Plaintiffs Brief - Plaintiffs Motion Joinder of Parties and Claims

8/3/2019 Plaintiffs Brief - Plaintiffs Motion Joinder of Parties and Claims

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Court File Number: F/C/45/11

IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF FREDERICTON

BETWEEN:

ANDR MURRAY

Plaintiff,

-and-

THE CITY OF FREDERICTON,and others

Defendants,

_______________________________________________________

Pre Hearing BriefFiled by Plaintiff ANDRE MURRAY

To be Used on the Plaintiffs Motion for Joinder of Parties and ClaimsScheduled to be Heard January 19, 2012.

________________________________________________________

Andr MurrayPlaintiffSelf Represented31 Marshall Street,Fredericton, NewBrunswick,E3A 4J8

Leanne Murray

Associate with

Mcinnes Cooper,Barker House, Suite 600

570 Queen Street

PO Box 610 Fredericton

NB E3B 5A6tel +1 (506) 458 1624

fax +1 (506) 458 9903

cell +1 (506) 470 6696

Leanne Murray Solicitor for

The City of Fredericton,Fredericton Police Force.

Chief of Police Barry

MacKnight,Sergeant Myers,

Constable Mike Fox,

Constable Patrick Small,Constable Nancy Rideout,

Constable Debbie Stafford,

Constable Michael Saunders

Neil Rodgers

Self Represented15 Fisher Ave

Fredericton, NB

E3A 4J1

Trina Rodgers

Self Represented15 Fisher Ave

Fredericton, NBE3A 4J1


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Plaintiffs Pre Trial Brief

Part I

index

Page

Part I An index of the contents;_____________________________________ i

Part II A concise statement of all relevant facts with

such references to the evidence as may be necessary;___________________ 1

Part III A concise statement of the argument, law, and

authorities relied upon;

Introduction____________________________________________________ 2

Limitation of Actions Act (S.N.B. 2009, c. L-8.5)_____________________ 5

Section 21 ____________________________________________________ 10

Section 5(2) ___________________________________________________ 12

Section 6 _____________________________________________________ 14

Rules of Court JOINDER OF CLAIMS AND PARTIES ______________ 15

27.10 Amendment of Pleadings ___________________________________ 22

Extend Rule 16.08 (1)____________________________________________31

Equity________________________________________________________ 36

Cost Orders in favor of self-represented litigants____________________ 47

Part IV A concise statement of the order sought from the Court,_______ 49


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Part II

A concise statement of all relevant facts with such references to the evidence as

may be necessary;

Filing Action - Court File Number: F/C/45/11

1. March, 4, 2011 I Andre Murray did file a NOTICE OF ACTIONWITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March,4, 2011 Court File Number: F/C/45/11 with the Court Client ServicesFredericton New Brunswick.

2. At 3:55 PM on the 2nd day, of September, 2011, I Andr Murray,served, Defendants THE CITY OF FREDERICTON inter alia, with a NOTICE

OF ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A),Dated March, 4, 2011, Court File Number: F/C/45/11

3. September, 8, 2011, I Andre Murray did file (as noted above within 7days of service of original claim) a AMENDED NOTICE OF ACTION WITHSTATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8,2011, Court File Number: F/C/45/11 with Client Services for Court of QueensBench, Fredericton New Brunswick;

4. At 2:09 PM on the 9th day, of September, 2011, I Andr Murray,served, Defendants THE CITY OF FREDERICTON inter alia;

5. At 6:30 PM on the 15th day, of September, 2011, , I Andr Murray,served, Defendant Neil Rodgers;

6. At 6:30 PM, on the 15th day, of September, 2011, served, DefendantTrina Rodgers;

7. At 3:40 PM, on the 21st day, of September, 2011, I Andr Murray,again served, Defendants THE CITY OF FREDERICTON and others;

8. At 10:00am on the 3rd day, of October, 2011, I Andr Murray, served,Defendant Chief of Police Barry MacKnight;

9. 1:00pm, the 6th day, of October, 2011,, I Andr Murray, served,Defendant Constable Patrick Small;


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10. 10:00 am, the 7th day, of October, 2011, I Andr Murray, served,Defendant Sergeant Matt Myers;

11. 10:00 am, the 7th day, of October, 2011, I Andr Murray, served,Defendant Constable Debbie Stafford;

12. 11:00 am, the 9th day, of October, 2011, I Andr Murray, served,Defendant Constable Mike Fox;

13. 10:20 am, the 11th day, of October, 2011, I Andr Murray, served,Defendant Constable Nancy Rideout;

Part III

A concise statement of the argument, law, andauthorities relied upon;

Introduction

The grounds to be argued

14. The proposed amendments state legally valid claims.

15. On motion at any stage of an action the Honorable Court may grant

leave to amend a pleading on such terms as are just, unless prejudice would

result that could not be compensated for by costs or an adjournment, in this case

no such prejudice exists.

16. Every person whose presence as a party is by law necessary to enable

the court to adjudicate effectively and completely on the issues in a proceeding

shall be joined as a party to the proceeding.

17. Despite the expiry of the relevant limitation period established by

Limitation of Actions Act, SNB 2009, c L-8.5, a claim may be added, through a

new or an amended pleading, to a proceeding previously commenced if the


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added claim is related to the conduct, transaction or events described in the

original pleadings and the added claim is made by a party to the proceeding

against another party to the proceeding and does not change the capacity in

which either party sues or is sued.

18. There is a common series of events underlying the Plaintiffs claims,

tying the separate Defendants into a larger ongoing theme.

19. The plaintiff has a separate claim against TRINA RODGERS, NEIL

RODGERS, CONSTABLE PATRICK SMALL,CONSTABLE DEBBIE

STAFFORD, CONSTABLE MICHAEL SAUNDERS, and JOHN DOE 2 are

personally arising out of these transactions, then clearly they should be added as

a party so that all claims can be adjudicated effectively and completely in one

proceeding.

20. The objectives of the compulsory joinder principle in court actions ,

were, and still are, simple enough: from the viewpoint of the Court, to do a

complete job on the controversy in one sitting; from the view-point of those

already parties, to protect them against the consequences of subsequent

litigation reaching inconsistent results; from the viewpoint of those not made

parties but by the rule required to be brought in, to assure that their practical

out-of-court situation would not be adversely affected by changes in the status

quo wrought in consequence of the judgment.

21. 5.01(1) Persons may be joined as defendants because in a proceeding,

a plaintiff may join any claims he has against an opposite party whether or not

they are being made by him in the same or different capacities.


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22. Persons may be joined as defendants, although, it is not necessary that

every defendant be interested in all the relief claimed or in every claim included

in a proceeding.

23. Persons may be joined as defendants or where relief is claimed against

them (whether jointly, severally, or in the alternative) arising out of the same

transaction, occurrence, or series of transactions or occurrences,

24. Persons may be joined as defendants or where a common question of

law or fact may arise in the proceeding,

25. Persons may be joined as defendants or where there is doubt as to the

person or persons from whom the plaintiff or applicant is entitled to relief.

26. Persons may be joined as defendants or where damage or loss has

been caused to the same plaintiff by more than one person, whether or not there

is any factual connection between the several claims apart from the

involvement of the plaintiff, and there is doubt as to the person or persons from

whom he is entitled to relief or the respective amounts for which each may be

liable,

27. Persons may be joined as defendants where their presence in the

proceeding may promote the convenient administration of justice.

28. The court may, on such terms as may be just, extend or abridge the

time prescribed by an order or judgment or by Rules of Court on a motion for


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extension of time, that which, may be made either before or after the expiration

of the time prescribed.

29. The court may at any time dispense with compliance with any rule,

unless the rule expressly or impliedly provides otherwise.

30. 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.

31. Defendant will prove that the balance of convenience favors the

granting of the relief sought,

32. Plaintiff Andr Murray relies on the Limitation of Actions Act, SNB2009, c L-8.5, Section 5(2), Section 6, further, regarding Claims added toproceedings Section 21 (a) and Section 21(b).

33. The Plaintiff Andr Murray relies on Rules of Court governing Personswho may be joined as Defendants, Rules of Court 5.01 (1) and (2), RequiredJoinder of Necessary Parties; Rule 5.03 2 (a), (b), (c), (d), (e), MultipleDefendants or Respondents.

34. The Plaintiff Andr Murray relies on Rules of Court governingAmendment of Pleadings, Rule 27.10, 1 and 2 (a), (b) and or (c).

Limitation of Actions Act (S.N.B. 2009, c. L-8.5)


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35. Limitation of Actions Act (S.N.B. 2009, c. L-8.5), provides the

General limitation periods, pursuant to section 5(1) as follows:

5(1) Unless otherwise provided in this Act, no claim shall be broughtafter the earlier of

(a) two years from the day on which the claim is discovered, and

(b) fifteen years from the day on which the act or omission on which theclaim is based occurred.

36. May 7, 2008, I Plaintiff Andr Murray while travelling by bicycle

within THE CITY OF FREDERICTON members of FREDERICTON POLICE

FORCE intercepted me, then without warning physically attacked me, thereby

inflicting significant injuries upon me during a unprovoked arrest procedure.

37. 3:34 PM May 5, 2009, I Andr Murray did file a complaint with the

NEW BRUNSWICK POLICE COMMISSION against FREDERICTON

POLICE FORCE, regarding the May 7, 2008 incident,.

38. 4:13 PM May 5, 2009 I Andr Murray did receive an

acknowledgement of receipt of my e-mail correspondence from Jocelyn (Josh)

Ouellette Executive Director (as he then was) of The NEW BRUNSWICK

POLICE COMMISSION regarding my complaint against members of

FREDERICTON POLICE FORCE, a incident occurring May 7, 2008.

39. June 16, 2009 I Andr Murray did receive an e-mail correspondence

reply from S/Sgt. Daniel R. Copp of the Office of Professional Standards of

FREDERICTON POLICE FORCE, acknowledging receipt of my complaint.


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40. September 29, 2009, Chief of Police Barry MacKnight, did write a

letter, addressed to me Dated, September 29, 2009 thereby, notifying me Andr

Murray of his decision to summarily dismiss my complaint, re:

FREDERICTON POLICE FORCE File number, (FPF File 09- 10302)

regarding Plaintiff Andr Murrays complaint, against the FREDERICTON

POLICE FORCE, regarding the May 7, 2008 incident.

41. September 27, 2010, I Andr Murray, pursuant to Right to Information

and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 did apply for

correspondence and other documents, which may reveal other possible

motivations for the outrageously violent behavior directed at Andre Murray by

members of FREDERICTON POLICE FORCE which I verily believe included

the presence of Trina Rodgers, as a witness therefore, involved in the subject

incident of May 7, 2008.

42. November 5, 2010, I Andre Murray, received a letter from THE NEW

BRUNSWICK POLICE COMMISSION (Police Commission file number

2010-RTIPPA-02), which inter alia read After seeking third party intervention

from the Fredericton Police Force, we are partially granting access to the

requested records. The letter indicated that THE NEW BRUNSWICK

POLICE COMMISSION would be disclosing a portion of the records requested

and notably that FREDERICTON POLICE FORCE was involved in that

decision.

43. December 9, 2010, I Andr Murray did receive a reply correspondence

from New Brunswick Police Commission, stating inter alia that New

Brunswick Police Commission in spite of RTIPPA (Police Commission file


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number 2010-RTIPPA-02) New Brunswick Police Commission is declining

Andr Murray full access to documents specific to this subject matter, further,

in particular an Appendix C which consists of the investigation report

prepared by FREDERICTON POLICE FORCE and copy provided to New

Brunswick Police Commission.

44. On January 10, 2011, I Andre Murray did file with Court of Queenss

Bench Client Services FORM 1 REFERRAL, Dated January 10, 2011,

regarding full disclosure of information related to the May 7, 2008 incident.

45. January 13, 2011, New Brunswick Police Commission did partially

make available the above mentioned subject documents as requested by Andre

Murray pursuant to New Brunswick Police Commission File: 2110 C- 09- 09

further, New Brunswick Police Commission File: 2010 RTIPPA- 02.

46. The partial disclosure did reveal that FREDERICTON POLICE

FORCE were called by a person who gave a description of someone matching

the Plaintiffs description engaged in some illegal activity and that was the

actual reason why the Plaintiff was initially accosted May 7, 2008.

47. March, 4, 2011 I Andre Murray did file aNOTICE OF ACTION

WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March,

4, 2011 Court File Number: F/C/45/11 with the Court Client Services

Fredericton New Brunswick, this Action was specific to the March 5, 2009

incident. If one considers the March 5, 2009 incident independently, filing this

Action was within the general limitations period according Limitation of

Actions Act (S.N.B. 2009, c. L-8.5), section 5(1).


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48. After filing theMarch, 4, 2011 aNOTICE OF ACTION WITH

STATEMENT OF CLAIM ATTACHED (FORM 16A), I Andre Murray did

reasonably attempt to acquire, further information regarding both May 7, 2008

and March 5, 2009 incidents, in furtherance of this goal, I did endeavour to

have heard, two referrals to the Court of Queens Bench, the matter of a referral

was rescheduled several times, until finally heard August 11, 2011, regarding

both Court File Numbers. F/M/1/11 and F/M/22/11. The decision is still

pending.

49. I Andre Murray did draft an AmendedNOTICE OF ACTION WITH

STATEMENT OF CLAIM ATTACHED (FORM 16A), to include the May 7,

2008 incident and add as Defendants, parties who I believe are necessary to be

included, for a just determination of the issues. I used the opportunity to edit the

document, so as to be easily read and most accurately express the Plaintiffs

Claims. I was not ready to File the Amended Claim, when it became time to

serve the NOTICE OF ACTION WITH STATEMENT OF CLAIM

ATTACHED (FORM 16A), Dated March, 4, 2011.

50. 3:55 PM the 2nd day, of September, 2011, I Andr Murray, served,

Defendants THE CITY OF FREDERICTON and others, with a NOTICE OF

ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated

March, 4, 2011, Court File Number: F/C/45/11 by leaving a copy, with (THE

CITY OF FREDERICTON) Acting City Administrator, according to Rules of

Court, Rule 18.02(1)(b), which is within the time limitations for Service,

according to the Rules of Court, Rule 16.08 Time for Service. Through the rule

of agency (maxim qui facit per alium facit per se), Serving THE CITY OF


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FREDERICTON is considered service of all agents for THE CITY OF

FREDERICTON, namely all members of FREDERICTON POLICE FORCE.

51. I Andre Murray did complete editing anAMENDED NOTICE OF

ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A),

therefore, I did file same at the earliest opportunity.

52. September, 8, 2011, I Andre Murray did file (within 6 days of service

of original claim) aAMENDED NOTICE OF ACTION with STATEMENT

OF CLAIM ATTACHED (FORM 16A), Dated September, 8, 2011, Court File

Number: F/C/45/11 with the Court Client Services, Fredericton, New

Brunswick, this Amended Action was included the May 7, 2008 incident, and

added further Defendants, regarding the March 5, 2009 incident.

53. 2:09 PM the 9th day, of September, 2011, , I Andr Murray, served,

Defendants THE CITY OF FREDERICTON and others, a AMENDED

NOTICE OF ACTION with STATEMENT OF CLAIM ATTACHED (FORM

16A), Dated September, 8, 2011, Court File Number: F/C/45/11 by sending to

City Solicitor Michelle Brzak, for subject named Defendants THE CITY OF

FREDERICTON and others a facsimile of herewithin above described

documents, accompanied by a copy of a cover page marked by telephone

transmission to City Solicitors Fax 506-460-2128.

Limitation of Actions Act

Section 21


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54. The Plaintiff Andr Murray rely on the Limitation of Actions Act,

SNB 2009, c L-8.5, regarding Claims added to proceedings Section 21 (a) and

21(b), reproduced below:

PART 5CLAIMS BROUGHT AFTER EXPIRY OF LIMITATION PERIOD

Claims added to proceedings21 Despite the expiry of the relevant limitation period establishedby this Act, a claim may be added, through a new or an amendedpleading, to a proceeding previously commenced if the added claim isrelated to the conduct, transaction or events described in the originalpleadings and the conditions set out in one of the following paragraphs

are satisfied:

(a) the added claim is made by a party to the proceeding againstanother party to the proceeding and does not change the capacity inwhich either party sues or is sued;

(b) the added claim adds or substitutes a defendant or changes thecapacity in which a defendant is sued, but the defendant has received,before or within 6 months after the expiry of the limitation period,sufficient knowledge of the added claim that the defendant will not beprejudiced in defending against the added claim on the merits;

55. I Plaintiff Andre Murray, did add a claims regarding a May 7, 2008

incident, through an Amended pleading, specifically a AMENDED NOTICE

OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A),

Dated September, 8, 2011, Court File Number: F/C/45/11, to a proceeding

(Action) previously commenced by aNOTICE OF ACTION with

STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011

Court File Number: F/C/45/11, before the close of pleading as defined by Rules

of Court Rule 27.05. The added claim is related to the conduct, transaction or

events described in the original pleadings. The common event, or cause in both

events is that a unnamed person or persons did provide fraudulent


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representations to FREDERICTON POLICE FORCE, which resulted in

members of the FREDERICTON POLICE FORCE, arriving at Plaintiff Andre

Murrays location and subsequently Plaintiff Andre Murray was injured. Both

events were cause by the same set of circumstances and Plaintiff Andre Murray

believes that through discovery it will be revealed that both events were cause

by the same individuals, namely Defendant Neil Rodgers and or Defendant

Trina Rodgers.

56. The added claims are made by Plaintiff Andre Murray, a party to the

original proceeding against other parties to the original proceeding, namely

Defendant THE CITY OF FREDERICTON, Defendant FREDERICTON

POLICE FORCE and Defendant Chief of Police Barry MacKnight, further

these claims do not change the capacity in which any parties sues or is sued.

Defendant Constable Small had additional claims made against him because he

was present and participated at each incident, one being May 7, 2008 and the

second being March 5, 2009.

57. Further, the amended claim, adds Defendants, but the Defendant have

received, before or within 6 months after the expiry of the limitation period,

sufficient knowledge of the added claim that the Defendants will not be

prejudiced in defending against the added claim on the merits;


Section 5(2)

58. Further, Limitation of Actions Act (S.N.B. 2009, c. L-8.5), allows

exceptions to the General limitation periods, as provided by section 5(2) as

follows:


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5(2)A claim is discovered on the day on which the claimant first knewor ought reasonably to have known

(a) that the injury, loss or damage had occurred,

(b) that the injury, loss or damage was caused by or contributed to by anact or omission, and

(c) that the act or omission was that of the defendant.

59. Pursuant to section 5(2)(b) and (c) A claim is discovered on the day,

on which the claimant first knew or ought reasonably to have known that the

injury, loss or damage was caused by or contributed to by an act or omission,and that the act or omission was that of the defendants. January 13, 2011,

pursuant to a Right to Information and Protection of Privacy Act, request, NEW

BRUNSWICK POLICE COMMISSION did partially make available

documents as requested by Andre Murray (NEW BRUNSWICK POLICE

COMMISSION File: 2110 C- 09- 09 further, NEW BRUNSWICK POLICE

COMMISSION File: 2010 RTIPPA- 02). I Andre Murray, subsequently,

having reviewed subject NEW BRUNSWICK POLICE COMMISSION File:

(File: 2110 C- 09- 09 ) 2010 RTIPPA- 02, subject investigation report

summary and conclusion revealed the cause of Applicant Andre Murrays

battery and arrest resulted and caused by persons being obscured - the

following is an exact excerpt:

Investigative Summary blacked out, a blacked out has provided astatement that he observed a male closely matching the description of a suspectin some type of crime, as a result he contacted the police station, and Cst.

Debbie Stafford attended the area and attempted to stop and identify the

individual.

60. The partial disclosure did reveal that FREDERICTON POLICE

FORCE, was called by a person who gave a description of someone matching


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the Plaintiffs description, engaged in some undisclosed illegal activity which

was the actual reason why the Plaintiff was accosted May 7, 2008. Before this

subject RTIPPA disclosure, I Andre Murray was never informed of the reason,

members of FREDERICTON POLICE FORCE, had attended the Plaintiffs

location was because of the herewithin mentioned phone call. This revelation

connects the May 7, 2008 event to the March 5, 2008, because both, events

were caused by an unnamed caller, making fraudulent representation to the

FREDERICTON POLICE FORCE, which was the causative event. The above

mentioned Investigation summary was the evidence which caused Plaintiff

Andre Murray to first know that the injuries suffered at the hands of

FREDERICTON POLICE FORCE, were caused primarily by or contributed to

by an act of the unnamed callers, sending FREDERICTON POLICE FORCE to

the Plaintiffs location.

61. The two year time calculation regarding the Limitations of Actions

Act, did begin counting at that time of January 13, 2011, regarding, discovery

of the cause of the incident. Because both the March 5, 2009 and the May 7,

2008 incidents were caused by a unnamed caller, instructing FREDERICTON

POLICE FORCE to attend Plaintiff Andre Murrays location, the two incidents

are joined in cause. Based on this new time calculation Plaintiff Andre Murray

did have until January 12, 2013 to file an Action, in this case Plaintiff Andre

Murray chose to Amended existing Pleadings. Further, the Defendants were

provided sufficient knowledge of the added claims, that the Defendants will not

be prejudiced in defending against the added claim on the merits. The

Defendants were made aware that the Plaintiff was seeking remedy, and

pursuing these claims, by being contacted regarding investigations, into both

may, 7, 2008 and March 5, 2009 incidents, conducted because of the Plaintiffs


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filed complaints regarding Police Conduct, further, the Defendants were

contacted when the Plaintiff did make application for information pursuant to

RTIPPA, the Defendants were contacted and asked if they would consent to

disclosure of the information requested by the Plaintiff.

62. The additional claims, contained in the AMENDED NOTICE OF

ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated

September, 8, 2011, Court File Number: F/C/45/11 were served upon THE

CITY OF FREDERICTON and FREDERICTON POLICE FORCE within 7

days of service of the Original NOTICE OF ACTION WITH STATEMENT

OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011 Court File

Number: F/C/45/11 and most notably before the close of the pleadings. All the

other Defendants to the Action were served both original Action and the

Amended Action at the same time, all before the close of pleadings.

63. The Limitation of Actions Act, allows that if a Continuous act occurs,

such as in this case where a unnamed caller, (the Plaintiff alleges that this is

Defendant Neil Rodgers and or Defendant Trina Rodgers) is calling

FREDERICTON POLICE FORCE and providing fraudulent representation

regarding the Plaintiff, as a consequence, General limitation periods are

extended and for the purposes of calculating the limitation periods in section 5,

to be a separate act or omission on each day it continues, therefore the time

calculation, is counted from two years from the day of the new act occurs in the

Continuous act.


Section 6


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64. It is further, noteworthy to consider, Limitation of Actions Act (S.N.B.

2009, c. L-8.5), section 6, which allows that if a Continuous act occurs, this

allows a recalculation of time limitations, as follows:

Continuous act or omission6 If a claim is based on a continuous act or omission, the act or omissionis deemed for the purposes of calculating the limitation periods insection 5 to be a separate act or omission on each day it continues.

65. If Plaintiff Andr Murray was only relying on Section 6 of the

Limitations of Action Act, the time limits prescribed by the Limitations of

Action Act for the May 7, 2008 incident would have been extended to the same

time allowance as applied to the March 5, 2009 incident, because of the

continuous act, regarding the unnamed caller. The Plaintiff could have filed the

Action regarding the May 7, 2008 incident the same time, in which the original

March 4, 2011 claim was filed, then the Defendants would have been required

to be served by September, 4, 2011. September 4, 2011 is a Sunday, so service

would have been acceptable on the following day, September 5, 2011. The

Plaintiff did in fact serve the City of Fredericton with the Amended Claim on

the 9th day, of September, 2011. The difference in time would have only been 4

days. Defendants THE CITY OF FREDERICTON and FREDERICTON

POLICE FORCE, and through agency all other members of FREDERICTON

POLICE FORCE, would have to demonstrate with evidence that they were

somehow materially prejudiced in some meaning full way, further, that 4 days

made the difference, in limiting their ability to Defendant the Action of its

merits.

66. Regarding Defendant Neil Rodgers and Defendant Trina Rodgers, they

were both served on the 15th day, of September, 2011. The difference in days

between September 5, 2011 and September 5, 2011, would only have only been


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10 days. Defendant Neil Rodgers and Defendant Trina Rodgers, would have to

demonstrate with evidence that they were somehow materially prejudiced in

some meaning full way, further, that 10 days made the difference, in limiting

their ability to Defendant the Action of its merits.

67. The Plaintiff Andr Murray has fulfilled the requirements of Section

5(2), Section 6, Section 21 (a) and Section 21(b) of the Limitation of Actions

Act, SNB 2009, c L-8.5, therefore the general limitation period of the act is no

bar to the Plaintiffs claims being heard on their merits:

Rules of Court

JOINDER OF CLAIMS AND PARTIES

68. The Plaintiff Andr Murray relies on Rules of Court governing Personswho may be joined as Defendants, Rules of Court 5.01 (1) and (2), Rules ofCourt 5.02 (2), further, Rules of Court 5.03(2) (a), (b) (c) (d) and (e), thoseRules of Court are reproduced as follows:

JOINDER OF CLAIMS AND PARTIES

5.01 Joinder of Claims

(1) In a proceeding, a plaintiff or applicant may join any claims he has

against an opposite party whether or not they are being made by him inthe same or different capacities.(2) It is not necessary that every defendant or respondent be interestedin all the relief claimed or in every claim included in a proceeding.

5.02 Required Joinder of Necessary Parties

(2) Everyone whose presence is necessary to enable the court toadjudicate effectively and completely the matter before it, must bejoined as a party.

5.03 Permissive Joinder of Parties

Multiple Defendants or Respondents

(2) Persons may be joined as defendants or respondents where(a) relief is claimed against them (whether jointly, severally, or in thealternative) arising out of the same


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transaction, occurrence, or series of transactions or occurrences,(b) a common question of law or fact may arise in the

proceeding,(c) there is doubt as to the person or persons fromwhom the plaintiff or applicant is entitled to relief,(d) damage or loss has been caused to the same plaintiffor applicant by more than one person, whether ornot there is any factual connection between the severalclaims apart from the involvement of the plaintiff or applicant,and there is doubt as to the person or personsfrom whom he is entitled to relief or the respectiveamounts for which each may be liable, or(e) their presence in the proceeding may promote the

convenient administration of justice.

69. In accordance with Rules 5.01(1) and 5.01(2) Joinder of Claims, I

Andre Murray as Plaintiff may join any claims against an opposite party

whether or not they are being made by me in the same or different capacities, in

this case those claims are being made in the same capacity, further more, it is

not necessary that every Defendant be interested in all the relief claimed or in

every claim included in a proceeding. In this case there are two events are in

this action, which has six common Defendants, to both of the May 7, 2008 and

the March 5, 2009 events described in this Action.

70. In accordance with Rules 5.02 (2) Required Joinder of Necessary

Parties everyone whose presence is necessary to enable the Court to adjudicate

effectively and completely the matter before it, must be joined as a party.

Plaintiff Andre Murray does assert that the named Defendants are necessary to

enable the Court to adjudicate effectively and completely the matter before it.

71. In accordance with Rules 5.03 (2) Permissive Joinder of Parties

Persons may be joined as Defendants where relief is claimed against them


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arising out of the same transaction, occurrence, or series of transactions or

occurrences, such as in this case, regarding the May 7, 2008 incident and the

March 5, 2011 incident, both having a common cause. A common question of

law or fact may arise in the proceeding, such as in this case and further, there is

doubt as to the person or persons from whom the plaintiff is entitled to relief,

because of the complicated, vicarious liability issues, whereby it will be a

matter for the Court to decide full and partial liability, how should the damages

be apportioned. This Rule allows that when damage or loss has been caused to

the same Plaintiff by more than one person, whether or not there is any factual

connection between the several claims apart from the involvement of the

plaintiff and there is doubt as to the person or persons from whom he is entitled

to relief or the respective amounts for which each may be liable, Persons may

be joined as Defendants. Finally the presence of the named Defendants in the

proceeding may promote the convenient administration of justice.

72. In Occo Developments Ltd. v. McCauley, 1998 CanLII 9812 (NB QB)Judge H. H. McLellan Stated the following:

The courts tend to favour joinder of claims relating to the sametransaction. For example, in Pic Realty Canada Limited v. RoccaGroup Limited (1982), 41 N.B.R. (2d) 271 at page 278 and 279,Mr. Justice Stratton, as he then was, said:

[Page 3]

"As I read Rules 5 and 6, a plaintiff is not required to joinseveral claims in one action although if the relief claimedarises out of or relates to the same transaction oroccurrence, or if a common question of fact or law mayarise in the proceedings, consolidation or trial together willgenerally be ordered. Thus, in my opinion, joinder isoptional though highly desirable in the interest of theconvenient administration of justice and probably shouldbe ordered in all cases which meet the criteria unless it is


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established that the order will unduly complicate or delaythe trial or prejudice a party. In determining the latter issue,

the complication, delay or prejudice asserted by one partymust be balanced against the inconvenience, expense orembarrassment to which the other party will be put if theactions are not consolidated, tried together or tried oneafter the other. Moreover, it is to be noted that the grantingof an order for the trial together of two or more actions orfor the trial of one immediately after the other is not onlydiscretionary but the order itself is subject to the discretionof the judge who tries the case.

"In my view, the resolution of this application requires aproper balance to be struck between the need to avoid amultiplicity of proceedings and the requirement not tounduly delay the trial of the present action or to prejudice"the plaintiffs."

The court also try and avoid multiplicity of legal proceedings.The Judicature Act, R.S.N.B. 1973 c. J-2 s. 26(9) provides:

"26(9) The court in the exercise of the jurisdiction vested therein by thisAct in every cause or matter pending before the Court has power to

grant, and shall grant, either absolutely or on such reasonable terms andconditions as to

[Page 4]

the Court seems just, all such remedies whatsoever as any of the partiesthereto may appear to be entitled to in respect of any and every legal orequitable claim properly brought forward by them respectively in suchcause or matter, so that as far as possible all matters so in controversybetween the said parties respectively, may be completely and finallydetermined, and all multiplicity of legal proceedings concerning any of

such matters avoided."

In my opinion the balance of convenience favours permitting theaddition of Victor O'Connell as a Party Added by Counterclaim andallowing the defendants to amend their pleadings as requested.


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For these reasons, the motions are allowed. Costs will be inthe cause.

73. As stated in Occo Developments Ltd. v. McCauley, 1998,

consolidation or trial together will generally be ordered, joinder is optional

though highly desirable in the interest of the convenient administration of

justice and probably should be ordered in all cases which meet the criteria,

unless it is established that the Order will unduly complicate or delay the trial

or prejudice a party. In this case, the requested Order will not unduly

complicate or delay the trial or prejudice any party. The Defendants have not

claimed prejudice, in any meaningful way in this matter of joinder of parties,

the Defendants are simply trying to use a technicality, though erroneously

claimed, to shed themselves of participation in this action, further, the Plaintiff

will experience inconvenience, and expense if the actions are not consolidated,

of having to file separate Actions against the same parties, and Served them

essentially the same paperwork all over again.

74. In Repap New Brunswick Inc v Pictou, 1996 CanLII 4890 (NB QB)

Justice Thomas W. Riordon, does state the position that there would be very

little difference in the commencement of new proceedings or in adding these

parties to that proceedings, therefore he does grant joinder of certain parties at

beginning at page 2 through to page 5 as follows:

The Plaintiff points out that a separate action could becommenced against this group and against any of the namedpersons and of course that is the case. Legal action may be

[Page 3]

instituted by any person against another party and of course thatdoesn't mean that it's going to be a successful action or that the


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Plaintiff may succeed in its claim. Any party who has an actioncommenced against it of course may apply to the Court in due

course that the action and claim be dismissed in that it is eitherfrivolous or without merit. There are provisions in the Rules ofCourt to make such an application.

I do not believe that the addition of these parties willcomplicate or delay the trial of these matters, nor am I satisfiedthat it would cause any prejudice to the named individualsespecially when one considers the fact that the Plaintiff has everyright to commence an action if it chooses to do so and I see verylittle difference in the commencement of new proceedings or inadding these parties to the present proceedings. The sameissues are to be addressed. The request to add the respondingparties, Charles Murray Nicholas, Friends of ChristmasMountains, Peggy Frith, Amelia Clark, Matthew Jonah, MarkPurdon, Leslie Homnett, Marnay Issac, Jennifer Waldschutz andthe Conservation Council of New Brunswick is granted and thesepersons will become Party Defendants to the presentproceedings.

In the event that the Plaintiff does not establish its claimagainst any of the Defendants, it of course runs the

[Page 4]

risk of paying the costs of the parties involved in accordance withthe discretion of the Court. If the action is without merit, the Courtcan consider any request for dismissal and costs of any partywho is in such a position can be considered.

27.10 Amendment of Pleadings

75. The Plaintiff Andr Murray relies on Rules of Court governingAmendment of Pleadings, Rule 27.10, 1 and 2 (a), (b) and or (c).

27.10 Amendment of PleadingsGeneral Power of Court

(1) Unless prejudice will result which cannot be compensated for bycosts or an adjournment, the court may, at any stage of an action, grant


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leave to amend any pleading on such terms as may be just and all suchamendments shall be made which are necessary for the purpose of

determining the real questions in issue.

When Amendments May Be Made

(2) A party may amend his pleading(a) without leave, before the close of pleadings, if the amendment doesnot include or necessitate the addition, deletion or substitution of a partyto the action,(b) on filing the consent of all parties and, where a person is to be addedor substituted as a party, the persons consent, or(c) with leave of the court.

76. Pursuant to Rules of Court Rules 27.10(1), this Court may grant leaveto amend the Plaintiffs Notice of Action, on such terms as may be just and all

such amendments shall be made which are necessary for the purpose of

determining the real questions in issue. Such amendments may be made at any

stage of an Action, and specifically in this case, we are in the very beginning of

the Action, remember, the Amended Notice of Action was filed only 6 days

after the Defendants were served the Original Action. To overcome this

permissive Rule, the Defendants would have to provide evidence that prejudice

will result which cannot be compensated for by costs or an adjournment. In this

case they have not. I will remind the Court that the Defendants filed no

affidavit material whatsoever regarding this Motion.

77. When is the close of pleadings? Rules of Court, Rules 27.05, regarding

the close of pleadings is provided below:

27.05 Close of PleadingsPleadings are deemed to be closed(a) upon the noting of the defendant in default,(b) upon the service of the Reply, or(c) when the time for service of the reply has expired.


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Rule 27.04(3)(3) A Reply shall be filed and served within 10 days after service of the

Statement of Defence

78. Plaintiff Andre Murray, did file the Amended Notice of Action Dated

September 8, 2011, before the close of pleadings, and served same upon THE

CITY OF FREDERICTON the next day (September 9, 2011). Calculating, the

close of pleading would provide the Defendant (considering, Notice of Intent to

Defend 10 days, Statement of Defense 20 days, time for filing the reply 10

days), with 40 days, before the close of pleadings. Plaintiff Andre Murray did

serve THE CITY OF FREDERICTON, technically 33 days before the close ofpleadings. All other Defendants were served the Amended Notice of Action the

same time as the Original Notice of action.

79. Pursuant to Rules of Court, Rules 27.10(2)(a) Plaintiff Andre Murray

may amend his pleading without leave, before the close of pleadings, if the

amendment does not include or necessitate the addition, deletion or substitution

of a party to the action. This would mean that those Amendments which the

Plaintiff has made which did not involve adding parties would be allowed

according to the Rules, further do not require leave of the Court.

80. In this matter before the Court, Plaintiff Andre Murray requires leave

only for those portions of the Amended Notice of Action, which include and

necessitates the addition, of parties to the action.

81. Pursuant to Rules of Court Rules 27.10(2)(b) Plaintiff Andre Murray

may amend his Notice of Action on filing the consent of all parties and, where a

person is to be added or substituted as a party, the persons consent. Plaintiff


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Andre Murray did request of all Defendants their consent to be added as parties.

THE CITY OF FREDERICTON did provide this written consent, and through

the rule of agency all members of FREDERICTON POLICE FORCE are

deemed to have consented as well. Since Rules 27.10(2)(b) requires the consent

of all parties, and as a consequence of Defendant Neil Rodgers and Defendant

Trina Rodgers refusing to provide this consent, the threshold is not met.

82. Pursuant to Rules of Court Rules 27.10(2)(c) Plaintiff Andre Murray

may amend his Notice of Action with Statement of Claim Attached with leave

of this Court. This Motion provides the Honorable Court such an opportunity.

83. In Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB

CA) Justice WALLACE S. TURNBULL, J.A. did state the Rules of Court are

the vehicle that enables rights to be delivered and claims to be enforced, the

Court should interpret and apply the rules to ensure, to the greatest extent

possible, that there is a determination of the substantive law, from page 6 to

page 8 as follows:

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

[Page 7]

deciding whether to permit an amendment to the pleadings. Thatis, would the granting of the amendment result in prejudice whichcannot be compensated for by costs or an adjournment? If nosuch prejudice would result, then the Court may grant the motion,

and if so, on such terms "which are necessary for the purpose ofdetermining the real questions in issue". Rule 2.02 further directs:

... all necessary amendments shall be permitted ... at anystage in the proceeding, upon proper terms, to secure the


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just determination of the matters in dispute between theparties.

These are rules of procedure as opposed to thesubstantive law which defines substantial legal rights and claims.The rules are the vehicle that enables rights to be delivered andclaims to be enforced. As such, a Court should interpret andapply the rules to ensure, to the greatest extent possible, thatthere is a determination of the substantive law unless theapplication of the rules would result in a serious prejudice orinjustice. Accordingly, amendments to pleadings are generallyallowed. That is the reason for the use of such phrases as"determining the real questions in dispute" in Rule 27.10 and "justdetermination of the matters in dispute" in Rule 2.02. As ageneral principle, therefore, the rules of procedure should not beused to prevent the delivery of rights; nor should they be used topreclude the enforcement of claims which are derived from thesubstantive law.

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

[Page 8]

In reviewing a trial judge's refusal to permit an amendmentto pleadings, Stratton, J.A., as he then was, in Moore, approvedan appeal court's review of the following questions to determine ifan injustice resulted from the trial judge's decision. Did theproposed amendment raise a new issue or was it a "proper andpermissable" extension of a claim by the party seeking theamendment? Could it be fairly argued that if the requestedamendment were allowed it would (to which I would add, or itshould) have taken the other party by surprise? Did theamendment deprive the other party of "any defence [or claim]

which would have otherwise been available to it," or result inprejudice, "which cannot be compensated for by costs or anadjournment"?


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84. Plaintiff Andre Murray does ask this Court, as similarly asked in

Juniberry Corp. v. Triathlon Leasing Inc., 1995, above, did the amendment

deprive the Defendants 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"? The answer to that is simple, No. Please note the

Defendants did not file and any affidavit material is reply to this motion,

therefore they have not presented this Court with evidence for consideration.

Accordingly, amendments to pleadings are generally allowed and in this case

they should be alowed. 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.

85. In Michaud v. Robertson, 1992 CanLII 4709 (NB CA) Stratton,

CHIEF JUSTICE OF NEW BRUNSWICK, did provide his view of the

interpretation to be given to Rules 1.03(2), 2.02 and 27.10 of the Rules of

Court, form page 1 through to page 4 as follows:

I have had the opportunity of reading in draft the reasons fordecision of my colleague, Mr. Justice Hoyt. While I agree with himthat Mr. Michaud's Statement of Claim does not properly set out acause of action against Evancic Perrault Robertson, ("E.P.R."), itis my opinion this is a case in which Mr. Michaud should havebeen given leave to amend his Statement of Claim.

At issue here is the interpretation to be given to Rules1.03(2), 2.02 and 27.10 of the Rules of Court. The relevantportions of these Rules provide that:

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

2.02 A procedural error, including failure to comply withthese rules . . . shall be treated as an irregularity and shall


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not render the proceedings a nullity, and all necessaryamendments shall be permitted

. . . at any stage in the proceeding, upon proper terms, tosecure the just determination of the matters in disputebetween the parties.

27.10(1) Unless prejudice will result which cannot becompensated for by costs or an adjournment, the court may,at any stage of an action, grant leave to amend anypleading on such terms as may be just and all suchamendments shall be made which are necessary for thepurpose of determining the real questions in issue.

As I read the quoted Rules, they are drafted in very broadterms. They give a judge wide powers to grant leave to amendpleadings. They also emphasize the importance of construing theRules to secure the just determination of the

[Page 2]

real matters in dispute between the parties in the least expensiveand most expeditious manner. Moreover, Rule 27.10(1) is veryspecific. It in effect directs that leave to amend should be grantedwhere an amendment is required to determine the real questionsin issue between the parties except where to do so would result

in prejudice to another party which cannot be compensated for bycosts or an adjournment or the imposition of terms.

The question of amendments to pleadings was consideredby this Court in Pic Realty Canada Limited v. Disher (1982), 42N.B.R. (2d) 41. In that case it was pointed out that thediscretionary power to grant amendments was to be exercised soas to do what justice may require in the particular case. It wasalso noted, however, that appellate courts will not ordinarilyinterfere with a trial judge's exercise of discretion except on apoint of law or unless it can be shown on other grounds that an

injustice will result.

It now seems well established that in matters in which a judge has a discretion, and has exercised it, a Court of Appealwill not interfere except upon very substantial grounds. Where,


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however, the discretion has been exercised on a wrong principle,an appellate tribunal may reverse it on that ground. Rule 2.02

which provides that a procedural error, including the failure tocomply with the Rules of Court, shall be treated as anirregularity and all necessary amendments shall be made, uponproper terms, to secure the just determination of the real mattersin dispute between the parties, is the rule which governs theexercise of judicial discretion in cases such as this present one.

In the circumstances of this case, it is my opinion that the refusalby the Judge of first instance to grant Mr. Michaud leave toamend his Statement of Claim was contrary to the stated purposeand intent of the Rules of Court which authorize a judge topermit all amendments necessary "to secure the justdetermination of the matters in dispute between the parties". Noram I persuaded that the granting of leave to amend will result inany injustice to the defendant E.P.R. Rather, it is my respectfulview that the refusal by the Judge to grant leave to amendresulted from the application of a wrong principle of law. It did notaccomplish what justice required in the circumstances. Indeed, inmy opinion, the refusal to grant leave to amend could only resultin delaying the proceedings, the incurring of the additional costsinvolved in the institution of a new action against E.P.R. andobtaining an order for consolidation. In short, in my opinion, therefusal to grant leave to amend did not result in securing the just,

[Page 4]

least expensive and most expeditious determination of theproceedings on the merits as envisioned by Rule 1.03(2).

86. A refusal by this Court to grant Plaintiff Andre Murray leave to amend

his STATEMENT OF CLAIM, will be contrary to the stated purpose and intentof the Rules of Court which authorize a judge to permit all amendments

necessary "to secure the just determination of the matters in dispute between the

parties".


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87. Judicature Act, RSNB 1973, c J-2, section 26 (9) provides as follows:

26(9) that as far as possible all matters so in controversy between thesaid parties respectively, may be completely and finally determined, andall multiplicity of legal proceedings concerning any of such mattersavoided."

88. Granting of leave to amend will not result in any injustice to the

Defendants, further, refusal by this Court to grant leave to amend will only

result from the application of a wrong principle of law, and will not accomplish

what justice required in these circumstances. Refusal to grant leave to amend,

would only result in delaying the proceedings, the incurring of the additional

costs involved in the institution of a new Action against the subject Defendants,

multiplicity of legal proceedings and likely require a new Order at some future

date for Joinder of Claims and Parties. The refusal to grant leave to amend

would not result in securing the just, least expensive and most expeditious

determination of the proceedings on the merits as envisioned by Rule 1.03(2).

[33] It is now well-settled that statutory interpretation cannot befounded on the wording of the legislation alone and that the words ofan Act are to be read in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object ofthe Act, and the intention of Parliament (see Rizzo & Rizzo Shoes Ltd.(Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2(QL), at para 21). Rule 1.03(1) prescribes that, unless a contraryintention appears, the Interpretation Act, R.S.N.B. 1973, c. I-13 appliesto the Rules of Court. Section 17 of the Interpretation Actprovides asfollows:

17 Every Act and regulation and everyprovision thereof shall be deemed remedial,


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and shall receive such fair, large and liberalconstruction and interpretation as best

ensures the attainment of the object of theAct, regulation or provision.

89. As stated by Chief Justice Drapeau above the words of an Act are to

be read in their entire context and in their grammatical and ordinary sense

harmoniously with the scheme of the Act, the object of the Act, and the

intention of Parliament Rule 1.03(1) prescribes that, unless a contrary

intention appears, Section 17 the Interpretation Act, applies to the Rules of

Court, therefore Rule 27.10 shall be deemed remedial, and shall receive such

fair, large and liberal construction and interpretation as best ensures the

attainment of the object of the Rule, such as granting the Plaintiffs request, for

the Court to grant leave to Amendment of Pleadings.

Extend Rule 16.08 (1)

90. Plaintiff Andre Murray does request of this Court to extend Rule 16.08

(1) the time required for service of the Original NOTICE OF ACTION and

STATEMENT OF CLAIM ATTACHED (FORM 16A) Dated March 04, 2011

and AMENDED NOTICE OF ACTION WITH STATEMENT OF CLAIM

ATTACHED (FORM 16A) Court File Date stamped September 8, 2011

pursuant to Rule 2.02, and 3.02 of the Rules of Court;

91. Rules of Court Rule 16.08, 2.02 and 3.02 are reproduced below:

16.08 Time for Service

(1) Where an action is commenced by issuing a Notice

of Action with Statement of Claim Attached, it shallbe served within 6 months thereafter.

2.02 Effect of Non-Compliance

A procedural error, including failure to comply with


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these rules or with the procedure prescribed by an Act forthe conduct of a proceeding, shall be treated as an irregularity

and shall not render the proceeding a nullity, and allnecessary amendments shall be permitted or other reliefgranted at any stage in the proceeding, upon proper terms,to secure the just determination of the matters in disputebetween the parties. In particular, the court shall not setaside any proceeding because it ought to have been commencedby 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 eitherbefore or after the expiration of the time prescribed.

92. Plaintiff Andre Murray does request of the Court, that the time for

service of the Amended Notice of Action, Rules of Court Rule 16.08 Time for

Service be extended, so as to encompass the time that was required to serve all

the Parties individually. This Court clearly has the tools to provide the relief

sought through Rule 3.02, the Court may, extend the time prescribed by these

rules.

93. In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A.

LaVIGNE, did state regarding the obligation of the Court, which is to see that

justice is done, the Court may 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, from paragraph 21 through to and including paragraph 27

as follows.

21. The test to be applied when considering such an application isthat of the substantial injustice test which was put forth by Mr. Justice


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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 ofHill v.

Mattatall, [1996] N.B.J. No. 193.

22. InHill, supra, Chief Justice Hoyt as he then was, writing for themajority 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 favourof 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. Hesaid 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


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relevant to Rule 3.02 applications.

Culliton, C.J. said at p. 333:

In an application to renew a writ of summonsthe 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 theonly 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 bedetermined 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 seeno difference between "severe

prejudice" and "substantial

injustice". More recently, McLellan,

J. in Gifford v. Phalen Estate,


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[1995] N.B.J. No. 586 (QL), using the

"substantial injustice" test, allowed

an application to extend the time toserve 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 "substantialinjustice" test articulated in Bridges was correct. Nor amI able to conclude that he was wrong in determining thatthe appellants would suffer no substantial injustice. Thelength of delay, of course, is a factor to consider, but not

the only factor. Undoubtedly, the longer the delay, themore prominent it becomes in assessing the variousfactors that could cause a substantial injustice. Asolicitor's delay, unless the delay has an oblique motive,for example, to gain some tactical advantage, is a neutralfactor in assessing the injustice each party would suffer.

23. A motion for leave to appealHillwas dismissed by the SupremeCourt 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 puton notice as early as December 11, 2000. They were aware that thePlaintiff had retained legal counsel to pursue the claim. They did makean investigation and an informed decision was made to close their fileon April 10, 2001 after denial of liability. The two-year limitationperiod had not even expired by then. There is no onus on a plaintiff todo anything before the two years are up and he has a further 6 months toserve the documents.

25. This is not a case where the Defendants insurance companieswere unable to obtain evidence or prevented from making an

investigation in a timely manner. They were put on notice early on andthey did have a chance to make an investigation.

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


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27. The delay in this case is quite short when compared to some ofthe delays in the cases mentioned in the Hill, supra,and Savoie, infra,

decisions. The Plaintiff had until to August 1

st

, 2002 to serve thedocuments. The motion for an extension of time was filed in October2003, that is fifteen months later.

94. It would be a substantial injustice to the Plaintiff to not have the merits

of the claim heard because a minor technicality, of a few days difference in

serving times. The delay in this subject case before the Court is quite short

when compared to some of the delays in the cases above mentioned. There

would be no injustice to have the claims against the Defendants heard on its

merits, furthermore, there is the obligation of the Court, which is to see that

justice is done, the Court may 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.

Equity

95. Judicature Act, RSNB 1973, c J-2 section 26(6) and 26, regards equity

as follows:

26(6) The Court and every judge thereof shall recognize and take noticeof all equitable estates, titles and rights, and all equitable duties andliabilities appearing incidentally in the course of any cause or matter, inthe same manner in which the Supreme Court in Equity would haverecognized and taken notice of the same in any suit or proceeding dulyinstituted therein before the commencement of The Judicature Act,1909.

26(8) Subject to the aforesaid provisions for giving effect to equitablerights and other matters of equity in manner aforesaid, and to the otherexpress provisions of this Act, the Court and every judge thereof shall

recognize and give effect to all legal claims and demands, and allestates, titles, rights, duties, obligations and liabilities existing by thecommon law or created by any statute, in the same manner as the samewould have been recognized and given effect to by the Supreme Court,


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either at law or in equity, if The Judicature Act, 1909 had not beenenacted.

96. The Court may at any time dispense with compliance with any rule,

unless the rule expressly or impliedly provides otherwise.

97. 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.

98. The Court may at any time dispense with compliance with any rule,

unless the rule expressly or impliedly provides otherwise when the balance of

convenience favors the granting of the relief sought.

2

99. Pursuant to Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court

the Court, may, extend time required for filing and service of a Court

document;

100. Maxim - Neminem laedit qui jure suo utitur. A person who exercises

his own rights injures no one.


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101. Maxim -Bonum judex secundum aequum et bonum judicat, et

aequitatem stricto juri praefert. A good judge decides according to justice and

right, and prefers equity to strict law. Co. Litt. 24.

102. Maxim -In all affairs, and principally in those which concern the

administration of justice, the rules of equity ought to be followed.

103. The legal website duhaime.org provides the following insight into the

principles of equity: at

(http://www.duhaime.org/LegalDictionary/E/Equity.aspx)

Equity Definition:

A branch of English law which developed hundreds of years ago whenlitigants would go to the King and complain of harsh or inflexible rulesof common law which prevented "justice" from prevailing.

In the 1870s, England and its colonies merged the courts but not thedoctrines (in statutes called "judicature"). Although under the umbrellaof a unified judiciary, where the principles conflicted, equity was statedto have precedence over the common law.

Ontario's initiative is a good sample, now known as the Courts of JusticeAct (1990 RSO Chapter C-43; v. 2007), where at 96:

It gives equity rank over the common law ("where a rule ofequity conflicts with a rule of the common law, the rule of equityprevails");

Merges the Courts by requiring that there shall no longer be aseparate court for equity ("Courts shall administer concurrentlyall rules of equity and the common law"); and

Only federally-appointed judge, also known as "superior-levelcourts", may consider equity claims or grant equity relief ("onlythe Court of Appeal and the Superior Court of Justice, exclusive


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of the Small Claims Court, may grant equitable relief, unlessotherwise provided").

A whole set of equity law principles were developed based on thepredominantfairness, reason and good faith characteristics of equity asreflected in some of its maxims: equity will not suffer a wrong to bewithout a remedy or he who comes to equity must come with cleanhands.

104. The New Brunswick Judicature Act, RSNB 1973, c J-2, also provides

for equity law principles based on the predominant principles offairness,

reason and good faith which are characteristics of equity, in the following

section 26(8), 32 and 39 (emphasis added):

26(8) Subject to the aforesaid provisions for giving effect toequitable rights and other matters of equity in manner aforesaid,and to the other express provisions of this Act, the Court andevery judge thereof shall recognize and give effect to all legalclaims and demands, and all estates, titles, rights, duties,obligations and liabilities existing by the common law or createdby any statute, in the same manner as the same would havebeen recognized and given effect to by the Supreme Court,

either at law or in equity, if The Judicature Act, 1909 had notbeen enacted.

32 Stipulations in contracts as to time or otherwise, which wouldnot before the commencement of The Judicature Act, 1909 havebeen deemed in a Court of Equity to be or to have become of

the essence of such contracts, shall receive in the Court the

same construction and effect as they would heretofore have

received in Equity.

39 Generally, in all matters not hereinbefore particularlymentioned, in which there is any conflict or variance betweenthe rules of equity and the rules of the common law withreference to the same matter, the rules of equity shall prevail.


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105. Rule 1.03(2) of theRules of Court direct the Court that these rules

shall be liberally construed to secure the just, least expensive and most

expeditious determination of every proceeding on its merits (to safe guard

against harsh or inflexible interpretation of the rules of Court or Common

Law which may prevent "justice" from prevailing).

106. Rule 2.01 of theRules of Court provides the Court with the express

tool to dispense with compliance with any rule (the rules of equity shall

prevail).

107. Rule 2.02 of theRules of Court compels Courts to overlook

procedural errors and to take appropriate measures to secure the just

determination of the matters in dispute between the parties (fairness, reason

and good faith)

108. Rule 2.04 of theRules of Court direct the Court, that in any matter of

procedure not provided for by the Rules of Court or by an Act, the court may,

on motion, give directions.(to safe guard against harsh or inflexible

interpretation of the rules of Court or Common Law which may prevent

"justice" from prevailing).

109. Rule 3.01 of theRules of Court direct the Court on such terms as may

be just, to extend the time prescribed by an order or judgment or by the Rules of

Court.(to safe guard against harsh or inflexible interpretation of the rules

of Court or Common Law which may prevent "justice" from prevailing).


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110. As a self Represented individual, one may makes mistakes and file and

or serve documents to late, but the Rules of Court and equity which is in

essence the fairness that should be present in all Courts, when the parties do

want to pursue remedy.

3.

111. Associated Maxims are as follows:

I. Lex aequitate gaudet; appetit perfectum; est norma recti. The law delights

in equity; it grasps at perfeccion; it is a rule of right.

II.Equitas sequitur legem. Equity follows the law.

III.Lex respicit aequiiatem. The law regards equity.

IV.Ratio in jure aequitas inteera. Reason in law is impartial equity.

V.Nulli vendemus, nulli negabimus, aut differemus rectum vel justitian. We

will sell to none, we will deny to none, we will delay to none, eiiher equity

or justice.

VI.Judex ante oculos aequitatem semmer habere debet. A judge ought always

to have equity beeore his eyes.

4.

Rule 1.03, 2.01. 2.02, 2.04 and 3.02

112. Maxim -Justitia nemine neganda est. Justice is not to be denied.


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113. Maxim -Lex non deficit in justitia exibenda. The law does not fail in

showing justice.

114. The Rules of Court are that which enables rights to be delivered and

claims to be enforced. As such, a Court should interpret and apply the Rules of

court to ensure, to the greatest extent possible, that there is a determination of

the substantive matters in dispute between the Parties, unless the application of

the Rules of Court would result in a serious prejudice or injustice.

115. Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court are

reproduced as follows:

1.03 Interpretation

(1) Except where a contrary intention appears, theInterpretationActand the interpretation section of theJudicatureActapply to these rules.(2) These rules shall be liberally construed to securethe just, least expensive and most expeditious determinationof every proceeding on its merits.(3) The arrangement of these rules and their title

headings are primarily intended for convenience, but maybe used to assist in their interpretation.

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 withthe 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 reliefgranted at any stage in the proceeding, upon proper terms, to secure thejust determination of the matters in dispute between the parties. Inparticular, the court shall not set aside any proceeding because it ought


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to have been commenced by an originating process other than the oneemployed.

2.04 Where No Procedure Provided

In any matter of procedure not provided for by these rules or by an Actthe court may, on motion, give directions.

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 timeprescribed by an order or judgment or by these rules.(2) A motion for extension of time may be made eitherbefore or after the expiration of the time prescribed.

(3) Where the time prescribed by these rules relatesto an appeal, only a judge of the Court of Appeal maymake an order under paragraph (1).(4) Any time prescribed by these rules for serving,filing or delivering a document may be extended orabridged by consent.

116. Regarding Rules Rule 2.02, 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 beginning at page 7 through to

page 8 as follows:

Rule 2.02 further directs:

... all necessary amendments shall be permitted ... at anystage in the proceeding, upon proper terms, to secure the

just determination of the matters in dispute between theparties.

These are rules of procedure as opposed to thesubstantive law which defines substantial legal rights and claims.

The rules are the vehicle that enables rights to be delivered andclaims to be enforced. As such, a Court should interpret andapply the rules to ensure, to the greatest extent possible, thatthere is a determination of the substantive law unless theapplication of the rules would result in a serious prejudice or


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injustice. Accordingly, amendments to pleadings are generallyallowed. That is the reason for the use of such phrases as

"determining the real questions in dispute" in Rule 27.10 and "justdetermination of the matters in dispute" in Rule 2.02. As ageneral principle, therefore, the rules of procedure should not beused to prevent the delivery of rights; nor should they be used topreclude the enforcement of claims which are derived from thesubstantive law.

117. 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. May it please the Honorable Court the found at

paragraph 91 as follows:

[91] Rule 2.02 of theRules of Court enjoins courts to overlookprocedural errors and to take appropriate measures to secure the justdetermination of the matters in dispute between the parties.

118. The word enjoins was of particular note to the Applicant, the

definition is provided below from Black's Law Dictionary (8th ed. 2004) , Page

1608 describes ENJOIN as follows:

enjoin, vb. - 2. To prescribe, mandate, or strongly encourage

119. 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) REFERENCE: (please see paragraph 11 to 19 that Honorable Court must

consider what is necessary to see that justice is done? as follows:

[15] In particular, he relied on the case of Simpson v.Saskatchewan Government Insurance Office, 65 D.L.R.(2d) 328, andcited the following passage from page 333 of the decision:


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6 "In an application to renew a writ of summons the basicquestion which faces the court is, what is necessary to see that

justice is done? That question must be answered after a carefulstudy and review of all the circumstances. If the refusal to renewthe writ would do an obvious and substantial injustice to theplaintiff, while to permit it is not going to work any substantialinjustice to the defendant or prejudice the defendant's defence,then the writ should be renewed. This should be done even if theonly reason for non-service is the negligence, inattention orinaction of the plaintiff's solicitors and notwithstanding that alimitation defence may have accrued if a new writ was to beissued. If the non-service of the writ was due to the personalactions of the plaintiff, that, of course, would be a fact to be

considered by the court. Each case should be considered in thelight of its own peculiar circumstances and the court, in theexercise of its judicial discretion, should be determined to seethat justice is done."

7The rule which emerges from these cases unequivocallyrecognizes that the court's main concern must be to see thatjustice is done and to make certain that the extension of time forservice does not prejudice or work any injustice to either of theparties...

[19] I am satisfied that the delay in service was caused by thelawyer which in the circumstances should be treated as a neutral event.I am also satisfied that the Defendants insurer has not and will notsuffer any prejudice if the Plaintiffs motion is granted. However,prejudice will occur to the Plaintiff if the time period for service is notextended. Therefore justice will be done if the time period for service isextended.

120. In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A.

LaVIGNE stated the following regarding granting an extension of

time.; REFERENCE: (Please see at paragraph 16 19),:

16. Rule 3.02 states:


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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 judgmentor 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 Rulesmust be treated as an "irregularity", which can be remedied to securethe just determination of the matters in dispute.

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

19. The main concern in cases such as this is to see that justice isdone and to make certain that any extension of time for service does notprejudice or work injustice to the parties involved.

121. In K.C. v. New Brunswick (Health and Community Services), 1998

CanLII 17954 (NB CA) ( http://canlii.ca/t/25rlz) Chief Justice J. ERNEST

DRAPEAU, J.A., stated the following regarding Rule 3.02(1) as follows:

[Page 3]Rule 3.02 (1) permits the court to extend the time prescribed byan order, judgment or the rules. Thus, where the statute does notfix a deadline the court may extend the time under theauthority of Rule 3.02(1).

122. In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The Honorable

Chief Justice J. Ernest Drapeau regarding whether the appellant had unduly

delayed preparation and perfection of his appeal, REFERENCE: (staring at

page 1 through to and including page 3) stated as follows:


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This is a motion by the respondents, other than Par SyndicationGroup 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 hasunduly delayed preparation and perfection of his appeal.

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

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

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

Disposition

The motion for an order under Rule 62.23(1)(c) is dismissed. Theappellant is directed to perfect his appeal on or before December 19,2003, failing which it will stand dismissed. The unique circumstances ofthe present case warrant an order of costs against the moving parties infavour 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.

123. Plaintiff Andre Murray does request that this Court provide the

equitable remedy of granting the relief sought by the Plaintiff.

Cost Orders in favor of se

Plaintiffs Brief - Plaintiffs Motion Joinder of Parties and Claims

Documents

Transcript of Plaintiffs Brief - Plaintiffs Motion Joinder of Parties and Claims