Court of Appeal oral argument May it please the Honorable Court that a one hour recess took place

on the day of the Motion for Orders for Continuance the one hour recess occurred between a initial 9 minute hearing which was followed after the recess by an additional 11 minute hearing. This in itself the one hour recess is grounds enough that the learned trial Judge ought to have realized a continuance was necessary and would have served justice far better than a one hour recess between a 9 and 11 minute hearings. My Appeal is an Appeal not only with respect to the abundance of Errors in Law Requiring a Motion for adducing Fresh Evidence These grounds typically could include errors of law, fact, or procedure As a litigant self represented I approach this High Court of Appeal with great respect and reverence. I wished to rely almost exclusively on written arguments that emphasize detailed analysis of the applicable law and the trial testimony. It is easy to forget however, that parties are entitled only to a fair trial, not a perfect one. I also comprehend that there exists a standard of review; where: the Appellate Court generally defers to the lower court especially on fact issues. Also a trial judge should not be reversed in his or her decision. There is generally the harmless error rule; not every error warrants a reversal Stare decisis the principle that precedent should govern These four pillars appear to have been created to avoid hasty or inappropriate reversals. the Appellant understands that the Appellate Court generally defers to the lower court especially on fact issues: In this case the Appellant believes the learned trial judge created the issues and facts, which, respectively speaking, indeed, where actually inference; from defective or presumptive evidence and hear say; information treated as fact. should the decision of the learned trial judge be reversed? In this case the Appellant believes the learned trial judge never offered a decision during or after the trial. The trial ended with the trial Judge hastily departing the Court Room repeating the End the End this can hardly be considered a decision. For that matter a decision supported by reasons has never been offered.

the harmless error rule; not every error warrants a reversal. The Appellant believes this Court hearing was impugned and against natural justice and or procedural fairness involving: gathering hearsay evidence; a proceeding not permiting argument from the parties while being entirely directed by the learned trial judge These errors are harmful.

Stare decisis a principal that precedent should govern. Respectfully, the Appellant does not believe this is a precedent that can reasonably and or consequentially, be allowed, to govern our Courts.

As the Appellant is inexperienced, as before this most Honorable Court, furthermore, the appellant by no desire of his own doing has been thrust into the necessity of appealing this case. Fortunately though, and were it not for the brevity of the Trail, from which this appeal stems, it is certain that the task of preserving the errors would have been difficult. Except in this case we will see that the brevity, of the Trail in itself is an error, however, waver of error would be difficult in this situation, since in total the trial lasted through two hearing proceedings of only 9 then 11 minutes respectively.

I do believe that it is the respondents position that this Court of Appeal must suffer numerous pleadings which I assert are not credible, direct and or succinct since the contents of the Respondents Submission I believe is for the most part Rule 27.09 Appellant Andre Murray Motions The Court of Appeal requesting Orders to Adduce new evidence. The Respondents have not objected to the Appellants here within mentioned Motion to Adduce Fresh evidence. The Appellant believes the new evidence intended to be Adduced is and or may be beneficial for the Court of Appeal as substantive material, as the subject material found contained there within, is referenced in the Appellants Submission. The Appellant further requests an Order pursuant to Failure to Comply with Rule under Rule 62.24(1) and 62.24(1)(c) of the Rules of Court for an order for payment of costs of the within Motion and the costs of the Appeal forthwith for non-compliance with Rule 62.20, regarding Service of Respondents Submission. Under that rule, the Respondent failed by evidentially resisting proper Court Document Service protocol, (a code prescribing strict adherence to correct etiquette and precedence) according to the Rules of Court. Moreover a
copy of the Respondents Submission was required service upon the Appellant according to the Rules of Court, in this case requiring the subject Document Service no later than the 20th of October, 2010, this did not occur. The Solicitor for the Respondent, in this matter, has a demonstrable history of non compliance with the Rules of Court 20.02(2), 18.02(1)(a), 18.03(1), furthermore, the Solicitor for the Respondent has not adhered to The Law Society of New

Brunswicks Code of Professional Conduct, CHAPTER 15 Section 2 (iii), 2 (v), 2 (vii) and Section 4, consequently, the Appellant requests the Court to consider this when ruling as to costs of the within Motion and the costs of the Appeal The Appellant will rely upon the written submission found within the Appellants Brief Dated: November 02, 2010 provided in support of the Appellants Motion. If it pleases The Court of Appeal the Appellant is prepared to answer any questions regarding the subject Motion including Rule 62.24(1) and 62.24(1)(c) of the Rules of Court if the Court of Appeal has questions in this regard.

Should the appellate Court not allow the Appeal, detriment to the Appellant will surely result as Betty Rose Danielski is by nature a transient. not remaining a resident, any where for long, and will take flight at the first sign of any potential distress. The Appellant grants that a Financial Investment Instrument called a mortgage was received that was a $8,000 deposit paid towards the tentative sale of the Mortgage. The house has not been sold. That the Respondent alludes, to the house as sold is a misapprehension of the facts. The house is not for sale it is a Financial Investment Instrument called a mortgage that is for sale. His client in this case the Respondent still owns the house, as it is evidenced by the fact that the property is currently registered in the respondents name.

Now I would like to move onto the Appeal. Introduction 1) Rule 1.03 Interpretation 2) Rule 39.01 Evidence 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 Introduction On June 10, 2010, in the Court of Queens Bench Trial Division, Judicial District of Fredericton a Motion was heard. Before the Honorable Court, that day, was a simple request of Orders, amongst other things, primarily the granting of a Continuance of an Action, which was necessary to continue a Mechanics' Lien Action, pursuant to section

52.1 (1) (b) of the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6,.as brought by Motion by Appellant (Plaintiff) Andre Murray. The Appellant is standing.

If it pleases the Court Pursuant to, RULE 27 under Rules of Pleading, as it relates to the lower Courts, every allegation of fact, in a Statement of Claim, is deemed admitted, unless the defendant denies the allegation. However in the matter before the Court of Appeal this day, the Defendant in that matter Respondent in this matter did not deny knowledge of any portion of the Plaintiffs Statement of Claim nor to date any portion of the entirety of the allegations formulated in the Plaintiffs subsequent, Amended Statement of Claim The Appellant before this Court of Appeal respectfully asserts that these pleadings which the Defendant has chosen not to refute (to prove to be false or erroneous, as an opinion). It is consequently reasonable that by virtue of a neglect by the Defendant in filing a Statement of Defense this Court of Appeal should consider the Plaintiffs Statement of Claim and contents thereof as deemed to be admitted by the Defendants and or Respondent in this matter.

Since the dismissal of the Motion of June 10, 2010 is apparently based solely on the non sense that funds sufficient to cover the Plaintiffs Claim for Lien do not exist adequate to satisfy Plaintiffs Claim for Lien as filed under the Mechanics Lien Act, the impugned judgment of the Learned Trial Judge of Court of Queens Bench must be set aside and the mechanics Lien Action and Orders of the Court of Appeal granting the subject Continuance, should be given. May it please this Court The following is from West's Encyclopedia of American Law, edition 2., (found at the following address: http://legaldictionary.thefreedictionary.com/continuance) A continuance may be granted for the accidental loss or destruction of papers in an action provided they cannot be readily replaced and the applicant for the continuance was not responsible for their loss. The standard practice, is that, a Continuance is granted when requested, because, it is necessary in order to prevent prejudice to the applicants rights.

The learned Trial Judge on hearing the Motion of June 10, 2010, erred in law by admitting as evidence, hearsay statements, 1. FIRST: by announcing the prerequisite material necessary to effectively pre determine the outcome of that hearing, 2. SECOND: by requesting of the Solicitor for the Defendant, that he should go from the Court Room and obtain, what is essentially hearsay and return to the Court Room that same day. If it pleases the Court The learned Trial Judge did synchronize with the Solicitor for the Defendant to determine that a 15 minute recess would be sufficient to gather the hearsay. or the purposes of requesting the hear say evidence then finally obtained by Solicitor for the Defendant Thomas Christie.

A certain complicity and therefore evident bias was demonstrated by Madame Justice Garnett as the learned judge instructed Solicitor Thomas Christie, as it was agreed between the Court/Bench and the Solicitor for the Defendant Thomas Christie, further, that during an adjournment scheduled for fifteen minutes Solicitor Thomas Christie would than source certain information, as was directed by the Learned Trial Judge, furthermore as was explained by the Trial Judge to the Solicitor for the Defendant that, the decision or outcome of the subject trial will hinge on a question of whether enough funds are currently left outstanding and sufficient, enough to justify the extension as requested by Plaintiff Andre Murray. The hearsay information, as agreed between Trial Judge and the Defendants Solicitor was to be sourced from the Solicitor for the tentative purchaser of the Mortgage, whose statement could have been made in error or purposefully misleading to the advantage of his client. The circumstances surrounding the collection of the hearsay statements did not have the guarantee of trustworthiness necessary to allow their admission, or any other of the exceptions allowable pursuant to the Hearsay Rule.

Reasonable Apprehension of Bias

In R. v. S. (R.D.), [1997] 3 S.C.R. 484, the header of the Courts decision sums up the case before the supreme Court and provide relevant insight into the reasonable apprehension of bias displayed by the actions and assertions of Honorable Madam Justice Paulette Garnettt, the relevant section of R. v. S. (R.D.), [1997] 3 S.C.R. 484 is provided in the following: (2) Reasonable Apprehension of Bias Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The courts should be held to the highest standards of impartiality. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. The trial will be rendered unfair if the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer. Judges must be particularly sensitive to the need not only to be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin. If actual or apprehended bias arises from a judges words or conduct, then the judge has exceeded his or her jurisdiction. This excess of jurisdiction can be remedied by an application to the presiding judge for disqualification if the proceedings are still underway, or by appellate review of the judges decision. A reasonable apprehension of bias, if it arises, colours the entire trial proceedings and cannot be cured by the correctness of the subsequent decision. The mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from the judges other words or conduct. However, if the judges words or conduct, viewed in context, do not give rise to a reasonable apprehension of bias, the findings of the judge will not be tainted, no matter how troubling the impugned words or actions may be. The basic interests of justice require that the appellate courts, notwithstanding their deferential standard of review in examining factual determinations made by lower courts, including findings of credibility, retain some scope to review that determination given the serious and sensitive issues raised by an allegation of bias. Impartiality can be described as a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to particular issues. Whether a decision-maker is impartial depends on whether the impugned

conduct gives rise to a reasonable apprehension of bias. Actual bias need not be established because it is usually impossible to determine whether the decisionmaker approached the matter with a truly biased state of mind. The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. The test applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic ... The reasonable person approaches the question of whether there exists a reasonable apprehension of bias with a complex and contextualized understanding of the issues in the case. He or she understands the impossibility of judicial neutrality but demands judicial impartiality. This person is cognizant of the racial dynamics in the local community, and, as a member of the Canadian community, is supportive of the principles of equality. Before finding a reasonable apprehension of bias, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process.

1) Rule 1.03 Interpretation The learned trial judge committed an error in law in not keeping with the general direction expressed in the New Brunswick Rules of court Rule 1.03(2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits in not taking into consideration the prejudice to the (Plaintiff in that matter) APPELLANT

Andre Murray by raising issues not argued by either party and conversely the learned trial judge avoided considering all pleadings filed as meritorious and or substantive by both parties to the Motion for orders including that pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, the mechanics Lien Action be continued until October 21, 2010 or further Order of this Court Continuance .

The learned trial judge committed an error in law in not keeping with the general direction expressed in the New Brunswick Rules of court Rule 1.03(2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits in that the Madame Justice in hearing the Plaintiffs AMENDED NOTICE OF MOTION (FORM 37A) Filed with COURT OF QUEENS BENCH FREDERICTON TRIAL DIVISION, further, was received and filed Stamped /Dated MAY 31 2010, furthermore, upon the hearing of the subject motion the order sought as provided and listed as: a) That, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, the mechanics Lien Action be continued until October 21, 2010 or further Order of this Court. The Trial judge instead appeared and did entirely neglect to address the aforementioned requested order and instead addressed only the next order as listed b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of Court, May it please this Honorable Court; APPELLANT Andre Murray has purchased a CD disk of the Court Hearing transcript and has commissioned a written transcript. Subsequentially, after listening to the aforementioned CD disk Transcript as provided by Court of Queens Bench, Fredericton Client Services, further, after a dozen listening reviews of said CD disk Transcript it is realized that APPELLANT Andre Murray is not permitted to speak or counter claim as Madame Justice dominates the entire Hearing, speaking on behalf of both the Plaintiff and Defendant to the Motion. At the end of the first Hearing 9 minutes, and following the one hour adjournment, as Madame Justice instructed the Solicitor for the Defendant to gather hearsay information for which Madam Justice announced in advance of receiving the answers to her verbalized questions, that if the answers are, as Madam Justice expected, than, Madam Justice would consequentially rely on the hearsay answers returned to her following the adjournment and did in fact, render a Motion Dismissed; Duration of second hearing, was not more than 11 minutes. NOTE:

APPELLANT Andre Murray is able near the end of the Hearing to briefly utter words to the effect that the APPELLANT requires his requested Order pursuant to section 52.1 (1) (b) of the Mechanics Lien Act; a Continuance of the Action Unfortunately, Madame Justice refused to reply to these pointed assertions of Plaintiff Andre Murray, instead Madame Justice insisted on addressing only the matter of a Extension of time pursuant to Rule 3.02. Encyclopedia.com defines abuse of discretion at the following address: (http://www.encyclopedia.com/doc/1G2-3437700045.html) ABUSE OF DISCRETION A failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedent and settled judicial custom. .. Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge. An appellate court would find that a trial court abused its discretion, however, if it admitted into evidence a photograph without proof that it was authentic.

2) Rule 39.01 Evidence on Motions The learned trial judge erred in law in not adhering with the Rule 39.01 (1) On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order. , The learned trial judge made the pivotal decision of whether to Grant a Continuance pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act on what should have been inadmissible hearsay information.

The following definition: hearsay evidence was found at mylawyer.com at the following web address: (http://www.mylawyer.com/legalinfo.asp?level=3&id=157) Hearsay Evidence The prohibition against admitting out-of-court statements to prove the truth of the matter stated, known as hearsay, is a cornerstone of American trial procedure. Testimony that she told me that John hit Jane is improper because the declarant, or the person who made the original statement to the testifying witness, is not present in court and sworn in under oath. In criminal cases, the rule against hearsay is especially crucial, since a defendant has the constitutional right to confront witnesses testifying against him. Furthermore, the jury is entitled to examine the credibility, demeanor and appearance of a declarant and the admission of hearsay testimony robs jurors of that opportunity. The rule against hearsay is complex due to a myriad of exceptions available to allow the admission of many hearsay statements. Since hearsay is prohibited because it generally goes to prove the truth of the matter, (for example, that John did, in fact, hit Jane), if another reason for the statements admissibility is shown and the declarant is unavailable, the jury will often be allowed to hear the testimony. The trial judge erred in law in both requesting hearsay evidence from Solicitor Thomas Christie for the Defendant than accepting hearsay as evidence before the Honorable Court about the sale price without the use of Filed Affidavit Proof of Claim. The circumstances surrounding the entry into and on record of the hearsay Claims could not have the guarantee of trustworthiness necessary to allow their admission as evidence. NOTE: As this very same hearsay was being heard confusion as to the actual numbers and details required a correction and repetition of the Entry on Record.

The trial judge erred in law in admitting as evidence, hearsay statements by Solicitor Thomas Christie for the Defendant, offered to the Honorable Court regarding the outstanding amount owing to RBC - the vendors of the Investment Instrument Mortgagee Deed following a Notice of Mortgage Sale effecting the Property Sale. The information source was the Solicitor for the tentative purchaser of the Mortgagee Deed whose answer could have been made in error, possibly incorrectly heard over the telephone and or may have alluded to the advantage of his client. The circumstances

surrounding the making of the impugned entries On Record did not have the guarantee of trustworthiness necessary to allow their admission.

3) Rule 39.04 Service of Affidavits

The Plaintiff has never been served with the Affidavit of Betty Rose Danielski before or after the June 10, 2010 Hearing of the Motion for a Continuance, the same Affidavit which, he solicitor for the Defendant intended to be used at the hearing.

Had the parties to the Action been allowed, as a right, to be heard by the Court, the Plaintiff would have objected to this Affidavit or any part of this Affidavit being read onto the Court Record.

4) Rule 2.03 Attacking the Regularity of Proceedings Justice Smt. Sujata V. Manohar, Supreme Court of India (Retd.) defined Principles of Natural Justice at itatonline.org at the following address: http://www.itatonline.org/articles_new/index.php/principles-of-natural-justice/ The principles of natural justice have evolved under common law as a check on the arbitrary exercise of power by the State. As the State powers have increased, taking within their ambit not just the power of governance but also activities in areas such as commerce, industry, communications and the like, it has become increasingly necessary to ensure that these powers are exercised in a just and fair manner. The common law, which is a body of unwritten laws which govern the legal systems of England, USA, Canada, Australia and other commonwealth countries including India, has responded to this need to control the exercise of State powers through applying the principles of natural justice to the exercise of such powers. There is only one more principle that has slowly taken root as a part of natural justice. This is the principle that every decision must contain reasons for the decision. Reasons may be elaborate or may be brief. But these are beginning to be considered necessary to ensure fair decision making. What exactly are these principles? Basically, these are principles which are necessary for a just and fair decision making. These principles are often

embedded in the rules of procedure which govern the judiciary. For example, the Civil Procedure Code prescribes a detailed procedure under which the Defendant has the right to reply to the Plaint; both sides have the right to inspect the documents relied upon by the other side and both sides have the right to crossexamine one anothers witnesses. The judgment must give reasons for the decision. In the case however, of quasi-judicial or administrative Tribunals or bodies, the common law has laid down some basic principles which such bodies must follow. If there is any substantial departure from these principles of natural justice, the decision can be challenged and set aside through the judicial process. One of the well known enunciations of the principles of natural justice is in the case of Ridge vs. Baldwin (1963) 2 AER 66 (HL). In that case Lord Hudson observed: No one, I think, disputes that three features of natural justice stand out. (i) The right to be heard by an unbiased Tribunal, (ii) The right to have notice of charges of misconduct, (iii) The right to be heard in answer to that charge.

5) Maxim -Audi Alteram Partem -Latin; literally 'hear the other side'. The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side') one of the two fundamental principles of natural justice. The maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person. The learned trial judge, would not allow the Plaintiff APPELLANT Andre Murray to address the Court and explain why the Court should not make the decision based on the new information proposed, and address why that reasoning was flawed based on the facts of the very case before the Court.

The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra, in not allowing the Plaintiff (INTENDED APPELLANT) Andre Murray to address the fact that the Tentative purchaser, 501376 N.B. Ltd, a body corporate at the Mortgage Sale, had caused a contract to be signed,

Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009 which specifically stated that the purchasers would honor all Liens in full on the date of delivery of the Deed to such purchaser.

Furthermore, The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem, vide supra, in the present case, by not allowing the Plaintiff (INTENDED APPELLANT) Andre Murray to draw the learned trial judges attention to the fact that the source of the pivotal information which the learned trial judge relied upon, was not sworn to under oath, possibly said in error and was hearsay information sourced from the same Hugh Cameron acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed a Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, dated July 16, 2009, regarding the very same property, which stated the purchaser agrees to pay any outstanding ..Liens,, at paragraph 10 reproduced in full below: 10. All real property taxes, water rates. liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser. While the Mechanics Lien is in place, the Purchaser, 501376 N.B. Ltd, a body corporate has a contractual obligation to satisfy all liens, associated and registered against the Marshall Street Property. Maintaining the Lien maintains the remedy that may be available to the Appellant (Plaintiff in that matter).

The Learned Trial Judge failed to apprehend that the sale of the property, pursuant to the July 16, 2009 Auction, has not closed, therefore the conclusion that there would be no funds left over to satisfy the Lien is an error in law and a misapprehension of the facts before the Court. As stated by the Plaintiff at the June 10, 2010 hearing, the property may be placed back up for auction for a second time, resulting in a higher sale price, which could potentially satisfy the Lien.

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.

The learned Trial Judge erred in law in not recognizing the principal of law expressed in the maxim nemo judex in causa sua debet esse, vide supra , the learned trial judge relied upon information which had a reasonable apprehension of bias, was not sworn to under oath, possibly said in error and was hearsay information sourced from the same Hugh Cameron acting as Agent for Purchaser, 501376 N.B. Ltd, a body corporate, who signed a Bidding Papers & Terms of Sale AGREEMENT TO PURCHASE, on behalf of his client dated July 16, 2009, regarding the very same property, which stated the purchaser agrees to pay any outstanding ..Liens,, at paragraph 10 reproduced in full below: 10. All real property taxes, water rates. liens, charges and/or local assessments, if any, shall be for the account of the purchaser and the purchaser agrees to pay any outstanding real property taxes, water rates, liens, charges and /or local assessments in full on the date of delivery of the Deed to such purchaser. The trial will be rendered unfair if the words or actions of the trial judge give rise to a reasonable apprehension of bias to the informed and reasonable observer. Let us review R. v. R.D.S., 1997 CanLII 324 (S.C.C.), [1997] 3 S.C.R. 484 found at the following: http://www.canlii.org/en/ca/scc/doc/1997/1997canlii324/1997canlii324.html for an elaboration of this principle at paras. 109-120, inclusive. . (v) Judicial Integrity and the Importance of Judicial Impartiality 116 Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joy coupled with a realization of the onerous responsibility that goes with the office. The taking of the oath is solemn and a defining moment etched forever in the memory of the judge. The oath requires a judge to render justice impartially. To take that oath is the fulfilment of a lifes dreams. It is never taken lightly. Throughout their careers, Canadian judges strive to overcome the personal biases that are common to all humanity in order to provide and clearly appear to provide a fair trial for all who come before them. Their rate of success in this difficult endeavour is high. 117 Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. See R. v. Smith & Whiteway Fisheries Ltd. 1994

CanLII 4057 (NS C.A.), (1994), 133 N.S.R. (2d) 50 (C.A.), and Lin, supra. This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with cogent evidence that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias. See Smith & Whiteway, supra, at para. 64; Lin, supra, at para. 37. The presumption of judicial integrity can never relieve a judge from the sworn duty to be impartial. 118 It is right and proper that judges be held to the highest standards of impartiality since they will have to determine the most fundamentally important rights of the parties appearing before them. This is true whether the legal dispute arises between citizen and citizen or between the citizen and the state. Every comment that a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges must be conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties. This must be a cardinal rule of judicial conduct.

Conclusion For these reasons, The Appellant requests of the Court to allow the appeal, set aside the judgment of the Court of first instance under Rule 62.21(7) and grant the Continuance of the Mechanics Lien Action under Rule 62.21(1) pursuant to section 52.1 (1) (b) of the Mechanics Lien Act The appellant requests an Order that the Defendant /Respondent pay costs of the Continuance Motion, (Court File Number: F/C/104/09) heard June 10th, 2010 before the Court of Queens Bench of New Brunswick Trial Division Judicial District of Fredericton, because the Solicitor for the Defendant in that matter should have known better than to go along with the Courts direction, and the Solicitor for the Respondents action contributed to the injustice visited upon the Appellant and further to that point, the RESPONDENT pay costs of the within Notice of Appeal for again contributing to causing the Appellant to be required to file this Appeal in the first place and also because of not adhering to the rules of Court in the process.

Reply to Respondents Submission In review of the Respondent submission submitted the 20th day of October, 2010, the Appellant wishes to address certain positions claimed by the Respondent. At Paragraph - 3 - The Respondent Claims On or about July 16, 2009, the property subject to the lien was sold at auction by the Royal Bank of Canada pursuant to the terms of a mortgage held between RBC and the Respondent. The Appellant wishes to point out the fact that the Mortgagee deed was offered for sale at auction, a deposit was accepted, but the sale has not closed, so in effect, the sale has not yet legally occurred. Either party could back out of the contract and the Mortgagee deed could be placed back up for sale or auction. At Paragraph - 7 - The Respondent Claims On or about November 26, 2009, the Respondent filed and served upon Mr. Murray a Demand for Particulars. The alleged Service of Respondents Demand for particulars, upon the Appellant did not in fact occur at any time. At Paragraph - 14 - The Respondent Claims In other words, the amount that Mr. Murray could acquire by virtue of his claim for lien would have been, at that time, $23. [see Transcript at page 10 line 21, page 11 lines 10 - 20]. How much money will be left over after the sale closes is unknown at this time. The fact is, that no one yet knows how much money will be left over after the sale closes, because the sale has not yet closed, that figure will only be known in the future, and to say otherwise is pure conjecture. At Paragraph 17 At Paragraph - 20 The Respondent Claims The Appellant was solely responsible for not proceeding at a more appropriate pace to have the matter set down for trial. The reason that the Plaintiff did not set the matter down for discovery and if eventually necessary, a trial, is because of the actions of a third party, namely the Royal Bank of Canada and 501376 N.B. Ltd, a body corporate, who have not consented to allowing the plaintiff to enter 29 marshal street property to collect the documents necessary to move the Mechanics Lien Action forward. The plaintiff is actively pursuing remedy to access the 29 Marshal street property, by Motion to Rescind the standing ex parte Orders, by the Queens Bench Trail Division, Judicial district of Moncton, to vacate 29 Marshall street. Unfortunately these efforts have been frustrated, by many requests for adjournments on the matter, by the Solicitor for the Royal Bank of Canada and 501376 N.B. Ltd, a body corporate. All of which was included in the Plaintiffs brief presented to the Learned Trial Judge, for the June 10, 2010 Motion for a Continuance.

At Paragraph 26 -The Respondent Claims In the Court below the Appellant provided no Affidavit evidence to explain why he was unable to have the matter set down for trial as required. Any explanation he could have given had to be in his affidavit evidence. This the Respondents Claim is erroneous. The Appellant, did in fact provide affidavit evidence to the learned Trail Judge, which explained the reasons for the delay in moving action forward (Please see Affidavit of Andre Murray, Court of Queens Bench Fredericton, N.B. Date Stamped Received and Filed, April 20, 2010, Appeal Book page 45 -51) and the cause of the delay being a third parties action, namely the Royal Bank of Canada and 501376 N.B. Ltd, a body corporate, and the steps that the Appellant (Plaintiff in that matter), had taken thus far to correct the situation. At Paragraph 27 The Respondent Claims The Appellant did not set out any cogent reasons for his delay. This erroneous statement was already addressed above, in reference to paragraph 26, The Respondent explained the reasons for the delay in moving action forward by affidavit evidence. At Paragraph 27 The Respondent Claims For the Respondent, the prejudice to her arises from having to continue to be a party to a mechanics lien action even though she no longer has control over the title to the property against which the lien was held. Since the sale has not yet closed, this situation may yet change, and legally speaking the Respondent is still on title, therefore is burdened with the responsibility of answering the presented claims. At Paragraph 28 The Respondent Claims Mr. Murray had done nothing between the filling and service of his action and the filing and service of the Motion below. The Plaintiff believed there was no point in, incurring the cost associated with arranging a discovery to discover documents, which where not yet back in the possession of the Plaintiff, the subject contract documents, where absolutely necessary to move the action along. Furthermore, the Appellant Served on the Respondent a Lien holders Right to Information Request, pursuant to Section 32(1), section 32(2) of the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 in a further attempt to acquire the relative documents necessary to move the action forward. (Please see Lien holders Right to Information Request, Court of Queens Bench Fredericton, N.B. Date Stamped Received and Filed, May 31, 2010, Appeal Book page 100 - 102) At Paragraph 29 The Respondent Claims It was the Respondents contention below that the Appellant should have been prevented from seeking a discretionary remedy from the Motions Judge in light of his failure/ refusal to have complied with the Rules with regard to the Particulars demanded. The Plaintiff was not served the Demand for Particulars, and furthermore, did and had followed all the relevant Rules of Court. The Motions Judge did not raise this as an issue, in contemplation of the Learned Trail Judges decision. At Paragraph 31 The Respondent Claims The Appellant does not challenge the accuracy of the information provided in answer to the Courts queries. The appellant does challenge the accuracy of the information, because the Appellant has not seen

affidavit evidence attesting to theses claimed values. The sale value of the subject property is not yet known; as a consequence no one can yet know the final value difference between the property sale price and the amount outstanding on the mortgage. At Paragraph 33 The Respondent Claims The Respondent says that the Motions Judge is an experienced jurist, and as a result, a reviewing Court ought to be able to take judicial notice that she would be well aware of the need to protect against an unfair hearing. The Appellant contends that, experienced or not, jurist make mistakes, and it is the capacity of the Court of Appeal to review these alleged mistakes and make a decision on the matter. The Appellant further notes, if the Motions Judge is an experienced jurist, the Court should have be well aware of the need to protect against an unfair hearing and should have acted accordingly. At Paragraph 37 The Respondent Claims Even if this Court finds there to have been a breach of the rules of procedural fairness, the breach would not touch upon the appropriateness of the Motions Judge determining that she would not exercise her discretion to grant the continuance sought by the Appellant. To expend the resources of the justice system for a claim worth $23. is a questionable expenditure and considered to be a waste of time, in the circumstances of this case. The Appellant believes that the Respondent should have consented to the Continuance in the first place as the Defendant was requested well before the Court hearing date as scheduled. The Appellant believes that it is worth the Courts time, and in the interest of Justice, to protect a possible $80,000 lien that may yet be realized. The ultimate value that the claim will be, is not yet known, and for the Respondent to maintain that the sale is closed or to even suggest that the sale of the Investment Instrument Mortgage is sold is erroneous. The resources of the justice system could have been more appropriately used, had a continuance been grant and a breach of the rules of procedural fairness would not have been experienced, necessitating the judicial review and expense of the Court of Appeal. In the first place the Defendant - Respondent should have immediately consented to a Continuance when this was requested by the Plaintiff, this request was well in advance of and before the June 10, 2010, hearing of the Motion from which an Appeal may be allowed. There would have been no need to require the services of the Court of Queens Bench, and both the Respondent and the Appellant would have been saved the expense and time required to pursue that unnecessary path. Had the Learned Trail Judge, granted a Continuance at the June 10, 2010 Hearing, based on the presented material, and acted according to the rules of procedural fairness, there would have been no need to require the services of the Court of Appeal, and both the Respondent and the Appellant would have been saved the expense and time required to pursue this path. There is nothing further at this point.
27.09 Striking Out a Pleading or Other Document The court may strike out any pleading, or other document,

or any part thereof, at any time, with or without leave to amend, upon such terms as may be just, on the ground that it (a) may prejudice, embarrass or delay the fair trial of the action, (b) is scandalous, frivolous or vexatious, or (c) is an abuse of the process of the court.

At Paragraph - 20 At Paragraph 26 At Paragraph 27 At Paragraph 27 At Paragraph 28 At Paragraph 29