Court of Appeal File Number: __________ (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)

NOTICE OF APPEAL (FORM 62B)

The appellant appeals to the Court of Appeal from the decision (or order) the Honourable Madame Madam Justice J. L. Clendening, Queens Bench Trial Division, Judicial District of Fredericton, Dated the 24th day of June, 2011. The appellant asks that the decision (or order as may be) be reversed (or as may be). Or The appellant asks that the decision (or order as may be) be varied (set out the nature of the variance requested). Or

The appellant asks that the decision (or order as may be) be set aside and that a new hearing or trial be held (or as may be). The appellants grounds for this appeal are as follows: (set out the grounds clearly but briefly)

Hearing: February 14, 2011. 1. The Appellant relies, that Natural Justice requires administrators adhere to a fair decision-making procedure. There Appellant contends there are two primary rules of natural justice: a. The hearing rule is that people who will be affected by a decision must be given an opportunity to express their views to the decision maker. b. The bias rule is that the decision maker must be impartial and must not give cause for reasonable apprehension of bias to be perceived. Justice must not only be done, but must be seen to be done. Hearing Rule 2. 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'). This Maxim, in law means: no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person. In this matter the learned trial judge, interrupted Plaintiff having shortly started oral submission, The Honorable Court further Ordered the Plaintiff to proceed

with a oral submission to pleasure of The Honorable Court, consisting only of specific evidence, as laid out by the Honorable Court.

3. The Learned Trial Judge unreasonably interrupted Plaintiffs oral submissions thereby continuously repeating the Honorable Courts position, a constant position indicative of the Honorable Courts disbelief of the Plaintiff`s essential position therefore and thereby causing an unfair trial as the Plaintiff was not permitted to be heard according to the Plaintiff`s own conscience; furthermore, the Honorable Court set the pace determining what the Plaintiff will be permitted to place on the record and disallowing the Plaintiff to speak to substantive material other than that which interested the Honorable Court.

4. The learned trial judge erred in law in failing to consider material, relevant evidence and argument as attempted to be presented by the Plaintiff in that matter, at the February 14, 2011 Hearing (Appellant in this matter). No person should be condemned, punished or have any property or legal right compromised by a Court of Law without having heard that person, in this case the Appellant. The Learned Trial Judge failed to demonstrate a desire to comprehend the facts and arguments as presented by the Appellant and appeared instead only interested to pursue the arguments and assertions as presented by the Respondent.

5. The assertions of the facts as made by the Learned Trial Judge, at the February 14, 2011 Hearing revealed, the learned trial judge erred in law, that assertions of the facts as made by the Learned Trial Judge are unreasonable, based on a material misapprehension of the evidence, and

or tainted by a failure to consider material, relevant evidence and argument as attempted to be offered by the Appellant. Bias Rule 6. 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 latin for no person can judge a case in which he or she is party or in which he/she has an interest which underlies the doctrine of reasonable apprehension of bias. The Learned Trial Judge failed to understand the facts and arguments as presented by the Appellant and instead pursued only the arguments and assertions as presented by the Respondent, this predisposition of the Learned Trial Judge toward a particular result, is such that a reasonable apprehension of bias is raised.

7. With respect to reasonable apprehension of bias, the Appellant relies on the statements made by the Learned Trial Judge at the February 14, 2011 Hearing and also the Decision as rendered June 24, 2011. The Appellant alleges these verbalized references of the Learned Trial Judge demonstrate erroneous views which are evidently strongly advocated by of the Learned Trial Judge therefore slanting a particular view concerning the purposes of the Mechanic Lien Act, R.S.N.B. 1973, c. M-6, and its application, furthermore, demonstrated a unyielding predisposition toward a particular result such that a reasonable apprehension of bias is raised. 8.The duty of the Learned Trial Judge to the Legal process by which an arbiter or judge reviews evidence and argumentation including legal

reasoning set forth by opposing parties or litigants to come to a decision, which determines rights and obligations between the parties; therefore, to act fairly includes the duty to provide procedural fairness to the parties. As a result of the following, the Courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness, the conduct of the Court, has been measured against a standard of reasonable apprehension of bias. The Appellant contends that circumstances exist, such as is abundantly evidenced in the Hearing of this matter, sufficiently quantitatively unrelenting that from which a reasonable man would think it likely and or probable that the Learned Trial Judge, was favoring one side unfairly. Written Decision June 24, 2011. 9. The Appellant asserts that the trial judge made a number of material errors in law while arriving at Decisions in respect of in the first place Should the Court exercise its discretion and order a continuance under the Mechanic Lien Act, R.S.N.B. 1973, c. M-6 (Act) for Murray? and in respect of in the send place the Courts exercise of discretion regarding costs.

10. The learned Trial Judge erred in law, in irregularly applying the Courts Discretion. The Appellant contends, that The Learned Trial judge did display abuse of discretion, which is an adjudicator's failure to exercise sound, reasonable, legal decision-making. The Learned Trial Judge instead rendered a decision which is unsupported by the evidence and clearly based on erroneous findings of material fact.

11. The learned trial judge erred in law in not keeping with the general direction as found expressed in the New Brunswick Rules of court Rule 1.03 (2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits, by not allowing the Continuance, based on the facts of the subject case, which the Appellant contends is the only way to secure a just, least expensive and most expeditious determination of this Mechanics Lien proceeding based on its merits.

12. The trial judge erred in law in not ordering a Continuance based on the submitted Affidavit evidence, offered argument and circumstances of the case. The duty of the Court is to ensure, as much as is possible, that justice is done, it is most unfair to deprive the Appellant of the opportunity to have the matter heard on its merits, absent a compelling reason for same.

13. The Appellant could not schedule a meaningful Discovery pursuant to the Mechanics Lien Act without being in possession of the relevant Contract documents, nor if necessary, could the Appellant reasonably set the matter down for Trial again without being in possession of the relevant Contract documents without again evidence of the Merit of the Appellants case. The result (without the Mechanics Lien Contract documents), in effect would assure lack of Discovery, further a prejudice for the both Respondent and Appellants Cause as no remedy could possibly be discovered without relevant evidence of documentation. Appellant argued that to do justice in a particular case requires a

balancing of the prejudice to both parties resulting from the Courts decision to grant or refuse the Appellants Application.

14. The Appellant asserts that as a general principle, the Rules of Court should not be used to prevent the delivery of rights; nor should they be used to preclude the enforcement of claims, which are derived from the substantive law. Moreover, a Court should interpret and apply the Rules of Court to ensure, to the greatest extent possible, that there is a final determination, unless the application of the rules would result in a serious prejudice or injustice. In this case, granting the continuance would have preserved the Status quo, maintained the parties standing at the time to the prejudice of neither Party and would have allowed the parties an opportunity to resolve the matter fairly.

15. By dismissing the Appellants Application for a Continuance, the Court prevented a just determination, further, prevented the delivery of rights, and precluded the enforcement of the claims of the Parties, which are derived from the substantive law, causing extreme prejudice to the Appellant, and in effect unjustly granting a decision in favor of the Respondent who has not yet proven the merit their cause.

16. The factual findings made by the Learned Trial Judge should not be accepted, because the Appellant can show that they are unreasonable, based on a material misapprehension of the evidence, and or tainted by a failure to consider material, relevant evidence. The effect is significantly unjustified prejudice and or injustice to the Appellant.

17. The erroneous factual findings and subsequent rulings made by the Learned Trial Judge which demonstrated Material Misapprehension of the evidence are regarding matters as follows: Setting the matter down for Trial Moving the matter along Reason for the Delay Prejudice Ownership of Property Mechanics Lien Documents Recovery of Documents

18. The learned Trial Judge erred in law in not recognizing the principal of law expressed in the maxim nemo judex in causa sua debet esse 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 only accepted argument and evidence which favored the Respondents position, further, the learned Trial Judge made blatantly erroneous statements based on and consistent with this earlier received erroneous information, contrary to the facts of the case. Impartiality is a principle of Justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons.

19. The Learned Trial Judge, demonstrated subjectively that she did not appreciate the argument advanced by the Appellant, consequently failed or refused to understand the legal principles relied on, in support of the Appellants argument, further, the Learned Trial Judge failed to review and understand the relevant evidence. The law has recognized for more than a century that a COURT OF APPEAL would interfere with the

exercise of the discretion of a trial judge when "the trial judge was manifestly wrong" or "substantial injustice" or "serious injustice would result", which the Plaintiff claims is evident in this case.

20. Manifest Abuse of Discretion is demonstrated when the Courts Discretionary Decision is unsupported by the evidence choosing instead to arrive at erroneous finding of a material fact, the Appellant claims that the Learned Trail Judge has demonstrated Manifest Abuse of Discretion, in not granting the Continuance as requested, and instead dismissed the application for a decision in favor of the Defendant. In these circumstances and it would be a disservice to the administration of justice to allow this decision to stand.

21. The Leaned Trail Judge did demonstrate Omissions in reason for judgment, which amount to material error if they give rise to the reasoned belief that the trial judge must have forgotten, ignored or misconstrued the evidence in a way that affects the Courts conclusions, such as in this case.

22. Natural justice requires that administrators adhere to a fair decisionmaking procedure. There are two primary rules of natural justice. The hearing rule is that people who will be affected by a decision must be given an opportunity to express their views to the decision maker. The bias rule is that the decision maker must be impartial and must display no reasonable apprehension of bias. Justice must not only be done, but must be seen to be done.

23. The learned Trial Judge erred in law in not recognizing the principal of law expressed in the maxim nemo judex in causa sua debet esse which underlies the doctrine of "reasonable apprehension of bias". The Appellant contends and will demonstrate that a reasonable apprehension of bias arose by the fact that the learned Trial Judge only accepted argument and evidence which favored the Respondents position, further, made obviously erroneous statements based on this erroneous information, contrary to the facts of the case. Impartiality is a principle of Justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons.

24. The Appellant contends that a reasonable apprehension of bias arose by the fact that the learned Trial Judge only accepted argument and evidence which favored the Defendants position, further the learned Trial Judge made obviously erroneous statements within the decision which reasonably must be based on incorrect information, contrary to the facts of the case.

COSTS 25. As the award of costs, is considered to be a matter within the discretion of the Trial Judge, the Appellant will demonstrate that a grossly unfair allocation amounts to an error of principle, further, that the exercise of the Trial Judges discretion in this matter was affected by error in principle and or by misapprehension of the facts.

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26. The Appellant has to date, without exception, adhered to the Rules of Court and all the requirements in pursuance of the Mechanics Lien Act.

27. The Appellant, in argument, provided and contained within The Plaintiffs SUBMISSION 2, a 30 page presentation titled Should the Defendant pay costs of the within Motion? within SUBMISSION 2 Appellant requested an Order that Defendant pay, forthwith, costs of the subject Motion consequential of the Defendant`s blatant, non-compliance with the Rules of Court. The Appellant, in this matter, has provided the Honorable Trial division Court with ample evidence and demonstrable history of the Defendant (Respondent) non compliance with the Rules of Court, furthermore, the Appellant relies upon the Respondents adherence 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 requested of the Court of first instance, to consider the above when ruling as to costs of the subject Motion.

28. Furthermore the Appellant provided the Honorable Court with a itemized list of Rules of Court which the Respondent has a history of non compliance with, inter alia, Rules of Court, Rule18.02, Rule 18.03, Rule 20.01, Rule 20.02, Rule 27.03, and Rule 27.04.

29. Appellant provided a letter to the Respondent requesting Documents pursuant to the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 32(1), Dated May 31, 2010, although the Act compels the Respondent to respond in accordance with the following the Appellant will demonstrate

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the lack of the Respondents compliance to the Demand for information which was never replied to or even acknowledged.

30. Appellant (as Plaintiff) provided argument that Costs should be awarded to the Appellant. It follows that lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, lay litigants, by foregoing remunerative activity, incurred an opportunity cost. It is self evident the Appellant did expend considerable time and energy preparing for the first Hearing June 10, 2010 (no cost awarded) and subsequent successful Court of Appeal Decision (cost to be dealt with in subsequent lower Court Hearing) in favor of the Plaintiff /Appellant reversal thereof the first Hearing June 10, 2010 of which included Record on Motion Book 1 and the subsequent Record on Motion Book 2, The Plaintiffs Submission Book 1(90 pages) and The Plaintiffs Submission Book 2 (290 pages), including 32 listed authorities, a Brief for the Courts convenience and an Oral presentation which the Plaintiff was not allowed to present on the Honorable Court Hearing of the matters February 14, 2011. The Appellant provided substantial affidavit evidence with exhibits, to substantiate the Plaintiffs argument and claims. In contrast the Respondent allegedly provided nothing other than a Brief since the first Hearing June 10, 2010 and nothing new for the second Feb 14, 2011 Hearing. Appellant contends: no work equals no merit, further, equals no costs.

31. Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The law never works an injury, or does a wrong. The Appellant claims that the

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exercise of discretion of the Learned Trial Judge in regards to Cost award to the Defendant is manifestly without merit, therefore excessively disproportionate, therefore, unbalanced substantial injustice and serious injustice would result if the Cost award is allowed to stand.

32. Manifest Abuse of Discretion is when the Courts decision is unsupported by the evidence and clearly on a erroneous finding of a material fact, the Appellant claims in this matter that the Learned Trail Judge has in this case demonstrated Manifest Abuse of Discretion, in the inappropriately excessive cost awarded the Defendant, moreover the unjust awarding of undeserving cost, in the amount awarded in favor of the Respondent in these circumstances; further, Appellant contends, it would be a disservice to the administration of justice to allow this Award of Costs to stand.

DATED at Fredericton New Brunswick, this . . . . day of . . . . . . . . . . , 2011.

______________________________ ANDRE MURRAY APPELLANT (Plaintiff ) ANDRE MURRAY Address for service within New Brunswick: 31 Marshall Street Fredericton, N.B. E3A 4J8 E-mail address: andremurraynow@gmail.com

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Solicitor for RESPONDENT (Defendant) Betty Rose Danielski E. Thomas Christie, CHRISTIE LAW OFFICE Suite 306, 212 Queen Street Fredericton, New Brunswick Canada E3B 1A8 Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

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