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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, -andBETTY ROSE DANIELSKI Defendant, _____________________________________________________________________ The Plaintiffs Submission 2 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 Submission 2

PAGE A. PART I INDEX _____________________________________________ii

B. PART II STATEMENT OF FACTS ____________________________ 0 C. PART III - ISSUES _____________________________________________ 8

1. Questions for the Court to answer ________________________________8 2. Introduction _________________________________________________9 3. A. Should the Court grant a Continuance of the Mechanics Lien Claim?__11 4. Granting the continuance _______________________________________11 5. Rule 1.03 Interpretation ________________________________________14 6. Rule 2.01 and 2.02 ____________________________________________39 7. B. Should the Defendant pay costs of the within Motion?______________69 8. The Defendants conduct ______________________________________ 71 9. Defendants questionable conduct history: _________________________ 83 10. Cost Orders in favor of self-represented litigants____________________100

D. PART VI ORDERS SOUGHT __________________________________112 E. SCHEDULE A LIST OF AUTHORITIES _____________________112

F. 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) ______________127 2. 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 ii

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.)__169 6. LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) ___________________182 7. East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003 NBQB 268 (CanLII) __________________________________________195 8. Agnew v. Knowlton, 2003 NBQB 454 (CanLII)_____________________206 9. Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.)____________________220 10. Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII) _______235 11. Blanger v. Roussel, 2006 NBCA 2 (CanLII) _______________________254 12. Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.)_______260 13. Michaud v. Robertson, 2003 NBCA 79 (CanLII)_____________________263 14. Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) _______________269

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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. 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,

2009, 13:22 hours therefore occurring within and complying with a ninety day time limit established for filing of same according to Section 27 of the 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. 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) ( see RECORD ON MOTION BOOK 1 TAB

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 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.

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 Defendant Betty Rose Danielski with the following documents:

a. b. c. d. e.

Claim for Lien Certificate of Pending Litigation Notice of Action Statement of Claim 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 verbal acknowledgement. 10. The above mentioned AFFIDAVIT OF SERVICE, Dated the 9th day of November, 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) Dated August 21, 2009.

12. UPS package Service, Express Saver, Billed Charge $20.53, tracking number was E8386887925, Sender A MURRAY, FREDERICTON NB

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).

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

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 Plaintiff according 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

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 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 ). 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

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).

C PART 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.

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 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. 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

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 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. 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. 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. 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. 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

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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 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.

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 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.

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 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. 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 3738 as follow: PREJUDICE prejudice,n.1. Damage or detriment to one's legal rights or claims. See dismissal with prejudice, dismissal without prejudice under DISMISSAL. legal prejudice. A condition that, if shown by a party, will usu. defeat the opposing party's action; esp., a condition that, if shown by the defendant, will defeat a plaintiff's motion to dismiss a case without prejudice. The defendant may show that dismissal will deprive the defendant of a substantive property right or preclude the defendant from raising a defense that will be unavailable or endangered in a second suit. [Cases: Federal Civil Procedure 1700; Pretrial Procedure 510. C.J.S. Dismissal and Nonsuit 2427.] undue prejudice. The harm resulting from a fact-trier's being exposed to evidence that is persuasive but inadmissible (such as evidence of prior criminal conduct) or that so arouses the emotions that calm and logical reasoning is abandoned. 2. A preconceived judgment formed without a factual basis; a strong bias. [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) The Honourable 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 have required an extension of time to serve the pleading. The criteria for extending time have been addressed in several decisions of this Court. It is concisely stated in Bulmer-Woodard v. Bulmer 2006 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 an application to extend a time limit is the need "to do justice in each particular case": see Atlantic Pressure Treating Ltd. v. Bay Chaleur Construction (1981) Ltd. reflex, (1987), 81 N.B.R. (2d) 165 (C.A.), [1987] N.B.J. No. 528 (C.A.) (QL) per Ryan J.A. at para. 7. In Naderi v. Strong 2005 NBCA 10 (CanLII), (2005), 280 N.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 case requires a balancing of the prejudice to both parties resulting from the decision to grant or refuse the extension of time. An intention to appeal within the time prescribed and any explanation given by the proposed appellant for missing the limitation period are factors to be considered together with any evidence of actual prejudice the delay would cause to the other party. Equally important to the equation is the determination of whether or not there is a serious issue to be appealed [...] as opposed to the matter being

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frivolous or vexatious, or, stated differently, whether or not there is an arguable case for consideration by the Court: see Duke v. B.L.E., [1989] N.B.J. No. 716 (C.A.) (QL) per Stratton, C.J.N.B. and Doug'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 relevant factors will enable an application judge to ensure that justice is done in the particular case. [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. Minister of 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, in Beilin v. Minister of Employment and Immigration reflex, (1995), 88 F.T.R. 132 at 134, stands for the proposition that "as the condition for obtaining such an extension of time an applicant must show that there was some justification for the delay throughout the whole period of the delay and that he has an arguable case...". [3] While the elements required by Grewal in seeking an extension of time are, as I say, well known, and indeed Grewal is referred to in the Respondent"s material, too often counsel do not take seriously the necessity for clearly establishing, in their material in support of the motion for a time extension, that there is an arguable case. [4] The factors to consider in an application for an extension are, to a great degree, open-ended: see for example Noel & Lewis Holdings Ltd. and Warky v. Canada reflex, (1986), 5 F.T.R. 166 at pages 168 and 169 and Karon Resources Inc. v. Minister of National Revenue reflex, (1994), 71 F.T.R. 232 at 235-236. 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). 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). 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). [5] In the present instance at issue are delay, whether there is an arguable case and prejudice to both Applicants and Respondent. The delay before the Respondent attempted to file the memorandum of argument was minimal and, as I have noted, it was the result of a misreading of a calendar. This was an unfortunate oversight, but in this instance it is not fatal. Here I would acknowledge that counsel for the Applicants pleads the monetary hardship and prejudice to his clients as a result of the filing oversight: that is unfortunate, but it can always be rectified 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 Chief Justice Jackett said in Consumers" Association of Canada (supra) at page 463, an extension of time depends upon the Court having before it material from which it can satisfy itself that there is an arguable case for setting aside the order or decision in question. In this instance there is 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 a party With regard to the prejudice to the applicant, I think it may be assumed that the applicant will be prejudiced if he is denied the right to put forward his case. If, however, the applicant does not have a case, he cannot be prejudiced if an extension of time is denied. Here the applicant has tendered no evidence of an arguable case. There is therefore, no evidence of the existence of an arguable case which he is being denied the right to put forward. There is therefore no evidence of any prejudice to the applicant. [page 201] This leads back to the concept of the underlying consideration of doing justice between the parties, a factor in Grewal. While the result, a denial of the time extension, may be unfortunate, there is no injustice where 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 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.

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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 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.

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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 of Employment 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 at Page 4775

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UNJUST unjust, 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.merriamwebster.com/dictionary/fair Main Entry: 1fair Pronunciation: \ fer\ Function: adjective Etymology: Middle English fager, fair, from Old English fger; akin to Old High German fagar beautiful Date: before 12th century 6 a : marked by impartiality and honesty : free from self-interest, prejudice, or favoritism <a very fair person to do business with> b (1) : conforming with the established rules : allowed (2) : consonant with merit or importance : due <a fair share> c : open to legitimate pursuit, attack, or ridicule <fair game> 56. Black's Law Dictionary (8th ed. 2004), defines fair, at Page 1788 as follows: FAIR fair,adj.1. Impartial; just; equitable; disinterested <everyone thought that Judge Jones was fair> .2. Free of bias or prejudice <in jury selection, the lawyers tried to select a fair and impartial jury>. 57. 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.

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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 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. 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 and fair 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 Law that no person should be condemned unheard; it is akin to due process. The notion that an individual, whose life, liberty, or property are in legal jeopardy, has the right to confront the evidence against him or her in a fair hearing is one of the fundamental principles of Constitutional Law 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" (Audi alteram partem) otherwise put "Reasonable opportunity must be given to each party, to present his side of the case". The legal effect of a breach of natural justice is normally to stop the proceedings and render any judgment invalid; it should be quashed 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 of law 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, by which a man is to be deprived of any part of his property, without having an opportunity of being heard." A principle of natural justice which prohibits a judicial decision which impacts upon individual rights without giving all parties in the dispute a right to be heard. Habeas corpus was an early expression of the audi alteram partem principle. In more recent years, it has been extended to include the right to receive notice of a hearing and to be given an opportunity to be represented 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 insistently through the centuries, is now a command, spoken with the voice of the due 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 a legal 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 be entailed ... "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 inconvenience in 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 life and death?" REFERENCES:

Caritativo v People of State of California 357 US 549 (1958) Chapel v Child 2 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 partem From Wikipedia, the free encyclopedia Audi alteram partem (or audiatur et altera pars) is a Latin phrase that means, literally, hear the other side.[1] It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against him.[2] "Audi alteram partem" is considered a principle of fundamental justice or equity in most legal systems. The principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party, to summon one's own witnesses and to present evidence, and to have counsel, if necessary at public expense, in order to make one's case properly. [edit] History of use As a general principle of rationality in reaching conclusions in disputed matters, "Hear both sides" was treated as part of common wisdom by the ancient Greek dramatists.[3]

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The principle was referred to by the International Court of Justice in the Nuclear Tests case, referring to France's non-appearance at judgment.[4] Today, legal systems differ on whether individuals can be convicted in absentia.

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 time extension 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 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.

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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 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). 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 before the 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; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, esp. of procedure <trial on the merits>.

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2.EQUITY(3) <on questions of euthanasia, the Supreme Court has begun to concern itself with the merits as well as the law>. 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 as follows: CONSTRUE construe (k<<schwa>>n-stroo), vb. To analyze and explain the meaning of (a sentence or passage) <the court construed the language of the statute>. Black's Law Dictionary (8th ed. 2004) at Page 2526 defines Just as follows: JUST just, adj. Legally right; lawful; equitable 72. 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). 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: 1merit Pronunciation: \?mer_?t, ?me_r?t\ Function: noun 1 a obsolete : reward or punishment due b : the qualities or actions that constitute the basis of one's deserts c : a praiseworthy quality : virtue d : character or conduct deserving reward, honor, or esteem; also : achievement 2 : spiritual credit held to be earned by performance of righteous acts and to ensure future benefits 3 a plural : the substance of a legal case apart from matters of jurisdiction, procedure, or form b : individual significance or justification 74. Further, on the matter of the semantic on the merits is defined by legaldictionary.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 court based upon the facts presented in evidence and the law applied to that evidence. A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome. Example: An attorney is two days late in filing a set of legal points and authorities in opposition to a motion to dismiss. Rather than dismiss the case based on this technical procedural deficiency, the judge considers the case "on the merits" as if this mistake had not occurred. 75. 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.

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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 trial judge's traditional discretion in such matters have occurred while the new Rules of Court, in force since 1982, have been attempting to escape the bounds of excessive formalism. For example, the Rules now emphasize that: 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. 2.01 The court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 2.02 A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties . . . It seems to me to be worthy particular emphasis that the phrase "should not be granted except for the most compelling reasons" are not found in the Rules of Court. Those words appear to me to be inconsistent with both the letter and the spirit of 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 me in rulings on civil prodedure [sic]. In my opinion those three reversals indicate that the Court of Appeal in deciding questions of 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 a decision to allow a claims manager of the defendant's insurance company (who was paying for the defence and would pay for any settlement or award) to be present at the examination for discovery of the plaintiff in an action arising out of a motor vehicle accident. Although the insurer would have to pay, the Court of Appeal decided the insurer "is not a party and is not entitled to be present". That strikes me as favouring form over substance. In Sivret v. N.B. Power (January 3, 1995), reversing 146 N.B.R. (2d) 40, the Court of Appeal took the view that until death is proved by certificate or direct evidence or in compliance with the Presumption of Death Act, death cannot be inferred. Thus the Court of Appeal allowed a boy's litigation guardian to continue to act in that capacity more than one year after the boy fell from a bridge over the St. John River and became "missing". In Sivret the Court of Appeal also enforced the disputed acceptance by the litigation guardian of an Offer to Settle claims relating to the boy's suffering, future loss of income and other damages from an accident. Most of the boy's claim would die with him. That Offer to Settle had been made before the boy fell from the bridge and went "missing". Again, I think the message from the Court of Appeal Sivret is to favour form over substance. [Page 13]

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In R. v. Fraser (February 22, 1995) the Court of Appeal allowed an appeal by the Crown and criticized me for raising a Limitations of Actions Act defence for an unrepresented defendant who was being sued by the Crown to collect a very old student loan. The Court of Appeal cited no cases but said: . . . the cases say that a judge should not raise such a defence of his or her own volition. See Mew, The Law of Limitations, p. 54. That book by Mew does makes that point but cites in support of it only two cases. Those two cases are extremely ancient 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 of Appeal ignored the well-known provision in the Interpretation Act which lays down the modern rule that: 4. Every Act shall be judicially noticed, without being specially pleaded. Fraser also strikes me as another example of the Court of Appeal favouring form over substance. Ironically, counsel for the successful appellant in Fraser is one of the counsel for PetroCanada in this case. Despite those three recent decisions from the Court of Appeal which I think favour form over substance in procedural matters, there are two recent indications that the Court of Appeal is now taking another approach. In October 1994, before the Court of Appeal decided Sivret and Fraser, I allowed a motion in this action for an interim injunction restraining Petro-Canada from proceeding against Daly under its power of sale until 30 days after the trial judgment in this action. In doing so because of special circumstances, I departed

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[Page 14] from the usual practice and did not require Daly put up extra security. 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 unusual discretionary order by another judge that extended the time for adding a defendant after the expiry of a limitation period because of the particular circumstances of the case. That case is York Equipment Ltd. v. Dabrowski Estate (April 6, 1995). As I see it, in York Equipment the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits. Also the Court of Appeal particularly emphasized in York Equipment that: We repeat the standard of review adopted by this Court in past cases, and as was said over a century ago in Gelding 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 the judge, the Court of Appeal does not in general interfere with that discretion. Not that the Court of Appeal has not complete jurisdiction over such cases, or that the decision of the Court below would not be overruled where serious injustice would result from that decision; but, as a general rule, the Court of Appeal declines to interfere. As far as I can determine that April 6, 1995 decision of York Equipment is only the third time that the New Brunswick Court of Appeal has ever cited or expressly followed that 1876 English 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 review adopted by [the New Brunswick Court of Appeal] in past cases". The other two cases in which Golding was cited in the law reports of this province as far as I can determine are the conflicting decisions Cheminski et al. v. Engineering Consultants Ltd. 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 out a 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 correct statement of the law applicable to appeals such as the present" the English Supreme Court Practice. The "standard of review" approved in Cheminski was much broader than in Golding. The "Cheminski standard of review" was set out at page 770 as follows: "There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the Judge to make, unless it be shown that he exercised his discretion under a mistake of law, or in disregard of principle, or under a misapprehension as to the facts; or that he took into account irrelevant matters or failed to exercise his discretion, or that his order would result in injustice; and the Court will assume that the Judge properly exercised his discretion unless the contrary is shown." Collier was an appeal of a case of unequal division of marital 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 court has 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-Ko Enterprises Ltd. (1981), 35 N.B.R. 256, 88 A.P.R. 256. A similar principle was enunciated by the British Columbia Court of Appeal in Maddison v. Bain, [1928] 3 D.L.R. 33, where Masten, J.A. at p. 34 said: . . . It is not usual for a Court of Appeal to set aside orders in 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 it would not do so unless they could say that the case was so 'extreme' and the circumstances so special that a 'serious injustice' would result if the order complained of was sustained, and cf. Knowles v. Roberts (1888), 38 Ch. D. 263, where Cotton, L.J., held, at p. 268, that 'material injury' and 'very great prejudice' had been occasioned by order and therefore it was set aside. This view of non-interference with judicial discretion has 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 English Court of Appeal and they said they would not do so unless there was what Atkin, L.J., declared had been occasioned by the order of the Lord Chief Justice, viz., 'a very substantial injustice'." The judge of first instance made a discretionary order with respect to an unequal division of marital debts. As I am not able to say that in exercising his discretion the trial judge was manifestly 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 Appeal ignored Cheminski. I interpret Collier and York Equipment as standing for the premise that "Cheminski standard of review" is no longer the law in this province. In my view York Equipment also indicates that the Court of Appeal is now emphatically returning to its position in Collier and reaffirming the "Collier standard of review". It is accepting that the law has recognized for more than a century that a court of appeal should not interfere with the exercise of the discretion of a 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 by Stratton, C.J.N.B., in Collier. In my view, his concurrence minimizes the effect of his comment in Atlantic Speedy Propane that discretionary procedural relief "should not be granted except for the most compelling reasons" which echoed Miller, J. in McCarthy that "as with all discretionary powers, [it] should not be granted except for the most compelling reasons". In my opinion in view of Collier and York Equipment those earlier words by Chief Justice Stratton in Atlantic Speedy should not be considered as implying that the standard of review of judicial discretion in a matter of civil procedure is to verify the existence of "most compelling reasons". As I see York Equipment, the Court of Appeal is now confirming that it is putting substance over form in matters of civil procedure. Accordingly, in my opinion the "form over substance" implications for civil procedure of the Court of Appeal decisions of 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 matter regarding 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 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. 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 <the company was enjoined from selling its stock>. [Cases: Injunction 1. C.J.S. Injunctions 24, 12, 14, 22, 24, 166.] 2. To prescribe, mandate, or strongly encourage <the graduating class was enjoined to uphold the highest professional standards>. Also spelled 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 Compliance The court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 2.02 Effect of Non-Compliance A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms,

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to secure the just determination of the matters in dispute between the parties. In particular, the court shall not set aside any proceeding because it ought to have been commenced by an originating process other than the one employed.

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 amending motion proposed by Juniberry and Mr. Hong? Rule 27.10 begins with a threshold test which a court must consider before [Page 7] deciding whether to permit an amendment to the pleadings. That is, would the granting of the amendment result in prejudice which cannot be compensated for by costs or an adjournment? If no such prejudice would result, then the Court may grant the motion, and if so, on such terms "which are necessary for the purpose of determining the real questions in issue". Rule 2.02 further directs: ... all necessary amendments shall be permitted ... at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. These are rules of procedure as opposed to the substantive law which defines substantial legal rights and claims. 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. 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 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. While leave to amend pleadings is a discretionary right, the exercise of that discretion is subject to review on appeal. See Moore v. State Farm Fire & Casualty Company (1982), 42 N.B.R. (2d) 667 (C.A.). [Page 8] In reviewing a trial judge's refusal to permit an amendment to pleadings, Stratton, J.A., as he then was, in Moore, approved an appeal court's review of the following questions to determine if an injustice resulted from the trial judge's decision. Did the proposed amendment raise a new issue or was it a "proper and permissable" extension of a claim by the party seeking the amendment? Could it be fairly argued that if the requested amendment were allowed it would (to which I would add, or it should) have taken the other party by surprise? Did the amendment deprive 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"? 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: 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 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 of Action with Statement of Claim Attached has been filed with the Clerk of the appropriate Judicial District, it must be served within six months. In his motion Mr. LeBlanc relies on Rules 1.03(2); 2.02; 3.02(1) and (2) which read: 1.03 Interpretation (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 2.02 Effect of Non-Compliance A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. In particular, the court shall not set aside any proceeding because it ought to have been commenced by an originating process other than the one employed. 3.02 Extension or Abridgment (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules.

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(2) A motion for extension of time may be made either before or after the expiration of the time prescribed. [12] Mr. Bastarache in his motion relies upon Rule 26.01(a) which provides: 26.01 Where Available A defendant who is not in default under these rules or under an order of the court, may apply to have the action dismissed for delay where the plaintiff has failed (a) to serve his Statement of Claim on all the defendants within the time limited for so doing [13] In cases of this nature, as a general comment, it is accepted that the Court should look to see if there is a justifiable excuse for the delay and what prejudice might accrue to either party. In the latter instance regard must be had to the possible prejudice to the Defendants action due to things like the unavailability of witnesses, failing memory, loss of documentation. [14] Mr. LeBlanc has referenced a number of authorities. In Martin v. Goodine (1983), 53 NBB (2d) 52 (QB) the Court was faced with a situation in which a lawyer was lax in pursuing the action. In fact, the lawyer failed to serve the Defendant within the six month period. Deschnes, J. as he then was said at paragraphs 33 and 34: 33 In my view, if the plaintiff is successful in establishing that the failure to comply with Rule 16.08(2) is not as a result of his personal

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involvement but rather the result of laxity on the part of his solicitor and that no prejudice to the defendant has occurred, the conduct of his solicitor should be treated as a neutral factor and the court in such circumstances should concern itself primarily with the rights of litigants and not the conduct of solicitors. 34 On the other hand, if a defendant's position has been prejudiced as a result of the failure on the part of the plaintiff's solicitor to comply with Rule 16.08(2) or failure to proceed without delay to present a motion for an extension order, I fail to see how a defendant should be visited by the consequences of the plaintiff's solicitor's mistakes; under such circumstances, as between litigants, the plaintiff stands in a better position than the defendant by reason of the fact that the former would probably have a cause of action against his solicitor whereas the defendant must live with the prejudice caused.

[15]

Also, in Canada v. Pelletier reflex, (1983), 58 NBR (2d) 184 (QB) the Court stated at paragraphs 6 and 7: 6 On the other hand, counsel for the plaintiff submitted that the plaintiff would itself suffer serious prejudice if the court did not exercise its discretionary power in the present case and allow service of the writ of

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summons on the defendant. He relied on 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), 53 N.B.R.(2d) 52; 138 A.P.R. 52; Moffat v. Rowding, 14 D.L.R.(3d) 186. In particular, he relied on the case of Simpson v. Saskatchewan Government Insurance Office, 65 D.L.R.(2d) 328, and cited the following passage from page 333 of the decision: "In an application to renew a writ of summons the basic question which faces the court is, what is necessary to see that justice is done? That question must be answered after a careful study and review of all the circumstances. If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. This should be done even if the only reason for non-service is the negligence, inattention or inaction of the plaintiff's solicitors and notwithstanding that a limitation defence may have accrued if a new writ was to be issued. If the non-service of the writ was due to the personal actions of the plaintiff, that, of course, would be

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a fact to be considered by the court. Each case should be considered in the light of its own peculiar circumstances and the court, in the exercise of its judicial discretion, should be determined to see that justice is done." 7 The above-mentioned cases clearly reveal that a court has a fairly wide discretionary power to extend the time for service of a writ of summons and to allow service of the writ even if the action is statute-barred. It is the court's responsibility to consider all of the circumstances which caused the delay in serving the originating process, the length of the delays and the reasons for them including counsel's negligence or carelessness. 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 extension of time for service does not prejudice or work any injustice to either of the parties. If, for example, a defendant discharged a third party from his share of the liability towards the plaintiff after expiry of the time for service, the extension of the period would then prejudice [*page188] the defendant's defence of his rights against the plaintiff by preventing him from asserting that third party's liability. Consequently, it is the court's responsibility to decide whether there is an injustice caused to the plaintiff by

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refusing the extension of time or whether the extension of time causes an injustice to the defendant by preventing him from fully asserting every possible ground of defence at his disposal in defence of the action. In the present case, it is true that a period of almost three years has passed since the expiry of the twelve month period following the issue of the writ of summons, as provided 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 for the plaintiff's delay in having the writ of summons served. The only cause for the plaintiff's delay is the negligent failure of its counsel to take the necessary steps within the required time. The defendant submitted, on the other hand, that the delay caused her prejudice in that during that delay, she contracted other debts in order to further her studies. However, she did not indicate how the delay had interfered with her asserting all possible grounds of defence against the claim brought against her or how she was deprived of a defence which she might otherwise have been able to assert. Moreover, it is hard to understand how the fact of having succeeded in finishing her studies, even though she contracted other debts, could have caused her an injustice. The basis of that submission is far from clear. One might rather think that the plaintiff's delay in asserting its claim gave the defendant a real

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advantage by permitting her to finish her university studies. [19] I am satisfied that the delay in service was caused by the lawyer which in the circumstances should be treated as a neutral event. I am also satisfied that the Defendants insurer has not and will not suffer any prejudice if the Plaintiffs motion is granted. However, prejudice will occur to the Plaintiff if the time period for service is not extended. Therefore justice will be done if the time period for service is extended. 86. 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. 87. 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. 88. 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) at paragraph 25 28 as follows: [25] I believe from my review of the material this is a situation where a Court must and should apply Rule 1.03 and Rule 2.02. Rule 1.03(2) says: These rules shall be liberally construed to

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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 noncompliance with the Rule and I refer to Rule 2.02. It states: 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 proceedings, upon proper terms, to secure the just determination of the matters in dispute between the parties. ... [26] I believe that this is a situation where through no fault of the named defendants, by reason of an oversight in the office of their solicitor, that relief should be permitted so as to ensure and to secure the just determination of the matters in dispute. The only way to do that when one looks at the nature of the claim, what has transpired and the matters in dispute and that these defendants who filed a Statement of Defence with the Clerk of the Court well within the time prescribed, is to allow these defendants to defend the claims brought against them and set aside the noting in default and the judgment. [27] I believe that the reasons of Chief Justice Hughes in the decision of Brunswick International (Canada) Limited v. Albert, (1975), 12 N.B.R. (2d) 296 at page 305 are applicable in the present instance. Chief Justice Hughes in that case stated in the concluding paragraph: ...I am of the opinion that the failure of the defendants solicitor in presenting proper material to set aside a judgment regularly entered resulted from a misconception of the necessity of setting out facts upon which the defence claimed by the defendant is based and because it would work a great injustice on the defendant, if he has in fact the defence to the action, if he were compelled to satisfy a judgment which was entered because of a solicitors error, especially where the practice in this Province has not been firmly established.

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In this case there was an error made by the solicitor and I am of the view that it would not be fair to not allow the motion in such circumstances and allow the defendants in question the opportunity to defend by reason of the fact of an oversight by their solicitor or someone in their solicitors office. [28] For the foregoing reasons I set aside the noting in default. I set aside the default judgment. In my view as this matter should have been resolved without the necessity of a contested application I make no order as to costs and I make no order as to terms or conditions pursuant to Rule 21.08. The application and motion is allowed and the default judgment and the noting in default are set aside.

89. 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. 90. 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

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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. 91. 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), as follows: ANALYSIS AND DECISION 15. Rule 16.08(1) of the Rules of Court states:

(1) Where an action is commenced by issuing a Notice of Action with Statement of Claim Attached, it shall be served within 6 months thereafter. 16. Rule 3.02 states:

3.02 (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these Rules.

(2) A motion for extension of time may be made either before or after the expiration of the time prescribed. ... 17. Rule 2.02 clearly stipulates that failure to comply with the Rules must be treated as an "irregularity", which can be remedied to secure the just determination of the matters in dispute.

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18. Rule 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. 19. The main concern in cases such as this is to see that justice is done and to make certain that any extension of time for service does not prejudice or work injustice to the parties involved. 20. I agree with counsel for the Defendant Knowlton that the onus is on the party seeking to have the Court exercise its discretion to extend the time, to satisfy the Court that in the circumstances of the particular case, the interest of justice calls for such an action. 21. The test to be applied when considering such an application is that of the substantial injustice test which was put forth by Mr. Justice Ayles in the Court of Appeal decision of Bridges v. Daeres reflex, (1986), 64 N.B.R. (2d) 412, which test was also accepted as being correct by our Court of appeal in the more recent case of Hill v. Mattatall, [1996] N.B.J. No. 193. 22. In Hill, supra, Chief Justice Hoyt as he then was, writing for the majority stated as follows at paragraphs 8, 9, 10 and 12: 8 A review of the New Brunswick cases reveals that New Brunswick courts do not take as strict a view of time limits as do, for example, the Ontario courts. In Ontario, there is a presumption of prejudice in favour of the responding party that the late party must overcome. In New Brunswick, such prejudice is taken into account, but is not the determinative factor. 9 In Bridges v. Daeres reflex, (1987), 83 N.B.R. (2d) 331, this Court upheld a judge's refusal to remedy a ten year delay. Ayles, J.A.

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formulated the test to be applied when considering such applications. He said at p. 337: The test as set out above is a double one: the failure to renew must do an obvious and substantial injustice to Mrs. Bridges while at the same time its renewal must not work any substantial injustice to Mr. Daeres as to his defence. ... 10 As Jones, J. noted in Spencer v. King and Mockler, Allen & Dixon reflex, (1984), 59 N.B.R. (2d) 162, the use of the word "just" in Rule 3.02 renders the remarks of Culliton, C.J. in Simpson v. Saskatchewan Government Insurance Office (1967), 65 D.L.R. (2d) 324 relevant to Rule 3.02 applications. Culliton, C.J. said at p. 333: In an application to renew a writ of summons the basic question which faces the Court is, what is necessary to see that justice is done? That question must be answered after a careful study and review of all the circumstances. If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. This should be done even if the only reason for non-service is the negligence, inattention or inaction of the plaintiff's solicitors and notwithstanding that a limitation defence may have accrued if a new writ was to be issued. If the non-service of the writ was due to the personal actions of the plaintiff, that, of course, would be a fact to be considered by the Court. Each case

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should be considered in the light of its own peculiar circumstances and the Court, in the exercise of its judicial discretion, should be determined to see that justice is done. In Canada v. Pelletier reflex, (1984), 58 N.B.R. (2d) 184, Daigle, J., as he then was, considering a three year delay, applied Simpson and allowed the application. Landry, J. in Jardine v. Kent General Insurance Corp. et al. reflex, (1988), 90 N.B.R. (2d) 213, applied a "severe prejudice" test in declining to remedy a four year delay. I can see no difference between "severe prejudice" and "substantial injustice". More recently, McLellan, J. in Gifford v. Phalen Estate, [1995] N.B.J. No. 586 (QL), using the "substantial injustice" test, allowed an application to extend the time to serve a Notice of Action and Statement of Claim after a five year delay from the issuance of the Notice of Action. ... 12 In my view, the Judge's use of the "substantial injustice" test articulated in Bridges was correct. Nor am I able to conclude that he was wrong in determining that the appellants would suffer no substantial injustice. The length of delay, of course, is a factor to consider, but not the only factor. Undoubtedly, the longer the delay, the more prominent it becomes in assessing the various factors that could cause a substantial

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injustice. A solicitor's delay, unless the delay has an oblique motive, for example, to gain some tactical advantage, is a neutral factor in assessing the injustice each party would suffer. 23. A motion for leave to appeal Hill was dismissed by the Supreme Court of Canada on January 9th, 1997. (see reflex, (1997), 183 N.B.R. (2d) 320). 24. I return to the facts of this case. The insurance company was put on notice as early as December 11, 2000. They were aware that the Plaintiff had retained legal counsel to pursue the claim. They did make an investigation and an informed decision was made to close their file on April 10, 2001 after denial of liability. The two-year limitation period had not even expired by then. There is no onus on a plaintiff to do anything before the two years are up and he has a further 6 months to serve the documents. 25. This is not a case where the Defendants insurance companies were unable to obtain evidence or prevented from making an investigation in a timely manner. They were put on notice early on and they did have a chance to make an investigation. 26. There is no evidence of there being any witnesses to the accident other than the parties themselves. 27. The delay in this case is quite short when compared to some of the delays in the cases mentioned in the Hill, supra, and Savoie, infra, decisions. The Plaintiff had until to August 1st, 2002 to serve the documents. The motion for an extension of time was filed in October 2003, that is fifteen months later. 28. Furthermore, I conclude that sometime between December 2002 and January 2003, the Plaintiff put the Defendants on notice again and Mr. Kearnan knew or should have known at that time that a Notice of Action with a Statement of Claim had been properly filed and that the Plaintiff intended to continue her claim against Mrs. Knowlton. I conclude that at this time a reasonable person would have had reason to

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believe that a claim would be advanced against his insured. In the circumstances, Mr. Kearnan should have advised his insured Mrs. Knowlton. This would have prevented her from destroying her file in the spring of 2003. Mrs. Knowlton stated in her affidavit that she had not heard from anyone since March 29, 2001. 29. Mr. Kearnan chose to close his file again in July 2003.

30. Mrs. DesChnes was aware in January 2003 that she had failed to serve the documents in time. She did not provide any explanation for the 9-month delay in bringing this motion for an extension order. 31. I am satisfied on the evidence that the failure to comply with Rule 16.08(2) and the failure to proceed without delay to present a motion for an extension order is the result of laxity on the part of Mrs. DesChnes. Counsel for Mrs. Knowlton argued that the Plaintiff should have asked questions and made sure that her solicitor did the work. I cannot agree with this. As far as the Plaintiff was concerned, the action was filed on February 1, 2002. She had no way of knowing that the documents had not been served or that something was wrong with the proceedings. I find no misconduct on the part of the Plaintiff personally. Such delay by a solicitor as opposed to a delay by a party must be considered a neutral factor in assessing any prejudice or injustice. 32. I have reviewed the documents that Mrs. Knowlton has destroyed. Many of these, if they were admitted, would have little, if any, relevancy to the issue. There is no suggestion that the paramedic or the witness who drove Mrs. Agnew home or the owner of the residential property could not be found. Items mentioned from d. to g. would be used in argument, if at all, and there is no reason why copies of d, f. and g could not be obtained if necessary. 33. As for Mr. Kearnan, he has not destroyed his file. He states that he has been unable, to date, to locate all the file notes and materials. There is very little evidence of what sort of documents are missing or since when they are missing or why they are missing. Mr. Kearnan admitted that he originally closed his file in April 2001. If documents were destroyed at that time, the Plaintiff cannot be blamed for this, as it was not reasonable in the circumstances to close the file at that time.

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34. The insured and her insurer should have taken steps to make sure that information relevant to its defense was maintained. 35. In Savoie V. Dumont, [2001] N.B.J. No. 171, Mr. Justice Glennie reviewed in great depth the jurisprudence concerning this subject matter and it would be of no use to repeat this exercise. In Savoie, the plaintiff had been injured in two motor vehicles accident. She settled the second accident. Eight years after the first accident, she moved for an extension of time to effect service. The defendant was not aware of the plaintiffs claim until they received notice of the motion. Justice Glennie dismissed the motion. The court considered that: the defendants insurer had not been put on notice, the defendants had not been able to conduct any investigation or independent medical evaluation, there were overlapping damages from two accidents, and the plaintiff had settled the second accident in complete disregard for the first accident. The Court found that these factors, taken cumulatively, caused substantial injustice to the defendants. 36. In paragraph 5, Mr. Justice Glennie acknowledges that in two other similar motions concerning the same solicitor the applications to extend time were allowed. He explains the difference between the cases as follows: 5. In Gifford and in Hill, the applications to extend time were allowed. It must be observed that in each of those cases, there existed two critical factors which are not present in the case at bar. In each of those cases, the respective plaintiff's had only been involved in one accident and in each of those cases the insurers of the defendants had been put on notice of the plaintiff's claim for damages for personal injuries. 37. Justice Glennie, throughout his decision, puts much emphasis on the fact that the defendants in Savoie were never put on notice. 38. Here, the insurers were put on notice and they were able to carry out their investigation. There is no evidence of another motor vehicle accident where the Plaintiff would have suffered injuries. I refuse to consider the hearsay evidence contained in paragraph 7 b. of Mrs. Knowltons affidavit reproduced above as constituting such

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evidence. Furthermore, there is nothing to suggest that the medical evidence will be affected by the delay. 39. In Hill, supra, liability was not in issue. In the present case, liability is in issue; however, there was no mention of any witnesses to this accident other than the parties themselves, all of who are still available to testify. CONCLUSION AND DISPOSITION 40. In the present matter, the refusal to extend time for service will cause obvious and substantial injustice to the Plaintiff. The extension of time will likely cause some prejudice to the Defendants and their insurer. I do not however, think that it will cause substantial injustice to the Defendants or their insurers. 41. Each case must turn upon its own facts. The obligation of the Court is to see that justice is done. In my view, the facts of this case are sufficient to enable the Court to use the discretionary powers granted to it in Rule 2.02 and 3.02 in order to secure the just determination of the matters in dispute between the parties. 42. I hereby grant to the Plaintiff an extension of 60 days to serve the Defendants herein with the Notice of Action and Statement of Claim. 92. As stated above, in Agnew v. Knowlton, supra, the Plaintiff comprehends that each case should be considered in the light of its own peculiar 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

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substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. 93. 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, 94. 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. 2) while to permit it is not going to work any substantial injustice to the respondent or prejudice the respondent 's defence, 95. 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

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Granting of the Orders for a Continuance will not work any substantial injustice to the Defendant or prejudice the Defendant 's defence. 96. 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. 97. 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. 98. 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 find at paragraph 32 38), as follows:

4)

Has the Defendant Been Prejudiced?

[32] In Chiarelli, Laskin J.A. stated the law for extending the time for service under Ontario Rules, most of which rules are the same as ours. At paragraph 12: ...the guiding principles remain...[a]s Lacourciere J.A. said in Laurin v.

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Foldesi (1979), 23 O.R. (2d) 331, 96 D.L.R. (3d) 503 (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. And, the plaintiff has the onus to prove that extending the time for service will not prejudice the defence. [33] Although it is up to the plaintiff to prove no prejudice to the defendant from the extension, courts recognize the obvious problem of proving a negative and want to see the assertion of prejudice has some firm basis in reality. In Chiarelli, Laskin J.A. stated at paragraph 14: ...The motions judge was obviously unimpressed, as am I, with the defences assertions of prejudice. The only allegation of prejudice in the material filed by the defence on the motion is the following very general statement in the affidavit of State Farms claims adjuster: It is my believe that the defence of this action has been seriously prejudiced due to the passage of time and the strong possibility that preaccident and postaccident records and witnesses may not be available or that their recollections may not be accurate.

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Although the onus remains on the plaintiffs to show that the defendant will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records are still available or that their unavailability will not cause prejudice. It seems to me that if the defence is seriously claiming that it will be prejudiced by an extension it has at least an evidentiary obligation to provide some details. The defence did not do that in this case. [34] Even if a defendant shows he suffered prejudice during the time which elapsed before he had notice of the claim, it must be shown the prejudice occurred after the expiration of the date when he should have been served. In Chiarelli, Laskin, J.A. stated at paragraph 16: [16] ....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. In this case the defence complains that the police officer's notes have been destroyed. However, they were destroyed within two years of the accident under a local police policy. Thus, the notes would have been unavailable to the defence even if the statement of claim had been served on time.

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[35] Like the judges in Chiarelli, I am unimpressed with the defendants assertions of prejudice. I will deal with the assertions in detail below, but will begin by noting : 1) Dr. Callahan has a good memory of the August 24, 2002 event, which he demonstrates in his affidavit; and 2) Dr. Callahans counsel requested the Souris Hospital records in September, 2005. I presume the records still exist and Dr. Callahans counsel received them, else there would be a clear basis for a claim of prejudice, and Dr. Callahans counsel would not have failed to raise it. [36] As to Dr. Callahans claims of prejudice I conclude as follows: 1) Dr. Callahan says had the claim been brought to his attention in August 2003, he could have retained legal counsel to assist in reviewing the Plaintiffs claims and condition at the time. This assertion is so vague as to be meaningless, and ignores the fact the claim was issued in August, 2003, but was not required to be served until February, 2004. 2) Dr. Callahan says since he has now moved to Newfoundland, his ability to review and prepare a defence are considerably hindered. Had he been notified earlier, he says he could have attended to these issues. Dr. Callahan moved to Newfoundland long before the limitation period expired and long before the statement of claim was issued (he moved in December, 2002). Since the claim was issued, Dr. Callahan was on PEI only once, in the summer of 2004, after CMPA had the statement of claim. Aside from being factually unsound, and lacking in specifics, the whole notion that a person in Newfoundland is handicapped in attending to

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the preliminary stages of defending a case in PEI is not realistic; 3) Dr. Callahan says if he had been aware of the claim earlier, he could have arranged an independent medical examination of the Plaintiff more contemporaneous with his alleged injuries. I do not accept this for the following reasons: a) As observed by Laskin J.A. in Chiarelli, most defendants save their IME for just before trial. In order to make this assertion, the defendant should have to show an air of reality to the notion he might have done an early IME; Had the plaintiff originally sued only Camp Abegweit and the two doctors, the plaintiff could have waited 21/2 years after the injury before serving the statement of claim. Dr. Callahan received a copy of the claim 2 years 81/2 months after. CMPA had the claim 11/2 years after the injury. There is no suggestion there was an important date for an IME falling between 21/2 years and 2 years 81/2 months post injury, or even between 11/2 years and 2 years 81/2 months. As well, Dr. Kapalanga, insured by CMPA and represented by Mr. Gormley had been served in February, 2004. If it was important an IME be done, it could have been done.

b)

[37] To summarize on this issue:

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1) the plaintiff has a reasonable excuse for the delay in service; the defendant, through his insurer, had 2) constructive notice of the claim within the limitation period and within the service period; 3) even disregarding the notice to CM PA, the defendant had actual notice of the claim two years eight and one half months after the injury occurred. The plaintiff could have waited two years before issuing the claim, then a further six months before serving it. Nothing prejudicial occurred after the expiration of any dates, whether limitation period, or date of issuance of claim or service period; the plaintiff has satisfied the onus of proving the defendant will not be prejudiced by the extension.

4)

[38] For the reasons set out above, I find the plaintiff has shown extending the time for service will not prejudice Dr. Callahans defence. I am satisfied the extension will advance the just resolution of the dispute and accordingly I extend the time for service on Dr. Callahan. 99. 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.

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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. 100. 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 Honorable Justice Benjamin B. Taylor decision that granting the requested Continuance is most appropriate. 101. 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,

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again, will advance just resolution of the dispute, without prejudice or unfairness to the parties. 102. 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. 103. 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 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. 104. 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

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unfairness to the parties and will consequently be in accordance with the Law Society of New Brunswick Code of Professional Conduct.. B. Should the Defendant pay costs of the within Motion? 105. 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 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

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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 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 106. 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.

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107.

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. 108. 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.

The Defendants conduct 109. 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

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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. 110. 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. 111. 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, 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

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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. 112. The relevant sections of the New Brunswick Rules of Court are

reproduced below: 2.01 The Court Dispensing with Compliance The court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 2.02 Effect of Non-Compliance A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. In particular, the court shall not set aside any proceeding because it ought to have been commenced by an originating process other than the one employed. 2.03 Attacking the Regularity of Proceedings A motion to attack a proceeding for irregularity shall be made within a reasonable time, and shall not be allowed if the party applying has taken a further step in the proceeding after having knowledge of the irregularity. 113. 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

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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. 114. 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 Brunswick Code of Professional Conduct, instead the opposite has occurred therefore causing unnecessary delay and expense Court litigation. 115. The relevant sections of the Law Society of New Brunswick Code of

Professional Conduct CODE OF PROFESSIONAL CONDUCT CHAPTER FIFTEEN is provided bellow: COLLEAGUES CHAPTER 15 RULE The lawyer shall practise good faith, courtesy and collegiality in all contacts with other lawyers and with their representatives. Good faith, (professional) courtesy, collegiality 2. Without derogating from the broad application intended of the elements of the Rule in this chapter the following directives shall be observed as minimums by the lawyer in practising good faith, courtesy and collegiality as envisaged by the Rule:

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(iii) 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. (v) The lawyer shall be punctual in fulfilling commitments made to another lawyer and shall respond on a timely basis to all communications from another lawyer that contemplate a reply. (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. Avoidance of sharp practice 4. The lawyer shall not engage in sharp practice in the practice of law . Without limiting this proscription 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. In addition the lawyer shall not impose upon another lawyer impossible, impractical or manifestly unfair conditions of trust including those with respect to time restraints and the payment of penalty interest . 116. 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.

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Good faith, (professional) courtesy, collegiality (iii) 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. 117. 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. 118. In, Blanger v. Roussel, 2006 NBCA 2 (CanLII) Chief Justice Drapeau

C.J.N.B. ruling on an application for Orders under Rule 62.24(1), at paragraph 6 stated as follows: [6] When ruling on an application under Rule 62.24(1), the Court must take into account the interests of every party. The Court may show leniency, particularly where the administration of justice will not be brought into disrepute should it adopt this approach. While it is true that 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, it should always bear in mind that another court has considered the issues and has outlined a solution that is

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designed to be final and in keeping with this ideal. In this case, the interests of justice would be ill served by an order that is less drastic than the dismissal of the appeal. 119. 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. 120. 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. 121. 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

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the Respondents Solicitor to serve upon the Plaintiff according to the Rules of Court. 122. 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. 123. 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.

124.

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

Chief Justice J. Ernest Drapeau stated the following regarding Rule 62.24(1) and award of costs to a self-represented Appellant, (please see below staring at page 1 through to and including page 3) as follows: This is a motion by the respondents, other than Par Syndication Group Inc., for an order dismissing the appeal

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pursuant to Rule 62.23(1)(c) of the Rules of Court on the ground that the appellant has unduly delayed preparation and perfection of his appeal. Rules 62.15, 62.23(1)(c) and 62.24(1) provide as follows: . 62.24 Failure to Comply with Rule (1) Where a party to an appeal or his solicitor is at fault in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may (a) if the party failing to comply is the appellant, (i) dismiss the appeal with costs, including the costs of the motion, or (ii) direct the appellant to perfect the appeal within a specified time, (b) set the appeal down for hearing, or (c) make such other order as may be just including an order for payment of costs forthwith. Dismissal of an appeal for failure to comply with Rule 62.15 is only appropriate "where it is shown that the interests of justice would be ill-served by a less drastic measure." See New Brunswick (Minister of Family and Community Services) v. A.N., [2002] N.B.J. No. 373 (C.A.) -3(Q.L.). The same approach is warranted when Rule 62.23(1)(c) is brought into play.

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In our view, the interests of justice would be better served by an order under Rule 62.24(1)(a)(ii) directing the appellant to perfect his appeal within a specified time. Disposition The motion for an order under Rule 62.23(1)(c) is dismissed. The appellant is directed to perfect his appeal on or before December 19, 2003, failing which it will stand dismissed. The unique circumstances of the present case warrant an order of costs against the moving parties in favour of the selfrepresented appellant. We fix those costs at $750. There will be no order of costs in favor of Par Syndication Group Inc. 126. 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. 127. 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 , are as follows: 18.02 How Personal Service Shall be Made (1) Personal service shall be made as follows: Individual (a) on an individual, other than a person under disability, by leaving a copy of the document with him; 18.03 Other Ways to Effect Personal Service Where available (1) With the exception of Rules 33.03 and 55.03, where personal service is required by these rules, any appropriate method of service authorized by this subrule may be used. Service by Prepaid Mail or Prepaid Courier

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(3) Where personal service of a document may be made by leaving a copy with a person pursuant to Rule 18.02(1), such service may be made anywhere in Canada by sending a copy of the document, together with an Acknowledgement of Receipt Card (Form 18A), by prepaid mail or prepaid courier addressed to the person at the last known address of the person. (4) Service by prepaid mail or prepaid courier shall be deemed to have been effected only if any one of the following is returned to and received by the sender: (a) the Acknowledgement of Receipt Card bearing a signature which purports to be the signature of the person to whom the document was sent; (b) a post office receipt bearing a signature which purports to be the signature or a copy of the signature of the person to whom the document was sent; (c) any other form of acknowledgement of receipt in writing bearing a signature which purports to be the signature or a copy of the signature of the person to whom the document was sent; or (d) confirmation in writing from the carrier that the document was delivered to the person to whom the document was sent. (5) Service by prepaid mail or prepaid courier shall be deemed to have been effected on the date the sender receives a receipt or confirmation under paragraph (4). 20.01 Time for Filing and Serving Statement of Defence Subject to Rule 20.02, a Statement of Defence (Form 27A) shall be filed and served (a) within 20 days after service of the Statement of Claim where the defendant is served in New Brunswick, (b) within 40 days after service of the Statement of

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Claim where the defendant is served elsewhere in Canada or in the United States of America, or (c) within 60 days after service of the Statement of Claim where the defendant is served anywhere else. 20.02 Notice of Intent to Defend (1) Any defendant served with a Statement of Claim who intends to defend the action may, within the time limited for filing and serving his Statement of Defence, file and serve a Notice of Intent to Defend (Form 20A). (2) Any defendant who files and serves a Notice of Intent to Defend within the time limited for so doing, shall have an additional 10 days within which to file and serve his Statement of Defence, and he shall be deemed to have submitted to the jurisdiction of the court. 27.03 Service of Pleadings Who is to be Served (1) Every pleading shall be served (a) initially on every opposite party and on every other party who has filed and served a pleading or a Notice of Intent to Defend in the action or in a counterclaim, cross-claim or third or subsequent party claim in the action, and (b) subsequently on every other party forthwith after he files and serves a pleading or a Notice of Intent to Defend in the action or in a counterclaim, cross-claim or third or subsequent party claim in the action. 27.04 Time for Filing and Serving Pleadings (1) The time for filing and serving a Statement of Claim is prescribed by Rule 16.08. (2) The time for filing and serving a Statement of Defence is prescribed by Rule 20.01. (3) A Reply shall be filed and served within 10 days after service of the Statement of Defence. (4) The time for filing and serving pleadings in a counterclaim is prescribed by Rule 28. (5) The time for filing and serving pleadings in a cross-claim is prescribed by Rule 29.

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(6) The time for filing and serving pleadings in a third party claim is prescribed in Rule 30. 128. 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: Defendants questionable conduct history: 129. 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. Other Ways to Effect Personal Service, Service by Prepaid Mail or Prepaid Courier, of correspondence containing the relative Court Documents 1. Copy of a Claim for Lien Dated April 16, 2009; 2. Copy of a Certificate of Pending Litigation Dated April 21, 2009; 3. Copy of a Notice of Action (Form 16 B) Dated April 21, 2009;

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4. Copy of a Statement of Claim (Form 16 C) Dated May 20, 2009; 5. Copy of a Amended Statement of Claim (Form 16 C) Dated Aug 21, 2009; 130. The, as mentioned above, unsuccessful Service attempts, caused the

Plaintiff to necessarily acquire the services of Canadian Process Servers Inc. (a professional process service company based in Toronto, Ontario) According to the Rules of Court the here within listed below Service, was successful October 19, 2009 as evidenced by Copy of a Affidavit of Service by Process Server George Mallai Dated, November 9th, 2009 including the following documents: 1. Copy of a Claim for Lien Dated April 16, 2009; 2. Copy of a Certificate of Pending Litigation Dated April 21, 2009; 3. Copy of a Notice of Action (Form 16 B) Dated April 21, 2009; 4. Copy of a Statement of Claim (Form 16 C) Dated May 20, 2009; 5. Copy of a Amended Statement of Claim (Form 16 C) Dated Aug 21, 2009. 131. It is significant and noteworthy that reports from the Canadian Process

Servers Inc, indicated unsuccessful service attempts. The process server George Mallai was of the opinion that Betty Rose Danielski was in deed avoiding Court Document Service. Consequently, further expense was incurred by Plaintiff Andre Murray as multiple return visits where required by process server George Mallai of Canadian Process Servers Inc to Betty Rose Danielskis Residence and place of employment. Noteworthy is that the successful Service of Court Documents upon Betty Rose Danielski by

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Process Server George Mallai effected subsequent correspondence attempts and revealed a significant change in apparent attitude of Betty Rose Danielski as a contingency Service attempt, sent UPS registered Mail, by Plaintiff Andre Murray to two different locations, additional copies of the above referenced documents, one set to the Defendant Betty Rose Danielskis residence was for the first time accepted, claimed and signed for by Betty Rose Danieslki, after the above mentioned Process Server George Mallai was successful in person service and a second set which was claimed and signed for which was sent to Fudger House, the place of work of the Defendant Betty Rose Danielski. 132. Subsequent to service of the here within above listed Court documents

served upon Defendant Betty Rose Danielski, Plaintiff did not receive service of the Defendants Notice of Intent to Defend, or Demand for Particulars, at any time. The Plaintiff did not receive a phone call, email, regular post mail or registered mail regarding the here within subject Court documents. I, Plaintiff Andre Murray, am unaware of any attempt of personal Service upon myself and or registered mail attempts by the Defendant of the above mentioned Defendants Notice of Intent to Defend, or Demand for Particulars, nor to the Plaintiffs knowledge does a AFFIDAVIT of SERVICE to that affect exist within the Court files. 133. The first time the Plaintiff, became aware of Defendant Betty Rose

Danielski having retained the services of Solicitor Thomas Christie was not until the Plaintiff Andre Murray Searched the Court File at Court Client Services (Court File Number: F/C/104/09) as a preliminary act before

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crafting, filing and serving of the subject Motion for a Continuance of the Mechanics Lien Action. 134. On the 20th day of April, 2010, Plaintiff Andre Murray served Solicitor

E. Thomas Christie, for Defendant BETTY ROSE DANIELSKI , with Court File Number: F/C/104/09 a Notice of Motion with supporting Affidavit by sending a electronic facsimile of the documents accompanied by a cover page by telephone transmission to Fax: (506) 472 2091 of CHRISTIE LAW OFFICE, solicitor for Defendant BETTY ROSE DANIELSKI. 135. The affidavit in support of the here within above mentioned Motion,

detailed the reasons for the delay of the Discovery process pursuant to the Mechanics Lien Act further justifying the lack of forward movement of the subject action thus far inter alia necessary for the requested Order for a continuance of the Mechanics Lien Action. Communication The Plaintiff received no reply from the Solicitor for the Defendant on this matter; not by phone, email, regular post letter, registered mail, or other wise any other form of communication regarding the here within subject matter of the requested Order for a continuance of the Mechanics Lien Action. 136. The Plaintiff, on the 31st day of May, 2010 served Solicitor for

Defendant BETTY ROSE DANIELSKI, E. Thomas Christie, with the Amended Notice of Motion and supporting Affidavit #2 by sending a facsimile of the documents accompanied by a cover page by telephone transmission to Fax: (506) 472 2091 of CHRISTIE LAW OFFICE, solicitor for Defendant BETTY ROSE DANIELSKI.

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137.

The Plaintiff, on the 31st day of May, 2010 served Solicitor for

Defendant E. Thomas Christie, with the Plaintiffs letter to the Defendant requesting Consent to a Continuance Dated May 31, 2010, by sending a facsimile of the documents accompanied by a cover page by telephone transmission to Fax: (506) 472 2091 of CHRISTIE LAW OFFICE, agents for Defendant BETTY ROSE DANIELSKI 138. The Plaintiff, on the 31st day of May, 2010 served Solicitor for

Defendant BETTY ROSE DANIELSKI, E. Thomas Christie, QC with the Plaintiff Andre Murrays letter to the Defendant requesting Documents pursuant to the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 32(1), Dated May 31, 2010, by sending a facsimile of the documents accompanied by a cover page by telephone transmission to Fax: (506) 472 2091 of CHRISTIE LAW OFFICE, solicitor for Defendant BETTY ROSE DANIELSKI. 139. No response was received to the above mentioned three separate

facsimiles, sent the 31st day of May, 2010, by the Plaintiff furthermore, never received a reply by phone, email, regular post letter, registered mail letter or other wise any form of communication know to the Plaintiff. 140. Fri, Jun 4, 2010 at 3:40 PM was the first time Plaintiff Andre Murray

received an e-mail from Solicitor Thomas Christie. 141. The Plaintiff Andre Murray replied to Solicitor Thomas Christie the

above mentioned email correspondence of Fri, Jun 4, 2010 at 3:40 PM,

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from Solicitor Thomas Christie on date Mon, Jun 7, 2010, by e-mail including two e-mails detailing the issues that I was concerned with, as follows: In response to your request contained there in, I must respond, that, to date, I have never received any documents from your office whatsoever. Notice: I have a problem with my neighbor, whom is for some unexplainable reason, of the habit, that he must cause me to not receive my Canada Post Mail. Furthermore, I have documented evidence of this same neighbor intercepting courier delivery of my correspondence ultimately causing it to never arrive and subsequently refusing to surrender same. In light of the following, I kindly request that all correspondence which must be sent to me, and is required service according to the Rules of Court, further, that it be sent by Registered Mail only. Furthermore, kindly provide the tracking number to me directly by email that I may intercept the delivery of same. Obviously this, in light of the following circumstances, will expedite matters. 142. Further to that point, in the same two above mentioned letters, the

Plaintiff Andre Murray requested of the Solicitor Thomas Christie for the Defendant, confirmation that the recently faxed documents had been received successfully as follows: Question: Please confirm that you received my faxed documents sent 05/31/2010 03:07 PM which included 40 pages, consisting of Amended Notice of Motion dated 31st day of May, 2010 and supporting Affidavit 2 Dated 31st day of May, 2010 Also; Please confirm that you received my faxed documents sent 05/31/2010 03:17 PM which included a correspondence Letter of inquiry regarding Court File Number F/C/104/09 and request of your Client Defendant Betty Rose Danielski and her cooperation by

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consenting to a Continuance of the Mechanics Lien Action pursuant to section 52.1 (1) (b) of the Mechanics Lien Act. Also; Please confirm that you received my faxed documents sent 05/31/2010 03:14 PM which included a correspondence Letter regarding Lienholders Right to Information Mechanics Lien Act, R.S.N.B. 1973, c. M_6 Kindly respond to all of the above at your earliest convenience. Nothing more implied . I trust you find the following agreeable. 143. The here within above mentioned two Jun 7, 2010 e-mails where never

to the Plaintiffs knowledge replied to. 144. The Plaintiff Andre Murray, did receive a series of e-mails from

Solicitor Thomas Christie and replied in kind, from July 19 to July 22, 2010. The essence of the e-mails received from Solicitor Thomas Christie initially insisted that his client the Defendant (Respondent in that matter) must be provided with a copy of the Transcript from the June 10, 2010 Hearing. The following position of Thomas Christie was contrary to normal practice according to client services at Court of Appeal also the Court Reporter insisted that this was incorrect behavior furthermore, that proper conduct would have been that Thomas Christie himself should commission a Certified copy from the Court Reporter at his own expense and should not be bothering Andre Murray with such matters. 145. (Appellant in that matter) Plaintiff Andre Murray, received a e-mail

correspondence from Solicitor Thomas Christie instructing the Defendant (Respondent in that matter) that Andre Murray must serve any AMENDED

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pleading upon him at a date earlier than the Rules of Court dictate because Solicitor Thomas Christie had previously scheduled a vacation which required him receiving Court Document Service to the satisfaction of Solicitor Thomas Christie. 146. The Appellant Andre Murray, in a series of e-mails of September 2,

2010, out of courtesy attempted to bring attention to a Fax sent the same day as follows: As you are aware of my facsimile of this same day .... thought I would take this opportunity, regarding Certificate of Readiness' (FORM62HH) To which Solicitor Thomas Christie did not confirm receiving the same Fax. 147. Further in the same e-mail of September 2, 2010, the Plaintiff Andre

Murray requested of Solicitor Thomas Christie to be provided with the estimated time Solicitor Thomas Christie required for presentation to the Court of Appeal as follow: Dear sir ... we must confer, as to the estimated time required, that, which shall be scheduled, with the Court of Appeal, as is provided for, within a 'Certificate of Readiness'. 148. Furthermore in a follow up email 9 minutes after sending the first

September 2, 2010 e-mail to Solicitor Thomas Christie the Plaintiff (Appellant in that matter) asked the question of the Respondent (in that matter) as follows:

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Hello Thomas Christie, Please explain as to why, to date, all of the documents submitted, on behalf of Betty Rose Danielski and coming from your office have the Betty underlined!? 149. The Solicitor Thomas Christie for the Defendant (Respondent in that

matter) delayed 5 days, and finally on September 7, 2010 one of the Plaintiff s (Appellant in that matter) September 2, 2010 e-mails was replied to, but not the an other email concerning the very peculiar underlined name of Betty Rose Danielski the Defendant (Respondent in that matter). The Plaintiff (Appellant in that matter) again resent the e-mail concerning the very peculiar underlined name of Betty Rose Danielski the Respondent. No e-mail has ever been returned to the Plaintiff (Appellant in that matter) in this regard. 150. The Plaintiff (Appellant in that matter) was never served with

AFFIDAVIT of Betty Rose Danielski, prior to the June 10, 2010, Court of Queens Bench hearing. 151. Subsequently, the Plaintiff (Appellant in that matter) provided the

Defendant (Respondent in that matter) with the appropriate list of intended documents, to be used, at the hearing of the Court of Appeal. This occurred in a timely manner, furthermore, the list evidently was not to the satisfaction of the Solicitor for the Defendant (Respondent in that matter) as he made it known that he desires that the Plaintiff (Appellant in that matter) must provide documents to his liking (this included an act of coercion wherein it is a communicated intent to inflict harm or loss on another for lack of performance). Solicitor Thomas Christie protested the absence of certain Documents. The Solicitor for the Defendant

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(Respondent in that matter) did not stop with unpleasant e-mail correspondence between himself and sent to the Plaintiff (Appellant in that matter). However, the Solicitor continued to pursue this penchant until he was actually speaking to the Clerks at Court of Appeal Office attempting to persuade them that Plaintiff (Appellant in that matter) Andre Murray must now provide a supplementary Appeal Book et cetera. When the Plaintiff (Appellant in that matter) responsibly investigated the matter further, it was found that the inclusion of any material for the appeal was to the discretion of the Plaintiff (Appellant in that matter) and not in fact necessary to satisfy the Solicitor for the Defendant (Respondent in that matter) as had been postured by the Solicitor for the Defendant (Respondent in that matter). 152. The Solicitor for the Defendant (Respondent in that matter) did not

Process Serve the Respondents Submission upon the Plaintiff (Appellant in that matter) within the prescribed time allowable by Rules of Court; time limits, in this case requiring service no later than October 20, 2010. The Solicitor for the Defendant (Respondent in that matter) had been placed on NOTICE Mon, Jun 7, 2010, by e-mail, which is quoted below: In light of the following, I kindly request that all correspondence which must be sent to me, and is required service according to the Rules of Court, further, that it be sent by Registered Mail only. Furthermore, kindly provide the tracking number to me directly by email that I may intercept the delivery of same. Obviously this, in light of the following circumstances, will expedite matters. 153. Despite the here within provided copy of above Jun 7, 2010, NOTICE,

the Plaintiff (Appellant in that matter) was not served October 20, 2010, with the Defendants (Respondent in that matter) Submission. At 2:00 PM

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on October 20, 2010, Plaintiff (Appellant in that matter) Andre Murray sincerely telephoned Client Services of the Court of Appeal (several times) October 20, 2010, enquiring after the Defendants (Respondent in that matter) Submission. Plaintiff (Appellant in that matter) Andre Murray was told that the Defendants (Respondent in that matter) Submission had not yet been filed. 154. October 20, 2010, Plaintiff (Appellant in that matter) Andre Murray

telephoned the Office of the Solicitor for the Defendant (Respondent in that matter), several times, but was unsuccessful at reaching the Solicitor for the Defendant (Respondent in that matter). 155. On Thursday, October 21, 2010, Plaintiff (Appellant in that matter)

Andre Murray again telephoned the Office of the Solicitor for the Defendant (Respondent in that matter), several times, but was unsuccessful at reaching the Solicitor for the Respondent. 156. October 22, 2010, Plaintiff (Appellant in that matter) Andre Murray

retrieved a telephone message from Court of Appeal Client Services, the message conveyed that Solicitor for the Defendant (Respondent in that matter) had indeed filed a Defendants (Respondent in that matter) Submission, approximately 4 pm October 20, 2010, and claimed to have emailed a copy of the document to the Appellant, although, Court Registrar Micheal Bray confirmed that the Service by e-mail was not in fact considered Service on a non solicitor according to the Rules of Court.

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157.

On Friday, October 22, 2010, at approximately 8:30 AM, Plaintiff

(Appellant in that matter) Andre Murray telephoned the Office of the Solicitor for the Defendant (Respondent in that matter), and did reach the Solicitor Thomas Christie for the Defendant (Respondent in that matter). Plaintiff (Appellant in that matter) Andre Murray verbalized that the Plaintiff (Appellant in that matter) had not yet received a copy of the Respondents Submission, furthermore, confirmed that the Plaintiff (Appellant in that matter) must be served according to the Rules of Court. The Solicitor for the Defendant (Respondent in that matter) replied that my request was not able to be granted as he (Respondents Solicitor) was currently preparing to leave Fredericton for destination Woodstock. Furthermore, that Plaintiff (Appellant in that matter) Andre Murray must attend his Office Mail box on Monday (3 days later) at which time the Respondents Submission would be available. The Defendants (Respondent in that matter) Solicitor protested that, Plaintiff (Appellant in that matter) should not wish to wait until Monday. Again, offered to leave a copy in the mail box of his office on Monday for Plaintiff to pick up. The Plaintiff (Appellant in that matter) stated that, the mail box offer would not suffice and wished to have a copy sent to Plaintiff right-way, and Plaintiff (Appellant in that matter) Andre Murray suggested, offering, that local couriers could accomplish the Document Process Service job that very same day as it was still early morning . Courier Service was rejected by Thomas Christie and instead, the Plaintiff (Appellant in that matter) was offered Service by facsimile or e-mail of the document. The Plaintiff (Appellant in that matter) informed the Solicitor for the Defendant (Respondent in that matter) that e-mail and facsimile is not considered service, upon a non solicitor, according to the rules of Court. Thomas

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Christie persisted inquiring if my e-mail address was the same as the court document indicated. The Plaintiff (Appellant in that matter) indicated that the Plaintiff (Appellant in that matter) did not wish a copy sent by email because this is not considered Court Document Service according to the Rules of Court. However, the Plaintiff (Appellant in that matter) was told that a copy was and or would be sent as a courtesy and would not be considered service. The Plaintiff restated, that, the only way the Plaintiff wished to be served was by Registered Mail. Christie then stated that the document would be mailed but would not give a time frame by which that would happen, and the Solicitor for the Defendant (Respondent in that matter), quickly ended the conversation, stating that other matters where more pressing. 158. On October 22, 2010, immediately, following a telephone conversation

with the Solicitor for the Defendant (Respondent in that matter), Plaintiff (Appellant in that matter) Andre Murray corresponded by electronic facsimile a letter to the Solicitor for the Defendant (Respondent in that matter), confirming my position, further, my requirements regarding the matter of Court Document Service upon the Plaintiff (Appellant in that matter) 159. On Monday, October 25, 2010, Plaintiff (Appellant in that matter)

Andre Murray, received an envelope in the residential mail box, which had the return address of the Office of the Solicitor for the Defendant (Respondent in that matter), the contents of the envelope was the Respondents Submission. The contents of the envelop was lacking a Acknowledgement of Receipt Card and acquisition of the envelope

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required no signature, contrary to the Rules of Court 18.03 and despite the request, as earlier here within above mentioned, the request made to the Solicitor for the Defendant (Respondent in that matter), who was placed on NOTICE Mon, Jun 7, 2010, by email. The Plaintiff (Appellant in that matter) offers that the Defendants (Respondent in that matter) Submission document was received by the Plaintiff (Appellant in that matter) 5 days late, according to the rules of court, and still had not been properly served according to the rules of Court. 160. 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). 161. 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). 162. Solicitor E. Thomas Christie for Defendant Betty Rose Danielski, has

not to date (Plaintiff Andre Murray searched the file on Wednesday, February 9, 2011) filed with the Court of Queens Bench Trial Division,

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Judicial District of Fredericton, a Statement of Defense, as required to by the Rules of Court Rule27.04(2) and 20.02(b). 163. Provided below are the Rules of Court which the Defendant has not

adhered to date. 18.02 How Personal Service Shall be Made (1) Personal service shall be made as follows: Individual (a) on an individual, other than a person under disability, by leaving a copy of the document with him; Service by Prepaid Mail or Prepaid Courier (3) Where personal service of a document may be made by leaving a copy with a person pursuant to Rule 18.02(1), such service may be made anywhere in Canada by sending a copy of the document, together with an Acknowledgement of Receipt Card (Form 18A), by prepaid mail or prepaid courier addressed to the person at the last known address of the person. (4) Service by prepaid mail or prepaid courier shall be deemed to have been effected only if any one of the following is returned to and received by the sender: (a) the Acknowledgement of Receipt Card bearing a signature which purports to be the signature of the person to whom the document was sent; (b) a post office receipt bearing a signature which purports to be the signature or a copy of the signature of the person to whom the document was sent; (c) any other form of acknowledgement of receipt in writing bearing a signature which purports to be the signature or a copy of the signature of the person to whom the document was sent; or (d) confirmation in writing from the carrier that the

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document was delivered to the person to whom the document was sent. (5) Service by prepaid mail or prepaid courier shall be deemed to have been effected on the date the sender receives a receipt or confirmation under paragraph (4). RULE 20 TIME FOR DELIVERY OF STATEMENT OF DEFENCE 20.01 Time for Filing and Serving Statement of Defence Subject to Rule 20.02, a Statement of Defence (Form 27A) shall be filed and served (a) within 20 days after service of the Statement of Claim where the defendant is served in New Brunswick, (b) within 40 days after service of the Statement of Claim where the defendant is served elsewhere in Canada or in the United States of America, or (c) within 60 days after service of the Statement of Claim where the defendant is served anywhere else. 20.02 Notice of Intent to Defend (1) Any defendant served with a Statement of Claim who intends to defend the action may, within the time limited for filing and serving his Statement of Defence, file and serve a Notice of Intent to Defend (Form 20A). (2) Any defendant who files and serves a Notice of Intent to Defend within the time limited for so doing, shall have an additional 10 days within which to file and serve his Statement of Defence, and he shall be deemed to have submitted to the jurisdiction of the court. 27.01 Pleadings Required or Permitted (1) In an action, pleadings consist of the Statement of Claim and a Statement of Defence (Form 27A) and may include a Reply (Form 27B).

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27.03 Service of Pleadings Who is to be Served (1) Every pleading shall be served (a) initially on every opposite party and on every other party who has filed and served a pleading or a Notice of Intent to Defend in the action or in a counterclaim, cross-claim or third or subsequent party claim in the action, and (b) subsequently on every other party forthwith after he files and serves a pleading or a Notice of Intent to Defend in the action or in a counterclaim, cross-claim or third or subsequent party claim in the action. 27.04 Time for Filing and Serving Pleadings (1) The time for filing and serving a Statement of Claim is prescribed by Rule 16.08. (2) The time for filing and serving a Statement of Defence is prescribed by Rule 20.01. (3) A Reply shall be filed and served within 10 days after service of the Statement of Defence. 27.08 Particulars (1) Where a party files and serves a Demand for Particulars (Form 27L) demanding particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply sufficient particulars within 10 days after service of the demand, the court may, upon such terms as may be just, order that such particulars be filed and served within a specified time. (2) Where a party demands particulars for the purpose of pleading, he shall have the same length of time (a) after receipt of the particulars, or

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(b) after failure to supply sufficient particulars as provided in paragraph (1), to serve such pleading as he had when the demand was served, but such length of time shall not be less than 5 days. (3) The Statement of Particulars (Form 27M) shall be served on all parties and filed with the clerk. 164. 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.

Cost Orders in favor of self-represented litigants 165. In 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), as follows: IV. Conclusion and Disposition [41] The Rules of Court invoked by the respondent, Co-Operators General Insurance Co., in support of its motion for dismissal of the appellants action, Rules 23.01(2)(a) and (b), have no application here. Those rules do

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not allow for the determination prior to trial of the appellants entitlement to damages from Co-Op for its alleged bad faith in the handling of his SEF #44 claim. Moreover, the defence relied upon by Co-Op, res judicata, does not come into play since there is no prior judicial decision susceptible of triggering its application. For those reasons, and after hearing the parties, we allowed the appeal and brought the proceedings to a close with the following ancillary orders. [42] Mr. McNichol asked for the immediate reimbursement of the costs and disbursements that he was required to pay pursuant to the judgment under appeal. His entitlement to that relief being unarguable, we so ordered. [43] Mr. McNichol, who is selfrepresented, also requested costs on the motion in the court below and on appeal. In Proenca v. Squires Home Improvements and Total Renovations Ltd. 2001 NBCA 45 (CanLII), (2001), 252 N.B.R. (2d) 274 (C.A.), Deschnes, J.A., writing for a unanimous court, makes the following observations regarding the appropriateness of cost orders in favor of self-represented litigants at paras. 19-20: The trial judge awarded costs of $1,500.00 to the Proencas to be paid by Squires. The Proencas, however, are unrepresented lay litigants and as party and party costs are generally intended to partly indemnify the recipient for the cost he or she must pay his or her own lawyer, such costs are not usually allowed to unrepresented litigants. See Bolands Ltd. v. Buckley and 052897 N.B. Ltd. reflex, (1997), 186 N.B.R. (2d) 72. (N.B.C.A.) and Harris v. Harris 1991 CanLII 2663 (NB Q.B.), (1991), 122 N.B.R. (2d) 1. Rule 59.01, however, makes it clear that costs are in the discretion of the trial

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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. Please see an excellent discussion in M.M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, ON: Carswell, 2000) at 209.15 entitled "Party in Person". Please also see: Fong v. Chan 1999 CanLII 2052 (ON C.A.), (1999), 46 O.R. (3d) 330 (Ont. C.A.). Please See, as well:, Skidmore v. Blackmore 1995 CanLII 1537 (BC C.A.), (1995), 2 B.C.L.R. (3d) 201 (C.A.); Huet v. Lynch 2001 ABCA 37 (CanLII), (2001), 91 Alta. L.R. (3d) 1 (C.A.); Dechant v. Stevens 2001 ABCA 39 (CanLII), (2001), 89 Alta. L.R. (3d) 246 (C.A.) and Collins v. Collins 1999 ABQB 707 (CanLII), (1999), 72 Alta. L.R. (3d) 300 (Q.B.). [44] After due consideration, we concluded that the case at bar was one that called for the exercise of our discretion under Rule 59.01 in a manner favorable to the self-represented litigant. We came to that conclusion primarily because of the frivolous nature of Co-Ops motion for dismissal under Rules 23.01(2)(a) and (b), and the improper and inaccurate evidence provided at the hearing in the court below by counsel for Co-Op concerning Mr. McNichols testimony at discovery. In the result, we ordered Co-Op to pay costs throughout, which were fixed at $5,000, in addition to all reasonable disbursements. [45] Finally, we referred back to the Court of Queens Bench the determination of the outstanding discovery-related prayers for relief in Co-Op's motion. In closing, we express the hope that the parties will make every

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reasonable effort to resolve their dispute on that subject and, more generally, that they will cooperate in securing the just, least expensive and most expeditious determination of the action on its merits. 166. 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. 167. 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. 168. For convenience of this Honorable Court Rule 59.01, of the Rules of

Court is reproduced below as follows: 59.01 Authority of the Court (1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid. 169. 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

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

Co-operators General Insurance Company, 2006, supra, this Honorable 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. 171. In 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 selfrepresented lay litigants to recover Costs. (Please see below, from paragraph 15 though to and including paragraph 27), as follows: [15] The appellant relies on a number of decisions, discussed below, on the right of self-represented lay litigants to recover costs. The appellant submits that those cases establish that lay litigants may be awarded costs, including counsel fee, and that it follows that self-represented solicitors must be similarly entitled. [16] Dicta from the Chorley case, supra, was long thought to preclude recovery by self-represented lay litigants of any costs beyond disbursements. In Chorley, the English Court of Appeal stated that the opportunity cost rationale did not apply to selfrepresented lay litigants. In the courts view, a selfrepresented litigant who is not a solicitor should not be entitled to recover costs as such a party does not bring professional skill and competence to the case and a litigants own time and trouble is not a pecuniary loss which the law can measure. Bowen L.J. held that the common law rule precluded recovery, but noted that the Court of Chancery had on occasion

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allowed a reasonable allowance for the self-represented litigants loss of time. He quoted a leading text on Chancery practice, Lushs Practice (3d ed.) at 896: A party not an attorney, suing or defending in person, is entitled to no more than his expenses out of pocket or at most to a reasonable allowance beyond for his loss of time. [17] In more recent times, the English courts recognized the inconsistency of allowing self-represented lawyers to recover for their time while refusing the same right to lay litigants. In Buckland v. Watts [1970] 1 Q.B. 27 at 31, Donaldson J. observed that in principle the opportunity cost rationale applied equally to self-represented lay litigants, and that their time could be compensated with appropriate modification for lack of professional skill and training. However, Donaldson J. held that he was not free to depart from past authority, and he disallowed the lay litigants claim. His decision was upheld on appeal: [1970] 1 Q.B. 27 at 35-38. The anomaly in the United Kingdom was removed by legislation that now allows lay litigants to recover costs: Litigants in Person (Costs and Expenses ) Act (U.K.), 1975, c. 47. [18] In an early Ontario case, Millar v. Macdonald (1892), 14 P.R. 449 (Div. Ct.) at 501, the Chancery rule, referred to above, was applied. Boyd C. held that the successful self-represented defendant was to be awarded disbursements and some allowance, but of a moderate description, for his time and trouble on the argument. Boyd C. noted, however, that the award was exceptional, and was made because the defendant had been faced with committal for contempt. [19] While there appears to be little Ontario authority on the subject, appellate courts in two provinces have held that selfrepresented lay litigants may be awarded costs. In Macbeth v. Dalhousie College and University (1986), 10 C.P.C. (2d) 69, the Nova Scotia Court of Appeal held that a self-represented lay litigant was entitled to recover costs primarily on the basis that the common law rule precluding such recovery constituted a denial of equality rights guaranteed by s. 15 of Charter of Rights and Freedoms. This reasoning was superceded by subsequent

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decisions of the Supreme Court of Canada precluding the direct application of the Charter to common law rules governing litigation between private parties (Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd., 1986 CanLII 5 (S.C.C.), [1986] 2 S.C.R. 573) and insisting on the need to establish discrimination on an enumerated or analogous ground to support a s.15 claim (Andrews v. Law Society of Upper Canada, [1989] 1 S.C.R. 143). In Law Society of Prince Edward Island v. Johnston, 1988 CanLII 1365 (PE S.C.A.D.), (1988), 54 D.L.R. (4th) 18, the Prince Edward Island Court of Appeal, referring to Dolphin Delivery, supra, held that the Charter did not apply to the claim of a self represented litigant to costs. That court also rejected the claim on the ground that costs could only be awarded on an indemnity basis. [20] The British Columbia Court of Appeal arrived at the same result achieved in the Macbeth case without resort to the Charter. In Skidmore v. Blackmore 1995 CanLII 1537 (BC C.A.), (1995), 122 D.L.R. (4th) 330, a five judge panel of the British Columbia Court of Appeal overruled the courts earlier decision in Kendall v. Hunt (1979), 106 D.L.R. (3rd) 277, which held that self-represented litigants could not recover costs in excess of disbursements. In Skidmore, the court found that the 19th century English rule reflected by the Chorley and Buckland cases could no longer be justified. Cumming J.A. pointed out that modern cost rules reflected a variety of purposes. While indemnity remained one important element, costs were also ordered or withheld as a means of controlling behaviour by discouraging frivolous suits or meritorious defences, and as a way of sanctioning unnecessary steps in litigation, as well as misconduct by litigants or their counsel. Modern costs rules also were designed to promote and encourage settlements. In Cumming J.A.s view, it was important for the court to have at its disposal full costs sanctions, whether litigants were represented or unrepresented. Moreover, the refusal to allow self-represented costs on indemnity grounds was difficult to justify as the time is money rationale applies every bit as much to the lay litigant as to the self-represented lawyer. Cumming J.A. noted that any difficulty in measuring the

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amount to which the lay litigant is entitled could be answered in British Columbia by strict application of the tariff. Finally, it was held that the court was competent to effect this change in the common law as (at 342) the matter of costs is a question essentially within the discretion of the court, it bears directly on matters of practice, and it is something on which this court is well situated to rule. [21] It is apparent from this review of the case law that the preponderance of modern authority supports the contention that both self-represented lawyers and self-represented lay litigants may be awarded costs and that such costs may include allowances for counsel fees. Since the Chorley decision in 1884, it seems not to have been doubted that self-represented solicitors could recover costs for solicitors fees. The respondents did not take issue with that proposition on this appeal. Johnson v. Ryckman, supra stands for the proposition that a self-represented solicitor could not recover anything for counsel fee, but as I have already noted, it was acknowledged in that case that there seemed to be no rationale for the rule. I am not persuaded by the respondents submission that this 1903 case, which rests on such a shaky foundation, should continue to govern us today. Johnson v. Ryckman has been superceded by more recent cases that have quite properly ignored the untenable distinction between solicitors fees and counsel fees. I can see no reason for maintaining the distinction between solicitors fees and counsel fees that was already outmoded almost one hundred years ago. The legislatures decision to allow parties to recover costs in relation to the work of salaried employees provides added impetus to reject the view that self-represented solicitors should be precluded from recovering costs. Two provincial appellate courts have held that lay litigants may recover costs, including counsel fees. The clear trend of both the common law and the statutory law is to allow for recovery of costs by self-represented litigants. [22] Quite apart from authority and as a matter of principle, it seems to me to be difficult to justify a categorical rule denying recovery of costs by self-represented litigants. As noted in the Fellowes McNeil, supra and in Skidmore, supra, modern cost rules

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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. It seems to me that all three purposes are fostered by allowing the trial judge a discretion to award costs to self-represented litigants. [23] Since the Chorley case over one hundred years ago, it had been accepted that self-represented lawyers are entitled to indemnity on the time is money or opportunity cost rationale. It is difficult to see why the opportunity cost rationale should not be more generally applicable to self-represented litigants. The self-represented lawyer possesses legal skills, but lacks professional detachment when acting in his or her own cause. If the law is prepared to compensate lawyers for this loss of time when devoting their efforts to their own cause, I fail to see any basis for denying the same entitlement to self-represented lay litigants who are able to demonstrate the same loss. [24] A rule precluding recovery of costs, in whole or in part, by self-represented litigants would deprive the court of a potentially useful tool to encourage settlements and to discourage or sanction inappropriate behaviour. For example, an opposite party should not be able to ignore the reasonable settlement offer of a self-represented litigant with impunity from the usual costs consequences. Nor, in my view, is it desirable to immunize such a party from costs awards designed to sanction inappropriate behaviour simply because the other party is a self-represented litigant. [25] I would add that nothing in these reasons is meant to suggest that a self-represented litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge, and as Ellen Macdonald J. observed in Fellows, McNeil v. Kansa, supra, there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be cases where the self-represented litigants conduct of the proceedings is inappropriate. The trial judge maintains a discretion to make the appropriate costs award, including denial of costs.

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[26] I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The selfrepresented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. 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. As the early Chancery rule recognized, a self-represented lay litigant should receive only a moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a selfrepresented litigant, and accordingly, the trial judge should 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. CONCLUSION [27] For these reasons, I would allow the appeal, and set aside the Certificate. It is still necessary to determine whether the amounts claimed for the salaried associates, partners and articling student are reasonable. Accordingly, I would refer the matter back to the Assessment Officer with a direction that the costs be assessed in accordance with these reasons. The appellant is also entitled to costs of the Assessment and of this appeal. 172. 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

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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. 173. 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. 174. 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. 175. 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. 176. Self-represented lawyers are entitled to indemnity on the time is

money or opportunity cost rationale and it is difficult to see why the

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opportunity cost rationale should not be more generally applicable to selfrepresented litigants, such as the Plaintiff in this matter before this Honorable Court. 177. 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. 178. 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 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. 179. 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. 180. 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.

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ALL OF THIS respectfully submitted this 10th day of February, 2011. ____________________ Plaintiff Andr Murray

D PART VI ORDERS SOUGHT 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. E LISTED AUTHORITIES

SCHEDULE A

1. Reference: Prejudice is defined by Black's Law Dictionary (8th ed. 2004), at Page 3738
2. 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 3. Reference: Novotny v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14762 (F.C.) MR. JOHN A. HARGRAVE,

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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 4. Reference: Fair is defined by at Merriam Webster online at the following: address: http://www.merriam-webster.com/dictionary/fair 5. Reference: Black's Law Dictionary (8th ed. 2004), defines fair, (Please see at at Page 1788) 6. Reference: audi alteram partem is found at

legal-

dictionary.thefreedictionary.com Please see at the following address: http://legal-dictionary.thefreedictionary.com/audi+alteram+partem 7. Reference: audi alteram partem found at wikipedia.org Please see at the following address: http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua

8. Reference: audi alteram partem found at duhaime.org Please see at the following address: http://www.duhaime.org/LegalDictionary/A/Audialterampartem.aspx 9. Reference: audi alteram partem found at wikipedia.org Please see at the following address: http://en.wikipedia.org/wiki/Audi_alteram_partem

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10. Reference: Black's Law Dictionary (8th ed. 2004), defines merits Please see at Page 3136 11. Reference: Black's Law Dictionary (8th ed. 2004), defines Construe Please see at Page 947 12. Reference: Black's Law Dictionary (8th ed. 2004), defines Just Please see at Page 2526 13. Reference: Merriam-webster.com defines merit Please see at the following address (http://mw4.merriam-webster.com/dictionary/merits) 14. Reference: on merits is defined by legal-dictionary.com Please see at the following address: http://legal-dictionary.thefreedictionary.com/on+the+merits on the merits 15. 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. found at the following address: http://www.canlii.org/en/nb/nbqb/doc/1995/1995canlii6205/1995canlii 6205.html (Please see at page 9 to page 17).

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16. Reference: Western Surety Co. v. National Bank of Canada, 2001 NBCA 15 (CanLII) J. ERNEST DRAPEAU, J.A.. address: http://www.canlii.org/en/nb/nbca/doc/2001/2001nbca15/2001nbca15.ht ml 17. Reference: Black's Law Dictionary (8th ed. 2004), defines enjoin Please see at Page 1608 18. 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 19. Reference: Furthermore in LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) RIDEOUT, J. stated regarding applying Rule Rules 1.03(2); 2.02; 3.02(1) and (2) (Please see at paragraph 11 to 19) at the following address: http://www.canlii.org/en/nb/nbqb/doc/2005/2005nbqb142/2005nbqb14 2.html regarding application of Rule 2.02 (Please see at paragraph 91) at the following

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20. 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 21. Reference: In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A. LaVIGNE stated the following regarding granting an extension of time following address:
http://www.canlii.org/en/nb/nbqb/doc/2003/2003nbqb454/2003nbqb454.html

(Please see at paragraph 15 42), at the

22. Reference: As stated in Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.) by Justice LASKIN J.A : 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 (Please see at paragraph 16) at the following address http://www.canlii.org/en/on/onca/doc/2000/2000canlii3904/2000canlii3 904.html 23. 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 24. 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); (may it please the Court; at paragraph 6) url link is provided below:: http://www.canlii.org/en/nb/nbca/doc/2006/2006nbca2/2006nbca2.html 25. 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 26. 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:: http://www.canlii.org/en/nb/nbca/doc/2003/2003nbca79/2003nbca79.ht ml 27. 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.

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(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 F SCHEDULE B TEXT OF RELEVANT PROVISIONS OF STATUTES OR REGULATIONS Statutes 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.

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. 2.01 The Court Dispensing with Compliance The court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 2.02 Effect of Non-Compliance A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute

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between the parties. In particular, the court shall not set aside any proceeding because it ought to have been commenced by an originating process other than the one employed. 2.03 Attacking the Regularity of Proceedings A motion to attack a proceeding for irregularity shall be made within a reasonable time, and shall not be allowed if the party applying has taken a further step in the proceeding after having knowledge of the irregularity. 18.02 How Personal Service Shall be Made (1) Personal service shall be made as follows: Individual (a) on an individual, other than a person under disability, by leaving a copy of the document with him; 18.03 Other Ways to Effect Personal Service Where available (1) With the exception of Rules 33.03 and 55.03, where personal service is required by these rules, any appropriate method of service authorized by this subrule may be used. Service by Prepaid Mail or Prepaid Courier (3) Where personal service of a document may be made by leaving a copy with a person pursuant to Rule 18.02(1), such service may be made anywhere in Canada by sending a copy of the document, together with an Acknowledgement of Receipt Card (Form 18A), by prepaid mail or prepaid courier addressed to the person at the last known address of the person. (4) Service by prepaid mail or prepaid courier shall be deemed to have been effected only if any one of the following is returned to and received by the sender: (a) the Acknowledgement of Receipt Card bearing a signature which purports to be the signature of the person to whom the document was sent;

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(b) a post office receipt bearing a signature which purports to be the signature or a copy of the signature of the person to whom the document was sent; (c) any other form of acknowledgement of receipt in writing bearing a signature which purports to be the signature or a copy of the signature of the person to whom the document was sent; or (d) confirmation in writing from the carrier that the document was delivered to the person to whom the document was sent. (5) Service by prepaid mail or prepaid courier shall be deemed to have been effected on the date the sender receives a receipt or confirmation under paragraph (4). 20.01 Time for Filing and Serving Statement of Defence Subject to Rule 20.02, a Statement of Defence (Form 27A) shall be filed and served (a) within 20 days after service of the Statement of Claim where the defendant is served in New Brunswick, (b) within 40 days after service of the Statement of Claim where the defendant is served elsewhere in Canada or in the United States of America, or (c) within 60 days after service of the Statement of Claim where the defendant is served anywhere else. 20.02 Notice of Intent to Defend (1) Any defendant served with a Statement of Claim who intends to defend the action may, within the time limited for filing and serving his Statement of Defence, file and serve a Notice of Intent to Defend (Form 20A). (2) Any defendant who files and serves a Notice of Intent to Defend within the time limited for so doing, shall have an additional 10 days within which to file and serve his Statement of Defence, and he shall be deemed to have submitted to the jurisdiction of the court. 27.03 Service of Pleadings

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Who is to be Served (1) Every pleading shall be served (a) initially on every opposite party and on every other party who has filed and served a pleading or a Notice of Intent to Defend in the action or in a counterclaim, cross-claim or third or subsequent party claim in the action, and (b) subsequently on every other party forthwith after he files and serves a pleading or a Notice of Intent to Defend in the action or in a counterclaim, cross-claim or third or subsequent party claim in the action. 27.04 Time for Filing and Serving Pleadings (1) The time for filing and serving a Statement of Claim is prescribed by Rule 16.08. (2) The time for filing and serving a Statement of Defence is prescribed by Rule 20.01. (3) A Reply shall be filed and served within 10 days after service of the Statement of Defence. (4) The time for filing and serving pleadings in a counterclaim is prescribed by Rule 28. (5) The time for filing and serving pleadings in a cross-claim is prescribed by Rule 29. (6) The time for filing and serving pleadings in a third party claim is prescribed in Rule 30. 27.08 Particulars (1) Where a party files and serves a Demand for Particulars (Form 27L) demanding particulars of an allegation in the pleading of an opposite party, and the opposite party fails to supply sufficient particulars within 10 days after service of the demand, the court may, upon such terms as may be just, order that such particulars be filed and served within a specified time. (2) Where a party demands particulars for the purpose of pleading, he shall have the same length of time (a) after receipt of the particulars, or

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(b) after failure to supply sufficient particulars as provided in paragraph (1), to serve such pleading as he had when the demand was served, but such length of time shall not be less than 5 days. (3) The Statement of Particulars (Form 27M) shall be served on all parties and filed with the clerk. 59.01 Authority of the Court (1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid. Law Society of New Brunswick Code of Professional Conduct CODE OF PROFESSIONAL CONDUCT CHAPTER FIFTEEN is provided bellow: COLLEAGUES CHAPTER 15 RULE The lawyer shall practise good faith, courtesy and collegiality in all contacts with other lawyers and with their representatives. Good faith, (professional) courtesy, collegiality 2. Without derogating from the broad application intended of the elements of the Rule in this chapter the following directives shall be observed as minimums by the lawyer in practising good faith, courtesy and collegiality as envisaged by the Rule: (iii) 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

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be prejudiced materially by agreeing to the accommodation. (v) The lawyer shall be punctual in fulfilling commitments made to another lawyer and shall respond on a timely basis to all communications from another lawyer that contemplate a reply. (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. Avoidance of sharp practice 4. The lawyer shall not engage in sharp practice in the practice of law . Without limiting this proscription 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. In addition the lawyer shall not impose upon another lawyer impossible, impractical or manifestly unfair conditions of trust including those with respect to time restraints and the payment of penalty interest .

SCHEDULE C DISCISION CITED

G LISTED AUTHORITIES FULL

1. Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) 2. Novotny v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14762 (F.C.) 3. Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) 4. Western Surety Co. v. National Bank of Canada, 2001 NBCA 15 (CanLII)

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5. Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB C.A.) 6. LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) 7. East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003 NBQB 268 (CanLII) 8. Agnew v. Knowlton, 2003 NBQB 454 (CanLII) 9. Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.) 10. Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII) 11. Blanger v. Roussel, 2006 NBCA 2 (CanLII) 12. Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.) 13. Michaud v. Robertson, 2003 NBCA 79 (CanLII) 14. Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.)

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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: ANDRE MURRAY Plaintiff, -and-

BETTY ROSE DANIELSKI Defendant, AFFIDAVIT I, Andr Murray of the City of Fredericton, in the county of York and Province of New Brunswick, MAKE OATH AND SAY AS FOLLOWS: 1. I Andr Murray as above indicated am the Plaintiff in this matter; as such have a true and correct knowledge of the matters herein deposed to except where otherwise stated. 2. I Andr Murray verily believe to be true, the entirety of the material found within as having practical importance, value, or effect, addressing the real nature and or essential matters before this Honorable Court: a) Book 1 the Plaintiffs Submission and b) Book 2 the Plaintiffs Submission Filed by Andr Murray, Plaintiff within THE COURT OF QUEENS BENCH OF NEW BRUNSWICK, TRIAL DIVISION, JUDICIAL DISTRICT OF FREDERICTON, having a File Number

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F/C/104/09. Furthermore, the Plaintiffs submission is a study, a careful examination of certain contentions, by the various parties to this Action. Plaintiff Andr Murray has here within compiled a presentation - a juxtaposition of relevant precedent establishing case law. This is foremost an attempt to reveal the reality, that, of which, underlies the events, which have occurred to date. 3. Furthermore, it must be noted, that, any arguments, found there within, (Book 1 the Plaintiffs Submission and Book 2 the Plaintiffs Submission) and presented by Plaintiff Andr Murray, are entirely supported and or confirmed, by the use of directly quoted excerpt. 4. Plaintiff Andr Murray has avoided arriving at conclusions, deduced by scanty evidence, or guesswork. Unless specifically stated otherwise, any assumption, or concession, would be made only tentatively, and for the sake of argument, in order to draw out and test its logical consequences. To assist in highlighting the discovered contradictions and or to oppose the hypothetical, by using formal legal argument, plea, or countervailing proof throughout. 5. All references found within Book 1 the Plaintiffs Submission and Book 1 the Plaintiffs Submission are based on Plaintiff Andr Murrays empirical knowledge, capable of being verified or disproved by his observation of the subject situation. 6. This affidavit is made in support of Book 1 the Plaintiffs Submission and Book 1 the Plaintiffs Submission Court Filed by Plaintiff Andr Murray.

SWORN TO AT THE City of Fredericton, In the County of York And Province of New Brunswick this ______day of _______________ 2010. BEFORE ME: _____________________________ A NOTARY PUBLIC or COMMISIONER OF OATHS PROVINCE OF NEW BRUNDSWICK

) ) ) ) ) ) ) ) )

_________________________ Andr Murray

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1. Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) Print: PDF Format Date: 2010-07-22 Docket 117-09-CA : http://www.canlii.org/en/nb/nbca/doc/2010/2010nbca55/2010nbca55.h URL: tml Noteup Search for decisions citing this decision : Reflex Record (related decisions, legislation cited and decisions cited) Related decisions

Court of Appeal of New Brunswick Fredericton (City) v. Ferris, 2009 CanLII 51367 (NB C.A.) - 2009-0925

Legislation cited (available on CanLII)

Interpretation Act, R.S.N.B., 1973, c. I-13

Decisions cited

1061590 Ontario Ltd. v. Ontario Jockey Club, 1995 CanLII 1686 (ON C.A.) 21 O.R. (3d) 547 77 O.A.C. 196 Atlantic Pressure Treating Ltd. v. Bay Chaleur Construction (1981) Ltd., reflex 81 N.B.R. (2d) 165 65 C.B.R. (N.S.) 122 Bulmer-Woodard v. Bulmer, 2006 CanLII 30456 (NB C.A.) 307 N.B.R. (2d) 276 Doug's recreation Centre Ltd. v. Polaris Industries Ltd., 2001 CanLII 19446 (NB C.A.) 237 N.B.R. (2d) 190 Dupuis v. City of Moncton, 2005 NBCA 47 (CanLII) 284 N.B.R. (2d) 97

127

Godin v. Star-Key Enterprises and Carquest Canada, 2006 NBCA 91 (CanLII) 305 N.B.R. (2d) 180 272 D.L.R. (4th) 399 Heredi v. Fensom, 2002 SCC 50 (CanLII) [2002] 2 S.C.R. 741 213 D.L.R. (4th) 1 [2002] 8 W.W.R. 1 219 Sask. R. 161 Lange v. Cannon, 1998 CanLII 12248 (NB C.A.) 203 N.B.R. (2d) 121 163 D.L.R. (4th) 520 Naderi v. Strong, 2005 NBCA 10 (CanLII) 280 N.B.R. (2d) 379 Palmer v. The Queen, 1979 CanLII 8 (S.C.C.) [1980] 1 S.C.R. 759 106 D.L.R. (3d) 212 50 C.C.C. (2d) 193 Walton v. Cote, reflex 69 O.R. (2d) 661 Walton v. Cote, reflex 1 O.R. (3d) 558 Zadworny v. Attorney General of Manitoba et al., 2007 MBQB 53 (CanLII) 154 C.R.R. (2d) 250 213 Man. R. (2d) 108 Zoeteman v. Feist, 2009 ABCA 311 (CanLII) 13 Alta. L.R. (5th) 203 COURT OF APPEAL OF NEW BRUNSWICK COUR DAPPEL DU NOUVEAU-BRUNSWICK

117-09 THE CITY OF FREDERICTON (Defendant) - and BRENT FERRIS (Plaintiff) RESPONDENT A N D B E T W E E N: APPELLANT THE CITY OF FREDERICTON (Dfenderesse) - et BRENT FERRIS (Demandeur)

APPE

INTIM

ET ENTRE:

128

134-09BRENT FERRIS (Plaintiff) -andTHE CITY OF FREDERICTON (Defendant) RESPONDENT Ferris v. The City of Fredericton, 2010 NBCA 55 CORAM: The Honourable Justice Turnbull The Honourable Justice Richard The Honourable Justice Bell Appeal from a decision of the Court of Queens Bench: September 11, 2009 History of case: Decision under appeal: APPELLANT BRENT FERRIS (Demandeur) -etTHE CITY OF FREDERICTON (Dfenderesse)

APPE

INTIM

Ferris c. The City of Fredericton, 2010 55 CORAM : Lhonorable juge Turnbull Lhonorable juge Richard Lhonorable juge Bell Appel dune dcision de la Cour du Banc de la Reine : Le 11 septembre 2009 Historique de la cause : Dcision frappe dappel :

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Unreported Preliminary or incidental proceedings: N/A Appeal heard : February 9, 2010 Judgment rendered: July 22, 2010 Reasons for judgment: The Honourable Justice Richard Concurred in by: The Honourable Justice Turnbull The Honourable Justice Bell Counsel at hearing: For the appellant on File No. 117-09-CA: Nadia M. MacPhee for The City of Fredericton

Indite

Procdures prliminaires ou accessoires S.O. Appel entendu : Le 9 fvrier 2010 Jugement rendu : Le 22 juillet 2010 Motifs de jugement : Lhonorable juge Richard Souscrivent aux motifs : Lhonorable juge Turnbull Lhonorable juge Bell Avocats laudience : Pour lappelante dans le cadre du dossier no 117-09-CA :

Nadia M. MacPhee pour la Ville de Fred For the respondent on File No. 117-09-CA: Brent Ferris appeared in person Pour lintim dans le cadre du dossier no 117-09-CA :

130

Brent Ferris a comparu en personne

For the appellant on File No. 134-09-CA: Brent Ferris appeared in person

Pour lappelant dans le cadre du dossier no 134-09-CA : Brent Ferris a comparu en personne

For the respondent on File No. 134-09-CA: Nadia M. MacPhee for City of Fredericton

Pour lintime dans le cadre du dossier no 134-09-CA :

Nadia M. MacPhee pour la Ville de Fred THE COURT The City of Frederictons appeal is allowed and the action is dismissed. Mr. Ferris appeal is dismissed and he is ordered to pay the City costs of $2,500. LA COUR

Accueille lappel de la Ville de Frede rejette laction. Elle rejette lappel de M et le condamne payer la Ville des d 2 500 $.

The judgment of the Court was delivered by RICHARD J.A. I. [1] Introduction Both Brent Ferris and The City of Fredericton appeal a decision a judge of the Court of Queens Bench rendered on September 3, 2009, allowing in part a motion for summary judgment and dismissing part of Mr. Ferris action against the City. Mr. Ferris says the judge erred in dismissing part of his claim, while the City argues the judge should have dismissed the action in its entirety on the grounds Mr. Ferris advanced his claims after the limitation period set out in the Limitation of Actions Act, R.S.N.B. 1973, c. L-8 had expired.

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Mr. Ferris wants to introduce fresh evidence on appeal to support his position. However, the evidence could have easily been introduced before the motion judge and is of little relevance. Thus, it should not be received. Since the success of his appeal is dependent upon the reception of this evidence, it follows that his appeal must be dismissed. However, the Citys appeal must be allowed. The judge erred in calculating the limitation period. A proper computation of the limitation period reveals the action should have been commenced at the latest on the second anniversary of the date of the alleged incident. It was not. It was commenced a day late. Thus, the action should be dismissed. II. [2] Procedural History On June 29, 2005, Mr. Ferris commenced an action against the City of Fredericton, an individual City police officer and three police officers to be named. He alleged the four officers assaulted him in the late hours of June 30, 2003, or in the early hours of July 1, 2003. He also alleged the officers conspired with another person to falsify testimony, a claim that was later abandoned in amended pleadings. The originating process was a Notice of Action (Form 16B) endorsed with a brief statement of the nature of the claim. Subject to any order of the court extending time, Mr. Ferris was required to file a Statement of Claim (Form 16C) within 30 days of issuing the Notice of Action and to serve the Notice of Action and Statement of Claim together upon the defendants. On July 29, 2005, Mr. Ferris filed, not a Statement of Claim in Form 16C, but rather a Notice of Action with Statement of Claim Attached (Form 16A). Technically, this was a new originating process, but it appears to have been filed as an amendment to the original Notice of Action. In this Statement of Claim, Mr. Ferris alleges that, on June 30, 2003, he was drinking at a Fredericton pub when, for no apparent reason, he was assaulted by police officers, taken outside and severely beaten. He also alleged a second beating on some unspecified subsequent date. On January 17, 2006, the City of Fredericton filed a Statement of Defence, denying the allegations set out in the brief statement contained in the Notice of Action (Form 16B) filed on June 29, 2005. The Statement of Defence specifically states it is issued in response to the single paragraph that constitutes the Plaintiffs

[3]

132

Statement of Claim. The City of Fredericton had therefore ostensibly not been served with the Notice of Action with Statement of Claim Attached (Form 16A) that was filed on July 29, 2005. In the Statement of Defence, the City denied any tortious conduct on the part of any of its police officers, but admitted the relationship of these officers with the City would give rise to vicarious liability if any torts had indeed been committed. The City alleged the Plaintiff had been arrested on June 28, 2003, and not on June 30, 2003, as Mr. Ferris had alleged. [4] Mr. Ferris subsequently discontinued his action against the specified City police officer and the three police officers to be named. On November 10, 2008, he filed an Amended Notice of Action with Statement of Claim Attached naming only the City of Fredericton as defendant. In the Amended Statement of Claim Mr. Ferris continued to allege he was assaulted by four City police officers in the late hours of June 30, 2003. He also alleged that [a]pproximately two months later he was again attacked and beaten by two members of the Fredericton Police force. In the amended pleading, Mr. Ferris claimed damages against the City of Fredericton based on the torts of battery and false imprisonment. He also alleged the City of Fredericton was negligent in failing to supervise its property. In addition, Mr. Ferris claimed damages as a result of intentional infliction of nervous shock. The City of Fredericton filed an Amended Statement of Defence on February 12, 2009. Once more, it denied any tortious conduct by its police officers and again alleged the incident alluded to occurred on June 28, 2003, and not on June 30. The Amended Statement of Defence filed on February 12, 2009, was in response to the pleading Mr. Ferris had filed on November 10, 2008. In the meantime, on January 28, 2009, Mr. Ferris filed another Amended Notice of Action with Statement of Claim Attached. Ostensibly, this did not come to the attention of the solicitors for the City until later, since a defence to that pleading was not filed until March 18, 2009. In his amended pleading filed January 28, 2009, Mr. Ferris now alleges he was assaulted in the late hours of June 27, 2003, and again [a]pproximately two months after the June 27th

[5]

[6]

[7]

133

incident. He advances the same claims he had set out in the amended pleading filed on November 10, 2008. In the Further Amended Statement of Defence filed in response to Mr. Ferris latest pleading, the City of Fredericton again denies the allegations and adds the following two paragraphs in defence to the claim: 21. The Defendant says that the Plaintiffs action with respect to the June 27/June 28, 2003 incident was started on June 29, 2005, after the limitation period set out in section 4 of the Limitation of Actions Act, R.S.N.B. 1973, L-8 and that the Plaintiffs claims with respect to battery and false imprisonment are prescribed by the limitation period. 22. The Defendant further says that the Plaintiff amended his Statement of Claim in November of 2008 to seek damages with respect to an alleged battery that occurred in September 2003 and that any action with respect to such incident is similarly barred by section 4 of the Limitation of Actions Act, supra. [8] On June 24, 2009, the City of Fredericton filed a motion seeking the dismissal of Mr. Ferris action pursuant to Rule 22.02 and 22.04(1) of the Rules of Court, on the grounds that the action with respect to the June 2003 and September 2003 incidents is barred pursuant to s. 4 of the Limitation of Actions Act. In the materials filed in support of its motion, the City did not include a copy of the Notice of Action with Statement of Claim Attached Mr. Ferris had filed on July 29, 2005. As will be seen, the City claims to have been unaware of this pleading since it had not been served. A judge of the Court of Queens Bench heard the motion and, on September 3, 2009, dismissed Mr. Ferris claim relating to the September 2003 incident, because it was set forth in an amendment to a Statement of Claim made without leave and was made outside the time limit set out in s. 4 of the Limitation of Actions Act. However, the judge dismissed the Citys motion relating to the June

[9]

134

2003 incident on the grounds that the action with regard to this claim had been filed within the limitation period. [10] Regarding the first incident, the judge ruled that if the event occurred on the 28th [of June, 2003] at 1:10 in the morning Mr. Ferris claim is not prescribed because you start the computation of time on June 29th, 2003, which means he could have filed it on June the 29th, 2005, which is what he did. In so ruling, the motion judge relied on The Law of Limitations, 2nd ed. Lexis Nexis Butterworths (1991), where it is stated that the basic rule is that the date upon which a cause of action accrues is excluded from the computation of the relating limitation period. The judge concluded that if one excludes the day the incident is said to have happened (June 28, 2003), Mr. Ferris was therefore within the prescription period when he filed his action on June 29, 2005. As for the September, 2003 incident, the judge expressed frustration at the various amendments to the pleadings made without leave of the court. She noted that it was only in November, 2008, that Mr. Ferris first made mention of the second alleged incident and ruled that, had he asked for leave to properly amend his pleading, it would have been denied because the cause of action was clearly prescribed. Both the City of Fredericton and Mr. Ferris sought leave to appeal these rulings and a judge of this Court granted the required leave. In appeal 117-09-CA, the City of Fredericton alleges the motion judge erred in law in misapplying the applicable limitation period regarding the June, 2003 incident. In his own appeal (134-09CA), Mr. Ferris claims the motion judge should have been given a copy of the complete court record, which contained an Amended Statement of Claim filed on July 29, 2005, in which Mr. Ferris first raises the allegation of a second incident. He says that if the judge had had this document, she would have ruled the claim regarding the September 2003 incident was raised within the time prescribed in the Limitation of Actions Act. In support of his appeal, Mr. Ferris filed a Notice of Motion to introduce evidence in this Court in the form of the Notice of Action with Statement of Claim Attached he filed on July 29, 2005, and to have this Court validate the service of this document pursuant to

[11]

[12]

135

Rule 18.09(a) of the Rules of Court or, alternatively, to extend the time for service of that document. Both appeals were heard together. III. [13] follows: 1) Issues on Appeal The issues before this Court can be defined as Should the Notice of Action with Statement of Claim Attached dated July 29, 2005, be received in evidence and can/should the Court validate service pursuant to Rule 18.09(a) or extend time to serve the document? Did the judge err in law in refusing to dismiss Mr. Ferris action relating to the alleged June 2003 incident? Did the judge err in law in dismissing Mr. Ferris action relating to the alleged September 2003 incident?

2) 3)

IV. A. [14]

Analysis The proffered new evidence Mr. Ferris claims the Record on Motion filed in the Court of Queens Bench should have included a copy of the July 29, 2005, Notice of Action with Statement of Claim Attached. In that document, Mr. Ferris describes a second beating at the hands of members of the Fredericton Police force. He alleged as follows: In trying to speak with [certain individuals] about what happened on June 30th, 2003 I was again attacked and beaten by two members of the Fredericton Police force.

[15]

According to the written submission he filed in this Court, Mr. Ferris alleges he showed a copy of his July 29, 2005, Notice of Action with Statement of Claim Attached to the City Solicitor before he filed it with the Court of Queens Bench. In other documents, he

136

alleges having properly served a copy on the City Solicitor. However, the City of Fredericton has no record of ever having been served with this document and the evidence weighs mightily against the City having ever been served. The fact is, when it filed a Statement of Defence on January 17, 2006, the City replied to the single paragraph description of the claim Mr. Ferris had set out in his original Notice of Action (Form 16B). If it had been served with the document Mr. Ferris filed on July 29, 2005, the City would undoubtedly have replied to the allegations set out in that document instead of stating it was denying each and every allegation set out in the single paragraph that constitutes the Plaintiffs Statement of Claim. Moreover, Mr. Ferris, himself, admits in his written submission that he showed the document to the City Solicitor before he filed it. Thus, although the document may have been shown to the City Solicitor, it is impossible a judge could conclude on a balance of probabilities it was ever served on the City after it was filed. One cannot therefore fault the City of Fredericton for not including a copy of that document in the Record on Motion. [16] The question remains, should the July 29, 2005 Notice of Action with Statement of Claim Attached now be received in evidence? In my view, it should not. The criteria for the reception of new evidence on appeal were conveniently enumerated in R. v. Palmer, 1979 CanLII 8 (S.C.C.), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126 (QL):

(1)

The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: ... The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(2)

137

(3)

The evidence must be credible in the sense that it is reasonably capable of belief, and It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

(4)

[17]

There is no doubt that with due diligence Mr. Ferris could have adduced the July 29, 2005 Notice of Action with Statement of Claim Attached at the summary judgment hearing. He was obviously aware he had filed such a document with the Court of Queens Bench and that it had not been included as part of the materials the City filed in support of its motion. Mr. Ferris should have been aware of his obligation to put all relevant evidence in support of his position before the motion judge. In Cannon v. Lange et al. 1998 CanLII 12248 (NB C.A.), (1998), 203 N.B.R. (2d) 121, [1998] N.B.J. No. 313 (C.A.)(QL), Drapeau J.A. (as he then was) explains this in these terms: Common sense should move the parties to put their best foot forward on a motion under Rule 22. Such a course of conduct is particularly wise for a respondent, since he or she has the most to lose. As stated by the Ontario Court of Appeal in 1061590 Ontario Ltd. v. Ontario Jockey Club 1995 CanLII 1686 (ON C.A.), (1995), 21 O.R. (3d) 547 at 557 in a vernacular expression, the respondent "must lead trump or risk losing." It will rarely be sufficient for the respondent to promise that evidence, which is admissible pursuant to Rule 39.01(4), will be produced at trial: absent a compelling explanation, the respondent is required to produce admissible evidence which will prevent a conclusion that the action or defence is bereft of merit. [para. 23]

138

[18]

However, the due diligence factor is but one of the considerations in the Palmer test, and it is not on that basis alone that I would exclude the proffered new evidence. In my view, the evidence, although credible in the sense that it is beyond question the document exists and was filed, would not be expected to have affected the result. If the July 29, 2005, Notice of Action with Statement of Claim Attached had been properly adduced in evidence, the motion judge would have necessarily concluded it had never been served on the City. Since that document was really an amendment to an existing claim, it was required to be served forthwith after being filed: Rule 27.10(4). Even if the document could be considered a Statement of Claim in Form 16C, it was required to be served within six months after the Notice of Action was issued: Rule 16.08. Thus, Mr. Ferris would have required an extension of time to serve the pleading. The criteria for extending time have been addressed in several decisions of this Court. It is concisely stated in Bulmer-Woodard v. Bulmer 2006 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 an application to extend a time limit is the need "to do justice in each particular case": see Atlantic Pressure Treating Ltd. v. Bay Chaleur Construction (1981) Ltd. reflex, (1987), 81 N.B.R. (2d) 165 (C.A.), [1987] N.B.J. No. 528 (C.A.) (QL) per Ryan J.A. at para. 7. In Naderi v. Strong 2005 NBCA 10 (CanLII), (2005), 280 N.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 case requires a balancing of the prejudice to both parties resulting from the decision to grant or refuse the extension of time. An intention to appeal within the time prescribed and any explanation given by the proposed appellant for missing the limitation period are factors to be considered together with any evidence of

139

actual prejudice the delay would cause to the other party. Equally important to the equation is the determination of whether or not there is a serious issue to be appealed [...] as opposed to the matter being frivolous or vexatious, or, stated differently, whether or not there is an arguable case for consideration by the Court: see Duke v. B.L.E., [1989] N.B.J. No. 716 (C.A.) (QL) per Stratton, C.J.N.B. and Doug'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 relevant factors will enable an application judge to ensure that justice is done in the particular case. [para. 9] [19] In the present case, the City has established actual prejudice arising from the delay in being served with the amended pleading. In particular, the City has shown that, pursuant to its file retention policy of five years, relevant documents were shredded after September 2008 that otherwise would have been preserved had the City known it was being sued for a September, 2003 incident. As it was, the City only became aware of Mr. Ferris allegations regarding a September, 2003 incident when it was served with the Amended Statement of Claim dated November 10, 2008. Moreover, I question whether the July 29, 2005 Notice of Action with Statement of Claim Attached is relevant to the September 2003 incident. The reference in that document to an incident other than the June 2003 incident is found in the following paragraph:

[20]

In trying to speak with [certain individuals] about what happened on June 30th, 2003 I was again attacked and beaten by two members of the Fredericton Police force.

140

[21]

If Mr. Ferris meant to advance a separate claim for a second incident, he was required to set out a concise statement of the material facts on which [he] relies for his claim: Rule 27.06(1). His claim is severely deficient in that it does not even set out a date on which this incident is alleged to have occurred. The first reference to any time-frame is found in his November 10, 2008 amendment where he states: Approximately two months later I tried to speak with [certain individuals] in person at the [pub] about what had happened on June 30th, 2003. On this occasion I was again attacked and beaten by two members of the Fredericton Police force. [Emphasis in original]

[22]

On balance, considering the ambiguity of the July 29, 2005, Notice of Action with Statement of Claim Attached as it relates to a second incident and the actual prejudice the City has established would result from allowing late service of the document, I am of the view the time to serve the document should not be extended. Thus, the document becomes irrelevant, and to admit it as new evidence on appeal would have no effect on the result. For these reasons, I would not admit the proffered new evidence. With due diligence it could have been adduced before the motion judge, but it is of no real relevance because it was not served on time and an extension of time to serve it should not be granted. Thus, the admission of the document into evidence would not be expected to have affected the result. Summary judgment relating to the alleged June, 2003 incident The City of Fredericton sought summary judgment on the grounds Mr. Ferris action is prescribed by s. 4 of the Limitation of Actions Act, which states as follows: 4 No action for assault, battery, wounding, seduction, imprisonment or defamation shall be

[23]

B. [24]

141

commenced but within two years after the cause of action arose. [25] The City claims Mr. Ferris claim is clearly one of battery and false imprisonment and that although Mr. Ferris alludes to negligence and intentional infliction of nervous shock, he cannot rely on these to defeat the limitation period when the true nature of the claim is obviously caught by s. 4. I agree. It is obvious in reading Mr. Ferris claim that no serious claim is being advanced for anything other than the battery he claims caused him injury. While he mentions negligence and intentional infliction of nervous shock, he provides no particulars of these torts and does not relate them to the injuries he claims to have suffered. In determining whether a particular limitation period is applicable, a Court must determine What is the essence of the claim?: Godin v. Star-Key Enterprises Ltd. 2006 NBCA 91 (CanLII), (2006), 305 N.B.R. (2d) 180, [2006] N.B.J. No. 382 (QL), 2006 NBCA 91, at para. 17, Heredi v. Fensom, 2002 SCC 50 (CanLII), [2002] 2 S.C.R. 741, [2002] S.C.J. No. 48 (QL), 2002 SCC 50 and Dupuis v. Moncton (City) 2005 NBCA 47 (CanLII), (2005), 284 N.B.R. (2d) 97, [2005] N.B.J. No. 165 (QL), 2005 NBCA 47. There is simply no doubt that the essence of this claim is battery and perhaps false imprisonment. There is no tenable basis for anything else. Thus, Mr. Ferris action is prescribed if not brought within two years after the cause of action arose. Battery is actionable per se, in that no proof of actual damage is needed to render the wrong actionable. Thus, the cause of action arises when the act of battery is committed. As for the false imprisonment, it is alleged in the pleadings to have taken place on June 27 and/or 28, 2003, Mr. Ferris acknowledging he was released within a few hours of his arrest. As stated above, the motion judge found Mr. Ferris claim was not unenforceable because you start the computation of time on June 29th, 2003, which means he could have filed it on June the 29th, 2005, which is what he did. With respect, this is incorrect. Section 22(k) of the Interpretation Act, R.S.N.B. 1973, c. I-13 provides that:

[26]

[27]

[28]

142

22 In an Act or regulation (k) where a period of time dating from a specified day, act, or event is prescribed or allowed for any purpose, the time shall be reckoned exclusively of such day or of the day of such act or event.

22 Dans rglement,

une

loi

ou

un

k) lorsquun dlai est fix ou accord pour un objet quelconque et quil est calcul compter dun jour, acte ou vnement particulier, le dlai ne comprend pas ce jour ou celui de cet acte ou de cet vnement.

[29]

Thus, the Interpretation Act dictates that the time periods under the Limitation of Actions Act are to be computed exclusively of the date or event from which they arise, i.e. the date upon which the cause of action accrues. In Law of Limitations, the author describes how the computation of time pursuant to such a provision is to be achieved: Sources for guidance on the computation of time include the federal and provincial Interpretation Acts and rules of court, as well as common law principles. The basic rule is that the date upon which a cause of action accrues is excluded from the computation of the relating limitation period. Where a limitation period is expressed in years, for example: the courts and the legislatures have made it clear that the period of one or more years begins to run on the day following the triggering event; in other words, the day of the event itself is excluded. The principle apparently applied is that, in doing so, and in commencing with the beginning of the day following that event, a year is complete at the end of the day which is the anniversary of the day of the

143

event, thus making a full 365 days (or 366 days in the case of a leap year ) [30] This principle was applied in Chiasson v. Century Insurance Company of Canada (1977), 19 N.B.R. (2d) 57 (Q.B.), affirmed (1978), 21 N.B.R. (2d) 192 [1978] N.B.J. No. 65 (C.A.) (QL), where Bugold J.A. explained that the computation of time by excluding the day of the act or event results in the limitation period expiring at midnight on the anniversary of the event. He stated: Thus when computing a limitation period of one year, because the day of the event is omitted, the period expires on the anniversary of that day. [para. 22] [31] The same goes for computing a limitation period of two years. If one excludes the day of the act or event and counts 365 days twice (or 366 days if a leap year is involved), one invariably finds that the limitation period expires on the second anniversary of the date of the act or event. Chiasson represents the state of the law in New Brunswick on the computation of time and is consistent with the jurisprudence in other parts of Canada (see, for example, Walton v. Cote reflex, (1989), 69 O.R. (2d) 661 (H.C.J.), affirmed reflex, (1991), 1 O.R. (3d) 558 (C.A.), Zoeteman v. Feist, 2009 ABCA 311 (CanLII), 2009 ABCA 311 and Zadworny v. Manitoba (Attorney General) et al. 2007 MBQB 53 (CanLII), (2007), 213 Man.R. (2d) 108 (Q.B.)). In the present case, Mr. Ferris alleges the battery occurred on June 27, 2003, and the false imprisonment on June 28. The City alleges both occurred on June 28. Regardless, Mr. Ferris action was commenced after the limitation period had expired. Assuming both events to have occurred on June 28, 2003, as set out in the Citys Statement of Defence, Mr. Ferris was required to commence his action before the limitation period set out in s. 4 of the Limitation of Actions Act expired. It expired at midnight on the second anniversary of the event, that is, at midnight on June 28, 2005. There is no factual dispute that could possibly be an obstacle to summary judgment in these circumstances. Mr. Ferris

[32]

[33]

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action was commenced on June 29, 2005, after the limitation period expired. His action is barred by application of s. 4 of the Limitation of Actions Act, and there is no doubt his action regarding the June 27/28, 2003 incident would be dismissed at trial. C. [34] Summary judgment relating to the alleged September 2003 incident Mr. Ferris submits the motion judge erred in summarily dismissing his claim with respect to the alleged September, 2003 incident. His grounds of appeal state the judge was not given the complete record since the Record on Motion did not include the July 29, 2005 Notice of Action with Statement of Claim Attached and had this document been considered, it would have shown the November 10, 2008 amended pleading was valid and well within the two years limitation period. As stated above, I am of the view Mr. Ferris cannot rely on the July 29, 2005 amended pleading because the document was never served on the City and to now extend the time for service would cause the City a prejudice. Thus, Mr. Ferris grounds of appeal are without merit. Disposition

[35]

V.

[36] For these reasons, I would allow the Citys appeal, set aside the motion judges decision, and dismiss Mr. Ferris action on the grounds it is prescribed by the Limitation of Actions Act. In addition, I would dismiss Mr. Ferris appeal, and I would order him to pay the City costs in the amount of $2,500. ____________________________ J. C. MARC RICHARD, J.A. WE CONCUR: _______________________________

145

WALLACE S. TURNBULL, J.A. _______________________________ B. RICHARD BELL, J.A.

2. Novotny v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14762 (F.C.) Novotny v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14762 (F.C.) Date: 2000-01-10 Docke IMM-4701-99 t: http://www.canlii.org/en/ca/fct/doc/2000/2000canlii14762/2000canlii1 URL: 4762.html Noteu Search for decisions citing this decision p: Minimize (related decisions, legislation cited and decisions cited)

Date: 20000110 Docket: IMM-4701-99 BETWEEN: EMIL NOVOTNY, DARINA JACHYMOVA, LUKAS JACHYM, Applicants,

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- and THE MINISTER OF CITIZENSHIP AND IMMIGRATION, Respondent. REASONS FOR ORDER AND ORDER MR. JOHN A. HARGRAVE, PROTHONOTARY [1] By a motion in writing counsel for Respondent, having misread the calendar, seeks an extension of time within which to serve and file a memorandum of argument. [2] 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. Grewal, as summed up by Mr. Justice Strayer, as he then was, in Beilin v. Minister of Employment and Immigration reflex, (1995), 88 F.T.R. 132 at 134, stands for the proposition that "as the condition for obtaining such an extension of time an applicant must show that there was some justification for the delay throughout the whole period of the delay and that he has an arguable case...". [3] While the elements required by Grewal in seeking an extension of time are, as I say, well known, and indeed Grewal is referred to in the Respondent"s material, too often counsel do not take seriously the necessity for clearly establishing, in their material in support of the motion for a time extension, that there is an arguable case. [4] The factors to consider in an application for an extension are, to a great degree, open-ended: see for example Noel & Lewis Holdings Ltd. and Warky v. Canada reflex, (1986), 5 F.T.R. 166 at pages 168 and 169 and Karon Resources Inc. v. Minister of National Revenue reflex, (1994), 71 F.T.R. 232 at 235-236. 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). Second, a compelling explanation for delay may result in a time extension where the arguable case is weak, and vice versa

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(Grewal, supra, at 116). 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). [5] In the present instance at issue are delay, whether there is an arguable case and prejudice to both Applicants and Respondent. The delay before the Respondent attempted to file the memorandum of argument was minimal and, as I have noted, it was the result of a misreading of a calendar. This was an unfortunate oversight, but in this instance it is not fatal. Here I would acknowledge that counsel for the Applicants pleads the monetary hardship and prejudice to his clients as a result of the filing oversight: that is unfortunate, but it can always be rectified 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 which I may determine whether the case is in fact arguable. As Chief Justice Jackett said in Consumers" Association of Canada (supra) at page 463, an extension of time depends upon the Court having before it material from which it can satisfy itself that there is an arguable case for setting aside the order or decision in question. In this instance there is 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 a party does not have a case: With regard to the prejudice to the applicant, I think it may be assumed that the applicant will be prejudiced if he is denied the right to put forward his case. If, however, the applicant does not have a case, he cannot be prejudiced if an extension of time is denied. Here the applicant has tendered no evidence of an arguable case. There is therefore, no evidence of the existence of an arguable case which he is being denied the right to put forward. There is therefore no evidence of any prejudice to the applicant. [page 201] This leads back to the concept of the underlying consideration of doing justice between the parties, a factor in Grewal. While the result, a denial of the time extension, may be unfortunate, there is no injustice where a party, here the Respondent, fails to put forward an arugable case. ORDER:

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The motion for an extension of time within which to file the memorandum of argument is denied. Costs of this motion to the Applicants, forthwith, in the amount of $450.00.

(Sgd.) "John A. Hargrave" Prothonotary January 10, 2000 Vancouver, British Columbia FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS ON THE RECORD

COURT FILE NO.: STYLE OF CAUSE: LUKAS JACHYM v.

IMM-4701-99 EMIL NOVOTNY, DARINA JACHYMOVA,

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369 REASONS FOR ORDER AND ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY DATED: January 10, 2000

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SOLICITORS OF RECORD: Mr. Richard Hendery Barrister & Solicitor Vancouver, BC for the Applicants

Morris Rosenberg Deputy Attorney General of Canada for the Respondent

3. Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Daly v. Petro-Canada, 1995 CanLII 6205 (NB Q.B.) Daly v. Petro_Canada, 1995 CanLII 6205 (NB Q.B.) Date: 1995_05_12 Docket: S/C/140/92 Parallel citations: 162 N.B.R. (2d) 142 URL: http://www.canlii.org/en/nb/nbqb/doc/1995/1995canlii6205/1995canlii 6205.html Noteup: Search for decisions citing this decision Reflex Record (related decisions, legislation cited and decisions cited) Related decisions * Court of Queen's Bench of New Brunswick Daly v. Petro_Canada, 1995 CanLII 6210 (NB Q.B.) _ 1995_06_23 * Daly v. Petro_Canada, 1995 CanLII 5573 (NB Q.B.) _ 1995_03_20 Decisions cited

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* Collier v. Collier, (reflex_logo) reflex 119 N.B.R. (2d) 260 36 R.F.L. (3d) 114 * General Accident Insurance Company v. Newcastle (Town), 1988 CanLII 127 (NB C.A.) 87 N.B.R. (2d) 238 52 D.L.R. (4th) 356 * R. v. Chase, 1987 CanLII 23 (S.C.C.) [1987] 2 S.C.R. 293 82 N.B.R. (2d) 229 45 D.L.R. (4th) 98 37 C.C.C. (3d) 97 59 C.R. (3d) 193 * Sullivan v. Irving_Zed (Judith) Photography Inc. et al., (reflex_logo) reflex 149 N.B.R. (2d) 300 * Workers' Compensation Board (N.B.) v. Atlantic Speedy Propane Ltd. et al., (reflex_logo) reflex 96 N.B.R. (2d) 108 IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN Date: 19950512 Docket: S/C/140/92 BETWEEN: F. THOMAS DALY, VALERIE I. DALY, SUSAN McQUADE, DALY'S STOP 'N' SHOP LTD. and CONSOLIDATED HOLDINGS LTD., Plaintiffs _and_ PETRO_CANADA, BRENT TREMBLAY, H. DALE WILSON, DOMINIQUE PILLA, LEN CROSSMAN, R. SWAINE, E. MARTELL, PETER FORESTELL and GORDON WALL, Defendants DATE OF HEARING MOTION TO RE_OPEN: DATE OF RULING ON MOTION: COUNSEL AT HEARING: May 5, 1995 May 12, 1995

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Rodney J. Gillis, C. and David N. Rogers, for the plaintiffs Deno P. Pappas, Q.C., Frederick A. Welsford and Sherrie R. Boyd for the defendants other than Peter Forestell RULING ON MOTION TO RE_OPEN McLellan, J. Petro_Canada closed its case at trial on a counterclaim against some members of the Daly group without introducing evidence to prove how much, if anything, each one of the plaintiffs owe Petro_Canada. Now after argument and after a decision has been made dismissing Daly's claims but before a decision has been made on Petro_Canada's counterclaim, Petro_Canada asks to be allowed to re_open its case so it can offer such evidence. Background On March 20, 1995, I filed a decision in this action dismissing the claims brought by Daly (F. Thomas Daly, his wife Valerie I. Daly, his sister Susan McQuade and two of their corporations Daly's Stop 'N' Shop Ltd. and Consolidated Holdings Ltd.) against Petro_Canada and other defendants. In that decision I said. The evidence establishes that there are substantial sums still due from Daly to PC. The exact amount is in dispute. There is also a dispute on the rate of interest PC is entitled to receive. Before I decide the counter_claim and make a decision regarding costs in this action, I request further oral argument from counsel on the counter_claim, interest and costs. If they wish, counsel may also file further written submissions on those points. . . . The decision on costs and the counter_claim is reserved until after further argument. The Clerk is requested to fix a date for further argument as soon as convenient to counsel. Such further argument began on April 13 and after brief discussion was adjourned to April 20, 1995. On that date counsel for Petro_Canada informally requested leave to re_open the case for Petro_Canada. Rather than to deal informally with the request to re_open, the date of May 5, 1995 was set for the hearing of a formal motion to re_open.

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[Page 2] Notice of Motion to Re_open A formal Notice of Motion was issued by Petro_Canada dated April 25, 1995 notifying Daly that: The Defendant, Petro_Canada, will apply . . . for an order that: The Court grant leave to adduce further evidence for the purpose of apportioning the amount of the counterclaim agreed upon by the parties and as set out in Exhibit D_52 introduced at trial by consent, among each of the plaintiffs' sites as set out in the said defendant's amended counterclaim. The grounds to be argued are (a) when Exhibit D_52 was entered into evidence by consent, counsel for the said defendant was misled in believing that plaintiffs' counsel had agreed not only to the total amount of the defendant's counterclaim, but to the apportionment of that amount among the various plaintiffs' sites as set out in the amended counterclaim and as a result did not adduce evidence of such apportionment; and alternatively, neglected to include with the said exhibit the individual summary sheets for each of the plaintiffs' sites in respect of the total amount agreed upon; (b) the matter of apportionment among the various plaintiffs' sites was not in issue and there is no unfairness to the plaintiffs in the admission of such evidence; and (c) the interest of justice requires the admission of such evidence.

Counsel for Petro_Canada in support of the motion to re_open says in an affidavit says that: 6. During the course of the trial, plaintiffs' counsel had asked if we would provide him with certain information which included volumes of gas sold by Petro_Canada to the plaintiffs between January 1, 1992 and December 31, 1994, Petro_Canada's posted rack prices and the plaintiffs' pump prices during this

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[Page 3] period. In return for agreeing to supply this material, plaintiffs' counsel agreed to the calculation of the amounts in the counterclaim without the need for further proof, but reserved the right to dispute liability with respect to certain items, primarily, whether interest was payable and whether greater head lease rentals should have been credited. 7. As a result of this agreement, Exhibit D_52, was entered into evidence by consent . . . This exhibit shows the aggregate of the counterclaim as being $2,188,976.03 broken down into 18 categories. The last column was added by plaintiffs' counsel showing the items both agreed to, and disputed by, the plaintiffs. The calculations were not in dispute but liability for the disputed amounts was in issue which would involve argument only. 8. The purpose in reaching agreement on the amount of the counterclaim was to expedite the trial by avoiding an additional 1 to 2 days in introducing and explaining through a witness the voluminous monthly statements and supporting documents. 9. When Exhibit D_52 was entered by consent I had stated: "The first document is a summary sheet which shows the amounts of Petro_Canada's Counterclaim". 10. I understand that the agreement with plaintiffs' counsel was that the plaintiffs were collectively agreeing to the aggregate of the counterclaim, the breakdown of which was shown in the amended counterclaim. Based on my understanding of our agreement, I did not introduce into evidence the monthly statements, supporting materials and summary sheets for each of the plaintiffs' sites as referred to in paragraph 5 hereof. In addition, the said summary sheets were inadvertently omitted when introducing Exhibit D_52. Counsel for Daly in an affidavit in opposition to the motion to re_open says: [Page 4] 3. That during the presentation of the defence in the within matter on the latter days of the trial Defendants' counsel did provide a calculation of the total amounts outstanding and requested consent to the court receiving such

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document (in the format that the Defendant, Petro_Canada, had prepared) as an exhibit at the trial. 4. That the plaintiffs' consented to the receipt of the document in the format prepared by the Defendants on the condition that the Plaintiffs would dispute the amounts as set forth in the document which was eventually marked as Exhibit D_52 and further that the Defendants would provide additional information refused throughout the presentation of the Plaintiffs case. 5. That at no time did the Plaintiffs or Plaintiffs' counsel ever suggest, instruct, request or direct how the Defendants would present the evidence that it wished an admission upon and further at no time, during the trial, did Defendants' counsel ever make any request whatsoever for a breakdown of the amounts outstanding vis a vis each of the Plaintiffs as claimed in the Counterclaim. 6. That neither the Plaintiffs nor the Plaintiffs' counsel have ever agreed to a breakdown of the amounts outstanding as shown upon the amended Counterclaim as the Plaintiffs have never agreed to the total amount of such account and such was put in dispute in the Defence to Counterclaim and throughout the trial. 7. That the apportionment of the sums in Exhibit D_52 amongst the various Plaintiffs' sites is an issue. 8. That I do verily believe the additional evidence that the Defendants seek to adduce for purposes of apportioning the amounts in Exhibit D_52 amongst each of the Plaintiffs' sites was available during the course of the trial and could have been presented by the Defendants during the course of the trial. [Page 5] 9. That I specifically deny that the Plaintiffs and/or Plaintiffs' counsel mislead the Defendants and/or Defendants' counsel. Summary of Facts Counsel for Petro_Canada apparently assumed that the admission by counsel for Daly of some of the global amounts due from the Daly Group to

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Petro_Canada was an admission that each one of the plaintiffs owed a specific portion of those global amounts. Although counsel for Daly did not do or say anything to prevent counsel for Petro_Canada from making that assumption, I am not convinced that counsel for Petro_Canada was intentionally misled. Counsel is under no legal duty to make admissions or to remind opposing counsel to prove their case. If I had noticed that type of evidence was missing, when counsel for Petro_Canada started to close I would have reminded him of his omission by asking him if he was offering any evidence as to the precise amounts claimed to be owing from each of the plaintiffs. Unfortunately, I did not. Now, before a decision has been made on Petro_Canada's counterclaim, Petro_Canada asks to be allowed to reopen its case so it can offer such evidence. Potential Unfairness Counsel for Daly says that it would be unfair to permit Petro_Canada to present further evidence because if such evidence had been offered earlier it might have affected my assessment of credibility and my decision to dismiss Daly's claims. In my opinion further accounting evidence relating to the apportionment of the global amounts among the various plaintiffs (which global amounts have already been the subject of limited agreement) should not in anyway affect the decision to dismiss the Daly claims. Nor do I see such evidence of apportionment as [Page 6] affecting credibility. Thus I see no unfairness to Daly if Petro_Canada is allowed to present such further evidence. However in my view it would be most unfair to Petro_Canada if a misunderstanding or oversight by counsel or the judge regarding accounting evidence apportioning an agreed global amount were to deprive Petro_Canada of a "determination of [its] proceeding on its merits". Discretion of Trial Judge

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The law has long recognized that a trial judge has a wide discretion in such matters. The traditional rule was stated as follows by Sopinka and Lederman, The Law of Evidence in Civil Cases, 1974, at p. 541 as follows: The trial judge has a wide discretion to permit further evidence to be adduced, either for his own satisfaction or where the interest of justice requires it. The discretion is exercised by trial judges in many different situations and for different reasons. The classic statement of that rule is in Walls v. Atcheson (1826), 2 C. & P. 268 at p. 269, 172 E.R. 121. In that English case the discretion of the trial judge in such matters was recognized by Best, C.J. in the following words: . . . it is better not to lay down any particular rule, but to leave it to the discretion of the Judge who tries a cause, under the particular circumstances, to admit or not admit what may be material. In this province many cases also recognize that trial judges have the discretion to allow evidence to be introduced after a party has closed its case, including the old decisions Scribner v. MLaughlin (1849), 6 N.B.R. 379, at p. 384 and Seeds v. Connoly (1856), 8 N.B.R. 337, a decision of Carter, C.J. The headnote of Seeds v. Connoly summarizes the rule in that decision as follows: [Page 7] It is discretionary with the [trial] Judge . . . to admit evidence at any time during the trial, even after counsel has addressed the jury, and the Court [of Appeal] will not interfere if the evidence is not in itself inadmissible, or no injustice has been done. In very recent years that classic traditional discretion of trial judges has been referred to by some New Brunswick judges in passing as if the discretion is now encrusted with a number of substantial qualifications. For example in Bank of Nova Scotia v. J. & L. Construction Ltd. et al. (1978), 26 N.B.R. (2d) 680 at p. 682 where Mr. Justice Stevenson said: While it is unusual to allow a case to be reopened after argument, the rule against it is not inflexible and the court has a discretion to allow it.

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In Workers' Compensation Board v. Atlantic Speedy Propane et al. reflex, (1989), 96 N.B.R. (2d) 108 at pp. 115_116 Chief Justice Stratton speaking for the Court of Appeal was also very hesitant in recognizing that traditional discretion of a trial judge and said: While there is no express provision in the Rules of Court empowering a trial judge to receive further evidence, it has been held he has a discretionary power to do so either (a) for his own satisfaction or (b) where justice requires it. But leave to receive further evidence should not be granted except for the most compelling reasons: see Workmens' Compensation Board et al. v. McCarthy et al. (1981), 37 N.B.R. (2d) 185; 97 A.P.R. 185 (N.B.Q.B.T.D.); (1983), 42 N.B.R. (2d) 160; 110 A.P.R. 160 (N.B.C.A.). At trial in McCarthy Mr. Justice Miller also made the following point at pages 188_189: [Page 8] As with all discretionary powers, leave to call additional evidence should not be granted except for the most compelling reasons. Chaos in the trial procedure would result if such procedures were regularly followed. I have not been referred to, nor have I found, a case where a trial judge has admitted further evidence as to damages after the completion of the trial. One of the reasons for this reluctance to permit a case to be re_opened appears in Parent v. National Bank of Canada (1992), 124 N.B.R. 91. In that case Mr. Justice Russell was faced with a request initiated in December 1991 to receive documentary evidence that might have resulted in a change in a decision made 19 months earlier in May 1990. That lengthy delay is a major point of distinction of that case from this one. The documents were in the possession of plaintiff's counsel at the time of the trial in May 1990 but had not been put into evidence. In refusing that request Mr. Justice Russell said at pp. 202_203: One of the great dangers in allowing an application of this type is that a "finality to litigation" will, in fact, be discouraged as unsuccessful litigants will attempt to re_open their causes by questioning tactical decisions made by trial

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counsel during the course of the trial without allegations (much less proof) of wrongdoing or substandard conduct on the part of counsel. I agree with the result in Parent because of the circumstances and the lengthy delay. But that case also appears to have reinforced the comment that "leave to receive further evidence should not be granted except for the most compelling reason" as if it were a firm legal rule. I am, not convinced that it is. Thus comments in a number of New Brunswick cases in recent years have implied reduction in the traditional discretion a [Page 9] trial judge to allow a party to present further evidence after that party has closed. But remarks such as "leave to receive further evidence should not be granted except for the most compelling reasons" do not appear to have been made intentionally to overrule the traditional rule that "it is better not to lay down any particular rule, but to leave it to the discretion of the judge". Ironically, such comments implying a reduction of a trial judge's traditional discretion in such matters have occurred while the new Rules of Court, in force since 1982, have been attempting to escape the bounds of excessive formalism. For example, the Rules now emphasize that: 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. 2.01 The court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 2.02 A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties . . . It seems to me to be worthy particular emphasis that the phrase "should not be granted except for the most compelling reasons" are not found in the

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Rules of Court. Those words appear to me to be inconsistent with both the letter and the spirit of the Rules and the Judicature Act, which, for example, in s. 26(3) uses words such as "as to the Court seems just". [Page 10] Form v. Substance Petro_Canada, which has successfully urged in this action to strictly interpret the extensive fine print of numerous contractual forms against Daly, now argues that it should not be bound by the formality of having closed its case and should be allowed to re_open. Daly, who was unsuccessful in his efforts to have me allow recollections of oral understandings and conversations with Petro_Canada staff to modify the fine print of contractual forms, now argues that Petro_Canada is bound by the formality of having closed its case and should not be allowed to re_open. In broader terms the procedural issue before the court on this motion is another dispute over the primacy of form or substance. The continuing struggle and tension between form and substance is as old as civilization. Often courts are faced with the choice of deciding a case according to some rule or form or deciding a case on its substance and merits. In matters of property, contract and criminal procedure, often "form is substance". Riopelle v. City of Montreal (1911), 44 S.C.R. 579 at p. 586. But in many other legal matters including disputes over civil procedure, courts usually put substance over form and decide on the substance and merits of a case, not on its form or on other abstractions. Thus the Rules of Court use phrases such as "the trial judge may make such order as may be just" and emphasize substance over form by encouraging "expeditious determination of every proceeding on its merits" and specifying "amendments shall be permitted . . . to secure the just determination of the matters in dispute between the parties". [Page 11] In passing, I note that undue emphasis on form over substance in my view can lead to a modern form of medieval scholasticism. Diderot in

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L'Encyclopdie, vol. 2, 15, described the reasoning method of scholasticism as follows: . . . it reasoned from a basis of abstraction rather than of reality; it created for this new sort of study a new language. And disciples believed themselves wise because they had learned this new language. (Original) . . . on raisonna sur les abstractions, au lieu de raisonner sur les titres rels: on cra pour ce nouveau genre d'tude une langue nouvelle, et on se crut savant, parce qu'on avait appris cette langue. An infamous example of error resulting from what strikes me as modern legal scholasticism is the reasoning of the New Brunswick Court of Appeal in R. v. Chase (1984), 55 N.B.R. (2d) 97 (Angers, J.A., Stratton, C.J.N.B. and H.E. Ryan, J.A. concurring), overruled, 1987 CanLII 23 (S.C.C.), [1987] 2 S.C.R. 293. In Chase, a 40 year old male, was convicted of sexual assault because he had grabbed a 15 year old girl by the breasts. However, the Court of Appeal substituted a verdict of guilty of common assault. The Court of Appeal reasoned from the abstractions of various narrow dictionary definitions of "sexual" and "sex" rather than from the reality of a man grabbing a girl's breasts. The Court of Appeal said at page 102: The problem in this case is that the contact was not made with the sexual organs of the victim but to the mammary gland, a secondary sexual characteristic. . . . to include as sexual an assault to the parts of a person's body considered as having secondary sexual characteristics may lead to absurd results if one considers a man's beard. [Page 12] Recent Civil Procedure Decisions In three recent cases the Court of Appeal has reversed me in rulings on civil prodedure [sic]. In my opinion those three reversals indicate that the

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Court of Appeal in deciding questions of 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 a decision to allow a claims manager of the defendant's insurance company (who was paying for the defence and would pay for any settlement or award) to be present at the examination for discovery of the plaintiff in an action arising out of a motor vehicle accident. Although the insurer would have to pay, the Court of Appeal decided the insurer "is not a party and is not entitled to be present". That strikes me as favouring form over substance. In Sivret v. N.B. Power (January 3, 1995), reversing 146 N.B.R. (2d) 40, the Court of Appeal took the view that until death is proved by certificate or direct evidence or in compliance with the Presumption of Death Act, death cannot be inferred. Thus the Court of Appeal allowed a boy's litigation guardian to continue to act in that capacity more than one year after the boy fell from a bridge over the St. John River and became "missing". In Sivret the Court of Appeal also enforced the disputed acceptance by the litigation guardian of an Offer to Settle claims relating to the boy's suffering, future loss of income and other damages from an accident. Most of the boy's claim would die with him. That Offer to Settle had been made before the boy fell from the bridge and went "missing". Again, I think the message from the Court of Appeal Sivret is to favour form over substance. [Page 13] In R. v. Fraser (February 22, 1995) the Court of Appeal allowed an appeal by the Crown and criticized me for raising a Limitations of Actions Act defence for an unrepresented defendant who was being sued by the Crown to collect a very old student loan. The Court of Appeal cited no cases but said: . . . the cases say that a judge should not raise such a defence of his or her own volition. See Mew, The Law of Limitations, p. 54. That book by Mew does makes that point but cites in support of it only two cases. Those two cases are extremely ancient English cases from 360 years

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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 of Appeal ignored the well_known provision in the Interpretation Act which lays down the modern rule that: 4. Every Act shall be judicially noticed, without being specially pleaded.

Fraser also strikes me as another example of the Court of Appeal favouring form over substance. Ironically, counsel for the successful appellant in Fraser is one of the counsel for Petro_Canada in this case. Despite those three recent decisions from the Court of Appeal which I think favour form over substance in procedural matters, there are two recent indications that the Court of Appeal is now taking another approach. In October 1994, before the Court of Appeal decided Sivret and Fraser, I allowed a motion in this action for an interim injunction restraining Petro_Canada from proceeding against Daly under its power of sale until 30 days after the trial judgment in this action. In doing so because of special circumstances, I departed [Page 14] from the usual practice and did not require Daly put up extra security. 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 unusual discretionary order by another judge that extended the time for adding a defendant after the expiry of a limitation period because of the particular circumstances of the case. That case is York Equipment Ltd. v. Dabrowski Estate (April 6, 1995). As I see it, in York Equipment the Court of Appeal has reaffirmed that matters of civil procedure should be decided on their substance and merits.

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Also the Court of Appeal particularly emphasized in York Equipment that: We repeat the standard of review adopted by this Court in past cases, and as was said over a century ago in Gelding 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 the judge, the Court of Appeal does not in general interfere with that discretion. Not that the Court of Appeal has not complete jurisdiction over such cases, or that the decision of the Court below would not be overruled where serious injustice would result from that decision; but, as a general rule, the Court of Appeal declines to interfere. As far as I can determine that April 6, 1995 decision of York Equipment is only the third time that the New Brunswick Court of Appeal has ever cited or expressly followed that 1876 English Court of Appeal decision, Golding v. Wharton Saltworks. I am pleased to [Page 15] see Golding reaffirmed as representing "the standard of review adopted by [the New Brunswick Court of Appeal] in past cases". The other two cases in which Golding was cited in the law reports of this province as far as I can determine are the conflicting decisions Cheminski et al. v. Engineering Consultants Ltd. 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 out a 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 correct statement of the law applicable to appeals such as the present" the English Supreme Court Practice. The "standard of review" approved in Cheminski was much broader than in Golding. The "Cheminski standard of review" was set out at page 770 as follows: "There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the Judge to

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make, unless it be shown that he exercised his discretion under a mistake of law, or in disregard of principle, or under a misapprehension as to the facts; or that he took into account irrelevant matters or failed to exercise his discretion, or that his order would result in injustice; and the Court will assume that the Judge properly exercised his discretion unless the contrary is shown." Collier was an appeal of a case of unequal division of marital 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] Where an exercise of discretion is challenged, this court has 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_Ko Enterprises Ltd. (1981), 35 N.B.R. 256, 88 A.P.R. 256. A similar principle was enunciated by the British Columbia Court of Appeal in Maddison v. Bain, [1928] 3 D.L.R. 33, where Masten, J.A. at p. 34 said: . . . It is not usual for a Court of Appeal to set aside orders in 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 it would not do so unless they could say that the case was so 'extreme' and the circumstances so special that a 'serious injustice' would result if the order complained of was sustained, and cf. Knowles v. Roberts (1888), 38 Ch. D. 263, where Cotton, L.J., held, at p. 268, that 'material injury' and 'very great prejudice' had been occasioned by order and therefore it was set aside. This view of non_interference with judicial discretion has 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 English Court of Appeal and they said they would not do so unless there was what Atkin, L.J., declared had been occasioned by the order of the Lord Chief Justice, viz., 'a very substantial injustice'." The judge of first instance made a discretionary order with respect to an unequal division of marital debts. As I am not able to say that in exercising his

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discretion the trial judge was manifestly wrong or that any substantial injustice resulted, I would not intervene. [Page 17] In both Collier and York Equipment the Court of Appeal ignored Cheminski. I interpret Collier and York Equipment as standing for the premise that "Cheminski standard of review" is no longer the law in this province. In my view York Equipment also indicates that the Court of Appeal is now emphatically returning to its position in Collier and reaffirming the "Collier standard of review". It is accepting that the law has recognized for more than a century that a court of appeal should not interfere with the exercise of the discretion of a 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 by Stratton, C.J.N.B., in Collier. In my view, his concurrence minimizes the effect of his comment in Atlantic Speedy Propane that discretionary procedural relief "should not be granted except for the most compelling reasons" which echoed Miller, J. in McCarthy that "as with all discretionary powers, [it] should not be granted except for the most compelling reasons". In my opinion in view of Collier and York Equipment those earlier words by Chief Justice Stratton in Atlantic Speedy should not be considered as implying that the standard of review of judicial discretion in a matter of civil procedure is to verify the existence of "most compelling reasons". As I see York Equipment, the Court of Appeal is now confirming that it is putting substance over form in matters of civil procedure. Accordingly, in my opinion the "form over substance" implications for civil procedure of the Court of Appeal decisions of Sullivan, Sivret and Fraser have been nullified. [Page 18] Application of Discretion Against this background, in considering whether or not I should in my discretion allow Petro_Canada to present the further evidence, the starting point is a consideration of the facts of this case.

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I emphasize that the starting point is not the passing comment in Atlantic Speedy Propane that "leave to receive further evidence should not be granted except for the most compelling reasons". Putting such a statement first in my opinion could too easily lead to reasoning "from a basis of abstraction rather than of reality" and result in error. Thus I emphasize that the starting point is a consideration of the facts of this case. As noted, counsel for Petro_Canada apparently incorrectly assumed that the admission by counsel for Daly of some of the global amounts due from the Daly Group to Petro_Canada was an admission, for example, that Susan McQuade owed a specific portion of those global amounts. I regret that I did not notice that such evidence was missing at the time. Now, before a decision has been made on Petro_Canada's counterclaim, Petro_Canada asks to be allowed to reopen its case so it can offer evidence apportioning those amounts among the plaintiffs. To not allow Petro_Canada to re_open now in my opinion would prevent the just determination of this proceeding on its merits. To prevent a proper determination of this case on its merits would sacrifice justice to excessive procedural formality and would be wrong. In Jaillet v. Myers (1983), 50 N.B.R. (2d) 396, Mr. Justice Meldrum said with regard to allowing a party to reopen his case: [Page 19] The role of the court is to hear the issues and the evidence as presented by counsel for each side. It does not include the duty to try the case for one side or the other. It does include the duty to ensure, if possible, that a party shall not be denied justice through neglect or forgetfulness of his lawyer. Had it not been for my firm assumption that the amount was not in dispute, I would have reminded plaintiff's counsel that I had no firm proof of the amount of damage to vehicle, before I allowed him to close his case. (p. 397) . . . the duty of the court is to ensure, so far as possible, that justice is done. My own assumptions led me to vary my practice and I neglected to remind plaintiff's counsel, as I would have done, that I had no evidence on damages.

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Under the circumstances I am not prepared to make plaintiff suffer through failure by his solicitor or neglect by the trial judge. (p. 400) In my opinion those words in Jaillet (substituting "Petro_Canada" for "plaintiff") apply generally to this case. I note that Jaillet was a case "where a trial judge has admitted further evidence as to damages". Unfortunately Jaillet was not cited in either Parent or Atlantic Speedy Propane. Ruling In my view, like Jaillet, this is an appropriate case in which I should exercise my discretion to allow Petro_Canada to re_open to present the accounting evidence apportioning the agreed global amounts among the plaintiffs. I will of course also permit Daly to present further evidence in rebuttal. The costs occasioned by the need to re_open will be the subject of separate consideration when costs are argued and fixed. [Page 20] In granting this discretionary procedural relief to Petro_Canada, I am putting substance over form in civil procedure as I did in October 1994. Then I granted Daly the discretionary procedural relief of an interim injunction without extra security to prevent Petro_Canada from conducting mortgage sales. At that time the law report states that I said orally: Finally I note that our legal system tries as far as possible, subject to some unfortunate delays, to fairly and expeditiously resolve disputes in our society when the parties are unable to do so themselves. Those words "to fairly and expeditiously resolve disputes" still define what the court is trying to do in this case. The Clerk is requested to fix a date for the taking of further evidence as soon as convenient. [S] H. H. McLellan A Judge of the Court of Queen's Bench of New Brunswick

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

5. Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB C.A.) Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB C.A.) Print: PDF Format Date: 1995-01-19 Docket: 43/94/CA Parallel citation 157 N.B.R. (2d) 217 s: http://www.canlii.org/en/nb/nbca/doc/1995/1995canlii6225/1995canlii URL: 6225.html Noteup Search for decisions citing this decision : Reflex Record (related decisions, legislation cited and decisions cited) Legislation cited (available on CanLII)

Evidence Act, R.S.N.B., 1973, c. E-11 Interpretation Act, R.S.N.B., 1973, c. I-13

Decisions cited

New Brunswick v. Atlantic Speedy Propane Ltd. et al., N.B.R. (2d) 94

reflex 96

IN THE COURT OF APPEAL OF NEW BRUNSWICK Rice, Ryan and Turnbull, JJ.A. Date: 19950119

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Docket: 43/94/CA BETWEEN: JUNIBERRY CORP., a body corporate and PING BEN HONG (Defendants) APPELLANTS -andTRIATHLON LEASING INC., (Plaintiff) RESPONDENT

APPEAL FROM DECISION OF DATE OF HEARING DATE OF DECISION REASONS FOR JUDGMENT BY CONCURRED IN BY DISSENTING IN THE RESULT BY

Savoie, J. February 9, 1994 June 22, 1994 January 19, 1995 Ryan, J.A. Rice, J.A. Turnbull, J.A.

COUNSEL: Peter Beardsworth, Esq. for the Appellants Michael A. McWilliam, Esq. for the Respondent BY THE COURT

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Appeal allowed. The matter is remitted to the trial judge. Costs to the appellants of $1,000.00. Mr. Justice Turnbull would have allowed the appeal but dismissed the action. RYAN, J.A. I have had the benefit of reading the decision of my colleague, Turnbull J.A. I agree with his conclusion that the trial judge did not exercise his discretion judicially when he refused Juniberry and Hong's motion to amend their pleadings to plead the non-compliance by Triathlon of the Conditional Sales Act of New Brunswick. The trial judge failed to take judicial notice of the Conditional Sales Act as required by the provincial Evidence Act and the Interpretation Act in addition to his incorrect interpretation of the intent of Rule 27.10(1). Triathlon contended that if the motion to amend were granted, it would be prejudiced and would require an adjournment to re-cast its case in light of the provisions of the Conditional Sales Act. It was therefore apparent that any prejudice to Triathlon by the grant of an adjournment could, in the words of the Rule, "be compensated for by costs or an adjournment". I do not agree, however, with the intended disposition of the case at this level. Triathlon claims that it would have taken a very different approach in the presentation of its case if the amendment had been allowed. There is nothing before us that would indicate that this assertion was not genuine. Triathlon should not be precluded from attempting to prove its case at trial in the face of the amended pleadings. Taking into account the history of this case at the trial level, I would find it precipitous to now enter judgment for the appellants, thus precluding the respondents from presenting their case in light of the pleadings as they ought to have been amended. I would allow the appeal, set aside the judgment and order that the pleadings be amended. I would remit the matter to the trial judge for determination of this latter issue, with the right to the parties to call and submit additional evidence in support of their respective positions. [Page 2] I would award costs to the appellants in the sum of $1,000.00.

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[S] PATRICK A.A. RYAN, J.A. I CONCUR: [S] ROBERT C. RICE, J. A. TURNBULL, J.A. This is an appeal of a decision awarding the respondent, Triathlon Leasing Inc., damages against the appellants, Juniberry Corp. and Ping Ben Hong. The damages represent the deficiency resulting from the difference between the resale of certain equipment and the balance due Triathlon under the terms of a contract, called an Equipment Lease, which contains an option to purchase. The principal issue in this appeal concerns the trial judge's refusing Juniberry and Mr. Hong the permission to amend their Statement of Defence in order that they may plead the failure of Triathlon to comply with the provisions of the Conditional Sales Act, R.S.N.B. 1973, c. C-15. In April 1990, Juniberry acquired Konica photo processing equipment on the terms and conditions set out in the Equipment Lease with Triathlon. The lease was for a term of 65 months and contained an option to purchase the equipment for "$6,778.56 at the end of the 60th month of the Lease Term." The appellant, Ping Ben Hong, signed a Guarantee Agreement with respect to the performance of Juniberry's obligations under the lease. In 1991, Juniberry defaulted on its lease payments. On July 5, 1991, Triathlon repossessed the equipment and sold it on July 26, 1991. Triathlon then sued Juniberry and Mr. Hong, claiming the deficiency as well as repossession and resale expenses.

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In their Statement of Defence, Juniberry and Mr. Hong generally denied any liability to Triathlon and, of relevance to this appeal, they specifically denied (1) liability under the guarantee and (2) that any demands were made on them [Page 2] for payment. This defence was not prepared by the counsel who appeared at trial. When the trial began the new defence counsel moved, without notice, to amend the Statement of Defence, by adding to paragraph 4 after the words "that any demands for payment were made to them", the words "pursuant to s. 15 of the Conditional Sales Act". Counsel for Triathlon objected, claiming prejudice, and requested an adjournment if the amendment was to be allowed, "to prepare in that respect". The trial judge ruled: I will deny the motion with leave to make the motion again at a later date ... during the course of the trial. The trial proceeded. Both counsel agreed to the admission of certain documentary evidence which included the Equipment Lease, the Guarantee Agreement, similar letters dated July 11, 1991 from Triathlon to Juniberry and to Mr. Hong and a receipt advice confirming the sale of the Konica photo processing equipment to Schwartz & Co. Ltd. on July 26, 1991. Before Triathlon closed its case, Juniberry and Mr. Hong again moved to amend the Statement of Defence. In response to a question from the trial judge, as to whether there was anything in the evidence to support the motion, defence counsel replied in the affirmative, arguing that the lease was a conditional sale contract. They also contended that the July 11, 1991, letters to Juniberry and Mr. Hong did not comply with the requirements of s. 15 of the Conditional Sales Act entitling Triathlon to obtain payment of the deficiency from the buyer, Juniberry, or the guarantor of the buyer, Mr. Hong. [Page 3] Again the trial judge ruled:

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I accept the argument from the plaintiff that this is a new defence and would be highly prejudicial to the plaintiff at this stage of the proceedings and I will deny the motion. Triathlon then closed its case. Mr. Hong testified that, from the date of the repossession to that when the equipment was sold to Schwartz & Co. Ltd., the only writing he or Juniberry received were the letters of July 11, 1991. He testified further that the letters (1) did not contain a brief description of the goods; (2) did, however, set a payment deadline of July 25, 1991, or else legal proceedings would then commence; but (3) did not advise whether the goods would be sold. The letter stated, "we shall attempt to facilitate the disposition of same". Neither letter stated that if the amount due was not paid on time the goods would be sold at either a private sale or a public auction nor did they state that Triathlon intended to look to Juniberry or Mr. Hong "for any deficiency on the resale". At the conclusion of the trial, the trial judge repeated his refusal to allow the motion. However, he requested that both counsel submit "post-trial" briefs with respect to the legal significance of the lease, the other documents and the demands for payment, all of which were in evidence. In his decision in favour of Triathlon the trial judge stated: Rule 27.06(14) provides as follows: Pleading Statutes [Page 4] (14) Where a party's cause of action or defence is founded on an Act, he shall plead the specific sections on which he relies. [trial judge's underlining] In this case, although the defence is "... founded on an Act ..." [Conditional Sales Act] neither the Act nor the specific sections were pleaded and cannot therefore be relied upon. On the basis of New Brunswick v. Atlantic Speedy Propane, [reflex, (1990), 96 N.B.R. (2d) 94 (C.A.)] it could very well be that

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the "equipment lease" in the present case was in effect a conditional sales contract. The Defendants cannot, however, in view of the pleadings, require the Plaintiff to prove at trial compliance with the Act. In my view, all that could be required from the Plaintiff at trial in the present case is compliance with the terms of the contract itself. I am satisfied that Triathlon has done so. He awarded Triathlon damages of $31,007.07 Juniberry and Mr. Hong allege that the trial judge erred, firstly, by denying a motion to amend the Statement of Defence to permit the pleading of s. 15 of the Conditional Sales Act and secondly, In failing to determine whether the "leasing agreement" was a conditional sale contract and, if so, whether Triathlon had proved its entitlement to the deficiency. Thus there are two questions in this case. Firstly, should Juniberry and Mr. Hong have been allowed to amend their Statement of Defence to say that Triathlon had not complied with the Conditional Sales Act? Secondly, while the Act is declaratory of the general laws of New Brunswick, is it correct that Juniberry and Mr. Hong cannot rely on, and that [Page 5] Triathlon does not have to comply with, the Act's provisions because it was not pleaded? Regarding an amendment to pleadings, Rule 27.10 of the Rules of Court provides: 27.10 Amendment of Pleadings General Power of Court (1) Unless prejudice will result which cannot be compensated for by costs or an adjournment, the court may, at any stage of an action, grant leave to amend any pleading on such terms as may be just and all such amendments shall be made which are necessary for the purpose of determining the real questions in issue.

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The relevant provisions of the Conditional Sales Act can be summarized as follows. Section 1(b) of that Act defines a "conditional sale" to mean: (b) a contract for the hiring of goods under which it is agreed that the hirer will become or have the option of becoming the owner of the goods upon compliance with the terms of the contract; Section 15 prescribes the procedure to be followed upon a repossession of any goods which are subject to a conditional sale contract if the seller intends to look to the buyer, or the guarantor of the buyer, for any deficiency on a [Page 6] resale. In addition, the section applies "notwithstanding any agreement to the contrary". Before dealing with whether the trial judge should have allowed the motion to amend the Statement of Defence, it is important to note that one of Triathlon's arguments is that Ontario, not New Brunswick law, applied to the interpretation of the Equipment Lease. Indeed, paragraph 22 of the lease reads: 22. APPLICABLE LAW This lease shall be governed by and construed according to the laws of the Province of Ontario ... However, Triathlon neither pleaded the applicability of Ontario law nor called evidence that the statutory or the non-statutory law of Ontario differed from the law of New Brunswick. As a result, New Brunswick law must prevail "as it is the only law available". See J.-G. Castel, Canadian Conflicts of Laws, 2nd ed. (Toronto: Butterworths, 1986) at 146. Generally, foreign law is a question of fact which must be specifically pleaded by the party relying on it, and it must be proven. See Castel p. 139 and pp. 141-45 for the manner in which to plead and prove foreign law. The person relying on foreign law has the burden of

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proving it. If Triathlon intended to rely on Ontario law it should have been pleaded in the Statement of Claim. Did the trial judge err in refusing to grant the amending motion proposed by Juniberry and Mr. Hong? Rule 27.10 begins with a threshold test which a court must consider before [Page 7] deciding whether to permit an amendment to the pleadings. That is, would the granting of the amendment result in prejudice which cannot be compensated for by costs or an adjournment? If no such prejudice would result, then the Court may grant the motion, and if so, on such terms "which are necessary for the purpose of determining the real questions in issue". Rule 2.02 further directs: ... all necessary amendments shall be permitted ... at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. These are rules of procedure as opposed to the substantive law which defines substantial legal rights and claims. 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. Accordingly, amendments to pleadings are generally 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 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. While leave to amend pleadings is a discretionary right, the exercise of that discretion is subject to review on appeal. See Moore v. State Farm Fire & Casualty Company (1982), 42 N.B.R. (2d) 667 (C.A.). [Page 8]

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In reviewing a trial judge's refusal to permit an amendment to pleadings, Stratton, J.A., as he then was, in Moore, approved an appeal court's review of the following questions to determine if an injustice resulted from the trial judge's decision. Did the proposed amendment raise a new issue or was it a "proper and permissable" extension of a claim by the party seeking the amendment? Could it be fairly argued that if the requested amendment were allowed it would (to which I would add, or it should) have taken the other party by surprise? Did the amendment deprive 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"? In this case the trial judge refused to allow an amendment to the pleadings and used Rule 27.06(14) to preclude the application of the Conditional Sales Act to the evidence before him. He did this while acknowledging that, "it could very well be that the 'equipment lease' in the present case was in effect a conditional sale contract". In dismissing the motion a second time the trial judge accepted Triathlon's claim that it was a new defence and highly prejudicial to it. Triathlon argues that if the amendment were allowed it would change the action into one of a substantially different character. It claims the raising of the Conditional Sales Act at trial took it by surprise, and had it known, it submits: ... [it] would most certainly have taken a very different approach to proving its case. Such proof would have included the introduction of evidence concerning the proper law of the contract, whether it was or not a conditional sales contract and [Page 9] whether there had been specific compliance with the sections plead. In this case, Triathlon claims payment from Juniberry and Mr. Hong under the terms of a lease containing an option whereby Juniberry can become the owner of the goods described in the lease. In the Statement of Claim neither the law of a foreign jurisdiction nor facts which allege compliance with, or the non-applicability of, the Conditional Sales Act are pleaded. Juniberry and Mr. Hong both deny

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liability and "specifically deny that any demands for payment were made to them". As such, Triathlon was on notice that liability was in issue with the result that it would have the onus of proving its claim. In New Brunswick, the Conditional Sales Act defines a conditional sale and prescribes the procedure to be followed where a seller repossesses goods and intends to seek any deficiency on a resale from the buyer or a guarantor of a buyer. By its terms, this lease is a conditional sale contract. Accordingly, to be successful in establishing its right to the deficiency and in obtaining an order to enforce its claim, Triathlon was required, by the substantive law of New Brunswick, to prove that either it had complied with the provisions of the Conditional Sales Act, or the Act did not apply. As such, the Act's provisions should not have been a surprise to Triathlon. Granting the motion would not change the nature of the case: Triathlon would still be claiming a deficiency resulting from a resale of goods that are subject to the terms of the lease. In addition, the motion does raise a prima facie defence, namely that Triathlon has not complied with the requirements of New Brunswick law to prove its claim. Finally, for the reasons which follow, the proposed amendment would not deprive Triathlon of any other claim which would have otherwise been available to it. [Page 10] Triathlon should not have been surprised by an argument that the Conditional Sales Act was relevant. Further, its allegation that it was prejudiced by the motion is not justified. There was no change to the nature of the case; it was a "proper and permissable" extension of the defence raised by Juniberry and Mr. Hong that they are not liable for the deficiency. As such, since the issue raised is a matter directly related to "the real questions in issue" and necessary for the "just determination of the matters in dispute", the motion ought to have been allowed. Triathlon argued, as already stated, that if the motion had been allowed, it would have taken a very different approach to proving its case. However, regardless of the trial judge's ruling, the onus was on Triathlon to prove its case of being entitled to a judgment for the deficiency.

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Triathlon, in order to substantiate its claim, was required to prove that it had complied with the statute law of New Brunswick. Rule 27.06(14) does not relieve a party from the onus of proving its case should another party fail to plead a statute which is declaratory of the general law of New Brunswick. An Act which is declaratory of the general law need not be pleaded unless the Act contains provisions which require that it must be specifically pleaded, e.g., the Limitation of Actions Act or the Statute of Frauds. Section 4 of the Interpretation Act, R.S.N.B. 1973, Chap. I-13 reads: 4. Every Act shall be judicially noticed, without being specifically pleaded. Section 70(1) of the Evidence Act, R.S.N.B. 1973, c.E-11 reads: [Page 11] 70(1) Judicial notice shall be taken of (e) all statutes and Acts of the Legislature ...

In R. v. Steam Tanker, "Evgenia Chandris" (1976), 12 N.B.R. (2d) 652 (S.C.C.) Laskin, C.J.C. said at pp. 659-60: At common law, judicial notice was taken of public or general statutes but not of private enactments nor of subordinate legislation such as orders-in-council or regulations. By legislation of a common variety, such as is found in ... s. 70(1) of the New Brunswick Evidence Act, R.S.N.B. 1973, c. E-11, judicial notice is obligatory of all statutes, public or private. Hence, it is unnecessary under such a dispensation to produce to the Court the text of a piece of legislation, although this would invariably be done when its interpretation is in issue. Where an Act is pleaded, Rule 27.06(14) requires the pleading of the specific sections of that Act upon which a party relies. See also, John Sopinka, Sidney N. Lederman and Alan W. Bryan, The Law of Evidence in Canada (Toronto and Vancouver: Butterworths, 1992) at pp. 983-84.

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Considering that judicial notice of the Conditional Sales Act ought to have been taken, as well as the general interpretation that should be given to Rules 27.10 and 2.02 permitting amendments unless prejudice will result which cannot be compensated for by costs or an adjournment, I am of the opinion that the trial judge erred in the exercise of his judicial discretion. [Page 12] Since the trial judge refused to determine whether Triathlon had complied with the Conditional Sales Act, this Court can make that determination because it was an issue raised before the trial judge and there was evidence adduced at trial. The Lease contains an option to purchase which, if exercised, entitled Juniberry to become "the owner of the goods". The Lease is a conditional sale contract as defined by New Brunswick law. The letters of July 11, 1991 to Juniberry and Mr. Hong do not contain the information required by subsection 15(4) of the Conditional Sales Act; there is not: (a) (b) (c) a brief description of the goods, an itemized statement of the amount due on the contract or the expenses and costs of repossession, a statement that, unless payment is made by a specified date, the goods will be sold by either private sale or by public auction, and a statement that the seller intends to look to the buyer or guarantor of the buyer for any deficiency on the resale.

(d)

There was no evidence that the laws of another jurisdiction applied and no other evidence of compliance with the Conditional Sales Act. As a result, Triathlon is not entitled to a judgment for the deficiency. [Page 13] This Court has already ruled that the s. 15 requirements must be strictly complied with by a seller who intends to seek a deficiency on a

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resale. See Canadian Acceptance Corporation Ltd. v. Melanson (1976), 15 N.B.R. (2d) 129 (C.A.) and General Motors Acceptance Corporation of Canada Limited v. Oakes and Oakes (1977), 18 N.B.R. (2d) 569 (C.A.). I would allow the appeal, set the judgment aside and award costs to Juniberry and Mr. Hong throughout in accordance with the Rules of Court. [S] WALLACE S. TURNBULL, J.A.

6. LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII) Print: PDF Format Date: 2005-04-08 Docket: M/C/1045/02 Parallel citation 290 N.B.R. (2d) 1 s: http://www.canlii.org/en/nb/nbqb/doc/2005/2005nbqb142/2005nbqb1 URL: 42.html Noteup: Search for decisions citing this decision Reflex Record (related decisions, legislation cited and decisions cited) Decisions cited

Canada v. Pelletier, reflex 58 N.B.R. (2d) 184 Walsh v. Dewolfe and Maple Ford Sales Ltd.; Anderson v. DeWolfe and Maple Ford Sales Ltd., reflex 84 N.B.R. (2d) 76 COURT FILE

2005 NBQB 142 NO. M/C/1045/02

182

IN THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK

TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON B E T W E E N: LEONARD LeBLANC,

Plaintiff, -and-

GERALD BASTARACHE,

Defendant.

BEFORE: George Rideout AT: DATE OF HEARING: DATE OF DECISION: APPEARANCES:

The Honourable Mr. Justice

Moncton, New Brunswick April 7, 2005 April 8, 2005

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Richard E. DeBow on behalf of the Plaintiff; Tracey Deware on behalf of the Defendant. RIDEOUT, J. [1] There are two motions before this Court. The Defendant, Gerald Bastarache, has moved that the Plaintiff, Leonard LeBlancs action be struck for his failure to serve his Statement of Claim on Mr. Bastarache within the time limit provided for in Rule 26.01(a). The second motion is on behalf of Mr. LeBlanc and requests an extension of time for the service of his Statement of Claim pursuant to Rule 16.08(1). I am considering both motions together as one. FACTS [2] This matter arises out of a motor vehicle accident which occurred on October 18, 2000. In the Notice of Action with Statement of Claim Attached which was filed October 17, 2002, but not served, it is alleged in paragraph 3:

3. On the 18th day of October, 2000 at approximately 8:30 a.m., the plaintiff had turned left from rue de lEglise, St. Antoine, NB, and was stopped in the plaintiffs motor vehicle, in his driveway. Suddenly, and without warning, the plaintiffs motor vehicle was struck on its left side by the defendants motor vehicle, causing extensive damage to the plaintiffs motor vehicle. The defendants motor vehicle careened off the plaintiffs motor vehicle and came to rest against a truck parked in the plaintiffs yard.

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[3] Needless to say, a defence has not yet been filed and therefore we do not know Mr. Bastaraches position on all the allegations. The affidavit filed on behalf of Mr. Bastaraches insurer takes no position with respect to liability or the truth of the allegations in paragraph 3. [4] It is not contested that Mr. LeBlanc did not serve Mr. Bastarache with the Notice of Action with Statement of Claim Attached. [5] Mr. LeBlanc states in his affidavit sworn March 31, 2005 that in the accident he sustained injuries to his head, neck, lower back and left side. He has neck spasms, headache and ringing in his ears. He also states that during the period following the accident he went through a stressful period with his wife from whom he is now separated. In his affidavit he states that he did not want his lawyer, John Murray, to proceed with the action until he knew how his medical problems were going to resolve. [6] Mr. LeBlanc, also, stated in his affidavit sworn on March 31, 2005 that he only became aware of the fact that Mr. Murray did not serve the Notice of Action with Statement of Claim attached on March 31, 2005. He further states that if the motion to extend the time for service is granted he will proceed with his action on a timely basis. [7] John Murray in his affidavit of April 1, 2005 states that Mr. LeBlanc was not aware of the non-service and was in no way involved with the failure to serve the Notice of Action with Statement of Claim attached. [8] Mr. Murray went on to say that he was dealing with Wayne MacLean, an adjuster for Mr. Bastaraches insurer. He also stated that he is unable to locate his file consequently he has no copies of correspondence or documents which would indicate what he had done on the file. Mr. Murray also stated the following:

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6. THAT to the best of my recollection I forwarded Dr. Ronald Fontaines Medical Report via to Wayne MacLean, Adjuster for AXA Insurance Company, as it is my practice to do. 7. THAT attached hereto and marked Exhibit B is the Notice of Action with Statement of Claim Attached, which I filed with the Court on October 17th, 2002. 8. THAT to the best of my recollection I sent the Notice of Action with Statement of Claim Attached to Wayne MacLean via fax, again, as it is generally my practice to send all documentation to adjusters in motor vehicle actions. 9. THAT during the conduct of this action I had several telephone conversations with Wayne MacLean and received correspondence from him. 10. THAT during our telephone conversations all discussions were cordial and I indicated to Mr. MacLean that my client wants to see how he is going to be before proceeding to negotiate a settlement of his claim. 11. THAT attached hereto and marked Exhibit C to this my Affidavit is a fax received by me from Wayne MacLean and dated September 19th, 2003. That fax refers to a telephone conversation that we had on August 21st, 2003.

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12. THAT attached hereto and marked Exhibit D to this my Affidavit is a copy of a fax received by me from Wayne MacLean dated July 27th, 2004 which refers to another fax dated April 27th, 2004 and a telephone call on July 27th, 2004. 13. THAT as noted above I have not been able to find my file. 14. THAT it was not until February nd, 2005 when I received the Notice of 22 Motion from Murphy Collette Murphy by mail that I realized that there was a difficulty with respect to my failure to have the Notice of Action with Statement of Claim Attached served within the six month period required by the Rules of Court. [9] Counsel for Mr. Bastaraches insurer advised the Court that they do not contest paragraphs 6 14 and further acknowledge receipt of a copy of the Notice of Action with Statement of Claim Attached. ISSUES [10] The issue before this Court, simply put, is should the Court extend the time for service of the Notice of Action with Statement of Claim attached or should the action be struck for the failure to serve? ANALYSIS [11] Rule 16.08(1) requires that once a Notice of Action with Statement of Claim Attached has been filed with the Clerk of the appropriate Judicial District, it must be served within six months. In his motion Mr. LeBlanc relies on Rules 1.03(2); 2.02; 3.02(1) and (2) which read:

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1.03 Interpretation (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 2.02 Effect of Non-Compliance A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. In particular, the court shall not set aside any proceeding because it ought to have been commenced by an originating process other than the one employed. 3.02 Extension or Abridgment (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules. (2) A motion for extension of time may be made either before or after the expiration of the time prescribed. [12] Mr. Bastarache in his motion relies upon Rule 26.01(a) which provides: 26.01 Where Available

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A defendant who is not in default under these rules or under an order of the court, may apply to have the action dismissed for delay where the plaintiff has failed (a) to serve his Statement of Claim on all the defendants within the time limited for so doing [13] In cases of this nature, as a general comment, it is accepted that the Court should look to see if there is a justifiable excuse for the delay and what prejudice might accrue to either party. In the latter instance regard must be had to the possible prejudice to the Defendants action due to things like the unavailability of witnesses, failing memory, loss of documentation. [14] Mr. LeBlanc has referenced a number of authorities. In Martin v. Goodine (1983), 53 NBB (2d) 52 (QB) the Court was faced with a situation in which a lawyer was lax in pursuing the action. In fact, the lawyer failed to serve the Defendant within the six month period. Deschnes, J. as he then was said at paragraphs 33 and 34: 33 In my view, if the plaintiff is successful in establishing that the failure to comply with Rule 16.08(2) is not as a result of his personal involvement but rather the result of laxity on the part of his solicitor and that no prejudice to the defendant has occurred, the conduct of his solicitor should be treated as a neutral factor and the court in such circumstances should concern itself primarily with the rights of litigants and not the conduct of solicitors. 34 On the other hand, if a defendant's position has been prejudiced as a result of

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the failure on the part of the plaintiff's solicitor to comply with Rule 16.08(2) or failure to proceed without delay to present a motion for an extension order, I fail to see how a defendant should be visited by the consequences of the plaintiff's solicitor's mistakes; under such circumstances, as between litigants, the plaintiff stands in a better position than the defendant by reason of the fact that the former would probably have a cause of action against his solicitor whereas the defendant must live with the prejudice caused.

[15]

Also, in Canada v. Pelletier reflex, (1983), 58 NBR (2d) 184 (QB) the Court stated at paragraphs 6 and 7: 6 On the other hand, counsel for the plaintiff submitted that the plaintiff would itself suffer serious prejudice if the court did not exercise its discretionary power in the present case and allow service of the writ of summons on the defendant. He relied on 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), 53 N.B.R.(2d) 52; 138 A.P.R. 52; Moffat v. Rowding, 14 D.L.R.(3d) 186. In particular, he relied on the case of Simpson v. Saskatchewan Government Insurance Office, 65 D.L.R.(2d) 328, and cited the following passage from page 333 of the decision: "In an application to renew a writ of summons the basic question which

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faces the court is, what is necessary to see that justice is done? That question must be answered after a careful study and review of all the circumstances. If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. This should be done even if the only reason for nonservice is the negligence, inattention or inaction of the plaintiff's solicitors and notwithstanding that a limitation defence may have accrued if a new writ was to be issued. If the non-service of the writ was due to the personal actions of the plaintiff, that, of course, would be a fact to be considered by the court. Each case should be considered in the light of its own peculiar circumstances and the court, in the exercise of its judicial discretion, should be determined to see that justice is done." 7 The above-mentioned cases clearly reveal that a court has a fairly wide discretionary power to extend the time for service of a writ of summons and to allow service of the writ even if the action is statute-barred. It is the court's responsibility to consider all of the circumstances which caused the delay in serving the originating process, the length of the delays and the reasons for them

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including counsel's negligence or carelessness. 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 extension of time for service does not prejudice or work any injustice to either of the parties. If, for example, a defendant discharged a third party from his share of the liability towards the plaintiff after expiry of the time for service, the extension of the period would then prejudice [*page188] the defendant's defence of his rights against the plaintiff by preventing him from asserting that third party's liability. Consequently, it is the court's responsibility to decide whether there is an injustice caused to the plaintiff by refusing the extension of time or whether the extension of time causes an injustice to the defendant by preventing him from fully asserting every possible ground of defence at his disposal in defence of the action. In the present case, it is true that a period of almost three years has passed since the expiry of the twelve month period following the issue of the writ of summons, as provided 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 for the plaintiff's delay in having the writ of summons served. The only cause for the plaintiff's delay is the negligent failure of its counsel to take the necessary steps within the required time. The defendant submitted, on the other hand, that the delay caused her prejudice in that during that delay, she contracted other debts in

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order to further her studies. However, she did not indicate how the delay had interfered with her asserting all possible grounds of defence against the claim brought against her or how she was deprived of a defence which she might otherwise have been able to assert. Moreover, it is hard to understand how the fact of having succeeded in finishing her studies, even though she contracted other debts, could have caused her an injustice. The basis of that submission is far from clear. One might rather think that the plaintiff's delay in asserting its claim gave the defendant a real advantage by permitting her to finish her university studies. [16] The evidence of John Murray was not contested. We also have evidence that the insurers of Mr. Bastarache had a copy of the Notice of Action with Statement of Claim Attached shortly after it was filed. As mentioned, the allegations as to how the accident happened were not contested. While not deciding the issue of liability, it would appear that liability should not be too much of an issue. [17] In my view, the Court should be more mindful of possible prejudice to the Defendant when liability is an issue. In that situation the passage of time can affect a witness and their memory. But in an assessment of damages situation this is less so because there is usually ample medical evidence available including the right to an independent medical examination. [18] The Defendant in this matter relied heavily on Walsh v. DeWolfe reflex, (1987), 84 NBR (2d) 76 which denied a motion to extend the time of service. The facts are somewhat different from this case. The insurer of one of the defendants had destroyed their file. They also had denied coverage. Finally, much of the case would rely on oral testimony which with the

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passage of time might have been affected and this put the insurer to a disadvantage. In my view Walsh is distinguishable on its facts from the case before me. [19] I am satisfied that the delay in service was caused by the lawyer which in the circumstances should be treated as a neutral event. I am also satisfied that the Defendants insurer has not and will not suffer any prejudice if the Plaintiffs motion is granted. However, prejudice will occur to the Plaintiff if the time period for service is not extended. Therefore justice will be done if the time period for service is extended. DISPOSITION [20] The motion of Leonard LeBlanc is granted and the time prescribed under Rule 16.08(1) for service of the Notice of Action with Statement of Claim attached upon Gerald Bastarache is extended for a period of 30 days from the date of these reasons. [21] [22] The motion of Gerald Bastarache is dismissed. In my opinion, there should be no order as to costs. DATED at Moncton, New Brunswick this 8th day of April, 2005.

George S. Rideout Judge of the Court of Queens Bench of New Brunswick _______________________________________________________________

7.

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East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003 NBQB 268 (CanLII) East Texas Distributing Inc. v. Video Solutions (Atlantic) Ltd., 2003 NBQB 268 (CanLII) Print: PDF Format Date: 2003-06-16 Docket: N/C/71/02 Parallel citation 265 N.B.R. (2d) 30 s: http://www.canlii.org/en/nb/nbqb/doc/2003/2003nbqb268/2003nbqb2 URL: 68.html Noteup: Search for decisions citing this decision IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MIRAMICHI

Citation: 2003 NBQB 268 Date: 2003 07 07 Between:

Docket: N/C/71/02

East Texas Distributing Inc., carrying out business under the name and style of ETD Entertainment Distributing, Plaintiff - and Video Solutions (Atlantic) Ltd., Video Solutions (Eastern) Inc., and Robert Hanscomb,

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Defendants

Before: Date of hearing: Date of decision:

Mr. Justice Thomas W. Riordon June 16, 2003 June 16, 2003

Appearances: Ann Marie MacDonald John L. McAllister DECISION RIORDON, J.: [1] The present motion is one which the defendants, Video Solutions (Eastern) Inc. and Robert Hanscomb request that the noting in default and a default judgment signed against them by the Clerk of the Court on August 9th, 2002 be set aside on terms and conditions as may be just. The request, which is made pursuant to Rule 21 of the Rules of Court on behalf of these defendants, is opposed by the plaintiff. [2] The present proceedings, that I must address, were commenced by an Amended Notice of Action. I understand that there was a previous Notice of Action and there was a minor amendment relating to the fact that the defendant Robert Hanscomb, I am told, resides in the Province of Nova Scotia. Insofar as I am concerned we are dealing with an Amended Notice of Action and Statement of Claim, which was filed with the Clerk of the Court on June 20th, 2002. The plaintiffs claim is in relation to an alleged debt - for the Plaintiff - for the Defendants

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owing to the plaintiff by the corporate defendants or either of them or both of them allegedly guaranteed by the defendant Robert Hanscomb. [3] The Amended Notice of Action and Statement of Claim was served on all defendants on July 17th, 2002 and it was served in the City of Miramichi. The Notice of Action, a copy of which is included in the documentation filed claims a debt outstanding to the plaintiff including interest of $315,356.91. This includes interest to March 7th, 2002 and interest is claimed from that date to the date of payment of judgment at 36% per annum. It is noted that interest has been apparently charged for some period of time at the rate of 4% per month. Costs are claimed on a solicitor client basis or in the alternative party and party costs are requested. [4] In any event after the Notice of Action and Statement of Claim were served upon the defendants a Statement of Defence and a Demand for Particulars were in fact prepared by the solicitor of the two defendants mentioned who are making this application, Video Solutions (Eastern) Inc. and Robert Hanscomb, Mr. John McAllister. The Statement of Defence and Demand for Particulars were in fact filed with the Clerk of the Court for this judicial district on August 2nd, 2002 well within and five to six days prior to the deadline for filing a Statement of Defence with the Court pursuant to the relevant Rules of Court. After filing these documents with the clerk, according to the affidavit evidence before me, copies were placed by the staff at the solicitors office on file. This was a Friday before a long weekend. The secretary who was working on the file for Mr. McAllister had some more time off after the long weekend. By oversight the Statement of Defence and Demand for Particulars, more critically the Statement of Defence, was not served on the defendants solicitor Mr. Tony Richardson. [5] It is said by Mr. McAllister in his affidavit that when the documents were returned from the clerks office, as I stated, his secretary was on holidays. It was only on the 12th of August 2002 that Mr. McAllister became aware of the fact that the Statement of Defence and correspondence that had been completed to be sent to the solicitors for the plaintiff had not in fact been mailed but were still in his office. This obviously would be a concern to any solicitor. On the same day August 12th a copy of these documents were immediately sent by fax in the morning and by mail, I believe registered mail if Im not mistaken, but in any event by mail to the plaintiffs solicitor.

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[6] The following day on August 13th Mr. McAllister, according to his affidavit, was informed by the plaintiffs solicitor, Mr. Richardson, that default judgment had in fact been signed on August 9th, 2002 against all defendants even though the solicitor for the defendants, Video Solutions (Eastern) Inc. and Robert Hanscomb, had filed with the Clerk a Statement of Defence on August 2nd. [7] Mr. McAllister states in his affidavit that when he was informed on August 13th of this fact by Mr. Richardson, he called the Clerk of the Court, obviously to inquire and was informed at that time of the circumstances leading up to that signing of the judgment against the defendants that he represents. These circumstances are noted in the noting of default by the clerk in the request to note these defendants in default, a letter to the clerk dated August 7th signed by Mr. Richardson. In his letter he encloses the Notice of Action with Statement of Claim together with affidavits of service and goes on to state as the defendants have failed to file and serve a Statement of Defence and as the time for doing so has expired please note the defendants in default pursuant to Rule 21.01 of the Rules of Court. The letter contains a notation, which I understand to be notes made by the Clerk of the Court, Mr. Cripps, the notation reads: August 9th, 2002, telephone consultation with Tony S. Richardson, he advised that he has not been served with a Statement of Defence. I advised one was filed and he advises that he has not been served within the time prescribed, therefore requests that the defendants be noted in default and judgment entered against the defendants pursuant to Rule 21.01. As a consequence on August 9th, I assume it was after that telephone conversation between Mr. Richardson and the Clerk, the Clerk of the Court, Mr. Matthew Cripps, his signature is there, did endorse the letter with the noting in default of all defendants. His notation in default is dated August 9th, 2002. The letter had been received and filed in the clerks office on August 8th. [8] On the same day August 9th, 2002, Mr. Cripps signed a judgment in form 21A and that judgment reads in part and I quote: Upon reading the Statement of Claim, and proof of its service upon the Defendants having been filed, and no Statements of Defence having been filed; (Emphasis mine)

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It is hereby ordered that the Defendants, jointly and severally, forthwith pay to the Plaintiff the sum of $33,490.28 and the further sum of $1,187.50 for the costs of this action. [9] Rule 21.01 of the Rules of Court states and I quote and it is under the heading Disposition without trial Default Proceedings: 21.01 Noting Default (1) Where a defendant fails to file and serve his Statement of Defence and the time for doing so has expired, the plaintiff may, upon filing proof of service of the Statement of Claim, require the clerk to note in default.

Rule 21.02 sets out the consequences of noting in default. [10] So to summarize the situation or the factual situation, the background information, when all defendants were noted in default on August 9th, the solicitor for two of the defendants, Video Solutions (Eastern) Inc. and Robert Hanscomb, had in fact prior to this date and I believe some seven days before or thereabouts, filed a Statement of Defence on behalf of those defendants, with the Court. By oversight and error he did not serve the plaintiff with a copy of this defence within the time prescribed as is required by the Rules of Court. The solicitor for the plaintiff was made aware that a Statement of Defence had been filed by the Clerk of the Court prior to the noting in default of all defendants. [11] Since August 12th up to the time of the filing of the present motion, considerable correspondence and telephone conversations have taken place between the solicitor for the defendants, Mr. McAllister and the solicitor for the plaintiff, Mr. Richardson. Copies of correspondence and the summaries of the conversations are set out in the documentation that has been filed. I quote from the brief of the defendant filed by Mr. McAllister where he sets out the following in paragraphs eight to eighteen. He says: 8. The filed Statement of Defence and Demand for Particulars were inadvertently placed in the file and not served on the Solicitor for the Plaintiff until Monday, August 12, 2002.

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9. Default Judgment was signed on August 9, 2002. 10. On August 13, 2002, Solicitor Richardson faxed a copy of Judgement to Solictor McAllister. 11. Solicitor McAllister on August 14, 2002 called Solicitor Richardson and being unable to speak to him, left a message on his personal answering machine. 12. Solicitor Richardson returned Solicitor McAllisters call on August 19, 2002 wherein Solicitor Richardson undertook to determine his clients position as to the possibility of setting aside the Judgement as against Video Solutions (Eastern) Inc. And Robert Hanscomb and gave assurance that he would not oppose a motion to set aside Judgment based upon delay. 13. Solicitor McAllister called Solicitor Richardson on September 10, 2002, wherein it was confirmed that Solicitor Richardson was still awaiting instruction from his client. 14. Solicitor Richardson advised Solicitor McAllister by faxed message on November 5, 2002 that his client would not consent to setting Judgment aside. 15. Subsequent to a telephone converstaion on November 13, 2002, Solicitor Richardson faxed to Solicitor McAllister a copy of Guarantee (single page as Exhibit A Robert Hanscomb affidavit). 16. On February 4, 2003, the Defendant, Robert Hanscomb executed an Affidavit after having viewed the single page guarantee and having provided to Solicitor McAllister a copy of letter from ETD Distributing dated May 25, 1995 (Exhibit B affidavit of Robert Hanscomb). 17. Order for Seizure and Sale issued on March 10, 2003. 18. Notice of Motion served on Solicitor Richardson on March 27, 2003. [12] I note from reviewing the documentation that it was only on December 12, 2002 that Solicitor Richardson registered the Judgment in the Registry Office in Northumberland County and in the New Brunswick Personal Security Registry. I note as well that on March 10, 2003 and Order of Seizure and Sale was forwarded to the Sheriff of Northumberland County and I

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believe that precipitated the present motion or at least made the situation somewhat more urgent. I note also from the documentation filed that on March 12th an application was made to register the Judgment in the Province of Nova Scotia where I am told that Mr. Hanscomb resides and allegedly owns assets. On March 19th an order was made by the Supreme Court of Nova Scotia allowing the judgment to be registered in that province. [13] That leads up to March 27th when the present motion was filed and made returnable only today somewhat in excess of some two months later. It is opposed by the plaintiff and includes an affidavit in opposition sworn to by Mr. Richardson and one sworn to by Angela Ventura of Mississauga, the office manager of the plaintiff company. In support of the motion I have affidavits of Mr. McAllister and Mr. Hanscomb. [14] In the affidavit of Ms. Ventura a reference is made to an alleged agreement that was concluded in 1995 between the plaintiff and a company described as Video Solutions and the documentation refers to Video Solutions. There is also reference to an alleged personal guarantee given by Robert Hanscomb to guarantee indebtedness of a person or company called, and I quote from the document, the applicant and the alleged guarantee that has been filed refers to a guarantee for monies due to ETD. Mr. McAllister points out that that reference to ETD is certainly different than the description of the plaintiff in the proceedings before the Court, East Texas Distributing Inc. carrying on business under the name and style of ETD Entertainment Distributing. [15] I note from the documentation that is filed that includes some documentation from the Office of Corporate Affairs that Video Solutions (Atlantic) Ltd. was registered on November 17th, 1992 with Corporate Affairs New Brunswick and that Video Solutions (Eastern) Inc. was only registered on October 5th, 2000. [16] In the affidavit in support of the motion Mr. McAllister states that the defendant, Mr. Hanscomb and the defendant, Video Solutions (Eastern) Inc. have a good defence and the terms of that defence are outlined in the Statement of Defence that was filed with the Clerk. It should be noted, to the best of my knowledge and as far as I am informed, the defendant, Video Solutions (Atlantic) Ltd., has not filed a defence to the proceedings and obviously none has been served upon the solicitor for the defendant.

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[17] In the Statement of Defence that has been filed with the Clerk, prior to the deadline for filing a defence, the defendant, Video Solutions (Eastern) Inc., denies that it is indebted to the plaintiff for the amount claimed. It alleges that it was incorporated only in the year 2000 and commenced operations in 2001 and states that at no time did it have any business arrangements with the plaintiff. Mr. Hanscomb denies signing a guarantee to the plaintiff and requests that the action be dismissed with costs. [18] As I stated, in opposing the motion and the request to set aside the noting in default and to set aside the judgment, the plaintiff relies upon the detailed affidavits of Mr. Richardson and Ms. Angela Ventura. I do note that Mr. McAllister states in his affidavit that he was under the impression that any delay in making an application to set aside the judgment would not prejudice such an application. I note that Mr. Richardson disputes that. Mr. McAllister states in paragraph eleven of his affidavit that Anthony S. Richardson, solicitor for the plaintiff, returned my call on August 19th, 2002 at which time he undertook to obtain further instructions from his client and that he would not oppose a notice of motion to set aside the judgment based on delay. Mr. Richardson in paragraph fourteen states, during my conversation with Mr. McAllister on August 19th, 2002 he requested that I verify with my clients that they would consent to the setting aside of the default judgment. I told Mr. McAllister I sometimes had difficulty communicating with my clients given their proximity to New Brunswick and that I may not be able to receive instructions from them immediately. I did not unequivocally state that I would not oppose a motion based on delay as stated in paragraph eleven of Solicitor McAllisters affidavit. Attached hereto and marked as Exhibit H is a copy of my fax correspondence to Mr. McAllister confirming that I was seeking instructions from my clients for default judgment. [19] Certainly the positions of opposing counsel are contradictory as to what was understood and it is quite possible that there was a misunderstanding of what was discussed and memories are sometimes not always reliable. Unfortunately nothing was put down in correspondence to confirm what was discussed in that particular telephone conversation. In any event there was a delay from mid August to sometime in November before Mr. McAllister was informed that the plaintiff would not consent to setting aside the noting in default and the default judgment. There has been obviously significant delay which causes concern between November and the time the present motion was filed in March of this year, that is between November 5th, 2002, when Mr. McAllister was made aware that the consent would not be

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given and March 27th when this motion was filed. Mr. McAllister explains that by saying he had difficulty reaching his client, Mr. Hanscomb, who was in Florida for extensive periods of time. I find that somewhat difficult to accept as being a reasonable excuse for such a delay. [20] I think that a solicitor aware of the situation and knowing that default judgment had been signed and having knowledge of what the case law is in relation to applications of this nature to obtain relief would have applied to set aside the judgment immediately in August after being informed that there was a default judgment. That is unless there were not some understanding that time would not be a factor in opposition to such a motion because the test laid down by the Court in many decisions is clear. One of the factors that must be considered in the exercise of judicial discretion to set aside a noting in default is that the motion to set aside the noting in default must be made as soon as it comes to the attention of the defaulting party. [21] Rule 21.08 sets out that:

A judgment obtained under this rule may be set aside or varied by the court on such terms as may be just, including provision that (a) an execution issued pursuant to the default judgment remain on file in the office of the sheriff pending the final disposition of the proceeding, on condition that enforcement of the execution be stayed in the meantime, or on such other condition as the court may order, and (b) a memorial of the judgment remain undischarged in a registry office pending the final disposition of the proceeding. [22] As I understand the position of the defendants counsel there is no objection to similar terms being put in place to protect the plaintiff and that in the circumstances, where the situation that has arisen is due to the fault of the solicitor, it is the position of Mr. McAllister that he accepts responsibility, that it was not the responsibility of his client and that he is prepared to consider whatever sanction the Court may order for costs. [23] The plaintiff opposes the application and has filed a very thorough detailed brief and relies upon the cases in similar situations such as this and argues that the noting in default of both defendants and the default judgment should not be set aside in that the defendants and their counsel have

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not met the test to set aside a default judgment. In other words there has been unusual delay in making the application. The application was not made immediately after it came to their attention and more particularly at least sometime shortly after November. This was when Mr. McAllister was informed that the plaintiff would not consent to the noting in default and the default judgment being set aside. It is also argued that the defendants have not established by factual evidence a valid defence on the merits. I believe it is acknowledged that some explanation for the default has been given. I am not sure about the defendants position with respect to the requirement of intention to defend throughout but I think there was an intention to defend throughout. It is obvious by the fact that the Statement of Defence was filed. So it appears that the major opposition and major reliance of the plaintiff is with respect to the delay in making this application to the Court and also that the defendants have failed to establish by factual evidence a valid defence on the merits. [24] I have looked at all of the material. I believe that in the circumstances of this case, from my understanding of what transpired, that the several cases relied upon by the plaintiff in support of its opposition to setting aside the default judgment must be distinguished and can be distinguished from the factual situation of what we have before the Court at the present time in this case. 1) We have a situation where a defence was in fact filed with the Clerk of the Court well within the time prescribed by the Rules of Court on behalf of the defendants, Video Solutions (Eastern) Inc. and Robert Hanscomb. 2) Counsel for the plaintiff was obviously very well aware of the fact that the Statement of Defence had been filed with the Clerk of the Court on behalf of these defendants. This is confirmed by the notation by the Clerk of Court on the correspondence of a conversation with Solicitor Richardson in which the Clerk did inform the solicitor that a Statement of Defence had in fact been filed on behalf of the two defendants in question and that it had been filed prior to the deadline for filing. In those circumstances the solicitor for the plaintiff did request that the Clerk note the defendant in default and sign default judgment despite being aware that a defence had in fact been filed by another solicitor. 3) No enquiry was made to this other solicitor as to why the Statement of Defence was not received by counsel. There could be countless reasons such as a document being delayed in the mail, misplaced by someone in the plaintiffs solicitors office or any other reason. 4) The defendants obviously did not comply with the requirements of the Rule but they complied at least partially with the requirement of filing the Statement of Defence with the Clerk of the Court. The Rule states that where a defendant fails to file and serve a Statement of Defence. I realize it says fails to file and serve within the

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time so doing, the plaintiff may, upon filing proof of service, require the clerk to note the default. There was at least partial compliance and the solicitor for the plaintiff was aware of that and he was aware that the Statement of Defence had been filed with the clerk prior to requesting that the defendant be noted in default. 5) Counsel for the plaintiff was in fact served with a copy of the Statement of Defence on or about August 12th within days of the time limit after earlier being aware before the Judgment was signed that a Statement of Defence had been filed with the Clerk of the Court. All of this in my view distinguishes the circumstances of this case without question from the other matters and cases that are referred to in the briefs by both counsel in relation to an application under Rule 21.08 for setting aside a default judgment. [25] I believe from my review of the material this is a situation where a Court must and should apply Rule 1.03 and Rule 2.02. 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 and I refer to Rule 2.02. It states: 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 proceedings, upon proper terms, to secure the just determination of the matters in dispute between the parties. ... [26] I believe that this is a situation where through no fault of the named defendants, by reason of an oversight in the office of their solicitor, that relief should be permitted so as to ensure and to secure the just determination of the matters in dispute. The only way to do that when one looks at the nature of the claim, what has transpired and the matters in dispute and that these defendants who filed a Statement of Defence with the Clerk of the Court well within the time prescribed, is to allow these defendants to defend the claims brought against them and set aside the noting in default and the judgment. [27] I believe that the reasons of Chief Justice Hughes in the decision of Brunswick International (Canada) Limited v. Albert, (1975), 12

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N.B.R. (2d) 296 at page 305 are applicable in the present instance. Chief Justice Hughes in that case stated in the concluding paragraph: ...I am of the opinion that the failure of the defendants solicitor in presenting proper material to set aside a judgment regularly entered resulted from a misconception of the necessity of setting out facts upon which the defence claimed by the defendant is based and because it would work a great injustice on the defendant, if he has in fact the defence to the action, if he were compelled to satisfy a judgment which was entered because of a solicitors error, especially where the practice in this Province has not been firmly established. In this case there was an error made by the solicitor and I am of the view that it would not be fair to not allow the motion in such circumstances and allow the defendants in question the opportunity to defend by reason of the fact of an oversight by their solicitor or someone in their solicitors office. [28] For the foregoing reasons I set aside the noting in default. I set aside the default judgment. In my view as this matter should have been resolved without the necessity of a contested application I make no order as to costs and I make no order as to terms or conditions pursuant to Rule 21.08. The application and motion is allowed and the default judgment and the noting in default are set aside. Thomas W. Riordon, J.C.Q.B. _______________________________________________________________

8. Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Print: PDF Format Date: 2003-12-19 Docket: E/C/24/02 Parallel 268 N.B.R. (2d) 271 citation

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s: http://www.canlii.org/en/nb/nbqb/doc/2003/2003nbqb454/2003nbqb4 54.html Noteup: Search for decisions citing this decision Reflex Record (related decisions, legislation cited and decisions cited) URL: Decisions cited

Bridges v. Daeres, reflex 83 N.B.R. (2d) 331 Bridges v. Daeres, reflex 64 N.B.R. (2d) 412 Canada v. Pelletier, reflex 58 N.B.R. (2d) 184 Hill v. Mattatall, reflex 183 N.B.R. (2d) 320 Jardine v. Kent General Insurance Corp. et autres, reflex 90 N.B.R. (2d) 213 Spencer v. King and Mockler, Allen & Dixon, reflex 59 N.B.R. (2d) 162 E/C/24/02

2003 NBQB 454

IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF EDMUNDSTON B E T W E E N: TINA AGNEW, PLAINTIFF - and ANNETTE PAULA KNOWLTON and GORDON MCDOUGALL,

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DEFENDANTS

BEFORE:

Madam Justice Lucie A. LaVigne December 17th, 2003 December 19th, 2003

DATE OF HEARING: DATE OF DECISION: SOLICITORS:

Mister Paul E. Duffie, Q.C., appearing for the plaintiff Mister Hugh. J. Cameron, Esq., appearing for the defendant Annette Paula Knowlton No one appeared on behalf of the defendant Gordon McDougall LaVIGNE, J.: 1. The Plaintiff seeks an order pursuant to Rule 3.02 of the Rules of Court for an extension of time in which to serve the Defendants with a Notice of Action and Statement of Claim issued on her behalf on February 1st, 2002 relating to a motor vehicle accident that occurred on February 4th, 2000. The Defendant Annette Paula Knowlton opposes the motion and argues that she and her insurers would be prejudiced if this matter were allowed to proceed. The Defendant Gordon McDougall did not appear at the hearing of the motion but he advised this Court by letter that he took no position on the motion. BACKGROUND 2. On February 4th, 2000 the Plaintiff Tina Agnew was a passenger in a motor vehicle owned and driven by Gordon McDougall when the vehicle was struck by a vehicle operated by Annette Paula Knowlton. The Plaintiff claims that Mrs. Knowlton drove through a stop sign and collided with the passenger side of Mr. McDougalls vehicle, which was in a direction at ninety degrees from Mrs. Knowltons vehicle. The Defendant Knowlton claims that the Defendant McDougall is solely responsible for the accident as upon exiting a private road he entered into her lane of traffic, thus cutting off her right-of-

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way. The Plaintiff claims that due to the negligence of either or both Defendants, she has suffered personal injury and economic loss for which she claims special and general damages. THE EVIDENCE 3. The evidence before the Court consisted of affidavits from the following persons: the Plaintiff, the Plaintiffs solicitors, the Defendant Knowlton and Mr. Wayne Kearnan, Claims Manager with Security National Insurance Company, Mrs. Knowltons insurer. 4. In his affidavit, Mr. Kearnan states that based in part upon the information provided by the insured herself, the determination was made that Mrs. Knowlton was not liable for the accident. 5. Mr. Kearnan acknowledges that he was put on notice of the Plaintiffs claim on December 11, 2000. In paragraphs 7 and 8 of his affidavit he affirms that: 7. On December 11, 2000 I received a telephone call from a New Brunswick solicitor, Mr. Shaw, who advised me he was representing the Plaintiff who was traveling in the codefendants (McDougall) vehicle. I advised him at that time that we felt our client was not liable at all. He advised me he would discuss this with his client and would put his position in writing if he intended to pursue it with me. My file notes indicate that by February 9, 2001 I had still not heard from that solicitor and my file notes further indicate that I would hold the file open for sixty more days and then decide whether or not to close the file. 8. My file notes further indicate that on April 10, 2001, where I had received nothing further from the solicitor for the Plaintiff, I closed the file. 6. On February 1st, 2002, the Plaintiff's then solicitor, Diane DesChnes, filed a Notice of Action with Statement of Claim attached. However, the documents were never served on either of the Defendants. In paragraph 3 of her affidavit, the solicitor explains her delay as follows: It was my understanding that my legal assistant had arranged for the service of the Notice of Action and Statement of Claim. However, due

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to inadvertence the said Notice of Action and Statement of Claim was not served. 7. In December 2002 and early January 2003, Mrs. DesChnes had conversations with Mr. Kearnan concerning the Plaintiffs claim. Mrs. DesChnes further deposes that in January 2003 she submitted to both Defendants insurance companies a claim for their consideration along with medical evidence. Mr. Kearnan denies receiving a claim in any form or from anyone. It is sometime in January 2003 that Mrs. DesChnes was advised by Mr. Kearnan that the Notice of Action had not been served. 8. On April 5, 2003, Mr. Kearnan writes as follows to Mrs. DesChnes: This letter is further to the conversations we had in December 2002 and early January of this year. For your information, I enclose a copy of a letter I have sent to Wawanesa in response to their correspondence of January 20, 2003. If you are still intending to pursue this matter, please provide us with the Order extending service as well as the Affidavit of Service verifying that our client has been served. 9. In the letter sent to Wawanesa, the Defendant McDougalls insurer, copy of which was forwarded to Mrs. DesChnes, we find the following paragraphs: ... Firstly, Mr. McDougall is named as a Defendant in the Statement of Claim. If the Plaintiff pleads there is liability against Mr. McDougall, it is not our obligation to defend this matter on his behalf. Secondly, our investigation indicates that there is a dispute in liability. Furthermore, our investigation indicates liability maybe be assessed solely against your client. As you are aware, the Statement of Claim was filed over a year ago. As of this date my client has not been served with the Statement of Claim. My understanding is that if the Statement of Claim is not served within six months of the

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date it was filed, an Order must be obtained from the Court to extend the service. We have yet to receive an Order extending service. Please advise if your client has been served or if you have received the Order extending service. I have discussed this situation with Mrs. DesChenes and I have advised her that if our client is served we will defend the Action. Furthermore, I have advised her that we will instruct our counsel to plead the Statute of Limitation bars her Action. ... 10. Mr. Kearnan asserts in paragraphs 12 and 13 of his affidavit that: 12. When I received no response to my letter to Diane DesChnes of April 5, 2003 (Exhibit "A") and no further communication from Wawanesa Insurance after July 4, 2003 I concluded, finally, that the matter was at an end. 13. The next indication of any activity in this file was when we were in receipt of service of the Notice of Motion and Affidavit in this matter on October 28, 2003. 11. And finally in paragraphs 14 and 15 he adds: 14. As the file had been dormant for some time, I believed that this matter would not proceed. As yet, I have not been able to locate all the file notes and materials in the matter since I had previously closed the file.

15. Given the time period that passed from the time I closed the file and the fact that I have been unable to locate all related file materials to date I believe that the position of the insured and our firm, her insurers, would be prejudiced if this matter is allowed to continue. 12. In paragraph 7 of her affidavit Mrs. Knowlton declares that:

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7. As a result of my own investigations with respect to this matter I accumulated many documents pertaining to the accident as follows: a. a written statement from the paramedic who was at the scene; b. a statement from a witness stating that he had driven the Plaintiff, Tina Agnew, home after she had driven her car off the road and into a ditch approximately one week before the accident that I was involved in with her on February 4, 2000; c. pictures of the scene and the car's involved;

d. I obtained a copy of the Town Map that clearly showed that the direction that Mr. McDougall was travelling from was not a street;

e.

I was in contact with the owner of the residential property from which Mr. McDougall was travelling and acquired a written statement from him pertaining to the right of way in and out of the residential area; I addressed, in a written letter to the Village of Plaster Rock, the need for proper signage and labelled street signs for that area; I wrote to a government department which I believe was the Department of Public Safety with respect to this matter.

f.

g.

13. She affirms that she destroyed all of these documents in the spring of 2003 as she assumed that the file had been closed since the time to proceed

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with the case had expired and she had not heard from anyone since approximately March 29, 2001. 14. Mrs. Knowlton deposes in paragraph 11 that: 11. I truly believe that many of the documents I created with respect to my defence in this matter, which I believed were safe to destroy in the spring of 2003, would be invaluable in my defence of this matter, and, without them, my ability to defend this matter is severely prejudiced. ANALYSIS AND DECISION 15. Rule 16.08(1) of the Rules of Court states: (1) Where an action is commenced by issuing a Notice of Action with Statement of Claim Attached, it shall be served within 6 months thereafter. 16. 3.02 Rule 3.02 states: (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these Rules.

(2) A motion for extension of time may be made either before or after the expiration of the time prescribed.

... 17. Rule 2.02 clearly stipulates that failure to comply with the Rules must be treated as an "irregularity", which can be remedied to secure the just determination of the matters in dispute.

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18. Rule 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. 19. The main concern in cases such as this is to see that justice is done and to make certain that any extension of time for service does not prejudice or work injustice to the parties involved. 20. I agree with counsel for the Defendant Knowlton that the onus is on the party seeking to have the Court exercise its discretion to extend the time, to satisfy the Court that in the circumstances of the particular case, the interest of justice calls for such an action. 21. The test to be applied when considering such an application is that of the substantial injustice test which was put forth by Mr. Justice Ayles in the Court of Appeal decision of Bridges v. Daeres reflex, (1986), 64 N.B.R. (2d) 412, which test was also accepted as being correct by our Court of appeal in the more recent case of Hill v. Mattatall, [1996] N.B.J. No. 193. 22. In Hill, supra, Chief Justice Hoyt as he then was, writing for the majority stated as follows at paragraphs 8, 9, 10 and 12: 8 A review of the New Brunswick cases reveals that New Brunswick courts do not take as strict a view of time limits as do, for example, the Ontario courts. In Ontario, there is a presumption of prejudice in favour of the responding party that the late party must overcome. In New Brunswick, such prejudice is taken into account, but is not the determinative factor. 9 In Bridges v. Daeres reflex, (1987), 83 N.B.R. (2d) 331, this Court upheld a judge's refusal to remedy a ten year delay. Ayles, J.A. formulated the test to be applied when considering such applications. He said at p. 337: The test as set out above is a double one: the failure to renew must do an obvious and substantial injustice to Mrs. Bridges while at the same time its renewal must

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not work any substantial injustice to Mr. Daeres as to his defence. ... 10 As Jones, J. noted in Spencer v. King and Mockler, Allen & Dixon reflex, (1984), 59 N.B.R. (2d) 162, the use of the word "just" in Rule 3.02 renders the remarks of Culliton, C.J. in Simpson v. Saskatchewan Government Insurance Office (1967), 65 D.L.R. (2d) 324 relevant to Rule 3.02 applications. Culliton, C.J. said at p. 333: In an application to renew a writ of summons the basic question which faces the Court is, what is necessary to see that justice is done? That question must be answered after a careful study and review of all the circumstances. If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. This should be done even if the only reason for non-service is the negligence, inattention or inaction of the plaintiff's solicitors and notwithstanding that a limitation defence may have accrued if a new writ was to be issued. If the non-service of the writ was due to the personal actions of the plaintiff, that, of course, would be a fact to be considered by the Court. Each case should be considered in the light of its own peculiar circumstances and the Court, in the exercise of its judicial discretion, should be determined to see that justice is done. In Canada v. Pelletier reflex, (1984), 58 N.B.R. (2d) 184, Daigle, J., as he then was, considering a three year delay, applied Simpson and allowed the application. Landry, J. in Jardine v. Kent General Insurance Corp. et al. reflex, (1988), 90 N.B.R. (2d) 213,

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applied a "severe prejudice" test in declining to remedy a four year delay. I can see no difference between "severe prejudice" and "substantial injustice". More recently, McLellan, J. in Gifford v. Phalen Estate, [1995] N.B.J. No. 586 (QL), using the "substantial injustice" test, allowed an application to extend the time to serve a Notice of Action and Statement of Claim after a five year delay from the issuance of the Notice of Action. ... 12 In my view, the Judge's use of the "substantial injustice" test articulated in Bridges was correct. Nor am I able to conclude that he was wrong in determining that the appellants would suffer no substantial injustice. The length of delay, of course, is a factor to consider, but not the only factor. Undoubtedly, the longer the delay, the more prominent it becomes in assessing the various factors that could cause a substantial injustice. A solicitor's delay, unless the delay has an oblique motive, for example, to gain some tactical advantage, is a neutral factor in assessing the injustice each party would suffer. 23. A motion for leave to appeal Hill was dismissed by the Supreme Court of Canada on January 9th, 1997. (see reflex, (1997), 183 N.B.R. (2d) 320). 24. I return to the facts of this case. The insurance company was put on notice as early as December 11, 2000. They were aware that the Plaintiff had retained legal counsel to pursue the claim. They did make an investigation and an informed decision was made to close their file on April 10, 2001 after denial of liability. The two-year limitation period had not even expired by then.

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There is no onus on a plaintiff to do anything before the two years are up and he has a further 6 months to serve the documents. 25. This is not a case where the Defendants insurance companies were unable to obtain evidence or prevented from making an investigation in a timely manner. They were put on notice early on and they did have a chance to make an investigation. 26. There is no evidence of there being any witnesses to the accident other than the parties themselves. 27. The delay in this case is quite short when compared to some of the delays in the cases mentioned in the Hill, supra, and Savoie, infra, decisions. The Plaintiff had until to August 1st, 2002 to serve the documents. The motion for an extension of time was filed in October 2003, that is fifteen months later. 28. Furthermore, I conclude that sometime between December 2002 and January 2003, the Plaintiff put the Defendants on notice again and Mr. Kearnan knew or should have known at that time that a Notice of Action with a Statement of Claim had been properly filed and that the Plaintiff intended to continue her claim against Mrs. Knowlton. I conclude that at this time a reasonable person would have had reason to believe that a claim would be advanced against his insured. In the circumstances, Mr. Kearnan should have advised his insured Mrs. Knowlton. This would have prevented her from destroying her file in the spring of 2003. Mrs. Knowlton stated in her affidavit that she had not heard from anyone since March 29, 2001. 29. Mr. Kearnan chose to close his file again in July 2003. 30. Mrs. DesChnes was aware in January 2003 that she had failed to serve the documents in time. She did not provide any explanation for the 9-month delay in bringing this motion for an extension order. 31. I am satisfied on the evidence that the failure to comply with Rule 16.08(2) and the failure to proceed without delay to present a motion for an extension order is the result of laxity on the part of Mrs. DesChnes. Counsel for Mrs. Knowlton argued that the Plaintiff should have asked questions and made sure that her solicitor did the work. I cannot agree with this. As far as the Plaintiff was concerned, the action was filed on February 1, 2002. She had no way of knowing that the documents had not been served or that something was wrong with the proceedings. I find no misconduct on the part of the

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Plaintiff personally. Such delay by a solicitor as opposed to a delay by a party must be considered a neutral factor in assessing any prejudice or injustice. 32. I have reviewed the documents that Mrs. Knowlton has destroyed. Many of these, if they were admitted, would have little, if any, relevancy to the issue. There is no suggestion that the paramedic or the witness who drove Mrs. Agnew home or the owner of the residential property could not be found. Items mentioned from d. to g. would be used in argument, if at all, and there is no reason why copies of d, f. and g could not be obtained if necessary. 33. As for Mr. Kearnan, he has not destroyed his file. He states that he has been unable, to date, to locate all the file notes and materials. There is very little evidence of what sort of documents are missing or since when they are missing or why they are missing. Mr. Kearnan admitted that he originally closed his file in April 2001. If documents were destroyed at that time, the Plaintiff cannot be blamed for this, as it was not reasonable in the circumstances to close the file at that time. 34. The insured and her insurer should have taken steps to make sure that information relevant to its defense was maintained. 35. In Savoie V. Dumont, [2001] N.B.J. No. 171, Mr. Justice Glennie reviewed in great depth the jurisprudence concerning this subject matter and it would be of no use to repeat this exercise. In Savoie, the plaintiff had been injured in two motor vehicles accident. She settled the second accident. Eight years after the first accident, she moved for an extension of time to effect service. The defendant was not aware of the plaintiffs claim until they received notice of the motion. Justice Glennie dismissed the motion. The court considered that: the defendants insurer had not been put on notice, the defendants had not been able to conduct any investigation or independent medical evaluation, there were overlapping damages from two accidents, and the plaintiff had settled the second accident in complete disregard for the first accident. The Court found that these factors, taken cumulatively, caused substantial injustice to the defendants. 36. In paragraph 5, Mr. Justice Glennie acknowledges that in two other similar motions concerning the same solicitor the applications to extend time were allowed. He explains the difference between the cases as follows: 5. In Gifford and in Hill, the applications to extend time were allowed. It must be observed that in each of those cases, there existed two critical factors which are not present in the case at bar. In each of

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those cases, the respective plaintiff's had only been involved in one accident and in each of those cases the insurers of the defendants had been put on notice of the plaintiff's claim for damages for personal injuries. 37. Justice Glennie, throughout his decision, puts much emphasis on the fact that the defendants in Savoie were never put on notice. 38. Here, the insurers were put on notice and they were able to carry out their investigation. There is no evidence of another motor vehicle accident where the Plaintiff would have suffered injuries. I refuse to consider the hearsay evidence contained in paragraph 7 b. of Mrs. Knowltons affidavit reproduced above as constituting such evidence. Furthermore, there is nothing to suggest that the medical evidence will be affected by the delay. 39. In Hill, supra, liability was not in issue. In the present case, liability is in issue; however, there was no mention of any witnesses to this accident other than the parties themselves, all of who are still available to testify. CONCLUSION AND DISPOSITION 40. In the present matter, the refusal to extend time for service will cause obvious and substantial injustice to the Plaintiff. The extension of time will likely cause some prejudice to the Defendants and their insurer. I do not however, think that it will cause substantial injustice to the Defendants or their insurers. 41. Each case must turn upon its own facts. The obligation of the Court is to see that justice is done. In my view, the facts of this case are sufficient to enable the Court to use the discretionary powers granted to it in Rule 2.02 and 3.02 in order to secure the just determination of the matters in dispute between the parties. 42. I hereby grant to the Plaintiff an extension of 60 days to serve the Defendants herein with the Notice of Action and Statement of Claim. 43. Although the Plaintiffs motion is granted, in the circumstances, the Defendant Knowlton is entitled to costs payable by the Plaintiff, which I fix in the amount of $1,000.00 inclusive of disbursements.

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DATED this 19th day of December 2003, in Edmundston, New Brunswick. __________________________________ LUCIE A. LaVIGNE Judge of the Court of Queens Bench New Brunswick of

9. Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.) Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.) Print: PDF Format Date: 2000_02_09 Docket: C32602 Parallel citations: 46 O.R. (3d) 780 129 O.A.C. 129 URL: http://www.canlii.org/en/on/onca/doc/2000/2000canlii3904/2000canlii3 904.html Noteup: Search for decisions citing this decision Reflex Record (related decisions, legislation cited and decisions cited) Legislation cited (available on CanLII) * Courts of Justice Act, R.S.O., 1990, c. C.43 105 * Highway Traffic Act, R.S.O., 1990, c. H.8 DATE: 20000209 DOCKET: C32602

COURT OF APPEAL FOR ONTARIO CATZMAN, LASKIN and ROSENBERG JJ.A. BETWEEN: )

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) Janet E. Gross CATHY CHIARELLI and FRANCESCO CHIARELLI Appellants _ and _ ) ) John B. Graham ) for the respondent ELISABETH WEINS Respondent ) ) Heard: January 14, 2000 On appeal from the judgment of the Divisional Court (OLeary J. (dissenting), Rosenberg and Ferguson JJ.) dated April 21, 1999 LASKIN J.A.: [1] The general issue on this appeal is whether the majority of the Divisional Court erred in holding that the motions judge had improperly exercised his discretion in extending the time for service of the statement of claim. In my view, the Divisional Court did err. I would therefore allow the appeal and restore the order of the motions judge. ) ) ) for the appellants

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A. Background [2] The main facts giving rise to the motion were not disputed. The plaintiff Cathy Chiarelli was injured in a car accident in a parking lot on October 26, 1988. She suffered a very severe whiplash injury. Only the parties witnessed the accident. A police report was prepared but there were no independent witnesses. The day after the accident occurred, it was reported to the defendants insurer State Farm. State Farms claims adjuster promptly took a statement from Ms. Chiarelli and from the defendant, had the plaintiffs car appraised, and obtained a copy of the police report. From Ms. Chiarellis statement, State Farm learned that she complained of pain in her neck, shoulders and back. [3] The plaintiffs retained a lawyer soon after the accident and by the end of Novemer 1988 he had put State Farm on notice of a claim. Meanwhile, Ms. Chiarellis condition deteriorated. She experienced numbness in her right arm and was diagnosed with disc damage in her lower back. Between December 1988 and November 1992 the plaintiffs lawyer forwarded medical information including 12 medical reports to State Farm as the information became available. State Farm paid for the medical reports and

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never once indicated to the plaintiffs lawyer that it was disputing liability. Medical reports in 1988 and 1989, which State Farm received, showed that Ms. Chiarellis injury was much more serious than had originally been thought. She was diagnosed as having a severe long term back injury with permanent partial disability. [4] The statement of claim was issued on October 24, 1990 within the two_year limitation period under the Highway Traffic Act.1 The dollar amount of the claim was well within the defendants policy limits. The plaintiffs lawyer gave the claim to the sheriff to serve on the defendant. Until this time the lawyers handling of the claim on behalf of his clients was commendable. [5] Unfortunately the sheriff could not locate the defendant to serve her. She lived in the country, outside Niagara_on_the_ Lake, and the address shown on the police report and at the Ministry of Transportation did not include the number of the street on which she lived. The plaintiffs lawyer sent a copy of the statement of claim to State Farm and asked if it would accept service. State Farm refused to do so, and indeed did not even offer to seek instructions from its insured to accept service.

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[6] The six_month period for serving the statement of claim expired on April 24, 1991, without the defendant having been served and without the plaintiffs lawyer having moved to extend the time for service. In October 1991 State Farm wrote the plaintiffs lawyer to say that its insured had not been served and that it assumed the claim had been abandoned. The plaintiffs lawyer wrote back to say that he could not find the insured and that he would seek an order to extend the time for service unless State Farm admitted service. State Farm would not admit service and the lawyer never moved to extend the time. In his affidavit, which was uncontradicted, the lawyer, a sole practitioner, said that he succumbed to the pressure of work, that he became embarrassed and depressed by his negligence, and that instead of bringing a motion he froze. State Farm closed its file in February 1994. [7] The plaintiffs, unhappy with the delay, retained a new lawyer in the fall of 1996. The file was transferred in February 1997. The motion was launched in May 1997 and was served on the defendant (at her corrected address) in August 1997. B. The decision of the motions judge to extend the time for service of the statement of claim

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[8] The motions judge, Taliano J. gave lengthy reasons for exercising his discretion to extend the time for service of the statement of claim. I am not persuaded that the motions judge made any reviewable error in the exercise of that discretion, despite the long delay from the date the time for service expired. [9] After referring to the applicable rules of civil procedure rules 1.04, 2.01, 3.02 and 14.08(1)2 the motions judge correctly stated that, on a motion to extend the time for service, the court should be concerned mainly with the rights of litigants, not with the conduct of counsel. He then took into account that the defendant had notice of the claim, that the defendants address was inadequate for service, that the plaintiffs moved reasonably promptly once they learned the claim had expired, and that until then they had no knowledge of their lawyers negligence. [10] Finally, the motions judge turned to the issue of prejudice, the key issue on the motion. He recognized that the court should not extend the time for service if to do so would prejudice the defendant, and that the plaintiffs bore the onus to show that the

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defendant would not be prejudiced by an extension. The motions judge canvassed in detail all possible areas of prejudice caused by the delay, but one. He considered the unavailability of witnesses, the eroding memory of the available witnesses, the failure of the defence to conduct neighbourhood interviews or surveillance on Ms. Chiarelli, the failure of the defence to interview the police officer, the lost documents of the appraiser, the difficulties in dealing with Ms. Chiarellis pre_ existing injury, the missing records and documents, the allegedly inaccurate productions, and the fact of the inordinate delay. He made findings on each of these areas of possible prejudice and concluded generally that the defendant would not be prejudiced by the admittedly very long delay. [11] The one area not addressed by the motions judge was the possible prejudice arising from a delayed defence medical. State Farm had requested an independent medical assessment of Ms. Chiarelli in July 1989, not, however, to be considered its defence medical. The plaintiffs lawyer refused saying there was not yet enough medical information. State Farm never renewed its request. Still, the defence was entitled to a defence medical and is still entitled to one if the action proceeds.3 However, I

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consider any prejudice caused by a delayed defence medical to be slight. Because the defence typically is only entitled to one medical examination of the plaintiff, usually that examination takes place shortly before the trial when the most up_to_date medical information has been obtained. Thus, even if the statement of claim had been served on time, the defence medical would likely still have taken place several years after the accident. The added years caused by the delay in service will not appreciably affect the defences position, especially considering the voluminous medical information on Ms. Chiarelli now available to State Farm. Therefore, in my view, a delayed defence medical provides no basis for interfering with the motions judges order. C. The decision of the Divisional Court [12] On appeal the Divisional Court divided. OLeary J., dissenting, would have dismissed the appeal largely for the reasons of Taliano J. supplemented by his own brief reasons. Rosenberg and Ferguson JJ. allowed the appeal. Ferguson J., who wrote the majority reasons, discussed at great length the caselaw under both the current rules for extending the time for service

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and under former Rule 8. In my view, although the wording of the former and current rules differs, the guiding principles remain the same. As Lacourcire J.A. said in Laurin v. Foldesi: 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.4 And, the plaintiff has the onus to prove that extending the time for service will not prejudice the defence. [13] Taliano J. applied these guiding principles in extending the time for service. Nonetheless, the majority of the Divisional Court concluded that Taliano J. committed four errors in principle. Having so concluded, the majority made its own determination of prejudice, and decided that the defence would be prejudiced by extending the time for service. In my view, Taliano J. did not commit any error in principle and thus the Divisional Court should not have made its own determination of prejudice. I will briefly address the four errors found by the Divisional Court.

(i) The Divisional Court found that the motions judge had

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reversed the burden of proof on prejudice by requiring the defence to show that it would be prejudiced by the delay in service. In support of this finding Ferguson J. referred to several passages from the motions judges reasons, in which the motions judge noted the defences inability to specify, for example, what witnesses might not be available to testify or what doctors could no longer be found. I do not consider that these passages reflect any shift of the burden of proof on prejudice. [14] I make three observations in response to the Divisional Courts finding. First, the passages from the reasons of the motions judge have to be considered in their context. The motions judge was obviously unimpressed, as am I, with the defences assertion of prejudice. The only allegation of prejudice in the material filed by the defence on the motion is the following very general statement in the affidavit of State Farms claims adjuster:

It is my belief that the defence of this action has been seriously prejudiced due to the passage of time and the strong possibility that pre_accident and post_accident records and witnesses may not be available

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or that their recollections may not be accurate.

Although the onus remains on the plaintiffs to show that the defendant will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records are still available or that their unavailability will not cause prejudice. It seems to me that if the defence is seriously claiming that it will be prejudiced by an extension it has at least an evidentiary obligation to provide some details. The defence did not do that in this case. [15] Second, the defence cannot create prejudice by its failure to do something that it reasonably could have or ought to have done. For example, the defence cannot complain about the lost opportunity to interview the police officer or to conduct surveillance on Ms. Chiarelli or to obtain the no_fault insurers file. If, as the defence now maintains, it is contesting liability, then it should have interviewed the police officer at

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the time and cannot blame its failure to do so on the plaintiffs delay. Similarly, the defence knew in 1989 that Ms. Chiarellis injury was serious and if surveillance on her was appropriate, that surveillance should have been undertaken at the time. The defence also had all the particulars of the file maintained by Ms. Chiarellis no_fault insurer and could have requested it at any time. [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. In this case the defence complains that the police officers notes have been destroyed. However, they were destroyed within two years of the accident under a local police policy. Thus, the notes would have been unavailable to the defence even if the statement of claim had been served on time.

(ii) The Divisional Court found that the motions judge erred by focusing on what the defendants insurer could have done to preserve evidence rather than on what prejudice had probably been caused by the delay. Ferguson J. held that the insurers

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investigation, including, for example, its decision not to conduct surveillance, was reasonable. I see no merit in this criticism of the motions judges reasons by the Divisional Court. Even if the insurers decision not to conduct surveillance was reasonable, as the motions judge pointed out, the insurer could have undertaken surveillance for several years after the accident. Its failure to do so when it knew Ms. Chiarellis injury was serious was not caused by any delay in serving the statement of claim. (iii) The Divisional Court found that the plaintiffs lawyer deliberately did not move to extend the time for service after he realized the time had expired, and that the motions judge erred by giving no weight to this fact. Moreover, Ferguson J. relied heavily on the lawyers deliberate delay when considering whether an extension should be granted. In my view, the Divisional Courts finding is unwarranted. There is no evidence to support a finding that the lawyer acted deliberately. His evidence, unchallenged by the defence, was simply that he Sfroze.

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(iv) Finally, the Divisional Court found that the motions judge erred in not considering the factors relating to the policy of repose. Although Ferguson J. stated that the court should not set a fixed time limit beyond which an extension should be refused, he nonetheless was inclined to think it would not be appropriate to grant an extension if after the deadline for service expires, there is absolute silence for a period longer than the limitation period. The limitation period in this case is two years. Therefore, if Ferguson J.s suggestion were followed the plaintiffs could not obtain an extension after April 1993. However, I see no rational basis for refusing to extend the time for service simply because the delay is longer than the applicable limitation period. [17] The court should not fix in advance rules or guidelines when an extension should be refused. Each case should be decided on its facts, focusing as the motions judge did in this case, on whether the defence is prejudiced by the delay. Undoubtedly the delay in this case over six years from the expiry date for serving the claim was significant, much longer than in most if not all of the decided cases where an extension has been granted.

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However, the motions judge recognized this delay and still found no prejudice. As I have already said, I am not persuaded that he erred in making that finding. Thus, the motions judge did not err in principle by granting an extension though the length of the delay exceeded the two year limitation period under the Highway Traffic Act. [18] I therefore conclude that the majority of the Divisional Court was wrong in holding that Taliano J. erred in principle in exercising his discretion to extend the time for service. I add one final observation. In refusing to grant an extension, Ferguson J. found it very significant that the defendant herself never knew that a statement of claim had been issued. I would give no weight to this consideration. State Farm took a statement from its insured and then negotiated on her behalf with the plantiffs lawyer for nearly three years. The plaintiffs cannot be held accountable if, for tactical reasons, State Farm chose not to tell its own insured that an action had been started, and refused to accept service of the statement of claim for her or even seek instructions from her to accept service. D. Conclusion

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[19] I would allow the appeal, set aside the order of the Divisional Court and in its place dismiss the appeal from the order of Taliano J. The plaintiffs are entitled to their costs of the appeal in the Divisional Court and in this court, including the costs of the motion for leave to appeal. Released: February 9, 2000 _______________________________ 1 R.S.O. 1990, c. H.8. 2 R.R.O. 1990, Reg. 194. 3 Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 105. 4 (1979), 23 O.R. (2d) 331.

10. Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII)

Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII) Ellis v. Callahan & Camp Abegweit, 2006 PESCTD 52 (CanLII) Print: PDF Format Date: 2006_12_18 Docket: S2_GS_4646 URL: http://www.canlii.org/en/pe/pesctd/doc/2006/2006pesctd52/2006pesctd 52.html Noteup: Search for decisions citing this decision

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Reflex Record (related decisions, legislation cited and decisions cited) Legislation cited (available on CanLII) * Health and Community Services Act, R.S.P.E.I., 1988, c. H_1.1 * Statute of Limitations, R.S.P.E.I., 1988, c. S_7 5 Decisions cited * Ledo v. Atchison, (reflex_logo) reflex 9 O.R. (3d) 126 * Murphy v. Welsh; Stoddard v. Watson, 1993 CanLII 59 (S.C.C.) [1993] 2 S.C.R. 1069 14 O.R. (3d) 799 106 D.L.R. (4th) 404 65 O.A.C. 103 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT _ TRIAL DIVISION Citation: Ellis v Callahan & Camp Abegweit 2006 PESCTD 52 20061218 Docket: S2_GS_4646 Registry: Summerside BETWEEN: JORDAN ELLIS, a minor by his litigation guardians Paul Ellis and Penny Ellis (PLAINTIFFS/RESPONDENTS) AND: DR. PETER CALLAHAN (DEFENDANT/MOVING PARTY) AND: CAMP ABEGWEIT ORGANIZATION & DR. JOACHIM KAPALANGA (DEFENDANTS/RESPONDENT) Date:

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BEFORE: The Honourable Justice Benjamin B. Taylor Appearances: James Gormley Moving Party Solicitor for Defendant and Solicitor for

Dr. Peter Callahan and Dr. Joachim Kapalanga Shannon Farrell Plaintiffs (Respondents) Place and Date of Hearing Edward Island August 31, 2006 BETWEEN: JORDAN ELLIS, a minor by his litigation guardians Paul Ellis and Penny Ellis (PLAINTIFFS/RESPONDENTS) AND: DR. PETER CALLAHAN (DEFENDANT/MOVING PARTY) AND: CAMP ABEGWEIT ORGANIZATION & DR. JOACHIM KAPALANGA (DEFENDANTS/RESPONDENT) Prince Edward Island Supreme Court _ Trial Division Before: Taylor J. [In Chambers]

Charlottetown, Prince

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Place and Date of Hearing: August 31, 2006 Place and Date of Decision: December 18, 2006 [1 3 Pages] Practice _ Commencement of proceedings _ Service _ Extension of time for service of statement of claim _ Statement of claim issued within limitation period but not served before time for service expired _ Prejudice _ Infant plaintiff _ Privileged position of plaintiff under legal disability. Cases Referred to: Chiarelli v. Wiens, [2000] O.J. No. 296 (C.A.); Anness v. Alvaro (1992) 14 C.P.C. (3d) 222 (Ont. Gen. Div.); Laurin v Foldes (1979), 23 O.R. 2d 321 (C.A.); Ledo v. Atchison reflex, (1992), 9 O.R. (3d) 126 (Ont. Master);Brosseau v. Childrens Aid Society (Sudbury) (1986), 7 CPC (2d) 312 (Ont. H.C.J.); Murphy v Welsh 1993 CanLII 59 (S.C.C.), (1993), 106 DLR (4th) 404 (S.C.C.). Statutes Referred to: Medical Act, R.S.P.E.I. 1988, Cap. M._5 , s. 49; Statute of Limitations, R.S.P.E.I. 1988, Cap. S_7, s. 5. Rules Referred to: Prince Edward Island Rules of Civil Procedure, Rule 1.04(1), 2.01 (1), 3.02 and 14.08(1). James Gormley, solicitor for defendant and moving party, Dr. Peter Callahan and Dr. Joachim Kapalanga Shannon Farrell, solicitor for plaintiffs (respondents) Taylor J.: INTRODUCTION [1] This decision follows the hearing of two motions: a) a motion by the defendant Dr. Peter Callahan for an order setting aside service of the statement of claim upon him, and an order dismissing the plaintiffs claim against Dr. Callahan for delay pursuant to Rule 24.01 (a); and b) a motion by the plaintiff Jordan Ellis for an order extending the time for service of the statement of claim on Dr. Callahan and an order validating the August 8, 2005 service on Dr. Callahan pursuant to Rule 16.08. For the reasons set out below, the Defendant Callahans motion is dismissed and the plaintiff Ellis motion is granted. FACTS

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[2]

By statement of claim issued August 22, 2003 Jordan Ellis sued Camp

Abegweit Organization, Dr. Peter Callaghan [sic], Dr. Joachim Kapalanga, Provincial Health Services Authority and Kings Health Region. [3] Jordan Ellis is a minor born January 4, 1990 and the claim is brought on his behalf by his litigation guardians, his parents Paul Ellis and Penny Ellis. The claim asserts Jordan Ellis suffered injuries between August 1 6 _ 23, 2002 as a result of being served bad hamburger at Camp Abegweit and as a further result of negligent medical treatment by Dr. Callaghan [sic] at Souris Hospital on August 24, 2002 and Dr. Kapalanga at Prince County Hospital, from August 25, 2002 to August 27, 2002. In fact, it was Dr. Peter Callahan, not Callaghan, who was working at Souris Hospital on August 24, 2002. [4] in Dr. Callahan moved from Prince Edward Island to Newfoundland

December 2002. He returned to Souris, P.E.I. on August 18, 2003 to do a locum, short for locum tenens, a temporary position a doctor fills or holds while a permanent doctor is sought. On that day, he received a message asking him to contact Ms. Krista MacKay, the lawyer representing Jordan Ellis. He phoned her and in his affidavit dated March 29, 2006, describes the conversation: 5. The Plaintiffs lawyer asked me a number of questions relating to hamburger disease. In particular, she wanted to know how someone could contract hamburger disease and if it was only through raw meat. I assisted her to the best of my ability. 6. At no time did the Plaintiffs lawyer let me know that any sort of action was being contemplated against myself. [5] In his supplemental affidavit dated August 25, 2006, Dr. Callahan added the following:

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7. The lawyer mentioned that she was time pressured to gather information in relation to Jordan Ellis matter, as a one year limitation period was quickly approaching. 8. After she mentioned this, I specifically asked her if I was being contacted as an expert witness, or as a possible defendant. I do not recall that she gave me a definite answer. She simply re_iterated [sic] that she was attempting to gather information. 9. Despite my inquiry in this regard, however, and even though I was still in Prince Edward Island when the Statement of Claim was issued, Jordan Ellis lawyer did not contact me again to advise me that I had been named as a defendant. [6] The one_year limitation period mentioned in the telephone conversation was possibly the limitation period in the Health and Community Services Act, R.S.P.E.I. 1988, Cap. H_1.1, now repealed. As noted above, the statement of claim was issued on August 22, 2003, one year less two days from the day Jordan Ellis was taken to Souris Hospital for treatment. [7] On September 22, 2003, John Hennessey, Q.C. took over the plaintiffs case from the previous attorney. The statement of claim was not served on any of the defendants prior to February, 2004. By letter dated February 3, 2004, Mr. Hennessey forwarded the original statement of claim to the Queens County Sheriffs Office with instructions it be served on Dr. Peter Callaghan, whose address is given in the statement of claim as c/o Souris Hospital. Dr. Callahan was not served by the Sheriffs Office because he could not be; he had permanently relocated to Newfoundland, although he later returned briefly from July 18, 2004 to July 31, 2004. Mr. Hennessey was not aware Dr. Callahan had moved to Newfoundland and apparently was not told by the Sheriff. There is no evidence about whether the Sheriff made inquiries as to Dr. Callahans whereabouts. I do not know the circumstances under which the original statement of claim made its way back to Mr. Hennessey, or when that happened. A different copy of the statement of claim must have gone to the Prince County Sheriffs Office for service in early February 2004, because on February 10, 2004 Deputy Sheriff LeBlanc served defendant Dr. Joachim Kapalanga, and on February 11, 2004 Deputy Sheriff Broome served Camp Abegweit Organization. There is nothing in the court file to show the plaintiff ever served Provincial Health Services Authority or Kings Health Region; eventually the plaintiff discontinued against both these defendants.

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[8] On or shortly before February 3, 2004, Mr. Hennessey spoke to lawyer James Gormley. Mr. Gormley is usually retained in malpractice suits to represent P.E.I. doctors insured through the Canadian Medical Protection Association (CMPA). Mr. Hennessey told Mr. Gormley about the lawsuit against Kapalanga, Callahan and others. By letter dated February 3, 2004, Mr. Hennessey forwarded Mr. Gormley a copy of the statement of claim, confirming he was arranging to have it served on Drs. Kapalanga and Callaghan [sic]. [9] Nothing happened on the file for some time after February, 2004, but there are communications which must have occurred between lawyers which the parties have chosen not to put before the court. Specifically: 1) Dr. Kapalanga was served on February 10, 2004. As Mr. Hennessey expected, Dr. Kapalanga retained Mr. Gormley. Mr. Gormley did not file a statement of defence until January 14, 2005, almost a year later; and 2) Camp Abegweit Organization was served on February 11, 2004, but its lawyer Mr. Murphy did not file a notice of intent to defend until September 27, 2004, followed by a statement of defence and cross_claim dated March 23, 2005. Clearly, there must have been barristers agreements extending the time for filing a defence, else the plaintiff could have entered default judgment against these two defendants. [10] The statement of defence and cross_claim filed by Camp Abegweit cross_ claimed against Dr. Callaghan [sic], Dr. Kapalanga, Provincial Health Services Authority, and Kings Health Region. Abegweits attorney Mr. Murphy served the statement of defence and cross_claim, together with a copy of the statement of claim, on all the other defendants except Dr. Callahan on April 21_22, 2005. There is nothing in the court file to show Dr. Callahan was served with the cross_claim. Provincial Health Services Authority and Kings Health Region

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retained lawyer Roger Langille to defend against the cross_claim. According to Dr. Callahans affidavit dated March 29, 2006, on May 12, 2006 Mr. Langille sent Dr. Callahan a copy of the defence Mr. Langille had prepared for Provincial Health Services Authority and Kings Health Region, together with a copy of the statement of claim. At paragraph 11 of his March 29, 2006 affidavit Dr. Callahan says May 12, 2005 was the first notice I received that any sort of claim had been issued against me. Dr. Callahan says he then contacted Mr. Gormley and retained him on May 22, 2005. [11] 5. In his affidavit dated June 26, 2006, Mr. Hennessey states: ...it was not until I did receive a letter dated May 9, 2005,

from Henry Murphy, solicitor for the defendant Camp Abegweit Organization, indicating that Dr. Peter Callahan had not yet been served, did it come home to me, and that Dr. Peter Callahan had moved his practice to Corner Brook, Newfoundland. ... ... 8. That at the time that I became the solicitor of record for the

plaintiffs, Dr. Peter Callahan had, unbeknownst to me, already moved from Prince Edward Island. 9. That I did verily believe that Dr. Peter Callahan had remained living on Prince Edward Island, at the address to which the Statement of Claim was addressed. 10. That I was unable to locate Dr. Peter Callahan during the period between May 9, 2005, the day I received the aforementioned letter from Henry Murphy, and the time that Dr. Peter Callahan was served with the Statement of Claim. When I did discover that he no longer lived on Prince Edward Island, Mr. James Gormley suggested that I make contact with the Medical Society of Prince Edward Island to determine Dr. Peter Callahans whereabouts. 11. That I do verily believe that Dr. Peter Callahan had knowledge of the claim prior to the expiry of the time for service of the Statement of Claim. Dr. Callahans solicitor, James Gormley, was made aware of the claim in early February, 2004.

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12. That I do verily believe that Dr. Peter Callahan has not suffered any prejudice in his ability to defend the claim as a result of the delay in the service of the Statement of Claim, as he had reasonable notice that the claim was to be commenced. As such, I verily believe that Dr. Peter Callahan could have attended to matters of concern, particularly an independent medical examination more contemporaneous with the injuries, prior to this point in time. [12] Ms. Shannon Farrell of the same firm as Mr. Hennessey took over the plaintiffs case by notice of change of solicitor dated June 30, 2005 and filed September 8, 2005. Dr. Callahan was served with the original statement of claim in Corner Brook, Newfoundland and Labrador on August 8, 2005. By letter dated September 28, 2005, Mr. Gormley wrote to Ms. Farrell to advise he acted on behalf of Dr. Callahan and to ask for a copy of the Souris Hospital records. The letter stated in part, ...we would ask that you please confirm that you will not enter default judgment until such times as we are able to obtain and review these materials. By letter dated March 23, 2006, Ms. Farrell wrote to Mr. Gormley demanding he file a statement of defence for Dr. Callahan within 20 days, whereupon Mr. Gormley brought the defendants present motion to set aside service and dismiss the action against Dr. Callahan. To this date, the defendant Callahan has not filed a statement of defence. [13] Dr. Callahan claims he has been prejudiced by the late service. In his March 29, 2006 affidavit, Dr. Callahan states: 16. Had the claim been brought to my attention at least in August,

2003, when the Plaintiffs lawyer contacted me, I could have retained legal counsel to assist in reviewing the Plaintiffs claims and condition at the time. 17. Had the claim been brought to my attention earlier, I could have arranged for an independent medical examination of the Plaintiff more contemporaneous with his alleged injuries. 18. 19. Obviously, it is now impossible to attend to these matters. Furthermore, as I have now moved to Corner Brook,

Newfoundland, efforts to review and prepare a defence to this matter are considerably hindered. Had I been notified of the Statement of Claim in a

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timely manner, I could have attended to these issues either while I was still living in Prince Edward Island, or during my returns to Prince Edward Island. 20. I do verily believe that the Plaintiffs untimely service of the Statement of Claim has caused considerable irreparable damage to my ability to properly defend myself in this matter. ISSUE [14] Although the defendant Callahan and the plaintiff bring different motions seeking different orders, there is really only one issue: Should this Court permit the late service of the statement of claim on the defendant Callahan? LAW [15] The Medical Act, R.S.P.E.I. 1988, Cap. M._5 provides at s. 49. 49. No action shall be brought against a member or associated member for negligence or malpractice by reason of professional services given or rendered by him but within a) two years from the date the alleged negligence occurred... [16] The Prince Edward Island Rules of Civil Procedure provide: 14.08(1) Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued. [17] The Rules also provide: General Principle 1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. EFFECT OF NON_COMPLIANCE 2.01 (1) irregularity and A failure to comply with these rules is an

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does not render a proceeding or a step, document or order in a proceeding a nullity, and the court, (a) may grant all necessary

amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; ... ... General Powers of Court 3.02 (1) Subject to subrule (3), the court may by order extend or

abridge any time prescribed by these rules or an order, on such terms as are just. (2) A motion for an order extending time may be

made before or after the expiration of the time prescribed. [18] The court has discretion to extend the time for service, before or after the expiration of the time prescribed. There is no limit to the number of extensions which may be ordered, or to the length of those extensions; it depends on the circumstances of the case. Those circumstances may include difficulty in finding the accused and considerations involved in putting together the plaintiffs case: the plaintiff may have named a defendant so as not to miss the limitation period, but may still be gathering or seeking evidence. As happened in this case, there may be times when the plaintiff is forced to file earlier than he might like because one defendant has a shorter limitation period than the others. In the present case, if the time for service is not extended, the plaintiffs claim against Dr. Callahan would be dismissed, and subject to considerations discussed below arising from the plaintiff being a party under disability, the plaintiff would be unable to recommence an action against Dr. Callahan because the limitation period has expired. [19] The legislative barrier to commencing an action is based on the principle it is unfair to sue a defendant after a certain passage of time following the event which is the subject of the suit. It is unfair because defendants are prejudiced by the passage of time: memories fade, evidence is lost,

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opportunities to develop evidence are lost, witnesses die or become unavailable, and people are entitled to finality. Having adopted this principle, the legislatures establish various limitation periods which are necessarily conventional, meaning arbitrary. Statutory limitation periods may not be extended except in certain specified circumstances; I will deal below with the exception for plaintiffs under a disability. [20] an The service period in Rule 14.08 is a procedural barrier to continuing

action already commenced. It is a much less stringent barrier than the limitation period and is based on the principle that once an action is commenced, the plaintiff should get on with it. The combination of the limitation period, service period and time spent on pre_trial procedure may obviously result in a case coming to trial long after the limitation period has expired. Our system presumes once parties are aware of an action, they will refresh their own memories as best they can and take steps to preserve or discover what other evidence may be available. [21] I have considered a number of factors in determining how to exercise my discretion on this motion: 1) 2) the reason for the delay; the dates of actual service, actual notice and constructive notice;

3) the length of the delay. In my opinion, the limitation period in this case is a key consideration in assessing the length of the delay; and 4) 1) most importantly, whether the defendant has been prejudiced. The Reason for Delay

[22] As in Laurin v. Foldes, (1979) 23 O.R. (2d) 321 (C.A.) at paragraph 6, I am satisfied what happened here was a slip in practice, at most an oversight, and not laxity. Plaintiffs counsel issued the claim in time, took steps to have Dr. Callahan served in time, the matter of service fell between the cracks somewhere between counsel and the sheriff, and in the midst of

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communications with counsel for Camp Abegweit and counsel for CM PA, the failure to serve one of the two CMPA insureds went unnoticed. 2) [23] The Dates of Actual Service, Actual Notice and Constructive Notice I begin by noting when Dr. Callahan was called by plaintiffs counsel in

August, 2003, Dr. Callahan was sufficiently concerned by the inquiries to ask if he was a defendant, and received no answer. I would not term this telephone call notice of any kind, but would observe most doctors would check the file at that time. [24] Dr. Callahan was actually served on August 8, 2005; he had actual notice of the claim on May 12, 2005 when he received a copy of it from Mr. Langille. I find however he had constructive notice of the claim sometime in February, 2004 when his insurer CMPA became aware of the claim and received a copy of it. [25] Mr. Gormley says he probably sent the statement of claim on to CMPA when he received it from Mr. Hennessey. If not, the CMPA certainly received the statement of claim from Mr. Gormley or Dr. Kapalanga later in the month after Dr. Kapalanga was served. As it turns out, Mr. Gormley now represents both Dr. Callahan and Dr. Kapalanga, something he could not do unless their defence interests were the same. I conclude CMPA has had the statement of claim since just after Dr. Kapalanga was served on February 10, 2004. [26] Mr. Gormley says he does not know whether the CMPA would be able to identify Dr. Peter Callahan among their thousands of insureds, based on the incorrect spelling. I expect any competent insurance company would conclude their insured Dr. Peter Callahan, working at Souris Hospital, Prince Edward Island, on August 24, 2002 was clearly the same person as Dr. Peter Callahan working at Souris Hospital, Prince Edward Island on August 24, 2002. I reject the suggestion CMPA might not have been able to identify its insured because of the spelling error in Callahans name. [27] Courts often treat notice to the insurer as equivalent to notice to the insured. This is because, for practical purposes in liability insurance claims, the insurer directs the case, holds the purse, and has the experience and access to resources in liability claims, while the insured is often relegated to the status of

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very interested witness. (See Chiarelli v. Wiens, [2000] O.J. No. 296 (C.A.); Anness v. Alvaro (1992) 14 C.P.C. (3d) 222 (Ont. Gen. Div.); Laurin v Foldes (1979), 23 O.R. 2d 321 (C.A.); Ledo v. Atchison reflex, (1992), 9 O.R. (3d) 126 (Ont. Master). [28] In this case, the defendants Callahans insurer knew of the claim and had a copy of the statement of claim weeks before the service period expired, and six months before the limitation period expired. CMPA saw fit not to advise its insured of the claim, thus running the risk Dr. Callahans case might be prejudiced. From my review of the law, courts take note when an insurer intentionally blinds itself or its insured to a lawsuit. This must surely apply doubly in this have your cake and eat it too situation, where CMPA can exercise every defendant right through its defence of Dr. Kapalanga while keeping its other insured in the dark for tactical reasons. I say tactical reasons because I cannot imagine any good reason not to tell ones insured unless CMPA hoped he could later claim prejudice. In Chiarelli, Laskin J.A. considered the decision on appeal of the lower Divisional Court and stated at paragraph 18: ...[the Divisional Appeal Court decision] found it "very significant" that the defendant herself never knew that a statement of claim had been issued. I would give no weight to this consideration. State Farm took a statement from its insured and then negotiated on her behalf with the plaintiffs' lawyer for nearly three years. The plaintiffs cannot be held accountable if, for tactical reasons, State Farm chose not to tell its own insured that an action had been started, and refused to accept service of the statement of claim for her or even seek instructions from her to accept service. 3) The Length of the Delay in Service

[29] Because the claim was filed in August, 2003, Dr. Callahan should have been served in February, 2004. He was not served until 11/2 years later, but I believe the dates of constructive notice and actual notice, together with the limitation period, should also be considered. Dr. Callahan had constructive notice in February, 2004. As well, since the claim was issued one year before the expiration of the limitation period for claims against physicians, I have considered how long the plaintiff could have waited before commencing his action.

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[30] It seems to me a matter of common sense to say if an action is commenced against a defendant long before the limitation period expires against that defendant and then not served within the six month service period, it will be much easier for the plaintiff to satisfy the onus of proving no prejudice. Put another way, it would be difficult to find prejudice for a claim issued early and then not served in six months when there could be no prejudice were the same claim issued at the end of the limitation period and then served within six months. [31] The claim against Dr. Callahan could have been issued two years after the event, i.e. in August, 2004, the plaintiff then could have served Dr. Callahan six months later, i.e. February, 2005, and had that happened, Dr. Callahan could not have moved to set aside service and dismiss the claim. Dr. Callahan had actual notice of the claim only two and one half months after expiration of the limitation period plus service period. 4) Has the Defendant Been Prejudiced?

[32] In Chiarelli, Laskin J.A. stated the law for extending the time for service under Ontario Rules, most of which rules are the same as ours. At paragraph 12: ...the guiding principles remain...[a]s Lacourciere J.A. said in Laurin v. Foldesi (1979), 23 O.R. (2d) 331, 96 D.L.R. (3d) 503 (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. And, the plaintiff has the onus to prove that extending the time for service will not prejudice the defence. [33] Although it is up to the plaintiff to prove no prejudice to the defendant from the extension, courts recognize the obvious problem of proving a negative and want to see the assertion of prejudice has some firm basis in reality. In Chiarelli, Laskin J.A. stated at paragraph 14: ...The motions judge was obviously unimpressed, as am I, with the defences assertions of prejudice. The only allegation of prejudice in the material filed by the defence on the motion is the following very general statement in the affidavit of State Farms claims adjuster:

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It is my believe that the defence of this action has been seriously prejudiced due to the passage of time and the strong possibility that pre_accident and post_accident records and witnesses may not be available or that their recollections may not be accurate. Although the onus remains on the plaintiffs to show that the defendant will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records are still available or that their unavailability will not cause prejudice. It seems to me that if the defence is seriously claiming that it will be prejudiced by an extension it has at least an evidentiary obligation to provide some details. The defence did not do that in this case. [34] Even if a defendant shows he suffered prejudice during the time which elapsed before he had notice of the claim, it must be shown the prejudice occurred after the expiration of the date when he should have been served. In Chiarelli, Laskin, J.A. stated at paragraph 16: [16] ....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. In this case the defence complains that the police officer's notes have been destroyed. However, they were destroyed within two years of the accident under a local police policy. Thus, the notes would have been unavailable to the defence even if the statement of claim had been served on time. [35] Like the judges in Chiarelli, I am unimpressed with the defendants assertions of prejudice. I will deal with the assertions in detail below, but will begin by noting : 1) Dr. Callahan has a good memory of the August 24, 2002 event, which he demonstrates in his affidavit; and 2) Dr. Callahans counsel requested the Souris Hospital records in September, 2005. I presume the records still exist and Dr. Callahans counsel received them, else there would be a clear basis for a claim of prejudice, and Dr. Callahans counsel would not have failed to raise it. [36] As to Dr. Callahans claims of prejudice I conclude as follows: 1) Dr. Callahan says had the claim been brought to his attention in August 2003, he could have retained legal counsel to assist in reviewing the

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Plaintiffs claims and condition at the time. This assertion is so vague as to be meaningless, and ignores the fact the claim was issued in August, 2003, but was not required to be served until February, 2004. 2) Dr. Callahan says since he has now moved to Newfoundland, his ability to review and prepare a defence are considerably hindered. Had he been notified earlier, he says he could have attended to these issues. Dr. Callahan moved to Newfoundland long before the limitation period expired and long before the statement of claim was issued (he moved in December, 2002). Since the claim was issued, Dr. Callahan was on PEI only once, in the summer of 2004, after CMPA had the statement of claim. Aside from being factually unsound, and lacking in specifics, the whole notion that a person in Newfoundland is handicapped in attending to the preliminary stages of defending a case in PEI is not realistic; 3) Dr. Callahan says if he had been aware of the claim earlier, he could have arranged an independent medical examination of the Plaintiff more contemporaneous with his alleged injuries. I do not accept this for the following reasons: a) As observed by Laskin J.A. in Chiarelli, most defendants save their IME for just before trial. In order to make this assertion, the defendant should have to show an air of reality to the notion he might have done an early IME; b) Had the plaintiff originally sued only Camp Abegweit and the two doctors, the plaintiff could have waited 21/2 years after the injury before serving the statement of claim. Dr. Callahan received a copy of the claim 2 years 81/2 months after. CMPA had the claim 11/2 years after the injury. There is no suggestion there was an important date for an IME falling between 21/2 years and 2 years 81/2 months post injury, or even between 11/2 years and 2 years 81/2 months. As well, Dr. Kapalanga, insured by CMPA and represented by Mr. Gormley had been served in February, 2004. If it was important an IME be done, it could have been done. [37] To summarize on this issue: 1) the plaintiff has a reasonable excuse for the delay in service;

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2) the defendant, through his insurer, had constructive notice of the claim within the limitation period and within the service period; 3) even disregarding the notice to CM PA, the defendant had actual notice of the claim two years eight and one half months after the injury occurred. The plaintiff could have waited two years before issuing the claim, then a further six months before serving it. Nothing prejudicial occurred after the expiration of any dates, whether limitation period, or date of issuance of claim or service period; 4) the plaintiff has satisfied the onus of proving the defendant will not be prejudiced by the extension. [38] For the reasons set out above, I find the plaintiff has shown extending the time for service will not prejudice Dr. Callahans defence. I am satisfied the extension will advance the just resolution of the dispute and accordingly I extend the time for service on Dr. Callahan. INFANT PLAINTIFF [39] Because the plaintiff is an infant, a person under disability, he is entitled to rights or advantages not extended to ordinary plaintiffs. As Costello, J. stated in Brosseau v. Childrens Aid Society (Sudbury) (1986), 7 CPC (2d) 312 (Ont. H .C.J.) ...infants having a bona fide cause of action are privileged suitors. Infant plaintiffs are forgiven missteps not forgiven an adult. This principle applies though the litigation guardians are related to the infant, and obviously applies if counsel for the litigation guardian errs, since if there is no error, there is no misstep to forgive. [40] In Brosseau, the degree of privilege afforded in infant plaintiff was sufficient to defeat a motion to dismiss an action commenced 121/2 years earlier. [41] The privileged position of an infant is such that notwithstanding the obvious prejudice to the defendant, according to the Statute of Limitations the limitation period against an infant runs from the time the infant reaches the age of majority, thus potentially extending the limitation period by eighteen years. Section 5 of the Statute of Limitations states: 5. If a person entitled to bring an action is under disability at the time the cause of action arises, he may bring the action within the time hereinbefore limited

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with respect to the action or at any time within two years after he first ceased to be under disability. [42] Both the courts and the legislature have decided an infants right to sue trumps obvious prejudice to the defendant. In Murphy v. Welsh 1993 CanLII 59 (S.C.C.), (1993), 106 DLR (4th) 404 (S.C.C.), Major J. stated at p. 412: The prejudice to plaintiffs under legal disability outweighs the benefits of providing a procedural defence to liability. [43] I have granted this motion for an order extending the time for service based on the test set out in Chiarelli, but if I had not, the privileged position of the plaintiff is such that when disability is added to the balance, I believe the law heavily favours the court exercising its discretion in favour of the plaintiff. CONCLUSION [44] Pursuant to Rule 3.02(2), I extend the time for service of the statement of claim on Dr. Callahan to August 8, 2005, and pursuant to Rule 16.08 I validate the service of the statement of claim made on Dr. Callahan on August 8, 2005. The defendant Callahans motion is dismissed in its entirety. [45] None of the parties have moved to correct the misspelling of Dr. Callahans name in the style of cause, but to save time and expense I order it be so corrected, and the style of cause on this decision reflects that correction. [46] The plaintiff will have his costs against the defendant Callahan on both the motion and countermotion on a partial indemnity basis. The plaintiff will file his proposed bill of costs and serve the defendant Callahan within ten days of the date of this judgment. The defendant Callahan will then have seven days to file his response if any, following which I will fix costs. J. December 18, 2006

11. Blanger v. Roussel, 2006 NBCA 2 (CanLII)

253

Blanger v. Roussel, 2006 NBCA 2 (CanLII) Print: PDF Format Date: 2005-11-30 Docket: 108/04/CA Parallel citations 295 N.B.R. (2d) 67 : http://www.canlii.org/en/nb/nbca/doc/2006/2006nbca2/2006nbca2.ht URL: ml Noteup: Search for decisions citing this decision Reflex Record (related decisions, legislation cited and decisions cited) Decisions cited

Ngambo and Ngambo v. Minister of Health and Community Services, 2002 NBCA 82 (CanLII) 255 N.B.R. (2d) 1 Roussel v. Blanger, 2004 NBQB 250 (CanLII) 275 N.B.R. (2d) 320

COURT OF APPEAL OF COUR DAPPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK

108/04/CA

RINO J. BLANGER

RINO J. BLANGER

254

APPELANT APPELLANT - and MARIO ROUSSEL and MICHELINE ROUSSEL - et MARIO ROUSSEL et MICHELINE ROUSSEL

INTIMS RESPONDENTS Blanger v. Roussel, 2006 NBCA 2 Blanger c. Roussel, 2006 NBCA 2 CORAM: Lhonorable juge en chef Drapeau Lhonorable juge Deschnes The Honourable Justice Deschnes Lhonorable juge Richard The Honourable Justice Richard Appeal from a decision of the Court of Queens Bench: June 18, 2004 Motion to dismiss heard: November 30, 2005 Appel dune dcision de la Cour du Banc de la Reine : Le 18 juin 2004 Motion en rejet entendue : Le 30 novembre 2005

CORAM: The Honourable Chief Justice Drapeau

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Judgment rendered: November 30, 2005 Reasons for judgment by: The Honourable Chief Justice Drapeau Concurred in by: The Honourable Justice Deschnes The Honourable Justice Richard Counsel at hearing:

Jugement rendu : Le 30 novembre 2005 Motifs de jugement : Lhonorable juge en chef Drapeau

Souscrivent aux motifs : Lhonorable juge Deschnes Lhonorable juge Richard Avocats laudience :

For the appellant: Rino J. Blanger, appeared in person

Pour lappelant : Rino J. Blanger a comparu en personne

For the respondents: Brigitte Volp THE COURT

Pour les intims : Brigitte Volp LA COUR

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The appeal is dismissed with costs.

Rejette lappel avec dpens.

English version of the judgment of the Court delivered by: DRAPEAU C.J.N.B. (Orally)

[1]

This is an application by the Registrar under Rule 62.24(1) of the Rules of Court for an order dismissing the appeal for non-compliance with Rule 62.15. Under that rule, the appellant must perfect the appeal within a specified timeframe. The subject matter of this appeal is a decision by a judge of the Court of Queens Bench who found in the respondents favour in a dispute over the use of their land as a right of way to the appellants campground. The decision is reported at 2004 NBQB 250 (CanLII), (2004), 275 N.B.R. (2d) 320. Rule 62.24(1) reads as follows: 62.24 Inobservation de la prsente rgle

[2]

[3]

62.24 Failure to Comply with Rule

(1) Where a party to an appeal or his solicitor is at fault in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may

(1) Lorsquune partie lappel ou que son avocat est responsable de linobservation de la prsente rgle, la Cour dappel peut, sur motion dune autre partie lappel ou la demande

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du registraire, (a) if the party failing to comply is the appellant, a) si la partie en dfaut est la partie appelante, (i) dismiss the appeal with costs, including the costs of the motion, or

(i) rejeter son appel avec dpens, y compris ceux de la motion, ou

(ii) direct the appellant to perfect the appeal within a specified time,

(ii) lui prescrire de mettre lappel en tat dans un dlai dtermin,

(b) set the appeal down for hearing, or

b) fixer une date pour laudition de lappel ou

c) rendre toute autre ordonnance (c) make such other order as may be quelle estime juste, notamment une just including an order for payment of ordonnance lui prescrivant le costs forthwith. paiement immdiat des dpens.

[4]

Dismissal of an appeal for failure to comply with Rule 62.15 is only appropriate where it is shown that the interests of justice would be ill-served by a less drastic measure: NouveauBrunswick (Ministre des Services familiaux et communautaires) v. A.N. et Y.N. 2002 NBCA 82 (CanLII), (2002), 255 N.B.R. (2d) 1 (C.A.).

258

[5]

The respondents filed three affidavits in support of the application. The evidence in these affidavits together with the evidence found in the Registrars affidavit establishes that the appellant did nothing to speak of, to perfect his appeal in accordance with the rules. Moreover, the respondents solicitor has put together a list of the many opportunities the appellant had, since the filing of the Notice of Appeal (almost 17 months ago), where he could and should have taken steps to perfect his appeal. Added to this total disregard for the rules are the following aggravating circumstances: (1) on September 15, 2005, the Court adjourned the hearing of the Registrars motion to todays date, to give the appellant time to perfect his appeal. He failed to do so and his explanations are not persuasive; (2) because he failed to comply with the judgment under appeal, the appellant was found guilty of contempt and a contempt order was made pursuant to Rule 76.06(1); and (3) the appellant now comes before this Court without having complied with the contempt order. Finally, the appellant has failed to show that there is sufficient merit to his appeal for the Court to overlook, in these circumstances, his failure to comply with the rules.

[6]

When ruling on an application under Rule 62.24(1), the Court must take into account the interests of every party. The Court may show leniency, particularly where the administration of justice will not be brought into disrepute should it adopt this approach. While it is true that 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, it should always bear in mind that another court has considered the issues and has outlined a solution that is designed to be final and in keeping with this ideal. In this case, the interests of justice would be ill served by an order that is less drastic than the dismissal of the appeal.

[7]

Under the circumstances, the Court allows the Registrars motion and orders the appellant to pay costs of $750.00 to the respondents Mario Roussel and Micheline Roussel.

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____________________________________ J. Ernest Drapeau, Juge en chef du NouveauBrunswick NOUS SOUSCRIVONS LAVIS : _________________________________ Alexandre Deschnes, j.c.a. __________________________________ J.C. Marc Richard, j.c.a. ______________________________________________________________

12. Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.)

Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.) Print: PDF Format Date: 2003-03-21 Docke 166/02/CA t: http://www.canlii.org/en/nb/nbca/doc/2003/2003canlii26208/2003canli URL: i26208.html Noteu Search for decisions citing this decision p: Reflex Record (related decisions, legislation cited and decisions cited)

260

Related decisions

Court of Appeal of New Brunswick Charlebois v. The City of Saint John, 2004 NBCA 49 (CanLII) - 200406-17

Charlebois c. Saint-Jean (ville de), 2003 CanLII 36767 (NB C.A.) 2003-05-28 Charlebois c. Saint John (City of), 2003 CanLII 45159 (NB C.A.) 2003-03-21 Charlebois and The City of Saint John v. Attorney General for the Province of New Brunswick, 2003 NBCA 8 (CanLII) - 2003-01-29 166/02/CA

IN THE COURT OF APPEAL OF NEW BRUNSWICK

Deschnes, J.A.

B E T W E E N:

MARIO CHARLEBOIS

) Mario Charlebois

) appeared in person (Applicant) APPELLANT )

) - and ) THE CITY OF SAINT JOHN ) John L. Nugent, Esq. )

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) for the Respondent


(Respondent) RESPONDENT )

) - and ) ATTORNEY GENERAL FOR NEW BRUNSWICK ) Gatan Migneault, Esq. ) and Chantal M. Cormier, Esqe. )

) for the Intervenor (Intervenor)


) - and )

INTERVENOR )

)
ASSOCIATION DES JURISTES ) Michel Doucet, Esq.

DEXPRESSION FRANAISE DU NOUVEAU-BRUNSWICK ) FRIEND OF THE COURT )

) for the Friend of the Court )

DATE OF HEARING: DATE OF DECISION: Order

March 14, 2003 March 21, 2003

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Motion by the City of Saint John, Respondent) [1] Time for service of the within motion is abridged, pursuant to Rule 3.02(1) of the Rules of Court, to allow the motion to be heard on March 14, 2003. [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. [3] LAssociation des juristes dexpression franaise du Nouveau-Brunswick, as Friend of the Court, shall file its submission within 20 days following the filing of the Respondents submission. [4] The motion is allowed, without costs.

-------------------------------ALEXANDRE DESCHNES, J.A. Court of Appeal of New Brunswick

13. Michaud v. Robertson, 2003 NBCA 79 (CanLII) Michaud v. Robertson, 2003 NBCA 79 (CanLII) Print: PDF Format Date: 2003-11-12 Docket: 127/03/CA Parallel citations 268 N.B.R. (2d) 50 : http://www.canlii.org/en/nb/nbca/doc/2003/2003nbca79/2003nbca79. URL: html

263

Noteup: Search for decisions citing this decision Reflex Record (related decisions, legislation cited and decisions cited) Related decisions

Court of Appeal of New Brunswick Michaud v. Robertson, 2004 CanLII 28806 (NB C.A.) - 2004-01-23

Michaud v. Robertson, 2003 NBCA 80 (CanLII) - 2003-11-12 COUR D'APPEL DU NOUVEAU-BRUNSWICK

COURT OF APPEAL OF NEW BRUNSWICK

127/03/CA CYRIL J. MICHAUD APPELLANT - and JOHN M. ROBERTSON, SCOTT PROCTOR, DANIEL J. NICHOLSON, ROBERTSON DAYE and PAR SYNDICATION GROUP INC. RESPONDENTS INTIMS Michaud v. Robertson, Proctor, Nicholson, Robertson Daye and Par Syndication Group, 2003 NBCA 79 Michaud c. Robertson, Proctor, Nicholson, Robertson Daye et Par Syndication Group, 2003 NBCA 79 CYRIL J. MICHAUD APPELANT - et JOHN M. ROBERTSON, SCOTT PROCTOR, DANIEL J. NICHOLSON, ROBERTSON DAYE et PAR SYNDICATION GROUP INC.

264

CORAM: The Hon. Chief Justice Drapeau The Honourable Justice Ryan The Honourable Justice Turnbull

CORAM: L'honorable juge en chef Drapeau L'honorable juge Ryan L'honorable juge Turnbull

Motion heard: November 12, 2003 Judgment rendered: November 12, 2003 Reasons for judgment by: The Hon. Chief Justice Drapeau Concurred in by: The Honourable Justice Ryan The Honourable Justice Turnbull Counsel at hearing:

Motion entendu : le 12 novembre 2003 Jugement rendu : le 12 novembre 2003 Motifs de jugement : L'honorable juge en chef Drapeau Souscrivent aux motifs : L'honorable juge Ryan Lhonorable juge Turnbull Avocats l'audience :

For the appellant: Cyril J. Michaud

Pour l'appelant : Cyril J. Michaud

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Appeared in person

Comparu en personne

For the respondents John M. Robertson, Scott Proctor, Daniel J. Nicholason, Robertson Daye: Danys Delaquis

Pour les intims : John M. Robertson, Scott Proctor, Daniel J. Nicholson, Robertson Daye : Danys Delaquis

For the respondent Par Syndication Group Inc.: Michael A. McWilliam

Pour l'intime Par Syndication Group Inc. : Michael A. McWilliam

The following are the reasons delivered by DRAPEAU, C.J.N.B. (Orally) This is a motion by the respondents, other than Par Syndication Group Inc., for an order dismissing the appeal pursuant to Rule 62.23(1)(c) of the Rules of Court on the ground that the appellant has unduly delayed preparation and perfection of his appeal. Rules 62.15, 62.23(1)(c) and 62.24(1) provide as follows: 62.15 Perfecting Appeals (1) Within 30 days after receiving notice from the court reporter that the evidence has been transcribed or, if no evidence is to be transcribed, within 30

266

days of the issue of the Notice of Appeal, the appellant shall serve on each party or send by prepaid mail or prepaid courier to a solicitor of record for each party (a) a copy of the appeal book, and (b) a copy of the Appellants Submission, and file with the Registrar (c) the notice of appeal and any supplementary notice of appeal with proof of service, (d) 5 copies of the appeal book described in Rule 62.13, (e) 5 copies of the Appellants Submission, and (f) a certificate that the documents referred to in clauses (a) and (b) have been served on each party or have been sent by prepaid mail or prepaid courier to the solicitor of record for each party. -2(2) When paragraph (1) is complied with, the appeal is perfected and the Registrar shall forthwith notify all parties to the appeal of the date when it was perfected and the month in which it is eligible to be heard. 62.23 Motion to Quash or Dismiss Appeal (1) A party to an appeal may apply by notice of motion to the Court of Appeal for an order quashing the notice of appeal or dismissing the appeal on the ground that

...

(c) the appellant has unduly delayed preparation and perfection of the appeal. 62.24 Failure to Comply with Rule

267

(1) Where a party to an appeal or his solicitor is at fault in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may (a) if the party failing to comply is the appellant, (i) dismiss the appeal with costs, including the costs of the motion, or time,

(ii) direct the appellant to perfect the appeal within a specified (b) set the appeal down for hearing, or

(c) make such other order as may be just including an order for payment of costs forthwith.

Dismissal of an appeal for failure to comply with Rule 62.15 is only appropriate "where it is shown that the interests of justice would be ill-served by a less drastic measure." See New Brunswick (Minister of Family and Community Services) v. A.N., [2002] N.B.J. No. 373 (C.A.) -3(Q.L.). The same approach is warranted when Rule 62.23(1)(c) is brought into play. In our view, the interests of justice would be better served by an order under Rule 62.24(1)(a)(ii) directing the appellant to perfect his appeal within a specified time. Disposition The motion for an order under Rule 62.23(1)(c) is dismissed. The appellant is directed to perfect his appeal on or before December 19, 2003, failing which it will stand dismissed. The unique circumstances of the present case warrant an order of costs against the moving parties in favour of the self-represented

268

appellant. We fix those costs at $750. There will be no order of costs in favor of Par Syndication Group Inc. _____________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK

WE CONCUR: _____________________________ PATRICK A.A. RYAN, J.A. _____________________________ WALLACE S. TURNBULL, J.A.

14. Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) Print: PDF Format Date: 1999_12_08 Docket: C31594 Parallel citations: 46 O.R. (3d) 330 181 D.L.R. (4th) 614 128 O.A.C. 2 URL: http://www.canlii.org/en/on/onca/doc/1999/1999canlii2052/1999canlii2 052.html Noteup: Search for decisions citing this decision Reflex Record (related decisions, legislation cited and decisions cited) Legislation cited (available on CanLII)

269

* Solicitors Act, R.S.O., 1990, c. S.15 36 DATE: 19991208 DOCKET: C31594 COURT OF APPEAL FOR ONTARIO CARTHY, FELDMAN AND SHARPE JJ.A. BETWEEN: ) ) ) Eric R. Murray, Q.C. ) for the appellants

MAN CHENG FONG, FAT LEON KUAN, KUN CHOK CHIANG, WUN MAN VONG, MOON LAM MAK, and RONALD FOOK YUI FUNG (Plaintiffs/ ) )

Respondents in Appeal) ) and ) ) R. Douglas Elliott and ) Won J. Kim for the respondents )

KAM CHEUNG CHAN, also known as KAM CHAN, DIANE CHAN, THOROLD

INN LTD., 937555 ONTARIO INC., 937556 ) ONTARIO INC., MURCK HOLDINGS LTD., 937559 ONTARIO INC., LIGHTING )

UNLIMITED CORPORATION LIMITED and

270

L. U. FIXTURES INC., carrying on business as ) LIGHTING UNLIMITED, 881062 ONTARIO LIMITED, L. U. REALTY INC., HEART ) ) ) ) ) ) ) )

LAKE LIGHTING CORPORATION, 932379 ONTARIO LIMITED, SOLID PLATINUM INVESTMENTS LIMITED, KEN LI, 896236 ONTARIO LIMITED and STEVEN MUCHA And CHANWARD INVESTMENTS LIMITED YU FASHIONS LIMITED, 881092 ONTARIO INC., 903826 ONTARIO INC. and 903845 ONTARIO INC. ) (Defendants/ ) Appellants) ) )

) Heard: November 5, 1999 On appeal from the Certificate of Assessment Officer M. Kane dated February 15, 1999. SHARPE J.A.: [1] The issue on this appeal is the extent to which self_

represented lawyers are entitled to recover costs in litigation to which they are parties.

271

FACTS AND HISTORY OF PROCEEDINGS [2] The costs at issue arise from an earlier proceeding

before this court. The firm of Genest Murray DesBrisay Lamek appealed an order that it pay solicitor/client costs of an unsuccessful motion to remove the solicitors representing the respondents. The appeal was successfully argued by Eric Murray, Q.C., counsel to the firm, and Genest Murray was awarded party and party costs. The costs were assessed. Genest Murray claimed an allowance for counsel fee for Mr. Murrays work and also claimed an allowance for the work of certain salaried associates, a partner, and an articling student, all of whom assisted Mr. Murray in preparing the appeal. It was common ground before both the Assessment Officer and this court that Genest Murray is entitled to recover an allowance for Mr. Murrays counsel fee as Mr. Murray is not a member of the firm. However, the respondents contended before the Assessment Officer that the firm was not entitled to recover anything for the work of the salaried associates, the partner or the articling student. The Assessment Officer accepted that submission. Relying on an unreported decision, Carrier v. Turner (June 8, 1994, Ont. Ct. Gen. Div.), the Assessment Officer held that the fees of Genest Murrays own

272

lawyers who worked on the appeal with Genest Murrays counsel, Mr. Eric Murray, are not assessable. [3] Genest Murray appeals the decision of the Assessment Officer to this court pursuant to Courts of Justice Act, s.6(1)(c). The matter came before Labrosse J.A. pursuant to s.7(2). He determined that, as there were conflicting decisions in the area, the matter ought to be heard by a panel of the court pursuant to s.7(4). ANALYSIS [4] The appellants position is that the evolution of statutory and common law removed any limitation on the right of self_ represented lawyers to recover costs. The position of the respondents is that there is a general rule in Ontario that a self_represented lawyer is entitled to assess only solicitors fees and disbursements and that fees for trial preparation and counsel fees are not recoverable. While they concede the appellants entitlement to a counsel fee for Mr. Murray, they submit that the additional costs claimed are also in the nature of a counsel fee to which the appellant has no right. [5] Most of the costs at issue relate to the work of salaried

273

associates and an articling student. In my view, the appellants claim to an allowance for these salaried employees is justified by the Solicitors Act, R.S.O. 1990, c. S.15, s. 36:

36. Costs awarded to a party in a proceeding shall not be disallowed or reduced on assessment merely because they relate to a solicitor or counsel who is a salaried employee of the party. [6] The appellant was awarded these costs in the proceeding and I can see no reason to deny it the benefit of this statutory provision with respect to costs related to salaried employees. Section 36 replaced a narrower provision, s. 37 of the Solicitors Act, R.S.O., 1980, c. 478, which allowed recovery of costs by corporations for salaried employees who were entitled to receive the costs as part of their remuneration in addition to salary. In my view, the general language of the current provision, deleting any reference to corporations or to the requirement that the employee be entitled to receive the costs, applies to law firms which are awarded costs as parties to proceedings . [7] It is conceded by the appellant that s. 36 does not apply to the costs claimed on account of the work of the partner who is not a salaried employee, and accordingly, I refer to the common

274

law to resolve that issue. On that aspect of the case, the starting point is London Scottish Benefits Society v. Chorley, (1884) 13 Q.B.D. 872, where the English Court of Appeal held that a self_represented solicitor is entitled to costs. Brett M.R. reasoned that it would be wrong to require a solicitor who is a party to retain another solicitor to conduct the litigation as a condition of recovering costs. This would, he said, amount to a mere circuity as the loss of the self_represented solicitors time devoted to the legal work necessary for the case amounted to a financial loss. The court held, however, that the self_ represented solicitors costs should be taxed on a different basis to avoid recovery of costs for the time and trouble faced by any litigant. The solicitor would not be entitled to include items which the union of the two characters in the same individual renders impossible, such as instructions to, consultations with, and attendances on a solicitor, who in such a case is the party himself. In effect, Chorley holds that self_ represented solicitors are entitled to claim costs on the basis that by devoting their personal efforts to the litigation rather than other remunerative professional work, they incur an

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opportunity cost which is compensable. Chorley has been followed in Ontario: see, e.g. Lalancette v. Walford, [1927] 4 D.L.R. 642 (Ont. S.C.). [8] The Chorley case arose from a regime of a profession divided between solicitors and barristers and did not concern the question of counsel fees. The respondents maintain that the distinction between a solicitors fees and counsel fees for the work of a barrister continues to govern this area of the law in Ontario. They rely on the decision of the former Divisional Court in Johnston v. Ryckman (1903), 7 O.L.R. 511. In that case, one member of a firm was sued. He retained his partner on a fee for service basis. The court held that the lawyer_litigant was entitled to recover costs, including a counsel fee, but only because he had retained another lawyer and agreed to pay him a counsel fee for his work. Had he not entered that arrangement with his partner, or had he represented himself, the court stated that no counsel fee would have been allowed. Boyd C. observed at 521:

The reason why a barrister, sued as a defendant, and who

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acts as his own counsel, cannot recover for counsel fees is because he is in the same plight in this regard as the lay client who pleads his own cause. He is not in Court as an officer of the Court, but as a litigant. The necessary factor in the taxation of counsel fees is that the money must be disbursed for the payment of them as a condition precedent, and the barrister_ litigant cannot pay money or be liable to himself. There is no principle in the matter beyond this it is rather a rule of practice or procedure than anything higher. [9] In a similar vein, Meredith J. noted the distinction between recovery for solicitors costs and taxing a counsel fee and observed at p.524:

I am unable to state any principle upon which all of these rulings can be supported. It cannot be upon the principle that party and party costs are to be looked upon as indemnity only, for that would exclude solicitors costs as well as counsels fees. Nor can it be because of the impossibility of making payment to ones self, for that is far from impossible [10] He concluded that while there seemed to be no basis for the distinction, it was long_standing, and on that account, ought not

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to be disturbed. [11] The respondents cite several modern cases that appear to follow the rule that a self_represented lawyer may not recover anything by way of counsel fee: see: Fanaken v. Bell Temple (1985), 49 C.P.C. 212 (Assessment Officer); Tory, Tory Deslaurier and Binnington v. Concert Productions International Inc. (1986), 14 C.P.C. (2nd) 103 (Assessment Officer); Argiris v. Canadiana Realty Ltd. [1998] O.J. 2146. See also Watson v. Holyoake (1986), 15 C.P.C. (2d) 262 (Ont. H.C.) at 269. In Carrier v. Turner, supra, the case relied upon by the Assessment Officer, Klowak J. stated that the rationale for recovery of costs was indemnity. In her view, it followed that a self_represented solicitor had no claim and that the contrary line of reasoning injects into a costs award the concept of damages and a source of profit. [12] There are a number of cases to the contrary holding that a self_represented lawyer may recover costs, including counsel fee. Jaffe v. Dearing (1992), 7 C.P.C. (3rd) 225 involved a self_ represented Florida lawyer. Austin J. held (at 231) that to follow the traditional rule would be to confuse form and

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substance.

Had Dearing [the self_represented lawyer] retained counsel he would have had to pay counsel. That payment would have been earned by Dearing, in theory at least, during the time that the case was being tried and Dearing himself was not in the witness box. He could or would have been gainfully employed elsewhere. To quote Dearing, an attorneys time is his stock in trade; why in principle should he not be paid for it? [13] Austin J. noted that counsel fees had been allowed by certain assessment officers: Endicott v. Halliday (1982), 28 C.P.C. 114; Wright and McTaggart v. Soapac Industries Ltd. reflex, (1990), 75 O.R. (2d) 394. He concluded that the indemnity principle did apply and that the time is money or opportunity cost rationale justified an award of costs, including the appropriate fees for preparation for an appearance at trial, to the self_represented lawyer. [14] While Klowak J. refused to follow Jaffe v. Dearing, in Carrier v. Turner, supra, Austin J.s ruling has been followed in a number of cases: see Gunning Estate v. Abrams [1997] O.J. No. 4364 (Ont. Ct. Gen. Div.); Jouppi v. Guy [1997] O.J. No. 2170

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(Ont. Ct. Gen. Div.). Most recently, the matter received the detailed attention of Ellen Macdonald J. in Fellowes, McNeil v. Kansa General International Insurance Company (1997), 37 O.R. (3d) 464. After a thorough review of the authorities, including cases dealing with self_represented litigants to which I will refer below, Ellen Macdonald J. held that a self_represented lawyer could be awarded costs, including costs for counsel fees at trial. [15] The appellant relies on a number of decisions, discussed below, on the right of self_represented lay litigants to recover costs. The appellant submits that those cases establish that lay litigants may be awarded costs, including counsel fee, and that it follows that self_represented solicitors must be similarly entitled. [16] Dicta from the Chorley case, supra, was long thought to preclude recovery by self_represented lay litigants of any costs beyond disbursements. In Chorley, the English Court of Appeal stated that the opportunity cost rationale did not apply to self_ represented lay litigants. In the courts view, a self_ represented litigant who is not a solicitor should not be

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entitled to recover costs as such a party does not bring professional skill and competence to the case and a litigants own time and trouble is not a pecuniary loss which the law can measure. Bowen L.J. held that the common law rule precluded recovery, but noted that the Court of Chancery had on occasion allowed a reasonable allowance for the self_represented litigants loss of time. He quoted a leading text on Chancery practice, Lushs Practice (3d ed.) at 896: A party not an attorney, suing or defending in person, is entitled to no more than his expenses out of pocket or at most to a reasonable allowance beyond for his loss of time. [17] In more recent times, the English courts recognized the inconsistency of allowing self_represented lawyers to recover for their time while refusing the same right to lay litigants. In Buckland v. Watts [1970] 1 Q.B. 27 at 31, Donaldson J. observed that in principle the opportunity cost rationale applied equally to self_represented lay litigants, and that their time could be compensated with appropriate modification for lack of professional skill and training. However, Donaldson J. held that he was not free to depart from past authority, and he disallowed the lay litigants claim. His decision was upheld on appeal:

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[1970] 1 Q.B. 27 at 35_38. The anomaly in the United Kingdom was removed by legislation that now allows lay litigants to recover costs: Litigants in Person (Costs and Expenses ) Act (U.K.), 1975, c. 47. [18] In an early Ontario case, Millar v. Macdonald (1892), 14 P.R. 449 (Div. Ct.) at 501, the Chancery rule, referred to above, was applied. Boyd C. held that the successful self_represented defendant was to be awarded disbursements and some allowance, but of a moderate description, for his time and trouble on the argument. Boyd C. noted, however, that the award was exceptional, and was made because the defendant had been faced with committal for contempt. [19] While there appears to be little Ontario authority on the subject, appellate courts in two provinces have held that self_ represented lay litigants may be awarded costs. In Macbeth v. Dalhousie College and University (1986), 10 C.P.C. (2d) 69, the Nova Scotia Court of Appeal held that a self_represented lay litigant was entitled to recover costs primarily on the basis that the common law rule precluding such recovery constituted a denial of equality rights guaranteed by s. 15 of Charter of

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Rights and Freedoms. This reasoning was superceded by subsequent decisions of the Supreme Court of Canada precluding the direct application of the Charter to common law rules governing litigation between private parties (Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd., 1986 CanLII 5 (S.C.C.), [1986] 2 S.C.R. 573) and insisting on the need to establish discrimination on an enumerated or analogous ground to support a s.15 claim (Andrews v. Law Society of Upper Canada, [1989] 1 S.C.R. 143). In Law Society of Prince Edward Island v. Johnston, 1988 CanLII 1365 (PE S.C.A.D.), (1988), 54 D.L.R. (4th) 18, the Prince Edward Island Court of Appeal, referring to Dolphin Delivery, supra, held that the Charter did not apply to the claim of a self represented litigant to costs. That court also rejected the claim on the ground that costs could only be awarded on an indemnity basis. [20] The British Columbia Court of Appeal arrived at the same result achieved in the Macbeth case without resort to the Charter. In Skidmore v. Blackmore 1995 CanLII 1537 (BC C.A.), (1995), 122 D.L.R. (4th) 330, a five judge panel of the British Columbia Court of Appeal overruled the courts earlier decision in Kendall v. Hunt (1979),

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106 D.L.R. (3rd) 277, which held that self_represented litigants could not recover costs in excess of disbursements. In Skidmore, the court found that the 19th century English rule reflected by the Chorley and Buckland cases could no longer be justified. Cumming J.A. pointed out that modern cost rules reflected a variety of purposes. While indemnity remained one important element, costs were also ordered or withheld as a means of controlling behaviour by discouraging frivolous suits or meritorious defences, and as a way of sanctioning unnecessary steps in litigation, as well as misconduct by litigants or their counsel. Modern costs rules also were designed to promote and encourage settlements. In Cumming J.A.s view, it was important for the court to have at its disposal full costs sanctions, whether litigants were represented or unrepresented. Moreover, the refusal to allow self_represented costs on indemnity grounds was difficult to justify as the time is money rationale applies every bit as much to the lay litigant as to the self_represented lawyer. Cumming J.A. noted that any difficulty in measuring the amount to which the lay litigant is entitled could be answered in British Columbia by strict application of the tariff. Finally, it was held that the court was competent to effect this change in

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the common law as (at 342) the matter of costs is a question essentially within the discretion of the court, it bears directly on matters of practice, and it is something on which this court is well situated to rule. [21] It is apparent from this review of the case law that the preponderance of modern authority supports the contention that both self_represented lawyers and self_represented lay litigants may be awarded costs and that such costs may include allowances for counsel fees. Since the Chorley decision in 1884, it seems not to have been doubted that self_represented solicitors could recover costs for solicitors fees. The respondents did not take issue with that proposition on this appeal. Johnson v. Ryckman, supra stands for the proposition that a self_represented solicitor could not recover anything for counsel fee, but as I have already noted, it was acknowledged in that case that there seemed to be no rationale for the rule. I am not persuaded by the respondents submission that this 1903 case, which rests on such a shaky foundation, should continue to govern us today. Johnson v. Ryckman has been superceded by more recent cases that have quite properly ignored the untenable distinction between

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solicitors fees and counsel fees. I can see no reason for maintaining the distinction between solicitors fees and counsel fees that was already outmoded almost one hundred years ago. The legislatures decision to allow parties to recover costs in relation to the work of salaried employees provides added impetus to reject the view that self_represented solicitors should be precluded from recovering costs. Two provincial appellate courts have held that lay litigants may recover costs, including counsel fees. The clear trend of both the common law and the statutory law is to allow for recovery of costs by self_represented litigants. [22] Quite apart from authority and as a matter of principle, it seems to me to be difficult to justify a categorical rule denying recovery of costs by self_represented litigants. As noted in the Fellowes McNeil, supra and in Skidmore, supra, 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. It seems to me that all three purposes are fostered by allowing the trial judge a

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discretion to award costs to self_represented litigants. [23] Since the Chorley case over one hundred years ago, it had been accepted that self_represented lawyers are entitled to indemnity on the time is money or opportunity cost rationale. It is difficult to see why the opportunity cost rationale should not be more generally applicable to self_represented litigants. The self_represented lawyer possesses legal skills, but lacks professional detachment when acting in his or her own cause. If the law is prepared to compensate lawyers for this loss of time when devoting their efforts to their own cause, I fail to see any basis for denying the same entitlement to self_represented lay litigants who are able to demonstrate the same loss. [24] A rule precluding recovery of costs, in whole or in part, by self_represented litigants would deprive the court of a potentially useful tool to encourage settlements and to discourage or sanction inappropriate behaviour. For example, an opposite party should not be able to ignore the reasonable settlement offer of a self_represented litigant with impunity from the usual costs consequences. Nor, in my view, is it desirable to immunize such a party from costs awards designed to sanction inappropriate behaviour simply because the other party

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is a self_represented litigant. [25] I would add that nothing in these reasons is meant to suggest that a self_represented litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge, and as Ellen Macdonald J. observed in Fellows, McNeil v. Kansa, supra, there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be cases where the self_represented litigants conduct of the proceedings is inappropriate. The trial judge maintains a discretion to make the appropriate costs award, including denial of costs. [26] I would also add that self_represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The self_ represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done

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by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity. As the early Chancery rule recognized, a self_represented lay litigant should receive only a moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well_placed to assess the appropriate allowance, if any, for a self_ represented litigant, and accordingly, the trial judge should 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. CONCLUSION [27] For these reasons, I would allow the appeal, and set aside the Certificate. It is still necessary to determine whether the amounts claimed for the salaried associates, partners and articling student are reasonable. Accordingly, I would refer the matter back to the Assessment Officer with a direction that the costs be assessed in accordance with these reasons. The appellant is also entitled to costs of the Assessment and of this

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appeal. Robert J. Sharpe J.A. I agree. J. J. Carthy J.A. I agree. K. Feldman J.A.

Released: December 8, 1999

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