Supreme Court
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Decision information:
Abstract: Transcript of Decision on Chambers Application
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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 Official Court Reporters 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 Official Court Reporters 1 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 Official Court Reporters 2 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 Official Court Reporters 3 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 Official Court Reporters 4 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 Official Court Reporters 5 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 Official Court Reporters 6 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 Official Court Reporters 7 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 Official Court Reporters 8
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