1.

The Appellant wished to be brief in the oral presentation today regarding

this Appeal presented for the Courts review and decision. The Appellant relies on the written Submission as well as these furthered points deserving highlight

2.

With respect to reasonable apprehension of bias, the Appellant relies on

statements by Learned Trial Judge at the February 14, 2011 Hearing and also the Decision as rendered June 24, 2011. Appellant alleges these references demonstrate Learned Trial Judge advocated a particular view concerning the purposes of the Mechanic Lien Act, R.S.N.B. 1973, c. M-6, and its application, thereby demonstrated a predisposition toward a particular result such that a reasonable Apprehension of Bias is raised.

3.

The duty to act fairly includes the duty to provide procedural fairness to the

parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made a decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness, the conduct of the Court, has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. There must be circumstances from which a reasonable man would think it likely or probable that the Learned Trial Judge, would favor one side unfairly.

Evidence on Motions 4. The Court should only have considered the Affidavit evidence presented by the

Appellant; Affidavit evidence which was claimed to be provided by the (Defendant) Respondent was never served upon the (Plaintiff) Appellant according to the rules of Court, the Court should not accept same (Reference: The Plaintiffs Submission 2, paragraph 150, supported by the Evidence in Record) . Please consider the following Rules of Court, Rule 39.01 Evidence on Motions and Rule 39.04 Service of Affidavits Rule 39.01 EVIDENCE ON MOTIONS AND APPLICATIONS 39.01 By Affidavit

(1) On a motion or application evidence may be given by affidavit unless directed otherwise by these rules or by order. Rule 39.04 EVIDENCE ON MOTIONS AND APPLICATIONS 39.04 Service of Affidavits Except for the person giving Notice of Application or Notice of Motion, any person who intends to give affidavit evidence at the hearing shall serve a copy of such affidavit (a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing. 5. Black's Law Dictionary (8th ed. 2004) , Page 4288 defines the word SHALL as

follows: SHALL shall, vb. 1. Has a duty to; more broadly, is required to <the requester shall send notice> <notice shall be sent>. This is the mandatory sense that drafters typically intend and that courts typically uphold. 6. Rules of court Rule 39.04 is clear, any person who intends to give affidavit

evidence at the hearing shall (is required to) serve a copy of such affidavit a) on the person giving the notice, and (b) on each person served with the notice, at least 4 days prior to the date set for the hearing, since the Respondents, did not, then they should not benefit from the same affidavit..

Discretion 7. Black's Law Dictionary (8th ed. 2004) defines Abuse of Discretion as follows: abuse of discretion. 1. An adjudicator's failure to exercise sound, reasonable, and legal decisionmaking. 2. An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence. 8. The learned Trial Judge erred in law, in irregularly applying the Courts

Discretion. The 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. A court must avoid to

substitute its view on issues of propriety of purpose and the relevance of the factors considered.

9.

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. 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. Reference: In 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: 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. Rule 1.03 (2) 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) to secure the just, least expensive and most expeditious determination of every proceeding on its merits, by not allowing the Continuance, based on the facts of the subject case.

11.

Refusal by the Learned Trial Judge to grant the requested Continuance resulted

from the application of a wrong principles of law. Refusal to grant the requested Continuance did not result in securing the just, least expensive and most expeditious determination of the proceedings on the merits as envisioned by Rule 1.03(2).

12.

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

13.

The fair and proper administration of Justice in Law requires of the Court of

Queens Bench Trial Division to apply the Rules of Court, for a determination of every proceeding on its merits. A determination should be in keeping with the general direction contained in Rule 1.03(2) of the New Brunswick Rules of Court.

14.

The Appellant could not schedule a meaningful Discovery pursuant to the

Mechanics Lien Act nor reasonably set the matter down for Trial, without first regaining possession of relevant evidentiary inter alia Contractual documents. Appellant by Filed Submission argued that to do justice in this particular case requires a balancing of the prejudice to both parties tentatively resulting from the Courts decision to grant or refuse the Appellants Application. The Court failed to balance the prejudice to both parties.

15.

The Appellant contends that as a general principle, the Rules of Court should not

be used to prevent the delivery of rights; nor should they be used to preclude the enforcement of claims derived from substantive law. Moreover, a Court should interpret and apply the Rules of Court to ensure, to the greatest extent possible, that there is a final determination, unless the application of the rules would result in a serious prejudice or injustice. In this case, granting the continuance would have preserved the Status quo, maintained each Partys standing at the time, to the prejudice of neither Party and would have allowed the parties an opportunity to resolve the matter fairly.

Material misapprehension of the evidence 16. Factual findings made by the Learned Trial Judge, should not be entirely

accepted, Appellant will demonstrate unreasonable findings, numerous incidents of material misapprehension, tainted by a failure to consider relevant evidentiary material, The misapprehension of the evidence must go to the substance rather than to the detail. It must be Material rather than peripheral, and the errors thus identified must play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a Decision. If an Appellant can demonstrate that any Decision is based on Misapprehension of Evidence it must follow that the Appellant has not received a fair trial, and was the victim of a miscarriage of justice.

17.

Erroneous findings and subsequent rulings made by the Learned Trial Judge

which demonstrated Material Misapprehension of the evidence: 18. Setting the matter down for Trial Moving the matter along Reason for the Delay Prejudice Ownership of Property Mechanics Lien Documents Recovery of Documents

Learned Trail Judge has reasonably demonstrated Omissions in Reason for

judgment that which amount to material error, because the necessary evidence was incidentally left out, giving rise to a reasonable belief the trial judge has forgotten, ignored or misconstrued evidence in a way that consequentially affects the Honorable Courts final conclusions. Reasonable Apprehension of Bias 19. Natural justice requires administrators to adhere to fair decision procedure. The

bias rule - decision maker must be impartial and must display no reasonable apprehension of bias. Justice must not only be done, but must be seen to be done. Appellant contends and will demonstrate by way of the filed written submissions that a reasonable apprehension of bias arose by the fact that the Learned Trial Judge only accepted argument and evidence which favored the Respondents position, further, Learned Trial Judge verbalized blatantly erroneous statements again based on erroneous information, moreover, not consonant with the facts of this ACTION. Please note: Impartiality is a principle of Justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons. 20. Appellant contends a Reasonable Apprehension of Bias, that the learned Trial Judge

only accepted argument/evidence favoring Defendants position, further Learned Trial Judge made statements within the decision which reasonably must be misapprehension of Law according to the facts of the case.

21.

Costs Appellant will demonstrate that a grossly unfair allocation amounts to an error of

principle, further, exercise of Trial Judges discretion in this matter was affected by error in principle and or by misapprehension of the facts.

22.

Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The law never works

an injury, or does a wrong. Appellant claims Learned Trial Judge exercised discretion with regards to Cost awarded in favor of the Defendant are manifestly without merit, therefore injustice would result if the Cost award is allowed to stand. Abuse of Discretion is defined by Lectlaw at the following website: (http://www.lectlaw.com/def/a004.htm) ABUSE OF DISCRETION When a court does not apply the correct law, or if it rests its decision on a clearly erroneous finding of a material fact. U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir.'93). A court may also abuse its discretion when the record contains no evidence to support its decision. MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91) .. judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion.

23.

The learned Trial Judge exercised discretion but did so, in a way that is clearly

against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. 24. Manifest Abuse of Discretion must be obvious, evident, and or unmistakable, as

in this case Appellant alleges to have suffered. Since The law will not intend a wrong., Bacon's Maxims (17, reg. 3). Respondent for six months avoided Court Service also conspiring with RBC initiating a foreclosure evict (vacant possession) of Appellant, further, refused to produce documents and finally denied four requests of Consent to a Continuance, and despite all this uncooperative behavior, Defendant was awarded Costs.

25.

The Appellant, desiring a cost effective resolution did request consent of

Respondent to a Continuance of the subject Mechanics Lien Action a) May 31, 2010; b) November, 22nd, 2010; c) November 23, 2010 d) January 20, 2011.

26.

The Appellant without exception adhered to the Rules of Court in pursuance of

the Mechanics Lien Act. Within Plaintiffs SUBMISSION 2, is a 30 page Should the Defendant pay costs of the within Motion? Appellant further requested an Order that Defendant pay, forthwith, costs of the subject Motion consequential of the Defendants, non-compliance with Rules of Court. The Appellant, in this matter, has provided ample argument, as evidenced by the Record of a history of the Defendant in that matter, of non compliance with the Rules of Court, furthermore, the Appellant relies upon the Respondents Solicitors adherence to The Law Society of New Brunswicks Code of Professional Conduct, CHAPTER 15 Section 2 (iii), 2 (v), 2 (vii) and Section 4, consequently, the Appellant requested of the Court of first instance, to consider the above when ruling as to costs of the subject Motion. To this effect the Appellant provided the Honorable Court with itemized list of Rules of Court which the Respondent has a history of non compliance, inter alia, Rules of Court, Rule18.02, Rule 18.03, Rule 20.01, Rule 20.02, Rule 27.03, and Rule 27.04. Furthermore, Appellant provided a letter to the Respondent requesting Documents pursuant to the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 32(1), Dated May 31, 2010, although the Act compels the Respondent to respond, Respondent did not.

27.

Appellant (as Plaintiff) provided argument that Costs should be awarded. It

follows: lay litigants who 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; which included: a) a Record on Motion Book 1

b) subsequent Record on Motion Book 2, c) The Plaintiffs Submission Book 1 (90 pages) d) Plaintiffs Submission Book 2 (290 pages), including 32 listed authorities, e) a Brief for the Courts convenience f) Oral presentation (not permitted to present the Honorable Court) Hearing of the matters February 14, 2011. Appellant provided voluminous submissions, affidavit evidence with exhibits, substantiating the Plaintiffs argument. In contrast the Respondent allegedly provided nothing, other than a single Brief since the first Hearing June 10, 2010. Appellant contends: no work equals no merit, further, equals no costs.

28.

Manifest Abuse of Discretion: Court decisions unsupported by evidence and

based on a erroneous findings of a material fact, in this matter it a disservice to the administration of justice occurs if this Award of Costs is allowed tostand.

Costs on Appeal 29. The Appellant contends, that, it is has been, and remains, well established by the courts, that lay litigants may recover costs proportional (to lawyers), including counsel fees, which is clearly a trend, of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

30. As stated in Fong, et al v. Chan, et al, 1999, as a matter of principle, it seems difficult to justify a categorical rule on one hand encouraging cost recovery, alternatively, thereby (for same degree of meritorious efforts) denying selfrepresented litigants recovery of costs.

31. As stated previously 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. 32. Self-represented lawyers are entitled to indemnity on the time is money or opportunity cost rationale and it is difficult to see why the opportunity cost rationale should not be more generally applicable to self-represented litigants, such as the Appellant in this matter before this Honorable Court.

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

34. Costs may be awarded to those lay litigants, who demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer, therefore, retained to conduct the litigation, further, that as a result, they incurred according to opportunity cost rationale costs by foregoing remunerative activity, additionally, useful Costs are a useful tool of the Court to encourage settlements or to discourage and or sanction inappropriate behavior.

35. Having considered the above, here within provided arguments for costs, this Honorable COURT OF APPEAL may find it appropriate to Order the Respondent to pay costs throughout, in addition to all reasonable disbursements.

36.

Regarding Order Sought In Noble Securities Holding Limited v. Tremblay, 2007 NBCA 91 (CanLII), J.

ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK, explained why the Court may render any decision and make any order which ought to have been made, and may make such further or other order as the case may require, at paragraph 12 as follows:

[12] Under Rule 62.21(1) this Court may render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. In our view, it is appropriate to extend the deadlines set by Rule 37.06(1) and to rescind the decision of January 23, 2006 pursuant to that Rule. 37. This full section 62.21 of the Rules of Court of New Brunswick is quoted below: 62.21 Powers of Court of Appeal To Draw Inferences and Make Decisions (1) The Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. 38. In consideration of the following Appellant Andre Murray respectfully requests,

that this Honorable Court of Appeal under Rule 62.21(1) grant a Continuance of the Mechanics Lien Action pursuant to section 52.1 (2) of the Mechanics Lien Act. Part V A concise statement of the order sought from the Court of Appeal, including any special disposition with regard to costs; 1. The appellant asks that the decision of Honorable Madame Madam Justice J. L. Clendening, Queens Bench Trial Division, Judicial District of Fredericton, Dated the 24th day of June, 2011, be in its entirety set aside and that a new hearing be held. 2. The Appellant asks that this Court Order a continuance under the Mechanic Lien Act, R.S.N.B. 1973, c. M-6, providing sufficient time for the parties to hold a Discovery, after which, if settlement cannot be achieved between the Parties, then the matter be set down for Trial and that this Court Order costs in favor of the Appellant. 3. The Appellant asks that this Court Order costs in favor of the Appellant, regarding this Appeal.

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