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CIVIL PROCEDURE - Trials - Conduct of

Tuesday, May 21, 2019 @ 9:18 AM  


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Appeal by the tenants from a decision of an application judge granting the landlord vacant possession. The appellants were self-represented at the application and argued they were denied procedural fairness. The respondents commenced an action against the appellants for damages for trespass and vacant possession. They also filed an interlocutory application for recovery of property. The self-represented appellants did not file a defence or a response to the application by the time the interlocutory application was heard. They requested an extension of time and indicated that they had evidence they wished to present. The applications judge did not grant an extension and but did hear the evidence and proceeded to grant an order for vacant possession with damages to be assessed.

HELD: Appeal allowed. Without even a cursory consideration of the appellants’ proposed evidence, a judge, in these circumstances, could not have reached the decision that there was no merit to their defence. 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 the appellants to present the evidence that they wished to submit. Despite counsel for the respondents requesting interim recovery, the applications judge proceeded to make a final order granting vacant possession. 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. Once the appellants appeared in Court as self-represented litigants at the interim application, an over the counter default judgment ceased being appropriate.

Taylor v. Mallany, [2019] N.J. No. 132, Newfoundland and Labrador Court of Appeal, D.E. Fry C.J.N.L., B.G. Welsh and C.W. White JJ.A., April 16, 2019. Digest No. TLD-May202019002