IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF NEW BRUNSWICK) BETWEEN: ANDRE MURRAY

APPLICANT INTENDED APPELLANT AND: ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate RESPONDENT INTENDED RESPONDENT ________________________________________________________ APPLICATION FOR LEAVE TO APPEAL ________________________________________________________ ANDRE MURRAY APPLICANT Address for service within New Brunswick: 31 Marshall Street Fredericton, N.B. E3A 4J8 E-mail address: andremurraynow@gmail.com RESPONDENT ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate, George H. LeBlanc Solicitor for the RESPONDENT ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate

George H. LeBlanc Name of solicitors firm: Cox & Palmer, Address for service: Blue Cross Centre, Suite 502, 644 Rue Main Street, Moncton NB E1C 1E2 E-mail address: gleblanc@coxandpalmer.com Telephone number: Main 506 856 9800 Telephone number: Direct 506 382 4529 Fax 506 856 8150

Table Of Contents
Page 1

Notice of Application for Leave to Appeal (Form 25A) ____________________

Certificate (Form 25B) _______________________________________________ 9 Formal judgments or orders and reasons of lower courts ____________________ 12 (Court of first instance) 1. Copy of Order of Justice Zol R. Dionne Dated the 20th day of October 2009 __ 12 (Application for leave to Appeal from Order of Justice Zol R. Dionne Dated the 20th day of October 2009) 2. Copy of decision of Judge of Court of Appeal Dated November 22, 2009._____ 13 3. Copy of Formal Judgement Court of Appeal, Dated 8th day of December 2009._ 15 (Court of first instance) 4. January 25, 2010 Court Order Adjournment of matter._____________________ 16 5. Copy of Case Management Order of Justice Zol R. Dionne Dated January 14, 2010 ______________________________________________ 17 6. Copy of Access Order of Justice Zol R. Dionne Dated the 23rd day of March, 2011._____________________________________ 19 7. Decision on five Motions of The Honourable Justice Zol R. Dionne Dated October 21, 2011. ________________________________________ 21 8. Copy of Order Number 1 of Justice Zol R. Dionne Dated the 28th day of October, 2011.___________________________________

60

9. Copy of Order Number 2 of Justice Zol R. Dionne Dated the 28th day of October, 2011.___________________________________ 61 10. Copy of Order Number 3 of Justice Zol R. Dionne Dated the 28th day of October, 2011.___________________________________ 63 Copy of Order Number 4 of Justice Zol R. Dionne Dated the 28th day of October, 2011.___________________________________ 64

11.

ii

Page 12. Copy of Order Number 5 of Justice Zol R. Dionne Dated the 28th day of October, 2011.___________________________________ 66 (Court appealed from) 13. Copy of Court of Appeal Order Adjournment Dated the 7th day of November, 2011.__________________________________ 68 Copy of Court of Appeal Order Adjournment Dated the 22nd day of November, 2011. (reasons not yet provided) __________ 69

14.

Memorandum of argument (Rule 25(1)(f)) Part I Concise overview of position with respect to issues of public importance and statement of facts ________________________ Part II Questions in issue ____________________________________ Part III Statement of argument _______________________________ Part IV Submissions concerning costs (maximum one page) ________ Part V Order or orders sought_________________________________ Part VI Table of authorities __________________________________ Part VII Statutes, regulations, rules, etc. ________________________

70 73 74 89 89 90 92

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70 Part I Concise overview of position with respect to issues of public importance and statement of facts. Of public importance to residential tenants living in the Province of New Brunswick,

1.

furthermore the capacity of Landlord who reasonably must be able to assure their residential tenants of the sanctity of their homes, therefore, to prevent the undermining of the dignity and sanctity of the tenants home, which said subject sanctity, must be the basis for human society. Societys popular legal trends should never dictate what residential tenants and landlords do or dont do regarding tenancy within the homes of New Brunswick. Within the law of New Brunswick and under Gods Law, we must have a higher mandate. The publics lives become so confused and anxiety-filled when we lose our focus on the worth and value God places on the sanctity of their homes. 2. An unsettled legal matter in New Brunswick is the current ability for a Mortgagee to

circumvent the Residential Tenancies Act (S.N.B. 1975, c. R-10.2) which was for the purposes of this argument, reasonably was drafted, subsequently issued as law NOTWITHSTANDING all others, therefore to shelter the Residential Tenant from the Mortgagee et al who for whatever reason would that contravene the intent of the Act therefore drafted by New Brunswick Legislative Assembly in preference to the profit of their financial investment instrument Mortgagee Deed being more easily liquidated (foreclosure) with vacant possession of subject premises thereby assuring greatest profit and or ease of title transfer. Moreover, whatever the motivation of the Mortgagee may be regarding this demonstrable disregard and or disrespect of the sanctity of the residential tenants home this is in direct contravention of Residential Tenancies Act (S.N.B. 1975, c. R-10.2) ; consequentially, the Mortgagee, whereby, for profit is regularly evicting tenants from their homes inflicts a great loss on morale of the residents of New Brunswick; esprit de corps when discussing the morale of a group, is an intangible term used to describe the capacity of people to maintain belief in an institution or a goal, or even in oneself and others. In view of the diverse influences and the rapid pace of social change visible in modern society it is perhaps inevitable to encounter a measure of uncertainty in identifying the correct balance of values. But the quest to minimize this uncertainty must remain the central concern of the science of Jurisprudence. The quest for better solutions and more refined alternatives lies at the very heart of (in this case) The New Brunswick Legislative assembly, supported when necessary by a collective obligation of the Supreme Court of Canada and its

71 scholars to exert themselves in order to find solutions to new problems and to provide the necessary guidance in matters of law. Fact is Mortgagees are circumventing the The introduction of statutory legislation which has already become a common practice in the rest of Canada which currently exists in New Brunswick has not yet affected the role and function of the Rentalsmens jurisprudence apart from circumventing the traditional role of the Chief Rentalsmen is his role as are prescribed by the Residential Tenancies Act (S.N.B. 1975, c. R-10.2) , the self-contained statutory code and the formal procedures that are laid down for its ratification have eroded the incentive to his effective participation in legislative administration. Furthermore, the wholesale importation of foreign legal concepts and the uneasy combinations that this has brought about in legal judicial practice are among the sources of general discontent. These and many other factors are in turn accountable for the insecurity which many New Brunswick Residential tenants and Landlords are currently experiencing. In the way of wasted power and energies, as it cannot be over emphasized the significance of a public body to be confident that when they move to New Brunswick that the Jurisprudence which has been enacted cannot thereafter be circumvented by what must be a Carpetbagger mentality. It is reasonable to comprehend that the population of New Brunswick is statistically economically challenged and therefore the scenario as herein described will not fine remedy at law through litigation as the cost far exceeds the short term gain for the average residential tenant. This opportunistic profiteering by the mortgagee must not be encouraged as this undesirable environment must have been anticipated by the legislators of the Residential Tenancies Act (S.N.B. 1975, c. R-10.2) that is Respondent, Mortgagee, Royal Bank of Canada circumvented jurisprudence of Residential Tenancies Act (S.N.B. 1975, c. R-10.2) obtaining vacant possession of residential leasehold property by Court Order, consequently, denying Tenants statute protected rights.

3.

Incidentally the applicant in this matter confidently consulted the Residential Tenancies

Act (S.N.B. 1975, c. R-10.2) in planning his future long term tenancy. By circumventing the Residential Tenancies Act (S.N.B. 1975, c. R-10.2) the Respondents are stripping the Applicant of publicly available protections, which the Legislative Assembly of New Brunswick, along with the other provinces of Canada, believed are an issue of public importance enough, to enact an Act to safe guard the very rights of Residential Tenants and Residential Landlords within this province, so as to prevent abuse to those members of the public. The Residential Tenancies Act

72 was created to address the needs of the people, in residential rented living accommodation and its purpose was to codify the law of Residential Tenancies, regarding Residential Landlord and Residential Tenants Rights and obligations, furthermore, to provide a simple, accessible and inexpensive procedure for settling residential disputes, without the costly, time consuming and prohibitive intervention of the Court. However, stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems. Which here again we see the legal landscape of the rest of Canada

4.

Regarding the issue of public importance, in this matter the Pubic is not able to avail

themselves of the relief contemplated by the drafters of the Residential Tenancy Act, because Mortgagees are circumventing the Residential Tenancy Act which protects Residential Landlords and Residential Tenants, consequentially dragging Residential Tenants before the Court first, to have a Residential Tenant evicted, an arena which favours the wealthy Mortgagees who easily can afford expensive Lawyers, causing the subject Tenants to be severely disadvantaged by reasonably having to self litigate therefore perform a lawyers task which most are ill equipped to do nor have the time to learn, alternatively a Tenants only option would be to hire a lawyer which must and or will result in legal fee attrition, normally a military strategy of wearing down the enemy by continual losses is being used in New Brunswick against the financially disadvantaged who reasonably cannot hire a lawyer in an attempt to attend Court of Queens Bench Trial Division simply to maintain a right which the Residential Tenancy Act assures and therefore expresses, as this subject matter moreover all matters as a general rule regarding the Residential Tenancy Act are to come before the Chief Rentalsmen in the first instance as this is where the proper jurisdiction lies is with the Rentalsmen to first decide matters of dispute concerning any and or all matters of residential tenancy in New Brunswick before any tribunal or Court of Queens Bench trial Division may hear the matter .

5.

The Applicant appears to be the first reported case, of a Residential Tenant in New

Brunswick to ever stand up to a Mortgagee, who has circumvented the Residential Tenancies Act (S.N.B. 1975, c. R-10.2) and as a consequence, dragged the Residential Tenant Appellant into the unbalanced arena which is the Court of Queens Bench Trial division. Lay persons having to learn

73 legal jurisprudence sufficient to raise an adequate defense has been a monumental task, and financial burden. The Respondent Mortgagee in this matter has likely become accustomed therefore relied on this fact, to surreptitiously acquire vacant possession.

6.

The other provinces of Canada, have through decision and statute brought Mortgagees

under the respective Residential Tenancy Acts, further, for a Court in New Brunswick to not conform to this fact, causes a conflict between courts of different provinces on issues that should be dealt with uniformly as between provinces. This case requires the Supreme Court of Canadas interpretation of an important provincial statute, namely Residential Tenancy Acts that similarly exists in several provinces. The Applicant submits that decision being appealed in question is disharmonious with mainstream Canadian jurisprudence on point and ought to be overruled Statement of facts The Respondent The Royal Bank of Canada, hereafter RBC as Mortgagee, claims to

7.

have received a Mortgage from Betty Rose Danielski (not a party in this proceeding) in 2000. In 2005 Andre Murray, the Applicant, intending to purchase the property, did contract with same Betty Rose Danielski, for several leases, a first right of refusal, and several contracts to make improvements to the subject 29 Marshall Street and 31 Marshall Street, Fredericton New Brunswick, duplex property, hererafter the property. The Mortgagee RBC did July 16, 2009 conduct a Power of Sale Mortgage Auction, without Notice to the Applicant, and despite Constructive Notice, the mortgage was tentatively sold to the 501376 N.B. Ltd., a body corporate, the second Respondent. The Appellant did claim to be a Residential Tenant in good standing and therefore protected by the Residential Tenancies Act (S.N.B. 1975, c. R-10.2). Instead of commencing the process of legally terminating the Appellants Tenancy, pursuant to Residential Tenancies Act, the Respondents did circumvent the Act and instead filed an action to vacate the Applicant directly with the Court of Queens Bench. Unsatisfied with the decisions of the Court of Queens Bench and further the decision regarding leave to Appeal to The Court of Appeal of New Brunswick, the Applicant did file Leave to Appeal with the Supreme Court of Canada. Part II Questions in issue

74 8. Should a Mortgagee be able circumvent the Residential Tenancies Act (S.N.B. 1975, c. R-

10.2) to therefore obtain a Eviction Order from Court of Queens Bench against a Residential tenant without first consulting with the Rentalsmen of New Brunswick? 9. Is the Court of Queens Bench limited in Jurisdiction regarding Residential Tenancy

Matters, further, was the Court of Queens Bench outside his jurisdiction or ultra vires his jurisdiction, to hear and decide these Residential Tenancy Matters?

10.

Did the Court of Queens Bench error in law by not deferring the matter of a Residential

Tenancy issue sua sponte to be decided first by the Chief Rentalsmen?

11.

Does the Residential Tenancies Act S.N.B. 1975, c. R-10.2 have higher standing than

the Property Act R.S.N.B. 1973, c. P-19, and as a consequence did the Learned Trial Judge, error in law by declaring a Mortgagee pursuant to a Power of Sale procedure, could rely on this, to lawfully, though, prematurely terminate a Residential Tenancy?

12.

Did the Court error in law, by not recognizing the Applicants five year, Long Term

Tenancy, consequently does the Appellants Tenancy survive the impugned Notice of Termination of Tenancy and Lease? Part III Statement of argument 13. In 1975, New Brunswick responded to the perceived needs of its growing and increasingly

urban population by enacting Residential Tenancy Legislation (I suggest, pursuant to the maxim the welfare of the people is the supreme law). Clear-cut statutory rights and duties were substituted for common law contract and property law principles, which had been evolving since feudal times. This simplified the issues that could arise between Landlords and Tenants, and the Chief Rentalsmen and appointed Rentalsmen, composed of lay persons, who were given jurisdiction to settle Residential Tenancy disputes. The intention of the New Brunswick Legislative assembly therefore was to draft and issue the Residential Tenancies Act, S.N.B. 1975, a complete code, which is congruent, and complimentary with the maxim Everyone may keep what he has got, unless and until someone else can prove a better title. Under such a dispute resolution regime, a Residential Landlord or Residential Tenant may file a complaint under the Residential Tenancies Act, R.S.N.B. 1975, to a Rentalsmen. The subject legislated Act designates that the Rentalsmen shall have three

75 duties -- investigation, mediation and decision making. If either the Tenant or Landlord are not satisfied with Rentalsmens decision, they (Landlord or Tenant) may within seven days apply to a judge of the Court of Queens Bench of New Brunswick for a review of the matter based upon the grounds that the decision was made without jurisdiction or on the basis of an error of law. The Court of Queens Bench of New Brunswick, may appoint a tribunal or act in a limited review capacity. After consideration of the matter, the Court may confirm the Rentalsmens decision, vary it, or reverse it. Where a judge allows the application, the judge may set aside the decision, order, notice of termination, notice to quit, notice to comply or order of eviction thereafter refer the matter to the Rentalsman or the Chief Rentalsman, as the case may be, with directions as to the manner in which the Rentalsman or the Chief Rentalsman is to proceed, and the Rentalsman or the Chief Rentalsman shall proceed with the matter in accordance with those directions. The act is clearly intended to be use by laypersons, being Residential Landlords and Residential Tenants to avail themselves of the relief, rights and duties found therewithin, without costly, complicated and prohibitive Court intervention. A similar process, to the one mentioned above was considered by The Court as intra vires, in Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 SCR 186.

14.

In the case of Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at

paragraph 10, the Supreme Court did write, regarding vesting jurisdiction in non-judicial bodies as follows: 10. I am well aware that this Court has held that the separation of powers under the Canadian Constitution is not strict, in that judicial functions, including the interpretation of law, may be vested in non-judicial bodies such as tribunals, and that conversely the judiciary may be vested with non-judicial functions: Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 728; Douglas College, supra, at p. 601. Indeed, the rise of the administrative state has been marked by the creation of institutions other than the courts on whom the legislature has conferred the power to interpret law, a function who had hitherto been performed by the judiciary. 15. In the case of Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570,

the Supreme Court of Canada did write regarding the topic of the Legislature conferring judicial functions on a body which is not a court: As Professor Hogg has noted in his work on Constitutional Law of Canada (1977), p. 129, there is no general "separation of powers" in the British North America Act, 1867. Our Constitution does not separate the legislative, executive, and judicial functions and insist that

76 each branch of government exercise only its own function. Thus it is clear that the Legislature of Ontario may confer non-judicial functions on the courts of Ontario and, subject to s. 96 of the B.N.A. Act, which lies at the heart of the present appeal, confer judicial functions on a body which is not a court. 16. The jurisdiction of the Chief Rentalsmen and his delegates is exclusive pursuant to section

26(3) of the Act No person shall obstruct, prohibit or interfere with the right of a rentalsman (b) to carry out his powers and duties under this Act. Except for the limited capacity of a judge of the Court of Queens Bench of New Brunswick as specified pursuant to section 27(1) of the Act therefore not until after the Chief Rentalsmens decision, therefore, until such time the Court has no power to determine any matters relative to the Residential Tenancies Act, S.N.B. 1975 17. The Courts Decision Dated 21st day of October 2011, should be overturned because of : The Court did Error in law, by failing to follow established Precedent; Lack of jurisdiction, in the circumstances, for the Court to make the subject impugned Order; The Court did Error in law, by improperly applying and interpretation of statutes namely N.B. Property Act verses the N.B. Residential Tenancy Act; The Court did Error in law, by improper interpretation of the Residential Tenancy Act regarding long term tenancy; Precedent 18. The Appellant brought to the Trial Judges attention the following case of Royal Bank Of

Canada v. Zonneveld, 2003 MBQB 24 (CanLII) where Justice SCHWARTZ J, decided under very similar circumstances, notably, in favour of the Residential Tenants. The Applicant submits that this decision being appealed, Royal Bank of Canada, et.al v. Andre Murray is disharmonious with mainstream Canadian jurisprudence on point and ought to be overruled. That particular Case of Royal Bank Of Canada v. Zonneveld, 2003, is one which is considered on all fours, (it is a lawsuit, in which all the legal issues are identical or so close as to make no difference), as it relates to this matter , before the Honorable Court, therefore the learned Trial Judge of first instance in this matter should have reached the same conclusion. Please find below excerpts of paragraphs 38 to 44 from the Royal Bank Of Canada v. Zonneveld, 2003 decision: [41] Having reviewed and considered its entire context, and applying the words of the R.T.A., and in particular the amended definition of landlord, in their grammatical and ordinary sense, harmoniously, with the scheme of that Act, its object and the intention of the Manitoba legislature, this Court must refuse the order of possession sought. The Mortgagee is bound to obtain possession in accordance with the R.T.A.

77 IX Final Result [44] The application for an order of possession against the Tenants is therefore refused. The application for an order of possession against the Owners is granted. The Mortgagee is entitled to its costs against the owner. 19. Upon comparison of the herewithin above referenced case of Royal Bank Of Canada v.

Zonneveld, 2003 and the herewithin action of Royal Bank Of Canada, et al. v. Andre Murray, it is noteworthy and will hopefully persuade the Court, that the conclusion of the comparison of the legislation in New Brunswick to legislation in Manitoba, the only difference was that, though the New Brunswick Act applies to everyone (by way of the use of the term notwithstanding, in section 2), the Act did not specifically state that a Mortgagee who was attempting to vacate a Residential Tenant, must do so according to the Act. Additionally a comparable section of above referenced legislation, in paragraph 9 of the Zonneveld decision, namely the New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13, section 17, is reproduced bellow, as follows: 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 20. The case now before this Court, has the same Mortgagee, the Royal Bank of Canada who

has again circumvented the New Brunswick Residential Tenancy Act, for the purpose of vacating a Residential Tenant, from premises which was subject of a Mortgage to the Royal Bank of Canada. The New Brunswick Residential Tenancy Act does not provide any rights to a Mortgagee to vacate a residential Tenant. The Residential Tenancy Act is NOTWITHSTANDING any other Act, agreement or waiver to the contrary pursuant to section 2 as follows: 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and 21. Since the Mortgagee reasonably would not have been able to evict the Residential

Tenant by applying to a Rentalsmen pursuant to the Residential Tenancies Act, S.N.B. 1975, moreover, since the subject Act does not provide any special termination right(s) for a Mortgagee, therefore the Mortgagee evidently chose to circumvent the Residential Tenancies Act, S.N.B. 1975. The Act clearly contemplates the relationship of a Mortgagor and Mortgagee in section 13(9.1) which states:

78 13(9.1)Subsections (7), (8) and (9) do not apply where the landlord transfers an estate in the property to a mortgagee solely for the purpose of mortgaging the real property of which the premises form all or a portion. 22. Section 13(9.1) of Residential Tenancies Act, S.N.B. 1975 makes it abundantly clear not

to provide any rights to a Mortgagee, unless of course the Mortgagor transfers the subject property to the Mortgagee. If the Mortgagee becomes the title holder, and after the appropriate notice, pursuant to the Residential Tenancy Act, then the Mortgagee subsequently becomes the Landlord, along with the rights and duties, including a right to terminate a tenancy.

23.

The Mortgagee did in fact change the setting, in which a residential Tenancy matters

resolved. The normal course of Residential Tenancy dispute, is one in which is informally resolved by the Chief Rentalsmen, of a meet of two laypersons, namely a Residential Tenant and a Residential Landlord. For a Layperson Residential Tenant to be dragged into the arena of the Court of Queens Bench, creates an unfair venue, (despite lack of jurisdiction) to have the matter aired. The Court of Queens Bench should have deferred the matter regarding residential Tenancies to the Chief Rentalsmen to have reviewed. Despite this monumental challenge, the Applicant did argue statutory interpretation, to overcome the Mortgagees claims that they had a right to vacant possession pursuant to the Mortgage, the Property Act and Common Law. The Mortgagees obfuscated the issues by concentrating their arguments on the credibility of the Applicant and Ad homonym attacks. Jurisdiction 24. The Learned Trial Judge did Error in law, in application and interpretation of statutes

namely the Residential Tenancies Act, S.N.B. 1975, c. R-10.2. The Court did error in law by failing to realize its lack of jurisdiction to make a ruling, in these circumstances, regarding Residential Tenancy Matters. As a consequence the Court should have granted the Applicants Rescinding Order Motion, and not granted the Respondents motions regarding priority of Mortgage or Termination of Tenancy. The Court did not address in writing the matter of a challenged jurisdiction. The Court did not claim to invoke its inherent jurisdiction, nor did the Plaintiff Mortgagee address or argue the point, sufficient to overcome this jurisdiction issue.

79 25. When examining the New Brunswick Residential Tenancies Act we can easily

understand the scheme of the Act, the object of the Act, and the intention of Parliament, we can be comprehended that Act, to enshrine the Law with the capacity and mandate, for protection of the deeply cherished community value of the sanctity of the home. This well known, well recognized, established principle of the sanctity of the home, is devised for the protection of individual security, further, applies to all homes and is the factor that makes Residential Tenancies so unique. The Applicant will refer to and rely on the well established principle of statutory interpretation, that: the legislature does not intend to produce absurd consequences. an interpretation may be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment a label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.

26. The Applicant argues that a label of absurdity must be attached to interpretations of the Residential Tenancies Act, that, which may defeat the purpose of a statute or render some aspect of it pointless or futile, furthermore, the Act, includes the defining terms of its application to be, NOTWITHSTANDING which includes Landlord and Tenant Act and or any other Act, agreement or waiver to the contrary, therefore, the situation is made abundantly clear and behoves the reader of the Residential Tenancies Act to avoid the absurdity of an interpretation of the Act, to somehow, not be applicable to Mortgaged premises sold at Auction pursuant to the Property Act. Inherent Jurisdiction The doctrine of inherent jurisdiction operates to ensure that there will always be a court

27.

which has the power to vindicate a legal right independent of any statutory grant. The Court which benefits from the inherent jurisdiction is the Court of general jurisdiction, namely, the Provincial Superior Court. The legitimate proposition that the institutional and constitutional position of Provincial Superior Courts warrants the grant to them of a residual jurisdiction over all Provincial matters where there is gap in statutory grants of jurisdiction. In this case regarding the Residential Tenancy Act, we do not read or find jurisdictional gaps, jurisdiction

80 to resolve tenancy matters is explicit, and granted specifically first to the Chief Rentalsmen or his delegates, this Residential Tenancy Act, used words which explicitly closes the jurisdictional question.

28.

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) Section 26 (3) of The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 is reproduced below: RENTALSMEN 26(1) The Lieutenant-Governor in Council may appoint one or more persons as rentalsmen who shall carry out such duties as are prescribed by this Act and the regulations. 26(3)No person shall obstruct, prohibit or interfere with the right of a rentalsman (a) to enter the premises where entry is made on a day other than a Sunday or other holiday and is made between eight oclock in the forenoon and eight oclock in the afternoon, or (b)to carry out his powers and duties under this Act. 29. The person known as the Rentalsmen, is the person who may carry out such duties, as

are legislated by Residential Tenancies Act, and has subject matter jurisdiction over matters regarding the Act. The question arises, what role does a Judge of The Court of Queens Bench of New Brunswick, have in relation to Residential Tenancies Act. In R. v. Caron, 2011 SCC 5, [2011] 1 SCR 78, this Court did answer that question, in the header of that decision: Indeed, the superior court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. The fundamental purpose (and limit) on judicial intervention is to do only what is essential to avoid a serious injustice. 30. Black's Law Dictionary (8th ed. 2004), at Page 996 provide the definition for

CONTRAVENE as follows: contravene, vb.1. To violate or infringe; to defy 2. To come into conflict with; to be contrary to 31. The Court of Queens Bench may act on its inherent jurisdiction only when those actions

do not come into conflict with any statutory provision, in this case the provisions of the Residential Tenancy Act.

81 32. In MacMillan Bloedel Ltd. v. Simpson, [1995] 4 SCR 725, in the header of that decision

this Court did write regarding inherent jurisdiction as follows: There is nothing exceptional in the exclusive nature of the transfer of the s. 96 power to the inferior tribunal. If an administrative scheme is to operate effectively with a minimum of procedural confusion, it is typically essential that the tribunal have exclusive power to decide the matters at issue. 33. In ONTARIO (ATTORNEY GENERAL) v. PEMBINA EXPLORATION CANADA LTD., [1989] 1 SCR 206 at paragraph 22 this Court did cite as follows: And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged. 34. When the Mortgagee circumvented the Chief Rentalsmen and went directly to the Court

of Queens Bench, the jurisdiction of the Court to hear the residential tenancy matter was ultra vires as they pertained to the Tenancy matter before the Court. With a superior Court it is assumed that they have jurisdiction unless there jurisdiction is clearly restricted, such as in this case, where the provincial legislature, through the Residential Tenancies Act (S.N.B. 1975, c. R-10.2), has clearly restricted that Jurisdiction. This was brought to the Trial Courts attention as a fact, but the Court did not address this very germane issue. Doctrine of Implied Repeal In further determining if the Court of Queens Bench has Jurisdiction to hear matters

35.

regarding the Residential Tenancies Act, may require the interpretation of two statues, namely: 36. Residential Tenancies Act, S.N.B. 1975, c. R-10.2 Judicature Act, R.S.N.B. 1973, c. J-2

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. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the following excerpt: Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones. [Cases: Statutes 159, 162. C.J.S. Statutes 287, 294. 37. Bouvier Law dictionary (Published 1856), definition of the Maxim Leges posteriores

priores contrarias abrogant is provided as:

82 Subsequent laws repeal those before enacted to the contrary. 2 Rol. R. 410; 11 Co. 626, 630. 38. The doctrine of implied repeal is a concept in English constitutional theory which states

that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed (i.e. no longer law). This method of statutory construction in this case, applies to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2. The concept of this stature is the newer statute later abrogates a prior statute only where the two are manifestly inconsistent with and repugnant to each other. The rationale for this form of construction is that the newer statute more accurately depicts the current societal mood or more appropriately applies Jurisdiction to a given subject. 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. 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. Black's Law Dictionary defines notwithstanding as Despite; in spite of.

39.

The subject section of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, which

includes notwithstanding is reproduced below as follows: 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b) arising or entered into before or after this Act comes into force. The subject section of the Judicature Act, R.S.N.B. 1973, c. J-2 which includes notwithstanding is reproduced below as follows: 9(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely:

83 40. To understand the use of the term and meaning of notwithstanding requires that we

interpret the subject Act. The interpretation of an Act is a question of law, and correctness is the standard of review applicable in this case. Statutory interpretation should be approached with the following analytical framework set out in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27, at pages 40 and 41: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 41. In applying this principle it is instructive to look at the objectives set out in section 9(1)

of the Judicature Act, R.S.N.B. 1973, c. J-2, which provides the Trial Division shall have and exercise general and original jurisdiction in all causes and matters, while at the same time, section 27(1), 27(2), 27(3), 27(5), 27(6), 27(7), 27(8), 27(9) and 27(10) of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2, clearly states the jurisdiction of a Judge of The Court of Queens Bench of New Brunswick in relation to matters governed by The Residential Tenancies Act. Appellant submits that the legislation in question (The Residential Tenancies Act.) is not by any means ambiguous, and the intention is to make abundantly clear the relationship, role and jurisdiction of Judge of The Court of Queens Bench of New Brunswick. The expression of one thing is the exclusion of the other. 42. Where legislation and case law are in conflict, there is a presumption that legislation

takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute. In Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). U.S. Supreme Court did state as follows: "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254. 43. In Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929) the

Supreme Court of Virginia did state:

84 "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." 44. In Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996) the

Supreme Court of Alaska: "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage."; 45. An analysis of the principle in Re Rizzo & Rizzo Shoes Ltd., supra, can also be

buttressed by the maxim expressio unius est exclusio alterius. The Residential Tenancies Act clearly defines the role of a judge of The Court of Queens Bench of New Brunswick, in relation to matters governed by the Residential Tenancies Act in section 27 of the Act. Section 27 regulates the jurisdiction of a Judge of The Court of Queens Bench of New Brunswick to act and in what capacity. If the legislation within the Residential Tenancies Act, intended that a Judge of The Court of Queens Bench of New Brunswick shall have unlimited jurisdiction already granted by Section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, then there would have been no need to include conditions on how a judge of The Court of Queens Bench of New Brunswick has jurisdiction to act and in what capacity, which has the effect of excluding while limiting the already granted jurisdiction of the Court as per the maxim expressio unius est exclusio alterius. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 provide the following excerpt: Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. Also termed Inclusio unius est exclusio alterius or enumeratio unius est exclusio alteriu. [Cases: Contracts 152; Statutes 195. C.J.S. Contracts 307, 318322, 327, 331; Statutes 323.] 46. The definition of Expressio Unius Est Exclusio Alterius may be found at the following

legal website and is reproduced below for convenience: (http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlterius.aspx ) 47. Applicant Andre Murray believes that the above mentioned principles of statutory

interpretation are persuasive, especially when considering, that when certain things are specified in a law, an intention to exclude all others from its operation may be inferred. Because of this expectation, the legislatures failure to mention the jurisdiction of the Court other than, in a

85 limited review of a decision of the Rentalsmen capacity, becomes grounds for inferring that it was deliberately exclusionary. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R10.2 specifically designates authority or jurisdiction to a Judge of The Court of Queens Bench of New Brunswick under subsection 27(1) specifically as the Court's power to decide a case or issue a decree only and not until after a decision has been made by a Rentalsmen.

48.

Applicant asserts regarding the New Brunswick Residential Tenancies Act S.N.B. 1975,

c. R-10.2, that the necessary condition on which the jurisdiction of the Court of Queens Bench can be engaged is under subsection 27(1); further, this may only occur after the prerequisite decision or Order of the Rentalsmen is or has been issued respectively; moreover, the Court of Queens Bench, has no unilateral Jurisdiction, to hear matters within the scope of the Residential Tenancies Act, which includes any matters of a Notice to Vacate a Residential Property or Termination of a Residential Tenancy.

49.

Applicant submits, that because of lack of Jurisdiction {pursuant to the Maxim Leges

posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, a.k.a. "Last in Time") and the Maxim Expressio Unius Est Exclusio Alterius (The express mention of one thing excludes all others) }, the Court of Queens Bench did error in law and consequentially should not have rendered a decision which would vacate, the Applicant from his residence in the City of Fredericton, as that decision is exclusively within the jurisdiction of the Rentalsmen only, consequence of the Applicants Residential Tenancy since year 2005, in accordance with the New Brunswick Residential Tenancies Act. Motion 4 - Priority of Mortgage 50. The Learned Trial Judge did Error in law, in application and interpretation of statutes

namely Property Act, R.S.N.B. 1973, c. P-19 (hereafter the Property Act) verses Residential Tenancies Act, S.N.B. 1975, c. R-10.2. The Courts finding may be found at paragraphs 163-176 of Justice Zol R. Dionnes decision Dated 21st day of October 2011. 51. The distinguishing section of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2 is

Section 2 as reproduced below:

86 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and 52. Black's Law Dictionary (8th ed. 2004), at Page 3378, defines notwithstanding as follows: notwithstanding, prep. Despite; in spite of 53. The Property Act, R.S.N.B. 1973, c. P-19, section 47(1) clearly provides that a Mortgagee exercising the power of sale, transfers that property subject to all estates, interests and rights that have priority to the Mortgage, priority rights such as those entrenched within the Residential Tenancies Act and assigned to the Residential Tenant. The relative section 47(1), of the Property Act, is provided below. 47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estate, interests and rights to which the mortgage has priority, but subject to all estates, interests and rights that have priority to the mortgage. 54. When the provided excerpt of the Property Act, section 47(1), is read with the Applicants referenced definitions included for interpretation, the following is the result (underlined words are defined in the subsequent brackets). A mortgagee exercising the power of sale conferred by section 44 (section 44 of the Property Act) may convey the property (Mortgage) sold (at auction), for such estate and interest therein as is the subject (having relevance to the current discussion) of the mortgage (prior written agreement) freed (to relieve or rid of what restrains, confines, restricts) from all estates, interests and rights to which the mortgage has priority (The status of being higher in degree or rank, pursuant to the Property Act ), but subject (exposed, or liable/ to bring under control or dominion) to all estates, interests and rights (subject of a right - The owner of a right; the person in whom a legal right is vested, in this case a Tenant, one who holds or possesses lands or tenements by any kind of right or title.) that have priority (The status of being higher in degree or rank, specifically a Tenants rights, pursuant to the Residential Tenancies Act, notwithstanding/ despite any other Act), to the mortgage. 55. As demonstrated and comprehended by the Applicant, the Property Act, section 47(1), when interpreted with the above provided referenced definitions, clearly provides that a Mortgagee exercising Power of Sale, (a provision within the N.B. Property Act.), therefore, transfers such property subject to or confined to all estates, interests and rights and or is subject to such rights as are notwithstanding the New Brunswick Property Act, such as those within the Residential

87 Tenancies Act; the Applicant claims shelter of Residential Tenancies Act, S.N.B. 1975, c. R10.2, Laws therefore affording rights which are notwithstanding the New Brunswick Property Act, therefore, causing all relative encumbrances/obligations attributed to the Tenant to travel uninterrupted, remain intact and transferable to a Tenant, from seller to purchaser of the Property. 56. For further clarification, let us review The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 which states: 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 57. Examining the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, we can easily understand the scheme of the Act, the object of the Act, furthermore the intention of Legislative Assembly of New Brunswick can be comprehended to enshrine the Law with capacity and mandate for protection of the deeply cherished community value of the sanctity of the home, a factor that makes Residential Tenancies so unique. The Applicant will again refer to and rely on the well established principle of statutory interpretation, therefore, the conclusion is that a label of absurdity must be attached to interpretations of the Residential Tenancies Act, S.N.B. 1975, c. R10.2,, that, which may defeat the purpose of that statute or render some aspect of it pointless or futile (security of tenure), therefore, the situation is made abundantly clear and behoves the reader of the New Brunswick Residential Tenancies Act, to avoid the absurdity of an interpretation of the Residential Tenancies Act, to somehow, not be applicable to Mortgaged premises sold at Auction pursuant to the Property Act. 58. Except where otherwise specifically provided for in this the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding (in spite of, even if, without regard to or impediment by other things as stated) the Landlord and Tenant Act or any other Act (the Property Act), agreement or waiver to the contrary. Motion 5 - Termination of Tenancy 59. The Learned Trial Judge did error in law, in application and interpretation of statutes

namely the Residential Tenancies Act, S.N.B. 1975, c. R-10.2. However, subject Courts finding

88 may be found at paragraphs 197 -199 of Justice Zol R. Dionnes decision Dated 21st day of October 2011. Please Note that the Applicant has paid rent, uninterrupted for the subject property from the beginning of tenancy and currently continues as of the Dating of this document.

60.

Following, the Date of March 31, 2010 at midnight, according to the April 1, 2005 Lease

and calculated concurrently with the current Year to Year Lease Dated September 1, 2005, which the Learned Trial Judge did accept into the record, the Applicant is confirmed as a Long Term Tenant according to Residential Tenancies Act, and effectively the termination of tenancy conditions changed substantially. The Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24.2 is provided below: LONG TERM TENANCIES Application of sections 24.3 to 24.7 24.2 Sections 24.3 to 24.7 apply to all tenancies of premises, other than mobile home sites, that have been occupied by the same tenant for five consecutive years or more. 61. Since the Applicants Tenancy is categorized by the Residential Tenancies Act, as a Long Term, therefore terminations of tenancy requisites are substantially different, than a Year to Year Tenancy category. A relevant section (at this point), of the Residential Tenancies Act, is section 24(1.1), regarding long term tenancies, is (e), which is that a notice of termination served by a landlord under this Act shall state the reason for the termination, if otherwise required by this Act (Residential Tenancies Act) to do so. Following March 31, 2010, a notice of termination served upon Tenant Andr Murray by a landlord under this Residential Tenancies Act, shall (must) state the reason for the termination as required by this Act to do so.

62. The subject Notice of Termination of Tenancy and Lease Dated May 20, 2010, (hereafter called the Notice of Termination of Tenancy) is conspicuously absent the reason for the termination as required by this Residential Tenancies Act, S.N.B. 1975, c. R-10.2., section 24(1.1). It is made clear by section 24.7(1)and section 24.7(2) of The New Brunswick Residential Tenancies Act, that where a tenant (as is the case in this matter) has occupied premises for five consecutive years or more, the Landlord shall not serve a notice of termination of Tenancy unless the Landlord provides one of the following reasons for doing so:

89 (a) the landlord intends in good faith that the premises will be occupied by the landlord, the landlords spouse, a child of the landlord, a parent of the landlord or a parent of the landlords spouse, (b) the premises occupied by the tenant will be used other than as residential premises, (c) the premises will be renovated to such an extent that vacant possession is necessary to perform the renovation, or (d) the tenancy arises out of an employment relationship between the tenant and the landlord in which the employment relates to the maintenance or management of the premises, or both, and the employment relationship is terminated. 24.7(2)A landlord who serves a notice of termination of a tenancy under subsection (1) shall state the reason for the termination in the notice of termination. 63. Please note that none of the above noted reasons of The New Brunswick Residential Tenancies Act 24.7(1) (a), (b), (c) or (d) were provided on the impugned Notice of Termination of Tenancy, furthermore, section 24.7(2) the Act, was, as well, not complied with by the Respondents, therefore, the subject Notice of Termination of Tenancy is impugned, therefore does not apply to the Tenants lease status and the Tenants Lease may continue uninterrupted, furthermore, the impugned notice is in fact void according to the Act. Part IV 64. Costs on Application for Leave to Appeal in favour of the Applicant. Part V Order or orders sought 1. That the Supreme Court grants the Applicant, leave to appeal to the Supreme Court of Canada. 2. Costs on Application for Leave to Appeal in favour of the Applicant.

______________________ Applicant Andre Murray

90 Part VI Table of authorities Alphabetical Paragraph 1. 2. 3. 4. 5. 6. Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992)___________ 42 Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854,________ 14 Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570,______ 15 MacMillan Bloedel Ltd. v. Simpson, [1995] 4 SCR 725___________________ 32

Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996)__ 44 ONTARIO (ATTORNEY GENERAL) v. PEMBINA EXPLORATION CANADA LTD., [1989] 1 SCR 206___________________________________ 33

7. 8. 9.

R. v. Caron, 2011 SCC 5, [2011] 1 SCR 78 ____________________________ 29 Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929)____________ Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 SCR 186 _________________________________________________ 15 43

10.

Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII)____________ 18

91 Part VII Legislation Judicature Act, R.S.N.B. 1973, c. J-2 9(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely: (a) all causes and matters, civil and criminal, that were within the exclusive cognizance of the Supreme Court in the exercise of its original common law jurisdiction, before the commencement of the Judicature Act, 1909; (b) all causes and matters that prior to July 1, 1966, were assigned to or cognizable by the Chancery Division; (c) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the County Court of New Brunswick; and (d) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the Queens Bench Division of the Supreme Court. Loi sur lorganisation judiciaire (L.R.N.B. 1973, ch. J-2) 9(1)Nonobstant les dispositions de la prsente loi, dune autre loi ou des Rgles de procdure, la Division de premire instance possde et exerce sa comptence gnrale et de premire instance dans toutes les causes et questions notamment dans les domaines suivants, savoir : a)dans toutes les causes et questions civiles et criminelles qui taient du ressort exclusif de la Cour suprme dans lexercice de sa comptence de common law en premire instance avant la date dentre en vigueur de la loi intitule The Judicature Act, 1909 ; b)dans toutes les causes et questions qui, avant le 1er juillet 1966, taient attribues la Division de la Chancellerie ou relevaient de sa comptence, c)dans toutes les causes et questions qui, avant le 4 septembre 1979, taient du ressort de la Cour de comt du NouveauBrunswick; et d)dans toutes les causes et questions qui, avant le 4 septembre 1979, taient du ressort de la Division du Banc de la Reine de la Cour suprme.

New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision.

Loi dinterprtation (L.R.N.-B. 1973, ch. I-13) 17 Toute loi, tout rglement et toute disposition de ceux-ci sont rputs rparateurs et doivent faire lobjet de linterprtation large, juste et librale, la plus propre assurer la ralisation de leurs objets.

92 The Residential Tenancies Act (S.N.B. 1975, c. R-10.2) 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b) arising or entered into before or after this Act comes into force. Loi sur la location de locaux dhabitation (L.N.-B. 1975, ch. R-10.2) 2 La prsente loi, moins quelle nen dispose autrement de faon expresse, sapplique aux locations de locaux dhabitation et aux conventions de location relatives ces locaux a) nonobstant la Loi sur les propritaires et locataires ou toute autre loi, convention ou renonciation renfermant des dispositions contraires; et b) existant ou conclues avant ou aprs lentre en vigueur de la prsente loi. 13(7) Lorsquun propritaire transfre son droit de tenure sur les biens rels constitus en totalit ou en partie par les locaux lous, a) le cessionnaire assume la totalit des obligations affrentes la location prenant naissance aprs la notification du transfert conformment au paragraphe (8), et b) nulle action ne peut tre engage lencontre du cdant en ce qui concerne toute obligation affrente la location prenant naissance aprs la notification du transfert conformment au paragraphe (8). 13(8) Lorsquun propritaire transfre son droit de tenure sur les biens rels constitus en tout ou en partie par les locaux lous, il doit en aviser le mdiateur des loyers et le locataire au moyen de la formule prescrite par rglement dans les sept jours de ce transfert. 13(9) Lorsquun cessionnaire assume les obligations affrentes une location en conformit du paragraphe (7), il a la qualit de propritaire pour tous les objets de la prsente loi.

3(7) Where a landlord transfers his estate in the real property of which the demised premises form all or a portion (a) the transferee assumes all of the obligations with respect to the tenancy; and (b) no action lies against the transferor for any obligation with respect to the tenancy; arising after notification of the transfer takes place in accordance with subsection (8). 13(8) Where a landlord transfers his estate in the real property of which the demised premises form all or a portion he shall notify the rentalsman and the tenant of such transfer in the form prescribed by regulation within seven days after such transfer. 13(9) Where pursuant to subsection (7) a transferee assumes the obligations with respect to a tenancy, he is a landlord for all purposes of this Act.

93

13(9.1) Subsections (7), (8) and (9) do not apply where the landlord transfers an estate in the property to a mortgagee solely for the purpose of mortgaging the real property of which the premises form all or a portion. LONG TERM TENANCIES Application of sections 24.3 to 24.7 24.2 Sections 24.3 to 24.7 apply to all tenancies of premises, other than mobile home sites, that have been occupied by the same tenant for five consecutive years or more. 24.7(1)Where a tenant has occupied premises for five consecutive years or more, the landlord shall not serve a notice of termination of the tenancy unless (a)the landlord intends in good faith that the premises will be occupied by the landlord, the landlords spouse, a child of the landlord, a parent of the landlord or a parent of the landlords spouse, (b)the premises occupied by the tenant will be used other than as residential premises, (c)the premises will be renovated to such an extent that vacant possession is necessary to perform the renovation, or (d)the tenancy arises out of an employment relationship between the tenant and the landlord in which the employment relates to the maintenance or management of the premises, or both, and the employment relationship is terminated.

13(9.1) Les paragraphes (7), (8) et (9) ne sappliquent pas lorsque le propritaire transfre un droit de tenure sur les biens un crancier hypothcaire dans le seul but dhypothquer les biens rels dont les locaux forment la totalit ou une partie. LOCATIONS DE LONGUE DURE Application des articles 24.3 24.7 24.2 Les articles 24.3 24.7 sappliquent toutes les locations de locaux, autres que les emplacements de maison mobile, qui ont t occups par le mme locataire durant au moins cinq annes conscutives. 24.7 (1)Lorsquun locataire a occup les locaux pendant au moins cinq annes conscutives, le propritaire ne peut signifier un avis de rsiliation dune location que si a) le propritaire a lintention, de bonne foi, que les locaux soient occups par lui-mme, son conjoint, un de ses enfants ou parents ou un parent de son conjoint, b) les locaux occups par le locataire seront utiliss autrement quaux fins rsidentielles, c) les locaux seront rnovs un point tel quil est ncessaire quils soient vacants pour lexcution des rnovations, ou d) la location rsulte dune relation demploi entre le locataire et le propritaire qui consiste dans lentretien ou la gestion des locaux ou les deux, et que cette relation demploi a pris fin.

94 24.7(2) A landlord who serves a notice of termination of a tenancy under subsection (1) shall state the reason for the termination in the notice of termination. RENTALSMEN 26(1) The Lieutenant-Governor in Council may appoint one or more persons as rentalsmen who shall carry out such duties as are prescribed by this Act and the regulations. 26(3)No person shall obstruct, prohibit or interfere with the right of a rentalsman (a) to enter the premises where entry is made on a day other than a Sunday or other holiday and is made between eight oclock in the forenoon and eight oclock in the afternoon, or (b)to carry out his powers and duties under this Act. 24.7(2) Le propritaire qui signifie un avis de rsiliation dune location en vertu du paragraphe (1) doit indiquer le motif de la rsiliation dans lavis de rsiliation. MDIATEURS DES LOYERS 26(1) Le lieutenant-gouverneur en conseil peut nommer mdiateurs des loyers une ou plusieurs personnes qui exercent les fonctions prescrites par la prsente loi et le rglement. 26(3) Il est interdit quiconque de sopposer, faire obstacle ou porter atteinte au droit dun mdiateur des loyers a) dentrer dans les locaux si cette entre a lieu un jour autre quun dimanche ou un autre jour fri, entre huit heures du matin et huit heures du soir, ou b) dexercer les pouvoirs et fonctions que lui confre la Loi.

The Property Act, R.S.N.B. 1973, c. P-19, 47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estate, interests and rights to which the mortgage has priority, but subject to all estates, interests and rights that have priority to the mortgage.

Loi sur les biens (L.R.N.-B. 1973, ch. P-19) 47(1)Un crancier hypothcaire qui exerce le pouvoir de vente que confre larticle 44 peut transfrer les biens vendus, dans la mesure du droit de tenure et autre droit qui fait lobjet de lhypothque, libres de tous les droits de tenure et autres droits sur lesquels lhypothque a priorit, mais charge de tous les droits de tenure et autres droits qui ont priorit sur lhypothque.

Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones. Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another