December 14, 2012, Applicant's Brief to be used for Charter Challenge Application. FM/27/12 Charter Challenge - Charter Application – Andre Murray v. ROYAL BANK OF CANADA, 501376

7/30/2019 December 14, 2012, Applicant's Brief to be used for Charter Challenge Application. FM/27/12 Charter Challenge -

1/50


2/50

INDEX

A. PART I - STATEMENT OF FACTS .................................................................................. 1

B. PART II ISSUES ................................................................................................................ 3

(1) Questions for the Court to Answer .......................................................................... 3

(2) Introduction ................................................................................................................ 3

(3) The Grounds ............................................................................................................... 8

(A)Injunctive Relief ................................................................................................. 8(1) They Must Show There Is a Serious Issue to Be Tried................................ 9

(2) They Must Prove They Will Suffer Irreparable Harm if the InjunctionIs Not Granted ................................................................................................. 11

(3) They Must Prove that the Balance of Convenience Favors the Grantingof the Injunction ............................................................................................... 13

(4) Conclusion ................................................................................................. 16

(B)Section 7 CharterAnalysis ................................................................................ 18(1)Does this Claim Follow Within the Scope of Section 7? ........................... 19

(i)Is There Sufficient State Action? ....................................................... 19

(ii)Is the State Action the Cause of the Deprivation? ........................... 20

(2)Is There a Deprivation of One of the Protected Rights? ........................... 22

(i)Liberty ............................................................................................... 22

(ii) Security of the Person ...................................................................... 23

(C)Is the Deprivation in Accordance with the Principles of FundamentalJustice? ...................................................................................................................... 24

(1) Overview .................................................................................................... 24

(2)Application in Non-Criminal Legislation .................................................. 27


3/50

ii

ii

(3) Overbreadth ............................................................................................... 28

(4)Arbitrary Provisions .................................................................................. 29

(5)Analysis ...................................................................................................... 30

(D)Section 15(1) ...................................................................................................... 32(E) Section 1 .............................................................................................................. 32

(1)Overview .................................................................................................... 32(2)Important Objective ................................................................................... 34

(3) Proportionality ........................................................................................... 35

(i)Rational Connection .......................................................................... 35

(ii)Minimal Impairment......................................................................... 36

(iii)Is the Impact Disproportionate? ..................................................... 36

(4) Conclusion Regarding Section 1 ................................................................ 37

(4) Remedy ........................................................................................................................ 37

(5) Cost Orders in Favor of Self-Represented Litigants ............................................... 40

C. PART III ORDERS SOUGHT ......................................................................................... 44


4/50

A. PART ISTATEMENT OF FACTS

1. As of April 2012, the Applicant Andr Murray (hereinafter the Applicant) has been a

residential tenant at the same location, paying monthly rent uninterrupted to the same Landlords

bank account for seven consecutive years. The Applicant has never been served a valid Notice

of Termination of Tenancy or a Form 8 Notice of Transfer by the Landlord, Betty Rose

Danielski (hereinafter the Landlord) in accordance with New Brunswicks Residential

Tenancies Act, S.N.B. 1975, Cap. R-10.2, subsection 13(8).

2. On March 28, 2005, the Applicant signed a four-year Form 6 Residential Lease (Standard

Form of Lease) with the Landlord for the duplex property located at 29 and 31 Marshall Street,

Fredericton, New Brunswick (hereinafter Property).

3. On September 1, 2005, the Applicant signed a year-to-year Form 6 Residential Lease

(Standard Form of Lease) with the Landlord for each of the units at subject residential duplex

Property at 29 and 31 Marshall Street, Fredericton, New Brunswick.

4. On October 21, 2011 at 2:00 p.m., at the Court of Queens Bench Moncton Trial Division,

the Honourable Mr. Justice Zoel R. Dionne gave his oral decision which was and/or is applicable

to five motions, moreover, a decision which was to encompass all five motions of seven

outstanding motions before the Honourable Mr. Justice Zoel R. Dionne.

5. The Applicant is a residential tenant and leaseholder of the Property.

6. The Respondent Royal Bank of Canada (hereinafter Royal Bank), is a chartered bank

having its head office in Montreal, Quebec, and having a branch office located in Fredericton,

New Brunswick.

7. The Respondent, 501376 N.B. Ltd., is a body corporate (empty shelf company without

equity) with its owners office being Mecca Corporation on the 211 Doak Road, Fredericton,

New Brunswick.


5/50

- 2 -

8. The Respondent, The Honourable Marie-Claude Blais, Q.C., is Minister of Justice and

Attorney General for the Province of New Brunswick, with office located at 670 King Street,

Fredericton, New Brunswick, E3B 1G1.

9. The Respondent, The Honourable Robert Douglas Nicholson, is Minister of Justice and

Attorney General of Canada, with office located at 284 Wellington Street, Ottawa, Ontario, K1A

0H8.

10. The Applicant issued a copy of the neither vexatious nor frivolous Notice of Application

pursuant to subclause 22(3)(a)(i) of the Judicature Act, R.S.N.B. 1973, Cap. J-2, to each of the

Attorney General for New Brunswick and the Attorney General for Canada, confirming that a

constitutional issue has been raised in this case, namely whether or not the Residential Tenancies

Act, supra, or that the Property Act, R.S.N.B. 1973, Cap. P-19,subsection 47(1) infringes upon,

and is invalidated by, sections 7, 8 and 9 and subsection 15(1) of the Canadian Charter of Rights

and Freedoms (hereinafter Charter).

11. The Applicant has been a victim of multiple section 7 and subsection 15(1) Charter

violations as described within the Notice of Application. The Applicant has been caused undue

and unnecessary emotional and physical distress and suffering as a result of the aforementioned

Charterviolations;

12. This is an appropriate Court under subsection 24(1) of the Charterto hear, determine and

remedy the above-noted Charterviolations.


6/50

- 3 -

B. PART IIISSUES

QUESTIONS FOR THE COURT TO ANSWER

1. Does theResidential Tenancies Act, S.N.B. 1975, Cap. R-10.2,, violate the section 7 and orsubsection 15(1) of the Charter?

2. Does the Property Act, R.S.N.B. 1973,supra, violate the section 7 and/or subsection 15(1) ofthe Charter?

13. If the Court answers question 1 with a positive answer, then the Applicant should be

granted the relief sought and a declaration shall be made as requested in the Orders sought

Section C. PART III ORDERS SOUGHT of this Brief.

14. If the Court answers question 2 with a positive answer then the Applicant should be

granted the relief sought and a declaration shall be made as requested in the Orders sought

Section C. PART III ORDERS SOUGHT of this Brief.

PRINCIPLES OF LAW

The Impugned Acts in question are as follows:

(2) Introduction

15. The Applicant kindly requests this Honourable Court to take judicial notice in reviewing

this application. Moreover, whenever it is necessary to assure that justice is done.

16. Democratic values and principles under the Charter demand that legislators and the

executive take judicial Notice and other factors into account; and if they fail to do so, courts

should stand ready to intervene to protect these democratic values as appropriate. As others have

so forcefully stated, judges are not acting undemocratically by intervening when there are

indications that a legislative or executive decision was not reached in accordance with the

democratic principles mandated by the Charter.


7/50

- 4 -

17. To respond, it should again be emphasized that our Charter's introduction and the

consequential remedial role of the Courts were choices of the Canadian people through their

elected representatives, as part of a redefinition of our democracy. Our constitutional design was

refashioned to state that, henceforth, the legislatures and executive must perform their roles in

conformity with the newly conferred constitutional rights and freedoms. The courts are then the

trustees of these rights, insofar as when disputes arise concerning their interpretation, which is a

necessary part of this new design.

18. Courts in their trustee or arbiter role must perforce scrutinize the work of the legislature

and executive, not in the name of the courts, but in the interests of the new social contract that

was democratically chosen. All of this is implied in the power given to the courts under

section 24 of the Charterand section 52 ofThe Constitution Act, 1982,Schedule B to the Canada

Act 1982 (UK), 1982, c. 11.

The Grounds

19. The Applicant brings this application pursuant to subsection 24(1) of the Charterwhich

provides for remedy to the individual whose rights pursuant to the Charter have been

infringed. A court of competent jurisdiction is a tribunal that has jurisdiction over the person

and the subject matter, and, in addition has the authority to make the order sought. In this case

the Court of Queens Bench, being a Superior Court, is such a court that has jurisdiction over the

person and the subject matter, so that pursuant to subsection 24(1) of the Charter, the Court of

Queens Bench Trial Division has the authority to make the order sought and found herein. The

Chartermatters before this Court are:

a) That subsection 47(1) of the Property Act, supra, is impugned legislation because it isworded in such a manner as to be manipulated and/or misinterpreted, to consequentiallyviolate and or circumvent the Charterprotected rights of residential tenants;

b) The Residential Tenancies Act, supra, is unequivocally NOTWITHSTANDING allother acts and, despite this, mortgagees are continuing to blatantly benefit from specialand unequal benefit of the law as in this case; the Honourable Mr. Justice Zoel R. Dionnehas established a precedent which, if allowed to stand, will continue to enable mortgageesto violate residential tenants rights and for this reason, the legislation must be consideredimpugned and in need ofChartercompliance to be brought into alignment with Chartervalues;


8/50

- 5 -

c) The Residential Tenancies Act, supra, properly protects tenants and the Charterprotected rights of residential tenants; however, as in this application the Royal Bank, and501376 N. B. Ltd.; the Court of Queens Bench Trial Division and certain Law SocietyMembers have all participated to circumvent the Residential Tenancies Act, supra, in

violation of the Charterrights of the Applicant;

d) The Residential Tenancies Act, supra, is also fatally deficient in providing Charterprotection by properly protecting residential tenancy rights, and must be amended tobring it into compliance with the Charter, as is incumbent upon all provinces.

Residential Tenancy Act

20. The Applicant would like to highlight that as a residential tenant in the Province of New

Brunswick, he has residential tenancy rights granted pursuant to the Residential Tenancies Act,

supra, which should be congruent with the values of the Charter. The procedure by which a

residential tenant may have his residential rights displaced or infringed is only according to the

Residential Tenancies Act, supra. Residential tenancy rights protect a most vulnerable element of

society. Public policy through the Residential Tenancies Act, supra, expressed and crystallized

the public importance of not having residential tenancy rights infringed upon. TheActprovides a

vehicle by which rights may be protected through negotiation (when necessary), moreover

enforcement of the legislation occurs (as intended by legislators) without costly court

intervention.

21. Subsection 2(a) and (b)s all encompassing notwithstanding clause of the Residential

Tenancies Act, supra, does express with irresistible clearness the intention of the Legislature to

moderate the common law rights of the mortgagee. The Residential Tenancies Act, supra, as a

public policy contemplates the rights of tenants and landlords not mortgagees, but it does not

provide an exemption clause for mortgagees, nor does the subjectActprovide the mortgagee any

special rights of eviction of residential tenants. Despite this glaring fact, the Applicant has had

his Charter protected residential tenancy rights violated by the mortgagee, who erroneously

claims the supremacy of the Property Act, supra, thereafter further benefited from the

exploitation of claimed defects (loop holes) in the Residential Tenancies Act, supra, to the

benefit of Royal Bank of Canada and 501376 N.B. Ltd., and collaterally to the detriment of the

Applicant.


9/50

- 6 -

22. Due to public interest, changes in residential tenancies acts of other provinces have

occurred in line with Chartercompliance requirements which New Brunswick should also

have done. The Royal Bank and 501376 N.B. Ltd., have themselves volunteered repeatedly and

referred to the fact that residential tenancies acts have been changed in other provinces to align

them with the Charter. Both the Royal Bank and 501376 N.B. Ltd. further assert that the New

BrunswickResidential Tenancies Act, supra, is unlike other provinces which have amended their

tenancy acts. The Applicant believes that it is of great importance that the Province of New

Brunswick should create legislative uniformity with other provinces and align the Residential

Tenancies Act, supra with the Charter, pursuant toAn Act Respecting Compliance of Acts of the

Legislature with the Canadian Charter of Rights and Freedoms, S.N.B. 1983, Cap. 4 andAn Act

Respecting Compliance of the Laws of the Province with the Canadian Charter of Rights andFreedoms, S.N.B. 1985, Cap. 41.23. On behalf of the Royal Bank and 501376 N.B. Ltd., Lawyer George H. LeBlanc,

encouraged the Court of First instance and Court of Appeal Justice to overlookResidential

Tenancies Act, supra, subsection 26(3)No person shall obstruct, prohibit or interfere with the

right of a rentalsman (b) to carry out his powers and duties under this Act., which is a

violation of the Applicants section 7 and subsection 15(1) rights under the Charter, furthermore,

this is a violation of the principles per Semaynes Case (1604) of sanctity of the home, for that

reason constitutes a failure of the Court of Queens Bench to take judicial notice of the facts and

current applicable law.

24. The Applicant believes he will prove that, for anyone to cause an eviction of a residential

tenant, the New Brunswick Rentalsman should have, according to theResidential Tenancies Act,

supra, first received from the landlord an application for eviction, and only after the rentalsman

has consulted with both the landlord and tenant attending at a meeting for discovery of the

matter, would the rentalsman offer remedy; however, should the remedy offered by the

rentalsman not be satisfactory to either of the parties, the rentalsman may by referral defer the

matter and the tenant and or landlord could then go the Court of Queens Bench, in that special

capacity of a Court of review, however remaining in pursuance with the Residential Tenancies

Act, supra.


10/50

- 7 -

The Charter

25. The Applicant asserts New Brunswicks legislation has not been updated to comply with

section 7 and 15(1) of the Charter and is therefore impugned and in need of legislative

amendment under New Brunswicks An Act Respecting Compliance of Acts of the Legislature

with the Canadian Charter of Rights and Freedoms, supra, and An Act Respecting Compliance

of the Laws of the Province with the Canadian Charter of Rights and Freedoms , supra, which is

a matter of national uniformity.

26. The New Brunswick Courts have allowed behavior that must be considered morally wrong

or offensive to ones sensibilities; for the New Brunswick Judiciary to allow mortgagees tocircumvent theResidential Tenancies Act, supra, which was intended to be a lawful, timely, cost

effective body for just resolution of this Applicants tenancy issues. For this reason, New

Brunswick Courts have demonstrated evident bias, which is a violation of the Applicants section

7 and 15(1) Charterrights: liberty and security of the person; equal protection and equal benefit

without discrimination, in and before the law, consequentially confirming this is a matter of great

public interest and importance.

27. It is a travesty of justice that the Applicant could have his section 7 Charterrights violated,

as a consequence of the Court allowing a mortgagee to circumvent the Residential Tenancies

Act, supra, thereby trampling on his guaranteed Charter rights after paying uninterrupted

monthly rent for the Property to the Landlord for seven consecutive years.

28. The Supreme Court has held on a number of occasions that the right to security of the

person protects both the physical and psychological integrity of the individual. For a rule or

principle to constitute a principle of fundamental justice for the purposes of section 7, it must be

a legal principle, about which there is significant societal consensus that it is fundamental to the

way in which the legal system ought to fairly operate, and it must be identified with sufficient

precision to yield a manageable standard against which to measure deprivations of life, liberty or

security of the person, in this case theResidential Tenancies Act, supra.


11/50

- 8 -

(3) The Grounds

(A)Injunctive Relief

29. The applicableRules of Courtto be considered are as follows:

40.01 A request for an interlocutory injunction or mandatory order, or for anextension thereof, may be made:

(a) before commencement of proceedings, by preliminary motion, and

(b) after commencement of proceedings, by motion, but in the former case, the

request may be granted only on terms providing for commencement of

proceedings without delay.

40.05 An injunction or mandatory order may be made under this rule either

unconditionally or upon terms and conditions as may be just.

Rules of Court, N.B. Regulation 82-73, Rules 40.01 and 40.05

30. TheJudicature Act, supra, provides the following:

33. An order on judicial review or an injunction may be granted or a receiver

appointed by an interlocutory order of the Court in all cases in which it

appears to the Court to be just or convenient that the order should be made;

and any such order may be made either unconditionally or upon such terms

and conditions as the Court thinks just; and if an injunction is asked, either

before or at or after the hearing of any cause or matter, to prevent a threatened

or apprehended waste or trespass, such injunction may be granted, if the Court

thinks fit, whether the person against whom the injunction is sought is, or is

not, in possession under any claim of title or otherwise, or, if out of possession,

does or does not claim under any colour of title a right to do the act sought to

be restrained, and whether the estates claimed by both or either of the parties

are legal or equitable; but without the leave of the Attorney General no

injunction shall be applied for that, if granted, would delay or prevent the

construction or operation of any manufacturing or industrial plant on the

ground that the discharge from such plant is injurious to some other interest.

Judicature Act,supra, s. 33

31. Black's Law Dictionary provides the following definition of injunction:

injunction, n. A court order commanding or preventing an action. To get an

injunction, the complainant must show that there is no plain, adequate, and

complete remedy at law and that an irreparable injury will result unless the

relief is granted. Also termed writ of injunction. See IRREPARABLE-


12/50

- 9 -

INJURY RULE. [Cases: Injunction 1. C.J.S. Injunctions 24, 12, 14, 22, 24,

166.]

Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,8th ed.,injunction.(Thomson/West, 2004)at pp. 2296 & 2297

In a general sense, every order of a court which commands or forbids is an

injunction; but in its accepted legal sense, an injunction is a judicial process or

mandate operating in personam by which, upon certain established principles

of equity, a party is required to do or refrain from doing a particular thing. An

injunction has also been defined as a writ framed according to the

circumstances of the case, commanding an act which the court regards as

essential to justice, or restraining an act which it esteems contrary to equity

and good conscience; as a remedial writ which courts issue for the purpose of

enforcing their equity jurisdiction; and as a writ issuing by the order and

under the seal of a court of equity.

Joyce, Howard C., A Treatise on the Law Relating to Injunctions, Volume 1(Albany, M. Bender, 1909)p 2-3

32. In 508692 N.B. LTD. v. Brodersen Realty Ltd., Justice William T. Grant stated the

following:

In order to succeed in a motion for an interim injunction the plaintiff must meet

the test approved by the Supreme Court of Canada in RJR MacDonald and

Imperial Tobacco v. Canada, 1994 CanLII 117 (S.C.C.), [1994] 1 S.C.R. 311

which is:

a) they must show there is a serious issue to be tried;b) they must prove they will suffer irreparable harm if the injunction is not

granted; and

c) they must prove that the balance of convenience favors the granting ofthe injunction.

508692 N.B. LTD. v. Brodersen Realty Ltd., 2008 NBQB 101 (CanLII), at

para. 8

(1) They Must Show There Is A Serious Issue To Be Tried

33. Applicant will show there is a serious issue to be tried, thereby establishing principles

governing rights of New Brunswick residential tenants.


13/50

- 10 -

34. The first test is a preliminary and tentative assessment of the merits of the case, but there is

more than one way to describe this first test, this description is provided in Manitoba (A.G.) v.

Metropolitan Stores Ltd., [1987] 1 SCR 110 (CanLII), atpara.32:

32. The first test is a preliminary and tentative assessment of the merits of the case,but there is more than one way to describe this first test. The traditional way consistsin asking whether the litigant who seeks the interlocutory injunction can make out aprima facie case. The injunction will be refused unless he can: Chesapeake andOhio Railway Co. v. Ball, [1953] O.R. 843,perMcRuer C.J.H.C., at pp. 854-55. TheHouse of Lords has somewhat relaxed this first test in American Cyanamid Co. v.Ethicon Ltd., [1975] l All E.R. 504, where it held that all that was necessary to meetthis test was to satisfy the Court that there was a serious question to be tried asopposed to a frivolous or vexatious claim. Estey J. speaking for himself and fiveother members of the Court in a unanimous judgment referred to but did not

comment upon this difference inAetna Financial Services Ltd. v. Feigelman, [1985]l S.C.R. 2, at pp. 9-10.

35. InPetro-Canada v. Les ImmeublesRobo, the Honourable Justice Raymond J. Guerette

stated:

The Law

There is a long line of cases supporting the test laid down in American

Cyanamid Co. v. Ethicon Ltd.,[1975] 1 All ER 504 which stated that, before

an interlocutory injunction could be issued, the applicant must meet three

requirements:

First, a preliminary assessment must be made on the merits of the case to

ensure that there is a serious question to be tried, one that is neither vexatious

nor frivolous. Also, the applicant must have a reasonable prospect of

succeeding at trial.

. . .

This test has been endorsed in R.J.R. Macdonald Inc. v. Canada (AttorneyGeneral),1994 CanLII 117 (S.C.C.), [1994] 1 S.C.R. 311 and also in Canada

East Manufacturing Inc. v. Harvey & Maritime Wire Co.,1996 CanLII 4872

(NB C.A.), [1996] 183 N.B.R. (2d) 293 (N.B.C.A.). Also,Metropolitan Stores(supra).

In R.J.R. Macdonald Inc. v. Canada (Attorney General), (supra), Justice

Sopinka, at p. 337 indicates that the first step ( serious questions to be tried)

carries no specific requirement.


14/50

- 11 -

The threshold is a low one. The judge on the application must make apreliminary assessment of the case.

Petro-Canada v. Les ImmeublesRobo, 2002 NBQB 132 (CanLII), at

Reasons for Decision

36. The Rights of a mortgagee in New Brunswick exercising a power of sale under the

Property Act, balanced against a New Brunswick residential tenant in good standing, who is

sheltered from harm notwithstanding all other acts via the protection of the Residential

Tenancies Act, is yet to be considered settled law, in this Province.

37. There are serious questions which remain unresolved and have yet to be addressed,

requiring further interpretation by this Honorable Court regarding the priority of the Property

Act, supra, as opposed to the Residential Tenancy Act, supra, for the purpose of putting to rest

matters relevant to this case concerning termination of tenancy, furthermore, the aforementioned

matters currently at dispute in this matter have been resolved within the legal landscape of the

rest of Canada, yet remain unresolved in New Brunswick.

(2) They Must Prove They Will Suffer Irreparable Harm if the Injunction Is Not Granted

38. Due to the limitation period of this opportunity, the Applicant will suffer irreparable harm

if he is denied the interval in which to act.

39. In the case ofLeby Fixtures & Interiors Ltd. v. The Bank of Nova Scotia, 2006 NBCA 93

(CanLII), the Court of Appeal stated that it is the nature of the harm suffered not the magnitude

that makes the harm irreparable.

40. In Petro-Canada, supra, the Honourable Justice Raymond J. Guerette, stated:

Once satisfied that the application is neither vexatious nor frivolous, the

motions judge should proceed to consider the second and third tests, even ifof the opinion that the plaintiff is unlikely to succeed at trial. A prolonged

examination of the merits is generally neither necessary nor desirable.

Two exceptions apply to the general rule that a judge should not engage in

an extensive review of the merits. The first arises when the result of the

interlocutory motion will in effect amount to a final determination of the

action. This will be the case either when the right which the applicant seeks


15/50

- 12 -

to protect can only be exercised immediately or not at all, or when the resultof the application will impose such hardship on one party as to remove any

potential benefit from proceeding to trial. Indeed Lord Diplock modified the

American Cyanamid principle in such a situation in N.W.L. Ltd. v.

Woods, [1979] 1 W.L.R. 1294, at p. 1307:

Where, however, the grant or refusal of interlocutory injunction

will have the practical effect of putting an end to the actionbecause the harm that will have been already caused to the losing

party by its grant or its refusal is complete and of a kind for

which money cannot constitute any worthwhile recompense, thedegree of likelihood that the plaintiff would have succeeded in

establishing his right to an injunction if the action had gone to

trial is a factor to be brought into the balance by the judge inweighing the risks that injustice may result from his deciding theapplication one way rather than the other.

As to the second test (irreparableharm), Lord Diplock, in AmericanCyanamid, (supra) stated at p. 510:

As to that, the governing principle is that the court should firstconsider whether if the plaintiff were to succeed at trial in

establishing his right to a permanent injunction he would be

adequately compensated by an award of damages for the loss he

would have sustained as a result of the defendants continuing todo what was sought to be enjoined between the time of the

application and the time of the trial. If damages in the measure

recoverable at common law would be adequate remedy and thedefendant would be in a financial position to pay them, no

interlocutory injunction should normally be granted, however

strong the plaintiffs claim appeared to be at that stage.

In R.J.R. Macdonald Inc. v. Canada (A.G.), (supra), Justice Sopinka citesBeetz J. inMetropolitan Stores as follows (at p. 340):

Beetz J. determined in Metropolitan Stores, at p. 128, that thesecond test consists in deciding whether the litigant who seeks the

interlocutory injunction would, unless the injunction is granted,

suffer irreparable harm.

At this stage the only issue to be decided is whether a refusal to

grant relief could so adversely affect the applicantsown interests

that the harm could not be remedied if the eventual decision on

the merits does not accord with the result of the interlocutoryapplication.


16/50

- 13 -

Justice Sopinka then proceeds to outline various examples of what constitutes

irreparable harm at p. 342:

Irreparable refers to the nature of the harm suffered ratherthan its magnitude. It is harm which either cannot be quantified

in monetary terms or which cannot be cured, usually because oneparty cannot collect damages from the other. Examples of the

former include instances where one party will be put out ofbusiness by the courts decision (R.L. Crain Inc. v. Hendryreflex, (1988), 48 D.L.R. (4

th) 228 (Sask.Q.B.)); where one party

will suffer permanent market loss or irrevocable damage to itsbusiness reputation (American Cyanamid, supra); or where a

permanent loss of natural resources will be the result when a

challenged activity is not enjoined (MacMillan Bloedel Ltd. v.

Mullin, 1985 CanLII 154 (BC C.A.), [1985] 3 W.W.R. 577

(B.C.C.A.)).

Petro-Canada v. Les Immeubles Robo,supra, at Reasons for Decision

41. Irreparable refers to the nature of the harm suffered rather than its magnitude. It is harm

which cannot either be quantified in monetary terms or which cannot be cured, because there is

not any known compensation for such harm, one party cannot collect damages from the other.

42. The right which the Applicant seeks to protect can only be exercised immediately or not at

all.

(3)They Must Prove that the Balance of Convenience Favors the Granting of the Injunction

43. Applicant asserts that the balance of convenience favors the granting of the injunction, for

all parties concerned.

44. Please reference the following case regarding balance of convenience: Metz Farms 2 Ltd.

v. Committee against Hog Factories, 2001 NBCA 11 (CanLII), at para. 22.

[22] The third factor concerns the balance

of convenience. The public, including the appellant,

has the right to use public thoroughfares. The

respondents have no right to blockade or impede the


17/50

- 14 -

flow of traffic on highways for the purpose of

interfering with or protesting the appellants farming

operation. The interim injunction specifically

preserves the lawful protest and assembly rights of

the respondents. Correlatively, the issuance of an

interlocutory injunction will not cause the

respondents any harm. Therefore, the balance of

convenience clearly favours the appellant.

45. Regarding the balance of convenience, the public, including

the Applicant, a Residential Tenant, has the right to make use

of public legislation, namely the N.B. Residential Tenancy Act,

design to ensure and promote the rights of New Brunswick

Residential Tenants and Landlords. The Respondents, both for

profit corporations have no right to eviscerate Residential

Tenant Rights for the purpose of their own private for profit

interests. The issuing of a interim injunction would have

specifically preserved the status quo, or position of the

parties at the time of filing this Application. The issuing of

an injunction would restore the status quo, or position of the

parties back to the time of filing this Application.

Correlatively, the issuance of an interlocutory injunction will

not cause the Respondents any harm. (note: need more here)

Therefore, the balance of convenience clearly favours the

Applicant.

46. In NBIP Forest Products Inc. v. Comits de gestion de Kedgwick, the Honourable Justice

Margaret E. L. Larlee, quoted the following:

Balance of convenience considered. Where any doubt exists as to the plaintiff's

right, or if his right is not disputed, but its violation is denied, the court, indetermining whether an interlocutory injunction should be granted, takes into

consideration the balance of convenience to the parties and the nature of the

injury which the defendant, on the one hand, would suffer if the injunction was

granted and he should ultimately turn out to be right, and that which the

plaintiff, on the other hand, might sustain if the injunction was refused and he

should ultimately turn out to be right. The burden of proof that the

inconvenience which the plaintiff will suffer by the refusal of the injunction is


18/50

- 15 -

greater than that which the defendant will suffer, if it is granted, lies on the

plaintiff.

NBIP Forest Products Inc. v. Comits de gestion de Kedgwick, 1993CanLII

3298 (NB Q.B.), at p. 3

47. In Petro-Canada, supra, the Honourable Justice Raymond J. Guerette, stated:

The third test (Balance of Convenience) has already been set out (above) by

Beetz J. in Metropolitan Stores as involving a determination of which of the

two parties is likely to suffer the greater harm if the injunction is granted,

pending a decision on the merits. Numerous factors came into play in this

determination and they will vary in each case. Lord Diplock in American

Cyanamid v. Ethicon (supra), at p. 511.

It is where there is doubt as to the adequacy of the respective

remedies in damages available to either party or to both, that thequestion of balance of convenience arises. It would be unwise toattempt even to list all the various matters which may need to be

taken into consideration in deciding where the balance lies, let

alone to suggest the relative weight to be attached to them. Thesewill vary from case to case. Where other factors appear to be

evenly balanced it is a counsel of prudence to take such measures

as are calculated to preserve the status quo. [Emphasis added.]

Petro-Canada v. Les ImmeublesRobo,supra, at Reasons for Decision

48. The burden of proof, in this matter lies with the applicant, that the inconvenience which

applicant will suffer by refusal of the injunction is greater than that which the respondent could

possible suffer, if the injunction as requested by the applicant is granted. Consequently the

applicant will be barred by estoppel by judgment, for that reason irreparable harm to the

Applicant will result if the requested injunction is not granted, whereas the issuance of an

interlocutory injunction will not cause the Respondents any harm. Therefore, the balance of

convenience clearly favors the issuance of an interlocutory injunction.

49. The third test (Balance of Convenience) is set out as involving a determination of which of

the two parties are likely to suffer the greater harm if the injunction is granted. In this case if the

injunction is not granted, the Applicant will suffer irreparable harm, while no harm will befall

the Respondents. The right which the Applicant seeks to protect can only be exercised


19/50

- 16 -

immediately or not at all. The result of granting the interlocutory injunction will impose no

hardship or prejudice on the Respondents.

(4) Conclusion

50. The Applicant asserts there are serious issues at law to be tried, which must finally be

resolved as the lack of constitutionality of two challenged subject statutes, namely the

Residential Tenancies Act, supra and the Property Act, supra, which are appropriate and serious

issues for this Honorable Court to consider. The Charterrights of New Brunswick residential

tenants have been violated despite adequate legislation to prevent this occurrence. The subject

rights violations of residential tenants result from the current legislation not being worded

strongly enough to sufficiently protect them. Unless this matter is frivolous or vexatious on itsmerits, or the constitutionality of the statute is a pure question of law, a judge on a motion for

relief must, as a general rule, consider the second and third stages of theMetropolitan Stores test.

51. The Applicant, who is a long-term tenant and has continually paid monthly rent for seven

years to the Landlord, will suffer irreparable harm if this requested time-sensitive injunction in

which the Applicant may act expires. In light of the uncertain state of the law regarding the

award of damages for a Charterbreach, it will in most cases be impossible for a judge on an

interlocutory application to determine whether adequate compensation could ever be obtained at

trial. Therefore, until the law in this area has developed further, it is appropriate to assume that

the financial damage which will be suffered by an applicant following a refusal of relief, even

though nevertheless incapable of quantification, constitutes irreparable harm. Not only will the

Applicant suffer irreparable harm if the herewithin requested injunction is not granted, but if

subject Orders are acted upon, the effect would be irreparable prejudice to the integrity of the

judicial system of New Brunswick.

52. The Applicant asserts that the balance of convenience favors the granting of the injunction

and further believes it is critical in the interest of justice, as in this case, that the other side must

be heard, Audi alterampartem. For this purpose, the Applicant must be allowed to provide an

argument considering the Charterapplication in the relevant matter, the absence of which could


20/50

- 17 -

be fatal to the Applicants cause resulting in a miscarriage of justice. In addition to the damage

each party alleges it will suffer, the interest of the public must be taken into account. These

public interest considerations will carry less weight in exemption cases than in suspension cases.

When the nature and declared purpose of legislation is to promote the public interest, a motions

court should not be concerned whether the legislation actually has such an effect. It must be

assumed to do so. In order to overcome the assumed benefit to the public interest arising from

the continued application of the legislation, the Applicant, who relies on the public interest, must

demonstrate that the suspension of the legislation would itself provide a public benefit.

53. In considering the granting of an interlocutory injunction, therefore, suspending the

operation of an enacted but challenged and impugned law, it is presumed that the law will

produce a public good. This subject matter before the Court is a clear case justifying an

interlocutory injunction against the enforcement of a law on grounds of alleged

unconstitutionality.

54. There is no onus on an applicant for an interlocutory stay or impounding order to show that

granting the stay or impounding order protects the public interest. As a general rule, all an

applicant need show is that the public interest is not harmed by the order. The Applicant argues

not only his own private interest, but also that the public interest will be hurt by the refusal of a

stay.

55. A properly exercised interlocutory injunction will preserve and/or restore the status quo.

The granting of an interlocutory injunction will not give the Respondent his remedy, only

preserve the parties standing until the Charterissues are resolved. In this case, since the alleged

remedy the Respondents are seeking is so closely tied to the Charter infringements, the

interlocutory injunction would stay the remedy that the Respondents are seeking, which is

vacating the Applicant from his residential leasehold of the Property until the final disposition of

the Charterreview, otherwise the subject relief of vacating the Applicant would be premature

and a violation of the Applicants rights as provided for within the Charter.

56. A judicial stay of proceedings has been recognized as being an extraordinary remedy that

should only be granted in the "clearest of cases" and the Applicant asserts that a stay is


21/50

- 18 -

appropriate in circumstances where prejudice to his right to make full answer and defence cannot

be remedied, such as in this case, or where irreparable prejudice to the integrity of the judicial

system would result if the action were continued. These two factors are alternatives and the

presence of either justifies the exercise of discretion in favour of a stay.

57. The October 20, 2009, Order to Vacate the Defendant, further, the October 28, 2011, Order

declaring a termination of the Defendants Tenancy together with an Order to Vacate, and a

second October 28, 2011, Order declaring the priority of the mortgage together with an Order to

Vacate shall not be enforced by the Royal Bank or 501376 N.B. Ltd., and alternatively may be

stayed because the aforementioned subject Orders were issued based on non-Chartercompliant,

impugned legislation. Therefore the subject Orders are consequentially lacking jurisdiction and

reasonably a legal liability to enforce, as a further matter if acted upon, they would causeirreparable prejudice to the integrity of the New Brunswick judicial system.

(B) Section 7 CharterAnalysis

58. Section 7 of the Charterprovides Everyone has the right to life, liberty and security of the

person and the right not to be deprived thereof except in accordance with the principles of

fundamental justice.

59. The traditional approach to the analysis proceeds in two steps as described by La Forest J.

inR. v. Beare;R. v. Higgins, which is as follows:

To trigger its operation there must first be a finding that there has been a

deprivation of the right to "life, liberty and security of the person" and,

secondly, that that deprivation is contrary to the principles of fundamental

justice.

R. v. Beare;R. v. Higgins, [1988] 2 S.C.R. 387 (CanLII) at para.28

60. In Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 (CanLII),at

para. 12 McLachlin C.J. added the qualification that the issue in relation to the first step is

whether there has been or could be a deprivation of the right to life, liberty and security of the

person.


22/50

- 19 -

61. The traditional approach embodies a conception that section 7 of the Charter contains

negative rights of non-interference and is invoked by a specific government action. There is also

a school of thought, as exemplified in the dissent of ArbourJ. in Gosselin v. Quebec (Attorney

General), 2002 SCC 84 (CanLII), that properly construed section 7, including a positive

dimension that may in certain circumstances impose positive obligations upon government.

62. Pursuant to this traditional analysis, a claimant must therefore first establish that there has

been, or could be, a deprivation of life, liberty or security of the person.

(1)Does this Claim Follow Within the Scope of Section 7?

(i)Is There Sufficient State Action?

63. It is now clear that the scope of section 7 of the Charteris not limited to purely criminal

or penal matters, as in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44

(CanLII), at paras. 45 and 46:

45 there is no longer any doubt that s. 7 of the Charteris not confined to the penalcontext. This was most recently affirmed by this Court in New Brunswick (Minister ofHealth and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46,

where Lamer C.J. stated that the protection of security of the person extends beyond thecriminal law (at para. 58). He later added (at para. 65):

. . . s. 7is not limited solely to purely criminal or penal matters. There are other

ways in which the government, in the course of the administration of justice, can

deprive a person of their s. 7rights to liberty and security of the person

46 Section 7 can extend beyond the sphere of criminal law, at least

where there is state action which directly engages the justice system and its

administration

64.

In Gosselin, McLachlin C.J. discussed the scope of section 7 as follows at:77 the dominant strand of jurisprudence on s. 7 sees its purpose as guardingagainst certain kinds of deprivation of life, liberty and security of the person, namely,those that occur as a result of an individuals interaction with the justice system and itsadministration: [T]he justice system and its administration refers to the statesconduct in the course of enforcing and securing compliance with the law ... This viewlimits the potential scope of life, liberty and security of the person by asking whom orwhat s. 7 protects against. Under this narrow interpretation, s. 7 does not protect against


23/50

- 20 -

all measures that might in some way impinge on life, liberty or security, but only againstthose that can be attributed to state action implicating the administration of justice:

Gosselin v. Quebec (Attorney General), 2002 SCC 84 (CanLII) para. 77

(ii)Is the State Action the Cause of the Deprivation?

65. In summary, the Applicant believes that the provisions at issue have caused a deprivation,

such that section 7 of the Charteris engaged. See Hill v. Church of Scientology of Toronto,

[1995] 2 S.C.R. 1130 (CanLII), atpara. 92, it is appropriate for the courts to make such

incremental revisions to the common law as may be necessary to have it comply with the values

enunciated in the Charter.

66. Each level of democratic government is entitled to deference in the policy choices it

makes, especially when dealing with significant and complex issues. It is, however, the

responsibility of government, in making these decisions, to act in conformity with the

constitution. As McLachlinC.J. stated, in Charkaoui, supra, atpara. 1, Yet in a constitutional

democracy, governments must act accountably and in conformity with the Constitution and the

rights and liberties it guarantees.

67. This case is about the constitutionality of portions of New Brunswicks provincial statutes.

The determination of this issue falls squarely within the role and responsibility of the courts.

WithinR. v. Morgentaler, Wilson, L.explained the position of the individual within society as

follows:

interpretation should be, , a generous rather than a legalistic one, aimed at fulfilling

the purpose of the guarantee and securing for individuals the full benefit of the

Charter's protection.

We are invited, therefore, to consider the purpose of the Charterin general and ofthe right to liberty in particular.

The Charteris predicated on a particular conception of the place of the individual in

society. An individual is not a totally independent entity disconnected from the society

in which he or she lives. Neither, however, is the individual a mere cog in an impersonal

machine in which his or her values, goals and aspirations are subordinated to those of


24/50

- 21 -

the collectivity. The individual is a bit of both. The Charterreflects this reality by leaving

a wide range of activities and decisions open to legitimate government control while at

the same time placing limits on the proper scope of that control. Thus, the rights

guaranteed in the Chartererect around each individual, metaphorically speaking, an

invisible fence over which the state will not be allowed to trespass. The role of the

courts is to map out, piece by piece, the parameters of the fence.

The Charterand the right to individual liberty guaranteed under it are inextricably

tied to the concept of human dignity.

If a person were deliberately denied the opportunity of self-respect and that

contentment, he would suffer deprivation of his essential humanity.

Canadian society is to be free and democratic. The Court must be guided by the

values and principles essential to a free and democratic society which I believe embody,

to name but a few, respect for the inherent dignity of the human person, commitment

to social justice and equality

The idea of human dignity finds expression in almost every right and freedom

guaranteed in the Charter.

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30,at page 164, 165 and 166

68. In any event, choices of the legislature that involve complex issues of policy are not

immune from review. In Vriend v. Alberta, [1998] 1 S.C.R. 493 (CanLII), Iacobucci J. explained

the relationship between the legislature and the court that has been created by the passage of theCharter, at paras. 134, 135, 138 and 142.

69. The Charter is predicated on a particular conception of the place of the individual in

society. The Charterreflects this reality by leaving a wide range of activities and decisions open

to legitimate government control, while at the same time placing limits on the proper scope of

that control. Therefore the rights guaranteed in the Charter erect around each individual an

invisible fence, metaphorically speaking, over which the state will not be allowed to trespass. In

the matter presently before the Court, the Applicant asserts that the Respondents, through the

impugned legislation, have trespassed on the Applicants Charterprotected rights. Simply put,

the fact that the matter engages complex policy decisions does not immunize the legislation from

review by the courts pursuant to the Charter.


25/50

- 22 -

(2)Is there a Deprivation of One of the Protected Rights?

70. In Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, at

p. 204, Justice Wilson emphasized that there are three distinct elements to the s. 7 right, that "life,

liberty, and security of the person" are independent interests, each of which must be given independent

significance by the Court . It is therefore possible to treat only one aspect of the first part of s. 7 before

determining whether any infringement of that interest accords with the principles of fundamental

justice. Please further reference the following also from Singh:

41. It seems to me that in attempting to decide whether the appellants have been deprived

of the right to life, liberty and security of the person within the meaning of s. 7 of the Charter, we

must begin by determining what rights the appellants have

42. We must therefore ask ourselves whether the deprivation of these rights constitutes a

deprivation of the right to life, liberty and security of the person within the meaning of s. 7 of the

Charter. I think we must recognize that the "right" which is articulated in s. 7 has three elements:

life, liberty and security of the person. As I understand the "single right" theory, it is not suggested

that there must be a deprivation of all three of these elements before an individual is deprived of

his "right" under s. 7. In other words, I believe that it is consistent with the "single right" theory

advanced by counsel to suggest that a deprivation of the appellants' "security of the person", for

example, would constitute a deprivation of their "right" under s. 7, whether or not it can also be

said that they have been deprived of their lives or liberty. Rather, as I understand it, the "single

right" theory is advanced in support of a narrow construction of the words "life", "liberty" and

"security of the person" as different aspects of a single concept rather than as separate concepts

each of which must be construed independently.

43. Certainly, it is true that the concepts of the right to life, the right to liberty, and the right

to security of the person are capable of a broad range of meaning.

Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177

paragraph 41, 42 and 43

(i)Liberty

71. The concept of liberty within the scope of section 7 of the Charter was defined by

WilsonJ., in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30,at pp. 164 to 166.

72. An aspect of the respect for human dignity, upon which the Charteris founded, is the right

to make fundamental personal decisions without interference from the state. This right is a


26/50

- 23 -

critical component of the right to liberty. Liberty, as was noted is a phrase capable of a broad

range of meaning, including housing in Singh v. Minister of Employment and Immigration:

Like "liberty", the phrase "security of the person" is capable of a broad range of meaning.The right to security of the person means not only protection of one's physical integrity,

but the provision of necessaries for its support... the Commission went on to describe theprovision of necessaries Everyone has the right to a standard of living adequate for the

health and wellbeing of himself and of his family, including food, clothing, housing

Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1

S.C.R. 177, paragrapgh 46:

73. In my view this right grants the individual a degree of autonomy in making decisions of

fundamental personal importance. For the Applicant to be able to decide what to do and how to

do it, to carry out one's own decisions and accept their consequences, seems essential to one's

self-respect as a human being, and essential to the possibility of that contentment, which are

fundamental goods for human beings and the worth of life itself, being on condition of having

or striving for them. The Applicant believes he is being deliberately denied the opportunity of

self-respect and associated contentment; therefore as a consequence, the Applicant is suffering

deprivation of his essential humanity. The states lack of protection and security of tenure to

residential tenants, in favour of a mortgagees interest, is a deprivation of liberty within the scope

of section 7.

(ii)Security of the Person

74. Security of the person has been held to include the protection of physical and

psychological integrity. In Rodriguez v. British Columbia (Attorney General), SopinkaJ. held

that:

In my view, then, the judgments of this Court in Morgentaler can be seen to

encompass a notion of personal autonomy involving, at the very least, control

over one's bodily integrity free from state interference and freedom from state-

imposed psychological and emotional stress. In Reference re ss. 193 and195.1(1)(c) of theCriminal Code (Man.), supra, Justice Lamer (as he then was)

also expressed this view, stating at p. 1177 that "[s]ection 7 is also implicated

when the state restricts individuals' security of the person by interfering with,

or removing from them, control over their physical or mental integrity". There

is no question, then, that personal autonomy, at least with respect to the right

to make choices concerning one's own body, control over one's physical and

psychological integrity, and basic human dignity are encompassed within


27/50

- 24 -

security of the person, at least to the extent of freedom from criminal

prohibitions which interfere with these.

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519

(CanLII), at pp. 587 and 588

(C) Is the Deprivation in Accordance with the Principles of Fundamental Justice?

(1)Overview

75. The next step in the analysis is to determine if the interference with the life, liberty or

security of the person is contrary to the principles of fundamental justice.

76. The Supreme Court of Canada in R. v. Malmo-Levine; R. v. Caine, the Court explained

how a rule or principle would constitute a principle of fundamental justice for the purposes of

s. 7 as follows:

The requirement of general acceptance among reasonable people enhances thelegitimacy of judicial review of state action, and ensures that the values against whichstate action is measured are not just fundamental in the eye of the beholder only:Rodriguez, at pp. 607 and 590 (emphasis in original). In short, for a rule or principle toconstitute a principle of fundamental justice for the purposes of s. 7, it must be a legalprinciple about which there is significant societal consensus that it is fundamental to theway in which the legal system ought fairly to operate, and it must be identified with

sufficient precision to yield a manageable standard against which to measure deprivationsof life, liberty or security of the person.

219 The s. 7 analysis requires the appellants to demonstrate a deprivation ofliberty that is not in accordance with the principles of fundamental justice. Indeed, asperIacobucci J. inR. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 38, thes. 7 analysis involves three stages:

The first question to be resolved is whether there exists a real or imminentdeprivation of life, liberty, security of the person, or a combination of theseinterests. The second stage involves identifying and defining the relevant principle

or principles of fundamental justice. Finally, it must be determined whether thedeprivation has occurred in accordance with the relevant principle . . . .

R. v. Malmo-Levine;R. v. Caine, 2003 SCC 74 (CanLII) at para.113 and 219.


28/50

- 25 -

77. In Canadian Foundation for Children, Youth and the Law v. Canada the Court has

established three criteria that must be satisfied in order for a rule or principle to qualify as a

principle of fundamental justice:

8 Jurisprudence on s. 7 has established that a principle of fundamentaljustice must fulfill three criteria: First, it must be a legal principle. This serves twopurposes. First, it provides meaningful content for the s. 7 guarantee; second, it avoidsthe adjudication of policy matters: Second, there must be sufficient consensus thatthe alleged principle is vital or fundamental to our societal notion of justice: Theprinciples of fundamental justice are the shared assumptions upon which our system ofjustice is grounded. They find their meaning in the cases and traditions that have longdetailed the basic norms for how the state deals with its citizens. Society views them asessential to the administration of justice. Third, the alleged principle must be capable ofbeing identified with precision and applied to situations in a manner that yieldspredictable results. Examples of principles of fundamental justice that meet all three

requirements include the need for a guilty mind and for reasonably clear laws.

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General),

2004 SCC 4 (CanLII), paragraph 878. The above cases have established three criteria that must be satisfied in order for a rule or

principle to qualify as a principle of fundamental justice:

a) The rule must be a legal principle;

b) There must be a significant societal consensus that it is fundamental to the way inwhich the legal system ought fairly to operate; and

c) The rule must be capable of being identified with sufficient precision to yield amanageable standard.

79. In Cunningham v. Canada, McLachlinJ., as she then was, noted that a consideration of the

principles of fundamental justice requires consideration of the fairness of the balance struck

between the interests of the individual and the protection of society, stating:

The principles of fundamental justice are concerned not only with the interestof the person who claims his liberty has been limited, but with the protection of

society. Fundamental justice requires that a fair balance be struck between

these interests, both substantively and procedurally....

Cunningham v. Canada, [1993] 2 S.C.R. 143 (CanLII) at pp. 151 and 152


29/50

- 26 -

80. The Court returned to the theme of balancing in relation to the principles of fundamental

justice in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3

(CanLII)atparas. 45 and 47.

81. While recognising the balancing of both individual and societal interests that forms the

analysis of the principles of fundamental justice, the Supreme Court of Canada has noted that it

is important that the consideration of those principles under section 7 of the Charter not be

conflated with the section 1 analysis, Reference: McLachlin C.J. in Charkaoui, supra, at paras.

21 and 22.

82. Further reference: R. v. Malmo-Levine; R. v. Caine, supra, GonthierJ. and Binnie J., the

Court explains, it is not for the state to thwart the exercise of the accuseds right by attempting to

bring societal interests into the principles of fundamental justice and to thereby limit an

accuseds s. 7 rights. :

Once the principle of fundamental justice has been elucidated, however, it is not withinthe ambit of s. 7 to bring into account such societal interests as health care costs.Those considerations will be looked at, if at all, under s. 1. R. v. Swain, 1991 CanLII104 (SCC),...:

It is not appropriate for the state to thwart the exercise of the accuseds right byattempting to bring societal interests into the principles of fundamental justice and to

thereby limit an accuseds s. 7 rights. Societal interests are to be dealt with under s. 1 of

the Charter, where the Crown has the burden of proving that the impugned law is

demonstrably justified in a free and democratic society.

R. v. Malmo-Levine; R. v. Caine,supra, Gonthier J. and Binnie J., at paragraph 98

83. In the context of interpreting section 7 of the Charter, it has been held that international

human rights instruments can inform a courts understanding of the principles of fundamental

justice. Reference:Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (CanLII), at para. 79.

84. This position was affirmed in Suresh, supra, atparagraph 46.


30/50

- 27 -

85. The principles of fundamental justice are concerned not only with the interests of the

person who claims his liberty has been limited, but with the protection of society. Fundamental

justice requires that a fair balance be struck between these interests, both substantively and

procedurally. The principles of fundamental justice are to be found in the basic tenets of our

legal system, as they do not lie in the realm of general public policy, but in the inherent domain

of the judiciary as guardian of the justice system. Unlike section 1, section 7 is not concerned

with whether a limit on life, liberty or security of the person is justified, but with whether the

limit has been imposed in a way that respects the principles of fundamental justice. In the matter

before the Court, balancing the interests of the state and the individual is required.

(1)Application in Non-Criminal Legislation

86. The reasons of Justices La Forest, LHeureux-Dub and McLachlin, as she then was, in

Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 (CanLII), provides very useful guidance with

respect to the approach to be taken to the issue of the principles of fundamental justice in

considering legislation that does not engage the criminal law.

87. With respect to section 7 of the Charter, La Forest J. rejected the argument that the nature

of the claim was in relation to economic rights beyond the scope of the Charter. La Forest J.

concluded that the right to choose where to establish ones home falls within the scope of theliberty interest protected by section 7, as part of the irreducible sphere of personal autonomy

where individuals may make inherently private choices free from state interference. In reaching

this conclusion, La Forest J. had regard to the fact that the right to choose where to establish

one's home is afforded explicit protection in the International Covenant on Civil and Political

Rights, Can. T.S. 1976 No. 47, accession by Canada on May 19, 1976.

88. With respect to the principles of fundamental justice, La Forest J. concluded it was

necessary to weigh the right at issue against the interests pursued by the state in causing the

infringement.

89. The right to choose where to call home falls within the scope of the liberty interest

protected by section 7 of the Charteras part of the irreducible sphere of personal autonomy,


31/50

- 28 -

where individuals may make inherently private choices free from state interference. This right is

afforded explicit protection in the International Covenant on Civil and Political Rights, supra,

Part 1, Article 1, as follows:

1. All peoples have theright of self-determination. By virtue of that right they

freely determine their political status and freely pursue their economic, socialand cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth

and resources without prejudice to any obligations arising out of international

economic co-operation, based upon the principle of mutual benefit, and

international law. In no case may a people be deprived of its own means of

subsistence.

3. The States Parties to the present Covenant, including those having

responsibility for the administration of Non-Self-Governing and Trust

Territories, shall promote the realization of the right of self-determination,and shall respect that right, in conformity with the provisions of the Charter of

the United Nations.

International Covenant on Civil and Political Rights,supra, at Part I,Article 1

90. The economic benefits to a mortgagee, is not a sufficient interest to override the

constitutional guarantee of freedom of choice, further this alleged benefit does not survive

constitutional scrutiny. The right to choose where to call home falls within the scope of the

liberty interest protected by section 7 of the Charteras part of the irreducible sphere of personal

autonomy. The result is that the infringement created by the subject impugned statutes does not

conform to the principles of fundamental justice.

(3) Overbreadth

91. One principle of fundamental justice that has been identified by the Supreme Court of

Canada is that restrictions on life, liberty and security of the person, must not be more broadly

framed than necessary to achieve a legislative purpose, as discussed in Godbout, supra above. In

R. v. Heywood, Justice Cory, for the majority, described the principle of overbreadth as follows:

Overbreadth analysis looks at the means chosen by the state in relation to its

purpose. In considering whether a legislative provision is overbroad, a court

must ask the question: are those means necessary to achieve the State


32/50

- 29 -

objective? If the State, in pursuing a legitimate objective, uses means which are

broader than is necessary to accomplish that objective, the principles of

fundamental justice will be violated because the individual's rights will have

been limited for no reason. The effect of overbreadth is that in some

applications the law is arbitrary or disproportionate.

R. v. Heywood, [1994] 3 S.C.R. 761 (CanLII) at pp. 792 and 793

(4)Arbitrary Provisions

92. Another principle of fundamental justice is that a law must not operate to limit the rights

protected by section 7 of the Charterin an arbitrary manner. In Chaoulli v. Quebec, McLachlin,

MajorJ. stated:

129 It is a well-recognized principle of fundamental justice that laws should notbe arbitrary: see, e.g.,Malmo-Levine, at para. 135;Rodriguez, at p. 594. The state is notentitled to arbitrarily limit its citizens rights to life, liberty and security of the person.

130 A law is arbitrary where it bears no relation to, or is inconsistent with, theobjective that lies behind [it]. To determine whether this is the case, it is necessary toconsider the state interest and societal concerns that the provision is meant to reflect:Rodriguez, at pp. 594-95.

131 In order not to be arbitrary, the limit on life, liberty and security requires notonly a theoretical connection between the limit and the legislative goal, but a real

connection on the facts. The onus of showing lack of connection in this sense rests withthe claimant. The question in every case is whether the measure is arbitrary in the senseof bearing no real relation to the goal and hence being manifestly unfair. The moreserious the impingement on the persons liberty and security, the clearer must be theconnection. Where the individuals very life may be at stake, the reasonable personwould expect a clear connection, in theory and in fact, between the measures that puts lifeat risk and the legislative goals.

Chaoulli v. Quebec (Attorney General), 2005 SCC 35 (CanLII), [2005] 1 SCR 791,at

paragraph 129 to 131

93. InRodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519,supra, at pp.594 and 595 Sopinka J. stated:

Where the deprivation of the right in question does little or nothing to enhance

the state's interest (whatever it may be), it seems to me that a breach of

fundamental justice will be made out, as the individual's rights will have been

deprived for no valid purpose.


33/50

- 30 -

94. Please Note: in this Charter Application the deprivation of the right in question,

which is security of residential tenure, does nothing to enhance the state's interest, the

deprivation of the right only furthers the private financial interests of Respondents

Mortgagee Royal Bank and a tentative Mortgagee Deed purchaser 501376, N.B. Ltd.

Considering Rodriguez v. British Columbia, supra, a breach of fundamental justice is

prima facia and in fact made out, as the individual's rights will have been deprived

for no valid purpose.

(5)Analysis

95. Please see paragraphs 57 through 72 of the Applicants Form 16D Application dated May

31, 2012.

(D) Section 15(1)

96. Pursuant to subsection 15(1) of the Charter, it is blatant discrimination that the

Applicant as a residential tenant could have Charterprotected rights stripped in favour of the

financial interests of a mortgagee. Therefore to allow this element of discrimination to stand is to

confirm a different standard for the Applicant in this matter, who has Charterrights violated by

inadequate protection of the Residential Tenancies Act, supra, compared to other residential

tenants who are not pressured and pursued by a mortgagee, which therefore effectively demeans

the Applicant's human dignity. In Law v. Canada (Minister of Employment and Immigration),

[1999] 1 S.C.R. 497(CanLII) at paras. 21 to 88, also in R. v. Dyment, [1988] 2 S.C.R. 417

(CanLII), La Forest J. states at paras. 15 to 23, From the earliest stage of Charter

interpretation, this Court has made it clear The function of the Charter is to provide ... for

the unremitting protection of individual rights and liberties.

97. Pursuant to subsection 15(1) of the Charter, it is blatant discrimination that a residential

tenant could have their Charterrights violated by the inadequate protection of the Residential

Tenancies Act, supra.


34/50

- 31 -

98. Therefore to allow this element of discrimination to stand is to confirm a different standard

for the Applicant in this matter, compared to every other residential tenant who is otherwise

protected by the Residential Tenancies Act, supra, it is inescapable therefore, that the effect is

demeaning to the Applicant's human dignity, contrary to the Charterprotection of individual

rights and liberties.

99. In combating discrimination, subsection 15(1) of the Charter prevents discriminatory

distinctions that impact adversely on members of groups identified by subsection 15(1).

100. A court that is called upon to determine a discrimination claim under subsection 15(1)

should make the following three broad inquiries:

Test1 - Has there been differential treatment? The answer in this case is yes.

Test 2 - Is the differential treatment based on an enumerated or analogous ground? Theanswer in this case is again, yes. Analogous grounds are comparable in certain respects,typically in a way that makes clearer the nature of the things compared.

Test 3 - Is there discrimination? Again, the answer is yes in this matter. Discrimination istreatment or consideration in favor of, or against, a person based on the group, class, orcategory to which that person or thing belongs rather than on individual merit. Does thedifferential treatment discriminate by imposing a burden upon, or withholding a benefit

from the claimant in a manner which reflects the stereotypical application of presumedgroup or personal characteristics, or which otherwise has the effect of perpetuating orpromoting the view that the individual is less capable or worthy of recognition or value asa human being or as a member of Canadian society, equally deserving of concern,respect, and consideration? Yes, the discrimination does marginalize, ignore, and devaluea residential tenants sense ofself-respectand self-worth.

101. The Applicant has experienced unfair treatment based on the actions of the Royal Bank

and 501376 NB Ltd., by dragging the Applicant through the Courts of New Brunswick.

Reference: R. v. Dyment, supra, La Forest J. stated regarding the right to privacy and its

relationship to human dignity from paragraphs 15 to paragraph 23 From the earliest stage of

Charter interpretation, this Court has made it clear that the rights it guarantees must be

interpreted generously, and not in a narrow or legalistic fashion; The function of the Charter,

is to provide ... for the unremitting protection of individual rights and liberties ."


35/50

- 32 -

102. In general terms, the purpose of subsection 15(1) is to prevent the violation of essential

human dignity and freedom through the imposition of disadvantage, stereotyping, or political or

social prejudice, and to promote a society in which all persons enjoy equal recognition at law as

human beings or as members of Canadian society, equally capable and equally deserving of

concern, respect and consideration. The existence of a conflict between the purpose or effect of

an impugned bylaw and the purpose of subsection 15(1) of the Charter is essential in order to

found a discrimination claim.

103. I have not received equal treatment before and under the law, as guaranteed

under subsection 15(1), but also that the law has a differential impact on me in the protection or

benefit accorded by it; in addition, the legislative impact of the rights supposed to be guaranteed

by theResidential Tenancies Act, supra, is discriminatory.

104. Please see paragraphs 73 to 100 of the Applicants Charter Application FORM 16 D; dated

May 31, 2012.

(E) Section 1

105. Any justification, any consideration of the reasonableness of the enactment; indeed, any

consideration of factors which could justify the discrimination and support the constitutionality

of the impugned enactment would take place under section 1 of the Charter.

(1) Overview

106. The next issue to be addressed is whether the Province of New Brunswick, can establish

that the impugned legislation is justified pursuant to section 1 of the Charter, which provides:

The Canadian Charter of Rights and Freedoms guarantees the rights andfreedoms set out in it subject only to such reasonable limits prescribed by law

as can be demonstrably justified in a free and democratic society.

The Constitution Act, supra, s.1107. In Canada (Attorney General) v. JTI-Macdonald Corp., McLachlin C.J. set out the test for

whether a provision is justified pursuant to section 1 of the Charteras follows:


36/50

- 33 -

This engages what in law is known as the proportionality analysis. Most

modern constitutions recognize that rights are not absolute and can be limited

if this is necessary to achieve an important objective and if the limit is

appropriately tailored, or proportionate. ... This Court in Oakes set out a test

of proportionality that mirrors the elements of this idea of proportionality -

first, the law must serve an important purpose, and second, the means it uses toattain this purpose must be proportionate. Proportionality in turn involves

rational connection between the means and the objective, minimal impairment

and proportionality of effects. As the Honourable Chief Justice Dickson stated

in Oakes, at p. 139:

There are, in my view, three important components of a

proportionality test. First, the measures adopted must be carefully

designed to achieve the objective in question. They must not be

arbitrary, unfair or based on irrational considerations. In short,

they must be rationally connected to the objective. Second, the

means, even if rationally connected to the objective in this firstsense, should impair "as little as possible" the right or freedom in

question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there

must be a proportionality between the effects of the measures which

are responsible for limiting the Charter right or freedom, and the

objective which has been identified as of "sufficient importance".

[Emphasis deleted.]

Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R.610 (CanLII), at para. 36

108. It has been held that infringements of the rights under section 7 of the Charter, which have

been found to be contrary to the principles of fundamental justice, will only be justified in rare

circumstances. For example, inReB.C.MotorVehicleAct, LamerJ. stated:

Section 1 may, for reasons of administrative expediency, successfully come to

the rescue of an otherwise violation of section 7, but only in cases arising out

of exceptional conditions, such as natural disasters, the outbreak of war,

epidemics, and the like.

ReB.C.MotorVehicleAct, supra, at p. 518

109. In Charkaoui, supra, McLachlin C.J. quoted this statement of LamerJ. and stated further:

The rights protected by s. 7 life, liberty, and security of the person are

basic to our conception of a free and democratic society, and hence are not

easily overridden by competing social interests. It follows that violations of the

principles of fundamental justice, specifically the right to a fair hearing, are


37/50

- 34 -

difficult to justify under s. 1: G. (J.). Nevertheless, the task may not be

impossible, particularly in extraordinary circumstances where concerns are

grave and the challenges complex.

Charkaoui v. Canada (Citizenship and Immigration),supra, at para. 66

110. The rights protected by section 7 life, liberty, and security of the person, are basic to our

conception of a free and democratic society, and hence are not easily overridden by competing

social interests. It follows that violations of the principles of fundamental justice are difficult to

justify under section 1, especially when the competing social interests appear to be nothing more

than a financial gain for a mortgagee, deriving a monetary gain from a financial investment

instrument, making a profit based on the risk of loss, consequentially taking advantage of

someone, who would otherwise be protected by the Charterfrom such an arbitrary infringementof their rights.

(2)Important Objecti

December 14, 2012, Applicant's Brief to be used for Charter Challenge Application. FM/27/12 Charter Challenge - Charter Application – Andre Murray v. ROYAL BANK OF CANADA, 501376

Documents