may 3, 2012, brief on motion for leave to appeal to court of appeal of new brunswick, file number...

7/29/2019 May 3, 2012, Brief on Motion for Leave to Appeal to Court of Appeal of New Brunswick, File Number 40-12-CA:

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

evidence as may be necessary;

Hearing Rule

1. The Learned Trial Judge rendered a decision without fully hearing

INTENDED APPELLANT, further the Court did unreasonably refuse to allow

INTENDED APPELLANTthe opportunity to rebut statements made at the

March 12, 2012, Hearing, without just cause moreover despiteINTENDED

APPELLANTs objections. The subject Hearing was scheduled for one hour,

despite this the Court ended the Hearing early consequentially not allowing for

INTENDED APPELLANTto rebut and or provide closing statements before

judgment.

2. The Learned Trial Judge did unreasonable refuse to accept

INTENDED APPELLANT s Brief which was an essential part ofINTENDED

APPELLANT s presentation to the Court. The Court did unreasonably refuse

to accept any Brief fromINTENDED APPELLANT, relying on rules of Courtthat the Court confirmed did not apply to Motions.

3. The Learned Trial Judge did repeatedly interruptINTENDED

APPELLANT, not allowing the Appellant to present argument and reasons for

the Honorable Courts consideration.

Bias Rule

4.

The Learned Trial Judge failed and or refused to understand the factsand arguments as presented by the Appellant and instead pursued only the

assertions as presented by the Respondent, this predisposition of the Learned

Trial Judge toward a particular result is such thatINTENDED APPELLANT


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verily perceives a reasonable apprehension of bias that must be is raised. The

Appellant contends that reasonable apprehension of bias is perceivable by the fact

that the learned Trial Judge only accepted argument and evidence which

favored the Defendants position, furthermore, the learned Trial Judge made

obviously erroneous statements at the hearing which reasonably must be based

on incorrect information, contrary to the facts of the case.

5. The Learned Trial Judge did refuse to accept corroborative Affidavit

evidence filed byIntended Appellantand instead relied on Affidavit Evidence

of theIntended Respondentwhich actually confirmed by way of admission,

admitted to the claims and behavior to whichINTENDED APPELLANTwas

seeking relief, again corroboratingINTENDED APPELLANTclaims.

6. The Learned Trial Judge did unreasonably declare at the beginning of

the hearing, before any arguments had yet been made, that the Court would

render a decision that day, whichIntended Appellantverily believes does

demonstrate a reasonable Apprehension of Bias.

7. The Learned Trial Judge did treatINTENDED APPELLANTwith

disrespect and condemnation, claimingINTENDED APPELLANTwas able to

cite the Rules of Court when it favoredINTENDED APPELLANT, indicating

in no uncertain terms, at that point, that the Court has opinions regarding

Plaintiff in that matter, opinions which are irrelevant to the Hearing and does

demonstrate reasonable apprehension of Bias.

Error in Law


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8. The learned Trial Judge erred in law, in unjustly applying the Courts

Discretion in favor of theIntended Respondent.

9. The Learned Trial judge did display abuse of discretion, which is an

adjudicator's failure to exercise sound legal principals, reasonably applicable to

the matters before the Court; however, the Learned Trial Judge rendered

decisions which are unsupported by the evidence therefore are clearly based on

erroneous findings of material fact.

10. The learned trial judge erred in law in not keeping with the general

direction as found expressed in the New Brunswick Rules of court Rule 1.03

(2) by not rendering a just decision, further, the decision was inappropriately

determined by Courts discretion therefore not on its merits.

11. The Learned Trial Judge did error in law, in misapplication of the

Rules of Court to prejudicially BarINTENDED APPELLANTfrom submitting

relevant Case law Authorities and complete Argument found withinINTENDED APPELLANTs Brief for the Courts Consideration, thereby

buttressing the Appellant claims for relief.

Findings of Fact

12. The factual findings made by the Learned Trial Judge are not

supported by the record further unsupported by the evidence, therefore should

not be allowed to stand, because the Appellant can show that the unilateral

findings of the Learned Trial judge are unreasonable, based on a material

misapprehension of the evidence considered, alternatively tainted by a failure

to consider relevant substantive evidentiary material evidence. The effect is


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experienced as significantly unjustified prejudice and or injustice to the

Appellant. The Learned Trial Judge did make a palpable and overriding

error. Learned Trial Judge dismissed theINTENDED APPELLANTs

Affidavit material despite same being corroborative, and instead accepted the

INTENDED RESPONDENTs Affidavit material which was at most times

diametrically irrelevant, and superfluous however the portions which in fact

further corroborated theINTENDED APPELLANTs claims where then

misapprehended by the Honorable Court to be used against theINTENDED

APPELLANT.

13. The Learned Trial Judge, subjectively demonstrated that the Learned

Trial Judge did not appreciate the argument advanced byINTENDED

APPELLANT, consequently failed or refused to understand the legal principles

relied on, in support ofINTENDED APPELLANTs argument, further, the

Learned Trial Judge failed or refused to review and understand the relevant

evidence.

14. Manifest Abuse of Discretion was exhibited when the Learned Trial

Judge asserted a Discretionary Decision unsupported by the evidence choosing

instead to arrive at erroneous findings of a material facts, the Appellant

therefore claims that the Learned Trail Judge has exhibited Manifest Abuse of

Discretion.

15. Under these circumstances it would be a disservice to the

administration of justice to allow this decision to stand.


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16. The Leaned Trail Judge did demonstrate Omissions in reason for

judgment, which amount to material error, because they give rise to the

reasoned belief that the trial judge must have forgotten, ignored or

misconstrued the evidence in a way that affects the Courts conclusions, such as

in this case.

COSTS

17. INTENDED APPELLANT(as Plaintiff) provided argument that Costs

should reasonably be awarded toINTENDED APPELLANT. It follows that lay

litigants who can demonstrate that they devoted time and effort to do the work

ordinarily done by a lawyer retained to conduct the litigation, and that as a

result, lay litigants, by foregoing remunerative activity, incurred an

opportunity cost. It is self evident theIntended Appellantdid expend

considerable time and energy preparing for the Hearings, in contrast the

Intended Respondentdid not prepare or provide any written Brief or

submissions.

18. Learned Trial Judge in exercising her discretion with regards to Cost

award to the Plaintiff is manifestly without merit, exercised contrary to the

facts of the case, therefore excessively disproportionate, therefore, injustice

and prejudice would result if the Cost award is allowed to stand.

19. The Learned Trial Judge did exercise the Courts discretion that may

be qualified as Manifest Abuse of Discretion, as was observed when the

Courts decision was unsupported by the evidence, further, clearly based on a

erroneous finding of material facts, and was exercised arbitrarily or

capriciously as in this case.


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20. In this matter the Learned Trail Judge has demonstrated Manifest

Abuse of Discretion, by inappropriately awarding excessive costs to the

Intended Respondent, moreover the unjust awarding of undeserving cost, as

evidenced by the amount awarded in favor of theIntended Respondentin these

circumstances;Intended Appellantcontends, it would be a disservice to the

administration of justice to allow this Award of Costs to stand.

21. INTENDED APPELLANTdoes apply in the alternative for an

extension of time to issue and serve a Notice of Appeal in the event that the

judge hearing the motion rules that the subject order (or decision) is not

interlocutory for purposes of being granted Leave to Appeal;

22. INTENDED APPELLANTclaims the reason for delay was

unavoidable; moreoverINTENDED APPELLANTclaims there is no prejudice

to theINTENDED RESPONDENTin this matter by granting the herein

requested extension of time for filing and service of the NOTICE OFMOTION FOR LEAVE TO APPEAL.

C.

PART III - ISSUES

Extension of time for service and filing Motion for eave to Appealprocedure is not the master but rather the servant of justice

1.Question for the Court to answer:


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Should the Court, pursuant to Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the

Rules of Court the Court, extend time required for filing and service of the

INTENDED APPELLANTs NOTICE OF MOTION FOR LEAVE TO

APPEAL, Dated April 5, 2012;

2Introduction

23. The Court may at any time dispense with compliance with any rule,

unless the rule expressly or impliedly provides otherwise, procedure is not themaster but rather the servant of justice and should be applied accordingly, to

see that justice is done.

24. A procedural error, including failure to comply with these rules or

with the procedure prescribed by an Act for the conduct of a proceeding, shall

be treated as an irregularity and shall not render the proceeding a nullity, and

all necessary amendments shall be permitted or other relief granted at any

stage in the proceeding, upon proper terms, to secure the just determination of

the matters in dispute between the parties.

25. Canadian Judicial Council Statement of Principles on Self-represented

Litigants and Accused Persons:

B. PROMOTING EQUAL JUSTICESTATEMENT:

Judges, the courts and other participants in the justice system have aresponsibility to promote access to the justice system for all persons onan equal basis, regardless of representation.

PRINCIPLES:


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1. Judges and court administrators should do whatever is possible toprovide a fair and impartial process and prevent an unfair disadvantage

to self-represented persons.

2. Self-represented persons should not be denied relief on the basisof a minor or easily rectified deficiency in their case.

3. Where appropriate, a judge should consider engaging in such casemanagement activities as are required to protect the rights and interestsof self-represented persons. Such case management should begin asearly in the court process as possible.

26. As stated in the above Canadian Judicial Council Statement of

Principleson Self-represented Litigants and Accused Persons, Self-represented

persons should not be denied relief on the basis of a minor or easily rectified

deficiency in their case, furtherINTENDED APPELLANTrespectfully asserts,

that that the balance of convenience favors the granting of the relief therefore

sought.

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The Grounds

27. Pursuant to Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court,

the Court, may, extend time required for filing and service of theINTENDED

APPELLANTs NOTICE OF MOTION FOR LEAVE TO APPEAL, Dated

April 5, 2012;

28. Maxim - Neminem laedit qui jure suo utitur. A person who exercises

his own rights injures no one.


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29. Maxim -Bonum judex secundum aequum et bonum judicat, et

aequitatem stricto juri praefert. A good judge decides according to justice and

right, and prefers equity to strict law. Co. Litt. 24.

30. Maxim -In all affairs, and principally in those which concern the

administration of justice, the rules of equity ought to be followed.

31. The legal website duhaime.org provides the following insight into the

principles of equity: at

(http://www.duhaime.org/LegalDictionary/E/Equity.aspx)

Equity Definition:

A branch of English law which developed hundreds of years ago whenlitigants would go to the King and complain of harsh or inflexible rulesof common law which prevented "justice" from prevailing.

In the 1870s, England and its colonies merged the courts but not thedoctrines (in statutes called "judicature"). Although under the umbrellaof a unified judiciary, where the principles conflicted, equity was stated

to have precedence over the common law.

Ontario's initiative is a good sample, now known as the Courts ofJustice Act (1990 RSO Chapter C-43; v. 2007), where at 96:

It gives equity rank over the common law ("where a rule ofequity conflicts with a rule of the common law, the rule ofequity prevails");

Merges the Courts by requiring that there shall no longer be aseparate court for equity ("Courts shall administer concurrently

all rules of equity and the common law"); and

Only federally-appointed judge, also known as "superior-levelcourts", may consider equity claims or grant equity relief ("onlythe Court of Appeal and the Superior Court of Justice, exclusive


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of the Small Claims Court, may grant equitable relief, unlessotherwise provided").

A whole set of equity law principles were developed based on thepredominantfairness, reason and good faith characteristics of equity asreflected in some of its maxims: equity will not suffer a wrong to bewithout a remedy or he who comes to equity must come with cleanhands.

32. The New Brunswick Judicature Act, RSNB 1973, c J-2, also

provides for equity law principles based on the predominant principles of

fairness, reason and good faith which are characteristics of equity, in the

following section 26(8), 32 and 39 (emphasis added):

26(8) Subject to the aforesaid provisions for giving effect toequitable rights and other matters of equity in manner aforesaid,and to the other express provisions of this Act, the Court andevery judge thereof shall recognize and give effect to all legalclaims and demands, and all estates, titles, rights, duties,obligations and liabilities existing by the common law orcreated by any statute, in the same manner as the same wouldhave been recognized and given effect to by the SupremeCourt, either at law or in equity, if The Judicature Act, 1909

had not been enacted.

32 Stipulations in contracts as to time or otherwise, whichwould not before the commencement of The Judicature Act,1909 have been deemed in a Court of Equity to be or to havebecome of the essence of such contracts, shall receive in theCourt the same construction and effect as they wouldheretofore have received in Equity.

39 Generally, in all matters not hereinbefore particularlymentioned, in which there is any conflict or variance between

the rules of equity and the rules of the common law withreference to the same matter, the rules of equity shall prevail.


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33. Rule 1.03(2) of theRules of Court direct the Court so that these rules

shall be liberally construed to secure the just, least expensive and most

expeditious determination of every proceeding on its merits (to safe guard

against harsh or inflexible interpretation of the rules of Court or Common

Law which may prevent "justice" from prevailing).

34. Rule 2.01 of theRules of Court provides the Court with the express

tool to dispense with compliance with any rule (the rules of equity shall

prevail).

35. Rule 2.02 of theRules of Court compels Courts to overlook

procedural errors and to take appropriate measures to secure the just

determination of the matters in dispute between the parties (fairness, reason

and good faith)

36. Rule 2.04 of theRules of Court direct the Court, that in any matter of

procedure not provided for by the Rules of Court or by an Act, the court may,on motion, give directions.(to safe guard against harsh or inflexible

interpretation of the rules of Court or Common Law which may prevent

"justice" from prevailing).

37. Rule 3.02 of theRules of Court direct the Court on such terms as may

be just, to extend the time prescribed by an order or judgment or by the Rules

of Court; (to safe guard against harsh or inflexible interpretation of the

rules of Court or Common Law which may prevent "justice" from

prevailing).


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4.

Rule 1.03, 2.01. 2.02, 2.04 and 3.02

38. Maxim -Justitia nemine neganda est. Justice is not to be denied.

39. Maxim -Lex non deficit in justitia exibenda. The law does not fail in

showing justice.

40. The Rules of Court are that which enables rights to be delivered and

claims to be enforced. As such, a Court should interpret and apply the Rules of

court to ensure, to the greatest extent possible, that there is a determination of

the substantive matters in dispute between the Parties, unless the application of

the Rules of Court would result in a serious prejudice or injustice.

41. Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court are

reproduced as follows:

1.03 Interpretation(1) Except where a contrary intention appears, theInterpretationActand the interpretation section of theJudicatureActapply to these rules.(2) These rules shall be liberally construed to securethe just, least expensive and most expeditious determinationof every proceeding on its merits.(3) The arrangement of these rules and their titleheadings are primarily intended for convenience, but maybe used to assist in their interpretation.

2.01 The Court Dispensing with ComplianceThe court may at any time dispense with compliance with any rule,unless the rule expressly or impliedly provides otherwise.

2.02 Effect of Non-Compliance


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A procedural error, including failure to comply with these rules or withthe procedure prescribed by an Act for the conduct of a proceeding,

shall be treated as an irregularity and shall not render the proceeding anullity, and all necessary amendments shall be permitted or other reliefgranted at any stage in the proceeding, upon proper terms, to secure thejust determination of the matters in dispute between the parties. Inparticular, the court shall not set aside any proceeding because it oughtto have been commenced by an originating process other than the oneemployed.

2.04 Where No Procedure ProvidedIn any matter of procedure not provided for by these rules or by an Actthe court may, on motion, give directions.

3.02 Extension or Abridgment(1) Subject to paragraphs (3) and (4), the court may,on such terms as may be just, extend or abridge the timeprescribed by an order or judgment or by these rules.(2) A motion for extension of time may be made eitherbefore or after the expiration of the time prescribed.(3) Where the time prescribed by these rules relatesto an appeal, only a judge of the Court of Appeal maymake an order under paragraph (1).(4) Any time prescribed by these rules for serving,

filing or delivering a document may be extended orabridged by consent.

42. Regarding Rules Rule 2.02, In Juniberry Corp. v. Triathlon Leasing

Inc., 1995 CanLII 6225 (NB C.A.) Justice TURNBULL, J.A. stated the

following regarding the application of Rule 2.01 beginning at page 7 through

to page 8 as follows:

Rule 2.02 further directs:

... all necessary amendments shall be permitted ... at anystage in the proceeding, upon proper terms, to secure the

just determination of the matters in dispute between theparties.


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These are rules of procedure as opposed to thesubstantive law which defines substantial legal rights and claims.

The rules are the vehicle that enables rights to be delivered andclaims to be enforced. As such, a Court should interpret andapply the rules to ensure, to the greatest extent possible, thatthere is a determination of the substantive law unless theapplication of the rules would result in a serious prejudice orinjustice. Accordingly, amendments to pleadings are generallyallowed. That is the reason for the use of such phrases as"determining the real questions in dispute" in Rule 27.10 and"just determination of the matters in dispute" in Rule 2.02. As ageneral principle, therefore, the rules of procedure should not beused to prevent the delivery of rights; nor should they be used to

preclude the enforcement of claims which are derived from thesubstantive law.

43. The Rules of Court are rules of procedure as opposed to substantive

law which defines substantial legal rights and claims. The Rules of Court are

the vehicle that enables rights to be delivered and respective claims to be

enforced. As such, a Court should interpret and apply the rules to ensure, to the

greatest extent possible, that there may be a final determination based on the

applicable substantive law unless however the application of the rules wouldresult in a serious prejudice or injustice. In this case from the March 13, 2012,

transcript decision, the 21 day time difference between serving theINTENDED

APPELLANTs NOTICE OF MOTION FOR LEAVE TO APPEAL, Dated

April 5, 2012, which should have been served March 20, 2012 and the actual

date of service of April 10, 2012, does not cause anyprejudice or injustice to

theINTENDED RESPONDENT. Between the time of being served with the

INTENDED APPELLANTs NOTICE OF MOTION FOR LEAVE TO

APPEAL, Dated April 5, 2012 and the hearing of this matter reasonably

allowed a full 27 days to prepare for the scheduled hearing. Accordingly,

extensions of time are generally allowed, so that there may be a determination


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of the real questions in dispute and just determination of the matters, as

expressed by Rule 2.02. Rules of procedure should not be used to prevent the

delivery of rights; nor should they be used to preclude the enforcement of

claims which are derived from the substantive law.

44. In Western Surety Co. v. National Bank of Canada, 2001 NBCA 15

(CanLII) J. ERNEST DRAPEAU, J.A.. stated the following regarding

application of Rule 2.02. May it please the Honorable Court the found at

paragraph 91 as follows:

[91] Rule 2.02 of theRules of Court enjoins courts to overlookprocedural errors and to take appropriate measures to secure the justdetermination of the matters in dispute between the parties.

45. The word enjoins was of particular note to the Applicant, the

definition is provided below from Black's Law Dictionary (8th ed. 2004) , Page

1608 describes ENJOIN as follows:

enjoin, vb. - 2. To prescribe, mandate, or strongly encourage

46. Furthermore in LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII)

RIDEOUT, J. stated regarding applying Rule Rules 1.03(2); 2.02; 3.02(1) and

(2) REFERENCE: (please see paragraph 11 to 19) that Honorable Court must

consider what is necessary to see that justice is done? as follows:

[15] In particular, he relied on the case of Simpson v.Saskatchewan Government Insurance Office, 65 D.L.R.(2d) 328, and

cited the following passage from page 333 of the decision:

6 "In an application to renew a writ of summons the basicquestion which faces the court is, what is necessary to see thatjustice is done? That question must be answered after a careful


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study and review of all the circumstances. If the refusal torenew the writ would do an obvious and substantial injustice to

the plaintiff, while to permit it is not going to work anysubstantial injustice to the defendant or prejudice thedefendant's defence, then the writ should be renewed. Thisshould be done even if the only reason for non-service is thenegligence, inattention or inaction of the plaintiff's solicitorsand notwithstanding that a limitation defence may have accruedif a new writ was to be issued. If the non-service of the writ wasdue to the personal actions of the plaintiff, that, of course,would be a fact to be considered by the court. Each case shouldbe considered in the light of its own peculiar circumstances andthe court, in the exercise of its judicial discretion, should be

determined to see that justice is done."

7The rule which emerges from these cases unequivocallyrecognizes that the court's main concern must be to see thatjustice is done and to make certain that the extension of time forservice does not prejudice or work any injustice to either of theparties...

[19] I am satisfied that the delay in service was caused by thelawyer which in the circumstances should be treated as a neutral event.I am also satisfied that the Defendants insurer has not and will not

suffer any prejudice if the Plaintiffs motion is granted. However,prejudice will occur to the Plaintiff if the time period for service is notextended. Therefore justice will be done if the time period for serviceis extended.

47. Justice is defined by Black's Law Dictionary (8th ed. 2004), at Page

2528 as:

justice. 1. The fair and proper administration of laws.

48. What is necessary to see that justice is done? A refusal to grant the

requested time extension would do an obvious and substantial injustice to the

INTENDED APPELLANT, if not overlooked by the Court would defeat the


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INTENDED APPELLANTs Motion, on a minor technicality, this subject time

extension and the denial thereof, cannot be observed as justice, or fair and

proper administration of laws. While to permit the requested time extension is

not going to work any substantial injustice to theINTENDED RESPONDENT

or prejudice theINTENDED RESPONDENT, therefore the extension should be

granted. This should be done even if the only reason for non-service is the

error, inattention or inaction of theINTENDED APPELLANT. In this case late

service of theINTENDED APPELLANTs NOTICE OF MOTION FOR

LEAVE TO APPEAL, Dated April 5, 2012 was due to an honest mistake of

the self representedINTENDED APPELLANT, in reading and applying the

rules of Court. TheINTENDED APPELLANTrequests that the Honorable

Court exercise its judicial discretion, to see that justice is done.

49. In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A.

LaVIGNE stated the following regarding granting an extension of

time.; REFERENCE: (Please see at paragraph 16 19),:

16. Rule 3.02 states:

3.02 (1) Subject to paragraphs (3) and (4), thecourt may, on such terms as may be just, extend orabridge the time prescribed by an order or judgmentor by these Rules.

(2) A motion for extension of time may be madeeither before or after the expiration of the timeprescribed. ...

17. Rule 2.02 clearly stipulates that failure to comply with the Rulesmust be treated as an "irregularity", which can be remedied to securethe just determination of the matters in dispute.


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18. Rule 1.03(2) provides that this Court should apply the Rules soas to secure a just, least expensive and most expeditious determination

of every proceeding on its merits.

19. The main concern in cases such as this is to see that justice isdone and to make certain that any extension of time for service does notprejudice or work injustice to the parties involved.

50. Again it is often found expressed by the judiciary, that themain

concern in cases such as this is to see that justice is done and to make certain

that any extension of time for service does not prejudice or work injustice to

the parties involved, nevertheless, afailure to comply with the Rules must be

treated as an "irregularity", which can be remedied to secure the just

determination of the matters in dispute, further the Court should apply the

Rules, so as to secure a just, least expensive and most expeditious

determination of every proceeding on its merits.

51. In K.C. v. New Brunswick (Health and Community Services), 1998

CanLII 17954 (NB CA) ( http://canlii.ca/t/25rlz) Chief Justice J. ERNEST

DRAPEAU, J.A., stated the following regarding Rule 3.02(1) as follows:

[Page 3]Rule 3.02 (1) permits the court to extend the time prescribed byan order, judgment or the rules. Thus, where the statute does notfix a deadline the court may extend the time under theauthority of Rule 3.02(1).

52. In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The Honorable

Chief Justice J. Ernest Drapeau regarding whether the appellant had undulydelayed preparation and perfection of his appeal, REFERENCE: (staring at

page 1 through to and including page 3) stated as follows:


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This is a motion by the respondents, other than Par SyndicationGroup Inc., for an order dismissing the appeal pursuant to Rule

62.23(1)(c) of the Rules of Court on the ground that the appellant hasunduly delayed preparation and perfection of his appeal.

Dismissal of an appeal for failure to comply with Rule 62.15 is onlyappropriate "where it is shown that the interests of justice would be ill-served by a less drastic measure." See New Brunswick (Minister ofFamily and Community Services) v. A.N., [2002] N.B.J. No. 373(C.A.)

- 3 -

(Q.L.). The same approach is warranted when Rule 62.23(1)(c) isbrought into play.

In our view, the interests of justice would be better served by anorder under Rule 62.24(1)(a)(ii) directing the appellant to perfect hisappeal within a specified time.

Disposition

The motion for an order under Rule 62.23(1)(c) is dismissed. Theappellant is directed to perfect his appeal on or before December 19,2003, failing which it will stand dismissed. The unique circumstancesof the present case warrant an order of costs against the moving partiesin favour of the self-represented appellant. We fix those costs at $750.There will be no order of costs in favor of Par Syndication Group Inc.

53. To not grant the requested time extension, would have the effect of a

dismissal of theINTENDED APPELLANTMotion for leave to appeal, without

hearing the merits of the application. A dismissal of the matter for failure to

comply with a Rule is only appropriate, where it is shown that the interests of

justice would be ill-served by a less drastic measure.


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54. Applicant Andr Murray is confident that it is the intention of The

Honorable Courts of New Brunswick in "determining the real questions in

dispute" to not allow procedural matters to cloud or impede our journey to find

remedy in this matter. Applicant Andr Murray contends that the balance of

convenience favors the granting of the relief sought, which is a time extension.

Granting the requested time extension will not prejudice theINTENDED

RESPONDENTin any way. Not granting the requested Orders while be an

undeniable prejudice to theINTENDED APPELLANT, who would be barred

from relief without just cause (which would contrary the Rules of Court,

jurisprudence and the principles of equity favoring the Granting of the Orders).

Part IVA concise statement setting out clearly and particularly in what respect

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

any irregularity complained of or any objection intended to be relied on,

specifying the grounds intended to be argued, including reference to any

statutory provision or rule intended to be invoked);

The appellants grounds for this appeal are as follows:

Hearing Rule

55. TheIntended Appellantrelies upon Natural Justice and procedural

fairness which requires administrators adhere to a fair decision-making

procedure. The learned trial judge erred in law in not recognizing the principal

of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the

other side'). The Court rendered a decision without fully hearing theIntended

Appellant, further the Learned Trial judge did error by did most egregiously

refusing to allow theIntended Appellantopportunity for rebuttal of argument

forwarded by the Defendant at the March 12, 2012, Court Hearing of subject


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matter, moreover, despite theIntended Appellants objections. The Court

during preliminary matters did unreasonable refuse to accept theIntended

Appellants Brief which was an essential part of theIntended Appellants

presentation to the Court.

56. In Matondo v. Canada (Minister of Citizenship and Immigration),

2005 FC 416 (CanLII), The Court did comment on the Right to be heard at

paragraph 18 and 19 as follows:

RIGHT TO BE HEARD

[18] Perhaps there are those who have to be reminded that the rightto be heard is at the heart of our sense of justice and fairness.

...That no man is to be judged unheard was a precept known tothe Greeks, inscribed in ancient times upon images in placeswhere justice was administered, proclaimed in Seneca's Medea,enshrined in the scriptures, mentioned by St. Augustine,embodied in Germanic as well as African proverbs, ascribed inthe Year Books to the law of nature, asserted by Coke to be aprinciple of divine justice, and traced by an eighteenth-centuryjudge to the events in the Garden of Eden.

[Footnotes omitted]

de Smith, Woolf and Jowell,Judicial Review of Administrative Action(5th ed) (London: Sweet & Maxwell, 1995), pp. 378-379.

[19] The reference to the Garden of Eden is a reference to Dr.Bentley's case (The King v. the Chancellor, & c., of Cambridge, (1723)1 Stra. 557). This is what Byles J. had to say about it in Cooper v. TheWandsworth Board of Works (1863), 143 E.R. 414 at p. 420:

.. The judgment of Mr. Justice Fortescue, in Dr. Bentley's case, issomewhat quaint, but it is very applicable, and has been the law fromthat time to the present. He says, "The objection for want of notice cannever be got over. The laws of God and man both give the party anopportunity to make his defence, if he has any. I remember to have


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heard it observed by a very learned man, upon such an occasion, thateven God himself did not pass sentence upon Adam before he was

called upon to make his defence...

57. The right to be heard is at the heart of our interpretation of justice and

fairness, further the laws of God and man both give a party an opportunity to

make his defence, if he has any. This Hear the Other Side most important,

consequential, or influential dictum in law and Rule requires that a person

must be allowed an adequate opportunity to present their case where and when

definite interests and rights may be adversely affected by a decision-maker. To

ensure that these rights are respected, the deciding authority must give both theopportunity to prepare and present evidence and to respond to arguments

presenting by the opposite side. The herein subjectINTENDED APPELLANT

attempted to present to the Learned Trial Judge, for consideration, a Post

Hearing Brief which provided a coherent and extensive argument, case law and

supporting authorities, so that the Court would have this beneficial tool to

consider when contemplating the remedy therefore providing the relief that

would be appropriate in the circumstances for all concerned parties not only

theINTENDED APPELLANT. This subject Post Hearing Brief was refused by

the learned trial judge which must be irrational and or alternatively, as the case

may be, explainable only as a reasonable apprehension of bias.

58. When conducting an inquiry, in relation to a dispute, it is important

that the person or matter being complained against is advised of the allegations

in as much detail as possible and given the opportunity to reply to the

allegations. In this case before the Court, theINTENDED RESPONDENTwas

not provided this subject opportunity. The relevant Post hearing brief that the

Learned Trial Judge refused to accept was complimentary and an expansion of


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that same argument, providing relevant case law and authorities on point, and

augmenting or complementary to material already placed in the served Notice

of Motion.

59. The Appellant relies, that Natural Justice and procedural fairness

requires administrators adhere to a fair decision-making procedure. The

learned trial judge erred in law in not recognizing the principal of law

expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other

side'). This Maxim, in law means: no person shall be condemned, punished or

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

heard that person, in this case to fully hear theINTENDED APPELLANT

required the Court to consider a Post Hearing Brief, an essential component of

theINTENDED APPELLANTs argument moreover a valuable reasonably

beneficial tool to arriving at a relevant decision. Fair decision-making

procedure, would have been to accept theINTENDED APPELLANTs Post

Hearing Brief and consider same before rendering a fair and balanced decision,

based therefore on being well informed and abreast of all relevant facts andauthorities.

60. InMoreau-Brubv. New Brunswick (Judicial Council), 2002 SCC 11

(CanLII), [2002] 1 S.C.R. 249, the Supreme Court of Canada confirmed at

paragraph 35, that the right to be heard is part of the Courts obligation to act

fairly, however, the duty of an administrative body to adhere to that right is to

be decided on a case by case analysis:

The duty to comply with the rules of natural justice and to follow rulesof procedural fairness extends to all administrative bodies acting understatutory authority (see Nicholson v. Haldimand-Norfolk Regional


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Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1S.C.R. 311; Cardinal v. Director of Kent Institution, 1985 CanLII 23

(SCC), [1985] 2 S.C.R. 643, at p. 653; Baker, supra, at para. 20;Therrien, supra, at para. 81). Within those rules exists the duty to actfairly, which includes affording to the parties the right to be heard, orthe audi alteram partem rule. The nature and extent of this duty, inturn, "is eminently variable and its content is to be decided in thespecific context of each case" (as per L'Heureux-Dub J. in Baker,supra, at para. 21)

61. In Munn v. Rust, 2006 NBCA 87 (CanLII) Justice M.E.L. LARLEE,

J.A. stated the following regarding a matter where the Judge was refusing toconsider a parties application to cross-examine the deponents of the affidavits,

consequentially, the motion judge failed to exercise the Courts discretion

judicially provided here below from paragraph 13 to through 16 as follows:

[14] I am of the view that, in refusing to considerMr. Munns application to cross-examine the deponents of theaffidavits, the motion judge failed to exercise her discretion judicially.Mr. Munn had a right to be heard on that issue, and procedural fairness

required the motion judge to hear him. It is only after hearing Mr.Munns arguments in support of his request to cross-examine and anyarguments made in reply, that the motion judge would have been ableto judicially exercise the discretionary powers conferred by Rule39.03.

[15] In my view, the appeals should be allowed onthe common ground raised in both Notices of Appeal that allege thatthe motion judge erred in the exercise of the discretion conferred byRule 39.03. It follows that the judges order striking out those portionsof the Plaintiffs Statement of Claim which assert a claim against the

Defendant, Edward B. Rust Jr., must be set aside.

62. In refusing to considerINTENDED APPELLANTs Post Hearing

Brief, and refusing to allow theINTENDED APPELLANTto rebut the


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statements made by theINTENDED RESPONDENT, the motion judge failed

to exercise her discretion judicially.INTENDED APPELLANThad a right to

be heard on the issues before the Court, and procedural fairness required the

motion judge to hear him. It is only after consideringINTENDED

APPELLANTs Post Hearing Brief arguments in support of his Motion, that the

motion judge would have been able to judicially exercise the discretionary

powers to grant or dismiss theINTENDED APPELLANTs Motion on its

merits. Consequentially, without fully considering theINTENDED

APPELLANTs material, the entire merits of the matter cannot reasonably be

deemed to have been considered.

63. On the 26th day of April, 2012, I caused the herewithin below

indicated time marked excerpts to be precisely duplicated and transcribed to

the best of my ability word for word as per the Court Stenographer CD

recording provided to me for the March 12, 2012 Hearing of Motion before

Madame Justice Clendening. I further confirm that close to 98% of the entire

significant recording of that Subject Court Hearing has been transcribed andprovided below, for that purpose, precisely time marked as indicated on the

Court Stenographers CD recording of subject Court Hearing of Motion before

Madame Justice Clendening March 12, 2012: Please note that I have provided

my comments as indented areas below each excerpt as the case may be.

64. 4:06:10 PM COURT: This is a Motion between Andre Murray anddumm I guess Trina Rodgers Sigh although Sigh at this stage ahh Trina

Rodgers is not ughm actually listed as a Defendant but I am assuming Andothers is ahh Mr. Murrays way of indicating that tum she is a Defendant

65. 4:06:37 PM COURT: this is as far as I can tell, from trying toread the Motion


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An application by Mr. Murray for costs because of the allegation thatTrina Rodgers has cost him a time and money because she is alleged

by him to be evading service.

I Andre Murray perceive that there is a serious misapprehension by thelearned Trial Judge of the Orders that which where requested dealtprimarily, as a request, that Substituted Service and sequentialValidation of Substituted Service be granted; that the unnecessarycosts to date resulted from Defendant Trina Rodgers Avoidance ofService and the granting of these Service methods will reduce costs.

66. 4:06:37 pm JUDGE: All right Mr. Murray you have until 4:30 youwere given this time expedited timeahhh on the basis of a half hour then I

will need the next fifteen minutes to give my decision which I will givetoday.

67. 4:07:18 JUDGE: And I note that Mr. and Miss Rodgers your hererepresenting yourself ! ?

I Andre Murray perceive that the Learned Trial Judge has a previous

or personal knowledge of the Defendants, as they have not voluntarily

identified themselves nor were they asked to identify themselves. I must

ask myself how the learned judge knows that Trina Rodgers is Trina

Rodgers also if this was a reasonable deduction then the man with

Trina Rodgers should reasonably be her lawyer or legal council. How

did the judge know Mr. Rodgers without him being first introduced?

68. 4:07:18 PM PLAINTIFF: As a preliminary matter your Honour, Ihave a post hearing brief I would like to submit to the Court

69. 4:07:22 PM COURT: Nope

70. 4:07:23 PLAINTIFF: Your not going to accept a post hearing brief?

71. 4:07:26 PM COURT: Nope

72.

4:07:27 PLAINTIFF: Why?

73. 4:07:28 PM Court : Because I didn t ask for one. And there isnothing in the rules which allows you to file one. If I wanted a post trial brief I


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would make an Order for a post trial brief. We havent even done the trial yet.Sooo

I Plaintiff Andre Murray perceive that the Learned Judge: MadameJustice Clendening is extremely unbalanced as we see that despite the

fact that the Court Hearing is a MOTION reasonably Madame Justice

Clendening continues to be offered by the Plaintiff a Post Hearing

Brief despite this Madame Justice Clendening continues to speak of a

Post Trial Brief.

Point is this is not a TRIAL it is a Hearing of MOTION.

74. 4:07:37 PM COURT: Just get on with itI dont need it I am goingto give you my decision today

75. 4:07:40 PLAINTIFF: Will ahh

76. 4:07:41 PM COURT interrupting: I dont want it

77. 4:07:42 PLAINTIFF: If this was a pre-trial brief would you acceptit?

78. 4:07:46 PM COURT: I have all your stuff for pre-trial And

79. 4:07:49 PM PLAINTIFF: No you do not you do not have a brief yet.So thats why

80. 4:07:50 PM COURT: If you interrupt me one more time this matterwill be ended before it begins.

I Plaintiff Andre Murray perceive that the Learned Judge: Madame

Justice Clendening is at this point exhibiting intolerance; as a self

represented litigant eager to contribute the Plaintiff reasonably in this

case believes the Honorable Court has completed a thought to be

completed, therefore, he asserts that a brief has not been provided; the

Plaintiff has mistakenly called the Brief POST when in reality it

intended simply as a Brief,

81.

4:07:57 COURT: I do not want a pre-trial Brief and I do not want apost Trial Brief I do not need, either, and if you were going to file a pre-trialbrief you would have to do it according to the Rules. Of which you seem verycapable of reciting when it is to your benefit. So no, you have not filed itproperly under Rule 37, 38 and 39,and I am not taking your pretrial or post


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trial brief, so you go ahead and present me your arguments on this one motiontoday.

I Plaintiff Andre Murray perceive Learned Judge: Madame JusticeClendening is now becoming further unbalanced we see Justice

Clendening now contradicting herself: Rules denied now exist as she

quotes them and MOTIONS are TRIALS

4:07:28 PM COURT: And there is nothing in the rules

which allows you to file one. Compared to following time mark:

4:07:57 COURT: you have not filed it properly under Rule 37, 38 and

39, and I am not taking your pretrial or post trial brief,

82. 4:08:25 PM PLAINTIFF: can you please point to me the Rule ofCourt which bans me from from having to er ra makes an obligation for meto have to file this before the hearing

83. 4:08:35 PM COURT: Of Course I will,judge shuffling papers..

84. 4:08:42 PM COURT: pre hearing briefs succinct outline of statement48 hours prior to the hearing and you have to serve it on all parties

85.

4:08:53 PM PLAINTIFF: Is that for Motions?

86. 4:08:54 PM COURT: Thats for Motions, because MOTIONS arentgenerally required for briefs to be filed, so we go by the rules for other- ahhahh other matters to be settled; listen your wasting your time you have allottedfor your arguments so present your arguments.

87. 4:09:11 COURT: I do not want your brief, I do not want a pre-trialbrief, I do not want a post trial brief, I wana hear your arguments and I wanahear them now

88.

4:09:18 Andre Murray OK So if I understand you correctly, you arestating that the Rules of Court do not stop me from submitting a pre trial briefand you are actually applying rules of Court that do not apply to Motions, isthat correct?


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89. 4:09:29 PM COURT: Yeah thats correct so get onOK

90. 4:09:32 PM Plaintiff: I have a right to be heard and.

91. 4:09:33 PM COURTinterrupting: YepYep you have a right to beheard

92. 4:09:36 Plaintiff: and for the Court to accept..

93. 4:09:39 PM COURTinterrupting yelling: Mr. Mr. Murray if youwant me to take a pre trial brief or a post trial brief into account you file it so Ihave it read before I hear the matter now that is my ruling that is mydiscretion do your argument now.

94. 4:09:54 Plaintiff: Ok regarding the post trial brief the reason I wascalling it a post trial brief is because I understand that by submitting it rightnow you do not have time to read it before the hearing so this gives you anopportunity to read it after the fact.

95. 4:10:07 PM COURTinterrupting: I am not going to read it after thefact I am giving you your decision today I dont need to.

96. 4:10:12 pm Plaintiff: Is your discretionary decision based in law Isthere some law, in which you are basing this on, some rule of law?

97. 4:10:24 PM COURT: Present your argument, I am not speakingabout it again, I gave you my ruling..

98. 4:10:33 pm Plaintiff: For the record, I want the Court to note myobjection, regarding the Post Hearing Brief

99. 4:10:36 PM COURT interrupting: Your your objection is noted, yousaid it 6 times, I dont need to hear it again, give me your presentation now.

100. 4:11:40 pm Court: Stop talking for a minute Mr. Rodgers is not

going to speak I can let him seat at the table beside his wife if I choose to.Now she is not going to speak now if she needs to present anything Mrs.Rodgers will be doing it. Now, get on with your presentation now


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101. 4:42:09 PLAINTIFF: each time that I have to process service thesedocuments myself I have to actually take time out off my own work.

102. 4:42:14 PM COURT interrupting: Mr. Murray your time is up,youve been repeating yourself over and over again.if youve gotsomething new to add thats fine but I dont need to hear the same commentsover and over again

103. 4:42:27 PLAINTIFF: I dont think Ive yet said that each time that Iprocess serve documents that I have to take time take time off my ownoccupation to do this and it is inappropriate to do this..

104. 4:42:33 PM COURT interrupting: Its your time is up could you sit

down please Mrs Rodgers do you have any comments..

105. 4:46:57 PM COURT as Trina has finished: With respect to yourMOTION here today for costs

106. 4:47:00 PLAINTIFF: May I rebut

107. 4:47:01 PM COURT: No I gave you my ruling. Stop it! Im going togive you the rest of the ruling.

108. 4:47:05 PLAINTIFF: Usually the procedure though allows for a

rebuttal

109. 4:47:07 PM COURT interrupting yelling: No there is no rebuttal! Igave you I gaet . SIT.. SIT DOWN.. SIT DOWN speaking to theSheriff: will you go over and sit beside him please

110. 4:47:19 PM COURT: Dont get up again Im giving my decisionnow.

111. 4:47:40 PM COURT: There is absolutely nothing in your affidavitsor in your requests in your MOTION that would allow me to Order costs

against Mrs Rodgers. The material you filed the Affidavits for the most partare rambling, their incoherent, their frivolous, they are indecipherable and theydont amount to anything in the end.


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112. 4:48:04 PM COURT: I have no Jurisdiction on the basis of the kindof information that you have filed to give costs against Mrs Rodgers I have no

Jurisdiction to Order Substituted Service as Mrs Rodgers indicated shewouldnt be hear today if she hadnt been served.

113. 4:48:23 PM COURT: And I wouldnt open the door for people Idont know either.

114. 4:48:27 PM COURT: So if you want to Serve her with a processServer you hire a professional Process Serving Company. Otherwise send themaccording to the other parts of rules 18.00 you can do it by certified mail youcan do it by registered mail and I dont have to accept your anecdotal evidencethat you went to the Post Office and someone told you that they wouldnt

accept service. Thats hearsay I dont accept it and it is not reliable.

115. 4:48:54 PM COURT: In fact almost everything you have in yourAffidavits and those of your two so called Process Servers is suspect I dontaccept it.

116. 4:49:06 PM COURT: Its anecdotal and its frivolous and itsmeaningless and for those reasons I dismiss your motion for costs I dismissyour Motion for a Order of Substituted Service and I Order you to pay $500costs forthwith to Mrs Rodgers. Thank you very much.

117.

4:49:25 PM Plaintiff: This is outrageous.!

118. ALL RISE !

119. The Learned Trial Judge did commit reversible error, by refusing to

hear theINTENDED APPELLANTbecause of, but not limited to the following:

The Learned Trial Judge refused to accept the prepared Post HearingBrief, (part of theINTENDED APPELLANTs presentation to theCourt) which included the authorities and case law which reinforcedtheINTENDED APPELLANTs legal position in requesting the relief

sought. Because of the obvious time constraints at the hearing theINTENDED APPELLANTcould not read the entire Post HearingBrief to the Court, without considering this essential component oftheINTENDED APPELLANTs argument the Learned Trial Judge


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did not fully hear theINTENDED APPELLANT, therefore theINTENDED APPELLANTs essential Right to be Heard was violated.

The Learned Trial Judge refused to allow theINTENDED APPELLANT

the opportunity to rebut what was stated by theINTENDEDRESPONDENT. TheINTENDED APPELLANTshould have beenprovided an opportunity to address the statement made byINTENDED RESPONDENTas a right to be heard on the matter,further theINTENDED APPELLANTwas threatened with Sheriffintervention, to reinforce Court Refusal to hearINTENDEDAPPELLANT.

The Learned Trial Judge repeatedly interrupted and stopped theINTENDED APPELLANTfrom expressing the idea and informationtheINTENDED APPELLANTbelieved was necessary to prove the

INTENDED APPELLANTcause. The Court should consider the facts,evidence, argument and authorities before rendering a decision. Tonot allow theINTENDED APPELLANTto finish a though orstatement on the record is a violation of the most basic right to beheard. How can one be heard when they are being interrupted.

Bias Rule as Applicable

120. The Learned Trial Judge failed to comprehend the facts and

arguments as presented by the Appellant and instead pursued only the

assertions as presented by the Respondent, this subject predisposition of the

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

apprehension of bias is raised. The Appellant contends a reasonable

apprehension of bias by the fact that the learned Trial Judge only accepted and

or allowed argument and evidence which favored the Defendants position,

further the learned Trial Judge made questionable opening remarks during

preliminary to the effect that the Learned Trial judge had pre-determined the

outcome as a decision was promised at the end of the scheduled one hour

hearing; furthermore obviously erroneous statements are found within the

Learned Trial judge decision which reasonably must be based on incorrect


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information, contrary to the facts of the case. The Court did refuse to accept

corroborative Affidavit evidence filed by theIntended Appellantand instead

relied on Affidavit Evidence of theIntended Respondentwhich was not

diametrical to theINTENDED APPELLANTS cause, therefore

confirmed/admitted to theINTENDED APPELLANTS claims and behavior to

which theINTENDED APPELLANTwas seeking relief.

121. This second rule states that no one ought to be judge in his or her

case, this is the requirement that the deciding authority must be unbiased when

according the hearing or making the decision, additionally, decision-makers

must act without bias in all procedures connected with the making of a

decision. A decision-maker must be impartial and must make a decision based

on a balanced and considered assessment of the information and evidence

before him or her without favouring one party over another.

122. Even where no actual bias exists, decision-makers should be careful to

avoid the appearance of bias. When The Learned Trial Judge failed tounderstand the facts and arguments as presented by theINTENDED

APPELLANT, and instead pursued only the arguments and assertions as

presented by theINTENDED RESPONDENT, this predisposition of the

Learned Trial Judge toward a particular result (favoring theINTENDED

RESPONDENTs position or cause), is such that a reasonable apprehension of

bias is raised. TheINTENDED APPELLANTcontends that a reasonable

apprehension of bias arose by the fact that the learned Trial Judge only accepted

argument and evidence which favored the Defendants position, further the

learned Trial Judge made obviously erroneous statements within the decision


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which reasonably must be based on incorrect information, contrary to the facts

of the case.

123. In R. v. S. (R.D.), [1997] 3 S.C.R. 484, the header of the Courts

decision sums up the case before 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 of R. v. S. (R.D.),

[1997] 3 S.C.R. 484 is provided in the following:

(2)Reasonable Apprehension of Bias

PerLamer 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. Judges must beparticularly sensitive to the need not only to be fair but also to appear toall reasonable observers to be fair to all Canadians of every race,religion, nationality and ethnic origin.

If actual or apprehended bias arises from a judges wordsor conduct, then the judge has exceeded his or her jurisdiction. Thisexcess of jurisdiction can be remedied by an application to thepresiding judge for disqualification if the proceedings are stillunderway, or by appellate review of the judges decision. A reasonableapprehension of bias, if it arises, colours the entire trial proceedings andcannot be cured by the correctness of the subsequent decision. Themere fact that the judge appears to make proper findings of credibilityon certain issues or comes to the correct result cannot alleviate theeffects of a reasonable apprehension of bias arising from the judges

other words or conduct. However, if the judges words or conduct,viewed in context, do not give rise to a reasonable apprehension ofbias, the findings of the judge will not be tainted, no matter howtroubling the impugned words or actions may be.


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The apprehension of bias must be a reasonable one held byreasonable and right-minded persons, applying themselves to the

question and obtaining thereon the required information. The test iswhat would an informed person, viewing the matter realisticallyand 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 apprehensionof bias itself must also be reasonable in the circumstances of the case.Further the reasonable person must be an informed person, withknowledge of all the relevant circumstances, including the traditions ofintegrity and impartiality that form a part of the background andapprised also of the fact that impartiality is one of the duties the judgesswear to uphold. The reasonable person should also be taken to be

aware of the social reality that forms the background to a particularcase, such as societal awareness and acknowledgement of theprevalence of racism or gender bias in a particular community. Thejurisprudence indicates that a real likelihood or probability of bias mustbe demonstrated and that a mere suspicion is not enough. The existenceof a reasonable apprehension of bias depends entirely on the facts. Thethreshold for such a finding is high and the onus of demonstrating biaslies with the person who is alleging its existence. The test appliesequally to all judges, regardless of their background, gender, race,ethnic origin, or any other characteristic.

What the Judge actually intended by the impugnedstatements is irrelevant conjecture. Given the concern for both thefairness and the appearance of fairness of the trial, the absence ofevidence to support the judgment is an irreparable defect.

124. The Learned Trial Judge should be held to the highest standards of

impartiality. Fairness and impartiality must be both subjectively present and

objectively demonstrated to the informed and reasonable observer. The trial

will be rendered unfair, such as in this case, because the words and actions of

the Learned Trial Judge gave rise to a reasonable apprehension of bias to theinformed and reasonable observer. Judges must be particularly sensitive to the

need not only to be fair but also to appear to all reasonable observers to be fair,

in this case the Learned Trial Judge has failed. Because of actual or


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apprehended bias, which did arise from a judges words and or conduct, then

the judge has exceeded his or her jurisdiction.

125. BIAS is defined by Black's Law Dictionary (8th ed. 2004), at page 483 as follows:

bias,n. Inclination; prejudice; predilection

126. The basic interests of justice require that the appellate courts,

notwithstanding their deferential standard of review in examining factual

determinations made by lower courts, retain some scope to review that

determination given the serious and sensitive issues raised by an allegation of

bias. Impartiality can be described as a state of mind in which the adjudicator

is disinterested in the outcome and is open to persuasion by the evidence

and submissions. In contrast, bias denotes a state of mind that is in some way

predisposed to a particular result or that is closed with regard to particular

issues. Whether a decision-maker is impartial depends on whether the

impugned conduct gives rise to a reasonable apprehension of bias. Actual bias

need not be established because it is usually impossible to determine whether

the decision-maker approached the matter with a truly biased state of mind.

127. A fair trial is one that is based on the law, the outcome of which is

determined by the evidence, free of bias, real or apprehended. Did the

Motions judge here reach her decision on the evidence presented at the

hearing, considering all the relevant argument and presented authorities or did

she rely on something else? TheINTENDED APPELLANTasserts that the

Conduct of the Learned Trial, when considered in its entirety, did raise

reasonable apprehension of bias.


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128. The Learned Trial judge apparently had already decided to give a oral

decision that day, (bias - predisposition towards a particular outcome), without

having yet heard the parties. At 4:06:37 pm the JUDGE: stated as follows: All

right Mr. Murray you have until 4:30 you were given this time expedited

time ahhh on the basis of a half hour then I will need the next fifteen minutes

to give my decision which I will give today. Again at 4:07:37 PM COURT:

Just get on with itI dont need it I am going to give you my decision

today and again at 4:10:07 PM COURTinterrupting: I am not going to

read it after the fact I am giving you your decision today I dont need to.

These comments raising a reasonable apprehension of bias, and denotes a state

of mind that is in some way predisposed to a particular result or that is closed

with regard to particular issues, such as the Court had determined that a

Decision would be rendered that day, regardless of what was said and the

Court would not be persuaded otherwise.

129. We should consider whether the trial judge in her reasons, properly

instructed herself on the evidence or was an error of law committed by her.The second, and somewhat intertwined question, is whether her comments

below could cause a reasonable observer to apprehend bias. The offending

comments in the statement are:

130. The Learned Trial judge displayed reasonable apprehension of bias by

determining, without having read theINTENDED APPELLANTs Post Hearing

Brief, I dont need it I am going to give you my decision today

131. The Learned Trial judge displayed reasonable apprehension of bias by

not allowingINTENDED APPELLANTto rebut statement made by the


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Defendant 4:46:57 PM COURT as Trina has finished: With respect to your

MOTION here today for costs 4:47:00 PLAINTIFF: May I rebut 4:47:01

PM COURT: No I gave you my ruling. Stop it! Im going to give you the rest

of the ruling. 4:47:05 PLAINTIFF: Usually the procedure though allows for

a rebuttal 4:47:07 PM COURT interrupting yelling: No there is

no rebuttal! I gave you I gaet . SIT.. SIT DOWN.. SIT DOWN speaking

to the Sheriff: will you go over and sit beside him please

132. In addition to not being based on the evidence, the trial judges

comments are being challenged as giving rise to a reasonable apprehension of

bias: 4:47:40 PM COURT: There is absolutely nothing in your affidavits or in

your requests in your MOTION that would allow me to Order costs against

Mrs Rodgers. The material you filed the Affidavits for the most part are

rambling, their incoherent, their frivolous, they are indecipherable and they

dont amount to anything in the end. 4:48:04 PM COURT: I have no

Jurisdiction on the basis of the kind of information that you have filed to give

costs against Mrs Rodgers I have no Jurisdiction to Order Substituted Serviceas Mrs Rodgers indicated she wouldnt be hear today if she hadnt been

served. 4:48:23 PM COURT: And I wouldnt open the door for people I

dont know either. 4:48:27 PM COURT: I dont have to accept your

anecdotal evidence that you went to the Post Office and someone told you that

they wouldnt accept service. Thats hearsay I dont accept it and it is not

reliable. 4:48:54 PM COURT: In fact almost everything you have in your

Affidavits and those of your two so called Process Servers is suspect I

dont accept it. 4:49:06 PM COURT: Its anecdotal and its frivolous and

its meaningless and for those reasons I dismiss your motion for costs I

dismiss your Motion for a Order of Substituted Service and I Order you


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to pay $500 costs forthwith to Mrs Rodgers. Thank you very much. The

Learned Trial judge dismissed three corroborative affidavits, further

corroborated byINTENDED RESPONDENTs own Affidavit testimony,

claiming the Affidavit material was frivolous and its meaningless.

133. Black's Law Dictionary (8th ed. 2004), Page 1969 defines frivolous as

follows:

FRIVOLOUSfrivolous, adj. Lacking a legal basis or legal merit; not serious; notreasonably purposeful

134. Meaningless is defined by Webster dictionary as:

having no meaning; especially: lacking any significance

135. Anecdotal is defined by Webster dictionary as:

based on or consisting of reports or observations of usually unscientificobservers

136. The fact that the Learned Trial judge dismissed three corroborative

affidavits, of which testimony included, Affiants witnessing each other,

doing acts which substantiated the efforts to which the INTENDED

APPLICANT had gone, in attempting to serve theINTENDED RESPONDENT

(the reason for the subject motion) and further that Affidavit testimony was

corroborated byINTENDED RESPONDENTs own Affidavit testimony, after

all this the Learned Trial Judge was claiming the Affidavit material was

frivolous and its meaningless. Or put another way, how could corroborative

Affidavit material have no meaning, be lacking a legal basis and or not be

reasonably purposeful, when those very same affidavit were filed to support a

motion because of exactly the type of behaviour described in those same


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affidavits, this is seriously questionable and lends itself to reasonable

apprehension of bias.

137. Affidavit testimony in general is considered anecdotal or based on

casual observations or indications rather than rigorous or scientific analysis,

remember an affidavit is a statement of fact sworn under oath, a first person

account of the affiants interpretation of an event. To dismiss corroborative

Affidavit testimony, based of a generality which permeates all Affidavit

material is seriously questionable and lends itself to reasonable apprehension

of bias

138. Reasonable apprehension of bias, that which has arisen in this matter,

colours the entire trial proceedings and cannot be cured by the correctness of

the subsequent decision, in this case the decision was inherently flawed. The

mere fact that the judge appears to make proper findings of credibility on

certain issues or comes to the correct result cannot alleviate the effects of a

reasonable apprehension of bias arising from the judges other words orconduct.

139. Reasonable apprehension of bias of the Trial Judge may be summed

up as this; The Learned Trial Judge seemed to be determined or predisposed to

a particular result, which was to:

a. without reason, render a decision on the day of the hearing, despite

being requested to accept a Post Hearing Brief, which was part of the

INTENDED APPLICANT prepared presentation for consideration,

violating the INTENDED APPLICANTs right to be heard.


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b. favor theINTENDED RESPONDENTS position, despite lack of

evidence, argument and legal reasoning for same. The Court even

commented, that she (the Court) would not open the door to strangers

either, despite that fact that theINTENDED RESPONDENTin fact knew

that the INTENDED APPLICANT was at the door attempting to

deliver court documents (admitted by Affidavit).

c. favor theINTENDED RESPONDENTS position, The Court

unreasonable dismissed the INTENDED APPLICANTs uncontested

corroborative affidavit material, which was again corroborated by the

INTENDED RESPONDENTs own Affidavit evidence. TheINTENDED

RESPONDENTactually admitted by affidavit that she purposefully

did not pick up registered mail sent by the INTENDED APPLICANT

and further she had called the Police when the INTENDED

APPLICANT attempted to simply serve Court documents upon her.

140.

Further conduct which demonstrates Reasonable apprehension of bias:d. The Learned Trial Judge refused actual uncontested sworn testimony

by affidavit and exhibits, with no reasonable grounds given and no

disagreement of their content;

e. The Learned Trial Judge claimed INTENDED APPLELLANT

submissions as difficult to read or understand without asking INTENDED

APPLELLANT to explain or clarify anything, and in spite of INTENDED

APPLELLANT comprehensive and easily understandable oral argument.

The Learned Trial Judge claim of lack of understanding and comments

regarding same were unreasonable;


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f. The Learned Trial Judge called INTENDED APPLELLANT

uncontested on point evidence anecdotal and in doing so she was

dismissing INTENDED APPLELLANT corroborative affidavits, yet she

acceptedINTENDED RESPONDENTs totally anecdotal and

unsubstantiated claims, which were for the most part irrelevant to the

matter before the Court, being a Motion for Orders of Substituted Service

and cost for aberrant conduct and behavior which was endangering the

INTENDED APPLELLANT health and well being;

g. The Learned Trial Judge clearly stated to the INTENDED

APPLELLANT, that the Court had no jurisdiction to award INTENDED

APPLELLANT costs and then promptly contradicted herself by awarding

costs against INTENDED APPLELLANT (INTENDED RESPONDENT

did not even ask for costs), this is contradictory and hypocritical

demonstrating reasonable apprehension of bias and contemptuous conduct

towardsINTENDED APPELLANT;

h. The Learned Trial Judge toldINTENDED APPELLANTthere were

no grounds for substituted service, when in fact there was, further thiswould have been a very simple resolution, the Court could have asked

INTENDED RESPONDENTfor an undertaking to simply accept registered

mail, instead the Court instructedINTENDED APPELLANTto hire a

professional process server, where there is no provision necessitating this

in the Rules of Court or necessity for it, if the INTENDED RESPONDENT

would simply accept Service (even through a closed locked door) or agreed

to the suggested reasonable substituted Service method forward for

consideration.

i. The Learned Trial Judge refused to allowINTENDED APPELLANT

to rebut statements made at the hearing byINTENDED RESPONDENT,


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refusal to allow a rebuttal was blatantly wrong, a violation of the

INTENDED APPELLANTs right to be heard and there is no excuse for this

whatsoever.

Error in Law141. TheIntended Appellantasserts that the trial judge made a number of

material errors in law while arriving at Decision. The learned Trial Judge erred

in law, in irregularly applying the Courts Discretion. MoreoverIntended

Appellantcontends, that The Learned Trial judge did display abuse of

discretion, which is an adjudicator's failure to exercise sound, reasonable, legaldecision-making. Learned Trial Judge instead rendered a decision which is

unsupported by the evidence and clearly based on erroneous findings of

material fact.

142. Learned trial judge erred in law in not keeping with the general

direction 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.

143. Learned Trial Judge did error in law in misapplication of the Rules of

Court, to prejudicially Bar theIntended Appellantfrom submitting a Brief for

the Courts Consideration, which provided the Case law Authorities and

complete Argument, buttressing theIntended Appellantclaims for relief, which

is am error in law.

144. Black's Law Dictionary (8th ed. 2004) defines Abuse of Discretion as

follows:


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abuse of discretion.

1. An adjudicator's failure to exercise sound, reasonable, and legaldecision-making.

2. An appellate court's standard for reviewing a decision that is assertedto be grossly unsound, unreasonable, illegal, or unsupported by theevidence.

145. The learned Trial Judge erred in law, in irregularly applying the

Courts Discretion. TheINTENDED APPELLANTcontends, The Learned Trial

judge did display Abuse of Discretion. The Learned Trial Judge instead

rendered a decision which is unsupported by the evidence and clearly on a

erroneous finding of a material fact.

146. In Matondo v. Canada (Minister of Citizenship and Immigration),

2005 FC 416 (CanLII) HARRINGTON J. stated at paragraph 1 as follows:

[1] To be "capricious" is to be so irregular as to appear to be

ungoverned by law

147. The Appellant contends the Learned Trial Judges decision lacked the

degree of justification, transparency and intelligibility required by the

unreasonableness standard of review and considered a unreasonable decision.

148. Reference: In Canada Revenue Agency v. Telfer, 2009 FCA 23

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

review, from Paragraph 29 through to 42.

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

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


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of discretion being unreasonable from Paragraph 57 through to and including

paragraph 68:

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

Questions of law

150. In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235,

in the header of the decision, the Supreme Court did provide a succinct view

on the Courts standard of review. An appeal is not a re-trial of a case,

consideration must be given to the standard of review applicable to questions

that arise on appeal. The standard of review on pure questions of law is one of

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. Action taken under statutory authority is

valid only if it is within the scope of that authority, if it was not, the Court did

commit reversible error.

151. The Learned Trial Judge refused to apply the Rules of Court and the

Courts discretion to grant remedy to theINTENDED APPELLANT. The Court

actually claimed not to have the jurisdiction to Order cost against the egregious

conduct of theINTENDED RESPONDENT, further the Court claimed to nothave the Jurisdiction to Order Substituted Service upon theINTENDED

RESPONDENT(which is clearly not the case), the Court dismissed the

INTENDED APPELLANTs corroborative uncontested Affidavit evidence,


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refused to accept an essential Post Hearing Brief but paradoxically, the Court

used the Court discretion to Order cost against theINTENDED APPELLANT, for

filing the subject Motion, despite theINTENDED RESPONDENTnot filing any

brief (no work equals no costs), and filing unnecessary affidavit material (which

the Court scolded theINTENDED APPELLANTfor having to read).

152. Manifest Abuse of Discretion was demonstrated when the Court

asserted a Discretionary Decision unsupported by the evidence choosing

instead to arrive at erroneous finding of a material facts, theINTENDED

APPELLANTclaims that the Learned Trail Judge has demonstrated Manifest

Abuse of Discretion. In these circumstances, as expressed in this Brief, it

would be a disservice to the administration of justice to allow this decision to

stand.

153. The Leaned Trail Judge did demonstrate Omissions in reason for

judgment, as expressed throughout this submission, which amount to material

error because they give rise to the reasoned belief that the trial judge must haveforgotten, ignored or misconstrued the evidence in a way that affects the

Courts conclusions, such as in this case.

Findings of Fact

154. In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235,

in the header of the decision, the Supreme Court did provide a succinct view

on the Courts standard of review. The standard of review for findings of fact is

such that they cannot be reversed unless the trial judge has made a palpable

and overriding error. A palpable error is one that is plainly seen. The

standard of review for inferences of fact is not to verify that the inference can


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reasonably be supported by the findings of fact of the trial judge, but whether

the trial judge made a palpable and overriding error in coming to a factual

conclusion based on accepted facts, a stricter standard. Making a factual

conclusion of any kind is inextricably linked with assigning weight to

evidence, and thus attracts a deferential standard of review. If there is no

palpable and overriding error with respect to the underlying facts that the trial

judge relies on to draw the inference, then it is only where the

inference-drawing process itself is palpably in error that an appellate court can

interfere with the factual conclusion.

155. The factual findings made by the Learned Trial Judge should not be

accepted, becauseIntended Appellanthas demonstrated throughout this Brief,

that they are unreasonable, based on a material misapprehension of the

evidence, and or tainted by a failure to consider material, relevant evidence.

The effect is significantly unjustified prejudice and or injustice toINTENDED

APPELLANT. The Court did make palpable and overriding errors throughout

the impugned decision.

156. Learned Trial Judge, subjectively, therefore demonstrated that

Learned Trial Judge did not appreciate the argument advanced byINTENDED

APPELLANT, consequently failed or refused to understand the legal principles

relied on, in support of theINTENDED APPELLANTs argument, further, the

Lear

may 3, 2012, brief on motion for leave to appeal to court of appeal of new brunswick, file number...

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