Cecil Taylor and Kari-Lynne Taylor (appellants) v. Hugh Mallany and Sharon Mallany (respondents) (18/66) Indexed As: Taylor v. Mallany 2019 NLCA 25 4 C.A.N.L.R. 361 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and White JJ.A. April 16, 2019

Summary: The appellants, the Taylors, were living in a home owned by the respondents, the Mallanys. The Taylors and their children covered the expenses, making repairs and improvements and paying rent to the Mallanys. When the Taylors’ rent fell into arrears, the Mallanys attempted to evict them by filing an application seeking vacant possession. At a preliminary appearance which concerned an interim application for recovery of property, the self-represented Taylors had not filed a defence or a response and requested an extension of time indicating that they had evidence they wished to present.

The applications judge did not grant an extension or hear the evidence, and proceeded to grant an order for vacant possession, with damages to be assessed. The Taylors appealed arguing the hearing was unfair, and that the judge erred in granting a final order in an interim application without prior notice to the Taylors. Held: Appeal allowed. Fry C.J.N.L. (Welsh and White JJ.A. concurring): The courts owe litigants a duty of procedural fairness. Failure to provide procedural fairness will result in the decision being set aside.

The principle of audi alteram partem , referring to the right of all parties in a dispute to be heard, is well established as a tenet of procedural fairness. Procedural fairness in the court process requires additional consideration when one or more of the parties are self-represented. There is a responsibility on judges, court officials, and members to the Bar to ensure that self-represented persons are provided with fair access and equal treatment by the court which includes opportunities for all persons to understand and meaningfully present their case.

When a self-represented litigant and a litigant with counsel appear before a trial judge, there is an important balance to be managed. The judge must ensure that procedural fairness is provided to each of the parties before the court. In this case, the Mallanys were pursuing a remedy that had become frustrating for them. The Taylors were self-represented. At the first appearance they were directed to file a defence and a response to the interlocutory application within 10 days. The transcript does not reveal any further explanation to the Taylors about how to do this or the procedure to be followed.

Moreover, without even a cursory consideration of the proposed evidence, a judge, in these circumstances, could not have reached the decision that there was no merit to the Taylors’ defense. In this case, anyone would have reason to question the procedural fairness of the hearing. Related to the right to be heard is the right to notice, a party can only be meaningfully heard if they are aware of what issues are being considered by the decision-maker.

In this case, the trial judge made a final order pursuant to the statement of claim at an interlocutory hearing without notice to the party affected after denying them the opportunity to have a postponement and without allowing them to present the evidence that they wished to submit. If the judge intended to turn the interlocutory hearing into a final hearing on the statement of claim, he should have clearly provided the appellants with notice of his intention and an explanation of the consequences

and the opportunity to make submissions. To the extent the applications judge felt he could determine the matter without hearing evidence, the trial judge committed a denial ofprocedural fairness and an error of law. He also erred by entering final judgment on an interim application without notice of such apotential outcome to the Taylors. A new hearing must be ordered. Cases cited: Baker v. Canada (Minister of Citizenship & Immigration), (SCC), 1999 SCC 699, [1999] 2 S.C.R. 817 Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249 Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 R. v. Bennett, 2017 NLCA 59 Cabana v. Newfoundland and Labrador, 2018 NLCA 52 Ferrara v. Trafford (1987), (NB CA), 77 N.B.R. (2d) 358, 7 R.F.L. (3d) 151 (N.B.C.A.) Manitoba (Director of Child & Family Services) v. J.A., 2006 MBCA 44, 205 Man. R. (2d) 50 Tennis v. Stracuzza, 2007 BCCA 480, 72 B.C.L.R. (4th) 106 Malton v. Attia, 2016 ABCA 130 Bellefontaine v. Slawter, 2012 NSCA 48, 318 N.S.R. (2d) 29 Naderi v.

Naderi, 2012 BCCA 16 Counsel: Appearing on their own behalfs, the appellants; Appearing on their own behalfs, the respondents. This appeal was heard on March 15, 2019 before Fry C.J.N.L., Welsh and White JJ.A.

The following judgment was filed on April 16, 2019 by Fry C.J.N.L. for the Court. ______________________________________________________________ Fry C.J.N.L.: BACKGROUND [1] Following an order from an applications judge to vacate their home, the appellants, the Taylors, appealed the decision of theapplications judge on the basis that they were denied procedural fairness at the hearing. [2] The Taylors were living in a home on a rent-to-own basis. When the Taylors were unable to secure funding to purchase thehome, the Mallanys purchased it.

The Taylors and their children continued to live there while covering expenses, making repairs andimprovements and paying rent to the Mallanys. [3] The Taylors’ rent fell into arrears and the Mallanys attempted to evict them, ultimately filing a statement of claim seekingdamages for trespass and an order for vacant possession.

In conjunction with the statement of claim, the Mallanys also filed aninterlocutory application for recovery of property pursuant to rule 27 of the Rules of the Supreme Court, 1986. [4] The self-represented Taylors had not filed a defence or a response to the application by the time the interlocutory applicationwas heard on June 8, 2018. At that appearance, the Taylors requested an extension of time and indicated that they had evidence theywished to present. The applications judge did not grant an extension or hear the evidence, and proceeded to grant an order for vacantpossession, with damages to be assessed.

FACTS

[5] This

summary of facts is based primarily on a review of the documents filed in this Court, as there were limited findings of factmade by the applications judge. The background facts, outlined below, may or may not have been contested had the matter proceeded totrial. These facts are presented purely to provide context and are largely unnecessary to the determination of the procedural fairnessissue which is the crux of this appeal. [6] Cecil and Kari-Lynne Taylor are the son-in-law and daughter of Hugh and Sharon Mallany. The Taylors were living in a homeon a rent-to-own basis.

The Taylors were unable to secure financing at the end of the term of the agreement, and continued living in theproperty as tenants. The homeowners subsequently notified the Taylors that the property was being listed for sale, and that they wouldbe receiving a notice to vacate. [7] In January 2013, the Mallanys purchased the home at the request of the Taylors. The Taylors paid the down payment, while theMallanys paid the remainder of the costs through a secured line of credit.

The home was registered in the Mallanys’ names. [8] The Taylors and Mallanys entered a lease agreement, with rent set at $840 per month, based on the municipal property tax andthe cost to service the Mallanys’ debt. This agreement was put into writing on August 15, 2014 with an effective date of February 13,2013. [9] When the Taylors failed to meet their payment obligations under the lease, the Mallanys issued a written notice of terminationon November 23, 2015, terminating the lease as of April 30, 2016.

This was later extended to June 30, 2016. [10] The Taylors did not vacate the property, and the Mallanys commenced proceedings under the Residential Tenancies Act, SNL2000 c. R-14.1 for an eviction order. The Director determined that he did not have jurisdiction, as the Taylors asserted an ownershipinterest in the property, which took it outside of a purely rental arrangement. [11] On December 14, 2017, the Mallanys, with the assistance of legal counsel, filed a statement of claim in Supreme Court, allegingdamages in trespass, and seeking an order for vacant possession.

The Mallanys also filed an interlocutory application on the same dateseeking interim recovery of the property. [12] The matter was first called in Supreme Court on January 18, 2018.

At that appearance, a judge set June 8, 2018 for the hearing ofthe interlocutory application, and ordered that a defence to the statement of claim and a response to the interlocutory application be filedwithin 10 days. [13] On January 29, 2018, the Taylors emailed the Supreme Court general inquiries account asking for an extension of time to preparetheir defence because they were having difficulties finding appropriate legal assistance.

On February 2, 2018 they received a replystating: “Unfortunately the court cannot grant an extension without an application for same. … If you wish the matter to be postponed,you will have to apply for an extension of time or get consent of [legal counsel for the Mallanys].” [14] Between the January 18, 2018 appearance and the June 8, 2018 hearing, the self-represented Taylors did not file an applicationfor an extension of time, a defence, or a response to the Mallanys’ application.

At the hearing, the Taylors indicated that they wereseeking legal assistance and requested an extension of time to attempt to resolve the dispute. The applications judge did not explicitlyconsider the request for an extension, but proceeded to hear argument from counsel for the Mallanys.

At that time, the Taylors indicatedthat there was evidence they wished to present. [15] The applications judge did not hear or accept any evidence from the Taylors at the hearing, and granted the Mallanys an orderfor vacant possession, with leave to request a date for assessment of damages after the property was vacated. [16] On June 21, 2018, the Taylors, self-represented, filed a notice of appeal along with an application for a stay pending appeal. Thestay was granted, with the Taylors ordered to make weekly payments to the Mallanys composed of rent and arrears for the period thatrent payments were missed.

The stay order also provided that the Mallanys had leave to make application for directions or to have thestay application reconsidered if the Taylors failed to make the required payments. No further applications were made and the Mullanysconfirmed at the hearing of the appeal that they had received all payments required under the stay order. ISSUES [17] There are two issues raised by this appeal, both of which involve consideration of whether the Taylors received a fair hearing. The issues are: 1.

Did the judge err by denying the Taylors an opportunity to present evidence and argument at the application hearing? 2. Did the judge err in granting final relief on an interim application without prior notice to the Taylors? ANALYSIS Duty of Fairness [18] There is relatively limited jurisprudence dealing with the duty of fairness in the context of a judge’s conduct of a hearing.

Morecommon are cases where a statutory tribunal has been tasked with the conduct of hearings such as citizenship, professional disciplinary,human rights, and labour relations proceedings. [19] It is my view nonetheless that the same principles apply. In Baker v. Canada (Minister of Citizenship & Immigration), (SCC), 1999 SCC 699, [1999] 2 S.C.R. 817, the Supreme Court of Canada stated that one of the factors to consider whendetermining the content of the duty of fairness for a statutory tribunal is how closely the administrative decision maker’s function

resembles a judicial function. This is because the court process is intended to be the gold standard of procedural fairness by which otherdecision-makers are to be measured. [20] Where a party alleges a breach of the rules of procedural fairness, the reviewing court does not need to engage in a detailedassessment of the appropriate standard of review. Failure to provide procedural fairness will result in the decision being set aside(Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; Canada (Citizenship and Immigration) v.Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Ellis-Don Ltd. v.

Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221). [21] The principle of audi alteram partem, referring to the right of all parties in a dispute to be heard, is well established as a tenet ofprocedural fairness. In concurring reasons by Justice Hoegg in R. v. Bennett, 2017 NLCA 59, the right to be heard was referred to as a“principle of natural justice” which is “fundamental to the proper functioning of our justice system” (paragraph 16). [22] Procedural fairness in the court process requires additional consideration when one or more of the parties are self-represented.

Reference on this point can be made to the Statement of Principles on Self-Represented Litigants adopted by the Canadian JudicialCouncil in September 2006. [23] Green J.A., in Cabana v. Newfoundland and Labrador, 2018 NLCA 52 referred to the Principles as follows: [51] The Statement of Principles […] is designed to give substance, by way of guidance, as to the circumstances under and the degreeto which pro-active assistance can and should be provided to self-represented litigants. They have been “endorsed” by the Supreme Courtof Canada in Pintea v.

Johns, 2017 SCC 23, [2017] 1 S.C.R. 470 [per Karakatsanis J. at paragraph 4]. They have also been recognized,discussed or applied by appellate courts in Ontario (Moore), Manitoba (Dewing), British Columbia (Cole v. British Columbia Nurses’Union, 2014 BCCA 2), 371 D.L.R. (4th) 711) and in this province (Young v.

Noble, 2017 NLCA 48 281 A.C.W.S. (3d) 408). [24] At paragraph 53 of the decision, Green J.A. notes that the Principles impose responsibility on judges, court officials, andmembers to the Bar to “ensure that self-represented persons are provided with fair access and equal treatment by the court” whichincludes “opportunities for all persons to understand and meaningfully present their case.” And further at paragraph 54, he suggests thatthe Principles should be treated as having some legal effect: [54] Thus, although they are not to be treated as a code of conduct applicable unbendingly in all situations, the Principles must betreated as having some legal effect.

While the Supreme Court did not elaborate on what was meant when they said they “endorse” thePrinciples, it must have involved at the very least recognition that they should be regarded as having some legal consequence. … [25] It is through this lens that the issues underlying the duty of fairness in this appeal must be considered. It is not sufficient toconsider whether the process was fair in the abstract, but whether the process was fair in this particular case, especially in light of theTaylors’ status as self-represented litigants.

The Right to Make Submissions [26] A fundamental element of the right to be heard is the right of a party to present their case to the decision-maker. [27] At the June appearance, the Taylors asked for an extension of time, and, when that request was seemingly denied, asked topresent evidence at the hearing. The applications judge denied the second request, and proceeded to grant relief against the Taylorswithout hearing meaningful argument from them. [28] In Ferrara v.

Trafford (1987), (NB CA), 77 N.B.R. (2d) 358, 7 R.F.L. (3d) 151 (N.B.C.A.) the Court wroteon the subject of procedural fairness: The standard to be achieved in the conduct of a trial is "that every litigant, however disappointed in the result of his action, should haveno justifiable cause to complain that his case was not fairly and fully heard": see Delaney & Co. Ltd. v. Berry and Perry (1964), (MB CA), 50 W.W.R. 493, 49 D.L.R. (2d) 171 at 173 (Man. C.A.), cited with approval by this Court in Nat. Bank of Canadav.

Zed (1986), (NB CA), 72 N.B.R. (2d) 34 at 37, 183 A.P.R. 34. [29] The arguments and evidence that a party wishes to bring forward may not always be relevant to the matter in dispute. This is truefor both represented and self-represented litigants. While judges have a responsibility to manage their courtroom and not allowproceedings to be derailed by irrelevant matters, they also have a responsibility to ensure that litigants can reasonably understand whycertain things are not considered. [30] The case law demonstrates certain situations where the line clearly was crossed.

For example, in Manitoba (Director of Child &Family Services) v. J.A., 2006 MBCA 44, 205 Man. R. (2d) 50, the Court of Appeal considered a mid-trial application for recusal of thetrial judge due to bias. The self-represented applicant raised the matter immediately after the trial judge dismissed an application for anadjournment, with no formal application for recusal being filed. [31] One of the issues on appeal was whether the judge erred by not hearing argument on the bias application.

The respondent to theappeal in J.A. conceded that the trial judge’s approach was “problematic,” but emphasized that there was no evidence of bias, andtherefore no prejudice to the self-represented party by not hearing the application. While the Court of appeal agreed that there was “littlemerit, if any” to the application, it found that this did not dispose of the issue on appeal: 35 Here it was only the appellant's subjective appreciation of the circumstances along with her discontent over the trial judge's ruling onher adjournment that motivated her bias motion.

Having said that, I am of the view that in all of the circumstances, the judge erredwhen he completely refused to hear what the appellant wished to say about her motion.

40 The role of the trial judge has changed dramatically in recent years as more litigants appear in court on their own behalf on very serious matters. The challenge for the trial judge to be balanced, fair-minded and patient is daunting. While the record demonstrates that the trial judge met these challenges early in the proceedings, he failed to do so as the proceedings progressed.

As a result, the appellant did not receive the fair hearing to which she was entitled. (Emphasis added.) [ 32 ] In the context of responding to an application, a similar issue was addressed by the British Columbia Court of Appeal in Tennis v. Stracuzza , 2007 BCCA 480 , 72 B.C.L.R. (4th) 106 . The dispute in Tennis concerned an application by the defence for production of the plaintiff’s medical records.

The application was summarily granted, without the self-represented plaintiff being given an opportunity to respond. [ 33 ] On appeal to the Supreme Court, the reviewing judge found that the transcript left “no doubt” that the plaintiff was denied the opportunity to make submissions. The judge stated that there is a “fundamental principle of justice that on a contested application the losing party has the right to make submissions,” and that this principle had been contravened ( 2006 BCSC 70 , at para. 18 ).

The Court of Appeal confirmed that the refusal to hear submissions constituted an error of law and was not a mere technicality. [ 34 ] In the present case, the record of the 20-minute hearing on June 8, 2018 pertaining to this matter, including the judge’s oral decision, was provided by transcript.

At the commencement of the hearing, counsel for the Mallanys advised the applications judge that there was a statement of claim as well as an interlocutory application filed and that the parties were before the Court that day to deal with the interlocutory application. [ 35 ] The Taylors advised the judge that they were trying to retain a lawyer but did not have sufficient funds and asked for a short extension for time to try and resolve the dispute.

During the course of the discussion between counsel for the Mallanys and the judge, the Taylors asked several times if they could present paper work to the judge who declined to receive it. [ 36 ] Counsel for the Mallanys advised the Court that there were significant arrears but was unsure of exactly how much. He advised the Court that they were not seeking money but simply an order to have the property returned on an interlocutory basis at that time.

The Taylors tried to refer the judge to documents from their hearing at Residential Tenancies indicating that they had an ownership interest in the property. [ 37 ] A discussion took place between counsel for the Mallanys, the judge and Mr. Taylor about his financial circumstances and the efforts made to obtain mortgage funds to pay the Mallanys. The Taylors referred to the agreement between the parties and that they had been making payments but had not been able to pay for the last six months due to trying financial circumstances.

The Taylors also referred to significant and costly improvements they had made to the property, but the judge did not allow them to present the photographic evidence they had brought on this point. [ 38 ] Further discussion occurred regarding the amount of arrears with counsel advising that in 17 months there were $12,630 in arrears. Mr. Taylor tried to correct that statement saying that “we have records that’s not true …” No records were permitted to be entered, and the judge did not engage with Mr. Taylor on the nature of the alleged records. [ 39 ] The judge asked “Anything else before I hand down my decision?

The Taylors asked: “Are we able to present the name and everything of the letter we have from the mortgage broker? The Court: “No, no, that's between you and the mortgage broker. The documents filed with the court indicated this matter is seriously in arrears. The plaintiffs are entitled to be paid, as was agreed to in the documentation filed with the court. Even on a technical basis, you were told to file a defence back in January… and you failed to do so. But notwithstanding that, it appears that you don't have any defence to the non-payment of the monies.

Just because the plaintiffs are relatives, doesn't mean they have to waive or not able to collect a debt that's owing to them.” [ 40 ] The documents filed with the court, as referred to by the applications judge, were the affidavit of Hugh Mallany, with attached deed of conveyance showing the property registered in the names of Hugh Mallany and Sharon Mallany, and the Residential Tenancies’ decision. [ 41 ] The judge went on to order the Taylors to vacate the property within 30 days. [ 42 ] When a self-represented litigant and a litigant with counsel appear before a trial judge, there is an important balance to be managed.

The judge must ensure that procedural fairness is provided to each of the parties before the court. In this case, the Mallanys were pursuing a remedy that had become frustrating for them especially after Residential Tenancies determined that the matter was not within their jurisdiction. Once they commenced their action in the Supreme Court, in late December 2017, the matter was called quickly before a judge for directions and setting of a date. [ 43 ] The Taylors were self-represented at this hearing on January 18, 2018.

They were directed to file a defence and a response to the interlocutory application within 10 days and a date was set for June 2018. At the January 18, 2018 hearing the transcript does not reveal any further explanation to the Taylors about how to do this or the procedure to be followed. [ 44 ] The judge’s comment at the June hearing that “it appears that you don't have any defence to the non-payment of the monies” could not reasonably have been reached in light of the failure to see the evidence and hear the argument of the Taylors.

Without even a cursory consideration of the proposed evidence, a judge, in these circumstances, could not have reached the decision that there was no merit. [ 45 ] The role of the trial judge has changed in recent years as more litigants appear in court on their own behalf. The challenge for the trial judge is to be balanced, fair-minded and patient while making efforts to reasonably demonstrate that the process was fair and

appropriate. In this case, anyone, including the Taylors, as self-represented litigants, would have reason to question the procedural fairness of the hearing on June 8, 2018. The Right to Notice [ 46 ] Related to the right to be heard is the right to notice.

A party can only be meaningfully heard if they are aware of what issues are being considered by the decision-maker. [ 47 ] The first page of the application that was served on the Taylors states that its purpose is to “obtain [an] interim order for recovery of property.” The application was brought pursuant to rule 27 of the Rules of the Supreme Court, 1986 , which primarily contemplates interim recovery orders, although there is also authority under that rule to make a final order. [ 48 ] In this case, the trial judge made a final order pursuant to the statement of claim at an interlocutory hearing without notice to the party affected after denying them the opportunity to have a postponement and without allowing them to present the evidence that they wished to submit. [ 49 ] In Malton v.

Attia , 2016 ABCA 130 , the appellants – a lawyer and his law firm – were sued by their former clients for negligence. The respondents were self-represented. The trial judge found the appellants negligent and made an order including punitive damages payable to the Legal Aid Society of Alberta, which was not a party to the action. The appellants appealed the decision, and argued that it was procedurally unfair, as the trial judge made findings and drew conclusions adverse to the appellants without giving them an adequate opportunity to respond.

The Court of Appeal, at paragraph 42, held that the appellants were not afforded a procedurally fair trial because there were several instances where the appellants were not given an adequate opportunity to know and meet the case against them. [ 50 ] In Bellefontaine v. Slawter , 2012 NSCA 48 , 318 N.S.R. (2d) 29 , the Court of Appeal was dealing with a number of issues in a child relocation matter. The trial judge had allowed the mother’s application to relocate out of province with the children, and also ordered that the father have yearly supervised access.

The Court of Appeal upheld the trial judge’s decision that allowing the relocation was in the best interests of the child, but removed the condition that access be supervised. The Court of Appeal decided that including the condition was a breach of procedural fairness, as that relief was not sought by the applicant, and it was not suggested by the trial judge during the hearing that he was considering making such an order.

As a consequence, there was no opportunity for the father to cross- examine, lead evidence, or make submissions on this issue. [ 51 ] The issue was also addressed in the British Columbia decision of Naderi v. Naderi , 2012 BCCA 16 in the context of a family law proceeding where both parties were self-represented. In Naderi , the husband filed an application to vary an order that the wife have sole control of the sale of the matrimonial home. The applications judge made an order that the wife could purchase the home at a certain price.

The husband appealed on the basis that the applications judge had erred by granting relief that was not sought in the application before the Court. He argued that without an application filed, he did not have notice of the potential outcome. [ 52 ] The Court of Appeal in Naderi agreed with the husband’s argument, and referred to authority stating that self-represented litigants are particularly entitled to notice of the potential outcome of court proceedings.

The Court of Appeal declared at paragraph 22 that the order was a nullity and set it aside “ on the basis that it was made in breach of the rules of natural justice, that is, without notice and without giving Mr. Naderi an opportunity to be heard.” [ 53 ] In the present case, the submissions of counsel for the Mallanys at the hearing are consistent with the relief being sought on an interim basis.

Counsel indicated that it was an unusual use of rule 27 and referenced that “there will be a bond necessary to file with the Court and those procedural things… can be made subject to the filing of the necessary requirements under rule 27.” This bond requirement applies to interim recovery orders, wherein the party granted interim recovery of property posts a bond to guarantee that the property will not be improperly dealt with pending disposition of the matter. [ 54 ] Despite counsel for the Mallanys requesting interim recovery, the applications judge proceeded to make a final order granting vacant possession “as sought in Paragraph 11 of the Statement of Claim.” The final order granted leave for the Mallanys to request a date for assessment of damages after the property was vacated. [ 55 ] The Court noted that a draft order seeking three remedies had been submitted and asked counsel what he was looking for.

Counsel responded: What we are looking for today Justice is an order that the parties be—to vacate the property and that Mr. and Mrs. Mallany be put into possession on an interlocutory basis. However given that there’s been a default in defense we would also ask that they be-that that may- that’s not interlocutory now. We’re here. There’s been no default.

What I am asking for is an order for possession and an order also or a date that we set down for the other items of relief claimed in the statement of claim which would be the damages that my clients have incurred… [ 56 ] If the judge intended to deal with the interlocutory application pursuant to rule 27, he should have addressed the requirements set out in the rule in his order.

If the judge intended to turn the interlocutory hearing into a final hearing on the statement of claim, he should have clearly provided the appellants with notice of his intention and an explanation of the consequences and the opportunity to make submissions. [ 57 ] It appears that the judge found his authority to make the order as a combination of

summary resolution in the absence of an arguable defence, and on the basis that there had been a failure to file a defence as required under both the Rules of the Supreme Court, 1986 , and the judge’s order at the January 18, 2018 hearing. [ 58 ] Rule 16.01(2)(

d) of the Rules does allow a plaintiff to obtain an order for costs and vacant possession if the defendant fails to file a defence within 10 days of being served in an action for the possession of land. Had the Mallanys not filed the interlocutory application for the return of property, a default judgment for vacant possession could have been entered 10 days after the statement of claim was

served on the Taylors. Notice of this possibility is provided to all defendants in the standard form document attached to a statement of claim issued by the Supreme Court. [ 59 ] However, once the Taylors appeared in Court as self-represented litigants at the January 28, 2018 appearance, an over the counter default judgment ceased being appropriate. The judge at the January appearance did direct the Taylors to file a defence, but made no reference to the consequences of a failure to do so.

They had no basis to think that they were facing the dire prospect of having judgment entered against them if they failed to file a defence within the ordered timeline. [ 60 ] To the extent the applications judge felt he could determine the matter without hearing evidence, I would conclude that the trial judge committed a denial of procedural fairness and an error of law.

Having denied the Taylors an extension of time, and the opportunity to present evidence, he erred by entering final judgment on an interim application without notice of such a potential outcome to the Taylors. [ 61 ] I would allow the appeal and remit the matter to the Supreme Court to take appropriate steps to bring the matter on for a hearing. Appeal allowed.