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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 ) -andBETTY ROSE DANIELSKI RESPONDENT (Defendant)

Appellants Brief Motion to Strike and Costs Filed by self represented APPELLANT ANDRE MURRAY

Andr Murray APPELLANT (Plaintiff) 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Telephone Number: (506) 472 - 0205 E-mail address: andremurraynow@ gmail.com

Solicitor for RESPONDENT (Defendant) Betty Rose Danielski E. Thomas Christie, CHRISTIE LAW OFFICE Suite 306, 212 Queen Street Fredericton, New Brunswick Canada, E3B 1A8 Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

Betty Rose Danielski RESPONDENT (Defendant) Apt 603 166 Carlton Street Toronto, Ont. M5A 2K5

Appellants Brief Motion to Strike and Costs Part I INDEX Page Part I INDEX _________________________________________ i PART II STATEMENT OF FACTS ______________________ 1 PART III - ISSUES ______________________________________ 2 A. The Court of Appeal must determine pursuant to Rules 2.03, 2.04, 18.02, 18.03, 27.09, 39.01 and Rule 39.04 of the Rules of Court that the Affidavit of Defendant Betty Rose Danielski, Dated June 3, 2010 be struck out and or not considered by this Court._____________________________________________ 3 The Court of Appeal must determine in the alternative, pursuant to Rule 62.21 and 62.22 (d) of the New Brunswick Rules of Court, directions in a matter of procedure not provided for by the New Brunswick Rules 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;_____________________________________________ 7

B. The Court of Appeal in this matter may determine whether the

following should apply under Rules of Court 62.24 Failure to


Comply with Rule; specifically 62.24(1) (c) of the Rules of

Court that 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) _________________________________ 19 C. Cost Orders in favor of self-represented litigants of the within Motion ___________________________________________ 44 PART IV ORDERS SOUGHT ____________________________ 56 SCHEDULE A - LIST OF AUTHORITIES _______________ 58 SCHEDULE B - TEXT OF RELEVANT PROVISIONS OF STATUTES OR REGULATIONS______ 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 39.04

prior 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, be that as it may, 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

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 to Rules 2.03, 2.04, 18.02, 18.03, 27.09, 39.01 and Rule 39.04 of the Rules of Court that the 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 and 62.22 (d) of the New Brunswick Rules of Court, directions in a matter of procedure not provided for by the New Brunswick Rules 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 the Rules of Court that the Respondent pay of costs of the within Motion and the costs of the Appeal forthwith for noncompliance with Rule 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 which an 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

Therefore not later than the 20th day of 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 Court Rule 62.20 (b) serve a copy of the Respondents Submission upon 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) that the 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 Proceedings A 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 Provided In 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

(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 Service Where 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 Acknowledgement 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 unless directed 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.

(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 Affidavits Except 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 Document The court may strike out any pleading, or other document, or any part thereof, at any time, with or without leave to amend, upon such terms as may be just, on the ground that it (a) may prejudice, embarrass or delay the fair trial of the action, (b) is scandalous, frivolous or vexatious, or (c) is an abuse of the process of the court.

6.

Appellant hereby Motions the Honorable COURT OF APPEAL pursuant to

Rules of Court: Rule 2.03 Attacking 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 has

intentionally 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

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 Brunswick Rules of Court, give directions in a matter of procedure not provided for by the New Brunswick Rules 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 Appeal To Draw Inferences and Make Decisions (1) The Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make 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 a person not a party to the appeal, and make any further order which might have been made if the person had originally been a party, (b) order that service of a Notice of Appeal or Notice of Cross-Appeal be effected by substituted service, or that service be dispensed with, (c) give directions respecting the form and contents of the Appeal Book,

(c) give directions respecting the form and contents of the Appeal Book,
(d) give directions respecting preparation or reproduction of evidence, and (e) vary the requirements of this rule to avoid undue expense or delay or for any 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 a matter 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

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 the matter (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

glaring irregularity in Service, so that the Learned Trial Judge could consider this same Affidavit. 18. The following case example (hereby provided for reference) illustrates the 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 original scheduled 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 by this 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 effect service of a Notice of Claim but fails to serve the Notice of Claim on a defendant in accordance with the terms of the order, can the court grant the claimant a default judgment against the defendant for failing to file a Reply to the Notice of Claim? [33] 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. The provincial court judges determination that he could properly apply the 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.(4th) 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 cannot be cured merely by the fact that such documents have found their way into the possession of the person served. Service must be effected in a manner provided for by the Rules of Court or by such other statutory provision that may apply. Service improperly effected is no service. Where there has been no service of the proceedings leading up to default judgment then the judgment cannot stand, for it was obtained in

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circumstances where the defendant was denied an opportunity to be heard. That cannot be said to be an irregularity [42] Although Miracle Feeds had been argued as an alternative basis on which to set aside the default judgment, the Court said it was not necessary to consider it because the default judgment was a nullity. See also Bains 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 and Equipment I/E Corp. [1999] B.C.J. No. 2046 (S.C.) (QL). [43] In Michalakis v. Nikolitsas (2002) BCSC 1708, default judgment was granted in small claims court at a settlement conference against a defendant who subsequently showed that he had not been served with notice of the conference. The provincial court judge refused to set aside the judgment, drawing a distinction between service of an originating process and an interlocutory process. On judicial review, this court stated that there is no such distinction. Having found that process had been taken against a litigant without notice where notice was required, it was not a case for the exercise of discretion. The judges refusal to set aside the default judgment was contrary to the rules of natural justice, patently unreasonable, and could not stand. [44] I take the following principles from the cases referred to above: 1. requirements for service must be strictly adhered to; service improperly effected is no service; evidence that the proceedings have come to the attention of the other party is not a substitute for proper service; failure to serve proceedings results in any consequent order being nullity; the opposing party is entitled to have such an order set aside as of right;

2.

3.

4.

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5.

the discretionary considerations set out in Miracle Feeds do 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 me is of assistance, it must be mentioned, in fairness to the provincial court judge who declined to set aside the default judgment, that these cases were not provided to him. There was no issue taken before him with the relevance of the tests set out in Miracle Feeds to the application to set aside the default judgment. Result [55] Counsel for the defendant/petitioner suggested that if she were successful in her argument and the default judgment were set aside, she would acknowledge service on behalf of the defendant, file a Reply, and assist in bringing the proceedings to completion before the provincial court. In the alternative, the matter could be directed back to the small claims court for reconsideration in light of this courts reasons. 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 erroneous juxtapositions. 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 both were 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 in Halsbury (4th Ed.) Vol. 37 where in paragraph 430 it is stated: 430. Summary powers to strike out pleadings, dismiss actions and enter judgments. The court is invested with extensive powers to strike out pleadings and thereupon, or for other good reason arising from the making of the claim or defence, to dismiss actions by plaintiffs or to enter judgments against defendants. These powers are both salutary and necessary not only to enforce the basic rules of pleadings but also to dispose of proceedings which are hopeless, baseless or without foundation in law or in equity or are otherwise an abuse of the process of the court. The powers are exercised by the court by summary process, speedily and generally at an early stage of the proceedings, and they operate as a powerful, effective method of disposing of proceedings without a plenary trial. The powers are derived from two parallel sources. First they are conferred by rules of court and secondly they are exercisable under the courts inherent jurisdiction. These sources are cumulative, not alternative, and may be invoked by the parties and employed by the court simultaneously. However, the powers are permissive, not mandatory, and they confer a discretionary jurisdiction which the court will exercise in the light of all the circumstances concerning the offending pleading. This discretion will be exercised by applying two fundamental, although complementary, principles. The first principle is that the parties will not lightly be driven from the seat of judgment, and for this reason the court will exercise its discretionary power with the greatest care and circumspection, and only in the clearest of cases. The second principle is that a stay or even dismissal of proceedings may often be required by the very essence of justice to be done, so as to prevent the parties being harassed and put to expense by frivolous, vexatious or hopeless litigation. 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 or oppression or for ulterior purposes, or, more simply, where the court is misused. In such case, even if the pleading or endorsement does not offend 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 this ground, the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court. 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 exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed; it ought to be exercised sparingly and only in exceptional cases. However, for this purpose the court is entitled to inquire into all the facts and circumstances of the case, and to this end affidavit evidence is admissible. In a proper case the court may exercise its jurisdiction even if the application to strike out is made at a late stage of the proceedings. And, ibid, at para. 443: The most important ground on which the court exercises its inherent jurisdiction to stay proceedings is that of abuse of process. This is a power which, it has been emphasized, ought to be exercised sparingly and only in exceptional cases. It is not confined to cases where the endorsement of the writ or the pleading is an abuse of process, but may be exercised where the abuse extends beyond the endorsement or pleading and is demonstrated by almost inconvertible facts and circumstances proved by affidavit evidence, if necessary. It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed, but that he could not possibly succeed on the basis of the pleadings and the facts of the case.

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20 One further principle applicable is the obvious one that whether an action may be deemed frivolous, vexatious, wholly without merit and/or an abuse of process must be assessed in the context of the particular circumstances of the case. .. [54] The Court concluded that there was no cause of action disclosed 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 an ulterior or collateral purpose. It is defined as the misusing of the process of the courts to coerce someone in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate. It occurs when the process of the court is used for an improper purpose and where there is a definite act or threat in furtherance of such purpose. [63] As to the ingredients required for a valid plea of abuse of process, 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 how properly obtained, for any purpose other than that which it was designed to serve. (Rest. 682) It involves the notion that the proceedings were merely to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate The essential elements of abuse of process are first, a collateral and improper purpose such as extortion, and secondly, a definite act or threat, in furtherance of a purpose not legitimate in the use of the process. Some such overt conduct is essential, because there is clearly no liability when the defendant merely employs regular legal process to its proper conclusion, albeit with bad intentions.

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Frivolity and vexation charges defined [67] In Currie v. Halton Regional Police Services Board 2003 Carswell Ont. 4674 (Ontario Court of Appeal) Justice Armstong deals with the definitions and meaning of the terms `frivolous, `vexatious and `abuse of process. [68] He writes at paragraphs 14 to 17:

14 Blacks Law Dictionary defines frivolous as: Lacking a legal basis 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 the Vexatious Proceedings Act, R.S.O. 1970, c. 481: The word vexatious has not been clearly defined. Under the Act, the legal proceedings must be vexatious and must also have been instituted without reasonable ground. In many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable ground. As a result the proceedings were found to constitute an abuse of the process of the Court. An example of such proceedings is the bringing of one or more actions to determine 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 doctrine of abuse of process, apart from rule 21.01(3)(d), Finlayson J.A. for the majority in Canam Enterprises Inc. v. Coles 2000 CanLII 8514 (ON C.A.), (2000), 51 O.R. (3d) 481 (Ont. C.A.), revd on other grounds 2002 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 of process. Abuse of process is a discretionary principle that is not limited by any set number of categories. It is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy.

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Goudge J.A. for the minority in the same case, stated at paras. 55 and 56: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine un- encumbered by the specific requirement of concepts 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 Court 62.20 (b) served a copy of the 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 Court 62.20 (b) served a copy of the Respondents Submission 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 of
non 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 October 21, 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 confirmed the Certificate of Appellant unless, within 15 days after service of the Certificate of Appellant, the respondent serves on the appellant a Certificate of Respondent (Form 62G).

33. As of the filling this Brief, Appellant Andr Murray verily believes the Respondent has not yet served upon the Appellant, a Respondents Appeal Book, further, to the Appellants knowledge, there are no Rules of Court regarding Serving a Respondents Appeal Book, in fact there is no Rules of

21

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 not granted 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 at fault in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may (a) if the party failing to comply is the appellant, (i) dismiss the appeal with costs, including the costs of the motion, or (ii) direct the appellant to perfect the appeal within a specified 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. 62.20 Filing and Service of Respondents Submission Not later than the 20th day of the month preceding the month in which an appeal is eligible to be heard, each respondent shall (a) subject to Rule 62.20.2, file the original and 4 copies of the Respondents Submission with the Registrar, and (b) serve a copy of the Respondents Submission upon each of the parties to the appeal. 37. As a note: The Law Society of New Brunswick Code of Professional Conduct, 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:
COLLEAGUES CHAPTER 15 RULE The lawyer shall practise good faith, courtesy and collegiality in all contacts with other lawyers and with their representatives. Good faith, (professional) courtesy, collegiality 2. Without derogating from the broad application intended of the elements of the Rule in this chapter the following directives shall 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 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. (v) The lawyer shall be punctual in fulfilling commitments made to another lawyer and shall respond on a timely basis to all communications from another lawyer that contemplate a reply. (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.

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Avoidance of sharp practice 4. The lawyer shall not engage in sharp practice in the practice of law . Without limiting this proscription the lawyer shall not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of another lawyer not going to the merits or involving a sacrifice or prejudice of the rights of the client. In addition the lawyer shall not impose upon another lawyer impossible, impractical or manifestly unfair conditions of trust including those with respect to time restraints 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 the merits, which does not involve 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 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.

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 the administration of justice will not be brought into disrepute should it adopt this approach. While it is true that the Court must shape its decision in a way that secures the just, least expensive and most expeditious determination of the litigation on its merits, it should always bear in mind that another court has considered the issues and has outlined a solution that is designed to be final and in keeping with this ideal. In this case, the interests of justice would be ill served by an order that is less 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, 2003 is struck out, pursuant to Rule 62.24(1)(c) of the Rules of Court. The Registrar shall issue a Notice of Perfected Appeal when the Appellant files the documents required in accordance with the Rules 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 Syndication Group Inc., for an order dismissing the appeal pursuant to Rule 62.23(1)(c) of the Rules of Court on the ground that the appellant has unduly delayed preparation and perfection of his appeal. 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 in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may (a) if the party failing to comply is the appellant, (i) dismiss the appeal with costs, including the costs of the motion, or (ii) direct the appellant to perfect the appeal within a specified 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 only appropriate "where it is shown that the interests of justice would be illserved 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) is brought into play. In our view, the interests of justice would be better served by an order under Rule 62.24(1)(a)(ii) directing the appellant to perfect his appeal within a specified time. Disposition The motion for an order under Rule 62.23(1)(c) is dismissed. The appellant is directed to perfect his appeal on or before December 19, 2003, failing which it will stand dismissed. The unique circumstances of the present case warrant an order of costs against the moving parties in favour of the self-represented appellant. We fix those costs at $750. There will be no order of costs in favor of Par Syndication Group Inc. 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 Pleadings Who is to be Served (1) Every pleading shall be served (a) initially on every opposite party and on every other 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 in the action, and (b) subsequently on every other party forthwith after he files and serves a pleading or a Notice of Intent to

29

Defend in the action or in a counterclaim, cross-claim or 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 of Claim is prescribed by Rule 16.08. (2) The time for filing and serving a Statement of Defence is prescribed by Rule 20.01. (3) A Reply shall be filed and served within 10 days after service of the Statement of Defence. (4) The time for filing and serving pleadings in a counterclaim is prescribed by Rule 28. (5) The time for filing and serving pleadings in a cross-claim is prescribed by Rule 29. (6) The time for filing and serving pleadings in a third party claim is prescribed in Rule 30. 20.01 Time for Filing and Serving Statement of Defence Subject to Rule 20.02, a Statement of Defence (Form 27A) shall be filed and served (a) within 20 days after service of the Statement of Claim where the defendant is served in New Brunswick, (b) within 40 days after service of the Statement of Claim where the defendant is served elsewhere in Canada or in the United States of America, or (c) within 60 days after service of the Statement of Claim where the defendant is served anywhere else. 20.02 Notice of Intent to Defend (1) Any defendant served with a Statement of Claim who intends to defend the action may, within the time limited for filing and serving his Statement of Defence, file and serve a Notice of Intent to Defend (Form 20A). (2) Any defendant who files and serves a Notice of Intent to Defend within the time limited for so doing, shall have an additional 10 days within which to file and serve his Statement of Defence, and he shall be deemed to have submitted 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 Service Where 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 Acknowledgement 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).

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 the relative 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, 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 55. It is significant and noteworthy that reports from the Canadian Process Servers Inc, indicated unsuccessful service attempts. The process server George 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

33

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 documents served 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 the Defendant 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

34

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 Defendant BETTY 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 above mentioned 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, to date, I have never received any documents from your office whatsoever. Notice: I have a problem with my neighbor, whom is for some unexplainable reason, of the habit, that he must cause me to not receive my Canada Post Mail. Furthermore, I have documented evidence of this same neighbor intercepting courier delivery of my correspondence ultimately causing it to never arrive and subsequently refusing to surrender same. In light of the following, I kindly request that all correspondence which must be sent to me, and is required service according to the Rules of Court, further, that it be sent by Registered Mail only. Furthermore, kindly provide the tracking number to me directly by email that I may intercept the delivery of same. Obviously this, in light of the following circumstances, will expedite matters. 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 sent 05/31/2010 03:07 PM which included 40 pages, consisting of Amended Notice of Motion dated 31st day of May, 2010 and supporting Affidavit 2 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 of inquiry regarding Court File Number F/C/104/09 and request of your Client Defendant Betty Rose Danielski and her cooperation by consenting to a Continuance of the Mechanics Lien Action pursuant to section 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 Letter regarding 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 I would 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 coming from 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 email 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 list evidently 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

40

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 correspondence which must be sent to me, and is required service according to the Rules of Court, further, that it be sent by Registered Mail only. Furthermore, kindly provide the tracking number to me directly by email that I may intercept the delivery of same. Obviously this, in light of the following circumstances, will expedite matters.

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 not considered 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 the request, as mentioned earlier here within above, made to the Solicitor for the Respondent, who had by email correspondence from the APPELANT been for that reason, placed on NOTICE Mon, Jun 7, 2010, please see EXHIBIT CC. The Appellant offers that the Respondents Submission document was received by the Appellant 5 days late, according to the rules of court, and still had not been properly served according to the Rules of Court. Please see TAB EXHIBIT GG a copy of the subject envelope.

C. Cost Orders in favor of self-represented litigants 87. In McNichol v. Co-operators General Insurance Company, 2006 NBCA 54 (CanLII), Chief Justice J. ERNEST DRAPEAU, addresses cost orders in

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favor of self-represented Litigants. (Please see below, at paragraph 41 through to and including paragraph 45), as follows: IV. Conclusion and Disposition

[41] The Rules of Court invoked by the respondent, Co-Operators General Insurance Co., in support of its motion for dismissal of the appellants action, Rules 23.01(2)(a) and (b), have no application here. Those rules do not allow for the determination prior to trial of the appellants entitlement to damages from Co-Op for its alleged bad faith in the handling of his SEF #44 claim. Moreover, the defence relied upon by Co-Op, res judicata, does not come into play since there is no prior judicial decision susceptible of triggering its application. For those reasons, and after hearing the parties, we allowed the appeal and brought the proceedings to a close with the following ancillary orders. [42] Mr. McNichol asked for the immediate reimbursement of the costs and disbursements that he was required to pay pursuant to the judgment under appeal. His entitlement to that relief being unarguable, we so ordered. [43] Mr. McNichol, who is self-represented, also requested costs on the motion in the court below and on appeal. In Proenca v. Squires Home Improvements and Total Renovations Ltd. 2001 NBCA 45 (CanLII), (2001), 252 N.B.R. (2d) 274 (C.A.), Deschnes, J.A., writing for a unanimous court, makes the following observations regarding the appropriateness of cost orders in favor of self-represented litigants at paras. 19-20: The trial judge awarded costs of $1,500.00 to the Proencas to be paid by Squires. The Proencas, however, are unrepresented lay litigants and as party and party costs are generally intended to partly indemnify the recipient for the cost he or she must pay his or her own lawyer, such costs are not usually allowed to unrepresented litigants. See Bolands Ltd. v. Buckley and

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052897 N.B. Ltd. reflex, (1997), 186 N.B.R. (2d) 72. (N.B.C.A.) and Harris v. Harris 1991 CanLII 2663 (NB Q.B.), (1991), 122 N.B.R. (2d) 1. Rule 59.01, however, makes it clear that costs are in the discretion of the trial court who can determine by whom and to what extent costs shall be paid and that such costs can be fixed with or without reference to a tariff. In addition, there appears to be a modern trend regarding the granting of costs to unrepresented lay litigants. Please see an excellent discussion in M.M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, ON: Carswell, 2000) at 209.15 entitled "Party in Person". Please also see: Fong v. Chan 1999 CanLII 2052 (ON C.A.), (1999), 46 O.R. (3d) 330 (Ont. C.A.). Please See, as well:, Skidmore v. Blackmore 1995 CanLII 1537 (BC C.A.), (1995), 2 B.C.L.R. (3d) 201 (C.A.); Huet v. Lynch 2001 ABCA 37 (CanLII), (2001), 91 Alta. L.R. (3d) 1 (C.A.); Dechant v. Stevens 2001 ABCA 39 (CanLII), (2001), 89 Alta. L.R. (3d) 246 (C.A.) and Collins v. Collins 1999 ABQB 707 (CanLII), (1999), 72 Alta. L.R. (3d) 300 (Q.B.). [44] After due consideration, we concluded that the case at bar was one that called for the exercise of our discretion under Rule 59.01 in a manner favorable to the self-represented litigant. We came to that conclusion primarily because of the frivolous nature of Co-Ops motion for dismissal under Rules 23.01(2)(a) and (b), and the improper and inaccurate evidence provided at the hearing in the court below by counsel for Co-Op concerning Mr. McNichols testimony at discovery. In the result, we ordered Co-Op to pay costs throughout, which were fixed at $5,000, in addition to all reasonable disbursements.

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[45] Finally, we referred back to the Court of Queens Bench the determination of the outstanding discovery-related prayers for relief in Co-Op's motion. In closing, we express the hope that the parties will make every reasonable effort to resolve their dispute on that subject and, more generally, that they will cooperate in securing the just, least expensive and most expeditious determination of the action on its merits. 88. As stated by Chief Justice J. ERNEST DRAPEAU above in McNichol v. Co-operators General Insurance Company, 2006 , supra, Rule 59.01, however, makes it clear that costs are in the discretion of the trial court who can determine by whom and to what extent costs shall be paid and that such costs can be fixed with or without reference to a tariff. In addition, there appears to be a modern trend regarding the granting of costs to unrepresented lay litigants.

89. The Appellant argues that after due consideration, this Honorable Court may conclude similarly to the Court above in McNichol v. Co-operators General Insurance Company, 2006, supra, that the case before this Honorable Court is one that calls for the exercise of the Courts discretion under Rule 59.01 in a manner favorable to the self-represented Appellant IN THIS MATTER.

90. For convenience of this Honorable Court Rule 59.01, and 62.24 of the Rules of Court is reproduced below as follows: 59.01 Authority of the Court (1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid.

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62.24 Failure to Comply with Rule (1) Where a party to an appeal or his solicitor is at fault in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may (a) if the party failing to comply is the appellant, (i) dismiss the appeal with costs, including the costs of the motion, or (ii) direct the appellant to perfect the appeal within a specified 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.

91. As similarly stated above in McNichol v. Co-operators General Insurance Company, 2006, supra, this Honorable Court may come to that same conclusion, in regard to the frivolous, irresponsible and callous nature of the Defendant in this matter, unbecoming behavior, and numerous irregularities in Process before the either of the two lower /Court Hearings: June 10, 2010 (Madam Justice Garnett) or February 14, 2011 (Madam Justice J. L. Clendening) as well as the first COURT OF APPEAL Hearing November 9, 2010 and now this current COURT OF APPEAL Hearing.

92. Following the lead of the above quoted Court Decision, McNichol v. Cooperators General Insurance Company, 2006, supra, this Honorable Court may find it appropriate to Order the Respondent to pay costs throughout, which may be similarly fixed at $5,000, in addition to all reasonable disbursements.

93. In Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) Justice Robert J. Sharpe J.A stated as follows, regarding the right of self-represented lay litigants to recover Costs. (Please see below, from paragraph 15 though to and including paragraph 27), as follows:

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[15] The appellant relies on a number of decisions, discussed below, on the right of self-represented lay litigants to recover costs. The appellant submits that those cases establish that lay litigants may be awarded costs, including counsel fee, and that it follows that self-represented solicitors must be similarly entitled. [16] Dicta from the Chorley case, supra, was long thought to preclude recovery by self-represented lay litigants of any costs beyond disbursements. In Chorley, the English Court of Appeal stated that the opportunity cost rationale did not apply to selfrepresented lay litigants. In the courts view, a selfrepresented litigant who is not a solicitor should not be entitled to recover costs as such a party does not bring professional skill and competence to the case and a litigants own time and trouble is not a pecuniary loss which the law can measure. Bowen L.J. held that the common law rule precluded recovery, but noted that the Court of Chancery had on occasion allowed a reasonable allowance for the self-represented litigants loss of time. He quoted a leading text on Chancery practice, Lushs Practice (3d ed.) at 896: A party not an attorney, suing or defending in person, is entitled to no more than his expenses out of pocket or at most to a reasonable allowance beyond for his loss of time. [17] In more recent times, the English courts recognized the inconsistency of allowing self-represented lawyers to recover for their time while refusing the same right to lay litigants. In Buckland v. Watts [1970] 1 Q.B. 27 at 31, Donaldson J. observed that in principle the opportunity cost rationale applied equally to self-represented lay litigants, and that their time could be compensated with appropriate modification for lack of professional skill and training. However, Donaldson J. held that he was not free to depart from past authority, and he disallowed the lay litigants claim. His decision was upheld on appeal: [1970] 1 Q.B. 27 at 35-38. The anomaly in the United Kingdom was removed by legislation that now allows lay litigants to recover costs: Litigants in Person (Costs and Expenses ) Act (U.K.), 1975, c. 47.

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[18] In an early Ontario case, Millar v. Macdonald (1892), 14 P.R. 449 (Div. Ct.) at 501, the Chancery rule, referred to above, was applied. Boyd C. held that the successful self-represented defendant was to be awarded disbursements and some allowance, but of a moderate description, for his time and trouble on the argument. Boyd C. noted, however, that the award was exceptional, and was made because the defendant had been faced with committal for contempt. [19] While there appears to be little Ontario authority on the subject, appellate courts in two provinces have held that selfrepresented lay litigants may be awarded costs. In Macbeth v. Dalhousie College and University (1986), 10 C.P.C. (2d) 69, the Nova Scotia Court of Appeal held that a self-represented lay litigant was entitled to recover costs primarily on the basis that the common law rule precluding such recovery constituted a denial of equality rights guaranteed by s. 15 of Charter of Rights and Freedoms. This reasoning was superceded by subsequent decisions of the Supreme Court of Canada precluding the direct application of the Charter to common law rules governing litigation between private parties (Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd., 1986 CanLII 5 (S.C.C.), [1986] 2 S.C.R. 573) and insisting on the need to establish discrimination on an enumerated or analogous ground to support a s.15 claim (Andrews v. Law Society of Upper Canada, [1989] 1 S.C.R. 143). In Law Society of Prince Edward Island v. Johnston, 1988 CanLII 1365 (PE S.C.A.D.), (1988), 54 D.L.R. (4th) 18, the Prince Edward Island Court of Appeal, referring to Dolphin Delivery, supra, held that the Charter did not apply to the claim of a self represented litigant to costs. That court also rejected the claim on the ground that costs could only be awarded on an indemnity basis. [20] The British Columbia Court of Appeal arrived at the same result achieved in the Macbeth case without resort to the Charter. In Skidmore v. Blackmore 1995 CanLII 1537 (BC C.A.), (1995), 122 D.L.R. (4th) 330, a five judge panel of the British Columbia Court of Appeal

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overruled the courts earlier decision in Kendall v. Hunt (1979), 106 D.L.R. (3rd) 277, which held that self-represented litigants could not recover costs in excess of disbursements. In Skidmore, the court found that the 19th century English rule reflected by the Chorley and Buckland cases could no longer be justified. Cumming J.A. pointed out that modern cost rules reflected a variety of purposes. While indemnity remained one important element, costs were also ordered or withheld as a means of controlling behaviour by discouraging frivolous suits or meritorious defences, and as a way of sanctioning unnecessary steps in litigation, as well as misconduct by litigants or their counsel. Modern costs rules also were designed to promote and encourage settlements. In Cumming J.A.s view, it was important for the court to have at its disposal full costs sanctions, whether litigants were represented or unrepresented. Moreover, the refusal to allow self-represented costs on indemnity grounds was difficult to justify as the time is money rationale applies every bit as much to the lay litigant as to the self-represented lawyer. Cumming J.A. noted that any difficulty in measuring the amount to which the lay litigant is entitled could be answered in British Columbia by strict application of the tariff. Finally, it was held that the court was competent to effect this change in the common law as (at 342) the matter of costs is a question essentially within the discretion of the court, it bears directly on matters of practice, and it is something on which this court is well situated to rule. [21] It is apparent from this review of the case law that the preponderance of modern authority supports the contention that both self-represented lawyers and self-represented lay litigants may be awarded costs and that such costs may include allowances for counsel fees. Since the Chorley decision in 1884, it seems not to have been doubted that self-represented solicitors could recover costs for solicitors fees. The respondents did not take issue with that proposition on this appeal. Johnson v. Ryckman, supra stands for the proposition that a self-represented solicitor could not recover anything for counsel fee, but as I have already noted, it was acknowledged in that case that there seemed to be no rationale for the rule. I am not persuaded by the respondents submission that this 1903 case, which rests on

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such a shaky foundation, should continue to govern us today. Johnson v. Ryckman has been superceded by more recent cases that have quite properly ignored the untenable distinction between solicitors fees and counsel fees. I can see no reason for maintaining the distinction between solicitors fees and counsel fees that was already outmoded almost one hundred years ago. The legislatures decision to allow parties to recover costs in relation to the work of salaried employees provides added impetus to reject the view that self-represented solicitors should be precluded from recovering costs. Two provincial appellate courts have held that lay litigants may recover costs, including counsel fees. The clear trend of both the common law and the statutory law is to allow for recovery of costs by self-represented litigants. [22] Quite apart from authority and as a matter of principle, it seems to me to be difficult to justify a categorical rule denying recovery of costs by self-represented litigants. As noted in the Fellowes McNeil, supra and in Skidmore, supra, modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. It seems to me that all three purposes are fostered by allowing the trial judge a discretion to award costs to self-represented litigants. [23] Since the Chorley case over one hundred years ago, it had been accepted that self-represented lawyers are entitled to indemnity on the time is money or opportunity cost rationale. It is difficult to see why the opportunity cost rationale should not be more generally applicable to self-represented litigants. The self-represented lawyer possesses legal skills, but lacks professional detachment when acting in his or her own cause. If the law is prepared to compensate lawyers for this loss of time when devoting their efforts to their own cause, I fail to see any basis for denying the same entitlement to self-represented lay litigants who are able to demonstrate the same loss. [24] A rule precluding recovery of costs, in whole or in part, by self-represented litigants would deprive the court of a

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potentially useful tool to encourage settlements and to discourage or sanction inappropriate behaviour. For example, an opposite party should not be able to ignore the reasonable settlement offer of a self-represented litigant with impunity from the usual costs consequences. Nor, in my view, is it desirable to immunize such a party from costs awards designed to sanction inappropriate behaviour simply because the other party is a self-represented litigant. [25] I would add that nothing in these reasons is meant to suggest that a self-represented litigant has an automatic right to recover costs. The matter remains fully within the discretion of the trial judge, and as Ellen Macdonald J. observed in Fellows, McNeil v. Kansa, supra, there are undoubtedly cases where it is inappropriate for a lawyer to appear in person, and there will be cases where the self-represented litigants conduct of the proceedings is inappropriate. The trial judge maintains a discretion to make the appropriate costs award, including denial of costs. [26] I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The selfrepresented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a selfrepresented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear

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guidelines to the Assessment Officer as to the manner in which the costs are to be assessed. CONCLUSION [27] For these reasons, I would allow the appeal, and set aside the Certificate. It is still necessary to determine whether the amounts claimed for the salaried associates, partners and articling student are reasonable. Accordingly, I would refer the matter back to the Assessment Officer with a direction that the costs be assessed in accordance with these reasons. The appellant is also entitled to costs of the Assessment and of this appeal. 94. As stated in Fong, et al v. Chan, et al, 1999, supra, Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer (for the reason) retained to conduct the litigation, and that as a result, they incurred an opportunity cost' by foregoing remunerative activity such as is the case with the Appellant in this matter before this Court. It is abundantly clear that the Appellant in this matter devoted copious amounts of his time over many months of his time and effort to present some very interesting and thought-provoking legal argument ordinarily done by a lawyer, and is evidenced in the quality and the voluminous material presented to the Court for consideration in this matter.

95. The Appellant contends, that, it is has been, and remains, well established by the courts, that lay litigants may recover costs proportional (to lawyers), including counsel fees, which is clearly a trend, of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

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96. As stated above in Fong, et al v. Chan, et al, 1999, supra, as a matter of principle, it seems difficult to justify a categorical rule on one hand encouraging cost recovery, alternatively, thereby (for same degree of meritorious efforts) denying self-represented litigants recovery of costs.

97. As stated above in above in Fong, et al v. Chan, et al, 1999, supra, paragraph 22 modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. All three purposes are fostered by allowing the trial judge discretion to award costs to self-represented litigants. 98. Self-represented lawyers are entitled to indemnity on the time is money or opportunity cost rationale and it is difficult to see why the opportunity cost rationale should not be more generally applicable to self-represented litigants, such as the Appellant in this matter before this Honorable Court.

99. Self-represented litigants must possess skills for which they customarily are remunerated on a regular work week basis, therefore, if the law is prepared to compensate lawyers for loss of time when devoting their efforts to their own cause, the same remuneration entitlement should extend to selfrepresented lay litigants who are able to demonstrate the same loss.

100. Costs may be awarded to those lay litigants, who demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer, therefore, retained to conduct the litigation, further, that as a result, they incurred

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according to opportunity cost rationale costs by foregoing remunerative activity, additionally, useful Costs are a useful tool of the Court to encourage settlements or to discourage and or sanction inappropriate behavior.

101. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self- represented litigant, accordingly, the trial judge may when making such an award either fix the costs or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed.

102. Having considered the above, here within provided arguments for costs, this Honorable COURT OF APPEAL may find it appropriate to Order the Respondent to pay costs throughout, in addition to all reasonable disbursements.

ALL OF THIS respectfully submitted this ___day of ______________2011. PART IV ORDERS SOUGHT I. Order pursuant to Rules 2.03, 2.04, 18.02, 18.03, 27.09, 39.01 and Rule 39.04 of the Rules of Court that the Affidavit of Defendant Betty Rose Danielski, Dated June 3, 2010 be struck out and or not considered by this Court.

II.

Order, pursuant to Rule 62.21 and 62.22 (d) of the New Brunswick Rules of Court, the Affidavit of Defendant Betty Rose Danielski, Dated June 3, 2010 so that it be struck out and or not considered by this Court;

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III.

Under Rule 62.24 Failure to Comply with Rule and Rule 62.24(1) and 62.24(1) (c) of the Rules of Court for an order that the Respondent pay costs of the within Motion and the costs of the Appeal forthwith, for dilatory practice and non-compliance with Rule 62.20 Filing and Service
of Respondents Submission. Under that rule, the Respondent should have, according to the Rules of Court (b) serve a copy of the Respondents Submission upon the Appellant, not later than the 20th day of October, 2010, but did not.

IV.

Should this Honorable Court not find grounds sufficient to award the Appellant costs pursuant to the here within as Appellant above contended non-compliance and or for the evident dilatory practice by the Respondent contrary to Rule 62.20; 62.24(1) and 62.24(1) (c) In the alternative the Appellant seeks Orders that the Respondent shall pay costs of the within Motion.

V.

Such further and other relief as to this Honorable COURT OF APPEAL may appear just.

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SCHEDULE A - LIST OF AUTHORITIES A list of authorities in the order referred to in the Submission; and 1. Reference: 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: url link is provided as follows: http://canlii.ca/s/u02v

2. 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; service improperly effected is not service at all, from paragraph 32 through to and including paragraph 55: url link is provided below: http://canlii.ca/s/z96h 3. In Moncton Family Outfitters et al. v. Schelew, 2005 NBQB 273 (CanLII) an abuse of the process of the court is described as arising where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the court is misused. Justice Peter S. Glennie stated at a paragraph 49 through to including 68 as follows: url link is provided as follows: http://canlii.ca/s/s24e

4. Reference: In, Blanger v. Roussel, 2006 NBCA 2 (CanLII) Chief Justice Drapeau C.J.N.B. stated the following regarding ruling on an application under Rule 62.24(1); Url link is provided as follows: http://canlii.ca/s/skbr

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5. Reference: In Charlebois v. Saint John (City of), 2003 CanLII 26208 (NB C.A.) Justice Deschnes, J.A. makes such other order as may be
just pursuant to Rule 62.24(1)(c) of the Rules of Court; (may it please

the Court; at paragraph 2) url link is provided below: http://canlii.ca/s/nnbo 6. Reference: In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The Honorable Chief Justice J. Ernest Drapeau regarding Rule 62.24(1) did take a position on this matter finally awarding costs to a selfrepresented appellant; (may it please the Court; beginning at page 1 until and including page 3)url link is provided below: http://canlii.ca/s/12m

7. Reference: McNichol v. Co-operators General Insurance Company, 2006 NBCA 54 (CanLII), Chief Justice J. ERNEST DRAPEAU, addresses cost orders in favor of self-represented Litigants. Please see below, at paragraph 41 through to and including paragraph 45 url link is provided below: http://canlii.ca/s/t2t5 8. Reference: In Fong, et al v. Chan, et al, 1999 CanLII 2052 (ON C.A.) Justice Robert J. Sharpe J.A stated regarding the right of selfrepresented lay litigants to recover Costs. Please see, from paragraph 15 though to and including paragraph 27, url link is provided below: http://canlii.ca/s/p2rh

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SCHEDULE B TEXT OF RELEVANT PROVISIONS OF STATUTES OR REGULATIONS

2.03 Attacking the Regularity of Proceedings A 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 Provided In 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 (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 Service Where 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 Acknowledgement 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;

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(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). 18.07.1 Service by Electronic Mail (1) Where service of a document on a solicitor is authorized under Rule 18.03(2) or where service of a document on the solicitor of record is authorized or required by these rules, the document may also be served by attaching a copy of the document to an e-mail message sent to the solicitors e-mail address in accordance with paragraph (2). Service under this paragraph is effective only if the solicitor being served provides by e-mail to the sender an acceptance of service and the date of the acceptance, and where the e-mail acceptance is received between 4 p.m. and midnight, service shall be deemed to have been made on the following day. (2) The e-mail message to which a document served under paragraph (1) is attached shall include: (a) the senders name, address, telephone number, fax number and e-mail address; (b) the date and time of transmission; (c) the name and telephone number of a person to contact in the event of transmission problems. 20.01 Time for Filing and Serving Statement of Defence Subject to Rule 20.02, a Statement of Defence (Form 27A) shall be filed and served (a) within 20 days after service of the Statement of

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Claim where the defendant is served in New Brunswick, (b) within 40 days after service of the Statement of Claim where the defendant is served elsewhere in Canada or in the United States of America, or (c) within 60 days after service of the Statement of Claim where the defendant is served anywhere else. 20.02 Notice of Intent to Defend (1) Any defendant served with a Statement of Claim who intends to defend the action may, within the time limited for filing and serving his Statement of Defence, file and serve a Notice of Intent to Defend (Form 20A). (2) Any defendant who files and serves a Notice of Intent to Defend within the time limited for so doing, shall have an additional 10 days within which to file and serve his Statement of Defence, and he shall be deemed to have submitted to the jurisdiction of the court. 27.03 Service of Pleadings Who is to be Served (1) Every pleading shall be served (a) initially on every opposite party and on every other 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 in the action, and (b) subsequently on every other party forthwith after he files and serves a pleading or a Notice of Intent to Defend in the action or in a counterclaim, cross-claim or 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 of Claim is prescribed by Rule 16.08. (2) The time for filing and serving a Statement of Defence is prescribed by Rule 20.01. (3) A Reply shall be filed and served within 10 days after service of the Statement of Defence. (4) The time for filing and serving pleadings in a

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counterclaim is prescribed by Rule 28. (5) The time for filing and serving pleadings in a cross-claim is prescribed by Rule 29. (6) The time for filing and serving pleadings in a third party claim is prescribed in Rule 30.
27.09 Striking Out a Pleading or Other Document The court may strike out any pleading, or other document, or any part thereof, at any time, with or without leave to amend, upon such terms as may be just, on the ground that it (a) may prejudice, embarrass or delay the fair trial of the action, (b) is scandalous, frivolous or vexatious, or (c) is an abuse of the process of the court.

39.01 By Affidavit (1) On a motion or application evidence may be given by affidavit unless directed 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. (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 exhibit ts 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.

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39.04 Service of Affidavits Except 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.

59.01 Authority of the Court (1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid.
62.10 Certificate or Agreement of Appellant and Respondent re Exhibits and Evidence (2) A respondent shall be deemed to have confirmed the Certificate of Appellant unless, within 15 days after service of the Certificate of Appellant, the respondent serves on the appellant a Certificate of Respondent (Form 62G). 62.13 Appeal Book (1) The appellant shall prepare an Appeal Book which shall contain, in the following order, and where applicable (a) an index (a.1) a Certificate of Readiness (Form 62HH), (b) a copy of the Notice of Appeal, Supplementary Notice of Appeal, Notice of Cross-Appeal, and Notice of Contention, (c) a copy of any order granting leave to appeal, (d) a copy of any order respecting the conduct of the appeal, (e) a copy of the pleadings as amended, including particulars and admissions, (f) a copy of the order or decision appealed from and of the formal judgment of the trial court (g) a copy of the certificates or agreement referred to in Rule 62.10, and (h) a copy of any affidavit evidence, or (i) in place of items (g) and (h), any Statement of

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Facts agreed to under Rule 62.12. (2) The Registrar may refuse to accept an Appeal Book that does not comply with this subrule or that is not legible.

62.21 Powers of Court of Appeal To Draw Inferences and Make Decisions (1) The Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require. Further Evidence (2) The Court of Appeal or a judge thereof may receive evidence (a) on interlocutory applications, (b) as to matters which have occurred after the date of the order or decision appealed from, and (c) on special grounds, upon any question of fact. 62.20 Filing and Service of Respondents Submission Not later than the 20th day of the month preceding the month in which an appeal is eligible to be heard, each respondent shall (a) subject to Rule 62.20.2, file the original and 4 copies of the Respondents Submission with the Registrar, and (b) serve a copy of the Respondents Submission upon each of the parties to the appeal.

62.24 Failure to Comply with Rule (1) Where a party to an appeal or his solicitor is at fault in failing to comply with this rule, the Court of Appeal on motion of any other party to the appeal or on the application of the Registrar, may (a) if the party failing to comply is the appellant, (i) dismiss the appeal with costs, including the costs of the motion, or (ii) direct the appellant to perfect the appeal within a specified time,

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(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. The Law Society of New Brunswick Code of Professional Conduct CODE OF PROFESSIONAL CONDUCT CHAPTER FIFTEEN COLLEAGUES CHAPTER 15 RULE The lawyer shall practise good faith, courtesy and collegiality in all contacts 1 with other lawyers and with their representatives . Good faith, (professional) courtesy, collegiality 2. Without derogating from the broad application intended of the elements of the Rule in this chapter the following directives shall 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 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 accommdation . (v) The lawyer shall be punctual in fulfilling commitments made to another lawyer and shall respond on a timely basis to all communications from another lawyer that contemplate a reply . (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 . Avoidance of sharp practice 17 4. The lawyer shall not engage in sharp practice in the practice of law . Without limiting this proscription the lawyer shall not take advantage of or act without fair warning upon slips, irregularities or mistakes on the part of another lawyer not going to the merits or involving a sacrifice or prejudice

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of the rights of the client. In addition the lawyer shall not impose upon another lawyer impossible, impractical or manifestly unfair conditions of trust including those with respect to time restraints and the payment of penalty interest .

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