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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 Submission Filed by the Self Represented INTENDED APPELLANT Andr Murray
_____________________________________________________________________

Andr Murray

Solicitor for

Betty Rose Danielski

INTENDED APPELLANT (Plaintiff )


31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Telephone Number: (506) 472 - 0205 E-mail address:

INTENDED RESPONDENT (Defendant) Betty Rose


Danielski E. Thomas Christie, QC CHRISTIE LAW OFFICE

INTENDED RESPONDENT (Defendant)


Apt 603 166 Carlton Street Toronto, Ont. M5A 2K5

Andremurraynow@ gmail.com

Suite 306, 212 Queen Street Fredericton, New Brunswick Canada E3B 1A8 Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

PART 1 INDEX Book 1 PAGE A. PART I INDEX _____________________________________________ii

B. PART II STATEMENT OF FACTS ____________________________ 1 C. PART III - ISSUES _____________________________________________

1. 2. 3. 4. 5. 6. 7. 8. 9.

Questions for the Court to answer_________________________________ Introduction __________________________________________________ Final Order____________________________________________________ Rule 1.03 Interpretation_________________________________________ Rule 39.01 Evidence on Motions__________________________________ Rule 39.04 Service of Affidavits__________________________________ Rule 2.03 Attacking the Regularity of Proceedings____________________ Maxim -Audi Alteram Partem -Latin; literally 'hear the other side________ 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 OF STATUTES OR REGULATIONS _______________________________ G. SCHEDULE C LISTED AUTHORITIES FULL DISCISION CITED________________________________________ 1. Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 (CanLII) found at TAB.. 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)______________________________

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__________________________

B PART II STATEMENT OF FACTS 1. Intended Appellant (Plaintiff) Andr Murray did apply to the Court of Queens Bench of New Brunswick, Trial Division at Justice Building, 427 Queen Street, P.O. Box 6000 Fredericton, on the 10th day of June 2010 at 1:30 p.m.
for an order that:

a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, this action be continued until October 21, 2010 or further Order of this Court, b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of Court, c) That the Defendant pay costs of the within Motion, d) Such further and other relief as to this Honorable Court may appear just.
The Motion was dismissed, with no costs awarded. 2. Intended Appellant (Plaintiff) Andre Murray did receive a copy of the

Decision of Honorable Madame Justice Garnett, dated June 10, 2010, Court File Number: F/C/104/09 IN THE COURT OF QUEENS BENCH
OF NEW BRUNSWICK, TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON, by Fax from Court Services. 3. Intended Appellant (Plaintiff) Andre Murray did receive a Fax from Court Services including a cover page, Intended Appellant (Plaintiff) Andre

Murray did receive this fax on June 11, 2010 at 4:28 PM from Melinda Clarke of Court Services, regarding , Court File Number: F/C/104/09 Andre Murray v. Betty Rose Danielski.
4. Intended Appellant (Plaintiff) Andre Murray did receive a copy of the

Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009, which I Andre Murray did receive, in a Record on Motion from a previous hearing.
5. On June 17, 2010, Intended Appellant (Plaintiff) Andre Murray did attend the office location of Service New Brunswick, on Queen Street, Fredericton, N B. On this occasion I did cause to be printed Property Information Report for PID number 1548650 (2 pages). The noted civic address for these documents is Officially recorded as both 29 Marshall Street, and 31 Marshall Street, Fredericton, New Brunswick. 6. It is the belief of the Intended Appellant (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 or decision, 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. 7. 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 rather than reviewing and or examining evidentiary affidavit evidence material and or considering argument from the opposing parties to the Motion the Honorable Justice Adjourned the Hearing of the Motion for 15 minutes (which became one hour) for the purposes as instructed and as directed by the Honorable Justice that the Solicitor for the Defendant shall leave the Court room to search by telephone for the answers to the Madame Justices leading substantive questions. Note; up and until this point in the Hearing, Madam Justice continued to dominate the Hearing as all submissions on record were those of Madam Justice. Arguments from Plaintiffs or Defendants were not being allowed. The INTENDED APPELLANT Andre Murray (Plaintiff in that matter) stood perplexed at such an impugned contention that a Defendant to an action could possibly be directed to telephone two primary opponents to the success of the INTENDED APPELLANT Andre Murray (Plaintiff in that matter) furthermore, the incredulous and or implausible possibility that the return of the aforementioned from the adjournment and the probability of the resultant telephone enquiries being unbiased and or independent meritorious answers. The INTENDED APPELLANT (Plaintiff in that matter) stood before the aforesaid Honorable Court following the adjournment, further, The INTENDED APPELLANT listened as the Honorable Madam Justice subsequently, accepted the hearsay submissions of the returning Solicitor for the Defendant. The INTENDED APPELLANT trusts that this irregularity complained of mentioned and found here within is objectionable to such a degree as to be self evident the environment was being set for unfair Hearing. As mentioned, the meritorious quality or lack thereof, regarding hearsay must not be understated and consequently cannot be seriously considered as a means of securing a just determination of any matter. 8. 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 the just, least expensive and most expeditious determination of every proceeding on its merits in not taking into consideration the prejudice to the (Plaintiff in that matter) INTENDED APPELLANT Andre Murray by raising issues not argued by either party and
conversely the learned trial judge avoided considering all pledging filed as meritorious and or substantive by both parties to the Motion for orders including 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 of this Court Continuance . 9. 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 the just, least expensive and most expeditious determination of every proceeding on its merits in that the Madame Justice
in hearing the Plaintiffs AMENDED NOTICE OF MOTION (FORM 37A) Filed with 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, the

mechanics Lien Action be continued until October 21, 2010 or further Order of this Court. The Trial judge instead appeared and did entirely neglect to address the aforementioned requested order and instead addressed only the next order as listed b) 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 the
Court Hearing transcript and has commissioned a written transcript. Subsequentially, after listening to the aforementioned CD disk Transcript as provided by Court of Queens Bench, Fredericton Client Services, further, after a dozen listening reviews of said CD disk Transcript it is realized that INTENDED APPELLANT Andre Murray is not permitted to speak or counter claim as Madame Justice dominates the entire 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 Madame Justice instructed the Solicitor for the Defendant to gather hearsay information for which Madam Justice announced in advance of receiving the answers to her verbalized questions, that if the answers are, as Madam Justice expected, than, Madam Justice would consequentially rely on the hearsay answers returned to her following the adjournment and did in fact, render a decision of Motion Dismissed duration of second hearing, was nothing more than 11 minutes. NOTE: INTENDED APPELLANT Andre Murray is able near the end of the Hearing to briefly utter words to the effect that he requires his requested Order of

pursuant 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 Appellant Andre Murray, instead Madame Justice insisted on addressing only the matter of Extension of time pursuant to Rule

3.02.
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 directed otherwise by these rules or by order., The learned trial judge made the pivotal decision in hearing the said Motion dated the 10th day of June, 2010 of whether to allow a Extension of time pursuant to Rule 3.02 of the Rules of Court,

relying on inadmissible hearsay information, moreover as listed in that

Motion as orders sought first and primary was listed as the following provided immediately following which incidentally was continually ignored 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 further Order of this Court . 11. The learned trial judge erred in law in not Ordering an extended adjournment adequate so that admissible evidences of the requested information could be obtained by affidavit and served on the effected parties 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 shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing.

12. The learned Trial Judge erred in law, in irregularly applying the Courts Discretion to not Grant a Continuance according to section 52.1 (1) (b) of the Mechanics Lien Act. The Plaintiff INTENDED APPELLANT Andre Murray brings the Courts attention according to Rules of Court, Rule 2.03 Attacking the Regularity of Proceedings and considers that the learned Trial Judge improperly exercised, with prejudice, the Courts Discretion in arriving 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 the other side'). The maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person. The learned trial judge, would not allow the Plaintiff INTENDED APPELLANT Andre Murray to be heard and nor to address the Court and explain why the Court should not make the decision based on the new information proposed, and address why that reasoning was flawed based on the merits of facts found within documents filed within the file to be reviewed and considered during the very case before the Honorable Court. 14. The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra, in not considering documents filed by the Plaintiff INTENDED APPELLANT Andre Murray to address the fact that the Prospective purchaser, 501376 N.B. Ltd, a body corporate at the Mortgage Sale, had caused a contract to be signed, Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009 which specifically stated that the purchasers would honor all Liens in full on the date of delivery of the Deed to such 7

purchaser, furthermore since the Plaintiff (in the Motion questioned herein) and INTENDED APPELLANT Andre Murray(in this matter before 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 - INTENDED APPELLANT Andre Murray to draw the learned trial judges attention to the fact that the source of the pivotal information which the Madame Justice ultimately relied upon, was not Sworn to under Oath, and was hearsay information sourced from two Solicitors both with blatantly evident and potential conflicts of interest:
Intended Appellant (Plaintiff) Andre Murray very believe to be true that:

George LeBlanc vendor of the Investment Instrument Mortgagee Deed registered 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, a body corporate, who signed a Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009, regarding the very same 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, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser.
16. The learned trial judge erred in law in not recognizing the principal of law

expressed in the Maxim Audi Alteram Partem, vide supra consequentially, did not address the requested order as follows: 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 of this Court; furthermore, instead learned trial judge erred in law focusing primarily on the following requated order as listed b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of Court. NOTE: The Mortgage sale had not yet closed and at any time the tentative purchasers could back out of the Terms of Sale resulting in a new Mortgage auction or private sale of the property which is the same subject property of the Mechanics Lien action and Motion for which leave to Appeal is requested, furthermore, which such a possible and likely scenario could provide the subsequent Sale with the funds necessary for compensation of the

Intended Appellant Andre Murray(Plaintiff in that matter) in accordance with the subject Mechanics Lien Claim. 17. The learned Trial Judge erred in law in not recognizing the principal of law expressed in the maxim nemo judex in causa sua debet esse which underlies the doctrine of "reasonable apprehension of bias". The appellant contends that a reasonable apprehension of bias arose by the fact that the learned Trial Judge, announced the information required for the Court to come to a predictable decision favorable to the Defendant, then charge the Solicitor Thomas Christie for the Defendant to collect that vary same information, without questioning the validity or reliability of the same inadmissible hearsay information. 18. The learned Trial Judge erred in law in not recognizing the principal of law 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 error and was hearsay information sourced from the same Hugh Cameron acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed a Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009, regarding the very same property, which stated the purchaser agrees to pay any outstanding ..Liens,, at paragraph 10 reproduced in full below: 10. All real property taxes, water rates. liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser. 19. The trial judge erred in law in both requesting hearsay evidence from Solicitor Thomas Christie for the Defendant than accepting hearsay as evidence before the Honorable Court about the sale price without the use of Filed Affidavit Proof of Claim. The circumstances surrounding the entry into and on record of the hearsay Claims could not have the guarantee of trustworthiness necessary to allow their admission as evidence. NOTE: As this very same hearsay was being heard confusion as to the actual numbers and details required a correction and repetition of the Entry on Record. 20. The trial judge erred in law in admitting as evidence, hearsay statements by Solicitor Thomas Christie for the Defendant, offered to the Honorable Court regarding the outstanding amount owing to RBC - the vendors of the Investment Instrument Mortgagee Deed following a Notice of Mortgage Sale effecting the Property Sale. The information source was

the Solicitor for the Tentative purchaser of the Mortgagee Deed whose answer could have been made in error , possibly incorrectly heard over the telephone and or may have alluded to the advantage of his client. The circumstances surrounding the making of the impugned entries On Record did 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 the parties to the prejudice of the Plaintiff INTENDED APPELLANT Andre Murray. 22. The learned trial judge erred in law in demonstrating prejudice, deciding that the Motion and orders requested and found listed within same would not be entirely considered furthermore Madame Justice only permitted for review of certain predetermined criteria, being advanced by the Honorable Court, further addressing only one of the requested orders and not based on or permitting argument offered by either party to the action, nor was the aforementioned requested orders judged on the merits of all documents submitted and filed with Court of Queens Bench, furthermore, which were intended to be used as argument by the Plaintiff in that Motion and said denial was consequentially, to the prejudice of the INTENDED APPELLANT (same person)Andre Murray. 23. The trial judge erred in law in not Ordering an adjournment of sufficient time, that the answers to prescribed questions, as was requested by Madame Justice, would or could be properly obtained and properly Filed with the Honorable Court by affidavit than properly served on the effected parties 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 shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing. Which is to the prejudice of the Plaintiff INTENDED APPELLANT Andre Murray. 24. The trial judge erred in law in not ordering a Continuance based on the merits of submitted affidavit evidence and circumstances of the case. The duty of the court is to ensure, as much as is possible, that justice is done, it is most unfair to deprive the Plaintiff Andre Murray and INTENDED APPELLANT (in this matter) of a opportunity to plead on the record to reveal 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 the 10th day of June, 2010 pursuant to Rule 62.03? B. Should the Court grant a Continuance of the Mechanics Lien Action pursuant to section 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 of Court,
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 Trial Division 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 Paulette Garnet arrived at decisions in law based on erroneous information in which case the learned judge treated the erroneous information as fact. Hearsay was allowed to be entered as fact, the learned Judge instructed the Solicitors to

The following s from West's Encyclopedia of American Law, edition 2., published by Thomson 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 that party must be given time to prepare a response before the trial in order to prevent prejudice to his or her rights. A continuance may be granted for the accidental loss or destruction of papers in an action provided they cannot be readily replaced and the applicant for the continuance was not responsible for their loss. The trial judge erred in law in admitting as evidence, the hearsay statements obtained by Solicitor for the Defendant Thomas Christie. 11

A certain complicity and therefore evident bias was demonstrated by Madame Justice as the learned judge instructed Solicitor Thomas Christie as it was agreed between the Court/Bench and the Solicitor for the Defendant Thomas Christie that during an adjournment scheduled for fifteen minutes Solicitor Thomas Christie would than k nment he 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 between the Court Madame Justice Garnet and Solicitor Thomas Christie for the Defendant as directed by Court Madame Justice Garnet that the decision or outcome of the subject trial will hinge on if enough funds are currently left outstanding and sufficient enough to justify the extension as requested by Plaintiff Andre Murray. be left to determined the sale price o about the outstanding amount owing to RBC before the Auction of the associated investment instrument called a Mortgagee Deed. The information source was the Solicitor for the tentative purchaser of the property whose statement could have been made in error or purposefully misleading to the advantage of his client. The circumstances surrounding the making of the impugned statements did not have the guarantee 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 the case before the supreme Court and provide relevant insight into the reasonable apprehension of bias displayed by the actions and assertions of Honorable Madam Justice Paulette Garnet, the relevant section of R. v. S. (R.D.), [1997] 3 S.C.R. 484 is provided in the
following:

(1) Consideration of Supplementary Reasons Per curiam: The supplementary reasons issued by the Youth Court Judge after the appeal had been filed could not be taken into account in assessing whether her reasons gave rise to a reasonable apprehension of bias. (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. Judges must be particularly sensitive to the need not only to be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin. If actual or apprehended bias arises from a judges words or conduct, then the judge has exceeded his or her jurisdiction. This excess of jurisdiction can be remedied by an application to the presiding judge for disqualification if the proceedings are still underway, or by appellate review of the judges decision. 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 12

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. However, if the judges words or conduct, viewed in context, do not give rise to a reasonable apprehension 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 factual determinations made by lower courts, including findings of credibility, retain some scope to review that determination given the serious and sensitive issues raised by an allegation of bias. Impartiality can be described as a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to particular issues. Whether a decision-maker is impartial depends on whether the impugned conduct gives rise to a reasonable apprehension of bias. Actual bias need not be established because it is usually impossible to determine whether the decisionmaker approached the matter with a truly biased state of mind. 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 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. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. The test applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic. The requirement for neutrality does not require judges to discount their life experiences. Whether the use of references to social context is appropriate in the circumstances and whether a reasonable apprehension of bias

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arises from particular statements depends on the facts. A very significant difference exists between cases in which social context is used to ensure that the law 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 of credibility. Consideration of whether the existence of anti-black racism in society is a proper subject for judicial notice would be inappropriate here because an intervener and not the appellant put forward the argument with respect to judicial notice. The individualistic nature of a determination of credibility and its dependence on intangibles such as demeanour and the manner of testifying requires the judge, as trier of fact, to be particularly careful and to appear to be neutral. When making findings of credibility a judge should avoid making any comment that might suggest that the determination of credibility is based on generalizations or stereotypes rather than on the specific demonstrations of truthfulness or untrustworthiness that have come from the particular witness during the trial. At the commencement of their testimony all witnesses should be treated equally without regard to their race, religion, nationality, gender, occupation or other characteristics. It is only after an individual witness has been tested and assessed that findings of credibility can be made. Situations where there is no evidence linking the generalization to the particular witness might leave the judge open to allegations of bias on the basis that the credibility of the individual witness was prejudged according to stereotypical generalizations. Although the particular generalization might be well-founded, reasonable and informed people may perceive that the judge has used this information as a basis for assessing credibility instead of making a genuine evaluation of the evidence of the particular witness credibility. That judges should avoid making comments based on generalizations when assessing the credibility does not lead automatically to a conclusion of reasonable apprehension of bias. In some limited circumstances, the comments may be appropriate. The argument that the trial was rendered unfair for failure to comply with natural justice could not be accepted. Neither the police officer nor the Crown was on trial. Per La 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 in their decision-making process so long as those experiences are relevant, are not based on inappropriate stereotypes, and do not prevent a fair and just determination based on the facts in evidence.

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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 reasonable person must know and understand the judicial process, the nature of judging and the community in which the alleged crime occurred. He or she demands that judges achieve impartiality and will be properly influenced in their deliberations by their individual perspectives. Finally, the reasonable person expects judges to undertake an openminded, carefully considered and dispassionately deliberate investigation of the complicated reality of each case before them. Judicial inquiry into context provides the requisite background for the interpretation and the application of the law. An understanding of the context or background essential to judging may be gained from testimony from expert witnesses, from academic studies properly placed before the court, and from the judges personal understanding and experience of the society in which the judge lives 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 an important aid to judicial impartiality. The reasonable person approaches the question of whether there exists a reasonable apprehension of bias with a complex and contextualized understanding of the issues in the case. He or she understands the impossibility of judicial neutrality but demands judicial impartiality. This person is cognizant of the racial dynamics in the local community, and, as a member of the Canadian community, is supportive of the principles of equality. Before finding a reasonable apprehension of bias, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. Awareness of the context within which a case occurred would not constitute evidence that the judge was not approaching the case with an open mind fair to all parties; on the contrary, such awareness is consistent with the highest tradition of judicial impartiality. (3) Application of the Test Per La Forest, LHeureux-Dub, Gonthier and McLachlin JJ.: The oral reasons at issue should be read in their entirety, and the impugned passages should be construed in light of the whole of the trial proceedings and in light of all other portions of the judgment. They indicated that the Youth Court Judge approached the case with an open mind, used her experience and knowledge of the community to achieve an understanding of the reality of the case, and applied the fundamental principle of proof beyond a reasonable doubt. Her comments were based entirely on the case before her, were made after a consideration of the conflicting testimony of the two witnesses and in response to the Crowns submissions, and were entirely supported by the evidence. In alerting herself to the 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 just resolution of the case before her. Although the Judge did not make a finding of racism, 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 in evidence and of the context within which this case arose -- a context known to the judge and to any well-informed member of the community. Per Cory and Iacobucci JJ.: The Youth Court Judge conducted an acceptable review of all the evidence before making the impugned comments. The generalized remarks about a history of racial tension between police officers and visible minorities were not linked by the evidence to the actions of the police officer here. They were worrisome and came very close to the 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 an awareness of all the circumstances that a reasonable observer would be deemed to know. A reasonable, informed person, aware of all the circumstances, would not conclude that they gave rise to a reasonable apprehension of bias or that they tainted her earlier findings of credibility. The high standard for a finding of reasonable apprehension of bias was not met. Per Lamer C.J. and Sopinka and Major JJ. (dissenting): A fair trial is one that is based on the law and its outcome determined by the evidence, free of bias, real or apprehended. Evidence showing propensity has been repeatedly rejected. Trial judges must base their findings on the evidence before them. Notwithstanding the opportunity to do so, no evidence was introduced showing that this police officer was racist and that racism motivated his actions or that he lied. The Youth Court Judges statements were not simply a review of the evidence and her reasons for judgment in which she was relying on her life experience. Even though a judges life experience is an important ingredient in the ability to understanding human behaviour, to weighing the evidence and to determining credibility, it is not a substitute for evidence. No evidence supported the conclusions that the Judge reached. Her comments fell into stereotyping the police officer. Judges, as arbiters of truth, cannot judge credibility based on irrelevant witness characteristics. All witnesses must be placed on equal footing before the court. What the Judge actually intended by the impugned statements is irrelevant conjecture. Given the concern for both the fairness and the appearance of fairness of the trial, the absence of evidence to support the judgment is an irreparable 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 Honorable Madam Justice Paulette Garnet, finally disposes of, or substantially decides the rights of the parties, 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 Continuance according to Section 52.1(1)(b) of Mechanics' 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 to be discontinued one year after the action is commenced unless (a) the action has been set down for trial, or (b) an application has been made to a judge of The Court of Queens Bench of New Brunswick for an order continuing the action and a copy of the notice of application has 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, discontinues v.tr. 1. To stop doing or providing (something); end or abandon: discontinued her visits 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 of the Plaintiffs omitting to continue the process or proceedings by proper entries on the record. 3 Bl, Comm. 296; 1Tidd, Pr. 678; 2 Arch. Pr. K. B. 233.

17

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 a continuance, even a defaulted action, by no means puts an end to it, and actions may 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 an end to it, either by giving notice in writing to the Defendant before any step has been taken in the action subsequent to the answer or at any other time or by order of the court or judge. In practice, discontinuance and dismissal import the same things, viz., that the 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 Intended Appellant (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 or decision, 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 the determination of the threshold question of whether an order or decision is interlocutory or final: Decision

[7]

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

[8]

In this Province, the leading authority on point is Bourque 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 following approach to the determination of the threshold question at issue here, at pages 133-34:
13 In my opinion, the question whether an order or decision is interlocutory or final should be determined by looking at the order or decision itself, and its character is not affected by the nature of the order or decision which could have been made had a different result been reached. If the nature of the order or decision as made finally disposes of, or substantially decides the rights of the parties, it ought to be treated as a final order or

18

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

[9] The analytical framework articulated in Bourque has 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 CanLII 4070 (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 Turnbull J.A.; and Dougs Recreation Centre Ltd. et al. v. Polaris Industries Ltd. 2001 CanLII 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 be determined within that analytical framework.
The transcript of the subject Motion, to grant a Continuance of the mechanics Lien Action, 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 that the nature of the order or decision as made finally disposes of, 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. Im not quashing anything. You are asking me to exercise my discretion to give you an extension 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 is extinguished because my understanding of the Mechanics Lien Act is that within one year 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 the mechanics 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. It is a waste of this courts time. It is a waste of money. It is a waste of everything. The Royal bank of Canada has a priority lien against this property, and you are going to get zero from the property. You can sue Ms. Danielski, but nothing is going to come out of the property to you. And it makes no sense to give you the extension, and I am not giving it.

19

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 of Honorable Madame Justice Garnett finally disposes of, or substantially decides the rights of the subject parties, and it ought to be treated as a final order or decision.

The decision of Honorable Madame Justice Garnett, hearing Date of June 10, 2010, to not grant, as requested, an Order of Continuance pursuant to Section 52.1(1)(b) of Mechanics' Lien Act, finally disposes of, or substantially decides the rights of the parties to the action. Clearly, the merits of all evidence which had been appropriately filed with Court of Queens Bench, furthermore, for consideration by the Learned Judge hearing the matter, moreover, evidence of which was intended to be used in the argument and pleadings 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 on record. Referencing Section 52.1(1)(b) of Mechanics' Lien Act, as the following clearly states any subsequent Court Decision to not grant any requested continuance of the Mechanics
Lien 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, determine that the lower Court decision of Honorable Madame Justice Garnett is interlocutory, the Intended Appellant Andre Murray shall seek to provide further legal reason to grant leave to appeal. Leave to Appeal required In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.) Supra, Honorable Justice J. ERNEST DRAPEAU, J.A. offered the following, when considering whether to grant leave to appeal from a interlocutory Order or Decision:

[11] granted unless:


(a)

Rule 62.03(4) provides that leave to appeal shall not be


there is a conflicting decision by another judge or court upon a question involved in the proposed appeal and, in the opinion of the judge hearing the motion, it is desirable that leave to appeal be granted,

20

(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 appeal involves matters of such importance that leave to appeal should be granted.

[14]

Neither this Court nor the Supreme Court of Canada has considered the questions of law raised by Mr. MacArthur. While I am not persuaded that Justice McLellans decision is wrong, I do entertain a doubt of the kind contemplated by Rule 62.03(4)(b). That being so, does leave to appeal automatically follow?

[15]

In Breen v. MacIntosh, [2001] N.B.J. No. 226 (C.A.), at para. 6, I expressed the view that satisfaction of one or more of the conditions found in Rule 62.03(4) did not, by itself, compel the issuance of an order granting leave to appeal. I went on to add that Rule 62.03(4) vests in the judge hearing the motion a residual discretion to deny leave even where one or more of the preconditions have been satisfied. I remain firmly committed to that view.

[16]

The meaning and effect of Rule 62.03(4) must be ascertained on the basis of its wording and the Rules of Court as a whole. Needless to say, the Rule should be interpreted in a commonsensical manner and with a view 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.), at para. 35.

[17]

While it is true that clauses (a) and (c) feature an explicit preservation of judicial discretion and clause (b) does not, the wording of the opening phrase in Rule 62.03(4) suggests that all three clauses are mere conditions precedent to the judges jurisdiction to grant leave to appeal. The Rules 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, to clauses (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 or court upon a question involved in the proposed appeal and, in the opinion of the Court, it is desirable that leave to appeal be granted, the Court doubts the correctness of the order in question,

(b)

(c)

the Court considers that the appeal involves matters of such importance that leave to appeal should be granted, or

(d)

the Court considers that the nature of the issue is such 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 the Newfoundland & Labrador Rule feature, like the corresponding clauses in our 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 & Labrador Rule did not see any incompatibility between the wording of clauses (a) and (c) and a general judicial discretion to deny leave. In Business Development Bank of Canada v. White Ottenheimer & Baker 2002 NFCA 10 (CanLII), (2002), 209 Nfld. & P.E.I.R. 167 (C.A.), Cameron J.A., who delivered the Courts reasons for judgment, observed, at para. 2, that even if one or more of the factors are present, the Court still has the discretion to refuse to hear an 22

appeal prior to the completion of the trial. See, as well, White v. True North Springs 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 Court as a whole. Rules 1.03(2) and 62.21(6) play an important role in the interpretative exercise required here. Rule 1.03(2) directs courts to liberally construe the rules to secure the just, least expensive and most expeditious determination of every proceeding on its merits. Rule 62.21(6) provides that [a]n interlocutory order or decision from which there has been no appeal shall not operate to prevent the Court of Appeal from rendering any decision or making any order.

[21]

Interlocutory orders and decisions vary greatly in terms of their relative importance within the litigation process and todays contested interlocutory order or decision may well be entirely moot tomorrow. One can easily imagine a situation where the judge hearing the motion might doubt the correctness of the impugned interlocutory order or decision but conclude that granting leave to appeal would not be conducive to the just, least expensive and most expeditious determination of the proceedings on its merits. Indeed, circumstances may arise where granting leave to appeal because of some doubt as to the correctness of the interlocutory order or decision might well work against the best interests of the administration of justice.

[22]

In my view, Rule 62.03(4) does not obligate the judge hearing the motion to grant leave just because one or more of the conditions contained in clauses (a), (b) and (c) have been met. The judge retains a residual discretion to deny leave where such an outcome would be in the best interests of justice. Any other interpretation would fail to give effect to the wording of the opening phrase in Rule 62.03(4) and the significant safeguard provided 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. I would add that if the drafters of Rule 62.03(4) had intended to strip the judge of any residual discretion in the exercise of his or her jurisdiction under Rule 62.03(4), they could and likely would have employed clear wording to that end.

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[23]

Factors such as the relative importance of the interlocutory order or decision in the litigation process and the repercussions of granting leave come into play in the exercise of that residual discretion. As Cameron J.A. noted in Business 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 the interest of the appellant in having the matter resolved immediately.

[24]

Justice McLellans decision appears to be quite significant in terms 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 is not completed. Finally, there is no evidence that an order granting leave to appeal might cause prejudice of a serious nature to any party. The cumulative effect 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 $750 payable by the plaintiff, S. Bransfield Limited, to the defendant, Gordon MacArthur.

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

A 1. Leave to appeal shall not be granted unless Rule 62.03(4) (a) there is a conflicting decision by another judge or court upon a question involved in the proposed appeal and, in the opinion of the judge hearing the motion, it is desirable that leave to appeal be granted,

B 2. Leave to appeal shall not be granted unless Rule 62.03(4) (b) the judge hearing the motion doubts the correctness of the order or decision in question. The impugned decision in question was based on a misapprehension of the facts, the pivotal information the Court relied on was hearsay unsubstantiated information which

24

the criterion of reliability had not been met, the Court made the subject decision based on arguments not advanced by either party and the Court did not allow the Plaintiff to address 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 there has been a breach of natural justice or procedural fairness, the Honorable Appellant Court should grant leave to appeal to set aside the decision of the Lower Court. Where a breach of fairness is found to result from a reasonable apprehension of bias, the standard is particularly 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 fair hearing should always render a decision invalid, whether or not it may appear to a reviewing Honorable Appellant Court that the hearing would likely have resulted in a different 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 justice which any person affected by a judicial decision is entitled to have. The learned Trial Judge has made mistake, clearly against reason, evidence and against established law during the subject hearing of a motion for a continuance of a Mechanics Lien Action and as a consequence Intended Appellant (Plaintiff) Andre Murray did not get a fair trial. Impartiality is a principle of justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons. The learned trial judge showed bias, and prejudice in deciding the matter before the Court. The learned trial judge denied Intended Appellant (Plaintiff) Andre Murray a chance to tell his side of the matter and add information critical to the learned trial 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. Consequently, the error made by the learned Trial judge, which was the presumption that the tentative sale of the Mortgage had already concluded, played an essential role in the reasoning process that resulted in a unfair biased decision of the Court. The learned trial judge misapprehended the material presented to the Court by excluding all submitted documents and instead requesting information not offered by either party, prejudice deciding what course the hearing was to take and thereby demonstrating a reasonable apprehension of bias and therefore committing an error of law. Based upon an examination of the trial transcript, the learned trial judge was mistaken as to the reasoning that there was no money left in the property to satisfy the Mechanics

25

Lien and that this error played an essential part in her reasoning that there was point in continuing 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, to illustrate the incorrectness of the subject Decision of the Court, dated the 10th of June 2010. C Leave to appeal shall not be granted unless Rule 62.03(4) (c) the judge hearing the motion considers that the appeal involves matters of such importance that leave to appeal should be granted. After the Plaintiff filed the Claim for Lien and Notice of Action, the Defendant has created the situation where, a without Notice to the Plaintiff Mortgage sale of the subject property took place July 16, 2009. The Plaintiff was caused to be evicted, by Order of the Court, from a ex parte hearing October 20th, 2009, held in Moncton Trial Division, which caused the Necessary Contract Documents required by the Plaintiff to pursue the Mechanics Lien Action to be inaccessible, 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 Trial Division, Judicial District of Moncton, to regain access to 29 Marshall Street, attempting to have access to the necessary documents granted by the Moncton Trial Division Court, but these actions have been frustrated by the Solicitors requesting many adjournments unduly 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 Lien on Property. The prospective purchasing company who had successfully bid at a Mortgage Auction, held July 16, 2009 has only made a $8,000 deposit on the subject property, which the sale has not yet closed, who could back out at any time, has also signed a contract Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009, regarding the very same property, which stated the purchaser agrees to pay any outstanding ..Liens,, at paragraph 10 reproduced in full below: 10. All real property taxes, water rates. liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser. The loss of the Lien means a loss of opportunity to have the tentative purchaser pay the outstanding Lien.

26

If the decision stands the Plaintiff will have to pursue the Defendant Betty Rose Danielski who lives on Toronto Ontario personally for breach of contract with a minimal chance of ever 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, he may nevertheless recover a personal judgment against any party to the action for such sum as may appear to be due to him, and that he might recover in an action against such party.

For the Intended Appellant Andre Murray to recover a personal judgment, by pursuing Betty Rose Danielski in Contract, will most likely be a completely separate action and most likely be a futile endeavour. The Intended Appellant Andre Murray considers that the subject appeal involves matters of importance, that leave to appeal should be granted, the loss of this opportunity to recover a $80,000 investment by the Intended Appellant Andre Murray, should not have been decided under the circumstances that as it was. The learned Trial Judge showed bias, and prejudice in deciding the matter presented before the Court. The learned trial judge denied Intended Appellant (Plaintiff) Andre Murray a chance to tell his side of the matter and add information critical to the learned trial 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 the long term sense of maintaining the integrity of, and public confidence in, the justice system. One must ask whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the results of this ruling. Also, one must ask whether a reasonable person, informed of all relevant circumstances in the case, aware of all the submitted material and also aware of the relevant information that was denied to be heard by the Learned Trial Judge, would conclude, that the decision, 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: 1fair Pronunciation: \ fer\ Function: adjective

27

Etymology: Middle English fager, fair, from Old English fger; akin to Old High German fagar beautiful Date: before 12th century 6 a : marked by impartiality and honesty : free from self-interest, prejudice, or favoritism <a very fair person to do business with> b (1) : conforming with the established rules : allowed (2) : consonant with merit or importance : due <a fair share> c : open to legitimate pursuit, attack, or ridicule <fair game> The Meriam Webster Online Dictionary defines fair as an action marked by impartiality and honesty. It involves acting without prejudice, favoritism or self interest. Fairness is then a cardinal principal that a civilized society should advocate.
Natural justice requires that administrators adhere to a fair decision-making procedure. There are two primary rules of natural justice. The hearing rule is that people who will be affected by a proposed decision must be given an opportunity to express their views to the decision maker. The bias rule is that the decision maker must be impartial and must display no reasonable apprehension of bias. Justice must not only be done, but must be seen to be done.

Bias of the decision maker can be real or merely perceived. The test was first stated in Committee 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 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." p. 394 In Canadian law, a reasonable apprehension of bias is a legal standard for disqualifying judges and administrative decision makers for bias. In the struggle toward a just society, there should be concerted efforts to guard against any form of abuse as this would constitute a violation of a right to a fair trial. The administration of justice would be brought into disrepute if this decision is allowed to stand. 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 to maintaining the integrity of, and public confidence in, the justice system. Public confidence of Court can only be maintained when the public can see that the decision made by primary decision makers, that affect individuals and organizations are the right ones.

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-=-=-=-=-=-=-=-=-=-=-=-=== 4) Rule 1.03 Interpretation


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

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

The fair and proper administration of Justice in New Brunswick, require the Court of Queens Bench Trial Division to apply the Rules of Court, for a determination of every proceeding on its merits. Dismissing a person's Motion for a Continuance causes serious prejudice to any litigant and this power should be exercised with great caution and, where circumstances 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, APPLICATION AND INTERPRETATION 1.02 Application These rules apply to all proceedings in the Court of Queens Bench and the Court of Appeal unless some other procedure 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 as follows:
CITATION, APPLICATION AND INTERPRETATION 1.03 Interpretation 1.03 (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits.

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 the just, least expensive and most expeditious determination of every proceeding on its merits, by not taking into consideration the prejudice caused against the (Plaintiff in that matter) INTENDED APPELLANT Andre Murray by not rendering a Judgment on the merits 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 contemplation of the Courts decision, all the pleadings and records filed as meritorious and or 29

substantive, by both parties to the Motion, for Orders including 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 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:

MERITS merits. 1. The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure <trial on the merits>. 2.EQUITY(3) <on questions of euthanasia, the Supreme Court has begun to concern itself with the merits as well as the law>.

The rules of Court 1.03 (2) states These rules shall be liberally construed, so let us define Construed.
Black's Law Dictionary (8th ed. 2004) defines Construe as follows:

CONSTRUE construe (k<<schwa>>n-stroo), vb. To analyze and explain the meaning of (a sentence or passage) <the court construed the language of the statute>.

let us define Just.


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

JUST just,adj. Legally right; lawful; equitable

When viewed in this language the Rule 1.03 (2) reads: These rules shall be liberally construed (analyzed and the meaning of explained ) to secure the just (Legally right; lawful; equitable), least expensive and most expeditious determination of every proceeding on its merits (The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, 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: 1merit Pronunciation: \?mer_?t, ?me_r?t\ Function: noun Etymology: Middle English, from Anglo_French merite, from Latin meritum, from neuter of meritus, past participle of mere_re to deserve, earn; akin to Greek meiresthai to receive as one's portion, meros part

30

Date: 14th century 1 a obsolete : reward or punishment due b : the qualities or actions that constitute the basis of one's deserts c : a praiseworthy quality : virtue d : character or conduct deserving reward, honor, or esteem; also : achievement 2 : spiritual credit held to be earned by performance of righteous acts and to ensure future benefits 3 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 based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome. Example: An attorney is two days late in filing a set of legal points and authorities in opposition to a motion to dismiss. Rather than dismiss the case based on this technical procedural deficiency, the judge considers the case "on the merits" as if this mistake had not occurred. (PART II STATEMENT OF FACTS, number 7, supra) 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 rather than reviewing and or examining evidentiary affidavit evidence material and or considering argument from the opposing parties to the Motion the Honorable Justice Adjourned the Hearing of the Motion for 15 minutes (which became one hour) for the purposes as instructed and as directed by the Honorable Justice that the Solicitor for the Defendant shall leave the Court room to search by telephone for the answers to the Madame Justices leading substantive questions. Note; up and until this point in the Hearing, Madam Justice continued to dominate the Hearing as all submissions on record were those of Madam Justice. Arguments from Plaintiffs or Defendants were not being allowed. The INTENDED APPELLANT Andre Murray (Plaintiff in that matter) stood perplexed at such an impugned contention that a Defendant to an action could possibly be directed to telephone two primary opponents to the success of the INTENDED APPELLANT Andre Murray (Plaintiff in that matter) furthermore, the incredulous and or implausible possibility that the return of the aforementioned from the adjournment and the probability of the resultant telephone enquiries being unbiased and or independent meritorious answers. The INTENDED APPELLANT (Plaintiff in that matter) stood before the aforesaid Honorable Court following the adjournment, further, The INTENDED APPELLANT listened as the Honorable Madam Justice subsequently, accepted the 31

hearsay submissions of the returning Solicitor for the Defendant. The INTENDED APPELLANT trusts that this irregularity complained of mentioned and found here within is objectionable to such a degree as to be self evident the environment was being set for unfair Hearing. As mentioned, the meritorious quality or lack thereof, regarding hearsay must 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 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 the just, least expensive and most expeditious determination of every proceeding on its merits in not taking into consideration the prejudice to the (Plaintiff in that matter) INTENDED APPELLANT Andre Murray by
raising issues not argued by either party and conversely the learned trial judge avoided considering all pleadings filed as meritorious and or substantive by both parties to the Motion for orders including 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 of this Court
Continuance .

(PART II STATEMENT OF FACTS, number 9, supra) 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 the just, least expensive and most expeditious determination of every proceeding on its merits in that the Madame Justice in hearing the
Plaintiffs AMENDED NOTICE OF MOTION (FORM 37A) Filed with 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, the mechanics Lien Action be continued until October 21, 2010 or further Order of this Court. The Trial judge instead appeared and did entirely neglect to address the aforementioned requested order and instead addressed only the next order as listed

b) 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 the Court Hearing transcript and has commissioned a written transcript. Subsequentially, after listening to the aforementioned CD disk Transcript as provided by Court of Queens Bench, Fredericton Client Services, further, after a dozen listening reviews of said CD disk Transcript it is realized that INTENDED APPELLANT Andre Murray is not permitted to speak or counter claim as Madame Justice dominates the entire 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 Madame Justice instructed the Solicitor for the Defendant to gather hearsay information for which Madam Justice announced in advance of receiving the answers to her verbalized questions, that if the answers are, as Madam Justice expected, than, Madam Justice would consequentially rely on the hearsay answers returned to her following the adjournment

32

and did in fact, render a decision of Motion Dismissed duration of second hearing, was nothing more than 11 minutes. NOTE: INTENDED APPELLANT Andre Murray is able near the end of the Hearing to briefly utter words to the effect that he requires his requested Order of pursuant 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 Appellant Andre Murray, instead Madame Justice insisted on addressing only the matter of

Extension of time pursuant to Rule 3.02. The learned trial judge erred in law in not keeping with the general direction contained in the New Brunswick Rules of court Rule 1.03(2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits by instead pursuing least expensive and most expeditious determination of the proceeding, to the prejudice of the Plaintiff INTENDED APPELLANT Andre Murray, without balancing the need to secure a fair, just and balanced determination of this subject proceeding, based on the MERITS. The Plaintiff has proceeded, through great hardship to follow the Rules of Court and the Mechanics Lien Act requirements, to bring forward this Mechanics Lien Action to secure a investment in the Marshall Street Property. The Plaintiff has met all the required filing timelines (as explained at length in section 7 to 10, page 23 to 32 of the Court of Queens Bench, (file number F/C/104/09) Plaintiffs submission) and justly seeks a fair opportunity to present the documented evidence to the Court for consideration so the matter may be finally decided on its merits. The transcript of the subject Motion, to grant a Continuance of the Mechanics Lien Action, 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 actual complete circumstance of the matter before the court, where on no consequence in the Courts decision, beginning at page 11, line 12:
THE COURT: ..Okay. Now, the Mortgage takes priority over the lien with respect to all monies advanced before the lien was filed, which means that the plaintiff, if he were 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 against the 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 that the mortgage sale that took place in July had a prospective purchaser who paid a deposit for purchasing the property, and the sale has not closed. So the sale is not final. The, the prospective purchaser THE COURT: It doesnt matter, Mr. Murray. No matter what happens to this property the 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 before you 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 happened yet, we cannot consider it a done deal because the prospective purchaser may back out on that deal. The property may be put back up for option or for auction, and the sale might happen a second time for a much higher value which means that my, my lien may be covered. Theres a potential there and it would be an extreme prejudice to the Plaintiff in 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. Im not quashing anything. You are asking me to exercise my discretion to give you an extension 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 is extinguished because my understanding of the Mechanics Lien Act is that within one year 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 the mechanics 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. It is a waste of this courts time. It is a waste of money. It is a waste of everything. The Royal bank of Canada has a priority lien against this property, and you are going to get zero from the property. You can sue Ms. Danielski, but nothing is going to come out of the property to you. And it makes no sense to give you the extension, and I am not giving it. 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 circumstances surrounding the subject mechanics Lien action. In the submitted transcript of the subject

34

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

THE COURT: Let the record show that I have read all the documents that have been filed,. Some of the circumstances, surrounding the unusual delay in moving the Mechanics Lien Action forward where expressed below in a letter to E. Thomas Christie, QC Solicitor
for Betty Rose Danielski Dated May 31, 2010 which was included with the Record on Motion TAB 33 submitted to the Court of Queens Bench Trial Division, Judicial District of Fredericton as 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, QC CHRISTIE LAW OFFICE

Suite 306, 212 Queen Street Fredericton, New Brunswick Canada E3B 1A8 Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

35

Solicitor for BETTY ROSE DANIELSKI

Also
TO: BETTY ROSE DANIELSKI Apt 603 166 Carlton Street Toronto, Ont. M5A 2K5 Dear E. Thomas Christie, Regarding Andre Murray v. Betty Rose Danielski Many documents required to resolve the subject Mechanics' Lien Action regarding Andre 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 the property pursuant to a Court Order issued from Court of Queens Bench, Moncton Trial Division of October 20, 2009. Furthermore, the Court issued Orders to Vacate resulted from hearing of the Notice of Motion requested by Solicitor George H. LeBlanc acting on 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 legal standing before the Honorable Courts of Queens Bench, New Brunswick, are being withheld by Solicitor George H. LeBlancs denial of access, to 29 Marshall Street Fredericton New Brunswick, as has been requested in writing and verbally, both in person and by telephone conversation between Andr Murray and Solicitor George H. LeBlanc. Regrettably, to date, Andre Murray must report that George H. LeBlanc, acting Solicitor for the Royal Bank of Canada, further, which financial institution is currently holding an investment interest in the subject property 29 Marshall Street Fredericton New Brunswick by way of a Mortgagee Deed, appear disagreeable and non responsive to the many attempts made by vacated Residential Tenant Andre Murray and his attempts to regain 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 been frustrated by the numerous Notices of Motion and the subsequent relative Court Files of Motions for Orders of Adjournment of same Court Actions brought in the first place by Solicitor George H. Leblanc, acting for Royal Bank of Canada, the Mortgagee of subject property. Kindly consider that since the October 20th, 2009, Ex Parte Hearing of a Royal Bank of Canada Motion to the Honorable Courts requesting Orders to vacate Residential Tenant from 29 Marshall Street, Fredericton, furthermore, since Residential Tenant Andre

36

Murray was the alleged victim an illegal and unlawful eviction from 29 Marshall Street, Fredericton Andre Murrays Motion to Rescind the Orders of the Court of Queens Bench, Moncton Trial Division, New Brunswick, Dated October 20th, 2009, has been responded to by George H. LeBlanc, acting Solicitor for the Royal Bank of Canada by Motions followed by George H. LeBlanc subsequently Filing with Court of Queens Bench Motions for Adjournments regarding the hearing of same. Because of the adverse conditions, subsequently created by the Royal Bank of Canadas non compliance to Plaintiff Andre Murrays legitimate requests for access to civic address 29 Marshall Street for retrieval of documents essential to this matter regarding his Claim for Lien, Registered with Service New Brunswick, against Property bearing civic address 29 Marshall Street, and 31 Marshall Street, Fredericton, New Brunswick and therefore notwithstanding the aforementioned circumstances found elaborated here within, consequently Plaintiff Andre Murray has no alternative than to request a Continuance of this matter, pursuant to section 52.1 (1) (b) of the Mechanics' Lien

Act.
I trust the following clearly outlines my position and should you require further confirmation, Plaintiff Andre Murray is at your convenience, and will reply same day to all correspondence arriving before noon by e-mail to andremurraynow@gmail.com next day if by Registered Mail to 31 Marshall Street, Fredericton, NB, E3A 4J8. Kindly, please advise if your client Betty Rose Danielski consents to a continuance, regarding the Court File Number: F/C/104/09, pursuant to section 52.1 (1) (b) of the

Mechanics' Lien Act, that this action be continued until October 21, 2010 or further Order of this Court.
I would appreciate your response as soon as is convenient for you. As, a prompt response will avoid any unnecessary expense associated with costs of physically appearing before the Honorable Court. to respond or address the request of a continuance in regard to the Mechanics' Lien. If you could confirm in writing, the consent of your client Defendant Betty Rose Danielski to the following request of a Continuance, Plaintiff Andre Murray would advise the Court and move to obtain a Consent Order. Kindly, should you find it convenient to at this time provide a alternative schedule for the hearing of this matter, please be advised I will attempt to reschedule a Continuance of this matter at your convenience. Assuming you find the following agreeable. Yours very truly, Andre Murray DATED at Fredericton, New Brunswick this. . . . . . . . . day of . . . . . .. . . . . . , 2010. ............................

ANDRE MURRAY
Name of plaintiff: ANDRE MURRAY

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Address for service within New Brunswick:

31 Marshall Street Fredericton, N.B. E3A 4J8 andremurraynow@gmail.com Had the Court read all the submitted documents, which the record shows, then the court also would have been aware of the Tenancy of Plaintiff Andr Murray, expressed in paragraph 3, 4 and 8 of the Plaintiff Submission, B PART II STATEMENT OF FACTS, PAGE 1 and 2:
25. Plaintiff Andr Murray has since the year 2005, been a Leaseholder and Residential Tenant of the above, here within (paragraph 2) mentioned duplex and has according to his Lease occupied both civic addresses for the said duplex 29 and 31 Marshall Street at the City of Fredericton, County of York and Province of New Brunswick. 26. Defendant in the matter before this Honorable Court Betty Rose Danielski has since year 2005 been the Landlord of Plaintiff Andr Murray and currently is a Leaseholder of the above mentioned duplex both civic addresses 29 and 31 Marshall Street at the City of Fredericton, County of York and Province of New Brunswick.

Page 2
8. Plaintiff Andr Murray is a Residential Tenant of Landlord and herein named Defendant of this Motion for a Continuance, Defendant Betty Rose Danielski.

The Court made no reference to the Lease or the unusual circumstances surrounding the matter before the court except for a passing mention, as can be seen in the submitted
transcript of the subject Motion, to grant a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick, on page 10, line 23:

THE COURT ..On October the 20th - -this is 2009 - - the plaintiff was ordered to vacate the property. On November 26th, 2009 the defendant filed a notice of Intent to Defend along with a demand for particulars. On December the 8th2009 there was a hearing before the court of Appeal in which the plaintiff sought leave to appeal the order that was made in the Moncton Court on October 20th, 2009. The leave to appeal was not granted, however the Court of Appeal note that the Order related only to 29 Marshall Street. So the plaintiff moved back into the property at whatever the other number is. . It is the Plaintiff Andr Murrays position that the Court abused its discretion in this matter. The display of bias, the want of the Court to end the mater quickly as opposed to fairly, the making rulings on questionable hearsay evidence and to deny The Plaintiff Andre Murray a chance to tell his side of the matter is an Abuse of the Courts discretion. Black's Law Dictionary (8th ed. 2004) defines Abuse of discretion as follows: 38

ABUSE OF DISCRETION abuse of discretion. 1. An adjudicator's failure to exercise sound, reasonable, and legal decision-making. 2. An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence. See DISCRETION. [Cases: Appeal and Error 946; Criminal Law 1147. C.J.S. Appeal and Error 772.]

Abuse of discretion is define at the following address: http://legal-dictionary.thefreedictionary.com/Abuse+of+Discretion abuse of discretion n. a polite way of saying a trial judge has made such a bad mistake ("clearly against reason and evidence" or against established law) during a trial or on ruling on a motion and that a person did not get a fair trial. A court of appeals will use a finding of this abuse as a reason to reverse the a previous court result. Examples of "abuse of discretion" or judges' mistakes include not allowing an important witness to testify, making improper comments that might influence a jury, showing bias, or making rulings on evidence that deny a person a chance to tell his or her side of the matter. This does not mean a trial or the judge has to be perfect, but it does mean that the judge's actions were so far out of bounds that someone truly did not get a fair trial. Sometimes the appeals courts admit the judge was wrong, but not wrong enough to have influenced the outcome of the trial, often to the annoyance of the losing party. In criminal cases abuse of discretion can include sentences that are grossly too harsh. In a divorce action, it includes awarding alimony way beyond the established formula or the spouse's or life partner's realistic ability to pay. Encyclopedia.com defines abuse of discretion at the following address: (http://www.encyclopedia.com/doc/1G2-3437700045.html) ABUSE OF DISCRETION A failure to take into proper consideration the facts and law relating to a particular matter; anarbitraryor 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 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. For example, the traditional standard of appellate review for evidence_related questions arising during trial is the "abuse of discretion" standard. Most judicial determinations are made based on evidence introduced at legal proceedings. Evidence may consist of oral testimony, written testimony, videotapes and sound recordings, documentary evidence such as exhibits and business records, and a

39

host of other materials, including voice exemplars, handwriting samples, and blood tests. Before such materials may be introduced into the record at a legal proceeding, the trial court must determine that they satisfy certain criteria governing the admissibility of evidence. At a minimum, the court must find that the evidence offered is relevant to the legal proceedings. Evidence that bears on a factual or legal issue at stake in a controversy is considered relevant evidence. The relevancy of evidence is typically measured by its probative value. Evidence is generally deemed probative if it has a tendency to make the existence of any material fact more or less probable. Evidence that a murder defendant ate spaghetti on the day of the murder might be relevant at trial if spaghetti sauce was found at the murder scene. Otherwise such evidence would probably be deemed irrelevant and could be excluded from trial if opposing counsel made the proper objection. During many civil and criminal trials, judges rule on hundreds of evidentiary objections lodged by both parties. These rulings are normally snap judgments made in the heat of battle. Courts must make these decisions quickly to keep the proceedings moving on schedule. For this reason, judges are given wide latitude in making evidentiary rulings and will not be over_turned on appeal unless the appellate court finds that the trial judge abused his or her discretion. For example, in a negligence case, a state appellate court ruled that the trial court did not abuse its discretion by admitting into evidence a posed accident_scene photograph, even though the photograph depicted a model pedestrian blindly walking into the path of the driver's vehicle with the pedestrian's head pointed straight ahead as if she was totally oblivious to the vehicle and other traffic. Gorman v. Hunt, 19 S.W.3d 662 (Ky. 2000). In upholding the trial court's decision to admit the evidence, the appellate court observed that the photograph was only used to show the pedestrian's position relative to the vehicle at the time of impact and not to blame the pedestrian for being negligent. The appellate court also noted that the lawyer objecting to the photograph's admissibility was free to remind the jury of its limited relevance during cross_examination and closing arguments. An appellate court would find that a trial court abused its discretion, however, if it admitted into evidence a photograph without proof that it was authentic. Apter v. Ross, 781 N.E.2d 744 (Ind.App. 2003). A photograph's authenticity may be established by a witness's personal observations that the photograph accurately depicts what it purports to depict at the time the photograph was taken. Ordinarily the photographer who took the picture is in the best position to provide such testimony.

40

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

contained 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 in not taking into consideration the prejudice to the Plaintiff INTENDED APPELLANT Andre
Murray by raising an issue not argued by either party

In Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Justice H. H. McLellan stated his view regarding the discretion of the Trial Judge and also his view that the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits as follows:
[Page 6]

Discretion of Trial Judge The law has long recognized that a trial judge has a wide discretion in such matters. The traditional rule was stated as follows by Sopinka and Lederman, The Law of Evidence in Civil Cases, 1974, at p. 541 as follows: The trial judge has a wide discretion to permit further evidence to be adduced, either for his own satisfaction or where the interest of justice requires it. The discretion is exercised by trial judges in many different situations and for different reasons. The classic statement of that rule is in Walls v. Atcheson (1826), 2 C. & P. 268 at p. 269, 172 E.R. 121. In that English case the discretion of the trial judge in such matters was recognized by Best, C.J. in the following words: . . . it is better not to lay down any particular rule, but to leave it to the discretion of the Judge who tries a cause, under the particular circumstances, to admit or not admit what may be material. In this province many cases also recognize that trial judges have the discretion to allow evidence to be introduced after a party has closed its case, including the old decisions Scribner v. MLaughlin (1849), 6 N.B.R. 379, at p. 384 and Seeds v. Connoly (1856), 8 N.B.R. 337, a decision of Carter, C.J. The headnote of Seeds v. Connoly summarizes the rule in that decision as follows:
[Page 7]

It is discretionary with the [trial] Judge . . . to admit evidence at any time during the trial, even after counsel has addressed the jury, and the Court [of Appeal] will not interfere if the evidence is not in itself inadmissible, or no injustice has been done.

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In very recent years that classic traditional discretion of trial judges has been referred to by some New Brunswick judges in passing as if the discretion is now encrusted with a number of substantial qualifications. For example in Bank of Nova Scotia v. J. & L. Construction Ltd. et al. (1978), 26 N.B.R. (2d) 680 at p. 682 where Mr. Justice Stevenson said: While it is unusual to allow a case to be reopened after argument, the rule against it is not inflexible and the court has a discretion to allow it. In Workers' Compensation Board v. Atlantic Speedy Propane et al. reflex, (1989), 96 N.B.R. (2d) 108 at pp. 115-116 Chief Justice Stratton speaking for the Court of Appeal was also very hesitant in recognizing that traditional discretion of a trial judge and said:
While there is no express provision in the Rules of Court empowering a trial judge to receive further evidence, it has been held he has a discretionary power to do so either (a) for his own satisfaction or (b) where justice requires it. But leave to receive further evidence should not be granted except for the most compelling reasons: see Workmens' Compensation Board et al. v. McCarthy et al. (1981), 37 N.B.R. (2d) 185; 97 A.P.R. 185 (N.B.Q.B.T.D.); (1983), 42 N.B.R. (2d) 160; 110 A.P.R. 160 (N.B.C.A.).

At trial in McCarthy Mr. Justice Miller also made the following point at pages 188-189:
[Page 8]

As with all discretionary powers, leave to call additional evidence should not be granted except for the most compelling reasons. Chaos in the trial procedure would result if such procedures were regularly followed.

I have not been referred to, nor have I found, a case where a trial judge has admitted further evidence as to damages after the completion of the trial. One of the reasons for this reluctance to permit a case to be reopened appears in Parent v. National Bank of Canada (1992), 124 N.B.R. 91. In that case Mr. Justice Russell was faced with a request initiated in December 1991 to receive documentary evidence that might have resulted in a change in a decision made 19 months earlier in May 1990. That lengthy delay is a major point of distinction of that case from this one. The documents were in the possession of plaintiff's counsel at the time of the trial in May 1990 but had not been put into evidence. In refusing that request Mr. Justice Russell said at pp. 202-203:

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One of the great dangers in allowing an application of this type is that a "finality to litigation" will, in fact, be discouraged as unsuccessful litigants will attempt to re-open their causes by questioning tactical decisions made by trial counsel during the course of the trial without allegations (much less proof) of wrongdoing or substandard conduct on the part of counsel. I agree with the result in Parent because of the circumstances and the lengthy delay. But that case also appears to have reinforced the comment that "leave to receive further evidence should not be granted except for the most compelling reason" as if it were a firm legal rule. I am, not convinced that it is. Thus comments in a number of New Brunswick cases in recent years have implied reduction in the traditional discretion a
[Page 9]

trial judge to allow a party to present further evidence after that party has closed. But remarks such as "leave to receive further evidence should not be granted except for the most compelling reasons" do not appear to have been made intentionally to overrule the traditional rule that "it is better not to lay down any particular rule, but to leave it to the discretion of the judge". Ironically, such comments implying a reduction of a trial judge's traditional discretion in such matters have occurred while the new Rules of Court, in force since 1982, have been attempting to escape the bounds of excessive formalism. For example, the Rules now emphasize that:
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. 2.01 The court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 2.02 A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties . . .

It seems to me to be worthy particular emphasis that the phrase "should not be granted except for the most compelling reasons" are not found in the Rules of Court. Those words appear to me to be inconsistent with both the letter and the spirit of the Rules and the Judicature Act, which, for example, in s. 26(3) uses words such as "as to the Court seems just".

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[Page 12]

Recent Civil Procedure Decisions In three recent cases the Court of Appeal has reversed me in rulings on civil prodedure [sic]. In my opinion those three reversals indicate that the Court of Appeal in deciding questions of civil procedure favoured form over substance when I did not. In Sullivan v. Irving-Zed (Judith) Photography et al. reflex, (1994), 149 N.B.R. (2d) 300, the Court of Appeal reversed a decision to allow a claims manager of the defendant's insurance company (who was paying for the defence and would pay for any settlement or award) to be present at the examination for discovery of the plaintiff in an action arising out of a motor vehicle accident. Although the insurer would have to pay, the Court of Appeal decided the insurer "is not a party and is not entitled to be present". That strikes me as favouring form over substance. In Sivret v. N.B. Power (January 3, 1995), reversing 146 N.B.R. (2d) 40, the Court of Appeal took the view that until death is proved by certificate or direct evidence or in compliance with the Presumption of Death Act, death cannot be inferred. Thus the Court of Appeal allowed a boy's litigation guardian to continue to act in that capacity more than one year after the boy fell from a bridge over the St. John River and became "missing". In Sivret the Court of Appeal also enforced the disputed acceptance by the litigation guardian of an Offer to Settle claims relating to the boy's suffering, future loss of income and other damages from an accident. Most of the boy's claim would die with him. That Offer to Settle had been made before the boy fell from the bridge and went "missing". Again, I think the message from the Court of Appeal Sivret is to favour form over substance.
[Page 13]

In R. v. Fraser (February 22, 1995) the Court of Appeal allowed an appeal by the Crown and criticized me for raising a Limitations of Actions Act defence for an unrepresented defendant who was being sued by the Crown to collect a very old student loan. The Court of Appeal cited no cases but said:
. . . the cases say that a judge should not raise such a defence of his or her own volition. See Mew, The Law of Limitations, p. 54.

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That book by Mew does makes that point but cites in support of it only two cases. Those two cases are extremely ancient English cases from 360 years ago, Thursby v. Warren (1629), Cro. Car. 159, 79 E.R. 738, and Stile v. Finch (1634), Cro. Car. 381, 79 E.R. 932. For reasons that are not apparent in Fraser, the Court of Appeal ignored the well-known provision in the Interpretation Act which lays down the modern rule that: 4. Every Act shall be judicially noticed, without being specially pleaded.
Fraser also strikes me as another example of the Court of Appeal

favouring form over substance. Ironically, counsel for the successful appellant in Fraser is one of the counsel for Petro-Canada in this case. Despite those three recent decisions from the Court of Appeal which I think favour form over substance in procedural matters, there are two recent indications that the Court of Appeal is now taking another approach. In October 1994, before the Court of Appeal decided Sivret and Fraser, I allowed a motion in this action for an interim injunction restraining Petro-Canada from proceeding against Daly under its power of sale until 30 days after the trial judgment in this action. In doing so because of special circumstances, I departed
[Page 14]

from the usual practice and did not require Daly put up extra security. Daly et al. v. Petro-Canada et al. (1994), N.B.R. Advance Sheets, January 9, 1995, page 7. That ruling was not interfered with by the Court of Appeal. Last month the Court of Appeal upheld an unusual discretionary order by another judge that extended the time for adding a defendant after the expiry of a limitation period because of the particular circumstances of the case. That case is York Equipment Ltd. v. Dabrowski Estate (April 6, 1995). As I see it, in York Equipment the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits. Also the Court of Appeal particularly emphasized in York Equipment that:

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We repeat the standard of review adopted by this Court in past cases, and as was said over a century ago in Gelding v. The Wharton Saltworks Company (1876), 1 Q.B.D. 374 (C.A.) at p. 375:

. . . on a question which depends on the discretion of the judge, the Court of Appeal does not in general interfere with that discretion. Not that the Court of Appeal has not complete jurisdiction over such cases, or that the decision of the Court below would not be overruled where serious injustice would result from that decision; but, as a general rule, the Court of Appeal declines to interfere. As far as I can determine that April 6, 1995 decision of York Equipment is only the third time that the New Brunswick Court of Appeal has ever cited or expressly followed that 1876 English Court of Appeal decision, Golding v. Wharton Saltworks. I am pleased to
[Page 15]

see Golding reaffirmed as representing "the standard of review adopted by [the New Brunswick Court of Appeal] in past cases". The other two cases in which Golding was cited in the law reports of this province as far as I can determine are the conflicting decisions Cheminski et al. v. Engineering Consultants Ltd. et al. (1971), 3 N.B.R. (2d) 760 and Collier v. Collier reflex, (1991) 119 N.B.R. (2d) 260.
Cheminski was an appeal from an application to strike out a portion of a statement of defence. After referring to Golding Mr. Justice Hughes, as he then was, (Limerick, J.A. and Bujold, J.A. concurring) at p. 763 quoted with approval "as a correct statement of the law applicable to appeals such as the present" the English Supreme Court Practice.

The "standard of review" approved in Cheminski was much broader than in Golding. The "Cheminski standard of review" was set out at page 770 as follows: "There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the Judge to make, unless it be shown that he exercised his discretion under a mistake of law, or in disregard of principle, or under a misapprehension as to the facts; or that he took into account irrelevant matters or failed to exercise his discretion, or that his order would result in injustice; and the Court will assume that the Judge properly exercised his discretion unless the contrary is shown."

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Collier was an appeal of a case of unequal division of marital debt. Mr. Justice Rice described what I will call the "Collier standard of review"

for the Court of Appeal (Stratton, C.J.N.B. and Hoyt, J.A. concurring) at pp. 265-266 as follows:
[Page 16]

Where an exercise of discretion is challenged, this court has stated on several occasions that it would not interfere with such exercise unless it is manifestly wrong. Newcastle (Town) v. Mattatall, Porter and Harris 1988 CanLII 127 (NB C.A.), (1988), 87 N.B.R. (2d) 238; 221 A.P.R. 238; Van Wart v. La-Ko Enterprises Ltd. (1981), 35 N.B.R. 256, 88 A.P.R. 256. A similar principle was enunciated by the British Columbia Court of Appeal in Maddison v. Bain, [1928] 3 D.L.R. 33, where Masten, J.A. at p. 34 said:
. . . It is not usual for a Court of Appeal to set aside orders in the exercise of a discretion. The first case of this nature is Golding v. Wharton Saltworks Co. (1876), 1 Q.B.D. 374; wherein the Court of Appeal unanimously declared that it would not do so unless they could say that the case was so 'extreme' and the circumstances so special that a 'serious injustice' would result if the order complained of was sustained, and cf. Knowles v. Roberts (1888), 38 Ch. D. 263, where Cotton, L.J., held, at p. 268, that 'material injury' and 'very great prejudice' had been occasioned by order and therefore it was set aside. This view of non-interference with judicial discretion has been constantly followed and in a very striking way in a case reported no later than December 9 last, Maxwell v. Keun (1927), 44 Times L.R. 100, at p. 101, in the English Court of Appeal and they said they would not do so unless there was what Atkin, L.J., declared had been occasioned by the order of the Lord Chief Justice, viz., 'a very substantial injustice'."

The judge of first instance made a discretionary order with respect to an unequal division of marital debts. As I am not able to say that in exercising his discretion the trial judge was manifestly wrong or that any substantial injustice resulted, I would not intervene.
[Page 17]

In both Collier and York Equipment the Court of Appeal ignored Cheminski. I interpret Collier and York Equipment as standing for the premise that "Cheminski standard of review" is no longer the law in this province. In my view York Equipment also indicates that the Court of Appeal is now emphatically returning to its position in Collier and reaffirming the "Collier standard of review". It is accepting that the law has recognized for 47

more than a century that a court of appeal should not interfere with the exercise of the discretion of a trial judge unless "the trial judge was manifestly wrong" or "substantial injustice" or "serious injustice would result". That "Collier standard of review" was concurred in by Stratton, C.J.N.B., in Collier. In my view, his concurrence minimizes the effect of his comment in Atlantic Speedy Propane that discretionary procedural relief "should not be granted except for the most compelling reasons" which echoed Miller, J. in McCarthy that "as with all discretionary powers, [it] should not be granted except for the most compelling reasons". In my opinion in view of Collier and York Equipment those earlier words by Chief Justice Stratton in Atlantic Speedy should not be considered as implying that the standard of review of judicial discretion in a matter of civil procedure is to verify the existence of "most compelling reasons". As I see York Equipment, the Court of Appeal is now confirming that it is putting substance over form in matters of civil procedure. Accordingly, in my opinion the "form over substance" implications for civil procedure of the Court of Appeal decisions of Sullivan, Sivret and Fraser have been nullified. The learned trial judge erred in law in making a discretionary decision, which was not based on argument raised by either party, submitted affidavit evidence or submitted argument and not based on just determination of the substantial matters in dispute between the parties and as a result the Courts Order would result in injustice if allowed to stand. The learned Trial Judge erred in law in not Ordering a Continuance based on the merits and circumstances of the case. The Plaintiff Andre Murray had good reason to ask the Court for a Continuance, Defendant Betty Rose Danielski had caused the 29 Marshall Street Property to be vacated by a Ex partee Order of the Court, acquired by Solicitors for the Royal Bank of Canada, from the Court of Queens Bench, Trial Division Moncton. The Documents Necessary to move the subject Mechanics Lien Action Forward are not accessible to Plaintiff INTENDED APPELLANT Andre Murray because of this fact. The duty of the court is to ensure, so far as possible, that justice is done, it is most unfair to deprive the Plaintiff INTENDED APPELLANT Andre Murray of a determination of the proceeding on its actual merits. The learned Trial Judge erred in law in failing to take into proper consideration the facts and law relating to the particular matter before the Court and therefore abused the discretion of the Court. Basing a decision that substantially decides rights of the parties grounded on a future event that may possibly not happen, is not a grounded decision at all. The Court was aware that the Mortgage Auction had taken place July 16, 2009 and

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the same Mortgage Auction had not yet closed. For the Court to dismiss this previously stated unusual fact, means that the Courts decision making ability was skewed. Furthermore Abuse of Discretion is defined by lectlaw at the following website: (http://www.lectlaw.com/def/a004.htm) ABUSE OF DISCRETION When a court does not apply the correct law or if it rests its decision on a clearly erroneous finding of a material fact. U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir.'93). A court may also abuse its discretion when the record contains no evidence to support its decision. MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91) When judges make decisions on various questions, they must, of course, follow the standards set out by law. These standards, though, often allow judges a lot of leeway (which is called discretion). Judges are given this discretion so they can make decisions that are fair in a particular case, instead of being locked into a formula that may not suit every situation. The exercise of judicial discretion is difficult to attack on appeal, because the decision, by law, was left to the judge in the first place. Nevertheless, judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion.

The learned Trial Judge erred in law by resting its decision on a clearly erroneous finding of a material fact, namely that the House sale has concluded. The Sale has not closed and in essence is not a complete sale until that time. Until that time the Plaintiff has many possibilities of recovering his claim, namely the possibility of bidding on the Mortgage if the Mortgage goes back up for auction sale, by completing the Lien Claim and having the tentative purchaser satisfy the Lien which they have a contractual duty to do on the date of closure of the subject sale. Abuse of Discretion is defined by answers.com at the following website: http://www.answers.com/topic/abuse-of-discretion Abuse of Discretion A failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedents 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 clearly against logic and the evidence. An improvident 49

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. The learned Trial Judge erred in law by failing to take into proper consideration the facts and law relating to the case, and presented by submission to the Court. The Court did arbitrarily, unreasonable and mistakenly departed from precedents and settled judicial custom. The learned Trial Judge exercised discretion in deciding a question before the Court, but did so in a way that is clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. Continuances are customarily granted only if valid grounds exist that justify the postponement of the action. A continuance may and should be granted for the accidental loss or destruction of papers in an action provided they cannot be readily replaced and the applicant for the continuance was not responsible for their loss, as was the case before the Court. Abuse of Discretion is furthermore defined by the Cornell Law University Website at the following website address: (http://topics.law.cornell.edu/wex/abuse_of_discretionAbuse of discretion) Definition A standard of review used by appellate courts to review decisions of lower courts. A judgment will be termed an abuse of discretion if the adjudicator has failed to exercise sound, reasonable, and legal decision-making skills. The learned trial judge erred in law in application of judicial discretion, judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion. Furthermore Manifest Abuse of Discretion is defined by duhaime.org at the following address: (http://www.duhaime.org/LegalDictionary/M/ManifestAbuseofDiscretion.aspx) Manifest Abuse of Discretion An American standard of judicial review: discretion exercised improvidently or thoughtlessly and without due consideration. In Beverly Enterprises, Justice Hannah wrote: Certiorari is available in the exercise of this court's superintending control over a tribunal that is proceeding illegally where no other adequate mode of review has been provided. It applies where the proceedings are erroneous on the face of the record and where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion. 50

"A manifest abuse of discretion is discretion exercised improvidently or thoughtlessly and without due consideration." In Malicoat, the Indiana Court of Appeal preferred: "[M]anifest abuse of discretion ... is when the trial court's decision is clearly against the logic and the facts of the case." But, then, in Bitterrooters, the Montana Supreme Court used these words: "A manifest abuse of discretion is one that is obvious, evident, or unmistakable." A manifest abuse of discretion is one that is obvious, evident, or unmistakable which is apparent in this subject case before the Court. The learned trial judge erred in law, by demonstrating prejudice regarding the hearing before the Court, deciding that the Motion for a Continuance of the Mechanics Lien Action would be granted based on predetermined criteria advanced by the Court and not based on argument offered by either parties or the material presented to the Court judged on its merits, consequently the Court did fail to exercise sound, reasonable, and legal decision-making skills.

5) Rule 39.01 Evidence on Motions


MOTIONS AND APPLICATIONS RULE 39 EVIDENCE ON MOTIONS AND APPLICATIONS 39.01 By Affidavit (1) On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order.

Admissible evidence is evidence which can be brought forward in a hearing to support or undermine a legal case. In order to be considered admissible, evidence must meet certain standards. The goal of the court process is truth-seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favorable to eliciting the truth. 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 directed otherwise by these rules or by order. , The learned trial judge made the pivotal decision of whether to Grant a Continuance pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act on what should have been inadmissible hearsay information.

51

(INTENDED RESPONDEDNTS - RECORD ON MOTION - BOOK 1 OF 2, Page 4 , paragraph k) 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 directed otherwise by these rules or by order., The learned trial judge made the pivotal decision in hearing the said Motion dated the 10th day of June, 2010 of whether to allow a Extension of time pursuant to Rule 3.02 of the Rules of Court, relying on inadmissible hearsay information, moreover as listed

in that Motion as orders sought first and primary was listed as the following provided immediately following which incidentally was continually ignored 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 further Order of this Court . The fundamental concern, with regard to the admissibility of hearsay evidence, is that an out-of-court statement may be relied upon as proof of the truth, used as evidence, without any fair opportunity, through cross-examination, to test its veracity and, consequently, infringes the principles of fundamental justice. The trial judge erred in law in admitting as evidence hearsay statements of Solicitor Hugh J. Cameron and a unnamed Solicitor for Cox & Palmer, made to Thomas E. Christie Solicitor for the Defendant. The circumstances surrounding the making of the impugned statements did not have the guarantee of trustworthiness necessary to allow their admission; in addition, the trial judge erred in law in admitting that evidence as it had no probative value while being highly prejudicial. The following definition of probative value is found at: http://legal_dictionary.thefreedictionary.com/probative+value probative value

52

probative value n. evidence which is sufficiently useful to prove something important in a trial. However, probative value of proposed evidence must be weighed against prejudice in the minds of jurors toward the opposing party or criminal defendant. A typical dispute arises when the prosecutor wishes to introduce the previous conduct of a defendant (particularly a criminal conviction) to show a tendency toward committing the crime charged, against the right of the accused to be tried on the facts in the particular case and not prejudice him/her in the minds of the jury based on prior actions. The following definition if hearsay evidence was found at mylawyer.com at the following web address: (http://www.mylawyer.com/legalinfo.asp?level=3&id=157) Hearsay Evidence The prohibition against admitting out-of-court statements to prove the truth of the matter stated, known as hearsay, is a cornerstone of American trial procedure. Testimony that she told me that John hit Jane is improper because the declarant, or the person who made the original statement to the testifying witness, is not present in court and sworn in under oath. In criminal cases, the rule against hearsay is especially crucial, since a defendant has the constitutional right to confront witnesses testifying against him. Furthermore, the jury is entitled to examine the credibility, demeanor and appearance of a declarant and the admission of hearsay testimony robs jurors of that opportunity. The rule against hearsay is complex due to a myriad of exceptions available to allow the admission of many hearsay statements. Since hearsay is prohibited because it generally goes to prove the truth of the matter, (for example, that John did, in fact, hit Jane), if another reason for the statements admissibility is shown and the declarant is unavailable, the jury will often be allowed to hear the testimony. Federal and state rules of evidence set out the many exceptions to the hearsay rule, including, hearsay statements that are:

excited utterancesI heard her scream, oh no, he shot me; proof of the declarants then existing state of mindshe was trying to get away and screaming that he was shooting at her; made for purposes of medical treatmentshe told the paramedic he shot her; recorded or written downdiary entry that he bought a gun; public recordsgun owners license; family recordsold photographs of a gun used in a shooting; or real estate or property records.

Hearsay that does not fall within one of the many specific exceptions can still be admitted under the residual or catch-all exception. Courts will allow hearsay testimony under this exception if the statement has a guarantee of trustworthiness. For example, a newspaper article devoted to the defendants gun collection,

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including the one used in a shooting, may be admitted under the residual exception.
The first inclusion of hearsay evidence occurred as can be found in the transcript of the subject Motion, to grant a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick. The Honorable Madam Justice Paulette Garnet states that she does not have the information she needs to come to a decision as follows, beginning at page 2, line 16: THE COURT: let the record show that I have read all of the documents that have been filed, and they reveal that on October the 21st, 2000 the defendant, Betty Rose Danielski, purchased the subject property. On October the 26th, 2000 she gave a mortgage to the Royal Bank. Now, Mr. Christie, what I am not able to tell from the record is how much the mortgage was for. Do you have that information? MR. CHRISTIE: I do not. Im sorry. Further on page 4 line 12: MR. RICHARDSON: Its the best the whole of the affidavit. I didnt realize that the exhibits were in substance in MR. CHRISTIE: The If I may, I note that the mortgage dated October 26th, 2000 of which was appended to the affidavit THE COURT: Yes, the first I knew it was, but it just wasnt given to me. MR. CHRISTIE: My apologies for that. The principal amount, $86,700. THE COURT: Okay. All right. Back to the record. The Second inclusion of hearsay evidence occurred as can be found in the transcript of the subject Motion, to grant a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick. The Honorable Madam Justice Paulette Garnet states that she does not have the information she needs to come to a decision as follows, beginning at page 5, line 6: THE COURT: ..On July 16th, 2009 a mortgage sale was conducted by the Royal Bank. And again, I want to know the particulars of the mortgage sale. Do we know? Mr. Christie: I, I dont know. I am sorry. THE COURT: Do you know? MR. RICHARSON: My Lady, the only thing that were aware of about the sale, as far as I know, is contained in the mortgage. I, I havent .Mr. Christies the only one thats had contact with Ms. Daneilski. I simply work from the files. THE COURT: It seems to me that it is abundantly obvious, at least to you, Mr. Christie, perhaps to .not to Mr. Murray who is not a lawyer. However the facts are this: The mortgagor The Mortgagee has a priority over a claim for lien. So, the mortgage salewhen the property was sold, if it was sold at a deficiency, which they almost always are, then the claim for lien is secondary to that. And without knowing that we dont know whether or not this claim for lien has any chance of recovering from the proceeds of the property. What Im trying to say is this whole thing might be moot and if I had that information Id know whether it is or not. Mr. Murray do you know how much the property sold for? MR. MURRAY: I , I dont have any documents with me to show that, Your Honor. I apologize.

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THE COURT: Do you know? MR. MURRAY: Um MR .CHRISTIE: If I was to suggest a 10 or 15 minute adjournment would that be of any help to the court? Continues Page 8, line 15 (COURT RESUMED) THE COURT: Okay. Mr. Christie, did you have any luck? MR. CHRISTIE: Thank you, I did. And well Ive spoken to Mr. Hugh Cameron who has acted for and continues to act for the party who purchased the interest in the home at the mortgage sale, and he had at one time filed an affidavit in another proceeding involving the bank and the numbered company who purchased it. And in that affidavit he deposes, and he has confirmed for me this afternoon, that his client offered and was accepted the amount of $79,101, 79,101 of which a deposit of $8000 has been put toward the purchase price which is still being held, of course, because this lien is holding up the conclusion of that. The Third inclusion of hearsay evidence occurred as can be found in the transcript of the subject Motion, to grant a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick. The Honorable Madam Justice Paulette Garnet states that she does not have the information she needs to come to a decision as follows, beginning at page 9, line 5: THE COURT: Okay. And do we know what, if any deficiency there was? MR. CHRISTIE: Well, I can advise you Ive spoken to the counsel for the Royal Bank THE COURT: Okay. MR. CHRISTIE: who have advised me that on July the 8th, 2009 the amount owing at that time, which would be inclusive of the taxes and legal fees associated with the property at that time was $79,078.65 So the difference in those was roughly $23. And I THE COURT: Thats what I thought.

In Toronto-Dominion Bank v. Cambridge Leasing Ltd., 2006 NBQB 92 (CanLII) William T. Grant stated: [7] In the case of R v. OConnor 2002 CanLII 3540 (ON C.A.), (2002) 62 O.R. (3d) 263 (O.C.A.) an out of court statement of a witness in Buffalo, New York was used to prove the truth of its contents. On appeal the Court held that it was impermissible hearsay. On the issue of necessity the Court stated at paragraph 57:

55

I have serious reservations whether Grodems statement meets the necessity requirement for the admission of hearsay statements. It is not sufficient for the Crown to simply show that a witness is not compellable because he or she is out of the jurisdiction to satisfy the necessity requirement. Efforts should be made to pursue other options (teleconferencing or taking commission evidence are two) before one reaches the conclusion that admitting evidence by way of hearsay statement is necessary. Necessity cannot be equated with the unavailability of a witness. Rather, it must be shown that hearsay is the only available means of putting the evidence before the court: R. v. Finta 1992 CanLII 2783 (ON C.A.), (1992), 73 C.C.C. (3d) 65, 92 D.L.R. (4th) 1 (Ont. C.A.) at p. 199 C.C.C.; R. v. Orpin 2002 CanLII 23600 (ON C.A.), (2002), 165 C.C.C. (3d) 56 (Ont. C.A.) at pp. 68-73.

[8] In the civil context this reasoning was applied in Independent Multi-Funds Inc. v. Bank of Nova Scotia, [2004] O.J. No. 340 (S.C.) where Lane, J. stated at para. 96: It is not enough to show that the witness is not compellable because he or she is out of jurisdiction; other options to obtain the evidence must be pursued and it must be shown that the hearsay is the only available means of putting the evidence before the court. [9] There is no evidence in this case of any attempt to identify a witness at Adesa who might give the evidence the defendants seek to introduce, let alone any evidence of attempts to obtain that evidence from that witness. I therefore find that the hearsay evidence which the defendants have attempted to introduce does not meet the test of necessity. The provided information could have been misunderstood, mixed up or made in error. For the Trial Judge to utilize hearsay information to make the pivotal decision of whether to grant a continuance or not is an error in law and unjust to the Intended Appellant (Plaintiff) Andre Murray. The information and statements should be under oath, solemn affirmation or affidavit.

In R. v. Duguay, 2005 NBQB 63 (CanLII) Justice Lucie A. LaVigne stated: Dealing specifically with prior statements as substantive evidence, 15. Mr. Justice Watt summarized it as follows at page 202:

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Despite the general rule that, absent adoption, prior inconsistent statements of a non-accused witness are relevant only to the credibility of the witness and the reliability of his/her testimony, there are circumstances in which prior statements may become substantive evidence, notwithstanding the absence of adoption. A prior statement may be admitted as substantive evidence, absent adoption, upon proof of
i. ii. necessity; and reliability,

on a balance of probabilities. Both are relative concepts. Each is flexibly interpreted. Necessity may be established where a witness who testifies in the proceedings recants a statement earlier made. It also includes situations in which evidence of comparable value cannot be obtained, either from the recanting witness or otherwise. The reliability criterion involves several constituents. The statement must be under oath or solemn affirmation following an explicit warning concerning the existence of severe criminal sanctions for making false statements. The statement should be videotaped in its entirety. The opposing party must have full opportunity to cross-examine the declarant at trial. Other reliability guarantees which serve as the functional equivalent of those mentioned may also suffice.

16. The only constituent of reliability available in the present case is the opportunity to cross-examine; therefore, we have to look for other reliability guarantees. 17. The reliability of a prior statement turns on the circumstantial probability of its trustworthiness when made. To determine reliability, I must examine all the circumstances surrounding the statement. 18. I agree with Mr. Munroe that the rules of admissibility have been relaxed following such cases as Starr (supra), Khan, 1990 CanLII 77 (S.C.C.), [1990] 2 S.C.R. 531, K.G.B. (supra), U.F.J., 1995 CanLII 74 (S.C.C.), [1995] 3 S.C.R. 764, et cetera, and that necessity and reliability must be interpreted flexibly having regards to the circumstances of the case. However, the criterion of necessity and threshold reliability cannot be abandoned.

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Furthermore: In R. v. Duguay, 2005 NBQB 63 (CanLII) Justice Lucie A. LaVigne stated: 8. There is no closed list of what constitutes necessity. At page 379 of Watts Manual of Criminal Evidence 2004, Justice Watt states: The criterion of necessity may nonetheless be met in limited circumstances where the declarant is not unavailable in the physical sense. The criterion is of reasonable, not absolute necessity. There are obvious cases of necessity, for example where the declarant is:
i. ii. iii. dead; too ill to testify; or beyond the jurisdiction of the court.

9.

That is not what applies here.

Necessity may also be established where the declarant:


iv. v. vi. is incompetent to testify; would suffer emotional trauma if summoned to testify; or is unable to provide a full and frank account of relevant events, including the ability to recall significant details.

10. 11. states:

None of these apply. Of course, as I said, this is not a closed list. Then, when talking about reliability, at page 383, Justice Watt

There are many factors that may help to determine whether the criterion of reliability has been met. They include, but are not limited to,
i. ii. iii. iv. v. vi. vii. the motive or otherwise of the declarant to speak falsely; the timing of the declaration in relation to the event reported; the personality or character of the declarant; the circumstances of the declaration, including whether it was the product of prompting; whether the statement was made under oath or its equivalent; the source of the declarants knowledge; and the presence or absence of litigation when the declaration was made.

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The reliability requirement focuses upon threshold, not ultimate reliability. Reliability is a function of the circumstances in which the declaration was made, not the character of the recipient, or the extent to which the hearsay statement is confirmed by other evidence. Admissible evidence is evidence which can be brought forward in a Court to support or undermine a legal case. In order to be considered admissible, evidence must meet certain standards. The Trial judge did not allow dispute over the admissibility of the impugned evidence, by the Intended Appellant (Plaintiff in that matter) Andre Murray who was prejudiced by the questionable information. Admissible evidence is defined by legal-dictionary.thefreedictionary.com at the following address: (http://legal-dictionary.thefreedictionary.com/Admissibility+of+Evidence) admissible evidence n. evidence which the trial judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections. Sometimes the evidence which a person tries to introduce has little relevant value (usually called probative value) in determining some fact, or prejudice from the jury's shock at gory details may outweigh that probative value. In criminal cases the courts tend to be more restrictive on letting the jury hear such details for fear they will result in "undue prejudice." Thus, the jury may only hear a sanitized version of the facts in prosecutions involving violence. The following definition of evidence and Admissible Evidence was located a www.reference.com at the following address: (http://www.reference.com/browse/evidence) evidence evidence, in law, material submitted to a judge or a judicial body to resolve disputed questions of fact. The rules discussed in this article were developed in England for use in jury trials. Today, they are generally observed in all countries having the common law, although they have been extensively modified by statute in some jurisdictions. The first juries were not neutral triers of fact; rather they were convened because of their immediate knowledge of the dispute before the court. Later, the practice developed of having witnesses testify before an impartial jury. The groundwork of the rules of evidence was laid between 1500 and 1700. The Role of Evidence in a Trial; Burdens of Proof In criminal trials, the prosecution has to prove each element necessary to its case beyond a reasonable doubt. In civil trials, on the other hand, a party has the

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burden only of proving affirmative contentions by a preponderance of the evidence. Thus the plaintiff must offer some proof of each of the elements that combine to constitute the defendant's alleged wrong (see procedure), while the defendant must prove his or her affirmative defenses, e.g., in a suit for negligence, that the plaintiff's own negligence contributed to the injury. Satisfying the burden of proof requires the prosecutor or the plaintiff to present evidence first. At the close of this presentation the criminal or civil defendant may move for acquittal or a nonsuit if admissible evidence supporting necessary contentions has not been offered. Proof may be dispensed with when an adversary formally admits a fact either in the pleadings or in court, or when the court may take judicial notice of the fact, i.e., when the fact is universally known or is easily ascertainable by the judge beyond reasonable dispute. In recent years the problems of procuring evidence have been eased somewhat by the introduction of broader discovery (i.e., disclosure) rules. In civil cases, these rules compel each party to a suit to allow the other to have access to its witnesses and to certain types of evidence before the trial. In criminal cases, the judge has the discretionary power to order discovery; in any event, the prosecutor must release all exculpatory evidence on request. Allegedly damaging errors in the admission of evidence are reviewable on appeal if an objection was made during the trial. In their final summing up, the attorneys may make any assertion that is supported to some degree by evidence. British judges and U.S. federal and, in some jurisdictions, state judges are permitted to comment on the credibility of the witnesses and the weight of the evidence. However, the judge must tell the jury that they are not bound by his or her remarks. See also verdict.

Admissible Evidence Evidence is often presented in a tense, emotional atmosphere in a courtroom long after the event in question took place. The object of the law of evidence is to assure a high probability that questions of fact are resolved correctly. To that end, material introduced at the trial is ordinarily restricted to items of great probative value; that which may arouse unreasoning passion is ordinarily excluded. The nature of the legal controversy and the written pleadings determine what assertions of fact each party must prove or disprove to win the case, and an item of evidence that at best has a remote bearing on the factual issues must be excluded as irrelevant or immaterial. A judge prefers direct evidence (such as an official document or a witness's assertion of immediate knowledge of the question at issue) to indirect or circumstantial evidence, which merely tends to establish

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the issue by proving surrounding circumstances from which the principal fact may be inferred. In addition to being relevant, evidence must be competent, i.e., it must not fall under an exclusionary rule. Obviously if the evidence is documentary (e.g., a birth certificate introduced to prove a person's age) or if it is "real" (e.g., a bloody garment exhibited to prove that the victim suffered injury), there can be a question only whether the proffered evidence is itself incompetent. The courtroom presentation of documentary evidence has been complicated by new computer technologies and the digitalization of information, which make the successful forging of texts and photographs far easier than previously. Witnesses Most evidence is offered by witnesses who testify before the court. Here, the question of the witness's personal competency must be resolved; it must be shown that the witness was able to know, understand, and remember the matters on which he or she is to be examined. Thus, a witness must possess the sensory faculties needed to apprehend the facts reported and must not be considered mentally ill or incompetent. Children offered as witnesses are examined by the judge to determine their intelligence and understanding. The witness is first directly examined by the party who offers him or her, then is cross-examined by the adversary. No witness may express an opinion on any matter when the jury can draw its own conclusions from the facts; but on technical questions an expert witness (e.g., a physician) may state an opinion. Hearsay declarations (e.g., testimony concerning a statement made out of court by a person not now before the court) usually are excluded on the grounds that the person who made the statement is not available for cross-examination or for evaluation by the judge or jury. Only when the circumstances of the statement afford a high probability of its truth may it be admitted. A witness may be excused from testifying about certain matters if he or she pleads personal privilege. In general, information confided in the course of the relations of attorney and client, priest and penitent, physician and patient, and husband and wife is subject to this privilege. In some jurisdictions such witnesses are incompetent to testify (cannot testify). Witnesses are further protected by the Fifth Amendment privilege of withholding evidence that might be self-incriminating. Criminal defendants have the privilege of refusing to take the witness stand (in which case the jury may make no negative assumptions concerning the reasons for such a refusal) and, in most situations, evidence of previous criminal convictions is inadmissible. Under the common law, parties to a civil suit and the defendant in a criminal action were not permitted to testify, but these rules have been abandoned.

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In Bari c. R., 2006 NBCA 119 (CanLII) Jutice ALEXANDRE DESCHNES, J.A. stated The Applicable Standard of Appellate Review as follows:

(1)

The Applicable Standard of Appellate Review

[17]

Essentially, Mr. Bari argues that the trial judge erred in law in the application of the criteria regarding admissibility from the relevant jurisprudential precedents dealing with necessity and reliability. He is also challenging the trial judges ruling that the probative value of such evidence outweighed its prejudicial effect. Before discussing the question of admissibility of the hearsay evidence, it is convenient to briefly mention the applicable standard of appellate review as it relates to the arguments raised by Mr. Bari.

[18]

Firstly, a court of appeal, absent manifest error, must accept the findings of fact made by the trial judge on which the ruling regarding admissibility is predicated. The court must, however, apply a correctness standard to the ultimate question of whether the trial judge properly applied the criteria relevant to the admissibility of the evidence to the facts as found by the trial judge (see R. v. Hawkins, 1996 CanLII 154 (S.C.C.), [1996] 3 S.C.R. 1043, at para. 81; 111 C.C.C. (3d) 129; [1996] S.C.J. No. 117 (QL); R. v. Merz 1999 CanLII 1647 (ON C.A.), (1999), 46 O.R. (3d) 161 (C.A.) at para. 49; [1999] O.J. No. 4309 (QL)).

[19]

Secondly, rulings with respect to the probative value of impugned evidence versus its prejudicial effect are not immune from appellate review; however, if the trial judge did not err by applying incorrect legal principles, a trial judges decision on this point is also entitled to a high degree of deference upon appellate review (see R. v. B. (C.R.), 1990 CanLII 142 (S.C.C.), [1990] 1 S.C.R. 717, at para. 28; [1990] S.C.J. No. 31 (QL)).

(2) [26]

Probative Value, Relevancy and Materiality

The trial judge did refer to the common law exceptions to the hearsay rule in her decision to admit the hearsay statements of the deceased. It is clear, however, that the ultimate decision to admit the evidence was anchored on the application of the twin requirements of necessity and reliability as advocated in such cases as R. v. Khan (1990), 1990 CanLII 77 (S.C.C.), [1990] 2 S.C.R. 531; [1990] S.C.J. No.81(QL); 59 C.C.C. (3d) 92 (S.C.C.); R. v. Starr, cited above; R.

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v. Smith (1992), 1992 CanLII 79 (S.C.C.), [1992] 2 S.C.R. 915; [1992] S.C.J. No. 74 (QL); 75 C.C.C. (3d) 257; R. v. Hawkins, cited above; and R. v. Mapara, 2005 SCC 23 (CanLII), [2005] 1 S.C.R. 358; [2005] S.C.J. No. 23 (QL); 2005 SCC 23;195 C.C.C. (3d) 225. As stated by this Court in R. v. Kelly (R.W.) 1999 CanLII 13120 (NB C.A.), (1999), 213 N.B.R. (2d) 1; [1999] N.B.J. No. 98 (QL), at paras. 65-66, (per Drapeau J.A. as he then was):

[] It is commonplace that the traditional rules governing the admissibility of hearsay evidence are no longer controlling. Reliability and necessity are now the determining factors. See R. v. Khan, 1990 CanLII 77 (S.C.C.), [1990] 2 S.C.R. 531, [], R. v. Smith (A.L.), 1992 CanLII 79 (S.C.C.), [1992] 2 S.C.R. 915, [] and R. v. K.G.B., 1993 CanLII 116 (S.C.C.), [1993] 1 S.C.R. 740. []

[27]

In Hawkins, at para. 67, the Court said:

Under this reformed framework, a hearsay statement will be admissible for the truth of its contents if it meets the separate requirements of "necessity" and "reliability". These two requirements serve to minimize the evidentiary dangers normally associated with the evidence of an out-ofcourt declarant, namely the absence of an oath or affirmation, the inability of the trier of fact to assess the demeanour of the declarant, and the lack of contemporaneous cross-examination.

[28]

On the issue of necessity, nothing need be said other than, as mentioned by the trial judge, Ms. Bari was obviously not available to testify at the appellant's trial and the necessity criterion was thus satisfied. On the issue of reliability of a statement, I find it useful to restate in more detail the Supreme Courts description of the reliability inquiry. In Hawkins, the Court explained at para. 75:

[29]

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The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.

[30]

It is therefore readily apparent that hearsay evidence which does not pass the initial test of threshold reliability (a task to be performed by the trial judge) will not find its way to the fact finder (the jury in a judge and jury case) to be assessed for its ultimate reliability, that is whether the hearsay evidence is trustworthy and the weight it should be given.

[31]

One must emphasize, however, that, as a general rule, as stated in Starr, the threshold reliability test is concerned only with whether or not the circumstances surrounding the making of the statement itself provide circumstantial guarantees of trustworthiness. Put differently, the relevant circumstances include only those that surround the making of the statements and not by reference to other evidence such as, for example, corroborative evidence. On this point, the court in Starr, at paras. 215-217, was unequivocal: In this connection, it is important when examining the reliability of a statement under the principled approach to distinguish between threshold and ultimate reliability. Only the former is relevant to admissibility: see Hawkins, supra, at p. 1084. [page254] Again, it is not appropriate in the circumstances of this appeal to provide an exhaustive catalogue of the factors that may influence threshold reliability. However, our jurisprudence does provide some guidance on this subject. Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement

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itself provide circumstantial guarantees of trustworthiness. This could be because the declarant had no motive to lie (see Khan, supra; Smith, supra), or because there were safeguards in place such that a lie could be discovered (see Hawkins, supra; U. (F.J.), supra; B.(K.G.), supra). And indeed, lower courts have recognized that the absence of a motive to lie is a relevant factor in admitting evidence under the principled approach: see R. v. L. (J.W.) 1994 CanLII 8734 (ON C.A.), (1994), 94 C.C.C. (3d) 263 (Ont. C.A.); R. v. Tam reflex, (1995), 100 C.C.C. (3d) 196 (B.C.C.A.); R. v. Rose (1998), 108 B.C.A.C. 221; see also B. Archibald, "The Canadian Hearsay Revolution: Is Half a Loaf Better Than No Loaf at All?" (1999), 25 Queen's L.J. 1 at p. 34. Conversely, the presence of a motive to lie may be grounds for exclusion of evidence under the principled approach. Put another way, it is the role of the trial judge to determine threshold reliability by satisfying him or herself that notwithstanding the absence of the declarant for crossexamination purposes, the statement possesses sufficient elements of reliability that it should be passed on to be considered by the trier of fact. At the stage of hearsay admissibility the trial judge should not consider the declarant's general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence. On this point, I agree with the Ontario Court of Appeal's decision in R. v. C. (B.) reflex, (1993), 12 O.R. (3d) 608; 80 C.C.C. (3d) 467; see also Idaho v. Wright, 497 U.S. 805 (1990). In summary, under the principled approach a court must not invade the province of the trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable. However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow a finding of threshold reliability. Furthermore in R v Bridges, 2005 MBQB 118 (CanLII) Discusses the applicability of the principled approach to exception under the hearsay rule as follows:

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[7] With the development of the principled approach to the admissibility of hearsay evidence, the court must reassess exceptions to the hearsay rule. In R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S. C. R. 144, [2000] S. C. J. No. 40, Iacobucci J., speaking on behalf of the majority of the Supreme Court made the following comments:

(para. 106) However, Khan, supra, and subsequent cases have established that hearsay that does not fit within a traditional exception may nonetheless be admissible if it meets the twin criteria of reliability and necessity. This case therefore requires that we determine the admissibility of evidence under the principled approach, and more particularly, the interaction between the principled approach and the traditional exceptions. In so doing, I conclude that hearsay that does not fit within a traditional hearsay exception, as currently understood, may still be inadmissible if it is not sufficiently reliable and necessary. The traditional must therefore yield to comply with the principled approach. (para. 155) Answering this question also raises issues respecting the interaction between the principled approach and the existing exceptions. I conclude that in the event of a conflict between the two, it is the principled approach that must prevail. The governing principles for hearsay admissibility must be reliability and necessity. (para. 199) As I have already discussed, a fundamental concern with reliability lies at the heart of the hearsay rule. By excluding evidence that might produce unfair verdicts, and by ensuring that litigants will generally have the opportunity to confront adverse witnesses, the hearsay rule serves as a cornerstone of a fair justice system. (para. 200) In Khan, Smith, and subsequent cases, this Court allowed the admission of hearsay not fitting within an established exception where it was sufficiently reliable and necessary to address the traditional hearsay dangers. However, this concern for reliability and necessity should be no less present when the hearsay is sought to be introduced

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under an established exception. This is particularly true in the criminal context given the fundamental principle of justice, protected by the Charter, that the innocent must not be convicted: R. v. Leipert, 1997 CanLII 367 (S.C.C.), [1997] 1 S. C. R. 281, at para. 24, quoted in R. v. Mills, 1999 CanLII 637 (S.C.C.), [1999] 3 S. C. R. 668, at para.71. It would compromise trial fairness, and raise the spectre of wrongful convictions, if the Crown is allowed to introduce unreliable hearsay against the accused, regardless of whether it happens to fall within an existing exception. (para. 213) Hearsay evidence may only be admitted if it is necessary and reliable, and the traditional exceptions should be interpreted in a manner consistent with this requirement.

[8] The principled approach creates a new standard for the consideration of admissibility of hearsay evidence. Iacobuccis comments leave little doubt the Supreme Court intended for the principled approach to apply to all categories of hearsay evidence. Evidence that may have been admissible under the common law rules of hearsay evidence may no longer be admissible under the principled approach. Conversely, evidence that was not admissible under the common law rules of hearsay evidence may now be admissible.

6) Rule 39.04 Service of Affidavits

MOTIONS AND APPLICATIONS RULE 39 EVIDENCE ON MOTIONS AND APPLICATIONS 39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing.

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(PART II STATEMENT OF FACTS, number 11, supra) The learned trial judge erred in law in not Ordering an extended adjournment adequate so that admissible evidences of the requested information could be obtained by affidavit and served on the effected parties 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 shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing This adherence to the Rules of Court would have provided the Plaintiff Andre Murray an opportunity to examine the documents and prepare a response for the courts consideration.

7) Rule 2.03 Attacking the Regularity of Proceedings

RULE 2 NON-COMPLIANCE WITH THE RULES 2.03 Attacking the Regularity of Proceedings A motion to attack a proceeding for irregularity shall be made within a reasonable time, and shall not be allowed if the party applying has taken a further step in the proceeding after having knowledge of the irregularity.

(PART II STATEMENT OF FACTS, number 12, supra) The learned Trial Judge erred in law, in irregularly applying the Courts Discretion to not Grant a Continuance according to section 52.1 (1) (b) of the Mechanics Lien Act. The Plaintiff INTENDED APPELLANT Andre Murray brings the Courts attention according to Rules of Court, Rule 2.03 Attacking the Regularity of Proceedings and considers that the learned Trial Judge improperly exercised, with prejudice, the Courts Discretion in arriving at the final decision. The learned Trial Judge erred in law by irregularly directing the parties to provide information requested by the Court, not included in the submitted record presented to the Court and furthermore not the substance of argument presented as by either party. Justice Smt. Sujata V. Manohar, Supreme Court of India (Retd.) defined Principles of Natural Justice at itatonline.org at the following address: http://www.itatonline.org/articles_new/index.php/principles-of-natural-justice/ The principles of natural justice have evolved under common law as a check on the arbitrary exercise of power by the State. As the State powers have increased, taking within their ambit not just the power of governance but also activities in 68

areas such as commerce, industry, communications and the like, it has become increasingly necessary to ensure that these powers are exercised in a just and fair manner. The common law, which is a body of unwritten laws which govern the legal systems of England, USA, Canada, Australia and other commonwealth countries including India, has responded to this need to control the exercise of State powers through applying the principles of natural justice to the exercise of such powers. There is only one more principle that has slowly taken root as a part of natural justice. This is the principle that every decision must contain reasons for the decision. Reasons may be elaborate or may be brief. But these are beginning to be considered necessary to ensure fair decision making. What exactly are these principles? Basically, these are principles which are necessary for a just and fair decision making. These principles are often embedded in the rules of procedure which govern the judiciary. For example, the Civil Procedure Code prescribes a detailed procedure under which the Defendant has the right to reply to the Plaint; both sides have the right to inspect the documents relied upon by the other side and both sides have the right to crossexamine one anothers witnesses. The judgment must give reasons for the decision. In the case however, of quasi-judicial or administrative Tribunals or bodies, the common law has laid down some basic principles which such bodies must follow. If there is any substantial departure from these principles of natural justice, the decision can be challenged and set aside through the judicial process. One of the well known enunciations of the principles of natural justice is in the case of Ridge vs. Baldwin (1963) 2 AER 66 (HL). In that case Lord Hudson observed: No one, I think, disputes that three features of natural justice stand out. (i) The right to be heard by an unbiased Tribunal, (ii) The right to have notice of charges of misconduct, (iii) The right to be heard in answer to that charge. Thus decisions of quasi-judicial bodies became open to scrutiny to ensure that these rights are not violated. This was in sharp contrast to the old traditional dictum to the effect that King can do no wrong. Officers of the King became subject to judicial scrutiny when they delivered quasi-judicial decisions. For a long time considerable judicial effort was spent on making a distinction between quasi-judicial bodies and administrative bodies because it was held for a long time that administrative decisions were not subject to such scrutiny. Indian judiciary was the first to do away with the distinction between administrative decisions and quasi-judicial decisions, realizing that the line between administrative decisions

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and quasi judicial decisions was very thin. It also shows how administrative law has evolved from case to case as a response to the need to have a check over arbitrary exercise of power. In the famous case of A.K. Kripak vs. Union of India AIR 1970 SC 150 the Supreme Court held that administrative decisions were also subject to judicial scrutiny and could be tested on the anvil of natural justice. In the case of Kripak, the acting Chief Conservator of Forest was a part of the Selection Committee along with the Members of the Union Public Service Commission to select a permanent incumbent to the post of Chief Conservator. He was also one of the candidates for the post. When his file was scrutinized he excused himself from the Selection Committee saying that he cannot be a party to a decision which would affect him. He, however, remained on the Selection Committee which looked at the files of other candidates. The acting Chief Conservator of Forests was selected by this Committee for the post of Chief Conservator. The Supreme Court came down heavily against this decision calling it contrary to the principles of natural justice. The Court also held that it would no more accept in this country any distinction between administrative decision making and quasi-judicial decision making. The Court did not adhere to the principals of Natural Justice, so fundamental to a healthy, just and productive Court system, the very principals which are necessary for just and fair decision making.

8) Maxim -Audi Alteram Partem -Latin; literally 'hear the other side'. Maxim Audi Alteram Partem Latin; literally 'hear the other side'. The principles of natural justice have evolved under common law as a check on the arbitrary exercise of power, and ensure that these powers are exercised in a just and fair manner. The common law, has responded to this need to control the exercise of powers through applying the principles of natural justice to the exercise of such powers. If there is any substantial departure from these principles of natural justice, the decision can and should be challenged and set aside through the judicial process. (PART II STATEMENT OF FACTS, number 13 supra)The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side'). The maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person. The learned trial judge, would not allow the Plaintiff 70

INTENDED APPELLANT Andre Murray to be heard and nor to address the Court and explain why the Court should not make the decision based on the new information proposed, and address why that reasoning was flawed based on the merits of facts found within documents filed within the file to be reviewed and considered during the very case before the Honorable Court. (PART II STATEMENT OF FACTS, number 14 supra)The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra, in not considering documents filed by the Plaintiff INTENDED APPELLANT Andre Murray to address the fact that the Prospective purchaser, 501376 N.B. Ltd, a body corporate at the Mortgage Sale, had caused a contract to be signed, Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009 which specifically stated that the purchasers would honor all Liens in full on the date of delivery of the Deed to such purchaser, furthermore since the Plaintiff (in the Motion questioned herein) and INTENDED APPELLANT Andre Murray(in this matter before the Court of Appeal) was not permitted to speak to these matters.. (PART II STATEMENT OF FACTS, number 15 supra) 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 INTENDED APPELLANT Andre Murray to draw the learned trial judges attention to the fact that the source of the pivotal information which the Madame Justice ultimately relied upon, was not Sworn to under Oath, and was hearsay information sourced from two Solicitors both with blatantly evident and potential conflicts of interest:
Intended Appellant (Plaintiff) Andre Murray very believe to be true that:

George LeBlanc vendor of the Investment Instrument Mortgagee Deed registered 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, a body corporate, who signed a Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009, regarding the very same 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, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser.

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(PART II STATEMENT OF FACTS, number 16 supra)The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra consequentially, did not address the requested order as follows: 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 of this Court; furthermore, instead learned trial judge erred in law focusing primarily on the following requated order as listed b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of Court. NOTE: The Mortgage sale had not yet closed and at any time the tentative purchasers could back out of the Terms of Sale resulting in a new Mortgage auction or private sale of the property which is the same subject property of the Mechanics Lien action and Motion for which leave to Appeal is requested, furthermore, which such a possible and likely scenario could provide the subsequent Sale with the funds necessary for compensation of the Intended Appellant Andre Murray(Plaintiff in that matter) in accordance with the subject Mechanics Lien Claim. The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side') one of the two fundamental principles of natural justice. The maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person. The learned trial judge, would not allow the Plaintiff INTENDED APPELLANT Andre Murray to address the Court and explain why the Court should not make the decision based on the new information proposed, and address why that reasoning was flawed based on the facts of the very case before the Court. The following is found at legal-dictionary.thefreedictionary.com at the following address: http://legaldictionary.thefreedictionary.com/audi+alteram+partem audi alteram partem [Latin, hear the other side.] It embodies the concept in Criminal Law that no person should be condemned unheard; it is akin to due process. The notion that an individual, whose life, liberty, or property are in legal jeopardy, has the right to confront the evidence against him or her in a fair hearing is one of the fundamental principles of Constitutional Law in the United States and England. The learned trial judge erred in law in not by not applying the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against him. Furthermore the following principle of natural justice is found at wikipedia.org at the following address: http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua

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The other principle of natural justice is "Hear the other party" (Audi alteram partem) otherwise put "Reasonable opportunity must be given to each party, to present his side of the case". The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed or appealed, but may be remitted for a valid re-hearing. The following is found at duhaime.org at the following address: http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx Audi Alteram Partem Latin; literally 'hear the other side'. The maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person. Justice Bayley wrote, in Chapel v Child: "I know of no case in which you are to have a judicial proceeding, by which a man is to be deprived of any part of his property, without having an opportunity of being heard." A principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard. Habeas corpus was an early expression of the audi alteram partem principle. In more recent years, it has been extended to include the right to receive notice of a hearing and to be given an opportunity to be represented or heard at that hearing. The expression received this endorsement from the US Supreme Court (Caritativo): "Audi alteram partem - hear the other side! - a demand made insistently through the centuries, is now a command, spoken with the voice of the due process clause of the 14th Amendment, against state governments, and every branch of them executive, legislative, and judicial - whenever any individual, however lowly and unfortunate, asserts a legal claim. "It is beside the point that the claim may turn out not to be meritorious. It is beside the point that delay in the enforcement of the law may be entailed ...

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"The right to be heard somehow by someone before a claim is denied, particularly if life hangs in the balance, is far greater in importance to society, in the light of the said history of its denial, than inconvenience in the execution of the law. If this is true when mere property interests are at stake ... how much more so when the difference is between life and death?"

REFERENCES:

Caritativo v People of State of California 357 US 549 (1958) Chapel v Child 2 Cr. & J. 579 (1832)

The following is found at wikipedia.org at the following address: http://en.wikipedia.org/wiki/Audi_alteram_partem Audi alteram partem From Wikipedia, the free encyclopedia Audi alteram partem (or audiatur et altera pars) is a Latin phrase that means, literally, hear the other side.[1] It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against him.[2] "Audi alteram partem" is considered a principle of fundamental justice or equity in most legal systems. The principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party, to summon one's own witnesses and to present evidence, and to have counsel, if necessary at public expense, in order to make one's case properly. [edit] History of use As a general principle of rationality in reaching conclusions in disputed matters, "Hear both sides" was treated as part of common wisdom by the ancient Greek dramatists.[3] The principle was referred to by the International Court of Justice in the Nuclear Tests case, referring to France's non-appearance at judgment.[4] Today, legal systems differ on whether individuals can be convicted in absentia.

The transcript of the subject Motion, to grant a Continuance of the Mechanics Lien Action, 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

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Justice Paulette Garnets assertion suggests that the actual complete circumstance of the matter before the court, where on no consequence in the Courts decision, beginning at page 11, line 12: THE COURT: ..Okay. Now, the Mortgage takes priority over the lien with respect to all monies advanced before the lien was filed, which means that the plaintiff, if he were 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 against the 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 that the mortgage sale that took place in July had a prospective purchaser who paid a deposit for purchasing the property, and the sale has not closed. So the sale is not final. The, the prospective purchaser THE COURT: It doesnt matter, Mr. Murray. No matter what happens to this property the Royal Banks claim is in priority to yours. MR. MURRAY: What, what THE COURT: It is a priority claim. The mortgage The Royal Bank will be paid before you 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 happened yet, we cannot consider it a done deal because the prospective purchaser may back out on that deal. The property may be put back up for option or for auction, and the sale might happen a second time for a much higher value which means that my, my lien may be covered. Theres a potential there and it would be an extreme prejudice to the Plaintiff in 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. Im not quashing anything. You are asking me to exercise my discretion to give you an extension 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 is extinguished because my understanding of the Mechanics Lien Act is that within one year 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 the mechanics 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. It is a waste of this courts time. It is a waste of money. It is a waste of everything. The

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Royal bank of Canada has a priority lien against this property, and you are going to get zero from the property. You can sue Ms. Danielski, but nothing is going to come out of the property to you. And it makes no sense to give you the extension, and I am not giving it. MR. MURRAY: Your Honor THE COURT: The end. MR. MURRAY: Your Honor, may I speak THE COURT: The end. (COURT ADJOURNED JUNE 10, 2010)

The Court made a decision without providing the opportunity for both parties to present all available and properly filed evidence and argument to the court for consideration. The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra, in not allowing the Plaintiff INTENDED APPELLANT Andre Murray to address the fact that the Prospective purchaser, 501376 N.B. Ltd, a body corporate at the Mortgage Sale, had caused a contract to be signed, Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009 which specifically stated that the purchasers would honor all Liens in full on the date of delivery of the Deed to such purchaser. 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 INTENDED APPELLANT Andre Murray to draw learned trial judge attention to the fact that the source of the pivotal information which the learned trial judge relied upon, was not sworn to under oath, possibly said in error and was hearsay information sourced from the same Hugh Cameron acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed a Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009, regarding the very same property, which stated the purchaser agrees to pay any outstanding ..Liens,, at paragraph 10 reproduced in full below: 10. All real property taxes, water rates. liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser. The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra by basing the Courts decision of Granting a Continuance based on a single issue that had not yet concluded. The Mortgage sale had not yet closed and at any time the prospective purchasers could back out of the contract for purchase resulting in a new Mortgage auction or private sale, which may provide the

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Plaintiff with the funds necessary for compensation in accordance with the subject Mechanics Lien Claim.

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. (PART II STATEMENT OF FACTS, number 16 supra) The principle that no one should be a judge in his own action underlies the doctrine of "reasonable apprehension of bias". As a general principle, this is not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner. The question, is whether her comments could cause a reasonable observer to apprehend bias. Secondly we should consider whether the trial judge properly instructed herself on the evidence or was an error of law committed by her. (PART II STATEMENT OF FACTS, number 17 supra) The learned Trial Judge erred in law in not recognizing the principal of law expressed in the maxim nemo judex in causa sua debet esse which underlies the doctrine of "reasonable apprehension of bias". The appellant contends that a reasonable apprehension of bias arose by the fact that the learned Trial Judge, announced the information required for the Court to come to a predictable decision favorable to the Defendant, then charge the Solicitor Thomas Christie for the Defendant to collect that vary same information, without questioning the validity or reliability of the same inadmissible hearsay information. (PART II STATEMENT OF FACTS, number 18 supra) The learned Trial Judge erred in law in not recognizing the principal of law 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 error and was hearsay information sourced from the same Hugh Cameron acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed a Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009, regarding the very same property, which stated the purchaser agrees to pay any outstanding ..Liens,, at paragraph 10 reproduced in full below: 10. All real property taxes, water rates. liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser.

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(PART II STATEMENT OF FACTS, number 21 supra) 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 the parties to the prejudice of the Plaintiff INTENDED APPELLANT Andre Murray. (PART II STATEMENT OF FACTS, number 22 supra) The learned trial judge erred in law in demonstrating prejudice, deciding that the Motion and orders requested and found listed within same would not be entirely considered furthermore Madame Justice only permitted for review of certain predetermined criteria, being advanced by the Honorable Court, further addressing only one of the requested orders and not based on or permitting argument offered by either party to the action, nor was the aforementioned requested orders judged on the merits of all documents submitted and filed with Court of Queens Bench, furthermore, which were intended to be used as argument by the Plaintiff in that Motion and said denial was consequentially, to the prejudice of the INTENDED APPELLANT (same person)Andre Murray. (PART II STATEMENT OF FACTS, number 23 supra) The trial judge erred in law in not Ordering an adjournment of sufficient time, that the answers to prescribed questions, as was requested by Madame Justice, would or could be properly obtained and properly Filed with the Honorable Court by affidavit than properly served on the effected parties 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 shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing. Which is to the prejudice of the Plaintiff INTENDED APPELLANT Andre Murray. (PART II STATEMENT OF FACTS, number 24 supra) The trial judge erred in law in not ordering a Continuance based on the merits of submitted affidavit evidence and circumstances of the case. The duty of the court is to ensure, as much as is possible, that justice is done, it is most unfair to deprive the Plaintiff Andre Murray and INTENDED APPELLANT (in this matter) of a opportunity to plead on the record to reveal the facts of the case on its merits. There appears to be evidence of a possible conflict between the interest of the Court in the outcome of the hearing, and their duty to give a fair hearing to the Intended Appellant (Plaintiff) Andre Murray, which raises a reasonable apprehension of bias. In my view, the facts of this case do raise a reasonable apprehension of bias, and will undermine public confidence in the impartiality of the Court. Impartiality meaning the principle of justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons. Let us examine the following maxims associated with principles of natural justice:

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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. And The maxim nemo judex in causa sua debet esse underlies the doctrine of "reasonable apprehension of bias. First let us examine Nemo Judex In Parte Sua. The following is found at duhaime.org at the following address: http://www.duhaime.org/LegalDictionary/N/Nemojudexinpartesua.aspx 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. Latin, and a fundamental principle of natural justice which states that no person can judge a case in which he or she is party or in which he/she has an interest. Also known as:

nemo judex in sua causa; or nemo debet esse judex in propria causa.

The maxim crystalized in British-tradition common law in the case Frome United Breweries Co. v Bath 1926 AC 586 in which British's highest legal officer, called the "Lord Chancellor" (LC), made a decision favourable to a canal company. At the time, unbeknownst to the parties to the litigation, the LC was a shareholder in the canal company and had not told the litigants. The LC's decision was set aside because of the nemo judex maxim. "The maxim that no man is to be judge in his own case should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest.... "This will be a lesson to all ... tribunals to take care, not only that in their decrees they are not influenced by their personal interests, but to avoid the appearance of labouring under such an influence."

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In Canada, the Supreme Court had occasion to reflect on the maxim in Brosseau v Alberta Securities Commission [1989] 1 SCR 301, Justice l'Heureux-Dub: "The maxim nemo judex in causa sua debet esse underlies the doctrine of reasonable apprehension of bias. "It translates into the principle that no one ought to be a judge in his own cause. In this case, it is contended that the Chairman, in acting as both investigator and adjudicator in the same case, created a reasonable apprehension of bias. "As a general principle, this is not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner." See also the related legal definition of recusation. Furthermore the following is found at wikipedia.org at the following address: http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua Nemo iudex in causa sua From Wikipedia, the free encyclopedia Nemo iudex in causa sua (or nemo iudex in sua causa) is a Latin phrase that means, literally, no-one should be a judge in their own cause. It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none: "Justice must not only be done, but must be seen to be done". May also be called: * nemo iudex idoneus in propria causa est * nemo iudex in parte sua * nemo debet esse iudex in propria causa * in propria causa nemo iudex The other principle of natural justice is "Hear the other party" (Audi alteram partem) otherwise put "Reasonable opportunity must be given to each party, to present his side of the case". The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed or appealed, but may be remitted for a valid re-hearing.

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A example of reasonable apprehension of bias can be found in the transcript of the subject Motion, to grant a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick. The Honorable Madam Justice Paulette Garnet states that she does not have the information she needed to come to a decision, but expected the coming information to be a certain way and then confirms her prejudice as follows, beginning at page 9, line 5: THE COURT: Okay. And do we know what, if any deficiency there was? MR. CHRISTIE: Well, I can advise you Ive spoken to the counsel for the Royal Bank THE COURT: Okay. MR. CHRISTIE: who have advised me that on July the 8th, 2009 the amount owing at that time, which would be inclusive of the taxes and legal fees associated with the property at that time was $79,078.65 So the difference in those was roughly $23. And I THE COURT: Thats what I thought.

The learned Trial Judge erred in law in not recognizing the principal of law expressed in the maxim nemo judex in causa sua debet esse which underlies the doctrine of "reasonable apprehension of bias". The appellant contends that a reasonable apprehension of bias arose by the fact that The learned Trial Judge, announced the information required for the Court to come to a decision favorable to the Defendant, then charge the Solicitor Thomas Christie for the Defendant to collect that vary same information, without questioning the validity or reliability of the same inadmissible hearsay information.
This example of reasonable apprehension of bias can be found in the transcript of the subject Motion, to grant a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick. The Honorable Madam Justice Paulette Garnet states that she does not have the information she needed to come to a decision, but expected the coming information to be a certain way and then confirms her prejudice as follows, beginning at page 6, line 14: THE COURT: Well it would. What this boils down to is this: Mr. Murray is coming here and asking me to give him an extension on a limitation period. The It is a discretionary matter on my part whether I do that. Now, whether I do that depends on a number of things. However, it also depends on where her it makes sense to continue in the claim for lien, and it doesnt make any sense if theres no value in the property. In other words, unless the Royal Bank of Canada, when they sold the property in the mortgage sale, got more than they owed under the mortgage, and I suggest to you its highly unlikely, but unless they did Mr. Murray ca whistle. Thats what it boils down to because there is no money in the property to respond to a claim for lien, even if it is successful. Let me put it another way. Perhaps Im not getting through to you. Let us assume that I give Mr. Murray an extention and Mr. Murray pursues his claim for lien. Just This is a hypothetical. And the Royal Bank has already sold the property by virtue of the Property Act, which it can do. And the Ryal Bank has a deficiency of , I dont know I did three this morningand some of them anywhere between 20 and 60 thousand dollars deficiency. The Royal Bank has a priority against Ms. Danielski in any claim against her with respect to the property. Are you following me Mr. Christie?

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MR. CHRISTIE: Yes, thank you. THE COURT: All right. So if the Royal Bank wasnt paid as a result o the propertys sale then the claim for lien is useless. Im not saying the claim is useless/ Mr. Murray can make a personal claim against Ms. Danielski. He can sue her in contract. But the property will not answer the claim because the property is gone, and unless there is a more money than was owed to the Bank of to the Royal Bank then theres nothing to execute on. So do you all understand what I am saying? MR. MURRAY: Yes, Madam Justice. THE COURT: Okay, Al right. So lets find out, if we can, how much the property was sold for and how much, at that point, the Royal Bank was owed. Can you find that out Mr. Christie? MR. CHRISTIE: I can do my best to contact the lawyers right now. THE COURT: All right. Fifteen minutes? MR. CHRISTIE: I will certainly be back by then. (COURT RECESSED)

The learned Trial Judge erred in law in not recognizing the principal of law 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 error and was hearsay information sourced from the same Hugh Cameron acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed a Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, on behalf of his client dated July 16, 2009, regarding the very same property, which stated the purchaser agrees to pay any outstanding ..Liens,, at paragraph 10 reproduced in full below: 10. All real property taxes, water rates. liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser.
This example of reasonable apprehension of bias can be found in the transcript of the subject Motion, to grant a Continuance of the Mechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick. The Honorable Madam Justice Paulette Garnet is accepting information from Solicitor Hugh Cameron that is to the benefit of Hugh Camerons Client as follows, beginning Continues Page 8, line 15: (COURT RESUMED) THE COURT: Okay. Mr. Christie, did you have any luck? MR. CHRISTIE: Thank you, I did. And well Ive spoken to Mr. Hugh Cameron who has acted for and continues to act for the party who purchased the interest in the home at the mortgage sale, and he had at one time filed an affidavit in another proceeding involving the bank and the numbered company who purchased it. And in that affidavit he deposes, and he has confirmed for me this afternoon, that his client offered and was accepted the amount of $79,101, 79,101 of which a deposit of $8000 has been put toward

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the purchase price which is still being held, of course, because this lien is holding up the conclusion of that.

The trial will be rendered unfair if the words or actions of the trial judge give rise to a reasonable apprehension of bias to the informed and reasonable observer. Let us review R. v. R.D.S., 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484 found at the following: http://www.canlii.org/en/ca/scc/doc/1997/1997canlii324/1997canlii324.html for an elaboration of this principle at paras. 109-120, inclusive. (iv) The Test for Finding a Reasonable Apprehension of Bias

109 When it is alleged that a decision-maker is not impartial, the test that must be applied is whether the particular conduct gives rise to a reasonable apprehension of bias. Idziak, supra, at p. 660. It has long been held that actual bias need not be established. This is so because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind. See Newfoundland Telephone, supra, at p. 636.

110 It was in this context that Lord Hewart C.J. articulated the famous maxim: [it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done: The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259. The Crown suggested that this maxim provided a separate ground for review of Judge Sparks decision, and implied that the threshold for appellate intervention is lower when reviewing a decision for appearance of justice than for appearance of bias. This submission cannot be sustained. The Sussex Justices case involved an allegation of bias. The requirement that justice should be seen to be done simply means that the person alleging bias does not have to prove actual bias. The Crown can only succeed if Judge Sparks reasons give rise to a reasonable apprehension of bias.

111 The manner in which the test for bias should be applied was set out with great clarity by de Grandpr J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (S.C.C.), [1978] 1 S.C.R. 369, at p. 394:

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[T]he 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 has been adopted and applied for the past two decades. It contains a twofold 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. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with 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. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.

112 The appellant submitted that the test requires a demonstration of real likelihood of bias, in the sense that bias is probable, rather than a mere suspicion. This submission appears to be unnecessary in light of the sound observations of de Grandpr J. in Committee for Justice and Liberty, supra, at pp. 394-95:

I can see no real difference between the expressions found in the decided cases, be they reasonable apprehension of bias, reasonable suspicion of bias, or real likelihood of bias. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the very sensitive or scrupulous conscience. [Emphasis added.]

Nonetheless the English and Canadian case law does properly support the appellants contention that a real likelihood or probability of bias must be

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demonstrated, and that a mere suspicion is not enough. See R. v. Camborne Justices, Ex parte Pearce, [1954] 2 All E.R. 850 (Q.B.D.); Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.); R. v. Gough, [1993] 2 W.L.R. 883 (H.L.); Bertram, supra, at p. 53; Stark, supra, at para. 74; Gushman, supra, at para. 30.

113 Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.

114 The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30. Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.

115 Finally, in the context of the current appeal, it is vital to bear in mind that the test for reasonable apprehension of bias applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic. A judge who happens to be black is no more likely to be biased in dealing with black litigants, than a white judge is likely to be biased in favour of white litigants. All judges of every race, colour, religion, or national background are entitled to the same presumption of judicial integrity and the same high threshold for a finding of bias. Similarly, all judges are subject to the same fundamental duties to be and to appear to be impartial.

(v) Judicial Integrity and the Importance of Judicial Impartiality

116 Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joy coupled with a realization of the onerous responsibility that goes with the office. The taking of

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the oath is solemn and a defining moment etched forever in the memory of the judge. The oath requires a judge to render justice impartially. To take that oath is the fulfilment of a lifes dreams. It is never taken lightly. Throughout their careers, Canadian judges strive to overcome the personal biases that are common to all humanity in order to provide and clearly appear to provide a fair trial for all who come before them. Their rate of success in this difficult endeavour is high.

117 Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. See R. v. Smith & Whiteway Fisheries Ltd. 1994 CanLII 4057 (NS C.A.), (1994), 133 N.S.R. (2d) 50 (C.A.), and Lin, supra. This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with cogent evidence that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias. See Smith & Whiteway, supra, at para. 64; Lin, supra, at para. 37. The presumption of judicial integrity can never relieve a judge from the sworn duty to be impartial.

118 It is right and proper that judges be held to the highest standards of impartiality since they will have to determine the most fundamentally important rights of the parties appearing before them. This is true whether the legal dispute arises between citizen and citizen or between the citizen and the state. Every comment that a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges must be conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties. This must be a cardinal rule of judicial conduct.

119 The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial

does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the

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baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave.

True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.

(Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p. 12.)

It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. The sound belief behind the encouragement of greater diversity in judicial appointments was that women and visible minorities would bring an important perspective to the difficult task of judging. See for example the discussion by the Honourable Maryka Omatsu, "The Fiction of Judicial Impartiality" (1997), 9 C.J.W.L. 1. See also Devlin, supra, at pp. 408-9.

120 Regardless of their background, gender, ethnic origin or race, all judges owe a fundamental duty to the community to render impartial decisions and to appear impartial. It follows that judges must strive to ensure that no word or action during the course of the trial or in delivering judgment might leave the reasonable, informed person with the impression that an issue was predetermined or that a question was decided on the basis of stereotypical assumptions or generalizations.

10) Admitting hearsay evidence The trial judge erred in law in admitting as information for the Courts consideration hearsay statements by Solicitor Thomas Christie for the Defendant made to The Court

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about the sale price without the use of filed Affidavit proof of claim. The circumstances surrounding the making of the impugned Claims did not have the guarantee of trustworthiness necessary to allow their admission. (PART II STATEMENT OF FACTS, number 19 supra) The trial judge erred in law in both requesting hearsay evidence from Solicitor Thomas Christie for the Defendant than accepting hearsay as evidence before the Honorable Court about the sale price without the use of Filed Affidavit Proof of Claim. The circumstances surrounding the entry into and on record of the hearsay Claims could not have the guarantee of trustworthiness necessary to allow their admission as evidence. NOTE: As this very same hearsay was being heard confusion as to the actual numbers and details required a correction and repetition of the Entry on Record. (PART II STATEMENT OF FACTS, number 20 supra) The trial judge erred in law in admitting as evidence, hearsay statements by Solicitor Thomas Christie for the Defendant, offered to the Honorable Court regarding the outstanding amount owing to RBC - the vendors of the Investment Instrument Mortgagee Deed following a Notice of Mortgage Sale effecting the Property Sale. The information source was the Solicitor for the Tentative purchaser of the Mortgagee Deed whose answer could have been made in error , possibly incorrectly heard over the telephone and or may have alluded to the advantage of his client. The circumstances surrounding the making of the impugned entries On Record did not have the guarantee of trustworthiness necessary to allow their admission. The fundamental concern, with regard to the admissibility of hearsay evidence, is that an out-of-court statement may be relied upon as proof of the truth, used as evidence, without any fair opportunity, through cross-examination, to test its veracity and, consequently, infringes the principles of fundamental justice. Admissibility of evidence should be determined on the basis of threshold reliability provided by circumstantial indicators of reliability and for the most part, by Affidavit, unless circumstances do not permit. The issue of ultimate reliability is for the trier of fact to determine, based on he merits of the case before the Court. Common law exceptions to the hearsay rule remain the law, as interpreted and updated to conform to the twin requirements of necessity and reliability. Additionally, evidence not falling within an exception may be admitted if the requirements of necessity and reliability are established. This retains the certainty and predictability associated with the common law exceptions to the hearsay rule and avoids the need to hold a voir dire when evidence falls within an established exception. Applying these rules to this case, the question is whether an established exception to the hearsay rule applies to the evidence at issue requested by the Court and subsequently presented. The answer in this case is no.

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In R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, CHIEF JUSTICE McLachlin C.J. said the following :

15 The principled approach to the admission of hearsay evidence which has emerged in this Court over the past two decades attempts to introduce a measure of flexibility into the hearsay rule to avoid these negative outcomes. Based on the Starr decision, the following framework emerges for considering the admissibility of hearsay evidence:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In rare cases, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

(See generally D. M. Paciocco and L. Stuesser, The Law of Evidence (3rd ed. 2002), at pp. 95-96.)

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16 Admissibility of evidence is determined on the basis of threshold reliability provided by circumstantial indicators of reliability. The issue of ultimate reliability is for the trier of fact, in this case the jury.

17 The appellant invokes the second and third propositions set out above. His main argument is that the co-conspirators exception to the hearsay rule does not accord with the fundamental criteria that underlie the exceptions to the hearsay rule, necessity and reliability. Alternatively, the question arises whether this is one of those rare cases where hearsay evidence falling within an exception to the hearsay rule should not be admitted because it lacks the necessary indicia of necessity and reliability.

The trial judge erred in law in admitting as evidence, hearsay statements by Solicitor Thomas Christie for the Defendant, made to 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 between the Court Madame Justice Garnet and Solicitor Thomas Christie for the Defendant as directed by Court Madame Justice Garnet that the decision or outcome of the subject trial will hinge on if enough funds are currently left outstanding and sufficient enough to justify the extension as requested by Plaintiff Andre Muray. be left to determined the the sale price o about the outstanding amount owing to RBC before the Auction of the associated investment instrument called a Mortgagee Deed. The information source was the Solicitor for the tentative purchaser of the property whose statement could have been made in error or purposefully misleading to the advantage of his client. The circumstances surrounding the making of the impugned statements did not have the guarantee of trustworthiness necessary to allow their admission. Furthermore as stated above In R. v. Duguay, 2005 NBQB 63 (CanLII) Justice Lucie A. LaVigne stated:

11. states:

Then, when talking about reliability, at page 383, Justice Watt

There are many factors that may help to determine whether the criterion of reliability has been met. They include, but are not limited to,
i. the motive or otherwise of the declarant to speak falsely;

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ii. iii. iv. v. vi. vii.

the timing of the declaration in relation to the event reported; the personality or character of the declarant; the circumstances of the declaration, including whether it was the product of prompting; whether the statement was made under oath or its equivalent; the source of the declarants knowledge; and the presence or absence of litigation when the declaration was made.

The reliability requirement focuses upon threshold, not ultimate reliability. Reliability is a function of the circumstances in which the declaration was made, not the character of the recipient, or the extent to which the hearsay statement is confirmed by other evidence.

The trial judge erred in law in not Ordering an adjournment so that proper evidences of the requested information could be obtained by affidavit and served on the effected parties. The following definition of Hearsay Evidence is found at www.reference.com at the following address: http://www.mylawyer.com/legalinfo.asp?level=3&id=157 Hearsay Evidence The prohibition against admitting out-of-court statements to prove the truth of the matter stated, known as hearsay, is a cornerstone of American trial procedure. Testimony that she told me that John hit Jane is improper because the declarant, or the person who made the original statement to the testifying witness, is not present in court and sworn in under oath. In criminal cases, the rule against hearsay is especially crucial, since a defendant has the constitutional right to confront witnesses testifying against him. Furthermore, the jury is entitled to examine the credibility, demeanor and appearance of a declarant and the admission of hearsay testimony robs jurors of that opportunity. The rule against hearsay is complex due to a myriad of exceptions available to allow the admission of many hearsay statements. Since hearsay is prohibited because it generally goes to prove the truth of the matter, (for example, that John did, in fact, hit Jane), if another reason for the statements admissibility is shown and the declarant is unavailable, the jury will often be allowed to hear the testimony. Federal and state rules of evidence set out the many exceptions to the hearsay rule, including, hearsay statements that are:

excited utterancesI heard her scream, oh no, he shot me;

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proof of the declarants then existing state of mindshe was trying to get away and screaming that he was shooting at her; made for purposes of medical treatmentshe told the paramedic he shot her; recorded or written downdiary entry that he bought a gun; public recordsgun owners license; family recordsold photographs of a gun used in a shooting; or real estate or property records.

Hearsay that does not fall within one of the many specific exceptions can still be admitted under the residual or catch-all exception. Courts will allow hearsay testimony under this exception if the statement has a guarantee of trustworthiness. For example, a newspaper article devoted to the defendants gun collection, including the one used in a shooting, may be admitted under the residual exception.

The following definition of evidence is found at www.reference.com at the following address: http://www.reference.com/browse/evidence evidence evidence, in law, material submitted to a judge or a judicial body to resolve disputed questions of fact. The rules discussed in this article were developed in England for use in jury trials. Today, they are generally observed in all countries having the common law, although they have been extensively modified by statute in some jurisdictions. The first juries were not neutral triers of fact; rather they were convened because of their immediate knowledge of the dispute before the court. Later, the practice developed of having witnesses testify before an impartial jury. The groundwork of the rules of evidence was laid between 1500 and 1700. The Role of Evidence in a Trial; Burdens of Proof In criminal trials, the prosecution has to prove each element necessary to its case beyond a reasonable doubt. In civil trials, on the other hand, a party has the burden only of proving affirmative contentions by a preponderance of the evidence. Thus the plaintiff must offer some proof of each of the elements that combine to constitute the defendant's alleged wrong (see procedure), while the defendant must prove his or her affirmative defenses, e.g., in a suit for negligence, that the plaintiff's own negligence contributed to the injury. Satisfying the burden of proof requires the prosecutor or the plaintiff to present evidence first. At the close of this presentation the criminal or civil defendant may move for acquittal or a nonsuit if admissible evidence supporting necessary contentions has not been offered. Proof may be dispensed with when an adversary formally admits a fact either in the pleadings or in court, or when the court may

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take judicial notice of the fact, i.e., when the fact is universally known or is easily ascertainable by the judge beyond reasonable dispute. In recent years the problems of procuring evidence have been eased somewhat by the introduction of broader discovery (i.e., disclosure) rules. In civil cases, these rules compel each party to a suit to allow the other to have access to its witnesses and to certain types of evidence before the trial. In criminal cases, the judge has the discretionary power to order discovery; in any event, the prosecutor must release all exculpatory evidence on request. Allegedly damaging errors in the admission of evidence are reviewable on appeal if an objection was made during the trial. In their final summing up, the attorneys may make any assertion that is supported to some degree by evidence. British judges and U.S. federal and, in some jurisdictions, state judges are permitted to comment on the credibility of the witnesses and the weight of the evidence. However, the judge must tell the jury that they are not bound by his or her remarks. See also verdict. Admissible Evidence Evidence is often presented in a tense, emotional atmosphere in a courtroom long after the event in question took place. The object of the law of evidence is to assure a high probability that questions of fact are resolved correctly. To that end, material introduced at the trial is ordinarily restricted to items of great probative value; that which may arouse unreasoning passion is ordinarily excluded. The nature of the legal controversy and the written pleadings determine what assertions of fact each party must prove or disprove to win the case, and an item of evidence that at best has a remote bearing on the factual issues must be excluded as irrelevant or immaterial. A judge prefers direct evidence (such as an official document or a witness's assertion of immediate knowledge of the question at issue) to indirect or circumstantial evidence, which merely tends to establish the issue by proving surrounding circumstances from which the principal fact may be inferred. In addition to being relevant, evidence must be competent, i.e., it must not fall under an exclusionary rule. Obviously if the evidence is documentary (e.g., a birth certificate introduced to prove a person's age) or if it is "real" (e.g., a bloody garment exhibited to prove that the victim suffered injury), there can be a question only whether the proffered evidence is itself incompetent. The courtroom presentation of documentary evidence has been complicated by new computer technologies and the digitalization of information, which make the successful forging of texts and photographs far easier than previously. Witnesses

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Most evidence is offered by witnesses who testify before the court. Here, the question of the witness's personal competency must be resolved; it must be shown that the witness was able to know, understand, and remember the matters on which he or she is to be examined. Thus, a witness must possess the sensory faculties needed to apprehend the facts reported and must not be considered mentally ill or incompetent. Children offered as witnesses are examined by the judge to determine their intelligence and understanding. The witness is first directly examined by the party who offers him or her, then is cross_examined by the adversary. No witness may express an opinion on any matter when the jury can draw its own conclusions from the facts; but on technical questions an expert witness (e.g., a physician) may state an opinion. Hearsay declarations (e.g., testimony concerning a statement made out of court by a person not now before the court) usually are excluded on the grounds that the person who made the statement is not available for cross_examination or for evaluation by the judge or jury. Only when the circumstances of the statement afford a high probability of its truth may it be admitted. A witness may be excused from testifying about certain matters if he or she pleads personal privilege. In general, information confided in the course of the relations of attorney and client, priest and penitent, physician and patient, and husband and wife is subject to this privilege. In some jurisdictions such witnesses are incompetent to testify (cannot testify). Witnesses are further protected by the Fifth Amendment privilege of withholding evidence that might be self_incriminating. Criminal defendants have the privilege of refusing to take the witness stand (in which case the jury may make no negative assumptions concerning the reasons for such a refusal) and, in most situations, evidence of previous criminal convictions is inadmissible. Under the common law, parties to a civil suit and the defendant in a criminal action were not permitted to testify, but these rules have been abandoned. Bibliography Among the many modern treatises on the law of evidence those of J. H. Wigmore are often accorded the highest authority. See also studies by M. J. Saks and R. Van Duizend (1983); P. Achinstein (1984); I. Younger and M. Goldsmith (1984); J. H. Friedenthal and M. Singer (1985).

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D PART VI ORDERS SOUGHT

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 of this Court,
b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of

Court,
c) 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 Trial Division Judicial District of Fredericton, d) That the INTENDED RESPONDENT pay costs of the within Motion, e) Such further and other relief as to this Honorable Court may appear just.

f) Pursuant to Rule 62.03 of the Rules of Court, the Court of Appeal grants leave to appeal from the order (or decision) of the Honourable Madame Justice Paulette C. Garnett.,
dated the 10th day of June, 2010 to the Intended Appellant Andre Murray.

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SCHEDULE A

E LISTED AUTHORITIES

1. The New Brunswick Rules of Court at www.gnb.ca/0062/regs/Rule/rule_list.htm 2. www.lectlaw.com 3. www.duhaime.org 4. West's Encyclopedia of American Law, edition 2 5. www.encyclopedia.com 6. mw4.merriam-webster.com 7. http://legal-dictionary.thefreedictionary.com 8. http://www.answers.com 9. http://topics.law.cornell.edu 10. www.reference.com 11. Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 12. Principles of Natural Justice by Justice Smt. Sujata V. Manohar, Supreme Court of India (Retd.) 13. Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 (CanLII) found at TAB.. of The Plaintiffs Submission Court File Number: F/C/104/09
14. MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.)

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

16. Bari c. R., 2006 NBCA 119 (CanLII) 17. R v Bridges, 2005 MBQB 118 (CanLII) 18. R. v. Duguay, 2005 NBQB 63 (CanLII)
19. R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 20. Toronto-Dominion Bank v. Cambridge Leasing Ltd., 2006 NBQB 92 (CanLII) 21. R. v. S. (R.D.), [1997] 3 S.C.R. 484 22. Consequences of a Breach of Procedural Fairness

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F SCHEDULE B TEXT OF RELEVANT PROVISIONS OF STATUTES OR REGULATIONS Maxims Maxim Audi Alteram Partem -Latin; literally 'hear the other side'. Maxim Audiatur et altera pars is a Latin phrase that means, literally, hear the other side 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. Nemo iudex in causa sua (or nemo iudex in sua causa) is a Latin phrase that means, literally, no-one should be a judge in their own cause. It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none: "Justice must not only be done, but must be seen to be done". May also be called: * nemo iudex idoneus in propria causa est * nemo iudex in parte sua

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* nemo debet esse iudex in propria causa * in propria causa nemo iudex Maxim The maxim nemo judex in causa sua debet esse underlies the doctrine of "reasonable apprehension of bias. Relevant New Brunswick Rules of Court state as follows:
Source: http://www.gnb.ca 1.03 Interpretation 1.03 (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits.

2.03 Attacking the Regularity of Proceedings A motion to attack a proceeding for irregularity shall be made within a reasonable time, and shall not be allowed if the party applying has taken a further step in the proceeding after having knowledge of the irregularity. MOTIONS AND APPLICATIONS RULE 39 EVIDENCE ON MOTIONS AND APPLICATIONS 39.01 By Affidavit (1) On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order.

39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing.

62.03 Leave to Appeal (1) Where a party seeks to appeal from (a) an interlocutory order or decision, (b) an order or decision as to costs only, or (c) an order made with the consent of the parties,

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leave to appeal must be obtained by motion to a judge of the Court of Appeal. (1.1) A party who moves for leave to appeal from an interlocutory order or decision may move in the alternative for an extension of time to issue and serve a Notice of Appeal (Form 62B) in the event that the judge hearing the motion rules that the order or decision is not interlocutory. (2) A Notice of Motion for Leave to Appeal (Form 62A) shall be served within 7 days from the date of the order or decision sought to be appealed, or within such further time as is allowed by the judge hearing the motion for leave, and the provisions of Rule 37 apply where not inconsistent with this subrule (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. (5) A judge granting leave to appeal may (a) impose such terms as may be just, and (b) give 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, (b) if a stay of execution or a stay of proceedings may cause the respondent to lose the benefits of the verdict

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or judgment, impose terms to secure the respondents interests, and (c) impose any other terms necessary to prevent prejudice to the respondent.

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


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

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


52.1(1) An action to enforce a lien shall be deemed to be discontinued one year after the action is commenced unless (a) the action has been set down for trial, or (b) an application has been made to a judge of The Court of Queens Bench of New Brunswick for an order continuing the action and a copy of the notice of application has been served on the defendant to the action

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 or court upon a question involved in the proposed appeal and, in the opinion of the Court, it is desirable that leave to appeal be granted,

(b) the Court doubts the correctness of the order in question, (c) (d) the Court considers that the appeal involves matters of such importance that leave to appeal should be granted, or the Court considers that the nature of the issue is such that any appeal on that issue following final judgment would be of no practical effect.

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

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[12]

Under Rule 62.21(1) this Court may render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. In our view, it is appropriate to extend the deadlines set by Rule 37.06(1) and to rescind the decision of January 23, 2006 pursuant to that Rule.

62.21 Powers of Court of Appeal To Draw Inferences and Make Decisions (1) The Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. Further Evidence (2) The Court of Appeal or a judge thereof may receive evidence (a) on interlocutory applications, (b) as to matters which have occurred after the date of the order or decision appealed from, and (c) on special grounds, upon any question of fact. (3) The Court of Appeal or a judge thereof may direct that evidence to be received under paragraph (2) be taken (a) by oral examination in the Court of Appeal, (b) by affidavit, or (c) before an examiner or commissioner under Rule 33. Amendments (4) The Court of Appeal may allow any amendment.\ Where Exercisable (5) The powers of the Court of Appeal may be exercised (a) notwithstanding that the notice of appeal or crossappeal requests that part only of the order or decision be reversed or varied, or (b) in favour of a party who has not appealed from the order or decision. Interlocutory Ruling No Bar (6) An interlocutory order or decision from which there has been no appeal shall not operate to prevent the

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Court of Appeal from rendering any decision or making any order. New Trial or Hearing (7) Subject to paragraph (8), the Court of Appeal may set aside an order, decision or judgment appealed from and may order a new trial or hearing. (8) A new trial may be restricted to any issue, without interfering with the finding or decision upon any other issue. (9) The Court of Appeal shall not grant a new trial on the ground (a) of misdirection, (b) of improper admission or rejection of evidence, or (c) that the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless substantial wrong or miscarriage of justice has resulted; and, if it appears to the Court of Appeal that such wrong or miscarriage of justice affects part only of the matter in controversy or some but not all of the parties, it may direct a new trial as to the part or parties affected. Referral Back (10) The Court of Appeal may refer back to the court appealed from any question of fact for its decision where, in the opinion of the Court of Appeal (a) the court appealed from is in a better position than the Court of Appeal to determine the question, or (b) the court appealed from excluded, or did not consider, evidence which is relevant and admissible. (11) Where, under paragraph (10), the Court of Appeal has referred back a question of fact, the court appealed from shall receive and consider (a) all evidence which the Court of Appeal has held to be admissible and relevant to such question of fact, and (b) all other evidence which the court appealed from considers admissible and relevant to such question of fact. 92-107; 2008-1 62.24 Failure to Comply with Rule (1) Where a party to an appeal or his solicitor is at fault in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may (a) if the party failing to comply is the appellant, (i) dismiss the appeal with costs, including the

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costs of the motion, or (ii) direct the appellant to perfect the appeal within a specified time, (b) set the appeal down for hearing, or (c) make such other order as may be just including an order for payment of costs forthwith. (2) Repealed: 2006-46 2006-46
G LISTED AUTHORITIES FULL DISCISION CITED

SCHEDULE C

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) 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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