Oct. 19, 2011, 2nd Court of Appeal Hearing requesting Rule 62.21(1) Orders that confirm a...

8/3/2019 Oct. 19, 2011, 2nd Court of Appeal Hearing requesting Rule 62.21(1) Orders that confirm a Continuance of Mechan

1/44

Court of Appeal File Number: 105 11 - CA

(Court File Number: F/C/104/09)

IN THE COURT OF APPEAL OF NEW BRUNSWICK

BETWEEN:

ANDRE MURRAY

APPELLANT (Plaintiff )

-and-

BETTY ROSE DANIELSKI

RESPONDENT (Defendant)

Appellants Submission

Filed by self represented

APPELLANT

ANDRE MURRAY

Andr Murray

APPELLANT

(Plaintiff)

31 Marshall Street,

Fredericton,

New Brunswick,

E3A 4J8

Telephone Number:

E-mail address:

andremurraynow@

gmail.com

Solicitor for


Betty Rose Danielski

E. Thomas Christie,

CHRISTIE LAW OFFICE

Suite 306,

212 Queen Street

Fredericton,New Brunswick

Canada

E3B 1A8

Tel: (506) 472 2090

Fax: (506) 472 2091

E-Mail: [email protected]

Betty Rose Danielski



2/44

i

Appellants Submission

(Rule 62.14)

INDEXof the contents

Page

a) Part I - An index of the contents; _______________________________b) Part II -A concise statement of all relevant facts with such

references to the evidence as may be necessary;___________________

c) Part III - A concise statement setting out clearly and particularly inwhat respect the order or decision appealed from is alleged to be

wrong;_____________________________________________________

d) Part IV - A concise statement of the argument, law, and authoritiesrelied upon;_________________________________________________

1) Hearing February 14, 2011. ________________________________

2) Hearing Rule ___________________________________________

3) Bias Rule ______________________________________________

4) Written Decision June 24, 2011 ____________________________

5) Evidence on Motions_____________________________________

7) Written Decision June 24, 2011 __________________________

8) Evidence on Motions___________________________________

9) Discretion___________________________________________

10) Rule 1.03 (2) _________________________________________

11) Material misapprehension of the evidence_________________

12) Setting the matter down for Trial_________________________

13) Moving the matter along________________________________

14) Reason for the Delay___________________________________

i

1

1

8

8

8

9

10

10

11

10

11

13

15

17

18

19


3/44

ii

15) Prejudice ____________________________________________

16) Ownership of Property_________________________________

17) Mechanics Lien Documents _____________________________

18) Recovery of Documents ________________________________

19) Reasonable Apprehension of Bias ________________________

20) Costs _______________________________________________

21) Regarding Order Sought________________________________

e) Part V - A concise statement of the order sought from the Court ofAppeal, including any special disposition with regard to costs;_________

f) Schedule A - A list of authorities in the order referred to in theSubmission; and_____________________________________________

g) Schedule B - The text of all relevant provisions of Statutes orRegulations (or copies of the complete Statute or Regulation may be

filed and served with the Submission).____________________________

20

22

23

26

27

30

34

35


4/44

1

Part II A concise statement of all relevant facts with such references to the

evidence as may be necessary;

Relevant Time Line1. April 16, 2009 Registration of Mechanics Lien, a Claim for Lien.2. April 21, 2009 Court File Date Stamped Notice of Action (Form 16 B).3. May 20, 2009 Court File Date Stamped Statement of Claim (Form16 C).4. August 21, 2009 Date Amended Statement of Claim (Form 16 C).5. October 19, 2009 Service of Court Documents on Defendant Occurred.6. October 20, 2009 Ex parte, Hearing and Eviction without Notice.7. October 23, 2009 enforcement of Eviction Order 29 Marshall Street

effecting Plaintiff forthwith who must vacate without any property.8. October 2009 Plaintiff mistakenly filed LEAVE to APPEAL

9. November 2009 Plaintiff mistakenly attends LEAVE to APPEAL10.December 14, 2009 Moncton Hearing Requesting Rescinding of Orders11.January 18, 2010, 2nd Moncton Hearing for access contractual papers.12.March 22, 2010 3rd Moncton, Hearing for access contractual papers.13.April 20, 2010 Service Notice of Motion for Action Continuance.14.May 31, 2010 Service of 1st request for Consent to Continuance.15.May 31st, 2010. Service of Amended Notice of Motion for Continuance16.June 10, 2010 1st Hearing for Continuance of Mechanics Lien Action.17.November 29, 2010 4th Moncton, Hearing to retrieve documents.18.February 14, 2011 2nd Hearing Continuance of Mechanics Lien Action.19.March 23, 2011 5th Moncton Hearing to retrieve documents

Part III A concise statement setting out clearly and particularly in what

respect the order or decision appealed from is alleged to be wrong;

1. Within decision area paragraph 9 the learned Trial Judge demonstratesReasonable Apprehension of Bias in erroneously alluding to delay when in

fact there has not been a delay, as well Bias is realized to the matter of Trial

Judge: prejudice to the Defendant evidence has not been provided.

2. Within decision area paragraphs 10 and 11 nothing significant orrelevant is addressed in pursuance with section 52.1(1)(b) of theAct., that the

action be continued.


5/44

2

3. Within decision area paragraph 12 Learned Trial Judge continues toerror in law grossly misapprehending the facts therefore and thereby adducing

irrelevant material not before the Honorable Court (demonstrable bias) and

erroneously alluding as relevant material under section 52.1(1)(b) of theAct.

4. Within decision area paragraph 13 Learned Trial Judge continues toerror in law grossly misapprehending She no longer owns this property inter

alia, facts not found before the Honorable Court, further resorts to inference

from defective or presumptive evidence to satisfy what must be a demonstrably

realized as Reasonable Apprehension of Bias.

5. Within decision area paragraph 14 Learned Trial Judge continues todemonstrate Reasonable Apprehension of Bias supported by the Trial Judge

misapprehension in interpretation of the Act therefore obsessing with this

reoccurring Biased concept, held by the Learned Trial Judge of: delay.

6.

Within decision area paragraph 15 Learned Trial Judge determinesprejudice to the Defendant without fact; further erroneously contends She

does not own the property and has not since July 16, 2009; furthermore,

despite voluminous submissions demonstrating and affidavits confirming

otherwise, Learned Trial Judge contends nothing has happened inter alia.

7. Within decision area paragraph 16 Learned Trial Judge, finallyconclusively demonstrates a Bias therefore, relying upon Given all of the

above which could not reasonably be relevant in pursuance with the motion

under s. 52.1(1)(b) of theAct as requested by the Plaintiff; furthermore, the

Costs awarded apparently relative to the Defendant in these circumstances


6/44

3

must reasonable be unjust, as are in these circumstances irrelevant to the

the motion under s. 52.1(1)(b) of theAct before the Honorable Court.

8. The learned Trial Judge erred in law, by erroneously adjudicating a nonexistent dispute and or conflict

9. Learned Judge erred by abuse of discretion of the Honorable Courtthereby unilaterally creating a Jurisdiction not therefore a MOTION filed

moreover outside of the Legislation which is MECHANICS LIEN ACT,

therefore the discretion has been exercised on a wrong principle, an

appellate tribunal may reverse it on that ground.

10. The learned Trial Judge erred in law by incorrect administration ofjustice thereby monotonously pursuing that which did not exist relative to the

Motion for Order of Continuance.

11.

Conundrum followed by emendation to this detrimental effect, thelearned trial judge continually interrupted the Plaintiff throughout the oral

submission, The Honorable Court further instructed the Plaintiff to proceed

with a oral submission satisfying only to The Honorable Court, and

consequentially not oral submission as originally planned by Plaintiff. The

Honorable Court having now suppressed the Plaintiff, furthermore the Court

continued (without argument from the Defendant) to express disbelief of the

Plaintiffs essential position, therefore and thereby causing an unfair hearing of

the Matter; the Plaintiff was not permitted to be heard according to the

Plaintiffs own conscience; the Honorable Court set the pace determining what

shall be relevant before the Court (if it pleases the COURT OF APPEAL:


7/44

4

please see Official Transcript page 3 line 2 line 5 provided for your

convenience - an exact excerpt follows below:) So its your responsibility to

convince me as to why there was nothing set down for trial within the year

period, which is what is set out in the Mechanics Lien Act. So if you would

confine your arguments for this purpose (as expressed by the learned

Trial Judge :quoted excerpt provided above) instructed/required the Plaintiff

to speak of nothing more than an accounting of the previous year, thereby

explaining/justifying why (as the Learned Judge continued accuse the Plaintiff

directly and or by allusion) the Plaintiff had done nothing to set down for

trial within the year period,. this begs the question as to why the Learned

Judge would believe that the two parties to the MECHANICS LIEN ACT and

potential COURT ACTION would not first seek REMEDY at DISCOVERY;

consequentially, and for that reason Parties would not require set down for

trial within the year period. On this matter of Court imposed criteria, the

Learned Trial Judge erred by "picks up the mantle" thereby not allowing the

Plaintiff to be heard according to his own conscience.

12. Regarding costs costsof $1500 to the Defendant in thesecircumstancesthese cited circumstancesdo not apply to the MOTION

FOR ORDERS FOR CONTINUANCE OF the ACTION.

13. May this Please the HONORABLE COURT OF APPEAL, PlaintiffAndre Murray a self represented litigant appeared before a hearing February

14, 2011, where Learned Trial Judge refused to adjudicate, (hear and settle) the

matter as a CONTINUANCE instead of Honorable Court granting, what

ought to have been a simple matter, consuming no more than, reasonably, 15

to 30 minute of COURT time, reasonably assisting in coordinating Plaintiff


8/44

5

and Defendants schedules that DISCOVERY may occur within the anticipated

time of Continuance time allocation the Learned Trial Judge instead of

dealing with the matter before the COURT did instead paradoxically pursue

inexplicable and or contradictory aspects of the file, that may nonetheless have

been true had the MOTION before the COURT not been only to grant a

CONTINUANCE of the ACTION, nevertheless, this aforementioned departure

by the Honorable Court is not jurisprudence therefore, not consonant with the

MOTION before the Court.

14. Instead of simply assisting the Plaintiff and Defendants to coordinatetheir schedules that they may determine how much time is required, further,

that both sides may attend DISCOVERY, thereby sincerely pursue and likely

find compromise, the Learned Judge instead, erroneously pursued erroneous

beliefs concerned with imaginary statutory limitations instead of simply

granting the CONTINUANCE.

15.

Learned Trial Judge while hearing the within subject matter did errorfurther demonstrating a palatable misapprehension of the jurisprudence relative

to the Section 52.1(2) Continuance of said Mechanics Lien Act/Action Law

in pursuance with the Mechanics Lien Act as this was the only cause before the

honorable Court. Despite well established Law the Learned Trial judge

demonstrated a Apprehension of Bias which redirected the Cause away from

SUBSTANTIVE into the SUBJECTIVE interests which possessed the Learned

Trial Judges mind an therefore interest throughout the entire Hearing of the

MOTION for ORDERS of CONTINUANCE of The ACTION which ought to

have been in pursuance with the Relative Acts instead the entire hearing was

verbally dominated by the Learned Judge consumed by irrelevant Matters


9/44

6

more conducive to a laboriously drawn out drama rather than simply

acknowledging a Request for a CONTINUANCE pursuant to Section 52.1(2)

as the Plaintiff and Defendant where forced to examine and articulate in their

words, what, to date, had been the REASON as to why this Matter had not

been set down for Trial.

16. Please consider that Parties sincerely pursuing Remedy should not andneed not be setting ACTIONS down for TRIAL except only after all

negotiations in pursuit of remedy, have been exhausted, furthermore this

reasonably was not the intention of the LEGISLATORS (to go to Trial) when

issuing relevant Laws governing matters such as a request for a

CONTINUANCE pursuant to Section 52.1(2) moreover, it is unreasonable

that law intends a harm or a wrong, therefore the evident misapprehension as

the Learned trial Judge verbalized, what must, therefore consequentially be

considered misapprehension of the intentions of the Law and the subsequent

palatable APPREHENSION OF BIAS by Learned trial Judge were consonant

with this persistent erroneous position. That all must enter into such conflictthat the only REMEDY therefore would be COURT ACTION. As in this

matter the parties have not yet been able to DISCOVER each other.

17. The DEFENDANT/RESPONDENT in this matter as early as year 2005was aware of documentation being in existence therefore indispensable and

evidentiary documents relative to the subject MECHANIC LIEN as being

located at the building 29 Marshall Street.


10/44

7

18. Defendant took measures therefore to deprive the Plaintiff of these asabove stated indispensable and evidentiary documents relative to the subject

MECHANIC LIEN and evidentially has succeeded by collaborating with a

Financial Investment Institution ROYAL BANK OF CANADA alleging to be

MORTGAGEE of a REGISTERED MORTGAGE against subject property;

who without NOTICE obtained a ex parte ORDER to EVICT the plaintiff

APPELANT in this Matter Andre Murray from a legal and lawful residential

leasehold of 29 Marshall Street, city of Fredericton. Above mentioned

ORDERS to evict where enforced in a forthwith manner thereby denying the

Plaintiff opportunity to leave with any personal possessions.

19. Interestingly the herewithin above stated eviction of Andre Murrayfrom his residential leasehold of 29 Marshall Street, City of Fredericton

occurred within six months of having registered subject Mechanics Lien and

only three days after having finally served the Mechanic Lien and NOTICE OF

ACTION upon the Defendant Betty Rose Danielski who had until that date

successfully avoided Serve of said COURT documents of NOTICE inter alia.

20. As colorful as the learned Madame Justice may understandablyperceive this matter to be, as the Plaintiff in that matter likely expressed by

submission before the Honorable Court, the Learned Trail Judge should

recognized the relevance and or lack thereof (in this case) of these superfluous

details, as found within the submissions offered to the Honorable Court by a

Self represented Litigant (who is sincerely, by attempting to put his best foot

forward appears to have offered more material than necessary).


11/44

8

21. The learned Judge in hearing the matter of the MOTION FOR ACONTINUANCE erred in Law in not comprehending that the only jurisdiction

reasonably granted the HONORABLE COURT was that of administrative

nature, therefore keeping the matter of the MECHANIC LIEN ACT and or

ACTION alive and ensuring that should each side not resolve differences

satisfactorily inter alia., ; alternatively the last resort of seeking REMEDY

before the HONORABLE COURTS would remain available.

Part IV

A concise statement of the argument, law, and authorities relied upon;

Hearing February 14, 2011.Hearing Rule

22. The learned trial judge erred in law in not recognizing the principal oflaw expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the

other side'). In this matter the learned trial judge, interrupted Plaintiff having

shortly started his oral submission, The Honorable Court further Ordered the

Plaintiff to proceed with a oral submission to pleasure of The Honorable Court,

consisting only of specific evidence, and not within the Plaintiffs conscience .

23. Black's Law Dictionary (8th ed. 2004), APPENDIX B at Page 5263Audi alteram partem. Hear the other side. No one should becondemned unheard.

24. The learned trial judge erred in law in failing to consider material,relevant evidence and argument as presented by the Appellant, at the February

14, 2011 Hearing, no person should be condemned, punished or have any

property or legal right compromised by a court of law without having heard

that person, in this case the Appellant.


12/44

9

Bias Rule25. The maxim nemo judex in causa sua debet esse - no person can judge acase in which he or she is party or in which he/she has an interest - underlies

the doctrine of reasonable apprehension of bias. The Learned Trial Judge failed

to understand the facts and arguments as presented by the Appellant and

instead pursued only the arguments and assertions as presented by the

Respondent, this predisposition of the Learned Trial Judge toward a particular

result, is such that a reasonable apprehension of bias is raised.

Reference:R. v. R.D.S., 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci andMajor JJ for an elaboration of this principle at paras. 109 -120, inclusive

26. The following is found at duhaime.org at the following address:http://www.duhaime.org/LegalDictionary/N/Nemojudexinpartesua.aspx

Nemo Judex In Parte Sua - Latin: no person can Judge a case in whichhe or she is party or in which he/she has an interest.

In Canada, the Supreme Court had occasion to reflect on the maxim in

Brosseau v Alberta Securities Commission [1989] 1 SCR 301, Justicel'Heureux-Dub:

"The maxim nemo judex in causa sua debet esse underlies the doctrineof reasonable apprehension of bias.. "As a general principle, this isnot permitted in law because the taint of bias would destroy theintegrity of proceedings conducted in such a manner."

27. With respect to reasonable apprehension of bias, the Appellant relies onstatements by Learned Trial Judge at the February 14, 2011 Hearing and also

the Decision as rendered June 24, 2011. Appellant alleges these references

demonstrate Learned Trial Judge advocated a particular view concerning the

purposes of the Mechanic Lien Act, R.S.N.B. 1973, c. M-6, and its


13/44

10

application, thereby demonstrated a predisposition toward a particular result

such that a reasonable Apprehension of Bias is raised.

28. The duty to act fairly includes the duty to provide procedural fairness tothe parties. That simply cannot exist if an adjudicator is biased. It is, of course,

impossible to determine the precise state of mind of an adjudicator who has

made a decision. As a result, the courts have taken the position that an

unbiased appearance is, in itself, an essential component of procedural fairness.

To ensure fairness, the conduct of the Court, has been measured against a

standard of reasonable apprehension of bias. The test is whether a reasonably

informed bystander could reasonably perceive bias on the part of an

adjudicator. There must be circumstances from which a reasonable man would

think it likely or probable that the Learned Trial Judge, would favor one side

unfairly.

Written Decision June 24, 2011.29. The Appellant asserts that the trial judge made a number of materialerrors in law while arriving at Decisions in respect of in the first place Should

the Court exercise its discretion and order a continuance under the

Mechanic Lien Act, R.S.N.B. 1973, c. M-6 (Act) for Murray? and in

respect of the Courts exercise of discretion regarding costs.

Evidence on Motions

30. The Court should only have considered the Affidavit evidencepresented by the Appellant; Affidavit evidence which was claimed to be

provided by the (Defendant) Respondent was never served upon the (Plaintiff)

Appellant according to the rules of Court, the Court should not accept same


14/44

11

(Reference:The Plaintiffs Submission 2, paragraph 150, supported by the

Evidence in Record) . Please consider the following Rules of Court, Rule 39.01

Evidence on Motions and Rule 39.04 Service of Affidavits

Rule 39.01 EVIDENCE ON MOTIONS AND APPLICATIONS39.01 By Affidavit(1) On a motion or application evidence may be given by affidavitunless directed otherwise by these rules or by order.

Rule 39.04 EVIDENCE ON MOTIONS AND APPLICATIONS

39.04 Service of Affidavits

Except for the person giving Notice of Application or Notice ofMotion, any person who intends to give affidavit evidence at the

hearing shall serve a copy of such affidavit

(a) on the person giving the notice, and

(b) on each person served with the notice, at least 4 days prior to thedate set for the hearing.

31. Black's Law Dictionary (8th ed. 2004) , Page 4288 defines the wordSHALL as follows:

SHALL shall, vb.

1. Has a duty to; more broadly, is required to . This is the mandatory sense thatdrafters typically intend and that courts typically uphold.

32. Rules of court Rule 39.04 is clear, any person who intends to giveaffidavit evidence at the hearing shall (is required to) serve a copy of such

affidavit a) on the person giving the notice, and (b) on each person served with

the notice, at least 4 days prior to the date set for the hearing, since the

Respondents, did not, then they should not benefitfrom the same affidavit..

Discretion


15/44

12

33. Black's Law Dictionary (8th ed. 2004) defines Abuse of Discretion asfollows:

abuse of discretion.

1. An adjudicator's failure to exercise sound, reasonable, and legaldecision-making.2. An appellate court's standard for reviewing a decision that is assertedto be grossly unsound, unreasonable, illegal, or unsupported by theevidence.

34. The learned Trial Judge erred in law, in irregularly applying the CourtsDiscretion. The Appellant contends, The Learned Trial judge did display

Abuse of Discretion. The Learned Trial Judge instead rendered a decision

which is unsupported by the evidence and clearly on a erroneous finding of a

material fact. A court must avoid to substitute its view on issues of propriety of

purpose and the relevance of the factors considered.

35. The Appellant contends the Learned Trial Judges decision lacked thedegree of justification, transparency and intelligibility required by the

unreasonableness standard of review and considered a unreasonable decision.Reference: In Canada Revenue Agency v. Telfer, 2009 FCA 23

(CanLII), Justice EVANS J.A, reviewed the unreasonableness

standard of review, from Paragraph 29 through to 42.

Reference: In Baker v. Canada (Minister of Citizenship and

Immigration), [1999] 2 SCR 817 Justice Iacobucci J., stated

regarding exercise of discretion being unreasonable from

Paragraph 57 through to and including paragraph 68:

An unreasonable decision is one that, in the main, is not supported byany reasons that can stand up to a somewhat probing examination.Accordingly, a court reviewing a conclusion on the reasonablenessstandard must look to see whether any reasons support it. The defect, ifthere is one, could presumably be in the evidentiary foundation itself or


16/44

13

in the logical process by which conclusions are sought to be drawnfrom it.

Rule 1.03 (2)

36. The learned trial judge erred in law in not keeping with the generaldirection as found expressed in the New Brunswick Rules of court Rule 1.03

(2) to secure the just, least expensive and most expeditious determination of

every proceeding on its merits, by not allowing the Continuance, based on the

facts of the subject case.

Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) (per

Justice H. H. McLellan) stated his view regarding the discretion of theTrial Judge and also his view that the Court of Appeal has reaffirmedthat matters of civil procedure should be decided on their substance andmerits. Please see: Discretion of Trial Judge page 6 9

37. Refusal by the Learned Trial Judge to grant the requested Continuanceresulted from the application of a wrong principles of law. Refusal to grant the

requested Continuance did not result in securing the just, least expensive and

most expeditious determination of the proceedings on the merits as envisioned

by Rule 1.03(2).

Reference: Michaud v. Robertson, 1992 CanLII 4709 (NB CA)Stratton, C.J.N.B., regarding application of Rule 1.03(2)

38. Black's Law Dictionary (8th ed. 2004), defines Justice as follows:JUSTICE - justice. 1. The fair and proper administration of laws.

39. The fair and proper administration of Justice in Law requires of theCourt of Queens Bench Trial Division to apply the Rules of Court, for a

determination of every proceeding on its merits. A determination should be in

keeping with the general direction contained in Rule 1.03(2) of the New

Brunswick Rules of Court, which is reproduced as follows:


17/44

14

CITATION, APPLICATION AND INTERPRETATION:

1.03 Interpretation

1.03(2) These rules shall be liberally construed to secure the just, leastexpensive and most expeditious determination of every proceeding onits merits.

40. The learned trial judge erred in law in not keeping with the generaldirection as found expressed in the New Brunswick Rules of court Rule 1.03

(2), in not granting the Continuance, as requested. Furthermore, on the

merits is defined by legal-dictionary.com at the following internet web

address: (http://legal-dictionary.thefreedictionary.com/on+the+merits) on the

merits:

on the merits adj. referring to a judgment, decision or ruling of a

court based upon the facts presented in evidence and the law applied to

that evidence. A Judge decides a case "on the merits" when he/she

bases the decision on the fundamental issues and considers technical

and procedural defenses as either inconsequential or overcome.

Example: An attorney is two days late in filing a set of legal points and

authorities in opposition to a motion to dismiss. Rather than dismiss the

case based on this technical procedural deficiency, the Judge considers

the case "on the merits" as if this mistake had not occurred.

41. The trial judge erred in law in not ordering a Continuance based on thefact a Continuance was requested. The duty of the Court in this case was to

ensure, that justice is done, it is most unfair to deprive the Appellant of the

opportunity to have the matter heard on the merits.

42. The Appellant could not schedule a meaningful Discovery pursuant tothe Mechanics Lien Act nor reasonably set the matter down for Trial, without

first regaining possession of relevant evidentiary inter alia Contractual

documents. Appellant by Filed Submission argued that to do justice in this


18/44

15

particular case requires a balancing of the prejudice to both parties tentatively

resulting from the Courts decision to grant or refuse the Appellants

Application. The Court failed to balance the prejudice to both parties.

43. The Appellant contends that as a general principle, the Rules of Courtshould not be used to prevent the delivery of rights; nor should they be used to

preclude the enforcement of claims derived from substantive law. Moreover,

a Court should interpret and apply the Rules of Court to ensure, to the greatest

extent possible, that there is a final determination, unless the application of the

rules would result in a serious prejudice or injustice. In this case, granting the

continuance would have preserved the Status quo, maintained each Partys

standing at the time, to the prejudice of neither Party and would have allowed

the parties an opportunity to resolve the matter fairly.

Material misapprehension of the evidence

44. Factual findings made by the Learned Trial Judge, should not beentirely accepted, Appellant will demonstrate unreasonable findings, numerousincidents of material misapprehension, tainted by a failure to consider relevant

evidentiary material, The misapprehension of the evidence must go to the

substance rather than to the detail. It must be Material rather than peripheral,

and the errors thus identified must play an essential part not just in the

narrative of the judgment but in the reasoning process resulting in a Decision.

If an Appellant can demonstrate that any Decision is based on

Misapprehension of Evidence it must follow that the Appellant has not

received a fair trial, and was the victim of a miscarriage of justice.


19/44

16

45. Erroneous findings and subsequent rulings made by the Learned TrialJudge which demonstrated Material Misapprehension of the evidence:

Setting the matter down for Trial

Moving the matter along

Reason for the Delay

Prejudice

Ownership of Property

Mechanics Lien Documents

Recovery of Documents

46. Example 1 - Page 2, Paragraph [1]On June 8, 2010 Murray filed a motion ..

Fact: April 20, 2010, Appellant filed a Motion requesting that under section

52.(1)(b) of the Mechanics Lien Act R.S.N.B. 1973, c.M-6 be continued.

47. Example 2 - Sentience 2 Page 5, Paragraph [11]:He filed his lien April 21, 2009.

Fact:The Appellant did file the Claim for Lien April 16, 2009.

48. Example 3 - Sentence 4 Page 6, Paragraph [12]: filed the lien on April 21, 2009 he has not proceeded .

Fact: The Appellant did file a Mechanics Lien on April 16, 2009.

49. Example 4 - Sentence 5 Page 6, Paragraph [12]:He has failed to respond to a demand for particulars.

The above quote is false, Appellant did appropriately respond to a demandfor particulars, according to rules of Court filed in relation to that, withinthe Court Record the following:

- AFFIDAVIT OF SERVICE (FORM 18B), Court File Date Stamped

February 08, 2011, Service of STATEMENT OF PARTICULARS (FORM

27M) Dated the 10th day of June, 2010.


20/44

17

- Affidavit 3 of Andre Murray Dated February 4, 2011, had therein attached

as Exhibit R a Copy of STATEMENT OF PARTICULARS (FORM 27M)

Dated the 10th day of June, 2010.

- In the Plaintiffs Submission #2 at paragraph 21, the Plaintiff did state On

the 10th day of June, 2010, . I Plaintiff Andr Murray filed a

STATEMENT OF PARTICULARS (FORM 27M) .

- In the Plaintiffs Submission #2 at paragraph 22, the Plaintiff did state

Plaintiff Andr Murray did serve, STATEMENT OF PARTICULARS (FORM

27M) Dated the 10th day of June, 2010.

50. Example 5 - Sentence 2 Page 6, Paragraph [13]:She no longer owns this property.

Fact: Court was provided with a Copy of Affidavit 2 of Andre Murray Dated

May 31st, 2010 attachments Exhibit D- Service New Brunswick Print out of

Parcel Information / Property Information report, Dated January 8, 2009 and

Exhibit E- a Deed Dated Oct. 24, 2000, indicate Respondent as the Owner.

Setting the matter down for Trial51. Page 2, Paragraph [2]

Murray did not set the action down for trial within oneyear as required by s. 52.1 of theAct..

The Mechanics Lien Act R.S.N.B. 1973, c.M-6 does not require the

Action be set down for trial within one year, as erroneously stated by the

Learned Trial Judge, merely that one of the two conditions, either subsection a)

or subsection b) of Section 52.1 of theMechanics Lien Act, be complied with

so that the Mechanics Lien shall not be deemed to be discontinued. The act

of Application to the Court for a Continuance, expresses the Appellants desire

to resolve the matter on its merits and therefore the Court should, absent some


21/44

18

compelling reason, grant the requested Continuance, thereforeto see that

justice is, done between the Parties. Neither the Rules of Court nor the

Mechanics Lien Act, state criteria for the Court to consider in granting a

Continuance, nor conditions which must be met; application is sufficient when

made and Served on the Respondent.

Moving the matter along52. Sentence 4, Page 6, Paragraph [12] of Decision:

Since he filed the lien on April 21, 2009 he has not proceeded to

move the matter along in any substantive or meaningful way.

53. sentence 4, Page 7, Paragraph [14]: has failed to provide reasonable, coherent, ..

54. Sentence 7, Page 6, Paragraph [15] and nothing has happened on this matter since were filed.

55. The Leaned Trial Judge error in law: misapprehension of the matter ofPlaintiff not moving the Action along is unreasonable, based on a Material

Misapprehension of the Evidence before the Court, and or tainted by a failureto consider relevant evidence material; Appellant could not schedule a

meaningful discovery without the Mechanics Lien Contract documents, nor if

necessary, could the Appellant set the matter down for Trial without assuring a

irrecoverable prejudice and a definite loss for the Appellants Cause. The

subject Contracts were integral to evidencing the merit of the Plaintiffs case.

Further, the Appellant did appear at no less than 5 separate Court of Queens

Bench, Moncton Trial Division, hearings (between December, 2009 March 23,

2011) filing under Rule 44 in an attempt to gain access to the subject

Mechanics Lien Act Action documents. The Appellant did provide argument

of this fact, one example is the Plaintiffs Submission 2,Paragraph 51 and 52 :


22/44

19

May this please the Honorable Court the Plaintiff in an attempt toretrieve the here within above mentioned documents indispensable to

the Plaintiffs successful DISCOVERY has attended three separateCourt hearings involving the matter of access to the here within abovementioned contractual documents.

56. The Appellant did send Copy of (Plaintiff) Andre Murrays letter to theRespondent, requesting documents pursuant to the Mechanics' Lien Act,

R.S.N.B. 1973, c. M-6, section 32(1), Dated May 31, 2010 and four separate

requests to Consent to a Continuance, all of which, as advancing the Action

along was the extent of what was available to the Plaintiff without the

necessary Contract Documents.

57. Neither, the New Brunswick Rules of Court, or the Mechanics' LienAct, R.S.N.B. 1973, c. M-6 compels the Appellant, nor any other Applicant to

have filed or served the subject Mechanics Lien Contracts.

58. The Plaintiffs Submission 2 at paragraph 31 to 48 details the actionstaken by the Appellant following the October 23, 2009 eviction.

.returning to the Court of Queens Bench, Moncton Trial Divisionattending on the Motion to Rescind Orders of October 20th, 2009 at thefollowing dates . the Plaintiffs RBC has managed to successfullyMotion for Adjournment of same: 14 day of December 2009, January18, 2010, March 22, 2010

Reason for the Delay59. Sentence 1 Page 6, Paragraph [12]:

Murray has not provided this Court with a valid reason .

60. Page 7, whole Paragraph [14]:To allow Murray would essentially condone his delay .


23/44

20

61. How could the Appellant have reasonably moved the Action alongwithout having first served and notified the Defendant in the matter? Without

Service of the relevant Documents, the Action could not continue past the 6

month time frame allowed by the rules of Court (Rules of Court, Rule 16.08

Time for Service) .The Appellant had only a four day window, between

service of the Defendant with the Mechanics Lien Documents (October 19,

2009) and being vacated (October 23, 2009) without notice, from the location

of the Mechanics Lien Contract Documents. From that time onward the

Appellant has tirelessly pursued remedy by way of Court Order, for retrieval of

the Mechanics Lien Contract documents, attending five separate hearings in

the Moncton Courts, in an attempt to retrieve these subject documents. The

reason for the Appellants delay was the standing October 20, 2009 Court

Order, from the Judicial district of Moncton, which barred the Plaintiff from

accessing the Mechanics Lien Contract Documents. It is unreasonable to state

that an Order of the Court of the Judicial District of Moncton, is not a

valid reason to not retrieve the subject documents, following six months of

evasion of service on the part of the Defendant. Further, the Appellant didsend Copy of (Plaintiff) Andre Murrays letter to the Defendant requesting

documents pursuant to the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6,

section 32(1), Dated May 31, 2010, which is under the Mechanics Lien Act, to

which the Defendant has never responded.

Prejudice62. The granting of a Continuance of the Mechanics Lien Action, is aprejudice to neither Party, because both Parties have the opportunity to present

the Merits of the Case before the Court and may achieve a just decision. The

granting of a Continuance of the Mechanics Lien Action, maintains the status

quo, by extending the time within which the Parties may resolve their dispute.


24/44

21

The Learned Trial Judge made an error in Law, by not Granting the

Continuance under these circumstances.

63. Page 6, whole Paragraph [14]:There . Murray has failed to demonstrate .

64. Page 4, Paragraph [9]According to Mr. Justice Grant inJ. K. ... ..

65. Fact: there were many arguments and case law advanced by theAppellant, for the Learned Trial Judge to consider, but the Court, relied on

only one case J. K. Dineen Ltd. v. Morris Music Ltd., 2004 NBQB 43, further,

based the Courts decision on one set of criteria only, which favors the

Defendant, the Court must consider the reasons for the delay as well as

whether there is any prejudice to the Defendant, Danielski. The Learned

Trial Judge demonstrated that she did not appreciate the argument advanced by

the Appellant, and failed understand the legal principles relied on in support of

that argument, inter alia, that decisions of the Court must consider the balance

of prejudice to both parties and all other relevant factors to make a just

decision.

66. Sentence 3 Page 6, Paragraph [13]:Murray will not be deprived of his day in court by a denial of an

extension of time under the Mechanics Lien Act.

67. The Appellant has been prejudiced by a denial of an extension oftime under the Mechanics Lien Act The Leaned Trial Judge made an error

in law, the Act of the Learned Trial Judge of denying the Motion for a

Continuance, terminates the Mechanics Lien Action, therefore the Plaintiff

looses the opportunity to retain a hold on the tangible assets which is the


25/44

22

Marshall Street building and property into which the Appellant has $80,000

investment. For the Appellant to have his day in court, as stated by the

Court would require the Respondent, to be Defending a new Action for Breach

of Contract, which would place the Defendant in relatively the same position

without the tangible Marshal Street assets to secure the Rights of the

Appellant. Why would the Court suggest prejudice to the Defendant as being

one of the reason for not granting the Continuance, the same or similar

Prejudice would be replaced in another Action, so that the Appellant can have

his day in court to resolve these unsettled matters.

Ownership of Property

68. Sentence 1 and 2 Page 5, Paragraph [13]:The Defendant . She no longer owns this property.

69. Sentence 1 and 2 Page 5, Paragraph [15]:She does not own the property and has not since July 16, 2009 .

70. Sentience 7 Page 5, Paragraph [11]:It appears it was properly foreclosed on by the Royal Bank.

71. The Leaned Trial Judge had made an erroroflaw, or a significantmisapprehension of the evidence or failed to review and understand the

relevant evidence. The Marshall Street Property is still Registered in the name

of the Defendant. The Learned Trial Judge having heard the MOTION for

ORDERS GRANTING A CONTINUANCE has not reasonably been

presented with evidence of the Marshall Street Property being properly

foreclosed on by the Royal Bank. Quite to the contrary Court has been

presented with evidence of the Marshall Street Property being, not properly

foreclosed on by the Royal Bank, considering Affidavit of Andre Murray


26/44

23

Affidavit 3 of Andre Murray Dated February 4, 2011, Exhibit S. Copy of

NOTICE OF DISCONTINUANCE (FORM 25A), Court of Queens Bench

Moncton Trial Division, File Date Stamped November 5, 2010, and Exhibit

T. Copy of a letter, by facsimile, from the Office of Stewart McKelvey, on

behalf of Solicitor representing 501376 N.B. Ltd., a body corporate, Solicitor

Hugh J. Cameron the acting Agent who had previously bid at auction, on

behalf of 501376 N.B. Ltd., a body corporate, for the 29 and 31 Marshall

Street, in the City of Fredericton, a Residential Duplex Property, PID No.

01548650 and PAN 506975. The scheduled July 16, 2009 Mortgage Sale was

without Notice to the Appellant, a registered Lien Holder, as required by the

property Act. Lastly the Marshall Street Property is still in the name of the

Respondent.

The Court was provided with a copy of Affidavit 2 of Andre Murray Dated

May 31st, 2010 which had as Exhibit D- a Copy of a Property Information

report, dated Aug 8, 2009 and - Exhibit E- Copy of a Deed Dated October

24, 2000. The Appellant did check as recently as June 27, 2011 and the subject

property is still registered in the name of the Respondent.

Mechanics Lien Documents72. Sentence 6 Page 6, Paragraph [12]:73. The Appellant did file every available document in the possession ofthe Appellant at the time, but the Mechanics Lien Contract Documents are

what is necessary to Move the Action along to Discovery or if necessary Trial,

without the Mechanics Lien Contract Documents it is illogical to move

forward and fatal to the Appellants interests.

74. Sentence 4 Page 6, Paragraph [13]:


27/44

24

When Murray decided to file the lien he must have had .

75. The Appellant did have all the documentation together in order toproceed with the lien at the beginning of the Action, and only because of the

evasion of Service by the Respondent, and a Court Order baring the Appellant

from accessing the documents, which resulted in the Appellant requesting of

the Court a Continuance, so that the Appellant could in all fairness have all the

documentation together in order to proceed with the lien.

76. Sentience 3 and 4 Page 5, Paragraph [11]:At that point he should have known .

77. The Appellant was in possession of the Contract documents at thattime, but did not know of there would be any need for Court proceeding,

because had the Respondent honored the contracts, there would have been no

need for Court Proceedings of any kind, whether Discovery or if necessary a

Trail.

78.

Sentience 5and 6 Page 5, Paragraph [11]:In fact the eviction notice he had ample time .

79. The Appellant was served a Ex parte Order of the Judicial District ofMoncton Court and forthwith (without the opportunity to gather the

Appellants belongings) evicted from the 29 Marshall Street Property on the

same day October 23, 2009 only four days after the Defendant was served with

the relevant Mechanics Lien Action Court documents, on October 19, 2009.

The Appellant attempted for almost six months to served the Respondent

without success, and the day after the successful Service of Mechanics Lien

Action Court documents, a Court hearing was conducted Ex Parte, in the


28/44

25

Judicial district of Moncton without notice to the Appellant, the results of

which where not revealed to the Appellant until the Sheriffs arrived at 29

Marshall Street to Serve the subject eviction Order. The Appellant had in fact

only 4 days to act on the Mechanics Lien Action which did not need further

actions until a further six months time. The Courts erroneous view that the

Plaintiff had ample time to gather together all of his important

documents, is completely contrary to the evidence and presented argument.

The Learned Trial Judge failed to review and understand the relevant evidence

and failed to make the necessary findings of fact.

80. Sentence 2 and 3 Page 6, Paragraph [12]:In an affidavit executed on April 20, 2010 Murray alleges that hehas documented evidence ...

81. Fact: the Appellant has provided the Court with all the documentationwhich could be obtained by other means, and of the documents listed in the

Plaintiffs April 20, 2010 Affidavit, a paragraph 27, the documents as listed as

subparagraph b, c, e, f, and g have been provided, the only documents which

have not yet been provided are subparagraph a and d which are the subject

Contracts and namely paragraph a being the Mechanics Lien Contracts. The

Appellant was given no notice of the October 20, 2009 Ex parte Moncton

Eviction Hearing, nor told the results of that same Hearing before the Sheriffs

arrive at the Appellants door, causing an immediate eviction (the Appellant

was unreasonably given no time to gather the Appellants belongings).

Reference: (1) The Plaintiffs Submission 2 at paragraph 51

Reference: (2) The Plaintiffs Submission 1 Paragraph 29 and 30


29/44

26

Reference: (3) The Plaintiffs Submission 1 at paragraph 19 to 23

states the following :The Appellant was given no notice of the

Mortgage Sale, before the Mortgages Sale occurred.

82. Sentence 3, Page2, Paragraph [3]There is no detail provided in affidavit 1 this matter.

83. Fact: the material that was necessary to proceed to Discovery isContractual Agreements to furnish material and or Supplies to be used in

improvement for the premises, civic address 29 and 31 Marshall Street at thecity of Fredericton. Without which, the Plaintiff has no substantive evidence

and documents relevant and absolutely necessary to schedule an

examination for discovery or if absolutely necessary move the Action to Trial.

Without the subject contractual documents to examine, consequently the

Plaintiff would be doomed to failure at discovery or if necessary a trial.

Recovery of Documents

84.

Sentience 1 Page 5, Paragraph [11]

85. Fact: The Appellant did provide a copy of all the documents whichwere available to him at the time, namely:

Copy of a Power of Attorney dated November 14, 2002 Copy of a Deed Dated October 24, 2000 Copy of Lease for 29 Marshall Street 31 Marshall Street property,

Dated September 1, 2005 Copy of REVOCATION OF POWER OF ATTORNEY Dated May

29th, 2008

Copy of the Order from the Court of Queens Bench Trial Division,Moncton, Dated October 20th, 2009

86. Appellant did not have were contractual documents with which toprovide further information of said documents, Further, The Plaintiffs


30/44

27

Submission 2: Paragraph 31 to 48 details some of the actions taken by the

Appellant in attempting to retrieve the subject documents. No less than 5

separate, Moncton Trial Division, hearings (December, 2009 March 23, 2011)

attempting to gain access to the subject substantive documents, as more fully

detailed above. The Appellant has provided argument of this fact, one example

is the Plaintiffs Submission 2, Paragraph 51 and 52.

87. Learned Trail Judge has reasonably demonstrated Omissions in Reasonfor judgment, that which amount to material error, because the necessary

evidence, was incidentally left out, giving rise to a reasonable belief the trial

judge has forgotten, ignored or misconstrued evidence in a way that

consequentially affects the Honorable Courts final conclusions.

Reasonable Apprehension of Bias

88. Natural justice requires administrators to adhere to fair decisionprocedure. The bias rule - decision maker must be impartial and must display

no reasonable apprehension of bias. Justice must not only be done, but must beseen to be done. Appellant contends and will demonstrate that a reasonable

apprehension of bias arose by the fact that the Learned Trial Judge only

accepted argument and evidence which favored the Respondents position,

further, Learned Trial Judge verbalized blatantly erroneous statements again

based on erroneous information, moreover, not consonant with the facts of this

ACTION. Please note: Impartiality is a principle of Justice holding that

decisions should be based on objective criteria, rather than on the basis of bias,

prejudice, or preferring the benefit to one person over another for improper

reasons.


31/44

28

89. Example: At Page 3, Paragraph [4] of the Court Decision:The second affidavit does not contain any further clarification of

the necessary material needed to proceed to a discovery. The onlyhelpful additional information.

90. Learned Trial Judge reveals Reasonable Apprehension of Bias findingThe only helpful additional information is found in paragraph 16, Learned

Trial Judge unilaterally highlighting information therefore appearing to counter

to the Appellants position thereby favoring the Respondent and clearly

dismissing the remainder of the relevant evidence in the very same Affidavit.

91. Sentence 4, 5 and 6 Page 6, Paragraph [13]:Murray He must provide reasons for the delay.

92. Appellant observes Reasonable Apprehension of Bias exists becauseLearned Trial Judge only accepted argument and evidence favoring

Defendants position, Learned Trial Judge made erroneous statements

evidentially based on this above mentioned incorrect argument and evidence

information, entirely contrary to the facts of the case. The Court insistedAppellant must; provide reason for delay, which in fact the Appellant already did.

93. Page2, Paragraph [5]Murray filed a third affidavit very little to clarify matters.

94. Learned Trial Judge displayed Reasonable Apprehension of Biasregarding Affidavit 3 of Plaintiff Andre Murray Dated February 4, 2011,

contrary to the erroneous position as stated by the Honorable Court does in fact

provide, inter alia relevant documents: Exhibit R. Copy of STATEMENT

OF PARTICULARS (FORM 27M) Dated the 10th day of June, 2010 and


32/44

29

Exhibit S. Copy of NOTICE OF DISCONTINUANCE (FORM 25A), Court

of Queens Bench Moncton File Date Stamped November 5, 2010.

95. Plaintiff Andre Murray Affidavit 3 Dated Feb. 4, 2011, Paragraph 13)I Andre Murray . Immediately began to attempt Service uponthe named Defendant Betty Rose Danielski, was avoiding Service

Further, at Paragraph 15)

I Andre Murray Plaintiff after many attempted andunsuccessful hire a Professional Process Server, who also confirmedto the Plaintiff that the Defendant was indeed avoiding Service.

Paragraph 13 and 15 are to clarify matters the reason almost six months

transpired as avoidance of Service before successful Service of Court

Documents inter alia, upon Defendant. Learned Trial Judge: it offers very

little to clarify matters is misapprehension. Learned Trial Judge further

failed to acknowledge letters sent to the Defendant by Plaintiff therefore

requesting Defendant consent to Continuance of the Action.

96. Sentence 5, 6 and 7 Page 6, Paragraph [13]:97. Learned Trial Judge displayed Misapprehension/ReasonableApprehension of Bias regarding above It should be remembered that

Danielski did not directly have any business dealings with Murray. also

her Power of Attorney Learned Trial Judge unilaterally providing argument

arriving at conclusions not provided by AFFIDAVIT / SUBMISSIONS nor by

brief on the RECORD. Learned Trial Judge selectively isolated material /

highlighting information NOT AT ISSUE to detract from Plaintiffs position.

98. Page 6, Paragraph [14]:


33/44

30

There will be prejudice to the Defendant Murray

has failed to demonstrate no prejudice by allowing a

continuance . It will prejudice the Defendant Defendant that she will suffer prejudice.

99. Learned Trial Judge displayed Reasonable Apprehension of Biasaccepting only arguments from DEFENDANT therefore prejudice against the

DEFENDANT yet could not nor pointed to any evidence in existence.

100. Sentence 7, Page 5, Paragraph [11]:

101.

Learned Trial Judge exhibited Reasonable Apprehension of Bias therebyerroneously declaring that subject Marshall Streetproperty was properly

foreclosed on by the Royal Bank. Honorable Court had insufficient evidence

to determine this as fact, moreover, the Court had evidence confirming the

contrary:

a) purchaser of Mortgage had withdrawn form the auction.

b) foreclosure prerequisites POWER OF SALE not executed no NOTICE

102. Appellant contends a Reasonable Apprehension of Bias, that the learnedTrial Judge only accepted argument/evidence favoring Defendants position,

further Learned Trial Judge made statements within the decision which

reasonably must be misapprehension of Law according to the facts of the case.

Costs103. Appellant will demonstrate that a grossly unfair allocation amounts toan error of principle, further, exercise of Trial Judges discretion in this matter

was affected by error in principle and or by misapprehension of the facts.


34/44

31

104. Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The lawnever works an injury, or does a wrong. Appellant claims Learned Trial Judge

exercised discretion with regards to Cost awarded in favor of the Defendant are

manifestly without merit, therefore injustice would result if the Cost award is

allowed to stand.Abuse of Discretion is defined by Lectlaw at the following

website: (http://www.lectlaw.com/def/a004.htm)

ABUSE OF DISCRETION

When a court does not apply the correct law, or if it rests its decision on

a clearly erroneous finding of a material fact. U.S. v. Rahm, 993 F.2d1405, 1410 (9th Cir.'93). A court may also abuse its discretion whenthe record contains no evidence to support its decision. MGIC v.Moore, 952 F.2d 1120, 1122 (9th Cir.'91)

.. judicial discretion must be exercised fairly and impartially, and ashowing to the contrary may result in the ruling being reversed as anabuse of discretion.

105. The learned Trial Judge exercised discretion but did so, in a way that isclearly against logic and the evidence. An improvident exercise of discretion is

an error of law and grounds for reversing a decision on appeal. Abuse of

Discretion defined by Cornell Law University Website:

(http://topics.law.cornell.edu/wex/abuse_of_discretionAbuse of discretion)

A judgment will be termed an abuse of discretion if the adjudicator hasfailed to exercise sound, reasonable, and legal decision-making skills.

106. Learned trial Judge erred in law in application of judicial discretion,thereby exhibiting partially, such as in this case may result in Ruling reversal.


35/44

32

107. Manifest Abuse of Discretion as defined by: duhaime.org athttp://www.duhaime.org/LegalDictionary/M/ManifestAbuseofDiscretion.aspx

InMalicoat, the Indiana Court of Appeal preferred:

"[M]anifest abuse of discretion ... is when the trial court's

decision is clearly against the logic and the facts of the case."

inBitterrooters, the Montana Supreme Court used these words:

"A manifest abuse of discretion is one that is obvious, evident,

or unmistakable."

108. Manifest Abuse of Discretion must be obvious, evident, and orunmistakable, as in this case Appellant alleges to have suffered. Since The law

will not intend a wrong., Bacon's Maxims (17, reg. 3). Respondent for six

months avoided Court Service also conspiring with RBC initiating a

foreclosure evict (vacant possession) of Appellant, further, refused to produce

documents and finally denied four requests of Consent to a Continuance, and

despite all thisuncooperative behavior, Defendant was awarded Costs.

109. The Appellant, desiring a cost effective resolution did request consentof Respondent to a Continuance of the subject Mechanics Lien Action

a) May 31, 2010;

b) November, 22nd, 2010;

c) November 23, 2010

d) January 20, 2011.

110. The Appellant without exception adhered to the Rules of Court inpursuance of the Mechanics Lien Act. WithinPlaintiffs SUBMISSION 2, is

a 30 page Should the Defendant pay costs of the within Motion? Appellant


36/44

33

further requested an Order that Defendant pay, forthwith, costs of the subject

Motion consequential of the Defendants, non-compliance with Rules of Court.

The Appellant, in this matter, has provided ample argument, as evidenced by

the Record of a history of the Defendant in that matter, of non compliance with

the Rules of Court, furthermore, the Appellant relies upon the Respondents

Solicitors adherence to The Law Society of New Brunswicks Code of

Professional Conduct, CHAPTER 15 Section 2 (iii), 2 (v), 2 (vii) and Section

4, consequently, the Appellant requested of the Court of first instance, to

consider the above when ruling as to costs of the subject Motion. To this effect

the Appellant provided the Honorable Court with itemized list of Rules of

Court which the Respondent has a history of non compliance, inter alia, Rules

of Court, Rule18.02, Rule 18.03, Rule 20.01, Rule 20.02, Rule 27.03, and Rule

27.04. Furthermore, Appellant provided a letter to the Respondent requesting

Documents pursuant to the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6,

section 32(1), Dated May 31, 2010, although the Act compels the Respondent

to respond, Respondent did not.

111. Appellant (as Plaintiff) provided argument that Costs should beawarded. It follows: lay litigants who demonstrate that they devoted time and

effort to do the work ordinarily done by a lawyer, retained to conduct the

litigation, and that as a result, lay litigants, by foregoing remunerative activity,

incurred an opportunity cost; which included:

a) a Record on Motion Book 1

b) subsequent Record on Motion Book 2,

c) The Plaintiffs Submission Book 1 (90 pages)

d) Plaintiffs Submission Book 2 (290 pages), including 32 listed

authorities,


37/44

34

e) a Brief for the Courts convenience

f) Oral presentation (not permitted to present the Honorable Court)

Hearing of the matters February 14, 2011.

Appellant provided voluminous submissions, affidavit evidence with exhibits,

substantiating the Plaintiffs argument. In contrast the Respondent allegedly

provided nothing, other than a single Brief since the first Hearing June 10,

2010. Appellant contends: no work equals no merit, further, equals no costs.

112. Manifest Abuse of Discretion: Court decisions unsupported byevidence and based on a erroneous findings of a material fact, in this matter it a

disservice to the administration of justice occurs if Award of Costs stand.

Regarding Order Sought113. In Noble Securities Holding Limited v. Tremblay, 2007 NBCA 91(CanLII), J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK,

explained why the Court may render any decision and make any order which

ought to have been made, and may make such further or other order as the case

may require, at paragraph 12 as follows:

[12] Under Rule 62.21(1) this Court may render any decision andmake any order which ought to have been made, and may make suchfurther or other order as the case may require. In our view, it isappropriate to extend the deadlines set by Rule 37.06(1) and to rescindthe decision of January 23, 2006 pursuant to that Rule.

114. This full section 62.21 of the Rules of Court of New Brunswick isquoted below:

62.21 Powers of Court of AppealTo Draw Inferences and Make Decisions


38/44

35

(1) The Court of Appeal may draw inferences of fact, render anydecision and make any order which ought to have been made, and may

make such further or other order as the case may require.

115. In consideration of the following Appellant Andre Murray respectfullyrequests, that this Honorable Court of Appeal under Rule 62.21(1) grant a

Continuance of the Mechanics Lien Action pursuant to section 52.1 (2) of the

Mechanics Lien Act.

Part V

A concise statement of the order sought from the Court of Appeal, including

any special disposition with regard to costs;

1. The appellant asks that the decision of Honorable Madame

Madam Justice J. L. Clendening, Queens Bench Trial Division, Judicial

District of Fredericton, Dated the 24th day of June, 2011, be in its

entirety set aside and that a new hearing be held.

2. The Appellant asks that this Court Order a continuance under the

Mechanic Lien Act, R.S.N.B. 1973, c. M-6, providing sufficient time

for the parties to hold a Discovery, after which, if settlement cannot beachieved between the Parties, then the matter be set down for Trial and

that this Court Order costs in favor of the Appellant.

3. The Appellant asks that this Court Order costs in favor of the

Appellant, regarding this Appeal.

ALL OF THIS respectfully submitted at the City of Fredericton, NewBrunswick, this . . . . day of . . . . . . . . . . . . . . . , 2011

______________________________

ANDRE MURRAY APPELLANT


39/44

36


40/44

36

a) Schedule A - A list of authorities in the order referred to in theSubmission; and___________________________________________

1. Reference: Maxim Audi Alteram Partem (Latin; literally 'hear the otherside')

2. Reference: Black's Law Dictionary (8th ed. 2004), APPENDIX B atPage 5263

Audi alteram partem. Hear the other side. No one should becondemned unheard

3. Reference: principle of natural justice is found at wikipedia.org addressprovided below:

(http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua)

4. Reference: Audi Alteram Partem Latin; literally 'hear the otherside'.duhaime.org address provided below:

http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx

5. Reference: The maxim nemo judex in causa sua debet esse - no personcan judge a case in which he or she is party or in which he/she has an

interest

6. Reference:R. v. R.D.S., 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci andMajor JJ for an elaboration of this principle at paras. 109 -120,inclusive

7. Reference: Nemo Judex In Parte Sua. The following is found atduhaime.org at the following address:

http://www.duhaime.org/LegalDictionary/N/Nemojudexinpartesua.aspx

8. Reference: wikipedia.org at the following address:http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua

9. Reference: Black's Law Dictionary (8th ed. 2004), Page 4288 definesthe word SHALL

10.Reference: Black's Law Dictionary (8th ed. 2004) defines Abuse ofDiscretion


41/44

37

11.Reference: Abuse of discretion is defined at the following address:http://legal-dictionary.thefreedictionary.com/Abuse+of+Discretion

12.Reference: Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NBQ.B.) (perJustice H. H. McLellan) stated his view regarding the discretion of the

Trial Judge and also his view that the Court of Appeal has reaffirmed

that matters of civil procedure should be decided on their substance andmerits. Please see: Discretion of Trial Judge page 6 9

13.Reference: Black's Law Dictionary (8th ed. 2004), defines Justice14.

Reference: Black's Law Dictionary (8th ed. 2004) defines merits

15.Reference: Merriam-webster.com defines merit at the followingaddress (http://mw4.merriam-webster.com/dictionary/merits)

16.Reference: Black's Law Dictionary (8th ed. 2004) defines Construe17.Reference: Black's Law Dictionary (8th ed. 2004) defines Just18.Reference: on the merits is defined by legal-dictionary.com at the

following internet web address: (http://legal-

dictionary.thefreedictionary.com/on+the+merits)

19.Reference: Maxim- Lex nemini operrtur iniquum, nemini facitinjuriam. The law never works an injury, or does a wrong

20.Reference: Abuse of Discretion is defined by Lectlaw at the followingwebsite: (http://www.lectlaw.com/def/a004.htm)

21.Reference: Abuse of Discretion is furthermore defined by the CornellLaw University Website at the following website address:

(http://topics.law.cornell.edu/wex/abuse_of_discretionAbuse of

discretion)

22.Reference: Manifest Abuse of Discretion is defined by duhaime.org atthe following address: (http://www.duhaime.org/LegalDictionary/M/ManifestAbuseofDiscretion.aspx)


42/44

38

23.Reference: Noble Securities Holding Limited v. Tremblay, 2007NBCA 91 (CanLII), J. ERNEST DRAPEAU, CHIEF JUSTICE OFNEW BRUNSWICK, explained why the Court may render any

decision and make any order which ought to have been made, and may

make such further or other order as the case may require, at paragraph12

b) Schedule B - The text of all relevant provisions of Statutes orRegulations (or copies of the complete Statute or Regulation may be

filed and served with the Submission).________________

Rule1.03 CITATION, APPLICATION AND INTERPRETATION:

1.03 Interpretation

1.03(2) These rules shall be liberally construed to secure the just, leastexpensive and most expeditious determination of every proceeding on

its merits.


39.01 By Affidavit(1) On a motion or application evidence may be given by affidavitunless directed otherwise by these rules or by order.


39.04 Service of Affidavits

Except for the person giving Notice of Application or Notice ofMotion, any person who intends to give affidavit evidence at the

hearing shall serve a copy of such affidavit

(a) on the person giving the notice, and

(b) on each person served with the notice, at least 4 days prior to the

date set for the hearing.


43/44

39

62.21 Powers of Court of Appeal

To Draw Inferences and Make Decisions(1) The Court of Appeal may draw inferences of fact, render any

decision and make any order which ought to have been made, and

may make such further or other order as the case may require.


44/44

Oct. 19, 2011, 2nd Court of Appeal Hearing requesting Rule 62.21(1) Orders that confirm a...

Documents

Transcript of Oct. 19, 2011, 2nd Court of Appeal Hearing requesting Rule 62.21(1) Orders that confirm a...