February 14, 2011 Unsigned Brief Second Hearing of a Continuance FC.104.09

7/29/2019 February 14, 2011 Unsigned Brief Second Hearing of a Continuance FC.104.09

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Court File Number: F/C/104/09

IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON

BETWEEN:

ANDR MURRAY

Plaintiff,

-and-

BETTY ROSE DANIELSKI

Defendant,_____________________________________________________________________

The Plaintiffs Pre-Hearing BriefRules of Court, Rule 38.06.1

Filed by the Self Represented Plaintiff Andr Murray_____________________________________________________________________

Andr Murray

The Plaintiff

31 Marshall Street,Fredericton,

New Brunswick,

E3A 4J8

Telephone Number:

(506) 472 - 0205E-mail address:

[email protected]

Solicitor for

Defendant

Defendant Betty RoseDanielski

E. Thomas Christie, QC

CHRISTIE LAW OFFICE

Suite 306,

212 Queen Street

Fredericton,New Brunswick

Canada

E3B 1A8Tel: (506) 472 2090

Fax: (506) 472 2091

E-Mail:[email protected]

Betty Rose Danielski

The Defendant

Apt 603166 Carlton Street

Toronto, Ont.

M5A 2K5


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PART 1 INDEX

The Plaintiffs Pre-Hearing Brief{(1) Unless ordered otherwise, each party to an application shall prepare a pre-hearing

brief containing}

PAGE

A. PART I INDEX _____________________________________________iiB. PART II STATEMENT OF FACTS ____________________________ 1

{(a) a succinct outline of the facts the party intends to establish,}

C. PART III - ISSUES _____________________________________________ 6{(b) a concise statement of the issues to be dealt with by the court,}

{(c) a concise statement of the principles of law on which the party relies and citation of

relevant statutory provisions and leading authorities, and}

1. Questions for the Court to answer ________________________________62. Introduction A. Should the Court grant a Continuance of the Mechanics Lien

Claim?_______________________________________________________9

3. Granting the continuance _______________________________________114. Rule 1.03 Interpretation ________________________________________205. Rule 2.01 and 2.02 ____________________________________________286. B. Should the Defendant pay costs of the within Motion?______________317. The Defendants conduct ______________________________________ 368. Defendants questionable conduct history: _________________________ 369. Cost Orders in favor of self-represented litigants_____________________38

D. PART VI ORDERS SOUGHT __________________________________42{(d) a concise statement of the relief sought by the party.}


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B

PART II STATEMENT OF FACTS

1. Plaintiff Andr Murray did file on April 16, 2009 at 15:08 a FORM 2CLAIM FOR LIEN, Dated April 16, 2009 at the York County Registry

Office, New Brunswick.

2. Plaintiff Andr Murray did file with the Court of Queens Bench TrialDivision of New Brunswick, all subsequent documents necessary to

properly move the Mechanics Lien Claim forward, namely:

NOTICE OF ACTION (FORM 16 B) F/C/104/09 Dated andFiled April 21, 2009

CERTIFICATE OF PENDING LITIGATION F/C/104/09Dated and filed April 21, 2009

STATEMENT OF CLAIM (FORM 16C) Dated and filed May20, 2009

AMENDED STATEMENT OF CLAIM (FORM 16C) August21, 2009

3. The Plaintiff Andr Murray did cause the Service of the followingDocuments 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)


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4. The Plaintiff Andr Murray did cause the Service of the following herewithin 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.

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; AMENDED STATEMENT OF CLAIM (FORM 16C) Dated

August 21, 2009.

5. On November 26, 2009, Solicitor E. Thomas Christie for Defendant BettyRose Danielski, did file with the Client Services for Court of Queens

Bench Trial Division, Judicial District of Fredericton, a Defendants

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).

6. On November 26, 2009, Solicitor E. Thomas Christie for Defendant BettyRose Danielski, did file with the Court of Queens 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).


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7. On April 20, 2010, Plaintiff Andr Murray Filed a Notice of Motion (Form37A) 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 ).

8. A copy of the Notice of Motion, signed, Dated and filed April 20, 2010,supporting Affidavit of Plaintiff Andr Murray signed, Dated and filed

April 20, 2010 had 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.

9. The Plaintiff to date has never been served a certain AFFIDAVIT of BettyRose Danielski. May this please the Honorable Court that prior to a Court

hearing of this matter June 10, 2010, heard in Court of Queens BenchFredericton 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.

10.On the 10th day of June, 2010, in response to the Defendants DEMANDFOR PARTICULARS (FORM 27L), I Plaintiff Andr Murray filed with

Client Services for the Court of Queens Bench, Trial Division, Judicial


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District of Fredericton, a STATEMENT OF PARTICULARS (FORM

27M) signed Dated the 10th day of June, 2010.

11.On the 10th day of August, 2010, at 10:00AM, Plaintiff Andr Murray didserve 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 ).

12.I Plaintiff Andr Murray, November 9, 2010, regarding a related mattercurrently 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 Andr Murray is the

Defendant in that matter being heard in Moncton Trial Division. (Please

see RECORD ON MOTION BOOK 2 TAB 36).

13.On November 18, 2010, Plaintiff Andr Murray, received a copy of aletter, 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


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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 Andr 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 ).

14.On November 29, 2010, Plaintiff Andr Murray, as Defendant in the CourtHearing 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 entryinto 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.

15.May this please the Honorable Court Solicitor E. Thomas Christie forDefendant Betty Rose Danielski, to date has not filed with the Court of

Queens 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).


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PART III - ISSUES{(b) a concise statement of the issues to be dealt with by the court,}

1. Questions for the Court to answer Should the Court grant a Continuance of the Mechanics Lien Claim? Should the Defendant pay costs of the within Motion?

2. Introduction A. Should the Court grant a Continuance of theMechanics Lien Claim?

{(c) a concise statement of the principles of law on which the party relies andcitation of relevant statutory provisions and leading authorities, and}

16.The Plaintiff has been to this point unable to retrieve documents, necessaryto 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 retrieve the necessary documents, so important to

resolving this Action.

17.Not Granting the Plaintiffs Requested Order for or Continuance of thePlaintiffs 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.


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18.Should the Honorable Court not Grant the Plaintiffs Requested Order foror 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.

19.The Plaintiff respectfully contends that to be circumspect regarding thequestion of possible prejudice to the each respective Party, the Plaintiff is

confident the granting of the Plaintiffs 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.

20.Alternatively granting the requested Order for or Continuance will notprejudice 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 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


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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.

21.Please refer to the Maxim -Audi Alteram Partem -Latin; literally 'hear theother 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.


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22.The Plaintiff sincerely believes that DISCOVERY will reveal and removeany 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.

3 Granting the continuance

23.The Plaintiff argues that the Court may keep with the general directionexpressed 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.

24.The Plaintiff contends that in any event, the matter remained alive withinthe 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 discontinuanceof 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


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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 Plaintiffs

request for Consent to Orders of a Continuance in this case.

25.The Plaintiff argues that the principle of natural justice which is to hear theother 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 theCourt to ensure that justice is done in this subject matter before the Court.

26.The Plaintiff offers that it is in the interest of justice that the HonorableCourt grant the Order of Continuance of the Plaintiffs 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.


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27.The Plaintiff argues that the Defendants will not be prejudiced in anymeaningful manner if the Court grants the Plaintiffs 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.

28.The Plaintiff respectfully asserts that a refusal to grant the Plaintiffsrequest 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.

29.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 takingadvantage 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

RepresentedLitigantPlaintiff, a layperson lawfully requesting a Order be

granted for Continuance of the subject Action as stated here within and

throughout.

4 Rule 1.03 Interpretation


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30.Black's Law Dictionary (8th edition, 2004), defines Justice as The fair andproper 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

Plaintiffs request of the Defendants consent to a Continuance would be

beneficial. Consequently the Defendant having not granted, the Plaintiffs

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.

31.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 ofQueens Bench and the Court of Appeal unless some otherprocedure is provided under an Act.

32.A determination should be in keeping with the general direction containedin 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:


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CITATION, APPLICATION AND INTERPRETATION

1.03 Interpretation

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

33.The Plaintiff respectfully requests that the Honorable Court keep with thegeneral 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 intoconsideration the prejudice caused against the Plaintiff, if the Honorable

Court does not grant the Plaintiffs 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.

Reference: Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII)The Honourable Justice Richard stated the following regarding thecriteria for extending time.(Please see paragraph 18) at the following address:http://www.canlii.org/en/nb/nbca/doc/2010/2010nbca55/2010nbca55.html

34.The Plaintiff requests of this Honorable Court, to consider, that anyexisting 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


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done in the particular case may be relatively similar to existing

prerequisites for this Court to grant a Order for Continuance as requested.

35.The Plaintiffs position is that justice will be best served by granting therequested Order of a Continuance of the Plaintiffs Mechanics' Lien action

pursuant to Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b).

Reference: Novotny v. Canada (Minister of Citizenship andImmigration), 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

36.Considering the underlying principle of doing justice between the partiesmay this Court compare the here within above mentioned test in Novotny

v. Canada, 2000, supra, to the Plaintiffs Motion for Orders of

Continuance:

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

known:

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

37.In response to the first part of a test, as set out in Grewal v. Minister ofEmployment and Immigration (1986),the Plaintiff Andre Murray a

Residential Leasehold Tenant was caught unawares regarding a surpriseforced 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


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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 Murrays (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

Plaintiffs successful DISCOVERY subsequently and without delay the

Plaintiff did file a Notice of Motion to Rescind the October 20, 2009Eviction 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 Murrays property.

38.Plaintiff Andre Murray has attended three separate Court hearingsinvolving 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.


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

known:

2) and that he has an arguable case.

39.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.

40.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).

41.Merriam Webster Online Dictionary defines fair as an action marked byimpartiality and honesty. It involves acting without prejudice, favoritism orself interest. Fairness is then a cardinal principal that a civilized society

should advocate.

42.Black's Law Dictionary defines fair as free of bias or prejudice and itwould be most unfair for the Plaintiffs Mechanics Lien Action to not be

heard on the merits first by the Defendants 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.


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43.This Honorable Court must provide time to allow the Plaintiff to be heardon the matter before the Court as requested, with all the substantive

material contractual documents all evidence, regarding the Plaintiffs

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.

44.Please refer to the Maxim -Audi Alteram Partem -Latin; literally 'hear theother 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 lawwithout 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 Plaintiffs

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.

45.Further to the second part, of the previously mentioned, Grewal, supra, at116, three additional factors which come into play. May it please this

Honorable Court the reference follows:


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Second, a compelling explanation for delay may result in a timeextension where the arguable case is weak, and vice versa (Grewal,

supra, at 116).

46.Similarly to what was stated above in Novotny v. Canada, 2000, supra, thePlaintiff 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 impugnedMoncton 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.

47.Lastly, the third part of the previously mentioned three additional factorsfound 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 Courtcan 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).

48.The Defendant has filed voluminous material for the Court to considerregarding 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.


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49.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.

50.The Plaintiff when considering Rule 1.03(2) and when interpreting sameusing the here within above Definition language, Rule 1.03(2) suggests

same would read as follows:

These rules shall be liberallyconstrued(analyzed and the meaning of

explained ) to secure thejust (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 toextraneous or technical points, esp. of procedure).

51.The Plaintiff, requests that this Honorable Court keep with the generaldirection contained in the New Brunswick Rules of Court; Rule 1.03(2). to

secure a fair, just and balanced determination, based on the MERITS.

Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Justice

H. H. McLellan stated his view regarding the discretion of the TrialJudge and also his view that the Court of Appeal has reaffirmed thatmatters of civil procedure should be decided on their substance andmerits. (Please see at page 9 to page 17).found at the following address:


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

52.The Plaintiff on the grounds as stated found in Daly v. Petro-Canada, 1995CanLII 6205 (NB Q.B.) 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.

Reference: Western Surety Co. v. National Bank of Canada, 2001NBCA 15 (CanLII) J. ERNEST DRAPEAU, J.A.. regarding

application of Rule 2.02 (Please see at paragraph 91) at the followingaddress:http://www.canlii.org/en/nb/nbca/doc/2001/2001nbca15/2001nbca15.html

53.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 theRules of Court enjoins courts to overlook

procedural errors and to take appropriate measures to secure the justdetermination of the matters in dispute between the parties.

5 Rule 2.01 and 2.02

Reference: In Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII6225 (NB C.A.) Justice TURNBULL, J.A. stated the followingregarding the application of Rule 2.01(Please see beginning at the end of page 6 through to page 8) at thefollowing:

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


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54.A corresponding question, relative to the matters before this Court is foundreferred 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".

55.Above paragraph has a question - answer should be no; the Plaintiff assertsthat 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.

56.The rules are the vehicle that enables rights to be delivered and claims tobe 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


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should they be used to preclude the enforcement of claims which are

derived from the substantive law.

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

57.As found provided above, in LeBlanc v. Bastarache, supra, the HonorableCourt must consider: what is necessary to see that justice is done? The

answer may be, if the refusal to grant the Plaintiffs 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.

58.The rule which emerges from these cases unequivocally recognizes that theCourt'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

Reference: In East Texas Distributing Inc. v. Video Solutions (Atlantic)Ltd., 2003 NBQB 268 (CanLII) Justice RIORDON, J. stated thefollowing 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


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59.The Plaintiff has noted a similarity to the above provided case, in EastTexas Distributing Inc. v. Video Solutions, supra, it would not be fair to

disallow the Continuance, in such circumstances as before this Honorable

Court.

60.The Plaintiff contends that as provided above, in East Texas DistributingInc. 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 prescribedby the Mechanics Lien Act, which, can be cured by the granting of a

Continuance, so that this matter may be heard on its merits.

Reference: In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) JusticeLUCIE A. LaVIGNE stated the following regarding granting anextension of time.; (Please see at paragraph 15 42),at the following URL: as follows:http://www.canlii.org/en/nb/nbqb/doc/2003/2003nbqb454/2003nbqb454.html

61.As stated above, in Agnew v. Knowlton, supra, the Plaintiff comprehendsthat each case should be considered in the light of its own peculiar


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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 substantialinjustice 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.

62.Though above mentioned Case is focused on granting a extension of timeto 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,

63.To ensure that justice is done in this matter before the Honorable Court theContinuance 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.


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2) while to permit it is not going to work any substantial injustice to

the respondent or prejudice the respondent 's defence,

64.The Defendant Betty Rose Danielski current Title holder of subjectProperty, 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.

65.As stated in Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.) by JusticeLASKIN 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.

66.In interest of justice, as above then the writ should be renewed, in thiscase 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.

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:


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

52.html

67.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

Plaintiffs 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 Plaintiffs knowledge nothing prejudicial will occur, to theDefendant if the Court grants Orders of a Continuance.

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

68.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


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Honorable Justice Benjamin B. Taylor decision that granting the requested

Continuance is most appropriate.

69.As Justice Laskin J.A. commented: I see no rational basis for refusing toextend 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.

70.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 [extensionof time for service] will advance the just resolution of the dispute,without prejudice or unfairness to the parties.

71.The Law Society of New Brunswick Code of Professional Conduct,CHAPTER 15 (4) states: the lawyer shall not take advantage of oract

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

ofthe 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


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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.

72.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..

6 B. Should the Defendant pay costs of the within Motion?

73.Plaintiff Andr Murray has requested consent of the Defendant in thematter of a Continuance of the Plaintiffs 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 receivedreasonable justification for the Plaintiffs request for the Defendants

consent to Continuance litigation continued to be pursued by the Defendant


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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 Defendants lack of cooperation and the

/Defendants 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 MOTIONBOOK 1 TAB 33 -. A letter requesting Consent to a Continuancewas served on Solicitor for Defendant Betty Rose Danielski, E. ThomasChristie, on May 31, 2010.

2. Please see provided copy of a Letter found at RECORD ON MOTIONBOOK 2 TAB 39. -Exhibit V. A letter Dated November, 22nd,2010, Letter requesting that the Defendant consent to a Continuance ofthe 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 MOTIONBOOK 2 TAB 40. -Exhibit X. Copy of Letter #2 to SolicitorThomas Christie, Dated 22nd day of November, 2010, requesting thatthe Defendant consent to a Continuance of the subject Action pursuantto section 52.1 (1) (b) of the Mechanics' Lien Act.

4.

Please see provided copy of a Letter found at RECORD ON MOTIONBOOK 2 TAB 42 -Exhibit Y. Copy of Letter Dated 23rd day ofNovember, 2010, requesting that the Defendant consent to aContinuance of the subject Action pursuant to section 52.1 (1) (b) ofthe Mechanics' Lien Act


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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 thesubject Action pursuant to section 52.1 (1) (b) of the Mechanics' LienAct

74.The Plaintiff has made every effort to find a fair, reasonable and costefficient 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.

75.The Plaintiff, being a Self Represented litigant, has adhered to the Rules ofCourt, 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.

76.Costs may be awarded to those lay litigants who can demonstrate that theydevoted 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 forgainful employment, suffering a significant loss of income. The Plaintiff,

requests that the Court Order cost in the Favor of the Plaintiff in this

matter.


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7 The Defendants conduct

77.The Defendant on the Other Hand has refused to consent to a Continuanceof 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 Plaintiffs subject Mechanics Lien Action.

78.The Plaintiff requests an Order that the Defendant pay costs of the withinMotion 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 Brunswicks 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.

79.The Rules of Court Rule 2.02 provides that A procedural error, includingfailure to comply with these rules or with the procedure prescribed by anAct 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,


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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.

80.As a note: The Law Society of New Brunswick Code of ProfessionalConduct, 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 thesame 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.

81.The Plaintiff comprehends the Solicitor for the Defendant, regarding notadvising his client to consent to a Continuance, (when requested by the

Plaintiff) Defendants 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


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Brunswick Code of Professional Conduct, instead the opposite has

occurred therefore causing unnecessary delay and expense Court litigation.

82.It does appear to the Plaintiff, that the Law Society of New BrunswickCode of Professional Conduct, CHAPTER 15 (2)(iii), 15 (2) ((v), 15 (2)

(vii) and 15 (4) compels the Defendants Solicitor to not take advantage of

slips, irregularities or mistakes on the part of the Plaintiff, not going to the

merits, which does notinvolve a prejudice of the rights of the Solicitors

client. Furthermore, the Solicitor for the Defendant should have consented

to the reasonable requests for a Continuance.

83.Accordingly, one would expect the same principles of good faith andcourtesy 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 Actschedule) 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.

Reference: In, Blanger v. Roussel, 2006 NBCA 2 (CanLII) ChiefJustice Drapeau C.J.N.B. stated the following regarding ruling on an

application under Rule 62.24(1);( at paragraph 6) url link is provided below::http://www.canlii.org/en/nb/nbca/doc/2006/2006nbca2/2006nbca2.html


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84.Though Chief Justice Drapeau C.J.N.B. in, Blanger v. Roussel, wasaddressing 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 Plaintiffs view, may

apply.

85.First, as mentioned in Blanger v. Roussel, 2006, supra, when ruling on ana 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 resendingthe correspondence while at the same time necessarily researching the

Rules of Court studying for his possible errors when in fact it was not

necessary.

86.The Plaintiff should not be placed in a position of having to chase theDefendants Solicitor to receive documents that the Rules of Court compel

the Respondents Solicitor to serve upon the Plaintiff according to the

Rules of Court.


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87.Furthermore, all parties to any Court action must be able to rely upon theCode 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.

Reference: In Charlebois v. Saint John (City of), 2003 CanLII 26208(NB C.A.) Justice Deschnes, J.A. makes such other order as may bejust pursuant to Rule 62.24(1)(c) of the Rules of Court; (may it pleasethe Court; at paragraph 2) url link is provided below::http://www.canlii.org/en/nb/nbca/doc/2003/2003canlii26208/2003canlii26208.html

88.In Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.)Justice Deschnes, 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 ofCourt. The Registrar shall issue a Notice of Perfected Appealwhen the Appellant files the documents required in accordance

with theRules of Court.

89.As stated in Charlebois v. Saint John, the Plaintiff requests that this Courtmake such other order as may be just in reflection of the following history

demonstrated by the egregious behavior of the Defendants Solicitor. The

rule of Agent and Principle continue to apply.

Reference: In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The

Honorable Chief Justice J. Ernest Drapeau regarding Rule 62.24(1) didtake a position on this matter finally awarding costs to a self-represented appellant; (may it please the Court; beginning at page 1until and including page 3)url link is provided below::


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

90.As referenced in Michaud v. Robertson, supra, is an example of anoccasion, the Court found it appropriate to award the self-represented

Appellant an order of costs against the moving parties.

91.The Rules of Court which the Solicitor for the Defendant has a history ofnon compliance with, Rules of Court, Rule18.02, Rule 18.03, Rule 20.01,

Rule 20.02, Rule 27.03, and Rule 27.04.

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

8 Defendants questionable conduct history:

93.In the Matter regarding non adherence to the Rules of Court as it pertainsto 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 Plaintiffs 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


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94.The Plaintiff has noted that the Defendant has: Not replied to email correspondence; Not replied to facsimile correspondence; Not replied to when Served; Insisted that the Plaintiff must provide documents when this

was not the case;

Did not Serve the Plaintiffs documents according to the rules ofCourt;

95.On November 26, 2009, Solicitor E. Thomas Christie for Defendant BettyRose Danielski, did file with the Court of Queens Bench Trial Division,

Judicial District of Fredericton, a Defendants 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).

96.On November 26, 2009, Solicitor E. Thomas Christie for Defendant BettyRose Danielski, did file with the Court of Queens 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).

97.Solicitor E. Thomas Christie for Defendant Betty Rose Danielski, has notto date (Plaintiff Andre Murray searched the file on Wednesday, February


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9, 2011) filed with the Court of Queens Bench Trial Division, Judicial

District of Fredericton, a Statement of Defense, as required to by the Rules

of Court Rule2 7.04(2) and 20.02(b).

98.Provided below are the Rules of Court which the Defendant has notadhered to date:

Rules of Court Rule 18.02 Rules of Court Rule 20.01 Rules of Court Rule 20.02 Rules of Court Rule 27.01 Rules of Court Rule 27.03 Rules of Court Rule 27.04 Rules of Court Rule 27.08

99.Costs are a useful tool of the Court to encourage settlements or todiscourage or sanction inappropriate behavior, such as the consistent and

flagrant behavior of the Defendant, as indicated above. The Plaintiffencourages the Court to take note and appropriately Order Costs against the

Defendant in this matter. To not mark the Courts disapproval of this type

of conduct, by not awarding costs in the Plaintiffs favor, sets a negative

standard that others may follow and sends the wrong message, regarding

conduct at Court.

9 Cost Orders in favor of self-represented litigants

Reference: 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 paragraph45), at the following URL:


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http://www.canlii.org/en/nb/nbca/doc/2006/2006nbca54/2006nbca54.html

100. As stated by Chief Justice J. ERNEST DRAPEAU above in McNicholv. 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.

101. The Plaintiff argues that after due consideration, this Honorable Courtmay 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.

102. As similarly stated above in McNichol v. Co-operators GeneralInsurance 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.

103. Following the lead of the above quoted Court Decision, McNichol v.Co-operators General Insurance Company, 2006, supra, this Honorable


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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.

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 ofself-represented lay litigants to recover Costs.(Please see below, from paragraph 15 though to and includingparagraph 27), at the following URL:http://www.canlii.org/en/on/onca/doc/1999/1999canlii2052/1999canlii2052.html

104. As stated in Fong, et al v. Chan, et al, 1999, supra, Costs should onlybe 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.

105. The Plaintiff contends that it is now well established by the courts thatlay 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.


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106. As stated above in Fong, et al v. Chan, et al, 1999, supra, as a matter ofprinciple, it seems difficult to justify a categorical rule denying recovery of

costs by self-represented litigants.

107. 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 toaward costs to self-represented litigants.

108. Self-represented lawyers are entitled to indemnity on the time ismoney 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.

109. The self-represented litigants must possess skills for which theycustomarily 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.

110. Costs may be awarded to those lay litigants who can demonstrate thatthey 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


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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.

111. The trial judge is particularly well-placed to assess the appropriateallowance, 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.

112. 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.

PART VI ORDERS SOUGHT{(d) a concise statement of the relief sought by the party.}

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

2. Removed3. That the Defendant pay costs of the within Motion,4. Such further and other relief as to this Honorable Court may appear

just.

ALL OF THIS respectfully submitted this February 14, 2011.

____________________Plaintiff Andr Murray

February 14, 2011 Unsigned Brief Second Hearing of a Continuance FC.104.09

Documents

Transcript of February 14, 2011 Unsigned Brief Second Hearing of a Continuance FC.104.09