A judge’s efforts to reach what he considered a helpful outcome could not replace a self-represented litigant’s right to present her case, the New Brunswick Court of Appeal has ruled in an affordable-housing dispute.
In Craft v. Habitat for Humanity New Brunswick Inc., 2026 NBCA 11, the unanimous court set aside an order requiring Bobbie Craft to buy or leave a home and sent the matter back to a different judge. Repeated interruptions, insufficient reasons for rejecting her procedural requests and a failure to address disputed payment evidence denied her procedural fairness. The court did not decide whether she had breached the agreement. Reasons, paras. 26–41
Competing accounts of the housing arrangement
Craft was selected for Habitat’s homeownership program in 2017 and moved into a property in Grand Bay-Westfield, New Brunswick, in 2019. The contemplated documentation was not then completed, although she made monthly payments. She maintained that the original arrangement called for title to pass to her, with Habitat holding a mortgage. (Para. 3.)
A deferred-ownership agreement signed in 2023 instead provided for an initial 15-year occupancy term dating from September 2019 and a right to buy for $207,000. Monthly payments would cover property taxes, with the balance credited toward the purchase price. The agreement imposed payment and maintenance obligations and contained termination provisions. A later amendment imposed a zero-tolerance condition after Habitat rescinded earlier termination notices. (Paras. 4–8.)
Habitat issued new termination notices in July 2024 and applied for an order requiring Craft to leave. It alleged payment, utility and maintenance defaults. Craft disputed the basis for termination and sought to have the application converted into an action proceeding to trial, along with disclosure and other relief. Her pre-hearing brief also requested permission to cross-examine Habitat officials. (Paras. 9–12.)
The application judge rejected her motion and granted Habitat’s application on the basis of monthly-payment defaults. With Habitat’s consent, he gave her time to buy at a reduced price or leave. Craft appealed, arguing among other things that she had not received a meaningful opportunity to present her evidence and submissions. (Paras. 17–22.)
Written submissions did not cure the hearing
Justices Quigg, Green and Robichaud reviewed procedural fairness on the correctness standard. The question was whether the person affected had a meaningful opportunity to present the case fully and fairly, not whether the appellate court preferred the judge’s intended solution. (Paras. 22–26, 32.)
The transcript showed that the judge had not meaningfully heard Craft’s request to proceed by action. He outlined what he saw as the available outcomes before hearing the parties’ submissions, then cut off her attempts to explain why she disagreed. Directing a party to appeal was no substitute for hearing that party’s argument in the first place. (Paras. 27–29.)
Habitat argued that Craft’s written materials had already placed her position before the judge. The appeal court rejected that answer. Oral submissions could have corrected misunderstandings, including the location of her request for cross-examination: it appeared in her brief, not her notice of motion. Rather than hearing why she sought cross-examination or allowing procedural issues to be addressed, the judge refused it without sufficient explanation. (Para. 30.)
The court also identified a material distinction between a late payment and a contractual breach. Craft had offered explanations supported in part by the record, including prior permission to pay late and a banking problem affecting payment. The court noted that the payment affected by the banking problem was made within the original agreement’s 15-day rectification period. The significance of that evidence, including the effect of the zero-tolerance amendment, needed consideration rather than dismissal as a plea for sympathy. (Paras. 33–37.)
The appellate panel expressly declined to decide whether the payments breached the agreement. The failure to hear and address Craft’s position prevented a reliable determination of whether the full record had been considered. Her right to a meaningful hearing remained important even if she might ultimately lose. (Paras. 38–40.)
The January 29 decision remitted both the motion and Habitat’s application to the Court of King’s Bench before a different judge. It made no costs order because Craft represented herself, but allowed reasonable disbursements. The ruling did not award her title, cancel the agreement or finally determine Habitat’s entitlement to possession. (Para. 41.)
