Pre-Hearing Brief INDEX INDEX _____________________________________________________________ i (a) a succinct outline of the facts the party intends to establish, _________________

1 (b) a concise statement of the issues to be dealt with by the court,_______________ 5 (c) a concise statement of the principles of law on which the party relies and citation of relevant statutory provisions and leading authorities, _______________ 5

Paragraph 1 Requested Order Rule 3.02 Extension or Abridgment ___ 5 Paragraph 2 Rule 2.04 No procedure provided by Rules of Court_____ 6 Paragraph 3 requested Order Rule 23.01(1)(a), 23.01(1)(b) and 23.01(2)(c) ____________________________________________________ 7 Part 1 Rule 23.01(1)(a)and 23.01(1)(b) _______________________ 7
TEST 1 - Pleading Disclose A Cause of Action _____________ 11

Part 2 23.01(2)(c) _______________________________________ 20 Limitation of Actions Act (S.N.B. 2009, c. L-8.5)________________ 22

Section 5(1) _________________________________________ 22 Section 5(2) _________________________________________ 23 Private interest standing_______________________________ 26 Public interest standing ________________________________ 26 Section 6___ _________________________________________ 27 Conclusion __________________________________________ 28

Res Judicata (MC0642/09 and FC/148/11)__________________ 34

Paragraph 4 requested Order Rule 76.1 and Paragraph 5 Interim Prohibition Order Rule 76.1 ________________ 35 The Law of the Case ________________________________________ 36 Paragraph 6 requested Order Costs _____________________________ 47 Cost Orders In Favor Of Self-Represented Litigants __________ 47 Solicitor-Client Costs ____________________________________ 54 Paragraph 7 requested Order Such further and other Order a Court deems just ____________________________________________ 61 Consideration of Rule 37.03 ______________________________ 61 Bald or Boiler plate Assertions ____________________________ 62 Paragraph 7c, 7d, and 7e TEST RE: VEXATIOUS ACTION ________ 63
TEST 2 - Abuse of Process ___________________________________________69

Response to paragraph 7d of Respondents Motion _________________ 72

(d) a concise statement of the relief sought by the party. ____________________ 77

ii

(A) SUCCINCT OUTLINE OF FACTS INTENDING TO ESTABLISH 1. The Applicant Andr Murray (hereinafter Applicant) has not, regarding residential tenancy

matters, till this date, filed a Application Charter challenge nor has the Applicant requested a declaration of constitutional invalidity of provincial statutes. 2. The Applicant has not persistently and or without reasonable grounds commenced or conducted

vexatious proceedings in the Court of Queens Bench. The Applicant is a self-represented litigant, who is progressing through legal procedure, as best he can and as he comprehends, according to the Rules of Court. Furthermore, as will be explored throughout this brief, there is no redundancy or re-litigation between the various actions, however, they may have similar or overlapping factual foundation, nevertheless, each has a unique motivating force, tort and a anticipated relief that which is distinct, therefore, requiring differing procedures and or actions, that the remedy may be granted. 3. If this Honourable Court were to issue the following Order, as pursuant to the Orders as found

requested within the Court Filed subject Motion, by Royal Bank of Canada; please find excerpt of subject Order following hereafter: Order prohibiting the Applicant, Andre Murray, from commencing and/or continuing this, or any, proceeding or, in the further alternative, any proceeding against 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan, in the Court of Queens Bench, except with leave of a Judge of the Court of Queens Bench pursuant to Rule 76.1 or if this matter is to be adjourned, far any reason, an Interim Order , prohibiting the Applicant, Andre Murray, from commencing and/or

continuing this, or any, proceeding or, in the further alternative, any proceeding against 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan, in the Court of Queens Bench, except with leave of a Judge of the Court of Queens Bench pursuant to Rule 76.1; this subject herein above mentioned Order, as is now being requested, if granted, would then constitute: law of the case. and consequently may be determined to be overbread and/or a violation of the Charter, therefore, could be seen by the public to be constitutionally invalid, furthermore, would be subject to a judicial review and blatantly a matter of Charter challenge. 4. Please note that CanLII is a non-profit online legal database managed by the Federation of Law

Societies of Canada, whose goal as they themselves have published, is to make Canadian law accessible for free on the Internet. This website provides access to court judgments, tribunal decisions, statutes and regulations from all Canadian jurisdictions. It is noteworthy, that a search of CanLII reveals, that no decision has yet been reported, or recorded within CanLII, of where a litigant has successfully litigated using Rule 76.1 of the Rules of Court to thereby cause an Order to be issued to an opposing party

requiring that a preliminary review and or for that reason must seek leave of a Judge of the Court of Queens Bench before commencing and/or continuing any proceeding. No history to date! 5. The subject Prohibition Order, requested by the RESPONDENT 501376 N.B. Ltd., a body

corporate (hereinafter 501375 N.B. Ltd.,) is overbreath and not appropriate in these circumstances. 501375 N.B. Ltd., should fail to meet the requirements of the plain and obvious test, abuse of process test and vexatious action test. 6. 7. 501375 N.B. Ltd., cannot establish that the Applicant Charter application matter is res judicata. This Honourable Court must recognize that Andre Murray the Applicant has not made a Statement of

Claim, as this is an application regarding Charter infringements only. It is up to agents for the Province of New Brunswick or the Federal Government of Canada to oppose such a Charter challenge. Furthermore, the pleadings (Application) must be liberally interpreted and read generously to accommodate drafting deficiencies; and where a generous reading of its provisions fails to breathe life into a pleading, all suitable amendments should be allowed, so that the merits of this claim may be heard. 8. In Court File number MC/0642/09, no tort matters regarding unjust enrichment and conversion of

property (the original cause of action) have been determined yet, no trial, merely preliminary motions. The Honourable Court of Appeal Justice Richard Bell confirmed this fact conclusively stating at paragraph 8, I conclude the motion judges decision regarding the five motions did not finally dispose of the litigation or any part of the lis pleaded between the parties. The issues of unjust enrichment, damages and whether a sale was lost remain to be adjudicated upon. A true copy of Court of Appeal File number 142-11-CA reasons for not granting Leave to Appeal are attached to the Applicants supporting Affidavit as Exhibit A. 9. The only matters being dealt with, within Court of Appeal File number 142-11-CA was the

Notice of Motion for Leave to Appeal, from the five motions Oral decision of Court File number MC/0642/09, which was denied. The merits of the appeal were never heard before a Court of Appeal Tribunal. 10. The only matters dealt with by Supreme Court of Canada File number 34642 was the Leave to

Appeal, which was denied. The merits of the appeal from the New Brunswick Court of Appeal decision, Court File number 142-11-CA, to deny the Leave to Appeal, were never heard.

11.

It is noteworthy to highlight the difference between subject matter of actions and cause of

action for Court File numbers MC/0642/09, FC/148/11, FC/210/11 and FM/27/11. These are the fact or combination of facts that gives a person the right to seek judicial redress or relief against another. Also when put another way, the legal theory forming the basis of a lawsuit or the grounds (as violation of a right) that entitle a plaintiff to bring a suit. The four Court File numbers and their respective cause of action are summed up in the following paragraphs. 12. In Court File number MC/0642/09, Plaintiffs Royal Bank of Canada and 501376 N.B. Ltd.

wanted vacant possession of 29 Marshall Street after an alleged sale of the Mortgagee Deed occurred, please note this subject sale was without Notice to Residential Tenancy Residents, they further claim the Defendant Andr Murray is liable for damages for the tort of unjust enrichment and conversion of property. A true copy of Notice of Action with Statement of Claim FORM 16C is attached to the Applicants supporting Affidavit as Exhibit B. 13. In Court File number FC/148/11, Plaintiff Andr Murray sought damages against the Defendant

Royal Bank of Canada and 501376 N.B. Ltd. for unlawful without Notice Mortgage Sale, which caused a loss of an $80,000 Mechanics Lien Claim and $80,000 in tangible assets and equity in the property known as 29 and 31 Marshall Street, Fredericton, N.B. A true copy of Notice of Action FORM 16A is attached to the Applicants supporting Affidavit as Exhibit C. 14. In Court File number FC/210/11, Plaintiff Andr Murray sought damages from various

Defendants for an illegal, unlawful eviction occurring October 23, 2009, without notice at 29 and 31 Marshall Street and no Court Order for 31 Marshall Street, Fredericton, N.B.A true copy of Notice of Action FORM 16A is attached to the Applicants supporting Affidavit as Exhibit D. 15. In Court File number FM/11/11, Plaintiff Andr Murray sought declaration of a Charter breach

from impugned application of the Residential Tenancies Act, S.N.B. 1975, c. R-10.2 and the Property Act, R.S.N.B. 1973, c. P-19, also a stay of proceedings until the matter is resolved. A true copy of the Notice of Application is attached to the Applicants supporting Affidavit as Exhibit E 16. Decisional law has emphasized that for a claim of res judicata to be realized, each element of the

initial test must be present. The initial res judicata test requires: 1) a judgment; 2) on the merits; and 3) in a former suit. 17. 501375 N.B. Ltd., cannot begin to meet the initial requirements for the initial res judicata test,

simply because the Applicant has never made an application, for a declaration of Charter issues, regarding New Brunswick residential tenancy matters.

18.

Beyond these preliminary requirements, application of res judicata requires that certain

similarities exist between the previous action and the new one. These similarities, often called the four identities which are: a. 1) Identity in the thing sued for; b. 2) Identity of the cause of action; c. 3) Identity of persons and of parties to the action; d. 4) Identity of the quality in the persons for or against whom the claim is made. 19. Please Note that the herewithin above referenced four legal cases of which the 501375 N.B. Ltd.,

relies upon to establish their argument of res judicata, the four identities are so dissimilar, that, it is obvious the 501375 N.B. Ltd., will not be able to avail itself of the defence of res judicata. 20. 501375 N.B. Ltd., has made many boiler plate claims, that, which should not be accepted by this

Honourable Court, because there is not enough particularity to support them. 21. The Applicant is a self-represented Litigant and is proceeding as best he knows how, to navigate

the legal process which is congruent with the Rules of Court and jurisprudence. Every motion, application and action is based on recognizable tort, and the Applicant wants to believe in the validity of the legal route to finding relief in this society of ours. If the submissions are longer than the typical documents prepared by a lawyer, it may be because of the inexperience of the Applicant, or it is the volume required to thoroughly present the case law, jurisprudence and or perhaps argue the point of law to its conclusion. Please note there are no rules of court, which dictate the length of briefs for submission to the Court of Queens Bench.

(B) CONCISE STATEMENT OF ISSUES

Should the Court grant the eight orders as requested by 501376 N.B. Ltd.in their Motion dated July 3, 2012? 22. In reviewing this subject Motion, the Applicant takes the position that the Court should not grant

the requested orders. Please see the reasons and argument which follow in section (C). 23. Applicant asserts that through this convoluted and expansive subject Motion filed by 501375

N.B. Ltd., it is trying to distract and confuse the issues before this Honourable Court. If this Motion were

to be successful, 501375 N.B. Ltd., will have effectively removed the Applicants ability to have important Charter issues resolved. This would in effect be a collateral attack against unresolved Charter issues, which have yet to be resolved, instead of having the matter decided on its merits. Remember that 501375 N.B. Ltd., had no obligation to respond to this Charter application. A response was only incumbent upon the Province of New Brunswick or the Federal Government to oppose such an application. 24. 501375 N.B. Ltd., is taking a Charter challenge, which should be a fair, expeditious, and already

complex procedure, and instead through this expansive Motion (prolix), has turned it into a procedural quagmire by causing this Charter challenge to be postponed (dilatory tactic) from the originally scheduled hearing date of July 13, 2012, so that now it has taken five months before it will be heard, as it has been rescheduled for December 17, 2012.

25.

If successful with this Motion, 501375 N.B. Ltd., will succeed in obstruction of justice therefore

and thereby causing the Applicants Charter challenge not to be heard. 501375 N.B. Ltd., has claimed the matter is res judicata, and would have the Applicant barred from ever having these matters decided upon their merits. This would be a miscarriage of justice, therefore discrediting the administration of justice

(C) CONCISE STATEMENT OF LAW RELIED UPON Paragraph 1 Requested Order Rule 3.02 Extension or Abridgment 26. Rule 3.02 of the Rules of Court regarding extension or abridgment states: (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules. (2) A motion for extension of time may be made either before or after the expiration of the time prescribed. Rules of Court, N.B. Regulation 82-73, Rule 3.02 27. There appears to be no need to address the subject of abridgement of time for service for this

subject Motion. That matter is now irrelevant, since this motion filed by 501376 N.B. Ltd., was originally scheduled for July 13, 2012, at 9:30 a.m. and the hearing of same was adjourned to December 15, 2012, almost five month later. This Honourable Court should not grant such an order. 28. If 501376 N.B. Ltd., files and serves material conflicting with the Rules of Court and requires a

abridgement of time, then it is reasonable and just that an adjournment be granted so that the Applicant can consider the new material.

Paragraph 2 Rule 2.04 No procedure provided by Rules of Court 29. Rule 2.04 of the Rules of Court regarding where no procedure was provided states In any matter of procedure not provided for by these rules or by an Act the court may, on motion, give directions. Rules of Court, N.B. Regulation 82-73, Rule 2.04 30. stated: [4] In my view, there is no merit to the argument that Rule 2.04 can be used as a launching pad for the judicial intervention being sought here. This rule may only be used when directions are needed on a matter of procedure not otherwise provided for in the rules or in a statute. Rules 62.21(2) and (3), as interpreted by this Court in various cases, set out the procedure for the production of further evidence on appeal. It follows that the impasse in relation to the 3rd ground of appeal cannot be blamed on a so-called procedural void. [5] Moreover, no solution is proposed for the procedural dilemma. This brings me to state the obvious, namely, that the Court cannot act as Mr. Carriers legal counsel. That is precisely the role I am asked to play in this request for directions under Rules 2.04 and 62.22 (d). For this reason, and as I indicated at the hearing, I cannot grant the motion for directions. Carrier v. Carrier, 2006 CanLII 34964 (NB CA), paras.4-5 31. As above, I similarly assert that there is no merit to the argument that Rule 2.04 can be used as a Regarding Rule 2.04, the Court did address same in Carrier v. Carrier, Chief Justice Drapeau

launching pad for the judicial intervention being sought here. This rule may only be used when directions are needed on a matter of procedure, not otherwise provided for in the rules or in a statute. The relief 501376 N.B. Ltd., is seeking is canvased by the Rules of Court. Rule 23.01 which sets out the procedure for striking a pleading or granting a stay. If 501376 N.B. Ltd., wants the striking of a pleading or granting a stay ordered, it should do so by way of Rule 23.01 of the Rules of Court. Rule 27.09 provides for striking out a pleading or other document. Rule76.01 sets out the procedure for a prohibition order. If 501376 N.B. Ltd., wants to have a prohibition ordered, it should do so by way of Rule 76.01 of the Rules of Court. 32. Rule 2.04 is to be used in any matter of procedure not provided for by the Rules of Court or by a

New Brunswick statute. Therefore, this Honourable Court should not grant the requested motion for directions, pursuant to Rule 2.04 of the Rules of Court. Paragraph 3 requested Order Rule 23.01(1)(a), 23.01(1)(b) and 23.01(2)(c) Part 1 - Rule 23.01(1)(a)and 23.01(1)(b) 33. Rule 23.01(1)(a), 23.01(1)(b) of the Rules of Court is, regarding the striking of pleadings, as follows: 23.01 Where Available

(1) The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court (a) for the determination prior to trial, of any question of law raised by a pleading in the action where the determination of that question may dispose of the action, shorten the trial, or result in a substantial saving of costs, (b) to strike out a pleading which does not disclose a reasonable cause of action or defence, Rules of Court, N.B. Regulation 82-73, Rule 23.01 34. The object of permitting the striking out of a statement of claim must be to rid the Court of

frivolous actions, including actions in which no reasonable cause of action is disclosed on the face of the pleadings. Please note that this Application as filed by Andre Murray is not an action with a statement of claim. This is a Charter challenge, challenging the constitutionality of two provincial statutes. It is up to the Province or the Federal Government agents to argue against this application. These rules should not apply to applications, but if this Honourable Court somehow finds that they do, the argument why the subject application should not be struck in whole or in part follows below. 35. The thrust of the argument brought by 501376 N.B. Ltd., is that the Applicants application does

not disclose a reasonable cause of action against them and should be struck under Rule 23.01(a) and 23.01(b) and 23.01(2)(c) of the Rules of Court. This position asserted by 501376 N.B. Ltd.,, is of course absurd and or impugned on its face, as the application is not against the Royal Bank. Apparently it must be highlighted for solicitor Hugh J. Cameron who (in this matter) represents 501376 N.B. Ltd.,, that provincial legislation is what is under scrutiny by way of this Charter challenge application; there is no requirement or obligation for 501376 N.B. Ltd., to argue anything. This is not an application for relief against 501376 N.B. Ltd.. 36. In using a substantive, in-depth examination approach of the question as to whether or not in this

case the Applicants application discloses a cause of action, the Court may hypothetically accept the allegations set out in the application as having been proven. Precedent has established that if after having arrived at this subject assumption, a Court subsequentially finds that it is plain and obvious that the pleadings do not disclose a cause of action, the claim may be struck out. 37. The common test that governs applications under Rule 23.01(a) and 23.01(b) of the Rules of Court

has always been and remains a simple one, assuming that the facts as stated in the statement of claim can be proven, it must be plain and obvious that the Applicant's application, or portions thereof, discloses no reasonable cause of action!

38.

Is there a defect in the statement of claim that can properly be characterized as a radical defect? If

it is plain and obvious that the action is certain to fail because it contains some such radical defect, then the relevant portions of the statement of claim may properly be struck out. The purpose of the plain and obvious test is to allow such an action to proceed, even although it was certain to fail, would be to permit the 501376 N.B. Ltd., to be subject to scandalous, frivolous or vexatious action, and would therefore amount to the very kind of abuse of the Court's process, that the Rules of Court, specifically Rule 23.01(a) and 23.01(b) is meant to prevent. But, if there were a chance that the Applicant might succeed, then the Applicant should not be driven from the judgment seat. Neither the length and complexity of the issues of law and fact that might have to be addressed, nor the potential for 501376 N.B. Ltd., to consequentially present a strong defence should prevent an applicant from proceeding with his or her case. 39. This Honourable Court must recognize that there is no statement of claim here. This is an

application regarding Charter infringements which can not affect 501376 N.B. Ltd.,. It is up to agents for the Province of New Brunswick or the Federal Government of Canada to oppose such a Charter challenge. Furthermore, the pleadings must be liberally interpreted and read generously to accommodate drafting deficiencies; and where a generous reading of its provisions fails to breathe life into a pleading, all suitable amendments should be allowed, so that the merits of this claim may be heard. 40. In Dostie v. Royal &Sunalliance Insurance Company of Canada, Justice J.A. Rginald Lger

provided insight regarding Rule 23.01(1)(a) as follows: [6] The courts function under Rule 23.01(1)(a) is limited to determining a point of law raised by a pleading. [7] At paragraph 19, in Norris v. Lloyds of London (supra), Drapeau, J.A. set out the courts mandate in a motion under Rule 23.01(1)(a), as follows: As I read rule 23.01(1)(a), the courts function is limited to determining a point of law raised by a pleading. Its mandate is not to actually dispose of . . . the trial or to actually bring about a substantial saving of costs. If the potential for achieving any of these results exists, the court may exercise its discretion and determine the point of law. To state it otherwise, the possibility that the determination of a question of law may dispose of the action is a condition precedent to the exercise of discretion envisaged by rule 23.01(1)(a): the actual disposal of the action is not effected under it, a companion or follow-up motion being required. [8] Moreover, it is well established that in these cases, the pleadings must be liberally interpreted. [9] Pleadings are the basis of any motion under Rule 23.01(1)(a). [10] Under Rule 23.01(1)(a), the court must be satisfied, in exercising its discretion, that there is a possibility that the determination of a question of law raised by the pleadings may dispose of the action, shorten the trial, or result in a saving of costs. Dostie v. Royal &Sunalliance Insurance Company of Canada, 2004 NBQB 195 (CanLII), paras. 6 to 11

41.

The legal analysis required by a court prior to striking a pleading pursuant to Rule 23 was clearly

established in Corcoran v. Gerwill Ltd., in which the Court confirmed that a determination made pursuant to Rule 23 is confined to an assessment of the pleadings: On such an application, a judge is confined to considering the allegations contained in the Statement of Claim and any particulars relied upon by the Plaintiff, and must assume that all such allegations are true. It is only where the pleadings show on their face that the action is not maintainable or where an absolute defence exists that the Court will Strike out the claim. The object of permitting the striking out of a Statement of Claim is to get rid of frivolous actions, including actions in which no reasonable cause of action is disclosed on the face of the pleadings. Corcoran v. Gerwill Ltd., LeBlanc and LeBlanc(1983), 45 N.B.R. (2d) 86 (C.A.), pp. 88 and 89 42. In Sewell v. ING Insurance, the Honourable Chief Justice J. Ernest Drapeau stated the following

regarding Rules 23.01(1)(b) and 27.09: A. The Motion to strike under Rule 23.01(1)(b) [22] As noted, Rule 23.01(1)(b) provides that a defendant may, at any time before the action is set down for trial, apply to the court to strike out a Statement of Claim that does not disclose a reasonable cause of action. [23] The question before the motion judge was not whether Ms. Sewells action was factually meritorious, an issue determinable prior to trial on a motion for summary judgment under Rule 22.01(3), but whether her Statement of Claim disclosed a reasonable cause of action. I emphasize, once again, that Rule 23.01(1)(b) authorizes the striking of the Statement of Claim, not the striking of a Notice of Action or the dismissal of the action [24] InCaissie the Court explained the procedure that governs motions such as the one brought by ING in the case at bar: Rule 23.01(1)(b) allows for a motion to strike out a pleading on the ground that it does not disclose a reasonable cause of action or defence. When the moving party is the defendant, the question to be answered by the court is the following: Assuming the facts as stated are true, is it "plain and obvious" that the Statement of Claim discloses no reasonable cause of action?.... The object of Rule 23.01(1)(b) is to permit the striking of a pleading that on its face does not disclose a cause of action or defence. Accordingly, evidence purporting to provide a factual foundation for the action or defence is inadmissible, except with leave of the court under Rule 23.02. In the usual case, the court's decision under Rule 23.01(1)(b) will be based on a record comprised exclusively of the pleadings. Despite the significant evidentiary constraints imposed, expressly and implicitly, by Rule 22, the court is required to consider a significantly greater record when called upon to determine a motion for summary judgment. [Emphasis added.] [25] The Court re-affirmed its commitment to that approach in Modern Construction (1983) Ltd. v. Enbridge Gas New Brunswick Inc. et al. 2003 NBCA 78 (CanLII), noting that the judges of this Province have, without fail, applied the test articulated in Hunt to determine motions under Rule 23.01(1)(b) and adding, at para. 21, that in making that determination, they were required to accommodate drafting deficiencies by a generous reading of the contested text.

[26] The principles that inform the determination of a defendants motion to strike under Rule 23.01(1)(b) are well settled and can be summarized as follows: (1) the only question for judicial resolution is whether it is plain and obvious that the Statement of Claim fails to disclose the essential elements of a cause of action tenable at law. That conclusion should be reached only in the clearest of cases; (2) correlatively, absent exceptional circumstances, the court must accept as proved all facts asserted in the Statement of Claim and abstain from looking beyond the pleading itself and any documents referred to therein To expand the exercise beyond those limits would operate to morph the motion under Rule 23.01(1)(b) into an application for summary judgment under Rule 22, the appropriate vehicle to determine prior to trial whether there is factual merit to a claim; (3) the Statement of Claim is to be read generously to accommodate drafting deficiencies; and (4) where a generous reading of its provisions fails to breath life into a pleading, all suitable amendments should be allowed . Those principles reflect the Legislatures injunction that the Rules be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits: Rule 1.03. Sewell v. ING Insurance Company of Canada, 2007 NBCA 42 (CanLII), paras. 22 to 26 43. Furthermore in Johnston v. McGibbon, Justice William T. Grant stated the following regarding [5] The test to be applied in a motion to strike out a Statement of Claim, or portions thereof, for failing to disclose a reasonable cause of action was enunciated by Madam Justice Wilson of the Supreme Court of Canada in the case of Hunt v. Carey Canada Inc.1990 CanLII 90 (S.C.C.), [1990] 2 S. C. R., 959, where she stated at p. 980: assuming that the facts as stated in the Statement of Claim can be proved, is it plain and obvious that the plaintiffs statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be driven from the judgment seat. Neither the length and complexity of the issues, the novelty of the cause of action nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. [6] Madam Justice Wilson also approved the following limitation to the use of this rule applied by Tysoe, J.A. in Minnes v. Minnesreflex, [1962] 39 W. W. R. 112 where he stated at p. 122: So long as the statement of claim as it stands or as it may be amended discloses some question fit to be tried by a judge or jury, the mere fact that the case is weak or not likely to succeed is no ground for striking it out [7] The evidence that the Court must consider in a motion under Rule 23.01(b) was discussed by the New Brunswick Court of Appeal in the case of Caissie v. Snchal Estate 2001 NBCA 35 (CanLII), (2001), 237 N.B.R. (2d) 232, where the Court stated at p. 239: The object of Rule 23.01(1)(b) is to permit the striking of a pleading that on its face does not disclose a cause of action or defence. Accordingly, evidence purporting to provide a factual foundation for the action or defence is inadmissible, except with leave of the court under Rule 23.02. In the usual case, the courts decision under Rule 23.01(1)(b) will be based on a record comprised exclusively of the pleadings Johnston v. McGibbon et al., 2004 NBQB 280 (CanLII), paras. 5 to 7

Rules of Court, Rule 23.01(b) and Rule 27.09(b) and (c):

44.

In conclusion the principles necessary for any party to successfully motion the Court to strike

under Rule 23.01(1)(b) are well settled and can be summarized as follows: (1) the only question for judicial resolution is whether it is plain and obvious that the Pleading fails to disclose the essential elements of a cause of action tenable at law. That conclusion should be reached only in the clearest of cases; (2) correlatively, absent exceptional circumstances, the court must accept as proved, all facts asserted in the Application and abstain from looking beyond the pleading itself and any documents referred to therein; (3) the Statement of Claim is to be read generously to accommodate drafting deficiencies; and (4) where a generous reading of its provisions fails to breathe life into a pleading, all suitable amendments should be allowed. 45. In this subject matter before the Court, this is an application pursuant to the Charter for a

declaration that portions of two public statutes, namely New Brunswicks Residential Tenancy Act, supra, and the Property Act, supra, violate Charter protected rights, and this Honourable Court should declare the subject portions of the aforementioned acts stayed or struck until the Government through its Legislative Assembly of New Brunswick causes the subject legislation to become Charter compliant. 46. Those aforementioned principles in paragraph reflect the determination of the Provincial

Legislative Assembly that the issued ratified rules be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits as stated by Rule 1.03 of the Rules of Court. 47. This application is a valid legal process based on recognizable legal grounds, according to

established procedures, with proper notice. There is no fatal procedural defect or lack of valid claim which could form the basis of a dismissal of this application. 48. Whereby having considered all the herein above provided arguments, this Honourable Court

should find in these circumstances to deny the 501376 N.B. Ltd.,s request for an order striking this application or portions thereof.

TEST 1 - Pleading Disclose A Cause of Action 49. The authorities clearly establish that the first test for the Court to conduct is a test to discover if the pleadings disclose a cause of action. To do this a court is to look at the pleadings and assume the pleadings as if proven, then determine whether or not it is plain and obvious that the application discloses a reasonable cause of action or not. Proceeding on this basis, that the Court accepts everything

in the application as proved, it should be plain and obvious to anyone, let alone a learned trial judge, that the application discloses a reasonable cause of action. 501376 N.B. Ltd.,s argument with respect to the pleadings being vexatious and frivolous comes back to resting upon the foundation that the pleadings, this application, does not disclose a reasonable cause of action. This, 501376 N.B. Ltd.,s assertion that my Charter Challenge application, does not disclose a reasonable cause of action, and is on its face false and can be easily dismissed by this Honourable Court as meritless. 50. In Songhurst v. Shawnigan, Master William McCallum, provided the following regarding the

absence of allegations which would support damages as follows: [13] There are no allegations plead in the Statement of Claim which would support damages for unjust enrichment, oppressive conduct by the Association, or arbitrary, vindictive and malicious acts by the Association. [14] The Plaintiffs ought not to be able to pursue the claims for damages for unjust enrichment, oppressive conductive and arbitrary vindictive and malicious acts. Those claims are subsumed in the general, special and punitive damages claims which include damages for trespass. [15] In summary, even if the allegations in the amended Statement of Claim were proven, the Plaintiffs are bound to fail in their claims for damages for unjust enrichment, damages for oppressive conduct, and damages for arbitrary vindictive and malicious acts. There are no allegations plead which support those claims. Songhurst v. Shawnigan Lake Recreation Assn., 1995 CanLII 2125 (BC SC), paras. 13 to 15 51. First there are no allegations plead in 501376 N.B. Ltd.,s motion which would support a claim of

frivolous, vexatious conduct amounting to an abuse of process by this application. 52. Secondly, the Applicant in the May 31, 2012, filed Application has provided a thorough explanation

of the rules governing Charter applications and how this subject application is compliant with the corresponding rules and procedures, further that the Court should grant the application on its merits. If the allegations in the application are proven, the Applicant is bound to succeed in receiving the requested relief, pursuant to the Charter, there are allegations plead which support those claims. The grounds provided in the application are brief but thorough. 53. 501376 N.B. Ltd., claims to the effect that because the Applicant is involved in several

proceedings regarding several different causes of action, in the persona as a self-represented defendant, plaintiff and applicant, that this must be evidence of abuse of process. In summary, when evaluating these 501376 N.B. Ltd., claims, moreover, even if the allegations of being involved in several different actions are proven, the Respondents are bound to fail in their claims of abuse of process. There are no allegations plead which support those claims of abuse of process, and the tests are not satisfied for a court to rule in their favor. 501376 N.B. Ltd.,hypocrisy of such a position is again offensive to ones sensibilities as 501376 N.B.

Ltd., is continually in Court of Law itself and is at any given time throughout the year an applicant, plaintiff and or defendant; as such, their claims against Andre Murray cannot be evidence of abuse of process. 54. 501376 N.B. Ltd., claims the Applicants pleadings may be struck on the ground that they

disclose no reasonable claim; it is plain and obvious that these 501376 N.B. Ltd., claims cannot succeed, further absurd and without merit 501376 N.B. Ltd., claims that the Applicants claim should be struck as it is frivolous or vexatious; and is an abuse of the process of the court. 55. A review of the authorities shows that the essential element of the tort of abuse of process is that

the abuser must have used the legal process for a purpose other than that which it was designed to serve, in other words, for a collateral, extraneous, ulterior, improper, or illicit purpose. The gist of the tort is the misuse or perversion of the Courts process and there is no abuse of process when a litigant pursues regular legal process to its proper conclusion, such as in this matter of a Charter challenge application before the Court. 56. The powers to strike an action are derived from two parallel sources. First they are conferred by

Rules of Court, and secondly they are exercisable under the Courts inherent jurisdiction. These sources are cumulative, not alternative, and may be invoked by the parties and employed by the Court simultaneously. However the powers are permissive, not mandatory, and they confer a discretionary jurisdiction which the Court will exercise in the light of all the circumstances concerning the pleadings. This discretion will be exercised by applying two fundamental, although, complementary principles. The first principle is that the parties will not lightly be driven from the seat of judgment, and for this reason the Court will exercise its discretionary power with the greatest care and circumspection, and only in the clearest of cases. The second principle is that a stay or even dismissal of proceedings may often be required by the very essence of justice to be done, so as to prevent the parties being harassed and put to expense by frivolous, vexatious or hopeless litigation. 57. The power to strike out, stay or dismiss under the Courts inherent jurisdiction is discretionary. It

is a jurisdiction which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed, which does not apply in the matter before this Honourable Court. It ought to be exercised sparingly and only in exceptional cases. This is not an application in which it could be appropriate to strike or dismiss, and to do so will be a miscarriage of justice and bring the administration of justice into disrepute. 58. In Moncton Family Outfitters et al. v. Schelew, Justice Peter S. Glennie analyzed how a litigant may rely upon Rule 27.09 to strike a statement of claim, as follows:

[31] In New Brunswick a Defendant alleging abuse of process on the part of a Plaintiff has the right to apply for Summary Judgment or rely upon Rule 27.09 to strike the Statement of Claim. Apart from the Rules, the Court has inherent jurisdiction to act in such an instance [32] In the case at bar, the Defendant has decided to plead abuse of process in his Statement of Defence. Counsel for the Plaintiffs argues that abuse of process cannot be pleaded as a defence to an action. I respectfully disagree. The defence of abuse of process has been invoked in various types of legal proceedings, including civil. [33] For example, in Levi Strauss Co. v. Roadrunner Apparel Inc. 1997 Carswell Nat. 2112 Federal Court of Appeal, the Plaintiffs brought an action for infringement of trademark. The Plaintiffs moved to strike out portions of the Statement of Defence. The Defendant pleaded that the action was frivolous and vexatious and intended to harass and intimidate the Defendant and that it amounted to an abuse of process. In its Statement of Defence, the Defendant stated that the Plaintiffs had threatened numerous jean manufacturers and/or vendors with legal action and had in fact commenced actions against some manufacturers/vendors of jeans in Canada. [34] The motions judge held that the Defendant supported its allegations with Statements of Fact. The Federal Court of Appeal upheld the motions judge. [35] The Plaintiffs in that case argued that the motive for bringing the lawsuit did not constitute a defence and that the allegations made by the Defendant were immaterial and irrelevant and would prejudice and delay the fair trial of the action. The Defendant wanted to establish that the abuse of process resided in the Plaintiffs action or course of conduct which was designed to harass the Defendant and other users of the trademark. [36] The Federal Court of Appeal concluded that the relevant portion of the impugned paragraph alleging harassment and intimidation stood to be decided on the principles applicable to an abuse of process of the Court and in that context motive was highly relevant. [37] Justice Letourneau writes at paragraphs 9 to 13: 9 The concept of abuse of process has developed both in substantive and procedural law. It is well settled law, from the point of view of substantive law, that an abuse of process is an actionable tort. As Henry J. stated in Tsiopoulos v. Commercial Union Assurance Co. when dealing with a counterclaim for damages for abuse of process: This cause of action arises when the processes of law are used for an ulterior or collateral purpose. It is defined as the misusing of the process of the courts to coerce someone in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate. It occurs when the process of the court is used for an improper purpose and where there is a definite act or threat in furtherance of such purpose. 10 In Flemings The Law of Torts, the learned author distinguishes between certain forms of abuse of legal procedure such as malicious arrest and execution and the concept of abuse of process. Quite distinct, however, are cases where a legal process, not itself devoid of foundation, has been perverted for some extraneous purpose, such as extortion or oppression. Here an action will lie at the suit of the injured party for what has come to be called abuse of process. 11 A review of the authorities shows that the essential element of the tort of abuse of process is that the abuser must have used the legal process for a purpose other than that which it was designed to serve in other words, for a collateral, extraneous, ulterior, improper, or illicit purpose. The gist of the tort is the misuse or perversion of the Courts process and there is no abuse when a litigant employs regular legal process to its proper conclusion, even with bad intentions. 12 Abuse of process has also been invoked as a procedural defence, especially in criminal law when the proceedings were oppressive or vexatious or offensive to the principles of fundamental justice and fair play. When successful, the defence has resulted in a stay of proceedings.

13 However, the procedural defence of abuse of process knows of no legal barrier in the sense that its application is not limited to the field of criminal law, but extends to other fields such as civil, constitutional or administrative law. [38] And at paragraph 15: 15 Finally, I wish to add that the difficulties for a defendant of proving a misuse or perversion of the process on the part of a plaintiff seeking to enforce its trade-mark through the legal process cannot be underestimated. However, this is not a valid ground for denying a defendant such possibility. [39] InMarineland of Canada Inc. v. Niagara Action for Animals 2004 Carswell Ont. 3821 the Plaintiff brought a motion to strike certain parts of the Statement of Defence and asserted that several allegations in the Statement of Defence were scandalous, frivolous or vexatious or constituted an abuse of process of the court. [40] InMarineland, the following is the paragraph in the Statement of Defence the Plaintiff sought to have struck: 59. Marineland has not brought this action for the purpose of recovering any such damages. Marineland has brought this action for the purpose of intimidating the defendants and silencing legitimate public discussion and debate upon matters of public interest. This action should be dismissed or stayed as an abuse of process. [41] Justice Henderson refused to strike the assailed paragraph and concluded as follows: 29 The plaintiff submits that Marinelands motive for litigating this matter is irrelevant. However, through paragraph 59, the defendants raise the defence of abuse of process. Although the law with respect to civil abuse of process in Ontario is not settled, it is certainly not plain and obvious that such a defence would not succeed. [42] The four elements required for a finding of an abuse of process are set out in Coughlan v. Westminer Can. Ltd.1994 CanLII 4094 (NS C.A.), (1994), 127 N.S.R. (2d) 241 (CA), at paragraph 123 where the Court quotes the Trial judge: Though the tort of abuse of process is also alleged it is unnecessary for me to deal with it other than to say it is a separate tort distinct from the tort of malicious prosecution with its own list of essential requirements, namely: 1. The defendant must have used the legal process; 2. He must have done so for a purpose other than that which the process in question was designed to serve, that is, for a collateral and illicit purpose. 3. He must have done some definite act or made some definite threat in furtherance of the purpose; and 4. Some measure of special damages must be shown [43] In applying the four elements process set out in Westminer, Counsel for Bernard Schelew argue: (1) The Plaintiffs are using the legal process in this action and in other actions; (2) Irving and MFO are using the legal process for a purpose other than that which the process was designed to serve and that is for a collateral and illicit purpose . The facts, as set out in the Statement of Defence, show that Irving threatened legal and other proceedings should the property management be removed from AI Since that time, the pleadings allege that, as a result of AI Enterprises being dismissed as property manager for the individual properties of Irvings four sons and for BRAM Enterprises and JAMB Enterprises, there has been a concerted course of conduct by which the litigation process has been used against BRAM, JAMB, Jeffrey, Michael and Bernard Schelew and their mother, Lillian Schelew. The purpose of this litigation is clearly to reek economic havoc on Bernard and his brothers.

(3) The abuse of process can only be understood in the context of all of the actions. The purpose of the pleading is to set out the background and the steps which have been taken and the threats which have been made in furtherance of the purposes set out above. (4) Some measure of special damages must be shown. This is a matter for proof at trial but it is self-evident from the costs associated with the various litigations that damages have been suffered by Bernard and the others. [48] With respect to the Courts inherent jurisdiction to strike an action or pleading, in University of New Brunswick Student Union Inc. v. Smith, supra, the Defendants in two separate actions sought an order dismissing or staying the Plaintiffs claims on the grounds, inter alia, that they were frivolous and vexatious, wholly without merit and an abuse of process. The Defendants relied upon both Rule 27.09 and the inherent jurisdiction of the Court. [49] In dismissing the two actions on the basis that they both were frivolous, vexatious, without merit and an abuse of process, Justice Dickson writes at paragraph 18 to 20: 18 The law applicable in this jurisdiction is essentially as set out in Halsbury (4th Ed.) Vol. 37 where in paragraph 430 it is stated: 430. Summary powers to strike out pleadings, dismiss actions and enter judgments. The court is invested with extensive powers to strike out pleadings and thereupon, or for other good reason arising from the making of the claim or defence, to dismiss actions by plaintiffs or to enter judgments against defendants. These powers are both salutary and necessary not only to enforce the basic rules of pleadings but also to dispose of proceedings which are hopeless, baseless or without foundation in law or in equity or are otherwise an abuse of the process of the court. The powers are exercised by the court by summary process, speedily and generally at an early stage of the proceedings, and they operate as a powerful, effective method of disposing of proceedings without a plenary trial. The powers are derived from two parallel sources. First they are conferred by rules of court and secondly they are exercisable under the courts inherent jurisdiction. These sources are cumulative, not alternative, and may be invoked by the parties and employed by the court simultaneously. However, the powers are permissive, not mandatory, and they confer a discretionary jurisdiction which the court will exercise in the light of all the circumstances concerning the offending pleading. This discretion will be exercised by applying two fundamental, although complementary, principles. The first principle is that the parties will not lightly be driven from the seat of judgment, and for this reason the court will exercise its discretionary power with the greatest care and circumspection, and only in the clearest of cases. The second principle is that a stay or even dismissal of proceedings may often be required by the very essence of justice to be done, so as to prevent the parties being harassed and put to expense by frivolous, vexatious or hopeless litigation. 19 Abuse of process has been described (ibid, para. 434) as follows: An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the court is misused. In such case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground, the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court. And, ibid, at para. 435: The power to strike out, stay or dismiss under the courts inherent jurisdiction is discretionary. It is a jurisdiction which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed; it ought to be exercised sparingly and only in exceptional

cases. However, for this purpose the court is entitled to inquire into all the facts and circumstances of the case, and to this end affidavit evidence is admissible. In a proper case the court may exercise its jurisdiction even if the application to strike out is made at a late stage of the proceedings. And, ibid, at para. 443: The most important ground on which the court exercises its inherent jurisdiction to stay proceedings is that of abuse of process. This is a power which, it has been emphasized, ought to be exercised sparingly and only in exceptional cases. It is not confined to cases where the endorsement of the writ or the pleading is an abuse of process, but may be exercised where the abuse extends beyond the endorsement or pleading and is demonstrated by almost inconvertible facts and circumstances proved by affidavit evidence, if necessary. It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed, but that he could not possibly succeed on the basis of the pleadings and the facts of the case. 20 One further principle applicable is the obvious one that whether an action may be deemed frivolous, vexatious, wholly without merit and/or an abuse of process must be assessed in the context of the particular circumstances of the case. [50] The New Brunswick Court of Appeal upheld Justice Dicksons decision except with respect to his award of costs. The Court of Appeals decision is reported at 1988 Carswell N.B. 261. Justice Rice writes at paragraph 3: 3 A court in its inherent jurisdiction and, under the Rules of Court, may exercise its discretion to dismiss proceedings which are being pursued for ulterior purposes such as the harassment of defendants or other persons and an Appellate Court will usually not interfere with the exercise of such discretionary power unless a very substantial injustice would otherwise result. [51] InPoulos v. Matovic[1989] O.J. No. 220, the Plaintiff restaurant owners were commercial tenants of the Defendant landlord. The Plaintiffs alleged that the landlord had commenced an action against them for the sole purpose of intimidating them into giving up possession of the leased property. The Plaintiffs therefore alleged abuse of the courts process and the torts of intimidation and willful infliction of nervous shock. [52] The Defendants in Poulos moved to strike out the Statement of Claim or portions of it or for particulars or for a stay of proceedings. [53] The tenant in its Statement of Claim alleged that the landlord had been guilty of breach of the lease and that by instituting various court proceedings had abused the process of the court in order to intimidate the tenant into delivering up possession. [54] The Court concluded that there was no cause of action disclosed based on abuse of process and struck that claim. Gravely, L.J.C.C. writes: ... In paragraph 27 of the Statement of Claim, it is claimed that the alleged abuse of process has as its intent the antagonizing, impoverishing and intimidating the tenantso that the tenant will be forced out of business and leave the demised premises, thus enabling the landlord to re-rent or develop the property. The proceedings taken by the landlord have, as one of their objectives, the legal recognition of the landlords claim to possession. That the legal steps brought for a legitimate purpose by the landlord may have the effect also of antagonizing, impoverishing or intimidating the tenant is, in my view, not enough to justify a claim based on an abuse of process. Any law suit may have that effect on a party. In Atland Container Ltd. v. Macs Corp. Ltd. et al(1974) 7 O.R. (2d) 107, Parker, J. said at p. 111: In the case at bar the defendant claims for damages because the institution and prosecution of the plaintiffs action has caused and will continue to cause serious financial loss to the

defendant. If followed to its logical conclusion every plaintiff would be open to such a claim. However, the law re the abuse of process is very narrow in scope. It is only where the process of the Court is used for an improper purpose and where there is a definite act or threat in furtherance of such a purpose. In my view the alleged antagonizing, impoverishing and intimidating fall within the same possible effects of any action as the serious financial loss referred to by Parker J. Those results are not extrinsic to the legal proceedings. Nor would it appear has any act or threat been pleaded that would co-ordinate with any purpose extrinsic to the litigation. In my view there is no cause of action disclosed based on abuse of process and that claim will be struck. [55] InAtland Containers Ltd. v. Macs Corp. Ltd. 1974 Carswell Ont. 388, the Ontario Supreme Court dealt with an application to strike out the counterclaim of the Defendant. The counterclaim alleged that the institution and prosecution of the action had already caused and would continue to cause serious financial loss to the defendants in their business. The Defendant then plead that the Plaintiff had instituted and prosecuted the action for an improper purpose, namely to limit lawful competition within the corrugated box industry. [56] Justice Parker writes at paragraphs 11 and 12: 12 In the case at bar the defendant claims for damages because the institution and prosecution of the plaintiffs action has caused and will continue to cause serious financial loss to the defendant. If followed to its logical conclusion every plaintiff would be open to such a claim. However, the law re the abuse of process is very narrow in scope. It is only where the process of the Court is used for an improper purpose and where there is a definite act or threat in furtherance of such a purpose. No such act or threat is pleaded in this case. In any event the counterclaim is not a proper subject-matter for inclusion in this action since the causes of action are not similar in type. The counterclaim will therefore be struck out with costs. [57] InScintilore Explorations Ltd. v. Larche1999 CanLII 14948 (ON S.C.), (1999), 48 B.L.R. (2d) 248 (Ont. S.C.J.), Justice Sharpe had before him a claim for abuse of process both within and outside the action. [58] At page 314, Justice Sharpe accepted the elements of the tort of abuse of process as described by J. Irvine, `The Resurrection of Tortious Abuse of Process, (1989) 47 C.C.L.T. 217 at 218, as follows: (a) the plaintiff has been subjected to legal process by the defendant (b) this has been done predominantly to further some indirect, collateral and improper purpose; (c) some definite act or threat has been made in furtherance of that purpose; and (d) some measure of special damage has resulted. [59] Justice Sharpe referred to Irvine, supra, at p. 221: There must be a collateral purpose entirely discrete from any which the impugned proceedings were designed to serve within the legal system; financial loss or humiliation which would naturally tend to result from the action in question just will not do. [60] Justice Sharpe accepted the proposition that the predominant purpose must be outside the ambit of the legal claim on which the Court is asked to adjudicate. [61] In the case before him, he held at p. 317 that: Putting forth a false claim on false evidence does not establish liability for abuse of process. Similarly, the pursuit of tactics that prove unsuccessful in a hard fought trial will not ground an action in tort. The issue is whether the action was used for a predominant purpose outside the ambit of the legal claim on which the Court is asked to adjudicate. [62] On the facts before him Justice Sharpe concluded that the tort had not been made out.

[63] As to the ingredients required for a valid plea of abuse of process, I refer to Fleming on Torts 4th ed. (1971) pp. 547-8: The gist of this tort lies in the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to serve. (Rest. 682) It involves the notion that the proceedings were merely to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate The essential elements of abuse of process are first, a collateral and improper purpose such as extortion, and secondly, a definite act or threat, in furtherance of a purpose not legitimate in the use of the process. Some such overt conduct is essential, because there is clearly no liability when the defendant merely employs regular legal process to its proper conclusion, albeit with bad intentions. [64] In the case at bar, I am not satisfied that the action commenced by MFO and Irving Schelew against Bernard Schelew involving a single issue, namely the alleged loss of value of the KHI shares, is being used for a predominant purpose outside the ambit of the legal claim set forth in the Statement of Claim. I am not satisfied that there is a collateral improper purpose. Moncton Family Outfitters et al. v. Schelew, 2005 NBQB 273 (CanLII), paras. 31 to 50 59. As stated above in Moncton Family Outfitters et al. v. Schelew, supra, An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the court is misused. Moncton Family Outfitters et al. v. Schelew, supra, para. 49 60. The most important ground on which the Court exercises its inherent jurisdiction to stay

proceedings is that of abuse of process. This is a power which, it has been emphasized, ought to be exercised sparingly and only in exceptional cases. It is not confined to cases where the endorsement of the writ or the pleading is an abuse of process, but may be exercised where the abuse extends beyond the endorsement or pleading and is demonstrated by almost inconvertible facts and circumstances proved by affidavit evidence, when necessary. It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless, or in circumstances which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff may not, or probably would not succeed, but that the accused could not possibly succeed on the basis of the pleadings and the facts of the case. 61. It is not possible for 501376 N.B. Ltd., to prove this subject Charter Challenge application to be

manifestly groundless or that there is clearly no cause of action in law or in equity. 62. Furthermore, 501376 N.B. Ltd.,, who is motioning for a stay must show not merely that the

Applicant to this application might not, or probably would not, succeed, but that he could not possibly succeed on the basis of the pleadings and the facts of the case. Again, it is not possible for 501376 N.B. Ltd., to provide these requirements.

63.

The implications of the Court condoning the blocking of a Charter issue being heard, by granting

501376 N.B. Ltd.,s desperate gamble on an unlikely to succeed technicality, would once again violate the Applicants Charter rights. The Canadian public would not stand idly by after such a miscarriage of justice. 64. Rule 27.09 provides for the striking out of pleadings, portions thereof or other documents which

are frivolous, vexatious, or otherwise an abuse of the court. A review of the authorities shows that the essential element of the tort of abuse of process is that the abuser must have used the legal process for a purpose other than that which it was designed to serve; in other words, for a collateral, extraneous, ulterior, improper, or illicit purpose. The gist of the tort is the misuse or perversion of the Courts process and there is no abuse when a litigant employs regular legal process to its proper conclusion, even with bad intentions. because there is clearly no liability when the defendant merely employs regular legal process to intentions. Please refer to Fleming on Torts 4th ed. (1971) pp. 547-8 its proper conclusion, albeit with bad

Part 2 Rule 23.01(2)(c) 65. Rule 23.01 states: (2) A defendant may, at any time before the action is set down for trial, apply to the court to have the action stayed or dismissed on the ground that ... (c) another action is pending in the same or another jurisdiction between the same parties and in respect of the same claim. Rules of Court, N.B. Regulation 82-73, Rule 23.01(2)(c) 66. In Gray v. R., Justice Robertson reviewed the grant a stay of execution and of proceedings as

follows: In my view, that case has been overtaken by the Supreme Courts decision in RJRMacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, decided after H.M. More to the point, in RJR-MacDonald the Supreme Court rejected the narrow interpretation of s. 65.1 being advanced before me. At page 329 the Supreme Court held: We are of the view that the Court is empowered, pursuant to both s. 65.1 and r. 27, not only to grant a stay of execution and of proceedings in the traditional sense, but also to make any order that preserves matters between the parties in a state that will prevent prejudice as far as possible pending resolution by the Court of the controversy, so as to enable the Court to render a meaningful and effective judgment. The Court must be able to intervene not only against the direct dictates of the judgment but also against its effects. This means that the Court must have jurisdiction to enjoin conduct on the part of a party in reliance on the judgment which, if carried out, would tend to negate or diminish the effect of the judgment of this Court. [My Emphasis]

Gray v. R., 2004 CanLII 47133 (NB CA), para. 7 67. No other action is pending in this or another jurisdiction between the same parties and in respect

of the same claim. 501376 N.B. Ltd., is requesting a stay based on various assertions including, and particularly because it is claimed that other actions are pending or have been decided with respect to the same facts and subject matter and between some of the same parties, in both Court File No. M/C/0642/09, Court File No. F/C/148/11, and this matter is, therefore, res judicata. This erroneous position is false, flawed and misleading to this Honourable Court. 68. A Charter challenge declaration pursuant to the Charter and associated stay regarding these

issues presented to this Honourable Court was not and has not been decided conclusively before any Court in Court File numbers M/C/0642/09, F/C/148/11, F/C/210/11 and/or FM/27/12. This is the first time the Applicant is filing a Charter challenge declaration pursuant to the Charter and associated stay regarding residential tenancy matters. 69. It may be of assistance to this Honourable Court for the Applicant to describe these four different

suits. Please note that the first three actions had different timelines in which to file according to the statute of limitations. Brief descriptions: M/C/0642/09 Plaintiff 501376 N.B. Ltd, a body corporate a tentative purchaser of a mortgagee

deed and Plaintiff Royal Bank of Canada as Mortgagee are co-Plaintiffs, are suing Defendant Andr Murray and anyone who may reside at 29 Marshall Street, to gain vacant possession of 29 Marshall Street, Fredericton, New Brunswick, alleging a necessity for vacant possession to achieve intended transfer of property.

F/C/148/11 Plaintiff Andr Murray, holder of a $80,000 Mechanics Lien on the residential duplex

29 and 31 Marshall Street property is suing for damages resulting from a without Notice Mortgage Sale /Power of Sale which occurred July 16, 2009. The named Defendants are 501376 N.B. Ltd, a body corporate, a tentative purchaser of a mortgagee deed alleged to have be a successful bidder at auction July 16, 2009, and Royal Bank of Canada the broker of subject mortgagee deed through the July 16, 2009, mortgagee deed auction. Even though Andr Murray had registered a Constructive Notice of his claim of an $80,000 Mechanics Lien against the property, Royal Bank of Canada failed to notify the Plaintiff, though lawfully obligated to do so. Please Note: Solicitor representing 501376 N.B. Ltd, a body corporate, was Hugh J. Cameron, who bid at auction, July 16, 2009. Solicitor Hugh J. Camerons sister, Suellen Ross, was the auctioneer of said auction, working through a company which is owned by solicitor Hugh J. Cameron and his father Hugh K. Cameron, called Cameron Auctioneers, of 857 Route 8 Hwy, Taymouth, N.B. at which time Solicitor Hugh J. Camerons sister, Suellen Ross, accepted a bid from her brother Hugh J. Cameron of one penny above the reserve.

F/C/210/11 Plaintiff Andr Murray a long-term residential tenant of 29 and 31 Marshall Street is

suing for damages resulting from an illegal and unlawful, without notice eviction from 29 and 31 Marshall Street, which occurred October 20, 2009. The named Defendants are including 501376 N.B. Ltd, a body corporate and solicitor representing that same numbered company, Hugh J. Cameron, one who specifically told/instructed the Fredericton Sheriff Services members directly, that even though the impugned Court Order the Sheriffs were holding did not specify civic address 31 Marshall street only 29 Marshall Street as had been requested- Hugh J. Cameron instructed the Sheriffs to throw out long-term residential tenant Andr Murray from the both sides of the residential duplex building regardless of the limited nature of the Court issued Order. The Sheriffs Department had no jurisdiction or authority to vacate a lawful residential tenant from 31 Marshall Street, Fredericton, New Brunswick. FM/27/12 Charter challenge declaration of the Residential Tenancy Act being unconstitutional

and declaration of the Property Act being unconstitutional, and a related stay of proceedings.

Limitation of Actions Act (S.N.B. 2009, c. L-8.5) Limitation of Actions Act Section 5(1) 70. Limitation of Actions Act, provides the General limitation periods, as follows: 5(1) Unless otherwise provided in this Act, no claim shall be brought after the earlier of (a) two years from the day on which the claim is discovered, and (b) fifteen years from the day on which the act or omission on which the claim is based occurred. Limitation of Actions Act, SNB 2009, c L-8.5, section 5(1)

71.

October 21, 2011 a Judicial decision on five Motions effecting the Applicants Residential

Tenancy Rights, was rendered. The Applicant appeared in person to hear the Oral decision. No sooner than that moment, could Andre Murray become aware of the subject Charter infringement. The Charter infringement was manifest by the impugned October 21, 2011 Judicial decision, to vacate Andre Murray from 29 and 31 Marshall Street, Fredericton N.B. et al,. Two years from that day, would calculate to October 21, 2013, as the two year deadline, in which to file an Action based in Charter infringement. The Applicant filed this subject Charter Application May 31, 2012, well within the two year general limitation period.

72.

October 21, 2011 was the first day which the claimant first could have known or ought

reasonably to have known that the injury, loss or damage had occurred, further, that the injury, loss or damage was caused by or contributed to by an act or omission, and that the act or omission was that of the Court, through application of impugned legislation of the Province of N.B. The impugned legislation failed to protect the Charter Rights of the Applicant, as is evidenced by the subject Judicial decision rendered against the Residential Tenant in favor of Mortgagee Royal Bank of Canada. Limitation of Actions Act Section 5(2) 73. The Limitation of Actions Act (S.N.B. 2009, c. L-8.5), allows exceptions to the General limitation

periods, as provided by section 5(2) which expresses the reasonable discovery rule: 5(2)A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a) that the injury, loss or damage had occurred, (b) that the injury, loss or damage was caused by or contributed to by an act or omission, and (c) that the act or omission was that of the defendant. Limitation of Actions Act, SNB 2009, c L-8.5, section 5(2)

74.

In Murphy v. Welsh; Stoddard v. Watson, Justice Major J. quoted from M.(K.) v. M.(H.),wherein the

Supreme Court reiterated the discoverability rule as follows: While these rationales benefit the potential defendant, the Court also recognised that there must be fairness to the plaintiff as well. Hence, the reasonable discovery rule which prevents the injustice of a claim's being statute barred before the plaintiff becomes aware of its existence: . A limitations scheme must attempt to balance the interests of both sides.Implicitly, diligence requires awareness of one's rights. Murphy v. Welsh; Stoddard v. Watson, 1993 CanLII 59 (SCC), [1993] 2 SCR 1069

75.

How could the Applicant have discovered that there was a Charter violation, before the subject

Charter violating Judicial decisions of October 21, 2011, which considered the two relative impugned Statutes in question. This subject decision was the first of its kind in New Brunswick, establishing this impugned Charter violating precedent. The October 21, 2011, Judicial decision which violates Charter protected rights, is intrinsic to the Charter violation. According to the reasonable discovery rule, the Respondent 501376 N.B. Ltd, may not claim that the Applicants Charter violation is statute barred, from a date before the Applicant, or anyone else becomes aware of its existence.

76.

Pursuant to section 5(2)(b) and (c) a claim is discovered on the day, on which the claimant first

knew or ought reasonably to have known that the injury, loss or damage was caused by or contributed to by an act or omission, and that the act or omission was that of the Respondents. The Applicant could not have known that his Charter Rights would be infringed until the violation occurred. The Charter violation occurred on October 21, 2011 when Justice Zol R. Dionne rendered a decision, in favor of Mortgagee Royal Bank of Canada, contrary to the Charter protected rights of Residential Tenants. The Court Ruling was the cause of the Charter violation. To illustrate the point, if the Court ruled in favor of Charter protected residential tenancy rights, on October 21, 2011, there would be no charter claim to be enforced by the Applicant. Without the impugned Court ruling of October 21, 2011, the Applicant would have no locus standi or put another way, no right of a party to appear and be heard before a court. Both the violation and the right of standing were created at the same time.

77.

In 604598 Saskatchewan Ltd. v. Saskatchewan, the Court of Appeal highlights the effect of the

trilogy on private interest standing, the application of locus standi and the effect of the Charter, which expands the courts power to ensure the constitutionality of laws: [18] Two issues relevant to this appeal remain: (i) the effect of the trilogy on private interest standing; and (ii) the extent to which the evidentiary base affects the decision to grant or withhold standing. Both these issues are raised by this appeal. Effect of Public Interest Standing on Standing as of Right [19] What remains of standing as of right after the trilogy? The trilogys effect on standing as of right is particularly relevant since the advent of the Charter which expands the courts power to ensure the constitutionality of laws. Whenever anyone seeks to set aside a law as unconstitutional, the factors mentioned in Borowski--- (i) serious issue; (ii) genuine interest; (iii) no other reasonable and effective means of testing the law---are relevant. This is so whether one claims exceptional prejudice in the Smith sense or asserts standing as a public interest litigant. Finlay illustrates this point. [108] The term locus standi, as it applies to legal proceedings, is succinctly defined in Black's Law Dictionary (5th ed.) to mean: A place of standing; standing in court. A right of appearance in a court of justice...on a given question. [109] Roughly speaking, this place of standing, enabling a person to appear before and be heard by a court in relation to a given question, may be acquired in one of two ways: As of right, in reliance upon one's own private interests in the question ("private interest standing"); or with

leave of the court, in reliance largely upon the public's interest in the question ("public interest standing"). And standing may exist, or be granted, in both civil and criminal proceedings, proceedings of one sort or another involving claims of various kinds, including a claim that a law is unconstitutional. [110] Standing in relation to claims that a law is unconstitutional rests upon a more extensive foundation of principle than usual, one that is more liberal because of some of the ideas underlying this branch of the law. This is explained with clarity by Professor Hogg in Chapter 56 of his text Constitutional Law of Canada (Loose-leaf Edition). He notes at p. 56-3: The question whether a person has 'standing' (or locus standi) to bring legal proceedings is a question about whether the person has a sufficient stake in the outcome to invoke the judicial process. The question of standing focuses on the position of the party seeking to sue, not on the issues that the lawsuit is intended to resolve. He goes on to note that standing in constitutional cases rests upon an idea unique to this field-the idea of "constitutionalism (or rule of law), which dictates that remedies ought to be available when governments fail to abide by the law of the constitution": This idea often suggests that a private litigant who, for public rather than private interest reasons, wishes to raise a constitutional question ought to be allowed to do so. This is probably the reason for the remarkable relaxation in the Canadian law of public interest standing.... Then, in turning briefly to private interest standing, he adds: Where a constitutional issue arises in the course of ordinary civil or criminal litigation, a question of standing is rarely controversial. The validity of a statute (or some other official instrument or act) must be determined in order to resolve the issue between the parties. It goes without saying that only the party who would be affected by the application of the statute has any right to raise the issue of its constitutionality. That person has standing to attack the validity of the statute. 604598 Saskatchewan Ltd. (c.o.b. Great Canadian Superbar) v. Saskatchewan (Liquor and Gaming Authority), 1998 CanLII 12308 (SK CA), para 18 -`19, and para 108-110.

78.

Roughly speaking, locus standi, (enabling a person to appear before and be heard by a court in

relation to a given question) may be acquired in one of two ways:

as of right, in reliance upon one's own private interests in the question (private interest standing); or

with leave of the court in reliance largely upon the public's interest in the question (public interest standing).

Private interest standing 79. Because of the facts surrounding the Applicants cause, and the applicable principles the

Applicant has a right of appearance in a court of justice, on the question of the constitutional violation of the Application of two New Brunswick Statutes in question. For private interest standing only the party who would be affected by the application of the impugned statute has any right to raise the issue of its constitutionality, that person has locus standi/standing to attack the validity of the statute. This standing was created for the Applicant, the moment when the Courts applied two Statutes against the Residential Tenant Applicant, creating a Charter infringement, through the Courts use of the impugned statutes.

80.

A person who has a direct, personal interest in the application of a law has what is referred to as

"private interest standing" that allows them to ask a court to rule on whether there is a violation of Charter rights. In some cases this is pretty straight forward, such as this case. The Court used provincial Statutes, to make a ruling against the Applicant, which created a Charter violation, hence private interest standing was established.

Public interest standing 81. The Supreme Court of Canada developed the concept of public interest standing in three

constitutional cases commonly called "the Standing trilogy": Thorson v. Canada (Attorney General), Nova Scotia Board of Censors v. McNeil, and Minister of Justice v. Borowski. The trilogy was summarized as follows in Canadian Council of Churches v. Canada (Minister of Employment and Immigration): It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?

Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 SCR 236,

82.

In response to this public interest test (i) the serious issue is a Charter violation, in which the

Applicant has a (ii) genuine interest, being directly effected by this Charter violation, and (iii) no other reasonable and effective means of testing the law is available.

83.

In Conclusion, regarding locus standi, the Applicant has both private interest standing and public

interest standing. Both created the moment the Court ruled against the Applicant, violating Charter protected rights, on October 21, 2012.

84.

Regarding, discovery of the cause of the Charter violation, the two year time calculation

regarding the Limitations of Actions Act, began counting on October 21, 2011.

85.

The Limitation of Actions Act, allows that if a Continuous act occurs, such as in this case, where

the Applicant has been denied the Charter protected Right of security of tenure in a residential home by the Court, and in fact vacated/evicted by way of Sheriff enforcement of a impugned Court Order, from his residence June 1, 2012. General limitation periods may be extended for the purposes of calculating the limitation periods in section 5, to be a separate act or omission on each day it continues Therefore the time calculation, may be counted as of two years from the day of the new act occurs in the Continuous act, which is the effect of being vacated from ones rightful residential tenancy home, contrary to Charter protections.

Limitation of Actions Act Section 6 86. It is further, noteworthy to consider, Limitation of Actions Act, section 6, allows that if a

Continuous act occurs, this allows a recalculation of time limitations, as follows: Continuous act or omission 6 If a claim is based on a continuous act or omission, the act or omission is deemed for the purposes of calculating the limitation periods in section 5 to be a separate act or omission on each day it continues. Limitation of Actions Act, SNB 2009, c L-8.5, section 6

87.

Each day the Applicant is denied Charter protected rights of security of tenure, and kept from

his lawful Residential home of 29 and 31 Marshall Street, the time calculation is extended again, and two years is again the new time limitation.

Limitation of Actions Act Conclusion

88.

October 19, 2009, the Court did Order Andre Murray to be vacated from 29, Marshall Street,

Fredericton New Brunswick only. This impugned Order was made, exparte, meaning Andre Murray was not at the hearing, was not notified of the hearing and as a consequence provided no evidence or argument for his position. That Order of October 19, 2009, did not consider the Residential Tenancy Act whatsoever, because the Royal Bank of Canada mislead the Court into believing that Andre Murray had no right of possession of 29 Marshall Street, Fredericton New Brunswick. In response, a Motion to rescind the October 19, 2009 Court Order was filed, with considerations for Residential Tenancies Act, SNB 1975, c R-10.2 and the Property Act, RSNB 1973, c P-19 being forwarded in argument for the first time. The Court, considered the impugned statutes, provided a decision against the Applicant on this rescinding or Orders Motion, October 21, 2011. An ex parte Order made October 19, 2009, without consideration of the relevant Statutes under review by this Charter Application, cannot bar the Applicant from having this Charter matter heard on the merits. The Court decisions which considered the impugned legislation, which failed to protect the Applicants Charter protected rights, were rendered October 21, 2011.

89.

If Plaintiff Andr Murray was only relying on Section 6 of the Limitations of Action Act, the time

limits prescribed by the Limitations of Action Act for the Charter infringement would be extended everyday the Applicant is not within his residential home, whether that be 29 Marshall Street or 31 Marshall Street Fredericton, N.B. The Charter violation continues day after day, resetting the two year time limit. This extension pursuant to section 6 of the Limitations of actions Act, continues until the Applicant regains possession of the subject Marshall Street Residential Property or until there is a Judicial decision regarding this Charter Application on the merits.

90.

October 21, 2013, is the two year deadline, in which to file an Action based on the subject

October 21, 2011 Charter infringing Court Order. The Applicant filed this subject Charter Application May 31, 2012, well within the two year general limitation period. Even is the Court was somehow convinced of a different date, such as October 19, 2009 (Note: date of first exparte order to vacate from 29 Marshall Street), Plaintiff Andr Murray has fulfilled the requirements of Section 5(2), and Section 6, of the Limitation of Actions Act, SNB 2009, c L-8.5, therefore the general limitation period of the act is no bar to the Applicants claims being heard on their merits: The Respondents Claim that This

Application is Statute Barred, pursuant to the Limitation of Actions Act, SNB 2009, c L-8.5 in frivolous, vexatious and without merit. Res Judicata (MC0642/09 and FC/148/11) Res Judicata 91. The doctrine of res judicata may result in the dismissal of a grievance when a party seeks to relitigate matters about which the parties have already had a full and fair opportunity to litigate and which were in fact litigated. For a matter to be considered res judicata there must be a judgment on the merits, in a former suit. This is a Charter application where there has been no such Charter decision: 1) judgment; 2) on the merits; and 3) in a former suit. 92. Res judicata was derived from Roman law, being founded on the maxims nernodebetbisvewari

pro cadent causa (no one ought to be twice sued for the same cause of action), and interest reipubiieceut sit finis litium (it is the interest of the state that there should be an end of litigation). 93. The Applicant will again refer this Honourable Court to The Florida Bar Journal as follows: Several conditions must be met before a party can invoke res judicata. The Florida Supreme Court has articulated the doctrine as follows: A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action. Thus, res judicata bars not only those claims that were raised, but also any claims that could have been raised in the prior action. Decisional law has emphasized each element of this definition, requiring, as an initial matter, 1) a judgment, 2) on the merits, 3) in a former suit. Beyond these preliminary requirements, application of res judicata requires that certain similarities exist between the previous action and the new one. These similarities, often called the four identities, are 1. Identity in the thing sued for. 2. Identity of the cause of action . . . 3. [Identity] of persons and of parties to the action. 4. Identity of the quality in the persons for or against whom the claim is made . . . . If these conditions are present, any point raised and decided in the former suit cannot again be drawn in question in any future action between the same parties. As a consequence, any future suit on the same claim, or any claim that could have been litigated in that action, is barred. Res judicata enforces finality by preventing the parties to a judgment from returning to court on the same cause of action or on any matter that could have been raised between the same parties. Once a judgment becomes final, and assuming it is not set aside, that judgment is deemed conclusive as to those matters that could have been litigated, thereby preventing either party from effectively undoing the judgment through relitigation. Brandon R. Christian, If at First You Dont Succeed: Understanding Judicial Doctrines of Finality, 85 Flor. Bar J. 32, (2011)

94.

The first part of decisional law is a judgment, there is no final judgement of the matters

between parties, regarding decisions from Court File M/C/0642/09, in which Leave to Appeal was sought, and in Court of Appeal File 142-11-CA, Leave to Appeal was denied, if there was a final judgement, leave would have been granted. Parties are entitled to have final decisions reviewed on their merits by the Court of Appeal. 95. In Murray v. Royal Bank of Canada, which was between the Applicant and the Royal Bank, a

Leave to Appeal Motion was heard by The Honourable Justice Richard Bell. The Court concluded definitively that it was of the opinion the five motions before the Honourable Justice Zoel R. Dionne were not final, and did not decide the rights of the parties whatsoever, stating: [4] Applying that test to the motions considered by the motion judge, I am satisfied all were interlocutory except the decision on costs, which, according to Rule 62.03(b) is one that requires leave in any event. The motions involved determinations of the following issues: (1) whether costs should be awarded on a motion by the numbered company to discontinue its claim; (2) whether portions of the intended appellants affidavits making personal attacks on the lawyer for one of the parties should be struck; (3) whether a prior interlocutory order made on October 20, 2009, should be rescinded based upon invalid service; (4) whether a leasehold interest created in 2005 takes priority over a mortgage interest granted in 2000; and (5) whether a Notice of Termination of Tenancy and Lease issued in May, 2010, terminating the lease effective September 1, 2010, was validly issued and served on Mr. Murray. [5] The first three issues are matters for which leave is clearly required, so no further discussion is necessary. The last two issues, those of priority of the mortgage interest over the leasehold interest and whether a Notice of Termination of Tenancy and Lease was validly issued and served are more problematic. From Mr. Murrays perspective, it could be argued that the answers to those questions finally dispose of the substance of the litigation in relation to those two issues and leave to appeal is not required. With respect, I hold a different view [8] For all of the above reasons, I conclude the motion judges decision regarding the five motions did not finally dispose of the litigation or any part of the lis pleaded between the parties. The issues of unjust enrichment, damages and whether a sale was lost remain to be adjudicated upon. Murray v. Royal Bank of Canada, 2011 CanLII 92708 (NB CA), paras. 4, 5 and 8 96. The second part of decisional law is on the merits. The merits of the law suit MC/0642/09

remain to be seen, only preliminary matters have been dealt with thus far, as there has been no trial yet. File number FC/148/11 is in the preliminary stages, as there has been no trial yet, and preliminary documents have yet to exchanged. File FC/210/11 is also in the preliminary stages, as there has been no trial yet, and preliminary documents have yet to exchanged. File FM/27/12 is an application pursuant to the Charter and no decision has yet been rendered. Only within this file number, FM/27/12, is there a request for Charter relief.

97.

The third part of decisional law is in a former suit. As was previously stated, none of the

above-noted court file numbers have yet been conclusively litigated. 98. Beyond these preliminary requirements, application of res judicata requires that certain

similarities exist between the previous action and the new one. These similarities, often called the four identities are: 1) identity in the thing sued for; 2) identity of the cause of action; 3) identity of persons and of parties to the action; and 4) identity of the quality in the persons for or against whom the claim is made. 99. 1) Identity in the thing sued for .Merriam-Webster provides the definition of identity as the

distinguishing character or personality of an individual. In this case the distinguishing character of the thing sued for is: A. Court File M/C/0642/09 Royal Bank of Canada and 501376 N.B. Ltd. as Plaintiffs seeking vacant possession of 29 Marshall Street, damages for unjust enrichment and conversion of said property, all from Defendant Andr Murray; B. Court File F/C/148/11 Andr Murray as Plaintiff seeking damages from the July 16, 2009, without notice mortgagee deed sale, attempting to cause Andre Murray a loss of $80,000 Mechanics Lien and furthermore causing loss of $80,000 in equity in the tangible assets which found in 29 and 31 Marshall Street, Fredericton, N.B., from the Royal Bank of Canada and 501376 N.B. Ltd.; C. Court File F/C/210/11 Andr Murray as Plaintiff is seeking damages from the October 23, 2009, illegal and unlawful eviction from 29 and 31 Marshall Street, Fredericton, N.B., from various named complicit Defendants, who each contributed to the damages; and D. Court File FM/27/12 Andr Murray as Applicant seeking Charter challenge declaration of unconstitutional Residential Tenancy Act, supra, declaration of unconstitutional Property Act, supra, stay of proceedings if so ordered; Royal Bank of Canada and 501376 N.B. Ltd. are named as Respondents, only because I Andre Murray could not at that time determine if they qualified, according to Rules of Court, as a prerequisite to the hearing of this application. 100. 2) Identity of the cause of action . . .The fact or combination of facts that gives a person the

right to seek judicial redress or relief against another. Also, the legal theory forming the basis of a lawsuit. Merriam-Webster.com provides the following definition of cause of action the grounds (as violation of a right) that entitle a plaintiff to bring a suit. The four Court File numbers and their respective causes of action are summed up as follows: A. M/C/0642/09 Royal Bank of Canada and 501376 N.B. Ltd. wanted vacant possession of 29 Marshall Street, after alleged sale of a mortgagee deed which occurred without notice to residents. Royal Bank further erroneously claimed the Defendant is liable for damages for the tort of unjust enrichment

and conversion of property, because Andre Murray, as a Residential Tenant at that location did not leave the Marshall Street Property when allegedly requested; B. F/C/148/11 Andr Murray seeking damages for unlawful without notice foreclosure procedures involving a mortgagee deed sale, which caused a loss of an $80,000 Mechanics Lien Claim involving tangible assets of $80,000 equity in the residential duplex property known as civic address 29 and 31 Marshall Street, Fredericton, New Brunswick; C. F/C/210/11 Andr Murray seeking Damages for illegal unlawful eviction which occurred without Notice and the criminal code actions of agents working for the Royal Bank of Canada who did without a court order Break and Enter into 31 Marshall Street, Fredericton, N.B., October 23, 2009; D. FM/27/12 Andr Murray seeking declaration of Charter breach, resulting from impugned application of the Residential Tenancies Act, supra, and Property Act, supra, through a impugned October 21, 2011 decision of the Court of Queens Bench, also a stay of proceedings until subject matter is resolved. 101. 3) Identity of persons and of parties to the action. Again I will refer to Merriam-Websters

definition of identity as the distinguishing character or personality of an individual. In this case the distinguishing character of persons and of parties to the action are: M/C/0642/09 Royal Bank of Canada, Plaintiff Seller of a mortgagee deed through a without notice mortgage 501376 N.B. Ltd., Plaintiff Tentative purchaser of mortgagee deed from without notice mortgage Andr Murray - Defendant residential long term leasehold tenant of 29 and of 31 Marshall Street, sale, seeking an order to vacate Defendant residential tenant Andr Murray from 29 Marshall Street. sale, seeking an order to vacate Defendant residential tenant Andr Murray from 29 Marshall Street. duplex property, Fredericton, New Brunswick. F/C/148/11 Royal Bank of Canada, Defendant, failed to provide proper notice of a mortgagee deed sale, by a power of sale, in which it was the seller who contributed to damages to Plaintiff Andr Murrays loss of a Mechanics Lien and equity in property at 29 and 31 Marshall Street. 501376 N.B. Ltd., a body corporate, Defendant, failed to provide proper notice of a mortgagee deed, power of sale, in which it was the bidder who contributed to damages to Plaintiff Andr Murrays loss of Mechanics Lien and equity in property at 29 and 31 Marshall Street. Andr Murray, Plaintiff, Mechanics Lien claimant on duplex property at 29 and 31 Marshall Street, suing for damages from actions of Defendants, who contributed to Plaintiff Andr Murrays loss of Mechanics Lien and equity in said property. F/C/210/11

Royal Bank of Canada is one defendant of many who contributed to damages to the Plaintiff Andr

Murray, resulting from a without notice Ex Partee hearing whereby a Eviction Order was issued than executed at civic address 29 and 31 Marshall Street, despite an order to vacate for 31 Marshall Street did not exist. 501376 N.B. Ltd. is one defendant of many who contributed to damages to the Plaintiff Andr Murray, resulting from a without notice Ex Partee hearing whereby Eviction Order issued and executed to both 29 and 31 Marshall Street, to which an order to vacate did not exist for 31 Marshall Street at that time. Andr Murray is a Plaintiff residential tenant at 29 and 31 Marshall Street, suing for damages from actions of many defendants who contributed to damages resulting from a without notice Ex Partee hearing then Eviction Order issued and executed without notice to said property, to which an order to vacate did not exist for 31 Marshall Street at that time. FM/27/12 Royal Bank of Canada, as Respondent to the Charter challenge, there is no need for Royal Bank of Canada to Court file anything as a Respondent to the Charter challenge, but was simply notified as procedure may have required. 501376 N.B. Ltd., a body corporate, Respondent to the Charter challenge, there is no need for 501376 N.B. Ltd. to Court file anything as a Respondent to the Charter challenge, but was notified as procedure may have required. Andr Murray, Applicant seeking Charter challenge declaration of unconstitutional/non compliant Residential Tenancy Act, supra, declaration of unconstitutional Property Act, supra, and a stay of proceedings. The onus is entirely upon the Applicant to prove the case. 102. 4) Identity of the quality in the persons for or against whom the claim is made. Quality is

defined by Black's as: quality. 1. The particular character or properties of a person, thing, or act, often essential for a particular result. Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,8th ed., quality. (Thomson/West, 2004) at p. 3915 M/C/0642/09 Royal Bank of Canada, Plaintiff, and allegedly a broker of a mortgagee deed at a without notice foreclosure mortgagee deed, seeking an order to vacate Defendant residential leasehold tenant Andr Murray from 29 Marshall Street, additionally an order for alleged damages for conversion of said property. 501376 N.B. Ltd., Plaintiff, tentative purchaser of mortgagee deed at a without notice mortgagee deed auction sale, seeking an order to vacate Defendant residential leasehold tenant Andr Murray from

his residency at 29 Marshall Street, additionally an order for alleged damages for conversion of said property. Andr Murray, Defendant residential leasehold tenant at the duplex property of 29 and 31 Marshall Street, Fredericton, N.B. F/C/148/11 Royal Bank of Canada, Defendant who contributed to damages to the Plaintiff Andr Murray, 501376 N.B. Ltd., Defendant who contributed to damages to the Plaintiff Andr Murray, resulting Andr Murray, Plaintiff who alleges damages from conduct of the two named Defendants to the resulting from a without notice mortgagee deed foreclosure sale. from a without notice mortgagee deed foreclosure sale. subject action, resulting from a without notice mortgagee deed foreclosure sale, and loss of an $80,000 Mechanics Lien and equity in the duplex property of 29 and 31 Marshall Street, Fredericton, N.B. F/C/210/11 Royal Bank of Canada, is one Defendant of many who contributed to damages to the Plaintiff Andr Murray, resulting from a without notice Ex Partee hearing and subsequent Eviction Order, executed to both 29 and 31 Marshall Street, despite an order to vacate did not exist for 31 Marshall Street at that time. 501376 N.B. Ltd., is one Defendant of many who contributed to damages to the Plaintiff Andr Murray, resulting from a without notice Ex Partee Eviction Order, executed to both 29 and 31 Marshall Street, despite an order to vacate did not exist for 31 Marshall Street at that time. Andr Murray, Plaintiff who claims damages from conduct of the various named Defendants to the subject action resulting from a without notice Ex Partee Eviction Order, executed to both 29 and 31 Marshall Street, despite an order to vacate did not exist for 31 Marshall Street at that time. FM/27/12 Royal Bank of Canada, Respondent numbered company included in application because the Applicant being self represented could not clearly determine if Royal Bank of Canada may be affected by the decision 501376 N.B. Ltd., Respondent numbered company included in application because the Applicant being self represented could not clearly determine if Royal Bank of Canada would be affected by the decision Andr Murray, Applicant who asserts that Charter rights have been violated by use of inadequate wording of the Residential Tenancy Act, supra, and the Property Act, supra, as these statutes are not Charter compliant.

103.

The herein above subject actions M/C/0642/09, F/C/148/11, F/C/210/11 and

FM/27/12 have (for this Court) been abundantly illustrated as substantially different, as can be reasonably and most definitely concluded from the above analysis; therefore, res judicata does not apply in this matter as claimed by . Paragraph 4 requested Order Rule 76.1 and Paragraph 5 Interim Prohibition Order Rule 76.1 104. Rules of Court Rule 76.1 title: PARTICULAR PROCEEDINGS RULE 76.1 VEXATIOUS PROCEEDINGS 105. Firstly, 501376 N.B. Ltd., is in violation of Rules of Court Rule 37.03

regarding Content of Notice of Motion. The moving party on a motion must specify exactly which statutory provision or rule they rely on within their motion. 501376 N.B. Ltd., only cited Rule 76.1, nothing more. This refers to the content of the entire Rule of Court Rule 76.1 from 76.1.01 to 76.1.04 which is three pages of Rules, some dealing with judges of the Court of Appeal. A more thorough argument on Rule 37.03 is provided below in the section titled Paragraph 8 Requested Order. If this Honourable Court however finds it appropriate to overlook this glaring irregularity, then the following argument should be considered. 106. The Applicant firmly denies the accusations of having persistently and without As will be revealed/explored below, absolutely no

reasonable grounds commenced vexatious and/or conducted vexatious proceedings in the Court of Queens Bench. redundancy or re-litigation exists between the various actions, they may have similar or overlapping factual foundation, but they all have unique motivating forces and relief which is being sought, therefore, requiring differing procedures and/or actions so that the particular remedy required for each action could/would be granted. 107. No decision has yet been reported on CanLII where a litigant has argued 35

successfully using Rule 76.1 of the Rules of Court.

108.

The Applicant has not to date, in a Court of competent jurisdiction, previously

made a Charter challenge or requested a declaration of constitutional invalidity of provincial statutes in any case regarding New Brunswick residential tenancy matters. 109. 501376 N.B. Ltd., fails to meet the requirement necessary for this Honourable

Court to find cause to strike this Application, pursuant to the plain and obvious test.

110.

501376 N.B. Ltd., fails to meet the four threshold element requirements

necessary for this Honourable Court to find an abuse of process pursuant to the abuse of process test. 111. 501376 N.B. Ltd., fails to meet the seven threshold element requirements

necessary for this Honourable Court to find that this is a vexatious action pursuant to the vexatious action test. 112. The three above-mentioned tests are as follows:

a. plain and obvious test, b. abuse of process test c. vexatious action test

113.

Further, to the above paragraph the question as to whether the matter is res

judicata was already addressed previously in this submission.

The Law of the Case 114. The Applicant in responding to the subject Order being sought by 501376 N.B. Ltd.,, that is a certain matter of relief which is: Order prohibiting the Applicant, Andre Murray, from commencing and/or continuing this, or any, proceeding or, in the further alternative, any proceeding against 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan, in the Court of Queens Bench, except with leave of a Judge of the 36

Court of Queens Bench pursuant to Rule 76.1 or if this matter is to be adjourned, far any reason, an Interim Order , prohibiting the Applicant, Andre Murray, from commencing and/or continuing this, or any, proceeding or, in the further alternative, any proceeding against 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan, in the Court of Queens Bench, except with leave of a Judge of the Court of Queens Bench pursuant to Rule 76.1;, the Applicant will refer this Honourable Court to The Florida Bar Journal and specifically the law of the case as was defined and explored as follows: The Law of the Case The first judicial doctrine of finality to consider is that of the law of the case. The outcome of a direct appeal may be that the case is remanded to the trial court in whole or in part. In the litigation that follows within the same case, the law of the case will require that those questions of law actually decided on appeal must govern the case in the same [appellate] court and the trial court, through all subsequent stages of the proceedings.14 Under this doctrine, the trial court, on remand, will be bound to follow prior rulings of the appellate court as long as the facts on which such decision [is] based continue to be the facts of the case.15 In fact, the appellate court, too, upon a subsequent appeal, will be bound by its prior rulings on those issues actually raised and on which the facts have remained the same, except that the appellate court need not adhere to a prior, incorrect ruling, where to do so would constitute a manifest injustice.16 Several features of this doctrine require emphasis. First, unlike res judicata, the doctrine is limited to litigation within the same case. It arises when an appellate court reaches the merits of some aspect of the case but remands the cause to the trial court for further consideration; in these circumstances, questions settled by the appellate court become the law of the case both on remand and in any subsequent appeal.17 Second, the doctrine is limited to those issues actually decided on appeal. Notably, a per curiam affirmance can establish the law of the case as to those issues raised and decided in the prior appeal because the appellate court is understood to have examined and considered those issues presented.18 The Florida Supreme Court, however, has appropriately limited this principle. As the court explained in Florida Department of Transportation v. Juliano, 801 So. 2d 101, 108 (Fla. 2001), when a prior appellate court gives no explanation for its decision, a subsequent appellate court is not bound by the law of the case unless a determination concerning the propriety of the trial courts order is necessarily inconsistent with every possible correct basis for the earlier rulings of the appellate court. Thus, taking Juliano as an example, a brief opinion affirming the denial of summary judgment may do little to establish the law of the case because there might have been multiple issues that precluded the entry of summary judgment.19 37

Furthermore, the Florida Supreme Court has confirmed that actually decided means those issues actually presented and considered on a former appeal.20 This can include those issues that were implicitly addressed or necessarily considered in the appellate courts prior decision.21 Whether a panel of judges, in deciding an appeal, implicitly or necessarily considered certain issues may become a matter of some debate on remand in the trial court and in any subsequent appeal.22 For example, should a party raise an unpreserved evidentiary issue on appeal, the appellate court might reverse and remand for a new trial on other grounds. In these circumstances, it would be difficult to infer anything from the appellate courts silence regarding the evidentiary issue, as the court may have decided either that the issue did not present a fundamental error or that it was unnecessary to address the unpreserved issue in light of the reversal. Another feature of the law of the case doctrine is that it is more flexible in its application than res judicata and collateral estoppel. A trial court is only bound to adhere to the law of the case if the facts on which the appellate courts decision was based continue to be the facts of the case.23 The appellate court will likewise be bound by its prior decision only to the extent that the facts have remained the same.24 Finally, the doctrine includes a manifest injustice exception. As the Supreme Court explained in Beverly Beach Properties, Inc. v. Nelson, 68 So. 2d 604, 608 (Fla. 1953), We may change the law of the case at any time before we lose jurisdiction of a cause and will never hesitate to do so if we become convinced, as we are in this instance, that our original pronouncement of the law was erroneous and such ruling resulted in manifest injustice. Brandon R. Christian, If at First You Dont Succeed: Understanding Judicial Doctrines of Finality, 85 Flor. Bar J. 32, (2011) 115. This honourable court, as provided herein above, must consider the first

judicial doctrine of finality, namely, that of the law of the case. Furthermore questions of law actually decided on appeal must govern the case in the same [appellate] court and the trial court, through all subsequent stages of the proceedings. Under this doctrine, the trial court, on remand, will be bound to follow prior rulings of the appellate court as long as the facts on which such decision [is] based continue to be the facts of the case. In fact, the appellate court, also, upon a subsequent appeal, will be bound by its prior rulings on those issues actually raised and on which the facts have remained the same, except that the appellate court need not adhere to a prior incorrect ruling where to do so would constitute a manifest injustice. The law of the case is created by judicial decisions.

38

If at First You Dont Succeed: Understanding Judicial Doctrines of Finality, supra 116. Furthermore, in Maynard v. Maynard, Cartwright J. cited the case of Hoystead

v. Commissioner of Taxation, [1926] A.C. 155 170: Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. In my opinion the law is correctly stated in Halsbury's Laws of England (2nd Edition) Volume 13 at page 410, where it is said that the principle of estoppel applies, "whether the point involved in the earlier decision, and as to which the parties are estopped is one of fact, or one of law, or one of mixed law and fact." Maynard v. Maynard, [1951] S.C.R. 346 (CanLII), pg. 359 117. Since the Applicant did not previously make a Charter challenge or request a

declaration of constitutional invalidity of provincial statutes in any case to date regarding the Residential Tenancy Act, S.N.B. 1975, c. R-10.2, or the Property Act, R.S.N.B. 1973, c. P-19, the principle of estoppel does not apply in these circumstances. There is no law of the case on the point of Charter challenge, or declaration of invalidity of provincial statutes. Therefore, this mater must be heard on the merits before the principle of estoppel applies. 118. There is law of the case which is relevant to this Charter application, which

is the Courts recognition of two residential tenancy leases. When added consecutively, those two undisputed therefore accepted and recognized subject leases cause the Applicant to enjoy the status of a long-term tenant. Long-term tenancy status, which is five consecutive years or more under the Residential Tenancy Act, supra, provides

39

special security of tenure; accordingly there has never been an appropriate Notice of Termination of Lease, to address a long-term tenancy lease. 119. If this Honourable Court were to make an: Order prohibiting the Applicant,

Andre Murray, from commencing and/or continuing this, or any, proceeding or, in the further alternative, any proceeding against 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan, in the Court of Queens Bench, except with leave of a Judge of the Court of Queens Bench pursuant to Rule 76.1 or if this matter is to be adjourned, far any reason, an Interim Order , prohibiting the Applicant, Andre Murray, from commencing and/or continuing this, or any, proceeding or, in the further alternative, any proceeding against 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan, in the Court of Queens Bench, except with leave of a Judge of the Court of Queens Bench pursuant to Rule 76.1;, this would then constitute the law of the case, if allowed to remain unchallenged. However in this particular subject matter the potential law of the case will be overbreadth and/or a violation of the Charter and therefore be constitutionally invalid, because of this fact the particulars regarding this matter law of the case would then be subject to review and challenge. 120. Black's Law Dictionary defines overbreadth doctrine as follows: overbreadth doctrine - Constitutional law. The doctrine holding that if a statute is so broadly written that it deters free expression, then it can be struck down on its face because of its chilling effect even if it also prohibits acts that may legitimately be forbidden. Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,8th ed., overbreadth doctrine. (Thomson/West, 2004) at p. 3498 121. The prohibition order which is proposed by 501376 N.B. Ltd., is overbreath

and not appropriate in such circumstances. Courts should not be precariously issuing orders based on erroneous substance the law of the case, furthermore, that which are blatantly in violation of the Charter. Laws which are in violation of the Charter will be struck down. Knowing this beforehand, the Applicant is herein informing the Court that it would be a miscarriage of justice to make such an expansive order, that which would violate the principles of fundamental justice. 501376 N.B. Ltd., is asking for an 40

order, which would not only affect this subject application (FM/27/12), but every future matter which comes before the Court of Queens Bench Trial Division and Small Claims Court, first of all in which the Applicant and 501376 N.B. Ltd., are parties. That is already over expansive, but 501376 N.B. Ltd., wants to go even further and ask that this order apply to every legal matter with which the Applicant is involved with Mecca Corporation or Richard McGuigan (please Note Mecca Corporation or Richard McGuigan, have been named by the Applicant in one Action only) also, not just those with 501376 N.B. Ltd., and its dealing specifically with residential tenancy matters. 122. A Charter issue should be resolved between the violated party and the state.

For this reason this honourable court must not allow 501376 N.B. Ltd.,to derail the Applicants efforts to have a quality public issue, Charter issue resolved. The result of obstruction as requested by 501376 N.B. Ltd., would be a blatant disregard for justice, or the balance of convenience instead would transverse justice in favor of granting a self-serving draconian order as requested by solicitor Hugh J. Cameron on behalf of 501376 N.B. Ltd., et al would constitutes an abuse of process. 123. In R. v. Pilarinos, The Honourable Madam Justice E.A. Bennett reiterated the

following regarding the legal concept of overbreadth, including the insight that the doctrine of overbreadth has autonomous value under the Charter and that a law not be overbroad, is now accepted as a principle of fundamental justice as follows: [24] in R. v. Heywood1994 CanLII 34 (SCC), (1994), 94 C.C.C. (3d) 481 (S.C.C.), the majority of the Supreme Court of Canada found that an overbroad law would violate the principles of fundamental justice. This implies that the doctrine of overbreadth has autonomous value under the Charter. Indeed, the majority found that the section under discussion (s. 179(1)(b)), did violate the principles of fundamental justice on the grounds that it was overly broad. [25] InR. v. Heywood, supra, the Court expressed the doctrine of overbreadth in this way, at 516: Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: Are those means necessary to achieve the state objective? If the state, in 41

pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individuals rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate. See also Winko v. British Columbia (Forensic Psychiatric Institute, supra, at 168. [26] In R. v. Budreo2000 CanLII 5628 (ON CA), (2000), 142 C.C.C. (3d) 225, the Ontario Court of Appeal recently considered the doctrine of overbreadth when considering the constitutionality of s. 810.1 of the Code. The Court, in finding that the legislation was not overly broad, said this at 239: That a law not be overbroad is now accepted as a principle of fundamental justice. Overbreadth looks at the means a legislature has chosen to achieve a legitimate objective. The means chosen must be sufficiently tailored or narrowly targeted to meet their objective. If the means chosen are too broad or too wide, if the law goes further than necessary to accomplish its purpose, the law becomes arbitrary or disproportionate. A persons rights will be limited without good reason. The principles of fundamental justice will be violated. [27] The approach to an overbreadth analysis was set out in R. v. Biller[1999] S.J. No. 202 at para. 18 (Sask.C.A.) and recently affirmed in R. v. Spindloe, supra, at p. 47: 1. the first step in the overbreadth analysis requires a court to exhaust its interpretive function to determine the meaning of the provisions; 2. as part of the courts interpretive function, reasonable hypotheticals may be used to determine the meaning or extent of the application of the law; 3. when a court is satisfied as to the meaning to be attributed to the impugned law, the court must engage in a proportionality analysis this involves a comparison of the ambit of the legislation to the legislations purpose; and 4. there are certain spheres of government activity, like the protection of the environment, which are very broad and which do not lend themselves to precise codification, and with such legislation, the breadth of a provision may very well match the breadth of the legislative goal. [28] InR. v. Sharpe2001 SCC 2 (CanLII), (2000), 150 C.C.C. (3d) 321 at 345 (S.C.C.), McLachlin C.J.C. said the following regarding the importance of interpreting legislation in order to determine whether the legislation is overly broad: 42

While the Crown concedes that s. 163.1(4) limits freedom of expression, this does not eliminate the need to consider the nature and scope of the infringement in determining whether or not it is justified. Until we know what the law catches, we cannot say whether it catches too much. This Court has consistently approached claims of overbreadth on this basis. It is not enough to accept the allegations of the parties as to what the law prohibits. The law must be construed, and interpretations that may minimize the alleged overbreadth must be explored: see Keegstra, supra; Butler, supra; and Mills, supra. So we must begin by asking what s. 163.1(4) truly catches as distinguished from some of the broader interpretations alleged by the respondent and some of the intervenors in support. The interpretation of the section is a necessary pre-condition to the determination of constitutionality, although it is understood, of course, that courts in future cases may refine the analysis in light of the facts and considerations that emerge with experience. R. v. Pilarinos, 2002 BCSC 452 (CanLII), pp. 24 to 28 124. In considering whether a legislative provision is overbroad, as found in this

subject matter, the requested prohibition order, which is to be made by an appointed Judge, given power by statute, every learned trial judge must take judicial notice and ask the question: Are these the means necessary to achieve the legislated objective? If the Court, in pursuing a legitimate objective (granting a draconian oppressive Court order at the behest of 501376 N.B. Ltd.,) uses means which are broader than is necessary to accomplish that objective (as in shield 501376 N.B. Ltd.,from litigation procedure. That which anyone else is subject to, and anyone else is rightfully responsible for), the principles of fundamental justice will be violated because the Applicants rights will have been limited for no reason other than 501376 N.B. Ltd.,s convenience and self-serving agenda. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate. The subject 501376 N.B. Ltd.,s Order being requested is not for the benefit of the state or the public, but only for the benefit of a private party, 501376 N.B. Ltd.,, this is most definitely arbitrary or disproportionate. To issue such a Order would consequentially include everybody else in New Brunswick, as if the RBC spoke for them too, this is incredulous. Such an order is offensive.

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125.

The subject requested prohibition order is a violation of the Applicants The means chosen are not sufficiently tailored or narrowly

fundamental rights.

targeted to meet their claimed objective. If the means chosen are too broad or too wide, if the law of the case goes further than necessary to accomplish its purpose, the law of the case becomes arbitrary or disproportionate. (Applicants rights) will be limited without good reason. fundamental justice are violated in these circumstances. 126. 58, is: 1. the first step in the overbreadth analysis requires a court to exhaust its interpretive function to determine the meaning of the provisions; 2. as part of the courts interpretive function, reasonable hypotheticals may be used to determine the meaning or extent of the application of the law; 3. when a court is satisfied as to the meaning to be attributed to the impugned law, the court must engage in a proportionality analysis this involves a comparison of the ambit of the legislation to the legislations purpose; and 4. there are certain spheres of government activity, like the protection of the environment, which are very broad and which do not lend themselves to precise codification, and with such legislation, the breadth of a provision may very well match the breadth of the legislative goal. R. v. Biller,1999 CanLII 12356 (SK CA), para. 18 127. The first step in the overbreadth analysis requires a court to exhaust its The analysis set out in R. v. Biller and affirmed in R. v. Spindloe, 2001 SKCA A persons rights The principles of

interpretive function to determine the meaning of the impugned provisions, in this matter before the Court, it would be law of the case in the form of the Order the Royal Bank is seeking. The Order being requested is: an Order prohibiting the Applicant, Andre Murray, from commencing and/or continuing this, or any, proceeding or, in the further alternative, any proceeding against 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan, in the Court of Queens Bench, except with leave of a Judge of the Court of Queens Bench pursuant to Rule 76.1 or if this 44

matter is to be adjourned, far any reason, an Interim Order , prohibiting the Applicant, Andre Murray, from commencing and/or continuing this, or any, proceeding or, in the further alternative, any proceeding against 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan, in the Court of Queens Bench, except with leave of a Judge of the Court of Queens Bench pursuant to Rule 76.1; This order 501376 N.B. Ltd., is seeking would encompass not only 501376 N.B. Ltd.,, but also Mecca Corporation or Richard McGuigan,; furthermore this order would extend beyond the law of the case to every proceeding which may begin in the Court of Queens Bench from now on. Furthermore, 501376 N.B. Ltd., is a respondent in this application, only because jurisprudence requires that any party who may be affected by this application be included as a respondent, pursuant to Rules of Court Rule 38.05(3). 128. The second step in the overbreadth analysis is a part of the Courts interpretive

function, therefore, reasonable hypothetical may be used to determine the meaning or extent of the application of the law, in this matter law of the case and beyond. Hypothetically speaking, if the Court grants such a order, the scope of which will be publically perceived as draconian, consequentially, the Applicant would be harmed and or burdened by having to first seek timely and costly Court preapproval before being granted access to remedy of the Court of Queens Bench, regarding any matters concerning 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan. The effect would be that every time a motion, application or action which may affect 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan within the Court of Queens Bench, the Applicant would have to tie up judicial resources, spend the extra time and money in preparation to file and serve a preliminary motion, furthermore, which would have to be heard and decided upon by a Justice of the Court of Queens Bench before anything else was filed. This would mean that a Court filed Motion would have to be filed months in advance, so that a decision could be rendered before proceeding with standard litigation procedures. Such a subject order as requested by 501376 N.B. Ltd., if granted, would at the very least double the time and costs to the Applicant, to, therefore, simply be able to have access to the Courts. It goes without saying, that every other party, including 501376 N.B. Ltd., Mecca Corporation or Richard 45

McGuigan, would, as well, suffer the ramifications consequentially, by have their costs doubled, in having to respond to these superfluous motions. 129. 501376 N.B. Ltd., should not be successful on this motion, all parties could

then proceed with necessary litigation in the same as every other party in New Brunswick, according to the Rules of Court. 130. The third step in the overbreadth analysis is when a court is satisfied as to the

meaning to be attributed to the impugned law, or in this instance law of the case, the court must engage in a proportionality analysis, involving a comparison of the scope or extent of the legislation/law of the case to the legislation/law of the cases purpose; 131. The extent and or consequences of granting the subject order is that it could

spill out into every case, which has the Applicant as a party, not just cases involving 501376 N.B. Ltd.,. Furthermore, the impugned requested order, would apply to every case between the Royal Bank and the Applicant, no matter what the root cause, issue or violation in tort or otherwise. The ambit of the requested order (law of the case), is draconian, which is an adjective meaning great severity, that derives from Draco, an Athenian legislator under whom small offences had heavy punishments. 132. The purpose of the 501376 N.B. Ltd.,s motion: The Order being requested is:

Order prohibiting the Applicant, Andre Murray, from commencing and/or continuing this, or any, proceeding or, in the further alternative, any proceeding against 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan, in the Court of Queens Bench, except with leave of a Judge of the Court of Queens Bench pursuant to Rule 76.1 or if this matter is to be adjourned, far any reason, an Interim Order , prohibiting the Applicant, Andre Murray, from commencing and/or continuing this, or any,

proceeding or, in the further alternative, any proceeding against 501376 N.B. Ltd., Mecca Corporation or Richard McGuigan, in the Court of Queens Bench, except with leave of a Judge of the Court of Queens Bench pursuant to Rule 76.1; is to cause the Applicant to have to potentially endure costly time consuming preliminary motions, 46

creating unreasonable delay, additional costs and consuming this Honourable Courts resources. This, the ambit (scope or extent) would also create additional burdening costs for the Royal Bank or any other party, who would ultimately respond and oppose such motions. All of this on the unfounded, erroneous untrue claim that Andre Murray has persistently and without reasonable grounds commenced vexatious proceedings and conducted proceedings in a vexatious manner. 501376 N.B. Ltd.,, in filing this motion, reveals that they want the Applicant to suffer undeserved hardship instead of the usual course of all parties proceeding naturally according to the Rules of Court. This is a disproportional remedy. It is disproportional that this draconian Order be granted, the inconvenience this would create as well as the burden on the parties is not reasonable. 133. The fourth step in the overbreadth analysis is there are certain spheres of

government activity, like the protection of the environment, which are very broad and do not lend themselves to precise codification, and with such legislation, the breadth of a provision may very well match the breadth of the legislative goal. This is not such a moment.

134.

The Order 501376 N.B. Ltd., is seeking is overbreadth and not appropriate in

the circumstances, and if miraculously granted, should be struck down upon review like any unjust law or law of the case. Learned Trial Judges should not grant unjust, obviously unbalanced and overbreadth orders Paragraph 6 requested Order Costs Cost Orders In Favor Of Self-Represented Litigants 135. McNichol v. Co-operators General Insurance Company, Chief Justice Drapeau addresses orders for costs in favor of self-represented litigants, stating: [43]. . . Rule 59.01, however, makes it clear that costs are in the discretion of the trial court who can determine by whom and to what extent costs shall be paid and that such costs can be fixed with or without reference to a tariff. In addition, there appears to be a modern trend regarding the granting of costs to unrepresented lay litigants.

47

McNichol v. Co-operators General Insurance Company, 2006 NBCA 54 (CanLII), para. 43 136. The Applicant offers that after due consideration, this Honorable Court may

conclude similarly as in McNichol v. Co-operators General Insurance Company, supra, that the case before it is one that calls for the exercise of this Honorable Courts discretion under Rule 59.01 in a manner favorable to a lay litigant; therefore, this Honorable Court may find it appropriate to order the Royal Bank to pay costs, which may be similarly fixed at $5,000, in addition to all reasonable disbursements. 137. In Fong, et al. v. Chan, et al, Sharpe J.A stated the opinion of the Court

regarding the right of self-represented lay litigants to recover costs. [15] The appellant relies on a number of decisions, discussed below, on the right of self-represented lay litigants to recover costs. The appellant submits that those cases establish that lay litigants may be awarded costs, including counsel fee, and that it follows that self-represented solicitors must be similarly entitled. [16] Dicta from the Chorley case, supra, was long thought to preclude recovery by self-represented lay litigants of any costs beyond disbursements. In Chorley, the English Court of Appeal stated that the opportunity cost rationale did not apply to self-represented lay litigants. In the courts view, a self-represented litigant who is not a solicitor should not been titled to recover costs as such a party does not bring professional skill and competence to the case and a litigant sown time and trouble is not a pecuniary loss which the law can measure. Bowen L.J. held that the common law rule precluded recovery, but noted that the Court of Chancery had on occasion allowed a reasonable allowance for the self-represented litigants loss of time. He quoted a leading text on Chancery practice, Lushs Practice (3d ed.) at 896: A party not an attorney, suing or defending in person, is entitled to no more than his expenses out of pocket or at most to a reasonable allowance beyond for his loss of time. [17] In more recent times, the English courts recognized the inconsistency of allowing self-represented lawyers to recover for their time while refusing the same right to lay litigants. In Buckland v. Watts [1970] 1 Q.B. 27 at 31, Donaldson J. observed that in principle the opportunity cost rationale applied equally to self-represented lay litigants, and that their time could be compensated with appropriate modification for lack of professional skill and training. However, Donaldson J. held that he was not free to depart from past authority, and he disallowed the lay litigants claim. His decision was upheld on appeal:[1970] 1 Q.B. 27 at 35-38. The anomaly in the United Kingdom was 48

removed by legislation that now allows lay litigants to recover costs: Litigants in Person (Costs and Expenses ) Act (U.K.),1975, c. 47. [18] In an early Ontario case, Millar v. Macdonald (1892), 14P.R. 449 (Div. Ct.) at 501, the Chancery rule, referred to above,was applied. Boyd C. held that the successful self-representeddefendant was to be awarded disbursements and some allowance,but of a moderate description, for his time and trouble on the argument. Boyd C. noted, however, that the award was exceptional, and was made because the defendant had been faced with committal for contempt. [19] While there appears to be little Ontario authority on the subject, appellate courts in two provinces have held that self-represented lay litigants may be awarded costs. In Macbeth v. Dalhousie College and University (1986), 10 C.P.C. (2d) 69, the Nova Scotia Court of Appeal held that a self-represented lay litigant was entitled to recover costs primarily on the basis that the common law rule precluding such recovery constituted a denial of equality rights guaranteed by s. 15 of Charter of Rights and Freedoms. This reasoning was superceded by subsequent decisions of the Supreme Court of Canada precluding the direct application of the Charter to common law rules governing litigation between private parties (Retail, Wholesale &Department Store Union, Local 580 v. Dolphin Delivery Ltd.,1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573) and insisting on the need to establish discrimination on an enumerated or analogous ground to support as.15 claim (Andrews v. Law Society of Upper Canada, [1989] 1S.C.R. 143). In Law Society of Prince Edward Island v. Johnston,1988 CanLII 1365 (PE SCAD), (1988), 54 D.L.R. (4th) 18, the Prince Edward Island Court of Appeal, referring to Dolphin Delivery, supra, held that the Charter did not apply to the claim of a self represented litigant to costs. That court also rejected the claim on the ground that costs could only be awarded on an indemnity basis. [20] The British Columbia Court of Appeal arrived at the same result achieved in the Macbeth case without resort to the Charter. In Skidmore v. Blackmore 1995 CanLII 1537 (BC CA), (1995), 122 D.L.R. (4th) 330,a five judge panel of the British Columbia Court of Appeal overruled the courts earlier decision in Kendall v. Hunt (1979),106 D.L.R. (3rd) 277, which held that self-represented litigants could not recover costs in excess of disbursements. In Skidmore, the court found that the 19th century English rule reflected by the Chorley and Buckland cases could no longer be justified. Cumming J.A. pointed out that modern cost rules reflected a variety of purposes. While indemnity remained one important element, costs were also ordered or withheld as a means of controlling behaviour by discouraging frivolous suits or meritorious defences, and as a way of sanctioning unnecessary steps in litigation, as well as misconduct by litigants or their counsel. Modern costs rules also were designed to promote and encourage settlements. In Cumming J.A.s view, it was important for the court to have at its disposal full costs sanctions, whether litigants were represented or unrepresented. Moreover, the refusal to allow selfrepresented costs on indemnity grounds was difficult to justify as the time is money rationale applies every bit as much to the lay litigant as to the selfrepresented lawyer. Cumming J.A. noted that any difficulty in measuring the amount to which the lay litigant is entitled could be answered in British 49

Columbia by strict application of the tariff. Finally ,it was held that the court was competent to effect this change in the common law as (at 342) the matter of costs is a question essentially within the discretion of the court, it bears directly on matters of practice, and it is something on which this court is well situated to rule. [21] It is apparent from this review of the case law that the preponderance of modern authority supports the contention that both self-represented lawyers and self-represented lay litigants may be awarded costs and that such costs may include allowances for counsel fees. Since the Chorley decision in 1884, it seems not to have been doubted that self-represented solicitors could recover costs for solicitors fees. The respondents did not take issue with that proposition on this appeal. Johnson v. Ryckman, supra stands for the proposition that a self-represented solicitor could not recover anything for counsel fee, but as I have already noted, it was acknowledged in that case that there seemed to be no rationale for the rule. I am not persuaded by the respondents submission that this 1903 case, which rests on such a shaky foundation, should continue to govern us today. Johnson v. Ryckman has been superceded by more recent cases that have quite properly ignored the untenable distinction between solicitors fees and counsel fees. I can see no reason for maintaining the distinction between solicitors fees and counsel fees that was already outmoded almost one hundred years ago. The legislatures decision to allow parties to recover costs in relation to the work of salaried employees provides added impetus to reject the view that self-represented solicitors should be precluded from recovering costs. Two provincial appellate courts have held that lay litigants may recover costs, including counsel fees. The clear trend of both the common law and the statutory law is to allow for recovery of costs by self-represented litigants. [22] Quite apart from authority and as a matter of principle, it seems to me to be difficult to justify a categorical rule denying recovery of costs by selfrepresented litigants. As noted in the Fellowes McNeil, supra and in Skidmore, supra, modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. It seems to me that all three purposes are fostered by allowing the trial judge a discretion to award costs to self-represented litigants. [23] Since the Chorley case over one hundred years ago, it had been accepted that self-represented lawyers are entitled to indemnity on the time is money or opportunity cost rationale. It is difficult to see why the opportunity cost rationale should not be more generally applicable to self-represented litigants. The self-represented lawyer possesses legal skills, but lacks professional detachment when acting in his or her own cause. If the law is prepared to compensate lawyers for this loss of time when devoting their efforts to their own cause, I fail to see any basis for denying the same entitlement to self-represented lay litigants who are able to demonstrate the same loss.

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[24] A rule precluding recovery of costs, in whole or in part, by self-represented litigants would deprive the court of a potentially useful tool to encourage settlements and to discourage or sanction inappropriate behaviour. For example, an opposite party should not be able to ignore the reasonable settlement offer of a self-represented litigant with impunity from the usual costs consequences. Nor, in my view, is it desirable to immunize such a party from costs awards designed to sanction inappropriate behaviour simply because the other party is a self-represented litigant. [25] I would add that nothing in these reasons is meant to suggest that a selfrepresented litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge, and as Ellen Macdonald J. observed in Fellows, McNeil v. Kansa, supra, there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be cases where the self-represented litigants conduct of the proceedings is inappropriate. The trial judge maintains a discretion to make the appropriate costs award, including denial of costs. [26] I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The selfrepresented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those 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, they incurred an opportunity cost by foregoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a moderate orreasonable allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a perdiem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guide lines to the Assessment Officer as to the manner in which the costs are to be assessed. CONCLUSION [27] For these reasons, I would allow the appeal, and set aside the Certificate. It is still necessary to determine whether the amounts claimed for the salaried associates, partners and articling student are reasonable. Accordingly, I would refer the matter back to the Assessment Officer with a direction that the costs be assessed in accordance with these reasons. The appellant is also entitled to costs of the Assessment and of this appeal. Fong, et al. v. Chan, et al., 1999 CanLII 2052 (ON CA), paras. 15 - 27

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138.

As similarly stated in King v. Barker, 2006CanLII 27871 (ON SC) . . .Costs

should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to work ordinarily done by a lawyer retained for litigation, and that as a result, self-represented litigants incurred an opportunity cost by foregoing remunerative activity such as the Applicant before this Honourable Court. It is abundantly clear that the Applicant devoted much time to present thought-provoking legal arguments ordinarily submitted by an attorney, is further evidenced by the quality of the material presented for consideration by this Honorable Court. King v. Barker, 2006CanLII 27871 (ON SC), para. 5 139. As stated in Fong, et al. v. Chan,, three purposes are fostered by allowing the . . . modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. . . . Fong, et al. v. Chan, et al., supra,para. 22 140. As is well established by the Courts, lay litigants may recover costs, including

trial judge discretion to award costs to self-represented litigants:

counsel fees. This is a clear trend of both the common law and the statutory law to allow for recovery of costs by self-represented litigants. 141. Costs may be awarded to those lay litigants who can demonstrate devoted time

and effort, which would ordinarily have been done by a lawyer retained for same litigation. Further, it is consistent when lay litigants incurred an opportunity cost by foregoing their usual remunerative activity; therefore, awarding of additional costs is a useful tool of the Court to encourage settlements and/or to discourage or sanction inappropriate behavior, as the case may be. 142. In consideration for costs of a proceeding, the Applicant would like this

Honourable Court to consider granting costs in favor of the Applicant because of the

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importance of the issues. In

Lang v. Tran, Cavarzan J. addressed the following

regarding importance of the issues: With respect to the factor involving the importance of the issues, I note that the rule does not refer to the importance of the issues to the parties. No doubt, when matters require resolution by proceeding to trial the issues are important to the parties. In my view, however, importance of the issues comprehends matters of general importance affecting the rights of society at large, . . . Lang v. Tran, 2006 CanLII 32627 (ON SC), para. 11 143. A Charter violation, which may be cured by the Applicants actions, should

qualify as an important issue. This is a matter of general importance affecting the rights of society at large. 144. The Court should consider this in context that the 501376 N.B. Ltd., is trying

to collaterally attack the Application regarding Charter issues, and the damage this motion could cause to the Applicants ability to have a Charter issue resolved. This subject collateral attack upon the Applicant is by 501376 N.B. Ltd., , which is not relevant to a Charter Challenge yet they maliciously interfere with these callously motivated Motions, which the Applicant prays the learned trial judge considers to be offensive to accepted standards of decency, therefore, should not be rewarded by the Court, or condoned in any way. 145. Black's Law Dictionary defines frivolous as: frivolous, adj. Lacking a legal Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,8th ed., frivolous. (Thomson/West, 2004) at p. 1969 146. Black's Law Dictionary defines vexatious as: vexatious, adj. (Of conduct) Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,8th ed., vexatious. (Thomson/West, 2004) at p. 4842

basis or legal merit; not serious; not reasonably purposeful.

without reasonable or probable cause or excuse; harassing; annoying.

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147.

The Applicant believes that the conduct of the 501376 N.B. Ltd., in their most

recent example of inappropriate litigious Motions should qualify under the subject of frivolous and vexatious. This Honorable Court should consider same when deciding the matter of costs of this application. 148. Having considered the provided arguments for costs, this Honorable Court

may find it appropriate to order 501376 N.B. Ltd., to pay costs throughout, in addition to all reasonable disbursements. Solicitor-Client Costs 149. The test for awarding solicitor-and-client costs is whether a party has engaged in reprehensible, scandalous or outrageous conduct. Baker v. Canada (MCI) states and there is a similar reference in Young v. Young, [1993] 4 S.C.R.3 (CanLII):Solicitorclient costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (CanLII), para 77 150. In Young v. Young, the Court expressed the test for considering an award of

solicitor-client costs: . . . Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. The facts that an application has little merit do not justify awarding solicitorclient costs. The trial judge ordered solicitor-client costs against the respondent. This award was made on the basis that the custody claim had "little merit", that the respondent attempted to mislead the court, that the respondent was recalcitrant on matters of custody and maintenance and, finally, on the basis that unnecessary proceedings had resulted. The trial judge also referred to the fact that someone else was promoting and paying for the legal action and that repetitive and irrelevant evidence was tendered. The Court of Appeal, per Cumming J.A., upheld the imposition of solicitor-client costs for four days of the trial and for four days of the interlocutory proceedings concerned with financial issues, on the basis of the husband's non-disclosure of financial information. Otherwise, costs against the respondent were reduced to party-and-party costs. 54

The Court of Appeal's order was based on the following principles, with which I agree. Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. Accordingly, the fact that an application has little merit is no basis for awarding solicitor-client costs; The Court of Appeal meticulously considered all the proceedings in the light of these principles to arrive at its conclusion that only partial solicitor-client costs were justified. Young v. Young, supra, section 1-2 under Costs 151. The Supreme Court of Prince Edward Island in the case of Kelly v. Attorney

General of Canada, provided the following guidance about solicitor-client costs, please note the distinction of intra-litigation conduct: 15... The authorities are clear that it is only in the rare and exceptional case that costs are awarded on a solicitor-and-client scale rather than on a party-and-party scale . . .: An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional cases to mark the court's disapproval of the conduct of a party in the litigation. The principle guiding the decision to award solicitor-and-client costs has been enunciated thus: [S]olicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances giving rise to the cause of action, or in the proceedings, which makes such costs desirable as a form ofchastisement. 17 ... At the risk of over-generalizing, the cases in which such awards are made are ones in which the pre- or, intra-litigation conduct of the unsuccessful party can be described as "egregious", "offensive", or in the words used in the passage from Orkin quoted above, "reprehensible". The term "reprehensible" is defined in the Oxford Modern English Dictionary as "deserving censure or rebuke; blameworthy." Kelly v. Attorney General of Canada &Ors., 2007 PESCTD 15 (CanLII),para. 64 152. Black's Law Dictionary provided the definition of scandalous matter as:

scandalous matter. Civil procedure. A matter that is both grossly disgraceful (or defamatory) and irrelevant to the action or defense. Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,8th ed., scandalous matter. (Thomson/West, 2004) at p. 4187

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153.

Black's Law Dictionary provided the definition of outrageous conduct as:

outrageous conduct. Conduct so extreme that it exceeds all reasonable bounds of human decency. Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,8th ed., outrageous conduct. (Thomson/West, 2004) at p. 896 154. Oxford Dictionarys definition of reprehensible is reprehensible. adjective,

deserving censure or condemnation: reprehensible. Oxford Dictionaries. April 2010. Oxford Dictionaries. April 2010. Oxford University Press. 11 December 2012 <http://oxforddictionaries.com/definition/english/reprehensible> 155. Black's Law Dictionary provided the definition of conduct as: conduct. n.

Personal behavior, whether by action or inaction; the manner in which a person behaves. Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,8th ed., conduct. (Thomson/West, 2004) at p. 895 156. In Stanley v. Henning, Justice Hinds J. provided the following insight into an

award of Solicitor Client Costs as follows: My view is that if there is power to award solicitor-and-own-client costs it is a power that should not be exercised, or should only be exercised in the most extraordinary circumstances. [5] Assuming, but without concluding, that there is jurisdiction to award solicitor-and-own-client costs, I decline to do so because the circumstances of this application, which later will be described, fall considerably short of being "most extraordinary". [6] I now turn to consider the question of whether costs should be awarded to the defendant on a solicitor-and-client basis. .. I have concluded that solicitorand-client costs may be awarded in cases where one of the parties has deliberately and without cause delayed adjudication of the case; where one party has committed serious misconduct such as hiding property from the scrutiny of the court, committing perjury, being in contempt of court, or disobeying an order of the court. [7] The majority of society may have some revulsion of the foregoing behaviour of the plaintiff. But that does not constitute a ground for the court to award solicitor-and-client costs. To make such an award, some form of misconduct directed towards the court proceedings should be established. Such 56

misconduct was not established on this application. I therefore decline to award costs on a solicitor-and-client basis. Stanley v. Henning, 1987 CanLII 2501 (BC S.C.),paras. 4 -7 157. To make a cost award for solicitor-client cost in favor of 501376 N.B. Ltd., ,

some form of misconduct directed toward the court proceedings should be established. This must be shown to exist in this proceeding regarding the Charter application. If 501376 N.B. Ltd., is allowed to call or bring to mind to years of litigation history, which has nothing to do with this Charter application, 501376 N.B. Ltd., has filed this most inappropriate motion which is not on point with a Charter Challenge, thereafter demonstrates a lack of decently, by asking for costs on a solicitor-client basis, please consider 501376 N.B. Ltd., must be sanctioned not rewarded or else they will continue to play this card in every action they are involved in; there will be no end. 501376 N.B. Ltd., would file a motion for solicitor-client costs, responding to every motion the Applicant would file in fact to date that is exactly what has happened since year 2009. They will continue Ad nauseam. The implications of this Honourable Court establishing a precedent of awarding solicitor-client costs in favor of 501376 N.B. Ltd., for claims that occurred years ago, and not in this Application, are chimerical. 158. The Applicant has no qualifying misconduct or actions which could be

considered unreasonable in the circumstances, relative to this Charter application, could be established on this motion; therefore, this Honourable Court should decline to award costs on a solicitor-and-client basis. 159. Please reference the precondition of being unreasonable

in

the

circumstances, as a necessary for entitlement to solicitor-and-client costs in Insurance Corporation of British Columbia v. Somosh, as follows: I find the conduct of the plaintiff in pursuing this action to be unreasonable in the circumstances, and being unreasonable, Mrs. Somosh is likewise entitled to solicitor-and-client costs. Insurance Corporation of British Columbia v. Somosh, 1983 CanLII 673 (BC SC), para. 68 57

160.

Black's Law Dictionary defines unreasonable as: unreasonable. adj.1. Not

guided by reason; irrational or capricious. 2. Not supported by a valid exception to the warrant requirement <unreasonable search and seizure>. Garner, Bryan A. and Braum A. Garner, Black's Law Dictionary,8th ed., unreasonable. (Thomson/West, 2004) at p. 4779 161. 501376 N.B. Ltd., cannot produce evidence of conduct by the Applicant on

this Charter Application, which must be considered unreasonable in the circumstances or Not guided by reason; irrational or capricious. 162. Please note misconduct, sometimes characterized as unconscionable

conduct, has been labeled as a precondition to an award of solicitor-client costs, this was illustrated in Winnipeg Mortgage Holdings Ltd. v. Allard, MeredithJ. stated the following: Except where a litigant has no beneficial interest in the litigation, an award of solicitor-client costs will only be made where there has been "misconduct", sometimes characterized as unconscionable conduct. Mr. Kirkham has pointed to instances where solicitor-client costs have been awarded and where they have been refused; for example, where scandalous allegations are persisted in against the opposite party where a party has been in contempt of the court itself , or where the conduct of a party is shown in evidence to have been "unconscionable" The purpose of granting costs on the higher scale seems not to be that the successful party should emerge from the litigation unscathed by costs charged by his own solicitor, but that others should be deterred from similar conduct, and/or that a penalty should be inflicted Winnipeg Mortgage Holdings Ltd. v. Allard, 1980 CanLII 608 (BC SC), para. 3 163. Considering the authorities cited above, there is nothing in this Applicants

Charter Application which is reprehensible, scandalous or outrageous conduct on the part of the Applicant. Also considering the authorities cited above, it is 501376 N.B. Ltd., who is in fact exhibiting reprehensible, scandalous or outrageous conduct, they have brought matters that are both grossly disgraceful and irrelevant to this application. Otherwise known as scandalous matters according to Black's Law Dictionary above. 501376 N.B. Ltd., has provided repetitive and irrelevant evidence to this Honourable Court, apparently in an effort to again (as in all past encounters) 58

circumvent justice that probihits the Applicant from righteously Challenging the Charter violations the Applicant has witnessed in New Brunswick by way of Application. 164. 501376 N.B. Ltd., has exhibited conduct so extreme that it exceeds all

reasonable bounds of human decency, otherwise known as outrageous conduct according to Black's Law Dictionary above. 501376 N.B. Ltd., has also exhibited conduct which is deserving of censure and/or condemnation, which Oxford Dictionary defines above as reprehensible conduct. 165. 501376 N.B. Ltd., is trying to drag matters from various other proceedings

and lump those carefully chosen examples together in an effort to have this Court grant an award of costs for things that did not happen in the course of this subject application. If the Court grants such an order, then the Court would be facing the same specter of 501376 N.B. Ltd., continuing with this nefarious scheme to cheat people out of justice by way of attrition - loss of money by having to pay solicitor-client costs on every other motion, application or action in the future 501376 N.B. Ltd., can possible fill. 501376 N.B. Ltd., could just roll forward the same argument based on the same set of facts again and again, to any Applicants detriment. 166. The actions of 501376 N.B. Ltd., have caused unnecessary proceedings to result,

namely this gargantuan, inappropriate multifaceted motion, which is designed to block a most important Charter Application from being heard, and further burden the selfrepresented Applicant with the task of having to respond to this meritless motion. 167. The power to award solicitor-client costs it is a power that should not be

exercised, or should only be exercised in the most extraordinary circumstances, as expressed in Stanley v. Henning, supra above. The circumstances of this application fall considerably short of being most extraordinary. Solicitor-client costs may be awarded in cases where one of the parties has deliberately and without cause delayed adjudication of the case; where one party has committed serious misconduct such as committing perjury, being in contempt of court, or disobeying an order of the court. 59

None of these have occurred in this application before the Court, at least not on the part of the Applicant. 168. To make such an award, some form of misconduct directed toward the court

proceedings must be established. Such misconduct was not established on this motion. This Honourable Court, as noted above in Stanley v. Henning, supra, should decline to award costs on a solicitor-client basis in favor of 501376 N.B. Ltd.,. 169. The conduct of the Applicant in pursuing this application cannot be considered

unreasonable in the circumstances, and being reasonable, 501376 N.B. Ltd., is not entitled to solicitor-client costs, as expressed above in Insurance Corporation of British Columbia v. Somosh, supra. 170. In Winnipeg Mortgage Holdings Ltd. v. Allard, supra, the Court found that

solicitor-client costs have been awarded where there has been misconduct, sometimes characterized as unconscionable conduct, this conduct was found to include: where scandalous allegations are persisted in against the opposite party, where a party has been in contempt of the court itself, where the conduct of a party is shown in evidence to have been

unconscionable. 171. None of these conditions are present in this Charter Challenge application. The

purpose of granting costs on the higher scale seems not to be that the successful party should emerge from the litigation unscathed by costs charged by his own solicitor, but that others should be deterred from similar conduct, and/or that a penalty should be inflicted. The Applicant has done nothing in this application which would require a court ruling of misconduct.

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Paragraph 7 requested Order Such further and other Order a Court deems just Consideration of Rule 37.03 172. 501376 N.B. Ltd., claims the Applicants pleadings may be struck on the ground that they disclose no reasonable claim or cause of action. Interestingly enough, 501376 N.B. Ltd., is at the same time in violation of Rule 37.03 of the Rules of Court regarding content of notice of motion, while making these claims on motion. Rule 37.03 regarding content of notice of motion or preliminary motion states: A Notice of Motion or Preliminary Motion shall (a) state the precise order sought, (b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on, and (c) list the documentary evidence to be used at the hearing of the motion. Rules of Court, N.B. Regulation 82-73, Rule 37.03 173. 501376 N.B. Ltd., does not identify which paragraph or sub-rule they rely on,

let alone the clause or subclause when citing the Rules of Court Rule 37, Rule 39 or Rule 76.1. Furthermore, it cites the Judicature Act, R.S.N.B. 1973, c. J-2, and again not the section or relative portion of the Judicature Act. Such a practice does not conform with the spirit nor the letter of Rule 37.03(b). A motion should, by its terms, direct the court to the specific rule, paragraph, clause or subclause relied upon. If the opposing party does not insist upon this, the motion judge should take judicial notice. In this matter the Applicant does insist and so should the motions Judge. For this reason alone, relief referring to Rule 37, 39, 76.1 and Judicature Act, supra, should be dismissed. 174. This position is supported by the case of Norris v. Lloyd's of London, in which

Drapeau, J.A (as he then was), stated the following regarding analysis of Rule 37.03(b) of the Rules of Court as follows: Lloyd's Notice of Motion does not identify which paragraph ofsubrule 23.01 it relies on, let alone the clause or subclause. Such a practice does not conform with the spirit nor the letter of Rule 37.03(b). A motion should, by its terms, direct the court to the specific rule, paragraph, 61

clause or subclause relied on. If the opposing party does not insist upon this, the motion judge should. Norris v. Lloyd's of London, 1998 CanLII 12249 (NB CA), p. 3

Bald or Boiler Plate Assertions 175. 501376 N.B. Ltd., has made bald or boiler plate assertions regarding the Applicants self-represented conduct and reasons for same. Including the most significant claims of frivolous, vexatious conduct, which 501376 N.B. Ltd., claims is an abuse of the process of the Court. Furthermore, when 501376 N.B. Ltd., cites one Judge who had an opinion about a particular aspect of one motion, this does not make that opinion consistent across every other motion in which the subject self-represented Applicant is involved. 176. In Morin v. Maritime Life Assurance Co., Justice George Rideout stated the

following regarding Boilerplate or bald assertions which are insufficient pleadings unless sufficient particularity is also found in the pleadings as follows: [17] Considering the authorities and the pleadings filed by the parties, I am of the view that a simple claim for punitive damages is insufficient. Something more must be contained in the pleadings to give enough particularity to permit a Defendant to know the case it must meet. The Plaintiff must, also, indicate in her pleadings, a particular conduct of the Defendant that is deserving of punishment. This she has failed to do. [18] Boilerplate or bald assertions are insufficient pleadings unless sufficient particularity is also found in the pleadings, which support the boilerplate. If no such support is provided then this type of pleading should be discouraged. [19] As the action was recently commenced, the parties have not yet had discovery or exchange of documents. Consequently facts may subsequently arise which would give rise to a claim for punitive damages. If that were to be the case, the Plaintiff could amend her Statement of Claim to assert a claim for punitive damages provided it is plead with sufficient particularity. Rule 27.10 would be applicable in these circumstances. Morin v. Maritime Life Assurance Co., 2003 NBQB 96 (CanLII) paras. 17 19 177. Black's Law Dictionary defines boilerplate as follows:

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boilerplate,n.1. Ready-made or all-purpose language that will fit in a variety of documents. The term, first recorded in 1893, may have referred to steel plates affixed to boilers. But the modern sense comes from the use of the term to refer to copy set on printing plates (or molds to make the plates) and distributed in that form to newspapers. The copy could not be edited. Garner, Bryan A. and Braum A. Garner,Black's Law Dictionary,8th ed., boilerplate. (Thomson/West, 2004) at p. 524 178. As similarly stated above in Morin v. Maritime Life Assurance Co.,the

Applicant contends that 501376 N.B. Ltd.,s claims in the subject motion do not disclose sufficient cause for striking the Applicants application, these are simply boilerplate or bald assertions. Boilerplate or bald assertions are insufficient pleadings unless sufficient particularity is also found in the pleadings of 501376 N.B. Ltd.,s Motion is deficient of sufficient particularity.

Paragraph 7c, 7d, and 7e TEST RE: VEXATIOUS ACTION 179. Again in Moncton Family Outfitters et al. v. Schelew, supra,the court provided the test for vexatious actions as follows: [65] In addition to pleading abuse of process, the Statement of Defence of Bernard Schelew says the action of Irving Schelew and the Statement of Claim of MFO are frivolous and vexatious. [66] InK.(L.) v. Childrens Aid Society of Lanark 1998 Carswell Ont. 2034 Justice Binks discusses the principles relating to vexatious actions at paragraphs 13 and 14: 13 The following principles have been extracted from a review of the cases dealing with issues of vexatious actions: (a) the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding; (b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good or if no reasonable person can reasonably expect to obtain relief, the action is vexatious; (c) vexatious actions include those actions for an improper purpose including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented often with actions brought 63

against the lawyers who have acted for or against the litigant in earlier proceedings; (e) in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action; (f) the failure of the person instituting the proceedings to pay costs of an unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; (g) the plaintiffs conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings. Lang Michener Lash Johnston v. Fabian(1987), 16 C.P.C. (2d) 93 (Ont. H.C.) 14The word vexatious has not been defined clearly, but does include the bringing of one or more actions to determine an issue which has already been determined, as well as the bringing of actions which cannot succeed or lead to no possible good. Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220 (Ont. C.A.), Mascan Corp. v. French (1988), 64.O.R. (2d) 1 (Ont. C.A.) [67] In Currie v. Halton Regional Police Services Board 2003 Carswell Ont. 4674 (Ontario Court of Appeal) Justice Armstong deals with the definitions and meaning of the terms `frivolous, `vexatious and `abuse of process. [68] He writes at paragraphs 14 to 17: 14.Blacks Law Dictionary defines frivolous as: Lacking a legal basis or legal merit; not serious; not reasonably purposeful. 15. In Foy v. Foy (No. 2)(1979), 26 O.R. (2d) 220 (Ont. C.A.), at 226, Howland, C.J.O. considered the meaning of vexatious under the Vexatious Proceedings Act, R.S.O. 1970, c. 481: The word vexatious has not been clearly defined. Under the Act, the legal proceedings must be vexatious and must also have been instituted without reasonable ground. In many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable ground. As a result the proceedings were found to constitute an abuse of the process of the Court. An example of such proceedings is the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction: Stevenson v. Garnett, [1898] 1 Q.B. 677 at pp. 680-1; Re Langton, [1966] 3 All. E.R. 576. 16. In discussing the inherent power of the court to invoke the doctrine of abuse of process, apart from rule 21.01(3)(d), Finlayson J.A. for the majority in Canam Enterprises Inc. v. Coles 2000 CanLII 8514 (ON C.A.), (2000), 51 O.R. (3d) 481 (Ont. C.A.), revd on other grounds 2002 64

SCC 63 (CanLII), (2002), 220 D.L.R. (4th) 466, 2002 SCC 63 (S.C.C.) at para. 31 stated: The court can still utilize the broader doctrine of abuse of process. Abuse of process is a discretionary principle that is not limited by any set number of categories. It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy. Goudge J.A. for the minority in the same case, stated at paras. 55 and 56: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine un-encumbered by the specific requirement of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 2 All. E.R. 990 (C.A.). One circumstance in which abuse of process has been applied is where the litigation before the Court is found to be in essence an attempt to relitigate a claim which the court has already determined. 17. It is apparent that there is a degree of overlap in the meaning of the terms frivolous, vexatious and abuse of process. What I take from the authorities is that any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction. [84] For these reasons, I conclude that the action of Irving Schelew and the Statement of Claim of MFO are not frivolous, vexatious or an abuse of the process of the court. Moncton Family Outfitters et al. v. Schelew, supra, paras. 65 -84 180. Herein below please find the principles which have been isolated from the

Applicants review of the cases dealing with issues concerning the vexatious actions test, provided above: (a) the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction constitutes a vexatious proceeding; (b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good or if no reasonable person can reasonably expect to obtain relief, the action is vexatious; 65

(c) vexatious actions include those actions for an improper purpose including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights; (d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings; (e) in determining whether proceedings are vexatious, the Court must look at the whole history of the matter and not just whether there was originally a good cause of action; (f) the failure of the person instituting the proceedings to pay costs of an unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and (g) the partys conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings. 181. The Respondent has tried to convince the Court that all these conditions are

present, in the matter before this Court. 182. When reflecting upon the vexatious actions test Andre Murray provided herein

above paragraph 117 (a) of the vexatious actions test above, this claim is categorically untrue, nevertheless found repeated in paragraphs 7b, of 501376 N.B. Ltd.s Motion, the full argument of why this matter is not res judicata is addressed in the same titled section of this brief. 183. When reflecting upon the vexatious actions test Andre Murray provided herein

above paragraph 117 (b) of the vexatious actions test, this claim is categorically untrue, nevertheless found repeated in paragraphs 7e of the 501376 N.B. Ltd.s Motion. This application is a bonafide Charter Challenge, inter alia to have a declaration that offending portions of New Brunswicks Residential Tenancies Act, supra, and portions of the Property Act, supra, be struck or stayed until amended to become Charter compliant. The possibility of changing provincial legislation so that it is Charter 66

compliant is beneficial to every residential tenant and the entire public body of the Province of New Brunswick. 184. When reflecting upon the vexatious actions test Andre Murray provided herein

above paragraph 117 (c) of the vexatious actions test, this claim is categorically untrue, nevertheless found repeated in paragraphs 7 c, 7d, and 7e of 501376 N.B. Ltds Motion. The Applicant was first brought into court as a Defendant, when his residential tenancy rights, (as assured by the legislation of New Brunswick states the Residential Tenancies Act is NOTWITHSTANDING all other legislation including the Judicature Act), were being circumvented by the Royal Bank and others. Since that time, and as a consequence of the actions of various persons, they have opened themselves to legitimate claims in tort, which the Applicant is responsibly pursuing through the proper legal channels. 185. When reflecting upon the vexatious actions test Andre Murray provided herein

above paragraph 117 (d) of the vexatious actions test, this claim is categorically untrue, nevertheless found repeated in paragraphs 7b of the 501376 N.B. Ltd.s Motion. The same set of facts may give rise to multiple tort claims and cannot be considered as grounds and issues rolled forward into subsequent actions. 186. When reflecting upon the vexatious actions test Andre Murray provided herein

above paragraph 117 (e), please note this is the first time the Applicant ever made an application pursuant to the Charter to have a declaration regarding residential tenancy rights. The originating process from which this action stems we see that the Applicant was involved with the subject action filed by the Royal Bank and 501376 N.B. Ltd. naming Andre Murray as Defendant. The Statement of Claim filed, by the Royal Bank and 501376 N.B. Ltd. therefore, attempting to support the subject action, did make allegation of damages for unjust enrichment, further, that the Defendant had wrongfully converted the property and that the Defendant was occupying the property without permission or consent. Please Note that none of the alleged tort claims by the Plaintiffs in that matter have been settled. What is also striking is that the Court 67

recognized the residential tenancy leasehold of Andr Murray to be legal and bona fide. Therefore it is reasonable that Andr Murray could not have been occupying the property without permission or consent, and the allegation of tort of conversion of property is meritless. 187. When reflecting upon the vexatious actions test Andre Murray provided herein

above paragraph 177 (f) of the vexatious actions test, it is premature to pay costs when the proceedings have not been completed or the issues are yet unresolved. No Reference to this allegation is found in 501376 N.B. Ltds Motion.

Further to the above it must be noted that Court File MC/062/09 has not yet reached trial, only preliminary motions have been heard, yes costs have been awarded, nevertheless, it would be premature to pay costs when the Originating Process and the Statement of Claim (found there within) has yet to come to trial. Court file FC/148/11 and FC/210/11 have had no Motions decided upon and it is noteworthy that to date the Applicant has not been a part of any litigation which has been conclusively decided by way of trial on the merits, which would finally decide matters between parties. 188. When reflecting upon the vexatious actions test Andre Murray provided herein

above paragraph 177 (g) of the vexatious actions test, a party who is unsuccessful on a meritorious appeal may be unsuccessful for a variety of reasons, none of which are necessarily because of a lack of merit. A seasoned lawyer can use the Rules of Court strategically to bar a self-represented appellant from ever having the merits of their cause reviewed. This is known as sharp practice, and should not be used as a legal strategy, but has been used persistently by New Brunswick lawyers against the selfrepresented litigant Andre Murray. This sharp practice is occurring on a regular basis despite the Law Society of New Brunswicks Code of Professional Conduct, which forbids sharp practice, furthermore that which the public has learnt not to trust. Reference to this allegation is found in paragraph 2g of the Royal Banks respective subject Motion. The Court of Appeal of New Brunswick makes errors, thereafter our only remedy is Supreme Court of Canada which although 1000 applications are 68

accepted each year the Supreme Court of Canada policy of hearing only 65 to a limit of 80 Application based on a dubious screening system of Public Interest and or National Interest significantly reduces the publics opportunity to obtain a balanced remedy when attending (in this case) a New Brunswick Court of Queens Bench Court House. Each year less than 10 per cent of the applications accepted as filed to the Supreme Court of Canada will be heard despite how meritorious they are, and consequentially will not be permitted to be considered the following year. 189. are: 1. The defendant must have used the legal process; 2. He must have done so for a purpose other than that which the process in question was designed to serve, that is, for a collateral and illicit purpose; 3. He must have done some definite act or made some definite threat in furtherance of the purpose; and 4. Some measure of special damage must be shown, Westminer Canada Holdings Ltd. v. Coughlan, 1994 CanLII 4094 (NS CA) 190. The first element of the abuse of process test is the accuseds use of the legal TEST 2 - Abuse of Process The four elements required for a finding of an

abuse of process are set out in Westminer Canada Holdings Ltd. v. Coughlan, and they

process, which is evident. The Applicant is technically involved in several litigation procedures, in deferring capacities, such as a self-represented Defendant, selfrepresented Plaintiff, and self-represented Applicant, using the legal process in those procedures to defend himself from abuse of other parties actions and consequences of same. 191. The second part of the abuse of process test is that the accused must have used

litigation for a purpose other than that which the process in question was designed to serve, that is, for a collateral and illicit purpose. The Law on Torts states, The essential elements of abuse of process are first, a collateral and improper purpose such as extortion...The Respondents cannot prove this simply because it did 69

not occur. Furthermore, in Moncton Family Outfitters et al. v. Schelew, supra, Justice Letourneau stated, The gist of the tort is the misuse or perversion of the Courts process, there is no abuse when a litigant employs regular legal process to its proper conclusion, even with bad intentions. In this case there were no bad intentions, only a self-represented litigant abruptly thrust into the self-represented litigation seat as the tenant Defendant was forced to protect his residential home, and thereafter pursue damages, according to the Rules of Court and accepted legal procedures, for being illegally evicted from his home. According to Justice Letourneau, it would not matter if the Respondents were able to convince the Court of bad intentions, which is without merit, unfortunately this is the premise the Respondents are basing their atrocious request of the Honorable Court to Order a stay and or striking of the Andre Murrays entire Charter Challenge Application. John G. Fleming, The Law of Torts, 4th ed. (Sydney, 1971), pp. 547-8 Moncton Family Outfitters et al. v. Schelew, supra, at para. 37 192. The third element of the abuse of process test is the accused must have done

some definite act or made some definite threat in furtherance of the purpose. TheLaw on Torts states, Secondly, a definite act or threat, in furtherance of a purpose not legitimate in the use of the process. Some such overt conduct is essential, because there is clearly no liability when the defendant merely employs regular legal process to its proper conclusion, albeit with bad intentions. This did not occur at any time, there were no threats or furtherance of such a purpose. There can be no evidence to support this claim because it did not happen. John G. Fleming, The Law of Torts, 4th ed. (Sydney, 1971), pp. 547-8 193. The fourth element of the abuse of process test is that some measure of special

damages must be shown. 501376 N.B. Ltd.,cannot show special damages for something that did not occur, because it is a baseless, meritless accusation. 501376 N.B. Ltd., cannot reasonably claim, that it is self-evident, from the costs associated with the various litigations, that damages have been suffered. Furthermore, the claim that the legal steps brought for a legitimate purpose may have the collateral effect also of antagonizing, impoverishing or intimidating the complaining 501376 N.B. Ltd., is 70

not enough to justify a claim based on an abuse of process, because any law suit may have that effect on a party. This point was made in Moncton Family Outfitters et al. v. Schelew, supra: Gravely, L.J.C.C. writes: . . . . . it is claimed that the alleged abuse of process has as its intent the antagonizing, impoverishing and intimidating the tenantso that the tenant will be forced out of business and leave the demised premises, thus enabling the landlord to re-rent or develop the property. The proceedings taken by the landlord have, as one of their objectives, the legal recognition of the landlords claim to possession. That the legal steps brought for a legitimate purpose by the landlord may have the effect also of antagonizing, impoverishing or intimidating the tenant is, in my view, not enough to justify a claim based on an abuse of process. Any law suit may have that effect on a party. Moncton Family Outfitters et al. v. Schelew, supra, para. 54 194. 501376 N.B. Ltd., has failed to meet the abuse of process test.

Conclusion 195. 196.

501376 N.B. Ltd , should fail to meet the plain and obvious test, threshold. 501376 N.B. Ltd , fails to meet the requirement necessary for the Court to

find cause to strike this application pursuant to the plain and obvious test. 197.

501376 N.B. Ltd , fails to meet the four elements threshold, a requirement

necessary for the Court to find an abuse of process. 198.

501376 N.B. Ltd , fails to meet the seven elements threshold, necessary for

the Court to find this Application vexatious. 199.

501376 N.B. Ltd , is callously manipulating the Rules of Court thereby

abusing the process of the Court, twisting the perception of what should be the priority in a obfuscation that which is atrocious; their intention is: at all costs to the extent of even risking their own reputation; to stop or derail the hearing of a Charter Challenge which may ultimately prevent them and or their clients from continuing to profit from behaviour which is best described as carpet baggers in their behaviour towards the 71

home owners and residential tenants of New Brunswick. Unjust legal wizardry, if supported by the Court, will bring the administration of justice into disrepute.

Response to paragraph 7d of Respondents Motion 200.

The Respondent 501376 N.B. Ltd , has asserted the following by c) A Justice of the Court of Appeal in a decision dated March 22, 2012 has found, as a matter of fact, that Andre Murray has persistently and without reasonable grounds commenced vexatious proceedings and conducted proceedings in a vexatious manner in the Court of Queens Bench and the Court of Appeal;

Motion, Dated July 3, 2012, at paragraph 7c):

201.

Please Note, a Trigger Word, is a word that initiates a process or

course of action. Without the appropriate investigation, the Court will be deliberately misled to negatively consider the Applicants actions. 501376 N.B. Ltd., is attempting to paint a picture, of a finding of a Judge from the Court of Appeal, through the use of trigger words, slanting the Courts perception of that judgement against the Applicant, so that this Court believe that Justice Bell made these claimed findings, which is false. The trigger words are bolded below for emphasis: c) A Justice of the Court of Appeal in a decision dated March 22, 2012 has found, as a matter of fact, that Andre Murray has persistently and without reasonable grounds commenced vexatious proceedings and conducted proceedings in a vexatious manner in the Court of Queens Bench and the Court of Appeal;
202.

First of all the Court only ever addressed the matter before him, in the

section of this decision titled A. Complexity of the Proceeding / Vexatious Conduct

/ Prolixity not the lower Court proceeding or the Applicants conduct in the

lower Court proceedings, in any way. The Court did not establish the claimed paragraph 7c) alleged facts. This statement is categorically false. Only one
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Motion of the five under review for leave to Appeal, File number 142-11-CA, was filed by the Applicant, the other four Motions were filed by Royal Bank of Canada and 501376 N.B. Ltd. The Court, within the quoted decision, only addressed matters it though were relevant to the matter of leave to Appeal, nothing more. The decision reflects the Courts view, of what it believed were deserving of a higher cost award which occurred leading up to the hearing of the Leave to Appeal Application only.
203.

To put the facts in context, usually a party Appeals one Motion at a

time, Justice Bell was in fact reviewing essential material from five separate motions which were being appealed, which is unusual. The Court Appealed from, Justice Zoel R. Dionne announce at one hearing that the volume of material it had before it, for just those five Motions, was five bankers boxes of Affidavits, records and briefs that was for the most part the material submitted by the Royal Bank of Canada and 501376 N.B. Ltd. Remember only one Motion of the five was filed by the Applicant. Justice Bell stated I therefore
had before me a record constituting 1,368 pages, which is a paltry amount compared to five bankers boxes of source material, from the five Motions. At the Leave to Appeal hearing, Solicitor for the Royal Bank of Canada still complained of material missing, though could not exactly specify what was missing from the record.

204.

The statement: Andre Murray has persistently and without reasonable

grounds commenced vexatious proceedings is categorically false and not reflected whatsoever in the subject decision of Justice Bell.
205.

The statement: Andre Murray has conducted proceedings in a

vexatious manner in the Court of Queens Bench and the Court of Appeal is categorically false and not reflected whatsoever in the subject decision of Justice Bell.
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206.

Regarding the second decision reference, in the Motion, Dated July 3,

2012, 501376 N.B. Ltd. is attempting to lead the Court to believe, the following, regarding Justice Robertsons decision dated June 19, 2012: d) Another Justice of the Court of Appeal in a decision dated June 19, 2012 has found, that Andre Murray, is hostile and abusing the process of this Honorable Court through frivolous and contemptuous, unmeritorious proceedings;
207.

Again a Trigger Word, is a word that initiates a process or course of

action. When we dissect the above paragraph we see several trigger words which the Court is supposed to accept as true. Without the appropriate investigation, the Court will be misled to consider the Applicants actions negatively. 501376 N.B. Ltd., is attempting to paint a picture, of a finding of a Judge from the Court of Appeal, through the use of trigger words, slanting the Courts perception of that judgement against the Applicant, so that this Court believe that Justice Robertson made these findings directly refereeing to Andre Murray, the trigger words are bolded below for emphasis. d) Another Justice of the Court of Appeal in a decision dated June 19, 2012 has found, that Andre Murray, is hostile and abusing the process of this Honorable Court through frivolous and contemptuous, unmeritorious proceedings;

208.

Please Note the following negative trigger words: 1. 2. 3. 4. 5. hostile; abusing the process; frivolous; contemptuous; unmeritorious proceedings;

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209.

First, the word (1) hostile. The only paragraph in which the word

hostile appears is in paragraph 10, in which the Court is speaking generally about self-represented litigants, not actually about Andre Murray specifically as a party. [10] Unfortunately, what courts are facing today is a cluster of cases in which the self-represented litigant is generally unwilling and, at times, hostile to the prospect of taking instruction from the court, particularly as to what can be argued. Decision of Justice Robertson, Dated June 19, 2012, paragraph 10.
210.

Second, the word (2) abusing the process let alone abusing is in

fact absent from the written decision of the Court of Appeal, Decision of Justice Robertson, Dated June 19, 2012.
211.

Thirdly, the word (3) frivolous is in fact absent from the Decision of

Justice Robertson, Dated June 19, 2012,.

212.

Fourthly, the word (4) contemptuous, does appear in the decision at

paragraph 12, but when the Court uses the word contemptuous it is context of a description of the wording the Applicant was using to describe the conduct of the Trial Judge, which the Applicant used to reveal reasonable apprehension of bias, which supported the Applicants claims that the Court should have recused herself. [12] Mr. Murrays submissions are infused with contemptuous remarks directed at the referral judge (e.g., in her confused state of mind) and matters that have absolutely no bearing on the outcome of anything remotely related to the present litigation. For example, Mr. Murray takes offence to the fact that the referral judge defended the respondents process server who Mr. Murray had just described as unreliable, as having misled the court in the past and

75

who was guilty of obstructing justice on several occasions by providing false affidavits. Decision of Justice Robertson, Dated June 19, 2012, paragraph 12.
213.

In the above quote, the Court failed to understand the connection

between what the Applicant was asserting and its most relevant connection to the claim of the Court displaying reasonable apprehension of bias, but went ahead and provided a description , (in the Judges own words) of what the Court thought, the Applicant was expressing. That description provided by the Court is: For example, Mr. Murray takes offence to the fact that the referral judge defended the respondents process server who Mr. Murray had just described as unreliable, as having misled the court in the past and who was guilty of obstructing justice on several occasions by providing false affidavits.
214.

An unbiased Court does not argue a case for either party. A Court

should only receive argument and weighs the evidence. This above statement summarizes the Applicants position, that the Courts actions revealed reasonable apprehension of bias, by taking on the cause of the Respondent, 501376 N.B. Ltd., in that matter and arguing for their benefit against the Applicants interest. The reason the Applicant brought up the issues with service is that the Respondent 501376 N.B. Ltd., at the subject Court hearing, before Justice Clendening, made a series of unfounded, frivolous, vexations allegation against the Applicant, including the allegation that the Applicant was causing service to be unduly difficult and avoiding service. The Applicant raise the valid and relevant point that every time the Respondents claimed there were issues regarding service, service was allegedly attempted by the very same process Server, David A. Daneliuk, a process server who has a provable history of making false claims. This fact of making false claims is substantiated
76

by the Process Servers own sworn affidavits testimony, in which he acknowledges having previously provided false Affidavit statements.
215.

It is obvious that if service is unsuccessful, every time a certain process

server is used, and the Respondents keep using that same process server, the Respondent must be receiving the desired result, they are paying for.
216.

Though reasonable apprehension of bias was part of the grounds of

appeal, on the Leave to Appeal Applications, the Court ultimately found that it would not matter what the Judge did because the Appeal was Statute barred and merit to the Application for leave to Appeal, was of no real consequence.

217.

Lastly, the word (5) unmeritorious , the only paragraph in which the

word unmeritorious appears is in paragraph 10, in which the Court is speaking generally about self-represented litigants, not actually about Andre Murray specifically as a party. [10] Often, these are the cases where the opposing party has had to retain and pay legal counsel to defend unmeritorious interlocutory proceedings in circumstances where everyone knows the self-represented litigant lacks the financial resources to pay any costs award, be it large or small Decision of Justice Robertson, Dated June 19, 2012, paragraph 10.
(D) A CONCISE STATEMENT OF THE RELIEF SOUGHT BY THE PARTY (I) A complete dismissal of all the orders being sought by the 501376 N.B. Ltd. (II) Costs ordered in favor of the Applicant responding to this motion filed by 501376 N.B. Ltd..

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