Brief/Prepared Oral presentation accepted by Court. Leave to Appeal to the COURT OF APPEAL OF NEW BRUNSWICK

7/30/2019 Brief/Prepared Oral presentation accepted by Court. Leave to Appeal to the COURT OF APPEAL OF NEW BRUNSWICK

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1. Is this decision a final order?

2. Is there is a conflicting decision by another judge or court upon aquestion involved in the proposed appeal and, in the opinion of the judgehearing the motion, it is desirable that leave to appeal be granted?

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

4. Does the judge hearing the motion consider that the appeal involvesmatters 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?

7. Should the Court give special instruction regarding the AppellantsSubmission?

8. Should the Court give instruction on filing of the Appeal Books?

9. Should the Court recognize the Tenancy of Intended Appellant AndrMurray?

1.FINAL ORDER OR DECISION

1. The nature of the decision, Dated October 21, 2011, by the Honorable Zol R.

Dionne, finally disposes of, or substantially decides the rights of the parties, and it ought

to be treated as a final order or decision.

2. The intended consequence of the Action filed by the Intended Respondents was to

gain legal vacant possession of the 29 and 31 Marshall Street Property, Fredericton New

Brunswick. The decision being Appealed, dated October 21, 2011 accomplishes this

intended goal.

3. The Intended Respondents original claims (found in the Notice of Action and

Statement of Claim Dated September 18, 2009) of the Defendant wrongfully converting

the property, occupying the property without permission or consent, unjust enrichment,


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conversion of property are now rendered moot, and actionable, because of the Tenancy

Agreements / leases made, and rental payments for same, continuing to this day, between

the Intended Appellant and the owner of the subject Marshall Street Property, void those

claims. The evidence of the leases and bank deposits made to the Landlords account for

over six years as well as the Intended Appellant physically being at the premises for the

time period in question is ample evidence of those facts.

4. The Intended Appellant has been fighting to enforce the Rights of Tenants and the

security of tenure, which should be an obvious right to all Tenants of New Brunswick.

The Decision being appealed, Dated October 21, 2011, as made finally disposes of, or

substantially decides the rights of the parties, being, namely the Tenancy Rights of the

Intended Appellant and the alleged Mortgagee rights of the Intended Respondent.

5. In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.) Honorable

Justice J. ERNEST DRAPEAU, J.A. stated Courts the approach to the determination of

the threshold question of whether an order or decision is interlocutory or final:

.. If the nature of the order or decision as made finally disposes of, orsubstantially decides the rights of the parties, it ought to be treatedas a final order or decision. If it does not, and the merits of the caseremain to be determined, it is an interlocutory order or decision.

6. The Royal Bank of Canada would in effect have received the relief they where

seeking as expressed in the Original Notice of Action and Statement of Claim, vacant

possession of the 29 and 31 Marshal street property. Once the Defendant is removed from

the property, and vacant possession is achieved by the Plaintiffs, there would be no

longer a reason to continue on with the litigation claims, since their stated desired remedy

was achieved.

7. There is no longer any merits of the case remaining to be determined, therefore,

the decision being appealed is not an interlocutory order or decision.

8. At paragraph 110 of the subject October 21, 2011 decision, the Court referenced the

Intended Respondents own arguments regarding the doctrine of Res Judicata applying to


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a decision of the Learned Trial judge baring rehearing, let alone relitigation of a decision

vacating the Intended Appellant.

9. Black's Law Dictionary provides the definition of Functus Officio as [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.

10. The Court of Queens Bench Trial division would be without jurisdiction, further

authority or legal competence to rule between the parties regarding matters of:

Application of The Residential Tenancy Act of New Brunswick,

Application of The Property Act of New Brunswick,

Subject Termination of Tenancy

Rescinding Orders made without Notice per October 20, 2009 decision

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, in the five subject Motions referred to in the

October 21, 2011 decision now being appealed

11. Black's Law Dictionary defines Res Judicata as [Latin a thing adjudicated]

1. An issue that has been definitively settled by judicial decision.

2. An affirmative defense barring the same parties from litigating a second lawsuiton the same claim, or any other claim arising from the same transaction or seriesof transactions and that could have been but was not raised in the first suit.

12. The Intended Respondents have already claimed the Doctrine of res Judicata, tobar the Intended Appellants claims from being heard, the three listed essential elements

of Res Judicata present in this case are:

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

Dated October 21, 2011, by the Honorable Zol R. Dionne regarding the five motions

considered, which the Defendant seeks leave to appeal presently;


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(2) a final judgment on the merits, the decision as it stands is final on the matters,

unless overturned upon Appeal ( the only Court with the Jurisdiction to do so) after

consideration by the Honourable Court of Appeal, furthermore, Honorable Zol R.

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

(3) the involvement of the same parties, or parties in privity with the original parties

such as in this case of the ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body

corporate, and ANDR MURRAY.

13. The Learned Trial Judge did at paragraph 110 114 of the Courts decision of

October 21, 2011, point to the fact that because of Rules of Court Rue 37.06, the

applicable conditions of that rule cause a limit or a reserve to the application of the

Doctrine of res judicata. It is an obvious fact that the Intended Appellant could not relyon Rules of Court Rules 37.06 this time around, therefore the courts own decision is

further argument, in the Intended Appellants favour, that the Doctrine of Res Judicata

does apply now in the present situation, therefore the decisions on the five motions is a

final one.

14. The Intended Appellant Defendant would be barred by res judicata and functus

officio, therefore it would not be possible to have the Court of Queens Bench Trial

Division hear anything further regarding the Rights of Residential Tenants in New

Brunswick, as they applied to the Intended Appellant, (Defendant in that matter) Andr

Murray and the 29 and 31 Marshall Street Property, Fredericton New Brunswick, the

impugned claims by the Royal Bank of Canada as Mortgagee, and 501376 N.B. Ltd., a

body corporate, as tentative purchaser of a Mortgagee Deed, regarding the incidents as

decided upon October 21, 2011. The five Motions were essentially, interalia, regarding:

a. Plaintiffs Motion: The numbered company 501376 N.B. Ltd., a body

corporate withdrawing from the litigation;

b. Plaintiffs Motion: Striking the (Intended Appellant in this matter)

Defendants Affidavit material from the record regarding claims of Fraud

upon the Court, inter alia;


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c. Defendants Motion: Rescinding Orders made without Notice, made on

October 20, 2009 and strike portions of the Plaintiffs statement of claim

and summarily dismiss the Plaintiffs claims for lack of jurisdiction, inter

alia;

d. Plaintiffs Motion: Ruling on the Property Act, RSNB 1973, c P-19 verses

the Residential Tenancies Act, SNB 1975, c R-10.2 and lack of

jurisdiction of the Court, inter alia;

e. Plaintiffs Motion: Ruling on impugned Notice of Termination of Tenancy

and lack of jurisdiction of the Court, inter alia.

15. This same principles or rules of res judicata and functus officio would bar the

Court of Queens Bench Trial Division from hearing the Intended Appellants two furthermotions scheduled for February 23, 2012, because of estopple, the Court could not

possibly grant the relief requested, which is intended to directly affect the courts

conclusions, regarding the 5 motions (at the time undecided upon) but now already

decided upon. The Defendant was seeking a Stay of Proceedings until the Court

considered accepting New Evidence and a Post Hearing brief further, the Defendant was

seeking to strike prejudicial affidavit material from the record before the Court rendered a

decision on the five Motions (now being Appealed). This was necessary evidently

because without the Court Striking the requested frivolous and vexatious Affidavit

material from the record, considering a post hearing brief and considering the new

Evidence, the Learned Trial Judge did in fact render a decision against the Defendant in

that matter on all remedies sought.

16. 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 Zol R.

Dionne is interlocutory; the Intended Appellant Andr Murray shall seek to provide

further legal reason to grant leave to appeal as follows.

Leave to Appeal required


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17. In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.) 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 shallnot be granted unless:

(a) there is a conflicting decision by another judge orcourt upon a question involved in the proposedappeal and, in the opinion of the judge hearing themotion, it is desirable that leave to appeal begranted,

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

(c) the judge hearing the motion considers that the appealinvolves matters of such importance that leave toappeal should be granted.

[20] Rule 62.03(4) cannot be interpreted in isolation. Asnoted, its meaning and effect must be ascertained having regard to the Rulesof Court as a whole. Rules 1.03(2) and 62.21(6) play an important role in theinterpretative exercise required here. Rule 1.03(2) directs courts to liberallyconstrue the rules to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits. Rule 62.21(6) provides that

[a]n interlocutory order or decision from which there has been no appealshall not operate to prevent the Court of Appeal from rendering any decisionor making any order.

[23] Factors such as the relative importance of theinterlocutory order or decision in the litigation process and the repercussionsof granting leave come into play in the exercise of that residual discretion. AsCameron J.A. noted in Business Development Bank of Canada v. WhiteOttenheimer & Baker, at para. 2, the matter always involves the weighingof interference, by the appeal process, with the timely administration ofjustice against the interest of the appellant in having the matter resolved

immediately.

[24] Justice McLellans decision appears to be quitesignificant in terms of its likely influence on the conduct of the action in thecase at hand. As well, the action is not entered for trial; in fact, the discoveryprocess is not completed. Finally, there is no evidence that an order grantingleave to appeal might cause prejudice of a serious nature to any party. The


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cumulative effect of these considerations leads me to conclude that leaveshould be granted pursuant to Rule 62.03(4)(b).

Disposition

[25] The motion for leave to appeal is allowed, withcosts of $750 payable by the plaintiff, S. Bransfield Limited, to thedefendant, Gordon MacArthur.

18. Granting the requested stay of proceeding and leave to appeal would preserve the

status quo and maintain the parties positions a they now stand, until the final resolution of

the matter on Appeal.

19. May it please this Honorable Court Intended Appellant will now attempt to address

each of the criteria, required, that Leave to Appeal to be granted, as follows:

2.A) Leave to appeal shall be granted as follows:

Rule 62.03(4) (a) there is a conflicting decision by another judge orcourt upon a question involved in the proposed appeal and, in theopinion of the judge hearing the motion, it is desirable that leave toappeal be granted,

20. As far as the Intended Appellant knows there is no other conflicting decision of aCourt 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.

21. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII), Justice

SCHWARTZ J. provided a decision as follows:


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VII Decision

[37] This court is satisfied that the purpose of the amendment and theintention of the Manitoba legislature were to bring evictions of tenants bymortgagees 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 clearnessdescribed by Philp J.A. quoting LHeureux-Dub at paragraph 20 as follows:

[38] I note that the Director argues that the current rule of statutoryinterpretation does not require irresistible clearness but rather the words of thestatute are to be read in their entire context and in their grammatical andordinary 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. inRizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27where he delivered the judgment of an unanimous supreme court.

[39] Further the Director submits that the language of section 6 ofTheInterpretation 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 andmust be given the fair, large and liberal interpretation that best ensures theattainment of its objects.

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

[41] Having reviewed and considered its entire context, and applying thewords of theR.T.A.,and in particular the amended definition of landlord, in theirgrammatical and ordinary sense, harmoniously, with the scheme of that Act, itsobject and the intention of the Manitoba legislature, this Court must refuse theorder of possession sought. The Mortgagee is bound to obtain possession inaccordance with theR.T.A.

[42] Argument was presented by the Mortgagee on the practical difficultiesof requiring a mortgagee to comply with theR.T.A. Those arguments werecountered 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. Theyare policy issues properly brought before an appropriate legislative committeewhen amendments to theActare considered.

IX Final Result


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

22. The Intended Appellant does believe that this Court, upon hearing the motion, will

believe, that it is desirable that leave to appeal be granted.

3.B) Leave to appeal shall be granted as follows:

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

23. 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.

24. Had the Learned trial judge answered that question in the negative then the Intended

appellant would have been successful on the Motion to rescind, and striking the Plaintiffs

Claims would have terminated the Action further, the Intended Respondents motions

regarding Termination of Tenancy and Priority of Mortgage would have been rendered

moot.

25. 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 .

26. 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 tothe court to have the action stayed or dismissed on the ground that

(a) the court does not have jurisdiction to try the action,


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27. Further the Intended Appellant Andr Murray was seeking an order Under Rule

22.01 (3) of the Rules of Court, that, the Court may grant summary judgment against the

Plaintiff on the ground that there is no merit to the action, or to one or more claims

therein, or to part of any such claim, an order for summary judgment against the

Plaintiffs striking out the 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.

28. Intended Appellant Andr 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, Rule23.01(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, .

29. Intended Appellant Andr Murray sought an order, pursuant to Rule 27.09 (c) 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 tocircumvent the jurisdiction of the Rentalsmen, and the authority granted the Rentalsmen

pursuant to New Brunswick Residential Tenancy Act.

30. 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 Defendants refusaland / 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.


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31. Intended Appellant posed the question By what authority do the Plaintiffs claim to

be able to evict the Residential Tenant Andr 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 Andr

Murray falls squarely under the authority of the New Brunswick Residential Tenancy Act

and the jurisdiction of the Rentalsmen..

32. The Defendant had several leases for the Marshal Street Property, deemed by the

Court to be valid, therefore the Defendant could not have wrongfully converted theproperty or occupied the property without permission or consent. Those claims are

invalid, based on erroneous information and now moot.

33. The Residential Tenancies Act S.N.B. 1975, c. R-10.2, section 2 states Except

where otherwise specifically provided for inthis Act, this Act applies to tenancies of

residential premisesand tenancy agreements respecting such premises, (a)

notwithstanding the Landlord and Tenant Act orany other Act, agreement or waiver to

the contrary; The Judicature Act is not listed as an exception, anywhere in the

Residential Tenancies Act S.N.B. 1975, c. R-10.2,. Specifically provided for, in The

Residential Tenancies Act, is the exclusive jurisdiction of the Court of Queens Bench,

over the adjudication, and only in a special appeal capacity, of any dispute arising only

after a Rentalsmen has made a decision, which the Landlord or Tenant wishes to have

reviewed.

34. 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.


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35. 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 .

36. 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 statutoryinterpretation does not require irresistible clearness but rather the words

of the statute are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act,the object of the Act, and the intention of Parliament. That is thelanguage used by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27 where he delivered the judgmentof an unanimous supreme court.

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

Rule of liberal interpretation

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

37. 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


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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 bedeemed 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.

38. 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 argumentdrawn from authority is the strongest in law.

39. According to Residential Tenancies Act section 26(2) A rentalsman, in addition to

carrying out any other duties or exercising any other powers under this Act or the

regulations, including section 26(2) (l) shall act under the provisions of this Act with

respect to the termination of tenancies. The responsibility of termination of residential

tenancies is the duty of the Rentalsman, and the most appropriate action for the Plaintiffs

to have taken, to terminate the tenancy of The Intended Appellant (Defendant in that

matter), Andr Murray, would have been through the appropriate steps overseen by the

Rentalsmen.

40. 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.

41. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 specifically

designates authority to a Judge of The Court of Queens Bench of New Brunswick under

subsection 27(1) to review and set aside the decision, order, notice of termination,


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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.


designates authority to a Judge of The Court of Queens Bench of New Brunswick undersubsection 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 Queens Bench of New Brunswick

under subsection 27(1) is clearly that of a special Justice of a Appeal capacity.

43. Black's Law Dictionary (8th ed. 2004) , Page 2490 defined Jurisdiction as follows:

2. A court's power to decide a case or issue a decree


designates authority or jurisdiction to a Judge of The Court of Queens Bench of New

Brunswick under subsection 27(1) specifically as the Court's power to decide a case or

issue a decree after a decision has been made by made by a Rentalsmen.

45. The Intended Appellant (Defendant in that matter), asserts that the necessary

condition on which the jurisdiction of the Court of Queens Bench can be engaged is

under subsection 27(1) of the New Brunswick Residential Tenancies Act S.N.B. 1975, c.

R-10.2 is only after the prerequisite decision or Order of the Rentalsmen is issued,

otherwise the Court of Queens Bench Trial division has no Jurisdiction to hear matters

regarding the New 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.

Jurisdiction

46. 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


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The Court of QueensBench of New Brunswick, have in relation to Residential

Tenancies Act.

47. In determining if this Honorable Court has Jurisdiction to hear matters regarding

Residential Tenancies Act, may require the interpretation of two statues namely:

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

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

48. 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.

49. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the

following excerpt:

Leges posteriores priores contrarias abrogant. Subsequent laws repeal priorconflicting ones. [Cases: Statutes 159, 162. C.J.S. Statutes 287, 294.]

50. The definition of Leges posteriores priores contrarias abrogant is provided by

Wikipedia, at the following URL: http://en.wikipedia.org/wiki/Implied_repealImplied repeal

The doctrine of implied repeal is a concept in English constitutional theorywhich 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 arerepealed (i.e. no longer law). This doctrine is expressed in the Latin phrase"leges posteriores priores contrarias abrogant".

51. Leges Posteriores Priores Contrarias Abrogant: This method of statutoryconstruction 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


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statute more accurately depicts the current societal mood or more appropriately applies

Jurisdiction to a given subject.

52. 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.

53. 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 thecontrary which includes Judicature Act, R.S.N.B. 1973, c. J-2.

54. 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 Queens 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 Queens Bench of New Brunswick.

55. It is a well established principle of statutory interpretation that the legislature does

not intend to produce absurd consequences. According to Ct, 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


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attached to interpretations which defeat the purpose of a statute or render some aspect of

it pointless or futile.

56. 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 orfrivolous consequences, if it is extremely unreasonable or inequitable, if it isillogical or incoherent, or if it is incompatible with other provisions or withthe object of the legislative enactment

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

purpose of a statute

57. 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 Queens 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 Queens

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 Queens Bench of NewBrunswick 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 Queens 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.

In Transpacific, Justice Lysyk described it as follows:"The principle ... expressio unius est exclusio alterius: the express mention ofone or more things of a particular class may be regarded as impliedlyexcluding others."


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"An implied exclusion argument lies whenever there is reason to believe thatif the legislature had meant to include a particular thing within the ambit ofits legislation, it would have referred to that thing expressly. Because of thisexpectation, the legislatures failure to mention the thing becomes groundsfor inferring that it was deliberately excluded. Although there is no express

exclusion, exclusion is implied."58. 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 legislatures 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.


designates authority or jurisdiction to a Judge of The Court of Queens 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.

60. 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 Queens 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 Queens 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.

61. The Intended Appellant submits, that because of lack of Jurisdiction {pursuant tothe 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


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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 Defendants Tenancy since year 2005 in pursuance with the New

Brunswick Residential Tenancies Act.

Hearing Rule

62. 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.

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

Audi alteram partem. Hear the other side. No one should be condemnedunheard.

64. 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.

65. 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


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[14] I am of the view that, in refusing to consider Mr.Munns application to cross-examine the deponents of the affidavits, the motionjudge failed to exercise her discretion judicially. Mr. Munn had a right to be heardon that issue, and procedural fairness required the motion judge to hear him. It isonly after hearing Mr. Munns arguments in support of his request to cross-

examine and any arguments made in reply, that the motion judge would have beenable to judicially exercise the discretionary powers conferred by Rule 39.03.

[15] In my view, the appeals should be allowed on thecommon ground raised in both Notices of Appeal that allege that the motion judgeerred in the exercise of the discretion conferred by Rule 39.03. It follows that thejudges order striking out those portions of the Plaintiffs Statement of Claimwhich assert a claim against the Defendant, Edward B. Rust Jr., must be setaside. My disposition of this appeal requires that the matter be returned to theCourt of Queens Bench for consideration of the issues raised by Mr. Munnsrequest 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 orderthe respondent, Mr. Rust, to pay one set of costs, which I would fix at $1,500.

66. 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 Appellants 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 thoseissues, and procedural fairness required the motion judge to hear him. It is only after

hearing the Intended Appellants 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.

67. 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 legal effect of a breach of natural justice is normally to stop theproceedings and render any judgment invalid; it should be quashed orappealed, but may be remitted for a valid re-hearing.


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68. 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 Andr 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.

69. 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 thePlaintiffs, being:

(1) the Plaintiffs Motion to validate the impugned Notice of Termination of Tenancy and

(2) the Plaintiffs Motion to establish priority of the Plaintiffs Mortgage over the

Defendants claims of Residential Tenancy and Mechanics Lien.

70. When the Intended Appellant filed a Motion:

a. to file a Post Hearing Brief and Adduce New Evidence (August 9, 2011, I

Andr Murray did file a NOTICE OF MOTION (FORM 37A), and

AFFIDAVIT in support which was COURT OF QUEENS BENCH

TRIAL DIVISION MONCTON N.B. FILED/REGISTERED Stamped as

August 9, 2011. A copy of this Motion is attached to the Affidavit of

Andr Murray Dated Oct 28, 2011 as EXHIBIT C) and;

b. strike scandalous affidavit material from the record (August 25, 2011, I

Andr Murray did file a NOTICE OF MOTION (FORM 37A), and

AFFIDAVIT in support which was COURT OF QUEENS BENCH

TRIAL DIVISION MONCTON N.B. FILED/REGISTERED Stamped as

August 25, 2011. A copy of this Motion is attached to the Affidavit of

Andr Murray Dated Oct 28, 2011 as EXHIBIT D)


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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

71. 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 Defendants position, further the learned Trial

Judge made obviously erroneous statements within the decision which reasonably must

be based on incorrect information, contrary to the facts of the case.

72. The Learned Trial Judge instead of adhering to rule 3.02 of the rues of Court, and

hearing the Intended /appellant regarding the filed Motion on rescinding Orders, instead

favored the Intended Respondents in all the remedies they were seeking, including

adjournments and hearing al their motions which were filed subsequently, at the sametime as the Intended Appellants Motion. The Court granted an adjournment December

2009, then another in January 2010, then a third March 2010 because the Intended

Respondents filed a second motion to be heard on the same scheduled day, then in

November 2010 the Intended Respondents filed a third motion to be heard on a two day,

scheduled event. Even though the Intended Appellant was ready to proceed with the

motion to Rescind, and so were the Intended Respondents, the Learned Trial Judge

insisted that the three motions be heard at relatively the same time. Then at the scheduled

march 2011 hearing, the Court allowed the Intended Respondents to have two of their

motions, heard before the intended Appellants Motion to Rescind. The way that the

Learned Trial Judge did provide for all the requests of the intended Respondents without

good reason for it, raises reasonable apprehension of bias.


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73. In R. v. S. (R.D.), [1997] 3 S.C.R. 484, the header of the Courts 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:

(2)Reasonable Apprehension of Bias

.The courts should be held to the highest standards of impartiality. Fairness andimpartiality must be both subjectively present and objectively demonstrated to theinformed and reasonable observer. The trial will be rendered unfair if the words oractions of the presiding judge give rise to a reasonable apprehension of bias to theinformed and reasonable observer.

If actual or apprehended bias arises from a judges words or conduct,

then the judge has exceeded his or her jurisdiction.74. As expressed in R. v. S. (R.D.), [1997] 3 S.C.R. 484, If actual or apprehended bias

arises from a judges 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 thePlaintiffs 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.

75. 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


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Intended Appellant and the Solicitors representing the Intended Respondents, attended

the many hearing on the mater.

76. 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 Appellants 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.

77. 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.

78. 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

Mayors behavior. Unfortunately this vested interest creates bias on the part of the

adjudicator.


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79. 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, to the Court for consideration, that fact was not

addressed by the Learned Trial Judge, in the subject October 21, 2011 impugned

Decision.

80. 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 theIntended 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.

81. 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 (whos 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.


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82. 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.

83. 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.

84. 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:

[33] Counsel for the petitioner argues that it is settled law that if a claimantfails to serve a defendant with an originating process in accordance with therelevant statutory requirements _ including any order for substitutional servicemade under them and subsequently obtains a default judgment based on thedefendants failure to respond, then the default judgment is a nullity...

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

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

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

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

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

5. the discretionary considerations set out inMiracle Feeds do notapply to applications to set aside default judgments where properservice was not effected.


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

Result

[55] Counsel for the defendant/petitioner suggested that if she weresuccessful in her argument and the default judgment were set aside, she wouldacknowledge service on behalf of the defendant, file a Reply, and assist inbringing the proceedings to completion before the provincial court. In thealternative, the matter could be directed back to the small claims court forreconsideration in light of this courts reasons.

M.A. Humphries J.

The Honourable Madam Justice M.A. Humphries

85. 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.

86. 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.

87. 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


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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.

88. 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 wereconsidering 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. Todays 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.

89. 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, todays Financial

Lending institution, which is at risk of nothing, which merely transfers credit, created by

a applicants signature, from one account to another.

90. 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


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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.

91. The Appellant asserts that the trial judge made a number of material errors in law

while arriving at Decisions and in respect the Courts 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.

Material misapprehension of the evidence

92. 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.

93. 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.


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94. 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;

95. If the Learned Trial Judge accepted that the numbered company withdrawing from

the action, then that means the power of sale did not occur, the sale did not close and the

Intended Respondents cannot rely on the property act, to further their claims. Which

means that the Intended Respondents could only rely on the mortgage contract, with no

statutory power what so ever to have a higher legal standing than a Tenancy pursuant to

the Mechanics Lien Act.

96. The Learned Trail judge did not rule against the Intended Appellant regarding

claims of fraud upon the Court which would mean that the trial judge was persuaded that

these claims were in fact valid enough to not rule against the Intended Appellant.

97. 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:

98. 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.


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99. 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.

100. 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 Andr Murray who is sheltered in Law by The Residential Tenancies Act,

of New Brunswick;


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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;

101. 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 confirmedand any a Termination of Tenancy of Defendant Tenant Andr 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 Andr Murray continues.


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102. Please note Defendant Andr 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 Defendants

submission.

Long Term Tenancy

103. 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.

104. 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 Defendants tenancy

was March 01, 2005.

105. 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 atlaw or in equity from the date fixed for commencement ofthe tenancy without the requirement of any entry onto thepremises.

106. 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


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termination of tenancy conditions changed substantially after April 2010, which will now

be addressed.

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

below

Application of sections 24.3 to 24.724.2 Sections 24.3 to 24.7 apply to all tenancies of premises, other than mobilehome sites, that have been occupied by the same tenant for five consecutive yearsor more.

108. Since the Intended Appellants 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.

109. The relative section ofthe 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,

(c) shall state the address of the demised premises to which the noticerelates,

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

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

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

[Emphasis added]

110. The most relevant section (at this point), ofthe 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


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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

Andr Murray by a landlord under this Residential Tenancies Act, S.N.B. 1975, c. R-10.2

shall (must) state thereason for the termination as required by this Act to do so

111. 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).

112. Intended Appellant asserts, that this Court, should not Validate (as requested by the

Plaintiffs) the impugned NOTICE OF TERMINATION OF TENANCY AND LEASEDated 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.

113. 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.

114. 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 tocollect rent at the first of every month.

Property Act verses the Residential Tenancies Act


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1. The distinguishing section of the Residential Tenancies Act is Section 2 is

reproduced below as follow: 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 theLandlord and Tenant Actor any other

Act, agreement or waiver to the contrary;

2. When the key words of section 2 of the Residential Tenancies Act, are defined it

reads as follows:

2Except where otherwise specifically provided for in this Act (Residential TenanciesAct, 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 inconsideration of payment of rent) of residential premises (any house, dwelling,

mobile home, apartment, flat, tenement or similar place that is occupied or may beoccupied by an individual as a residence) and tenancy agreements (means anagreement whereby a person is granted the right to possess premises in considerationof 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 anindividual as a residence),

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

comes into force.

3. Furthermore, regardingobligations 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 realproperty of which the demised premises form all or a portion(a) the transferee assumes all of the obligations withrespect to the tenancy; and

(b) no action lies against the transferor for any obligationwith respect to the tenancy;arising after notification of the transfer takes place in accordancewith subsection (8).

13(8) Where a landlord transfers his estate in the realproperty of which the demised premises form all or a portionhe shall notify the rentalsman and the tenant of such


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transfer in the form prescribed by regulation within sevendays after such transfer.

13(9) Where pursuant to subsection (7) a transferee assumesthe 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 wherethe landlord transfers an estate in the property to a mortgageesolely for the purpose of mortgaging the real propertyof which the premises form all or a portion.

4. 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 thecontrary, 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.

5. 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.

6. Furthermore, the Property Act, R.S.N.B. 1973, c. P-19, section 47(1) clearlyprovides 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.

7. 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-1947(1) A mortgagee exercising the power of sale conferredby section 44 may convey the property sold, for suchestate and interest therein as is the subject of the mortgage,freed from all estate, interests and rights to which themortgage has priority, but subject to all estates, interestsand rights that have priority to the mortgage.


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8. When the key words of section 47 (1) of the Property Act, R.S.N.B. 1973, c. P-19,

are defined, the following is the result.

A mortgagee exercising the power of sale conferred by section 44 (section 44 of theProperty Act) may convey the property (Mortgage) sold (at auction), for such estateand interest therein as is the subject (having relevance to the current discussion) of themortgage (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 (Thestatus 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 andrights (subject of a right - The owner of a right; the person in whom a legal right isvested, in this case a Tenant, one who holds or possesses lands or tenements by anykind of right or title.) that have priority (The status of being higher in degree or rank,specifically a Tenants rights, pursuant to the Residential Tenancies Act,

notwithstanding/ despite any other Act), to the mortgage.

9. 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.

10. 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 conveythe 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 haspriority, but subject (confined) to all estates, interests and rights that have priority tothe mortgage.

11. 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 conveythe 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 haspriority, but subject to (affected by) all estates, interests and rights that have priorityto the mortgage.


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16. The Defendant 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 frivolousconsequences, if it is extremely unreasonable or inequitable, if it is illogical orincoherent, or if it is incompatible with other provisions or with the object of thelegislative enactment

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

17. The Defendant 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 the

Landlord and Tenant Act 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