Bank of Montreal v LeClair, 2020 MBCA 56

Citation: Bank of Montreal v LeClair, 2020 MBCA 56 Date: 20200527 Docket: AI19-30-09316 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : ) L. L. LeClair ) on her own behalf ) ) T. J.

Webber BANK OF MONTREAL ) for the Respondent ) (Applicant) Respondent ) Appeal heard and ) Decision pronounced: - and - ) February 24, 2020 ) LUANNE LORRAINE LECLAIR ) Written reasons: ) February 28, 2020 (Respondent) Appellant ) ) Motion under Court of ) Appeal Rule 46.2 ) ) Decision pronounced : ) May 27, 2020 per curiam [ 1 ] The respondent seeks a rehearing of her appeal pursuant to r 46.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R (the CA Rules ). [ 2 ] The Bank of Montreal (BMO) brought a motion for vacant possession of the property upon which the respondent was residing (the property).

After the motion was granted, the respondent brought a motion to set aside or vary the order for vacant possession. The motion to set aside or vary the order was dismissed.

The respondent’s appeal of the order dismissing the motion to set aside or vary the order for vacant possession was also dismissed ( see 2020 MBCA 27 ) . [ 3 ] Rule 46.2 of the CA Rules provides for a rehearing of an appeal as follows: Rehearing 46.2(1) There shall be no rehearing of an appeal except by order of the court or at the instance of the court. 46.2(2) A rehearing of an appeal may be ordered before the certificate of decision has been entered. 46.2(3) A motion requesting a rehearing shall be in writing stating the grounds for the motion, supported by a memorandum of argument. 46.2(4) If the reasons for judgment have been delivered, the motion requesting a rehearing under subrule (3) shall be made within 30 days after the reasons for judgment have been delivered, or such further time as the court may order, but in any event before the certificate of decision has been entered.

. . . 46.2(9) There shall be no oral argument on the motion requesting a rehearing unless by direction of the court. . . . [ 4 ] As explained by Hamilton JA in Rémillard v Rémillard , 2015 MBCA 42 , relying on Willman v Ducks Unlimited (Canada) , 2005 MBCA 13 , a rehearing of an appeal is to be granted only in exceptional circumstances, where the interests of justice manifestly compel such a course of action ( see Rémillard at para 8 ).

Exceptional circumstances warranting a rehearing include (at para 9): 1) there is a patent error on a material point on the face of the reasons; 2) the appeal was decided on a point of law that counsel had no opportunity to address, and which point could not have reasonably been foreseen and dealt with at the hearing; or 3) the court has clearly overlooked or misapprehended the evidence or the law in a significant respect and there is a consequential serious risk of miscarriage of justice. [ 5 ] The respondent’s grounds for the motion for a rehearing may be summarised as follows: 1.

There is no evidence of a contract for a mortgage for the property. 2. The property was never in default and BMO misled the Court when it asserted this fact in its motion brief and affidavits. 3. In finding that the property was in default, the judge relied on facts not in evidence. 4. The order for vacant possession was made without “written examinations for discovery”. 5. The respondent was not provided with notice that the hearing scheduled for September 7, 2018 was to determine vacant possession of the property.

Therefore, the proceedings lacked “due process” and the respondent was not given a full opportunity to present her position at the hearing. 6. There is no evidence of any written agreement establishing that BMO had retained counsel. 7. The respondent did not appeal the order granting BMO vacant possession of the property due to a lack of knowledge. 8.

The motion judge made errors of fact and law when he dismissed the respondent’s motion to vary or set aside the order for vacant possession. [ 6 ] The respondent asserts that this Court relied on facts not in evidence when it stated that the mortgage “was, and remains, in default” (at para 1); that it aided and abetted the fraud that was committed by the judge when the order for vacant possession was made; and that it lacked judicial independence.

She further asserts that this Court’s decision, along with the decisions of the judges in the Court below, are so clearly wrong as to amount to an injustice and miscarriage of justice, and that the judgments are void as a result. She contends that she has lawful title to the property and seeks a variety of remedies, including an order to restore the property to her. [ 7 ] BMO argues, firstly, that the respondent’s motion for a rehearing was filed outside of the 30 days permitted by the CA Rules and, alternatively, that none of the criteria from Rémillard have been met.

Accordingly, it seeks to have the motion for a rehearing dismissed. [ 8 ] The respondent’s materials were filed on a Monday, 31 days after the reasons for judgment were delivered. When a filing deadline falls on a Sunday, the document may be filed on the next day that is not a holiday (see section 36(1) of The Court of Appeal Act , CCSM c C240 ; and r 3.01 of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 ).

However, as I will explain, the respondent has not met the heavy burden of establishing exceptional circumstances that would justify a rehearing of the appeal ( see Sydor v Keough , 2020 MBCA 20 at para 2 ). [ 9 ] In our reasons for dismissing the appeal, we noted that the order for vacant possession had not been appealed.

Accordingly, this Court did not have jurisdiction to revisit the respondent’s assertion that she has lawful title to the property or the judge’s finding that she defaulted on her mortgage. [ 10 ] Moreover, we have not been persuaded that there is any obvious error on a material point, that the appeal was decided on a point of law that was not addressed by the parties, or that this Court has clearly overlooked or misapprehended the evidence or the law resulting in a miscarriage of justice.

For the most part, the respondent seeks to revisit the judge’s order for vacant possession and re- argue the appeal of the motion judge’s decision dismissing her motion to set aside or vary. She has not demonstrated any error that

would amount to exceptional circumstances warranting a rehearing of the appeal. [ 11 ] In the result, the respondent’s motion for a rehearing is dismissed with costs in favour of BMO in accordance with the applicable tariff. CJA JA JA