November 12, 2009 Intended Appellant's Brief for Leave to Appeal Hearing, Court of Appeal, New...

7/30/2019 November 12, 2009 Intended Appellant's Brief for Leave to Appeal Hearing, Court of Appeal, New Brunswick, File

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I, Andre Murray of the City of Fredericton, in the county of York and Province of newBrunswick, MAKE OATH AND SAY AS FOLLOWS:

Your Honor:

1) I stand before you today appealing for stay of proceedings in the matter of Notice of Motion ( FORM37A) filed in NOTICE OF MOTION (FORM 37A) filed withCOURT OF QUEENS BENCH TRIAL DIVISION JUDICIAL DISTRICT OFMONCTON, N.B. as COURT FILE NUMBER MC064209 FILED SEP 18 2009,BETWEEN: ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate,Plaintiffs, -and- ANDRE MURRAY, Defendant.

2) And the subsequent Orders Issued EX PARTE from the COURT OF QUEENSBENCH TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON, N.B. onOctober 20, 2009

Today in my delivery to this HONORABLE COURT that the Respondents are not able toestablish any claim of authority with respect to the capacity of a Landlord within the The Residential Tenancies Act ,Acts of New Brunswick, 1975, c.R-10.2, s.9) The respondents are The Royal bank of Canada & 501376 N.B. Ltd.

a body corporate,The Royal bank of Canada holds only a interest in the property by way of a registeredmortgage which they have caused to be auctioned at public sale as a Mortgage Sale.

501376 N.B. Ltd. a body corporate was the successful bidder at this sale.

3) The Respondents are acting contrary to the: Terms of Sale & The Bidding Papers inthe matter of the above mentioned mortgage sale by public auction held on the 16 th day of July, 2009, furthermore, inspection of the Terms of Sale & The Bidding Papersfind the Respondents (respectively) by oath and signature are agreeing that thepurchaser 501376 N.B. Ltd., a body corporate will accept, subject to existingtenancies, deeds of conveyance with respect to real estate resulting from a mortgagesale by public auction held on the 16 th day of July, 2009 from vendor ROYALBANK OF CANADA.

The Respondents are transferring deeds of conveyance regarding real estate ( the samereal estate for which Andre Murray holds a year to year lease.

Duty of Care to Secure a Reasonable Price

[34] A mortgagee owes a duty of care to a mortgagor to secure a reasonableprice for a property subject to foreclosure and sale. Lord Denning in Standard Chartered Bank v. Walker , [1982] 3 All E.R. 939 at p. 942 stated:


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it is the [mortgagees] duty to use reasonable care to obtain thebest possible price which the circumstance of the case permit. Heowes this duty not only to himself (to clear off as much of the deptas he can) but also to the mortgagor so as to reduce the balanceowing as much as possible, If it should appear that the

mortgagee [has] not used reasonable care to realize the assets tothe best advantage, then the mortgagor [is] entitled to equity inallowance.

Note: according to rules of Court and a term referred to as Equity Redemption we see thatthe subject property was auctioned and a bid was accepted at $50,000 less than appraisedtax value which according to Equity Redemption Requirements and laws GoverningMortgage Sales.

The matter at hand concerns a Mortgage to Betty Rose Danielski. Record of Motion Page

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Andre Murrays Landlord Betty Rose Danielski as noted in a affidavit of Sept. 2, 2009sworn to in the City of Toronto, and province of OntarioQuote: and support any application by the Royal bank of Canada to gain possession of the subject property so, that it may be sold.

Betty Rose Danielski is the Title holder of a Property known as PID# 01548650 on whicha duplex premises exists bearing civic address 29 Marshall Street and 31 Marshall Streetin the City of Fredericton, N.B.. Record of Motion Page 6

Andre Murray is on the Title of the same above subject Property for which Betty RoseDanielski is the Title holder. This Property is known as PID# 01548650 resulting fromregistration of a Claim for Lien dated April16th, 209, in the York County Registry officeas Official Number 27035311.

Andre Murray with a Power of Attorney Richard Boileau ( appointed by BettyDanielski ) on or about September 1, 2005 signed contractual documents.Evidence of an exclusive and irrevocable right to first refusal and first option to purchase

from BETTY ROSE DANIELSKI subject property, which is identifiable as andregistered with Land Titles office under the title number ( P.I.D. 01548650) and premisescivic addresses 29 /31 Marshall Street at the City of Fredericton, County of York andProvince of New Brunswick. On or about September 1, 2005.

Note: Court Order to vacate 29 Marshall Street has caused Andre Murray loss of controlof these papers.

The wrongful eviction order of Andre Murray from the civic address 29 Marshall Streetin the City of Fredericton, N.B. Resulting from a request Sept. 9, 2009 by a CollectionAssociate for the Royal bank Of Canada known as Julie Ruggiero presumably in


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response to a affidavit by Landlord Betty Rose Danielski as noted in a affidavit of Sept.2, 2009 sworn to in the City of Toronto, and province of Ontario.

Who by affidavit and while in the City of Montreal, Quebec Julie Ruggiero does instructGeorge LeBlanc in Moncton, N.B. to acquire an Order that Andre Murray vacate the

property forthwith and as a matter of course Julie Ruggiero wanted Andre Murray to paythe cost of the within Motion. Last page of affidavite Record of Motion Notice of Salepage 82 and bidding papers Page 43.

The request from Julie Ruggiero of George LeBlanc is to seek an Order to vacate not anOrder to Evict. This is occurring despite her oath of Sept. 9, 2009 furthermore her notefound in paragraph 14.Quote: do verily believe that Mr. Murray claims to have a lease to the subject property.

The terms and conditions of this Mortgage sale include: Honoring all Tenancyagreements and leases. Record of Motion Page 44 Paragraph 8.

Yet the Hugh J. Cameron the Attorney representing the numbered company purchaser of the Mortgage, immediately began trying to remove Andre Murray from his lawfulTenancy at 29 Marshall Street and 31 Marshall Street. Record of Motion Page 47.

The Tenant Andre Murray has a lawful Lease signed Sept 1, 2005 and declared to allparties involved the existence of such. View Record of Motion page 107.

This year to year lease was signed by Andre Murray and Richard Boileau the Power Of Attorney acting agent for Betty Rose Danielski the registered owner of the property of 29Marshall Street and 31 Marshall Street. Record of Motion Page 6.

Richard Boileau as The Power Of Attorney did sign, the initial year to year Lease, asagent on behalf of Betty Rose Danielski .A Lease for the duplex civic address known as 29 Marshall Street furthermore the

duplex civic address known as 31 Marshall Street both dated Sept 1 st, 2005 RichardBoileau is I believe the same Power Of Attorney referred to Revocation of Power Of Attorney Document. Record of Motion Page 75 and 76. dated

1. Between Sept 1, 2005 to Sept 21, 2005 payments of $360 + $360 + $700 +$7,700$9120.00

2. Between Oct 2005 to November 16 2005 payments of $360 + $320 + $345 =$1025.00

3. Between November 16 2005 to Jan 11, 2006 payments of $345 + $345 + $345 =$1035.00

4. Between Jan 11, 2006 to Feb 20, 2006 payments of $345 + $690 + $20 =$1055.00

5. Between Feb 20, 2006 to May 2006 payments of $360 + $355 + $360 =$1075.00


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6. Between May 2006 to June 27, 2006 payments of $345.10 + $350 + $350 =$1045.10

7. Between June 27, 2006 to Oct.18, 2006 payments of $350 + $350 + $345=$1045.00

8. Between 18 Oct , 2006 to Dec 13, 2006 payments of $365 + $345 + $360=

$1070.009. Between Dec 13, 2006 to May , 2007 payments of $365 + $365 + $465 =$1095.00

10. Between May 00, 2007 to June 13, 2007 payments of $365 + $400 + $490=$1255.00

11. Between June 13, 2007 to July 10, 2007 payments of $140 + $520 + $1040=$1700.00

12. Between July 10, 2007 to 19 Sept , 2007 payments of $600 + $1000 + $600 =$2200.00

13. Between 19 Sept, 2007 to Nov 28, 2007payments of $1100 + $550 + $550 =$2200.00

14. Between Nov 28, 2007 to Jan 09, 2008 payments of $550 + $550 + $600 =$1700.00

15. Between Jan 09, 2008 to April 02, 2008 payments of $550 + $540 + $550 =$1640.00

16. Between April 02, 2008 to April 30, 2008 payments of $520 + $550 + $500 =$1570.00

17. Between April 30, 2008 to May 26, 2008payments of $540 + $525 + $530 =$1595.00

18. Between May 26, 2008 to Aug 06, 2008 payments of $525 + $525 + $530 =$1580.00

19. Between Aug 06, 2008 to Sept 17, 2008 payments of $525 + $530 + $530 =$1585.00

20. Between Sept 17, 2008 to Oct 29, 2008 payments of $530 + $530 + $520 =$1580.00

21. Between Oct 29, 2008 to Dec 10, 2008 payments of $520 + $520 + $520 =$1560.00

22. Between December 10, 2008 to February 18, 2009 payments of $500 =$500.00

23. $33,600 has been deposited into the RBC Bank account as required by BettyDanielski. In fact $38, 230.10 in total has been deposited since the first rentalpayment occurred Sept. 1 st, 2005 for each of the duplex civic addresses of 29Marshall Street & 31 Marshall Street in the City of Fredericton N.B. required asmonthly rental payment of $350 totaling $700 monthly between the twofurthermore we see that a credit of $4,630.10 will remain at the end of the lastyear to year lease term at Sept. 1 st, 2010


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The Tenant Andre Murray requested prepayment of the rent which was accepted in thelease contract and has fully paid the rental amount of the tenancy of both 29 MarshallStreet and 31 Marshall Street up to the date of Sept 1, 2010. Record of Motion page 111,paragraph 13.

The year to year leases for both the 29 and the 31 Marshall Street have continued up tothe present date, and are set to renew on Sept 1 , 2010. The Tenant Andre Murray hasreceipts and the deposit receipts from RBC indication the deposit of the rent paymentsdirectly to the account of Betty Rose Danielski in the amount totaling the value requiredto have paid the rent in total from Sept 1, 2005 up to Sept 1, 2010. Record of Motionpage 120 141.

When official transfer of Land Title occurs, and not before Title transfer occurs will thenew owner of the property with duplex civic addresses 29 and 31 Marshall Street be theLand lords and have all the rights and duties afforded as such under the Residential

Tenancies Act, S.N.B. 1975, c. R-10.213(9)Note: Where pursuant to subsection (7) a transferee assumes the obligations with respectto a tenancy, he is a landlord for all purposes of this Act.

The tenant requires the proper time to terminate the lease according to the tenancy act of NB which is in this case 3 months notice before the end of the year term dates. Record of Motion Page 190 paragraph o) 24(1).

Neither the Lawyer George Leblanc representing the RBC Bank, nor the RBC Bank holding a interest in the form of a Mortgage registered against the property title of civicaddresses 29 Marshall Street and 31Marshall Street are the Landlords.

Since this is the case Andre Murray has no obligation, or duty to present the Lease to theLawyer representing the RBC Bank, nor the RBC Bank. Furthermore, according to:Residential Tenancies Act, S.N.B. 1975, c. R-10.213(7) Where a landlord transfers his estate in the real property of which the demised

premises form all or a portion(a) the transferee assumes all of the obligations with respect to the tenancy; and13(9) Where pursuant to subsection (7) a transferee assumes the obligations with respectto a tenancy, he is a landlord for all purposes of this Act.Note: Transferee is one to whom a conveyance of Title or property is made.

According to the Tenancy act of NB simply the declaration of a lease is sufficient toestablish a lease to exist. "9(5)With respect to every tenancy agreement entered into after this section comes into force, a landlord and a tenant who entered into a tenancyagreement and who do not sign a Standard Form of Lease are deemed to have done soand all provisions of this Act and the Standard Form of Lease apply."


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The plaintiffs action in this matter either abused the court process or acted irresponsiblyin the service of documents to the plaintiff in a timely manner so that he may respondappropriately and in all fairness.

The Notice of action with Statement of claim attached was files in the Court of Queens

Bench Trial Division Sept 18, 2009.The Document where only attempted to be served first on Oct 5, 20009 to Oct 10, 2009.

Service of Documents dated Nov 18 thon Oct 13 where allegedly affixed to the door of 31Marshall Street.

Service of Documents dated Nov 18 th on Oct 13 at the door of 31 Marshall Street wherenot discovered until after the order was made.

Amended Notice of Motion not served on Andre Murray or on the property.No Affidavit of service to prove service of Amended Notice of Motion.

Damaged Documents discovered in the mail where post dated on the envelope as beingmailed Oct 15, 2009. The same Documents where post dated Oct 16, 2009 as beingremoved from circulation and repaired.

Sheriffs broke down the door of 31 Marshall street, not 29 Marshall Street and evictedAndre Murray despite the order clearly marking the 29 Marshall Street Addressinvalidating the Order of Eviction.

I have not given up care and control of 31 Marshall Street.

Of concern regarding possible motives for Betty to instruct RBC to sell the mortgage is alack of legally required performance on the part of Title holder Betty Danielski anddealings consistent with bad faith possibly attempted deception and or fraud in a attemptto deprive Andre Murray of his unregistered contractual agreement of certain rights of first refusal should property be sold.

It appears that service of preliminary Notice of Action and Notice of Motion both filedSept.18 th by the in this case respondents did not ever arrive into the defendants and orintended appellants hands except by mail October 19 th 2009 which was severelydamaged and challenging read ability as was Officially noted by Canada Post.Furthermore, the damage that occurred was significant enough to give cause for CanadaPost to remove this package from circulation for repairs. Note all this after being stampedin Fredericton where it apparently was mailed only the day before October 15, 2009.

This package was not allowed to continue until after extensive repairs were affectedOctober 16 th, 2009 and did not arrive at its destination of defendants residence address


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until after that weekend and only in the afternoon - one day before the Trial datedOctober 20, 2009.

Notice: I Andre Murray have never in my life spoken with the Process Server known asDave Daneliuk contrary to his perjured affidavit stating that he knows me personally.

I Andre Murray have never in my life seen Dave Daneliuk at my residence door.I Andre Murray do not know this man personally.Based on Dave Daneliuks affidavit I believe he is the same store detective who has beenstalking me for a good five years ever since I began shopping at Atlantic Superstore.Yet we have never spoken with each other contrary to his false and misleading claims of knowing me personally.

DISCLAIMER: I am not now, nor have I ever been criminally charged with an offenseof that nature and or officially processed by the criminal judicial system as DaveDaneliuk apparently and I suggest that he does obsessively believe.Furthermore, I do not now have nor have I ever had a criminal record!

Based on the affidavit of Dave Daneliuk obviously designed to defame Andre Murray Iconsequently am forced to believe because of the difficulty in receiving my much neededNotices Of Court Actions that there is mischief regarding the lack of service of CourtDocuments to Andre Murray Furthermore and question the professionalism and

judgment of the process Server Dave Daneliuk resulting from his affidavit containingfalse and hateful remarks.Dave Daneliuk the process server imagined that the four exotic pet birds and the pet cat

all of whom are very vocal when they anticipate seeing their friend Andre arrive homeare by Dave Daneliuks imagination people lurking within {but no one would answerthe door or show their face}

Yes, I did finally locate a package containing the Court documents Notices on the 22 nd day of October while walking around the house to hang up laundry I noticed the packageleaning against my 31Marshall Street address door.

Regarding Process Server Dave Daneliuk and his prejudicial dislike of Andre Murray asevidenced by slanderous and derogatory remarks in his affidavit are I believe affectinghis professional judgment and sense of fair play.Furthermore, obsessive unprofessional and slanderous remarks apparently attempting todefame the character of Andre Murray followed by outright statements which are liesalleging crime and dislike of commerce.

Paragraph 4 of Affidavite sworn 14 th day of October , 2009 at the City of Moncton, inthe County of Westmorland and the Province of New Brunswick: Dave Daneliuk Quote:Murray has extreme hatred towards government and big business.

Why where the documents mailed in Fredericton on the 15 th removed as damaged unableto continue by Canada post Re Stamped 16 th October, 2009 and removed from circulation


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and only arrived the 19 th of October damaged in a matter so as to not reveal dates of TrialDivision of Moncton dates of hearings regarding motions concerning Andre Murraydestroyed and papers missing!We see service of documents which are required by 37.04 (5) rules of court to bedelivered into hands of defendant Andre Murray no less than ten days before court trial

date.Process Server Dave Daneliuk does not begin service attempts until 18 full days afterSept 18 filing of Notice of Action and Notice of Motion.We hear stories of Note : Serivice of docs are left on other side of house where would

not likely be found on the 13th of October and only 6 days before trial date.

I motion to set aside the consequences of default, which in this case is the granting of the Orderfor Eviction or on a motion for an adjournment of a proceeding based on Rule 18.08

18.08 Service Not Conclusive(1) Whether or not a person has been served with adocument in accordance with these rules, the person mayshow on a motion to set aside the consequences of default,or on a motion for an adjournment of a proceeding or foran extension of time, that the document(a) did not come to the persons notice, or(b) came to the persons notice only at some timelater than when it was served or is deemed to have beenserved.(2) On the hearing of a motion referred to in paragraph(1), the court may allow the motion if it is satisfiedthat the applicant has established the grounds referred toin clause (1)(a) or (b).

(a) did not come to the persons notice, or

The document that was given Validation of service (Rule 18.09) did not come to Andre Murraysnotice before the court date, which the documents where intended to notify, the date and time of the court proceeding to Andre Murray. The document was left at a unused door way to the 31

Marshall Street civic address, marked with the number 31 above and to the left of the door. Thisdoor way was behind a secured gate, referred to in paragraph 7 of Dave Daneliuks Affidavit.This would likely indicate to most parties that this is not a doorway to enter the property. Thiswould also indicate that the door in question was not a front door referred to in paragraph 15of Dave Daneliuks Affidavit. The unused door had furniture in front of the door in side theresidence, causing the doorway to be inaccessible.

(b) came to the persons notice only at some timelater than when it was served or is deemed to have beenserved.

The document that was given Validation of service (Rule 18.09) did not come to Andre Murraysnotice before the court date, which the documents where intended to notify, the date and time of


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the court proceeding to Andre Murray. This document was only discovered by Andre Murray on the 22 of Oct, after the court date.

I motion to set aside 18.09 Validating Service because the conditions did not in fact exist, this

order should not have been granted.18.09 Validating ServiceWhere a document has been served by some methodnot authorized by an Act, these rules or an order of thecourt, or where there has been some irregularity in service,the court may order that the service be validated onsuch terms as may be just, if the court is satisfied that (a) the document came to the notice of the personsought to be served, or

The document that was given Validation of service (Rule 18.09) did not come to Andre Murrays

notice before the court date, which the documents where intended to notify, the date and time of the court proceeding to Andre Murray. This document was only discovered by Andre Murray on the 22 of Oct, after the court date.

(b) the document was left so that it would have cometo the notice of the person sought to be served, exceptfor his own attempts to evade service.

Documents of Notice Of Action and Notice of Motion and all other relative and required court documents required for study by Andre Murray in preparation of any counter claim where in theQueen[s Bench trial Division of Moncton on the 20 th of October, 2009 granted Validation of

service (according to Rule 18.09). Notice I Andre Murray the intended recipient and defendant Andre Murray had not comediscovered these court Notices ten days before the court date. Furthermore, the documents wherenot discovered until after the court date of October 20, 2009. The subject documenst was left at a unused door way to the civic address 31 Marshall Street,marked with the number 31 above and to the left of the door.This door way was behind a secured gate, referred to in paragraph 7 of Dave Daneliuks

Affidavit. This would likely indicate to most parties that this is not a well traveled doorway toenter the property. This would also indicate that the door in question was not a front doorreferred to in paragraph 15 of Dave Daneliuks Affidavit.This door was rendered a closed door four years earlier and had furniture placed on the inside

and in front of the door.

Note: It appears that under rules of court service that affidavits where sworn thatdocuments including amended notice of motion had been served at the 29 Marshall Streetdoor.

This is unjust for two reasons the documents appear to have been left in such a manner asnot to be found as they where later discovered October22, 2009 at the base of the 31Marshall Street address.


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Inspection of the documents reveal that the AMENDED NOTICE Of MOTION was notthere.Attention the AMENDED NOTICE Of MOTION could not possibly have been there asthe affidavit sworn to by Process Server Dave Daneliuk states that he delivered thedocuments the day before on the 13 th of Oct. 2009 the AMENDED NOTICE Of

MOTION document did not get filed COURT OF QUEENS BENCH TRIALDIVISION JUDICIAL DISTRICT OF MONCTON, N.B. until the following dayOctober14, 2009.These AMENDED NOTICE Of MOTION filed with COURT OF QUEENS BENCHTRIAL DIVISION JUDICIAL DISTRICT OF MONCTON, N.B. October14, 2009 arementioned as reasons for issuing the Court Order to Vacate and or cause Andre Murray tobe evicted according to and found in the Order issued COURT OF QUEENS BENCHTRIAL DIVISION JUDICIAL DISTRICT OF MONCTON, N.B.FILE REGISTEREDOCT.20, 2009

Other serious miss use of procedure, which considering the outcome, would cause any

reasonable man to believe, that these final results had to have been by design and that theintended design was to cause a {Catch up situation and or a EX PARTE} situation forthe defendant now their appellant.A lost opportunity to counter claim was the request by the Plaintiffs now the respondentsfor abridgements of service Rule 3.02 which they avoided using as is noted by ProcessServer Dave Daneliuk states that he delivered the documents the day before on the 13 th of Oct. 2009 .Note: This is 26 days after filing with COURT OF QUEENS BENCH TRIALDIVISION JUDICIAL DISTRICT OF MONCTON, N.B.!!!!

Furthermore even iof I had been fortunate enough to by chance walk where I never goand furthermore had I then found the documents left at base of 31 Marshall Street thiswould have left less than only 7 days before Court Rule 37.04(5) Time for service : atleast ten days before the date of hearing.

The convenience and or balance of convenience: Professionals acting in predatorymanner from the GET GO Respondent Hugh Cameron a solicitor acting as a ServiceProcessor the same day as the Mortgage sale issuing orders to vacate and notices of intention to enter with Police if necessary.This by a Solicitor followed by harassment and refusal to correspond by email preventingme from and or avoiding detection as I had finally issued a Cease and Desist againstHugh Cameron.

Note: Since the beginning of this Mortgage Sale the initial Notice by Registered mail of the intende Mortgage Sale to the address of Andre Murray was not received as indicatedby a non signature on the registered mail receipt.Not one more attempt was made to contact Andre Murray even thought he is Registeredon Title as a Lien Holder.

Betty Danielski pretends to be dismayed is without knowledge of Andre Murray eventhough she has benefited by $38, 000 in deposits to her account.plus she is found


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writing a courtesy letter to Andre Murray who earlier never existed informing him of herintention to remove the utilities from her name.

Both Respondents are perceived to be in a Rush Rush Rush situation to find resolve yetwhen the opportunity to properly make Service of Documents occurs ..instead of

serving documents immediately .instead they the Respondents cause the documents tobe delivered late this has caused the effect of one missed COURT OF QUEENS BENCHTRIAL DIVISION JUDICIAL DISTRICT OF MONCTON, N.B. hearing of October 20,2009.

NOTICE!!! The Court Order from COURT OF QUEENS BENCH TRIAL DIVISIONJUDICIAL DISTRICT OF MONCTON, N.B. resulting in the Order to Vacate 29Marshall Street is not acted upon until a delayed period of time almost adequate toprevent a proper NOTICE OF MOTION FOR LEAVE TO APPEAL which only allowsfor seven days.Note the Respondents wait three days before enforcing the Court Order to vacate the @9

Marshall Street Address .18.08 Service Not Conclusive

++++++++++++++++++++++++++++++++==

Consideration whether or not to grant leave to appeal.

According to the Rules of court 62.03 Leave to Appeal Subsection (4)

(4) In considering whether or not to grant leave to appeal,the judge hearing the motion may consider the following:

(b) whether he or she doubts the correctness of the order or decision in question; or

- The court order must not be valid because even though time for service of the Notice Of Motion was abridged in the court order,The COURT OF QUEENS BENCH TRIAL DIVISION OF MONCTON issued theCOURT ORDER based on the AMENDED NOTICE OF MOTION having been alsoserved.The fact that the AMENDED NOTICE OF MOTION was not filed in The COURT OFQUEENS BENCH TRIAL DIVISION OF MONCTON until the 14 th day of October isevidence that the of the AMENDED NOTICE OF MOTION could not have been servedFurthermore, there is no record of service of the AMENDED NOTICE OF MOTION .The rules of court state that the Notice of Motion must be served a least ten days beforethe trial date.The affidavit of Service by Dave Daneluik indicates leaving a package of information on

the 13 th of October, 2009 at the civic address 29 Marshall Street furthermore ServiceProcessor Dave Daneluiks affidavit did not include the Amended Notice of Action.


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The COURT OF QUEENS BENCH TRIAL DIVISION OF MONCTON issued aCOURT ORDER That ANDRE MURRAY VACATE civic address 29 Marshall Streetbased on the AMENDED NOTICE OF MOTION having been sewrved IT WAS NOTSERVERED THE PROCESS SERVER DID NOT HAVE A COPY AS IT DID NOTYET EXIST AS A FILED COURT DOCUMENT- The 29 Marshall Street and 31 Marshall Street property have 5 doors 5 possibleentrances and or exits. The door that Dave Daneluik indicates in his Affidavit as havingleft a package of information on the 13 th of October ,2009 at the 29 Marshall Streetproperty, which he decided was the front door, was behind a secured gated arbor whichis also described in his affidavit. The gated arbor has the mail box on the street side of thesecured arbor door, I retrieve my mail from street side of the secured arbor door. Thisdoorway described as the front door is never used except by appointment of clientswho are escorted directly to the sunroom entrance of my studio office at civic address 29Marshall Street. This is a secured gate to discourage the use, and indicate the status of thedoorway as not being used. The only way to arrive at the door where furthermore ServiceProcessor Dave Daneluiks affidavit swears that he left the documents would requirewalking around the duplex which is approximately 100 feet long furthermore ServiceProcessor Dave Daneluiks would have to navigate his way through the Dense 12 foothigh bushes.Service Processor Dave Daneluik would have to ignore the two most likely used doors

which each face the Street and instead he would have to walk out of sight into an alcovedeep recess of 10 feet where a door with the number 31 clearly indicated on the wallbesi9de the door.to the property.

- The damaged envelop that the Appellant Andre Murray found in the mail boxapproximately 4 P.M. one day before the hearing to the knowledge of the appellant hasno affidavit of Service, and the senders identity is unknown at this time.

- Though the order for abridgement for service for the Notice of action suggests that therewas urgency in service of the court document related to the trial, there appears to be no

attempts to contact the Appellant Andre Murray and there appears no attempts of serviceof the document until the first attempts 15 days away from the established trial dateleaving little time to prepare had the Appellant Andre Murray received the documentseven then, which he did not.

- Attempts to serve the documents indicated in the Affidavit of Dave Daneliuk had takenplace from Oct 5th to the 10 th of Oct, the Process Server interpreted what is most likelythe sounds of my 4 exotic pet birds and one very vocal pet cat to be indication of personsbeing present at he time of attempted service. If anyone approaches the doors theybecome very vocal and can sound like people I was not at the Marshal Street properties atany of these times and did not know that Documents where in the process of being servedon me.

- The affidavit of service by Dave Daneluik indicates leaving a package of information onthe 13 th of October, 2009 at the 29 Marshall Street property even though the documentshad been filed Sept 18, 2009 . This date of actual service, and furthermore had theAppellant found the documents on the same day than this late service on the Appellantwould have only allowed less than 7 days to prepare a counter claim.Note: These documents where not discovered until the 22 nd two days after the GOURTHEARING OF THE MOTION and one day before the surprise eviction.


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- The Appellant Andre Murray found the damaged documents in the mail box at 4:00 pmMonday Oct 19 th, 2009, one day before the court hearing of Oct 20 th 2009 in the city of Moncton New Brunswick, two hours drive away. Calls to the court of Queens BenchTrial Division in Monton revealed no information and the Clerk of the court fromMoncton did not return phone call messages.

- The Order from the COURT OF QUEENS BENCH TRIAL DIVISIONJUDICIAL DISTRICT OF MONCTON, N.B. on October 20, 2009 was made Exparte, so the Appellant Andre Murray had no represented defense in court. The Ex Partesituation was directly because of, and according to the rules of court Rule 18.08 Servicewas not conclusive.

18.08 Service Not Conclusive(1) Whether or not a person has been served with adocument in accordance with these rules, the person mayshow on a motion to set aside the consequences of default,or on a motion for an adjournment of a proceeding or for an extension of time, that the document (a) did not come to the persons notice, or (b) came to the persons notice only at some timelater than when it was served or is deemed to have beenserved.(2) On the hearing of a motion referred to in paragraph(1), the court may allow the motion if it is satisfied that the applicant has established the grounds referred toin clause (1)(a) or (b).

- This lack of Service to the Appellant was directly a result of either abuse of process orirresponsible service on the part of the intended respondents. This lack of service createdan unfair unbalanced situation that favored the respondents, without representation of behalf of the appellant in a matter of the utmost concern and that so directly affected theAppellant Andre Murray.

- Had the appellant been notified of the proceeding in a timely manner according to theRules of Court, the Appellant would have been present and properly responded with theevidence possessed by the appellant, it is the belief of the appellant the judge would in alllikelihood have came to a very different decision having all the relevant facts at hisdisposal to make a decision

- Had the appellant been present in court the fact that the Appellant Andre Murray has aLease according to the of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2 .

Furthermore, with a Power of Attorney appointed by and acting on Betty RoseDanielskis behalf, the Appellant Andre Murray signed a year to year leaseagreement as of the date; Sept 01, 2005 for both of the civic addresses andpremises known as 29 Marshall Street and 31 Marshall Street in the City of Fredericton, N.B. would have been presented.

The leaseholder Andre Murray according to section 8(4) of the ResidentialTenancies Act, S.N.B. 1975, c. R-10.2 and furthermore on Sept. 01, 2005 or thereabout, leaseholder Andre Murray did offer /request to prepay any subsequent


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sums of money to be used as a prepayment fund for future rent payments. Thisoffer and actual cash pre-payment was accepted by and recorded by receipt of deposit written to that effect as proof of receipt. Furthermore the Agent - Power of Attorney acting for Landlord Betty Rose Danieldski and leaseholder AndreMurray did enter these terms into the lease documents

"8(4) No person shall require(a) under a lease, or

(b) as a condition of

(I ) entering into a lease, or

(ii) not terminating a lease,

any other person to pay any amount other than rent, a security deposit or areasonable amount for any service to be provided in relation to the tenancy, and any agreement under which such a requirement is imposed is void."

Furthermore, as a result of the acceptance of the Appellant Andre Murrays offerto prepay rent and the Power of Attorney issued receipts on behalf of Betty RoseDanielski (landlord) indicating paid in full and by cash I have always prepaid theagreed rental sums according to my Appellant Andre Murrays lease andmaintained a deposit sufficient in total up to and until the ending of the fifth leaseterm of Sept 1, 2009 to Sept 1 2010 to Betty Rose Danielski's Royal Bank account.

Furthermore, according to section 8(4) of Residential Tenancies Act, S.N.B. 1975,c. R-10.2 I leaseholder Andre Murray has these receipts officiallychronologically documenting the above mentioned rent pre-payment schedule

beginning Sept 1, 2009 to Sept 1, 2010 by teller receipts issued from Royal Bank Of Canada payable to the account of Betty Rose Danielski.

13(7) Where a landlord transfers his estate in the real property of which thedemised premises form all or a portion

(a )the transferee assumes all of the obligations with respect to the tenancy; and

(b) no action lies against the transferor for any obligation with respect to thetenancy; arising after notification of the transfer takes place in accordance withsubsection (8).

13(8) Where a landlord transfers his estate in the real property of which thedemised premises form all or a portion he shall notify the Rentalsman and thetenant of such transfer in the form prescribed by regulation within seven daysafter such transfer.

13(9 ) Where pursuant to subsection (7) a transferee assumes the obligations withrespect to a tenancy, he is a landlord for all purposes of this Act .

TERMINATION OF TENANCIES


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24(1) A notice of termination of a tenancy is to be served

( a) if the premises are let from year to year, by the landlord or the tenant at least three months before the expiration of any such year to be effective on the last day of that year;

24(1.1 ) A notice of termination under this Act shall be in writing.

Furthermore, the Appellant Andre Murray had not received appropriate notice of termination according to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 24(1)( a) if the premises are let from year to year, by the landlord or the tenant at least

three months before the expiration of any such year to be effective on the last day of that year;

- The very reason the Appellant signed a year to year lease was to be afforded theprotection of The Residential Tenancies Act. The Residential Tenancies Act, S.N.B.1975, c. R-10.2 , was put in place to protect both the Tenant sand Landlords from abuse.The Appellant Andre Murray is protected under the Tenancy by Residential TenanciesAct, S.N.B. 1975, c. R-10.2 , Appellant Andre Murray had not been notified in writingby the landlord Betty Rose Danielski three months before the ending of the year to yeartenancy term to properly end the Tenancy agreement.

(c) whether he or she considers that the proposed appealinvolves matters of sufficient importance.

- The Order from the COURT OF QUEENS BENCH TRIAL DIVISIONJUDICIAL DISTRICT OF MONCTON, N.B. on October 20, 2009 was made Ex

parte, so the Appellant Andre Murray had no represented defense in court. The Ex Partesituation was directly because of, and according to the rules of court Rule 18.08 Servicewas not conclusive. The Appellant was not made aware of the Court proceedings.

- The rules of court have set standards of time in which to provide service on effectedparties and for those served to in all fairness respond in a timely manner. The rules of court had set standards methods of service. These rules of the court were changed in thiscase to serve the intended Respondents and unbalance the equality of law by way of notice of motion, and the subsequent and in all likely hood Ex parte situation in court,because the Appellant was left ignorant to the fact of a court proceeding taking place atall.

- The defendants ability to provide for himself has been removed because theplace in question was a studio environment that allowed the Artist Andre Murrayto work from, Art from which commissions provided the income and lively hoodof the defendant. The Appellant is now jobless as a result of this order.

- The Appellant will suffer a loss in the valued amount of $7000 in prepaid ingood faith rental sums for the 29 Marshall Street and 31 Marshall street locationsthat should have covered rental expenses up to Sept 1, 2010. Protection of The


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Residential Tenancies Act, S.N.B. 1975, c. R-10.2 should have prevented this andis one the reasons the tenancy act of N.B. exists is to protect individuals fromabuse.

- The Residential Tenancies Act, S.N.B. 1975, c. R-10.2 is a law that secures a

Tenant protection from predatory property conveyances. The ResidentialTenancies Act, protects the Appellant Andre Murray from eviction from 29Marshall Street and 31 Marshall Street, in Fredericton N.B.. Yet the eviction hadtaken place because of the Appellant Andre Murray had no represented defense incourt. The Ex Parte situation was directly because of, and according to the rules of courtRule 18.08 Service was not conclusive.

____________________________________________

In the matter of a Stay of Proceedings

62.26 Stay of Proceedings(2) A motion for a stay of execution or a stay of proceedingsmay be made before the judge appealed from,the Court of Appeal or a judge of the Court of Appeal.

(3) On a motion for a stay of execution or a stay of proceedings, the Court of Appeal or judge may(a) if a question arose at the trial or hearing which is

appropriate for submission to the Court of Appeal,grant a stay,

In Allsco Building Products Ltd. v. United Food and Commercial Workers International Union, Local 1288P (1998), 207 N.B.R. (2d) 103, at p. 112, Turnbull J.A.,reiterated the time-honoured rule that, in exercising the discretion conferred by Rule62.26 of the Rules of Court , a judge must decide whether it is just and equitable togrant the provisional remedy while proceedings are pending. Courts have traditionallyresolved that question by applying the well-known three-prong test formulated in

Manitoba (Attorney General) v. Metropolitan Stores Ltd. , 1987 CanLII 79 (S.C.C.) ,[1987] 1 S.C.R. 110, and RJR-MacDonald Inc. v. Canada (Attorney General) , 1994CanLII 117 (S.C.C.) , [1994] 1 S.C.R. 311:

(1) Does the appeal pose a serious challenge to the decision in the court below?

(1) Serious triable issue


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The first part of the three-stage test is the determination of whether LebyFixtures action against the Bank raises one or more serious triable issues. It is not thefunction of the Court at this stage to determine whether Leby Fixtures might succeed inits action. The threshold has been described as a low one (see Sunny Corner Enterprises

Inc. v. St. Anne Industries Ltd. 2005 NBCA 54 (CanLII) , (2005), 286 N.B.R. (2d) 19,

[2005] N.B.J. No. 203 (QL), 2005 NBCA 54, at para. 14 and the cases cited therein). InCanada East Manufacturing this Court described the first stage of the test in thefollowing words (at para. 9):

There is no requirement that a reasonable prospect of succeeding beestablished In RJR-MacDonald Inc. , the Supreme Court of Canadastated at 337-38:What then are the indicators of a serious question to be tried? Thereare no specific requirements which must be met in order to satisfy thistest. The threshold is a low one. The judge on the application must

make a preliminary assessment of the merits of the case....Once satisfied that the application is neither vexatious nor frivolous, themotions judge should proceed to consider the second and third tests,even if of the opinion that the plaintiff is unlikely to succeed at trial. Aprolonged examination of the merits is generally neither necessary nordesirable.

- In this case the Appellant Andre Murray who holds a lease and is prepaid in rentup to Sept 1, 2010 for the 29 Marshall Street and 31 Marshall Street duplex unitswas by order of the court toe be evicted 29 Marshall Street.

- This Order to Evict would likely not have occurred had Andre Murray beenserved properly and in all fairness had time to properly reply and defend himself in court. This Lack of service directly lead to the Ex Parte hearing whichconsequentially and evidentially caused the Judge to render a verdict with half of the submission and without any counter claims by in this case the defendant nowthe appellant .

-The Residential Tenancies Act, S.N.B. 1975, c. R-10.2, protects Appellant AndreMurray from eviction, because he has a lawful signed year to year lease , signedby Mr. R.Boileau the Power of Attorney for the registered holder of Land Title tothe property the 29 Marshall Street and 31 Marshall Street Betty Rose Danielski,and Landlord in this case.

- The Order from the COURT OF QUEENS BENCH TRIAL DIVISIONJUDICIAL DISTRICT OF MONCTON, N.B. on October 20, 2009 was made Exparte, so the Appellant Andre Murray had no represented defense in court.

- This Ex Parte situation was directly because of, and according to the rules of court Rule18.08 Service was not conclusive. This Ex Parte situation caused an imbalance of


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information, one sided information only so that justice could not be weighed equally bythe Honorable judge in The Court of Queens Bench Trial Division of Moncton.

(2) Will the applicant suffer irreparable harm without a stay?

In the case of RE: Leby Fixtures & Interiors 2006 NBCA 93 (CanLII) , (2006), 305N.B.R. (2d) 199 (C.A.) the Court of Appeal stated that it is the nature of the harmsuffered not the magnitude that makes it irreparable. They also stated that being put outof business is a type of harm that is recognized as irreparable so as to meet this test.

In RJR-MacDonald , the term irreparable is said to refer to the nature of the harmsuffered rather than its magnitude. The Supreme Court explains at para. 59 that [i]t isharm which either cannot be quantified in monetary terms or which cannot be cured,usually because one party cannot collect damages from the other.

Examples of the former [harm that cannot be quantified in monetaryterms] include instances where one party will be put out of business by thecourts decision (R.L. Crain Inc. v. Hendry reflex , (1988), 48 D.L.R. (4 th)228 (Sask. Q.B.)); where one party will suffer permanent market loss orirrevocable damage to its business reputation (American Cyanamid,supra);

- By not being able to utilize the studio space as well as being in a lock outsituation The Appellant Andre Murray has not been able to access records andfiles, both physical and digital which has prevented The Appellant Andre Murrayfrom continuing with designing art commissions which is the source of livelihoodof the Appellant.

- This Lack of production has cost The Appellant Andre Murray the loss of artcommissions and is creating a loss of face situation that I may not be able torecover from. Once one loses there credibility as an artist and begins to have areputation of lack of production in a timely manor then the Appellant AndreMurrays career may well be over.Note: To accomplish my work which is always commissioned by way of a priorconsultation in my studio / office space environment followed by Progress Reportand further design alteration consolation meetings.Furthermore before the actual commisiion is finished or even moves past thesketch stage to actually arrive on the canvas as a finished piece of art the clientwill be required to make several consultations and several application sessionappointment meetings in my studio .Furthermore these meetings must take place over a c0onsistent time periodregulated at approximately nothing less than one week apart and often once thedesign template is completed application may continue every day consecutivelyfor a week. This is I believe irreparable harm, money cannot compensate forreputation and loss of face in the professional world


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.

- The location at 29 Marshall Street has been established as a trusted comfortablelocation over the course of more than four years of use and this status of credibility which the appellant has established will be lost.

This again was the reason for having a year to year lease which would require of the Landlord to give nothing less than three months notice and furthermore thisnotice to terminate lease must be three moths before the beginning of the nextyear lease term.- The appellant has and will continue to suffer harm, particularly in termsof lost opportunities, to service clients who have commanded prepaid byway of deposit commissions, which goes beyond what can be quantified inmonetary terms, the Applicant will suffer The loss of reputation andirreparable harm if this Stay of Proceedings is not granted.At this verymoment I have approximately twenty clients with steady unfinished work on the go.

(3) Balance of convenience

Does the balance of convenience favor the order sought? The first branch of the test isreferred to in Rule 62.26, while the second and third branches have been formulated bythe courts to provide a principled framework for the exercise of discretion contemplated by the Rule.

QUOTE

In RJR-MacDonald , the Supreme Court said this about the third stage of thethree-stage test (at paras. 62-63):

The third test to be applied in an application for interlocutory relief was described by Beetz J. in Metropolitan Stores at p. 129 as: "adetermination of which of the two parties will suffer the greaterharm from the granting or refusal of an interlocutory injunction,pending a decision on the merits". In light of the relatively lowthreshold of the first test and the difficulties in applying the test of

irreparable harm in Charter cases, many interlocutory proceedingswill be determined at this stage.

The factors which must be considered in assessing the "balance of inconvenience" are numerous and will vary in each individualcase. In American Cyanamid, Lord Diplock cautioned, at p. 408,that:


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It would be unwise to attempt even to list all the various matterswhich may need to be taken into consideration in decidingwhere the balance lies, let alone to suggest the relative weight tobe attached to them. These will vary from case to case.

He added, at p. 409, that "there may be many other special factorsto be taken into consideration in the particular circumstances of individual cases."

- The inconvenience Suffered by Appelant Andre Murray of being wrongfully evictedfrom his home at 31 Marshall Street Address.

- The inconvenience of being evicted from my studio work space at 29 Marshall StreetAddress. The investment inconvenience at a time of no income for the move to a newlocation will be most inconvenient to the Appellant.

- By not being able to utilize the studio space as well as being in a lock outsituation The Appellant Andre Murray has not been able to access records andfiles, both physical and digital which has prevented The Appellant Andre Murrayfrom continuing his livelihood.

- The inconvenience of Appellant Andre Murray of being faced with the situation of having to physically relocate a reputable established art studio location of more than 4years, and move all the relative equipment and supplies this situation is one that thetenancy act of N.B. should have offered protection from.

- This order has caused a state of affairs where the Bank RBC is withholding of property under the care and control of Andre Murray and suggesting advancedpayment will be necessary so that Andre Murray may access the property.

- This order has caused a state of official homeless for the defendant AndreMurray because the eviction process that occurred included the eviction of AndreMurray from the 31 Marshall Street property as well.

- The Appellant ability to provide for himself has been removed because the placein question was a studio environment that allowed the Artist Andre Murray towork from, Art from which commissions provided the income of lively hood of the defendant. The defendant is now jobless as a result of this order.

- The defendant will suffer the loss in the valued amount of $7000 in prepaid rentfor that 29 Marshall Street location that should and would have covered rentalexpenses up to Sept 1, 2010.

- The life of Appellant Andre Murray has been completely interfered with bothdomestically and professionally, The personal and professional life of Appellant AndreMurray, that has been established for more than 13 years furthermore the last 4 and a half


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tears at the Studio environment of 29 Marshall Street location has been turned upsidedown by this unjust eviction process.

- Hugh Cameron in his Affidavit confirms that his law firm was retained because thepurchaser, a numbered company had viewed an add for Notice of Mortgage Sale in thepaper. The property is sold as is where is and the interested parties, on a whim, havingnot ever seeing the property made a bid at auction through the solicitor Mr. Cameron.

- The bidding papers from the RBC bank clearly state that a condition of sale is to honorTenancies as part of the bidding terms of sale, yet the very first action by the purchasersof the property if to attempt to evict the Tenant Andre Murray.

- The prospective buyer of the property has indicated no plans to live at Property.

(b) if a stay of execution or a stay of proceedings maycause the respondent to lose the benefits of the verdict or judgment, impose terms to secure the respondentsinterests, and (c) impose any other terms necessary to prevent prejudiceto the respondent.

Rescinding Orders Made Without Notice

- The matter that just came to the attention of the appellant Andre Murray is arequest to rescind the entirety of the order from the court according to Rule 37.06of the rules of court.

37.06 Rescinding Orders Made Without Notice(1) A person affected by an order made without noticeto him, or a person who has failed to appear on a motionthrough accident, mistake or insufficient notice, mayapply by Notice of Motion served within 10 days and re-turnable within 25 days after the order came to his attention,to have the order rescinded or varied.(2) Where possible, a motion made under paragraph


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(1) shall be made to the judge who made the order.

-

Finally Andre Murray asks the court to make an order, or create a letterestablishing the occupancy of Andre Murray of 31 Marshall Street to be validso that I may not fear the ignorance of some enforcement agencies wrongfullyevicting me in error and possibly causing me harm.

- Without official standing on the 31 Marshall Street address the appellant ishomeless as well as unemployed because of this court order evicting theAppellant from 29 Marshall Street which has all necessary supplies andenvironment to be an artist.

SWORN TO AT THE City of Fredericton, )In the County of York And Province of )New Brunswick this )_________day of __________ 2009. )BEFORE ME: )

))))) __________________________________

____________________________________ ) Andre MurrayA NOTARY PUBLIC orCOMMISIONER OF OATHSPROVINCE OF NEW BRUNDSWICK

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