105.11.CA Appellant's Brief on Motion to Strike Affidavit material and Costs ordered against a...

7/30/2019 105.11.CA Appellant's Brief on Motion to Strike Affidavit material and Costs ordered against a Respondent for bre

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Court of Appeal File Number: 105 11 - CA

(Court File Number: F/C/104/09)

IN THE COURT OF APPEAL OF NEW BRUNSWICK

BETWEEN:

ANDRE MURRAY

APPELLANT (Plaintiff )

-and-

BETTY ROSE DANIELSKI

RESPONDENT (Defendant)

Appellants Brief

Motion to Strike and Costs

Filed by self representedAPPELLANT

ANDRE MURRAY

Andr MurrayAPPELLANT

(Plaintiff)

31 Marshall Street,

Fredericton,

New Brunswick,E3A 4J8

Telephone

Number:(506) 472 - 0205

E-mail address:[email protected]

Solicitor forRESPONDENT

(Defendant) Betty Rose

Danielski

E. Thomas Christie,

CHRISTIE LAWOFFICE

Suite 306,

212 Queen StreetFredericton,

New BrunswickCanada, E3B 1A8Tel: (506) 472 2090

Fax: (506) 472 2091

E-Mail:

[email protected]

Betty RoseDanielski

RESPONDENT

(Defendant)

Apt 603

166 Carlton StreetToronto, Ont.

M5A 2K5


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Appellants Brief

Motion to Strike and Costs

Part IINDEX

Part I INDEX _________________________________________

PART II STATEMENT OF FACTS ______________________

PART III - ISSUES ______________________________________

A. The Court of Appeal must determine pursuant to Rules 2.03,2.04, 18.02, 18.03, 27.09, 39.01 and Rule 39.04of the Rules of

Court thatthe Affidavit of Defendant Betty Rose Danielski,

Dated June 3, 2010 be struck out and or not considered by this

Court._____________________________________________

The Court of Appeal must determine in the alternative,

pursuant to Rule 62.21 and62.22 (d) of the New Brunswick

Rules of Court, directions in a matter of procedure not

provided for by the New BrunswickRules of Court, as to how

the appellant should proceed with respect to the Affidavit of

Defendant Betty Rose Danielski, Dated June 3, 2010 so that it

be struck out and or not considered by this

Court;_____________________________________________

Page

i

1

2

3

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B. The Court of Appeal in this matter may determine whether thefollowing should apply under Rules of Court 62.24 Failure to

Comply with Rule; specifically 62.24(1) (c) of theRules of

Courtthat the Respondent pay costs of the within Motion and

costs of the Appeal forthwith for non-compliance with Rule

62.20 Filing and Service of Respondents Submission

specifically 62.20 (c) _________________________________

C. Cost Orders in favor of self-represented litigants of the withinMotion ___________________________________________

PART IV ORDERS SOUGHT ____________________________

SCHEDULE A - LIST OF AUTHORITIES _______________

SCHEDULE B - TEXT OF RELEVANT PROVISIONS

OF STATUTES OR REGULATIONS______

19

44

56

58

60


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PART II STATEMENT OF FACTS

1. As is required by Rules of Court 18.02, 18.03, 39.01 including 39.04prior to the hearing of the subject matter, unfortunately the Defendant did treat

as incidental, as did occur and did repeat before each of the two lower Trial

Division Court Hearings of June 10, 2010 (Madam Justice Garnett) and

February 14, 2011 (Madam Justice J. L. Clendening); the Defendant (in that

matter) did not perform Court Document Process Service upon the Plaintiff, of

significant substantive material, that being an Affidavit of Defendant Betty

Rose Danielski, Dated June 3, 2010, moreover, Defendant following or

accompanying as a consequence, did not request that the lower Court in the

first instance, overlook this glaring irregularity of Court Document Process

Service, which would have, for that reason, allowed the Learned Trial Judge

(hearing the matter) to reasonably consider this subject Affidavit. This is a

glaring oversight on the part of the Defendant to not, request the lower Court to

make a Ruling thereby permitting the subject irregularity of Court Document

Process Service.

2. Defendant subject of this matter has a history of non compliance with,

Rules of Court,Rule18.02, Rule 18.03, Rule 20.01, Rule 20.02, Rule 27.03,

Rule 27.04, as they apply to the Lower Court, bethatasitmay, Respondent

incidentally demonstrates disregard for Rule 62.20(b) as this Rule necessarily,

for that reason, applies to the Honorable COURT OF APPEAL.

3.Code of Professional Conduct as found described, within relative

sections of the Law Society of New Brunswick: CODE OF PROFESSIONAL

CONDUCT; CHAPTER 15: Good faith, (professional) courtesy, collegiality

Subsection 2(iii), 2(v), 2(vii) and section 4; Avoidance of sharp practice. Lack


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of adherence by the Defendants Solicitor to the herewithin above listed

sections detrimentally for that reason contributed to the delaying of consent as

requested by the Plaintiff of the subject Continuance of the Court Action.

PART III - ISSUES

A. The COURT OF APPEAL must determine pursuant toRules 2.03,2.04, 18.02, 18.03, 27.09, 39.01 and Rule 39.04of the Rules of Court

thatthe Affidavit of Defendant Betty Rose Danielski, Dated June 3,

2010, be struck out and or not considered by this Court.

B. COURT OF APPEAL must determine in the alternative, pursuant to

Rule 62.21 and62.22 (d) of the New BrunswickRules of Court,

directions in a matter of procedure not provided for by the New

BrunswickRules of Court, as to how the appellant should proceed with

respect to the Affidavit of Defendant Betty Rose Danielski, Dated: June

3, 2010 so that it be struck out and or not considered by this Court;

C. COURT OF APPEAL must determine whether under Rule 62.24(1)and 62.24(1) (c) of theRules of Courtthat the Respondent pay of costs

of the within Motion and the costs of the Appeal forthwith for non-

compliance withRule 62.20 Filing and Service of Respondents

Submission. Under that rule, the Respondent should have, according to:

62.20 Filing and Service of Respondents Submission

Not later than the 20th day of the month preceding the month in whichan appeal is eligible to be heard, each respondent shall

(b) serve a copy of the Respondents Submission

upon each of the parties to the appeal


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Therefore not later than the 20th dayof October, 2010, in preparation for

the first hearing of this matter, despite the following Respondent did not.

Furthermore, under rule, the Respondent should have, according to the

Rules of CourtRule 62.20 (b) serve a copy of the Respondents Submissionupon the Appellant, not later than the 20th day of September, 2011, in

preparation for this second hearing of the matter, despite the following

Respondent did not.

D.

COURT OF APPEAL may determine (in light of circumstances) thatthe Awarding of Costs against the Respondent is appropriate.

A.

Strike Affidavit

4. The Appellant requests Orders of this Honorable COURT OF APPEAL,

pursuant to Rules 2.03, 2.04, 18.02, 18.03, 27.09, 39.01 including Rule 39.04

that Affidavit of Defendant Betty Rose Danielski, Dated: June 3, 2010 be

struck out and or not considered by this Court;

5. The relevant Rules of Court are reproduced as follows:

2.03 Attacking the Regularity of ProceedingsA motion to attack a proceeding for irregularity shall be made within a

reasonable time, and shall not be allowed if the party applying has taken a

further step in the proceeding after having knowledge of the irregularity.

2.04 Where No Procedure ProvidedIn any matter of procedure not provided for by these rules or by an Act the

court may, on motion, give directions.

18.02 How Personal Service Shall be Made(1) Personal service shall be made as follows:

Individual


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(a) on an individual, other than a person under disability, by leaving a copy

of the document with him;

18.03 Other Ways to Effect Personal ServiceWhere available

(1) With the exception of Rules 33.03 and 55.03, where personal service is

required by these rules, any appropriate method of service authorized by this

subrule may be used.

Service by Prepaid Mail or Prepaid Courier

(3) Where personal service of a document may be made by leaving a copy

with a person pursuant to Rule 18.02(1), such service may be made anywhere

in Canada by sending a copy of the document, together with an Ac-

knowledgement of Receipt Card (Form 18A), by prepaid mail or prepaid

courier addressed to the person at the last known address of the person.

(4) Service by prepaid mail or prepaid courier shall be deemed to have been

effected only if any one of the following is returned to and received by the

sender:

(a) the Acknowledgement of Receipt Card bearing a signature which

purports to be the signature of the person to whom the document was

sent;

(b) a post office receipt bearing a signature which purports to be the

signature or a copy of the signature of the person to whom the

document was sent;

(c) any other form of acknowledgement of receipt in writing bearing a

signature which purports to be the signature or a copy of the

signature of the person to whom the document was sent; or

(d) confirmation in writing from the carrier that the document was

delivered to the person to whom the document was sent.

(5) Service by prepaid mail or prepaid courier shall be deemed to have been

effected on the date the sender receives a receipt or confirmation under

paragraph (4).

39.01 By Affidavit

(1) On a motion or application evidence may be given by affidavit unlessdirected otherwise by these rules or by order.

(2) A party serving a Notice of Motion or Notice of Application shall serve

with it any affidavits which he intends to use at the hearing.


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(2.1) The judge who fixes the date for the making of a motion or the judge

who fixes the return date for a Notice of Application may dispense with the

requirement for service of any of the exhibits to the affidavits referred to in

paragraph (2).

(3) Where a motion or application is made without notice, it shall be sufficient

to file any affidavit in support of the motion or application on or before the

hearing thereof.

(4) Except in the case of a motion for summary judgment under Rule 22, and

subject to section 34 of the Judicature Act, an affidavit for use on a motion

need not be confined to statements of fact within the personal knowledge of

the deponent, but may contain statements as to his information and belief, if

the source of his information and his belief therein are specified in the

affidavit.

(5) An affidavit for use on an application shall be confined to facts within the

personal knowledge of the deponent; but the affidavit may contain statements

as to the information and belief of the deponent with respect to facts which

are not contentious, if the source of his information and his belief therein are

specified in the affidavit.

39.04 Service of AffidavitsExcept for the person giving Notice of Application or Notice of Motion, any

person who intends to give affidavit evidence at the hearing shall serve a copy

of such affidavit

(a) on the person giving the notice, and

(b) on each person served with the notice, at least 4 days prior to the date set

for the hearing.

27.09 Striking Out a Pleading or Other DocumentThe court may strike out any pleading, or other document, or any part

thereof, at any time, with or without leave to amend, upon such terms as may

be just, on the ground that it

(a) may prejudice, embarrass or delay the fair trial of the action,

(b) is scandalous, frivolous or vexatious, or

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


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6. Appellant hereby Motions the Honorable COURT OF APPEAL pursuant to

Rules of Court:

Rule 2.03Attacking the Regularity of Proceedings;

Please Note Appellant comprehends that any Motion brought before COURT OF

APPEAL, thereby, , attacks a proceeding for irregularity, shall be made within a

reasonable time, and shall not be allowed if the party making application has taken a

further step in the proceeding, after having knowledge of the irregularity. The

Appellant is still asking for Orders granting a Continuance without any actual further

step having been taken in the Mechanics Lien Action.

7. As is the case in this subject matter, the Appellant was unable to bring this

above herewithin mentioned irregularity to the attention of the Honorable Court at

Hearing of said matter, before Court of Queens Bench Hearing, Date June 10, 2010,

as the Learned Trail Judge hearing the matter would not allow the Appellant to be

heard.

8. November 9, 2010 Appellant has subsequently, brought this irregularity to the

attention of the COURT OF APPEAL (of subject an Affidavit having not Court

Document Process Service according to Rules of Court). Please Note, Appellant hasintentionally omitted Affidavit of Defendant Betty Rose Danielski, Dated: June

3, 2010, from within the Record before COURT OF APPEAL; also subject

Affidavit is for the reasons stated intentionally omitted from within the

Appellants Appeal Book.

9. The fact that the Defendant did not Process the subject Court

Documents by proper Service of the subject Defendants Affidavit of Betty

Rose Danielski, Dated June 3, 2010, as is required by the Rules of Court 18.02,

18.03, 39.01 and 39.04 was made abundantly clear for the Honorable Court

consideration within the submissions filed (for that purpose) within the


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appropriate Court File of the Court Client Services by the Appellant in

preparation for the February 14, 2011 hearing before Madam Justice J. L.

Clendening.

10. Appellant Andr Murray is requesting pursuant to Rules of Court Rule

2.04 Where No Procedure Provided, regarding a matter of procedure not provided for

by these rules or by an Act, in such as situation the court may, on motion, give

directions, furthermore in the alternative, pursuant to Rule 62.21 and 62.22 (d) of

the New BrunswickRules of Court, givedirections in a matter of procedure

not provided for by the New BrunswickRules of Court, as to how the appellant

should proceed with respect to the Affidavit of Defendant Betty Rose

Danielski, Dated June 3, 2010 ultimately that this subject Affidavit is

immaterial, unimportant under the circumstances Affidavit of Defendant Betty

Rose Danielski, Dated June 3, 2010 further therefore that it may be struck out

and or not considered by this Court;

11. Further relative Rules of Court to be considered are as follows:

62.21 Powers of Court of AppealTo Draw Inferences and Make Decisions

(1) The Court of Appeal may draw inferences of fact, render anydecision and make any order which ought to have been made, and maymake such further or other order as the case may require.

62.22 Directions on Appeal(1) A judge of the Court of Appeal may, on motion by a party to an appeal

(a) order that a Notice of Appeal or Notice of Cross- Appeal be served on aperson not a party to the appeal, and make any further order which might havebeen made if the person had originally been a party,

(b) order that service of a Notice of Appeal or Notice of Cross-Appeal beeffected by substituted service, or that service be dispensed with, (c) givedirections respecting the form and contents of the Appeal Book,


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(c) give directions respecting the form and contents of the AppealBook,

(d) give directions respecting preparation or reproduction of evidence, and

(e) vary the requirements of this rule to avoid undue expense or delay or forany other reason.

12. In Carrier v. Carrier, 2006 CanLII 34964 (NB CA), Chief Justice J.

ERNEST DRAPEAU, regarding Rules of Court, Rule 2.04, Where No

Procedure Provided and Rule 62.22 , stated the following at paragraph 4 and 5:

[4] This rule may only be used when directions are needed on amatter of procedure not otherwise provided for in the rules or in a

statute.

[5] Moreover, no solution is proposed for the procedural

dilemma. This brings me to state the obvious, namely, that the Court

cannot act as Mr. Carriers legal counsel. That is precisely the role I

am asked to play in this request for directions under Rules 2.04 and

62.22 (d). For this reason, and as I indicated at the hearing, I cannot

grant the motion for directions.

13. Unlike the situation in Carrier v. Carrier, 2006, supra, where no solution

is proposed for the procedural dilemma, before Chief Justice J. ERNEST

DRAPEAU, the Appellant in this matter is clearly asking for a particular relief,

being that the Affidavit of Defendant Betty Rose Danielski, Dated June 3,

2010, be struck out and or not considered by this Court. To the Appellants

knowledge there is not Rule of Court Governing Court of Appeal procedures,

regarding removing evidence from the record, that, which should not have

been placed there. Notwithstanding the following, the Appellant reassures this


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Honorable Court that this Court is not being asked to act as legal counsel,

merely that the Honorable COURT OF APPEAL provide relief as requested.

14. Further relative Rules of Court to be considered are as follows:

62.13 Appeal Book

(1) The appellant shall prepare an Appeal Book which shall contain, in the

following order,and where applicable

(h) a copy of any affidavit evidence, or

15. Merriam-webster dictionary provides the following definition of applicable, at

the url (http://www.merriam-webster.com/dictionary/applicable) as follows:

: capable of or suitable for being applied : appropriate

16. The Appellant (in this matter) was compelled by the Rules of Court, Rule 62.13

to prepare an Appeal Book which contains, a copy of any affidavit evidence,

specifically where applicable. Moreover, and to this point of where applicable t he

Appellant is of the view, that under any circumstances the subject Affidavit document

and the allusion by the Respondent to content of relative substance found therewithin

is erroneous, therefore would always be and is for our purposes immaterial,

unimportant under the circumstances, furthermore, may not be considered of any

importance, moreover, that which was not served according to the Rules of Court.

17. The Defendant did not properly Process certain Court Documents by

Service in this case of the subject Affidavit of Defendant Betty Rose

Danielski, Dated June 3, 2010, as is required by the Rules of Court 18.02,

18.03, 39.01 and 39.04 before either of the two lower /Court hearings of thematter (as before theses Courts) occurring: June 10, 2010 (Madam Justice

Garnett) or February 14, 2011 (Madam Justice J. L. Clendening) and further

did not, respectfully, request that the Court of first instance overlook this


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glaring irregularity in Service, so that the Learned Trial Judge could consider

this same Affidavit.

18. The following case example (hereby provided for reference) illustratesthe setting aside of an Order, that which (as the example illustrates) was

served on the Defendant (in that example case) by way of Substituted Service.

The Order of Substituted Service (in that matter) was not exactly complied

with according to Rules of Court, consequentially (it would appear) the lack

thereof, the disputed Order was claimed to not have come to the attention of

the Defendant; consequently the Defendant did not appear at the originalscheduled hearing. After review of the material, Madam Justice Humphries

stated the decisions are set aside, and the proceedings will continue in the

Small Claims division of the provincial court, as if default judgment had not

occured. Honourable Madam Justice Humphries states Counsel for the

petitioner argues that it is settled law that if a claimant fails to serve a

defendant with an originating process in accordance with the relevant

statutory requirements - including any order for substitutional service made

under them - and subsequently obtains a default judgment based on the

defendants failure to respond, then the default judgment is a nullity. The

defendant in this case was therefore entitled to have the default judgment set

aside as of right.

19. In Wright v. Czinege, 2008 BCSC 1292 (CanLII), Honourable Madam

Justice Humphries, regarding requirements for service, stated that requirements

for service must be strictly adhered to; for that reason, service improperly

effected is not service at all, from paragraph 32 through to and including

paragraph 55:


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[32] The petitioner submits that the issue for consideration bythis court is one of the small claims Courts jurisdiction to grant default

judgment in these circumstances and frames it this way:

When a claimant relies upon an order for substitutional service to effectservice of a Notice of Claim but fails to serve the Notice of Claim on adefendant in accordance with the terms of the order, can the court grantthe claimant a default judgment against the defendant for failing to filea Reply to the Notice of Claim?

[33] Counsel for the petitioner argues that it is settled law that ifa claimant fails to serve a defendant with an originating process inaccordance with the relevant statutory requirements _ including any

order for substitutional service made under them and subsequentlyobtains a default judgment based on the defendants failure to respond,then the default judgment is a nullity. The defendant in this case wastherefore entitled to have the default judgment set aside as of right.The provincial court judges determination that he could properly applythe discretionary tests in Miracle Feeds was in error.

..

[41] In William v. Lake Babine Indian Band[2000] 1 C.H.L.R.233, 30 C.P.C.(4

th) 156, which concerned an application to set aside a

default judgment, this court said at paras. 26 40::

There seems little question that defective service of documents cannotbe cured merely by the fact that such documents have found their wayinto the possession of the person served. Service must be effected in amanner provided for by the Rules of Court or by such other statutoryprovision that may apply.

Service improperly effected is no service.

Where there has been no service of the proceedings leading up todefault judgment then the judgment cannot stand, for it was obtained in


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circumstances where the defendant was denied an opportunity to beheard. That cannot be said to be an irregularity

[42] AlthoughMiracle Feeds had been argued as an alternativebasis on which to set aside the default judgment, the Court said it wasnot necessary to consider it because the default judgment was a nullity.See alsoBains v. James Lorimer & Co. [1993] B.C.J. No. 767 (S.C.)(QL);Norton v. Kel Holdings Ltd. [1995] B.C.J. No. 1498 (S.C.)(QL);Carpenter v. E.B.H. Financial Services Ltd. (1998), 19 C.P.C. (4th) 39(S.C.);Pan Pacific Specialties Ltd. v. Shandong Machinery andEquipment I/E Corp. [1999] B.C.J. No. 2046 (S.C.) (QL).

[43] InMichalakis v. Nikolitsas (2002) BCSC 1708, default

judgment was granted in small claims court at a settlement conferenceagainst a defendant who subsequently showed that he had not beenserved with notice of the conference. The provincial court judgerefused to set aside the judgment, drawing a distinction between serviceof an originating process and an interlocutory process. On judicialreview, this court stated that there is no such distinction. Having foundthat process had been taken against a litigant without notice wherenotice was required, it was not a case for the exercise of discretion.The judges refusal to set aside the default judgment was contrary tothe rules of natural justice, patently unreasonable, and could not stand.

[44] I take the following principles from the cases referred toabove:

1. requirements for service must be strictly adhered to;service improperly effected is no service;

2. evidence that the proceedings have come to the attentionof the other party is not a substitute for proper service;

3. failure to serve proceedings results in any consequentorder being nullity;

4. the opposing party is entitled to have such an order setaside as of right;


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5. the discretionary considerations set out inMiracle Feedsdo not apply to applications to set aside default

judgments where proper service was not effected.

[45] While the detailed review of the law which was provided to meis of assistance, it must be mentioned, in fairness to the provincial courtjudge who declined to set aside the default judgment, that these caseswere not provided to him. There was no issue taken before him withthe relevance of the tests set out inMiracle Feeds to the application toset aside the default judgment.

Result

[55] Counsel for the defendant/petitioner suggested that if shewere successful in her argument and the default judgment were setaside, she would acknowledge service on behalf of the defendant, file aReply, and assist in bringing the proceedings to completion before theprovincial court. In the alternative, the matter could be directed back tothe small claims court for reconsideration in light of this courtsreasons.

M.A. Humphries J.The Honourable Madam Justice M.A. Humphries

20. The Defendant did not perform or properly process Court document

Service of the subject Affidavit of Defendant Betty Rose Danielski, Dated June

3, 2010, as is required by the Rules of Court, despite having many

opportunities to do so, especially in light of the fact, that this issue of

insufficient Service was brought to the attention of the Respondent, (in the first

instance) nevertheless the Respondent did nothing to remedy the discrepancy,

therefore the Court should not consider the same Affidavit.

21. Appellant is requesting pursuant to Rules of Court Rule 27.09 Striking Out

a Pleading or Other Document that the Affidavit of Defendant Betty Rose


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Danielski, Dated June 3, 2010 be struck out and or not considered by this

Court.

22. Portions of the Affidavit of Defendant Betty Rose Danielski, Dated June

3, 2010, are intend to embarrass, may be, as contained and found therewithin,

intended to delay the fair Hearing of the matter, furthermore, are confusing,

scandalous, frivolous and/or vexatious allegations, that, which abound

throughout; the Defendant appears content to propagate fear and confusion by

drawing false conclusion and making erroneousjuxtapositions. Amid such

hullabaloo, sober analyses of the issues at stake, will not be achieved and is

further evidence of the Defendants abuse of the process of the Court,

furthermore the Affidavit of Defendant Betty Rose Danielski, Dated June 3,

2010, has content which is irrelevant to the motion unimportant under the

circumstances and irrelevant concerning a Continuance of a Mechanics Lien

Action and is scandalous.

23.

In Moncton Family Outfitters et al. v. Schelew, 2005 NBQB 273(CanLII) an abuse of the process of the court is described as arisin, where its

process is used, not in good faith and not for proper purposes, but as a means

of vexation or oppression or for ulterior purposes, or, more simply said, where

the court is misused. Justice Peter S. Glennie stated at a paragraph 49 through

to including 68 as follows:

[49] In dismissing the two actions on the basis that they bothwere frivolous, vexatious, without merit and an abuse of process,Justice Dickson writes at paragraph 18 to 20:


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18 The law applicable in this jurisdiction is essentially as set out inHalsbury (4th Ed.) Vol. 37 where in paragraph 430 it is stated:

430. Summary powers to strike out pleadings, dismiss actions and enterjudgments. The court is invested with extensive powers to strike outpleadings and thereupon, or for other good reason arising from themaking of the claim or defence, to dismiss actions by plaintiffs or toenter judgments against defendants. These powers are both salutaryand necessary not only to enforce the basic rules of pleadings but alsoto dispose of proceedings which are hopeless, baseless or withoutfoundation in law or in equity or are otherwise an abuse of the processof the court. The powers are exercised by the court by summaryprocess, speedily and generally at an early stage of the proceedings, and

they operate as a powerful, effective method of disposing ofproceedings without a plenary trial.

The powers are derived from two parallel sources. First they areconferred by rules of court and secondly they are exercisable under thecourts inherent jurisdiction. These sources are cumulative, notalternative, and may be invoked by the parties and employed by thecourt simultaneously. However, the powers are permissive, notmandatory, and they confer a discretionary jurisdiction which the courtwill exercise in the light of all the circumstances concerning theoffending pleading. This discretion will be exercised by applying two

fundamental, although complementary, principles. The first principleis that the parties will not lightly be driven from the seat of judgment,and for this reason the court will exercise its discretionary power withthe greatest care and circumspection, and only in the clearest of cases.The second principle is that a stay or even dismissal of proceedingsmay often be required by the very essence of justice to be done, so asto prevent the parties being harassed and put to expense by frivolous,vexatious or hopeless litigation.

19 Abuse of process has been described (ibid, para. 434) as follows:

An abuse of the process of the court arises where its process is used,not in good faith and for proper purposes, but as a means of vexation oroppression or for ulterior purposes, or, more simply, where the court ismisused. In such case, even if the pleading or endorsement does notoffend any of the other specified grounds for striking out, the facts may


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show that it constitutes an abuse of the process of the court, and on thisground, the court may be justified in striking out the whole pleading or

endorsement or any offending part of it. Even where a party strictlycomplies with the literal terms of the rules of court, yet if he acts withan ulterior motive to the prejudice of the opposite party, he may beguilty of an abuse of process, and where subsequent events render whatwas originally a maintainable action one which becomes inevitablydoomed to failure, the action may be dismissed as an abuse of theprocess of the court.

And, ibid, at para. 435:

The power to strike out, stay or dismiss under the courts inherent

jurisdiction is discretionary. It is a jurisdiction which will be exercisedwith great circumspection and only where it is perfectly clear that theplea cannot succeed; it ought to be exercised sparingly and only inexceptional cases. However, for this purpose the court is entitled toinquire into all the facts and circumstances of the case, and to this endaffidavit evidence is admissible. In a proper case the court mayexercise its jurisdiction even if the application to strike out is made at alate stage of the proceedings.

And, ibid, at para. 443:

The most important ground on which the court exercises its inherentjurisdiction to stay proceedings is that of abuse of process. This is apower which, it has been emphasized, ought to be exercised sparinglyand only in exceptional cases. It is not confined to cases where theendorsement of the writ or the pleading is an abuse of process, but maybe exercised where the abuse extends beyond the endorsement orpleading and is demonstrated by almost inconvertible facts andcircumstances proved by affidavit evidence, if necessary. It will beexercised where the proceedings are shown to be frivolous, vexatiousor harassing or to be manifestly groundless or in which there is clearlyno cause of action in law or in equity. The applicant for a stay on this

ground must show not merely that the plaintiff might not, or probablywould not, succeed, but that he could not possibly succeed on the basisof the pleadings and the facts of the case.


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20 One further principle applicable is the obvious one that whether an

action may be deemed frivolous, vexatious, wholly without meritand/or an abuse of process must be assessed in the context of theparticular circumstances of the case.

..

[54] The Court concluded that there was no cause of actiondisclosed based on abuse of process and struck that claim. Gravely,L.J.C.C. writes:

The principle is set out in Tsiopoulos v. Commercial Union Assurance

Co. reflex, (1986) 56 O.R. (2d) 117, per Henry, J. at p. 119:

It is well settled that there is at law a tort known as abuse of process.This cause of action arises when the processes of law are used for anulterior or collateral purpose. It is defined as the misusing of theprocess of the courts to coerce someone in some way entirely outsidethe ambit of the legal claim upon which the court is asked to adjudicate.It occurs when the process of the court is used for an improper purposeand where there is a definite act or threat in furtherance of suchpurpose.

[63] As to the ingredients required for a valid plea of abuse ofprocess, I refer to Fleming on Torts 4th ed. (1971) pp. 547_8:

The gist of this tort lies in the misuse of process, no matter howproperly obtained, for any purpose other than that which it wasdesigned to serve. (Rest. 682) It involves the notion that theproceedings were merely to coerce the defendant in some wayentirely outside the ambit of the legal claim upon which the court isasked to adjudicate The essential elements of abuse of process arefirst, a collateral and improper purpose such as extortion, andsecondly, a definite act or threat, in furtherance of a purpose not

legitimate in the use of the process. Some such overt conduct isessential, because there is clearly no liability when the defendantmerely employs regular legal process to its proper conclusion, albeitwith bad intentions.


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Frivolity and vexation charges defined

[67] In Currie v. Halton Regional Police Services Board 2003Carswell Ont. 4674 (Ontario Court of Appeal) Justice Armstong dealswith the definitions and meaning of the terms `frivolous, `vexatiousand `abuse of process.

[68] He writes at paragraphs 14 to 17:

14 Blacks Law Dictionary defines frivolous as: Lacking a legalbasis or legal merit; not serious; not reasonably purposeful.

15 In Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220 (Ont. C.A.), at 226,

Howland, C.J.O. considered the meaning of vexatious under theVexatious Proceedings Act, R.S.O. 1970, c. 481:

The word vexatious has not been clearly defined. Under theAct, the legal proceedings must be vexatious and must also have beeninstituted without reasonable ground. In many of the reported decisionsthe legal proceedings have been held to be vexatious because they wereinstituted without any reasonable ground. As a result the proceedingswere found to constitute an abuse of the process of the Court. Anexample of such proceedings is the bringing of one or more actions todetermine an issue which has already been determined by a Court of

competent jurisdiction: Stevenson v. Garnett, [1898] 1 Q.B. 677 at pp.680_1; Re Langton, [1966] 3 All. E.R. 576.

16. In discussing the inherent power of the court to invoke the doctrineof abuse of process, apart from rule 21.01(3)(d), Finlayson J.A. for themajority in Canam Enterprises Inc. v. Coles 2000 CanLII 8514 (ONC.A.), (2000), 51 O.R. (3d) 481 (Ont. C.A.), revd on other grounds2002 SCC 63 (CanLII), (2002), 220 D.L.R. (4th) 466, 2002 SCC 63(S.C.C.) at para. 31 stated:

The court can still utilize the broader doctrine of abuse ofprocess. Abuse of process is a discretionary principle that is not limited

by any set number of categories. It is an intangible principle that isused to bar proceedings that are inconsistent with the objectives ofpublic policy.


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Goudge J.A. for the minority in the same case, stated at paras. 55 and56:

The doctrine of abuse of process engages the inherent power ofthe court to prevent the misuse of its procedure, in a way that would bemanifestly unfair to a party to the litigation before it or would in someother way bring the administration of justice into disrepute. It is aflexible doctrine un- encumbered by the specific requirement ofconcepts such as issue estoppel. See House of Spring Gardens Ltd. v.Waite, [1990] 2 All. E.R. 990 (C.A.).

24. Appellant Andr Murray believes that the Respondent abused the process

of the Court when the Respondent/ Defendant Betty Rose Danielski, included

in a Respondents Appeal Book, the Affidavit of Defendant Betty Rose

Danielski, Dated June 3, 2010 which Respondent had never attempted to

process by Court Document Service ,of same, upon the Appellant, therefore

should not be included in the record.

B.

The Respondent pay of costs of the within Motion and the costs of the

Appeal forthwith for non-compliance with Rule 62.20

25. The Appellant further requests of this Honorable COURT OF APPEAL

an Order pursuant to Rule 62.24(1) and 62.24(1)(c) of the Rules of Court for

an order that requires the Respondent pay costs of the within Motion and the

costs of the Appeal forthwith for non-compliance with Rule 62.20, Failure to

Comply with Rule the Appellant has subsequently experienced unnecessary

expense and a great deal of stress attempting to receive proper service of

Respondents Submission according to Rules of Court.

26. A copy of the Respondents Submission is required to be served upon the

Appellant according to the Rules of Court, 62.20 Filing and Service of Respondents


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Submission in preparation for the first Appeal Hearing on this matter, the

Respondent should have, according to the Rules of Court62.20 (b) served a copy ofthe Respondents Submission upon the Appellant, not later than the 20th day of

October, 2010, but did not. Under that same rule 62.20 (b), in preparation for this

second COURT OF APPEAL Hearing on this matter, the Respondent should

have, according to the Rules of Court62.20 (b) served a copy of the RespondentsSubmission upon the Appellant, not later than the 20th day of September, 2011, but

has not.

27.

The Solicitor for the respondent, in this matter, has a demonstrable history ofnon compliance with the Rules of Court Rule18.02, Rule 18.03, Rule 20.01, Rule

20.02, Rule 27.03, Rule 27.04, and Rule 62.20(b).

28. Appellant Notes Respondent has not adhered to The Law Society of

New Brunswicks Code of Professional Conduct, CHAPTER 15 Section 2 (iii),

2 (v), 2 (vii) and Section 4, consequently, the Appellant requests the Court to

consider the following when ruling as to costs of the within Motion and the costs

of the Appeal.

29. Appellant Andr Murray was Court document Process Served by

registered Mail, a copy of the Respondents Appeal Book on October 21, 2011.

Moreover, according to the Rules of Court 3.01 (d) Computation of time, October

21, 2011, is one day past the prescribed time limits, according to Rule 62.20

(b) Filing and Service of Respondents Submission. The Respondents Appeal

Book was not available for pick up at the subject Canada Post Outlet October21, 2011, until 4:31pm or 16:31, as evidenced by the Canada Post tracking

status track history. Appellant Andr Murray has provided the Canada Post


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tracking status track history for the package containing the Respondents

Appeal Book, tracking number RW593170269CA, a print out is attached to the

Affidavit of Andr Murray Dated and Marked EXHIBIT AA.

30. Appellant Andr Murray did make this subject abundantly clear to

Solicitor for Respondent within the very first e-mail correspondence to

Solicitor Thomas Christie on Mon, Jun 7, 2010, that Andr Murray would only

accept Process of Court documents involving Service thereof, only, according

to the Rules of Court. The Rules of Court do not provide for service upon a

non Solicitor by e-mail.

31. As of the filing of this Brief, Appellant Andr Murray contends the

Respondent has not yet served upon the Appellant a Certificate of Respondent

(Form 62G) as is required by Rules of Court 62.10(2), therefore the Respondent

may be deemed to have agreed with the Appellants Amended Certificate of

Appellant.

32. The relevant Rules of Court are as follows:

62.10 Certificate or Agreement of Appellant and

Respondent re Exhibits and Evidence(2) A respondent shall be deemed to have confirmedthe Certificate of Appellant unless, within 15 days afterservice of the Certificate of Appellant, the respondentserves on the appellant a Certificate of Respondent (Form62G).

33. As of the filling this Brief, Appellant Andr Murray verily believes the

Respondent has not yet served upon the Appellant, a Respondents AppealBook, further, to the Appellants knowledge, there are no Rules of Court

regarding Serving a Respondents Appeal Book, in fact there is no Rules of


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Court regarding a Respondents Appeal Book, but it seems appropriate that

same should be served.

34. Appellant Andr Murray contends, the Defendant did not Process the

Court Document Service of the subject Affidavit of Defendant Betty Rose

Danielski, Dated: June 3, 2010, as is required by the Rules of Court 39.01 and

39.04 before the either of the two lower /Court Hearings dates occurring: June

10, 2010 (Madam Justice Garnett) or February 14, 2011 (Madam Justice J. L.

Clendening) and as such is the case, the DEFENDANT was further obliged

According to Rules of Court to then request, that the Court of first instance

overlook this glaring irregularity in Service, so that the Learned Trial Judge

could consider this same Affidavit. This subject negligent omission/ oversight

by the Defendant, regarding lack of required Affidavit service upon the

Plaintiff reoccurred in a second instance, again occurring except before the

subsequent lower Court Hearing of this subject matter, where once again

Processing of Court Document Service was not according to Rules of Court

and again consent was not requested by the Defendant, therefore was notgranted by the presiding learned trail judge hearing the matter.

35. The following facts were submitted for consideration to Madam Justice

J. L. Clendening through Plaintiffs Submission Book 2, of the February 14,

2011 hearing and comprised 30 pages of submission enforced by evidence to

this fact in the Record.

36. The relevant sections of the New Brunswick Rules of Court are

reproduced below:

62.24 Failure to Comply with Rule


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(1) Where a party to an appeal or his solicitor is atfault in failing to comply with this rule, the Court of Appeal

on motion of any other party to the appeal or on theapplication of the Registrar, may(a) if the party failing to comply is the appellant,(i) dismiss the appeal with costs, including thecosts of the motion, or(ii) direct the appellant to perfect the appeal withina specified time,(b) set the appeal down for hearing, or(c) make such other order as may be just including anorder for payment of costs forthwith.

62.20 Filing and Service of Respondents SubmissionNot later than the 20th day of the month preceding themonth in which an appeal is eligible to be heard, eachrespondentshall(a) subject to Rule 62.20.2, file the original and 4copies of the Respondents Submission with the Registrar,and(b) serve a copy of the Respondents Submissionupon each of the parties to the appeal.

37. As a note: The Law Society of New Brunswick Code of ProfessionalConduct, CHAPTER 15 (2)(iii) states The lawyer shall agree to reasonable

requests by another lawyer for an extension of time, the waiver of a procedural

formality and other similar accommodations as long as the position of the

client of the lawyer will not be prejudiced materially by agreeing to the

accommodation. And (vii) The lawyer shall practise the same principles of

good faith and courtesy toward laypersons lawfully representing themselves or

others in a matter as the lawyer is required to observe toward other lawyers.

38. The position of the Solicitor for the Respondent, evidentially taken, in

having not granted consent to a Continuance, (when requested by the


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Appellant/ Plaintiff) reasonably would have advanced the just resolution of the

dispute, moreover, without prejudice or unfairness to the parties, consequently

would have been consistent and in accordance with the Law Society of New

Brunswick Code of Professional Conduct, alternatively the lack thereof has

caused unnecessary delay and expense.

39. The relevant sections of the Law Society of New Brunswick Code of

Professional Conduct CODE OF PROFESSIONAL CONDUCT CHAPTER

FIFTEEN is provided bellow:

COLLEAGUESCHAPTER 15

RULE

The lawyer shall practise good faith, courtesy and collegiality inall contacts with other lawyers and with their representatives.

Good faith, (professional) courtesy, collegiality

2. Without derogating from the broad application intended ofthe elements of the Rule in this chapter the following directivesshall be observed as minimums by the lawyer in practising good

faith, courtesy and collegiality as envisaged by the Rule:

(iii) The lawyer shall agree to reasonable requests by anotherlawyer for an extension of time, the waiver of a proceduralformality and other similar accommodations as long as theposition of the client of the lawyer will not be prejudicedmaterially by agreeing to the accommodation.

(v) The lawyer shall be punctual in fulfilling commitmentsmade to another lawyer and shall respond on a timely basis toall communications from another lawyer that contemplate areply.

(vii) The lawyer shall practise the same principles of good faithand courtesy toward laypersons lawfully representingthemselves or others in a matter as the lawyer is required toobserve toward other lawyers.


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Avoidance of sharp practice

4. The lawyer shall not engage in sharp practice in the practiceof law . Without limiting this proscription the lawyer shall nottake advantage of or act without fair warning upon slips,irregularities or mistakes on the part of another lawyer notgoing to the merits or involving a sacrifice or prejudice of therights of the client. In addition the lawyer shall not imposeupon another lawyer impossible, impractical or manifestlyunfair conditions of trust including those with respect to timerestraints and the payment of penalty interest .

40. It does appear to the Appellant, that the Law Society of New Brunswick

Code of Professional Conduct, CHAPTER 15 (2)(iii), 15 (2) ((v), 15 (2) (vii)

and 15 (4) compels the Respondents Solicitor to not take advantage of slips,

irregularities or mistakes on the part of the Defendant, not going to themerits,

which does notinvolve a prejudice of the rights of the Solicitors client.

For that reason, the Solicitor for the Respondent should have consented to

the reasonable requests for a Continuance.

Good faith, (professional) courtesy, collegiality

(iii) The lawyer shall agree to reasonable requests by anotherlawyer for an extension of time, the waiver of a proceduralformality and other similar accommodations as long as theposition of the client of the lawyer will not be prejudicedmaterially by agreeing to the accommodation.

41. Accordingly, one would expect the same principles of good faith and

courtesy should be extended to a self represented litigant; furthermore, a

common courtesy which are eagerly exchanged between members of the Bar.

In this case the circumstances immediately appear self evident, to any

reasonable person that since the Appellant, has been denied access to all

documentation necessary for a proper discovery, (according to the Mechanics

Lien Act schedule) the subject request of an extension of time, that the


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documents may be retrieved is indisputably reasonable as DISCOVERY is

impossible without the contracts and relative agreements. The position of the

Respondent/Defendant would not have been materially prejudiced by agreeing

to the requested extension of time.

42. In, Blanger v. Roussel, 2006 NBCA 2 (CanLII) Chief Justice Drapeau

C.J.N.B. ruling on an application for Orders under Rule 62.24(1), at paragraph

6 stated as follows:

[6] When ruling on an application under Rule 62.24(1),

the Court must take into account the interests of every party.The Court may show leniency, particularly where theadministration of justice will not be brought into disreputeshould it adopt this approach. While it is true that the Courtmust shape its decision in a way that secures the just, leastexpensive and most expeditious determination of the litigationon its merits, it should always bear in mind that another courthas considered the issues and has outlined a solution that isdesigned to be final and in keeping with this ideal. In this case,the interests of justice would be ill served by an order that isless drastic than the dismissal of the appeal.

43. Though Chief Justice Drapeau C.J.N.B. in, Blanger v. Roussel, was

addressing a dismissal of an appeal for failure to comply with Rule 62.15, the

principals expressed, in the appellants view, still apply.

44. First, as mentioned in Blanger v. Roussel, 2006, supra, when ruling on

an application under Rule 62.24(1), the Court must take into account the

interests of every party. It is in the interest of the Appellant that the Solicitor

for the Respondent complies and adheres to the Rules of Court. When the

Solicitor for the Respondent does not respond to communications from the

Appellant, the result is unnecessary delay, as a consequence, this behavior


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causes the Appellant to be in a position of uncertainty and causes unnecessary

stress, and in a typical example, there is much time spent attempting to

understand why there was no response, the Appellant naturally questions his

own possible errors and as a consequence, consequentially forced to

reasonably find himself researching the Rules of Court studying for the

possibility of discovering errors when in fact it was never necessary.

45. The Appellant should not be placed in a position of having to chase the

Respondents Solicitor to be served documents that the Rule of Court compels

the Respondents Solicitor to serve upon the Appellant according to the Rules

of Court.

46. Furthermore, it is in the interest of the Solicitor for the Respondent to

reply to inquiries, from the other side, because the Law Society of New

Brunswick Code of Professional Conduct compels them to.

47. In Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.)

Justice Deschnes, J.A. such other order as may be just pursuant to Rule

62.24(1)(c) of the Rules of Court at paragraph 2 as follows:

[2] The Notice of Perfected Appeal, dated February 21, 2003is struck out, pursuant to Rule 62.24(1)(c) of the Rules of Court.The Registrar shall issue a Notice of Perfected Appeal when theAppellant files the documents required in accordance with theRules of Court.

48. The Appellant requests that this Court make such other order as may be just

in reflection of the following history established by the behavior of the Respondents

Solicitor.


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

Justice J. Ernest Drapeau stated the following regarding Rule 62.24(1) and

award of costs to a self-represented Appellant, (please see below staring at

page 1 through to and including page 3) as follows:

This is a motion by the respondents, other than Par SyndicationGroup Inc., for an order dismissing the appeal pursuant to Rule62.23(1)(c) of the Rules of Court on the ground that the appellant hasunduly delayed preparation and perfection of his appeal.

Rules 62.15, 62.23(1)(c) and 62.24(1) provide as follows:

.

62.24 Failure to Comply with Rule

(1) Where a party to an appeal or his solicitor is at fault infailing to comply with this rule, the Court of Appeal on motionof any other party to the appeal or on the application of theRegistrar, may

(a) if the party failing to comply is the appellant,

(i) dismiss the appeal with costs, including the costs of themotion, or

(ii) direct the appellant to perfect the appeal within aspecified time,

(b) set the appeal down for hearing, or

(c) make such other order as may be just including an order for

payment of costs forthwith.

Dismissal of an appeal for failure to comply with Rule 62.15 is onlyappropriate "where it is shown that the interests of justice would be ill-served by a less drastic measure." See New Brunswick (Minister of


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Family and Community Services) v. A.N., [2002] N.B.J. No. 373(C.A.)

- 3 -

(Q.L.). The same approach is warranted when Rule 62.23(1)(c) isbrought into play.

In our view, the interests of justice would be better served by anorder under Rule 62.24(1)(a)(ii) directing the appellant to perfect hisappeal within a specified time.

Disposition

The motion for an order under Rule 62.23(1)(c) is dismissed. Theappellant is directed to perfect his appeal on or before December 19,2003, failing which it will stand dismissed. The unique circumstancesof the present case warrant an order of costs against the moving partiesin favour of the self-represented appellant. We fix those costs at $750.There will be no order of costs in favor of Par Syndication Group Inc.

50. As referenced in Michaud v. Robertson, supra, that was an example of an

occasion, the Court found it appropriate to award the self-represented

Appellant an order of costs.

51. The Rules of Court which the Solicitor for the Respondent has a history

of non compliance with, are as follows:

27.03 Service of PleadingsWho is to be Served

(1) Every pleading shall be served(a) initially on every opposite party and on everyother party who has filed and served a pleading or a Notice

of Intent to Defend in the action or in a counterclaim,cross-claim or third or subsequent party claim inthe action, and(b) subsequently on every other party forthwith afterhe files and serves a pleading or a Notice of Intent to


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Defend in the action or in a counterclaim, cross-claimor third or subsequent party claim in the action.

27.04 Time for Filing and Serving Pleadings(1) The time for filing and serving a Statement ofClaim is prescribed by Rule 16.08.(2) The time for filing and serving a Statement of Defenceis prescribed by Rule 20.01.(3) A Reply shall be filed and served within 10 daysafter service of the Statement of Defence.(4) The time for filing and serving pleadings in acounterclaim is prescribed by Rule 28.(5) The time for filing and serving pleadings in across-claim is prescribed by Rule 29.(6) The time for filing and serving pleadings in athird party claim is prescribed in Rule 30.

20.01 Time for Filing and Serving Statement of DefenceSubject to Rule 20.02, a Statement of Defence (Form27A) shall be filed and served(a) within 20 days after service of the Statement ofClaim where the defendant is served in New Brunswick,(b) within 40 days after service of the Statement ofClaim where the defendant is served elsewhere in Canadaor in the United States of America, or(c) within 60 days after service of the Statement ofClaim where the defendant is served anywhere else.

20.02 Notice of Intent to Defend(1) Any defendant served with a Statement of Claimwho intends to defend the action may, within the time limitedfor filing and serving his Statement of Defence, fileand serve a Notice of Intent to Defend (Form 20A).(2) Any defendant who files and serves a Notice ofIntent to Defend within the time limited for so doing, shallhave an additional 10 days within which to file and servehis Statement of Defence, and he shall be deemed to havesubmitted to the jurisdiction of the court.

18.02 How Personal Service Shall be Made(1) Personal service shall be made as follows:Individual

(a) on an individual, other than a person under disability,by leaving a copy of the document with him;


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18.03 Other Ways to Effect Personal ServiceWhere available

(1) With the exception of Rules 33.03 and 55.03,where personal service is required by these rules, any appropriatemethod of service authorized by this subrulemay be used.

Service by Prepaid Mail or Prepaid Courier

(3) Where personal service of a document may bemade by leaving a copy with a person pursuant to Rule18.02(1), such service may be made anywhere in Canadaby sending a copy of the document, together with an Ac-knowledgement of Receipt Card (Form 18A), by prepaidmail or prepaid courier addressed to the person at the lastknown address of the person.(4) Service by prepaid mail or prepaid courier shallbe deemed to have been effected only if any one of the followingis returned to and received by the sender:(a) the Acknowledgement of Receipt Card bearing asignature which purports to be the signature of the personto whom the document was sent;(b) a post office receipt bearing a signature whichpurports to be the signature or a copy of the signatureof the person to whom the document was sent;(c) any other form of acknowledgement of receipt inwriting bearing a signature which purports to be thesignature or a copy of the signature of the person towhom the document was sent; or(d) confirmation in writing from the carrier that thedocument was delivered to the person to whom thedocument was sent.(5) Service by prepaid mail or prepaid courier shallbe deemed to have been effected on the date the sender receivesa receipt or confirmation under paragraph (4).

52. The history of the questionable professional conduct of the Solicitor for

the Respondent (in this matter) as it relates to the Appellant is as follows:

Solicitor and Respondents questionable conduct history:


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53. In a Matter regarding non adherence to the Rules of Court as it pertains

to Court File Number: FC 104 09, Andr Murray v. Betty Rose Danielski, the

Defendant Betty Rose Danieslki (Respondent in this matter) likewise, her

Solicitor appear to share a strong and continued inclination to indulge in

dilatory practice of a significantly serious nature, for that reason deserving of

sanction by this Honorable Court. Appellant Andr Murray alleges that Betty

Rose Danielski (Respondent in this matter) has evaded Service attempts by not

responding to the Appellants (Plaintiff in that matter) attempts at Service, to

the last know place of residence (since confirmed as current) of the Defendant,

Betty Rose Danielski, (Respondent in this matter) in Toronto Ontario,

according to Rules of Court 27.03, Service of Pleadings and pursuant to Rules

of Court, 18.03. Please note: Appellant Andr Murray (Plaintiff in that matter)

was forced to commission a professional Process Server as all other means of

service had been exhausted, further, as it became evident to Appellant Andr

Murray (Plaintiff in that matter) Betty Rose Danielski was avoiding service.

Appellant Andr Murray exhausted all other ways to effect personal service,

Service by Prepaid Mail or Prepaid Courier, of correspondence containing therelative Court Documents

1. Copy of a Claim for Lien Dated April 16, 2009;2. Copy of a Certificate of Pending Litigation Dated April 21, 2009;3. Copy of a Notice of Action (Form 16 B) Dated April 21, 2009;4. Copy of a Statement of Claim (Form 16 C) Dated May 20, 2009;5. Copy of a Amended Statement of Claim (Form 16 C) Dated Aug 21,

2009;


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54. The, as mentioned above, unsuccessful Service attempts, caused the

Appellant to necessarily acquire the services of Canadian Process Servers Inc.

(a professional process service company based in Toronto, Ontario) According

to the Rules of Court the here within listed below Service, was successful

October 19, 2009 as evidenced by Copy of a Affidavit of Service by Process

Server George Mallai Dated, November 9th, 2009 including the following

documents:

1. Copy of a Claim for Lien Dated April 16, 20092. Copy of a Certificate of Pending Litigation Dated April 21, 20093. Copy of a Notice of Action (Form 16 B) Dated April 21, 20094. Copy of a Statement of Claim (Form 16 C) Dated May 20, 2009.5. Copy of a Amended Statement of Claim (Form 16 C) Dated Aug 21,

2009

55. It is significant and noteworthy that reports from the Canadian Process

Servers Inc, indicated unsuccessful service attempts. The process serverGeorge Mallai was of the opinion that Betty Rose Danielski was indeed

avoiding Court Document Service. Consequently, further expense was incurred

by Plaintiff in that matter Andr Murray (Appellant in this matter) as multiple

return visits where required, by process server George Mallai of Canadian

Process Servers Inc to Betty Rose Danielskis Residence and place of

employment. Noteworthy is that the successful Service of Court Documents

upon Betty Rose Danielski by Process Server George Mallai allowed for

subsequent attempts and revealed a significant change in apparent attitude of

Betty Rose Danielski as a contingency Service attempt, where finally accepted

as sent UPS registered Mail, by Plaintiff Andr Murray to two different


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locations, additional copies of the above referenced documents, one set to the

Defendant Betty Rose Danielskis residence was for the first time accepted,

claimed and signed for by Betty Rose Danieslki, after the above mentioned

successful in person service and a second set which was claimed and signed for

which was sent to Fudger House, the place of work of the Defendant Betty

Rose Danielski; please note these addresses had been attempted service

multiple times before, without success, and during times that Betty Danielski

was confirmed as being there by her work colleagues.

56. Subsequent to service of the here within above listed Court documentsserved upon the Defendant in that matter Betty Rose Danielski, Plaintiff Andre

Murray did not receive service of the Defendants Notice of Intent to Defend,

or Demand for Particulars, at any time. Plaintiff Andre Murray did not receive

a phone call, email, regular post mail or registered mail regarding the here

within subject. Plaintiff Andr Murray, is unaware of any in attempt of

personal Service upon Plaintiff Andre Murray and or registered mail attempts

by the Defendant (Respondent in this matter) of the above mentioned

Defendants Notice of Intent to Defend, or Demand for Particulars.

57. The first time the Appellant, became aware of the Defendant Betty Rose

Danielski having retained the services of Solicitor Thomas Christie was not

until Plaintiff Andr Murray (Appellant in this matter) Searched the Court File

(Court File Number: F/C/104/09) in preparation for filing and serving of the

Motion for a Continuance of the Mechanics Lien Action; a Continuance

required because as the Plaintiff Contends existed a complicity between theDefendant Betty Rose Danielski and Mortgagee Holder Royal Bank of

Canadas refusal to allow Defendant Andr Murrays many requests to be

granted access to 29 Marshall Street, Fredericton, so that necessary Court


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documents could be retrieved by the Plaintiff, which were essential and

indispensable necessary to move the (Court File Number: F/C/104/09)

Mechanics Lien Action along to discovery.

58. On the 20th

day of April, 2010, Plaintiff Andr Murray served Solicitor

E. Thomas Christie, for his client Defendant BETTY ROSE DANIELSKI,

with Court File Number: F/C/104/09 a Notice of Motion and supporting

Affidavit by sending a electronic facsimile of the documents accompanied by a

cover page by telephone transmission to Fax: (506) 472 2091 of CHRISTIE

LAW OFFICE, solicitor for Defendant BETTY ROSE DANIELSKI.

59. Affidavit in support of the here within above mentioned Motion, detailed

the reasons for the delay of the necessary Discovery process pursuant to the

Mechanics Lien Act prohibiting the forward movement of the subject action

thus far and stated further reasons necessary for the requested Order for a

Continuance of the Mechanics Lien Action. The Plaintiff received absolutely

no reply by phone, email, regular post letter, registered mail, or other wise any

form of communication regarding the here within subject matter from the

Defendant and Respondent in this matter.

60. The Plaintiff, on the 31st day of May, 2010 served Solicitor for

Defendant BETTY ROSE DANIELSKI, E. Thomas Christie, with the

Amended Notice of Motion and supporting Affidavit 2 by sending a facsimile

of the documents accompanied by a cover page by telephone transmission to

Fax: (506) 472 2091 of CHRISTIE LAW OFFICE, solicitor for DefendantBETTY ROSE DANIELSKI.


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61. The Plaintiff, on the 31st day of May, 2010 served Solicitor for

Defendant E. Thomas Christie, with the Plaintiffs letter to the Defendant

requesting Consent to a Continuance Dated May 31, 2010, by sending a

facsimile of the documents accompanied by a cover page by telephone

transmission to Fax: (506) 472 2091 of CHRISTIE LAW OFFICE, agents

for Defendant BETTY ROSE DANIELSKI (Respondent in this matter).

62. Plaintiff Andr Murray, on the 31st day of May, 2010 served Solicitor

for Defendant BETTY ROSE DANIELSKI, E. Thomas Christie, with Plaintiff

Andr Murrays letter therefore addressed to the Defendant requesting

Documents pursuant to the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6,

section 32(1), Dated May 31, 2010, by sending a facsimile of the documents

accompanied by a cover page by telephone transmission to Fax: (506) 472

2091 of CHRISTIE LAW OFFICE, solicitor for Defendant BETTY ROSE

DANIELSKI.

63.

No response was received by Plaintiff Andr Murray to the abovementioned three separate facsimiles, sent the 31st day of May, 2010,

furthermore, Plaintiff Andr Murray never received a reply by phone, email,

regular post letter, registered mail letter or other wise any form of

communication know to by Plaintiff Andr Murray.

64. Fri, Jun 4, 2010 at 3:40 PM was the first time Plaintiff Andr Murray

received an e-mail from Solicitor Thomas Christie; please see EXHIBIT BB.

65. Plaintiff Andr Murray replied to the above mentioned email

correspondence of Fri, Jun 4, 2010 at 3:40 PM, from Solicitor Thomas


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Christie on date Mon, Jun 7, 2010, by e-mail including two e-mails detailing

the issues that Plaintiff Andr Murray was concerned with, as follows:

In response to your request contained there in, I must respond, that, todate, I have never received any documents from your officewhatsoever.

Notice: I have a problem with my neighbor, whom is for someunexplainable reason, of the habit, that he must cause me to not receivemy Canada Post Mail.Furthermore, I have documented evidence of this same neighborintercepting courier delivery of my correspondence ultimately causingit to never arrive and subsequently refusing to surrender same.

In light of the following, I kindly request that all correspondence whichmust be sent to me, and is required service according to the Rules ofCourt, further, that it be sent by Registered Mail only.Furthermore, kindly provide the tracking number to me directly byemail that I may intercept the delivery of same.Obviously this, in light of the following circumstances, will expeditematters.

66. Further to that point, in the same two above mentioned letters, Plaintiff

Andr Murray requested of Solicitor Thomas Christie acting for the Defendant,

confirmation therefore that the recently faxed documents had been successfully

received as follows:

Question: Please confirm that you received my faxed documents sent05/31/2010 03:07 PM which included 40 pages, consisting of AmendedNotice of Motion dated 31st day of May, 2010 and supporting Affidavit2 Dated 31st day of May, 2010

Also; Please confirm that you received my faxed documents sent

05/31/2010 03:17 PM which included a correspondence Letter ofinquiry regarding Court File Number F/C/104/09 and request of yourClient Defendant Betty Rose Danielski and her cooperation byconsenting to a Continuance of the Mechanics Lien Action pursuant tosection 52.1 (1) (b) of the Mechanics Lien Act.


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Also; Please confirm that you received my faxed documents sent

05/31/2010 03:14 PM which included a correspondence Letterregarding Lienholders Right to Information Mechanics Lien Act,R.S.N.B. 1973, c. M_6

Kindly respond to all of the above at your earliest convenience.Nothing more implied .

I trust you find the following agreeable.

67. The here within above mentioned two Jun 7, 2010 e-mails where never

to the Appellants knowledge replied to. Please see, EXHIBIT CC.

68. Appellant Andr Murray, received a series of e-mails and replied in kind,

from July 19 to July 22, 2010. The essence of the e-mails received from

Solicitor Thomas Christie initially insisted that his client the Respondent must

be provided with a copy of the Transcript from the June 10, 2010 Hearing. The

following position of Thomas Christie was contrary to normal practice

according to client services at COURT OF APPEAL, also the Court reporter

insisted that this was incorrect behavior, furthermore that proper conduct

would have been that Thomas Christie himself should commission a certified

copy from the Court reporter, at his own expense and should not be bothering

Andr Murray with such matters.

69. Next, Appellant Andr Murray, was told by Solicitor Thomas Christie

that the Appellant must serve any amended pleading upon him at a date earlier

than the Rules of Court dictate because of his previously scheduled vacation of

Solicitor Thomas Christie.


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70. Please see EXHIBIT DD to view a copy, of the July 19, to July 22,

2010, e-mails

71. The Appellant Andr Murray, in a series of e-mails of September 2,

2010, out of courtesy attempted to bring attention to a Fax sent the same day as

follows:

As you are aware of my facsimile of this same day .... thought Iwould take this opportunity, regarding Certificate of Readiness'(FORM62HH)

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

Fax.

73. Further in the same e-mail the Plaintiff Andr Murray requested to be

provided with the estimated time Solicitor Thomas Christie required for the

Respondents presentation to the COURT OF APPEAL as follow:

Dear sir ... we must confer, as to the estimated time required, that,which shall be scheduled, with the Court of Appeal, as is provided for,within a 'Certificate of Readiness'.

74. Furthermore in a follow up email 9 minutes after sending the first

September 2, 2010 email to Solicitor Thomas Christie the Appellant asked the

question of the Respondent as follows:

Hello Thomas Christie, Please explain as to why, to date, all of the

documents submitted, on behalf of Betty Rose Danielski and comingfrom your office have the Betty underlined!?

75. The Solicitor Thomas Christie for the Respondent delayed 5 days, and

finally on Solicitor Thomas Christie September 7, 2010 replied to one of the


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Appellants September 2, 2010 e-mails, but not any other email concerning the

question of a peculiar underlined name of Betty Rose Danielski the

Respondent. The Appellant resent the e-mail concerning the question of

peculiar underlined name of Betty Rose Danielski the Respondent. No e-

mail response has ever been returned to the Appellant in this regard.

76. Please see EXHIBIT EE to view a copy, of the September 2, 2010, to

September 7, 2010, e-mails.

77. The Appellant was never served with any Affidavit of Betty Rose

Danielski, prior to the June 10, 2010, Court of Queens Bench hearing and was

not allowed the opportunity to protest the reference to or inclusion of such a

document at the subject June 10, 2010 Hearing before the learned Trial Judge.

78. Subsequently, the Appellant provided the Respondent with the

appropriate list of intended documents, to be used, at the hearing of the

COURT OF APPEAL . This occurred in a timely manner, furthermore, the listevidently was not to the satisfaction of the Solicitor for the Respondent, as he

made it known, that he (under threat of a dubious worded performance

demand) desires the Appellant must include documents to his likening.

Solicitor Thomas Christie therefore protested the absence of certain

Documents. The Solicitor for the Respondent did not stop with unpleasant

email correspondence between him as sent to the Appellant. Nevertheless, the

Solicitor Thomas Christie for Respondent, continued to pursue this penchant,

until he was actually speaking to the Clerks at COURT OF APPEAL Office

attempting to persuade them that Appellant Andr Murray must now provide a

supplementary Appeal Book etcetera. The Appellant responsibly investigated


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the matter further, for that matter found that the inclusion of any material for

the appeal was to the discretion of the Appellant and not in fact necessary to

satisfy the Solicitor for the Respondent as alluded by the Solicitor for the

Respondent.

79. The Solicitor for the Respondent did not Court Document Process Serve

the Respondents Submission upon the Appellant within the prescribed time,

allowable by Rules of Court time limits, in this case last day for service was

October 20, 2010. The Solicitor for the Respondent had been placed on

NOTICE Mon, Jun 7, 2010, by email, please see EXHIBIT CC which is

quoted below:

In light of the following, I kindly request that all correspondencewhich must be sent to me, and is required service according to theRules of Court, further, that it be sent by Registered Mail only.Furthermore, kindly provide the tracking number to me directly byemail that I may intercept the delivery of same.Obviously this, in light of the following circumstances, will expeditematters.

80. Despite the here within above mentioned Jun 7, 2010, NOTICE, to the

Respondent despite this sincere to obtain Respondents Submission; the

Appellant was not served October 20, 2010, with the Respondents

Submission. At 2:00 PM on October 20, 2010, Appellant Andr Murray

sincerely telephoned Client Services of the COURT OF APPEAL (several

times) October 20, 2010, enquiring after the Respondents Submission. I Andr

Murray was told that the Respondents Submission had not yet been filed.


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81. October 20, 2010, Appellant Andr Murray telephoned the Office of the

Solicitor for the Respondent, several times, at various times throughout the

day, but was unsuccessful at reaching the Solicitor for the Respondent.

82. On Thursday, October 21, 2010, Appellant Andr Murray again

telephoned the Office of the Solicitor for the Respondent, several times, at

various times throughout the day but was unsuccessful at reaching the Solicitor

for the Respondent.

83. October 22, 2010, Appellant Andr Murray retrieved a telephone

message from COURT OF APPEAL Client Services, the message conveyed

that Solicitor for the Respondent had indeed filed a Respondents Submission,

approximately 4 pm October 20, 2010, and claimed to have e-mailed a copy of

the document to the Appellant, although, Registrar Micheal Bray confirmed

that the Service by email was not in fact considered Service on a non solicitor

according to the Rules of Court.

84. On Friday, October 22, 2010, at approximately 8:30 AM, Appellant

Andr Murray telephoned the Office of the Solicitor for the Respondent, and

did reach Solicitor Thomas Christie for the Respondent. Appellant Andr

Murray verbalized that the Appellant had not yet received a copy of the

Respondents Submission, furthermore, Andr Murray reinforced earlier

demands therefore confirmed that the Appellant must be served by the

Respondent according to the Rules of Court. Solicitor Thomas Christie for the

Respondent replied that Andr Murrays request was not able to be granted as

he (Solicitor Thomas Christie) was currently preparing to leave Fredericton for

destination Village/city of Woodstock. However and consequentially required


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that Appellant Andr Murray must attend Solicitor Thomas Christie Office

Mail box on Monday (3 days later) at which time the Respondents Submission

would be available. The Respondents Solicitor Thomas Christie continued to

protest these requests for service by the Appellant and insisted should

Appellant be content to wait until Monday. Again, Solicitor Thomas Christie

offered to leave a copy in the mail box of his office on Monday for Appellant

Andr Murray to pick up. The Appellant stated that, the mail box offer would

not suffice and wished to have a copy sent to me right-way, and Appellant

Andr Murray suggested, offering, that local couriers could accomplish the

Document Process Service that very same day, as it was still early morning .

Courier Service was rejected by Solicitor Thomas Christie and instead, the

Appellant was offered Service by facsimile or e-mail of the document. The

Appellant then informed the Solicitor for the Respondent that e-mail and

facsimile is not considered service, upon a non solicitor, according to the Rules

of Court. Thomas Christie persisted inquiring if my e-mail address was the

same as the court document indicated. Which, the Appellant indicated that the

Appellant did not wish a copy sent by email because that email Service is notconsidered service according to the Rules of Court. However, the Appellant

was told that a copy was and or would be sent as a courtesy and would not be

considered service. Finally Appellant despite having stated his position

abundantly clear Solicitor for the Respondent Thomas Christie declared that

registered mail would be the method furthermore, told Appellant the document

would be mailed, but refused to give a time frame by which that would

happen, and the Solicitor for the Respondent, abruptly ended the conversation,

stating that other matters where pressing.


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85. October 22, 2010, immediately, following a telephone conversation with

the Solicitor for the Respondent, Appellant Andr Murray corresponded by

electronic facsimile thereby sending a letter to the Solicitor for the Respondent,

confirming the Appelants position, further, definitive requirements regarding

the matter of Court Document Service upon self represented lay litigant

Appellant Andr Murray.Please see EXHIBIT FF which is a copy, of the

October 22, 2010, the here within above mentioned, a facsimile

correspondence letter to the Office of the Solicitor for the Respondent.

86. Monday, October 25, 2010 Appellant Andr Murray, recovered an

envelope from his mail box that, which had the return address of the Office of

the Solicitor for the (in this matter) Respondent, within the contents of the

envelope was the Respondents Submission. The contents of the envelope was

lacking a Acknowledgement of Receipt Card and acquisition of the envelope

required no signature, contrary to the Rules of Court 18.03 and despite th

105.11.CA Appellant's Brief on Motion to Strike Affidavit material and Costs ordered against a...

Documents

Transcript of 105.11.CA Appellant's Brief on Motion to Strike Affidavit material and Costs ordered against a...