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, -andBETTY ROSE DANIELSKI Defendant, _____________________________________________________________________ The Plaintiffs Pre-Hearing Brief Rules of Court, Rule 38.06.1 Filed by the Self Represented Plaintiff Andr Murray _____________________________________________________________________

Andr Murray The Plaintiff 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Telephone Number: (506) 472 - 0205 E-mail address:

Solicitor for Defendant Defendant Betty Rose Danielski E. Thomas Christie, QC CHRISTIE LAW OFFICE

Betty Rose Danielski The Defendant Apt 603 166 Carlton Street Toronto, Ont. M5A 2K5

Andrmurraynow@ gmail.com

Suite 306, 212 Queen Street Fredericton, New Brunswick Canada E3B 1A8 Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

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

PAGE A. PART I INDEX _____________________________________________ii

B. PART II STATEMENT OF FACTS ____________________________ 1

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

C. PART III - ISSUES _____________________________________________ 6

{(b) a concise statement of the issues to be dealt with by the court,} {(c) a concise statement of the principles of law on which the party relies and citation of relevant statutory provisions and leading authorities, and}

1. Questions for the Court to answer ________________________________6 2. Introduction A. Should the Court grant a Continuance of the Mechanics Lien Claim?_______________________________________________________9 3. Granting the continuance _______________________________________11 4. Rule 1.03 Interpretation ________________________________________20 5. Rule 2.01 and 2.02 ____________________________________________28 6. B. Should the Defendant pay costs of the within Motion?______________31 7. The Defendants conduct ______________________________________ 36 8. Defendants questionable conduct history: _________________________ 36 9. Cost Orders in favor of self-represented litigants_____________________38

D. PART VI ORDERS SOUGHT __________________________________42

{(d) a concise statement of the relief sought by the party.}

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B PART II STATEMENT OF FACTS 1. Plaintiff Andr Murray did file on April 16, 2009 at 15:08 a FORM 2 CLAIM FOR LIEN, Dated April 16, 2009 at the York County Registry Office, New Brunswick.

2. Plaintiff Andr Murray did file with the Court of Queens Bench Trial Division of New Brunswick, all subsequent documents necessary to properly move the Mechanics Lien Claim forward, namely: NOTICE OF ACTION (FORM 16 B) F/C/104/09 Dated and Filed April 21, 2009 CERTIFICATE OF PENDING LITIGATION F/C/104/09 Dated and filed April 21, 2009 STATEMENT OF CLAIM (FORM 16C) Dated and filed May 20, 2009 AMENDED STATEMENT OF CLAIM (FORM 16C) August 21, 2009

3. 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)

4. The Plaintiff Andr Murray did cause the Service of the following here within below provided Documents on Defendant Betty Rose Danielski according to Rules of Court 16.08, 18.01(a), 18.02(1)(a) and 18.10(1) by commissioning the service of CANADIAN PROCESS SERVING INC, 509 157 Adelaide Street West, Toronto, ON M5H 4E7. CLAIM FOR LIEN, Dated April 16, 2009; CERTIFICATE OF PENDING LITIGATION Dated April 21, 2009; NOTICE OF ACTION (FORM 16 B) Dated April 21, 2009; STATEMENT OF CLAIM (FORM 16C) Dated May 20, 2009; AMENDED STATEMENT OF CLAIM (FORM 16C) Dated August 21, 2009.

5. On November 26, 2009, Solicitor E. Thomas Christie for Defendant 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).

6. 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).

7. 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 ).

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

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

10. 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.

11. 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 ).

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

13. On November 18, 2010, Plaintiff Andr Murray, received a copy of a letter, by facsimile, from the Office of Stewart McKelvey, on behalf of Solicitor representing 501376 N.B. Ltd., a body corporate, Solicitor Hugh J. Cameron acting Agent who had previously bid at auction, on behalf of 501376 N.B. Ltd., a body corporate, for the Marshall Street, City of Fredericton, Residential Duplex Property, PID No. 01548650 and PAN

506975 and subject of the request for Orders of Continuance according to the Mechanics Lien Act. currently being heard before this Honorable Court. The subject letter addressed to Andr Murray (Plaintiff in this matter, Defendant in that matter) stated as follows inter alia: .501376 N.B. Ltd. has no further interest in the property indentified as PID No. 01548650 and PAN 506975 and, in addition, neither I, nor Stewart McKelvey, have carriage of this matter or any involvement with respect to Court File No. M/C/0642/09. (Please see RECORD ON MOTION BOOK 2 TAB 37 ).

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

15. 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).

PART III - ISSUES

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

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

2. Introduction A. Should the Court grant a Continuance of the Mechanics Lien Claim?
{(c) a concise statement of the principles of law on which the party relies and citation of relevant statutory provisions and leading authorities, and}

16. 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 retrieve the necessary documents, so important to resolving this Action.

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

18. 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.

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

20. Alternatively granting the requested Order for or Continuance will 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 be compensated. This current unresolved situation is the result of circumstances the Defendant has set in motion, further, that the Defendant must now remunerate where remuneration is due. Settling ones obligations

should not require the Honorable Courts oversight. To date the Defendant has denied the Plaintiffs request of a Consent to Continuance of this Action unnecessarily prolonging settle of the respective matters therefore the Defendant has avoided genuine Remedy.

21. Please refer to the Maxim -Audi Alteram Partem -Latin; literally 'hear the other side'. The maxim means, in law, that no person shall be condemned, punished or have any property or legal right compromised by a court of law without having heard that person, the Plaintiff is requesting of the Defendant, to be heard on this matter. The Plaintiff believes that DISCOVERY will reveal all necessary to resolve the differences of opinion. A Order for a Continuance of the Mechanics' Lien Action pursuant to New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. Msection 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.

22. 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. 3 Granting the continuance 23. 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.

24. The Plaintiff contends that in any event, the matter remained alive within the one year time period, moreover the Plaintiff in order to meet the requirement established by Section 52.1(1)(b) of the Act did within the prescribed period of time according to the act, the Plaintiff did prior to the expiry of the one year time period,` appropriately file under Section 52.1(1)(b) of the Act. Accordingly, there can be no deemed discontinuance of the action since Section 52.1(1)(b) of the Act was complied with. As long as an application is made and notice of the application given to the

defendant within the one year for the commencement of the action timeline, Section 52.1 has been complied with. The provision does not go on to deal with deemed non-compliance in the event the action is not set down for trial by the expiration of the continuation period. It is the comprehension of the Plaintiff that is something to be dealt with in the Order of continuance. Such an Order could contain a provision that in the event the action is not set down for trial prior to the expiration of the continuation period, the action shall be deemed discontinued or shall be struck. But Section 52.1 contains no such provision nor do the Plaintiffs request for Consent to Orders of a Continuance in this case.

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

26. 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.

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27. 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.

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

29. The Plaintiff points to the Code of Professional Conduct, CHAPTER 15 (2)(iii), 15 (2) (vii) and 15 (4) of the Law Society of New Brunswick which appears to compel Solicitor for the Defendant to avoid taking advantage of slips, irregularities or mistakes on the part of the Plaintiff, not going to the merits, which does not involve a prejudice of the rights of the Defendant. Furthermore, the Solicitor for the Defendant should agree to reasonable requests according to the same principles of good faith and courtesy observed toward other lawyers, in this case towards the Self Represented Litigant Plaintiff, a layperson lawfully requesting a Order be granted for Continuance of the subject Action as stated here within and throughout. 4 Rule 1.03 Interpretation

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

31. Rule 1.02, of the New Brunswick Rules of Court is reproduced as follows: CITATION, APPLICATION AND INTERPRETATION 1.02 Application These rules apply to all proceedings in the Court of Queens Bench and the Court of Appeal unless some other procedure is provided under an Act. 32. 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:

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CITATION, APPLICATION AND INTERPRETATION 1.03 Interpretation 1.03 (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 33. The Plaintiff respectfully requests that the Honorable Court keep with the general direction expressed in the New Brunswick Rules of court, Rule 1.03(2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits, by taking into consideration the prejudice caused against the Plaintiff, if the Honorable Court does not grant the Plaintiffs requested Orders for Continuance of the here within mentioned Mechanics Lien Action, consequently the Plaintiff would be unable to pursue remedy through DISCOVERY and or should it have become necessary obtain a Rulings and or a Decision rendered by the Honorable Courts on contentious unresolved matters inter alia. Reference: Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) The Honourable Justice Richard stated the following regarding the criteria for extending time. (Please see paragraph 18) at the following address: http://www.canlii.org/en/nb/nbca/doc/2010/2010nbca55/2010nbca55.ht ml 34. 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

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done in the particular case may be relatively similar to existing prerequisites for this Court to grant a Order for Continuance as requested.

35. The Plaintiffs position is that justice will be best served by granting 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). Reference: Novotny v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14762 (F.C.) MR. JOHN A. HARGRAVE, PROTHONOTARY, stated the test for an extension of time. (Please see at paragraphs 2 6) at the following address: http://www.canlii.org/en/ca/fct/doc/2000/2000canlii14762/2000canlii1 4762.html 36. 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 of Employment and Immigration (1986), 63 N.R. 106 (F.C.A.) is well known: 1) an applicant must show that there was some justification for the delay throughout the whole period of the delay. 37. 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

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Division Judicial District of Moncton thereof consequently granting Orders as requested by the Plaintiffs in that matter to evict Tenant Andre Murray forthwith. Incidentally Tenant Andre Murray was evicted as hrewithin above mentioned on a Order using words such as forthwith. Tenant Andre Murray was indeed evicted in a forthwith manner without prior notice occurring October 23, 2009. Please note: Conversion of Tenant Andre Murrays (Plaintiff in this matter) property has occurred as Andre Murray was not permitted at the October 23, 2009 eviction to remove any possessions from the premises from which the Plaintiff Andre Murray contends all contractual documentation et al substantive material necessary for the plaintiff in this matter to experience the full advantages and opportunities presented by DISCOVERY as provided according to the Mechanics Lien Act. May this please the Honorable Court the Plaintiff in an attempt to retrieve the here within above mentioned documents indispensable to the Plaintiffs successful DISCOVERY subsequently and without delay the Plaintiff did file a Notice of Motion to Rescind the October 20, 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.

38. 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.

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The test for an extension of time, as set out in Grewal v. Minister of Employment and Immigration (1986), 63 N.R. 106 (F.C.A.) is well known: 2) and that he has an arguable case. 39. In response to the second part of the above referenced test, Grewal, supra, at 116, the Plaintiff has presented a case replete with argument regarding the Plaintiffs fulfillment of the time requirements and adherence to the Rules of Court as found in the Plaintiffs Submission filed with Court Client Services in June, 2009.

40. Furthermore: in Grewal v. Minister of Employment and Immigration (1986), 63 N.R. 106 (F.C.A.) There are three additional factors which come into play in this instance. First, there is the underlying consideration of doing justice between the parties (Grewal, supra, at 110). 41. Merriam Webster Online Dictionary defines fair as an action marked by impartiality and honesty. It involves acting without prejudice, favoritism or self interest. Fairness is then a cardinal principal that a civilized society should advocate.

42. 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.

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43. 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 Plaintiffs Mechanics' Lien action pursuant to Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b), the technicality of a prescribed time limit, can easily be cured by granting of the requested Continuance. 44. Please refer to the Maxim -Audi Alteram Partem -Latin; literally 'hear 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 and fair manner. Common law, addresses this need to control the arbitrary exercise of powers through application of the principles of natural justice to the exercise of such powers. The decision of this Honorable Court should be in accord with the principles of natural justice.

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

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Second, a compelling explanation for delay may result in a time extension where the arguable case is weak, and vice versa (Grewal, supra, at 116). 46. Similarly to what was stated above in Novotny v. Canada, 2000, supra, the Plaintiff Andre Murray took reasonable steps to seek advice and attempt to retain counsel regarding the decision of Honorable Court in the issuing of the Order of October 20, 2009. At no time did the Plaintiff abandon his intention to seek a setting aside of the impugned Order, nor in light of the circumstances, was the Defendant guilty of any inappropriate or unreasonable delay in bringing the within motion to Rescind the impugned Moncton Order of October 20, 2009. Further, Plaintiff Andre Murray took all known reasonable steps in an attempt to regain the Subject Contract documents, but the efforts where frustrated, by opposing Council (in the Moncton Court), which made retrieval of the subject documents impossible because of a standing Court Order of October 20, 2009.

47. Lastly, the third part of the previously mentioned three additional factors found within Grewal, supra, at 116, which come into play, may it please the Honorable Court the following excerpt: Third, there must be material before the Court upon which the Court can be satisfied both as to an explanation for the delay and that the case is an arguable one (Consumers" Association of Canada v. Ontario Hydro [No. 2] [1974] F.C. 460 (F.C.A.) at 463, as referred to in Grewal, supra, at 110). 48. The Defendant has filed voluminous material for the Court to consider regarding both as to an explanation for the delay and that this matter before the Honorable Court is an arguable one, please refer to Tab 29 of the Plaintiffs Record on Motion Book 1.

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

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

51. The Plaintiff, requests that this Honorable Court keep with the general direction contained in the New Brunswick Rules of Court; Rule 1.03(2). to secure a fair, just and balanced determination, based on the MERITS. Reference: Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Justice H. H. McLellan stated his view regarding the discretion of the Trial Judge and also his view that the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits. (Please see at page 9 to page 17). found at the following address:

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http://www.canlii.org/en/nb/nbqb/doc/1995/1995canlii6205/1995canlii 6205.html 52. The Plaintiff on the grounds as stated found in Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) inter alia requests that the Court favor substance over form in this matter regarding the requested Continuance to overcome the technical time limitations, of the Mechanics Lien Act. Reference: Western Surety Co. v. National Bank of Canada, 2001 NBCA 15 (CanLII) J. ERNEST DRAPEAU, J.A.. regarding application of Rule 2.02 (Please see at paragraph 91) at the following address: http://www.canlii.org/en/nb/nbca/doc/2001/2001nbca15/2001nbca15.ht ml 53. In Western Surety Co. v. National Bank of Canada, 2001 NBCA 15 (CanLII) J. ERNEST DRAPEAU, J.A. stated the following regarding application of Rule 2.02 (Please find at paragraph 91) as follows: [91] Rule 2.02 of the Rules of Court enjoins courts to overlook procedural errors and to take appropriate measures to secure the just determination of the matters in dispute between the parties.

5 Rule 2.01 and 2.02 Reference: In Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB C.A.) Justice TURNBULL, J.A. stated the following regarding the application of Rule 2.01 (Please see beginning at the end of page 6 through to page 8) at the following: http://www.canlii.org/en/nb/nbca/doc/1995/1995canlii6225/1995canlii6 225.html

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54. 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".

55. 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.

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

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should they be used to preclude the enforcement of claims which are derived from the substantive law. Reference: In LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) RIDEOUT, J. stated regarding applying Rule Rules 1.03(2); 2.02; 3.02(1) and (2) (Please see at paragraph 11 to 19) at the following address: http://www.canlii.org/en/nb/nbqb/doc/2005/2005nbqb142/2005nbqb14 2.html 57. As found provided above, in LeBlanc v. Bastarache, supra, the Honorable Court must consider: what is necessary to see that justice is done? The answer may be, if the refusal to grant the Plaintiffs request for Orders of a Continuance of the subject Action would do an obvious and substantial injustice to the Plaintiff, while to permit it is not going to cause any substantial injustice to the Defendant or prejudice the Defendant's defence, then the requested Continuance may be granted.

58. The rule which emerges from these cases unequivocally recognizes that the Court's main concern must be to see that justice is done and to make certain that the requested Orders of a Continuance (as in this case) does not prejudice or work any injustice to either of the parties Reference: In East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003 NBQB 268 (CanLII) Justice RIORDON, J. stated the following regarding Rule 1.03, Rule 2.02,. and Rule 1.03(2): (Please see at paragraph 25 28) at the following address: http://www.canlii.org/en/nb/nbqb/doc/2003/2003nbqb268/2003nbqb26 8.html

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

60. The Plaintiff contends that as provided above, in East Texas Distributing Inc. v. Video Solutions, supra, this is a situation where this Honorable Court must and should apply Rule 1.03 and Rule 2.02. Furthermore, as above Rule 1.03(2) says: These rules shall be liberally construed to secure the just, and I emphasize just, determination of every proceeding on its merits. It also goes on to say least expensive and most expeditious determination. Rule 2.02 clearly sets out the effect of non-compliance with the Rule . A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, As in the case before this Court, where the Plaintiff Andre Murray finds himself challenged by time limitations as prescribed by the Mechanics Lien Act, which, can be cured by the granting of a Continuance, so that this matter may be heard on its merits. Reference: In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A. LaVIGNE stated the following regarding granting an extension of time.; (Please see at paragraph 15 42), at the following URL: as follows: http://www.canlii.org/en/nb/nbqb/doc/2003/2003nbqb454/2003nbqb45 4.html 61. As stated above, in Agnew v. Knowlton, supra, the Plaintiff comprehends that each case should be considered in the light of its own peculiar

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circumstances and this Honorable Court, in the exercise of its judicial discretion, should be determined to see that justice is done. The interest of justice calls for a granting of the Continuance. The test which applies to the case before the Court now is as follows: If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. 62. Though above mentioned Case is focused on granting a extension of time to serve a Notice of Action and Statement of Claim the principle still applies, regarding the granting of a Continuance as follows: 1) refusal to grant the Continuance would do an obvious and substantial injustice to the moving party, 63. To ensure that justice is done in this matter before the Honorable Court the Continuance as must be granted as requested, otherwise the Plaintiff will not be able to proceed to DISCOVERY and or if necessary have the matter heard before the Honorable Court. For the Honorable Court to disallow the Continuance as requested based, on a technicality, which can be procedurally cured by application of the Court discretion pursuant to the Mechanics Lien Act, Moreover, Rule of Court 1.03(2) provides that this Court should apply the Rules so as to secure a just, least expensive and most expeditious determination of every proceeding on its merits. Substantial injustice will occur if the Plaintiff does not receive a determination of the Mechanics Lien Act, Action before the Court on its merits.

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2) while to permit it is not going to work any substantial injustice to the respondent or prejudice the respondent 's defence, 64. The Defendant Betty Rose Danielski current Title holder of subject Property, as identified in this mechanics Lien Action as the subject property has not yet been sold, and remains in the Defendants name. The Granting of the Orders for a Continuance will not work any substantial injustice to the Defendant or prejudice the Defendant 's defence.

65. As stated in Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.) by Justice LASKIN J.A. at paragraph 16, as follows: [16] Third, prejudice that will defeat an extension of time for service must be caused by the delay. Prejudice to the defence that exists whether or not service is delayed ordinarily is not relevant on a motion to extend the time for service. 66. In interest of justice, as above then the writ should be renewed, in this case the Continuance should be granted, that the Parties to this Action may DISCOVER each other. DISCOVERY is expected by the Plaintiff in this matter to be significant and preclude any intentions to pursue this matter any further through Court of Queens Bench.

Reference: in Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII) Justice Benjamin B. Taylor stated the following regarding the law for extending the time for service: (Please see at paragraph 32 38) at the following address:

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http://www.canlii.org/en/pe/pesctd/doc/2006/2006pesctd52/2006pesctd 52.html

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

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

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

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

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

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

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Honorable Justice Benjamin B. Taylor decision that granting the requested Continuance is most appropriate.

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

70. As quoted above, In Chiarelli v. Wiens 2000 CanLII 3904 (ON C.A.), (2000), 46 O.R.(3d) 780 (C.A.), Laskin J.A., in writing for a unanimous court, found at paragraph 9, stated the law as follows: [9] As Lacourciere J.A. said in Laurin v. Foldesi (1979), 23 O.R. (2d) 331 (C.A.): The basic consideration . . . is whether the [extension of time for service] will advance the just resolution of the dispute, without prejudice or unfairness to the parties.

71. The Law Society of New Brunswick Code of Professional Conduct, CHAPTER 15 (4) states: the lawyer shall not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of another lawyer not going to the merits or involving a sacrifice or prejudice of the rights of the client. Furthermore, CHAPTER 15 (2)(iii) states The lawyer shall agree to reasonable requests by another lawyer for an extension of time, the waiver of a procedural formality and other similar

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accommodations as long as the position of the client of the lawyer will not be prejudiced materially by agreeing to the accommodation. And (vii) The lawyer shall practise the same principles of good faith and courtesy toward laypersons lawfully representing themselves or others in a matter as the lawyer is required to observe toward other lawyers.

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

6 B. Should the Defendant pay costs of the within Motion? 73. Plaintiff Andr Murray has requested consent of the Defendant in the matter of a Continuance of the Plaintiffs Mechanics Lien Action four separate occasions. The Defendant each and every time has either replied stating the position of the Defendant as negative on two occasions two other occasions no response. Please note the Plaintiff has attempted to make the subject request for consent to a Continuance justifiable to the Defendant by providing just and sufficient cause. Included within the correspondence sent to the Defendant requesting a consent was an explanation as to the procedure and the ramifications thereof. Nevertheless the Solicitor for the Defendant continued to return correspondence of a negative response nature. Despite the Defendant having received reasonable justification for the Plaintiffs request for the Defendants consent to Continuance litigation continued to be pursued by the Defendant

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to no avail. A great deal of wasted time and financial loss has occurred because the Defendant refuses to cooperate on each and every occasion, the opportunity presents itself. The Plaintiff does not comprehend that the Defendant Betty Rose Danielski is genuinely in pursuit of remedy or else the Defendant is ill advised. However, the Plaintiff s position on the matter of Costs should reflect the Defendants lack of cooperation and the /Defendants avoidance and or attempts to circumvent the DISCOVERY process in favor of frivolous litigious proceedings. The Plaintiff requests of this Honorable Court Costs be awarded against the Defendant on a Solicitor Client basis and or significant in volume to effect a strong deterrent against such behavior. 1. Please see provided copy of a Letter found at RECORD ON MOTION BOOK 1 TAB 33 -. A letter requesting Consent to a Continuance was served on Solicitor for Defendant Betty Rose Danielski, E. Thomas Christie, on May 31, 2010. 2. Please see provided copy of a Letter found at RECORD ON MOTION BOOK 2 TAB 39. -Exhibit V. A letter Dated November, 22nd, 2010, Letter requesting that the Defendant consent to a Continuance of the subject Action pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act. 3. Please see provided copy of a Letter found at RECORD ON MOTION BOOK 2 TAB 40. -Exhibit X. Copy of Letter #2 to Solicitor Thomas Christie, Dated 22nd day of November, 2010, requesting that the Defendant consent to a Continuance of the subject Action pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act. 4. Please see provided copy of a Letter found at RECORD ON MOTION BOOK 2 TAB 42 -Exhibit Y. Copy of Letter Dated 23rd day of November, 2010, requesting that the Defendant consent to a Continuance of the subject Action pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act

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

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

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

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

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7 The Defendants conduct 77. The Defendant on the Other Hand has refused to consent to a Continuance of the subject Mechanics' Lien Action, though offered sufficiently reasonable justification by the Plaintiff on each of the multiple occasions. Therefore, forcing the Plaintiff and the Solicitor for the Defendant to engage in otherwise unnecessary Court litigation and the relative document preparation associated with same evidently a costly preparation for each of the to date three absolutely unnecessary Court hearings and now this Motion for a Continuance of the mechanics Lien Action, the fourth Court litigation redundantly unnecessary had the Defendant consented in the first place to a Continuance of the Plaintiffs subject Mechanics Lien Action.

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

79. The Rules of Court Rule 2.02 provides that A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding,

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

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

81. The Plaintiff comprehends the Solicitor for the Defendant, regarding not advising his client to consent to a Continuance, (when requested by the Plaintiff) Defendants consent to a Continuance would have advanced the just resolution of the dispute, without prejudice or unfairness to the parties and consequently be in accordance with the Law Society of New

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Brunswick Code of Professional Conduct, instead the opposite has occurred therefore causing unnecessary delay and expense Court litigation.

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

83. Accordingly, one would expect the same principles of good faith and courtesy should be extended to a self represented litigant; further, which are eagerly exchanged between members of the Bar. In this case the circumstances immediately appear self evident, to any reasonable person, that since the Plaintiff has been denied access to all documentation necessary for a proper discovery, (according to the Mechanics Lien Act schedule) the subject request of a Court Order for a Continuance, that the documents may be retrieved is abundantly reasonable. The position of the Defendant would not have been materially prejudiced by the Defendant agreeing to the requested Continuance. Reference: In, Blanger v. Roussel, 2006 NBCA 2 (CanLII) Chief Justice Drapeau C.J.N.B. stated the following regarding ruling on an application under Rule 62.24(1); ( at paragraph 6) url link is provided below:: http://www.canlii.org/en/nb/nbca/doc/2006/2006nbca2/2006nbca2.html

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

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

86. The Plaintiff should not be placed in a position of having to chase the Defendants Solicitor to receive documents that the Rules of Court compel the Respondents Solicitor to serve upon the Plaintiff according to the Rules of Court.

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87. Furthermore, all parties to any Court action must be able to rely upon the Code of Professional Conduct as established by the Law Society of New Brunswick. It is in the interest of the Solicitor for the Defendant to reply to all correspondence reasonably requiring a response. Reference: In Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.) Justice Deschnes, J.A. makes such other order as may be just pursuant to Rule 62.24(1)(c) of the Rules of Court; (may it please the Court; at paragraph 2) url link is provided below:: http://www.canlii.org/en/nb/nbca/doc/2003/2003canlii26208/2003canlii 26208.html 88. In Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.) Justice Deschnes, J.A. such other order as may be just pursuant to Rule 62.24(1)(c) of the Rules of Court at paragraph 2 as follows: [2] The Notice of Perfected Appeal, dated February 21, 2003 is struck out, pursuant to Rule 62.24(1)(c) of the Rules of Court. The Registrar shall issue a Notice of Perfected Appeal when the Appellant files the documents required in accordance with the Rules of Court.

89. As stated in Charlebois v. Saint John, the Plaintiff requests that this Court make such other order as may be just in reflection of the following history demonstrated by the egregious behavior of the Defendants Solicitor. The rule of Agent and Principle continue to apply. Reference: In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The Honorable Chief Justice J. Ernest Drapeau regarding Rule 62.24(1) did take a position on this matter finally awarding costs to a selfrepresented appellant; (may it please the Court; beginning at page 1 until and including page 3)url link is provided below::

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http://www.canlii.org/en/nb/nbca/doc/2003/2003nbca79/2003nbca79.ht ml 90. As referenced in Michaud v. Robertson, supra, is an example of an occasion, the Court found it appropriate to award the self-represented Appellant an order of costs against the moving parties.

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

92. The history of the questionable professional conduct of the Solicitor for the Defendant (in this matter) as it relates to the Plaintiff is as follows: 8 Defendants questionable conduct history: 93. In the Matter regarding non adherence to the Rules of Court as it pertains to Court File Number: FC 104 09, Andre Murray v. Betty Rose Danielski, the Defendant Betty Rose Danieslki likewise, her Solicitor appear to share a strong and continued inclination to indulge in dilatory practice of a serious enough nature deserving of sanction by this Honorable Court. Plaintiff Andre Murray alleges that Betty Rose Danielski has evaded Service attempts by not responding to the Plaintiffs attempts at Service, to the last know place of residence of the Defendant, Betty Rose Danielski, in Toronto Ontario, according to Rules of Court 27.03, Service of Pleadings and pursuant to Rules of Court, 18.03. Please note: Plaintiff Andre Murray was forced to commission a professional process server as all other means of service had been exhausted, further, as it became evident to Plaintiff Andre Murray that Betty Rose Danielski was avoiding service

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94. The Plaintiff has noted that the Defendant has: Not replied to email correspondence; Not replied to facsimile correspondence; Not replied to when Served; Insisted that the Plaintiff must provide documents when this was not the case; Did not Serve the Plaintiffs documents according to the rules of Court;

95. 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 Defendants NOTICE OF INTENT TO DEFEND (FORM 20A), Dated November 26, 2009, but failed to Court Document Process Service of same document as is required by the Rules of Court, Rule 20.01, Rules of Court, Rule 20.02(1) and Rules of Court, Rule 20.02(2).

96. On November 26, 2009, Solicitor E. Thomas Christie for Defendant 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 same document upon the Plaintiff as is required by the Rules of Court, Rule 27.08(3).

97. Solicitor E. Thomas Christie for Defendant Betty Rose Danielski, has not to date (Plaintiff Andre Murray searched the file on Wednesday, February

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9, 2011) filed with the Court of Queens Bench Trial Division, Judicial District of Fredericton, a Statement of Defense, as required to by the Rules of Court Rule2 7.04(2) and 20.02(b).

98. Provided below are the Rules of Court which the Defendant has not adhered to date: Rules of Court Rule 18.02 Rules of Court Rule 20.01 Rules of Court Rule 20.02 Rules of Court Rule 27.01 Rules of Court Rule 27.03 Rules of Court Rule 27.04 Rules of Court Rule 27.08

99. Costs are a useful tool of the Court to encourage settlements or to discourage or sanction inappropriate behavior, such as the consistent and flagrant behavior of the Defendant, as indicated above. The Plaintiff encourages the Court to take note and appropriately Order Costs against the Defendant in this matter. To not mark the Courts disapproval of this type of conduct, by not awarding costs in the Plaintiffs favor, sets a negative standard that others may follow and sends the wrong message, regarding conduct at Court. 9 Cost Orders in favor of self-represented litigants Reference: McNichol v. Co-operators General Insurance Company, 2006 NBCA 54 (CanLII), Chief Justice J. ERNEST DRAPEAU, addresses cost orders in favor of self-represented Litigants. (Please see below, at paragraph 41 through to and including paragraph 45), at the following URL:

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

100.

As stated by Chief Justice J. ERNEST DRAPEAU above in McNichol

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

101.

The Plaintiff argues that after due consideration, this Honorable Court

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

102.

As similarly stated above in McNichol v. Co-operators General

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

103.

Following the lead of the above quoted Court Decision, McNichol v.

Co-operators General Insurance Company, 2006, supra, this Honorable

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Court may find it appropriate to Order the Defendant to pay costs throughout, which may be similarly fixed at $5,000, in addition to all reasonable disbursements. Reference: Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) Justice Robert J. Sharpe J.A stated as follows regarding the right of self-represented lay litigants to recover Costs. (Please see below, from paragraph 15 though to and including paragraph 27), at the following URL: http://www.canlii.org/en/on/onca/doc/1999/1999canlii2052/1999canlii2 052.html 104. As stated in Fong, et al v. Chan, et al, 1999, supra, Costs should only

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

105.

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

lay litigants may recover costs, including counsel fees, which is a clear trend of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

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106.

As stated above in Fong, et al v. Chan, et al, 1999, supra, as a matter of

principle, it seems difficult to justify a categorical rule denying recovery of costs by self-represented litigants.

107.

As stated above in above in Fong, et al v. Chan, et al, 1999, supra,

paragraph 22 modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. All three purposes are fostered by allowing the trial judge discretion to award costs to self-represented litigants. 108. 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 selfrepresented litigants, such as the Plaintiff in this matter before this Honorable Court.

109.

The self-represented litigants must possess skills for which they

customarily are remunerated on the regular work week basis, and if the law is prepared to compensate lawyers for loss of time when devoting their efforts to their own cause, the same entitlement should extend to selfrepresented lay litigants who are able to demonstrate the same loss.

110.

Costs may be awarded to those lay litigants who can demonstrate that

they devoted time and effort to do the work ordinarily done by a lawyer therefore, retained to conduct the litigation, further, that as a result, they

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incurred according to opportunity cost rationale costs by foregoing remunerative activity, additionally useful Costs are a useful tool of the Court to encourage settlements or to discourage or sanction inappropriate behavior.

111.

The trial judge is particularly well-placed to assess the appropriate

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

112.

Having considered the above here within provided arguments for costs,

this Honorable Court may find it appropriate to Order the Defendant to pay costs throughout, in addition to all reasonable disbursements. PART VI ORDERS SOUGHT
{(d) a concise statement of the relief sought by the party.}

1. That, pursuant to section 52.1 (1) (b) of the Mechanics Lien Act, this action be continued until .. or further Order of this Court, 2. Removed 3. That the Defendant pay costs of the within Motion, 4. Such further and other relief as to this Honorable Court may appear just. ALL OF THIS respectfully submitted this February 14, 2011.

____________________ Plaintiff Andr Murray

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