Intended Appellant's Submission Book 1. Leave to Appeal to the COURT OF APPEAL OF NEW BRUNSWICK

7/30/2019 Intended Appellant's Submission Book 1. Leave to Appeal to the COURT OF APPEAL OF NEW BRUNSWICK

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Court of Appeal File Number: 142 -11- CA

(Court File Number: M/C/0642/09)

IN THE COURT OF APPEAL OF NEW BRUNSWICK

BETWEEN:

ANDRE MURRAY

INTENDED APPELLANT (Defendant)

-and-

ROYAL BANK OF CANADA & 501376 N.B.

Ltd., a body corporate,

INTENDED RESPONDENT (Plaintiffs)

Intended Appellants Submission

For Motion for Leave to Appeal

Filed by self represented

APPELLANT

ANDRE MURRAY

Intended Appellant

(The Defendant)

Self Represented

Andre Murray

31 Marshall Street,

Fredericton, New Brunswick,E3A 4J8

Telephone Number:

E-mail address:andremurraynow@

gmail.com

Intended Respondent

(The Plaintiffs)

George LeBlanc Solicitor of Record for

ROYAL BANK OF CANADA &

501376 N.B. Ltd., a body corporate

Name of solicitors firm: Cox & Palmer,Address for service: Blue Cross Centre,

Suite 502, 644 Rue Main Street,

Moncton NB E1C 1E2E-mail address: gleblanc@

coxandpalmer.comTelephone number: Main 506 856 9800Telephone number: Direct 506 382 4529

Fax 506 856 8150

Web coxandpalmer.com


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i

Intended Appellants Submission

For Motion for Leave to Appeal

Appellants Brief index

Index

Page

IINTENDED APPELLANTS SUBMISSION(a) a succinct outline of the facts the party intends to establish____________

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

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

and citation of relevant statutory provisions and leading authorities________

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

Schedule A

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

Schedule B

The text of all relevant provisions of Statutes or Regulations _____________

1

14

15

131

133

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A.Facts

(a) a succinct outline of the facts the party intends to establish,1. October 19, 2011, Andr Murray (self litigant) received a telephone call at

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

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

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

Dionne therefore requiring that I Andr Murray: you must attendCourt of

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

Zol R Dionne.

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

allegedly an employee at Court of Queens Bench Moncton Client Services

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

Justice Zol R Dionne please note that I Andr Murray did of course enquire

from this unexpected caller from Court of Queens Bench Moncton Client

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

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

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

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

Dionne October 21, 2011.

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

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

and or is applicable to five Motions, moreover, a decision which was toencompass all five Motion of seven outstanding Motions before

Honorable Justice Zoel R. Dionne.

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

therefore all Motions filed resulting from the original year 2009 NOTICE OF

ACTION and STATEMENT OFCLAIM.

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

furthermore did receive (same day) a copy of the written Decision of

Honorable Justice Zoel R. Dionne, Dated October 21, 2011, Court File

Number: M/C/0642/09 IN THE COURT OF QUEENS BENCH OF NEW

BRUNSWICK, TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON, byretrieving a copy prepared for me, from Moncton Client Services.

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

2011, Court File Number: M/C/0642/09 was regarding 5 separate Motions

heard over various days, from March 23, 2011, to August 5, 2011, four being

filed by (for our purposes) the Intended Respondents and one being filled by the

Intended Appellant.

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

two separate Motions, following the Honorable Court having heard two

Motions filed by the Plaintiffs August 2011, consequentially and immediately

following same subject Court Hearings which the Intended Appellant believed

were necessary to fairly conclude the matter regarding the first five subject

Motions. One of the Motions which I Intended Appellant did file was a Motion

for an injunction to caution the Court from coming to a premature decision

regarding the five subject Motions (the subject of this Appeal), until the

honorable Court hearing that matter could hear and consider the Intended

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Appellants Motion, regarding Motion to Adduce New Evidence and a Post

Hearing Brief, which was scheduled for August 25, 2011. I Intended Appellant

did and or had filed a second motion following the last Court Hearings of two

Motions in August 2011 therefore to strike inter alia vexatious and erroneous

affidavit evidence from the record; please note this Motion to Strike Evidence

was and still remains scheduled for February 23, 2012, because I Andr Murray

did and do verily believe, the subject affidavit evidence would be prejudicial to

my cause, further the subject vexatious and erroneous material was frivolous,

and an abuse of the process of Court. I Andr Murray did believe that if the

evidence was allowed to remain unchallenged, my cause would be prejudiced,which is now evidenced by the October 21, 2011 decision which I now seek to

Appeal.

8. The Intended Appellants Motion, regarding, the proposed Injunction, and

to adduce new evidence include a proposed filing of a Post Hearing Brief Dated

August 9, 2011, all of which was scheduled to be heard August 25, 2011, was

placed before Honorable Justice George S. Rideout, who immediately upon

entering the Court room declared that Honorable Justice Zoel R. Dionne was

seized of the matter, therefore intended to be heard that day, and subsequently

Honorable Mr. Justice George S. Rideout alluded that he could not hear the

matter. Honorable Justice George S. Rideout did declare as he was leaving the

Court room further that he would go directly to see Honorable Justice Zoel R.

Dionne in his office (ashedid believe him to be there) that Honorable Mr.

Justice George S. Rideout would bring this in discrepancy to the attention of

Honorable Justice Zoel R. Dionne, right away, so the matter may be properly

dealt with in the undisclosed future.

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9. The Intended Appellants Motion, regarding, the proposed Injunction,

adducing new evidence and filing a Post Hearing Brief Dated Tuesday August

9, 2011, was filed by the Intended Appellant, four days after the last scheduled

Friday August 5, 2011 date of the Hearings of the subject five Motion (the

subject of this Appeal).

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

August 5, 2011 (last hearing Date of subject Motions which decisions of, are

now to be Appealed). 57 days did pass before Honorable Justice Zoel R.

Dionne did unexpectedly provide a Oral decision, without hearing the IntendedAppellants two Filed Motions.The Intended Appellant verily believes that this

violates the principles of Natural Justice, rules of procedural fairness and a

person's common law right to be heard.

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

fairness requires that administrators adhere to a fair decision-making procedure.

The learned trial judge erred in law in not recognizing the principal of law

expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other

side'). This Maxim, in law means: no person shall be condemned, punished or

have any property or legal right compromised by a court of law without having

heard that person. I Andr Murray very believe the Honorable Court should

have heard the Intended Appellants two scheduled Motions before rendering a

decision.

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

Order or decision is interlocutory or final should be determined by looking at

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

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disposes of, or substantially decides the rights of the parties; consequentially it

ought to be treated as a final order or decision.

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

Res Judicata & Functus Officio the Court of original Jurisdiction can longer

hear anything further regarding the matter of the five motion, the result of

which is this Decision being now appealed, there fore the decision is final.

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

motion, will doubt the correctness of the order or decision in question and finderror in the jurisprudence thereof.

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

motion will consider that the Appeal (of these subject matters) involves matters

of such importance that leave to appeal should be granted. Considering the

importance, the impact of this decision may have, as a precedent upon the rights

of Tenants pursuant to the Residential Tenancy Act when compared to

Mortgagees, in New Brunswick from here forth; unquestionably the Intended

Appellant believes that Leave to Appeal may/should be granted.

16. I Andr Murray very believe to be true that, This Court in exercising the

discretion conferred by Rule 62.26 of theRules of Court, a judge must decide

whether it is just and equitable to grant the provisional remedy while

proceedings are pending. Courts have traditionally resolved that question by

applying the well-known three-prong test of(1) Does the appeal pose a serious

challenge to the decision in the court below? (2) Will the applicant suffer

irreparable harm without a stay? (3) Does the balance of convenience favour the

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order sought? The first branch of the test is referred to in Rule 62.26, while the

second and third branches have been formulated by the courts to provide a

principled framework for the exercise of discretion contemplated by the Rule.

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

serious challenge to the decision in the court below.

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

irreparable harm without a stay.

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

convenience favours granting the order sought.

20. I Andr Murray very believe to be true thatNatural Justice and

procedural fairness requires administrators adhere to a fair decision-making

procedure. The learned trial judge erred in law in not recognizing the principal

of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the

other side'). This Maxim, in law means: no person shall be condemned,

punished or have any property or legal right compromised by a court of law

without having heard that person.

21. I Andr Murray very believe to be true thatthe Court rendered a decision

on five Motions without hearing the (other side) Appellant, additionally on two

further Motions, which directly addressed and were relative to and could have

changed the outcome of the five Motions decided upon by the Court, October

21, 2011.

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22. I Andr Murray very believe to be true thatthe Learned Trial Judge failed

to understand the facts and arguments as presented by the Appellant and instead

pursued only the arguments and assertions as presented by the Respondent, this

predisposition of the Learned Trial Judge toward a particular result, is such that

a reasonable apprehension of bias is raised. The Appellant contends that a

reasonable apprehension of bias arose by the fact that the learned Trial Judge

only accepted argument and evidence which favored the Defendants position,

further the learned Trial Judge made obviously erroneous statements within the

decision which reasonably must be based on incorrect information, contrary to

the facts of the case.

23. I Andr Murray very believe to be true thatthe trial judge made a number

of material errors in law while arriving at Decisions and in respect the Courts

exercise of discretion regarding costs. The learned Trial Judge erred in law, in

irregularly applying the Courts Discretion. The Appellant contends, that The

Learned Trial judge did display abuse of discretion, which is an adjudicator's

failure to exercise sound, reasonable, legal decision-making. The Learned Trial

Judge instead rendered a decision which is unsupported by the evidence and

clearly based on erroneous findings of material fact.

24. I Andr Murray very believe to be true thatthe factual findings made by

the Learned Trial Judge should not be accepted, because the Appellant can

show that they are unreasonable, based on a material misapprehension of the

evidence, and or tainted by a failure to consider material, relevant evidence.

The effect is significantly unjustified prejudice and or injustice to the

Appellant.

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25. I Andr Murray very believe to be true thatthe Learned Trial Judge,

demonstrated subjectively that he did not appreciate the argument advanced by

the Appellant, consequently failed or refused to understand the legal principles

relied on, in support of the Appellants argument, further, the Learned Trial

Judge failed to review and understand the relevant evidence.

26. I Andr Murray very believe to be true thatthe Leaned Trail Judge did

demonstrate Omissions in reason for judgment, which amount to material error

because they give rise to the reasoned belief that the trial judge must have

forgotten, ignored or misconstrued the evidence in a way that affects the Courtsconclusions, such as in this case.

27. I Andr Murray very believe to be true thatthe award of costs, is

considered to be a matter within the discretion of the Trial Judge, the Appellant

will demonstrate that a grossly unfair allocation amounts to an error of

principle, further, that the exercise of the Trial Judges discretion in this matter

was affected by error in principle and or by misapprehension of the facts.

Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The law never

works an injury, or does a wrong. The Appellant claims that the exercise of

discretion of the Learned Trial Judge in regards to Cost award to the Plaintiff is

manifestly without merit, therefore excessively disproportionate, therefore,

unbalanced substantial injustice and serious injustice would result if the Cost

award is allowed to stand.Manifest Abuse of Discretion is when the Courts

decision is unsupported by the evidence and clearly on a erroneous finding of a

material fact, the Appellant claims in this matter that the Learned Trail Judge

has in this case demonstrated Manifest Abuse of Discretion, in the

inappropriately excessive cost awarded the Plaintiff, moreover the unjust

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awarding of undeserving cost, in the amount awarded in favor of the

Respondent in these circumstances; further, Appellant contends, it would be a

disservice to the administration of justice to allow this Award of Costs to stand.

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

that as a Residential Leasehold Tenant at 31 Marshall Street, since year 2005,

this is to say and affirm that I am in good standings in pursuance with the

Residential Tenancy Act of New Brunswick; incidentally, the beginning of each

month and no later than the first day of each month, including therefore this

first day of October, 2011 I Andr Murray Residential Leasehold Tenant Ihave, according to my lease agreement, furthermore, I have paid directly into

my landlords bank account at the R.B.C. Account Number 012145014220

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

correspondence with the Solicitor for my Landlord, Landlord Betty Rose

Danielski and also communicated directly by written correspondence with my

Landlord Betty Rose Danielski, both of which respectively speaking, have not

rejected my claims found therewithin subject written correspondence, that

which included my CLAIM inter alia that Landlord Betty Rose Danielski is

indeed my Landlord by the simple act, of her acceptance of this subject CLAIM

and Landlord Betty Rose Danielskis non denial thereof, moreover Landlord

Betty Rose Danielski continues to accept my monthly rental payments,

consistently occurring the first of each month and which furthermore, moreover

are a continuance of a long unbroken line of payments since the year 2005,

consequently, Landlord Betty Rose Danielski whom I Claim is the Landlord

who has failed to deny my written CLAIM to both her and her Solicitor,

continues to accept my monthly rental payments furthermore, Landlord Betty

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Rose Danielski accepted last months rent October 2011 in the capacity of

Landlord, I find that the principle of issue estopple applies as Landlord Betty

Rose Danielski has not denied my claims further as is evidenced by the

commerce between Residential Tenant Andr Murray consequently I verily

believe that Landlord Betty Rose Danielski is my legal Landlord.

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

Act of New Brunswick which is NOTWITHSTANDING all other acts.

31. This is further to state that I have a right to remain in occupancy at and orof 31 Marshall Street, Fredericton as a Residential Tenant in good standing,

moreover any interference with my tenancy, by any other authority other than

the Chief Rentalsmen of New Brunswick will be considered a Breach of the

Covenant of quiet enjoyment, reasonably by tortious actions, for that reason

such actions would be interfering with the use and enjoyment of the leased

premises, which is substantial and of a grave and of a permanent nature, such

that it constitutes a serious interference with the ability of the Tenant Andr

Murray to exercise right of possession of his Residential Leasehold Tenancy at

31 Marshall Street Fredericton, New Brunswick.

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

coverage policy Insurance Plan with the insurance provider called: State Farm

Fire and Casualty Company for that purpose is effectively providing coverage

against loss of the entire duplex 29 and 31 Marshal Street Fredericton, New

Brunswick for any reasons.

Attention

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

management Order therefore prohibiting any further filing of evidence to the

subject motions to be heard, against the objections of Andr Murray the

Defendant in that matter. Please see a copy of this Order which is attached to

the Affidavit of Andr Murray Dated October 28, 2011 as EXHIBIT A.

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

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

October 13, 2011, which indicated and therefore confirmed that a new Date set

as February 23, 2011 at 9:30 AM for a Hearing of the Motion filled by AndrMurray on August 9, 2011. A copy of that letter and the envelop which it

arrived in having a tracking number RW 612 716 958 CA is attached to the

Affidavit of Andr Murray Dated October 28, 2011 as EXHIBIT B.

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

(FORM 37A), and AFFIDAVIT in support thereof, which was COURT OF

QUEENS BENCH TRIAL DIVISION MONCTON N.B.

FILED/REGISTERED Stamped as August 9, 2011. A copy of this Motion is

attached to the Affidavit of Andr Murray Dated October 28, 2011 as

EXHIBIT C.

36. August 25, 2011, I Andr Murray did file a NOTICE OF MOTION

(FORM 37A), and AFFIDAVIT in support which was COURT OF QUEENS

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

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

Murray Dated October 28, 2011 as EXHIBIT D.

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

inter alia awarded $500 in cost to Defendant Andr Murray. A copy of this

Order is attached to the Affidavit of Andr Murray Dated October 28, 2011 as

EXHIBIT E.

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

STANDARD FORM OF LEASE Dated March 28, 2005, a Residential Tenancy

Lease with Landlord Betty Rose Danielski for the 29 and 31 Marshall Street

Property, Fredericton N.B. The March 28, 2005 Residential Lease is attached to

the Affidavit of Andr Murray Dated October 28, 2011 as EXHIBIT F.

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

STANDARD FORM OF LEASE Dated September 1, 2005, a Residential

Tenancy Lease with Landlord Betty Rose Danielski for the 29 and 31 Marshall

Street Property, Fredericton N.B. The Sept 1, 2005 Residential Lease is

attached to the Affidavit of Andr Murray Dated October 28, 2011 as

EXHIBIT G.

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

BRUNSWICK which the RBC and 501376 N.B. Ltd., body corporate company,

Respondents in the matter have argued before the COURT Of QUEENS

BENCH, Moncton TRIAL DIVISION therefore alleges inter alia that they have

a Financial Investment Instrument called a MORTAGEE DEED although

when APPLICANT (in this matter) requested by DEMAND FOR

PARTICULARS the alleged MORTAGEE DEED and or proof of any

MORTAGE being currently in existence neither Royal Bank of Canada

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

alleged MORTAGEE DEED.

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

MORTAGEE DEED it does not exist and or have not witnessed the Honorable

Court hearing this matter being provided with proof of the existence of the

subject MORTAGEE DEED and or any other significant proof of the existence

of Financial Investment Instrument which may be therefore negotiable in

commerce. Nevertheless in the absence of said proof the Learned Trial Judge

hearing the matter ruled in favor of the Plaintiffs in that matter Respondentshere.

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

Tenant in New Brunswick to protect and therefore evoke the Residential

Tenancy Act of New Brunswick especially in matters such as these, when,

financial institutions are negotiating their financial investment instruments

relative to residential properties, therefore moreover these subject institutions

must be reminded that the Legislative Assembly of New Brunswick anticipated

such a scenario and for that reason included within the Residential Tenancy Act

of New Brunswick is the condition NOTWITHSTANDING.

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

respect to all other acts was drafted into the Residential Tenancy Act of New

Brunswick, furthermore, the erroneous position of the Learned Trial Judge in

his misapprehension of Residential Tenancy Law in New Brunswick and the

shelter and or protection provided to all residential Tenants of New Brunswick

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

regarding this matter.

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

alternatively moreover, in finding contrary to Residential Tenancy Rights

established in New Brunswick verbally expressed a subjective preference to

rule in favour of financial institutions.

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

payments of the agreed upon rental fees are made to the Landlords Bankaccount the first of each month including this one, November 2011, regardless

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

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

accepting Residential Tenancy Rental payments to here designated account.

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

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

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

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

Tenancy Act of New Brunswick.

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

1. Is this decision a final order?

2. Is there is a conflicting decision by another judge or court upona question involved in the proposed appeal and, in the opinion of thejudge hearing the motion, it is desirable that leave to appeal begranted?

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

4. Does the judge hearing the motion consider that the appealinvolves matters of such importance that leave to appeal should begranted?

5. Should the Court grant leave to Appeal?

6. Should the Court grant a stay of proceedings?

7. Should the Court give special instruction regarding theAppellants Submission?

8. Should the Court give instruction on filing of the AppealBooks?

9. Should the Court recognize the Tenancy of Intended AppellantAndr Murray?

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

citation of relevant statutory provisions and leading authorities, and

1.FINAL ORDER OR DECISION

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

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

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

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

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

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

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

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

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

goal.

48. The Intended Respondents wanted the Tenancy of the Intended Appellant

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

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

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

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

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

Brunswick. The Decision being appealed, Dated October 21, 2011, as madefinally disposes of, or substantially decides the rights of the parties, being,

namely the Tenancy Rights of the Intended Appellant and the alleged

Mortgagee rights of the Intended Respondent.

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

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

rights of the parties.

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

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

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

or decision is interlocutory or final:

Decision

[7] A preliminary question arises: IsJustice McLellans decision final or interlocutory? If it is final, leave toappeal is not required.

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[8] In this Province, the leading authorityon point is Bourque v. New Brunswick, Province of, Leger and

Leger (1982), 41 N.B.R. (2d) 129 (C.A.). In that case, Stratton J.A.,as he then was, adopted the following approach to the determinationof the threshold question at issue here, at pages 133-34:

13 In my opinion, the question whether an orderor decision is interlocutory or final should bedetermined by looking at the order or decisionitself, and its character is not affected by thenature of the order or decision which could havebeen made had a different result been reached. Ifthe nature of the order or decision as made finally

disposes of, or substantially decides the rights ofthe parties, it ought to be treated as a final order ordecision. If it does not, and the merits of the caseremain to be determined, it is an interlocutoryorder or decision.

[9] The analytical framework articulatedin Bourque has withstood the test of time. See Lawson et al. v. Poirier etal. 1994 CanLII 6525 (NB C.A.), (1994), 152 N.B.R. (2d) 394 (C.A.), perRyan J.A. at paras. 9_13; Western Surety Co. v. National Bank of Canada2001 NBCA 15 (CanLII), (2001), 237 N.B.R. (2d) 346 (C.A.), at para.27; Sinclaire v. Nicols and Gregg 1999 CanLII 4070 (NB C.A.), (1999),231 N.B.R. (2d) 60 (C.A); Caissie v. Senechal Estate et al. 2000 CanLII8754 (NB C.A.), (2000), 231 N.B.R. (2d) 198 (C.A.), per Turnbull J.A.;and Dougs Recreation Centre Ltd. et al. v. Polaris Industries Ltd. 2001CanLII 19446 (NB C.A.), (2001), 237 N.B.R. (2d) 190 (C.A.), perRobertson J.A. The question whether Mr. MacArthur must obtain leaveto appeal is to be determined within that analytical framework.

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

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

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

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

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

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

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

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

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

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

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

following definition of Functus Officio as follows:

FUNCTUS OFFICIOfunctus officio [Latin having performed his or her office] (Of anofficer or official body) without further authority or legal competence

because the duties and functions of the original commission have beenfully accomplished. The term is sometimes abbreviated to functus .

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

further authority or legal competence to rule between the parties regarding

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

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

made without Notice and inter alia the other relief which was sought betweenthe parties, because the duties and functions of the original commission have

been fully accomplished, therefore the decisions as rendered would be final.

The Court of Queens Bench Trial division could not revisit these matters as

decided upon.

54. Black's Law Dictionary (8th ed. 2004), at Page 4088 defines Res Judicata

as follows:

RES JUDICATA

res judicata [Latin a thing adjudicated]

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1. An issue that has been definitively settled by judicial decision.[Cases: Judgment 540, 584, 585. C.J.S. Judgments 697700, 702

703, 749, 752.]2. An affirmative defense barring the same parties from litigating asecond lawsuit on the same claim, or any other claim arising from thesame transaction or series of transactions and that could have been but was not raised in the first suit.

The three essential elements are (1) an earlier decision on the issue, (2) afinal judgment on the merits, and (3) the involvement of the sameparties, or parties in privity with the original parties. Restatement(Second) of Judgments 17, 24 (1982). Also termed res adjudicata;

claim preclusion; doctrine of res judicata. Cf. COLLATERALESTOPPEL. [Cases: Judgment 540, 584, 948(1). C.J.S. Judgments 697700, 702703, 752, 930931, 933.]

Res judicata has been used in this section as a general term referringto all of the ways in which one judgment will have a binding effect onanother. That usage is and doubtless will continue to be common, but itlumps under a single name two quite different effects of judgments. Thefirst is the effect of foreclosing any litigation of matters that never havebeen litigated, because of the determination that they should have beenadvanced in an earlier suit. The second is the effect of foreclosingrelitigation of matters that have once been litigated and decided. Thefirst of these, preclusion of matters that were never litigated, has goneunder the name, true res judicata, or the names, merger and bar.The second doctrine, preclusion of matters that have once been decided,has usually been called collateral estoppel. Professor Allan Vestal haslong argued for the use of the names claim preclusion and issuepreclusion for these two doctrines [Vestal, Rationale of Preclusion, 9St. Louis U. L.J. 29 (1964)], and this usage is increasingly employed bythe courts as it is by Restatement Second of Judgments. Charles AlanWright, The Law of Federal Courts 100A, at 72223 (5th ed. 1994).

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

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

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

the five motions considered, which the Defendant seeks leave to appeal

presently;

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

matters, unless overturned upon Appeal ( the only Court with the Jurisdiction to

do so) after consideration by the Honourable Court of Appeal, furthermore,

Honorable Zol R. Dionne, could not rule again on these same matters between

the parties;

(3) the involvement of the same parties, or parties in privity with theoriginal parties such as in this case of the ROYAL BANK OF CANADA &

501376 N.B. Ltd., a body corporate, and ANDR MURRAY.

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

therefore not be able to have the Court of Queens Bench Trial Division hear

anything further regarding the Rights of Residential Tenants in New

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

matter) Andr Murray and the 29 and 31 Marshall Street Property, Fredericton

New Brunswick, the impugned claims by the Royal Bank of Canada as

Mortgagee, and 501376 N.B. Ltd., a body corporate, as tentative purchaser of a

Mortgagee Deed, regarding the incidents as decided upon October 21, 2011.

The five Motions were essentially, interalia, regarding:

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

body corporate withdrawing from the litigation;

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

matter) Defendants Affidavit material from the record regarding

claims of Fraud upon the Court, inter alia;

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c. Defendants Motion: Rescinding Orders made without Notice,

made on October 20, 2009 and strike portions of the Plaintiffs

statement of claim and summarily dismiss the Plaintiffs claims

for lack of jurisdiction, inter alia;

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

19 verses the Residential Tenancies Act, SNB 1975, c R-10.2

and lack of jurisdiction of the Court, inter alia;

e. Plaintiffs Motion: Ruling on impugned Notice of Termination

of Tenancy and lack of jurisdiction of the Court, inter alia.

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

the Court of Queens Bench Trial Division from hearing the Intended

Appellants two further motions scheduled for February 23, 2012, because of

estopple, the Court could not possibly grant the relief requested, which is

intended to directly affect the courts conclusions, regarding the 5 motions (at

the time undecided upon) but now already decided upon. The Defendant was

seeking a Stay of Proceedings until the Court considered accepting New

Evidence and a Post Hearing brief further, the Defendant was seeking to strike

prejudicial affidavit material from the record before the Court rendered a

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

evidently because without the Court Striking the requested frivolous and

vexatious Affidavit material from the record, considering a post hearing brief

and considering the new Evidence, the Learned Trial Judge did in fact render a

decision against the Defendant in that matter on all remedies sought.

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

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

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Honorable Zol R. Dionne is interlocutory; the Intended Appellant Andr

Murray shall seek to provide further legal reason to grant leave to appeal as

follows.

Leave to Appeal required

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

Honorable Justice J. ERNEST DRAPEAU, J.A. offered the following, when

considering whether to grant leave to appeal from a interlocutory Order or

Decision:

[11] Rule 62.03(4) provides that leave toappeal shall not be granted unless:

(a) there is a conflicting decision by anotherjudge or court upon a question involved inthe proposed appeal and, in the opinion ofthe judge hearing the motion, it is desirablethat leave to appeal be granted,

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

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

[14] Neither this Court nor the SupremeCourt of Canada has considered the questions of law raised byMr. MacArthur. While I am not persuaded that Justice McLellansdecision is wrong, I do entertain a doubt of the kind contemplatedby Rule 62.03(4)(b). That being so, does leave to appealautomatically follow?

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[15] InBreen v. MacIntosh, [2001] N.B.J.No. 226 (C.A.), at para. 6, I expressed the view that satisfaction of

one or more of the conditions found in Rule 62.03(4) did not, byitself, compel the issuance of an order granting leave to appeal. Iwent on to add that Rule 62.03(4) vests in the judge hearing themotion a residual discretion to deny leave even where one ormore of the preconditions have been satisfied. I remain firmlycommitted to that view.

[16] The meaning and effect of Rule62.03(4) must be ascertained on the basis of its wording and theRules of Court as a whole. Needless to say, the Rule should beinterpreted in a commonsensical manner and with a view to

promoting the most efficient use of judicial resources. See Smithv. Agnew 2001 NBCA 83 (CanLII), (2001), 240 N.B.R. (2d) 63(C.A.), at para. 35.

[17] While it is true that clauses (a) and (c)feature an explicit preservation of judicial discretion and clause(b) does not, the wording of the opening phrase in Rule 62.03(4)suggests that all three clauses are mere conditions precedent to thejudges jurisdiction to grant leave to appeal. The Rules openingwords are: Leave to appeal shall not be granted unless..., notLeave to appeal shall be granted....

[18] Clauses (a) and (c) of Rule 57.02(4) ofthe Newfoundland & Labrador Rules of Procedure are identical,for all intents and purposes, to clauses (a) and (c) of our Rule.Rule 57.02(4) of the Newfoundland & Labrador Rules ofProcedure reads as follows:

(4) Leave to appeal an interlocutory order may be grantedwhere

(a) there is a conflicting decision byanother judge or court upon aquestion involved in the proposedappeal and, in the opinion of theCourt, it is desirable that leave toappeal be granted,

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(b) the Court doubts the correctness of

the order in question,(c) the Court considers that the appeal

involves matters of such importancethat leave to appeal should begranted, or

(d) the Court considers that the nature ofthe issue is such that any appeal onthat issue following final judgmentwould be of no practical effect.

[19] It will be seen that although clauses (a)and (c) of the Newfoundland & Labrador Rule feature, like thecorresponding clauses in our Rule, a preservation ofjudicial discretion, the opening phrase provides that [l]eave toappeal an interlocutory order may be granted where... [Emphasisadded.] Obviously, the drafters of the Newfoundland & LabradorRule did not see any incompatibility between the wording ofclauses (a) and (c) and a general judicial discretion to deny leave. InBusiness Development Bank of Canada v. White Ottenheimer &Baker2002 NFCA 10 (CanLII), (2002), 209 Nfld. & P.E.I.R. 167(C.A.), Cameron J.A., who delivered the Courts reasons forjudgment, observed, at para. 2, that even if one or more of thefactors are present, the Court still has the discretion to refuse to hearan appeal prior to the completion of the trial. See, as well, White v.True North Springs Ltd., 2002 NLCA 65 (CanLII), 2002 NLCA65; [2002] N.J. No. 282 (C.A.), online: QL (NJ).

[20] Rule 62.03(4) cannot be interpreted inisolation. As noted, its meaning and effect must be ascertainedhaving regard to the Rules of Court as a whole. Rules 1.03(2) and62.21(6) play an important role in the interpretative exerciserequired here. Rule 1.03(2) directs courts to liberally construe therules to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits. Rule 62.21(6)provides that [a]n interlocutory order or decision from which there

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has been no appeal shall not operate to prevent the Court of Appealfrom rendering any decision or making any order.

[21] Interlocutory orders and decisions varygreatly in terms of their relative importance within the litigationprocess and todays contested interlocutory order or decision maywell be entirely moot tomorrow. One can easily imagine a situationwhere the judge hearing the motion might doubt the correctness ofthe impugned interlocutory order or decision but conclude thatgranting leave to appeal would not be conducive to the just, leastexpensive and most expeditious determination of the proceedingson its merits. Indeed, circumstances may arise where granting leaveto appeal because of some doubt as to the correctness of the

interlocutory order or decision might well work against the bestinterests of the administration of justice.

[22] In my view, Rule 62.03(4) does notobligate the judge hearing the motion to grant leave just becauseone or more of the conditions contained in clauses (a), (b) and (c)have been met. The judge retains a residual discretion to deny leavewhere such an outcome would be in the best interests of justice.Any other interpretation would fail to give effect to the wording ofthe opening phrase in Rule 62.03(4) and the significant safeguardprovided by Rule 62.21(6). Moreover, it would be unfaithful to

Rule 1.03(2) and, insofar as clause (b) is concerned, incompatiblewith common sense. I would add that if the drafters of Rule62.03(4) had intended to strip the judge of any residual discretion inthe exercise of his or her jurisdiction under Rule 62.03(4), theycould and likely would have employed clear wording to that end.

[23] Factors such as the relative importance ofthe interlocutory order or decision in the litigation process and therepercussions of granting leave come into play in the exercise ofthat residual discretion. As Cameron J.A. noted in BusinessDevelopment Bank of Canada v. White Ottenheimer & Baker, atpara. 2, the matter always involves the weighing of interference,by the appeal process, with the timely administration of justiceagainst the interest of the appellant in having the matter resolvedimmediately.

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[24] Justice McLellans decision appears to bequite significant in terms of its likely influence on the conduct

of the action in the case at hand. As well, the action is not enteredfor trial; in fact, the discovery process is not completed. Finally,there is no evidence that an order granting leave to appeal mightcause prejudice of a serious nature to any party. The cumulativeeffect of these considerations leads me to conclude that leaveshould be granted pursuant to Rule 62.03(4)(b).

Disposition

[25] The motion for leave to appeal isallowed, with costs of $750 payable by the plaintiff, S. Bransfield

Limited, to the defendant, Gordon MacArthur.60. May it please this Honorable Court Intended Appellant will now attempt

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

follows:

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

Rule 62.03(4) (a) there is a conflicting decision by another

judge or court upon a question involved in the proposedappeal and, in the opinion of the judge hearing themotion, it is desirable that leave to appeal be granted,

61. As far as the Intended Appellant knows there is no other conflicting

decision of a Court in New Brunswick, this decision would be the Provincial

Legal Precedent, but there are decision of the Courts of other provinces which

do conflict with this decision entirely, especially, as an example, in the case of

Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII), where

Honorable Justice SCHWARTZ J. rules exactly opposite to the Learned Trial

Judges Ruling (which the Intended Appellant seeks Leave to Appeal), in a

almost identical situation, namely with The Royal Bank of Canada as the

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Mortgagee, attempting to vacate lawful Tenants of a Mortgagor in default but

in that case the Tenants rights were justly upheld by that Court.

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

Justice SCHWARTZ J. provided a decision as follows:

VII Decision

[37] This court is satisfied that the purpose of the amendment andthe intention of the Manitoba legislature were to bring evictions oftenants by mortgagees within the framework of and subject to the

provisions of theR.T.A. That intention has, in my view, been expressedwith the irresistible clearness described by Philp J.A. quotingLHeureux-Dub at paragraph 20 as follows:

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

... while it is open to Parliament ..., subject to over-archingconstitutional norms, ... to change the law in whatever way it seesfit, the legislation in which it chooses to make these alterationsknown must be drafted in such a way that its intention is in no way

in doubt.

The intention of the Legislature to alter the common law rightsof the mortgagee has not been expressed "with irresistibleclearness," if at all, in the Act. See: Goodyear Tire & RubberCo. of Canada Ltd. et al. v. T.Eaton Co. Ltd. et al.,1956 CanLII2 (SCC), [1956] S.C.R. 610 at 614; and R. Sullivan,Driedgeronthe Construction of Statutes, 3rd ed. (Toronto: Butterworths,1994) at 368.

[38] I note that the Director argues that the current rule of statutoryinterpretation does not require irresistible clearness but rather thewords of the statute are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the

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Act, the object of the Act, and the intention of Parliament. That is thelanguage used by Iacobucci J. inRizzo and Rizzo Shoes Ltd. (Re),1998

CanLII 837 (SCC), [1998] 1 S.C.R. 27 where he delivered the judgmentof an unanimous supreme court.

[39] Further the Director submits that the language of section 6 ofThe Interpretation Act of Manitoba,C.C.S.M., c. I80requires the sameconclusion.

Rule of liberal interpretation

6 Every Act and regulation must be interpreted as beingremedial and must be given the fair, large and liberalinterpretation that best ensures the attainment of its objects.

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

[41] Having reviewed and considered its entire context, andapplying the words of theR.T.A.,and in particular the amendeddefinition of landlord, in their grammatical and ordinary sense,harmoniously, with the scheme of thatAct, its object and the intentionof the Manitoba legislature, this Court must refuse the order ofpossession sought. The Mortgagee is bound to obtain possession inaccordance with theR.T.A.

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

[43] I do not intend to comment on those arguments in thesereasons. They are policy issues properly brought before an appropriatelegislative committee when amendments to theActare considered.

IX Final Result

[44] The application for an order of possession against the Tenantsis therefore refused. The application for an order of possession against

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the Owners is granted. The Mortgagee is entitled to its costs against theOwners.

63. The Intended Appellant does believe that this Court, upon hearing the

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

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

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

64. The intended Appellant posed the question to the Learned Trial JudgeDoes the Court have Jurisdiction to rule on matters concerning the Residential

Tenancies Act S.N.B. 1975, c. R-10.2 ?. The Learned Trial Judge did not

answer this question or address it in any part of the decision Dated October 21,

2011.

65. The following is the appropriate Maxim in the present circumstance.

Maxim

Rerum ordo confunditur, si unicuique jurisdictio non servetur.

The order of things is confounded if every one preserves not his

jurisdiction.

66. The relevant New Brunswick Rules of Court, brought to the trial Judges

attention were Rule 23.01(2)(a), which is reproduced as follows:

(2) A defendant may, at any time before the action isset down for trial, apply to the court to have the actionstayed or dismissed on the ground that

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

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67. Further the Intended Appellant Andr Murray was seeking an order

Under Rule 22.01 (3) of the Rules of Court, that, the Court may grant

summary judgment against the Plaintiff on the ground that there is no merit to

the action, or to one or more claims therein, or to part of any such claim, an

order for summary judgment against the Plaintiffs striking out the Plaintiffs

Statement of Claim or part of Plaintiff s Statement of Claim, namely

paragraph 8 and 9 of the Plaintiff s Statement of Claim for lack of

Jurisdiction.

68. Intended Appellant Andr Murray did seek an order Under Rule23.01(2)(a) of the Rules of Court, to dismiss the Plaintiff s Action, for the

Honorable Courts lack of Jurisdiction, to rule on matters concerning the

Residential Tenancies Act S.N.B. 1975, c. R-10.2. in any capacity not

specifically granted, by the Act. That Rule of Court, Rule 23.01(2)(a) states

(2) A defendant may, at any time before the action is set down for trial, apply

to the court to have the action stayed or dismissed on the ground that (a) the

court does not have jurisdiction to try the action, .

69. Intended Appellant Andr Murray sought an order, pursuant to Rule 27.09

(c) is an abuse of the process of the court,, striking out paragraph 8 and 9 of the

Plaintiff s Statement of Claim on the grounds that it indeed was a practice of

abuse of the process of Court in the fact that the Plaintiffs abused the process as

they where motivated to circumvent the jurisdiction of the Rentalsmen, and the

authority granted the Rentalsmen pursuant to New Brunswick Residential

Tenancy Act.

70. Paragraph 8 and 9 of the Plaintiff s Statement of Claim, Court Date File

Stamped September 18, 2009, are reproduced below:

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8. Pursuant to the Bidding Papers and Terms of Sale, the Property

was due to close within 20 days from the date if the sale, however, the

Plaintiffs have been unable to complete the sale of the property as aresult of the Defendants refusal and / or neglect to vacate the property.

9. The defendant has been served with a Notice to Vacate the

property, however, has refused to vacate the subject property. The

Plaintiff says the Defendant has wrongfully converted the property and

is occupying the property without permission or consent.

71. Intended Appellant posed the question By what authority do the

Plaintiffs claim to be able to evict the Residential Tenant Andr Murray? ThePlaintiffs did not claim, that Defendant is compelled to vacate the property

according to any New Brunswick Act, rule of Court or any claimed authority

transferred to the Plaintiffs or the Court by any known Law of New Brunswick.

The Defendant has been continuously at the 29 Marshall Street Property since

early 2005 and the Leasehold Tenancy of Intended Appellant Andr Murray

falls squarely under the authority of the New Brunswick Residential Tenancy

Act and the jurisdiction of the Rentalsmen..

72. As found stated above in A/S Nyborg Plast v. Groupe Qualit

Lamque/Lameque Quality Group Ltd., by Justice J. ERNEST DRAPEAU,

J.A. ( as he then was), under Rule 23.01(2)(a), the onus is on the Defendant to

establish that the Court does not have jurisdiction to try the action. In this case,

the objective of any statute interpretation is, of course, to ascertain the true

intent of the application of that statute, by reference to the meaning of the

words, as used to define the application of that specific Statute. The ResidentialTenancies Act S.N.B. 1975, c. R-10.2 is an Act, overseeing all maters

concerning Residential Tenancies in New Brunswick, vesting in the

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Rentalsmen, exclusive jurisdiction in respect of maters concerning Residential

Tenancies.

73. As opposed to the not explicitly stated jurisdiction of the Maritime and

Commercial Court of Copenhagen referred to above in A/S Nyborg Plast v.

Groupe Qualit Lamque/Lameque Quality Group Ltd., supra, While the

Clause does not explicitly state that the jurisdiction of the Maritime and

Commercial Court of Copenhagen over contractual disputes is to be exclusive,

its wording clearly conveys that message., the wording of the Residential

Tenancies Act, clearly and explicitly conveys that all matter arising out ofResidential Tenancies must be settled by, and is in the Jurisdiction, of the New

Brunswick Rentalsmen. The wording of the Act is unambiguous and clearly

conveys that message.

74. Similarly to, as was expressed in paragraph [14], in A/S Nyborg Plast v.

Groupe Qualit Lamque/Lameque Quality Group Ltd., supra, the Residential

Tenancies Act, does have exception to its jurisdiction, not unlike Clause 11.2

in paragraph [14] mentioned above. The Residential Tenancies Act S.N.B.

1975, c. R-10.2, section 2 states Except where otherwise specifically provided

for inthis Act, this Act applies to tenancies of residential premisesand tenancy

agreements respecting such premises, (a) notwithstanding the Landlord and

Tenant Act orany other Act, agreement or waiver to the contrary; The

Judicature Act is not listed as an exception, anywhere in the Residential

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

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

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

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dispute arising only after a Rentalsmen has made a decision, which the

Landlord or Tenant wishes to have reviewed.

75. Should this matter of evicting a Residential Tenant be more appropriately

dealt with by Rentalsmen of New Brunswick according to the Residential

Tenancy Act? It is the position of the Defendant that the Plaintiffs filed the

Notice of Action with the intention of circumventing the authority and

jurisdiction of the Residential Tenancies Act S.N.B. 1975, c. R-10.2. The law of

New Brunswick states that if a Residential Tenant is to be evicted, the eviction

must be according to and in pursuance the Residential Tenancies Act of NewBrunswick.

76. The Relevant sections of the Residential Tenancies Act, S.N.B. 1975, c.

R-10.2 is reproduced below as follows:

2 Except where otherwise specifically provided for inthis Act, this Act applies to tenancies of residential premisesand tenancy agreements respecting such premises,

(a) notwithstanding theLandlord and Tenant Actorany other Act, agreement or waiver to the contrary; and

(b) arising or entered into before or after this Actcomes into force.

9(5) With respect to every tenancy agreement enteredinto after this section comes into force, a landlord and atenant who entered into a tenancy agreement and who donot sign a Standard Form of Lease are deemed to have doneso and all provisions of this Act and the Standard Form of

Lease apply.9(7) Where a Standard Form of Lease has not beensigned, the possession of the premises by the tenant creates a tenancyagreement the term of which is to be determined

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by the method of rental payment.

26(2) A rentalsman, in addition to carrying out any otherduties or exercising any other powers under this Act or theregulations,

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

(b) may receive complaints and mediate disputes betweenlandlords and tenants;

(c) may disseminate information to educate and adviselandlords and tenants of rental practices, rights and

remedies;

(d) may receive and investigate complaints of conductin alleged contravention of the law of landlord andtenant;

(e) shall make inspections, repairs, collection andpayments under the provisions of sections 5 and 6;

(f) shall establish time limits under the provision ofsections 5 and 6;

(g) shall carry out his duties under section 8 with respectto security deposits;

(h) may conduct investigations and inspections ofpremises;

(i) may receive rental and other payments under theprovisions of this Act;

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

duties;(k) may act under the provisions of section 15 withrespect to disposition of chattels; and

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(l) shall act under the provisions of this Act with respectto the termination of tenancies.

26(3) No person shall obstruct, prohibit or interfere withthe right of a rentalsman

(a) to enter the premises where entry is made on a dayother than a Sunday or other holiday and is made betweeneight oclock in the forenoon and eight oclockin the afternoon, or

(b) to carry out his powers and duties under this Act.

77. To be absolutely clear and for the benefit of the Court, the following

definition of notwithstanding is provided from:

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

NotwithstandingIn spite of, even if, without regard to or impediment by other things.

In spite of, even if, without regard to or impediment by other things asstated.

78. Additionally, the following definition of notwithstanding is from Black's

Law Dictionary (8th ed. 2004),at Page 3378 as follows:

NOTWITHSTANDINGnotwithstanding, prep. Despite; in spite of .

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

SCHWARTZ J. stared the following regarding statutory interpretation (please

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see provided below from paragraph 38 through to and including paragraph 39),

as follows;

[38] I note that the Director argues that the current rule ofstatutory interpretation does not require irresistible clearnessbut rather the words of the statute are to be read in theirentire context and in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act,and the intention of Parliament. That is the language used byIacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII837 (S.C.C.), [1998] 1 S.C.R. 27 where he delivered thejudgment of an unanimous supreme court.

[39] Further the Director submits that the language ofsection 6 of The Interpretation Act of Manitoba, C.C.S.M., c. I80requires the same conclusion.

Rule of liberal interpretation

6 Every Act and regulation must be interpreted as beingremedial and must be given the fair, large and liberalinterpretation that best ensures the attainment of its objects.

80. The Intended Appellant (Defendant in that matter), like the Director in

Royal Bank Of Canada v. Zonneveld, supra, also argues that the current rule

of statutory interpretation does not require irresistible clearness but rather the

words of the statute are to be read in their entire context and in their

grammatical and ordinary sense harmoniously with the scheme of the Act, the

object of the Act, and the intention of Parliament. That is the language used

by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.),

[1998] 1 S.C.R. 27 where he delivered the judgment of an unanimous supremecourt. Additionally the comparable section of the New Brunswick

Interpretation Act, R.S.N.B. 1973, c. I-13 is as follows:

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17 Every Act and regulation and every provision thereof shallbe deemed remedial, and shall receive such fair, large and liberal

construction and interpretation as best ensures the attainment ofthe object of the Act, regulation or provision.

81. The Residential Tenancies Act of New Brunswick is a remedial act that is

intended to protect the rights of Landlords and Tenants, large and liberal

interpretation best ensures the attainment of its objects.

Maxim - Argumentum ab auctoritate fortissimum est in lege - Anargument drawn from authority is the strongest in law.

82. The New Brunswick Residential Tenancies Act, Section 2 provides that

2 Except where otherwise specifically provided for in this Act, this Act applies

to tenancies of residential premises and tenancy agreements respecting such

premises, (a) notwithstanding the Landlord and Tenant Act or any other Act,

agreement or waiver to the contrary; The Residential Tenancies Act, S.N.B.

1975, c. R-10.2 applies to tenants such as The Intended Appellant (Defendant

in that matter), Andr Murray of residential premises such as 29 MarshallStreet, Fredericton, New Brunswick and Tenancy agreements respecting such

premises such as the one the Intended Appellant (Defendant in that matter), has

entered into in the year 2005 as provided for the Honorable Courts

consideration in the Record on Motion Book.

83. The Intended Respondents (Plaintiffs in that mater), where aware of the

Lease, claimed by the Intended Appellant (Defendant in that matter), Andr

Murray. Sections 9(5) and 9(7) Residential Tenancies Act state clearly that,

the possession of the premises by the tenant creates a tenancy agreement

furthermore a landlord and a tenant who entered into a tenancy agreement

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and who do not sign a Standard Form of Lease are deemed to have done so and

all provisions of this Act and the Standard Form of Lease apply. as stated

above here within it is clear that possession of the premises constitutes tenancy,

written lease or no written lease, furthermore a Landlord and a Tenant who

entered into tacit tenancy agreement and who do not sign a Standard Form of

Lease are deemed to have done so and all provisions of this Residential

Tenancies Act and the Standard Form of Lease apply nevertheless.

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

addition to carrying out any other duties or exercising any other powers under

this Act or the regulations, including section 26(2) (l) shall act under the

provisions of this Act with respect to the termination of tenancies. The

responsibility of termination of residential tenancies is the duty of the

Rentalsman, and the most appropriate action for the Plaintiffs to have taken, to

terminate the tenancy of The Intended Appellant (Defendant in that matter),

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

Rentalsmen.

85. According to Residential Tenancies Act section 26(2) (b) A Rentalsmen

may receive complaints and mediate disputes between landlords and tenants;

and section 26(2) (d) A Rentalsmen may receive and investigate complaints of

conduct in alleged contravention of the law of landlord and tenant; If there

was a valid issue to be resolved according the Residential Tenancies Act the

most appropriate path was with the authority of a Rentalsmen.

86. Rule 27.09, provides for the striking out of pleadings, portions thereof or

other documents which are scandalous, frivolous, vexatious, or otherwise an

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abuse of the court. The Intended Appellant (Defendant in that matter), claims

that paragraph 8 and 9 of the Plaintiffs Statement of Claim should be struck

because, under Rule 27.09, paragraph 8 and 9 are scandalous, frivolous,

vexatious, or otherwise an abuse of the court, circumventing the authority of the

New Brunswick Residential Tenancies Act and the authority of the

Rentalsmen.

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

specifically designates authority to a Judge of The Court of Queens Bench of

New Brunswick under subsection 27(1) to review and set aside the decision,

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

on the ground that it was made (a) without jurisdiction, or (b) on the basis of an

error of law., made by a Rentalsmen.


relevant portions of subsections of 27 are reproduced below:

27(1) Any landlord or tenant affected by any decision

made by the Chief Rentalsman under section 11.2 or section25.41 or by any decision, order, notice of termination,notice to quit, notice to comply or order of eviction madeor issued by a rentalsman, except a decision made by arentalsman under section 11.2 or section 25.41, may,within seven days after being notified of the decision ororder or being served with the notice of termination, noticeto quit, notice to comply or order of eviction, apply byNotice of Application to a judge of The Court of QueensBench of New Brunswick to review and set aside the decision,order, notice of termination, notice to quit, notice

to comply or order of eviction on the ground that it wasmade

(a) without jurisdiction, or(b) on the basis of an error of law.

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

(a) in the case of an application by the landlord, onthe rentalsman or the Chief Rentalsman, as the case maybe, and the tenant, and(b) in the case of an application by the tenant, on the

rentalsman or the Chief Rentalsman, as the case maybe, and the landlord in accordance with the Rules of Court.

27(3) A judge of The Court of Queens Bench of NewBrunswick may, before or after the expiration of the timefor making an application under subsection (1), extend thetime within which the application may be made.

27(5) The judge hearing the application may receivesuch evidence, oral or written, as is relevant to support orrepudiate any allegation contained in the application.

27(6) An application under subsection (1) stays the operationof the decision, order, notice of termination, noticeto quit, notice to comply or order of eviction in respect ofwhich the application is made.

27(7) After hearing the application, the judge may allowthe application and set aside the decision, order, notice oftermination, notice to quit, notice to comply or order ofeviction or may dismiss the application.

27(8) Where an application under subsection (1) is dismissedthe judge shall make an order establishing the dateon which the decision, order, notice of termination, noticeto quit, notice to comply or order of eviction is to be effective.

27(9) Where a judge allows the application the judgeshall set aside the decision, order, notice of termination,notice to quit, notice to comply or order of eviction andrefer the matter to the rentalsman or the Chief Rentalsman,

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as the case may be, with directions as to the manner inwhich the rentalsman or the Chief Rentalsman is to proceed,

and the rentalsman or the Chief Rentalsman shallproceed with the matter in accordance with those directions.

27(10) To the extent that they are not inconsistent withthe provisions of this section, the Rules of Court apply inrespect of an application made under this section.


specifically designates authority to a Judge of The Court of Queens Bench of

New Brunswick under subsection 27(1) to act only after a decision has beenmade by made by a Rentalsmen, not before. The capacity of the Judge of The

Court of Queens Bench of New Brunswick under subsection 27(1) is clearly

that of a special Justice of a Appeal capacity.

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

follows:

JURISDICTIONjurisdiction,n.1. A government's general power to exercise authorityover all persons and things within its territory; esp., a state's power tocreate interests that will be recognized under common-law principles asvalid in other states . Also termed (in sense 2)competent jurisdiction; (in both senses) coram judice. [Cases: Courts 3;Federal Courts 3.1, 161. C.J.S. Courts 9, 18.]


specifically designates authority or jurisdiction to a Judge of The Court of

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Queens Bench of New Brunswick under subsection 27(1) specifically as the

Court's power to decide a case or issue a decree after a decision has been made

by made by a Rentalsmen.

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

necessary condition on which the jurisdiction of the Court of Queens Bench

can be engaged is under subsection 27(1) of the New Brunswick Residential

Tenancies Act S.N.B. 1975, c. R-10.2 is only after the prerequisite decision or

Order of the Rentalsmen is issued, otherwise the Court of Queens Bench Trial

division has no Jurisdiction to hear matters regarding the New BrunswickResidential Tenancies Act S.N.B. 1975, c. R-10.2 and specifically in the

Defendants case, the matter of a Notice to Vacate a Residential Property or

Termination of a Residential Tenancy.

93. Section 26 (1) ofThe New Brunswick Residential Tenancies Act S.N.B.

1975, c. R-10.2 is reproduced below:

RENTALSMEN

26(1) The Lieutenant-Governor in Council may appointone or more persons as rentalsmen who shall carry out suchduties as are prescribed by this Act and the regulations

94. The Intended Appellant (Defendant in that matter), asserts that it is the

Jurisdiction of the Rentalsmen to carry out such duties as are prescribed by the

New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 as explained

in Section 26, those duties in Section 26 having been reproduced already above.

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

addition to carrying out any other duties or exercising any other powers under

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this Act or the regulations, is including section 26(2) (l) shall act under the

provisions of this Act with respect to the termination of tenancies. Termination

of any Residential Tenancy should first be the responsibility of the Tenant and

or Landlord in that order. The Rentalsmen would only be terminating a Lease in

the event there is a irreconcilable dispute between the Landlord and or Tenant.

Jurisdiction

96. The New Brunswick Residential Tenancies Act Section 26 (1) clearly

states who shall carry out the duties as are prescribed by Residential Tenancies

Act, please see: Section 26 (1) ofThe New Brunswick Residential TenanciesAct S.N.B. 1975, c. R-10.2 is reproduced below:

RENTALSMEN26(1) The Lieutenant-Governor in Council may appointone or more persons as rentalsmen who shall carry out suchduties as are prescribed by this Act and the regulations.

97. The person known as the Rentalsmen, is the person who may carry out

such duties, as are legislated by Residential Tenancies Act, and has jurisdictionover matters regarding the Residential Tenancies Act, the question arises, what

role does a Judge of The Court of QueensBench of New Brunswick, have in

relation to Residential Tenancies Act.

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

regarding Residential Tenancies Act, may require the interpretation of two

statues namely:

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

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

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99. Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act,R.S.N.B. 1973, c. J-2 claim that each Act is respectively notwithstanding any

other Act, which would of course include each other.

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

provided the following excerpt:

Leges posteriores priores contrarias abrogant. Subsequent lawsrepeal prior conflicting ones. [Cases: Statutes 159, 162. C.J.S.

Statutes 287, 294.]

101. The definition of the Maxim Leges posteriores priores contrarias abrogant

is provided at the Legal Dictionary website at the following URL at

(http://legal-

dictionary.thefreedictionary.com/Leges+posteriores+priores+contrarias+abroga

nt)

Leges posteriores priores contrarias abrogant. Subsequent lawsrepeal those before enacted to the contrary. 2 Rol. R. 410; 11 Co.626, 630. A Law Dictionary, Adapted to the Constitution and Lawsof the United States. By John Bouvier. Published 1856.

102. The definition of Leges posteriores priores contrarias abrogant is provided

by Wikipedia, at the following URL:

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

Implied repeal

The doctrine of implied repeal is a concept in English constitutionaltheory which states that where an Act of Parliament conflicts withan earlier one, the later Act takes precedence and the conflictingparts of the earlier Act are repealed (i.e. no longer law). This

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doctrine is expressed in the Latin phrase "leges posteriores priorescontrarias abrogant".

103. Leges Posteriores Priores Contrarias Abrogant: This method of statutory

construction in this case, applies to Residential Tenancies Act, S.N.B. 1975, c.

R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2. The concept of this stature is

the newer statute later abrogates a prior statute only where the two are

manifestly inconsistent with and repugnant to each other. The rationale for

this form of construction is that the newer statute more accurately depicts the

current societal mood or more appropriately applies Jurisdiction to a givensubject.

104. Though both Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and

Judicature Act, R.S.N.B. 1973, c. J-2 claim that each Act is respectively

Notwithstanding any other Act, which would of course apply to each of the

here within mentioned Acts, based on the Maxim Leges posteriores priores

contrarias abrogant, Residential Tenancies Act enacted in 1975, takes

precedence therefore the conflicting parts of the earlier Judicature Act enacted

in 1973, are in effect, now subordinate.

105. Based on the Maxim Leges posteriores priores contrarias abrogant, the

Residential Tenancies Act, is in fact, notwithstanding the any other Act,

agreement or waiver to the contrary which includes Judicature Act, R.S.N.B.

1973, c. J-2.

106. For the benefit of the Court, the following definition of notwithstanding

is provided from:

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

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Notwithstanding

In spite of, even if, without regard to or impediment by otherthings.

In spite of, even if, without regard to or impediment by other thingsas stated.

107. Additionally, the following definition of notwithstanding is from Black's

Law Dictionary (8th ed. 2004),at Page 3378 as follows:

NOTWITHSTANDINGnotwithstanding, prep. Despite; in spite of .

108. The subject section of the Residential Tenancies Act, S.N.B. 1975, c. R-

10.2, which includes notwithstanding is reproduced below as follows:

2 Except where otherwise specifically provided for inthis Act, this Act applies to tenancies of residential premisesand tenancy agreements respecting such premises,

(a) notwithstanding theLandlord and Tenant Act orany other Act, agreement or waiver to the contrary; and

(b) arising or entered into before or after this Actcomes into force.

109. The subject section of the Judicature Act, R.S.N.B. 1973, c. J-2 which

includes notwithstanding is reproduced below as follows:

9(1) Notwithstanding anything in the provisions of thisor any other Act or the Rules of Court, the Trial Divisionshall have and exercise general and original jurisdiction inall causes and matters including jurisdiction in the following

46

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Intended Appellant's Submission Book 1. Leave to Appeal to the COURT OF APPEAL OF NEW BRUNSWICK

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