Supreme Court
Decision Information
Decision information:
Abstract: Transcript of Decision on Chambers Application
Decision Content
Yellowknife Housing Authority v. Bisson and Bisson
2009 NWTSC 33
S-1-CV-2009000041
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
YELLOWKNIFE HOUSING AUTHORITY
Applicant/Landlord
- and -
ROGER BISSON and LISA BISSON
Respondent/Tenant
_____________________________________________________
Transcript of Decision on Chambers Application
delivered by the Honourable Justice L.A. Charbonneau,
sitting at Yellowknife, in the Northwest Territories,
on May 1st, A.D. 2009. (Digitally Recorded and
Stenographically Transcribed)
_____________________________________________________
APPEARANCES:
Mr. S. Mansell: Counsel for the Applicant/Landlord
Mr. D.P. Large, Q.C.: Counsel for the Respondent/Tenant
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1 THE COURT: The notice of motion that is
2 before me was filed by the Applicants and it
3 seeks a rehearing, as well as a stay of execution
4 on an eviction order that was issued by this
5 Court on April 3rd, 2009. That order declared
6 that the tenancy agreement between the Applicants
7 and their landlord was terminated as of February
8 28th and ordered their eviction on or after April
9 17th.
10 So this notice of motion was filed April
11 20th. It is supported by an affidavit sworn by
12 one of the Applicants, who deposes that he only
13 became aware of the eviction issue on April 17th
14 when he was served with the eviction order. His
15 affidavit includes statements that he has made
16 recent payments towards the arrears. He attaches
17 receipts to substantiate this. He deposes about
18 difficult personal circumstances that he and his
19 wife face, about his concerns about having to
20 move out of the rental premises, and,
21 importantly, for the purposes of this
22 application, he deposes that he never got notice
23 of the April 3rd court date, which was the date
24 of the hearing that led to the eviction order
25 being made.
26 The motion was before the Court last week,
27 on April 24th, and the presiding Judge at that
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1 point expressed some concern about whether this
2 Court had jurisdiction to entertain the relief
3 that was sought, suggested that the jurisdiction
4 would exist in the event that the matter was
5 appealed, but that there may not be any
6 jurisdiction for a Judge of this Court to reopen
7 a matter already decided by this Court or to stay
8 an order made by another Judge of this Court. So
9 we are here today because counsel asked, and were
10 granted, an opportunity to research the point
11 further.
12 As I said at the outset, I have reviewed the
13 cases that were filed by the Applicants, and
14 Mr. Large has referred to them in his
15 submissions. The first two are dated cases, but
16 they do deal with the Court's ability to control
17 its own process and to take certain steps to
18 rectify mistakes or grave errors that might have
19 been made in the making of a decision. I do not
20 find these cases apply to the circumstances here,
21 because I do not find that the case has been made
22 out that the order that was made on April 3rd was
23 the result of an abuse of the Court's process or
24 of any such types of irregularities that are
25 alluded to in those two decisions.
26 The incontrovertible fact is that the
27 Residential Tenancies Act does provide that
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1 service by registered mail - and in some
2 instances even service by regular mail - is an
3 acceptable mode of service under the Act. That
4 section reads at the first paragraph that:
5 ... any notice, process or document
6 to be served by or on a landlord, a
7 tenant or the rental officer may be
8 served by personal delivery or by
9 registered mail to the landlord at
10 the address given in the tenancy
11 agreement or mailed to the tenant at
12 the address of the rental premises
13 and to the rental officer at the
14 address of the rental officer.
15 So the Legislature has chosen to make this
16 an acceptable mode of service under the Act. The
17 Applicants argue that because the normal rule
18 under the Rules of Court is that Originating
19 Notices must be served personally and because
20 court pleadings are a significant document, they
21 ought to have been included specifically in
22 section 71 if they were to be part of those
23 things that could be served by registered mail or
24 by mail.
25 I considered this submission, but I find
26 that in the context of the Act the section is
27 worded in a very broad way and seems to be
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1 intended to allow all the processes under the Act
2 to be served in this fashion. Looking at the
3 French version, actually, of that section, the
4 words that are used are very broad. It talks
5 about "actes de procédure", and "actes de
6 procédure" is the French term for pleadings.
7 So if I look at both versions, I see that
8 the language is very broad, and in the context I
9 am unable to agree with the Applicants that an
10 Originating Notice is excluded from this mode of
11 service. Then, as Mr. Large fairly conceded,
12 that being the case, the Act does have precedence
13 over the Rules, and so it was proper service -
14 even if it was service of an Originating Notice -
15 to proceed the way that was used in this case.
16 When the matter was before the Court on
17 April 3rd there was affidavit material setting
18 out how service had been effected, and reliance
19 was placed on paragraph 2 of section 71, which I
20 have already read during submissions, and is the
21 deeming provision that says that when something
22 is sent by registered mail, it is deemed to have
23 been served on the 7th day after the date of the
24 mailing.
25 So there was all this evidence before the
26 Court. Of course, the Applicants have also filed
27 a case of this Court that says that these
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1 proceedings should not be taken ex parte, and I
2 certainly agree with that decision, but a
3 proceeding that has been served by way of a
4 legitimate means of service provided for in an
5 Act cannot be characterized as ex parte. Of
6 course, the affidavit of the Applicant is to the
7 effect - and it is not contradicted - that he
8 never did receive the notice that was mailed to
9 him by registered mail, and that seems to be
10 confirmed by the fact that counsel for the
11 Respondent has indicated that the materials were
12 eventually returned to his client after the
13 hearing date.
14 So the claim that is being made here about
15 lack of knowledge is very analogous to the one
16 that was made in the case of Hegeman v. Carter,
17 which has been filed and referred to in
18 submissions. That was a case where a hearing had
19 proceeded in front of a Rental Officer on the
20 basis that the landlord had been served by
21 registered mail. The landlord did not appear at
22 the hearing. The hearing proceeded and a
23 decision was made by the Rental Officer that
24 required the landlord to return the security
25 deposit to the tenants. The landlord later
26 appealed that decision and claimed and produced
27 evidence that she had never, in fact, received
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1 notice of the hearing, and, much like the
2 Applicants in this case, she sought a rehearing
3 so that she could present the arguments that she
4 would have presented had she had notice of the
5 hearing.
6 The Court ruled in that case that the
7 presumption in section 71(2) is rebuttable and
8 that a person can come forward and say, "Even
9 though this is an acceptable method of service,
10 in my case I did not know. I did not get these
11 documents."
12 Also, in Hegeman v. Carter the Court
13 ultimately allowed Mrs. Hegeman's appeal and
14 granted her a rehearing so that she would be able
15 to go before a different Rental Officer and
16 attempt to make her case.
17 But the big difference, as I have already
18 mentioned during submissions, between Hegeman v.
19 Carter and the situation in this case is that
20 decision was in the context of an appeal; an
21 appeal of a Rental Officer's decision, granted,
22 but still an appeal, a review process, and this
23 case is not being brought forward as an appeal.
24 On an appeal, a person may well seek to have
25 an order set aside on the basis that they did
26 have a case to present and never got a chance to
27 present it. That would be for the reviewing
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1 Court to decide. But it is a different matter
2 altogether to go to the same decision making
3 level and try to get a decision that has been
4 already made stayed and also to get a rehearing
5 in front of the same level of decision making to
6 have the matter reopened and revisited.
7 I think the doctrine that applies here is
8 the doctrine of res judicata. This Court made a
9 decision on this case, and, if there are reasons
10 to revisit that, it cannot be coming back before
11 the same Court. There are areas of the law where
12 it is more flexible, where it is more possible to
13 go back and demonstrate that there is a change in
14 circumstances or circumstances that were unknown
15 at the time the original order was made. The
16 area of family law is one where that is certainly
17 more frequently done than many others.
18 But, as I have said, in this particular
19 circumstance I do not think that I can find
20 anything that would give -- and I certainly agree
21 with Mr. Large. It would be a far more
22 expeditious and simple way for the Applicants to
23 have a chance to make their case, and some of the
24 things in the affidavit material -- which at this
25 point is not contested and has not been tested
26 through cross-examination, but some of the things
27 that are in their affidavits do present a
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1 sympathetic case and some of the difficult
2 circumstances that they have faced.
3 But, in addition to the materials that were
4 filed by the Applicants, I have reviewed in
5 detail the Residential Tenancies Act, the Rules
6 of Court, the Judicature Act, and I am unable to
7 find anything in any of these statutes that would
8 give a Judge of this Court the authority to do
9 any of the things that are sought as relief in
10 this notice of motion. I do not find anything
11 that would give me the jurisdiction to order a
12 rehearing in a matter already decided by this
13 Court, nor do I see anything that would give me
14 jurisdiction to direct a stay of an order made by
15 this Court. In my view, these are remedies that,
16 if they are to be pursued, must be pursued within
17 the purview of an appeal of the April 3rd order.
18 So, counsel, for those reasons, I am
19 dismissing the application. Under the
20 circumstances, there will be no order as to
21 costs. Each party will bear their own.
22 Certified to be a true and
accurate transcript pursuant
23 to Rules 723 and 724 of the
Supreme Court Rules.
24
25
______________________________
26
Jill MacDonald, RMR
27 Court Reporter
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