1.

Is this decision a final order?

2. Is there is a conflicting decision by another judge or court upon a question involved in the proposed appeal and, in the opinion of the judge hearing the motion, it is desirable that leave to appeal be granted? 3. Does the judge hearing the motion doubts the correctness of the order or decision in question? 4. Does the judge hearing the motion consider that the appeal involves matters of such importance that leave to appeal should be granted? 5. 6. Should the Court grant leave to Appeal? Should the Court grant a stay of proceedings?

7. Should the Court give special instruction regarding the Appellants Submission? 8. Should the Court give instruction on filing of the Appeal Books?

9. Should the Court recognize the Tenancy of Intended Appellant Andr Murray? 1. FINAL ORDER OR DECISION 1. The nature of the decision, Dated October 21, 2011, by the Honorable Zol R.

Dionne, finally disposes of, or substantially decides the rights of the parties, and it ought to be treated as a final order or decision. 2. The intended consequence of the Action filed by the Intended Respondents was to

gain legal vacant possession of the 29 and 31 Marshall Street Property, Fredericton New Brunswick. The decision being Appealed, dated October 21, 2011 accomplishes this intended goal. 3. The Intended Respondents original claims (found in the Notice of Action and

Statement of Claim Dated September 18, 2009) of the Defendant wrongfully converting the property, occupying the property without permission or consent, unjust enrichment,

conversion of property are now rendered moot, and actionable, because of the Tenancy Agreements / leases made, and rental payments for same, continuing to this day, between the Intended Appellant and the owner of the subject Marshall Street Property, void those claims. The evidence of the leases and bank deposits made to the Landlords account for over six years as well as the Intended Appellant physically being at the premises for the time period in question is ample evidence of those facts. 4. The Intended Appellant has been fighting to enforce the Rights of Tenants and the

security of tenure, which should be an obvious right to all Tenants of New Brunswick. The Decision being appealed, Dated October 21, 2011, as made finally disposes of, or substantially decides the rights of the parties, being, namely the Tenancy Rights of the Intended Appellant and the alleged Mortgagee rights of the Intended Respondent. 5. In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.) Honorable

Justice J. ERNEST DRAPEAU, J.A. stated Courts the approach to the determination of the threshold question of whether an order or decision is interlocutory or final: .. If the nature of the order or decision as made finally disposes of, or substantially decides the rights of the parties, it ought to be treated as a final order or decision. If it does not, and the merits of the case remain to be determined, it is an interlocutory order or decision. 6. The Royal Bank of Canada would in effect have received the relief they where

seeking as expressed in the Original Notice of Action and Statement of Claim, vacant possession of the 29 and 31 Marshal street property. Once the Defendant is removed from the property, and vacant possession is achieved by the Plaintiffs, there would be no longer a reason to continue on with the litigation claims, since their stated desired remedy was achieved. 7. There is no longer any merits of the case remaining to be determined, therefore,

the decision being appealed is not an interlocutory order or decision. 8. At paragraph 110 of the subject October 21, 2011 decision, the Court referenced the

Intended Respondents own arguments regarding the doctrine of Res Judicata applying to 2

a decision of the Learned Trial judge baring rehearing, let alone relitigation of a decision vacating the Intended Appellant. 9. Black's Law Dictionary provides the definition of Functus Officio as [Latin having

performed his or her office] (Of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished. 10. The Court of Queens Bench Trial division would be without jurisdiction, further Application of The Residential Tenancy Act of New Brunswick, Application of The Property Act of New Brunswick, Subject Termination of Tenancy Rescinding Orders made without Notice per October 20, 2009 decision

authority or legal competence to rule between the parties regarding matters of:

and inter alia the other relief which was sought between the parties, because the duties and functions of the original commission have been fully accomplished, therefore the decisions as rendered would be final. The Court of Queens Bench Trial division could not revisit these matters as decided upon, in the five subject Motions referred to in the October 21, 2011 decision now being appealed 11. Black's Law Dictionary defines Res Judicata as [Latin a thing adjudicated] 1. An issue that has been definitively settled by judicial decision. 2. An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been but was not raised in the first suit. 12. The Intended Respondents have already claimed the Doctrine of res Judicata, to

bar the Intended Appellants claims from being heard, the three listed essential elements of Res Judicata present in this case are: (1) an earlier decision on the issue, which would be in this instance, the decision Dated October 21, 2011, by the Honorable Zol R. Dionne regarding the five motions considered, which the Defendant seeks leave to appeal presently; 3

(2)

a final judgment on the merits, the decision as it stands is final on the matters,

unless overturned upon Appeal ( the only Court with the Jurisdiction to do so) after consideration by the Honourable Court of Appeal, furthermore, Honorable Zol R. Dionne, could not rule again on these same matters between the parties; (3) the involvement of the same parties, or parties in privity with the original parties such as in this case of the ROYAL BANK OF CANADA & 501376 N.B. Ltd., a body corporate, and ANDR MURRAY. 13. The Learned Trial Judge did at paragraph 110 114 of the Courts decision of

October 21, 2011, point to the fact that because of Rules of Court Rue 37.06, the applicable conditions of that rule cause a limit or a reserve to the application of the Doctrine of res judicata. It is an obvious fact that the Intended Appellant could not rely on Rules of Court Rules 37.06 this time around, therefore the courts own decision is further argument, in the Intended Appellants favour, that the Doctrine of Res Judicata does apply now in the present situation, therefore the decisions on the five motions is a final one. 14. The Intended Appellant Defendant would be barred by res judicata and functus

officio, therefore it would not be possible to have the Court of Queens Bench Trial Division hear anything further regarding the Rights of Residential Tenants in New Brunswick, as they applied to the Intended Appellant, (Defendant in that matter) Andr Murray and the 29 and 31 Marshall Street Property, Fredericton New Brunswick, the impugned claims by the Royal Bank of Canada as Mortgagee, and 501376 N.B. Ltd., a body corporate, as tentative purchaser of a Mortgagee Deed, regarding the incidents as decided upon October 21, 2011. The five Motions were essentially, interalia, regarding: a. Plaintiffs Motion: The numbered company 501376 N.B. Ltd., a body corporate withdrawing from the litigation; b. Plaintiffs Motion: Striking the (Intended Appellant in this matter) Defendants Affidavit material from the record regarding claims of Fraud upon the Court, inter alia;

c. Defendants Motion: Rescinding Orders made without Notice, made on October 20, 2009 and strike portions of the Plaintiffs statement of claim and summarily dismiss the Plaintiffs claims for lack of jurisdiction, inter alia; d. Plaintiffs Motion: Ruling on the Property Act, RSNB 1973, c P-19 verses the Residential Tenancies Act, SNB 1975, c R-10.2 and lack of jurisdiction of the Court, inter alia; e. Plaintiffs Motion: Ruling on impugned Notice of Termination of Tenancy and lack of jurisdiction of the Court, inter alia. 15. This same principles or rules of res judicata and functus officio would bar the

Court of Queens Bench Trial Division from hearing the Intended Appellants two further motions scheduled for February 23, 2012, because of estopple, the Court could not possibly grant the relief requested, which is intended to directly affect the courts conclusions, regarding the 5 motions (at the time undecided upon) but now already decided upon. The Defendant was seeking a Stay of Proceedings until the Court considered accepting New Evidence and a Post Hearing brief further, the Defendant was seeking to strike prejudicial affidavit material from the record before the Court rendered a decision on the five Motions (now being Appealed). This was necessary evidently because without the Court Striking the requested frivolous and vexatious Affidavit material from the record, considering a post hearing brief and considering the new Evidence, the Learned Trial Judge did in fact render a decision against the Defendant in that matter on all remedies sought. 16. Should this Honorable Appellate Court, in the process of rendering a decision, in

the unlikely event of determining that the lower Court decision of Honorable Zol R. Dionne is interlocutory; the Intended Appellant Andr Murray shall seek to provide further legal reason to grant leave to appeal as follows. Leave to Appeal required

17.

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: [11] not be granted unless: (a) there is a conflicting decision by another judge or court upon a question involved in the proposed appeal and, in the opinion of the judge hearing the motion, it is desirable that leave to appeal be granted, the judge hearing the motion doubts the correctness of the order or decision in question, or Rule 62.03(4) provides that leave to appeal shall

(b)

(c) the judge hearing the motion considers that the appeal involves matters of such importance that leave to appeal should be granted. [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 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. 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

[23]

[24]

cumulative effect of these considerations leads me to conclude that leave should be granted pursuant to Rule 62.03(4)(b). Disposition [25] The motion for leave to appeal is allowed, with costs of $750 payable by the plaintiff, S. Bransfield Limited, to the defendant, Gordon MacArthur.

18.

Granting the requested stay of proceeding and leave to appeal would preserve the

status quo and maintain the parties positions a they now stand, until the final resolution of the matter on Appeal. 19. May it please this Honorable Court Intended Appellant will now attempt to address

each of the criteria, required, that Leave to Appeal to be granted, as follows:

2. A) Leave to appeal shall be granted as follows: Rule 62.03(4) (a) there is a conflicting decision by another judge or court upon a question involved in the proposed appeal and, in the opinion of the judge hearing the motion, it is desirable that leave to appeal be granted, 20. As far as the Intended Appellant knows there is no other conflicting decision of a

Court in New Brunswick, this decision would be the Provincial Legal Precedent, but there are decision of the Courts of other provinces which do conflict with this decision entirely, especially, as an example, in the case of Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII), where Honorable Justice SCHWARTZ J. rules exactly opposite to the Learned Trial Judges Ruling (which the Intended Appellant seeks Leave to Appeal), in a almost identical situation, namely with The Royal Bank of Canada as the Mortgagee, attempting to vacate lawful Tenants of a Mortgagor in default but in that case the Tenants rights were justly upheld by that Court. 21. In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII), Justice

SCHWARTZ J. provided a decision as follows:

VII

Decision

[37] This court is satisfied that the purpose of the amendment and the intention of the Manitoba legislature were to bring evictions of tenants by mortgagees within the framework of and subject to the provisions of the R.T.A. That intention has, in my view, been expressed with the irresistible clearness described by Philp J.A. quoting LHeureux-Dub at paragraph 20 as follows: [38] I note that the Director argues that the current rule of statutory interpretation does not require irresistible clearness but rather the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. That is the language used by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 where he delivered the judgment of an unanimous supreme court. [39] Further the Director submits that the language of section 6 of The Interpretation Act of Manitoba, C.C.S.M., c. I80 requires the same conclusion. Rule of liberal interpretation 6 Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal interpretation that best ensures the attainment of its objects. [40] I recognize that I am bound to apply as a test the latest expression of the Supreme Court, namely the language of Iacobucci J. in Rizzo (above). [41] Having reviewed and considered its entire context, and applying the words of the R.T.A., and in particular the amended definition of landlord, in their grammatical and ordinary sense, harmoniously, with the scheme of that Act, its object and the intention of the Manitoba legislature, this Court must refuse the order of possession sought. The Mortgagee is bound to obtain possession in accordance with the R.T.A. [42] Argument was presented by the Mortgagee on the practical difficulties of requiring a mortgagee to comply with the R.T.A. Those arguments were countered by the Director and may be found at pages 18 et seq. of his brief. [43] I do not intend to comment on those arguments in these reasons. They are policy issues properly brought before an appropriate legislative committee when amendments to the Act are considered. IX Final Result

[44] The application for an order of possession against the Tenants is therefore refused. The application for an order of possession against the Owners is granted. The Mortgagee is entitled to its costs against the Owners. 22. The Intended Appellant does believe that this Court, upon hearing the motion, will

believe, that it is desirable that leave to appeal be granted. 3. B) Leave to appeal shall be granted as follows: Rule 62.03(4) (b) the judge hearing the motion doubts the correctness of the order or decision in question. 23. The intended Appellant posed the question to the Learned Trial Judge Does the

Court have Jurisdiction to rule on matters concerning the Residential Tenancies Act S.N.B. 1975, c. R-10.2 ?. The Learned Trial Judge did not answer this question or address it in any part of the decision Dated October 21, 2011. 24. Had the Learned trial judge answered that question in the negative then the Intended

appellant would have been successful on the Motion to rescind, and striking the Plaintiffs Claims would have terminated the Action further, the Intended Respondents motions regarding Termination of Tenancy and Priority of Mortgage would have been rendered moot. 25. The following is the appropriate Maxim in the present circumstance. Maxim Rerum ordo confunditur, si unicuique jurisdictio non servetur. The order of things is confounded if every one preserves not his jurisdiction. 26. The relevant New Brunswick Rules of Court, brought to the trial Judges attention (2) A defendant may, at any time before the action is set down for trial, apply to the court to have the action stayed or dismissed on the ground that (a) the court does not have jurisdiction to try the action,

were Rule 23.01(2)(a), which is reproduced as follows:

27.

Further the Intended Appellant Andr Murray was seeking an order Under Rule

22.01 (3) of the Rules of Court, that, the Court may grant summary judgment against the Plaintiff on the ground that there is no merit to the action, or to one or more claims therein, or to part of any such claim, an order for summary judgment against the Plaintiffs striking out the Plaintiff s Statement of Claim or part of Plaintiff s Statement of Claim, namely paragraph 8 and 9 of the Plaintiff s Statement of Claim for lack of Jurisdiction. 28. Intended Appellant Andr Murray did seek an order Under Rule 23.01(2)(a) of the

Rules of Court, to dismiss the Plaintiff s Action, for the Honorable Courts lack of Jurisdiction, to rule on matters concerning the Residential Tenancies Act S.N.B. 1975, c. R-10.2. in any capacity not specifically granted, by the Act. That Rule of Court, Rule 23.01(2)(a) states (2) A defendant may, at any time before the action is set down for trial, apply to the court to have the action stayed or dismissed on the ground that (a) the court does not have jurisdiction to try the action, . 29. Intended Appellant Andr Murray sought an order, pursuant to Rule 27.09 (c) an

abuse of the process of the court,, striking out paragraph 8 and 9 of the Plaintiff s Statement of Claim on the grounds that it indeed was a practice of abuse of the process of Court in the fact that the Plaintiffs abused the process as they where motivated to circumvent the jurisdiction of the Rentalsmen, and the authority granted the Rentalsmen pursuant to New Brunswick Residential Tenancy Act. 30. Paragraph 8 and 9 of the Plaintiff s Statement of Claim, Court Date File Stamped

September 18, 2009, are reproduced below: 8. Pursuant to the Bidding Papers and Terms of Sale, the Property was due to close within 20 days from the date if the sale, however, the Plaintiffs have been unable to complete the sale of the property as a result of the Defendants refusal and / or neglect to vacate the property. 9. The defendant has been served with a Notice to Vacate the property, however, has refused to vacate the subject property. The Plaintiff says the Defendant has wrongfully converted the property and is occupying the property without permission or consent.

10

31.

Intended Appellant posed the question By what authority do the Plaintiffs claim to

be able to evict the Residential Tenant Andr Murray? The Plaintiffs did not claim, that Defendant is compelled to vacate the property according to any New Brunswick Act, rule of Court or any claimed authority transferred to the Plaintiffs or the Court by any known Law of New Brunswick. The Defendant has been continuously at the 29 Marshall Street Property since early 2005 and the Leasehold Tenancy of Intended Appellant Andr Murray falls squarely under the authority of the New Brunswick Residential Tenancy Act and the jurisdiction of the Rentalsmen.. 32. The Defendant had several leases for the Marshal Street Property, deemed by the

Court to be valid, therefore the Defendant could not have wrongfully converted the property or occupied the property without permission or consent. Those claims are invalid, based on erroneous information and now moot. 33. The Residential Tenancies Act S.N.B. 1975, c. R-10.2, section 2 states Except

where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; The Judicature Act is not listed as an exception, anywhere in the Residential Tenancies Act S.N.B. 1975, c. R-10.2,. Specifically provided for, in The Residential Tenancies Act, is the exclusive jurisdiction of the Court of Queens Bench, over the adjudication, and only in a special appeal capacity, of any dispute arising only after a Rentalsmen has made a decision, which the Landlord or Tenant wishes to have reviewed. 34. It is the position of the Defendant that the Plaintiffs filed the Notice of Action with

the intention of circumventing the authority and jurisdiction of the Residential Tenancies Act S.N.B. 1975, c. R-10.2. The law of New Brunswick states that if a Residential Tenant is to be evicted, the eviction must be according to and in pursuance the Residential Tenancies Act of New Brunswick.

11

35.

The following definition of notwithstanding is from Black's Law Dictionary (8th notwithstanding, prep. Despite; in spite of <notwithstanding the conditions listed above, the landlord can terminate the lease if the tenant defaults>.

ed. 2004),at Page 3378 as follows: NOTWITHSTANDING

36.

In Royal Bank Of Canada v. Zonneveld, 2003 MBQB 24 (CanLII) Justice

SCHWARTZ J. stared the following regarding statutory interpretation (please see provided below from paragraph 38 through to and including paragraph 39), as follows; [38] I note that the Director argues that the current rule of statutory interpretation does not require irresistible clearness but rather the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. That is the language used by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27 where he delivered the judgment of an unanimous supreme court. [39] Further the Director submits that the language of section 6 of The Interpretation Act of Manitoba, C.C.S.M., c. I80 requires the same conclusion. Rule of liberal interpretation 6 Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal interpretation that best ensures the attainment of its objects. 37. The Intended Appellant (Defendant in that matter), like the Director in Royal Bank

Of Canada v. Zonneveld, supra, also argues that the current rule of statutory interpretation does not require irresistible clearness but rather the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. That is the language used by Iacobucci J. in Rizzo and Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27 where he delivered the judgment of

12

an unanimous supreme court. Additionally the comparable section of the New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 is as follows: 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 38. The Residential Tenancies Act of New Brunswick is a remedial act that is intended

to protect the rights of Landlords and Tenants, large and liberal interpretation best ensures the attainment of its objects. Maxim - Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law. 39. According to Residential Tenancies Act section 26(2) A rentalsman, in addition to

carrying out any other duties or exercising any other powers under this Act or the regulations, including section 26(2) (l) shall act under the provisions of this Act with respect to the termination of tenancies. The responsibility of termination of residential tenancies is the duty of the Rentalsman, and the most appropriate action for the Plaintiffs to have taken, to terminate the tenancy of The Intended Appellant (Defendant in that matter), Andr Murray, would have been through the appropriate steps overseen by the Rentalsmen.

40.

Rule 27.09, provides for the striking out of pleadings, portions thereof or other

documents which are scandalous, frivolous, vexatious, or otherwise an abuse of the court. The Intended Appellant (Defendant in that matter), claims that paragraph 8 and 9 of the Plaintiffs Statement of Claim should be struck because, under Rule 27.09, paragraph 8 and 9 are scandalous, frivolous, vexatious, or otherwise an abuse of the court, circumventing the authority of the New Brunswick Residential Tenancies Act and the authority of the Rentalsmen. 41. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 specifically

designates authority to a Judge of The Court of Queens Bench of New Brunswick under subsection 27(1) to review and set aside the decision, order, notice of termination,

13

notice to quit, notice to comply or order of eviction on the ground that it was made (a) without jurisdiction, or (b) on the basis of an error of law., made by a Rentalsmen. 42. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 specifically

designates authority to a Judge of The Court of Queens Bench of New Brunswick under subsection 27(1) to act only after a decision has been made by made by a Rentalsmen, not before. The capacity of the Judge of The Court of Queens Bench of New Brunswick under subsection 27(1) is clearly that of a special Justice of a Appeal capacity. 43. Black's Law Dictionary (8th ed. 2004) , Page 2490 defined Jurisdiction as follows:

2. A court's power to decide a case or issue a decree

44.

The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 specifically

designates authority or jurisdiction to a Judge of The Court of Queens Bench of New Brunswick under subsection 27(1) specifically as the Court's power to decide a case or issue a decree after a decision has been made by made by a Rentalsmen. 45. The Intended Appellant (Defendant in that matter), asserts that the necessary

condition on which the jurisdiction of the Court of Queens Bench can be engaged is under subsection 27(1) of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 is only after the prerequisite decision or Order of the Rentalsmen is issued, otherwise the Court of Queens Bench Trial division has no Jurisdiction to hear matters regarding the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 and specifically in the Defendants case, the matter of a Notice to Vacate a Residential Property or Termination of a Residential Tenancy. Jurisdiction 46. The person known as the Rentalsmen, is the person who may carry out such duties,

as are legislated by Residential Tenancies Act, and has jurisdiction over matters regarding the Residential Tenancies Act, the question arises, what role does a Judge of

14

The Court of Queens Bench of New Brunswick, have in relation to Residential Tenancies Act. 47. In determining if this Honorable Court has Jurisdiction to hear matters regarding

Residential Tenancies Act, may require the interpretation of two statues namely: Residential Tenancies Act, S.N.B. 1975, c. R-10.2 Judicature Act, R.S.N.B. 1973, c. J-2

48.

Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B.

1973, c. J-2 claim that each Act is respectively notwithstanding any other Act, which would of course include each other. 49. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones. [Cases: Statutes 159, 162. C.J.S. Statutes 287, 294.] 50. The definition of Leges posteriores priores contrarias abrogant is provided by Implied repeal The doctrine of implied repeal is a concept in English constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed (i.e. no longer law). This doctrine is expressed in the Latin phrase "leges posteriores priores contrarias abrogant".

following excerpt:

Wikipedia, at the following URL: http://en.wikipedia.org/wiki/Implied_repeal

51.

Leges Posteriores Priores Contrarias Abrogant: This method of statutory

construction in this case, applies to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2. The concept of this stature is the newer statute later abrogates a prior statute only where the two are manifestly inconsistent with and repugnant to each other. The rationale for this form of construction is that the newer

15

statute more accurately depicts the current societal mood or more appropriately applies Jurisdiction to a given subject. 52. Though both Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act,

R.S.N.B. 1973, c. J-2 claim that each Act is respectively Notwithstanding any other Act, which would of course apply to each of the here within mentioned Acts, based on the Maxim Leges posteriores priores contrarias abrogant, Residential Tenancies Act enacted in 1975, takes precedence therefore the conflicting parts of the earlier Judicature Act enacted in 1973, are in effect, now subordinate. 53. Based on the Maxim Leges posteriores priores contrarias abrogant, the Residential

Tenancies Act, is in fact, notwithstanding the any other Act, agreement or waiver to the contrary which includes Judicature Act, R.S.N.B. 1973, c. J-2. 54. In applying this principle it is instructive to look at the objectives set out in section

9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, which provides the Trial Division shall have and exercise general and original jurisdiction in all causes and matters, while at the same time, section 27(1), 27(2), 27(3), 27(5), 27(6), 27(7), 27(8), 27(9) and 27(10) of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2, clearly states the jurisdiction of a Judge of The Court of Queens Bench of New Brunswick in relation to matters governed by The Residential Tenancies Act. The Intended Appellant submits that the legislation in question (The Residential Tenancies Act) is not by any means ambiguous, and the intention is to make abundantly clear the relationship, role and jurisdiction of Judge of The Court of Queens Bench of New Brunswick. 55. It is a well established principle of statutory interpretation that the legislature does

not intend to produce absurd consequences. According to Ct, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment. Sullivan echoes these comments noting that a label of absurdity can be

16

attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile. 56. The Intended Appellant will refer to and rely on the well established principle of

statutory interpretation, that: the legislature does not intend to produce absurd consequences. an interpretation may be considered absurd, if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment a label of absurdity may be attached to interpretations which defeat the purpose of a statute

57.

An analysis of the principle in Re Rizzo & Rizzo Shoes Ltd., supra, can also be

buttressed by the maxim expressio unius est exclusio alterius. The Residential Tenancies Act clearly defines the role of a judge of The Court of Queens Bench of New Brunswick, in relation to matters governed by the Residential Tenancies Act in section 27 of the Act. Section 27 regulates the jurisdiction of a Judge of The Court of Queens Bench of New Brunswick to act and in what capacity. If the legislation within the Residential Tenancies Act, intended that a Judge of The Court of Queens Bench of New Brunswick shall have unlimited jurisdiction already granted by Section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, then there would have been no need to include conditions on how a judge of The Court of Queens Bench of New Brunswick has jurisdiction to act and in what capacity, which has the effect of excluding while limiting the already granted jurisdiction of the Court as per the maxim expressio unius est exclusio alterius. In Transpacific, Justice Lysyk described it as follows: "The principle ... expressio unius est exclusio alterius: the express mention of one or more things of a particular class may be regarded as impliedly excluding others."

17

"An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislatures failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied." 58. The Intended Appellant believes that the above mentioned principles of statutory

interpretation are persuasive, especially when considering, that when certain things are specified in a law, an intention to exclude all others from its operation may be inferred. Because of this expectation, the legislatures failure to mention the jurisdiction of the Court other than, in a limited appeal from a decision of the Rentalsmen capacity, becomes grounds for inferring that it was deliberately exclusionary. 59. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 specifically

designates authority or jurisdiction to a Judge of The Court of Queens Bench of New Brunswick under subsection 27(1) specifically as the Court's power to decide a case or issue a decree only and not until after a decision has been made by a Rentalsmen. 60. The Intended Appellant asserts regarding the New Brunswick Residential Tenancies

Act S.N.B. 1975, c. R-10.2 that the necessary condition on which the jurisdiction of the Court of Queens Bench can be engaged is under subsection 27(1); further, this may only occur after the prerequisite decision or Order of the Rentalsmen is or has been issued respectively; moreover, the Court of Queens Bench Trial division has no unilateral Jurisdiction to hear matters within the scope of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 which includes any matters of a Notice to Vacate a Residential Property or Termination of a Residential Tenancy. 61. The Intended Appellant submits, that because of lack of Jurisdiction {pursuant to

the Maxim Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, a.k.a. "Last in Time") and the Maxim Expressio Unius Est Exclusio Alterius (The express mention of one thing excludes all others) }, this Honorable Court should not (in this matter) render a decision which would vacate the

18

Defendant from the 29 Marshall Street and 31 Marshall Street, Residential Duplex in the City of Fredericton, as that decision is within the jurisdiction of the Rentalsmen only, consequence of the Defendants Tenancy since year 2005 in pursuance with the New Brunswick Residential Tenancies Act. Hearing Rule 62. 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. 63. Black's Law Dictionary (8th ed. 2004), APPENDIX B at Page 5263 Audi alteram partem. Hear the other side. No one should be condemned unheard. 64. The Court rendered a decision on five Motions without hearing the Appellant, on

two further Motions which directly addressed and were relative to and could have changed the outcome of the five Motions decided upon by the Court, October 21, 2011, despite the Intended Appellants objections. It is noteworthy that even the Intended Responded Objected to not being able to submit material and evidence and be heard themselves by the Learned Trial Judge, regarding the Intended Appellants two further Motions. It seems to be a rare situation, when both Parties objected to not being provided the basics of procedural fairness, namely the Right to be Heard. 65. 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, and consequentially the motion judge failed to exercise the Courts discretion judicially at from paragraph 13 to through 16 as follows: http://canlii.ca/s/to04 19

[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 crossexamine 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. My disposition of this appeal requires that the matter be returned to the Court of Queens Bench for consideration of the issues raised by Mr. Munns request to cross-examine and a fresh determination of all the issues raised in the Notices of Motion. [16] For these reasons, I would allow the appeals and order the respondent, Mr. Rust, to pay one set of costs, which I would fix at $1,500.

66.

The Intended Appellant (similarly to Justice M.E.L. LARLEE, J.A. stated position)

is of the view that, in refusing to consider the Intended Appellants two filed Motions, (filed August 9, 2011 and filed August 25, 2011 respectively) the motion judge failed to exercise his discretion judicially. The Intended Appellant had a right to be heard on those issues, and procedural fairness required the motion judge to hear him. It is only after hearing the Intended Appellants arguments in support of his request to the various relief which was sought and any arguments made in reply by the Intended Respondents, that the motion judge would have been able to judicially exercise the discretionary powers. 67. Furthermore the following principle of natural justice is found at wikipedia.org at the

following address: http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed or appealed, but may be remitted for a valid re-hearing.

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68.

Furthermore, the Learned trial Judge made a case management order January 14,

2011 (the Honorable Justice Dionne did sign a case management Order. A copy of this Order is attached to the Affidavit of Andr Murray Dated Oct 28, 2011 as EXHIBIT A.), baring the Intended Appellant from filing any further evidence to be used on the Plaintiffs two scheduled Motions, past a certain date, contrary to the rules of Court, the principals of Natural Justice and procedural fairness. The Intended Appellant had a right to regular procedure regarding the Plaintiff two motions, the case management order created a situation where the Intended Appellants was unjustly restricted, in being able to answer the Plaintiffs Affidavit material, in due course of the proceeding. 69. Because of the case management order Dated January 14, 2011 the Intended

Appellant was prejudiced in defending the matters of the two motions filed by the Plaintiffs, being: (1) the Plaintiffs Motion to validate the impugned Notice of Termination of Tenancy and (2) the Plaintiffs Motion to establish priority of the Plaintiffs Mortgage over the Defendants claims of Residential Tenancy and Mechanics Lien. 70. When the Intended Appellant filed a Motion: a. to file a Post Hearing Brief and Adduce New Evidence (August 9, 2011, I Andr Murray did file a NOTICE OF MOTION (FORM 37A), and AFFIDAVIT in support which was COURT OF QUEENS BENCH TRIAL DIVISION MONCTON N.B. FILED/REGISTERED Stamped as August 9, 2011. A copy of this Motion is attached to the Affidavit of Andr Murray Dated Oct 28, 2011 as EXHIBIT C) and; b. strike scandalous affidavit material from the record (August 25, 2011, I Andr Murray did file a NOTICE OF MOTION (FORM 37A), and AFFIDAVIT in support which was COURT OF QUEENS BENCH TRIAL DIVISION MONCTON N.B. FILED/REGISTERED Stamped as August 25, 2011. A copy of this Motion is attached to the Affidavit of Andr Murray Dated Oct 28, 2011 as EXHIBIT D)

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before the Court rendered a final decision on the matters, the Learned Trial Judge did refuse to hear those Motions before rendering the decision now being Appealed. It is noteworthy, that almost two month did pass, between the time of the Defendant (Intended Appellant) filing the Motions for relief and the Court rendering the October 21, 2011 decision, now being appealed. Bias Rule 71. The Learned Trial Judge failed to understand the facts and arguments as presented

by the Appellant and instead pursued only the arguments and assertions as presented by the Respondent, this predisposition of the Learned Trial Judge toward a particular result, is such that a reasonable apprehension of bias is raised. The Appellant contends that a reasonable apprehension of bias arose by the fact that the learned Trial Judge only accepted argument and evidence which favored the Defendants position, further the learned Trial Judge made obviously erroneous statements within the decision which reasonably must be based on incorrect information, contrary to the facts of the case. 72. The Learned Trial Judge instead of adhering to rule 3.02 of the rues of Court, and

hearing the Intended /appellant regarding the filed Motion on rescinding Orders, instead favored the Intended Respondents in all the remedies they were seeking, including adjournments and hearing al their motions which were filed subsequently, at the same time as the Intended Appellants Motion. The Court granted an adjournment December 2009, then another in January 2010, then a third March 2010 because the Intended Respondents filed a second motion to be heard on the same scheduled day, then in November 2010 the Intended Respondents filed a third motion to be heard on a two day, scheduled event. Even though the Intended Appellant was ready to proceed with the motion to Rescind, and so were the Intended Respondents, the Learned Trial Judge insisted that the three motions be heard at relatively the same time. Then at the scheduled march 2011 hearing, the Court allowed the Intended Respondents to have two of their motions, heard before the intended Appellants Motion to Rescind. The way that the Learned Trial Judge did provide for all the requests of the intended Respondents without good reason for it, raises reasonable apprehension of bias.

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73.

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 .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. If actual or apprehended bias arises from a judges words or conduct, then the judge has exceeded his or her jurisdiction. 74. As expressed in R. v. S. (R.D.), [1997] 3 S.C.R. 484, If actual or apprehended bias

arises from a judges words or conduct, then the judge has exceeded his or her jurisdiction. The Learned Trial Judge did take judicial notice, that the Solicitor for the Plaintiffs is also the Mayor of the City of Moncton. For the Court to take judicial notice that the Solicitor for the Plaintiffs is the Mayor of the City of Moncton, adds nothing to the proceeding and makes it abundantly apparent that the Court is effected by that fact and is not therefore judging impartially. The fact that the Solicitor for the Plaintiffs is the mayor, should have nothing to do with the facts before the court, and should not have any bearing upon the decision of the Court. The Learned Trial Judge even admitted the fact, that neither party did bring this Mayor of Moncton fact to the Courts attention. 75. It is wrong that the Learned Trail Judge, would be considering the implications, of

what it would mean to rule against the Mayor. The rights of a Mortgagee should have no connection to the celebrity, of the position of Mayor. Justice should be blind to celebrity and the fact that the Solicitor for the Plaintiffs is Mayor, had absolutely no bearing on the matters before the Court. In fact, despite the celebrity of the Mayor and allegations of Fraud upon the Court, absolutely no-one, except the self represented

23

Intended Appellant and the Solicitors representing the Intended Respondents, attended the many hearing on the mater. 76. 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. The Learned Trail Judge dismissed the possibility of the Intended Appellants two possible motions effecting the outcome of the 5 already decided motions, without having actually heard them, and without giving the Intended Respondents, the opportunity to respond, a fact which was objected to by the Solicitor for the Intended Respondents. 77. 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 decisionmaker 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. The Learned Trial Judge, did at an earlier hearing, defend the actions of the solicitor for the Plaintiffs and did claim partial responsibility, before the matter was even argued, let alone completely heard and a decision rendered (after weighing all the evidence and argument). By sharing the blame or responsibility and denoting the actions of the Solicitor for the Intended Respondent as being harmless, that claim, conspicuously benefited both the Mayor and the Judge in question. The Learned Trial Judge did erroneously make an unusual ex parte, without notice decision and subsequent Order, which should have been overturned, as a right pursuant to Rules of Court, Rule 37.06 Rescinding Orders Made Without Notice. 78. By announcing shared blame for the unusual ex parte, without notice decision and

subsequent Order, the Learned Trial Judge did in essence excuse both his and the Mayors behavior. Unfortunately this vested interest creates bias on the part of the adjudicator.

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79.

The shear volume of irregularities in service leading up to unusual ex parte, without

notice decision and subsequent Order, was not addressed by the Learned Trial judge in his decision. The fact that both the the Mayor and the Process Server responsible for non-service, of the subject Court Documents, did both admit to lying, of course, after the proof of the deception was presented, to the Court for consideration, that fact was not addressed by the Learned Trial Judge, in the subject October 21, 2011 impugned Decision. 80. Before finding a reasonable apprehension of bias, the reasonable person would

require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. From the beginning of the Moncton hearing where the Intended Appellant was present, the judge maintained a viewpoint that the Intended Appellant was evading service and did not change that opinion, despite evidence to the contrary, making several comments along the way, through several hearings which revealed the same (1) I the Intended Appellant was purposely manipulating the court when I was late, getting there (2) I the Intended Appellant must be really unlucky to have missed all these notices, or I the Intended Appellant intended the result (3) the judge said to trust him that the Court would be able to sort through what was admissible and argument and or irrelevant, so there was not need for the Intended Appellant to be concerned about the shear volume and repetitious nature of the Intended Respondents Hearsay Affidavit Claims, which were targeting the Intended Appellants creditability. 81. A fair trial is one that is based on the law and its outcome determined by the

evidence, free of bias, real or apprehended. Evidence showing propensity has been repeatedly rejected. Trial judges must base their findings on the evidence before them, but in this case the Learned Trial Judge did not address the many irregularities of service which were brought to the Court Attention further, the fact that both Solicitor George H. LeBlanc and Process server Dave Daneliuk (whos services were used several times after the fact anyway) and Gino Duguay lied in affidavit to the Court. The Learned Trial Judge even revealed that Gino lying did not matter to the Court.

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82.

No evidence supported many of the conclusions that the Learned Trial Judge

reached. Judges, as arbiters of truth, cannot judge credibility based on irrelevant witness characteristics. All witnesses must be placed on equal footing before the court. 83. 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. 84. In Wright v. Czinege, 2008 BCSC 1292 (CanLII), Honourable Madam Justice

Humphries, regarding requirements for service, stated that requirements for service must be strictly adhered to; for that reason, service improperly effected is not service at all, from paragraph 32 through to and including paragraph 55: [33] Counsel for the petitioner argues that it is settled law that if a claimant fails to serve a defendant with an originating process in accordance with the relevant statutory requirements _ including any order for substitutional service made under them and subsequently obtains a default judgment based on the defendants failure to respond, then the default judgment is a nullity. .. [44] 1. 2. 3. 4. 5. I take the following principles from the cases referred to above: requirements for service must be strictly adhered to; service improperly effected is no service; evidence that the proceedings have come to the attention of the other party is not a substitute for proper service; failure to serve proceedings results in any consequent order being nullity; the opposing party is entitled to have such an order set aside as of right; the discretionary considerations set out in Miracle Feeds do not apply to applications to set aside default judgments where proper service was not effected.

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[45] While the detailed review of the law which was provided to me is of assistance, it must be mentioned, in fairness to the provincial court judge who declined to set aside the default judgment, that these cases were not provided to him. There was no issue taken before him with the relevance of the tests set out in Miracle Feeds to the application to set aside the default judgment. Result [55] Counsel for the defendant/petitioner suggested that if she were successful in her argument and the default judgment were set aside, she would acknowledge service on behalf of the defendant, file a Reply, and assist in bringing the proceedings to completion before the provincial court. In the alternative, the matter could be directed back to the small claims court for reconsideration in light of this courts reasons. M.A. Humphries J. The Honourable Madam Justice M.A. Humphries 85. The Intended Respondents (Plaintiffs in that matter) did not perform or properly

process Court document Service of the subject Court documents, as is required by the Rules of Court, this fact (and the lies of the Plaintiffs process server) was brought to the Learned trial judges attention, yet despite this, the Learned Trial Judge ruled that service was effected anyway, which is contrary to the evidence, and even the subject process servers own testimony. 86. The maxim nemo judex in causa sua debet esse - no person can judge a case in

which he or she is party or in which he/she has an interest - underlies the doctrine of reasonable apprehension of bias. The Learned Trial Judge failed to understand the facts and arguments as presented by the Appellant and instead pursued only the arguments and assertions as presented by the Respondent, this predisposition of the Learned Trial Judge toward a particular result, is such that a reasonable apprehension of bias is raised. 87. With respect to reasonable apprehension of bias, the Appellant relies on the

Decision as rendered October 21, 2011. The Appellant alleges the limited statutory references demonstrate that the Learned Trial Judge, (disregarded the argument presented regarding the New Brunswick Residential Tenancy Act), instead strongly advocated a

27

particular view concerning the purposes of the New Brunswick Property Act, and its application, thereby demonstrated a predisposition toward a particular result such that a reasonable apprehension of bias is raised. 88. The Court in the Decision of October 21, 2011 did claim that the Intended

Respondent did provide all the argument and referenced authorities to be granted the remedies they sought. This being despite the fact that the Intended Appellant did point out to the Learned Trial Judge that the cases referenced by the Intended Respondent were set in a different legal landscape, one being where the Judges arrived on horseback because there were no cars and they had to read at night by candle light because there was no electricity. When considering Court cases around the time of confederacy, one must also consider that Banks did not exist then as they do today. These Judges were considering mortgages from private individuals who actually lent out their own money, they were protecting the interest of one man as opposed to another man which had previous agreed to performance by contract. Todays Bank do not lend out their own money, besides that the loans are insured so there is not risk at all to the Lending institutions. Furthermore, the actual credit is in fact first created when a Mortgagor places his signature on a single party contract. 89. One cannot apply rules and consideration the Courts of Confederation meant to

protect a man from loosing his own real money, to, in the alternative, todays Financial Lending institution, which is at risk of nothing, which merely transfers credit, created by a applicants signature, from one account to another. 90. 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

28

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. Written Decision October 21, 2011. 91. The Appellant asserts that the trial judge made a number of material errors in law

while arriving at Decisions and in respect the Courts exercise of discretion and further the Courts discretion regarding costs. The learned Trial Judge erred in law, in irregularly applying the Courts Discretion. The Appellant contends, that The Learned Trial judge did display abuse of discretion, which is an adjudicator's failure to exercise sound, reasonable, legal decision-making. The Learned Trial Judge instead rendered a decision which is unsupported by the evidence and clearly based on erroneous findings of material fact. Material misapprehension of the evidence 92. The factual findings made by the Learned Trial Judge should not be accepted,

because the Appellant can show that they are unreasonable, based on a material misapprehension of the evidence, and or tainted by a failure to consider material, relevant evidence. The effect is significantly unjustified prejudice and or injustice to the Appellant. 93. 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.

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94.

The Leaned Trial Judge error in law: misapprehension of the matter of the Intended

Appellant evading /service, which is unreasonable, based on a Material Misapprehension of the Evidence before the Court, and or tainted by a failure to consider relevant evidence material; 95. If the Learned Trial Judge accepted that the numbered company withdrawing from

the action, then that means the power of sale did not occur, the sale did not close and the Intended Respondents cannot rely on the property act, to further their claims. Which means that the Intended Respondents could only rely on the mortgage contract, with no statutory power what so ever to have a higher legal standing than a Tenancy pursuant to the Mechanics Lien Act. 96. The Learned Trail judge did not rule against the Intended Appellant regarding

claims of fraud upon the Court which would mean that the trial judge was persuaded that these claims were in fact valid enough to not rule against the Intended Appellant. 97. The Intended Appellant supports the English dictum that a man's home is his refuge

as was established in common law by the lawyer and politician Sir Edward Coke in The Institutes of the Laws of England, as early as 1628 further, that this is a fundamentally important concept, when considering the application and importance of the intention thereof the Residential Tenancy Act, as any Rulings by the Learned Trial Judge will affect all Tenants of New Brunswick, the English dictum is reproduced below: 98. The Learned Trial Judge did misapprehend that two or more Residential Leaseholds

do run concurrently so that the beginning of one tenancy contract is the beginning of the Tenancy Term, and if there are several leases which are signed afterward, then they run unbroken from the initial lease to the most current, to calculate the actual term of the tenancy. The Learned Trail Judge did erroneously state that the intended Appellant was not in fact a Five Year Tenant when the impugned Notice of Termination of Tenancy was served.

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99.

The Learned Trail judge did misapprehend that the alleged Notice of Termination

of tenancy was served by any person with the actual capacity to terminate the Intended Appellants Tenancy. Further the Learned Trail judge did not address the many irregularities present in the alleged Notice of Termination of Tenancy which rendered same invalid, without legal effect and unenforceable. 100. In summation Intended Appellant verily believes to be true, that, the Notice of Termination of Tenancy and Lease dated May 20, 2010:
a) is not Dated by each signatory;

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

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

the signatures are illegible;

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

as Landlord;
e) Is not valid, for a Year to Year' Tenancy, a NOTICE OF TERMINATION OF

TENANCY AND LEASE as Dated May 20, 2010, was not served by Landlord at least three months before the expiration of any such year to be effective on the last day of that year. According to the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1)(a), this June 3, 2010 at 4:35 P.M. Service date is outside the time limits prescribed by the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1)(a), regarding the 29 Marshall Street and 31 Marshall Street premises which are let from year to year and therefore the Notice of Termination of Tenancy and Lease, Dated May 20, 2010 has no legal effect on the Rights of Tenant Andr Murray who is sheltered in Law by The Residential Tenancies Act, of New Brunswick;

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f) The Intended Appellant asserts, that the Learned Trial Judge, should not Validate

the impugned Notice of Termination of Tenancy and Lease dated May 20, 2010, as requested by the Plaintiffs, because the subject impugned Notice of Termination of Tenancy and Lease dated May 20, 2010 does not comply with the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1.1) (b), section 24(1.1) (e), and section 24(1.1) (f) and consequentially, the notice is in fact void according to the New Brunswick, Residential Tenancies Act inter alia.
g) Without the basic acknowledgement of the Authenticity, validity or legal effect of

the subject Lease, there is no Lease to terminate, consequentially the Notice of Termination of Tenancy and Lease, makes no sense and in effect is non-sense;
h) Has no force of law because Landlord, in capacity as Landlord, or an agent for

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

The Defendant asserts that a Notice of Termination must be dated and signed by the the Landlord person, (the legally constructed person,) that legal subject or substance of which the rights and duties of the Landlord are attributes, or an agent or representative of the landlord person, which has the capacity to terminate (on behalf of the landlord person) the Tenancy Contract with the Tenant person, (the legally constructed person,) that legal subject or substance of which, the rights and duties of the Tenant are attributes;

101. The Intended Appellant verily believes to be true, that the Landlord Betty Rose Danielski desires to deny acknowledgment of her Landlord capacity and legal obligations of being Landlord; as such is the case Landlord capacity has not currently been confirmed and any a Termination of Tenancy of Defendant Tenant Andr Murray according to the terms of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2. can only be properly terminated according to law, namely the Residential Tenancies Act, S.N.B. 1975, c. R10.2. 24(1)(a), 24(1.1) and as such the tenancy of Andr Murray continues.

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102. Please note Defendant Andr Murray is a Long Term Tenant according to the Residential Tenancies Act requiring different Termination of Tenancy then a Year to Year Tenant addressed further on in Section 15 Long Term Tenancy of the Defendants submission. Long Term Tenancy 103. Following April 01, 2010, according to the previous April 01, 2005 and the current (Dated September 1, 2005) Year to Year Lease period, the Defendant became a Longterm Tenant according to Residential Tenancies Act, S.N.B. 1975, c. R-10.2, and effectively the termination of tenancy conditions changed substantially. 104. The Residential Tenancies Act, S.N.B. 1975, c. R-10.2, provides that a tenancy agreement is capable of taking effect at law or in equity from the date fixed for commencement of the tenancy without the requirement of any entry onto the premises and according to the Defendants earliest lease of March 2005 allowing for pre entry renovation et cetera, furthermore, since all Tenancy is measured in time and runs concurrently with any new, and or previously signed lease, in regards to the same 29 and 31 Marshall Street premises, that date of the commencement of the Defendants tenancy was March 01, 2005. 105. Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 10(2) is provided below: 10(2) A tenancy agreement is capable of taking effect at law or in equity from the date fixed for commencement of the tenancy without the requirement of any entry onto the premises. 106. After April 2010, according to the concurrent Lease period, the Defendant became a Long-term Tenant according to Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24.2, because the 29 31 Marshall Street Duplex premises have been occupied by the same tenant (the Defendant) for five consecutive years or more and effectively the

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termination of tenancy conditions changed substantially after April 2010, which will now be addressed. 107. The Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24.2 is provided below Application of sections 24.3 to 24.7 24.2 Sections 24.3 to 24.7 apply to all tenancies of premises, other than mobile home sites, that have been occupied by the same tenant for five consecutive years or more. 108. Since the Intended Appellants Tenancy is regarded by the Residential Tenancies Act, as in the category defined as a Long Term Tenancy, Termination of Tenancy rules are substantially different from a Year to Year Tenancy. 109. The relative section of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1.1), is reproduced below: 24(1.1) A notice of termination served by a landlord or tenant under this Act (a) shall be in writing, (b) if served by the landlord, shall set out the name of the tenant, (c) shall state the address of the demised premises to which the notice relates, (d) shall state the effective date of the notice, (e) shall state the reason for the termination, if otherwise required by this Act to do so, and (f) shall be dated and signed by the landlord or an agent or representative of the landlord or by the tenant, as the case may be. [Emphasis added] 110. The most relevant section (at this point), of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, is section 24(1.1), regarding long term tenancies, is (e), which is that a

34

notice of termination served by a landlord under this Act shall state the reason for the termination, if otherwise required by this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2) to do so. Following March 2010, a notice of termination served upon Tenant Andr Murray by a landlord under this Residential Tenancies Act, S.N.B. 1975, c. R-10.2 shall (must) state the reason for the termination as required by this Act to do so 111. The subject Notice of Termination of Tenancy and Lease Dated May 20, 2010, is conspicuously absent the reason for the termination as required by this Residential Tenancies Act, S.N.B. 1975, c. R-10.2., section 24(1.1). 112. Intended Appellant asserts, that this Court, should not Validate (as requested by the Plaintiffs) the impugned NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 2010, as served by the Plaintiffs because the subject NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 201 does not comply with the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, section 24(1.1), section 24.7(1) (a), (b), (c) or (d), section 24.7(2) and the notice is in fact void according to the New Brunswick, Residential Tenancies Act. 113. The Learned Trial Judge, did fail to recognize that the Intended Appellant was a long term tenant at the time of the alleged service of the subject Termination of Tenancy, therefore the subject Termination of Tenancy was insufficient to in fact terminate the Intended Appellants Lease, so the lease in fact survived. 114. The Learned Trial Judge, did fail to recognize that the Intended Appellant was and has still continued to pay rent to the Landlord Betty Rose Danielski. The Acceptance of rent by the landlord, for residential premises is a acceptance of the Landlord relationship. The Landlord cannot claim to terminate the Tenancy and yet at the same time continue to collect rent at the first of every month. Property Act verses the Residential Tenancies Act

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1.

The distinguishing section of the Residential Tenancies Act is Section 2 is

reproduced below as follow: 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; 2. When the key words of section 2 of the Residential Tenancies Act, are defined it

reads as follows: 2 Except where otherwise specifically provided for in this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2 ), this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2 ) applies to tenancies (a person is granted the right to possess premises in consideration of payment of rent) of residential premises (any house, dwelling, mobile home, apartment, flat, tenement or similar place that is occupied or may be occupied by an individual as a residence) and tenancy agreements (means an agreement whereby a person is granted the right to possess premises in consideration of payment of rent) respecting such premises (any house, dwelling, mobile home, apartment, flat, tenement or similar place that is occupied or may be occupied by an individual as a residence), (a) notwithstanding (Despite; in spite of) the Landlord and Tenant Act or any other Act (including the Property Act, R.S.N.B. 1973, c. P-19), agreement (Mortgage Agreement / Promissory Note) or waiver to the contrary (Contract), arising or entered into before or after this Act (Residential Tenancies Act, S.N.B. 1975, c. R-10.2) comes into force. 3. Furthermore, regarding obligations with respect to the tenancies, Section 13 (7),(8),

and (9) of the Residential Tenancies Act, reads as follows: 13(7) Where a landlord transfers his estate in the real property of which the demised premises form all or a portion (a) the transferee assumes all of the obligations with respect to the tenancy; and (b) no action lies against the transferor for any obligation with respect to the tenancy; arising after notification of the transfer takes place in accordance with subsection (8). 13(8) Where a landlord transfers his estate in the real property of which the demised premises form all or a portion he shall notify the rentalsman and the tenant of such 36

transfer in the form prescribed by regulation within seven days after such transfer. 13(9) Where pursuant to subsection (7) a transferee assumes the obligations with respect to a tenancy, he is a landlord for all purposes of this Act. 13(9.1) Subsections (7), (8) and (9) do not apply where the landlord transfers an estate in the property to a mortgagee solely for the purpose of mortgaging the real property of which the premises form all or a portion. 4. Leaving nothing merely implied, the Residential Tenancies Act addresses the act of

Mortgaging the Property confirming that assignment of a Mortgage does not transfer the Title and responsibilities of the Landlord on to the Mortgagee, instead and quite to the contrary, pursuant to the Residential Tenancies Act, the Mortgaged property is still considered to be under the care and control of the Landlord of that Mortgaged property. 5. The Residential Tenancies Act clearly transfers the obligations of a Landlord

(transferor) uninterrupted onto the Transferee in a Real-estate transaction, even a Realestate transaction pursuant to the Property Act, R.S.N.B. 1973, c. P-19. 6. Furthermore, the Property Act, R.S.N.B. 1973, c. P-19, section 47(1) clearly

provides that a Mortgagee exercising the power of sale, transfers that property subject to all estates, interests and rights that have priority to the Mortgage, priority rights such as those entrenched within the Residential Tenancies Act and assigned to the Tenant. 7. The relative section 47(1), of the Property Act, R.S.N.B. 1973, c. P-19 is provided

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

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8.

When the key words of section 47 (1) of the Property Act, R.S.N.B. 1973, c. P-19,

are defined, the following is the result. A mortgagee exercising the power of sale conferred by section 44 (section 44 of the Property Act) may convey the property (Mortgage) sold (at auction), for such estate and interest therein as is the subject (having relevance to the current discussion) of the mortgage (prior written agreement) freed (to relieve or rid of what restrains, confines, restricts) from all estates, interests and rights to which the mortgage has priority (The status of being higher in degree or rank, pursuant to the Property Act ), but subject (exposed, or liable/ to bring under control or dominion) to all estates, interests and rights (subject of a right - The owner of a right; the person in whom a legal right is vested, in this case a Tenant, one who holds or possesses lands or tenements by any kind of right or title.) that have priority (The status of being higher in degree or rank, specifically a Tenants rights, pursuant to the Residential Tenancies Act, notwithstanding/ despite any other Act), to the mortgage. 9. Further on this point of interpretation, Defendant notes that The Property Act

section 47(1) makes a clear distinction between the conditions of freed from and comparatively its opposite or antonym subject to. 10. When the Property Act section 47(1) is read with the above referenced antonyms, the following is understood: 47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed (released) from all estate, interests and rights to which the mortgage has priority, but subject (confined) to all estates, interests and rights that have priority to the mortgage. 11. When the Property Act section 47(1) is read with the above referenced antonyms, the following is understood: 47(1) A mortgagee exercising the power of sale conferred by section 44 may convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from (unaffected by) all estate, interests and rights to which the mortgage has priority, but subject to (affected by) all estates, interests and rights that have priority to the mortgage.

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12. As demonstrated and comprehended by the Defendant, the Property Act, R.S.N.B. 1973, c. P-19, section 47(1), when interpreted with the above provided referenced definitions, clearly provides that a Mortgagee exercising Power of Sale, (a provision within the New Brunswick Property Act.), therefore, transfers such property subject to or confined to all estates, interests and rights and or is subject to such rights as are notwithstanding the New Brunswick Property Act., such as those within the Residential Tenancies Act; the Defendant claims shelter of the law found within the Residential Tenancies Act, Laws affording rights which are notwithstanding the New Brunswick Property Act., therefore, causing all relative encumbrances/obligations attributed to the Tenant must travel uninterrupted, remain intact and transferable to a Tenant, from the seller to the purchaser of the Property. 13. For further clarification, let us review The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 which states: 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 14. The very helpful explanations of Interpretations of Statutes, is provided in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, by Justice Iacobucci J. at paragraph 21 and 27, there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 15. When examining the New Brunswick Residential Tenancies Act we can easily understand the scheme of the Act, the object of the Act, and the intention of Parliament can be comprehended to enshrine the Law with capacity and mandate for protection of the deeply cherished community value of the sanctity of the home. This well known, well recognized, established principle of Right of the sanctity of the home, devised for the protection of individual security, applies to all homes of a man or woman and is the factor that makes Residential Tenancies so unique, in reflecting these very principals.

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

17. The Defendant argues that a label of absurdity must be attached to interpretations of the Residential Tenancies Act, that, which may defeat the purpose of a statute or render some aspect of it pointless or futile. The New Brunswick Residential Tenancies Act., includes the defining terms of application of the Act to be, NOTWITHSTANDING the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary, therefore, the situation is made abundantly clear and behoves the reader of the New Brunswick Residential Tenancies Act. to avoid the absurdity of an interpretation of the Residential Tenancies Act, to somehow, not be applicable to Mortgaged premises sold at Auction pursuant to the Property Act. 18. The New Brunswick Residential Tenancies Act, Section 2 provides that: Except where otherwise specifically provided for in this Act Residential Tenancies Act, this Act Residential Tenancies Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding (in spite of, even if, without regard to or impediment by other things as stated) the Landlord and Tenant Act or any other Act (the Property Act), agreement or waiver to the contrary.

Jurisdiction 19. The New Brunswick Residential Tenancies Act Section 26 (1) clearly states who shall carry out the duties as are prescribed by Residential Tenancies Act, please see:

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Section 26 (1) of The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 is reproduced below: RENTALSMEN 26(1) The Lieutenant-Governor in Council may appoint one or more persons as rentalsmen who shall carry out such duties as are prescribed by this Act and the regulations. 20. The person known as the Rentalsmen, is the person who may carry out such duties, as are legislated by Residential Tenancies Act, and has jurisdiction over matters regarding the Residential Tenancies Act, the question arises, what role does a Judge of The Court of Queens Bench of New Brunswick, have in relation to Residential Tenancies Act. 21. In determining if this Honorable Court has Jurisdiction to hear matters regarding Residential Tenancies Act, may require the interpretation of two statues namely: Residential Tenancies Act, S.N.B. 1975, c. R-10.2 Judicature Act, R.S.N.B. 1973, c. J-2

22. Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2 claim that each Act is respectively notwithstanding any other Act, which would of course include each other. 23. Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the following excerpt: Leges posteriores priores contrarias abrogant. Subsequent laws repeal prior conflicting ones. 24. The definition of the Maxim Leges posteriores priores contrarias abrogant is provided at the Legal Dictionary website at the following URL at (http://legaldictionary.thefreedictionary.com/Leges+posteriores+priores+contrarias+abrogant) Leges posteriores priores contrarias abrogant. Subsequent laws repeal those before enacted to the contrary. 2 Rol. R. 410; 11 Co. 626, 630. A Law 41

Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856. 25. The definition of Leges posteriores priores contrarias abrogant is provided by Wikipedia, at the following URL: http://en.wikipedia.org/wiki/Implied_repeal Implied repeal The doctrine of implied repeal is a concept in English constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed (i.e. no longer law). This doctrine is expressed in the Latin phrase "leges posteriores priores contrarias abrogant".

26. Leges Posteriores Priores Contrarias Abrogant: This method of statutory construction in this case, applies to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2. The concept of this stature is the newer statute later abrogates a prior statute only where the two are manifestly inconsistent with and repugnant to each other. The rationale for this form of construction is that the newer statute more accurately depicts the current societal mood or more appropriately applies Jurisdiction to a given subject. 27. Though both Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and Judicature Act, R.S.N.B. 1973, c. J-2 claim that each Act is respectively Notwithstanding any other Act, which would of course apply to each of the here within mentioned Acts, based on the Maxim Leges posteriores priores contrarias abrogant, Residential Tenancies Act enacted in 1975, takes precedence therefore the conflicting parts of the earlier Judicature Act enacted in 1973, are in effect, now subordinate. 28. Based on the Maxim Leges posteriores priores contrarias abrogant, the Residential Tenancies Act, is in fact, notwithstanding the any other Act, agreement or waiver to the contrary which includes Judicature Act, R.S.N.B. 1973, c. J-2.

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29. The following definition of notwithstanding is from Black's Law Dictionary (8th ed. 2004),at Page 3378 as follows: NOTWITHSTANDING - notwithstanding, prep. Despite; in spite of 30. The subject section of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2, which includes notwithstanding is reproduced below as follows: 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary;

31. The subject section of the Judicature Act, R.S.N.B. 1973, c. J-2 which includes notwithstanding is reproduced below as follows: 9(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely: 32. To understand the use of the term and meaning of notwithstanding requires that we interpret the subject statutes. The interpretation of a statute is a question of law, and correctness is the standard of review applicable in this case. Statutory interpretation should be approached with the following analytical framework set out in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (S.C.C.), [1998] 1 S.C.R. 27, at pages 40 and 41: Although much has been written about the interpretation of legislation . . ., Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary

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sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 33. In applying this principle it is instructive to look at the objectives set out in section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, which provides the Trial Division shall have and exercise general and original jurisdiction in all causes and matters, while at the same time, section 27(1), 27(2), 27(3), 27(5), 27(6), 27(7), 27(8), 27(9) and 27(10) of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2, clearly states the jurisdiction of a Judge of The Court of Queens Bench of New Brunswick in relation to matters governed by The Residential Tenancies Act. The Defendant submits that the legislation in question (The Residential Tenancies Act.) is not by any means ambiguous, and the intention is to make abundantly clear the relationship, role and jurisdiction of Judge of The Court of Queens Bench of New Brunswick. 34. The following explanation of Statutory interpretation is provided at Wikipedia located at the following URL: http://en.wikipedia.org/wiki/Statutory_interpretation Conflicts between sources of law Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute. U.S. Supreme Court: "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254. Supreme Court of Virginia: "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929). 44

Supreme Court of Alaska: "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996); 35. An analysis of the principle in Re Rizzo & Rizzo Shoes Ltd., supra, can also be buttressed by the maxim expressio unius est exclusio alterius. The Residential Tenancies Act clearly defines the role of a judge of The Court of Queens Bench of New Brunswick, in relation to matters governed by the Residential Tenancies Act in section 27 of the Act. Section 27 regulates the jurisdiction of a Judge of The Court of Queens Bench of New Brunswick to act and in what capacity. If the legislation within the Residential Tenancies Act, intended that a Judge of The Court of Queens Bench of New Brunswick shall have unlimited jurisdiction already granted by Section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, then there would have been no need to include conditions on how a judge of The Court of Queens Bench of New Brunswick has jurisdiction to act and in what capacity, which has the effect of excluding while limiting the already granted jurisdiction of the Court as per the maxim expressio unius est exclusio alterius. 36. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 provide the following excerpt: Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. Also termed Inclusio unius est exclusio alterius or enumeratio unius est exclusio alteriu. 37. The definition of Expressio Unius Est Exclusio Alterius may be found at the following website (http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlterius.aspx ) and is reproduced below for convenience: Expressio Unius Est Exclusio Alterius definition:

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Latin: the expression of one thing is the exclusion of the other. Sometimes referred to in short form as expressio unius. In Rodaro, Justice, at 856, defined the Latin maxim expressio unius est exclusio alterius as follows: "... a maxim of interpretation meaning that the expression of one thing is the exclusion of the other. When certain persons or things are specified in a law, contract or will, an intention to exclude all others from its operation may be inferred. In this case, the reference to the assignment to a financial institution excludes assignment to any other entity." In Dorval, Justice Cameron expressed it as: "... to express one thing is to exclude another." In Transpacific, Justice Lysyk described it as follows: "The principle ... expressio unius est exclusio alterius: the express mention of one or more things of a particular class may be regarded as impliedly excluding others." Although the doctrine is useful in determining the extents of contracts, it is also an important principle in the construction of statutes. In her book on the topic, jurist Ruth Sullivan wrote: "One of the so-called maxims of statutory interpretation is expressio unius est exclusio alterius: to express one thing is to exclude another. "The maxim reflects a form of reasoning that is widespread and important in interpretation .... the a contrario argument ... negative implication ..implied exclusion ... "An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislatures failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied." 38. The Defendant believes that the above mentioned principles of statutory interpretation are persuasive, especially when considering, that when certain things are specified in a law, an intention to exclude all others from its operation may be inferred. Because of this expectation, the legislatures failure to mention the jurisdiction of the Court other than, in a limited appeal from a decision of the Rentalsmen capacity, becomes grounds for inferring that it was deliberately exclusionary. 46

39. The New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 specifically designates authority or jurisdiction to a Judge of The Court of Queens Bench of New Brunswick under subsection 27(1) specifically as the Court's power to decide a case or issue a decree only and not until after a decision has been made by a Rentalsmen. 40. The Defendant asserts regarding the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 that the necessary condition on which the jurisdiction of the Court of Queens Bench can be engaged is under subsection 27(1); further, this may only occur after the prerequisite decision or Order of the Rentalsmen is or has been issued respectively; moreover, the Court of Queens Bench Trial division has no unilateral Jurisdiction to hear matters within the scope of the New Brunswick Residential Tenancies Act S.N.B. 1975, c. R-10.2 which includes any matters of a Notice to Vacate a Residential Property or Termination of a Residential Tenancy. 41. The Defendant submits, that because of lack of Jurisdiction {pursuant to the Maxim Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, a.k.a. "Last in Time") and the Maxim Expressio Unius Est Exclusio Alterius (The express mention of one thing excludes all others) }, this Honorable Court should not (in this matter) render a decision which would vacate the Defendant from the 29 Marshall Street and 31 Marshall Street, Residential Duplex in the City of Fredericton, as that decision is within the jurisdiction of the Rentalsmen only, consequence of the Defendants Tenancy since year 2005 in pursuance with the New Brunswick Residential Tenancies Act. 42. Considering the above, the factual findings made by the Learned Trial Judge should not be accepted, because the Intended Appellant can show that they are unreasonable, based on a material misapprehension of the evidence, and or tainted by a failure to consider material, relevant evidence. The effect is of unjustified serious prejudice or injustice to the Intended Appellant.

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43. The misapprehension of the evidence in this case goes to the substance of the matter, it is material rather than peripheral to the reasoning of the trial judge, and the errors thus identified play an essential part not just in the narrative of the judgment but in the reasoning process resulting in a Decision. If an Appellant can demonstrate, such as in this case that the Decision depends on a misapprehension of the evidence then, it must follow that the Appellant has not received a fair trial, and was the victim of a miscarriage of justice. The Leaned Trail Judge did demonstrates Omissions in reasons for judgment, which amount to material error if they give rise to the reasoned belief that the trial judge must have forgotten, ignored or misconstrued the evidence in a way that affects the Courts conclusions, such as in this case 44. The Learned Trial Judge did display a reasonable apprehension of Bias by only considering and addressing those arguments raise by the Intended Respondents and dismissed and or avoided addressing the arguments and evidence as presented by the Intended Appellant. The Appellant contends that a reasonable apprehension of bias arose by the fact that the learned Trial Judge only accepted argument and evidence which favored the Intended Respondents position, further, made obviously erroneous statements based on this erroneous information, contrary to the facts of the case. Impartiality is a principle of Justice holding that decisions should be based on objective criteria, rather than on the basis of bias, prejudice, or preferring the benefit to one person over another for improper reasons Discretion 115. 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. 116. 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 48

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. 117. 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. 118. The Learned Trial Judge, demonstrated subjectively that he did not appreciate the argument advanced by the Appellant, consequently failed or refused to understand the legal principles relied on, in support of the Appellants argument, further, the Learned Trial Judge failed to review and understand the relevant evidence. The law has recognized for more than a century that a COURT OF APPEAL would interfere with the exercise of the discretion of a trial judge when "the trial judge was manifestly wrong" or "substantial injustice" or "serious injustice would result", which the Plaintiff claims is evident in this case. 119. Manifest Abuse of Discretion is demonstrated when the Courts Discretionary Decision is unsupported by the evidence choosing instead to arrive at erroneous finding of a material fact, the Appellant claims that the Learned Trail Judge has demonstrated Manifest Abuse of Discretion, in not granting the Appellants Rescinding Orders Motion, and instead rendered a decision in favor of the Intended Respondent in every Motion

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before the Court. In these circumstances and it would be a disservice to the administration of justice to allow this decision to stand. 120. 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 121. As the award of costs, is considered to be a matter within the discretion of the Trial Judge, the Appellant will demonstrate that a grossly unfair allocation amounts to an error of principle, further, that the exercise of the Trial Judges discretion in this matter was affected by error in principle and or by misapprehension of the facts. 122. Appellant (as Defendant) provided argument that Costs should be awarded to the Appellant. It follows that lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, lay litigants, by foregoing remunerative activity, incurred an opportunity cost. It is self evident the Appellant did expend considerable time and energy preparing for the Hearings. 123. Maxim- Lex nemini operrtur iniquum, nemini facit injuriam. The law never works an injury, or does a wrong. The Appellant claims that the exercise of discretion of the Learned Trial Judge in regards to Cost award to the Plaintiff is manifestly without merit, therefore excessively disproportionate, therefore, unbalanced substantial injustice and serious injustice would result if the Cost award is allowed to stand. 124. Manifest Abuse of Discretion is when the Courts decision is unsupported by the evidence and clearly on a erroneous finding of a material fact, the Appellant claims in this matter that the Learned Trail Judge has in this case demonstrated Manifest Abuse of Discretion, in the inappropriately excessive cost awarded the Plaintiff, moreover the unjust awarding of undeserving cost, in the amount awarded in favor of the Respondent

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in these circumstances; further, Appellant contends, it would be a disservice to the administration of justice to allow this Award of Costs to stand. 4. Leave to appeal shall be granted as follows: Rule 62.03(4) (c) the judge hearing the motion considers that the appeal involves matters of such importance that leave to appeal should be granted. 125. The decision being appealed would be setting a dangerous precedent in the New Brunswick Courts favoring Mortgagees profit interests (investment interests) over those of the Rights of Residential Tenancies as should be guaranteed by the Residential Tenancy Act and the Courts of New Brunswick. 126. The importance of such a precedent should be reviewed as a right, because the consequences are that from this decision forward, Tenants rights would be unjustly subservient to corporate profits and because of resjudicata this position would be unduly challenging to overturn, by any other party in the future. 127. People should not be thrown out of their homes unjustly so that a corporation may make a profit, Jurisprudence to this point, has protected the sanctity of the home, to allow this decision to stand unchallenged by the Judicial mechanism, of which the purpose is to review erroneous Court decisions would be a travesty of Justice and a disservice to the administration of Justice. 5. Should the Court grant leave to Appeal? 128. The Intended Appellant verily believes for all the reasons stated above that this Court should grant Leave to Appeal. 6. Stay of Proceedings 129. In J.D. Irving, Limited v. Hughes, 2009 CanLII 25267 (NB CA) Justice M.E.L. LARLEE, J.A. granted Stay of proceeding while simultaneously granting leave to appeal as follows: http://canlii.ca/s/10tdf

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[1]

The motion for leave to appeal is granted pursuant to Rule 62.26 of the Rules of Court and a stay of proceedings is granted. Costs of this motion will be dealt with on disposition of the appeal.

130. The Intended Appellant request of this Court the same remedy, that a stay of proceedings be granted until the final resolution of the rights of the Parties after the completion of the requested Appeal Hearing. 131. In Steldon Enterprises Ltd. v. Moncton (City), 2000 CanLII 10923 (NB CA) Justice J. ERNEST DRAPEAU, J.A. (now Chief Justice of New Brunswick) stated the following regarding granting a stay of proceeding at paragraph 5 as follows : http://canlii.ca/s/3urr 5 . in exercising the discretion conferred by Rule 62.26 of the Rules of Court, a judge must decide whether it is just and equitable to grant the provisional remedy while proceedings are pending. Courts have traditionally resolved that question by applying the well-known three-prong test formulated in Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, and RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311: (1) Does the appeal pose a serious challenge to the decision in the court below? (2) Will the applicant suffer irreparable harm without a stay? (3) Does the balance of convenience favour the order sought? The first branch of the test is referred to in Rule 62.26, while the second and third branches have been formulated by the courts to provide a principled framework for the exercise of discretion contemplated by the Rule. 132. Test part (1) Does the appeal pose a serious challenge to the decision in the court below? The first part of the test requires an applicant to show that there is a serious question to be appealed. The Courts role is simply to determine whether the grounds raises a serious issue for appeal and, for the purpose of this motion, is the Court satisfied that it does? 133. The Intended Appellant argues that this case, if left unchallenged on Appeal, will set a dangerous precedent in New Brunswick Courts, which will effect not only the Intended Appellants interest, but will establish, from now on that Financial institutions, namely Mortgagees have a higher legal standing in New Brunswick compared to Residential Tenants, who should be, protected by the New Brunswick Residential 52

Tenancy Act (pursuant to the intention of the drafters). This precedent will be backwards and opposite to the other provinces of Canada and the intention of purpose, of the Residential Tenancies Act, S.N.B. 1975, c. R.-10.2. There exists no case similar to this one in the established jurisprudence of New Brunswick. The Intended Appellant suggests setting a precedent falls under the category of ground which raises a serious issue for appeal. Without the stay being granted the Intended Appellant will be evicted from a Residence which, (if the Appeal is granted) would have been unnecessary, unneeded traumatic experience which completely disrupts a mans life. The financial interest and profits of a corporation should not be held by the Courts of New Brunswick to be more important than the sanctity of a mans home. The Courts across Canada have come to recognize this principle the sanctity of a mans home (the mans home is his castle) and it would be a step backward fort the Courts of New Brunswick to be bound ( res Judicata) by such a unjust decision. 134. This decision being appealed should not stand because of reasonable apprehension of Bias displayed by the Court, misapprehension of the evidence and argument presented to the Court and further the Intended Appellant was not heard, which violates the principles of Natural Justice, rules of procedural fairness and a man's common law right to be heard. 135. (2) Will the applicant suffer irreparable harm without a stay? The second part of the test requires the applicant to show that the Intended Appellant would suffer "irreparable harm" if the stay is not granted. Irreparable harm means "harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.": see MacDonald at 341. (1) If the Plaintiffs enforce their Order to vacate the Intended Appellant, the Intended Appellant will loose a $80,000 lien on the Marshall Street property, the remedy which is attached to the tangible property, will be forever lost and would not be able to be regained, no money can replace this unique legal standing and position. Further, if the Intended Appellant loses the lien on the 29 and 31 Marshall Street property, there is little

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likelyhood of ever relocating Betty Rose Danielski, who may or may not still be located in Toronto Ontario, for the Intended Appellant to attempt to find remedy, and be made whole by the Courts. (2) The irreparable harm which the Intended Appellant will suffer will be a loss of confidence and belief in the credibility in the Justice system. (3) The irreparable harm which the Intended Appellant will suffer will be a loss of a unique legal position and legal standing as a Tenant in possession of a allegedly Mortgaged (liened) property.

Maxim - Possession is nine-tenths of the law. and Maxim - Longa possessio parit jus possidendi, et tollit actionem vero domino. Long possession produces the right of possession, and takes away from the true owner his action. Co. Litt. 110. (4) The irreparable harm which the Intended Appellant will suffer will be a loss of a unique legal position regarding the continuous possession (more than 6 years) of the Marshall street Property and the unique legal standing as a Tenant in long possession of a property. Long possession produces the right of possession, and takes away from the true owner his action, this unique legal position could not be compensated for in cost, nor could this unique legal position be replaced in any reasonable fashion, at some future time, once lost. Once gone this long right of possession is lost, it is irreplaceably lost forever, unless time once again accumulates, a fact and right which cannot be compensated for in costs. 136. (3) Does the balance of convenience favour the order sought? The third part of the test is known as the balance of convenience test and is defined as "a determination of which of the two parties will suffer the greater harm from the granting or refusal of [a stay], pending a decision on the merits.": The third test, known as the balance of convenience or inconvenience, was defined by Justice Beetz, J. in Metropolitan Stores at page 129 where he said:

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 [convenience] is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.

137. If the Court grants the stay the status quo will remain the same as it is now, and has remained for the last 2 years. The Intended Appellant may remain at the property until the matter and the rights of the parties are conclusively decided upon by the Court of Appeal. The Intended Respondent would be in a position of waiting, like they have been for the last 2 years, for a few short months further, until the matter is actually settled, before that time they could not do anything constructive with the property anyway, pending Appeal. The Intended Responded Royal Bank of Canada is one of the most profitable Corporation in Canada, and a short delay in establishing if this decision will stand will not cause Intended Responded Royal Bank of Canada any real difficulty. Lets be realistic The Royal Bank of Canada, also known as RBC Financial Group has 1,762 branches or offices, 5,033 banking machines in Canada, the United States and internationally, had reportedly 72,126 employees in 2010, had $ 726,206,000,000 in reported assets in 2010 and finally generated $ 36,026,000,000 in reported revenue in 2010 as reported by Canadian Business Resource at (http://www.cbr.ca/CompanyListing.aspx?CompanyID=2878). The Intended Responded Royal Bank of Canada can wait without difficulty until this matter is resolved. 138. If the Court does not grant the stay the greatest harm will be suffered by the Intended Appellant, who will have to vacate the property, experiencing great disruption and distraction to his life and added unnecessary difficulty in attempting to Appeal this Matter as a self represented litigant, while simultaneously trying to relocate and reestablish himself. The Intended Respondent would be in a position of not being able to do anything with the property anyways, pending the outcome of the Appeal Hearing, which the Court of Appeal may ultimately instruct the Intended Appellant to move right back in to 29 and 31 Marshall Street, Fredericton New Brunswick (which the Intended Appellant would of course do, despite any great hardship in doing so), because to enforce Intended Appellants rights as a Tenant in New Brunswick, is the right thing to do.

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139. The Intended Appellant does encourage and believe this Court may decide it is just and equitable to grant the provisional remedy of a stay of proceedings while he Appeal proceedings are pending. 7. Should the Court give special instruction regarding the Appellants Submission? 140. The Intended Appellant does request of the Court, permission to file a Appellants submission longer than the 35 page limit which is customary regarding a single Motion decision or ruling, pursuant to Rule 62.14 (4). 141. Rule 62.14 (4) of the Rules of Court is reproduced as follows:
62.14 Appellants Submission (4) Unless otherwise ordered by the Chief Justice, an Appellants Submission, exclusive of Schedules A and B, shall not exceed 35 pages.

142. The Intended Appellant is Appealing a decision, regarding five separate Motions, so if each Motion was appealed separately that would be 5 times the 35 pages per Motion, which would be 175 pages in total.
143. If the Intended Appellant is bound by the 35 page limit, that would be mean there

would be a unreasonable 7 page limit per Motion in which the Intended Appellant would need to state (1) Part III A concise statement setting out clearly and particularly in what respect
the order or decision appealed from is alleged to be wrong; and (2) Part IV A concise statement of the argument, law, and authorities relied upon;

144. Rule 62.14 (4) of the Rules of Court is reproduced as follows:

62.14 Appellants Submission (1) An appellant shall prepare an Appellants Submission. (2) An Appellants Submission shall consist of 5 parts and 2 schedules as follows: Part I An index of the contents; Part II A concise statement of all relevant facts with

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such references to the evidence as may be necessary; Part III A concise statement setting out clearly and particularly in what respect the order or decision appealed from is alleged to be wrong; Part IV A concise statement of the argument, law, and authorities relied upon; Part V A concise statement of the order sought from the Court of Appeal, including any special disposition with regard to costs;

145. It is unreasonable that the Intended Appellant should be bound to one fifth the page

allowance as a consequence of the Court rendering a Joint decision of five separate Motions. 8. Special Orders Court Direction on Appeal Book 146. Intended Appellant Andr Murray is requesting pursuant to Rules of Court Rule 2.04 Where No Procedure Provided, regarding a matter of procedure not provided for by these rules or by an Act, in such as situation the court may, on motion, give directions, furthermore in the alternative, pursuant to Rule 62.21 and 62.22 (d) of the New Brunswick Rules of Court, give directions in a matter of procedure not provided for by the New Brunswick Rules of Court, as to how the appellant should proceed with respect to providing an extended Appellants submission beyond the usual 35 pages 62.14(4) because of the complexity of five motions decided upon simultaneously and further direction from the Court for filing the expected voluminous Appeal Books; 147. Further relative Rules of Court to be considered are as follows: 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. 62.22 Directions on Appeal (1) A judge of the Court of Appeal may, on motion by a party to an appeal

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(a) order that a Notice of Appeal or Notice of Cross- Appeal be served on a person not a party to the appeal, and make any further order which might have been made if the person had originally been a party, (b) order that service of a Notice of Appeal or Notice of Cross-Appeal be effected by substituted service, or that service be dispensed with, (c) give directions respecting the form and contents of the Appeal Book, (c) give directions respecting the form and contents of the Appeal Book, (d) give directions respecting preparation or reproduction of evidence, and (e) vary the requirements of this rule to avoid undue expense or delay or for any other reason. 148. In Carrier v. Carrier, 2006 CanLII 34964 (NB CA), Chief Justice J. ERNEST DRAPEAU, regarding Rules of Court, Rule 2.04, Where No Procedure Provided and Rule 62.22 , stated the following at paragraph 4 and 5: [4] This rule may only be used when directions are needed on a matter of procedure not otherwise provided for in the rules or in a statute. [5] Moreover, no solution is proposed for the procedural dilemma. This

brings me to state the obvious, namely, that the Court cannot act as Mr. Carriers legal counsel. That is precisely the role I am asked to play in this request for directions under Rules 2.04 and 62.22 (d). For this reason, and as I indicated at the hearing, I cannot grant the motion for directions.

149. The Intended Appellant requests that the parties would each provide an appeal book which would include the Affidavit material evidence filled by that party respectively, as in the Intended Appellant provide the Affidavit Evidence which was submitted by the Intended Appellant (Defendant in that matter) and the Intended respondent file a Respondents Appeal Book which would contain the submitted Affidavit evidence which the Intended Responded submitted (as Plaintiff in that matter) regarding the respective five Motions and further, the two unheard motions filed by the Intended Appellant, which are one of the grounds for appeal.

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150. In NAV Canada v. Greater Fredericton Airport Authority Inc., 2007 CanLII 20961 (NB CA) CHIEF JUSTICE OF NEW BRUNSWICK , J. ERNEST DRAPEAU, stated the following regarding directions of the Court of Appeal on the Appeal Book, as follows: http://canlii.ca/s/v40n [3] The Certificate of Appellant is designed to identify the exhibits and the testimonial evidence required for the appeal. . [7] None of the documents in Tabs 6, 8, 11 and 12 of the Appeal Book qualify for inclusion under Rule 62.13. The Notice of Motion (Tab 6) is not a pleading within the meaning of Rule 62.13(1)(e), the decision on the motion to adduce fresh evidence (Tab 8) is not the decision appealed from within the meaning of Rule 62.13(1)(f) and the affidavits at Tabs 11 and 12 do not form part of the body of affidavit evidence received by the application judge (see Rule 62.13(1)(h), the French version of which makes plain that it targets affidavits received in evidence). That said, Rule 62.13 must be read with Rule 62.22(1)(c), which, as noted, provides that a judge of the Court of Appeal may, on motion by a party to an appeal, give directions respecting the contents of the Appeal Book. Rule 62.21(6) provides that an 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. One of NAV Canadas grounds of appeal is that the application judge erred in law in dismissing its motion to adduce fresh evidence. While Rule 62.13 makes no provision for the inclusion in the Appeal Book of the documents found at Tab 6 (Notice of Motion) and Tab 8 (decision on motion), they should be readily available to the justices hearing the appeal and the Appeal Book is well suited for that purpose. However, unlike Tabs 6 and 8, Tabs 11 and 12 feature documents that are evidential in nature, and the case has not been made for the exercise of my discretion under Rule 62.22(1)(c) in favor of their inclusion in the Appeal Book. What role, if any, the affidavits included under Tabs 11 and 12 should play is a matter for consideration and determination by the panel charged with the disposition of the appeal. It goes without saying that the Appeal Book and the record on appeal are distinct (see Stewart v. Workplace Health, Safety and Compensation Commission (N.B.)) reflex, (1996), 177 N.B.R. (2d) 369 (C.A.), [1996] N.B.J. No. 226 at paras. 1, 8-9, Hoyt, C.J.N.B.).

[8]

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[9]

In the result, I order NAV Canada to file and serve a revised Appeal Book that conforms with these reasons for judgment. As indicated at the hearing, the documents under Tabs 6 and 8 should appear at the end of the Appeal Book under separate tabs.

151. Because of the disruption of the looming possible eviction of the Intended Appellant from the Leased premises, the Intended Appellant is unsure if the Intended Appellant will be able to provide a copy of all the documents required for a proper hearing of the Appeal, hence the request for the Courts assistance in the matter. 9. Courts declaration of Existing Tenancy 152. The New Brunswick Residential Tenancies Act, S.N.B. 1975, c. R-10.2, Section 2 provides that 2 Except where otherwise specifically provided for in this Act, this Act applies to tenancies of residential premises and tenancy agreements respecting such premises, (a) notwithstanding the Landlord and Tenant Act or any other Act, agreement or waiver to the contrary; The Residential Tenancies Act, S.N.B. 1975, c. R-10.2 applies to tenancies such as the one of Intended Appellant Andr Murray of residential premises such as 29 and 31 Marshall Street, Fredericton, New Brunswick and Tenancy agreements respecting such premises such as the one the Defendant has produced for the Honorable Court to consider. 153. The Plaintiffs, where aware of the Lease, claimed by the Defendant Andr Murray. Sections 9(5) and 9(7) Residential Tenancies Act, S.N.B. 1975, c. R-10.2 clearly state that, the possession of the premises by the tenant creates a tenancy agreement furthermore a landlord and a tenant who entered into a tenancy agreement and who do not sign a Standard Form of Lease are deemed to have done so and all provisions of this Act and the Standard Form of Lease apply. Even if the Tenancy of the Intended Appellant was terminated, pursuant, to the impugned NOTICE OF TERMINATION OF TENANCY AND LEASE Dated May 20, 2010, possession of the premises by the Tenant Intended Appellant, created a tenancy agreement and furthermore a Landlord and a Tenant who entered into a tenancy agreement and who do not sign a Standard Form of

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Lease are deemed to have done so and all provisions of this Residential Tenancies Act and the Standard Form of Lease, nevertheless apply. 154. According to Residential Tenancies Act, S.N.B. 1975, c. R-10.2 section 26(2) A rentalsman, in addition to carrying out any other duties or exercising any other powers under this Act or the regulations, including section 26(2) (l) shall act under the provisions of this Act with respect to the termination of tenancies. The responsibility of termination of tenancies is the duty of the Rentalsman, and the most appropriate action for the Plaintiffs to take, to cause a termination of the tenancy of Intended Appellant Andr Murray, would be through the appropriate steps through the Rentalsmen, which to date, they have most conspicuously not done. 155. At this time the Intended Appellant is a Tenant in good standing, payments of the agreed upon rental fees are made to the Landlords Bank account the first of each month including this one, November 2011, regardless of the impugned termination of tenancy which the Learned Trial Judge did erroneously validate, the Landlord Betty Rose Danielski has and is still accepting Residential Tenancy Rental payments to her designated account. The Acceptance by a Landlord of Rental payments is acceptance of a continuation of the previous lease, and further alternatively, in the very least establishes a new and binding tenancy agreement. The Intended Appellant does have a Residential Tenancy Lease which is protected by the Residential Tenancy Act of New Brunswick. 156. The Intended Appellant Andr Murray asks the Court to recognize and declare this relationship, between Tenant and Landlord and further the Rights associated with security of tenure, regarding a Tenant in good standing.

ALL OF THIS respectfully submitted at the City of Fredericton, New Brunswick, this . . . . day of . . . . . . . . . . . . . . . , 2011.

______________________________ ANDR MURRAY 61

INTENDED APPELLANT

D PART VI ORDERS SOUGHT (d) a concise statement of the relief sought by the party. a) That pursuant to Rule 62.03(5) this Honorable Court grants Leave to Appeal the decision, of Justice Zol R. Dionne Dated October 21, 2011. b) That pursuant to Rule 62.26 of the Rules of Court, this Court does grant a stay of proceedings, until the matter regarding the decision being appealed, is finally decided upon by the Court of Appeal. c) This Court does grant an extension of time to issue and serve a Notice of Appeal, d) That this Court grants leave to file a Appellants brief longer than 35 pages because of the complexity of the five motions included in the decision being appealed before the Court of Appeal. e) That this Court Order that the respective parties file a Appellants Appeal Book and a Respondents Appeal Book, containing the Affidavit material for the Appeal which was filed by each party originally. f) This Court does recognize the Intended Appellant as a Residential Tenant of 31 Marshall Street, Fredericton New Brunswick and does declare the Rights of Intended Appellant associated with security of Tenure, regarding a Tenant in good standing, pursuant to the Residential Tenancy Act. Furthermore, Termination of tenancy must be according to the Residential Tenancies Act, SNB 1975, c R-10.2. g) That the INTENDED RESPONDENT pay costs of the within Motion,

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h) Such further and other relief as to this Honorable Court may appear just.

Cost Orders in favor of self-represented litigants 45. The Defendant 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 Rule 59.01 in a manner favorable to the selfrepresented Defendant. 46. For convenience of this Honorable Court reproduced below Rule 59.01, of the Rules of Court as follows: 59.01 Authority of the Court (1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid. 47. As similarly stated above in McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may make the similar observations and consider before awarding costs with regard to the blatantly frivolous, irresponsible and callous behavior, of Plaintiffs in this matter, further, the nature of the countless irregularities in Court Document Process Service contributing to the improper and inaccurate evidence provided by counsel for the Plaintiffs at the subject October 20, 2009 Hearing, before this very Court. 48. Following the lead of the above Court in McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may find it appropriate to Order the Plaintiffs to pay costs throughout, which may be similarly fixed at $5,000, in addition to all reasonable disbursements. 49. 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

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work ordinarily done by a lawyer retained for litigation, and that as a result, self represented litigants incurred an opportunity cost by foregoing remunerative activity such as the self represented Defendant before this Court. It is abundantly clear that the self represented Defendant in this matter devoted copious amounts of time over many months of his life and exhaustive effort to present interesting and thought-provoking legal argument ordinarily expected of a lawyer, further is evidenced by the quality and voluminous material presented for consideration to this Honorable Court. 50. 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. 51. As stated in Fong, et al v. Chan, et al, 1999, supra, as a matter of principle, it seems difficult to justify a categorical rule denying recovery of costs by self-represented litigants. 52. As stated above in Fong, et al v. Chan, et al, 1999, supra, paragraph 22 modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. Remaining consistent with the above here within paragraph trial judges may use their discretion to award costs to self-represented litigants. 53. Self-represented lawyers (members of Law Society) are entitled to indemnity on the time is money or opportunity cost rationale and it is difficult to appreciate why the opportunity cost rationale should not be applicable to self-represented litigants, such as the Defendant in this matter, before this Honorable Court. 54. Self-represented litigants must possess skills for which they customarily are remunerated on their regular work week basis, and if the law is prepared to compensate lawyers for loss of time when devoting their efforts to their own cause, the same

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entitlement should extend to self-represented lay litigants who are able to demonstrate the same loss. 55. Costs may be awarded to those lay litigants who can demonstrate devoted time and effort to do work, which ordinarily would have been done by a lawyer retained for same litigation, further, it is consistent that lay litigants incurred an opportunity cost by foregoing their usual remunerative activity; awarding of additional Costs are a useful tool of the Court to encourage settlements and or to discourage or sanction inappropriate behavior, as the case may be. 56. Having considered the here within above provided arguments for cost, this Honorable Court may find it appropriate to Order the Plaintiffs to pay costs throughout, in addition to all reasonable disbursements.

Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co., 1990 CanLII 5494 (AB QB)
http://canlii.ca/t/28nbm [4] ...In effect, the without prejudice doctrine prevents the contents of an offer for compromise or settlement of an action being given in evidence against a party as an admission of liability. The rule applies to communications sought to be adduced as evidence at trial or examined during discovery: Rush & Tompkins Ltd. v. Greater London Council, [1988] 3 W.L.R. 939 at 947 (H.L.), reversing [1988] 2 W.L.R. 533, [1988] 1 All E.R. 549 (C.A.); Rabin v. Mendoza & Co., [1954] 1 W.L.R. 271, [1954] 1 All E.R. 247 (C.A.); Abrams v. Grant (1978), 5 C.P.C. 308 (Ont. H.C.). Four rationales for the without prejudice rule have been endorsed by [5] various authorities. The first, propounded by Professor Wigmore, interprets the rule as a reflection of the fact that a partys willingness to compromise or settle a claim is not necessarily grounded in the belief that the claim is well founded: 4 Wigmore on Evidence, 3rd ed. (1974), at p. 36. The communications are, therefore, excluded as irrelevant, failing to support an inference of admitted liability. Second, it has been suggested that the courts should not lend their approval to one party prejudicing an opponent by using admissions made by an opponent during bona fide efforts aimed at settling the action: Rabin v. Mendoza & Co., at p. 249 per Romer L.J. Third, the inability to compel discovery on or adduce evidence of admissions made during negotiations for compromise has been said to be founded on an express or implied agreement between the

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parties: Whiffen v. Hartwright (1848), 11 Beav. 111, 50 E.R. 759; Rabin v. Mendoza & Co., at p. 248 per Denning L.J.; Re River Steamer Co; Mitchells Claim (1871), 6 Ch. App. 822. Finally, the fourth rationale for the without prejudice doctrine is public policy. It has been held that parties should be encouraged to settle their disputes without litigation; to expose admissions made during negotiations for settlement would undermine this policy objective: Cutts v. Head, [1984] 1 Ch. 290 at 306, [1984] 2 W.L.R. 349, [1984] 1 All E.R. 597 (C.A.); Rush & Tompkins Ltd. v. Greater London Council, supra, at p. 942. In McLeod v. Pearson, reflex, [1931] 3 W.W.R. 4, [1931] 4 D.L.R. 673 (Alta. T.D.), Ford J. acknowledged these existing theories said to underlie the without prejudice rule but expressly refrained from adopting a single rationale upon which to base a decision.

NATURAL JUSTICE

NATURAL JUSTICE
What are the rules of natural justice? The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. A word used to refer to situations where audi alteram partem (the right to be heard) and nemo judex in parte sua (no person may judge their own case) apply. The principles of natural justice were derived from the Romans who believed that some legal principles were "natural" or self-evident and did not require a statutory basis. These two basic legal safeguards govern all decisions by judges or government officials when they take quasi-judicial or judicial decisions. Three common law rules are referred to in relation to natural justice or procedural fairness. The Hearing Rule This rule requires that a person must be allowed an adequate opportunity to present their case where certain 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. When conducting an investigation in relation to a complaint it is important that the person

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being complained against is advised of the allegations in as much detail as possible and given the opportunity to reply to the allegations. The Bias Rule 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, investigators and 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. Even where no actual bias exists, investigators and decision-makers should be careful to avoid the appearance of bias. Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation. The Evidence Rule The third rule is that an administrative decision must be based upon logical proof or evidence material. Investigators and decision makers should not base their decisions on mere speculation or suspicion. Rather, an investigator or decision maker should be able to clearly point to the evidence on which the inference or determination is based. Evidence (arguments, allegations, documents, photos, etc..) presented by one party must be disclosed to the other party, who may then subject it to scrutiny.

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