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Part II - FACTS A concise statement of all relevant facts with such references to the evidence as may be necessary; Hearing

Rule 1. The Learned Trial Judge rendered a decision without fully hearing

INTENDED APPELLANT, further the Court did unreasonably refuse to allow INTENDED APPELLANT the opportunity to rebut statements made at the March 12, 2012, Hearing, without just cause moreover despite INTENDED APPELLANTs objections. The subject Hearing was scheduled for one hour, despite this the Court ended the Hearing early consequentially not allowing for INTENDED APPELLANT to rebut and or provide closing statements before judgment. 2.

The Learned Trial Judge did unreasonable refuse to accept

INTENDED APPELLANT s Brief which was an essential part of INTENDED APPELLANT s presentation to the Court. The Court did unreasonably refuse to accept any Brief from INTENDED APPELLANT, relying on rules of Court that the Court confirmed did not apply to Motions. 3.

The Learned Trial Judge did repeatedly interrupt INTENDED

APPELLANT, not allowing the Appellant to present argument and reasons for the Honorable Courts consideration. Bias Rule 4. The Learned Trial Judge failed and or refused to understand the facts

and arguments as presented by the Appellant and instead pursued only the assertions as presented by the Respondent, this predisposition of the Learned Trial Judge toward a particular result is such that INTENDED APPELLANT

verily perceives a reasonable apprehension of bias that must be is raised. The Appellant contends that reasonable apprehension of bias is perceivable by the fact that the learned Trial Judge only accepted argument and evidence which favored the Defendants position, furthermore, the learned Trial Judge made obviously erroneous statements at the hearing which reasonably must be based on incorrect information, contrary to the facts of the case. 5.

The Learned Trial Judge did refuse to accept corroborative Affidavit

evidence filed by Intended Appellant and instead relied on Affidavit Evidence of the Intended Respondent which actually confirmed by way of admission, admitted to the claims and behavior to which INTENDED APPELLANT was seeking relief, again corroborating INTENDED APPELLANT claims. 6.

The Learned Trial Judge did unreasonably declare at the beginning of

the hearing, before any arguments had yet been made, that the Court would render a decision that day, which Intended Appellant verily believes does demonstrate a reasonable Apprehension of Bias. 7.

The Learned Trial Judge did treat INTENDED APPELLANT with

disrespect and condemnation, claiming INTENDED APPELLANT was able to cite the Rules of Court when it favored INTENDED APPELLANT, indicating in no uncertain terms, at that point, that the Court has opinions regarding Plaintiff in that matter, opinions which are irrelevant to the Hearing and does demonstrate reasonable apprehension of Bias. Error in Law

8.

The learned Trial Judge erred in law, in unjustly applying the Courts

Discretion in favor of the Intended Respondent. 9.

The Learned Trial judge did display abuse of discretion, which is an

adjudicator's failure to exercise sound legal principals, reasonably applicable to the matters before the Court; however, the Learned Trial Judge rendered decisions which are unsupported by the evidence therefore are clearly based on erroneous findings of material fact. 10.

The learned trial judge erred in law in not keeping with the general

direction as found expressed in the New Brunswick Rules of court Rule 1.03 (2) by not rendering a just decision, further, the decision was inappropriately determined by Courts discretion therefore not on its merits. 11.

The Learned Trial Judge did error in law, in misapplication of the

Rules of Court to prejudicially Bar INTENDED APPELLANT from submitting relevant Case law Authorities and complete Argument found within INTENDED APPELLANTs Brief for the Courts Consideration, thereby buttressing the Appellant claims for relief.

Findings of Fact 12. The factual findings made by the Learned Trial Judge are not supported by the record further unsupported by the evidence, therefore should not be allowed to stand, because the Appellant can show that the unilateral findings of the Learned Trial judge are unreasonable, based on a material misapprehension of the evidence considered, alternatively tainted by a failure to consider relevant substantive evidentiary material evidence. The effect is

experienced as significantly unjustified prejudice and or injustice to the Appellant. The Learned Trial Judge did make a palpable and overriding error. Learned Trial Judge dismissed the INTENDED APPELLANTs Affidavit material despite same being corroborative, and instead accepted the INTENDED RESPONDENTs Affidavit material which was at most times diametrically irrelevant, and superfluous however the portions which in fact further corroborated the INTENDED APPELLANTs claims where then misapprehended by the Honorable Court to be used against the INTENDED APPELLANT. 13. The Learned Trial Judge, subjectively demonstrated that the Learned

Trial Judge did not appreciate the argument advanced by INTENDED APPELLANT , consequently failed or refused to understand the legal principles relied on, in support of INTENDED APPELLANT s argument, further, the Learned Trial Judge failed or refused to review and understand the relevant evidence. 14.

Manifest Abuse of Discretion was exhibited when the Learned Trial

Judge asserted a Discretionary Decision unsupported by the evidence choosing instead to arrive at erroneous findings of a material facts, the Appellant therefore claims that the Learned Trail Judge has exhibited Manifest Abuse of Discretion. 15.

Under these circumstances it would be a disservice to the

administration of justice to allow this decision to stand.

16.

The Leaned Trail Judge did demonstrate Omissions in reason for

judgment, which amount to material error, because 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.

COSTS 17. INTENDED APPELLANT (as Plaintiff) provided argument that Costs should reasonably be awarded to INTENDED APPELLANT. It follows that lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, lay litigants, by foregoing remunerative activity, incurred an opportunity cost. It is self evident the Intended Appellant did expend considerable time and energy preparing for the Hearings, in contrast the Intended Respondent did not prepare or provide any written Brief or submissions. 18.

Learned Trial Judge in exercising her discretion with regards to Cost

award to the Plaintiff is manifestly without merit, exercised contrary to the facts of the case, therefore excessively disproportionate, therefore, injustice and prejudice would result if the Cost award is allowed to stand. 19.

The Learned Trial Judge did exercise the Courts discretion that may

be qualified as Manifest Abuse of Discretion, as was observed when the Courts decision was unsupported by the evidence, further, clearly based on a erroneous finding of material facts, and was exercised arbitrarily or capriciously as in this case.

20.

In this matter the Learned Trail Judge has demonstrated Manifest

Abuse of Discretion, by inappropriately awarding excessive costs to the Intended Respondent, moreover the unjust awarding of undeserving cost, as evidenced by the amount awarded in favor of the Intended Respondent in these circumstances; Intended Appellant contends, it would be a disservice to the administration of justice to allow this Award of Costs to stand. 21.

INTENDED APPELLANT does apply in the alternative for an

extension of time to issue and serve a Notice of Appeal in the event that the judge hearing the motion rules that the subject order (or decision) is not interlocutory for purposes of being granted Leave to Appeal; 22.

INTENDED APPELLANT claims the reason for delay was

unavoidable; moreover INTENDED APPELLANT claims there is no prejudice to the INTENDED RESPONDENT in this matter by granting the herein requested extension of time for filing and service of the NOTICE OF MOTION FOR LEAVE TO APPEAL.

C. PART III - ISSUES Extension of time for service and filing Motion for eave to Appeal procedure is not the master but rather the servant of justice 1. Question for the Court to answer:

Should the Court, pursuant to Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court the Court, extend time required for filing and service of the INTENDED APPELLANTs NOTICE OF MOTION FOR LEAVE TO APPEAL, Dated April 5, 2012;

2 Introduction 23. The Court may at any time dispense with compliance with any rule,

unless the rule expressly or impliedly provides otherwise, procedure is not the master but rather the servant of justice and should be applied accordingly, to see that justice is done. 24.

A procedural error, including failure to comply with these rules or

with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. 25.

Canadian Judicial Council Statement of Principles on Self-represented

Litigants and Accused Persons: B. PROMOTING EQUAL JUSTICE STATEMENT: Judges, the courts and other participants in the justice system have a responsibility to promote access to the justice system for all persons on an equal basis, regardless of representation. PRINCIPLES:

1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. 2. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case. 3. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible. 26. As stated in the above Canadian Judicial Council Statement of

Principles on Self-represented Litigants and Accused Persons, Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case, further INTENDED APPELLANT respectfully asserts, that that the balance of convenience favors the granting of the relief therefore sought. 3 The Grounds 27. Pursuant to Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court,

the Court, may, extend time required for filing and service of the INTENDED APPELLANTs NOTICE OF MOTION FOR LEAVE TO APPEAL, Dated April 5, 2012; 28. Maxim - Neminem laedit qui jure suo utitur. A person who exercises

his own rights injures no one.

29.

Maxim - Bonum judex secundum aequum et bonum judicat, et

aequitatem stricto juri praefert. A good judge decides according to justice and right, and prefers equity to strict law. Co. Litt. 24. 30. Maxim - In all affairs, and principally in those which concern the

administration of justice, the rules of equity ought to be followed. 31.

The legal website duhaime.org provides the following insight into the

principles of equity: at (http://www.duhaime.org/LegalDictionary/E/Equity.aspx) Equity Definition: A branch of English law which developed hundreds of years ago when litigants would go to the King and complain of harsh or inflexible rules of common law which prevented "justice" from prevailing. In the 1870s, England and its colonies merged the courts but not the doctrines (in statutes called "judicature"). Although under the umbrella of a unified judiciary, where the principles conflicted, equity was stated to have precedence over the common law. Ontario's initiative is a good sample, now known as the Courts of Justice Act (1990 RSO Chapter C-43; v. 2007), where at 96:

It gives equity rank over the common law ("where a rule of equity conflicts with a rule of the common law, the rule of equity prevails"); Merges the Courts by requiring that there shall no longer be a separate court for equity ("Courts shall administer concurrently all rules of equity and the common law"); and Only federally-appointed judge, also known as "superior-level courts", may consider equity claims or grant equity relief ("only the Court of Appeal and the Superior Court of Justice, exclusive

of the Small Claims Court, may grant equitable relief, unless otherwise provided"). A whole set of equity law principles were developed based on the predominant fairness, reason and good faith characteristics of equity as reflected in some of its maxims: equity will not suffer a wrong to be without a remedy or he who comes to equity must come with clean hands. 32. The New Brunswick Judicature Act, RSNB 1973, c J-2, also

provides for equity law principles based on the predominant principles of fairness, reason and good faith which are characteristics of equity, in the following section 26(8), 32 and 39 (emphasis added): 26(8) Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the Court and every judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations and liabilities existing by the common law or created by any statute, in the same manner as the same would have been recognized and given effect to by the Supreme Court, either at law or in equity, if The Judicature Act, 1909 had not been enacted. 32 Stipulations in contracts as to time or otherwise, which would not before the commencement of The Judicature Act, 1909 have been deemed in a Court of Equity to be or to have become of the essence of such contracts, shall receive in the Court the same construction and effect as they would heretofore have received in Equity. 39 Generally, in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.

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33.

Rule 1.03(2) of the Rules of Court direct the Court so that these rules

shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits (to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing). 34.

Rule 2.01 of the Rules of Court provides the Court with the express

tool to dispense with compliance with any rule (the rules of equity shall prevail). 35.

Rule 2.02 of the Rules of Court compels Courts to overlook

procedural errors and to take appropriate measures to secure the just determination of the matters in dispute between the parties ( fairness, reason and good faith) 36.

Rule 2.04 of the Rules of Court direct the Court, that in any matter of

procedure not provided for by the Rules of Court or by an Act, the court may, on motion, give directions.(to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing). 37.

Rule 3.02 of the Rules of Court direct the Court on such terms as may

be just, to extend the time prescribed by an order or judgment or by the Rules of Court; (to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

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4. Rule 1.03, 2.01. 2.02, 2.04 and 3.02 38. 39. Maxim - Justitia nemine neganda est. Justice is not to be denied.

Maxim - Lex non deficit in justitia exibenda. The law does not fail in

showing justice. 40.

The Rules of Court are that which enables rights to be delivered and

claims to be enforced. As such, a Court should interpret and apply the Rules of court to ensure, to the greatest extent possible, that there is a determination of the substantive matters in dispute between the Parties, unless the application of the Rules of Court would result in a serious prejudice or injustice. 41.

Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court are 1.03 Interpretation (1) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Judicature Act apply to these rules. (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. (3) The arrangement of these rules and their title headings are primarily intended for convenience, but may be used to assist in their interpretation. 2.01 The Court Dispensing with Compliance The court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 2.02 Effect of Non-Compliance

reproduced as follows:

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A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. In particular, the court shall not set aside any proceeding because it ought to have been commenced by an originating process other than the one employed. 2.04 Where No Procedure Provided In any matter of procedure not provided for by these rules or by an Act the court may, on motion, give directions. 3.02 Extension or Abridgment (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules. (2) A motion for extension of time may be made either before or after the expiration of the time prescribed. (3) Where the time prescribed by these rules relates to an appeal, only a judge of the Court of Appeal may make an order under paragraph (1). (4) Any time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by consent. 42. Regarding Rules Rule 2.02, In Juniberry Corp. v. Triathlon Leasing

Inc., 1995 CanLII 6225 (NB C.A.) Justice TURNBULL, J.A. stated the following regarding the application of Rule 2.01 beginning at page 7 through to page 8 as follows: Rule 2.02 further directs: ... all necessary amendments shall be permitted ... at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties.

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These are rules of procedure as opposed to the substantive law which defines substantial legal rights and claims. The rules are the vehicle that enables rights to be delivered and claims to be enforced. As such, a Court should interpret and apply the rules to ensure, to the greatest extent possible, that there is a determination of the substantive law unless the application of the rules would result in a serious prejudice or injustice. Accordingly, amendments to pleadings are generally allowed. That is the reason for the use of such phrases as "determining the real questions in dispute" in Rule 27.10 and "just determination of the matters in dispute" in Rule 2.02. As a general principle, therefore, the rules of procedure should not be used to prevent the delivery of rights; nor should they be used to preclude the enforcement of claims which are derived from the substantive law. 43. The Rules of Court are rules of procedure as opposed to substantive

law which defines substantial legal rights and claims. The Rules of Court are the vehicle that enables rights to be delivered and respective claims to be enforced. As such, a Court should interpret and apply the rules to ensure, to the greatest extent possible, that there may be a final determination based on the applicable substantive law unless however the application of the rules would result in a serious prejudice or injustice. In this case from the March 13, 2012, transcript decision, the 21 day time difference between serving the INTENDED APPELLANTs NOTICE OF MOTION FOR LEAVE TO APPEAL, Dated April 5, 2012, which should have been served March 20, 2012 and the actual date of service of April 10, 2012, does not cause any prejudice or injustice to the INTENDED RESPONDENT. Between the time of being served with the INTENDED APPELLANTs NOTICE OF MOTION FOR LEAVE TO APPEAL, Dated April 5, 2012 and the hearing of this matter reasonably allowed a full 27 days to prepare for the scheduled hearing. Accordingly, extensions of time are generally allowed, so that there may be a determination

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of the real questions in dispute and just determination of the matters, as expressed by Rule 2.02. Rules of procedure should not be used to prevent the delivery of rights; nor should they be used to preclude the enforcement of claims which are derived from the substantive law. 44.

In Western Surety Co. v. National Bank of Canada, 2001 NBCA 15

(CanLII) J. ERNEST DRAPEAU, J.A.. stated the following regarding application of Rule 2.02. May it please the Honorable Court the found at paragraph 91 as follows: [91] Rule 2.02 of the Rules of Court enjoins courts to overlook procedural errors and to take appropriate measures to secure the just determination of the matters in dispute between the parties. 45. The word enjoins was of particular note to the Applicant, the

definition is provided below from Black's Law Dictionary (8th ed. 2004) , Page 1608 describes ENJOIN as follows: enjoin, vb. - 2. To prescribe, mandate, or strongly encourage 46. Furthermore in LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII)

RIDEOUT, J. stated regarding applying Rule Rules 1.03(2); 2.02; 3.02(1) and (2) REFERENCE: (please see paragraph 11 to 19) that Honorable Court must consider what is necessary to see that justice is done? as follows:

[15] In particular, he relied on the case of Simpson v. Saskatchewan Government Insurance Office, 65 D.L.R.(2d) 328, and cited the following passage from page 333 of the decision: 6 "In an application to renew a writ of summons the basic question which faces the court is, what is necessary to see that justice is done? That question must be answered after a careful

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study and review of all the circumstances. If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. This should be done even if the only reason for non-service is the negligence, inattention or inaction of the plaintiff's solicitors and notwithstanding that a limitation defence may have accrued if a new writ was to be issued. If the non-service of the writ was due to the personal actions of the plaintiff, that, of course, would be a fact to be considered by the court. Each case should be considered in the light of its own peculiar circumstances and the court, in the exercise of its judicial discretion, should be determined to see that justice is done." 7The rule which emerges from these cases unequivocally recognizes that the court's main concern must be to see that justice is done and to make certain that the extension of time for service does not prejudice or work any injustice to either of the parties... [19] I am satisfied that the delay in service was caused by the lawyer which in the circumstances should be treated as a neutral event. I am also satisfied that the Defendants insurer has not and will not suffer any prejudice if the Plaintiffs motion is granted. However, prejudice will occur to the Plaintiff if the time period for service is not extended. Therefore justice will be done if the time period for service is extended. 47. 2528 as: justice. 1. The fair and proper administration of laws. 48. Justice is defined by Black's Law Dictionary (8th ed. 2004), at Page

What is necessary to see that justice is done? A refusal to grant the

requested time extension would do an obvious and substantial injustice to the INTENDED APPELLANT, if not overlooked by the Court would defeat the

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INTENDED APPELLANTs Motion, on a minor technicality, this subject time extension and the denial thereof, cannot be observed as justice, or fair and proper administration of laws. While to permit the requested time extension is not going to work any substantial injustice to the INTENDED RESPONDENT or prejudice the INTENDED RESPONDENT, therefore the extension should be granted. This should be done even if the only reason for non-service is the error, inattention or inaction of the INTENDED APPELLANT. In this case late service of the INTENDED APPELLANTs NOTICE OF MOTION FOR LEAVE TO APPEAL, Dated April 5, 2012 was due to an honest mistake of the self represented INTENDED APPELLANT, in reading and applying the rules of Court. The INTENDED APPELLANT requests that the Honorable Court exercise its judicial discretion, to see that justice is done. 49.

In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A.

LaVIGNE stated the following regarding granting an extension of time.; REFERENCE: (Please see at paragraph 16 19),: 16. Rule 3.02 states: 3.02 (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these Rules. (2) A motion for extension of time may be made either before or after the expiration of the time prescribed. ... 17. Rule 2.02 clearly stipulates that failure to comply with the Rules must be treated as an "irregularity", which can be remedied to secure the just determination of the matters in dispute.

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18. Rule 1.03(2) provides that this Court should apply the Rules so as to secure a just, least expensive and most expeditious determination of every proceeding on its merits. 19. The main concern in cases such as this is to see that justice is done and to make certain that any extension of time for service does not prejudice or work injustice to the parties involved. 50. Again it is often found expressed by the judiciary, that the main

concern in cases such as this is to see that justice is done and to make certain that any extension of time for service does not prejudice or work injustice to the parties involved, nevertheless, a failure to comply with the Rules must be treated as an "irregularity", which can be remedied to secure the just determination of the matters in dispute, further the Court should apply the Rules, so as to secure a just, least expensive and most expeditious determination of every proceeding on its merits. 51.

In K.C. v. New Brunswick (Health and Community Services), 1998

CanLII 17954 (NB CA) ( http://canlii.ca/t/25rlz) Chief Justice J. ERNEST DRAPEAU, J.A., stated the following regarding Rule 3.02(1) as follows: [Page 3] Rule 3.02 (1) permits the court to extend the time prescribed by an order, judgment or the rules. Thus, where the statute does not fix a deadline the court may extend the time under the authority of Rule 3.02(1). 52. In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The Honorable

Chief Justice J. Ernest Drapeau regarding whether the appellant had unduly delayed preparation and perfection of his appeal, REFERENCE: (staring at page 1 through to and including page 3) stated as follows:

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This is a motion by the respondents, other than Par Syndication Group Inc., for an order dismissing the appeal pursuant to Rule 62.23(1)(c) of the Rules of Court on the ground that the appellant has unduly delayed preparation and perfection of his appeal. Dismissal of an appeal for failure to comply with Rule 62.15 is only appropriate "where it is shown that the interests of justice would be illserved by a less drastic measure." See New Brunswick (Minister of Family and Community Services) v. A.N., [2002] N.B.J. No. 373 (C.A.) -3(Q.L.). The same approach is warranted when Rule 62.23(1)(c) is brought into play. In our view, the interests of justice would be better served by an order under Rule 62.24(1)(a)(ii) directing the appellant to perfect his appeal within a specified time. Disposition The motion for an order under Rule 62.23(1)(c) is dismissed. The appellant is directed to perfect his appeal on or before December 19, 2003, failing which it will stand dismissed. The unique circumstances of the present case warrant an order of costs against the moving parties in favour of the self-represented appellant. We fix those costs at $750. There will be no order of costs in favor of Par Syndication Group Inc. 53. To not grant the requested time extension, would have the effect of a

dismissal of the INTENDED APPELLANT Motion for leave to appeal, without hearing the merits of the application. A dismissal of the matter for failure to comply with a Rule is only appropriate, where it is shown that the interests of justice would be ill-served by a less drastic measure.

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54.

Applicant Andr Murray is confident that it is the intention of The

Honorable Courts of New Brunswick in "determining the real questions in dispute" to not allow procedural matters to cloud or impede our journey to find remedy in this matter. Applicant Andr Murray contends that the balance of convenience favors the granting of the relief sought, which is a time extension. Granting the requested time extension will not prejudice the INTENDED RESPONDENT in any way. Not granting the requested Orders while be an undeniable prejudice to the INTENDED APPELLANT, who would be barred from relief without just cause (which would contrary the Rules of Court, jurisprudence and the principles of equity favoring the Granting of the Orders). Part IV A concise statement setting out clearly and particularly in what respect the order or decision appealed from is alleged to be wrong; any irregularity complained of or any objection intended to be relied on, specifying the grounds intended to be argued, including reference to any statutory provision or rule intended to be invoked); The appellants grounds for this appeal are as follows: Hearing Rule 55. The Intended Appellant relies upon Natural Justice and procedural

fairness which requires administrators adhere to a fair decision-making 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'). The Court rendered a decision without fully hearing the Intended Appellant, further the Learned Trial judge did error by did most egregiously refusing to allow the Intended Appellant opportunity for rebuttal of argument forwarded by the Defendant at the March 12, 2012, Court Hearing of subject

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matter, moreover, despite the Intended Appellants objections. The Court during preliminary matters did unreasonable refuse to accept the Intended Appellants Brief which was an essential part of the Intended Appellants presentation to the Court. 56. In Matondo v. Canada (Minister of Citizenship and Immigration),

2005 FC 416 (CanLII), The Court did comment on the Right to be heard at paragraph 18 and 19 as follows: RIGHT TO BE HEARD [18] Perhaps there are those who have to be reminded that the right to be heard is at the heart of our sense of justice and fairness. ...That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca's Medea, enshrined in the scriptures, mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden. [Footnotes omitted] de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed) (London: Sweet & Maxwell, 1995), pp. 378-379. [19] The reference to the Garden of Eden is a reference to Dr. Bentley's case (The King v. the Chancellor, & c., of Cambridge, (1723) 1 Stra. 557). This is what Byles J. had to say about it in Cooper v. The Wandsworth Board of Works (1863), 143 E.R. 414 at p. 420: .. The judgment of Mr. Justice Fortescue, in Dr. Bentley's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says, "The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have

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heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence... 57. The right to be heard is at the heart of our interpretation of justice and

fairness, further the laws of God and man both give a party an opportunity to make his defence, if he has any. This Hear the Other Side most important, consequential, or influential dictum in law and Rule requires that a person must be allowed an adequate opportunity to present their case where and when definite interests and rights may be adversely affected by a decision-maker. To ensure that these rights are respected, the deciding authority must give both the opportunity to prepare and present evidence and to respond to arguments presenting by the opposite side. The herein subject INTENDED APPELLANT attempted to present to the Learned Trial Judge, for consideration, a Post Hearing Brief which provided a coherent and extensive argument, case law and supporting authorities, so that the Court would have this beneficial tool to consider when contemplating the remedy therefore providing the relief that would be appropriate in the circumstances for all concerned parties not only the INTENDED APPELLANT. This subject Post Hearing Brief was refused by the learned trial judge which must be irrational and or alternatively, as the case may be, explainable only as a reasonable apprehension of bias. 58.

When conducting an inquiry, in relation to a dispute, it is important

that the person or matter being complained against is advised of the allegations in as much detail as possible and given the opportunity to reply to the allegations. In this case before the Court, the INTENDED RESPONDENT was not provided this subject opportunity. The relevant Post hearing brief that the Learned Trial Judge refused to accept was complimentary and an expansion of

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that same argument, providing relevant case law and authorities on point, and augmenting or complementary to material already placed in the served Notice of Motion. 59.

The Appellant relies, that Natural Justice and procedural fairness

requires administrators adhere to a fair decision-making 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 have any property or legal right compromised by a court of law without having heard that person, in this case to fully hear the INTENDED APPELLANT required the Court to consider a Post Hearing Brief, an essential component of the INTENDED APPELLANTs argument moreover a valuable reasonably beneficial tool to arriving at a relevant decision. Fair decision-making procedure, would have been to accept the INTENDED APPELLANTs Post Hearing Brief and consider same before rendering a fair and balanced decision, based therefore on being well informed and abreast of all relevant facts and authorities. 60.

In Moreau-Brubv. New Brunswick (Judicial Council), 2002 SCC 11

(CanLII), [2002] 1 S.C.R. 249, the Supreme Court of Canada confirmed at paragraph 35, that the right to be heard is part of the Courts obligation to act fairly, however, the duty of an administrative body to adhere to that right is to be decided on a case by case analysis: The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority (see Nicholson v. Haldimand-Norfolk Regional

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Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311; Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, at p. 653; Baker, supra, at para. 20; Therrien, supra, at para. 81). Within those rules exists the duty to act fairly, which includes affording to the parties the right to be heard, or the audi alteram partem rule. The nature and extent of this duty, in turn, "is eminently variable and its content is to be decided in the specific context of each case" (as per L'Heureux-Dub J. in Baker, supra, at para. 21)

61.

In Munn v. Rust, 2006 NBCA 87 (CanLII) Justice M.E.L. LARLEE,

J.A. stated the following regarding a matter where the Judge was refusing to consider a parties application to cross-examine the deponents of the affidavits, consequentially, the motion judge failed to exercise the Courts discretion judicially provided here below from paragraph 13 to through 16 as follows: [14] I am of the view that, in refusing to consider Mr. Munns application to cross-examine the deponents of the affidavits, the motion judge failed to exercise her discretion judicially. Mr. Munn had a right to be heard on that issue, and procedural fairness required the motion judge to hear him. It is only after hearing Mr. Munns arguments in support of his request to cross-examine and any arguments made in reply, that the motion judge would have been able to judicially exercise the discretionary powers conferred by Rule 39.03. [15] In my view, the appeals should be allowed on the common ground raised in both Notices of Appeal that allege that the motion judge erred in the exercise of the discretion conferred by Rule 39.03. It follows that the judges order striking out those portions of the Plaintiffs Statement of Claim which assert a claim against the Defendant, Edward B. Rust Jr., must be set aside. 62. In refusing to consider INTENDED APPELLANTs Post Hearing

Brief, and refusing to allow the INTENDED APPELLANT to rebut the

24

statements made by the INTENDED RESPONDENT, the motion judge failed to exercise her discretion judicially. INTENDED APPELLANT had a right to be heard on the issues before the Court, and procedural fairness required the motion judge to hear him. It is only after considering INTENDED APPELLANTs Post Hearing Brief arguments in support of his Motion, that the motion judge would have been able to judicially exercise the discretionary powers to grant or dismiss the INTENDED APPELLANTs Motion on its merits. Consequentially, without fully considering the INTENDED APPELLANTs material, the entire merits of the matter cannot reasonably be deemed to have been considered. 63.

On the 26th day of April, 2012, I caused the herewithin below

indicated time marked excerpts to be precisely duplicated and transcribed to the best of my ability word for word as per the Court Stenographer CD recording provided to me for the March 12, 2012 Hearing of Motion before Madame Justice Clendening. I further confirm that close to 98% of the entire significant recording of that Subject Court Hearing has been transcribed and provided below, for that purpose, precisely time marked as indicated on the Court Stenographers CD recording of subject Court Hearing of Motion before Madame Justice Clendening March 12, 2012: Please note that I have provided my comments as indented areas below each excerpt as the case may be. 64. 4:06:10 PM COURT: This is a Motion between Andre Murray and dumm I guess Trina Rodgers Sigh although Sigh at this stage ahh Trina Rodgers is not ughm actually listed as a Defendant but I am assuming And others is ahh Mr. Murrays way of indicating that tum she is a Defendant 65. 4:06:37 PM COURT: this is as far as I can tell, from trying to read the Motion

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An application by Mr. Murray for costs because of the allegation that Trina Rodgers has cost him a time and money because she is alleged by him to be evading service. I Andre Murray perceive that there is a serious misapprehension by the learned Trial Judge of the Orders that which where requested dealt primarily, as a request, that Substituted Service and sequential Validation of Substituted Service be granted; that the unnecessary costs to date resulted from Defendant Trina Rodgers Avoidance of Service and the granting of these Service methods will reduce costs. 66. 4:06:37 pm JUDGE: All right Mr. Murray you have until 4:30 you were given this time expedited time ahhh on the basis of a half hour then I will need the next fifteen minutes to give my decision which I will give today. 67. 4:07:18 JUDGE: And I note that Mr. and Miss Rodgers your here representing yourself ! ? I Andre Murray perceive that the Learned Trial Judge has a previous or personal knowledge of the Defendants, as they have not voluntarily identified themselves nor were they asked to identify themselves. I must ask myself how the learned judge knows that Trina Rodgers is Trina Rodgers also if this was a reasonable deduction then the man with Trina Rodgers should reasonably be her lawyer or legal council. How did the judge know Mr. Rodgers without him being first introduced? 68. 4:07:18 PM PLAINTIFF: As a preliminary matter your Honour, I have a post hearing brief I would like to submit to the Court 69. 70. 71. 72. 4:07:22 PM COURT: Nope 4:07:23 PLAINTIFF: Your not going to accept a post hearing brief? 4:07:26 PM COURT: Nope 4:07:27 PLAINTIFF: Why?

73. 4:07:28 PM Court : Because I didn t ask for one. And there is nothing in the rules which allows you to file one. If I wanted a post trial brief I

26

would make an Order for a post trial brief. We havent even done the trial yet. Sooo I Plaintiff Andre Murray perceive that the Learned Judge: Madame Justice Clendening is extremely unbalanced as we see that despite the fact that the Court Hearing is a MOTION reasonably Madame Justice Clendening continues to be offered by the Plaintiff a Post Hearing Brief despite this Madame Justice Clendening continues to speak of a Post Trial Brief. Point is this is not a TRIAL it is a Hearing of MOTION. 74. 4:07:37 PM COURT: Just get on with itI dont need it I am going to give you my decision today 75. 76. 77. it? 78. 4:07:40 PLAINTIFF: Will ahh 4:07:41 PM COURT interrupting: I dont want it 4:07:42 PLAINTIFF: If this was a pre-trial brief would you accept

4:07:46 PM COURT: I have all your stuff for pre-trial And

79. 4:07:49 PM PLAINTIFF: No you do not you do not have a brief yet. So thats why 80. 4:07:50 PM COURT: If you interrupt me one more time this matter will be ended before it begins. I Plaintiff Andre Murray perceive that the Learned Judge: Madame Justice Clendening is at this point exhibiting intolerance; as a self represented litigant eager to contribute the Plaintiff reasonably in this case believes the Honorable Court has completed a thought to be completed, therefore, he asserts that a brief has not been provided; the Plaintiff has mistakenly called the Brief POST when in reality it intended simply as a Brief, 81. 4:07:57 COURT: I do not want a pre-trial Brief and I do not want a post Trial Brief I do not need, either, and if you were going to file a pre-trial brief you would have to do it according to the Rules. Of which you seem very capable of reciting when it is to your benefit. So no, you have not filed it properly under Rule 37, 38 and 39,and I am not taking your pretrial or post

27

trial brief, so you go ahead and present me your arguments on this one motion today. I Plaintiff Andre Murray perceive Learned Judge: Madame Justice Clendening is now becoming further unbalanced we see Justice Clendening now contradicting herself: Rules denied now exist as she quotes them and MOTIONS are TRIALS 4:07:28 PM COURT: And there is nothing in the rules which allows you to file one. Compared to following time mark: 4:07:57 COURT: you have not filed it properly under Rule 37, 38 and 39, and I am not taking your pretrial or post trial brief, 82. 4:08:25 PM PLAINTIFF: can you please point to me the Rule of Court which bans me from from having to er ra makes an obligation for me to have to file this before the hearing 83. 4:08:35 PM COURT: Of Course I will, judge shuffling papers.. 84. 4:08:42 PM COURT: pre hearing briefs succinct outline of statement 48 hours prior to the hearing and you have to serve it on all parties 85. 4:08:53 PM PLAINTIFF: Is that for Motions?

86. 4:08:54 PM COURT: Thats for Motions, because MOTIONS arent generally required for briefs to be filed, so we go by the rules for other- ahh ahh other matters to be settled; listen your wasting your time you have allotted for your arguments so present your arguments. 87. 4:09:11 COURT: I do not want your brief, I do not want a pre-trial brief, I do not want a post trial brief, I wana hear your arguments and I wana hear them now 88. 4:09:18 Andre Murray OK So if I understand you correctly, you are stating that the Rules of Court do not stop me from submitting a pre trial brief and you are actually applying rules of Court that do not apply to Motions, is that correct?

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89. 90.

4:09:29 PM COURT: Yeah thats correct so get onOK 4:09:32 PM Plaintiff: I have a right to be heard and.

91. 4:09:33 PM COURT interrupting: YepYep you have a right to be heard 92. 4:09:36 Plaintiff: and for the Court to accept..

93. 4:09:39 PM COURT interrupting yelling: Mr. Mr. Murray if you want me to take a pre trial brief or a post trial brief into account you file it so I have it read before I hear the matter now that is my ruling that is my discretion do your argument now. 94. 4:09:54 Plaintiff: Ok regarding the post trial brief the reason I was calling it a post trial brief is because I understand that by submitting it right now you do not have time to read it before the hearing so this gives you an opportunity to read it after the fact. 95. 4:10:07 PM COURT interrupting: I am not going to read it after the fact I am giving you your decision today I dont need to. 96. 4:10:12 pm Plaintiff: Is your discretionary decision based in law Is there some law, in which you are basing this on, some rule of law? 97. 4:10:24 PM COURT: Present your argument, I am not speaking about it again, I gave you my ruling.. 98. 4:10:33 pm Plaintiff: For the record, I want the Court to note my objection, regarding the Post Hearing Brief 99. 4:10:36 PM COURT interrupting: Your your objection is noted, you said it 6 times, I dont need to hear it again, give me your presentation now. 100. 4:11:40 pm Court: Stop talking for a minute Mr. Rodgers is not going to speak I can let him seat at the table beside his wife if I choose to. Now she is not going to speak now if she needs to present anything Mrs. Rodgers will be doing it. Now, get on with your presentation now

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101. 4:42:09 PLAINTIFF: each time that I have to process service these documents myself I have to actually take time out off my own work. 102. 4:42:14 PM COURT interrupting: Mr. Murray your time is up, youve been repeating yourself over and over again.if youve got something new to add thats fine but I dont need to hear the same comments over and over again 103. 4:42:27 PLAINTIFF: I dont think Ive yet said that each time that I process serve documents that I have to take time take time off my own occupation to do this and it is inappropriate to do this.. 104. 4:42:33 PM COURT interrupting: Its your time is up could you sit down please Mrs Rodgers do you have any comments.. 105. 4:46:57 PM COURT as Trina has finished: With respect to your MOTION here today for costs 106. 4:47:00 PLAINTIFF: May I rebut

107. 4:47:01 PM COURT: No I gave you my ruling. Stop it! Im going to give you the rest of the ruling. 108. 4:47:05 PLAINTIFF: Usually the procedure though allows for a rebuttal 109. 4:47:07 PM COURT interrupting yelling: No there is no rebuttal! I gave you I gaet . SIT.. SIT DOWN.. SIT DOWN speaking to the Sheriff: will you go over and sit beside him please 110. now. 4:47:19 PM COURT: Dont get up again Im giving my decision

111. 4:47:40 PM COURT: There is absolutely nothing in your affidavits or in your requests in your MOTION that would allow me to Order costs against Mrs Rodgers. The material you filed the Affidavits for the most part are rambling, their incoherent, their frivolous, they are indecipherable and they dont amount to anything in the end.

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112. 4:48:04 PM COURT: I have no Jurisdiction on the basis of the kind of information that you have filed to give costs against Mrs Rodgers I have no Jurisdiction to Order Substituted Service as Mrs Rodgers indicated she wouldnt be hear today if she hadnt been served. 113. 4:48:23 PM COURT: And I wouldnt open the door for people I dont know either. 114. 4:48:27 PM COURT: So if you want to Serve her with a process Server you hire a professional Process Serving Company. Otherwise send them according to the other parts of rules 18.00 you can do it by certified mail you can do it by registered mail and I dont have to accept your anecdotal evidence that you went to the Post Office and someone told you that they wouldnt accept service. Thats hearsay I dont accept it and it is not reliable. 115. 4:48:54 PM COURT: In fact almost everything you have in your Affidavits and those of your two so called Process Servers is suspect I dont accept it. 116. 4:49:06 PM COURT: Its anecdotal and its frivolous and its meaningless and for those reasons I dismiss your motion for costs I dismiss your Motion for a Order of Substituted Service and I Order you to pay $500 costs forthwith to Mrs Rodgers. Thank you very much. 117. 118. 119. 4:49:25 PM Plaintiff: This is outrageous.! ALL RISE ! The Learned Trial Judge did commit reversible error, by refusing to

hear the INTENDED APPELLANT because of, but not limited to the following: The Learned Trial Judge refused to accept the prepared Post Hearing Brief, (part of the INTENDED APPELLANTs presentation to the Court) which included the authorities and case law which reinforced the INTENDED APPELLANTs legal position in requesting the relief sought. Because of the obvious time constraints at the hearing the INTENDED APPELLANT could not read the entire Post Hearing Brief to the Court, without considering this essential component of the INTENDED APPELLANTs argument the Learned Trial Judge

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did not fully hear the INTENDED APPELLANT, therefore the INTENDED APPELLANTs essential Right to be Heard was violated. The Learned Trial Judge refused to allow the INTENDED APPELLANT the opportunity to rebut what was stated by the INTENDED RESPONDENT. The INTENDED APPELLANT should have been provided an opportunity to address the statement made by INTENDED RESPONDENT as a right to be heard on the matter, further the INTENDED APPELLANT was threatened with Sheriff intervention, to reinforce Court Refusal to hear INTENDED APPELLANT. The Learned Trial Judge repeatedly interrupted and stopped the INTENDED APPELLANT from expressing the idea and information the INTENDED APPELLANT believed was necessary to prove the INTENDED APPELLANT cause. The Court should consider the facts, evidence, argument and authorities before rendering a decision. To not allow the INTENDED APPELLANT to finish a though or statement on the record is a violation of the most basic right to be heard. How can one be heard when they are being interrupted.

Bias Rule as Applicable 120. The Learned Trial Judge failed to comprehend the facts and

arguments as presented by the Appellant and instead pursued only the assertions as presented by the Respondent, this subject predisposition of the Learned Trial Judge toward a particular result, is such that a reasonable apprehension of bias is raised. The Appellant contends a reasonable apprehension of bias by the fact that the learned Trial Judge only accepted and or allowed argument and evidence which favored the Defendants position, further the learned Trial Judge made questionable opening remarks during preliminary to the effect that the Learned Trial judge had pre-determined the outcome as a decision was promised at the end of the scheduled one hour hearing; furthermore obviously erroneous statements are found within the Learned Trial judge decision which reasonably must be based on incorrect

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information, contrary to the facts of the case. The Court did refuse to accept corroborative Affidavit evidence filed by the Intended Appellant and instead relied on Affidavit Evidence of the Intended Respondent which was not diametrical to the INTENDED APPELLANTS cause, therefore confirmed/admitted to the INTENDED APPELLANTS claims and behavior to which the INTENDED APPELLANT was seeking relief. 121.

This second rule states that no one ought to be judge in his or her

case, this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision, additionally, decision-makers must act without bias in all procedures connected with the making of a decision. A decision-maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before him or her without favouring one party over another. 122.

Even where no actual bias exists, decision-makers should be careful to

avoid the appearance of bias. When 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 (favoring the INTENDED RESPONDENTs position or cause), is such that a reasonable apprehension of bias is raised. 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 Defendants position, further the learned Trial Judge made obviously erroneous statements within the decision

33

which reasonably must be based on incorrect information, contrary to the facts of the case. 123. In R. v. S. (R.D.), [1997] 3 S.C.R. 484, the header of the Courts

decision sums up the case before the supreme Court and provide relevant insight into the reasonable apprehension of bias displayed by the actions and assertions of the Learned Trial Judge, the relevant section of R. v. S. (R.D.), [1997] 3 S.C.R. 484 is provided in the following: (2) Reasonable Apprehension of Bias Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The courts should be held to the highest standards of impartiality. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. The trial will be rendered unfair if the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer. Judges must be particularly sensitive to the need not only to be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin. If actual or apprehended bias arises from a judges words or conduct, then the judge has exceeded his or her jurisdiction. This excess of jurisdiction can be remedied by an application to the presiding judge for disqualification if the proceedings are still underway, or by appellate review of the judges decision. A reasonable apprehension of bias, if it arises, colours the entire trial proceedings and cannot be cured by the correctness of the subsequent decision. The mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from the judges other words or conduct. However, if the judges words or conduct, viewed in context, do not give rise to a reasonable apprehension of bias, the findings of the judge will not be tainted, no matter how troubling the impugned words or actions may be.

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The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. The test applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic. What the Judge actually intended by the impugned statements is irrelevant conjecture. Given the concern for both the fairness and the appearance of fairness of the trial, the absence of evidence to support the judgment is an irreparable defect. 124. The Learned Trial Judge should be held to the highest standards of

impartiality. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. The trial will be rendered unfair, such as in this case, because the words and actions of the Learned Trial Judge gave rise to a reasonable apprehension of bias to the informed and reasonable observer. Judges must be particularly sensitive to the need not only to be fair but also to appear to all reasonable observers to be fair, in this case the Learned Trial Judge has failed. Because of actual or

35

apprehended bias, which did arise from a judges words and or conduct, then the judge has exceeded his or her jurisdiction. 125.

BIAS is defined by Black's Law Dictionary (8th ed. 2004), at page 483 as follows: bias,n. Inclination; prejudice; predilection

126.

The basic interests of justice require that the appellate courts,

notwithstanding their deferential standard of review in examining factual determinations made by lower courts, retain some scope to review that determination given the serious and sensitive issues raised by an allegation of bias. Impartiality can be described as a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to particular issues. Whether a decision-maker is impartial depends on whether the impugned conduct gives rise to a reasonable apprehension of bias. Actual bias need not be established because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind. 127.

A fair trial is one that is based on the law, the outcome of which is

determined by the evidence, free of bias, real or apprehended. Did the Motions judge here reach her decision on the evidence presented at the hearing, considering all the relevant argument and presented authorities or did she rely on something else? The INTENDED APPELLANT asserts that the Conduct of the Learned Trial, when considered in its entirety, did raise reasonable apprehension of bias.

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128.

The Learned Trial judge apparently had already decided to give a oral

decision that day, (bias - predisposition towards a particular outcome), without having yet heard the parties. At 4:06:37 pm the JUDGE: stated as follows: All right Mr. Murray you have until 4:30 you were given this time expedited time ahhh on the basis of a half hour then I will need the next fifteen minutes to give my decision which I will give today. Again at 4:07:37 PM COURT: Just get on with itI dont need it I am going to give you my decision today and again at 4:10:07 PM COURT interrupting: I am not going to read it after the fact I am giving you your decision today I dont need to. These comments raising a reasonable apprehension of bias, and denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to particular issues, such as the Court had determined that a Decision would be rendered that day, regardless of what was said and the Court would not be persuaded otherwise. 129.

We should consider whether the trial judge in her reasons, properly

instructed herself on the evidence or was an error of law committed by her. The second, and somewhat intertwined question, is whether her comments below could cause a reasonable observer to apprehend bias. The offending comments in the statement are: 130.

The Learned Trial judge displayed reasonable apprehension of bias by

determining, without having read the INTENDED APPELLANTs Post Hearing Brief, I dont need it I am going to give you my decision today 131.

The Learned Trial judge displayed reasonable apprehension of bias by

not allowing INTENDED APPELLANT to rebut statement made by the

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Defendant 4:46:57 PM COURT as Trina has finished: With respect to your MOTION here today for costs 4:47:00 PLAINTIFF: May I rebut 4:47:01 PM COURT: No I gave you my ruling. Stop it! Im going to give you the rest of the ruling. 4:47:05 PLAINTIFF: Usually the procedure though allows for a rebuttal 4:47:07 PM COURT interrupting yelling: No there is no rebuttal! I gave you I gaet . SIT.. SIT DOWN.. SIT DOWN speaking to the Sheriff: will you go over and sit beside him please 132.

In addition to not being based on the evidence, the trial judges

comments are being challenged as giving rise to a reasonable apprehension of bias: 4:47:40 PM COURT: There is absolutely nothing in your affidavits or in your requests in your MOTION that would allow me to Order costs against Mrs Rodgers. The material you filed the Affidavits for the most part are rambling, their incoherent, their frivolous, they are indecipherable and they dont amount to anything in the end. 4:48:04 PM COURT: I have no Jurisdiction on the basis of the kind of information that you have filed to give costs against Mrs Rodgers I have no Jurisdiction to Order Substituted Service as Mrs Rodgers indicated she wouldnt be hear today if she hadnt been served. 4:48:23 PM COURT: And I wouldnt open the door for people I dont know either. 4:48:27 PM COURT: I dont have to accept your anecdotal evidence that you went to the Post Office and someone told you that they wouldnt accept service. Thats hearsay I dont accept it and it is not reliable. 4:48:54 PM COURT: In fact almost everything you have in your Affidavits and those of your two so called Process Servers is suspect I dont accept it. 4:49:06 PM COURT: Its anecdotal and its frivolous and its meaningless and for those reasons I dismiss your motion for costs I dismiss your Motion for a Order of Substituted Service and I Order you

38

to pay $500 costs forthwith to Mrs Rodgers. Thank you very much. The Learned Trial judge dismissed three corroborative affidavits, further corroborated by INTENDED RESPONDENTs own Affidavit testimony, claiming the Affidavit material was frivolous and its meaningless. 133. follows: FRIVOLOUS frivolous, adj. Lacking a legal basis or legal merit; not serious; not reasonably purposeful 134. Meaningless is defined by Webster dictionary as: having no meaning; especially : lacking any significance 135. Black's Law Dictionary (8th ed. 2004), Page 1969 defines frivolous as

Anecdotal is defined by Webster dictionary as: based on or consisting of reports or observations of usually unscientific observers <anecdotal evidence>

136.

The fact that the Learned Trial judge dismissed three corroborative

affidavits, of which testimony included, Affiants witnessing each other, doing acts which substantiated the efforts to which the INTENDED APPLICANT had gone, in attempting to serve the INTENDED RESPONDENT (the reason for the subject motion) and further that Affidavit testimony was corroborated by INTENDED RESPONDENTs own Affidavit testimony, after all this the Learned Trial Judge was claiming the Affidavit material was frivolous and its meaningless. Or put another way, how could corroborative Affidavit material have no meaning, be lacking a legal basis and or not be reasonably purposeful, when those very same affidavit were filed to support a motion because of exactly the type of behaviour described in those same

39

affidavits, this is seriously questionable and lends itself to reasonable apprehension of bias. 137.

Affidavit testimony in general is considered anecdotal or based on

casual observations or indications rather than rigorous or scientific analysis, remember an affidavit is a statement of fact sworn under oath, a first person account of the affiants interpretation of an event. To dismiss corroborative Affidavit testimony, based of a generality which permeates all Affidavit material is seriously questionable and lends itself to reasonable apprehension of bias 138.

Reasonable apprehension of bias, that which has arisen in this matter,

colours the entire trial proceedings and cannot be cured by the correctness of the subsequent decision, in this case the decision was inherently flawed. The mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from the judges other words or conduct. 139.

Reasonable apprehension of bias of the Trial Judge may be summed

up as this; The Learned Trial Judge seemed to be determined or predisposed to a particular result, which was to: a. without reason, render a decision on the day of the hearing, despite

being requested to accept a Post Hearing Brief, which was part of the INTENDED APPLICANT prepared presentation for consideration, violating the INTENDED APPLICANTs right to be heard.

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b.

favor the INTENDED RESPONDENTS position, despite lack of

evidence, argument and legal reasoning for same. The Court even commented, that she (the Court) would not open the door to strangers either, despite that fact that the INTENDED RESPONDENT in fact knew that the INTENDED APPLICANT was at the door attempting to deliver court documents (admitted by Affidavit).

c.

favor the INTENDED RESPONDENTS position, The Court

unreasonable dismissed the INTENDED APPLICANTs uncontested corroborative affidavit material, which was again corroborated by the INTENDED RESPONDENTs own Affidavit evidence. The INTENDED RESPONDENT actually admitted by affidavit that she purposefully did not pick up registered mail sent by the INTENDED APPLICANT and further she had called the Police when the INTENDED APPLICANT attempted to simply serve Court documents upon her. 140. d.

Further conduct which demonstrates Reasonable apprehension of bias: The Learned Trial Judge refused actual uncontested sworn testimony

by affidavit and exhibits, with no reasonable grounds given and no disagreement of their content; e. The Learned Trial Judge claimed INTENDED APPLELLANT

submissions as difficult to read or understand without asking INTENDED APPLELLANT to explain or clarify anything, and in spite of INTENDED APPLELLANT comprehensive and easily understandable oral argument. The Learned Trial Judge claim of lack of understanding and comments regarding same were unreasonable;

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f.

The Learned Trial Judge called INTENDED APPLELLANT

uncontested on point evidence anecdotal and in doing so she was dismissing INTENDED APPLELLANT corroborative affidavits, yet she accepted INTENDED RESPONDENTs totally anecdotal and unsubstantiated claims, which were for the most part irrelevant to the matter before the Court, being a Motion for Orders of Substituted Service and cost for aberrant conduct and behavior which was endangering the INTENDED APPLELLANT health and well being; g. The Learned Trial Judge clearly stated to the INTENDED

APPLELLANT, that the Court had no jurisdiction to award INTENDED APPLELLANT costs and then promptly contradicted herself by awarding costs against INTENDED APPLELLANT (INTENDED RESPONDENT did not even ask for costs), this is contradictory and hypocritical demonstrating reasonable apprehension of bias and contemptuous conduct towards INTENDED APPELLANT; h. The Learned Trial Judge told INTENDED APPELLANT there were

no grounds for substituted service, when in fact there was, further this would have been a very simple resolution, the Court could have asked INTENDED RESPONDENT for an undertaking to simply accept registered mail, instead the Court instructed INTENDED APPELLANT to hire a professional process server, where there is no provision necessitating this in the Rules of Court or necessity for it, if the INTENDED RESPONDENT would simply accept Service (even through a closed locked door) or agreed to the suggested reasonable substituted Service method forward for consideration. i. The Learned Trial Judge refused to allow INTENDED APPELLANT

to rebut statements made at the hearing by INTENDED RESPONDENT,

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refusal to allow a rebuttal was blatantly wrong, a violation of the INTENDED APPELLANTs right to be heard and there is no excuse for this whatsoever. Error in Law The Intended Appellant asserts that the trial judge made a number of

141.

material errors in law while arriving at Decision. The learned Trial Judge erred in law, in irregularly applying the Courts Discretion. Moreover Intended Appellant contends, that The Learned Trial judge did display abuse of discretion, which is an adjudicator's failure to exercise sound, reasonable, legal decision-making. Learned Trial Judge instead rendered a decision which is unsupported by the evidence and clearly based on erroneous findings of material fact. 142.

Learned trial judge erred in law in not keeping with the general

direction as found expressed in the New Brunswick Rules of court Rule 1.03 (2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 143.

Learned Trial Judge did error in law in misapplication of the Rules of

Court, to prejudicially Bar the Intended Appellant from submitting a Brief for the Courts Consideration, which provided the Case law Authorities and complete Argument, buttressing the Intended Appellant claims for relief, which is am error in law. 144. follows:

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

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abuse of discretion. 1. An adjudicator's failure to exercise sound, reasonable, and legal decision-making. 2. An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence. 145. The learned Trial Judge erred in law, in irregularly applying the

Courts Discretion. The INTENDED APPELLANT contends, The Learned Trial judge did display Abuse of Discretion. The Learned Trial Judge instead rendered a decision which is unsupported by the evidence and clearly on a erroneous finding of a material fact. 146.

In Matondo v. Canada (Minister of Citizenship and Immigration),

2005 FC 416 (CanLII) HARRINGTON J. stated at paragraph 1 as follows: [1] To be "capricious" is to be so irregular as to appear to be ungoverned by law 147. The Appellant contends the Learned Trial Judges decision lacked the

degree of justification, transparency and intelligibility required by the unreasonableness standard of review and considered a unreasonable decision. 148.

Reference: In Canada Revenue Agency v. Telfer, 2009 FCA 23

(CanLII), Justice EVANS J.A, reviewed the unreasonableness standard of review, from Paragraph 29 through to 42. 149.

Reference: In Baker v. Canada (Minister of Citizenship and

Immigration), [1999] 2 SCR 817 Justice Iacobucci J., stated regarding exercise

44

of discretion being unreasonable from Paragraph 57 through to and including paragraph 68: An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. Questions of law 150. In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235,

in the header of the decision, the Supreme Court did provide a succinct view on the Courts standard of review. An appeal is not a re-trial of a case, consideration must be given to the standard of review applicable to questions that arise on appeal. The standard of review on pure questions of law is one of correctness, Appellate courts require a broad scope of review with respect to matters of law, because their primary role is to delineate and refine legal rules and ensure their universal application. Action taken under statutory authority is valid only if it is within the scope of that authority, if it was not, the Court did commit reversible error. 151.

The Learned Trial Judge refused to apply the Rules of Court and the

Courts discretion to grant remedy to the INTENDED APPELLANT. The Court actually claimed not to have the jurisdiction to Order cost against the egregious conduct of the INTENDED RESPONDENT, further the Court claimed to not have the Jurisdiction to Order Substituted Service upon the INTENDED RESPONDENT (which is clearly not the case), the Court dismissed the INTENDED APPELLANTs corroborative uncontested Affidavit evidence,

45

refused to accept an essential Post Hearing Brief but paradoxically, the Court used the Court discretion to Order cost against the INTENDED APPELLANT, for filing the subject Motion, despite the INTENDED RESPONDENT not filing any brief (no work equals no costs), and filing unnecessary affidavit material (which the Court scolded the INTENDED APPELLANT for having to read). 152.

Manifest Abuse of Discretion was demonstrated when the Court

asserted a Discretionary Decision unsupported by the evidence choosing instead to arrive at erroneous finding of a material facts, the INTENDED APPELLANT claims that the Learned Trail Judge has demonstrated Manifest Abuse of Discretion. In these circumstances, as expressed in this Brief, it would be a disservice to the administration of justice to allow this decision to stand. 153.

The Leaned Trail Judge did demonstrate Omissions in reason for

judgment, as expressed throughout this submission, which amount to material error because 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.

Findings of Fact 154. In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235, in the header of the decision, the Supreme Court did provide a succinct view on the Courts standard of review. The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a palpable and overriding error. A palpable error is one that is plainly seen. The standard of review for inferences of fact is not to verify that the inference can

46

reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard. Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. 155.

The factual findings made by the Learned Trial Judge should not be

accepted, because Intended Appellant has demonstrated throughout this Brief, 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 INTENDED APPELLANT. The Court did make palpable and overriding errors throughout the impugned decision. 156. Learned Trial Judge, subjectively, therefore demonstrated that

Learned Trial Judge did not appreciate the argument advanced by INTENDED APPELLANT, consequently failed or refused to understand the legal principles relied on, in support of the INTENDED APPELLANTs argument, further, the Learned Trial Judge failed to review and understand the relevant evidence. The jurisprudence of law has recognized that a COURT OF APPEAL would interfere with the exercise of the discretion of a trial judge when "the trial judge was manifestly wrong" or "substantial injustice" or "serious injustice would result", which the Plaintiff claims is evident in this case.

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157. are:

The Courts erroneous findings of fact, regarding evasion of Service

a. The INTENDED APPELLANT did have to return several times, before being successful at Process Service. b. The INTENDED RESPONDENT would not answer the door, or even verbally indicate acceptance of Court Documents, only when the INTENDED APPELLANT actually visually saw the INTENDED RESPONDENT could the documents be left, before an Affidavit of Service was prepared. c. INTENDED RESPONDENT would not pick up Registered Mail, though the INTENDED RESPONDENT was aware of that the INTENDED APPELLANT was to attempting to serve important Court Documents. It has been documented through the Affidavits of both INTENDED APPELLANT and INTENDED RESPONDENT, that, INTENDED RESPONDENT actually refused to retrieve Registered Canada Post mail, that was clearly marked from INTENDED APPELLANT to the INTEDED RESPONDENT. d. INTENDED RESPONDENT would not accept Document Service from other Process Servers (even though this demand was made). The INTENDED RESPONDENT strategically drove away from the residence between service attempts of another process Server (this was witnessed by the INTENDED APPELLANT). e. These accounts of evasion of Service have been provide by corroborative uncontested Affidavit testimony, and further corroborated by the INTENDED RESPONDENTs own Affidavit material submitted to the Court. 158. Other Erroneous Facts which were accepted by the Court:

f. Just because the INTENDED RESPONDENT appears at a Court hearing, does not mean the INTENDED RESPONDENT was Served Court documents, according to the Rules of Court (which may be challenged at a later date). g. Because Court Documents were left in a mailbox by the mailman and retrieved by the INTENDED RESPONDENT does not mean that constitutes service, nor does that mean service was effective and beyond challenge at a later date. Documents left in the mailbox is not considered Served, unless a copy was left with an occupant of the same House, (served) the day before,

48

or this mail delivery method is consented to by the respondent (which was not the case here). h. INTENDED RESPONDENT admitted to have called the Police, unreasonably when the INTENDED APPELLANT was attempting to serve Court Documents. The Court accepted this unreasonable behaviour. COSTS 159. Intended Appellant (as Plaintiff) provided abundant Affidavit Evidence combined with substantiation by argument that Costs should be awarded to the Intended Appellant. It follows that lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, lay litigants, by foregoing remunerative activity, incurred an opportunity cost. It is self evident the INTENDED APPELLANT did expend considerable time and energy preparing for these Hearings. 160.

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 Plaintiff is manifestly without merit, exercised contrary to the facts of the case, therefore excessively disproportionate, therefore, unbalanced substantial injustice and serious injustice would result if the Cost award (as in this matter) is allowed to stand. 161.

The Learned Trial Judge did exercise discretion that may be

categorized as Manifest Abuse of Discretion, when the Courts decision is unsupported by the evidence, clearly on a erroneous finding of a material fact is being arbitrarily exercised or capriciously as INTENDED APPELLANT contends occurred in this case; INTENDED APPELLANT claims in this matter

49

that the Learned Trail Judge has in this case demonstrated Manifest Abuse of Discretion, in the inappropriately excessive Cost awarded the INTENDED RESPONDENT, moreover the unjust awarding of undeserving cost, in the amount awarded in favor of the INTENDED RESPONDENT in these subject circumstances; further, INTENDED APPELLANT contends, it would be a disservice to the administration of justice to allow this Award of Costs to stand. "To be capricious is to be so irregular as to appear to be ungoverned by law." 162.

The INTENDED APPELANT provided the Court with the subject

Motion, three corroborative Affidavits, a carefully researched and prepared Post Hearing Brief (which the Court refused to accept), and a thorough Oral presentation. INTENDED APPELANT asked for cost of the Motion because, it was the continuing unreasonable conduct of INTENDED RESPONDENT, which necessitated such a Motion. The continuing conduct of the INTENDED RESPONDENT was causing considerably more time and expense to the INTENDED APPELLANT, further this action of unreasonably calling the Fredericton Police Force was endangering the health and well being of the INTENDED APPELLANT. (remember the cause of Action that this Motion stems from is because the INTENDED RESPONDENT is alleged to have called the Fredericton Police Force and provided negligent representation, which caused the INTENDED APPELLANT to be arrested and injured in the process on two different occasion, both caused by a caller directing the Fredericton Police Force to the INTENDED APPELLANT). 163.

The INTENDED RESPONDENT provided the Court with an Affidavit

which was mostly irrelevant, (the relevant portions of the subject Affidavit

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corroborated the accounts forwarded by the INTENDED APPELLANT), further the exhibits attached the INTENDED RESPONDENTS Affidavit were irrelevant, unnecessary and not even referred to at the hearing (which resulted in the Court unreasonably condemning the INTENDED APPELLANT for including them), the oral presentation was short and mostly irrelevant to the proceedings, finally INTENDED RESPONDENT did not even request costs. 164.

Despite all the above, the Learned Trial Judge awarded costs of $500

to the INTENDED RESPONDENT, and dismissed the INTENDED APPELLANT Motion. This discretionary Order of costs is capricious, to be capricious is to be so irregular as to appear to be ungoverned by law, in this case it is appears that the costs Order is ungoverned by law. PART V
62.03 Leave to Appeal

Question for the Court to answer: Should the Court, pursuant to Rule 62.03 grant Leave to Appeal to the INTENDED APPELLANT under these circumstance described in this Brief? 165.

When considering whether to grant Leave to Appeal or not the Court


62.03 Leave to Appeal (1) Where a party seeks to appeal from (a) an interlocutory order or decision, (b) an order or decision as to costs only, or (c) an order made with the consent of the parties, (4) In considering whether or not to grant leave to appeal,

consider the following Rules of Court:

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the judge hearing the motion may consider the following: (a) whether there is a conflicting decision by another judge or court upon a question involved in the proposed appeal; (b) whether he or she doubts the correctness of the order or decision in question; or (c) whether he or she considers that the proposed appeal involves matters of sufficient importance.

166.

In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.)

Honorable Justice J. ERNEST DRAPEAU, J.A. offered the following, when considering whether to grant leave to appeal from a interlocutory Order or Decision: [15] In Breen v. MacIntosh, [2001] N.B.J. No. 226 (C.A.), at para. 6, I expressed the view that satisfaction of one or more of the conditions found in Rule 62.03(4) did not, by itself, compel the issuance of an order granting leave to appeal. I went on to add that Rule 62.03(4) vests in the judge hearing the motion a residual discretion to deny leave even where one or more of the preconditions have been satisfied. I remain firmly committed to that view.

[20]

Rule 62.03(4) cannot be interpreted in isolation. As noted, its meaning and effect must be ascertained having regard to the Rules of Court as a whole. Rules 1.03(2) and 62.21(6) play an important role in the interpretative exercise required here. Rule 1.03(2) directs courts to liberally construe the rules to secure the just, least expensive and most expeditious determination of every proceeding on its merits. Rule 62.21(6) provides that [a]n interlocutory order or decision from which there has been no appeal shall not operate to prevent the Court of Appeal from rendering any decision or making any order. Factors such as the relative importance of the interlocutory order or decision in the litigation process and the repercussions of granting leave come into play in the exercise of that residual discretion. As Cameron J.A. noted in Business

[23]

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Development Bank of Canada v. White Ottenheimer & Baker, at para. 2, the matter always involves the weighing of interference, by the appeal process, with the timely administration of justice against the interest of the appellant in having the matter resolved immediately. [24] Justice McLellans decision appears to be quite significant in terms of its likely influence on the conduct of the action in the case at hand. As well, the action is not entered for trial; in fact, the discovery process is not completed. Finally, there is no evidence that an order granting leave to appeal might cause prejudice of a serious nature to any party. The cumulative effect of these considerations leads me to conclude that leave should be granted pursuant to Rule 62.03(4)(b).

167.

The two portion of the Rule 62.03(4) that the INTENDED

APPELLANT will focus on is (b) an (c):

168.

First, Rule 62.03(4)(b), whether The Court doubts the correctness of the

Order or decision in question. To avoid redundancy the INTENDED APPELLANT would like the Court to consider the aforementioned reasons, provided through this Brief. 169.

Secondly when considering section Rule 62.03(4)(c) whether the Court

considers that the proposed appeal involves matters of sufficient importance.

170.

In Lang v. Tran, 2006 CanLII 32627 (ON SC), Justice CAVARZAN

J., addressed the following regarding importance of the issues at paragraph 11 as: [11] With respect to the factor involving the importance of the issues, I note that the rule does not refer to the importance of the issues to the parties. No doubt, when matters require resolution by proceeding to trial the issues are important to the parties. In my view, however, importance of the issues comprehends matters of general

53

importance affecting the rights of society at large, analogous to the interpretation placed by the courts on the expression matters of such importance in rule 62.02(40(b) of the Rules of Civil Procedure. See Davidson Tisdale Ltd. v. Pendrick (1997), 18 C.P.C. (4th) 131, 106 O.A.C. 241 (Gen. Div.).

171.

The importance of the issues before this Court, is public confidence

in the judiciary, which are matters of general importance affecting the rights of society at large. The public will loose confidence in the judiciary, if the impugned decision before this Court, is allowed to stand. 172. 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'), further, the learned Trial Judge did not, reasonably does not, recognize 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 Court errored in Law, errored in Fact and applied the Court discretion capriciously. These aforementioned actions must therefore have created in the mind of a reasonable, fair minded and informed person an impression of a lack of impartiality. 173.

The trial Judge has in my opinion (as a result of first hand experience)

not conducted herself in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment because of the aforementioned conduct. The learned trial Judge has made inappropriate comments, improper remarks and unjustified reprimands, which has undermined the appearance of impartiality and demonstrated a reasonable apprehension of bias, furthermore, in arriving at the impugned decision, the

54

Court could not have been reasonably based that decision on the argument presented by the parties, or submitted by affidavit evidence. 174.

The learned trial Judge has not exhibited high standards of conduct, so

as to reinforce public confidence in law, by demonstrating reasonable apprehension of bias, deciding that the Motion and supporting materials, would not be entirely considered, as, Madame Justice was seen to only permit/allow for review of certain predetermined criteria, which was therefore, being advanced by the learned Trial Judge. 175.

The Learned Trial Judge should have conducted herself in a way that

will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment, unfortunately for all of us she has not. The Learned Trial Judge's conduct is likely to diminish respect for the judiciary in the minds of the community and myself, moreover, has created a perception which is likely to lessen respect for judges or the judiciary as a whole. This impugned conduct must reflect upon the central components of the judges ability to do the job. Please see J. Shaman et al, Judicial Conduct and Ethics (2d,
1995), as Shaman put it,...the ultimate standard for judicial conduct must be

conduct which constantly reaffirms fitness for the high responsibilities of judicial office. The judge should exhibit respect for the law, and generally avoid the appearance of impropriety.

176.

Without that confidence the system cannot command the respect and

acceptance that are essential to its effective operation. The trial Judges actions affect not only myself, but public confidence in the judiciary generally, and such matters bring the administration of justice into disrepute, is damaging to

55

the judge, the judiciary as a whole and the good administration of justice. Parties are entitled to fair proceeding and procedural correctness which is in the interest of justice, please note Justice is defined by Blacks Dictionary as a fair application of the law. The duty of the court is to ensure, as much as is possible, that justice is done, in the matter before the Court the Courts it was not. PART VI Cost Orders in favor of self-represented litigants 177. Rules of Court Rule 59.01 is provided below: 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. (2) Nothing in this rule shall be construed so as to interfere with the authority of the court (a) to fix the costs of a proceeding, or a step in a proceeding, with or without reference to a tariff, instead of requiring assessment of the costs, (b) to allow or refuse costs in respect of a particular issue or part of a proceeding, (c) to order costs to be assessed on a solicitor and client basis, or (d) where parties are entitled to costs from each other, to order set-off of the costs. 178. In McNichol v. Co-operators General Insurance Company, 2006

NBCA 54 (CanLII), Chief Justice J. ERNEST DRAPEAU, addresses cost orders in favor of self-represented Litigants. REFERENCE: (Please see paragraph 41 through to and including paragraph 45): [42] 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

56

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. Please see an excellent discussion in M.M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, ON: Carswell, 2000) at 209.15 entitled "Party in Person". Please also see: Fong v. Chan 1999 CanLII 2052 (ON C.A.), (1999), 46 O.R. (3d) 330 (Ont. C.A.). Please See, as well:, Skidmore v. Blackmore 1995 CanLII 1537 (BC C.A.), (1995), 2 B.C.L.R. (3d) 201 (C.A.); Huet v. Lynch 2001 ABCA 37 (CanLII), (2001), 91 Alta. L.R. (3d) 1 (C.A.); Dechant v. Stevens 2001 ABCA 39 (CanLII), (2001), 89 Alta. L.R. (3d) 246 (C.A.) and Collins v. Collins 1999 ABQB 707 (CanLII), (1999), 72 Alta. L.R. (3d) 300 (Q.B.). 179. 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. 180.

INTENDED APPELLANT offers 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

57

Rule 59.01 in a manner favorable to the self-represented INTENDED APPELLANT 181.

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 INTENDED RESPONDENT to pay costs throughout, that, which may be similarly fixed at $5,000, in addition to all reasonable disbursements. 182.

In Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) Justice

Robert J. Sharpe J.A stated the opinion of the Court regarding the right of selfrepresented lay litigants to recover Costs. (REFERENCE: from paragraph 15 though to and including paragraph 27.) [20] .Cumming J.A. pointed out that modern cost rules reflected a variety of purposes. While indemnity remained one important element, costs were also ordered or withheld as a means of controlling behaviour by discouraging frivolous suits or meritorious defences, and as a way of sanctioning unnecessary steps in litigation, as well as misconduct by litigants or their counsel. Modern costs rules also were designed to promote and encourage settlements. In Cumming J.A.s view, it was important for the court to have at its disposal full costs sanctions, whether litigants were represented or unrepresented. Moreover, the refusal to allow self-represented costs on indemnity grounds was difficult to justify as the time is money rationale applies every bit as much to the lay litigant as to the self-represented lawyer. Cumming J.A. noted that any difficulty in measuring the amount to which the lay litigant is entitled could be answered in British Columbia by strict application of the tariff. Finally, it was held that the court was competent to effect this change in the common law as (at 342) the matter of costs is a question essentially within the discretion of the court, it bears directly on matters of practice, and it is something on which this court is well situated to rule.

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183.

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 INTENDED APPELLANT before this Court. It is abundantly clear that the self represented INTENDED APPELLANT in this matter devoted much time to present interesting and thought-provoking legal argument ordinarily expected of a lawyer, further is evidenced by the quality of the material presented for consideration to this Honorable Court. 184.

As stated above in 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. All three purposes are fostered by allowing the trial judge discretion to award costs to self-represented litigants. 185. 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. 186.

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 when lay litigants

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incurred an opportunity cost by foregoing their usual remunerative activity; therefore 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. 187.

Rules of Court Rule 59.02 is provided below: 59.02 Costs of a Proceeding In fixing costs, the court may consider (a) the amount claimed and the amount recovered, (b) the apportionment of liability, (c) the complexity of the proceeding, (d) the importance of the issues, (e) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding, (f) the manner in which the proceeding was conducted, (g) any step in the proceeding which was improper, vexatious, prolix or unnecessary, (h) any step in the proceeding which was taken through over-caution, negligence or mistake, (i) the neglect or refusal of any party to make an admission which should have been made, (j) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended the proceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence, (k) whether two or more plaintiffs, represented by the same solicitor, initiate separate actions unnecessarily, and (l) any other matter relevant to the question of costs.

188.

In consideration for Rules of Court, Rule 59.02 Costs of a Proceeding,

the INTENDED APPELLANT would like the Court to consider granting Costs in favor of the INTENDED APPELLANT: (d) the importance of the issues,

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189.

In Lang v. Tran, 2006 CanLII 32627 (ON SC), Justice CAVARZAN

J., addressed the following regarding importance of the issues at paragraph 11 as: [11] With respect to the factor involving the importance of the issues, I note that the rule does not refer to the importance of the issues to the parties. No doubt, when matters require resolution by proceeding to trial the issues are important to the parties. In my view, however, importance of the issues comprehends matters of general importance affecting the rights of society at large, analogous to the interpretation placed by the courts on the expression matters of such importance in rule 62.02(40(b) of the Rules of Civil Procedure. See Davidson Tisdale Ltd. v. Pendrick (1997), 18 C.P.C. (4th) 131, 106 O.A.C. 241 (Gen. Div.). 190. (d) the importance of the issues. INTENDED APPELLANT has

been attempting to receive a Court Order, so that timely and effective Court Document Service, may attained through a simple Court Order for substituted Service, further that the Court renders a cost sanction against the INTENDED RESPONDENT because of the trouble, expense and aggravation cause by the INTENDED RESPONDENT behavior in what should be a simple matter of Court document Service. The actions of the INTENDED RESPONDENT are putting the INTENDED APPELLANTs health and safety at risk. The Applicant believes that matters of such importance exist that which would be considered matters of general importance affecting the rights of society at large, since this is an opportunity for the Courts to establish a remedy, such as a legal decision for those in society at large, to be able to use as a tool for their own remedy against similar litigants inappropriate behavior. 191. (i) the neglect or refusal of any party to make an admission which

should have been made. The INTENDED RESPONDENT could have

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admitted to the conduct alleged, apologized for the behavior, consented to a Order for substituted service, which would have been in the INTENDED RESPONDENTs interest as well, or made an undertaking to accept registered mail in a timely manner but instead, INTENDED RESPONDENT pursued this Course of conduct, which is further delaying a timely remedy.

192.

(h) any step in the proceeding which was taken through over-

caution, negligence or mistake, It was an honest mistake, that INTENDED APPELLANT did file the INTENDED APPELLANTs NOTICE OF MOTION FOR LEAVE TO APPEAL, Dated April 5, 2012, later than the seven day requirement by the Rules of Court, INTENDED APPELLANT first thought that proper course of conduct was to file a Notice of Appeal, which provided 30 days to file from the date of the decision, then on further research and consultation INTENDED APPELLANT, decided to file INTENDED APPELLANTs NOTICE OF MOTION FOR LEAVE TO APPEAL, Dated April 5, 2012, so that this matter may be properly heard.

193.

(e) the conduct of any party which tended to shorten or

unnecessarily lengthen the duration of the proceeding Because of the INTENDED RESPONDENTs conduct to date, the INTENDED APPELLANT was cautious about serving documents, to the INTENDED RESPONDENTs home, the INTENDED APPELLANT waited until there was a witness to observe the Court Document Service process, of the INTENDED APPELLANTs NOTICE OF MOTION FOR LEAVE TO APPEAL, Dated April 5, 2012, while witnessed by an impartial observer, the husband of the INTENDED RESPONDENT attacked the INTENDED APPELLANT without a reason.

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PART VII

the relief sought, a) That pursuant to Rule 62.26 of the Rules of Court for a stay of proceedings. b) The appellant asks that the decision be reversed. c) In the alternative, the appellant asks that the decision (or order as may be) be varied (set out the nature of the variance requested). d) In the alternative, the appellant asks that the decision (or order as may be) be set aside and that a new hearing or trial be held (or as may be). e) That the INTENDED RESPONDENT pay costs of the within Motion, f) Where the Intended Appellant applies for leave to appeal from an interlocutory order or decision The Intended Appellant will apply in the alternative for an extension of time to issue and serve a Notice of Appeal in the event that the judge hearing the motion rules that the order (or decision) is not interlocutory; g) Whereas a NOTICE OF MOTION FOR LEAVE TO APPEAL is hereby requested necessarily at this date consequentially, furthermore, that an extension of time be reasonably granted for filing and to serve the INTENDED RESPONDENT pursuant to rule 3.02 of the Rules of Court and in accordance with Rule 1.03, 2.01 and 2.02 of the Rules of Court; h) Such further and other relief as to this Honorable Court may appear just.

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Schedule A A list of authorities in the order referred to in the Submission; 1. Canadian Judicial Council Statement of Principles on Self-represented Litigants

and Accused Persons; 2. Maxim - Neminem laedit qui jure suo utitur. A person who exercises his own

rights injures no one; 3. Maxim - Bonum judex secundum aequum et bonum judicat, et aequitatem

stricto juri praefert. A good judge decides according to justice and right, and prefers equity to strict law. Co. Litt. 24; 4. Maxim - In all affairs, and principally in those which concern the administration

of justice, the rules of equity ought to be followed; 5. 6. justice; 7. The legal website duhaime.org provides the following insight into the principles Maxim - Justitia nemine neganda est. Justice is not to be denied; Maxim - Lex non deficit in justitia exibenda. The law does not fail in showing

of equity; 8. Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB C.A.) Justice

TURNBULL, J.A. page 7 through to page 8; 9. Western Surety Co. v. National Bank of Canada, 2001 NBCA 15 (CanLII) J.

ERNEST DRAPEAU, J.A.. paragraph 91; 10. 11. 19; 12. 13. 14. Agnew v. Knowlton, 2003 NBQB 454 (CanLII) paragraph 16 19): Justice is defined by Black's Law Dictionary (8th ed. 2004); K.C. v. New Brunswick (Health and Community Services), 1998 CanLII 17954 Black's Law Dictionary (8th ed. 2004) ENJOIN; LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) RIDEOUT, J. paragraph 11 to

(NB CA) ( http://canlii.ca/t/25rlz) page 3; 15. Michaud v. Robertson, 2003 NBCA 79 (CanLII) staring at page 1 through to and

including page 3;

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16.

Matondo v. Canada (Minister of Citizenship and Immigration), 2005 FC 416

(CanLII), The Court did comment on the Right to be heard at paragraph 18 and 19; 17. Moreau-Brubv. New Brunswick (Judicial Council), 2002 SCC 11 (CanLII),

[2002] 1 S.C.R. 249 paragraph 35; 18. Munn v. Rust, 2006 NBCA 87 (CanLII) Justice M.E.L. LARLEE, J.A.

paragraph 13 to through 16; 19. 20. 21. 22. R. v. S. (R.D.), [1997] 3 S.C.R. 484, the header of the Courts decision BIAS is defined by Black's Law Dictionary (8th ed. 2004); Black's Law Dictionary (8th ed. 2004) defines Abuse of Discretion; Matondo v. Canada (Minister of Citizenship and Immigration), 2005 FC 416

(CanLII) paragraph 1; 23. Canada Revenue Agency v. Telfer, 2009 FCA 23 (CanLII), Justice EVANS J.A,

reviewed the unreasonableness standard of review, from Paragraph 29 through to 42; 24. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817

Justice Iacobucci J., stated regarding exercise of discretion being unreasonable from Paragraph 57 through to and including paragraph 68; 25. 26. Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235; Maxim: Lex nemini operrtur iniquum, nemini facit injuriam. The law never

works an injury, or does a wrong; 27. 28. 29. MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.) para 13- 24; J. Shaman et al, Judicial Conduct and Ethics (2d, 1995); Lang v. Tran, 2006 CanLII 32627 (ON SC), Justice CAVARZAN J., addressed

the following regarding importance of the issues at paragraph 11; 30. McNichol v. Co-operators General Insurance Company, 2006 NBCA 54;

(CanLII), paragraph 41 through to and including paragraph 45; 31. Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) paragraph 15 though to

and including paragraph 27; 32. Lang v. Tran, 2006 CanLII 32627 (ON SC), Justice CAVARZAN J., addressed

importance of the issues at paragraph 11;

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Schedule B The text of all relevant provisions of Statutes or Regulations Rules of Court are reproduced as follows: 1.03 Interpretation (1) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Judicature Act apply to these rules. (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. (3) The arrangement of these rules and their title headings are primarily intended for convenience, but may be used to assist in their interpretation. 2.01 The Court Dispensing with Compliance The court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 2.02 Effect of Non-Compliance A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. In particular, the court shall not set aside any proceeding because it ought to have been commenced by an originating process other than the one employed. 2.04 Where No Procedure Provided In any matter of procedure not provided for by these rules or by an Act the court may, on motion, give directions. 3.02 Extension or Abridgment (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules. (2) A motion for extension of time may be made either before or after the expiration of the time prescribed. (3) Where the time prescribed by these rules relates to an appeal, only a judge of the Court of Appeal may make an order under paragraph (1). (4) Any time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by consent.

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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. (2) Nothing in this rule shall be construed so as to interfere with the authority of the court (a) to fix the costs of a proceeding, or a step in a proceeding, with or without reference to a tariff, instead of requiring assessment of the costs, (b) to allow or refuse costs in respect of a particular issue or part of a proceeding, (c) to order costs to be assessed on a solicitor and client basis, or (d) where parties are entitled to costs from each other, to order set-off of the costs. 59.02 Costs of a Proceeding In fixing costs, the court may consider (a) the amount claimed and the amount recovered, (b) the apportionment of liability, (c) the complexity of the proceeding, (d) the importance of the issues, (e) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding, (f) the manner in which the proceeding was conducted, (g) any step in the proceeding which was improper, vexatious, prolix or unnecessary, (h) any step in the proceeding which was taken through over-caution, negligence or mistake, (i) the neglect or refusal of any party to make an admission which should have been made, (j) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended the proceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence, (k) whether two or more plaintiffs, represented by the same solicitor, initiate separate actions unnecessarily, and (l) any other matter relevant to the question of costs. 62.03 Leave to Appeal (1) Where a party seeks to appeal from (a) an interlocutory order or decision,

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(b) an order or decision as to costs only, or (c) an order made with the consent of the parties, (4) In considering whether or not to grant leave to appeal, the judge hearing the motion may consider the following: (a) whether there is a conflicting decision by another judge or court upon a question involved in the proposed appeal; (b) whether he or she doubts the correctness of the order or decision in question; or (c) whether he or she considers that the proposed appeal involves matters of sufficient importance. The New Brunswick Judicature Act, RSNB 1973, c J-2 26(8) Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the Court and every judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations and liabilities existing by the common law or created by any statute, in the same manner as the same would have been recognized and given effect to by the Supreme Court, either at law or in equity, if The Judicature Act, 1909 had not been enacted. 32 Stipulations in contracts as to time or otherwise, which would not before the commencement of The Judicature Act, 1909 have been deemed in a Court of Equity to be or to have become of the essence of such contracts, shall receive in the Court the same construction and effect as they would heretofore have received in Equity. 39 Generally, in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.

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