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Reason being, that, the Charter is applicable in New Brunswick, just as all provinces are bound by the Constitution.
Despite the Canadian Charter of Rights and Freedoms was adopted in 1982, it was not until 1985, that, the main provisions regarding equality rights (section 15) came into effect. The delay was meant to give the federal and provincial governments an opportunity to review per-existing statutes and strike potentially unconstitutional inequalities.

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Wednesday, January 30, 2013

Procedure - Application for an extension of time to appeal - principles



 Procedure for application for an extension of time to appeal, or also other applications for an extension of time - principles can be found in Murray v Rodgers, 2012 as follows:

[2]                                                               The principles that govern extension of time were reviewed in Gaudet v. Gaudet (2009), 350 N.B.R. (2d) 237, [2009] N.B.J. No. 223 (C.A.) (QL), where it is stated as follows:

Applications for an extension of time to appeal are determined according to the principles Ryan J.A. set out in Atlantic Pressure Treating Ltd. v. Bay Chaleur Construction (1981) Ltd. reflex, (1987), 81 N.B.R. (2d) 165 (C.A.), [1987] N.B.J. No. 528 (Q.L.):

... the basic rule to be followed in dealing with an application to extend time for appeal is that leave should be granted if justice requires that it be given. ... Generally, an intention to appeal must be formulated prior to the time for an appeal expiring. But if any rule is necessary, it would have to be that the judge hearing the motion is bound, above all other considerations, to do justice in each particular case. [para. 7]

These principles were applied in Naderi v. Strong 2005 NBCA 10 (CanLII), (2005), 280 N.B.R. (2d) 379, [2005] N.B.J. No. 67 (Q.L.), 2005 NBCA 10, where the Court explained further:

[...] to do justice in a particular case requires a balancing of the prejudice to both parties resulting from the decision to grant or refuse the extension of time. An intention to appeal within the time prescribed and any explanation given by the proposed appellant for missing the limitation period are factors to be considered together with any evidence of actual prejudice the delay would cause to the other party. Equally important to the equation is the determination of whether or not there is a serious issue to be appealed [...] as opposed to the matter being frivolous or vexatious, or, stated differently, whether or not there is an arguable case for consideration by the Court: see Duke v. B.L.E., [1989] N.B.J. No. 716 (C.A.), per Stratton, C.J.N.B. and Doug's Recreation Centre Ltd. et al. v. Polaris Industries Ltd. 2001 CanLII 19446 (NB CA), (2001), 237 N.B.R. (2d) 190; 612 A.P.R. 190 (C.A.) per Robertson, J.A. Balancing these and any other relevant factors will enable an application judge to ensure that justice is done in the particular case.

In R. v. Roberge, 2005 SCC 48 (CanLII), [2005] 2 S.C.R. 469, [2005] S.C.J. No. 49 (Q.L.), 2005 SCC 48, the Supreme Court took the unusual step of giving reasons in denying an application for an extension of time for leave to appeal. The applicant in that matter was seeking an extension of time to apply for leave to appeal a judgment of the Court of Appeal for Saskatchewan, [2004] S.J. No. 651. He had not served and filed a notice of application for leave to appeal within 60 days, as required by s. 58(1)(a) of the Supreme Court Act, R.S.C. 1985, c. S-26. Four months after the delay expired, he sought an extension of time. He explained having given instructions to his counsel to seek leave to appeal the day following the judgment in the Court of Appeal and his counsel added that this intention had been communicated to Crown counsel eight days later. However, a number of factors combined to delay the filing of an application for leave to appeal, including an accident in which a senior partner in the law firm representing Mr. Roberge was seriously injured, followed by the senior partner's previously scheduled vacation of about two and one half months, and a maternity leave by another lawyer in the firm, all requiring Mr. Roberge's counsel to take on additional tasks at his firm.

In determining Mr. Roberge's application for an extension of time, the Supreme Court explained as follows:

The power to extend time under special circumstances in s. 59(1) of the Act is a discretionary one. Although the Court has traditionally adopted a generous approach in granting extensions of time, a number of factors guide it in the exercise of its discretion, including:

1.   Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within the prescribed time;

2.    Whether counsel moved diligently;

3.    Whether a proper explanation for the delay has been offered;

4.    The extent of the delay;

5.   Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and

6.    The merits of the application for leave to appeal.

The ultimate question is always whether, in all the circumstances and considering the factors referred to above, the justice of the case requires that an extension of time be granted. [para. 6]
[paras. 5-8]


Reference: Murray v Rodgers, 2012 CanLII 29602 (NB CA), <http://canlii.ca/t/frjls> page 2-5;

Or use this direct link to decision on gnb.ca Courts of New Brunswick website:

To see my files regarding this matter of 40-12-CA Andre Murray. Trina Rodgers please see:

Monday, December 03, 2012

Madam Justice Kathleen Quigg married to Clerk of Court of Queens Bench, Fredericton Craig Carleton: Conflict of public interest!? - brought to JDDC's attention by anonymous post found herewithin Court of Appeal Section


The Honourable Madam Justice Kathleen Quigg
Madam Justice Kathleen A. Quigg, B.A., LL.B. Born in North Bay, Ontario. Daughter of Ann (Clinch) Quigg and Frank Quigg. Educated at the University of New Brunswick (B.A. - 1986, LL.B. - 1989). Married to Craig Carleton. They are the parents of three children. Called to the New Brunswick Bar in 1989. Joined Robichaud, Godin, Williamson, Theriault and Johnstone in Bathurst in 1989 where she practiced law for 17 years. Appointed to the Court of Queen's Bench of New Brunswick, Trial Division, November 22, 2006.Sat in Family Division in Saint John New Brunswick until her appointment to the Court of Appeal of New Brunswick on March 3, 2008. Served on the Canadian Bar Association Council of New Brunswick for 8 years and became President in 2005. Justice Quigg represented the Province of New Brunswick on the National Board of Directors of the Canadian Bar Association and was Vice-President, nationally, of the Woman Lawyer’s Forum of the Canadian Bar Association. Her Law Society involvement included serving as a member of the Bar Admission Course Committee and the Insurance Management Committee. She also served as a representative for Gloucester County  on the  Law Society Council .Justice Quigg is a former Vice-Chair of the New Brunswick Labour and Employment Board and sat on the New Brunswick Insurance Board.


Wednesday, November 14, 2012

Procedure - Standard of review of discretionary decisions





In Beaverbrook Canadian Foundation v. Beaverbrook Art Gallery 2006 NBCA 75 (CanLII), (2006), 302 N.B.R. (2d) 161, [2006] N.B.J. No. 307 (QL), 2006 NBCA 75, at para. 4, Drapeau C.J.N.B. addressed the standard of review of discretionary decisions in terms that are equally applicable to the present case:

Like any other discretionary judicial decision, it may be interfered with on appeal only if it is founded upon an error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence (see British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 (CanLII), [2003] 3 S.C.R. 371, 2003 SCC 71 at para. 43) or if it is unreasonable, in the sense that nothing in the record can justify it (see the Honourable R.P. Kerans, Standards of Review Employed by Appellate Courts (Edmonton: Juriliber Limited, 1994) at pp. 36-37 and Secretary of State for Education and Science v. Tameside Metropolitan Borough Council, [1977] A.C. 1014 (H.L.) Lord Diplock at p. 1064)

Friday, October 12, 2012

72.12.CA September 28.12 Response to Status Report





Hello Mr. Michael J. Bray, Q.C.,

RE: File Number 72-12-CA ANDRE MURRAY v. THE CITY OF FREDERICTON and others,
                                                       

  I did receive September 25, 2012  Service of a REQUEST FOR STATUS REPORT (FORM 62J) signed by Dominique Harvey, Deputy Registrar Dated September 24, 2012. 

As you Michael J. Bray are Registrar of Court of Appeal I will inform you that Madame Justice Judy L. Clendening sitting at the Court of Queen’s Bench, Trial Division, Fredericton New Brunswick on the 10th, day of September 2012, did render a Oral decision which, inter alia,  Stayed the Action Court File FC/45/11 (same Court of Queens Bench File corresponding with Court of Appeal File 72-12-CA)  further outrageously unfair/unjust orders of Madame Justice Judy L. Clendening are such that I have been Ordered to pay $5000 as an surety in the event that I fail to receive a favorable decision from Court of Appeal possible costs occurring should I lose my Appeal.

Furthermore Justice Judy L. Clendening Ordered that should I fail to pay this $5000 surety as a consequence Andre Murray as Plaintiff will be deemed to have abandoned the Appeal corresponding with Appeal Court file number 72-12-CA, unless $5000 is deposited with the Clerk of the Court of Queen’s Bench, by September 30, 2012.

NOTICE: I consider this subject decision impugned, unfair/unjust; consequentially, I will be filing an appeal to overturn the subject September 10, 2012 decision and outrageously unfair/unjust conditions, so that I may move forward with Court of Appeal File 72-12-CA and have this subject Appeal heard on its merits.    


Attached hereto is the subject impugned decision of Madame Justice Judy L. Clendening sitting at the Court of Queen’s Bench, Trial Division, Fredericton New Brunswick on the 10th, day of September 2012 most notably continuing to insist the she preside over my matters despite my objections of her has a preliminary matter having just refused to hear a Motion to Recuse herself. 

In the mean time I wish you a fabulous weekend.

 Sincerely and without malice, aforethought, ill will, vexation, or frivolity.

_____________________
AndrĂ©  Murray


Please see Scanned copy of:

October 5, 2012 cover letter to the Registrar. 

 http://www.scribd.com/doc/109816507/72-12-CA-Oct-5-12-Cover-Lett-Response-to-Status-Report

72.12.CA September 28.12 Response to Status Report


http://www.scribd.com/doc/109821098/72-12-CA-Sep-28-12-Response-to-Status-Report


May 11.12 4 FC-45-11 Motions Decision

http://www.scribd.com/doc/109820311/May-11-12-4-FC-45-11-Motions-Decision
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