October 24, 2012, Pre-Hearing Brief on Motion for Stay of Proceedings. Court of Appeal File Number 132-12-CA. Notice of Appeal to the COURT OF APPEAL OF NEW BRUNSWICK

7/30/2019 October 24, 2012, Pre-Hearing Brief on Motion for Stay of Proceedings. Court of Appeal File Number 132-12-CA. N

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Court of Appeal File Number: 132-12-CA

(Court File Number: FC4511)

IN THE COURT OF APPEAL OF NEW BRUNSWICK

BETWEEN:

ANDRE MURRAY

APPELLANT (Plaintiff)-and-

THE CITY OF FREDERICTON,

and others

RESPONDENTS (Defendants)

Pre Hearing brief on MOTIONFiled by Self Represented APPEALLANT ANDRE MURRAY

Scheduled to be heard October 29, 10:00 AM

ANDRE MURRAY

Self Represented Appellant103 Huntingdon Circle

Fredericton New Brunswick

E3B 0M1

E-mail address:

[email protected]

Leanne Murray Solicitor for

Respondents:

The City of Fredericton,

Fredericton Police Force.

Chief of PoliceBarryMacKnight,

Sergeant Myers,

Constable Mike Fox,

Constable Patrick Small,

Constable Nancy Rideout,

Constable Debbie Stafford,

Constable Michael SaundersLeanne MurrayAssociate of McInnes Cooper

Barker House, Suite 600

570 Queen StreetPO Box 610 Fredericton NB

E3B 5A6

tel +1 (506) 458 1624fax +1 (506) 458 9903

mobile +1 (506) 470 6696


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Pre-Hearing Brief INDEX

Pre-Hearing Brief

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,

INTRODUCTION _____________________________________________ 2

(C) a concise statement of the principles of law on which the party relies and _2

citation of relevant statutory provisions and leading authorities,

Stay of Proceeding ___________________________________________ 6

Rule 61.16 Stay of Enforcement and Rule 62.26 Stay of Proceedings. ___ 6

(1) They must show there is a serious issue to be tried which issimilar to prima facie evidence that there was merit to the appeal; _____ 10

(2) They must prove they will suffer irreparable harm if the

injunction is not granted;_____________________________________ 16

(3) They must prove that the balance of convenience favors the

granting of the injunction.______________________________________20

Conclusion __________________________________________________23

(D) a concise statement of the relief sought by the party.________________ 25


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(A)

A succinct outline of the facts the party intends to establish,

1. Court file FC-45-11decision of Madame Justice Judy L. Clendening

sitting at the Court of Queens Bench, Trial Division, Fredericton New

Brunswick, on the 10th, day of September 2012, the lower Court Judge did

issue an impugned Order (subject of this relevant Appeal File Number 132-12-

CA)

2. Extortion thereafter the issue of herein above mentioned impugned

Order (subject of this relevant Appeal File Number 132-12-CA)

Intended consequences would be that should the Appellant not pay $5000.00

Order for security of cost within the time specified (by October 10, 2012), the

Appellant would be deemed to have abandoned a most important appeal (file

number 72-12-CA).

3. Ultimately the Appellant did not pay the subject surety Costs as Orderedin the herein mentioned subject September 10, 2012 impugned Order (under

Appeal Court file number 132-12-CA) and instead filed an appeal (Court file

number 132-12-CA) of that matter of the impugned Decision.

4. This subject September 10, 2012, decision of Madame Justice Judy L.

Clendening should be considered a final Order, because it does technically,

finally, though prematurely decide the rights of the parties in finality.

5. Appellant will suffer irreparable harm if the herewithin requested Stay is

not granted; without a Stay of this matter, the impugned Order of the lower


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Court for security of cost will be deemed effected and the pending Appeal

Court file number 72-12-CA will be deemed abandoned, without ever being

considered on it merits.

6. If the herewithin requested stay is not granted, the subject impugned

Orders are deemed acted upon, consequentially both Appeal, File Number 72-

12-CA and File Number 132-12-CA will be deemed Moot.

7. This Motion for Stay of Proceedings was Filed with Court of Appeal prior

to the stipulated time deadline found within the Order of subject September 10,

2012, decision of Madame Justice Judy L. Clendening.

(B)

A concise statement of the issues to be dealt with by the Court of Appeal,

INTRODUCTION

Granting a stay of proceeding is similar to granting of an injunction

8. Appellant will show there are serious issues which have been erroneously

tried with findings which result as unfair; these erroneous findings are notcommon in law and must now be corrected by this honourable Court of appeal.

These are serious issues at law which must finally be resolved; the lower Court

Judge did make an impugned Order (subject of this relevant Appeal File

Number 132-12-CA) the consequence, being prejudice against the Appellant

should Appellant not pay the Surety Order for security of cost within the

limited time specified (October 10, 2012), the Appellant would be deemed to

have abandoned a most important appeal (file number 72-12-CA). These

herewithin mentioned issues are appropriate and serious issues for the

honorable Court of Appeal to consider and ultimately decide the merit thereof;

unless this matter is frivolous, vexatious, or the constitutionality of a statute is a


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pure question of law, a judge on a motion for relief must, as a general rule,

consider the second and third stages of the Metropolitan Stores test.

9. Notice Appellant will suffer irreparable harm if the herewithin requested

stay is not granted; however without a stay, the impugned Order of the lower

Court for security of cost will be deemed effected and the pending Appeal

Court file number 72-12-CA will be deemed abandoned, without ever being

considered on it merits. Appellant will suffer irreparable harm if this limited,

time-sensitive opportunity, expires, in which the Appellant may act. Not only

will the Appellant suffer irreparable harm if the herewithin requested stay is not

granted, but if the subject impugned Orders are deemed acted upon, both

Appeal, File Number 72-12-CA and File Number 132-12-CA will be deemed

Moot. Furthermore, the effects upon the public perception of Appeal Court not

granting the requested stay would be irreparable prejudice to the perceived

integrity of the judicial system of New Brunswick.

10. Appellant will prove that the balance of convenience favors granting of

the subject Stay. The Appellant further believes it is critical in the interest of

Justice, as in this case, that the Appellant must be heard,Audi alterampartem

hear the other side for this purpose the Appellant must be allowed to provide

argument on both herewithin subject Appeals. Considering the relevant matters,

absence of the herein requested Stay would be fatal to the Appellants cause,

resulting in a miscarriage of justice. In addition to consideration for balance of

convenience and or potential damage suffered by each party, nevertheless the

interest of the public must be taken into account. When the nature and declared

purpose of legislation is to promote the public interest, a Motions Court should

not be concerned whether the legislation actually has such an effect. It must be


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assumed to do so. In this case the Rules of Court, should be applied in such a

fashion as to promote the public interest.

11. This matter before this Court, is a clear case justifying a stay against the

enforcement of the impugned Order, on grounds of miscarriage of justice. The

effects of not granting the Stay, inter alia, being the loss of two important

Appeals, filed by the Appellant, File Number 72-12-CA and File Number 132-

12-CA. It would be a miscarriage of Justice to allow the Sharp practice as

observed therein (contrary to the NB Solicitors Code of Professional Conduct),

a procedural tactic employed by the Solicitor for the Respondents, to cause a

self-represented litigant to lose his day in Court. The Appellant did not pay

Costs as specified in the impugned Oder (under Appeal Court file number 132-

12-CA) and instead filed an appeal of that matter of the impugned Decision.

This decision should be considered a final Order, because it does technically,

finally, though prematurely decide the rights of the parties. It is most

noteworthy that this matter has yet to be heard on the meritorious substantive

material submissions found in the Court File on this matter.

12. There is no onus on an Applicant when requesting a Stay to show that

granting of the subject Stay of the subject impugned Order forwards the public

interest. As a general rule, all an applicant need show is that the public interest

is not hurt by the order. The Appellant asserts that not only his own private

interest, but also the public interest, will be hurt by the refusal of a stay. Public

confidence in the Justice system, in these circumstances will be shaken by the

refusal of such an Order for a Stay.


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13. A Stay properly exercised will preserve and or restore the status quo. The

granting of a Stay will not give the Appellant his remedy; only preserve the

parties standing until the Appeal issues are finally resolved. In this case, since

the alleged remedy the Respondents are seeking is so closely tied to the pending

Appeals, the Stay would only stay the premature unjust remedy that the

Respondents are seeking. If successful on appeal, the subject premature

impugned Cost Order will not be warranted. It is only Just that the appellant

have the opportunity to have the two Appeals heard on the merits, without these

subject questionable Court manoeuvring tactics of demanding Surety

standing in the way of Justice and the Publics right to access the Courts.

14. A judicial Stay of proceedings has been recognized as being an

extraordinary remedy that should only be granted in the "clearest of cases".

Stay of proceedings is appropriate in circumstances, where prejudice to the

applicants right to make full answer and defence cannot be remedied (such as

in this case) or where irreparable prejudice such as harmed public perception of

the integrity of the Judicial system, if the application of the subject impugned

Orders were continued and stay not granted to the victim Applicant. These two

factors are alternatives. The presence of either one justifies the exercise of

discretion in favour of a stay

15. This Court should Order that the Court file FC-45-11decision of Madame

Justice Judy L. Clendening presiding at the Court of Queens Bench, Trial

Division, Fredericton New Brunswick on the 10th, day of September 2012,

shall not be enforced and the subject Order should be declared Stayed. This is

because the effect of not granting this requested Stay, will be to cause the

Appellant to loose the right to have the same impugned decision reviewed on


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Appeal, (Court file 132-12-CA) by a Court of Competent Jurisdiction, on a

minor technicality, not going to the merits of the case. Further, the consequence

of not granting the herein requested Stay will be that the Appellant will lose a

another pending Appeal (Court file 72-12-CA), consequentially (because it will

be deemed abandoned) and lastly if the impugned Order is acted upon without

the subject Stay being granted, this would cause irreparable prejudice to the

integrity of the judicial system of New Brunswick;

(C)

A concise statement of the principles of law on

which the party relies and citation of relevant statutory

provisions and leading authorities,

Stay of Proceeding16. The relative Rules of Court to be considered are as follows:

61.16 Stay of Enforcement

The court may stay proceedings to enforce a judgment upon such termsas may be just if it is satisfied that(a) events occurring after the judgment or other special circumstancesrender it inexpedient to enforce thejudgment,(b) the judgment debtor is for any reason unable to pay moneyrecoverable under a judgment, or(c) for any other just cause.

62.26 Stay of Proceedings

(1) Unless ordered otherwise, an appeal does not(a) operate as a stay of execution or of proceedings under the decision ororder appealed from, or(b) invalidate any intermediate act or proceeding.(2) A motion for a stay of execution or a stay of proceedings may bemade before the judge appealed from, the Court of Appeal or a judge ofthe Court of Appeal.(3) On a motion for a stay of execution or a stay of proceedings, theCourt of Appeal or judge may(a) if a question arose at the trial or hearing which is appropriate forsubmission to the Court of Appeal, grant a stay,


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(b) if a stay of execution or a stay of proceedings may cause therespondent to lose the benefits of the verdict or judgment, impose terms

to secure the respondents interests, and(c) impose any other terms necessary to prevent prejudice to therespondent.

17. Since the test for Rules of Court Rule 61.16 and Rule 62.26 are so

similar Appelant will argue both simultaneously to remain brief, in the

following g arguments:

18. In Dunphy's Poultry Farm v. Merrithew, 2004 NBCA 25the Court did

reiterate, the view that Rule 61.16 and that to obtain a stay, the applicant must

satisfy the Court that there is a strong prima facie case and that if the stay is not

granted the applicant would suffer irreparable harm.

[5] We are also of the view that Rule 61.16, whichprovides for the stay of enforcement of a judgment, applies to a decisionof the Court of Queens Bench and not to a decision of this Court. Wewould note that court is defined in rule 1.04 as meaning the Court ofQueens Bench. Rules specifically relating to this Court refer to theCourt of Appeal (see generally, rules 62 and 63).

[10] Having concluded that we have jurisdiction, weare of the opinion that we should apply ruleswhich have been developed when a stay ofexecution or of proceedings is sought pending anappeal to this Court.

To obtain such a stay the applicant must satisfythe Court that there is a strong prima facie caseand that if the stay is not granted the applicantwould suffer irreparable harm. See United Food

and Commercial Workers, Local 1288P v. Brownet al.reflex, (1985), 69 N.B.R. (2d) 405. It wouldperhaps be presumptuous of us to categorize thestrength of Mr. Natte's leave application. In thiscase we do not have to do so because we are not


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persuaded that Mr. Natte would suffer irreparableharm if the stay is not granted.

19. In R.W. v. H.W., 1995 CanLII 7449 (NB CA), http://canlii.ca/t/225fp

Justice Michel Bastarache, J.A. reviewed Rule 62.26, from page to

through to and including page 5 as follows:

The application is made pursuant to Rule 62.26(3), which states:

(3) On a motion for a stay of execution or a stay of proceedings,the Court of Appeal may

(a) if a question arose at the trial or hearing which isappropriate for submission to the Court of Appeal, granta stay,

(b) if a stay of execution or a stay of proceedings maycause a respondent to lose the benefits of the verdict or

judgment, impose terms to secure the respondentsinterests, and

(c) impose any other terms necessary to prevent prejudiceto the respondent.

This Rule has been considered by this Court in Van Rheeden v.

Nattereflex, (1991), 104 N.B.R. (2d) 101, where it was held that a staywould be granted only where there was prima

[Page 3]

facie evidence that there was merit to the appeal, and that irreparableharm would be caused to the applicant if the Order was refused.There is a convenience test to be applied in these matters, but agreater weight must be given to the fact that adjudication has alreadyoccurred and is regarded prima facie as correct.The "palpable error"test is not easily defined. In the context of interim injunctions, the

Supreme Court of Canada considered that it was important to considerwhether some facts remained in dispute:


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The "irreparable harm" test was not defined in the Van Rheeden case.We nevertheless have some guidance from the Supreme Court of

Canada in the recent decision of R.J.R. Nabisco - MacDonald Inc.v.Canada (Attorney General) et al,

[Page 5]

1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 where Sopinka and CoreyJJ., speaking for the Court, said at p.341:

"Irreparable" refers to the nature of the harm suffered rather thanits magnitude. It is harm which either cannot be quantified inmonetary terms or which cannot be cured, usually because oneparty cannot collect damages from the other.

20. In Gray v. R., 2004 CanLII 47133 (NB CA), Justice J.T. ROBERTSON,

J.A. reviewed the grant a stay of execution and of proceedings in paragraph as

follows:

[7] In my view, that case has been overtaken by the Supreme Courtsdecision inRJR-MacDonald Inc. v. Canada (Attorney General), 1994CanLII 117 (SCC), [1994] 1 S.C.R. 311, decided afterH.M. More to the

point, inRJR-MacDonaldthe Supreme Court rejected the narrowinterpretation ofs. 65.1 being advanced before me. At page 329 theSupreme 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 ofproceedings in the traditional sense, but also to make any order thatpreserves matters between the parties in a state that will preventprejudice as far as possible pending resolution by the Court of thecontroversy, so as to enable the Court to render a meaningful andeffective judgment. The Court must be able to intervene not only

against the direct dictates of the judgment but also against itseffects. This means that the Court must have jurisdiction to enjoinconduct on the part of a party in reliance on the judgment which, ifcarried out, would tend to negate or diminish the effect of thejudgment of this Court. [My emphsasis.]


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21. In 508692 N.B. LTD. v. Brodersen Realty Ltd., 2008 NBQB 101

(CanLII), Justice William T. Grant, stated the following at paragraph 8

regarding a motion for an interim injunction which is substantially similar to a

Stay:

In order to succeed in a motion for an interim injunction the plaintiffmust meet the test approved by the Supreme Court of Canada inRJRMacDonald and Imperial Tobacco v. Canada, 1994 CanLII 117(S.C.C.), [1994] 1 S.C.R. 311 which is:

a) they must show there is a serious issue to be tried;

b) they must prove they will suffer irreparable harm if theinjunction is not granted; and

c) they must prove that the balance of convenience favors thegranting of the injunction.

(1) They must show there is a serious issue to be tried which is similar to

prima facie evidence that there was merit to the appeal;

22. There is a serious issue to be tried, and a stay should be granted, because

there is a primafacie evidence that there is merit to the second pending Appeal

File number 132-12-CA, further the other first pending Appeal affected by this

Motion File number 72-12-CA.

23. In Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 SCR 110,

Justice Beetz J. stated the following:

32. The first test is a preliminary and tentative assessment of the

merits of the case, ... The traditional way consists in asking whether thelitigant who seeks the interlocutory injunction can make out a primafacie case. all that was necessary to meet this test was to satisfy theCourt that there was a serious question to be tried as opposed to afrivolous or vexatious claim.


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24. In Petro-Canada v. Les ImmeublesRobo, 2002 NBQB 132 (CanLII)

Justice Raymond J. Guerette, stated the following;

The Law

There is a long line of cases supporting the test laid down in AmericanCyanamid Co. v. Ethicon Ltd.,[1975] 1 All ER 504 First, apreliminary assessment must be made on the merits of the case to ensurethat there is a serious question to be tried, one that is neither vexatiousnor frivolous. In R.J.R. Macdonald Inc. v. Canada (AttorneyGeneral), (supra) , Justice Sopinka, at p. 337 indicates that the first step

( serious questions to be tried) carries no specific requirement. The

threshold is a low one.

25. This subject Motion for a Stay is one that is neither vexatious nor

frivolous. This second Appeal File number 132-12-CA is one that is neither

vexatious nor frivolous. The other Appeal affected by this Motion File number

72-12-CA is also one that is neither vexatious nor frivolous. Moreover the

Appellant has a right to Appeal a decision which finally decides the rights of

the parties, such as the subject impugned Order for security of Costs. Without

the Stay being granted the Appellant will lose two separate, but relatedAppeals, 72-12-CA and 132-12-CA. This must be considered a very serious

matter, the consequence being that the Appellant will lose two separate

Appeals, not because of lack of merit but because of careful manipulation of the

Rules and Court, by a party represented by a lawyer against a Self-represented

Litigant. This type of procedural manipulation may be defined as Sharp

Practice, which is dishonourable and contrary to NB Solicitors Code of

professional Conduct and justifies reprimand from the Law Society of New

Brunswick.


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26. To put a Self Represented litigant, (already struggling to navigate the

convoluted legal system), under financial duress, or to cause a Self Represented

litigant to lose a meritorious Court proceeding using tactics such as financial

attrition cannot possibly be in accordance with fair play or justice. This is in

fact a legal manoeuvre which has the effect of winning by attrition and trickery

rather than merit. The natural course of legal procedure must be that an Appeal

hearing must determine Costs after the fact and not before by the subordinate

lower Courts of Queens Bench Trial Division Madame Justice Judy

Clendening.

27. On January 19, 2012 four motions were heard File number FC-45-11 by

the Court of Queens Bench Trial Division Madame Justice Judy Clendening

presiding, despite protest by Andre Murray, who by preliminary Motion

requested Recusal of Justice Judy Clendening nevertheless there was not

enough time to hear all four motions in 2.5 hours as was scheduled for the

hearing; the Motions were consisting of:

a) one brought by the Plaintiff Andre Murray,

b) two by the Solicitor Representing THE CITY OF FREDERICTON et al,

c) one by Neil Rodgers and Trina Rodgers, regarding File FC/45/11.

28. May 11, 2012 the Court- Justice Judy Clendening rendered a written

decision regarding the herein above mentioned subject January 19, 2012

hearings, Justice Judy Clendening ordered that the Statement of Claim andAmended Statement of Claim filed by Andre Murray be struck for failing to

disclose a reasonable cause of action as against the Defendants. Costs were

awarded to the Defendants in the amount of $7,500 collectively to THE CITY


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OF FREDERICTON et al. $3,000 was awarded to Neil Rodgers and Trina

Rodgers.

29. Before, rendering the decision now being Appealed (Court file number

72-12-CA), Madame Justice Judy Clendening was aware of and refused to hear

a Motion filed by Plaintiff Andre Murray, that Madame Justice Judy

Clendening Recuse herself from any further matters concerning Plaintiff Andre

Murray. Madame Justice Judy Clendening has demonstrated on many occasions

a Reasonable Apprehension of Bias towards Andre Murray. The degree of

dislike Madame Justice Judy Clendening exhibits towards the Andre Murray is

visible and audible, such that she visibly scowls at Andre Murray whenever she

see makes eye contact with the Plaintiff in Court and especially so in public

places such as passing in the hallways and anywhere else.

30. June 11, 2012 the Plaintiff Andre Murray filed a NOTICE OF APPEAL,

File Number 72-12-CA, regarding the erroneous decision of Justice Judy

Clendening of Court of Queens Bench Fredericton Trial Division of May 11,

2012 File number FC/45/11, reported as Murray v. City of Fredericton, 2012

NBQB 169 (CanLII), .

31. The Notice of Appeal Filed by the Plaintiff is full of merit, and is in no

way frivolous or vexatious. There is a strong likelihood the Appellants Appeal

will succeed. The Honorable Court did make errors in law, errors in fact and

did abuse discretion.


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32. Before the Appeal, File number 71-12-CA was able to be Heard by the

Court of Appeal, regarding the erroneous decision Court of Queens Bench

Fredericton Trial Division on May 11, 2012, moreover shortly after having

been Process Served the herein above mentioned subject Notice of Appeal Filed

by the Plaintiff upon the Respondents; the Respondents maliciously sought an

order that Plaintiff Andre Murray pay a Surety- security for potential Costs in

his Appeal of the subject impugned decision of Justice Judy Clendening- Court

of Queens Bench Fredericton Trial Division Dated May 11, 2012. Rule 58.10

of the Rules of Court provides that such an order may be made if a motion for

such security is made within 15 days from the service on the respondent of the

notice of appeal and if the judge is satisfied that such security ought to be

provided.

33. The moving Respondents should have had to prove to Madam Justice

Judy Clendening that the Appellants Appeal (file number 71-12-CA) is

vexatious or that it has a very poor chance of success. Jurisprudence dictates

that this a reviewing such a Motion adhere to Superior Court warnings, thatsecurity for costs on appeal should be exercised with caution and restraint,

furthermore, that Court would have to conclude, that it is in the interests of

justice that the requested relief be ordered.

34. September 10, 2012 the Respondents Motion for Order of Security of

Costs against Andre Murray was heard.

35. September 10, 2012, same day as the hearing of the subject Motion, the

Honourable Madam Justice Judy Clendening, rendered her biased / impugned

oral decision (the subject of this new second Appeal, File Number 132-12-CA).


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36. The Appellant now Motions for a Stay of Execution of the subject

impugned decision of the Honourable Madam Justice Judy Clendening, Dated

September 10, 2012.

37. This Appellants Motion for a stay, follows the filing of a Notice of

Appeal, Dated October 5, 2012, regarding the same impugned decision of the

Honourable Madam Justice Judy Clendening, Dated September 10, 2012.

Moreover in that Notice of Appeal, the Appellant raises several grounds of

appeal dealing with errors in law, errors in fact and abuse of discretion inter

alia.

38. The Appellant very believes that the matter of the above mentioned

Justice Judy Clendening Order of $5000.00 payment of Surety will likely be

found to be erroneous, further since it will not be definitively determined until

Court of Appeal decides the merits of the matter (file number 132-12-CA), it

would be just and equitable under the circumstances for a Judge of the Court of

Appeal to reasonably Order a Stay of the Order of $5000.00 payment of Surety,

and all the implications attached thereto, so that the matter may be heard on its

merits at the Court of Appeal.

39. Rule 61.16 of the NBRules of Court, provides for the stay of enforcement

of a judgment, which applies to a decision of the Court of Queens Bench.

Please note that court is defined in rule 1.04 as meaning the Court of Queens

Bench.


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40. The Appellant verily believes, that this Court of Appeal should grant a

stay of enforcement of the subject impugned lower Court Decision under Rule

62.26, of the Rules of Court. This rule 62.26, applies to appeals to the Court of

Appeal and is appropriate in these herein above and below mentioned

circumstances.

(2) They must prove they will suffer irreparable harm

if the injunction is not granted;

41. The Applicant will suffer irreparable harm if this time-sensitive

opportunity, in which the Applicant may act is denied.

42. In the case ofRE: Leby Fixtures & Interiors2006 NBCA 93 (CanLII),

(2006), 305 N.B.R. (2d) 199 (C.A.) the Court of Appeal stated that it is the

nature of the harm suffered not the magnitude that makes it irreparable.



He then goes on to set out the next step:

Once satisfied that the application is neither vexatious nor frivolous,

the motions judge should proceed to consider the second and thirdtests, even if of the opinion that the plaintiff is unlikely to succeed at

trial. A prolonged examination of the merits is generally neither

necessary nor desirable.

Two exceptions apply to the general rule that a judge should notengage in an extensive review of the merits. The first arises when the

result of the interlocutory motion will in effect amount to a final

determination of the action. This will be the case either when the

right which the applicant seeks to protect can only be exercised


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immediately or not at all, or when the result of the application willimpose such hardship on one party as to remove any potential benefit

from proceeding to trial. Indeed Lord Diplock modified theAmerican Cyanamid principle in such a situation in N.W.L. Ltd. v.

Woods, [1979] 1 W.L.R. 1294, at p. 1307:

Where, however, the grant or refusal of interlocutoryinjunction will have the practical effect of putting an end to the

action because the harm that will have been already caused to the

losing party by its grant or its refusal is complete and of a kind forwhich money cannot constitute any worthwhile recompense, the

degree of likelihood that the plaintiff would have succeeded in

establishing his right to an injunction if the action had gone to

trial is a factor to be brought into the balance by the judge inweighing the risks that injustice may result from his deciding the

application one way rather than the other.

As to the second test (irreparable harm), Lord Diplock, in AmericanCyanamid, (supra) stated at p. 510:

As to that, the governing principle is that the court should first

consider whether if the plaintiff were to succeed at trial inestablishing his right to a permanent injunction he would be

adequately compensated by an award of damages for the loss he

would have sustained as a result of the defendants continuing todo what was sought to be enjoined between the time of the

application and the time of the trial. If damages in the measurerecoverable at common law would be adequate remedy and the

defendant would be in a financial position to pay them, no

interlocutory injunction should normally be granted, however

strong the plaintiffs claim appeared to be at that stage.

In R.J.R. Macdonald Inc. v. Canada (A.G.), (supra), Justice Sopinkacites Beetz J. in Metropolitan Stores as follows (at p. 340):

Beetz J. determined in Metropolitan Stores, at p. 128, thatthesecond test consists in deciding whether the litigant who seeks

the interlocutory injunction would, unless the injunction is

granted, suffer irreparableharm.


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At this stage the only issue to be decided is whether a refusal to

grant relief could so adversely affect the applicants own

interests that the harm could not be remedied if the eventualdecision on the merits does not accord with the result of the

interlocutory application.

Justice Sopinka then proceeds to outline various examples of what

constitutes irreparable harm at p. 342:

Irreparablerefers to the nature of the harm suffered ratherthan its magnitude. It is harm which either cannot be

quantified in monetary terms or which cannot be cured,usually because one party cannot collect damages from the

other. Examples of the former include instances where oneparty will be put out of business by the courts decision (R.L.

Crain Inc. v. Hendry reflex, (1988), 48 D.L.R. (4th) 228

(Sask.Q.B.)); where one party will suffer permanent market

loss or irrevocable damage to its business reputation (American Cyanamid, supra); or where a permanent lossof

natural resources will be the result when a challenged activityis not enjoined ( MacMillan Bloedel Ltd. v. Mullin, 1985

CanLII 154 (BC C.A.), [1985] 3 W.W.R. 577 (B.C.C.A.)).

44. Irreparable refers to the nature of the harm suffered rather than itsmagnitude. It is harm which cannot either be quantified in monetary terms or

which cannot be cured, because there is not any known compensation for such

harm, one party cannot collect damages from the other. The right which the

applicant seeks to protect can only be exercised immediately or not at all.

45. To obtain such a stay the applicant must satisfy the Court of Appeal, that,

there is a strong prima facie case and that if the stay is not granted the applicant

would suffer irreparable harm.


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46. For a party to not be able to have an Appeal heard, because of a minor

technicality which can be overcome by this Court granting the herewithin

subject Motion, may be considered irreparable harm. Judicial procedure has

established that once a matter is considered Res judicata or a Court is Functus

Officio, a Party cannot be provide meaningful relief from that Court.

47. To lose the right of Appeal, is irreparable harm. This Court is

empowered, not only to grant a Stay of execution and of proceedings in the

traditional sense, but also to make any order which preserves matters between

the parties in a state, that will prevent prejudice as far as possible pending

resolution by the Court of Appeal of the controversy, so as to enable the Court

of Appeal to render a meaningful and effective judgment.

48. The Appellant has not paid the impugned Cost awarded as security in that

herein mentioned Motion Filed by the Respondents as a matter of principal,

because the Appellant believes that decision is wrong. The Appellant instead

filed an Appeal of that Decision. Appealing an erroneous final decision is right

afforded to a party by the judicial process in New Brunswick. Judges make bad

decision and those decision need to be scrutinized for error, without this basic

mechanism of review working properly, public confidence in the Justice system

will falter and as a consequence public confidence will be withdrawn.

49. One of the imposed effects of non payment contained within the subject

impugned Order for pre-payment of $5000.00 cost security decision, is that a

party is deemed to a have abandoned their appeal. NOTICE the Appellant has

not abandoned the appeal, and is now appealing this subject impugned decision


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so that the Appellant may move forward to hear the first Appeal filed June 11,

2012, regarding the erroneous decision Court of Queens Bench Fredericton

Trial Division on May 11, 2012 File number FC/45/11, reported as Murray v.

City of Fredericton, 2012 NBQB 169 (CanLII), .

50. The Appellant very believes to be true, that to not grant the requested

Orders will bring the administration of Justice into disrepute.

51. The Appellant has a right of appeal from a final decision of the Court of

Queens Bench, without the granting of this Motion, both the Appeal filed

regarding this impugned decision 132-12-CA and the pending Appeal File

number 72-12-CA both may be moot.

52. The Appellant very believes to be true that it will be a disservice to the

administration of justice, to allow a technicality to bar meaningful relief.

(3) They must prove that the balance of convenience

favors the granting of the injunction.

53. Applicant asserts that the balance of convenience favors the granting of

the Stay, for all parties concerned.

54. In Metz Farms 2 Ltd. v. Committee against Hog factories, 2001 NBCA,Justice JOSEPH T. ROBERTSON, J.A. at paragraph 22 stated the following:


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[22] The third factor concerns the balance ofconvenience. The interim injunction

specifically preserves the lawful protest andassembly rights of the respondents.

Correlatively, the issuance of an interlocutory

injunction will not cause the respondents any

harm. Therefore, the balance of convenience

clearly favours the appellant.

55. In NBIP Forest Products Inc. v. Comits de gestion de Kedgwick, 1993

CanLII 3298 (NB Q.B.), Justice Margaret E. L. Larlee, quoted the following:

Balance of convenience considered. Where any doubt exists asto the plaintiff's right, or if his right is not disputed, but its violationis denied, the court, in determining whether an interlocutoryinjunction should be granted, takes into consideration the balanceof convenience to the parties and the nature of the injury whichthe defendant, on the one hand, would suffer if the injunction wasgranted and he should ultimately turn out to be right, and thatwhich the plaintiff, on the other hand, might sustain if theinjunction was refused and he should ultimately turn out to beright. The burden of proof that the inconvenience which the

plaintiff will suffer by the refusal of the injunction is greater thanthat which the defendant will suffer, if it is granted, lies on theplaintiff.



The third test (Balance of Convenience) has already been set out(above) by Beetz J. in Metropolitan Stores as involving a

determination of which of the two parties is likely to suffer the greaterharm if the injunction is granted, pending a decision on the merits.Numerous factors came into play in this determination and they willvary in each case. Lord Diplock in American Cyanamid v. Ethicon(supra), at p. 511.


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It is where there is doubt as to the adequacyofthe respective

remedies in damages available to either party or to both, that

the question of balance of convenience arises. It would beunwise to attempt even to list all the various matters which

may need to be taken into consideration in deciding where

the balance lies, let alone to suggest the relative weight to be

attached to them. These will vary from case to case. Where

other factors appear to be evenly balanced it is a counsel of

prudence to take such measures as are calculated to preserve

the status quo. [Emphasis added.]

On the issue of irreparableharm, and also on the balance of convenience,it is clear that the defendant has more to lose if this injunction is

granted. On the other hand, damages will provide the plaintiff with aremedy for the breach of contract.

This Court is not satisfied that the plaintiff has met the test ofirreparableharm and, on the whole of the application, is not inclined togrant an injunction against the defendant.

As to the defendants own motion for an injunction, the test has beenmet and the injunction will be granted. The plaintiff is enjoined from

interfering with the defendants efforts to obtain product elsewhere. Todo otherwise would be to allow the plaintiff to apply slow strangulation

to the defendant.

At this point, both parties must realize that their relationship hasirretrievably broken down and that the breaches of contract must bedealt with through the court.

57. The burden of proof, in this matter lies with the Appellant, that the

inconvenience which Appellant will suffer by refusal of the injunction is greater

than that which the Respondent could possible suffer, if the Stay as requested

by the Appellant is granted.

58. The consequence of the Court not granting a stay will be the loss of two

pending Appeals, 72-2-CA and 132-12-CA, by a technicality not going to the


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merits of the matters. The Appellant would be barred by estopple from ever

again raising these specific issues in the Court of Appeal and Court of Queens

Bench of New Brunswick, for that reason irreparable harm to the Appellant will

result, if the requested injunction is not granted.

59. The issuance of Stay will not cause the Respondents any harm and would

allow the pending appeals to move along in their natural procedural steps

according to the NB Rules of Court. Therefore, the balance of convenience

clearly favors issuance of an interlocutory injunction.

60. The third test (Balance of Convenience) is set out as involving a

determination of which of the two parties are likely to suffer the greater harm if

the injunction is granted. In this case if the Injunction is not granted, the

Appellant will suffer irreparable harm, while no harm will befall the

Respondents. The right which the Applicant seeks to protect can only be

exercised immediately or not at all. The result of the granting the Stay, will

impose no hardship, or prejudice on the Respondents and is in fact proceedingaccording to the Rules of Court and the usual procedure of the Court of Appeal.

Conclusion

61. These two pending Appeals 72-12-CA and 132-12-CA should be heard

on its merits, neither is frivolous or vexatious.

62. Appellant will suffer irreparable harm if the herewithin requested Stay is

not granted; Not only will the Appellant suffer irreparable harm if the

herewithin requested injunction is not granted, but if subject Orders are acted


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upon, without a stay, the effect would be irreparable prejudice to the integrity of

the judicial system of New Brunswick.

63. Defendant asserts that the balance of convenience favors the granting of

the Stay and the Appellant further believes it is critical in the interest of Justice,

as in this case, that the Parties must be heard on Appeal,Audi alterampartem

hear the other side for this purpose the Defendant must be allowed to provide

argument. There will be no prejudice to the respondent because the Parties will

in effect be proceeding according to the Rules of Court and the standard

procedure for Appeals.

64. There is no onus on an applicant for an interlocutory stay or impounding

order to show that granting the stay or impounding order forwards the public

interest. As a general rule, all an applicant need show is that the public interest

is not hurt by the order. The applicant argues not only his own private interest,

but also the public interest, will be hurt by the refusal of a stay. A party should

not be able to circumvent the rules of Court to further their own interest, Sharp

practice techniques against as self-represented litigant should not be condoned,

nor supported by this Court. The law Society of New Brunswick Code of

Professional Conduct, does not allow this type of procedural steps against

another lawyer, nor a self represented litigant.

65. A Stay properly exercised will preserve and or restore the status quo. The

granting of the requested Stay will not give the Appellant his remedy, only

preserve the parties standing until the merits of the pending Appeals issues are

resolved. In this case, since the alleged remedy the Respondent are seeking is so


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closely tied to Appeal, not granting the requested Stay would have the effect of

Granting both Appeal in favor of the Respondents without the merits being

heard whatsoever. This is a miscarriage of justice.

66. A judicial stay of proceedings has been recognized as being an

extraordinary remedy that should only be granted in the "clearest of cases", stay

of proceedings is appropriate in circumstances, where prejudice to the

applicants right to make full answer and defence cannot be remedied, such as

in this case, or where irreparable prejudice would be caused to the integrity of

the judicial system if the Action were continued. These two factors are

alternatives. The presence of either one justifies the exercise of discretion in

favour of a stay. Both are present in the circumstances before the Court, and

either entitles the granting of a stay.

67. The impugned order under Appeal, if acted upon, without the intervention

of this court Ordering a Stay, would cause irreparable prejudice to the integrity

of the judicial system of New Brunswick;

(D) a concise statement of the relief sought by the party.

68. This Court should grant the following:

a) granting a stay of execution or of proceedings, regarding a judgment

rendered in the Respondent's favour in the Court of Queen's Bench. The stay

should be ordered under the authority of Rule 62.26 of the Rules of Court

until the subject Appeal now filed by the Appellant is determined.


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Documents

October 24, 2012, Pre-Hearing Brief on Motion for Stay of Proceedings. Court of Appeal File Number 132-12-CA. Notice of Appeal to the COURT OF APPEAL OF NEW BRUNSWICK