plaintiffs brief used to oppose defendants three motions jan 19.2012

8/3/2019 Plaintiffs Brief Used to Oppose Defendants Three Motions Jan 19.2012

1/85

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,

-and-

THE CITY OF FREDERICTON,and others

Defendants,

_______________________________________________________

Pre Hearing BriefFiled by Plaintiff ANDRE MURRAY

In response to 3 separate NOTICE OF MOTIONMotion 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 RodgersScheduled to be heard January 19, 2012.

________________________________________________________

Andr MurrayPlaintiffSelf Represented31 Marshall Street,Fredericton, NewBrunswick,E3A 4J8

Leanne MurrayAssociate with

Mcinnes Cooper,

Barker House, Suite 600

570 Queen StreetPO Box 610 Fredericton

NB E3B 5A6

tel +1 (506) 458 1624fax +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 Represented15 Fisher AveFredericton, NB

E3A 4J1

Trina Rodgers

Self Represented15 Fisher Ave

Fredericton, NB

E3A 4J1


2/85

i

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


3/85

ii


4/85

1

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.


5/85

2

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 2010-

RTIPPA-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

RTIPPAsubsequently assignedPolice 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.


6/85

3

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 aNOTICE 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).


7/85

4

13. After filing theMarch, 4, 2011 aNOTICE 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 AmendedNOTICE 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 ACTIONwith 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 ofservice of original claim) a AMENDED NOTICE OF ACTION WITH STATEMENTOF 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 TrinaRodgers;


8/85

5

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

([email protected]) and further, called the office several times to expedite

matters. I indicated to Tanya Ramsay, that I have been advised by the City solicitors


9/85

6

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, DefendantConstable Patrick Small;

27. 10:00 am, the 7th day, of October, 2011, I Andr Murray, served, DefendantSergeant Matt Myers;

28. 10:00 am, the 7th day, of October, 2011, I Andr Murray, served, DefendantConstable Debbie Stafford;

29. 11:00 am, the 9th day, of October, 2011, I Andr Murray, served, DefendantConstable 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 theirvarious 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 shouldnot be used to prevent the delivery of rights; nor should they be used to preclude theenforcement 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


10/85

7

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 bycosts 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

definition of MAY as follows:

may, vb. 1. To be permitted to . [Cases: Statutes 227.C.J.S. Statutes 362369.]2. To be a possibility . Cf. CAN.

3. Loosely, is required to; shall; must . In dozens ofcases, courts have held may to be synonymous with shall or must, usu. in an effortto effectuate legislative intent.

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

definition of SHALL as follows:


11/85

8

shall,vb.1. Has a duty to; more broadly, is required to . This is the mandatory sense that drafters typicallyintend and that courts typically uphold. [Cases: Statutes 227. C.J.S. Statutes 362369.]

2. Should (as often interpreted by courts) .3. May . When a negative word such as not or no precedes shall (as in the example in anglebrackets), the word shall often means may. What is being negated is permission,not a requirement.4. Will (as a future-tense verb) .5. Is entitled to . Only sense1 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


12/85

9

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

45. 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 sowithout contravening any statutory provision. The fundamental purpose (andlimit) on judicial intervention is to do only what is essential to avoid a seriousinjustice.


13/85

10

46. Black's Law Dictionary (8th ed. 2004), at Page 996 provide the definition for

CONTRAVENE as follows:

contravene, vb.1. To violate or infringe; to defy2. To come into conflict with; to be contrary to

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 processdoes not preclude elected bodies from enacting legislation affecting that process.The court's inherent powers exist to complement the statutory assignment of specificpowers, 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 expresslyprovided by statute, they must generally abide by the dictates of the legislature. Itfollows that Parliament and the legislatures can legislate to limit and define thesuperior courts' inherent powers, including their powers over contempt, providedthat the legislation is not otherwise unconstitutional.

49. In ONTARIO (ATTORNEY GENERAL) v. PEMBINA EXPLORATIONCANADA LTD., [1989] 1 SCR 206 at paragraph 22 the Supreme Court of Canada didcite as follows:

And the rule for jurisdiction is, that nothing shall be intended to be out of thejurisdiction 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 anInferior 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


14/85

11

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 andthe Court of Appeal unless some other procedure is provided under anAct.

53. A determination should be in keeping with the general direction contained inRule 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 expensiveand most expeditious determination of every proceeding on its merits.

54. Prejudice is defined by Black's Law Dictionary (8th ed. 2004) , Page 3738 as

follow:

PREJUDICEprejudice,n.1. Damage or detriment to one's legal rights or claims. See dismissalwith prejudice, dismissal without prejudice under DISMISSAL.

legal prejudice. A condition that, if shown by a party, will usu. defeat theopposing party's action; esp., a condition that, if shown by the defendant, willdefeat a plaintiff's motion to dismiss a case without prejudice. The defendantmay show that dismissal will deprive the defendant of a substantive property rightor preclude the defendant from raising a defense that will be unavailable orendangered in a second suit. [Cases: Federal Civil Procedure 1700; PretrialProcedure 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.


15/85

12

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

inBulmer-Woodard v. Bulmer2006 CanLII 30456 (NB C.A.)as follows:

The overriding consideration in assessing an application to extend a timelimit is the need "to do justice in each particular case": seeAtlanticPressure 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) perRyan J.A. at para. 7. InNaderi v. Strong 2005 NBCA 10 (CanLII), (2005),280 N.B.R. (2d) 379 (C.A.), [2005] N.B.J. No. 67 (C.A.) (QL), 2005NBCA 10, at para. 13 this was explained as follows:

[...] to do justice in a particular case requires a balancing of theprejudice to both parties resulting from the decision to grant or refusethe extension of time. An intention to appeal within the time prescribed

and any explanation given by the proposed appellant for missing thelimitation period are factors to be considered together with anyevidence of actual prejudice the delay would cause to the other party.Equally important to the equation is the determination of whether or notthere is a serious issue to be appealed [...] as opposed to the matterbeing frivolous or vexatious, or, stated differently, whether or not thereis an arguable case for consideration by the Court: seeDuke v. B.L.E.,[1989] N.B.J. No. 716 (C.A.) (QL) per Stratton, C.J.N.B. andDoug'sRecreation Centre Ltd. et al. v. Polaris Industries Ltd. 2001 CanLII19446 (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 theparticular case. [para. 9]

56. Furthermore: the above case ofBulmer-Woodard v. Bulmer2006, 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:

JUSTICEjustice. 1. The fair and proper administration of laws.

Black's Law Dictionary (8th ed. 2004), defines unjust as follows at Page 4775

UNJUST


16/85

13

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 .2. Free of bias or prejudice .

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

Court the defines merits as the following:

MERITSmerits. 1. The elements or grounds of a claim or defense; the substantiveconsiderations to be taken into account in deciding a case, as opposed toextraneous or technical points, esp. of procedure .

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.


17/85

14

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 theRules of Court enjoins courts to overlook procedural errors

and to take appropriate measures to secure the just determination of the mattersin 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 Actionbecause 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 ruleexpressly or impliedly provides otherwise.

2.02 Effect of Non-Compliance

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 asan irregularity and shall not render the proceeding a nullity, and all necessaryamendments shall be permitted or other relief granted at any stage in theproceeding, upon proper terms, to secure the just determination of the matters indispute between the parties. In particular, the court shall not set aside anyproceeding because it ought to have been commenced by an originating processother 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.


18/85

15

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 indeedsuggest that in the case of a motion or application, the applicantmay not file or serve any affidavit other than those attached to theNotice of Motion or Notice of Application, as the case may be.However, such an interpretation does not respect the principle setout in Rule 1.03(2), which stipulates that the Rules of Court shallbe liberally construed to secure the just, least expensive and mostexpeditious 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 compliancewith any rule, unless the rule expressly or impliedly providesotherwise. As for Rule 3.02(1), it allows a judge to extend the timeprescribed by the rules of court.

[10] We are of the opinion that the principles that emergefrom the rules can only lead to the conclusion that the application judgeerred in law when he concluded that he did not have the power to admitadditional affidavits. It was within the judges discretion to dispense withcompliance with Rule 39.01(2) or again to extend the time prescribed toserve the additional affidavits that the applicant wanted to file. Since thedecision to reject the additional affidavits was based on an error in law, itdoes not warrant the deference otherwise afforded to the exercise ofdiscretionary power. In short, the judges error is such that we are justifiedin reversing his decision on appeal.

[11] The principles of interpretation require that a flexibleapproach, rather than a strict one, be taken in interpreting procedural


19/85

16

questions. Essentially, a trial judge is given a very wide discretion indeciding some of the numerous procedural questions that may arise duringa hearing. In exercising this discretion, the judge must respect thegoverning principles of interpretation, including in particular the principleset 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 withany rule, unless the rule expressly or impliedly providesotherwise.


20/85

17

Decision

[5] In our view, there is every reason to applyRules 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 byRule 1.04, and conclude that Ms. Druets failure to advance her claimfor spousal support by way of counter-petition is a procedural error thatshould be treated as a mere irregularity. In our view, that irregularitydid not render the proceeding, namely the claim for spousal support, anullity. Furthermore, it was in the interests of justice that Ms. DruetsAnswer be acted upon by the trial judge as if it were a counter-petition 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 motionproposed by Juniberry and Mr. Hong? Rule 27.10 begins with a thresholdtest 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 becompensated for by costs or an adjournment? If no such prejudice wouldresult, then the Court may grant the motion, and if so, on such terms"which are necessary for the purpose of determining the real questions inissue". Rule 2.02 further directs:

... all necessary amendments shall be permitted ... at any stage inthe proceeding, upon proper terms, to secure the just determinationof the matters in dispute between the parties.

These are rules of procedure as opposed to the substantive lawwhich defines substantial legal rights and claims. The rules are the vehicle

that enables rights to be delivered and claims to be enforced. As such, aCourt should interpret and apply the rules to ensure, to the greatest extentpossible, that there is a determination of the substantive law unless theapplication of the rules would result in a serious prejudice or injustice.Accordingly, amendments to pleadings are generally allowed. That is thereason for the use of such phrases as "determining the real questions indispute" in Rule 27.10 and "just determination of the matters in dispute" inRule 2.02. As a general principle, therefore, the rules of procedure should


21/85

18

not be used to prevent the delivery of rights; nor should they be used topreclude the enforcement of claims which are derived from the substantivelaw.

While leave to amend pleadings is a discretionary right, the exercise

of that discretion is subject to review on appeal. See Moore v. State FarmFire & Casualty Company (1982), 42 N.B.R. (2d) 667 (C.A.).

[Page 8]

In reviewing a trial judge's refusal to permit an amendment topleadings, Stratton, J.A., as he then was, in Moore, approved an appealcourt's review of the following questions to determine if an injusticeresulted from the trial judge's decision. Did the proposed amendment raisea new issue or was it a "proper and permissable" extension of a claim bythe party seeking the amendment? Could it be fairly argued that if therequested amendment were allowed it would (to which I would add, or it

should) have taken the other party by surprise? Did the amendmentdeprive the other party of "any defence [or claim] which would haveotherwise been available to it," or result in prejudice, "which cannot becompensated 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


22/85

19

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

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

see at paragraph 15 42), as follows:

ANALYSIS AND DECISION

15. Rule 16.08(1) of the Rules of Court states:

(1) Where an action is

commenced by issuing a Notice of Action with Statement of

Claim Attached, it shall be served within 6 months thereafter.

16. Rule 3.02 states:3.02 (1) Subject to paragraphs (3) and (4), the court may, on such

terms as may be just, extend or abridge the time prescribed by

an order or judgment or by these Rules.

(2) A motion for extension of time may be made either

before or after the expiration of the time prescribed.

...

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

18. Rule 1.03(2) provides that this Court should apply the Rules so as to securea just, least expensive and most expeditious determination of every proceeding onits merits.


23/85

20

19. The main concern in cases such as this is to see that justice is done and tomake certain that any extension of time for service does not prejudice or workinjustice to the parties involved.

20. I agree with counsel for the Defendant Knowlton that the onus is on theparty seeking to have the Court exercise its discretion to extend the time, tosatisfy the Court that in the circumstances of the particular case, the interest ofjustice calls for such an action.

21. The test to be applied when considering such an application is that of thesubstantial injustice test which was put forth by Mr. Justice Ayles in the Court ofAppeal decision ofBridges v. Daeres reflex, (1986), 64 N.B.R. (2d) 412, whichtest was also accepted as being correct by our Court of appeal in the more recentcase ofHill v. Mattatall, [1996] N.B.J. No. 193.

22. InHill, supra, Chief Justice Hoyt as he then was, writing for the majoritystated 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 isnot 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


24/85

21

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 questionmust be answered after a careful study and review of

all the circumstances. If the refusal to renew the writ

would do an obvious and substantial injustice to the

plaintiff, while to permit it is not going to work any

substantial injustice to the defendant or prejudice the

defendant's defence, then the writ should be

renewed. This should be done even if the only reason

for non-service is the negligence, inattention or

inaction of the plaintiff's solicitors and

notwithstanding that a limitation defence may have

accrued if a new writ was to be issued. If the non-service of the writ was due to the personal actions of

the plaintiff, that, of course, would be a fact to be

considered by the Court. Each case should be

considered in the light of its own peculiar

circumstances and the Court, in the exercise of its

judicial discretion, should be determined to see that

justice is done.

In Canada v. Pelletier reflex, (1984), 58

N.B.R. (2d) 184, Daigle, J., as he then

was, considering a three year delay,

applied Simpson and allowed theapplication. 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


25/85

22

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 appealHillwas dismissed by the Supreme Court ofCanada 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 noticeas early as December 11, 2000. They were aware that the Plaintiff had retainedlegal counsel to pursue the claim. They did make an investigation and aninformed decision was made to close their file on April 10, 2001 after denial ofliability. The two-year limitation period had not even expired by then. There isno onus on a plaintiff to do anything before the two years are up and he has afurther 6 months to serve the documents.

25. This is not a case where the Defendants insurance companies were unableto 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 aninvestigation.

26. There is no evidence of there being any witnesses to the accident otherthan the parties themselves.

27. The delay in this case is quite short when compared to some of the delaysin the cases mentioned in the Hill, supra, and Savoie, infra, decisions. ThePlaintiff had until to August 1st, 2002 to serve the documents. The motion for anextension 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 tosee that justice is done. In my view, the facts of this case are sufficient to enablethe Court to use the discretionary powers granted to it in Rule 2.02 and 3.02 inorder to secure the just determination of the matters in dispute between theparties.


26/85

23

42. I hereby grant to the Plaintiff an extension of 60 days to serve theDefendants 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 tothe 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:


27/85

24

[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 asours. At paragraph 12:

...the guiding principles remain...[a]s Lacourciere J.A. said inLaurin v. Foldesi (1979), 23 O.R. (2d) 331, 96 D.L.R. (3d) 503(C.A.): The basic consideration...is whether the [extension oftime for service] will advance the just resolution of thedispute, without prejudice or unfairness to the parties. And,the plaintiff has the onus to prove that extending the time forservice 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 obviousproblem of proving a negative and want to see the assertion ofprejudice has some firm basis in reality. In Chiarelli, Laskin J.A.

stated at paragraph 14:


28/85

25

...The motions judge was obviously unimpressed, as am I, withthe defences assertions of prejudice. The only allegation ofprejudice in the material filed by the defence on the motion is thefollowing very general statement in the affidavit of State Farmsclaims adjuster:

It is my believe that the defence of this action has beenseriously prejudiced due to the passage of time and thestrong possibility that pre-accident and post-accidentrecords and witnesses may not be available or that theirrecollections may not be accurate.

Although the onus remains on the plaintiffs to show that thedefendant will not be prejudiced by an extension, in the face ofsuch a general allegation, the plaintiffs cannot be expected to

speculate on what witnesses or records might be relevant to thedefence and then attempt to show that these witnesses andrecords are still available or that their unavailability will notcause prejudice. It seems to me that if the defence is seriouslyclaiming that it will be prejudiced by an extension it has at leastan evidentiary obligation to provide some details. The defencedid 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 beshown the prejudice occurred after the expiration of the date when

he should have been served. In Chiarelli, Laskin, J.A. stated atparagraph 16:

[16] ....prejudice that will defeat an extension of time for servicemust be caused by the delay. Prejudice to the defence thatexists whether or not service is delayed ordinarily is not relevanton a motion to extend the time for service. In this case thedefence complains that the police officer's notes have beendestroyed. However, they were destroyed within two years ofthe accident under a local police policy. Thus, the notes would

have been unavailable to the defence even if the statement ofclaim 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 indetail below, but will begin by noting : 1) Dr. Callahan has a goodmemory of the August 24, 2002 event, which he demonstrates in


29/85

26

his affidavit; and 2) Dr. Callahans counsel requested the SourisHospital records in September, 2005. I presume the records stillexist and Dr. Callahans counsel received them, else there wouldbe a clear basis for a claim of prejudice, and Dr. Callahans counselwould 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 serviceperiod;

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 havewaited two years before issuing the claim, then a further sixmonths before serving it. Nothing prejudicial occurred afterthe expiration of any dates, whether limitation period, or dateof issuance of claim or service period;

4) the plaintiff has satisfied the onus of proving the

defendant will not be prejudiced by the extension.

[38] For the reasons set out above, I find the plaintiff has

shown extending the time for service will not prejudice Dr. Callahansdefence. I am satisfied the extension will advance the justresolution of the dispute and accordingly I extend the time forservice 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


30/85

27

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


31/85

28

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 MotionWhere Only Issue is a Question of Law

(3) Where the court is satisfied that the only issue is a question of law, the courtmay 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 fortrial, apply to the court


32/85

29

(a) for the determination prior to trial, of any question of law raised by a pleadingin 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 ordefence, or

23.02 Evidence

Except with leave of the court, on applications under Rule 23.01(1), evidenceshall not be admitted except(a) a transcript of a relevant examination, and(b) affidavits which are necessary to identify a documentor 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 purposesof 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 ordefence: 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 inseveral ways, some of which are too often overlooked.

. . .

9 The intent in permitting summary judgment is to ridinnocent parties and the system not only of meritlessactions, but also of frivolous claims or defences. The


33/85

30

claims and defences which are without merit renderthe proceedings cumbersome and are a source of

unnecessary expense and delay. This Court hasconsistently urged motion judges not to be undulytimid 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 judgmentonly where there is no merit to the defence or no meritto the claim, or part thereof. The wording leaves no

room for anything but a very stringent test. Practicalexperience with the civil process inspired the triallawyers and judges who drafted Rule 22.04 to chooseits wording. The wording reflects their conviction that,except in clear cases, the best truth-finding device is atrial.

18 Stratton C.J.N.B., writing for a unanimous Court,articulated the test in the oft-quoted case of Ripulonev. Pontecorvo reflex, (1989), 104 N.B.R. (2d) 56 at p.63. He held:

[13] ... Summary judgment should be granted onlywhen 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 beunanswerable.

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


34/85


35/85

32

[4] On reviewing the motion as filed by the plaintiff, I note that the only possiblebasis 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 setdown for trial, apply to the court

(a) for the determination prior to trial, of any question of law raisedby a pleading in the action where the determination of thatquestion may dispose of the action, shorten the trial, or result in asubstantial saving of costs, . . .

[6] The courts function under Rule 23.01(1)(a) is limited to determining a pointof law raised by a pleading.

[7] At paragraph 19, inNorris v. Lloyds of London (supra), Drapeau, J.A. set outthe 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 apoint 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 thepotential for achieving any of these results exists, the court may exerciseits discretion and determine the point of law. To state it otherwise, thepossibility that the determination of a question of law may dispose of theaction 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, acompanion or follow-up motion being required.

[8] Moreover, it is well established that in these cases, the pleadings must beliberally 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 itsdiscretion, that there is a possibility that the determination of a question of lawraised 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 thepleadings 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


36/85

33

pleadings may dispose of the action, shorten the trial, or result in a saving ofcosts.

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 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 oromission, 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- 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 statementthat he observed a male closely matching the description of a suspect in some type ofcrime, 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.


37/85

34

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 amotion to strike out a statement of claim


38/85

35

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 availableafter a defendant files a statement of defence to the action, that an orderto strike should only be made in the clearest of cases and here there is aclear cause of action, and that, if there are any deficiencies in thepleading, the plaintiff should be granted leave to amend its statement ofclaim to reflect the settlement. In support of its position on the merits of itsclaim, it refers to facts, in particular, the settlement, which are not allegedin 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 areasonable cause of action must be decided on the face of the pleadingalone. The statement of claim, viewed in isolation from the statement ofdefence and the affidavit evidence, is lacking some important particulars,such as dates. However, this did not prevent the defendant from pleadingto it, and the general rule appears to be that filing a statement of defenceprecludes a motion to strike for failure to disclose a reasonable cause ofaction. In McCurdy v. McKenzie(1986)[1], OSullivan J.A. noted:

I do not think that it was open to the judge to dismiss on theground of failure to disclose a cause of action because astatement of defence has already been filed on behalf of

the government. [2]..

[12] In Mandolfo Investments (Canada) Inc. v. Cut Above RestaurantsInc. (2000)[3], Master Lee (as he then was) declined to strike a claim forfailure to disclose a reasonable cause of action where a statement ofdefence had been filed to the amended claim. He commented:

A motion to strike a statement of claim as disclosing nocause of action should be brought prior to a statement ofdefence being filed.

For purposes of considering the striking out of a statement ofclaim or portion thereof for failing to disclose a reasonablecause of action, the court must consider that all of theallegations in the pleadings are true. The defendant hasconsidered the allegations in the statement of claim and hasfiled a statement of defence denying the allegations. Thesedefendants determined that they did not require particularsfor the purposes of pleading and I am persuaded that any


39/85

36

particulars that they now claim to be necessary to ascertaina 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 adefence. The fact that the defendant takes the position in its statement ofdefence that the claim should be dismissed for failure to disclose areasonable cause of action, does not, in my view, change the situation.The proper course would have been to file the motion before filing thestatement of defence, not a year after. At this stage of the proceedings, ifthe defendant is so certain that the claim raises no real issues, it has theoption of seeking summary judgment dismissing the claim.

[14] The law is also clear that a statement of claim should not bestruck out except in the clearest of cases, where it is plain and obviousor 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 thedeficiencies. Furthermore, there is nothing preventing the plaintiff frominstituting an action in Manitoba against the defendant, particularly sincethe defendant did not attorn to the jurisdiction of Saskatchewan inconnection with the third party claim. The defendant cited no authority forthe argument it advanced in this respect.

[15] Therefore, I am not prepared to strike the claim. Centaur maywish to amend the claim to add the additional particulars as to the datesand the details of the settlement it reached with the School Division onwhich 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 claimfor 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


40/85

37

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 aStatement of Claim is accurately set out in the judgment of Borins J. inAGF 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 theopportunity to amend its statement of claim was not discussed inHunt v. Carey, supra, in my view, it is reasonable to conclude from

the strong policy views expressed by Wilson J. that a plaintiffshould be afforded this opportunity unless the statement of claimcontains a radical defect incapable of being cured byamendment. Therefore, on a motion under rule 21.01(1)(b), thecourt may exercise both its coercive and its corrective powers in asuitable 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 courtin the appropriate case to allow the plaintiff to replead and therebyprevent the plaintiff from being driven from the judgment seat without any court having considered his right to be heard:Dysonv. 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, theliberal amendment policy of theRules of Civil Procedure would beundermined by efforts to impose on a plaintiff rigid pleadingrequirements on pain of having the action dismissed unlessperfection in pleading is achieved. In my experience, on a motionto strike out a statement of claim for failing to disclose areasonable cause of action the usual practice is to grant leave toamend the statement of claim unless it is clear the plaintiff is


41/85


42/85

39

(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 reasonablecause of action or defence, or

[17] Rule 27 relates to pleadings and specifically, Rule 27.09 provides for thestriking 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 theaction,

(b) be scandalous, frivolous or vexatious, or

(c) 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 toRule 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 confirmedthat a determination made pursuant to Rule 23 is confined to an assessment of thepleadings. 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

plaintiffs brief used to oppose defendants three motions jan 19.2012

Documents