2012 NBCA 48, 2012 NBCA 48

COURT OF APPEAL OF NEW BRUNSWICK 109-11-CA ROSELINE ROY (Respondent) APPELLANT ROSELINE ROY (Intimé

e) APPELANTE - and - - et - PIERRE DION (Applicant) RESPONDENT PIERRE DION (Requérant) INTIMÉ Roy v. Dion, 2012 NBCA 48 Roy c.

Dion, 2012 NBCA 48 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Richard L’honorable juge Quigg Appeal from an Interlocutory Order of the Court of Queen’s Bench: July 26, 2011 Appel d’une ordonnance interlocutoire de la Cour du Banc de la Reine : Le 26 juillet 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : In édite Preliminary or incidental proceedings: Court of Appeal [2011] N.B.J.

No. 337 (QL) Procédures préliminaires ou accessoires : Cour d’appel [2011] A.N.-B. n o 337 (QL) Appeal heard: March 28, 2012 Appel entendu : Le 28 mars 2012 Judgment rendered: May 31, 2012 Jugement rendu : Le 31 mai 2012

Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Quigg Counsel at hearing: For the appellant: G. Robert Basque, Q.C. For the respondent: Monique Veillette Avocats à l’audience : Pour l’appelante : G. Robert Basque, c.r. Pour l’intimé : Monique Veillette THE COURT The appeal is allowed with costs of $2000. The motion judge’s decision and order are set aside and we order a new hearing in the Court of Queen’s Bench.

LA COUR L’appel est accueilli avec dépens de 2 000 $. La décision et l’ordonnance du juge saisi de la motion sont annulées et nous ordonnons la tenue d’une nouvelle audience devant la Cour du Banc de la Reine. English version of the decision of the Court delivered by RICHARD J.A. I. Introduction [1] With leave, Roseline Roy appeals an interlocutory decision a judge of the Family Division of the Court of Queen’s Bench rendered on July 26, 2011, ordering various forms of relief, including the listing for sale of a home Ms. Roy held jointly with her former common law spouse, Pierre Dion.

On March 28, 2012, we allowed Ms. Roy’s appeal, set aside the Court of Queen’s Bench decision, and ordered a new hearing. We advised that reasons for our decision would follow. These are those reasons.

[2] The facts underlying the proceedings in the Court of Queen’s Bench are irrelevant because our decision is limited to a fairness issue. Thus, only the procedural background needs to be laid out. [3] By Notice of Application, Mr. Dion sought certain relief following the breakdown of his common law relationship with Ms. Roy, including the sale of a home they jointly owned. By Notice of Motion, Mr. Dion applied for interlocutory measures, including the immediate listing for sale of that home with a particular real estate agent. His motion was heard on March 4, 2011. Invoking several grounds, Ms.

Roy opposed the relief sought. In the course of her counsel’s arguments at the hearing of the motion, it was noted that Mr. Dion had not yet filed a financial statement with the Court. According to Ms. Roy, this information was critical for a proper adjudication of the motion. Mr. Dion’s lawyer acknowledged the absence of a financial statement, but nevertheless argued there was sufficient financial information on the record to enable the judge to determine the issues in the motion. The motion judge ruled he would proceed to hear the motion without Mr. Dion’s financial statement.

In the course of the arguments, Mr. Dion’s lawyer undertook to file a financial statement within 10 days, but it is unclear whether it was intended to be filed in support of the underlying application or in support of the motion. Following the hearing, the judge reserved his decision and indicated the clerk of the Court would communicate with counsel to reconvene the hearing for an oral decision. [4] On March 31, 2011, counsel for Mr. Dion forwarded her client’s financial statement to the Court of Queen’s Bench and to Ms. Roy. Counsel for Ms. Roy assumed it was being filed for use in support of the application.

Three months later, on June 30, 2011, the matter not having yet reconvened for a decision, counsel for Ms. Roy wrote to the clerk of the Court advising that there had been certain developments in the matter, including the receipt of Mr. Dion’s financial statement, and asking the Court to reconvene the hearing so additional evidence could be adduced and further arguments made. Whether this correspondence was ever brought to the attention of the motion judge is unknown.

What is certain is that the parties were eventually advised the Court would reconvene on July 26, 2011, for an oral decision. [5] It appears there was some miscommunication between the Court and Ms. Roy’s counsel regarding the date on which the hearing would reconvene. Ms. Roy’s counsel only heard on July 26 that the judge would be rendering an oral decision that very day. On such short notice, counsel for Ms. Roy was unable to attend and asked another lawyer from his office to attend in his place, in the belief that this lawyer would only have to take note of the judge’s oral decision.

Unfortunately, that lawyer was not familiar with the matter. When the hearing

reconvened, the motion judge informed the lawyers he was ready to render his decision. Notwithstanding his stated intention to render a decision, the motion judge asked the lawyer now representing Ms. Roy to consent to the admission of Mr. Dion’s financial statement. The judge informed the lawyer the information had been provided at the request of Ms. Roy’s original counsel. Not knowing the background, and particularly not being aware of the June 30, 2011, letter to the Court, Ms.

Roy’s new counsel stated that she saw no basis upon which to object. [6] The motion judge then immediately proceeded to give reasons for his decision. In the course of giving those reasons, the judge sought to extract from Ms. Roy’s alternate counsel agreements on certain matters. To be rather blunt, the oral decision reads more like a dialogue between the judge and the lawyers than a ruling on matters that had been fully argued. An example of this relates to the designation of a real estate agent. The judge sought consent regarding the individual with whom the property would be listed. However, when Ms.

Roy’s new counsel indicated she had only been asked to attend to hear the decision, and sought a short adjournment during which she could call her colleague, the judge lamented the absence of Ms. Roy’s original counsel, retracted his request, and designated a real estate agent. [7] The judge allowed the motion and subsequently issued an order setting out the relief granted to Mr. Dion. Ms. Roy appeals that decision and the resulting order, putting forth two grounds of appeal: the first relating to the procedural fairness issue; and, the second attacking the merits of the decision.

We need only consider the first. [8] At the hearing of the appeal, Mr. Dion’s counsel acknowledged the judge should not have considered the financial statement in determining the motion. However, she argued that nothing in the financial statement was determinative of the issues raised in the motion and urged us to dismiss the appeal. [9] In our view, Mr. Dion’s lawyer was quite justified to concede that procedural fairness should have prevented the judge from considering the financial statement without allowing the parties the opportunity to make further submissions. Ms.

Roy’s counsel had specifically sought the opportunity to be heard on the matter of new developments, including of the filing of Mr. Dion’s financial statement. In the particular circumstances of this case, fundamental fairness required the judge to at least give Ms. Roy an opportunity to advance further arguments. This is not a case where additional evidence is filed in the aftermath of a hearing with the express consent of the parties, nor is it a case where it can be said the additional evidence played no role in the outcome. Mr. Dion’s argument that the

information contained in his financial statement was not determinative of the motion is readily answered by the observation that, if this were so, there would have been no reason for the judge to specifically note he had considered the financial statement and to seek Ms. Roy’s consent for its admission into the evidentiary record. More importantly, a review of the transcript of the oral reasons for decision makes it abundantly clear that the motion judge was influenced by the financial situation of the parties in reaching his decision. [10] For these reasons, the appeal is allowed.

The motion judge’s decision and order are set aside and we order a new hearing in the Court of Queen’s Bench. We award Ms. Roy costs in the amount of $2,000.00. _______________________________ J.C. Marc Richard, j.c.a. NOUS SOUSCRIVONS À L’AVIS : ____________________________ M.E.L. Larlee, j.c.a. ____________________________ Kathleen A. Quigg, j.c.a.