r v. Hopper et al., 2011 NBCA 37

COURT OF APPEAL OF NEW BRUNSWICK 35-10-CA DAVID ARTHUR HOPPER APPELLANT DAVID ARTHUR HOPPER APPELANT - and - - et - STEPHEN RONALD HOPPER, TANYA COLLEEN HOPPER, MICHAEL ROGER TINGLEY and MELISSA DAWN (PATTEN) TINGLEY RESPONDENTS STEPHEN RONALD HOPPER, TANYA COLLEEN HOPPER, MICHAEL ROGER TINGLEY et MELISSA DAWN (PATTEN) TINGLEY INTIMÉS Hopper v. Hopper et al., 2011 NBCA 37 Hopper c.

Hopper et al., 2011 NBCA 37 CORAM: The Honourable Justice Turnbull The Honourable Justice Larlee The Honourable Justice Bell CORAM : L’honorable juge Turnbull L’honorable juge Larlee L’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: February 19, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 19 février 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 53 Décision frappée d’appel : 2010 NBBR 53 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: October 12, 2010 Appel entendu : Le 12 octobre 2010 Judgment rendered: April 21, 2011 Jugement rendu : Le 21 avril 2011

Reasons for judgment by: The Honourable Justice Turnbull Motifs de jugement : L’honorable juge Turnbull Concurred in by: The Honourable Justice Larlee The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Bell Counsel at hearing: For the appellant: Jillian E. Jordan For the respondents: Michael Roger Tingley and Melissa Dawn Tingley Appeared in person No one appeared for the respondents Stephen Ronald Hopper and Tanya Colleen Hopper Avocats à l’audience : Pour l’appelant : Jillian E.

Jordan Pour les intimés : Michael Roger Tingley et Melissa Dawn Tingley ont comparu en personne. Personne n’a comparu pour les intimés Stephen Ronald Hopper et Tanya Colleen Hopper THE COURT The appeal is dismissed without costs. LA COUR L’appel est rejeté sans dépens. The judgment of the Court was delivered by TURNBULL, J.A. [ 1 ] David Arthur Hopper (“David Hopper”) appeals, in essence, two findings made by a Judge in the Court of Queen’s Bench in a decision dated February 19, 2010 and reported at 2010 NBQB 53 (the “Tingley Decision”).

As a judgment creditor, he alleges the trial judge erred in “law and/or mixed law and fact in restricting and limiting [his] ability to enforce and collect” on two registered judgments: one against the respondents Stephen Ronald Hopper (his son) and Stephen’s wife, Tanya Colleen Hopper (“Mr. and Mrs. Hopper”) in the amount of $350,000 plus costs of $950; and the other against the respondents, Michael Roger Tingley and his wife, Melissa Dawn (Patten) Tingley (“Mr. and Mrs. Tingley”) in the amount of $350,000 plus costs of $14,875 (the “David Hopper Decision”).

Further, he alleges the trial judge erred in law in not awarding him costs “at trial following the granting of his motion for a non-suit”. [ 2 ] David Hopper seeks a variation of the Tingley Decision to allow him to: (1) enforce those judgments he obtained in the David Hopper Decision; (2) execute the judgments “against any and all property of [Mr. and Mrs. Tingley and Mr. and Mrs. Hopper] forthwith”; and (3) costs of this appeal and the trial. The David Hopper Decision was not appealed.

[ 3 ] At the appeal hearing, David Hopper was represented by counsel. Mr. and Mrs. Hopper neither appeared nor filed a submission. Mr. and Mrs. Tingley appeared representing themselves, but did not file a written submission. In their oral submission they stated that their principal concern was protecting their residential home property. [ 4 ] For the reasons that follow, I would dismiss the appeal without costs. I.

Background [ 5 ] I can do no better than quote the trial judge concerning the genesis of this case: This is another of these cases which indicates that business with friends has the potential for financial disaster for all concerned. [para. 1] Moreover, in their pleadings, the parties agree: “The friendships and business relationships have since deteriorated”. [ 6 ] Mr. and Mrs. Hopper and Mr. and Mrs. Tingley decided “to construct and operate a convenience and video rental store”. David Hopper agreed to help construct and finance the project. He made an unsecured $350,000 loan to them.

Construction on land owned by Stephen Hopper was completed in the fall of 2005. The trial judge found the business was “operational from approximately September 2005 to July 2007”. In September 2007, David Hopper sought repayment of the balance of his loan, since only two $500 loan payments had been paid: one in January 2007 and the other in February 2007. [ 7 ] The registered and alleged ownership of three parcels of land are central to the two actions heard together by the trial judge, and underpin his disposition of the issues.

In New Brunswick, all registered parcels of land are assigned a Parcel Identifier Number (“P.I.D.”). [ 8 ] The three parcels of land are: (1) the land on which the convenience store was constructed (P.I.D. 5082680) registered in the name of Stephen Hopper as a tenant in common with Melissa Dawn Patten (Michael Tingley’s wife) as evidenced by the Certificate of Registered Ownership as at 2008-05-09 (“the Store Lot”); (2) the land on which Mr. and Mrs. Hopper constructed a home (P.I.D. 5082698) registered in the name of Mr. and Mrs.

Hopper as joint tenants (“the Hopper Home Lot”); and (3) the land adjacent to the Hopper Home Lot on which Mr. and Mrs. Tingley constructed a home (P.I.D. 5082706) registered in the name of Mr. and Mrs. Hopper as joint tenants (“the Tingley Home Lot”). Registered title to the Hopper Home Lot was originally in the name of Stephen Hopper when purchased in July 2004. Michael Tingley alleged he contributed 50% of the $19,000 purchase price. Registered title to the Tingley Home Lot was in Mr. and Mrs. Hopper’s name when purchased in February 2005. They paid the $20,000 purchase price. Mr. and Mrs.

Tingley allege there was an oral agreement that following construction of the two homes, balancing funds and a deed would be exchanged so that each family would solely own their own home. [ 9 ] When David Hopper lent the $350,000 to pay for the construction on the Store Lot, he did not secure his loan with a mortgage. Subsequently on October 18, 2007, he obtained and registered a collateral mortgage against the title to the Tingley Home Lot, the Hopper Home Lot and the Store Lot. Mr. and Mrs.

Hopper were the only mortgagors. [ 10 ] Following the registration of the collateral mortgage, David Hopper commenced an action, in November 2007, in the Court of Queen’s Bench (M/C/0738/07) against the respondents. Mr. and Mrs. Tingley contested the action while Mr. and Mrs. Hopper permitted judgment to be entered against them in the amount of $350,000 plus costs of $950; that judgment was recorded on April 28, 2008. [ 11 ] On December 2, 2008, Mr. and Mrs. Tingley commenced an action in the Court of Queen’s Bench (M/C/0798/08) against David Hopper and Mr. and Mrs. Hopper.

The relief they requested were orders that: (1) they own the Tingley Home Lot and title to it be transferred to them;

(2) David Hopper be directed to register a discharge of the collateral mortgage and a discharge of his judgment against his son and daughter-in-law which was registered against the Tingley Home Lot, as well as damages. Alternatively, they sought relief on a “quantum meruit/unjust enrichment basis”. Mr. and Mrs. Tingley claimed that, “[f]raudulently and without colour of right”, Mr. and Mrs. Hopper pledged the Tingley Home Lot by a collateral mortgage to Stephen Hopper’s father, David Hopper.

[12] On June 19, 2009, on an application by Mr. and Mrs. Tingley for a stay of an Order for Seizure and Sale, thetrial judge ordered: That the Sheriff’s sale in relation to Moncton cause M/C/0738/07 [“David Hopper’s action”] concerning the sale of a convenience storeand residential property as set forth in the Affidavit of Melissa Dawn Tingley is hereby stayed until judgment in the ActionsM/C/0798/08 [the “Tingleys’ action”] and [David Hopper’s action] have been delivered by this Court or until further order of the Court.[the “Stay Order”, para. 1] [Emphasis added.] [13] Thereafter, the trial judge heard David Hopper’s action and the Tingley’s action together pursuant to Rule6.01(1)(

d) of the Rules of Court on October 12, 13, 14 and 15, 2009 and January 19, 2010. He did not consolidate them. It is his decisionwith respect to the Tingley action only that is appealed to this Court. [14] During the trials, the trial judge issued a Consent Order dated October 15, 2009, (the “Consent Order”) inwhich Mr. and Mrs. Tingley consented to a judgment in favour of David Hopper in his action in the amount of $350,000 plus costs of$14,875, which judgment provided that it “shall be registered against” the Store Lot only.

The Consent Order further provided that, afterregistration of the judgment, the Store Lot shall be listed for sale by “Re/Max at price of $450,000.00 plus HST for a period expiringDecember 14, 2009 with the listing agreement being signed by Stephen Hopper, Tanya Hopper and Melissa Tingley”. [15] The Consent Order fixed the real estate commission at 12% in the event of a sale at $450,000 plus HST.

Itfurther provided that should the Store Lot not be subject to a binding agreement of purchase and sale at the set terms before December14, 2009, “David Hopper may pursue whatever remedies he may deem necessary to satisfy judgment”. The Store Lot was not subject tosuch an agreement on December 14, 2009. [16] The Consent Order made no reference to the Stay Order and both orders were granted prior to the delivery ofjudgment in the Tingley’s action. Recall that the Consent Order and the Stay Order dealt, however, with decisions in David Hopper’saction concerning the loan.

They, together with David Hopper’s registered judgment against Mr. and Mrs. Hopper, comprise the DavidHopper Decision. The Tingley’s action, however, primarily concerned the ownership of the Tingley home and the propriety of DavidHopper’s registration of the collateral mortgage and his judgment against Mr. and Mrs. Hopper against the Tingley Home Lot. [17] When Mr. and Mrs. Tingley completed their evidence, counsel for David Hopper moved for a non-suit motionwhich the trial judge subsequently granted in his decision.

David Hopper alleges that the granting of the non-suit motion “dismissed the[Tingley] action against David [Hopper]” and because of that success, he should have been awarded costs. I will deal later with the extentto which the granting of the non-suit motion dismissed Mr. and Mrs. Tingley’s claims against David Hopper. II.

Trial Decision [18] Notwithstanding the David Hopper Decision in the Store Lot loan matter, the trial judge in the Tingley actionunderstood “that the Tingley home matter would not be subject to [the David Hopper Decision] until this matter was finally determinedand subject to the other sale [store] and proceedings” (para. 11). The trial judge found the evidence established that Mr. and Mrs. Tingleyhelped Mr. and Mrs. Hopper build “their home and they reciprocated when the Tingleys built their home”. He commented there was norecord-keeping and that many of the claims and counterclaims “are difficult to resolve”.

He noted that “Stephen [Hopper] alsoacknowledged that he gave the original deed of the [Tingley Home Lot to Mr. and Mrs. Tingley]”. Further, he stated: “I am also satisfiedthat neither [Stephen nor David Hopper] were actively involved in the construction of the Tingley home, although Stephen [Hopper]may have paid for items that went into that property along with his own property” (para. 15). The trial judge concluded that DavidHopper “made no contribution to the Tingley house”.

The trial judge determined that the evidence established that it was Mr. and Mrs.Hopper’s intention that the Tingley Home Lot “would be owned” by Mr. and Mrs. Tingley. Finally, in connection with balancing thefinancial expenditures that each made to the other’s home construction, the trial judge found that Mr. and Mrs. Tingley owed Mr. andMrs. Hopper $20,000. [19] The trial judge applied the seminal three-part test prescribed by the Supreme Court of Canada in Peter v.Beblow, (SCC), [1993] 1 S.C.R. 980, [1993] S.C.J. No. 36 (QL) at paras. 2-5, to determine that Mr. and Mrs.

Hopperhad been unjustly enriched because: (1) the $250,000 to $275,000 range of improvements made by Mr. and Mrs. Tingley to the Tingley

Home Lot which was registered in Mr. and Mrs. Hopper’s name enriched Mr. and Mrs. Hopper;

(2) Mr. and Mrs. Tingley suffered corresponding deprivation because Mr. and Mrs. Hopper “withheld” conveying ownership of the Tingley Home Lot to them; and (3) there was no juristic reason for continuation of such enrichment. [ 20 ] The trial judge decided that in the circumstances, a constructive trust existed in favour of Mr. and Mrs. Tingley and the appropriate remedy would be to order that Mr. and Mrs. Hopper convey the Tingley Home Lot to Mr. and Mrs. Tingley free of any encumbrances, “save and except the judgment of David [Hopper] against all four and the $20,000 amount [Mr. and Mrs.

Tingley owed Mr. and Mrs. Hopper]”. [ 21 ] Concerning Mr. and Mrs. Tingley’s allegation that David Hopper registered the collateral mortgage “fraudulently and without colour of right” knowing that Mr. and Mrs. Tingley had an interest in the Tingley Home Lot, the trial judge found that that fact did not establish fraud. He said: “Therefore, with respect to this aspect of [Mr. and Mrs. Tingley’s] case, the Motion of non-suit is granted”. However, because David Hopper “knew or ought to have known that the [Tingley Home Lot] was owned by Mr. and Mrs.

Tingley or [they] had an interest in the property … [he did] not believe the collateral mortgage against the [Tingley Home Lot] is proper and [it] must be removed from [that property] presently registered in the name of [Mr. and Mrs. Hopper]” (para. 49). When the collateral mortgage was registered, in addition to the fact that title to the Tingley Home Lot was not registered in their name, David Hopper had neither a judgment against Mr. and Mrs.

Tingley nor a security document in his favour from them securing the loan to construct the convenience and video rental store. [ 22 ] Before issuing orders with respect to the issues he had to resolve in the Tingley’s action the trial judge summed up his conclusions as follows: The Court now has the difficult task of unravelling the different arrangements among the parties. As noted, [Mr. and Mrs. Tingley] have consented to a judgment in relation to the Store property. In that settlement, it was agreed that the property be listed for sale .

As well, if these arrangements were at arms length, it is highly likely that David [Hopper] would have had some security on the store property to protect his involvement. While not evidence in this matter, the Court is aware that David [Hopper] contributed more to the Store property than his claim. Consequently, [the Store Lot] is probably worth more than David [Hopper’s] claim. It would seem appropriate that reasonable time be given for the sale of the Store property. Given the economy, I believe that two years from the consent to judgment by [Mr. and Mrs.

Tingley] to be appropriate and David [Hopper] would continue to earn legal interest on his judgment. Following the sale of the Store property any shortfall in the $350,000.00 plus legal interest should be divided equally between Michael [Tingley] and Stephen [Hopper]. Each would be responsible to David [Hopper] for their one-half of this amount plus one-half of the interest and the costs individually awarded. Michael [Tingley] also owes $20,000.00 to Stephen [Hopper] and he is entitled to a judgment in that amount. Once this amount is paid, [Mr. and Mrs.

Hopper] are to provide the appropriate deed, at their expense, to transfer [the Tingley Home Lot] to [Mr. and Mrs. Tingley] free of all encumbrances, save and except the judgment of David [Hopper]. David [Hopper] is required to release that portion of his collateral mortgage to the [Tingley Home Lot] at the time of this conveyance. Failure to execute the appropriate deed and release will result in the Clerk of the Court being authorized to execute the appropriate documentation. [paras. 50-52] [Emphasis added.] [ 23 ] The trial judge made the following orders:

a) The [Store Lot] is to continue to be listed with an approved real estate agent with the goal that the property be sold within two years from the date [October 15, 2009] of David Hopper obtaining judgment against Michael and Melissa Tingley; b) [Mr. and Mrs.] Hopper will have judgment against [Mr. and Mrs. Tingley] in the amount of $20,000.00 which will not bear interest until [Mr. and Mrs. Hopper] are in a position to provide a deed to the [Tingley Home Lot] free of encumbrances save and except the judgment of David Hopper in the amount of $350,000.00, plus costs in relation to [Mr. and Mrs. Tingley].

c) [Mr. and Mrs. Hopper], at their expense, are ordered to provide a proper deed of conveyance to [Mr. and Mrs. Tingley] to the [Tingley Home Lot], free of encumbrances save and except the judgment of David Hopper in the amount of $350,000.00 plus costs of $14,875.00 in relation to [Mr. and Mrs. Tingley].

d) Should any of the parties fail to execute the appropriate documentation, on application, the Clerk of the Court will be authorized to do so.

e) Because every party was both successful and unsuccessful, each party will bear their own costs. [para. 53] IV. Analysis and Decision [ 24 ] In the Tingley Decision, David Hopper alleges the trial judge erred “in law and/or mixed law and fact” in: (1) “restricting and limiting [his] ability to enforce” the two judgments he obtained in his action against Mr. and Mrs. Hopper and Mr. and Mrs. Tingley; (2) directing “how he is able to realize on those two judgments … with respect to what and when certain property of the Judgment Debtors can be seized”; (3) changing his two judgments against [Mr and Mrs.

Hopper and Mr. and Mrs. Tingley] because he was functus officio after granting the non-suit motion; and (4) misapprehending the evidence by finding: a. that the Tingley Home Lot would not be subject to his judgment until the convenience and video store property was sold and b. finding the Store Lot “was probably worth more than [his] judgments” . [ 25 ] Finally, David Hopper alleges the trial judge erred in law “by not awarding costs to [him] at trial following the granting of his motion for non-suit”. [ 26 ] David Hopper submits that the only allegations against him in the Tingley action “were of fraud”.

As a result of the trial judge’s finding that Mr. and Mrs. Tingley failed to “establish fraud”, his motion for non-suit was granted. As a consequence, he asserts, Mr. and Mrs. Tingley’s action against him was dismissed. Therefore, the trial judge, having performed his duty is functus officio and, thus, no longer had the jurisdiction to vary the terms of the Consent Order. [ 27 ] When David Hopper made his non-suit motion on January 19, 2010, following the completion of Mr. and Mrs. Tingley’s evidence in the Tingley’s action, the trial judge and David Hopper’s counsel had the following dialogue: MR.

TINGLEY: I think I pretty much made my … THE COURT: Yeah, okay. All right. Call your first witness. Plaintiff’s case is closed.

MR. GILLIS: At this time, my Lord, I would move for a nonsuit with respect to the plaintiff’s action. When one examines the claim, the claim made against my client is one based on fraud, which hasn’t been established or proven and the relief sought is some payment on a quantum meruit basis for unjust enrichment, and I don’t think that’s proven. If one looks at all the evidence in its totality – THE COURT: Well, it – just – just so you know where I’m coming from, I’ve heard enough evidence to know that there was construction done on the property that’s owned by your client. MR. GILLIS: My client has a mortgage.

THE COURT: Yeah, has the mortgage, but the whole family situation there … MR. GILLIS: With respect, then, on that – THE COURT: So I just say that up front as you make your motion, because I gather, once you make your motion, you’re not calling any evidence. MR. GILLIS: Yes, that would be true. And with respect to the dollar figure, I pressed the witnesses to establish, and the best- case scenario is $24,000 plus $8,500 plus $200. That’s all I’ve heard. But that would be my motion. THE COURT: All right. Thank you. I’ll take that under advisement – MR. GILLIS: Yes.

THE COURT: -- and give you a decision in due course. Are you calling any witnesses? [ 28 ] David Hopper did not call any further evidence. In the Tingley Decision, the trial judge noted that David Hopper in his action against Mr. and Mrs. Hopper and Mr. and Mrs. Tingley “did testify in that action which was settled as noted in paragraph 11 of these reasons” (para. 44). The settlement the trial judge referred to was with respect to the Consent Order ($350,000 plus costs of $14,875) which was “subject to the convenience and video rental store being listed for sale. [Mr. and Mrs.

Tingley’s] action would continue with respect to the Tingley Home. I believe it was understood that the Tingley home matter would not be subject to the judgment until this matter was finally determined and subject to the other sale and proceedings” (para. 11). [ 29 ] As noted, the trial judge limited the grant of David Hopper’s non-suit motion to Mr. and Mrs. Tingley’s failure to establish that David Hopper’s registration of the collateral mortgage was fraudulent. As is evident in the transcript excerpt at paragraph 27, the trial judge advised David Hopper’s counsel that Mr. and Mrs.

Tingley’s claims against him were not limited to fraud (see paragraph 11 of these reasons for the other claims). Moreover, the Consent Order entitled David Hopper, as a judgment creditor, to proceed to enforce his $350,000 judgment against Mr. and Mrs. Tingley in a manner consented to by his counsel; that is to say, by listing the property for sale with a real estate agent at a price of $450,000. [ 30 ] Given the limited scope of the successful non-suit motion, and given David Hopper’s involvement with Mr. and Mrs.

Tingley’s other claims, their action against him was neither dismissed when the non-suit motion was granted nor was the trial judge functus officio with respect to those other claims.

[31] In addition, David Hopper submits that the trial judge misapprehended the evidence by finding the TingleyHome Lot would not be subject to David Hopper’s judgment “until the convenience and video store property was sold” and by stating:“The Court is aware that David contributed more to the store property than his claim. Consequently, the store property is probably worthmore than David’s claim” (para. 50). [32] The trial judge did not unilaterally prescribe that the David Hopper Decision would not apply to the TingleyHome Lot until the Store Lot was sold.

He understood the sale was a condition of the settlement. In the Consent Order, David Hopper’scounsel agreed that such judgment would only be registered against the Store Lot. In both the Consent Order and the Tingley Decision,the trial judge stayed, in effect, the registration of David Hopper’s judgment against Mr. and Mrs. Tingley against the Tingley Home Lotwhile the Store Lot was listed for sale with a real estate firm for $450,000.

Further, both the Consent Order and the Stay Orderprescribed limitation periods with respect to David Hopper’s enforcement of his judgment creditor rights. [33] David Hopper contends the trial judge erred in finding the Store Lot “was probably worth more than” hisjudgment. The trial judge acknowledged in the Tingley Decision that his awareness was not based on evidence. At first, it would bereasonable to query why the Consent Order set a sale price of $450,000 when David Hopper’s judgment was for $350,000 and costsonly.

Perhaps, the source of the trial judge’s knowledge is found in David Hopper’s Pre-Trial Brief of September 30, 2009 where atparagraph 10 the following appears: “The total amount advanced by David Hopper to the Defendants (Mr. and Mrs. Hopper and Mr. andMrs. Tingley) was in excess of $600,000”. Thus, David Hopper cannot allege the trial judge erred when he used that information to crafthis decision, particularly when David Hopper must have thought such information was relevant. Moreover, Michael Tingley testified onOctober 14, 2009: “The store property’s appraised at $594,000”.

The Appraisal Report substantiating that value is an exhibit. [34] David Hopper submits that all his grounds of appeal allege the trial judge erred “in law and/or mixed law andfact” in the Tingley Decision. In this case, the Court is asked to review a trial judge’s exercise of judicial discretion. [35] In State Farm Mutual Automobile Insurance Co. v. Canada (Privacy Commissioner), 2009 NBCA 5, 341N.B.R. (2d) 1, this Court addressed the standard of review for questions of law involving a discretionary judicial decision.

Writing for aunanimous Court, Larlee, J.A. stated: The standard of review on a question of law is one of correctness (see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31(QL), 2002 SCC 33, at para. 8). In the case of a discretionary order, the standard of review is described in Beaverbrook CanadianFoundation v. Beaverbrook Art Gallery (2006), 302 N.B.R. (2d) 161, [2006] N.B.J.

No. 307 (QL), 2006 NBCA 75, at para. 4: [...] Like any other discretionary judicial decision, it may be interfered with on appeal only if it is founded upon an error of law, an errorin the application of the governing principles or a palpable and overriding error in the assessment of the evidence (see British Columbia(Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371, [2004] 2 W.W.R. 252; 313 N.R. 84; 189B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, at para. 43) or if it is unreasonable, in the sense that nothing in the record can justify it(see the Honourable R.P.

Kerans, Standards of Review Employed by Appellate Courts (Edmonton: Juriliber Limited, 1994) at pp. 36-37and Secretary of State for Education and Science v. Tameside Metropolitan Borough Council, [1977] A.C. 1014 (H.L.), Lord Diplock atp. 1064). [para. 8] [36] The David Hopper action and the Tingley’s action were heard together pursuant to Rule 6 of the Rules of Courtwhich provides for such a procedure:

6.01 Where Order May Be Made

(1) Where two or more proceedings are pending and it appears to the court that (

a) they have a question of law or fact in common, (

b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences, or (

c) for any other reason an order ought to be made under this rule, the court may order that (

d) the proceedings be consolidated, or tried or heard at the same time or one immediately after the other, or (

e) any of the proceedings be (

i) stayed until after the determination of any other of them […] 6.01 Cas où une ordonnance peut être rendue

(1) Lorsque plusieurs actions sont en cours et qu’il apparaît à la cour

a) qu’elles ont en commun une question de droit ou de fait,

b) que les mesures de redressement y réclamées proviennent de la même opération ou du même événement ou de la même série d’opérations ou d’événements, ou

c) qu’il est nécessaire, pour tout autre motif, de render une ordonnance en application de la présente règle, la cour peut ordonner

d) la fusion des instances, soit leur instruction ou audition simultanée ou consécutive, ou

e) que l’une de ces instances (

i) soit suspendue jusqu’à la résolution d’une des autres actions […] [ 37 ] With respect to the trials of two or more actions at the same time this Court in Hogan v. Doiron et al. , 2001 NBCA 97 , 243 N.B.R. (2d) 263 , stated per Drapeau, J.A. (now C.J.N.B.) as follows: […] An order for the trial together of multiple actions, unlike a consolidation order, does not result in their merger. Where, as here, two actions are to be tried at the same time pursuant to an order under Rule 6.01(1), each action maintains its distinct identity and requires the entry of a separate judgment. See W.B. Williston & R.J.

Rolls, The Law of Civil Procedure, vol. 1 (Toronto: Butterworths, 1970) at 411. [para. 17] [ 38 ] In this case, the David Hopper’s action and the Tingleys’ action were tried together. When the trials began on October 12, 2009, David Hopper had an April 28, 2008 registered judgment for $350,000 plus costs of $950 against Mr. and Mrs. Hopper.

On June 19, 2009, the trial judge granted the Stay Order concerning the Store Lot and the Tingley Home Lot until judgment in David Hopper’s action and the Tingley’s action “have been delivered by this Court or until further order of the Court”. [ 39 ] Following three days of testimony, on October 15, 2009, the trial judge granted the Consent Order whereby David Hopper obtained a judgment of $350,000 plus costs of $14,875 against Mr. and Mrs. Tingley. Registration of the Consent Order on October 15, 2009 was against the Store Lot only.

Further, the trial judge ordered that the Store Lot property be listed for sale at $450,000, $100,000 more than the principal amount of the judgment. The Consent Order further provided that if, by December 14, 2009,

the Store Lot was not subject to a binding agreement of purchase and sale “David Hopper may pursue whatever remedies he may deem necessary to satisfy the judgment”. There was no binding agreement of purchase and sale by December 14, 2009. [ 40 ] The trial of the Tingley’s action adjourned from October 15, 2009 to January 19, 2010 at which time the Tingley’s trial concluded. Subsequently, the trial judge rendered the Tingley Decision on February 19, 2010. The David Hopper Decision comprised the following with respect to David Hopper: (1) his judgment against Mr. and Mrs.

Hopper, registered April 28, 2008; (2) the June 19, 2009 Stay Order; and (3) the Consent Order registered on October 15, 2009, concerning his judgment against Mr. and Mrs. Tingley. [ 41 ] Rule 6.01(1)(e)(

i) of the Rules of Court provides that with respect to the trials of two or more actions the “Court may order that … (

e) any of the proceedings be (

i) stayed until after the determination of any other of them …”. In both David Hopper’s action and the Tingley’s action, the trial judge stayed a Sheriff’s sale of the Store Lot and the Tingley Home Lot until judgments “have been delivered by this Court or until further order of the Court”. The Consent Order provided for an expiry of the Re/Max listing on December 14, 2009. [ 42 ] On October 15, 2009, the trial of the Tingley’s action was not complete and, obviously, a judgment had not been delivered by the Court concerning among other things, who rightfully owned the Tingley Home Lot.

As such, the question arises as to whether the provisions in the Consent Order of October 15, 2009, are a “further order of the Court” that lifts the stay imposed in the Stay Order. That is an unresolved question in the David Hopper Decision, which has not been appealed. [ 43 ] As noted earlier, where two actions are tried at the same time together “each action maintains its distinct identity and requires the entry of a separate judgment” ( see Hogan v. Doiron ). The same is required where there is an appeal of either or both judgments. In fact, the Hogan v.

Doiron decision sets out the relevant forms for the appropriate style of cause at trial and on appeal where two or more cases are heard together. [ 44 ] This case, however, is not an appeal of the David Hopper Decision. This is an appeal of the Tingley Decision. Thus we do not have jurisdiction to determine whether or not the Consent Order discharged the stay of the Sheriff’s sale of the Tingley Home Lot and the Store Lot. We do, however, have the jurisdiction to determine whether the Tingley Decision operates to vary the stay in accordance with its terms.

Recall, the Stay Order provided that the stay continued until judgment in the Tingley’s action and David Hopper’s action “have been delivered by this Court or until further order of this Court”. [ 45 ] In the Tingley Decision, it is obvious the trial judge was attempting to provide a global solution to all the outstanding issues between the parties in both actions by continuing to provide a process for a $450,000 sale of the Store Lot, which if successful, would presumably result in the settlement of all the financial obligations of the judgment debtors.

Since David Hopper has elected to appeal only the Tingley Decision and not the David Hopper Decision, we do not have the jurisdiction to reconcile the three Orders that comprise the David Hopper Decision ( see Hogan v. Doiron ). [ 46 ] In the David Hopper Decision, there appears to be incompatibility between the Consent and the Stay Orders, both signed by the trial judge. In the Tingley Decision, the trial judge explained he granted the Stay Order until the Tingley’s action was determined by the Court.

Further, he understood the underlying basis for the settlement evidenced by the Consent Order was that the Tingley’s action: “would not be subject to the judgment [the Consent Order] until this matter was finally determined and subject to the other sale and proceedings” (para. 11).

Neither the Stay Order nor the Consent Order makes reference to the other. [ 47 ] In addition to the incompatibility, there is also an inconsistency between the limitation to the time of the Re/Max listing, December 14, 2009, in the Consent Order and the extended listing to October 14, 2011, with an approved real estate agent as prescribed in the Tingley Decision, thus prolonging the Stay Order. [ 48 ] David Hopper submits that the trial judge’s understanding of the underlying basis for the settlement evidenced by the Consent Order “is contrary to the intention of the parties as demonstrated before and during the trial.

There was no evidence adduced at trial to support this statement”. During the trial of the Tingley’s action on October 14, 2009, the trial judge, Mr. Tingley, counsel for David Hopper and counsel for Mr. and Mrs. Hopper discussed how there might be a way to reach some agreement between Mr. Tingley and counsel as to how the Store Lot can be disposed of and at the same time “protect” the Tingley Home Lot. The trial judge agreed to see if another Queen’s Bench Justice was available to do a settlement conference. [ 49 ] On the resumption of the trial the next day, October 15, 2009, Mr.

Gillis, David Hopper’s counsel, advised the Court as follows:

MR. GILLIS: We had a discussion with Chief Justice Smith yesterday and I’ve drafted a consent order that I’ve given to Mr. and Mrs. Tingley with respect to a judgment with certain terms and I’ve gone over it with them, and I don’t know if they have some questions of the Court, but that may resolve the first action. Mr. Tingley had questions but he and his wife agreed to the order’s terms. Thus, the Consent Order was registered the same day.

Nevertheless, the trial judge’s comments regarding why he granted the Stay Order went unchallenged. [ 50 ] Reading the Tingley Decision in the context of the Consent Order and the Stay Order, I am satisfied it (the Tingley Decision) merely orders the continuation of the Stay Order to October 14, 2011, two years from the date of the Consent Order. I would not conclude it limits David Hopper’s judgment creditor rights as he contends. [ 51 ] Rule 6.01(1)(e)(

i) permits a court to order, when two or more proceedings are heard together, that any of the proceedings may be stayed until after the determination of any other of them. Here, the Stay Order initially stayed the Search and Seizure Order until the delivery of judgments in the David Hopper action and the Tingley’s action were delivered “or until further Order of the Court”. The Consent Order made no reference to the Stay Order. The trial judge explained why he granted the original stay in the David Hopper action.

In the Tingley Decision, which was subsequent to the David Hopper Decision, he made a further order of the Court staying the Search and Seizure Order until a certain date, October 14, 2011. He made no reversible error in extending the stay. Moreover, such extension in the context of the Tingley Decision complies with Rule 1.03 of the Rules of Court , namely: it “secure[s] the just, least expensive and most expeditious determination of every proceeding on its merits”. [ 52 ] I have not been persuaded by David Hopper that the trial judge made any errors of law in the Tingley Decision.

He applied the governing principles of law, made no palpable and overriding error in his assessment of the evidence, and the record justifies his exercise of judicial discretion. [ 53 ] To summarize, the trial judge:

a) had jurisdiction to continue the Stay Order for the reasons he articulated in the Tingley Decision, thus limiting David Hopper’s exercise of his creditor’s rights to October 14, 2011;

b) was not functus officio after granting David Hopper’s non-suit motion because it was limited to Mr. and Mrs. Tingley’s fraud allegation only, and did not extend to their allegation that his registration of the collateral mortgage was, as the trial judge found, “not proper” and, thus, must be removed from its registration against the Tingley Home Lot;

c) did not find that “The Tingley Home Lot would not be subject to his judgment” until the Store Lot was sold, rather he stayed the seizure and sale of it until at least October 14, 2011. Furthermore, he did not misapprehend the evidence by finding the Store Lot “was probably worth more than [his] judgments”; rather, David Hopper advised the trial judge in his pre-trial brief that he had advanced more than $600,000 to Mr. and Mrs. Hopper and Mr. and Mrs. Tingley. Moreover, Mr. Tingley testified the Store Lot was appraised at $594,000 and the appraisal report was an exhibit; and

d) awarded David Hopper costs in his action (see paragraph 1 of these reasons). While in the Tingley’s action he was successful in his non-suit motion to a limited extent, he was not successful in maintaining that registering the collateral mortgage against the Tingley Home Lot was proper. Thus, the trial judge did not err in failing to award David Hopper costs in the Tingley Decision where he had mixed success. V. Conclusion and Disposition

[ 54 ] For the foregoing reasons, I would dismiss David Hopper’s appeal and make no order for costs. ____________________________________ WALLACE S. TURNBULL, J.A. WE CONCUR: ___________________________________ M.E.L. LARLEE, J.A. ____________________________________ B. RICHARD BELL, J.A.