Part II - FACTS A concise statement of all relevant facts with such references to the evidence as may be necessary; 1.

May this please the Honorable Appellant Judge, the Intended

Appellant relies upon this Motions supporting Affidavit, in combination with the herein below provided excerpts and examination of Madame Justice Clendenings Decision which are demonstrative of Reasonable Apprehension Bias, errors in misapprehension of proper application of law, errors in abuse of Court procedure by contradicting the Learned Trial Judges position on matters concerning jurisdiction only to then find jurisdiction thereafter when none was before, a most confusing practical experience followed by Madame Justice Clendenings Decision which is reflective of a Court not governing itself according the established decorum and where discretion of the judge may be considered it rather appears to instead be discrimination against Andre Murray by unilateral rulings by Madame Justice Clendening . The Honorable Appellant Judge upon consideration of these herein matters will undoubtedly discover throughout, reasonable apprehension of bias must be self-evident by such behavior as herein above illustrated as the Madame Justice Clendening erroneously insisted and then later in her own written decision attempted to justify her misconduct as we see the Learned Trial Judge awkwardly allude to excerpts from perhaps a transcript although there are no quotations provided, furthermore no such statements existed in the context of her original statements as they are now cherry picked to serve another purpose. Paragraph 1 of her decision clearly states that this would effect on the Fredericton Police Force, despite this fact which was made abundantly clear and agreed upon by the Intended Appellant and the Judge, that the Brief would be confined to nothing other than matters regarding the Fredericton Police

Force we see the Learned Trial Judge promoting conflict by inviting Debora Lamont for the New Brunswick Police Commission to respond. 2. Regarding paragraph 2 the Learned Trial Judge continues in her

decision attempting to try to convince the reader that an Order was given. This again is another example of erroneous illogical thought as the normal procedure whenever a Order is issued by the Court is that an Order is indeed drafted signed and issued, this was not directed by the Court that such an Order would be drafted nor did the eager to please the Court lawyer Debora Lamont just to her feet offering to prepare a draft of the Order for the Honorable Court to sign. Consequently it is clear that no one in the Courtroom believed this offer of the Intended Appellant to prepare a Brief had resulted in an Order. The normal jurisprudence did not follow, this chimerical position of the Learned Trial Judge, that an Order was given is a departure from reality, it is an erroneous thought not found in truth. 3. Reason number 3 of the Learned Trial Judge decision is completely

irrational and inconsistent with the direction that the Court had itself had established by agreeing to first of all accept the post hearing brief as offered by the Intended Appellant, to thereafter impose Rules of Court regarding time limitations inter alia thereafter the Learned Trial Judge in the same breath as found in paragraph 3 contradicts that there is a any Rules of Court despite this contradiction in terms the Learned Trial Judge did indeed impose sanctions according to Rules of Court; Further to the reasons found within paragraph number 3 of the Learned Trial Judges decision, the Judge admits that she simply refused to accept and read a post hearing brief only because it was a privilege granted (this is illogical) despite it having been laboriously studied

and prepared sincerely seeking remedy (another example of reasonable apprehension of bias). 4. Furthermore, the reasons found within paragraph number 4 of the

Learned Trial Judges decision, cannot be anything other than a perfect example of reasonable apprehension of bias as the Judge continues to exhibit, scrutiny of the Intended Appellant, despite being a self-represented litigant; 5. Furthermore, reasons found within paragraph number 5 of the

Learned Trial Judges decision, again the Learned Trial Judge attempts top pursued the reader that an order was given when the word Order was never used on the record, nor was the word Order ever found on a drafted subsequent copy thereof; This is entirely false assertion to continue in such a fashion would bring the administration of justice into disrepute; The Learned Trial Judge did not take judicial notice which is a reversible error furthermore, and evidently intentionally attempted to avoid providing justice. 6. Furthermore, reasons found within paragraph number 6 of the

Learned Trial Judges decision again the Learned Trial Judge continues attempting to convince the reader that an Order existed which is false, there is no proof thereof. Despite this lack of evidence of an Order paragraph 6 is interesting as we see the Learned Trial Judge laboring over whether or not Orders can or cannot should or should not be re-issued this dialogue can be nothing other than obfuscation. Are the readers to believe that the judge has dispensed with discretionary, furthermore, will no longer take judicial notice, I think not. This is an isolated incident and a blatant refusal to cooperate and find remedy in favour of Andre Murray. This is an absolute and utter denial of Justice.

7.

Furthermore, reasons found within paragraph number 7 of the

Learned Trial Judges decision, it does occur within the reasonable mans mind that a decision made and any further evidence is certainly late if not entirely inadmissible; this paragraph number 7 the Intended Appellant does not comprehend its reason for existence although there is a detectable nasty tone, which should not be overlooked by the Appellant Court, as further evidence of bias. 8. Furthermore, reasons found within paragraph number 8 of the

Learned Trial Judges decision, the awarding of Cost to the Police Commission is entirely unwarranted as the Motion to file a Post hearing Brief did not, (as had been agreed between the Applicant and the Learned Trial Judge) and further was agreed would be confined to matters concerning only the Fredericton Police Force; who are not clients of the Lawyer Debora Lamont, who represents New Brunswick Police Commission and not the Fredericton Police Force. There is such an evident conflict of interest here, it is incomprehensible as to why in the first place Debora Lamont would have ever been required to see the subject Post Hearing Brief , furthermore, why would a lawyer who does not represent the Fredericton Police force have to appear for the review of the Post Hearing brief, when the substance thereof would not contain any reference to Debora Lamonts clients the New Brunswick Police Commission, further, notable, which a copy thereof had been previously provided for perusal by lawyer Debora Lamont. No need for Lawyer Debora Lamont to appear for the matter of the Post hearing brief whatsoever, since cost follow merit, therefore no merit = no costs. PART III - ISSUES

A concise statement setting out clearly and particularly in what respect the order or decision appealed from is alleged to be wrong; The appellants grounds for this appeal are as follows: Hearing Rule 9. The Intended Appellant relies upon Natural Justice and procedural

fairness which requires administrators adhere to a fair decision-making procedure. The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side'). The Court rendered a decision without fully hearing the Intended Appellant, by: egregious and in this particular circumstance morally reprehensible is Madame Justice Judy Clendening and her insistence to preside over matters that concern Andre Murray since it has become clear Madame Justice Judy Clendening is not capable of impartiality and nor is she capable of conducting herself in an unbiased and or reasonable manner concerning Andre Murray in fact has outrageously refused to hear a Motion requiring that Madame Justice Judy Clendening recuse herself from further hearings concerning Andre Murray, instead thereafter demonstrated reasonable apprehension of bias by refusing to recuse herself and insisted Madame Justice Clendening despite the objections of the Intended Appellant in a load than necessary and threatening tone uttered the words I Order you basically to continue to experience unfair hearing and judgments by immediately presenting argument in other matters not related to the recusal. The results of which were horrendous as the rulings were entirely unjust as was expected.

 10.

refusing to accept the Intended Appellants Post Hearing Brief;

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

2005 FC 416 (CanLII), The Court did comment on the Right to be heard at paragraph 18 and 19 as follows: RIGHT TO BE HEARD [18] Perhaps there are those who have to be reminded that the right to be heard is at the heart of our sense of justice and fairness. ...That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca's Medea, enshrined in the scriptures, mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden. [Footnotes omitted] de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed) (London: Sweet & Maxwell, 1995), pp. 378-379. [19] The reference to the Garden of Eden is a reference to Dr. Bentley's case (The King v. the Chancellor, & c., of Cambridge, (1723) 1 Stra. 557). This is what Byles J. had to say about it in Cooper v. The Wandsworth Board of Works (1863), 143 E.R. 414 at p. 420: .. The judgment of Mr. Justice Fortescue, in Dr. Bentley's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says, "The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence...

11.

The right to be heard is at the heart of our interpretation of justice and

fairness, further the laws of God and man both give a party an opportunity to make his defence, if he has any. This Hear the Other Side most important, consequential, or influential dictum in law and Rule requires that a person must be allowed an adequate opportunity to present their case where and when definite interests and rights may be adversely affected by a decision-maker. To ensure that these rights are respected, the deciding authority must give both the opportunity to prepare and present evidence and to respond to arguments presenting by the opposite side. The herein subject Intended Appellant attempted to present to the Learned Trial Judge, for consideration, a Post Hearing Brief which provided a coherent and extensive argument, case law and supporting authorities, so that the Court would have this beneficial tool, to consider when contemplating the requested remedy. This subject Post Hearing Brief was refused by the learned trial judge, violating the Intended Appellants right to be heard, which must be considered erroneously irrational and or alternatively, as the case may be, explainable only as a reasonable apprehension of bias.

12.

The Appellant relies, that Natural Justice and procedural fairness

requires administrators adhere to a fair decision-making procedure. The learned trial judge erred in law in not recognizing the principal of law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side'). This Maxim, in law means: no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person, in this case to fully hear Intended Appellant required the Court to consider a Post Hearing Brief, an essential component of the Intended Appellants argument, moreover a valuable reasonably beneficial tool to

arriving at a relevant requested and necessary decision. Fair decision-making procedure, would have been to accept the Intended Appellants Post Hearing Brief and consider same before rendering a hopefully fair and balanced decision, based therefore on being well informed and abreast of all relevant facts and authorities.

13.

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

(CanLII), [2002] 1 S.C.R. 249, the Supreme Court of Canada confirmed at paragraph 35, that the right to be heard is part of the Courts obligation to act fairly, however, the duty of an administrative body to adhere to that right is to be decided on a case by case analysis: The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority (see Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311; Cardinal v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643, at p. 653; Baker, supra, at para. 20; Therrien, supra, at para. 81). Within those rules exists the duty to act fairly, which includes affording to the parties the right to be heard, or the audi alteram partem rule. The nature and extent of this duty, in turn, "is eminently variable and its content is to be decided in the specific context of each case" (as per L'Heureux-Dub J. in Baker, supra, at para. 21)

14.

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

J.A. stated the following regarding a matter where the Judge was refusing to consider a parties application to cross-examine the deponents of the affidavits, consequentially, the motion judge failed to exercise the Courts discretion judicially provided here below from paragraph 13 to through 16 as follows:

[14] I am of the view that, in refusing to consider Mr. Munns application to cross-examine the deponents of the affidavits, the motion judge failed to exercise her discretion judicially. Mr. Munn had a right to be heard on that issue, and procedural fairness required the motion judge to hear him. It is only after hearing Mr. Munns arguments in support of his request to cross-examine and any arguments made in reply, that the motion judge would have been able to judicially exercise the discretionary powers conferred by Rule 39.03. [15] In my view, the appeals should be allowed on the common ground raised in both Notices of Appeal that allege that the motion judge erred in the exercise of the discretion conferred by Rule 39.03. It follows that the judges order striking out those portions of the Plaintiffs Statement of Claim which assert a claim against the Defendant, Edward B. Rust Jr., must be set aside. 15. In refusing to hear the Intended Appellants recusal Motion, refusing

to consider Intended Appellants Post Hearing Brief for disclosure under RTIPPA, the motion judge failed to exercise her discretion judicially. Intended Appellant had a right to be heard on the issues before the Court, and procedural fairness required the motion judge to hear him. It is only after considering the above, that the motion judge would have been able to judicially exercise the discretionary powers to grant or dismiss Intended Appellants Motion on its merits. Consequentially, without fully considering the Intended Appellants material, the entire merits of the matter cannot reasonably be deemed to have been considered.

16.

The Learned Trial Judge did commit reversible error, by refusing to

hear the Intended Appellant because of, but not limited to the following: Applicant having offered to prepare a Post hearing Brief did so provide said Brief at subsequent subject Hearing. The Learned Trial Judge upon hearing the matter at that predetermined date did chimerically

refuse to accept the prepared Post Hearing Brief, erroneously claiming therefore that the Court had Ordered the Brief to be prepared no later than the 12th of September. This is false. Point is a post hearing brief was offered by the Intended Appellant in the interest of assisting the Learned Trial Judge to comprehend what the Judge on the record confirmed she was not aware of, further, where the jurisdiction is found that the Court may issue Orders in the interest of finding remedy, as in this case. As herein above stated; Madame Justice insisted that an Order had been issued when indeed no order had ever been issued, instead there was an offer by the Intended Appellant and an acceptance by the Learned Trial Judge that further research into the subject matter would assist the learned Trial Judge. This is an example of misapprehension by the Learned Trial Judge leading to consequential errors in jurisprudence and application of the law. Reasonable apprehension of bias together with misapprehension of her duties, as it is the duty of as a presiding judge to provide a fair environment that remedy may be found; however, Madame Justice Clendening erroneously believed that the Post Hearing Brief, which would reasonably no longer address matters concerning the New Brunswick Police Commission, however, despite this fact, Madame Justice Clendening insisted that the lawyer Debora Lamont (hired to represent the Police Commission) must now receive the subject Post Hearing Brief that Debra Lamont should then argue why Madame Justice Clendening should not grant Orders as requested by Andre Murray pertaining to the Fredericton Police Force; evidently Debora Lamont was instructed to argue that, which would not provide

10

remedy, (in no way shape or form) not having any effect upon Debora Lamonts clients, this is difficult if not impossible to comprehend as to why Madame Justice Clendening would wish to create conflict and therefore argument between a lawyer not retained to deal with matters other than, (in this case) Debora Lamonts Clients interest. Without considering this essential component of the Intended Appellants argument, the Learned Trial Judge did not fully hear the Intended Appellant, therefore the Intended Appellants essential Right to be Heard was violated. The Learned Trial Judge repeatedly interrupted and stopped the Intended Appellant from expressing the idea and information the Intended Appellant believed was necessary to prove the Intended Appellants cause. The Court should consider the facts, evidence, argument and authorities before rendering a decision. To not allow the Intended Appellant to finish a though or statement on the record is a violation of the most basic right to be heard. How can one be heard when they are being interrupted. Not hearing the most important Court File Date Stamped copy (April 17, 2012) of a recusal Motion as a preliminary Motion first, before any other matter April 27, 2012, therefore is a violation of the Intended Appellants essential Right to be Heard;

In the alternative, not considering an oral presentation as a alternative of the subject recusal Motion, 2012 therefore is a violation of the Intended Appellants essential Right to be Heard;

11

Bias Rule as Applicable 17. The Learned Trial Judge failed to comprehend the facts and

arguments as presented by the Intended Appellant and instead pursued only the assertions as presented by the Intended Respondent, this subject predisposition of the Learned Trial Judge toward a particular result, is such that a reasonable apprehension of bias is raised. Intended Appellant contends a reasonable apprehension of bias by the fact that the learned Trial Judge only accepted and or allowed argument and evidence which favored the Intended Respondents position, further the learned Trial Judge made questionable remarks during the hearing to the effect that the Learned Trial judge had pre-determined the outcome; furthermore obviously erroneous statements are found within the Learned Trial judge decision which reasonably must be based on incorrect information, contrary to the facts of the case. The Court did refuse to accept affidavit evidence filed by the Intended Appellant and instead relied on no evidence whatsoever of the Intended Respondent. The legal effect of this one sided uncontested affidavit material is that the Intended Appellants claims were confirmed/admitted to be true by the Intended Respondent.

18.

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

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

12

19.

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

avoid the appearance of bias. When The Learned Trial Judge failed to understand the facts and arguments as presented by the Intended Appellant, and instead pursued only the arguments and assertions as presented by the Intended Respondent, this predisposition of the Learned Trial Judge toward a particular result (favoring Intended Respondents position or cause), is such that a reasonable apprehension of bias is raised. The Intended Appellant contends that a reasonable apprehension of bias arose by the fact that the learned Trial Judge only accepted argument and evidence which favored the Intended Respondents position, further the learned Trial Judge made obviously erroneous statements within the decision which reasonably must be based on incorrect information, contrary to the facts of the case. 20. In R. v. S. (R.D.), [1997] 3 S.C.R. 484, the header of the Courts

decision sums up the case before the supreme Court and provide relevant insight into the reasonable apprehension of bias displayed by the actions and assertions of the Learned Trial Judge, the relevant section of R. v. S. (R.D.), [1997] 3 S.C.R. 484 is provided in the following: (2) Reasonable Apprehension of Bias Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The courts should be held to the highest standards of impartiality. Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. The trial will be rendered unfair if the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer. Judges must be particularly sensitive to the need not only to be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin.

13

If actual or apprehended bias arises from a judges words or conduct, then the judge has exceeded his or her jurisdiction. This excess of jurisdiction can be remedied by an application to the presiding judge for disqualification if the proceedings are still underway, or by appellate review of the judges decision. A reasonable apprehension of bias, if it arises, colours the entire trial proceedings and cannot be cured by the correctness of the subsequent decision. The mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from the judges other words or conduct. However, if the judges words or conduct, viewed in context, do not give rise to a reasonable apprehension of bias, the findings of the judge will not be tainted, no matter how troubling the impugned words or actions may be. The apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. The test is what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -conclude. This test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold. The reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. The jurisprudence indicates that a real likelihood or probability of bias must be demonstrated and that a mere suspicion is not enough. The existence of a reasonable apprehension of bias depends entirely on the facts. The threshold for such a finding is high and the onus of demonstrating bias lies with the person who is alleging its existence. The test applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic.

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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. 21. The Learned Trial Judge should be held to the highest standards of

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

22.

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

23.

The basic interests of justice require that the appellate courts,

notwithstanding their deferential standard of review in examining factual determinations made by lower courts, retain some scope to review that determination given the serious and sensitive issues raised by an allegation of bias. Impartiality can be described as a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to particular issues. Whether a decision-maker is impartial depends on whether the impugned conduct gives rise to a reasonable apprehension of bias. Actual bias

15

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.

24.

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

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

25.

The fact that the Learned Trial judge dismissed Affidavit material, of

which testimony included, a history of behavior which substantiated the identity and behavior of certain individuals, the identity of which the, Intended Appellant was attempting to have proven by the disclosure of information pursuant to RTIPPA. Reasonable apprehension of bias, that which has arisen in this matter,

26.

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

27.

Reasonable apprehension of bias of the Trial Judge may be summed

up preliminarily as this;

16

The Learned Trial Judge seems to have predetermined the outcome of the matter before fully considering all the material available for consideration;

The Learned Trial Judge displayed a condescending attitude towards the Intended Appellant through the many hearing that the Intended Appellant has been before this particular Court;

The Learned Trial Judge displayed intolerance towards the Intended Appellant;

The Learned Trial Judge seemed to be determined or predisposed to a particular result, which was to rule against the interests of the Intended Appellant

28.

Intended Appellant verily believe, the Learned Trial Judge failed to,

without prejudice, comprehend the facts and arguments as presented by the Intended Appellant and instead pursued only the assertions as presented by the Intended Respondent, this subject predisposition of the Learned Trial Judge toward a particular result is prejudicial Intended Appellant, is such that a reasonable apprehension of bias is raised.

29.

The Learned Trial Judge (as earlier stated herein above) had already

refused to hear a most significant Oral Motion demanding that Honorable Madame Justice Clendening recuse herself from presiding over any further matters regarding the Intended Appellant; this Recusal Motion occurred at the outset of the Court convening and was raised as a preliminary matter at the April 27, 2012, hearing of a Motion to grant an extension of time for filing and serving a Post hearing brief relevant to the with Referral Matters; Madame Justice Clendening immediately acknowledged her prior awareness of my

17

intentions that day and indicated she had anticipated me bringing this matter to bear, nevertheless the Court however would not recuse herself and the Learned Trial Judge insisted that she was seized of the matter, consequentially because of this claim (to being seized of the matter) Madame Justice Clendening insisted that she must proceed with subject alternative Motion Hearing regarding, extension of time to file a Post hearing Brief.

30.

The learned Trial Judge, made statements at the August 11, 2011,

hearing, which indicated that the Learned Trial judge had pre-determined the outcome of the hearing; furthermore obviously erroneous conclusions and subsequent statements are found within the Learned Trial judge decision which reasonably must be based on incorrect information and or misapprehension of the facts of the case.

31.

The Intended Appellant did file the Intended Appellants thoroughly

researched and prepared Brief and a carefully presented oral argument, alternatively the Intended Respondent requested an adjournment of the matters to study the RTIPPA, then did not even provide a brief, or affidavit material and therefore contributed nothing to the matters before the Honorable Court, the Court disproportionately awarded costs of $1000 to the Intended Respondent, (when the RTIPPA wording actually states cost are not to be awarded against an applicant) all of these facts are such that the Intended Appellant believes a reasonable apprehension of bias is raised.

32.

The Applicant has had many issues with this particular Judge over 5

previous Hearings, including this decision being appealed. The conduct of this

18

Judge, at a previous hearing was been sufficient to force the Intended Appellant to File a Complaint to the Canadian Judicial Council.

33.

The Court ordered costs of $1000 against Intended Appellant,

(Applicant in that matter), in a April 30, 2012, oral decision and subsequent written decision, even though the only reason the Motion for the Court to accept a Post hearing Brief being heard, was because Lawyer Debra Lamont claimed the Court should not accept the Post Hearing Brief, because the subject brief was technically filed and served 7 days later than stated by the Court, which morally speaking must be Debra Lamonts obstruction of justice.

34.

At the April 27, 2012, hearing Justice Clendening continuously

interrupted intended Appellant, thereafter, Justice Clendening actually would rebut, claiming the reverse was true, that Intended Appellant had interrupted the Learned Trial Judge, further Justice Clendening did reprimand the Intended Appellant, words to the effect that the Intended Appellant should stop crying about matters which the Intended Appellant believes are unfair , Justice Clendening in the most unprofessional and revealing comments were then withdrawn after being challenged by the Intended Appellant, this of course is abuse of process by the presiding Judge herself and once again reveals reasonable apprehension of bias. Below is an excerpt from the CD of recording of April 27, 2012: 12:01:22 PM the Court: dont come in here crying to me 12:01:35 PM the Court: So, Dont cry to me, that they are being difficult with you

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12:01:41 PM Andre Murray: ok I object to being referred to as crying to you, and I dont believe that you should use that language with me please, I ask you to refrain from that. What I 12:01:51 PM the Court: Mr. Murray when you stop referring to people in the way that you do, calling them liars, and so on, then you may have some, way to come before this court and suggest, crying is just a statement, its got nothing else, it means nothing more than you are complaining about a process, that is all it means, so if you object to that I will withdraw the word crying 35. References to the April 27, 2012 hearing are relevant because that

hearing occurred one week before the Learned Trial Judge rendered the May 4, 2012, decision being appealed, both matters were related, both sharing Court File Number: F/M/1/11 and F/M/22/11.

36.

The judge stated in the may 4, 2012 decision that the Intended

Appellant is argumentative, which reveals reasonable apprehension of bias. A Court room is a place for argument between parties, but what should be unnecessary is that a party would have to argue with the Court to attempt to receive the most basic procedural exercise, that would normally be afforded a party without having to argue for it with the Court. This demonstrates reasonable apprehension of bias.

37. a.

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

sworn testimony by affidavit and exhibits, with no reasonable grounds given and no disagreement of their content; b. The Solicitor acquired by the NEW BRUNSWICK POLICE

COMMISSION, has not been hired to represent the interests of the

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FREDERICTON POLICE FORCE, therefore there is no reason for this Court to receive representations from the Solicitor who is acting in the interest of the NEW BRUNSWICK POLICE COMMISSION, regarding this issue of an investigation into the abuse and malicious manipulation of the Fredericton Police Force services, regarding the volume and substance of the telephone reports and complaints containing erroneous and provocative allegations against Intended Appellant and most importantly an order disclosure of same investigation to the Applicant. This objection which was raised by Solicitor Debora Lamont is unfounded and contrary to the interest of Justice, (only profits the Solicitor, at the expense of both New Brunswick Police Commission financially and the Intended Respondent in loss of opportunity to gain relief from the Court so sorely needed) for the Court to condone this behavior reveals a reasonable apprehension of bias.

38.

Error in Law The Intended Appellant asserts that the trial judge made a number of

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

39.

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

direction as found expressed in the New Brunswick Rules of court Rule 1.03

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(2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits.

40.

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

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

41. follows:

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

abuse of discretion. 1. An adjudicator's failure to exercise sound, reasonable, and legal decision-making. 2. An appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence. 42. The learned Trial Judge erred in law, in irregularly applying the

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

43.

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

2005 FC 416 (CanLII) HARRINGTON J. stated at paragraph 1 as follows:

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[1] To be "capricious" is to be so irregular as to appear to be ungoverned by law 44. 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.

45.

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: [29] determining whether the decision-making process in this case provided adequate justification, transparency, and intelligibility in order to render the decision reasonable,.. .. [42] Finally, the Court in Dunsmuir (at para. 47) noted that, although the primary focus of judicial review for unreasonableness is the justification, transparency and intelligibility of the decisionmaking process, a reviewing court should also consider whether the outcome itself is unreasonable. 46. Reference: 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: 63 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.

23

47.

Intended Appellant asserts that the trial judge made a number of

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

48.

The Applicant believes that without the Courts intervention, the

Intended Appellant will continue to be harassed, harmed, and injured, furthermore, it is plain and obvious after 6 years of this abuse at the hands of members of FREDERICTON POLICE FORCE (three separate arrests without charge, including and or in some cases involving several illegal entries and searches of the Applicants Residential Marshall Street Property) that the Fredericton Police Force have no intention to uphold their Duty, to act to protect the Intended Appellant.

49.

To assist the Honorable Court to come to a decision regarding the

Courts Jurisdiction and Discretion to grant Intended Appellant requested Order, requiring for that reason an investigation into abuse and malicious manipulation of the FREDERICTON POLICE FORCE services, further, determining the volume and substance of telephone reports and complaints containing erroneous and provocative allegations against Andr Murray (Intended Appellant in this matter) and further and most importantly that this

24

Honorable Court Order disclosure of same investigation to the Intended Appellant.

50.

The Intended Appellant did review and define the relevant sections of

the law as the Intended Appellant understands them as follows: Judicature Act, R.S.N.B. 1973, c. J-2 Rules of Court of new Brunswick 1.02 Application, 1.03 Interpretation (1) (2) and 1.08 Orders on Terms Interpretation Act, R.S.N.B. 1973, c. I-13 section 17 Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 Section 2 and Section 66 The Police Act, SNB 1977, c P-9.2 section 12 Expressio Unius Est Exclusio Alterius definition: Latin: the expression of one thing is the exclusion of the other. Leges posteriores priores contrarias abrogant. Latin: Subsequent laws repeal prior conflicting ones.

51.

When considering Section 2 of the Right to Information and

Protection of Privacy Act, S.N.B. 2009, c. R-10.6 as it relates to the Applicant, provides as follows: Purposes of this Act 2 The purposes of this Act are (a) to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act, (c) to allow individuals a right of access to records containing personal information about themselves in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act, 52. Furthermore, Section 66 of the Right to Information and Protection of

Privacy Act, S.N.B. 2009, c. R-10.6 provides for the following

25

Decision of The Court of Queens Bench 66(1) (c)If a matter is referred to a judge of The Court of Queens Bench of New Brunswick under subsection 65(1), the judge shall hold a hearing and, (a) where the matter is referred by an applicant, (i) if the head of a public body denied a request for information in whole or in part, may order the head of the public body to grant the request in whole or in part, and (c) may make any other order that is, in the opinion of the judge, necessary 53. Furthermore applicable Rules of Court of New Brunswick: 1.02 Application These rules apply to all proceedings in the Court of Queens Bench and the Court of Appeal unless some other procedure is provided under an Act. 1.03 Interpretation (1) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Judicature Act apply to these rules. (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 1.08 Orders on Terms When making an order under these rules, the court may impose such terms and give such directions as are just. 54. Furthermore, interpretation of the four relevant statues namely: Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6 Judicature Act, R.S.N.B. 1973, c. J-2

26

Police Act, SNB 1977, c P-9.2 Interpretation Act, R.S.N.B. 1973, c. I-13 section 17

55.

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; the Intended Appellant (Applicant in that matter) was requesting the Honorable Court provide the remedies as contemplated by the drafters of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6.

56.

The following is found at legal-dictionary.thefreedictionary.com at the

following internet web address provided below: http://legal-dictionary.thefreedictionary.com/audi+alteram+partem audi alteram partem [Latin, hear the other side.] It embodies the concept in Criminal Law that no person should be condemned unheard; it is akin to due process. The notion that an individual, whose life, liberty, or property are in legal jeopardy, has the right to confront the evidence against him or her in a fair hearing is one of the fundamental principles of Constitutional Law in the United States and England. 57. It is ironic, that, if the Intended Appellant was actually a criminal then

according to natural Justice the Intended Appellant would have the right to confront the evidence against him in a fair hearing, which is one of the fundamental principles Justice adhered to in Canada. However since the Intended Appellant is in fact not a criminal and the Intended Appellant was requesting of the Courts assistance to take this alternative route, as contemplated by the drafters of Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6, to gain the information necessary for his safety inter alia, that application was unfairly denied.

27

58.

The remedy requested was in accordance with the Rules of Court, the

Right to Information and Protection of Privacy Act, SNB 2009, c R-10.6, the Judicature Act, R.S.N.B. 1973, c. J-2 and the Police Act, SNB 1977, c P-9.2.

59.

Furthermore the Applicant had argued why the Honorable Court does

in fact have the Jurisdiction to grant the relief sought according to Rules of Court, the Right to Information and Protection of Privacy Act, SNB 2009, c R10.6, and the Judicature Act, R.S.N.B. 1973, c. J-2.

60.

In closing let us review The New Brunswick Interpretation Act,

R.S.N.B. 1973, c. I-13, section 17 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. The Intended Appellant believes that in fulfillment of these stated goals, the Court should have grant the Applicants Order as requested, which in the Intended Appellants view, would be Justice, which is defined by Blacks Law Dictionary as the fair and proper administration of laws.

61.

Intended Appellant verily believe, the Learned trial judge erred in law

in not keeping with the general direction as found expressed in the New Brunswick Rules of court Rule 1.03 (2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits.

62.

Black's Law Dictionary (8th ed. 2004) at Page 3136 May it please the

Honorable Court the defines merits as the following:

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MERITS merits. 1. The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure <trial on the merits>. 2.EQUITY(3) <on questions of euthanasia, the Supreme Court has begun to concern itself with the merits as well as the law>.

63.

The rules of Court 1.03 (2) states These rules shall be liberally

construed; may it please the Honorable Court the please find the following definition of Construed. Black's Law Dictionary (8th ed. 2004) at Page 947 defines Construe as follows: CONSTRUE construe (k<<schwa>>n-stroo), vb. To analyze and explain the meaning of (a sentence or passage) <the court construed the language of the statute>. 64. Furthermore: May it please the Honorable Court the Black's Law

Dictionary (8th ed. 2004) at Page 2526 defines Just as follows: JUST just, adj. Legally right; lawful; equitable 65. When viewed in the here within above language, the defined words

are followed by bracketed definitions, the Rule 1.03 (2) reads: These rules shall be liberally construed (analyzed and the meaning of explained ) to secure the just (Legally right; lawful; equitable), least expensive and most expeditious determination of every proceeding on its merits (The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure).

29

66.

The RTIPPA has remedial language placed within the Act, which the

Intended Appellant verily believes, makes it clear, that persons filing Referrals are not to have costs awarded against them, to punish a unsuccessful application.

67.

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. [Cases: Statutes 159, 162. C.J.S. Statutes 287, 294.] 68. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. 69. The definition of Expressio Unius Est Exclusio Alterius may be found

provide the following excerpt:

at the following website (http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlteri us.aspx ) and is reproduced below for convenience: Expressio Unius Est Exclusio Alterius definition: Latin: the expression of one thing is the exclusion of the other. 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."

30

In Dorval, Justice Cameron expressed it as: "... to express one thing is to exclude another." 70. Rule 59.01 of the Rules of Court, state that the costs of a proceeding

are in the discretion of the Court, subject to any Act and these rules of Court, Rule 59.01 of the Rule so of Court is reproduced 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. 71. Rule 59.01 of the Rules of Court, specifically expresses the courts

discretion when awarding Costs to Parties. Rule 59.01 recognized that the discretion regarding cost is subject to the Acts of New Brunswick as well as any Rules of Court to the contrary. Section 76 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 is just such a Rule, the Maxim Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, a.k.a. "Last in Time") and affirmed by the Maxim Expressio Unius Est Exclusio Alterius (The express mention of one thing excludes all others) }, which limits the discretion of the Court, when deciding Costs on a Referral Hearing.

72.

Section 76 of the Right to Information and Protection of Privacy Act,

S.N.B. 2009, c. R-10.6 provides the following: Costs 76(1) If a matter is referred to a judge of The Court of Queens Bench of New Brunswick under subsection 65(1) or appealed to a judge of The Court of Queens Bench of New Brunswick under section 75, the judge shall award costs in favour of the person who referred or appealed the matter

31

(a) where the person is successful, and (b) where the person is not successful, if the judge considers it to be in the public interest. 76(2) Despite subsection (1), a judge of The Court of Queens Bench of New Brunswick may award costs in favour of the public body if the judge considers that the matter for review or appeal is frivolous or vexatious or amounts to an abuse of the right to access. 73. Section 76 of the Right to Information and Protection of Privacy Act,

S.N.B. 2009, c. R-10.6 according to the Maxim to express one thing is to exclude another makes its interpretation clear, specifically regarding costs that The Court of Queens Bench of New Brunswick may award costs in favour of the public body only if the judge considers that the matter for review or appeal is frivolous or vexatious or amounts to an abuse of the right to access. The Learned Trial Judge did not claim Intended Appellants Application was frivolous or vexatious or amounts to an abuse of the right to access.

74.

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

Rules of Court, equity and RTIPPA.

75.

Error in Law In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235,

in the header of the decision, the Supreme Court did provide a succinct view on the Courts standard of review. An appeal is not a re-trial of a case, consideration must be given to the standard of review applicable to questions that arise on appeal. The standard of review on pure questions of law is one of correctness, Appellate courts require a broad scope of review with respect to matters of law, because their primary role is to delineate and refine legal rules

32

and ensure their universal application. Action taken under statutory authority is valid only if it is within the scope of that authority, if it was not, the Court did commit reversible error. Examples of this may be found throughout the previous section of text.

76.

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

Courts discretion to grant remedy to the Intended Appellant. The Court actually claimed not to have the jurisdiction or refused without just cause, to Order an extension of time for service and filing of the relative Post Hearing Brief. The Court claimed to not have the Jurisdiction to Order the extension of time for service and filing of the Post Hearing Brief because it was supposed to be filed pursuant to a Court Order, when in fact the intended Appellant requested for the Courts consent to file a Post Hearing Brief, which the Court did. Because the Court agreed to accept a Post Hearing Brief does not create a binding unalterable agreement, especially when the interest of Justice would dictate otherwise.

77.

The Court dismissed the Intended Appellants uncontested Affidavit

evidence, refused to accept an essential Post Hearing Brief but paradoxically, the Court used the Court discretion to Order cost against the Intended Appellant, for filing the subject Referral:

despite Intended Respondent not filing any brief (no work equals no costs); not filing any affidavit material; not arguing why it is in the publics interest to not disclose the information; and lastly the order of cost is directly contrary to the spirit and wording of Section 76 of the Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6

33

78.

Manifest Abuse of Discretion was demonstrated when the Court

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

79.

The Leaned Trail Judge did demonstrate Omissions in reason for

judgment, as expressed throughout this submission, which amount to material error because they give rise to the reasoned belief that the trial judge must have forgotten, ignored or misconstrued the evidence in a way that affects the Courts conclusions, such as in this case.

80.

Maxim - Neminem laedit qui jure suo utitur. A person who exercises

his own rights injures no one. If Intended Appellant was actually Defending a criminal matter then according to natural Justice a alleged Defendant in a criminal matter would have the right to confront all evidence intended for use in a fair hearing (therefore all substantive information/material would have been revealed), which is one of the fundamental principles of Justice adhered to in Canada. One of the fundamental principles of justice is that no accusation be allowed to stand unless there is sufficient evidence to support the allegation, however, the Intended Appellant has suffered injury and harm by judgment without trial, experienced by arrest without warrant, therefore in the interest of preventing further injustice, the Intended Appellant attempted to lawfully gain the information necessary for his safety inter alia, in requesting of the Learned

34

Trial Judges assistance to take this alternative route, as contemplated by the drafters of Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6,.

81.

Legal maxims: (2) Boni judicis est causas litium derimere: It is the duty of a good judge to remove the cause of litigation

(1) Boni judicis est ampliare jurisdictionem: It is the part of a good judge to enlarge his jurisdiction; that, his remedial authority;

82.

Pursuant to the above legal Maxims, the Court did abuse its

discretion. The Solicitor acquired by the NEW BRUNSWICK POLICE COMMISSION, has not been hired to represent the interests of the FREDERICTON POLICE FORCE, therefore there is no reason for this Court to receive representations from the Solicitor who is acting in the interest of the NEW BRUNSWICK POLICE COMMISSION, regarding the issue of an investigation into the abuse and malicious manipulation of the Fredericton Police Force services. That investigation would be regarding the volume and substance of the telephone reports and complaints containing erroneous and provocative allegations against Intended Appellant and most importantly an order disclosure of same investigation to the Applicant. This objection which was raised by Solicitor Debora Lamont is unfounded and contrary to the interest of Justice, (only profits the Solicitor, at the expense of both New Brunswick Police Commission financially and the Intended Respondent in loss of opportunity to gain relief from the Court so sorely needed) for the Court to

35

condone this behavior, (contrary to law society Code of professional conduct) reveals a reasonable apprehension of bias.

Findings of Fact 83. In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235, in the header of the decision, the Supreme Court did provide a succinct view on the Courts standard of review. The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a palpable and overriding error. A palpable error is one that is plainly seen. The standard of review for inferences of fact is not to verify that the inference can reasonably be supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, a stricter standard. Making a factual conclusion of any kind is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.

84.

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

accepted, because Intended Appellant has demonstrated throughout this Brief, that they are unreasonable, based on a material misapprehension of the evidence, and or tainted by a failure to consider material, relevant evidence. The effect is significantly unjustified prejudice and or injustice to Intended

36

Appellant. The Court did make palpable and overriding errors throughout the impugned decision. 85. Learned Trial Judge, subjectively, therefore demonstrated that

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

86.

The Court did make palpable and overriding errors, the Learned Trial

Judge, subjectively, therefore demonstrated that Learned Trial Judge did not appreciate the argument advanced by Intended Appellant, consequently failed or refused to understand the legal principles relied on, in support of the Intended Appellants argument, further, the Learned Trial Judge failed to review and understand the relevant evidence.

87.

Legal dictionary duhaime.org provide the following definition of

Manifest Abuse of Discretion http://www.duhaime.org/LegalDictionary/M/ManifestAbuseofDiscretion.aspx Manifest Abuse of Discretion Definition: An American standard of judicial review: discretion exercised improvidently or thoughtlessly and without due consideration. In Malicoat, the Indiana Court of Appeal preferred:

37

"[M]anifest abuse of discretion ... is when the trial court's decision is clearly against the logic and the facts of the case." But, then, in Bitterrooters, the Montana Supreme Court used these words: "A manifest abuse of discretion is one that is obvious, evident, or unmistakable." 88. Manifest Abuse of Discretion was demonstrated when the Court

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

89.

In these circumstances it would be a disservice to the administration

of justice to allow this impugned decision to stand. 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.

COSTS 90. Intended Appellant (as Applicant) provided Affidavit Evidence combined with substantiation by argument that Costs should be awarded to the Intended Appellant. It follows that lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, lay litigants, by foregoing remunerative activity, incurred an opportunity cost. It is self evident the

38

Intended Appellant did expend considerable time and energy preparing for these Hearings.

91.

Maxim: Lex nemini operrtur iniquum, nemini facit injuriam. The law

never works an injury, or does a wrong. The Intended Appellant claims that the exercise of discretion of the Learned Trial Judge in regards to Cost award to the Plaintiff is manifestly without merit, exercised contrary to the facts of the case, excessively disproportionate, therefore, substantial injustice and serious injustice would result if the Cost award (as in this matter) is allowed to stand.

92.

The Learned Trial Judge did exercise discretion that may be

categorized as Manifest Abuse of Discretion, when the Courts decision is unsupported by the evidence, clearly on a erroneous finding of a material fact is being arbitrarily exercised or capriciously as Intended Appellant contends occurred in this case; Intended Appellant, claims in this matter that the Learned Trail Judge has in this case demonstrated Manifest Abuse of Discretion, in the inappropriately excessive Cost awarded the Intended Respondent, moreover the unjust awarding of undeserving cost, in the amount awarded in favor of the Intended Respondent in these subject circumstances; further, Intended Appellant contends, it would be a disservice to the administration of justice to allow this Award of Costs to stand. "To be capricious is to be so irregular as to appear to be ungoverned by law."

93.

The Intended Appellant provided the Court with a Motion so that the

Court would accept for filing and serving a Post Hearing Brief, substantiating Affidavit, a carefully researched and prepared brief to explain why (because of the proper application the rules of Court, discretion, equity and Justice) the

39

Court should accept a Post Hearing Brief (which the Court refused to accept), further a thorough Oral presentation for the Courts convenience. Comparatively speaking the Intended Respondent provided nothing but a unfounded objection, only profitable to the Intended Respondents Solicitor. Intended Appellant asked for cost of the Motion because, it was the continuing unreasonable conduct of Intended Respondent, which necessitated such a Motion. The continuing conduct of the Intended Respondent was causing considerably more time and expense to the Intended Appellant. Remember the reason for the request for disclosure of information under RTIPPA was because some unnamed party was unreasonably called the Fredericton Police Force and provided negligent representations, which was endangering the health and well being of the Intended Appellant, (fact is intended Appellant was arrested and injured in the process on two different occasion, the subject of the two Referrals, both caused by a caller directing the Fredericton Police Force).

94.

Intended Appellant provided Affidavit Evidence, combined with

substantiation by argument, that Costs should be awarded to the Intended Appellant. It follows that lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, lay litigants, by foregoing remunerative activity, incurred an opportunity cost. It is self evident the Intended Appellant did expend considerable time and energy preparing for the Hearings.

95.

Intended Appellant Filed Affidavit material in support of the

Referrals, and a substantial Brief for the Courts benefit and consideration.

40

96.

Intended Respondent filed no Affidavit evidence, no brief and the

Solicitor for the Respondent requested and was granted a adjournment to allegedly study the RTIPPA, contributing to delay in hearing and resolving the matter of the two Referrals.

97.

The law never works an injury, or does a wrong. The Intended

Appellant claims that the exercise of discretion of the Learned Trial Judge in regards to Cost award to the Plaintiff is manifestly without merit, exercised contrary to the facts of the case, therefore excessively disproportionate, therefore, substantial injustice would result if the Cost award (as in this matter) is allowed to stand.

98.

The Learned Trial Judge did exercise discretion that may be

categorized as Manifest Abuse of Discretion, when the Courts decision is unsupported by the evidence, clearly on a erroneous finding of a material fact is being arbitrarily exercised or capriciously as Intended Appellant asserts occurred in this case; Intended 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 Intended Respondent, moreover the unjust awarding of undeserving cost, in the amount awarded in favor of the Intended Respondent in these subject circumstances; further, Intended Appellant asserts, it would be a disservice to the administration of justice to allow this Award of Costs to stand. PART IV
62.03 Leave to Appeal

Question for the Court to answer:

41

Should the Court, pursuant to Rule 62.03 grant Leave to Appeal to the Intended Appellant under these circumstance described in this Brief?

99.

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

consider the following Rules of Court:

62.03 Leave to Appeal (1) Where a party seeks to appeal from (a) an interlocutory order or decision, (b) an order or decision as to costs only, or (c) an order made with the consent of the parties, (4) In considering whether or not to grant leave to appeal, the judge hearing the motion may consider the following: (a) whether there is a conflicting decision by another judge or court upon a question involved in the proposed appeal; (b) whether he or she doubts the correctness of the order or decision in question; or (c) whether he or she considers that the proposed appeal involves matters of sufficient importance.

100.

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

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

42

[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 cumulative effect of these considerations leads me to conclude that leave should be granted pursuant to Rule 62.03(4)(b).

[23]

[24]

101.

The two portion of the Rule 62.03(4) that the Intended Appellant will

focus on is (b) an (c):

102.

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

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

43

103.

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

considers that the proposed appeal involves matters of sufficient importance.

104.

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

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

105.

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

in the judiciary, which are matters of general importance affecting the rights of society at large. The public will loose confidence in the judiciary, if the impugned decision before this Court, is allowed to stand.

106.

The learned trial judge erred in law in not recognizing the principal of

law expressed in the Maxim Audi Alteram Partem (Latin; literally 'hear the other side'), further, the learned Trial Judge did not, reasonably does not, recognize the principal of law expressed in the maxim nemo judex in causa sua debet esse which underlies the doctrine of "reasonable apprehension of bias". The Court erred in Law, erred in Fact and applied the Court discretion capriciously. These aforementioned actions must therefore have created in the

44

mind of a reasonable, fair minded and informed person an impression of a lack of impartiality.

107.

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

not conducted herself in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment because of the aforementioned conduct. The learned trial Judge has made inappropriate comments, improper remarks and unjustified reprimands, which has undermined the appearance of impartiality and demonstrated a reasonable apprehension of bias, furthermore, in arriving at the impugned decision, the Court could not have been reasonably based that decision on the argument presented by the parties, or submitted by affidavit evidence.

108.

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

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

109.

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

will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment, unfortunately for all of us she has not. The Learned Trial Judge's conduct is likely to diminish respect for the judiciary in the minds of the community and myself, moreover, has created a perception which is likely to lessen respect for judges or the judiciary as a whole. This impugned conduct must reflect upon the central components of the judges

45

ability to do the job. Please see J. Shaman et al, Judicial Conduct and Ethics (2d,
1995), as Shaman put it,...the ultimate standard for judicial conduct must be

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

110.

Without that confidence the system cannot command the respect and

acceptance that are essential to its effective operation. The trial Judges actions affect not only myself, but public confidence in the judiciary generally, and such matters bring the administration of justice into disrepute, is damaging to the judge, the judiciary as a whole and the good administration of justice. Parties are entitled to fair proceeding and procedural correctness which is in the interest of justice, please note Justice is defined by Blacks Dictionary as a fair application of the law. The duty of the court is to ensure, as much as is possible, that justice is done. In the matter before this Court it was not.

PART V Is Justice Cledenings decision final or interlocutory? If it is final, leave to appeal is not required In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.)

111.

Honorable Justice J. ERNEST DRAPEAU, J.A. stated the following regarding the approach to the determination of the threshold question of whether an order or decision is interlocutory or final:

46

Decision [7] A preliminary question arises: Is Justice McLellans decision final or interlocutory? If it is final, leave to appeal is not required. [8] In this Province, the leading authority on point is Bourque v. New Brunswick, Province of, Leger and Leger (1982), 41 N.B.R. (2d) 129 (C.A.). In that case, Stratton J.A., as he then was, adopted the following approach to the determination of the threshold question at issue here, at pages 133-34:
13 In my opinion, the question whether an order or decision is interlocutory or final should be determined by looking at the order or decision itself, and its character is not affected by the nature of the order or decision which could have been made had a different result been reached. 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.

[9] The analytical framework articulated in Bourque has withstood the test of time. See Lawson et al. v. Poirier et al. 1994 CanLII 6525 (NB C.A.), (1994), 152 N.B.R. (2d) 394 (C.A.), per Ryan J.A. at paras. 9_13; Western Surety Co. v. National Bank of Canada 2001 NBCA 15 (CanLII), (2001), 237 N.B.R. (2d) 346 (C.A.), at para. 27; Sinclaire v. Nicols and Gregg 1999 CanLII 4070 (NB C.A.), (1999), 231 N.B.R. (2d) 60 (C.A); Caissie v. Senechal Estate et al. 2000 CanLII 8754 (NB C.A.), (2000), 231 N.B.R. (2d) 198 (C.A.), per Turnbull J.A.; and Dougs Recreation Centre Ltd. et al. v. Polaris Industries Ltd. 2001 CanLII 19446 (NB C.A.), (2001), 237 N.B.R. (2d) 190 (C.A.), per Robertson J.A. The question whether Mr. MacArthur must obtain leave to appeal is to be determined within that analytical framework. 112.
The nature of the order or decision as made finally disposes of, or

substantially decides the rights of the parties, because there is nothing further that the Intended Appellant may do in this file. The Intended Appellant believes the decision

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ought to be treated as a final order or decision, the merits of the Application for a Court Order which would compel the Fredericton Police Force to Conduct an investigation and provide disclosure to the Applicant, under the RTIPPA have been determined, though erroneously, this decision appears to be final.

113.

If the Court does find that this decision if final then leave to appeal is

not required PART VI Cost Orders in favor of self-represented litigants 114. Rules of Court Rule 59.01 is provided below: 59.01 Authority of the Court (1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid. (2) Nothing in this rule shall be construed so as to interfere with the authority of the court (a) to fix the costs of a proceeding, or a step in a proceeding, with or without reference to a tariff, instead of requiring assessment of the costs, (b) to allow or refuse costs in respect of a particular issue or part of a proceeding, (c) to order costs to be assessed on a solicitor and client basis, or (d) where parties are entitled to costs from each other, to order set-off of the costs. 115. In McNichol v. Co-operators General Insurance Company, 2006

NBCA 54 (CanLII), Chief Justice J. ERNEST DRAPEAU, addresses cost orders in favor of self-represented Litigants. REFERENCE: (Please see paragraph 41 through to and including paragraph 45): [42] Rule 59.01, however, makes it clear that costs are in the discretion of the trial court who can determine by whom and to what extent costs

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shall be paid and that such costs can be fixed with or without reference to a tariff. In addition, there appears to be a modern trend regarding the granting of costs to unrepresented lay litigants. Please see an excellent discussion in M.M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, ON: Carswell, 2000) at 209.15 entitled "Party in Person". Please also see: Fong v. Chan 1999 CanLII 2052 (ON C.A.), (1999), 46 O.R. (3d) 330 (Ont. C.A.). Please See, as well:, Skidmore v. Blackmore 1995 CanLII 1537 (BC C.A.), (1995), 2 B.C.L.R. (3d) 201 (C.A.); Huet v. Lynch 2001 ABCA 37 (CanLII), (2001), 91 Alta. L.R. (3d) 1 (C.A.); Dechant v. Stevens 2001 ABCA 39 (CanLII), (2001), 89 Alta. L.R. (3d) 246 (C.A.) and Collins v. Collins 1999 ABQB 707 (CanLII), (1999), 72 Alta. L.R. (3d) 300 (Q.B.). 116. As stated by Chief Justice J. ERNEST DRAPEAU above in McNichol

v. Co-operators General Insurance Company, 2006 , supra, Rule 59.01, however, makes it clear that costs are in the discretion of the trial court who can determine by whom and to what extent costs shall be paid and that such costs can be fixed with or without reference to a tariff. In addition, there appears to be a modern trend regarding the granting of costs to unrepresented lay litigants.

117.

Intended Appellant offers that after due consideration, this Honorable

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

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118.

Following the lead of the above Court in McNichol v. Co-operators

General Insurance Company, 2006, supra, this Honorable Court may find it appropriate to Order the INTENDED RESPONDENT to pay costs throughout, that, which may be similarly fixed at $5,000, in addition to all reasonable disbursements.

119.

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

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

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120.

As similarly stated in Fong, et al v. Chan, et al, 1999, supra, Costs

should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to work ordinarily done by a lawyer retained for litigation, and that as a result, self represented litigants incurred an opportunity cost by foregoing remunerative activity such as the self represented Intended Appellant before this Court. It is abundantly clear that the self represented Intended Appellant in this matter devoted much time to present interesting and thought-provoking legal argument ordinarily expected of a lawyer, further is evidenced by the quality of the material presented for consideration to this Honorable Court.

121.

As stated above in above in Fong, et al v. Chan, et al, 1999, supra,

paragraph 22 modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. All three purposes are fostered by allowing the trial judge discretion to award costs to self-represented litigants. 122. 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.

123.

Costs may be awarded to those lay litigants who can demonstrate

devoted time and effort to do work, which ordinarily would have been done by a lawyer retained for same litigation, further, it is consistent when lay litigants incurred an opportunity cost by foregoing their usual remunerative activity;

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therefore awarding of additional Costs are a useful tool of the Court to encourage settlements and or to discourage or sanction inappropriate behavior, as the case may be.

124.

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

125.

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

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

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126.

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

J., addressed the following regarding importance of the issues at paragraph 11 as: [11] With respect to the factor involving the importance of the issues, I note that the rule does not refer to the importance of the issues to the parties. No doubt, when matters require resolution by proceeding to trial the issues are important to the parties. In my view, however, importance of the issues comprehends matters of general importance affecting the rights of society at large, analogous to the interpretation placed by the courts on the expression matters of such importance in rule 62.02(40(b) of the Rules of Civil Procedure. See Davidson Tisdale Ltd. v. Pendrick (1997), 18 C.P.C. (4th) 131, 106 O.A.C. 241 (Gen. Div.). 127. (d) the importance of the issues. Intended Appellant has been

attempting to receive confirmation of the identity of the unnamed caller who has twice put the Intended Appellants life in danger by providing fraudulent misrepresentations which has resulted in the Fredericton Police Injuring the Intended Appellant. The actions or lack thereof by of the Intended Respondent are putting the Intended Appellants health and safety at risk. matters of such importance exist that which would be considered matters of general importance affecting the rights of society at large, since this is an opportunity for the Courts to establish a remedy, such as a legal decision for those in society at large, to be able to use as a tool for their own remedy against similar inappropriate behavior. If someone called City Hall and fraudulently reported a bomb, which resulted in panic causing damages, lets say by a heart attack or falling down stairs of the elderly, it would be unbelievable that the Fredericton Police Force would be interested in protecting the (caller) third partys privacy. Yet somehow the Court believes that it is alright that someone calls the Police, providing fraudulent representation, resulting in injury to the Intended

53

Appellant. It is a matter of larger societal interest that the Fredericton Policing resources are not misused and abused for someones, nefarious purpose. If this is allowed to stand then we can expect more of this type of behaviour. 128. (i) the neglect or refusal of any party to make an admission which

should have been made. The Intended Respondent could have admitted that there was no prejudice whatsoever to the NBPC, in the matter of the Court receiving a Post Hearing Brief, apologized for the inappropriate behavior, consented to a extension of time for filing and serving same. Because of the actions of the Intended Respondent the decision regarding this matter was delayed 8 months.

129.

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

caution, negligence or mistake, It was an honest mistake, that Intended Appellant did file the Intended Appellants Post Hearing Brief regarding Ordering the Fredericton Police Force later than expected, this honest mistake should not have been a bar to the Court considering same, especially when pursuant to the Rule of Equity, Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court the Court, and the Court application of discretion, the Court may, extend time (or modify) required for filing and service of the Applicants Post Hearing Brief Dated September 17, 2011 and Court File Date Stamped September 19, 2011.

130.

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

unnecessarily lengthen the duration of the proceeding Because of the objection of the Solicitor for the Intended Respondent, regarding the admission of a Post Hearing brief, the proceedings have dragged out over 8 months. This

54

behavior is counter productive and is actually condemned by The Law Society of New Brunswick Code of Professional Conduct, CHAPTER 15 (4) states: the lawyer shall not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of another lawyer not going to the merits or involving a sacrifice or prejudice of the rights of the client. Furthermore, CHAPTER 15 (2)(iii) states The lawyer shall agree to reasonable requests by another lawyer for an extension of time, the waiver of a procedural formality and other similar accommodations as long as the position of the client of the lawyer will not be prejudiced materially by agreeing to the accommodation. And (vii) The lawyer shall practise the same principles of good faith and courtesy toward laypersons lawfully representing themselves or others in a matter as the lawyer is required to observe toward other lawyers. Debora Lamont raised no objection until the complete Brief was filed and served on her, a mere 7 days later then expected. The Brief did not effect her client NBPC in any way whatsoever. The Court allowed her a full 30 days to decide whether to file a brief in response if she so chose, which was not required.

131. follows:

Black's Law Dictionary (8th ed. 2004), Page 1969 defines frivolous as FRIVOLOUS frivolous, adj. Lacking a legal basis or legal merit; not serious; not reasonably purposeful

132.

Black's Law Dictionary (8th ed. 2004), Page 4842 defines vexatious VEXATIOUS vexatious adj. (Of conduct) without reasonable or probable cause or excuse; harassing; annoying.

as follows:

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133.

Applicant believes, that the conduct of the Intended Respondent

should be considered both frivolous and vexatious, therefore, the Honorable Court should consider same when deciding the matter of Costs of this Motion.

134.

Having considered the above here within provided arguments for

costs, this Honorable Court may find it appropriate to Order the Intended Respondent to pay costs throughout, in addition to all reasonable disbursements.

DATED at Fredericton New Brunswick, this . . . . day of . . . . . . . . . . , 2012.

______________________________ ANDRE MURRAY

PART VII

the relief sought,

a) That pursuant to Rule 62.26 of the Rules of Court for a stay of proceedings. b) The appellant asks that the decision be reversed. c) In the alternative, the appellant asks that the decision (or order as may be) be varied (set out the nature of the variance requested). d) In the alternative, the appellant asks that the decision (or order as may be) be set aside and that a new hearing or trial be held (or as may be).

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e) That the INTENDED RESPONDENT pay costs of the within Motion, f) Where the Intended Appellant applies for leave to appeal from an interlocutory order or decision The Intended Appellant will apply in the alternative for an extension of time to issue and serve a Notice of Appeal in the event that the judge hearing the motion rules that the order (or decision) is not interlocutory; g) Such further and other relief as to this Honorable Court may appear just in particular Honorable Madame Justice Clendening refusal to Recuse herself.

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Schedule A Authorities 1. Matondo v. Canada (Minister of Citizenship and Immigration), 2005 FC 416 (CanLII), para 18 and 19; 2. Moreau-Brubv. New Brunswick (Judicial Council), 2002 SCC 11 (CanLII), [2002] 1 S.C.R. 249, paragraph 35; 3. 4. 5. 6. Munn v. Rust, 2006 NBCA 87 (CanLII) para 13 to 16; R. v. S. (R.D.), [1997] 3 S.C.R. 484, the header of the Courts decision; BIAS is defined by Black's Law Dictionary (8th ed. 2004), at page 483; Legal Maxim -ugupia verforum sunt judice indigna: A twisting of language is unworthy of a judge; 7. 8. Black's Law Dictionary (8th ed. 2004) defines Abuse of Discretion; Matondo v. Canada (Minister of Citizenship and Immigration), 2005 FC 416 (CanLII) para 1; 9. Canada Revenue Agency v. Telfer, 2009 FCA 23 (CanLII), Justice EVANS J.A, from Para 29 through to 42; 10. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 Para 57 through to and including para 68; 11. legal-dictionary.thefreedictionary.com definition of audi alteram partem [Latin, hear the other side] 12. 13. 14. 15. Black's Law Dictionary (8th ed. 2004) at Page 3136 defines Merits; Black's Law Dictionary (8th ed. 2004) at Page 947 defines Construe; Black's Law Dictionary (8th ed. 2004) at Page 2526 defines Just; Black's Law Dictionary (8th ed. 2004) APPENDIX B at Page 5327 provided the following excerpt: Subsequent laws repeal prior conflicting ones.

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16.

Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 provide the following excerpt: The expression of one thing is the exclusion of another.

17.

Definition of Expressio Unius Est Exclusio Alterius may be found at the following website http://www.duhaime.org/LegalDictionary;

18. 19.

Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235; Maxim - Neminem laedit qui jure suo utitur. A person who exercises his own rights injures no one;

20.

Maxim - Boni judicis est ampliare jurisdictionem: It is the part of a good judge to enlarge his jurisdiction; that, his remedial authority;

21.

Maxim - Boni judicis est causas litium derimere: It is the duty of a good judge to remove the cause of litigation;

22.

Black's Law Dictionary (8th ed. 2004), at Page 3967 provides the following definition of REASONABLE;

23.

Black's Law Dictionary (8th ed. 2004), at Page 4779 provides the following definition of UNREASONABLE;

24. 25.

Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235; Legal dictionary duhaime.org provide the following definition of Manifest Abuse of Discretion;

26.

Maxim: Lex nemini operrtur iniquum, nemini facit injuriam. The law never works an injury, or does a wrong;

27. 28. 29. 30.

MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.); Lang v. Tran, 2006 CanLII 32627 (ON SC); MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.); McNichol v. Co-operators General Insurance Company, 2006 NBCA 54 (CanLII);

31.

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

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32. 33. 34.

Lang v. Tran, 2006 CanLII 32627 (ON SC); Black's Law Dictionary (8th ed. 2004), Page 1969 defines frivolous ; Black's Law Dictionary (8th ed. 2004), Page 4842 defines vexatious; Schedule B -Legislation

Rules of Rules of Court of New Brunswick 1.02 Application These rules apply to all proceedings in the Court of Queens Bench and the Court of Appeal unless some other procedure is provided under an Act. 1.03 Interpretation (1) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Judicature Act apply to these rules. (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 1.08 Orders on Terms When making an order under these rules, the court may impose such terms and give such directions as are just. 59.01 Authority of the Court (1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid. (2) Nothing in this rule shall be construed so as to interfere with the authority of the court (a) to fix the costs of a proceeding, or a step in a proceeding, with or without reference to a tariff, instead of requiring assessment of the costs, (b) to allow or refuse costs in respect of a particular issue or part of a proceeding, (c) to order costs to be assessed on a solicitor and client basis, or (d) where parties are entitled to costs from each other, to order set-off of the costs.

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

62.03 Leave to Appeal (1) Where a party seeks to appeal from (a) an interlocutory order or decision, (b) an order or decision as to costs only, or (c) an order made with the consent of the parties, (4) In considering whether or not to grant leave to appeal, the judge hearing the motion may consider the following: (a) whether there is a conflicting decision by another judge or court upon a question involved in the proposed appeal; (b) whether he or she doubts the correctness of the order or decision in question; or (c) whether he or she considers that the proposed appeal

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involves matters of sufficient importance. Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6: Purposes of this Act 2 The purposes of this Act are (a) to allow any person a right of access to records in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act, (c) to allow individuals a right of access to records containing personal information about themselves in the custody or under the control of public bodies, subject to the limited and specific exceptions set out in this Act, 21(3) Despite subsection (2), disclosure of personal information is not an unreasonable invasion of a third partys privacy if (a)the third party has consented to or requested the disclosure, (b)there are compelling circumstances affecting the mental or physical health or the safety of the applicant or another person and notice of the disclosure is mailed to the last known address of the third party, Decision of The Court of Queens Bench 66(1) (c)If a matter is referred to a judge of The Court of Queens Bench of New Brunswick under subsection 65(1), the judge shall hold a hearing and, (a) where the matter is referred by an applicant, (i) if the head of a public body denied a request for information in whole or in part, may order the head of the public body to grant the request in whole or in part, and (c) may make any other order that is, in the opinion of the judge, necessary Costs

61

76(1) If a matter is referred to a judge of The Court of Queens Bench of New Brunswick under subsection 65(1) or appealed to a judge of The Court of Queens Bench of New Brunswick under section 75, the judge shall award costs in favour of the person who referred or appealed the matter (a) where the person is successful, and (b) where the person is not successful, if the judge considers it to be in the public interest. 76(2) Despite subsection (1), a judge of The Court of Queens Bench of New Brunswick may award costs in favour of the public body if the judge considers that the matter for review or appeal is frivolous or vexatious or amounts to an abuse of the right to access. The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13, 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. The Law Society of New Brunswick Code of Professional Conduct, CHAPTER 15 (4) states: the lawyer shall not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of another lawyer not going to the merits or involving a sacrifice or prejudice of the rights of the client. Furthermore, CHAPTER 15 (2)(iii) states The lawyer shall agree to reasonable requests by another lawyer for an extension of time, the waiver of a procedural formality and other similar accommodations as long as the position of the client of the lawyer will not be prejudiced materially by agreeing to the accommodation. (vii) The lawyer shall practise the same principles of good faith and courtesy toward laypersons lawfully representing themselves or others in a matter as the lawyer is required to observe toward other lawyers Judicature Act, R.S.N.B. 1973, c. J-2

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Rules of Court of new Brunswick 1.02 Application, 1.03 Interpretation (1) (2) and 1.08 Orders on Terms Interpretation Act, R.S.N.B. 1973, c. I-13 section 17 Right to Information and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 Section 2 and Section 66 The Police Act, SNB 1977, c P-9.2 section 12

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