then they run unbroken from the initial lease to the most current, to calculate the actual term of the tenancy. The Learned Trail Judge did erroneously state that the intended Appellant was not in fact a Five Year Tenant when the impugned Notice of Termination of Tenancy was served.

176. The Learned Trail judge did misapprehend that the alleged Notice of Termination of tenancy was served by any person with the actual capacity to terminate the Intended Appellants Tenancy. Further the Learned Trail judge did not address the many irregularities present in the alleged Notice of Termination of Tenancy which rendered same invalid, without legal effect and unenforceable.

177. In summation Intended Appellant verily believes to be true, that, the Notice of Termination of Tenancy and Lease dated May 20, 2010:

a) is not Dated by each signatory;

b) the capacity of any of the signatories is not indicated;

c) the printed names of two of the signatories to the document are not provided and the signatures are illegible;

d) is null and void because, none of the signing parties claim to be the person known as Landlord;

e) Is not valid, for a ‘Year to Year' Tenancy, a NOTICE OF TERMINATION OF TENANCY AND LEASE as Dated May 20, 2010, was not served by Landlord at least three months before the expiration of any such year to be effective on the last day of that year. According to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1)(a), this June 3, 2010 at 4:35 P.M. Service date is outside the time limits prescribed by the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1)(a), regarding the 29 Marshall Street and 31 Marshall Street premises which are let from year to year and therefore the Notice of Termination of Tenancy and Lease, Dated May 20, 2010 has no legal effect on the Rights of Tenant André Murray who is sheltered in Law by The Residential Tenancies Act, of New Brunswick;

f) The Intended Appellant asserts, that the Learned Trial Judge, should not Validate the impugned Notice of Termination of Tenancy and Lease dated May 20, 2010, as requested by the Plaintiffs, because the subject impugned Notice of Termination of Tenancy and Lease dated May 20, 2010 does not comply with the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1.1) (b), section 24(1.1) (e), and section 24(1.1) (f) and consequentially, the notice is in fact void according to the New Brunswick, Residential Tenancies Act inter alia.

g) Without the basic acknowledgement of the Authenticity, validity or legal effect of the subject “Lease”, there is no “Lease” to terminate, consequentially the Notice of Termination of Tenancy and Lease, makes no sense and in effect is non-sense;

h) Has no force of law because Landlord, in capacity as Landlord, or an agent for Landlord did not identify themselves as according to The Residential Tenancies Act, S.N.B. 1975, c. R-10.2 section 24(1.1);

i) The Defendant asserts that a Notice of Termination must be dated and signed by the “the Landlord” person, (the legally constructed person,) that legal subject or substance of which the rights and duties of “the Landlord” are attributes, or an agent or representative of the “landlord” person, which has the capacity to terminate (on behalf of the “landlord” person) the Tenancy Contract with the “Tenant” person, (the legally constructed person,) that legal subject or substance of which, the rights and duties of “the Tenant” are attributes;

178. The Intended Appellant verily believes to be true, that the Landlord Betty Rose Danielski desires to deny acknowledgment of her Landlord capacity and legal obligations of being Landlord; as such is the case Landlord capacity has not currently been confirmed and any a Termination of Tenancy of Defendant Tenant André Murray according to the terms of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2. can only be properly terminated according to law, namely the Residential Tenancies Act, S.N.B. 1975, c. R-10.2. 24(1)(a), 24(1.1) and as such the tenancy of André Murray continues.

179. Further to the point previously mentioned above, Section 2 and Section 2a of the Residential Tenancies Act states the following:

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

other Act, agreement or waiver to the contrary; and

180. To be absolutely clear and for the benefit of the Court, the following definition: ‘notwithstanding’:

http://www.duhaime.org/LegalDictionary/N/Notwithstanding.aspx

Notwithstanding

In 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 as stated.

181. Additionally, the following definition: ‘notwithstanding’ is from Black's Law Dictionary (8th ed. 2004),at Page 3378 as follows:

NOTWITHSTANDING

notwithstanding, prep. Despite; in spite of <notwithstanding the conditions listed above, the landlord can terminate the lease if the tenant defaults>.

182. Intended Appellant comprehends The Residential Tenancies Act, S.N.B. 1975, c. R-10.2, as above quoted hereafter, “notwithstanding the Landlord and Tenant Act or other Act, agreement or waiver to the contrary” further, as this relates to the subject of the alluded Notice of Termination of Tenancy and Lease Dated May 20, 2010, would cause an effect of such a Notice would best qualify as being only a agreement (by the Plaintiffs between the Plaintiffs). Therefore Defendant André Murray’s Residential Lease remains intact pursuant to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, despite the Plaintiffs carefully crafted agreement of intentions to the contrary.

183. Intendance Appellant can contemplate of no other Right considered more basic and essential, which more deserves this Courts protection and favour, as Security of Tenure and in effect security of one’s home. Furthermore, it is Defendant André Murray’s understanding that the English dictum “a man's home is his refuge” was established as common law by the lawyer and politician Sir Edward Coke in The Institutes of the Laws of England, as early as 1628:

"For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge]."

184. Which enshrines the importance of the relationship between a man and his home, historically, as in common law, that which the Courts have time and again ruled in favour of protecting that of ‘the home front’, of the common man.

185. Please note Defendant André Murray is a Long Term Tenant according to the Residential Tenancies Act requiring different Termination of Tenancy then a ‘Year to Year’ Tenant addressed further on in Section 15 Long Term Tenancy of the Defendant’s submission.

Long Term Tenancy

186. Following April 01, 2010, according to the previous April 01, 2005 and the current (Dated September 1, 2005) Year to Year Lease period, the Defendant became a Long-term Tenant according to Residential Tenancies Act, S.N.B. 1975, c. R-10.2, and effectively the termination of tenancy conditions changed substantially.

187. The Residential Tenancies Act, S.N.B. 1975, c. R-10.2, provides that a tenancy agreement is capable of taking effect at law or in equity from the date fixed for commencement of the tenancy without the requirement of any entry onto the premises and according to the Defendants earliest lease of March 2005 allowing for pre entry renovation et cetera, furthermore, since all Tenancy is measured in time and runs concurrently with any new, and or previously signed lease, in regards to the same 29 and 31 Marshall Street premises, that date of the commencement of the Defendant’s tenancy was March 01, 2005.

188. Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 10(2) is provided below:

10(2) A tenancy agreement is capable of taking effect at

law or in equity from the date fixed for commencement of

the tenancy without the requirement of any entry onto the

premises.

189. After April 2010, according to the concurrent Lease period, the Defendant became a Long-term Tenant according to Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24.2, because the 29 – 31 Marshall Street Duplex premises have been occupied by the same tenant (the Defendant) for five consecutive years or more and effectively the termination of tenancy conditions changed substantially after April 2010, which will now be addressed.

190. The Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24.2 is provided below

LONG TERM TENANCIES

1997, c.13, s.4.

Application of sections 24.3 to 24.7

24.2 Sections 24.3 to 24.7 apply to all tenancies of premises,

other than mobile home sites, that have been occupied

by the same tenant for five consecutive years or more.

191. Since the Intended Appellant’s Tenancy is regarded by the Residential Tenancies Act, as in the category defined as a Long Term Tenancy, Termination of Tenancy rules are substantially different from a Year to Year Tenancy.

192. The relative section of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1.1), is reproduced below:

24(1.1) A notice of termination served by a landlord or tenant under this Act

(a) shall be in writing,

(b) if served by the landlord, shall set out the name of the tenant,

(d) shall state the effective date of the notice,

(e) shall state the reason for the termination, if otherwise required by this Act to do so, and

(f) shall be dated and signed by the landlord or an agent or representative of the landlord or by the tenant, as the case may be.

[Emphasis added]

193. The most relevant section (at this point), of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, is section 24(1.1), regarding long term tenancies, is (e), which is that a notice of termination served by a landlord under this Act shall state the reason for the termination, if otherwise required by this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2) to do so. Following March 2010, a notice of termination served upon Tenant André Murray by a landlord under this Residential Tenancies Act, S.N.B. 1975, c. R-10.2 shall (must) state the reason for the termination as required by this Act to do so

194. The subject Notice of Termination of Tenancy and Lease Dated May 20, 2010, is conspicuously absent the reason for the termination as required by this Residential Tenancies Act, S.N.B. 1975, c. R-10.2., section 24(1.1).

195. Further, the new relative sections, of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, to be applied for long term tenancies, are section 24.2 to 24.7, which are reproduced below as follows:

Application of sections 24.3 to 24.7

24.2 Sections 24.3 to 24.7 apply to all tenancies of premises,

other than mobile home sites, that have been occupied

by the same tenant for five consecutive years or more.

Termination of tenancy

24.6(1) Notwithstanding subsection 24(1), a notice of

termination of a tenancy of premises described in section

24.2 is to be served by the landlord at least three

months before the expiration of any month to be effective

on the last day of that month.

Limitation on landlord’s right to terminate

1997, c.13, s.4.

24.7(1) Where a tenant has occupied premises for five

consecutive years or more, the landlord shall not serve a

notice of termination of the tenancy unless

(a) the landlord intends in good faith that the premises

will be occupied by the landlord, the landlord’s spouse,

a child of the landlord, a parent of the landlord or a parent

of the landlord’s spouse,

(b) the premises occupied by the tenant will be used

other than as residential premises,

(c) the premises will be renovated to such an extent

that vacant possession is necessary to perform the renovation,

(d) the tenancy arises out of an employment relationship

between the tenant and the landlord in which the

employment relates to the maintenance or management

of the premises, or both, and the employment relationship

is terminated.

24.7(2) A landlord who serves a notice of termination of

a tenancy under subsection (1) shall state the reason for

the termination in the notice of termination.

24.7(9) If, before the commencement of this subsection,

a notice of termination is served by a landlord on a tenant

who has occupied the premises for five consecutive years

or more before the notice of termination is served, but the

termination is not effective until after the commencement

of this subsection, the notice is void unless it has been

served in accordance with subsection 24.6(1), the reason

for the termination is one of those listed in subsection (1)

and the reason has been stated in the notice.

196. It is made clear by section 24.7(1) of The New Brunswick Residential Tenancies Act, that where a tenant (the Defendant) has occupied premises for five consecutive years or more, the landlord shall not serve a notice of termination of the tenancy unless the Landlord provides of the following reasons for doing so:

(a) the landlord intends in good faith that the premises

will be occupied by the landlord, the landlord’s spouse,

a child of the landlord, a parent of the landlord or a parent

of the landlord’s spouse,

(b) the premises occupied by the tenant will be used

other than as residential premises,

(c) the premises will be renovated to such an extent

that vacant possession is necessary to perform the renovation,

(d) the tenancy arises out of an employment relationship

between the tenant and the landlord in which the

employment relates to the maintenance or management

of the premises, or both, and the employment relationship

is terminated.

197. Please note that none of the above indicated reasons of The New Brunswick Residential Tenancies Act 24.7(1) (a), (b), (c) or (d) were provided on the impugned NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 2010, furthermore, section 24.7(2) the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, was, as well, not complied with by the Plaintiffs, which states “A landlord who serves a notice of termination of a tenancy under subsection (1) shall state the reason for the termination in the notice of termination”. Therefore, the subject impugned NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 2010, served by the Plaintiffs, does not apply to the Defendant’s lease status and the Defendant’s Lease may continue uninterrupted.

198. Intended Appellant asserts, that this Court, should not Validate (as requested by the Plaintiffs) the impugned NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 2010, as served by the Plaintiffs because the subject NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 201 does not comply with the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1.1), section 24.7(1) (a), (b), (c) or (d), section 24.7(2) and the notice is in fact void according to the New Brunswick, Residential Tenancies Act.

199. The Defendant verily believes to be true, that, Betty Rose Danielski in her capacity as Landlord, or an agent for Landlord Betty Rose Danielski, did not send a notice of termination, served by or in the capacity of ‘Landlord’ according to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 section 24(1.1).

200. The Learned Trial Judge, did fail to recognize that the Intended Appellant was a long term tenant at the time of the alleged service of the subject Termination of Tenancy, therefore the subject Termination of Tenancy was insufficient to in fact terminate the Intended Appellants Lease, so the lease in fact survived.

201. The Learned Trial Judge, did fail to recognize that the Intended Appellant was and has still continued to pay rent to the Landlord Betty Rose Danielski. The Acceptance of rent by the landlord, for residential premises is a acceptance of the Landlord relationship. The Landlord cannot claim to terminate the Tenancy and yet at the same time continue to collect rent at the first of every month.

Property Act verses the Residential Tenancies Act

202. The distinguishing section of the Residential Tenancies Act is Section 2 as reproduced below:

Residential Tenancies Act, S.N.B. 1975, c. R-10.2

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; and

(b) arising or entered into before or after this Act

comes into force.

203. Black's Law Dictionary (8th ed. 2004), at Page 3378, defines: NOTWITHSTANDING As follows:

NOTWITHSTANDING

notwithstanding, prep. Despite; in spite of

204. Merriam-webster Dictionary defines: NOTWITHSTANDING, from the following URL (http://www.merriam-webster.com/dictionary/notwithstanding) As follows:

Definition of NOTWITHSTANDING

: despite <notwithstanding their inexperience, they were an immediate success> —often used after its object <the motion passed, our objection notwithstanding>

205. The section 1(1) ‘Interpretation’ of the Residential Tenancies act provides the following meanings:

The Residential Tenancies Act, S.N.B. 1975, c. R-10.2. ,

INTERPRETATION, 1(1) In this Act,

“tenancy agreement” means an agreement whereby a person is granted

the right to possess premises in consideration of payment of rent.

“premises” means premises used for residential purposes,

(a) and includes

(i) any house, dwelling, mobile home, apartment, flat, tenement or similar place that is occupied or may be occupied by an individual as a residence,

(ii) any land leased as a site for a mobile home used for residential purposes, whether or not the landlord also leases that mobile home to the tenant, and

(iii) a room in a boarding house or lodging house,

(b) but does not include

(i) premises occupied for business or agricultural purposes with living accommodation attached under a single tenancy agreement,

(ii) living accommodations located in a building used in part for non-residential purposes if the occupancy of the living accommodations is conditional upon the occupant continuing to be an employee of or perform services related to a business carried out in the building,

(iii) living accommodations occupied as a vacation home for a seasonal or temporary period,

(iv) living accommodations where the tenant is required to share a bathroom or kitchen facility or both with the landlord and where the landlord resides in the building in which the living accommodations are located,

(v) living accommodations provided in a tourist establishment as defined under the Tourism Development Act, 2008, if a person resides in the living accommodations for less than ninety consecutive days,

(vi) living accommodations provided by an educational institution to its students where the living accommodations do not have their own self-contained bathroom and kitchen facilities,

(vii) living accommodations provided in a nursing home as defined in the Nursing Homes Act,

(viii) living accommodations located in a community placement resource as defined in section 23 of the Family Services Act,

(ix) living accommodations occupied by a person for penal, correctional, rehabilitative or therapeutic purposes or for the purpose of receiving care,

(x) living accommodations provided by a religious institution,

(xi) living accommodations provided in a hospital facility operated under the Hospital Act,

(xii) living accommodations provided in a psychiatric facility as defined in the Mental Health Act,

(xiii) short-term living accommodations provided as emergency shelter,

(xiv) living accommodations provided in a youth hostel, and

(xv) any other accommodations or classes of accommodations prescribed by regulation;

206. Section 2 of the Residential Tenancies Act, when read in this interpretive language reads as follows:

2 Except where otherwise specifically provided for in this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2 ), this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2 ) applies to tenancies (a person is granted the right to possess premises in consideration of payment of rent) of residential premises (any house, dwelling, mobile home, apartment, flat, tenement or similar place that is occupied or may be occupied by an individual as a residence) and tenancy agreements (means an agreement whereby a person is granted the right to possess premises in consideration of payment of rent) respecting such premises (any house, dwelling, mobile home, apartment, flat, tenement or similar place that is occupied or may be occupied by an individual as a residence),

(a) notwithstanding (Despite; in spite of) the Landlord and Tenant Act or any other Act (including the Property Act, R.S.N.B. 1973, c. P-19), agreement (Mortgage Agreement / Promissory Note) or waiver to the contrary (Contract), arising or entered into before or after this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2) comes into force.

207. Furthermore, regarding obligations with respect to the tenancies, Section 13 (7),(8), and (9) of the Residential Tenancies Act, reads as follows:

13(7) Where a landlord transfers his estate in the real

property of which the demised premises form all or a portion

(a) the transferee assumes all of the obligations with

respect to the tenancy; and

(b) no action lies against the transferor for any obligation

with respect to the tenancy;

arising after notification of the transfer takes place in accordance

with subsection (8).

13(8) Where a landlord transfers his estate in the real

property of which the demised premises form all or a portion

he shall notify the rentalsman and the tenant of such

transfer in the form prescribed by regulation within seven

days after such transfer.

13(9) Where pursuant to subsection (7) a transferee assumes

the obligations with respect to a tenancy, he is a

landlord for all purposes of this Act.

13(9.1) Subsections (7), (8) and (9) do not apply where

the landlord transfers an estate in the property to a mortgagee

solely for the purpose of mortgaging the real property

of which the premises form all or a portion.

208. Black's Law Dictionary (8th ed. 2004) at Page 2794, defines LANDLORD As follows:

landlord. 1. At common law, the feudal lord who retained the fee of the land. — Sometimes shortened to lord.

2. One who leases real property to another. — Also termed (in sense 2) lessor. [Cases: Landlord and Tenant 1. C.J.S. Landlord and Tenant §§ 1, 2(1, 2), 6(1), 7, 202(5).]

absentee landlord. A landlord who does not live on the leased premises — and who usu. lives far away. — Also termed absentee management.

209. Black's Law Dictionary (8th ed. 2004), at Page 4670, defines TRANSFEREE As follows:

TRANSFEREE

transferee. One to whom a property interest is conveyed.

210. Black's Law Dictionary (8th ed. 2004), at Page 4671, defines TRANSFEROR As follows:

TRANSFEROR

transferor. One who conveys an interest in property.

211. Black's Law Dictionary (8th ed. 2004), at Page 1307, defines DEMISE As follows:

DEMISE

demise (di-mIz), n.

1. The conveyance of an estate, usu. for a term of years; a lease <the demise of the land for one year>.

2. The instrument by which such a conveyance is accomplished<the demise set forth the terms of the transfer>.

3. The passing of property by descent or bequest<a testator's demise of $100,000 to charity>.

4. The death of a person or (figuratively) of a thing <the corporation's untimely demise>. See DEATH. — Abbr. dem. — demise,vb.

DEMISED PREMISES

demised premises. See PREMISES.

212. Black's Law Dictionary (8th ed. 2004), at Page 3741, defines PREMISES, As follows:

PREMISES

premises (prem-<<schwa>>-siz).

1. Matters (usu. preliminary facts or statements) previously referred to in the same instrument <wherefore, premises considered, the plaintiff prays for the following relief>.

2. The part of a deed that describes the land being conveyed, as well as naming the parties and identifying relevant facts or explaining the reasons for the deed.

3. A house or building, along with its grounds <smoking is not allowed on these premises>. “Premises (= a house or building) has a curious history in legal usage. Originally, in the sense of things mentioned previously, it denoted the part of a deed that sets forth the names of the grantor and grantee, as well as the things granted and the consideration. Then, through hypallage in the early 18th century, it was extended to refer to the subject of a conveyance or bequest as specified in the premises of the deed. Finally, it was extended to refer to a house or building along with its grounds. In short, someone who says, ‘No alcohol is allowed on these premises,’ is engaging unconsciously in a popularized legal technicality.” Bryan A. Garner, A Dictionary of Modern Legal Usage 685 (2d ed. 1995).

demised premises. Leased property. — Also termed premises demised.

213. Black's Law Dictionary (8th ed. 2004), at Page 4588 defines TENANT

As follows:

TENANT

tenant,n.1. One who holds or possesses lands or tenements by any kind of right or title. See TENANCY. [Cases: Landlord and Tenant 1. C.J.S. Landlord and Tenant §§ 1, 2(1, 2), 6(1), 7, 202(5).]

further at Page 4590

2. One who pays rent for the temporary use and occupation of another's land under a lease or similar arrangement. See LESSEE. 3.Archaic. The defendant in a real action (the plaintiff being called a demandant). See real action under ACTION(4).

214. legal-dictionary provides the following definition of assume, form the following URL (http://legal-dictionary.thefreedictionary.com/assumes) as follows:

assume v. to take over the liability for a debt on a promissory note, which is often done by the buyer of real property which has a secured debt upon it. Example: Bob Buyer pays part of the price of a piece of real property by taking over the debt that Sally Seller had on the property. However, usually the original owner to whom Sally owes the debt must agree to the assumption. (See: assumption)

Associated concepts: assume a debt, assume a lease, assume a mortgage, assume responsibility, assumed name, assumed risk

215. Black's Law Dictionary (8th ed. 2004), at Page 3204 defines MORTGAGEE As follows:

MORTGAGEE

mortgagee (mor-g<<schwa>>-jee). One to whom property is mortgaged; the mortgage creditor, or lender. — Also termed mortgage-holder. [Cases: Mortgages 23. C.J.S. Mortgages §§ 73–75, 77.]

mortgagee in possession. A mortgagee who takes control of mortgaged land by agreement with the mortgagor, usu. upon default of the loan secured by the mortgage. [Cases: Mortgages 187. C.J.S. Mortgages §§ 57, 288.]

216. Section 13(7), (8), (9) and (9.1) of the Residential Tenancies Act, when read in this above provided interpretive language, including the above definitions, reads as follows:

13(7) Where a landlord (One who leases real property to another) transfers his estate in the real property of which the demised premises (Leased property) form all or a portion

(a) the transferee (One to whom a property interest is conveyed) assumes all of the obligations with respect to the tenancy (means an agreement whereby a person is granted the right to possess premises in consideration of payment of rent); and

(b) no action lies against the transferor (One who conveys an interest in property) for any obligation with respect to the tenancy (means an agreement whereby a person is granted the right to possess premises in consideration of payment of rent); arising after notification of the transfer takes place in accordance with subsection (8).

13(8) Where a landlord (One who leases real property to another) transfers his estate in the real property of which the demised premises (Leased property) form all or a portion he shall notify the rentalsman and the tenant (One who pays rent for the temporary use and occupation of another's land under a lease or similar arrangement) of such transfer in the form prescribed by regulation within seven days after such transfer.

13(9) Where pursuant to subsection (7) a transferee (One to whom a property interest is conveyed) assumes (accepts responsibility of) the obligations with respect to a tenancy (means an agreement whereby a person is granted the right to possess premises in consideration of payment of rent), he is a landlord (One who leases real property to another) for all purposes of this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2).

13(9.1) Subsections (7), (8) and (9) do not apply where the landlord (One who leases real property to another) transfers an estate in the property to a mortgagee (One to whom property is mortgaged) solely for the purpose of mortgaging (Convey (a property) to a creditor as security on a loan) the real property of which the premises (A house or building, along with its grounds) form all or a portion.

217. The Defendant comprehends that sections 13(7), (8), (9) and (9.1) of The Residential Tenancies Act, when read in the above referenced interpretive language, including the above definitions, clearly express that, the authors of The Residential Tenancies Act, undoubtedly contemplated the possible ramifications of a residential leasehold tenancy at a mortgaged property therefore, the authors clearly intended to and clearly have included legislation which would not exempt a Mortgagee from the full effect of the Residential Tenancies Act.

218. Leaving nothing merely implied, The Residential Tenancies Act addresses the act of Mortgaging the Property confirming that assignment of a Mortgage does not transfer the Title and responsibilities of the Landlord on to the Mortgagee, instead and quite to the contrary, pursuant to the Residential Tenancies Act, the Mortgaged property is still considered to be under the care and control of the Landlord of that “Mortgaged” property to whom does possess the actual ownership Title.

219. The Residential Tenancies Act clearly transfers the obligations of a Landlord (transferor) uninterrupted onto the Transferee in a Real-estate transaction, even a Real-estate transaction pursuant to the Property Act, R.S.N.B. 1973, c. P-19.

220. Furthermore, the Property Act, R.S.N.B. 1973, c. P-19, section 47(1) clearly provides that a Mortgagee exercising the power of sale, transfers that property subject to all estates, interests and rights that have priority to the Mortgage, priority rights such as those entrenched within the Residential Tenancies Act and assigned to the Tenant.

221. The relative section 47(1), of the Property Act, R.S.N.B. 1973, c. P-19 is provided below.

Property Act, R.S.N.B. 1973, c. P-19

47(1) A mortgagee exercising the power of sale conferred

by section 44 may convey the property sold, for such

estate and interest therein as is the subject of the mortgage,

freed from all estate, interests and rights to which the

mortgage has priority, but subject to all estates, interests

and rights that have priority to the mortgage.

222. Black's Law Dictionary (8th ed. 2004), at Page 4470 provides the following definition: ‘SUBJECT OF A RIGHT’

SUBJECT OF A RIGHT

subject of a right. 1. The owner of a right; the person in whom a legal right is vested.

2.OBJECT OF A RIGHT

223. Black's Law Dictionary (8th ed. 2004), at page 4468 to 4469 provides the following definition: ‘SUBJECT’:

SUBJECT

subject,adj. Referred to above; having relevance to the current discussion < the subject property was then sold to Smith>.

subject,n.1. One who owes allegiance to a sovereign and is governed by that sovereign's laws <the monarchy's subjects>.

“Speaking generally, we may say that the terms subject and citizen are synonymous. Subjects and citizens are alike those whose relation to the state is personal and not merely territorial, permanent and not merely temporary. This equivalent, however, is not absolute. For in the first place, the term subject is commonly limited to monarchical forms of government, while the term citizen is more specially applicable in the case of republics. A British subject becomes by naturalisation a citizen of the United States of America or of France. In the second place, the term citizen brings into prominence the rights and privileges of the status, rather than its correlative obligations, while the reverse is the case with the term subject. Finally it is to be noticed that the term subject is capable of a different and wider application, in which it includes all members of the body politic, whether they are citizens (i.e., subjects stricto sensu) or resident aliens. All such persons are subjects, all being subject to the power of the state and to its jurisdiction, and as owing to it, at least temporarily, fidelity and obedience.” John Salmond, Jurisprudence 133 (Glanville L. Williams ed., 10th ed. 1947).

liege subject. See natural-born subject.

natural-born subject. A person born within the dominion of a monarchy, esp. England. — Also termed liege subject. Cf. NATIONAL.

2. The matter of concern over which something is created <the subject of the statute>. —

Also termed (in sense 2) subject matter.

SUBJECTION

subjection. 1. The act of subjecting someone to something <their subjection to torture was unconscionable>.

2. The condition of a subject in a monarchy; the obligations surrounding such a person <a subject, wherever residing, owes fidelity and obedience to the Crown, while an alien may be released at will from all such ties of subjection>.

3. The condition of being subject, exposed, or liable; liability <the defendants' subjection to the plaintiffs became clear shortly after the trial began>. — Also termed (in sense 3) liability; susceptibility.

224. Bouvier’s Law Dictionary, Published 1856, defined: “SUBJECT” which is found at the following URL

(http://legal-dictionary.thefreedictionary.com/subject)

as follows:

SUBJECT, contracts. The thing which is the object of an agreement. This term is used in the laws of Scotland.

SUBJECT, persons, government. An individual member of a nation, who is subject to the laws; this term is used in contradistinction to citizen, which is applied to the same individual when considering his political rights.
2. In monarchical governments, by subject is meant one who owes permanent allegiance to the monarch. Vide Body politic; Greenl. Ev. Sec. 286; Phil. & Am. on Ev. 732, n. 1.

Additionally “subject” (Conditional), adjective contingent, dependent on circumstances, depending upon, inciient to, incidental, provisional, relying upon, subiectus, subordinate, uncertain
Associated concepts: subject to approval, subject to defeaaance, subject to review

225. The legal-dictionary.com provides the following definition: “subject to” which is found at the following URL

(http://legal-dictionary.thefreedictionary.com/subject+to)

as follows:

subject to adj. referring to the acquisition of title to real property upon which there is an existing mortgage or deed of trust when the new owner agrees to take title with the responsibility to continue to make the payments on the promissory note secured by the mortgage or deed of trust. Thus, the new owner (grantee) buys the property "subject to" secured debt. However, should the new owner fail to pay, the original debtor will be liable for the payment, but the holder of the mortgage or beneficiary of the deed of trust may foreclose and the buyer could thus lose title. This differs from the new title holder "assuming" the mortgage or deed of trust by a written transfer of the obligation. Such a transfer must be approved by the lender, since the new owner's credit may or may not be as strong as the original owner/borrower. (See: mortgage, deed of trust, assumption)

226. Legal-explanations.com provides the following definition: “Subject To” which is found at the following URL

(http://www.legal-explanations.com/definitions/subject-to.htm)

as follows:

Subject To

(adj).When a property without clear title or encumbrance is transferred to a person, with his knowledge and consent about the liabilities attached to the property such acquisition of the property is called an acquisition subject to the liabilities attached to the property. It may also require the consent of the lender. The lien or mortgage right owned by the lender is not effected by such transfer as far as the property is concerned

227. Siam-legal.com, provides the following definition: “subject to” which is found at the following URL

(http://www.siam-legal.com/realestate/thailand-real-estate-terms-S.php)

as follows:

subject to
Conditional upon, for example, a buyer may agree to purchase a property subject to the existing title holder paying off all existing liens on it within particular period.

228. Encarta.msn.com, provides the following definition: “subject” URL (http://encarta.msn.com/dictionary_/subject.html)

as follows:

4. person ruled by another: somebody who is ruled by a king, queen, or other authority

adjective Definition:

1. prone to: likely to be affected by something

areas subject to flooding

a child subject to mood swings

2. ruled: under the control of somebody or something such as a ruler or a law, and obliged to obey

a subject nation

not subject to the laws that apply in this country

229. Merriam-webster.com, provides the following definitions: “SUBJECT” which is found at the following URL

(http://www.merriam-webster.com/dictionary/subject%5B2%5D?show=0&t=1283709531)

as follows:

2subject

adj

Definition of SUBJECT

1: owing obedience or allegiance to the power or dominion of another

2a : suffering a particular liability or exposure <subject to temptation>

b : having a tendency or inclination : prone <subject to colds>

3: contingent on or under the influence of some later action <the plan is subject to discussion>

230. Merriam-webster.com, provides the following definitions: “SUBJECT” which is found at the following URL

(http://www.merriam-webster.com/dictionary/subject)

as follows:

¹sub·ject

noun \ˈsəb-jikt, -(ˌ)jekt\

Definition of SUBJECT

1: one that is placed under authority or control: as

a : vassal

b (1) : one subject to a monarch and governed by the monarch's law

(2) : one who lives in the territory of, enjoys the protection of, and owes allegiance to a sovereign power or state

231. Merriam-webster.com, provides the following definitions: “SUBJECT” which is found at the following URL

(http://www.merriam-webster.com/dictionary/subject%5B3%5D)

as follows:

³sub·ject

vt \səb-ˈjekt, ˈsəb-ˌjekt\

Definition of SUBJECT

1a: to bring under control or dominion : subjugate

b : to make (as oneself) amenable to the discipline and control of a superior

2: to make liable: predispose

3: to cause or force to undergo or endure (something unpleasant, inconvenient, or trying) <was subjected to constant verbal abuse>

— sub·jec·tion\səb-ˈjek-shən\ noun

232. Black's Law Dictionary (8th ed. 2004), at Page 3779 provides the following definitions of ‘PRIORITY’ as follows:

PRIORITY

priority.

1. The status of being earlier in time or higher in degree or rank; precedence.

2.Commercial law. An established right to such precedence; esp., a creditor's right to have a claim paid before other creditors of the same debtor receive payment. [Cases: Secured Transactions 138–145.C.J.S. Secured Transactions §§ 88, 90–102, 106–107, 118.]

3. The doctrine that, as between two courts, jurisdiction should be accorded the court in which proceedings are first begun. [Cases: Courts 475, 493, 514; Federal Courts 1145. C.J.S. Courts §§ 188, 211, 224.]

233. Merriam-webster.com, provides the following definitions: ‘free’

which is found at the following URL

http://www.merriam-webster.com/dictionary/freed+

as follows:

2 free

verb

freed free·ing

Definition of FREE

transitive verb

1 a : to cause to be free

b : to relieve or rid of what restrains, confines, restricts, or embarrasses <free a person from debt> —often used with up <free up space on the hard drive>

234. When the Property Act, R.S.N.B. 1973, c. P-19, section 47(1) is read with the above referenced definition included for interpretation, the following is the result.

A mortgagee exercising the power of sale conferred by section 44 (section 44 of the Property Act) may convey the property (Mortgage) sold (at auction), for such estate and interest therein as is the subject (having relevance to the current discussion) of the mortgage (prior written agreement) freed (to relieve or rid of what restrains, confines, restricts) from all estates, interests and rights to which the mortgage has priority (The status of being higher in degree or rank, pursuant to the Property Act ), but subject (exposed, or liable/ to bring under control or dominion) to all estates, interests and rights (subject of a right - The owner of a right; the person in whom a legal right is vested, in this case a Tenant, one who holds or possesses lands or tenements by any kind of right or title.) that have priority (The status of being higher in degree or rank, specifically a Tenant’s rights, pursuant to the Residential Tenancies Act, notwithstanding/ despite any other Act), to the mortgage.

235. When the Property Act, R.S.N.B. 1973, c. P-19, section 47(1) is read with the above referenced definition included for interpretation, the meaning of section 47(1) is made clear, reproduced below is the original format of section 47(1) for Honorable Court’s convenience:

Property Act, R.S.N.B. 1973, c. P-19

47(1) A mortgagee exercising the power of sale conferred

by section 44 may convey the property sold, for such

estate and interest therein as is the subject of the mortgage,

freed from all estate, interests and rights to which the

mortgage has priority, but subject to all estates, interests

and rights that have priority to the mortgage.

236. Further on this point of interpretation, Defendant notes that The Property Act section 47(1) makes a clear distinction between the conditions of “freed from” and comparatively its opposite or antonym “subject to”.

237. Synonym.com, provides the following Antonym of “free”

which is found at the following URL

http://www.synonym.com/antonym/freed/

as follows:

Antonym of freed

Antonyms of verb free

Sense 1:

free, liberate, release, unloose, unloosen, loose
Antonym of confine (Sense 5)
=>confine, detain

238. When the Property Act section 47(1) is read with the above referenced antonyms, the following is understood:

47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed (released) from all estate, interests and rights to which the mortgage has priority, but subject (confined) to all estates, interests and rights that have priority to the mortgage.

239. Synonym.com, provides the following Antonym of “subject” which is found at the following URL

http://www.synonym.com/antonym/subject%20/

as follows:

Antonym of subject

Sense 3:

subject

INDIRECT (VIA affected) -> unaffected

240. When the Property Act section 47(1) is read with the above referenced antonyms, the following is understood:

47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from (unaffected by) all estate, interests and rights to which the mortgage has priority, but subject to (affected by) all estates, interests and rights that have priority to the mortgage.

241. As demonstrated and comprehended by the Defendant, the Property Act, R.S.N.B. 1973, c. P-19, section 47(1), when interpreted with the above provided referenced definitions, clearly provides that a Mortgagee exercising Power of Sale, (a provision within the New Brunswick Property Act.), therefore, transfers such property subject to or confined to all estates, interests and rights and or is subject to such rights as are notwithstanding the New Brunswick Property Act., such as those within the Residential Tenancies Act; the Defendant claims shelter of the law found within the Residential Tenancies Act, Laws affording rights which are notwithstanding the New Brunswick Property Act., therefore, causing all relative encumbrances/obligations attributed to the Tenant must travel uninterrupted, remain intact and transferable to a Tenant, from the seller to the purchaser of the Property.

242. For further clarification, let us review The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 which states:

243. The very helpful explanations of Interpretations of Statutes, is provided in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, by Justice Iacobucci J. at paragraph 21 and 27, which can be found at the following URL: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii837/1998canlii837.html

21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

27 In my opinion, the consequences or effects which result from the Court of Appeal's interpretation of ss. 40 and 40a of the ESA are incompatible with both the object of the Act and with the object of the termination and severance pay provisions themselves. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).

244. When examining the New Brunswick Residential Tenancies Act we can easily understand the scheme of the Act, the object of the Act, and the intention of Parliament can be comprehended to enshrine the Law with capacity and mandate for protection of the deeply cherished community value of the sanctity of the home. This well known, well recognized, established principle of Right of the sanctity of the home, devised for the protection of individual security, applies to all homes of a man or woman and is the factor that makes Residential Tenancies so unique, in reflecting these very principals.

245. The Intended Appelant will refer to and rely on the well established principle of statutory interpretation, that:

the legislature does not intend to produce absurd consequences.

an interpretation may be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment

a label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.

246. The Intended Apellant argues that a label of absurdity must be attached to interpretations of the Residential Tenancies Act, that, which may defeat the purpose of a statute or render some aspect of it pointless or futile. The New Brunswick Residential Tenancies Act., includes the defining terms of application of the Act to be, NOTWITHSTANDING which includes Landlord and Tenant Act and or any other Act, agreement or waiver to the contrary, therefore, the situation is made abundantly clear and behoves the reader of the New Brunswick Residential Tenancies Act. to avoid the absurdity of an interpretation of the Residential Tenancies Act, to somehow, not be applicable to Mortgaged premises sold at Auction pursuant to the Property Act.

247. 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;”

248. Except where otherwise specifically provided for in this Act “Residential Tenancies Act”, this Act “Residential Tenancies Act” applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding (in spite of, even if, without regard to or impediment by other things as stated) the Landlord and Tenant Act or any other Act (the Property Act), agreement or waiver to the contrary.

249. The Learned Trial Judge, did fail to recognize that the superior standing of the Residential Tenancy Act of New Brunswick over the claims made by the Plaintiffs, regarding the rights granted pursuant to the Property Act of New Brunswick.

Discretion

250. Black's Law Dictionary (8th ed. 2004) defines Abuse of Discretion as follows:

abuse of discretion.

1. An adjudicator's failure to exercise sound, reasonable, and legal decision-making.

2. An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.

251. The learned Trial Judge erred in law, in irregularly applying the Courts Discretion. The Appellant contends, The Learned Trial judge did display Abuse of Discretion. The Learned Trial Judge instead rendered a decision which is unsupported by the evidence and clearly on a erroneous finding of a material fact. A court must avoid to substitute its view on issues of propriety of purpose and the relevance of the factors considered.

252. The Appellant contends the Learned Trial Judge’s decision lacked the degree of “justification, transparency and intelligibility” required by the unreasonableness standard of review and considered a unreasonable decision.

Reference: In Canada Revenue Agency v. Telfer, 2009 FCA 23 (CanLII), Justice EVANS J.A, reviewed the unreasonableness standard of review, from Paragraph 29 through to 42.

Reference: In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 Justice Iacobucci J., stated regarding exercise of discretion being unreasonable from Paragraph 57 through to and including paragraph 68:

“An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.”

253. The 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 Appellant’s argument, further, the Learned Trial Judge failed to review and understand the relevant evidence. The law has recognized for more than a century that a COURT OF APPEAL would interfere with the exercise of the discretion of a trial judge when "the trial judge was manifestly wrong" or "substantial injustice" or "serious injustice would result", which the Plaintiff claims is evident in this case.

254. Manifest Abuse of Discretion is demonstrated when the Court’s Discretionary Decision is unsupported by the evidence choosing instead to arrive at erroneous finding of a material fact, the Appellant claims that the Learned Trail Judge has demonstrated Manifest Abuse of Discretion, in not granting the Appellant’s Rescinding Orders Motion, and instead rendered a decision in favor of the Intended Respondent in every Motion before the Court. In these circumstances and it would be a disservice to the administration of justice to allow this decision to stand.

255. The 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 Courts conclusions, such as in this case.

COSTS

256. As the 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 Judge’s discretion in this matter was affected by error in principle and or by misapprehension of the facts.

257. Appellant (as Defendant) provided argument that Costs should be awarded to the Appellant. It follows that lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, lay litigants, by foregoing remunerative activity, incurred ‘an opportunity cost’. It is self evident the Appellant did expend considerable time and energy preparing for the Hearings.

258. 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.

259. Manifest Abuse of Discretion is when the Court’s 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 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.

Leave to appeal shall be granted as follows:

Rule 62.03(4) (c) the judge hearing the motion considers that the appeal involves matters of such importance that leave to appeal should be granted.

260. The decision being appealed would be setting a dangerous precedent in the New Brunswick Courts favoring Mortgagees profit interests (investment interests) over those of the Rights of Residential Tenancies as should be guaranteed by the Residential Tenancy Act and the Courts of New Brunswick.

261. The importance of such a precedent should be reviewed as a right, because the consequences are that from this decision forward, Tenants rights would be unjustly subservient to corporate profits and because of resjudicata this position would be unduly challenging to overturn, by any other party in the future.

262. People should not be thrown out of their homes unjustly so that a corporation may make a profit, Jurisprudence to this point, has protected the sanctity of the home, to allow this decision to stand unchallenged by the Judicial mechanism, of which the purpose is to review erroneous Court decisions would be a travesty of Justice and a disservice to the administration of Justice.

Should the Court grant leave to Appeal?

263. The Intended Appellant verily believes for all the reasons stated above that this Court should grant Leave to Appeal.

Stay of Proceedings

264. In J.D. Irving, Limited v. Hughes, 2009 CanLII 25267 (NB CA) Justice M.E.L. LARLEE, J.A. granted Stay of proceeding while simultaneously granting leave to appeal as follows: http://canlii.ca/s/10tdf

[1] The motion for leave to appeal is granted pursuant to Rule 62.26 of the Rules of Court and a stay of proceedings is granted. Costs of this motion will be dealt with on disposition of the appeal.

265. The Intended Appellant request of this Court the same remedy, that a stay of proceedings be granted until the final resolution of the rights of the Parties after the completion of the requested Appeal Hearing.

266. In Steldon Enterprises Ltd. v. Moncton (City), 2000 CanLII 10923 (NB CA) Justice J. ERNEST DRAPEAU, J.A. (now Chief Justice of New Brunswick) stated the following regarding granting a stay of proceeding at paragraph 5 as follows : http://canlii.ca/s/3urr

5 In Allsco Building Products Ltd. v. United Food and Commercial Workers International Union, Local 1288P (1998), 207 N.B.R. (2d) 103, at p. 112, my colleague, Turnbull J.A., reiterated the time-honoured rule that, in exercising the discretion conferred by Rule 62.26 of the Rules 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 formulated in Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, and RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311: (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 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.

267. Test part (1) Does the appeal pose a serious challenge to the decision in the court below? The first part of the test requires an applicant to show that there is a serious question to be appealed. The Courts role is simply to determine whether the grounds raises a serious issue for appeal and, for the purpose of this motion, is the Court satisfied that it does?

268. The Intended Appellant argues that this case, if left unchallenged on Appeal, will set a dangerous precedent in New Brunswick Courts, which will effect not only the Intended Appellants interest, but will establish, from now on that Financial institutions, namely Mortgagee’s have a higher legal standing in New Brunswick compared to Residential Tenants, who should be, protected by the New Brunswick Residential Tenancy Act (pursuant to the intention of the drafters). This precedent will be backwards and opposite to the other provinces of Canada and the “intention of purpose”, of the Residential Tenancies Act, S.N.B. 1975, c. R.-10.2. There exists no case similar to this one in the established jurisprudence of New Brunswick. The Intended Appellant suggests setting a precedent falls under the category of ground which raises a serious issue for appeal. Without the stay being granted the Intended Appellant will be evicted from a Residence which, (if the Appeal is granted) would have been unnecessary, unneeded traumatic experience which completely disrupts a man’s life. The financial interest and profits of a corporation should not be held by the Courts of New Brunswick to be more important than the sanctity of a man’s home. The Courts across Canada have come to recognize this principle the sanctity of a man’s home (the man’s home is his castle) and it would be a step backward fort the Courts of New Brunswick to be bound by such a unjust decision.

269. This decision being appealed should not stand because of reasonable apprehension of Bias displayed by the Court, misapprehension of the evidence and argument presented to the Court and further the Intended Appellant was not heard, which violates the principles of Natural Justice, rules of procedural fairness and a man's common law right to be heard.

270. (2) Will the applicant suffer irreparable harm without a stay? The second part of the test requires the applicant to show that the Intended Appellant would suffer "irreparable harm" if the stay is not granted. Irreparable harm means "harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.": see MacDonald at 341.

(1) If the Plaintiffs enforce their Order to vacate the Intended Appellant, the Intended Appellant will loose a $80,000 lien on the Marshall Street property, the remedy which is attached to the tangible property, will be forever lost and would not be able to be regained, no money can replace this unique legal standing and position. Further, if the Intended Appellant loses the lien on the 29 and 31 Marshall Street property, there is little likelyhood of ever relocating Betty Rose Danielski, who may or may not still be located in Toronto Ontario, for the Intended Appellant to attempt to find remedy, and be made whole by the Courts.

(2) The irreparable harm which the Intended Appellant will suffer will be a loss of confidence and belief in the credibility in the Justice system.

(3) The irreparable harm which the Intended Appellant will suffer will be a loss of a unique legal position and legal standing as a Tenant in possession of a allegedly Mortgaged (liened) property.

Maxim - Possession is nine-tenths of the law.

and

Maxim - Longa possessio parit jus possidendi, et tollit actionem vero domino. Long possession produces the right of possession, and takes away from the true owner his action. Co. Litt. 110.

(4) The irreparable harm which the Intended Appellant will suffer will be a loss of a unique legal position regarding the continuous possession (more than 6 years) of the Marshall street Property and the unique legal standing as a Tenant in long possession of a property. “Long possession produces the right of possession, and takes away from the true owner his action”, this unique legal position could not be compensated for in cost, nor could this unique legal position be replaced in any reasonable fashion, at some future time, once lost. Once gone this long right of possession is lost, it is irreplaceably lost forever, unless time once again accumulates, a fact and right which cannot be compensated for in costs.

271. (3) Does the balance of convenience favour the order sought? The third part of the test is known as the balance of convenience test and is defined as "a determination of which of the two parties will suffer the greater harm from the granting or refusal of [a stay], pending a decision on the merits.": The third test, known as the balance of convenience or inconvenience, was defined by Justice Beetz, J. in Metropolitan Stores at page 129 where he said:

… [convenience] is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.

272. If the Court grants the stay the status quo will remain the same as it is now, and has remained for the last 2 years. The Intended Appellant may remain at the property until the matter and the rights of the parties are conclusively decided upon by the Court of Appeal. The Intended Respondent would be in a position of waiting, like they have been for the last 2 years, for a few short months further, until the matter is actually settled, before that time they could not do anything constructive with the property anyway, pending Appeal. The Intended Responded Royal Bank of Canada is one of the most profitable Corporation in Canada, and a short delay in establishing if this decision will stand will not cause Intended Responded Royal Bank of Canada any real difficulty. Let’s be realistic The Royal Bank of Canada, also known as RBC Financial Group has 1,762 branches or offices, 5,033 banking machines in Canada, the United States and internationally, had reportedly 72,126 employees in 2010, had $ 726,206,000,000 in reported assets in 2010 and finally generated $ 36,026,000,000 in reported revenue in 2010 as reported by Canadian Business Resource at (http://www.cbr.ca/CompanyListing.aspx?CompanyID=2878). The Intended Responded Royal Bank of Canada can wait without difficulty until this matter is resolved.

273. If the Court does not grant the stay the greatest harm will be suffered by the Intended Appellant, who will have to vacate the property, experiencing great disruption and distraction to his life and added unnecessary difficulty in attempting to Appeal this Matter as a self represented litigant, while simultaneously trying to relocate and reestablish himself. The Intended Respondent would be in a position of not being able to do anything with the property anyways, pending the outcome of the Appeal Hearing, which the Court of Appeal may ultimately instruct the Intended Appellant to move right back in to 29 and 31 Marshall Street, Fredericton New Brunswick (which the Intended Appellant would of course do, despite any great hardship in doing so), because to enforce Intended Appellant’s rights as a Tenant in New Brunswick, is the right thing to do.

274. The Intended Appellant does encourage and believe this Court may decide it is just and equitable to grant the provisional remedy of a stay of proceedings while he Appeal proceedings are pending.

Cost Orders in favor of self-represented litigants

1. The Defendant offers that after due consideration, this Honorable Court may conclude similarly as in McNichol v. Co-operators General Insurance Company, 2006, supra, that the case before this Honorable Court is one that calls for the exercise of the Honorable Courts discretion under Rule 59.01 in a manner favorable to the self-represented Defendant.

2. For convenience of this Honorable Court reproduced below Rule 59.01, of the Rules of Court as follows:

59.01 Authority of the Court

(1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid.

3. As similarly stated above in McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may make the similar observations and consider before awarding costs with regard to the blatantly frivolous, irresponsible and callous behavior, of Plaintiffs in this matter, further, the nature of the countless irregularities in Court Document Process Service contributing to the improper and inaccurate evidence provided by counsel for the Plaintiffs at the subject October 20, 2009 Hearing, before this very Court.

4. Following the lead of the above Court in McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may find it appropriate to Order the Plaintiffs to pay costs throughout, which may be similarly fixed at $5,000, in addition to all reasonable disbursements.

5. As similarly stated in Fong, et al v. Chan, et al, 1999, supra, “Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to work ordinarily done by a lawyer retained for litigation, and that as a result, self represented litigants incurred an ‘opportunity cost’ by foregoing remunerative activity” such as the self represented Defendant before this Court. It is abundantly clear that the self represented Defendant in this matter devoted copious amounts of time over many months of his life and exhaustive effort to present interesting and thought-provoking legal argument ordinarily expected of a lawyer, further is evidenced by the quality and voluminous material presented for consideration to this Honorable Court.

6. As is well established by the Courts lay litigants may recover costs, including counsel fees; this is a clear trend of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

7. As stated in Fong, et al v. Chan, et al, 1999, supra, as a matter of principle, it seems difficult to justify a categorical rule denying recovery of costs by self-represented litigants.

8. As stated above in Fong, et al v. Chan, et al, 1999, supra, paragraph 22 “modern cost rules are designed to foster three fundamental purposes:

(1) to indemnify successful litigants for the cost of litigation;

(2) to encourage settlements; and

(3) to discourage and sanction inappropriate behaviour by litigants.”

Remaining consistent with the above here within paragraph trial judges may use their discretion to award costs to self-represented litigants.

9. Self-represented lawyers (members of Law Society) are entitled to indemnity on the ‘time is money’ or ‘opportunity cost’ rationale and it is difficult to appreciate why the ‘opportunity cost’ rationale should not be applicable to self-represented litigants, such as the Defendant in this matter, before this Honorable Court.

10. Self-represented litigants must possess skills for which they customarily are remunerated on their regular work week basis, and if the law is prepared to compensate lawyers for ‘loss of time’ when devoting their efforts to their own cause, the same entitlement should extend to self-represented lay litigants who are able to demonstrate the same loss.

11. Costs may be awarded to those lay litigants who can demonstrate devoted time and effort to do work, which ordinarily would have been done by a lawyer retained for same litigation, further, it is consistent that lay litigants incurred an ‘opportunity cost’ by foregoing their usual remunerative activity; awarding of additional Costs are a useful tool of the Court to encourage settlements and or to discourage or sanction inappropriate behavior, as the case may be.

12. Having considered the here within above provided arguments for cost, this Honorable Court may find it appropriate to Order the Plaintiffs to pay costs throughout, in addition to all reasonable disbursements.

ALL OF THIS respectfully submitted at the City of Fredericton, New Brunswick, this . . . . day of . . . . . . . . . . . . . . . , 2011.

______________________________

name

INTENDED APPELLANT

PART VI – ORDERS SOUGHT

(d) a concise statement of the relief sought by the party.

a) That pursuant to Rule 62.03(5) this Honorable Court grants Leave to Appeal the decision, of Justice ................ Dated ....

b) In the alternative that the Court finds the Order or decision under appeal is a final Order, therefore this Honorable Court grants Leave to Appeal the decision, of Justice ................ Dated ....

c) That pursuant to Rule 62.26 of the Rules of Court, this Court does grant a stay of proceedings, until the matter regarding the decision being appealed, is finally decided upon by the Court of Appeal.

f) This Court does grant an extension of time to issue and serve a Notice of Appeal,

g) That the INTENDED RESPONDENT pay costs of the within Motion,

h) Such further and other relief as to this Honorable Court may appear just.

SCHEDULE “A”
LISTED AUTHORITIES

SCHEDULE “B”

RELEVANT PROVISIONS OF STATUTES OR REGULATIONS

Below are links to Post which I have created regarding Hearing before Court of Appeal of New Brunswick:

November 17, 2011 I did attend a Court of Appeal Motion for Leave to Appeal Hearing.

http://justicedonedirtcheap.blogspot.com/2011/11/leave-to-appeal-hearing.html

Court of Appeal

Procedural Fairness and or Natural Justice

The following article is a good introduction into the principle which govern Natural Justice:

NATURAL JUSTICE

Decision

Disposition

REFERENCES:

Subject To

1sub·ject

Definition of SUBJECT

3sub·ject

Definition of SUBJECT

¹sub·ject

³sub·ject