August 9, 2010 INTENDED APPELLANT's Submission used to successfully argue for Leave to Appeal. The Court of Appeal of N.B. File Number 82/10/CA ANDRE MURRAY v. BETTY ROSE DANIELSKI

7/30/2019 August 9, 2010 INTENDED APPELLANT's Submission used to successfully argue for Leave to Appeal. The Court of A

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Court of Appeal File Number: 82 10 - CA(Court File Number: F/C/104/09)

IN THE COURT OF APPEAL OF NEW BRUNSWICK

BETWEEN: ANDRE MURRAY

INTENDED APPELLANT (Plaintiff)

-and-

BETTY ROSE DANIELSKI

INTENDED RESPONDENT (Defendant)

_____________________________________________________________________

INTENDED APPELLANTS SubmissionFiled by the Self Represented INTENDED APPELLANT Andr Murray

_____________________________________________________________________

Andr MurrayINTENDEDAPPELLANT(Plaintiff )

31 Marshall Street,Fredericton,New Brunswick,E3A 4J8Telephone Number:

(506) 472 - 0205E-mail address:[email protected]

Solicitor forINTENDEDRESPONDENT(Defendant) Betty RoseDanielski

E. Thomas Christie, QCCHRISTIE LAW OFFICESuite 306,212 Queen Street

Fredericton,New BrunswickCanadaE3B 1A8Tel: (506) 472 2090Fax: (506) 472 2091E-Mail:[email protected]

Betty Rose DanielskiINTENDEDRESPONDENT(Defendant)Apt 603166 Carlton StreetToronto, Ont.M5A 2K5


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PART 1 INDEX

Book 1

PAGE

A. PART I INDEX _____________________________________________ii

B. PART II STATEMENT OF FACTS ____________________________ 1

C. PART III - ISSUES _____________________________________________

1. Questions for the Court to answer_________________________________

2. Introduction __________________________________________________3. Final Order____________________________________________________

4. Rule 1.03 Interpretation_________________________________________5. Rule 39.01 Evidence on Motions__________________________________6. Rule 39.04 Service of Affidavits__________________________________7. Rule 2.03 Attacking the Regularity of Proceedings____________________8. Maxim -Audi Alteram Partem -Latin; literally 'hear the other side________9. Maxim - 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.________10.Admitting hearsay evidence______________________________________

D. PART VI ORDERS SOUGHT____________________________________

E. SCHEDULE A LIST OF AUTHORITIES _______________________

F. SCHEDULE B TEXT OF RELEVANT PROVISIONS OFSTATUTES OR REGULATIONS _______________________________

G. SCHEDULE C LISTED AUTHORITIES FULL DISCISION CITED________________________________________

1. Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 (CanLII) found atTAB.. of The Plaintiffs Submission Court File Number: F/C/104/09

2. MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.) _________

3. Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.)________________________

4. Bari c. R., 2006 NBCA 119 (CanLII)______________________________


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5. R v Bridges, 2005 MBQB 118 (CanLII)____________________________

6. R. v. Duguay, 2005 NBQB 63 (CanLII)____________________________

7. R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358_____________________8. Toronto-Dominion Bank v. Cambridge Leasing Ltd.,

2006 NBQB 92 (CanLII)________________________________________

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

10.Consequences of a Breach of Procedural Fairness__________________________


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looking at the order or decision itself. The nature of the order or decision, asmade, finally disposes of, or substantially decides the rights of the parties;consequentially it ought to be treated as a final order or decision.

7. The learned trial judge erred in law in not keeping with the generaldirection as found expressed in the New Brunswick Rules of court Rule1.03 (2) to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits rather than reviewingand or examining evidentiary affidavit evidence material and orconsidering argument from the opposing parties to the Motion theHonorable Justice Adjourned the Hearing of the Motion for 15 minutes(which became one hour) for the purposes as instructed and as directed bythe Honorable Justice that the Solicitor for the Defendant shall leave theCourt room to search by telephone for the answers to the MadameJustices leading substantive questions. Note; up and until this point in theHearing, Madam Justice continued to dominate the Hearing as allsubmissions on record were those of Madam Justice. Arguments from

Plaintiffs or Defendants were not being allowed. The INTENDEDAPPELLANT Andre Murray (Plaintiff in that matter) stood perplexed atsuch an impugned contention that a Defendant to an action could possiblybe directed to telephone two primary opponents to the success of theINTENDED APPELLANT Andre Murray (Plaintiff in that matter)furthermore, the incredulous and or implausible possibility that the returnof the aforementioned from the adjournment and the probability of theresultant telephone enquiries being unbiased and or independentmeritorious answers. The INTENDED APPELLANT (Plaintiff in thatmatter) stood before the aforesaid Honorable Court following theadjournment, further, The INTENDED APPELLANT listened as the

Honorable Madam Justice subsequently, accepted the hearsay submissionsof the returning Solicitor for the Defendant. The INTENDEDAPPELLANT trusts that this irregularity complained of mentioned andfound here within is objectionable to such a degree as to be self evidentthe environment was being set for unfair Hearing. As mentioned, themeritorious quality or lack thereof, regarding hearsay must not beunderstated and consequently cannot be seriously considered as a meansof securing a just determination of any matter.

8. The learned trial judge committed an error in law in not keeping with thegeneral direction expressed in the New Brunswick Rules of court Rule

1.03(2) to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits in not taking intoconsideration the prejudice to the (Plaintiff in that matter) INTENDEDAPPELLANT Andre Murray by raising issues not argued by either party andconversely the learned trial judge avoided considering all pledging filed asmeritorious and or substantive by both parties to the Motion for orders includingthat pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, the


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mechanics Lien Action be continued until October 21, 2010 or furtherOrder of this Court Continuance .

9. The learned trial judge committed an error in law in not keeping with thegeneral direction expressed in the New Brunswick Rules of court Rule

1.03(2) to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits in that the Madame Justicein hearing the Plaintiffs AMENDED NOTICE OF MOTION (FORM 37A) Filedwith COURT OF QUEENS BENCH FREDERICTIN TRIAL DIVISION,further, was received and filed Stamped /Dated MAY 31 2010, furthermore,upon the hearing of the subject motion the order sought as provided and listed as:a) That, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, themechanics Lien Action be continued until October 21, 2010 or furtherOrder of this Court. The Trial judge instead appeared and did entirelyneglect to address the aforementioned requested order and insteadaddressed only the next order as listedb) That the Court grant a Extension of time pursuant to Rule 3.02 of the

Rules of Court,May it Please this Honorable Court;INTENDED APPELLANT Andre Murray has purchased a CD disk of theCourt Hearing transcript and has commissioned a written transcript.Subsequentially, after listening to the aforementioned CD disk Transcript asprovided by Court of Queens Bench, Fredericton Client Services, further, after adozen listening reviews of said CD disk Transcript it is realized thatINTENDED APPELLANT Andre Murray is not permitted to speak or counterclaim as Madame Justice dominates the entire Hearing, speaking on behalf ofboth the Plaintiff and Defendant to the Motion. At theend of the first Hearing 9 minutes, and after the one hour adjournment, asMadame Justice instructed the Solicitor for the Defendant to gather hearsayinformation for which Madam Justice announced in advance of receiving theanswers to her verbalized questions, that if the answers are, as Madam Justiceexpected, than, Madam Justice would consequentially rely on the hearsayanswers returned to her following the adjournment and did in fact, render adecision of Motion Dismissed duration of second hearing, was nothing morethan 11 minutes.NOTE:INTENDED APPELLANT Andre Murray is able near the end of the Hearingto briefly utter words to the effect that he requires his requested Order ofpursuant to section 52.1 (1) (b) of the Mechanics Lien Act a Continuanceof the Action. Unfortunately, Madame Justice neglected to reply to these

pointed assertions of intended Appellant Andre Murray, instead Madame Justiceinsisted on addressing only the matter ofExtension of time pursuant to Rule3.02.

10.The learned trial judge erred in law in not adhering with the Rule 39.01 (1)On a motion or application evidence may be given by affidavit unless directedotherwise by these rules or by order., The learned trial judge made the pivotaldecision in hearing the said Motion dated the 10th day of June, 2010 of whetherto allow a Extension of time pursuant to Rule 3.02 of the Rules of Court,


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relying on inadmissible hearsay information, moreover as listed in thatMotion as orders sought first and primary was listed as the followingprovided immediately following which incidentally was continuallyignored by Madame Justice;a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, the

mechanics Lien Action be continued until October 21, 2010 or furtherOrder of this Court .

11.The learned trial judge erred in law in not Ordering an extendedadjournment adequate so that admissible evidences of the requestedinformation could be obtained by affidavit and served on the effectedparties according to the Rules of Court, Rule 39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, anyperson who intends to give affidavit evidence at the hearing shall serve a copy ofsuch affidavit (a) on the person giving the notice, and (b) on each person servedwith the notice, at least 4 days prior to the date set for the hearing.

12.The learned Trial Judge erred in law, in irregularly applying the CourtsDiscretion to not Grant a Continuance according to section 52.1 (1) (b) ofthe Mechanics Lien Act. The Plaintiff INTENDED APPELLANT AndreMurray brings the Courts attention according to Rules of Court, Rule 2.03Attacking the Regularity of Proceedings and considers that the learned TrialJudge improperly exercised, with prejudice, the Courts Discretion inarriving at the final decision.

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

expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear theother side'). The maxim means, in law, that no person shall be condemned,punished or have any property or legal right compromised by a court oflaw without having heard that person. The learned trial judge, would notallow the Plaintiff INTENDED APPELLANT Andre Murray to be heardand nor to address the Court and explain why the Court should not makethe decision based on the new information proposed, and address why thatreasoning was flawed based on the merits of facts found within documentsfiled within the file to be reviewed and considered during the very casebefore the Honorable Court.

14.The learned trial judge erred in law in not recognizing the principal of lawexpressed in the Maxim Audi Alteram Partem, vide supra, in notconsidering documents filed by the Plaintiff INTENDED APPELLANTAndre Murray to address the fact that the Prospective purchaser, 501376N.B. Ltd, a body corporate at the Mortgage Sale, had caused a contract to besigned, Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE,dated July 16, 2009 which specifically stated that the purchasers wouldhonor all Liens in full on the date of delivery of the Deed to such


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purchaser, furthermore since the Plaintiff (in the Motion questionedherein) and INTENDED APPELLANT Andre Murray(in this matterbefore the Court of Appeal) was not permitted to speak to these matters..

15.Furthermore, the learned trial judge erred in law in not recognizing the

principal of law expressed in the Maxim Audi Alteram Partem, vide supra,in the present case, by not allowing the Plaintiff - INTENDEDAPPELLANT Andre Murray to draw the learned trial judges attention tothe fact that the source of the pivotal information which the MadameJustice ultimately relied upon, was not Sworn to under Oath, and washearsay information sourced from two Solicitors both with blatantlyevident and potential conflicts of interest:

Intended Appellant (Plaintiff) Andre Murray very believe to be true that:George LeBlanc vendor of the Investment Instrument Mortgagee Deedregistered against subject property. This same interest was sold at Auction

to Solicitor Hugh Cameron acting as Agent for Purchaser.Solicitor Hugh Cameron acting as Agent for Purchaser, 501376 N.B. Ltd, abody corporate, who signed a Bidding Papers & Terms of SaleAGREEMENT TO PURCHASE, dated July 16, 2009, regarding the verysame property, which said agreement stated as follows:the purchaser agrees to pay any outstanding ..Liens,,as found at paragraph 10 and reproduced for consideration in full below:

a. All real property taxes, water rates. liens, chargesand/or local assessments, if any, shall be for theaccount of the purchaser and the purchaser agreesto pay any outstanding real property taxes, waterrates, liens, charges and /or local assessments infull on the date of delivery of the Deed to suchpurchaser.

16.The learned trial judge erred in law in not recognizing the principal of lawexpressed in the Maxim Audi Alteram Partem, vide supra consequentially,did not address the requested order as follows: That, pursuant to section52.1 (1) (b) of the Mechanics' Lien Act, the mechanics Lien Action becontinued until October 21, 2010 or further Order of this Court;furthermore, instead learned trial judge erred in law focusing primarily onthe following requated order as listed b) That the Court grant a Extensionof time pursuant to Rule 3.02 of the Rules of Court. NOTE: TheMortgage sale had not yet closed and at any time the tentative purchaserscould back out of the Terms of Sale resulting in a new Mortgage auctionor private sale of the property which is the same subject property of theMechanics Lien action and Motion for which leave to Appeal is requested,furthermore, which such a possible and likely scenario could provide thesubsequent Sale with the funds necessary for compensation of the


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Intended Appellant Andre Murray(Plaintiff in that matter) in accordancewith the subject Mechanics Lien Claim.

17.The learned Trial Judge erred in law in not recognizing the principal oflaw expressed in the maxim nemo judex in causa sua debet esse which

underlies the doctrine of "reasonable apprehension of bias". The appellantcontends that a reasonable apprehension of bias arose by the fact that thelearned Trial Judge, announced the information required for the Court tocome to a predictable decision favorable to the Defendant, then charge theSolicitor Thomas Christie for the Defendant to collect that vary sameinformation, without questioning the validity or reliability of the sameinadmissible hearsay information.

18.The learned Trial Judge erred in law in not recognizing the principal oflaw expressed in the maxim nemo judex in causa sua debet esse, vide supra ,the learned trial judge relied upon information which had a reasonable

apprehension of bias, was not sworn to under oath, possibly said in errorand was hearsay information sourced from the same Hugh Cameron actingas Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed aBidding Papers & Terms of Sale AGREEMENT TO PURCHASE, datedJuly 16, 2009, regarding the very same property, which stated thepurchaser agrees to pay any outstanding ..Liens,, at paragraph 10reproduced in full below:

10. All real property taxes, water rates. liens, chargesand/or local assessments, if any, shall be for the account ofthe purchaser and the purchaser agrees to pay any

outstanding real property taxes, water rates, liens, chargesand /or local assessments in full on the date of delivery of theDeed to such purchaser.

19.The trial judge erred in law in both requesting hearsay evidence fromSolicitor Thomas Christie for the Defendant than accepting hearsay asevidence before the Honorable Court about the sale price without the useof Filed Affidavit Proof of Claim. The circumstances surrounding theentry into and on record of the hearsay Claims could not have theguarantee of trustworthiness necessary to allow their admission asevidence. NOTE: As this very same hearsay was being heard confusionas to the actual numbers and details required a correction and repetition ofthe Entry on Record.

20.The trial judge erred in law in admitting as evidence, hearsay statementsby Solicitor Thomas Christie for the Defendant, offered to the HonorableCourt regarding the outstanding amount owing to RBC - the vendors ofthe Investment Instrument Mortgagee Deed following a Notice ofMortgage Sale effecting the Property Sale. The information source was


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the Solicitor for the Tentative purchaser of the Mortgagee Deed whoseanswer could have been made in error , possibly incorrectly heard over thetelephone and or may have alluded to the advantage of his client. Thecircumstances surrounding the making of the impugned entries On Recorddid not have the guarantee of trustworthiness necessary to allow their

admission.21.The learned trial judge erred in law in making a discretionary decision,

which was not based on argument, not raised or offered by either party,not submitted by affidavit evidence by either the Plaintiff or Defendant,furthermore, and had departed from the matters in dispute between theparties to the prejudice of the Plaintiff INTENDED APPELLANT AndreMurray.

22.The learned trial judge erred in law in demonstrating prejudice, decidingthat the Motion and orders requested and found listed within same would

not be entirely considered furthermore Madame Justice only permitted forreview of certain predetermined criteria, being advanced by the HonorableCourt, further addressing only one of the requested orders and not basedon or permitting argument offered by either party to the action, nor wasthe aforementioned requested orders judged on the merits of alldocuments submitted and filed with Court of Queens Bench, furthermore,which were intended to be used as argument by the Plaintiff in that Motionand said denial was consequentially, to the prejudice of the INTENDEDAPPELLANT (same person)Andre Murray.

23.The trial judge erred in law in not Ordering an adjournment of sufficienttime, that the answers to prescribed questions, as was requested byMadame Justice, would or could be properly obtained and properly Filedwith the Honorable Court by affidavit than properly served on the effectedparties according to the Rules of Court, Rule 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 shallserve 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 setfor the hearing. Which is to the prejudice of the Plaintiff INTENDEDAPPELLANT Andre Murray.

24.The trial judge erred in law in not ordering a Continuance based on themerits of submitted affidavit evidence and circumstances of the case. Theduty of the court is to ensure, as much as is possible, that justice is done, itis most unfair to deprive the Plaintiff Andre Murray and INTENDEDAPPELLANT (in this matter) of a opportunity to plead on the record toreveal the facts of the case on its merits.


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C

PART III - ISSUES

1. Questions for the Court to answer.

A. Should the Court grant The plaintiff Andre Murray leave to appeal from the order(or decision) of the Honourable Madame Justice Paulette C. Garnett., dated the10th day of June, 2010 pursuant to Rule 62.03?

B. Should the Court grant a Continuance of the Mechanics Lien Action pursuant tosection 52.1 (1) (b) of the Mechanics Lien Act?

C. Should the Court grant a Extension of time pursuant to Rule 3.02 of the Rules ofCourt,

D. That the Defendant pay costs of the Motion, (Court File Number: F/C/104/09)heard June 10th, 2010 before the Court of Queens Bench of New Brunswick TrialDivision Judicial District of Fredericton,

E. That the INTENDED RESPONDENT pay costs of the within Motion,

2) Introduction

Honorable Madam Justice Paulette Garnet erred in law as Honorable Madam Justice PauletteGarnet arrived at decisions in law based on erroneous information in which case the learned judgetreated the erroneous information as fact. Hearsay was allowed to be entered as fact, the learnedJudge instructed the Solicitors to

The following s from West's Encyclopedia of American Law, edition 2., published byThomson Gale found at the following address:http://legal-dictionary.thefreedictionary.com/continuance

A delay in filing pleadings, which surprises the opposing party and affects the

issues in an action, ordinarily entitles the adverse party to a continuance , since thatparty must be given time to prepare a response before the trial in order to preventprejudice to his or her rights. A continuance may be granted for the accidental lossor destruction of papers in an action provided they cannot be readily replaced andthe applicant for the continuance was not responsible for their loss.

The trial judge erred in law in admitting as evidence, the hearsay statements obtained bySolicitor for the Defendant Thomas Christie.


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A certain complicity and therefore evident bias was demonstrated by Madame Justice asthe learned judge instructed Solicitor Thomas Christie as it was agreed between theCourt/Bench and the Solicitor for the Defendant Thomas Christie that during anadjournment scheduled for fifteen minutes Solicitor Thomas Christie would than k nmenthe was to leave the The complicity between the Madame Justice and Solicitor for the

Defendant that prior to and up to the adjournment is was decided and or agreed betweenthe Court Madame Justice Garnet and Solicitor Thomas Christie for the Defendant asdirected by Court Madame Justice Garnet that the decision or outcome of the subject trialwill hinge on if enough funds are currently left outstanding and sufficient enough tojustify the extension as requested by Plaintiff Andre Murray. be left to determined thesale price o about the outstanding amount owing to RBC before the Auction of theassociated investment instrument called a Mortgagee Deed. The information source wasthe Solicitor for the tentative purchaser of the property whose statement could have beenmade in error or purposefully misleading to the advantage of his client. Thecircumstances surrounding the making of the impugned statements did not have theguarantee of trustworthiness necessary to allow their admission.

In R. v. S. (R.D.), [1997] 3 S.C.R. 484, the header of the Courts decision sums up thecase before the supreme Court and provide relevant insight into the reasonableapprehension of bias displayed by the actions and assertions of Honorable Madam JusticePaulette Garnet, the relevant section ofR. v. S. (R.D.), [1997] 3 S.C.R. 484 is provided in thefollowing:

(1) Consideration of Supplementary Reasons

Per curiam: The supplementary reasons issued by the Youth CourtJudge after the appeal had been filed could not be taken into account in assessingwhether her reasons gave rise to a reasonable apprehension of bias.

(2)Reasonable Apprehension of Bias

PerLamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucciand Major JJ.: The courts should be held to the highest standards of impartiality.Fairness and impartiality must be both subjectively present and objectivelydemonstrated to the informed and reasonable observer. The trial will be renderedunfair if the words or actions of the presiding judge give rise to a reasonableapprehension of bias to the informed and reasonable observer. Judges must beparticularly sensitive to the need not only to be fair but also to appear to allreasonable observers to be fair to all Canadians of every race, religion, nationalityand ethnic origin.

If actual or apprehended bias arises from a judges words or conduct,then the judge has exceeded his or her jurisdiction. This excess of jurisdiction canbe remedied by an application to the presiding judge for disqualification if theproceedings are still underway, or by appellate review of the judges decision. Areasonable apprehension of bias, if it arises, colours the entire trial proceedingsand cannot be cured by the correctness of the subsequent decision. The mere fact


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that the judge appears to make proper findings of credibility on certain issues orcomes to the correct result cannot alleviate the effects of a reasonableapprehension of bias arising from the judges other words or conduct. However, ifthe judges words or conduct, viewed in context, do not give rise to a reasonableapprehension of bias, the findings of the judge will not be tainted, no matter how

troubling the impugned words or actions may be.The basic interests of justice require that the appellate courts,

notwithstanding their deferential standard of review in examining factualdeterminations made by lower courts, including findings of credibility, retainsome scope to review that determination given the serious and sensitive issuesraised by an allegation of bias.

Impartiality can be described as a state of mind in which theadjudicator is disinterested in the outcome and is open to persuasion by theevidence 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 particularissues. Whether a decision-maker is impartial depends on whether the impugnedconduct gives rise to a reasonable apprehension of bias. Actual bias need not beestablished because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind.

The apprehension of bias must be a reasonable one held byreasonable and right-minded persons, applying themselves to the question andobtaining thereon the required information. The test is what would an informedperson, viewing the matter realistically and practically -- and having thought thematter through -- conclude. This test contains a two-fold objective element: the

person considering the alleged bias must be reasonable and the apprehension ofbias itself must also be reasonable in the circumstances of the case. Further thereasonable person must be an informed person, with knowledge of all the relevantcircumstances, including the traditions of integrity and impartiality that form apart of the background and apprised also of the fact that impartiality is one of theduties the judges swear to uphold. The reasonable person should also be taken tobe aware of the social reality that forms the background to a particular case, suchas societal awareness and acknowledgement of the prevalence of racism or genderbias in a particular community. The jurisprudence indicates that a real likelihoodor probability of bias must be demonstrated and that a mere suspicion is notenough. The existence of a reasonable apprehension of bias depends entirely onthe facts. The threshold for such a finding is high and the onus of demonstratingbias lies with the person who is alleging its existence. The test applies equally toall judges, regardless of their background, gender, race, ethnic origin, or any othercharacteristic.

The requirement for neutrality does not require judges to discounttheir life experiences. Whether the use of references to social context isappropriate in the circumstances and whether a reasonable apprehension of bias


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arises from particular statements depends on the facts. A very significantdifference exists between cases in which social context is used to ensure that thelaw evolves in keeping with changes in social reality and cases, such as this one,where social context is apparently being used to assist in determining an issue ofcredibility.

Consideration of whether the existence of anti-black racism in societyis a proper subject for judicial notice would be inappropriate here because anintervener and not the appellant put forward the argument with respect to judicialnotice.

The individualistic nature of a determination of credibility and itsdependence on intangibles such as demeanour and the manner of testifyingrequires the judge, as trier of fact, to be particularly careful and to appear to beneutral. When making findings of credibility a judge should avoid making anycomment that might suggest that the determination of credibility is based on

generalizations or stereotypes rather than on the specific demonstrations oftruthfulness or untrustworthiness that have come from the particular witnessduring the trial. At the commencement of their testimony all witnesses should betreated equally without regard to their race, religion, nationality, gender,occupation or other characteristics. It is only after an individual witness has beentested and assessed that findings of credibility can be made.

Situations where there is no evidence linking the generalization to theparticular witness might leave the judge open to allegations of bias on the basisthat the credibility of the individual witness was prejudged according tostereotypical generalizations. Although the particular generalization might be

well-founded, reasonable and informed people may perceive that the judge hasused this information as a basis for assessing credibility instead of making agenuine evaluation of the evidence of the particular witness credibility.

That judges should avoid making comments based on generalizationswhen assessing the credibility does not lead automatically to a conclusion ofreasonable apprehension of bias. In some limited circumstances, the commentsmay be appropriate.

The argument that the trial was rendered unfair for failure to complywith natural justice could not be accepted. Neither the police officer nor theCrown was on trial.

PerLa Forest, LHeureux-Dub, Gonthier and McLachlin JJ.:Judges, while they can never be neutral in the sense of being purely objective,must strive for impartiality. Their differing experiences appropriately assist intheir decision-making process so long as those experiences are relevant, are notbased on inappropriate stereotypes, and do not prevent a fair and justdetermination based on the facts in evidence.


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The apprehension of bias must be a reasonable one held byreasonable and right-minded persons, applying themselves to the question andobtaining thereon the required information. The reasonable person must know andunderstand the judicial process, the nature of judging and the community in whichthe alleged crime occurred. He or she demands that judges achieve impartiality

and will be properly influenced in their deliberations by their individualperspectives. Finally, the reasonable person expects judges to undertake an open-minded, carefully considered and dispassionately deliberate investigation of thecomplicated reality of each case before them.

Judicial inquiry into context provides the requisite background for theinterpretation and the application of the law. An understanding of the context orbackground essential to judging may be gained from testimony from expertwitnesses, from academic studies properly placed before the court, and from thejudges personal understanding and experience of the society in which the judgelives and works. This process of enlargement is a precondition of impartiality. A

reasonable person, far from being troubled by this process, would see it as animportant aid to judicial impartiality.

The reasonable person approaches the question of whether thereexists a reasonable apprehension of bias with a complex and contextualizedunderstanding of the issues in the case. He or she understands the impossibility ofjudicial neutrality but demands judicial impartiality. This person is cognizant ofthe racial dynamics in the local community, and, as a member of the Canadiancommunity, is supportive of the principles of equality. Before finding areasonable apprehension of bias, the reasonable person would require some clearevidence that the judge in question had improperly used his or her perspective inthe decision-making process; this flows from the presumption of impartiality ofthe judiciary. Awareness of the context within which a case occurred would notconstitute evidence that the judge was not approaching the case with an openmind fair to all parties; on the contrary, such awareness is consistent with thehighest tradition of judicial impartiality.

(3)Application of the Test

PerLa Forest, LHeureux-Dub, Gonthier and McLachlin JJ.: Theoral reasons at issue should be read in their entirety, and the impugned passagesshould be construed in light of the whole of the trial proceedings and in light of allother portions of the judgment. They indicated that the Youth Court Judgeapproached the case with an open mind, used her experience and knowledge ofthe community to achieve an understanding of the reality of the case, and appliedthe fundamental principle of proof beyond a reasonable doubt. Her commentswere based entirely on the case before her, were made after a consideration of theconflicting testimony of the two witnesses and in response to the Crownssubmissions, and were entirely supported by the evidence. In alerting herself tothe racial dynamic in the case, she was simply engaging in the process of


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contextualized judging which was entirely proper and conducive to a fair and justresolution of the case before her. Although the Judge did not make a finding ofracism, there was evidence on which such a finding could be made.

The impugned comments were not unfortunate, unnecessary, or close

to the line. They reflected an entirely appropriate recognition of the facts inevidence and of the context within which this case arose -- a context known to thejudge and to any well-informed member of the community.

PerCory and Iacobucci JJ.: The Youth Court Judge conducted anacceptable review of all the evidence before making the impugned comments.

The generalized remarks about a history of racial tension betweenpolice officers and visible minorities were not linked by the evidence to theactions of the police officer here. They were worrisome and came very close tothe line. Yet, however troubling when read individually, they were not made in

isolation and must all be read in the context of the whole proceeding, with anawareness of all the circumstances that a reasonable observer would be deemed toknow. A reasonable, informed person, aware of all the circumstances, would notconclude that they gave rise to a reasonable apprehension of bias or that theytainted her earlier findings of credibility. The high standard for a finding ofreasonable apprehension of bias was not met.

PerLamer C.J. and Sopinka and Major JJ. (dissenting): A fair trial isone that is based on the law and its outcome determined by the evidence, free ofbias, real or apprehended. Evidence showing propensity has been repeatedlyrejected. Trial judges must base their findings on the evidence before them.

Notwithstanding the opportunity to do so, no evidence was introduced showingthat this police officer was racist and that racism motivated his actions or that helied.

The Youth Court Judges statements were not simply a review of theevidence and her reasons for judgment in which she was relying on her lifeexperience. Even though a judges life experience is an important ingredient inthe ability to understanding human behaviour, to weighing the evidence and todetermining credibility, it is not a substitute for evidence. No evidence supportedthe conclusions that the Judge reached. Her comments fell into stereotyping thepolice officer. Judges, as arbiters of truth, cannot judge credibility based onirrelevant witness characteristics. All witnesses must be placed on equal footingbefore the court.

What the Judge actually intended by the impugned statements isirrelevant conjecture. Given the concern for both the fairness and the appearanceof fairness of the trial, the absence of evidence to support the judgment is anirreparable defect.


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3) FINAL ORDER OR DECISION

The nature of the subject Order or Decision, Dated June 10, 2010, as made by the HonorableMadam Justice Paulette Garnet, finally disposes of, or substantially decides the rights of theparties, and it ought to be treated as a final order or decision.

The subject action to enforce a lien is deemed to be discontinued according to the Mechanics'Lien Act, since Honorable Madame Justice Garnett did not Order a Continuanceaccording to Section 52.1(1)(b) ofMechanics' Lien Act.

The relevant section of the Mechanics' Lien Act is reproduced below:

Mechanics' Lien Act, R.S.N.B. 1973, c. M-6

52.1(1) An action to enforce a lien shall be deemed tobe discontinued one year after the action is commencedunless

(a) the action has been set down for trial, or

(b) an application has been made to a judge of TheCourt of Queens Bench of New Brunswick for an ordercontinuing the action and a copy of the notice of applicationhas been served on the defendant to the action

The dictionary at thefreedictionary.com provides a definition of discontinued at

(http://www.thefreedictionary.com/discontinued) as follows:

discontinue (dskn_tny)v. discontinued, discontinuing, discontinuesv.tr.1. To stop doing or providing (something); end or abandon: discontinued hervisits to the museum; discontinued ferry service to the island.2. To cease making or manufacturing: discontinued the sportscar in the 1960s.3. To cease subscribing to (a publication).4. Law To terminate (an action) by discontinuance.v.intr.

To come to an end. See Synonyms at stop.

Blacks Law Dictionary Second addition states:

Discontinuance. In Practice. The termination of an action, in consequence ofthe Plaintiffs omitting to continue the process or proceedings by properentries on the record. 3 Bl, Comm. 296; 1Tidd, Pr. 678; 2 Arch. Pr. K. B. 233.


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Hadwin v. Railway Co., 67S. C. 463, 45S. E. 1019; Gillespiev. V Bailey, 12 W.Va. 70, 29 AM. Rep. 45; Kennedy v. McNickle, 52 Miss. 467, 24 AM. Rep. 674

In practice, a discontinuance is a chasm or gap left by neglecting to enter acontinuance, even a defaulted action, by no means puts an end to it, and actionsmay always be brought forward. Taft v. Northern Transp. Co., 56 N. 416.

The cessation of the proceeding in a action where the plaintiff voluntarily puts anend to it, either by giving notice in writing to the Defendant before any step hasbeen taken in the action subsequent to the answer or at any other time or by orderof the court or judge.In practice, discontinuance and dismissal import the same things, viz., thatthe cause is sent out of court. Thurman v. James, 48 Mo. 235.

(PART II STATEMENT OF FACTS, number 6, supra) It is the belief of the IntendedAppellant (Plaintiff) Andre Murray, the question whether an order or decision is interlocutory

or final should be determined by looking at the order or decision itself. The nature of the order ordecision, as made, finally disposes of, or substantially decides the rights of the parties;consequentially it ought to be treated as a final order or decision.

In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.) Honorable Justice J.ERNEST DRAPEAU, J.A. stated the following regarding the approach to thedetermination of the threshold question of whether an order or decision is interlocutory orfinal:

Decision

[7] A preliminary question arises: Is Justice McLellans decisionfinal or interlocutory? If it is final, leave to appeal is not required.

[8] In this Province, the leading authority on point isBourque v.New Brunswick, Province of, Leger and Leger (1982), 41 N.B.R. (2d) 129(C.A.). In that case, Stratton J.A., as he then was, adopted the followingapproach to the determination of the threshold question at issue here, at pages133-34:

13 In my opinion, the question whether an order or decision isinterlocutory or final should be determined by looking at theorder or decision itself, and its character is not affected by thenature of the order or decision which could have been madehad a different result been reached. If the nature of the order ordecision as made finally disposes of, or substantially decidesthe rights of the parties, it ought to be treated as a final order or


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decision. If it does not, and the merits of the case remain to bedetermined, it is an interlocutory order or decision.

[9] The analytical framework articulated in Bourquehas withstood the test of time. See Lawson et al. v. Poirier et al. 1994 CanLII 6525(NB C.A.), (1994), 152 N.B.R. (2d) 394 (C.A.), per Ryan J.A. at paras. 9_13;Western Surety Co. v. National Bank of Canada 2001 NBCA 15 (CanLII), (2001),237 N.B.R. (2d) 346 (C.A.), at para. 27; Sinclaire v. Nicols and Gregg 1999 CanLII4070 (NB C.A.), (1999), 231 N.B.R. (2d) 60 (C.A); Caissie v. Senechal Estate et al.2000 CanLII 8754 (NB C.A.), (2000), 231 N.B.R. (2d) 198 (C.A.), per TurnbullJ.A.; and Dougs Recreation Centre Ltd. et al. v. Polaris Industries Ltd. 2001CanLII 19446 (NB C.A.), (2001), 237 N.B.R. (2d) 190 (C.A.), per Robertson J.A.The question whether Mr. MacArthur must obtain leave to appeal is to bedetermined within that analytical framework.

The transcript of the subject Motion, to grant a Continuance of the mechanics Lien Action, heardon the 10th day of June, 2010 at Fredericton, New Brunswick, transcribed by Blackwell CourtReporting, 496 Bryson Road, Nasonworth, NB, E3B 8E9, illustrates, the Honorable MadamJustice Paulette Garnets assertion that the nature of the order or decision as made finally disposesof, or substantially decides the rights of the parties, beginning at page 12, line 20:

THE COURT: Im not quashing a lien. You are asking me to give you an extension. Imnot quashing anything. You are asking me to exercise my discretion to give you anextension of time

MR. MURRAY: Yes.

THE COURT:... and I am not doing that.

MR. MURRAY: Madam Justice, if I do not have the extension of time then the lien isextinguished because my understanding of the Mechanics Lien Act is that within oneyear if the action is not set down for trial

THE COURT: And it hasnt been.

MR. MURRAY: yes, or if there has not been a continuance granted then themechanics lien is, is, is done; its no longer cannot move forward any more. So, in

effect, my lien would be quashed. What I am requesting

THE COURT: In effect, I am not giving you an extension on this matter. No extension. Itis a waste of this courts time. It is a waste of money. It is a waste of everything. TheRoyal bank of Canada has a priority lien against this property, and you are going to getzero from the property. You can sue Ms. Danielski, but nothing is going to come out ofthe property to you. And it makes no sense to give you the extension, and I am not givingit.


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MR. MURRAY: Your Honor

THE COURT: The end.

MR. MURRAY: Your Honor, may I speak

THE COURT: The end.

(COURT ADJOURNED JUNE 10, 2010)

In the absence of an Order for Continuance, the Decision ofHonorable Madame JusticeGarnett finally disposes of, or substantially decides the rights of the subject parties, and it oughtto be treated as a final order or decision.

The decision of Honorable Madame Justice Garnett, hearing Date of June 10, 2010, tonot grant, as requested, an Order of Continuance pursuant to Section 52.1(1)(b) ofMechanics' Lien Act, finally disposes of, or substantially decides the rights of the partiesto the action. Clearly, the merits of all evidence which had been appropriately filed withCourt of Queens Bench, furthermore, for consideration by the Learned Judge hearing thematter, moreover, evidence of which was intended to be used in the argument andpleadings of the Plaintiff Andre Murray has been denied proper and fair process.Honorable Madame Justice Garnett did not permit arguments or pleadings to be made onrecord. Referencing Section 52.1(1)(b) ofMechanics' Lien Act, as the following clearlystates any subsequent Court Decision to not grant any requested continuance of the MechanicsLien action, is considered to finally dispose of, or substantially decide the rights of the parties,and consequentially this decision ought to be treated as a final order or decision

Should this Honorable Appellate Court, in the process of rendering a decision, determinethat the lower Court decision of Honorable Madame Justice Garnett is interlocutory, theIntended Appellant Andre Murray shall seek to provide further legal reason to grant leaveto appeal.

Leave to Appeal required

In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.) Supra, HonorableJustice J. ERNEST DRAPEAU, J.A. offered the following, when considering whether togrant leave to appeal from a interlocutory Order or Decision:

[11] Rule 62.03(4) provides that leave to appeal shall not begranted unless:

(a) there is a conflicting decision by another judge or courtupon a question involved in the proposed appeal and, inthe opinion of the judge hearing the motion, it is desirablethat leave to appeal be granted,


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(b) the judge hearing the motion doubts the correctness of the

order or decision in question, or

(c) the judge hearing the motion considers that the appealinvolves matters of such importance that leave to appealshould be granted.

[14] Neither this Court nor the Supreme Court of Canada hasconsidered the questions of law raised by Mr. MacArthur. While I am notpersuaded that Justice McLellans decision is wrong, I do entertain a doubtof the kind contemplated by Rule 62.03(4)(b). That being so, does leave toappeal automatically follow?

[15] In Breen v. MacIntosh, [2001] N.B.J. No. 226 (C.A.), atpara. 6, I expressed the view that satisfaction of one or more of theconditions found in Rule 62.03(4) did not, by itself, compel the issuance ofan order granting leave to appeal. I went on to add that Rule 62.03(4) vestsin the judge hearing the motion a residual discretion to deny leave evenwhere one or more of the preconditions have been satisfied. I remainfirmly committed to that view.

[16] The meaning and effect of Rule 62.03(4) must be ascertainedon the basis of its wording and theRules of Court as a whole. Needless tosay, the Rule should be interpreted in a commonsensical manner and with aview to promoting the most efficient use of judicial resources. See Smith v.Agnew 2001 NBCA 83 (CanLII), (2001), 240 N.B.R. (2d) 63 (C.A.), atpara. 35.

[17] While it is true that clauses (a) and (c) feature an explicitpreservation of judicial discretion and clause (b) does not, the wording ofthe opening phrase in Rule 62.03(4) suggests that all three clauses are mereconditions precedent to the judges jurisdiction to grant leave to appeal. TheRules opening words are: Leave to appeal shall not be granted unless...,not Leave to appeal shall be granted....


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[18] Clauses (a) and (c) of Rule 57.02(4) of the Newfoundland &Labrador Rules of Procedure are identical, for all intents and purposes, toclauses (a) and (c) of our Rule. Rule 57.02(4) of the Newfoundland &Labrador Rules of Procedure reads as follows:

(4) Leave to appeal an interlocutory order may be granted where

(a) there is a conflicting decision by another judge orcourt upon a question involved in the proposedappeal and, in the opinion of the Court, it isdesirable that leave to appeal be granted,

(b) the Court doubts the correctness of the order in

question,

(c) the Court considers that the appeal involves mattersof such importance that leave to appeal should begranted, or

(d) the Court considers that the nature of the issue issuch that any appeal on that issue following final

judgment would be of no practical effect.

[19] It will be seen that although clauses (a) and (c) of theNewfoundland & Labrador Rule feature, like the corresponding clauses inour Rule, a preservation of judicial discretion, the opening phrase provides

that [l]eave to appeal an interlocutory order may be granted where...[Emphasis added.] Obviously, the drafters of the Newfoundland & LabradorRule did not see any incompatibility between the wording of clauses (a) and(c) and a general judicial discretion to deny leave. In Business DevelopmentBank of Canada v. White Ottenheimer & Baker2002 NFCA 10 (CanLII),(2002), 209 Nfld. & P.E.I.R. 167 (C.A.), Cameron J.A., who delivered theCourts reasons for judgment, observed, at para. 2, that even if one or moreof the factors are present, the Court still has the discretion to refuse to hear an


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appeal prior to the completion of the trial. See, as well, White v. True NorthSprings Ltd., 2002 NLCA 65 (CanLII), 2002 NLCA 65; [2002] N.J. No. 282(C.A.), online: QL (NJ).

[20] Rule 62.03(4) cannot be interpreted in isolation. As noted, its

meaning and effect must be ascertained having regard to the Rules of Courtas a whole. Rules 1.03(2) and 62.21(6) play an important role in theinterpretative exercise required here. Rule 1.03(2) directs courts to liberallyconstrue the rules to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits. Rule 62.21(6) provides that[a]n interlocutory order or decision from which there has been no appealshall not operate to prevent the Court of Appeal from rendering any decisionor making any order.

[21] Interlocutory orders and decisions vary greatly in terms of theirrelative importance within the litigation process and todays contestedinterlocutory order or decision may well be entirely moot tomorrow. One caneasily imagine a situation where the judge hearing the motion might doubtthe correctness of the impugned interlocutory order or decision but concludethat granting leave to appeal would not be conducive to the just, leastexpensive and most expeditious determination of the proceedings on itsmerits. Indeed, circumstances may arise where granting leave to appealbecause of some doubt as to the correctness of the interlocutory order ordecision might well work against the best interests of the administration ofjustice.

[22] In my view, Rule 62.03(4) does not obligate the judge hearingthe motion to grant leave just because one or more of the conditionscontained in clauses (a), (b) and (c) have been met. The judge retains aresidual discretion to deny leave where such an outcome would be in the bestinterests of justice. Any other interpretation would fail to give effect to thewording of the opening phrase in Rule 62.03(4) and the significant safeguardprovided by Rule 62.21(6). Moreover, it would be unfaithful to Rule 1.03(2)and, insofar as clause (b) is concerned, incompatible with common sense. Iwould add that if the drafters of Rule 62.03(4) had intended to strip the judgeof any residual discretion in the exercise of his or her jurisdiction under Rule62.03(4), they could and likely would have employed clear wording to thatend.


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[23] Factors such as the relative importance of the interlocutoryorder or decision in the litigation process and the repercussions of grantingleave come into play in the exercise of that residual discretion. As CameronJ.A. noted inBusiness Development Bank of Canada v. White Ottenheimer& Baker, at para. 2, the matter always involves the weighing of interference,

by the appeal process, with the timely administration of justice against theinterest of the appellant in having the matter resolved immediately.

[24] Justice McLellans decision appears to be quite significant interms of its likely influence on the conduct of the action in the case at hand.As well, the action is not entered for trial; in fact, the discovery process isnot completed. Finally, there is no evidence that an order granting leave toappeal might cause prejudice of a serious nature to any party. The cumulativeeffect of these considerations leads me to conclude that leave should be

granted pursuant to Rule 62.03(4)(b).

Disposition

[25] The motion for leave to appeal is allowed, with costs of $750payable by the plaintiff, S. Bransfield Limited, to the defendant, GordonMacArthur.

Let me address each of the criteria for Leave to appeal to be granted as

follows:

A1. Leave to appeal shall not be granted unless Rule 62.03(4) (a) there is aconflicting decision by another judge or court upon a question involved inthe proposed appeal and, in the opinion of the judge hearing the motion, itis desirable that leave to appeal be granted,

B2. Leave to appeal shall not be granted unless Rule 62.03(4) (b) the judge hearingthe motion doubts the correctness of the order or decision in question.

The impugned decision in question was based on a misapprehension of the facts, thepivotal information the Court relied on was hearsay unsubstantiated information which


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the criterion of reliability had not been met, the Court made the subject decision based onarguments not advanced by either party and the Court did not allow the Plaintiff toaddress the issues before the Court.

When the Honorable Appellant Court is assessing allegations of the denial of natural

justice or procedural fairness, and if the Honorable Appellant Court concludes that therehas been a breach of natural justice or procedural fairness, the Honorable Appellant Courtshould grant leave to appeal to set aside the decision of the Lower Court. Where a breachof fairness is found to result from a reasonable apprehension of bias, the standard isparticularly demanding, especially where, as here, the rights of Intended Appellant(Plaintiff) Andre Murray in the proceedings before the Court, are at stake.

Addressing the consequences of a breach of procedural fairness, denial of a right to a fairhearing should always render a decision invalid, whether or not it may appear to areviewing Honorable Appellant Court that the hearing would likely have resulted in adifferent decision. The right to a fair hearing must be regarded as an independent,

unqualified right which finds its essential justification in the sense of procedural justicewhich any person affected by a judicial decision is entitled to have.

The learned Trial Judge has made mistake, clearly against reason, evidence and againstestablished law during the subject hearing of a motion for a continuance of a MechanicsLien Action and as a consequence Intended Appellant (Plaintiff) Andre Murray did notget a fair trial.

Impartiality is a principle of justice holding that decisions should be based on objectivecriteria, rather than on the basis of bias, prejudice, or preferring the benefit to one personover another for improper reasons.

The learned trial judge showed bias, and prejudice in deciding the matter before theCourt. The learned trial judge denied Intended Appellant (Plaintiff) Andre Murray achance to tell his side of the matter and add information critical to the learned trial judgemaking a just and fair decision on the merits of the case. Intended Appellant (Plaintiff)Andre Murray truly did not get a fair hearing.

Consequently, the error made by the learned Trial judge, which was the presumption thatthe tentative sale of the Mortgage had already concluded, played an essential role in thereasoning process that resulted in a unfair biased decision of the Court.

The learned trial judge misapprehended the material presented to the Court by excludingall submitted documents and instead requesting information not offered by either party,prejudice deciding what course the hearing was to take and thereby demonstrating areasonable apprehension of bias and therefore committing an error of law.

Based upon an examination of the trial transcript, the learned trial judge was mistaken asto the reasoning that there was no money left in the property to satisfy the Mechanics


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Lien and that this error played an essential part in her reasoning that there was point incontinuing the mechanics lien Action resulting in a wrong decision of the Court.

Further argument follows in section 4-9 of the issues section of this submission, toillustrate the incorrectness of the subject Decision of the Court, dated the 10 th of June

2010.C

Leave to appeal shall not be granted unless Rule 62.03(4) (c) the judge hearing themotion considers that the appeal involves matters of such importance that leave toappeal should be granted.

After the Plaintiff filed the Claim for Lien and Notice of Action, the Defendant hascreated the situation where, a without Notice to the Plaintiff Mortgage sale of the subjectproperty took place July 16, 2009.

The Plaintiff was caused to be evicted, by Order of the Court, from a ex parte hearingOctober 20th, 2009, held in Moncton Trial Division, which caused the Necessary ContractDocuments required by the Plaintiff to pursue the Mechanics Lien Action to beinaccessible, hence the delay in moving the Mechanics Lien Action foreword.

The Plaintiff has pursued remedy by way of motion to the Court of Queens Bench TrialDivision, Judicial District of Moncton, to regain access to 29 Marshall Street, attemptingto have access to the necessary documents granted by the Moncton Trial Division Court,but these actions have been frustrated by the Solicitors requesting many adjournmentsunduly delaying the Plaintiffs efforts.

Because of the actions by the Defendant and those working with her and on her behalf,the plaintiff in this matter will lose the opportunity for compensation of a $80,000 Lienon Property. The prospective purchasing company who had successfully bid at aMortgage Auction, held July 16, 2009 has only made a $8,000 deposit on the subjectproperty, which the sale has not yet closed, who could back out at any time, has alsosigned a contract Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE,dated July 16, 2009, regarding the very same property, which stated the purchaseragrees to pay any outstanding ..Liens,, at paragraph 10 reproduced in full below:

10. All real property taxes, water rates. liens, charges and/or localassessments, if any, shall be for the account of the purchaser and thepurchaser agrees to pay any outstanding real property taxes, water rates,liens, charges and /or local assessments in full on the date of delivery ofthe Deed to such purchaser.

The loss of the Lien means a loss of opportunity to have the tentative purchaser pay theoutstanding Lien.


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If the decision stands the Plaintiff will have to pursue the Defendant Betty Rose Danielskiwho lives on Toronto Ontario personally for breach of contract with a minimal chance ofever receiving just compensation.

The corresponding section of the Mechanics' Lien Act is reproduced below.Mechanics' Lien Act, R.S.N.B. 1973, c. M-6

47 Where a claimant fails to establish a valid lien, hemay nevertheless recover a personal judgment against anyparty to the action for such sum as may appear to be dueto him, and that he might recover in an action against such party.

For the Intended Appellant Andre Murray to recover a personal judgment, by pursuingBetty Rose Danielski in Contract, will most likely be a completely separate action andmost likely be a futile endeavour.

The Intended Appellant Andre Murray considers that the subject appeal involves mattersof importance, that leave to appeal should be granted, the loss of this opportunity torecover a $80,000 investment by the Intended Appellant Andre Murray, should not havebeen decided under the circumstances that as it was.

The learned Trial Judge showed bias, and prejudice in deciding the matter presentedbefore the Court. The learned trial judge denied Intended Appellant (Plaintiff) AndreMurray a chance to tell his side of the matter and add information critical to the learnedtrial judge making a just and fair decision on the merits of the case. Intended Appellant(Plaintiff) Andre Murray truly did not get a fair hearing.

This decision, if allowed to stand, brings the Administration of Justice into Disrepute.The phrase bring the administration of justice into disrepute must be understood in thelong term sense of maintaining the integrity of, and public confidence in, the justicesystem. One must ask whether the overall repute of the justice system, viewed in the longterm, will be adversely affected by the results of this ruling.

Also, one must ask whether a reasonable person, informed of all relevant circumstancesin the case, aware of all the submitted material and also aware of the relevant informationthat was denied to be heard by the Learned Trial Judge, would conclude, that thedecision, if allowed to stand would bring the administration of justice into disrepute.

The following definition of fair is found at mirrriam Webster online at the following:address: http://www.merriam-webster.com/dictionary/fair

Main Entry: 1fairPronunciation: \fer\Function: adjective


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Etymology: Middle Englishfager, fair, from Old Englishfger; akin to Old HighGermanfagarbeautifulDate: before 12th century

6 a: marked by impartiality and honesty : free from self-interest, prejudice, or

favoritism b (1): conforming with theestablished rules : allowed (2): consonant with merit or importance : due c: open to legitimate pursuit, attack, or ridicule

The Meriam Webster Online Dictionary defines fair as an action marked by impartialityand honesty. It involves acting without prejudice, favoritism or self interest. Fairness isthen a cardinal principal that a civilized society should advocate.

Natural justice requires that administrators adhere to a fair decision-making procedure. Thereare two primary rules of natural justice. The hearing rule is that people who will be affectedby a proposed decision must be given an opportunity to express their views to the decisionmaker. The bias rule is that the decision maker must be impartial and must display noreasonable apprehension of bias. Justice must not only be done, but must be seen to bedone.

Bias of the decision maker can be real or merely perceived. The test was first stated inCommittee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R.369:

...the apprehension of bias must be a reasonable one, held by reasonable andright minded persons, applying themselves to the question and obtaining thereonthe required information. . . . [The] test is "what would an informed person,viewing the matter realistically and practically and having thought the matterthrough conclude."

p. 394

In Canadian law, a reasonable apprehension of bias is a legal standard for disqualifyingjudges and administrative decision makers for bias.

In the struggle toward a just society, there should be concerted efforts to guard againstany form of abuse as this would constitute a violation of a right to a fair trial. Theadministration of justice would be brought into disrepute if this decision is allowed tostand. The right to fair trial is seen as an essential right in all communities respecting the

rule of law. A fair trial requires a competent, neutral and impartial Court, essential tomaintaining the integrity of, and public confidence in, the justice system.Publicconfidence of Court can only be maintained when the public can see that the decisionmade by primary decision makers, that affect individuals and organizations are the rightones.


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-=-=-=-=-=-=-=-=-=-=-=-===

4) Rule 1.03 Interpretation

Black's Law Dictionary (8th ed. 2004), defines Justice as follows:

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

The fair and proper administration of Justice in New Brunswick, require the Court ofQueens Bench Trial Division to apply the Rules of Court, for a determination of everyproceeding on its merits. Dismissing a person's Motion for a Continuance causes seriousprejudice to any litigant and this power should be exercised with great caution and, wherecircumstances permit, only after having heard the matter before the Court in its entirety.

Rule 1.02, of the New Brunswick Rules of Court is reproduced as follows:

CITATION, APPLICATIONAND INTERPRETATION

1.02 ApplicationThese rules apply to all proceedings in the Court ofQueens Bench and the Court of Appeal unless some otherprocedure is provided under an Act.

A determination should be keeping with the general direction contained in Rule 1.03(2)to secure the just, least expensive and most expeditious determination of every

proceeding on its merits, Rule 1.03(2), of the New Brunswick Rules of Court is reproduced asfollows:

CITATION, APPLICATIONAND INTERPRETATION1.03 Interpretation

1.03(2) These rules shall be liberally construed to securethe just, least expensive and most expeditious determinationof every proceeding on its merits.

The learned trial judge, committed an error in law, in not keeping with the general

direction expressed in the New Brunswick Rules of court, Rule 1.03(2) to secure thejust, least expensive and most expeditious determination of every proceeding on itsmerits, by not taking into consideration the prejudice caused against the (Plaintiff in thatmatter) INTENDED APPELLANT Andre Murray by not rendering a Judgment on themerits presented and had yet to be presented before the Court. The learned trial judge,prejudiced the hearing by raising predefined issues, not argued or raised by either party.The learned trial judge did not acknowledge, taking into consideration, in contemplationof the Courts decision, all the pleadings and records filed as meritorious and or


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substantive, by both parties to the Motion, for Orders including that pursuant to section52.1 (1) (b) of the Mechanics' Lien Act, the mechanics Lien Action be Continued untilOctober 21, 2010 or further Order of this Court.

It is my understanding that Judgment on the merits is a judgment made after

consideration of the substantive, as distinguished from procedural issues in a case.Further to this point lets us look at definition of Merits.

Black's Law Dictionary (8th ed. 2004) defines merits as the following:

MERITSmerits. 1. The elements or grounds of a claim or defense; the substantive considerations to betaken into account in deciding a case, as opposed to extraneous or technical points, esp. ofprocedure .2.EQUITY(3) .

The rules of Court 1.03(2) states These rules shall be liberally construed, so let us defineConstrued.

Black's Law Dictionary (8th ed. 2004) defines Construe as follows:

CONSTRUEconstrue (kn-stroo), vb. To analyze and explain the meaning of (a sentence orpassage) .

let us define Just.

Black's Law Dictionary (8th ed. 2004) defines Just as follows:

JUSTjust,adj. Legally right; lawful; equitable

When viewed in this language the Rule 1.03(2) reads: These rules shall be liberallyconstrued(analyzed and the meaning of explained ) to secure thejust (Legally right; lawful; equitable), leastexpensive and most expeditious determination of every proceeding on itsmerits (The elements orgrounds of a claim or defense; the substantive considerations to be taken into account in deciding acase, as opposed to extraneous or technical points, esp. of procedure).

Furthermore, Merriam-webster.com defines merit at the following address

(http://mw4.merriam-webster.com/dictionary/merits) as follows:

Main Entry: 1meritPronunciation: \?mer_?t, ?me_r?t\Function: nounEtymology: Middle English, from Anglo_French merite, from Latin meritum,from neuter of meritus, past participle of mere_re to deserve, earn; akin to Greekmeiresthai to receive as one's portion, meros part


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Date: 14th century

1 a obsolete : reward or punishment due b : the qualities or actions that constitutethe basis of one's deserts c : a praiseworthy quality : virtue d : character orconduct deserving reward, honor, or esteem; also : achievement

2 : spiritual credit held to be earned by performance of righteous acts and toensure future benefits3 a plural : the substance of a legal case apart from matters of jurisdiction,procedure, or form b : individual significance or justification

Furthermore, on merits is defined by legal-dictionary.com at the following address:http://legal-dictionary.thefreedictionary.com/on+the+merits on the merits

on the merits

on the merits adj. referring to a judgment, decision or ruling of a court basedupon the facts presented in evidence and the law applied to that evidence. A judgedecides a case "on the merits" when he/she bases the decision on the fundamentalissues and considers technical and procedural defenses as either inconsequentialor overcome. Example: An attorney is two days late in filing a set of legal pointsand authorities in opposition to a motion to dismiss. Rather than dismiss the casebased on this technical procedural deficiency, the judge considers the case "on themerits" as if this mistake had not occurred.

(PART II STATEMENT OF FACTS, number 7, supra) The learned trial judge erred inlaw in not keeping with the general direction as found expressed in the New BrunswickRules of court Rule 1.03 (2) to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits rather than reviewing and or examiningevidentiary affidavit evidence material and or considering argument from the opposingparties to the Motion the Honorable Justice Adjourned the Hearing of the Motion for 15minutes (which became one hour) for the purposes as instructed and as directed by theHonorable Justice that the Solicitor for the Defendant shall leave the Court room tosearch by telephone for the answers to the Madame Justices leading substantivequestions. Note; up and until this point in the Hearing, Madam Justice continued todominate the Hearing as all submissions on record were those of Madam Justice.Arguments from Plaintiffs or Defendants were not being allowed. The INTENDEDAPPELLANT Andre Murray (Plaintiff in that matter) stood perplexed at such an

impugned contention that a Defendant to an action could possibly be directed totelephone two primary opponents to the success of the INTENDED APPELLANT AndreMurray (Plaintiff in that matter) furthermore, the incredulous and or implausiblepossibility that the return of the aforementioned from the adjournment and the probabilityof the resultant telephone enquiries being unbiased and or independent meritoriousanswers. The INTENDED APPELLANT (Plaintiff in that matter) stood before theaforesaid Honorable Court following the adjournment, further, The INTENDEDAPPELLANT listened as the Honorable Madam Justice subsequently, accepted the


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hearsay submissions of the returning Solicitor for the Defendant. The INTENDEDAPPELLANT trusts that this irregularity complained of mentioned and found here withinis objectionable to such a degree as to be self evident the environment was being set forunfair Hearing. As mentioned, the meritorious quality or lack thereof, regarding hearsaymust not be understated and consequently cannot be seriously considered as a means of

securing a just determination of any matter.

(PART II STATEMENT OF FACTS, number 8, supra) The learned trial judge committedan error in law in not keeping with the general direction expressed in the New BrunswickRules of court Rule 1.03(2) to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits in not taking into consideration theprejudice to the (Plaintiff in that matter) INTENDED APPELLANT Andre Murray byraising issues not argued by either party and conversely the learned trial judge avoidedconsidering all pleadings filed as meritorious and or substantive by both parties to the Motion fororders including that pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, themechanics Lien Action be continued until October 21, 2010 or further Order of this Court Continuance .

(PART II STATEMENT OF FACTS, number 9, supra) The learned trial judge committedan error in law in not keeping with the general direction expressed in the New BrunswickRules of court Rule 1.03(2) to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits in that the Madame Justice in hearing thePlaintiffs AMENDED NOTICE OF MOTION (FORM 37A) Filed with COURT OF QUEENSBENCH FREDERICTIN TRIAL DIVISION, further, was received and filed Stamped /DatedMAY 31 2010, furthermore, upon the hearing of the subject motion the order sought as providedand listed as:

a) That, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, the

mechanics Lien Action be continued until October 21, 2010 or further Order ofthis Court. The Trial judge instead appeared and did entirely neglect to addressthe aforementioned requested order and instead addressed only the next order aslisted

b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rulesof Court,May it Please this Honorable Court; INTENDED APPELLANT Andre Murray haspurchased a CD disk of the Court Hearing transcript and has commissioned a writtentranscript.Subsequentially, after listening to the aforementioned CD disk Transcript as provided byCourt of Queens Bench, Fredericton Client Services, further, after a dozen listeningreviews of said CD disk Transcript it is realized that INTENDED APPELLANT AndreMurray is not permitted to speak or counter claim as Madame Justice dominates theentire Hearing, speaking on behalf of both the Plaintiff and Defendant to the Motion.At the end of the first Hearing 9 minutes, and after the one hour adjournment, as MadameJustice instructed the Solicitor for the Defendant to gather hearsay information for whichMadam Justice announced in advance of receiving the answers to her verbalizedquestions, that if the answers are, as Madam Justice expected, than, Madam Justice wouldconsequentially rely on the hearsay answers returned to her following the adjournment


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and did in fact, render a decision of Motion Dismissed duration of second hearing, wasnothing more than 11 minutes.NOTE:INTENDED APPELLANT Andre Murray is able near the end of the Hearing to brieflyutter words to the effect that he requires his requested Order ofpursuant to section 52.1(1) (b) of the Mechanics Lien Act a Continuance of the Action. Unfortunately, Madame Justice neglected to reply to these pointed assertions of intended AppellantAndre Murray, instead Madame Justice insisted on addressing only the matter ofExtension of time pursuant to Rule 3.02.

The learned trial judge erred in law in not keeping with the general direction contained inthe New Brunswick Rules of court Rule 1.03(2) to secure the just, least expensive andmost expeditious determination of every proceeding on its merits by instead pursuingleast expensive and most expeditious determination of the proceeding, to the prejudice ofthe Plaintiff INTENDED APPELLANT Andre Murray, without balancing the need tosecure a fair, just and balanced determination of this subject proceeding, based on theMERITS.

The Plaintiff has proceeded, through great hardship to follow the Rules of Court and theMechanics Lien Act requirements, to bring forward this Mechanics Lien Action to securea investment in the Marshall Street Property. The Plaintiff has met all the required filingtimelines (as explained at length in section 7 to 10, page 23 to 32 of the Court of QueensBench, (file number F/C/104/09) Plaintiffs submission) and justly seeks a fair opportunityto present the documented evidence to the Court for consideration so the matter may befinally decided on its merits.

The transcript of the subject Motion, to grant a Continuance of the Mechanics LienAction, heard on the 10th day of June, 2010 at Fredericton, New Brunswick, transcribed

by Blackwell Court Reporting, 496 Bryson Road, Nasonworth, NB, E3B 8E9, illustrates,the Honorable Madam Justice Paulette Garnets assertion suggests that the actualcomplete circumstance of the matter before the court, where on no consequence in theCourts decision, beginning at page 11, line 12:

THE COURT: ..Okay. Now, the Mortgage takes priority over the lien with respectto all monies advanced before the lien was filed, which means that the plaintiff, if hewere to succeed in his claim for lien, would have $23, maybe. Maybe not, but maybe.Therefore, it is a complete waste of time to this claim for lien.

Now I will tell you, Mr. Murray, that you can bring an action personally againstthe defendant, Betty Rose Danielski, but your claim for lien is worth nothing.

MR. MURRAY: May I address that, Madame Justice? What Id like to point out is thatthe mortgage sale that took place in July had a prospective purchaser who paid a depositfor purchasing the property, and the sale has not closed. So the sale is not final. The, theprospective purchaser

THE COURT: It doesnt matter, Mr. Murray. No matter what happens to this propertythe Royal Banks claim is in priority to yours.


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MR. MURRAY: What, what

THE COURT: It is a priority claim. The mortgage The Royal Bank will be paid beforeyou no matter what.

MR. MURRAY: What Id like to point out, Your Honor, though is that since the

mortgage since the transfer of title has not happened yet and the sale has not happenedyet, we cannot consider it a done deal because the prospective purchaser may back out onthat deal. The property may be put back up for option or for auction, and the salemight happen a second time for a much higher value which means that my, my lien maybe covered. Theres a potential there and it would be an extreme prejudice to the Plaintiffin this matter to quash a lien that potentially could still be

THE COURT: Im not quashing a lien. You are asking me to give you an extension. Imnot quashing anything. You are asking me to exercise my discretion to give you anextension of time

MR. MURRAY: Yes.

THE COURT:... and I am not doing that.

MR. MURRAY: Madam Justice, if I do not have the extension of time then the lien isextinguished because my understanding of the Mechanics Lien Act is that within oneyear if the action is not set down for trial

THE COURT: And it hasnt been.

MR. MURRAY: yes, or if there has not been a continuance granted then themechanics lien is, is, is done; its no longer cannot move forward any more. So, ineffect, my lien would be quashed. What I am requesting

THE COURT: In effect, I am not giving you an extension on this matter. No extension. Itis a waste of this courts time. It is a waste of money. It is a waste of everything. TheRoyal bank of Canada has a priority lien against this property, and you are going to getzero from the property. You can sue Ms. Danielski, but nothing is going to come out ofthe property to you. And it makes no sense to give you the extension, and I am not givingit.

MR. MURRAY: Your Honor

THE COURT: The end.

MR. MURRAY: Your Honor, may I speak

THE COURT: The end.

(COURT ADJOURNED JUNE 10, 2010)

Furthermore The Court should have been aware of the unusual circumstancessurrounding the subject mechanics Lien action. In the submitted transcript of the subject


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Motion, to grant a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010at Fredericton, New Brunswick, on page 2, line 16:

THE COURT: Let the record show that I have read all the documents that havebeen filed,.

Some of the circumstances, surrounding the unusual delay in moving the MechanicsLien Action forward where expressed below in a letter to E. Thomas Christie, QC Solicitorfor Betty Rose Danielski Dated May 31, 2010 which was included with the Record on MotionTAB 33 submitted to the Court of Queens Bench Trial Division, Judicial District of Frederictonas follows:

Court File Number: F/C/104/09

IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON

BETWEEN:

ANDRE MURRAY

Plaintiff,

-and-

BETTY ROSE DANIELSKI

Defendant,

May 31, 2010

TO: E. Thomas Christie, QCCHRISTIE LAW OFFICESuite 306, 212 Queen StreetFredericton, New BrunswickCanada E3B 1A8Tel: (506) 472 2090Fax: (506) 472 2091E-Mail: [email protected]


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Solicitor forBETTY ROSE DANIELSKI

Also

TO: BETTY ROSE DANIELSKI

Apt 603166 Carlton StreetToronto, Ont.M5A 2K5

Dear E. Thomas Christie,

Regarding Andre Murray v. Betty Rose Danielski

Many documents required to resolve the subject Mechanics' Lien Action regardingAndre Murray v. Betty Rose Danielski are located in or on the premises known as civic

address 29 Marshall Street, Fredericton, New Brunswick.Please be advised October 23, 2009, residential Tenant Andre Murray vacated theproperty pursuant to a Court Order issued from Court of Queens Bench, Moncton TrialDivision of October 20, 2009. Furthermore, the Court issued Orders to Vacate resultedfrom hearing of the Notice of Motion requested by Solicitor George H. LeBlanc actingon behalf of Plaintiffs Royal bank of Canada and 501376 N.B. Ltd, a body corporate.

Andr Murray has made his position abundantly clear to Solicitor George H. LeBlanc,that documents necessary to defend his position as the legitimate Residential Tenant,further, that multiple legal documents relative to establishing Andr Murrays legalstanding before the Honorable Courts of Queens Bench, New Brunswick, are beingwithheld by Solicitor George H. LeBlancs denial of access, to 29 Marshall Street

Fredericton New Brunswick, as has been requested in writing and verbally, both inperson and by telephone conversation between Andr Murray and Solicitor George H.LeBlanc.

Regrettably, to date, Andre Murray must report that George H. LeBlanc, acting Solicitorfor the Royal Bank of Canada, further, which financial institution is currently holding aninvestment interest in the subject property 29 Marshall Street Fredericton NewBrunswick by way of a Mortgagee Deed, appear disagreeable and non responsive to themany attempts made by vacated Residential Tenant Andre Murray and his attempts toregain access to subject documents currently located at the 29 Marshall Street,Fredericton, New Brunswick property.

Furthermore, please consider that to date Residential Tenant Andre Murray has beenfrustrated by the numerous Notices of Motion and the subsequent relative Court Files ofMotions for Orders of Adjournment of same Court Actions brought in the first place bySolicitor George H. Leblanc, acting for Royal Bank of Canada, the Mortgagee of subjectproperty.

Kindly consider that since the October 20th, 2009, Ex Parte Hearing of a Royal Bank ofCanada Motion to the Honorable Courts requesting Orders to vacate Residential Tenantfrom 29 Marshall Street, Fredericton, furthermore, sin