joint brief opposing 3 defendants motions oral presentation. court file fc-45-11:

7/29/2019 Joint Brief Opposing 3 Defendants Motions Oral presentation. Court file FC-45-11:

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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

The Plaintiff does claim that 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 precludethe enforcement of claims which are derived from the substantive law.

1.03 Interpretation(2) These rules shall be liberally construed to secure the just, least expensive and most

expeditious determination of every proceeding on its merits.

3.02 Extension or Abridgment

(1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend

or abridge the time prescribed by an order or judgment or by these rules.(2) A motion for extension of time may be made either before or after the expiration of

the time prescribed

22.04 Disposition of MotionWhere Only Issue is a Question of Law

(3) Where the court is satisfied that the only issue is a question of law, the court maydetermine 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

(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 beadmitted except

(a) a transcript of a relevant examination, and

(b) affidavits which are necessary to identify a documentor prove its execution.

Section 5 of limitation of actions act

PART 2

GENERAL LIMITATION PERIODS

General limitation periods

5(1)Unless otherwise provided in this Act, no claim shall be brought after the earlier of


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(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 basedoccurred.

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 forthe 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 proceedings21 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 previouslycommenced 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 theproceeding 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 theexpiry 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 aclaimant 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 enforcementof the claims asserted or intended to be asserted in the original pleadings.

Delay caused by defendant

22 If the relevant limitation period established by this Act has expired, but the actions

taken or assurances given by the defendant or the defendants agent in relation to the

resolution of the claim before the expiry of the limitation period caused the claimant toreasonably believe that the claim would be resolved by agreement and therefore to delay

bringing the claim, the claimant may bring the claim within 6 months after the day on

which the claimant first knows or ought reasonably to know that the belief wasunfounded.

Limitation periods


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Notice of claim

Two years from incident

Knowledge of claim

27.09 Striking Out a Pleading or Other Document

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) is scandalous, frivolous or vexatious, or

(c) is an abuse of the process of the court.

27.10 Amendment of PleadingsGeneral Power of Court

(1) Unless prejudice will result which cannot be compensated for by costs or anadjournment, 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 necessaryfor the purpose of determining the real questions in issue.

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 amendedpleading with the changes therein underlined where possible.

Abuse of process

Rule 27.10 no consent before hand

Scandalous frivolous and vexatious

Lengthy claim

Convoluted, repetitive, ambiguous, 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.

Rule 27.10(3) entirety of amended claim changed

Failed to comply with rules in drafting claims


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12. 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

13. The doctrine of inherent jurisdiction operates to ensure that there will always be

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 ofmatters 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 seriousinjustice.

14. 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.


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Rule 1.03 Interpretation

15. 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. 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.

16. 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 theRules of Court enjoins courts to overlook procedural errorsand to take appropriate measures to secure the just determination of the matters

in dispute between the parties.

Rule 2.01, Rule 2.02 and Rule 3.02

17. The Plaintiff requests that the Court 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.

18. 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, 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


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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.

19. 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.Rule 2.02 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.

20. 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 thevarious filed complaints and RTIPPA requests, all of which cause the subject Defendants

to be contacted, regarding these issues.

Striking Pleadings

21. 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.

22. 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

23. 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?


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24. 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

some such radical defect, then the relevant portions of the statement of claim may properly

be struck out.

25. 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.

26. 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.

27. 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

28. 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


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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.

Time limitations

29. 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

30. 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.


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31. 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

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. The liberal amendment

policy of the Rules of Court of New Brunswickwould be undermined, by efforts to

impose on a plaintiff, rigid pleading requirements

Rule 23.01(b)

32. 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.

33. The principles, as referred to above, by Chief Justice Ernest Drapeau, in Sewellv. ING Insurance Company of Canada, 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 actiontenable 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 lookingbeyond 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, theappropriate vehicle to determine prior to trial whether there is factual merit to a

claim;


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(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

34. 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.

35. 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.

36. 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. 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

37. 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


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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.

38. 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

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.

39. 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"

40. 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. 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.

41. 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


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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.

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

Plaintiffs claims.

42. The Defendants, did complain that the Plaintiffs Claim isLengthy, 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.

43. 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.

44. 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.

45. 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

46. 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


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Amended or Leave to be granted prior to filing the Amended Notice of Action and Statement of

Claim.

47. 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

theRules 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.

48. The rule in question, Rule 27.10, goes on to obligate the Court to allow anyamendment 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

49. Limitation of Actions Act (S.N.B. 2009, c. L-8.5), 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 oughtreasonably 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.

50. 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


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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- 09-

09 ) 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.

51. 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

both, events were caused by an unnamed caller, making fraudulent representation to the

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.

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


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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

52. Judicature Act, RSNB 1973, c J-2 section 26(6) and 26(8), recognizes equity.

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

expressly or impliedly provides otherwise.

53. 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.

54. Rule 1.03(2) of theRules 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).

55. Rule 2.01 of theRules of Court provides the Court with the express tool to

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


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56. Rule 2.02 of theRules 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)

57. Rule 2.04 of theRules 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).

58. Rule 3.01 of theRules 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).

59. 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.

Cost

60. 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.

61. 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.


19/19

62. 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.

joint brief opposing 3 defendants motions oral presentation. court file fc-45-11:

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