Court File Number: F/C/45/11 IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON

BETWEEN: ANDR MURRAY Plaintiff, -andTHE CITY OF FREDERICTON, and others

Defendants, _______________________________________________________ Pre Hearing Brief Filed by Plaintiff ANDRE MURRAY In response to 3 separate NOTICE OF MOTION Motion 1 - Filed by Defendants THE CITY OF FREDERICTON, et al. Motion 2 - Filed by Defendants THE CITY OF FREDERICTON, et al. Motion 3 - Filed by Defendants Neil Rodgers and Trina Rodgers Scheduled to be heard January 19, 2012. ________________________________________________________ Andr Murray Plaintiff Self Represented 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Leanne Murray Associate with Mcinnes Cooper, Barker House, Suite 600 570 Queen Street PO Box 610 Fredericton NB E3B 5A6 tel +1 (506) 458 1624 fax +1 (506) 458 9903 cell +1 (506) 470 6696 Leanne Murray Solicitor for The City of Fredericton, Fredericton Police Force. Chief of Police Barry MacKnight, Sergeant Myers, Constable Mike Fox, Constable Patrick Small, Constable Nancy Rideout, Constable Debbie Stafford, Constable Michael Saunders Neil Rodgers Self Represented 15 Fisher Ave Fredericton, NB E3A 4J1

Trina Rodgers Self Represented 15 Fisher Ave Fredericton, NB E3A 4J1

Plaintiffs Pre Trial Brief Part I index Page Part I An index of the contents;_____________________________________ i Part II A concise statement of all relevant facts with such references to the evidence as may be necessary;___________________ 1 Part III A concise statement of the argument, law, and authorities relied upon; Introduction____________________________________________________ 5 Inherent Jurisdiction_____________________________________________8 Rule 1.03 Interpretation__________________________________________10 Rule 2.01, Rule 2.02 and Rule 3.02_________________________________ 13 Striking Pleadings_______________________________________________ 26 Rules 22.04(3), Rules 23.01 and Rules 23.02__________________________28 Rule 22 SUMMARY JUDGMENT_________________________________ 28 Rule 23 ________________________________________________________ 30 Rule 23.01(a)____________________________________________________31 Failing to disclose a reasonable cause of action _______________________34 Rule 23.01(b)___________________________________________________ 37 Rule 27.09 ______________________________________________________48 Rules 27.10 _____________________________________________________62 Limitation of Actions Act (S.N.B. 2009, c. L-8.5)_____________________ 67 Equity________________________________________________________ 70 Cost Orders in favor of self-represented litigants ____________________ 79

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Part II A concise statement of all relevant facts with such references to the evidence as may be necessary;

1.

May 7, 2008, I Plaintiff Andr Murray was travelling by bicycle within THE

CITY OF FREDERICTON was intercepted / accosted by several members of FREDERICTON POLICE FORCE who, without warning physically attacked me, thereby, inflicting significant injuries upon me during as I was forced to endure a FREDERICTON POLICE FORCE arrest procedure.

2.

3:34 PM May 5, 2009, I Andr Murray did file a complaint with the NEW

BRUNSWICK POLICE COMMISSION against members of FREDERICTON POLICE FORCE regarding the May 7, 2008 incident,.

3.

4:13 PM May 5, 2009 I Andr Murray did receive from Jocelyn (Josh) Ouellette

Executive Director (as he then was) of The NEW BRUNSWICK POLICE COMMISSION an acknowledgement of receipt of my subject 3:34 PM May 5, 2009 correspondence regarding my complaint against members of FREDERICTON POLICE FORCE, a incident occurring May 7, 2008.

4.

June 16, 2009 I Andr Murray did receive an e-mail correspondence reply from

of the Office of Professional Standards of FREDERICTON POLICE FORCE, signed by S/Sgt. Daniel R. Copp therefore, acknowledging receipt of my complaint of May 7, 2008.

5.

September 29, 2009, Chief of Police Barry MacKnight, did write a letter,

addressed to me Dated, September 29, 2009 thereby, notifying me Andr Murray of his decision to summarily dismiss my complaint, re: FREDERICTON POLICE FORCE File number, (FPF File 09- 10302) regarding Plaintiff Andr Murrays complaint, against FREDERICTON POLICE FORCE , regarding the May 7, 2008 incident.

6.

September 27, 2010, I Andr Murray, pursuant to Right to Information and

Protection of Privacy Act, S.N.B. 2009, c. R-10.6 did apply for correspondence and other documents, which may reveal other possible motivations for the outrageously violent behavior directed at myperson Andre Murray by members of FREDERICTON POLICE FORCE which I verily believe included the presence of my neighbor Trina Rodgers, as a witness therefore, involved in the subject incident of May 7, 2008.

7.

November 5, 2010, I Andre Murray, received a letter from THE NEW

BRUNSWICK POLICE COMMISSION (Police Commission file number 2010RTIPPA-02), which inter alia read After seeking third party intervention from FREDERICTON POLICE FORCE , we are partially granting access to the requested records. The letter indicated that THE NEW BRUNSWICK POLICE COMMISSION would be disclosing a portion of the records requested I bring this honorable Courts attention to the time frame of November 5, 2010 further noting that contrary to FREDERICTON POLICE FORCE taking the position that they had no knowledge of this matter of a pending legal nature, however I contend that at this noted time of November 2010, or thereabouts we can reasonably be confident in saying that FREDERICTON POLICE FORCE were fully advised and fully aware of the circumstances which regreably is contrary to the position FREDERICTON POLICE FORCE maintains throughout much of their defense o this matter.

8.

December 9, 2010, I Andr Murray did receive a reply correspondence from

THE NEW BRUNSWICK POLICE COMMISSION, stating inter alia that THE NEW BRUNSWICK POLICE COMMISSION in spite my requests, as made, pursuant to RTIPPA subsequently assigned Police Commission file number 2010-RTIPPA-02 THE NEW BRUNSWICK POLICE COMMISSION was/is and or will be declining me full access to documents as had requested which are in their possession, moreover, documents which are, specific to this herein subject matter, despite the obvious significance in particular an Appendix C which consists of the investigation report prepared by FREDERICTON POLICE FORCE and copy provided to THE NEW BRUNSWICK POLICE COMMISSION this subject Appendix C I was denied access.

9.

On January 10, 2011, I Andre Murray did file with Court of Queenss Bench

Client Services FORM 1 REFERRAL, Dated January 10, 2011, regarding full disclosure of information related to the subject May 7, 2008 Police incident.

10.

January 13, 2011, THE NEW BRUNSWICK POLICE COMMISSION finally

did make available the above mentioned subject Appendix C documents except the documents are heavily redacted to the point of non sense, these were requested by Andre Murray pursuant to NEW BRUNSWICK POLICE COMMISSION File: 2110 C- 09- 09 further, NEW BRUNSWICK POLICE COMMISSION File: 2010 RTIPPA- 02.

11.

The partial disclosure January 13, 2011, of Appendix C as herein mentioned

above represents the first time since the victim/Plaintiff obtained real evidence of wrongdoing that the Plaintiff in this matter was finally able to ascertain that a conspiracy of sorts must be occurring therefore explaining the brutal altercation with City Police and at the very least reveals that FREDERICTON POLICE FORCE were called by a person who gave a description of someone matching the Plaintiffs description therefore the caller alleged Andre Murray to be engaged in some illegal activity and that subject witness/informer telephone caller appears to be the actual reason why the Plaintiff was initially accosted May 7, 2008 or at least this is what we are left to believe considering the 95% redaction we are not left with much else to determine . Filing Action - Court File Number: F/C/45/11 12. I Andre Murray March, 4, 2011 did file a NOTICE OF ACTION WITH

STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011 Court File Number: F/C/45/11 with the Court Client Services Fredericton New Brunswick, this Action was specific to the March 5, 2009 incident. If one considers the March 5, 2009 incident independently, filing of subject Action was within the general limitations period according Limitation of Actions Act (S.N.B. 2009, c. L-8.5), section 5(1).

13.

After filing the March, 4, 2011 a NOTICE OF ACTION WITH STATEMENT

OF CLAIM ATTACHED (FORM 16A), I Andre Murray did reasonably attempt to acquire, further information regarding both May 7, 2008 and March 5, 2009 incidents, in furtherance of this goal, I did endeavor to have heard, two referrals to the Court of Queens Bench, the matter of a referral was rescheduled several times by the lawyer representing the NEW BRUNSWICK POLICE COMMISSION, until finally subject matter was heard August 11, 2011, regarding both Court File Numbers. F/M/1/11 and F/M/22/11. The decision is still pending.

14.

I Andre Murray did draft an Amended NOTICE OF ACTION WITH

STATEMENT OF CLAIM ATTACHED (FORM 16A), to include the May 7, 2008 Police incident therefore added as Defendants, parties who I for the first time firmly believed or has cause to believe are necessary to be included, for a just determination of the issues. I used the opportunity to edit the document, so as to be easily read and attempted to most accurately express the Plaintiffs Claims to the pleasure of this Honorable Court.. I was not ready to File the Amended Claim, when it became time to serve the NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011. 15. At 3:55 PM on the 2nd day, of September, 2011, I Andr Murray, served, Defendants: THE CITY OF FREDERICTON inter alia, with a NOTICE OF ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011, Court File Number: F/C/45/11 16. September, 8, 2011, I Andre Murray did file (as noted above within 7 days of service of original claim) a AMENDED NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8, 2011, Court File Number: F/C/45/11 with Client Services for Court of Queens Bench, Fredericton New Brunswick; 17. At 2:09 PM on the 9th day, of September, 2011, I Andr Murray, served, Defendants THE CITY OF FREDERICTON inter alia; 18. At 6:30 PM on the 15th day, of September, 2011, , I Andr Murray, served, Defendant Neil Rodgers; 19. At 6:30 PM, on the 15th day, of September, 2011, served, Defendant Trina Rodgers;

20. At 3:40 PM, on the 21st day, of September, 2011, I Andr Murray, again served, Defendants THE CITY OF FREDERICTON and others; 21. I Andre Murray verily believed, resulting from discussions on previous occasions

with City Solicitor Michelle Brzak and Staff Sergeant Danny Copp who had advised me, that it was unnecessary to serve all the named members of FREDERICTON POLICE FORCE that reasonably law of agency applied in this instance, such that, Court document Process Service upon THE CITY OF FREDERICTON must therefore be considered service upon all of its agents. Because I am self represented and in as a cautionary step I did Endeavour to served each and every named Defendant to this Action Court File Number: F/C/45/11.

22.

September 27, 2011 at 1:30 PM I Andre Murray did attend FREDERICTON

POLICE FORCE Office at 311 Queen Street, Fredericton, N.B. E3B 1B1 in an attempt to process serve the subject Court documents upon the individual name Police Force member Defendants. D. S. Hughson claimed arrangements for service would be

unavailable at that time, even though some of the named Police Officers were supposed to be in the very building at the time of inquiry. I was asked to call Lori Daniels, of Fredericton Legal services for further information.

23.

September 27, 2011 at 2:00 PM I called the number which I was given by D. S.

Hughson and spoke to Lori Daniels who directed me to call the secretary of the Chief of Police Tanya Ramsay to make an appointment and at that time I could affect Service. Further I was instructed to call ahead to make appointments to serve the other officers so as to effect timely and efficient service upon them.

24.

In attempting to serve the various members of FREDERICTON POLICE FORCE

September 28, 2011 I Andre Murray did e-mail Tanya Ramsay Assistant to Barry MacKnight Chief of Police Fredericton Police Force at email address (Tanya.ramsay@fredericton.ca) and further, called the office several times to expedite matters. I indicated to Tanya Ramsay, that I have been advised by the City solicitors

office, that Tanya Ramsay would facilitate me, to meet with and or make appointments, to meet with certain members of Fredericton Police Force at Fredericton City Police Force office, located at 311 Queen Street, Fredericton N.B. E3B 1B1. Namely Chief of Police Barry MacKnight, Sergeant Matt Myers, Constable Mike Fox, Constable Patrick Small, Constable Nancy Rideout, Constable Debbie Stafford, Constable Michael Saunders. I Andre Murray advised Tanya Ramsay that I have documents of a legal nature which are time sensitive and require immediate Service. 25. At 10:00am on the 3rd day, of October, 2011, I Andr Murray, served, Defendant Chief of Police Barry MacKnight; 26. 1:00pm, the 6th day, of October, 2011,, I Andr Murray, served, Defendant Constable Patrick Small; 27. 10:00 am, the 7th day, of October, 2011, I Andr Murray, served, Defendant Sergeant Matt Myers; 28. 10:00 am, the 7th day, of October, 2011, I Andr Murray, served, Defendant Constable Debbie Stafford; 29. 11:00 am, the 9th day, of October, 2011, I Andr Murray, served, Defendant Constable Mike Fox; 30. 10:20 am, the 11th day, of October, 2011, I Andr Murray, served, Defendant Constable Nancy Rideout; Part III A concise statement of the argument, law, and authorities relied upon;

31. The Defendants have relied upon the following Rules of Court in their various filed Notice of Motion 1.03(2), 3.02, 22.04(3), 23.01, 23.02, 27.06, 27.09, 27.10, 37, 39 and Rule 59 of the Rules of Court 32. The Plaintiff does claim that as a general principle, 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. 33. The Claim filed by Plaintiff Andre Murray is in fact within the time limit

extensions and exception as prescribed by Limitation of Actions Act, therefore the claims

of Plaintiff Andre Murray should not be bared by erroneous claims and a misinterpretation of the Act. The Claims by Andr Murray are in fact within limitations periods prescribed by the limitations of actions Act.

34.

The Court should grant leave to amended the claims to compensate for any valid

Drafting deficiencies,

35.

The Plaintiffs Claim does disclose a reasonable cause of Action, leave to amend

the claim, should be granted if necessary to overcome some drafting deficiency 36. Rules of Court: Rule 27.10(1) Does provide instruction, which should govern

the Courts actions, that 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.

37.

Plaintiff Andre Murray believes that, when the drafters of the Rules of Court did

use the word may, the intention was to express that the Court is must (required to) at any stage of an action, grant leave to amend any pleading on such terms as may be just and all such amendments shall (Has a duty to; more broadly, is required to) be made which are necessary for the purpose of determining the real questions in issue.

38.

Black's Law Dictionary (8th ed. 2004), at Page 3106 provides the following may, vb. 1. To be permitted to <the plaintiff may close>. [Cases: Statutes 227. C.J.S. Statutes 362369.] 2. To be a possibility <we may win on appeal>. Cf. CAN. 3. Loosely, is required to; shall; must <if two or more defendants are jointly indicted, any defendant who so requests may be tried separately>. In dozens of cases, courts have held may to be synonymous with shall or must, usu. in an effort to effectuate legislative intent.

definition of MAY as follows:

39.

Black's Law Dictionary (8th ed. 2004), at Page 4288 provides the following

definition of SHALL as follows:

shall,vb.1. Has a duty to; more broadly, is required to <the requester shall send notice><notice shall be sent>. This is the mandatory sense that drafters typically intend and that courts typically uphold. [Cases: Statutes 227. C.J.S. Statutes 362369.] 2. Should (as often interpreted by courts) <all claimants shall request mediation>. 3. May <no person shall enter the building without first signing the roster>. When a negative word such as not or no precedes shall (as in the example in angle brackets), the word shall often means may. What is being negated is permission, not a requirement. 4. Will (as a future-tense verb) <the corporation shall then have a period of 30 days to object>. 5. Is entitled to <the secretary shall be reimbursed for all expenses>. Only sense 1 is acceptable under strict standards of drafting. 40. Pursuant to Rules of Court Rule 27.10(1) It would be up to the Defendants to

provide proof of claim that prejudice will result which cannot be compensated for by costs or an adjournment.

41.

Pursuant to Rules of Court Rule 27.10(1) the Court is provided instruction that

all such amendments shall (Has a duty to; more broadly, is required to) be made which are necessary for the purpose of determining the real questions in issue.

42.

Rules of Court Rule 27.10(2)(a) Does allow that a party may amend his pleading

without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action. Those portions of Plaintiff Andre Murrays claims, which do not relate to a addition of a party to the action do not require leave of the Court, because Plaintiff did amend those claims before the close of the pleadings. Because of the substantial drafting changes from the original March 4, 2011 claim, to the Amended Claim dated September 8, 2011, most of the claim was underlined, so as to express the substantial changes to the Claim.

43.

Rules of Court Rule 27.10(2)(b) does allow that a party may amend his pleading

on filing the consent of all parties and, where a person is to be added or substituted as a party, the persons consent. Plaintiff Andre Murray did request consent of all the Parties, only THE CITY OF FREDERICTON and FREDERICTON POLICE FORCE did

provide that consent. Through the rule of agency the others members of FREDRICTON POLICE FORCE did provide consent. Defendant Neil Rodgers and Defendant Trina Rodgers did not prove consent.

44.

Rules of Court Rule 27.10(2)(c) Does allow that a party may amend his

pleading, with leave of the court, which does not stipulate that Leave of the court must be provided beforehand. It is erroneous for the Defendants to claim that consent must be provided before a Party may amend his pleadings, especially under these circumstances, such that the subject Amendments were made within 7 days of service of the Original Claim upon THE CITY OF FREDERICTON and FREDERICTON POLICE FORCE, and every other party was served both Original Claim dated March 4, 2011 and the Amended Claim dated September 8, 2011. The Rules of Court allow that the Court may grant leave to amend after, service of the Amended Pleading upon the Parties. Inherent Jurisdiction The doctrine of inherent jurisdiction operates to ensure that there will always be

45.

a court which has the power to vindicate a legal right independent of any statutory grant. The Court which benefits from the inherent jurisdiction is the Court of general jurisdiction, namely, the Provincial Superior Court. The legitimate proposition is that the institutional and constitutional position of Provincial Superior Courts, warrants the grant to them of a residual jurisdiction over all Provincial matters where there is gap in statutory grants of jurisdiction. In this case regarding the evoked Rules of Court and the limitations of Action Act, we do not read or find jurisdictional gaps, the rules of Court and the subject Act, clearly provide the vehicle for this Court to provide the relief sought, therefore there is no application of the inherent jurisdiction in this case. In R. v. Caron, 2011 SCC 5, [2011] 1 SCR 78, the supreme Court did answer that question, in the header of that decision: Indeed, the superior court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. The fundamental purpose (and limit) on judicial intervention is to do only what is essential to avoid a serious injustice.

46.

Black's Law Dictionary (8th ed. 2004), at Page 996 provide the definition for contravene, vb.1. To violate or infringe; to defy 2. To come into conflict with; to be contrary to

CONTRAVENE as follows:

47.

The Court of Queens Bench may act on its inherent jurisdiction only when

those actions do not come into conflict with any statutory provision, in this case the inherent jurisdiction of the Court is superfluous and therefore inappropriate to evoke in these circumstances. 48. In MacMillan Bloedel Ltd. v. Simpson, [1995] 4 SCR 725, in the header of that

decision this Court did write regarding inherent jurisdiction as follows: Further, the inherent power of superior courts to regulate their process does not preclude elected bodies from enacting legislation affecting that process. The court's inherent powers exist to complement the statutory assignment of specific powers, not override or replace them. Courts must conform to the rule of law and, while they can exercise more power in the control of their process than is expressly provided by statute, they must generally abide by the dictates of the legislature. It follows that Parliament and the legislatures can legislate to limit and define the superior courts' inherent powers, including their powers over contempt, provided that the legislation is not otherwise unconstitutional. 49. In ONTARIO (ATTORNEY GENERAL) v. PEMBINA EXPLORATION CANADA LTD., [1989] 1 SCR 206 at paragraph 22 the Supreme Court of Canada did cite as follows: And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged. 50. The jurisprudence is clear, while Courts can exercise more power in the control of

their process than is expressly provided by statute, they must generally abide by the dictates of the legislature. To evoke inherent jurisdiction is inappropriate unless, there is a lack of jurisdiction otherwise, which was the express purpose of doctrine of inherent jurisdiction.

Rule 1.03 Interpretation

10

51.

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 New Brunswick, require the Court of Queens Bench Trial Division to apply the Rules of Court, for a determination of every proceeding on its merits.

52.

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.

53.

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. 54. 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.] 2. A preconceived judgment formed without a factual basis; a strong bias. [Cases: Judges 49. C.J.S. Judges 108.] prejudice,vb. prejudicial,adj. Prejudice is defined by Black's Law Dictionary (8th ed. 2004) , Page 3738 as

11

55.

The criteria for extending or abridging time limits have been addressed in

several decisions of the Court of Appeal of New Brunswick. It has been concisely stated in Bulmer-Woodard v. Bulmer 2006 CanLII 30456 (NB C.A.)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 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]

56.

Furthermore: the above case of Bulmer-Woodard v. Bulmer 2006, is regarding

an extension of time to serve the pleading, but should equally apply to an application for abridgement of time as well. There should equally be a endvour "to do justice in each particular case":. 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 UNJUST

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unjust, adj. Contrary to justice; not just.

57.

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>.

58.

The Merriam Webster Online Dictionary defines fair as an action marked by

impartiality and free from prejudice, or favoritism. Black's Law Dictionary defines fair as free of bias or prejudice and it would be most unfair and prejudicial to the Plaintiff, to not have Plaintiffs Action heard on its merits.

59.

Furthermore, regarding 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, it is my 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. 60. Black's Law Dictionary (8th ed. 2004) at Page 3136 May it please the Honorable 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>.

Court the defines merits as the following:

61.

Plaintiff requests that the 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. There is a need to protect against rigid compliance with the rules taking precedence over resolving the dispute and furthermore, securing a just and meritorious determination.

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62.

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 May it please the Honorable Court the found 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. 63. The word enjoins was of particular note to the Defendant, 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. 2. To prescribe, mandate, or strongly encourage 64. The Plaintiff should not be barred from presenting the Merits of this Action

because of alleged minor or erroneously claimed time limitations.

Rule 2.01, Rule 2.02 and Rule 3.02 65. Rule 2.01 and 2.02 of the Rules of Court are reproduced 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, 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. 66. The Plaintiff enthusiastically encourages the Honorable Court to consider that it

is in the interest of justice that the Court overlook any minor irregularity of non compliance with the Rules of Court, on the part of the Plaintiff. It is in the interest of Justice that the Court grant the Plaintiffs requested extensions of time pursuant to rule 3.02, on the Plaintiffs own Motion which is harmonious with Rules of Court Rule 2.01 and 2.02 so that the Plaintiffs, Amended Notice of Motion may be ruled on its merits.

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The Court should grant leave to amended the Plaintiffs claims to compensate for any valid Drafting deficiencies, The Plaintiffs Claim does disclose a reasonable cause of Action, therefore leave to amend the claim, should be granted if necessary to overcome some drafting deficiency. The principles of interpretation require that a flexible approach, rather than a strict one, be taken in interpreting procedural questions. Essentially, this Court is given a very wide discretion in deciding some of the numerous procedural questions that may arise during a hearing. In exercising this discretion, the judge must (is required to) respect the governing principles of interpretation, including in particular the principle set out in Rule 1.03(2). 67. In Chiasson v. Thbeau, 2009 NBCA 64 (CanLII) Justice M.E.L. Larlee, j.c.a.

stated the following regarding Rule 1.03(2), Rule 2.01 and Rule 3.02(1), at paragraph 9 11, as follows: [9] A strict interpretation of this rule would indeed suggest that in the case of a motion or application, the applicant may not file or serve any affidavit other than those attached to the Notice of Motion or Notice of Application, as the case may be. However, such an interpretation does not respect the principle set out in Rule 1.03(2), which stipulates that the Rules of Court shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. Moreover, Rule 2.01 provides that (in extraordinary circumstances, of course) [t]he court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. As for Rule 3.02(1), it allows a judge to extend the time prescribed by the rules of court. We are of the opinion that the principles that emerge from the rules can only lead to the conclusion that the application judge erred in law when he concluded that he did not have the power to admit additional affidavits. It was within the judges discretion to dispense with compliance with Rule 39.01(2) or again to extend the time prescribed to serve the additional affidavits that the applicant wanted to file. Since the decision to reject the additional affidavits was based on an error in law, it does not warrant the deference otherwise afforded to the exercise of discretionary power. In short, the judges error is such that we are justified in reversing his decision on appeal. The principles of interpretation require that a flexible approach, rather than a strict one, be taken in interpreting procedural

[10]

[11]

15

questions. Essentially, a trial judge is given a very wide discretion in deciding some of the numerous procedural questions that may arise during a hearing. In exercising this discretion, the judge must respect the governing principles of interpretation, including in particular the principle set out in Rule 1.03(2). 68. The Plaintiff requests that the Court, as stated above, in Chiasson v. Thbeau,

2009, supra, adhere to the principle set out in Rule 1.03(2), which stipulates that the Rules of Court shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. Moreover, Rule 2.01 provides that the Court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise, and over look, minor drafting errors or insignificant departures from the Rules of Court, so that the matter may be heard on its merits.

69.

Plaintiff Andre Murray, may it please the Honorable Court, reiterates, what was

stated above, in Chiasson v. Thbeau, 2009, Supra, that the principles of interpretation, require, that a flexible approach, rather than a strict one, be taken in interpreting procedural questions, nevertheless the procedural question posed of this Court is by the Defendants is: should the Court strike the Plaintiffs Original Statement of Claim and Amended Statement of claim (as requested by the Defendant in this matter) because of minor, departures from the rules of Court, in drafting documents, by a self represented litigant. 70. In Druet v. Druet, 2002 NBCA 88 (CanLII) The Honourable J. ERNEST

DRAPEAU, J.A., as he then was, stated the following regarding application of Rule 2.01, at paragraph 4 8, as follows: [4] ..Rule 2.01 reads 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.

16

Decision [5] In our view, there is every reason to apply Rules 2.02 and 2.03 to the case at hand. [6] We note that a counter-petition for spousal support is not an originating process, as defined by Rule 1.04, and conclude that Ms. Druets failure to advance her claim for spousal support by way of counter-petition is a procedural error that should be treated as a mere irregularity. In our view, that irregularity did not render the proceeding, namely the claim for spousal support, a nullity. Furthermore, it was in the interests of justice that Ms. Druets Answer be acted upon by the trial judge as if it were a counterpetition within the meaning of Rule 72.10..

71.

May it please the Honorable Court; 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 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 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 17

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"? 72. May it please the Honorable Court, a corresponding question, relative to the

matters, before this Court is referred to, as found mentioned, above therewithin the Court hearing of the matter of Juniberry Corp. v. Triathlon Leasing Inc, supra, further, in that matter, the granting of the Defendants request to this Court to Strike the Plaintiffs claims, both original and Amended, without leave to amend, would deprive the Plaintiff 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". Having the Plaintiffs claims struck completely should be considered as an action which cannot be compensated for by costs or an adjournment, further would deprive the Plaintiff of the claims which would have otherwise been available.

73.

The answer to the above question found in the above paragraph should be yes;

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 of the here within above provided substantive law, as illustrated within 18

Juniberry Corp. v. Triathlon Leasing Inc, supra, unless the application of the rules would result in a serious prejudice or injustice. Accordingly, the granting of amendments of pleadings are 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.

74.

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 extension of time for filing, service does not prejudice or work any injustice to either of the parties.

75.

In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A. LaVIGNE (Please

stated the following regarding granting an extension of time.; 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. 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.

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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 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

20

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 nonservice 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, 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

21

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. 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. 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.

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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.

76.

As stated above, in Agnew v. Knowlton, supra, may it please the Honorable

Court the Defendant believes 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 test which applies to the case before the Court now is as follows: If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. 77. The above mentioned Case is focused on granting a extension of time to serve a

Notice of Action and Statement of Claim. To see that justice is done, in this case the Court must grant the extension of time as requested by the Plaintiff, rather than strike the Plaintiffs claim, otherwise the Plaintiff will not have this matter heard before the Honorable Court. This Court may grant relief, to the Plaintiff which is by application of Rule 2.02 furthermore, which 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. Moreover, 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. Substantial injustice will occur if the Plaintiff does not receive a determination of the maters contained in the Motion before the Court on its merits.

78.

The Defendants were informed of the Plaintiffs intention to seek remedy

regarding the May 7, 2008 incident as well as the March 5, 2009 incidents through the various filed complaints and RTIPPA requests, all of which cause the subject Defendants to be contacted, regarding these issues.

79.

As stated in Chiarelli v. Weins, 2000 CanLII 3904 (ON C.A.) by Justice

LASKIN J.A. at paragraph 16, as follows:

23

[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. 80. The Plaintiff does claim and reiterate the statements by Justice LASKIN above

that prejudice that will defeat an extension of time for service, must be caused by the delay, therefore Prejudice to the defense that exists whether or not service is delayed, ordinarily, is not relevant on a motion to extend the time for service, such as in this case. The onus is on the Defendants to provide proof of claim of this prejudice that is cause by a minor delay in service. In interest of justice, as above then the writ should be renewed, in this case any necessary extension of time should be granted to the Plaintiff, so that that the Court may consider the Plaintiff claims to render a decision on its merits.

81.

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. 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:

24

...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 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

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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. [37] To summarize on this issue: 1) the plaintiff has a reasonable excuse for the delay in service;

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; 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. 82. As similarly stated above, it seems to the Plaintiff 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 before the Court either. 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 before the Court the defence, did not even complain that any of the subject FREDERICTON POLICE FORCE officer's notes have been destroyed, or any other claims of loss, of their ability to defend this action. FREDERICTON POLICE FORCE have not claimed that any records were

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destroyed under a local police policy. Thus, as far we are concerned the notes are unavailable to the defence, whether or not the statement of claim had been served on time or not.

83.

For the similar reasons as set out found therein above, in Ellis v. Callahan &

Camp Abegweit , supra, Plaintiff Andre Murray asserts that the Court will find the Plaintiff has demonstrated that extending the time limits set by the Rules of Court will not prejudice the Defendants. The subject Extension of Time, if necessary will advance the just resolution of the dispute and accordingly in the interest of Justice this Honorable Court will find, similarly to the Honorable Justice Benjamin B. Taylor decision that extending the requested time limits according to Rules of Court Rule 3.02 is most appropriate. Striking Pleadings 84. The object of permitting the striking out of a Statement of Claim is to get rid of

frivolous actions, including actions in which no reasonable cause of action is disclosed on the face of the pleadings.

85.

In using a substantive, in depth examination approach of the question as to

whether or not the Plaintiffs statement of claim in this case discloses a cause of action against the Defendant, the Court may hypothetically accept the allegations set out in the statement of claim as having been proven. If after making this assumption a Court finds that it is plain and obvious that the pleadings do not disclose a cause of action the claim may be struck out

86.

The common test that governs applications under Rule 23.01 (b), and Rule 22.01

(3) of the Rules of Court has always been and remains a simple one: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim or portions thereof discloses no reasonable cause of action?

87.

Is there is a defect in the statement of claim that can properly be characterized as a

"radical defect"? If it is plain and obvious that the action is certain to fail because it contains

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some such radical defect, then the relevant portions of the statement of claim may properly be struck out.

88.

To allow such an action to proceed, even although it was certain to fail, would be

to permit the defendant to be subject to scandalous, frivolous or vexatious action, and would therefore, amount to the very kind of abuse of the Court's process, that the Rules of Court Rule specifically Rule 23.01 (b), and Rule 22.01 (3) where meant to prevent.

89.

But, if there were a chance that the Plaintiffs claim might succeed, then the

Plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues of law and fact that might have to be addressed nor the potential for the Defendant to present a strong defence should prevent a Plaintiff from proceeding with his or her case. Provided that the Plaintiff can present a "substantive" case, consequentially, that case should be heard.

90.

Rule 27.09, provides for the striking out of pleadings, portions thereof or other

documents at any time, that may prejudice, embarrass or delay the fair trial of the action, furthermore, that which is scandalous, frivolous, vexatious, or otherwise is an abuse of the process of the court.

Rules 22.04(3), Rules 23.01 and Rules 23.02 91. The Defendants have reference and rely on the following Rules of Court, Rules 22.04, Rules 23.01 and Rules 23.02. 22.04 Disposition of Motion Where Only Issue is a Question of Law (3) Where the court is satisfied that the only issue is a question of law, the court may determine that question and grant judgment accordingly. 23.01 Where Available (1) The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court

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(a) for the determination prior to trial, of any question of law raised by a pleading in the action where the determination of that question may dispose of the action, shorten the trial, or result in a substantial saving of costs, (b) to strike out a pleading which does not disclose a reasonable cause of action or defence, or 23.02 Evidence Except with leave of the court, on applications under Rule 23.01(1), evidence shall not be admitted except (a) a transcript of a relevant examination, and (b) affidavits which are necessary to identify a document or prove its execution.

Rule 22 SUMMARY JUDGMENT 92. In Chen v. Chen-Ludlow, 2004 NBQB 261 (CanLII) Justice RIDEOUT, J.

granted a Summary Judgment in favor of the Defendants, against the Plaintiffs, because the Court determined that there was no merit to the action and the Statement of Claim does not disclose a reasonable cause of action. (May it please the Honorable Court, please see Paragraphs 18 through to and including paragraph 21 provided an examination of Rule 22), as follows: SUMMARY JUDGMENT [18] The leading case in this area of the law is Cannon v. Lange 1998 CanLII 12248 (NB C.A.), (1998), 203 N.B.R. (2d) 121 (C.A.). Drapeau, J.A., as he then was, commenting on the purposes of Rule 22 said at paragraphs 8 and 9: 8 The overarching purpose of Rule 22 extends beyond an early testing of the substantive merit of the action or defence: as with all the rules, it is to "secure the just, least expensive and most expeditious determination of [the] proceeding on its merits." (See Rule 1.03(2)). Rule 22 seeks to accomplish this purpose in several ways, some of which are too often overlooked. ... 9 The intent in permitting summary judgment is to rid innocent parties and the system not only of meritless actions, but also of frivolous claims or defences. The 29

claims and defences which are without merit render the proceedings cumbersome and are a source of unnecessary expense and delay. This Court has consistently urged motion judges not to be unduly timid where the circumstances demonstrate a clear absence of merit. (See RCL Operators Ltd. et al. v. National Bank of Canada et al. 1994 CanLII 4468 (NB C.A.), (1994), 144 N.B.R. (2d) 207 (C.A.), at 211, para. (6)).

[19] Drapeau, J.A. went on to say at paragraphs 17 to 19: 17 The wording of Rule 22.04 sets the standard at a high level. It provides that the court may grant judgment only where there is no merit to the defence or no merit to the claim, or part thereof. The wording leaves no room for anything but a very stringent test. Practical experience with the civil process inspired the trial lawyers and judges who drafted Rule 22.04 to choose its wording. The wording reflects their conviction that, except in clear cases, the best truth-finding device is a trial. 18 Stratton C.J.N.B., writing for a unanimous Court, articulated the test in the oft-quoted case of Ripulone v. Pontecorvo reflex, (1989), 104 N.B.R. (2d) 56 at p. 63. He held: [13] ... Summary judgment should be granted only when there is no reason for doubt as to what the judgment of the court should be if the matter proceeds to trial the moving party's case must be unanswerable.

19

This Court has been consistent in its application of the test. The Ripulone formula is faithful to the wording of Rule 22.04 and the spirit of Rule 22: I see no reason to change its language.

93.

Furthermore, regarding Rule 1.03(2) of the New Brunswick Rules of court, to

secure the just, least expensive and most expeditious determination of every proceeding on its merits. Plaintiff Andre Murray understands that Judgment on the merits, is a

30

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.

94.

The Defendants have erroneously claimed that the Plaintiff is barred by the

Limitation of Actions Act, which is not true. The exceptions to the two year general limitation periods allow the Plaintiff to file and serve the subject documents when the Plaintiff did file them. Further the Defendants have claimed that there is no merit to the Plaintiffs claims which may only be found after trial. The wording of the Rules of Court are clear, it reflects the conviction that, except in clear cases, the best truth-finding device is a trial. Summary judgment should be granted only when there is no reason for doubt as to what the judgment of the court should be if the matter proceeds to trial the moving party's case must be unanswerable. The matter before the Court is not one which the Court may dispose of on summary judgment.

Rule 23 DISPOSITION WITHOUT TRIAL RULE 23 DETERMINATION OF QUESTIONS BEFORE TRIAL 23.01 Where Available (1) The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court (a) for the determination prior to trial, of any question of law raised by a pleading in the action where the determination of that question may dispose of the action, shorten the trial, or result in a substantial saving of costs, (b) to strike out a pleading which does not disclose a reasonable cause of action or defence, or (c) for judgment on an admission of fact in the pleadings, in the examination of an adverse party, or in answer to a Request to Admit Facts; Rule 23.01(a) In Dostie v. Royal & Sunalliance Insurance Company of Canada, 2004 NBQB

95.

195 (CanLII), Justice J.A. Rginald Lger, stated regarding Rule 23.01(1)(a) (please see provided below, paragraph 4 through to and including paragraph 11), as follows:

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[4] On reviewing the motion as filed by the plaintiff, I note that the only possible basis for the motion under Rule 23 is that found at Rule 23.01(a). [5] Rule 23.01(a) reads as follows: (1) The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court (a) for the determination prior to trial, of any question of law raised by a pleading in the action where the determination of that question may dispose of the action, shorten the trial, or result in a substantial saving of costs, . . .

[6] The courts function under Rule 23.01(1)(a) is limited to determining a point of law raised by a pleading. [7] At paragraph 19, in Norris v. Lloyds of London (supra), Drapeau, J.A. set out the courts mandate in a motion under Rule 23.01(1)(a), as follows: As I read rule 23.01(1)(a), the courts function is limited to determining a point of law raised by a pleading. Its mandate is not to actually dispose of . . . the trial or to actually bring about a substantial saving of costs. If the potential for achieving any of these results exists, the court may exercise its discretion and determine the point of law. To state it otherwise, the possibility that the determination of a question of law may dispose of the action is a condition precedent to the exercise of discretion envisaged by rule 23.01(1)(a): the actual disposal of the action is not effected under it, a companion or follow-up motion being required. [8] Moreover, it is well established that in these cases, the pleadings must be liberally interpreted. [9] Pleadings are the basis of any motion under Rule 23.01(1)(a). [10] Under Rule 23.01(1)(a), the court must be satisfied, in exercising its discretion, that there is a possibility that the determination of a question of law raised by the pleadings may dispose of the action, shorten the trial, or result in a saving of costs. [11] In this case, I am satisfied that there is a question of law raised by the pleadings and that a determination of this point of law may dispose of the action. In my opinion, the Rule 23.01(1)(a) criteria have been met. Under Rule 23.01(1)(a), the court must be satisfied, in exercising its discretion, that there is a possibility that the determination of a question of law raised by the

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pleadings may dispose of the action, shorten the trial, or result in a saving of costs. 96. Regarding the claims that the Defendants were served outside the 2 year general

limitation period as prescribed by Limitation of Actions Act (S.N.B. 2009, c. L-8.5), that Act allows exceptions to the General limitation periods, as provided by section 5(2) as follows: 5(2)A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a) that the injury, loss or damage had occurred, (b) that the injury, loss or damage was caused by or contributed to by an act or omission, and (c) that the act or omission was that of the defendant. 97. Pursuant to section 5(2)(b) and (c) A claim is discovered on the day, on which

the claimant first knew or ought reasonably to have known that the injury, loss or damage was caused by or contributed to by an act or omission, and that the act or omission was that of the defendants. January 13, 2011, pursuant to a Right to Information and Protection of Privacy Act, request, NEW BRUNSWICK POLICE COMMISSION did partially make available documents as requested by Andre Murray (NEW BRUNSWICK POLICE COMMISSION File: 2110 C- 09- 09 further, NEW BRUNSWICK POLICE COMMISSION File: 2010 RTIPPA- 02). I Andre Murray, subsequently, having reviewed subject NEW BRUNSWICK POLICE COMMISSION File: (File: 2110 C- 0909 ) 2010 RTIPPA- 02, subject investigation report summary and conclusion revealed the cause of Applicant Andre Murrays battery and arrest resulted and caused by persons being obscured - the following is an exact excerpt: Investigative Summary blacked out, a blacked out has provided a statement that he observed a male closely matching the description of a suspect in some type of crime, as a result he contacted the police station, and Cst. Debbie Stafford attended the area and attempted to stop and identify the individual. 98. The partial disclosure did reveal that was called by a person who gave a

description of someone matching the Plaintiffs description, engaged in some undisclosed illegal activity which was the actual reason why the Plaintiff was accosted May 7, 2008.

33

Before this subject RTIPPA disclosure, I Andre Murray was never informed of the reason, members of FREDERICTON POLICE FORCE , had attended the Plaintiffs location was because of the herewithin mentioned phone call. This revelation connects the May 7, 2008 event to the March 5, 2008, because both, events were caused by an unnamed caller, making fraudulent representation to FREDERICTON POLICE FORCE , which was the causative event. The above mentioned Investigation summary was the evidence which caused Plaintiff Andre Murray to first know that the injuries suffered at the hands of FREDERICTON POLICE FORCE , were caused primarily by or contributed to by an act of the unnamed callers, sending FREDERICTON POLICE FORCE to the Plaintiffs location.

99.

The two year time calculation regarding the Limitations of Actions Act, did

begin counting at that time of January 13, 2011, regarding, discovery of the cause of the incident. Because both the March 5, 2009 and the May 7, 2008 incidents were caused by a unnamed caller, instructing FREDERICTON POLICE FORCE to attend Plaintiff Andre Murrays location, the two incidents are joined in cause. Based on this new time calculation Plaintiff Andre Murray did have until January 12, 2013 to file an Action, in this case Plaintiff Andre Murray chose to Amended existing Pleadings. Further, the Defendants were provided sufficient knowledge of the added claims, that the Defendants will not be prejudiced in defending against the added claim on the merits. The Defendants were made aware that the Plaintiff was seeking remedy, and pursuing these claims, by being contacted regarding investigations, into both may, 7, 2008 and March 5, 2009 incidents, conducted because of the Plaintiffs filed complaints regarding Police Conduct, further, the Defendants were contacted when the Plaintiff did make application for information pursuant to RTIPPA, the Defendants were contacted and asked if they would consent to disclosure of the information requested by the Plaintiff.

Failing to disclose a reasonable cause of action 100. In Centaur Products Inc. v. Finmac Lumber Ltd., 2005 MBQB 98 (CanLII) Master J.M. Cooper did address the matter of a motion to strike out a statement of claim

34

for failing to disclose a reasonable cause of action, from paragraph 10 through to as follows: [10] Centaurs counsel argues that a motion to strike out a statement of claim for failing to disclose a reasonable cause of action is not available after a defendant files a statement of defence to the action, that an order to strike should only be made in the clearest of cases and here there is a clear cause of action, and that, if there are any deficiencies in the pleading, the plaintiff should be granted leave to amend its statement of claim to reflect the settlement. In support of its position on the merits of its claim, it refers to facts, in particular, the settlement, which are not alleged in the statement of claim, and to allegations in the statement of defence. Finmac argues that no evidence can be considered on this kind of motion. Analysis and Decision [11] The law is clear that the issue of whether a pleading discloses a reasonable cause of action must be decided on the face of the pleading alone. The statement of claim, viewed in isolation from the statement of defence and the affidavit evidence, is lacking some important particulars, such as dates. However, this did not prevent the defendant from pleading to it, and the general rule appears to be that filing a statement of defence precludes a motion to strike for failure to disclose a reasonable cause of action. In McCurdy v. McKenzie (1986)[1], OSullivan J.A. noted: I do not think that it was open to the judge to dismiss on the ground of failure to disclose a cause of action because a statement of defence has already been filed on behalf of the government. [2].. [12] In Mandolfo Investments (Canada) Inc. v. Cut Above Restaurants Inc. (2000)[3], Master Lee (as he then was) declined to strike a claim for failure to disclose a reasonable cause of action where a statement of defence had been filed to the amended claim. He commented: A motion to strike a statement of claim as disclosing no cause of action should be brought prior to a statement of defence being filed. For purposes of considering the striking out of a statement of claim or portion thereof for failing to disclose a reasonable cause of action, the court must consider that all of the allegations in the pleadings are true. The defendant has considered the allegations in the statement of claim and has filed a statement of defence denying the allegations. These defendants determined that they did not require particulars for the purposes of pleading and I am persuaded that any 35

particulars that they now claim to be necessary to ascertain a cause of action can properly be obtained on discovery. [13] It appears that the defendant in this case was satisfied that the particulars set out in the statement of claim were sufficient for it to file a defence. The fact that the defendant takes the position in its statement of defence that the claim should be dismissed for failure to disclose a reasonable cause of action, does not, in my view, change the situation. The proper course would have been to file the motion before filing the statement of defence, not a year after. At this stage of the proceedings, if the defendant is so certain that the claim raises no real issues, it has the option of seeking summary judgment dismissing the claim. [14] The law is also clear that a statement of claim should not be struck out except in the clearest of cases, where it is plain and obvious or beyond doubt that the claim does not disclose a cause of action.[4] The nature of the cause of action here seems quite clear, despite the deficiencies. Furthermore, there is nothing preventing the plaintiff from instituting an action in Manitoba against the defendant, particularly since the defendant did not attorn to the jurisdiction of Saskatchewan in connection with the third party claim. The defendant cited no authority for the argument it advanced in this respect. [15] Therefore, I am not prepared to strike the claim. Centaur may wish to amend the claim to add the additional particulars as to the dates and the details of the settlement it reached with the School Division on which it is basing its claim for indemnity. 101. Plaintiff Andre Murray reiterates what was stated above which is that a motion

to strike out a statement of claim for failing to disclose a reasonable cause of action is not available after a defendant files a statement of defense to the action. It appears that the Defendant in this case was satisfied that the particulars set out in the statement of claim were sufficient for them to file a defence. All the Defendants who are appearing on Motion with the exception of Constable Debbie Stafford have filed a statement of Defense, therefore that relief particular relief which is to strike out a statement of claim for failing to disclose a reasonable cause of action is no longer available to those Defendants.

102.

Plaintiff asserts that an order to strike should only be made in the clearest of

cases and here the Plaintiff has demonstrated a clear cause of action, and that, if there are 36

any deficiencies in the pleading, the Plaintiff should be granted leave to amend its statement of claim to provide the necessary amendments. Lastly, no evidence can be considered on this kind of motion. The law is also clear that a statement of claim should not be struck out except in the clearest of cases, where it is plain and obvious or beyond doubt that the claim does not disclose a cause of action. The nature of the cause of action here seems quite clear, despite the alleged deficiencies.

103.

If this Court does find that there is some overriding deficiency in the Plaintiff

Claim this Court should grant leave to amend that Statement of claim, not strike the Plaintiffs Claim. Jurisprudence is clear regarding the issue of a just cause for the Plaintiff to amend his Statement of Claim, in Royal Bank of Canada v. Socit Gnrale (Canada), 2003 CanLII 9675 (ON SC), Justice Ground J. did state regarding granting leave to amend a Statement of Claim at paragraph 3 as follows: [3] I am of the view that the test for granting leave to amend a Statement of Claim is accurately set out in the judgment of Borins J. in AGF Canadian Equity Fund v. Trans America Commercial Finance Corp. reflex, (1993) 14 O.R. (3rd) 161 (Gen. Div.) as follows: Although the question of when a plaintiff should be given the opportunity to amend its statement of claim was not discussed in Hunt v. Carey, supra, in my view, it is reasonable to conclude from the strong policy views expressed by Wilson J. that a plaintiff should be afforded this opportunity unless the statement of claim contains a radical defect incapable of being cured by amendment. Therefore, on a motion under rule 21.01(1)(b), the court may exercise both its coercive and its corrective powers in a suitable and proper case. The object of the corrective power, which is found in rule 2.01(1) and rule 26.01, is to allow the court in the appropriate case to allow the plaintiff to replead and thereby prevent the plaintiff from being driven from the judgment seat without any court having considered his right to be heard: Dyson v. United Kingdon (Attorney General), [1911] 1 K.B. 410 at p. 419, 80 L.J.K.B. 531 (C.A.), per Fletcher-Moulton L.J. Indeed, the liberal amendment policy of the Rules of Civil Procedure would be undermined by efforts to impose on a plaintiff rigid pleading requirements on pain of having the action dismissed unless perfection in pleading is achieved. In my experience, on a motion to strike out a statement of claim for failing to disclose a reasonable cause of action the usual practice is to grant leave to amend the statement of claim unless it is clear the plaintiff is

37

unable to improve its case by an amendment it might properly be able to make: see e.g. McConald v. Mulqueen (1922), 53 O.L.R. 191 (H.C.J.); Kennedy v. Kennedy (1911), 24 O.L.R. 183 (C.A.); CBS Songs Ltd. v. Amstrad, [1988] A.C. 1013. The reason for this practice is the policy that cases should be finally decided on their merits and not on technicalities 104. As similarly stated by Justice Borins J. in AGF Canadian Equity Fund v. Trans

America Commercial Finance Corp, above, Indeed, the liberal amendment policy of the Rules of Court of New Brunswick would be undermined, by efforts to impose on a plaintiff, rigid pleading requirements, on pain of having the action dismissed unless perfection in pleading is achieved. Rule 23.01(b) 105. The object of permitting the striking out of a Statement of Claim, pursuant to

Rule 23.01(b) is to get rid of frivolous actions, including actions in which no reasonable cause of action is disclosed on the face of the pleadings. Rule 23.01(1)(b) authorizes the striking of the Statement of Claim, not the striking of a Notice of Action or the dismissal of the action.

106.

In New Brunswick Federation of Snowmobile Clubs et al. v. New Brunswick

All-Terrain Vehicle Federation et al., Summary Judgment Application, 2006 NBQB 149 (CanLII) Justice Peter S. Glennie stated the following regarding his analysis of Rule 22, Rule 23 and Rule 27 at paragraph 16, 17 and 19 through to and including paragraph 21, also paragraph 32 and paragraph 33 as follows: Analysis Applicable Rules [16] Rule 23 of the Rules of Court provides for the determination of questions before trial and specifically, Rule 23.01(b) provides for the striking of pleadings which do not disclose a reasonable cause of action. Rule 23.01(b) reads as follows: Where Available

38

(1) The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court (a)

(b) to strike out a pleading which does not disclose a reasonable cause of action or defence, or [17] Rule 27 relates to pleadings and specifically, Rule 27.09 provides for the striking out of pleadings or other documents which are scandalous, frivolous, vexatious, or an abuse of the court. Rule 27.09 reads as follows: The Court may strike out any pleading, or other document, or any part thereof, at anytime, with or without leave to amend, upon such terms as may be just, on the ground that it (a) may prejudice, embarrass or delay the fair trial of the action, (b) (c) be scandalous, frivolous or vexatious, or is an abuse of the process of the court.

Striking of Pleadings Rule 23 [19] The legal analysis required by a court prior to striking a pleading pursuant to Rule 23 was clearly established in Corcoran v. Gerwil Ltd., LeBlanc and LeBlanc (1983), 45 N.B.R. (2d) 86 (C.A.). In Corcoran, the Court confirmed that a determination made pursuant to Rule 23 is confined to an assessment of the pleadings. Specifically, the Court stated at paragraphs 5 and 6 that: On such an application, a judge is confined to considering the allegations contained in the Statement of Claim and any particulars relied upon by the Plaintiff, and must assume that all such allegations are true. It is only where the pleadings show on their face that the action is not maintainable or where an absolute defence exists that the Court will Strike out the claim. The object of permitting the striking out of a Statement of Claim is to get rid of frivolous actions, including actions in which no reasonable cause of action is disclosed on the face of the pleadings. Striking of Pleadings Rule 27 in Tandem with Rule 23

39

[20] In Smith v. Human Rights Commission (N.B.) et al. 1996 CanLII 4739 (NB Q.B.), (1996), 182 N.B.R. (2d) 191 (Q.B.), the Court confirmed that it is appropriate for a party to rely on Rule 27 and Rule 23 to strike out pleadings. In Smith, the Defendants moved to strike out some or all of the allegations against them in a Statement of Claim, relying on both 23.01(1) and Rule 27.09. In assessing the two rules, Justice Russell stated the following at 12-13: These rules are often used in tandem by parties applying to have all or some of a pleading struck out. While the moving parties have not defined which subsection of Rule 23.01 they are proceeding under, it is apparent from the wording of the prehearing briefs that they are each taking the position that it is Rule 23.01(1)(b). The late Mr. Justice Jones in Daly v. Petro-Canada [1992] N.B.J. No. 660 made the following statements: The thrust of the argument brought by the defendants is that the statement of claim does not disclose a reasonable cause of action against such named defendants. To the extent that they argue Rule 27.09 it is that the pleading is vexatious or an abuse of the process of the court on the basis that it does not disclose a cause of action. In approaching the question as to whether or not the statement of claim in this case discloses a cause of action against a particular named defendant the court accepts the allegations set out in the statement of claim as having been proven. If after making this assumption a court finds that it is plain and obvious that the pleadings do not disclose a cause of action the claim may be struck out. See Wilson, J. in Hunt v. Carey Canada Inc. 74 D.L.R. (4th) 321 at p. 336: assuming that the facts as stated in the statement of claim can be proved, it is [sic] "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". It is my understanding that the authorities clearly set forth that one looks at the pleadings and assumes the pleadings as proven and then determines whether or not in the words of Madame Justice Wilson it is "plain and obvious" that the plaintiffs' statement of claim discloses no reasonable cause of action.

40

Proceeding on the basis that I accept the allegation in the plaintiffs' statement of claim as proved it is not "plain and obvious" to me that the plaintiffs' statement of claim discloses no reasonable cause of action. It remains a matter to be disposed of in the trial process. The defendants' argument with respect to the pleadings being vexatious and frivolous comes back to resting upon the foundation that they do not disclose a reasonable cause of action. 107. As similarly stated above in New Brunswick Federation of Snowmobile Clubs et

al. v. New Brunswick All-Terrain Vehicle Federation et al., supra, the thrust of the argument brought by the Defendants, is that the Plaintiffs statement of claim does not disclose a reasonable cause of action against the named Defendants. They allege that the pleading is vexatious or an abuse of the process of the court on the basis that it does not disclose a cause of action. In approaching the question as to whether or not the statement of claim in this case discloses a cause of action against a particular named defendant the court accepts the allegations set out in the statement of claim as having been proven. If after making this assumption a court finds that it is plain and obvious that the pleadings do not disclose a cause of action the claim may be struck out.

108.

In Sewell v. ING Insurance Company of Canada, 2007 NBCA 42 (CanLII)

CHIEF JUSTICE OF NEW BRUNSWICK J. ERNEST DRAPEAU, stated the following regarding Rules 23.01(1)(b) and 27.09 as follows: http://www.canlii.org/en/nb/nbca/doc/2007/2007nbca42/2007nbca42.html B. [12] The Notice of Motion In its Notice of Motion ING applied for an order striking the Plaintiffs Notice of Action with Statement of Claim Attached pursuant to Rules 23.01(1)(b) and 27.09. As noted, ING asserted entitlement to that relief on the ground that the Plaintiffs Notice of Action with Statement of Claim Attached did not disclose a reasonable cause of action. I hasten to point out that neither Rule 23.01(1)(b) nor Rule 27.09 authorize the striking of a Notice of Action. All they permit is the striking of a pleading. Analysis and Decision

III.

41

A. [22]

The Motion to strike under Rule 23.01(1)(b) As noted, Rule 23.01(1)(b) provides that a defendant may, at any time before the action is set down for trial, apply to the court to strike out a Statement of Claim that does not disclose a reasonable cause of action. The question before the motion judge was not whether Ms. Sewells action was factually meritorious, an issue determinable prior to trial on a motion for summary judgment under Rule 22.01(3), but whether her Statement of Claim disclosed a reasonable cause of action. I emphasize, once again, that Rule 23.01(1)(b) authorizes the striking of the Statement of Claim, not the striking of a Notice of Action or the dismissal of the action (regarding the last point, see Norris v. Lloyd's of London 1998 CanLII 12249 (NB C.A.), (1998), 205 N.B.R. (2d) 29 (C.A.), [1998] N.B.J. No. 351 (QL) at para. 13). In Caissie v. Snchal Estate et al. 2001 NBCA 35 (CanLII), (2001), 237 N.B.R. (2d) 232, [2001] N.B.J. No. 120 (QL), 2001 NBCA 35, at paras. 10-11, the Court explained the procedure that governs motions such as the one brought by ING in the case at bar: Rule 23.01(1)(b) allows for a motion to strike out a pleading on the ground that it does not disclose a reasonable cause of action or defence. When the moving party is the defendant, the question to be answered by the court is the following: Assuming the facts as stated are true, is it "plain and obvious" that the Statement of Claim discloses no reasonable cause of action? See Hunt v. T & N plc et al., 1990 CanLII 90 (S.C.C.), [1990] 2 S.C.R. 959; 117 N.R. 321, at para. 33. The object of Rule 23.01(1)(b) is to permit the striking of a pleading that on its face does not disclose a cause of action or defence. Accordingly, evidence purporting to provide a factual foundation for the action or defence is inadmissible, except with leave of the court under Rule 23.02. In the usual case, the court's decision under Rule 23.01(1)(b) will be based on a record comprised exclusively of the pleadings. Despite the significant evidentiary constraints imposed, expressly and implicitly, by Rule 22, the court is required to consider a significantly greater record when called upon to determine a motion for summary judgment. [Emphasis added.]

[23]

[24]

[25]

The Court re-affirmed its commitment to that approach in Modern Construction (1983) Ltd. v. Enbridge Gas New Brunswick Inc. et al. 2003 NBCA 78 (CanLII), (2003), 264 N.B.R. (2d) 145, [2003]

42

N.B.J. No. 396 (QL), 2003 NBCA 78, noting that the judges of this Province have, without fail, applied the test articulated in Hunt to determine motions under Rule 23.01(1)(b) and adding, at para. 21, that in making that determination, they were required to accommodate drafting deficiencies by a generous reading of the contested text. [26] The principles that inform the determination of a defendants motion to strike under Rule 23.01(1)(b) are well settled and can be summarized as follows: (1) the only question for judicial resolution is whether it is plain and obvious that the Statement of Claim fails to disclose the essential elements of a cause of action tenable at law. That conclusion should be reached only in the clearest of cases; (2) correlatively, absent exceptional circumstances, the court must accept as proved all facts asserted in the Statement of Claim and abstain from looking beyond the pleading itself and any documents referred to therein (see Hogan v. Doiron et al. 2001 NBCA 97 (CanLII), (2001), 243 N.B.R. (2d) 263, [2001] N.B.J. No. 382 (QL), 2001 NBCA 97, para. 38 and Boisvert v. LeBlanc 2005 NBCA 115 (CanLII), (2005), 294 N.B.R. (2d) 325, [2005] N.B.J. No. 561 (QL), 2005 NBCA 115, para. 21). To expand the exercise beyond those limits would operate to morph the motion under Rule 23.01(1)(b) into an application for summary judgment under Rule 22, the appropriate vehicle to determine prior to trial whether there is factual merit to a claim; (3) the Statement of Claim is to be read generously to accommodate drafting deficiencies; and (4) where a generous reading of its provisions fails to breath life into a pleading, all suitable amendments should be allowed (see Rule 27.10(1) and LeDrew et al. v. Conception Bay South (Town) 2003 NLCA 56 (CanLII), (2003), 231 Nfld. & P.E.I.R. 61, [2003] N.J. No. 276 (QL), 2003 NLCA 56). Those principles reflect the Legislatures injunction that the Rules be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits: Rule 1.03. In my respectful judgment, the motion judge erred in law in considering the transcript of Ms. Sewells evidence on discovery. While it is true that Rule 23.02(a) purports to come into play in all applications under Rule 23.01(1) including, therefore, a motion to strike under Rule 23.01(1)(b) any transcript of an examination must be relevant before it can be admitted. Ms. Sewells evidence on discovery is unarguably irrelevant to the determination of the question at issue here: is it plain and obvious that her Statement of Claim fails to disclose the essential elements of a cause of action tenable at law? Her affidavit is likewise irrelevant and inadmissible. Despite the breadth of its introductory wording, Rule 23.02(a) will rarely, if ever, come into play on a motion under Rule 23.01(1)(b). Needless to say, it is a natural fit in the context of applications for judgment on an admission of fact in the examination of an adverse party pursuant to Rule 23.01(1)(c).

[27]

43

[28]

Moreover, I am also of the view that the motion judge erred in law in finding that it was plain and obvious that the Statement of Claim fails to disclose a reasonable cause of action. It is apparent from Ms. Sewells pleading that she is asserting an entitlement to damages under the SEF 44 issued by ING. A fair reading of the Statement of Claim compels the conclusion that it features the implicit allegation that Ms. Sewell is an eligible claimant. The contrary view is, in my respectful view, the product of a less than generous approach to the exercise required by Rule 23.01(1)(b). Interestingly, in its Amended Statement of Defence, ING states that Ms. Sewell is not an insured person and/or a spouse as defined by the provisions of the SEF 44 endorsement and specifically denies that [she] is eligible for coverage pursuant to the terms and conditions of the SEF 44 endorsement. That said, and assuming only for the sake of argument that INGs objection to the Statement of Claim is well founded, it would have behooved the motion judge to allow the amendment sought by Ms. Sewell (see Triathlon Leasing Inc. v. Juniberry Corp. and Hong 1995 CanLII 6225 (NB C.A.), (1995), 157 N.B.R. (2d) 217 (C.A.), [1995] N.B.J. No. 36 (QL) per Turnbull J.A. for the Court, and Rule 27.10(1) which ordains the making of all amendments to pleadings that are necessary for the purpose of determining the real questions in issue). B. The Motion to strike under Rule 27.09

[29]

[30]

The conclusion that Ms. Sewells Statement of Claim does not fail to disclose a reasonable cause of action disposes, as well, of the motion under Rule 27.09. Conclusion and Disposition For the reasons outlined above, immediately after hearing counsel for the parties, the Court allowed the appeal and set aside the order striking the Statement of Claim, leaving outstanding the issue of costs. I would wrap up the proceedings by ordering ING to pay costs throughout, which I would fix at $5,000.

IV. [31]

109.

The Defendants seeks an order, pursuant to Rule 23.01(1)(b), striking out the

Plaintiffs original Statement of Claim filed March 4, 2011 and the Amended Action Dated September 8, 2011 or part of Plaintiffs Statement of Claim on the grounds that it fails to disclose a reasonable cause of action against them. The principles, as referred to above, by Chief Justice Ernest Drapeau, in Sewell v. ING Insurance Company of Canada,

44

2007, which inform the reader that a determination of a defendants motion to strike under Rule 23.01(1)(b), are well settled and can be summarized as follows: (1) the only question for judicial resolution is whether it is plain and obvious that the Statement of Claim fails to disclose the essential elements of a cause of action tenable at law. That conclusion should be reached only in the clearest of cases; (2) correlatively, absent exceptional circumstances, the court must accept as proved all facts asserted in the Statement of Claim and abstain from looking beyond the pleading itself and any documents referred to therein. To expand the exercise beyond those limits would operate to morph the motion under Rule 23.01(1)(b) into an application for summary judgment under Rule 22, the appropriate vehicle to determine prior to trial whether there is factual merit to a claim; (3) the Statement of Claim is to be read generously to accommodate drafting deficiencies; and (4) where a generous reading of its provisions fails to breath life into a pleading, all suitable amendments should be allowed 110. Plaintiff contends, a `reasonable cause of action' means that a cause of action has

some chance of success, if and when only the allegations in the pleading are considered. If and when those allegations are examined it is found that the alleged cause of action is certain to fail, the statement of claim may be struck out. This case before the Court, is not one of those cases. 111. In Norris v. Lloyd's of London, 1998 CanLII 12249 (NB C.A.)

Justice J. ERNEST DRAPEAU, J.A (As he then was), stated the following regarding analysis of Rule 23.01 (please see below, beginning at page 3 and through to page 7) as Follows: [Page 3] ANALYSIS AND DECISION RULE 23.01(1)(a) AND THE POWER TO STRIKE AN ACTION Lloyd's Notice of Motion does not identify which paragraph of subrule 23.01 it relies on, let alone the clause or subclause. Such a practice does not conform with the spirit nor the letter of Rule 37.03(b). A motion should, by its terms, direct the court to the specific rule, paragraph, clause or subclause relied on. If the opposing party does not insist upon this, the motion judge should. a)

45

In light of the generality of the motion, it is convenient to reproduce all of Rule 23.01 before addressing its application to the present case: 23.01 Where Available

(1) The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court (a) for the determination prior to trial, of any question of law raised by a pleading in the action where the determination of that question may dispose of the action, shorten the trial, or result in a substantial saving of costs, (b) to strike out a pleading which does not disclose a reasonable cause of action or defence, or (c) for judgment on an admission of fact in the pleadings, in the examination of an adverse party, or in answer to a Request to Admit Facts; (2) A defendant may, at any time before the action is set down for trial, apply to

[Page 4] the court to have the action stayed or dismissed on the ground that (a) the court does not have jurisdiction to try the action. (b) the plaintiff does not have legal capacity to commence or continue the action, or (c) another action is pending in the same or another jurisdiction between the same parties and in respect of the same claim. (d) New Brunswick is not a convenient forum for the trial or hearing of the proceeding. Paragraph (2) as well as clause (c) of para. (1) of subrule 23.01 can be quickly eliminated as a basis for the motion, since none of the conditions precedent to their application are present in this case. As for clause (b) of para. (1), it authorizes the striking out of a pleading, not the striking of an action. In any event, the limitation condition involved here does not eliminate the cause of action, it merely bars the remedy. In such a case, the Statement of Claim can not be struck out under Rule 23.01(1)(b) on the basis that it does not disclose a reasonable cause of action. See Halsbury's Laws of England, Vol. 28, (4th ed.) (London: Butterworths, 1976) at p. 442, para. 856, and Ronex Properties Ltd. v. John Laing Construction Ltd., [1982] 3 All E.R. 961 (C.A. (Civil Div.)). 46

Thus, Rule 23.01(1)(a) stands alone as the basis for the relief obtained by Lloyd's. [Page 5] .. Here, the Court of Queen's Bench lacked the requisite power, inherent or otherwise, to strike the action, in effect dismissing the action and granting judgment, where the motion before it was confined to raising the determination of a question of law under Rule 23.01(1)(a). That is not to say that a judgment can never be granted as a result of a motion under Rule 23.01(1)(a): it can be where the motion includes a motion for summary judgment under Rule 22, or where the motion judge directs that the motion under Rule 23.01(1)(a) be converted into a motion for judgment, as permitted by Rule 37.10(a). (For an example of the successful combined use of Rule 23.01(1)(b) and Rule 22, see Lopold Dub c. Roosevelt Dionne et al., [1998] A.N.-B. n 241 (QL)). In the present case, Lloyd's did not apply for summary judgment under Rule 22, nor was there a direction by Mr. Justice Russell pursuant to Rule 37.10(a). 112. One of the remedies which is being requested in the Defendants Motions,

striking the Plaintiffs Statement of Claim, is one which is only to be applied in plain and obvious cases, when the action is one which cannot succeed or is in some way an abuse of the process of the court, which is not a fact in the present in this case. It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable or that it is quite plain that his alleged cause of action has no chance of success, this matter before the Court does not fall into the category.

113.

Furthermore in Johnston v. McGibbon, 2004 NBQB 280 (CanLII) Justice

William T. Grant stated the following regarding Rules of Court, Rule 23.01(b) Rule 27.09(b) and (c) (please see below, from paragraph 3 though to and including paragraph 11), as follows: [3] With respect to the allegations against Doctor Scarth in the Statement of Claim, Doctor Scarth brings this motion under Rule 23.01(b) of the Rules of Court which states:

47

The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court (b) to strike out a pleading which does not disclose a reasonable cause of action or defence He also relies on Rules 27.09(b) and (c) which provide: The court may strike out any pleading, or other document, or any part thereof, at any time, with or without leave to amend, upon such terms as may be just, on the ground that it (b) is scandalous, frivolous or vexatious, or (c) is an abuse of the process of the court. [5] The test to be applied in a motion to strike out a Statement of Claim, or portions thereof, for failing to disclose a reasonable cause of action was enunciated by Madam Justice Wilson of the Supreme Court of Canada in the case of Hunt v. Carey Canada Inc. 1990 CanLII 90 (S.C.C.), [1990] 2 S. C. R., 959, where she stated at p. 980: assuming that the facts as stated in the Statement of Claim can be proved, is it plain and obvious that the plaintiffs statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be driven from the judgment seat. Neither the length and complexity of the issues, the novelty of the cause of action nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. [6] Madam Justice Wilson also approved the following limitation to the use of this rule applied by Tysoe, J.A. in Minnes v. Minnes reflex, [1962] 39 W. W. R. 112 where he stated at p. 122: So long as the statement of claim as it stands or as it may be amended discloses some question fit to be tried by a judge or jury, the mere fact that the case is weak or not likely to succeed is no ground for striking it out [7] The evidence that the Court must consider in a motion under Rule 23.01(b) was discussed by the New Brunswick Court of Appeal in the case of Caissie v. Snchal Estate 2001 NBCA 35 (CanLII), (2001), 237 N.B.R. (2d) 232, where the Court stated at p. 239:

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The object of Rule 23.01(1)(b) is to permit the striking of a pleading that on its face does not disclose a cause of action or defence. Accordingly, evidence purporting to provide a factual foundation for the action or defence is inadmissible, except with leave of the court under Rule 23.02. In the usual case, the courts decision under Rule 23.01(1)(b) will be based on a record comprised exclusively of the pleadings [8] While that case concerned a motion for summary judgment under Rule 22, the Courts comments are instructive. [11] The plaintiff alleges no tort by Dr. Scarth in these paragraphs. I therefore find that it is plain and obvious that the allegations against Doctor Scarth in paragraphs 4, 5 and 6 of the Statement of Claim disclose no cause of action and they will therefore be struck. Those portions of paragraph 6 that I did not cite above will not be struck from the record. 114. It seems obvious that so long as the statement of claim, as it stands or as it may

be amended discloses some question fit to be tried by a Court, the mere fact that the case is weak or not likely to succeed is no ground for striking it out. After reviewing the cases above, the Plaintiffs Statement of Claim, does not fall into a category that it is plain and obvious that the allegations against the Defendants, in the March 4, 2011 or the September 8, 2011 Amended Statement of the Statement of Claim, disclose no cause of action. Rule 27.09 RULE 27 PLEADINGS 27.09 Striking Out a Pleading or Other Document The court may strike out any pleading, or other document, or any part thereof, at any time, with or without leave to amend, upon such terms as may be just, on the ground that it (a) may prejudice, embarrass or delay the fair trial of the action, (b) is scandalous, frivolous or vexatious, or (c) is an abuse of the process of the court. 115. The Defendants have applied Under the Rules of Court, Rule 27.09 Striking Out

a Pleading or Other Document, for an order striking out the Plaintiffs entire Original March 4, 2011 Statement of Claim, and the September 8, 2011 Amended Statement of 49

Claim. Rule 27.09, provides for the striking out of pleadings, portions thereof or other documents which are scandalous, frivolous, vexatious, or otherwise an abuse of the court.

116.

Regarding Rule 27.09, the Plaintiff will provide for the Courts convenience the

following definitions.

117.

Black's Law Dictionary (8th ed. 2004), at Page 3738 provide the definition of

PREJUDICE as follows: prejudice,n. 1. Damage or detriment to one's legal rights or claims. 2. A preconceived judgment formed without a factual basis; a strong bias. [Cases: Judges 49. C.J.S. Judges 108.] 118. Merriam-webster provides the following definition of embarrass as followes: embarrass 1 a : to place in doubt, perplexity, or difficulties b : to involve in financial difficulties c : to cause to experience a state of self-conscious distress <bawdy stories embarrassed him> 2 a : to hamper the movement of b : hinder, impede 3: to make intricate : complicate 4 : to impair the activity of (a bodily function) or the function of (a bodily part) <digestion embarrassed by overeating> 119. American Heritage Dictionary of the English Language, Fourth Edition provides embarrass 1. To cause to feel self-conscious or ill at ease; disconcert: Meeting adults embarrassed the shy child. 2. To involve in or hamper with financial difficulties. 3. To hinder with obstacles or difficulties; impede. 4. To complicate. 5. To interfere with (a bodily function) or impede the function of (a body part).

http://www.merriam-webster.com/dictionary/embarrass

the following definition of embarrass as follows:

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120.

Black's Law Dictionary (8th ed. 2004), at Page 1289 provide the definition of delay,n.1. The act of postponing or slowing <the continuance was sought for no purpose other than delay>. Cf. VEXATIOUS DELAY. 2. An instance at which something is postponed or slowed <the delay in starting the trial made it difficult for all the witnesses to attend>. 3. The period during which something is postponed or slowed <during the delay, the case settled>. 4.Civil law. The period within which a party to a suit must take some action, such as perfecting an appeal or responding to a written-discovery request < the delay for responding to written interrogatories is 15 days after the date they are served on the responding party>.

DELAY as follows:

121.

Black's Law Dictionary (8th ed. 2004), at Page 1788 provides the definition of 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>.

FAIR as follows:

122. follows:

Black's Law Dictionary (8th ed. 2004), at Page 1792 defines FAIR TRIAL as fair trial. A trial by an impartial and disinterested tribunal in accordance with regular procedures; esp., a criminal trial in which the defendant's constitutional and legal rights are respected. Also termed fair and impartial trial.

123.

Black's Law Dictionary (8th ed. 2004), at Page 4187 defines SCANDAL and SCANDAL scandal. 1. Disgraceful, shameful, or degrading acts or conduct. 2. Defamatory reports or rumors; esp., slander. See SCANDALOUS MATTER. Scandal consists in the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to decency or good manners, or which charges some person with a crime not necessary to be shown in the cause, to which may be added that any unnecessary allegation, bearing cruelly upon the moral character of an individual, is also scandalous. The matter alleged, however, must be not only offensive, but also irrelevant to the cause, for however offensive it be, if it be pertinent and material to the cause the party has a right to plead it. It may often be necessary to charge false representations, fraud and immorality, and the pleading will not be open to the objection of scandal, if the facts justify the charge. Eugene A. Jones, Manual of Equity Pleading and Practice 5051 (1916).

SCANDALOUS MATTER as follows:

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SCANDALOUS MATTER scandalous matter. Civil procedure. A matter that is both grossly disgraceful (or defamatory) and irrelevant to the action or defense. A federal court upon a party's motion or on its own can order a scandalous matter struck from a pleading. Fed. R. Civ. P. 12(f). Cf. IMPERTINENT MATTER. [Cases: Federal Civil Procedure 1127; Pleading 364(4). C.J.S. Pleading 683.] 124. Black's Law Dictionary (8th ed. 2004), at Page 1969 provides the following frivolous, adj. Lacking a legal basis or legal merit; not serious; not reasonably purposeful <a frivolous claim>. 125. follows: vexatious, adj. (Of conduct) without reasonable or probable cause or excuse; harassing; annoying. 126. Black's Law Dictionary (8th ed. 2004), at Page 31 provides the definition of abuse of process. The improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process's scope. Also termed abuse of legal process; malicious abuse of process; malicious abuse of legal process; wrongful process; wrongful process of law. Cf. MALICIOUS PROSECUTION. [Cases: Process 168171. C.J.S. Process 106114.] One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed is subject to liability to the other for harm caused by the abuse of process. Restatement (Second) of Torts 682 (1977). 127. In Spencer v. Quadco Equipment Inc. and others, 2005 NBQB 2 (CanLII) Black's Law Dictionary (8th ed. 2004), at page 4842 defines VEXATIOUS as

definition of FRIVOLOUS as follows:

ABUSE OF PROCESS as follows:

Justice William T. Grant did provide the following comment on Rule 27.09 as follows from paragraph 34 to 36: [34] The moving parties all request that the claims against them be struck out under Rule 27.09 which reads as follows: 27.09 The Court may strike out any pleading or other document, or an part thereof, at any time, with or without leave to amend, upon such terms as may be just, on the ground that it (a) may prejudice, embarrass or delay the fair trial of the action,

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(b) is scandalous, frivolous or vexatious, or (c) is an abuse of the process of the court. [35] Because of the guiding principle that no party should be deprived of his right to a trial on the merits of his case except where it is plain and obvious that he has no case, the Court will only use Rule 27.09 to strike pleadings reluctantly and in the clearest of cases. See Corcoran v Gerwil Ltd., LeBlanc and LeBlanc (1983) 45 N.B.R.(2d) 86 (C.A.). [36] Moreover, Rule 27.09 clearly stipulates the grounds for striking pleadings, none of which are present in this case. There is no evidence, for example, that the pleadings, or any of them, would prejudice, delay or embarrass the fair trial of the action, are frivolous, or constitute an abuse of process. I therefore dismiss the motions to strike out the various pleadings under this Rule. 128. The Defendants says that the claims of the Plaintiff are scandalous, frivolous,

and vexatious, but there is no evidence, before this Court of that fact, as similarly stated by Justice William T. Grant above, for example, that the pleadings, or any of them, would prejudice, delay or embarrass the fair trial of the action, are frivolous, or constitute an abuse of process. Because of the guiding principle that no party should be deprived of his right to a trial on the merits of his case except where it is plain and obvious that he has no case, the Court will only use Rule 27.09 to strike pleadings reluctantly and in the clearest of cases.

129.

Smith v. New Brunswick (Human Rights Commission), 1996 CanLII 4739 (NB

QB), Justice RUSSELL, J. did provide the following regarding Rule 27.09, from page 3 through to page 7 as follows: The late Mr. Justice Jones in Daly v. Petro-Canada [1992] N.B.J. No. 660 made the following statements: The thrust of the argument brought by the defendants is that the statement of claim does not disclose a reasonable cause of action against such named defendants. To the extent that they argue Rule 27.09 it is that the pleading is vexatious or an abuse of the process of the court on the basis that it does not disclose a cause of action.

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In approaching the question as to whether or not the statement of claim in this case discloses a cause of action against a particular named defendant the court accepts the allegations set out in the statement of claim as having been proven. If after making this assumption a court finds that it is plain and obvious that the pleadings do not disclose a cause of action the claim may be struck out. See Wilson, J. in Hunt v. Carey Canada Inc. 74 D.L.R. (4th) 321 at p. 336: ... assuming that the facts as stated in the statement of claim can be proved, it is "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". It is my understanding that the authorities clearly set forth that one looks at the pleadings and assumes the pleadings as proven and then determines whether or not in the words of Madame Justice Wilson it is "plain and obvious" that the plaintiffs' statement of claim discloses no reasonable cause of action. Proceeding on the basis that I accept the [Page 5] allegations in the plaintiffs' statement of claim as proved it is not "plain and obvious" to me that the plaintiffs' statement of claim discloses no reasonable cause of action. It remains a matter to be disposed of in the trial process. The defendants' argument with respect to the pleadings being vexatious and frivolous comes back to resting upon the foundation that they do not disclose a reasonable cause of action. When discussing Rule 27.09 Mr. Justice Dickson relying heavily on Halsbury's Laws of England made the following statements in University of New Brunswick Student Union Inc. v. Smith et al reflex, (1988), 81 N.B.R. (2d) 397: The law applicable in this jurisdiction is essentially as set out in Halsbury (4th Ed.) Vol. 37 where in paragraph 430 it is stated: 430. Summary powers to strike out pleadings, dismiss actions and enter judgments. The court is invested with extensive powers to strike out pleadings and thereupon, or for other good reason arising from the making of the claim or defence, to dismiss actions by plaintiffs or to enter judgments against defendants. These powers are both salutary and necessary not only to enforce the basic rules of pleadings but also to dispose 54

of proceedings which are hopeless, baseless or without foundation in law or in equity or are otherwise an abuse of the process of the court. The powers are exercised by the court by summary process, speedily and generally at an early stage of the proceedings, and they operate as a powerful, effective method of disposing of proceedings without a plenary trial. The powers are derived from two parallel sources. First they are conferred by rules of court and secondly they are exercisable under the court's inherent jurisdiction. These sources are cumulative, not alternative, and may be invoked by the parties and employed by [Page 6] the court simultaneously. However, the powers are permissive, not mandatory, and they confer a discretionary jurisdiction which the court will exercise in the light of all the circumstances concerning the offending pleading. This discretion will be exercised by applying two fundamental, although complementary, principles. The first principle is that the parties will not lightly "be driven from the seat of judgment", and for this reason the court will exercise its discretionary power with the greatest care and circumspection, and only in the clearest cases. The second principle is that a stay or even dismissal of proceedings may "often be required by the very essence of justice to be done", so as to prevent the parties being harassed and put to expense by frivolous, vexatious or hopeless litigation. Abuse of process has been described (ibid, para. 434) as follows: An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court.

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And ibid, at para. 435: [Page 7] The power to strike out, stay or dismiss under the court's inherent jurisdiction is discretionary. It is a jurisdiction which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed; it ought to be exercised sparingly and only in exceptional cases. However, for this purpose the court is entitled to inquire into all the facts and circumstances of the case, and to this end affidavit evidence is admissible. In a proper case the court may exercise its jurisdiction even if the application to strike out is made at a late stage of the proceedings. And, ibid, at para. 443: The most important ground on which the court exercises its inherent jurisdiction to stay proceedings is that of abuse of process. This is a power which, it has been emphasised, ought to be exercised sparingly and only in exceptional cases. It is not confined to cases where the indorsement of the writ or the pleading is an abuse of process, but may be exercised where the abuse extends beyond the indorsement or pleading and is demonstrated by almost incontrovertible facts and circumstances proved by affidavit evidence, if necessary. It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed, but that he could not possibly succeed on the basis of the pleadings and the facts of the case. 130. As referred to above, It is my understanding that the authorities clearly set forth

that one looks at the pleadings and assumes the pleadings as proven and then determines whether or not in the words of Madame Justice Wilson it is "plain and obvious" that the plaintiffs' statement of claim discloses no reasonable cause of action. Proceeding on the basis that the Court accept the allegations in the plaintiffs' statement of claim as proved, it should not be "plain and obvious" to this Court that the plaintiffs' statement of claim discloses no reasonable cause of action. Consequentially, this remains a matter to be

56

disposed of in the trial process. This is a above referenced power which, it has been emphasized, ought to be exercised sparingly and only in exceptional cases. This in not one of those cases.

131.

In Hunt v. carey canada inc., [1990] 2 SCR 959, The Supreme Court did provide

as follows regarding, cases which are obviously frivolous or vexatious, that is, open to a defendant to admit all the facts that the plaintiff's pleadings alleged and to assert that these facts were not sufficient in law to sustain the plaintiff's case, if they were successful the Court was prepared to take action against a "manifestly vexatious suit which was plainly an abuse of the authority of the court" Rule 19(24) of the British Columbia Rules of Court and analogous provisions in other provinces are the result of a "codification" of the court's power under its inherent jurisdiction to stay actions that are an abuse of process or that disclose no reasonable cause of action: see McLachlin and Taylor, British Columbia Practice (2nd. ed. 1979), vol. 1, pp. 19-71. This process of codification first took place in England shortly after the Supreme Court of Judicature Act, 1873, (Eng.) 36 & 37 Vict., c. 66, was enacted. It is therefore of some interest to review the interpretation the courts in England have given to their rules relating to the striking out of a statement of claim. (a) England: In Metropolitan Bank, Ltd. v. Pooley, [1881-85] All E.R. 949 (H.L.), the Lord Chancellor explained at p. 951 that before the Supreme Court of Judicature Act, 1873, courts were prepared to stay a "manifestly vexatious suit which was plainly an abuse of the authority of the court" even although there was no written rule stating that courts could do so. The Lord Chancellor noted, at p. 951, that "The power seemed to be inherent in the jurisdiction of every court of justice to protect itself from the abuse of its procedure". That is, it was open to courts to ensure that their process was not used simply to harass parties through the initiation of actions that were obviously without merit. Before the advent of the Supreme Court of Judicature Act, 1873 and the new Rules of the Supreme Court (enacted in 1883) it had been open to parties to use a "demurrer" to challenge a statement of claim. That is, it had been open to a defendant to admit all the facts that the plaintiff's pleadings alleged and to assert that these facts were not sufficient in law to sustain the plaintiff's case. When a demurrer was pleaded the question of law that was thereby raised was immediately set down for argument and decision: see Halsbury's Laws of England (4th ed. 1981), vol. 36, para. 2, n. 7 and para. 35, n. 5; Milsom, Historical Foundations of the Common Law 57

(2nd ed. 1981), at p. 72; and Baker, An Introduction to English Legal History (2nd ed. 1979), at p. 69. But a formal and technical practice eventually grew up around demurrer and judges were notoriously reluctant to provide definitive answers to the points of law that were thereby raised. As the Lord Chancellor explained in Pooley, it was eventually thought best to replace demurrers with an easier summary process for getting rid of an action that was on its face manifestly groundless. It was with this objective in mind that O. 25, r. 4 of the 1883 Rules of the Supreme Court came into force: 4. The court or a judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court or a judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just. One of the most important points advanced in the early decisions dealing with O. 25, r. 4 was the proposition that the rule was derived from the courts' power to ensure both that they remained a forum in which genuine legal issues were addressed and that they did not become a vehicle for "vexatious" actions without legal merit designed solely to harass another party. In Pooley, supra, at p. 954, Lord Blackburn asserted that the new rule "considerably extends the power of the court to act in such a manner as I have stated, and enables it to stay an action on further grounds than those on which it could have been stayed at common law." Nonetheless, as Chitty J. subsequently observed in Peruvian Guano Co., the rule was not intended to prevent a "substantial case" from coming forward. Its summary procedures were only to be used where it was apparent that allowing the case to go forward would amount to an abuse of the court's process. The second and more summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression "reasonable cause of action" in rule 4 shews that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases. [Emphasis added.] Then the Vice-Chancellor says: "The questions raised upon this application are of such importance and such difficulty that I cannot say that this pleading discloses no reasonable cause of action, or that there is anything frivolous or vexatious; therefore, I should let the parties plead in the usual way". It appears to me that this is perfectly right. To what extent is the Court to go on inquiring into difficult questions of fact or law in the exercise of the power which is given it under Order XXV., rule 4? It appears to me that the object of the rule is to stop cases which ought not to be launched -- cases which are obviously frivolous or vexatious, or obviously unsustainable; and if it will take a long time, as is suggested, to satisfy the Court by historical research or otherwise that the County Palatine has no jurisdiction, I am

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clearly of opinion that such a motion as this ought not to be made. There may be an application in Chambers to get rid of vexatious actions; but to apply the rule to a case like this appears to me to misapply it altogether. [Emphasis added.] In Ross, Magee J.A. embraced the "plain and obvious" test developed in England, stating at p. 316: That inherent jurisdiction is partly embodied in our Rule 124, which allows pleadings to be struck out if disclosing no reasonable cause of action or defence, and thereby, in such case, or if the action or defence is shewn to be vexatious or frivolous, the action may be stayed or dismissed or judgment be entered accordingly. The Rule has only been acted upon in plain and obvious cases, and it should only be so when the Court is satisfied that the case is one beyond doubt, and that there is no reasonable cause of action or defence. [Emphasis added.] At an early date, then, the Ontario Court of Appeal had modelled its approach to Rule 124 on the approach that had been consistently favoured in England. And over time the Ontario Court of Appeal has gone on to show the same concern that statements of claim not be struck out in anything other than the clearest of cases. As Laidlaw J.A. put it in Rex ex rel. Tolfree v. Clark, [1943] O.R. 501 (C.A.), at p. 515: The power to strike out proceedings should be exercised with great care and reluctance. Proceedings should not be arrested and a claim for relief determined without trial, except in cases where the Court is well satisfied that a continuation of them would be an abuse of procedure: Evans v. Barclay's Bank et al., [1924] W.N. 97. But if it be made clear to the Court that an action is frivolous or vexatious, or that no reasonable cause of action is disclosed, it would be improper to permit the proceedings to be maintained. 132. The Court may Order any pleading or any portion thereof, to be struck out on the

ground that it discloses no reasonable cause of action, and in any such case, or in case of the action being shown to be frivolous or vexatious, may order the action to be stayed, dismissed, or judgment to be entered accordingly. The power to strike out proceedings should be exercised with great care and reluctance. Proceedings should not be arrested and a claim for relief determined without trial, except in cases where the Court is well satisfied that a continuation of them would be an abuse of procedure 133. In Songhurst v. Shawnigan Lake Recreation Assn., 1995 CanLII 2125 (BC S.C.)

Master William McCallum made reference to the absence of allegations which would

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support damages (please see below at paragraph 13 through to and including paragraph 15), as follows: 13 There are no allegations plead in the Statement of Claim which would support damages for unjust enrichment, oppressive conduct by the Association, or arbitrary, vindictive and malicious acts by the Association. The Plaintiffs ought not to be able to pursue the claims for damages for unjust enrichment, oppressive conductive and arbitrary vindictive and malicious acts. Those claims are subsumed in the general, special and punitive damages claims which include damages for trespass. In summary, even if the allegations in the amended Statement of Claim were proven, the Plaintiffs are bound to fail in their claims for damages for unjust enrichment, damages for oppressive conduct, and damages for arbitrary vindictive and malicious acts. There are no allegations plead which support those claims.

14

15

134.

Unlike the Songhurst v. Shawnigan Lake Recreation Assn., 1995 case referred to

above, if allegations in the Plaintiffs Amended Statement of Claim were proven, the Plaintiff is definitely not bound to fail in claims for damages. Before the Court are credible allegations, statements of fact which support those claims, these claims are based in legally recognizable tort, therefore the Court should not strike the Plaintiffs claims.

135.

In Moncton Family Outfitters et al. v. Schelew, 2005 NBQB 273 (CanLII)

Justice Peter S. Glennie analyzed how a litigant has the right to apply for Judgment regarding Rule 27.09 to strike the Statement of Claim as follows [31] In New Brunswick a Defendant alleging abuse of process on the part of a Plaintiff has the right to apply for Summary Judgment or rely upon Rule 27.09 to strike the Statement of Claim. Apart from the Rules, the Court has inherent jurisdiction to act in such an instance. See University of New Brunswick Student Union Inc. v. Smith 1987 Carswell N.B. 302, (N.B.Q.B.) upheld on appeal at 1988 Carswell N.B. 261. [33] For example, in Levi Strauss Co. v. Roadrunner Apparel Inc. 1997 Carswell Nat. 2112 Federal Court of Appeal, the Plaintiffs brought an action for infringement of trademark. The Plaintiffs moved to strike out portions of the Statement of Defence. The Defendant pleaded that the action was frivolous and vexatious and intended to harass and intimidate the Defendant and that it amounted to an abuse of process. In its Statement of Defence, the Defendant

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stated that the Plaintiffs had threatened numerous jean manufacturers and/or vendors with legal action and had in fact commenced actions against some manufacturers/vendors of jeans in Canada. [34] The motions judge held that the Defendant supported its allegations with Statements of Fact. The Federal Court of Appeal upheld the motions judge. [35] The Plaintiffs in that case argued that the motive for bringing the lawsuit did not constitute a defence and that the allegations made by the Defendant were immaterial and irrelevant and would prejudice and delay the fair trial of the action. The Defendant wanted to establish that the abuse of process resided in the Plaintiffs action or course of conduct which was designed to harass the Defendant and other users of the trademark. [36] The Federal Court of Appeal concluded that the relevant portion of the impugned paragraph alleging harassment and intimidation stood to be decided on the principles applicable to an abuse of process of the Court and in that context motive was highly relevant. [37] Justice Letourneau writes at paragraphs 9 to 13:

9 The concept of abuse of process has developed both in substantive and procedural law. It is well settled law, from the point of view of substantive law, that an abuse of process is an actionable tort. As Henry J. stated in Tsiopoulos v. Commercial Union Assurance Co. when dealing with a counterclaim for damages for abuse of process: This cause of action arises when the processes of law are used for an ulterior or collateral purpose. It is defined as the misusing of the process of the courts to coerce someone in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate. It occurs when the process of the court is used for an improper purpose and where there is a definite act or threat in furtherance of such purpose.

136.

Defendants have applied Under the Rules of Court, Rule 27.09 Striking Out a

Pleading or Other Document, for an order striking out the Plaintiffs entire Original March 4, 2011 Statement of Claim, and the September 8, 2011 Amended Statement of Claim. Rule 27.09, provides for the striking out of pleadings, portions thereof or other documents which are scandalous, frivolous, vexatious, or otherwise an abuse of the court.

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The Plaintiff claims do not meet the criteria which would allow this Court to strike the Plaintiffs claims.

137.

The Defendants, did complain that the Plaintiffs Claim is Lengthy, the Rules of

Court do not bar a lengthy claim, when a lengthy claims is required to properly and accurately describe the Plaintiffs claim. Plaintiff is self represented, so the Plaintiff did provide what was apparently necessary to accurately draft the Claim.

138.

The Defendants claim, that Plaintiffs claim is Convoluted, repetitive,

ambiguous, and contain unnecessary or irrelevant allegations, are without foundation, are raised only for annoyance, cannot possibly succeed, have and will cause unnecessary anxiety, trouble and expense, and generally are improperly drafted.

139.

Plaintiff Andre Murray did underline the entirety of the Amended Claim because

of the substantial drafting changes and editing which did occur to the original claim. There is no Rule of Court which bars this practice, further, this did indicate to the Defendants the substantial drafting changes which did occur.

140.

The Defendants claim, that the Plaintiff failed to comply with rules in drafting

claims, but any drafting deficiencies may be amended if necessary and that is not a valid reason to strike the entirety of someones claim. It is illogical that the Defendants claim that it is unfair for the Defendants to reply to the Plaintiffs claims because they are badly drafted, yet wish to have the Plaintiffs claim struck unjustly, unheard on its merits because of minor drafting deficiencies.

Rules 27.10 141. Rules of Court Rules 27.10 is reproduced below as follows: 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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When Amendments May Be Made (2) A party may amend his pleading (a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action, (b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the persons consent, or (c) with leave of the court. How Amendments Made (3) A party who amends a pleading shall file with the clerk a copy of the amended pleading with the changes therein underlined where possible. 142. The Defendants have repeatedly claimed that Plaintiff Andre Murray did have to

acquire consent of all the parties to the Action and or have Leave of the Court, before filing the Amended Notice of Action. This position is in error and not according to the Rules of Court. Nowhere in the Rules is it stated that there is a requirement for the Parties to Consent to the Amended or Leave to be granted prior to filing the Amended Notice of Action and Statement of Claim.

143.

May it please the Honorable Court; 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 27.10 and 2.01 beginning at the end of 6 through to page 8, the full citation was quoted above, this excerpt bears repetition as follows: 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.

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144.

In McIntosh v. Jones Heward, 2007 NBQB 13 (CanLII) Justice Peter S. Glennie

did address the following regarding Rule 27.10, from paragraph 13 throught oand including paragraph as follows [13] Rule 27 grants a wide discretion to the Court to allow an amendment to pleadings. Generally an amendment will be allowed if it can be done without prejudice to the other side or if the prejudice can be compensated with costs. See: Wilson Roofing Ltd. v. Wayne, [1985] N.B.J. No. 120; Triathlon Leasing Inc. v. Juniberry Corp. and Hong 1995 CanLII 6225 (NB CA), (1995), 157 N.B.R. (2d) 217 (C.A.). [14] In Bchard v. Ouellet reflex, (1999), 210 N.B.R. (2d) 246 (C.A.), Drapeau, J.A., as he then was, described the test when considering an amendment to pleadings as follows at paragraph 5: The test set out in current caselaw focuses on the prejudice caused to the opposite party. See, for example, Triathlon Leasing Inc. v. Juniberry Corp. and Hong 1995 CanLII 6225 (NB CA), (1995), 157 N.B.R. (2d) 217; 404 A.P.R. 217 (C.A.). Any amendment to pleadings must be allowed unless it would cause prejudice to the other party that cannot be adequately compensated by costs and, where warranted, by setting appropriate conditions, including adjournment. Even when a motion to amend raises a new issue, it must be granted unless it would result in prejudice that cannot be remedied. [15] The Court generally looks favourably on motions to amend pleadings, particularly where the proposed amendment does not involve the withdrawal of an admission. See: Bourque Estate (Trustee of) v. Cormier, 2006 CarswellNB 291 or, where there is no prejudice,: Forest Protection Ltd. v. Bayer AG reflex, (1996), 178 N.B.R. (2d) 129 (N.B.Q.B.) per Justice P.S. Creaghan at paragraph 72. [16] It should be borne in mind that the Third Party in this matter was added as a result of a motion by Jones Heward nearly two years after examinations for discovery were first held. The Third Party was required to file a Statement of Defence to Third Party Claim within a set period of time and he did so. [17] Counsel for the Third Party asserts that Jones Heward has not established that it will suffer any prejudice by the amendments. [18] Counsel for Jones Heward asserts that the draft Amended Statement of Defence to Third Party Claim and the Counterclaim do not comply with the rules applicable to all pleadings as it cannot be said to be a concise statement of material facts. He says the amended pleading consists of immaterial argument

64

and is improper, frivolous, vexatious, prejudicial, and constitutes an abuse of process which will delay the fair trial of this action. [19] In New Brunswick Telephone Co. Ltd. v. John Maryon International Ltd.; John Maryon & Partners Ltd. & Dinnen Construction (Atlantic) Ltd., [1978] 21 N.B.R. (2d) 283 (Q.B.), the Court concluded that pleadings have several purposes, namely: to make the trial on the issue more simple and exact; to enable a party to know more clearly the case he must meet; to make the facts and issues clear to hasten settlement; and where settlement is not possible, to enable the Court and the parties to reach a just conclusion of the dispute. [20] A relevant factor to be considered by a Court on a motion to amend pleadings is whether the proposed amendments comply with the general rules of pleading set out in the Rules of Court. As Justice Daigle, as he then was, recognized in Givskud et al. v. Kavanaugh et al. reflex, (1994), 147 N.B.R. (2d) 1, Rule 27.10 must be interpreted "(t)o avoid causing prejudice to opposing parties " and " there must be strict compliance with the cardinal rule of pleadings set out in the first part of Rule 27.06 ". [21] In Triathlon Leasing Inc. v. Juniberry Corp. supra, Ryan, J.A. reviews the factors to be considered by a Court in deciding whether to grant a party leave to amend its pleadings, which include: Did the proposed amendment raise a new issue or was it a 'proper and permissible' 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." 145. Relevant factors to be considered by a Court on a motion to amend pleadings is

whether the proposed amendments comply with the general rules of pleading set out in the Rules of Court. Even when a motion to amend raises a new issue, it must be granted unless it would result in prejudice that cannot be remedied. The Court generally looks favorably on motions to amend pleadings, particularly where the proposed amendment does not involve the withdrawal of an admission. Plaintiff asserts that the Defendants have not established that they will suffer any prejudice by the amendments.

65

146.

Schelew v. Schelew et al., 2006 NBQB 64 (CanLII), Justice Peter S. Glennie did

provide the following regarding application of Rule 27.10 of the Rules of Court from paragraph 20 through to and including paragraph 22 a follows: [20] As a general rule, leave to amend pleadings will be granted by the Court unless prejudice will result which cannot be compensated by costs or an adjournment. However, while that may be the general rule, there is nevertheless an obligation that the amendments must be necessary for the purpose of determining the real questions in issue. In Modern Construction (1983) Ltd. v. Enbridge Gas New Brunswick Inc., [2003] N.B.J. No. 396, Enbridge was appealing a decision allowing Modern Construction to amend its Statement of Claim. Enbridge argued that the amendments brought into play the Mechanics Lien Act, which Enbridge argued was wholly inapplicable to the facts of that case. Chief Justice Drapeau writes as follows at paragraphs 15 and 16: 15. Rule 27.10 of the Rules of Court provides that unless prejudice will result that cannot be compensated by costs or an adjournment, the court may, in its discretion, grant leave to amend any pleading on such terms as may be just. The rule in question goes on to obligate the court to allow any amendment that is necessary for the purpose of determining the real questions in issue. The jurisprudence on point supports the view that amendments to pleadings that comply with the rules of pleadings found in Rule 27 should be only very rarely refused. That approach is shaped by the direction articulated in Rule 1.03, namely that the rules are to be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on the merits. As well, there is ample authority for the proposition that any decision to allow an amendment to a pleading, being discretionary in nature, calls for the application of a standard of appellate review impregnated with great deference for the judgment exercised in first instance.

[21]

16. That said, an amendment to a pleading designed to bring into the mix a clearly irrelevant fact or inapplicable statutory provision must be denied. See

66

Braid Estate v. Whistler River Adventures Ltd., [2000] B.C.J. No. 2442 (S.C.; Dorgan J.)(Q.L.). While there is no specific New Brunswick rule of court on point, that proposition flows logically, inter alia, from the following: (1) Rule 27.06(1), which requires that every pleading contain a concise statement of the material facts relied upon by the party pleading for his or her claim or defence; (2) Rule 23.01(1)(b) that empowers the court to strike out any pleading that does not disclose a reasonable cause of action or defence; (3) Rule 27.09, which permits the striking out of any pleading, or other document, or any part thereof on the ground that it is frivolous or may prejudice, embarrass or delay the fair trial of the action; and (4) Rule 27.06(14) that obligates a party to plead the specific section that he or she is relying upon when the cause of action or defence is founded upon an Act. It would make no sense to allow an amendment that would then be struck out pursuant to any of those rules. [Emphasis added]

[22]

The onus is on the moving party to demonstrate to the Court that the proposed amendments relate to the trial issues in the matter and are not irrelevant.

147.

The rule in question, Rule 27.10, goes on to obligate the Court to allow any

amendment that is necessary for the purpose of determining the real questions in issue. The jurisprudence on point supports the view that amendments to pleadings that comply with the rules of pleadings found in Rule 27 should be only very rarely refused. That approach is shaped by the direction articulated in Rule 1.03, namely that the rules are to be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on the merits.

Limitation of Actions Act (S.N.B. 2009, c. L-8.5) Section 5 of limitation of actions act PART 2 67

GENERAL LIMITATION PERIODS General limitation periods 5(1)Unless otherwise provided in this Act, no claim shall be brought after the earlier of (a)two years from the day on which the claim is discovered, and (b)fifteen years from the day on which the act or omission on which the claim is based occurred. 5(2)A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a)that the injury, loss or damage had occurred, (b)that the injury, loss or damage was caused by or contributed to by an act or omission, and (c)that the act or omission was that of the defendant. Continuous act or omission 6 If a claim is based on a continuous act or omission, the act or omission is deemed for the purposes of calculating the limitation periods in section 5 to be a separate act or omission on each day it continues. PART 5 CLAIMS BROUGHT AFTER EXPIRY OF LIMITATION PERIOD Claims added to proceedings 21 Despite the expiry of the relevant limitation period established by this Act, a claim may be added, through a new or an amended pleading, to a proceeding previously commenced if the added claim is related to the conduct, transaction or events described in the original pleadings and the conditions set out in one of the following paragraphs are satisfied: (a)the added claim is made by a party to the proceeding against another party to the proceeding and does not change the capacity in which either party sues or is sued; (b)the added claim adds or substitutes a defendant or changes the capacity in which a defendant is sued, but the defendant has received, before or within 6 months after the expiry of the limitation period, sufficient knowledge of the added claim that the defendant will not be prejudiced in defending against the added claim on the merits; (c)the added claim adds or substitutes a claimant or changes the capacity in which a claimant sues, but the defendant has received, before or within 6 months after the expiry of the limitation period, sufficient knowledge of the added claim that the defendant will not be prejudiced in defending against the added claim on the merits, and the addition of the claim is necessary or desirable to ensure the effective determination or enforcement of the claims asserted or intended to be asserted in the original pleadings. Delay caused by defendant

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148.

Limitation of Actions Act (S.N.B. 2009, c. L-8.5), allows exceptions to the 5(2)A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a) that the injury, loss or damage had occurred, (b) that the injury, loss or damage was caused by or contributed to by an act or omission, and (c) that the act or omission was that of the defendant.

General limitation periods, as provided by section 5(2) as follows:

149.

Pursuant to section 5(2)(b) and (c) A claim is discovered on the day, on which

the claimant first knew or ought reasonably to have known that the injury, loss or damage was caused by or contributed to by an act or omission, and that the act or omission was that of the defendants. January 13, 2011, pursuant to a Right to Information and Protection of Privacy Act, request, NEW BRUNSWICK POLICE COMMISSION did partially make available documents as requested by Andre Murray (NEW BRUNSWICK POLICE COMMISSION File: 2110 C- 09- 09 further, NEW BRUNSWICK POLICE COMMISSION File: 2010 RTIPPA- 02). I Andre Murray, subsequently, having reviewed subject NEW BRUNSWICK POLICE COMMISSION File: (File: 2110 C- 0909 ) 2010 RTIPPA- 02, subject investigation report summary and conclusion revealed the cause of Applicant Andre Murrays battery and arrest resulted and caused by persons names being obscured - the following is an exact excerpt: Investigative Summary blacked out, a blacked out has provided a statement that he observed a male closely matching the description of a suspect in some type of crime, as a result he contacted the police station, and Cst. Debbie Stafford attended the area and attempted to stop and identify the individual. 150. The partial disclosure did reveal that FREDERICTON POLICE FORCE , was

called by a person who gave a description of someone matching the Plaintiffs description, engaged in some undisclosed illegal activity which was the actual reason why the Plaintiff was accosted May 7, 2008. Before this subject RTIPPA disclosure, I Andre Murray was never informed of the reason, members of FREDERICTON POLICE FORCE , had attended the Plaintiffs location was because of the herewithin mentioned phone call. This revelation connects the May 7, 2008 event to the March 5, 2008, because

69

both, events were caused by an unnamed caller, making fraudulent representation to FREDERICTON POLICE FORCE , which was the causative event. The above mentioned Investigation summary was the evidence which caused Plaintiff Andre Murray to first know that the injuries suffered at the hands of FREDERICTON POLICE FORCE , were caused primarily by or contributed to by an act of the unnamed callers, sending FREDERICTON POLICE FORCE to the Plaintiffs location.

151.

The two year time calculation regarding the Limitations of Actions Act, did

begin counting at that time of January 13, 2011, regarding, discovery of the cause of the incident. Because both the March 5, 2009 and the May 7, 2008 incidents were caused by a unnamed caller, instructing FREDERICTON POLICE FORCE to attend Plaintiff Andre Murrays location, the two incidents are joined in cause. Based on this new time calculation Plaintiff Andre Murray did have until January 12, 2013 to file an Action, in this case Plaintiff Andre Murray chose to Amended existing Pleadings. Further, the Defendants were provided sufficient knowledge of the added claims, that the Defendants will not be prejudiced in defending against the added claim on the merits. The Defendants were made aware that the Plaintiff was seeking remedy, and pursuing these claims, by being contacted regarding investigations, into both may, 7, 2008 and March 5, 2009 incidents, conducted because of the Plaintiffs filed complaints regarding Police Conduct, further, the Defendants were contacted when the Plaintiff did make application for information pursuant to RTIPPA, the Defendants were contacted and asked if they would consent to disclosure of the information requested by the Plaintiff.

Equity 152. follows: 26(6) The Court and every judge thereof shall recognize and take notice of all equitable estates, titles and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Supreme Court in Equity would have recognized and taken notice of the same in any suit or proceeding duly instituted therein before the commencement of The Judicature Act, 1909. Judicature Act, RSNB 1973, c J-2 section 26(6) and 26(8), regards equity as

70

26(8) Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the Court and every judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations and liabilities existing by the common law or created by any statute, in the same manner as the same would have been recognized and given effect to by the Supreme Court, either at law or in equity, if The Judicature Act, 1909 had not been enacted. 153. The Court may at any time dispense with compliance with any rule, unless the

rule expressly or impliedly provides otherwise.

154.

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.

155.

The Court may at any time dispense with compliance with any rule, unless the

rule expressly or impliedly provides otherwise when the balance of convenience favors the granting of the relief sought.

156.

Pursuant to Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court the Court,

may, extend time required for filing and service of a Court document;

157.

Maxim - Neminem laedit qui jure suo utitur. A person who exercises his own

rights injures no one.

158.

Maxim - Bonum judex secundum aequum et bonum judicat, et aequitatem

stricto juri praefert. A good judge decides according to justice and right, and prefers equity to strict law. Co. Litt. 24.

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159.

Maxim - In all affairs, and principally in those which concern the administration

of justice, the rules of equity ought to be followed.

160.

The legal website duhaime.org provides the following insight into the principles Equity Definition: A branch of English law which developed hundreds of years ago when litigants would go to the King and complain of harsh or inflexible rules of common law which prevented "justice" from prevailing. In the 1870s, England and its colonies merged the courts but not the doctrines (in statutes called "judicature"). Although under the umbrella of a unified judiciary, where the principles conflicted, equity was stated to have precedence over the common law. Ontario's initiative is a good sample, now known as the Courts of Justice Act (1990 RSO Chapter C-43; v. 2007), where at 96:

of equity: at (http://www.duhaime.org/LegalDictionary/E/Equity.aspx)

It gives equity rank over the common law ("where a rule of equity conflicts with a rule of the common law, the rule of equity prevails"); Merges the Courts by requiring that there shall no longer be a separate court for equity ("Courts shall administer concurrently all rules of equity and the common law"); and Only federally-appointed judge, also known as "superior-level courts", may consider equity claims or grant equity relief ("only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided").

A whole set of equity law principles were developed based on the predominant fairness, reason and good faith characteristics of equity as reflected in some of its maxims: equity will not suffer a wrong to be without a remedy or he who comes to equity must come with clean hands. 161. The New Brunswick Judicature Act, RSNB 1973, c J-2, also provides for

equity law principles based on the predominant principles of fairness, reason and good faith which are characteristics of equity, in the following section 26(8), 32 and 39 (emphasis added): 26(8) Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other

72

express provisions of this Act, the Court and every judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations and liabilities existing by the common law or created by any statute, in the same manner as the same would have been recognized and given effect to by the Supreme Court, either at law or in equity, if The Judicature Act, 1909 had not been enacted. 32 Stipulations in contracts as to time or otherwise, which would not before the commencement of The Judicature Act, 1909 have been deemed in a Court of Equity to be or to have become of the essence of such contracts, shall receive in the Court the same construction and effect as they would heretofore have received in Equity. 39 Generally, in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail. 162. Rule 1.03(2) of the Rules of Court direct the Court that these rules shall be

liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits (to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

163.

Rule 2.01 of the Rules of Court provides the Court with the express tool to

dispense with compliance with any rule (the rules of equity shall prevail).

164.

Rule 2.02 of the Rules of Court compels Courts to overlook procedural errors

and to take appropriate measures to secure the just determination of the matters in dispute between the parties ( fairness, reason and good faith)

165.

Rule 2.04 of the Rules of Court direct the Court, that in any matter of procedure

not provided for by the Rules of Court or by an Act, the court may, on motion, give directions.(to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

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166.

Rule 3.01 of the Rules of Court direct the Court on such terms as may be just, to

extend the time prescribed by an order or judgment or by the Rules of Court.(to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

167.

As a self Represented individual, one may makes mistakes and file and or serve

documents to late, but the Rules of Court and equity which is in essence the fairness that should be present in all Courts, when the parties do want to pursue remedy. 3. 168. Associated Maxims are as follows:

I. Lex aequitate gaudet; appetit perfectum; est norma recti. The law delights in equity; it grasps at perfeccion; it is a rule of right.

II. Equitas sequitur legem. Equity follows the law.

III. Lex respicit aequiiatem. The law regards equity.

IV. Ratio in jure aequitas inteera. Reason in law is impartial equity.

V. Nulli vendemus, nulli negabimus, aut differemus rectum vel justitian. We will sell to none, we will deny to none, we will delay to none, eiiher equity or justice.

VI. Judex ante oculos aequitatem semmer habere debet. A judge ought always to have equity beeore his eyes. 4. Rule 1.03, 2.01. 2.02, 2.04 and 3.02 169. Maxim - Justitia nemine neganda est. Justice is not to be denied.

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170. justice.

Maxim - Lex non deficit in justitia exibenda. The law does not fail in showing

171.

The Rules of Court are that which enables rights to be delivered and claims to be

enforced. As such, a Court should interpret and apply the Rules of court to ensure, to the greatest extent possible, that there is a determination of the substantive matters in dispute between the Parties, unless the application of the Rules of Court would result in a serious prejudice or injustice.

172. follows:

Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court are reproduced as

1.03 Interpretation (1) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Judicature Act apply to these rules. (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. (3) The arrangement of these rules and their title headings are primarily intended for convenience, but may be used to assist in their interpretation. 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. 2.04 Where No Procedure Provided In any matter of procedure not provided for by these rules or by an Act the court may, on motion, give directions. 3.02 Extension or Abridgment

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(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. (3) Where the time prescribed by these rules relates to an appeal, only a judge of the Court of Appeal may make an order under paragraph (1). (4) Any time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by consent. 173. Regarding Rules Rule 2.02, 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 beginning at page 7 through to page 8 as follows: 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. 174. 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. May it please the Honorable Court the found 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.

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175.

The word enjoins was of particular note to the Applicant, the definition is

provided below from Black's Law Dictionary (8th ed. 2004) , Page 1608 describes ENJOIN as follows: enjoin, vb. - 2. To prescribe, mandate, or strongly encourage 176. 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) REFERENCE: (please see paragraph 11 to 19 that Honorable Court must consider what is necessary to see that justice is done? as follows:

[15] 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: 6 "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." 7The 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... [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.

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177.

In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A. LaVIGNE

stated the following regarding granting an extension of time.; REFERENCE: (Please see at paragraph 16 19),: 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. 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. 178. In K.C. v. New Brunswick (Health and Community Services), 1998 CanLII

17954 (NB CA) ( http://canlii.ca/t/25rlz) Chief Justice J. ERNEST DRAPEAU, J.A., stated the following regarding Rule 3.02(1) as follows: [Page 3] Rule 3.02 (1) permits the court to extend the time prescribed by an order, judgment or the rules. Thus, where the statute does not fix a deadline the court may extend the time under the authority of Rule 3.02(1). 179. In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The Honorable Chief Justice

J. Ernest Drapeau regarding whether the appellant had unduly delayed preparation and perfection of his appeal, REFERENCE: (staring at page 1 through to and including page 3) stated as follows:

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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. 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 appellant. We fix those costs at $750. There will be no order of costs in favor of Par Syndication Group Inc. 180. Plaintiff Andre Murray does request that this Court provide the equitable remedy

of granting the relief sought by the Plaintiff.

Cost Orders in favor of self-represented litigants 181. Plaintiff offers that after due consideration, this Honorable Court may conclude

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

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182.

For convenience of this Honorable Court reproduced below Rule 59.01, of the

Rules of Court 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. 183. As similarly stated n McNichol v. Co-operators General Insurance Company,

2006, supra, this Honorable Court may make the similar observations and consider before awarding costs with regard to the blatantly frivolous, irresponsible and callous behavior, of Defendants in this matter.

184.

Following the lead of the above Court in McNichol v. Co-operators General

Insurance Company, 2006, supra, this Honorable Court may find it appropriate to Order the Defendants to pay costs throughout, which may be similarly fixed at $5,000, in addition to all reasonable disbursements.

185.

As similarly stated in Fong, et al v. Chan, et al, 1999, Costs should only be

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

186.

As is well established by the Courts lay litigants may recover costs, including

counsel fees; this is a clear trend of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

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187.

As stated in Fong, et al v. Chan, et al, 1999, as a matter of principle, it seems

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

188.

As stated above in Fong, et al v. Chan, et al, 1999, 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. Remaining consistent with the above here within paragraph trial judges may use their discretion to award costs to self-represented litigants. 189. Self-represented lawyers (members of Law Society) are entitled to indemnity on

the time is money or opportunity cost rationale and it is difficult to appreciate why the opportunity cost rationale should not be applicable to self-represented litigants, such as the Plaintiff in this matter, before this Honorable Court.

190.

Self-represented litigants must possess skills for which they customarily are

remunerated on their 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 self-represented lay litigants who are able to demonstrate the same loss.

191.

Costs may be awarded to those lay litigants who can demonstrate devoted time

and effort to do work, which ordinarily would have been done by a lawyer retained for same litigation, further, it is consistent that lay litigants incurred an opportunity cost by foregoing their usual remunerative activity; awarding of additional Costs are a useful tool of the Court to encourage settlements and or to discourage or sanction inappropriate behavior, as the case may be.

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192.

Having considered the here within above provided arguments for cost, this

Honorable Court may find it appropriate to Order the Defendants to pay costs throughout, in addition to all reasonable disbursements.

ALL OF THIS respectfully submitted this 19th day of January, 2012. ____________________ Andre Murray

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