Court of Appeal File Number: 105 11 - CA (Court File Number: F/C/104/09)

IN THE COURT OF APPEAL OF NEW BRUNSWICK BETWEEN: ANDRE MURRAY APPELLANT (Plaintiff ) -andBETTY ROSE DANIELSKI

RESPONDENT (Defendant)

Appellants Submission Filed by self represented

APPELLANT ANDRE MURRAY

Andr Murray APPELLANT (Plaintiff) 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Telephone Number: E-mail address: andremurraynow@ gmail.com

Solicitor for RESPONDENT (Defendant) Betty Rose Danielski E. Thomas Christie, CHRISTIE LAW OFFICE Suite 306, 212 Queen Street Fredericton, New Brunswick Canada E3B 1A8 Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

Betty Rose Danielski RESPONDENT (Defendant)

Appellants Submission (Rule 62.14) INDEX of the contents Page

a) Part I - An index of the contents; _______________________________ b) Part II -A concise statement of all relevant facts with such references to the evidence as may be necessary;___________________ c) Part III - A concise statement setting out clearly and particularly in what respect the order or decision appealed from is alleged to be wrong;_____________________________________________________ d) Part IV - A concise statement of the argument, law, and authorities relied upon;_________________________________________________

8 8 8 9 10 10 11 10 11 13 15 17 18 19

1) Hearing February 14, 2011. ________________________________ 2) Hearing Rule ___________________________________________ 3) Bias Rule ______________________________________________ 4) Written Decision June 24, 2011 ____________________________ 5) Evidence on Motions_____________________________________ 7) Written Decision June 24, 2011 __________________________ 8) Evidence on Motions___________________________________ 9) Discretion___________________________________________ 10) Rule 1.03 (2) _________________________________________ 11) Material misapprehension of the evidence_________________ 12) Setting the matter down for Trial_________________________ 13) Moving the matter along________________________________ 14) Reason for the Delay___________________________________

15) Prejudice ____________________________________________ 16) Ownership of Property_________________________________ 17) Mechanics Lien Documents _____________________________ 18) Recovery of Documents ________________________________ 19) Reasonable Apprehension of Bias ________________________ 20) Costs _______________________________________________ 21) Regarding Order Sought________________________________

20 22 23

26 27 30 34

e) Part V - A concise statement of the order sought from the Court of Appeal, including any special disposition with regard to costs;_________ f) Schedule A - A list of authorities in the order referred to in the Submission; and_____________________________________________ g) Schedule B - The text of all relevant provisions of Statutes or Regulations (or copies of the complete Statute or Regulation may be filed and served with the Submission).____________________________

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Part II A concise statement of all relevant facts with such references to the evidence as may be necessary; Relevant Time Line 1. April 16, 2009 Registration of Mechanics Lien, a Claim for Lien. 2. April 21, 2009 Court File Date Stamped Notice of Action (Form 16 B). 3. May 20, 2009 Court File Date Stamped Statement of Claim (Form16 C). 4. August 21, 2009 Date Amended Statement of Claim (Form 16 C). 5. October 19, 2009 Service of Court Documents on Defendant Occurred. 6. October 20, 2009 Ex parte, Hearing and Eviction without Notice. 7. October 23, 2009 enforcement of Eviction Order 29 Marshall Street effecting Plaintiff forthwith who must vacate without any property. 8. October 2009 Plaintiff mistakenly filed LEAVE to APPEAL 9. November 2009 Plaintiff mistakenly attends LEAVE to APPEAL 10. December 14, 2009 Moncton Hearing Requesting Rescinding of Orders 11. January 18, 2010, 2nd Moncton Hearing for access contractual papers. 12. March 22, 2010 3rd Moncton, Hearing for access contractual papers. 13. April 20, 2010 Service Notice of Motion for Action Continuance. 14. May 31, 2010 Service of 1st request for Consent to Continuance. 15. May 31st, 2010. Service of Amended Notice of Motion for Continuance 16. June 10, 2010 1st Hearing for Continuance of Mechanics Lien Action. 17. November 29, 2010 4th Moncton, Hearing to retrieve documents. 18. February 14, 2011 2nd Hearing Continuance of Mechanics Lien Action. 19. March 23, 2011 5th Moncton Hearing to retrieve documents Part III A concise statement setting out clearly and particularly in what respect the order or decision appealed from is alleged to be wrong; 1. Within decision area paragraph 9 the learned Trial Judge demonstrates

Reasonable Apprehension of Bias in erroneously alluding to delay when in fact there has not been a delay, as well Bias is realized to the matter of Trial Judge: prejudice to the Defendant evidence has not been provided.

2.

Within decision area paragraphs 10 and 11 nothing significant or

relevant is addressed in pursuance with section 52.1(1)(b) of the Act., that the action be continued.

3.

Within decision area paragraph 12 Learned Trial Judge continues to

error in law grossly misapprehending the facts therefore and thereby adducing irrelevant material not before the Honorable Court (demonstrable bias) and erroneously alluding as relevant material under section 52.1(1)(b) of the Act.

4.

Within decision area paragraph 13 Learned Trial Judge continues to

error in law grossly misapprehending She no longer owns this property inter alia, facts not found before the Honorable Court, further resorts to inference from defective or presumptive evidence to satisfy what must be a demonstrably realized as Reasonable Apprehension of Bias.

5.

Within decision area paragraph 14 Learned Trial Judge continues to

demonstrate Reasonable Apprehension of Bias supported by the Trial Judge misapprehension in interpretation of the Act therefore obsessing with this reoccurring Biased concept, held by the Learned Trial Judge of: delay.

6.

Within decision area paragraph 15 Learned Trial Judge determines

prejudice to the Defendant without fact; further erroneously contends She does not own the property and has not since July 16, 2009; furthermore, despite voluminous submissions demonstrating and affidavits confirming otherwise, Learned Trial Judge contends nothing has happened inter alia. 7.

Within decision area paragraph 16 Learned Trial Judge, finally

conclusively demonstrates a Bias therefore, relying upon Given all of the above which could not reasonably be relevant in pursuance with the motion under s. 52.1(1)(b) of the Act as requested by the Plaintiff; furthermore, the Costs awarded apparently relative to the Defendant in these circumstances

must reasonable be unjust, as are in these circumstances irrelevant to the the motion under s. 52.1(1)(b) of the Act before the Honorable Court.

8.

The learned Trial Judge erred in law, by erroneously adjudicating a non

existent dispute and or conflict

9.

Learned Judge erred by abuse of discretion of the Honorable Court

thereby unilaterally creating a Jurisdiction not therefore a MOTION filed moreover outside of the Legislation which is MECHANICS LIEN ACT, therefore the discretion has been exercised on a wrong principle, an appellate tribunal may reverse it on that ground. The learned Trial Judge erred in law by incorrect administration of

10.

justice thereby monotonously pursuing that which did not exist relative to the Motion for Order of Continuance.

11.

Conundrum followed by emendation to this detrimental effect, the

learned trial judge continually interrupted the Plaintiff throughout the oral submission, The Honorable Court further instructed the Plaintiff to proceed with a oral submission satisfying only to The Honorable Court, and consequentially not oral submission as originally planned by Plaintiff. The Honorable Court having now suppressed the Plaintiff, furthermore the Court continued (without argument from the Defendant) to express disbelief of the Plaintiffs essential position, therefore and thereby causing an unfair hearing of the Matter; the Plaintiff was not permitted to be heard according to the Plaintiffs own conscience; the Honorable Court set the pace determining what shall be relevant before the Court (if it pleases the COURT OF APPEAL:

please see Official Transcript page 3 line 2 line 5 provided for your convenience - an exact excerpt follows below:) So its your responsibility to convince me as to why there was nothing set down for trial within the year period, which is what is set out in the Mechanics Lien Act. So if you would confine your arguments for this purpose (as expressed by the learned Trial Judge :quoted excerpt provided above) instructed/required the Plaintiff to speak of nothing more than an accounting of the previous year, thereby explaining/justifying why (as the Learned Judge continued accuse the Plaintiff directly and or by allusion) the Plaintiff had done nothing to set down for trial within the year period,. this begs the question as to why the Learned Judge would believe that the two parties to the MECHANICS LIEN ACT and potential COURT ACTION would not first seek REMEDY at DISCOVERY; consequentially, and for that reason Parties would not require set down for trial within the year period. On this matter of Court imposed criteria, the Learned Trial Judge erred by "picks up the mantle" thereby not allowing the Plaintiff to be heard according to his own conscience. Regarding costs costs of $1500 to the Defendant in these

12.

circumstances these cited circumstances do not apply to the MOTION FOR ORDERS FOR CONTINUANCE OF the ACTION.

13.

May this Please the HONORABLE COURT OF APPEAL, Plaintiff

Andre Murray a self represented litigant appeared before a hearing February 14, 2011, where Learned Trial Judge refused to adjudicate, (hear and settle) the matter as a CONTINUANCE instead of Honorable Court granting, what ought to have been a simple matter, consuming no more than, reasonably, 15 to 30 minute of COURT time, reasonably assisting in coordinating Plaintiff

and Defendants schedules that DISCOVERY may occur within the anticipated time of Continuance time allocation the Learned Trial Judge instead of dealing with the matter before the COURT did instead paradoxically pursue inexplicable and or contradictory aspects of the file, that may nonetheless have been true had the MOTION before the COURT not been only to grant a CONTINUANCE of the ACTION, nevertheless, this aforementioned departure by the Honorable Court is not jurisprudence therefore, not consonant with the MOTION before the Court.

14.

Instead of simply assisting the Plaintiff and Defendants to coordinate

their schedules that they may determine how much time is required, further, that both sides may attend DISCOVERY, thereby sincerely pursue and likely find compromise, the Learned Judge instead, erroneously pursued erroneous beliefs concerned with imaginary statutory limitations instead of simply granting the CONTINUANCE.

15.

Learned Trial Judge while hearing the within subject matter did error

further demonstrating a palatable misapprehension of the jurisprudence relative to the Section 52.1(2) Continuance of said Mechanics Lien Act/Action Law in pursuance with the Mechanics Lien Act as this was the only cause before the honorable Court. Despite well established Law the Learned Trial judge demonstrated a Apprehension of Bias which redirected the Cause away from SUBSTANTIVE into the SUBJECTIVE interests which possessed the Learned Trial Judges mind an therefore interest throughout the entire Hearing of the MOTION for ORDERS of CONTINUANCE of The ACTION which ought to have been in pursuance with the Relative Acts instead the entire hearing was verbally dominated by the Learned Judge consumed by irrelevant Matters

more conducive to a laboriously drawn out drama rather than simply acknowledging a Request for a CONTINUANCE pursuant to Section 52.1(2) as the Plaintiff and Defendant where forced to examine and articulate in their words, what, to date, had been the REASON as to why this Matter had not been set down for Trial.

16.

Please consider that Parties sincerely pursuing Remedy should not and

need not be setting ACTIONS down for TRIAL except only after all negotiations in pursuit of remedy, have been exhausted, furthermore this reasonably was not the intention of the LEGISLATORS (to go to Trial) when issuing relevant Laws governing matters such as a request for a CONTINUANCE pursuant to Section 52.1(2) moreover, it is unreasonable that law intends a harm or a wrong, therefore the evident misapprehension as the Learned trial Judge verbalized, what must, therefore consequentially be considered misapprehension of the intentions of the Law and the subsequent palatable APPREHENSION OF BIAS by Learned trial Judge were consonant with this persistent erroneous position. That all must enter into such conflict that the only REMEDY therefore would be COURT ACTION. As in this matter the parties have not yet been able to DISCOVER each other.

17.

The DEFENDANT/RESPONDENT in this matter as early as year 2005

was aware of documentation being in existence therefore indispensable and evidentiary documents relative to the subject MECHANIC LIEN as being located at the building 29 Marshall Street.

18.

Defendant took measures therefore to deprive the Plaintiff of these as

above stated indispensable and evidentiary documents relative to the subject MECHANIC LIEN and evidentially has succeeded by collaborating with a Financial Investment Institution ROYAL BANK OF CANADA alleging to be MORTGAGEE of a REGISTERED MORTGAGE against subject property; who without NOTICE obtained a ex parte ORDER to EVICT the plaintiff APPELANT in this Matter Andre Murray from a legal and lawful residential leasehold of 29 Marshall Street, city of Fredericton. Above mentioned ORDERS to evict where enforced in a forthwith manner thereby denying the Plaintiff opportunity to leave with any personal possessions.

19.

Interestingly the herewithin above stated eviction of Andre Murray

from his residential leasehold of 29 Marshall Street, City of Fredericton occurred within six months of having registered subject Mechanics Lien and only three days after having finally served the Mechanic Lien and NOTICE OF ACTION upon the Defendant Betty Rose Danielski who had until that date successfully avoided Serve of said COURT documents of NOTICE inter alia.

20.

As colorful as the learned Madame Justice may understandably

perceive this matter to be, as the Plaintiff in that matter likely expressed by submission before the Honorable Court, the Learned Trail Judge should recognized the relevance and or lack thereof (in this case) of these superfluous details, as found within the submissions offered to the Honorable Court by a Self represented Litigant (who is sincerely, by attempting to put his best foot forward appears to have offered more material than necessary).

21.

The learned Judge in hearing the matter of the MOTION FOR A

CONTINUANCE erred in Law in not comprehending that the only jurisdiction reasonably granted the HONORABLE COURT was that of administrative nature, therefore keeping the matter of the MECHANIC LIEN ACT and or ACTION alive and ensuring that should each side not resolve differences satisfactorily inter alia., ; alternatively the last resort of seeking REMEDY before the HONORABLE COURTS would remain available. Part IV A concise statement of the argument, law, and authorities relied upon; Hearing February 14, 2011. Hearing Rule The learned trial judge erred in law in not recognizing the principal of

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law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side'). In this matter the learned trial judge, interrupted Plaintiff having shortly started his oral submission, The Honorable Court further Ordered the Plaintiff to proceed with a oral submission to pleasure of The Honorable Court, consisting only of specific evidence, and not within the Plaintiffs conscience .

23.

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

24.

The learned trial judge erred in law in failing to consider material,

relevant evidence and argument as presented by the Appellant, at the February 14, 2011 Hearing, no person should be condemned, punished or have any property or legal right compromised by a court of law without having heard that person, in this case the Appellant.

25.

Bias Rule The maxim nemo judex in causa sua debet esse - no person can judge a

case in which he or she is party or in which he/she has an interest - underlies the doctrine of reasonable apprehension of bias. The Learned Trial Judge failed to understand the facts and arguments as presented by the Appellant and instead pursued only the arguments and assertions as presented by the Respondent, this predisposition of the Learned Trial Judge toward a particular result, is such that a reasonable apprehension of bias is raised. Reference: R. v. R.D.S., 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484 Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ for an elaboration of this principle at paras. 109 -120, inclusive

26.

The following is found at duhaime.org at the following address: Nemo Judex In Parte Sua - Latin: no person can Judge a case in which he or she is party or in which he/she has an interest. In Canada, the Supreme Court had occasion to reflect on the maxim in Brosseau v Alberta Securities Commission [1989] 1 SCR 301, Justice l'Heureux-Dub: "The maxim nemo judex in causa sua debet esse underlies the doctrine of reasonable apprehension of bias.. "As a general principle, this is not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner."

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

27.

With respect to reasonable apprehension of bias, the Appellant relies on

statements by Learned Trial Judge at the February 14, 2011 Hearing and also the Decision as rendered June 24, 2011. Appellant alleges these references demonstrate Learned Trial Judge advocated a particular view concerning the purposes of the Mechanic Lien Act, R.S.N.B. 1973, c. M-6, and its

application, thereby demonstrated a predisposition toward a particular result such that a reasonable Apprehension of Bias is raised.

28.

The duty to act fairly includes the duty to provide procedural fairness to

the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made a decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness, the conduct of the Court, has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. There must be circumstances from which a reasonable man would think it likely or probable that the Learned Trial Judge, would favor one side unfairly.

29.

Written Decision June 24, 2011. The Appellant asserts that the trial judge made a number of material

errors in law while arriving at Decisions in respect of in the first place Should the Court exercise its discretion and order a continuance under the Mechanic Lien Act, R.S.N.B. 1973, c. M-6 (Act) for Murray? and in respect of the Courts exercise of discretion regarding costs.

Evidence on Motions 30. The Court should only have considered the Affidavit evidence presented by the Appellant; Affidavit evidence which was claimed to be provided by the (Defendant) Respondent was never served upon the (Plaintiff) Appellant according to the rules of Court, the Court should not accept same

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(Reference: The Plaintiffs Submission 2, paragraph 150, supported by the Evidence in Record) . Please consider the following Rules of Court, Rule 39.01 Evidence on Motions and Rule 39.04 Service of Affidavits Rule 39.01 EVIDENCE ON MOTIONS AND APPLICATIONS 39.01 By Affidavit (1) On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order. Rule 39.04 EVIDENCE ON MOTIONS AND APPLICATIONS 39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing. 31. Black's Law Dictionary (8th ed. 2004) , Page 4288 defines the word SHALL shall, vb. 1. Has a duty to; more broadly, is required to <the requester shall send notice> <notice shall be sent>. This is the mandatory sense that drafters typically intend and that courts typically uphold. 32. Rules of court Rule 39.04 is clear, any person who intends to give

SHALL as follows:

affidavit evidence at the hearing shall (is required to) serve a copy of such affidavit a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing, since the Respondents, did not, then they should not benefit from the same affidavit..

Discretion

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33.

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

follows: 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 be grossly unsound, unreasonable, illegal, or unsupported by the evidence. 34. The learned Trial Judge erred in law, in irregularly applying the Courts

Discretion. The Appellant contends, The Learned Trial judge did display Abuse of Discretion. The Learned Trial Judge instead rendered a decision which is unsupported by the evidence and clearly on a erroneous finding of a material fact. A court must avoid to substitute its view on issues of propriety of purpose and the relevance of the factors considered.

35.

The Appellant contends the Learned Trial Judges decision lacked the

degree of justification, transparency and intelligibility required by the unreasonableness standard of review and considered a unreasonable decision. Reference: In Canada Revenue Agency v. Telfer, 2009 FCA 23 (CanLII), Justice EVANS J.A, reviewed the unreasonableness standard of review, from Paragraph 29 through to 42. Reference: In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 Justice Iacobucci J., stated regarding exercise of discretion being unreasonable from Paragraph 57 through to and including paragraph 68: An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or

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in the logical process by which conclusions are sought to be drawn from it. Rule 1.03 (2) 36. 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) to secure the just, least expensive and most expeditious determination of every proceeding on its merits, by not allowing the Continuance, based on the facts of the subject case. Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) (per Justice H. H. McLellan) stated his view regarding the discretion of the Trial Judge and also his view that the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits. Please see: Discretion of Trial Judge page 6 9 37. Refusal by the Learned Trial Judge to grant the requested Continuance

resulted from the application of a wrong principles of law. Refusal to grant the requested Continuance did not result in securing the just, least expensive and most expeditious determination of the proceedings on the merits as envisioned by Rule 1.03(2). Reference: Michaud v. Robertson, 1992 CanLII 4709 (NB CA) Stratton, C.J.N.B., regarding application of Rule 1.03(2) 38. Black's Law Dictionary (8th ed. 2004), defines Justice as follows: JUSTICE - justice. 1. The fair and proper administration of laws. 39. The fair and proper administration of Justice in Law requires of the

Court of Queens Bench Trial Division to apply the Rules of Court, for a determination of every proceeding on its merits. A determination should be in keeping with the general direction contained in Rule 1.03(2) of the New Brunswick Rules of Court, which is reproduced as follows:

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CITATION, APPLICATION AND INTERPRETATION: 1.03 Interpretation 1.03 (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 40. 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), in not granting the Continuance, as requested. Furthermore, on the merits is defined by legal-dictionary.com at the following internet web address: (http://legal-dictionary.thefreedictionary.com/on+the+merits) on the merits: on the merits adj. referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A Judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome. Example: An attorney is two days late in filing a set of legal points and authorities in opposition to a motion to dismiss. Rather than dismiss the case based on this technical procedural deficiency, the Judge considers the case "on the merits" as if this mistake had not occurred. 41. The trial judge erred in law in not ordering a Continuance based on the

fact a Continuance was requested. The duty of the Court in this case was to ensure, that justice is done, it is most unfair to deprive the Appellant of the opportunity to have the matter heard on the merits.

42.

The Appellant could not schedule a meaningful Discovery pursuant to

the Mechanics Lien Act nor reasonably set the matter down for Trial, without first regaining possession of relevant evidentiary inter alia Contractual documents. Appellant by Filed Submission argued that to do justice in this

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particular case requires a balancing of the prejudice to both parties tentatively resulting from the Courts decision to grant or refuse the Appellants Application. The Court failed to balance the prejudice to both parties.

43.

The Appellant contends that as a general principle, the Rules of Court

should not be used to prevent the delivery of rights; nor should they be used to preclude the enforcement of claims derived from substantive law. Moreover, a Court should interpret and apply the Rules of Court to ensure, to the greatest extent possible, that there is a final determination, unless the application of the rules would result in a serious prejudice or injustice. In this case, granting the continuance would have preserved the Status quo, maintained each Partys standing at the time, to the prejudice of neither Party and would have allowed the parties an opportunity to resolve the matter fairly. Material misapprehension of the evidence 44. Factual findings made by the Learned Trial Judge, should not be

entirely accepted, Appellant will demonstrate unreasonable findings, numerous incidents of material misapprehension, tainted by a failure to consider relevant evidentiary material, The misapprehension of the evidence must go to the substance rather than to the detail. It must be Material rather than peripheral, and the errors thus identified must play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a Decision. If an Appellant can demonstrate that any Decision is based on Misapprehension of Evidence it must follow that the Appellant has not received a fair trial, and was the victim of a miscarriage of justice.

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45.

Erroneous findings and subsequent rulings made by the Learned Trial

Judge which demonstrated Material Misapprehension of the evidence: 46. Setting the matter down for Trial Moving the matter along Reason for the Delay Prejudice Ownership of Property Mechanics Lien Documents Recovery of Documents

Example 1 - Page 2, Paragraph [1]

On June 8, 2010 Murray filed a motion .. Fact: April 20, 2010, Appellant filed a Motion requesting that under section 52.(1)(b) of the Mechanics Lien Act R.S.N.B. 1973, c.M-6 be continued. 47. Example 2 - Sentience 2 Page 5, Paragraph [11]:

He filed his lien April 21, 2009. Fact: The Appellant did file the Claim for Lien April 16, 2009. 48. Example 3 - Sentence 4 Page 6, Paragraph [12]:

filed the lien on April 21, 2009 he has not proceeded . Fact: The Appellant did file a Mechanics Lien on April 16, 2009. 49. Example 4 - Sentence 5 Page 6, Paragraph [12]:

He has failed to respond to a demand for particulars. The above quote is false, Appellant did appropriately respond to a demand for particulars, according to rules of Court filed in relation to that, within the Court Record the following: AFFIDAVIT OF SERVICE (FORM 18B), Court File Date Stamped

February 08, 2011, Service of STATEMENT OF PARTICULARS (FORM 27M) Dated the 10th day of June, 2010.

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

as Exhibit R a Copy of STATEMENT OF PARTICULARS (FORM 27M) Dated the 10th day of June, 2010. In the Plaintiffs Submission #2 at paragraph 21, the Plaintiff did state On

the 10th day of June, 2010, . I Plaintiff Andr Murray filed a STATEMENT OF PARTICULARS (FORM 27M) . In the Plaintiffs Submission #2 at paragraph 22, the Plaintiff did state

Plaintiff Andr Murray did serve, STATEMENT OF PARTICULARS (FORM 27M) Dated the 10th day of June, 2010.

50.

Example 5 - Sentence 2 Page 6, Paragraph [13]:

She no longer owns this property. Fact: Court was provided with a Copy of Affidavit 2 of Andre Murray Dated May 31st, 2010 attachments Exhibit D- Service New Brunswick Print out of Parcel Information / Property Information report, Dated January 8, 2009 and Exhibit E- a Deed Dated Oct. 24, 2000, indicate Respondent as the Owner. Setting the matter down for Trial Page 2, Paragraph [2] Murray did not set the action down for trial within one year as required by s. 52.1 of the Act.. The Mechanics Lien Act R.S.N.B. 1973, c.M-6 does not require the Action be set down for trial within one year, as erroneously stated by the Learned Trial Judge, merely that one of the two conditions, either subsection a) or subsection b) of Section 52.1 of the Mechanics Lien Act, be complied with so that the Mechanics Lien shall not be deemed to be discontinued. The act of Application to the Court for a Continuance, expresses the Appellants desire to resolve the matter on its merits and therefore the Court should, absent some

51.

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compelling reason, grant the requested Continuance, therefore to see that justice is, done between the Parties. Neither the Rules of Court nor the Mechanics Lien Act, state criteria for the Court to consider in granting a Continuance, nor conditions which must be met; application is sufficient when made and Served on the Respondent. Moving the matter along Sentence 4, Page 6, Paragraph [12] of Decision: Since he filed the lien on April 21, 2009 he has not proceeded to move the matter along in any substantive or meaningful way. 53. sentence 4, Page 7, Paragraph [14]: has failed to provide reasonable, coherent, .. 54. Sentence 7, Page 6, Paragraph [15] and nothing has happened on this matter since were filed. 55. The Leaned Trial Judge error in law: misapprehension of the matter of

52.

Plaintiff not moving the Action along is unreasonable, based on a Material Misapprehension of the Evidence before the Court, and or tainted by a failure to consider relevant evidence material; Appellant could not schedule a meaningful discovery without the Mechanics Lien Contract documents, nor if necessary, could the Appellant set the matter down for Trial without assuring a irrecoverable prejudice and a definite loss for the Appellants Cause. The subject Contracts were integral to evidencing the merit of the Plaintiffs case. Further, the Appellant did appear at no less than 5 separate Court of Queens Bench, Moncton Trial Division, hearings (between December, 2009 March 23, 2011) filing under Rule 44 in an attempt to gain access to the subject Mechanics Lien Act Action documents. The Appellant did provide argument of this fact, one example is the Plaintiffs Submission 2, Paragraph 51 and 52 :

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May this please the Honorable Court the Plaintiff in an attempt to retrieve the here within above mentioned documents indispensable to the Plaintiffs successful DISCOVERY has attended three separate Court hearings involving the matter of access to the here within above mentioned contractual documents. 56. The Appellant did send Copy of (Plaintiff) Andre Murrays letter to the

Respondent, requesting documents pursuant to the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 32(1), Dated May 31, 2010 and four separate requests to Consent to a Continuance, all of which, as advancing the Action along was the extent of what was available to the Plaintiff without the necessary Contract Documents.

57.

Neither, the New Brunswick Rules of Court, or the Mechanics' Lien

Act, R.S.N.B. 1973, c. M-6 compels the Appellant, nor any other Applicant to have filed or served the subject Mechanics Lien Contracts.

58.

The Plaintiffs Submission 2 at paragraph 31 to 48 details the actions .returning to the Court of Queens Bench, Moncton Trial Division attending on the Motion to Rescind Orders of October 20th, 2009 at the following dates . the Plaintiffs RBC has managed to successfully Motion for Adjournment of same: 14 day of December 2009, January 18, 2010, March 22, 2010 Reason for the Delay Sentence 1 Page 6, Paragraph [12]: Murray has not provided this Court with a valid reason .

taken by the Appellant following the October 23, 2009 eviction.

59.

60.

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

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61.

How could the Appellant have reasonably moved the Action along

without having first served and notified the Defendant in the matter? Without Service of the relevant Documents, the Action could not continue past the 6 month time frame allowed by the rules of Court (Rules of Court, Rule 16.08 Time for Service) .The Appellant had only a four day window, between service of the Defendant with the Mechanics Lien Documents (October 19, 2009) and being vacated (October 23, 2009) without notice, from the location of the Mechanics Lien Contract Documents. From that time onward the Appellant has tirelessly pursued remedy by way of Court Order, for retrieval of the Mechanics Lien Contract documents, attending five separate hearings in the Moncton Courts, in an attempt to retrieve these subject documents. The reason for the Appellants delay was the standing October 20, 2009 Court Order, from the Judicial district of Moncton, which barred the Plaintiff from accessing the Mechanics Lien Contract Documents. It is unreasonable to state that an Order of the Court of the Judicial District of Moncton, is not a valid reason to not retrieve the subject documents, following six months of evasion of service on the part of the Defendant. Further, the Appellant did send Copy of (Plaintiff) Andre Murrays letter to the Defendant requesting documents pursuant to the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 32(1), Dated May 31, 2010, which is under the Mechanics Lien Act, to which the Defendant has never responded. 62. Prejudice The granting of a Continuance of the Mechanics Lien Action, is a

prejudice to neither Party, because both Parties have the opportunity to present the Merits of the Case before the Court and may achieve a just decision. The granting of a Continuance of the Mechanics Lien Action, maintains the status quo, by extending the time within which the Parties may resolve their dispute.

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The Learned Trial Judge made an error in Law, by not Granting the Continuance under these circumstances. 63. Page 6, whole Paragraph [14]: There . Murray has failed to demonstrate . 64. Page 4, Paragraph [9] According to Mr. Justice Grant in J. K. ... .. 65. Fact: there were many arguments and case law advanced by the

Appellant, for the Learned Trial Judge to consider, but the Court, relied on only one case J. K. Dineen Ltd. v. Morris Music Ltd., 2004 NBQB 43, further, based the Courts decision on one set of criteria only, which favors the Defendant, the Court must consider the reasons for the delay as well as whether there is any prejudice to the Defendant, Danielski. The Learned Trial Judge demonstrated that she did not appreciate the argument advanced by the Appellant, and failed understand the legal principles relied on in support of that argument, inter alia, that decisions of the Court must consider the balance of prejudice to both parties and all other relevant factors to make a just decision. 66. Sentence 3 Page 6, Paragraph [13]: Murray will not be deprived of his day in court by a denial of an extension of time under the Mechanics Lien Act. 67. The Appellant has been prejudiced by a denial of an extension of

time under the Mechanics Lien Act The Leaned Trial Judge made an error in law, the Act of the Learned Trial Judge of denying the Motion for a Continuance, terminates the Mechanics Lien Action, therefore the Plaintiff looses the opportunity to retain a hold on the tangible assets which is the

21

Marshall Street building and property into which the Appellant has $80,000 investment. For the Appellant to have his day in court, as stated by the Court would require the Respondent, to be Defending a new Action for Breach of Contract, which would place the Defendant in relatively the same position without the tangible Marshal Street assets to secure the Rights of the Appellant. Why would the Court suggest prejudice to the Defendant as being one of the reason for not granting the Continuance, the same or similar Prejudice would be replaced in another Action, so that the Appellant can have his day in court to resolve these unsettled matters. Ownership of Property 68. Sentence 1 and 2 Page 5, Paragraph [13]: The Defendant . She no longer owns this property. 69. Sentence 1 and 2 Page 5, Paragraph [15]: She does not own the property and has not since July 16, 2009. 70. Sentience 7 Page 5, Paragraph [11]: It appears it was properly foreclosed on by the Royal Bank. 71. The Leaned Trial Judge had made an error of law, or a significant

misapprehension of the evidence or failed to review and understand the relevant evidence. The Marshall Street Property is still Registered in the name of the Defendant. The Learned Trial Judge having heard the MOTION for ORDERS GRANTING A CONTINUANCE has not reasonably been presented with evidence of the Marshall Street Property being properly foreclosed on by the Royal Bank. Quite to the contrary Court has been presented with evidence of the Marshall Street Property being, not properly foreclosed on by the Royal Bank, considering Affidavit of Andre Murray

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Affidavit 3 of Andre Murray Dated February 4, 2011, Exhibit S. Copy of NOTICE OF DISCONTINUANCE (FORM 25A), Court of Queens Bench Moncton Trial Division, File Date Stamped November 5, 2010, and Exhibit T. Copy of a letter, by facsimile, from the Office of Stewart McKelvey, on behalf of Solicitor representing 501376 N.B. Ltd., a body corporate, Solicitor Hugh J. Cameron the acting Agent who had previously bid at auction, on behalf of 501376 N.B. Ltd., a body corporate, for the 29 and 31 Marshall Street, in the City of Fredericton, a Residential Duplex Property, PID No. 01548650 and PAN 506975. The scheduled July 16, 2009 Mortgage Sale was without Notice to the Appellant, a registered Lien Holder, as required by the property Act. Lastly the Marshall Street Property is still in the name of the Respondent. The Court was provided with a copy of Affidavit 2 of Andre Murray Dated May 31st, 2010 which had as Exhibit D- a Copy of a Property Information report, dated Aug 8, 2009 and - Exhibit E- Copy of a Deed Dated October 24, 2000. The Appellant did check as recently as June 27, 2011 and the subject property is still registered in the name of the Respondent. Mechanics Lien Documents Sentence 6 Page 6, Paragraph [12]: The Appellant did file every available document in the possession of

72. 73.

the Appellant at the time, but the Mechanics Lien Contract Documents are what is necessary to Move the Action along to Discovery or if necessary Trial, without the Mechanics Lien Contract Documents it is illogical to move forward and fatal to the Appellants interests. 74. Sentence 4 Page 6, Paragraph [13]:

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When Murray decided to file the lien he must have had . 75. The Appellant did have all the documentation together in order to

proceed with the lien at the beginning of the Action, and only because of the evasion of Service by the Respondent, and a Court Order baring the Appellant from accessing the documents, which resulted in the Appellant requesting of the Court a Continuance, so that the Appellant could in all fairness have all the documentation together in order to proceed with the lien. 76. Sentience 3 and 4 Page 5, Paragraph [11]: At that point he should have known . 77. The Appellant was in possession of the Contract documents at that

time, but did not know of there would be any need for Court proceeding, because had the Respondent honored the contracts, there would have been no need for Court Proceedings of any kind, whether Discovery or if necessary a Trail. 78. Sentience 5and 6 Page 5, Paragraph [11]: In fact the eviction notice he had ample time . 79. The Appellant was served a Ex parte Order of the Judicial District of

Moncton Court and forthwith (without the opportunity to gather the Appellants belongings) evicted from the 29 Marshall Street Property on the same day October 23, 2009 only four days after the Defendant was served with the relevant Mechanics Lien Action Court documents, on October 19, 2009. The Appellant attempted for almost six months to served the Respondent without success, and the day after the successful Service of Mechanics Lien Action Court documents, a Court hearing was conducted Ex Parte, in the

24

Judicial district of Moncton without notice to the Appellant, the results of which where not revealed to the Appellant until the Sheriffs arrived at 29 Marshall Street to Serve the subject eviction Order. The Appellant had in fact only 4 days to act on the Mechanics Lien Action which did not need further actions until a further six months time. The Courts erroneous view that the Plaintiff had ample time to gather together all of his important documents, is completely contrary to the evidence and presented argument. The Learned Trial Judge failed to review and understand the relevant evidence and failed to make the necessary findings of fact. 80. Sentence 2 and 3 Page 6, Paragraph [12]: In an affidavit executed on April 20, 2010 Murray alleges that he has documented evidence ... 81. Fact: the Appellant has provided the Court with all the documentation

which could be obtained by other means, and of the documents listed in the Plaintiffs April 20, 2010 Affidavit, a paragraph 27, the documents as listed as subparagraph b, c, e, f, and g have been provided, the only documents which have not yet been provided are subparagraph a and d which are the subject Contracts and namely paragraph a being the Mechanics Lien Contracts. The Appellant was given no notice of the October 20, 2009 Ex parte Moncton Eviction Hearing, nor told the results of that same Hearing before the Sheriffs arrive at the Appellants door, causing an immediate eviction (the Appellant was unreasonably given no time to gather the Appellants belongings). Reference: (1) The Plaintiffs Submission 2 at paragraph 51 Reference: (2) The Plaintiffs Submission 1 Paragraph 29 and 30

25

Reference: (3) The Plaintiffs Submission 1 at paragraph 19 to 23 states the following :The Appellant was given no notice of the Mortgage Sale, before the Mortgages Sale occurred. Sentence 3, Page2, Paragraph [3] There is no detail provided in affidavit 1 this matter. 83. Fact: the material that was necessary to proceed to Discovery is

82.

Contractual Agreements to furnish material and or Supplies to be used in improvement for the premises, civic address 29 and 31 Marshall Street at the city of Fredericton. Without which, the Plaintiff has no substantive evidence and documents relevant and absolutely necessary to schedule an examination for discovery or if absolutely necessary move the Action to Trial. Without the subject contractual documents to examine, consequently the Plaintiff would be doomed to failure at discovery or if necessary a trial. Recovery of Documents Sentience 1 Page 5, Paragraph [11] Fact: The Appellant did provide a copy of all the documents which Copy of a Power of Attorney dated November 14, 2002 Copy of a Deed Dated October 24, 2000 Copy of Lease for 29 Marshall Street 31 Marshall Street property, Dated September 1, 2005 Copy of REVOCATION OF POWER OF ATTORNEY Dated May 29th, 2008 Copy of the Order from the Court of Queens Bench Trial Division, Moncton, Dated October 20th, 2009 Appellant did not have were contractual documents with which to

84. 85.

were available to him at the time, namely:

86.

provide further information of said documents, Further, The Plaintiffs

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Submission 2: Paragraph 31 to 48 details some of the actions taken by the Appellant in attempting to retrieve the subject documents. No less than 5 separate, Moncton Trial Division, hearings (December, 2009 March 23, 2011) attempting to gain access to the subject substantive documents, as more fully detailed above. The Appellant has provided argument of this fact, one example is the Plaintiffs Submission 2, Paragraph 51 and 52.

87.

Learned Trail Judge has reasonably demonstrated Omissions in Reason

for judgment, that which amount to material error, because the necessary evidence, was incidentally left out, giving rise to a reasonable belief the trial judge has forgotten, ignored or misconstrued evidence in a way that consequentially affects the Honorable Courts final conclusions. Reasonable Apprehension of Bias 88. Natural justice requires administrators to adhere to fair decision

procedure. The bias rule - decision maker must be impartial and must display no reasonable apprehension of bias. Justice must not only be done, but must be seen to be done. Appellant contends and will demonstrate that a reasonable apprehension of bias arose by the fact that the Learned Trial Judge only accepted argument and evidence which favored the Respondents position, further, Learned Trial Judge verbalized blatantly erroneous statements again based on erroneous information, moreover, not consonant with the facts of this ACTION. Please note: Impartiality is a principle of Justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons.

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89.

Example: At Page 3, Paragraph [4] of the Court Decision: The second affidavit does not contain any further clarification of the necessary material needed to proceed to a discovery. The only helpful additional information.

90.

Learned Trial Judge reveals Reasonable Apprehension of Bias finding

The only helpful additional information is found in paragraph 16, Learned Trial Judge unilaterally highlighting information therefore appearing to counter to the Appellants position thereby favoring the Respondent and clearly dismissing the remainder of the relevant evidence in the very same Affidavit.

91.

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

92.

Appellant observes Reasonable Apprehension of Bias exists because

Learned Trial Judge only accepted argument and evidence favoring Defendants position, Learned Trial Judge made erroneous statements evidentially based on this above mentioned incorrect argument and evidence information, entirely contrary to the facts of the case. The Court insisted Appellant must; provide reason for delay, which in fact the Appellant already did. 93. Page2, Paragraph [5] Murray filed a third affidavit very little to clarify matters. 94. Learned Trial Judge displayed Reasonable Apprehension of Bias

regarding Affidavit 3 of Plaintiff Andre Murray Dated February 4, 2011, contrary to the erroneous position as stated by the Honorable Court does in fact provide, inter alia relevant documents: Exhibit R. Copy of STATEMENT OF PARTICULARS (FORM 27M) Dated the 10th day of June, 2010 and

28

Exhibit S. Copy of NOTICE OF DISCONTINUANCE (FORM 25A), Court of Queens Bench Moncton File Date Stamped November 5, 2010. 95. Plaintiff Andre Murray Affidavit 3 Dated Feb. 4, 2011, Paragraph 13)

I Andre Murray . Immediately began to attempt Service upon the named Defendant Betty Rose Danielski, was avoiding Service Further, at Paragraph 15) I Andre Murray Plaintiff after many attempted and unsuccessful hire a Professional Process Server, who also confirmed to the Plaintiff that the Defendant was indeed avoiding Service. Paragraph 13 and 15 are to clarify matters the reason almost six months transpired as avoidance of Service before successful Service of Court Documents inter alia, upon Defendant. Learned Trial Judge: it offers very little to clarify matters is misapprehension. Learned Trial Judge further failed to acknowledge letters sent to the Defendant by Plaintiff therefore requesting Defendant consent to Continuance of the Action. 96. 97. Sentence 5, 6 and 7 Page 6, Paragraph [13]: Learned Trial Judge displayed Misapprehension/Reasonable

Apprehension of Bias regarding above It should be remembered that Danielski did not directly have any business dealings with Murray. also her Power of Attorney Learned Trial Judge unilaterally providing argument arriving at conclusions not provided by AFFIDAVIT / SUBMISSIONS nor by brief on the RECORD. Learned Trial Judge selectively isolated material / highlighting information NOT AT ISSUE to detract from Plaintiffs position. 98. Page 6, Paragraph [14]:

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There will be prejudice to the Defendant Murray has failed to demonstrate no prejudice by allowing a continuance . It will prejudice the Defendant Defendant that she will suffer prejudice. 99. Learned Trial Judge displayed Reasonable Apprehension of Bias

accepting only arguments from DEFENDANT therefore prejudice against the DEFENDANT yet could not nor pointed to any evidence in existence. 100. 101. Sentence 7, Page 5, Paragraph [11]: Learned Trial Judge exhibited Reasonable Apprehension of Bias thereby

erroneously declaring that subject Marshall Street property was properly foreclosed on by the Royal Bank. Honorable Court had insufficient evidence to determine this as fact, moreover, the Court had evidence confirming the contrary: a) purchaser of Mortgage had withdrawn form the auction. b) foreclosure prerequisites POWER OF SALE not executed no NOTICE

102.

Appellant contends a Reasonable Apprehension of Bias, that the learned

Trial Judge only accepted argument/evidence favoring Defendants position, further Learned Trial Judge made statements within the decision which reasonably must be misapprehension of Law according to the facts of the case. Costs Appellant will demonstrate that a grossly unfair allocation amounts to

103.

an error of principle, further, exercise of Trial Judges discretion in this matter was affected by error in principle and or by misapprehension of the facts.

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104.

Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The law

never works an injury, or does a wrong. Appellant claims Learned Trial Judge exercised discretion with regards to Cost awarded in favor of the Defendant are manifestly without merit, therefore injustice would result if the Cost award is allowed to stand. Abuse of Discretion is defined by Lectlaw at the following website: (http://www.lectlaw.com/def/a004.htm) ABUSE OF DISCRETION When a court does not apply the correct law, or if it rests its decision on a clearly erroneous finding of a material fact. U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir.'93). A court may also abuse its discretion when the record contains no evidence to support its decision. MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91) .. judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion.

105.

The learned Trial Judge exercised discretion but did so, in a way that is

clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. Abuse of Discretion defined by Cornell Law University Website: (http://topics.law.cornell.edu/wex/abuse_of_discretionAbuse of discretion) A judgment will be termed an abuse of discretion if the adjudicator has failed to exercise sound, reasonable, and legal decision-making skills. 106. Learned trial Judge erred in law in application of judicial discretion,

thereby exhibiting partially, such as in this case may result in Ruling reversal.

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107.

Manifest Abuse of Discretion as defined by: duhaime.org at

http://www.duhaime.org/LegalDictionary/M/ManifestAbuseofDiscretion.aspx In Malicoat, the Indiana Court of Appeal preferred: "[M]anifest abuse of discretion ... is when the trial court's decision is clearly against the logic and the facts of the case." in Bitterrooters, the Montana Supreme Court used these words: "A manifest abuse of discretion is one that is obvious, evident, or unmistakable." 108. Manifest Abuse of Discretion must be obvious, evident, and or

unmistakable, as in this case Appellant alleges to have suffered. Since The law will not intend a wrong., Bacon's Maxims (17, reg. 3). Respondent for six months avoided Court Service also conspiring with RBC initiating a foreclosure evict (vacant possession) of Appellant, further, refused to produce documents and finally denied four requests of Consent to a Continuance, and despite all this uncooperative behavior, Defendant was awarded Costs. The Appellant, desiring a cost effective resolution did request consent

109.

of Respondent to a Continuance of the subject Mechanics Lien Action a) May 31, 2010; b) November, 22nd, 2010; c) November 23, 2010 d) January 20, 2011.

110.

The Appellant without exception adhered to the Rules of Court in

pursuance of the Mechanics Lien Act. Within Plaintiffs SUBMISSION 2, is a 30 page Should the Defendant pay costs of the within Motion? Appellant

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further requested an Order that Defendant pay, forthwith, costs of the subject Motion consequential of the Defendants, non-compliance with Rules of Court. The Appellant, in this matter, has provided ample argument, as evidenced by the Record of a history of the Defendant in that matter, of non compliance with the Rules of Court, furthermore, the Appellant relies upon the Respondents Solicitors adherence to The Law Society of New Brunswicks Code of Professional Conduct, CHAPTER 15 Section 2 (iii), 2 (v), 2 (vii) and Section 4, consequently, the Appellant requested of the Court of first instance, to consider the above when ruling as to costs of the subject Motion. To this effect the Appellant provided the Honorable Court with itemized list of Rules of Court which the Respondent has a history of non compliance, inter alia, Rules of Court, Rule18.02, Rule 18.03, Rule 20.01, Rule 20.02, Rule 27.03, and Rule 27.04. Furthermore, Appellant provided a letter to the Respondent requesting Documents pursuant to the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 32(1), Dated May 31, 2010, although the Act compels the Respondent to respond, Respondent did not.

111.

Appellant (as Plaintiff) provided argument that Costs should be

awarded. It follows: lay litigants who demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer, retained to conduct the litigation, and that as a result, lay litigants, by foregoing remunerative activity, incurred an opportunity cost; which included: a) a Record on Motion Book 1 b) subsequent Record on Motion Book 2, c) The Plaintiffs Submission Book 1 (90 pages) d) Plaintiffs Submission Book 2 (290 pages), including 32 listed authorities,

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e) a Brief for the Courts convenience f) Oral presentation (not permitted to present the Honorable Court) Hearing of the matters February 14, 2011. Appellant provided voluminous submissions, affidavit evidence with exhibits, substantiating the Plaintiffs argument. In contrast the Respondent allegedly provided nothing, other than a single Brief since the first Hearing June 10, 2010. Appellant contends: no work equals no merit, further, equals no costs.

112.

Manifest Abuse of Discretion: Court decisions unsupported by

evidence and based on a erroneous findings of a material fact, in this matter it a disservice to the administration of justice occurs if Award of Costs stand. Regarding Order Sought In Noble Securities Holding Limited v. Tremblay, 2007 NBCA 91

113.

(CanLII), J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK, explained why the Court may render any decision and make any order which ought to have been made, and may make such further or other order as the case may require, at paragraph 12 as follows: [12] Under Rule 62.21(1) this Court may render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. In our view, it is appropriate to extend the deadlines set by Rule 37.06(1) and to rescind the decision of January 23, 2006 pursuant to that Rule. 114. This full section 62.21 of the Rules of Court of New Brunswick is 62.21 Powers of Court of Appeal To Draw Inferences and Make Decisions

quoted below:

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(1) The Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. 115. In consideration of the following Appellant Andre Murray respectfully

requests, that this Honorable Court of Appeal under Rule 62.21(1) grant a Continuance of the Mechanics Lien Action pursuant to section 52.1 (2) of the Mechanics Lien Act. Part V A concise statement of the order sought from the Court of Appeal, including any special disposition with regard to costs; 1. The appellant asks that the decision of Honorable Madame Madam Justice J. L. Clendening, Queens Bench Trial Division, Judicial District of Fredericton, Dated the 24th day of June, 2011, be in its entirety set aside and that a new hearing be held. 2. The Appellant asks that this Court Order a continuance under the Mechanic Lien Act, R.S.N.B. 1973, c. M-6, providing sufficient time for the parties to hold a Discovery, after which, if settlement cannot be achieved between the Parties, then the matter be set down for Trial and that this Court Order costs in favor of the Appellant. 3. The Appellant asks that this Court Order costs in favor of the Appellant, regarding this Appeal. ALL OF THIS respectfully submitted at the City of Fredericton, New Brunswick, this . . . . day of . . . . . . . . . . . . . . . , 2011

______________________________ ANDRE MURRAY APPELLANT

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36

a) Schedule A - A list of authorities in the order referred to in the Submission; and___________________________________________ 1. Reference: Maxim Audi Alteram Partem (Latin; literally 'hear the other side') 2. Reference: Black's Law Dictionary (8th ed. 2004), APPENDIX B at Page 5263 Audi alteram partem. Hear the other side. No one should be condemned unheard 3. Reference: principle of natural justice is found at wikipedia.org address provided below: (http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua) 4. Reference: Audi Alteram Partem Latin; literally 'hear the other side'.duhaime.org address provided below: http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx 5. Reference: The maxim nemo judex in causa sua debet esse - no person can judge a case in which he or she is party or in which he/she has an interest 6. Reference: R. v. R.D.S., 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484 Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ for an elaboration of this principle at paras. 109 -120, inclusive 7. Reference: Nemo Judex In Parte Sua. The following is found at duhaime.org at the following address: http://www.duhaime.org/LegalDictionary/N/Nemojudexinpartesua.aspx 8. Reference: wikipedia.org at the following address: http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua 9. Reference: Black's Law Dictionary (8th ed. 2004), Page 4288 defines the word SHALL 10. Reference: Black's Law Dictionary (8th ed. 2004) defines Abuse of Discretion

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11. Reference: Abuse of discretion is defined at the following address: http://legal-dictionary.thefreedictionary.com/Abuse+of+Discretion 12. Reference: Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) (per Justice H. H. McLellan) stated his view regarding the discretion of the Trial Judge and also his view that the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits. Please see: Discretion of Trial Judge page 6 9 13. Reference: Black's Law Dictionary (8th ed. 2004), defines Justice 14. Reference: Black's Law Dictionary (8th ed. 2004) defines merits 15. Reference: Merriam-webster.com defines merit at the following address (http://mw4.merriam-webster.com/dictionary/merits) 16. Reference: Black's Law Dictionary (8th ed. 2004) defines Construe 17. Reference: Black's Law Dictionary (8th ed. 2004) defines Just 18. Reference: on the merits is defined by legal-dictionary.com at the following internet web address: (http://legaldictionary.thefreedictionary.com/on+the+merits) 19. Reference: Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The law never works an injury, or does a wrong 20. Reference: Abuse of Discretion is defined by Lectlaw at the following website: (http://www.lectlaw.com/def/a004.htm) 21. Reference: Abuse of Discretion is furthermore defined by the Cornell Law University Website at the following website address: (http://topics.law.cornell.edu/wex/abuse_of_discretionAbuse of discretion) 22. Reference: Manifest Abuse of Discretion is defined by duhaime.org at the following address: (http://www.duhaime.org/LegalDictionary /M/ManifestAbuseofDiscretion.aspx)

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23. Reference: Noble Securities Holding Limited v. Tremblay, 2007 NBCA 91 (CanLII), J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK, explained why the Court may render any decision and make any order which ought to have been made, and may make such further or other order as the case may require, at paragraph 12

b) Schedule B - The text of all relevant provisions of Statutes or Regulations (or copies of the complete Statute or Regulation may be filed and served with the Submission).________________

Rule1.03 CITATION, APPLICATION AND INTERPRETATION: 1.03 Interpretation 1.03 (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. Rule 39.01 EVIDENCE ON MOTIONS AND APPLICATIONS 39.01 By Affidavit (1) On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order. Rule 39.04 EVIDENCE ON MOTIONS AND APPLICATIONS 39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing.

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62.21 Powers of Court of Appeal To Draw Inferences and Make Decisions (1) The Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require.

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40