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Court of Appeal File Number: 142 -11- CA (Court File Number: M/C/0642/09)

IN THE COURT OF APPEAL OF NEW BRUNSWICK

BETWEEN:

ANDRE MURRAY

INTENDED APPELLANT (Defendant)

-and-

ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate,

INTENDED RESPONDENT (Plaintiffs)

Intended Appellant’s Submission For Motion for Leave to Appeal Filed by self represented APPELLANT ANDRE MURRAY

Intended Appellant (The Defendant) Self Represented Andre Murray 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Telephone Number:

E-mail address:

andremurraynow@

gmail.com

Intended Respondent (The Plaintiffs) George LeBlanc Solicitor of Record for ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate Name of solicitor’s firm: Cox & Palmer, Address for service: Blue Cross Centre, Suite 502, 644 Rue Main Street, Moncton NB E1C 1E2 E-mail address: gleblanc@ coxandpalmer.com Telephone number: Main 506 856 9800 Telephone number: Direct 506 382 4529 Fax 506 856 8150 Web coxandpalmer.com

Intended Appellant’s Submission For Motion for Leave to Appeal

Appellants Brief index Index

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

(c)

a concise statement of the principles of law on which the party relies

and citation of relevant statutory provisions and leading authorities

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

Schedule A

A list of authorities in the order referred to in the Submission

Schedule B

The text of all relevant provisions of Statutes or Regulations

Page

1

14

15

131

133

148

A.

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

1. October 19, 2011, André Murray (self litigant) received a telephone call at

my 31 Marshall Street, Fredericton residence from an unknown woman who

claimed to be an employee at Court of Queens Bench Moncton Client Services.

This subject woman further claimed to have a message from Mr Justice Zoël R

Dionne therefore requiring that I André Murray: “you must attend Court of

Queens Bench Moncton Trial Division to hear the Oral Decision of Mr Justice

Zoël R Dionne”.

2. As stated above the strange and or surprising telephone call from

allegedly an employee at Court of Queens Bench Moncton Client Services

advising me that I André Murray must attend to hear the Oral Decision of Mr

Justice Zoël R Dionne please note that I André Murray did of course enquire

from this unexpected caller from Court of Queens Bench Moncton Client

Services as to what exactly is the Oral Decision of Mr Justice Zoël R Dionne

regarding. No answer was available from Court of Queens Bench Moncton

Client Services as to which of the five Motions previously heard before the

learned trial judge would be part of the Oral Decision of Mr Justice Zoël R

Dionne October 21, 2011.

3. October 21, 2011, 2:00 pm, at the Court of Queens Bench Moncton Trial

division, Honorable Justice Zoel R. Dionne, gave his Oral Decision which was

and or is applicable to five Motions, moreover, a decision which was to

encompass all five Motion of seven outstanding Motions before

Honorable Justice Zoel R. Dionne.

4. As the Learned Trial Judge had ceased himself of the entire Matter

therefore all Motions filed resulting from the original year 2009 NOTICE OF ACTION and STATEMENT OFCLAIM.

5. I André Murray did ATTEND the October 21, 2011 Oral Decision

furthermore did receive (same day) a copy of the written Decision of Honorable Justice Zoel R. Dionne, Dated October 21, 2011, Court File Number: M/C/0642/09 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK, TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON, by retrieving a copy prepared for me, from Moncton Client Services.”

6. The Decision of Honorable Justice Zoel R. Dionne, Dated October 21,

2011, Court File Number: M/C/0642/09 was regarding 5 separate Motions heard over various days, from March 23, 2011, to August 5, 2011, four being filed by (for our purposes) the Intended Respondents and one being filled by the Intended Appellant.

7. I Intended Appellant did as (Defendant in that matter) cause to be filed

two separate Motions, following the Honorable Court having heard two Motions filed by the Plaintiffs August 2011, consequentially and immediately following same subject Court Hearings which the Intended Appellant believed were necessary to fairly conclude the matter regarding the first five subject Motions. One of the Motions which I Intended Appellant did file was a Motion for an injunction to caution the Court from coming to a premature decision regarding the five subject Motions (the subject of this Appeal), until the honorable Court hearing that matter could hear and consider the Intended

Appellant’s Motion, regarding Motion to Adduce New Evidence and a Post Hearing Brief, which was scheduled for August 25, 2011. I Intended Appellant did and or had filed a second motion following the last Court Hearings of two Motions in August 2011 therefore to strike inter alia vexatious and erroneous affidavit evidence from the record; please note this Motion to Strike Evidence was and still remains scheduled for February 23, 2012, because I André Murray did and do verily believe, the subject affidavit evidence would be prejudicial to my cause, further the subject vexatious and erroneous material was frivolous, and an abuse of the process of Court. I André Murray did believe that if the evidence was allowed to remain unchallenged, my cause would be prejudiced, which is now evidenced by the October 21, 2011 decision which I now seek to Appeal.

8. The Intended Appellant’s Motion, regarding, the proposed Injunction, and

to adduce new evidence include a proposed filing of a Post Hearing Brief Dated August 9, 2011, all of which was scheduled to be heard August 25, 2011, was placed before Honorable Justice George S. Rideout, who immediately upon entering the Court room declared that Honorable Justice Zoel R. Dionne was seized of the matter, therefore intended to be heard that day, and subsequently Honorable Mr. Justice George S. Rideout alluded that he could not hear the matter. Honorable Justice George S. Rideout did declare as he was leaving the Court room further that he would go directly to see Honorable Justice Zoel R. Dionne in his office (ashedid believe him to be there) that Honorable Mr. Justice George S. Rideout would bring this in discrepancy to the attention of Honorable Justice Zoel R. Dionne, right away, so the matter may be properly dealt with in the undisclosed future.

9. The Intended Appellant’s Motion, regarding, the proposed Injunction,

adducing new evidence and filing a Post Hearing Brief Dated Tuesday August 9, 2011, was filed by the Intended Appellant, four days after the last scheduled Friday August 5, 2011 date of the Hearings of the subject five Motion (the subject of this Appeal).

10. The Intended Appellant did file, two Motions within 20 days of the

August 5, 2011 (last hearing Date of subject Motions which decisions of, are now to be Appealed). 57 days did pass before Honorable Justice Zoel R. Dionne did unexpectedly provide a Oral decision, without hearing the Intended Appellants two Filed Motions. The Intended Appellant verily believes that this violates the principles of Natural Justice, rules of procedural fairness and a person's common law right to be heard.

11. The Intended Appellant verily believes, Natural Justice and procedural

fairness requires that administrators adhere to a fair decision-making procedure. The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side'). This Maxim, in law means: no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person. I André Murray very believe the Honorable Court should have heard the Intended Appellant’s two scheduled Motions before rendering a decision.

12. I André Murray very believe to be true that, the question whether an Court

Order or decision is interlocutory or final should be determined by looking at the order or decision itself. The nature of the order or decision, as made, finally

disposes of, or substantially decides the rights of the parties; consequentially it ought to be treated as a final order or decision.

13. I André Murray very believe to be true that, because of the principle of

Res Judicata & Functus Officio the Court of original Jurisdiction can longer hear anything further regarding the matter of the five motion, the result of which is this Decision being now appealed, there fore the decision is final.

14. I André Murray very believe to be true that this Court, upon hearing the

motion, will doubt the correctness of the order or decision in question and find

error in the jurisprudence thereof.

15. I André Murray very believe to be true that this Court, upon hearing the

motion will consider that the Appeal (of these subject matters) involves matters of such importance that leave to appeal should be granted. Considering the importance, the impact of this decision may have, as a precedent upon the rights of Tenants pursuant to the Residential Tenancy Act when compared to Mortgagees, in New Brunswick from here forth; unquestionably the Intended Appellant believes that Leave to Appeal may/should be granted.

16. I André Murray very believe to be true that, This Court 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 of (1) Does the appeal pose a serious challenge to the decision in the court below? (2) Will the applicant suffer irreparable harm without a stay? (3) Does the balance of convenience favour the

order sought? The first branch of the test is referred to in Rule 62.26, while the second and third branches have been formulated by the courts to provide a principled framework for the exercise of discretion contemplated by the Rule.

17. I André Murray very believe to be true that (1) This Appeal does pose a

serious challenge to the decision in the court below.

18. I André Murray very believe to be true that (2) The applicant will suffer

irreparable harm without a stay.

19. I André Murray very believe to be true that (3) the balance of

convenience favours granting the order sought.

20. I André Murray very believe to be true 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.

21. I André Murray very believe to be true that the Court rendered a decision

on five Motions without hearing the (other side) Appellant, additionally on two further Motions, which directly addressed and were relative to and could have changed the outcome of the five Motions decided upon by the Court, October 21, 2011.

22. I André Murray very believe to be true that 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.

23. I André Murray very believe to be true 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 regarding costs. The learned Trial Judge erred in law, in irregularly applying the Courts Discretion. The Appellant contends, that The Learned Trial judge did display abuse of discretion, which is an adjudicator's failure to exercise sound, reasonable, legal decision-making. The Learned Trial Judge instead rendered a decision which is unsupported by the evidence and clearly based on erroneous findings of material fact.

24. I André Murray very believe to be true that 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.

25. I André Murray very believe to be true that 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.

26. I André Murray very believe to be true that 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.

27. I André Murray very believe to be true that 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. Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The law never works an injury, or does a wrong. The Appellant claims that the exercise of discretion of the Learned Trial Judge in regards to Cost award to the Plaintiff is manifestly without merit, therefore excessively disproportionate, therefore, unbalanced substantial injustice and serious injustice would result if the Cost award is allowed to stand. Manifest Abuse of Discretion is when the 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.

28. I INTENDED APPELLANT André Murray make this my Claim of Right

that as a Residential Leasehold Tenant at 31 Marshall Street, since year 2005, this is to say and affirm that I am in good standings in pursuance with the Residential Tenancy Act of New Brunswick; incidentally, the beginning of each month and no later than the first day of each month, including therefore this first day of October, 2011 I André Murray Residential Leasehold Tenant I have, according to my lease agreement, furthermore, I have paid directly into my landlords bank account at the R.B.C. Account Number 012145014220

29. Moreover, as recently as March 2011 I have caused written

correspondence with the Solicitor for my Landlord, Landlord Betty Rose Danielski and also communicated directly by written correspondence with my Landlord Betty Rose Danielski, both of which respectively speaking, have not rejected my claims found therewithin subject written correspondence, that which included my CLAIM inter alia that Landlord Betty Rose Danielski is indeed my Landlord by the simple act, of her acceptance of this subject CLAIM and Landlord Betty Rose Danielski’s non denial thereof, moreover Landlord Betty Rose Danielski continues to accept my monthly rental payments, consistently occurring the first of each month and which furthermore, moreover are a continuance of a long unbroken line of payments since the year 2005, consequently, Landlord Betty Rose Danielski whom I Claim is the Landlord who has failed to deny my written CLAIM to both her and her Solicitor, continues to accept my monthly rental payments furthermore, Landlord Betty

Rose Danielski accepted last month’s rent October 2011 in the capacity of Landlord, I find that the principle of issue estopple applies as Landlord Betty Rose Danielski has not denied my claims further as is evidenced by the commerce between Residential Tenant André Murray consequently I verily believe that Landlord Betty Rose Danielski is my legal Landlord.

30. As such is the case I am a Resident protected by the Residential Tenancy

Act of New Brunswick which is NOTWITHSTANDING all other acts.

31. This is further to state that I have a right to remain in occupancy at and or

of 31 Marshall Street, Fredericton as a Residential Tenant in good standing, moreover any interference with my tenancy, by any other authority other than the Chief Rentalsmen of New Brunswick will be considered a Breach of the Covenant of quiet enjoyment, reasonably by tortious actions, for that reason such actions would be interfering with the use and enjoyment of the leased premises, which is substantial and of a grave and of a permanent nature, such that it constitutes a serious interference with the ability of the Tenant André Murray to exercise right of possession of his Residential Leasehold Tenancy at 31 Marshall Street Fredericton, New Brunswick.

32. Furthermore, I André Murray as a responsible Tenant maintain a full

coverage policy Insurance Plan with the insurance provider called: State Farm Fire and Casualty Company for that purpose is effectively providing coverage against loss of the entire duplex 29 and 31 Marshal Street Fredericton, New Brunswick for any reasons. Attention

33. January 14, 2011 the Honorable Justice Zoël R. Dionne did sign a “case

management” Order therefore prohibiting any further filing of evidence to the subject motions to be heard, against the objections of André Murray the Defendant in that matter. Please see a copy of this Order which is attached to the Affidavit of André Murray Dated October 28, 2011 as EXHIBIT A.

34. October 24, 2011 I INTENDED APPELLANT André Murray did receive

a letter from Nancy A. Williamson, Moncton Region Client Services Dated:

October 13, 2011, which indicated and therefore confirmed that a new Date set as February 23, 2011 at 9:30 AM for a Hearing of the Motion filled by André Murray on August 9, 2011. A copy of that letter and the envelop which it arrived in having a tracking number RW 612 716 958 CA is attached to the Affidavit of André Murray Dated October 28, 2011 as EXHIBIT B.

35. August 9, 2011, I André Murray did file a NOTICE OF MOTION

(FORM 37A), and AFFIDAVIT in support thereof, which was COURT OF QUEENS BENCH TRIAL DIVISION MONCTON N.B. FILED/REGISTERED Stamped as August 9, 2011. A copy of this Motion is attached to the Affidavit of André Murray Dated October 28, 2011 as EXHIBIT C.

36. 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 October 28, 2011 as EXHIBIT D.

37. January 25, 2010 the Honorable Justice Dionne did sign a Order which

inter alia awarded $500 in cost to Defendant André Murray. A copy of this Order is attached to the Affidavit of André Murray Dated October 28, 2011 as EXHIBIT E.

38. March 28, 2005 I André Murray did sign a four year FORM 6

STANDARD FORM OF LEASE Dated March 28, 2005, a Residential Tenancy Lease with Landlord Betty Rose Danielski for the 29 and 31 Marshall Street Property, Fredericton N.B. The March 28, 2005 Residential Lease is attached to the Affidavit of André Murray Dated October 28, 2011 as EXHIBIT F.

39. September 1, 2005 I André Murray did sign a year to year FORM 6

STANDARD FORM OF LEASE Dated September 1, 2005, a Residential Tenancy Lease with Landlord Betty Rose Danielski for the 29 and 31 Marshall Street Property, Fredericton N.B. The Sept 1, 2005 Residential Lease is attached to the Affidavit of André Murray Dated October 28, 2011 as EXHIBIT G.

40. Plaintiff agrees that there exists a PROPERTY ACT of NEW

BRUNSWICK which the RBC and 501376 N.B. Ltd., body corporate company, Respondents in the matter have argued before the COURT Of QUEEN’S BENCH, Moncton TRIAL DIVISION therefore alleges inter alia that they have a Financial Investment Instrument called a MORTAGEE DEED although when APPLICANT (in this matter) requested by DEMAND FOR PARTICULARS the alleged MORTAGEE DEED and or proof of any MORTAGE being currently in existence neither Royal Bank of Canada

501376 N.B. Ltd., body corporate company, are not able to produce said alleged MORTAGEE DEED.

41. I André Murray verily believe Financial Investment Instrument called a

MORTAGEE DEED it does not exist and or have not witnessed the Honorable Court hearing this matter being provided with proof of the existence of the subject MORTAGEE DEED and or any other significant proof of the existence of Financial Investment Instrument which may be therefore negotiable in commerce. Nevertheless in the absence of said proof the Learned Trial Judge hearing the matter ruled in favor of the Plaintiffs in that matter Respondents here.

42. I André Murray verily believe it behooves any residential Leasehold

Tenant in New Brunswick to protect and therefore evoke the Residential Tenancy Act of New Brunswick especially in matters such as these, when, financial institutions are negotiating their financial investment instruments relative to residential properties, therefore moreover these subject institutions must be reminded that the Legislative Assembly of New Brunswick anticipated such a scenario and for that reason included within the Residential Tenancy Act of New Brunswick is the condition NOTWITHSTANDING.

43. I André Murray verily believe the quality: NOTWITHSTANDING with

respect to all other acts was drafted into the Residential Tenancy Act of New Brunswick, furthermore, the erroneous position of the Learned Trial Judge in his misapprehension of Residential Tenancy Law in New Brunswick and the shelter and or protection provided to all residential Tenants of New Brunswick

in instances such as all the matters heard before the learned trial judge

regarding this matter.

44. I André Murray verily believe the Learned Trial Judge did error in law,

alternatively moreover, in finding contrary to Residential Tenancy Rights

established in New Brunswick verbally expressed a subjective preference to

rule in favour of financial institutions.

45. At this time the Intended Appellant is a Tenant in good standing,

payments of the agreed upon rental fees are made to the Landlords Bank

account the first of each month including this one, November 2011, regardless

of the impugned termination of tenancy, which the Learned Trial Judge did

erroneously validate, the Landlord Betty Rose Danielski has and is still

accepting Residential Tenancy Rental payments to here designated account.

The Acceptance by a Landlord of Rental payments is acceptance of a

continuation of the previous lease, and further alternatively, in the very least

establishes a new and binding tenancy agreement. The Intended Appellant is

does have a Residential Tenancy Lease which is protected by the Residential

Tenancy Act of New Brunswick.

B.

(b) a concise statement of the issues to be dealt with by the court,

1. Is this decision a final order?

2. Is there is a conflicting decision by another judge or court 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?

7. Should the Court give special instruction regarding the

Appellant’s Submission?

8.

Should the Court give instruction on filing of the Appeal

Books?

9.

Should the Court recognize the Tenancy of Intended Appellant

André Murray?

C.

(c) a concise statement of the principles of law on which the party relies and

citation of relevant statutory provisions and leading authorities, and

1.

FINAL ORDER OR DECISION

46. The nature of the decision, Dated October 21, 2011, by the Honorable

Zoël R. Dionne, finally disposes of, or substantially decides the rights of the

parties, and it ought to be treated as a final order or decision.

47. The intended consequence of the Action filed by the Intended

Respondents was to gain legal vacant possession of the 29 and 31 Marshall

Street Property, Fredericton New Brunswick, so as to clear the Marshall Street

property title of the Intended Appellants Mechanics Lien Claim, through the

Power of Sale procedure, (pursuant to the New Brunswick Property Act). The

decision being Appealed, dated October 21, 2011 accomplishes this intended

goal.

48.

The Intended Respondents wanted the Tenancy of the Intended Appellant

terminated and the 29 and 31 Marshall Street, Fredericton, New Brunswick

Property vacated, so they could achieve legal vacant possession, and allegedly

act to secure payment of a Mortgage, which allegedly fell into default. The

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

security of tenure, which should be a obvious right to all Tenants of New

Brunswick. The Decision being appealed, Dated October 21, 2011, as 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.

49. In essence the matter is resolved, (through the impugned Order Dated

October 21, 2011), therefore, finally disposes of, or substantially decides the

rights of the parties.

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

Honorable Justice J. ERNEST DRAPEAU, J.A. stated the following regarding

the approach to the determination of the threshold question of whether an order

or decision is interlocutory or final:

Decision

[7]

A preliminary question arises: 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.

51. The nature of the order or decision, as made, finally disposes of, or

substantially decides the rights of the parties; consequentially it ought to be

treated as a final order or decision. The Royal Bank of Canada would in effect

have received the relief they where seeking as expressed in the Original Notice

of Action and Statement of Claim, vacant possession of the 29 and 31 Marshal

street property, so they could disposed of the property. Once the Defendant is

removed from the property, and vacant possession is achieved by the Plaintiffs,

there would be no longer a reason to continue on with the litigation claims,

since their stated desired remedy was achieved, (those specific claims which

the Plaintiffs in that matter claimed were the basis for filing their lawsuit).

52. Black's Law Dictionary (8th ed. 2004), at Page 1982 provides the

following definition of Functus Officio as follows:

FUNCTUS 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 on the Residential Tenancy Act of New Brunswick, the Property Act

of New Brunswick, Termination of Tenancy or the matter of Rescinding Orders

made without Notice and inter alia the other relief which was sought 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, the

decision Dated October 21, 2011, by the Honorable Zoël R. Dionne regarding the five motions considered, which the Defendant seeks leave to appeal presently;

(2)

matters, unless overturned upon Appeal ( the only Court with the Jurisdiction to do so) after consideration by the Honourable Court of Appeal, furthermore, Honorable Zoël R. Dionne, could not rule again on these same matters between the parties;

(3)

original parties such as in this case of the ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate, and ANDRÉ MURRAY.

a final judgment on the merits, the decision as it stands is final on the

the involvement of the same parties, or parties in privity with the

56. The Defendant would be barred by res judicata and functus officio,

therefore not be able to have the Court of Queens Bench Trial Division hear anything further regarding the Rights of Residential Tenants in New Brunswick, as they applied to the Intended Appellant, (Defendant in that matter) André 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. Plaintiff’s Motion: The numbered company 501376 N.B. Ltd., a body corporate withdrawing from the litigation;

b. Plaintiff’s Motion: Striking the (Intended Appellant in this matter) Defendant’s Affidavit material from the record regarding claims of Fraud upon the Court, inter alia;

c. Defendant’s 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. Plaintiff’s 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. Plaintiff’s Motion: Ruling on impugned Notice of Termination of Tenancy and lack of jurisdiction of the Court, inter alia.

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

the Court of Queen’s Bench Trial Division from hearing the Intended Appellant’s two further motions scheduled for February 23, 2012, because of estopple, the Court could not possibly grant the relief requested, which is intended to directly affect the courts conclusions, regarding the 5 motions (at the time undecided upon) but now already decided upon. The Defendant was seeking a Stay of Proceedings until the Court considered accepting New Evidence and a Post Hearing brief further, the Defendant was seeking to strike prejudicial affidavit material from the record before the Court rendered a decision on the five Motions (now being Appealed). This was necessary evidently because without the Court Striking the requested frivolous and vexatious Affidavit material from the record, considering a post hearing brief and considering the new Evidence, the Learned Trial Judge did in fact render a decision against the Defendant in that matter on all remedies sought.

58. Should this Honorable Appellate Court, in the process of rendering a

decision, in the unlikely event of determining that the lower Court decision of

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 “Leave to appeal shall be granted

”,

not

[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,

(c)

the Court considers that the appeal involves matters of such importance that leave to appeal should be granted, or

(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 ”

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).

appeal an interlocutory order may be granted where

[Emphasis

[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:

2.

A) Leave to appeal shall be granted as follows:

Rule 62.03(4) (a) there is a conflicting decision by another judge or court upon a question involved in the 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,

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.

to change the law in whatever way it sees

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]

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

I note that the Director argues that the current rule of statutory

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]

The Interpretation Act of Manitoba, C.C.S.M., c. I80 requires the same conclusion.

Further the Director submits that the language of section 6 of

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]

expression of the Supreme Court, namely the language of Iacobucci J. in

Rizzo (above).

I recognize that I am bound to apply as a test the latest

[41]

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.

Having reviewed and considered its entire context, and

[42]

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.

Argument was presented by the Mortgagee on the practical

[43]

reasons. They are policy issues properly brought before an appropriate

legislative committee when amendments to the Act are considered.

I do not intend to comment on those arguments in these

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.

3.

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]

section 6 of The Interpretation Act of Manitoba, C.C.S.M., c. I80

requires the same conclusion.

Further the Director submits that the language of

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:

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

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+abroga

nt)

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

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:

., Elmer Driedger in Construction of Statutes (2nd ed.

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.

U.S. Supreme Court: "[I]n interpreting a statute a court should always turn to one cardinal canon before all .[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.

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).

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/ExpressioUniusEstExclusioAlteri

us.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

mention of one or more things of a particular class may be regarded

as impliedly excluding others."

expressio unius est exclusio alterius: the express

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

implication

the a contrario argument

negative

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:

[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]

and order the respondent, Mr. Rust, to pay one set of costs, which I

would fix at $1,500.

For these reasons, I would allow the appeals

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 and death?"

how much more so when the difference is between life

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]

court is one of the small claims Court’s jurisdiction to grant default

The petitioner submits that the issue for consideration by this

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]

claimant fails to serve a defendant with an originating process in accordance with the relevant statutory requirements _ including any

Counsel for the petitioner argues that it is settled law that if a

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]

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.

Counsel for the defendant/petitioner suggested that if she

“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.

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:

referring to a judgment, decision or ruling of a court

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,

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

the notice relates,

(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, or

(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,

or

(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