Case: Morgan v. The City of Fredericton, 2026 NBCA 113 (CanLII)
Keywords: demolition; jurisdiction; municipal law
Synopsis:
The Appellant property owner receives a Notice to Comply letter from the Respondent City of Fredericton advising that a building located on his property is to be “secured or demolished in accordance with By-law No. S-16” as it is “a hazard to public safety”. (See para. 4). The Appellant emails the City with questions to which the City, after some delay, eventually responds. (See para. 5). About a month afterwards, the City issues a “Form 4 Notice to Comply – Dangerous or Unsightly Premises” pursuant to the Local Governance Act, S.N.B. 2017, c. 18, s. 132(2), which orders the Appellant to demolish the building. (See para. 6). That same day, the Appellant files an appeal. (See para. 7). The appeal is heard by the Public Safety Committee, which determines the building is a hazard “due to being vacant or unoccupied and by reason of dilapidation under ss. 4(2) and 4(3) of By-law No. S‑16”. While the Committee dismisses the appeal, it extends the time period in which the Appellant can satisfy the Notice to Comply. (See para. 9).
The Appellant does not appeal the Committee’s decision to the Court of King’s Bench within 14 days (i.e., in accordance with the procedure set out in the Form 4 Notice to Comply). (See para. 10). City Council then takes a series of steps towards demolishing the building. (See paras. 11-12). The Appellant files a notice of motion for an interlocutory injunction, but the Judge finds the Court lacks jurisdiction to extend the appeal period and cannot grant the relief sought. (See para. 15). The Court of Appeal (Quigg, LeBlanc, and Robichaud JJ.A.) allows the City’s motion to dismiss the Appellants subsequent appeal and request for a stay. (See para. 2).
Importance:
For the Court of Appeal, the Appellant’s appeal met the requirements of Rule 62.23(1)(b) (i.e., “the appeal is frivolous, vexatious, or without grounds”). (See para. 18). The Court summarized the analytical framework at paras. 19-22, indicating that it “may consider both the merits of the appeal and how the underlying litigation has been conducted”. (See para. 22).
The Court of Appeal found that the 14-day limitation period to appeal the Committee’s written decision to the Court of King’s Bench was “clearly delineated in Form 4 under the Act that he was served with”. (See para. 22). Section 134(8) of the Local Governance Act says:
The owner or occupier who is provided with a copy of a decision under subsection (6) may appeal the decision to a judge of The Court of King’s Bench of New Brunswick within 14 days after the copy of the decision was provided to the owner or occupier on the grounds that
(a) the procedure required to be followed by this Act was not followed, or
(b) the decision is unreasonable.
As noted above, the Appellant did not appeal the Committee’s decision within 14 days. The Appellant’s position was that, in the circumstances s. 134(8) provided the Court of King’s Bench jurisdiction to grant relief – “independent of the statutory appeal period”. (See para. 23). The Court of Appeal quoted and emphasized the following key language from K.C. v. New Brunswick (Minister of Health and Community Services), (1998), 1998 CanLII 17954 (NB CA): “where the statute does not fix a deadline for appeal, Rule 62.05(2)(a) applies and the court may extend the time for appeal under the authority of Rule 3.02(1). However, the situation is different where the time for appeal is fixed by statute.” (See para. 24).
In this case, the Court of Appeal affirmed the proposition that there is no inherent jurisdiction to extend the time for appeal where it is set by statute – that the power to extend must be found in the statute itself or in some other statute. (See para. 24, quoting “There is no inherent jurisdiction to extend the time for appeal where it is set by statute”). Importantly, s. 128 of the Local Governance Act “mandates that by-laws must adopt the enforcement provisions set out in ss. 130-143 of the Act”. (See para. 25). Therefore, for the Court of Appeal, there was no jurisdiction because:
- the Local Governance Act set out an appeal process and 14-day deadline at s. 134(1);
- the City’s by-laws were crafted “in conformity” with the deadline (i.e., the deadline is repeated in By-law No. S-16); and
- Form 4 also indicates the appeal deadline. (See para. 28).
In the result, the Court of Appeal found the appeal to be frivolous because “[t]here is no basis upon which the appeal could be successful” and the Appellant’s appeal was “motivated by a desire to continue to litigate matters despite his action being statute- barred”. (See para. 29).
Counsel for the Appellant: Adam Morgan, on his own behalf
Counsel for the Respondent: Chantal Gauthier (City Solicitor’s Office, Fredericton)