February 14, 2011, Submission 2 for Second Court Hearing FC.104.09

7/29/2019 February 14, 2011, Submission 2 for Second Court Hearing 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 Submission 2Filed 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 Rose

Danielski

E. Thomas Christie, QC

CHRISTIE LAW OFFICE

Suite 306,

212 Queen Street

Fredericton,New Brunswick

Canada

E3B 1A8

Tel: (506) 472 2090Fax: (506) 472 2091

E-Mail:

[email protected]

Betty Rose Danielski

The Defendant

Apt 603166 Carlton StreetToronto, Ont.

M5A 2K5


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PART 1 INDEX

The Plaintiffs Submission 2

PAGEA. PART I INDEX _____________________________________________iiB. PART II STATEMENT OF FACTS ____________________________ 0C. PART III - ISSUES _____________________________________________ 8

1. Questions for the Court to answer ________________________________82. Introduction _________________________________________________93. A. Should the Court grant a Continuance of the Mechanics Lien Claim?__114. Granting the continuance _______________________________________115. Rule 1.03 Interpretation ________________________________________146. Rule 2.01 and 2.02 ____________________________________________397. B. Should the Defendant pay costs of the within Motion?______________698. The Defendants conduct ______________________________________ 719. Defendants questionable conduct history: _________________________ 8310.Cost Orders in favor of self-represented litigants____________________100

D. PART VI ORDERS SOUGHT __________________________________112E. SCHEDULE A LIST OF AUTHORITIES _____________________112F. SCHEDULE B TEXT OF RELEVANT PROVISIONS OF

STATUTES OR REGULATIONS _______________________________118

G. SCHEDULE C LISTED AUTHORITIES FULL DISCISION CITED ______________________________________ 123

1. Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) ______________1272. Novotny v. Canada (Minister of Citizenship and Immigration), 2000

CanLII 14762 (F.C.) ____________________________________________146

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


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

5. Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB C.A.)__1696. LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) ___________________1827. East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003

NBQB 268 (CanLII) __________________________________________195

8. Agnew v. Knowlton, 2003 NBQB 454 (CanLII)_____________________2069. Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.)____________________22010.Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII) _______23511.Blanger v. Roussel, 2006 NBCA 2 (CanLII) _______________________25412.Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.)_______26013.Michaud v. Robertson, 2003 NBCA 79 (CanLII)_____________________26314.Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) _______________269


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BPART II STATEMENT OF FACTS

1. Plaintiff Andr Murray did file on April 16, 2009 at 15:08 a FORM 2

CLAIM FOR LIEN, Dated April 16, 2009 at the York County Registry

Office, New Brunswick. The Deputy Registrar Evelyn Keddy certified the

registration of the CLAIM FOR LIEN document and assigned file number

27035311. The here within above mentioned FORM 2 CLAIM FOR LIEN,

complies with and was filed within the allowable time limits set by the

New Brunswick Mechanics' Lien Act.

2. The subject CLAIM FOR LIEN states the Date upon which the last work

and materials were furnished as or on about April 14, 2009. Subject

CLAIM FOR LIEN was filed was April 16, 2009. The difference between

the here within mentioned dates complies with the thirty day minimum

allowable filing time for wages.

3. According to New Brunswick Rules of Court, Rule 16.03(2) the Signed,Dated April 21, 2009, NOTICE OF ACTION (FORM 16 B) Court File

Number F/C/104/09 filed April 21, 2009 Court of Queens Bench Trial

Division of New Brunswick, as specified in the New Brunswick

Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 27 is an action

commenced in which the lien may be enforced. ( see RECORD ON

MOTION BOOK 1 TAB 4)

4. CERTIFICATE OF PENDING LITIGATION issued by Clerk of Court of

Queens Bench, assigned File Number F/C/104/09 was subsequently filed

same day with the York County Registry Office New Brunswick April 21,


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2009, 13:22 hours therefore occurring within and complying with a ninety

day time limit established for filing of same according to Section 27 ofthe

New Brunswick Mechanics' Lien Act. May this please the Honorable Court

that in this case only 5 days had transpired between the April 16, 2009,

filling of a CLAIM FOR LIEN and the April 21, 2009 filling of the

Certificate of Pending Litigation and again we see the Plaintiff is within the

prescribed time limits. The Deputy Registrar Diana L Tucker certified the

registration of the Certificate of Pending Litigation document and assigned

a file number 27051904. ( see RECORD ON MOTION BOOK 1 TAB

3)

5. The Plaintiff Andr Murray having filed above mentioned NOTICE OF

ACTION (FORM 16B) according to the Rules of Court, Rule 16.03(2) The

Plaintiff Andr Murray subsequently Signed and Dated May 20, 2009 a

STATEMENT OF CLAIM (FORM 16C) which was delivered to Court

Client Services to be Filed and was assigned Court File Number

F/C/104/09 May 20, 2009. ( see RECORD ON MOTION BOOK 1 TAB 5)

6. The Plaintiff Andr Murray having Filed a Signed and Dated May 20, 2009

STATEMENT OF CLAIM (FORM 16C) subsequently amended same

according to the Rules of Court, Rule 16.09, 27.10 (2)(a), 27.10 (3) thereby

filing the Signed and Dated August 21, 2009 AMENDED STATEMENT

OF CLAIM (FORM 16C) within the Court File Number F/C/104/09

August 21, 2009 with the Court of Queens Bench Trial Division of New

Brunswick. (see RECORD ON MOTION BOOK 1 TAB 6)


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7. The Plaintiff Andr Murray did cause the Service of the following

Documents to occur according to Rules of Court 16.08, a CLAIM FOR

LIEN, Dated April 16, 2009, CERTIFICATE OF PENDING

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

dated April 21, 2009, STATEMENT OF CLAIM (FORM 16C) Dated May

20, 2009, according to Rule 27.10 (4) and 27.10 (5) AMENDED

STATEMENT OF CLAIM (FORM 16C) Dated August 21, 2009, within

the six month time limit requirement Rules of Court 16.08(2).

8. The Plaintiff 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) DatedAugust 21, 2009.

9. AFFIDAVIT OF SERVICE, Dated the 9th day of November, 2009, of

Process Server George Mallia, of the City of Toronto, in the Province of

Ontario stated as follows:1. On October 19th, 2009, at 7:15 p.m., I personally served DefendantBetty Rose Danielski with the following documents:


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a. Claim for Lien

b. Certificate of Pending Litigation

c. Notice of Actiond. Statement of Claim

e. Amended Statement of Claim

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

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

10.The above mentioned AFFIDAVIT OF SERVICE, Dated the 9th

day ofNovember, 2009, of Process Server George Mallia, has been filled with

Court of Queen's Bench of New Brunswick, November 30, 2009. (please

see copy within RECORD ON MOTION BOOK 1 TAB 1)

11.I Plaintiff Andr Murray responding to Process Server George Mallias

verbalized concerns that Betty Rose Danielski is avoiding service I did take

extra precautions and did send by UPS Delivery Service, prepaid registered

mail, to Defendant Betty Rose Danielski two copies of:

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) DatedAugust 21, 2009.

12.UPS package Service, Express Saver, Billed Charge $20.53, tracking

number was E8386887925, Sender A MURRAY, FREDERICTON NB


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E3B 5V5, Receiver BETTY ROSE DANIELSKI, FUDGER HOUSE

CARE OF TORONTO ON M4X 1K6. ( see RECORD ON MOTION

BOOK 1 TAB 22 and 24 ) Proof of service was by way of signature in

accordance with to Rule 18.03 (4)(c). ( see RECORD ON MOTION

BOOK 1 TAB 23).

13.UPS package Service, Express Shipment, Billed Charge $37.63, tracking

number was E8386887989, Sender MURRAY ANDR, FREDERICTON

NB E3B 5V5, Receiver BETTY ROSE DANIELSKI, TORONTO ON

M5A 2K5. ( see RECORD ON MOTION BOOK 1 TAB 20 and 24 )Proof of service was by way of signature in accordance with to Rule 18.03

(4)(c). ( see RECORD ON MOTION BOOK 1 TAB 21 ).

14.On November 26, 2009, Solicitor E. Thomas Christie for Defendant Betty

Rose Danielski, did file with the Client Services for Court of 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).

15.On November 26, 2009, Solicitor E. Thomas Christie for Defendant Betty

Rose 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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16.On April 20, 2010, Plaintiff Andr Murray Filed a Notice of Motion (Form

37A) with the Court of Queens Bench Trial Division Fredericton, New

Brunswick, requesting Orders for a Continuance of the New Brunswick

Mechanics' Lien action pursuant to New Brunswick Mechanics' Lien Act,

R.S.N.B. 1973, c. M-section 52.1(1)(b). ( see RECORD ON MOTION

BOOK 1 TAB 8 ).

17.A copy of the notice of Motion has been served on the Defendant to the

action pursuant to section 52.1(1)(b). (please see RECORD ON MOTION

BOOK 1 TAB 7 ).

18.A copy of the Notice of Motion, signed, Dated and filed April 20, 2010,

supporting Affidavit of Plaintiff Andr Murray signed, Dated and filed

April 20, 2010 habe been served on the Defendant to the here within

subject action, according to Rules of Court Rule 18.07 (2) Service on

Solicitor of Record, for the Defendant Solicitor E. Thomas Christie, by

telephone transmission, verified successful, to Fax number 472 2091.

19.AFFIDAVIT OF SERVICE (Form 18B), of Plaintiff Andr Murray signed,

Dated and filed April 20, 2010 within the Court of Queens Bench Trial

Division Fredericton, New Brunswick stated that Plaintiff Andr Murray

served Solicitor E. Thomas Christie, for Defendant Betty Rose Danielski,

with the attached documents, namely a copy of a NOTICE OF MOTION,

signed, Dated and filed April 20, 2010 and a supporting Affidavit of

Plaintiff Andr Murray signed, Dated and filed April 20, 2010, at 3:48P.M.

to Fax number (506) 472 2091 by telephone transmission, verified


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successful, according to the attached transmission Verification Report,

Serial number #000H6J423935.

20.The Plaintiff to date has never been served a certain AFFIDAVIT of Betty

Rose Danielski. May this please the Honorable Court that prior to a Court

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

Fredericton Trial Division the Plaintiff attempted to protest the reference to

or inclusion of same document and was not granted the opportunity to

object to the reference of this subject AFFIDAVIT of Betty Rose Danielski

which the Defendant has not yet caused Service upon the Plaintiffaccording to the Rules of Court.

21.On the 10th day of June, 2010, in response to the Defendants DEMAND

FOR PARTICULARS (FORM 27L), I Plaintiff Andr Murray filed with

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

District of Fredericton, a STATEMENT OF PARTICULARS (FORM

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

22.On the 10th day of August, 2010, at 10:00AM, Plaintiff Andr Murray did

serve E. Thomas Christie, Solicitor for Defendant BETTY ROSE

DANIELSKI, STATEMENT OF PARTICULARS (FORM 27M) Dated

the 10th day of June, 2010, by leaving a copy with Solicitor E. Thomas

Christie in person, for Defendant BETTY ROSE DANIELSKI. (please see

RECORD ON MOTION BOOK 2 TAB 35 ).

23.I Plaintiff Andr Murray, November 9, 2010, regarding a related matter

currently being heard Court of Queens Bench Moncton Trial Division, was


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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).

24.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

506975 and subject of the request for Orders of Continuance according to

the Mechanics Lien Act. currently being heard before this HonorableCourt. 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 ).

25.On November 29, 2010, Plaintiff Andr Murray, as Defendant in the Court

Hearing of a related matter, Court File Number M/C/0642/09) did Motion


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the presiding Mr. Justice for a Interim Order, pursuant to Rules of Court,

Rule 44.01, INTERIM RECOVERY OF PERSONAL PROPERTY. The

Order was granted as requested and after much debate about the wording of

the Order, the subject Order was subsequently signed by the Honorable

Court. The Plaintiff in this matter may now coordinate a scheduled entry

into the previously denied access premises that the Plaintiff may retrieve

the relative contracts, which are subject of this Mechanics Lien Action,

moreover, which are essential to irrevocably establishing the Plaintiffs

position in this matter.

26.May this please the Honorable Court Solicitor E. Thomas Christie for

Defendant Betty Rose Danielski, to date has not filed with the Court of

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).

CPART III - ISSUES

1. Questions for the Court to answer.

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

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

A.


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

Introduction

27.The Plaintiff has been to this point unable to retrieve documents, necessary

to prove the Plaintiffs position and move to Discovery, because of

circumstances beyond the Plaintiffs Control. The Plaintiff (in this matter)

has been denied access to to retrieve the necessary documents, so important

to resolving this Action.

28.Not Granting the 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.

29.Should the Honorable Court not Grant the Plaintiffs Requested Order for

or Continuance this will greatly prejudice the Defendant, because the

Defendant will have slipped out of opportunity to responsibly compensate

the Plaintiff for contracts fulfilled and benefits rendered to the Defendant.

30.The Plaintiff respectfully contends that to be circumspect regarding the

question of possible prejudice to the each respective Party, the Plaintiff is


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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.

31.Alternatively granting the requested Order for or Continuance will not

prejudice the Defendant, because, the Defendant would be given the

opportunity to (while in an informal environment) examine relative

substantive Contracts and documents for which the Plaintiff contends the

Defendant is responsible furthermore that the defendant has realized

financial equity benefit at the expense of the plaintiff which must noe be

compensated. This current unresolved situation is the result ofcircumstances the Defendant has set in motion, further, that the Defendant

must now remunerate where remuneration is due. Settling ones obligations

should not require the Honorable Courts oversight. To date the Defendant

has denied the Plaintiffs request of a Consent to Continuance of this Action

unnecessarily prolonging settle of the respective matters therefore the

Defendant has avoided genuine Remedy.

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

other side'. The maxim means, in law, that no person shall be condemned,

punished or have any property or legal right compromised by a court of law


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without having heard that person, the Plaintiff is requesting of the

Defendant, to be heard on this matter. The Plaintiff believes that

DISCOVERY will reveal all necessary to resolve the differences of

opinion. A Order for a Continuance of the Mechanics' Lien Action

pursuant to New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-

section 52.1(1)(b), will provide both Parties to this Action opportunity to

go to DISCOVERY. This conceivably would realize a natural conclusion.

As this Honorable Court is well aware principles of natural justice have

evolved under common law as a check on the arbitrary exercise of power,

and ensure that these powers are exercised in a just and fair manner.Common law, addresses this need to control the arbitrary exercise of

powers through application of the principles of natural justice to the

exercise of such powers.

The Plaintiff and Defendant are both entitled to be heard on this Mechanics

Lien Action and encouraged by many centuries of wisdom that the

DISCOVERY process as provided for within the subject Act will possibly

provide genuine conclusive remedy.

33.The Plaintiff sincerely believes that DISCOVERY will reveal and remove

any questions that currently exist, further, as DISCOVERY is the proper

direction this matter must proceed to. This most certainly must be true. The

decision of this Honorable Court should be in accord with the principles of

natural justice and the Honorable Court may grant the Order for

Continuance as requested by the Plaintiff and this Honorable Court may

further Order that the Parties undertake to perform DISCOVERY.

Granting the continuance


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34.The Plaintiff argues that the Court may keep with the general direction

expressed in the New Brunswick Rules of court, Rule 1.03(2) to secure

the just, least expensive and most expeditious determination of every

proceeding on its merits; should the Court not grant the requested

Continuance,the result would be that the Plaintiff would be prejudiced,

further, the Plaintiff will be unable to pursue the benefits of genuine

remedy as is anticipated through the DISCOVERY process, further as

provided within the Mechanics Act; to experience closure based on the

substantive material able to be disclosed.

35.The Plaintiff contends that in any event, the matter remained alive within

the one year time period, moreover the Plaintiff in order to meet the

requirement established by Section 52.1(1)(b) of the Act did within the

prescribed period of time according to the act, the Plaintiff did prior to the

expiry of the one year time period,` appropriately file under Section

52.1(1)(b) of the Act. Accordingly, there can be no deemed discontinuance

of the action since Section 52.1(1)(b) of the Act was complied with. Aslong as an application is made and notice of the application given to the

defendant within the one year for the commencement of the action

timeline, Section 52.1 has been complied with. The provision does not go

on to deal with deemed non-compliance in the event the action is not set

down for trial by the expiration of the continuation period. It is the

comprehension of the Plaintiff that is something to be dealt with in the

Order of continuance. Such an Order could contain a provision that in the

event the action is not set down for trial prior to the expiration of the

continuation period, the action shall be deemed discontinued or shall be


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struck. But Section 52.1 contains no such provision nor do the Plaintiffs

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

36.The Plaintiff argues that the principle of natural justice which is to hear the

other side/party, compels the Court to grant the requested Continuance, so

that the Plaintiff may be heard at a later time if necessary, furthermore,

justice will be best served by granting the requested Continuance further,

the balance of prejudice and or convenience favors granting the

Continuance. Balancing these and any other relevant factors will enable the

Court to ensure that justice is done in this subject matter before the Court.

37.The Plaintiff offers that it is in the interest of justice that the Honorable

Court grant the Order of Continuance of the 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.

38.The Plaintiff argues that the Defendants will not be prejudiced in any

meaningful 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.

39.The Plaintiff respectfully asserts that a refusal to grant the Plaintiffs

request therefore, not granting of Orders of a Continuance would do an


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palatable significant injustice to the Plaintiff, while to grant the Orders as

requested for a Continuance is not going to cause any identifiable injustice

to the Defendant and or prejudice the Defendant's defence, then the

requested Continuance may reasonably be granted.

40.The Plaintiff points to the Code of Professional Conduct, CHAPTER 15

(2)(iii), 15 (2) (vii) and 15 (4) of the Law Society of New Brunswick

which appears to compel Solicitor for the Defendant to avoid taking

advantage of slips, irregularities or mistakes on the part of the Plaintiff, not

going to the merits, which does not involve a prejudice of the rights of theDefendant. 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.

Rule 1.03 Interpretation

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

proper administration of laws. The fair and proper administration of

Justice in the Courts of New Brunswick, naturally require procedural

application of the Rules of Court, further, with the intention of arriving at a

determination of every proceeding on its merits. Please note that the filing

of the here within Notice of Motion requesting of the Honorable Court

Orders for Continuance of same became unavoidably necessary for the

Plaintiff in pursuance of Mechanics' Lien Act, R.S.N.B. 1973, c. M-section


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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.

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

CITATION, APPLICATION AND INTERPRETATION1.02 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.

43.A determination should be in keeping with the general direction contained

in Rule 1.03(2) to secure the just, least expensive and most expeditious

determination of every proceeding on its merits, Rule 1.03(2), of the New

Brunswick Rules of Court is reproduced as follows:

CITATION, APPLICATION AND INTERPRETATION1.03 Interpretation

1.03(2) These rules shall be liberally construed to securethe just, least expensive and most expeditious determination

of every proceeding on its merits.

44.The Plaintiff respectfully requests that the Honorable Court keep with the

general direction expressed in the New Brunswick Rules of court, Rule


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1.03(2) to secure the just, least expensive and most expeditious

determination of every proceeding on its merits, by taking into

consideration the prejudice caused against the Plaintiff, if the Honorable

Court does not grant the 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.

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

PREJUDICEprejudice,n.1. Damage or detriment to one's legal rights or claims. Seedismissal with prejudice, dismissal without prejudice underDISMISSAL.

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

action; esp., a condition that, if shown by the defendant, will defeat aplaintiff's motion to dismiss a case without prejudice. The defendantmay show that dismissal will deprive the defendant of a substantiveproperty right or preclude the defendant from raising a defense that willbe unavailable or endangered in a second suit. [Cases: Federal CivilProcedure 1700; Pretrial Procedure 510. C.J.S. Dismissal and Nonsuit 2427.]

undue prejudice. The harm resulting from a fact-trier's being exposed toevidence that ispersuasive but inadmissible (such as evidence of prior criminal

conduct) or that so arouses theemotions that calm and logical reasoning is abandoned.

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


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

46.In Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) TheHonourable Justice Richard stated the following regarding criteria for

extension of time to serve the pleading at paragraph 18 as follows:

[18] . Thus, Mr. Ferris would haverequired an extension of time to serve the pleading. The criteria forextending time have been addressed in several decisions of this Court.It is concisely stated inBulmer-Woodard v. Bulmer2006 CanLII 30456(NB C.A.), (2006), 307 N.B.R. (2d) 276, [2006] N.B.J. No. 363 (C.A.)(QL) as follows:

The overriding consideration in assessing anapplication to extend a time limit is the need "todo justice in each particular case": seeAtlanticPressure Treating Ltd. v. Bay Chaleur

Construction (1981) Ltd. reflex, (1987), 81N.B.R. (2d) 165 (C.A.), [1987] N.B.J. No. 528(C.A.) (QL) per Ryan J.A. at para. 7. InNaderiv. Strong 2005 NBCA 10 (CanLII), (2005), 280N.B.R. (2d) 379 (C.A.), [2005] N.B.J. No. 67(C.A.) (QL), 2005 NBCA 10, at para. 13 this was

explained as follows:

[...] to do justice in a particular caserequires a balancing of the prejudice toboth parties resulting from the decision togrant or refuse the extension of time. Anintention to appeal within the timeprescribed and any explanation given bythe proposed appellant for missing thelimitation period are factors to beconsidered together with any evidence of

actual prejudice the delay would cause tothe other party. Equally important to theequation is the determination of whether ornot there is a serious issue to be appealed[...] as opposed to the matter being


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frivolous or vexatious, or, stateddifferently, whether or not there is an

arguable case for consideration by theCourt: seeDuke v. B.L.E., [1989] N.B.J.No. 716 (C.A.) (QL) per Stratton, C.J.N.B.andDoug's Recreation Centre Ltd. et al. v.Polaris Industries Ltd. 2001 CanLII 19446(NB C.A.), (2001), 237 N.B.R. (2d) 190;612 A.P.R. 190 (C.A.) per Robertson, J.A.Balancing these and any other relevantfactors will enable an application judge toensure that justice is done in the particularcase. [para. 9]

47.The Plaintiff requests of this Honorable Court, to consider, that any

existing prerequisites to the granting of an extension of time as found

above in Ferris v. The City of Fredericton, Balancing these and any other

relevant factors will enable an application judge to ensure that justice is

done in the particular case may be relatively similar to existing

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

48.The Plaintiffs position is that justice will be best served by granting the

requested 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).

49.Further in Novotny v. Canada (Minister of Citizenship and Immigration),

2000 CanLII 14762 (F.C.) MR. JOHN A. HARGRAVE,

PROTHONOTARY, stated the following regarding the test for an

extension of time paragraphs 2 6 as follows:

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


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known. Grewal, as summed up by Mr. Justice Strayer, as he then was,inBeilin v. Minister of Employment and Immigration reflex, (1995), 88

F.T.R. 132 at 134, stands for the proposition that "as the condition forobtaining such an extension of time an applicant must show that therewas some justification for the delay throughout the whole period of thedelay and that he has an arguable case...".

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

[4] The factors to consider in an application for an extension are, toa great degree, open-ended: see for exampleNoel & Lewis HoldingsLtd. and Warky v. Canada reflex, (1986), 5 F.T.R. 166 at pages 168and 169 and Karon Resources Inc. v. Minister of National Revenuereflex, (1994), 71 F.T.R. 232 at 235-236. There are three additionalfactors which come into play in this instance. First, there is theunderlying consideration of doing justice between the parties (Grewal,supra, at 110). Second, a compelling explanation for delay may resultin a time extension where the arguable case is weak, and vice versa(Grewal, supra, at 116). Third, there must be material before the Courtupon which the Court can be satisfied both as to an explanation for the

delay and that the case is an arguable one (Consumers" Association ofCanada v. Ontario Hydro [No. 2] [1974] F.C. 460 (F.C.A.) at 463, asreferred to in Grewal, supra, at 110).

[5] In the present instance at issue are delay, whether there is anarguable case and prejudice to both Applicants and Respondent. Thedelay before the Respondent attempted to file the memorandum ofargument was minimal and, as I have noted, it was the result of amisreading of a calendar. This was an unfortunate oversight, but in thisinstance it is not fatal. Here I would acknowledge that counsel for theApplicants pleads the monetary hardship and prejudice to his clients as

a result of the filing oversight: that is unfortunate, but it can always berectified by an award of costs.

[6] What is fatal to the Respondent"s motion is that there is nothing,beyond a bare assertion that "The Respondent has an arguable case." by


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which I may determine whether the case is in fact arguable. As ChiefJustice Jackett said in Consumers" Association of Canada (supra) at

page 463, an extension of time depends upon the Court having before itmaterial from which it can satisfy itself that there is an arguable casefor setting aside the order or decision in question. In this instance thereis no material: a bald assertion of an arguable case amounts to nothing.As Associate Senior Prothonotary Giles points out in Valyenegro v.Canada reflex, (1995) 88 F.T.R. 196, there can be no prejudice where aparty

With regard to the prejudice to the applicant, I think it may beassumed that the applicant will be prejudiced if he is denied theright to put forward his case. If, however, the applicant does not

have a case, he cannot be prejudiced if an extension of time isdenied. Here the applicant has tendered no evidence of anarguable case. There is therefore, no evidence of the existenceof an arguable case which he is being denied the right to putforward. There is therefore no evidence of any prejudice to theapplicant. [page 201]

This leads back to the concept of the underlying consideration of doingjustice between the parties, a factor in Grewal. While the result, adenial of the time extension, may be unfortunate, there is no injusticewhere a party, here the Respondent, fails to put forward an arugable

case.50.Considering the underlying principle of doing justice between the parties

may this Court compare the here within above mentioned test in Novotny

v. Canada, 2000, supra, to the 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.


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51.In response to the first part of a test, as set out in Grewal v. Minister of

Employment and Immigration (1986),the Plaintiff Andre Murray a

Residential Leasehold Tenant was caught unawares regarding a surprise

forced eviction from his residence of five years; further the eviction

occurring October 23, 2009, was resulting from an ex parte hearing and

subsequent default judgment Ruling the Court of Queens Bench Trial

Division Judicial District of Moncton thereof consequently granting Orders

as requested by the Plaintiffs in that matter to evict Tenant Andre Murray

forthwith. Incidentally Tenant Andre Murray was evicted as hrewithin

above mentioned on a Order using words such as forthwith.Tenant Andre Murray was indeed evicted in a forthwith manner without

prior notice occurring October 23, 2009.

Please note: Conversion of Tenant Andre 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 experiencethe 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, 2009

Eviction Orders, as enforced October 23, 2009. Since that time the Plaintiff

has actively pursued all known methods of resolve in the retrieval of

property a conversion of Andre Murrays property.


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52.Plaintiff Andre Murray has attended three separate Court hearings

involving the matter of access to the here within above mentioned

contractual documents. Plaintiff Andre Murray has recently successfully

acquired a Order from the Court of Queens Bench Trial Division Judicial

District of Moncton, granting the Plaintiff access to retrieve said

contractual documents currently being with held.

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

known:

2) and that he has an arguable case.53.In response to the second part of the above referenced test, Grewal, supra,

at 116, the Plaintiff has presented a case replete with argument regarding

the Plaintiffs fulfillment of the time requirements and adherence to the

Rules of Court as found in the Plaintiffs Submission filed with Court Client

Services in June, 2009.

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

come into play in this instance.

First, there is the underlying consideration of doing justice between the

parties (Grewal, supra, at 110).

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

JUSTICE

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

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


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UNJUSTunjust, adj. Contrary to justice; not just.

55.The following definition of fair is found provided online Merriam

Webster at the following: URL address: http://www.merriam-

webster.com/dictionary/fair

Main Entry: 1fairPronunciation: \fer\Function: adjective

Etymology: Middle Englishfager, fair, from Old Englishfger; akinto Old High GermanfagarbeautifulDate: before 12th century

6 a: marked by impartiality and honesty : free from self-interest,prejudice, or favoritism b (1):conforming with the established rules : allowed (2): consonant withmerit or importance : due c: open to legitimate pursuit,attack, or ridicule

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

follows:

FAIRfair,adj.1. Impartial; just; equitable; disinterested .2. Free of bias or prejudice .

57.Merriam Webster Online Dictionary defines fair as an action marked by

impartiality and honesty. It involves acting without prejudice, favoritism orself interest. Fairness is then a cardinal principal that a civilized society

should advocate.


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58.Black's Law Dictionary defines fair as free of bias or prejudice and it

would 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.

59.This Honorable Court must provide time to allow the Plaintiff to be heard

on the matter before the Court as requested, with all the substantive

material contractual documents all evidence, regarding the PlaintiffsMechanics' Lien action pursuant to Mechanics' Lien Act, R.S.N.B. 1973, c.

M-section 52.1(1)(b), the technicality of a prescribed time limit, can easily

be cured by granting of the requested Continuance.

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

other side'. This maxim means, in law, that no person shall be condemned,

punished or have any property or legal right compromised by a court of law

without having first heard that person, the Plaintiff in this matter is

requesting of the Court to be heard on this matter; a Mechanics' Lien

Action pursuant to Mechanics' Lien Act, R.S.N.B. 1973, c. M-section

52.1(1)(b), to its natural completion, which can only occur, if the

Honorable Court grants an Order for a Continuance of the 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 andfair manner. Common law, addresses this need to control the arbitrary

exercise of powers through application of the principles of natural justice to


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the exercise of such powers. The decision of this Honorable Court should

be in accord with the principles of natural justice.

61.Reference: May it please the Honorable Court the following is found at

legal-dictionary.thefreedictionary.com

at the following address:

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

audi alteram partem

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

62.Further, may it please this Honorable Court the following principle of

natural justice is found at wikipedia.org at the following address:

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

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

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

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

the following address:

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


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Audi Alteram Partem

Latin; literally 'hear the other side'.The maxim means, in law, that no person shall be condemned,punished or have any property or legal right compromised by a court oflaw without having heard that person.

Justice Bayley wrote, in Chapel v Child:

"I know of no case in which you are to have a judicial proceeding, bywhich a man is to be deprived of any part of his property, withouthaving an opportunity of being heard."

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

Habeas corpus was an early expression of the audi alteram partemprinciple.

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

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

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

"It is beside the point that the claim may turn out not to be meritorious.

It is beside the point that delay in the enforcement of the law may beentailed ...

"The right to be heard somehow by someone before a claim is denied,particularly if life hangs in the balance, is far greater in importance to


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society, in the light of the said history of its denial, than inconveniencein the execution of the law. If this is true when mere property interests

are at stake ... how much more so when the difference is between lifeand death?"

REFERENCES:

Caritativo v People of State of California 357 US 549 (1958) Chapel v Child2 Cr. & J. 579 (1832)

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

the following address:http://en.wikipedia.org/wiki/Audi_alteram_partem

Audi alteram partemFrom Wikipedia, the free encyclopedia

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

"Audi alteram partem" is considered a principle of fundamental justiceor equity in most legal systems. The principle includes the rights of aparty or his lawyers to confront the witnesses against him, to have a fairopportunity to challenge the evidence presented by the other party, tosummon one's own witnesses and to present evidence, and to havecounsel, if necessary at public expense, in order to make one's caseproperly.[edit] History of use

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


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The principle was referred to by the International Court of Justice in theNuclear Tests case, referring to France's non-appearance at

judgment.[4]

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

65.Further to the second part, of the previously mentioned, Grewal, supra, at

116, three additional factors which come into play. May it please this

Honorable Court the reference follows:

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

supra, at 116).

66.Similarly to what was stated above in Novotny v. Canada, 2000, supra, the

Plaintiff Andre Murray took reasonable steps to seek advice and attempt to

retain counsel regarding the decision of Honorable Court in the issuing of

the Order of October 20, 2009. At no time did the Plaintiff abandon his

intention to seek a setting aside of the impugned Order, nor in light of thecircumstances, was the Defendant guilty of any inappropriate or

unreasonable delay in bringing the within motion to Rescind the impugned

Moncton Order of October 20, 2009. Further, Plaintiff Andre Murray took

all known reasonable steps in an attempt to regain the Subject Contract

documents, but the efforts where frustrated, by opposing Council (in the

Moncton Court), which made retrieval of the subject documents impossible

because of a standing Court Order of October 20, 2009.


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67.Lastly, the third part of the previously mentioned three additional factors

found within Grewal, supra, at 116, which come into play, may it please

the Honorable Court the following excerpt:

Third, there must be material before the Court upon which the 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).

68.The Defendant has filed voluminous material for the Court to consider

regarding both as to an explanation for the delay and that this matter beforethe Honorable Court is an arguable one, please refer to Tab 29 of the

Plaintiffs Record on Motion Book 1.

69.Further, returning to application of the New Brunswick Rules of court,

Rule 1.03(2) to secure the just, least expensive and most expeditious

determination of every proceeding on its merits, may it please the

Honorable Court, further, it is the Plaintiffs understanding that Judgment

on the merits is a judgment made after consideration of the substantive, as

distinguished from procedural issues in a case. Further to this point please

find the following definition of Merits.

70.Black's Law Dictionary (8th ed. 2004) at Page 3136 May it please the

Honorable Court the defines merits as the following:

MERITS

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


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2.EQUITY(3) .

71.The rules of Court 1.03(2) states These rules shall be liberally

construed; please find the following definition of Construed.

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

CONSTRUEconstrue (kn-stroo), vb. To analyze and explain the

meaning of (a sentence or passage) .

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

JUSTjust, adj. Legally right; lawful; equitable

72.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 to

extraneous or technical points, esp. of procedure).

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


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

Main Entry: 1meritPronunciation: \?mer_?t, ?me_r?t\Function: noun

1 a obsolete : reward or punishment due b : the qualities or actions thatconstitute the basis of one's deserts c : a praiseworthy quality : virtue d :character or conduct deserving reward, honor, or esteem; also :achievement2 : spiritual credit held to be earned by performance of righteous actsand to ensure future benefits3 a plural : the substance of a legal case apart from matters of

jurisdiction, procedure, or form b : individual significance orjustification

74.Further, on the matter of the semantic on the merits is defined by legal-

dictionary.com at the following address:

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

on the merits

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

75.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.


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76.In Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Justice H. H.

McLellan stated his view regarding the discretion of the Trial Judge and

also his view that the Court of Appeal has reaffirmed that matters of civil

procedure should be decided on their substance and merits, (Please find at

page 9 to page 17 ) as, follows:

[Page 9]

Ironically, such comments implying a reduction of a trialjudge's traditional discretion in such matters have occurred whilethe new Rules of Court, in force since 1982, have been

attempting to escape the bounds of excessive formalism. Forexample, the Rules now emphasize that:

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

2.01 The court may at any time dispense with compliancewith any rule, unless the rule expressly or impliedlyprovides otherwise.

2.02 A procedural error, including failure to comply with

these rules or with the procedure prescribed by an Act forthe conduct of a proceeding, shall be treated as anirregularity and shall not render the proceeding a nullity,and all necessary amendments shall be permitted or otherrelief granted at any stage in the proceeding, upon properterms, to secure the just determination of the matters indispute between the parties . . .

It seems to me to be worthy particular emphasis that thephrase "should not be granted except for the most compellingreasons" are not found in the Rules of Court. Those words

appear to me to be inconsistent with both the letter and the spiritof the Rules and the Judicature Act, which, for example, in s.26(3) uses words such as "as to the Court seems just".


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[Page 12]

Recent Civil Procedure Decisions

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

In Sullivan v. Irving-Zed (Judith) Photography et al. reflex,(1994), 149 N.B.R. (2d) 300, the Court of Appeal reversed adecision to allow a claims manager of the defendant's insurancecompany (who was paying for the defence and would pay for anysettlement or award) to be present at the examination fordiscovery of the plaintiff in an action arising out of a motorvehicle accident. Although the insurer would have to pay, theCourt of Appeal decided the insurer "is not a party and is notentitled to be present". That strikes me as favouring form oversubstance.

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

In Sivret the Court of Appeal also enforced the disputedacceptance by the litigation guardian of an Offer to Settle claimsrelating to the boy's suffering, future loss of income and otherdamages from an accident. Most of the boy's claim would diewith him. That Offer to Settle had been made before the boy fellfrom the bridge and went "missing".

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

[Page 13]


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In R. v. Fraser (February 22, 1995) the Court of Appealallowed an appeal by the Crown and criticized me for raising a

Limitations of Actions Act defence for an unrepresenteddefendant who was being sued by the Crown to collect a very oldstudent loan. The Court of Appeal cited no cases but said:

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

That book by Mew does makes that point but cites insupport of it only two cases. Those two cases are extremelyancient English cases from 360 years ago, Thursby v. Warren

(1629), Cro. Car. 159, 79 E.R. 738, and Stile v. Finch (1634),Cro. Car. 381, 79 E.R. 932.

For reasons that are not apparent in Fraser, the Court ofAppeal ignored the well-known provision in the Interpretation Actwhich lays down the modern rule that:

4. Every Act shall be judicially noticed, without being speciallypleaded.

Fraser also strikes me as another example of the Court of

Appeal favouring form over substance. Ironically, counsel for thesuccessful appellant in Fraser is one of the counsel for Petro-Canada in this case.

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

In October 1994, before the Court of Appeal decidedSivret and Fraser, I allowed a motion in this action for an interim

injunction restraining Petro-Canada from proceeding againstDaly under its power of sale until 30 days after the trial judgmentin this action. In doing so because of special circumstances, Ideparted


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[Page 14]

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

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

Last month the Court of Appeal upheld an unusualdiscretionary order by another judge that extended the time foradding a defendant after the expiry of a limitation period becauseof the particular circumstances of the case. That case is YorkEquipment Ltd. v. Dabrowski Estate (April 6, 1995).

As I see it, in York Equipment the Court of Appeal hasreaffirmed that matters of civil procedure should be decided ontheir substance and merits.

Also the Court of Appeal particularly emphasized in YorkEquipment that:

We repeat the standard of review adopted by this Court inpast cases, and as was said over a century ago inGelding v. The Wharton Saltworks Company (1876), 1

Q.B.D. 374 (C.A.) at p. 375:

. . . on a question which depends on the discretion of thejudge, the Court of Appeal does not in general interferewith that discretion. Not that the Court of Appeal hasnot complete jurisdiction over such cases, or that thedecision of the Court below would not be overruledwhere serious injustice would result from that decision;but, as a general rule, the Court of Appeal declines tointerfere.

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


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[Page 15]

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

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

Cheminski was an appeal from an application to strike outa portion of a statement of defence. After referring to Golding Mr.

Justice Hughes, as he then was, (Limerick, J.A. and Bujold, J.A.concurring) at p. 763 quoted with approval "as a correctstatement of the law applicable to appeals such as the present"the English Supreme Court Practice.

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

"There are many authorities for the proposition that anappeal will not be entertained from an order which it

was within the discretion of the Judge to make, unless itbe shown that he exercised his discretion under amistake of law, or in disregard of principle, or under amisapprehension as to the facts; or that he took intoaccount irrelevant matters or failed to exercise hisdiscretion, or that his order would result in injustice; andthe Court will assume that the Judge properly exercisedhis discretion unless the contrary is shown."

Collier was an appeal of a case of unequal division ofmarital debt. Mr. Justice Rice described what I will call the

"Collier standard of review" for the Court of Appeal (Stratton,C.J.N.B. and Hoyt, J.A. concurring) at pp. 265-266 as follows:

[Page 16]


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Where an exercise of discretion is challenged, this courthas stated on several occasions that it would not interfere with

such exercise unless it is manifestly wrong. Newcastle (Town) v.Mattatall, Porter and Harris 1988 CanLII 127 (NB C.A.), (1988),87 N.B.R. (2d) 238; 221 A.P.R. 238; Van Wart v. La-KoEnterprises Ltd. (1981), 35 N.B.R. 256, 88 A.P.R. 256.

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

. . . It is not usual for a Court of Appeal to set aside ordersin the exercise of a discretion. The first case of this nature

is Golding v. Wharton Saltworks Co. (1876), 1 Q.B.D. 374;wherein the Court of Appeal unanimously declared that itwould not do so unless they could say that the case wasso 'extreme' and the circumstances so special that a'serious injustice' would result if the order complained ofwas sustained, and cf. Knowles v. Roberts (1888), 38 Ch.D. 263, where Cotton, L.J., held, at p. 268, that 'materialinjury' and 'very great prejudice' had been occasioned byorder and therefore it was set aside.

This view of non-interference with judicial discretionhas been constantly followed and in a very striking way in

a case reported no later than December 9 last, Maxwell v.Keun (1927), 44 Times L.R. 100, at p. 101, in the EnglishCourt of Appeal and they said they would not do so unlessthere was what Atkin, L.J., declared had been occasionedby the order of the Lord Chief Justice, viz., 'a verysubstantial injustice'."

The judge of first instance made a discretionary order withrespect to an unequal division of marital debts. As I am not ableto say that in exercising his discretion the trial judge wasmanifestly wrong or that any substantial injustice resulted, I

would not intervene.

[Page 17]


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In both Collier and York Equipment the Court of Appealignored Cheminski. I interpret Collier and York Equipment as

standing for the premise that "Cheminski standard of review" isno longer the law in this province.

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

That "Collier standard of review" was concurred in byStratton, C.J.N.B., in Collier. In my view, his concurrenceminimizes the effect of his comment in Atlantic Speedy Propanethat discretionary procedural relief "should not be granted exceptfor the most compelling reasons" which echoed Miller, J. inMcCarthy that "as with all discretionary powers, [it] should not begranted except for the most compelling reasons".

In my opinion in view of Collier and York Equipment thoseearlier words by Chief Justice Stratton in Atlantic Speedy shouldnot be considered as implying that the standard of review of

judicial discretion in a matter of civil procedure is to verify theexistence of "most compelling reasons".

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

77.The Plaintiff on the grounds as stated found here within above in paragraph

35 inter alia requests that the Court favor substance over form in this matterregarding the requested Continuance to overcome the technical time

limitations, of the Mechanics Lien Act.


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78.In Western Surety Co. v. National Bank of Canada, 2001 NBCA 15

(CanLII) J. ERNEST DRAPEAU, J.A. stated the following regarding

application of Rule 2.02 (Please find at paragraph 91) as follows:

[91] Rule 2.02 of 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.

79.The word enjoins was of particular note to the Plaintiff, so may it please

the Honorable Court the definition is provided below from Black's Law

Dictionary (8th ed. 2004) , Page 1608 describes ENJOIN as follows:

enjoin, vb. 1. To legally prohibit or restrain by injunction . [Cases: Injunction 1.C.J.S. Injunctions 24, 12, 14, 22, 24, 166.]2. To prescribe, mandate, or strongly encourage . Alsospelled injoin. enjoinment (for sense 1), n.

enjoinder (for sense 2), n.

Rule 2.01 and 2.02

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

2.01 The Court Dispensing with ComplianceThe court may at any time dispense with compliancewith any rule, unless the rule expressly or impliedly providesotherwise.

2.02 Effect of Non-ComplianceA procedural error, including failure to comply with

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


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to secure the just determination of the matters in disputebetween the parties. In particular, the court shall not set

aside any proceeding because it ought to have been commencedby an originating process other than the one employed.

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

Justice TURNBULL, J.A. stated the following regarding the application of

Rule 2.01 (Please find beginning at the end of 6 through to page 8) as

follows:

Did the trial judge err in refusing to grant the amendingmotion proposed by Juniberry and Mr. Hong? Rule 27.10 beginswith a threshold 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 themotion, and if so, on such terms "which are necessary for the

purpose of determining the real questions in issue". Rule 2.02further 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 orinjustice. Accordingly, amendments to pleadings are generally


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allowed. That is the reason for the use of such phrases as"determining the real questions in dispute" in Rule 27.10 and

"just determination of the matters in dispute" in Rule 2.02. As 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,the exercise 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 determineif an 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"?

82.A corresponding question, relative to the matters before this Court is found

referred to, found mentioned above, the Court hearing of the matter of

Juniberry Corp. v. Triathlon Leasing Inc, supra, further, in that matter, the

granting of the requested Continuance, would have deprived the other party

of"any defence [or claim] which would have otherwise been available to

it," or result in prejudice, "which cannot be compensated for by costs or an

adjournment".


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83.Above paragraph has a question - answer should be no; the Plaintiff asserts

that as a general principle, the Rules of Court should not be used to prevent

the delivery of rights; nor should they be used to preclude the enforcement

of claims, which are derived from the substantive law. Moreover, a Court

should interpret and apply the Rules of Court to ensure, to the greatest

extent possible, that there is a determination, as illustrated within Juniberry

Corp. v. Triathlon Leasing Inc, supra, unless the application of the rules

would result in a serious prejudice or injustice.

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

be enforced. As such, a Court should interpret and apply the rules to

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

substantive law unless the application of the rules would result in a serious

prejudice or injustice. In a way that is appropriate to these particular

circumstances, the granting of a Continuance is generally allowed, when

requested. That is the reason for the use of such phrases a: determiningthe real questions in dispute" in Rule 27.10 and "just determination of the

matters in dispute" in Rule 2.02. As a general principle, therefore, the rules

of procedure should not be used to prevent the delivery of rights; nor

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

derived from the substantive law.

85.In LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) RIDEOUT, J. stated

regarding applying Rule Rules 1.03(2); 2.02; 3.02(1) and (2) at paragraph

11 to 19 as follows:


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[11] Rule 16.08(1) requires that once a Notice ofAction with Statement of Claim Attached has been filed

with the Clerk of the appropriate Judicial District, it mustbe served within six months. In his motion Mr. LeBlanc

relies on Rules 1.03(2); 2.02; 3.02(1) and (2) whichread:

1.03 Interpretation(2) These rules shall be liberallyconstrued to secure the just, leastexpensive and most expeditiousdetermination of every proceeding on its

merits.

2.02 Effect of Non-ComplianceA procedural error, including failure tocomply with these rules or with theprocedure prescribed by an Act for theconduct of a proceeding, shall betreated as an irregularity and shall notrender the proceeding a nullity, and allnecessary amendments shall bepermitted or other relief granted at any

stage in the proceeding, upon properterms, to secure the just determinationof the matters in dispute between the

parties. In particular, the court shallnot set aside any proceeding because itought to have been commenced by an

originating process other than the oneemployed.

3.02 Extension or Abridgment(1) Subject to paragraphs (3) and (4),

the court may, on such terms as may bejust, extend or abridge the timeprescribed by an order or judgment orby these rules.


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(2) A motion for extension of time may

be made either before or after theexpiration of the time prescribed.

[12] Mr. Bastarache in his motion relies upon Rule26.01(a) which provides:

26.01 Where AvailableA defendant who is not in default underthese rules or under an order of thecourt, may apply to have the actiondismissed for delay where the plaintiff

has failed

(a) to serve his Statement of Claim onall the defendants within the timelimited for so doing

[13] In cases of this nature, as a general comment, itis accepted that the Court should look to see if there is ajustifiable excuse for the delay and what prejudice mightaccrue to either party. In the latter instance regard mustbe had to the possible prejudice to the Defendants action

due to things like the unavailability of witnesses, failingmemory, loss of documentation.

[14] Mr. LeBlanc has referenced a number ofauthorities. In Martin v. Goodine(1983), 53 NBB (2d) 52

(QB) the Court was faced with a situation in which alawyer was lax in pursuing the action. In fact, the lawyerfailed to serve the Defendant within the six month period.Deschnes, J. as he then was said at paragraphs 33 and34:

33 In my view, if the plaintiff issuccessful in establishing that thefailure to comply with Rule 16.08(2) isnot as a result of his personal


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involvement but rather the result oflaxity on the part of his solicitor and

that no prejudice to the defendant hasoccurred, the conduct of his solicitor

should be treated as a neutral factorand the court in such circumstancesshould concern itself primarily with therights of litigants and not the conduct ofsolicitors.

34 On the other hand, if adefendant's position has beenprejudiced as a result of the failure on

the part of the plaintiff's solicitor tocomply with Rule 16.08(2) or failure toproceed without delay to present amotion for an extension order, I fail tosee how a defendant should be visitedby the consequences of the plaintiff'ssolicitor's mistakes; under such

circumstances, as between litigants, theplaintiff stands in a better position thanthe defendant by reason of the fact that

the former would probably have a cause

of action against his solicitor whereasthe defendant must live with theprejudice caused.

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

6 On the other hand, counsel for

the plaintiff submitted that the plaintiff

would itself suffer serious prejudice ifthe court did not exercise itsdiscretionary power in the present caseand allow service of the writ of


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summons on the defendant. He reliedon the following case law in support of

his claim: Brown v. Humble, [1959] O.R. 586; Matheus v. Wikes, [1960] O.W.

W. 3369; Martin v. Goodine (1983), 53N.B.R.(2d) 52; 138 A.P.R. 52; Moffat v.Rowding, 14 D.L.R.(3d) 186. Inparticular, he relied on the case ofSimpson v. Saskatchewan GovernmentInsurance Office, 65 D.L.R.(2d) 328,and cited the following passage frompage 333 of the decision:

"In an application to renew a writof summons the basic questionwhich faces the court is, what isnecessary to see that justice isdone? That question must beanswered after a careful studyand review of all the

circumstances. If the refusal torenew the writ would do anobvious and substantial injustice

to the plaintiff, while to permit it

is not going to work anysubstantial injustice to thedefendant or prejudice thedefendant's defence, then the writshould be renewed. This shouldbe done even if the only reason fornon-service is the negligence,inattention or inaction of theplaintiff's solicitors andnotwithstanding that a limitationdefence may have accrued if a

new writ was to be issued. If thenon-service of the writ was due tothe personal actions of theplaintiff, that, of course, would be


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a fact to be considered by thecourt. Each case should be

considered in the light of its ownpeculiar circumstances and the

court, in the exercise of itsjudicial discretion, should bedetermined to see that justice isdone."

7 The above-mentioned cases clearlyreveal that a court has a fairly widediscretionary power to extend the timefor service of a writ of summons and to

allow service of the writ even if theaction is statute-barred. It is the court'sresponsibility to consider all of thecircumstances which caused the delayin serving the originating process, thelength of the delays and the reasons forthem including counsel's negligence or

carelessness. The rule which emergesfrom these cases unequivocallyrecognizes that the court's main

concern must be to see that justice is

done and to make certain that theextension of time for service does notprejudice or work any injustice to eitherof the parties. If, for example, adefendant discharged a third party fromhis share of the liability towards theplaintiff after expiry of the time forservice, the extension of the periodwould then prejudice [*page188] thedefendant's defence of his rights againstthe plaintiff by preventing him from

asserting that third party's liability.Consequently, it is the court'sresponsibility to decide whether there isan injustice caused to the plaintiff by


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refusing the extension of time orwhether the extension of time causes an

injustice to the defendant by preventinghim from fully asserting every possible

ground of defence at his disposal indefence of the action. In the presentcase, it is true that a period of almostthree years has passed since the expiryof the twelve month period following theissue of the writ of summons, asprovided for by the old Rules of Court.This is, in fact, a significant delay.Furthermore, it is clear that the

defendant is in no way responsible forthe plaintiff's delay in having the writ ofsummons served. The only cause for theplaintiff's delay is the negligent failureof its counsel to take the necessarysteps within the required time. Thedefendant submitted, on the other

hand, that the delay caused herprejudice in that during that delay, shecontracted other debts in order to

further her studies. However, she did

not indicate how the delay hadinterfered with her asserting all possiblegrounds of defence against the claimbrought against her or how she wasdeprived of a defence which she mightotherwise have been able to assert.Moreover, it is hard to understand howthe fact of having succeeded in finishingher studies, even though she contractedother debts, could have caused her aninjustice. The basis of that submission

is far from clear. One might rather thinkthat the plaintiff's delay in asserting itsclaim gave the defendant a real

7/29/2019 February 14, 2011, Submi

February 14, 2011, Submission 2 for Second Court Hearing FC.104.09

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Transcript of February 14, 2011, Submission 2 for Second Court Hearing FC.104.09