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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

E MURRAY APPELLANT (Plaintiff) -andBETTY ROSE DANIELSKI RESPONDENT (Defendant)


NOTICE OF MOTION (FORM 37A)

TO: Solicitor for RESPONDENT (Defendant) Betty Rose Danielski 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 Betty Rose Danielski RESPONDENT (Defendant) Apt 603 166 Carlton Street Toronto, Ont. M5A 2K5

The Appellant will apply to the Court of Appeal at 427 Queen Street, Fredericton, N.B.., on the 9th day of November, 2010, at 10:00 a.m. for an order that: the precise order sought; a) Under the Rules of Court, 62.21 Powers of Court of Appeal To Draw Inferences and Make Decisions and regarding Further Evidence Rule 62.21(2) (b), Rule 62.21(2) (c), and Rule 62.21(3) (b) that this Court may adduce new evidence on the appeal, b) Under Rule 62.24 Failure to Comply with Rule and Rule 62.24(1) and 62.24(1) (c) of the Rules of Court for an order that the Respondent pay costs of the within Motion and the costs of the Appeal forthwith, for dilatory practice and non-compliance with Rule 62.20 Filing and Service of Respondents Submission. Under that rule, the Respondent should have,
according to the Rules of Court (b) serve a copy of the Respondents Submission upon the Appellant, not later than the 20th day of October, 2010, but did not.

c) Should this Honorable Court not find grounds sufficient to award the Appellant costs pursuant to the here within as Appellant above contended non-compliance and or for the evident dilatory practice by the Respondent contrary to Rule 62.20; 62.24(1) and 62.24(1) (c) In the alternative the Appellant seeks Orders that the Respondent shall pay costs of the within Motion. d) Such further and other relief as to this Honorable COURT OF APPEAL may appear just. the grounds to be argued e) This evidence requested to be heard by the Court of Appeal is Affidavit evidence presented to the presiding Appellant Justice on the hearing of the Motion for Leave to Appeal and contains as an exhibit, a copy of the BIDDING PAPERS AND TERMS OF SALE a contractual investment instrument document, referred to in the Appellants Submissions and may be pivotal to the Appeal being allowed,

f) Since the Appellant would always act with reasonable diligence and promptness in representing his case before the Honorable Queens Bench Trial Division Court, moreover, in light of the fact that the Appellant was not permitted to argue or represent his case, as the Learned Trial Judge dominated the entire Court proceeding, consequently, the pertinent evidence required to satisfy the Learned Trial Judges discretionary position, first of all could not reasonably have been anticipated by the Appellant; as the matter scheduled to be heard before the Court was a Motion for a Continuance of the Mechanics Lien Action..

g) Should the Appellant be permitted to adduce evidence, it, would likely have an important influence on the result of the case, and possibly cause the Appellants Appeal to be allowed. h) The within request of adduced evidence shall include a document (a investment instrument) signed by a Solicitor acting for the vendor Royal Bank of Canada and a Solicitor acting as Agent for the Purchaser, 501376 N.B. Ltd, a body corporate, specifically: BIDDING PAPERS AND TERMS OF SALE a Agreement to Purchase Dated: July 16, 2009, these same here within referenced Solicitors, where the sources of the hearsay information presented to the Honorable Court upon which Learned Trial Judge did rely upon and place onto the Court Record as evidence. The Appellants position on this matter points to the blatantly evident conflicts of interest. i) The Appellant requests that in the interests of justice, this fresh evidence be admitted, evidently Appellant Andre Murray was not deficient in the rule of due diligence, because Appellant Andre Murray was not given a fair opportunity by the Learned Trial Judge to present all relevant information and arguments to the Court Furthermore, Appellant Andre Murray could not reasonable have anticipated the learned Trial Judge. j) The Appellant further requests an Order pursuant to Failure to Comply with Rule under Rule 62.24(1) and 62.24(1)(c) of the Rules of Court for an order for payment of costs of the within Motion and the costs of the Appeal forthwith for non-compliance with Rule 62.20, regarding Service of Respondents Submission. Under that rule, the Respondent failed

and evidentially resisted proper Court Document Service protocol, (a code

prescribing strict adherence to correct etiquette and precedence)


according to the Rules of Court. Moreover a copy of the Respondents Submission was required service upon the Appellant according to the Rules of Court, in this case requiring the subject Document Service no later than the 20th of October, 2010, this did not occur. The Solicitor for the respondent, in this matter, has a demonstrable history of non compliance with the Rules of Court 20.02(2), 18.02(1)(a), 18.03(1), furthermore, the Solicitor for the

Respondent has not adhered to The Law Society of New Brunswicks Code of Professional Conduct, CHAPTER 15 Section 2 (iii), 2 (v), 2 (vii) and Section 4, consequently, the Appellant requests the Court to consider this when ruling as to costs of the within Motion and the costs of the Appeal Upon the hearing of the motion the following affidavits or other documentary evidence will be presented: (list the documentary evidence to be used at the hearing of the motion). 1. Affidavit of Andre Murray dated the 17th day of June 2010. 2. Affidavit of Andre Murray dated the 29th day of October, 2010. 3. Ryan v. Law Society of New Brunswick, 2000 CanLII 17232 (NB C.A.) 4. Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) 5. Blanger v. Roussel, 2006 NBCA 2 (CanLII) 6. Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.) 7. Michaud v. Robertson, 2003 NBCA 79 (CanLII) 8. Munn v. Rust, 2006 NBCA 87 (CanLII)

You are advised that: (a) you are entitled to issue documents and present evidence at the hearing in English or French or both;

(b) the Appellant (plaintiff) intends to proceed in the English language; and (c) if you intend to proceed in the other official language, an interpreter may be required and you must so advise the clerk at least 7 days before the hearing. DATED at Fredericton, N.B. this . . . . . . . . . . day of . . . . . . . . . ., 2010

___________________ Andr Murray APPELLANT (Plaintiff) 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Telephone Number: (506) 472 - 0205 E-mail address: andremurraynow@gmail.com