Wambolt v. New Brunswick Housing Corp., 2016 NBCA 12

• Judge: Green, Baird and French, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 26, 2016
• Jurisdiction: New Brunswick
• Citations: 2016 NBCA 12;(2016), 448 N.B.R.(2d) 296 (CA)

Wambolt v. NBHC (2016), 448 N.B.R.(2d) 296 (CA);

    448 R.N.-B.(2e) 296; 1179 A.P.R. 296

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. MY.008

Renvoi temp.: [2016] N.B.R.(2d) TBEd. MY.008

Jenn Helen Alice Wambolt and James Russell Wambolt (appellants) v. New Brunswick Housing Corporation (respondent)

(37-15-CA; 2016 NBCA 12)

Indexed As: Wambolt v. New Brunswick Housing Corp.

Répertorié: Wambolt v. New Brunswick Housing Corp.

New Brunswick Court of Appeal

Green, Baird and French, JJ.A.

March 29, 2016.

Summary:

Résumé:

New Brunswick Housing Corp. applied for an Order for Possession pursuant to the "Summary Proceedings" part of the Landlord and Tenant Act with respect to the home where the appellants had lived for almost five years.

The New Brunswick Court of Queen's Bench, Trial Division, issued an Order for Possession authorizing the Sheriff to "enter and take possession" of the home. The appellants appealed the Order.

The New Brunswick Court of Appeal allowed the appeal. The impugned decision, including the Order of Possession, was set aside, and the appellants could resume possession of the subject premises. If the parties could not agree on the outstanding rent, NB Housing could commence further proceedings.

Government Programs - Topic 2230

Housing - Rental accommodation - Termination, forfeiture and reentry - [See Landlord and Tenant - Topic 7581 ].

Landlord and Tenant - Topic 6606

Termination, forfeiture and reentry - Eviction - Writ or order for vacant possession - [See Landlord and Tenant - Topic 7581 ].

Landlord and Tenant - Topic 6626

Termination, forfeiture and re-entry - Re-entry - For nonpayment of rent - [See Landlord and Tenant - Topic 7581 ].

Landlord and Tenant - Topic 7581

Overholding tenants - Summary proceedings for possession - General - New Brunswick Housing Corp. applied for an Order for Possession pursuant to the "Summary Proceedings" part of the Landlord and Tenant Act with respect to the home where the appellants had lived for almost five years - The New Brunswick Court of Queen's Bench, Trial Division, issued an Order for Possession authorizing the Sheriff to "enter and take possession" of the home - The appellants appealed - The New Brunswick Court of Appeal allowed the appeal - NB Housing had not adjusted its records to account for the appellants' bankruptcy in March 2013 - As a result, the affidavit filed in support of NB Housing's application (and the attached Account Analysis) was materially wrong each time it referred to the quantum of unpaid rent claimed to be due from the appellants during the two-year period prior to the hearing on April 22, 2015 - The affidavit and the Account Analysis overstated all amounts claimed to be collectible from the appellants after March 2013, including when it issued the Notice to Quit in January 2015 - The hearing proceeded based on a material misapprehension of the facts - The judge's order was the product of a palpable and overriding error - The impugned decision, including the Order of Possession, was set aside, and the appellants could resume possession of the subject premises - If the parties could not agree on the outstanding rent, NB Housing could commence further proceedings.

Counsel:

Avocats:

Jenn Helen Alice Wambolt and James Russell Wambolt, per se;

Richard J. Scott, Q.C., and Paul C. Levesque, for the respondent.

This appeal was heard on February 26, 2016, before Green, Baird and French, JJ.A., of the New Brunswick Court of Appeal. The judgment of the Court of Appeal was rendered on March 29, 2016, and the following reasons were delivered by French, J.A., in both official languages, on May 5, 2016.