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INDEX
A. PART I - STATEMENT OF FACTS .................................................................................. 1
B. PART II ISSUES ................................................................................................................ 3
(1) Questions for the Court to Answer .......................................................................... 3
(2) Introduction ................................................................................................................ 3
(3) The Grounds ............................................................................................................... 8
(A)Injunctive Relief ................................................................................................. 8(1) They Must Show There Is a Serious Issue to Be Tried................................ 9
(2) They Must Prove They Will Suffer Irreparable Harm if the InjunctionIs Not Granted ................................................................................................. 11
(3) They Must Prove that the Balance of Convenience Favors the Grantingof the Injunction ............................................................................................... 13
(4) Conclusion ................................................................................................. 16
(B)Section 7 CharterAnalysis ................................................................................ 18(1)Does this Claim Follow Within the Scope of Section 7? ........................... 19
(i)Is There Sufficient State Action? ....................................................... 19
(ii)Is the State Action the Cause of the Deprivation? ........................... 20
(2)Is There a Deprivation of One of the Protected Rights? ........................... 22
(i)Liberty ............................................................................................... 22
(ii) Security of the Person ...................................................................... 23
(C)Is the Deprivation in Accordance with the Principles of FundamentalJustice? ...................................................................................................................... 24
(1) Overview .................................................................................................... 24
(2)Application in Non-Criminal Legislation .................................................. 27
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(3) Overbreadth ............................................................................................... 28
(4)Arbitrary Provisions .................................................................................. 29
(5)Analysis ...................................................................................................... 30
(D)Section 15(1) ...................................................................................................... 32(E) Section 1 .............................................................................................................. 32
(1)Overview .................................................................................................... 32(2)Important Objective ................................................................................... 34
(3) Proportionality ........................................................................................... 35
(i)Rational Connection .......................................................................... 35
(ii)Minimal Impairment......................................................................... 36
(iii)Is the Impact Disproportionate? ..................................................... 36
(4) Conclusion Regarding Section 1 ................................................................ 37
(4) Remedy ........................................................................................................................ 37
(5) Cost Orders in Favor of Self-Represented Litigants ............................................... 40
C. PART III ORDERS SOUGHT ......................................................................................... 44
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A. PART ISTATEMENT OF FACTS
1. As of April 2012, the Applicant Andr Murray (hereinafter the Applicant) has been a
residential tenant at the same location, paying monthly rent uninterrupted to the same Landlords
bank account for seven consecutive years. The Applicant has never been served a valid Notice
of Termination of Tenancy or a Form 8 Notice of Transfer by the Landlord, Betty Rose
Danielski (hereinafter the Landlord) in accordance with New Brunswicks Residential
Tenancies Act, S.N.B. 1975, Cap. R-10.2, subsection 13(8).
2. On March 28, 2005, the Applicant signed a four-year Form 6 Residential Lease (Standard
Form of Lease) with the Landlord for the duplex property located at 29 and 31 Marshall Street,
Fredericton, New Brunswick (hereinafter Property).
3. On September 1, 2005, the Applicant signed a year-to-year Form 6 Residential Lease
(Standard Form of Lease) with the Landlord for each of the units at subject residential duplex
Property at 29 and 31 Marshall Street, Fredericton, New Brunswick.
4. On October 21, 2011 at 2:00 p.m., at the Court of Queens Bench Moncton Trial Division,
the Honourable Mr. 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 motions of seven
outstanding motions before the Honourable Mr. Justice Zoel R. Dionne.
5. The Applicant is a residential tenant and leaseholder of the Property.
6. The Respondent Royal Bank of Canada (hereinafter Royal Bank), is a chartered bank
having its head office in Montreal, Quebec, and having a branch office located in Fredericton,
New Brunswick.
7. The Respondent, 501376 N.B. Ltd., is a body corporate (empty shelf company without
equity) with its owners office being Mecca Corporation on the 211 Doak Road, Fredericton,
New Brunswick.
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8. The Respondent, The Honourable Marie-Claude Blais, Q.C., is Minister of Justice and
Attorney General for the Province of New Brunswick, with office located at 670 King Street,
Fredericton, New Brunswick, E3B 1G1.
9. The Respondent, The Honourable Robert Douglas Nicholson, is Minister of Justice and
Attorney General of Canada, with office located at 284 Wellington Street, Ottawa, Ontario, K1A
0H8.
10. The Applicant issued a copy of the neither vexatious nor frivolous Notice of Application
pursuant to subclause 22(3)(a)(i) of the Judicature Act, R.S.N.B. 1973, Cap. J-2, to each of the
Attorney General for New Brunswick and the Attorney General for Canada, confirming that a
constitutional issue has been raised in this case, namely whether or not the Residential Tenancies
Act, supra, or that the Property Act, R.S.N.B. 1973, Cap. P-19,subsection 47(1) infringes upon,
and is invalidated by, sections 7, 8 and 9 and subsection 15(1) of the Canadian Charter of Rights
and Freedoms (hereinafter Charter).
11. The Applicant has been a victim of multiple section 7 and subsection 15(1) Charter
violations as described within the Notice of Application. The Applicant has been caused undue
and unnecessary emotional and physical distress and suffering as a result of the aforementioned
Charterviolations;
12. This is an appropriate Court under subsection 24(1) of the Charterto hear, determine and
remedy the above-noted Charterviolations.
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B. PART IIISSUES
QUESTIONS FOR THE COURT TO ANSWER
1. Does theResidential Tenancies Act, S.N.B. 1975, Cap. R-10.2,, violate the section 7 and orsubsection 15(1) of the Charter?
2. Does the Property Act, R.S.N.B. 1973,supra, violate the section 7 and/or subsection 15(1) ofthe Charter?
13. If the Court answers question 1 with a positive answer, then the Applicant should be
granted the relief sought and a declaration shall be made as requested in the Orders sought
Section C. PART III ORDERS SOUGHT of this Brief.
14. If the Court answers question 2 with a positive answer then the Applicant should be
granted the relief sought and a declaration shall be made as requested in the Orders sought
Section C. PART III ORDERS SOUGHT of this Brief.
PRINCIPLES OF LAW
The Impugned Acts in question are as follows:
(2) Introduction
15. The Applicant kindly requests this Honourable Court to take judicial notice in reviewing
this application. Moreover, whenever it is necessary to assure that justice is done.
16. Democratic values and principles under the Charter demand that legislators and the
executive take judicial Notice and other factors into account; and if they fail to do so, courts
should stand ready to intervene to protect these democratic values as appropriate. As others have
so forcefully stated, judges are not acting undemocratically by intervening when there are
indications that a legislative or executive decision was not reached in accordance with the
democratic principles mandated by the Charter.
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17. To respond, it should again be emphasized that our Charter's introduction and the
consequential remedial role of the Courts were choices of the Canadian people through their
elected representatives, as part of a redefinition of our democracy. Our constitutional design was
refashioned to state that, henceforth, the legislatures and executive must perform their roles in
conformity with the newly conferred constitutional rights and freedoms. The courts are then the
trustees of these rights, insofar as when disputes arise concerning their interpretation, which is a
necessary part of this new design.
18. Courts in their trustee or arbiter role must perforce scrutinize the work of the legislature
and executive, not in the name of the courts, but in the interests of the new social contract that
was democratically chosen. All of this is implied in the power given to the courts under
section 24 of the Charterand section 52 ofThe Constitution Act, 1982,Schedule B to the Canada
Act 1982 (UK), 1982, c. 11.
The Grounds
19. The Applicant brings this application pursuant to subsection 24(1) of the Charterwhich
provides for remedy to the individual whose rights pursuant to the Charter have been
infringed. A court of competent jurisdiction is a tribunal that has jurisdiction over the person
and the subject matter, and, in addition has the authority to make the order sought. In this case
the Court of Queens Bench, being a Superior Court, is such a court that has jurisdiction over the
person and the subject matter, so that pursuant to subsection 24(1) of the Charter, the Court of
Queens Bench Trial Division has the authority to make the order sought and found herein. The
Chartermatters before this Court are:
a) That subsection 47(1) of the Property Act, supra, is impugned legislation because it isworded in such a manner as to be manipulated and/or misinterpreted, to consequentiallyviolate and or circumvent the Charterprotected rights of residential tenants;
b) The Residential Tenancies Act, supra, is unequivocally NOTWITHSTANDING allother acts and, despite this, mortgagees are continuing to blatantly benefit from specialand unequal benefit of the law as in this case; the Honourable Mr. Justice Zoel R. Dionnehas established a precedent which, if allowed to stand, will continue to enable mortgageesto violate residential tenants rights and for this reason, the legislation must be consideredimpugned and in need ofChartercompliance to be brought into alignment with Chartervalues;
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c) The Residential Tenancies Act, supra, properly protects tenants and the Charterprotected rights of residential tenants; however, as in this application the Royal Bank, and501376 N. B. Ltd.; the Court of Queens Bench Trial Division and certain Law SocietyMembers have all participated to circumvent the Residential Tenancies Act, supra, in
violation of the Charterrights of the Applicant;
d) The Residential Tenancies Act, supra, is also fatally deficient in providing Charterprotection by properly protecting residential tenancy rights, and must be amended tobring it into compliance with the Charter, as is incumbent upon all provinces.
Residential Tenancy Act
20. The Applicant would like to highlight that as a residential tenant in the Province of New
Brunswick, he has residential tenancy rights granted pursuant to the Residential Tenancies Act,
supra, which should be congruent with the values of the Charter. The procedure by which a
residential tenant may have his residential rights displaced or infringed is only according to the
Residential Tenancies Act, supra. Residential tenancy rights protect a most vulnerable element of
society. Public policy through the Residential Tenancies Act, supra, expressed and crystallized
the public importance of not having residential tenancy rights infringed upon. TheActprovides a
vehicle by which rights may be protected through negotiation (when necessary), moreover
enforcement of the legislation occurs (as intended by legislators) without costly court
intervention.
21. Subsection 2(a) and (b)s all encompassing notwithstanding clause of the Residential
Tenancies Act, supra, does express with irresistible clearness the intention of the Legislature to
moderate the common law rights of the mortgagee. The Residential Tenancies Act, supra, as a
public policy contemplates the rights of tenants and landlords not mortgagees, but it does not
provide an exemption clause for mortgagees, nor does the subjectActprovide the mortgagee any
special rights of eviction of residential tenants. Despite this glaring fact, the Applicant has had
his Charter protected residential tenancy rights violated by the mortgagee, who erroneously
claims the supremacy of the Property Act, supra, thereafter further benefited from the
exploitation of claimed defects (loop holes) in the Residential Tenancies Act, supra, to the
benefit of Royal Bank of Canada and 501376 N.B. Ltd., and collaterally to the detriment of the
Applicant.
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22. Due to public interest, changes in residential tenancies acts of other provinces have
occurred in line with Chartercompliance requirements which New Brunswick should also
have done. The Royal Bank and 501376 N.B. Ltd., have themselves volunteered repeatedly and
referred to the fact that residential tenancies acts have been changed in other provinces to align
them with the Charter. Both the Royal Bank and 501376 N.B. Ltd. further assert that the New
BrunswickResidential Tenancies Act, supra, is unlike other provinces which have amended their
tenancy acts. The Applicant believes that it is of great importance that the Province of New
Brunswick should create legislative uniformity with other provinces and align the Residential
Tenancies Act, supra with the Charter, pursuant toAn Act Respecting Compliance of Acts of the
Legislature with the Canadian Charter of Rights and Freedoms, S.N.B. 1983, Cap. 4 andAn Act
Respecting Compliance of the Laws of the Province with the Canadian Charter of Rights andFreedoms, S.N.B. 1985, Cap. 41.23. On behalf of the Royal Bank and 501376 N.B. Ltd., Lawyer George H. LeBlanc,
encouraged the Court of First instance and Court of Appeal Justice to overlookResidential
Tenancies Act, supra, subsection 26(3)No person shall obstruct, prohibit or interfere with the
right of a rentalsman (b) to carry out his powers and duties under this Act., which is a
violation of the Applicants section 7 and subsection 15(1) rights under the Charter, furthermore,
this is a violation of the principles per Semaynes Case (1604) of sanctity of the home, for that
reason constitutes a failure of the Court of Queens Bench to take judicial notice of the facts and
current applicable law.
24. The Applicant believes he will prove that, for anyone to cause an eviction of a residential
tenant, the New Brunswick Rentalsman should have, according to theResidential Tenancies Act,
supra, first received from the landlord an application for eviction, and only after the rentalsman
has consulted with both the landlord and tenant attending at a meeting for discovery of the
matter, would the rentalsman offer remedy; however, should the remedy offered by the
rentalsman not be satisfactory to either of the parties, the rentalsman may by referral defer the
matter and the tenant and or landlord could then go the Court of Queens Bench, in that special
capacity of a Court of review, however remaining in pursuance with the Residential Tenancies
Act, supra.
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The Charter
25. The Applicant asserts New Brunswicks legislation has not been updated to comply with
section 7 and 15(1) of the Charter and is therefore impugned and in need of legislative
amendment under New Brunswicks An Act Respecting Compliance of Acts of the Legislature
with the Canadian Charter of Rights and Freedoms, supra, and An Act Respecting Compliance
of the Laws of the Province with the Canadian Charter of Rights and Freedoms , supra, which is
a matter of national uniformity.
26. The New Brunswick Courts have allowed behavior that must be considered morally wrong
or offensive to ones sensibilities; for the New Brunswick Judiciary to allow mortgagees tocircumvent theResidential Tenancies Act, supra, which was intended to be a lawful, timely, cost
effective body for just resolution of this Applicants tenancy issues. For this reason, New
Brunswick Courts have demonstrated evident bias, which is a violation of the Applicants section
7 and 15(1) Charterrights: liberty and security of the person; equal protection and equal benefit
without discrimination, in and before the law, consequentially confirming this is a matter of great
public interest and importance.
27. It is a travesty of justice that the Applicant could have his section 7 Charterrights violated,
as a consequence of the Court allowing a mortgagee to circumvent the Residential Tenancies
Act, supra, thereby trampling on his guaranteed Charter rights after paying uninterrupted
monthly rent for the Property to the Landlord for seven consecutive years.
28. The Supreme Court has held on a number of occasions that the right to security of the
person protects both the physical and psychological integrity of the individual. For a rule or
principle to constitute a principle of fundamental justice for the purposes of section 7, it must be
a legal principle, about which there is significant societal consensus that it is fundamental to the
way in which the legal system ought to fairly operate, and it must be identified with sufficient
precision to yield a manageable standard against which to measure deprivations of life, liberty or
security of the person, in this case theResidential Tenancies Act, supra.
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(3) The Grounds
(A)Injunctive Relief
29. The applicableRules of Courtto be considered are as follows:
40.01 A request for an interlocutory injunction or mandatory order, or for anextension thereof, may be made:
(a) before commencement of proceedings, by preliminary motion, and
(b) after commencement of proceedings, by motion, but in the former case, the
request may be granted only on terms providing for commencement of
proceedings without delay.
40.05 An injunction or mandatory order may be made under this rule either
unconditionally or upon terms and conditions as may be just.
Rules of Court, N.B. Regulation 82-73, Rules 40.01 and 40.05
30. TheJudicature Act, supra, provides the following:
33. An order on judicial review or an injunction may be granted or a receiver
appointed by an interlocutory order of the Court in all cases in which it
appears to the Court to be just or convenient that the order should be made;
and any such order may be made either unconditionally or upon such terms
and conditions as the Court thinks just; and if an injunction is asked, either
before or at or after the hearing of any cause or matter, to prevent a threatened
or apprehended waste or trespass, such injunction may be granted, if the Court
thinks fit, whether the person against whom the injunction is sought is, or is
not, in possession under any claim of title or otherwise, or, if out of possession,
does or does not claim under any colour of title a right to do the act sought to
be restrained, and whether the estates claimed by both or either of the parties
are legal or equitable; but without the leave of the Attorney General no
injunction shall be applied for that, if granted, would delay or prevent the
construction or operation of any manufacturing or industrial plant on the
ground that the discharge from such plant is injurious to some other interest.
Judicature Act,supra, s. 33
31. Black's Law Dictionary provides the following definition of injunction:
injunction, n. A court order commanding or preventing an action. To get an
injunction, the complainant must show that there is no plain, adequate, and
complete remedy at law and that an irreparable injury will result unless the
relief is granted. Also termed writ of injunction. See IRREPARABLE-
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INJURY RULE. [Cases: Injunction 1. C.J.S. Injunctions 24, 12, 14, 22, 24,
166.]
Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,8th ed.,injunction.(Thomson/West, 2004)at pp. 2296 & 2297
In a general sense, every order of a court which commands or forbids is an
injunction; but in its accepted legal sense, an injunction is a judicial process or
mandate operating in personam by which, upon certain established principles
of equity, a party is required to do or refrain from doing a particular thing. An
injunction has also been defined as a writ framed according to the
circumstances of the case, commanding an act which the court regards as
essential to justice, or restraining an act which it esteems contrary to equity
and good conscience; as a remedial writ which courts issue for the purpose of
enforcing their equity jurisdiction; and as a writ issuing by the order and
under the seal of a court of equity.
Joyce, Howard C., A Treatise on the Law Relating to Injunctions, Volume 1(Albany, M. Bender, 1909)p 2-3
32. In 508692 N.B. LTD. v. Brodersen Realty Ltd., Justice William T. Grant stated the
following:
In order to succeed in a motion for an interim injunction the plaintiff must meet
the test approved by the Supreme Court of Canada in RJR MacDonald and
Imperial Tobacco v. Canada, 1994 CanLII 117 (S.C.C.), [1994] 1 S.C.R. 311
which is:
a) they must show there is a serious issue to be tried;b) they must prove they will suffer irreparable harm if the injunction is not
granted; and
c) they must prove that the balance of convenience favors the granting ofthe injunction.
508692 N.B. LTD. v. Brodersen Realty Ltd., 2008 NBQB 101 (CanLII), at
para. 8
(1) They Must Show There Is A Serious Issue To Be Tried
33. Applicant will show there is a serious issue to be tried, thereby establishing principles
governing rights of New Brunswick residential tenants.
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34. The first test is a preliminary and tentative assessment of the merits of the case, but there is
more than one way to describe this first test, this description is provided in Manitoba (A.G.) v.
Metropolitan Stores Ltd., [1987] 1 SCR 110 (CanLII), atpara.32:
32. The first test is a preliminary and tentative assessment of the merits of the case,but there is more than one way to describe this first test. The traditional way consistsin asking whether the litigant who seeks the interlocutory injunction can make out aprima facie case. The injunction will be refused unless he can: Chesapeake andOhio Railway Co. v. Ball, [1953] O.R. 843,perMcRuer C.J.H.C., at pp. 854-55. TheHouse of Lords has somewhat relaxed this first test in American Cyanamid Co. v.Ethicon Ltd., [1975] l All E.R. 504, where it held that all that was necessary to meetthis test was to satisfy the Court that there was a serious question to be tried asopposed to a frivolous or vexatious claim. Estey J. speaking for himself and fiveother members of the Court in a unanimous judgment referred to but did not
comment upon this difference inAetna Financial Services Ltd. v. Feigelman, [1985]l S.C.R. 2, at pp. 9-10.
35. InPetro-Canada v. Les ImmeublesRobo, the Honourable Justice Raymond J. Guerette
stated:
The Law
There is a long line of cases supporting the test laid down in American
Cyanamid Co. v. Ethicon Ltd.,[1975] 1 All ER 504 which stated that, before
an interlocutory injunction could be issued, the applicant must meet three
requirements:
First, a preliminary assessment must be made on the merits of the case to
ensure that there is a serious question to be tried, one that is neither vexatious
nor frivolous. Also, the applicant must have a reasonable prospect of
succeeding at trial.
. . .
This test has been endorsed in R.J.R. Macdonald Inc. v. Canada (AttorneyGeneral),1994 CanLII 117 (S.C.C.), [1994] 1 S.C.R. 311 and also in Canada
East Manufacturing Inc. v. Harvey & Maritime Wire Co.,1996 CanLII 4872
(NB C.A.), [1996] 183 N.B.R. (2d) 293 (N.B.C.A.). Also,Metropolitan Stores(supra).
In R.J.R. Macdonald Inc. v. Canada (Attorney General), (supra), Justice
Sopinka, at p. 337 indicates that the first step ( serious questions to be tried)
carries no specific requirement.
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The threshold is a low one. The judge on the application must make apreliminary assessment of the case.
Petro-Canada v. Les ImmeublesRobo, 2002 NBQB 132 (CanLII), at
Reasons for Decision
36. The Rights of a mortgagee in New Brunswick exercising a power of sale under the
Property Act, balanced against a New Brunswick residential tenant in good standing, who is
sheltered from harm notwithstanding all other acts via the protection of the Residential
Tenancies Act, is yet to be considered settled law, in this Province.
37. There are serious questions which remain unresolved and have yet to be addressed,
requiring further interpretation by this Honorable Court regarding the priority of the Property
Act, supra, as opposed to the Residential Tenancy Act, supra, for the purpose of putting to rest
matters relevant to this case concerning termination of tenancy, furthermore, the aforementioned
matters currently at dispute in this matter have been resolved within the legal landscape of the
rest of Canada, yet remain unresolved in New Brunswick.
(2) They Must Prove They Will Suffer Irreparable Harm if the Injunction Is Not Granted
38. Due to the limitation period of this opportunity, the Applicant will suffer irreparable harm
if he is denied the interval in which to act.
39. In the case ofLeby Fixtures & Interiors Ltd. v. The Bank of Nova Scotia, 2006 NBCA 93
(CanLII), the Court of Appeal stated that it is the nature of the harm suffered not the magnitude
that makes the harm irreparable.
40. In Petro-Canada, supra, the Honourable Justice Raymond J. Guerette, stated:
Once satisfied that the application is neither vexatious nor frivolous, the
motions judge should proceed to consider the second and third tests, even ifof the opinion that the plaintiff is unlikely to succeed at trial. A prolonged
examination of the merits is generally neither necessary nor desirable.
Two exceptions apply to the general rule that a judge should not engage in
an extensive review of the merits. The first arises when the result of the
interlocutory motion will in effect amount to a final determination of the
action. This will be the case either when the right which the applicant seeks
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to protect can only be exercised immediately or not at all, or when the resultof the application will impose such hardship on one party as to remove any
potential benefit from proceeding to trial. Indeed Lord Diplock modified the
American Cyanamid principle in such a situation in N.W.L. Ltd. v.
Woods, [1979] 1 W.L.R. 1294, at p. 1307:
Where, however, the grant or refusal of interlocutory injunction
will have the practical effect of putting an end to the actionbecause the harm that will have been already caused to the losing
party by its grant or its refusal is complete and of a kind for
which money cannot constitute any worthwhile recompense, thedegree of likelihood that the plaintiff would have succeeded in
establishing his right to an injunction if the action had gone to
trial is a factor to be brought into the balance by the judge inweighing the risks that injustice may result from his deciding theapplication one way rather than the other.
As to the second test (irreparableharm), Lord Diplock, in AmericanCyanamid, (supra) stated at p. 510:
As to that, the governing principle is that the court should firstconsider whether if the plaintiff were to succeed at trial in
establishing his right to a permanent injunction he would be
adequately compensated by an award of damages for the loss he
would have sustained as a result of the defendants continuing todo what was sought to be enjoined between the time of the
application and the time of the trial. If damages in the measure
recoverable at common law would be adequate remedy and thedefendant would be in a financial position to pay them, no
interlocutory injunction should normally be granted, however
strong the plaintiffs claim appeared to be at that stage.
In R.J.R. Macdonald Inc. v. Canada (A.G.), (supra), Justice Sopinka citesBeetz J. inMetropolitan Stores as follows (at p. 340):
Beetz J. determined in Metropolitan Stores, at p. 128, that thesecond test consists in deciding whether the litigant who seeks the
interlocutory injunction would, unless the injunction is granted,
suffer irreparable harm.
At this stage the only issue to be decided is whether a refusal to
grant relief could so adversely affect the applicantsown interests
that the harm could not be remedied if the eventual decision on
the merits does not accord with the result of the interlocutoryapplication.
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Justice Sopinka then proceeds to outline various examples of what constitutes
irreparable harm at p. 342:
Irreparable refers to the nature of the harm suffered ratherthan its magnitude. It is harm which either cannot be quantified
in monetary terms or which cannot be cured, usually because oneparty cannot collect damages from the other. Examples of the
former include instances where one party will be put out ofbusiness by the courts decision (R.L. Crain Inc. v. Hendryreflex, (1988), 48 D.L.R. (4
th) 228 (Sask.Q.B.)); where one party
will suffer permanent market loss or irrevocable damage to itsbusiness reputation (American Cyanamid, supra); or where a
permanent loss of natural resources will be the result when a
challenged activity is not enjoined (MacMillan Bloedel Ltd. v.
Mullin, 1985 CanLII 154 (BC C.A.), [1985] 3 W.W.R. 577
(B.C.C.A.)).
Petro-Canada v. Les Immeubles Robo,supra, at Reasons for Decision
41. Irreparable refers to the nature of the harm suffered rather than its magnitude. It is harm
which cannot either be quantified in monetary terms or which cannot be cured, because there is
not any known compensation for such harm, one party cannot collect damages from the other.
42. The right which the Applicant seeks to protect can only be exercised immediately or not at
all.
(3)They Must Prove that the Balance of Convenience Favors the Granting of the Injunction
43. Applicant asserts that the balance of convenience favors the granting of the injunction, for
all parties concerned.
44. Please reference the following case regarding balance of convenience: Metz Farms 2 Ltd.
v. Committee against Hog Factories, 2001 NBCA 11 (CanLII), at para. 22.
[22] The third factor concerns the balance
of convenience. The public, including the appellant,
has the right to use public thoroughfares. The
respondents have no right to blockade or impede the
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flow of traffic on highways for the purpose of
interfering with or protesting the appellants farming
operation. The interim injunction specifically
preserves the lawful protest and assembly rights of
the respondents. Correlatively, the issuance of an
interlocutory injunction will not cause the
respondents any harm. Therefore, the balance of
convenience clearly favours the appellant.
45. Regarding the balance of convenience, the public, including
the Applicant, a Residential Tenant, has the right to make use
of public legislation, namely the N.B. Residential Tenancy Act,
design to ensure and promote the rights of New Brunswick
Residential Tenants and Landlords. The Respondents, both for
profit corporations have no right to eviscerate Residential
Tenant Rights for the purpose of their own private for profit
interests. The issuing of a interim injunction would have
specifically preserved the status quo, or position of the
parties at the time of filing this Application. The issuing of
an injunction would restore the status quo, or position of the
parties back to the time of filing this Application.
Correlatively, the issuance of an interlocutory injunction will
not cause the Respondents any harm. (note: need more here)
Therefore, the balance of convenience clearly favours the
Applicant.
46. In NBIP Forest Products Inc. v. Comits de gestion de Kedgwick, the Honourable Justice
Margaret E. L. Larlee, quoted the following:
Balance of convenience considered. Where any doubt exists as to the plaintiff's
right, or if his right is not disputed, but its violation is denied, the court, indetermining whether an interlocutory injunction should be granted, takes into
consideration the balance of convenience to the parties and the nature of the
injury which the defendant, on the one hand, would suffer if the injunction was
granted and he should ultimately turn out to be right, and that which the
plaintiff, on the other hand, might sustain if the injunction was refused and he
should ultimately turn out to be right. The burden of proof that the
inconvenience which the plaintiff will suffer by the refusal of the injunction is
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greater than that which the defendant will suffer, if it is granted, lies on the
plaintiff.
NBIP Forest Products Inc. v. Comits de gestion de Kedgwick, 1993CanLII
3298 (NB Q.B.), at p. 3
47. In Petro-Canada, supra, the Honourable Justice Raymond J. Guerette, stated:
The third test (Balance of Convenience) has already been set out (above) by
Beetz J. in Metropolitan Stores as involving a determination of which of the
two parties is likely to suffer the greater harm if the injunction is granted,
pending a decision on the merits. Numerous factors came into play in this
determination and they will vary in each case. Lord Diplock in American
Cyanamid v. Ethicon (supra), at p. 511.
It is where there is doubt as to the adequacy of the respective
remedies in damages available to either party or to both, that thequestion of balance of convenience arises. It would be unwise toattempt even to list all the various matters which may need to be
taken into consideration in deciding where the balance lies, let
alone to suggest the relative weight to be attached to them. Thesewill vary from case to case. Where other factors appear to be
evenly balanced it is a counsel of prudence to take such measures
as are calculated to preserve the status quo. [Emphasis added.]
Petro-Canada v. Les ImmeublesRobo,supra, at Reasons for Decision
48. The burden of proof, in this matter lies with the applicant, that the inconvenience which
applicant will suffer by refusal of the injunction is greater than that which the respondent could
possible suffer, if the injunction as requested by the applicant is granted. Consequently the
applicant will be barred by estoppel by judgment, for that reason irreparable harm to the
Applicant will result if the requested injunction is not granted, whereas the issuance of an
interlocutory injunction will not cause the Respondents any harm. Therefore, the balance of
convenience clearly favors the issuance of an interlocutory injunction.
49. The third test (Balance of Convenience) is set out as involving a determination of which of
the two parties are likely to suffer the greater harm if the injunction is granted. In this case if the
injunction is not granted, the Applicant will suffer irreparable harm, while no harm will befall
the Respondents. The right which the Applicant seeks to protect can only be exercised
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immediately or not at all. The result of granting the interlocutory injunction will impose no
hardship or prejudice on the Respondents.
(4) Conclusion
50. The Applicant asserts there are serious issues at law to be tried, which must finally be
resolved as the lack of constitutionality of two challenged subject statutes, namely the
Residential Tenancies Act, supra and the Property Act, supra, which are appropriate and serious
issues for this Honorable Court to consider. The Charterrights of New Brunswick residential
tenants have been violated despite adequate legislation to prevent this occurrence. The subject
rights violations of residential tenants result from the current legislation not being worded
strongly enough to sufficiently protect them. Unless this matter is frivolous or vexatious on itsmerits, or the constitutionality of the statute is a pure question of law, a judge on a motion for
relief must, as a general rule, consider the second and third stages of theMetropolitan Stores test.
51. The Applicant, who is a long-term tenant and has continually paid monthly rent for seven
years to the Landlord, will suffer irreparable harm if this requested time-sensitive injunction in
which the Applicant may act expires. In light of the uncertain state of the law regarding the
award of damages for a Charterbreach, it will in most cases be impossible for a judge on an
interlocutory application to determine whether adequate compensation could ever be obtained at
trial. Therefore, until the law in this area has developed further, it is appropriate to assume that
the financial damage which will be suffered by an applicant following a refusal of relief, even
though nevertheless incapable of quantification, constitutes irreparable harm. Not only will the
Applicant suffer irreparable harm if the herewithin requested injunction is not granted, but if
subject Orders are acted upon, the effect would be irreparable prejudice to the integrity of the
judicial system of New Brunswick.
52. The Applicant asserts that the balance of convenience favors the granting of the injunction
and further believes it is critical in the interest of justice, as in this case, that the other side must
be heard, Audi alterampartem. For this purpose, the Applicant must be allowed to provide an
argument considering the Charterapplication in the relevant matter, the absence of which could
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be fatal to the Applicants cause resulting in a miscarriage of justice. In addition to the damage
each party alleges it will suffer, the interest of the public must be taken into account. These
public interest considerations will carry less weight in exemption cases than in suspension cases.
When the nature and declared purpose of legislation is to promote the public interest, a motions
court should not be concerned whether the legislation actually has such an effect. It must be
assumed to do so. In order to overcome the assumed benefit to the public interest arising from
the continued application of the legislation, the Applicant, who relies on the public interest, must
demonstrate that the suspension of the legislation would itself provide a public benefit.
53. In considering the granting of an interlocutory injunction, therefore, suspending the
operation of an enacted but challenged and impugned law, it is presumed that the law will
produce a public good. This subject matter before the Court is a clear case justifying an
interlocutory injunction against the enforcement of a law on grounds of alleged
unconstitutionality.
54. There is no onus on an applicant for an interlocutory stay or impounding order to show that
granting the stay or impounding order protects the public interest. As a general rule, all an
applicant need show is that the public interest is not harmed by the order. The Applicant argues
not only his own private interest, but also that the public interest will be hurt by the refusal of a
stay.
55. A properly exercised interlocutory injunction will preserve and/or restore the status quo.
The granting of an interlocutory injunction will not give the Respondent his remedy, only
preserve the parties standing until the Charterissues are resolved. In this case, since the alleged
remedy the Respondents are seeking is so closely tied to the Charter infringements, the
interlocutory injunction would stay the remedy that the Respondents are seeking, which is
vacating the Applicant from his residential leasehold of the Property until the final disposition of
the Charterreview, otherwise the subject relief of vacating the Applicant would be premature
and a violation of the Applicants rights as provided for within the Charter.
56. A judicial stay of proceedings has been recognized as being an extraordinary remedy that
should only be granted in the "clearest of cases" and the Applicant asserts that a stay is
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appropriate in circumstances where prejudice to his right to make full answer and defence cannot
be remedied, such as in this case, or where irreparable prejudice to the integrity of the judicial
system would result if the action were continued. These two factors are alternatives and the
presence of either justifies the exercise of discretion in favour of a stay.
57. The October 20, 2009, Order to Vacate the Defendant, further, the October 28, 2011, Order
declaring a termination of the Defendants Tenancy together with an Order to Vacate, and a
second October 28, 2011, Order declaring the priority of the mortgage together with an Order to
Vacate shall not be enforced by the Royal Bank or 501376 N.B. Ltd., and alternatively may be
stayed because the aforementioned subject Orders were issued based on non-Chartercompliant,
impugned legislation. Therefore the subject Orders are consequentially lacking jurisdiction and
reasonably a legal liability to enforce, as a further matter if acted upon, they would causeirreparable prejudice to the integrity of the New Brunswick judicial system.
(B) Section 7 CharterAnalysis
58. Section 7 of the Charterprovides Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accordance with the principles of
fundamental justice.
59. The traditional approach to the analysis proceeds in two steps as described by La Forest J.
inR. v. Beare;R. v. Higgins, which is as follows:
To trigger its operation there must first be a finding that there has been a
deprivation of the right to "life, liberty and security of the person" and,
secondly, that that deprivation is contrary to the principles of fundamental
justice.
R. v. Beare;R. v. Higgins, [1988] 2 S.C.R. 387 (CanLII) at para.28
60. In Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 (CanLII),at
para. 12 McLachlin C.J. added the qualification that the issue in relation to the first step is
whether there has been or could be a deprivation of the right to life, liberty and security of the
person.
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61. The traditional approach embodies a conception that section 7 of the Charter contains
negative rights of non-interference and is invoked by a specific government action. There is also
a school of thought, as exemplified in the dissent of ArbourJ. in Gosselin v. Quebec (Attorney
General), 2002 SCC 84 (CanLII), that properly construed section 7, including a positive
dimension that may in certain circumstances impose positive obligations upon government.
62. Pursuant to this traditional analysis, a claimant must therefore first establish that there has
been, or could be, a deprivation of life, liberty or security of the person.
(1)Does this Claim Follow Within the Scope of Section 7?
(i)Is There Sufficient State Action?
63. It is now clear that the scope of section 7 of the Charteris not limited to purely criminal
or penal matters, as in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44
(CanLII), at paras. 45 and 46:
45 there is no longer any doubt that s. 7 of the Charteris not confined to the penalcontext. This was most recently affirmed by this Court in New Brunswick (Minister ofHealth and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46,
where Lamer C.J. stated that the protection of security of the person extends beyond thecriminal law (at para. 58). He later added (at para. 65):
. . . s. 7is not limited solely to purely criminal or penal matters. There are other
ways in which the government, in the course of the administration of justice, can
deprive a person of their s. 7rights to liberty and security of the person
46 Section 7 can extend beyond the sphere of criminal law, at least
where there is state action which directly engages the justice system and its
administration
64.
In Gosselin, McLachlin C.J. discussed the scope of section 7 as follows at:77 the dominant strand of jurisprudence on s. 7 sees its purpose as guardingagainst certain kinds of deprivation of life, liberty and security of the person, namely,those that occur as a result of an individuals interaction with the justice system and itsadministration: [T]he justice system and its administration refers to the statesconduct in the course of enforcing and securing compliance with the law ... This viewlimits the potential scope of life, liberty and security of the person by asking whom orwhat s. 7 protects against. Under this narrow interpretation, s. 7 does not protect against
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all measures that might in some way impinge on life, liberty or security, but only againstthose that can be attributed to state action implicating the administration of justice:
Gosselin v. Quebec (Attorney General), 2002 SCC 84 (CanLII) para. 77
(ii)Is the State Action the Cause of the Deprivation?
65. In summary, the Applicant believes that the provisions at issue have caused a deprivation,
such that section 7 of the Charteris engaged. See Hill v. Church of Scientology of Toronto,
[1995] 2 S.C.R. 1130 (CanLII), atpara. 92, it is appropriate for the courts to make such
incremental revisions to the common law as may be necessary to have it comply with the values
enunciated in the Charter.
66. Each level of democratic government is entitled to deference in the policy choices it
makes, especially when dealing with significant and complex issues. It is, however, the
responsibility of government, in making these decisions, to act in conformity with the
constitution. As McLachlinC.J. stated, in Charkaoui, supra, atpara. 1, Yet in a constitutional
democracy, governments must act accountably and in conformity with the Constitution and the
rights and liberties it guarantees.
67. This case is about the constitutionality of portions of New Brunswicks provincial statutes.
The determination of this issue falls squarely within the role and responsibility of the courts.
WithinR. v. Morgentaler, Wilson, L.explained the position of the individual within society as
follows:
interpretation should be, , a generous rather than a legalistic one, aimed at fulfilling
the purpose of the guarantee and securing for individuals the full benefit of the
Charter's protection.
We are invited, therefore, to consider the purpose of the Charterin general and ofthe right to liberty in particular.
The Charteris predicated on a particular conception of the place of the individual in
society. An individual is not a totally independent entity disconnected from the society
in which he or she lives. Neither, however, is the individual a mere cog in an impersonal
machine in which his or her values, goals and aspirations are subordinated to those of
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the collectivity. The individual is a bit of both. The Charterreflects this reality by leaving
a wide range of activities and decisions open to legitimate government control while at
the same time placing limits on the proper scope of that control. Thus, the rights
guaranteed in the Chartererect around each individual, metaphorically speaking, an
invisible fence over which the state will not be allowed to trespass. The role of the
courts is to map out, piece by piece, the parameters of the fence.
The Charterand the right to individual liberty guaranteed under it are inextricably
tied to the concept of human dignity.
If a person were deliberately denied the opportunity of self-respect and that
contentment, he would suffer deprivation of his essential humanity.
Canadian society is to be free and democratic. The Court must be guided by the
values and principles essential to a free and democratic society which I believe embody,
to name but a few, respect for the inherent dignity of the human person, commitment
to social justice and equality
The idea of human dignity finds expression in almost every right and freedom
guaranteed in the Charter.
R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30,at page 164, 165 and 166
68. In any event, choices of the legislature that involve complex issues of policy are not
immune from review. In Vriend v. Alberta, [1998] 1 S.C.R. 493 (CanLII), Iacobucci J. explained
the relationship between the legislature and the court that has been created by the passage of theCharter, at paras. 134, 135, 138 and 142.
69. The Charter is predicated on a particular conception of the place of the individual in
society. The Charterreflects this reality by leaving a wide range of activities and decisions open
to legitimate government control, while at the same time placing limits on the proper scope of
that control. Therefore the rights guaranteed in the Charter erect around each individual an
invisible fence, metaphorically speaking, over which the state will not be allowed to trespass. In
the matter presently before the Court, the Applicant asserts that the Respondents, through the
impugned legislation, have trespassed on the Applicants Charterprotected rights. Simply put,
the fact that the matter engages complex policy decisions does not immunize the legislation from
review by the courts pursuant to the Charter.
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(2)Is there a Deprivation of One of the Protected Rights?
70. In Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, at
p. 204, Justice Wilson emphasized that there are three distinct elements to the s. 7 right, that "life,
liberty, and security of the person" are independent interests, each of which must be given independent
significance by the Court . It is therefore possible to treat only one aspect of the first part of s. 7 before
determining whether any infringement of that interest accords with the principles of fundamental
justice. Please further reference the following also from Singh:
41. It seems to me that in attempting to decide whether the appellants have been deprived
of the right to life, liberty and security of the person within the meaning of s. 7 of the Charter, we
must begin by determining what rights the appellants have
42. We must therefore ask ourselves whether the deprivation of these rights constitutes a
deprivation of the right to life, liberty and security of the person within the meaning of s. 7 of the
Charter. I think we must recognize that the "right" which is articulated in s. 7 has three elements:
life, liberty and security of the person. As I understand the "single right" theory, it is not suggested
that there must be a deprivation of all three of these elements before an individual is deprived of
his "right" under s. 7. In other words, I believe that it is consistent with the "single right" theory
advanced by counsel to suggest that a deprivation of the appellants' "security of the person", for
example, would constitute a deprivation of their "right" under s. 7, whether or not it can also be
said that they have been deprived of their lives or liberty. Rather, as I understand it, the "single
right" theory is advanced in support of a narrow construction of the words "life", "liberty" and
"security of the person" as different aspects of a single concept rather than as separate concepts
each of which must be construed independently.
43. Certainly, it is true that the concepts of the right to life, the right to liberty, and the right
to security of the person are capable of a broad range of meaning.
Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177
paragraph 41, 42 and 43
(i)Liberty
71. The concept of liberty within the scope of section 7 of the Charter was defined by
WilsonJ., in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30,at pp. 164 to 166.
72. An aspect of the respect for human dignity, upon which the Charteris founded, is the right
to make fundamental personal decisions without interference from the state. This right is a
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critical component of the right to liberty. Liberty, as was noted is a phrase capable of a broad
range of meaning, including housing in Singh v. Minister of Employment and Immigration:
Like "liberty", the phrase "security of the person" is capable of a broad range of meaning.The right to security of the person means not only protection of one's physical integrity,
but the provision of necessaries for its support... the Commission went on to describe theprovision of necessaries Everyone has the right to a standard of living adequate for the
health and wellbeing of himself and of his family, including food, clothing, housing
Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1
S.C.R. 177, paragrapgh 46:
73. In my view this right grants the individual a degree of autonomy in making decisions of
fundamental personal importance. For the Applicant to be able to decide what to do and how to
do it, to carry out one's own decisions and accept their consequences, seems essential to one's
self-respect as a human being, and essential to the possibility of that contentment, which are
fundamental goods for human beings and the worth of life itself, being on condition of having
or striving for them. The Applicant believes he is being deliberately denied the opportunity of
self-respect and associated contentment; therefore as a consequence, the Applicant is suffering
deprivation of his essential humanity. The states lack of protection and security of tenure to
residential tenants, in favour of a mortgagees interest, is a deprivation of liberty within the scope
of section 7.
(ii)Security of the Person
74. Security of the person has been held to include the protection of physical and
psychological integrity. In Rodriguez v. British Columbia (Attorney General), SopinkaJ. held
that:
In my view, then, the judgments of this Court in Morgentaler can be seen to
encompass a notion of personal autonomy involving, at the very least, control
over one's bodily integrity free from state interference and freedom from state-
imposed psychological and emotional stress. In Reference re ss. 193 and195.1(1)(c) of theCriminal Code (Man.), supra, Justice Lamer (as he then was)
also expressed this view, stating at p. 1177 that "[s]ection 7 is also implicated
when the state restricts individuals' security of the person by interfering with,
or removing from them, control over their physical or mental integrity". There
is no question, then, that personal autonomy, at least with respect to the right
to make choices concerning one's own body, control over one's physical and
psychological integrity, and basic human dignity are encompassed within
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security of the person, at least to the extent of freedom from criminal
prohibitions which interfere with these.
Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519
(CanLII), at pp. 587 and 588
(C) Is the Deprivation in Accordance with the Principles of Fundamental Justice?
(1)Overview
75. The next step in the analysis is to determine if the interference with the life, liberty or
security of the person is contrary to the principles of fundamental justice.
76. The Supreme Court of Canada in R. v. Malmo-Levine; R. v. Caine, the Court explained
how a rule or principle would constitute a principle of fundamental justice for the purposes of
s. 7 as follows:
The requirement of general acceptance among reasonable people enhances thelegitimacy of judicial review of state action, and ensures that the values against whichstate action is measured are not just fundamental in the eye of the beholder only:Rodriguez, at pp. 607 and 590 (emphasis in original). In short, for a rule or principle toconstitute a principle of fundamental justice for the purposes of s. 7, it must be a legalprinciple about which there is significant societal consensus that it is fundamental to theway in which the legal system ought fairly to operate, and it must be identified with
sufficient precision to yield a manageable standard against which to measure deprivationsof life, liberty or security of the person.
219 The s. 7 analysis requires the appellants to demonstrate a deprivation ofliberty that is not in accordance with the principles of fundamental justice. Indeed, asperIacobucci J. inR. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 38, thes. 7 analysis involves three stages:
The first question to be resolved is whether there exists a real or imminentdeprivation of life, liberty, security of the person, or a combination of theseinterests. The second stage involves identifying and defining the relevant principle
or principles of fundamental justice. Finally, it must be determined whether thedeprivation has occurred in accordance with the relevant principle . . . .
R. v. Malmo-Levine;R. v. Caine, 2003 SCC 74 (CanLII) at para.113 and 219.
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77. In Canadian Foundation for Children, Youth and the Law v. Canada the Court has
established three criteria that must be satisfied in order for a rule or principle to qualify as a
principle of fundamental justice:
8 Jurisprudence on s. 7 has established that a principle of fundamentaljustice must fulfill three criteria: First, it must be a legal principle. This serves twopurposes. First, it provides meaningful content for the s. 7 guarantee; second, it avoidsthe adjudication of policy matters: Second, there must be sufficient consensus thatthe alleged principle is vital or fundamental to our societal notion of justice: Theprinciples of fundamental justice are the shared assumptions upon which our system ofjustice is grounded. They find their meaning in the cases and traditions that have longdetailed the basic norms for how the state deals with its citizens. Society views them asessential to the administration of justice. Third, the alleged principle must be capable ofbeing identified with precision and applied to situations in a manner that yieldspredictable results. Examples of principles of fundamental justice that meet all three
requirements include the need for a guilty mind and for reasonably clear laws.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General),
2004 SCC 4 (CanLII), paragraph 878. The above cases have established three criteria that must be satisfied in order for a rule or
principle to qualify as a principle of fundamental justice:
a) The rule must be a legal principle;
b) There must be a significant societal consensus that it is fundamental to the way inwhich the legal system ought fairly to operate; and
c) The rule must be capable of being identified with sufficient precision to yield amanageable standard.
79. In Cunningham v. Canada, McLachlinJ., as she then was, noted that a consideration of the
principles of fundamental justice requires consideration of the fairness of the balance struck
between the interests of the individual and the protection of society, stating:
The principles of fundamental justice are concerned not only with the interestof the person who claims his liberty has been limited, but with the protection of
society. Fundamental justice requires that a fair balance be struck between
these interests, both substantively and procedurally....
Cunningham v. Canada, [1993] 2 S.C.R. 143 (CanLII) at pp. 151 and 152
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80. The Court returned to the theme of balancing in relation to the principles of fundamental
justice in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3
(CanLII)atparas. 45 and 47.
81. While recognising the balancing of both individual and societal interests that forms the
analysis of the principles of fundamental justice, the Supreme Court of Canada has noted that it
is important that the consideration of those principles under section 7 of the Charter not be
conflated with the section 1 analysis, Reference: McLachlin C.J. in Charkaoui, supra, at paras.
21 and 22.
82. Further reference: R. v. Malmo-Levine; R. v. Caine, supra, GonthierJ. and Binnie J., the
Court explains, it is not for the state to thwart the exercise of the accuseds right by attempting to
bring societal interests into the principles of fundamental justice and to thereby limit an
accuseds s. 7 rights. :
Once the principle of fundamental justice has been elucidated, however, it is not withinthe ambit of s. 7 to bring into account such societal interests as health care costs.Those considerations will be looked at, if at all, under s. 1. R. v. Swain, 1991 CanLII104 (SCC),...:
It is not appropriate for the state to thwart the exercise of the accuseds right byattempting to bring societal interests into the principles of fundamental justice and to
thereby limit an accuseds s. 7 rights. Societal interests are to be dealt with under s. 1 of
the Charter, where the Crown has the burden of proving that the impugned law is
demonstrably justified in a free and democratic society.
R. v. Malmo-Levine; R. v. Caine,supra, Gonthier J. and Binnie J., at paragraph 98
83. In the context of interpreting section 7 of the Charter, it has been held that international
human rights instruments can inform a courts understanding of the principles of fundamental
justice. Reference:Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (CanLII), at para. 79.
84. This position was affirmed in Suresh, supra, atparagraph 46.
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85. The principles of fundamental justice are concerned not only with the interests of the
person who claims his liberty has been limited, but with the protection of society. Fundamental
justice requires that a fair balance be struck between these interests, both substantively and
procedurally. The principles of fundamental justice are to be found in the basic tenets of our
legal system, as they do not lie in the realm of general public policy, but in the inherent domain
of the judiciary as guardian of the justice system. Unlike section 1, section 7 is not concerned
with whether a limit on life, liberty or security of the person is justified, but with whether the
limit has been imposed in a way that respects the principles of fundamental justice. In the matter
before the Court, balancing the interests of the state and the individual is required.
(1)Application in Non-Criminal Legislation
86. The reasons of Justices La Forest, LHeureux-Dub and McLachlin, as she then was, in
Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 (CanLII), provides very useful guidance with
respect to the approach to be taken to the issue of the principles of fundamental justice in
considering legislation that does not engage the criminal law.
87. With respect to section 7 of the Charter, La Forest J. rejected the argument that the nature
of the claim was in relation to economic rights beyond the scope of the Charter. La Forest J.
concluded that the right to choose where to establish ones home falls within the scope of theliberty interest protected by section 7, as part of the irreducible sphere of personal autonomy
where individuals may make inherently private choices free from state interference. In reaching
this conclusion, La Forest J. had regard to the fact that the right to choose where to establish
one's home is afforded explicit protection in the International Covenant on Civil and Political
Rights, Can. T.S. 1976 No. 47, accession by Canada on May 19, 1976.
88. With respect to the principles of fundamental justice, La Forest J. concluded it was
necessary to weigh the right at issue against the interests pursued by the state in causing the
infringement.
89. The right to choose where to call home falls within the scope of the liberty interest
protected by section 7 of the Charteras part of the irreducible sphere of personal autonomy,
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where individuals may make inherently private choices free from state interference. This right is
afforded explicit protection in the International Covenant on Civil and Political Rights, supra,
Part 1, Article 1, as follows:
1. All peoples have theright of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, socialand cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth
and resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.
3. The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and Trust
Territories, shall promote the realization of the right of self-determination,and shall respect that right, in conformity with the provisions of the Charter of
the United Nations.
International Covenant on Civil and Political Rights,supra, at Part I,Article 1
90. The economic benefits to a mortgagee, is not a sufficient interest to override the
constitutional guarantee of freedom of choice, further this alleged benefit does not survive
constitutional scrutiny. The right to choose where to call home falls within the scope of the
liberty interest protected by section 7 of the Charteras part of the irreducible sphere of personal
autonomy. The result is that the infringement created by the subject impugned statutes does not
conform to the principles of fundamental justice.
(3) Overbreadth
91. One principle of fundamental justice that has been identified by the Supreme Court of
Canada is that restrictions on life, liberty and security of the person, must not be more broadly
framed than necessary to achieve a legislative purpose, as discussed in Godbout, supra above. In
R. v. Heywood, Justice Cory, for the majority, described the principle of overbreadth as follows:
Overbreadth analysis looks at the means chosen by the state in relation to its
purpose. In considering whether a legislative provision is overbroad, a court
must ask the question: are those means necessary to achieve the State
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objective? If the State, in pursuing a legitimate objective, uses means which are
broader than is necessary to accomplish that objective, the principles of
fundamental justice will be violated because the individual's rights will have
been limited for no reason. The effect of overbreadth is that in some
applications the law is arbitrary or disproportionate.
R. v. Heywood, [1994] 3 S.C.R. 761 (CanLII) at pp. 792 and 793
(4)Arbitrary Provisions
92. Another principle of fundamental justice is that a law must not operate to limit the rights
protected by section 7 of the Charterin an arbitrary manner. In Chaoulli v. Quebec, McLachlin,
MajorJ. stated:
129 It is a well-recognized principle of fundamental justice that laws should notbe arbitrary: see, e.g.,Malmo-Levine, at para. 135;Rodriguez, at p. 594. The state is notentitled to arbitrarily limit its citizens rights to life, liberty and security of the person.
130 A law is arbitrary where it bears no relation to, or is inconsistent with, theobjective that lies behind [it]. To determine whether this is the case, it is necessary toconsider the state interest and societal concerns that the provision is meant to reflect:Rodriguez, at pp. 594-95.
131 In order not to be arbitrary, the limit on life, liberty and security requires notonly a theoretical connection between the limit and the legislative goal, but a real
connection on the facts. The onus of showing lack of connection in this sense rests withthe claimant. The question in every case is whether the measure is arbitrary in the senseof bearing no real relation to the goal and hence being manifestly unfair. The moreserious the impingement on the persons liberty and security, the clearer must be theconnection. Where the individuals very life may be at stake, the reasonable personwould expect a clear connection, in theory and in fact, between the measures that puts lifeat risk and the legislative goals.
Chaoulli v. Quebec (Attorney General), 2005 SCC 35 (CanLII), [2005] 1 SCR 791,at
paragraph 129 to 131
93. InRodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519,supra, at pp.594 and 595 Sopinka J. stated:
Where the deprivation of the right in question does little or nothing to enhance
the state's interest (whatever it may be), it seems to me that a breach of
fundamental justice will be made out, as the individual's rights will have been
deprived for no valid purpose.
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94. Please Note: in this Charter Application the deprivation of the right in question,
which is security of residential tenure, does nothing to enhance the state's interest, the
deprivation of the right only furthers the private financial interests of Respondents
Mortgagee Royal Bank and a tentative Mortgagee Deed purchaser 501376, N.B. Ltd.
Considering Rodriguez v. British Columbia, supra, a breach of fundamental justice is
prima facia and in fact made out, as the individual's rights will have been deprived
for no valid purpose.
(5)Analysis
95. Please see paragraphs 57 through 72 of the Applicants Form 16D Application dated May
31, 2012.
(D) Section 15(1)
96. Pursuant to subsection 15(1) of the Charter, it is blatant discrimination that the
Applicant as a residential tenant could have Charterprotected rights stripped in favour of the
financial interests of a mortgagee. Therefore to allow this element of discrimination to stand is to
confirm a different standard for the Applicant in this matter, who has Charterrights violated by
inadequate protection of the Residential Tenancies Act, supra, compared to other residential
tenants who are not pressured and pursued by a mortgagee, which therefore effectively demeans
the Applicant's human dignity. In Law v. Canada (Minister of Employment and Immigration),
[1999] 1 S.C.R. 497(CanLII) at paras. 21 to 88, also in R. v. Dyment, [1988] 2 S.C.R. 417
(CanLII), La Forest J. states at paras. 15 to 23, From the earliest stage of Charter
interpretation, this Court has made it clear The function of the Charter is to provide ... for
the unremitting protection of individual rights and liberties.
97. Pursuant to subsection 15(1) of the Charter, it is blatant discrimination that a residential
tenant could have their Charterrights violated by the inadequate protection of the Residential
Tenancies Act, supra.
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98. Therefore to allow this element of discrimination to stand is to confirm a different standard
for the Applicant in this matter, compared to every other residential tenant who is otherwise
protected by the Residential Tenancies Act, supra, it is inescapable therefore, that the effect is
demeaning to the Applicant's human dignity, contrary to the Charterprotection of individual
rights and liberties.
99. In combating discrimination, subsection 15(1) of the Charter prevents discriminatory
distinctions that impact adversely on members of groups identified by subsection 15(1).
100. A court that is called upon to determine a discrimination claim under subsection 15(1)
should make the following three broad inquiries:
Test1 - Has there been differential treatment? The answer in this case is yes.
Test 2 - Is the differential treatment based on an enumerated or analogous ground? Theanswer in this case is again, yes. Analogous grounds are comparable in certain respects,typically in a way that makes clearer the nature of the things compared.
Test 3 - Is there discrimination? Again, the answer is yes in this matter. Discrimination istreatment or consideration in favor of, or against, a person based on the group, class, orcategory to which that person or thing belongs rather than on individual merit. Does thedifferential treatment discriminate by imposing a burden upon, or withholding a benefit
from the claimant in a manner which reflects the stereotypical application of presumedgroup or personal characteristics, or which otherwise has the effect of perpetuating orpromoting the view that the individual is less capable or worthy of recognition or value asa human being or as a member of Canadian society, equally deserving of concern,respect, and consideration? Yes, the discrimination does marginalize, ignore, and devaluea residential tenants sense ofself-respectand self-worth.
101. The Applicant has experienced unfair treatment based on the actions of the Royal Bank
and 501376 NB Ltd., by dragging the Applicant through the Courts of New Brunswick.
Reference: R. v. Dyment, supra, La Forest J. stated regarding the right to privacy and its
relationship to human dignity from paragraphs 15 to paragraph 23 From the earliest stage of
Charter interpretation, this Court has made it clear that the rights it guarantees must be
interpreted generously, and not in a narrow or legalistic fashion; The function of the Charter,
is to provide ... for the unremitting protection of individual rights and liberties ."
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102. In general terms, the purpose of subsection 15(1) is to prevent the violation of essential
human dignity and freedom through the imposition of disadvantage, stereotyping, or political or
social prejudice, and to promote a society in which all persons enjoy equal recognition at law as
human beings or as members of Canadian society, equally capable and equally deserving of
concern, respect and consideration. The existence of a conflict between the purpose or effect of
an impugned bylaw and the purpose of subsection 15(1) of the Charter is essential in order to
found a discrimination claim.
103. I have not received equal treatment before and under the law, as guaranteed
under subsection 15(1), but also that the law has a differential impact on me in the protection or
benefit accorded by it; in addition, the legislative impact of the rights supposed to be guaranteed
by theResidential Tenancies Act, supra, is discriminatory.
104. Please see paragraphs 73 to 100 of the Applicants Charter Application FORM 16 D; dated
May 31, 2012.
(E) Section 1
105. Any justification, any consideration of the reasonableness of the enactment; indeed, any
consideration of factors which could justify the discrimination and support the constitutionality
of the impugned enactment would take place under section 1 of the Charter.
(1) Overview
106. The next issue to be addressed is whether the Province of New Brunswick, can establish
that the impugned legislation is justified pursuant to section 1 of the Charter, which provides:
The Canadian Charter of Rights and Freedoms guarantees the rights andfreedoms set out in it subject only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society.
The Constitution Act, supra, s.1107. In Canada (Attorney General) v. JTI-Macdonald Corp., McLachlin C.J. set out the test for
whether a provision is justified pursuant to section 1 of the Charteras follows:
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This engages what in law is known as the proportionality analysis. Most
modern constitutions recognize that rights are not absolute and can be limited
if this is necessary to achieve an important objective and if the limit is
appropriately tailored, or proportionate. ... This Court in Oakes set out a test
of proportionality that mirrors the elements of this idea of proportionality -
first, the law must serve an important purpose, and second, the means it uses toattain this purpose must be proportionate. Proportionality in turn involves
rational connection between the means and the objective, minimal impairment
and proportionality of effects. As the Honourable Chief Justice Dickson stated
in Oakes, at p. 139:
There are, in my view, three important components of a
proportionality test. First, the measures adopted must be carefully
designed to achieve the objective in question. They must not be
arbitrary, unfair or based on irrational considerations. In short,
they must be rationally connected to the objective. Second, the
means, even if rationally connected to the objective in this firstsense, should impair "as little as possible" the right or freedom in
question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there
must be a proportionality between the effects of the measures which
are responsible for limiting the Charter right or freedom, and the
objective which has been identified as of "sufficient importance".
[Emphasis deleted.]
Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R.610 (CanLII), at para. 36
108. It has been held that infringements of the rights under section 7 of the Charter, which have
been found to be contrary to the principles of fundamental justice, will only be justified in rare
circumstances. For example, inReB.C.MotorVehicleAct, LamerJ. stated:
Section 1 may, for reasons of administrative expediency, successfully come to
the rescue of an otherwise violation of section 7, but only in cases arising out
of exceptional conditions, such as natural disasters, the outbreak of war,
epidemics, and the like.
ReB.C.MotorVehicleAct, supra, at p. 518
109. In Charkaoui, supra, McLachlin C.J. quoted this statement of LamerJ. and stated further:
The rights protected by s. 7 life, liberty, and security of the person are
basic to our conception of a free and democratic society, and hence are not
easily overridden by competing social interests. It follows that violations of the
principles of fundamental justice, specifically the right to a fair hearing, are
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difficult to justify under s. 1: G. (J.). Nevertheless, the task may not be
impossible, particularly in extraordinary circumstances where concerns are
grave and the challenges complex.
Charkaoui v. Canada (Citizenship and Immigration),supra, at para. 66
110. The rights protected by section 7 life, liberty, and security of the person, are basic to our
conception of a free and democratic society, and hence are not easily overridden by competing
social interests. It follows that violations of the principles of fundamental justice are difficult to
justify under section 1, especially when the competing social interests appear to be nothing more
than a financial gain for a mortgagee, deriving a monetary gain from a financial investment
instrument, making a profit based on the risk of loss, consequentially taking advantage of
someone, who would otherwise be protected by the Charterfrom such an arbitrary infringementof their rights.
(2)Important Objecti