Court of Appeal File Number: 82 10 - CA (Court File Number: F/C/104/09) IN THE COURT OF APPEAL OF NEW BRUNSWICK BETWEEN: ANDRE

E MURRAY APPELLANT (Plaintiff) -andBETTY ROSE DANIELSKI RESPONDENT (Defendant)

Appellants Brief for Motion to Adduce Further Evidence Filed by APPELLANT (Plaintiff) ANDRE MURRAY

Andr Murray APPELLANT (Plaintiff) 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Telephone Number: (506) 472 - 0205 E-mail address: andremurraynow@ gmail.com

Solicitor for RESPONDENT (Defendant) Betty Rose Danielski E. Thomas Christie, QC CHRISTIE LAW OFFICE Suite 306, 212 Queen Street, Fredericton, New Brunswick Canada E3B 1A8 Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

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

Appellants Motion To Adduce New Evidence Submission Part I INDEX Page Part I INDEX ______________________________________ PART II STATEMENT OF FACTS ___________________ PART III - ISSUES ___________________________________ A. The Court must determine whether the Appellant meets the criteria necessary for the admission of further evidence. ______________________________________ 3 i 1 3

B. The Court must determine whether under Rule 62.24(1) and 62.24(1) (c) of the Rules of Court that the Respondent pay of costs of the within Motion and the costs of the Appeal forthwith for non-compliance with Rule 62.20 Filing and Service of Respondents
Submission_________________________________________

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C. Costs of the within Motion ______________________ PART IV ORDERS SOUGHT ________________________ SCHEDULE A - LIST OF AUTHORITIES ___________ SCHEDULE B - TEXT OF RELEVANT PROVISIONS OF STATUTES OR REGULATIONS__

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PART II STATEMENT OF FACTS 1. The Appellant respectfully requests an Order from the Honorable Court of Appeal permitting the Appellant to adduce fresh evidence which the Appellant contends will be a deciding factor in the determination of the Court of Appeal, further, whether to allow the Appeal. May this please the Honorable Court of Appeal, the here within subject fresh evidence is currently abundantly referenced and quoted in the Appellants Submission. Note: the Appellant believes, absence of this fresh evidence would mean that the Honorable Court would be lacking fundamental evidence in considering facts before the Court.

2. The Appellant as Plaintiff before the Learned Trial Judge hearing the Plaintiffs Motion for Orders granting a Continuance of the subject Mechanics Lien Action was unable to bring, to the attention of the Honorable Court the fact that this document of evidentiary value exists, Moreover, the relevant substantive material of the same document, was not permitted on the Court Record at the hearing because the Court did not allow the Appellant to fully address the issues, before the Court, nor had the Learned Trial Judge allowed for a long enough recess, (in this case fifteen minutes) that the Plaintiff may acquire and properly file said documents in response to the learned Trial Judge surprising direction. 3. Consequentially following dilatory and other demonstrably undesirable behavior of the Thomas Christie Solicitor for Respondent, the Appellant thought is appropriate to request of this Honorable Court, under Rule 62.24(1) and 62.24(1) (c) of the Rules of Court for an order

for payment of costs of the within Motion and the costs of the Appeal forthwith for non-compliance with Rule 62.20 Filing and Service of
Respondents Submission. Under that rule, the Respondent should have, according to the Rules of Court (b) serve a copy of the Respondents Submission upon the Appellant, not later than the 20th day of October, 2010, but did not. With great deal of resistance the Solicitor finally agreed to Serve the subject documents according to Rules of Court except this Court Document Service was five days late according to Rules of Court.

PART III - ISSUES A. The Court of Appeal must determine whether the Appellant meets the criteria necessary for the admission of further evidence.

B. The Court of Appeal must determine whether under Rule 62.24(1) and 62.24(1) (c) of the Rules of Court that the Respondent pay of costs of the within Motion and the costs of the Appeal forthwith for noncompliance with Rule 62.20 Filing and Service of Respondents
Submission. Under that rule, the Respondent should have, according to the Rules of Court (b) serve a copy of the Respondents Submission upon the Appellant, not later than the 20th day of October, 2010, but did not.

C. The Court of Appeal may determine (in light of circumstances) that the Awarding of Costs against the Respondent is appropriate. A. Admission of further evidence 4. This fresh evidence being requested to be heard by the Court of Appeal is Affidavit evidence previously presented to the presiding

Appellant Justice on the hearing August 10, 2010, of a Motion for Leave to Appeal furthermore, contains as an exhibit, a copy of a contractual investment instrument document, the BIDDING PAPERS AND TERMS OF SALE, as is referred to in the Appellants Submissions before this Honorable Court and may be pivotal to the Appeal being allowed,

5. The relative Rules of Court to be considered are as follows: 62.21 Powers of Court of Appeal To Draw Inferences and Make Decisions (1) The Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. Further Evidence (2) The Court of Appeal or a judge thereof may receive evidence (a) on interlocutory applications, (b) as to matters which have occurred after the date of the order or decision appealed from, and (c) on special grounds, upon any question of fact. 6. Since the Appellant would always act with reasonable diligence and promptness in representing the Appellants case, before the Honorable Court of Queens Bench, Trial Division, moreover, in light of the fact that the Appellant was not permitted to argue or represent the Plaintiffs case, as the Learned Trial Judge dominated the entire Court proceeding, consequently, the pertinent evidence required to satisfy the

discretionary position, taken by the Learned Trial Judge, first of all could not reasonably have been anticipated by the Appellant; as the

matter scheduled to be heard before the Court was a Motion for a Continuance of the Mechanics Lien Action.. 7. Should the Appellant be permitted to adduce evidence, it, would likely have an important influence on the result of the case, and possibly influence the decision of the Court of Appeal as to should the Appeal be allowed. 8. The within request of adduced evidence, shall include a document (a investment instrument) signed by a Solicitor acting for the vendor Royal Bank of Canada and a Solicitor acting as Agent for the Purchaser, 501376 N.B. Ltd, a body corporate, specifically: BIDDING PAPERS AND TERMS OF SALE essentially nothing more than an Agreement to Purchase Dated: July 16, 2009. Moreover, the signatories to the here within above mentioned BIDDING PAPERS AND TERMS OF SALE, are the same here within referenced Solicitors, whom are the sources of the hearsay information presented to the Honorable Court, upon which the presiding Learned Trial Judge did rely upon, furthermore, did place onto the Court Record as evidence. The Appellants position on this matter points to the blatantly evident conflicts of interest.

9. The Appellant requests, that, in the interests of justice, this fresh evidence be admitted, Appellant Andre Murray asserts that the Appellant was not deficient in the rule of due diligence, because Appellant Andre Murray was not given a fair opportunity by the Learned Trial Judge to present all relevant information and arguments

to the Court Furthermore, Appellant Andre Murray could not reasonable have anticipated the learned Trial Judge.

10. In Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) Justice RICHARD J.A. listed the criteria for the reception of new evidence on appeal at paragraph 16 as follows: [16] 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. 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.

(2)

(3)

(4)

11. Furthermore, in Ryan v. Law Society of New Brunswick, 2000 CanLII 17232 (NB C.A.) Justice Robichaud, JJ.A. addressed the criteria upon

which the Court should permit further evidence; (please see under Rule 62.21(2), beginning at page 8 to page 13), as follows: 13. In New Brunswick the issue of when this Court should permit further evidence under Rule 62.21(2) was definitively dealt with in Workmen's Compensation Board (N.B.) and Alyes v McCarthy and Eastern Paving Ltd (1982), 42 N.B.R. (2d) 160 (N.B.C.A.) at paragraphs 4, 5 and 6: 4. The requirements which must be met to justify the reception of fresh evidence were considered by this court in Kenny v Ross E. Judge Transport Ltd et al (1970), 2 N.B.R. (2d) 430, and depend upon whether special grounds must be shown. If special [Page 9] grounds are required to be established, three . conditions must be fulfilled: 1) It must be shown the evidence could not have been obtained with reasonable diligence for use at the trial; The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

2)

3)

5. If special grounds are not required to be established, a substantial case must be made out to justify this court in exercising its discretion in favour of the reception of fresh evidence. 6. It is clear, we think, that a decision on an application such as this present one requires a proper

balance to be struck between the need to have available for adjudication complete and accurate facts, on the one hand, and the requirement that a judgment on a question of fact which was justified by the evidence adduced at a trial should not lightly be disturbed, on the other. See also: Marette v. Sainsbury [1928],1 D.L.R. 273 (S.C.C.); Boss v. Leger, Thibodeau and Assumption reflex, (1987), 82 N.B.R. (2d) 80 (N.B.C.A.) 14. Rule 62.21 gives the Court very broad discretionary powers. But as has been established by the authorities there is a restrictive three-part test which the Appellant must meet. As well this Court should not relax the criteria so as to facilitate an unsuccessful litigant's desire to retry a case. The Court also faces the difficulty of not [Page 10] being privy to the actual expert medical opinion which the Appellant seeks to have admitted. The Court only has a general understanding of this potential evidence, which is gleaned from the Notice of Motion and the affidavit of Mr. Ryan. Based upon the materials before this Court, we are satisfied that the evidence of Dr. Cook would probably have an important influence on the issue of sanction, and that it is apparently credible. If medical opinion indicates that Mr. Ryan did what he did because of mental illness and that the illness is curable or controllable this evidence may have an important impact on the sanction. As well, based upon the curriculum vitae of Dr. Cook, in all likelihood the evidence will be credible. 15. Therefore the important and critical area of this motion is that of the "due diligence" of Mr. Ryan in bringing this evidence forward. 16. Counsel for the Law Society is quite persuasive in his argument that at the time of filing his answer to the complaints, Mr. Ryan stated that he was "in the midst of a severe emotional crises and depression". So how can he now call for further evidence as to his emotional and depressive state of mind?

Counsel for the Law Society adds that Mr. Ryan should have obtained this evidence during the adjournment and that his failure to do so establishes Mr. Ryan's lack of due diligence. 17. Black's Law Dictionary (5th edition) defines "due diligence" as follows: due diligence. Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and [Page 11 prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case. 18. A review of the law would indicate that the rule of due diligence will be strongly adhered to in civil matters but less so in criminal cases. In civil matters there must be finality. If courts were to permit new evidence with alacrity, litigation would be prolonged and there would never be the assurance that a matter is finally concluded. In their text The Conduct of an Appeal, Mr. Justice John Sopinka and Mark A. Gelowitz, Butterworths, 1993, express the following view at page 59: In criminal matters, it is at least arguable that the policy that there must be finality to litigation is of less importance than the policy that the innocent ought not to be convicted 19. This view was confirmed in the recent decision of R. v Warsing 1998 CanLII 775 (S.C.C.), [1998] 3 S.C.R. 579 as summarized in the headnote: Per Cory, lacobucci, Major and Binnie JJ.: The Court of Appeal's decision to admit the fresh evidence, after balancing the relevant factors, was correct and should be upheld. While the fresh evidence failed the due diligence test in Palmer, it is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in

light of other circumstances. If the evidence is compelling and the failure to meet the test should yield to permit its admission. Here, the fresh evidence sought to be introduced was relevant, credible and, if believed, could affect the verdict. The accused 's failure to meet the due diligence requirement is serious and in many circumstances would be fatal; however, in the [Page 12] circumstances of this case, that failure was overborne by the interests of justice. 20. In this case Mr. Ryan appeals the sanction imposed by the Discipline Committee of the Law Society. While it does not constitute a criminal sanction as such, it remains one that will have significant impact on Mr. Ryan's life and his ability to earn a livelihood. In the spectrum between civil matters and criminal matters the Court is of the view that a sanction affecting livelihood falls somewhere in between, and somewhat closer to a criminal than a civil sanction. Consequently, following R. v Warsing supra, due diligence is only one of the factors and should bear no greater weight than the others. 21. On the actual issue of whether Mr. Ryan exercised due diligence it can be argued that in fact he was diligent. Counsel for the Law Society suggested that the only way Mr. Ryan could show due diligence is if he submitted himself to something akin to an independent medical examination or psychiatric evaluation. The transcript of the evidence at page 256 reveals that Mr. Ryan's counsel did consult with Mr. Ryan's physicians during the adjournment. But he concluded: "... because there was no treatment of the condition during the period of time that we're dealing with, there was very little that they could add to this...". We are of the view that the actions of Mr. Ryan's counsel were reasonable in the circumstances and indicate, given the facts as he had them at the time, a degree of due diligence. As well, given Mr. Ryan's possible mental condition, his due diligence should not be measured against a reasonable and prudent person but as defined in Black's (supra): "... not measured by

any absolute standard but depending on the relative facts of the special case". [Page 13] 22. Also, as stated by Bastarache, J.A. (as he then was) in Tepper v Valley Equipment Ltd [1997] N.B.J. No. 78 (N.B.C.A.) at paragraph 19, "the admission of fresh evidence by the trial judge must be exercised by balancing the public interest of finality of litigation and the realities of the case before her...". The Court is therefore of the view that the Appellant has satisfied the three-part test of admissibility and the fresh evidence should be received. The realities of this case warrant the hearing of this proposed further evidence. 12. The fresh evidence requested to be included, could not have been obtained with reasonable diligence for use at the June 10, 2010, Hearing of a Motion for Continuance, because the Appellant was not allowed to fully speak to the matter before the Learned Trail Judge. As referenced above in Ryan v. Law Society of New Brunswick, 2000, supra, Black's Law Dictionary (5th edition) defines "due diligence" as follows: due diligence. Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case. 13. The Appellant (Plaintiff in that matter) had a right to be heard on the issues before the learned Trial Judge, at the June 10, 2010, Motion for a Continuance, furthermore, procedural fairness required the Motion Judge to hear the Appellant. It is only after hearing the Appellants arguments on the issues before the Court and any arguments made in

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reply by the other side, that a Motion Judge would, then, have been able to judicially exercise the discretionary powers conferred by section 52.1 (1) (b) of the Mechanics' Lien Act, determining the Motion for a Continuance of the action. 14. In Munn v. Rust, 2006 NBCA 87 (CanLII) Justice LARLEE, J.A confirmed that, procedural fairness requires a Motion Judge must hear both sides of any argument offered; (please see paragraphs 13 through to and including paragraph 15) as follows: [13] At the hearing of Mr. Rusts motion, the issue of Mr. Munns own motion, including his request to crossexamine the deponents of the affidavits filed in support of Mr. Rusts motion, was summarily addressed in the following exchange between the motion judge and counsel for Mr. Munn:

THE COURT: [] I am not going to hear your motion, the, your counter motion to Mr. Costellos, and I am not ordering that these people be crossexamined on their affidavit, certainly not Mr. Rust. Well, nobody, and well MR. MCALLISTER: May I have reasons THE COURT: No. Im going to listen to Mr. Costello and you on the motion that is before me. However, one of the reasons is that if every time there was a motion before the Court, the other party then filed late another motion to counteract the first motion, there would

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be nothing but chaos here. You had plenty of time to file your motion. You had plenty of time and you didnt. Its out of time; Im not hearing it. The end. Sit down. Sit down. Mr. Costello.

[14] I am of the view that, in refusing to consider Mr. Munns application to cross-examine the deponents of the affidavits, the motion judge failed to exercise her discretion judicially. Mr. Munn had a right to be heard on that issue, and procedural fairness required the motion judge to hear him. It is only after hearing Mr. Munns arguments in support of his request to cross-examine and any arguments made in reply, that the motion judge would have been able to judicially exercise the discretionary powers conferred by Rule 39.03. [15] In my view, the appeals should be allowed on the common ground raised in both Notices of Appeal that allege that the motion judge erred in the exercise of the discretion conferred by Rule 39.03. It follows that the judges order striking out those portions of the Plaintiffs Statement of Claim which assert a claim against the Defendant, Edward B. Rust Jr., must be set aside. My disposition of this appeal requires that the matter be returned to the Court of Queens Bench for consideration of the issues raised by Mr. Munns request to cross-examine and a fresh determination of all the issues raised in the Notices of Motion. 15. The here within above referenced Munn v. Rust, 2006 NBCA 87 (CanLII) sounds similar to the verbal exchange found Recorded and provided by Official Certified Transcript, which occurred between the Appellant Andre Murray and the Learned Trial Judge, on June 10, 2010 Motion for a Continuance further, the same matter before this Honorable Court.

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16. The fresh evidence when adduced, will have an important influence on the result of this Appeal, seeing that the Appellant believes and relies on real evidence, to assert the Appellants claims, against the incredible inclusion of the particular hearsay information. The inclusion of that particular hearsay information was in fact requested by and subsequentially entered onto the Court Record by the Learned Trial Judge in the Court hearing and procedure of June 10, 2010. The following impugned action and position that hearsay information can be admissible under these particular circumstances, appears to have the support of the Solicitor for the Respondent (in that matter Defendant). The subject hearsay information was sourced, by the Solicitor for the Respondent, (during a Court declared Recess of fifteen minutes) from the two cosignatories to the Bidding Papers and Terms of Sale investment instrument document which said investment is directly related to the same property identified in the Appellants Mechanic Lien Action. 17. May this please the Honorable Court the fresh evidence intended to be adduced, includes a Investment Instrument BIDDING PAPERS AND TERMS OF SALE document. This document was signed by a Solicitor acting for a Vendor the Royal Bank of Canada and a Solicitor acting for a Purchaser, 501376 N.B. Ltd, a body corporate. Both signatories to the here within BIDDING PAPERS AND TERMS OF SALE which is essentially an Agreement to Purchase Dated: July 16, 2009, moreover, the here within mentioned signing Solicitor agents, are the same parties upon which the solicitor for the Respondent

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obtained hearsay answers to questions intended to determine a question at law.

18. The Appellant requests that in the interests of justice this fresh evidence be adduced. Appellant Andre Murray was not deficient in the rule of due diligence, as defined here within and above in Blacks Law Dictionary, because, Appellant Andre Murray was not given a fair opportunity by the Learned Trial Judge to present all relevant information further, to offer argument to the Honorable Court on the Record, this right to be heard is due to the Appellant Andre Murray, in a fair proceeding, according to the principle of natural justice and procedural fairness.

19. As referenced and quoted above in Munn v. Rust, 2006 NBCA, supra, where an Appeal was allowed on the ground that the motion Judge erred in the exercise of the discretion, and the words The end were prematurely verbalized by the presiding Motion Judge , the Appellant (in this matter) Andre Murray also heard the words The end repeated, as Appellant Andre Murray attempted to address the numerous issues raised by the motion Judge, without success, and despite having a right to be heard on that issue. Procedural fairness required the motion Judge to hear the Appellant (Plaintiff in that matter).

20. R. v. La, [1997] 2 S.C.R. 680, Justice LHeureux-Dub J. examines disclosure, as a process, which is a necessary and important feature of the Canadian legal landscape.

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(Please see provided below at paragraph 36 through to and including paragraph 40), as follows: 36 In a nutshell, my position is that the duty to disclose is exactly that: an obligation resting upon the Crown. It does not constitute, and in my view, has never constituted a separate and distinct right operating on its own as a principle of fundamental justice. On the contrary, the disclosure obligation is necessary because generally the failure to disclose impedes the ability of the accused to make full answer and defence. R. v. Stinchcombe, 1991 CanLII 45 (S.C.C.), [1991] 3 S.C.R. 326 (Stinchcombe (No. 1)), per Sopinka J., at p. 336. To establish the very process of disclosure as a distinct constitutional right would be, in my view, a substantial departure from the jurisprudence in this area and would needlessly complicate this area of law. 37 While this case is primarily concerned with lost evidence which was once in the possession of the Crown, I believe a proper analysis of this issue requires an examination of the relationship of the disclosure duty to s. 7 of the Charter. 38 At the outset, however, I would stress that disclosure, as a process, is a necessary and important feature of the Canadian legal landscape. The decision of this Court in Stinchcombe (No. 1) was a desirable evolution in the law, and one which, for the most part, encouraged a fairer system for accused persons. It also inspired a spirit of openness in the law, which I believe has played a large part in advancing the search for the truth in criminal trials. 39 Nevertheless, I have never thought of Stinchcombe (No. 1) as having effected a radical departure from the direction which was being taken in the common law, despite a number of judgments and academic opinions which suggest a contrary opinion. Rather, I agree with Professor Alan N. Young, Adversarial Justice and the Charter of Rights: Stunting the Growth of the Living Tree (1997), 39 Crim. L.Q. 406, at p. 419, that Stinchcombe did not create a new right with respect

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to disclosure as the common law has always considered full disclosure to be an integral part of the process. See also R. v. C. (M.H.), 1991 CanLII 94 (S.C.C.), [1991] 1 S.C.R. 763. 40 In my view, what Stinchcombe (No. 1) truly recognizes is that disclosure is essential to enable the accused to exercise properly his right to make full answer and defence, itself a principle of fundamental justice under s. 7. Additionally, disclosure helps ensure that the accused will have a fair trial, as the possibility of an ambush by the Crown is removed: see for example, R. v. Cook, 1997 CanLII 392 (S.C.C.), [1997] 1 S.C.R. 1113. There are a number of other practical advantages to full disclosure, not the least of which is the encouragement of early resolution of criminal charges: Stinchcombe (No. 1), at p. 334. See also the Report of the Attorney Generals Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993), under the Chair of G. Arthur Martin. Still, for constitutional purposes, it is crucial to recall that disclosure is no more than a process, albeit an important one, which exists to further the rights of an accused as set out above.

21. The Honorable Law Courts of Canada, have long repeated, that it is improper to permit trial by ambush. Though the matter referred to above in R. v. La, [1997], supra, was a criminal matter, the principals however, may apply to the matter before this Court. The fundamental reason the BIDDING PAPERS AND TERMS OF SALE document, was not included, in the submitted materials, before the learned trial Judge, by the Appellant (Plaintiff in that matter) is simply explained by the fact that the Motion to be Heard that day had been filled (by the Plaintiff) with Court of Queens Bench, as a Motion for Orders allowing a Continuance of a Mechanics Lien Act Action, furthermore, the Appellant was preparing for the Motion for a Continuance of the Mechanics Lien Action, there existed no foreseeable criteria to include

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the BIDDING PAPERS AND TERMS OF SALE document, amongst the Court filled materials., BIDDING PAPERS AND TERMS OF SALE document seemed to have no bearing on, whether or not the Court should grant a Order for a Continuance.

22. It is noteworthy, that Max Richardson, whom was accompanying Thomas Christie Solicitor for the Respondent, found it appropriate to verbalize out loud from the back of the Court Room in this regard, MR. RICHARDSON states its the best the whole of the affidavit. I didnt realize that the exhibits were in substance in (may it please the Honorable Court please see: Book of Essential References: Transcript page 4. line 12)

23. The Appellant (may this please the Court) was extremely surprised by the direction the Learned Trial Judge was taking including the lack of concern for procedural fairness. The Appellant believes the here within Hearing of the June 10, 2010, the Motion for Orders allowing a Continuance of the Mechanics Lien Action, assumed the appearance the term the Appellant is familiar with called trial by ambush, referred to above in R. v. La, [1997], supra, seems appropriate. Further, referred to above in R. v. La, [1997], supra the common law has always considered full disclosure to be an integral part of the process, the Appellant prepared for the Motion, by including the relevant material that appeared to be necessary to persuade the Learned Trail Judge, first, that the requested Continuance was necessary, second, that the Appellant was not negligent in moving the action forward, thirdly, outside factors where impeding, the expedient resolution of the mater

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and lastly, it would be in the interest of Justice to grant the Requested Continuance of the Mechanics Lien Action, so that it may be heard in its merits. The Appellant did not know before hand that the Appellant would have to Counter the surprise position, unilaterally taken by the Learned Trial Judge, which was not permitting arguement by either party to the action. This is evidentially to the prejudice of the Appellant. May it please this Honorable Court: full disclosure is essential to enable the Appellant, to exercise properly his right, to make full answer and defence, which is itself a principle of fundamental justice

24. The requirements, which must be met to justify adducing fresh evidence, as considered by this Court, further; those prerequisites may depend upon whether special grounds must be shown. If special grounds are required to be established, three conditions must be fulfilled: the first condition, upon which, special grounds may be established, is it must be shown the evidence which is now required could not have been obtained with reasonable diligence for use at the trial; the reason the evidence could not have been obtained with reasonable diligence, to be used at the June 10, 2010, hearing of a Motion for Orders granting a Continuance of the Mechanics Lien Action pursuant to the Section 52.1 (1) (b) of the Mechanics Lien Act, is because the learned Trial Judge did not allow for a long enough recess (15 minutes) that the Appellant may obtain the documents and return to the Courts. However, the learned Trial Judge having announced a 15 minute recess

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did not resume Court for one hour. The second portion of the Court hearing lasted entirely eleven minutes during which the 11 minute Court proceedings where entirely dominated by the learned Trial Judge establishing the thesis followed by the antithesis and finally arriving at the predetermined synthesis as had been decided by the Trial Judge prior to the recess. Pleading or argument from the Appellant was not permitted except at the final conclusion of the eleven minute hearing, at which time the learned Trial Judge interjected verbalizing to the effect, the end and abruptly left the Court Room repeating the end - the end thereby denying and effectively preventing the Plaintiff in that matter (Appellant in this matter) from being able to speak on the record to the issues being raised or to the fact that the document: BIDDING PAPERS AND TERMS OF SALE existed; since the Plaintiff was not provided the opportunity to elaborate on the implications of the BIDDING PAPERS AND TERMS OF SALE contractual document (subject of the request to adduce fresh evidence) the Learned Trail Judge misapprehended the conflict of interest and the matter of credibility of the source of the Hearsay information brought before the learned Trial Judge.

The second condition, upon which, special grounds may be established, is that the evidence must be such, that, if given, it would probably have an important influence on the result of the case, although it need not be decisive;

Appellant Andre Murray is confident that adducing fresh evidence as before the Honorable Court of Appeal will likely be important and

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influential in assisting the Honorable Court of Appeal in its deliberations and likely indispensable to its decision

The third condition, upon which, special grounds may be established ,is the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible;

Appellant Andre Murray is of the knowledge that the anticipated fresh evidence be credible; Appellant Andre Murray contends that the subject evidence is Affidavit evidence which includes, a exhibit which is a copy of a document signed by a Solicitor for the Vendor Royal Bank of Canada and the Solicitor acting as Purchasing Agent for the intended Purchaser, 501376 N.B. Ltd, a body corporate. The intended evidence is an contractual investment instrument BIDDING PAPERS AND TERMS OF SALE and Agreement to Purchase Dated: July 16, 2009. Furthermore, the Appellant believes both signatories to the here within above mentioned purchase and sale document, evidently have palatable conflicts of interest, moreover, the same subject signatories are the very same Solicitors whom where sought by Solicitor for the Respondent (Defendant in that matter) by instruction of the Learned Trial Judge to obtain pivotal hearsay information, which was subsequently presented to the Court of Queens Bench Trail Division hearing in progress and was ultimately relied upon by the learned Trial Judge, to render a Decision June 10, 2010, hearing of a Motion for Orders granting a Continuance of the Mechanics Lien Action pursuant to the Section 52.1 (1) (b) of the Mechanics Lien Act.

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25.

Should the Honorable Court of Appeal in this matter determine that special grounds are not required to be established, further, that the Orders: adducing fresh evidence as requested by the Appellant be granted, then the Appellant Andre Murray believes that the following, contained here within, is a sufficiently established case to justify to this Court of Appeal, the exercising of its discretion in favor of the reception of fresh evidence. Here, the fresh evidence sought to be introduced is relevant, credible and would likely affect the verdict. May this please the Honorable Court of Appeal: Rule 62.21 gives the Court very broad discretionary powers
62.21(2) The Court of Appeal may receive (c) on special grounds, upon any question of fact. evidence:

The Appellant Andre Murray understands that a decision on an application such as this requires a proper balance to be struck between the need to have available for adjudication complete and accurate facts. 26. Appellant Andre Murray requests that in the interests of justice this fresh evidence be admitted, Appellant Andre Murray was not deficient in the rule of due diligence, because Appellant Andre Murray was not given a fair opportunity by the Learned Trial Judge to respond with relevant information and counter arguments to those criteria being established (at such a late date) nemo judex in causa sua debet esse. Appellant Andre Murray was denied counter claim and or rebuttal opportunity, due in a fair proceeding according to the principle of natural justice.

27.

The Learned Trial Judge decided to dismiss the Motion before the Court, and in effect did not grant the requested Order for a Continuance

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appears to have been based on implications from the source document, which the Appellant is now requesting be adduced as fresh evidence. Note: Learned Trial Judged erred in law by misapprehending that the Sale which the subject BIDDING PAPERS AND TERMS OF SALE speak to, actually had closed, when in fact the sale has not yet closed, furthermore, as of the dating of this document the subject property remains in escrow.

28.

Appellant Andre Murray believes that the Court of Queens Bench Trail Division and the Learned Trial Judge hearing the motion are bound, above all other considerations, to do justice in each particular case. May it please this Honorable Court of Appeal the Appellant believes that to do justice in a particular case requires a balancing of potential prejudice to both parties resulting from the decision to grant or refuse the requested Orders. A palatable prejudice will result against Appellant Andre Murray should his requested Order to present relative fresh evidence not be granted. No prejudice would be visited upon the Respondent by having the evidence presented to this Honorable Court for consideration on the Merits.

29.

The Affidavit and exhibits which the Appellant requests this Honorable Court to receive as fresh evidence is located in the Record on Motion TAB 4, page 20.

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B. The Respondent pay of costs of the within Motion and the costs of the Appeal forthwith for non-compliance with Rule 62.20 30. The Appellant further requests an Order pursuant to Rule 62.24(1) and 62.24(1)(c) of the Rules of Court for an order that requires the Respondent pay costs of the within Motion and the costs of the Appeal forthwith for non-compliance with Rule 62.20, Failure to Comply with
Rule the Appellant subsequently experienced unnecessary expense and

great deal of stress attempting to receive proper service of Respondents Submission according to Rules of Court. The Respondent not only failed timely service of Respondents Submission,
nevertheless, when the Appellant pursued the Court of Appeal enquiring after the Respondents Submission on the last day of the allowable Filing date

according to Rules of Court, the Respondent had failed to File in that early afternoon. The Solicitor for Respondent reveals, finally, that he is not
interested in prescribing to strict adherence to service according to the Rules of Court, instead the Solicitor is interested in sharing stories about recent

precedence regarding changes occurring and the acceptance of electronic service. However, a copy of the Respondents Submission is required service
upon the Appellant according to the Rules of Court, in this case requiring the subject Document Service no later than the 20th of October, 2010, this did not occur. The Solicitor for the respondent, in this matter, has a demonstrable history of non compliance with the Rules of Court 20.02(2), 18.02(1)(a), 18.03(1), furthermore, the Appellant relies upon the Respondent 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 Appellant requests the Court to consider the following when ruling as to costs of the within Motion and the costs of the Appeal

23

31.

The relevant sections of the New Brunswick Rules of Court are reproduced below: 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. 62.20 Filing and Service of Respondents Submission Not later than the 20th day of the month preceding the month in which an appeal is eligible to be heard, each respondent shall (a) subject to Rule 62.20.2, file the original and 4 copies of the Respondents Submission with the Registrar, and (b) serve a copy of the Respondents Submission upon each of the parties to the appeal. 32. As a note: The Law Society of New Brunswick Code of Professional Conduct, CHAPTER 15 (2)(iii) states The lawyer shall agree to reasonable requests by another lawyer for an extension of time, the waiver of a procedural formality and other similar accommodations as long as the position of the client of the lawyer will not be prejudiced materially by agreeing to the accommodation. And (vii) The lawyer shall practise the same principles of good faith and courtesy toward

24

laypersons lawfully representing themselves or others in a matter as the lawyer is required to observe toward other lawyers.

33. The position of the Solicitor for the Respondent, regarding not granting consent to a Continuance, (when requested by the Appellant) which 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, has caused unnecessary delay and expense.

34. 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: (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

25

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 .

35. It does appear to the Appellant, 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 Respondents Solicitor to not take advantage of slips, irregularities or mistakes on the part of the Defendant, not going to the merits, which does not involve a prejudice of the rights of the Solicitors client. Furthermore, the Solicitor for the Respondent should have consented to the reasonable requests for a Continuance.
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.

36. Accordingly, one would expect the same principles of good faith and courtesy should be extended to a self represented litigant; further,

26

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 Appellant, has been denied access to all documentation necessary for a proper discovery, (according to the Mechanics Lien Act schedule) the subject request of an extension of time, that the documents may be retrieved is abundantly reasonable. The position of the Respondent would not have been materially prejudiced by agreeing to the requested extension of time. 37. 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 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.

38. 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, in the appellants view, still apply.

39. First, as mentioned in Blanger v. Roussel, 2006, supra, when ruling on an application under Rule 62.24(1), the Court must take into account

27

the interests of every party. It is in the interest of the Appellant that the Solicitor for the Respondent complies and adheres to the Rules of Court. When the Solicitor for the Appellant does not respond to communications from the Appellant, the result is unnecessary delay, as a consequence, this behavior causes the Appellant to be in a position of uncertainty and causes unnecessary stress, and in a typical example, there is much time is spent attempting to understand why there was no response, the Appellant naturally questions his own possible errors and as a consequence subsequently finds himself researching the Rules of Court studying for his possible errors when in fact it was not necessary.

40.

The Appellant should not be placed in a position of having to chase the Respondents Solicitor to receive documents that the Rule of Court compels the Respondents Solicitor to serve upon the Appellant according to the Rules of Court.

41.

Furthermore, it is in the interest of the Solicitor for the Respondent to reply to inquiries because the Law Society of New Brunswick Code of Professional Conduct, compels them to.

42.

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

28

Appellant files the documents required in accordance with the Rules of Court. 43. The Appellant requests that this Court make such other order as may be just
in reflection of the following history established by the behavior of the Respondents Solicitor.

44.

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 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,

29

(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 selfrepresented appellant. We fix those costs at $750. There will be no order of costs in favor of Par Syndication Group Inc. 45. As referenced in Michaud v. Robertson, supra, that was an example of an occasion, the Court found it appropriate to award the self-represented Appellant an order of costs against the moving parties.

46.

The Rules of Court which the Solicitor for the Respondent has a history of non compliance with, are as follows:

30

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. (6) The time for filing and serving pleadings in a third party claim is prescribed in Rule 30. 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

31

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. 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; (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

32

a receipt or confirmation under paragraph (4).

47.

The history of the questionable professional conduct of the Solicitor for the Respondent (in this matter) as it relates to the Appellant is as follows: Solicitor and Respondents questionable conduct history:

48.

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 (Respondent in this matter) 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. Appellant Andre Murray alleges that Betty Rose Danielski (Respondent in this matter) has evaded Service attempts by not responding to the Appellants (Plaintiff in that matter) attempts at Service, to the last know place of residence of the Defendant, Betty Rose Danielski, (Respondent in this matter) in Toronto Ontario, according to Rules of Court 27.03, Service of Pleadings and pursuant to Rules of Court, 18.03. Please note: Appellant Andre Murray (Plaintiff in that matter) was forced to commission a professional process server as all other means of service had been exhausted, further, as it became evident to Appellant Andre Murray (Plaintiff in that matter) 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;

33

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; 49. The, as mentioned above, unsuccessful Service attempts, caused the Appellant 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 50. 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 in that matter Andre Murray (Appellant in this

34

matter) 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 Process Server George Mallai caused subsequent attempts and revealed a significant change in apparent attitude of Betty Rose Danielski as a contingency Service attempt, sent UPS registered Mail, by Plaintiff now Appellant 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 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. 51. Subsequent to service of the here within above listed Court documents served upon Defendant in that matter Betty Rose Danielski, did not receive service of the Defendants Notice of Intent to Defend, or Demand for Particulars, at any time. I did not receive a phone call, email, regular post mail or registered mail regarding the here within subject. I, Plaintiff Andre Murray, am unaware of any in attempt of personal Service upon myself and or registered mail attempts by the Defendant (Respondent in this matter) of the above mentioned Defendants Notice of Intent to Defend, or Demand for Particulars. 52. The first time the Appellant, became aware of the Defendant Betty Rose Danielski having retained the services of Solicitor Thomas Christie when the Plaintiff Andre Murray (Appellant in this matter) Searched the Court

35

File (Court File Number: F/C/104/09) in preparation for filing and serving of the Plaintiff Andre Murray Motion for a Continuance of the Mechanics Lien Action, consequentially caused by the Royal Bank of Canadas refusal to Defendant Andre Murrays many requests to be granted access to 29 Marshall Street, Fredericton, so that Court documents could be retrieved by the Plaintiff, which were essential and indispensable necessary to move the (Court File Number: F/C/104/09) Mechanics Lien Action along to discovery. 53. 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 (Page 42 of the Appeal Book) and supporting Affidavit (Page 45 of the Appeal Book) 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. 54. The affidavit (Page 45 of the Appeal Book) 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 prohibiting the forward movement of the subject action thus far and the reasons necessary for the requested Order for a continuance of the Mechanics Lien Action. Communication The Plaintiff received no reply by phone, email, regular post letter, registered mail, or other wise any form of communication regarding the here within subject matter from the Defendant and Respondent in this matter.

36

55.

The Plaintiff, on the 31st day of May, 2010 served Solicitor for Defendant BETTY ROSE DANIELSKI, E. Thomas Christie, QC with the Amended Notice of Motion (Page 58 of the Appeal Book) and supporting Affidavit 2 (Page 61 of the Appeal Book) 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.

56.

The Plaintiff, on the 31st day of May, 2010 served Solicitor for Defendant E. Thomas Christie, QC with the Plaintiffs letter (Page 106 of the Appeal Book) 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 (Respondent in this matter).

57.

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 (Page 100 of the Appeal Book) 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.

58.

No response was received to the above mentioned three separate facsimiles, sent the 31st day of May, 2010, by the Plaintiff furthermore,

37

never received a reply by phone, email, regular post letter, registered mail letter or other wise any form of communication know to the Plaintiff.

59.

Fri, Jun 4, 2010 at 3:40 PM was the first time Plaintiff Andre Murray received an e-mail from Solicitor Thomas Christie. Please see TAB 9, page 36, EXHIBIT BB of the Appellants Record on Motion

60.

The Plaintiff Andre Murray replied to the above mentioned email correspondence of Fri, Jun 4, 2010 at 3:40 PM, 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.

61.

Further to that point, in the same two above mentioned letters, the Plaintiff Andre Murray requested of the Solicitor Thomas Christie for the

38

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 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. 62. The here within above mentioned two Jun 7, 2010 e-mails where never to the Appellants knowledge replied to. Please see TAB 10, page 37, EXHIBIT CC of the Appellants Record on Motion.

63.

The Appellant Andre Murray, received a series of e-mails 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 Respondent must be provided with a copy of the Transcript from the June 10, 2010 Hearing. The following position of Thomas Christie was

39

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.

64.

Next, Appellant Andre Murray, was told by Solicitor Thomas Christie that the Appellant must serve any amended pleading upon him at a date earlier than the Rules of Court dictate because of his previously scheduled vacation of Solicitor Thomas Christie.

65.

Please see TAB 11, page 39, EXHIBIT DD of the Appellants Record on Motion to view a copy, of the July 19, to July 22, 2010, e-mails

66.

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)

67.

To which Solicitor Thomas Christie did not confirm receiving the same Fax.

40

68.

Further in the same e-mail the Plaintiff Andre Murray requested to be provided with the estimated time Solicitor Thomas Christie required for the Respondents 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'.

69.

Furthermore in a follow up email 9 minutes after sending the first September 2, 2010 email to Solicitor Thomas Christie the Appellant asked the question of the Respondent as follows: 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!?

70.

The Solicitor Thomas Christie for the Respondent delayed 5 days, and finally on September 7, 2010 one of the Appellants September 2, 2010 e-mails of was replied to, but not the other email concerning the very peculiar underlined name of Betty Rose Danielski the Respondent. The Appellant 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 Appellant in this regard.

71.

Please see TAB 12, page 44, EXHIBIT EE of the Appellants Record on Motion to view a copy, of the September 2, 2010, to September 7, 2010, e-mails.

72.

The Appellant was never served with any affidavit of Betty Rose Danielski, prior to the June 10, 2010, Court of Queens Bench hearing and

41

was not given the opportunity to protest the reference to or inclusion of such a document at the subject June 10, 2010 Hearing before the learned Trial Judge.

73.

Subsequently, the Appellant provided the Respondent 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 Respondent as he made it known that he desires the Appellant must include (under threat of lack of performance) documents to his likening. Solicitor Thomas Christie protested the absence of certain Documents. The Solicitor for the Respondent did not stop with unpleasant email correspondence between himself and sent to the Appellant. Nevertheless, the Solicitor continued to purue this penchant until he was actually speaking to the Clerks at Court of Appeal Office attempting to persuade them that Appellant Andre Murray must now provide a supplementary Appeal Book etcetera. When the Appellant responsibly investigated the matter further, it was found that the inclusion of any material for the appeal was to the discretion of the Appellant and not in fact necessary to satisfy the Solicitor for the Respondent as had been postured by the Solicitor for the Respondent.

74.

The Solicitor for the Respondent did not Process Serve the Respondents Submission upon the Appellant within the prescribed time allowable by Rules of Court time limits, in this case October 20, 2010. The Solicitor for the Respondent had been placed on NOTICE Mon, Jun 7, 2010, by email, please see TAB 10, page 37, EXHIBIT CC which is quoted below:

42

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.

75.

Despite the here within above Jun 7, 2010, notice, the Appellant was not served October 20, 2010, with the Respondents Submission. At 2:00 PM on October 20, 2010, Appellant Andre Murray sincerely telephoned Client Services of the Court of Appeal (several times) October 20, 2010, enquiring after the Respondents Submission. I Andre Murray was told that the Respondents Submission had not yet been filed.

76.

October 20, 2010, Appellant Andre Murray telephoned the Office of the Solicitor for the Respondent, several times, but was unsuccessful at reaching the Solicitor for the Respondent.

77.

On Thursday, October 21, 2010, Appellant Andre Murray again telephoned the Office of the Solicitor for the Respondent, several times, but was unsuccessful at reaching the Solicitor for the Respondent.

78.

October 22, 2010, Appellant Andre Murray retrieved a telephone message from Court of Appeal Client Services, the message conveyed that Solicitor for the Respondent had indeed filed a Respondents Submission, approximately 4 pm October 20, 2010, and claimed to have e-mailed a copy of the document to the Appellant, although, the Registrar

43

Micheal Bray confirmed that the Service by email was not in fact considered Service on a non solicitor according to the Rules of Court.

79.

On Friday, October 22, 2010, at approximately 8:30 AM, Appellant Andre Murray telephoned the Office of the Solicitor for the Respondent, and did reach the Solicitor Thomas Christie for the Respondent. Appellant Andre Murray verbalized that the Appellant had not yet received a copy of the Respondents Submission, furthermore, confirmed that the Appellant must be served according to the Rules of Court. The Solicitor for the Respondent 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 Appellant Andre Murray should attend his Office Mail box on Monday (3 days later) at which time the Respondents Submission would be available. The Respondents Solicitor protested that, Appellant should not wish to wait until Monday. Again, offered to leave a copy in the mail box of his office on Monday for me to pick up. The Appellant stated that, the mail box offer would not suffice and wished to have a copy sent to me rightway, and Appellant 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 and instead, the Appellant was offered Service by facsimile or e-mail of the document. The Appellant informed the Solicitor for the Respondent that e-mail and facsimile is not considered service, upon a non solicitor, according to the rules of Court. Thomas Christie persisted inquiring if my e-mail address was the same as the court document indicated. Which, the Appellant indicated that the Appellant did not wish a copy sent by email

44

because that was is not considered service according to the Rules of Court. However, the Appellant was told that a copy was and or would be sent as a courtesy and would not be considered service. The Appellant stated, that, the way Appellant already indicated the Appellant wished to be served was by registered mail and was told the document would be mailed but not given a time frame by which that would happen, and the Solicitor for the Respondent, quickly ended the conversation, stating that other matters where pressing.

80.

On October 22, 2010, immediately, following a telephone conversation with the Solicitor for the Respondent, Appellant Andre Murray corresponded by electronic facsimile a letter to the Solicitor for the Respondent, confirming my position, further, my requirements regarding the matter of Court Document Service upon the Appellant.

81.

Please see TAB 10, page 37, EXHIBIT FF which is a copy, of the October 22, 2010, the here within above mentioned facsimile correspondence letter to the Office of the Solicitor for the Respondent.

82.

On Monday, October 25, 2010 Appellant Andre Murray, received an envelope in my mail box, which had the return address of the Office of the Solicitor for the Respondent, 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 required no signature, contrary to the Rules of Court 18.03 and despite the request, as mentioned earlier here within above, made to the Solicitor for the Respondent, who was placed on notice Mon, Jun 7, 2010, by

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email, please see Please see TAB 10, page 37, EXHIBIT CC. The Appellant offers that the Respondents Submission document was received by the Appellant 5 days late, according to the rules of court, and still had not been properly served according to the rules of Court. Please see TAB 14, page 49, EXHIBIT GG a copy of the subject envelope. Costs The following, regarding the question of Costs, has been provided the Honorable Court of Appeal that when time to evaluate the question of Awarding Costs this Honorable Court may have this accounting of the Appellants experience in this matter.

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PART IV ORDERS SOUGHT 83. Under the Rules of Court, 62.21 Powers of Court of Appeal To Draw
Inferences and Make Decisions and regarding Further Evidence Rule

62.21(2) (b), Rule 62.21(2) (c), and Rule 62.21(3) (b) that this Court may adduce new evidence on the appeal, 84. Under Rule 62.24 Failure to Comply with Rule and Rule 62.24(1) and 62.24(1) (c) of the Rules of Court for an order that the Respondent pay costs of the within Motion and the costs of the Appeal forthwith, for dilatory practice and non-compliance with Rule 62.20 Filing and Service
of Respondents Submission. Under that rule, the Respondent should have, according to the Rules of Court (b) serve a copy of the Respondents Submission upon the Appellant, not later than the 20th day of October, 2010, but did not.

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

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

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SCHEDULE A - LIST OF AUTHORITIES A list of authorities in the order referred to in the Submission; and

1. Reference: In Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) Justice RICHARD J.A. listed the criteria for the reception of new evidence on appeal; (may it please the Court; at paragraph 16) url link is provided below: http://www.canlii.org/en/nb/nbca/doc/2010/2010nbca55/2010nbca55.ht ml

2. Reference: In Ryan v. Law Society of New Brunswick, 2000 CanLII 17232 (NB C.A.) Justice Robichaud, JJ.A. stated, regarding when this Court should permit further evidence under Rule 62.21(2), (may it please the Court; at page 8 to page 13,) url link is provided below: http://www.canlii.org/en/nb/nbca/doc/2000/2000canlii17232/2000canlii 17232.html

3. Reference: In Munn v. Rust, 2006 NBCA 87 (CanLII) Justice LARLEE, J.A stated that one has a right to be heard on an issue before the Court, and procedural fairness required the motion judge to hear them; (may it please the Court; at paragraph 13 ,) url link is provided below:: http://www.canlii.org/en/nb/nbca/doc/2006/2006nbca87/2006nbca87.ht ml

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4. Reference: R. v. La, [1997] 2 S.C.R. 680, LHeureux-Dub J. examines disclosure, as a process, which is a necessary and important feature of the Canadian legal landscape, (may it please the Court; at paragraph 36) url link is provided below:: http://www.canlii.org/en/ca/scc/doc/1997/1997canlii309/1997canlii309. html

5. 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

6. 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 7. 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

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SCHEDULE B TEXT OF RELEVANT PROVISIONS OF STATUTES OR REGULATIONS 62.21 Powers of Court of Appeal To Draw Inferences and Make Decisions (1) The Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. Further Evidence (2) The Court of Appeal or a judge thereof may receive evidence (a) on interlocutory applications, (b) as to matters which have occurred after the date of the order or decision appealed from, and (c) on special grounds, upon any question of fact. 62.20 Filing and Service of Respondents Submission Not later than the 20th day of the month preceding the month in which an appeal is eligible to be heard, each respondent shall (a) subject to Rule 62.20.2, file the original and 4 copies of the Respondents Submission with the Registrar, and (b) serve a copy of the Respondents Submission upon each of the parties to the appeal. 62.24 (c) make such other order as may be just including an order for payment of costs forthwith. 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

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(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. 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. (6) The time for filing and serving pleadings in a third party claim is prescribed in Rule 30. 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

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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. 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

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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). 18.07.1 Service by Electronic Mail (1) Where service of a document on a solicitor is authorized under Rule 18.03(2) or where service of a document on the solicitor of record is authorized or required by these rules, the document may also be served by attaching a copy of the document to an e-mail message sent to the solicitors e-mail address in accordance with paragraph (2). Service under this paragraph is effective only if the solicitor being served provides by e-mail to the sender an acceptance of service and the date of the acceptance, and where the e-mail acceptance is received between 4 p.m. and midnight, service shall be deemed to have been made on the following day. (2) The e-mail message to which a document served under paragraph (1) is attached shall include: (a) the senders name, address, telephone number, fax number and e-mail address; (b) the date and time of transmission; (c) the name and telephone number of a person to contact in the event of transmission problems. The Law Society of New Brunswick Code of Professional Conduct

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CODE OF PROFESSIONAL CONDUCT CHAPTER FIFTEEN COLLEAGUES CHAPTER 15 RULE The lawyer shall practise good faith, courtesy and collegiality in all contacts 1 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 be prejudiced materially by agreeing to the accommdation . (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 17 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 .

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