Court File Number: 93818 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT JUDICIAL DISTRICT OF FREDERICTON BETWEEN: THE CITY

OF FREDERICTON, Tentative Plaintiff, -andANDR MURRAY Special Appearance to challenge jurisdiction ______________________________________________________ Without Prejudice NOTICE OF MOTION Scheduled to be heard on the 11th day of January 2012 at 1:30 p.m. Regarding: Court File Number: # 93818, BETWEEN THE CITY OF FREDERICTON and ANDR MURRAY on Special Appearance to challenge jurisdiction. Without Prejudice, Andr Murray, by way of Special Appearance, further as noted by Judge Julian Dickson Andr Murray has offered to prepare than present by a secondary Special Appearance again without attorning to the Courts jurisdiction, his recitation on the legal principles underlying the formulation of jurisdiction and or as the case may be lack thereof to Provincial Court of New Brunswick, Judicial District of Fredericton, at the Justice Building, on Queen Street, Fredericton, NB, on the 11th day of January 2012 at 1:30 p.m. ______________________________________________________ Andr Murray, Per Se Special Appearance to challenge jurisdiction 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 andremurraynow@gmail.com Tentative Plaintiff THE CITY OF FREDERICTON Legal Services Division, Suite 100, 412 Queen Street, Fredericton, New Brunswick, Canada, E3B 4Y7 Phone: (506) 460-2115 Fax: (506) 460-2128

Index of the contents Page Part I An index of the contents_______________________________ Introduction ______________________________________________ Part II A concise statement of all relevant facts with such references to the evidence as may be necessary;______________ Part III A concise statement of the argument, law, and authorities relied upon;______________________________________ Part IV A concise statement of the order sought;_________________ Schedule A - list of authorities in the order referred to in the Submission ______________________________________________ i 1

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Introduction

Dear Mr. Kawlinowski essentially your clients in this case have their agent a driving a FREDERICTON POLICE CAR speeds along the city streets forcing cyclist Andre Murray to temporarily leave the street as Police Constable David Beck passes. October 7, 2011 was such a day as Police Constable David Beck, created a situation, whereby predictable circumstances where created which then must have appeared convenient for Police Constable David Beck to follow through with his unsolicited service as was forced upon Andre Murray. Please try to imagine my surprise as Police Constable David Beck patrol car passed my point I immediately returned onto the street and was subsequently (without any warning what so ever no flashing lights, no sirens not even a verbalized command) football style tackled from behind consequently knocked from my bicycle onto the ground landing on the ground with Police Constable David Beck on my back. Please try to imagine my surprise. What immediately followed as I hit the ground shortly thereafter was the second attending Constable joined in inflicted her body against mine while was previously restrained Police Officer David Beck. On behalf of THE CITY OF FREDERICTON these herewithin named agents now began to attempt Joinder with me as I continued to announce: I DO NOT CONSENT- I WAVE ALL BENEFITS (while still lying on the ground restrained and wearing the handcuffs). I was searched - my identification was located removed and my personal information recorded onto a document which was verbally identified to me as a TICKET however the word ticket does not exist anywhere on that subject paper document. Conditional to Proof of Claim that I am or was obliged to accept this offer of a TICKET moreover that I was then obliged to performance as to what ever may be found alleged therewithin also requires Proof of Claim. Please note: My integrity in my beliefs of honesty, and fairness, required that I accept the document being offered to me by Police Officer David Beck although my acceptance was always conditional to Proof of Claim. Police Officer David Beck has never provided Proof of Claim. Alternatively, immediately upon making an offer to Andre Murray, Andre Murray honorably accepted the offer, conditional therefore that Officer David Beck provide proof of claim that Andre Murray is obliged to accept the subject offer further since Andre Murray was/is waiving the benefits therefore Andre Murray required further proof of claim that he was then obliged to perform as requested/ demanded by agent David Beck a fee which must reasonably be associated with the service however in this case the service was not requested and the subsequent dubious benefits were waived.

Alternatively while maintaining his peace and honor Andre Murray subsequently and without delay contacted all parties named or associated with this Court File Action number 93818 requesting proof of claim for the hear within above noted matters. No adequate or appropriate response was forthcoming which could reasonably address the question of Proof of Claim. That I Andre Murray may satisfy this question, regarding my contacting the various named parties attached are my affidavits evidence and proof of my conduct to seek remedy and or compromise. Part II A concise statement of all relevant facts with such references to the evidence as may be necessary; 1. Andr Murray while maintaining the peace, was arrested at approximately 4:20 p.m. Friday, October 7, 2011, dangerously football styled tackled, off his bicycle, at or near 525 Aberdeen Street Fredericton N.B. by members of the Fredericton Police Force. Andr Murray did immediately inform the arresting police officers that, I do not consent and I waive all the benefits. The subject members of the Fredericton Police Force cannot assume or presume jurisdiction or any other authority, over an individual, once they are informed otherwise. Andr Murray while maintaining the peace, was arrested at approximately 4:20 p.m. Friday, October 7, 2011, dangerously football styled tackled, off his bicycle, at or near 525 Aberdeen Street Fredericton N.B. by members of the Fredericton Police Force. Andr Murray did immediately inform the arresting police officers that, I do not consent and I waive all the benefits. The subject members of the Fredericton Police Force cannot assume or presume jurisdiction or any other authority, over an individual, once they are informed otherwise. Andr Murray was provided a document which was identified to Andre Murray 2. as a ticket, however, lacked the word ticket to be found anywhere on its face, a payment schedule indicated a requirement of 50, which is ambiguous, however the earlier reference to 50 was later referred to in the Defendants Summons as $50.00 dollars, for riding on the sidewalk with a bicycle, FREDERICTON MUNICIPALITY BY-LAW INFRACTIONS/G 219324. I Andr Murray, in due diligence and in good faith conditionally accepted the ticket, upon proof of claim that the ticket applied to me and that I Andr Murray was obligated to accept the benefits offered and furthermore, upon proof of claim I was obligated to accept the ticket. No signature was requested of Andre Murray, nor did Andre Murray become signatory to this offer. 3. The arresting Fredericton Police Force members were Constable David Beck and Constable L. Comuzzi. 2. No agent for THE CITY OF FREDERICTON has yet provide the requested definitions of any relevant words, nor have they provided proof of claim that the alleged claims apply to Andr Murray, nor that Andr Murray is obligated to accept the benefits offered.

3. THE CITY OF FREDERICTON has failed to provide proof of claim to Andr Murray, therefore there is no dispute between the parties, simply put, an offer was made and an offer was in good faith conditionally accepted, there the matter stands. 4. THE CITY OF FREDERICTON has failed to substantiate their claims against the Andr Murray through negotiation and discussion, further, there since it is a fact there lacks an injured party, THE CITY OF FREDERICTON has no locus standi in this matter before the Court. 5. Jurisprudence has established, that a Provincial Court has no jurisdiction unless jurisdiction can be proven to exist, as opposed to a superior Court, where jurisprudence has established that jurisdiction is assumed to exist unless the contrary is shown. 6. If there is not dispute between Parties, the Court lacks a lis inter partes to judge, therefore the Court has no jurisdiction to act. Part III A concise statement of the argument, law, and authorities relied upon; Legal Principles Andre Murrays position on the matter I Andre Murray as an adult man; I Andre Murray claim common law jurisdiction; I Andre Murray do not consent and I waive all the benefits; I Andre Murray do not consent to the you making any legal determinations against me; 5. I Andre Murray do not consent to your jurisdictional claims against me; 6. I Andre Murray do not consent to contracting with the me; 7. I Andre Murray do not and did not consent to this Courts Jurisdiction; 8. I Andre Murray do not and did not consent to abide by The City of Fredericton Bylaws; 9. I Andre Murray do not and did not consent to attorn to the jurisdiction of this Court; 10. I Andre Murray do not and did not consent to this Court hearing the matter any further than considering the jurisdictional issues herein presented; 11. I Andre Murray have conditionally accepted The City of Frederictons offer, conditional to them providing proof of claim that the ticket applied to me and that I Andr Murray was obligated to accept the benefits offered and furthermore, upon proof of claim I was obligated to accept the ticket; 12. The City of Fredericton has acted dishonorably by not participating in negotiation and discussion regarding this matter, of application of The City of Fredericton By-laws;

1. 2. 3. 4.

7. Maxim - Bonum judex secundum aequum et bonum judicat, et aequitatem stricto juri praefert. A good judge decides according to justice and right, and prefers equity to strict law. Co. Litt. 24. 8. Andre Murray has purposefully avoided making a general appearance before the Provincial Court so as to alternatively challenge that jurisdiction has been granted of the Court, by way of special appearance. 9. Courts have ruled that a general appearance by the Defendant constitutes purposeful availment and thus justifies exercise of jurisdiction. A defendant makes a general appearance when he appears in Provincial Court for the purposes of answering the plaintiff's claim, in this case THE CITY OF FREDERICTON. Because a general appearance indicates the defendant's willingness to have the court adjudicate the dispute (and thus the defendant's use of the benefits and protections of the Court), making a general appearance in a Provincial Court will subject the defendant to personal jurisdiction in that Court. 10. When a Defendant makes a special appearance in Court, he does appear in the court, but stipulates that his appearance is strictly for the purpose of contesting the court's personal jurisdiction over him or the Courts lack of subject matter jurisdiction, or lack of jurisdiction because there is no lis inter partes. The defendant will be able to engage with the court in a debate over the validity of the Courts jurisdiction to hear the matter, but he may not open any other subject or the court may consider him to be making a general appearance, and therefore subject to jurisdiction. A special appearance may also be made for purposes of contesting other procedural defects, but its primary use is to contest personal jurisdiction. 11. In Cabaniss v. Cabaniss, 2006 BCSC 1076 (CanLII) Mr. Justice I.H. Pitfield acknowledge the application of entering a special appearance in the proceeding. [8] Mr. Cabaniss did not file an answer to the plaintiffs complaint. He admits that if he had done so, he would be taken to have attorned to the jurisdiction of the Virginia court, which he was not prepared to do. He retained counsel for the purpose of entering a special appearance in the proceeding in Virginia. In the absence of evidence with respect to the actual effect of such an appearance, I conclude that it permits a party to challenge jurisdiction without attorning to the jurisdiction of the court. In that regard, it is similar to our Rule 14(6). [9] Counsel for Mr. Cabaniss did not apply for an adjournment in order to consider issues pertaining to jurisdiction. Rather, counsel asserted that the plaintiff had not pleaded the facts required in the manner required to establish jurisdiction. [11] Counsel for Mr. Cabaniss did not allege in the special appearance or at the hearing with respect to jurisdiction that any of the facts pleaded by Ms.

Cabaniss in the complaint were false, deceptive, misleading, or fraudulent. Counsel confined his objection to the fact that the pleading was deficient in that it did not specifically state the ground on which it was alleged jurisdiction could be assumed 12. In Ontario v. Mar-Dive Corp., 1996 CanLII 8103 (ON SC) Justice LISSAMAN J. stated that a restricted or special appearance procedure was available to challenge subject-matter jurisdiction without attorning to that jurisdiction. [191] Ontario admits knowledge of the pendency of the United States District Court action and states that it chose not to appear despite the fact that a restricted or special appearance procedure was available to it to challenge subjectmatter jurisdiction without attorning to the jurisdiction of the United States courts. 13. Attorn or Attornment is defined as To consent, implicitly or explicitly, to a transfer of a right. Further Black's Law Dictionary (8th ed. 2004), provides the definition of ATTORN as follows: attorn vb.1. To agree to be the tenant of a new landlord. [Cases: Landlord and Tenant 15. C.J.S. Landlord and Tenant 2122, 277, 279.] 2. To transfer (money, goods, etc.) to another.

14. In Bad Ass Coffee Company of Hawaii Inc. v Bad Ass Enterprises Inc., 2007 ABQB 581 (CanLII) Justice J.B. Hanebury, raised the issue that where a question of jurisdiction arises a man cannot both have his cake and eat it. Did the defendants submit to the jurisdiction of the Utah courts and the Utah arbitrator? [30] BAH relies on the authors of several texts to argue that a defendant submits to the jurisdiction of the court when he defends on the merits: See Canadian Conflict of Laws, 4th ed., J.-G Castel, Butterworths: (undated) p. 203 para.125; Canadian Encyclopedic Digest, 3rd ed., Western Vol. 30, p.76 para. 20 to 25; and Civil Procedure Encyclopedia, Stevenson and Cote, Juriliber (undated) p. 2-6 - 2-8. [31] The Alberta Court of Appeal has followed this approach. In British American Oil Co. Ltd. v. Born Engineering Co. [1964] 44 D.L.R. 569, the court found that the defendant attorned to the jurisdiction of the foreign court when it entered a conditional appearance and put on the record allegations of fact, which, if true, would have met the plaintiffs claim on the merits. The court, relying on earlier authorities, agreed that where a question of jurisdiction arises a man cannot both have his cake and eat it. He cannot fight on the merits and preserve the right to say, if he loses on the merits, that the court has no jurisdiction to decide against him. Therefore, he cannot take any step unequivocally referable to

the issue on the merits. Once he does so, he has lost the right to raise the issue of the courts jurisdiction. [32] The defendants rely on the decision of Dovenmuehle v. Rocca Group Ltd. [1980] 34 N.B.R.(2d) 444 (leave to appeal to the S.C.C. refused: 1982 no citation provided) which considered a provision of the Foreign Judgments Act, R.S.N.B. 1973, c. F-19. That section provided that a foreign court had jurisdiction when a defendant appeared in the action without protest. While this case is distinguishable, as it deals with legislation not found in Alberta, it does not contradict the approach of the texts cited and the Alberta Court of Appeal decision in British American Oil. At paragraph 14 of Dovenmuehle, the court found that it is well settled in English jurisprudence that if a litigant voluntarily submits his case to a foreign tribunal for determination, that tribunal has jurisdiction to decide the case...[and] the same would appear to be true where a defendant, as well as pleading to the merits of the case, contests the jurisdiction of the foreign court... [33] The law appears settled that if the defendants addressed the merits of their case before the Utah courts, they attorned to the jurisdiction of that court. The responses of the defendants to the application to compel arbitration contained numerous submissions on the merits. The defendants clearly submitted to the jurisdiction of the Utah courts. The September, 2004, letter of their Alberta counsel alleged that they would not accept the jurisdiction of the International Center for Dispute Resolution unless ordered to do so by a court of competent jurisdiction. By attorning to the jurisdiction of the Utah court, the Utah court became a court of competent jurisdiction that could order the parties to arbitration. It did so, and the defendants were then subject to the jurisdiction of the arbitrators. Furthermore, by filing their witness list and exhibit list in the arbitration, the defendants acknowledged the arbitrators jurisdiction over them. Jurisdiction 15. Honourable J. Ernest Drapeau Chief Justice of New Brunswick has stated Free and democratic societies are founded on the supremacy of law, and an independent judiciary is essential to ensure its unbiased application. New Brunswick courts are called upon, on a daily basis, to judge and apply the appropriate law to disputes and provide a peaceful and professional mechanism for their resolution." Therefore it may reasonably follow, if there is no lis inter partes contingent upon, pertaining to something that is more important and no application of appropriate law to perform, therefore, the Court has no role to fulfill, consequentially, for a Court to interferer with peaceful negotiation and discussion, that Court would be INTRA VIRES in its jurisdiction. 16. In Wind Power Inc. v. Saskatchewan Power Corp., 1998 CanLII 14061 (SK QB) Justice GEATROS J. stated the following, regarding nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is expressly so alleged at paragraph 12:

[12] I have a further observation in the matter of inherent jurisdiction. This is a Superior Court having a specific characteristic that is stated by Furlong C.J. in Bursey v. Bursey (1966), 58 D.L.R. (2d) 451 (Nfld. S.C.) to be as follows, at p. 455: That characteristic is the manner in which plenary powers of a superior Court may be cut down or limited. The matter was considered just 300 years ago in Peacock v. Bell and Kendal (1667), 1 Wms. Saund. 73 at p. 74, 85 E.R. 84, when, as it is reported, it was held: 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 expressly so alleged. It would appear that this dictum has remained undisturbed by time as I find it is repeated in substantially the same words in 9 Hals., 3rd ed., p. 349, as follows: Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognisance of the particular court. 17. In R. v. Waugh, 2009 NBCA 23 (CanLII) CHIEF JUSTICE OF NEW BRUNSWICK , J. ERNEST DRAPEAU, stated that in first appearance, an accused person is not appearing before a trial court but before a justice of the peace or a Provincial Court judge sitting as a justice. [22] In R. v. OLeary reflex, (1991), 97 Nfld. & P.E.I.R. 314 (C.A.), [1991] N.J. No. 133 (QL), a judge of the Provincial Court dismissed a charge for want of prosecution, no Crown counsel being present when the matter was called on the first court appearance. The judge had terminated proceedings without putting the accused to his election under s. 536(2). The Court of Appeal dismissed the ensuing appeal because the Attorney General had no right of appeal. That was so because, at the time of dismissal, the Provincial Court judge did not constitute a trial court within the meaning of s. 676(1): On first appearance, an accused person is not appearing before a trial court but before a justice of the peace or a Provincial Court judge sitting as a justice (see ss. 509, 510 of the Code). Where the charge laid is a Crown option offence, the first

thing that will occur is that the Crown will elect whether it is proceeding by way of a summary conviction charge or by indictment. If the Crown elects that the matter will be tried as a summary conviction offence, then it will of necessity be tried by a Provincial Court judge, but not necessarily the Provincial Court judge sitting at that time. If the Crown elects to proceed by way of indictment, then the obvious next step is for the Provincial Court judge to put the accused person to his election as to the manner, i.e. court, in which he elects to be tried; i.e., either superior court with a jury, superior court by judge alone or by Provincial Court judge. Until the Crown elects to proceed by way of summary conviction, or in respect of proceedings by indictment the accused having been put to his election elects trial before a Provincial Court judge, and a plea is taken, the trial does not commence. In the present case, there having been no election as to the mode of procedure by the Crown, the offence charged is deemed at that stage to be an indictable one. This is confirmed by s. 34(1)(a) of the Interpretation Act, R.S.C. 1985, c. I-21, which states that: In other words, a particular Provincial Court judge acquires no jurisdiction to act as a trial court in respect of an indictable offence, and thus to deal with the offence charged, until the accused's election is made in favour of a trial in Provincial Court. It follows that if he has no jurisdiction to act as a trial court, he has no jurisdiction or authority to dismiss the charge. 18. The matter that THE CITY OF FREDERICTON has brought before the Court is a matter of a ticket being issued to the Applicant, the 7th day of October, 2011 for riding on the sidewalk with a bicycle. 19. Maxim - Merito beneficium legis amittit, qui legem ipsam subvertere intendit - He justly loses the benefit of the law who seeks to infringe the law. 20. Maxim - Misera est servitus, ubi jus est vagum aut incertum - It is a miserable slavery where the law is vague or uncertain. 21. The Applicant did, in due diligence, conditionally accept the subject ticket, conditional to the agents acting for THE CITY OF FREDERICTON to providing the requested clarification and proof of claim that the demands of performance and benefits THE CITY OF FREDERICTON was offering applied to the Applicant, and that the

Applicant was obligated to accept same and therefore establish that their actions were INTRA VIRES. 22. Black's Law Dictionary (8th ed. 2004), at Page 36 defines CONDITIONAL ACCEPTANCE as follows: conditional acceptance. An agreement to pay a draft on the occurrence or nonoccurrence of a particular event. [Cases: Bills and Notes 83. C.J.S. Bills and Notes; Letters of Credit 38.] 23. The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges." The general principle of burden of proof is that the Onus is always on a person who asserts a proposition or fact which is not self-evident. 24. In Moravian Church v. Newfoundland and Labrador et al, 2005 NLTD 123 (CanLII) The Honourable Chief Justice J. Derek Green, did state regarding General Principles: Burden of Proof at paragraph 37 as follows: (a) General Principles: Burden of Proof [37] The incidence of the burden of proof is largely determined by an analysis of the issues disclosed by the pleadings. Generally, the plaintiff, as the party initiating the action and asserting a claim, will be expected to bear the burden of proof on the matters put in issue by his claim. As noted by Viscount Dunedin in Robins v. National Trust Company [1927] A.C. 515 (P.C.) at p 520: "Onus is always on a person who asserts a proposition or fact which is not selfevident". This follows from notions of fairness as well as the practical difficulties of requiring a party facing a positive assertion to prove a negative. 25. The Applicant in good faith did reasonably demanded proof of claim that the action of issuing a ticket to the applicant travelling by bicycle was within THE CITY OF FREDERICTONs scope of authority, further and more relevant is that the claims asserted by THE CITY OF FREDERICTON even applied to the Applicant. The Applicant requested proof that the Applicant was required to Accept the offered benefits, and the subject source of the obligation upon the Applicant to perform. A bare minimum requirement of this process would be to direct the Applicant to the definitions of the words, which THE CITY OF FREDERICTON relies upon, to establish that the Applicant is indeed subject to the claims made against him. 26. Despite repeated requests CITY OF FREDERICTON and its agents, Fredericton Police Force, City Bylaw division and City Solicitor have thus far neglected, refused or is unable to provide this proof of claim, of the claims made against the Applicant. Without proof of claim, there is no claim and consequentially no valid, lawful, intra vires claim to dispute, the Court has no role to fulfill and no jurisdiction within which to function.

27. The Provincial Court in this case is Functus officio Ab initio. In this matter before the Court, because of lack of cause to adjudicate, the Court is Functus officio, which is Latin for "having performed his office," a legal term used to describe a Court, that retains no legal authority because his or its duties and functions have been completed and further, Ab initio is a proposition in law that a court's jurisdiction, is or was nul and void from its beginning. 28. A statutory Court has the necessary power to accomplish its mandate, which cannot be to act unjustly and by implication the Provincial Court may dismiss matters for lack of cause, lack of standing and lack of jurisdiction. In R. v. Kramer, 2007 CanLII 1896 (ON SC) Justice MURRAY J. stated the following at paragraph 55 as follows: [55] Although I disagree strongly with her having done so, I do not agree with the applicants assertion that a justice of the peace conducting a trial under the Provincial Offences Act has no jurisdiction to declare a mistrial. In appropriate circumstances a justice of the peace has the power to declare a mistrial. A statutory body enjoys not only the powers expressly conferred upon it, but also by implication all powers that are reasonably necessary to accomplish its mandate. In other words, the power of a statutory court or tribunal extends beyond the express language of its enabling legislation to the powers necessary to performance intended functions: See Bell Canada v. Canada (Canadian RadioTelevision and Telecommunications Commission) 1989 CanLII 67 (SCC), [1989], 1 S.C.R. 1722. 29. Every Judge appointed under Provincial Court Act (R.S.N.B. 1973, c. P-21) must take an oath (section 12(1)) before exercising his or her powers of office. That oath does state as follows: 12(1)Before exercising his or her powers of office, each judge shall (a)take and subscribe an oath of office, or (b)make and subscribe an affirmation of office, as follows: I, _______________________ of ________________ in the County of _______________________ do swear (or solemnly affirm) that I will faithfully, impartially and honestly execute all the powers and duties of the office of judge of the Provincial Court accordingly to my best skill and knowledge; and I will do right by all manner of people according to law, without fear or favour, affection or ill-will. (In the case where an oath is taken add So help me God) 30. A statutory Court has the necessary power to dismiss matters for lack of cause, lack of standing and lack of jurisdiction and grant said relief on behalf of a party Ex Debito Justitiae. 31. Duhaime.org the legal online dictionary provides the following definition of Ex Debito Justitiae

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Ex Debito Justitiae Definition: Latin: as of right. A matter ex debito justiciae is one which a litigant is entitled merely upon the asking for it; as opposed to something which may be a matter of judicial discretion or determination. Justice Beetz of Canada's Supreme Court, writing in Harelkin v University of Regina, adopted these words: "Ex debito justitiae literally means as of right, by opposition to as of grace. "A writ cannot at once be a writ of grace and a writ of right. To say in a case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for refusal. But the expression, albeit Latin, has no magic virtue and cannot change a writ of grace into a writ of right nor destroy the discretion even in cases involving lack of jurisdiction." In Schachtel v Wassman, Justice Zarzeczny used these words in reference to a litigant's right to set aside a default judgment: "[H]e is entitled, ex debito justitiae - as a matter of right - to have the default judgment registered against him set aside." REFERENCES: Harelkin v. University of Regina, [1979] 2 S.C.R. 561 Schachtel v. Wasmann, 2004 SKQB 120 32. THE CITY OF FREDRICTON has acted dishonourably, refusing to negotiate and discuss the matter; consequentially the laws of equity provide that their claims may be considered moot and void. The doctrine of clean hands holds that the plaintiff should be innocent of any wrongdoing or risk dismissal of the case. Under the clean hands doctrine, a person who has acted wrongly, either morally or legally - that is, who has 'unclean hands' - will not be helped by a Court when complaining about the actions of someone else. Consequentially there exists no valid, lawful, intra vires claims against the Applicant and since there is no lis inter partes in the traditional sense in which one exists in an action, furthermore since at present an offer was made and the offer was conditionally accepted, there is no matter for the Court to decide. The Provincial Court has no jurisdiction to hear the matter, because there is no issue to hear and no matter to decide. 33. Black's Law Dictionary (8th ed. 2004), at Page 2961 defines LIS as follows: lis. [Latin] A piece of litigation; a controversy or dispute.

34. Black's Law Dictionary (8th ed. 2004), at Page 2397 defines INTER PARTES as follows:

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inter partes, adv.[Latin between parties] Between two or more parties; with two or more parties in a transaction. inter partes,adj. 35. From my reading of the authorities, it appears to be settled law that there is no inherent jurisdiction in a Provincial Court. It is well understood that nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is expressly so alleged. A Municipal Bylaw infraction is not considered criminal behavior thus a Judge cannot be considered to be acting under the Criminal Code, in which his jurisdiction would be circumscribed by the provisions of that statute and must be found to have been thereby conferred either expressly or by necessary implication. Because of lack of jurisdiction, the Provincial Court may not hear this matter, other than to hear the challenge of jurisdiction. 36. Black's Law Dictionary (8th ed. 2004), at Page 4731 defines ULTRA VIRES as follows: ultra vires adj. Unauthorized; beyond the scope of power allowed or granted by a corporate charter or by law <the officer was liable for the firm's ultra vires actions>. 37. Black's Law Dictionary (8th ed. 2004), at Page 2412 defines INTRA VIRES as follows: intra vires, adj.[Latin within the powers (of)] Of or referring to an action taken within a corporation's or person's scope of authority 38. Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is characterized in law as intra vires (literally "within the powers"; standard legal translation and substitute, "within power"). If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed "valid" and those that are ultra vires "invalid". 39. Socrates (the Greek philosopher) was credited with saying The beginning of wisdom is the definition of terms therefore following my path through pursuit of wisdom, further, to assist in that we may achieve a just more compassionate society, I required the assistance of agents for THE CITY OF FREDERICTON to define the legal terms which may be relative, and are essential to validating THE CITY OF FREDERICTONs claims. If the agents for THE CITY OF FREDERICTON do not know the sense of the words they claim, are to be applied to the Applicant, then they are in essence speaking nonsense and their claims are null and void Ab initio.
40.

It would be frivolous and vexatious for THE CITY OF FREDERICTON to continue with their moot and unenforceable claims. Without a issue in dispute, THE CITY OF FREDERICTONs lack of locus standi and without any other cause or source of jurisdiction the Provincial Court has an equitable duty to dismiss this action, for lack of cause and lack of jurisdiction. When there is no controversy or conflict the courts have no power to adjudicate.

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41. Black's Law Dictionary (8th ed. 2004), at Page 4400 defines STANDING as follows: standing, n. A party's right to make a legal claim or seek judicial enforcement of a duty or right. To have standing in federal court, a plaintiff must show (1) that the challenged conduct has caused the plaintiff actual injury, and (2) that the interest sought to be protected is within the zone of interests meant to be regulated by the statutory or constitutional guarantee in question. Also termed standing to sue. Cf. JUSTICIABILITY. [Cases: Action 13; Federal Civil Procedure 103.1. C.J.S. Actions 5763.] 42. Duhaime.org provide the following definition of Locus Standi as follows: Locus Standi Definition: Latin: legal standing before a court. Related Terms: Standing A right to address the Court on a matter before it. In Canadians For The Abolition of the Seal Hunt, Justice Walsh of the Canadian Federal Court referred to locus standi as: "The right of individuals to bring proceedings ... when they are not personally affected (other than of course in their sensibilities) by the law or regulations complained of...." Lord Denning once wrote, in R v Paddington, that: "The court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done." In her book entitled Locus Standi, Australian jurist Leslie Stein defines it as: "... the existence of a right of an individual or group of individuals ... to have a court enter upon an adjudication of an issue ... before that court by proceedings instigated by the individual or group." In 604598 Saskatchewan Ltd. v Sask. Liquor and Gaming Authority the Saskatchewan Court of Appeal adopted these words in regards to locus standi: "A place of standing; standing in court. A right of appearance in a court of justice ... on a given question. "Roughly speaking, this place of standing, enabling a person to appear before and be heard by a court in relation to a given question, may be acquired in one of two ways: as of right, in reliance upon one's own

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private interests in the question (private interest standing); or with leave of the court in reliance largely upon the public's interest in the question (public interest standing). "And standing may exist, or be granted, in both civil and criminal proceedings, proceedings of one sort or another involving claims of various kinds, including a claim that a law is unconstitutional." REFERENCES:

604598 Saskatchewan Ltd. v Sask. Liquor and Gaming Authority 157 DLR 4th 82 (1998) Canadians for the Abolition of the Seal Hunt v Canada [1981] 1 FC 733 R v Paddington Valuation Officer, Ex parte Peachey Property Corporation Ltd [1966] 1 QB 380 Stein, L., Locus Standi (Sydney: Law Book Company, 1979).

43. The Court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or the Rules of Court on a motion for extension or abridgement of time, which may be made either before or after the expiration of the time prescribed. 44. The Court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 45. A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters brought before the Court.

Part IV A concise statement of the order sought a) the Court does reject as invalid all Claims as per this issue made by THE CITY OF FREDERICTON b) because it is fair and just, the subject ticket issued by THE CITY OF FREDRICTON dated the 7th day of October 2011, is set aside, because of the Courts lack of jurisdiction, consequence of the fact that there is no lis inter partes in the traditional sense in which one exists in an action; c) this Court does declare, THE CITY OF FREDRICTON has no locus standi, there is lack of cause before the Court, further, the Court lacks jurisdiction to hear the matter brought before it, the matter is dismissed for lack of cause and lack of jurisdiction;

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d) the Plaintiffs pay cost of the within Motion; e) such further and other relief that this Honorable Court may appear just;

ALL OF THIS FILED at Fredericton, New Brunswick, this . .. day of . . . . . . . . . ., 2012

____________________ Andr Murray

Schedule A A list of authorities in the order referred to in the Submission; and 1. Maxim - Bonum judex secundum aequum et bonum judicat, et aequitatem stricto juri praefert. A good judge decides according to justice and right, and prefers equity to strict law. Co. Litt. 24. 2. In Cabaniss v. Cabaniss, 2006 BCSC 1076 (CanLII) Mr. Justice I.H. Pitfield acknowledge the application of entering a special appearance in the proceeding. 3. In Ontario v. Mar-Dive Corp., 1996 CanLII 8103 (ON SC) Justice LISSAMAN J. stated that a restricted or special appearance procedure was available to challenge subject-matter jurisdiction without attorning to that jurisdiction. 4. Black's Law Dictionary (8th ed. 2004), provides the definition of ATTORN

5. In Bad Ass Coffee Company of Hawaii Inc. v Bad Ass Enterprises Inc., 2007 ABQB 581 (CanLII) Justice J.B. Hanebury, raised the issue that where a question of jurisdiction arises a man cannot both have his cake and eat it. 6. In Wind Power Inc. v. Saskatchewan Power Corp., 1998 CanLII 14061 (SK QB) Justice GEATROS J. stated the following, regarding nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is expressly so alleged at paragraph 12: 7. In R. v. Waugh, 2009 NBCA 23 (CanLII) CHIEF JUSTICE OF NEW BRUNSWICK , J. ERNEST DRAPEAU, stated that in first appearance, an accused

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person is not appearing before a trial court but before a justice of the peace or a Provincial Court judge sitting as a justice. 8. Maxim - Merito beneficium legis amittit, qui legem ipsam subvertere intendit He justly loses the benefit of the law who seeks to infringe the law. 9. Maxim - Misera est servitus, ubi jus est vagum aut incertum - It is a miserable slavery where the law is vague or uncertain. 10. Black's Law Dictionary (8th ed. 2004), at Page 36 defines CONDITIONAL ACCEPTANCE 11. In Moravian Church v. Newfoundland and Labrador et al, 2005 NLTD 123 (CanLII) The Honourable Chief Justice J. Derek Green, did state regarding General Principles: Burden of Proof at paragraph 37: 12. A statutory Court has the necessary power to accomplish its mandate, which cannot be to act unjustly and by implication the Provincial Court may dismiss matters for lack of cause, lack of standing and lack of jurisdiction. In R. v. Kramer, 2007 CanLII 1896 (ON SC) Justice MURRAY J. stated the following at paragraph 55 13. Provincial Court Act (R.S.N.B. 1973, c. P-21) oath (section 12(1)) before exercising his or her powers of office a Judge must swear to. 14. Duhaime.org the legal online dictionary provides the following definition of Ex Debito Justitiae 15. 16. 17. 18. 19. 20. Black's Law Dictionary (8th ed. 2004), at Page 2961 defines LIS Black's Law Dictionary (8th ed. 2004), at Page 2397 defines INTER PARTES Black's Law Dictionary (8th ed. 2004), at Page 4731 defines ULTRA VIRES Black's Law Dictionary (8th ed. 2004), at Page 2412 defines INTRA VIRES Black's Law Dictionary (8th ed. 2004), at Page 4400 defines STANDING Duhaime.org provide the following definition of Locus Standi

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