Court of Appeal File Number: 164-12-CA (Court File Number: F/M/27/12) IN THE COURT OF APPEAL OF NEW BRUNSWICK BETWEEN:

ANDRE MURRAY INTENDED APPELLANT (Applicant) -andROYAL BANK OF CANADA, and others, INTENDED RESPONDENTS (Respondents) PRE HEARING BRIEF LEAVE TO APPEAL Filed by Self Represented INTENDED APPELLANT ANDRE MURRAY
Andre Murray Applicant 103 Huntingdon Circle Fredericton, N.B. E3B 0M1 andremurraynow@gmail.c om Denis G. Thriault Legal Services - Litigation Office of the Attorney General Phone : 506-444-5597 Fax : 506-453-3275 E-mail : denis.theriault@gnb.ca Solicitor representing Respondent HON. MARIE-CLAUDE BLAIS Q.C., Minister and Attorney General ROYAL BANK OF CANADA 644 Main Street, Suite 500, Moncton, N.B. E1C 1E2 Telephone: 506 856 9800 Fax: 506 856 8150

Respondent Hugh J. Cameron HON. Robert Douglas Solicitor for the Respondent Nicholson 501376 N.B. Ltd., a body Minister of Justice and corporate, Attorney General of Suite 600, Frederick Square Canada 77 Westmorland Street P.O. Box 730 284 Wellington Street Fredericton, NB, Canada Ottawa, Ontario K1A 0H8 George H. LeBlanc Telephone: (613) 957-4222 Cox and Palmer E3B 5B4 Fax : (613) 954-0811 Solicitor for the Respondent Telephone: 506.443.0120 Fax: 506.444.8974 Email: mcu@justice.gc.ca

Intended Appellants Brief on Motion for Leave to Appeal Intended Appellants Brief Index Page i

IINTENDED APPELLANTS BRIEF Part I: An index of the contents __________________________ Part II: A concise statement of all relevant facts with such reference to the evidence as may be necessary;______________ Part III: (a) concise statement of the issues to be dealt with ______ (b) concise statement, setting out clearly, and particularly, in what respect, the order or decision appealed from is alleged to be wrong; _____________________________ Part IV: concise statement of the argument, law, and authorities relied upon regarding the following issues: Stay of Proceedings ____________________________ Bias Rule _____________________________________ Abuse of Discretion _____________________________ Error in law ___________________________________ Findings of Fact ________________________________ Conclusion ____________________________________ Appropriateness of Cost Orders In Favor Of SelfRepresented Litigants (21) ________________________ Part V: Statement of the relief sought by Intended Appellant ___ Schedule A __________________________________________

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12 19 20 28 29 33

35 39 40

Part II Concise statement of all relevant facts with such references to the evidence as may be necessary; (As in this section the following information is intended to clarify and develop the original Affidavit of Andre Murray Dated: December 27, 2012)

1.

New Brunswick Rules of Court Rule 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. 2. May 31, 2012 Applicant Andre Murray files Notice of Application

Form 16D, regarding Charter Challenge and is assigned a scheduled hearing date of July 13, 2012. 3. July 3, 2012, 501376 N.B. Ltd., a body corporate, files a Motion

requesting, inter alia, an extension, and or an abridgement of time, according to Rule 3.02. 4. July 5, 2012, RBC files a Motion requesting, inter alia, an abridgement

of time according to Rule 3.02.

5.

The above mentioned Motions, filed by the Respondents 501376 N.B.

Ltd., a body corporate and RBC do not contain any meritorious substantive material relevant to the Charter Challenge filed by Applicant Andre Murray May 31, 2012. 6. It is noteworthy that despite the Respondents 501376 N.B. Ltd., a body

corporate and RBC having been served a Charter Challenge Application within

days of the filing, of same, the May 31, 2012, it is not until 10 days and 8 days respectively before the Respondents filed their nefarious Motions therefore intended to delay matters. 7. Evidently RBC followed suit in filing their Motion within days of the

Respondent 501376 N.B. Ltd., a body corporate, as it would appear that both respondents must be comparing notes although RBC does not file their subject Motion until July 5, 2012. 8. The Applicant asks this Court of Appeal to consider the abuse of Court

process that which followed, the filing of herein subject Motions July 3, 2012 and July 5, 2012. 9. The Court of Appeal of New Brunswick should consider a Charter

Challenge Application as an altruistic Action on behalf of the Intended Appellant to take this opportunity to right a wrong for all of New Brunswick. 10. The Court of Queens Bench of New Brunswick should have

considered a Charter Challenge Application as an opportunity to right a wrong. 11. However, in any case, a Charter Challenge, in its very core essence,

must be considered a duty of all citizens to uphold the standards found therewithin the Canadian Charter of Rights Freedoms, whenever the criteria necessitates itself. 12. A Charter Challenge Application filed by anyone, must be considered

an unselfish Act, that which is initiated for the good of the whole as opposed to the singular Applicant, in other words as the age old expression is known, we do not kill the messenger.

13.

The herein above mentioned subject Motions filed by Respondents

Numbered Company and RBC are motivated to kill the messenger as the substance found therewithin their Motions lend nothing to the merits of the Charter Challenge Application, instead are blatantly obstructive in their design and purpose, to obstruct the Charter challenge application. 14. The Court of appeal of New Brunswick must not be observed to be

supporting such causes, as to obstruct a Charter Challenge Application. 15. The Applicant, based on the foundation laid here before the Court of

Appeal, will establish both erroneous application of the law by the Learned Trial Judge, as may be interpreted by the Rules of Court of New Brunswick. 16. The Applicant, based on the foundation laid here before the Court of

Appeal, will establish that the so called findings of fact upon which Learned Trial Judge Judy Clendening based her decisions and issued Orders December 17, 2012, are indeed not consistent with any of the substantive material evidence and or submissions filed into the subject Court File. Indeed it is incomprehensible, that rather than the Court conducting itself in an honorable manner by reasonably therefore, granting the Respondents their Abridgements and or Extensions of time, as the case may be required, the Court has chosen to, prior to the scheduled July 13, 2012, hearing of the subject Charter Challenge Application, adjourn the matter without consulting or obtaining consent of the Applicant, furthermore, this subject adjournment appears to be a bureaucratic shuffle as opposed to a Court issued Order, which must be considered an abuse of process, jurisprudence and or as the case may be simply dishonorable.

17.

Further to this outrageous act of official/unofficial adjournment, we

see that the Court of Queens Bench, will not hesitate to insult our sensibilities, by not providing any explanation whatsoever, moreover, the abuse of Court process occurs at this point, wherein and or whereby, the Learned Trial Judge refuses to issue an Order for the purpose of adjourning the subject scheduled hearing of, July 13, 2012. 18. At this point of the Brief the Court of Appeal must be beginning to see

that the metaphorical train of Justice is going off the rails (so to speak). 19. The Court of Queens Bench and any Learned Trial Judge presiding

over matters within the Trial Division, may not, as in this case, dispense with the Rules of Court, by indirectly causing an unofficial adjournment, as in this case of the scheduled July 13, 2012, Court Hearing of a Charter Challenge Application without explanation and evidently misrepresented as to the cause. 20. No explanation has been offered by the Learned Trial Judge, as to why

this scheduled hearing date of July 13, 2012 was adjourned to December 17, 2012. 21. Herein below, in Schedule A the applicant provides for the

consideration of the Court of Appeal, certain email correspondence between a representative of the Client Services, for Court of Queens Bench, who makes it abundantly clear, that no Order has been written and or issued furthermore, nor does the Learned Trial Judge presiding over the subject matters intend to issue an official Order, regarding the matter of an adjournment of the subject scheduled hearing date, July 13, 2012.

22.

It is the Duty of the Court of Appeal of New Brunswick to review and

to make findings of error as errors may be observed to occur in the regular process of the Courts duties to provide balanced remedy, inter alia.

23.

Where an appeal court accepts that an error of fact was made by the

trial judge, the circumstance is exceptional. This arises where, for example, the trial courts factual inferences arising from certain established facts were unreasonable. This indeed are the circumstances that Madame Justice Judy Clendening a Learned Trial Judge made findings of fact not supported by any substantive material filings or evidence submitted into the Court file, moreover, the Learned Trial Judge reasonably could not have relied upon entries verbalized On the Record for findings of fact therefore, the trial judge made erroneous factual inferences not arising from the established facts in the issuing of her Orders of December 17, 2012. 24. The question as to why the Learned Trial Judge has issued Orders of

prohibition, injunction and or a Stay as the case may be, is reprehensible in light of the fact that such a request for an injunction and or a stay does not exist originating from the Respondents. 25. Court of Appeal of New Brunswick must examine the WHEREAS

section of the Orders issued by Madame Justice Judy Clendening, thereafter this Honorable Court will be forced to ask itself, where are the actual findings of fact and or facts?; upon which Madame Justice Judy Clendening has reasonably therefore, chimerically relied upon. 26. The Applicant on May 31, 2012, did cause a Charter Challenge

Application and supporting Affidavit, to be Filed with Client Services for Court

of Queens Bench, Fredericton, Trial Division, at which time the subject document was Court filed and Date Stamped, as May 31, 2012, subsequently, thereafter, scheduled for a Court hearing of the subject matters to be July 13, 2012, which the Court did thereafter, without an explanation, and or adequate justification, cancel the initial scheduled hearing Date of the subject Charter Challenge Application, which had been previously set to have a Court room hearing of July 13, 2012; reader must note that the herein subject cancelation of the initial scheduled hearing Date of the subject Charter Challenge Application, occurred only within days of the actual scheduled hearing Date of the subject Charter Challenge Application; however, again without consulting the Applicant the Court (Applicant cannot be sure who) unilaterally assigned a new scheduled hearing date for the hearing of the subject matters as December 17, 2012. 27. December 13, 2012, the Applicant notified the Court of the

Applicants unfortunate debilitating computer hard drive malfunction. For consideration of this Honorable Court: the hard drive in a computer is the place where all the data is stored. When a hard drive malfunctions, data cannot be retrieved without removing the hard drive from a computer and sending it to an expert computer service person. 28. The Applicant reasonably advised the Court of Queens Bench of the

possibility that an adjournment may be in the best interest of justice, thereby providing the time necessary for the Applicant to manually reassemble his entire meritorious substantive materials, intended for submission on the scheduled Court Hearing of the subject matter for the December 17, 2012.

29.

Please note that December 14, 2012, in light of the computer hard

drive malfunction (consequential loss of all data) the Applicant filed a Motion for leave of the Court requiring an abridgment of time, that all materials necessary in respect of the Applicants Charter Challenge Application and response material to the Respondents two Motions as well as the final 3 documents provided to Client Services December 17, 2012, could be served that they may be considered by the Court on December 17, 2012. 30. The Applicant is reliably advised that the previously scheduled hearing

of an Application regarding Charter Challenge issues for July 13, 2012, was apparently adjourned, consequence of an empty shelf company 501376 N.B. Ltd., a body corporate., owned by Mecca Corporation of 211 Doak Road, Fredericton, July 3, 2012, had filed a Motion including supporting Affidavits which are superfluous and voluminous. 31. July 6, 2012, Royal Bank of Canada filed their Motion again supported

by superfluous voluminous Affidavit; all of this was occurring with the support of the Court to evidently change the scheduled hearing dates to accommodate the Respondents violation of time limitation restrictions according to the rules of Court, which could not have been served on time to effectively collaterally attack the Applicants Charter Hearing, originally scheduled to be heard July 13, 2012. 32. Two subject Motions filed by the Respondents are in violation of the

Rules of Court. The effect of the Respondents filing, evidently resulted in the Learned Trial Judge issuing an adjournment of the hearing of these subject matters to the adjusted date of December 17, 2012. Therefore, 501376 N.B. Ltd., a body corporate and Royal Bank of Canada were directly responsible for

that Adjournment which is a regular tactical maneuver of theirs which they have employed to their convenience and to the Applicants detriment since year 2009. 33. Rule 37.13 allows for this Pro re nata. The Court was advised that the

Applicant would be relying on written submissions rather than attending the scheduled hearing December 17, 2012, to accommodate, that the Hearing regarding the Charter Application could proceed as scheduled.

34.

Attached to Affidavit of Andre Murray Dated December 27, 2012, as

Exhibit A is the December 13, 2102, email letter sent to office of Clerk of the Court Craig Carleton, therefore giving Notice that I would be late in filing the subject Court documents essentially because of computer hard drive failure, furthermore, advising that all data stored in the hard drive was not retrievable without a delay. 35. Attached to Affidavit of Andre Murray Dated December 27, 2012, as

Exhibit B is the second December 13, 2102, email letter sent to Craig Carleton, Clerk of the Court, Notice that I would be late in filing the subject Court documents because of computer failure. 36. Attached to Affidavit of Andre Murray Dated December 27, 2012, as

Exhibit C is the Motion, which was filed by Applicant for Leave of the Court and Abridgment of time for service Dated December 14, 2012. 37. Attached to Affidavit of Andre Murray Dated December 27, 2012, as

Exhibit D is the Affidavit Dated December 14, 2012, which accompanied the

above noted Motion, which was filed by Applicant, for Leave of the Court and Abridgment of time for service. 38. Attached to Affidavit of Andre Murray Dated December 27, 2012, as

Exhibit E is the December 17, 2012, email letter sent to Clerk of the Court, Craig Carleton, therefore, Notice that I would not be attending the December 17, 2012, Hearing at 9:30 AM, furthermore, that I will instead be relying on my written filed submissions. 39. Attached to Affidavit of Andre Murray Dated December 27, 2012, as

Exhibit F is the December 17, 2012, impugned Order of the Court, now under review. 40. Attached to Affidavit of Andre Murray Dated December 27, 2012, as

Exhibit G is the December 18, 2012, Daily Gleaner Article commenting on the December 17, 2012, proceedings. 41. Attached to Affidavit of Andre Murray Dated December 27, 2012, as

Exhibit H is the December 17, 2012, delivery Notice Slip by Courier Service called: SA Deliveries which indicates Clerk of the Court Craig Carleton refused to accept certain Court Documents the Applicant was attempting to have Court filed at approximately 10:30 AM. December 17, 2012. 42. According to rules of Court, Rule 3.01(c) where the time for doing an

act or taking a step in a proceeding expires on a holiday, the act or step may be done or taken on the next day that is not a holiday. The date for filing this particular Motion for Leave to Appeal fell on Monday December 24, 2012, Christmas Eve (a holiday), consequentially the next day that is not a holiday was December 27, 2012.

43.

December 27, 2012, due to insurmountable unfavorable weather

conditions causing travel to be hazardous and at the very least unadvisable, nevertheless I did attempt to travel to the City of Fredericton returning from the area of Moncton City, furthermore as my motivation to return at that time, was to file: 44. NOTICE OF MOTION FOR LEAVE TO APPEAL (FORM 62A), Dated December 27, 2012; Affidavit in support of above mentioned MOTION, Dated December 27, 2012; Furthermore as the unfavorable weather backed up causing traffic

jams on highways, therefore, necessitated that I advise the Office of Court of Appeal by telephone, first of all: speaking with I believe Marie that I was underway; thereafter on my second telephone call correspondence I was advised by Bianca that the Registrar Natalie H. LeBlanc had already made note of my predicament and was happy to accept the filing of the herein above mentioned documents for filing, before the end of the day December 28, 2012. Considering all the above, this Leave to Appeal Motion was filed December 28, 2012, on time and accepted as same by the Registrar Natalie H. LeBlanc. Part III (a) a concise statement of the issues to be dealt with by the court; 45. Should Leave to Appeal be granted to the Applicant? Should a stay of proceedings be granted to the Applicant? Rules of Court, Rule 62.03, is the Rule considered by this Court in
62.03 Leave to Appeal

deciding whether to grant leave to Appeal Court of Appeal.

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(4) In considering whether or not to grant leave to appeal, the judge hearing the motion may consider the following: (a) whether there is a conflicting decision by another judge or court upon a question involved in the proposed appeal; (b) whether he or she doubts the correctness of the order or decision in question; or (c) whether he or she considers that the proposed appeal involves matters of sufficient importance. 46. In Lang v. Tran, Cavarzan J. addressed the following regarding

importance of the issues: With respect to the factor involving the importance of the issues, I note that the rule does not refer to the importance of the issues to the parties. No doubt, when matters require resolution by proceeding to trial the issues are important to the parties. In my view, however, importance of the issues comprehends matters of general importance affecting the rights of society at large, . . . Lang v. Tran, 2006 CanLII 32627 (ON SC), at para. 11 47. The Court which the Applicant is Motioning for Leave to Appeal from

has unjustly delayed the Hearing of a Notice of Application regarding Charter Challenge, further, burdening the Intended Appellant with impugned draconian prohibition Orders, therefore, if allowed to stand setting a precedent, which can be used against others, furthermore, both herein mentioned matters of general importance affecting the rights of society at large.

48.

This Intended Appellant believes, that the Court of Appeal will:

following its process of deliberation and consideration of all sides of the issue, thereafter, having reviewed the circumstances found illustrated throughout the entirety of this brief, find that both prerequisite Rule 62.03 conditions are met: (b) this Court doubts the correctness of the order or decision in question

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(c) this Court considers that the proposed appeal involves matters of sufficient importance to grant Leave to Appeal. (a) A concise statement setting out clearly and particularly in what respect the order or decision appealed from is alleged to be wrong;

49.

The subject December 17, 2012, impugned Orders of Madame Justice

Clendening are capricious, draconian, unjust, oppressive, biased, overbreadth, not based in law, not based in substantiated fact, display an abuse of discretion and if left to stand, will bring New Brunswick administration of Justice into disrepute. Part IV A concise statement of the argument, law, and authorities relied upon; Stay of Proceedings 50. Rules of Court, Rule 62.26, is the Rule used for a Stay of Proceeding 62.26 Stay of Proceedings (1) Unless ordered otherwise, an appeal does not (a) operate as a stay of execution or of proceedings under the decision or order appealed from, or (b) invalidate any intermediate act or proceeding. (2) A motion for a stay of execution or a stay of proceedings may be made before the judge appealed from, the Court of Appeal or a judge of the Court of Appeal. (3) On a motion for a stay of execution or a stay of proceedings, the Court of Appeal or judge may (a) if a question arose at the trial or hearing which is appropriate for submission to the Court of Appeal, grant a stay,

in the Court of Appeal.

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(b) if a stay of execution or a stay of proceedings may cause the respondent to lose the benefits of the verdict or judgment, impose terms to secure the respondents interests, and (c) impose any other terms necessary to prevent prejudice to the respondent.

51.

In C.D. v. A.B., 2004 CanLII 43691 (NB CA) J.C. MARC RICHARD,

J.A. Court of Appeal of New Brunswick provided the following regarding Stay of Proceedings, which was restated in DHP v PLP (M), 2012 CanLII 78463 (NB CA), M.W.M. v. H.L.M., 2009 CanLII 74704 (NB CA) and Bourque v. Bourque, 2005 CanLII 26694 (NB CA): [26] Courts generally determine whether it is just and equitable to grant a stay pending appeal by applying the well-known three-prong test formulated in Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110 and RJRMacDonald Inc. and Imperial Tobacco Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311: (1) Does the appeal pose a serious challenge to the decision in the court below? (2) Will the applicant suffer irreparable harm without a stay? (3) Does the balance of convenience favour the order sought?: see Moncton (City) v. Steldon Enterprises Ltd. et al., [2000] N.B.R. (2d) (Supp.) No. 3 (C.A.) per Drapeau J.A. (now Chief Justice of New Brunswick) who then observed that [t]he first branch of the test is referred to in Rule 62.26, while the second and third branches have been formulated by the courts to provide a principled framework for the exercise of discretion contemplated by the rule. [30] . irreparable harm in the sense of the term as set out by Sopinka and Cory JJ. in RJR-MacDonald at p. 341: Irreparable refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

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C.D. v. A.B., 2004 CanLII 43691 (NB CA) para 26 and 30 52. A Charter Challenge is a serious matter, the scope of which,

reasonably, has wide reaching implications, as in this case, assuring security of the person to all New Brunswick residents and or non-resident of New Brunswick, who may be considering doing business within the province of New Brunswick. Therefore, the effect of the subject impugned prohibition Order issued by the Learned Trial Judge Madam Justice Judy Clendening, consequently, in the first instance denies opportunity for Applicant Andre Murray to obtain remedy, moreover, in the second instance eliminates a significant opportunity to establish a precedent, that, which will begin the process of causing New Brunswick legislation to reflect its own undertaking to become Charter compliant.

53.

The Applicant having dedicated himself in a solemn and or thoughtful

manner, has compiled and filed meritorious substantive material submissions which deserve careful consideration by a Learned Trial Judge of the New Brunswick Court of Queens Bench, however, the herein subject of this motion, for leave to appeal from the Order issued December 17, 2012 Order is of paramount necessity to overturn, quash, and or dismiss the herein mentioned subject Order as impugned (in its entirety).

54.

The herein above mentioned subject impugned prohibition Order

issued by the Learned Trial Judge Madam Justice Judy Clendening, if allowed to stand, will, without good reason or sound judgment, seriously limit the Applicants access to justice,. Please take Note of the extent of the subject

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prohibition Order issued December 17, 2012, which must be considered severe, if not indeed draconian, as the scope of prohibition is so wide as to deny any further opportunity to seek remedy, whatsoever, within New Brunswick Court of Queens Bench Trial Division. Such as is found in paragraphs 4, 5, 6 and 7, an excerpt of which is provided herein below:

55.

In the interest of not exacerbating the extent of irreparable harm, which

must reasonably be self-evident, that, which the Intended Appellant will suffer, consequences of the herein above mention subject Court Order issued: December 17, 2012, therefore, these subject Orders must not be permitted to stand.

56.

Notice: the Applicant will continue to suffer irreparable harm if the

herein requested Stay is not granted. 57. Please take further Note the herein subject (Originating Process; Court

File Number: FM/27/12) Charter Application should have been recognized as the priority issue before the lower Court, which, therefore, the subject Charter Application is reasonably being nefariously obfuscated by these subject

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Motions of the Respondents, which must, in any case, be considered frivolous and vexatious in substance; however, unfortunately thereafter, was negligently (failure to exercise the care that a reasonably prudent person would exercise in like circumstances) was reportedly entertained (with amusement or enjoyment) by the Learned Trial Judge.

58.

Furthermore, in considering irreparable harm, that which, and must be

foremost in the minds of any Appellate Judge, is the current uncertain state of the law regarding the award of damages for a Charter breach, it will in most cases be impossible for a judge on an interlocutory application to determine, whether adequate compensation could ever be obtained at trial. Therefore, until the law in this area has developed further, (according to the Supreme Court of Canada), it is appropriate to assume that the financial damage, which will be suffered by an applicant following a refusal of relief, even though, nevertheless, incapable of quantification, constitutes irreparable harm. Secondary, nevertheless, and not any less significantly harmful to the Applicant, is the standing Court Order completely prohibiting the Applicants access to the Court of Queens Bench of New Brunswick; this that which is a province wide prohibition, which reasonably constitutes irreparable harm, again, that which again cannot be quantified in damages. 59. In this matter the balance of convenience favors the granting of the

Applicants request for a Stay of the order (or decision) of Court of Queens Bench, Fredericton, Trial Division, issued by Learned Trial Judge, Madame Justice, Judy Clendening, Dated the 17th day of December, 2012. 60. Furthermore, to the above question of the Balance of Convenience, the

Applicant further believes it is critical in the interest of Justice, as in this case,

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that the Applicant must be heard, Audi alteram partem hear the other side for this purpose the Applicant must be allowed to provide argument relevant to The Charter application, contrary to the standing Orders as found in paragraphs 4, 5, 6 and 7 of the subject Orders issued December 17, 2012; however, the prohibition, therefore, of any would be litigant to be allowed and or free to in a timely manner seek remedy may consequentially be fatal to any Applicants cause, especially in matters concerning equity, therefore the subject prohibition Orders will result in a significant miscarriage of justice, moreover an additional Charter Breach. To put it bluntly the Applicant asserts that no greater inconvenience could be experienced by New Brunswick, Self Represented Litigants than a complete prohibition from being able to defend ones equitable interest as they may be, and or to seek, in a timely manner, certain remedy, through Court of Queens Bench Trial Division.

61.

Furthermore, on the matter of Balance of Convenience, in addition and

or despite the damages each party alleges it will suffer, the interest of the public must be taken into account. In this case, should the Applicant be successful on this subject Charter Application, the public will benefit by all Residential Leasehold Tenants and or home owners will no longer be fearing eviction (thrown out into the Street) by Mortgagees who having consequently established a president at law, may now with confidence circumvent, therefore, further, by continuing these herein above and now again reasonably mentioned, crafty nefarious legal technicalities, which will eviscerate the Charter protected New Brunswick Residential Tenants Rights. 62. This Honorable Court is considering the Applicants request for a Stay

of the subject Orders issued December 17, 2012, which if not stayed will bar

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the Applicant from a meaningful Hearing of the real matters in dispute, that being the Charter Challenge. Please Note: The Charter Challenge before the lower Court is a clear case justifying an interlocutory injunction against the enforcement of impugned legislation on grounds of alleged unconstitutionality. The Applicant argues not only his own private interest, but also the public interest, will be hurt by this Honorable Court not granting the herein requested Orders for a stay. 63. The granting of a Stay, pursuant to Rule 62.26(3)(a) of the Rules of

Court, therefore, properly exercised, will preserve, and or restore the status quo. The granting of a stay will not give the Applicant his remedy; only preserve the parties standing until the Charter issues are resolved. 64. A judicial stay of proceedings has been recognized as being

appropriate in circumstances, where prejudice to the applicants right to make full answer and defence cannot be remedied. If the impugned December 17, 2012, Orders were to be enforced, prejudice to the applicants rights to make full answer and defence will be reasonably blocked, therefore, a prejudice of which, potential and or realized harm, cannot and or could not be remedied. 65. The herein subject matters which are of paramount importance,

reasonably must be the issue of New Brunswick Legislation being non-Charter compliant, therefore, is impugned Legislation, manipulated by Mortgagees to trample Charter protected Residential Tenants - Tenancy Rights. It is time New Brunswick Legislation, aligns its Statues according to the Charter, consistent with every other Province in Canada. By granting the Stay as requested, the parties may proceed through due process. If the Applicants request for the subject Stay is not granted, consequently, this denial of a

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reasonable request in light of the circumstances, will give cause for the public to realize the innate bias of the circumstances, resulting in obvious irreparable prejudice to the perceived integrity of the judicial system of New Brunswick; Once the public loses faith in the Justice system... Bias Rule 66. In R. v. S. (R.D.), the header of the Courts decision sums up the case

before the supreme Court and provide relevant insight into the reasonable apprehension of bias displayed by the actions and assertions of the Learned Trial Judge, the relevant section is provided in the following: (2) Reasonable Apprehension of Bias Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The courts should be held to the highest standards of impartiality. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. The trial will be rendered unfair if the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer. If actual or apprehended bias arises from a judges words or conduct, then the judge has exceeded his or her jurisdiction. A reasonable apprehension of bias, if it arises, colours the entire trial proceedings and cannot be cured by the correctness of the subsequent decision. The mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from the judges other words or conduct. ... The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with

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knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. R. v. S. (R.D.), [1997] 3 S.C.R. 484 67. The Learned Trial Judge failed to understand the facts and arguments

as presented by the Appellant and instead pursued only the arguments, interests and assertions as presented by the Respondents, this predisposition of the Learned Trial Judge toward a particular result, is such that a reasonable apprehension of bias is raised, furthermore, the learned Trial Judge made obviously erroneous statements within the decision which are not supported by Court Filed substantive material evidence, therefore, must represent a bias or predisposition of the Learned Trial Judge to render a decision not found in fact.

68.

Considering the predisposition of the Learned Trial Judge to grant

Orders in favor of the Respondents, despite lack of merit, and lack of sufficient evidentiary record to maintain that position, an informed person, viewing the matter realistically and practically -- and having thought the matter through would conclude reasonable apprehension of bias exists. Abuse of Discretion 69.
Black's Law Dictionary (8th ed. 2004), at Page 31 defines ABUSE OF

DISCRETION and ABUSE OF PROCESS As follows: ABUSE OF DISCRETION abuse of discretion. 1. An adjudicator's failure to exercise sound, reasonable, and legal decisionmaking. 2. An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.

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

70.

The topic of unreasonable use of the discretion was examined in Slaight

communications inc. v. Davidson as follows: Parliament cannot have intended to authorize such an unreasonable use of the discretion conferred by it. A discretion is never absolute, regardless of the terms in which it is conferred. This is a long-established principle. H. W. R. Wade, in his text titled Administrative Law (4th ed. 1977), says the following at pp. 336-37: For more than three centuries it has been accepted that discretionary power conferred upon public authorities is not absolute, even within its apparent boundaries, but is subject to general legal limitations. These limitations are expressed in a variety of different ways, as by saying that discretion must be exercised reasonably and in good faith, that relevant considerations only must be taken into account, that there must be no malversation of any kind, or that the decision must not be arbitrary or capricious. [Emphasis added.] This limitation on the exercise of administrative discretion has been clearly recognized in our law, by Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, and Blanchard v. Control Data Canada Ltd., 1984 CanLII 27 (SCC), [1984] 2 S.C.R. 476, inter alia. Whether it is the interpretation of legislation that is unreasonable or the order made in my view matters no more than the question of whether the error is one of law or of fact. An administrative tribunal exercising discretion can never do so unreasonably. To reiterate what I said earlier in Blanchard, supra, at pp. 494-95: An administrative tribunal has the necessary jurisdiction to make a mistake, and even a serious one, but not to be unreasonable. The unreasonable finding is no less fatal to jurisdiction because the

21

finding is one of fact rather than law. An unreasonable finding is what justifies intervention by the courts. Not only is the distinction between error of law and of fact superfluous in light of an unreasonable finding or conclusion, but the reference to error itself is as well. Indeed, though all errors do not lead to unreasonable findings, every unreasonable finding results from an error (whether of law, fact, or a combination of the two), which is unreasonable. In conclusion, an unreasonable finding, whatever its origin, affects the jurisdiction of the tribunal. Slaight communications inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 SCR 1038, 71. The Supreme Court of Canada reviewed Abuse of process in the case In summary, abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. I add that I would read these criteria cumulatively. While Wilson J. in R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657, at pp. 658-59, used the conjunction "or" in relation to the two conditions, both concepts seem to me to be integral to the jurisprudence surrounding the remedy of a stay of proceedings and the considerations discussed in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, and R. v. Conway, supra. It is not every example of unfairness or vexatiousness in a trial which gives rise to concerns of abuse of process. Abuse of process connotes unfairness and vexatiousness of such a degree that it contravenes our fundamental notions of justice and thus undermines the integrity of the judicial process. To borrow the language of Conway, the affront to fair play and decency must be disproportionate to the societal interest 72. In Matondo, Justice Harington of the federal Court of Canada wrote:

of R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 SCR 979:

22

"To be capricious is to be so irregular as to appear to be ungoverned by law." Matondo v Canada, 2005 FC 416, 73. Justice Barnes of the Court of Appeals of Mississippi wrote, in Public Employees: "A capricious decision is done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles." 74. In Gloucester (City) v. Bennett, 124 DLR 3d 495 (Ontario Supreme Court, 1981) Justice Montgomery adopted these words to distinguish capricious from arbitrary: "To act arbitrarily is to act without any reasonable cause. "To act capriciously is to act without any apparent reason." Gloucester (City) v. Bennett, 124 DLR 3d 495 (Ontario Supreme Court, 1981) 75. So, too, did Justice Bryan in Alabama Department of Youth Services: "A decision is not arbitrary where there is a reasonable justification for the decision or where the determination is founded upon adequate principles or fixed standards. "A decision is capricious if it is so unreasonable as to shock the sense of justice and indicate lack of fair and careful consideration." Alabama Department of Youth Services v. State Personnel Board., 7 So. 3d 380 (2008) 76. Abuse of discretion is a failure to take into proper consideration the

facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom. Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not

23

clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge.

77.

The Supreme Court of Canada reviewed The Standard of Patent

Unreasonableness in C.U.P.E. v. Ontario : A. The Standard of Patent Unreasonableness

20 Before answering this question, it is helpful to review some of the ways that this Court has articulated the test for patent unreasonableness. These are not independent, alternative tests. They are simply ways of getting at the single question: What makes something patently unreasonable? In Suresh, supra, at para. 41, this Court indicated that a 21 patently unreasonable decision is one that is unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures. This linkage of the nominate grounds for abuse of discretion with the patent unreasonableness standard demonstrates the unified approach to review of discretionary decision making set out by LHeureux-Dub J. in Baker, supra. Other formulations of the test for patent unreasonableness are also helpful. Most relevantly in this appeal, other formulations assist in construing the terms vitiated by failure to consider the proper factors. A reweighing or reconsideration of factors that were originally considered will not suffice to vitiate the decision. Furthermore, it is not necessarily sufficient that a new relevant factor be invoked to vitiate the ministerial decision. 22 In Ryan, supra, Iacobucci J. writes that [a] decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand (para. 52). 23 reasonableness In Southam, supra, Iacobucci J. distinguishes the simpliciter standard from that of patent

24

unreasonableness. He states that the difference lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunals reasons, then the tribunals decision is patently unreasonable. A decision is not patently unreasonable, he says, if it takes some significant searching or testing to find the defect. He says too that once the lines of the problem have come into focus, . . . the unreasonableness will be evident (para. 57). Another way of getting at the evident quality of the unreasonableness is to say that once identified, a defect rendering a decision patently unreasonable can be explained simply and easily (Ryan, supra, at para. 52). 24 In Canada (Attorney General) v. Public Service Alliance of Canada, 1993 CanLII 125 (SCC), [1993] 1 S.C.R. 941 (PSAC), Cory J. states that the very strict test of patent unreasonableness is whether the decision is clearly irrational, that is to say evidently not in accordance with reason (pp. 963-64). C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (CanLII), [2003] 1 SCR 539, paragraph 20 25.

78.

The courts will intervene if it is established that the subject decision is

patently unreasonable in the sense of irrational or perverse or (in language adopted in Coughlan, at para. 72) so gratuitous and oppressive that no reasonable person could think [it] justified.

79.

Black's Law Dictionary (8th ed. 2004), at page 631, defines CAPRICIOUS capricious, adj. 1. (Of a person) characterized by or guided by unpredictable or impulsive behavior. 2. (Of a decree) contrary to the evidence or established rules of law. Cf. ARBITRARY

Capricious as follows:

25

80.

The impugned Court Order appears to the Intended Appellant to be

contrary to the evidence or established rules of law.

81.

The Appellant asserts, that The Learned Trial judge did display abuse

of discretion, which is an adjudicator's failure to exercise sound, reasonable, legal decision-making. The Learned Trial Judge alternately rendered a decision which is unsupported by the evidence and clearly based on erroneous findings of material fact.

82.

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

83.

The claimed findings of fact, upon which the Learned Trial Judge

based her decisions, stating NOW THEREFORE IT IS HEREBY ORDERED THAT however, upon examination of each of the WHEREAS, the substance of fact is not found there within, furthermore, each of the WHEREAS are followed by the Learned Trial Judges conjecture (Inference or judgment based on inconclusive or incomplete evidence); moreover of the three WHEREAS including the AND UPON the substance of which precede NOW THEREFORE IT IS HEREBY ORDERED THAT please note there is no substantive material evidence filed in the Court to support any of the claims found therewithin the herein above mentioned subject WHEREAS including the AND UPON with the exception of the first WHEREAS the respondents filed Motions seeking to have Andre Murray declared a vexatious litigant. Please Note that despite there being Motions seeking declaration of a

26

vexatious litigant-seeking a declaration does not a declaration make, and can hardly be considered a fact worthy of issuing such subject draconian Orders as we have witnessed. 84. The Intended Appellant can show that the subject impugned Orders

are unreasonable, based on a material misapprehension of the evidence, and or tainted by a failure and or misapprehension of Court filed substantive material evidence. The effect is significantly unjustified prejudice and or injustice to the Intended Appellant. 85. The Learned Trial Judge, demonstrated, that she did not appreciate the

argument, or position advanced by the Intended Appellant, consequently failed or refused to understand the legal principles relied upon, found therein, in support of the Intended Appellants argument requesting Leave of the Court, to therefore, obtain Abridgement of Time, to file and serve Court documents, which, despite having already been served upon the respective parties to the action, were, according to the rules of Court, technically, exceeding the time limitations for service by 24 hours. However, the law has for centuries recognized that a COURT OF APPEAL would interfere with the exercise of the discretion of a trial judge when "the trial judge was manifestly wrong" or "substantial injustice" or "serious injustice would result", which the Applicant claims to be evident in this case.

86.

Manifest Abuse of Discretion is demonstrated when a Courts

Discretionary Decision is unsupported by the evidence; further, when a Court alternatively arrives at erroneous finding of material facts, as has occurred in this subject matter, consequently, the Intended Appellant claims that the Learned Trail Judge has demonstrated Manifest Abuse of Discretion, by not

27

granting the Intended Appellants Motion - Leave of the Court for an Abridgement of time to file and serve documents. However, instead the Learned Trial Judge rendered a decision, which in effect grants the Intended Respondent the relief they were seeking, denies the Applicant province wide access to the Court of Queens Bench thereby creates a prejudicial hurtle for the Self Represented litigant. In these circumstances it would be a disservice to the administration of justice to allow this decision to stand.

87.

The Learned Trail Judges Omissions in reasons for judgment, which

amount to material error because they give rise to the reasoned belief that the trial judge must have forgotten, ignored or simply misconstrued the evidence in a way that affects the Courts conclusions. 88. Like any other discretionary judicial decision, it may be interfered with

on appeal when it is founded upon an error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence Error in law The Courts standard of review on pure questions of law must be one

89.

of correctness. Appellate courts require a broad scope of review with respect to matters of law, because their primary role is to delineate and refine legal rules and ensure their universal application. Court Orders issued under statutory authority are valid only when within the scope of authority, however as in this case, the Trial Court did commit a reversible error. The learned Trial judge did not base its decision on any recognizable Statute, Rule of Court or legal principle.

28

90.

Black's Law Dictionary (8th ed. 2004), at page 631, defines CAPRICIOUS capricious, adj. 1. (Of a person) characterized by or guided by unpredictable or impulsive behavior. 2. (Of a decree) contrary to the evidence or established rules of law. Cf. ARBITRARY

Capricious as follows:

91.

The Court record does not contain any substantive material evidence and

or Court filed submissions which may justify the Learned Trial Judge issuing a Capricious Order which Stays the proceedings for six months, inter alia, which is contrary to the evidence and or established rules of law. Findings of Fact 92. The standard of review for findings of fact is such that they cannot be

reversed unless the trial judge has made a palpable and overriding error. A palpable and overriding error is one that is plainly seen. However, in this case the Learned Trial Judge evidently based her decision on facts as the Learned Trial Judge expressed could be found within the first 3 WHEREAS paragraphs including the AND UPON paragraph, of which in each respective case of the above subject WHEREAS including the AND UPON the Learned Trial Judge did provide written justification for her findings of fact. Please see excerpts, thereof, provided below.

93.

First whereas: WHEREAS the respondents filed motions seeking

Andre Murray declared a vexatious litigant; The Applicant respectfully asserts this cannot be considered a finding of a relevant fact, as there has never been a determination as to the validity of the

29

Respondents claims, therefore can hardly justify what has occurred by issuing prohibition Orders consequently in this case the Learned Trial Judge by virtue of erroneous punitive actions and or Orders issued against the Applicant, therefore, the Learned Trial Judge is treating the Applicant as guilty until proven innocent. 94. Second whereas: AND WHEREAS the Applicant filed documents

with the Court of Queens Bench on Friday, 14 December 2012 requesting an adjournment of both his and the respondents Motions; The Applicant asserts there is no proof thereof, Applicant filed documents with the Court of Queens Bench on Friday, 14 December 2012 requesting an adjournment is false, therefore this is not decision based on fact. 95. Third whereas: AND WHEREAS this matter was originally scheduled

for and ready to proceed on 13 July 2012 and was adjourned by the Court do to a conflict; The Applicant asserts there is no proof thereof therefore this so called decision is not based on fact, however if in deed there was a conflict the Court has never revealed and or advised the Applicant of any circumstances equivalent to a conflict, nevertheless, an unknown conflict occurring 13th of July 2012 can hardly be a fact worthy of denying the Intended Appellant any access to New Brunswick Court of Queens Bench for 6 months with further outrageous Orders forbidding any contact between parties.

96.

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

that because of illness he was unable to appear; The Applicant asserts there is no proof thereof; the Applicant has absolutely never notified the Court on, before and or after December 17, 2012, that

30

because of an illness he was unable to appear, therefore this is not decision based on fact, instead this is a decision based on falsehoods, misapprehension and or misrepresentations, as found throughout the subject impugned Order.

97.

The Court failed/omitted to write in the Order that the Applicant had

Court filed Date Stamped May 31, 2012, with Court of Queens Bench Client Services a Charter Challenge Application, which was originally scheduled to be heard July 13, 2012, then without explanation rescheduled be heard December 17, 2012.

98.

The two of three Motions which the Court has referred to, were filed

by the Respondents, moreover, were filed late and could reasonably be recognized as motivated only for the purpose of collaterally attacking the Charter proceedings, therefore the Respondents have succeeded in another attrition tactic against the Applicant in their effort to prevent a most significant matter of a Charter Infringement from being heard in the New Brunswick Court of Queens Bench.

99.

Obfuscation of the facts by the Learned Trial Judge is palpable and

overriding as found in the Learned Trial Judge decision - Second WHEREAS which December 13, 2012 the Applicant notified the Court of the Applicants unfortunate situation, The Court failed to include in the impugned decision the fact that the Applicant asked for an adjournment because of a unfortunate debilitating computer malfunction and consequential loss of integral legal data. True the situation which was exacerbated by the stressful circumstances of loss of data due to a computer hard drive failure, which was made abundantly clear that despite the stressful situation the Applicant was sincerely endeavoring to

31

file on time despite having to resort to various notes inter alia. Applicant, at that time of the email, the Applicant was unsure if the appropriate documentation would be filed on time for the December 17, 2012 scheduled Hearing, once again any mention of health was only to place emphasis on the Applicants sincerity and determination to see this thing through. An adjournment was a obvious short term remedy for the Applicant to recover data not for health reasons. 100. Please Note that the subject hearing December 17, 2012, was

scheduled to commence at 9:30 AM, it is reasonable to say that by the time all who are attending the subject Court Hearing have been identified and the matters to be determined have been declared and or identified nothing less than 10 minutes would have transpired, this would place the actual discovery of the substance of the matters to reasonably begin to be explored at 9:40, furthermore, one must remember that the originating process and 3 separate Motions were at issue, having said this I would bring this honorable Courts attention to the fact as found as an exhibit within my Affidavit a confirmation that the Clerk of the Court refused to accept delivery of substantive materials, intended for submission to the relevant Court File, of which is our topic. Furthermore, the Affidavit Exhibit points to a fact that at precisely 10:56 AM the Clerk of the Court was already refusing to accept the filing of the Applicants substantive material submissions. The point the Applicant intends to make here is the improbability that a Court Order had been printed and or even signed as early as what reasonably would have to have been 10:30AM. It has occurred to the Applicant that there may be collaboration between the Clerk of the Court Craig Carleton and Learned Trial Judge Judy Clendening, which is insincere for what else could it be to behave in such a manner.

32

101.

The resulting impugned Orders are draconian, oppressive, biased,

overbreadth, and if left to stand, will bring New Brunswick administration of Justice into disrepute. Conclusion 102. Madam Justice Judy Clendening has, in this matter, (metaphorically

speaking) performed mental gymnastics in that: Justice Judy Clendening finds a means of pole vaulting over top of circumventing the Applicants Originating Process, Court Filed May 31, 2012, with Court of Queens Bench, Fredericton, Trial Division.

103.

Employing illogical processes Learned Trial Judge Judy Clendening

hurtles over top of (in this case) the Originating Process, Madame Justice Judy Clendening actually succeeds to bypass the Originating Process, consequently, the substance of which Judy Clendening entirely ignored, subsequently as, upon descending down the other side of (the metaphorical ) pole vault Madame Justice Judy Clendening is careful to land on and or address only two of the three Motions, Court filed. 104. The two Motions which were considered by Justice Judy Clendening;

nevertheless, in considering this subject maneuver of Madame Justice Judy Clendening, it becomes abundantly clear that the subject two Motions (filed by Respondents) of three Motions were the only Motions Madame Justice Clendening intended to consider. 105. However, facts are: an abuse of Court Discretion has occurred,

whereby, the Learned Trial Judge Madame Justice Clendening did seriously error by not considering the substance of the Motion filed by the Applicant

33

Andre Murray, found therein requesting relief - Orders for Leave of the Court and Abridgment of time to Court file and Serve Court Documents for the previously scheduled December 17, 2012, Court Hearing of a Charter Application. Consequently, the Intended Appellant asserts that this Court may find ample reason to declare that the Learned Trial Judge Madame Justice Clendening displays a reasonable apprehension of Bias when, as in this particular case, considering matters which concern Andre Murray.

106.

The Intended Appellant offers that herein provided analogy of mental

gymnastics is most appropriate; for Madame Justice Clendening to have necessarily achieved such a obfuscation of the priorities; furthermore, which however, may not justify abuse of Court process and or jurisprudence by Madame Justice Clendening relying on her inherent discretion. 107. So vivid is the determination and or Apprehension of Bias of Madame

Justice Judy Clendening, demonstrated against Applicant Andre, that consequently, therefore, since Madame Justice Judy Clendening clearly proceeds to abuse her discretion, in actions and or deeds not recognizable within the Rules of Court and nor Jurisprudence, consequently, the Intended Appellant has found it necessary to resort to analogies, such as found herewithin, which the Applicant is respectfully referring to as mental gymnastics and or Alice in Wonderland furthermore, Queen of Hearts, analogous. 108. Furthermore, one can see that Madame Justice Judy Clendening

appears to believe that she is capable of levitating above and beyond reason. There is no requirement for as material pole to accomplish the mental gymnastics pole vault over and therefore, ignore the Applicants Originating

34

Process of Charter Challenge Application ,that is as in this case when the presiding judge is prepared to abuse the Courts discretion; moreover, the Applicants Originating Process was properly Court filed by the Applicant, therefore, requesting the hearing of a Charter Challenge; instead Madame Justice Judy Clendening simply levitates above and beyond her worldly obligations, consequently shirks her responsibility to adhere to well established jurisprudence in these such matters; further it appears as though Madame Justice Judy Clendening arrogantly relies upon her legal sentencing, which has not to date hypnotized the Intended Appellant, to for that purpose cause the Intended Appellant loss of consciousness of Andre Murrays Charter Rights which Madame Justice Clendening continues to whimsically violate. 109. In summary, please kindly consider, that, the Applicants Originating

Process Charter Challenge Application and the Applicants Motion was completely ignored by Madame Justice Judy Clendening, however, Madame Justice Judy Clendening despite the Respondents having filed two Motions, both, of which are requiring abridgements and or extensions of time for service are nevertheless detrimental to the Applicants Originating Process Charter Challenge Application cause, furthermore, cannot be considered relative the Applicants Originating Process Charter Challenge Application;

Cost Cost Orders In Favor Of Self-Represented Litigants 110. In McNichol v. Co-operators General Insurance Company, Drapeau

C.J. addresses orders for costs in favor of self-represented litigants, stating: [43]. . . Rule 59.01, however, makes it clear that costs are in the discretion of the trial court who can determine by whom

35

and to what extent costs shall be paid and that such costs can be fixed with or without reference to a tariff. In addition, there appears to be a modern trend regarding the granting of costs to unrepresented lay litigants. McNichol v. Co-operators General Insurance Company, 2006 NBCA 54 (CanLII), at paras. 41 to 45 111. The Intended Appellant offers that after due consideration, this

Honorable Court may conclude similarly as in McNichol, supra, that this subject matter currently under review, is one, according to under Rule 59.01 that calls for the exercise of this Honorable Courts discretion in a manner favorable to a lay litigant; therefore, this Honorable Court may find it appropriate to order the Respondents to pay costs, which may be typically fixed at $5,000, in addition to all reasonable disbursements.

112.

In Fong, et al. v. Chan, et al., 46 OR (3d) 330 (CanLII), paragraphs 15

to 27, Sharpe J.A stated the opinion of the Court regarding the right of selfrepresented lay litigants to recover costs.

113.

As similarly stated in Fong, et al. v. Chan, et al., 46 OR (3d) 330

(CanLII) Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to work ordinarily done by a lawyer retained for litigation, and that as a result, self represented litigants incurred an opportunity cost by foregoing remunerative activity such as the Intended Appellant before this Honourable Court. It is abundantly clear that the Applicant devoted much time to present thought-provoking legal arguments ordinarily submitted by an attorney, further is evidenced by the quality of the material presented for consideration by this Honorable Court.

36

114.

Also stated in Fong, et al. v. Chan, et al., 46 OR (3d) 330 (CanLII),

three purposes are fostered by allowing the trial judge discretion to award costs to self-represented litigants: modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. Fong, supra, at para. 22 115. As is well established by the Courts, lay litigants may recover costs,

including counsel fees. This is a clear trend of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

116.

Costs may be awarded to those lay litigants, who can demonstrate

devoted time and effort, which would ordinarily have been done by a lawyer retained for same litigation. Further, it is consistent when lay litigants incurred an opportunity cost by foregoing their usual remunerative activity; therefore, awarding of additional costs (as in this matter) be a useful tool of the Court to encourage future settlements and/or to discourage or sanction inappropriate behavior, as the case may be.

117.

The importance of the issues raised by the Intended Appellant would

favor this Honourable Court granting costs in favor of the Intended Appellant.

118.

In Lang v. Tran, Cavarzan J. addressed the following regarding

importance of the issues: With respect to the factor involving the importance of the issues, I note that the rule does not refer to the importance of the issues to the

37

parties. No doubt, when matters require resolution by proceeding to trial the issues are important to the parties. In my view, however, importance of the issues comprehends matters of general importance affecting the rights of society at large, . . . Lang v. Tran, 2006 CanLII 32627 (ON SC), at para. 11 119. A Charter violation, which may be cured by the Intended Appellant /

Applicants actions, should qualify as an important issue.

120.

Black's Law Dictionary defines frivolous as: frivolous, adj. Lacking a legal basis or legal merit; not serious; not reasonably purposeful Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary, 8th ed., frivolous. (Thomson/West, 2004) at p. 1969

121.

Black's Law Dictionary defines vexatious as: vexatious, adj. (Of conduct) without reasonable or probable cause or excuse; harassing; annoying. Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary, 8th ed., vexatious. (Thomson/West, 2004) at p. 4842

122.

The Respondents Royal Bank of Canada and 501376 N.B. Ltd, a body

corporate owned by Mecca Corporation record of conduct regarding frivolous and vexatious Motions filed to Andre Murrays originating process are to date quantitatively excessive, therefore, clearly designed to impede Andre Murrays sincere attempts to find remedy within the NOTWITHSTANDING aspects of Residential Tenancies Act of New Brunswick upon which all residential tenants of New Brunswick reasonably rely upon, however, Respondents Royal Bank of Canada and 501376 N.B. Ltd, a body corporate employed litigious actions to

38

Schedule A

Adjournment of Court of Queens Bench, Fredericton Trial Division motions re: Andre Murray v. Royal Bank et al
Reid, Anne (JUS) <Anne.Reid@gnb.ca> Mon, Jul 9, 2012 at 2:32 PM To: "andremurraynow@gmail.com" <andremurraynow@gmail.com>, Hugh Cameron <hcameron@stewartmckelvey.com>, "gleblanc@coxandpalmer.com" <gleblanc@coxandpalmer.com>, "Thriault, Denis (OAG/CPG)" <Denis.Theriault@gnb.ca>

Andre Murray v. Royal Bank et al Please be advised that pursuant to the direction of the Court the motions in the above noted matter scheduled for Friday, July 13th at 9:30 have been adjourned. You will be advised immediately when a new date is secured for the hearing of the motions. Please confirm receipt via email. Sincerely, Anne Anne Reid Department of Justice & Attorney General / Ministre de la justice & procureur gnral
Court Services - Administration Trial Division phone: fax: 453-2015 444-5675

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

40

Reid, Anne (JUS) <Anne.Reid@gnb.ca> Mon, Jul 9, 2012 at 3:04 PM To: "andremurraynow@gmail.com" <andremurraynow@gmail.com>, Hugh Cameron <hcameron@stewartmckelvey.com>, "gleblanc@coxandpalmer.com" <gleblanc@coxandpalmer.com>, "Thriault, Denis (OAG/CPG)" <Denis.Theriault@gnb.ca>

Further to my previous email, please note that both motions and the application are adjourned. None of the matters scheduled for July 13th at 9:30 will be proceeding. Thank you, Anne Anne Reid Department of Justice & Attorney General / Ministre de la justice & procureur gnral
Court Services - Administration Trial Division phone: fax: 453-2015 444-5675

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

In Response, one question please

6 messages Andre Murray <andremurraynow@gmail.com> To: Anne.Reid@gnb.ca Bcc: sallybrooks25@yahoo.ca Mon, Jul 9, 2012 at 4:18 PM

July 9, 2012
Anne Reid

41

Department of Justice & Attorney General / Ministre de la justice & procureur gnral
Court Services - Administration Trial Division phone: fax: 453-2015 444-5675

Dear Ann Reid, in response to your June 9, 2012 advising of adjournment of Motions. Thank you for yours. Please, kindly confirm the Application form 16D, is not to be heard July 13, 2012, as scheduled. I am standing by for your response at your earliest convenience please. Sincerely without malice, aforethought, ill will, vexation, or frivolity . _____________ Andr Murray 31 Marshall Street, Fredericton, N.B E3A 4J8 andremurraynow@gmail.com
+++++++++++++++++++++++++++++++++++++++++++++++++++++++
Andre Murray <andremurraynow@gmail.com> Mon, Jul 9, 2012 at 4:23 PM To: Anne.Reid@gnb.ca

42

July 9, 2012
Anne Reid Department of Justice & Attorney General / Ministre de la justice & procureur gnral
Court Services - Administration Trial Division phone: fax: 453-2015 444-5675

Dear Ann Reid, Regarding my earlier e-mail on the subject of the adjournment of the Motions, would it be possible, today, for me, to pick up a copy of the Order of the Court adjourning the hearing of the subject Motions. Thank you. Sincerely without malice, aforethought, ill will, vexation, or frivolity . _____________ Andr Murray 31 Marshall Street, Fredericton, N.B E3A 4J8 andremurraynow@gmail.com
+++++++++++++++++++++++++++++++++++++++++++++++++++++

43

Reid, Anne (JUS) <Anne.Reid@gnb.ca> Mon, Jul 9, 2012 at 4:23 PM To: Andre Murray <andremurraynow@gmail.com>

Hello Mr. Murray, The 16D is not being heard either at that time. A new date for your application will be assigned as soon as possible. Thank you for your prompt reply. Sincerely, Anne Anne Reid Department of Justice & Attorney General / Ministre de la justice & procureur gnral
Court Services - Administration Trial Division phone: fax: 453-2015 444-5675

++++++++++++++++++++++++++++++++++++++++++++
Reid, Anne (JUS) <Anne.Reid@gnb.ca> Mon, Jul 9, 2012 at 4:26 PM To: Andre Murray <andremurraynow@gmail.com>

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

44

Thank you, Anne Anne Reid Department of Justice & Attorney General / Ministre de la justice & procureur gnral
Court Services - Administration Trial Division phone: fax: 453-2015 444-5675

++++++++++++++++++++++++++++++++++++++++++++++
Andre Murray <andremurraynow@gmail.com> Mon, Jul 9, 2012 at 4:54 PM To: "Reid, Anne (JUS)" <Anne.Reid@gnb.ca>

July 9, 2012
Anne Reid Department of Justice & Attorney General / Ministre de la justice & procureur gnral
Court Services - Administration Trial Division phone: fax: 453-2015 444-5675

45

Dear Ann Reid, Regarding your e-mail correspondence of July 9, 2012, advising me that the Application FORM 16D scheduled to be heard July 13, 2012 and all Motions filed to that Application have been adjourned; therefore, I require an official document to this effect without delay, signed by the Clerk of the Court or the Judge issuing such Orders. I trust I have made myself clear on this matter. Please advise, without delay. Thank you. Sincerely without malice, aforethought, ill will, vexation, or frivolity . _____________ Andr Murray 31 Marshall Street, Fredericton, N.B E3A 4J8 andremurraynow@gmail.com

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Reid, Anne (JUS) <Anne.Reid@gnb.ca> Tue, Jul 10, 2012 at 9:29 AM To: Andre Murray <andremurraynow@gmail.com>

Mr. Murray, It is not the practice of the Court to provide anything other than notification to all

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parties when a matter has been adjourned by the Court. As indicated, a new date will be assigned. Nothing further will be forthcoming regarding the adjournment. Thank you, Anne Anne Reid Department of Justice & Attorney General / Ministre de la justice & procureur gnral
Court Services - Administration Trial Division phone: fax: 453-2015 444-5675

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