january 23, 2013, intended appellants brief for hearing of a motion for leave to appeal from...

7/29/2019 January 23, 2013, Intended Appellants Brief for Hearing of a Motion for Leave to Appeal from impugned Prohibitio

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Court of Appeal File Number: 164-12-CA

(Court File Number: F/M/27/12)

IN THE COURT OF APPEAL OF NEW BRUNSWICK

BETWEEN:

ANDRE MURRAY

INTENDED APPELLANT (Applicant)

-and-

ROYAL BANK OF CANADA, and others,

INTENDED RESPONDENTS (Respondents)

PRE HEARING BRIEF

LEAVE TO APPEAL

Filed by Self Represented INTENDED APPELLANT ANDRE MURRAY

Andre Murray

Applicant

103 Huntingdon Circle

Fredericton, N.B.E3B 0M1

[email protected]

om

Respondent

HON. Robert Douglas

Nicholson

Minister of Justice and

Attorney General of

Canada

284 Wellington Street

Ottawa, Ontario K1A 0H8Telephone: (613) 957-4222

Fax : (613) 954-0811

Email: [email protected]

Denis G. Thriault

Legal Services - Litigation

Office of the Attorney

GeneralPhone : 506-444-5597

Fax : 506-453-3275

E-mail :

[email protected]

Solicitor representing

Respondent

HON. MARIE-CLAUDE

BLAIS Q.C.,

Minister and Attorney

General

George H. LeBlancCox and Palmer

Solicitor for the Respondent

ROYAL BANK OF

CANADA

644 Main Street, Suite 500,

Moncton, N.B.E1C 1E2

Telephone: 506 856 9800

Fax: 506 856 8150

Hugh J. Cameron

Solicitor for the Respondent

501376 N.B. Ltd., a body

corporate,

Suite 600, Frederick Square

77 Westmorland Street

P.O. Box 730

Fredericton, NB, CanadaE3B 5B4

Telephone: 506.443.0120

Fax: 506.444.8974


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Intended Appellants Brief

on Motion for Leave to Appeal

Intended Appellants Brief Index

Page

IINTENDED APPELLANTS BRIEF

Part I: An index of the contents __________________________

Part II: A concise statement of all relevant facts with such

reference to the evidence as may be necessary;______________

Part III:

(a) concise statement of the issues to be dealt with ______

(b) concise statement, setting out clearly, and particularly,in what respect, the order or decision appealed from is

alleged to be wrong; _____________________________

Part IV: concise statement of the argument, law, and authorities

relied upon regarding the following issues:

Stay of Proceedings ____________________________

Bias Rule _____________________________________

Abuse of Discretion _____________________________

Error in law ___________________________________

Findings of Fact ________________________________

Conclusion ____________________________________

Appropriateness of Cost Orders In Favor Of Self-

Represented Litigants (21) ________________________

Part V: Statement of the relief sought by Intended Appellant ___

Schedule A __________________________________________

i

1

10

12

12

19

20

28

29

33

35

39

40


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Part II

Concise statement of all relevant facts with such references to the evidence asmay be necessary;

(As in this section the following information is intended to clarify and developthe original Affidavit of Andre Murray Dated: December 27, 2012)

1. New Brunswick Rules of Court Rule 1.03 (2) These Rules shall beliberally construed to secure the just, least expensive and most expeditious

determination of every proceeding on its merits.

2. May 31, 2012 Applicant Andre Murray files Notice of ApplicationForm 16D, regarding Charter Challenge and is assigned a scheduled hearing

date of July 13, 2012.

3. July 3, 2012, 501376 N.B. Ltd., a body corporate, files a Motionrequesting, inter alia, an extension, and or an abridgement of time, according to

Rule 3.02.

4. July 5, 2012, RBC files a Motion requesting, inter alia, an abridgementof time according to Rule 3.02.

5. The above mentioned Motions, filed by the Respondents 501376 N.B.Ltd., a body corporate and RBC do not contain any meritorious substantive

material relevant to the Charter Challenge filed by Applicant Andre Murray

May 31, 2012.

6. It is noteworthy that despite the Respondents 501376 N.B. Ltd., a bodycorporate and RBC having been served a Charter Challenge Application within


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days of the filing, of same, the May 31, 2012, it is not until 10 days and 8 days

respectively before the Respondents filed their nefarious Motions therefore

intended to delay matters.

7. Evidently RBC followed suit in filing their Motion within days of theRespondent 501376 N.B. Ltd., a body corporate, as it would appear that both

respondents must be comparing notes although RBC does not file their subject

Motion until July 5, 2012.

8. The Applicant asks this Court of Appeal to consider the abuse of Courtprocess that which followed, the filing of herein subject Motions July 3, 2012

and July 5, 2012.

9. The Court of Appeal of New Brunswick should consider a CharterChallenge Application as an altruistic Action on behalf of the Intended

Appellant to take this opportunity to right a wrong for all of New Brunswick.

10. The Court of Queens Bench of New Brunswick should haveconsidered a Charter Challenge Application as an opportunity to right a wrong.

11. However, in any case, a Charter Challenge, in its very core essence,must be considered a duty of all citizens to uphold the standards found

therewithin the Canadian Charter of Rights Freedoms, whenever the criteria

necessitates itself.

12. A Charter Challenge Application filed by anyone, must be consideredan unselfish Act, that which is initiated for the good of the whole as opposed to

the singular Applicant, in other words as the age old expression is known, we

do not kill the messenger.


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13. The herein above mentioned subject Motions filed by RespondentsNumbered Company and RBC are motivated to kill the messenger as the

substance found therewithin their Motions lend nothing to the merits of the

Charter Challenge Application, instead are blatantly obstructive in their design

and purpose, to obstruct the Charter challenge application.

14. The Court of appeal of New Brunswick must not be observed to besupporting such causes, as to obstruct a Charter Challenge Application.

15. The Applicant, based on the foundation laid here before the Court ofAppeal, will establish both erroneous application of the law by the Learned

Trial Judge, as may be interpreted by the Rules of Court of New Brunswick.

16. The Applicant, based on the foundation laid here before the Court ofAppeal, will establish that the so called findings of fact upon which Learned

Trial Judge Judy Clendening based her decisions and issued Orders December

17, 2012, are indeed not consistent with any of the substantive material

evidence and or submissions filed into the subject Court File. Indeed it is

incomprehensible, that rather than the Court conducting itself in an honorable

manner by reasonably therefore, granting the Respondents their Abridgements

and or Extensions of time, as the case may be required, the Court has chosen to,

prior to the scheduled July 13, 2012, hearing of the subject Charter Challenge

Application, adjourn the matter without consulting or obtaining consent of the

Applicant, furthermore, this subject adjournment appears to be a bureaucratic

shuffle as opposed to a Court issued Order, which must be considered an

abuse of process, jurisprudence and or as the case may be simply dishonorable.


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17. Further to this outrageous act of official/unofficial adjournment, wesee that the Court of Queens Bench, will not hesitate to insult our sensibilities,

by not providing any explanation whatsoever, moreover, the abuse of Court

process occurs at this point, wherein and or whereby, the Learned Trial Judge

refuses to issue an Order for the purpose of adjourning the subject scheduled

hearing of, July 13, 2012.

18. At this point of the Brief the Court of Appeal must be beginning to seethat the metaphorical train of Justice is going off the rails (so to speak).

19. The Court of Queens Bench and any Learned Trial Judge presidingover matters within the Trial Division, may not, as in this case, dispense with

the Rules of Court, by indirectly causing an unofficial adjournment, as in this

case of the scheduled July 13, 2012, Court Hearing of a Charter Challenge

Application without explanation and evidently misrepresented as to the cause.

20. No explanation has been offered by the Learned Trial Judge, as to whythis scheduled hearing date of July 13, 2012 was adjourned to December 17,

2012.

21. Herein below, in Schedule A the applicant provides for theconsideration of the Court of Appeal, certain email correspondence between a

representative of the Client Services, for Court of Queens Bench, who makes it

abundantly clear, that no Order has been written and or issued furthermore, nor

does the Learned Trial Judge presiding over the subject matters intend to issue

an official Order, regarding the matter of an adjournment of the subject

scheduled hearing date, July 13, 2012.


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22. It is the Duty of the Court of Appeal of New Brunswick to review andto make findings of error as errors may be observed to occur in the regular

process of the Courts duties to provide balanced remedy, inter alia.

23. Where an appeal court accepts that an error of fact was made by thetrial judge, the circumstance is exceptional. This arises where, for example, the

trial courts factual inferences arising from certain established facts were

unreasonable. This indeed are the circumstances that Madame Justice Judy

Clendening a Learned Trial Judge made findings of fact not supported by any

substantive material filings or evidence submitted into the Court file, moreover,

the Learned Trial Judge reasonably could not have relied upon entries

verbalized On the Record for findings of fact therefore, the trial judge made

erroneous factual inferences not arising from the established facts in the issuing

of her Orders of December 17, 2012.

24. The question as to why the Learned Trial Judge has issued Orders ofprohibition, injunction and or a Stay as the case may be, is reprehensible in

light of the fact that such a request for an injunction and or a stay does not exist

originating from the Respondents.

25. Court of Appeal of New Brunswick must examine the WHEREASsection of the Orders issued by Madame Justice Judy Clendening, thereafter

this Honorable Court will be forced to ask itself, where are the actual findings

of fact and or facts?; upon which Madame Justice Judy Clendening has

reasonably therefore, chimerically relied upon.

26. The Applicant on May 31, 2012, did cause a Charter ChallengeApplication and supporting Affidavit, to be Filed with Client Services for Court


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of Queens Bench, Fredericton, Trial Division, at which time the subject

document was Court filed and Date Stamped, as May 31, 2012, subsequently,

thereafter, scheduled for a Court hearing of the subject matters to be July 13,

2012, which the Court did thereafter, without an explanation, and or adequate

justification, cancel the initial scheduled hearing Date of the subject Charter

Challenge Application, which had been previously set to have a Court room

hearing of July 13, 2012; reader must note that the herein subject cancelation of

the initial scheduled hearing Date of the subject Charter Challenge Application,

occurred only within days of the actual scheduled hearing Date of the subject

Charter Challenge Application; however, again without consulting the

Applicant the Court (Applicant cannot be sure who) unilaterally assigned a new

scheduled hearing date for the hearing of the subject matters as December 17,

2012.

27. December 13, 2012, the Applicant notified the Court of theApplicants unfortunate debilitating computer hard drive malfunction.

For consideration of this Honorable Court: the hard drive in a computer is the

place where all the data is stored. When a hard drive malfunctions, data cannot

be retrieved without removing the hard drive from a computer and sending it to

an expert computer service person.

28. The Applicant reasonably advised the Court of Queens Bench of thepossibility that an adjournment may be in the best interest of justice, thereby

providing the time necessary for the Applicant to manually reassemble his

entire meritorious substantive materials, intended for submission on the

scheduled Court Hearing of the subject matter for the December 17, 2012.


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29. Please note that December 14, 2012, in light of the computer harddrive malfunction (consequential loss of all data) the Applicant filed a Motion

for leave of the Court requiring an abridgment of time, that all materials

necessary in respect of the Applicants Charter Challenge Application and

response material to the Respondents two Motions as well as the final 3

documents provided to Client Services December 17, 2012, could be served

that they may be considered by the Court on December 17, 2012.

30. The Applicant is reliably advised that the previously scheduled hearingof an Application regarding Charter Challenge issues for July 13, 2012, wasapparently adjourned, consequence of an empty shelf company 501376 N.B.

Ltd., a body corporate., owned by Mecca Corporation of 211 Doak Road,

Fredericton, July 3, 2012, had filed a Motion including supporting Affidavits

which are superfluous and voluminous.

31. July 6, 2012, Royal Bank of Canada filed their Motion again supportedby superfluous voluminous Affidavit; all of this was occurring with the support

of the Court to evidently change the scheduled hearing dates to accommodate

the Respondents violation of time limitation restrictions according to the rules

of Court, which could not have been served on time to effectively collaterally

attack the Applicants Charter Hearing, originally scheduled to be heard July

13, 2012.

32. Two subject Motions filed by the Respondents are in violation of theRules of Court. The effect of the Respondents filing, evidently resulted in the

Learned Trial Judge issuing an adjournment of the hearing of these subject

matters to the adjusted date of December 17, 2012. Therefore, 501376 N.B.

Ltd., a body corporate and Royal Bank of Canada were directly responsible for


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that Adjournment which is a regular tactical maneuver of theirs which they

have employed to their convenience and to the Applicants detriment since year

2009.

33. Rule 37.13 allows for this Pro re nata. The Court was advised that theApplicant would be relying on written submissions rather than attending the

scheduled hearing December 17, 2012, to accommodate, that the Hearing

regarding the Charter Application could proceed as scheduled.

34.

Attached to Affidavit of Andre Murray Dated December 27, 2012, asExhibit A is the December 13, 2102, email letter sent to office of Clerk of the

Court Craig Carleton, therefore giving Notice that I would be late in filing the

subject Court documents essentially because of computer hard drive failure,

furthermore, advising that all data stored in the hard drive was not retrievable

without a delay.

35. Attached to Affidavit of Andre Murray Dated December 27, 2012, asExhibit B is the second December 13, 2102, email letter sent to Craig

Carleton, Clerk of the Court, Notice that I would be late in filing the subject

Court documents because of computer failure.

36. Attached to Affidavit of Andre Murray Dated December 27, 2012, asExhibit C is the Motion, which was filed by Applicant for Leave of the Court

and Abridgment of time for service Dated December 14, 2012.

37. Attached to Affidavit of Andre Murray Dated December 27, 2012, asExhibit D is the Affidavit Dated December 14, 2012, which accompanied the


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above noted Motion, which was filed by Applicant, for Leave of the Court and

Abridgment of time for service.

38. Attached to Affidavit of Andre Murray Dated December 27, 2012, asExhibit E is the December 17, 2012, email letter sent to Clerk of the Court,

Craig Carleton, therefore, Notice that I would not be attending the December

17, 2012, Hearing at 9:30 AM, furthermore, that I will instead be relying on my

written filed submissions.

39. Attached to Affidavit of Andre Murray Dated December 27, 2012, asExhibit F is the December 17, 2012, impugned Order of the Court, now under

review.

40. Attached to Affidavit of Andre Murray Dated December 27, 2012, asExhibit G is the December 18, 2012, Daily Gleaner Article commenting on

the December 17, 2012, proceedings.

41. Attached to Affidavit of Andre Murray Dated December 27, 2012, asExhibit H is the December 17, 2012, delivery Notice Slip by Courier Service

called: SA Deliveries which indicates Clerk of the Court Craig Carleton refused

to accept certain Court Documents the Applicant was attempting to have Court

filed at approximately 10:30 AM. December 17, 2012.

42. According to rules of Court, Rule 3.01(c) where the time for doing anact or taking a step in a proceeding expires on a holiday, the act or step may be

done or taken on the next day that is not a holiday. The date for filing this

particular Motion for Leave to Appeal fell on Monday December 24, 2012,

Christmas Eve (a holiday), consequentially the next day that is not a holiday

was December 27, 2012.


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43. December 27, 2012, due to insurmountable unfavorable weatherconditions causing travel to be hazardous and at the very least unadvisable,

nevertheless I did attempt to travel to the City of Fredericton returning from the

area of Moncton City, furthermore as my motivation to return at that time, was

to file:

NOTICE OF MOTION FOR LEAVE TO APPEAL (FORM 62A),Dated December 27, 2012;

Affidavit in support of above mentioned MOTION, DatedDecember 27, 2012;

44. Furthermore as the unfavorable weather backed up causing trafficjams on highways, therefore, necessitated that I advise the Office of Court of

Appeal by telephone, first of all: speaking with I believe Marie that I was

underway; thereafter on my second telephone call correspondence I was

advised by Bianca that the Registrar Natalie H. LeBlanc had already made note

of my predicament and was happy to accept the filing of the herein above

mentioned documents for filing, before the end of the day December 28, 2012.

Considering all the above, this Leave to Appeal Motion was filed December 28,

2012, on time and accepted as same by the Registrar Natalie H. LeBlanc.

Part III

(a) a concise statement of the issues to be dealt with by the court;

Should Leave to Appeal be granted to the Applicant? Should a stay of proceedings be granted to the Applicant?

45. Rules of Court, Rule 62.03, is the Rule considered by this Court indeciding whether to grant leave to Appeal Court of Appeal.

62.03 Leave to Appeal


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

(a) whether there is a conflicting decision by another judge or courtupon a question involved in the proposed appeal;(b) whether he or she doubts the correctness of the order or decision inquestion; or(c) whether he or she considers that the proposed appeal involvesmatters of sufficient importance.

46. In Lang v. Tran, Cavarzan J. addressed the following regardingimportance of the issues:

With respect to the factor involving the importance of the issues, I

note that the rule does not refer to the importance of the issues to theparties. No doubt, when matters require resolution by proceeding to

trial the issues are important to the parties. In my view, however,

importance of the issues comprehends matters of general

importance affecting the rights of society at large, . . .

Lang v. Tran, 2006 CanLII 32627 (ON SC), at para. 11

47. The Court which the Applicant is Motioning for Leave to Appeal fromhas unjustly delayed the Hearing of a Notice of Application regarding Charter

Challenge, further, burdening the Intended Appellant with impugned

draconian prohibition Orders, therefore, if allowed to stand setting a

precedent, which can be used against others, furthermore, both herein

mentioned matters of general importance affecting the rights of society at large.

48. This Intended Appellant believes, that the Court of Appeal will:following its process ofdeliberation and consideration of all sides of the issue,

thereafter, having reviewed the circumstances found illustrated throughout the

entirety of this brief, find that both prerequisite Rule 62.03 conditions are met:

(b) this Court doubts the correctness of the order or decision in question


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(c) this Court considers that the proposed appeal involves matters of

sufficient importance to grant Leave to Appeal.

(a) A concise statement setting out clearly and particularly in

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

49. The subject December 17, 2012, impugned Orders of Madame JusticeClendening are capricious, draconian, unjust, oppressive, biased, overbreadth,

not based in law, not based in substantiated fact, display an abuse of discretion

and if left to stand, will bring New Brunswick administration of Justice into

disrepute.

Part IV

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

Stay of Proceedings

50. Rules of Court, Rule 62.26, is the Rule used for a Stay of Proceedingin the Court of Appeal.

62.26 Stay of Proceedings(1) Unless ordered otherwise, an appeal does not(a) operate as a stay of execution or of proceedings under the decision ororder appealed from, or(b) invalidate any intermediate act or proceeding.

(2) A motion for a stay of execution or a stay of proceedings may bemade before the judge appealed from, the Court of Appeal or a judge ofthe 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 forsubmission to the Court of Appeal,grant a stay,


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(b) if a stay of execution or a stay of proceedings may cause therespondent to lose the benefits of the verdict

or judgment, impose terms to secure the respondents interests, and

(c) impose any other terms necessary to prevent prejudice to therespondent.

51. In C.D. v. A.B., 2004 CanLII 43691 (NB CA) J.C. MARC RICHARD,J.A. Court of Appeal of New Brunswick provided the following regarding Stay

of Proceedings, which was restated in DHP v PLP (M), 2012 CanLII 78463

(NB CA), M.W.M. v. H.L.M., 2009 CanLII 74704 (NB CA) and Bourque v.

Bourque, 2005 CanLII 26694 (NB CA):

[26] Courts generally determine whether it is just andequitable to grant a stay pending appeal by applying the well-knownthree-prong test formulated in Metropolitan Stores (MTS) Ltd. v.Manitoba Food and Commercial Workers, Local 832 and Labour Board

(Man.), 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110 and RJR-MacDonald Inc. and Imperial Tobacco Inc. v. Canada (Attorney

General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311: (1) Does theappeal pose a serious challenge to the decision in the court below? (2)

Will the applicant suffer irreparable harm without a stay? (3) Does thebalance of convenience favour the order sought?: seeMoncton (City) v.Steldon Enterprises Ltd. et al., [2000] N.B.R. (2d) (Supp.) No. 3 (C.A.)per Drapeau J.A. (now Chief Justice of New Brunswick) who thenobserved that [t]he first branch of the test is referred to in Rule 62.26,while the second and third branches have been formulated by the courtsto provide a principled framework for the exercise of discretioncontemplated by the rule.

[30] . irreparable harm in the sense of the term as set out bySopinka and Cory JJ. inRJR-MacDonaldat p. 341:

Irreparable refers to the nature of the harm suffered ratherthan its magnitude. It is harm which either cannot be quantifiedin monetary terms or which cannot be cured, usually becauseone party cannot collect damages from the other.


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C.D. v. A.B., 2004 CanLII 43691 (NB CA) para 26 and 30

52. 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 its own undertaking to

become Charter compliant.

53. The Applicant having dedicated himself in a solemn and or thoughtfulmanner, has 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 leave to appeal from the Order issued December 17, 2012 Order is of

paramount necessity to overturn, quash, and or dismiss the herein mentioned

subject Order as impugned (in its entirety).

54. The herein above mentioned subject impugned prohibition Orderissued by the Learned Trial Judge Madam Justice Judy Clendening, if allowed

to stand, will, without good reason or sound judgment, seriously limit the

Applicants access to justice,. Please take Note of the extent of the subject


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prohibition Order issued December 17, 2012, which must be considered severe,

if not indeed 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:

55. In the interest of not exacerbating the extent of irreparable harm, whichmust reasonably be self-evident, that, which the 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.

56. Notice: the Applicant will continue to suffer irreparable harm if theherein requested Stay is not granted.

57. Please take further Note the herein subject (Originating Process; CourtFile Number: FM/27/12) Charter Application should have been recognized as

the priority issue before the lower Court, which, therefore, the subject Charter

Application is reasonably being nefariously obfuscated by these subject


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Motions of the Respondents, which must, in any case, be considered 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) was reportedly entertained (with amusement or enjoyment)

by the Learned Trial Judge.

58. Furthermore, in considering irreparable harm, that which, and must beforemost in 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, nevertheless,

incapable of quantification, constitutes irreparable harm. Secondary,

nevertheless, and 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 that which is a province wide

prohibition, which reasonably constitutes irreparable harm, again, that which

again cannot be quantified in damages.

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

Bench, Fredericton, Trial Division, issued by Learned Trial Judge, Madame

Justice, Judy Clendening, Dated the 17th day of December, 2012.

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


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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; however, the

prohibition, therefore, of any would be litigant to be allowed and or free to in

a timely manner seek remedy may consequentially be fatal to any Applicants

cause, especially in matters concerning equity, therefore the subject

prohibition Orders will result in a significant miscarriage of justice, moreover

an additional Charter Breach. To put it bluntly the Applicant asserts that no

greater inconvenience could be experienced by New Brunswick, Self

Represented Litigants than a complete prohibition from being able to defend

ones equitable interest as they may be, and or to seek, in a timely manner,

certain remedy, through Court of Queens Bench Trial Division.

61. Furthermore, on the matter of Balance of Convenience, in addition andor despite 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 will no longer be fearing eviction

(thrown out into the Street) by Mortgagees who having consequently

established a president at law, may now with confidence circumvent, therefore,

further, by continuing these herein above and now again reasonably mentioned,

crafty nefarious legal technicalities, which will eviscerate the Charter protected

New Brunswick Residential Tenants Rights.

62. This Honorable Court is considering the Applicants request for a Stayof the subject Orders issued December 17, 2012, which if not stayed will bar


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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 impugned legislation 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 not granting the herein requested

Orders for a stay.

63. 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.

64. 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, Orders were to be enforced, prejudice to the applicants rights to make

full answer and defence will be reasonably blocked, therefore, a prejudice of

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

65. 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,

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


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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

66. In R. v. S. (R.D.), the header of the Courts decision sums up the casebefore the supreme Court and provide relevant insight into the reasonable

apprehension of bias displayed by the actions and assertions of the Learned

Trial Judge, the relevant section is provided in the following:

(2)Reasonable Apprehension of BiasPerLamer C.J. and La Forest, Sopinka, Gonthier, Cory,

Iacobucci and Major JJ.: The courts should be held to the higheststandards of impartiality. Fairness and impartiality must be bothsubjectively present and objectively demonstrated to the informed andreasonable observer. The trial will be rendered unfair if the words oractions of the presiding judge give rise to a reasonable apprehension ofbias to the informed and reasonable observer.

If actual or apprehended bias arises from a judges words orconduct, then the judge has exceeded his or her jurisdiction. Areasonable apprehension of bias, if it arises, colours the entire trialproceedings and cannot be cured by the correctness of the subsequentdecision. The mere fact that the judge appears to make proper findingsof credibility on certain issues or comes to the correct result cannotalleviate the effects of a reasonable apprehension of bias arising fromthe judges other words or conduct. ...

The apprehension of bias must be a reasonable one held byreasonable and right-minded persons, applying themselves to thequestion and obtaining thereon the required information. The test iswhat would an informed person, viewing the matter realistically

and practically -- and having thought the matter through --conclude. This test contains a two-fold objective element: the personconsidering the alleged bias must be reasonable and the apprehension ofbias itself must also be reasonable in the circumstances of the case.Further the reasonable person must be an informed person, with


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knowledge of all the relevant circumstances, including the traditions ofintegrity and impartiality that form a part of the background and

apprised also of the fact that impartiality is one of the duties the judgesswear to uphold.

R. v. S. (R.D.), [1997] 3 S.C.R. 484

67. 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.

68. Considering the predisposition of the Learned Trial Judge to grantOrders in favor of the Respondents, despite lack of merit, and lack of sufficient

evidentiary record to maintain that position, an informed person, viewing the

matter realistically and practically -- and having thought the matter through

would conclude reasonable apprehension of bias exists.

Abuse of Discretion

69. Black's Law Dictionary (8th ed. 2004), at Page 31 defines ABUSE OFDISCRETION and ABUSE OF PROCESS As follows:

ABUSE OF DISCRETION

abuse of discretion.1. An adjudicator's failure to exercise sound, reasonable, and legal decision-making.2. An appellate court's standard for reviewing a decision that is asserted to begrossly unsound, unreasonable, illegal, or unsupported by the evidence.


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ABUSE OF PROCESSabuse of process. The improper and tortious use of a legitimately issued courtprocess to obtain a result that is either unlawful or beyond the process's scope.

70. The topic of unreasonable use of the discretion was examined in Slaightcommunications inc. v. Davidson as follows:

Parliament cannot have intended to authorize such an unreasonable use ofthe discretion conferred by it. A discretion is never absolute, regardless ofthe terms in which it is conferred. This is a long-established principle. H.

W. R. Wade, in his text titled Administrative Law (4th ed. 1977), says thefollowing at pp. 336-37:

For more than three centuries it has been accepted thatdiscretionary power conferred upon public authorities is notabsolute, even within its apparent boundaries, but is subject togeneral legal limitations. These limitations are expressed in avariety of different ways, as by saying that discretion must beexercised reasonably and in good faith, that relevant considerationsonly must be taken into account, that there must be nomalversation of any kind, or that the decision must not be arbitraryor capricious. [Emphasis added.]

This limitation on the exercise of administrative discretion has beenclearly recognized in our law, by Canadian Union of Public Employees,Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979]2 S.C.R. 227, and Blanchard v. Control Data Canada Ltd., 1984 CanLII27 (SCC), [1984] 2 S.C.R. 476, inter alia. Whether it is the interpretationof legislation that is unreasonable or the order made in my view matters nomore than the question of whether the error is one of law or of fact. Anadministrative tribunal exercising discretion can never do sounreasonably. To reiterate what I said earlier in Blanchard, supra, at pp.494-95:

An administrative tribunal has the necessary jurisdiction to make amistake, and even a serious one, but not to be unreasonable. Theunreasonable finding is no less fatal to jurisdiction because the


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finding is one of fact rather than law. An unreasonable finding iswhat justifies intervention by the courts.

Not only is the distinction between error of law and of factsuperfluous in light of an unreasonable finding or conclusion, butthe reference to error itself is as well. Indeed, though all errors donot lead to unreasonable findings, every unreasonable findingresults from an error (whether of law, fact, or a combination of thetwo), which is unreasonable.

In conclusion, an unreasonable finding, whatever its origin, affectsthe jurisdiction of the tribunal.

Slaight communications inc. v. Davidson, 1989 CanLII 92 (SCC),

[1989] 1 SCR 1038,

71. The Supreme Court of Canada reviewed Abuse of process in the caseof R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 SCR 979:

In summary, abuse of process may be established where: (1) theproceedings are oppressive or vexatious; and, (2) violate the fundamentalprinciples of justice underlying the community's sense of fair play anddecency. The concepts of oppressiveness and vexatiousness underline theinterest of the accused in a fair trial. But the doctrine evokes as well thepublic interest in a fair and just trial process and the proper administration

of justice. I add that I would read these criteria cumulatively. WhileWilson J. in R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657,at pp. 658-59, used the conjunction "or" in relation to the two conditions,both concepts seem to me to be integral to the jurisprudence surroundingthe remedy of a stay of proceedings and the considerations discussed in R.v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, and R. v. Conway,supra. It is not every example of unfairness or vexatiousness in a trialwhich gives rise to concerns of abuse of process. Abuse of processconnotes unfairness and vexatiousness of such a degree that it contravenesour fundamental notions of justice and thus undermines the integrity of thejudicial process. To borrow the language ofConway, the affront to fair

play and decency must be disproportionate to the societal interest

72. In Matondo, Justice Harington of the federal Court of Canada wrote:


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"To be capricious is to be so irregular as to appear to be ungoverned bylaw."

Matondo v Canada, 2005 FC 416,

73. Justice Barnes of the Court of Appeals of Mississippi wrote, in PublicEmployees:

"A capricious decision is done without reason, in a whimsical manner,implying either a lack of understanding of or disregard for thesurrounding facts and settled controlling principles."

74. In Gloucester (City) v. Bennett, 124 DLR 3d 495 (Ontario SupremeCourt, 1981) Justice Montgomery adopted these words to distinguishcapricious from arbitrary:

"To act arbitrarily is to act without any reasonable cause.

"To act capriciously is to act without any apparent reason."

Gloucester (City) v. Bennett, 124 DLR 3d 495 (Ontario Supreme

Court, 1981)

75. So, too, did Justice Bryan inAlabama Department of Youth Services:"A decision is not arbitrary where there is a reasonable justification forthe decision or where the determination is founded upon adequateprinciples or fixed standards.

"A decision is capricious if it is so unreasonable as to shock the sense ofjustice and indicate lack of fair and careful consideration."

Alabama Department of Youth Services v. State Personnel Board., 7 So.

3d 380 (2008)

76.

Abuse of discretion is a failure to take into proper consideration thefacts and law relating to a particular matter; an Arbitrary or unreasonable

departure from precedent and settled judicial custom. Where a trial court must

exercise discretion in deciding a question, it must do so in a way that is not


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clearly against logic and the evidence. An improvident exercise of discretion is

an error of law and grounds for reversing a decision on appeal. It does not,

however, necessarily amount to bad faith, intentional wrong, or misconduct by

the trial judge.

77. The Supreme Court of Canada reviewed The Standard of PatentUnreasonableness in C.U.P.E. v. Ontario :

A. The Standard of Patent Unreasonableness

20 Before answering this question, it is helpful to review someof the ways that this Court has articulated the test for patentunreasonableness. These are not independent, alternative tests. They aresimply ways of getting at the single question: What makes somethingpatently unreasonable?

21 In Suresh, supra, at para. 41, this Court indicated that apatently unreasonable decision is one that is unreasonable on its face,unsupported by evidence, or vitiated by failure to consider the properfactors or apply the appropriate procedures. This linkage of the nominategrounds for abuse of discretion with the patent unreasonableness standard

demonstrates the unified approach to review of discretionary decisionmaking set out by LHeureux-Dub J. in Baker, supra. Otherformulations of the test for patent unreasonableness are alsohelpful. Most relevantly in this appeal, other formulations assist inconstruing the terms vitiated by failure to consider the properfactors. A reweighing or reconsideration of factors that were originallyconsidered will not suffice to vitiate the decision. Furthermore, it is notnecessarily sufficient that a new relevant factor be invoked to vitiate theministerial decision.

22 InRyan, supra, Iacobucci J. writes that [a] decision that is

patently unreasonable is so flawed that no amount of curial deference canjustify letting it stand (para. 52).

23 In Southam, supra, Iacobucci J. distinguishes thereasonableness simpliciter standard from that of patent


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unreasonableness. He states that the difference lies in the immediacy orobviousness of the defect. If the defect is apparent on the face of the

tribunals reasons, then the tribunals decision is patentlyunreasonable. A decision is not patently unreasonable, he says, if ittakes some significant searching or testing to find the defect. He saystoo that once the lines of the problem have come into focus, . . . theunreasonableness will be evident (para. 57). Another way of getting atthe evident quality of the unreasonableness is to say that once identified, adefect rendering a decision patently unreasonable can be explainedsimply and easily (Ryan, supra, at para. 52).

24 In Canada (Attorney General) v. Public Service Alliance ofCanada, 1993 CanLII 125 (SCC), [1993] 1 S.C.R. 941 (PSAC), Cory J.

states that the very strict test of patent unreasonableness is whether thedecision is clearly irrational, that is to say evidently not in accordancewith reason (pp. 963-64).

C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (CanLII),[2003] 1 SCR 539, paragraph 20 25.

78. The courts will intervene if it is established that the subject decision ispatently unreasonable in the sense of irrational or perverse or (in language

adopted in Coughlan, at para. 72) so gratuitous and oppressive that no

reasonable person could think [it] justified.

79. Black's Law Dictionary (8th ed. 2004), at page 631, definesCapricious as follows:

CAPRICIOUScapricious, adj.1. (Of a person) characterized by or guided by unpredictable orimpulsive behavior.2. (Of a decree) contrary to the evidence or established rules of law. Cf.ARBITRARY


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80. The impugned Court Order appears to the Intended Appellant to becontrary to the evidence or established rules of law.

81. 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.

82. 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.

83. 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


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vexatious litigant-seeking a declaration does not a declaration make, and can

hardly be considered a fact worthy of issuing such subject draconian Orders as

we have witnessed.

84. 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.

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

or refused to understand the legal principles relied upon, found therein, in

support of the Intended Appellants argument requesting Leave of the Court, to

therefore, obtain 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. However, the law has for centuries

recognized 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.

86. 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


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granting the Intended Appellants Motion - Leave of the Court for an

Abridgement 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.

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

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

a way that affects the Courts conclusions.

88. Like any other discretionary judicial decision, it may be interfered withon 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 law89. 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.


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90. Black's Law Dictionary (8th ed. 2004), at page 631, definesCapricious as follows:

CAPRICIOUScapricious, adj.1. (Of a person) characterized by or guided by unpredictable orimpulsive behavior.2. (Of a decree) contrary to the evidence or established rules of law. Cf.ARBITRARY

91. The Court record does not contain any substantive material evidence andor Court filed submissions which may justify the Learned Trial Judge issuing a

Capricious Order which Stays the proceedings for six months, inter alia, which is

contrary to the evidence and or established rules of law.

Findings of Fact

92. 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 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.

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

The Applicant respectfully asserts this cannot be considered a finding of a

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


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Respondents claims, therefore can hardly justify what has occurred by issuing

prohibition Orders consequently in this case the Learned Trial Judge by virtue

of erroneous punitive actions and or Orders issued against the Applicant,

therefore, the Learned Trial Judge is treating the Applicant as guilty until

proven innocent.

94. 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 documentswith the Court of Queens Bench on Friday, 14 December 2012 requesting an

adjournment is false, therefore this is not decision based on fact.

95. 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 conflict the 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 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.

96. AND UPON the Applicant Notifying the Court on 17 December 2012,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


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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.

97. 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 heard December

17, 2012.

98. 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.

99. 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


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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.

100. 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 allwho 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,

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.


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

Justice into disrepute.

Conclusion

102. Madam Justice Judy Clendening has, in this matter, (metaphoricallyspeaking) performed mental gymnastics in that: Justice Judy Clendening finds

a means of pole vaulting over top of circumventing the Applicants

Originating Process, Court Filed May 31, 2012, with Court of Queens Bench,

Fredericton, Trial Division.

103. Employing illogical processes Learned Trial Judge Judy Clendeninghurtles over top of (in this case) the Originating Process, Madame Justice Judy

Clendening 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.

104. The two Motions which were considered by Justice Judy Clendening;nevertheless, in considering this subject maneuver of Madame Justice Judy

Clendening, it becomes abundantly clear that the subject two Motions (filed

by Respondents) of three Motions were the only Motions Madame Justice

Clendening intended to consider.

105. 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


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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, as in this

particular case, considering matters which concern Andre Murray.

106. 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 by

Madame Justice Clendening relying on her inherent discretion.

107. So vivid is the determination and or Apprehension of Bias of MadameJustice Judy Clendening, demonstratedagainst Applicant Andre, that

consequently, therefore, since Madame Justice Judy Clendening clearly

proceeds to abuse her discretion, in actions and or 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 and or Alice in Wonderland furthermore, Queen of Hearts,

analogous.

108. Furthermore, one can see that Madame Justice Judy Clendeningappears to believe that she 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


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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 Madame

Justice 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 Madame

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.

109. In summary, please kindly consider, that, the Applicants OriginatingProcess Charter Challenge Application and the Applicants Motion was

completely ignored by Madame Justice Judy Clendening, however, Madame

Justice Judy Clendening despite the Respondents having filed two Motions,

both, of which are requiring abridgements and or extensions of time for service

are nevertheless detrimental to the Applicants Originating Process Charter

Challenge Application cause, furthermore, cannot be considered relative the

Applicants Originating Process Charter Challenge Application;

Cost

Cost Orders In Favor Of Self-Represented Litigants

110. In McNichol v. Co-operators General Insurance Company, DrapeauC.J. addresses orders for costs in favor of self-represented litigants, stating:

[43]. . . Rule 59.01, however, makes it clear that costs are in

the discretion of the trial court who can determine by whom


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and to what extent costs shall be paid and that such costs can

be fixed with or without reference to a tariff. In addition,

there appears to be a modern trend regarding the granting ofcosts to unrepresented lay litigants.

McNichol v. Co-operators General Insurance Company,

2006 NBCA 54 (CanLII), at paras. 41 to 45

111. The Intended Appellant offers that after due consideration, thisHonorable Court may conclude similarly as in McNichol, supra, that this

subject matter currently under review, is one, according to under Rule 59.01

that calls for the exercise of this Honorable Courts discretion in a mannerfavorable to a lay litigant; therefore, this Honorable Court may find it

appropriate to order the Respondents to pay costs, which may be typically fixed

at $5,000, in addition to all reasonable disbursements.

112. In Fong, et al. v. Chan, et al., 46 OR (3d) 330 (CanLII), paragraphs 15to 27, Sharpe J.A stated the opinion of the Court regarding the right of self-

represented lay litigants to recover costs.

113. As similarly stated in Fong, et al. v. Chan, et al., 46 OR (3d) 330(CanLII) Costs should only be awarded to those lay litigants who can

demonstrate that they devoted time and effort to work ordinarily done by a

lawyer retained for litigation, and that as a result, self represented litigants

incurred an opportunity cost by foregoing remunerative activity such as the

Intended Appellant before this Honourable Court. It is abundantly clear that the

Applicant devoted much time to present thought-provoking legal arguments

ordinarily submitted by an attorney, further is evidenced by the quality of the

material presented for consideration by this Honorable Court.


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114. Also stated in Fong, et al. v. Chan, et al., 46 OR (3d) 330 (CanLII),three purposes are fostered by allowing the trial judge discretion to award costs

to self-represented litigants:

modern cost rules are designed to foster three fundamental purposes:(1) to indemnify successful litigants for the cost of litigation; (2) to

encourage settlements; and (3) to discourage and sanction

inappropriate behaviour by litigants.

Fong,supra,at para. 22

115.

As is well established by the Courts, lay litigants may recover costs,including counsel fees. This is a clear trend of both the common law and the

statutory law, to allow for recovery of costs by self-represented litigants.

116. Costs may be awarded to those lay litigants, who can demonstratedevoted time and effort, which would ordinarily have been done by a lawyer

retained for same litigation. Further, it is consistent when lay litigants incurred

an opportunity cost by foregoing their usual remunerative activity; therefore,

awarding of additional costs (as in this matter) be a useful tool of the Court to

encourage future settlements and/or to discourage or sanction inappropriate

behavior, as the case may be.

117. The importance of the issues raised by the Intended Appellant wouldfavor this Honourable Court granting costs in favor of the Intended Appellant.

118. In Lang v. Tran, Cavarzan J. addressed the following regardingimportance of the issues:

With respect to the factor involving the importance of the issues, I

note that the rule does not refer to the importance of the issues to the


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parties. No doubt, when matters require resolution by proceeding to

trial the issues are important to the parties. In my view, however,

importance of the issues comprehends matters of generalimportance affecting the rights of society at large, . . .

Lang v. Tran, 2006 CanLII 32627 (ON SC), at para. 11

119. A Charterviolation, which may be cured by the Intended Appellant /Applicants actions, should qualify as an important issue.

120. Black's Law Dictionary defines frivolous as:frivolous, adj. Lacking a legal basis or legal merit; not serious; notreasonably purposeful

Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,

8th

ed., frivolous.(Thomson/West, 2004) at p. 1969

121. Black's Law Dictionary defines vexatious as:vexatious, adj. (Of conduct) without reasonable or probable

cause or excuse; harassing; annoying.

Garner, Bryan A. and Braum A. Garner, Black's Law

Dictionary, 8th

ed., vexatious. (Thomson/West, 2004) at

p. 4842

122. The Respondents Royal Bank of Canada and 501376 N.B. Ltd, a bodycorporate owned by Mecca Corporation record of conduct regarding frivolous

and vexatious Motions filed to Andre Murrays originating process are to date

quantitatively excessive, therefore, clearly designed to impede Andre Murrays

sincere attempts to find remedy within the NOTWITHSTANDING aspects of

Residential Tenancies Act of New Brunswick upon which all residential tenants

of New Brunswick reasonably rely upon, however, Respondents Royal Bank of

Canada and 501376 N.B. Ltd, a body corporate employed litigious actions to


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Schedule A

Adjournment of Court of Queens Bench, Fredericton Trial

Division motions re: Andre Murray v. Royal Bank et al

Reid, Anne (JUS) Mon, Jul 9, 2012 at 2:32 PM

To: "[email protected]" , Hugh Cameron

, "[email protected]"

, "Thriault, Denis (OAG/CPG)"

Andre Murray v. Royal Bank et al

Please be advised that pursuant to the direction of the Court the motions inthe above noted matter scheduled for Friday, July 13th at 9:30 have been

adjourned.

You will be advised immediately when a new date is secured for the

hearing of the motions.

Please confirm receipt via email.

Sincerely,

Anne

Anne Reid

Department of Justice & Attorney General /

Ministre de la justice & procureur gnral

Court Services - Administration

Trial Division

phone: 453-2015

fax: 444-5675

++++++++++++++++++++++++++++++++++++++++++


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To: "[email protected]" , Hugh Cameron

, "[email protected]", "Thriault, Denis (OAG/CPG)"

Further to my previous email, please note that both motions and the applicationare adjourned. None of the matters scheduled for July 13th at 9:30 will be

proceeding.

Thank you,

Anne

Anne Reid




Trial Division

phone: 453-2015

fax: 444-5675

++++++++++++++++++++++++++++++++

In Response, one question please6 messages

Andre Murray Mon, Jul 9, 2012 at 4:18

PM

To: [email protected]

Bcc: [email protected]

July 9, 2012

Anne Reid


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Trial Division

phone: 453-2015

fax: 444-5675

Dear Ann Reid,

in response to your June 9, 2012 advising of

adjournment of Motions. Thank you for yours. Please, kindly

confirm the Application form 16D, is not to be heard July 13,

2012, as scheduled.

I am standing by for your response at your earliest convenience

please.

Sincerely without malice, aforethought, ill will, vexation, or

frivolity ._____________

Andr Murray

31 Marshall Street,

Fredericton, N.B

E3A 4J8

[email protected]

+++++++++++++++++++++++++++++++++++++++++++++++++++++++

Andre Murray Mon, Jul 9, 2012 at 4:23 PM

To: [email protected]


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July 9, 2012

Anne Reid




Trial Division

phone: 453-2015

fax: 444-5675

Dear Ann Reid,

Regarding my earlier e-mail on the subject of the

adjournment of the Motions, would it be possible, today, for me, to

pick up a copy of the Order of the Court adjourning the hearing ofthe subject Motions.

Thank you.


frivolity .

_____________

Andr Murray

31 Marshall Street,

Fredericton, N.B

E3A [email protected]

+++++++++++++++++++++++++++++++++++++++++++++++++++++


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To: Andre Murray

Hello Mr. Murray,

The 16D is not being heard either at that time. A new date for your application will be

assigned as soon as possible.

Thank you for your prompt reply.

Sincerely,

Anne

Anne Reid




Trial Division

phone: 453-2015

fax: 444-5675

++++++++++++++++++++++++++++++++++++++++++++


To: Andre Murray

Mr. Murray,

There is no such Order. A new date will be assigned to your application as well as the

motions.


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Thank you,

Anne

Anne Reid




Trial Division

phone: 453-2015

fax: 444-5675

++++++++++++++++++++++++++++++++++++++++++++++

Andre Murray Mon, Jul 9, 2012 at 4:54 PM

To: "Reid, Anne (JUS)"

July 9, 2012

Anne Reid




Trial Division

phone: 453-2015

fax: 444-5675


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46

Dear Ann Reid,

Regarding your e-mail correspondence of July 9,

2012, advising me that the Application FORM 16D scheduled to be

heard July 13, 2012 and all Motions filed to that Application have

been adjourned; therefore, I require an official document to this

effect without delay, signed by the Clerk of the Court or the Judge

issuing such Orders.

I trust I have made myself clear on this matter.

Please advise, without delay.

Thank you.


frivolity .

_____________

Andr Murray

31 Marshall Street,Fredericton, N.B

E3A 4J8

[email protected]

+++++++++++++++++++++++++++++++++++++++++

Reid, Anne (JUS) Tue, Jul 10, 2012 at 9:29 AM

To: Andre Murray

Mr. Murray,

It is not the practice of the Court to provide anything other than notification to all


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parties when a matter has been adjourned by the Court.

As indicated, a new date will be assigned.

Nothing further will be forthcoming regarding the adjournment.

Thank you,

Anne

Anne Reid




Trial Division

phone: 453-2015

fax: 444-5675

++++++++++++++++++++++++++++++++++++++++++++