december 27, 2012, motion for leave to appeal from impugned prohibition court order, dated december...

7/30/2019 December 27, 2012, Motion for Leave to Appeal from impugned Prohibition Court Order, Dated December 17, 20

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d) Furthermore, in the alternative, to the herein above paragraph c, theappellant asks for an extension of time to issue and serve a Notice of

Appeal in the event that the judge hearing the motion rules that theOrder/Decision is not interlocutory

e) That the INTENDED RESPONDENT pay costs of the within Motion,f) Such further and other relief as to this Honorable Court may appear

just.

The appellants grounds for this appeal are as follows:

Stay of Proceedings

1. A Charter Challenge is a serious matter, the scope of which,reasonably, has wide reaching implications, as in this case, assuring security of

the person to all New Brunswick residents and or non-resident of New

Brunswick, who may be considering doing business within the province of

New Brunswick. Therefore, the effect of the subject impugned prohibition

Order issued by the Learned Trial Judge Madam Justice Judy Clendening,

consequently, in the first instance denies opportunity for Applicant Andre

Murray to obtain remedy, moreover, in the second instance eliminates a

significant opportunity to establish a precedent, that, which will begin the

process of causing New Brunswick legislation to reflect Charter compliance.

2. The Applicant having dedicated himself in a solemn or thoughtfulmanner compiled and filed meritorious substantive material submissions which

deserve careful consideration by a Learned Trial Judge of the New Brunswick

Court of Queens Bench, however, the herein subject of this motion, for leaveto appeal from the Order issued December 17, 2012 Order is the paramount

necessity to overturn, quash, and or dismiss the subject Order as impugned (in

its entirety).


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3. The subject impugned prohibition Order issued by the Learned TrialJudge Madam Justice Judy Clendening if allowed to stand, will seriously limit

the Applicants access to justice, without good reason or sound judgment.

Please Note the extent of the subject Order issued December 17, 2012, indeed

must be considered severe, if not draconian, as the scope of prohibition is so

wide as to deny any further opportunity to seek remedy, whatsoever, within

New Brunswick Court of Queens Bench Trial Division. Such as is found in

paragraphs 4, 5, 6 and 7, an excerpt of which is provided herein below:

4. In the interest of not exacerbating the extent of irreparable harm,which must reasonably be evident that Intended Appellant will suffer,

consequences of the herein above mention subject Court Order issued:

December 17, 2012, therefore, these subject Orders must not be permitted to

stand.

5. Furthermore, the Applicant will continue to suffer irreparable harm ifthe herein requested Stay is not granted; please Note the herein mentioned


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subject Charter Application should have been recognized as the priority issue

(Originating Process; Court File Number: FM/27/12) before the lower Court,

which, therefore, the subject Charter Application is reasonably being

nefariously obfuscated by these subject Motions of the Respondents, which are

frivolous and vexatious in substance; however, unfortunately thereafter, was

negligently (failure to exercise the care that a reasonably prudent person would

exercise in like circumstances) entertained (with amusement or enjoyment) by

the Learned Trial Judge.

6. Furthermore, in considering irreparable harm what must be foremostin the minds of any Appellate Judge, is the current uncertain state of the law

regarding the award of damages for a Charter breach, it will in most cases be

impossible for a judge on an interlocutory application to determine whether

adequate compensation could ever be obtained at trial. Therefore, until the law

in this area has developed further, (according to the Supreme Court of

Canada), it is appropriate to assume that the financial damage which will be

suffered by an applicant following a refusal of relief, even though neverthelessincapable of quantification, constitutes irreparable harm. Secondary,

nevertheless not any less significantly harmful to the Applicant is the standing

Court Order completely prohibiting the Applicants access to the Court of

Queens Bench of New Brunswick; this is a province wide prohibition, which

reasonably constitutes irreparable harm, again, that which cannot be quantified

in damages.

7. In this matter the balance of convenience favors the granting of theApplicants request for a Stay of the order (or decision) of Queens Bench Trial


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Division, Learned Trial Judge, Madame Justice, Judy Clendening, Judicial

District of Fredericton, Dated the 17th day of December, 2012.

8. Furthermore, to the above question of the Balance of Convenience,the Applicant further believes it is critical in the interest of Justice, as in this

case, that the Applicant must be heard,Audi alteram partem hear the other

side for this purpose the Applicant must be allowed to provide argument

relevant to The Charter application, contrary to the standing Orders as found in

paragraphs 4, 5, 6 and 7 of the subject Orders issued December 17, 2012;

nevertheless absence of any would be litigant to be able to seek remedy in a

timely manner may reasonably be fatal to any Applicants cause, espevially in

matters concerning equity, therefore the subject prohibition Orders will

result in a miscarriage of justice moreover an additional Charter Breach. To put

it bluntly the Applicant asserts that no greater inconvenience could be

experienced by Self Represented Litigant than a complete prohibition from

being able to defend ones interest, and or seek remedy through Court of

Queens Bench Trial Division.

9. Furthermore, on the matter of Balance of Convenience, in additionand or despise the damages each party alleges it will suffer, the interest of the

public must be taken into account. In this case, should the Applicant be

successful on this subject Charter Application, the public will benefit by all

Residential Leasehold Tenants and or home owners no longer fearing being

evicted (thrown out into the Street) by Mortgagees who having established apresident at law may now with confidence circumvent therefore effectively

eviscerate the Charter protected New Brunswick Residential Tenants Rights

by crafty nefarious legal technicalities.


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10. This Honorable Court in considering the Applicants request forOrders granting a Stay of the subject Orders issued December 17, 2012,

therefore, suspending the enforcement of the subject impugned December 17,

2012 Orders, which if not stayed will bar the Applicant from a meaningful

Hearing of the real matters in dispute, that being the Charter Challenge. Please

Note: The Charter Challenge before the lower Court is a clear case justifying

an interlocutory injunction against the enforcement of a law on grounds of

alleged unconstitutionality. The Applicant argues not only his own private

interest, but also the public interest, will be hurt by this Honorable Court notgranting the herein requested Orders for a stay.

11. The granting of a stay pursuant to Rule 62.26(3)(a) of the Rules ofCourt, therefore, properly exercised will preserve and or restore the status quo.

The granting of a stay will not give the Applicant his remedy; only preserve

the parties standing until the Charter issues are resolved.

12. A judicial stay of proceedings has been recognized as beingappropriate in circumstances, where prejudice to the applicants right to make

full answer and defence cannot be remedied. If the impugned December 17,

2012 Order were to be enforced, prejudice to the applicants right to make full

answer and defence will be reasonably blocked therefore a prejudice which

potential and or realized harm cannot and or could not be remedied.

13. The herein subject matters which are of paramount importance,reasonably must be the issue of New Brunswick Legislation being non-Charter

compliant, therefore, is impugned Legislation, manipulated by Mortgagees to

trample Charter protected Residential Tenants - Tenancy Rights. It is time

New Brunswick Legislation, aligns its Statues according to the Charter,


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consistent with every other Province in Canada. By granting the Stay as

requested, the parties may proceed through due process. If the Applicants

request for the subject Stay is not granted, consequently, this denial of a

reasonable request in light of the circumstances, will give cause for the public

to realize the innate bias of the circumstances, resulting in obvious irreparable

prejudice to the perceived integrity of the judicial system of New Brunswick;

Once the public loses faith in the Justice system...

Bias Rule

14. The Learned Trial Judge failed to understand the facts and argumentsas presented by the Appellant and instead pursued only the arguments, interests

and assertions as presented by the Respondents, this predisposition of the

Learned Trial Judge toward a particular result, is such that a reasonable

apprehension of bias is raised, furthermore, the learned Trial Judge made

obviously erroneous statements within the decision which are not supported by

Court Filed substantive material evidence, therefore, must represent a bias or

predisposition of the Learned Trial Judge to render a decision not found in fact.

Abuse of Discretion

15. The Appellant asserts, that The Learned Trial judge did display abuseof discretion, which is an adjudicator's failure to exercise sound, reasonable,

legal decision-making. The Learned Trial Judge alternately rendered a decision

which is unsupported by the evidence and clearly based on erroneous findings

of material fact.

16. 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


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

every proceeding on its merits.

17. The claimed findings of fact upon which the Learned Trial Judgebased her decisions stating NOW THEREFORE IT IS HEREBY ORDERED

THAT however upon examination of each of the WHEREAS the substance of

fact is not found there within furthermore, each of the WHEREAS are

followed by the Learned Trial Judges conjecture (Inference or judgment based

on inconclusive or incomplete evidence); moreover of the three WHEREAS

including the AND UPON the substance of which precede NOW

THEREFORE IT IS HEREBY ORDERED THAT please note there is no

substantive material evidence filed in the Court to support any of the claims

found therewithin, the herein above mentioned subject WHEREAS including

the AND UPON with the exception of the first WHEREAS the

respondents filed Motions seeking to have Andre Murray declared a vexatious

litigant. Please Note that despite there being Motions seeking declaration of a

vexatious litigant-seeking a declaration does not a declaration make, and canhardly be considered a fact worthy of issuing such subject draconian Orders as

we have witnessed, further, and copied herein.

18. The Intended Appellant can show that the subject impugned Ordersare unreasonable, based on a material misapprehension of the evidence, and or

tainted by a failure and or misapprehension of Court filed substantive material

evidence. The effect is significantly unjustified prejudice and or injustice to the

Intended Appellant.

19. The Learned Trial Judge, demonstrated that she did not appreciate theargument or position advanced by the Intended Appellant, consequently failed


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or refused to understand the legal principles relied on, in support of the

Intended Appellants argument requesting Leave of the Court to therefore

obtained Abridgement of Time, to file and serve Court documents, which,

despite having already been served upon the respective parties to the action

were, according to the rules of Court, technically, exceeding the time

limitations for service by 24 hours. The law has recognized for centuries that a

COURT OF APPEAL would interfere with the exercise of the discretion of a

trial judge when "the trial judge was manifestly wrong" or "substantial

injustice" or "serious injustice would result", which the Applicant claims to be

evident in this case.

20. Manifest Abuse of Discretion is demonstrated when a CourtsDiscretionary Decision is unsupported by the evidence; further, when a Court

alternatively arrives at erroneous finding of material facts, as has occurred in

this subject matter, consequently, the Intended Appellant claims that the

Learned Trail Judge has demonstrated Manifest Abuse of Discretion, by not

granting the Intended Appellants Motion - Leave of the Court for anAbridgement of time to file and serve documents. However, instead the

Learned Trial Judge rendered a decision, which in effect grants the Intended

Respondent the relief they were seeking, denies the Applicant province wide

access to the Court of Queens Bench thereby creates a prejudicial hurtle for

the Self Represented litigant. In these circumstances it would be a disservice to

the administration of justice to allow this decision to stand.

21. The Learned Trail Judges Omissions in reasons for judgment, whichamount to material error because they give rise to the reasoned belief that the


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trial judge must have forgotten, ignored or simply misconstrued the evidence

in a way that affects the Courts conclusions.

22. Like any other discretionary judicial decision, it may be interferedwith on appeal when it is founded upon an error of law, an error in the

application of the governing principles or a palpable and overriding error in the

assessment of the evidence

Error in law23. The Courts standard of review on pure questions of law must be oneof correctness. Appellate courts require a broad scope of review with respect to

matters of law, because their primary role is to delineate and refine legal rules

and ensure their universal application. Court Orders issued under statutory

authority are valid only when within the scope of authority, however as in this

case, the Trial Court did commit a reversible error. The learned Trial judge did

not base its decision on any recognizable Statute, Rule of Court or legal principle.

24.

The Court record does not contain any substantive material evidenceand or Court filed submissions which may justify the Learned Trial Judge issuing

a Order which Stays the proceedings for six months, inter alia.

Findings of Fact

25. The standard of review for findings of fact is such that they cannot bereversed unless the trial judge has made a palpable and overriding error. A

palpable and overriding error is one that is plainly seen. However, in this case

the Learned Trial Judge evidently based her decision on facts as the Learned

Trial Judge expressed could be found within the first 3 WHEREAS

paragraphs including the AND UPON paragraph, of which in each


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respective case of the above subject WHEREAS including the AND

UPON the Learned Trial Judge did provide written justification for her

findings of fact. Please see excerpts, thereof, provided below.

26. First whereas: WHEREAS the respondents filed motions seekingAndre Murray declared a vexatious litigant;

The Applicant respectfully asserts this is cannot be considered a

finding of a relevant fact, as there has never been a determination as to

the validity of the Respondents claims, therefore can hardly justify what

has occurred by issuing prohibition Orders consequently in this case

the Applicant is guilty until proven innocent

27. Second whereas: AND WHEREAS the Applicant filed documentswith the Court of Queens Bench on Friday, 14 December 2012 requesting an

adjournment of both his and the respondents Motions;

The Applicant asserts there is no proof thereof, Applicant filed

documents with the Court of Queens Bench on Friday, 14 December

2012 requesting an adjournment is false, therefore this is not decision

based on fact.

28. Third whereas: AND WHEREAS this matter was originally scheduledfor and ready to proceed on 13 July 2012 and was adjourned by the Court do to

a conflict;

The Applicant asserts there is no proof thereof therefore this so called

decision is not based on fact, however if in deed there was a conflictthe Court has never revealed and or advised the Applicant of any

circumstances equivalent to a conflict, nevertheless, an unknown

conflict occurring 13th

of July 2012 can hardly be a fact worthy of


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denying the Intended Appellant any access to New Brunswick Court of

Queens Bench for 6 months with further outrageous Orders forbidding

any contact between parties.

29. AND UPON the Applicant Notifying the Court on 17 December2012, that because of illness he was unable to appear;

The Applicant asserts there is no proof thereof; the Applicant has

absolutely never notified the Court on, before and or after December

17, 2012, that because of an illness he was unable to appear, therefore

this is not decision based on fact, instead this is a decision based on

falsehoods, misapprehension and or misrepresentations, as found

throughout the subject impugned Order.

30. The Court failed/omitted to write in the Order that the Applicant hadCourt filed Date Stamped May 31, 2012, with Court of Queens Bench Client

Services a Charter Challenge Application, which was originally scheduled to

be heard July 13, 2012, then without explanation rescheduled be heardDecember 17, 2012.

31. The two of three Motions which the Court has referred to, were filedby the Respondents, moreover, were filed late and could reasonably be

recognized as motivated only for the purpose of collaterally attacking the

Charter proceedings, therefore the Respondents have succeeded in another

attrition tactic against the Applicant in their effort to prevent a most significant

matter of a Charter Infringement from being heard in the New Brunswick

Court of Queens Bench.


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32. Obfuscation of the facts by the Learned Trial Judge is palpable andoverriding as found in the Learned Trial Judge decision - Second WHEREAS

which December 13, 2012 the Applicant notified the Court of the Applicants

unfortunate situation, The Court failed to include in the impugned decision the

fact that the Applicant asked for an adjournment because of a unfortunate

debilitating computer malfunction and consequential loss of integral legal data.

True the situation which was exacerbated by the stressful circumstances of loss

of data due to a computer hard drive failure, which was made abundantly clear

that despite the stressful situation the Applicant was sincerely endeavoring to

file on time despite having to resort to various notes inter alia. Applicant, at

that time of the email, the Applicant was unsure if the appropriate

documentation would be filed on time for the December 17, 2012 scheduled

Hearing, once again any mention of health was only to place emphasis on the

Applicants sincerity and determination to see this thing through. An

adjournment was a obvious short term remedy for the Applicant to recover

data not for health reasons.

33. Please Note that the subject hearing December 17, 2012, wasscheduled to commence at 9:30 AM, it is reasonable to say that by the time all

who are attending the subject Court Hearing have been identified and the

matters to be determined have been declared and or identified nothing less than

10 minutes would have transpired, this would place the actual discovery of the

substance of the matters to reasonably begin to be explored at 9:40,

furthermore, one must remember that the originating process and 3 separate

Motions were at issue, having said this I would bring this honorable Courts

attention to the fact as found as an exhibit within my Affidavit a confirmation

that the Clerk of the Court refused to accept delivery of substantive materials,


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intended for submission to the relevant Court File, of which is our topic.

Furthermore, the Affidavit Exhibit points to a fact that at precisely 10:56 AM

the Clerk of the Court was already refusing to accept the filing of the

Applicants substantive material submissions. The point the Applicant intends

to make here is the improbability that a Court Order had been printed and or

even signed as early as what reasonably would have to have been 10:30AM. It

has occurred to the Applicant that there may be collaboration between the

Clerk of the Court Craig Carleton and Learned Trial Judge Judy Clendening,

which is insincere for what else could it be to behave in such a manner.

34. The resulting impugned Orders are draconian, oppressive, biased,overbreadth, and if left to stand, will bring New Brunswick administration of

Justice into disrepute.

Conclusion

35. Madam Justice Judy Clendening metaphorically speaking performs,mental gymnastics in that Justice Judy Clendening: finds a means of pole

vaulting over top of the Applicants Originating Process, Court Filed withCourt of Queens Bench, Fredericton , Trial Division, Client Services, thereby,

Date Stamped May 31, 2012,;

please kindly cooperate with the Applicants metaphorical analogy however,

further, as mental gymnasts Judy Clendening hurtles over top of (in this case)

the Originating Process, she actually succeeds to bypass the Originating

Process, consequently, the substance of which Judy Clendening entirely

ignored, subsequently as, upon descending down the other side of (the

metaphorical ) pole vault Madame Justice Judy Clendening is careful to land

on and or address only two of the three Motions, Court filed laid down for

Justice Judy Clendening; nevertheless in considering this subject maneuver of


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Madame Justice Judy Clendening, it becomes abundantly clear that the subject

two (filed by Respondents) of three Motions were the only Motions

Madame Justice Clendenning intended to consider. However, facts are: an

abuse of Court Discretion has occurred, whereby, the Learned Trial Judge

Madame Justice Clendening did seriously error by not considering the

substance of the Motion filed by the Applicant Andre Murray, found therein

requesting relief - Orders for Leave of the Court and Abridgment of time to

Court file and Serve Court Documents for the previously scheduled December

17, 2012, Court Hearing of a Charter Application. Consequently, the Intended

Appellant asserts that this Court may find ample reason to declare that the

Learned Trial Judge Madame Justice Clendening displays a reasonable

apprehension of Bias when considering matters which concern Andre Murray.

36. The Intended Appellant offers that herein provided analogy of mentalgymnastics is most appropriate; for Madame Justice Clendening to have

necessarily achieved such a obfuscation of the priorities; furthermore, which

however, may not justify abuse of Court process and or jurisprudence byMadame Justice Clendening relying on her inherent discretion.

37. So vivid is the determination and or bias of Justice Judy Clendenning ,against Applicant Andre consequently, therefore, since Justice Judy

Clendenning clearly proceeds to abuse her discretion in deeds not recognizable

within the Rules of Court and nor Jurisprudence, consequently, the Intended

Appellant has found it necessary to resort to analogies such as found

herewithin, which the Applicant is respectfully referring to as mental

gymnastics.


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38. Furthermore, one can see that Judy Clendening appears to believe thatshe is capable of levitating above and beyond reason. There is no requirement

for as material pole to accomplish the mental gymnastics pole vault over and

therefore, ignore the Applicants Originating Process of Charter Challenge

Application ,that is as in this case when the presiding judge is prepared to

abuse the Courts discretion; moreover, the Applicants Originating Process

was properly Court filed by the Applicant, therefore, requesting the hearing of

a Charter Challenge; instead Judy Clendening simply levitates above and

beyond her worldly obligations, consequently shirks her responsibility to

adhere to well established jurisprudence in these such matters; further it

appears as though Justice Judy Clendening arrogantly relies upon her legal

sentencing which has not to date hypnotized the Intended Appellant, to for that

purpose cause the Intended Appellant loss of consciousness of Andre Murrays

Charter Rights which Madame Justice Clendening continues to whimsically

violate.

39. In summary, please kindly consider, that, the Applicants OriginatingProcess was completely ignored by Madame Justice Clendening, however,

Madame Justice Clendening favored two Court filed Motions, both, of which

are detrimental to the Applicants cause, while at the same time ignoring one of

the Court filed Motions, wherein the Applicant is seeking relief, the Applicant

is seen to be appropriately asking for an Abridgement of Time for Service, of

further substantive material submissions, as the situation may require.


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