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Court of Appeal File Number: 142 -11- CA (Court File Number: M/C/0642/09) IN THE COURT OF APPEAL OF NEW BRUNSWICK

BETWEEN: ANDRE MURRAY INTENDED APPELLANT (Defendant) -andROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate, INTENDED RESPONDENT (Plaintiffs)

Intended Appellants Submission ADDENDUM BOOK 2 Filed by self represented INTENDED APPELLANT ANDRE MURRAY

Intended Appellant (The Defendant) Self Represented Andre Murray 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Telephone Number: E-mail address: andremurraynow@ gmail.com

Intended Respondent (The Plaintiffs) George LeBlanc Solicitor of Record for ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate Name of solicitors firm: Cox & Palmer, Address for service: Blue Cross Centre, Suite 502, 644 Rue Main Street, Moncton NB E1C 1E2 E-mail address: gleblanc@ coxandpalmer.com Telephone number: Main 506 856 9800 Telephone number: Direct 506 382 4529 Fax 506 856 8150 Web coxandpalmer.com

Intended Appellants Submission 2 An index of the contents; A. October 21, 2011, Decision Order 1, Permission for numbered Company to withdraw from Action_______1

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

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

D. October 21, 2011, Decision Order 4, Rank of Priority to Possession of the Premises Between a Mortgagee and a Tenant_________________________________ 115

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

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

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

Legal Maxim, The welfare of the people is the supreme law. Broom's Legal Maxims(max. 1-10), also Bacon's Maxims (reg. 12) Maxim - Longa possessio parit jus possidendi, et tollit actionem vero domino. Long possession produces the right of possession, and takes away from the true owner his action. Co. Litt. 110. Maxim - Possession is nine-tenths of the law. Decision Order 1 Numbered Company seeks Permission of Honorable Court to withdraw from this Action

1.

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

the facts before the Court, and misapprehending the application of Rules of Court, Rule 25.01 and Rule 25.03 regarding of Intended Respondent 501376 N.B. Ltd. a body corporate where it seeks permission to withdraw from the subject Action file Number M/C/0642/09. Abundant evidence had been provided the Honorable Court hearing the herewithin subject matter that a CONSTRUCTIVE NOTICE including a Mechanic Lien also a NOTICE OF ACTION with STATEMENT OF CLAIM, further, including the Certificate of Les Pendens all of the herewithin listed documents were Registered with SERVICE NEW BRUNSWICK Land Titles Office no later than April 2009. despite this NOTICE and or Put on Notice Respondent 501376 N.B. Ltd. a body corporate having admitted and or confirmed the fact that they were reasonably aware of these circumstances of Intended Appellant Andr Murrays therefore, establishing Intended Appellant Andr Murrays evident equity investment; despite this fact and or perhaps because of this evident equity investment in property subject of the MORTGAEE DEED the Respondent 501376 N.B. Ltd. a body corporate choose to take advantage of an opportunity to profit at the expense and or loss of Intended Appellant Andr Murray, it

appears the Intended Respondent 501376 N.B. Ltd. a body corporate was happy to own the Mortgagee Deed, which it had successfully won at the Auction bid for at the Mortgage Auction, together with their only conditional which was the object of eliminating the Intended Appellant Andr Murray as a Lien holder Registered against the Title, which in Appellant Andr Murrays opinion is an unscrupulous act of manipulation of the legal system, further an act intended to consciously abscond, typically to avoid detection of seizing Intended Appellant Andr Murrays equity investment in subject property. 2. Intended Respondent 501376 N.B. Ltd. a body corporate was evidently

not satisfied with having only purchased the INVESTMENT INSTRUMENT called a MORTGEE DEED at Auction July 16, 2009, and instead attempted to assist and or work together with the ROYAL BANK of CANADA (Mortgagee) for a period of not less than one year to cause Vacant possession of the Residential Property, subject of the Mortgagee Deed; the benefit which the Intended Respondent 501376 N.B. Ltd. a body corporate hoped to realize should Vacant Possession of the subject Residential Property be accomplished is as follows: the POWER of SALE provisions in pursuance with the NEW BRUNSWICK PROPERTY ACT would eliminate all equity and or claims of equity held by Intended Appellant Andr Murray. 3. Since the Intended Respondent 501376 N.B. Ltd. a body corporate

eventually realized that their goals of extinguishing the Registered Mechanic Lien from the Title, thereby, obtaining the equity of Intended Appellant Andr Murray further clearing the subject Property Title of Registered encumbrances the Intended Respondent 501376 N.B. Ltd. a body corporate has consequentially been attempting to withdraw without costs.

4.

In fact as any one must reasonably recognize that Intended Respondent

501376 N.B. Ltd. a body corporate having confessed prior to subject Mortgagee Deed Auction further to their performance of DUE DILAGENCE, Respondent 501376 N.B. Ltd. a body corporate realized the major encumbrances Registered against said subject property are also held by the Residential Leasehold Tenant furthermore, must therefore have realized that the act of attempting to purchase the MORTGAEE DEED by itself represented no threat of equity loss to the holder of the CONSTRUCTIVE NOTICE Andr Murray unless Intended Respondent 501376 N.B. Ltd. a body corporate attempted to enforce the POWER OF SALE provisions in pursuance of the NEW BRUNSWICK PROPERTY ACT alternatively speaking for the INTENDED Respondent 501376 N.B. Ltd. a body corporate acting in attempting to accomplish the above mentioned VACANT POSSESSION, therefore, could only mean that the Intended Respondent 501376 N.B. Ltd. a body corporate intended to deprive Intended Appellant Andr Murray of his equity investment. 5. Please note that VACANT POSSESSION was not legally possible if

properly pursued under Auspices of the government appointed Chief Rentalsmen who is to administer all matters of Residential Tenancy in pursuance with the RESIDENTIAL TENANCY ACT of NEW BRUNSWICK further, as the LEGISLATIVE ASSEMBLY of NEW BRUNSWICK had in their wisdom found imperative to protect all Residential Tenants from harm of such CARPETBAGGER practices (as herein described) therefore, consequentially, to one degree or another, victimizing Residential Tenants of NEW BRUNSWICK the LEGISLATIVE ASSEMBLY of NEW BRUNSWICK issued the RESIDENTIAL TENANCY ACT as constituting the grammatical mood that expresses the will to influence the behaviour of another

in such circumstances as these by including the words NOTWITHSTANDING all others. 6. In fact had Intended Respondent 501376 N.B. Ltd. a body corporate

respected the herewithin above mentioned CONSTRUCTIVE NOTICE inter alia and been therefore satisfied with having obtained a FINANCIAL INVESTMENT INSTRUMENT the MORTAGEE DEED without having to deprive Andr Murray of his properly filed Mechanic Lien inter alia protection of his investments for that reason the NOTICE OF ACTION filed September 18, 2009 would never have become necessary and or would never have occurred except for their own unrepentant greed. For this their aggression against Andr Murray they dare to insist upon costs furthermore Intended Respondent 501376 N.B. Ltd. a body corporate deny all responsibility for their having initiated this entire scenario. 7. The September 18, 2009 initial Notice of Action and Statement of Claim

filed by the Intended Respondents, against Andr Murray as Defendant was alleged to have been motivated to and or claimed to be requiring VACANT POSSESSION of residential property associated with the Financial Investment Instrument a Mortgage sold at Auction Sale which occurred July 16, 2009 and the intention of the Mortgagee Royal Bank of Canada to transfer a Mortgagee Deed, to Intended Respondent 501376 N.B. Ltd. a body corporate, who was the alleged tentative successful bidder at said July 16, 2009 Mortgage Auction Sale. 8. It becomes clear that Intended Respondent 501376 N.B. Ltd. a body

corporate as successful bidder at said July 16, 2009 Mortgage Auction Sale had an intended goal of Vacant Possession of the subject Residential Property of which the mortgage is registered against therefore Intended Respondent

501376 N.B. Ltd. a body corporate wasted no time in allegedly posting NOTICE TO VACATE at 29 Marshall Street Fredericton same day as the subject MORTAGE AUCTION SALE ended July 16, 2009. 9. September 18, 2009, 501376 N.B. Ltd. a body corporate having

successfully July 16, 2009 at Auction bid for ownership of a Financial Investment Instrument (Mortgage) did subsequentially together with ROYAL BANK of CANADA file Notice of Action and Statement of Claim, for Court Order inter alia to vacate the Intended Appellant from 29 Marshall Street, Fredericton, which resulted in an impugned attempt to cause VACANT POSSESSION of the property relative to Property Title and the Mortgagee Deed registered against same. 10. Please note Intended Respondent 501376 N.B. Ltd. A body corporate initiated the entire conflict from the beginning and could have been avoided had Intended Respondent 501376 N.B. Ltd. A body corporate respected the CONSTRUCTIVE NOTICE inter alia therefore registered against subject property Title for which the Mortgage had been issued. 11. Further complicity between the Intended Respondents occurred in the misrepresentation of their so called facts as can be found in the September 18, 2009 STATEMENT of CLAIM as attached to the NOTICE of ACTION please see: paragraph 8 : excerpt reads: Pursuant to the bidding papers and terms of sale, the property was due to close within 20 days from the date of the sale, however, the plaintiffs have been unable to complete the sale of the property as a result of the defendants refusal and or neglect to vacate the property. 12. This above provided subject excerpt from the September 18, 2009 STATEMENT of CLAIM paragraph 8 is an erroneous position in logic and

obfuscation of the facts as the facts relate to the word property therefore the NOTICE OF SALE as advertised was for a property called a Mortgage and did not offer the sale of a property other than what could be reasonably comprehended to be the only property therefore referred to which was the Financial investment instrument called Mortgage. 13. Please consider that had the Intended Respondent 501376 N.B. Ltd. a body corporate, attended that subject July 16, 2009 Mortgage Sale, and been satisfied to possess the Financial Investment Instrument property called mortgage, than a MORTAGEE DEED would have been sufficient, regrettably it appears that the Intended Respondent 501376 N.B. Ltd. a body corporate was integral to beginning this subject lawsuit, as they intended to deprive the Intended appellant of his registered lien resulting in the loss of all Andr Murrays equity to the financial gain of Intended Respondent 501376 N.B. Ltd. a body corporate. A gain obtained by less the genuinely sincere means. 14. Greed motivated Intended Respondent 501376 N.B. Ltd. a body corporate, to attempt to abscond with the equity of the intended Appelant in this case moreover there has been abundant evidence providedto the Honorable Court of first instance that this was the case for that reason to allow the Intended Respondent 501376 N.B. Ltd. a body corporate to withdraw without costs is an error in law as a misapprehension of the facts as provided where not considered by the honourable Court. 15. The Intended Appellant did not agree or consent to the withdrawal of the numbered Company (Intended Respondent 501376 N.B. Ltd. A body corporate), but should the Court grant as requested that the numbered company

be able withdraw then it is only fair that they pay costs according to Rule 25.03 of the Rules of Court. 16. Rules of Court Rule 25.01 and Rule 25.03 is reproduced as follows: 25.01 Discontinuance by Plaintiff A plaintiff may discontinue his action against a defendant, either in whole or in part (a) at any time before the close of pleadings, (b) after the close of pleadings, with leave of the court, or (c) at any time, with the written consent of all parties by (d) filing with the clerk a Notice of Discontinuance (Form 25A), and (e) serving a copy of the Notice of Discontinuance on all parties who have been served with the Statement of Claim. 25.03 Costs on Discontinuance or Withdrawal A party wholly discontinuing an action or wholly withdrawing his Statement of Defence against another party shall pay the costs of the other party to date, including the costs of any cross-claim or third party claim, unless the court orders or the parties agree otherwise. 17. The Court did break with the rules of Court and judicial custom to not award the Intended Appellant with costs associated as a result of the evident significant role that which was played by Intended Respondent 501376 N.B. Ltd. a body corporate prior to requesting that they may withdraw from the action. 18. In New Brunswick Federation of Snowmobile Clubs et al. v. New Brunswick All-Terrain Vehicle Federation et al., Summary Judgment Application, 2006 NBQB 149 (CanLII), Justice Peter S. Glennie awarded costs

against a Plaintiff who was discontinuing its action against personal Defendants at paragraph 2 and paragraph 33 as follows: (http://canlii.ca/s/szy4) [2] At the commencement of the hearing of this motion, Counsel for the Plaintiff advised the Court that the Plaintiff was discontinuing its action against the personal Defendants, namely Tim Clarke, Larry Steele, Fred Hicks, Cory Elliott, Scott Smith, Jeff Brewer, Mike Gionet, Gary Moore and Doug Rowe leaving The New Brunswick All-Terrain Vehicle Federation Inc. and the Saint John ATV Club Inc. as the two remaining Defendants. I will deal with the issue of costs relating to the personal Defendants later in this decision. [33] The issue of costs for each of the personal Defendants dropped from the Plaintiffs' action was left to the Court. In this regard, I award each of Tim Clarke, Larry Steele, Fred Hicks, Cory Elliott, Scott Smith, Jeff Brewer, Mike Gionet, Gary Moore and Doug Rowe costs in the amount of $1,000.00 each for a collective total of $9,000.00 inclusive of disbursements payable by the Plaintiffs forthwith. 19. The Rules of Court state clearly that as a consequence of a party wishing to withdraw from an Action, they, the withdrawing Party will pay costs to date to the remaining opposite party. The Intended Appellant did argue that if the Intended Respondent 501376 N.B. Ltd. a body corporate, wanted to withdraw from the litigation which it had in fact initiated, then it is only fair, further according to the Rules of Court and judicial custom to award cost to the remaining Defendant. 20. As the award of costs, is considered to be a matter within the discretion of the Trial Judge, the Intended Appellant will demonstrate that a grossly unfair allocation amounts to an error of principle, further, that the exercise of the Trial Judges discretion in this matter was affected by error in principle and or by misapprehension of the facts involving Reasonable Apprehension of Bias.

21. Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The law never works an injury, or does a wrong. The Intended Appellant claims the Learned Trial Judge erred in abuse of his discretion by not awarding Costs in favour of the Defendant is manifestly without merit, therefore excessively disproportionate, consequentially, unbalanced substantial injustice and serious injustice would result if this lack of Cost award is allowed to stand.

22. Furthermore Abuse of Discretion is defined by Lectlaw at the following website: (http://www.lectlaw.com/def/a004.htm) ABUSE OF DISCRETION When a court does not apply the correct law, or if it rests its decision on a clearly erroneous finding of a material fact. U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir.'93). A court may also abuse its discretion when the record contains no evidence to support its decision. MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91) .. judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion. 23. Abuse of Discretion is defined by answers.com at the following website: http://www.answers.com/topic/abuse-of-discretion Abuse of Discretion A failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedents 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.

24. The Learned Trial Judge did disregard the investment of time, resources and energy which the Intended Appellant did undergo to provide service of the copies of relevant Court documents to the numbered company. The Solicitor for the Numbered Company was in Fredericton, while the Solicitor for the Royal Bank of Canada was in Moncton, creating logistical and difficult service issues to overcome, so as to serve both parties on time and according to the Rules of Court. The Intended Appellant did have to invest the time, energy and resources to Defend claims made by Intended Respondent 501376 N.B. Ltd. a body corporate, it is only fitting and just that once that party withdraws their claims the party who was subject to respond to those very claims may be compensated with cost. 25. Manifest Abuse of Discretion is when the Courts decision is unsupported by the evidence and clearly on erroneous finding of a material fact, the Intended Appellant claims that the Learned Trail Judge has demonstrated Manifest Abuse of Discretion, in not awarding cost in favour of the Intended Appellant in these circumstances and it would be a disservice to the administration of justice to allow this decision to stand.

Decision Order 2 Striking Defendants Affidavits 26. The learned trial judge has erred in law as he displayed palatable and reasonable apprehension of bias in favour of the plaintiffs in his Conclusionsmotion filed January 25th, 2011: declares that all these parts of the various affidavits of Andre Murray, that where expressly identified and disputed by the Royal Bank of Canada in this Motion (see Record on motion filed March 17th,

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2011 and Plaintiffs Pre-hearing Brief on Motion) shall be struck from these affidavits. 27. The above herewithin Conclusions are especially rife with errors in law of such a widespread occurrence of erroneous conclusions not found in fact, moreover, alternatively where fact does exist as found within Official Transcripts provided for the Honorable Court within said Transcripts which subject Affidavits pointed to the evidence of Fraud Upon The Court as alleged against Solicitor George H. LeBlanc the learned trail judge displays misapprehension of the evidentiary facts which the Intended Appellant experiences as a reasonable apprehension of bias. 28. The costs awarded are manifestly wrong and unjust as all research was meritorious accumulated by the Defendant in that matter (Intended Appellant in this matter) and without a dough established that Fraud Upon the Court had occurred and this subject Fraud was instrumental in obtaining Court Orders by misrepresentation of facts which had in the first place caused the ex parte (without notice) Court Hearing and harmful illegal Court Orders to be granted as requested . 29. The learned trial judge displayed a reasonable apprehension of bias

when the learned trial judge in his DECISION ON FIVE MOTIONS October 21, 2011 paragraph 101, 102, 103, and 104 confirms that he indeed attempts to persuade the Defendant to voluntarily remove his accusations against Solicitor George H. LeBlanc of Fraud Upon the Court inter alia. re The Intended Appellant does verily believe those allegations as presented accusations against Solicitor George H. LeBlanc of Fraud Upon the Court inter alia therefore

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declined the Learned Trial judges persuasion to voluntarily remove these subject assertions from my Affidavit.

Third Motion Originally filed Nov 16, 2009 Amended several times last version Filed on November 19, 2010 Decision Order 3 Rescinding Orders 30. As pointed out in paragraph 109 it had become necessary, resulting from the accusations of the Defendant that Solicitor George H. LeBlanc had committed Fraud Upon the Court in order that George H. LeBlanc may obtain the Orders as requested and found within his Clients September 18, 2009 Notice of Action and Statement of Claim; therefore George H. LeBlanc did retain solicitor Edwin Ehrhardt of Law Firm: Bingham Robinson Maclennan Ehrhardt Teed to speak in George H. LeBlancs stead. As Intended Appellant comprehends the need for George H. LeBlanc to retain solicitor Edwin Ehrhard was that Solicitor George H. LeBlanc had to avoid making further statements that may therefore further incriminate himself regarding the matter of how he obtained the Court Orders from hearing of October 20, 2009 ex parte and without Notice to the Defendant. 31. The Learned Trial Judge errored in paragraph 107 in misapprehending and or confining the quantity of Orders requested rescinded, from the October 20, 2009 ex parte without Notice hearing. 32. The Learned Trial Judge errored in law as confirmed in his paragraph 108 as indicated abundant numerous Affidavit reasonably substantive material was

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omitted and or rejected as material to be considered therefore reasonably causing misapprehension of the Material facts. 33. The Learned Trial Judge in paragraph 124 reveals a reasonable apprehension of bias as we see unsubstantiated furthermore, conclusions are found not in fact and entirely causing or tending to be or appear o be preconceived judgment or convictions therefore, exactly opposite; contrary to the evidence as provided to the Honorable Court at the very least and not any less significant is this palpable misapprehension of the evidence. 34. The Learned Trial Judge in paragraph 126 reveals a reasonable apprehension of bias again by trusting in so called abundant and corroborating evidence provided by as must be the case Solicitor George H. LeBlanc, who was revealed as lying on his own Affidavit and force to recant also and not any less guilty of perjury was Solicitor George H. LeBlancs process server Dave Daneliuk who was also forced to recant on his own Affidavit having been revealed as not speaking the truth under oath. 35. The Learned Trial Judge in paragraph 127 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 36. The Learned Trial Judge in paragraph 128 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court.

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37. The Learned Trial Judge in paragraph 129 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 38. The Learned Trial Judge in paragraph 130 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 39. The Learned Trial Judge in paragraph 131 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 40. The Learned Trial Judge in paragraph 132 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 41. The Learned Trial Judge in paragraph 133 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court.

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42. The Learned Trial Judge in paragraph 134 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 43. The Learned Trial Judge in paragraph 135 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. This conclusion as found in paragraph 135 appears to dismiss the facts as found within transcripts provided confirming that George H. LeBlanc had laid the foundation for the resulting non Amended Motion as recognized by the Honorable Court as this was an attempt by George H. LeBlanc to further confuse matters regarding his erroneously alleged avoidance of service propaganda against Defendant Andre Murray, when in fact the entire method of operation was highly synchronized beginning with the September 18, 2009 filing of the Notice of Action which was never attempted to even be sent in a manner that could arrive (Acadian Bus Line) into process server Dave Daneliuk hands in Fredericton reasonably before October 7, 2009, that being only 3 days before the Rules of Court require Service. Furthermore, the subject Amended Notice of Motion never requested a abridgement of time for service according to rules of court and an Affidavit for service of same does not exist. 44. The Learned Trial Judge in paragraph 136 reveals and admits his error in law.

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45. The Learned Trial Judge in paragraph 137 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 46. The Learned Trial Judge in paragraph 138 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 47. The Learned Trial Judge in paragraph 139 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 48. The Learned Trial Judge in paragraph 140 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 49. The Learned Trial Judge in paragraph 141 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court.

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50. The Learned Trial Judge in paragraph 142 reveals and admits his error in law. 51. The Learned Trial Judge in paragraph 143 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. 52. The Learned Trial Judge in paragraph 144 reveals error in law by a palatable reasonable apprehension of bias accompanied by misapprehension of the evidentiary evidence as provided before the Court, proving that in fact the exact opposite conclusions would reasonably be found by the Honourable Court. Conclusions Third Motion 53. Intended Appellant here within, has where relevant, provided a summary of the events which lead up to the October 20, 2009 Hearing of a Motion which the Intended Appellant wished to have rescinded. 54. The Intended Appellant is of the view that the New Brunswick Chief Rentalsmen, in pursuance to the New Brunswick Residential Tenancies Act, are the only authority who have Jurisdiction to rule on matters concerning New Brunswick Residential Tenancies, with the exceptions as enumerated within the New Brunswick Residential Tenancies Act. 55. The Intended Appellant believes that the motivating factor, on the part of the Intended Respondents in Initiating the subject Notice of Action and Statement of Claim Court File date stamped September 18, 2011 is to

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extinguish the Intended Appellants Mechanics Lien inter alia which are Registered as encumbrances against the Title of the said property and subject of the Mortgage offered at Auction July 16, 2009. A Mechanic Lien Registered against any property in New Brunswick can be extinguished through the Power of Sale provision in pursuance with the New Brunswick Property Act. 56. Regarding rescinding the October 20, 2009 Orders, pursuant to Rules of Court, Rule 37.06 the Intended Appellant did rely on Canadian Civil Procedure Law which states an ex parte order made, will only be effective for a short period of time as the Courts customarily set aside any order that may have been made in the absence of full disclosure. 57. According to Canadian Civil Procedure Law page 480, 7. 11 "Generally, where an ex parte order is made, it will only be effective for a short time period. If the moving party wishes to continue it, then it is necessary to obtain an extension on the specified return date for the order." 58. According to Canadian Civil Procedure Law page 483, 7. 14 "The courts insist that full disclosure of all material facts must be made on an ex parte motion. Where such disclosure is not made, the courts may subsequently set aside any order that may have been made in the absence of such disclosure." 59. The Intended Appellant does rely on the following Maxim: Maxim - Longa possessio parit jus possidendi, et tollit actionem vero domino. Long possession produces the right of possession, and takes away from the true owner his action. Co. Litt. 110.

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60. The Intended Appellant Andr Murray has been in continuous possession of the subject property; six consecutive years without incident, has a lawful right of possession and legal standing under the Residential Tenancies Act of New Brunswick. 61. Intended Appellant Andr Murray has dutifully maintained the subject property, to the financial benefit of the Mortgagee Royal Bank of Canada, any tentative purchaser and Title Holder Betty Rose Danielski. 62. According to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 under Application of Act, we see: 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b) arising or entered into before or after this Act comes into force.

63. According to Intended Appellant Andr Murrays understanding of the Residential Tenancies Act of New Brunswick, the exercising of the Power of Sale conferred by s.44 of the Property Act, R.S.N.B. 1973, c.P-19, procedures would not affect the Tenancy of Defendant Andr Murray because the Application of the Residential Tenancies Act, Section 2 states: Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary;

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which would include the New Brunswick Property Act and any Mortgage contract that allegedly may exist but has yet to be confirmed as existing, which is another oversight and misapprehension of the facts by the learned Trial Judge. - Legal Maxim -The welfare of the people is the supreme law. Broom's Legal Maxims (max. 1-10), also Bacon's Maxims (reg.12) 64. Intended Appellant Andr Murrays view is that Legislative Assembly in drafting The Residential Tenancies Act of New Brunswick intentions were to create and or to protect the Rights and the welfare of the Tenants and Landlords of New Brunswick. Maxim - Domus sua cuique est tutissimum refugium To everyone his house is his surest refuge. 65. Intended Appellant Andr Murray is one of those Tenants, The Residential Tenancies Act of New Brunswick was created to protect, which enshrines the maxim To everyone his house is his surest refuge and the Defendant asks the Court to act to defend the rights of the Tenant, so justly needed. Maxim A contract founded on a base and unlawful consideration, or against good morals, is null. 66. A Claim by the Solicitor George H. LeBlanc that a Mortgage contract grants the Mortgagee the power or right of eviction of a Tenant in good standing must have been found base and or reasonably upon unlawful

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consideration, or against morals of the public good, and therefore would reasonably cause such a Mortgage contract to be null and void. Maxim - Caveat emptor (let the buyer beware). 67. Furthermore, of significance and of undeniable relevance, must be the fact that the Plaintiffs in this matter have signed a contract between each other (Vendor Purchaser) which stated clearly that; QUOTE; the Purchaser is to accept the real estate, subject to existing tenancies, and any registered restrictive covenants, if any, as they exist at the date thereof. (Please see: Record on Motion, filed by Andr Murray, Book 1, page 492 -493, paragraph 8).

68. Considering the facts of paragraph 8 in the Bidding Papers & Terms of Sale state: The purchaser accepts the real estate, subject to existing tenancies, and any registered restrictive covenants, if any, as they exist at the date thereof. It appears to Defendant Andr Murray that the undertakings found within the Bidding Paper and Terms of Sale of the signing contractual parties are in blatant stark contrast to the subsequent actions of the vendor; in this case R.B.C and the tentative purchaser; in this case, 501376 N.B. Ltd. a body corporate. 69. To side step the legal protection afforded by law to all tenants by Rentalsmen of New Brunswick, Perhaps the Royal Bank of Canada attempted through attrition inter alia litigating the Defendant out of his Residential Leasehold home and lawful Tenancy since April 1, 2005 in not sincere. This behaviour is detrimental to the society as a whole and if left unchecked could encourage others to do the same.

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Maxim - Acta exteriora indicant interiora secreta External actions show internal secrets, i.e., intention may be inferred from a person's actions. 70. Character assignation of George H. LeBlanc was not the intention of Law neophyte and Defendant Andr Murray. It was only after thorough examination of all Affidavits, only after reviewing and considering the circumstances, as laid out and found there within the Court Filed evidentiary affidavits, as filed within the Court of Queens Bench, did Defendant Andre Murray realize discrepancies, relating to this case and was at a loss, as to how it could be, that the Process Server Dave Daneliuk by way of Sworn affidavit Claimed that on October 5, 2009 to have documents in hand for service upon Defendant Andr Murray, when by Court Brief of Solicitor George LeBlanc, Dated: October 16, 2009 states, that Solicitor George LeBlanc never received the Court documents back from Queens Bench, for Service, until no sooner thann October 5, 2009 which begged the question, how could Process Server Dave Daneliuk say by Affidavit that he is holding the documents in Fredericton on the early morning of October 5, 2009, at the same time George H. LeBlanc is receiving them in Moncton! How it is that the Process Server by way of affidavit Claimed that on Monday the 5th to have documents in hand, conversely when by affidavit of Solicitor George LeBlanc DATED January 13, 2010 states that George he never sent the Documents for Service till the 6th which begged the question how could Process Server Dave Daneliuk by Affidavit be holding the documents on the 5th How could Process Server Dave Daneliuk record the minutes of three different visits to 29 Marshall Street while allegedly attempting Service of Court Documents throughout Monday the 5th day of October at the Subject property at Marshall Street, City of Fredericton.

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71. NOTE: Process Server Dave Daneliuk claims; three visits in one day Monday the 5th day of October, which always involves a loud knocking session on the various doors, as he has stated in affidavit of date October 14, 2009. Monday, October 5th, 2009 at 7:30 a.m; 2:00 p.m. (drive-by) 9:00 p.m. for about 20 minutes.

72. Has this three visit day which never truly occurred been discounted from the bill for services rendered to Royal Bank of Canada!? Later much later and after this discrepancy is brought to his attention by Affidavit evidence submitted by Defendant Andre Murray, Process Server Dave Daneliuk amends his affidavit and begins to call himself David A. Daneliuk! 73. Process Server Dave Daneliuk amends his multiple affidavits of service to deny that three separate failed service attempts which his earlier Affidavit Swore occurred, actually never did happen at the Defendants address of 29 Marshall Street on that day Monday, October 5th, 2009 7:30 a.m; 2:00 p.m. (drive-by) 9:00 p.m. for about 20 minutes.

74. This is implausible to the Intended Appellant Andre Murray. How does someone, who claims to be professional and is apparently recording the details of each and every visit to the point of recording minutes of each visit suddenly decide that the three visits involving Monday, October 5th, 2009 at 7:30 a.m; 2:00 p.m. (drive-by) and 9:00 p.m. for about 20 minutes. A three visit day which never truly occurred.

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75. Referencing paragraph 12) of the Affidavit of Process Server Dave Daneliuk Dated October 14th 2009 and found as exhibit G of Affidavit George LeBlanc DATED 13th day of January, 2010, page 640 of Record on Motion Book 1or alternatively Page1342 of ADDENDUM Record on Motion. 76. This Honorable Court must consider that Process Server Dave Daneliuk states On several occasions, I could hear someone inside, but no one would answer the door or show their face. Defendant Andr Murray suggests that if Process Server Dave Daneliuk heard the above sounds on the day Monday, October 5th, 2009 at 7:30 a.m; 2:00 p.m. (drive-by) and 9:00 p.m. for about 20 minutes .. Quote of Process Server Dave Daneliuk On several occasions, I could hear someone inside, Intended Appellant Andr Murray wonders where these scenarios occurred, but assures this Honorable Court it was not at 29 Marshall Street nor at 31 Marshall Street. Further to this point it is incomprehensible to Intended Appellant Andre Murray that a professional Process server is recording the minutes of each and every visit and contrary to reasonable thought, what could now be reasonably considered is the questionable and evidentially improper filing procedures of Process Server Dave Daneliuk having misplaced a whole day of Professional activity, and consisting of three separate visits involving loud knocking also I could hear someone inside,. Questions must occur in the reasonable mind, such as, where did this Monday, October 5th, 2009 go, and into whos file has it been placed into, and consequentially, whos files have been misplaced into Intended Appellant Andr Murrays file! 77. In light of revelations of the blatant Prejudice of Process Server Dave Daneliuk against Defendant Andr Murray, any reasonable person must ask

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themselves, why did, Solicitor George LeBlanc permit this Process Server to remain in his Service!? 78. Intended Appellant Andre Murray is not relying on hearsay or hypothesis. The facts are laid out by the Plaintiffs, by way of their own affidavits, and consequentially can be, chronologically, assembled, which will and or does clearly reveal the numerous blatant discrepancies, between that which could be and conversely, the physically impossible. 79. Dave Daneliuk claims that Defendant Andre Murray is barred from shopping in Atlantic Superstore. 80. The above barred is a slanderous allegation, it is entirely false. Defendant Andre Murray is not now and never has been barred from shopping in Atlantic Superstore furthermore, Defendant Andre Murray does not currently have a criminal record not has Andre Murray ever had a criminal record as has been alleged and found within affidavits of Dave Daneliuk. 81. We must continue to review Dave Daneliuks affidavits. (Please see Affidavit of George H. LeBlanc signed January 13, 2010 tab E page 636 Record on Motion Book 1) Note; Great urgency is expressed, in the letter Dated October 6, 2009 sent from George LeBlancs law Office in Moncton first to Atlantic Document Service Ltd. 106 Greywood Court, Riverview N.B. E1B 5N2 which, than is the same day 4:37 p.m. forwarded to Process Server Dave Daneliuk in Fredericton N.B. at Provincial Security and Investigation Services Ltd. 82. Regarding this matter Defendant Andre Murray has confirmed with Acadian Bus Lines furthermore, as Defendant Andre Murray talked with Miles

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an attendant customer service employee at the Acadia Bus Lines location in Moncton at 1 -506 - 859 - 5060 # extension 3. Miles said he remembered the drop off of the package for delivery to Fredericton as he often enough, serves Atlantic Document Service Ltd. 106 Greywood Court, Riverview N.B.. Miles continued to search for that date on the company computer and located the Atlantic Document Service Ltd. customers file which indicated that a drop off occurred at Acadian Bus Lines on the 6th, 4:37PM - left an hour later Way Bill number 0040078072 (Confirmed) Bus departure time: 17:30 bus arrival time reportedly (usually 7:45PM). 83. May it please this Honorable Court the events which begin to unravel appear to occur and appear to be in response to the Letter (Please See: Affidavit of George H. LeBlanc Dated January 13, 2010, found in Exhibit E page 636 Record on Motion Book 1) written by Solicitor George LeBlanc Dated October 6, 2009 and sent from George LeBlancs law Office in Moncton. The letter is first sent to Atlantic Document Service Ltd. 106 Greywood Court, Riverview N.B. E1B 5N2 which forwarded to Process Server Dave Daneliuk in Fredericton at Provincial Security and Investigation. Defendant Andre Murray notes a tone which is set by the letter of Solicitor George LeBlanc. Defendant Andre Murray provides the following excerpt from the above here within mentioned Letter of Solicitor George LeBlanc Quote: Please note that this must be served on a rush bases and in any event no later than October 10th, 2009. Also Intended Appellant Andre Murray also notes from same letter and provides another excerpt from same above letter, for this Honorable Court to consider, Quote: Please exercise caution when serving.

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84. Affidavit October 14, 2009 of Process Server Dave Daneliuk confirms that which amounts to Process Server Dave Daneliuk allegedly having traveled only five separate days in attempts to allegedly Process Serve Defendant Andre Murray; Process Server Dave Daneliuk must after, Defendant Andre Murray reveals the errors found in Affidavit of Dave Daneliuk, a retraction Affidavit is than provided consequently reducing alleged visits to 29 Marshall Street down to four separate days which will be proved by Defendant Andre Murray could not have been more than two days possibly the 9th and 10th days of October, 2009, Defendant Andre Murray believes no service attempts were ever made by Process Server Dave Daneliuk. 85. Note: regardless of the urgency which had been expressed by letter of George LeBlanc Process Server Dave Daneliuk reportedly decided not to attend the property October 8, 2009. 86. Why the separation between October 10 and October 13, 2009! Process Server Dave Daneliuk himself is seen to write in his Affidavit that he did not attend the property again allegedly after October 10, 2009 and not allegedly again until October 13, 2009 at which time he alleges attempting service of subject Court Documents furthermore, alleges to have left documents taped to front door of 29 Marshall Street, October 13, 2009. 87. Later he acknowledges that the door he left the documents at was beside the enclosed glass sunroom porch of 29 Marshall Street which pictures provided by Defendant Andre Murray confirm the location in question as 31 Marshall Street. 88. Before further exploring the special interests revealed by Process Server Dave Daneliuk has expressed in Andre Murray

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89. Documents are indeed discovered by Defendant Andre Murray at 31 Marshall Street and not before 22nd of October, 2009. Why then did Process Server Dave Daneliuk not leave the Documents on Saturday October 10, 2009? 90. Intended Appellant Andre Murray has contacted each Clerk of the Court in each of the New Brunswick Queens Bench Jurisdictions. Each Clerk was asked about the possibility of Queens Bench of New Brunswick Officially Stamping and filing any Documents for Trial Division furthermore, would it be possible to only receive these documents not sooner than three weeks later ..in each and every case the Clerks of the Court said not possible, they further assured Defendant Andre Murray that the Documents are File Stamped and returned same day in all cases. Question: George LeBlanc claims after filing with Court of Queens Bench on Sept 18, 2009 to have not received the same filed documents until October 6, 2009. 91. Why did Solicitor George H. LeBlanc not make sure to receive Sept 18, 2009 filed documents sooner? Where were the Court documents? Why was Defendant Andre Murray not contacted by his phone number, which George LeBlanc has, and when or if in the event that he had attempted unsuccessfully to contact Defendant Andre Murray or by email, then an adjournment would have been appropriate. 92. Consequentially, Defendant Andre Murray was completely unaware and missed the Hearing of October 20, 2009. 93. To begin with as is witnessed by R.B.C. associate collections person Julie Ruggerio in a letter to Solicitor George LeBlanc, Julie Ruggerio recognizes that Defendant Andr Murray has assured Solicitor George LeBlanc of the Andr Murrays Residential Leasehold, which does exist; irregardless of these facts,

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Julie Ruggerio instructs an Officer (Solicitor George LeBlanc) of the Court to proceed to break the law The Residential Tenancies Act, Acts of New Brunswick, 1975, c.R-10.2, s.9) and cause an eviction of a Residential Leasehold Tenant to occur from 29 Marshall Street, in the City of Fredericton, which Solicitor George LeBlanc than instead of preparing a termination of lease The Residential Tenancies Act, Acts of New Brunswick, 1975, c.R-10.2, s.9) prepares a NOTICE OF ACTION and STATEMENT OF CLAIM erroneously claiming that a Leasehold does not exist and pursues AD HOMENIUM character assassination instead of providing substantive evidence; outrageous allegations abound it is not insured, it is boarded up. as such is found within the ex parte pre hearing brief signed October 16, 2009, George H. LeBlanc, (Record on Motion, Book 1, page 560) who also appears to have methodically arranged late service, and if not methodically, than negligently creates the state or fact of being intellectually deceived or misled, therefore, collaborates the environment for late Document service by the Process Server Dave Daneliuk. 94. Communication between these Syndicated parties apparently became confused as George LeBlanc is provides a Court Brief to this Honorable Court: Date signed October 16, 2009 George H. LeBlanc (Please see: page 10, paragraphs 45 Record on Motion, Book 1, page 560)returned to the Plaintiffs council on or about October 5th, 2009 evidently the idea of October 5, 2009 was inadvertently perceived by Process Server Dave Daneliuk at Provincial Security and Investigation Services Ltd. of Fredericton that his Affidavit of Service should reflect failed attempts of Service upon Defendant Andre Murray beginning October 5, 2009; this is exactly what occurred as Process Server Dave Daneliuk first states by Affidavit, found in his first Affidavit stating that service had begun on the morning of October 5, 2009 and continued through

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out the day including three visits, whoops he could not have reasonably had the documents until October 7, 2009 because the Court Documents where sent from Office of George LeBlanc 6th day of October and sent to Atlantic Document Service Ltd. 106 Greywood Court, Riverview N.B. E1B 5N2 these people at Atlantic Document Service Ltd. on the same day was forwarded to Process Server Dave Daneliuk in Fredericton N.B. at Provincial Security and Investigation Services Ltd. By Acadian Bus lines the shipment would have arrived at scheduled time of 7:45 p.m. the employees at that location assure Defendant Andre Murray that it is highly unlikely that the shipment would have been picked up that day because they close and lock their doors at 8:00 p.m. Note this would then make the claims of Process Server Dave Daneliuk that he was attempting service October 7, 2009 in the early morning at 8:00 a.m. simply not possible if Acadian Bus line does not open their doors for business until 8:00 a.m. 95. So the following attempt to discredit Defendant Andre Murray fiasco, which includes chimerical allusions creating mental pictures of squatters living in a boarded up house, on Marshall Street in the City of Fredericton which, definitely never been boarded up, furthermore, this Honorable Court was deceived to believe that Andre Murray does not have Color of Right which had to have been a purposeful deception because the Solicitor for the R.B.C. knew otherwise. 96. In regard to That time for service of the within Notice of Motion be abridged although the time for service of the Notice of Motion was abridged, the time for service of the Amended Notice of Motion was not abridged. Defendant Andr Murrays understanding and interpretation of the Rules of

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Court is that an Amended Notice of Motion must be served 10 days before the hearing date, Review the Rules of Court Rule 37.04(5) (5) Where service of a Notice of Motion or Preliminary Motion is required, it shall be made at least 10 days before the date of the hearing. 97. Defendant Andr Murray reaffirms the Serving of the Amended Notice of Motion did not at any time occur. The Serving of the Notice of Motion arrived damaged, critically illegible, with less than ten days (one calendar day before) remaining before the hearing, which did not allow a fair opportunity for Defendant Andr Murray to accordingly respond to the Notice of Motion, furthermore, the circumstances of a Investment Instrument (Mortgagees Deed) being sold by R.B.C, a corporation did not warrant in Defendant Andr Murrays view an abridgement of time for service. 98. Let us examine paragraph 46 of the Plaintiffs submitted Pre- Hearing Brief Court File Date Stamped October 16, 2009 by the Court of Queens Bench Trial Division, Moncton, New Brunswick. In the circumstances of this case, where the Defendant and/or unknown occupants have refused to accept service of the court documents , where the Mortgagor, Mortgagee , and Purchaser have all been unable to gain possession of the property, and where the property is at risk; it is respectfully submitted that the Court should exercise its discretion to abridge time for service of the Motion and/or any Order of the court. 99. Furthermore the Plaintiffs Solicitor George LeBlanc stated in the Oct 16th, 2009, Court Brief, (Please refer to (Record on Motion, Book 1, from page 560, paragraph 46) the Defendant and/or unknown occupants have refused to accept service of the court documents. This allegation could not be true,

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because of the fact that, George LeBlanc had been maintaining active communication with Defendant Andr Murray and could have e-mailed, phoned or mailed Defendant Andr Murray to communicate that Service was being attempted. 100. George LeBlanc chose not to communicate his desire or need for service of Notices of Action and or any Court Documents for that matter with Defendant Andr Murray. George LeBlanc had and should still have Defendant Andr Murrays phone number and e-mail address. 101. Because of the following, the allegations of Solicitor George LeBlanc alleging evasion of Service are less than credible. This further strengthens the claim of Defendant Andr Murray, which is that Defendant Andr Murray did not know Service was being attempted. 102. Furthermore Plaintiffs Solicitor George LeBlanc claimed and stated in the Oct 16, 2009 Court Brief, the Defendant and/or unknown occupants have refused to accept service of the court documents. The affidavit of Process Servers Dave Daneliuk stated that his first three attempts of service occurred Process Server Dave Daneliuk stated under oath that he did and had on Monday Oct 5, 2009 attend the subject property Monday Oct 5, 2009 at 7:30 a.m Process Server Dave Daneliuk further stated under oath that he did and had on Monday Oct 5, 2009 attend the subject property October 5th, 2009 2:00 p.m. (drive by) Process Server Dave Daneliuk continued to reaffirm under oath on the same Affidavit that he did attend the subject property once again the same

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day and for the third time Monday, October 5th, 2009 9:00 p.m. for about twenty minutes 103. If Dave Daneliuk is telling the truth then George LeBlanc would have had to have sent the Documents for Service before Monday, October 5th, unless there was a extremely early express service from Moncton to Fredericton which no one in the industry is aware of, as Defendant Andr Murray has enquired after this matter in all appropriate places. 104. As this Honorable Court may be aware Process Server Dave Daneliuk has made a less than full disclosure/retraction of what has come to be exposed as a erroneous Position that Process Server Dave Daneliuk was never at the 29 Marshall Street, Fredericton property Oct 5, 2009. 105. Process Server Dave Daneliuk is seen in his alternative affidavit to be much less enthusiastic, and limits his retraction of the earlier extensive verbalization down from the initial erroneous attempted service count of three alleged avoidance of service incidents on that day Oct 5th, 2009 and reduced the full acknowledgement of his deception, down to an obfuscation, designed and or written in a manner so as to avoid disparaging the matter, thereby reducing the three incidents of false affidavit testimony, affidavits are what we expect to be treated as solemn declarations is reduced in gravity down to, as one may observe by the tone of his latest Retractable Affidavit simple an insignificant single day mishap incident event.(Please see: revised AFFIDAVIT of Process Server Dave Daneliuk now calling himself David A. Daneliuk Dated: 12th day of March, 2010, SWORN TO at City of Fredericton Paragraph 16, ADDENDUM Record on Motion, from page 1333) Here is the retraction a less than sincere disingenuous excerpt Quote:

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The reference to a drive-by and attendance on October 5th, 2009 in exhibits A & B was in error. That was not an attempt at service at this property, but rather an attempt at service in another unrelated matter, and the reference to that is incorrect. 106. Dave Daneliuk has now corrected this claim, in the Affidavit of Dave Daneliuk, paragraph 46). Furthermore the professionalism and judgment of the Process Server Dave Daneliuk must be questioned. Process Server Dave Daneliuk displayed prejudicial dislike of the Defendant Andr Murray as evidenced by slanderous and derogatory remarks in Dave Daneliuks affidavit dated, 14th day of October, 2009. The slanderous remark where made apparently attempting to defame the character of Andr Murray followed by outright deceptive statements which allege the Defendant Andr Murray is a criminal and has views such as dislike of commerce. As an example in paragraph 4 of the Affidavit sworn 14th day of October , 2009 at the City of Moncton, in the County of Westmorland and the Province of New Brunswick: Dave Daneliuk states: Murray has extreme hatred towards government and big business. 107. The Intended Appellant Andr Murray has observed something interesting on the 19th day of October, 2009; the usual afternoon Canada Post mail delivery, that day, contained a large envelope which could not fit into the mailbox, more than that as a curiosity was that on the exterior of the envelope received at this time (only one day before the DATE set for hearing of a NOTICE OF MOTION contained there within) of which can be examined as exhibit J; the Address area of the envelope is of great concern: Andr Muiiuj

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First of all Marshall is written so as to have illegible letters contained within it and reads as follows 29 Mai s l^ll the word Street is absent from the expected location following the name Mai s l^ll which could and would in all likely hood cause confusion for the post office workers attempting to deliver this document seeing as how Marshall could have been a Street, Lane, Avenue or road. Absent is also the customary spelling of the City Fr<d<rictow use of a POSTAL CODE Defendant Andr Murray suspects was entirely left out to ensure absolute confusion and late delivery

108. The Envelope containing the documents Court File Number: MC064209 THE COURT OF QUEENS BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDITICAL DISTRICT OF MONCTON was stamped as being Stamped Sent from Fredericton N.B. by Canada Post on the 15th of October, 2009; (Please see RECORD ON MOTION Book 1 Exhibit J page 349).

109. Defendant Andr Murray observed the Envelope containing the above here within mentioned, Court Documents as was stamped by Canada Post, as being removed from circulation on the 16th of October, 2009, and a sticker on the surface indicated the package as being repaired by Canada Post. The sticker reads Mail item found damaged, torn or opened. (Please see RECORD ON MOTION Book 1 Exhibit J page 349). 110. Defendant Andr Murray did discover, upon examination of the envelope marked for Exhibit as J that damage to the envelope was so extensive that the paperwork contained within the envelope was damaged as well. The damage to the documents contained within, appeared to be precisely focused, and aimed (if I may) exactly, on the area, which indicated the date, and also would have

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announced to all concerned, where the court hearing was scheduled. (Please see RECORD ON MOTION Book 1 Exhibit K page 351). 111. Plaintiffs Solicitor George LeBlancs claim stated in the Submitted October 16, 2009, Court Brief, of where the property is at risk is unfounded seeing that George LeBlanc was aware that the Defendant Andr Murray had been a tenant at the property for more than 4 years time. The claim that the property is now, suddenly, at risk, there is no evidence to that false statement; as such that statement is unfounded. 112. The Intended Appellant Andr Murray has and is currently maintaining complete Insurance coverage of the 29 Marshall Street and 31 Marshall Street Property, which covers any risk of loss to or interests the R.B.C and/ or the 501376 N.B. Ltd a body corporate, so there is no risk to the property. 113. Further regarding the requested Order 4. That service of the Notice of Action with Statement of Claim Attached, Notice of Motion, Amended Notice of Motion, and any Order of the Court shall be sufficient by posting a copy of same at the door of the premises located at 29 Marshall Street, Fredericton, New Brunswick, and shall be effective on the date of posting thereof;

114. In regard to the above item number 4, this Order without question requires as prerequisite to being effective on the date of posting thereof: that the Amended Notice of Motion must be posted at the door of the premises known as 29 Marshall Street, Fredericton. The Amended Notice of Motion was not ever served and could not have been as it did not exist on October 13, 2009, the day Process Server Dave Daneliuk alleged Service of the Notice of Action

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with Statement of Claim Attached, Notice of Motion, and supporting affidavit documents which incidentally were found by the Defendant Andr Murray on the 22nd day of October, 2009, discovered hidden away, attached with masking tape, at the base of the 31 Marshall Street Door not on or near any of 29 Marshall Street Door and definitely not within the visibility of anyone entering or leaving 29 Marshall Street door. 115. In Telus Communications (Re: Motion for Substituted Service), 2006 BCSC 26 (CanLII) The Honourable Mr. Justice Burnyeat stated the following: [6] In Rogers Cable T.V. Ltd. v. International Brotherhood of Electrical Workers, Local 213, [1993] B.C.J. (Q.L.) No. 2822 (B.C.S.C.), the plaintiff submitted that several union members had actual notice because the order had been left at their residences. In this regard, Warren J. concluded that an order for substituted service would be available although it had not been ordered in that case: The plaintiff maintained that another three, Hawkins, Monkman and Low were served, however, after reading the affidavit of service I was not satisfied that those individuals had been personally served with all of the material as required by the rule. I am satisfied that the material was delivered to their respective residences but in the absence of an order permitting substituted service, that is not adequate. There must be a strict compliance with the rules where there is an application to find a person in contempt. (Clagget v. Clagget [1945] 2 W.W.R. 191).(at para. 7) 116. There must be a strict compliance with the rules where there is an application to find a person in contempt or in this case avoiding service, the service of documents where not in accordance with the Rules of Court, nor to the specifications of the substituted service

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117. The service of documents to 31 Marshall Street, the address next door to the address specified in the Order, cannot be considered compliance with the Orders of the Court. Furthermore, that door and entrance into 31 Marshall Street had not been used in four years as the West end of the Duplex was being used to enter and or exit 31 Marshall Street. 118. In Boardwalk Reit Limited Partnership v. Busler, 2006 ABQB 695 (CanLII) Honourable Madam Justice L. Darlene Acton stated the following regarding Substitutional service: [12] The learned Master referred to Mr. Justice Cts decision in Hansraj v. Ao, 2004 ABCA 223 (CanLII), [2005] 4 W.W.R. 669, 2004 ABCA 223 to support the proposition that proper service is important and that serious problems can arise in the absence of proper service. In the Hansraj decision, Ct J.A. was commenting on substitutional service orders; however, the principle remains the same. At para. 77, Mr. Justice Ct stated: Rule 23 is not a formality. Substitutional service is not a way of dispensing with service, nor a legal fiction. Substitutional service does not dispense with service; it replaces personal service with some other method likely to come to the personal attention of the defendant in question. [Emphasis added.] [13] The important aspect of personal service is that it gives the Court comfort that the document in question has come to the personal attention of the defendant or respondent in the matter. [14] In conclusion, I affirm the decision of Master Waller and direct that, if service cannot be effected by personal service on the tenant, an order for substitutional service must be obtained prior to proceeding to apply to terminate the tenancy. 119. If service allegedly could not be effected by personal service, as on the Defendant Andr Murray in this matter, an order for substitutional service must

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be obtained prior to proceeding to act, on the that very Substituted Service, requested of, and approved by the Honorable Court. 120. Furthermore in regard to the above order item number 4, this Order suggests that the Amended Notice of Motion was served on the 29 Marshall Street property, which to the Defendants knowledge and experience the Amended Notice of Motion was never served at any time or ever for that matter according to the rules of court. 121. May this please the Court Defendant Andr Murray has searched the Court Files in Queens Bench Moncton Client Services and could not find an Affidavit of Service for the Amended Notice of Motion Dated October 14. Defendant Andr Murray did discover while searching the Court of Queens Bench Moncton Client Services the actual Court Stamp Filed - Amended Notice of Motion bearing the October Stamp Filed Date of 15, 2009.Further to this matter of the service of Amended Notice of Motion bearing the Court Stamp Filed Date of October 15, 2009; that time for service of the within Notice of Motion has requested abridged although the time for service of the Notice of Motion was abridged, the time for service of the Amended Notice of Motion has never been requested as abridged; Defendant Andr Murrays understanding and interpretation of the Rules of Court is that an Amended Notice of Motion must be served 10 days before the hearing date; the Amended Notice of Motion to date has not according to the Rules of Court been served on Defendant Andr Murray as required. Maxim - Fraus omnia vitiat Fraud vitiates everything.

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122. The Solicitor for the Plaintiff R.B.C deceived Justice Zol R. Dionne on Oct 20th, 2009 multiple times about the Service of an Amended Notice of Motion, claiming that it had been served when in fact it never had. 123. At the hearing of the Motion on Oct 20th, 2009 Solicitor George H. LeBlanc asked Justice Zol R. Dionne (Please refer to Transcript of hearing of Oct 20th, 2009, Record on Motion Book 2, Page 684, - transcript Page 7, line1):My Lord, just for the record, may I ask the court to confirm that the service of service of the Notice of Action and Statement of Claim, the Amended Notice of Motion and the Motion is confirmed as of September 13th? In other words, this part has already been fulfilled. 124. At the hearing of the Motion on Oct 20th, 2009 Justice Zol R. Dionne asked Solicitor George H. LeBlanc (Please refer to Transcript of hearing of Oct 20th, 2009, Record on Motion Book 2, Page 684, - transcript Page 7, line 24): Okay, And so this Court declares as valid and sufficient the service of the Notice of Action with Statement of Claim Attached and that was already made to the defendant, Andr Murray, on thats October 13th? 125. Solicitor George H. LeBlanc replied to Justice Zol R. Dionne (Please refer to Transcript of hearing of Oct 20th, 2009, Record on Motion Book 2, Page 684, - transcript Page 8, line 2) September 13th. No, youre quite right, my Lord, October 13th. And that would apply, my Lord, to the amended Notice of Motion and Notice of Motion? 126. Also At the hearing of the Motion on October 20, 2009, Justice Zol R. Dionne asked Solicitor George H. LeBlanc; (Please refer to Transcript of hearing of October 20, 2009, Record on Motion

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Book 2, Page 684, - transcript Page 8, line5) : All these were served at October on October 13th? 127. Solicitor George H. LeBlanc replied to Justice Zol R. Dionne; (Please refer to Transcript of hearing of October 20, 2009, Record on Motion Book 2, Page 684, - transcript Page 8, line 7) :Thats right! 128. Also, occurring at the hearing of the Motion on October 20, 2009, Justice Zol R. Dionne asked Solicitor George H. LeBlanc; (Please refer to Transcript of hearing of October 20, 2009, Record on Motion Book 2, Page 684, - transcript Page 8, line 8) : By leaving a copy stuck to the door. 129. Solicitor George H. LeBlanc replied to Justice Zol R. Dionne; (Please refer to Transcript of hearing of October 20, 2009, Record on Motion Book 2, Page 684, - transcript Page 8, line 9) :Thats correct! 130. The evidence is clear, by way of dates on the Amended Notice of Motion which was signed by Solicitor George H. LeBlanc and dated as October 14, 2009 and the Court File Stamp Date of October 15, 2009, from the Court of Queens Bench Trial Division Moncton that service of the Amended Notice of Motion Document could not have possibly occurred on the 13th day of October 2009, as the Amended Notice of Motion Document had not yet been crafted by Solicitor George H. LeBlanc until October 14, 2009. (Please see Record on Motion Book 2, Page 688). 131. (Record on Motion Book 2, Page 842,). Date Court File Stamped October 20, 2009, item number 5, first this Order suggests that the Amended Notice of Motion was served on the 29 Marshall Street property. This is an outright lie,

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gross negligence and in the very least, misleading, because the Amended Notice of Motion could not have been served at the time as declared. The Amended Notice of Motion was dated Oct 14, 2009, by Solicitor George H. LeBlanc and filed with the Court of Queens Bench Trial division Moncton, which was Court File Date Stamped on the 15th day of October, 2009, two days later than the alleged service of the 13th day of October, 2009. The Amended Notice of Motion could not have been included in the package of documents allegedly served by the Process Server by the posting of a copy of same, at the door located at the premises of 29 Marshall Street, Fredericton, N.B. being alleged as October 13, 2009. 132. In Kusick v. Kusick, 2007 ABQB 441 (CanLII) Honourable Madam Justice M.B. Bielby stated the following regarding proof which must be provided, that the Respondent has been personally served with or otherwise obtained actual knowledge of the existence of and requirements of an order before one can be found in contempt of that Order and many of the principles apply to the case before this Honorable Court: [11] Before a finding of contempt may be made by this Court, proof must be provided that the Respondent has been personally served with or otherwise obtained actual knowledge of the existence of and requirements of that order as described in Bhatnager v. Canada (Minister of Employment & Immigration) 1990 CanLII 120 (S.C.C.), [1990] 2 S.C.R. 217 at paragraph 16 by Justice Sopinka: On the cases, there can be no doubt that the common law has always required personal service or actual personal knowledge of a court order as a precondition to liability in contempt. Almost two centuries ago, in Kimpton v. Eve (1813) 2 V & B. 349...Lord Chancellor Eldon held that a party could not be held liable in contempt in the face of uncontradicted evidence that he or she had no knowledge of the order. In Ex parte Langely (1879), 13

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Ch. D. 110 (C.A.), Thesiger L.J. stated the principle as follows, at p. 119: ...the question in each case, and depending upon the particular circumstances of the case, must be, was there or was there not such a notice given to the person who is charged with contempt of Court that you can infer from the facts that he had notice in fact of the order which had been made? And, in a matter of this kind, bearing in mind that the liberty of the subject is to be affected, I think that those who assert that there was such a notice ought to prove it beyond a reasonable doubt. [22] Justice Jenkins declared that the legislation violated s. 7 of the Charter in failing to provide notice and an opportunity to be heard. He stated at paragraph 40: The fundamental right to notice, and the logic involved with the principle that a person is only bound by an order upon receiving notice thereof, is enshrined in our law. For orders made under the Act, it is expressly stated in s. 5(1). Skipping proper notice of the result and order on the second step, the judges review of the record, cannot be justified either on the basis of administrative convenience or by any need at this review state of the proceedings to override the principles of natural justice. The entitlement of notice is not dependent on the language of the Act, but is based on a fundamental principle of justice within the rule of law. Given the interests of the state being pursued by the s.4(2) provisions, and the magnitude and seriousness of their effect on the interests of the individual which are affected, it should be inherent to evenhanded administration of the Act that those public officers charged with its administration, measures would always be taken to ensure fairness to the respondent. Fairness obviously includes express and clear notice of a judicial order, and clear information regarding the opportunities for review, variation and revocation of the order. This is especially so for a notice regarding a [confirmation] order, where it is predictable that a respondent could be dislocated, angry or distraught, and without legal counsel.

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[23] While Albertas Act does not contain the provisions which were declared unconstitutional in the result of Justice Jenkins decision, his observations in relation to the need for express and clear notice of a judicial order could be said to apply to confirmation orders in the context of our Act as well. Other jurisprudence highlights the need for Charter compliance in this type of domestic violence legislation albeit also in relation to provisions which do not appear in Albertas legislation which seems to be unique in its requirement for subsequent confirmation in an open court hearing on notice to the Respondent. For a recent example, see Baril v. Obelnicki [2007] M.J. No. 110. 133. The entitlement of notice is based on a fundamental principle of justice within the rule of law. There is fundamental right to notice of an upcoming hearing involving the adjudication of the rights of an individual. The logic involved with the principle that a person is only bound by an order, after being given the opportunity to speak to the matter in his defense and upon receiving notice thereof, is enshrined in our law. 134. Next Process Server Dave Daneliuk a.k.a. David A. Daneliuk provides his Affidavit Dated: October 14, 2009, which did not address a Amended Notice of Motion neither does the subject Affidavit declared as served a Amended Notice of Motion or provide a copy of same attached to the Affidavit of Dave Daneliuk. 135. Solicitor George Leblanc first claimed in George Leblancs Affidavit of January 13, 2010, (Record on Motion Book 2, 683) paragraph 19, line 3, that: 19) The reference to the Amended Notice of Motion in the Order was unnecessary and in error.

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136. Solicitor George H. Leblanc now admits misleading the Honorable Court on October 20, 2009, and causing the Court to erroneously believe that the Amended Notice of Motion was Served on October 13, 2009, which it was not. 137. Solicitor George H. Leblancs Affidavit of March 16, 2010, Record on Motion Bok 2, page 684, Paragraph 20 -21, George LeBlanc states: 20) Having reviewed the transcript of the Hearing, I was am very surprised that I indicated that it had been served on that date. That statement was patently and obviously in error. 138. Let us review the Rules of Court regarding Validation of service: New Brunswick - Rules of Court 18.09 Validating Service Where a document has been served by some method not authorized by an Act, these rules or an order of the court, or where there has been some irregularity in service, the court may order that the service be validated on such terms as may be just, if the court is satisfied that (a) the document came to the notice of the person sought to be served, or (b) the document was left so that it would have come to the notice of the person sought to be served, except for his own attempts to evade service. 139. Intended Appellant Andr Murray, verily believes, that the Learned Trial Judge should have Rescinded the Validation of Service Orders as found requested within and further granted within the Order issued from the hearing of a Motion before the Honorable Court on October 20, 2009, and at Queens Bench Moncton Trial Division because:

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1) The Amended Notice of Motion was not served on October 13th, 2009 as the Order falsely states. 2) The allegedly served documents where placed at 31 Marshall Street, an address door not specified in the Order of the Court, which clearly stated and required service at 29 Marshall Street. (Please see; Defendants Record on Motion Tab 87) 3) Defendant Andr Murray is claiming that the subject documents claimed as served on October 13, 2009, did not come to the notice of Defendant Andr Murray until October 22, 2009, two days after the October 20th, 2009 hearing had occurred; if the document had indeed been left so and on the alleged date of October 13, 2009, than it could not come to the notice of the person sought to be served except by chance as the door at which said documents where discovered on October 22, 2009 is 31 Marshall Street, The appropriate, most visible door to have left the documents would have been the door closest to the enclosed gateway entrance to the duplex clearly marked as 29 Marshall Street. 140. The evidence demonstrates that the Date on the Amended Notice of Motion which was Dated and Signed by Solicitor George H. LeBlanc as October 14, 2009, followed in sequence by the Court of Queens Bench Official File Date Stamp indicting that it was Court Filed October 15, 2009, with the Client Services of Queens Bench Trial Division Moncton, establishing, that Process Service of the Amended Notice of Motion Document, could not have happened ( as alleged on October 13, 2009) as affirmed by Solicitor George H. LeBlanc at the hearing October 20, 2009, in reply to Honorable Justice Zol R. Dionnes pointed questioning regarding this matter of the Process Service of October 13, 2009. 141. Furthermore, in Solicitor George H. LeBlancs Affidavit of January 13, 2010, Record on Motion Book 1, page 603, Paragraph 19 Solicitor George H. LeBlanc states as follows :

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The Amended Motion requests approval of Substituted Service and/or Validation of Service of the Notice of action with Statement of Claim Attached and the Notice of Motion with supporting Affidavits only. Moreover, the Affidavits in support of the Amended Motion referred to the Notice of Action with Statement of claim attached and Original Notice of Motion only. The reference to the Amended Notice of Motion in the Order was unnecessary and in error. 142. Defendant Andr Murray on the above retraction of Solicitor George H. LeBlanc: The reference to the Amended Notice of Motion in the Order was unnecessary and in error. 143. Solicitor George H. LeBlanc appears to have thought that it was necessary to deceive the Honorable Court. This act was not likely an unconscious act but rather a well practiced method of obfuscating matters, in that the requested Orders within the Motions about to be heard October 20, 2009 (5 days later) would be granted as requested by Solicitor George LeBlanc, on behalf of his clients; R.B.C & 501376 N.B. Ltd a body corporate.

144. Solicitor George H. LeBlanc admits to error in writing an Order for the Court within which he falsely claimed that the Amended Notice of Motion was served on the property.

145. Also, in Solicitor George H. LeBlancs Affidavit of January 13th, 2010, Record on Motion Book 1, page 603, Paragraph 20 Solicitor George H. LeBlanc states:

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At no time was it ever suggested or was the Court advised that Mr. Murray had been served with the amended Motion regarding Substituted and/or Validation Service. 146. Solicitor George H. LeBlanc Falsely claims that at no time was the Court mislead.

147. Defendant Andr Murray commissions the Official Transcript of the Court Hearing of October 20, 2009 at which hearing the Honorable Justice Zol R. Dionne was presiding. Defendant Andr Murray than paid for with his own money and provided a Official Certified Copy of the Transcript which resulted in many adjournments finally followed by Solicitor George H. LeBlancs Retraction Affidavit of March 16, 2010, Please see Record on Motion Book 2, page 684; Paragraphs 20 -21, where Solicitor George H. LeBlanc states: 20) Having reviewed the transcript of the Hearing, I was am very surprised that I indicated that it had been served on that date. That statement was patently and obviously in error. 21) Clearly the evidence presented to the Court did not indicate that the Amended Notice of Motion had been served, nor had that been argued prior to the decision of the Court. The Website the free Dictionary by Farlex at http://legaldictionary.thefreedictionary.com/argument provides a definition of ARGUMENT as follows : A form of expression consisting of a coherent set of reasons presenting or supporting a point of view; a series of reasons given for or against a matter under discussion that is intended to convince or persuade the listener. For example, an argument by counsel consists of a presentation of the facts or evidence and the inferences that may be drawn therefrom, which

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are aimed at persuading a judge or jury to render a verdict in favor of the attorney's client. An attorney may begin to develop an argument in the Opening Statement, the initial discussion of the case in which the facts and the pertinent law are stated. In most cases, however, an attorney sets forth the main points of an argument in the closing argument, which is the attorney's final opportunity to comment on the case before a judge or jury retires to begin deliberation on a verdict. 148. According to this above definition Solicitor George H. LeBlanc, contrary to George LeBlancs statement in the Affidavit of Solicitor George H. LeBlanc of March 16, 2010, Record on Motion Book 2, page 684, Paragraph 21, did and had indeed argued prior to the decision of the Court that the Amended Notice of Motion had been served.

149. Further to the above in George LeBlancs Affidavit of March 16, 2010, Record on Motion Book 2, page 684, Paragraph 22, George LeBlanc states: 22) I cannot understand why I would have made such patently incorrect statement to the Court. 150. The Defendant Andr Murray agrees with the above here within found statement (listed as 22) of Solicitor George H. LeBlanc; patently incorrect statement to the Court requested Orders of October 20th, 2009. 151. Further in following with the above, these statements where made by Solicitor George H. LeBlanc affidavit of March 16th 2010 to correct earlier seeing as this must

certainly have mislead the most Honorable Justice Zol R. Dionne to sign the

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statements made by Solicitor George H. LeBlancs Affidavit of January 13th, 2010, in which Solicitor George H. LeBlanc referred to in paragraph 16 : 16) Mr. Murray alleges at paragraph 102 of his Affidavit of November 16th, 2009 that I purposely falsified documents in order to expedite the Orders asked for, and that the Order signed by the Court was based the false pretense that the Court was advised that the Amended Notice of Motion had been served on Mr. Murray. 152. We now see that the allegations of Defendant Andr Murray appear to be corroborated by Solicitor for the Plaintiff George LeBlanc although it must be noted that the actual filing of the Amended Notice of Motion occurred October 15, 2009, two days after the alleged Service October 13, 2009, of same Amended Notice of Motion, which is contrary to sworn Affidavit of Solicitor George H. LeBlanc. Maxim - Identitas vera colligitur ex multitudine signorum.- true identity is collected from a number of signs. 153. Did Process Server Dave Daneliuk a.k.a. David A. Daneliuk ever serve the subject documents to the 29 Marshall Street property on October 13th, 2009? Defendant Andr Murray cannot rely on unreasonable and unrelenting, abundance of deception and contradictions found throughout all SWORN TO Affidavits which cause the Balance of Probabilities to clearly indicate that Process Server Dave Daneliuk a.k.a. David A. Daneliuk never did attempt Process Service on Defendant Andr Murray, as specified in the October 20, 2009, Order of the Court, so that the Learned Trial Judge should not validate such erroneous claims of service

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154. Defendant Andr Murray did not discover the Court Documents package until the 22nd day of October two days after the COURT HEARING OF THE MOTION October 20, 2009, and one day before the surprise eviction; the Notice of Action with Statement of Claim attached and Notice of Motion, with supporting affidavits which Defendant Andr Murray discovered at the 31 Marshall Street address door while hanging laundry. ( Please see Record on Motion, Book 1 page 297, paragraph 92.) 155. Defendant Andr Murray did not use this 31 Marshall Street, civic address door to enter and exit 31 Marshall Street, further, this subject door is tucked away inside an alcove of the building. Motion, Book 1 pages 588, 590 and 591). 156. The duplex bearing civic addresses 29 Marshall Street and 31 Marshall Street property has 5 exterior doors, which potentially offers 5 possible entrances and or exits. Only two of the exterior doors directly access 31 Marshall Street; two of the other doors directly access the living areas of 29 Marshall Street; the door leading to the wood and storage shed is a common area at the 29 Marshall Street end of the duplex. 157. The door that Dave Daneliuk indicates in his Affidavit alleged he left the Notice of Action with Statement of Claim attached and Notice of Motion, with supporting affidavits on the 13th of October, 2009 at the 29 Marshall Street property, which in Dave Daneliuks affidavit dated 14th day of October, 2009 at paragraph 15, he decided was the front door, was in actuality behind a arbor and secured gated access area, which is also described in Dave Daneliuks same affidavit paragraph 7: The main entrance to the property has been fortified with wood. This secured (Please see Record on

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gate was again referenced in Dave Daneliuks Affidavit of the 12th of March, paragraph 32, second sentence, and I quote I proceeded to lift a piece of wood behind the gated arbor, and passed through the gated arbor entrance to access the property. 158. The gated arbor has the mail box on the very accessible street side of the secured gated arbor door; Defendant Andr Murray retrieves mail from the mail box on the out side of the secured arbor door. 159. The gated arbor has the secured arbor door, so that it would be a clear indication to anyone approaching from the street, that this gate is not to be used and the doorways behind the gate are not to be approached, also this gated arbor is customarily secured from the inside, with an practically unreachable board and cannot be reached from the outside without jumping up and possible hanging over the arbor gated door. When this is secured from the inside Defendant Andr Murray has likely departed from the property using the west end door of 31 Marshall Street or the closest door to the street side of the building which is on the north end and side of 29 Marshall Street opposite side of the building from the gated arbor. 160. This doorway described as the front door by Dave Daneliuk a.k.a. David A, Daneliuk in his Affidavit is not used by Defendant Andr Murray and has the number 31 conspicuously displayed above and to the left of the doorway. I only remember using the door once in 4 years time before securing closed with furniture in front of it. On the inside of this same doorway, because of its lack of use as a door has a bench placed in front of the doorway to utilize the interior space most efficiently.

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(Please see Affidavit of David A. Daneliuk Dated October 14, 2009, Book 1, page 640, paragraph 1 and fourth line down.) 161. Note: upon examination of above Affidavit of David A. Daneliuk Dated October 14, 2009, paragraph 1 we see that 31 Marshall Street is erroneously referred to by Process Server David A. Daneliuk as 29 Marshall Street. 162. Process Server David A. Daneliuk stated in his Affidavit of the 12th of March, Record on Motion, page 1333, paragraph 28: Moreover, I noted a black cat left locked in a porch beside the door that I left the papers taped to. 163. (Please see Record on Motion Book1 page 591, Exhibit KK). Above referenced Exhibit KK will be a picture of the door where Process Server Dave Daneliuk a.k.a. David A, Daneliuk evidently believed was 29 Marshall Street, despite the clearly marked 31 indicating civic address and would have been the position the Process Server was standing when he observed the cat inside a porch; as found referred to above and here within provided excerpt of his Affidavit of the 12th of March, paragraph 28: Moreover, I noted a black cat left locked in a porch beside the door that I left the papers taped to. 164. Documents left at this 31 Marshall Street door would have been shielded by the building from view by a casual glance from the gated arbor prior to entering 29 Marshall Street. I Andr Murray suggest this is hardly conspicuous and not in accordance with Rules of Court 18.09(b) the document was left so that it would have come to the notice of the person sought to be served, except for his own attempts to evade service.

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165. Service Processor Dave Daneliuk would have had to ignore the two most likely used doors, one of which is closest to Marshall Street, which if any documents had been left there, would have come to the attention of anyone driving or walking by the building heading east on Marshall Street. Instead Dave Daneliuk must have had to walk around a 100 foot long building, through dense 12 foot high bushes, not cleared for foot traffic to pass and walk out of sight into a 10 foot deep recessed alcove where a door with the number 31 is clearly indicated, on the wall beside the door of the property and leave an envelope at the door of this least conspicuous place. Or as Dave Daneliuk stated in his Affidavit of the 12th of March, Record on Motion Book 3, page 1333, paragraph 32, second sentence, and I quote I proceeded to lift a piece of wood behind the gated arbor, and passed through the gated arbor entrance to access the property. 166. Defendant Andr Murray believes that the unlatching of a secured door is very odd behavior, unlocking locked doors is not generally considered socially accepted behaviour, furthermore is not the behaviour of anyone who as this person is later postulating that he was in danger of loss of life or similar danger from likely confrontation with Andr Murray. However, doors are locked and secured for a reason. Furthermore, unlatching of the secured gated arbor door would require an athletic manoeuvre of great agility and skill. 167. It is worthy to note that, had a document been taped to this 31 Marshall Street door or left at the base of the door, the document could not be seen from the gated arbor, because of the set back and recessed position of this subject door. ( Please see Record on Motion, Book 1 Page 580, 590 and 591 ).

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168. In Wright v. Czinege, 2008 BCSC 1292 (CanLII) The Honourable Madam Justice Humphries stated the following: [33] Counsel for the petitioner argues that it is settled law that if a claimant fails to serve a defendant with an originating process in accordance with the relevant statutory requirements - including any order for substitutional service made under them and subsequently obtains a default judgment based on the defendants failure to respond, then the default judgment is a nullity. The defendant in this case was therefore entitled to have the default judgment set aside as of right. The provincial court judges determination that he could properly apply the discretionary tests in Miracle Feeds was in error. [34] Counsel for the petitioner submits that on a jurisdictional issue, the standard of review is one of correctness, but even if it is reasonableness, the orders and decisions in this case do not meet that standard.

[44] above: 1.

I take the following principles from the cases referred to

requirements for service must be strictly adhered to; service improperly effected is no service; evidence that the proceedings have come to the attention of the other party is not a substitute for proper service; failure to serve proceedings results in any consequent order being nullity; the opposing party is entitled to have such an order set aside as of right; the discretionary considerations set out in Miracle Feeds do not apply to applications to set aside default judgments where proper service was not effected.

2.

3.

4.

5.

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[45] While the detailed review of the law which was provided to me is of assistance, it must be mentioned, in fairness to the provincial court judge who declined to set aside the default judgment, that these cases were not provided to him. There was no issue taken before him with the relevance of the tests set out in Miracle Feeds to the application to set aside the default judgment. 169. Intended Appellant Andr Murray argues, that it is settled law that if a claimant fails to serve a Defendant with an originating process in accordance with the relevant statutory requirements, including any order for substitutional service made under them, (which the order for substitutional did not exist at the time of the alleged October 13, 2009 substitutional service, the Order for substitutional service was only granted October 20, 2009) and subsequently the Plaintiffs did obtain a default judgment based on the Defendant Andr Murrays failure to respond, then the default judgment is a nullity. The Intended Appellant did request of the Learned Trial Judge to set aside the order for validation of substitutional service, it is an error in law that the Court, considering all the above, did not set aside the subject October 20, 2009 Order. 170. In regard order item number 6, of the October 20, 2009 subject Impugned Order I suggest it would be a miscarriage of justice to award the Plaintiff with monetary awards in light of the fact that the Solicitor for the Plaintiffs George H. LeBlanc lied not once, not twice but three times directly verbalized the lies in response to Honorable Justice Zol R. Dionnes pointed questions on the matter; when considering that Solicitor George H. LeBlanc deceived Honorable Justice Zol R. Dionne, then reconfirmed the lie three times, then placed the lies in writing for Justice Zol Dionne to sign in the from of the Court Order Date Oct 20th, 2009. Maxim - Let no one be relieved or gain an advantage by his own fraud.

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171. The shear volume of blatant irregularities of Service and procedure, to the extent by which they occurred in these circumstances, which consequentially, gained the Plaintiffs an unfair opportunity to have an ex parte hearing, to the further prejudice of the Defendant Andr Murray, causes the merits of an award of cost to the Plaintiff to be unfounded. Maxims - Ex multitudine signorum, colligitur identitas vera. From the great number of signs true identity may be ascertained. Bacon's Max. in Reg. 25. 172. The shear volume of blatant irregularities of Service and procedure, consequentially, gained the Plaintiffs an unfair opportunity to have an ex parte hearing, circumstances and actions reveals that Justice could not have been attained when the Court was being misled by the Solicitors for the Plaintiffs consequentially, causing the Defendant Andr Murray to not have a fair opportunity to defend. Frustra legis auxilium quaerit qui in legem comittit He who offends against the law vainly seeks the help of the law. 173. It does not seem reasonable or just that the Plaintiffs would first mislead and deceive the Honorable Court (by erroneously and false SWORN AFFIDAVIT) to gain an advantage over the Defendant then once and after the Plaintiffs deception is revealed to the Honorable Court, the Plaintiffs would be considered genuine and allowed to maintain their position. 174. Question - If the Plaintiffs position was so strong, why would the Solicitor for the Plaintiff act in a manner that created such situations which caused the Defendant such disadvantage? The probable answer would likely be that the Solicitor for the Plaintiff was unaccustomed to resistance in these

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matters; the saying attributed to Publilius Syrus of : Familiarity breeds contempt This may become a difficult or persistent problem once tenants begin to resist the unfair treatment that Solicitors like George H. LeBlanc and Hugh J. Cameron have become apathetic too. Defendant Andr Murray is sure that most families would have no choice, but to minimize the damage and or suffering; protecting their bottom line bank account and credit they would pack their belongings and move out; as an alternative to incurring a mountain of legal fees, hiring lawyers to defend the just cause; even more uncommon is for a Defendant to represent himself in these matters. 175. In Campeau v. Campeau, 2005 CanLII 25948 (ON S.C.) Madam Justice J. Mackinnon considered a case where the Respondents moved to set aside a final order made by Justice Lalonde J. on March 7, 2005, after an uncontested trial, and an order made by him without notice was issued. Madam Justice J. Mackinnon commented of ex parte application and the duty of solicitors by stating: (underline emphasis is added by Andre Murray) [19] Although this case involves an uncontested trial, not an ex parte order, I agree with the comments made by Power J. in Mueller_Hein Corp. v. Donar Investments Ltd. [2003] OJ 2302 (SCJ), at paragraphs 50,52 and 53 with respect to ex parte applications: In addition, the judge will be familiar with and can take comfort in the knowledge that solicitors are members of a self_governing profession and are subject to the following relevant rules of professional conduct: (a) Pursuant to Rule 1.03, under the heading Standards of the Legal Profession, a lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public, and other members of the profession honourably and with integrity;

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(b) Notwithstanding that in adversary proceedings, the lawyers function as advocate is openly and necessarily partisan, a lawyer, in civil matters, should avoid and discourage the client from resorting to attempts to gain advantage from slips or oversights not going to the merits, or from tactics that will merely delay or harass the other side; (See the commentary under Rule 4.01(1) The lawyer as Advocate) (c) In civil proceedings, the lawyer has a duty not to mislead the tribunal about the position of the client in the adversary process; (Again, see Rule 4.01(1)). (d) Rule 4.01(2) states, among other things, that when acting as an advocate, a lawyer shall not knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime or illegal conduct; (e) Under the heading Responsibility to Lawyers and Others the rules of professional conduct oblige a lawyer to avoid sharp practice and states that the lawyer shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other lawyers not going to the merits or involving the sacrifice of a clients rights; (Rule 6.03(3)). (f) Rule 10(3) entitled The Lawyer as Advocate provides as follows: (i) In adversary proceedings the lawyers function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (save as required by law or under subparagraph 2(h) and paragraph 9 above) to assist an adversary or advance matters derogatory to the clients case. When opposing interests are not represented, for example in ex parte or uncontested matters, or in other situations where the full proof and argument inherent in the adversary system cannot obtain, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the clients case as to ensure that the court is not misled. In my opinion, even where it is arguable that a particular order, rule or statute may authorize the launching of an ex parte motion,

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a solicitor must look at the broader picture and ask him/herself whether, as an officer of the court and as a professional, the better practice would be to give notice so that those adverse to the interests of the moving client will be afforded an opportunity to place his or her position before the court. This decision is particularly easy where the solicitor can conclude with some reasonable certainty that, when the ex parte order comes to the attention of an adverse party, that party, or person, will probably move to set aside the order. Quite apart from being aware of and complying with the aforesaid rules of professional conduct, counsel must also seek to avoid unnecessary expenses and duplication. Our adversarial system cannot properly function unless counsel conduct themselves in a professional manner and unless courts are satisfied that, indeed, they are doing so. Lawyers must be able to confidently assume that their colleagues will not act in a fashion designed to improperly take advantage of a situation in order to gain an advantage. [20] I also agree with Rutherford J. in Provenzano v Provenzano, Endorsement, Court File No. 02-FL-1674 (2004/01/29) where he states at paragraph 11:

As I said on the record on January 13 in setting aside the November 25th order, had I known that the parties, through their lawyers, were in active communication about their dispute, I would never have considered the matter ex parte. In failing to disclose his dealings with Mr. Cohen and in telling me that the respondent was simply ignoring the litigation, Mr. Quinn acted unreasonably and contrary to his professional duty, both to the Court and to a fellow solicitor. [21] Provenzano, too, was a case where an ex parte order had been sought. Nonetheless, in the circumstances of this case, where counsel is writing, trying to determine the date of service in order to avoid default, opposing counsel should provide the date and should not leave a judge with the impression that the Respondents have simply been ignoring the courts process. I have not been persuaded that it is a sufficient answer in this case to say that the Respondents had the documents. The Rules of the court and the judges order required personal service. Mr. Appotives inquiries were reasonable and ought to have been answered.

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[22] Nor is it necessary for me to determine whether the Respondents had or had not been personally served with the fourth amended application, in order to decide whether the default has been adequately explained. In this case it has been explained by the inquiries made by Mr. Appotive and the non-responsive answers that he received. [23] Finally, I am also satisfied that the Respondents have shown an arguable defence on the merits. The statements made and supporting documents filed, on their face, if believed, provide an arguable defence to the claim. [24] For these reasons the orders made by Lalonde J. dated March 7 and 16, 2005, are set aside as against these Respondents. The time for delivery of their answer is extended until June 15, 2005. The certificate of pending litigation should remain on title until these proceedings are concluded or a judge orders it removed. 176. In summary: Maxim - Verba chartarum fortius accipiuntur contra proferentem The words of deeds are to be interpreted most strongly against him who uses them. 177. The circumstances which required an abridgement of time for service of the documents would have been unnecessary had the Solicitor George LeBlanc made genuine effort to contact Defendant Andr Murray through phone, e-mail or regular mail that the subject Documents existed, which where to be served on Defendant Andr Murray. After failing to Process Serve Defendant Andr Murray the just and fair action that any Officer of the Court should have done, in Defendant Andr Murrays humble view, was to adjourn the hearing until after successful service was accomplished. Maxim - Injuria non excusat injuriam One wrong does not justify another.

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178. The Plaintiffs Solicitor George LeBlanc embodies the maxim: One wrong does not justify another Erroneous claims by Solicitor George LeBlanc that Defendant Andr Murray was avoiding service did not justify Solicitor George H. LeBlanc misrepresenting and omitting the facts before the Honorable Court, further, that, the Amended Notice of Motion had not been served on the defendant, nor did Solicitor George LeBlanc announce the fact that the Defendant Claimed to have the protection of a Residential Leasehold in the circumstances presented before the Honorable Court on October 20, 2009.

Maxim - In pari causa potior est condition possidentis Everyone may keep what he has got, unless and until someone else can prove a better title. 179. Solicitor George LeBlanc possessing knowledge of the fact of a legal Residential Leasehold Tenancy existing for 29 Marshall Street Fredericton, further, that with this knowledge, Solicitor George LeBlanc was aware that the tenancy existed as a year to year lease held by Defendant Andr Murray; Solicitor George LeBlanc misrepresented the facts and claimed there was no Color of Right, or claim of Leasehold title, by Defendant Andr Murray and Solicitor George LeBlanc did not mention the Residential Leasehold Tenancy of Defendant Andr Murray before the Honorable Court hearing on October 20, 2009. The Plaintiffs have yet to prove their claim and provide proof of claim, that the R.B.C has the Legal Standing to lawfully cause the eviction of Defendant Andr Murray from the premises to which Andr Murray is entitled to by Law, under the Residential Tenancies Act of New Brunswick. 180. Solicitor George H. LeBlancs crown achievement and a most amazing hypnotic Amended Notice of Motion utilizes the pretense, that the Honorable

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Court is receiving a Amended Notice of Motion, as Solicitor George H. LeBlanc, would have us believe, further that it is necessitated because his Process Server Dave Daneliuk a.k.a David A. Daneliuk is hard done by essentially a Squatter Defendant Andr Murray, who refuses to accept service, and is successfully avoiding service, by hiding inside an entirely boarded up house as is alluded in Solicitor George H. LeBlancs October 16, 2009 Court Brief and we are subsequentially, lead to believe that because of the imaginary boarded house, further, the imaginary Dangerous Squatter Defendant Andr Murray who we are to believe is lurking around inside, refuses to accept process service; this chimerical fantasy spun by Solicitor George H. LeBlanc which is found through out the Affidavits ( to one degree or an other) of all agents, associates, and assistants of the lawyers Solicitor George H. LeBlanc and Hugh J. Cameron who appear to be the writers / directors of the same script that they themselves wrote and are directing as all situations develop around these same ridiculous slanderous themes. 181. That a poor frustrated and scared for his life Process Server Dave Daneliuk urgently attempts to Process Service Squatter Defendant Andr Murray, time has become of the essence, since Defendant Andr Murray is further blamed for having employed avoidance techniques. 182. It is not enough to settle with avoidance of service rhetoric as Process Server Dave Daneliuk falsely accuses and alleges Defendant Andr Murray to be dangerous and as a prolific shoplifter of chocolate bars is apparently capable of concealing non sensible quantities of chocolate bars (as found in the Affidavit of Process Server Dave Daneliuk) Defendant Andr Murray apparently has extraordinary powers of concealment, marked by abundant inventiveness or productivity as Process Server Dave Daneliuk claims by

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Affidavit that he witnessed, while working as a floor walker in a grocery store, allegedly witnessed an attempt to some how, conceal 100 chocolate bars. 183. Defendant Andre Murray apologizes to this Honorable Court for reviewing such absolute non-sense as had been the aspersions against Defendant Andre Murray. further irresponsible contentions abound- that Solicitor George H. LeBlanc is worried for the safety of his Process Server and the imaginary boarded up building that Defendant Andr Murray may some how damage the imaginary boarded up house; these allusions are found in the Court brief of October 20, 2009 hearing of Motion for Orders to vacate 29 Marshall Street as offered by Solicitor George H. LeBlanc; as the scenario unfolds, we are to believe that Solicitor George H. LeBlanc, (consistent with his regrettable interpretations of the situation, filled with pockets of obscurity in meaning) Solicitor George H. LeBlanc must now and appears to be left without any choice except to be requesting that a substituted service pursuant to Rule 18.04 is urgently required and necessary because Defendant Andr Murray has avoided Service.( a falsehood ). 184. Defendant Andr Murray is at a loss to explain what is the cause of these wild distortions of reality by Solicitor George H. LeBlanc, as it is not explainable by Defendant Andr Murray except this is occurring, with regularity and including wild contentions, that include (As found in the brief of Solicitor George H. LeBlanc) that Defendant Andr Murray is living in an House which is entirely boarded up! 185. Defendant Andr Murray has to date been forced to experience anxiety as Defendant Andr Murray cannot imagine the next possible course of action planned in the diabolical mind of Solicitor George H. LeBlanc.

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186. This Honorable Court has witnessed that which was created; a fraud upon the Court; as Solicitor George H. LeBlanc, spun his spontaneous narrative of reports of events, that never happened, and then the same scenarios, are used to justify a AMENDED NOTICE OF MOTION requesting validation of service pursuant to Rule 18.09, as of the date of posting a copy of same at the door of the premises located at 29 Marshall Street; Solicitor George H. LeBlanc while maintaining obscurity, through his interpretations of the fabricated events, that appear to accurately represent reality, by theses means, Solicitor George H. LeBlanc further deceived the Honorable Court. 187. The Amended Notice of Motion amended this 14th day of October, 2009 Date Stamped Filed by the Court, October 15, 2009, was further supported by Affidavits containing false allegations of Defendant Andr Murrays avoidance of Service and alludes to much else, while the Honorable Court may have been distracted by the elaborated and embellished Affidavits; Defendant Andr Murray empathizes and therefore comprehends the pressure being applied that may have Motivated the Honorable Court by its sense of responsibility, to grant the Orders as requested within the above here within Amended Notice of Motion of October 15, 2009; please find below an actual excerpt of Solicitor George LeBlancs Chimerical Brief/ Submission to the Honorable Court, October 20, 2009; please see Record on Motion Book 1, page 560, brief page 8, PART III ARGUMENT: Paragraph 36) the property has essentially been held as hostage, and the property is at risk. It is not insured, it is boarded up, and no one knows what the condition of the property is or will be. 188. The above provided excerpt Brief/ Submission of Solicitor George LeBlanc continues to mislead this Honorable Court; further supported by the

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actual deceptive answers given in response to Honorable Justice Zol R. Dionnes pointed questions, at the October 20, 2009 Motion hearing, Solicitor George H. LeBlanc did deceive the Honorable Court in responding, not once, but several times, as the Honorable Court repeated the same Question regarding the matter of the Amended Notice of Motion having been included in the substituted Service occurring October 13, 2009; Solicitor George H. LeBlanc each and every time the question was posed by the Honorable Court Solicitor George H. LeBlanc replied in the affirmative Thats right! therefore purposely deceiving the Honorable Court to thereby falsely believe that the Amended Motion which had not been Date Stamped, Filed by the Court until October 15, 2009 Please realize that the Honorable Court was tricked into Validating service of Court Documents (Amended Notice of Motion Date Stamped, Filed by the Court October 15, 2009) as having been process served October 13, 2009 two full Calendar days before the Court Documents actually existed. b) That the Court approve of substituted service pursuant to Rule 18.04 and /or validation of service pursuant to Rule 18.09 of the Rules of Court of New Brunswick, by posting a copy of the Notice of Action with Statement of Claim Attached, and the Notice of Motion with supporting Affidavits to the door of the residence located at 29 Marshall Street, Fredericton, New Brunswick, to be effective on the date so posted, c) That the court abridge the time required for Service of the within Notice of Motion pursuant to Rule 3.02 of the Rules of Court, 189. May it please this Honorable Court Defendant Andr Murray wishes to point to the above, found here within Order as requested Rule 3.02 does not request, nor does it address the matter of the Amended Notice of Motion

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According to the Rules of Court the time limits for serving a Notice of Motion before a Hearing of that particular Motion where not adhered to; 190. To Defendant Andr Murray, it also appears less than plausible, that as the Plaintiffs Solicitor George H. LeBlanc had stated that Notice of Action with Statement of Claim Attached and the interim Notice of Motion had not come into the hands of Solicitor George H. LeBlanc and back from the Office of the Clerk of the Court of Queens Bench Moncton, not until after 19 calendar days had expired, from Filing of same as September 18, 2009 furthermore as currently comprehended not reasonably before October 17, 2009. 191. Taking into account the shear volume of irregularities and in what Defendant Andr Murray considers to be the unique circumstance of this case, Defendant Andr Murray believes it is in the interest of justice and necessary to avoid a miscarriage of justice, to set aside all six Orders in this judgment. Maxim - What a man does by the agency of another is his own act. 192. Great prejudice occurred, when, without any prior Notice, whatsoever, Defendant Andr Murray was evicted from his home; Fredericton Deputy Sheriffs, enforced Court Orders granted to the R.B.C and where assisted by three uniformed Police Officers of the City of Fredericton, also in attendance was Gino Duguay Property Recovery agent allegedly commissioned by The R.B.C. The following occurred, without prior Notice to Defendant Andr Murray; as such eviction (without prior Notice) was possible, because a fair trial and or hearing of the subject matter had not occurred. Ignorance of the Law, is not to be considered a lawful or legal excuse, whether actions are undertaken by the Plaintiffs or agents acting on their behalf.

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Defendant Andr Murray who is a Residential Leasehold Tenant pursuant to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2 furthermore, is in Good Standing therefore, sheltered pursuant to the aforementioned; Tenancy Act; of New Brunswick. The Honorable Court is best to make a decision on all such matters, subsequent to a open and well balanced presentation of the evidence and argument is made from all parties to the action. 193. Solicitor George LeBlancs chimerical Brief/ Submission to the Honorable Court, October 20, 2009; Record on Motion Book 1, Page 560, PART III ARGUMENT: Paragraph 36) the property has essentially been held as hostage, and the property is at risk. It is not insured, it is boarded up, and no one knows what the condition of the property is or will be. 194. Defendant Andr Murray categorically denies each of the disparaging contentions found in PART III ARGUMENT: Paragraph 36) as provided above, here within. May it please the Honorable Court: the residential duplex at 29 and 31 Marshall Street, Fredericton has never been been held as hostage as Solicitor George LeBlanc would deceive this Court to believe; at the time the above comment been held as hostage was crafted by Solicitor George H. LeBlanc it was abundantly clear to Solicitor George H. LeBlanc that Residential Leasehold Tenant Defendant Andr Murray was a lawful resident living at 29 and 31 Marshall Street, Fredericton; having prepaid his Lease for same. the residential duplex at 29 and 31 Marshall Street, Fredericton has never been the property is at risk as Solicitor George LeBlanc would deceive this Court to believe; this risk component is totally a fabrication of Solicitor George H.

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LeBlancs evident predisposition resulting from his obfuscatory mind; the residential duplex at 29 and 31 Marshall Street, Fredericton has never been It is not insured as Solicitor George LeBlanc would deceive this Court to believe; Defendant Andr Murray maintains Full - Coverage insurance on both 29 and 31 Marshall Street, Fredericton to this date; the residential duplex at 29 and 31 Marshall Street, Fredericton has never been it is boarded up as Solicitor George LeBlanc would deceive this Court to believe; of all of the non truth statements found above contained, here within, PART III ARGUMENT: Paragraph 36) this it is boarded up statement made by Solicitor George LeBlanc is a most blatant deception, as this residential duplex at 29 and 31 Marshall Street, Fredericton has never been it is boarded up since Residential Leasehold Tenant Defendant Andr Murray has resided at 29 and 31 Marshall Street, Fredericton, September 1, 2005. the residential duplex at 29 and 31 Marshall Street, Fredericton has never been and no one knows what the condition of the property is or will be. as Solicitor George LeBlanc would deceive this Court to believe; Solicitor George LeBlanc as early as July 2009, had been reassured by way of extensive telephone conversation between the Resident at 29 and 31 Marshall Street, Fredericton and Leasehold Tenant Andr Murray as to the secure condition of the property.

195. Any reasonable man must be able to recognize the implications of making such irresponsibly invidious statements as are found within Solicitor George LeBlancs Brief/ Submission PART III ARGUMENT: Record on Motion Book 1, Page 560, Paragraph 36); 196. Paragraph 36) is only one paragraph, of many, which are indicative; Solicitor George LeBlanc never had a reason to tell the indisputable truth of the matter, because, Solicitor George LeBlanc must have confidentially believed

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that Defendant Andr Murray would never make an appearance, at the Honorable Court for the hearing of the Motion scheduled for October 20, 2009 results of which could and did cause Defendant Andr Murray to be evicted; George LeBlancs Brief/ Submission would never have been able to with stand a Counter Claim and or argument from Defendant Andr Murray; this must be the reason Solicitor George H. LeBlanc attempted to ad hominem lowering in reputation/detracting from the character or standing of Defendant Andr Murray before the Honorable Court as Solicitor George H. LeBlanc relentlessly and recklessly defamed Defendant Andr Murray by reports, that falsely alluded to Defendant Andr Murray as a Squatter appearing to trespass by living in an house that it is boarded up a entirely false statement not founded in fact, as no windows or doors are now or ever where boarded up as Solicitor George LeBlanc has attempted to deceive this Honorable, to believing; to harm the reputation of Defendant Andr Murray by libel or slander why was Solicitor George H. LeBlanc so liberal with derogatory remarks designed to depreciate Defendant Andr Murray by indirect means not expected, as where offered to the Honorable Justice Zol R. Dionne October 20, 2009 ex parte hearing of a Motion for Orders, to vacate 29 Marshall Street, Fredericton? 197. Solicitor George LeBlanc must have been confident, that Defendant Andr Murray would not make an appearance; consequently, the deception of the Honorable Court by Solicitor George LeBlancs numerous erroneous claims could not and or would not be counter claimed by Defendant Andr Murray. 198. Defendant Andr Murray must point out that, prior to October 20, 2009 and following the July 16, 2009 Auction of the Mortgagee Deed, Solicitor George H. LeBlanc, had vigorously, by telephone and email correspondence, attempted to negotiate many different and conflicting contractual arrangements,

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which all would have required the surrender of Defendant Andr Murrays protections assured him pursuant to the Residential Tenancies Act, Acts of New Brunswick, 1975, c.R-10.2, s.9) The Order October 21, 2011 199. The factual findings made by the Learned Trial Judge should not be accepted, because the Intended 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. 200. The entitlement of NOTICE is based on a fundamental principle of justice within the rules of law. There is fundamental right to NOTICE of an upcoming hearing involving the adjudication of the rights of an individual. The logic involved with the principle that a person is only bound by an order, after being given the opportunity to speak to the matter in his defense and upon receiving NOTICE thereof, is enshrined in our law. 201. Skipping proper NOTICE, cannot be justified either on the basis of administrative convenience or by any need at the review state of the proceedings to override the principles of natural justice. The entitlement of NOTICE is based on a fundamental principle of justice within the rule of law Paragraphs 122 and 123 202. The Intended Appellant did provide the Court ample evidence that both the Process Server and the Solicitor representing the Plaintiffs did lie regarding service of the subject Court documents, namely the Plaintiffs Motion as Amended. Because of the actions or lack thereof of the Intended Respondents the Intended Appellant did fail to appear at a scheduled October 20, 2009

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hearing because of insufficient NOTICE and most likely as the result of a carefully executed and or contrived method devised by the Plaintiffs. 203. Both the Process Server and the Solicitor representing the Plaintiffs did file subsequent RETRACTION Affidavits after the Intended Appellant, pointed out certain irrefutable facts, namely that the Intended Respondents affidavits conflicted with each other, regarding how, when and what affidavits and other documents where served on the Intended Appellant. 204. It was established that the Intended Respondents had never actually served the Amended Notice of Motion at any time whatsoever. The Solicitor for the Intended Respondents did admit this lie and apologized by affidavit for this obvious error. Unfortunately the Solicitor for the Intended Respondents had before that denied the allegations and claimed that the Solicitor for the Intended Respondents had not lied to the Court regarding same. 205. It was established that the Process server for the Intended Respondents had never actually served the subject Court documents at the door of 29 Marshal Street on October 13, 2009, the at any time whatsoever. It was established that the Court document claimed to have been served by the Process server for the Intended Respondents were found by the Intended Appellant at the base of the door of 31 Marshal Street, at a door rarely used by the Intended Appellant. The Process servers own affidavit evidence did corroborate the Intended Appellants claims. The process servers Affidavit testimony was found to full of lies and cartoonish exaggerations. 206. The learned trial judge did make rulings contrary to the evidence presented and the case law to support these the Intended Appellants arguments.

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207. The following case example (hereby provided for reference) as presented to the Learned Trial Judge illustrates the setting aside of an Order, that which (as the example illustrates) was served on the Defendant (in that example case) by way of Substituted Service. The Order of Substituted Service (in that matter) was not exactly complied with according to Rules of Court, consequentially (it would appear) the lack thereof, the disputed Order was claimed to not have come to the attention of the Defendant; consequently the Defendant did not appear at the original scheduled hearing. After review of the material, Madam Justice Humphries stated the decisions are set aside, and the proceedings will continue in the Small Claims division of the provincial court, as if default judgment had not occurred. Honourable Madam Justice Humphries states Counsel for the petitioner argues that it is settled law that if a claimant fails to serve a defendant with an originating process in accordance with the relevant statutory requirements - including any order for substitutional service made under them - and subsequently obtains a default judgment based on the defendants failure to respond, then the default judgment is a nullity. The defendant in this case was therefore entitled to have the default judgment set aside as of right. 208. In Wright v. Czinege, 2008 BCSC 1292 (CanLII), Honourable Madam Justice Humphries, regarding requirements for service, stated that requirements for service must be strictly adhered to; for that reason, service improperly effected is not service at all, from paragraph 32 through to and including paragraph 55: [32] The petitioner submits that the issue for consideration by this court is one of the small claims Courts jurisdiction to grant default judgment in these circumstances and frames it this way:

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When a claimant relies upon an order for substitutional service to effect service of a Notice of Claim but fails to serve the Notice of Claim on a defendant in accordance with the terms of the order, can the court grant the claimant a default judgment against the defendant for failing to file a Reply to the Notice of Claim? [33] Counsel for the petitioner argues that it is settled law that if a claimant fails to serve a defendant with an originating process in accordance with the relevant statutory requirements _ including any order for substitutional service made under them and subsequently obtains a default judgment based on the defendants failure to respond, then the default judgment is a nullity. The defendant in this case was therefore entitled to have the default judgment set aside as of right. The provincial court judges determination that he could properly apply the discretionary tests in Miracle Feeds was in error.

. [43] In Michalakis v. Nikolitsas (2002) BCSC 1708, default judgment was granted in small claims court at a settlement conference against a defendant who subsequently showed that he had not been served with notice of the conference. The provincial court judge refused to set aside the judgment, drawing a distinction between service of an originating process and an interlocutory process. On judicial review, this court stated that there is no such distinction. Having found that process had been taken against a litigant without notice where notice was required, it was not a case for the exercise of discretion. The judges refusal to set aside the default judgment was contrary to the rules of natural justice, patently unreasonable, and could not stand. [44] above: 1. I take the following principles from the cases referred to

requirements for service must be strictly adhered to; service improperly effected is no service; evidence that the proceedings have come to the attention of the other party is not a substitute for proper service;

2.

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3.

failure to serve proceedings results in any consequent order being nullity; the opposing party is entitled to have such an order set aside as of right; the discretionary considerations set out in Miracle Feeds do not apply to applications to set aside default judgments where proper service was not effected.

4.

5.

Result [55] Counsel for the defendant/petitioner suggested that if she were successful in her argument and the default judgment were set aside, she would acknowledge service on behalf of the defendant, file a Reply, and assist in bringing the proceedings to completion before the provincial court. In the alternative, the matter could be directed back to the small claims court for reconsideration in light of this courts reasons. M.A. Humphries J. The Honourable Madam Justice M.A. Humphries

209. The Intended Appellant asserts that the Learned Trial judge did make a number of material errors in law, while arriving at the Courts decision regarding rescinding the October 20, 2009 Orders, pursuant to Rules of Court Rule 37.06. The Intended Respondents did fail to serve the Intended Appellant with an originating process in accordance with the relevant statutory requirements _ including any order for substitutional service made under them and subsequently did obtain a default judgment based on the Defendants failure to respond, then the default judgment should be considered a nullity, further the Intended Appellant in this case was therefore entitled to have the default judgment set aside as of right.

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210. The Intended Appellant brought the Learned Trial judges attention the case of Hightime Investment Property Ltd. v. Bromley, 2008 BCSC 1353 (CanLII) the question of whether service occurred or did not is examined by review of contrasting affidavits, as well as the unique circumstances in which the courts discretion under Rule 17(9) to set aside a judgment should be exercised, even when all the requisite elements of the Miracle Feeds test have not been satisfied by the applicant, if it would be an injustice to do otherwise. The Honourable Mr. Justice Sigurdson stated: [60] Whether Mr. Bromley was served is a question of credibility. The issue is difficult because of the sharply conflicting affidavits. [61] I am entitled to consider the surrounding circumstances when assessing credibility to determine which version is more likely to be true. The well_known case of Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357, [1952] 4 W.W.R. 171 (B.C.C.A.) stated: In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

211. Further to the above: fundamental concepts that the ex parte order is obtained periculo petentis so that if there has not been made to the Judge a full and frank disclosure of relevant facts, the order will be voided. 2. Disclosure Obligation on an Ex_parte Application

[155] On an ex_parte application, it is well settled that the applicant must make full disclosure to the presiding judge. [156] In Evans v. Silicone Valley IPO Network, 2004 BCCA 149, 24 B.C.L.R. (4th) 69, a case relied on heavily by the applicant, Donald J.A. summarized the applicable principle this way at 32:

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There is no disagreement between the parties on the principles of disclosure. The rule on ex parte applications (which was the nature of the proceeding on 18 December 2002) was described in the frequently cited decision of Wilson J., later C.J.S.C., in Gulf Islands Navigation Ltd. v. Seafarers International Union of North America (Canadian District) (1959), 18 D.L.R. (2d) 216 (B.C.S.C.) at 218: I find there is some divergence of judicial thought as to the grounds upon which an ex parte order ought, upon notice, to be discharged. The area of divergence does not include such generally accepted fundamental concepts as this: That the ex parte order is obtained periculo petentis so that if there has not been made to the Judge a full and frank disclosure of relevant facts, the order will be voided. Sheppard J.A. in Kraupner v. Ruby (1957), 7 D.L.R. (2d) 383 at p. 391 cites Scrutton L.J. in Lazard Bros. & Co. v. Banque Industrielle de Moscou, [1932] 1 K.B. 617 at p. 637: "Persons applying ex parte to the Court must use the utmost good faith, and if they do not, they cannot keep the results of their application. To emphasize the strictness with which this rule is applied, see also Re Gedye, (1852), 15 Beav. 254 at p. 257, 51 E.R. 535. [157] Donald J.A. described counsels obligation as that of an officer of the court to disclose any facts which might have influence on the courts decision. At 33, he quoted with approval from McKinnon J.s comments in Money in a Minute Auto Loans Ltd. v. Price, 2001 BCSC 864, 92 B.C.L.R. (3d) 310, where he stated at 12_14: It is trite law to observe that an ex parte applicant must make full and frank disclosure of all material facts to the court and failure to do so allows the court to set the order aside without regard to the merits of the application: Gulf Islands Navigation Ltd. v. Seafarers' International Union (1959), 18 D.L.R. (2d) 625 (B.C.C.A.) ("Gulf Islands"); R v. Kensington Income Tax Commissioners, [1917] 1 K.B. 504 (C.A.). Counsel must also display a high standard of candour and diligence in disclosure: Wilder v. Davis & Co. 1994 CanLII 2239 (BC C.A.), (1994), 92 B.C.L.R. (2d) 385 (C.A.). A material fact is one that may or might affect the outcome of an application: C.P.R. v. U.L.T.U. loc. 144 (1970), 14 D.L.R. (3d) 497

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(B.C.S.C.) at 500 _ 501. It is for the court to decide what is a material fact: Brink's_MAT Ltd. v. Elcombe, [1988] 3 All E.R. 188 (C.A.); Pulse Microsystems Ltd. v. SafeSoft Systems Inc., reflex, [1996] 6 W.W.R. 1 (Man. C.A.). The court also has jurisdiction to set aside an ex parte order on its merits, whether or not there was material misrepresentation, if a person affected by the order applies under B.C.S.C. Rule 52(12.3): also see Martinuik v. Martinuik, 2001 BCSC 424 (CanLII), [2001] B.C.J. No. 588, 2001 BCSC 424 (B.C. Master). An application to set aside the order is heard de novo as to the law and facts of the original application: Gulf Islands Navigation Ltd., (above). [Emphasis added by Donald ___________________________ Further more.

[173] In Lin v. Tang 1997 CanLII 2675 (BC C.A.), (1997), 37 B.C.L.R. (3d) 325, 93 B.C.A.C. 57, Huddart J.A., for the majority, suggested that there may be a residual discretion if a serious miscarriage of justice had occurred. She said, at 58_59: The Supreme Court is currently applying the test developed for setting aside or varying judgments under Rule 17(12), as expressed in Miracle Feeds v. D. & H. Enterprises Ltd. (1979), 10 B.C.L.R. P_58 at P_61 (B.C. Co. Ct), to applications to set aside a judgment made after a trial in the absence of a party. The first requirement for success on such an application is to establish that failure to appear at the trial was not wilful or deliberate: Abbot Construction Ltd. v. Future Way Enterprises Ltd. 1991 CanLII 1861 (BC S.C.), (1991), 55 B.C.L.R. (2d) 186 at 189 (B.C.S.C.). The same test was applied to an application under Rule 25(15) in Bank of Nova Scotia v. Ellis 1981 CanLII 585 (BC S.C.), (1981), 30 B.C.L.R. 397 at 399 (B.C.S.C.). Nevertheless, were I persuaded that the evidence established on a balance of probabilities that a serious miscarriage of justice had occurred, I would feel constrained to set aside a judgment even if it

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were obtained by reason of the defendant's default. I would do so on terms such as those imposed on an application under Rule 18(5) by this court in Lam Company v. O'Lori Holdings Ltd. 1981 CanLII 420 (BC C.A.), (1981), 27 B.C.L.R. 378 (B.C.C.A.). In that case this court required that the defendant provide security for the amount of the judgment and costs. It follows that I would admit the affidavit filed by Mr. Liao on this appeal for the purpose of determining whether he has established a miscarriage of justice on a balance of probabilities. [174] Huddart J.A. went on to say at 64 as follows:

In my view, miscarriage of justice means that which is not justice according to law. A miscarriage of justice will almost always be procedural. The blemish must be such as to make the judicial procedure at issue not a judicial procedure at all: Robins v. National Trust Co. Ltd., [1927] 2 D.L.R. 97 (Ontario P.C.), aff'g (1925), 57 O.L.R. 46 (Ont. C.A.). There was no such blemish here. [175] In Matthes, Macaulay J. indicated at 42 that if such residual discretion exists, it must be exercised sparingly. [176] Miracle Feeds has provided a test by which this court regularly exercises its discretion to set aside a default judgment. That test has met the test of time. However, I think that there may be unique circumstances in which the courts discretion under Rule 17(9) to set aside a judgment should be exercised, even when all the requisite elements of the Miracle Feeds test have not been satisfied by the applicant, if it would be an injustice to do otherwise. [177] In what I consider to be the unique circumstances of this case, is it in the interests of justice, or is it necessary to avoid a miscarriage of justice, to set aside the judgment, notwithstanding my conclusion that the burden to satisfy all of the elements of the Miracle Feeds test has not been made out by the defendant?

H. [190]

CONCLUSION

The order of Wong J. is set aside

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212. The learned trial judge made an error in law and did display a misapprehension of the facts presented by stating that the Defendant did receive sufficient Service of the subject Court documents before the scheduled October 20, 2009 Hearing. Furthermore to the above: fundamental concepts that the ex parte order is obtained periculo petentis (at the risk of the perpetrator) so that if there has not been made to the Judge a full and frank disclosure of relevant facts (such as in this case), the Order should be voided.

213. It is shameful that the Court could disregard the multiple lies regarding service inter alia, which were forwarded by the Intended Respondents (many they have admitted to and many which they had not addressed) and somehow find in their favour anyway.

Paragraph 124 214. For the Court to state that the Intended Appellant made a strategic, decision not to appear at the October 20, 2009, Motion is contrary to the record and (to the Intended Appellants knowledge) not a conclusion asserted by the Intended Respondents. This conclusion reveals to the Intended Appellant, Bias on the par of the Court regarding the Intended Appellant, probably because of the shear volume of ad homonym attacks upon the character of the Intended Appellant which were prolifically provided by the Intended Respondents. This position further illustrates the necessity of the Intended Appellants unheard Motion regarding striking the Intended Respondents Affidavit material which was extremely prejudicial to the Intended Appellants cause.

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215. The Intended Appellant was not provided sufficient Notice according to the Rules of Court nor the principles of procedural fairness. Yet the Learned Trial judge did erroneously state that, the Intended Appellant did receive sufficient Notice, which is untrue and contrary to the evidence in record before the Court. The Court should not be able to wave a right to notice which is enshrined in jurisprudence and an integral part of the foundation of our justice system. It is wrong that the Learned Trial judge disregard the shear volume of irregularities in service, furthermore, the lies which were revealed to have been presented by both the subject process Server Dave Daneliuk and the Solicitor for the Intended Respondent George H. LeBlanc.

216. A further example this Bias was displayed by the Court, August 4, 2011, when the Intended Appellant was late for the scheduled hearing because of mechanical difficulties, in traveling from Fredericton to Moncton, and the Court did erroneously claim that the Intended Appellant did intend to purposely manipulate the Court, which was not true. The unfounded claim by the Court that the Intended Appellant, is disingenuously manipulating a situation instead of, having real mechanical difficulties, is a blatant display of bias towards the Intended Appellant.

217. 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 Intended 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 Intended Respondents position, further, made obviously erroneous statements based on this erroneous information, contrary to the facts of the case. Impartiality is a

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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.

218. The Intended Appellant does claim that the Learned Trial Judge did misapprehend the evidence placed before him. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge, and the errors thus identified must play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a Decision. If an Intended Appellant can demonstrate that the Decision depends on a misapprehension of the evidence then, it must follow that the Intended Appellant has not received a fair trial, and was the victim of a miscarriage of justice.

Paragraph 125 and 126 219. The Court erroneously claimed that abundant and corroborating evidence from affidavits and their schedules was provided to the Court, which allowed the Court to conclude that the Intended Appellant was well aware of a default by the Landlord on a Mortgage, as early as June 2009, which would cause the Royal Bank of Canada to take steps to vacate the Intended Appellant from the Marshall Street, Fredericton, N.B. Property.

220. The truth is that the Intended Appellant did not know that the Landlord had foreclosed on the property, the same property which the Landlord Betty Rose Danielski had contracted with the Intended Appellant to sell to the Intended Appellant pursuant to a contract signed in 2005. Evidence was in fact presented to the Court by the Intended Appellant that Landlord Betty Rose

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Danielski had contacted the Intended Appellant by letter in April 2005, but made no mention of any default on a Mortgage and further did not disclose to the Intended Appellant any upcoming Mortgage Sale.

Paragraph 127 221. The Learned Trial Judge did display a misapprehension of the evidence by claiming that the Intended Appellant did receive service of Registered Mail, specifically a Notice of Mortgage Sale, further the Learned Trial Judge did erroneously stated that the Intended Appellant did make a strategic decision on his part to simply decide not to claim the letter. It is not possible for the Intended Appellant to one the one hand receives service and on the other simultaneously avoids receiving service of this same letter. It can factually be only one or the other. Service or no service, not both as erroneously stated.

222. The Court was provided evidence that the Intended Appellant was having his mail stolen from the mail box at the Marshall Street Residence, and further, a specific incident occurred, where Court documents intended for the Intended Appellant sent from the Intended Respondents were stolen and not returned, the Intended Appellant did provide evidence of this act, but at no point in the decision did the Court mention this very important reoccurring fact.

223. Furthermore, the Learned Trial Judge did display a Reasonable Apprehension of Bias when the Court stated that the Intended Appellant did make a strategic decision on his part to simply decide not to claim the letter. The Intended Appellant was unaware of the subject letter from the Solicitors Office and the Notice was unclaimed from the post office, because of this fact.

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Paragraph 128 224. The Learned Trial Judge did display a misapprehension of the evidence by erroneously stating that the Intended Appellant had communicate with the Solicitor for the Intended Respondents orally and by writing before the July 16, 2009 Mortgage Sale. This fact is in no way true, further The Intended Appellant was at no point before the July 16, 2009 Mortgage Sale told that he would be asked to vacate he premises once the mortgage sale was held. To the Intended Appellants knowledge there was no evidence, or argument ever presented purporting this fact. The courts conclusions are unreasonable, based on a material misapprehension of the evidence, and or tainted by a failure to consider material, relevant evidence.

Paragraph 129 225. The Learned Trial Judge did display a misapprehension of the evidence by erroneously stating that The Intended Appellant was not on July 16, 2009 served with a formal or sufficient notice to vacate the Marshall Street property, which could be considered in accordance with the New Brunswick Residential Tenancy Act. The requirement to terminate a Tenancy pursuant to the New Brunswick Residential Tenancy Act are clearly enumerated and expressed in the act and specifically the letter allegedly pined to the door of a residence is in no way congruent with the requirements under the New Brunswick Residential Tenancy Act.

226. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge, and the errors thus identified must play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a

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Decision. If an Appellant can demonstrate that the Decision depends on a misapprehension of the evidence then, it must follow that the Appellant has not received a fair trial, and was the victim of a miscarriage of justice.

227. The Learned Trial judge did misapprehend the fact, that, the act posting of a Notice to vacate, by a Mortgagee (please see, Record on Motion, Book 1 page 637) has no legal effect whatsoever to a Residential Tenancy, which is pursuant to the New Brunswick, Residential Tenancy Act. There exists no clause whatsoever contained within the New Brunswick, Residential Tenancy Act, which would allow a special privilege to a Mortgagee to act or behave in a way, which everyone else in New Brunswick absolutely cannot. The Intended Respondents did not draw the Courts attention to any section or clause of the New Brunswick, Residential Tenancy Act which would accomplish this. The Learned Trial Judge did make a finding of fact and draw legal conclusion which are contrary to jurisprudence, the evidence and the laws of New Brunswick.

228. Furthermore, service by posting a document to a door of a residence is only considered service if Ordered by the Court, no such order was requested or granted and further non exists. Posting a notice on someones residential door is not and cannot be considered service according to the Rules of Court, unless ordered by the Court, further the Intended Respondents did not request validation of service of the subject documents. The Learned Trial Judge did misapprehend the evidence, as presented and draw legal conclusions which are unsupported by the evidence.

Paragraph 130

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229. The Learned Trial Judge did display a misapprehension of the evidence by erroneously stating that The Intended Appellant was aware that such a motion was coming, there was almost two months of non communication between the Intended Appellant and the Intended Respondents, before the October 20, 2009 Motion hearing. It must be remembered that the Intended Appellant was never in a Court of law, before the commencement of the appeal in response to the October 20, 2009 impugned Order of the Court and was unfamiliar and unaware of Court procedure and process. The Intended Appellant was assured by the Rentalsmen at that time that residential Tenancy matters in New Brunswick were under the jurisdiction of the Office of the Rentalsmen pursuant to the Residential Tenancy Act. When the Intended Respondents backed off so to speak, the Intended Appellant did take this as a sign that the Intended Respondents, were recognizing the supremacy of the Residential Tenancy Act of New Brunswick.

Paragraph 131 -132 230. The Learned Trial Judge did display a misapprehension of the evidence by erroneously stating that The Intended Appellant was making sure he would do whatever was needed to avoid contact with the server and Mr. Murray consciously and actively did everything he could to avoid or at least delay and impede as much as he could the plaintiffs efforts at serving him. The fact is that the process server did repeatedly lie regarding service attempts, (admitted to some of the lies) and filled affidavits full of irrelevant slanderous biased (some hearsay) accusations regarding the Intended Appellant being involved in criminal behaviour, claiming that the process server knew the Intended Appellant personally, and had conversation on previous occasions with the Intended Appellant, which are further lies. Despite this obvious biased conflict

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of interest displayed by the process server Dave Daneliuk, the Intended Respondents continued to utilize the service of this same process server and most importantly every time the process server Dave Daneliuk was involved the Intended Appellant was accused of avoiding service. It is reasonable, that if the process server, was not providing the results that the Intended respondents wanted, then the Intended Respondents would have sought another server to fulfill there needs. Apparently that specific process server was the right man for the job. 231. It is a misapprehension of the Evidence for the Court to conclude the preponderance of evidence favours the view that the Intended Appellant was evading service, when glaring facts have been presented to the Court for consideration, that the Process server has admitted to lying by affidavit, misleading the Court regarding service of the subject Court documents. How could the Court overlook perjury in favour of the Intended Respondents, without revealing a Reasonable Apprehension of Bias.

232. The Intended Respondents did nothing to contact the Intended Appellant for two months before the October 20, 2009 hearing. They the Intended Respondents did not inform the Intended Appellant that the Intended Respondents were attempting to process serve Court documents.

233. The Intended Respondents filed a brief before the October 20, 2009 hearing, painting the Intended Appellant out to be a cartoonistic criminal character, who was hiding inside a dark boarded up house, then not surprisingly the Intended Appellant did not show up to the October 20, 2009 hearing, further reinforcing this carefully crafted skewed view, of the Intended Appellant to the

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Learned Trial Judge. The Learned Trial Judge did display a Reasonable Apprehension of Bias, by not being able to shake off this carefully crafted false impression of the Intended Appellant, despite all the subsequent presented evidence to the contrary.

Paragraph 133 234. The Learned Trial Judge did display a misapprehension of the evidence by erroneously stating that The Intended Appellant despite his many actions at avoiding formal notice Mr. Murray did in fact receive the said documents on October 13, 2009. The Learned Trial Judge did not explain the many actions at avoiding formal notice, being claimed. The Intended Appellant is an artist who travels for Art Commissions and for pleasure, and there is no obligation for a man to be at home, when a unannounced process server is allegedly checking the grass in the front yard for tracks, further considering the facts that the process server was lying about actually being at the property on numerous occasions. The fact is the Intended Appellant only found the subject Court documents on the 22nd of October, two days after the scheduled October 20, 2009 and most importantly, at a different door then was claimed, a door which conspicuously had the number 31 placed above and beside it. 235. Please see: revised AFFIDAVIT of Process Server Dave Daneliuk now calling himself David A. Daneliuk Dated: 12th day of March, 2010, SWORN TO at City of Fredericton, ADDENDUM Record on Motion page 1333, Paragraph 16) Here is the retraction a less than sincere disingenuous excerpt Quote: The reference to a drive-by and attendance on October 5th, 2009 in exhibits A & B was in error. That was not an attempt at service at this

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property, but rather an attempt at service in another unrelated matter, and the reference to that is incorrect. 236. Furthermore the professionalism and judgment of the Process Server Dave Daneliuk must be questioned. Process Server Dave Daneliuk displayed prejudicial dislike of the Defendant Andr Murray as evidenced by slanderous and derogatory remarks in Dave Daneliuks affidavit dated, 14th day of October, 2009. The slanderous remark where made apparently attempting to defame the character of Andr Murray followed by outright deceptive statements which allege the Defendant Andr Murray is a criminal and has views such as dislike of commerce (mind you the Process Server volunteered this biased prejudicial information, before, the intended Appellant even knew about upcoming Court Hearing). As an example in paragraph 4 of the Affidavit sworn 14th day of October , 2009 at the City of Moncton, in the County of Westmorland and the Province of New Brunswick: Dave Daneliuk states: Murray has extreme hatred towards government and big business.

Paragraph 134 237. The Learned Trail Judge conspicuously avoids pointing out the fact that The Solicitor for the Plaintiff R.B.C deceived Justice Zol R. Dionne on Oct 20th, 2009 multiple times about the Service of an Amended Notice of Motion, claiming that it had been served when in fact it never had. 238. At the hearing of the Motion on Oct 20th, 2009 Solicitor George H. LeBlanc asked Justice Zol R. Dionne (Please refer to Transcript of hearing of Oct 20th, 2009, Record on Motion Book 2, page 684 - transcript Page 7, line1):My Lord, just for the record, may I ask the court to confirm that the service of service of the Notice of Action and Statement of Claim, the

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Amended Notice of Motion and the Motion is confirmed as of September 13th? In other words, this part has already been fulfilled. 239. At the hearing of the Motion on Oct 20th, 2009 Justice Zol R. Dionne asked Solicitor George H. LeBlanc (Please refer to Transcript of hearing of Oct 20th, 2009 , Record on Motion Book 2, page 684 - transcript Page 7, line 24): Okay, And so this Court declares as valid and sufficient the service of the Notice of Action with Statement of Claim Attached and that was already made to the defendant, Andr Murray, on thats October 13th? 240. Solicitor George H. LeBlanc replied to Justice Zol R. Dionne (Please refer to Transcript of hearing of Oct 20th, 2009, Record on Motion Book 2, page 684 - transcript Page 8, line 2) September 13th. No, youre quite right, my Lord, October 13th. And that would apply, my Lord, to the amended Notice of Motion and Notice of Motion? 241. Also At the hearing of the Motion on October 20, 2009, Justice Zol R. Dionne asked Solicitor George H. LeBlanc; (Please refer to Transcript of hearing of October 20, 2009, Record on Motion Book 2, page 684 - transcript Page 8, line5) : All these were served at October on October 13th? 242. Solicitor George H. LeBlanc replied to Justice Zol R. Dionne; (Please refer to Transcript of hearing of October 20, 2009, Record on Motion Book 2, page 684 - transcript Page 8, line 7) :Thats right! 243. Also, occurring at the hearing of the Motion on October 20, 2009, Justice Zol R. Dionne asked Solicitor George H. LeBlanc; (Please refer to Transcript of hearing of October 20, 2009, Record on Motion

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Book 2, page 684 - transcript Page 8, line 8) : By leaving a copy stuck to the door. 244. Solicitor George H. LeBlanc replied to Justice Zol R. Dionne; (Please refer to Transcript of hearing of October 20, 2009, Record on Motion Book 2, page 684 - transcript Page 8, line 9) :Thats correct! 245. The evidence is clear, by way of dates on the Amended Notice of Motion which was signed by Solicitor George H. LeBlanc and dated as October 14, 2009 and the Court File Stamp Date of October 15, 2009, from the Court of Queens Bench Trial Division Moncton that service of the Amended Notice of Motion Document could not have possibly occurred on the 13th day of October 2009, as the Amended Notice of Motion Document had not yet been crafted by Solicitor George H. LeBlanc until October 14, 2009. 246. The Learned Trial judge claims that because of distraction or inadvertence that the impossible date would have been noticed yet the Court makes no reference to being repeatedly told by the Solicitor for the Respondents that the impossible was in fact the case.

Paragraph 135 247. The Learned Trial Judge did misapprehend the evidence before him. The Learned Trial Judge cannot state that something is both identical and also different simultaneously. The rules of Court require a Motion to be served upon effected parties; the Court cannot overlook this fact because of convenience. 248. The Intended Appellant contends that the Solicitor for the Intended Respondents did purposely file a Amended Motion instead of a new Motion so

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that the Court would not notice that the motion, was not in fact served, at any time, which according to procedural fairness, would have (and rightly so) required adjourning the hearing of the scheduled Motion until the Defendant was in fact Served. 249. The request for validation of Service, substituted Service and an abridgement of time for Service are requested Orders, which requires formal Notice of Same to affected Parties.

Paragraph 136 250. The Learned Trial judge again avoids pointing out that the reason the Court made the obvious error was because of the prompting request of the Solicitor for the Intended Respondent, being a Officer of the Court, who made the request for validation of the impossible, then placed the impossible event in writing for the Court to sign. It is natural that the Court would be expecting to be told the truth by an Officer of the Court. This being despite the fact that the Amended Notice of Motion was never actually served on the Intended Appellant, at any time before the October 20, 2009 Motion Hearing. To the Intended Appellants knowledge there was never a Affidavit of service ever filled regarding same. Paragraph 137 251. The Intended Appellant brought to the Courts attention that the requirements necessary for the Court to exercise its discretion and approve substituted Service were not in fact met, pursuant to Osburn v. Khoo, 1996 CanLII 1375 (BC S.C.), Honourable Justice Hall stated the grounds on which substituted service may be granted; and further In Marlowe v. Capital Health

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Authority, 2009 ABQB 105 (CanLII) The Honourable Madam Justice J.M. Ross stated the grounds on which substituted service may be granted. The Intended Appellant brought to the Courts attention that the correct course of action should have been to adjourn the scheduled October 20, 2009 hearing until sufficient notice was in fact provided to the Intended Appellant. It was unfair in the circumstances for the Intended Respondents to proceed as they did, there was in fact no emergency which necessitated a immediate hearing on the matter of vacating a property.

Paragraph 138 252. The Learned trial judge did state erroneously that sufficient notice of the scheduled Motion, was provided by e-mail on October 15, 2009, from the Solicitor for the Respondent. The Rules of Court regarding service do not allow for Service by electronic mail on a non Solicitor. Rules of Court Rule 18.07.1 is as follows: 18.07.1 Service by Electronic Mail (1) Where service of a document on a solicitor is authorized under Rule 18.03(2) or where service of a document on the solicitor of record is authorized or required by these rules, the document may also be served by attaching a copy of the document to an e-mail message sent to the solicitors e-mail address in accordance with paragraph (2). Service under this paragraph is effective only if the solicitor being served provides by e-mail to the sender an acceptance of service and the date of the acceptance, and where the e-mail acceptance is received between 4 p.m. and midnight, service shall be deemed to have been made on the following day. 253. Furthermore, besides that fact and evidence to the same, that the Intended appellant did not receive the alleged e-mail form the Solicitor for the Intended Respondents before the scheduled October 20, 2009 hearing, the Intended

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Appellant further, did not at any time, provide an email response indicating acceptance of service and the date of the acceptance, therefore the Rules of Court indicate that Service in this method was not effective. The Learned Trial Judge did misapprehend the evidence before him, and made a finding of fact contrary to the Rules of Court and the evidence on record.

Paragraph 139 254. 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 claiming for Mr. Andre Murray not to have received a 10 day prior notice with respect to the Plaintiffs Amended Motion causes no concern to this Court and the Court is satisfied and declares that the Defendant did receive a sufficient prior notice not only with respect to the initial motion ..but also with respect to the Amended Motion How could the Court claim sufficient notice was provided when the Amended Motion was never actually served at any time. The Learned Trial judge did error in law by claiming, that non service was somehow transformed into a legally valid service. For the Learned Trial Judge to claim that no service causes no concern to this Court raises a reasonable apprehension of bias. The learned trial judge erred in law, further, 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 offered by the Intended Appellant.

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255. The Intended Appellant is entitled to fair Notice like any other Party to a proceeding, further, the Intended Appellant relies, that Natural Justice and procedural fairness which requires administrators adhere to a fair decisionmaking procedure. 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 has any property or legal right compromised by a court of law without having heard that person.

Paragraph 140 256. The Court continues to erroneously claim that the Intended Appellant is doing whatever possible to avoid person to person service of documents further validating the need for the Intended Appellant to have filed a Motion to strike the Intended Respondents Affidavit material, despite the Courts assertions that it was unnecessary and to trust the Court to be able to sort through the material to glean what was in fact relevant. This further enforces the need to have had the Intended Appellants Motion to strike material from the record heard before the Learned Trial Judge, did render, such a decision.

Paragraph 142, 143 and 144 257. The Learned Trial Judge does erroneously claim joint responsibility with the Solicitor for the Respondents for indicating that the Defendant was served with the Amended Motion on October 13, 2009 . If is was not for the misleading statements of the Solicitor for the Respondents (which were to their benefit), the Court would not have been mislead. The Court does display a

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reasonable apprehension of bias, by making a claim which exonerated both the Courts errors and the Solicitor for the Intended Responders conduct, which could and should be considered Fraud upon the Court.

258. 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. The Appellant contends that a reasonable apprehension of bias arose by the fact that the learned Trial Judge only accepted argument and evidence which favoured the Intended Respondents 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.

Paragraph 145 259. The Learned Trial Judge failed to understand the facts and arguments as presented by the Appellant for the Court to claim that there are not legitimate reasons for the Court to Rescind its orders of October 20, 2009. Considering the shear number of irregularities of service and the fact that both the process server and the Solicitor for the Plaintiffs have admitted, to having lied and as a consequence of these lies the Court at the time did grant the Intended Respondents the October 20, 2009 Order they were requesting. 260. The Court did error in law by claiming that an impossibility was in fact possible. The Learned Trial Judge did state that a correction would be made to the October 20, 2009 Order. The correction the Learned Trial Judge claimed was to replace the indication October 13th, 2009 with the indication of

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October 16, 2009, when referring to the date at which the Defendant was served the copy of the Plaintiffs Amended Notice of Motion of October 15th, 2009. The Learned Trial Judge could not claim that the Amended Notice of Motion was served October 16, 2009 because the Amended Notice of Motion was never served at any time to the Intended Appellant. Conclusion Order 3 261. The Intended Appellant did provide the Learned Trial Judge with substantial argument regarding the pertinent facts which were misrepresented to the Court, yet despite this the Learned Trial Judge made no mention of this or instead disregarded the summation of all the corroborated and calculated misrepresentations as being harmless inconsequential errors. 262. The pertinent facts which were misrepresented to the Court, which have been argued, and concluded on the preponderance of probabilities, as false, are as follows: I. Alleging the delay, in the return, from Client Services, of the Plaintiffs Notice of Action and Statement of Claim attached dated September 18, 2009 and Motion dated September 18, 2009; II. Alleging that Service of Notice of Action and Statement of Claim attached dated September 18, 2009, Motion dated September 18, 2009 and supporting affidavits had occurred October 13, 2009; III. Alleging that service of the Amended Notice of Motion, Date Stamped by Client Services October, 15, 2009, had occurred on the Defendant; IV. Alleging that the Defendant was evading service; V. Alleging that the Defendants had no color of right to be a the 29 Marshall Street property,

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VI. Alleging the property has essentially been held as hostage, VII. Alleging the property is at risk,. VIII. Alleging the property is not insured, IX. Alleging the property is boarded up, X. Alleging that no one knows what the condition of the property is or will

263. Maxim - true identity is collected from a number of signs. 264. The defendant relies on the Maxim true identity is collected from a number of signs. The circumstances as understood by the Defendant and presented to the Court is that The Defendant Andr Murray, is a Residential Leasehold Tenant of 29 Marshall Street and 31 Marshal Street, and has caused to be signed, pursuant to the Residential Tenancy Act several leases beginning approximately February 2005, until the final perfected Lease of : September 1, 2005, a Year to Year Lease agreement: FORM 6 STANDARD FORM OF LEASE, for and including the two Duplex civic addresses: 29 Marshall Street, and 31 Marshall Street, of the City Fredericton, N.B. Canada. Absentee Landlord Betty Rose Danielski, having earlier abandoned her recently purchased Residential Duplex property at Marshall Street, in the City of Fredericton, found it appropriate, on November 14, 2002, to appoint Richard Boileau, as Continuing Power of Attorney for Property. Richard Boileau as Continuing Power of Attorney for Property, subsequently as Acting Agent for Landlord Betty Rose Danielski, did sign, thereby authorize a Residential Leasehold to Tenant Andr Murray. The Residential Leasehold is for the Duplex property and premises, bearing civic address 29 Marshall Street and for the property and premises bearing civic addresses 31 Marshall Street, both of the City Fredericton, N.B. Canada.

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265. The existence of the Defendants lease is evidenced by a copy being provided to the Court for consideration, the evidence of the appointment of the Continuing Power of Attorney for Property Richard Boileau, had been provided by the Plaintiffs Solicitor, which corroborated the Defendants position and also validated the fact the Agent for Landlord Betty Rose Danieslki, Power of Attorney for Property Richard Boileau did sign the subject lease, authorizing the Defendant, use of the subject Marshal Street Property, establishing definitive color of right. 266. How could the Plaintiffs have so misrepresented the pertinent facts to the Court which were: the unexplainable Delay in the return, from Client Services, of the Plaintiffs Notice of Action and Statement of Claim attached dated September 18, 2009 and Motion dated September 18, 2009 resulting in a unusual delay, before the beginning of service attempts of the subject documents, on the Defendant, that alleged facts regarding Service of Notice of Action and Statement of Claim attached dated September 18, 2009, Motion dated September 18, 2009 and supporting affidavits, could have been so erroneous and in fact completely untrue, the claim that Service of Amended Notice of Motion Date Stamped, Filed by the Court October 15, 2009, had occurred when it did not, alleging that the defendant was evading service; alleging that the Defendants had no color of right to be a the 29 Marshall Street property, when the Defendant did,

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alleging that the property has essentially been held as hostage, the property is at risk, the property is not insured, the property is boarded up, and alleging that no one knows what the condition of the property is or will be, which was in fact not the case.

267. The following definition of LIE is provided by Merriam-webster.com at the following URL: http://www.merriam-webster.com/dictionary/lie Definition of LIE intransitive verb 1 : to make an untrue statement with intent to deceive 2 : to create a false or misleading impression

268. How many mistaken assertions of fact, can be considered, before we can conclude that the Plaintiffs, and agents acting on the Plaintiffs behalf, have no collective credibility (the quality or power of inspiring belief). The Defendant has pointing out ten separate assertions (more if we consider all the separate sub-lies associated with each assertion), the Plaintiffs have made, than can be qualified as lies (to create a false or misleading impression, or to make an untrue statement with intent to deceive) and at what point can we begin to know that this is not just coincidence, that these separate events have occur simultaneously, that benefit the Plaintiffs, appearing more as a plan of action, or strategy, rather than a series of unconnected coincidences. We must begin to see a pattern emerge, a consistency on the preponderance of probabilities that do, over all, benefit the Plaintiffs or cause a detriment to the Plaintiffs opponents position,

269. The Defendant again contemplates the Maxim true identity is collected from a number of signs, the preponderance of probabilities, (which is whether

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it is more probable than not) weighs in the favor of deciding that it is more probable than not that the Plaintiffs purposefully intended to mislead the Court, following the misrepresentation of the facts, so that the Court would grant the Plaintiffs Order as requested.

270. The Defendant suggests that the preponderance of probabilities, (which is whether it is more probable than not) when weighed, are in favor that the Plaintiffs have purposefully misrepresented the pertinent facts to the Court which were as follows:

271. (1) The claimed Delay of the return, from Client Services, of the Plaintiffs Notice of Action and Statement of Claim attached dated September 18, 2009 and Motion dated September 18, 2009, was a cover for the Plaintiffs to strategically delay, service of the subject documents on the Defendant, leaving the Defendant with little, to no time, to prepare a defense for the scheduled hearing of October 20, 2009. The Plaintiffs corroborated this effort with the absence of communication with the Defendant, so that the Defendant would be taken unawares, or be likely caught up in a last minute panic by the surprising, hearing of the Motion to vacate the Defendant, scheduled for October 20, 2009.

272. (2) That facts regarding Service of Notice of Action and Statement of Claim attached dated September 18, 2009, Motion dated September 18, 2009 and supporting affidavits, are that the Process Server intentionally printed ambiguous mailing information on the subject package and intentionally defaced and damaged the copy Notice of Action and Statement of Claim attached dated September 18, 2009 and Motion dated September 18, 2009 and

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supporting affidavits, before sending them by mail to the Defendant, and further did not in fact deliver the copy of the Notice of Action and Statement of Claim attached dated September 18, 2009 and Motion dated September 18, 2009 and supporting affidavits, to the 31 Marshall Street Property door until on or about October 22, 2009, two days after the October 20, 2009 hearing had occurred. These combined acts, virtually ensured that the Defendant, would not appear at the October 20, 2009 hearing of the Motion, for Orders to vacate the Defendant from 29, Marshall Street, Fredericton, New Brunswick et al.

273. (3) The claim by Solicitor George H. LeBlanc, before the Court on October 20, 2009, that Service of Amended Notice of Motion Date Stamped, Filed by the Court October 15, 2009, had occurred when it in fact did not, and Solicitor George H. LeBlanc must have known otherwise. Solicitor George H. LeBlanc is an seasoned Lawyer with many years of experience, Solicitor George H. LeBlanc himself asked the question, that the Court Validate, Service of the Amended Notice of Motion, ( Date Stamped, as Filed by Court Services October 15, 2009) which must have been on his mind as an issue to be resolved, and despite the opportunity, did not point out that the Amended Notice of Motion ( Date Stamped, as Filed by Court Services October 15, 2009) had not been served, and could not have reasonably have been served with the other documents, which is likely why he was asking that the Amended Notice of Motion ( Date Stamped, as Filed by Court Services October 15, 2009) be validated for service. Instead, when the Court, being vigilant (alertly watchful especially to avoid danger) and following prudent procedure, was asking the Plaintiffs Solicitor George H. LeBlanc, if the subject document the Amended Notice of Motion ( Date Stamped, as Filed by Court Services October 15, 2009) had been served on October 13th, 2009, at the door of 29 Marshall Street with

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the other documents, contrary to what was obviously impossible, Solicitor George H. LeBlanc replied yes, yes and yes. Solicitor George H. LeBlanc further indicated in the October 20, 2009 Order, prepared by him for the Court to sign, that the Amended Notice of Motion, in paragraph 5 and 6, was effectively served and validated as if it was served by posting a copy of same at the door of the premises located at 29 Marshall Street, Fredericton, New Brunswick on October 13, 2009. The Specific paragraphs 5 and 6 of the October 2, 2009 Order are provided below as follows: 4) That service of the Notice of Action with Statement of Claim Attached, Notice of Motion, Amended Notice of Motion, and any Order of the Court shall be sufficient by posting a copy of same at the door of the premises located at 29 Marshall Street, Fredericton, New Brunswick, and shall be effective on the date of posting thereof; 5) That service of the Notice of Action with Statement of Claim Attached, Amended Notice of Motion, Notice of Motion, and attached Affidavits in support thereof are hereby validated pursuant to Rule 18.09, as of the date of posting a copy of same at the door of the premises located at 29 Marshall Street, Fredericton, N.B. being October 13th, 2009

Court Orders should not be written contrary to reason and the truth, as the facts support, no matter how convenient. As an excuse, for this behavior of writing a Court Order which was not possible, Solicitor George H. LeBlanc did tell Appellant Justice, on Hearing of a Motion for Leave to Appeal, at the November 12, 2009 hearing that in including the Service of the Plaintiffs Amended Notice of Motion (Date Stamped, Filed by the Court

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October 15, 2009) in paragraph 5 and 6, was effectively served and validated as if it was served by posting a copy of same at the door of the premises located at 29 Marshall Street, Fredericton, New Brunswick on October 13, 2009, which was not possible, Solicitor George H. LeBlanc did state that, this was his way of just being thorough.

274. (4) The claims by Solicitor George H. LeBlanc, in the Plaintiffs brief dated October 16, 2009 and by providing affidavits to the Court, alleging that the defendant was evading service, when the Defendant was in fact not evading service; It is clear by the conflicting affidavits of the Plaintiffs, that Service attempts did not in fact occur as was alleged by sworn affidavit, the credibility (capacity for belief) of the Process Server Dave Daneliuk must be completely lost based on the shear volume of irregularities with the circumstances surrounding the simple Service of Court Documents and the lies already admitted in regards to service of the subject documents. Each time the Process Server Dave Daneliuk was involved in service, irregular circumstances are consistently experienced, further, it was Process Server Dave Daneliuk, who was the only one providing affidavit evidence testimony that evasion of service was allegedly occurring. We can conclude that Service of Notice of Action and Statement of Claim attached dated September 18, 2009, Motion dated September 18, 2009 and supporting affidavits did not occur as alleged and consequentially the defendant was not evading service, as alleged by the Plaintiffs. We can now safely conclude that the alleged attempts of the Defendant to evade Service are in fact fabrications of the mind of Dave Daneliuk, and any further corroborative assertion by Solicitor George H. LeBlanc can be dismissed, because of the less than satisfactory attempts made

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by Solicitor George H. LeBlanc, to contact the Defendant, in regards to Notice of the scheduled October 20, 2009 Motion.

275. (5) alleging that the Defendants had no color of right to be at the 29 Marshall Street property, when the Defendant did in fact, despite the claim by the Defendant of being in possession of a Lease, for that very property and despite the fact that according to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 9(7) mere possession of residential property creates a binding Residential Tenancies lease, and section 9(5) a verbal agreement provides the same protection. The Plaintiffs, in argument provided a copy of a Court Order previously granted to the Plaintiffs, for this Court to consider, which is absent any reference to a Residential Tenant, nor the Residential Tenancies Act, and instead only referred to a Mortgagor, whom had their property foreclosed upon, and the Plaintiffs where subsequently seeking an Order to vacate, the previous Title Holder. The Plaintiffs conveniently misrepresented the situation to the Court in such a fashion that the Court commented, in the transcript provided from the hearing of the Plaintiffs Motion, heard October 20, 2009, for Orders to Vacate the Defendant, et al. at page 2 line11: I think that your material dealt and fully supported the remedies or the order that you are seeking, so if you think or there are things that you need to convey to the Court at this time, I will hear you; if not, I will grant the Order. 276. Further, at page 3 line18: And what the material essentially just to deal with some highlights or some general observations that this Court has, having gone through all the material, the proposed defendant, or respondent, Andre Murray, in that motion has no legal or colour of right whatsoever to occupy the house.

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277. Further, at page 4 line 4: So this, respondent, Andre Murray, is a pure and simple trespasser on this property and his presence is on this premises are not based on any documents or there are no facts to support his presence there. Actually, this Court even questions if there was even a need in law to have him served with this Notice of Motion. I think that the applicants acted the way they did because the police would not agree to get involved and to use the force to have Andre Murray evince the property, and thats why the applicant felt they had no choice [but] to come before the Court, but this Court even doubts if such a legal procedure would have had to be served to Andre Murray. But the opposite, when the police tell you that they wont they wont move and they wont intervene, it does not leave much choice to the applicant, so this Court understands that to its better to be safe than sorry. So, if the police would not use the force, what choice does the applicant has? They cannot hire their own people to use the force. So, even though such notice to the Andre Murray was its not clear, that it was even necessary; nevertheless. 278. The Plaintiffs so carefully crafted their presentation of material to the Court, regarding the Defendants having no color of right, that the Honorable Court was compelled to make statements such as the the proposed defendant, or respondent, Andre Murray, in that motion has no legal or colour of right whatsoever to occupy the house, this Court even questions if there was even a need in law to have him served with this Notice of Motion and So this, respondent, Andre Murray, is a pure and simple trespasser on this property and his presence is on this premises are not based on any documents or there are no facts to support his presence there which are statements that are completely contrary to the facts, had the Plaintiffs not misrepresented the surrounding circumstance and facts as they actually were, to the Honorable Court. Further, what is noticeable is the absence of any reference, by the Court to a Residential Tenant, nor the Residential Tenancies Act of New Brunswick. These above

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excepted comments are not the comments, of a impartial Court, objectively performing their Judicial function, and again, make no reference to the Defendant Andr Murray being a Residential Leasehold Tenant (colour of right) pursuant to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2 furthermore, that the Defendant is in Good Standing therefore, sheltered pursuant to the aforementioned; Residential Tenancy Act of New Brunswick. The facts as they where presented to the Court by the Plaintiffs are contrary to reason, the Court must have wondered why, (if the facts as presented where true), if the respondent, Andre Murray, was a pure and simple trespasser on this property, why the police would not agree to get involved and to use force to eject a trespasser, which would have been logical, and moreover, such a simple matter of police procedure.

279. (6) alleging that the property has essentially been held as hostage, the property is at risk, the property is not insured, the property is boarded up, and Alleging that no one knows what the condition of the property is or will be, which was in fact not the case. For the Plaintiffs to boldly allege that the property has essentially been held as hostage, is at risk, is not insured, is boarded up, and alleging that no one knows what the condition of the property is or will be, are carefully crafted concepts that when joined together, would have caused the Court to believe that the situation presented to the Court, was one of danger and urgency, involving unsavory surreal (generally means bizarre or dreamlike) characters. Which further, evidences, why the Honorable Court was compelled to make statements such as the the proposed defendant, or respondent, Andre Murray, in that motion has no legal or colour of right whatsoever to occupy the house, this Court even questions if there was even a need in law to have him served with this Notice of Motion and So this,

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respondent, Andre Murray, is a pure and simple trespasser on this property and his presence is on this premises are not based on any documents or there are no facts to support his presence there which are statements that are completely contrary to the facts. The Defendant asserts that these descriptions of events, and choice of words such as hostage, risk, not insured, boarded up, no one knows what the condition of the property is or will be were simply and carefully crafted statements, by the Solicitor for the Plaintiffs George H. LeBlanc, to inundate the Court with skewed information, so that the Plaintiffs would smoothly and without question, be granted their requested Orders.

280. When the Intended Responded brought these many irregularities to the Learned Trial Judges attention, the Learned Trial Judge did make an error in law by not granting the Intended Appellants requested Rescinding Orders Motion.

281. Finally, though the Learned Trial Judge did grant the requested extension of time to serve and file the Defendant s Rescinding Orders motion, the Court did fail to address the following arguments as presented in brief in the Defendants November 19, 2010 Amended Motion. The Defendant argues, Fraud upon the court" makes void the Orders and Judgments of this Honorable Court. It is also clear and well-settled law that any attempt to commit "fraud upon the court" vitiates the entire proceeding. The Defendant argues, the volume of irregularities of service, seen collectively, as a whole, reveals an abuse of process, directly, in this event causing Defendant Andr Murray, to not be aware of the hearing scheduled for Oct 20, 2009; Defendant Andr Murray, completely unaware of the scheduled proceedings, was not able to attend, or send legal representation to counter claim, before this Honorable Court at the date of the hearing.

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The Defendant argues, paragraph number 4, the subject October 20, 2009 Order without question requires as prerequisite to being effective on the date of posting thereof: that the Amended Notice of Motion must be posted at the door of the premises known as 29 Marshall Street, Fredericton. The Amended Notice of Motion was not ever served and could not have been as it did not exist on October 13, 2009, further, which is the date Process Server Dave Daneliuk alleged Service of the Notice of Action with Statement of Claim Attached, Notice of Motion, and supporting affidavit documents which incidentally were discovered by the Defendant Andr Murray on the 22nd day of October, 2009, discovered hidden away, attached with masking tape, at the base of the 31 Marshall Street Door not on or near 29 Marshall Street Door and definitely not within the visibility of anyone entering or leaving 29 Marshall Street door. The service of documents to 31 Marshall Street, the address next door to the address specified in the Order, cannot be considered compliance with the Orders of the Court. The Defendant argues, conditions considered reasonable for granting ex parte relief, regarding the subject October 20, 2009 Orders where not met. The principle of natural justice rests on two fundamental or universally recognized principles: first, that no one, be condemned, unheard (audi alteram partem) which directly Applies to the Defendant because the Orders dated October 20, 2009, where granted ex parte, and without notice. The Defendant argues, that the prerequisite criteria has been fulfilled namely; an explanation for any perceived delay in litigation; an explanation for inadvertence in missing a deadline, consequentially it shall be seen that the Motion is brought promptly, and with no prejudice to the Plaintiff. The Defendant argues, that the Court has the discretion to set aside a default judgment in the interests of justice, and furthermore that the Defendant has fulfilled the criteria of the test for setting aside judgments in default of appearance, namely (a) the failure to file an appearance or defence was not wilful or deliberate; (b) the application to set aside the default judgment was made as soon as reasonably possible upon learning of it, or an explanation for any delay is given; and (c)

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there is a meritorious defence or at least a defence worthy of investigation. The Defendant argues, that the Case of R.B.C v. Zonneveld, 2003 MBQB, based on the principle of stare decisis, provides this Court, when considering this most similar case, every opportunity to rule in a similar fashion, on the over all issue of whether Defendant has the legal standing according to the Residential Tenancy Act of New Brunswick, over the Royal Bank of Canadas preregistered Mortgage. The Defendant argues, the question, of whether service occurred or did not, which is examined by review of contrasting affidavits, as well as the unique circumstances in which the courts discretion to set aside a judgment, should be exercised, even when all the requisite elements of the Miracle Feeds test have not been satisfied by the applicant, if it would be an injustice to do otherwise. The Defendant argues, further to the above, the fundamental concepts that the ex parte Order is obtained periculo petentis so that if there has not been made to the Judge a full and frank disclosure of relevant facts, the Order will be voided, such as in this case. The Defendant argues, Rule 37.04 was not complied with regarding the Amended Notice of Motion and pursuant to Rule 2.03 of the Rules of Court Defendant Andr Murray is recommending the irregularity in the proceeding be noted. According to the Rules of Court, Rule 18.08, Service of the Amended Notice of Motion was not to Defendants knowledge, ever attempted. Contrary to the Rules of Court The Defendant argues, that it is settled law that if a claimant fails to serve a Defendant with an originating process in accordance with the relevant statutory requirements - including any order for substitutional service made under them and subsequently obtains a default judgment based on the Defendants failure to respond, then the default judgment is a nullity. The defendant in this case was therefore entitled to have the default judgment set aside as of right The Defendant argues, that the entitlement of notice is based on a fundamental principle of justice within the rule of law. There is fundamental right to notice of an upcoming hearing involving the

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adjudication of the rights of an individual. The logic involved with the principle that a person is only bound by an order, after being given the opportunity to speak to the matter in his defense and upon receiving notice thereof, is enshrined in our law. The Defendant argues, that the shear volume of blatant irregularities of Service and procedure, to the extent by which they occurred in these circumstances, which consequentially, gained the Plaintiffs an unfair opportunity to have an ex parte hearing, to the further prejudice of the Defendant Andr Murray, causes the merits of an award of cost to the Plaintiff to be unfounded. The Defendant argues, that on an ex parte motion, a solicitor must look at the broader picture and ask him/herself whether, as an officer of the court and as a professional, the better practice would be to give notice so that those adverse to the interests of the moving client will be afforded an opportunity to place his or her position before the court. This decision is particularly easy where the solicitor can conclude with some reasonable certainty that, when the ex parte order comes to the attention of an adverse party, that party, or person, will probably move to set aside the order. Quite apart from being aware of and complying with the aforesaid rules of professional conduct; counsel must also seek to avoid unnecessary expenses and duplication, which was obviously not the case before this Court. For these reasons the October 20, 2009 Orders, may and should be set aside as against the Defendant. The Defendant argues, the circumstances which required an abridgement of time for service of the documents would have been unnecessary had the Solicitor George LeBlanc made genuine effort to contact Defendant Andr Murray through phone, e-mail or regular mail that the subject Documents existed, which where to be served on Defendant Andr Murray. After failing to Process Serve Defendant Andr Murray the just and fair action that any Officer of the Court should have done, in Defendants humble view, was to adjourn the hearing until after successful service was accomplished and or request of the Court a Summons Ordering the Defendant to attend Court.

18.08 Service Not Conclusive

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The Defendant argues that the Court may grant an extension of time to file the Notice of Motion Rescinding the October 20, 2009, Orders of the Court, serve the Notice of Motion Rescinding the October 20, 2009, Orders of the Court and an extension of time for the October 20, 2009, Eviction Order to be returnable pursuant to rule 18.08 because the documents, namely the Plaintiffs Notice of Action with Statement of Claim attached and the Plaintiffs Notice of Motion and affidavits in support came to the Defendants notice only at some time later than when it was deemed to have been served, the credibility of the Process Server charged with delivery/service of said Court Documents is regrettably in question, and additionally the Plaintiffs Amended Notice of Motion was never in fact served upon the Defendant as previously claimed. Striking claims The object of permitting the striking out of a Statement of Claim is to get rid of frivolous actions, including actions in which no reasonable cause of action is disclosed on the face of the pleadings. The Plaintiffs Statement of Claim does not disclose a reasonable cause of action against the Defendant. The Defendant further argues that the Plaintiffs claim should be struck as it may prejudice, embarrass or delay the fair trial of the action; is scandalous, frivolous or vexatious; and is an abuse of the process of the Court. Pursuant to Rule 22.01(3) the Defendant argues this Court should grant summary judgment against the Plaintiff on the ground that there is no merit to the action, or to one or more claims therein the Statement of Claim, Defendant Andre Murray argues under Rule 22.01 (3) of the Rules of Court, the Court may grant summary judgment against the Plaintiff on the ground that there is no merit to the action, or to one or more claims therein, or to part of any such claim, an order for summary judgment against the Plaintiffs striking out the Plaintiffs Statement of Claim or part of Plaintiffs Statement of Claim, namely paragraph 8 and 9 of the Plaintiffs Statement of Claim for lack of Jurisdiction.

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Defendant Andre Murray argues under Rule 23.01(1)(a), the Court must be satisfied, in exercising its discretion, that, there is a possibility that, the determination of a question of law raised by the pleadings may dispose of the action, shorten the trial, or result in a saving of costs. The Defendant deposes, that a question of law raised by the pleadings, which is sought to be determined by this motion is: Does the Court of Queens Bench, have Jurisdiction in New Brunswick, to make rulings on Residential Tenancy matters, outside of the powers expressly and specifically granted to the Court, contained within the Residential Tenancies Act? Or put another way Does the Court of Queens Bench have the same Jurisdiction in New Brunswick, as a Rentalsmen to make rulings on Residential Tenancy matters, pursuant to the New Brunswick Residential Tenancies Act? and, if the question is answered in the negative, it is plain and obvious that the pleading discloses no reasonable cause of action and the Statement of claim should be struck pursuant to Rule 23.01(1)(b), consequently the Defendant asks for summary judgment dismissing the Plaintiffs Action pursuant to Rules 37.10(a). Defendant Andre Murray argues under Rule 23.01(2)(a), of the Rules of Court, this Court may dismiss the Plaintiffs Action, for lack of Jurisdiction of this Court to rule, on matters concerning the Residential Tenancies Act S.N.B. 1975, c. R-10.2. in any capacity not specifically granted, by the Residential Tenancies Act. Defendant Andre Murray argues pursuant to Rule 23.01(b), the Court is confined to considering the allegations contained in the Statement of Claim and any particulars relied upon by the Plaintiff, and must assume that all such allegations are true. Boilerplate or bald assertions are insufficient pleadings unless sufficient particularity is also found in the pleadings of which the Plaintiffs Statement of Claim of the Plaintiffs is deficient of sufficient particularity.

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The Defendant argues pursuant to Rule 27.09 that the Plaintiffs entire Statement of Claim is vexatious or an abuse of the process of the court on the basis that it does not disclose a reasonable cause of action. The Defendant argues, pursuant to Rule 27.09 (c), striking out paragraph 8 and 9 of the Plaintiffs Statement of Claim on the grounds that it (c) is an abuse of the process of the court, circumventing the jurisdiction of the Rentalsmen, pursuant to New Brunswick Residential Tenancy Act. The Defendant argues, that the Court to strike paragraphs 8, 9 and 10 of the Plaintiffs Statement of Claim for damages pursuant to Rule 27.09 on the ground that paragraphs 8, 9 and 10 the Statement of Claim does not disclose a reasonable cause of action for damages for conversion of property and unjust enrichment because boilerplate or bald assertions are insufficient pleadings unless sufficient particularity is also found in the pleadings of which the Plaintiffs Statement of Claim is deficient of sufficient particularity The Defendant argues, Under Rule 27.09 of the Rules of Court, Striking Out a Pleading or Other Document, for an order striking out the Plaintiffs many submitted affidavits, or portions thereof which are scandalous, frivolous, vexatious, or otherwise an abuse of the court. The Defendant argues, the Under the Rules of Court, Rule 37.10(a) the Motion be converted into a Motion for judgment. Rule 37.10(a) speaks of converting the Motion to strike to a Motion to dismiss. On the hearing of a Motion, the Court may allow that the Motion be converted into a Motion for judgment, that the Court may strike the Statement of Claim and allowed the Motion for judgment dismissing the claims against the Defendant Costs The Defendant argues, that the Court may find that this is a just opportunity, deserving the Defendant, of the award of Solicitor-client costs, further, in the public interest, significant solicitor-client costs may, be, proportionally awarded, to mark the Courts appropriate disapproval of the conduct of a party during the litigation, The Defendant encourages the Court to do just that.

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282. The Learned Trial Judge did fail to address the many Orders which the Intended Appellant did request. The Intended Appellant has a right to be provided with a formal response to these same Arguments and Orders requested. The Learned Trail Judge did provide no explanation or analysis of the argument presented by the Intended Appellant, only a boiler plate dismissal of relief. The Learned Trial Judge did display a Reasonable apprehension of Bias by not addressing the Intended Appellants requested relief and only for the most part addressing the requested relief of the Intended Respondent.

Decision Order 4 Rank of Priority to Possession of the Premises Between a Mortgagee and a Tenant 283. The Learned Trial Judge did make an error in law by Misapprehending the Argument and evidence provided.

284. The Learned Trial Judge failed to understand the facts and arguments as presented by the Intended Appellant and instead pursued only the arguments and assertions as presented by the Intended Respondent, this predisposition of the Learned Trial Judge toward a particular result, is such that a reasonable apprehension of bias is raised.

285. The Intended 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.

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286. 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 Intended Appellant.

287. The Learned Trial Judge did recognize the validity and legal effect of the Intended Appellants Two presented Residential Tenancy Lease, a Year to Year Lease Dated September 1, 2005 which are in accordance with and pursuant to the Residential Tenancy Act of New Brunswick.

288. The Learned Trial Judge did error in law by misapprehending the applicable sections of the Residential Tenancy Act of New Brunswick and the Property Act of new Brunswick, did not appropriately conclude that the subject Leases run concurrently so that as of April 01, 2010 the Intended Appellant was at that time a Long Term Tenant (Tenancy of more than 5 years), further required specific procedure to terminate the Intended Appellants Lease.

289. The Learned Trial Judge did error in law by misapprehending the Residential Tenancy Act of New Brunswick and not appropriately concluding that the Court of Queens Bench Trial Division does not have the Jurisdiction to terminate or declare a Tenants Lease Terminated, without the mater having first been brought to the attention of the Rentalsmen.

290. The Learned Trial Judge did error in law by misapprehending the lack of Jurisdiction {pursuant to the Maxim Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, a.k.a.

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"Last in Time") and the Maxim Expressio Unius Est Exclusio Alterius (The express mention of one thing excludes all others) }, that Honorable Court could not render a decision which would vacate the Intended Respondent from the 29 Marshall Street and 31 Marshall Street, Residential Duplex in the City of Fredericton, as that decision is within the jurisdiction of the Rentalsmen only, consequence of the Defendants Tenancy since year 2005 in pursuance with the New Brunswick Residential Tenancies Act.

Paragraph 163 291. 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.

292. The Learned Trial Judge did erroneously state the law in this province simply gives to the a Mortgagee a priority over any Tenant, if the mortgage was created prior to the lease and if the mortgage was never the object of a grant of subordination in favour of said lease. Interpretation of the New Brunswick Statutes a.k.a. the law, does not support this view. There is no case law to support this view of the interpretation of the law of New Brunswick. This case would in effect be setting the precedent, for this province.

293. The New Brunswick Provincial Statutes and their respective interpretation does conclusively indicate that the Residential Tenancy Act is Notwithstanding any other Act, therefore, the Property Act (Mortgagee Rights) are there for subordinate to the Rights guaranteed to Tenants and

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Landlords in this Province. The Property Act of New Brunswick does in fact state clearly that it (Property Act of New Brunswick) does recognize that, pursuant to a Mortgage sale held pursuant to the Property Act of New Brunswick, the property transfers subject to the Rights of Tenants. Paragraph 164 294. It would in fact be reasonable to come to a interpretation that the Rights of Tenants in the Province of New Brunswick are held to be in higher standing, than the rights of Mortgagees, just like they are in every other province in Canada. The New Brunswick Provincial Statutes and their respective interpretation does conclusively indicate that the Residential Tenancy Act is Notwithstanding any other Act, therefore, Mortgagee Rights, pursuant to the Property Act or contract are there for subordinate to the Rights guaranteed to Tenants and Landlords in this Province.

295. Mortgagees should take actions subject to the Rights of Tenants and Landlords, just like in every other Province in Canada. It is important to note that it is apparently working well everywhere else, further the New Brunswick Provincial Legislation was drafted to express the same intention in this province, but until now, no one has pressed through the Court process to receive a decision which would articulate this blatant and obvious fact.

Paragraph 165 296. The Curt did erroneously state it is not by way of a court decision that we should consider substantially redefining the residential mortgage industry. The Residential Mortgage Industry should have been subject to the Residential Tenancy Act of New Brunswick, since the drafting of the Residential Tenancy Act, in the 70s. If the Mortgage industry has exploited the slow uptake of the

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Provincial law, up to this point, then that time should be over. The Place of the Courts, in our system of Government, is exactly to interpret Legislation which was drafted with purpose, to be interpreted and applied to the cases placed before hem for the benefit, of the people of New Brunswick. It would in fact be reasonable to come to a Legislative interpretation, that the Rights of Tenants and Landlords (the People) in the Province of New Brunswick are held to be in higher standing, than the rights of Mortgagees, just like they are in every other province in Canada.

297. Lastly the Intended Respondents presented case law, to argue there point which was from the time of Confederation, a time in history when the Canadian Legal Landscape was considerable different. If you consider that at that time Judges rode on horseback to get to the Court, read by candle light, and the interests of for profit corporations as they exist today were unheard of, and not considered by those Courts. When those Court considered mortgagees rights they were considering the rights of a man who at his own personal risk, lent his own saved money to finance the purchase of property under a contract to another man, which the mortgage contract, provided a certain guaranty of performance.

298. Now in todays legal landscape the mortgagees are for profit corporations, who do not have representative actually sign any agreements, and most importantly cannot legally lend there own companies money. The value for a Mortgage is created, by the signature and relative promise to perform, by the Mortgagor, who signs and grants the Mortgage (single party contract, promise to pay) to the Mortgagor. The whole transaction is insured so the Mortgagees cannot loose, either way.

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299. Lastly the Court did not once mention or address the glaring fact that the Residential Tenancy Act of New Brunswick is notwithstanding any other Act, agreement or waiver to the contrary.

Paragraph 166 300. The New Brunswick Provincial Statutes and their respective interpretation does conclusively indicate that the Residential Tenancy Act is Notwithstanding any other act, and the Property Act (Mortgagee Rights) are there for subordinate to the Rights guaranteed to Tenants in this Province. The Mortgagees in other provinces are realising the most fantastic profits of any investors in our time, so it appears that this risk that the Court expresses is either acceptable, and or unsubstantiated.

301. The Court is not being asked to assess the risk a Mortgagee may undertake. Because Mortgagees have thus far monopolized on and taken advantage of lax enforcement and interpretation of legislation of this province, does not mean they have the right to continue on in the same manner perpetually. The New Brunswick provincial legislating is clear on the matter of priority of rights between those protected by the Residential Tenancy Act and Mortgagees. The Learned Trial Judge did display a reasonable apprehension of Bias by claiming in favour of Mortgagees, that Mortgagees should somehow entitled to rights not provided for in our provincial legislation. Paragraph 167, 168, 169, 172, 173, 174 175, 176, 182 and 184 302. In response to the Paragraphs 167, 168, 169, 172, 173, 174 175, 176, 182 and 184 of the October 21, 2011 subject decision, the focus of this Motion for

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Leave to Appeal. The Intended Appellant did provide the following argument for the Learned Trial Judges consideration which is completely contrary to the Learned Trial Judges erroneous findings of fact.

PRELIMINARY 303. This Defendant Andre Murray finds is a fascinating subject how a Financial Institution such as the Royal Bank of Canada (hereafter R.B.C.) first obtains a Investment Instrument called a MORTGAGE further having obtained a Mortgage may at some later date erroneously imply that this Investment Instrument called a MORTGAGE somehow extends the R.B.C authority to (again erroneously) include ownership of assets such as buildings and or land which maybe however located on the land associated with the MORTGAGE. 304. This is false as a MORTGAGE is simply a paper pledge to repay a dept which is leveraged against the asset Market Value of the static tangible assets (buildings and or land) but does not clearly state or even allude in written form (on said MORTGAGE document) that the named MORTGAGEE has the legal right to evict the owner and or Residential Tenant, as this authority of eviction belongs to the registered property title holder of leased premises and not the Mortgagee. 305. Point I Residential Leasehold Tenant Andre Murray wish to make is that in the scenario of a NOTICE OF MORTGAGE SALE the R.B.C. reasonably should be able to transfer or sell the Investment Instrument called a MORTGAGE; which is what we see that they attempted to do, by way of Mortgage Auction Sale, furthermore, the MORTGAGE when given by the Title Holder of Property allows and or grants to the MORTGAGEE that this

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negotiable instrument a MORTGAGE may exercise their prerogative which is the granted ability of a Financial Institution such as the R.B.C to sell or transfer or manipulate the VALUE in anyway allowed within said MORTGAGE document but never includes the assigning of obligations and or authority selling of or transfer of the Hard tangible Assets such as buildings, land and or anything else considered a asset affixed to the land. The MORTGAGEE has the ability to sell or transfer only what the R.B.C. owns which in this case is the MORTGAGE. It is clear that the R.B.C. never registered the Title no no no the R.B.C. Registered a Lien against the Title only. 306. Therefore since the R.B.C. never transferred the Title and instead the R.B.C. accepted the MORTGAGE reasonably the R.B.C. should not concern itself with acting as a Landlord pursuant to the Residential Tenancies Act S.N.B. 1975, c. R-10.2, as this LANDLORD authority was never transferred by way of Mortgage.

307. The selling of equity Hard tangible Assets such as buildings, land and or anything else considered a asset affixed to the land; rather the R.B.C. may sell to another party only the MORTGAGE as the negotiable instrument for which it was intended nothing more - nothing less. NOTICE 308. Another serious matter of contention must see the question as to whether or not a proper Notice of MORTGAGE Sale according to the POWER OF SALE provisions found within the Property Act were ever followed correctly in the first place as the alleged Notice allegedly issued June 2009 is impugned.

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309. Notice of MORTGAGE Sale erroneously referred to three Non existent details and as such was R.B.C. was negligent according to the POWER Of SALE provisions pursuant to the PROPERTY ACT : 1. Notice must be provided to all parties with a clear interest in the Title; Andre Murray was clearly not notified nor was any serious attempt made to Notify Andre Murray. 2. Betty Rose Danielski never gave the R.B.C. a MORTGAGE for 29 Marshall Street; Betty Rose Danielski would have been required to sever the Title as the Title is 29 and 31 Marshall Street as found in the Land Registry and also clearly stated on the Original MORTGAGE; 3. The R.B.C. erroneously states that the MORTGAGE was registered in the County of York Registry Office on October 31st , 2009 ; This is of course not correct. Question would have to be did the Mortgage sale ever actually occur according the word of Law.

PART II STATEMENT OF FACTS 310. If an owner has surrendered possession to another (i.e., the tenant) then any interference with the quiet enjoyment of the property by the tenant in lawful possession is itself unlawful.

311. Defendant Andre Murray over the span of year 2005 became signatory to several Residential Leasehold Tenancy agreements for Residential Duplex units located at 29 Marshall Street and 31 Marshall Street, in the City of Fredericton New Brunswick. After several attempts to feel secure in Andre Murrays investment as a long term Residential Leasehold a Year to Year Residential Tenancy Lease was finally determined as satisfactory Signed Dated Sept 1, 2005 for the subject property.

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312. Tenant Defendant Andre Murray has provided as evidence a four year Term Lease Signed Dated April 1, 2005.

313. Andre Murray as Residential Leasehold Tenant did sign the above mentioned subject Lease agreements with Landlord Betty Rose Danielskis appointed CONTINUING POWER OF ATTORNEY FOR PROPERTY Richard Boileau on behalf of and to the benefit of Registered Property Title Holder Landlord Betty Rose Danielski for the subject Residential Duplex units located at 29 Marshall Street and 31 Marshall Street, in the City of Fredericton.

314. Plaintiff 501376 N.B. Ltd., a body corporate., purchased at the Mortgage Auction Sale of July 16, 2009 a Mortgage Registered against the Property Title of which are situated the subject Residential Duplex units located at 29 Marshall Street and 31 Marshall Street, in the City of Fredericton.

315. The Plaintiffs since July 16, 2009 have been collectively attempting to their benefit and Andre Murrays harm obtain Vacant Possession of the subject Residential Duplex units located at 29 Marshall Street and 31 Marshall Street, in the City of Fredericton.

316. Vacant possession of the subject Residential Duplex units located at 29 Marshall Street and 31 Marshall Street, in the City of Fredericton will require consent by the Residential Leasehold Tenant Andre Murray and or by due process of law pursuant to the Residential Tenancies Act S.N.B. 1975, c. R10.2,

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317. The Plaintiffs erroneously claim and have acted on their erroneous beliefs that a Mortgage somehow gives them unilateral authority to issue a NOTICE TO VACATE as the Plaintiffs further allege to have established an obligation upon Residential Tenant Andre Murray by simply posting a NOTICE TO VACATE on one of the door entrances of the Residential Duplex units located at 29 Marshall Street and 31 Marshall Street, in the City of Fredericton.

318. The Plaintiffs will request of the Honorable Court for Orders validating a alleged Termination of Lease, allegedly served pursuant to the Residential Tenancies Act S.N.B. 1975, c. R-10 upon the Residential Leasehold Tenant (Defendant in this matter Andr Murray) of the subject Residential Duplex units located at 29 Marshall Street and 31 Marshall Street, in the City of Fredericton.

319. Plaintiff The Royal Bank of Canada must argue that at the time the subject Mortgage was granted by the Title holder Betty Rose Danielski furthermore, that this action grants Title of Ownership to said subject property 29 Marshall Street and 31 Marshall Street, in the City of Fredericton.

320. The Defendant in this matter contends The Royal Bank of Canada owns only an investment instrument commonly known as a MORTGAGE nothing more is implied or stated; as such, the Royal Bank of Canada cannot find any authority within the Property Act enabling the Royal Bank of Canada or any other Mortgagee for that matter to act with the authority of a Landlord pursuant to the Residential Tenancies Act S.N.B. 1975, c. R-10. PART III - ISSUES

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When does the Court of Queens Bench have jurisdiction, to Hear, then Decide and Rule on matters concerning the Residential Tenancies Act S.N.B. 1975, c. R-10. If jurisdiction does indeed exist for the Court of Queens Bench to Hear, then Decide and Rule on matters concerning the Residential Tenancies Act S.N.B. 1975, c. R-10. is this such a case? Considering that the Court of Queens Bench has the Jurisdiction to hear and decide matters concerning the Residential Tenancies Act S.N.B. 1975, c. R10.2, further considering all herewithin mentioned ISSUES should the Honorable Court then be able to over Rule and or Rule over the Residential Tenancies Act S.N.B. 1975, c. R-10.2, in favor of Property Act, R.S.N.B. 1973, c. P-19 or should the Court of Queens Bench Rule in favor of preserving and protecting the Rights of Residential Tenants, as contemplated by the New Brunswick Residential Tenancies Act? A. MAXIMS 321. Because Maxims are principles and authorities, universally admitted, as

being just further, that it be consonant to reason and part of the general customs or common law of the land; and are of the same strength as acts of parliament, please note the Defendant will use the relevant Maxims throughout following arguments as they may apply in that particular case. B. Situation Analysis 322. The welfare of the people is the supreme law. Broom's Legal Maxims (max. 1-10), also Bacon's Maxims (reg. 12) Also 323. Maxim - In pari causa potior est condition possidentis Everyone may keep what he has got, unless and until someone else can prove a better title.

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324. Defendant Andre Murray believes that the maxim The welfare of the people is the supreme law is clearly addressed and is the expressed intention of The Residential Tenancies Act of New Brunswick. What could be

more important to a man than security, consistency and stability of a home, whether rented or owned, there is no difference, except The Residential Tenancies Act of New Brunswick is a specific act which by Law can and does afford a level of protection and security of tenure notwithstanding all other Acts Statutes and or Laws further, not afforded to the Home owner.

325. Maxim - Possession is nine-tenths of the law. 326. The Defendant Andre Murray on initial telephone contact with George H. LeBlanc revealed the existence of an existing Tenancy Agreement and the signed Year to Year Lease. A copy of the Year to Year Lease, Dated September 1, 2005 was offered by the Defendant Andre Murray multiple times to Solicitor George H. LeBlanc but was not accepted by the Solicitor for the Plaintiffs. Maxim - No one is bound to arm his adversary. 327. Despite knowledge of a lease, which under the Law embodied within the Tenancy Act of New Brunswick, grants protection to a Residential Leasehold Tenant such as Defendant, Andre Murray and further shelters tenants from predatory practices, as perpetrated against Defendant, Andre Murray by various agents for the Plaintiffs. Maxim - Rights never die. 328. Agents for The Royal Bank of Canada continue to ignore the rights of the New Brunswick Tenant Andre Murray and push for a eviction, despite Canada

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wide rulings in all other Provinces of Canada against such actions by a Mortgagee to evict Tenants in good standing. Maxim - Rerum ordo confunditur, si unicuique jurisdictio non servetur. The order of things is confounded if every one preserves not his jurisdiction. 4 Co. Inst. Proem. 329. The agents for the Plaintiffs have overstepped Jurisdiction and are attempting to evict the Defendant without Proof of Claim that the Plaintiffs have the Legal Standing to do so. Note: the Residential Tenancies Act, S.N.B. 1975, c. R-10.2,. is notwithstanding all others. STANDARD FORM OF LEASE Maxim - Longa possessio parit jus possidendi, et tollit actionem vero domino. Long possession produces the right of possession, and takes away from the true owner his action. Co. Litt. 110. 330. Leaseholder Andre Murray is now in his sixth chronological year of leasing the 29 Marshall Street and 31 Marshall Street, Fredericton, New Brunswick premises, the most recent Lease, in the Defendants possession being dated Sept 1, 2005. Maxim - Ignorantia juris quod quisque scire tenetur non excusat Ignorance of the law, which everybody is supposed to know, does not constitute an excuse. 331. In Accordance with Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 9(1) leaseholder Tenant Andre Murray has performed Honorably Maxim - A public law or right cannot be altered by the agreements of private persons.

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332. Furthermore, the Residential Tenancies Act, S.N.B. 1975, c. R-10.2 states: 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b) arising or entered into before or after this Act comes into force. 333. The law will not intend a wrong. - Legal Maxim, Bacon's Maxims (17, reg. 3) The Defendant verily believes that the Residential Tenancies Act was created to protect the Tenants and Landlords from abuse and as the Maxim above states the law will not intend a wrong against either the Tenants or Landlords. C. Royal Trust Corp. of Canada v. Roche, 1994 Maxim - Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law. 334. The Defendant believes that in considering the circumstances of the case of Royal Trust Corp. of Canada v. Roche, 1994 CanLII 7317 (ON S.C.) The language of the Mortgage Act of Ontario, appears clearly intended to define in no uncertain terms, that when a person who becomes the mortgagee in possession of mortgaged residential premises (which are the subject of a tenancy agreement between the mortgagor and a tenant) or who obtains title to the residential premises by foreclosure or power of sale shall be deemed to be the landlord under the tenancy agreement, and as a consequence, is subject to the tenancy agreement and to the provisions of the Landlord and Tenant Act

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which apply to residential premises, furthermore, a person exercising rights under a mortgage who gives notice of termination of a tenancy shall be deemed to be a landlord under subsection 47(1) (of the Landlord and Tenant Act). D Stare Decisis 335. The principle of stare decisis generally requires that this Court, adopt similar reasoning when presented with a precedent or authority, where a similar matter has already been decided upon establishing a principle or Rule that the Honorable Court may utilize, unless this Court can see a special reason not to adopt similar reasoning. Comparatively speaking the here within earlier referred to case of Royal Bank Of Canada v. Zonneveld, 2003 MBQB and the present case of the Royal Bank of Canada et al v. Andre Murray provide a strikingly similar parallel fact situation. 336. Royal Bank Of Canada v. Zonneveld, 2003 MBQB provides for following the principle of stare decisis, that this Honorable Court may follow this most similar case, and rule in a similar fashion. E. Royal Bank Of Canada v. Zonneveld, 2003

337. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) a similar circumstance is considered. There is the same Mortgagee, (the Royal Bank Of Canada), where a Mortgagor who is the owner of the property who subsequently failed to make the monthly mortgage payments and defaulted under the terms of the mortgage and lastly a Tenant who is renting the property. The Mortgagee wishes to vacate the property and the question of whether a

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Mortgagee has the color of right or authority to lawfully vacate a Tenant who is Lawfully leasing subject property is addressed by Justice SCHWARTZ J. F Comparison of subject case and Royal Bank Of Canada v. Zonneveld 338. Similarities between Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) and the within action Royal Bank Of Canada v. Andre Murray, it will hopefully benefit the Court to compare the legislation in New Brunswick to Manitoba in regards to the Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII)

339. For ease of reference here are the relevant Acts of Manitoba referred to in Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII)

Interpretation Act, C.C.S.M., c. I80 Privacy Act, The, C.C.S.M., c. P125 Real Property Act, C.C.S.M., c. R30 Residential Tenancies Act, C.C.S.M., c. R119

Here are the comparative relevant Acts of New Brunswick Interpretation Act, R.S.N.B. 1973, c. I_13 Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R_10.6 Property Act, R.S.N.B. 1973, c. P_19 Residential Tenancies Act, S.N.B. 1975, c. R_10.2

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340. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) Justice SCHWARTZ J stated the following at paragraph 10: The Director submits that s. 80 of the R.T.A. requires the Mortgagee to bring its application in accordance with Part 6 of the R.T. the comparison in new Brunswick is section 20 of the New Brunswick Residential Tenancies Act 341. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) at paragraph 22, the Manitoba Residential Tenancies Act, C.C.S.M., c. R119 is quoted as follows 2 This Act applies to rental units and residential complexes and to tenancy agreements, whether made before or after this Act comes into force, despite any other Act and despite any agreement or waiver to the contrary. 342. The comparison, with the relative section of the New Brunswick Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 2 is as follows: 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b) arising or entered into before or after this Act comes into force.

343. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) at paragraph 23, the Manitoba Residential Tenancies Act, C.C.S.M., c. R119 is quoted as follows [23] Landlord is defined in the R.T.A. as:

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"landlord" includes (a) the owner, or other person permitting or granting a right to occupancy of the rental unit, and his or her heirs, assigns, personal representatives and successors in title, (b) a person, other than a tenant occupying the rental unit, who is entitled to possession of the residential complex in which the rental unit is located and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent, and (c) a mortgagee who attempts under the terms of the mortgage to evict a tenant from a rental unit; 344. The New Brunswick Residential Tenancies Act, S.N.B. 1975, c. R-10.2 has no definition of Landlord. For comparison Defendant bought to the Courts attention the definition of Landlord, which is, comparatively speaking, not lacking in the following Provinces and Territories: British Columbia, Saskatchewan, Alberta, Ontario, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon Territory, Northwest Territories, and Nunavut

345. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) at paragraph 25 the subject Property indicated as a rental unit and not otherwise exempted as follows:

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[25] The Director submits and the material indicates that the Property is a rental unit and not otherwise exempted. 346. The Defendant submits, that the here within material indicates, that the subject property, 29 Marshall Street and 31 Marshall Street, are rental units under the New Brunswick Residential Tenancies Act, S.N.B. 1975, c. R-10.2 according to the above mentioned exceptions, and similar to decisions found within Royal Bank Of Canada v. Zonneveld, are in fact not otherwise exempted. 347. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) at paragraph 26, The Director submits that the Residential Tenancies Act, prevails over other provincial statutes as follows: [26] The Director submits that the R.T.A. prevails over other provincial statutes (presumably including the R.P.A.) and cites s. 4 of the R.T.A. Conflict with other Acts 4 If this Act conflicts with the provisions of another Act, other than subsections 5(2) to (2.5) of The Condominium Act, this Act prevails.

348. The Defendant submits that the New Brunswick Residential Tenancies Act, prevails over other provincial statutes as similarly observed by The Director in Royal Bank Of Canada v. Zonneveld as follows: The New Brunswick Residential Tenancies Act, S.N.B. 1975, c. R-10.2 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises,

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(a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b) arising or entered into before or after this Act comes into force. 349. To be absolutely clear and for the benefit of the Court, the following below provided definition of notwithstanding from Black's Law Dictionary (8th ed. 2004),at Page 3378 as follows: NOTWITHSTANDING notwithstanding, prep. Despite; in spite of. 350. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) at paragraph 27, a review of the relative section of the Manitoba Residential Tenancy act reveals a concept that every agreement, oral or written, express or implied, which is contrary to the Residential Tenancy act is void is provided as follows: [27] Section 6 provides:

Waiver of Act void 6(1) Every agreement, oral or written, express or implied, whether entered into before or after the coming into force of this Act, is against public policy and void to the extent that it restricts or waives or purports to restrict or waive the application of this Act or rights and obligations under this Act. Arrangement or payment to defeat Act void 6(2) An arrangement, payment or other device the purpose of which is to defeat this Act is against public policy and void. 351. As indicated earlier, in the Manitoba Residential Tenancies Act the comparable section of the New Brunswick Residential Tenancies Act is section 2 and is reproduced as follows:

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New Brunswick Residential Tenancies Act, S.N.B. 1975, c. R-10.2 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a)notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b)arising or entered into before or after this Act comes into force. 352. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) Found at paragraph 38 and 39, the Director is heard to argue that the current Rule of Statutory Interpretation does not require irresistible clearness as follows: [38] I note that the Director argues that the current rule of statutory interpretation does not require irresistible clearness but rather the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. That is the language used by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27 where he delivered the judgment of an unanimous supreme court. [39] Further the Director submits that the language of section 6 of The Interpretation Act of Manitoba, C.C.S.M., c. I80 requires the same conclusion. Rule of liberal interpretation 6 Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal interpretation that best ensures the attainment of its objects. 353. The Defendant, like the Director in Royal Bank Of Canada v. Zonneveld also argues that the current rule of statutory interpretation does not require

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irresistible clearness but rather the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. That is the language used by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27 where he delivered the judgment of an unanimous supreme court. Additionally the comparable section of the New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13, section 17, is reproduced bellow, as follows: 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 354. The Residential Tenancies Act of New Brunswick is a remedial act that is intended to protect the rights of Landlords and Tenants, large and liberal interpretation best ensures the attainment of its objects.

355. The Defendant would like to draw the Courts attention to the fact that the Residential Tenancies Act of New Brunswick does not exempt a Mortgagee from the Residential Tenancies Act of New Brunswick.

356. The Residential Tenancies Act, of New Brunswick, contains the word Mortgagee and clearly indicates that the 13. Subsections (7), (8) and (9) do not apply where the landlord transfers an estate in the property to a mortgagee solely for the purpose of mortgaging the real property of which the premises form all or a portion. which indicates that a mortgage note does not transfer the estate in property to the Mortgagee according to this Act. The Residential Tenancies Act of New Brunswick does not create, or confer special powers to a

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Mortgagee, to act in any way, outside the scope of the residential The Residential Tenancies Act of New Brunswick.

357. The Residential Tenancies Act of New Brunswick is very clear on the fact that a Tenancy Rights under The Residential Tenancies Act of New Brunswick flow continuous and uninterrupted from the seller of a property (transferor) Betty Rose Danielski to the purchaser (transferee) 501376 N.B. Ltd, a body corporate, or any other purchaser, of the same property. Maxim - Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law. 358. The people of Manitoba, through the legislators of Manitoba saw fit to that s. 80 of the Manitoba Residential Tenancies Act requires the Mortgagee to bring its application in accordance with Part 6 of the Residential Tenancies Act, also the "landlord" definition of the Residential Tenancies Act includes (c) a mortgagee who attempts under the terms of the mortgage to evict a tenant from a rental unit;

359. The Ontario Mortgages Act, R.S.O. 1990, c. M, clearly indicates the priority of a Residential Tenancy to a Mortgage, section 47 and 48 are reproduced below as follows: 47(1) A person who becomes the mortgagee in possession of mortgaged residential premises which are the subject of a tenancy agreement between the mortgagor and a tenant or who obtains title to the residential premises by foreclosure or power of sale shall be deemed to be the landlord under the tenancy agreement.

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(3) A person who is deemed to be a landlord is subject to the tenancy agreement and to the provisions of the Landlord and Tenant Act which apply to residential premises. 48(1) No person exercising rights under a mortgage may obtain possession of residential premises from the mortgagors tenant except according to the provisions of the Landlord and Tenant Act which apply to residential tenancies. (2) A person exercising rights under a mortgage who gives notice of termination of a tenancy shall be deemed to be a landlord under subsection 47(1). 360. The Defendant wishes to emphasize that Both the Mortgage Act of Ontario and the Residential Tenancies Act of Manitoba make clear that, Canadian people, Canadian Law makers and Canadian Courts favour and recognize the importance of a mans residence and the security of the same over a Mortgage. The recurring theme is, that in effect the Residential Tenancies Act does and is trumping in priority, a financial instrument more commonly known as a Mortgage agreement.

361. A Mortgage is merely a promissory note, made by the Title holder of a property to the Bank, in this case The Royal Bank of Canada that the borrower Betty Rose Danielski will pay at some future date a sum of money according to certain conditions. In my understanding there is nothing extraordinary involved in this process, furthermore this is not a two party contract, only a note promising to pay a sum of money.

362. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) the Court explained at paragraph 3 and paragraph 4, the Tenants took possession

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of the property three months after the Mortgage became in default Status, as follows: 363. Furthermore it is worthy to note, the amount of time that Defendant Andre Murray was at the 29 Marshall Street and 31 Marshall Street Property was from 2005, to the present, well over 5 years time. This long length of time must add further right of possession to the Defendant Andre Murray and take a proportional right of possession away from Landlord Betty Danielski and the Royal Bank of Canada according to the following Maxim: Maxim - Longa possessio parit jus possidendi, et tollit actionem vero domino. Long possession produces the right of possession, and takes away from the true owner his action. Co. Litt. 110. G Security of property Maxim - Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law.

364. The Honorable Courts apply the appropriate law to preserve and protect free and democratic societies. To accomplish this task, the Courts have the opportunity to protect and promote the dignity and worth of the human person and the position of the family in a society of free men and free institutions, by choosing to promote and enforce the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law, which is the apparent purpose of the New Brunswick Residential Tenancies Act.

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365. The English Magna Carta, The United States constitution and the Canadian Charter of Rights stated clearly the relationship between life, liberty, and property; arguably there is no property more sacred than a mans home. The violation of ones home constitutes a serious affront to human dignity. The defendant deposes that the New Brunswick Residential Tenancies Act offers protection to a Residential Tenant, the purpose of the Act is to address the underlying seriousness of a violation of the sanctity of a person's Home. The New Brunswick Residential Tenancies Act should be read and broadly construed with the purposed notion of maintaining the dignity and integrity of the individual in mind. For the benefit of the Court coming to a fair and balanced decision, all these previously referred to documents enshrine the most important principal of law, expressed in the following maxim: The welfare of the people is the supreme law. Broom's Legal Maxims(max. 1-10), also Bacon's Maxims (reg. 12) 366. In Somwar v. McDonald's Restaurants of Canada Ltd., 2006 CanLII 202 (ON S.C.) SUPERIOR COURT JUSTICE STINSON J. addressed the right to privacy in Canada and how is it protected from paragraph 23 through to an including paragraph 30 as follows: [26] In Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (S.C.C.), [1995] 2 S.C.R. 1130 (S.C.C.), Cory J. discussed the approach that should be followed when a common law rule is alleged to be inconsistent with the Charter. Writing for the majority, he stated (at para. 92): Historically, the common law evolved as a result of the courts making those incremental changes, which were necessary in order to make the law comply with current societal values. The Charter represents a restatement of the fundamental values which guide and shape our democratic society and our legal

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system. It follows that it is appropriate for the courts to make such incremental revisions to the common law as may be necessary to have it comply with the values enunciated in the Charter. [27] .. the values underlying the Charter include respect for an individuals dignity and autonomy, values which are, in turn, closely tied to respect for and protection of an individuals privacy. Second, the Supreme Court has made it clear in cases as M. (A.) v. Ryan, 1997 CanLII 403 (S.C.C.), [1997] 1 S.C.R. 157, that the common law must develop in accordance with Charter values. 367. Furthermore, in R. v. Dyment, [1988] 2 S.C.R. 417, Justice La Forest J. stated, regarding the right to privacy and its relationship to human dignity at the following paragraphs 15 through to and including paragraph 23 as follows: 15. From the earliest stage of Charter interpretation, this Court has made it clear that the rights it guarantees must be interpreted generously, and not in a narrow or legalistic fashion; see R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (S.C.C.), [1985] 1 S.C.R. 295, at p. 344. The function of the Charter, in the words of the present Chief Justice, then Dickson J., in Hunter v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145, at p. 155 "is to provide ... for the unremitting protection of individual rights and liberties". It is a purposive document and must be so construed. That case dealt specifically with s. 8. It underlined that a major, though not necessarily the only, purpose of the constitutional protection against unreasonable search and seizure under s. 8 is the protection of the privacy of the individual; see especially pp. 159-60. And that right, like other Charter rights, must be interpreted in a broad and liberal manner so as to secure the citizen's right to a reasonable expectation of privacy against governmental encroachments. Its spirit must not be constrained by narrow legalistic classifications based on notions of property and the like which served to protect this fundamental human value in earlier times. Indeed, it may be confusing means with ends to view these inherited rights as essentially aimed at the protection of

16.

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property. The lives of people in earlier times centred around the home and the significant obstacles built by the law against governmental intrusions on property were clearly seen by Coke to be for its occupant's "defence" and "repose"; see Semayne's Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194, at p. 91 b and p. 195 respectively. Though rationalized in terms of property in the great case of Entick v. Carrington (1765), 19 St. Tr. 1029, 2 Wils. K.B. 275, 95 E.R. 807, the effect of the common law right against unreasonable searches and seizures was the protection of individual privacy. Viewed in this light, it should not be cause for surprise that a constitutionally enshrined right against unreasonable search and seizure should be construed in terms of that underlying purpose unrestrained now by the technical tools originally devised for securing that purpose. 368. The welfare of the people is the supreme law, therefore the right to privacy and private property, and again there is arguably no property more sacred than a mans home, is defended when the courts apply the values underlying the above referenced Canadian Bill of Rights to include respect for an individuals dignity and autonomy, values which are, in turn, closely tied to respect for and protection of an individuals Residential Property. Also, Bell, in her article, supra, stated the Supreme Court has made it clear in cases as M. (A.) v. Ryan, [1997] 1 S.C.R. 157, that the common law must develop in accordance with Charter values. 369. As SIR WILLIAM BLACKSTONE stated, supra The public good is in nothing more essentially interested, than in the protection of every individual's private rights. 370. Historically, the common law evolved as a result of the courts making those incremental changes, which were necessary in order to make the law comply with current societal values.

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371. One further general point must be made, and that is, if the individual's private property rights, dignity and integrity of the individual, is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. Invasions and intrusion of a mans home must be prevented, and where security of property as contemplated by the Residential Tenancies Act of New Brunswick is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated.

372. The Residential Tenancies Act of New Brunswick is a evolving statute, this evolution is moved along and furthered with regard for the private property of an individual and when the Courts rule in the favour of the people of New Brunswicks interests, the Courts are protecting every individual's private property rights, dignity and integrity of the individual, which in turn benefit the whole community. H Interpretation of Statutes 373. Furthermore, In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) Justice SCHWARTZ J stated the following: [38] I note that the Director argues that the current rule of statutory interpretation does not require irresistible clearness but rather the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. That is the language used by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27 where he delivered the judgment of an unanimous supreme court.

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[41] Having reviewed and considered its entire context, and applying the words of the R.T.A., and in particular the amended definition of landlord, in their grammatical and ordinary sense, harmoniously, with the scheme of that Act, its object and the intention of the Manitoba legislature, this Court must refuse the order of possession sought. The Mortgagee is bound to obtain possession in accordance with the R.T.A. 374. It is important to consider the Manitoba Residential Tenancies Act, in relation, to the New Brunswick Residential Tenancies Act, and consider the similarities, so that this Honourable Court may come to a similar decision.

375. When examining the New Brunswick Residential Tenancies Act we can easily understand the scheme of the Act, the object of the Act, and the intention of Parliament can be understood to mean the protection of the deeply cherished community value of the sanctity of the home. This well known and long recognized right devised for the protection of individual security applies to home of a man or woman and is the factor that makes Residential Tenancies so unique and warrants the protection of decisions of the Honourable Courts reflecting theses very principals. Interpretation of Statutes 376. In Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 Justice IACOBUCCI J. provided the following insight into the Principles of Statutory Interpretation from paragraph 26 though to and including paragraph 30 as follow: http://www.canlii.org/en/ca/scc/doc/2002/2002scc42/2002scc42.html

(1)

Principles of Statutory Interpretation

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26 In Elmer Driedgers definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedgers modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: 377. For comparison, let us review The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 which states: 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 378. We find a very helpful explanations of Interpretations of Statutes, in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, by Justice Iacobucci J. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Moreover, s. 10 of Ontarios Interpretation Act provides that every Act shall be deemed to be remedial and directs that every Act shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

379. The Defendant deposes that the intention of the New Brunswick Residential Tenancies Act, appears to be the protection of the people whom have residential tenancies, both Landlord and Tenant alike, which separates and

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differentiates residential tenancies from commercial tenancies, for the purpose of protecting and preserving the security a mans home. 380. As similarly stated above in Rizzo & Rizzo Shoes Ltd., supra, the Defendant wishes to bring the Courts attention, to recognize, the importance that our society accords to security of the home and the fundamental role that it has assumed in the life of the individual. The manner in which a Residential Tenant, can have his Residential Tenancy terminated, must be said to be of great importance, and the Defendant contends that the Role of the New Brunswick Residential Tenancies Act, is to legislate the very manner and circumstances surrounding that most concerning and often stressful event.

381. The New Brunswick Residential Tenancies Act requires Landlords to give their Tenants reasonable notice of termination based upon length of Tenancy and the type of Lease agreement which was signed. The objects of the termination of Tenancy provisions themselves are also broadly premised upon the need to provide fairness in the tenancy termination process. One of the primary purposes of this notice period is to provide both Tenants and Landlords with an opportunity to take preparatory measures and seek either alternative housing or replacement Tenants. It follows that the New Brunswick Residential Tenancies Act, which provides for prescribed termination of Tenancy times, in relation to the Lease Agreements, is intended to cushion both Tenants and Landlords against the adverse effects of economic dislocation likely to follow from the absence of an opportunity to search for either alternative housing or replacement Tenants in good time.

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382. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Ct, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile. The Defendant contends that to exempt the Royal Bank of Canada as a Mortgagee, from the jurisdiction of the New Brunswick Residential Tenancies Act, would defeat the purpose of the statute or render some aspect of it pointless or futile, namely security of Tenure, which appears to be the object of focus of the legislative enactment.

Residential Tenancies Act versus the Property Act 383. The most significant section of the Residential Tenancies Act is section 2 which explain what the Residential Tenancies Act applies to as follow: Residential Tenancies Act, S.N.B. 1975, c. R-10.2 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b) arising or entered into before or after this Act comes into force.

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384. To be absolutely clear the following definition of notwithstanding is from Black's Law Dictionary (8th ed. 2004),at Page 3378 as follows: NOTWITHSTANDING notwithstanding, prep. Despite; in spite of

385. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) Justice SCHWARTZ J. stared the following regarding statutory interpretation from paragraph 38 through to and including paragraph 39 as follows; [38] I note that the Director argues that the current rule of statutory interpretation does not require irresistible clearness but rather the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. That is the language used by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27 where he delivered the judgment of an unanimous supreme court. [39] Further the Director submits that the language of section 6 of The Interpretation Act of Manitoba, C.C.S.M., c. I80 requires the same conclusion. Rule of liberal interpretation 6 Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal interpretation that best ensures the attainment of its objects.

386. The Defendant, like the Director in Royal Bank Of Canada v. Zonneveld, supra, also argues that the current rule of statutory interpretation does not require irresistible clearness but rather the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention

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of Parliament. That is the language used by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27 where he delivered the judgment of an unanimous supreme court. Additionally the comparable section of the New Brunswick Interpretation Act, R.S.N.B. 1973, c. I_13 is as follows: 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 387. The Residential Tenancies Act of New Brunswick is a remedial act that is intended to protect the rights of Landlords and Tenants, large and liberal interpretation best ensures the attainment of its objects. Maxim - Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law. 388. The New Brunswick Residential Tenancies Act, Section 2 provides that 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; The Residential Tenancies Act, S.N.B. 1975, c. R-10.2 applies to tenancies such as the one of Defendant Andre Murray of residential premises such as 29 and 31 Marshall Street Fredericton New Brunswick and Tenancy agreements respecting such premises such as the one the Defendant has produced for the Honorable Courts consideration in the Record on Motion Book n 389. Except where otherwise specifically provided for in the Residential Tenancies Act, the Residential Tenancies Act applies to tenancies of

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residential premises and tenancy agreements respecting such premises, (a) notwithstanding (In spite of, even if, without regard to or impediment by other things as stated) the Landlord and Tenant Act or any other Act(the Property Act), agreement or waiver to the contrary. I A Brief History Tenancy 390. Defendant brought to the Courts attention the history of Tenancy evolving though its various forms. Common Law Tenancy leasehold estate Serfdom Socage Burgage Tenant farmer

J Modern Tenancy 391. Service New Brunswick provides the following information About the Office of the Rentalsman at the following URL: http://www.snb.ca/e/1000/1000-2/e/1000-2_003_e.asp About the Office of the Rentalsman 1. What is the Office of the Rentalsman? The Office of the Rentalsman, now part of Service New Brunswick, is a government service that provides information on rental obligations and rights, and helps landlords and tenants resolve problems without going to court. Services provided are governed by the Residential Tenancies Act. 2. What is the Residential Tenancies Act?

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The Residential Tenancies Act sets out rights and obligations and outlines the laws and rules that landlords and tenants must follow. 392. What is the difference between a residential tenancy and a commercial Tenancy? We can easily distinguish two types of modern tenancies, Residential Tenancies and Commercial Tenancies both having Acts passed to enforce and regulate these distinct Tenancies. 393. Answers.com provides the following definition: leasehold estate at the following URL: (http://www.answers.com/topic/leasehold_estate ) The landlord and tenant relationship usually refers to a living arrangement. .. Because living arrangements are vital to human existence, landlord and tenant relationships are treated differently from lease contracts. 394. Duhaime.org provides the following definition Tenancy at the following URL: http://dev.duhaime.org/LegalDictionary/T/Tenancy.aspx Tenancy A contract by which the owner of real property (the landlord), grants exclusive possession of that real property to another person (tenant), in exchange for the tenant's periodic payment of some sum of money (rent). Most jurisdictions have considerably supplemented the common law by enacting statutes which deal with commercial or residential tenancies. For example, in the Canadian jurisdiction of Ontario, there is both a Commercial Tenancies Act and a Residential Tenancies Act. 395. Lectlaw provides the following Residential Tenancy definition at the following URL: http://lectlaw2.securesites.net/def2/q039.htm RESIDENTIAL LEASE A lease that applies to property used as a residence

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396. We can see the clear distinction between Commercial Tenancies and Residential Tenancies; the remarkable and significant difference exists because residential tenancies directly impact the sanctity of a mans home and intrusions on the liberties of the people. 397. The Province of British Columbia has separate Acts to deal with each of the unique tenancy regulations, Residential Tenancy Act, S.B.C. 2002, c. 78 and the Commercial Tenancy Act, R.S.B.C. 1996, c. 57. 398. New Brunswick has the Residential Tenancies Act, S.N.B. 1975, c. R_10.2 and the Landlord and Tenant Act, R.S.N.B. 1973, c. L-1, the Landlord and Tenant Act being the act which deals with Commercial Tenancy and basically any non-residential Tenancies. 399. In New Brunswick the Office of the Rentalsman is appropriately delegated to intervene when necessary to protect the residential rights of both Landlord and Tenants.

400. For a further exploration of the history of tenancy law in New Brunswick let us review the following Supreme Court of Canada decision Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186. Within Justice Wilson J., for the majority stated After all, the Constitution is a document for the people and one of the most important goals of any system of dispute resolution is to serve well those who make use of it. And the concept of a residential tenancy is largely a phenomenon of modern and urban society. Upon reviewing the history of Residential Tenancies laws in New Brunswick and in consideration of the material presented in the Supreme Court of Canada

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decision Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186, from this Court case we can conclude: "[i]n this social context, it is not surprising that in 1867, neither the common law nor the legislature singled out residential tenancies as a particular legal jurisdiction. But by the late 1960's, times had changed. Many more people were renting their accommodations, and the governing laws were considered unfair". However, the concept of a residential tenancy is largely a phenomenon of modern and urban society. . . . the province, reacting to the growing needs of people in rented living accommodation, has chosen to codify the law of residential tenancies and to provide a simple, accessible and inexpensive procedure for settling disputes between landlords and tenants far removed from the manner in which s. 96 courts exercised their landlord-tenant jurisdiction at the time of Confederation. As Dickson J. recognized in Re Residential Tenancies Act, 1979, supra, at p. 718, there is no question that the law of landlord and tenant is not novel. As early as 1587 Lord Coke observed that the law of landlord and tenant was vital since "for the most part, every man is a lessor or a lessee" The law in this country relating to residential tenancies has passed through three basic stages. 1. The common law of landlord and tenant, over the centuries, has not developed any legal philosophy based on a theory of vital interests. The single most important feature of landlord and tenant law is the existence of the leasehold "estate" of the tenant. The vesting of the estate in the tenant underlies the rather fixed nature of the law and has caused courts to determine the rights of tenants according to rigid land law principles rather than in accordance with the more realistic development of contract and tort law which would likely apply in the absence of the estate theory.

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2. The second stage, beginning in the 1970s, "represented a clear policy choice on the part of the Legislature to place the relationship between landlord and tenant on a purely contractual basis, and move away from the notion that, with respect to residential tenancies, the tenant has a leasehold estate conferring an interest in land" (Law Reform Commission of British Columbia, supra, at p. 95). The purpose behind the change was to promote "security of tenure and quiet enjoyment by tenants" (Re Pepita and Doukas (1979), 101 D.L.R. (3d) 577 (B.C.C.A.), at p. 590). As Professor MacNeil in "Property in the Welfare State" (1983), 7 Dalhousie L.J. 343, at p. 355, notes, "[t]he legal rules regulating the landlord_tenant relationship in Canada were founded upon English common law conceptions of rights in land", and this approach was "no longer suitable to either the commercial realities or the social and economic aspects of urban living". 3. The third stage "represented a shift towards the policy view that the law respecting residential tenancies should be neither leasehold nor contractual but rather should involve a distinct, comprehensive statutory code governing the residential tenancies relationship" (Factum of the Attorney General of Manitoba, at p. 12). This concept of a comprehensive code which is imposed independently of any contractual arrangement is reflected in s. 3 of the Nova Scotia statute, the Residential Tenancies Act: Application of Act 3 (1) Notwithstanding any agreement, declaration, waiver or statement to the contrary, this Act applies when the relation of landlord and tenant exists between a person and an individual in respect of residential premises. Like the Young Offenders Act, the Nova Scotia Residential Tenancies Act has carved out a distinct branch of landlord-tenant law and developed a complete code to govern the residential tenancy relationship. The relationship is no longer based on either land law or the law of contract and tort.

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As a policy matter, provinces did not begin studying residential tenancy matters until after 1960 and consequently provincial legislation concerning residential tenancies as a distinct aspect of the landlord and tenant relationship did not emerge until after 1970. As a subject matter, one is hard pressed to find in landlord and tenant treatises any substantive treatment of residential tenancies until 1970. (For example, see Williams' Canadian Law of Landlord and Tenant (4th ed. 1973) and Woodfall's Law of Landlord and Tenant (28th ed. 1978).) It also appears that few residential tenancy matters found their way into our courts prior to 1970. The broad and distinct social policy goals of the legislature can be said to be the creation of a comprehensive regulatory scheme to deal with residential tenancies inexpensively and expeditiously. It is aimed, at least in part, at addressing a perceived imbalance in the residential landlord and tenant relationship: Re Residential Tenancies Act, 1979, supra, at p. 718. The residential tenancy scheme under consideration here establishes the statutory rules which are to govern every aspect of the residential landlord and tenant relationship and contemplates resolution of disputes through mechanisms of investigation, mediation, and ultimately adjudication where that becomes necessary The legislation as a whole provides both substantive and procedural protection to both residential landlords and tenants. The substantive protections are those which deal with minimum lease requirements, security deposits, tenancy terminations and the like. Procedurally, it offers an inexpensive and speedy mechanism for the investigation and resolution of disputes. The legislation also imposes new obligations on both residential landlords and tenants, it is an Act of a clearly social nature which reflects a distinct evolution since 1867 and a completely different notion of residential landlord and tenant relations from that which existed at that time. Residential leases may be properly contrasted with commercial leases, many factors point to an identifiable social policy that is different from analogous legislation (i.e. Landlord and Tenant Acts).

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To paraphrase Lord Simonds in John East, supra, at p. 150, it is in light of this new conception of residential tenancies that the question to be determined must be viewed and it finds no analogy in those issues which were familiar to the courts of 1867.

401. The Defendant argues that, as referred to above, in light of this new historical conception, Residential Tenancies Act issues find no analogy in those issues which were familiar to the courts of 1867. Society has evolved from the previously acceptable concepts of Serfdom, Socage, Burgage, and the Tenant Farmer. The Courts should and are evolving along with societal changes to reflect that change, which is: living arrangements are vital to human existence, landlord and tenant relationships are treated differently from other commercial leasehold contracts, hence we now have Residential Tenancies Acts as statutory protections from abuses in Residential Tenancy relationships.

402. When considering and giving weight to the arguments and case law presented by the Plaintiffs, the Court should consider the differences in the Legal landscape before 1970s considering that the Courts were making decisions at that time without the benefit of the statutory interpretations of the peoples rights under Residential Tenancies Acts, and furthermore, the Courts were not long ago only considering balancing the rights of individuals, using strict contract law ,considering that wealthy individuals where the one receiving Mortgages (not Banks or other financial institutions) and at the time the subject property was transferred to them (Mortgagee) until the Mortgage was fully paid. K What is a mans home?

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Maxim - Perspicua vera non sunt probanda. Plain truths need not be proved. Co. Litt. 16. 403. The English Magna Carta, The United States constitution and the Canadian Charter of Rights stated clearly the relationship between life, liberty, and property; moreover, there is arguably no property more sacred than a mans home. The principal of the sanctity of the home serves to protect the security of the person and individual privacy is deeply rooted in our traditions. To understand the importance of the sanctity of a mans residence and therefore his home, it may assist the Court to review the following legal history concerning a mans home. 404. Duhaime.org provides further historical reference to the Semayne's Case at the following URL: http://www.duhaime.org/legaldictionary/S/SemaynesCase.aspx Semayne's Case A 1604 English case that established the right of a home-owner to defend his premises against intrusion ("every man's house is his castle") yields to those seeking to enter with lawful authority such as to make an arrest. The case, cited as Semayne's Case 77 E.R. 194 included these words: "That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose. 405. Furthermore, let us review of the sanctity of the home, that everyone must not only be, but feel, secure in their residence., The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public's confidence in the administration of justice as expressed in R. v. Lyons, 2007 NBQB 91

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(CanLII) by Mr. Justice Riordon found at the hollowing URL: http://www.canlii.org/en/nb/nbqb/doc/2007/2007nbqb91/2007nbqb91.html [33] A home invasion offence is serious. In the recent Ontario Court of Appeal decision of R. v. Wright [2006], O.J. No. 4870, said as follows in paragraphs 13, 14 and 15: 14 As this court also noted in S.(J.), supra, at para. 34, home invasion offences are particularly troubling "because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes - highly cherished values in our society - and because they are frequently perpetrated against vulnerable individuals." They must therefore be dealt with sternly by the courts. This concern was eloquently captured by Trafford J. in R. v. Soares, [1996] O.J. No. 5488 (S.C.J.) [See Note 5 below] at para. 286. The sanctity of one's home is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be, but feel, secure in their residence. . The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public's confidence in the administration of justice. Furthermore, we can see that the common law sets a high value on the security and privacy of the home. The zealous and frequent repetition of the adage that a "man's house is his castle," made it abundantly clear that both in England and in the Colonies "the freedom of one's house" was one of the most vital elements of English liberty. Is expanded on and explored at length in the following case of R. v. Landry, [1986] 406. We can see that the common law sets a high value on the security and privacy of the home. "a man's house is his castle," made it abundantly clear that both in England and in the Colonies "the freedom of one's house" was one

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of the most vital elements of English, Canadian and North American liberties. Explored at length above in case of R. v. Landry, [1986], which can be summed up as follows: The principle that a man's home is his castle along with the demonstrably justifiable exceptions developed under the old common law have constituted an excellent balance between the security and privacy of the individual and the needs of law enforcement since their enunciation in Semayne's Case. If Parliament finds it necessary to adjust the balance, it can do so. It is in a far better position to provide for the precise balance than the courts. Apart from the compelling exceptions allowed by the common law, it is not reasonable for a policeman to be permitted to enter a private home without consent unless he has a warrant authorizing him to do so. Invasion of a person's home, in circumstances like these, is too high a price to pay to prevent the possible escape of some criminals, especially for non-violent crimes. For these principles, we go back to vintage common law, to 1604, and Semaynes Case, in which the principle, so firmly entrenched in our jurisprudence, that every man's house is his castle, was expressed in these words: "That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose ...". That, then, is the basic principle, as important today as in Biblical times (Deuteronomy 24:10) or in the 17th century. The sanctity of the home is deeply rooted in our traditions. It serves to protect the security of the person and individual privacy. The same thought was expressed as early as 1604 in the language of the day in the first proposition of the celebrated Semaynes Case. Though it was a civil case, it discusses the limitations then recognized by the common law in both civil and criminal matters. What speaks even more eloquently is the silence of the law reports on the issue. For over two hundred years after Semaynes Case, there was not a single reported case holding that a constable may enter a man's house to arrest him without a warrant on the basis of reasonable and

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probable cause. Given the stout opposition Englishmen have traditionally displayed in the face of even marginal intrusions by state authority, it seems unlikely that the police purported to act on the basis of such power in those years As has been seen the common law sets a high value on the security and privacy of the home. "abuses of police power will rarely affect respectable members of the middle classes", but will instead "focus on the poor and on marginal, minority groups". The Canadian Charter of Rights and Freedoms clearly tells us that certain fundamental rights, including the security of the person, fall within the constitutional protection of the courts. That is, I think, the proper role of the courts. Seemingly minor intrusions on fundamental principles of the type they might have been tempted to make in the past are dangerous The security and privacy of the individual 407. A free society has liberties based and grounded on the importance of the sanctity, security and privacy of the individual mans home. A residential home whether owned free and clear, mortgaged or rented is still a home. The Semayne's Case which reflects and embodies the Maxim: his Castle, sanctity principals equally apply to all residences. a Mans Home is

408. As stated above, abuses of power will rarely affect respectable members of the middle class, but will instead focus on the poor and on marginal, minority groups, which is why it so vitally important, for the Court to uphold the fundamental, cost effective mechanism of the New Brunswick Residential Tenancies Act. Few breaches of community values are more likely to incense the public than the invasion of a person's home, as has been seen the common

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law sets a high value on the security and privacy of the home. The New Brunswick Residential Tenancies Act Statute, is providing, a cost effective remedy, for those who cannot afford the prohibitive realities of hiring as lawyer to aid in residential dispute resolution, through the Court.

409. The Canadian Charter of Rights and Freedoms clearly tells us that certain fundamental rights, including security of the person, fall within the constitutional protection of the courts. The New Brunswick Residential Tenancies Act, is clearly an extension of those fundamental rights. The Courts have the discretion to rule in the favor of the people of New Brunswick, over the actions and questionable financial gains made by publicly traded for profit corporations, these Court decisions should highlight the importance we attach to the integrity of the home in this country. L Law of Agency M Lease Power of Attorney 410. A CONTINUING POWER OF ATTORNEY FOR PROPERTY was created November 14, 2002, signed to Richard Boileau by Title Holder Betty Rose Danielski. This agency power is evidenced by a CONTINUING POWER OF ATTORNEY FOR PROPERTY document, dated November 14, 2002 ( see RECORD ON MOTION BOOK 1 OF 2 TAB 5 ).

411. Acting as agent for Betty Rose Danielski, CONTINUING POWER OF ATTORNEY FOR PROPERTY Richard Boileau, signed a Residential Tenancies lease with Defendant Andre Murray, Dated September 1, 2005,

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among others, regarding Tenancy at 29 Marshall Street and 31 Marshall Street, Fredericton New Brunswick. which have the full legal affect of Betty Rose Danielski signing the leases herself in the Landlord capacity. N Mortgage 412. TitleHolder Betty Rose Danielski signed a Mortgage to the Royal Bank of Canada. The mortgage note signed by Titleholder Betty Rose Danielski, in which the Titleholder Betty Rose Danielski promises to repay a debt, sets out the terms of the transaction and does not create new powers which had not existed, before the signing of the mortgage note, negating or compromising any of the rights guaranteed to Tenants by the Residential Tenancies Act of New Brunswick regarding Residential Tenancies.

413. Elements of a Contract A contract is an agreement reached after sufficient consideration to do, or refrain from doing, some legal action. A contract is considered valid when two or more parties with capacity make an agreement involving valid consideration to do or to refrain from doing some lawful act. If these elements exist, the contract is valid.

If one or more or these necessary elements is missing, the contract is void or voidable. In other words, it is not a true contract and therefore cannot be enforced.

414. The claims by the Plaintiffs, that the Mortgage, somehow negates, cancels or compromises any of the rights guaranteed by the Residential Tenancies Act

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of New Brunswick, are unfounded and in error and would render the Mortgage unlawful and the Mortgage would therefore be void.

415. A Mortgage can be defined as a promissory note. Section 176 of the Canadian federal Bills of Exchange Act defines a promissory note to be an unconditional promise in writing made by one person to another person, signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person or to bearer. In it simplest terms, the Defendant Comprehends that a promissory note is a written promise to repay a loan or debt under specific terms - usually at a stated time, through a specified series of payments, or upon demand.

416. Black's Law Dictionary (8th ed. 2004), at Page 988 provides the following definition of UNILATERAL contract as follows: unilateral contract. A contract in which only one party makes a promise or undertakes a performance; a contract in which no promisor receives a promise as consideration for the promise given 417. Black's Law Dictionary (8th ed. 2004), at Page 3198 provides the following definition of MORTGAGE as follows: mortgage (mor-gij), n. 1. A conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon payment or performance according to the stipulated terms. Also termed (archaically) dead pledge. 2. A lien against property that is granted to secure an obligation (such as a debt) and that is extinguished upon payment or performance according to stipulated terms. 418. Duhaime.org provides the following definition for mortgage at the following URL: http://www.duhaime.org/LegalDictionary/M/Mortgage.aspx

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Mortgage An interest given on a piece of land, in writing, to guarantee the payment of a debt or the execution of some action. . At common law, the mortgage was far more pervasive upon the mortgagor and in fact and in law constituted a conveyance of title to the mortgagee until the debt was paid, rather than, as is the case now in some jurisdictions, of only kicking-in if there is a default on the loan agreement. Under the severe terms of a common law mortgage, a frequent dispute would arise as to who was entitled to crops grown on mortgaged land: the mortgagee or the mortgagor, as the common law mortgage vested title, with right to possession and revenues, in the mortgagee. The more modern form of a mortgage is often referred to as a conventional mortgage to distinguish it from the older version and more austere common law mortgage. 419. The Residential Tenancies Act, of New Brunswick, contains the word Mortgagee and clearly indicates that the Subsections (7), (8) and (9) do not apply where the landlord transfers an estate in the property to a mortgagee solely for the purpose of mortgaging the real property of which the premises form all or a portion. which indicates that a Mortgage Note does not transfer the estate in property to the Mortgagee according to this Residential Tenancies Act.

420. The Residential Tenancies Act of New Brunswick does not create, or confer special powers to a Mortgagee to act in any way outside the scope of The Residential Tenancies Act of New Brunswick.

421. The Residential Tenancies Act of New Brunswick is very clear on the fact that Tenancy Rights under The Residential Tenancies Act of New Brunswick

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flow continuous and uninterrupted from the (transferor of a property) Betty Rose Danielski to the (transferee) 501376 N.B. Ltd, a body corporate, or any other transfer of Property Title ownership.

422. The Residential Tenancies Act of New Brunswick section 13(7), 13(8), 13(9) and 13(9.1) does not indicate a distinction between a private purchase or an auction purchase of the subject property during Property Title Transfer.

423. Furthermore, the following is the relevant sections of The Residential Tenancies Act, Acts of New Brunswick, 1975, c.R-10.2, s.9 2 .. this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary 424. Betty Rose Danielski signed a Mortgage to the Royal Bank of Canada, as she was entitled to as Titleholder of the 29 and 31 Marshall Street, Fredericton New Brunswick property. The mortgage note Betty Rose Danielski signed, in which as the borrower Betty Rose Danielski promises to repay a debt. The terms are limited to the transaction not creating, new powers affecting residential tenancies negating or compromising any of the rights legislated by the Residential Tenancies Act of New Brunswick, which had not existed before the signing of the mortgage note. Maxim - Nemo potest facere per alium, quod per se non potest No one can do through another what he cannot do himself. 425. The Residential Tenancies Act of New Brunswick clearly indicates that an agreement or waiver, which abrogates the rights granted under the Residential Tenancies Act of New Brunswick is null and void.

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426. The Residential Tenancies Act of New Brunswick allows Property Title Holder Landlord Betty Rose Danielski to sign a lease through power of attorney with Defendant Tenant Andre Murray, but this same act does not allow Property Title Holder Landlord Betty Rose Danielski to confer any powers onto the Mortgagee that she herself does not have, which in any way may abrogate the rights of a tenancy under the residential Tenancies Act of New Brunswick.

427. The Mortgagee Royal Bank of Canada or its agents have no more right to evict a tenant in good standing than does the Mortgagor Landlord Betty Rose Danielski under the Residential Tenancies Act of New Brunswick. O Let the purchaser beware 428. The Maxim Caveat emptor (Hob. 99) _ "let the purchaser beware" applies to a purchaser of property whether or not a Mortgage exists. 429. The Defendant Andre Murray has brought to the Court attention, a lease, signed Sept 1, 2005. The lease is signed by Andre Murray and the Power of Attorney Richard Boileau on behalf of and to the benefit of Registered Property Title Holder Betty Rose Danielski to the property of 29 and 31 Marshall Street, Fredericton New Brunswick.

430. Since, 2005 the Defendant has maintained the duplex property located at civic address 29 and 31 Marshall Street, in the City of Fredericton. The Land Titles Act of New Brunswick distinguished the importance of possession, in relation to leases.

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Maxim - Possession is nine-tenths of the law. 431. As stated before the subject Lease travels uninterrupted from transferor Landlord Betty Rose Danielski to transferee purchaser at the Mortgage Auction, 501376 N.B. Ltd., a body corporate, or any other purchaser.

432. The following Maxim is most important for the continuation of the public welfare and the preservation of the good of the people: Maxim - A public law or right cannot be altered by the agreements of private persons.

433. The Residential Tenancies Act, S.N.B. 1975, c. R-10.2 clearly states this very principal in Section 2 as follows: 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b) arising or entered into before or after this Act comes into force. 434. No one many contract away, the rights guaranteed to Tenants or Landlords by The Residential Tenancies Act of New Brunswick. Furthermore the following Maxim applies: The law will not intend a wrong, Bacon's Maxims (17, reg. 3) 435. Defendant Andre Murray verily believes that the Residential Tenancies Act was created to protect the Tenants and Landlords from abuse and as the Maxim above states the law will not intend a wrong.

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436. Furthermore, in the present case the acting Agent Hugh Cameron for the Purchaser, 501376 N.B. Ltd, a body corporate, signed a AGREEMENT TO PURCHASE, dated July 16, 2009 (see RECORD ON MOTION BOOK 1 OF 2 TAB - 29) which stated the purchaser accepts the real estate, subject to existing tenancies, at paragraph 8: 8. Deeds of conveyance with respect to real estate will be delivered against receipt of the balance of the purchase price as aforesaid. The purchaser accepts the real estate, subject to existing tenancies, and any registered restrictive covenants, is any, as they exist at the date thereof. 437. The purchaser, 501376 N.B. Ltd, a body corporate entered into a two party contract tentatively negotiating purchase of an investment instrument called Mortgagee Deed, which was subject to existing tenancies which included the Tenancy of Defendant Andre Murray inter alia. Maxim No rule of law protects a buyer who willfully closes his ears to information, or refuses to make inquiry when circumstances of grave suspicion imperatively demand it. Maxim- nvitat culpam qui peccatum praeterit Translation: Pardon one offence and you encourage the commission of many 438. This Honorable Court may now use this opportunity to preserve the rights of the people of New Brunswick, and aid those people, the current and future Residential Tenants of New Brunswick, who may be faced with similar economic genocidal circumstances.

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439. It is not just that any Residential Tenant in New Brunswick would be facing similar situations and would be defeated in their tenancy rights by those who manipulate the legal process therefore causing the Administration and distribution of Justice to simply be cost prohibitive reality. 440. Defendant Andr Murray has not located copious critical legal studies regarding these matters, nor has there been much substantive materials found on the subject, such that its lack of existence leads to the occurrence of a given event or the existence of a given thing which is merciless predatory evictions. It substantive material is suspiciously absent and or sufficient to offer as precedent before this Honorable Court. This must be considered to be so, not because householders do not mind vacating their homes at the beckon whims of any financial investment institutions liquidating their financial Mortgage instrument. But more likely because Residential Tenants tend to live from pay check to pay check and are not likely to be able to financially afford the extensive legal costs required to successfully litigate such matters. Given the option of abandon your lease, and spending a few hundred dollars moving out of the Residence in question, instead of alternatively to do what is difficult, stressful, morally right requiring the investment of thousands of dollars in time and or money litigating the matter, however this, is often given little consideration, as is evident by the present case material or lack thereof on the subject matter.

441. Defendant comprehends the absence of case law, substantive material or precedence, as the result of the reality of the Residential Tenants Relationship being of a non-commercial nature; when relating to the management of material wealth, as of the householder or Tenant in the subject matter. As for relating to

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the practical necessities of life, Tenants defending their Tenancy in such circumstances as found elaborated herewithin are not financially rewarding to the Tenants, consequently Justice is rather cost prohibitive.

442. The Defendant pursued a fierce combination of determination and hard work. ... Each on a path in search of the truth and justice, it is this Honourable Courts discretion to find in favour of all Residential Tenants of New Brunswick, and in doing so, establish the new status quo.

P Property Act verses the Residential Tenancies Act 443. The distinguishing section of the Residential Tenancies Act is Section 2 is reproduced below as follow: 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary;

444. When the key words of section 2 of the Residential Tenancies Act, are defined it reads as follows: 2 Except where otherwise specifically provided for in this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2 ), this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2 ) applies to tenancies (a person is granted the right to possess premises in consideration of payment of rent) of residential premises (any house, dwelling, mobile home, apartment, flat, tenement or similar place that is occupied or may be occupied by an individual as a residence) and tenancy agreements (means an agreement whereby a person is granted the right to possess premises in consideration of payment of rent) respecting such premises (any house,

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dwelling, mobile home, apartment, flat, tenement or similar place that is occupied or may be occupied by an individual as a residence), (a) notwithstanding (Despite; in spite of) the Landlord and Tenant Act or any other Act (including the Property Act, R.S.N.B. 1973, c. P-19), agreement (Mortgage Agreement / Promissory Note) or waiver to the contrary (Contract), arising or entered into before or after this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2) comes into force.

445. Furthermore, regarding obligations with respect to the tenancies, Section 13 (7),(8), and (9) of the Residential Tenancies Act, reads as follows: 13(7) Where a landlord transfers his estate in the real property of which the demised premises form all or a portion (a) the transferee assumes all of the obligations with respect to the tenancy; and (b) no action lies against the transferor for any obligation with respect to the tenancy; arising after notification of the transfer takes place in accordance with subsection (8). 13(8) Where a landlord transfers his estate in the real property of which the demised premises form all or a portion he shall notify the rentalsman and the tenant of such transfer in the form prescribed by regulation within seven days after such transfer. 13(9) Where pursuant to subsection (7) a transferee assumes the obligations with respect to a tenancy, he is a landlord for all purposes of this Act. 13(9.1) Subsections (7), (8) and (9) do not apply where the landlord transfers an estate in the property to a mortgagee solely for the purpose of mortgaging the real property of which the premises form all or a portion.

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446. When the key words of section 13(7), (8), (9) and (9.1) of the Residential Tenancies Act, are defined, it reads as follows: 13(7) Where a landlord (One who leases real property to another) transfers his estate in the real property of which the demised premises (Leased property) form all or a portion (a) the transferee (One to whom a property interest is conveyed) assumes all of the obligations with respect to the tenancy (means an agreement whereby a person is granted the right to possess premises in consideration of payment of rent); and (b) no action lies against the transferor (One who conveys an interest in property) for any obligation with respect to the tenancy (means an agreement whereby a person is granted the right to possess premises in consideration of payment of rent); arising after notification of the transfer takes place in accordance with subsection (8). 13(8) Where a landlord (One who leases real property to another) transfers his estate in the real property of which the demised premises (Leased property) form all or a portion he shall notify the rentalsman and the tenant (One who pays rent for the temporary use and occupation of another's land under a lease or similar arrangement) of such transfer in the form prescribed by regulation within seven days after such transfer. 13(9) Where pursuant to subsection (7) a transferee (One to whom a property interest is conveyed) assumes (accepts responsibility of) the obligations with respect to a tenancy (means an agreement whereby a person is granted the right to possess premises in consideration of payment of rent), he is a landlord (One who leases real property to another) for all purposes of this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2). 13(9.1) Subsections (7), (8) and (9) do not apply where the landlord (One who leases real property to another) transfers an estate in the property to a mortgagee (One to whom property is mortgaged) solely for the purpose of mortgaging (Convey (a property) to a creditor as security on a loan) the real property of which the premises (A house or building, along with its grounds) form all or a portion.

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447. The Defendant comprehends that sections 13(7), (8), (9) and (9.1) of the Residential Tenancies Act, when read in the above referenced interpretive language, including the above definitions, clearly express that, the authors of the Residential Tenancies Act, undoubtedly contemplated the possible ramifications of a residential leasehold tenancy at a mortgaged property therefore, the authors clearly intended to and clearly have included legislation which would not exempt a Mortgagee from the full effect of the Residential Tenancies Act. 448. Leaving nothing merely implied, the Residential Tenancies Act addresses the act of Mortgaging the Property confirming that assignment of a Mortgage does not transfer the Title and responsibilities of the Landlord on to the Mortgagee, instead and quite to the contrary, pursuant to the Residential Tenancies Act, the Mortgaged property is still considered to be under the care and control of the Landlord of that Mortgaged property.

449. The Residential Tenancies Act clearly transfers the obligations of a Landlord (transferor) uninterrupted onto the Transferee in a Real-estate transaction, even a Real-estate transaction pursuant to the Property Act, R.S.N.B. 1973, c. P-19. 450. Furthermore, the Property Act, R.S.N.B. 1973, c. P-19, section 47(1) clearly provides that a Mortgagee exercising the power of sale, transfers that property subject to all estates, interests and rights that have priority to the Mortgage, priority rights such as those entrenched within the Residential Tenancies Act and assigned to the Tenant.

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451. The relative section 47(1), of the Property Act, R.S.N.B. 1973, c. P-19 is provided below. Property Act, R.S.N.B. 1973, c. P-19 47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estate, interests and rights to which the mortgage has priority, but subject to all estates, interests and rights that have priority to the mortgage.

452. When the key words of section 47 (1) of the Property Act, R.S.N.B. 1973, c. P-19, are defined, the following is the result. A mortgagee exercising the power of sale conferred by section 44 (section 44 of the Property Act) may convey the property (Mortgage) sold (at auction), for such estate and interest therein as is the subject (having relevance to the current discussion) of the mortgage (prior written agreement) freed (to relieve or rid of what restrains, confines, restricts) from all estates, interests and rights to which the mortgage has priority (The status of being higher in degree or rank, pursuant to the Property Act ), but subject (exposed, or liable/ to bring under control or dominion) to all estates, interests and rights (subject of a right - The owner of a right; the person in whom a legal right is vested, in this case a Tenant, one who holds or possesses lands or tenements by any kind of right or title.) that have priority (The status of being higher in degree or rank, specifically a Tenants rights, pursuant to the Residential Tenancies Act, notwithstanding/ despite any other Act), to the mortgage.

453. Further on this point of interpretation, Defendant notes that The Property Act section 47(1) makes a clear distinction between the conditions of freed from and comparatively its opposite or antonym subject to.

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454. When the Property Act section 47(1) is read with the above referenced antonyms, the following is understood: 47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed (released) from all estate, interests and rights to which the mortgage has priority, but subject (confined) to all estates, interests and rights that have priority to the mortgage.

455. When the Property Act section 47(1) is read with the above referenced antonyms, the following is understood: 47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from (unaffected by) all estate, interests and rights to which the mortgage has priority, but subject to (affected by) all estates, interests and rights that have priority to the mortgage. 456. As demonstrated and comprehended by the Defendant, the Property Act, R.S.N.B. 1973, c. P-19, section 47(1), when interpreted with the above provided referenced definitions, clearly provides that a Mortgagee exercising Power of Sale, (a provision within the New Brunswick Property Act.), therefore, transfers such property subject to or confined to all estates, interests and rights and or is subject to such rights as are notwithstanding the New Brunswick Property Act., such as those within the Residential Tenancies Act; the Defendant claims shelter of the law found within the Residential Tenancies Act, Laws affording rights which are notwithstanding the New Brunswick Property Act., therefore, causing all relative encumbrances/obligations attributed to the Tenant must travel uninterrupted, remain intact and transferable to a Tenant, from the seller to the purchaser of the Property.

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457. For further clarification, let us review The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 which states: 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 458. The very helpful explanations of Interpretations of Statutes, is provided in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, by Justice Iacobucci J. at paragraph 21 and 27, there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

459. When examining the New Brunswick Residential Tenancies Act we can easily understand the scheme of the Act, the object of the Act, and the intention of Parliament can be comprehended to enshrine the Law with capacity and mandate for protection of the deeply cherished community value of the sanctity of the home. This well known, well recognized, established principle of Right of the sanctity of the home, devised for the protection of individual security, applies to all homes of a man or woman and is the factor that makes Residential Tenancies so unique, in reflecting these very principals.

460. The Defendant will refer to and rely on the well established principle of statutory interpretation, that: the legislature does not intend to produce absurd consequences.

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an interpretation may be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment a label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.

461. The Defendant argues that a label of absurdity must be attached to interpretations of the Residential Tenancies Act, that, which may defeat the purpose of a statute or render some aspect of it pointless or futile. The New Brunswick Residential Tenancies Act., includes the defining terms of application of the Act to be, NOTWITHSTANDING the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary, therefore, the situation is made abundantly clear and behoves the reader of the New Brunswick Residential Tenancies Act. to avoid the absurdity of an interpretation of the Residential Tenancies Act, to somehow, not be applicable to Mortgaged premises sold at Auction pursuant to the Property Act. 462. The New Brunswick Residential Tenancies Act, Section 2 provides that: Except where otherwise specifically provided for in this Act Residential Tenancies Act, this Act Residential Tenancies Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding (in spite of, even if, without regard to or impediment by other things as stated) the Landlord and Tenant Act or any other Act (the Property Act), agreement or waiver to the contrary.

Cost Orders in favor of self-represented litigants 463. The Defendant offers that after due consideration, this Honorable Court may conclude similarly as in McNichol v. Co-operators General Insurance

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Company, 2006, supra, that the case before this Honorable Court is one that calls for the exercise of the Honorable Courts discretion under Rule 59.01 in a manner favorable to the self-represented Defendant.

464. For convenience of this Honorable Court reproduced below Rule 59.01, of the Rules of Court as follows: 59.01 Authority of the Court (1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid. 465. As similarly stated above in McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may make the similar observations and consider before awarding costs with regard to the blatantly frivolous, irresponsible and callous behavior, of Plaintiffs in this matter, further, the nature of the countless irregularities in Court Document Process Service contributing to the improper and inaccurate evidence provided by counsel for the Plaintiffs at the subject October 20, 2009 Hearing, before this very Court.

466. Following the lead of the above Court in McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may find it appropriate to Order the Plaintiffs to pay costs throughout, which may be similarly fixed at $5,000, in addition to all reasonable disbursements.

467. As similarly stated in Fong, et al v. Chan, et al, 1999, supra, Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to work ordinarily done by a lawyer retained for litigation, and that as a result, self represented litigants incurred an opportunity cost by foregoing remunerative activity such as the self represented

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Defendant before this Court. It is abundantly clear that the self represented Defendant in this matter devoted copious amounts of time over many months of his life and exhaustive effort to present interesting and thought-provoking legal argument ordinarily expected of a lawyer, further is evidenced by the quality and voluminous material presented for consideration to this Honorable Court.

468. As is well established by the Courts lay litigants may recover costs, including counsel fees; this is a clear trend of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

469. As stated in Fong, et al v. Chan, et al, 1999, supra, as a matter of principle, it seems difficult to justify a categorical rule denying recovery of costs by self-represented litigants.

470. As stated above in Fong, et al v. Chan, et al, 1999, supra, paragraph 22 modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. Remaining consistent with the above here within paragraph trial judges may use their discretion to award costs to self-represented litigants. 471. Self-represented lawyers (members of Law Society) are entitled to indemnity on the time is money or opportunity cost rationale and it is difficult to appreciate why the opportunity cost rationale should not be applicable to self-represented litigants, such as the Defendant in this matter, before this Honorable Court.

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472. Self-represented litigants must possess skills for which they customarily are remunerated on their regular work week basis, and if the law is prepared to compensate lawyers for loss of time when devoting their efforts to their own cause, the same entitlement should extend to self-represented lay litigants who are able to demonstrate the same loss.

473. Costs may be awarded to those lay litigants who can demonstrate devoted time and effort to do work, which ordinarily would have been done by a lawyer retained for same litigation, further, it is consistent that lay litigants incurred an opportunity cost by foregoing their usual remunerative activity; awarding of additional Costs are a useful tool of the Court to encourage settlements and or to discourage or sanction inappropriate behavior, as the case may be.

474. Having considered the here within above provided arguments for cost, this Honorable Court may find it appropriate to Order the Plaintiffs to pay costs throughout, in addition to all reasonable disbursements. Jurisdiction 475. The New Brunswick Residential Tenancies Act Section 26 (1) clearly states who shall carry out the duties as are prescribed by Residential Tenancies Act, please see: Section 26 (1) of The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 is reproduced below: RENTALSMEN 26(1) The Lieutenant-Governor in Council may appoint one or more persons as rentalsmen who shall carry out such duties as are prescribed by this Act and the regulations. 476. The person known as the Rentalsmen, is the person who may carry out such duties, as are legislated by Residential Tenancies Act, and has jurisdiction

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over matters regarding the Residential Tenancies Act, the question arises, what role does a Judge of The Court of Queens Bench of New Brunswick, have in relation to Residential Tenancies Act.

477. In determining if this Honorable Court has Jurisdiction to hear matters regarding Residential Tenancies Act, may require the interpretation of two statues namely: Residential Tenancies Act, S.N.B. 1975, c. R-10.2 Judicature Act, R.S.N.B. 1973, c. J-2

478. Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2 claim that each Act is respectively notwithstanding any other Act, which would of course include each other.

479. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the following excerpt: Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones. 480. The definition of the Maxim Leges posteriores priores contrarias abrogant is provided at the Legal Dictionary website at the following URL at (http://legaldictionary.thefreedictionary.com/Leges+posteriores+priores+contrarias+abroga nt) Leges posteriores priores contrarias abrogant. Subsequent laws repeal those before enacted to the contrary. 2 Rol. R. 410; 11 Co.

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626, 630. A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856. 481. The definition of Leges posteriores priores contrarias abrogant is provided by Wikipedia, at the following URL: http://en.wikipedia.org/wiki/Implied_repeal Implied repeal The doctrine of implied repeal is a concept in English constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed (i.e. no longer law). This doctrine is expressed in the Latin phrase "leges posteriores priores contrarias abrogant".

482. Leges Posteriores Priores Contrarias Abrogant: This method of statutory construction in this case, applies to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2. The concept of this stature is the newer statute later abrogates a prior statute only where the two are manifestly inconsistent with and repugnant to each other. The rationale for this form of construction is that the newer statute more accurately depicts the current societal mood or more appropriately applies Jurisdiction to a given subject.

483. Though both Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2 claim that each Act is respectively Notwithstanding any other Act, which would of course apply to each of the here within mentioned Acts, based on the Maxim Leges posteriores priores contrarias abrogant, Residential Tenancies Act enacted in 1975, takes

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precedence therefore the conflicting parts of the earlier Judicature Act enacted in 1973, are in effect, now subordinate.

484. Based on the Maxim Leges posteriores priores contrarias abrogant, the Residential Tenancies Act, is in fact, notwithstanding the any other Act, agreement or waiver to the contrary which includes Judicature Act, R.S.N.B. 1973, c. J-2. 485. The following definition of notwithstanding is from Black's Law Dictionary (8th ed. 2004),at Page 3378 as follows: NOTWITHSTANDING - notwithstanding, prep. Despite; in spite of 486. The subject section of the Residential Tenancies Act, S.N.B. 1975, c. R10.2, which includes notwithstanding is reproduced below as follows: 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary;

487. The subject section of the Judicature Act, R.S.N.B. 1973, c. J-2 which includes notwithstanding is reproduced below as follows: 9(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely:

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488. To understand the use of the term and meaning of notwithstanding requires that we interpret the subject statutes. The interpretation of a statute is a question of law, and correctness is the standard of review applicable in this case. Statutory interpretation should be approached with the following analytical framework set out in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27, at pages 40 and 41: Although much has been written about the interpretation of legislation . . ., Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

489. In applying this principle it is instructive to look at the objectives set out in section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, which provides the Trial Division shall have and exercise general and original jurisdiction in all causes and matters, while at the same time, section 27(1), 27(2), 27(3), 27(5), 27(6), 27(7), 27(8), 27(9) and 27(10) of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2, clearly states the jurisdiction of a Judge of The Court of Queens Bench of New Brunswick in relation to matters governed by The Residential Tenancies Act. The Defendant submits that the legislation in question (The Residential Tenancies Act.) is not by any means ambiguous, and the intention is to make abundantly clear the relationship, role and jurisdiction of Judge of The Court of Queens Bench of New Brunswick.

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490. The following explanation of Statutory interpretation is provided at Wikipedia located at the following URL: http://en.wikipedia.org/wiki/Statutory_interpretation Conflicts between sources of law Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute. U.S. Supreme Court: "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254. Supreme Court of Virginia: "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).

Supreme Court of Alaska: "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996);

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491. An analysis of the principle in Re Rizzo & Rizzo Shoes Ltd., supra, can also be buttressed by the maxim expressio unius est exclusio alterius. The Residential Tenancies Act clearly defines the role of a judge of The Court of Queens Bench of New Brunswick, in relation to matters governed by the Residential Tenancies Act in section 27 of the Act. Section 27 regulates the jurisdiction of a Judge of The Court of Queens Bench of New Brunswick to act and in what capacity. If the legislation within the Residential Tenancies Act, intended that a Judge of The Court of Queens Bench of New Brunswick shall have unlimited jurisdiction already granted by Section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, then there would have been no need to include conditions on how a judge of The Court of Queens Bench of New Brunswick has jurisdiction to act and in what capacity, which has the effect of excluding while limiting the already granted jurisdiction of the Court as per the maxim expressio unius est exclusio alterius.

492. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 provide the following excerpt: Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. Also termed Inclusio unius est exclusio alterius or enumeratio unius est exclusio alteriu. 493. The definition of Expressio Unius Est Exclusio Alterius may be found at the following website (http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlteri us.aspx ) and is reproduced below for convenience: Expressio Unius Est Exclusio Alterius definition: Latin: the expression of one thing is the exclusion of the other.

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Sometimes referred to in short form as expressio unius. In Rodaro, Justice, at 856, defined the Latin maxim expressio unius est exclusio alterius as follows: "... a maxim of interpretation meaning that the expression of one thing is the exclusion of the other. When certain persons or things are specified in a law, contract or will, an intention to exclude all others from its operation may be inferred. In this case, the reference to the assignment to a financial institution excludes assignment to any other entity." In Dorval, Justice Cameron expressed it as: "... to express one thing is to exclude another." In Transpacific, Justice Lysyk described it as follows: "The principle ... expressio unius est exclusio alterius: the express mention of one or more things of a particular class may be regarded as impliedly excluding others." Although the doctrine is useful in determining the extents of contracts, it is also an important principle in the construction of statutes. In her book on the topic, jurist Ruth Sullivan wrote: "One of the so-called maxims of statutory interpretation is expressio unius est exclusio alterius: to express one thing is to exclude another. "The maxim reflects a form of reasoning that is widespread and important in interpretation .... the a contrario argument ... negative implication ..implied exclusion ...

"An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislatures failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied."

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494. The Defendant believes that the above mentioned principles of statutory interpretation are persuasive, especially when considering, that when certain things are specified in a law, an intention to exclude all others from its operation may be inferred. Because of this expectation, the legislatures failure to mention the jurisdiction of the Court other than, in a limited appeal from a decision of the Rentalsmen capacity, becomes grounds for inferring that it was deliberately exclusionary.

495. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 specifically designates authority or jurisdiction to a Judge of The Court of Queens Bench of New Brunswick under subsection 27(1) specifically as the Court's power to decide a case or issue a decree only and not until after a decision has been made by a Rentalsmen.

496. The Defendant asserts regarding the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 that the necessary condition on which the jurisdiction of the Court of Queens Bench can be engaged is under subsection 27(1); further, this may only occur after the prerequisite decision or Order of the Rentalsmen is or has been issued respectively; moreover, the Court of Queens Bench Trial division has no unilateral Jurisdiction to hear matters within the scope of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 which includes any matters of a Notice to Vacate a Residential Property or Termination of a Residential Tenancy.

497. The Defendant submits, that because of lack of Jurisdiction {pursuant to the Maxim Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, a.k.a. "Last in Time") and the

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Maxim Expressio Unius Est Exclusio Alterius (The express mention of one thing excludes all others) }, this Honorable Court should not (in this matter) render a decision which would vacate the Defendant from the 29 Marshall Street and 31 Marshall Street, Residential Duplex in the City of Fredericton, as that decision is within the jurisdiction of the Rentalsmen only, consequence of the Defendants Tenancy since year 2005 in pursuance with the New Brunswick Residential Tenancies Act.

498. Considering the above, the factual findings made by the Learned Trial Judge should not be accepted, because the Intended 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 of unjustified serious prejudice or injustice to the Intended Appellant.

499. The misapprehension of the evidence in this case goes to the substance of the matter, it is material rather than peripheral to the reasoning of the trial judge, and the errors thus identified play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a Decision. If an Appellant can demonstrate, such as in this case that the Decision depends on a misapprehension of the evidence then, it must follow that the Appellant has not received a fair trial, and was the victim of a miscarriage of justice. The Leaned Trail Judge did demonstrates Omissions in reasons 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

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500. The Learned Trial Judge did display a reasonable apprehension of Bias by only considering and addressing those arguments raise by the Intended Respondents and dismissed and or avoided addressing the arguments and evidence as presented by the Intended Appellant. 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 Intended 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

Decision Order 5 Termination of Tenancy 501. The Learned Trial Judge did make an error in law by Misapprehending the Argument and evidence provided.

502. The Learned Trial Judge failed to understand the facts and arguments as presented by the Intended Appellant and instead pursued only the arguments and assertions as presented by the Intended Respondent, this predisposition of the Learned Trial Judge toward a particular result, is such that a reasonable apprehension of bias is raised.

503. The Intended 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.

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504. 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 Intended Appellant.

505. The Learned Trial Judge did recognize the validity and legal effect of the Intended Appellants Two presented Residential Tenancy Leases: one a 4 year Term Lease, Dated April 01, 2005; the second a Year to Year Lease Dated September 1, 2005;

which are in accordance with and pursuant to the Residential Tenancy Act of New Brunswick.

506. The Learned Trial Judge did error in law by misapprehending the applicable sections of the Residential Tenancy Act of New Brunswick and did not appropriately conclude that the subject Leases run concurrently so that as of April 01, 2010 the Intended Appellant was at that time a Long Term Tenant (Tenancy of more than 5 years), further required specific procedure to terminate the Intended Appellants Lease.

507. The Learned Trial Judge did error in law by misapprehending the Residential Tenancy Act of New Brunswick and not appropriately concluding that the Court of Queens Bench Trial Division does not have the Jurisdiction to terminate or declare a Tenants Lease Terminated, without the matter having first been brought to the attention of the Rentalsmen.

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Paragraph 193 and 194 508. The Plaintiffs argument (Paragraphs 48 to 76 of the Plaintiffs Brief Dated November 26, 2010) as presented, which the Court does agree with are erroneous, and contains many factual errors and erroneous interpretations of the applicable law, namely Residential Tenancy Act of New Brunswick.

509. The Alleged Termination of Tenancy and Lease is defective, and not in accordance with the Residential Tenancy Act,

510. The alleged evasion of service claims are again based on claims of the same process server, once again Dave Daneliuk. It seems that when the Intended Respondents would like to have and excuse claiming evasion of service Dave Daneliuk is their man.

Paragraph 195 511. The Plaintiffs argument (Paragraphs 130 to 141 of the Plaintiffs Brief Dated November 26, 2010) as presented, which the Court does agree with are erroneous, and contains many factual errors and erroneous interpretations of the applicable law, namely Residential Tenancy Act of New Brunswick.

Paragraph 196 512. The Intended Appellant was not in fact served with a valid Notice of Termination of Tenancy, further said Notice of Termination of Tenancy did not meet the requirements of the Residential Tenancy Act of New Brunswick, to be proper or have legal effect upon the Intended Appellant.

Paragraph 197, 198 and 199

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513. The Intended Appellant was in fact a Long Term Tenant, contrary to the Learn Trial Judges assertions, further, the Intended Appellant was and is entitled to the benefits found at section 24.7(1) of the Residential Tenancy Act of New Brunswick.

514. The Learned Trial judge did error in law by misapprehending the fact that, regarding the Residential Tenancy Act of New Brunswick, time is calculated from the beginning of the first lease concurrently through to the current lease. Therefore, time from April 01, 2005 to March 31, 2010 was calculated to be five consecutive years, meaning in other words that the Intended Appellant was in fact a five year long term Residential Tenant, the result of which was that special conditions did arise which created a Limitation on landlords right to terminate.

515. The subject Notice of Termination of Tenancy and Lease created and served by the Intended Respondents did not meet the requirements pursuant to the New Brunswick Residential Tenancy Act, section 24.7(1) to in fact terminate the Intended Appellants Lease.

516. The Intended Appellant is currently still a Residential Tenant in good standing with a Lease to 29 and 31 Marshall Street, Fredericton, New Brunswick. The Intended Appellant has a recently as November 1, 2011 paid rent to the Landlords RBC Bank account, for the Month of November. The Intended Appellant has paid rent to Landlord betty Rose Danielskis account for more than six years now, further, the rental payments have never been refused.

Cost

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Paragraph 203, 204 and 205 517. Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The law never works an injury, or does a wrong. The Intended Appellant claims that the exercise of discretion of the Learned Trial Judge in regards to Cost award to the Plaintiffs is manifestly without merit, therefore excessively disproportionate, therefore, unbalanced substantial injustice and serious injustice would result if the Cost award is allowed to stand.

518. 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 Plaintiffs, moreover the unjust awarding of undeserving cost, in the amount awarded in favor of the Intended Respondent in these circumstances; further, Intended Appellant contends, it would be a disservice to the administration of justice to allow this Award of Costs to stand. Statement of Facts 519. Intended Appellant / Defendant Andr Murray as a Residential Leasehold Tenant of the Marshall Street Duplex in the City of Fredericton and has caused to be signed, pursuant to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2 (here after: Residential Tenancy Act) several leases beginning approximately February 2005, until a final perfected Lease September 1, 2005, that being a Year to Year Lease: FORM 6 STANDARD FORM OF LEASE, comprising civic addresses: 29 Marshall Street, and 31 Marshall Street, of the City Fredericton, N.B. Canada.

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520. Betty Rose Danielski to date, remains the Registered Title Holder, of the subject Duplex Property at civic addresses 29 Marshall Street and 31 Marshall Street, in the City of Fredericton, New Brunswick as such and according to the Residential Tenancies Act., Landlord Betty Rose Danielski remains the Landlord.

521. CONTINUING POWER OF ATTORNEY FOR PROPERTY was created November 14, 2002, assigned to Richard Boileau by Title Holder Betty Rose Danielski. This agency power is evidenced by a CONTINUING POWER OF ATTORNEY FOR PROPERTY document, signed and dated November 14, 2002 by Betty Rose Danielski including signed witnesses.

522. Acting as agent for Betty Rose Danielski, CONTINUING POWER OF ATTORNEY FOR PROPERTY Richard Boileau, had negotiated and signed a Residential Lease Term Lease: FORM 6 STANDARD FORM OF LEASE Dated April 1, 2005 also a further Residential Lease Year to Year Lease: FORM 6 STANDARD FORM OF LEASE Dated September 1, 2005 regarding Tenancy at the subject Residential Duplex 29 Marshall Street and 31 Marshall Street, Fredericton New Brunswick with current Tenant Andre Murray (defendant in this matter).

523. Agents for Plaintiff The Royal Bank of Canada and the 501376 N.B. Ltd., a body corporate, are attempting to act as Landlord therefore, assuming the authority to evict Defendant Tenant Andre Murray from 31 Marshall Street, Fredericton New Brunswick. PART III - ISSUES Questions for the Court to answer:

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Does the subject Notice of Termination of Tenancy and Lease dated May 20, 2010, which was served on the Defendant, by the Plaintiffs have the legal effect of terminating the Residential Tenancy of the Defendant Tenant Andr Murray?

1. MAXIMS 524. Because Maxims are principles and authorities, universally admitted, as being just further, that it be consonant to reason and part of the general customs or common law of the land; and are of the same strength as acts of parliament, please note the Defendant will use the relevant Maxims throughout following arguments as they may apply in that particular case. 2. Situation Analysis

The welfare of the people is the supreme law.

Broom's Legal Maxims (max. 1-10), also Bacon's Maxims (reg. 12) Also Maxim - In pari causa potior est condition possidentis Everyone may keep what he has got, unless and until someone else can prove a better title.

525. Defendant Andre Murray believes that the maxim The welfare of the people is the supreme law is clearly addressed and is the expressed intention of The Residential Tenancies Act of New Brunswick. What could be

more important to a man than security, consistency and stability of a home, whether rented or owned, there is no difference, except The Residential

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Tenancies Act of New Brunswick is a specific act which by Law can and does afford a level of protection and security of tenure notwithstanding all other Acts Statutes and or Laws further, not afforded to the Home owner. 3. Law of Agency Qui facit per alium facit per se - He who acts through another is deemed to act in person, i.e., a principal is liable for the acts of his agent. 4. Power of Attorney 526. A power of Attorney for property was created November 14, 2002, to Richard Boileau by Title Holder Betty Rose Danielski. This agency power is evidenced by a CONTINUING POWER OF ATTORNEY FOR PROPERTY document, dated November 14, 2002

527. Acting as agent for Landlord Betty Rose Danielski, Power of Attorney Richard Boileau, signed a Residential Tenancies lease with Defendant Andre Murray, dated September 1, 2005 ( please see Record on Motion page 310) regarding Tenancy at 29 Marshall Street and 31 Marshall Street, Fredericton New Brunswick. 5. Lease 528. After reviewing agency law, Qui facit per alium facite per se, which affirms the principal's liability for the acts of his agent, among the other Maxims on the subject, which include the subject of Power of Attorney, we find that the granting of a lease agreement to Defendant and Tenant Andre Murray

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was a Capacity which was available for Title Holder and Landlord Betty Rose Danielski to grant through Power of Attorney (one individual appoints another to act for him or her) Richard Boileau, despite any contractual agreement to do otherwise.

529. It stands to reason that Standard Form of Lease document 2009 (see RECORD ON MOTION BOOK 1 OF 2 TAB - 4) signed by a authorized power of attorney acting for Title Holder Landlord Betty Rose Danielski, is a legally binding document and falls within the scope of and is in accordance with the Residential Tenancies Act of New Brunswick. 6. July 16, 2009 Letter 530. Claimed July 16, 2009 Notice signifies the beginning of posturing and misrepresentation of facts embodied in semantic word games beginning with the Alleged delivery to 29 Marshall Street in the City of Fredericton: 531. The Letter correspondence, Dated July 16, 2009, allegedly Process Served allegedly attached to the door 29 Marshall Street could not be intended as NOTICE OF TERMINATION by the writers in stead was erroneously referred to as NOTICE TO VACATE: What follows are reasons why Letter correspondence, Dated July 16, 2009 is not legal NOTICE: The Solicitor for the Plaintiffs did not does not have the legal capacity to terminate the Defendants Residential Tenancy Lease.

The Notice to Vacate does not comply with section 24(1)(a) of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2.

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The Notice to Vacate does not comply with section 24(1.1) of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2.

532. The erroneous contention, to date by the Plaintiffs of NOTICE TO VACATE, is not valid further confirmed, by the Defendant contacting the Office of the Rentalsmen in Fredericton and describing the subject circumstances. The Fredericton Rentalsmen assured the Defendant that the subject letter correspondence July 16, 2009, is not legal or lawful NOTICE TO VACATE nor could it be a termination of NOTICE OF TERMINATION OF TENANCY moreover, has no legal effect regarding the Defendants Residential Tenancy, pursuant to the Residential Tenancies Act of New Brunswick. 7. Tenancy Lease History and Prepayment Schedule 533. May it please this Honourable Court, Betty Rose Danielski as Landlord has received payment in full, from the Defendant, for all applicable payments of rent due for both civic addresses 29 and 31 Marshall Street since March 01, 2005. 8. Termination of Tenancy Notice of Termination of Tenancy 534. On or about June 3, 2010 Residential Leasehold Tenant Andre Murray did receive a CANADA POST DELIVERY NOTICE for mail pick up requiring Andre Murray to attend local post office to pick up an item.

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535. Subject CANADA POST DELIVERY NOTICE containing a Notice of Termination of Tenancy and Lease, Dated May 20, 2010 which speaks to the matter of three separate parties having ambiguous interest in subject property while at the same time offering a Notice of Termination of Tenancy and Lease, and Lease while at the same time not one of the parties identify themselves as the Landlord

536. Subject CANADA POST DELIVERY NOTICE containing a Notice of Termination of Tenancy and Lease, as earlier mentioned was bearing one single date for all signatories: Dated May 20, 2010, regardless of the fact each of the signatories reside in a different Provincial States.

537. May this please the Honorable Court the Defendant has been a Tenant of 29 31 Marshall Street in the City of Fredericton established by consecutive signed Residential leases beginning as early as March and April of 2005 please see the below provided relevant section: Residential Tenancies Act, S.N.B. 1975, c. R-10.2, 24.2 Sections 24.3 to 24.7 apply to all tenancies of premises, other than mobile home sites, that have been occupied by the same tenant for five consecutive years or more. 1997, c.13, s.4. 538. Nevertheless, and in spite of the fact that Defendant Andre Murray is a Long Term Tenant, according to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1)(a), the above subject June 3, 2010 Service of Notice of Termination of Tenancy and Lease, Dated May 20, 2010 is outside the time

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limits prescribed by the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1)(a), even if the Honourable Court were to consider Defendant Andre Murray a Year to Year Tenant at the 29 Marshall Street and 31 Marshall Street of the City of Fredericton; consequently, the subject Notice of Termination of Tenancy and Lease, served June 3, 2010 has no legal effect on the Rights of Tenant Andre Murrays September 1, 2009 August 31, 2010 Lease, protected by the Residential Tenancies Act, of New Brunswick because it was not served by a landlord at least three months before the expiration of any such year to be effective on the last day of that year.

539. Please note Defendant Andre Murray is a Long Term Tenant according to the Residential Tenancies Act requiring different Termination of Tenancy then a Year to Year Tenant addressed further on in Section 15 Long Term Tenancy of this Defendants submission.

540. A relative section of the Residential Tenancies Act, S.N.B. 1975, c. R10.2, section 24(1)(a), is reproduced below and applicable to Tenant Andre Murrays September 1, 2009 August 31, 2010 Lease period: 24(1)A notice of termination of a tenancy is to be served by a landlord or tenant is to be served (a)if the premises are let from year to year, by the landlord or the tenant at least three months before the expiration of any such year to be effective on the last day of that year;

541. The Defendant verily believes to be true, that, Betty Rose Danielski in her capacity as Landlord, or an agent for Landlord Betty Rose Danielski, did not send a notice of termination, served by or in the capacity of Landlord according to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 section 24(1.1).

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542. The Defendant comprehends that the legal effectiveness, validity, or enforceability of a notice of termination dated and signed by anyone other than the landlord or an agent or representative of the landlord declaring their capacity (The role in which one performs an act) as such, in accordance with section 24(1.1)(f) Residential Tenancies Act, S.N.B. 1975, c. R-10.2 is null and void and consequently has no legal effectiveness, validity, or enforceability. 9. Person 543. Defendant believes that the Landlord is a legally constructed Person, the legal subject or substance of which the rights and duties of the Landlord as defined by the Residential Tenancies Act, S.N.B. 1975, c. R-10.2 are attributes.

544. The Defendant believes that Tenant is a legally constructed Person, the legal subject or substance of which, the rights and duties of the Tenant as defined by the Residential Tenancies Act, S.N.B. 1975, c. R-10.2 are attributes.

545. Defendant asserts that the notice of termination must be dated and signed by a Person the Landlord, (the legally constructed Person,) that legal subject or substance of which the rights and duties of the Landlord are attributes, or an agent or representative of the landlord Person, which has the capacity to terminate (on behalf of the landlord Person) the Tenancy Contract with the Tenant Person, (the legally constructed person,) that legal subject or substance of which, the rights and duties of the Tenant are attributes. 10. Person argument

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546. The Intended Appellant did provide the Learned Trial judge with a complete at length argument regarding what a Person is, legally speaking and how same applies to the Residential Tenancy Act of New Brunswick. 11. Man vs. person 547. The Defendant verily believes to be true that the legal effectiveness, validity, or enforceability of a notice of termination dated and signed by anyone other than person known as Landlord or an agent or representative of the Landlord declaring their capacity (The role in which one performs an act) as such, in accordance with section 24(1.1)(f) Residential Tenancies Act, S.N.B. 1975, c. R-10.2 is null and void and consequently has no legal effectiveness, validity, or enforceability.

12. Singed and dated by Landlord 548. The Defendant asserts that a NOTICE OF TERMINATION must be dated and signed by the person known as the Landlord, or an agent or representative of the landlord person, which has the capacity to terminate (on behalf of the landlord person) the Tenancy Contract with the Tenant person.

549. The Authors of the May 20, 2009 Notice, clearly did not include the word Landlord, evidently because the authors did not want to assume the duties associated with the rights of a Landlord to Terminate a Residential Tenancy in New Brunswick. It is reasonable that one cannot have rights without the duties

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attached with that capacity. You cannot have your cake and eat it too, is the saying. 13. Acknowledgement of the Authenticity 550. The Plaintiffs frivolous, vexatious nature are further revealed, by the Plaintiffs (excerpt provided below within) not wanting to acknowledge, the authenticity, validity or legal effect of any lease claimed by the Tenant / Defendant Andre Murray, in the Notice of Termination of Tenancy and Lease as found Dated: May 20, 2010, Paragraph 2, second sentence: The delivery of this notice is not an acknowledgment of the authenticity, validity or legal effect of any lease claimed by the Tenant. 551. The Defendant verily believe to be true that the above quoted statement renders the effect of the Notice of Termination of Tenancy and Lease, as found Dated May 20, 2010, frivolous, null and void, because without acknowledging the Authenticity, validity or legal effect of the Lease Claimed by the Residential Leasehold Tenant Andre Murray, the Notice of Termination of Tenancy and Lease as found Dated May 20, 2010, has no legal purpose and consequently, has no legal effectiveness, validity, or enforceability.

552. Without the basic acknowledgement of the Authenticity, validity or legal effect of Tenancy by Andre Murray the related subject found within the Dated May 20, 2010, above within subject correspondence containing the alleged Notice of Termination of Tenancy and Lease, is consequentially without affect, makes absolutely no sense and in effect is non-sense.

14.

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Dated Termination of Tenancy and Lease 553. Further to that point the Defendant verily believe to be true that the Subject Notice of Termination of Tenancy and Lease, Dated May 20, 2010, is not dated by the same pen as the signature of any of the signatories, therefore the balance of probability suggests that the document is not dated by the pen of any of the signatories posturing as the Landlord person consequently all signatories signing the subject document, cannot be considered Landlord as Landlord must date the document as is a requirement set out as found provided below in excepts of the relative section of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2 section 24(1.1) 24(1.1) A notice of termination served by a landlord or tenant under this Act (f) shall be dated and signed by the landlord 554. Note: the three signatories of the subject document were signing for persons that are known to be located in three separate provinces: Toronto, Ontario (Betty Rose Danielski); Montral, Quebec, (Royal Bank of Canada Head Office); Fredericton, New Brunswick, (501376 N.B. Ltd., a body corporate, Office)

again the balance of probabilities brings to question the unlikely pretence that the signing parties could or would have been present in the same room at the signing of such a document.

555. Since the alluded Notice of Termination of Tenancy and Lease Dated May 20, 2010, was not signed and dated according to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1.1), which clearly stated A notice of termination served by a landlord under this Act, shall be dated and signed by

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the landlord or an agent or representative of the landlord, this Notice of Termination of Tenancy and Lease dated May 20, 2010, is null and void and therefore has no force of law inter alia.

15. summation 556. In summation Defendant verily believes to be true, that, the Notice of Termination of Tenancy and Lease dated May 20, 2010:
a) is not Dated by each signatory;

b) the capacity of any of the signatories is not indicated;

c) the printed names of two of the signatories to the document are not

provided and the signatures are illegible;

d) is null and void because, none of the signing parties claim to be the

person known as Landlord;

e) Is not valid, for a Year to Year' Tenancy, a NOTICE OF

TERMINATION OF TENANCY AND LEASE as Dated May 20, 2010, was not served by Landlord at least three months before the expiration of any such year to be effective on the last day of that year. According to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1)(a), this June 3, 2010 at 4:35 P.M. Service date is outside the time limits prescribed by the Residential Tenancies Act, S.N.B. 1975, c. R10.2, section 24(1)(a), regarding the 29 Marshall Street and 31 Marshall

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Street premises which are let from year to year and therefore the Notice of Termination of Tenancy and Lease, Dated May 20, 2010 has no legal effect on the Rights of Tenant Andre Murray who is sheltered in Law by The Residential Tenancies Act, of New Brunswick;

f) Without the basic acknowledgement of the Authenticity, validity or

legal effect of the subject Lease, there is no Lease to terminate, consequentially the Notice of Termination of Tenancy and Lease, makes no sense and in effect is non-sense;

g) Has no force of law because Landlord, in capacity as Landlord, or an

agent for Landlord did not identify themselves as according to The Residential Tenancies Act, S.N.B. 1975, c. R-10.2 section 24(1.1);

h) The Defendant asserts that a Notice of Termination must be dated and

signed by the the Landlord person, (the legally constructed person,) that legal subject or substance of which the rights and duties of the Landlord are attributes, or an agent or representative of the landlord person, which has the capacity to terminate (on behalf of the landlord person) the Tenancy Contract with the Tenant person, (the legally constructed person,) that legal subject or substance of which, the rights and duties of the Tenant are attributes; 557. The Defendant verily believes to be true, that the Landlord Betty Rose Danielski desires to deny acknowledgment of her Landlord capacity and legal obligations of being Landlord; as such is the case Landlord capacity has not currently been confirmed and any a Termination of Tenancy of Defendant

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Tenant Andre Murray according to the terms of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2. can only be properly terminated according to law, namely the Residential Tenancies Act, S.N.B. 1975, c. R-10.2. 24(1)(a), 24(1.1) and as such the tenancy of Andre Murray continues.

16. Long Term Tenancy 558. Following April 1, 2010 (August 31, 2010, according to the current Dated September 1, 2005 Year to Year Lease period) according to the April 1, 2005 Lease, the Defendant became a Long-term Tenant according to Residential Tenancies Act, S.N.B. 1975, c. R-10.2, and effectively the termination of tenancy conditions changed substantially.

559. The Residential Tenancies Act, S.N.B. 1975, c. R-10.2, provides that a tenancy agreement is capable of taking effect at law or in equity from the date fixed for commencement of the tenancy without the requirement of any entry onto the premises and according to the Defendants earliest provided lease of April 01, 2005 allowing for pre entry renovation et cetera, furthermore, since all Tenancy is measured in time and runs concurrently with any new, and or previously signed lease, in regards to the same 29 and 31 Marshall Street premises, that date of the commencement of the Defendants tenancy was April 01, 2005.

560. Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 10(2) is provided below: 10(2) A tenancy agreement is capable of taking effect at law or in equity from the date fixed for commencement of the tenancy without the requirement of any entry onto the premises.

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561. After March 2010, according to the concurrent Lease period, the Defendant became a Long-term Tenant according to Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24.2, because the 29 31 Marshall Street Duplex premises have been occupied by the same tenant (the Defendant) for five consecutive years or more and effectively the termination of tenancy conditions changed substantially after April 2010, pursuant to the April 01, 2005 Lease as presented to the Honorable Court, which will now be addressed.

562. The Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24.2 is provided below LONG TERM TENANCIES Application of sections 24.3 to 24.7 24.2 Sections 24.3 to 24.7 apply to all tenancies of premises, other than mobile home sites, that have been occupied by the same tenant for five consecutive years or more. 563. Since the Defendants Tenancy is regarded by the Residential Tenancies Act, as in the category defined as a Long Term Tenancy, Termination of Tenancy rules are substantially different from a Year to Year Tenancy.

564. The most relevant section (at this point), of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, is section 24(1.1), regarding long term tenancies, is (e), which is that a notice of termination served by a landlord under this Act shall state the reason for the termination, if otherwise required by this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2) to do so. Following March 2010, a notice of termination served upon Tenant Andr Murray by a landlord under this Residential Tenancies Act, S.N.B. 1975, c. R-10.2 shall (must) state the reason for the termination as required by this Act to do so.

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565. The subject Notice of Termination of Tenancy and Lease Dated May 20, 2010, is conspicuously absent the reason for the termination as required by this Residential Tenancies Act, S.N.B. 1975, c. R-10.2., section 24(1.1).

566. It is made clear by section 24.7(1) of The New Brunswick Residential Tenancies Act, that where a tenant (the Defendant) has occupied premises for five consecutive years or more, the landlord shall not serve a notice of termination of the tenancy unless the Landlord provides of the following reasons for doing so: (a) the landlord intends in good faith that the premises will be occupied by the landlord, the landlords spouse, a child of the landlord, a parent of the landlord or a parent of the landlords spouse, (b) the premises occupied by the tenant will be used other than as residential premises, (c) the premises will be renovated to such an extent that vacant possession is necessary to perform the renovation, or (d) the tenancy arises out of an employment relationship between the tenant and the landlord in which the employment relates to the maintenance or management of the premises, or both, and the employment relationship is terminated. 567. Please note that none of the above indicated reasons of The New Brunswick Residential Tenancies Act 24.7(1) (a), (b), (c) or (d) were provided on the impugned NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 2010, furthermore, section 24.7(2) the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, was, as well, not complied with by the Plaintiffs, which states A landlord who serves a notice of termination of a tenancy under

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subsection (1) shall state the reason for the termination in the notice of termination. Therefore, the subject impugned NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 2010, served by the Plaintiffs, does not apply to the Defendants lease status and the Defendants Lease may continue uninterrupted. 568. The Defendant did assert, that the Larned Trial Judge, should not Validate (as requested by the Plaintiffs) the impugned NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 2010, as served by the Plaintiffs because the subject NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 201 does not comply with the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1.1), section 24.7(1) (a), (b), (c) or (d), section 24.7(2) and the notice is in fact void according to the New Brunswick, Residential Tenancies Act. 17. Property Act verses the Residential Tenancies Act 569. The distinguishing section of the Residential Tenancies Act is Section 2 as reproduced below: Residential Tenancies Act, S.N.B. 1975, c. R-10.2 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and

570. Black's Law Dictionary (8th ed. 2004), at Page 3378, defines: NOTWITHSTANDING As follows:

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NOTWITHSTANDING notwithstanding, prep. Despite; in spite of 571. Section 2 of the Residential Tenancies Act, when read in the context of Defendants submission provided definitions reads as follows (underlined words are defined in the subsequent brackets): 2 Except where otherwise specifically provided for in this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2 ), this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2 ) applies to tenancies (a person is granted the right to possess premises in consideration of payment of rent) of residential premises (any house, dwelling, mobile home, apartment, flat, tenement or similar place that is occupied or may be occupied by an individual as a residence) and tenancy agreements (means an agreement whereby a person is granted the right to possess premises in consideration of payment of rent) respecting such premises (any house, dwelling, mobile home, apartment, flat, tenement or similar place that is occupied or may be occupied by an individual as a residence), (a) notwithstanding (Despite; in spite of) the Landlord and Tenant Act or any other Act (including the Property Act, R.S.N.B. 1973, c. P-19), agreement (Mortgage Agreement / Promissory Note) or waiver to the contrary (Contract), arising or entered into before or after this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2) comes into force. 572. Furthermore, the Property Act, R.S.N.B. 1973, c. P-19, section 47(1) clearly provides that a Mortgagee exercising the power of sale, transfers that property subject to all estates, interests and rights that have priority to the Mortgage, priority rights such as those entrenched within the Residential Tenancies Act and assigned to the Tenant. 573. The relative section 47(1), of the Property Act, R.S.N.B. 1973, c. P-19 is provided below.

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Property Act, R.S.N.B. 1973, c. P-19 47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estate, interests and rights to which the mortgage has priority, but subject to all estates, interests and rights that have priority to the mortgage.

574. When the Property Act, R.S.N.B. 1973, c. P-19, section 47(1) is read with the Defendants submission referenced definition included for interpretation, the following is the result(underlined words are defined in the subsequent brackets). A mortgagee exercising the power of sale conferred by section 44 (section 44 of the Property Act) may convey the property (Mortgage) sold (at auction), for such estate and interest therein as is the subject (having relevance to the current discussion) of the mortgage (prior written agreement) freed (to relieve or rid of what restrains, confines, restricts) from all estates, interests and rights to which the mortgage has priority (The status of being higher in degree or rank, pursuant to the Property Act ), but subject (exposed, or liable/ to bring under control or dominion) to all estates, interests and rights (subject of a right - The owner of a right; the person in whom a legal right is vested, in this case a Tenant, one who holds or possesses lands or tenements by any kind of right or title.) that have priority (The status of being higher in degree or rank, specifically a Tenants rights, pursuant to the Residential Tenancies Act, notwithstanding/ despite any other Act), to the mortgage. 575. Further on this point of interpretation, Defendant notes that The Property Act section 47(1) makes a clear distinction between the conditions of freed from and comparatively its opposite or antonym subject to. 576. When the Property Act section 47(1) is read with the Defendants submission referenced antonyms, the following is understood(underlined words are defined in the subsequent brackets):

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47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed (released) from all estate, interests and rights to which the mortgage has priority, but subject (confined) to all estates, interests and rights that have priority to the mortgage. 577. When the Property Act section 47(1) is read with the Defendants submission referenced antonyms, the following is understood(underlined words are defined in the subsequent brackets): 47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from (unaffected by) all estate, interests and rights to which the mortgage has priority, but subject to (affected by) all estates, interests and rights that have priority to the mortgage. 578. As demonstrated and comprehended by the Defendant, the Property Act, R.S.N.B. 1973, c. P-19, section 47(1), when interpreted with the above provided referenced definitions, clearly provides that a Mortgagee exercising Power of Sale, (a provision within the New Brunswick Property Act.), therefore, transfers such property subject to or confined to all estates, interests and rights and or is subject to such rights as are notwithstanding the New Brunswick Property Act., such as those within the Residential Tenancies Act; the Defendant claims shelter of the law found within the Residential Tenancies Act, Laws affording rights which are notwithstanding the New Brunswick Property Act., therefore, causing all relative encumbrances/obligations attributed to the Tenant must travel uninterrupted, remain intact and transferable to a Tenant, from the seller to the purchaser of the Property. 579. For further clarification, let us review The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 which states:

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17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 580. When examining the New Brunswick Residential Tenancies Act we can easily understand the scheme of the Act, the object of the Act, and the intention of Parliament can be comprehended to enshrine the Law with capacity and mandate for protection of the deeply cherished community value of the sanctity of the home. This well known, well recognized, established principle of Right of the sanctity of the home, devised for the protection of individual security, applies to all homes of a man or woman and is the factor that makes Residential Tenancies so unique, in reflecting these very principals.

581. The Defendant will refer to and rely on the well established principle of statutory interpretation, that: the legislature does not intend to produce absurd consequences. an interpretation may be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment a label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.

582. The Defendant argues that a label of absurdity must be attached to interpretations of the Residential Tenancies Act, that, which may defeat the purpose of a statute or render some aspect of it pointless or futile. The New Brunswick Residential Tenancies Act., includes the defining terms of application of the Act to be, NOTWITHSTANDING which includes Landlord

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and Tenant Act and or any other Act, agreement or waiver to the contrary, therefore, the situation is made abundantly clear and behoves the reader of the New Brunswick Residential Tenancies Act. to avoid the absurdity of an interpretation of the Residential Tenancies Act, to somehow, not be applicable to Mortgaged premises sold at Auction pursuant to the Property Act. 583. Except where otherwise specifically provided for in this Act Residential Tenancies Act, this Act Residential Tenancies Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding (in spite of, even if, without regard to or impediment by other things as stated) the Landlord and Tenant Act or any other Act (the Property Act), agreement or waiver to the contrary.

18. Fraud Maxim The laws serve the vigilant, not those who sleep upon their rights. 2 Bouv. Inst. n. 2327 19. Fraud, Conspiracy and Impersonation 584. The Defendant did assert that facts as presented, and the preponderance of probability lead to the conclusion that, the Plaintiffs carefully and purposefully crafted a Notice of Termination of Tenancy, signed, dated and served the subject Notice of Termination of Tenancy and Lease dated May 20, 2010 on the Defendant. The Plaintiffs purposefully did not have the Landlord Person sign, date and serve the subject Notice on the Defendant, the Landlord Person being, the only person authorized by the Residential Tenancies Act, S.N.B. 1975, c. R-

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10.2, with that specific right. The Plaintiffs asserted that the Defendant must vacate the Marshall Street duplex property according to the subject Notice of Termination of Tenancy and Lease dated May 20, 2010, which was in fact, null and void ab initio. Had the Defendant acted in accordance with the assertions of the Plaintiffs: (1) the Defendant would have lost possession of the Marshall Street duplex property illegally, (2) the Defendant would have had the rights of a Tenant pursuant to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, associated with the Marshall Street duplex property, illegally terminated, and (3) the consequential loss of the Defendants $80,000 Mechanics Lien on the Marshall Street Property, because of the Plaintiffs intent to complete the Mortgage Sale and Power of Sale Procedure, pursuant to the New Brunswick Property Act. 25. Costs 585. The Defendant did request that in the circumstances of this case, and particularly this Motion, if the Court does rule that fraud was an element, on the part of the Plaintiffs, or the Plaintiffs acted dishonestly, on a false representation, knowing misrepresentation of the truth, conspiracy and impersonation, to the benefit of the Plaintiffs and the also to the Detriment of the Defendant, which if this Court finds that the facts support all these allegations, or even some of these allegations, then the conduct of the Plaintiffs could be considered conduct that falls within the category of rare and exceptional cases to mark the court's disapproval of the conduct of the party in the litigation or . . . reprehensible in nature and . . . deserving of reproof or rebuke and cost sanctions should to be awarded to the Defendant.

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586. Alternatively, the Defendant did request that in the circumstances of this case, if the Court does not rule that fraud was an element, on the part of the Plaintiffs, or the Plaintiffs acted dishonestly, on a false representation, knowing misrepresentation of the truth, conspiracy and impersonation, to the benefit of the Plaintiffs and the also to the Detriment of the Defendant, which, if this Court finds that the facts support all these allegations, or even some of these allegations then the conduct of the Plaintiffs could be considered conduct, that does not fall within the category of rare and exceptional cases to mark the court's disapproval of the conduct of the party in the litigation or . . . reprehensible in nature and . . . deserving of reproof or rebuke and cost sanctions should not to be awarded to the Plaintiffs. 26. Cost if Fraud is found by the Court. 587. The question: did Betty Rose Danielski, Plaintiff Royal Bank of Canada, and Plaintiff 501376 N.B. Ltd., a body corporate and engage in conduct that was: Reprehensible; Scandalous; Outrageous;

588. The Courts have recognized that higher costs awards may be used where there were proven or substantially proven allegations of fraud or serious wrongdoing especially when improper conduct has been demonstrated on behalf of the Plaintiffs, and / or when the Plaintiffs conduct becomes sufficiently demonstrated to be reprehensible, the Court may find it appropriate to provide the Defendant with an award of special costs.

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27. Cost if no Fraud is found by this Court. 589. A task for the court is to punish and deter unwarranted allegations and egregious conduct, but without discouraging the tenacious pursuit and advancement of serious claims of impropriety in a proper case.

590. The allegations made by the Defendant, in this matter were not intended to harm and or embarrass. Behaviour and facts as they appeared to the Defendant are merely defined by the authorities referenced, when the Defendant researched the matter, fraud appeared to be an element, on the part of the Plaintiffs, and or that Plaintiffs acted dishonestly, on false representation, knowingly misrepresenting the truth, conspiracy and impersonation, to the clear benefit of the Plaintiffs also to the obvious Detriment of the Defendant, which, if this Court finds the facts support all these allegations, or even some of these allegations, then the conduct of the Plaintiffs could be considered conduct that falls within the definitions reprehensible deserving of reproof or rebuke.

591. As referenced to, within above listed authorities, the Courts have held that an award of solicitor and client costs could be used as a "deterrent to persons who may be disposed to make wanton, scandalous and vicious charges against persons with whom they are in conflict." Defendant Andre Murray is not a person who is disposed to make wanton, scandalous and vicious charges against anyone at anytime.

592. For an award of special costs, to be awarded against the Defendant in this matter, it would be necessary for the Plaintiffs to show that the Defendant acted improperly in making or maintaining the allegations in this proceeding or

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otherwise that the Defendant acted improperly. It must be shown, not just that the allegation was wrong, but that it was obviously unfounded, reckless or made out of malice.

28. Self represented Litigant

Cost Orders in favor of self-represented litigants 593. As stated by Chief Justice J. ERNEST DRAPEAU above in McNichol v. Co-operators General Insurance Company, 2006 , supra, Rule 59.01, however, makes it clear that costs are in the discretion of the trial court who can determine by whom and to what extent costs shall be paid and that such costs can be fixed with or without reference to a tariff. In addition, there appears to be a modern trend regarding the granting of costs to unrepresented lay litigants.

594. The Defendant did offer that after due consideration, this Honorable Court may conclude similarly as in McNichol v. Co-operators General Insurance Company, 2006, supra, that the case before this Honorable Court is one that calls for the exercise of the Honorable Courts discretion under Rule 59.01 in a manner favorable to the self-represented Defendant.

595. Following the lead of the above Court in McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may find it appropriate to Order the Plaintiffs to pay costs throughout, which may be similarly fixed at $5,000, in addition to all reasonable disbursements.

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596. As similarly stated in Fong, et al v. Chan, et al, 1999, supra, Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to work ordinarily done by a lawyer retained for litigation, and that as a result, self represented litigants incurred an opportunity cost by foregoing remunerative activity such as the self represented Defendant before this Court. It is abundantly clear that the self represented Defendant in this matter devoted copious amounts of time over many months of his life and exhaustive effort to present interesting and thought-provoking legal argument ordinarily expected of a lawyer, further is evidenced by the quality and voluminous material presented for consideration to this Honorable Court. 597. As is well established by the Courts lay litigants may recover costs, including counsel fees; this is a clear trend of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

598. Costs may be awarded to those lay litigants who can demonstrate devoted time and effort to do work, which ordinarily would have been done by a lawyer retained for same litigation, further, it is consistent that lay litigants incurred an opportunity cost by foregoing their usual remunerative activity; awarding of additional Costs are a useful tool of the Court to encourage settlements and or to discourage or sanction inappropriate behavior, as the case may be.

599. Having considered the above here within provided arguments for costs, this Honorable Court may find it appropriate to Order the Plaintiffs to pay costs throughout, in addition to all reasonable disbursements. 29 Jurisdiction

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600. The person known as the Rentalsmen, is the person who may carry out such duties, as are legislated by Residential Tenancies Act, and has jurisdiction over matters regarding the Residential Tenancies Act, the question arises, what role does a Judge of The Court of Queens Bench of New Brunswick, have in relation to Residential Tenancies Act.

601. In determining if this Honorable Court has Jurisdiction to hear matters regarding Residential Tenancies Act, may require the interpretation of two statues namely: Residential Tenancies Act, S.N.B. 1975, c. R-10.2 Judicature Act, R.S.N.B. 1973, c. J-2

602. Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2 claim that each Act is respectively notwithstanding any other Act, which would of course include each other.

603. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the following excerpt: Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones. 604. Leges Posteriores Priores Contrarias Abrogant: This method of statutory construction in this case, applies to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2. The concept of this stature is the newer statute later abrogates a prior statute only where the two are manifestly inconsistent with and repugnant to each other. The rationale for

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this form of construction is that the newer statute more accurately depicts the current societal mood or more appropriately applies Jurisdiction to a given subject.

605. Though both Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2 claim that each Act is respectively Notwithstanding any other Act, which would of course apply to each of the here within mentioned Acts, based on the Maxim Leges posteriores priores contrarias abrogant, Residential Tenancies Act enacted in 1975, takes precedence therefore the conflicting parts of the earlier Judicature Act enacted in 1973, are in effect, now subordinate.

606. Based on the Maxim Leges posteriores priores contrarias abrogant, the Residential Tenancies Act, is in fact, notwithstanding the any other Act, agreement or waiver to the contrary which includes Judicature Act, R.S.N.B. 1973, c. J-2

607. Additionally, the following definition of notwithstanding is from Black's Law Dictionary (8th ed. 2004),at Page 3378 as follows: NOTWITHSTANDING notwithstanding, prep. Despite; in spite of 608. Defendant Andre Murray comprehends that the above mentioned principles of statutory interpretation are persuasive, especially considering that, when certain things are specified in a law, an intention to exclude all others from its operation may be inferred. Because of this expectation, the legislatures failure to mention the jurisdiction of the Court other than, in a limited appeal

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from a decision of the Rentalsmen capacity, becomes grounds to deduce or conclude (information) from actual evidence of exclusion and reasoning that it was deliberately exclusionary.

609. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 specifically designates authority or jurisdiction to a Judge of The Court of Queens Bench of New Brunswick under subsection 27(1) specifically as the Court's power to decide a case or issue a decree only after and not until after a decision on the subject matter has been made by a Rentalsmen.

610. The Defendant asserts regarding the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 that the necessary pre-condition upon which the Court of Queens Bench can find that it does have jurisdiction, further the sole issue in this case is whether or not the Court of Queens Bench Orders of eviction will be made without jurisdiction; Section 27 of the Residential Tenancies Act sets out the procedure to be followed in an application such as the one before this court, specifically found in subsection 27(1); further, this subject jurisdiction a matter of the Court of Queens Bench Orders to Hear a Motion / Application subsequently granting relative Orders may only occur after the prerequisite decision or Order of the Rentalsmen is or has been issued respectively; moreover, the Court of Queens Bench Trial division has no unilateral Jurisdiction to hear matters within the scope of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 which includes any matters of a Notice to Vacate a Residential Property or Termination of a Residential Tenancy.

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611. The Defendant submits, that because of lack of Jurisdiction {pursuant to the Maxim Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, a.k.a. "Last in Time") and the Maxim Expressio Unius Est Exclusio Alterius (The express mention of one thing excludes all others) }, this Honorable Court should not (in this matter) have rendered a decision which did vacate the Defendant from the 29 Marshall Street further which would vacate Defendant from 31 Marshall Street, respectively; that being a Residential Duplex in the City of Fredericton, as such a decision is within the jurisdiction of the Rentalsmen only, consequence of the Defendants Tenancy since year 2005 inter alia in pursuance with the New Brunswick Residential Tenancies Act.

ALL OF THIS respectfully submitted this day of 2011.

___________________________________ Andr Murray INTENDED APPELLANT

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Schedule A A list of authorities in the order referred to in the Submission 1. Legal Maxim, The welfare of the people is the supreme law. Broom's Legal Maxims(max. 1-10), also Bacon's Maxims (reg. 12) 2. Maxim - Longa possessio parit jus possidendi, et tollit actionem vero domino. Long possession produces the right of possession, and takes away from the true owner his action. Co. Litt. 110. 3. Maxim - Possession is nine-tenths of the law. 4. New Brunswick Federation of Snowmobile Clubs et al. v. New Brunswick All-Terrain Vehicle Federation et al., Summary Judgment Application, 2006 NBQB 149 (CanLII), Justice Peter S. Glennie awarded costs against a Plaintiff who was discontinuing its action against personal Defendants at paragraph 2 and paragraph 33 as follows: (http://canlii.ca/s/szy4) 5. Abuse of Discretion is defined by Lectlaw at the following website: (http://www.lectlaw.com/def/a004.htm) 6. Abuse of Discretion is defined by answers.com at the following website: http://www.answers.com/topic/abuse-of-discretion 7. Canadian Civil Procedure Law page 480, 7. 11 8. Canadian Civil Procedure Law page 483, 7. 14 9. Maxim - Longa possessio parit jus possidendi, et tollit actionem vero domino. Long possession produces the right of possession, and takes away from the true owner his action. Co. Litt. 110. 10. Legal Maxim -The welfare of the people is the supreme law. Broom's Legal Maxims (max. 1-10), also Bacon's Maxims (reg.12) 11. Maxim - Domus sua cuique est tutissimum refugium To everyone his house is his surest refuge.

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12. Maxim A contract founded on a base and unlawful consideration, or against good morals, is null. 13. Maxim - Caveat emptor (let the buyer beware). 14. Maxim - Acta exteriora indicant interiora secreta External actions show internal secrets, i.e., intention may be inferred from a person's actions 15. In Telus Communications (Re: Motion for Substituted Service), 2006 BCSC 26 (CanLII) The Honourable Mr. Justice Burnyeat stated the following There must be a strict compliance with the rules where there is an application to find a person in contempt 16. Boardwalk Reit Limited Partnership v. Busler, 2006 ABQB 695 (CanLII) Honourable Madam Justice L. Darlene Acton stated the following regarding Substitutional service: 17. Maxim - Fraus omnia vitiat Fraud vitiates everything. 18. Kusick v. Kusick, 2007 ABQB 441 (CanLII) Honourable Madam Justice M.B. Bielby stated the following regarding proof which must be provided, that the Respondent has been personally served with or otherwise obtained actual knowledge of the existence of and requirements of an order before one can be found in contempt of that Order and many of the principles apply to the case before this Honorable Court: 19. The Website the free Dictionary by Farlex at http://legaldictionary.thefreedictionary.com/argument provides a definition of ARGUMENT as follows : 20. Maxim - Identitas vera colligitur ex multitudine signorum.- true identity is collected from a number of signs. 21. Wright v. Czinege, 2008 BCSC 1292 (CanLII) The Honourable Madam Justice Humphries stated the following it is settled law that if a claimant fails to serve a defendant with an originating process in accordance with the relevant statutory requirements - including any order for substitutional service made under them and subsequently obtains a default judgment based on the defendants failure to respond, then the default judgment is a nullity.

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22. Maxim - Let no one be relieved or gain an advantage by his own fraud. 23. Maxims - Ex multitudine signorum, colligitur identitas vera. From the great number of signs true identity may be ascertained. Bacon's Max. in Reg. 25. 24. Frustra legis auxilium quaerit qui in legem comittit He who offends against the law vainly seeks the help of the law 25. Campeau v. Campeau, 2005 CanLII 25948 (ON S.C.) Madam Justice J. Mackinnon considered a case where the Respondents moved to set aside a final order made by Justice Lalonde J. on March 7, 2005, after an uncontested trial, and an order made by him without notice was issued. Madam Justice J. Mackinnon commented of ex parte application and the duty of solicitors. 26. Maxim - Verba chartarum fortius accipiuntur contra proferentem The words of deeds are to be interpreted most strongly against him who uses them. 27. Maxim - Injuria non excusat injuriam One wrong does not justify another. 28. Maxim - In pari causa potior est condition possidentis Everyone may keep what he has got, unless and until someone else can prove a better title. 29. Maxim - What a man does by the agency of another is his own act. 30. Wright v. Czinege, 2008 BCSC 1292 (CanLII), Honourable Madam Justice Humphries, regarding requirements for service, stated that requirements for service must be strictly adhered to; for that reason, service improperly effected is not service at all, from paragraph 32 through to and including paragraph 55 31. Hightime Investment Property Ltd. v. Bromley, 2008 BCSC 1353 (CanLII) the question of whether service occurred or did not is examined by review of contrasting affidavits, as well as the unique circumstances in which the courts discretion under Rule 17(9) to set aside a judgment should be exercised, even when all the requisite elements of the Miracle Feeds test have not been satisfied by the applicant, if it would be an injustice to do otherwise 32. The welfare of the people is the supreme law.Broom's Legal Maxims (max. 1-10), also Bacon's Maxims (reg. 12)

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33. Maxim - In pari causa potior est condition possidentis Everyone may keep what he has got, unless and until someone else can prove a better title. 34. Maxim - Possession is nine-tenths of the law. 35. Maxim - No one is bound to arm his adversary 36. Maxim - Rights never die. 37. Maxim - Rerum ordo confunditur, si unicuique jurisdictio non servetur. The order of things is confounded if every one preserves not his jurisdiction. 4 Co. Inst. Proem. 38. Maxim - Longa possessio parit jus possidendi, et tollit actionem vero domino. Long possession produces the right of possession, and takes away from the true owner his action. Co. Litt. 110 39. Maxim - Ignorantia juris quod quisque scire tenetur non excusat Ignorance of the law, which everybody is supposed to know, does not constitute an excuse. 40. Maxim - A public law or right cannot be altered by the agreements of private persons. 41. The law will not intend a wrong.- Legal Maxim, Bacon's Maxims (17, reg. 3) 42. Maxim - Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law. 43. Royal Bank Of Canada v. Zonneveld, 2003 MBQB provides for following the principle of stare decisis, that this Honorable Court may follow this most similar case, and rule in a similar fashion 44. Maxim - Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law. 45. Maxim - Longa possessio parit jus possidendi, et tollit actionem vero domino. Long possession produces the right of possession, and takes away from the true owner his action. Co. Litt. 110.

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46. Maxim - Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law. 47. The welfare of the people is the supreme law. Broom's Legal Maxims(max. 1-10), also Bacon's Maxims (reg. 12) 48. Somwar v. McDonald's Restaurants of Canada Ltd., 2006 CanLII 202 (ON S.C.) SUPERIOR COURT JUSTICE STINSON J. addressed the right to privacy in Canada and how is it protected from paragraph 23 through to an including paragraph 30 49. R. v. Dyment, [1988] 2 S.C.R. 417, Justice La Forest J. stated, regarding the right to privacy and its relationship to human dignity at the following paragraphs 15 through to and including paragraph 23 50. Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 Justice IACOBUCCI J. provided the following insight into the Principles of Statutory Interpretation from paragraph 26 though to and including paragraph 30 51. Maxim - Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law. 52. Service New Brunswick provides the following information About the Office of the Rentalsman at the following URL: http://www.snb.ca/e/1000/1000-2/e/1000-2_003_e.asp 53. Answers.com provides the following definition: leasehold estate at the following URL: (http://www.answers.com/topic/leasehold_estate ) 54. Duhaime.org provides the following definition Tenancy at the following URL: http://dev.duhaime.org/LegalDictionary/T/Tenancy.aspx 55. Lectlaw provides the following Residential Tenancy definition at the following URL: http://lectlaw2.securesites.net/def2/q039.htm 56. Maxim - Perspicua vera non sunt probanda. Plain truths need not be proved. Co. Litt. 16.

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57. Duhaime.org provides further historical reference to the Semayne's Case at the following URL: http://www.duhaime.org/legaldictionary/S/SemaynesCase.aspx 58. Furthermore, let us review of the sanctity of the home, that everyone must not only be, but feel, secure in their residence., The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public's confidence in the administration of justice as expressed in R. v. Lyons, 2007 NBQB 91 (CanLII) by Mr. Justice Riordon 59. Black's Law Dictionary (8th ed. 2004), at Page 988 provides the following definition of UNILATERAL 60. Black's Law Dictionary (8th ed. 2004), at Page 3198 provides the following definition of MORTGAGE 61. Duhaime.org provides the following definition for mortgage at the following URL: http://www.duhaime.org/LegalDictionary/M/Mortgage.aspx 62. Maxim - Nemo potest facere per alium, quod per se non potest No one can do through another what he cannot do himself. 63. The Maxim Caveat emptor (Hob. 99) _ "let the purchaser beware" applies to a purchaser of property whether or not a Mortgage exists. 64. Maxim - Possession is nine-tenths of the law. 65. Maxim - A public law or right cannot be altered by the agreements of private persons. 66. MaximNo rule of law protects a buyer who willfully closes his ears to information, or refuses to make inquiry when circumstances of grave suspicion imperatively demand it. 67. Maxim- nvitat culpam qui peccatum praeterit Translation: Pardon one offence and you encourage the commission of many 68. Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones.

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69. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the following excerpt: Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones. 70. The definition of the Maxim Leges posteriores priores contrarias abrogant is provided at the Legal Dictionary website at the following URL at (http://legaldictionary.thefreedictionary.com/Leges+posteriores+priores+contrarias+abroga nt) 71. Leges posteriores priores contrarias abrogant. Subsequent laws repeal those before enacted to the contrary. 2 Rol. R. 410; 11 Co. 626, 630. A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856. 72. The definition of Leges posteriores priores contrarias abrogant is provided by Wikipedia, at the following URL: http://en.wikipedia.org/wiki/Implied_repeal 73. Definition of notwithstanding is from Black's Law Dictionary (8th ed. 2004),at Page 3378 74. Statutory interpretation should be approached with the following analytical framework set out in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27, at pages 40 and 41 75. Explanation of Statutory interpretation is provided at Wikipedia located at the following URL: http://en.wikipedia.org/wiki/Statutory_interpretation 76. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 provide the following excerpt:Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. Also termed Inclusio unius est exclusio alterius or enumeratio unius est exclusio alteriu. 77. Definition of Expressio Unius Est Exclusio Alterius may be found at the following websitehttp://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusio Alterius.aspx )

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78. The welfare of the people is the supreme law. Broom's Legal Maxims (max. 1-10), also Bacon's Maxims (reg. 12) 79. Maxim - In pari causa potior est condition possidentis Everyone may keep what he has got, unless and until someone else can prove a better title. 80. Qui facit per alium facit per se - He who acts through another is deemed to act in person, i.e., a principal is liable for the acts of his agent. 81. Black's Law Dictionary (8th ed. 2004), at Page 3378, defines: NOTWITHSTANDING 82. Maxim The laws serve the vigilant, not those who sleep upon their rights. 2 Bouv. Inst. n. 2327 83. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the following excerpt: Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones. 84. Definition of notwithstanding is from Black's Law Dictionary (8th ed. 2004),at Page 3378 as NOTWITHSTANDING notwithstanding, prep. Despite; in spite of

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Schedule B The text of all relevant provisions of Statutes or Regulations Rules of Court 18.07.1 Service by Electronic Mail (1) Where service of a document on a solicitor is authorized under Rule 18.03(2) or where service of a document on the solicitor of record is authorized or required by these rules, the document may also be served by attaching a copy of the document to an e-mail message sent to the solicitors e-mail address in accordance with paragraph (2). Service under this paragraph is effective only if the solicitor being served provides by e-mail to the sender an acceptance of service and the date of the acceptance, and where the e-mail acceptance is received between 4 p.m. and midnight, service shall be deemed to have been made on the following day. 18.09 Validating Service Where a document has been served by some method not authorized by an Act, these rules or an order of the court, or where there has been some irregularity in service, the court may order that the service be validated on such terms as may be just, if the court is satisfied that (a) the document came to the notice of the person sought to be served, or (b) the document was left so that it would have come to the notice of the person sought to be served, except for his own attempts to evade service. 25.01 Discontinuance by Plaintiff A plaintiff may discontinue his action against a defendant, either in whole or in part (a) at any time before the close of pleadings, (b) after the close of pleadings, with leave of the court, or (c) at any time, with the written consent of all parties by

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(d) filing with the clerk a Notice of Discontinuance (Form 25A), and (e) serving a copy of the Notice of Discontinuance on all parties who have been served with the Statement of Claim. 25.03 Costs on Discontinuance or Withdrawal A party wholly discontinuing an action or wholly withdrawing his Statement of Defence against another party shall pay the costs of the other party to date, including the costs of any cross-claim or third party claim, unless the court orders or the parties agree otherwise. 59.01 Authority of the Court (1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid. Residential Tenancies Act, S.N.B. 1975, c. R-10.2 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, 10(2) A tenancy agreement is capable of taking effect at law or in equity from the date fixed for commencement of the tenancy without the requirement of any entry onto the premises. (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; and (b) arising or entered into before or after this Act comes into force. 13(7) Where a landlord transfers his estate in the real property of which the demised premises form all or a portion (a) the transferee assumes all of the obligations with respect to the tenancy; and (b) no action lies against the transferor for any obligation with respect to the tenancy; arising after notification of the transfer takes place in accordance with subsection (8).

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13(8) Where a landlord transfers his estate in the real property of which the demised premises form all or a portion he shall notify the rentalsman and the tenant of such transfer in the form prescribed by regulation within seven days after such transfer. 13(9) Where pursuant to subsection (7) a transferee assumes the obligations with respect to a tenancy, he is a landlord for all purposes of this Act. 13(9.1) Subsections (7), (8) and (9) do not apply where the landlord transfers an estate in the property to a mortgagee solely for the purpose of mortgaging the real property of which the premises form all or a portion. 24(1)A notice of termination of a tenancy is to be served by a landlord or tenant is to be served (a)if the premises are let from year to year, by the landlord or the tenant at least three months before the expiration of any such year to be effective on the last day of that year; 24.2Sections 24.3 to 24.7 apply to all tenancies of premises, other than mobile home sites, that have been occupied by the same tenant for five consecutive years or more. 24.7(1) (a) the landlord intends in good faith that the premises will be occupied by the landlord, the landlords spouse, a child of the landlord, a parent of the landlord or a parent of the landlords spouse, (b) the premises occupied by the tenant will be used other than as residential premises, (c) the premises will be renovated to such an extent that vacant possession is necessary to perform the renovation, or (d) the tenancy arises out of an employment relationship between the tenant and the landlord in which the employment relates to the

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maintenance or management of the premises, or both, and the employment relationship is terminated. RENTALSMEN 26(1) The Lieutenant-Governor in Council may appoint one or more persons as rentalsmen who shall carry out such duties as are prescribed by this Act and the regulations.

Property Act, R.S.N.B. 1973, c. P-19 is provided below. Property Act, R.S.N.B. 1973, c. P-19 47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estate, interests and rights to which the mortgage has priority, but subject to all estates, interests and rights that have priority to the mortgage. Manitoba Residential Tenancies Act, C.C.S.M., c. R119 [23] Landlord is defined in the R.T.A. as:

"landlord" includes (a) the owner, or other person permitting or granting a right to occupancy of the rental unit, and his or her heirs, assigns, personal representatives and successors in title, (b) a person, other than a tenant occupying the rental unit, who is entitled to possession of the residential complex in which the rental unit is located and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent, and (c) a mortgagee who attempts under the terms of the mortgage to evict a tenant from a rental unit; Mortgages Act, R.S.O. 1990, c. M,

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47(1) A person who becomes the mortgagee in possession of mortgaged residential premises which are the subject of a tenancy agreement between the mortgagor and a tenant or who obtains title to the residential premises by foreclosure or power of sale shall be deemed to be the landlord under the tenancy agreement. (3) A person who is deemed to be a landlord is subject to the tenancy agreement and to the provisions of the Landlord and Tenant Act which apply to residential premises. 48(1) No person exercising rights under a mortgage may obtain possession of residential premises from the mortgagors tenant except according to the provisions of the Landlord and Tenant Act which apply to residential tenancies. (2) A person exercising rights under a mortgage who gives notice of termination of a tenancy shall be deemed to be a landlord under subsection 47(1). New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. Judicature Act, R.S.N.B. 1973, c. J-2 9(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely:

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