june 7, 2012, intended appellant's brief on motion for leave to appeal, court of appeal file number...

7/29/2019 June 7, 2012, Intended Appellant's Brief on Motion for Leave to Appeal, Court of Appeal File Number 50-12-CA. No

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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


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


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

june 7, 2012, intended appellant's brief on motion for leave to appeal, court of appeal file number...

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