Mechanics Lien

                                                                                        

                                                                                                  Court File Number:  F/C/104/09

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON

BETWEEN:

ANDRÉ MURRAY

                                       Plaintiff,

                                  -and-

BETTY ROSE DANIELSKI

                                       Defendant,

_____________________________________________________________________

The Plaintiff’s Submission 2

Filed by the Self Represented Plaintiff André Murray

_____________________________________________________________________

André Murray

The Plaintiff

31 Marshall Street,

Fredericton,

New Brunswick,

E3A 4J8

Telephone Number:

E-mail address:

Andrémurraynow@

gmail.com

Solicitor for

Defendant

Defendant Betty Rose Danielski

E. Thomas Christie, QC

CHRISTIE LAW OFFICE

Suite 306,

212 Queen Street

Fredericton,

New Brunswick

Canada

E3B 1A8

Tel:   (506) 472 – 2090

Fax:  (506) 472 – 2091

E-Mail: tclaw@nb.aibn.com

Betty Rose Danielski

The Defendant

Apt 603    

166 Carlton Street

Toronto, Ont.

 M5A 2K5

PART 1 – INDEX

The Plaintiff’s Submission 2

PAGE

1. PART I –  INDEX     _____________________________________________ii

2. PART II –– STATEMENT OF FACTS   ____________________________ 0

3. PART III -  ISSUES _____________________________________________ 8

1.     Questions for the Court to answer  ________________________________8

2.     Introduction  _________________________________________________9

3.     A. Should the Court grant a Continuance of the Mechanics Lien Claim?__11

4.     Granting the continuance _______________________________________11

5.     Rule 1.03 Interpretation ________________________________________14

6.     Rule 2.01 and 2.02 ____________________________________________39

7.     B. Should the Defendant pay costs of the within Motion?______________69

8.     The Defendant’s conduct  ______________________________________ 71

9.     Defendant’s questionable conduct history: _________________________ 83

10.  Cost Orders in favor of self-represented litigants____________________100

4. PART VI – ORDERS SOUGHT __________________________________112

5. SCHEDULE “A”       LIST OF AUTHORITIES _____________________112

6. SCHEDULE “B” TEXT OF RELEVANT PROVISIONS OF                 STATUTES OR REGULATIONS   _______________________________118

7. SCHEDULE “C”       LISTED  AUTHORITIES –                                       FULL DISCISION CITED ______________________________________ 123

1. Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) ______________127

2. Novotny v. Canada (Minister of Citizenship and Immigration), 2000                 CanLII 14762 (F.C.)  ____________________________________________146

3. Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.)  __________________150

4. Western Surety Co. v. National Bank of Canada, 2001 NBCA 15                     (CanLII) ____________________________________________________169

5. Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB C.A.)__169

6. LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) ___________________182

7. East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003                  NBQB 268 (CanLII) __________________________________________195

8. Agnew v. Knowlton, 2003 NBQB 454 (CanLII)_____________________206

9. Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.)____________________220

10. Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII) _______235

11. Bélanger v. Roussel, 2006 NBCA 2 (CanLII) _______________________254

12. Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.)_______260

13. Michaud v. Robertson, 2003 NBCA 79 (CanLII)_____________________263

14. Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) _______________269

B

PART II – STATEMENT OF FACTS  

1.     Plaintiff André Murray did file on April 16, 2009 at 15:08 a FORM 2 CLAIM FOR LIEN, Dated April 16, 2009 at the York County Registry Office, New Brunswick. The Deputy Registrar Evelyn Keddy certified the registration of the CLAIM FOR LIEN document and assigned file number 27035311. The here within above mentioned FORM 2 CLAIM FOR LIEN, complies with and was filed within the allowable time limits set by the New Brunswick Mechanics' Lien Act.

2.     The subject CLAIM FOR LIEN states the Date upon which the last work and materials were furnished as or on about April 14, 2009. Subject CLAIM FOR LIEN was filed was April 16, 2009. The difference between the here within mentioned dates complies with the thirty day minimum allowable filing time for wages.

3.     According to New Brunswick Rules of Court, Rule 16.03(2) the Signed, Dated April 21, 2009, NOTICE OF ACTION (FORM 16 B) Court File Number F/C/104/09 filed April 21, 2009 Court of Queen’s Bench Trial Division of New Brunswick, as specified in the New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 27 is an action commenced in which the lien may be enforced. ( see RECORD ON MOTION BOOK 1 – TAB – 4)

4.     CERTIFICATE OF PENDING LITIGATION issued by Clerk of Court of Queen’s Bench, assigned File Number F/C/104/09 was subsequently filed same day with the York County Registry Office New Brunswick April 21, 2009, 13:22 hours therefore occurring within and complying with a ninety day time limit established for filing of same according to Section 27 of the New Brunswick Mechanics' Lien Act. May this please the Honorable Court that in this case only 5 days had transpired between the April 16, 2009, filling of a CLAIM FOR LIEN and the April 21, 2009 filling of the Certificate of Pending Litigation and again we see the Plaintiff is within the prescribed time limits. The Deputy Registrar Diana L Tucker certified the registration of the Certificate of Pending Litigation document and assigned a file number 27051904.    ( see RECORD ON MOTION BOOK 1 – TAB – 3)

5.     The Plaintiff André Murray having filed above mentioned NOTICE OF ACTION (FORM 16B) according to the Rules of Court, Rule 16.03(2) The Plaintiff André Murray subsequently Signed and Dated May 20, 2009 a STATEMENT OF CLAIM (FORM 16C) which was delivered to Court Client Services to be Filed and was assigned Court File Number F/C/104/09 May 20, 2009. ( see RECORD ON MOTION BOOK 1 – TAB – 5)

6.     The Plaintiff André Murray having Filed a Signed and Dated May 20, 2009 STATEMENT OF CLAIM (FORM 16C)  subsequently amended same  according to the Rules of Court, Rule 16.09, 27.10 (2)(a), 27.10 (3) thereby filing the Signed and Dated August 21, 2009 AMENDED STATEMENT OF CLAIM (FORM 16C) within the Court File Number F/C/104/09 August 21, 2009 with the Court of Queen’s Bench Trial Division of New Brunswick. (see RECORD ON MOTION BOOK 1 – TAB – 6)

7.     The Plaintiff André Murray did cause the Service of the following Documents to occur according to Rules of Court 16.08,  a CLAIM FOR LIEN, Dated April 16, 2009, CERTIFICATE OF PENDING LITIGATION Dated April 21, 2009, NOTICE OF ACTION (FORM 16 B)  dated April 21, 2009, STATEMENT OF CLAIM (FORM 16C) Dated May 20, 2009, according to Rule 27.10 (4) and 27.10 (5) AMENDED STATEMENT OF CLAIM (FORM 16C) Dated August 21, 2009, within the six month time limit requirement Rules of Court 16.08(2).

8.     The Plaintiff André Murray did cause the Service of the following here within below provided Documents on Defendant Betty Rose Danielski according to Rules of Court 16.08, 18.01(a), 18.02(1)(a) and 18.10(1) by commissioning the service of CANADIAN PROCESS SERVING INC, 509 – 157 Adelaide Street West, Toronto, ON M5H 4E7.

Ø     CLAIM FOR LIEN, Dated April 16, 2009; 

Ø     CERTIFICATE OF PENDING LITIGATION Dated April 21, 2009;                                            

Ø     NOTICE OF ACTION (FORM 16 B) Dated April 21, 2009;                                                  

Ø     STATEMENT OF CLAIM (FORM 16C) Dated May 20, 2009;                                             

Ø     AMENDED STATEMENT OF CLAIM (FORM 16C) Dated August 21, 2009.

9.     AFFIDAVIT OF SERVICE, Dated the 9^th day of November, 2009, of Process Server George Mallia, of the City of Toronto, in the Province of Ontario stated as follows:

1. On October 19^th, 2009, at 7:15 p.m., I personally served Defendant Betty Rose Danielski with the following documents:

a.      Claim for Lien  

b.     Certificate of Pending Litigation

c.      Notice of Action

d.     Statement of Claim

e.      Amended Statement of Claim

 by leaving a true copy with her at 439 Sherboure Street, 3^rd Floor, Toronto, Ontario M4X 1K6.

2. I was able to identify the person by means of verbal acknowledgement.

10.  The above mentioned AFFIDAVIT OF SERVICE, Dated the 9^th day of November, 2009, of Process Server George Mallia, has been filled with Court of Queen's Bench of New Brunswick, November 30, 2009. (please  see copy within RECORD ON MOTION BOOK 1 – TAB – 1)

11.  I Plaintiff André Murray responding to Process Server George Mallia’s verbalized concerns that Betty Rose Danielski is avoiding service I did take extra precautions and did send by UPS Delivery Service, prepaid registered mail, to Defendant Betty Rose Danielski two copies of:

Ø     CLAIM FOR LIEN, Dated April 16, 2009; 

Ø     CERTIFICATE OF PENDING LITIGATION Dated April 21, 2009;                                           

Ø     NOTICE OF ACTION (FORM 16 B) Dated April 21, 2009;                                                  

Ø     STATEMENT OF CLAIM (FORM 16C) Dated May 20, 2009;                                             

Ø     AMENDED STATEMENT OF CLAIM (FORM 16C) Dated August 21, 2009.

12.  UPS package Service, Express Saver, Billed Charge $20.53, tracking number was E8386887925,  Sender A MURRAY, FREDERICTON NB E3B 5V5,  Receiver BETTY ROSE DANIELSKI, FUDGER HOUSE CARE OF TORONTO ON M4X 1K6. ( see RECORD ON MOTION BOOK 1 – TAB – 22  and 24 ) Proof of service was by way of signature in accordance with to Rule 18.03 (4)(c). ( see RECORD ON MOTION BOOK 1 – TAB – 23).

13.  UPS package Service, Express Shipment, Billed Charge $37.63, tracking number was E8386887989,  Sender MURRAY ANDRÉ, FREDERICTON NB E3B 5V5,  Receiver BETTY ROSE DANIELSKI, TORONTO ON M5A 2K5. ( see RECORD ON MOTION BOOK 1 – TAB – 20  and 24 ) Proof of service was by way of signature in accordance with to Rule 18.03 (4)(c). ( see RECORD ON MOTION BOOK 1 – TAB – 21 ).

14.  On November 26, 2009, Solicitor E. Thomas Christie for Defendant Betty Rose Danielski, did file with the Client Services for Court of Queen’s Bench Trial Division, Judicial District of Fredericton, a Defendant’s NOTICE OF INTENT TO DEFEND (FORM 20A), Dated November 26, 2009, but failed to Serve the Plaintiff same document as is required by the Rules of Court, Rule 20.01, Rules of Court, Rule 20.02(1) and Rules of Court, Rule 20.02(2).

15.  On November 26, 2009, Solicitor E. Thomas Christie for Defendant Betty Rose Danielski, did file with the Court of Queen’s Bench Trial Division, Judicial District of Fredericton, a Defendant ‘s Demand for Particulars (FORM 27L), Dated November 26, 2009, but failed to Serve the Plaintiff same document as is required by the Rules of Court, Rule 27.08(3).

16.  On April 20, 2010, Plaintiff André Murray Filed a Notice of Motion (Form 37A)  with the Court of Queens Bench Trial Division Fredericton, New Brunswick, requesting Orders for a Continuance of the New Brunswick Mechanics' Lien action pursuant to New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b). ( see RECORD ON MOTION BOOK 1 – TAB – 8 ).

17.  A copy of the notice of Motion has been served on the Defendant to the action pursuant to section 52.1(1)(b).  (please see RECORD ON MOTION BOOK 1 – TAB – 7 ).

18.  A copy of the Notice of Motion, signed, Dated and filed April 20, 2010, supporting Affidavit of Plaintiff André Murray signed, Dated and filed April 20, 2010 habe been served on the Defendant to the here within subject action, according to Rules of Court Rule 18.07 (2) Service on Solicitor of Record, for the Defendant Solicitor E. Thomas Christie, by telephone transmission, verified successful, to Fax number 472 – 2091.

19.  AFFIDAVIT OF SERVICE (Form 18B), of Plaintiff André Murray signed, Dated and filed April 20, 2010 within the Court of Queens Bench Trial Division Fredericton, New Brunswick stated that Plaintiff André Murray served Solicitor E. Thomas Christie, for Defendant Betty Rose Danielski, with the attached documents, namely a copy of a NOTICE OF MOTION, signed, Dated and filed April 20, 2010 and a supporting Affidavit of Plaintiff André Murray signed, Dated and filed April 20, 2010, at 3:48P.M. to Fax number (506) 472 – 2091 by telephone transmission, verified successful, according to the attached transmission Verification Report, Serial number #000H6J423935.    

20.  The Plaintiff to date has never been served a certain AFFIDAVIT of Betty Rose Danielski. May this please the Honorable Court that prior to a Court hearing of this matter June 10, 2010, heard in Court of Queens Bench Fredericton Trial Division the Plaintiff attempted to protest the reference to or inclusion of same document and was not granted the opportunity to object to the reference of this subject AFFIDAVIT of Betty Rose Danielski which the Defendant has not yet caused Service upon the Plaintiff according to the Rules of Court.

21.  On the 10th day of June, 2010, in response to the Defendant’s DEMAND FOR PARTICULARS (FORM 27L), I Plaintiff André Murray filed with Client Services for the Court of Queens Bench, Trial Division, Judicial District of Fredericton, a STATEMENT OF PARTICULARS (FORM 27M) signed Dated the 10th day of June, 2010.

22.  On the 10th day of August, 2010, at 10:00AM, Plaintiff André Murray did serve E. Thomas Christie, Solicitor for Defendant BETTY ROSE DANIELSKI, STATEMENT OF PARTICULARS (FORM 27M) Dated the 10th day of June, 2010, by leaving a copy with Solicitor E. Thomas Christie in person, for Defendant BETTY ROSE DANIELSKI.  (please see RECORD ON MOTION BOOK 2 – TAB – 35 ).

23.  I Plaintiff André Murray, November 9, 2010, regarding a related matter currently being heard Court of Queens Bench Moncton Trial Division, was served a copy of NOTICE OF DISCONTINUANCE (FORM 25A), COURT FILE Date Stamped November 5, 2010. May this please the Court the subject NOTICE OF DISCONTINUANCE (FORM 25A), is regarding a matter that is related to the here within subject Mechanics Lien Action, regarding same equity of Property, Property Title Registered with N.B. Land Titles as Owner Betty Rose Danielski, except André Murray is the Defendant in that matter being heard in Moncton Trial Division.   (Please see RECORD ON MOTION BOOK 2 – TAB – 36).

24.  On November 18, 2010, Plaintiff André Murray, received a copy of a letter, by facsimile, from the Office of Stewart McKelvey, on behalf of Solicitor representing 501376 N.B. Ltd., a body corporate, Solicitor Hugh J. Cameron acting Agent who had previously bid at auction, on behalf of 501376 N.B. Ltd., a body corporate, for the Marshall Street, City of Fredericton, Residential Duplex Property, PID No. 01548650 and PAN 506975 and subject of the request for Orders of Continuance according to the Mechanics Lien Act. currently being heard before this Honorable Court. The subject letter addressed to André Murray (Plaintiff in this matter, Defendant in that matter) stated as follows inter alia:                                 “….501376 N.B. Ltd. has no further interest in the property indentified as PID No. 01548650 and PAN 506975 and, in addition, neither I, nor Stewart McKelvey, have carriage of this matter or any involvement with respect to Court File No. M/C/0642/09.”  (Please see RECORD ON MOTION BOOK 2 – TAB – 37 ).

25.  On November 29, 2010, Plaintiff André Murray, as Defendant in the Court Hearing of a related matter, Court File Number M/C/0642/09) did Motion the presiding Mr. Justice for a Interim Order, pursuant to Rules of Court, Rule 44.01, INTERIM RECOVERY OF PERSONAL PROPERTY. The Order was granted as requested and after much debate about the wording of the Order, the subject Order was subsequently signed by the Honorable Court. The Plaintiff in this matter may now coordinate a scheduled entry into the previously denied access premises that the Plaintiff may retrieve the relative contracts, which are subject of this Mechanics Lien Action, moreover, which are essential to irrevocably establishing the Plaintiffs position in this matter.

26.  May this please the Honorable Court Solicitor E. Thomas Christie for Defendant Betty Rose Danielski, to date has not filed with the Court of Queen’s Bench Trial Division, Judicial District of Fredericton, a Statement of Defense, as required to by the Rules of Court Rule27.04(2) and 20.02(b).

C

PART III -  ISSUES

1. Questions for the Court to answer.

1. Should the Court grant a Continuance of the Mechanics Lien Claim?

2. Should the Defendant pay costs of the within Motion?

A.

Should the Court grant a Continuance of the Mechanics Lien Claim?

Introduction

27.  The Plaintiff has been to this point unable to retrieve documents, necessary to prove the Plaintiffs position and move to Discovery, because of circumstances beyond the Plaintiffs Control. The Plaintiff (in this matter) has been denied access to to retrieve the necessary documents, so important to resolving this Action.

28.  Not Granting the Plaintiff’s Requested Order for or Continuance of the Plaintiff’s Mechanics Lien Action will greatly prejudice the Plaintiff. This Honorable Court has a opportunity to make a just decision based on the merits of the Plaintiffs subject case to date, consequently denial of a Order of Continuance of this matter as requested by the Plaintiff would prejudice the Plaintiffs right to be granted satisfaction and justice in due course. It cannot be just or fair for the Plaintiff to lose the opportunity to have satisfaction concerning the Mechanics Lien Action, simply because of a technicality which can be easily overcome by the Court granting the Continuance. 

29.  Should the Honorable Court not Grant the Plaintiff’s Requested Order for or Continuance this will greatly prejudice the Defendant, because the Defendant will have slipped out of opportunity to responsibly compensate the Plaintiff for contracts fulfilled and benefits rendered to the Defendant.

30.  The Plaintiff respectfully contends that to be circumspect regarding the question of possible prejudice to the each respective Party, the Plaintiff is confident the granting of the Plaintiff’s Requested Order by this Honorable Court for or Continuance of the subject Mechanic Lien Action will not unduly prejudice either Party to this Mechanics Lien Action. As a result of granting the Plaintiffs requested Order for a Continuance, consequently this would further provide opportunity for the Parties to this Action to discover each other through the informal Discovery Process provided for within the Mechanics Lien Act, therefore possibly resolving the subject issues, to the satisfaction of both parties without further need of the Honorable Courts Services.

31.  Alternatively granting the requested Order for or Continuance will not prejudice the Defendant, because, the Defendant would be given the opportunity to (while in an informal environment) examine relative substantive Contracts and documents for which the Plaintiff contends the Defendant is responsible furthermore that the defendant has realized financial equity benefit at the expense of the plaintiff which must noe be compensated. This current unresolved situation is the result of circumstances the Defendant has set in motion, further, that the Defendant must now remunerate where remuneration is due. Settling ones obligations should not require the Honorable Courts oversight. To date the Defendant has denied the Plaintiffs request of a Consent to Continuance of this Action unnecessarily prolonging settle of the respective matters therefore the Defendant has avoided genuine Remedy.

32.  Please refer to the Maxim -Audi Alteram Partem -Latin; literally 'hear the other side'. The maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person, the Plaintiff is requesting of the Defendant, to be heard on this matter. The Plaintiff believes that DISCOVERY will ‘reveal all’ necessary to resolve the differences of opinion. A Order for a Continuance of the Mechanics' Lien Action pursuant to New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b), will provide both Parties to this Action opportunity to go to DISCOVERY. This conceivably would realize a natural conclusion. As this Honorable Court is well aware principles of natural justice have evolved under common law as a check on the arbitrary exercise of power, and ensure that these powers are exercised in a just and fair manner. Common law, addresses this need to control the arbitrary exercise of powers through application of the principles of natural justice to the exercise of such powers.                                                                               The Plaintiff and Defendant are both entitled to be heard on this Mechanics Lien Action and encouraged by many centuries of wisdom that the DISCOVERY process as provided for within the subject Act will possibly provide genuine conclusive remedy.

33.  The Plaintiff sincerely believes that DISCOVERY will reveal and remove any questions that currently exist, further, as DISCOVERY is the proper direction this matter must proceed to. This most certainly must be true. The decision of this Honorable Court should be in accord with the principles of natural justice and the Honorable Court may grant the Order for Continuance as requested by the Plaintiff and this Honorable Court may further Order that the Parties ‘undertake to perform’ DISCOVERY.

Granting the continuance

34.  The Plaintiff argues that the Court may keep with the general direction expressed in the New Brunswick Rules of court, Rule 1.03(2) “to secure the just, least expensive and most expeditious determination of every proceeding on its merits”; should the Court not grant the requested Continuance, the result would be that the Plaintiff would be prejudiced, further, the Plaintiff will be unable to pursue the benefits of genuine remedy as is anticipated through the DISCOVERY process, further as provided within the Mechanics Act; to experience ‘closure’  based on the substantive material able to be disclosed.

35.  The Plaintiff contends that in any event, the matter remained alive within the one year time period, moreover the Plaintiff in order to meet the requirement established by Section 52.1(1)(b) of the Act did within the prescribed period of time according to the act, the Plaintiff did prior to the expiry of the one year time period,` appropriately file under Section 52.1(1)(b) of the Act.  Accordingly, there can be no deemed discontinuance of the action since Section 52.1(1)(b) of the Act was complied with.  As long as an application is made and notice of the application given to the defendant within the one year for the commencement of the action timeline, Section 52.1 has been complied with.  The provision does not go on to deal with deemed non-compliance in the event the action is not set down for trial by the expiration of the continuation period.  It is the comprehension of the Plaintiff that is something to be dealt with in the Order of continuance.  Such an Order could contain a provision that in the event the action is not set down for trial prior to the expiration of the continuation period, the action shall be deemed discontinued or shall be struck.  But Section 52.1 contains no such provision nor do the Plaintiff’s  request for Consent to Orders of a Continuance in this case. 

36.  The Plaintiff argues that the principle of natural justice which is to hear the other side/party, compels the Court to grant the requested Continuance, so that the Plaintiff may be heard at a later time if necessary, furthermore, justice will be best served by granting the requested Continuance further, the balance of prejudice and or convenience favors granting the Continuance. Balancing these and any other relevant factors will enable the Court to ensure that justice is done in this subject matter before the Court.

37.  The Plaintiff offers that it is in the interest of justice that the Honorable Court grant the Order of Continuance of the Plaintiff’s Action pursuant to Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b). harmonious with Rules of Court Rule 1.03, Rule 2.01 and 2.02 so that should it at a future date become necessary, this Mechanics' Lien Action may be ruled on its merits.

38.  The Plaintiff argues that the Defendants will not be prejudiced in any meaningful manner if the Court grants the Plaintiff’s requested Order for a Continuance of this Mechanics' Lien action pursuant to Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b) in accordance with Rule 1.03, 2.01 and 2.02 of the Rules of Court, to be heard and determined on the merits.

39.  The Plaintiff respectfully asserts that a refusal to grant the Plaintiff’s request therefore, not granting of Orders of a Continuance would do an palatable significant injustice to the Plaintiff, while to grant the Orders as requested for a Continuance is not going to cause any identifiable injustice to the Defendant and or prejudice the Defendant's defence, then the requested Continuance may reasonably be granted.

40.  The Plaintiff points to the Code of Professional Conduct, CHAPTER 15 (2)(iii), 15 (2) (vii) and 15 (4)  of the Law Society of New Brunswick which appears to compel Solicitor for the Defendant to avoid taking advantage of slips, irregularities or mistakes on the part of the Plaintiff, not going to the merits, which does not involve a prejudice of the rights of the Defendant.  Furthermore, the Solicitor for the Defendant should agree to reasonable requests according to the same principles of good faith and courtesy observed toward other lawyers, in this case towards the Self Represented Litigant Plaintiff, a layperson lawfully requesting a Order be granted for Continuance of the subject Action as stated here within and throughout.

Rule 1.03 Interpretation

41.  Black's Law Dictionary (8th edition, 2004), defines Justice as “The fair and proper administration of laws.” The fair and proper administration of Justice in the Courts of New Brunswick, naturally require procedural application of the Rules of Court, further, with the intention of arriving at a determination of every proceeding on its merits. Please note that the filing of the here within Notice of Motion requesting of the Honorable Court Orders for Continuance of same became unavoidably necessary for the Plaintiff in pursuance of Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b) Please note: The Plaintiff in this matter attempted several times to convince the Defendant in this matter that the granting of the the Plaintiff’s request of the Defendant’s consent to a Continuance would be beneficial. Consequently the Defendant having not granted, the Plaintiff’s request for a consent to Orders for a Continuance of the here within subject matter, it became necessary for the Plaintiff, to overcome the defined technical time limits of the Mechanics' Lien Act, R.S.N.B. 1973, c. M, in this matter, namely the Order continuing the Mechanics' Lien action.

42.  Rule 1.02, of the New Brunswick Rules of Court is reproduced as follows:

CITATION, APPLICATION AND INTERPRETATION

1.02 Application

These rules apply to all proceedings in the Court of

Queen’s Bench and the Court of Appeal unless some other

procedure is provided under an Act.

43.  A determination should be in keeping with the general direction contained in Rule 1.03(2) “to secure the just, least expensive and most expeditious determination of every proceeding on its merits”, Rule 1.03 (2), of the New Brunswick Rules of Court is reproduced as follows:

CITATION, APPLICATION AND INTERPRETATION

1.03 Interpretation

1.03 (2) These rules shall be liberally construed to secure

the just, least expensive and most expeditious determination

of every proceeding on its merits.

44.  The Plaintiff respectfully requests that the Honorable Court keep with the general direction expressed in the New Brunswick Rules of court, Rule 1.03(2) “to secure the just, least expensive and most expeditious determination of every proceeding on its merits”, by taking into consideration the prejudice caused against the Plaintiff, if the Honorable Court does not grant the Plaintiff’s requested Orders for Continuance of the here within mentioned Mechanics Lien Action, consequently the Plaintiff would be unable to pursue remedy through DISCOVERY and or should it have become necessary obtain a Rulings and or a Decision rendered by the Honorable Courts on contentious unresolved matters inter alia.

45.  Prejudice is defined by Black's Law Dictionary (8th ed. 2004) , Page 3738 as follow:

PREJUDICE

prejudice,n.1. Damage or detriment to one's legal rights or claims. See dismissal with prejudice, dismissal without prejudice under DISMISSAL.

legal prejudice. A condition that, if shown by a party, will usu. defeat the opposing party's

action; esp., a condition that, if shown by the defendant, will defeat a plaintiff's motion to dismiss a case without prejudice. • The defendant may show that dismissal will deprive the defendant of a substantive property right or preclude the defendant from raising a defense that will be unavailable or endangered in a second suit. [Cases: Federal Civil Procedure 1700; Pretrial Procedure 510. C.J.S. Dismissal and Nonsuit §§ 24–27.]

undue prejudice. The harm resulting from a fact-trier's being exposed to evidence that is

persuasive but inadmissible (such as evidence of prior criminal conduct) or that so arouses the

emotions that calm and logical reasoning is abandoned.

2. A preconceived judgment formed without a factual basis; a strong bias. [Cases: Judges

49. C.J.S. Judges § 108.] — prejudice,vb. — prejudicial,adj.

46.  In Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) The Honourable Justice Richard stated the following regarding criteria for “extension of time to serve the pleading” at paragraph 18 as follows:

     [18]                        …………………… .   Thus, Mr. Ferris would have required an extension of time to serve the pleading.  The criteria for extending time have been addressed in several decisions of this Court.  It is concisely stated in Bulmer-Woodard v. Bulmer 2006 CanLII 30456 (NB C.A.), (2006), 307 N.B.R. (2d) 276, [2006] N.B.J. No. 363 (C.A.) (QL) as follows: 

The overriding consideration in assessing an application to extend a time limit is the need "to do justice in each particular case": see 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 (C.A.) (QL) per Ryan J.A. at para. 7. In Naderi v. Strong 2005 NBCA 10 (CanLII), (2005), 280 N.B.R. (2d) 379 (C.A.), [2005] N.B.J. No. 67 (C.A.) (QL), 2005 NBCA 10, at para. 13 this was explained as follows:

[...] 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.) (QL) per Stratton, C.J.N.B. and Doug's Recreation Centre Ltd. et al. v. Polaris Industries Ltd. 2001 CanLII 19446 (NB C.A.), (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.   [para. 9]

47.  The Plaintiff requests of this Honorable Court, to consider, that any existing prerequisites to the granting of an extension of time as found above in Ferris v. The City of Fredericton, “Balancing these and any other relevant factors will enable an application judge to ensure that justice is done in the particular case” may be relatively similar to existing prerequisites for this  Court to grant a Order for Continuance as requested.

48.  The Plaintiff’s position is that justice will be best served by granting the requested Order of a Continuance of the Plaintiff’s Mechanics' Lien action pursuant to Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b).

49.  Further in Novotny v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14762 (F.C.) MR. JOHN A. HARGRAVE, PROTHONOTARY, stated the following regarding the test for an extension of time paragraphs 2 – 6 as follows:

[2]      The test for an extension of time, as set out in Grewal v. Minister of Employment and Immigration (1986), 63 N.R. 106 (F.C.A.) is well known. Grewal, as summed up by Mr. Justice Strayer, as he then was, in Beilin v. Minister of Employment and Immigration reflex, (1995), 88 F.T.R. 132 at 134, stands for the proposition that "as the condition for obtaining such an extension of time an applicant must show that there was some justification for the delay throughout the whole period of the delay and that he has an arguable case...".

[3]      While the elements required by Grewal in seeking an extension of time are, as I say, well known, and indeed Grewal is referred to in the Respondent"s material, too often counsel do not take seriously the necessity for clearly establishing, in their material in support of the motion for a time extension, that there is an arguable case.

[4]      The factors to consider in an application for an extension are, to a great degree, open-ended: see for example Noel & Lewis Holdings Ltd. and Warky v. Canada reflex, (1986), 5 F.T.R. 166 at pages 168 and 169 and Karon Resources Inc. v. Minister of National Revenue reflex, (1994), 71 F.T.R. 232 at 235-236. There are three additional factors which come into play in this instance. First, there is the underlying consideration of doing justice between the parties (Grewal, supra, at 110). Second, a compelling explanation for delay may result in a time extension where the arguable case is weak, and vice versa (Grewal, supra, at 116). Third, there must be material before the Court upon which the Court can be satisfied both as to an explanation for the delay and that the case is an arguable one (Consumers" Association of Canada v. Ontario Hydro [No. 2] [1974] F.C. 460 (F.C.A.) at 463, as referred to in Grewal, supra, at 110).

[5]      In the present instance at issue are delay, whether there is an arguable case and prejudice to both Applicants and Respondent. The delay before the Respondent attempted to file the memorandum of argument was minimal and, as I have noted, it was the result of a misreading of a calendar. This was an unfortunate oversight, but in this instance it is not fatal. Here I would acknowledge that counsel for the Applicants pleads the monetary hardship and prejudice to his clients as a result of the filing oversight: that is unfortunate, but it can always be rectified by an award of costs.

[6]      What is fatal to the Respondent"s motion is that there is nothing, beyond a bare assertion that "The Respondent has an arguable case." by which I may determine whether the case is in fact arguable. As Chief Justice Jackett said in Consumers" Association of Canada (supra) at page 463, an extension of time depends upon the Court having before it material from which it can satisfy itself that there is an arguable case for setting aside the order or decision in question. In this instance there is no material: a bald assertion of an arguable case amounts to nothing. As Associate Senior Prothonotary Giles points out in Valyenegro v. Canada reflex, (1995) 88 F.T.R. 196, there can be no prejudice where a party

With regard to the prejudice to the applicant, I think it may be assumed that the applicant will be prejudiced if he is denied the right to put forward his case. If, however, the applicant does not have a case, he cannot be prejudiced if an extension of time is denied. Here the applicant has tendered no evidence of an arguable case. There is therefore, no evidence of the existence of an arguable case which he is being denied the right to put forward. There is therefore no evidence of any prejudice to the applicant.      [page 201]

This leads back to the concept of the underlying consideration of doing justice between the parties, a factor in Grewal. While the result, a denial of the time extension, may be unfortunate, there is no injustice where a party, here the Respondent, fails to put forward an arugable case.

50.  Considering the underlying principle of doing justice between the parties may this Court compare the here within above mentioned test in Novotny v. Canada, 2000, supra, to the Plaintiff’s Motion for Orders of Continuance:

“The test for an extension of time, as set out in Grewal v. Minister of Employment and Immigration (1986), 63 N.R. 106 (F.C.A.) is well known”:

1) “an applicant must show that there was some justification for the delay throughout the whole period of the delay”.

51.  In response to the first part of a test, as set out in Grewal v. Minister of Employment and Immigration (1986), the Plaintiff Andre Murray a Residential Leasehold Tenant was caught unawares regarding a surprise forced eviction from his residence of five years; further the eviction occurring October 23, 2009, was resulting from an ex parte hearing and subsequent default judgment Ruling the Court of Queens Bench Trial Division Judicial District of Moncton thereof consequently granting Orders as requested by the Plaintiffs in that matter to evict Tenant Andre Murray ‘forthwith’. Incidentally Tenant Andre Murray was evicted as hrewithin above mentioned on a Order using words such as ‘forthwith’.                         Tenant Andre Murray was indeed evicted in a ‘forthwith’ manner without prior notice occurring October 23, 2009.                                                       Please note: Conversion of Tenant Andre Murray’s (Plaintiff in this matter) property has occurred as Andre Murray was not permitted at the October 23, 2009 eviction to remove any possessions from the premises from which the Plaintiff Andre Murray contends all contractual documentation et al substantive material necessary for the plaintiff in this matter to experience the full advantages and opportunities presented by DISCOVERY as provided according to the Mechanics Lien Act.                                         May this please the Honorable Court the Plaintiff in an attempt to retrieve the  here within above mentioned documents – indispensable to the Plaintiff’s successful DISCOVERY subsequently and without delay the Plaintiff did file a Notice of Motion to Rescind the October 20, 2009 Eviction Orders, as enforced October 23, 2009. Since that time the Plaintiff has actively pursued all known methods of resolve in the retrieval of property a conversion of Andre Murray’s property.

52.  Plaintiff Andre Murray has attended three separate Court hearings involving the matter of access to the here within above mentioned contractual documents.   Plaintiff Andre Murray has recently successfully acquired a Order from the Court of Queens Bench Trial Division Judicial District of Moncton, granting the Plaintiff access to retrieve said contractual documents currently being with held.

“The test for an extension of time, as set out in Grewal v. Minister of Employment and Immigration (1986), 63 N.R. 106 (F.C.A.) is well known”:

2) “and that he has an arguable case”.

53.  In response to the second part of the above referenced test, Grewal, supra, at 116, the Plaintiff has presented a case replete with argument regarding the Plaintiffs fulfillment of the time requirements and adherence to the Rules of Court as found in the Plaintiffs Submission filed with Court Client Services in June, 2009.

54.  Furthermore: in Grewal v. Minister of Employment and Immigration (1986), 63 N.R. 106 (F.C.A.) “There are three additional factors which come into play in this instance.”

“First, there is the underlying consideration of doing justice between the parties (Grewal, supra, at 110).”

Black's Law Dictionary (8th ed. 2004), defines Justice, at  Page 2527 – 2528 as follows:

JUSTICE

justice. 1. The fair and proper administration of laws.

Black's Law Dictionary (8th ed. 2004), defines unjust as follows at Page 4775

UNJUST

unjust, adj. Contrary to justice; not just.

55.  The following definition of fair is found provided ‘online’ Merriam Webster at the following: URL address:  http://www.merriam-webster.com/dictionary/fair

Main Entry: ¹fair

Pronunciation: \ˈfer\

Function: adjective

Etymology: Middle English fager, fair, from Old English fæger; akin to Old High German fagar beautiful

Date: before 12th century

6 a : marked by impartiality and honesty : free from self-interest, prejudice, or favoritism <a very fair person to do business with> b (1) : conforming with the established rules : allowed (2) : consonant with merit or importance : due <a fair share> c : open to legitimate pursuit, attack, or ridicule <fair game>

56.  Black's Law Dictionary (8th ed. 2004), defines fair, at Page 1788 as follows:

FAIR

fair,adj.1. Impartial; just; equitable; disinterested <everyone thought that Judge Jones was fair>

.2. Free of bias or prejudice <in jury selection, the lawyers tried to select a fair and impartial jury>.

57.  Merriam Webster Online Dictionary defines fair as an action marked by impartiality and honesty. It involves acting without prejudice, favoritism or self interest. Fairness is then a cardinal principal that a civilized society should advocate.

58.  Black's Law Dictionary defines fair as “free of bias or prejudice” and it would be most unfair for the Plaintiff’s Mechanics Lien Action to not be heard on the merits first by the Defendant’s in DISCOVERY , then only if absolutely necessary should the Court be burdened in having to hear the matter, moreover, for this Honorable Court to not encourage due process would be a prejudice to the Plaintiff. 

59.  This Honorable Court must provide time to allow the Plaintiff to be heard on the matter before the Court as requested, with all the substantive material contractual documents all evidence, regarding the Plaintiff’s Mechanics' Lien action pursuant to Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b), the technicality of a prescribed time limit, can easily be cured by granting of the requested Continuance.

60.  Please refer to the Maxim -Audi Alteram Partem -Latin; literally 'hear the other side'. This maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having first heard that person, the Plaintiff in this matter is requesting of the Court to be heard on this matter; a Mechanics' Lien Action pursuant to Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b), to its natural completion, which can only occur, if the Honorable Court grants an Order for a Continuance of the Plaintiff’s Mechanics' Lien Action. The Plaintiff comprehends principles of natural justice have evolved under common law as a check on the arbitrary exercise of power, and ensure that these powers are exercised in a just and fair manner. Common law, addresses this need to control the arbitrary exercise of powers through application of the principles of natural justice to the exercise of such powers. The decision of this Honorable Court should be in accord with the principles of natural justice.

61.  Reference:  May it please the Honorable Court the following is found at legal-dictionary.thefreedictionary.com

at the following address:

http://legal-dictionary.thefreedictionary.com/audi+alteram+partem

audi alteram partem

[Latin, hear the other side.] It embodies the concept in Criminal Law that no person should be condemned unheard; it is akin to due process. The notion that an individual, whose life, liberty, or property are in legal jeopardy, has the right to confront the evidence against him or her in a fair hearing is one of the fundamental principles of Constitutional Law in the United States and England.

62.  Further, may it please this Honorable Court the following principle of natural justice is found at wikipedia.org at the following address:

http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua

The other principle of natural justice is "Hear the other party" (Audi alteram partem) otherwise put "Reasonable opportunity must be given to each party, to present his side of the case".

The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed or appealed, but may be remitted for a valid re-hearing.

63.  May it please this Honorable Court the following is found at duhaime.org at the following address:

http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx

Audi Alteram Partem

Latin; literally 'hear the other side'.

The maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person.

Justice Bayley wrote, in Chapel v Child:

"I know of no case in which you are to have a judicial proceeding, by which a man is to be deprived of any part of his property, without having an opportunity of being heard."

A principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard.

Habeas corpus was an early expression of the audi alteram partem principle.

In more recent years, it has been extended to include the right to receive notice of a hearing and to be given an opportunity to be represented or heard at that hearing.

The expression received this endorsement from the US Supreme Court (Caritativo):

"Audi alteram partem - hear the other side! - a demand made insistently through the centuries, is now a command, spoken with the voice of the due process clause of the 14th Amendment, against state governments, and every branch of them - executive, legislative, and judicial - whenever any individual, however lowly and unfortunate, asserts a legal claim.

"It is beside the point that the claim may turn out not to be meritorious. It is beside the point that delay in the enforcement of the law may be entailed ...

"The right to be heard somehow by someone before a claim is denied, particularly if life hangs in the balance, is far greater in importance to society, in the light of the said history of its denial, than inconvenience in the execution of the law. If this is true when mere property interests are at stake ... how much more so when the difference is between life and death?"

REFERENCES:

·        Caritativo v People of State of California 357 US 549 (1958)

·        Chapel v Child 2 Cr. & J. 579 (1832)

64.  May it please this Honorable Court the following is found at wikipedia.org at the following address:

http://en.wikipedia.org/wiki/Audi_alteram_partem

Audi alteram partem

From Wikipedia, the free encyclopedia

Audi alteram partem (or audiatur et altera pars) is a Latin phrase that means, literally, hear the other side.[1] It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against him.[2]

"Audi alteram partem" is considered a principle of fundamental justice or equity in most legal systems. The principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party, to summon one's own witnesses and to present evidence, and to have counsel, if necessary at public expense, in order to make one's case properly.

[edit] History of use

As a general principle of rationality in reaching conclusions in disputed matters, "Hear both sides" was treated as part of common wisdom by the ancient Greek dramatists.[3]

The principle was referred to by the International Court of Justice in the Nuclear Tests case, referring to France's non-appearance at judgment.[4]

Today, legal systems differ on whether individuals can be convicted in absentia.

65.  Further to the second part, of the previously mentioned, Grewal, supra, at 116, three additional factors which come into play. May it please this Honorable Court the reference follows:

“Second, a compelling explanation for delay may result in a time extension where the arguable case is weak, and vice versa (Grewal, supra, at 116).”

66.  Similarly to what was stated above in Novotny v. Canada, 2000, supra, the Plaintiff Andre Murray took reasonable steps to seek advice and attempt to retain counsel regarding the decision of Honorable Court in the issuing of the Order of October 20, 2009. At no time did the Plaintiff abandon his intention to seek a setting aside of the impugned Order, nor in light of the circumstances, was the Defendant guilty of any inappropriate or unreasonable delay in bringing the within motion to Rescind the impugned Moncton Order of October 20, 2009. Further, Plaintiff Andre Murray took all known reasonable steps in an attempt to regain the Subject Contract documents, but the efforts where frustrated, by opposing Council (in the Moncton Court), which made retrieval of the subject documents impossible because of a standing Court Order of October 20, 2009.

67.  Lastly, the third part of the previously mentioned three additional factors found within Grewal, supra, at 116, which come into play,  may it please the Honorable Court the following excerpt:

“Third, there must be material before the Court upon which the Court can be satisfied both as to an explanation for the delay and that the case is an arguable one (Consumers" Association of Canada v. Ontario Hydro [No. 2] [1974] F.C. 460 (F.C.A.) at 463, as referred to in Grewal, supra, at 110).”

68.  The Defendant has filed voluminous material for the Court to consider regarding both as to an explanation for the delay and that this matter before the Honorable Court is an arguable one, please refer to Tab 29 of the Plaintiffs Record on Motion Book 1.

69.  Further, returning to application of the New Brunswick Rules of court, Rule 1.03(2) “to secure the just, least expensive and most expeditious determination of every proceeding on its merits”, may it please the Honorable Court, further, it is the Plaintiffs understanding that “Judgment on the merits” is a judgment made after consideration of the substantive, as distinguished from procedural issues in a case. Further to this point please find the following definition of “Merits”.

70.  Black's Law Dictionary (8th ed. 2004) at Page 3136 May it please the Honorable Court the defines merits as the following:

MERITS

merits. 1. The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure <trial on the merits>.

2.EQUITY(3) <on questions of euthanasia, the Supreme Court has

begun to concern itself with the merits as well as the law>.

71.  The rules of Court 1.03 (2) states “These rules shall be liberally construed”; please find the following definition of Construed.

 Black's Law Dictionary (8th ed. 2004) at Page 947 defines Construe as follows:

CONSTRUE

construe (k<<schwa>>n-stroo), vb. To analyze and explain the meaning of (a sentence or passage) <the court construed the language of the statute>.

Black's Law Dictionary (8th ed. 2004) at Page 2526 defines Just as follows:

JUST

just, adj. Legally right; lawful; equitable

72.  The Plaintiff when considering Rule 1.03 (2) and when interpreting same using the here within above ‘Definition’ language, Rule 1.03 (2) suggests same would read as follows:                                                                             These rules shall be liberally construed (analyzed and the meaning of explained ) to secure the just (Legally right; lawful; equitable), least expensive and most expeditious determination of every proceeding on its merits (The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure).

73.  Further, the Merriam-webster.com defines merit at the following address

(http://mw4.merriam-webster.com/dictionary/merits) as follows:

Main Entry: 1mer·it

Pronunciation: \?mer_?t, ?me_r?t\

Function: noun

1 a obsolete : reward or punishment due b : the qualities or actions that constitute the basis of one's deserts c : a praiseworthy quality : virtue d : character or conduct deserving reward, honor, or esteem; also : achievement

2 : spiritual credit held to be earned by performance of righteous acts and to ensure future benefits

3 a plural : the substance of a legal case apart from matters of jurisdiction, procedure, or form b : individual significance or justification

74.  Further, on the matter of the semantic ‘on the merits’ is defined by legal-dictionary.com at the following address:

http://legal-dictionary.thefreedictionary.com/on+the+merits on the merits

on the merits

on the merits adj.   referring to a judgment, decision or ruling of a court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome. Example: An attorney is two days late in filing a set of legal points and authorities in opposition to a motion to dismiss. Rather than dismiss the case based on this technical procedural deficiency, the judge considers the case "on the merits" as if this mistake had not occurred.

75.  The Plaintiff, requests that this Honorable Court keep with the ‘general’ direction contained in the New Brunswick Rules of Court; Rule 1.03(2). to secure a fair, just and balanced determination, based on the MERITS.

76.  In Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Justice H. H. McLellan stated his view regarding the discretion of the Trial Judge and also his view that the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits, (Please find at page 9 to page 17 ) as, follows:

 [Page 9]

          Ironically, such comments implying a reduction of a trial judge's traditional discretion in such matters have occurred while the new Rules of Court, in force since 1982, have been attempting to escape the bounds of excessive formalism. For example, the Rules now emphasize that:

1.03 (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits.

2.01 The court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise.

2.02 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 in dispute between the parties . . .

          It seems to me to be worthy particular emphasis that the phrase "should not be granted except for the most compelling reasons" are not found in the Rules of Court. Those words appear to me to be inconsistent with both the letter and the spirit of the Rules and the Judicature Act, which, for example, in s. 26(3) uses words such as "as to the Court seems just".

[Page 12]

Recent Civil Procedure Decisions

          In three recent cases the Court of Appeal has reversed me in rulings on civil prodedure [sic]. In my opinion those three reversals indicate that the Court of Appeal in deciding questions of civil procedure favoured form over substance when I did not.

          In Sullivan v. Irving-Zed (Judith) Photography et al. reflex, (1994), 149 N.B.R. (2d) 300, the Court of Appeal reversed a decision to allow a claims manager of the defendant's insurance company (who was paying for the defence and would pay for any settlement or award) to be present at the examination for discovery of the plaintiff in an action arising out of a motor vehicle accident. Although the insurer would have to pay, the Court of Appeal decided the insurer "is not a party and is not entitled to be present". That strikes me as favouring form over substance.

          In Sivret v. N.B. Power (January 3, 1995), reversing 146 N.B.R. (2d) 40, the Court of Appeal took the view that until death is proved by certificate or direct evidence or in compliance with the Presumption of Death Act, death cannot be inferred. Thus the Court of Appeal allowed a boy's litigation guardian to continue to act in that capacity more than one year after the boy fell from a bridge over the St. John River and became "missing".

          In Sivret the Court of Appeal also enforced the disputed acceptance by the litigation guardian of an Offer to Settle claims relating to the boy's suffering, future loss of income and other damages from an accident. Most of the boy's claim would die with him. That Offer to Settle had been made before the boy fell from the bridge and went "missing".

          Again, I think the message from the Court of Appeal Sivret is to favour form over substance.

[Page 13]

          In R. v. Fraser (February 22, 1995) the Court of Appeal allowed an appeal by the Crown and criticized me for raising a Limitations of Actions Act defence for an unrepresented defendant who was being sued by the Crown to collect a very old student loan. The Court of Appeal cited no cases but said:

. . . the cases say that a judge should not raise such a defence of his or her own volition. See Mew, The Law of Limitations, p. 54.

          That book by Mew does makes that point but cites in support of it only two cases. Those two cases are extremely ancient English cases from 360 years ago, Thursby v. Warren (1629), Cro. Car. 159, 79 E.R. 738, and Stile v. Finch (1634), Cro. Car. 381, 79 E.R. 932.

          For reasons that are not apparent in Fraser, the Court of Appeal ignored the well-known provision in the Interpretation Act which lays down the modern rule that:

4.         Every Act shall be judicially noticed, without being specially pleaded.

          Fraser also strikes me as another example of the Court of Appeal favouring form over substance. Ironically, counsel for the successful appellant in Fraser is one of the counsel for Petro-Canada in this case.

          Despite those three recent decisions from the Court of Appeal which I think favour form over substance in procedural matters, there are two recent indications that the Court of Appeal is now taking another approach.

          In October 1994, before the Court of Appeal decided Sivret and Fraser, I allowed a motion in this action for an interim injunction restraining Petro-Canada from proceeding against Daly under its power of sale until 30 days after the trial judgment in this action. In doing so because of special circumstances, I departed

[Page 14]

from the usual practice and did not require Daly put up extra security. Daly et al. v. Petro-Canada et al. (1994), N.B.R. Advance Sheets, January 9, 1995, page 7.

          That ruling was not interfered with by the Court of Appeal.

          Last month the Court of Appeal upheld an unusual discretionary order by another judge that extended the time for adding a defendant after the expiry of a limitation period because of the particular circumstances of the case. That case is York Equipment Ltd. v. Dabrowski Estate (April 6, 1995).

          As I see it, in York Equipment the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits.

          Also the Court of Appeal particularly emphasized in York Equipment that:

We repeat the standard of review adopted by this Court in past cases, and as was said over a century ago in Gelding v. The Wharton Saltworks Company (1876), 1 Q.B.D. 374 (C.A.) at p. 375:

. . . on a question which depends on the discretion of the judge, the Court of Appeal does not in general interfere with that discretion. Not that the Court of Appeal has not complete jurisdiction over such cases, or that the decision of the Court below would not be overruled where serious injustice would result from that decision; but, as a general rule, the Court of Appeal declines to interfere.

          As far as I can determine that April 6, 1995 decision of York Equipment is only the third time that the New Brunswick Court of Appeal has ever cited or expressly followed that 1876 English Court of Appeal decision, Golding v. Wharton Saltworks. I am pleased to

[Page 15]

see Golding reaffirmed as representing "the standard of review adopted by [the New Brunswick Court of Appeal] in past cases".

          The other two cases in which Golding was cited in the law reports of this province as far as I can determine are the conflicting decisions Cheminski et al. v. Engineering Consultants Ltd. et al. (1971), 3 N.B.R. (2d) 760 and Collier v. Collier reflex, (1991) 119 N.B.R. (2d) 260.

          Cheminski was an appeal from an application to strike out a portion of a statement of defence. After referring to Golding Mr. Justice Hughes, as he then was, (Limerick, J.A. and Bujold, J.A. concurring) at p. 763 quoted with approval "as a correct statement of the law applicable to appeals such as the present" the English Supreme Court Practice.

          The "standard of review" approved in Cheminski was much broader than in Golding. The "Cheminski standard of review" was set out at page 770 as follows:

"There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the Judge to make, unless it be shown that he exercised his discretion under a mistake of law, or in disregard of principle, or under a misapprehension as to the facts; or that he took into account irrelevant matters or failed to exercise his discretion, or that his order would result in injustice; and the Court will assume that the Judge properly exercised his discretion unless the contrary is shown."

          Collier was an appeal of a case of unequal division of marital debt. Mr. Justice Rice described what I will call the "Collier standard of review" for the Court of Appeal (Stratton, C.J.N.B. and Hoyt, J.A. concurring) at pp. 265-266 as follows:

[Page 16]

          Where an exercise of discretion is challenged, this court has stated on several occasions that it would not interfere with such exercise unless it is manifestly wrong. Newcastle (Town) v. Mattatall, Porter and Harris 1988 CanLII 127 (NB C.A.), (1988), 87 N.B.R. (2d) 238; 221 A.P.R. 238; Van Wart v. La-Ko Enterprises Ltd. (1981), 35 N.B.R. 256, 88 A.P.R. 256.

          A similar principle was enunciated by the British Columbia Court of Appeal in Maddison v. Bain, [1928] 3 D.L.R. 33, where Masten, J.A. at p. 34 said:

. . . It is not usual for a Court of Appeal to set aside orders in the exercise of a discretion. The first case of this nature is Golding v. Wharton Saltworks Co. (1876), 1 Q.B.D. 374; wherein the Court of Appeal unanimously declared that it would not do so unless they could say that the case was so 'extreme' and the circumstances so special that a 'serious injustice' would result if the order complained of was sustained, and cf. Knowles v. Roberts (1888), 38 Ch. D. 263, where Cotton, L.J., held, at p. 268, that 'material injury' and 'very great prejudice' had been occasioned by order and therefore it was set aside.

This view of non-interference with judicial discretion has been constantly followed and in a very striking way in a case reported no later than December 9 last, Maxwell v. Keun (1927), 44 Times L.R. 100, at p. 101, in the English Court of Appeal and they said they would not do so unless there was what Atkin, L.J., declared had been occasioned by the order of the Lord Chief Justice, viz., 'a very substantial injustice'."

          The judge of first instance made a discretionary order with respect to an unequal division of marital debts. As I am not able to say that in exercising his discretion the trial judge was manifestly wrong or that any substantial injustice resulted, I would not intervene.

[Page 17]

          In both Collier and York Equipment the Court of Appeal ignored Cheminski. I interpret Collier and York Equipment as standing for the premise that "Cheminski standard of review" is no longer the law in this province.

          In my view York Equipment also indicates that the Court of Appeal is now emphatically returning to its position in Collier and reaffirming the "Collier standard of review". It is accepting that the law has recognized for more than a century that a court of appeal should not interfere with the exercise of the discretion of a trial judge unless "the trial judge was manifestly wrong" or "substantial injustice" or "serious injustice would result".

          That "Collier standard of review" was concurred in by Stratton, C.J.N.B., in Collier. In my view, his concurrence minimizes the effect of his comment in Atlantic Speedy Propane that discretionary procedural relief "should not be granted except for the most compelling reasons" which echoed Miller, J. in McCarthy that "as with all discretionary powers, [it] should not be granted except for the most compelling reasons".

          In my opinion in view of Collier and York Equipment those earlier words by Chief Justice Stratton in Atlantic Speedy should not be considered as implying that the standard of review of judicial discretion in a matter of civil procedure is to verify the existence of "most compelling reasons".

          As I see York Equipment, the Court of Appeal is now confirming that it is putting substance over form in matters of civil procedure. Accordingly, in my opinion the "form over substance" implications for civil procedure of the Court of Appeal decisions of Sullivan, Sivret and Fraser have been nullified.

77.  The Plaintiff on the grounds as stated found here within above in paragraph 35 inter alia requests that the Court favor substance over form in this matter regarding the requested Continuance to overcome the technical time limitations, of the Mechanics Lien Act.

78.  In Western Surety Co. v. National Bank of Canada, 2001 NBCA 15 (CanLII) J. ERNEST DRAPEAU, J.A. stated the following regarding application of Rule 2.02 (Please find at paragraph 91) as follows:

[91]   Rule 2.02 of the Rules of Court enjoins courts to overlook procedural errors and to take appropriate measures to secure the “just determination of the matters in dispute between the parties”.

79.  The word ‘enjoins’ was of particular note to the Plaintiff, so may it please the Honorable Court the definition is provided below from Black's Law Dictionary (8th ed. 2004) , Page 1608 describes ENJOIN as follows:

enjoin, vb. 1. To legally prohibit or restrain by injunction <the company was enjoined from selling its stock>. [Cases: Injunction 1. C.J.S. Injunctions §§ 2–4, 12, 14, 22, 24, 166.] 

2. To prescribe, mandate, or strongly encourage <the graduating class was enjoined to uphold the highest professional standards>. — Also spelled injoin. — enjoinment (for sense 1), n. —

enjoinder (for sense 2), n.

Rule 2.01 and 2.02

80.  Rule 2.01 and 2.02 of the Rules of court (Please find provided) as follows:

2.01 The Court Dispensing with Compliance

The court may at any time dispense with compliance

with any rule, unless the rule expressly or impliedly provides

otherwise.

2.02 Effect of Non-Compliance

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 in dispute

between the parties. In particular, the court shall not set

aside any proceeding because it ought to have been commenced

by an originating process other than the one employed.

81.  In Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB C.A.)  Justice TURNBULL, J.A. stated the following regarding the application of Rule 2.01 (Please find beginning at the end of 6 through to page 8) as follows:

          Did the trial judge err in refusing to grant the amending motion proposed by Juniberry and Mr. Hong? Rule 27.10 begins with a threshold test which a court must consider before

[Page 7]

deciding whether to permit an amendment to the pleadings. That is, would the granting of the amendment result in prejudice which cannot be compensated for by costs or an adjournment? If no such prejudice would result, then the Court may grant the motion, and if so, on such terms "which are necessary for the purpose of determining the real questions in issue". Rule 2.02 further directs:

... all necessary amendments shall be permitted ... at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties.

          These are rules of procedure as opposed to the substantive law which defines substantial legal rights and claims. The rules are the vehicle that enables rights to be delivered and claims to be enforced. As such, a Court should interpret and apply the rules to ensure, to the greatest extent possible, that there is a determination of the substantive law unless the application of the rules would result in a serious prejudice or injustice. Accordingly, amendments to pleadings are generally allowed. That is the reason for the use of such phrases as "determining the real questions in dispute" in Rule 27.10 and "just determination of the matters in dispute" in Rule 2.02. As a general principle, therefore, the rules of procedure should not be used to prevent the delivery of rights; nor should they be used to preclude the enforcement of claims which are derived from the substantive law.

          While leave to amend pleadings is a discretionary right, the exercise of that discretion is subject to review on appeal. See Moore v. State Farm Fire & Casualty Company (1982), 42 N.B.R. (2d) 667 (C.A.).

[Page 8]

          In reviewing a trial judge's refusal to permit an amendment to pleadings, Stratton, J.A., as he then was, in Moore, approved an appeal court's review of the following questions to determine if an injustice resulted from the trial judge's decision. Did the proposed amendment raise a new issue or was it a "proper and permissable" extension of a claim by the party seeking the amendment? Could it be fairly argued that if the requested amendment were allowed it would (to which I would add, or it should) have taken the other party by surprise? Did the amendment deprive the other party of "any defence [or claim] which would have otherwise been available to it," or result in prejudice, "which cannot be compensated for by costs or an adjournment"?

82.  A corresponding question, relative to the matters before this Court is found referred to, found mentioned above, the Court hearing of the matter of Juniberry Corp. v. Triathlon Leasing Inc, supra, further, in that matter, the granting of the requested Continuance, would have deprived the other party of "any defence [or claim] which would have otherwise been available to it," or result in prejudice, "which cannot be compensated for by costs or an adjournment".

83.  Above paragraph has a question - answer should be no; the Plaintiff asserts that as a general principle, the Rules of Court should not be used to prevent the delivery of rights; nor should they be used to preclude the enforcement of claims, which are derived from the substantive law. Moreover, a Court should interpret and apply the Rules of Court to ensure, to the greatest extent possible, that there is a determination, as illustrated within Juniberry Corp. v. Triathlon Leasing Inc, supra,  unless the application of the rules would result in a serious prejudice or injustice.

84.  “The rules are the vehicle that enables rights to be delivered and claims to be enforced. As such, a Court should interpret and apply the rules to ensure, to the greatest extent possible, that there is a determination of the substantive law unless the application of the rules would result in a serious prejudice or injustice.” In a way that is appropriate to these particular circumstances, the granting of a Continuance is generally allowed, when requested. “That is the reason for the use of such phrases a: determining the real questions in dispute" in Rule 27.10 and "just determination of the matters in dispute" in Rule 2.02. As a general principle, therefore, the rules of procedure should not be used to prevent the delivery of rights; nor should they be used to preclude the enforcement of claims which are derived from the substantive law.”

85.  In LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) RIDEOUT, J. stated regarding applying Rule Rules 1.03(2); 2.02; 3.02(1) and (2) at paragraph 11 to 19 as follows:

[11]         Rule 16.08(1) requires that once a Notice of Action with Statement of Claim Attached has been filed with the Clerk of the appropriate Judicial District, it must be served within six months.  In his motion Mr. LeBlanc relies on Rules 1.03(2); 2.02; 3.02(1) and (2) which read: 

1.03 Interpretation

…

(2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits.

2.02 Effect of Non-Compliance

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 in dispute between the parties. In particular, the court shall not set aside any proceeding because it ought to have been commenced by an originating process other than the one employed.

3.02 Extension or Abridgment

(1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules.

(2) A motion for extension of time may be made either before or after the expiration of the time  prescribed. 

[12]         Mr. Bastarache in his motion relies upon Rule 26.01(a) which provides:

26.01 Where Available

A defendant who is not in default under these rules or under an order of the court, may apply to have the action dismissed for delay where the plaintiff has failed

(a) to serve his Statement of Claim on all the defendants within the time limited for so doing

[13]         In cases of this nature, as a general comment, it is accepted that the Court should look to see if there is a justifiable excuse for the delay and what prejudice might accrue to either party.  In the latter instance regard must be had to the possible prejudice to the Defendant’s action due to things like the unavailability of witnesses, failing memory, loss of documentation. 

[14]         Mr. LeBlanc has referenced a number of authorities. In Martin v. Goodine (1983), 53 NBB (2d) 52 (QB) the Court was faced with a situation in which a lawyer was lax in pursuing the action.  In fact, the lawyer failed to serve the Defendant within the six month period.  Deschênes, J. as he then was said at paragraphs 33 and 34:

33      In my view, if the plaintiff is successful in establishing that the failure to comply with Rule 16.08(2) is not as a result of his personal involvement but rather the result of laxity on the part of his solicitor and that no prejudice to the defendant has occurred, the conduct of his solicitor should be treated as a neutral factor and the court in such circumstances should concern itself primarily with the rights of litigants and not the conduct of solicitors.

34      On the other hand, if a defendant's position has been prejudiced as a result of the failure on the part of the plaintiff's solicitor to comply with Rule 16.08(2) or failure to proceed without delay to present a motion for an extension order, I fail to see how a defendant should be visited by the consequences of the plaintiff's solicitor's mistakes; under such circumstances, as between litigants, the plaintiff stands in a better position than the defendant by reason of the fact that the former would probably have a cause of action against his solicitor whereas the defendant must live with the prejudice caused.

[15]         Also, in Canada v. Pelletier reflex, (1983), 58 NBR (2d) 184 (QB) the Court stated at paragraphs 6 and 7:

 6      On the other hand, counsel for the plaintiff submitted that the plaintiff would itself suffer serious prejudice if the court did not exercise its discretionary power in the present case and allow service of the writ of summons on the defendant. He relied on the following case law in support of his claim: Brown v. Humble, [1959] O. R. 586; Matheus v. Wikes, [1960] O.W. W. 3369; Martin v. Goodine (1983), 53 N.B.R.(2d) 52; 138 A.P.R. 52; Moffat v. Rowding, 14 D.L.R.(3d) 186. In particular, he relied on the case of Simpson v. Saskatchewan Government Insurance Office, 65 D.L.R.(2d) 328, and cited the following passage from page 333 of the decision:

"In an application to renew a writ of summons the basic question which faces the court is, what is necessary to see that justice is done? That question must be answered after a careful study and review of all the circumstances. If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. This should be done even if the only reason for non-service is the negligence, inattention or inaction of the plaintiff's solicitors and notwithstanding that a limitation defence may have accrued if a new writ was to be issued. If the non-service of the writ was due to the personal actions of the plaintiff, that, of course, would be a fact to be considered by the court. Each case should be considered in the light of its own peculiar circumstances and the court, in the exercise of its judicial discretion, should be determined to see that justice is done."

7      The above-mentioned cases clearly reveal that a court has a fairly wide discretionary power to extend the time for service of a writ of summons and to allow service of the writ even if the action is statute-barred. It is the court's responsibility to consider all of the circumstances which caused the delay in serving the originating process, the length of the delays and the reasons for them including counsel's negligence or carelessness. The rule which emerges from these cases unequivocally recognizes that the court's main concern must be to see that justice is done and to make certain that the extension of time for service does not prejudice or work any injustice to either of the parties. If, for example, a defendant discharged a third party from his share of the liability towards the plaintiff after expiry of the time for service, the extension of the period would then prejudice [*page188] the defendant's defence of his rights against the plaintiff by preventing him from asserting that third party's liability. Consequently, it is the court's responsibility to decide whether there is an injustice caused to the plaintiff by refusing the extension of time or whether the extension of time causes an injustice to the defendant by preventing him from fully asserting every possible ground of defence at his disposal in defence of the action. In the present case, it is true that a period of almost three years has passed since the expiry of the twelve month period following the issue of the writ of summons, as provided for by the old Rules of Court. This is, in fact, a significant delay. Furthermore, it is clear that the defendant is in no way responsible for the plaintiff's delay in having the writ of summons served. The only cause for the plaintiff's delay is the negligent failure of its counsel to take the necessary steps within the required time. The defendant submitted, on the other hand, that the delay caused her prejudice in that during that delay, she contracted other debts in order to further her studies. However, she did not indicate how the delay had interfered with her asserting all possible grounds of defence against the claim brought against her or how she was deprived of a defence which she might otherwise have been able to assert. Moreover, it is hard to understand how the fact of having succeeded in finishing her studies, even though she contracted other debts, could have caused her an injustice. The basis of that submission is far from clear. One might rather think that the plaintiff's delay in asserting its claim gave the defendant a real advantage by permitting her to finish her university studies.

[19]         I am satisfied that the delay in service was caused by the lawyer which in the circumstances should be treated as a neutral event.  I am also satisfied that the Defendant’s insurer has not and will not suffer any prejudice if the Plaintiff’s motion is granted.  However, prejudice will occur to the Plaintiff if the time period for service is not extended.  Therefore justice will be done if the time period for service is extended.

86.  As found provided above, in LeBlanc v. Bastarache, supra, the Honorable Court must consider: “what is necessary to see that justice is done?” The answer may be, if the refusal to grant the Plaintiff’s request for Orders of a  Continuance of the subject Action would do an obvious and substantial injustice to the Plaintiff, while to permit it is not going to cause any substantial injustice to the Defendant or prejudice the Defendant's defence, then the requested Continuance may be granted.

87.  The rule which emerges from these cases unequivocally recognizes that the Court's main concern must be to see that justice is done and to make certain that the requested Orders of a Continuance (as in this case) does not prejudice or work any injustice to either of the parties.

88.  In East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003 NBQB 268 (CanLII) Justice RIORDON, J. stated the following regarding Rule 1.03, Rule 2.02,. and Rule 1.03(2) at paragraph 25 – 28 as follows:

[25]                       I believe from my review of the material this is a situation where a Court must and should apply Rule 1.03 and Rule 2.02.  Rule 1.03(2) says: These rules shall be liberally construed to secure the just, and I emphasize just, determination of every proceeding on its merits.  It also goes on to say least expensive and most expeditious determination.  Rule 2.02 clearly sets out the effect of non-compliance with the Rule and I refer to Rule 2.02.  It states:

“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 proceedings, upon proper terms, to secure the just determination of the matters in dispute between the parties. ...” 

[26]                       I believe that this is a situation where through no fault of the named defendants, by reason of an oversight in the office of their solicitor, that relief should be permitted so as to ensure and to secure the just determination of the matters in dispute.   The only way to do that when one looks at the nature of the claim, what has transpired and the matters in dispute and that these defendants who filed a Statement of Defence with the Clerk of the Court well within the time prescribed, is to allow these defendants to defend the claims brought against them and set aside the noting in default and the judgment. 

[27]                       I believe that the reasons of Chief Justice Hughes in the decision of Brunswick International (Canada) Limited v. Albert, (1975), 12 N.B.R. (2d) 296 at page 305 are applicable in the present instance.   Chief Justice Hughes in that case stated in the concluding paragraph:

“...I am of the opinion that the failure of the defendant’s solicitor in presenting proper material to set aside a judgment regularly entered resulted from a misconception of the necessity of setting out facts upon which the defence claimed by the defendant is based and because it would work a great injustice on the defendant, if he has in fact the defence to the action, if he were compelled to satisfy a judgment which was entered because of a solicitor’s error, especially where the practice in this Province has not been firmly established.” 

In this case there was an error made by the solicitor and I am of the view that it would not be fair to not allow the motion in such circumstances and allow the defendants in question the opportunity to defend by reason of the fact of an oversight by their solicitor or someone in their solicitor’s office.

[28]                       For the foregoing reasons I set aside the noting in default.  I set aside the default judgment.  In my view as this matter should have been resolved without the necessity of a contested application I make no order as to costs and I make no order as to terms or conditions pursuant to Rule 21.08.  The application and motion is allowed and the default judgment and the noting in default are set aside.

89.  The Plaintiff has noted a similarity to the above provided case, in East Texas Distributing Inc. v. Video Solutions, supra, it would not be fair to disallow the Continuance, in such circumstances as before this Honorable Court.

90.  The Plaintiff contends that as provided above, in East Texas Distributing Inc. v. Video Solutions, supra, this is a situation where this Honorable Court must and should apply Rule 1.03 and Rule 2.02. Furthermore, as above “Rule 1.03(2) says: These rules shall be liberally construed to secure the just, and I emphasize just, determination of every proceeding on its merits.  It also goes on to say least expensive and most expeditious determination.  Rule 2.02 clearly sets out the effect of non-compliance with the Rule” . “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,” As in the case before this Court, where the Plaintiff Andre Murray finds himself challenged by time limitations as prescribed by the Mechanics Lien Act, which, can be cured by the granting of a Continuance, so that this matter may be heard on it’s merits.

91.  In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A. LaVIGNE stated the following regarding granting an extension of time.;                               (Please see at paragraph 15 – 42), as follows: 

ANALYSIS AND DECISION 

15.                                       Rule 16.08(1) of the Rules of Court states:  

                                                                      (1) Where an action is commenced by issuing a Notice of Action with Statement of Claim Attached, it shall be served within 6 months thereafter.        

16.      Rule 3.02 states:  

   3.02    (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these Rules.                            

      (2) A motion for extension of time may be made either before or after the expiration of the time prescribed.                             

            ...

 17.      Rule 2.02 clearly stipulates that failure to comply with the Rules must be treated as an "irregularity", which can be remedied to secure the just determination of the matters in dispute. 

18.      Rule 1.03(2) provides that this Court should apply the Rules so as to secure a just, least expensive and most expeditious determination of every proceeding on its merits.

19.      The main concern in cases such as this is to see that justice is done and to make certain that any extension of time for service does not prejudice or work injustice to the parties involved.

20.      I agree with counsel for the Defendant Knowlton that the onus is on the party seeking to have the Court exercise its discretion to extend the time, to satisfy the Court that in the circumstances of the particular case, the interest of justice calls for such an action.

21.      The test to be applied when considering such an application is that of the substantial injustice test which was put forth by Mr. Justice Ayles in the Court of Appeal decision of Bridges v. Daeres reflex, (1986), 64 N.B.R. (2d) 412, which test was also accepted as being correct by our Court of appeal in the more recent case of Hill v. Mattatall, [1996] N.B.J. No. 193.

 22.      In Hill, supra, Chief Justice Hoyt as he then was, writing for the majority stated as follows at paragraphs 8, 9, 10 and 12:

     ¶ 8      A review of the New Brunswick cases reveals that New Brunswick courts do not take as strict a view of time limits as do, for example, the Ontario courts.  In Ontario, there is a presumption of prejudice in favour of the responding party that the late party must overcome.  In New Brunswick, such prejudice is taken into account, but is not the determinative factor.

¶ 9      In Bridges v. Daeres reflex, (1987), 83 N.B.R. (2d) 331, this Court upheld a judge's refusal to remedy a ten year delay.  Ayles, J.A. formulated the test to be applied when considering such applications.  He said at p. 337:

The test as set out above is a double one: the failure to renew must do an obvious and substantial injustice to Mrs. Bridges while at the same time its renewal must not work any substantial injustice to Mr. Daeres as to his defence. ...                                            

¶ 10      As Jones, J. noted in Spencer v. King and Mockler, Allen & Dixon reflex, (1984), 59 N.B.R. (2d) 162, the use of the word "just" in Rule 3.02 renders the remarks of Culliton, C.J. in Simpson v. Saskatchewan Government Insurance Office (1967), 65 D.L.R. (2d) 324 relevant to Rule 3.02 applications. Culliton, C.J. said at p. 333:

In an application to renew a writ of summons the basic question which faces the Court is, what is necessary to see that justice is done?  That question must be answered after a careful study and review of all the circumstances.  If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed.  This should be done even if the only reason for non-service is the negligence, inattention or inaction of the plaintiff's solicitors and notwithstanding that a limitation defence may have accrued if a new writ was to be issued.  If the non-service of the writ was due to the personal actions of the plaintiff, that, of course, would be a fact to be considered by the Court.  Each case should be considered in the light of its own peculiar circumstances and the Court, in the exercise of its judicial discretion, should be determined to see that justice is done.        

      In Canada v. Pelletier reflex, (1984), 58 N.B.R. (2d) 184, Daigle, J., as he then was, considering a three year delay, applied Simpson and allowed the application.  Landry, J. in Jardine v. Kent General Insurance Corp. et al. reflex, (1988), 90 N.B.R. (2d) 213, applied a "severe prejudice" test in declining to remedy a four year delay.  I can see no difference between "severe prejudice" and "substantial injustice".  More recently, McLellan, J. in Gifford v. Phalen Estate, [1995] N.B.J. No. 586 (QL), using the "substantial injustice" test, allowed an application to extend the time to serve a Notice of Action and Statement of Claim after a five year delay from the issuance of the Notice of Action.

...

¶ 12      In my view, the Judge's use of the "substantial injustice" test articulated in Bridges was correct.  Nor am I able to conclude that he was wrong in determining that the appellants would suffer no substantial injustice.  The length of delay, of course, is a factor to consider, but not the only factor.  Undoubtedly, the longer the delay, the more prominent it becomes in assessing the various factors that could cause a substantial injustice.   A solicitor's delay, unless the delay has an oblique motive, for example, to gain some tactical advantage, is a neutral factor in assessing the injustice each party would suffer.

 23.      A motion for leave to appeal Hill was dismissed by the Supreme Court of Canada on January 9^th, 1997. (see reflex, (1997), 183 N.B.R. (2d) 320).

 24.      I return to the facts of this case. The insurance company was put on notice as early as December 11, 2000.  They were aware that the Plaintiff had retained legal counsel to pursue the claim.  They did make an investigation and an informed decision was made to close their file on April 10, 2001 after denial of liability.  The two-year limitation period had not even expired by then.  There is no onus on a plaintiff to do anything before the two years are up and he has a further 6 months to serve the documents.

25.      This is not a case where the Defendants’ insurance companies were unable to obtain evidence or prevented from making an investigation in a timely manner.  They were put on notice early on and they did have a chance to make an investigation.

 26.      There is no evidence of there being any witnesses to the accident other than the parties themselves.

 27.      The delay in this case is quite short when compared to some of the delays in the cases mentioned in the Hill, supra, and Savoie, infra, decisions.  The Plaintiff had until to August 1^st, 2002 to serve the documents.  The motion for an extension of time was filed in October 2003, that is fifteen months later.

 28.      Furthermore, I conclude that sometime between December 2002 and January 2003, the Plaintiff put the Defendants on notice again and Mr. Kearnan knew or should have known at that time that a Notice of Action with a Statement of Claim had been properly filed and that the Plaintiff intended to continue her claim against Mrs. Knowlton.  I conclude that at this time a reasonable person would have had reason to believe that a claim would be advanced against his insured.  In the circumstances, Mr. Kearnan should have advised his insured Mrs. Knowlton.  This would have prevented her from destroying her file in the spring of 2003.  Mrs. Knowlton stated in her affidavit that she had not heard from anyone since March 29, 2001.

 29.      Mr. Kearnan chose to close his file again in July 2003.

 30.      Mrs. DesChênes was aware in January 2003 that she had failed to serve the documents in time.  She did not provide any explanation for the 9-month delay in bringing this motion for an extension order.

 31.      I am satisfied on the evidence that the failure to comply with Rule 16.08(2) and the failure to proceed without delay to present a motion for an extension order is the result of laxity on the part of Mrs. DesChênes.  Counsel for Mrs. Knowlton argued that the Plaintiff should have asked questions and made sure that her solicitor did the work.  I cannot agree with this.  As far as the Plaintiff was concerned, the action was filed on February 1, 2002.  She had no way of knowing that the documents had not been served or that something was wrong with the proceedings.  I find no misconduct on the part of the Plaintiff personally.  Such delay by a solicitor as opposed to a delay by a party must be considered a neutral factor in assessing any prejudice or injustice.

 32.      I have reviewed the documents that Mrs. Knowlton has destroyed.  Many of these, if they were admitted, would have little, if any, relevancy to the issue.  There is no suggestion that the paramedic or the witness who drove Mrs. Agnew home or the owner of the residential property could not be found.  Items mentioned from d. to g. would be used in argument, if at all, and there is no reason why copies of d, f. and g could not be obtained if necessary. 

 33.      As for Mr. Kearnan, he has not destroyed his file.  He states that he has been unable, to date, to locate all the file notes and materials.  There is very little evidence of what sort of documents are missing or since when they are missing or why they are missing.  Mr. Kearnan admitted that he originally closed his file in April 2001.  If documents were destroyed at that time, the Plaintiff cannot be blamed for this, as it was not reasonable in the circumstances to close the file at that time.

 34.      The insured and her insurer should have taken steps to make sure that information relevant to its defense was maintained.

 35.      In Savoie V. Dumont, [2001] N.B.J. No. 171, Mr. Justice Glennie reviewed in great depth the jurisprudence concerning this subject matter and it would be of no use to repeat this exercise.  In Savoie, the plaintiff had been injured in two motor vehicles accident. She settled the second accident.  Eight years after the first accident, she moved for an extension of time to effect service.  The defendant was not aware of the plaintiff’s claim until they received notice of the motion. Justice Glennie dismissed the motion.  The court considered that: the defendant’s insurer had not been put on notice, the defendants had not been able to conduct any investigation or independent medical evaluation, there were overlapping damages from two accidents, and the plaintiff had settled the second accident in complete disregard for the first accident.  The Court found that these factors, taken cumulatively, caused substantial injustice to the defendants.

 36.      In paragraph 5, Mr. Justice Glennie acknowledges that in two other similar motions concerning the same solicitor the applications to extend time were allowed. He explains the difference between the cases as follows:

5.   In Gifford and in Hill, the applications to extend time were allowed.  It must be observed that in each of those cases, there existed two critical factors which are not present in the case at bar.  In each of those cases, the respective plaintiff's had only been involved in one accident and in each of those cases the insurers of the defendants had been put on notice of the plaintiff's claim for damages for personal injuries.

  37.      Justice Glennie, throughout his decision, puts much emphasis on the fact that the defendants in Savoie were never put on notice.  

 38.      Here, the insurers were put on notice and they were able to carry out their investigation.  There is no evidence of another motor vehicle accident where the Plaintiff would have suffered injuries.  I refuse to consider the hearsay evidence contained in paragraph 7 b. of Mrs. Knowlton’s affidavit reproduced above as constituting such evidence.  Furthermore, there is nothing to suggest that the medical evidence will be affected by the delay.

 39.      In Hill, supra, liability was not in issue.  In the present case, liability is in issue; however, there was no mention of any witnesses to this accident other than the parties themselves, all of who are still available to testify.

CONCLUSION AND DISPOSITION

 40.      In the present matter, the refusal to extend time for service will cause obvious and substantial injustice to the Plaintiff.  The extension of time will likely cause some prejudice to the Defendants and their insurer.  I do not however, think that it will cause substantial injustice to the Defendants or their insurers.

 41.      Each case must turn upon its own facts.  The obligation of the Court is to see that justice is done.  In my view, the facts of this case are sufficient to enable the Court to use the discretionary powers granted to it in Rule 2.02 and 3.02 in order to secure the just determination of the matters in dispute between the parties.

 42.      I hereby grant to the Plaintiff an extension of 60 days to serve the Defendants herein with the Notice of Action and Statement of Claim.

92.  As stated above, in Agnew v. Knowlton, supra, the Plaintiff comprehends that each case should be considered in the light of its own peculiar circumstances and this Honorable Court, in the exercise of its judicial discretion, should be determined to see that justice is done. The interest of justice calls for a granting of the Continuance. The test which applies to the case before the Court now is as follows:

 “If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed.”

93.  Though above mentioned Case is focused on granting a extension of time to serve a Notice of Action and Statement of Claim the principle still applies, regarding the granting of a Continuance as follows:

1) refusal to grant the Continuance would do an obvious and substantial injustice to the moving party,

94.  To ensure that justice is done in this matter before the Honorable Court the Continuance as must be granted as requested, otherwise the Plaintiff will not be able to proceed to DISCOVERY and or if necessary have the matter heard before the Honorable Court.  For the Honorable Court to disallow the Continuance as requested based, on a technicality, which can be procedurally cured by application of the Court discretion pursuant to the Mechanics Lien Act, Moreover, Rule of Court 1.03(2) provides that this Court should apply the Rules so as to secure a just, least expensive and most expeditious determination of every proceeding on its merits.  Substantial injustice will occur if the Plaintiff does not receive a determination of the Mechanics Lien Act, Action before the Court on its merits.

 2) while to permit it is not going to work any substantial injustice to the respondent or prejudice the respondent 's defence,

95.  The Defendant Betty Rose Danielski current Title holder of subject Property, as identified in this mechanics Lien Action as the subject property has not yet been sold, and remains in the Defendants name. The Granting of the Orders for a Continuance will not work any substantial injustice to the Defendant or prejudice the Defendant 's defence.

96.  As stated in Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.) by Justice LASKIN J.A. at paragraph 16, as follows:

[16] Third, prejudice that will defeat an extension of time for service must be caused by the delay.  Prejudice to the defence that exists whether or not service is delayed ordinarily is not relevant on a motion to extend the time for service.

97.  In interest of justice, as above “then the writ should be renewed”, in this case the Continuance should be granted, that the Parties to this Action may DISCOVER each other.  DISCOVERY is expected by the Plaintiff in this matter to be significant and preclude any intentions to pursue this matter any further through Court of Queens Bench.

98.  Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII) Justice Benjamin B. Taylor stated the following regarding the law for extending the time for service: (please find at paragraph 32 – 38), as follows:

4)      Has the Defendant Been Prejudiced?

[32] In Chiarelli, Laskin J.A. stated the law for extending the time for service under Ontario Rules, most of which rules are the same as ours. At paragraph 12:

...the guiding principles remain...[a]s Lacourciere J.A. said in Laurin v. Foldesi (1979), 23 O.R. (2d) 331, 96 D.L.R. (3d) 503 (C.A.): “The basic consideration...is whether the [extension of time for service] will advance the just resolution of the dispute, without prejudice or unfairness to the parties.” And, the plaintiff has the onus to prove that extending the time for service will not prejudice the defence.

[33]               Although it is up to the plaintiff to prove no prejudice to the defendant from the extension, courts recognize the obvious problem of proving a negative and want to see the assertion of prejudice has some firm basis in reality. In Chiarelli, Laskin J.A. stated at paragraph 14:

...The motions judge was obviously unimpressed, as am I, with the defence’s assertions of prejudice. The only allegation of prejudice in the material filed by the defence on the motion is the following very general statement in the affidavit of State Farm’s claims adjuster:

It is my believe that the defence of this action has been seriously prejudiced due to the passage of time and the strong possibility that pre-accident and post-accident records and witnesses may not be available or that their recollections may not be accurate.

Although the onus remains on the plaintiffs to show that the defendant will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these

witnesses and records are still available or that their unavailability will not cause prejudice. It seems to me that if the defence is seriously claiming that it will be prejudiced by an extension it has at least an evidentiary obligation to provide some details. The defence did not do that in this case.

[34]              Even if a defendant shows he suffered prejudice during the time which elapsed before he had notice of the claim, it must be shown the prejudice occurred after the expiration of the date when he should have been served. In Chiarelli, Laskin, J.A. stated at paragraph 16:

[16] ....prejudice that will defeat an extension of time for service must be caused by the delay. Prejudice to the defence that exists whether or not service is delayed ordinarily is not relevant on a motion to extend the time for service. In this case the defence complains that the police officer's notes have been destroyed. However, they were destroyed within two years of the accident under a local police policy. Thus, the notes would have been unavailable to the defence even if the statement of claim had been served on time.

[35]              Like the judges in Chiarelli, I am unimpressed with the defendant’s assertions of prejudice. I will deal with the assertions in detail below, but will begin by noting : 1) Dr. Callahan has a good memory of the August 24, 2002 event, which he demonstrates in his affidavit; and 2) Dr. Callahan’s counsel requested the Souris Hospital records in September, 2005. I presume the records still exist and Dr. Callahan’s counsel received them, else there would be a clear basis for a claim of prejudice, and Dr. Callahan’s counsel would not have failed to raise it.

[36]              As to Dr. Callahan’s claims of prejudice I conclude as follows:

1)                  Dr. Callahan says had the claim been brought to his attention in August 2003, he could have retained legal counsel “to assist in reviewing the Plaintiff’s claims and condition at the time.” This assertion is so vague as to be meaningless, and ignores the fact the claim was issued in August, 2003, but was not required to be served until February, 2004.

2)                  Dr. Callahan says since he has now moved to Newfoundland, his ability to review and prepare a defence are considerably hindered. Had he been notified earlier, he says he could have “attended to these issues.” Dr. Callahan moved to Newfoundland long before the limitation period expired and long before the statement of claim was issued (he moved in December, 2002). Since the claim was issued, Dr. Callahan was on PEI only once, in the summer of 2004, after CMPA had the statement of claim. Aside from being factually unsound, and lacking in specifics, the whole notion that a person in Newfoundland is handicapped in attending to the preliminary stages of defending a case in PEI is not realistic;

3)                  Dr. Callahan says if he had been aware of the claim earlier, he could have arranged an independent medical examination of the Plaintiff “more contemporaneous with his alleged injuries.” I do not accept this for the following reasons:

a)                  As observed by Laskin J.A. in Chiarelli, most defendants save their IME for just before trial. In order to make this assertion, the defendant should have to show an air of reality to the notion he might have done an early IME;

b)                  Had the plaintiff originally sued only Camp Abegweit and the two doctors, the plaintiff could have waited 21/2 years after the injury before serving the statement of claim. Dr. Callahan received a copy of the claim 2 years 81/2 months after. CMPA had the claim 11/2 years after the injury. There is no suggestion there was an important date for an IME falling between 21/2 years and 2 years 81/2 months post injury, or even between 11/2 years and 2 years 81/2 months. As well, Dr. Kapalanga, insured by CMPA and represented by Mr. Gormley had been served in February, 2004. If it was important an IME be done, it could have been done.

[37] To summarize on this issue:

1)     the plaintiff has a reasonable excuse for the delay in service;

2)                  the defendant, through his insurer, had constructive notice of the                                           claim within the limitation period and within the service period;

3)                  even disregarding the notice to CM PA, the defendant had actual notice of the claim two years eight and one half months after the injury occurred. The plaintiff could have waited two years before issuing the claim, then a further six months before serving it. Nothing prejudicial occurred after the expiration of any dates, whether limitation period, or date of issuance of claim or service period;

4)                  the plaintiff has satisfied the onus of proving the defendant will not be prejudiced by the extension.

[38]           For the reasons set out above, I find the plaintiff has shown extending the time for service will not prejudice Dr. Callahan’s defence. I am satisfied the extension will advance the just resolution of the dispute and accordingly I extend the time for service on Dr. Callahan.

99.  As in the above provided summary Ellis v. Callahan & Camp Abegweit , supra, the similarities may be as follows:

1)  The Plaintiff Andre Murray has a reasonable excuse for the delay in filing the Contract documents necessary to move the Mechanics Lien Action Forward, to DISCOVERY and Remedy.

2) The Defendant has always been aware (by actual notice) of the Plaintiff‘s intention to pursue the Mechanics Lien Action, to completion and is aware and has been advised by the Plaintiff of the difficulties experienced by the Plaintiff to this point to retrieve contractual documents inter alia necessary for DISCOVERY.

3)  To the Plaintiff’s knowledge nothing prejudicial will occur, to the Defendant if the Court grants Orders of a Continuance.

4) The Defendant is not prejudiced by the requested Continuance.

100.         For similar reasons as set out and found above, in Ellis v. Callahan & Camp Abegweit , supra,  the Plaintiff contends that the Court will find the Defendant has demonstrated that if the Court grants Orders of a Continuance this will not prejudice the Defendant. Granting Orders of a Continuance, will advance the just resolution of the dispute and according to the interest of Justice this Honorable Court will find, similarly to the Honorable Justice Benjamin B. Taylor decision that granting the requested Continuance is most appropriate.

101.         As Justice Laskin J.A. commented:  “I see no rational basis for refusing to extend the time for service simply because the delay is longer than the applicable limitation period.”   the Plaintiff in this matter sees no reasonable basis for the Honorable Court to not grant the Continuance; subsequently granting the necessary Continuance is in the interest of justice, further, will overcome the prescribed limitation period, which, again, will advance just resolution of the dispute, without prejudice or unfairness to the parties.

102.         As quoted above, “In Chiarelli v. Wiens 2000 CanLII 3904 (ON C.A.), (2000), 46 O.R.(3d) 780 (C.A.), Laskin J.A., in writing for a unanimous court, found at paragraph 9, stated the law as follows:”

[9]          As Lacourciere J.A. said in Laurin v. Foldesi (1979), 23 O.R. (2d) 331 (C.A.):  “The basic consideration . . . is whether the [extension of time for service] will advance the just resolution of the dispute, without prejudice or unfairness to the parties.” 

103.         The Law Society of New Brunswick Code of Professional Conduct, CHAPTER 15 (4) states: “the lawyer shall not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of another lawyer not going to the merits or involving a sacrifice or prejudice of the rights of the client.” Furthermore,  CHAPTER 15 (2)(iii) states “The lawyer shall agree to reasonable requests by another lawyer for an extension of time, the waiver of a procedural formality and other similar accommodations as long as the position of the client of the lawyer will not be prejudiced materially by agreeing to the accommodation.” And (vii) “The lawyer shall practise the same principles of good faith and courtesy toward laypersons lawfully representing themselves or others in a matter as the lawyer is required to observe toward other lawyers”.

104.         The position of the Solicitor for the Defendant regarding the Continuance, should be one of consent to the requested Continuance, which will advance the just resolution of the dispute, without prejudice or unfairness to the parties and will consequently be in accordance with the Law Society of New Brunswick Code of Professional Conduct..

B.

Should the Defendant pay costs of the within Motion?

105.         Plaintiff André Murray has requested consent of the Defendant in the matter of a Continuance of the Plaintiff’s Mechanics Lien Action four separate occasions. The Defendant each and every time has either replied stating the position of the Defendant as negative on two occasions two other occasions no response.  Please note the Plaintiff has attempted to make the subject request for consent to a Continuance justifiable to the Defendant by providing just and sufficient cause. Included within the correspondence sent to the Defendant requesting a consent was an explanation as to the procedure and the ramifications thereof. Nevertheless the Solicitor for the Defendant continued to return correspondence of a negative response nature. Despite the Defendant having received reasonable justification for the Plaintiffs request for the Defendant’s consent to Continuance litigation continued to be pursued by the Defendant to no avail. A great deal of wasted time and financial loss has occurred because the Defendant refuses to cooperate on each and every occasion, the opportunity presents itself. The Plaintiff does not comprehend that the Defendant Betty Rose Danielski is genuinely in pursuit of remedy or else the Defendant is ill advised. However, the Plaintiff ‘s position on the matter of Costs should reflect the Defendant’s lack of cooperation and the /Defendant’s avoidance and or attempts to circumvent the DISCOVERY process in favor of frivolous litigious proceedings. The Plaintiff requests of this Honorable Court Costs be awarded against the Defendant on a Solicitor Client basis and or significant in volume to effect a strong deterrent against such behavior.

1. Please see provided copy of a Letter found at RECORD ON MOTION BOOK 1 – TAB – 33 -. A letter requesting Consent to a Continuance was served on Solicitor for Defendant Betty Rose Danielski, E. Thomas Christie, on May 31, 2010.

2. Please see provided copy of a Letter found at RECORD ON MOTION BOOK 2 – TAB – 39. -Exhibit “V”. A letter Dated November, 22nd, 2010, Letter requesting that the Defendant consent to a Continuance of the subject Action pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act.

3. Please see provided copy of a Letter found at RECORD ON MOTION BOOK 2 – TAB – 40. -Exhibit “X”. Copy of Letter #2 to Solicitor Thomas Christie, Dated  22nd day of November, 2010, requesting that the Defendant consent to a Continuance of the subject Action pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act.

4. Please see provided copy of a Letter found at RECORD ON MOTION BOOK 2 – TAB – 42  -Exhibit “Y”. Copy of Letter Dated  23rd day of November, 2010, requesting that the Defendant consent to a Continuance of the subject Action pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act

5. Please see provided copy of a Letter found at RECORD ON MOTION BOOK 2 – TAB – 43 - Exhibit “Z”. Copy of Letter Dated January 20, 2011, requesting that the Defendant consent to a Continuance of the subject Action pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act

106.         The Plaintiff has made every effort to find a fair, reasonable and cost efficient path to resolution of the Parties dispute. The subject Mechanics' Lien Action has been slow to progress to DISCOVERY because of circumstances and influences out of the Plaintiffs Control.

107.         The Plaintiff, being a Self Represented litigant, has adhered to the Rules of Court, through out this Action, and has invested a great deal of time, resources and effort to provide the Court with the information necessary to come to a well balanced and fair decision.

108.         Costs may be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, Self Represented litigant incurred an loss based on opportunity cost rationale by foregoing remunerative activity. The Plaintiff did as a matter of fact have to spend much more time then a trained lawyer would have, to research and produce the same letters, affidavits and documents for use in the various Court procedures and that entire time devoted to research and producing the same letters, affidavits and documents, the Plaintiff did loose the opportunity for gainful employment, suffering a significant loss of income. The Plaintiff, requests that the Court Order cost in the Favor of the Plaintiff in this matter.

The Defendant’s conduct

109.         The Defendant on the Other Hand has refused to consent to a Continuance of the subject Mechanics' Lien Action, though offered sufficiently reasonable justification by the Plaintiff on each of the multiple occasions.  Therefore, forcing the Plaintiff and the Solicitor for the Defendant to engage in otherwise unnecessary Court litigation and the relative document preparation associated with same evidently a costly preparation for each of the to date three absolutely unnecessary Court hearings and now this Motion for a Continuance of the mechanics Lien Action, the fourth Court litigation redundantly unnecessary had the Defendant consented in the first place to a Continuance of the Plaintiff’s subject Mechanics Lien Action.

110.         The Plaintiff requests an Order that the Defendant pay costs of the within Motion forthwith for consistent and repeated, non-compliance with the Rules of Court. The Defendant, in this matter, has a demonstrable history of non compliance with the Rules of Court furthermore, the Plaintiff relies upon the Defendant and namely the Defendant Solicitor to adhere to The Law Society of New Brunswick’s Code of Professional Conduct, CHAPTER 15 Section 2 (iii), 2 (v), 2 (vii) and Section 4, consequently, the Plaintiff requests the Court to consider the following when ruling as to costs of the within Motion.

111.         The Rules of Court Rule 2.02 provides that “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 in dispute between the parties.” The Plaintiff asserts that consistent and repeated; non-compliance with the Rules of Court should not be treated as an irregularity. To secure the just determination of the matters in dispute between the parties, requires the parties to substantially adhere to the Rules of Court. The Plaintiff in this matter contends that the Defendants behavior relative to Rules of Court Rule 2.02 is in fact purposeful behaviour that deviates from the normal way moreover the Defendant has demonstrated several specifically identifiable motives of which all appear to be disingenuous, especially from a moral standard or normal state.

112.         The relevant sections of the New Brunswick Rules of Court are reproduced below:

2.01 The Court Dispensing with Compliance

The court may at any time dispense with compliance

with any rule, unless the rule expressly or impliedly provides

otherwise.

2.02 Effect of Non-Compliance

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 in dispute

between the parties. In particular, the court shall not set

aside any proceeding because it ought to have been commenced

by an originating process other than the one employed.

2.03 Attacking the Regularity of Proceedings

A motion to attack a proceeding for irregularity shall be

made within a reasonable time, and shall not be allowed if

the party applying has taken a further step in the proceeding

after having knowledge of the irregularity.

113.         As a note: The Law Society of New Brunswick Code of Professional Conduct, CHAPTER 15 (2)(iii) states “The lawyer shall agree to reasonable requests by another lawyer for an extension of time, the waiver of a procedural formality and other similar accommodations as long as the position of the client of the lawyer will not be prejudiced materially by agreeing to the accommodation.” And (vii) “The lawyer shall practise the same principles of good faith and courtesy toward laypersons lawfully representing themselves or others in a matter as the lawyer is required to observe toward other lawyers”.

114.         The Plaintiff comprehends the Solicitor for the Defendant, regarding not advising his client to consent to a Continuance, (when requested by the Plaintiff) Defendant’s consent to a Continuance would have advanced the just resolution of the dispute, without prejudice or unfairness to the parties and consequently be in accordance with the Law Society of New Brunswick Code of Professional Conduct, instead the opposite has occurred therefore causing unnecessary delay and expense Court litigation.

115.         The relevant sections of the Law Society of New Brunswick Code of Professional Conduct CODE OF PROFESSIONAL CONDUCT CHAPTER FIFTEEN is provided bellow:

COLLEAGUES

CHAPTER 15

RULE

The lawyer shall practise good faith, courtesy and collegiality in all contacts with other lawyers and with their representatives.

Good faith, (professional) courtesy, collegiality

2. Without derogating from the broad application intended of the elements of the Rule in this chapter the following directives shall be observed as minimums by the lawyer in practising good faith, courtesy and collegiality as envisaged by the Rule:

(iii) The lawyer shall agree to reasonable requests by another lawyer for an extension of time, the waiver of a procedural formality and other similar accommodations as long as the position of the client of the lawyer will not be prejudiced materially by agreeing to the accommodation.

(v) The lawyer shall be punctual in fulfilling commitments made to another lawyer and shall respond on a timely basis to all communications from another lawyer that contemplate a reply.

(vii) The lawyer shall practise the same principles of good faith and courtesy toward laypersons lawfully representing themselves or others in a matter as the lawyer is required to observe toward other lawyers.

Avoidance of sharp practice

4. The lawyer shall not engage in sharp practice in the practice of law .  Without limiting this proscription the lawyer shall not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of another lawyer not going to the merits or involving a sacrifice or prejudice of the rights of the client. In addition the lawyer shall not impose upon another lawyer impossible, impractical or manifestly unfair conditions of trust including those with respect to time restraints and the payment of penalty interest .

116.         It does appear to the Plaintiff, that the Law Society of New Brunswick Code of Professional Conduct, CHAPTER 15 (2)(iii), 15 (2) ((v), 15 (2) (vii) and 15 (4) compels the Defendant’s Solicitor to not take advantage of slips, irregularities or mistakes on the part of the Plaintiff,  not going to the merits,  which does not involve a prejudice of the rights of the Solicitor’s client.  Furthermore, the Solicitor for the Defendant should have consented to the reasonable requests for a Continuance. 

Good faith, (professional) courtesy, collegiality

(iii) The lawyer shall agree to reasonable requests by another lawyer for an extension of time, the waiver of a procedural formality and other similar accommodations as long as the position of the client of the lawyer will not be prejudiced materially by agreeing to the accommodation.

117.         Accordingly, one would expect the same principles of good faith and courtesy should be extended to a self represented litigant; further, which are eagerly exchanged between members of the Bar. In this case the circumstances immediately appear self evident, to any reasonable person, that since the Plaintiff has been denied access to all documentation necessary for a proper discovery, (according to the Mechanics Lien Act schedule) the subject request of a Court Order for a Continuance, that the documents may be retrieved is abundantly reasonable. The position of the Defendant would not have been materially prejudiced by the Defendant agreeing to the requested Continuance. 

118.         In, Bélanger v. Roussel, 2006 NBCA 2 (CanLII) Chief Justice Drapeau C.J.N.B. ruling on an application for Orders under Rule 62.24(1), at paragraph 6 stated as follows:

[6]                                       When ruling on an application under Rule 62.24(1), the Court must take into account the interests of every party.  The Court may show leniency, particularly where the administration of justice will not be brought into disrepute should it adopt this approach. While it is true that the Court must shape its decision in a way that secures the just, least expensive and most expeditious determination of the litigation on its merits, it should always bear in mind that another court has considered the issues and has outlined a solution that is designed to be final and in keeping with this ideal. In this case, the interests of justice would be ill served by an order that is less drastic than the dismissal of the appeal.

119.         Though Chief Justice Drapeau C.J.N.B. in, Bélanger v. Roussel, was addressing a dismissal of an appeal for failure to comply with Rule 62.15, the principals expressed, such as “the Court must shape its decision in a way that secures the just, least expensive and most expeditious determination of the litigation on its merits”, in the Plaintiff’s view, may apply.

120.         First, as mentioned in Bélanger v. Roussel, 2006, supra, when ruling on an a Motion, the Court must take into account the interests of every party. It is in the interest of the Plaintiff that the Solicitor for the Defendant complies and adheres to the Rules of Court. When the Solicitor for the Defendant does not respond to communications from the Plaintiff, the result is unnecessary delay, as a consequence, this behavior causes the Plaintiff to be in a position of uncertainty and causes unnecessary stress, and in a typical example, there is much time spent attempting to comprehend why the Defendant does not respond, the Plaintiff would naturally question his own possible errors and as a consequence find himself possibly resending the correspondence while at the same time necessarily researching the Rules of Court studying for his possible errors when in fact it was not necessary.

121.         The Plaintiff should not be placed in a position of having to chase the Defendant’s Solicitor to receive documents that the Rules of Court compel the Respondent’s Solicitor to serve upon the Plaintiff according to the Rules of Court.

122.         Furthermore, all parties to any Court action must be able to rely upon the Code of Professional Conduct as established by the Law Society of New Brunswick. It is in the interest of the Solicitor for the Defendant to reply to all correspondence reasonably requiring a response. 

    

123.         In Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.)

Justice Deschênes, J.A. “such other order as may be just” pursuant to Rule 62.24(1)(c) of the Rules of Court at paragraph 2 as follows:

[2]                          The Notice of Perfected Appeal, dated February 21, 2003 is struck out, pursuant to Rule 62.24(1)(c) of the Rules of Court. The Registrar shall issue a Notice of Perfected Appeal when the Appellant files the documents required in accordance with the Rules of Court.

124.         As stated in Charlebois v. Saint John, the Plaintiff requests that this Court make such other order as may be just in reflection of the following history demonstrated by the egregious behavior of the Defendant’s Solicitor. The rule of Agent and Principle continue to apply.

125.         In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The Honorable Chief Justice J. Ernest Drapeau stated the following regarding Rule 62.24(1) and award of costs to a self-represented Appellant, (please see below staring at page 1 through to and including page 3) as follows:

     This is a motion by the respondents, other than Par Syndication Group Inc., for an order dismissing the appeal pursuant to Rule 62.23(1)(c) of the Rules of Court on the ground that the appellant has unduly delayed preparation and perfection of his appeal.

      Rules 62.15, 62.23(1)(c) and 62.24(1) provide as follows:

……………….

62.24 Failure to Comply with Rule 

(1) Where a party to an appeal or his solicitor is at fault in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may 

(a) if the party failing to comply is the appellant, 

     (i) dismiss the appeal with costs, including the costs of the motion, or

     (ii) direct the appellant to perfect the appeal within a specified time, 

(b) set the appeal down for hearing, or 

(c) make such other order as may be just including an order for payment of costs forthwith. 

     Dismissal of an appeal for failure to comply with Rule 62.15 is only appropriate "where it is shown that the interests of justice would be ill-served by a less drastic measure." See New Brunswick (Minister of Family and Community Services) v. A.N., [2002] N.B.J. No.  373  (C.A.)

- 3 -

 (Q.L.). The same approach is warranted when Rule 62.23(1)(c) is brought into play. 

     In our view, the interests of justice would be better served by an order under Rule 62.24(1)(a)(ii) directing the appellant to perfect his appeal within a specified time. 

Disposition 

     The motion for an order under Rule 62.23(1)(c) is dismissed. The appellant is directed to perfect his appeal on or before December 19, 2003, failing which it will stand dismissed. The unique circumstances of the present case warrant an order of costs against the moving parties in favour of the self-represented appellant. We fix those costs at $750. There will be no order of costs in favor of Par Syndication Group Inc.

126.         As referenced in Michaud v. Robertson, supra, is an example of an occasion, the Court found it appropriate to award the self-represented Appellant an order of costs against the moving parties.

127.         The Rules of Court which the Solicitor for the Defendant  has a history of non compliance with, Rules of Court, Rule18.02, Rule 18.03, Rule 20.01, Rule 20.02, Rule 27.03, and Rule 27.04 , are as follows:

18.02 How Personal Service Shall be Made

(1) Personal service shall be made as follows:

Individual

(a) on an individual, other than a person under disability,

by leaving a copy of the document with him;

18.03 Other Ways to Effect Personal Service

Where available

(1) With the exception of Rules 33.03 and 55.03,

where personal service is required by these rules, any appropriate

method of service authorized by this subrule

may be used.

Service by Prepaid Mail or Prepaid Courier

(3) Where personal service of a document may be

made by leaving a copy with a person pursuant to Rule

18.02(1), such service may be made anywhere in Canada

by sending a copy of the document, together with an Ac-

knowledgement of Receipt Card (Form 18A), by prepaid

mail or prepaid courier addressed to the person at the last

known address of the person.

(4) Service by prepaid mail or prepaid courier shall

be deemed to have been effected only if any one of the following

is returned to and received by the sender:

(a) the Acknowledgement of Receipt Card bearing a

signature which purports to be the signature of the person

to whom the document was sent;

(b) a post office receipt bearing a signature which

purports to be the signature or a copy of the signature

of the person to whom the document was sent;

(c) any other form of acknowledgement of receipt in

writing bearing a signature which purports to be the

signature or a copy of the signature of the person to

whom the document was sent; or

(d) confirmation in writing from the carrier that the

document was delivered to the person to whom the

document was sent.

(5) Service by prepaid mail or prepaid courier shall

be deemed to have been effected on the date the sender receives

a receipt or confirmation under paragraph (4).

20.01 Time for Filing and Serving Statement of Defence

Subject to Rule 20.02, a Statement of Defence (Form

27A) shall be filed and served

(a) within 20 days after service of the Statement of

Claim where the defendant is served in New Brunswick,

(b) within 40 days after service of the Statement of

Claim where the defendant is served elsewhere in Canada

or in the United States of America, or

(c) within 60 days after service of the Statement of

Claim where the defendant is served anywhere else.

20.02 Notice of Intent to Defend

(1) Any defendant served with a Statement of Claim

who intends to defend the action may, within the time limited

for filing and serving his Statement of Defence, file

and serve a Notice of Intent to Defend (Form 20A).

(2) Any defendant who files and serves a Notice of

Intent to Defend within the time limited for so doing, shall

have an additional 10 days within which to file and serve

his Statement of Defence, and he shall be deemed to have

submitted to the jurisdiction of the court.

27.03 Service of Pleadings

Who is to be Served

(1) Every pleading shall be served

(a) initially on every opposite party and on every

other party who has filed and served a pleading or a Notice

of Intent to Defend in the action or in a counterclaim,

cross-claim or third or subsequent party claim in

the action, and

(b) subsequently on every other party forthwith after

he files and serves a pleading or a Notice of Intent to

Defend in the action or in a counterclaim, cross-claim

or third or subsequent party claim in the action.

27.04 Time for Filing and Serving Pleadings

(1) The time for filing and serving a Statement of

Claim is prescribed by Rule 16.08.

(2) The time for filing and serving a Statement of Defence

is prescribed by Rule 20.01.

(3) A Reply shall be filed and served within 10 days

after service of the Statement of Defence.

(4) The time for filing and serving pleadings in a

counterclaim is prescribed by Rule 28.

(5) The time for filing and serving pleadings in a

cross-claim is prescribed by Rule 29.

(6) The time for filing and serving pleadings in a

third party claim is prescribed in Rule 30.

128.         The history of the questionable professional conduct of the Solicitor for the Defendant (in this matter) as it relates to the Plaintiff is as follows:

Defendant’s questionable conduct history:

129.         In the Matter regarding non adherence to the Rules of Court as it pertains to Court File Number:  FC 104 09, Andre Murray v. Betty Rose Danielski, the  Defendant Betty Rose Danieslki likewise, her Solicitor appear to share a strong and continued inclination to indulge in dilatory practice of a serious enough nature deserving of sanction by this Honorable Court. Plaintiff Andre Murray alleges that Betty Rose Danielski has evaded Service attempts by not responding to the Plaintiff’s attempts at Service, to the last know place of residence of the Defendant, Betty Rose Danielski, in Toronto Ontario, according to Rules of Court 27.03, Service of Pleadings and pursuant to Rules of Court, 18.03. Please note: Plaintiff Andre Murray was forced to commission a professional process server as all other means of service had been exhausted, further, as it became evident to Plaintiff Andre Murray that Betty Rose Danielski was avoiding service.  Other Ways to Effect Personal Service, Service by Prepaid Mail or Prepaid Courier, of correspondence containing the relative Court Documents

1.     Copy of a Claim for Lien Dated April 16, 2009;

2.     Copy of a Certificate of Pending Litigation Dated April 21, 2009;

3.     Copy of a Notice of Action (Form 16 B) Dated April 21, 2009;

4.     Copy of a Statement of Claim (Form 16 C) Dated May 20, 2009;

5.     Copy of a Amended Statement of Claim (Form 16 C) Dated Aug 21, 2009;

130.         The, as mentioned above, unsuccessful Service attempts, caused the Plaintiff to necessarily acquire the services of Canadian Process Servers Inc. (a professional process service company based in Toronto, Ontario) According to the Rules of Court the here within listed below Service, was successful October 19, 2009 as evidenced  by Copy of a Affidavit of Service by Process Server George Mallai Dated, November 9th, 2009 including the following documents:

1.     Copy of a Claim for Lien Dated April 16, 2009;

2.     Copy of a Certificate of Pending Litigation Dated April 21, 2009;

3.     Copy of a Notice of Action (Form 16 B) Dated April 21, 2009;

4.     Copy of a Statement of Claim (Form 16 C) Dated May 20, 2009;

5.     Copy of a Amended Statement of Claim (Form 16 C) Dated Aug 21, 2009.

131.         It is significant and noteworthy that reports from the Canadian Process Servers Inc, indicated unsuccessful service attempts. The process server George Mallai was of the opinion that Betty Rose Danielski was in deed avoiding Court Document Service. Consequently, further expense was incurred by Plaintiff Andre Murray as multiple return visits where required by process server George Mallai of Canadian Process Servers Inc to Betty Rose Danielski’s Residence and place of employment. Noteworthy is that the successful Service of Court Documents upon Betty Rose Danielski  by Process Server George Mallai effected subsequent correspondence attempts and revealed a significant change in apparent attitude of Betty Rose Danielski as a contingency Service attempt, sent UPS registered Mail, by Plaintiff Andre Murray to two different locations, additional copies of the above referenced documents, one set to the Defendant Betty Rose Danielski’s residence was for the first time accepted, claimed and signed for by Betty Rose Danieslki, after the above mentioned Process Server George Mallai was successful in person service and a second set which was claimed and signed for which was sent to Fudger House, the place of work of the Defendant Betty Rose Danielski.

132.         Subsequent to service of the here within above listed Court documents served upon Defendant Betty Rose Danielski, Plaintiff did not receive service of the Defendants Notice of Intent to Defend, or Demand for Particulars, at any time. The Plaintiff did not receive a phone call, email, regular post mail or registered mail regarding the here within subject Court documents. I, Plaintiff Andre Murray, am unaware of any attempt of personal Service upon myself and or registered mail attempts by the Defendant of the above mentioned Defendant’s Notice of Intent to Defend, or Demand for Particulars, nor to the Plaintiffs knowledge does a AFFIDAVIT of SERVICE to that affect exist within the Court files.

133.         The first time the Plaintiff, became aware of Defendant Betty Rose Danielski having retained the services of Solicitor Thomas Christie was not until the Plaintiff Andre Murray Searched the Court File at Court Client Services (Court File Number:  F/C/104/09) as a preliminary act before  crafting, filing and serving of the subject Motion for a Continuance of the Mechanics Lien Action.  

134.         On the 20^th day of April, 2010, Plaintiff Andre Murray served Solicitor E. Thomas Christie, for Defendant BETTY ROSE DANIELSKI , with Court File Number:  F/C/104/09 a Notice of Motion with supporting Affidavit by sending a electronic facsimile of the documents accompanied by a cover page by telephone transmission to Fax:  (506) 472 – 2091 of CHRISTIE LAW OFFICE, solicitor for Defendant BETTY ROSE DANIELSKI.

135.         The affidavit in support of the here within above mentioned Motion, detailed the reasons for the delay of the Discovery process pursuant to the Mechanics Lien Act further justifying the lack of forward movement of the subject action thus far inter alia necessary for the requested Order for a continuance of the Mechanic’s Lien Action. Communication The Plaintiff received no reply from the Solicitor for the Defendant on this matter; not  by phone, email, regular post letter, registered mail, or other wise any other form of communication regarding the here within subject matter of the requested Order for a continuance of the Mechanic’s Lien Action.

136.         The Plaintiff, on the 31st day of May, 2010 served Solicitor for Defendant BETTY ROSE DANIELSKI, E. Thomas Christie, with the Amended Notice of Motion and supporting Affidavit #2 by sending a facsimile of the documents accompanied by a cover page by telephone transmission to Fax:  (506) 472 – 2091 of CHRISTIE LAW OFFICE, solicitor for Defendant BETTY ROSE DANIELSKI.

137.         The Plaintiff, on the 31st day of May, 2010 served Solicitor for Defendant E. Thomas Christie,  with the Plaintiff’s letter  to the Defendant requesting Consent to a Continuance Dated May 31, 2010, by sending a facsimile of the documents accompanied by a cover page by telephone transmission to Fax:  (506) 472 – 2091 of CHRISTIE LAW OFFICE, agents for Defendant BETTY ROSE DANIELSKI

138.         The Plaintiff, on the 31st day of May, 2010 served Solicitor for Defendant BETTY ROSE DANIELSKI, E. Thomas Christie, QC with the Plaintiff Andre Murray’s letter to the Defendant requesting Documents pursuant to the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 32(1), Dated May 31, 2010, by sending a facsimile of the documents accompanied by a cover page by telephone transmission to Fax:  (506) 472– 2091 of CHRISTIE LAW OFFICE, solicitor for Defendant BETTY ROSE DANIELSKI.

139.         No response was received to the above mentioned three separate facsimiles, sent the 31st day of May, 2010, by the Plaintiff furthermore,  never received a reply by phone, email, regular post letter, registered mail letter or other wise any form of communication know to the Plaintiff.

140.         Fri, Jun 4, 2010 at 3:40 PM was the first time Plaintiff Andre Murray received an e-mail from Solicitor Thomas Christie.     

141.         The Plaintiff Andre Murray replied to Solicitor Thomas Christie the above mentioned email correspondence of  Fri, Jun 4, 2010 at 3:40 PM, from Solicitor Thomas Christie on date Mon, Jun 7, 2010, by e-mail including two e-mails detailing the issues that I was concerned with, as follows:

“In response to your request contained there in, I must respond, that, to date, I have never received any documents from your office whatsoever.

Notice: I have a problem with my neighbor, whom is for some unexplainable reason, of the habit, that he must cause me to not receive my Canada Post Mail.

Furthermore, I have documented evidence of this same neighbor intercepting courier delivery of my correspondence ultimately causing it to never arrive and subsequently refusing to surrender same.

In light of the following, I kindly request that all correspondence which must be sent to me, and is required service according to the Rules of Court, further, that it be sent by Registered Mail only.

Furthermore, kindly provide the tracking number to me directly by email that I may intercept the delivery of same.

Obviously this, in light of the following circumstances, will expedite matters.”

142.         Further to that point, in the same two above mentioned letters, the Plaintiff Andre Murray requested of the Solicitor Thomas Christie for the Defendant, confirmation that the recently faxed documents had been received successfully as follows:

“ Question: Please confirm that you received my faxed documents sent 05/31/2010 03:07 PM which included 40 pages, consisting of Amended Notice of Motion dated 31st day of May, 2010 and supporting Affidavit 2  Dated 31st day of May, 2010

 Also; Please confirm that you received my faxed documents sent 05/31/2010 03:17 PM which included a correspondence Letter of inquiry regarding Court File Number F/C/104/09 and request of your Client Defendant Betty Rose Danielski and her cooperation by consenting  to a Continuance of the Mechanics Lien Action pursuant to section 52.1 (1) (b) of the Mechanics Lien Act.

Also; Please confirm that you received my faxed documents sent 05/31/2010 03:14 PM which included a correspondence Letter regarding Lienholders Right to Information  Mechanics Lien Act, R.S.N.B. 1973, c. M_6   

Kindly respond to all of the above at your earliest convenience.  

Nothing more implied .

I trust you find the following agreeable.”

143.          The here within above mentioned two Jun 7, 2010 e-mails where never to the Plaintiff’s knowledge replied to.

144.         The Plaintiff Andre Murray, did receive a series of e-mails from Solicitor Thomas Christie and replied in kind, from July 19 to July 22, 2010. The essence of the e-mails received from Solicitor Thomas Christie initially insisted that his client the Defendant (Respondent in that matter) must be provided with a copy of the Transcript from the June 10, 2010 Hearing. The following position of Thomas Christie was contrary to normal practice according to client services at Court of Appeal also the Court Reporter insisted that this was incorrect behavior furthermore, that proper conduct would have been that Thomas Christie himself should commission a Certified copy from the Court Reporter at his own expense and should not be bothering Andre Murray with such matters.

145.          (Appellant in that matter) Plaintiff Andre Murray, received a e-mail correspondence from Solicitor Thomas Christie instructing the Defendant (Respondent in that matter) that Andre Murray must serve any AMENDED pleading upon him at a date earlier than the Rules of Court dictate because Solicitor Thomas Christie had previously scheduled a vacation which required him receiving Court Document Service to the satisfaction of Solicitor Thomas Christie.

146.         The Appellant Andre Murray, in a series of e-mails of September 2, 2010, out of courtesy attempted to bring attention to a Fax sent the same day as follows:

“As you are aware of my facsimile of this same day  .... thought  I would  take this opportunity, regarding Certificate of Readiness' (FORM62HH)”

To which Solicitor Thomas Christie did not confirm receiving the same Fax.

147.         Further in the same e-mail of September 2, 2010, the Plaintiff Andre Murray requested of Solicitor Thomas Christie to be provided with the estimated time Solicitor Thomas Christie required for presentation to the Court of Appeal as follow:

“Dear sir ... we must confer, as to the estimated time required, that, which shall be scheduled, with the Court of Appeal, as is provided for, within a 'Certificate of Readiness'”.

148.         Furthermore in a follow up email 9 minutes after sending the first September 2, 2010 e-mail to Solicitor Thomas Christie the Plaintiff (Appellant in that matter) asked the question of the Respondent (in that matter) as follows:

“Hello Thomas Christie, Please explain as to why, to date, all of the documents  submitted, on behalf of Betty Rose Danielski and coming from your office have the Betty  underlined!?”

149.         The Solicitor Thomas Christie for the Defendant (Respondent in that matter) delayed 5 days, and finally on September 7, 2010 one of the Plaintiff ‘s (Appellant in that matter) September 2, 2010 e-mails was replied to, but not the an other email concerning the very peculiar underlined name of “Betty” Rose Danielski the Defendant (Respondent in that matter). The Plaintiff (Appellant in that matter) again resent the e-mail concerning the very peculiar underlined name of “Betty” Rose Danielski the Respondent. No e-mail has ever been returned to the Plaintiff (Appellant in that matter) in this regard.  

150.         The Plaintiff (Appellant in that matter) was never served with AFFIDAVIT of Betty Rose Danielski, prior to the June 10, 2010, Court of Queens Bench hearing.

151.         Subsequently, the Plaintiff (Appellant in that matter) provided the Defendant (Respondent in that matter) with the appropriate list of intended documents, to be used, at the hearing of the Court of Appeal. This occurred in a timely manner, furthermore, the list evidently was not to the satisfaction of the Solicitor for the Defendant (Respondent in that matter)  as he made it known that he desires that the Plaintiff (Appellant in that matter)  must provide documents to his liking (this included an act of coercion wherein it is a communicated intent to inflict harm or loss on another for lack of performance). Solicitor Thomas Christie protested the absence of certain Documents. The Solicitor for the Defendant (Respondent in that matter)  did not stop with unpleasant e-mail correspondence between himself and sent to the Plaintiff (Appellant in that matter). However, the Solicitor continued to pursue this penchant until he was actually speaking to the Clerks at Court of Appeal Office attempting to persuade them that Plaintiff (Appellant in that matter) Andre Murray must now provide a supplementary Appeal Book et cetera. When the Plaintiff (Appellant in that matter) responsibly investigated the matter further, it was found that the inclusion of any material for the appeal was to the discretion of the Plaintiff (Appellant in that matter) and not in fact necessary to satisfy the Solicitor for the Defendant (Respondent in that matter) as had been postured by the Solicitor for the Defendant (Respondent in that matter).  

152.         The Solicitor for the Defendant (Respondent in that matter) did not Process Serve the Respondent’s Submission upon the Plaintiff (Appellant in that matter) within the prescribed time allowable by Rules of Court; time limits, in this case requiring service no later than October 20, 2010. The Solicitor for the Defendant (Respondent in that matter) had been placed on NOTICE Mon, Jun 7, 2010, by e-mail, which is quoted below:

“In light of the following, I kindly request that all correspondence which must be sent to me, and is required service according to the Rules of Court, further, that it be sent by Registered Mail only.

Furthermore, kindly provide the tracking number to me directly by email that I may intercept the delivery of same.

Obviously this, in light of the following circumstances, will expedite matters.”

153.         Despite the here within provided copy of above Jun 7, 2010, NOTICE, the Plaintiff (Appellant in that matter) was not served October 20, 2010, with the Defendant’s (Respondent in that matter) Submission. At 2:00 PM on October 20, 2010, Plaintiff (Appellant in that matter) Andre Murray sincerely telephoned  Client Services of the Court of Appeal (several times) October 20, 2010, enquiring after the Defendant‘s (Respondent in that matter) Submission. Plaintiff (Appellant in that matter) Andre Murray was told that the Defendant’s (Respondent in that matter) Submission had not yet been filed.

154.         October 20, 2010, Plaintiff (Appellant in that matter) Andre Murray telephoned the Office of the Solicitor for the Defendant (Respondent in that matter), several times, but was unsuccessful at reaching the Solicitor for the Defendant (Respondent in that matter).

155.         On Thursday, October 21, 2010, Plaintiff (Appellant in that matter)  Andre Murray again telephoned the Office of the Solicitor for the Defendant (Respondent in that matter), several times, but was unsuccessful at reaching the Solicitor for the Respondent.

156.         October 22, 2010, Plaintiff (Appellant in that matter)  Andre Murray retrieved a telephone message from Court of Appeal Client Services, the message conveyed that Solicitor for the Defendant (Respondent in that matter) had indeed filed a Defendant’s (Respondent in that matter)   Submission, approximately 4 pm October 20, 2010, and claimed to have e-mailed a copy of the document to the Appellant, although, Court Registrar Micheal Bray confirmed that the Service by e-mail was not in fact considered Service on a non solicitor according to the Rules of Court.

157.         On Friday, October 22, 2010, at approximately 8:30 AM, Plaintiff (Appellant in that matter) Andre Murray telephoned the Office of the Solicitor for the Defendant (Respondent in that matter), and did reach the Solicitor Thomas Christie for the Defendant (Respondent in that matter). Plaintiff (Appellant in that matter) Andre Murray verbalized that the Plaintiff (Appellant in that matter) had not yet received a copy of the Respondent’s Submission, furthermore, confirmed that the Plaintiff (Appellant in that matter) must be served according to the Rules of Court. The Solicitor for the Defendant (Respondent in that matter) replied that my request was not able to be granted as he (Respondent’s Solicitor) was currently preparing to leave Fredericton for destination Woodstock. Furthermore, that Plaintiff (Appellant in that matter) Andre Murray must attend his Office Mail box on Monday (3 days later) at which time the Respondent’s Submission would be available. The Defendant’s (Respondent in that matter) Solicitor protested that, Plaintiff (Appellant in that matter) should not wish to wait until Monday. Again, offered to leave a copy in the mail box of his office on Monday for Plaintiff “to pick up”. The Plaintiff (Appellant in that matter) stated that, the mail box offer would not suffice and wished to have a copy sent to Plaintiff right-way, and Plaintiff (Appellant in that matter) Andre Murray suggested, offering, that local couriers could accomplish the Document Process Service job that very same day as it was still early morning . Courier Service was rejected by Thomas Christie and instead, the Plaintiff (Appellant in that matter) was offered Service by facsimile or e-mail of the document. The Plaintiff (Appellant in that matter) informed the Solicitor for the Defendant (Respondent in that matter) that e-mail and facsimile is not considered service, upon a non solicitor, according to the rules of Court. Thomas Christie persisted inquiring if my e-mail address was the same as the court document indicated. The Plaintiff (Appellant in that matter) indicated that the Plaintiff (Appellant in that matter) did not wish a copy sent by email because this is not considered Court Document Service according to the Rules of Court. However, the Plaintiff (Appellant in that matter) was told that a copy was and or would be sent as a courtesy and would not be considered service. The Plaintiff restated, that, the only way the Plaintiff  wished to be served was by Registered Mail.  Christie then stated that the document would be mailed but would not give a time frame by which that would happen, and the Solicitor for the Defendant (Respondent in that matter), quickly ended the conversation, stating that other matters where more pressing.

158.         On October 22, 2010, immediately, following a telephone conversation with the Solicitor for the Defendant (Respondent in that matter), Plaintiff (Appellant in that matter) Andre Murray corresponded by electronic facsimile a letter to the Solicitor for the Defendant (Respondent in that matter), confirming my position, further, my requirements regarding the matter of Court Document Service upon the Plaintiff (Appellant in that matter)

159.         On Monday, October 25, 2010, Plaintiff (Appellant in that matter)  Andre Murray, received an envelope in the residential mail box, which had the return address of the Office of the Solicitor for the Defendant (Respondent in that matter), the contents of the envelope was the Respondent’s Submission. The contents of the envelop was lacking a Acknowledgement of Receipt Card and acquisition of the envelope required no signature, contrary to the Rules of Court 18.03 and despite the request, as earlier here within above mentioned, the request made to the Solicitor for the Defendant (Respondent in that matter), who was placed on NOTICE Mon, Jun 7, 2010, by email. The Plaintiff (Appellant in that matter) offers that the Defendant’s (Respondent in that matter) Submission document was received by the Plaintiff (Appellant in that matter) 5 days late, according to the rules of court, and still had not been properly served according to the rules of Court.

160.         On November 26, 2009, Solicitor E. Thomas Christie for Defendant Betty Rose Danielski, did file with the Court of Queen’s Bench Trial Division, Judicial District of Fredericton, a Defendant’s NOTICE OF INTENT TO DEFEND (FORM 20A), Dated November 26, 2009, but failed to Court Document Process Service of same document as is required by the Rules of Court, Rule 20.01, Rules of Court, Rule 20.02(1) and Rules of Court, Rule 20.02(2).

161.         On November 26, 2009, Solicitor E. Thomas Christie for Defendant Betty Rose Danielski, did file with the Court of Queen’s Bench Trial Division, Judicial District of Fredericton, a Defendant ‘s Demand for Particulars (FORM 27L), Dated November 26, 2009, but failed to Serve the same document upon the Plaintiff as is required by the Rules of Court, Rule 27.08(3).

162.         Solicitor E. Thomas Christie for Defendant Betty Rose Danielski, has not to date (Plaintiff Andre Murray searched the file on Wednesday, February 9, 2011) filed with the Court of Queen’s Bench Trial Division, Judicial District of Fredericton, a Statement of Defense, as required to by the Rules of Court Rule27.04(2) and 20.02(b).

163.         Provided below are the Rules of Court which the Defendant has not adhered to date.

18.02 How Personal Service Shall be Made

(1) Personal service shall be made as follows:

Individual

(a) on an individual, other than a person under disability,

by leaving a copy of the document with him;

Service by Prepaid Mail or Prepaid Courier

(3) Where personal service of a document may be

made by leaving a copy with a person pursuant to Rule

18.02(1), such service may be made anywhere in Canada

by sending a copy of the document, together with an Ac-

knowledgement of Receipt Card (Form 18A), by prepaid

mail or prepaid courier addressed to the person at the last

known address of the person.

(4) Service by prepaid mail or prepaid courier shall

be deemed to have been effected only if any one of the following

is returned to and received by the sender:

(a) the Acknowledgement of Receipt Card bearing a

signature which purports to be the signature of the person

to whom the document was sent;

(b) a post office receipt bearing a signature which

purports to be the signature or a copy of the signature

of the person to whom the document was sent;

(c) any other form of acknowledgement of receipt in

writing bearing a signature which purports to be the

signature or a copy of the signature of the person to

whom the document was sent; or

(d) confirmation in writing from the carrier that the

document was delivered to the person to whom the

document was sent.

(5) Service by prepaid mail or prepaid courier shall

be deemed to have been effected on the date the sender receives

a receipt or confirmation under paragraph (4).

RULE 20

TIME FOR DELIVERY OF

STATEMENT OF DEFENCE

20.01 Time for Filing and Serving Statement of Defence

Subject to Rule 20.02, a Statement of Defence (Form

27A) shall be filed and served

(a) within 20 days after service of the Statement of

Claim where the defendant is served in New Brunswick,

(b) within 40 days after service of the Statement of

Claim where the defendant is served elsewhere in Canada

or in the United States of America, or

(c) within 60 days after service of the Statement of

Claim where the defendant is served anywhere else.

20.02 Notice of Intent to Defend

(1) Any defendant served with a Statement of Claim

who intends to defend the action may, within the time limited

for filing and serving his Statement of Defence, file

and serve a Notice of Intent to Defend (Form 20A).

(2) Any defendant who files and serves a Notice of

Intent to Defend within the time limited for so doing, shall

have an additional 10 days within which to file and serve

his Statement of Defence, and he shall be deemed to have

submitted to the jurisdiction of the court.

27.01 Pleadings Required or Permitted

(1) In an action, pleadings consist of the Statement of

Claim and a Statement of Defence (Form 27A) and may

include a Reply (Form 27B).

27.03 Service of Pleadings

Who is to be Served

(1) Every pleading shall be served

(a) initially on every opposite party and on every

other party who has filed and served a pleading or a Notice

of Intent to Defend in the action or in a counterclaim,

cross-claim or third or subsequent party claim in

the action, and

(b) subsequently on every other party forthwith after

he files and serves a pleading or a Notice of Intent to

Defend in the action or in a counterclaim, cross-claim

or third or subsequent party claim in the action.

27.04 Time for Filing and Serving Pleadings

(1) The time for filing and serving a Statement of

Claim is prescribed by Rule 16.08.

(2) The time for filing and serving a Statement of Defence

is prescribed by Rule 20.01.

(3) A Reply shall be filed and served within 10 days

after service of the Statement of Defence.

27.08 Particulars

(1) Where a party files and serves a Demand for Particulars

(Form 27L) demanding particulars of an allegation

in the pleading of an opposite party, and the opposite

party fails to supply sufficient particulars within 10 days

after service of the demand, the court may, upon such

terms as may be just, order that such particulars be filed

and served within a specified time.

(2) Where a party demands particulars for the purpose

of pleading, he shall have the same length of time

(a) after receipt of the particulars, or

(b) after failure to supply sufficient particulars as provided

in paragraph (1),

to serve such pleading as he had when the demand was

served, but such length of time shall not be less than 5

days.

(3) The Statement of Particulars (Form 27M) shall be

served on all parties and filed with the clerk.

164.         Costs are a useful tool of the Court to encourage settlements or to discourage or sanction inappropriate behavior, such as the consistent and flagrant behavior of the Defendant, as indicated above. The Plaintiff encourages the Court to take note and appropriately Order Costs against the Defendant in this matter. To not mark the Court’s disapproval of this type of conduct, by not awarding costs in the Plaintiff’s favor, sets a negative standard that others may follow and sends the wrong message, regarding conduct at Court.

Cost Orders in favor of self-represented litigants

165.         In McNichol v. Co-operators General Insurance Company, 2006 NBCA 54 (CanLII), Chief Justice J. ERNEST DRAPEAU, addresses cost orders in favor of self-represented Litigants.                                                                                          (Please see below, at paragraph 41 through to and including paragraph 45), as follows:

IV.      Conclusion and Disposition 

[41]                                   The Rules of Court invoked by the respondent, Co-Operators General Insurance Co., in support of its motion for dismissal of the appellant’s action, Rules 23.01(2)(a) and (b), have no application here. Those rules do not allow for the determination prior to trial of the appellant’s entitlement to damages from Co-Op for its alleged bad faith in the handling of his SEF #44 claim. Moreover, the defence relied upon by Co-Op, res judicata, does not come into play since there is no prior judicial decision susceptible of triggering its application. For those reasons, and after hearing the parties, we allowed the appeal and brought the proceedings to a close with the following ancillary orders.   

[42]                                   Mr. McNichol asked for the immediate reimbursement of the costs and disbursements that he was required to pay pursuant to the judgment under appeal. His entitlement to that relief being unarguable, we so ordered.   

[43]                                   Mr. McNichol, who is self-represented, also requested costs on the motion in the court below and on appeal. In Proenca v. Squires Home Improvements and Total Renovations Ltd. 2001 NBCA 45 (CanLII), (2001), 252 N.B.R. (2d) 274 (C.A.), Deschênes, J.A., writing for a unanimous court, makes the following observations regarding the appropriateness of cost orders in favor of self-represented litigants at paras. 19-20:  

The trial judge awarded costs of $1,500.00 to the Proencas to be paid by Squires. The Proencas, however, are unrepresented lay litigants and as party and party costs are generally intended to partly indemnify the recipient for the cost he or she must pay his or her own lawyer, such costs are not usually allowed to unrepresented litigants.             See Bolands Ltd. v. Buckley and 052897 N.B. Ltd. reflex, (1997), 186 N.B.R. (2d) 72. (N.B.C.A.) and Harris v. Harris 1991 CanLII 2663 (NB Q.B.), (1991), 122 N.B.R. (2d) 1.

Rule 59.01, however, makes it clear that costs are in the discretion of the trial court who can determine by whom and to what extent costs shall be paid and that such costs can be fixed with or without reference to a tariff. In addition, there appears to be a modern trend regarding the granting of costs to unrepresented lay litigants.                                    Please see an excellent discussion in M.M. Orkin, The Law of Costs, 2d ed., looseleaf                   (Aurora, ON: Carswell, 2000) at 209.15 entitled "Party in Person".                                                    Please also see: Fong v. Chan 1999 CanLII 2052 (ON C.A.), (1999), 46 O.R. (3d) 330 (Ont. C.A.). 

Please See, as well:,                                                                                        Skidmore v. Blackmore 1995 CanLII 1537 (BC C.A.), (1995), 2 B.C.L.R. (3d) 201 (C.A.);                                                                                                           Huet v. Lynch 2001 ABCA 37 (CanLII), (2001), 91 Alta. L.R. (3d) 1 (C.A.); Dechant v. Stevens 2001 ABCA 39 (CanLII), (2001), 89 Alta. L.R. (3d) 246 (C.A.) and                                                                                                           Collins v. Collins 1999 ABQB 707 (CanLII), (1999), 72 Alta. L.R. (3d) 300 (Q.B.). 

[44]                                   After due consideration, we concluded that the case at bar was one that called for the exercise of our discretion under Rule 59.01 in a manner favorable to the self-represented litigant. We came to that conclusion primarily because of the frivolous nature of Co-Op’s motion for dismissal under Rules 23.01(2)(a) and (b), and the improper and inaccurate evidence provided at the hearing in the court below by counsel for Co-Op concerning Mr. McNichol’s testimony at discovery. In the result, we ordered Co-Op to pay costs throughout, which were fixed at $5,000, in addition to all reasonable disbursements. 

[45]                                   Finally, we referred back to the Court of Queen’s Bench the determination of the outstanding discovery-related prayers for relief in Co-Op's motion. In closing, we express the hope that the parties will make every reasonable effort to resolve their dispute on that subject and, more generally, that they will cooperate in securing the just, least expensive and most expeditious determination of the action on its merits.

166.         As stated by Chief Justice J. ERNEST DRAPEAU above in McNichol v. Co-operators General Insurance Company, 2006 , supra, “Rule 59.01, however, makes it clear that costs are in the discretion of the trial court who can determine by whom and to what extent costs shall be paid and that such costs can be fixed with or without reference to a tariff. In addition, there appears to be a modern trend regarding the granting of costs to unrepresented lay litigants.”  

167.         The Plaintiff argues that after due consideration, this Honorable Court may conclude similarly to the Court above in McNichol v. Co-operators General Insurance Company, 2006, supra, that the case before this Honorable Court is one that calls for the exercise of the Courts discretion  under Rule 59.01 in a manner favorable to the self-represented Plaintiff. 

168.         For convenience of this Honorable Court Rule 59.01, of the Rules of Court is reproduced below as follows:

59.01 Authority of the Court

(1) Subject to any Act and these rules, the costs of a

proceeding or a step in a proceeding are in the discretion

of the court and the court may determine by whom and to

what extent costs shall be paid.

169.         As similarly stated above in McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may come to that same conclusion, in regard to the frivolous, irresponsible and callous nature of the Defendant in this matter, unbecoming behavior, and numerous irregularities in Process Service including the improper and inaccurate presentation of Hearsay evidence provided at the June 10, 2010 Hearing, by counsel for the Defendant.

170.         Following the lead of the above quoted Court Decision, McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may find it appropriate to Order the Defendant to pay costs throughout, which may be similarly fixed at $5,000, in addition to all reasonable disbursements. 

171.         In Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) Justice Robert J. Sharpe J.A stated as follows regarding the right of self-represented lay litigants to recover Costs. (Please see below, from paragraph 15 though to and including paragraph 27), as follows:

[15] The appellant relies on a number of decisions, discussed

below, on the right of self-represented lay litigants to recover

costs.  The appellant submits that those cases establish that lay

litigants may be awarded costs, including counsel fee, and that

it follows that self-represented solicitors must be similarly

entitled.

[16] Dicta from the Chorley case, supra, was long thought to

preclude recovery by self-represented lay litigants of any costs

beyond disbursements.  In Chorley,  the English Court of Appeal

stated that the opportunity cost rationale did not apply to self-

represented lay litigants.  In the court’s view, a self-

represented litigant who is not a solicitor should not be

entitled to recover costs as such a party does not bring

professional skill and competence to the case and a litigant’s

own time and trouble is not a pecuniary loss which the law can

measure.  Bowen L.J. held that the common law rule precluded

recovery, but noted that the Court of Chancery had on occasion

allowed a reasonable allowance for the self-represented

litigant’s loss of time.  He quoted a leading text on Chancery

practice, Lush’s Practice (3d ed.) at 896:  “A party not an

attorney, suing or defending in person, is entitled to no more

than his expenses out of pocket or at most to a reasonable

allowance beyond for his loss of time…”.

[17] In more recent times, the English courts recognized the

inconsistency of allowing self-represented lawyers to recover for

their time while refusing the same right to lay litigants.  In

Buckland v. Watts [1970] 1 Q.B. 27 at 31, Donaldson J. observed

that in principle the opportunity cost rationale applied equally

to self-represented lay litigants, and that their time could be

compensated with appropriate modification for lack of

professional skill and training.  However, Donaldson J. held that

he was not free to depart from past authority, and he disallowed

the lay litigant’s claim.  His decision was upheld on appeal:

[1970] 1 Q.B. 27 at 35-38.  The anomaly in the United Kingdom was

removed by legislation that now allows lay litigants to recover

costs: Litigants in Person (Costs and Expenses ) Act (U.K.),

1975, c. 47.

[18] In an early Ontario case, Millar v. Macdonald (1892), 14

P.R. 449 (Div. Ct.) at 501, the Chancery rule, referred to above,

was applied.  Boyd C. held that the successful self-represented

defendant was to be awarded “disbursements and some allowance,

but of a moderate description, for his time and trouble on the

argument”.  Boyd C. noted, however, that the award was

exceptional, and was made because the defendant had been faced

with committal for contempt.

[19] While there appears to be little Ontario authority on the

subject, appellate courts in two provinces have held that self-

represented lay litigants may be awarded costs.  In Macbeth v.

Dalhousie College and University (1986), 10 C.P.C. (2d) 69, the

Nova Scotia Court of Appeal held that a self-represented lay

litigant was entitled to recover costs primarily on the basis

that the common law rule precluding such recovery constituted a

denial of equality rights guaranteed by s. 15 of Charter of

Rights and Freedoms.  This reasoning was superceded by subsequent

decisions of the Supreme Court of Canada precluding the direct

application of the Charter to common law rules governing

litigation between private parties (Retail, Wholesale &

Department Store Union, Local 580 v. Dolphin Delivery Ltd.,

1986 CanLII 5 (S.C.C.), [1986] 2 S.C.R. 573) and insisting on the need to establish discrimination on an enumerated or analogous ground to support a

s.15 claim (Andrews v. Law Society of Upper Canada, [1989] 1

S.C.R. 143).  In Law Society of Prince Edward Island v. Johnston,

1988 CanLII 1365 (PE S.C.A.D.), (1988), 54 D.L.R. (4th) 18, the Prince Edward Island Court of

Appeal, referring to Dolphin Delivery, supra, held that the

Charter did not apply to the claim of a self represented litigant

to costs.  That court also rejected the claim on the ground that

costs could only be awarded on an indemnity basis.

[20] The British Columbia Court of Appeal arrived at the same

result achieved in the Macbeth case without resort to the

Charter.  In Skidmore v. Blackmore 1995 CanLII 1537 (BC C.A.), (1995), 122 D.L.R. (4th) 330, a five judge panel of the British Columbia Court of Appeal

overruled the court’s earlier decision in Kendall v. Hunt (1979),

106 D.L.R. (3rd) 277, which held that self-represented litigants

could not recover costs in excess of disbursements.  In Skidmore,

the court found that the 19th century English rule reflected by

the Chorley and Buckland cases could no longer be justified.

Cumming J.A. pointed out that modern cost rules reflected a

variety of purposes.  While indemnity remained one important

element, costs were also ordered or withheld as a means of

controlling behaviour by discouraging frivolous suits or

meritorious defences, and as a way of sanctioning unnecessary

steps in litigation, as well as misconduct by litigants or their

counsel.  Modern costs rules also were designed to promote and

encourage settlements.  In Cumming J.A.’s view, it was important

for the court to have at its disposal full costs sanctions,

whether litigants were represented or unrepresented.  Moreover,

the refusal to allow self-represented costs on indemnity grounds

was difficult to justify as the “time is money” rationale applies

every bit as much to the lay litigant as to the self-represented

lawyer.  Cumming J.A. noted that any difficulty in measuring the

amount to which the lay litigant is entitled could be answered in

British Columbia by strict application of the tariff.  Finally,

it was held that the court was competent to effect this change in

the common law as (at 342) “the matter of costs is a question

essentially within the discretion of the court, it bears directly

on matters of practice, and it is something on which this court

is well situated to rule”.

[21] It is apparent from this review of the case law that the

preponderance of modern authority supports the contention that

both self-represented lawyers and self-represented lay litigants

may be awarded costs and that such costs may include allowances

for counsel fees.  Since the Chorley decision in 1884, it seems

not to have been doubted that self-represented solicitors could

recover costs for solicitor’s fees.  The respondents did not take

issue with that proposition on this appeal.  Johnson v. Ryckman,

supra stands for the proposition that a self-represented

solicitor could not recover anything for counsel fee, but as I

have already noted, it was acknowledged in that case that there

seemed to be no rationale for the rule.  I am not persuaded by

the respondent’s submission that this 1903 case, which rests on

such a shaky foundation, should continue to govern us today.

Johnson v. Ryckman has been superceded by more recent cases that

have quite properly ignored the untenable distinction between

solicitor’s fees and counsel fees.  I can see no reason for

maintaining the distinction between solicitor’s fees and counsel

fees that was already outmoded almost one hundred years ago.  The

legislature’s decision to allow parties to recover costs in

relation to the work of salaried employees provides added impetus

to reject the view that self-represented solicitors should be

precluded from recovering costs.  Two provincial appellate courts

have held that lay litigants may recover costs, including counsel

fees.  The clear trend of both the common law and the statutory

law is to allow for recovery of costs by self-represented

litigants.

[22] Quite apart from authority and as a matter of principle, it

seems to me to be difficult to justify a categorical rule denying

recovery of costs by self-represented litigants.  As noted in the

Fellowes McNeil, supra and in Skidmore, supra, modern cost rules

are designed to foster three fundamental purposes: (1) to

indemnify successful litigants for the cost of litigation; (2) to

encourage settlements; and (3) to discourage and sanction

inappropriate behaviour by litigants.  It seems to me that all

three purposes are fostered by allowing the trial judge a

discretion to award costs to self-represented litigants.

[23] Since the Chorley case over one hundred years ago, it had

been accepted that self-represented lawyers are entitled to

indemnity on the “time is money” or opportunity cost rationale.

It is difficult to see why the opportunity cost rationale should

not be more generally applicable to self-represented litigants.

The self-represented lawyer possesses legal skills, but lacks

professional detachment when acting in his or her own cause.  If

the law is prepared to compensate lawyers for this loss of time

when devoting their efforts to their own cause, I fail to see any

basis for denying the same entitlement to self-represented lay

litigants who are able to demonstrate the same loss.

[24] A rule precluding recovery of costs, in whole or in part, by

self-represented litigants would deprive the court of a

potentially useful tool to encourage settlements and to

discourage or sanction inappropriate behaviour.  For example, an

opposite party should not be able to ignore the reasonable

settlement offer of a self-represented litigant with impunity

from the usual costs consequences.  Nor, in my view, is it

desirable to immunize such a party from costs awards designed to

sanction inappropriate behaviour simply because the other party

is a self-represented litigant.

[25] I would add that nothing in these reasons is meant to

suggest that a self-represented litigant has an automatic right

to recover costs.  The matter remains fully within the discretion

of the trial judge, and as Ellen Macdonald J. observed in

Fellows, McNeil v. Kansa, supra, there are undoubtedly cases

where it is inappropriate for a lawyer to appear in person, and

there will be cases where the self-represented litigant’s conduct

of the proceedings is inappropriate.  The trial judge maintains a

discretion to make the appropriate costs award, including denial

of costs.

[26] I would also add that self-represented litigants, be they

legally trained or not, are not entitled to costs calculated on

the same basis as those of the litigant who retains counsel. As

the Chorley case, supra, recognized, all litigants suffer a loss

of time through their involvement in the legal process.  The self-

represented litigant should not recover costs for the time and

effort that any litigant would have to devote to the case.  Costs

should only be awarded to those lay litigants who can demonstrate

that they devoted time and effort to do the work ordinarily done

by a lawyer retained to conduct the litigation, and that as a

result, they incurred an opportunity cost by foregoing

remunerative activity.  As the early Chancery rule recognized, a

self-represented lay litigant should receive only a “moderate” or

“reasonable” allowance for the loss of time devoted to preparing

and presenting the case.  This excludes routine awards on a per

diem basis to litigants who would ordinarily be in attendance at

court in any event.  The trial judge is particularly well-placed

to assess the appropriate allowance, if any, for a self-

represented litigant, and accordingly, the trial judge should

either fix the costs when making such an award or provide clear

guidelines to the Assessment Officer as to the manner in which

the costs are to be assessed.

CONCLUSION

[27] For these reasons, I would allow the appeal, and set aside

the Certificate. It is still necessary to determine whether the

amounts claimed for the salaried associates, partners and

articling student are reasonable.  Accordingly, I would refer the

matter back to the Assessment Officer with a direction that the

costs be assessed in accordance with these reasons.  The

appellant is also entitled to costs of the Assessment and of this

appeal.

172.         As stated in Fong, et al v. Chan, et al, 1999, supra, “Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity” such as is the case with the Plaintiff in this matter before this Court. It is abundantly clear that the Plaintiff in this matter devoted copious amounts of his time over many months of his time and effort to present some very interesting and thought-provoking legal argument ordinarily done by a lawyer, and is evidenced in the quality and the voluminous material presented to the Court for consideration in this matter.

173.         The Plaintiff contends that it is now well established by the courts that lay litigants may recover costs, including counsel fees, which is a clear trend of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

174.         As stated above in Fong, et al v. Chan, et al, 1999, supra, as a matter of principle, it seems difficult to justify a categorical rule denying recovery of costs by self-represented litigants.

175.         As stated above in above in Fong, et al v. Chan, et al, 1999, supra, paragraph 22  “modern cost rules are designed to foster three fundamental purposes:

(1) to indemnify successful litigants for the cost of litigation;

(2) to encourage settlements; and

(3) to discourage and sanction inappropriate behaviour by litigants.” 

All three purposes are fostered by allowing the trial judge discretion to award costs to self-represented litigants.

176.         Self-represented lawyers are entitled to indemnity on the ‘time is money’ or ‘opportunity cost’ rationale and it is difficult to see why the opportunity cost rationale should not be more generally applicable to self-represented litigants, such as the Plaintiff  in this matter before this Honorable Court.

177.         The self-represented litigants must possess skills for which they customarily are remunerated on the regular work week basis, and if the law is prepared to compensate lawyers for ‘loss of time’ when devoting their efforts to their own cause, the same entitlement should extend to self-represented lay litigants who are able to demonstrate the same loss.

178.         Costs may be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer therefore, retained to conduct the litigation, further, that as a result, they incurred according to “opportunity cost rationale” costs by foregoing remunerative activity, additionally useful Costs are a useful tool of the Court to encourage settlements or to discourage or sanction inappropriate behavior. 

179.         The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self- represented litigant, and accordingly, the trial judge may either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed.

180.         Having considered the above here within provided arguments for costs, this Honorable Court may find it appropriate to Order the Defendant to pay costs throughout, in addition to all reasonable disbursements. 

ALL OF THIS respectfully submitted this 10^th day of February, 2011.

____________________

Plaintiff André Murray 

D

PART VI – ORDERS SOUGHT

1. That, pursuant to section 52.1 (1) (b) of the Mechanics’ Lien Act,  this action be continued until …………….. or further Order of this Court,

2. Removed

3. That the Defendant pay costs of the within Motion,

4. Such further and other relief as to this Honorable Court may appear just.

E

SCHEDULE “A”       LISTED  AUTHORITIES

1. Reference: Prejudice is defined by Black's Law Dictionary (8th ed. 2004), at Page 3738

2. Reference:  Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) The Honourable Justice Richard stated the following regarding the criteria for extending time.                                                                                                    (Please see paragraph 18) at the following address:

http://www.canlii.org/en/nb/nbca/doc/2010/2010nbca55/2010nbca55.html

3. Reference: Novotny v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14762 (F.C.) MR. JOHN A. HARGRAVE, PROTHONOTARY, stated the test for an extension of time.                                                                               (Please see at paragraphs 2 – 6) at the following address:

http://www.canlii.org/en/ca/fct/doc/2000/2000canlii14762/2000canlii14762.html

4. Reference: Fair is defined by at Merriam Webster online at the following: address:  http://www.merriam-webster.com/dictionary/fair

5. Reference: Black's Law Dictionary (8th ed. 2004), defines fair,                    (Please see at at Page 1788)

6. Reference: audi alteram partem is found at legal-dictionary.thefreedictionary.com

Please see at the following address:

http://legal-dictionary.thefreedictionary.com/audi+alteram+partem

7. Reference: audi alteram partem found at wikipedia.org                                                Please see at the following address:

http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua

8. Reference: audi alteram partem found at duhaime.org                                                       Please see at the following address:

http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx

9. Reference: audi alteram partem found at wikipedia.org                                              Please see at the following address:

http://en.wikipedia.org/wiki/Audi_alteram_partem

10. Reference: Black's Law Dictionary (8th ed. 2004),

      defines merits Please see at Page 3136

11. Reference: Black's Law Dictionary (8th ed. 2004),

      defines Construe Please see at Page 947

12. Reference: Black's Law Dictionary (8th ed. 2004),

      defines ‘Just’ Please see at Page 2526

13. Reference: Merriam-webster.com

      defines ‘merit’ Please see at the following address

(http://mw4.merriam-webster.com/dictionary/merits)

14. Reference: ‘on merits’ is defined by legal-dictionary.com                                            Please see at the following address:

http://legal-dictionary.thefreedictionary.com/on+the+merits on the merits

15. Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Justice H. H. McLellan stated his view regarding the discretion of the Trial Judge and also his view that the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits.                                              (Please see at page 9 to page 17).

      found at the following address:

http://www.canlii.org/en/nb/nbqb/doc/1995/1995canlii6205/1995canlii6205.html

16. Reference: Western Surety Co. v. National Bank of Canada, 2001 NBCA 15 (CanLII) J. ERNEST DRAPEAU, J.A..  regarding application of Rule 2.02 (Please see at paragraph 91) at the following address:

http://www.canlii.org/en/nb/nbca/doc/2001/2001nbca15/2001nbca15.html

17. Reference: Black's Law Dictionary (8th ed. 2004),                                              defines ‘enjoin’ Please see at Page 1608

18. Reference: In Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB C.A.)  Justice TURNBULL, J.A. stated the following regarding the application of Rule 2.01

     (Please see beginning at the end of page 6 through to page 8) at the following:

http://www.canlii.org/en/nb/nbca/doc/1995/1995canlii6225/1995canlii6225.html

19. Reference: Furthermore in LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) RIDEOUT, J. stated regarding applying Rule Rules 1.03(2); 2.02; 3.02(1) and (2) (Please see at paragraph 11 to 19) at the following address:

http://www.canlii.org/en/nb/nbqb/doc/2005/2005nbqb142/2005nbqb142.html

20. Reference: In East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003 NBQB 268 (CanLII) Justice RIORDON, J. stated the following regarding Rule 1.03, Rule 2.02,. and Rule 1.03(2):                                                             (Please see at paragraph 25 – 28) at the following address:

http://www.canlii.org/en/nb/nbqb/doc/2003/2003nbqb268/2003nbqb268.html

21. Reference: In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A. LaVIGNE stated the following regarding granting an extension of time                    (Please see at paragraph 15 – 42), at the following address: 

http://www.canlii.org/en/nb/nbqb/doc/2003/2003nbqb454/2003nbqb454.html

22. Reference: As stated in Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.) by Justice LASKIN J.A :” Third, prejudice that will defeat an extension of time for service must be caused by the delay.  Prejudice to the defence that exists whether or not service is delayed ordinarily is not relevant on a motion to extend the time for service”

      (Please see at paragraph 16) at the following address

http://www.canlii.org/en/on/onca/doc/2000/2000canlii3904/2000canlii3904.html

23. Reference: in Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII) Justice Benjamin B. Taylor stated the following regarding the law for extending the time for service:   

    (Please see at paragraph 32 – 38)  at the following address:

http://www.canlii.org/en/pe/pesctd/doc/2006/2006pesctd52/2006pesctd52.html

24.    Reference:  In, Bélanger v. Roussel, 2006 NBCA 2 (CanLII) Chief Justice Drapeau C.J.N.B. stated the following regarding ruling on an application under Rule 62.24(1);                                                                                                            (may it please the Court; at paragraph 6)  url link is provided below::

      http://www.canlii.org/en/nb/nbca/doc/2006/2006nbca2/2006nbca2.html

25. Reference:  In Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.) Justice Deschênes, J.A. makes “such other order as may be just” pursuant to Rule 62.24(1)(c) of the Rules of Court; (may it please the Court; at paragraph 2) url link is provided below::

http://www.canlii.org/en/nb/nbca/doc/2003/2003canlii26208/2003canlii26208.html

26. Reference:  In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The Honorable Chief Justice J. Ernest Drapeau regarding Rule 62.24(1) did take a position on this matter finally awarding costs to a self-represented appellant; (may it please the Court; beginning at page 1 until and including page 3)url link is provided below::

http://www.canlii.org/en/nb/nbca/doc/2003/2003nbca79/2003nbca79.html

27.  Reference:   Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) Justice Robert J. Sharpe J.A stated as follows regarding the right of self-represented lay litigants to recover Costs.                                                                                  (Please see below, from paragraph 15 though to and including paragraph 27), at the following URL: http://www.canlii.org/en/on/onca/doc/1999/1999canlii2052/1999canlii2052.html

F

SCHEDULE “B” TEXT OF RELEVANT PROVISIONS OF                 STATUTES OR REGULATIONS

Statutes

CITATION, APPLICATION AND INTERPRETATION

1.02 Application

These rules apply to all proceedings in the Court of

Queen’s Bench and the Court of Appeal unless some other

procedure is provided under an Act.

CITATION, APPLICATION AND INTERPRETATION

1.03 Interpretation

1.03 (2) These rules shall be liberally construed to secure

the just, least expensive and most expeditious determination

of every proceeding on its merits.

2.01 The Court Dispensing with Compliance

The court may at any time dispense with compliance

with any rule, unless the rule expressly or impliedly provides

otherwise.

2.02 Effect of Non-Compliance

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 in dispute

between the parties. In particular, the court shall not set

aside any proceeding because it ought to have been commenced

by an originating process other than the one employed.

2.03 Attacking the Regularity of Proceedings

A motion to attack a proceeding for irregularity shall be

made within a reasonable time, and shall not be allowed if

the party applying has taken a further step in the proceeding

after having knowledge of the irregularity.

18.02 How Personal Service Shall be Made

(1) Personal service shall be made as follows:

Individual

(a) on an individual, other than a person under disability,

by leaving a copy of the document with him;

18.03 Other Ways to Effect Personal Service

Where available

(1) With the exception of Rules 33.03 and 55.03,

where personal service is required by these rules, any appropriate

method of service authorized by this subrule

may be used.

Service by Prepaid Mail or Prepaid Courier

(3) Where personal service of a document may be

made by leaving a copy with a person pursuant to Rule

18.02(1), such service may be made anywhere in Canada

by sending a copy of the document, together with an Ac-

knowledgement of Receipt Card (Form 18A), by prepaid

mail or prepaid courier addressed to the person at the last

known address of the person.

(4) Service by prepaid mail or prepaid courier shall

be deemed to have been effected only if any one of the following

is returned to and received by the sender:

(a) the Acknowledgement of Receipt Card bearing a

signature which purports to be the signature of the person

to whom the document was sent;

(b) a post office receipt bearing a signature which

purports to be the signature or a copy of the signature

of the person to whom the document was sent;

(c) any other form of acknowledgement of receipt in

writing bearing a signature which purports to be the

signature or a copy of the signature of the person to

whom the document was sent; or

(d) confirmation in writing from the carrier that the

document was delivered to the person to whom the

document was sent.

(5) Service by prepaid mail or prepaid courier shall

be deemed to have been effected on the date the sender receives

a receipt or confirmation under paragraph (4).

20.01 Time for Filing and Serving Statement of Defence

Subject to Rule 20.02, a Statement of Defence (Form

27A) shall be filed and served

(a) within 20 days after service of the Statement of

Claim where the defendant is served in New Brunswick,

(b) within 40 days after service of the Statement of

Claim where the defendant is served elsewhere in Canada

or in the United States of America, or

(c) within 60 days after service of the Statement of

Claim where the defendant is served anywhere else.

20.02 Notice of Intent to Defend

(1) Any defendant served with a Statement of Claim

who intends to defend the action may, within the time limited

for filing and serving his Statement of Defence, file

and serve a Notice of Intent to Defend (Form 20A).

(2) Any defendant who files and serves a Notice of

Intent to Defend within the time limited for so doing, shall

have an additional 10 days within which to file and serve

his Statement of Defence, and he shall be deemed to have

submitted to the jurisdiction of the court.

27.03 Service of Pleadings

Who is to be Served

(1) Every pleading shall be served

(a) initially on every opposite party and on every

other party who has filed and served a pleading or a Notice

of Intent to Defend in the action or in a counterclaim,

cross-claim or third or subsequent party claim in

the action, and

(b) subsequently on every other party forthwith after

he files and serves a pleading or a Notice of Intent to

Defend in the action or in a counterclaim, cross-claim

or third or subsequent party claim in the action.

27.04 Time for Filing and Serving Pleadings

(1) The time for filing and serving a Statement of

Claim is prescribed by Rule 16.08.

(2) The time for filing and serving a Statement of Defence

is prescribed by Rule 20.01.

(3) A Reply shall be filed and served within 10 days

after service of the Statement of Defence.

(4) The time for filing and serving pleadings in a

counterclaim is prescribed by Rule 28.

(5) The time for filing and serving pleadings in a

cross-claim is prescribed by Rule 29.

(6) The time for filing and serving pleadings in a

third party claim is prescribed in Rule 30.

27.08 Particulars

(1) Where a party files and serves a Demand for Particulars

(Form 27L) demanding particulars of an allegation

in the pleading of an opposite party, and the opposite

party fails to supply sufficient particulars within 10 days

after service of the demand, the court may, upon such

terms as may be just, order that such particulars be filed

and served within a specified time.

(2) Where a party demands particulars for the purpose

of pleading, he shall have the same length of time

(a) after receipt of the particulars, or

(b) after failure to supply sufficient particulars as provided

in paragraph (1),

to serve such pleading as he had when the demand was

served, but such length of time shall not be less than 5

days.

(3) The Statement of Particulars (Form 27M) shall be

served on all parties and filed with the clerk.

59.01 Authority of the Court

(1) Subject to any Act and these rules, the costs of a

proceeding or a step in a proceeding are in the discretion

of the court and the court may determine by whom and to

what extent costs shall be paid.

Law Society of New Brunswick Code of Professional Conduct CODE OF PROFESSIONAL CONDUCT CHAPTER FIFTEEN is provided bellow:

COLLEAGUES

CHAPTER 15

RULE

The lawyer shall practise good faith, courtesy and collegiality in all contacts with other lawyers and with their representatives.

Good faith, (professional) courtesy, collegiality

2. Without derogating from the broad application intended of the elements of the Rule in this chapter the following directives shall be observed as minimums by the lawyer in practising good faith, courtesy and collegiality as envisaged by the Rule:

(iii) The lawyer shall agree to reasonable requests by another lawyer for an extension of time, the waiver of a procedural formality and other similar accommodations as long as the position of the client of the lawyer will not be prejudiced materially by agreeing to the accommodation.

(v) The lawyer shall be punctual in fulfilling commitments made to another lawyer and shall respond on a timely basis to all communications from another lawyer that contemplate a reply.

(vii) The lawyer shall practise the same principles of good faith and courtesy toward laypersons lawfully representing themselves or others in a matter as the lawyer is required to observe toward other lawyers.

Avoidance of sharp practice

4. The lawyer shall not engage in sharp practice in the practice of law .  Without limiting this proscription the lawyer shall not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of another lawyer not going to the merits or involving a sacrifice or prejudice of the rights of the client. In addition the lawyer shall not impose upon another lawyer impossible, impractical or manifestly unfair conditions of trust including those with respect to time restraints and the payment of penalty interest .

G

SCHEDULE “C”             LISTED  AUTHORITIES – FULL DISCISION CITED

1. Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII)

2. Novotny v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14762 (F.C.)

3. Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.)

4. Western Surety Co. v. National Bank of Canada, 2001 NBCA 15 (CanLII)

5. Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB C.A.)

6. LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII)

7. East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003 NBQB 268 (CanLII)

8. Agnew v. Knowlton, 2003 NBQB 454 (CanLII)

9. Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.)

10. Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII)

11. Bélanger v. Roussel, 2006 NBCA 2 (CanLII)

12. Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.)

13. Michaud v. Robertson, 2003 NBCA 79 (CanLII)

14. Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.)

Court File Number: F/C/104/09

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON

BETWEEN:

ANDRE MURRAY

                                        Plaintiff,

                    -and-

BETTY ROSE DANIELSKI

                                       Defendant,

AFFIDAVIT

I, André Murray of the City of Fredericton, in the county of York and Province of New Brunswick, MAKE OATH AND SAY AS FOLLOWS:

1.      I  André Murray as above indicated am the Plaintiff in this matter; as such have a true and correct knowledge of the matters herein deposed to except where otherwise stated.

2.      I André Murray verily believe to be true, the entirety of the material found within as having practical importance, value, or effect, addressing the real nature and or essential matters before this Honorable Court:

a)      Book 1 the Plaintiff’s Submission and

b)     Book 2 the Plaintiff’s Submission 

 Filed by André Murray, Plaintiff within THE COURT OF QUEENS BENCH OF NEW BRUNSWICK, TRIAL DIVISION, JUDICIAL DISTRICT OF FREDERICTON, having a File Number – F/C/104/09. Furthermore, the Plaintiff’s submission is a study, a careful examination of certain contentions, by the various parties to this Action. Plaintiff André Murray has here within compiled a presentation - a juxtaposition of relevant precedent establishing case law. This is foremost an attempt to reveal the reality, that, of which, underlies the events, which have occurred to date.

3.      Furthermore, it must be noted, that, any arguments, found there within,      (Book 1 the Plaintiff’s Submission and Book 2 the Plaintiff’s Submission) and presented by Plaintiff André Murray, are entirely supported and or confirmed, by the use of directly quoted excerpt.

4.      Plaintiff André Murray has avoided arriving at conclusions, deduced by scanty evidence, or guesswork. Unless specifically stated otherwise, any assumption, or concession, would be made only tentatively, and for the sake of argument, in order to draw out and test its logical consequences. To assist in highlighting the discovered contradictions and or to oppose the hypothetical, by using formal legal argument, plea, or countervailing proof throughout.

5.      All references found within Book 1 the Plaintiff’s Submission and Book 1 the Plaintiff’s Submission are based on Plaintiff André Murray’s empirical knowledge, capable of being verified or disproved by his observation of the subject situation.

6.      This affidavit is made in support of Book 1 the Plaintiff’s Submission and Book 1 the Plaintiff’s Submission Court Filed by Plaintiff André Murray.

SWORN TO AT THE City of Fredericton, In the County of York And Province of New Brunswick  this ______day of _______________ 2010.                    

BEFORE ME:                                               

                                              

_____________________________

A NOTARY PUBLIC or

COMMISIONER OF OATHS

PROVINCE OF NEW BRUNDSWICK

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_________________________                         André Murray