oral presentation, prepared for january 19, 2012, hearing to compliment filed january 17, 2012,...

7/29/2019 Oral presentation, prepared for January 19, 2012, Hearing to compliment filed January 17, 2012, Pre-Hearing Brief

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Introduction

The grounds to be argued

1. The proposed amendments state legally valid claims.

2. On motion at any stage of an action the Honorable Court may grant leave toamend a pleading on such terms as are just, unless prejudice would result that could not

be compensated for by costs or an adjournment, in this case no such prejudice exists.

3. Every person whose presence as a party is by law necessary to enable the courtto adjudicate effectively and completely on the issues in a proceeding shall be joined as a

party to the proceeding.

4. Despite the expiry of the relevant limitation period established by Limitation ofActions Act, SNB 2009, c L-8.5, 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 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.

5. There is a common series of events underlying the Plaintiffs claims, tying theseparate Defendants into a larger ongoing theme.

6. The plaintiff has a separate claim against TRINA RODGERS, NEILRODGERS, CONSTABLE PATRICK SMALL,CONSTABLE DEBBIE STAFFORD,

CONSTABLE MICHAEL SAUNDERS, and JOHN DOE 2 are personally arising out of

these transactions, then clearly they should be added as a party so that all claims can be

adjudicated effectively and completely in one proceeding.

7. The objectives of the compulsory joinder principle in court actions , were, andstill are, simple enough: from the viewpoint of the Court, to do a complete job on the


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controversy in one sitting; from the view-point of those already parties, to protect them

against the consequences of subsequent litigation reaching inconsistent results; from the

viewpoint of those not made parties but by the rule required to be brought in, to assure

that their practical out-of-court situation would not be adversely affected by changes in

the status quo wrought in consequence of the judgment.

8. 5.01(1) Persons may be joined as defendants because in a proceeding, a plaintiffmay join any claims he has against an opposite party whether or not they are being made

by him in the same or different capacities.

9. Persons may be joined as defendants, although, it is not necessary that everydefendant be interested in all the relief claimed or in every claim included in a

proceeding.

10. Persons may be joined as defendants or where relief is claimed against them(whether jointly, severally, or in the alternative) arising out of the same transaction,

occurrence, or series of transactions or occurrences,

11. Persons may be joined as defendants or where a common question of law or factmay arise in the proceeding,

12. Persons may be joined as defendants or where there is doubt as to the person orpersons from whom the plaintiff or applicant is entitled to relief.

13. Persons may be joined as defendants or where damage or loss has been causedto the same plaintiff by more than one person, whether or not there is any factual

connection between the several claims apart from the involvement of the plaintiff, and

there is doubt as to the person or persons from whom he is entitled to relief or the

respective amounts for which each may be liable,


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14. Persons may be joined as defendants where their presence in the proceeding maypromote the convenient administration of justice.

15. The court may, on such terms as may be just, extend or abridge the timeprescribed by an order or judgment or by Rules of Court on a motion for extension of

time, that which, may be made either before or after the expiration of the time prescribed.

16. The court may at any time dispense with compliance with any rule, unless therule expressly or impliedly provides otherwise.

17. A procedural error, including failure to comply with these rules or with theprocedure 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.

18. Defendant will prove that the balance of convenience favors the granting of therelief sought,

19. Plaintiff Andr Murray relies on the Limitation of Actions Act, SNB 2009, c L-8.5, Section 5(2), Section 6, further, regarding Claims added to proceedings Section 21

(a) and Section 21(b).

20. The Plaintiff Andr Murray relies on Rules of Court governing Persons whomay be joined as Defendants, Rules of Court 5.01 (1) and (2), Required Joinder of

Necessary Parties; Rule 5.03 2 (a), (b), (c), (d), (e), Multiple Defendants or Respondents.

21. The Plaintiff Andr Murray relies on Rules of Court governing Amendment ofPleadings, Rule 27.10, 1 and 2 (a), (b) and or (c).

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


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22. May 7, 2008, I Plaintiff Andr Murray while travelling by bicycle within THECITY OF FREDERICTON members of FREDERICTON POLICE FORCE intercepted

me, then without warning physically attacked me, thereby inflicting significant injuries

upon me during a unprovoked arrest procedure.

23. March, 4, 2011 I Andre Murray did file aNOTICE OF ACTION WITHSTATEMENT 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 this Action was within the general limitations period

according Limitation of Actions Act (S.N.B. 2009, c. L-8.5), section 5(1).

24. After filing theMarch, 4, 2011 aNOTICE OF ACTION WITH STATEMENTOF 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 endeavour to have heard, two referrals to the Court of

Queens Bench, the matter of a referral was rescheduled several times, until finally heard

August 11, 2011, regarding both Court File Numbers. F/M/1/11 and F/M/22/11. The

decision is still pending.

25. I Andre Murray did draft an AmendedNOTICE OF ACTION WITHSTATEMENT OF CLAIM ATTACHED (FORM 16A), to include the May 7, 2008

incident and add as Defendants, parties who I 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 most accurately express the Plaintiffs Claims. 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.

26. 3:55 PM the 2nd day, of September, 2011, I Andr Murray, served, DefendantsTHE CITY OF FREDERICTON and others, with a NOTICE OF ACTION with

STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011, Court


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File Number: F/C/45/11 by leaving a copy, with (THE CITY OF FREDERICTON)

Acting City Administrator, according to Rules of Court, Rule 18.02(1)(b), which is

within the time limitations for Service, according to the Rules of Court, Rule 16.08 Time

for Service. Through the rule of agency (maxim qui facit per alium facit per se), Serving

THE CITY OF FREDERICTON is considered service of all agents for THE CITY OF

FREDERICTON, namely all members of FREDERICTON POLICE FORCE.

27. I Andre Murray did complete editing anAMENDED NOTICE OF ACTIONwith STATEMENT OF CLAIM ATTACHED (FORM 16A), therefore, I did file same at

the earliest opportunity.

28. September, 8, 2011, I Andre Murray did file (within 6 days of service of originalclaim) aAMENDED NOTICE OF ACTION with STATEMENT OF CLAIM

ATTACHED (FORM 16A), Dated September, 8, 2011, Court File Number: F/C/45/11

with the Court Client Services, Fredericton, New Brunswick, this Amended Action was

included the May 7, 2008 incident, and added further Defendants, regarding the March 5,

2009 incident.

29. 2:09 PM the 9th day, of September, 2011, , I Andr Murray, served, DefendantsTHE CITY OF FREDERICTON and others, a AMENDED NOTICE OF ACTION with

STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8, 2011, Court

File Number: F/C/45/11 by sending to City Solicitor Michelle Brzak, for subject named

Defendants THE CITY OF FREDERICTON and others a facsimile of herewithin above

described documents, accompanied by a copy of a cover page marked by telephone

transmission to City Solicitors Fax 506-460-2128.

Limitation of Actions ActSection 21

30. I Plaintiff Andre Murray, did add a claims regarding a May 7, 2008 incident,through an Amended pleading, specifically a AMENDED NOTICE OF ACTION WITH

STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8, 2011, Court


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File Number: F/C/45/11, to a proceeding (Action) previously commenced by aNOTICE

OF ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March,

4, 2011 Court File Number: F/C/45/11, before the close of pleading as defined by Rules

of Court Rule 27.05. The added claim is related to the conduct, transaction or events

described in the original pleadings. The common event, or cause in both events is that a

unnamed person or persons did provide fraudulent representations to FREDERICTON

POLICE FORCE, which resulted in members of the FREDERICTON POLICE FORCE,

arriving at Plaintiff Andre Murrays location and subsequently Plaintiff Andre Murray

was injured. Both events were cause by the same set of circumstances and Plaintiff Andre

Murray believes that through discovery it will be revealed that both events were cause by

the same individuals, namely Defendant Neil Rodgers and or Defendant Trina Rodgers.

31. The added claims are made by Plaintiff Andre Murray, a party to the originalproceeding against other parties to the original proceeding, namely Defendant THE CITY

OF FREDERICTON, Defendant FREDERICTON POLICE FORCE and Defendant

Chief of Police Barry MacKnight, further these claims do not change the capacity in

which any parties sues or is sued. Defendant Constable Small had additional claims made

against him because he was present and participated at each incident, one being May 7,

2008 and the second being March 5, 2009.

32. Further, the amended claim, adds Defendants, but the Defendant have received,before or within 6 months after the expiry of the limitation period, sufficient knowledge

of the added claim that the Defendants will not be prejudiced in defending against the

added claim on the merits;

Limitation of Actions Act

Section 5(2)

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


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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

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.

34. The partial disclosure did reveal that FREDERICTON POLICE FORCE, wascalled 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.

35. The two year time calculation regarding the Limitations of Actions Act, didbegin 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


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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.

36. The additional claims, contained in the AMENDED NOTICE OF ACTIONWITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8,

2011, Court File Number: F/C/45/11 were served upon THE CITY OF FREDERICTON

and FREDERICTON POLICE FORCE within 7 days of service of the Original NOTICE

OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated

March, 4, 2011 Court File Number: F/C/45/11 and most notably before the close of the

pleadings. All the other Defendants to the Action were served both original Action and

the Amended Action at the same time, all before the close of pleadings.

37. The Limitation of Actions Act, allows that if a Continuous act occurs, such as inthis case where a unnamed caller, (the Plaintiff alleges that this is Defendant Neil

Rodgers and or Defendant Trina Rodgers) is calling FREDERICTON POLICE FORCE

and providing fraudulent representation regarding the Plaintiff, as a consequence, General

limitation periods are extended and for the purposes of calculating the limitation periods

in section 5, to be a separate act or omission on each day it continues, therefore the time

calculation, is counted from two years from the day of the new act occurs in the

Continuous act.

Limitation of Actions Act

Section 6


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38. If Plaintiff Andr Murray was only relying on Section 6 of the Limitations ofAction Act, the time limits prescribed by the Limitations of Action Act for the May 7,

2008 incident would have been extended to the same time allowance as applied to the

March 5, 2009 incident, because of the continuous act, regarding the unnamed caller.

The Plaintiff could have filed the Action regarding the May 7, 2008 incident the same

time, in which the original March 4, 2011 claim was filed, then the Defendants would

have been required to be served by September, 4, 2011. September 4, 2011 is a Sunday,

so service would have been acceptable on the following day, September 5, 2011. The

Plaintiff did in fact serve the City of Fredericton with the Amended Claim on the 9th day,

of September, 2011. The difference in time would have only been 4 days. Defendants

THE CITY OF FREDERICTON and FREDERICTON POLICE FORCE, and through

agency all other members of FREDERICTON POLICE FORCE, would have to

demonstrate with evidence that they were somehow materially prejudiced in some

meaning full way, further, that 4 days made the difference, in limiting their ability to

Defendant the Action of its merits.

39. Regarding Defendant Neil Rodgers and Defendant Trina Rodgers, they wereboth served on the 15th day, of September, 2011. The difference in days between

September 5, 2011 and September 5, 2011, would only have only been 10 days.

Defendant Neil Rodgers and Defendant Trina Rodgers, would have to demonstrate with

evidence that they were somehow materially prejudiced in some meaning full way,

further, that 10 days made the difference, in limiting their ability to Defendant the Action

of its merits.

40. The Plaintiff Andr Murray has fulfilled the requirements of Section 5(2),Section 6, Section 21 (a) and Section 21(b) of the Limitation of Actions Act, SNB 2009,

c L-8.5, therefore the general limitation period of the act is no bar to the Plaintiffs claims

being heard on their merits:

Rules of Court

JOINDER OF CLAIMS AND PARTIES


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41. In accordance with Rules 5.01(1) and 5.01(2) Joinder of Claims, I AndreMurray as Plaintiff may join any claims against an opposite party whether or not they are

being made by me in the same or different capacities, in this case those claims are being

made in the same capacity, further more, it is not necessary that every Defendant be

interested in all the relief claimed or in every claim included in a proceeding. In this case

there are two events are in this action, which has six common Defendants, to both of the

May 7, 2008 and the March 5, 2009 events described in this Action.

42. In accordance with Rules 5.02 (2) Required Joinder of Necessary Partieseveryone whose presence is necessary to enable the Court to adjudicate effectively and

completely the matter before it, must be joined as a party. Plaintiff Andre Murray does

assert that the named Defendants are necessary to enable the Court to adjudicate

effectively and completely the matter before it.

43. In accordance with Rules 5.03 (2) Permissive Joinder of Parties Persons maybe joined as Defendants where relief is claimed against them arising out of the same

transaction, occurrence, or series of transactions or occurrences, such as in this case,

regarding the May 7, 2008 incident and the March 5, 2011 incident, both having a

common cause. A common question of law or fact may arise in the proceeding, such as in

this case and further, there is doubt as to the person or persons from whom the plaintiff is

entitled to relief, because of the complicated, vicarious liability issues, whereby it will be

a matter for the Court to decide full and partial liability, how should the damages be

apportioned. This Rule allows that when damage or loss has been caused to the same

Plaintiff by more than one person, whether or not there is any factual connection between

the several claims apart from the involvement of the plaintiff and there is doubt as to the

person or persons from whom he is entitled to relief or the respective amounts for which

each may be liable, Persons may be joined as Defendants. Finally the presence of the

named Defendants in the proceeding may promote the convenient administration of

justice.


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44. In Occo Developments Ltd. v. McCauley, 1998 CanLII 9812 (NB QB) Judge H.H. McLellan Stated the following: The courts tend to favour joinder of claims

relating to the same transaction

45. As stated in Occo Developments Ltd. v. McCauley, 1998, consolidation or trialtogether will generally be ordered, joinder is optional though highly desirable in the

interest of the convenient administration of justice and probably should be ordered in all

cases which meet the criteria, unless it is established that the Order will unduly

complicate or delay the trial or prejudice a party. In this case, the requested Order will not

unduly complicate or delay the trial or prejudice any party. The Defendants have not

claimed prejudice, in any meaningful way in this matter of joinder of parties, the

Defendants are simply trying to use a technicality, though erroneously claimed, to shedthemselves of participation in this action, further, the Plaintiff will experience

inconvenience, and expense if the actions are not consolidated, of having to file separate

Actions against the same parties, and Served them essentially the same paperwork all

over again.

46. In Repap New Brunswick Inc v Pictou, 1996 CanLII 4890 (NB QB) JusticeThomas W. Riordon, does state the position that there would be very little difference in

the commencement of new proceedings or in adding these parties to that proceedings,

therefore he does grant joinder of certain parties at beginning at page 2 through to page 5

27.10 Amendment of Pleadings

47. Pursuant to Rules of Court Rules 27.10(1), this Court may grant leave to amendthe Plaintiffs Notice of Action, 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. Such amendments may be made at any stage of an Action, and specifically in this

case, we are in the very beginning of the Action, remember, the Amended Notice of

Action was filed only 6 days after the Defendants were served the Original Action. To

overcome this permissive Rule, the Defendants would have to provide evidence that

prejudice will result which cannot be compensated for by costs or an adjournment. In this


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case they have not. I will remind the Court that the Defendants filed no affidavit material

whatsoever regarding this Motion.

48. Plaintiff Andre Murray, did file the Amended Notice of Action Dated September8, 2011, before the close of pleadings, and served same upon THE CITY OF

FREDERICTON the next day (September 9, 2011). Calculating, the close of pleading

would provide the Defendant (considering, Notice of Intent to Defend 10 days, Statement

of Defense 20 days, time for filing the reply 10 days), with 40 days, before the close of

pleadings. Plaintiff Andre Murray did serve THE CITY OF FREDERICTON, technically

33 days before the close of pleadings. All other Defendants were served the Amended

Notice of Action the same time as the Original Notice of action.

49. Pursuant to Rules of Court, Rules 27.10(2)(a) Plaintiff Andre Murray mayamend 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.

This would mean that those Amendments which the Plaintiff has made which did not

involve adding parties would be allowed according to the Rules, further do not require

leave of the Court.

50. In this matter before the Court, Plaintiff Andre Murray requires leave only forthose portions of the Amended Notice of Action, which include and necessitates the

addition, of parties to the action.

51. Pursuant to Rules of Court Rules 27.10(2)(b) Plaintiff Andre Murray mayamend his Notice of Action 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 of all Defendants their consent to be added as parties. THE CITY OF

FREDERICTON did provide this written consent, and through the rule of agency all

members of FREDERICTON POLICE FORCE are deemed to have consented as well.

Since Rules 27.10(2)(b) requires the consent of all parties, and as a consequence of


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Defendant Neil Rodgers and Defendant Trina Rodgers refusing to provide this consent,

the threshold is not met.

52. Pursuant to Rules of Court Rules 27.10(2)(c) Plaintiff Andre Murray mayamend his Notice of Action with Statement of Claim Attached with leave of this Court.

This Motion provides the Honorable Court such an opportunity.

53. In Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB CA) JusticeWALLACE S. TURNBULL, J.A. did state the Rules of Court are the vehicle that enables

rights to be delivered and claims to be enforced, the Court should interpret and apply the

rules to ensure, to the greatest extent possible, that there is a determination of the

substantive law, from page 6 to page 8

54. Plaintiff Andre Murray does ask this Court, as similarly asked in Juniberry Corp.v. Triathlon Leasing Inc., 1995, above, did the amendment deprive the Defendants 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"? The answer to

that is simple, No. Please note the Defendants did not file and any affidavit material is

reply to this motion, therefore they have not presented this Court with evidence for

consideration. Accordingly, amendments to pleadings are generally allowed and in this

case they should be alowed. 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.

55. In Michaud v. Robertson, 1992 CanLII 4709 (NB CA) Stratton, CHIEFJUSTICE OF NEW BRUNSWICK, did provide his view of the interpretation to be given

to Rules 1.03(2), 2.02 and 27.10 of the Rules of Court, form page 1 through to page 4 as

follows:

56. A refusal by this Court to grant Plaintiff Andre Murray leave to amend hisSTATEMENT OF CLAIM, will be contrary to the stated purpose and intent of the Rules


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of Court which authorize a judge to permit all amendments necessary "to secure the just

determination of the matters in dispute between the parties".

57. Judicature Act, RSNB 1973, c J-2, section 26 (9) provides as follows:26(9) that as far as possible all matters so in controversy between the said

parties respectively, may be completely and finally determined, and all

multiplicity of legal proceedings concerning any of such matters avoided."

58. Granting of leave to amend will not result in any injustice to the Defendants,further, refusal by this Court to grant leave to amend will only result from the application

of a wrong principle of law, and will not accomplish what justice required in these

circumstances. Refusal to grant leave to amend, would only result in delaying the

proceedings, the incurring of the additional costs involved in the institution of a new

Action against the subject Defendants, multiplicity of legal proceedings and likely require

a new Order at some future date for Joinder of Claims and Parties. The refusal to grant

leave to amend would not result in securing the just, least expensive and most expeditious

determination of the proceedings on the merits as envisioned by Rule 1.03(2).

59. As stated by Chief Justice Drapeau above the words of an Act are to be read intheir entire context and in their grammatical and ordinary sense harmoniously with thescheme of the Act, the object of the Act, and the intention of Parliament Rule 1.03(1)

prescribes that, unless a contrary intention appears, Section 17 the Interpretation Act,

applies to the Rules of Court, therefore Rule 27.10 shall be deemed remedial, and shall

receive such fair, large and liberal construction and interpretation as best ensures the

attainment of the object of the Rule, such as granting the Plaintiffs request, for the Court

to grant leave to Amendment of Pleadings.

Extend Rule 16.08 (1)

60. Plaintiff Andre Murray does request of this Court to extend Rule 16.08 (1) thetime required for service of the Original NOTICE OF ACTION and STATEMENT OF

CLAIM ATTACHED (FORM 16A) Dated March 04, 2011 and AMENDED NOTICE


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OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A) Court File

Date stamped September 8, 2011 pursuant to Rule 2.02, and 3.02 of the Rules of Court;

61. Plaintiff Andre Murray does request of the Court, that the time for service of theAmended Notice of Action, Rules of Court Rule 16.08 Time for Service be extended, so

as to encompass the time that was required to serve all the Parties individually. This

Court clearly has the tools to provide the relief sought through Rule 3.02, the Court may,

extend the time prescribed by these rules.

62. In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A. LaVIGNE,did state regarding the obligation of the Court, which is to see that justice is done, the

Court may use the discretionary powers granted to it in Rule 2.02 and 3.02 in order tosecure the just determination of the matters in dispute between the parties, from

paragraph 21 through to and including paragraph 27

63. It would be a substantial injustice to the Plaintiff to not have the merits of theclaim heard because a minor technicality, of a few days difference in serving times. The

delay in this subject case before the Court is quite short when compared to some of the

delays in the cases above mentioned. There would be no injustice to have the claims

against the Defendants heard on its merits, furthermore, there is the obligation of the

Court, which is to see that justice is done, the Court may 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.

Equity

64. Judicature Act, RSNB 1973, c J-2 section 26(6) and 26, regards equity asfollows:

26(6) The Court and every judge thereof shall recognize and take notice of allequitable 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 inany suit or proceeding duly instituted therein before the commencement of The

Judicature Act, 1909.


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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 ofthis 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 theSupreme Court, either at law or in equity, if The Judicature Act, 1909 had not

been enacted.

65. The Court may at any time dispense with compliance with any rule, unless therule expressly or impliedly provides otherwise.

66. A procedural error, including failure to comply with these rules or with theprocedure 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.

67. The Court may at any time dispense with compliance with any rule, unless therule expressly or impliedly provides otherwise when the balance of convenience favors

the granting of the relief sought.

2

68. 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;

69. Maxim - Neminem laedit qui jure suo utitur. A person who exercises his ownrights injures no one.

70. Maxim -Bonum judex secundum aequum et bonum judicat, et aequitatemstricto juri praefert. A good judge decides according to justice and right, and prefers

equity to strict law. Co. Litt. 24.


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71. Maxim -In all affairs, and principally in those which concern the administrationof justice, the rules of equity ought to be followed.

72. The New Brunswick Judicature Act, RSNB 1973, c J-2, also provides forequity law principles based on the predominant principles offairness, reason and good

faith which are characteristics of equity, in the following section 26(8), 32 and 39

(emphasis added):

73. Rule 1.03(2) of theRules of Court direct the Court that these rules shall beliberally 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).

74. Rule 2.01 of theRules of Court provides the Court with the express tool todispense with compliance with any rule (the rules of equity shall prevail).

75. Rule 2.02 of theRules of Court compels Courts to overlook procedural errorsand to take appropriate measures to secure the just determination of the matters in

dispute between the parties (fairness, reason and good faith)

76. Rule 2.04 of theRules of Court direct the Court, that in any matter of procedurenot 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).

77. Rule 3.01 of theRules of Court direct the Court on such terms as may be just, toextend 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).


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78. As a self Represented individual, one may makes mistakes and file and or servedocuments 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.

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

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

81. 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: 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.

82. 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?

83. In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A. LaVIGNEaddressed the subject of granting an extension of time.; REFERENCE: (Please see at

paragraph 16 19)

84. In K.C. v. New Brunswick (Health and Community Services), 1998 CanLII17954 (NB CA) ( http://canlii.ca/t/25rlz) Chief Justice J. ERNEST DRAPEAU, J.A.,

stated the following regarding Rule 3.02(1)


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85. In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The Honorable Chief JusticeJ. 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)

Cost Orders in favor of self-represented litigants

86. Plaintiff offers that after due consideration, this Honorable Court may concludesimilarly 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.

87. Self-represented lawyers (members of Law Society) are entitled to indemnity onthe 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.

88. Self-represented litigants must possess skills for which they customarily areremunerated 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.

89. Costs may be awarded to those lay litigants who can demonstrate devoted timeand 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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90. Having considered the here within above provided arguments for cost, thisHonorable Court may find it appropriate to Order the Defendants to pay costs throughout,

in addition to all reasonable disbursements.

oral presentation, prepared for january 19, 2012, hearing to compliment filed january 17, 2012,...

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