Intended Appellant's Submission Book 2. Leave to Appeal to the COURT OF APPEAL OF NEW BRUNSWICK

7/30/2019 Intended Appellant's Submission Book 2. Leave to Appeal to the COURT OF APPEAL OF NEW BRUNSWICK

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Court of Appeal File Number: 142 -11- CA

(Court File Number: M/C/0642/09)

IN THE COURT OF APPEAL OF NEW BRUNSWICK

BETWEEN:

ANDRE MURRAY

INTENDED APPELLANT (Defendant)

-and-

ROYAL BANK OF CANADA & 501376 N.B.

Ltd., a body corporate,

INTENDED RESPONDENT (Plaintiffs)

Intended Appellants Submission

ADDENDUM

BOOK 2

Filed by self represented

INTENDED APPELLANT ANDRE MURRAY

Intended Appellant

(The Defendant)

Self Represented

Andre Murray

31 Marshall Street,

Fredericton, New Brunswick,E3A 4J8

Telephone Number:

E-mail address:andremurraynow@

gmail.com

Intended Respondent

(The Plaintiffs)

George LeBlanc Solicitor of Record for

ROYAL BANK OF CANADA &

501376 N.B. Ltd., a body corporate

Name of solicitors firm: Cox & Palmer,Address for service: Blue Cross Centre,

Suite 502, 644 Rue Main Street,

Moncton NB E1C 1E2E-mail address: gleblanc@

coxandpalmer.comTelephone number: Main 506 856 9800Telephone number: Direct 506 382 4529

Fax 506 856 8150

Web coxandpalmer.com


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Intended Appellants Submission 2

An index of the contents;

A. October 21, 2011, Decision Order 1,Permission for numbered Company to withdraw from Action_______1

B. October 21, 2011, Decision Order 2,Striking Defendants Affidavits____________________________ 10

C.

October 21, 2011, Decision Order 3,Rescinding Orders_______________________________________ 12

D. October 21, 2011, Decision Order 4,Rank of Priority to Possession of the Premises Between a

Mortgagee and a Tenant_________________________________ 115

E. October 21, 2011, Decision Order 5,Termination of Tenancy __________________________________ 191

F. Schedule AA list of authorities in the order referred to in the Submission_____ 227

G. Schedule BThe text of all relevant provisions of Statutes or Regulations _____ 235


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- Legal Maxim, The welfare of the people is the supreme law.Broom's Legal Maxims(max. 1-10), also Bacon's Maxims (reg. 12)

- Maxim - Longa possessio parit jus possidendi, et tollit actionem verodomino. Long possession produces the right of possession, and takes awayfrom the true owner his action. Co. Litt. 110.

- Maxim - Possession is nine-tenths of the law.

Decision Order 1

Numbered Company seeks Permission of Honorable Court to withdraw

from this Action

1. The Learned Trial Judge did make an error in law by misapprehending

the facts before the Court, and misapprehending the application of Rules of

Court, Rule 25.01 and Rule 25.03 regarding of Intended Respondent 501376

N.B. Ltd. a body corporate where it seeks permission to withdraw from the

subject Action file Number M/C/0642/09. Abundant evidence had been

provided the Honorable Court hearing the herewithin subject matter that a

CONSTRUCTIVE NOTICE including a Mechanic Lien also a NOTICE OF

ACTION with STATEMENT OF CLAIM, further, including the Certificate ofLes Pendens all of the herewithin listed documents were Registered with

SERVICE NEW BRUNSWICK Land Titles Office no later than April 2009.

despite this NOTICE and or Put on Notice Respondent 501376 N.B. Ltd. a

body corporate having admitted and or confirmed the fact that they were

reasonably aware of these circumstances of Intended Appellant Andr Murrays

therefore, establishing Intended Appellant Andr Murrays evident equity

investment; despite this fact and or perhaps because of this evident equity

investment in property subject of the MORTGAEE DEED the Respondent

501376 N.B. Ltd. a body corporate choose to take advantage of an opportunity

to profit at the expense and or loss of Intended Appellant Andr Murray, it


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appears the Intended Respondent 501376 N.B. Ltd. a body corporate was happy

to own the Mortgagee Deed, which it had successfully won at the Auction bid

for at the Mortgage Auction, together with their only conditional which was

the object of eliminating the Intended Appellant Andr Murray as a Lien holder

Registered against the Title, which in Appellant Andr Murrays opinion is an

unscrupulous act of manipulation of the legal system, further an act intended to

consciously abscond, typically to avoid detection of seizing Intended Appellant

Andr Murrays equity investment in subject property.

2. Intended Respondent 501376 N.B. Ltd. a body corporate was evidently

not satisfied with having only purchased the INVESTMENT INSTRUMENT

called a MORTGEE DEED at Auction July 16, 2009, and instead attempted to

assist and or work together with the ROYAL BANK of CANADA (Mortgagee)

for a period of not less than one year to cause Vacant possession of the

Residential Property, subject of the Mortgagee Deed; the benefit which the

Intended Respondent 501376 N.B. Ltd. a body corporate hoped to realize

should Vacant Possession of the subject Residential Property be accomplished

is as follows: the POWER of SALE provisions in pursuance with the NEW

BRUNSWICK PROPERTY ACT would eliminate all equity and or claims of

equity held by Intended Appellant Andr Murray.

3. Since the Intended Respondent 501376 N.B. Ltd. a body corporate

eventually realized that their goals of extinguishing the Registered Mechanic

Lien from the Title, thereby, obtaining the equity of Intended Appellant Andr

Murray further clearing the subject Property Title of Registered encumbrances

the Intended Respondent 501376 N.B. Ltd. a body corporate has

consequentially been attempting to withdraw without costs.


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4. In fact as any one must reasonably recognize that Intended Respondent

501376 N.B. Ltd. a body corporate having confessed prior to subject Mortgagee

Deed Auction further to their performance of DUE DILAGENCE, Respondent

501376 N.B. Ltd. a body corporate realized the major encumbrances Registered

against said subject property are also held by the Residential Leasehold Tenant

furthermore, must therefore have realized that the act of attempting to purchase

the MORTGAEE DEED by itself represented no threat of equity loss to the

holder of the CONSTRUCTIVE NOTICE Andr Murray unless Intended

Respondent 501376 N.B. Ltd. a body corporate attempted to enforce the

POWER OF SALE provisions in pursuance of the NEW BRUNSWICK

PROPERTY ACT alternatively speaking for the INTENDED Respondent

501376 N.B. Ltd. a body corporate acting in attempting to accomplish the

above mentioned VACANT POSSESSION, therefore, could only mean that the

Intended Respondent 501376 N.B. Ltd. a body corporate intended to deprive

Intended Appellant Andr Murray of his equity investment.

5. Please note that VACANT POSSESSION was not legally possible if

properly pursued under Auspices of the government appointed Chief

Rentalsmen who is to administer all matters of Residential Tenancy in

pursuance with the RESIDENTIAL TENANCY ACT of NEW BRUNSWICK

further, as the LEGISLATIVE ASSEMBLY of NEW BRUNSWICK had in

their wisdom found imperative to protect all Residential Tenants from harm of

such CARPETBAGGER practices (as herein described) therefore,

consequentially, to one degree or another, victimizing Residential Tenants of

NEW BRUNSWICK the LEGISLATIVE ASSEMBLY of NEWBRUNSWICK issued the RESIDENTIAL TENANCY ACT as constituting the

grammatical mood that expresses the will to influence the behaviour of another


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in such circumstances as these by including the words NOTWITHSTANDING

all others.

6. In fact had Intended Respondent 501376 N.B. Ltd. a body corporate

respected the herewithin above mentioned CONSTRUCTIVE NOTICE inter

alia and been therefore satisfied with having obtained a FINANCIAL

INVESTMENT INSTRUMENT the MORTAGEE DEED without having to

deprive Andr Murray of his properly filed Mechanic Lien inter alia protection

of his investments for that reason the NOTICE OF ACTION filed September

18, 2009 would never have become necessary and or would never have

occurred except for their own unrepentant greed. For this their aggression

against Andr Murray they dare to insist upon costs furthermore Intended

Respondent 501376 N.B. Ltd. a body corporate deny all responsibility for their

having initiated this entire scenario.

7. The September 18, 2009 initial Notice of Action and Statement of Claim

filed by the Intended Respondents, against Andr Murray as Defendant was

alleged to have been motivated to and or claimed to be requiring VACANTPOSSESSION of residential property associated with the Financial Investment

Instrument a Mortgage sold at Auction Sale which occurred July 16, 2009 and

the intention of the Mortgagee Royal Bank of Canada to transfer a Mortgagee

Deed, to Intended Respondent 501376 N.B. Ltd. a body corporate, who was the

alleged tentative successful bidder at said July 16, 2009 Mortgage Auction Sale.

8. It becomes clear that Intended Respondent 501376 N.B. Ltd. a body

corporate as successful bidder at said July 16, 2009 Mortgage Auction Sale had

an intended goal of Vacant Possession of the subject Residential Property of

which the mortgage is registered against therefore Intended Respondent


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501376 N.B. Ltd. a body corporate wasted no time in allegedly posting

NOTICE TO VACATE at 29 Marshall Street Fredericton same day as the

subject MORTAGE AUCTION SALE ended July 16, 2009.

9. September 18, 2009, 501376 N.B. Ltd. a body corporate having

successfully July 16, 2009 at Auction bid for ownership of a Financial

Investment Instrument (Mortgage) did subsequentially together with ROYAL

BANK of CANADA file Notice of Action and Statement of Claim, for Court

Order inter alia to vacate the Intended Appellant from 29 Marshall Street,

Fredericton, which resulted in an impugned attempt to cause VACANT

POSSESSION of the property relative to Property Title and the Mortgagee

Deed registered against same.

10. Please note Intended Respondent 501376 N.B. Ltd. A body corporate

initiated the entire conflict from the beginning and could have been avoided had

Intended Respondent 501376 N.B. Ltd. A body corporate respected the

CONSTRUCTIVE NOTICE inter alia therefore registered against subject

property Title for which the Mortgage had been issued.

11. Further complicity between the Intended Respondents occurred in the

misrepresentation of their so called facts as can be found in the September 18,

2009 STATEMENT of CLAIM as attached to the NOTICE of ACTION please

see: paragraph 8 : excerpt reads: Pursuant to the bidding papers and terms of

sale, the property was due to close within 20 days from the date of the sale,

however, the plaintiffs have been unable to complete the sale of the property as

a result of the defendants refusal and or neglect to vacate the property.

12. This above provided subject excerpt from the September 18, 2009

STATEMENT of CLAIM paragraph 8 is an erroneous position in logic and


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obfuscation of the facts as the facts relate to the word property therefore the

NOTICE OF SALE as advertised was for a property called a Mortgage and did

not offer the sale of a property other than what could be reasonably

comprehended to be the only property therefore referred to which was the

Financial investment instrument called Mortgage.

13. Please consider that had the Intended Respondent 501376 N.B. Ltd. a

body corporate, attended that subject July 16, 2009 Mortgage Sale, and been

satisfied to possess the Financial Investment Instrument property called

mortgage, than a MORTAGEE DEED would have been sufficient, regrettably

it appears that the Intended Respondent 501376 N.B. Ltd. a body corporate

was integral to beginning this subject lawsuit, as they intended to deprive the

Intended appellant of his registered lien resulting in the loss of all Andr

Murrays equity to the financial gain of Intended Respondent 501376 N.B. Ltd.

a body corporate. A gain obtained by less the genuinely sincere means.

14. Greed motivated Intended Respondent 501376 N.B. Ltd. a body

corporate, to attempt to abscond with the equity of the intended Appelant in thiscase moreover there has been abundant evidence providedto the Honorable

Court of first instance that this was the case for that reason to allow the

Intended Respondent 501376 N.B. Ltd. a body corporate to withdraw without

costs is an error in law as a misapprehension of the facts as provided where not

considered by the honourable Court.

15. The Intended Appellant did not agree or consent to the withdrawal of the

numbered Company (Intended Respondent 501376 N.B. Ltd. A body

corporate), but should the Court grant as requested that the numbered company


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be able withdraw then it is only fair that they pay costs according to Rule 25.03

of the Rules of Court.

16. Rules of Court Rule 25.01 and Rule 25.03 is reproduced as follows:

25.01 Discontinuance by Plaintiff

A plaintiff may discontinue his action against a defendant, either inwhole or in part

(a) at any time before the close of pleadings,

(b) after the close of pleadings, with leave of the court, or

(c) at any time, with the written consent of all parties by

(d) filing with the clerk a Notice of Discontinuance(Form 25A), and

(e) serving a copy of the Notice of Discontinuance on all parties whohave been served with the Statement of Claim.

25.03 Costs on Discontinuance or Withdrawal

A party wholly discontinuing an action or wholly withdrawing hisStatement of Defence against another party shall pay the costs of the

other party to date, including the costs of any cross-claim or third partyclaim, unless the court orders or the parties agree otherwise.

17. The Court did break with the rules of Court and judicial custom to not

award the Intended Appellant with costs associated as a result of the evident

significant role that which was played by Intended Respondent 501376 N.B.

Ltd. a body corporate prior to requesting that they may withdraw from the

action.

18. In New Brunswick Federation of Snowmobile Clubs et al. v. New

Brunswick All-Terrain Vehicle Federation et al., Summary Judgment

Application, 2006 NBQB 149 (CanLII), Justice Peter S. Glennie awarded costs


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against a Plaintiff who was discontinuing its action against personal Defendants

at paragraph 2 and paragraph 33 as follows: (http://canlii.ca/s/szy4)

[2] At the commencement of the hearing of this motion, Counsel for thePlaintiff advised the Court that the Plaintiff was discontinuing its actionagainst the personal Defendants, namely Tim Clarke, Larry Steele, FredHicks, Cory Elliott, Scott Smith, Jeff Brewer, Mike Gionet, Gary Mooreand Doug Rowe leaving The New Brunswick All-Terrain VehicleFederation Inc. and the Saint John ATV Club Inc. as the two remainingDefendants. I will deal with the issue of costs relating to the personalDefendants later in this decision.

[33] The issue of costs for each of the personal Defendants droppedfrom the Plaintiffs' action was left to the Court. In this regard, I awardeach of Tim Clarke, Larry Steele, Fred Hicks, Cory Elliott, Scott Smith,Jeff Brewer, Mike Gionet, Gary Moore and Doug Rowe costs in theamount of $1,000.00 each for a collective total of $9,000.00 inclusive ofdisbursements payable by the Plaintiffs forthwith.

19. The Rules of Court state clearly that as a consequence of a party wishing

to withdraw from an Action, they, the withdrawing Party will pay costs to date

to the remaining opposite party. The Intended Appellant did argue that if the

Intended Respondent 501376 N.B. Ltd. a body corporate, wanted to withdraw

from the litigation which it had in fact initiated, then it is only fair, further

according to the Rules of Court and judicial custom to award cost to the

remaining Defendant.

20. As the award of costs, is considered to be a matter within the discretion of

the Trial Judge, the Intended Appellant will demonstrate that a grossly unfair

allocation amounts to an error of principle, further, that the exercise of the Trial

Judges discretion in this matter was affected by error in principle and or by

misapprehension of the facts involving Reasonable Apprehension of Bias.


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

never works an injury, or does a wrong. The Intended Appellant claims the

Learned Trial Judge erred in abuse of his discretion by not awarding Costs in

favour of the Defendant is manifestly without merit, therefore excessively

disproportionate, consequentially, unbalanced substantial injustice and serious

injustice would result if this lack of Cost award is allowed to stand.

22. 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 ona clearly erroneous finding of a material fact. U.S. v. Rahm, 993 F.2d1405, 1410 (9th Cir.'93). A court may also abuse its discretion when therecord contains no evidence to support its decision. MGIC v. Moore,952 F.2d 1120, 1122 (9th Cir.'91)

.. judicial discretion must be exercised fairly and impartially, and ashowing to the contrary may result in the ruling being reversed as an

abuse of discretion.

23. Abuse of Discretion is defined by answers.com at the following website:

http://www.answers.com/topic/abuse-of-discretion

Abuse of DiscretionA failure to take into proper consideration the facts and law relating to aparticular matter; an arbitrary or unreasonable departure fromprecedents and settled judicial custom.

Where a trial court must exercise discretion in deciding a question, itmust 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 forreversing a decision on appeal.


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24. The Learned Trial Judge did disregard the investment of time, resources

and energy which the Intended Appellant did undergo to provide service of the

copies of relevant Court documents to the numbered company. The Solicitor for

the Numbered Company was in Fredericton, while the Solicitor for the Royal

Bank of Canada was in Moncton, creating logistical and difficult service issues

to overcome, so as to serve both parties on time and according to the Rules of

Court. The Intended Appellant did have to invest the time, energy and resources

to Defend claims made by Intended Respondent 501376 N.B. Ltd. a body

corporate, it is only fitting and just that once that party withdraws their claims

the party who was subject to respond to those very claims may be compensated

with cost.

25. Manifest Abuse of Discretion is when the Courts decision is unsupported

by the evidence and clearly on erroneous finding of a material fact, the Intended

Appellant claims that the Learned Trail Judge has demonstrated Manifest

Abuse of Discretion, in not awarding cost in favour of the Intended Appellant

in these circumstances and it would be a disservice to the administration of

justice to allow this decision to stand.

Decision Order 2

Striking Defendants Affidavits

26. The learned trial judge has erred in law as he displayed palatable and

reasonable apprehension of bias in favour of the plaintiffs in his Conclusions-

motion filed January 25th

, 2011: declares that all these parts of the various

affidavits of Andre Murray, that where expressly identified and disputed by the

Royal Bank of Canada in this Motion (see Record on motion filed March 17th,


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2011 and Plaintiffs Pre-hearing Brief on Motion) shall be struck from these

affidavits.

27. The above herewithin Conclusions are especially rife with errors in law of

such a widespread occurrence of erroneous conclusions not found in fact,

moreover, alternatively where fact does exist as found within Official

Transcripts provided for the Honorable Court within said Transcripts which

subject Affidavits pointed to the evidence of Fraud Upon The Court as

alleged against Solicitor George H. LeBlanc the learned trail judge displays

misapprehension of the evidentiary facts which the Intended Appellant

experiences as a reasonable apprehension of bias.

28. The costs awarded are manifestly wrong and unjust as all research was

meritorious accumulated by the Defendant in that matter (Intended Appellant in

this matter) and without a dough established that Fraud Upon the Court had

occurred and this subject Fraud was instrumental in obtaining Court Orders by

misrepresentation of facts which had in the first place caused the ex parte

(without notice) Court Hearing and harmful illegal Court Orders to be grantedas requested .

29. The learned trial judge displayed a reasonable apprehension of bias

when the learned trial judge in his DECISION ON FIVE MOTIONS October

21, 2011 paragraph 101, 102, 103, and 104 confirms that he indeed attempts to

persuade the Defendant to voluntarily remove his accusations against Solicitor

George H. LeBlanc of Fraud Upon the Court inter alia. re The Intended

Appellant does verily believe those allegations as presented accusations against

Solicitor George H. LeBlanc of Fraud Upon the Court inter alia therefore


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declined the Learned Trial judges persuasion to voluntarily remove these

subject assertions from my Affidavit.

Third Motion Originally filed Nov 16, 2009 Amended several times last

version Filed on November 19, 2010 Decision Order 3

Rescinding Orders

30. As pointed out in paragraph 109 it had become necessary, resulting from

the accusations of the Defendant that Solicitor George H. LeBlanc had

committed Fraud Upon the Court in order that George H. LeBlanc may

obtain the Orders as requested and found within his Clients September 18,

2009 Notice of Action and Statement of Claim; therefore George H. LeBlanc

did retain solicitor Edwin Ehrhardt of Law Firm: Bingham Robinson

Maclennan Ehrhardt Teed to speak in George H. LeBlancs stead. As Intended

Appellant comprehends the need for George H. LeBlanc to retain solicitor

Edwin Ehrhard was that Solicitor George H. LeBlanc had to avoid makingfurther statements that may therefore further incriminate himself regarding the

matter of how he obtained the Court Orders from hearing of October 20, 2009

ex parte and without Notice to the Defendant.

31. The Learned Trial Judge errored in paragraph 107 in misapprehending

and or confining the quantity of Orders requested rescinded, from the October

20, 2009 ex parte without Notice hearing.

32. The Learned Trial Judge errored in law as confirmed in his paragraph 108

as indicated abundant numerous Affidavit reasonably substantive material was


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omitted and or rejected as material to be considered therefore reasonably

causing misapprehension of the Material facts.

33. The Learned Trial Judge in paragraph 124 reveals a reasonable

apprehension of bias as we see unsubstantiated furthermore, conclusions are

found not in fact and entirely causing or tending to be or appear o be

preconceived judgment or convictions therefore, exactly opposite; contrary to

the evidence as provided to the Honorable Court at the very least and not any

less significant is this palpable misapprehension of the evidence.

34. The Learned Trial Judge in paragraph 126 reveals a reasonable

apprehension of bias again by trusting in so called abundant and corroborating

evidence provided by as must be the case Solicitor George H. LeBlanc, who

was revealed as lying on his own Affidavit and force to recant also and not any

less guilty of perjury was Solicitor George H. LeBlancs process server Dave

Daneliuk who was also forced to recant on his own Affidavit having been

revealed as not speaking the truth under oath.

35. The Learned Trial Judge in paragraph 127 reveals error in law by a

palatable reasonable apprehension of bias accompanied by misapprehension of

the evidentiary evidence as provided before the Court, proving that in fact the

exact opposite conclusions would reasonably be found by the Honourable

Court.





Court.


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Court.





Court.





Court.





Court.





Court.


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Court.





Court. This conclusion as found in paragraph 135 appears to dismiss the facts

as found within transcripts provided confirming that George H. LeBlanc had

laid the foundation for the resulting non Amended Motion as recognized by

the Honorable Court as this was an attempt by George H. LeBlanc to further

confuse matters regarding his erroneously alleged avoidance of service

propaganda against Defendant Andre Murray, when in fact the entire method of

operation was highly synchronized beginning with the September 18, 2009

filing of the Notice of Action which was never attempted to even be sent in a

manner that could arrive (Acadian Bus Line) into process server Dave Daneliuk

hands in Fredericton reasonably before October 7, 2009, that being only 3 days

before the Rules of Court require Service. Furthermore, the subject Amended

Notice of Motion never requested a abridgement of time for service according

to rules of court and an Affidavit for service of same does not exist.

44. The Learned Trial Judge in paragraph 136 reveals and admits his error in

law.


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Court.





Court.





Court.





Court.





Court.


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50. The Learned Trial Judge in paragraph 142 reveals and admits his error in

law.





Court.





Court.

Conclusions Third Motion

53. Intended Appellant here within, has where relevant, provided a summary

of the events which lead up to the October 20, 2009 Hearing of a Motion which

the Intended Appellant wished to have rescinded.

54. The Intended Appellant is of the view that the New Brunswick Chief

Rentalsmen, in pursuance to the New Brunswick Residential Tenancies Act, are

the only authority who have Jurisdiction to rule on matters concerning New

Brunswick Residential Tenancies, with the exceptions as enumerated within the

New Brunswick Residential Tenancies Act.

55. The Intended Appellant believes that the motivating factor, on the part of

the Intended Respondents in Initiating the subject Notice of Action and

Statement of Claim Court File date stamped September 18, 2011 is to


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extinguish the Intended Appellants Mechanics Lien inter alia which are

Registered as encumbrances against the Title of the said property and subject of

the Mortgage offered at Auction July 16, 2009. A Mechanic Lien Registered

against any property in New Brunswick can be extinguished through the Power

of Sale provision in pursuance with the New Brunswick Property Act.

56. Regarding rescinding the October 20, 2009 Orders, pursuant to Rules of

Court, Rule 37.06 the Intended Appellant did rely on Canadian Civil Procedure

Law which states an ex parte order made, will only be effective for a short

period of time as the Courts customarily set aside any order that may have been

made in the absence of full disclosure.

57. According to Canadian Civil Procedure Law page 480, 7. 11 -

"Generally, where an ex parte order is made, it will only be effective fora short time period. If the moving party wishes to continue it, then it is

necessary to obtain an extension on the specified return date for the

order."

58. According to Canadian Civil Procedure Law page 483, 7. 14 -

"The courts insist that full disclosure of all material facts must be madeon an ex parte motion. Where such disclosure is not made, the courts

may subsequently set aside any order that may have been made in the

absence of such disclosure."

59. The Intended Appellant does rely on the following Maxim:

Maxim - Longa possessio parit jus possidendi, et tollit actionem verodomino.

Long possession produces the right of possession, and takes away fromthe true owner his action. Co. Litt. 110.


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60. The Intended Appellant Andr Murray has been in continuous possession

of the subject property; six consecutive years without incident, has a lawful

right of possession and legal standing under the Residential Tenancies Act of

New Brunswick.

61. Intended Appellant Andr Murray has dutifully maintained the subject

property, to the financial benefit of the Mortgagee Royal Bank of Canada, any

tentative purchaser and Title Holder Betty Rose Danielski.

62. According to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 under

Application of Act, we see:

2 Except where otherwise specifically provided for in this Act, this Actapplies to tenancies of residential premises and tenancy agreementsrespecting such premises,

(a) notwithstanding the Landlord and Tenant Act or any other Act,agreement or waiver to the contrary; and

(b) arising or entered into before or after this Act comes into force.

63. According to Intended Appellant Andr Murrays understanding of the

Residential Tenancies Act of New Brunswick, the exercising of the Power of

Sale conferred by s.44 of the Property Act, R.S.N.B. 1973, c.P-19, procedures

would not affect the Tenancy of Defendant Andr Murray because the

Application of the Residential Tenancies Act, Section 2 states:

Except where otherwise specifically provided for in this Act, this Act applies to

tenancies of residential premises and tenancy agreements respecting such

premises (a) notwithstanding the Landlord and Tenant Act or any other Act,

agreement or waiver to the contrary;


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which would include the New Brunswick Property Act and any Mortgage

contract that allegedly may exist but has yet to be confirmed as existing, which

is another oversight and misapprehension of the facts by the learned Trial

Judge.

- Legal Maxim -The welfare of the people is the supreme law.Broom's Legal Maxims (max. 1-10), also Bacon's Maxims (reg.12)

64. Intended Appellant Andr Murrays view is that Legislative Assembly in

drafting The Residential Tenancies Act of New Brunswick intentions were to

create and or to protect the Rights and the welfare of the Tenants and Landlords

of New Brunswick.

Maxim - Domus sua cuique est tutissimum refugiumTo everyone hishouse is his surest refuge.

65. Intended Appellant Andr Murray is one of those Tenants, The

Residential Tenancies Act of New Brunswick was created to protect, which

enshrines the maxim To everyone his house is his surest refuge and the

Defendant asks the Court to act to defend the rights of the Tenant, so justly

needed.

Maxim A contract founded on a base and unlawful consideration, or

against good morals, is null.

66. A Claim by the Solicitor George H. LeBlanc that a Mortgage contract

grants the Mortgagee the power or right of eviction of a Tenant in good

standing must have been found base and or reasonably upon unlawful


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consideration, or against morals of the public good, and therefore would

reasonably cause such a Mortgage contract to be null and void.

Maxim - Caveat emptor (let the buyer beware).

67. Furthermore, of significance and of undeniable relevance, must be the

fact that the Plaintiffs in this matter have signed a contract between each other

(Vendor Purchaser) which stated clearly that;

QUOTE; the Purchaser is to accept the real estate, subject to existingtenancies, and any registered restrictive covenants, if any, as they exist

at the date thereof. (Please see: Record on Motion, filed byAndr Murray, Book 1, page 492 -493, paragraph 8).

68. Considering the facts of paragraph 8 in the Bidding Papers & Terms of

Sale state: The purchaser accepts the real estate, subject to existing

tenancies, and any registered restrictive covenants, if any, as they exist at the

date thereof. It appears to Defendant Andr Murray that the undertakings

found within the Bidding Paper and Terms of Sale of the signing contractual

parties are in blatant stark contrast to the subsequent actions of the vendor; in

this case R.B.C and the tentative purchaser; in this case, 501376 N.B. Ltd. a

body corporate.

69. To side step the legal protection afforded by law to all tenants by

Rentalsmen of New Brunswick, Perhaps the Royal Bank of Canada attempted

through attrition inter alia litigating the Defendant out of his Residential

Leasehold home and lawful Tenancy since April 1, 2005 in not sincere. This

behaviour is detrimental to the society as a whole and if left unchecked couldencourage others to do the same.


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Maxim - Acta exteriora indicant interiora secretaExternal actionsshow internal secrets, i.e., intention may be inferred from a person's

actions.

70. Character assignation of George H. LeBlanc was not the intention of Law

neophyte and Defendant Andr Murray. It was only after thorough examination

of all Affidavits, only after reviewing and considering the circumstances, as laid

out and found there within the Court Filed evidentiary affidavits, as filed within

the Court of Queens Bench, did Defendant Andre Murray realize

discrepancies, relating to this case and was at a loss, as to how it could be, that

the Process Server Dave Daneliuk by way of Sworn affidavit Claimed that on

October 5, 2009 to have documents in hand for service upon Defendant Andr

Murray, when by Court Brief of Solicitor George LeBlanc, Dated: October 16,

2009 states, that Solicitor George LeBlanc never received the Court documents

back from Queens Bench, for Service, until no sooner thann October 5, 2009

which begged the question, how could Process Server Dave Daneliuk say by

Affidavit that he is holding the documents in Fredericton on the early morning

of October 5, 2009, at the same time George H. LeBlanc is receiving them inMoncton! How it is that the Process Server by way of affidavit Claimed that on

Monday the 5th to have documents in hand, conversely when by affidavit of

Solicitor George LeBlanc DATED January 13, 2010 states that George he

never sent the Documents for Service till the 6th which begged the question how

could Process Server Dave Daneliuk by Affidavit be holding the documents on

the 5th How could Process Server Dave Daneliuk record the minutes of three

different visits to 29 Marshall Street while allegedly attempting Service of

Court Documents throughout Monday the 5th

day of October at the Subject

property at Marshall Street, City of Fredericton.


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71. NOTE: Process Server Dave Daneliuk claims; three visits in one day

Monday the 5th day of October, which always involves a loud knocking session

on the various doors, as he has stated in affidavit of date October 14, 2009.

Monday, October 5th, 2009 at 7:30 a.m;

2:00 p.m. (drive-by)

9:00 p.m. for about 20 minutes.

72. Has this three visit day which never truly occurred been discounted

from the bill for services rendered to Royal Bank of Canada!? Later much later

and after this discrepancy is brought to his attention by Affidavit evidence

submitted by Defendant Andre Murray, Process Server Dave Daneliuk amends

his affidavit and begins to call himself David A. Daneliuk!

73. Process Server Dave Daneliuk amends his multiple affidavits of service to

deny that three separate failed service attempts which his earlier Affidavit

Swore occurred, actually never did happen at the Defendants address of 29

Marshall Street on that day

Monday, October 5th, 2009 7:30 a.m;

2:00 p.m. (drive-by)

9:00 p.m. for about 20 minutes.

74. This is implausible to the Intended Appellant Andre Murray. How does

someone, who claims to be professional and is apparently recording the details

of each and every visit to the point of recording minutes of each visit suddenly

decide that the three visits involving Monday, October 5th

, 2009 at 7:30 a.m;

2:00 p.m. (drive-by) and 9:00 p.m. for about 20 minutes. A three visit daywhich never truly occurred.


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75. Referencing paragraph 12) of the Affidavit of Process Server Dave

Daneliuk Dated October 14th 2009 and found as exhibit G of Affidavit George

LeBlanc DATED 13th day of January, 2010, page 640 of Record on Motion

Book 1or alternatively Page1342 of ADDENDUM Record on Motion.

76. This Honorable Court must consider that Process Server Dave Daneliuk

states On several occasions, I could hear someone inside, but no one would

answer the door or show their face. Defendant Andr Murray suggests that if

Process Server Dave Daneliuk heard the above sounds on the day Monday,

October 5th, 2009 at 7:30 a.m; 2:00 p.m. (drive-by) and 9:00 p.m. for about 20

minutes .. Quote of Process Server Dave DaneliukOn several

occasions, I could hear someone inside, Intended Appellant Andr Murray

wonders where these scenarios occurred, but assures this Honorable Court it

was not at 29 Marshall Street nor at 31 Marshall Street. Further to this point it is

incomprehensible to Intended Appellant Andre Murray that a professional

Process server is recording the minutes of each and every visit and contrary to

reasonable thought, what could now be reasonably considered is the

questionable and evidentially improper filing procedures of Process Server

Dave Daneliuk having misplaced a whole day of Professional activity, and

consisting of three separate visits involving loud knocking also I could hear

someone inside,. Questions must occur in the reasonable mind, such as, where

did this Monday, October 5th, 2009 go, and into whos file has it been placed

into, and consequentially, whos files have been misplaced into Intended

Appellant Andr Murrays file!

77. In light of revelations of the blatant Prejudice of Process Server Dave

Daneliuk against Defendant Andr Murray, any reasonable person must ask


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themselves, why did, Solicitor George LeBlanc permit this Process Server to

remain in his Service!?

78. Intended Appellant Andre Murray is not relying on hearsay or hypothesis.

The facts are laid out by the Plaintiffs, by way of their own affidavits, and

consequentially can be, chronologically, assembled, which will and or does

clearly reveal the numerous blatant discrepancies, between that which could be

and conversely, the physically impossible.

79. Dave Daneliuk claims that Defendant Andre Murray is barred from

shopping in Atlantic Superstore.

80. The above barred is a slanderous allegation, it is entirely false.

Defendant Andre Murray is not now and never has been barred from shopping

in Atlantic Superstore furthermore, Defendant Andre Murray does not currently

have a criminal record not has Andre Murray ever had a criminal record as has

been alleged and found within affidavits of Dave Daneliuk.

81. We must continue to review Dave Daneliuks affidavits. (Please see

Affidavit of George H. LeBlanc signed January 13, 2010 tab E page 636

Record on Motion Book 1) Note; Great urgency is expressed, in the letter Dated

October 6, 2009 sent from George LeBlancs law Office in Moncton first to

Atlantic Document Service Ltd. 106 Greywood Court, Riverview N.B. E1B

5N2 which, than is the same day 4:37 p.m. forwarded to Process Server Dave

Daneliuk in Fredericton N.B. at Provincial Security and Investigation Services

Ltd.

82. Regarding this matter Defendant Andre Murray has confirmed with

Acadian Bus Lines furthermore, as Defendant Andre Murray talked with Miles


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an attendant customer service employee at the Acadia Bus Lines location in

Moncton at 1 -506 - 859 - 5060 # extension 3. Miles said he remembered the

drop off of the package for delivery to Fredericton as he often enough, serves

Atlantic Document Service Ltd. 106 Greywood Court, Riverview N.B.. Miles

continued to search for that date on the company computer and located the

Atlantic Document Service Ltd. customers file which indicated that a drop off

occurred at Acadian Bus Lines on the 6th

, 4:37PM - left an hour later Way Bill

number 0040078072 (Confirmed) Bus departure time: 17:30 bus arrival time

reportedly (usually 7:45PM).

83. May it please this Honorable Court the events which begin to unravel

appear to occur and appear to be in response to the Letter (Please See: Affidavit

of George H. LeBlanc Dated January 13, 2010, found in Exhibit E page 636

Record on Motion Book 1) written by Solicitor George LeBlanc Dated October

6, 2009 and sent from George LeBlancs law Office in Moncton. The letter is

first sent to Atlantic Document Service Ltd. 106 Greywood Court, Riverview

N.B. E1B 5N2 which forwarded to Process Server Dave Daneliuk in

Fredericton at Provincial Security and Investigation. Defendant Andre Murray

notes a tone which is set by the letter of Solicitor George LeBlanc. Defendant

Andre Murray provides the following excerpt from the above here within

mentioned Letter of Solicitor George LeBlanc Quote: Please note that this

must be served on a rush bases and in any event no later than October 10th,

2009. Also Intended Appellant Andre Murray also notes from same letter and

provides another excerpt from same above letter, for this Honorable Court to

consider, Quote:Please exercise caution when serving.


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84. Affidavit October 14, 2009 of Process Server Dave Daneliuk confirms

that which amounts to Process Server Dave Daneliuk allegedly having traveled

only five separate days in attempts to allegedly Process Serve Defendant Andre

Murray; Process Server Dave Daneliuk must after, Defendant Andre Murray

reveals the errors found in Affidavit of Dave Daneliuk, a retraction Affidavit is

than provided consequently reducing alleged visits to 29 Marshall Street down

to four separate days which will be proved by Defendant Andre Murray could

not have been more than two days possibly the 9th

and 10th

days of October,

2009, Defendant Andre Murray believes no service attempts were ever made by

Process Server Dave Daneliuk.

85. Note: regardless of the urgency which had been expressed by letter of

George LeBlanc Process Server Dave Daneliuk reportedly decided not to attend

the property October 8, 2009.

86. Why the separation between October 10 and October 13, 2009! Process

Server Dave Daneliuk himself is seen to write in his Affidavit that he did not

attend the property again allegedly after October 10, 2009 and not allegedlyagain until October 13, 2009 at which time he alleges attempting service of

subject Court Documents furthermore, alleges to have left documents taped to

front door of 29 Marshall Street, October 13, 2009.

87. Later he acknowledges that the door he left the documents at was beside

the enclosed glass sunroom porch of 29 Marshall Street which pictures

provided by Defendant Andre Murray confirm the location in question as 31

Marshall Street.

88. Before further exploring the special interests revealed by Process Server

Dave Daneliuk has expressed in Andre Murray


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89. Documents are indeed discovered by Defendant Andre Murray at 31

Marshall Street and not before 22nd of October, 2009. Why then did Process

Server Dave Daneliuk not leave the Documents on Saturday October 10, 2009?

90. Intended Appellant Andre Murray has contacted each Clerk of the Court

in each of the New Brunswick Queens Bench Jurisdictions. Each Clerk was

asked about the possibility of Queens Bench of New Brunswick Officially

Stamping and filing any Documents for Trial Division furthermore, would it be

possible to only receive these documents not sooner than three weeks later

..in each and every case the Clerks of the Court said not possible, they further

assured Defendant Andre Murray that the Documents are File Stamped and

returned same day in all cases. Question: George LeBlanc claims after filing

with Court of Queens Bench on Sept 18, 2009 to have not received the same

filed documents until October 6, 2009.

91. Why did Solicitor George H. LeBlanc not make sure to receive Sept 18,

2009 filed documents sooner? Where were the Court documents? Why was

Defendant Andre Murray not contacted by his phone number, which GeorgeLeBlanc has, and when or if in the event that he had attempted unsuccessfully

to contact Defendant Andre Murray or by email, then an adjournment would

have been appropriate.

92. Consequentially, Defendant Andre Murray was completely unaware and

missed the Hearing of October 20, 2009.

93. To begin with as is witnessed by R.B.C. associate collections person Julie

Ruggerio in a letter to Solicitor George LeBlanc, Julie Ruggerio recognizes that

Defendant Andr Murray has assured Solicitor George LeBlanc of the Andr

Murrays Residential Leasehold, which does exist; irregardless of these facts,


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Julie Ruggerio instructs an Officer (Solicitor George LeBlanc) of the Court to

proceed to break the law The Residential Tenancies Act, Acts of New

Brunswick, 1975, c.R-10.2, s.9) and cause an eviction of a Residential

Leasehold Tenant to occur from 29 Marshall Street, in the City of Fredericton,

which Solicitor George LeBlanc than instead of preparing a termination of lease

The Residential Tenancies Act, Acts of New Brunswick, 1975, c.R-10.2, s.9)

prepares a NOTICE OF ACTION and STATEMENT OF CLAIM erroneously

claiming that a Leasehold does not exist and pursues AD HOMENIUM

character assassination instead of providing substantive evidence; outrageous

allegations abound it is not insured, it is boarded up. as such is found

within the ex parte pre hearing brief signed October 16, 2009, George H.

LeBlanc, (Record on Motion, Book 1, page 560) who also appears to have

methodically arranged late service, and if not methodically, than negligently

creates the state or fact of being intellectually deceived or misled, therefore,

collaborates the environment for late Document service by the Process Server

Dave Daneliuk.

94. Communication between these Syndicated parties apparently became

confused as George LeBlanc is provides a Court Brief to this Honorable Court:

Date signed October 16, 2009 George H. LeBlanc (Please see: page 10,

paragraphs 45 Record on Motion, Book 1, page 560)returned to the Plaintiffs

council on or about October 5th, 2009 evidently the idea of October 5, 2009

was inadvertently perceived by Process Server Dave Daneliuk at Provincial

Security and Investigation Services Ltd. of Fredericton that his Affidavit of

Service should reflect failed attempts of Service upon Defendant Andre Murraybeginning October 5, 2009; this is exactly what occurred as Process Server

Dave Daneliuk first states by Affidavit, found in his first Affidavit stating that

service had begun on the morning of October 5, 2009 and continued through


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out the day including three visits, whoops he could not have reasonably had

the documents until October 7, 2009 because the Court Documents where sent

from Office of George LeBlanc 6th day of October and sent to Atlantic

Document Service Ltd. 106 Greywood Court, Riverview N.B. E1B 5N2 these

people at Atlantic Document Service Ltd. on the same day was forwarded to

Process Server Dave Daneliuk in Fredericton N.B. at Provincial Security and

Investigation Services Ltd. By Acadian Bus lines the shipment would have

arrived at scheduled time of 7:45 p.m. the employees at that location assure

Defendant Andre Murray that it is highly unlikely that the shipment would have

been picked up that day because they close and lock their doors at 8:00 p.m.

Note this would then make the claims of Process Server Dave Daneliuk that he

was attempting service October 7, 2009 in the early morning at 8:00 a.m.

simply not possible if Acadian Bus line does not open their doors for business

until 8:00 a.m.

95. So the following attempt to discredit Defendant Andre Murray fiasco,

which includes chimerical allusions creating mental pictures of squatters living

in a boarded up house, on Marshall Street in the City of Fredericton which,

definitely never been boarded up, furthermore, this Honorable Court was

deceived to believe that Andre Murray does not have Color of Right which

had to have been a purposeful deception because the Solicitor for the R.B.C.

knew otherwise.

96. In regard to That time for service of the within Notice of Motion be

abridged although the time for service of the Notice of Motion was abridged,

the time for service of the Amended Notice of Motion was not abridged.

Defendant Andr Murrays understanding and interpretation of the Rules of


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Court is that an Amended Notice of Motion must be served 10 days before the

hearing date, Review the Rules of Court Rule 37.04(5)

(5) Where service of a Notice of Motion or PreliminaryMotion is required, it shall be made at least 10 daysbefore the date of the hearing.

97. Defendant Andr Murray reaffirms the Serving of the Amended Notice of

Motion did not at any time occur. The Serving of the Notice of Motion arrived

damaged, critically illegible, with less than ten days (one calendar day before)

remaining before the hearing, which did not allow a fair opportunity for

Defendant Andr Murray to accordingly respond to the Notice of Motion,

furthermore, the circumstances of a Investment Instrument (Mortgagees Deed)

being sold by R.B.C, a corporation did not warrant in Defendant Andr

Murrays view an abridgement of time for service.

98. Let us examine paragraph 46 of the Plaintiffs submitted Pre- Hearing

Brief Court File Date Stamped October 16, 2009 by the Court of Queens Bench

Trial Division, Moncton, New Brunswick.

In the circumstances of this case, where the Defendant and/orunknown occupants have refused to accept service of the court

documents , where the Mortgagor, Mortgagee , and Purchaser have all

been unable to gain possession of the property, and where the property

is at risk; it is respectfully submitted that the Court should exercise its

discretion to abridge time for service of the Motion and/or any Order of

the court.

99. Furthermore the Plaintiffs Solicitor George LeBlanc stated in the Oct

16th, 2009, Court Brief, (Please refer to (Record on Motion, Book 1, from page

560, paragraph 46) the Defendant and/or unknown occupants have refused to

accept service of the court documents. This allegation could not be true,


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because of the fact that, George LeBlanc had been maintaining active

communication with Defendant Andr Murray and could have e-mailed,

phoned or mailed Defendant Andr Murray to communicate that Service was

being attempted.

100.George LeBlanc chose not to communicate his desire or need for service

of Notices of Action and or any Court Documents for that matter with

Defendant Andr Murray. George LeBlanc had and should still have Defendant

Andr Murrays phone number and e-mail address.

101.Because of the following, the allegations of Solicitor George LeBlanc

alleging evasion of Service are less than credible. This further strengthens the

claim of Defendant Andr Murray, which is that Defendant Andr Murray did

not know Service was being attempted.

102.Furthermore Plaintiffs Solicitor George LeBlanc claimed and stated in

the Oct 16,2009 Court Brief, the Defendant and/or unknown occupants have

refused to accept service of the court documents. The affidavit of Process

Servers Dave Daneliuk stated that his first three attempts of service occurred

Process Server Dave Daneliuk stated under oath that he did and had on

Monday Oct 5, 2009 attend the subject property Monday Oct 5, 2009 at

7:30 a.m

Process Server Dave Daneliuk further stated under oath that he did and had

on Monday Oct 5, 2009 attend the subject property October 5th, 2009

2:00 p.m. (drive by)

Process Server Dave Daneliuk continued to reaffirm under oath on the

same Affidavit that he did attend the subject property once again the same


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day and for the third time Monday, October 5th, 2009 9:00 p.m. for about

twenty minutes

103.If Dave Daneliuk is telling the truth then George LeBlanc would have had

to have sent the Documents for Service before Monday, October 5th, unless

there was a extremely early express service from Moncton to Fredericton which

no one in the industry is aware of, as Defendant Andr Murray has enquired

after this matter in all appropriate places.

104.As this Honorable Court may be aware Process Server Dave Daneliuk has

made a less than full disclosure/retraction of what has come to be exposed as a

erroneous Position that Process Server Dave Daneliuk was never at the 29

Marshall Street, Fredericton property Oct 5, 2009.

105.Process Server Dave Daneliuk is seen in his alternative affidavit to be

much less enthusiastic, and limits his retraction of the earlier extensive

verbalization down from the initial erroneous attempted service count of three

alleged avoidance of service incidents on that day Oct 5th, 2009 and reduced the

full acknowledgement of his deception, down to an obfuscation, designed and

or written in a manner so as to avoid disparaging the matter, thereby reducing

the three incidents of false affidavit testimony, affidavits are what we expect to

be treated as solemn declarations is reduced in gravity down to, as one may

observe by the tone of his latest Retractable Affidavit simple an insignificant

single day mishap incident event.(Please see: revised AFFIDAVIT of Process

Server Dave Daneliuk now calling himself David A. Daneliuk Dated: 12th day

of March, 2010, SWORN TO at City of Fredericton Paragraph 16,

ADDENDUM Record on Motion, from page 1333) Here is the retraction a less

than sincere disingenuous excerpt Quote:


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The reference to a drive-by and attendance on October 5th, 2009 in

exhibits A & B was in error. That was not an attempt at service at this

property, but rather an attempt at service in another unrelated matter,and the reference to that is incorrect.

106.Dave Daneliuk has now corrected this claim, in the Affidavit of Dave

Daneliuk, paragraph 46). Furthermore the professionalism and judgment of the

Process Server Dave Daneliuk must be questioned. Process Server Dave

Daneliuk displayed prejudicial dislike of the Defendant Andr Murray as

evidenced by slanderous and derogatory remarks in Dave Daneliuks affidavit

dated, 14th

day of October, 2009. The slanderous remark where made

apparently attempting to defame the character of Andr Murray followed by

outright deceptive statements which allege the Defendant Andr Murray is a

criminal and has views such as dislike of commerce. As an example in

paragraph 4 of the Affidavit sworn 14th

day of October , 2009 at the City of

Moncton, in the County of Westmorland and the Province of New Brunswick:

Dave Daneliuk states: Murray has extreme hatred towards government and

big business.

107.The Intended Appellant Andr Murray has observed something

interesting on the 19th day of October, 2009; the usual afternoon Canada Post

mail delivery, that day, contained a large envelope which could not fit into the

mailbox, more than that as a curiosity was that on the exterior of the envelope

received at this time (only one day before the DATE set for hearing of a

NOTICE OF MOTION contained there within)

of which can be examined as exhibit J; the Address area of the envelopeis of great concern:

Andr Muiiuj


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First of all Marshall is written so as to have illegible letters containedwithin it and reads as follows 29 Mai s l^ll

the word Street is absent from the expected location following the name

Mai s l^ll which could and would in all likely hood cause confusion forthe post office workers attempting to deliver this document seeing ashow Marshall could have been a Street, Lane, Avenue or road.

Absent is also the customary spelling of the City Fr


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announced to all concerned, where the court hearing was scheduled.

(Please see RECORD ON MOTION Book 1 Exhibit K page 351).

111.Plaintiffs Solicitor George LeBlancs claim stated in the Submitted

October 16,2009, Court Brief, of where the property is at risk is unfounded

seeing that George LeBlanc was aware that the Defendant Andr Murray had

been a tenant at the property for more than 4 years time. The claim that the

property is now, suddenly, at risk, there is no evidence to that false statement;

as such that statement is unfounded.

112.The Intended Appellant Andr Murray has and is currently maintaining

complete Insurance coverage of the 29 Marshall Street and 31 Marshall Street

Property, which covers any risk of loss to or interests the R.B.C and/ or the

501376 N.B. Ltd a body corporate, so there is no risk to the property.

113.Further regarding the requested Order

4. That service of the Notice of Action with Statement of Claim

Attached, Notice of Motion, Amended Notice of Motion, and anyOrder of the Court shall be sufficient by posting a copy of same

at the door of the premises located at 29 Marshall Street,

Fredericton, New Brunswick, and shall be effective on the date

of posting thereof;

114.In regard to the above item number 4, this Order without question

requires as prerequisite to being effective on the date of posting thereof: that

the Amended Notice of Motion must be posted at the door of the premises

known as 29 Marshall Street, Fredericton. The Amended Notice of Motion was

not ever served and could not have been as it did not exist on October 13, 2009,

the day Process Server Dave Daneliuk alleged Service of the Notice of Action


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with Statement of Claim Attached, Notice of Motion, and supporting affidavit

documents which incidentally were found by the Defendant Andr Murray on

the 22nd day of October, 2009, discovered hidden away, attached with masking

tape, at the base of the 31 Marshall Street Door not on or near any of 29

Marshall Street Door and definitely not within the visibility of anyone entering

or leaving 29 Marshall Street door.

115.In Telus Communications (Re: Motion for Substituted Service), 2006

BCSC 26 (CanLII) The Honourable Mr. Justice Burnyeat stated the following:

[6] InRogers Cable T.V. Ltd. v. International Brotherhood ofElectrical Workers, Local 213, [1993] B.C.J. (Q.L.) No. 2822 (B.C.S.C.), theplaintiff submitted that several union members had actual notice because theorder had been left at their residences. In this regard, Warren J. concluded thatan order for substituted service would be available although it had not beenordered in that case:

The plaintiff maintained that another three, Hawkins, Monkman andLow were served, however, after reading the affidavit of service I wasnot satisfied that those individuals had been personally served with allof the material as required by the rule. I am satisfied that the materialwas delivered to their respective residences but in the absence of anorder permitting substituted service, that is not adequate. There must bea strict compliance with the rules where there is an application to find aperson in contempt. (Clagget v. Clagget [1945] 2 W.W.R. 191).(at para.7)

116.There must be a strict compliance with the rules where there is an

application to find a person in contempt or in this case avoiding service, the

service of documents where not in accordance with the Rules of Court, nor to

the specifications of the substituted service


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117.The service of documents to 31 Marshall Street, the address next door to

the address specified in the Order, cannot be considered compliance with the

Orders of the Court. Furthermore, that door and entrance into 31 Marshall

Street had not been used in four years as the West end of the Duplex was being

used to enter and or exit 31 Marshall Street.

118.In Boardwalk Reit Limited Partnership v. Busler, 2006 ABQB 695

(CanLII) Honourable Madam Justice L. Darlene Acton stated the following

regarding Substitutional service:

[12] The learned Master referred to Mr. Justice Cts decision inHansraj v. Ao, 2004 ABCA 223 (CanLII), [2005] 4 W.W.R. 669, 2004ABCA 223 to support the proposition that proper service is importantand that serious problems can arise in the absence of proper service. IntheHansraj decision, Ct J.A. was commenting on substitutionalservice orders; however, the principle remains the same. At para. 77,Mr. Justice Ct stated:

Rule 23 is not a formality. Substitutional service is not away of dispensing with service, nor a legal fiction.Substitutional service does not dispense with service; itreplaces personal service with some other method likelyto come to the personal attention of the defendant in

question. [Emphasis added.]

[13] The important aspect of personal service is that it gives theCourt comfort that the document in question has come to the personalattention of the defendant or respondent in the matter.

[14] In conclusion, I affirm the decision of Master Waller anddirect that, if service cannot be effected by personal service on thetenant, an order for substitutional service must be obtained prior toproceeding to apply to terminate the tenancy.

119.If service allegedly could not be effected by personal service, as on the

Defendant Andr Murray in this matter, an order for substitutional service must


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be obtained prior to proceeding to act, on the that very Substituted Service,

requested of, and approved by the Honorable Court.

120.Furthermore in regard to the above order item number 4, this Order

suggests that the Amended Notice of Motion was served on the 29 Marshall

Street property, which to the Defendants knowledge and experience the

Amended Notice of Motion was never served at any time or ever for that matter

according to the rules of court.

121.May this please the Court Defendant Andr Murray has searched the

Court Files in Queens Bench Moncton Client Services and could not find an

Affidavit of Service for the Amended Notice of Motion Dated October 14.

Defendant Andr Murray did discover while searching the Court of Queens

Bench Moncton Client Services the actual Court Stamp Filed - Amended

Notice of Motion bearing the October Stamp Filed Date of 15, 2009.Further to

this matter of the service of Amended Notice of Motion bearing the Court

Stamp Filed Date of October 15, 2009; that time for service of the within

Notice of Motion has requested abridged although the time for service of theNotice of Motion was abridged, the time for service of the Amended Notice of

Motion has never been requested as abridged; Defendant Andr Murrays

understanding and interpretation of the Rules of Court is that an Amended

Notice of Motion must be served 10 days before the hearing date; the Amended

Notice of Motion to date has not according to the Rules of Court been served

on Defendant Andr Murray as required.

Maxim - Fraus omnia vitiatFraud vitiates everything.


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122.The Solicitor for the Plaintiff R.B.C deceived Justice Zol R. Dionne on

Oct 20th, 2009 multiple times about the Service of an Amended Notice of

Motion, claiming that it had been served when in fact it never had.

123.At the hearing of the Motion on Oct 20 th, 2009 Solicitor George H.

LeBlanc asked Justice Zol R. Dionne (Please refer to Transcript of hearing of

Oct 20th, 2009, Record on Motion Book 2, Page 684, - transcript Page 7,

line1):My Lord, just for the record, may I ask the court to confirm that the

service of service of the Notice of Action and Statement of Claim, the

Amended Notice of Motion and the Motion is confirmed as of September 13th

?

In other words, this part has already been fulfilled.

124.At the hearing of the Motion on Oct 20th

, 2009 Justice Zol R. Dionne

asked Solicitor George H. LeBlanc (Please refer to Transcript of hearing of Oct

20th

, 2009, Record on Motion Book 2, Page 684, - transcript Page 7, line 24):

Okay, And so this Court declares as valid and sufficient the service of the

Notice of Action with Statement of Claim Attached and that was already made

to the defendant, Andr Murray, on thats October 13th

?

125.Solicitor George H. LeBlanc replied to Justice Zol R. Dionne (Please

refer to Transcript of hearing of Oct 20th, 2009, Record on Motion Book 2, Page

684, - transcript Page 8, line 2) September 13th. No, youre quite right, my

Lord, October 13th

. And that would apply, my Lord, to the amended Notice of

Motion and Notice of Motion?

126.Also At the hearing of the Motion on October 20, 2009, Justice Zol R.

Dionne asked Solicitor George H. LeBlanc;

(Please refer to Transcript of hearing of October 20, 2009, Record on Motion


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Book 2, Page 684, - transcript Page 8, line5) : All these were served at

October on October 13th

?

127.Solicitor George H. LeBlanc replied to Justice Zol R. Dionne;


Book 2, Page 684, - transcript Page 8, line 7) :Thats right!

128.Also, occurring at the hearing of the Motion on October 20, 2009, Justice

Zol R. Dionne asked Solicitor George H. LeBlanc;


Book 2, Page 684, - transcript Page 8, line 8) : By leaving a copy stuck to the

door.

129.Solicitor George H. LeBlanc replied to Justice Zol R. Dionne;


Book 2, Page 684, - transcript Page 8, line 9) :Thats correct!

130.The evidence is clear, by way of dates on the Amended Notice of Motion

which was signed by Solicitor George H. LeBlanc and dated as October 14,

2009 and the Court File Stamp Date of October 15, 2009, from the Court of

Queens Bench Trial Division Moncton that service of the Amended Notice of

Motion Document could not have possibly occurred on the 13th

day of October

2009, as the Amended Notice of Motion Document had not yet been crafted by

Solicitor George H. LeBlanc until October 14, 2009. (Please see Record on

Motion Book 2, Page 688).

131.(Record on Motion Book 2, Page 842,). Date Court File Stamped October

20, 2009, item number 5, first this Order suggests that the Amended Notice of

Motion was served on the 29 Marshall Street property. This is an outright lie,


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gross negligence and in the very least, misleading, because the Amended Notice

of Motion could not have been served at the time as declared. The Amended

Notice of Motion was dated Oct 14, 2009, by Solicitor George H. LeBlanc and

filed with the Court of Queens Bench Trial division Moncton, which was Court

File Date Stamped on the 15th

day of October, 2009, two days later than the

alleged service of the 13th

day of October, 2009. The Amended Notice of

Motion could not have been included in the package of documents allegedly

served by the Process Server by the posting of a copy of same, at the door

located at the premises of 29 Marshall Street, Fredericton, N.B. being alleged as

October 13, 2009.

132.In Kusick v. Kusick, 2007 ABQB 441 (CanLII) Honourable Madam

Justice M.B. Bielby stated the following regarding proof which must be

provided, that the Respondent has been personally served with or otherwise

obtained actual knowledge of the existence of and requirements of an order

before one can be found in contempt of that Order and many of the principles

apply to the case before this Honorable Court:

[11] Before a finding of contempt may be made by this Court,proof must be provided that the Respondent has been personally servedwith or otherwise obtained actual knowledge of the existence of andrequirements of that order as described inBhatnager v. Canada(Minister of Employment & Immigration)1990 CanLII 120 (S.C.C.),[1990] 2 S.C.R. 217 at paragraph 16 by Justice Sopinka:

On the cases, there can be no doubt that the common lawhas always required personal service or actual personalknowledge of a court order as a precondition to liability

in contempt. Almost two centuries ago, in Kimpton v.Eve (1813) 2 V & B. 349...Lord Chancellor Eldon heldthat a party could not be held liable in contempt in theface of uncontradicted evidence that he or she had noknowledge of the order. InEx parte Langely (1879), 13


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Ch. D. 110 (C.A.), Thesiger L.J. stated the principle asfollows, at p. 119:

...the question in each case, and depending upon theparticular circumstances of the case, must be, was thereor was there not such a notice given to the person who ischarged with contempt of Court that you can infer fromthe facts that he had notice in fact of the order which hadbeen made? And, in a matter of this kind, bearing inmind that the liberty of the subject is to be affected, Ithink that those who assert that there was such a noticeought to prove it beyond a reasonable doubt.

[22] Justice Jenkins declared that the legislation violated s. 7 ofthe Charter in failing to provide notice and an opportunity to be heard.He stated at paragraph 40:

The fundamental right to notice, and the logic involved with theprinciple that a person is only bound by an order upon receivingnotice thereof, is enshrined in our law. For orders made underthe Act, it is expressly stated in s. 5(1). Skipping proper notice ofthe result and order on the second step, the judges review of therecord, cannot be justified either on the basis of administrativeconvenience or by any need at this review state of theproceedings to override the principles of natural justice. Theentitlement of notice is not dependent on the language of theAct, but is based on a fundamental principle of justice within therule of law. Given the interests of the state being pursued by thes.4(2) provisions, and the magnitude and seriousness of theireffect on the interests of the individual which are affected, itshould be inherent to evenhanded administration of the Act thatthose public officers charged with its administration, measureswould always be taken to ensure fairness to the respondent.Fairness obviously includes express and clear notice of a judicialorder, and clear information regarding the opportunities forreview, variation and revocation of the order. This is especiallyso for a notice regarding a [confirmation] order, where it ispredictable that a respondent could be dislocated, angry ordistraught, and without legal counsel.


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[23] While Albertas Act does not contain the provisions whichwere declared unconstitutional in the result of Justice Jenkins decision,

his observations in relation to the need for express and clear notice of ajudicial order could be said to apply to confirmation orders in thecontext of our Act as well. Other jurisprudence highlights the need forCharter compliance in this type of domestic violence legislation albeitalso in relation to provisions which do not appear in Albertaslegislation which seems to be unique in its requirement for subsequentconfirmation in an open court hearing on notice to the Respondent. Fora recent example, seeBaril v. Obelnicki [2007] M.J. No. 110.

133.The entitlement of notice is based on a fundamental principle of justice

within the rule of law. There is fundamental right to notice of an upcoming

hearing involving the adjudication of the rights of an individual. The logic

involved with the principle that a person is only bound by an order, after being

given the opportunity to speak to the matter in his defense and upon receiving

notice thereof, is enshrined in our law.

134.Next Process Server Dave Daneliuk a.k.a. David A. Daneliuk provides his

Affidavit Dated: October 14, 2009, which did not address a Amended Notice of

Motion neither does the subject Affidavit declared as served a Amended Notice

of Motion or provide a copy of same attached to the Affidavit of Dave

Daneliuk.

135.Solicitor George Leblanc first claimed in George Leblancs Affidavit of

January 13, 2010, (Record on Motion Book 2, 683) paragraph 19, line 3, that:

19) The reference to the Amended Notice of Motion inthe Order was unnecessary and in error.


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136.Solicitor George H. Leblanc now admits misleading the Honorable Court

on October 20, 2009, and causing the Court to erroneously believe that the

Amended Notice of Motion was Served on October 13, 2009, which it was not.

137.Solicitor George H. Leblancs Affidavit of March 16, 2010, Record on

Motion Bok 2, page 684, Paragraph 20 -21, George LeBlanc states:

20) Having reviewed the transcript of the Hearing, I wasam very surprised that I indicated that it had been served on that

date. That statement was patently and obviously in error.

138.Let us review the Rules of Court regarding Validation of service:

New Brunswick - Rules of Court18.09 Validating Service

Where a document has been served by some methodnot authorized by an Act, these rules or an order of thecourt, or where there has been some irregularity in service,the court may order that the service be validated onsuch terms as may be just, if the court is satisfied that(a) the document came to the notice of the person

sought to be served, or(b) the document was left so that it would have cometo the notice of the person sought to be served, exceptfor his own attempts to evade service.

139.Intended Appellant Andr Murray, verily believes, that the Learned Trial

Judge should have Rescinded the Validation of Service Orders as found

requested within and further granted within the Order issued from the hearing

of a Motion before the Honorable Court on October 20, 2009, and at QueensBench Moncton Trial Division because:


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1) The Amended Notice of Motion was not served on October 13th,2009 as the Order falsely states.

2) The allegedly served documents where placed at 31 Marshall Street,an address door not specified in the Order of the Court, which clearlystated and required service at 29 Marshall Street.(Please see; Defendants Record on Motion Tab 87)

3) Defendant Andr Murray is claiming that the subject documentsclaimed as served on October 13, 2009, did not come to the notice ofDefendant Andr Murray until October 22, 2009, two days after theOctober 20th, 2009 hearing had occurred; if the document had indeedbeen left so and on the alleged date of October 13, 2009, than it could

not come to the notice of the person sought to be served except bychance as the door at which said documents where discovered onOctober 22, 2009 is 31 Marshall Street, The appropriate, most visibledoor to have left the documents

Intended Appellant's Submission Book 2. Leave to Appeal to the COURT OF APPEAL OF NEW BRUNSWICK

Documents

Transcript of Intended Appellant's Submission Book 2. Leave to Appeal to the COURT OF APPEAL OF NEW BRUNSWICK