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IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF NEW BRUNSWICK) BETWEEN: ANDRE MURRAY

APPLICANT APPELLANT AND: BETTY ROSE DANIELSKI RESPONDENT RESPONDENT ________________________________________________________ APPLICATION FOR LEAVE TO APPEAL ________________________________________________________ ANDRE MURRAY APPLICANT Telephone number: 1 506 472 0205 Fax number 1 506 472 0205 Address for service within New Brunswick: 31 Marshall Street Fredericton, N.B. E3A 4J8 E-mail address: andremurraynow@gmail.com RESPONDENT BETTY ROSE DANIELSKI Solicitor for RESPONDENT Betty Rose Danielski E. Thomas Christie, CHRISTIE LAW OFFICE Suite 306, 212 Queen Street, Fredericton, New Brunswick, Canada, E3B 1A8

Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

Table Of Contents
Page Notice of Application for Leave to Appeal (Form 25A) ____________________ 1 Certificate (Form 25B) _______________________________________________ 12 Formal judgments or orders and reasons of lower courts ____________________ 14 (Court of first instance) 1. Copy of Decision of Madame Justice Garnett Dated the 10th day of June 2010__ 14 (Application for leave to Appeal from Order of Justice Garnett Dated the 10th day of June 2010) 2. Copy of decision of Judge of Court of Appeal Dated August 11, 2010_______ 15 (1st Appeal Hearing) 3. Copy of Judgement Court of Appeal, Dated 13th day of January 2011 _______ 17 4. Copy of Formal Judgement Court of Appeal, Dated ______________________32 (2nd Hearing, Court of First Instance) 5. Copy of Decision of Justice Madam Justice J. L. Clendening Dated the 24th day of June 2011.___________________________________________33 6. Copy of Formal Judgement of Justice Madam Justice J. L. Clendening, Dated the 15th day of September 2011 ______________________________________41 (2nd Appeal Hearing) 7. Copy of Judgement Court of Appeal, Dated December 1, 2011_____________42 8. Copy of Formal Judgement Court of Appeal, Dated _____________________ 51

Memorandum of argument (Rule 25(1)(f)) Part I Concise overview of position with respect to issues of public importance and statement of facts ________________________ Part II Questions in issue ____________________________________

52 56

ii

Part III Statement of argument _______________________________ Part IV Submissions concerning costs (maximum one page) ________ Part V Order or orders sought_________________________________ Part VI Table of authorities __________________________________ Part VII Statutes, regulations, rules, etc. ________________________

57 71 71 72 73

Form 25A Notice of Application for Leave to Appeal IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF NEW BRUNSWICK) BETWEEN: ANDRE MURRAY APPLICANT APPELLANT AND: BETTY ROSE DANIELSKI RESPONDENT RESPONDENT TAKE NOTICE that Andre Murray hereby applies for leave to appeal to the Court, pursuant to Section 40 and 43 of the Supreme Court Act, RSC 1985, c S26 and or, Rule 25 of the Rules of the Supreme Court of Canada, SOR/2002156 for leave to appeal from the judgment of the COURT OF APPEAL OF NEW BRUNSWICK File Number 105-11-CA made December 1, 2011, and for an Order: 1. that fully reverses the effect of a COURT OF APPEAL OF NEW

BRUNSWICK decision Dated December 1, 2011;

2.

declaring that section 52.1(1)(b), of the Mechanics Lien Act

(R.S.N.B. 1973, c. M-6), has no additional criteria that which must be met, other than that which is found stipulated within the Act and as found at: 52.1(1)(b) an application has been made, to a judge of The Court of Queens Bench of New Brunswick, for an order continuing the action and a copy of the notice of application has been served on the defendant to the action,

3.

declaring that a judge of Court of Queens Bench Trial division must

grant any application made pursuant to section 52.1(1)(b) furthermore that the Court shall reasonably proceed directly to section 52.1(2), in ordering the continuance of an action, the judge may impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the action.

4.

reverse the lower Courts decision by declaring that the Applicant is

granted a Continuance of the mechanics Lien Action pursuant to section 52.1(1)(b), and therefore 52.1(2), so that the matter may finally be heard on its merits, according to the Mechanics Lien Act (R.S.N.B. 1973, c. M-6);

5.

or any further orders that the Court may deem appropriate;

and further take notice that this application for leave is made on the following grounds:

6.

The applicant challenges the contested decision on the following

Grounds: The applicant claims, first, that Court of Appeal made a manifest error of interpretation and breached fundamental principles of law in making an improper and unlawful application of the applicable principles; The applicant further claims, that Court of Appeal made a manifest error in misinterpreting the explicit and unambiguous language of mechanics lien act which alternatively must be correctly interpreted as a clear intention on the part of the Legislature to allow for extension of time (continuance) therefore Court of Appeal infringed the fundamental principles of authority, as the Court of Appeal must for that reason be consequently ultra vires. However, Acts that are

intra vires may equivalently be termed "valid" and those that are ultra vires "invalid".

7.

Upon considering the Maxim Expressio Unius Est Exclusio Alterius

(The express mention of one thing excludes all others) }, the Mechanics Lien Act (R.S.N.B. 1973, c. M-6), does not grant jurisdiction to the Courts, to make decisions which are not in accordance with the Mechanics Lien Act;

8.

The Supreme Court may make a decision which will finally put to rest

the current trend in the Courts of New Brunswick to misapprehend the interpretation of the Mechanics Lien Act (R.S.N.B. 1973, c. M-6), in particular that section of the act which requires a Lien Claimant/Plaintiff who has not set the Action down for trial within one year to therefore file with the Court an application for a Continuance of subject Action. The decisions of the Courts within the province of New Brunswick regarding the Mechanics Lien Act section 52.1(1)(a) 52.1(1)(b) and 52.1(2) have unfortunately taken a peculiar interpretation of the Act, which is unsupported by the wording or the spirit of the Act. This peculiar interpretation is evidently contrary to the intentions that which was drafted by the legislative assembly of New Brunswick, referred to as a Continuance, which reasonably provided an option for a Lien Claimant to keep an Action before the Courts alive, as may be necessary, if the Claimant was not ready to proceed to Trial within the initial one year period. A Continuance reasonably must be a legal buffer against unjust loss of Claim and or legal standing, as provided for by Mechanics Lien Act, as was most certainly anticipated and intended by the legislative assembly of New Brunswick, by the inclusion of these sections 52.1(1)(b) and 52.1(2). Only the supreme Court of Canada, at this point may finally establish the correct

interpretation of the Mechanics Lien Act, so that New Brunswick Lien Claimants, may finally be able to avail themselves of the relief which they reasonably have relied upon therefore as provided for within Mechanics Lien Act, for the Lien Claimants benefit.

9.

A Judge of The Court of Queens Bench of New Brunswick, is

designated by Mechanics Lien Act (R.S.N.B. 1973, c. M-6) section 52.1(1)(b), as the person who may, order the continuance of an Action. Pursuant to section 52.1(2), of the Act, in that capacity, and for the purpose of ordering the continuance of an action, the judge may impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the Action. For these purposes the Judge has subject matter jurisdiction over matters regarding the Act, and cannot rely on inherent jurisdiction to step outside that designated role.

10.

The Court of Queens Bench may act on its inherent jurisdiction only

when such actions do not come into conflict with any statutory provision, in this case the provisions of the Mechanics Lien Act (R.S.N.B. 1973, c. M-6) section 52.1(1)(a) 52.1(1)(b) and 52.1(2).

11.

The Court of Queens Bench Trial division, lacks jurisdiction to elect

whether or not to grant an application pursuant to of section 52.1(1)(b), of Mechanics Lien Act (R.S.N.B. 1973, c. M-6), the Court only has a discretionary decision making authority as granted within section 52.1(2) of Mechanics Lien Act (R.S.N.B. 1973, c. M-6), moreover, in ordering the continuance of an action, the judge has the discretion to impose such terms and conditions and give such directions as the judge considers appropriate for the

continuation of the action. The wording of section 52.1(1)(a) 52.1(1)(b) and 52.1(2) as found within Mechanics Lien Act, pursuant to statutory interpretation rules, namely The express mention of one thing excludes all others leads to the conclusion that the Court is compelled to the grant the Continuance pursuant to section 52.1(2) of the Act, after proper application has been filed and served pursuant to section 52.1(1)(b).

12.

The Court did error in Law by not correctly interpreting the

Mechanics Lien Act (R.S.N.B. 1973, c. M-6), to recognize that the Applicant was entitled to the subject requested Continuance, as a right, pursuant to section 52.1(2) of the Act, consequently having made proper Application pursuant to section 52.1(1)(b) of the Act. The Court of Queens Bench role in this process is to ensure that proper procedure is followed and to assist the parties judicially, so as to arrive at a just conclusion. The wording of the Act does not compel the parties to prematurely go to a trial of the Action, furthermore, potential settlement through discussion, negotiation and compromise, however, should alternatively be encouraged by the Court.

13.

This subject case is one where it obvious and therefore can easily be

demonstrated that the interests of justice would be ill-served should the Court not grant the total relief that which the Applicant is seeking, finally, establishing therefore, the correct course of Court of New Brunswick, which have gone astray, from the Spirit of the Mechanics Lien Act (R.S.N.B. 1973, c. M-6), The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13, section 17 and the intention of the proper application of Rules of Court.

14.

The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13, section

17, is reproduced bellow, as follows: 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 15. The Mechanics Lien Act (R.S.N.B. 1973, c. M-6) and every provision

thereof (pursuant to section 17, Interpretation Act) shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act.

16.

The rule which emerges from jurisprudence unequivocally recognizes

that the Court's main concern must be to see that justice is done; The Rules of Court are rules of procedure as opposed to the substantive law which defines substantial legal rights and claims. The Rules of Court are that which enables rights to be delivered and claims to be enforced. As such, a Court should interpret and apply the Rules of court to ensure, to the greatest extent possible, that there is a determination of the substantive matters in dispute between the Parties, unless the application of the Rules of Court would result in a serious prejudice or injustice. That spirit is capture by Rules of Court: Rule 1.03, 2.01, 2.02, 2.04 and 3.02.

17.

Rule 1.03(2) of the Rules of Court direct the Court that these rules shall

be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits (to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

18.

Rule 2.01 of the Rules of Court provides the Court with the express

tool to dispense with compliance with any rule (the rules of equity shall prevail).

19.

Rule 2.02 of the Rules of Court compels Courts to overlook procedural

errors and to take appropriate measures to secure the just determination of the matters in dispute between the parties ( fairness, reason and good faith)

20.

Rule 2.04 of the Rules of Court direct the Court, that in any matter of

procedure not provided for by the Rules of Court or by an Act, the court may, on motion, give directions, (to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law that which may prevent "justice" from prevailing).

21.

Rule 3.02 of the Rules of Court direct the Court on such terms as may

be just, to extend the time prescribed by an order or judgment or by the Rules of Court, (to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

22.

The Applicant will refer to and rely on the well established principle of

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

a label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile. The Courts of New Brunswick have unfortunately misplaced emphasis

23.

upon on the question of setting the matter down for trial within one year, this begs the question as to why the Learned Judge would believe that the two parties to the Action would not first require more time to seek REMEDY at DISCOVERY; consequentially, and for that reason Parties would not be required to set down for trial within the year period. On this, the matter of Court imposed criteria, not provided for in the Act, furthermore, the Learned Trial Judge erred by "picks up the mantle" thereby not allowing the Plaintiff to be heard according to his own conscience and direction.

24.

Courts of New Brunswick since 1973 appear to have been incapable of

comprehending, interpreting and applying the Mechanics Lien Act (R.S.N.B. 1973, c. M-6). Moreover, until this date, there has not been a Court ruling in New Brunswick which fully comprehends that which must reasonably have been the intention of the Legislative Assembly of New Brunswick year 1973, regarding application of Mechanics Lien Act (R.S.N.B. 1973, c. M-6) section 52.1(1)(a) 52.1(1)(b) and 52.1(2).

25.

The Courts of this Province have evidently misinterpreted section

52.1(1)(a) 52.1(1)(b) and 52.1(2) as found within Mechanics Lien Act (R.S.N.B. 1973, c. M-6). Considering that Justice Grant, who appears to be the first, recorded Court of New Brunswick to have made a ruling regarding section 52.1(1)(a) 52.1(1)(b) and 52.1(2), notably, he did actually grant the subject requested continuance (which may be the reason this decision was not overturned on appeal), but in doing so he arbitrarily (not relevant to the Act)

stated criteria that which he erroneously believed the Court should consider, when deciding whether to grant a Continuance. Unfortunately every subsequent Lien Claimant in New Brunswick, suffers this obvious misinterpretation of section 52.1(1)(a) 52.1(1)(b) and 52.1(2) of the Mechanics Lien Act, has consequently attached criteria which is not relevant to the intention and spirit of the Mechanics Lien Act, therefore the Supreme Court of Canada may overturn this impugned precedent, consequentially correcting this injustice, which every New Brunswick Lien Claimant, since Justice Grants decision, continues to suffer.

26.

Further to the issues found in the above paragraphs, neither the Court

of Queens Bench Trial Division or the Court of Appeal of New Brunswick, have been able to comprehend Mechanics Lien Act (R.S.N.B. 1973, c. M-6), and or they lack the incentive to right this obvious above mentioned erroneous practice based on an impugned precedent, as the Courts appear to continue to rely upon the erroneous position as established by the decision of Justice Grant therefore the Applicant believes only the Supreme Court of Canada may at this time remedy.

27.

The Supreme Court of Canada should grant this application, by reason

of its public importance and or the importance of any issue of law or any issue of mixed law and fact involved in the question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it;

10

Dated at Fredericton New Brunswick this 27th day of January 2012. Signed by Andre Murray ___________________________ Applicant Address for service within New Brunswick: 31 Marshall Street Fredericton, N.B. E3A 4J8 E-mail address: andremurraynow@gmail.com ORIGINAL TO: THE REGISTRAR The registrar Supreme Court of Canada 301 Wellington Street Ottawa, Ontario K1A 0J1 reception@scc-csc.gc.ca 613-995-4330 Fax: 613-996-9138

COPIES TO: RESPONDENT BETTY ROSE DANIELSKI Solicitor for RESPONDENT Betty Rose Danielski E. Thomas Christie, CHRISTIE LAW OFFICE Suite 306, 212 Queen Street, Fredericton, New Brunswick, Canada, E3B 1A8

11

Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com NOTICE TO THE RESPONDENT: A respondent may serve and file a memorandum in response to this application for leave to appeal within 30 days after service of the application. If no response is filed within that time, the Registrar will submit this application for leave to appeal to the Court for consideration pursuant to section 43 of the Supreme Court Act.

12

FORM 25B CERTIFICATE IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF NEW BRUNSWICK) BETWEEN: ANDRE MURRAY APPLICANT APPELLANT AND: BETTY ROSE DANIELSKI RESPONDENT RESPONDENT

I Andre Murray Appellant, hereby certify that: (a) there is no sealing or confidentiality order in effect in the file from a lower court or the Court and there are no documents filed which includes information that is subject to a sealing or confidentiality order or that is classified as confidential by legislation; (b there is no ban on the publication of evidence or the names or identity of a party or witness there are no documents filed which includes information that is subject to a ban, pursuant to an order or legislation; and (c) there is no, information that is subject to limitations on public access and any document filed which includes information that is subject to limitations pursuant to legislation;

13

Dated at Fredericton New Brunswick this 27th day of January 2012. Applicant __________________________ Andre Murray ORIGINAL TO: THE REGISTRAR The registrar Supreme Court of Canada 301 Wellington Street Ottawa, Ontario K1A 0J1 reception@scc-csc.gc.ca 613-995-4330 Fax: 613-996-9138

COPIES TO: RESPONDENT BETTY ROSE DANIELSKI Solicitor for RESPONDENT Betty Rose Danielski E. Thomas Christie, CHRISTIE LAW OFFICE Suite 306, 212 Queen Street, Fredericton, New Brunswick, Canada, E3B 1A8

Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

52 Part I Concise overview of position with respect to issues of public importance and statement of facts. 1. It is a matter of public importance when a provincial statue is misinterpreted by Court of

Queens Bench, as in this matter all inhabitants of New Brunswick may suffer the consequences of the misapprehension of Court of Queens Bench in its erroneous position taken which is consequentially occurring as Courts of New Brunswick unilaterally assume a jurisdiction that has not been granted to them moreover this unilateral jurisdiction grab or misappropriation is contrary to the intention of the legislative assembly of New Brunswick which drafted and issued the statues having had entirely different intentions.

2.

Mechanics Lien Claimants in New Brunswick are faced with the spectre of loosing a

Registered Lien Claim, if they do not set a Mechanics Lien Action, down for trial within one year, despite the wording of the Act clearly intending and or providing otherwise.

3.

One of roles The Supreme Court of Canada, may be is to correct persistent

misapprehension of interpretations of statutes, in this case a provincial Statute, which has deviated from the intended course as set by the Provincial Legislative Assembly of New Brunswick.

4.

It is a matter of great importance that the pubic be able to rely on the legislation of New

Brunswick being correctly interpreted by the Courts of New Brunswick thereby administered according to the intentions by which the legislature drafted then issued subject statutes; it is well established as a principle of statutory interpretation, such that the legislature does not intend to produce absurd consequences, further an interpretation may be considered absurd if it leads to ridiculous, unreasonable or inequitable consequences; if it is incompatible with other provisions or with the object of the legislative enactment. A label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile.

53 5. The precedent which appears to have started this unreasonable interpretation of the Act

is according to Mr. Justice Grant in J. K. Dineen Ltd. v. Morris Music Ltd., 2004 NBQB 43 (CanLII), 2004 NBQB 43, according to that Decision, when considering whether to Order a Continuance, the Court is directed to consider the reasons for the delay as well as whether there is any prejudice to the Defendant. However innocent the intentions of the Court may have been, in J. K. Dineen Ltd. v. Morris Music Ltd., 2004, Mr. Justice Grant decided that the Court is required to consider the reasons for the delay as well as whether there is any prejudice to the Defendant, but that consideration has been arbitrarily included in the Courts decision, because, such legislation does exist the Court is ultra vires to include those specific considerations.

6.

The proper interpretation of the Mechanics Lien Act (R.S.N.B. 1973, c. M-6) as

continues to occur in New Brunswick Courts, occurrs when a Plaintiff as a right, makes Application for a Continuance, that Continuance should be immediately granted, in granting the Continuance the Court has the limited discretion to then set the terms and conditions of the Continuance according to what would reasonable be equitable for all parties to the Action.

7.

The current provincial interpretation, through precedent, of the Mechanics Lien Act

(R.S.N.B. 1973, c. M-6), unduly requires a Lien Claimant/Plaintiff to set the Action down for trial within one year of filing the Originating Action to support the Mechanics Lien Claim, or risk loosing their claim. The decisions of the Courts within the province of New Brunswick regarding the Mechanics Lien Act section 52.1(1)(a) 52.1(1)(b) and 52.1(2) have unfortunately taken a peculiar interpretation of the Act, which is not supported by the wording or the spirit of the Act. Provision for a Continuance is that which was drafted by the legislative assembly of New Brunswick, and issued as law to provide an option for a Lien Claimant to use, therefore reasonably if the Claimant was not ready (for what ever reason) to proceed to Trial within the one year period. To qualify for a continuance one would simply have a need. Nothing more is implied. A statue drafted and issued for Application for a Continuance to reasonably provide to the benefit of the public a legal buffer against unjust loss of Claim and or loss legal standing, therefore a means to keep an action alive.

54 8. Relief was most certainly anticipated and intended by the Legislative Assembly of New

Brunswick, by the inclusion of these sections 52.1(1)(b) and 52.1(2). Only the Supreme Court of Canada, at this point may finally establish the correct interpretation of the Mechanics Lien Act (R.S.N.B. 1973, c. M-6), so that Lien Claimants of New Brunswick, may finally be able to avail themselves of the original relief, which was provided within Mechanics Lien Act (R.S.N.B. 1973, c. M-6) for the Lien Claimants benefit.

9.

The Courts of New Brunswick, through impugned precedent, which resulted from

misapprehension of the Mechanics Lien Act (R.S.N.B. 1973, c. M-6), are stripping the public of publicly available protections, which the Legislative Assembly of New Brunswick, believed were an issue of public importance enough, to draft then issue an Act, to safe guard.

10.

Mechanics Lien Act (R.S.N.B. 1973, c. M-6) was created to address the needs of the

people, with respect to real property. What greater public interest could exist within a northerly climate such as New Brunswick other than shelter which reasonably must represent the largest percentage of MECHANIC LIEN claims of course everyone must live indoors in Canada so the balance of probabilities weights in heavily as this being a matter that touch all inhabitants of New Brunswick.

11.

The reason they exist is a legislative public policy to protect contractors. More

specifically, the Legislative Assembly of New Brunswick did determine that, due to the economics of the construction business, contractors and subcontractors need greater remedy for non-payment for their work than merely the right to sue on their contracts. In particular, without the mechanics' lien, subcontractors providing either labour or materials may have no effective remedy if their general contractor isn't sufficiently financially responsible because their only contractual right is with that general contractor.

12.

Without the mechanic's lien, the contractor would have a limited number of options to

enforce payment of debts owed. Further, there is usually a long list of claimants on any failed project. To avoid the spectre of various trades, materialmen and suppliers attempting to remove the improvements they have made, and to maintain a degree of equality between the various

55 lienholders on a project, the statutory lien scheme was created. Without it, Tradesperson A may try to "race" Supplier B to the courthouse, the project site or the construction lender to obtain payment. Mechanics Lien Act (R.S.N.B. 1973, c. M-6) instead mandates strict compliance with the formalized process they create in return for the timely resolution and balancing of claims between all parties involved - both owners and lien claimants.

13.

Stare decisis, the principle that similar cases should be decided according to consistent

principled rules, so that they will reach similar results, lies at the heart of this matter before the Supreme Court. Regarding the issue of public importance, in this matter the Pubic is not able to avail themselves of the relief contemplated by the drafters of the Mechanics Lien Act (R.S.N.B. 1973, c. M-6), because of a precedent which has been set, which did render a interpretation of the Act, which limits the Lienholders ability to act in his own interest and in good time, when he is prepared. 14. Statement of facts The Applicant has twice been before a New Brunswick Court, asking for the same relief

and was denied both times. That relief being requested was a simple Continuance. The Mechanics Lien Act is worded in such a way, that if a Plaintiff requires more time than one year to prepare and file for a trial, the Plaintiff may make application for a Continuance of the Action. The process is simple enough, if you need more time, ask for it. The unfortunate reality in this province is that this simple mechanism has been taken off course, by Court decisions, and requires intervention of the Supreme Court to restore the simple mechanism.

15.

April 21, 2009, The Applicant filed a Notice of Action initiating the litigation process to

secure, a debt incurred from a contract with the Title holder of the property in question. Because of an Order of another Court, baring access to a building, which contained the Applicants evidentiary documents, critical for the Applicant to proceed to discovery, the Applicant did not have evidentiary documents necessary to proceed. Applicant then did proceed to request a Continuance of Action, which was denied. This Action has been protracted over the course of five Court hearings, it is now almost three years later, and the merit of the matter has yet to be reviewed. This matter is unjustly stuck, over a simple matter of a continuance, the consequence being, that Plaintiff will loose the $80,000 Lien upon the Property, unjustly, not through lack of

56 merit, but because of a misinterpretation of a simple section of a Statute, furthermore the Applicant will now have to pay an additional $6,500.00 in Court Costs. Part II Questions in issue What is the interpretation of the act to be regarding application for a Continuance in the

16.

Province of New Brunswick pursuant to the mechanics Lien Act of N.B.

17.

Equity of the process when self represented litigants are attempting to navigate their

way through a foreign theory while pursuing remedy.

18.

should the Court of Queens Bench, be able to add conditions for granting relief, to the

Mechanics Lien Act (R.S.N.B. 1973, c. M-6), which the Legislative Assembly of New Brunswick did not intend?

19.

Is a Court ultra vires its jurisdiction, in its role of Statutory interpretation, when the

Court oversteps the process by which courts interpret and apply legislation, instead arbitrarily created an amendment or abridgement, to statutory rights, which was not expressed by the Legislative Assembly of New Brunswick?

20.

Should the Supreme Court Make a decision correcting this unfortunate interpretation of

the Mechanics Line Act, resulting from decisions of the Courts within the province of New Brunswick regarding the Mechanics Lien Act (R.S.N.B. 1973, c. M-6) section 52.1(1)(a) 52.1(1)(b) and 52.1(2)?

21.

Should the Supreme Court Make a decision that would fully reverse the effect of

COURT OF APPEAL OF NEW BRUNSWICK decision Dated December 1, 2011 and also the Decision of Court of Queens Bench Trial Division Dated June 10, 2010 and the decision of the Court of Queens Bench Trial Division Dated October June 24, 2011, on the subject Matter?

22.

Should the Supreme Court Make a declaration that section 52.1(1)(b), of the Mechanics

Lien Act (R.S.N.B. 1973, c. M-6), has no criteria which must be met, other than that (1) an application has been made, pursuant to section 52.1(b) to a judge of Court of Queens Bench of

57 New Brunswick, for an order continuing the action and (2) a copy of the notice of application has been served on the defendant to the action?

23.

Should the Supreme Court Make a declaration, reflecting the intention of the Legislative

Assembly of New Brunswick, that the Court of Queens Bench Trial division shall, after an application has been made, pursuant to section 52.1(b), to a judge of Court of Queens Bench of New Brunswick, for an order continuing the action and a copy of the notice of application has been served on the defendant to the action, that Court shall proceed to section 52.1(2), and in ordering the continuance of an action, the judge may impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the action?

24.

Should the Supreme Court Make a decision which would reverse the lower Courts

decision and declaring that the Applicant is granted a Continuance of the mechanics Lien Action pursuant to section 52.1(2), so that the matter may finally be heard on its merits, according to the Mechanics Lien Act (R.S.N.B. 1973, c. M-6); Part III Statement of argument 25. Statutory interpretation is the process by which Courts interpret and apply legislation.

Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by The Court. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose.

26.

When examining the New Brunswick Mechanics Lien Act (R.S.N.B. 1973, c. M-6) we

can easily understand the scheme of the Act, the object of the Act, and what must reasonably have been the intention of the Legislative Assembly of New Brunswick. The Applicant will refer to and rely on the well established principle of statutory interpretation, that: the legislature does not intend to produce absurd consequences. an interpretation may be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or

58 incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment a label of absurdity may be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, the Supreme Court did comment 27 It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Ct, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88). 28. The Applicant argues that a label of absurdity must be attached to interpretations of the

27.

on a established principle of statutory interpretation, at paragraph 27 as follows:

Mechanics Lien Act (R.S.N.B. 1973, c. M-6), that, which may defeat the purpose of a statute or render some aspect of it pointless or futile, furthermore, those interpretations must be avoided. In this case, when more time is required by a Plaintiff, they must only request it and comply with the wording of the Act. To add layers of conditions to the Act, which were not already expressed, is an interpretation which may defeat the purpose of section 52.1(1)(a) 52.1(1)(b) and 52.1(2) of the Act, further render the conditions already prescribed as pointless, because the Applicants cannot avail themselves of the relief as contemplated and stated by the drafters of the Act.

29.

With respect to real property, liens pursuant to Mechanics Lien Act (R.S.N.B. 1973, c.

M-6), the reason they exist, is as a legislative public policy to protect contractors. More specifically, the Legislative Assembly of New Brunswick did determine that, due to the economics of the construction business, contractors and subcontractors need greater remedy for non-payment for their work than merely the right to sue on their contracts. In particular, without the mechanics' lien, subcontractors providing either labour or materials may have no effective remedy if their general contractor isn't sufficiently financially responsible because their only contractual right is with that general contractor.

59 30. Without the mechanic's lien, the contractor would have a limited number of options to

enforce payment of the amounts owed. Further, there is usually a long list of claimants on any failed project. To avoid the specter of various trades, materialmen and suppliers attempting to remove the improvements they have made, and to maintain a degree of equality between the various lien holders on a project, the statutory lien scheme was created. Without it, Tradesperson A may try to "race" Supplier B to the courthouse, the project site or the construction lender to obtain payment. Most lien statutes, as in this case, instead mandate strict compliance with the formalized process they create in return for the timely resolution and balancing of claims between all parties involved - both owners and lien claimants.

31.

It is unjust, that an interpretation of Mechanics Lien Act (R.S.N.B. 1973, c. M-6), now

stands, that which requires a Lien Claimant/Plaintiff to set the Action down for trial within one year of filing the Originating Action to support the Mechanics Lien Claim, or likely risk loosing his claim. The decisions of the Courts within the province of New Brunswick regarding the Mechanics Lien Act section 52.1(1)(a) 52.1(1)(b) and 52.1(2) as found within Mechanics Lien Act have unfortunately taken a peculiar interpretation of the Act, which is unsupported by the wording or the spirit of the Act; furthermore, that which was drafted by the legislative assembly of New Brunswick, was reasonably to provide an option for a Lien Claimant to use, if the Claimant was not ready to proceed to Trial within the one year period, that option was a Continuance. A Continuance is a legal buffer against unjust loss of Claim and legal standing as provide otherwise by Mechanics Lien Act, as was most certainly anticipated and intended by the legislative assembly of New Brunswick, by the inclusion of these sections 52.1(1)(b) and 52.1(2) moreover only the supreme Court of Canada, at this point may finally establish the correct interpretation of the Mechanics Lien Act, so that Lien Claimants, may finally be able to avail themselves of the relief which was provided within Mechanics Lien Act for the Lien Claimants benefit.

32.

Upon considering the Maxim Expressio Unius Est Exclusio Alterius (The express

mention of one thing excludes all others) }, the Mechanics Lien Act (R.S.N.B. 1973, c. M-6), does not grant jurisdiction to the Courts, to make decisions which are not in accordance with the Mechanics Lien Act;

60

33.

A Judge of The Court of Queens Bench of New Brunswick, is designated by

Mechanics Lien Act (R.S.N.B. 1973, c. M-6) section 52.1(1)(b), as the person who may carry out, ordering the continuance of an Action. Pursuant to section 52.1(2), of the Act, in that capacity, and for the purpose of ordering the continuance of an action, the judge may impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the Action. For these purposes the Judge has subject matter jurisdiction over matters regarding the Act, and cannot rely on inherent jurisdiction to step outside that designated role. The question arises, what role does a Judge of The Court of Queens Bench of New Brunswick, have in relation to Mechanics Lien Act. In R. v. Caron, 2011 SCC 5, [2011] 1 SCR 78, The Supreme Court did answer that question, in the header of that decision: Indeed, the superior court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. The fundamental purpose (and limit) on judicial intervention is to do only what is essential to avoid a serious injustice. 34. The Court of Queens Bench may act on its inherent jurisdiction only when those

actions do not come into conflict with any statutory provision, in this case the provisions of the Mechanics Lien Act (R.S.N.B. 1973, c. M-6) section 52.1(1)(a) 52.1(1)(b) and 52.1(2).

35.

Courts of New Brunswick since 1973 appear to have been incapable of comprehending,

interpreting and applying the Mechanics Lien Act (R.S.N.B. 1973, c. M-6). Until this date, there has not been a Court ruling which fully comprehends that which must reasonably have been the intention of the Legislative Assembly of New Brunswick year 1973, regarding application of Mechanics Lien Act section 52.1(1)(a) 52.1(1)(b) and 52.1(2) as provide below: 52.1(1) An action to enforce a lien shall be deemed to be discontinued one year after the action is commenced unless (a) the action has been set down for trial, or (b) an application has been made to a judge of The Court of Queens Bench of New Brunswick for an order continuing the action and a copy of the notice of application has been served on the defendant to the action.

61 52.1(2) In ordering the continuance of an action, the judge may impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the action. 36. The Courts of this Province have misinterpreted section 52.1(1)(a) 52.1(1)(b) and

52.1(2) as found within Mechanics Lien Act (R.S.N.B. 1973, c. M-6). Considering that Justice Grant, who appear to be the first, recorded Court of New Brunswick to have made a ruling regarding section 52.1(1)(a) 52.1(1)(b) and 52.1(2), notably, he did actually grant the subject requested continuance (which may be the reason this decision was not overturned on appeal), but in doing so he arbitrarily (not relevant to the Act) stated criteria that the Court should consider, when deciding whether to grant a Continuance. Unfortunately for every Lien Claimant in New Brunswick, now there is a tradition of continuing on with this obvious misapplication of section 52.1(1)(a) 52.1(1)(b) and 52.1(2) as found within the Mechanics Lien Act, which has attached to it, criteria which is not relevant to the intention and spirit of the Mechanics Lien Act, most importantly only the Supreme Court of Canada may overturn this precedent and right this injustice that every Lien Claimant, has since Justice Grants decision, had to endure.

37.

The Court of Queens Bench Trial division, lacks jurisdiction to elect whether or not to

grant the application. The Court only has a discretionary decision regarding application of section 52.1(2) as found within Mechanics Lien Act (R.S.N.B. 1973, c. M-6), furthermore, in ordering the continuance of an action, the judge has the discretion to impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the action. The wording of section 52.1(1)(a) 52.1(1)(b) and 52.1(2) as found within Mechanics Lien Act, pursuant to statutory interpretation rules, namely The express mention of one thing excludes all others leads to the conclusion that the Court is compelled to the grant the Continuance pursuant to section 52.1(2) of the Act, after proper application has been filed and served pursuant to section 52.1(1)(b).

38.

The Court did error in Law by not correctly interpreting the Mechanics Lien Act

(R.S.N.B. 1973, c. M-6), to recognize that the Applicant was entitled to the subject Continuance, as a right, pursuant to section 52.1(2) of the Act, following proper Application pursuant to section 52.1(1)(b) of the Act. The Courts role in this process is to ensure that proper procedure is

62 followed and to assist the parties judicially, so as to arrive at a just conclusion. The wording of the Act does not compel the parties to jump into a trial of the Action, furthermore, settlement through discussion, negotiation and compromise should be encouraged by the Court.

39.

This subject case, is one where it obvious and easily shown, that the interests of justice

would be ill-served by a less drastic measure, other than granting the total relief that Applicant is seeking, consequentially, setting right, the Course of the Courts of New Brunswick, which have gone astray, form the Spirit of the Mechanics Lien Act (R.S.N.B. 1973, c. M-6), New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13, section 17 and the intention of the proper application of Rules of Court.

40.

The New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13, section 17, is 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision.

reproduced bellow, as follows:

41.

The Mechanics Lien Act (R.S.N.B. 1973, c. M-6) and every provision thereof

(pursuant to section 17, Interpretation Act) shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act.

42.

The rule which emerges from jurisprudence unequivocally recognizes that the Court's

main concern must be to see that justice is done; The Rules of Court are rules of procedure as opposed to the substantive law which defines substantial legal rights and claims. The Rules of Court are that which enables rights to be delivered and claims to be enforced. As such, a Court should interpret and apply the Rules of court to ensure, to the greatest extent possible, that there is a determination of the substantive matters in dispute between the Parties, unless the application of the Rules of Court would result in a serious prejudice or injustice. That spirit is capture by New Brunswick Rules of Court: Rule 1.03, 2.01, 2.02, 2.04 and 3.02.

63 43. Rule 1.03(2) of the Rules of Court direct the Court that these rules shall be liberally

construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits (to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

44.

Rule 2.01 of the Rules of Court provides the Court with the express tool to dispense

with compliance with any rule (the rules of equity shall prevail).

45.

Rule 2.02 of the Rules of Court compels Courts to overlook procedural errors and to

take appropriate measures to secure the just determination of the matters in dispute between the parties ( fairness, reason and good faith)

46.

Rule 2.04 of the Rules of Court direct the Court, that in any matter of procedure not

provided for by the Rules of Court or by an Act, the court may, on motion, give directions.(to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

47.

Rule 3.02 of the Rules of Court direct the Court on such terms as may be just, to extend

the time prescribed by an order or judgment or by the Rules of Court.(to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

48.

The Applicant will refer to and rely on the well established principle of statutory

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

64 49. The Courts of New Brunswick unfortunately appear content to misplace emphasis,

therefore unilaterally prioritising setting the matter down for trial within one year, this begs thel question as to why the learned trial judge would not believe that the two parties to the Action would not rather have more time to seek REMEDY at DISCOVERY potentially eliminating the need for trial altogether; consequentially, and for that reason Parties would not be required to set down for trial within the year period. Inherent Jurisdiction 50. The doctrine of inherent jurisdiction operates to ensure that there will always be a court of law which will have authority to vindicate a legal right independent of any statutory grant. The Court that which benefits from the inherent jurisdiction is the Court of general jurisdiction, namely, the Provincial Superior Court. The legitimate proposition that the institutional and constitutional position of Provincial Superior Courts warrants the grant to them of a residual jurisdiction over all Provincial matters where there is gap in statutory grants of jurisdiction. In this case regarding the Mechanics Lien Act, we do not read or find jurisdictional gaps, jurisdiction to resolve Lien matters is explicit.

51.

The New Brunswick Mechanics Lien Act clearly confirms Court of Queens Bench

Trial division, lacks discretion as to whether or not to grant the subject application for Continuance of a Action pursuant to section 52.1(1) , the Court only finds discretionary on application of section 52.1(2) as found within Mechanics Lien Act (R.S.N.B. 1973, c. M-6), moreover, Court of Queens Bench in granting the application for a Continuance of an Action, only thereafter may the judge as provided by 52.1(2) obtain discretionary to impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the action. The Applicant relies upon the wording of section 52.1(1)(a) 52.1(1)(b) and 52.1(2) as found within Mechanics Lien Act, further as pursuant to statutory interpretation rules, The express mention of one thing excludes all others namely, this reasonably leads the Applicant to the conclusion that any Court hearing the subject Application is compelled to grant a Continuance pursuant to section 52.1(2) of the Act, after proper application has been filed and served pursuant to section 52.1(1)(b).

65 52. The question must be posed, what role does a Judge of The Court of Queens Bench of

New Brunswick, have in relation to Mechanics Lien Act. In R. v. Caron, 2011 SCC 5, [2011] 1 SCR 78, we find the answer in the header of that decision as the precise words are excerpted and provided below: Indeed, the superior court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. The fundamental purpose (and limit) on judicial intervention is to do only what is essential to avoid a serious injustice. 53. Black's Law Dictionary (8th ed. 2004), at Page 996 provide the definition for Contravene, vb.1. To violate or infringe; to defy 2. To come into conflict with; to be contrary to 54. The Court of Queens Bench may act on its inherent jurisdiction only when those

CONTRAVENE as follows:

actions do not come into conflict with any statutory provision, in this case the provisions of the Mechanics Lien Act. 55. In ONTARIO (ATTORNEY GENERAL) v. PEMBINA EXPLORATION CANADA LTD., [1989] 1 SCR 206 at paragraph 22 this Court did cite as follows: And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged. 56. When the Court unilaterally assumed discretionary jurisdiction regarding granting a

Continuance, as occurred in this matter, which can be seen to be contrary to the intention of the legislature created therefore, which was drafted and issued as an Act, consequentally the jurisdiction of the Court was ultra vires. A Superior Court is assumed to have jurisdiction unless their jurisdiction is clearly restricted, such as in this case, where the provincial legislature, through the Mechanics Lien Act, has clearly limited that Jurisdiction. This was brought to the attention of the Court of Appeal as a fact, however, the Court of Appeal did not address this very germane issue. The expression of one thing is the exclusion of the other.

66 57. When relief is requested from a Judge of The Court of Queens Bench, that Judge must

act according to and pursuant to the vehicle by which those rights are being acted upon. In this case that vehicle is the Mechanics Lien Act (R.S.N.B. 1973, c. M-6), and more specifically as in this case, a Continuance, pursuant to section 52.1(1)(a) 52.1(1)(b) and 52.1(2). The Mechanics Lien Act clearly states what the Judge may do and how. The clear statutory expression of how a judge may act, is therefore the exclusion of any other way not for that purpose prescribed.

58.

Where legislation and case law are in conflict, there is a presumption that legislation

takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute. In Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). U.S. Supreme Court did state as follows: "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254. 59. In Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929) the

Supreme Court of Virginia did state: "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." 60. In Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996) the "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage."; 61. It is now well established that the words of an Act are to be read in their entire context

Supreme Court of Alaska:

and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, quoting E. A. Driedger,

67 Construction of Statutes (2nd ed. 1983), at p. 87; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.

62.

In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, in the header of the decision as

well as paragraph 21, this Court did write as follows: At the heart of this conflict is an issue of statutory interpretation. Although the plain language of ss. 40 and 40a of the ESA suggests that termination pay and severance pay are payable only when the employer terminates the employment, statutory interpretation cannot be founded on the wording of the legislation alone. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Moreover, s. 10 of Ontarios Interpretation Act provides that every Act shall be deemed to be remedial and directs that every Act shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit. Although much has been written about the interpretation of legislation (see, 21 e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter Construction of Statutes); PierreAndr Ct, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 63. An analysis of the principles in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837

(SCC), can also be buttressed by the maxim expressio unius est exclusio alterius. Mechanics Lien Act (R.S.N.B. 1973, c. M-6) clearly defines the role of a judge of Court of Queens Bench of New Brunswick, in relation to matters governed by section 52.1(1)(a) 52.1(1)(b) and 52.1(2) as found within Mechanics Lien Act therefore regulates the jurisdiction of a Judge of Court of Queens Bench of New Brunswick. If the wording of the subject sections within the Mechanics Lien Act (R.S.N.B. 1973, c. M-6), intended that a Judge of Court of Queens Bench of New Brunswick shall have unlimited jurisdiction therefore already granted by Section 9(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, then there would have been no need to include

68 conditions on how a judge of The Court of Queens Bench of New Brunswick has jurisdiction to act and in what capacity, which has the effect of excluding while limiting the granted jurisdiction of the Court as per the maxim expressio unius est exclusio alterius. Black's Law Dictionary (8th ed. 2004) APPENDIX B, at Page 5294 provide the following excerpt: Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. Also termed Inclusio unius est exclusio alterius or enumeratio unius est exclusio alteriu. 64. The subject section of the Judicature Act, R.S.N.B. 1973, c. J-2, which designates the 9(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely: (a) all causes and matters, civil and criminal, that were within the exclusive cognizance of the Supreme Court in the exercise of its original common law jurisdiction, before the commencement of the Judicature Act, 1909; (b) all causes and matters that prior to July 1, 1966, were assigned to or cognizable by the Chancery Division; (c) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the County Court of New Brunswick; and (d) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the Queens Bench Division of the Supreme Court. 65. In Jones v. A.G. of New Brunswick, [1975] 2 SCR 182 this Court did make reference to

jurisdiction of the Court of Queens Bench is reproduced below as follows:

Expressio unius est exclusio alterius at page 196 as follows: [Page 196] Lord Dunedins statement in Whiteman v. Sadler[5], at p. 527 (which the appellant invoked) that it seems to me that express enactment shuts the door to further implication. Expressio unius est exclusio alterius is a conclusion upon his construction of a particular section of a statute. 66. The expressio unius doctrine is also an important principle in the construction of

statutes. In her book on the topic, jurist Ruth Sullivan wrote Sullivan, R., Driedger on the Construction of Statutes, 3rd Ed. (Toronto: Butterworths, 1994), page 168:

69 "One of the so-called maxims of statutory interpretation is expressio unius est exclusio alterius: to express one thing is to exclude another. "The maxim reflects a form of reasoning that is widespread and important in interpretation .... the a contrario argument ... negative implication ..implied exclusion ... "An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislatures failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied." 67. In Dorval v. Dorval, 2006 SKCA 21 (CanLII) Justice CAMERON J.A. at paragraph 10

through to an including paragraph 15, made comment on application of the expressio unius principle of construction, as follows: [10] The suggestion is grounded in the guide to statutory interpretation known as expressio unius est exclusio alterius: to express one thing is to exclude another. [11] As explained in Sullivan and Driedger on the Construction of Statutes, 4th ed. by Ruth Sullivan (Markham: Butterworths Canada Ltd., 2002): An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislatures failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature. [at pp.186-87] [12] With this in mind, the express reference to the thing in issue in this case (the power to make interim orders) in each of sections 15 and 16 of the Act, may fairly be said to give rise to an expectation of express reference in section 17. This is so because the latter fails to follow the pattern of expression of the former. And what this suggests is that Parliament implicitly intended to exclude the power to make interim orders when enacting section 17. [15] In the light of considerations such as these, Ct, goes on to observe at p. 339: Since it is only a guide to the legislatures intent, a contrario reasoning should certainly be set aside if other indications reveal that its consequences go against the statutes purpose, are manifestly absurd, or lead to incoherence and injustice. [footnotes omitted].

70 68. In Rodaro v Royal Bank of Canada 2000 OJ 272, The Court, at paragraph 856, defined "... a maxim of interpretation meaning that the expression of one thing is the exclusion of the other. When certain persons or things are specified in a law, contract or will, an intention to exclude all others from its operation may be inferred. In this case, the reference to the assignment to a financial institution excludes assignment to any other entity." 69. In Transpacific Tours Ltd. v. Director of Investigation & Research, 1985 CanLII 107

the Latin maxim expressio unius est exclusio alterius as follows:

(BC SC) Justice Lysyk J did comment on the expressio unius principle of construction as follows: The reasons of the majority of the Supreme Court of Canada in Curr, speaking through Laskin J., nevertheless command careful attention. Firstly, the analysis in the abovequoted paragraphs from Curr does not turn on the meaning of a single word or phrase, but on a principle of construction. It relates to the structure, as opposed to the lexicon, of the enactment. The principle is encapsulated in the maxim expressio unius est exclusio alterius: the express mention of one or more things of a particular class may be regarded as impliedly excluding others. 70. Applicant Andre Murray believes that the above mentioned principles of statutory

interpretation are persuasive, especially when considering, that when certain things are specified in a law, an intention to exclude all others from its operation may be inferred.

71.

Applicant submits, that because of the Maxim Expressio Unius Est Exclusio Alterius

(The express mention of one thing excludes all others) }, the Court of Queens Bench did error in law and consequentially should not have rendered a decision, which made requirement upon the Plaintiff, which were not expressed in the Act,

72.

Neither the lower Courts of Queens Bench Trial Division or the Court of Appeal of

New Brunswick, have been able to comprehend Mechanics Lien Act (R.S.N.B. 1973, c. M-6), or they lack the jurisdiction, to right this obvious wrong precedent, a relief that only the Supreme Court of Canada may at this time fulfill.

73.

The Supreme Court of Canada should grant this application, by reason of its public

importance or the importance of any issue of law or any issue of mixed law and fact involved in

71 the question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it; Part IV 74. Costs on Application for Leave to Appeal in favour of the Applicant. Part V Order or orders sought 1. That the Supreme Court grants the Applicant, leave to appeal to the Supreme Court of Canada. 2. Costs on Application for Leave to Appeal in favour of the Applicant.

______________________ Applicant Andre Murray

72 Part VI Table of authorities Alphabetical Paragraph 1. Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; _______________________ 61 2. Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992); _________ 58 3. Dorval v. Dorval, 2006 SKCA 21 (CanLII) Justice CAMERON J.A.;_______ 67 4. J. K. Dineen Ltd. v. Morris Music Ltd., 2004 NBQB 43 (CanLII), 2004 NBQB 43;_________________________________________________ 5 5. Jones v. A.G. of New Brunswick, [1975] 2 SCR 182; ___________________ 65 6. Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996);__________________________________________________ 60 7. ONTARIO (ATTORNEY GENERAL) v. PEMBINA EXPLORATION CANADA LTD., [1989] 1 SCR 206;________________________________ 55 8. on the Construction of Statutes, 3rd Ed. (Toronto: Butterworths, 1994);____ 66 9. Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929);__________ 59 10. Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27; _________________27, 61, 62, 63 11. R. v. Caron, 2011 SCC 5, [2011] 1 SCR 78,; __________________________33, 54 12. Rodaro v Royal Bank of Canada 2000 OJ 272;_________________________ 68 13. Transpacific Tours Ltd. v. Director of Investigation & Research, 1985 CanLII 107 (BC SC); ________________________________________ 69

73 Part VII Legislation Judicature Act, R.S.N.B. 1973, c. J-2 Loi sur lorganisation judiciaire (L.R.N.B. 1973, ch. J-2) 9(1)Nonobstant les dispositions de la prsente loi, dune autre loi ou des Rgles de procdure, la Division de premire instance possde et exerce sa comptence gnrale et de premire instance dans toutes les causes et questions notamment dans les domaines suivants, savoir : a)dans toutes les causes et questions civiles et criminelles qui taient du ressort exclusif de la Cour suprme dans lexercice de sa comptence de common law en premire instance avant la date dentre en vigueur de la loi intitule The Judicature Act, 1909 ; b)dans toutes les causes et questions qui, avant le 1er juillet 1966, taient attribues la Division de la Chancellerie ou relevaient de sa comptence, c)dans toutes les causes et questions qui, avant le 4 septembre 1979, taient du ressort de la Cour de comt du NouveauBrunswick; et d)dans toutes les causes et questions qui, avant le 4 septembre 1979, taient du ressort de la Division du Banc de la Reine de la Cour suprme.

9(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court, the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely: (a) all causes and matters, civil and criminal, that were within the exclusive cognizance of the Supreme Court in the exercise of its original common law jurisdiction, before the commencement of the Judicature Act, 1909; (b) all causes and matters that prior to July 1, 1966, were assigned to or cognizable by the Chancery Division; (c) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the County Court of New Brunswick; and (d) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the Queens Bench Division of the Supreme Court.

New Brunswick Interpretation Act, R.S.N.B. 1973, c. I-13 17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision.

Loi dinterprtation (L.R.N.-B. 1973, ch. I-13) 17 Toute loi, tout rglement et toute disposition de ceux-ci sont rputs rparateurs et doivent faire lobjet de linterprtation large, juste et librale, la plus propre assurer la ralisation de leurs objets.

74

Mechanics Lien Act 52.1(1) An action to enforce a lien shall be deemed to be discontinued one year after the action is commenced unless (a) the action has been set down for trial, or (b) an application has been made to a judge of The Court of Queens Bench of New Brunswick for an order continuing the action and a copy of the notice of application has been served on the defendant to the action. 52.1(2) In ordering the continuance of an action, the judge may impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the action.

Loi sur le privilge des constructeurs et des fournisseurs de matriaux 52.1(1) Une action visant lexercice dun privilge est rpute tre abandonne un an aprs son introduction, sauf si a) laction a t mise au rle, ou b) une requte a t prsente un juge de la Cour du Banc de la Reine du Nouveau-Brunswick pour obtenir une ordonnance de reprise de laction et si une copie de lavis de la requte a t signifie au dfendeur laction. 52.1(2) En rendant lordonnance de reprise dune action, le juge peut imposer les conditions et donner les instructions quil estime justes pour la reprise de laction.

Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another

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