2015 NBCA 45, 2015 NBCA 45

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 88-14-CA MARIO CHARLEBOIS APPELLANT MARIO CHARLEBOIS APPELANT - and - - et - TOWN OF RIVERVIEW RESPONDENT TOWN OF RIVERVIEW INTIMÉE - and - - et - ATTORNEY GENERAL OF NEW BRUNSWICK RESPONDENT Procureur Général du Nouveau Brunswick INTIMÉ Charlebois v. Town of Riverview and Attorney General of New Brunswick, 2015 NBCA 45 Charlebois c.

Town of Riverview et Procureur Général du Nouveau-Brunswick, 2015 NBCA 45 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Quigg CORAM : l’honorable juge en chef Drapeau l’honorable juge Larlee l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: July 16, 2014 Appel d’une décision de la Cour du Banc de la Reine : le 16 juillet 2014 History of Case: Historique de la cause : Decision under appeal: 2014 NBQB 154 Décision frappée d’appel : 2014 NBBR 154

Preliminary or incidental proceedings: Court of Appeal: [2015] N.B.J. No. 66 [2014] N.B.J. No. 288 [2014] N.B.J.

No. 29 Procédures préliminaires ou accessoires : Cour d’appel : [2015] A.N.-B. n o 66 [2014] A.N.-B. n o 288 [2014] A.N.-B. n o 29 Appeal heard and judgment rendered: May 26, 2015 Appel entendu et jugement rendu : le 26 mai 2015 Reasons delivered: July 16, 2015 Motifs déposés : le 16 juillet 2015 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau 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: Mario Charlebois appeared in person For the respondent Town of Riverview: Benoit Arsenault For the respondent Attorney General of New Brunswick: André Richard, Q.C.

Avocats à l’audience : Mario Charlebois a comparu en personne Pour l’intimée Town of Riverview : Benoit Arsenault Pour l’intimé Procureur Général du Nouveau- Brunswick : André Richard c.r. THE COURT The appeal is dismissed, with costs. LA COUR L’appel est rejeté avec dépens. English version of the decision of the Court delivered by DRAPEAU, C.J.N.B.

I. Introduction [ 1 ] This is an appeal, with leave, from a July 16, 2014 interlocutory decision dismissing a motion by the appellant in the context of an application by the Town of Riverview for an order requiring he cease certain property development work.

Riverview contends the work was undertaken without the permits required under its zoning and building by-laws. [ 2 ] The appellant intended to contest the application on grounds rooted in his understanding of Riverview’s linguistic obligations under the Canadian Charter of Rights and Freedoms and the Act Recognizing the Equality of the Two Official Linguistic Communities , R.S.N.B. 2011, c. 198 .

However, in a decision dated January 13, 2014, a judge of the Court of Queen’s Bench (“the judge”) struck from the appellant’s Amended Notice of Motion his application for a declaration [TRANSLATION] “that, as regards all municipalities, the Official Languages Act contravenes the Charter and the Act Recognizing the Equality of the Two Official Linguistic Communities .” Richard, J.A. dismissed the application for leave to appeal against this decision. [ 3 ] In subsequent proceedings before the judge, the appellant sought, once again, to invoke the Charter in support of his contention that, despite the exception provided by s. 35(1) of the Official Languages Act , S.N.B. 2002, c.

O-0.5, all New Brunswick municipalities are required to adopt and publish their by-laws in both official languages, and by-laws adopted and published in only one official language, like Riverview’s, were invalid. The judge reminded him that, given her decision of January 13, 2014, this question was not before the court. She went on to declare Riverview “need not provide its building and zoning by-laws in both official languages by virtue of s. 35(1) of the Official Languages Act .” In the result, the appellant’s motion was dismissed. [ 4 ] Bell, J.A. granted leave to appeal from that dismissal.

However, he confined the debate on appeal to the appellant’s application for a declaration that Riverview’s zoning and building by-laws are invalid “and/or” that Riverview must adopt and publish those by-laws in both official languages within 30 days of the declaratory judgment. [ 5 ] After hearing the appellant, we dismissed the appeal from the bench, with reasons to follow. Here are those reasons. II. Background [ 6 ] The appellant is subject to an order under Rule 76.1 of the Rules of Court (“Vexatious Proceedings”) since July 14, 2010.

The order prohibits him from continuing a proceeding or commencing any further proceedings except with leave of a judge of the Court of Queen’s Bench. [ 7 ] On May 13, 2013, Riverview passed a resolution authorizing legal proceedings to address the appellant’s failure to obtain the permits required under its building and zoning by-laws for work on a property located at 101 Hillsborough Road.

On July 12, 2013, Riverview filed an application (Form 16D of the Rules of Court ) seeking an order enjoining the appellant to cease the work in question. [ 8 ] The appellant subsequently sought various forms of relief by means of an Amended Notice of Motion dated October 24, 2013.

In particular, he requested an order releasing him from the constraints arising from his status as a “vexatious litigant” and an order declaring [TRANSLATION] “that, as regards all municipalities, […] the Official Languages Act contravenes the Canadian Charter of Rights and Freedoms and the Act Recognizing the Equality of the Two Official Linguistic Communities .” [ 9 ]

Section 35 is one of the provisions of the Official Languages Act whose validity is challenged in the Amended Notice of Motion. The provision creates an exception to the requirement that municipalities adopt and publish their by- laws in both official languages. It reads as follows:

(1) A municipality whose official language minority population represents at least 20% of its total population is required to adopt and publish its by-laws in both official languages. 35

(2) A city is required to adopt and publish its by-laws in both official languages irrespective of the percentage required under subsection (1). 35

(3) A municipality or city to which subsection (1) or (2) applies that adopts a new by-law or amends an existing by-law after December 31, 2002, shall do so in both official languages. 35

(4) Except in the case of a by-law referred to in subsection (3), a municipality or city to which subsection (1) or (2) applies, other than Moncton, shall adopt and publish its by-laws in both official languages on or before December 31, 2005. 35 (5) Subsection (3) applies, with the necessary modifications, to the minutes of council proceedings. 35

(1) Une municipalité dont la population de langue officielle minoritaire atteint au moins 20 % de la population totale est tenue d’adopter et de publier ses arrêtés dans les deux langues officielles. 35

(2) Les cités sont également tenues d’adopter et de publier leurs arrêtés dans les deux langues officielles sans égard au pourcentage prévu au paragraphe (1). 35

(3) Tout nouvel arrêté ou toute modification à un arrêté existant, adopté après le 31 décembre 2002 par une municipalité ou une cité auxquelles les paragraphes (1) et (2) s’appliquent, doit être adopté et publié dans les deux langues officielles. 35

(4) Sauf en ce qui concerne un arrêté visé au paragraphe (3), les municipalités et les cités auxquelles s’appliquent les paragraphes (1) et (2), autre que Moncton, doivent adopter et publier leurs arrêtés dans les deux langues officielles au plus tard le 31 décembre 2005. 35

(5) Le paragraphe (3) s’applique, avec les modifications nécessaires, aux procès- verbaux des séances du conseil municipal; A. The initial decision of the Court of Queen’s Bench judge [ 10 ] On January 13, 2014, the judge rendered a decision the purpose of which was evidently to allow the appellant to oppose the application on the merits without paving the way for constitutional or “quasi-constitutional” challenges ( see Town of Riverview v. Charlebois et al ., 2014 NBQB 011 ).

Indeed, the judge determined that some of the remedies sought by the appellant in his Amended Notice of Motion were unrelated to Riverview’s application and she struck them out. Significantly, those remedies included the following: [TRANSLATION] 8.

That the Court make a declaration that, as regards all municipalities, the Official Languages Act contravenes the Canadian Charter of Rights and Freedoms and the Act Recognizing the Equality of the Two Official Linguistic Communities . [para. 25] It bears underscoring that the decision strikes out the application for a declaration that the Official Languages Act is invalid based on the Charter and the Act Recognizing the Equality of the Two Official Linguistic Communities . [ 11 ] Richard, J.A. subsequently dismissed the appellant’s application for leave to appeal that decision: Moncton (City) v.

Charlebois , [2014] N.B.J. No. 28 (C.A.) (QL) . [ 12 ] Having regard to the provisions of Rule 62 (“Civil Appeals to the Court of Appeal”) and the

jurisdictional framework prescribed by the Rules of Court , it is beyond debate that the present appeal cannot impugn the decision of January 13, 2014, since the application for leave to appeal from that decision was dismissed. I will briefly revisit this question in short order. B. The judge’s second decision, the decision under appeal [ 13 ] The appeal focuses on a single aspect of a subsequent decision by the judge ( see Town of Riverview v. Charlebois , 2014 NBQB 154 , 421 N.B.R. (2d) 292 ).

The decision in question, which is dated July 16, 2014, deals with the appellant’s motion for an order declaring: [TRANSLATION] 1. [t]hat Form 16D of the New Brunswick Rules of Court [is invalid and of no force or effect] […]; 2. [t]hat the Town of Riverview’s resolution dated May 13, 2013, concerning the property [is invalid] […]; […] 4. [t]hat any order issued by Andrew Newell [“Inspection-Enforcement Officer”] concerning the property situated at 101 Hillsborough Road (PIN 00648824) [is invalid] […]; 5. [t]hat the Town of Riverview Building By-law R300-10-1 and Zoning By-law 300-5 [are invalid] and/or that the Town of Riverview proceed with the reading and adoption [of these by-laws] in both official languages within 30 days of the issuance of the order. [para. 4] [ 14 ] In her July 16, 2014 decision, the judge stresses that the question of the constitutionality of s. 35 or any other provision of the Official Languages Act is not in issue: On January 13 th , 2014, I issued a decision striking several paragraphs from Mr.

Charlebois’ Amended Notice of Motion on the grounds that they were not pertinent to the main action which is the Notice of Application filed by the Town of Riverview. The paragraphs and requested relief struck from the Amended Notice of Motion were the following: [TRANSLATION] 3. That the August 27, 2007 resolution of the Town of Riverview appointing Andrew Newell to the Office of “Inspection-Enforcement Officer” be declared invalid. 6.

That the Town of Riverview be ordered to communicate all of its services in the official language chosen by the respondent and/or the public in equal fashion to the Francophone community and the Anglophone community within 200 days following the date of this order and to provide an update to the court every 30 days following this order. 7. That paragraph 14(1) of the Police Act be declared invalid and of no force and effect. 8.

That the Court make a declaration to the effect that, insofar as all municipalities are concerned, the Official Languages Act contravenes the Canadian Charter of Rights and Freedoms and the Act Recognizing the Equality of the Two Official Linguistic Communities .

9. That Mario Charlebois is no longer subject to Rule 76.1 of the Rules of Court. 10. That the application of the Town of Riverview be dismissed with costs. It is my understanding that Mr. Charlebois sought leave to appeal my decision of January 13th, 2014 and this request was denied by the Court of Appeal on February 18th, 2014. I set out this procedural history in the present matter as it is important to highlight what is notbefore the Court in the present matter. As will become clear in the analysis, what Mr. Charlebois is in reality hoping to obtain by way ofthis preliminary motion is a declaration that [Section] 35 of the New Brunswick Official Languages Act, S.N.B. 2002,

chapter O-0.5,[violates] Sections 16(2) and 18(2) of the Canadian Charter of Rights and Freedoms. This question is not before the Court. The only relief in the amended motion which sought an order pursuant to the Charter was struck as a result of the January 13th, 2014 decision. […] In the present motion, Mr. Charlebois is seeking a declaration to answer the question that remained unanswered after Charlebois v.Moncton and Charlebois v. Saint John. During the course of his arguments it became clear that what Mr.

Charlebois is actually seekingin the present matter is for this Court to adjudicate the question as to whether or not [section] 35 of New Brunswick’s Official LanguagesAct [violates] the Canadian Charter of Rights and Freedoms. While Mr. Charlebois raises an interesting question, its resolution will haveto wait for another day. This question is not currently before this Court. [paras. 5-6 and 16] [Emphasis added.] [15] The judge dismissed the appellant’s motion after making the following findings:

a) The Town of Riverview appropriately used Form 16D in filing the present Notice of Application and Form 16D is a valid form to usefor the filing of such an originating process;

b) There are no grounds upon which to declare the Town of Riverview’s resolution dated May 13th, 2013 invalid;

c) There are no grounds upon which to find the orders issued by Andrew Newell invalid; and

d) The Town of Riverview need not provide its building and zoning by-laws in both official languages by virtue of section 35(1) of theOfficial Languages Act. [para. 37] C. Leave to appeal [16] Bell, J.A. allowed the appellant’s application for leave to appeal the dismissal of his motionpursuant to the July 16, 2014 decision: Riverview (Town) v. Charlebois, [2014] N.B.J. No. 288 (C.A.) (QL). However, he made a pointof carefully recounting the underlying events before narrowing the leave to appeal to a single issue: 8.

In response to legal proceedings brought by the Town of Riverview against him for failure to conform to a municipal by-lawenacted in English only, Mr. Charlebois filed a motion seeking various remedies. As a result of the hearing of a motion before the Courtof Queen’s Bench (Riverview (Town) v. Charlebois, 2014 NBBR 154 , 421 N.B.R. (2d) 292) and the dismissal of a motion forleave to appeal (Charlebois v. Riverview (Town), [2014] N.B.J. No. 28 (C.A.) (QL)), the remedies sought have been narrowed to thefollowing:

[TRANSLATION] 1) That Form 16D of the New Brunswick Rules of Court be declared invalid and of no force or effect for use by the Town of Riverview; 2) That the Town of Riverview resolution dated May 13, 2013, concerning the property be declared invalid; 4) That any order issued by Andrew Newell concerning the property situated at 101 Hillsborough Road (PIN 00648824) be declared invalid; 5) That the Town of Riverview Building By-law R300-10-1 and Zoning By-law 300-5 be declared invalid and/or that the Town of Riverview proceed with the reading and adoption of Building By-law R300-10-1 and Zoning By-law 300-5 in both official languages within 30 days of the issuance of the order. 9 In the grounds to be argued and the statutory provisions to be relied upon in Form 37A, Mr.

Charlebois set out the following: [ TRANSLATION ] The Town of Riverview is an institution within the meaning of subsection 20(2) of the Canadian Charter of Rights and Freedoms and as such is subject to subsections 16(2) , 16.1(1) , 16.1(2) , 18(2) , 19(2) , and 24(1) of the Charter […] [Underlining in original text.] Notwithstanding clear caselaw to the effect that municipalities are provincial institutions under the Charter , our legislators have chosen to adopt legislation that violates subsection 16.1(2) of the Charter [...] [Underlining in original text.] In order to justify its violation of the provisions of the Charter , the Town of Riverview relies on the provisions of the Official Languages Act which exempt the Town of Riverview from having to provide its services in both official languages and limit the services offered by municipalities in both official languages.

Provincial legislation allows the Town of Riverview to violate subsections 16(1), 16(2), 16(3), 16.1(1), 16.1(2), 18(2), 19(2) and 20(2) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , and

An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick . Consequently, relying on subsection 24(1) of the Charter , Mr. Charlebois asks the Court to grant him the remedy it deems just and appropriate under the circumstances and to issue the orders requested, in view of the fact that our legislators have failed to ensure that their institutions take the necessary steps to guarantee the long overdue equality of both linguistic communities. 10.

In his notice to the Attorney General of New Brunswick and to the Attorney General of Canada pursuant to the Judicature Act , R.S.N.B. 1973, c. J-2, Mr. Charlebois stated the following, among other things: [ TRANSLATION ] 1) That subsection 35(1) of the Official Languages Act be declared invalid and of no force and effect given that it violates subsections 16(2) , 16.1(1) , 16.1(2) , 18(2) and 19(2) of the Canadian Charter of Rights and Freedoms and

An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick . Mr. Charlebois submits that subsection 35(1) does not recognize the Town of Riverview as an institution under the Official Languages Act . 2) That the by-laws and resolutions of the Town of Riverview be declared invalid and of no force and effect given that they violate subsections 16(2) , 16.1(1) , 16.1(2) , 18(2) and 19(2) of the Canadian Charter of Rights and Freedoms and

An Act Recognizing the Equality of the Two Official Linguistic Communities in New Brunswick .

11. The four orders sought in paragraph 8 which had not been previously struck were nonetheless dismissed by the trial judge. I grantleave to appeal the dismissal of the following order sought: [TRANSLATION] That the Town of Riverview Building By-law R300-10-1 and Zoning By-law 300-5 be declared invalid and/or that the Town of Riverviewproceed with the reading and adoption of Building By-law R300-10-1 and Zoning By-law 300-5 in both official languages within 30 daysof the issuance of the order. [Emphasis added.] 12.

I do not grant leave to appeal the decision of the trial judge to dismiss the other three orders sought by Mr. Charlebois, namely,numbers 1, 2 and 4. III. Analysis and Decision [17] I begin with a statement of the basic principles that inform the exercise of judicial power inconnection with an application for leave to appeal. First, the decision of a judge to dismiss an application for leave to appeal may not beset aside by another judge or the Court of Appeal (see Rule 62.20.03).

Second, the observations and findings of the judge who grantsleave are not binding on his or her colleagues, or the panel hearing the appeal. The same is true of all observations and findings made bythe judge hearing the application for leave, irrespective of the subject matter, including the merits of the appeal. Second, the judgehearing an application for leave to appeal cannot create a right of appeal where none exists. In other words, leave to appeal cannot begranted from a decision that is not appealable.

Finally, the leave-granting decision cannot limit the powers of the panel hearing theappeal: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R 633, at para. 122; and Tamil Co-operative Homes Inc.v. Arulappah, (ON CA), [2000] O.J. No. 3372 (C.A.) (QL), at para. 32. [18] Bell, J.A. was charged with the determination of the application for leave to appeal from thejudge’s second decision, namely the one issued on July 16, 2014.

He simply did not have the requisite jurisdiction: (1) to set aside thedecision of his colleague, Richard, J.A., to dismiss the application for leave to appeal from the judge’s first decision, the one datedJanuary 13, 2014; or (2) to reverse the latter decision. Recall that the last-mentioned decision struck out the appellant’s application forthe following relief: [TRANSLATION] 8. That the Court make a declaration that, as regards all municipalities, the Official Languages Act contravenes the CanadianCharter of Rights and Freedoms and the Act Recognizing the Equality of the Two Official Linguistic Communities.

In the text that follows, the expressions “non-constitutional reason” and “non-constitutional ground” refer to a reason or ground, as thecase may be, other than those steeped in the provisions of the Act Recognizing the Equality of the Two Official Linguistic Communities. [19] In her reasons for the decision of July 16, 2014, which is the decision under appeal, the judgepointed out, in pellucid terms, that the question of the constitutionality of the provisions of the Official Languages Act was not before herfor the simple reason that “[t]he only relief in the amended motion which sought an order pursuant to the Charter was struck as a result of the January 13th, 2014 decision” (para. 6).

The same is true of any invalidity-seeking application based on the Act Recognizing theEquality of the Two Official Linguistic Communities.

Accordingly, the judge dealt only with outstanding issues, such as the validity ofRiverview’s zoning and building by-laws and its obligations under the Official Languages Act relative to their adoption and publication,without bringing into play the Charter or the Act Recognizing the Equality of the Two Official Linguistic Communities. [20] That being so, one is led inexorably to the conclusion that the appeal does not take issue withthe validity of s. 35(1) or any other provision of the Official Languages Act.

It follows that the only pertinent questions at this stage ofthe proceeding are the following: (1) are there any non-constitutional reasons to invalidate Riverview’s zoning and building by-lawsand/or to require it to adopt and publish those by-laws in both official languages?; and (2) if so, what are those reasons and were theyraised in first instance and on appeal in accordance with the Rules of Court? The answer to the second question suffices to dispose of the

appeal. [21] As the Court indicated in Smith v. Human Rights Commission (N.B.) et al. (1999), (NB CA), 217 N.B.R. (2d) 336, [1999] N.B.J. No. 392 (C.A.) (QL), at para. 19, leave to appeal refused [1999] S.C.C.A. No. 543(QL), experience has shown “that respect for the jurisdictional framework created by the Rules of Court and compliance with itsprocedural dictates serve the best interests of justice.” Adherence to the Rules of Court brings helpful clarity to the issues, and “[f]ocusedand insightful decisions invariably follow.

The end product is better justice for all.” Needless to say, parties are not at liberty tounilaterally ignore the Rules of Court: Tower v. Foulkes, 2015 NBCA 29, [2015] N.B.J. No. 104 (QL), at para. 55. Correlatively, seeRule 2.01 (“The Court Dispensing with Compliance”); Tibbetts v. Newman, 2005 NBCA 37, 283 N.B.R. (2d) 63, at para. 12, per Ryan,J.A.; The Estate of Caroline J. Higgins v. Arseneau, 2014 NBCA 65, 425 N.B.R. (2d) 109, at para. 41; and Trifidus Inc. v.

SamgoInnovations Inc. et al., 2011 NBCA 59, 375 N.B.R. (2d) 141, per Quigg, J.A. on behalf of the Court. [22] The Amended Notice of Motion does not adumbrate any non-constitutional grounds that mightarguably justify the relief for which leave to appeal was granted. If such grounds exist, Rule 37.03(

b) of the Rules of Court obligated theappellant to set them out in his Amended Notice of Motion. He did not. That failure may be explained by the appellant’s determination toassert only Charter-based grounds. In any event, at the hearing in the court below, the appellant did not make any non-constitutionalsubmissions in support of the relief targeted by his appeal. It is therefore not surprising that the judge did not focus her analysis on thesubject. [23] Moreover, in his Notice of Appeal, the appellant persists in asserting only Charter-basedgrounds.

Indeed, the Notice of Appeal does not raise any non-constitutional grounds in support of the relief pursued at this stage, and theappellant did not seek leave to amend his Notice of Appeal.

Consequently, he cannot rely on a non-constitutional ground to justify therelief sought: Rule 62.09(2). [24] All things considered, the conclusion that the appeal lacks merit is insuperable. [25] It is for these reasons that I added my voice to my colleagues’ in dismissing the appeal from thebench. [26] In my view, the Town of Riverview is entitled to costs in this Court in the amount of $1,000.However, costs cannot be awarded to the Crown: s. 22(3) of the Judicature Act, R.S.N.B. 1973, c. J-2. ____________________________________ J.

Ernest Drapeau, Juge en chef du Nouveau-Brunswick NOUS SOUSCRIVONS À L’AVIS ____________________________________ M.E.L. Larlee, j.c.a. ____________________________________ Kathleen A. Quigg, j.c.a.