Good day to you, the Motion before the court today is regarding several issues.

A. The Appellant is requesting The COURT OF APPEAL to determine pursuant to Rules 2.03, 2.04, 18.02, 18.03, 27.09, 39.01 and Rule 39.04 of the Rules of Court that the Affidavit of Defendant Betty Rose Danielski, Dated June 3, 2010, be struck out and or not considered by this Court.

B. The Appellant is requesting COURT OF APPEAL to determine in the alternative, pursuant to Rule 62.21 and 62.22 (d) of the New Brunswick Rules of Court, directions in a matter of procedure not provided for by the New Brunswick Rules of Court, as to how the appellant should proceed with respect to the Affidavit of Defendant Betty Rose Danielski, Dated: June 3, 2010 so that it be struck out and or not considered by this Court;

C. The Appellant is requesting COURT OF APPEAL to determine whether under Rule 62.24(1) and 62.24(1) (c) of the Rules of Court that the Respondent pay of costs of the within Motion and the costs of the Appeal forthwith for noncompliance with Rule 62.20 Filing and Service of Respondents Submission. Under that rule, the Respondent should have, according to: 62.20 Filing and Service of Respondents Submission Not later than the 20th day of the

month preceding the month in which an appeal is eligible to be heard, each respondent shall (b) serve a copy of the Respondents Submission upon each of the parties to the appeal Therefore not later than the 20th day of October, 2010, in preparation for the first
hearing of this matter, despite the following Respondent did not. Furthermore, under

rule, the Respondent should have, according to the Rules of Court Rule 62.20 (b) serve
a copy of the Respondents Submission upon the Appellant, not later than the 20th day of September, 2011, in preparation for this second hearing of the matter, despite the following Respondent did not.

D. The Appellant is requesting COURT OF APPEAL to determine (in light of circumstances) that the Awarding of Costs against the Respondent is appropriate.

The Appellant wished to be brief in the oral presentation today regarding this Motion presented for the Courts review and decision. The Appellant relies on the submitted written Brief as well as these furthered points deserving highlight. Affidavit 1. As is required by Rules of Court 18.02, 18.03, 39.01 including 39.04 prior to the

hearing of each of the two lower Trial Division Court Hearings of June 10, 2010 (Madam Justice Garnett) and February 14, 2011 (Madam Justice J. L. Clendening); the Defendant (in that matter) did not perform Court Document Process Service upon the Plaintiff, of significant substantive material, that being an Affidavit of Defendant Betty Rose Danielski, Dated June 3, 2010, moreover, Defendant following or accompanying as a consequence, did not request that the lower Court in the first instance, overlook this glaring irregularity of Court Document Process Service, which would have, for that reason, allowed the Learned Trial Judge (hearing the matter) to reasonably consider this subject Affidavit. This is a glaring oversight on the part of the Defendant to not, request the lower Court to make a Ruling thereby permitting the subject irregularity of Court Document Process Service.

2.

The Appellant brought the irregularity of service to the attention of the Trial

Division Court, in submissions to be used at the scheduled February 14, 2011 Hearing before Madam Justice J. L. Clendening.

3.

In Wright v. Czinege, 2008 BCSC 1292 (CanLII), Honourable Madam Justice

Humphries, regarding requirements for service, stated that requirements for service must be strictly adhered to; for that reason, service improperly effected is not service at all.
4. The Appellant (in this matter) was compelled by the Rules of Court, Rule 62.13 to prepare

an Appeal Book which contains, a copy of any affidavit evidence, specifically where applicable. Moreover, and to this point of where applicable the Appellant is of the view, that under any circumstances the subject Affidavit document and the allusion by the Respondent to content of

relative substance found therewithin is erroneous, therefore would always be and is for our

purposes immaterial, unimportant under the circumstances, furthermore, may not be

considered of any importance, moreover, that which was not served according to the Rules of Court.

5.

The Defendant did not perform or properly process Court document Service of the

subject Affidavit of Defendant Betty Rose Danielski, Dated June 3, 2010, as is required by the Rules of Court, despite having many opportunities to do so, especially in light of the fact, that this issue of insufficient Service was brought to the attention of the Respondent, (in the first instance) nevertheless the Respondent did nothing to remedy the discrepancy, therefore the Court should not consider the same Affidavit.

6.

Appellant Andr Murray believes that the Respondent abused the process of the

Court when the Respondent/ Defendant Betty Rose Danielski, included in a Respondents Appeal Book, the Affidavit of Defendant Betty Rose Danielski, Dated June 3, 2010 which Respondent had never attempted to process by Court Document Service, of same, upon the Appellant, therefore should not be included in the record.

Demonstrable history of non compliance with the Rules of Court

7.

Defendant subject of this matter has a history of non compliance with, Rules of

Court, Rule18.02, Rule 18.03, Rule 20.01, Rule 20.02, Rule 27.03, Rule 27.04, as they apply to the Lower Court, be that as it may, Respondent incidentally demonstrates disregard for Rule 62.20(b) as this Rule necessarily, for that reason, applies to the Honorable COURT OF APPEAL.

8.

The Appellant further requests of this Honorable COURT OF APPEAL an Order

pursuant to Rule 62.24(1) and 62.24(1)(c) of the Rules of Court for an order that requires the Respondent pay costs of the within Motion and the costs of the Appeal forthwith for non-compliance with Rule 62.20, Failure to Comply with Rule the Appellant has subsequently experienced unnecessary expense and a great deal of stress attempting to receive proper service of Respondents Submission according to Rules of Court.

9.

A copy of the Respondents Submission is required to be served upon the Appellant

according to the Rules of Court, 62.20 Filing and Service of Respondents Submission in

preparation for the first Appeal Hearing on this matter, the Respondent should have,
according to the Rules of Court 62.20 (b) served a copy of the Respondents Submission upon the Appellant, not later than the 20th day of October, 2010, but did not. Under that same rule 62.20 (b), in preparation for this second COURT OF APPEAL Hearing on this matter, the Respondent should have, according to the Rules of Court 62.20 (b) served a copy of the Respondents Submission upon the Appellant, not later than the 20th day of September, 2011, but has not.

10. Appellant Notes Respondent has not adhered to The Law Society of New Brunswicks Code of Professional Conduct, CHAPTER 15 Section 2 (iii), 2 (v), 2 (vii) and Section 4, consequently, the Appellant requests the Court to consider the following when
ruling as to costs of the within Motion and the costs of the Appeal.

11. Appellant Andr Murray did make this subject abundantly clear to Solicitor for Respondent within the very first e-mail correspondence to Solicitor Thomas Christie on Mon, Jun 7, 2010, that Andr Murray would only accept Process of Court documents involving Service thereof, only, according to the Rules of Court. The Rules of Court do not provide for service upon a non Solicitor by e-mail. Is it so much to ask, that the Solicitor for the Respondent adhere to the Rules of Court?

12. Appellant Andr Murray contends the Respondent has not yet served upon the Appellant a Certificate of Respondent (Form 62G) as is required by Rules of Court
62.10(2), therefore the Respondent may be deemed to have agreed with the Appellants Amended Certificate of Appellant.

13. The relevant Rules of Court are as follows:

62.10 Certificate or Agreement of Appellant and Respondent re Exhibits and Evidence (2) A respondent shall be deemed to have confirmed the Certificate of Appellant unless, within 15 days after service of the Certificate of Appellant, the respondent serves on the appellant a Certificate of Respondent (Form

62G).

14. Appellant Andr Murray verily believes to date the Respondent has not yet served upon the Appellant, a Respondents Appeal Book, further, to the Appellants knowledge, there are no Rules of Court regarding Serving a Respondents Appeal Book, in fact there is no Rules of Court regarding a Respondents Appeal Book, but it seems appropriate that same should be served.

15. If non adherence to the Rules of Court by the Respondent, were an isolated occurrence the Appellant would not be bringing this Motion to the Court attention, but this non adherence to the Rules of Court and shear volume of irregularities of Service is a continuing experience that requires this Courts Review and Decision on the matter.

Costs 16. The Appellant contends, that, it is has been, and remains, well established by the courts, that lay litigants may recover costs proportional (to lawyers), including counsel fees, which is clearly a trend, of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

17. As stated in Fong, et al v. Chan, et al, 1999, as a matter of principle, it seems difficult to justify a categorical rule on one hand encouraging cost recovery, alternatively, thereby (for same degree of meritorious efforts) denying self-represented litigants recovery of costs.

18. As stated previously in above in Fong, et al v. Chan, et al, 1999, supra, paragraph 22 modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. All three purposes are fostered by allowing the trial judge discretion to award costs to self-represented litigants.

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

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

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

22. Having considered the above, here within provided arguments for costs, this Honorable COURT OF APPEAL may find it appropriate to Order the Respondent to pay costs throughout, in addition to all reasonable disbursements. PART IV ORDERS SOUGHT I. Order pursuant to Rules 2.03, 2.04, 18.02, 18.03, 27.09, 39.01 and Rule 39.04 of the Rules of Court that the Affidavit of Defendant Betty Rose Danielski, Dated June 3, 2010 be struck out and or not considered by this Court.

II.

Order, pursuant to Rule 62.21 and 62.22 (d) of the New Brunswick Rules of Court, the Affidavit of Defendant Betty Rose Danielski, Dated June 3, 2010 so that it be struck out and or not considered by this Court;

III.

Under Rule 62.24 Failure to Comply with Rule and Rule 62.24(1) and 62.24(1) (c) of the Rules of Court for an order that the Respondent pay costs of the within Motion and the costs of the Appeal forthwith, for dilatory practice and noncompliance with Rule 62.20 Filing and Service of Respondents Submission.

IV.

Should this Honorable Court not find grounds sufficient to award the Appellant costs pursuant to the here within as Appellant above contended non-compliance and or for the evident dilatory practice by the Respondent contrary to Rule 62.20; 62.24(1) and 62.24(1) (c) In the alternative the Appellant seeks Orders that the Respondent shall pay costs of the within Motion.

V.

Such further and other relief as to this Honorable COURT OF APPEAL may appear just.