Court File No.

:34642 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF NEW BRUNSWICK) BETWEEN: ANDRE MURRAY APPLICANT INTENDED APPELLANT AND: ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate RESPONDENT INTENDED RESPONDENT ________________________________________________________ Applicants Reply to Response to Application for Leave to Appeal (Rule 28) ________________________________________________________ ANDRE MURRAY APPLICANT Address for service within New Brunswick: 31 Marshall Street Fredericton, N.B. E3A 4J8 E-mail address: andremurraynow@gmail.com RESPONDENT ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate, George H. LeBlanc Solicitor for the RESPONDENT ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate

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

Table Of Contents
Page Memorandum of Argument (Rule 28) Table Of Contents ____________________________________________ Part I Memorandum of argument _______________________________ Part II Table of authorities ____________________________________ Part III Statutes, regulations, rules, etc. __________________________ i 1 6 7

1. To the Court's attention are issues of utmost public interest and national importance since they concern Constitutional and Charter Rights and Freedoms that are being compromised by impugned New Brunswick ( hereafter: NB) legislation therefore consequentially practiced likewise. As it is undisputed fact that on March 31, 2012 the Applicant is a current residential tenant in the subject property for 7 consecutive years and has paid rent for that entire duration, without interruption, every month to the same Landlords account. The Applicant has never been served a valid Notice of Termination of Tenancy or a Form 8 Notice of Transfer by the Landlord in accordance with The Residential Tenancies Act of New Brunswick, 1975, c. R-10.2, s. 13(8) (hereafter RTA NB). The Applicant asserts his section 7 of Canadian Charter of Rights and Freedoms (hereafter: the Charter) therefore, Rights were violated by the lower Courts in allowing a Mortgagee to circumvent the RTA NB, an Act NOTWITHSTANDING all others in NB thereby contravening Applicants rights as guaranteed by the Charter. Charter violations are of great public interest. See Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC, 1 para 54 -55. However, the following is therefore evidence of negligent refusal or failure to conform with implementation of the mandated streamlining of all provinces as evidenced and found in NB legislation: AN ACT RESPECTING COMPLIANCE OF THE LAWS OF THE PROVINCE WITH THE CANADIAN CHARTER OF RIGHTS AND FREEDOM 1985 SNB CHAPTER 41. 2. It is fact that on June 5, 2009 the Respondents themselves signed a Terms of Sale contract for

subject property at that time and currently rented by the Applicant that clearly stated the sale was subject to specific conditions, one of those being Clause 8, that The purchaser accepts the real estate subject to existing tenancies This clause confirms the Applicants tenancy and rights were acknowledged in the terms of the sale and any issues arising were, therefore, in the proper jurisdiction of the Rentalsman and should never have been brought before the Courts. This subject Clause 8 of Terms of Sale also confirms that there was no need to vacate the Applicant/tenant from subject property. The purchaser withdrew as the Applicant continued his tenure, according to Clause 8 of Terms of Sale. 3. The Respondent continues to aggressively harass the Applicant to therefore vacate his home

without just cause or reason apparently other than to sell the property without a tenant for material gain. 4. It is undisputed as fact that the Applicant signed two Residential Tenancy Leases for subject

property, first, a 4 year lease commencing April 1, 2005, the next lease a year to year lease commencing September 1, 2005. According to the RTA NB, lease duration is calculated concurrently from beginning of the first lease to last date of current lease, confirming at April 1, 2010 the Applicant was, by legislated definition, a long term Tenant status, at the moment the impugned termination notice was signed. The Fredericton Rentalsmans office verified this calculation of concurrent leases to be correct also concurring with the statement by this (Supreme) Court in Reference to Amendments to the Residential Tenancies Act

(N.S.), 1996 CanLII 259 (SCC). Residential tenancy disputes involve a high volume of repetitive and narrowly defined matters of limited complexity. They are amply suited to resolution by lay persons applying the rules with fairness and common sense. 5. The Applicant asserts NB legislation has not been updated to comply with section 7 and 15(1)

of the Canadian Charter of Rights and Freedoms and is therefore impugned and in need of legislative amendment under New Brunswicks Compliance of the Laws of the Province with the Canadian Charter of Rights and Freedoms 1985, An Act Respecting SNB 1985, c.41 which is a matter of great public importance. See Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (S.C.C.), [1995] 2 S.C.R. 1130 (S.C.C.), para. 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. 6. The Respondent submission claims issues regarding the Applicants five motions do not come

within the scope of this Application, further, only the decision to deny leave to appeal is to be considered. The Applicant affirms that all five motions must be considered since the Court of Appeals decision to deny was based on same. Moreover, Applicant affirms that he stands by all of his allegations and affidavits which comprehensively document the Respondents herein misrepresentations. Respondents have wasted time circumventing the RTA NB a lawful, timely, cost effective and just body, for just resolution of this Applicants tenancy issues. The Courts have demonstrated evident bias, which is a violation of the Applicants section 7 and 15(1) the Charter rights and freedoms: liberty and security of the person; equal protection and equal benefit without discrimination, in and before the law, confirming this is a matter of great public interest and importance. This Court has made it clear in cases as M. (A.) v. Ryan, 1997 CanLII 403 (S.C.C.), [1997] 1 S.C.R. 157, para 22-23 that the common law must develop in accordance with Charter values. 7. In Respondents Statement of the Questions at Issue, the Applicant re-affirms misconduct as

the Courts are in violation of the Applicants section 7 and 15(1) rights under the Charter in respect of the multiple Judicial decisions made contrary to, and in spite of legislated procedures and available lawful remedies, and also in respect of the Respondents duty under section 5(b) of the Law Society Act 1996, S.N.B. requiring the rights and freedoms of all persons to be protected by members of the Law Society. These indiscretions concern multiple Charter violations of the Applicants rights by the very agents charged to protect them therefore these subject indiscretions are consequently a matter of great public importance. New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC) Para 56 109.

8.

In response to the Respondents Statement of Argument: The Applicant maintains the judicial

discretion applied in dismissing leave to appeal was not appropriate and the Respondent confirms that the Court of Appeal has not provided any grounds or explanation at all for its apparently arbitrary dismissal of the application. In the absence of any grounds for the dismissal it can only be assumed the decision cannot be substantiated in law and was therefore a violation of the Applicants section 15(1) Charter Right and Freedom. Respondent affirms a necessity for higher Courts to intervene in such discretionary decisions, as he quotes from MacDonald v. Montreal (City), supra, at para. 145:on those rare occasions where it perceives legal principles of national, and more importantly constitutional, significance to be at stake. 9. Impugned NB legislation, bias and discrimination shown by subject Courts further as

Respondents Solicitor is a Law Society member, these factors make this a matter of great public interest and National importance. Respondents submission alluded: no constitutional implications of these matters, where the reverse is true, consequentially matters of great public importance and interest. Law societies of Canada and its members are bound by the Charter to implement relevant legislation, their legislated duty is to the public and justice above all else and are bound under sections 5(a-b) of the Law Society Act 1996, S.N.B., to protect the public interest and uphold justice and to protect the rights and freedoms of all persons. 10. Respondent section B, Priority of Mortgage to Subsequent Lease is Settled Law, subject

section B is negated by clause 8 of Terms of Sale signed on 5th June 2009, confirming that the property occupied by the Applicant was sold at the auction subject to any tenancy, evidentially the purchaser agreed to those terms by signing that document. Respondents section B is misleading, since the priority of the mortgage was in fact deferred to the tenancy by signing of Terms of Sale. 11. Applicant has continuous tenure of subject property, continues to date paying rent to the same

landlord, since April 1, 2005, reaching a landmark duration of seven years March 31, 2012 Applicant has the proof thereof. Respondent relies on obsolete, antiquated case law at paragraphs 51 - 56 quotes Williams and Rhodes Canadian Law of Landlord and Tenant or Falconbridge on Mortgages, referencing cases back to the time of confederation (1867). Cases before RTA NB and the Charter do not reflect the current standards and requirements of law respecting the rights and obligations of landlords and tenants.

12.

Relying on Royal Bank v. Zonneveld the Respondent re-affirms that on the same issue, two

different standards are being applied in Manitoba and NB. It is clear from this particular case that Manitoba has aligned its RTA to comply with Charter requirements to protect section 7 rights to liberty and security and 15(1) of the person however NB has not, this is a matter of public importance. Under Section 8.1 Interpretation Act, RSC 1985 c.I-21, common law is defined as equally authoritative to civil law and it is clear that NBs failure to provide amendments to its RTA to thereby expand the definition: Landlord to include Mortgagee or as the case may be, therefore, to reflect and be consistent with the rest of the National Legal Landscape on a tenanted property and compliant with Common Law across Canada and consistent with civil rights under the Charter. 13. Paragraph 70 - 72 Respondents submission reaffirms that the NB RTA is unlike other

provinces which have amended their Tenancy Acts. The Applicant on this matter agrees and believes that it is therefore of National Importance that the Province of NB should bring its legislation in line with the Charter. 14. The Respondents submission conspicuously omits specific dates of the Applicants concurrent

Leasehold chronology which date from 1st April 2005 up to the alleged or impugned Notice to Vacate of May 20, 2010, therefore totaling five years, one month and twenty days of uninterrupted, fully paid tenure. 15. Respondents do not provide lawful grounds or evidence to validate or justify an alleged Notice

to Vacate, other than a reliance on the discretion of the court, which discretion the Applicant asserts was inappropriately not based in law, therefore a reasonable apprehension of bias against the Applicant. The only other argument available in defence of the Respondents attempts to vacate the Applicant are that NB RTA must be relied upon however Respondent stated are issues specific to New Brunswick carrying no issues of public importance. The Applicant again points to where this provincial legislation is out of alignment with other Provinces and, more importantly, with the Charter, is of great public importance. 16. The Court elected to hear the matter without proper jurisdiction, consequentially despite

undisputed facts erroneously determined Tenant not to be of long standing, (a relevant special status) therefore erroneously determined subject lease properly terminated, these are issues of great public importance concerning all residential tenants of NB, as afforded by the notwithstanding legislation relative to these matters first requires a Rentalsmens determination before any Court of law may hear such issues.

17.

RBC, George H. LeBlanc, Court of First instance and Appeal Court Judge all overlooked

section 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 Section 15.1 rights, under the Charter, furthermore, this is a violation the principles per Semaynes Case (1604) of sanctity of the home, see R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 SCR 145 para 41-42 . 18. In this matter before The Court, pursuant to Section 7, there exists opportunity to correct a real

and imminent deprivation of liberty and security of the person as suffered by the Applicant in lower courts from which the Applicant seeks Leave. The Applicant should have been afforded protection of the RTA NB which is a legislated principle or principles of fundamental justice. The deprivation in question has occurred contrary to the relevant principle or principles as set out in RTA NB, which is security of Tenancy, unless termination is according to the Act, moreover, must be through the Rentalsmen, reasonably (in this case) see Section 26(3) of the Act. see Pratten v. British Columbia (Attorney General), 2011 BCSC 656 (CanLII) para 218 335, 239 and 295. 19. Pursuant to Section 15(1), it is blatant discrimination that the lower courts from which the

Applicant seeks Leave would not provide protection to this particular Applicant pursuant to RTA NB simply because a Mortgagee is involved, as in the subject mentioned circumstances found herein, therefore to allow this element of discrimination to stand, is to confirm a different standard for the Applicant in this matter, compared to anyone else in New Brunswick who finds protection by the Act, which therefore has the effect of demeaning this Applicant's human dignity.: Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (S.C.C.) para. 21 to 88, also, in R. v. Dyment, [1988] 2 S.C.R. 417, Justice La Forest J. para. 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". 20. If successful the Applicant will have established that these matters still before the court should

have been initially taken to the Rentalsman therefore without incurring costs to either party, should never have been brought before the courts, furthermore, with a reversal of the now standing $15,000.00 cost awarded against Applicant from lower Courts and Leave to Appeal to the Provincial Court of Appeal. ___________________________ Andr Murray Applicant

6 Part II Table of authorities Alphabetical Paragraph 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (S.C.C.), [1995] 2 S.C.R. 1130 (S.C.C.), ______________________________________ Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (S.C.C.), _________________________________________ M. (A.) v. Ryan, 1997 CanLII 403 (S.C.C.), [1997] 1 S.C.R. 157, __________ MacDonald v. City of Montreal, 1986 CanLII 65 (SCC), _________________ New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC) ___________________________________________ Pratten v. British Columbia (Attorney General), 2011 BCSC 656 (CanLII)___ R. v. Dyment, [1988] 2 S.C.R. 417, __________________________________ Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), _______________________________________________________ R. v. Landry, 1986 CanLII 48 (SCC), [1986] 1 SCR 145 __________________ Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 SCR 186 ________________________________________________ Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII)____________ 5 19 6 8 7 18 19 1 17 4 12

7 Part III Legislation The Residential Tenancies Act (S.N.B. 1975, c. R-10.2) 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b) arising or entered into before or after this Act comes into force. 13(8) Where a landlord transfers his estate in the real property of which the demised premises form all or a portion he shall notify the rentalsman and the tenant of such transfer in the form prescribed by regulation within seven days after such transfer. LONG TERM TENANCIES Application of sections 24.3 to 24.7 24.2 Sections 24.3 to 24.7 apply to all tenancies of premises, other than mobile home sites, that have been occupied by the same tenant for five consecutive years or more. 24.7(1)Where a tenant has occupied premises for five consecutive years or more, the landlord shall not serve a notice of termination of the tenancy unless (a)the landlord intends in good faith that the premises will be occupied by the landlord, the landlords spouse, a child of the landlord, a parent of the landlord or a parent of the landlords spouse Loi sur la location de locaux dhabitation (L.N.-B. 1975, ch. R-10.2) 2 La prsente loi, moins quelle nen dispose autrement de faon expresse, sapplique aux locations de locaux dhabitation et aux conventions de location relatives ces locaux a) nonobstant la Loi sur les propritaires et locataires ou toute autre loi, convention ou renonciation renfermant des dispositions contraires; et b) existant ou conclues avant ou aprs lentre en vigueur de la prsente loi. 13(8) Lorsquun propritaire transfre son droit de tenure sur les biens rels constitus en tout ou en partie par les locaux lous, il doit en aviser le mdiateur des loyers et le locataire au moyen de la formule prescrite par rglement dans les sept jours de ce transfert. LOCATIONS DE LONGUE DURE Application des articles 24.3 24.7 24.2 Les articles 24.3 24.7 sappliquent toutes les locations de locaux, autres que les emplacements de maison mobile, qui ont t occups par le mme locataire durant au moins cinq annes conscutives. 24.7 (1)Lorsquun locataire a occup les locaux pendant au moins cinq annes conscutives, le propritaire ne peut signifier un avis de rsiliation dune location que si a) le propritaire a lintention, de bonne foi, que les locaux soient occups par lui-mme, son conjoint, un de ses enfants ou parents ou un parent de son conjoint,

8 (b)the premises occupied by the tenant will be used other than as residential premises, (c)the premises will be renovated to such an extent that vacant possession is necessary to perform the renovation, or (d)the tenancy arises out of an employment relationship between the tenant and the landlord in which the employment relates to the maintenance or management of the premises, or both, and the employment relationship is terminated. 24.7(2) A landlord who serves a notice of termination of a tenancy under subsection (1) shall state the reason for the termination in the notice of termination. RENTALSMEN 26(1) The Lieutenant-Governor in Council may appoint one or more persons as rentalsmen who shall carry out such duties as are prescribed by this Act and the regulations. 26(3)No person shall obstruct, prohibit or interfere with the right of a rentalsman (a) to enter the premises where entry is made on a day other than a Sunday or other holiday and is made between eight oclock in the forenoon and eight oclock in the afternoon, or (b)to carry out his powers and duties under this Act. b) les locaux occups par le locataire seront utiliss autrement quaux fins rsidentielles, c) les locaux seront rnovs un point tel quil est ncessaire quils soient vacants pour lexcution des rnovations, ou d) la location rsulte dune relation demploi entre le locataire et le propritaire qui consiste dans lentretien ou la gestion des locaux ou les deux, et que cette relation demploi a pris fin.

24.7(2) Le propritaire qui signifie un avis de rsiliation dune location en vertu du paragraphe (1) doit indiquer le motif de la rsiliation dans lavis de rsiliation. MDIATEURS DES LOYERS 26(1) Le lieutenant-gouverneur en conseil peut nommer mdiateurs des loyers une ou plusieurs personnes qui exercent les fonctions prescrites par la prsente loi et le rglement. 26(3) Il est interdit quiconque de sopposer, faire obstacle ou porter atteinte au droit dun mdiateur des loyers a) dentrer dans les locaux si cette entre a lieu un jour autre quun dimanche ou un autre jour fri, entre huit heures du matin et huit heures du soir, ou b) dexercer les pouvoirs et fonctions que lui confre la Loi.

9 Canadian Charter of Rights and Freedoms Legal Rights Life, liberty and security of person 7. 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. Equality Rights Equality before and under law and equal protection and benefit of law 15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Charte canadienne des droits et liberts Garanties juridiques Vie, libert et scurit 7. Chacun a droit la vie, la libert et la scurit de sa personne; il ne peut tre port atteinte ce droit qu'en conformit avec les principes de justice fondamentale. Fouilles, perquisitions ou saisies Droits l'galit galit devant la loi, galit de bnfice et protection gale de la loi 15. (1) La loi ne fait acception de personne et s'applique galement tous, et tous ont droit la mme protection et au mme bnfice de la loi, indpendamment de toute discrimination, notamment des discriminations fondes sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'ge ou les dficiences mentales ou physiques

LAW SOCIETY ACT, 1996 S.N.B. 1996, chapter 89

Assented to April 25, 1996 As amended by SN B. 2009, chapter 25

LOI DE 1996 SUR LE BARREAU L.N.-B. 1996, chapitre 89

Sanctionne Ic 25 avril 1996 Mod~fiepar L.N.-B. 2009, chapitre 25

PART 2 OBJECTS

PARTIE 2 OBJETS

5 It is the object and duty of the Society (a) to uphold and protect the public interest in the administration of justice, (b) to preserve and protect the rights and freedoms of all persons, (c) to ensure the independence, integrity and honor of its members, (d) to establish standards for the education, professional responsibility and competence of its members and applicants for membership, and (e) to regulate the legal profession. (f) Repealed (July 1, 2009)

5 Le Barreau a pour mission: a) de dfendre et de proteger lintrt public dans ladministration de lajustice; b) de preserver et de protger les droits et liberts de la personne; c) de sauvegarder lindependance, lintgrit et lhonneur de ses membres; d) dtablir des normes pour Ia formation, Ia responsabilite professionnelle et Ia competence de ses membres et des personnes qui demandent ladmission; e) de reglementer Ia profession juridique. f) Abroge (1er juillet 2009)

10 Compliance of Acts of the Legislature with the Canadian Charter of Rights and Freedoms, An Act Respecting SNB 1983, c.4 and Compliance of the Laws of the Province with the Canadian Charter of Rights and Freedoms, 1985, An Act Respecting SNB 1985, c.41 Concordance certaines Lois de la Lgislature avec la Charte canadienne des droits et liberts, Loi mettant en LN-B de 1983, ch. 4 Concordance certaines lois de la province avec la Charte canadienne des droits et liberts, Loi de 1985 mettant en LN-B de 1985, ch. 41

Interpretation Act, RSC 1985, c I-21 RULES OF CONSTRUCTION Property and Civil Rights Duality of legal traditions and application of provincial law 8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a provinces rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.

Loi dinterprtation (L.R.C. (1985), ch. I21) RGLES DINTERPRTATION Proprit et droits civils Note marginale :Tradition bijuridique et application du droit provincial 8.1 Le droit civil et la common law font pareillement autorit et sont tous deux sources de droit en matire de proprit et de droits civils au Canada et, sil est ncessaire de recourir des rgles, principes ou notions appartenant au domaine de la proprit et des droits civils en vue dassurer lapplication dun texte dans une province, il faut, sauf rgle de droit sy opposant, avoir recours aux rgles, principes et notions en vigueur dans cette province au moment de lapplication du texte.