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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 IntendedAppellant 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 wasbefore, 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
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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 herdecision 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 Courtto 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 completelyirrational 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 shesimply 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
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and prepared sincerely seeking remedy (another example of reasonable
apprehension of bias).
4. Furthermore, the reasons found within paragraph number 4 of theLearned 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 theLearned 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 theLearned 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.
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7. Furthermore, reasons found within paragraph number 7 of theLearned 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 theLearned 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, sincecost follow merit, therefore no merit = no costs.
PART III - ISSUES
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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. TheIntended Appellantrelies upon Natural Justice and proceduralfairness 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 theother side'). The Court rendered a decision without fully hearing theIntended
Appellant, by:
egregious and in this particular circumstance morally reprehensible isMadame 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.
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refusing to accept the Intended Appellants Post Hearing Brief;
10. 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 rightto 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 tothe Greeks, inscribed in ancient times upon images in placeswhere 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 inthe Year Books to the law of nature, asserted by Coke to be aprinciple of divine justice, and traced by an eighteenth-centuryjudge to the events in the Garden of Eden.
[Footnotes omitted]
de Smith, Woolf and Jowell,Judicial Review of Administrative Action(5
thed) (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. TheWandsworth Board of Works (1863), 143 E.R. 414 at p. 420:
.. The judgment of Mr. Justice Fortescue, in Dr. Bentley's case, issomewhat quaint, but it is very applicable, and has been the law fromthat 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 anopportunity to make his defence, if he has any. I remember to haveheard it observed by a very learned man, upon such an occasion, thateven God himself did not pass sentence upon Adam before he wascalled upon to make his defence...
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11. The right to be heard is at the heart of our interpretation of justice andfairness, 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 fairnessrequires 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
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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. InMoreau-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 rulesof procedural fairness extends to all administrative bodies acting understatutory authority (see Nicholson v. Haldimand-Norfolk RegionalBoard of Commissioners of Police, 1978 CanLII 24 (SCC), [1979] 1S.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, orthe audi alteram partem rule. The nature and extent of this duty, inturn, "is eminently variable and its content is to be decided in thespecific 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:
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[14] I am of the view that, in refusing to considerMr. 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 fairnessrequired the motion judge to hear him. It is only after hearing Mr.Munns arguments in support of his request to cross-examine and anyarguments made in reply, that the motion judge would have been ableto judicially exercise the discretionary powers conferred by Rule39.03.
[15] In my view, the appeals should be allowed onthe common ground raised in both Notices of Appeal that allege thatthe motion judge erred in the exercise of the discretion conferred by
Rule 39.03. It follows that the judges order striking out those portionsof the Plaintiffs Statement of Claim which assert a claim against theDefendant, Edward B. Rust Jr., must be set aside.
15. In refusing to hear the Intended Appellants recusal Motion, refusingto consider Intended Appellants Post Hearing Brief for disclosure under
RTIPPA, the motion judge failed to exercise her discretion judicially. Intended
Appellanthad 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 tohear the Intended Appellant because of, but not limited to the following:
Applicant having offered to prepare a Post hearing Brief did so providesaid Brief at subsequent subject Hearing. The Learned Trial Judge
upon hearing the matter at that predetermined date did chimerically
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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 beenissued 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 herduties, as it is the duty of as a presiding judge to provide a fairenvironment 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
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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 IntendedAppellants 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 theIntended 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 heardwhen they are being interrupted.
Not hearing the most important Court File Date Stamped copy (April17, 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 alternativeof the subject recusal Motion, 2012 therefore is a violation of the
Intended Appellants essential Right to be Heard;
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Bias Rule as Applicable
17. The Learned Trial Judge failed to comprehend the facts andarguments 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 hercase, 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 basedon a balanced and considered assessment of the information and evidence
before him or her without favoring one party over another.
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19. Even where no actual bias exists, decision-makers should be careful toavoid 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 Courtsdecision 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
PerLamer C.J. and La Forest, Sopinka, Gonthier, Cory,Iacobucci and Major JJ.: The courts should be held to the higheststandards of impartiality. Fairness and impartiality must be bothsubjectively present and objectively demonstrated to the informed andreasonable observer. The trial will be rendered unfair if the words oractions of the presiding judge give rise to a reasonable apprehension of
bias to the informed and reasonable observer. Judges must beparticularly sensitive to the need not only to be fair but also to appear toall reasonable observers to be fair to all Canadians of every race,religion, nationality and ethnic origin.
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If actual or apprehended bias arises from a judges wordsor conduct, then the judge has exceeded his or her jurisdiction. This
excess of jurisdiction can be remedied by an application to thepresiding judge for disqualification if the proceedings are stillunderway, or by appellate review of the judges decision. A reasonableapprehension of bias, if it arises, colours the entire trial proceedings andcannot be cured by the correctness of the subsequent decision. Themere fact that the judge appears to make proper findings of credibilityon certain issues or comes to the correct result cannot alleviate theeffects of a reasonable apprehension of bias arising from the judgesother words or conduct. However, if the judges words or conduct,viewed in context, do not give rise to a reasonable apprehension ofbias, 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 byreasonable and right-minded persons, applying themselves to thequestion and obtaining thereon the required information. The test iswhat 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 personconsidering the alleged bias must be reasonable and the apprehensionof 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 ofintegrity and impartiality that form a part of the background andapprised also of the fact that impartiality is one of the duties the judgesswear to uphold. The reasonable person should also be taken to beaware of the social reality that forms the background to a particularcase, such as societal awareness and acknowledgement of theprevalence of racism or gender bias in a particular community. Thejurisprudence indicates that a real likelihood or probability of bias mustbe demonstrated and that a mere suspicion is not enough. The existenceof a reasonable apprehension of bias depends entirely on the facts. Thethreshold for such a finding is high and the onus of demonstrating bias
lies with the person who is alleging its existence. The test appliesequally 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 impugnedstatements is irrelevant conjecture. Given the concern for both the
fairness and the appearance of fairness of the trial, the absence ofevidence to support the judgment is an irreparable defect.
21. The Learned Trial Judge should be held to the highest standards ofimpartiality. 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
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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 isdetermined 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, ofwhich 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.
26. Reasonable apprehension of bias, that which has arisen in this matter,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 summedup preliminarily as this;
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The Learned Trial Judge seems to have predetermined the outcome ofthe matter before fully considering all the material available for
consideration;
The Learned Trial Judge displayed a condescending attitude towardsthe Intended Appellant through the many hearing that the Intended
Appellant has been before this particular Court;
The Learned Trial Judge displayed intolerance towards the IntendedAppellant;
The Learned Trial Judge seemed to be determined or predisposed to aparticular 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 alreadyrefused 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
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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 thoroughlyresearched and prepared Brief and a carefully presented oral argument,
alternatively the Intended Respondent requested an adjournment of the mattersto 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 5previous Hearings, including this decision being appealed. The conduct of this
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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 continuouslyinterrupted 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 , JusticeClendening 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 beingdifficult with you
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12:01:41 PM Andre Murray: ok I object to being referred to as cryingto 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 peoplein the way that you do, calling them liars, and so on, then you may havesome, way to come before this court and suggest, crying is just astatement, its got nothing else, it means nothing more than you arecomplaining about a process, that is all it means, so if you object to thatI will withdraw the word crying
35. References to the April 27, 2012 hearing are relevant because thathearing 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 IntendedAppellant 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. Further conduct which demonstrates Reasonable apprehension of bias:a. The Learned Trial Judge refused to consider actual uncontestedsworn testimony by affidavit and exhibits, with no reasonable grounds
given and no disagreement of their content;
b. The Solicitor acquired by the NEW BRUNSWICK POLICECOMMISSION, 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.
Error in Law
38. TheIntended Appellantasserts that the trial judge made a number ofmaterial errors in law while arriving at Decision. The learned Trial Judge erred
in law, in irregularly applying the Courts Discretion. MoreoverIntended
Appellantcontends, 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 generaldirection 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 ofCourt, to prejudicially Bar theIntended Appellantfrom submitting a Brief for
the Courts Consideration, which provided the Case law Authorities and
complete Argument, buttressing theIntended Appellantclaims for relief, which
is am error in law.
41. Black's Law Dictionary (8th ed. 2004) defines Abuse of Discretion asfollows:
abuse of discretion.
1. An adjudicator's failure to exercise sound, reasonable, and legaldecision-making.
2. An appellate court's standard for reviewing a decision that is assertedto be grossly unsound, unreasonable, illegal, or unsupported by the
evidence.
42. The learned Trial Judge erred in law, in irregularly applying theCourts Discretion. The Intended Appellantcontends, 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 beungoverned by law
44. The Appellant contends the Learned Trial Judges decision lacked thedegree 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 caseprovided adequate justification, transparency, and intelligibility in orderto render the decision reasonable,....
[42] Finally, the Court inDunsmuir(at para. 47) noted that,although the primary focus of judicial review for unreasonableness isthe justification, transparency and intelligibility of the decision-making process, a reviewing court should also consider whether theoutcome itself is unreasonable.
46. Reference: Baker v. Canada (Minister of Citizenship andImmigration), [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 notsupported by any reasons that can stand up to a somewhat probingexamination. Accordingly, a court reviewing a conclusion on the
reasonableness standard must look to see whether any reasons supportit. The defect, if there is one, could presumably be in the evidentiaryfoundation itself or in the logical process by which conclusions aresought to be drawn from it.
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47. Intended Appellant asserts that the trial judge made a number ofmaterial 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 decision-
making. 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, theIntended 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 toprotect the Intended Appellant.
49. To assist the Honorable Court to come to a decision regarding theCourts 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
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Honorable Court Order disclosure of same investigation to the Intended
Appellant.
50. The Intended Appellant did review and define the relevant sections ofthe 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: Subsequentlaws repeal prior conflicting ones.
51. When considering Section 2 of the Right to Information andProtection of Privacy Act, S.N.B. 2009, c. R-10.6 as it relates to the Applicant,
provides as follows:
Purposes of this Act2 The purposes of this Act are
(a) to allow any person a right of access to records in the custody orunder the control of public bodies, subject to the limited and specificexceptions set out in this Act,
(c) to allow individuals a right of access to records containing personalinformation about themselves in the custody or under the control ofpublic bodies, subject to the limited and specific exceptions set out inthis Act,
52. Furthermore, Section 66 of the Right to Information and Protection ofPrivacy Act, S.N.B. 2009, c. R-10.6 provides for the following
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Decision of The Court of Queens Bench66(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 holda hearing and,
(a) where the matter is referred by an applicant,
(i) if the head of a public body denied a request for informationin whole or in part, may order the head of the public body togrant 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 andthe Court of Appeal unless some other procedure is provided under anAct.
1.03 Interpretation(1) Except where a contrary intention appears, theInterpretation Actand the interpretation section of theJudicature Actapply to these rules.
(2) These rules shall be liberally construed to secure the just, leastexpensive and most expeditious determination of every proceeding onits merits.
1.08 Orders on Terms
When making an order under these rules, the court may impose suchterms 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
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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 defeatthe 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 thefollowing internet web address provided below:
http://legal-dictionary.thefreedictionary.com/audi+alteram+partem
audi alteram partem [Latin, hear the other side.] It embodies theconcept 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 theevidence 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 thenaccording 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.
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58. The remedy requested was in accordance with the Rules of Court, theRight 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 doesin 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 R-
10.6, 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 IntendedAppellants 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 lawin 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 theHonorable Court the defines merits as the following:
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MERITSmerits. 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 .
2.EQUITY(3) .
63. The rules of Court 1.03(2) states These rules shall be liberallyconstrued; may it please the Honorable Court the please find the following
definition of Construed.Black's Law Dictionary (8th ed. 2004) at Page 947defines Construe as follows:
CONSTRUEconstrue (kn-stroo), vb. To analyze and explain themeaning of (a sentence or passage) .
64. Furthermore: May it please the Honorable Court the Black's LawDictionary (8th ed. 2004) at Page 2526 defines Just as follows:
JUSTjust, adj. Legally right; lawful; equitable
65. When viewed in the here within above language, the defined wordsare followed by bracketed definitions, the Rule 1.03(2) reads: These rules
shall be liberallyconstrued(analyzed and the meaning of explained ) to secure
thejust (Legally right; lawful; equitable), least expensive and most expeditious
determination of every proceeding on itsmerits (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).
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66. The RTIPPA has remedial language placed within the Act, which theIntended 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 5327provided 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 5294provide the following excerpt:
Expressio unius est exclusio alterius. The expression of one thing is theexclusion of another.
69. The definition of Expressio Unius Est Exclusio Alterius may be foundat 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 uniusest 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 arespecified in a law, contract or will, an intention to exclude all othersfrom its operation may be inferred. In this case, the reference to theassignment to a financial institution excludes assignment to any otherentity."
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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 thatthe costs of a proceedingare 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 astep in a proceeding are in the discretion of the court and the court maydetermine by whom and to what extent costs shall be paid.
71. Rule 59.01 of the Rules of Court, specifically expresses the courtsdiscretion 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 mentionof 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 ofThe Court of Queens Bench of New Brunswick under section 75, thejudge shall award costs in favour of the person who referred orappealed the matter
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(a) where the person is successful, and
(b) where the person is not successful, if the judge considers it to be inthe public interest.
76(2) Despite subsection (1), a judge of The Court of Queens Bench ofNew Brunswick may award costs in favour of the public body if thejudge considers that the matter for review or appeal is frivolous orvexatious 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 coststhat 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 theRules of Court, equity and RTIPPA.
Error in Law
75. 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 questionsthat 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
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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 theCourts 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 Affidavitevidence, 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 nocosts);
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 ofPrivacy Act, S.N.B. 2009, c. R-10.6
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78. Manifest Abuse of Discretion was demonstrated when the Courtasserted 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 forjudgment, 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 exerciseshis own rights injures no one.If Intended Appellant was actually Defending acriminal 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
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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:(1) Boni judicis est ampliare
jurisdictionem:
It is the part of a good judge to
enlarge his jurisdiction; that, his
remedial authority;
(2) Boni judicis est causas litium
derimere:
It is the duty of a good judge to
remove the cause of litigation
82. Pursuant to the above legal Maxims, the Court did abuse itsdiscretion. 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 aninvestigation 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
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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. Thestandard 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 beaccepted, 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
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Appellant. The Court did make palpable and overriding errors throughout the
impugned decision.
85. Learned Trial Judge, subjectively, therefore demonstrated thatLearned 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 trialjudge 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 TrialJudge, 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 ofManifest Abuse of Discretion
http://www.duhaime.org/LegalDictionary/M/ManifestAbuseofDiscretion.aspx
Manifest Abuse of Discretion Definition:An American standard of judicial review: discretion exercisedimprovidently or thoughtlessly and without due consideration.
InMalicoat, the Indiana Court of Appeal preferred:
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"[M]anifest abuse of discretion ... is when the trial court'sdecision is clearly against the logic and the facts of the case."
But, then, inBitterrooters, the Montana Supreme Court used thesewords:
"A manifest abuse of discretion is one that is obvious, evident,or unmistakable."
88. Manifest Abuse of Discretion was demonstrated when the Courtasserted 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 administrationof 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 theCourts conclusions.
COSTS
90. Intended Appellant (as Applicant) provided Affidavit Evidencecombined 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
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Intended Appellant did expend considerable time and energy preparing for
these Hearings.
91. Maxim: Lex nemini operrtur iniquum, nemini facit injuriam. The lawnever 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 becategorized 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, moreoverthe unjust awarding of undeserving cost, in the amount awarded in favor of the
Intended Respondentin 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 theCourt 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
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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 withsubstantiation 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 theReferrals, and a substantial Brief for the Courts benefit and consideration.
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96. Intended Respondent filed no Affidavit evidence, no brief and theSolicitor 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 IntendedAppellant 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 becategorized 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 LearnedTrail 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:
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[20] Rule 62.03(4) cannot be interpreted in isolation. Asnoted, its meaning and effect must be ascertained having regard to
theRules of Court as a whole. Rules 1.03(2) and 62.21(6) play animportant role in the interpretative exercise required here. Rule1.03(2) directs courts to liberally construe the rules to secure thejust, least expensive and most expeditious determination of everyproceeding on its merits. Rule 62.21(6) provides that [a]ninterlocutory order or decision from which there has been noappeal shall not operate to prevent the Court of Appeal fromrendering any decision or making any order.
[23] Factors such as the relative importance of theinterlocutory order or decision in the litigation process and the
repercussions of granting leave come into play in the exercise ofthat residual discretion. As Cameron J.A. noted in BusinessDevelopment Bank of Canada v. White Ottenheimer & Baker, atpara. 2, the matter always involves the weighing of interference,by the appeal process, with the timely administration of justiceagainst the interest of the appellant in having the matter resolvedimmediately.
[24] Justice McLellans decision appears to be quitesignificant in terms of its likely influence on the conduct of theaction in the case at hand. As well, the action is not entered for
trial; in fact, the discovery process is not completed. Finally, thereis no evidence that an order granting leave to appeal might causeprejudice of a serious nature to any party. The cumulative effect ofthese considerations leads me to conclude that leave should begranted pursuant to Rule 62.03(4)(b).
101. The two portion of the Rule 62.03(4) that the Intended Appellant willfocus on is (b) an (c):
102. First, Rule 62.03(4)(b), whether The Court doubts the correctness of theOrder or decision in question. To avoid redundancy the Intended Appellant would like
the Court to consider the aforementioned reasons, provided through this Brief.
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103. Secondly when considering section Rule 62.03(4)(c) whether the Courtconsiders that the proposed appeal involves matters of sufficient importance.
104. In Lang v. Tran, 2006 CanLII 32627 (ON SC), Justice CAVARZANJ., addressed the following regarding importance of the issues at paragraph
11 as:
[11] With respect to the factor involving the importance of theissues, I note that the rule does not refer to the importance of the issuesto the parties. No doubt, when matters require resolution byproceeding to trial the issues are important to the parties. In my view,
however, importance of the issues comprehends matters of generalimportance affecting the rights of society at large, analogous to theinterpretation placed by the courts on the expression matters of suchimportance in rule 62.02(40(b) of the Rules of Civil Procedure. SeeDavidson Tisdale Ltd. v. Pendrick (1997), 18 C.P.C. (4th) 131, 106O.A.C. 241 (Gen. Div.).
105. The importance of the issues before this Court, is public confidencein 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 oflaw 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
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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, soas 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/allowfor 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 thatwill 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
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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 andacceptance 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 VIs Justice Cledenings decision final or interlocutory?
If it is final, leave to appeal is not required
111. In MacArthur v. S. Bransfield Ltd., 2003 CanLII 48232 (NB C.A.)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:
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Decision[7] A preliminary question arises: Is JusticeMcLellans decision final or interlocutory? If it is final, leave to appeal isnot required.
[8] In this Province, the leading authority on point isBourque v. New Brunswick, Province of, Leger and Leger(1982), 41 N.B.R. (2d) 129 (C.A.). In that case, Stratton J.A., as hethen was, adopted the following approach to the determination ofthe 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 theorder or decision itself, and its character is not affected by thenature of the order or decision which could have been madehad a different result been reached. If the nature of the order ordecision as made finally disposes of, or substantially decidesthe rights of the parties, it ought to be treated as a final orderor decision. If it does not, and the merits of the case remain tobe determined, it is an interlocutory order or decision.
[9] The analytical framework articulatedin Bourque has withstood the test of time. See Lawson et al. v. Poirier etal. 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 ofCanada 2001 NBCA 15 (CanLII), (2001), 237 N.B.R. (2d) 346 (C.A.), atpara. 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. 2000CanLII 8754 (NB C.A.), (2000), 231 N.B.R. (2d) 198 (C.A.), perTurnbull J.A.; and Dougs Recreation Centre Ltd. et al. v. PolarisIndustries Ltd. 2001 CanLII 19446 (NB C.A.), (2001), 237 N.B.R. (2d)190 (C.A.), per Robertson J.A. The question whether Mr. MacArthurmust obtain leave to appeal is to be determined within that analyticalframework.
112. The nature of the order or decision as made finally disposes of, orsubstantially 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 t