September 20, 2010 Appellant's Submission to The Court of Appeal of N.B. File Number 82/10/CA ANDRE...

7/30/2019 September 20, 2010 Appellant's Submission to The Court of Appeal of N.B. File Number 82/10/CA ANDRE MURRAY

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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

APPELLANT (Plaintiff )

-and-

BETTY ROSE DANIELSKI

RESPONDENT (Defendant)

Appellants Submission

Filed by self represented

APPELLANT

ANDRE MURRAY

Andr Murray

APPELLANT

(Plaintiff)

31 Marshall Street,

Fredericton,

New Brunswick,

E3A 4J8

Telephone Number:(506) 472 - 0205

E-mail address:

andremurraynow@

gmail.com

Solicitor for


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: [email protected]

Betty Rose Danielski


Apt 603

166 Carlton Street

Toronto, Ont.

M5A 2K5


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(Rule 62.14)

INDEXof the contents

Page

a) Part I - An index of the contents; _______________________________b) Part II -A concise statement of all relevant facts with such

references to the evidence as may be necessary;___________________

c) Part III - A concise statement setting out clearly and particularly inwhat respect the order or decision appealed from is alleged to be

wrong;_____________________________________________________

d) Part IV - A concise statement of the argument, law, and authoritiesrelied upon;_________________________________________________

1) Rule 1.03 Interpretation_____________________________________

2) Rule 39.01Evidence on Motions________________________

3) Rule 39.04 Service of Affidavits_____________________________

4) Rule 2.03 Attacking the Regularity of Proceedings_______________

5) Maxim -Audi Alteram Partem -Latin; literally'hear the other side'.______________________________________

6) 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.____________________

7) Regarding Order Sought________________________________

e) Part V - A concise statement of the order sought from the Court ofAppeal, including any special disposition with regard to costs;_________

f) Schedule A - A list of authorities in the order referred to in theSubmission; and_____________________________________________

g) Schedule B - The text of all relevant provisions of Statutes orRegulations (or copies of the complete Statute or Regulation may be

filed and served with the Submission).____________________________

i

1

1

8

8

19

25

25

26

29

34

35

36

40


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PART II STATEMENT OF FACTS

1. Andr Murray Plaintiff April 20, 2010 filed a Motion Amended May 31, 2010, withCourt of Queens Bench Fredericton Trial Division heard June 10, 2010, for orders:

a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, this action becontinued 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 ofCourt,

c) That the Defendant pay costs of the within Motion,d) Such further and other relief as to this Honorable Court may appear just.

2. The Motion, aforementioned herein above, heard before the Honorable Madam JusticePaulette Garnett would not allow the following listed Order, onto the Court Record:

a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, thisaction be continued until October 21, 2010 or further Order of this Court,

3. It is discretionary upon the Honorable Court as to the granting of such Orders pursuant tosection 52.1 (1) (b) of the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6,

4. The Motion scheduled for a day before the Honorable Madam Justice June 10, 2009,actual duration of first Court session was 9 minutes, went to recess, returning same day for

second Court session of 11 minutes as the learned Trial Judge interrupted Plaintiff AndrMurray in his only opportunity to speak, as Honorable Madam Justice verbalized The end!

5. The Plaintiff expecting a crafted Order, including a comprehensive decision fromHonorable Madam Justice Paulette Garnett instead Plaintiff received RECORD ON MOTION

cover page, bearing a perimeter drawn diagonally across centre of page with hand written

words inside stating nothing more than Motion dismissed No cost. PCG June 10/10.

6. The learned Trial Judge, as above, has never provided a Decision or reasoningattributed to the words Motion dismissed. No Reason a Decision has never been provided.

Part III

7. The learned trial Judge erred in law in not keeping with the general direction as foundexpressed in the New Brunswick Rules of Court Rule 1.03 (2) , rather than allowing onto

the Court record any of the voluminous evidentiary affidavit material filed with the Honorable

Court and or without allowing argument from the parties to the Motion the Court Adjourned


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for 15 minutes (became one hour) Solicitor for Defendant, as directed by the Court left the

Hearing to search by telephone for answers to Madame Justices leading questions. Please

note; prior to recess only 9 minutes into the Hearing of the Motion, (originally scheduled

for a day) Madam Justice dominated, the initial 9 minute hearing as all submissions on

record were those of Madam Justice except for replies to her questions. Arguments from

Plaintiffs or Defendants were not being allowed.

8. The learned trial Judge erred in law in the impugned Order, the aforesaid contention, thatany Party to an Action could reasonably be instructed by the Court to take leave, to then, as

directed by the Honorable Court, contact by telephone: two parties known adversarial to the

final outcome. Moreover, the incredulous and or implausibility, that, upon returning from the

assigned subject antecedent telephone mission, the resultant answers could not possibly be

unbiased, independently meritorious and or admissible substantive material before the Court,

appeared to be an easily perceived and obvious error in law.

9. The learned trial Judge erred in law in, Ordering a 15 minute adjournment of a Hearing(Which is a serious error in the proceeding.) that irrelevant hearsay may be collected, then

placed onto Court Record not SWORN TO by Affidavit. Hearsay treated as substantive

evidence is an irregularity of a magnitude great enough to be considered an Error in Law

further, is objectionable to such a degree as to be self evident that the environment was being

set for an unfair Hearing.

10. The learned trial Judge committed an error in law in not keeping with the generaldirection expressed in the New Brunswick Rules of Court Rule 1.03(2) in creating prejudice

to the Plaintiff by raising issues not argued by either party and conversely the learned trial

Judge avoided consideration of all pleadings, meritorious and or substantive material

previously filed with Court of Queens Bench; as was filed by parties to the Motion for orders

including the Plaintiffs: 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 committed an error in law in not keeping with the generaldirection expressed in the New Brunswick Rules of court Rule 1.03(2) in Hearing of the

matter Honorable Madame Justice assured all parties to the action (please see providedtranscript: Page 2 Line 16 excerpt: THE COURT: Let the record show that I have read all

of the documents that have been filed..) initially the Honorable Court tacitly assures the

Appellant (Plaintiff) Let the record show that I have read all of the documents that have

been filed.. although contrary to what one might expect, would therefore occurduring the

hearing the Plaintiffs AMENDED NOTICE OF MOTION (FORM 37A) Filed with COURT


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OF QUEENS BENCH, FREDERICTON TRIAL DIVISION, as received and Court File Date

Stamped / MAY 31 2010, clearly listed as first and foremost - the order sought as was listed

and is provided for consideration below is completely ignored, not addressed, instead it is

bypassed by the Learned Judge in apparent preference of Order b) as requested;

.a) That, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, the mechanics LienAction be continued until October 21, 2010 or further Order of this Court.

The learned Trial Judge instead appeared and did entirely neglect to address theaforementioned 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 of APPEAL;

Appellant Andre Murray following the Motion Hearing on the 10th day of June, 2010,

purchased a CD disk, a recording from the Court of Queens Bench Official CourtReporter.

Appellant, after listening to the aforementioned CD disk Court Hearing recorded

transcript, furthermore, after a dozen listening reviews of the above mentioned CD disk

Recorded Transcript, it is realized that the Plaintiff 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 and is heard to be addressing only the second

Order as listed and found, within the Motion, moreover, the learned Judge is entirely

avoiding theprimary, first listed Order found within the subject Motion 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

Note: Plaintiff in that matter is able near the end of the Hearing to utter words of

objection, to the effect that the Plaintiff requires his requested Order as found listed,

pursuant to section 52.1 (1) (b) of the Mechanics Lien Act addressing a Continuance of

the Action. Unfortunately, Honorable Madame Justice refused to reply to these pointed

assertions of the Plaintiff, instead Madame Justice insisted on addressing only the matter

of Extension of time pursuant to Rule 3.02.

12.

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 bythese rules or by order.,

The learned trial Judge made the pivotal decision in hearing of the said Motion 10th day of

June, 2010, of whether to allow a Extension of time pursuant to Rule 3.02 of the Rules of


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Court, learned trial Judge erred in law by arriving at the decision relying on inadmissible

hearsay information.

13. The learned trial Judge erred in law, please see as within provided, further, as was listedin the Motion to be heard in Fredericton Trial Division June 10, 2010, are found requested

Orders of the Honorable Court which, are accordingly sought first and primary, found listed

as a), b), c), and d) as provided; incidentally Order item a), as listed was continually ignored

by Madame Justice;

a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, the mechanics LienAction be continued until October 21, 2010 or further Order of this Court .

14. The learned trial Judge erred in law when hearing the Motion in Fredericton TrialDivision June 10, 2010 neglected to Order an adequate adjournment 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 whointends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) onthe person giving the notice, and (b) on each person served with the notice, at least 4days prior to the date set for the hearing.

15. The learned Trial Judge erred in law, in irregularly applying the Courts Discretion to notGrant a Continuance according to section 52.1 (1) (b) of the Mechanics Lien Act.

(Plaintiff in that matter) APPELLANT Andre Murray offers the Honorable COURT OF

APPEAL consideration of according to Rules of Court, Rule 2.03 Attacking the Regularity of

Proceedings: APPELLANT Andre Murray believes that the learned Trial Judge with

prejudice, improperly exercised, the Courts Discretion in arriving at a final decision.

16. The learned trial Judge erred in law in not recognizing the principal of law expressed inthe Maxim Audi Alteram Partem (Latin; literally 'hear the other side').

Appellant interprets the above listed maxim to mean: that in the Honorable Courts of New

Brunswick no person shall be condemned punished or have any property or legal right

compromised by the Court of Law without having first heard that person.

The learned trial Judge in the matter to be considered before this Honorable Court of Appeal,

would not allow the Appellant to be heard and nor was the Appellant permitted to address theCourt, therefore potentially counter/reply/object, as, to why the Honorable Court should not

make decisions based on the new information as obtained by hearsay. Opportunity to argue,

as to why the foregoing and reasoning was flawed, was denied to the Appellant. The merit of

facts found within documents previously filed as Affidavit and found within the file intended


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to be reviewed and considered by the Honorable Motion Trail Judge was also denied during

the very case before the Honorable Court.

17. The learned trial Judge erred in law in not recognizing the principal of law expressed inthe Maxim Audi Alteram Partem, ('hear the other side'), in not considering documents filed by

the Appellant to address the fact that the tentative purchaser, 501376 N.B. Ltd, a body

corporate at the Power of Sale Mortgagee Deed Auction Sale, had caused a contract to be

signed, BIDDING PAPERS AND 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 Appellant was not permitted

to speak to these matters..

18. Furthermore, the learned trial Judge erred in law, again, not recognizing the principal oflaw expressed as Audi Alteram Partem, by not allowing the Plaintiff to draw the learned trial

Judges attention to the fact that the source of the pivotal information which the MadameJustice had essentially custom designed (by instruction) then shortly thereafter accepted as

substantive evidentiary material and finally was relied upon, to render a final decision, the

hearsay not Sworn to under Oath, and was hearsay information allegedly sourced from two

Solicitors both with potential and blatantly evident conflicts of interest: (Please see transcript:

a Motion heard before Honorable Madame Justice Paulette Garnet on the 10th day of June,

2010 as prepared by Peggy Blackwell a certified Court reporter; please read transcript: page 8

beginning line 16 continue through to page 9 ending at including line 15).

Allegedly Mr. Christie spoke with (ambiguously identified)council for the RoyalBank (transcript: page 9 line 4) of Canada vendor of the Investment Instrument

Mortgagee Deed registered against subject property. (even further ambiguous:

please see transcript: page 9 line10) who have advised me. This same interest was

sold at Auction to Solicitor Hugh Cameron acting as Agent for Purchaser: 501376

N.B. Ltd, a body corporate. transcript: page 9 line 5 through to line 10)

Allegedly Mr. Christie spoke with Solicitor Hugh J. Cameron acting as Agent forPurchaser, 501376 N.B. Ltd, a body corporate, who signed a BIDDING PAPERS

AND 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 by this Honorable Court of

Appeal in full and below:


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

19. The learned trial Judge erred in law in not recognizing the principal of law expressed inthe Maxim Audi Alteram Partem, consequentially, did not address the requested order of

Appellant Andr Murray (Plaintiff in that matter) as found within the Motion as follows:

The Plaintiff Andr Murray will apply to the Court of Queens Bench of New Brunswick,Fredericton Trial Division at Justice Building, 427 Queen Street, P.O. Box 6000 Fredericton,New Brunswick E3B 1B7, 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, themechanics Lien Action becontinued until October 21, 2010 orfurther Order of this Court;

Furthermore, instead learned trial Judge erred in law focusing primarily on the Order which

followed a) as found listed b):

b) That the Court grant a Extension oftime pursuant to Rule 3.02 of theRules of Court.

20. The learned Trial Judge erred in law in not recognizing the principal of law expressed inthe maxim nemo judex in causa sua debet esse which underlies the doctrine of "reasonable

apprehension of bias". The Appellant contends that a question of reasonable apprehension ofbias occurred when the learned Trial Judge announced requisite information, that will cause

the Honorable Court to arrive at a predictable decision, then the Honorable Court charged

Solicitor Thomas Christie with a task to collect that vary same information, during a 15

minute recess (became one hour) then upon the return of Solicitor Christie hearsay was

accepted without validation according to Rules of Court requiring Affidavit evidence

consequently reducing the reliability of same.

21. The learned Trial Judge erred in law in not recognizing the principal of law expressed inthe maxim nemo judex in causa sua debet esse, vide supra , the learned trial Judge relied uponhearsay, which brings to question a reasonable apprehension of bias, was not sworn to under

oath, possibly said in error and was definitely hearsay sourced from the same Hugh J.

Cameron who is acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who

signed a BIDDING PAPERS AND 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:


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10. All real property taxes, water rates. liens, charges and/or local

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

22. The trial Judge erred in law in initially requesting hearsay evidence from SolicitorThomas Christie for the Respondent than finally accepting hearsay as evidence, before the

Honorable Court regarding the sale price without the use of Filed Affidavit Proof of Claim.

The circumstances surrounding the entry into and on record of the hearsay evidence could

not have the guarantee of trustworthiness necessary to allow their admission as evidence.

NOTE: As this very same hearsay information was being accepted as evidence there was

much confusion as to the actual numbers and details requiring a corrections and repetitions of

the Entry on Record.

23. The trial Judge erred in law in admitting as evidence, hearsay statements by SolicitorThomas 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 affecting 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.

24. The learned trial Judge erred in law in arriving at a decision, which was not based onargument, 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 question

regarding the actual matter of the Notice of Motion which is a required Continuance of the

Action that the matters between the parties may find remedy.

25. The learned trial Judge erred in law in demonstrating prejudice, deciding that the Motionand orders requested and found listed, within same, would not be entirely considered, as,Madame Justice only permitted/allowed for review of certain predetermined criteria, which

was being advanced by the learned Trial Judge, moreover, addressing only one of the

requested orders and proceedings not based on or permitting argument offered by either party

to the action. Nor was the above, aforementioned, here within requested orders Judged on the

merits of all documents submitted and filed with Court of Queens Bench, which were

intended to be used as argument by the Plaintiff, in that Motion and the said denial of


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Plaintiffs request to plead to the matters, by the learned Trial Judge was consequentially, to

the prejudice of the Plaintiff (in that matter); Appellant (in this matter).

26. The trial Judge erred in law in not Ordering an adjournment of sufficient time, that theanswers to prescribed questions, as was requested by Madame Justice, would or could be

properly obtained, subsequently, Filed with the Honorable Court by affidavit then properly

served on the affected parties according to Rules of Court, Rule 39.04 Service of Affidavits

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

27. The trial Judge erred in law in first of all not considering the Order requesting theGranting of a Continuance based on the merits of submitted Affidavit evidence revealing the

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 Appellant of a opportunity to plead on therecord to the facts of the case on its merits.

Part IV

ARGUMENT

A concise statement of the argument, law, and authorities relied upon;

1) Rule 1.03 Interpretation

28. Black's Law Dictionary (8th ed. 2004), defines Justice as follows:JUSTICE - justice. 1. The fair and proper administration of laws.

29. The fair and proper administration of Justice in New Brunswick requires of the Court ofQueens Bench Trial Division to apply the Rules of Court, for a determination of every

proceeding on its merits. Dismissing, in this matter, a Motion for Orders granting a

Continuance pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, R.S.N.B. 1973, c.

M-6, is an undeniable prejudice to any Plaintiff, however, this power to dismiss a Motion

must be exercised, with great reserve, and deliberation, moreover, only after the Honorable

Court having first heard in its entirety, pleadings, and arguments, relevant to the matter of the

Motion for a Continuance as before the Court.

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

CITATION, APPLICATIONAND INTERPRETATION1.02 Application

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


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30. A determination should be in keeping with the general direction contained in Rule1.03(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 INTERPRETATION1.03 Interpretation

1.03(2) These rules shall be liberally construed to secure the just, least expensiveand most expeditious determination of every proceeding on its merits.

31. The learned trial Judge, committed an error in law, in not keeping with the generaldirection 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 consequential prejudice suffered by the Plaintiff, further, in not

rendering a Judgment based on the the substantive considerations to be taken into account indeciding a case, as opposed to the extraneous and or technical points which the learned Trial

Judge instead pursued. Evidentiary affidavit material as was filed within the Court of Queens

Bench, further, as was filed was not permitted to be argued before the Court. The learned trial

Judge, prejudiced the hearing by raising her own 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

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.

32. It is my understanding that Judgment on the merits is a judgment made afterconsideration of the substantive, as distinguished from procedural issues in a case. Further to

this point please find the following definition of Merits.

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

MERITSmerits. 1. The elements or grounds of a claim or defense; the substantive

considerations to betaken into account in deciding a case, as opposed to extraneous or technical points,esp. ofprocedure .2.EQUITY(3) .

33. The rules of Court 1.03(2) states These rules shall be liberally construed, please findthe following definition of Construed.


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

CONSTRUE - construe (kn-stroo), vb. To analyze and explain themeaning of (a sentence or passage) .

please find the following definition of Just at Black's Law Dictionary (8th ed. 2004)defines Just as follows:

JUST - just,adj. Legally right; lawful; equitable

34. When viewed in this language the Rule 1.03(2) reads: These rules shall be liberallyconstrued(analyzed and the meaning of explained ) to secure thejust (Legally right; lawful;

equitable), 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

3 a plural : the substance of a legal case apart from matters of jurisdiction, procedure,or form b : individual significance or justification

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

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

36. The learned trial Judge erred in law in not keeping with the general direction as foundexpressed 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 ratherthan reviewing and or examining evidentiary affidavit evidence material and or

considering argument from the 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 Madame Justice that the Solicitor for the

Defendant shall leave the Court room to search by telephone, for the answers to the


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Madame Justices leading subjective questions. Note; up and until this point in the

Hearing, Honorable Madam Justice continued to dominate the Hearing as all submissions

on record were those of Madam Justice. Arguments and or counter claims from Plaintiff

or Defendant was not being allowed.

The Appellant 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 Plaintiff (in that matter) furthermore, that upon return of the Honorable Court from

the hearsay seeking adjournment the incredulous and or implausible possibility of the

resultant telephone enquiries being unbiased and or independent meritorious answers

worthy of evidence.

The Plaintiff (Appellant in this matter) stood before the Honorable Court following the

adjournment, listened as the Honorable Madam Justice subsequently, accepted the

hearsay submissions of the returning Solicitor for the Defendant.

The Appellant trusts that this irregularity complained of before the Court of Appeal asmentioned and found here within, is objectionable to such a degree, as to be self evident,

that the environment was being set for an unfair and unjust Hearing.

As aforementioned, 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.

37. The learned trial Judge has erred in law by focusing on only two aspects expeditious andleast expensive of the directive Rule 1.03(2). Regrettably the learned Trial Judge erred in law

in not comprehending and implementing the totality of Rule 1.03(2). The Honorable Courtsmust not as it appears Madam Justice Garnett is prepared to sacrifice to secure the just,-

most expeditious determination of every proceeding on its merits, in preference of (least

expensive) to the prejudice of Justice and in this matter the Appellant. Below is excerpt.

Reference: Transcript Page 13. Line 11, 12, 13, and 14;

THE COURT: in effect, I am not giving you an extension on this matter.It is a waste of the Courts time.It is a waste of Money.It is a waste of everything.

The Appellant believes there is a need to preserve the sanctity of the adversarial process

where the onus to move the action along must not take priority over securing a just and

meritorious determination. There is a need to protect against compliance with the rules taking

precedence over resolving the dispute. Honorable Madam Justice Garnett negated the need to

secure a fair, just and balanced determination, based on the MERITS.


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38. A Continuance of the Action was requested of the Honorable Court by NOTICE ofMOTION and ought to have heard based on the merits or lack thereof and consequently a

decision rendered, governed accordingly.

39. The Appellant a self-represented litiganthas persevered, through great hardships, toadhere to the Rules of Court and according to the Mechanics Lien Act requirements, thereby,

bringing forward this Mechanics Lien Action to secure and protect his equity investment in

the Marshall Street Property. The Appellant has met all the required filing timelines and justly

seeks a fair opportunity to present documented evidence to the Court for consideration, that

the matter may be finally decided, based on merit.

40. The AMENDED NOTICE OF MOTION (FORM 37A) Filed with COURT OF QUEENSBENCH FREDERICTON TRIAL DIVISION, Court file Date Stamped: MAY 31 2010,

requested orders to grant a Continuance of the Mechanics Lien Action. Honorable MadamJustice Paulette Garnet presiding on the MOTION 10th day of June, 2010, subsequently,

transcribed by Blackwell Court Reporting, illustrates, the Honorable Madam Justice Paulette

Garnets prejudice, (Please see page 11 of transcript line16 Therefore, it is a complete waste

of time to continue this claim for lien. assertion suggests that the actual complete

circumstance of the matter before the court, were of no consequence in the Courts decision,

beginning at

Reference: Transcript Page 11. Line 12: continues until Page 13. Line 24;

41. Furthermore The Court should have been aware of the unusual circumstancessurrounding the subject Mechanics Lien Action (contractual documents necessary for

Discovery according to Mechanics Lien Act. are being withheld). As found evidenced

within 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,

Reference: Transcript Page 2, line 16 continues until Page 2. Line 17;

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

42. Some of the circumstances, surrounding the unusual delay in moving forward- theMechanics Lien Action, where expressed on the following excerpt as provided below is a

letter to E. Thomas Christie, Solicitor for Betty Rose Danielski Dated: May 31, 2010, which is

included within Appeal Book subsection (h) a copy of any affidavit evidence; as submitted

to the Court of Queens Bench Trial Division, Judicial District of Fredericton as follows:

Reference: Appeal book: Subsection (h)


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Dear E. Thomas Christie,

Regarding Andre Murray v. Betty Rose Danielski

Many documents required to resolve the subject Mechanics' Lien Action regardingAndre Murray v. Betty Rose Danielski are located in or on the premises known ascivic address 29 Marshall Street, Fredericton, New Brunswick.Please be advised October 23, 2009, residential Tenant Andre Murray vacated theproperty pursuant to a Court Order issued from Court of Queens Bench, MonctonTrial Division of October 20, 2009. Furthermore, the Court issued Orders to Vacateresulted 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, abody corporate.

Andr Murray has made his position abundantly clear to Solicitor George H.LeBlanc, that documents necessary to defend his position as the legitimateResidential Tenant, further, that multiple legal documents relative to establishingAndr Murrays legal standing before the Honorable Courts of Queens Bench, NewBrunswick, are being withheld by Solicitor George H. LeBlancs denial of access, to29 Marshall Street Fredericton New Brunswick, as has been requested in writing and

verbally, both in person and by telephone conversation between Andr Murray andSolicitor George H. LeBlanc.

Regrettably, to date, Andre Murray must report that George H. LeBlanc, actingSolicitor for the Royal Bank of Canada, further, which financial institution iscurrently holding an investment interest in the subject property 29 Marshall StreetFredericton New Brunswick by way of a Mortgagee Deed, appear disagreeable andnon responsive to the many attempts made by vacated Residential Tenant AndreMurray and his attempts to regain access to subject documents currently located atthe 29 Marshall Street, Fredericton, New Brunswick property.

Furthermore, please consider that to date Residential Tenant Andre Murray has beenfrustrated by the numerous Notices of Motion and the subsequent relative Court Files

of Motions for Orders of Adjournment of same Court Actions brought in the firstplace by Solicitor George H. Leblanc, acting for Royal Bank of Canada, theMortgagee of subject property.

Kindly consider that since the October 20th, 2009, Ex Parte Hearing of a Royal Bankof Canada Motion to the Honorable Courts requesting Orders to vacate ResidentialTenant from 29 Marshall Street, Fredericton, furthermore, since Residential TenantAndre Murray was the alleged victim an illegal and unlawful eviction from 29Marshall Street, Fredericton Andre Murrays Motion to Rescind the Orders of theCourt of Queens Bench, Moncton Trial Division, New Brunswick, Dated October20th, 2009, has been responded to by George H. LeBlanc, acting Solicitor for theRoyal Bank of Canada by Motions followed by George H. LeBlanc subsequentlyFiling with Court of Queens Bench Motions for Adjournments regarding the hearing

of same.Because of the adverse conditions, subsequently created by the Royal Bank ofCanadas non compliance to Plaintiff Andre Murrays legitimate requests for accessto civic address 29 Marshall Street for retrieval of documents essential to this matterregarding his Claim for Lien, Registered with Service New Brunswick, againstProperty bearing civic address 29 Marshall Street, and 31 Marshall Street,Fredericton, New Brunswick and therefore notwithstanding the aforementionedcircumstances found elaborated here within, consequently Plaintiff Andre Murray


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has no alternative than to request a Continuance of this matter, pursuant to section52.1 (1) (b) of the Mechanics' Lien Act.

I trust the following clearly outlines my position and should you require furtherconfirmation, Plaintiff Andre Murray is at your convenience, and will reply sameday to all correspondence arriving before noon by e-mail [email protected] next day if by Registered Mail to 31 Marshall Street,Fredericton, NB, E3A 4J8.

43. The learned Trial Judge erred in law in the misapprehension of the facts made noreference to the Lease or the unusual circumstances surrounding the matter before the court

except for a passing mention, as is evidenced within the Official Court transcript of the

subject Motion, and heard on the 10th day of June, 2010 at Fredericton,;

Reference: Transcript Page 10. Line 23, 24 and 25:

On October 20th this is 2009 the Plaintiff was ordered to vacate the property.

please take note the here within above Honorable Madame Justice erred in law; demonstrating

Bias and has misapprehended the following in that the plaintiff was not Ordered to vacateproperty in general, rather the subject Order to Vacate was specific to one civic address of a

Residential duplex at 29 Marshall Street in the City of Fredericton, furthermore, the

Honorable Madame Justice erroneously contends that on December 8, 2009there 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 Facts actually are that

the Appellant in the above matter as quoted was the intended Appellant in that matter not as

erroneously referred to as plaintiff aforementioned above by Honorable Madame Justice,

furthermore misapprehension occurs by the learned Trial Judge as there never was a Leave to

Appeal hearing in the month of December, 2009, instead the truth of the matter is the Leave toAppeal Hearing took place on the 9th of November and again on the 12th of November, 2009

and not at all in December 2009. The decision from that leave to appeal hearing of November

12, 2009 was that the Appellant was unjustly evicted from 31 Marshall Street, and costs

where awarded to the Appellant. (may this please the Honorable Court of Appeal below is a

convenient excerpt of transcript as found;

Reference: Transcript Page 10, line 23 continues until Page 11. Line 9.

THE COURT ..On October the 20th - -this is 2009 - - the plaintiff was orderedto 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 8th 2009, there wasa hearing before the court of Appeal in which the plaintiff sought leave to appeal theorder that was made in the Moncton Court on October 20 th, 2009. The leave toappeal was not granted, however the Court of Appeal note that the Order relatedonly to 29 Marshall Street. So the plaintiff moved back into the property atwhatever the other number is. .

44. The learned Trial Judge erred in law in the misapprehension of the here within abovefacts as found Reference: Transcript Page 10, line 23 continues until Page 11. Line 9.


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therefore, demonstrating prejudice in refusing to recognize and or distinguish between

different civic addresses instead Honorable Madame Justice preferred to refer to a single

property and evidently resisted refereeing to a separate civic address as follows:

So the plaintiff moved back into the property at whatever the othernumber is. .

45. The learned Trial Judge erred in law in the misapprehension of the actual purchase Dateof subject property and is seen alternating back and forth between incorrect October 21, 2000

than later the Honorable Madame Justice verbalizes correct Date as October 24, 2000;

Reference: Transcript Page 2. Line 16 continues until Page 2. Line 18.

Date changed at Reference: Transcript Page 9. Line 19 and 20

46. The learned Trial Judge erred in law in the misapprehension of the actual name of theMortgagee alternating back and forth between initially the Royal Bank later

erroneously refers to the Bank of MontrealReference: Transcript Page 2. Line 19 continues until Page 2. Line 21.

Mortgagee name changes at Reference: Transcript Page 9. Line 20 to 22

47. It is Appellant Andr Murrays position that the Court abused its discretion in this matter.The want of the learned Trial Judge to quickly end the mater, as opposed to allowing the

matter to see itself through to a natural conclusion.

The arriving at decisions based on questionable hearsay evidence, which, again the Honorable

Madame Justice took into account irrelevant matters in while ignoring the requested Order of

a Continuance of the Action as related to the Plaintiffs Mechanics Lien. Denial by theLearned Trial Judge of the Plaintiff (in that matter) a chance to tell his side is an Abuse of the

Courts discretion.

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

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 grosslyunsound, unreasonable, illegal, or unsupported by the evidence. See DISCRETION.[Cases: Appeal and Error 946; Criminal Law 1147. C.J.S. Appeal and Error 772.]

48. Abuse of discretion is defined 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 badmistake ("clearly against reason and evidence" or against established law) during atrial or on ruling on a motion and that a person did not get a fair trial. A court ofappeals will use a finding of this abuse as a reason to reverse a previous court result.Examples of "abuse of discretion" or Judges' mistakes include not allowing animportant witness to testify, making improper comments that might influence a jury,


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showing bias, or making rulings on evidence that deny a person a chance to tell hisor her side of the matter. This does not mean a trial or the Judge has to be perfect, butit does mean that the Judge's actions were so far out of bounds that someone truly didnot get a fair trial.

49. The learned trial Judge committed an error in law in not keeping with the generaldirection 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 by raising an issue not argued by either

party.

50. Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) (perJustice 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. Please see: Discretion of Trial Judge page 6 9

51. The learned trial Judge erred in law in making a discretionary decision, which was notbased on argument, raised by either party, submitted affidavit evidence or submitted argument

and not based on just determination of the substantial matters in between the parties and as a

result the Courts Order would result in injustice if allowed to stand.

52. The learned Trial Judge erred in law in not granting a Continuance based on the meritsand circumstances of the matter. The Plaintiff had good reason to ask the Court for a

Continuance, to date the Plaintiff had been evicted on a surprise enforcement of Eviction

Orders resulting from a ex parte Order of the Court, acquired by Solicitors for the Royal Bankof Canada, from the Court of Queens Bench, Moncton Trial Division by lack of proper notice

and or Process Service of Court Documents. Consequentially, documents necessary to move

the subject Mechanics Lien Action forward to discovery are not accessible to Plaintiff in that

matter and Appellant in this Appeal because of the fact that the eviction Order has

consequentially, denied the Appellant (Plaintiff in that matter) access to all contractual

documentary evidence necessary to progress with the Discovery and other preliminary

process prior to arriving at a settlement of the Lien, further, said documents continue to be

with held from the plaintiff after several requests made to retrieve same. The duty learned

Trial Judge of Trial Division is to ensure, so far as possible, that justice is done, it was mostunfair to deprive Plaintiff (in that matter) determination of the proceeding on its actual merits.

53. The learned Trial Judge erred in law in failing to take into proper consideration the facts


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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

hypothetical event that possibly may or may not happen, is not a grounded decision at all.

The Court was aware that the Mortgage Auction had taken place July 16, 2009 and the same

Mortgage Auction had not yet closed. For the Court to dismiss this previously as stated and

established as unusual fact, means that the Learned Trial Judge exercised her discretion under

a misapprehension as to the facts; decision making ability was skewed.

54. 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 clearlyerroneous finding of a material fact. U.S. v. Rahm, 993 F.2d 1405, 1410 (9thCir.'93). A court may also abuse its discretion when the record contains no evidenceto 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 thestandards 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 makedecisions that are fair in a particular case, instead of being locked into a formula thatmay not suit every situation.

The exercise of judicial discretion is difficult to attack on appeal, because thedecision, by law, was left to the Judge in the first place. Nevertheless, judicialdiscretion must be exercised fairly and impartially, and a showing to the contrary

may result in the ruling being reversed as an abuse of discretion.

55. The learned Trial Judge erred in law by resting its decision on a clearly erroneous findingof a material fact, namely that the Mortgagee Deed offered at Auction and Registered against

the subject property has closed and or concluded.

The Sale has not closed and in essence is not a complete sale until that time. Until that time

the Plaintiff (in that matter) Appellant (in this matter) has great potential of recovering his

Equity in the Property.

56. The Plaintiff (in that matter) Appellant (in this) does rely upon a point that which mustnot be overlooked: as long as the Lien is in place the Tentative purchaser will have to honor

his BIDDING PAPERS AND TERMS OF SALE Agreement to Purchase dated: July 16,

2009, requiring, purchaser must honor all Liens, 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


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Abuse of DiscretionA failure to take into proper consideration the facts and law relating to a particularmatter; an arbitrary or unreasonable departure from precedents and settled judicialcustom.

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 ofdiscretion is an error of law and grounds for reversing a decision on appeal. It doesnot, however, necessarily amount to bad faith, intentional wrong, or misconduct bythe trial Judge.

57. The learned Trial Judge erred in law by failing to take into proper consideration the factsand law relating to the case, as presented by submission to the Court by the Plaintiff. The

Court did arbitrarily, unreasonably and mistakenly departs from precedents and settled

judicial custom.

58. The learned Trial Judge exercised discretion in deciding a question before the Court, butdid 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.

59. Continuances are customarily granted only if valid grounds exist that justify thepostponement 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

Honorable Court.

60. Abuse of Discretion is furthermore defined by the Cornell Law University Website at thefollowing website address: (http://topics.law.cornell.edu/wex/abuse_of_discretionAbuse of

discretion)

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 toexercise sound, reasonable, and legal decision-making skills.

61. The learned trial Judge erred in law in application of judicial discretion, judicialdiscretion must be exercised fairly and impartially, and a showing to the contrary may result

in the ruling being reversed as an abuse of discretion.

62. Furthermore Manifest Abuse of Discretion is defined by duhaime.org at the followingaddress: (http://www.duhaime.org/LegalDictionary/M/ManifestAbuseofDiscretion.aspx)

Manifest Abuse of Discretion


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An American standard of judicial review: discretion exercisedimprovidently or thoughtlessly and without due consideration.

InBeverly 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 ofreview has been provided. It applies where the proceedings are erroneous onthe face of the record and where it is apparent on the face of the record thatthere has been a plain, manifest, clear, and gross abuse of discretion.

"A manifest abuse of discretion is discretion exercised improvidently orthoughtlessly and without due consideration."

InMalicoat, the Indiana Court of Appeal preferred:

"[M]anifest abuse of discretion ... is when the trial court's decision isclearly against the logic and the facts of the case."

But, then, inBitterrooters, the Montana Supreme Court used these words:

"A manifest abuse of discretion is one that is obvious, evident, orunmistakable."

63. A manifest abuse of discretion is one that is obvious, evident, or unmistakable whichthe Appellant believes is apparent in this here subject matter before the Court of Appeal.

64. The learned trial Judge erred in law, by demonstrating prejudice furthermore conductingthe proceedings in hearing of the Motion for a Continuance of the Mechanics Lien Action

should be arbitrarily decided based on predetermined criteria advanced by the Court itself andnot 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.

2) Rule 39.01 Evidence on Motions

EVIDENCE ON MOTIONS AND APPLICATIONS39.01 By Affidavit(1) On a motion or application evidence may be given by affidavit unless directedotherwise by these rules or by order.

65. Admissible evidence is evidence which can be brought forward in a hearing to support orundermine 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.


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66. The learned trial Judge erred in law in not adhering with the Rule39.01 (1) On a motionor application evidence may be given by affidavit unless directed otherwise by these rules or

byorder., The learned trial Judge made the pivotal decision in hearing the said Motion

Dated: 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 heard before the Honorable Court, orders sought first and primary, as was listed

as such, which incidentally was continually ignored and or avoided by Madame Justice;

a) That, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, the mechanics LienAction be continued until October 21, 2010 or further Order of this Court.

67. 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.

68. The trial Judge erred in law in admitting as evidence Third Hand hearsay statements ofSolicitor Hugh J. Cameron and a unnamed Solicitor for Cox & Palmer, allegedly spoken by

telephone to Solicitor for the Respondent. 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 hearsay as evidence as it had

no probative value to the matter of Continuance of the Mechanics Lien Action while being

highly prejudicial.

69. Black's Law Dictionary (8th ed. 2004) ,defined the HEARSAY, HEARSAYEXCEPTION and HEARSAY RULE as the following:

HEARSAYhearsay. 1. Traditionally, testimony that is given by a witness who relates not whathe or she knows personally, but what others have said, and that is thereforedependent on the credibility of someone other than the witness. Such testimony isgenerally inadmissible under the rules of evidence. 2. In federal law, a statement(either a verbal assertion or nonverbal assertive conduct), other than one made by thedeclarant while testifying at the trial or hearing, offered in evidence to prove the truthof the matter asserted.Fed. R. Evid. 801(c). Also termed hearsay evidence;secondhand evidence. Cf. original evidence under EVIDENCE. [Cases: Criminal

Law 419;Evidence 314324. C.J.S. Criminal Law 856; Evidence 227228, 234,259266, 268284,319, 505506.]double hearsay. A hearsay statement that contains further hearsay statements withinit, none of which is admissible unless exceptions to the rule against hearsay can beapplied to each level


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hearsay exception. Any of several deviations from the hearsay rule, allowing theadmission of otherwise inadmissible statements because the circumstancessurrounding the statements provide a basis for considering the statements reliable.

HEARSAY RULEhearsay rule. The rule that no assertion offered as testimony can be received unless itis or has been open to test by cross-examination or an opportunity for cross-examination, except as provided otherwise by the rules of evidence, by court rules,or by statute. The chief reasons for the rule are that out-of-court statementsamounting to hearsay are not made under oath and are not subject to cross-examination. Fed. R. Evid. 802. Rule 803 provides 23 explicit exceptions to thehearsay rule, regardless of whether the out-of-court declarant is available to testify,and Rule 804 provides five more exceptions for situations in which the declarant isunavailable to testify. [Cases: Criminal Law 419; Evidence 314324. C.J.S. CriminalLaw 856; Evidence 227228, 234, 259266, 268284, 319, 505506.][T]he great hearsay rule ... is a fundamental

70. The first incident of acceptance before the Court of hearsay evidence occurred as can befound in the transcript of the subject Motion.. The Honorable Madam Justice Paulette Garnett

states that she does not, (however and in spite of voluminous substantive Court filedmaterial) have the information she needs to come to a decision as follows,

Reference: Transcript Page 2. Line 16 continues until Page 2. Line 25;

THE COURT: let the record show that I have read all of the documents that havebeen filed, and they reveal that on October the 21 st, 2000 the defendant, Betty RoseDanielski, purchased the subject property. On October the 26th, 2000 she gave amortgage to the Royal Bank.

Now, Mr. Christie, what I am not able to tell from the record is how much themortgage was for.Do you have that information?

MR. CHRISTIE: I do not. Im sorry.

71. Reference: Transcript Page 4, line 12 continues until Page 4. Line 23;MR. RICHARDSON: Its the best the whole of the affidavit. I didnt realize thatthe exhibits were in substance in

MR. CHRISTIE: The If I may, I note that the mortgage dated October 26th, 2000of 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.

72. The second incident of acceptance before the Court of hearsay evidence occurred as canbe found in the transcript of the subject Motion. The Honorable Madam Justice Paulette

Garnett states that she does not have the information she needs to come to a decision as

follows,


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Reference: Transcript Page 5, line 6 continues until Page 6. Line 13;

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, asfar as I know, is contained in the mortgage. I, I havent .Mr. Christies the onlyone 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

claimfor lien. So, the mortgage salewhen the property was sold, if it was sold at adeficiency, 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 anychance of recovering from the proceeds of the property. What Im trying to say isthis whole thing might be moot and if I had that information Id know whether it is ornot.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.

THE COURT: Do you know?

MR. MURRAY: Um

MR .CHRISTIE: If I was to suggest a 10 or 15 minute adjournment would that beof any help to the court?

73. Reference: Transcript Page 8, line 15 continues until Page 9. Line 4;(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 Cameronwho 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 anotherproceeding involving the bank and the numbered company who purchased it. And inthat affidavit he deposes, and he has confirmed for me this afternoon, that his clientoffered and was accepted the amount of $79,101, 79,101 of which a deposit of $8000has been put toward the purchase price which is still being held, of course, becausethis lien is holding up the conclusion of that.

74. The Third incident of acceptance before the Court of hearsay evidence occurred as can be


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found in the transcript of the subject Motion. The Honorable Madam Justice Paulette Garnett

states that she does not have the information she desires.

Reference: Transcript Page 9, line 5 continues until Page 9. Line 15.

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 RoyalBank

THE COURT: Okay.

MR. CHRISTIE: who have advised me that on July the 8th, 2009 the amountowing at that time, which would be inclusive of the taxes and legal fees associatedwith 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.

75.

Reference: Toronto-Dominion Bank v. Cambridge Leasing Ltd., 2006 NBQB 92(CanLII) (per William T. Grant) Paragraph 7 9.

76. The requested information could have been misunderstood, mixed up or in error. For thelearned Trial Judge to utilize hearsay information to make the pivotal decision of whether to

dismiss the Motion of June 10, 2010 or not is an error in law and unjust to the Plaintiff in that

matter. The information and statements should be under oath, solemn affirmation or affidavit.

77. Reference: R. v. Duguay, 2005 NBQB 63 (CanLII) (per Justice Lucie A. LaVigne)Paragraph 15 18.

78. Reference: R. v. Duguay, 2005 NBQB 63 (CanLII) (per Justice Lucie A. LaVigne)Paragraph 8 11.

79. Admissible evidence is material brought before a Court to support or undermine a legalcase. In order to be considered admissible evidence, certain standards must be met. The

learned Trial Judge did not allow Plaintiff argument of admissibility of hearsay information,

regardless that this information is irrelevant to the matters of a Continuance. Plaintiff is

prejudiced.

80. Black's Law Dictionary (8th ed. 2004) ,provides the following definition of admissibleevidence:

admissible evidence.Evidence that is relevant and is of such a character (e.g., notunfairlyprejudicial, based on hearsay, or privileged) that the court should receive it. Alsotermed


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competent evidence; proper evidence; legal evidence. [Cases: Criminal Law 661;Federal Civil Procedure 2011; Trial 43. C.J.S. Criminal Law 656, 751, 1202; Trial 162.]

81. Admissible evidence is defined by legal-dictionary.thefreedictionary.com at the followingaddress: (http://legal-dictionary.thefreedictionary.com/Admissibility+of+Evidence)

admissible evidence n. evidence which the trial Judge finds is useful in helping thetrier of fact (a jury if there is a jury, otherwise the Judge), and which cannot beobjected to on the basis that it is irrelevant, immaterial, or violates the rules againsthearsay and other objections. Sometimes the evidence which a person tries tointroduce has little relevant value (usually called probative value) in determiningsome fact, or prejudice from the jury's shock at gory details may outweigh thatprobative value.

82. Reference: Bari c. R., 2006 NBCA 119 (CanLII) (per Justice ALEXANDREDESCHNES, J.A.) Paragraph 17 19

83. Appellant Andre Murray believes a fundamental concern of reliability lies at the heart ofthe hearsay rule. By excluding non affidavit submissions that which may produce unfair

verdicts, the hearsay rule serves as a cornerstone of a fair justice system

84. The learned Trial Judge erred in law in accepting as evidence hearsay statements beforethe Court, moreover, the learned Trial Judge erred in law by the misapprehension of the

purpose of the Motion and instead of dealing with the Orders as requested and listed found

there within concerned herself with matters irrelevant for the purposes of addressing the

Orders as requested.

85. The learned Trial Judge erred in law by allowing for Admissibility of hearsay evidence, aswas brought before the Court after the adjournment (called for those purposes), hearsay may not

be relied upon as proof of the truth or used as evidence, since cross-examination is not possible,

to test its veracity and, consequently, infringes upon the principles of fundamental justice.

86. Hearsay rule exceptions remain in Common law, interpreted and updated to conform tothe twin requirements of necessity and reliability. Further evidence not falling within an

exception may be admitted if the prerequisites 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.

87. Applying above rules to this case, the question is whether an established exception to the


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hearsay rule applies to the evidence at issue requested by the Court. The answer in this case

is no.

Reference: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, Paragraph 15 to 17

(Per Chief Justice McLachlin C.J.)

88. The trial Judge erred in law in not Ordering an adjournment sufficient in time so that theinformation requested by the Court could be obtained by affidavit and served on the affected

parties.

3) Rule 39.04 Service of Affidavits

EVIDENCE ON MOTIONS AND APPLICATIONS

39.04 Service of AffidavitsExcept for the person giving Notice of Application or Notice of Motion, any personwho intends to give affidavit evidence at the hearing shall serve a copy of suchaffidavit

(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 thehearing.

89. The learned trial Judge erred in law in not Ordering an extended adjournment adequate sothat 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

AffidavitsExcept 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

90. This adherence to the Rules of Court would have provided the Plaintiff an opportunity toexamine the documents and prepare a counter claim for the courts consideration.

4) Rule 2.03 Attacking the Regularity of Proceedings

NON-COMPLIANCE WITH THE RULES2.03 Attacking the Regularity of Proceedings

A motion to attack a proceeding for irregularity shall be made within a reasonabletime, and shall not be allowed if the party applying has taken a further step in theproceedingafter having knowledge of the irregularity.

91. The learned Trial Judge erred in law, in irregular application of the Courts Discretion tonot Grant a Continuance according to section 52.1 (1) (b) of the Mechanics Lien Act. The

Appellant brings the Courts attention according to Rules of Court, Rule 2.03 Attacking the


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Regularity of Proceedings and considers that the learned Trial Judge improperly exercised,

with prejudice, the Courts Discretion in arriving at a final decision.

92. The learned Trial Judge erred in law ("nobody shall be a judge in his own cause") byimproperly directing the parties to provide information, which had not been included in therecord filled with the Court, not substance of argument as by either party.Justice should not

only be done but it should be seen to have been done The Judge hearing a case should refrain

from coming to a conclusion without hearing argument from one party or the other

93. 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.

5) Maxim -Audi Alteram Partem -Latin; literally 'hear the other side'.

Maxim - Audi Alteram Partem -Latin; literally 'hear the other side'.

94. The principles of natural justice have evolved under common law as a check on thearbitrary 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.

95. The learned trial Judge erred in law in not recognizing the principal of law expressed inthe Maxim Audi Alteram Partem (Latin; literally 'hear the other side'). The Appellant

comprehends the following maxim to mean, in law, that no person shall be condemned,

punished or have any property or legal right compromised by a court of law without having

first heard that person.

The learned trial Judge, would not allow the Appellant 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 filed documents.

96. The learned trial Judge erred in law in not recognizing the principal of law expressed inthe Maxim Audi Alteram Partem, vide supra, in not considering documents filed by the

Appellant to address the fact that the Tentative purchaser, 501376 N.B. Ltd, a body corporate,

at the Mortgage Sale, had caused a contract to be signed, BIDDING PAPERS AND TERMS

OF SALE Agreement to Purchase, Dated, July 16, 2009 which stated specifically that the


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purchasers would honor all Liens in full on the date of delivery of the Deed to such purchaser,

again the Plaintiff was not permitted to speak to these matters.

97. The learned trial Judge erred in law in not recognizing the principal of law expressed inthe Maxim Audi Alteram Partem, vide supra, by not allowing the Plaintiff to draw the

attention of the learned trial Judge to the fact that the source of the subjective pivotal

hearsay information, which the Madame Justice ultimately relied upon, was not Sworn to

under Oath, and was hearsay information sourced both from stated and ambiguous sources,

moreover, but not less prejudicial is the fact that the sources of hearsay have blatantly

evident conflicts of interest:

Allegedly Mr. Christie spoke with (ambiguously identified)council for the Royal Bank of

Canada vendor of the Investment Instrument Mortgagee Deed registered against subject

property. (Reference: Transcript; Page 9. Line 4).

who have advised me (further ambiguity: Reference: Transcript; Page 9 Line10).

This same interest was sold at Auction to Solicitor Hugh Cameron acting as Agent

for Purchaser: 501376 N.B. Ltd, a body corporate.

Reference: Transcript page 9. line 5, through to line 10;

Solicitor Hugh J.Cameron acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate,

who signed a BIDDING PAPERS AND TERMS OF SALE Agreement to Purchase, Dated,

July 16, 2009, , which above said agreement, excerpted as follows:

the purchaser agrees to pay any outstanding ..Liens, (which Appellant does rely upon)

Reference: please see BIDDING PAPERS paragraph 10. reproduced below for convenience:

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

98. The learned trial Judge erred in law in not recognizing the principal of law expressed inthe Maxim Audi Alteram Partem, vide supra, evidently, 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, moreover, the learned trial

Judge erred in law ignoring the primary Order, focusing instead on the following secondary

order as was listed, as: b) That the Court grant a Extension of time pursuant to Rule 3.02 of

the Rules of Court.


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99. The following is found at legal-dictionary.thefreedictionary.comat the following internet web address provided below:

http://legal-dictionary.thefreedictionary.com/audi+alteram+partem

audi alteram partem

[Latin, hear the other side.] It embodies the concept in Criminal Law that no personshould be condemned unheard; it is akin to due process. The notion that anindividual, whose life, liberty, or property are in legal jeopardy, has the right toconfront the evidence against him or her in a fair hearing is one of the fundamentalprinciples of Constitutional Law in the United States and England.

100.The learned trial Judge erred in law by not applying the principle that no person shouldbe Judged without a fair hearing in which each party is given the opportunity to respond to the

evidence.

101.Furthermore the following principle of natural justice is found at wikipedia.org addressprovided below: (http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua)

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.

102.The following is found at duhaime.org address provided below:http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx

Audi Alteram PartemLatin; literally 'hear the other side'.

The maxim means, in law, that no person shall be condemned, punished or have anyproperty or legal right compromised by a court of law without having heard thatperson.

Justice Bayley wrote, in Chapel v Child:

"I know of no case in which you are to have a judicial proceeding, by whicha man is to be deprived of any part of his property, without having anopportunity of being heard."

A principle of natural justice which prohibits a judicial decision which impacts uponindividual rights without giving all parties in the dispute a right to be heard.


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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 ahearing 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 insistentlythrough the centuries, is now a command, spoken with the voice of the dueprocess clause of the 14th Amendment, against state governments, andevery branch of them - executive, legislative, and judicial - whenever anyindividual, however lowly and unfortunate, asserts a legal claim.

"It is beside the point that the claim may turn out not to be meritorious. It isbeside the point that delay in the enforcement of the law may be entailed ...

"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 tosociety, in the light of the said history of its denial, than inconvenience inthe execution of the law. If this is true when mere property interests are atstake ... how much more so when the difference is between life and death?"

103.The following is found at wikipedia.org at the following address:http://en.wikipedia.org/wiki/Audi_alteram_partem

Audi alteram partem

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 personshould be Judged without a fair hearing in which each party is given the opportunityto 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 toconfront the witnesses against him, to have a fair opportunity to challenge theevidence presented by the other party, to summon one's own witnesses and to presentevidence, and to have counsel, if necessary at public expense, in order to make one'scase properly.

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 Greekdramatists.[3]

104.The transcript of the Motion and subject of this appeal, for a Continuance of theMechanics Lien Action, heard on the 10th day of June, 2010 at Fredericton, New Brunswick,

transcribed by Blackwell Court Reporting, illustrates, the Honorable Madam Justice PauletteGarnetts assertion contrary to principles of fundamental justice, furthermore, the learned

Trial Judge verbalized that the actual complete circumstance of the matter before the court, is

of no consequence in the determination of the Honorable Courts decision.

Reference Transcript beginning at page 11. Line 12 continues until Page 13. Line 24:


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105. The learned trial Judge erred in law in not recognizing the principal of law expressed inthe Maxim Audi Alteram Partem, vide supra by unilaterally arriving at the decision to dismiss

the entire Motion, based on irrelevant hearsay information not related to any of the Orders

requested; all reference to Orders requested where restricted to a secondary Order found listed

within the Motion, rather than considering the primary Order as requested. Instead the learned

trial Judge chose to explore a hypothesis that has not yet concluded, while chimerically

alluding that it has. Note: the Mortgage sale has not yet closed and at any time the tentative

purchasers may withdraw from the contractual Agreement for Purchase resulting in a new

Mortgage auction sale or private sale by the Vendor R.B.C., again, which, may provide the

Plaintiff (in that matter) with compensatory funds in accordance with the Plaintiffs

Mechanics Lien Claim.

6) 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.

106. The principle that no one should be a Judge in his own action, there underlies thedoctrine 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 Honorable Madame Justice Paulette Garnetts instructional

comments could cause a reasonable observer to apprehend bias.

107. The learned Trial Judge erred in law in not recognizing the principal of law expressedin 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 in that matter, then charged the Solicitor

for the Defendant to adjourn - collect that vary same information, without questioning the

validity or reliability of the same inadmissible hearsay information.

108. The learned Trial Judge erred in law in not recognizing the principal of law expressedin the maxim nemo judex in causa sua debet esse, vide supra, moreover, the learned trial Judge

in this matter at the outset of the hearing of the Motion did declare (please see provided

transcript: Page 2 Line 16 excerpt: THE COURT: Let the record show that I have read allof the documents that have been filed..) as the learned Trial Judge tacitly assured all

concerned that the Honorable Court was well advised on the matters before the Court than

reasonable apprehension of bias, should have been obvious in the matter of obtaining

information that was not sworn to under oath, possibly said in error and was hearsay

information sourced from the same Solicitor acting as Agent for Purchaser, 501376 N.B. Ltd,

a body corporate, who

September 20, 2010 Appellant's Submission to The Court of Appeal of N.B. File Number 82/10/CA ANDRE...

Documents

Transcript of September 20, 2010 Appellant's Submission to The Court of Appeal of N.B. File Number 82/10/CA ANDRE...