Brief on Motion to adduce new evidence. The Court of Appeal of N.B. File Number 82/10/CA ANDRE MURRAY v. BETTY ROSE DANIELSKI

7/30/2019 Brief on Motion to adduce new evidence. The Court of Appeal of N.B. File Number 82/10/CA ANDRE MURRAY v. B

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Court of Appeal File Number: 82 10 - CA

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

IN THE COURT OF APPEAL OF NEW BRUNSWICK

BETWEEN: ANDRE MURRAY

APPELLANT (Plaintiff)-and-

BETTY ROSE DANIELSKI

RESPONDENT (Defendant)

Appellants Brief

for Motion to Adduce Further EvidenceFiled by APPELLANT (Plaintiff)

ANDRE MURRAY

Andr Murray

APPELLANT

(Plaintiff)

31 Marshall Street,

Fredericton,New Brunswick,

E3A 4J8

Telephone Number:

(506) 472 - 0205E-mail address:

andremurraynow@

gmail.com

Solicitor for

RESPONDENT

(Defendant)Betty Rose Danielski

E. Thomas Christie, QCCHRISTIE LAW

OFFICE

Suite 306,

212 Queen Street,Fredericton,

New Brunswick

Canada

E3B 1A8Tel: (506) 472 2090

Fax: (506) 472 2091E-Mail:

[email protected]

Betty Rose Danielski

RESPONDENT

(Defendant)

Apt 603

166 Carlton Street,Toronto, Ont.

M5A 2K5


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Appellants Motion

To Adduce New Evidence

SubmissionPart I

INDEX

Page

Part I INDEX ______________________________________

PART II STATEMENT OF FACTS ___________________

PART III - ISSUES ___________________________________

A. The Court must determine whether the Appellant

meets the criteria necessary for the admission of further

evidence. ______________________________________

B. The Court must determine whether under Rule

62.24(1) and 62.24(1) (c) of theRules of Courtthat the

Respondent pay of costs of the within Motion and the

costs of the Appeal forthwith for non-compliance with

Rule 62.20 Filing and Service of Respondents

Submission_________________________________________

C. Costs of the within Motion ______________________

PART IV ORDERS SOUGHT ________________________

SCHEDULE A - LIST OF AUTHORITIES ___________

SCHEDULE B - TEXT OF RELEVANT PROVISIONS

OF STATUTES OR REGULATIONS__

i

1

3

3

22

45

45

47

49


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PART II STATEMENT OF FACTS

1. The Appellant respectfully requests an Order from the Honorable Courtof Appeal permitting the Appellant to adduce fresh evidence which the

Appellant contends will be a deciding factor in the determination of the

Court of Appeal, further, whether to allow the Appeal. May this please

the Honorable Court of Appeal, the here within subject fresh evidence

is currently abundantly referenced and quoted in the Appellants

Submission. Note: the Appellant believes, absence of this fresh

evidence would mean that the Honorable Court would be lacking

fundamental evidence in considering facts before the Court.

2. The Appellant as Plaintiff before the Learned Trial Judge hearing the

Plaintiffs Motion for Orders granting a Continuance of the subject

Mechanics Lien Action was unable to bring, to the attention of the

Honorable Court the fact that this document ofevidentiary value exists,

Moreover, the relevant substantive material of the same document, was

not permitted on the Court Record at the hearing because the Court did

not allow the Appellant to fully address the issues, before the Court,

nor had the Learned Trial Judge allowed for a long enough recess, (in

this case fifteen minutes) that the Plaintiff may acquire and properly

file said documents in response to the learned Trial Judge surprising

direction.

3. Consequentially following dilatory and other demonstrably undesirablebehavior of the Thomas Christie Solicitor for Respondent, the

Appellant thought is appropriate to request of this Honorable Court,

under Rule 62.24(1) and 62.24(1) (c) of theRules of Courtfor an order


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for payment of costs of the within Motion and the costs of the Appeal

forthwith for 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. With great deal of resistance the Solicitor finally agreed to Serve

the subject documents according to Rules of Court except this Court

Document Service was five days late according to Rules of Court.

PART III - ISSUES

A. The Court of Appeal must determine whether the Appellant meets the

criteria necessary for the admission of further evidence.

B. The Court of Appeal must determine whether under Rule 62.24(1) and

62.24(1) (c) of theRules of Courtthat the Respondent pay of costs of

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

compliance 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.

C. The Court of Appeal may determine (in light of circumstances) that the

Awarding of Costs against the Respondent is appropriate.

A.Admission of further evidence

4. This fresh evidence being requested to be heard by the Court of

Appeal is Affidavit evidence previously presented to the presiding


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Appellant Justice on the hearing August 10, 2010, of a Motion for

Leave to Appeal furthermore, contains as an exhibit, a copy of a

contractual investment instrument document, the BIDDING PAPERS

AND TERMS OF SALE, as is referred to in the Appellants

Submissions before this Honorable Court and may be pivotal to the

Appeal being allowed,

5. The 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 tohave been made, and may make such further or other orderas the case may require.Further Evidence

(2) The Court of Appeal or a judge thereof may receiveevidence(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.

6. Since the Appellant would always act with reasonable diligence and

promptness in representing the Appellants case, before the Honorable

Court of Queens Bench, Trial Division, moreover, in light of the fact

that the Appellant was not permitted to argue or represent the Plaintiffs

case, as the Learned Trial Judge dominated the entire Court proceeding,

consequently, the pertinent evidence required to satisfy the

discretionary position, taken by the Learned Trial Judge, first of all

could not reasonably have been anticipated by the Appellant; as the


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matter scheduled to be heard before the Court was a Motion for a

Continuance of the Mechanics Lien Action..

7. Should the Appellant be permitted to adduce evidence, it, would likely

have an important influence on the result of the case, and possibly

influence the decision of the Court of Appeal as to should the Appeal

be allowed.

8. The within request of adduced evidence, shall include a document (a

investment instrument) signed by a Solicitor acting for the vendor

Royal Bank of Canada and a Solicitor acting as Agent for the

Purchaser, 501376 N.B. Ltd, a body corporate, specifically:

BIDDING PAPERS AND TERMS OF SALE essentially nothing

more than an Agreement to Purchase Dated: July 16, 2009. Moreover,

the signatories to the here within above mentioned BIDDING

PAPERS AND TERMS OF SALE, are the same here within

referenced Solicitors, whom are the sources of the hearsayinformation presented to the Honorable Court, upon which the

presiding Learned Trial Judge did rely upon, furthermore, did place

onto the Court Record as evidence. The Appellants position on this

matter points to the blatantly evident conflicts of interest.

9. The Appellant requests, that, in the interests of justice, this fresh

evidence be admitted, Appellant Andre Murray asserts that the

Appellant was not deficient in the rule of due diligence, because

Appellant Andre Murray was not given a fair opportunity by the

Learned Trial Judge to present all relevant information and arguments


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to the Court Furthermore, Appellant Andre Murray could not

reasonable have anticipated the learned Trial Judge.

10.In Ferris v. The City of Fredericton, 2010 NBCA 55 (CanLII) Justice

RICHARD J.A. listed the criteria for the reception of new evidence on

appeal at paragraph 16 as follows:

[16] The criteria for the reception of new evidenceon appeal were conveniently enumerated in R. v. Palmer, 1979CanLII 8 (S.C.C.), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126

(QL):

(1) The evidence should generallynot be admitted if, by duediligence, it could have beenadduced at trial provided that thisgeneral principle will not beapplied as strictly in a criminalcase as in civil cases: ...

(2) The evidence must be relevant in

the sense that it bears upon adecisive or potentially decisiveissue in the trial.

(3) The evidence must be credible inthe sense that it is reasonablycapable of belief, and

(4) It must be such that if believed itcould reasonably, when takenwith the other evidence adduced

at trial, be expected to haveaffected the result.

11.Furthermore, in Ryan v. Law Society of New Brunswick, 2000 CanLII

17232 (NB C.A.)Justice Robichaud, JJ.A. addressed the criteria upon


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which the Court should permit further evidence;

(please see under Rule 62.21(2), beginning at page 8 to page 13), as

follows:

13. In New Brunswick the issue of when this Court shouldpermit further evidence under Rule 62.21(2) was definitivelydealt with in Workmen's Compensation Board (N.B.) andAlyes v McCarthy and Eastern Paving Ltd (1982), 42 N.B.R.(2d) 160 (N.B.C.A.) at paragraphs 4, 5 and 6:

4. The requirements which must be met to justify thereception of fresh evidence were considered by this court

in Kenny v Ross E. Judge Transport Ltd et al (1970), 2N.B.R. (2d) 430, and depend upon whether specialgrounds must be shown. If special

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grounds are required to be established, three . conditionsmust be fulfilled:

1) It must be shown the evidence could not havebeen obtained with reasonable diligence for use at

the trial;2) The evidence must be such that, if given, it would

probably have an important influence on the resultof the case, although it need not be decisive; and

3) The evidence must be such as is presumably tobe believed, or in other words, it must beapparently credible, although it need not beincontrovertible.

5. If special grounds are not required to beestablished, a substantial case must be made out to

justify this court in exercising its discretion in favour of thereception of fresh evidence.

6. It is clear, we think, that a decision on anapplication such as this present one requires a proper


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balance to be struck between the need to have availablefor adjudication complete and accurate facts, on the one

hand, and the requirement that a judgment on a questionof fact which was justified by the evidence adduced at atrial should not lightly be disturbed, on the other.

See also: Marette v. Sainsbury [1928],1 D.L.R. 273 (S.C.C.);Boss v. Leger, Thibodeau and Assumption reflex, (1987),82 N.B.R. (2d) 80 (N.B.C.A.)

14. Rule 62.21 gives the Court very broad discretionarypowers. But as has been established by the authorities there is arestrictive three-part test which the Appellant must meet. As well

this Court should not relax the criteria so as to facilitate anunsuccessful litigant's desire to retry a case. The Court alsofaces the difficulty of not

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being privy to the actual expert medical opinion which theAppellant seeks to have admitted. The Court only has a generalunderstanding of this potential evidence, which is gleaned fromthe Notice of Motion and the affidavit of Mr. Ryan. Based uponthe materials before this Court, we are satisfied that the evidenceof Dr. Cook would probably have an important influence on theissue of sanction, and that it is apparently credible. If medicalopinion indicates that Mr. Ryan did what he did because ofmental illness and that the illness is curable or controllable thisevidence may have an important impact on the sanction. As well,based upon the curriculum vitae of Dr. Cook, in all likelihood theevidence will be credible.

15. Therefore the important and critical area of this motion isthat of the "due diligence" of Mr. Ryan in bringing this evidenceforward.

16. Counsel for the Law Society is quite persuasive in hisargument that at the time of filing his answer to the complaints,Mr. Ryan stated that he was "in the midst of a severe emotionalcrises and depression". So how can he now call for furtherevidence as to his emotional and depressive state of mind?


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Counsel for the Law Society adds that Mr. Ryan should haveobtained this evidence during the adjournment and that his

failure to do so establishes Mr. Ryan's lack of due diligence.

17. Black's Law Dictionary (5th edition) defines "duediligence" as follows:

due diligence. Such a measure of prudence, activity, or assiduity, as isproperly to be expected from, and ordinarily exercised by, a reasonableand

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prudent man under the particular circumstances; not measured by anyabsolute standard, but depending on the relative facts of the specialcase.

18. A review of the law would indicate that the rule of duediligence will be strongly adhered to in civil matters but less so incriminal cases. In civil matters there must be finality. If courtswere to permit new evidence with alacrity, litigation would beprolonged and there would never be the assurance that a matteris finally concluded. In their text The Conduct of an Appeal, Mr.Justice John Sopinka and Mark A. Gelowitz, Butterworths, 1993,

express the following view at page 59:

In criminal matters, it is at least arguable that the policy that there mustbe finality to litigation is of less importance than the policy that theinnocent ought not to be convicted

19. This view was confirmed in the recent decision of R. vWarsing 1998 CanLII 775 (S.C.C.), [1998] 3 S.C.R. 579 assummarized in the headnote:

Per Cory, lacobucci, Major and Binnie JJ.: The Court of

Appeal's decision to admit the fresh evidence, after balancingthe relevant factors, was correct and should be upheld. Whilethe fresh evidence failed the due diligence test in Palmer, it isdesirable that due diligence remain only one factor and itsabsence, particularly in criminal cases, should be assessed in


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light of other circumstances. If the evidence is compelling andthe failure to meet the test should yield to permit its admission.

Here, the fresh evidence sought to be introduced was relevant,credible and, if believed, could affect the verdict. The accused 'sfailure to meet the due diligence requirement is serious and inmany circumstances would be fatal; however, in the

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circumstances of this case, that failure was overborne bythe interests of justice.

20. In this case Mr. Ryan appeals the sanction imposed by the

Discipline Committee of the Law Society. While it does notconstitute a criminal sanction as such, it remains one that willhave significant impact on Mr. Ryan's life and his ability to earn alivelihood. In the spectrum between civil matters and criminalmatters the Court is of the view that a sanction affectinglivelihood falls somewhere in between, and somewhat closer to acriminal than a civil sanction. Consequently, following R. vWarsing supra, due diligence is only one of the factors andshould bear no greater weight than the others.

21. On the actual issue of whether Mr. Ryan exercised duediligence it can be argued that in fact he was diligent. Counselfor the Law Society suggested that the only way Mr. Ryan couldshow due diligence is if he submitted himself to something akinto an independent medical examination or psychiatric evaluation.The transcript of the evidence at page 256 reveals that Mr.Ryan's counsel did consult with Mr. Ryan's physicians during theadjournment. But he concluded: "... because there was notreatment of the condition during the period of time that we'redealing with, there was very little that they could add to this...".We are of the view that the actions of Mr. Ryan's counsel werereasonable in the circumstances and indicate, given the facts ashe had them at the time, a degree of due diligence. As well,given Mr. Ryan's possible mental condition, his due diligenceshould not be measured against a reasonable and prudentperson but as defined in Black's (supra): "... not measured by


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any absolute standard but depending on the relative facts of thespecial case".

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22. Also, as stated by Bastarache, J.A. (as he then was) inTepper v Valley Equipment Ltd [1997] N.B.J. No. 78(N.B.C.A.)at paragraph 19, "the admission of fresh evidence bythe trial judge must be exercised by balancing the public interestof finality of litigation and the realities of the case before her...".The Court is therefore of the view that the Appellant has satisfiedthe three-part test of admissibility and the fresh evidence shouldbe received. The realities of this case warrant the hearing of this

proposed further evidence.

12.The fresh evidence requested to be included, could not have been

obtained with reasonable diligence for use at the June 10, 2010,

Hearing of a Motion for Continuance, because the Appellant was not

allowed to fully speak to the matter before the Learned Trail Judge. As

referenced above inRyan v. Law Society of New Brunswick, 2000,

supra, Black's Law Dictionary (5th edition) defines "due diligence" as

follows:

due diligence. Such a measure of prudence, activity, orassiduity, as is properly to be expected from, and ordinarilyexercised by, a reasonable and prudent man under the particularcircumstances; not measured by any absolute standard, butdepending on the relative facts of the special case.

13.The Appellant (Plaintiff in that matter) had a right to be heard on the

issues before the learned Trial Judge, at the June 10, 2010, Motion for a

Continuance, furthermore, procedural fairness required the Motion

Judge to hear the Appellant. It is only after hearing the Appellants

arguments on the issues before the Court and any arguments made in


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reply by the other side, that a Motion Judge would, then, have been

able to judicially exercise the discretionary powers conferred by section

52.1 (1) (b) of the Mechanics' Lien Act, determining the Motion for a

Continuance of the action.

14.In Munn v. Rust, 2006 NBCA 87 (CanLII) Justice LARLEE, J.A

confirmed that, procedural fairness requires a Motion Judge must hear

both sides of any argument offered;

(please see paragraphs 13 through to and including paragraph 15) as

follows:

[13] At the hearing of Mr. Rusts motion, the issueof Mr. Munns own motion, including his request to cross-examine the deponents of the affidavits filed in support of Mr.Rusts motion, was summarily addressed in the followingexchange between the motion judge and counsel for Mr. Munn:

THE COURT: [] I am not going to

hear your motion, the, your countermotion to Mr. Costellos, and I am notordering that these people be cross-examined on their affidavit, certainly notMr. Rust. Well, nobody, and well

MR. MCALLISTER: May I have reasons

THE COURT: No. Im going to listen toMr. Costello and you on the motion that

is before me. However, one of thereasons is that if every time there was amotion before the Court, the other partythen filed late another motion tocounteract the first motion, there would


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be nothing but chaos here. You hadplenty of time to file your motion. You

had plenty of time and you didnt. Its outof time; Im not hearing it. The end. Sitdown. Sit down. Mr. Costello.

[14] I am of the view that, in refusing to considerMr. Munns application to cross-examine the deponents of theaffidavits, the motion judge failed to exercise her discretionjudicially. Mr. Munn had a right to be heard on that issue, andprocedural fairness required the motion judge to hear him. It is

only after hearing Mr. Munns arguments in support of hisrequest to cross-examine and any arguments made in reply, thatthe motion judge would have been able to judicially exercise thediscretionary powers conferred by Rule 39.03.

[15] In my view, the appeals should be allowed onthe common ground raised in both Notices of Appeal that allegethat the motion judge erred in the exercise of the discretionconferred by Rule 39.03. It follows that the judges orderstriking out those portions of the Plaintiffs Statement of Claimwhich assert a claim against the Defendant, Edward B. Rust

Jr., must be set aside. My disposition of this appeal requiresthat the matter be returned to the Court of Queens Bench forconsideration of the issues raised by Mr. Munns request tocross-examine and a fresh determination of all the issues raisedin the Notices of Motion.

15.The here within above referenced Munn v. Rust, 2006 NBCA 87

(CanLII) sounds similar to the verbal exchange found Recorded and

provided by Official Certified Transcript, which occurred between the

Appellant Andre Murray and the Learned Trial Judge, on June 10, 2010

Motion for a Continuance further, the same matter before this

Honorable Court.


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16.The fresh evidence when adduced, will have an important influence on

the result of this Appeal, seeing that the Appellant believes and relies

on real evidence, to assert the Appellants claims, against the incredible

inclusion of the particular hearsay information. The inclusion of that

particular hearsay information was in fact requested by and

subsequentially entered onto the Court Record by the Learned Trial

Judge in the Court hearing and procedure of June 10, 2010. The

following impugned action and position that hearsay information can

be admissible under these particular circumstances, appears to have the

support of the Solicitor for the Respondent (in that matter Defendant).

The subject hearsay information was sourced, by the Solicitor for the

Respondent, (during a Court declared Recess of fifteen minutes) from

the two cosignatories to the Bidding Papers and Terms of Sale

investment instrument document which said investment is directly

related to the same property identified in the Appellants Mechanic Lien

Action.

17.May this please the Honorable Court the fresh evidence intended to be

adduced, includes a Investment Instrument BIDDING PAPERS

AND TERMS OF SALE document. This document was signed by a

Solicitor acting for a Vendor the Royal Bank of Canada and a Solicitor

acting for a Purchaser, 501376 N.B. Ltd, a body corporate. Both

signatories to the here within BIDDING PAPERS AND TERMS OF

SALE which is essentially an Agreement to Purchase Dated: July 16,

2009, moreover, the here within mentioned signing Solicitor agents,

are the same parties upon which the solicitor for the Respondent


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obtained hearsay answers to questions intended to determine a

question at law.

18.The Appellant requests that in the interests of justice this fresh evidence

be adduced. Appellant Andre Murray was not deficient in the rule of

due diligence, as defined here within and above in Blacks Law

Dictionary, because, Appellant Andre Murray was not given a fair

opportunity by the Learned Trial Judge to present all relevant

information further, to offer argument to the Honorable Court on the

Record, this right to be heard is due to the Appellant Andre Murray, in

a fair proceeding, according to the principle of natural justice and

procedural fairness.

19.As referenced and quoted above in Munn v. Rust, 2006 NBCA, supra,

where an Appeal was allowed on the ground that the motion Judge

erred in the exercise of the discretion, and the words The end were

prematurely verbalized by the presiding Motion Judge , the Appellant(in this matter) Andre Murray also heard the words The end

repeated, as Appellant Andre Murray attempted to address the

numerous issues raised by the motion Judge, without success, and

despite having a right to be heard on that issue. Procedural fairness

required the motion Judge to hear the Appellant (Plaintiff in that

matter).

20.R. v. La, [1997] 2 S.C.R. 680, Justice LHeureux-Dub J. examines

disclosure, as a process, which is a necessary and important feature of

the Canadian legal landscape.


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(Please see provided below at paragraph 36 through to and including

paragraph 40), as follows:

36 In a nutshell, my position is that the duty todisclose is exactly that: an obligation resting upon the Crown.It does not constitute, and in my view, has never constituted aseparate and distinct right operating on its own as a principle offundamental justice. On the contrary, the disclosure obligationis necessary because generally the failure to disclose impedesthe ability of the accused to make full answer and defence. R.v. Stinchcombe, 1991 CanLII 45 (S.C.C.), [1991] 3 S.C.R. 326(Stinchcombe (No. 1)), per Sopinka J., at p. 336. To establish

the very process of disclosure as a distinct constitutional rightwould be, in my view, a substantial departure from thejurisprudence in this area and would needlessly complicate thisarea of law.

37 While this case is primarily concerned with lostevidence which was once in the possession of the Crown, Ibelieve a proper analysis of this issue requires an examinationof the relationship of the disclosure duty to s. 7 of the Charter.

38 At the outset, however, I would stress that

disclosure, as a process, is a necessary and important feature ofthe Canadian legal landscape. The decision of this Court inStinchcombe (No. 1) was a desirable evolution in the law, andone which, for the most part, encouraged a fairer system foraccused persons. It also inspired a spirit of openness in the law,which I believe has played a large part in advancing the searchfor the truth in criminal trials.

39 Nevertheless, I have never thought of Stinchcombe(No. 1) as having effected a radical departure from the directionwhich was being taken in the common law, despite a number of

judgments and academic opinions which suggest a contraryopinion. Rather, I agree with Professor Alan N. Young,Adversarial Justice and the Charter of Rights: Stunting theGrowth of the Living Tree (1997), 39 Crim. L.Q. 406, at p.419, that Stinchcombe did not create a new right with respect


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to disclosure as the common law has always considered fulldisclosure to be an integral part of the process. See also R. v.

C. (M.H.), 1991 CanLII 94 (S.C.C.), [1991] 1 S.C.R. 763.

40 In my view, what Stinchcombe (No. 1) trulyrecognizes is that disclosure is essential to enable the accused toexercise properly his right to make full answer and defence,itself a principle of fundamental justice under s. 7.Additionally, disclosure helps ensure that the accused will havea fair trial, as the possibility of an ambush by the Crown isremoved: see for example, R. v. Cook, 1997 CanLII 392(S.C.C.), [1997] 1 S.C.R. 1113. There are a number of otherpractical advantages to full disclosure, not the least of which is

the encouragement of early resolution of criminal charges:Stinchcombe (No. 1), at p. 334. See also the Report of theAttorney Generals Advisory Committee on Charge Screening,Disclosure, and Resolution Discussions (1993), under the Chairof G. Arthur Martin. Still, for constitutional purposes, it iscrucial to recall that disclosure is no more than a process, albeitan important one, which exists to further the rights of anaccused as set out above.

21.The Honorable Law Courts of Canada, have long repeated, that it is

improper to permit trial by ambush. Though the matter referred to

above in R. v. La, [1997], supra, was a criminal matter, the principals

however, may apply to the matter before this Court. The fundamental

reason the BIDDING PAPERS AND TERMS OF SALE document,

was not included, in the submitted materials, before the learned trial

Judge, by the Appellant (Plaintiff in that matter) is simply explained by

the fact that the Motion to be Heard that day had been filled (by the

Plaintiff) with Court of Queens Bench, as a Motion for Ordersallowing a Continuance of a Mechanics Lien Act Action, furthermore,

the Appellant was preparing for the Motion for a Continuance of the

Mechanics Lien Action, there existed no foreseeable criteria to include


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the BIDDING PAPERS AND TERMS OF SALE document,

amongst the Court filled materials., BIDDING PAPERS AND

TERMS OF SALE document seemed to have no bearing on, whether

or not the Court should grant a Order for a Continuance.

22.It is noteworthy, that Max Richardson, whom was accompanying

Thomas Christie Solicitor for the Respondent, found it appropriate to

verbalize out loud from the back of the Court Room in this regard,

MR. RICHARDSON states its the best the whole of the affidavit. I

didnt realize that the exhibits were in substance in

(may it please the Honorable Court please see: Book of Essential

References: Transcript page 4. line 12)

23.The Appellant (may this please the Court) was extremely surprised by

the direction the Learned Trial Judge was taking including the lack of

concern for procedural fairness. The Appellant believes the here within

Hearing of the June 10, 2010, the Motion for Orders allowing aContinuance of the Mechanics Lien Action, assumed the appearance

the term the Appellant is familiar with called trial by ambush,

referred to above in R. v. La, [1997], supra, seems appropriate. Further,

referred to above in R. v. La, [1997], supra the common law has

always considered full disclosure to be an integral part of the process,

the Appellant prepared for the Motion, by including the relevant

material that appeared to be necessary to persuade the Learned Trail

Judge, first, that the requested Continuance was necessary, second, that

the Appellant was not negligent in moving the action forward, thirdly,

outside factors where impeding, the expedient resolution of the mater


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and lastly, it would be in the interest of Justice to grant the Requested

Continuance of the Mechanics Lien Action, so that it may be heard in

its merits. The Appellant did not know before hand that the Appellant

would have to Counter the surprise position, unilaterally taken by the

Learned Trial Judge, which was not permitting arguement by either

party to the action. This is evidentially to the prejudice of the

Appellant. May it please this Honorable Court: full disclosure is

essential to enable the Appellant, to exercise properly his right, to make

full answer and defence, which is itself a principle of fundamental

justice

24.The requirements, which must be met to justify adducing fresh

evidence, as considered by this Court, further; those prerequisites may

depend upon whether special grounds must be shown. If special

grounds are required to be established, three conditions must be

fulfilled:

the first condition, upon which, special grounds may be established, is

it must be shown the evidence which is now required could not have

been obtained with reasonable diligence for use at the trial;

the reason the evidence could not have been obtained with reasonable

diligence, to be used at the June 10, 2010, hearing of a Motion for

Orders granting a Continuance of the Mechanics Lien Action pursuant

to the Section 52.1 (1) (b) of the Mechanics Lien Act, is because the

learned Trial Judge did not allow for a long enough recess (15 minutes)

that the Appellant may obtain the documents and return to the Courts.

However, the learned Trial Judge having announced a 15 minute recess


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did not resume Court for one hour. The second portion of the Court

hearing lasted entirely eleven minutes during which the 11 minute

Court proceedings where entirely dominated by the learned Trial Judge

establishing the thesis followed by the antithesis and finally arriving at

the predetermined synthesis as had been decided by the Trial Judge

prior to the recess. Pleading or argument from the Appellant was not

permitted except at the final conclusion of the eleven minute hearing, at

which time the learned Trial Judge interjected verbalizing to the effect,

the end and abruptly left the Court Room repeating the end - the

end thereby denying and effectively preventing the Plaintiff in that

matter (Appellant in this matter) from being able to speak on the record

to the issues being raised or to the fact that the document: BIDDING

PAPERS AND TERMS OF SALE existed; since the Plaintiff was not

provided the opportunity to elaborate on the implications of the

BIDDING PAPERS AND TERMS OF SALE contractual document

(subject of the request to adduce fresh evidence) the Learned Trail

Judge misapprehended the conflict of interest and the matter ofcredibility of the source of the Hearsay information brought before the

learned Trial Judge.

The second condition, upon which, special grounds may be

established, is that the evidence must be such, that, if given, it would

probably have an important influence on the result of the case, although

it need not be decisive;

Appellant Andre Murray is confident that adducing fresh evidence as

before the Honorable Court of Appeal will likely be important and


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influential in assisting the Honorable Court of Appeal in its

deliberations and likely indispensable to its decision

The third condition, upon which, special grounds may be established

,is the evidence must be such as is presumably to be believed, or in

other words, it must be apparently credible, although it need not be

incontrovertible;

Appellant Andre Murray is of the knowledge that the anticipated fresh

evidence be credible; Appellant Andre Murray contends that the subject

evidence is Affidavit evidence which includes, a exhibit which is a

copy of a document signed by a Solicitor for the Vendor Royal Bank

of Canada and the Solicitor acting as Purchasing Agent for the

intended Purchaser, 501376 N.B. Ltd, a body corporate. The

intended evidence is an contractual investment instrument BIDDING

PAPERS AND TERMS OF SALE and Agreement to Purchase

Dated: July 16, 2009. Furthermore, the Appellant believes both

signatories to the here within above mentioned purchase and saledocument, evidently have palatable conflicts of interest, moreover, the

same subject signatories are the very same Solicitors whom where

sought by Solicitor for the Respondent (Defendant in that matter) by

instruction of the Learned Trial Judge to obtain pivotal hearsay

information, which was subsequently presented to the Court of Queens

Bench Trail Division hearing in progress and was ultimately relied

upon by the learned Trial Judge, to render a Decision June 10, 2010,

hearing of a Motion for Orders granting a Continuance of the

Mechanics Lien Action pursuant to the Section 52.1 (1) (b) of the

Mechanics Lien Act.


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25. Should the Honorable Court of Appeal in this matter determine that

special grounds are not required to be established, further, that the

Orders: adducing fresh evidence as requested by the Appellant be

granted, then the Appellant Andre Murray believes that the following,

contained here within, is a sufficiently established case to justify to this

Court of Appeal, the exercising of its discretion in favor of the reception

of fresh evidence. Here, the fresh evidence sought to be introduced is

relevant, credible and would likely affect the verdict.

May this please the Honorable Court of Appeal: Rule 62.21 givesthe Court very broad discretionary powers

62.21(2) The Court of Appeal may receive evidence:(c)on special grounds, upon any question of fact.

The Appellant Andre Murray understands that a decision on an

application such as this requires a proper balance to be struck between

the need to have available for adjudication complete and accurate facts.

26. Appellant Andre Murray requests that in the interests of justice this fresh

evidence be admitted, Appellant Andre Murray was not deficient in the

rule of due diligence, because Appellant Andre Murray was not given a

fair opportunity by the Learned Trial Judge to respond with relevant

information and counter arguments to those criteria being established (at

such a late date) nemo judex in causa sua debet esse. Appellant Andre

Murray was denied counter claim and or rebuttal opportunity, due in a

fair proceeding according to the principle of natural justice.

27. The Learned Trial Judge decided to dismiss the Motion before the Court,

and in effect did not grant the requested Order for a Continuance


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appears to have been based on implications from the source document,

which the Appellant is now requesting be adduced as fresh evidence.

Note: Learned Trial Judged erred in law by misapprehending that the

Sale which the subject BIDDING PAPERS AND TERMS OF SALE

speak to, actually had closed, when in fact the sale has not yet closed,

furthermore, as of the dating of this document the subject property

remains in escrow.

28. Appellant Andre Murray believes that the Court of Queens Bench Trail

Division and the Learned Trial Judge hearing the motion are bound,

above all other considerations, to do justice in each particular case.

May it please this Honorable Court of Appeal the Appellant believes that

to do justice in a particular case requires a balancing of potential

prejudice to both parties resulting from the decision to grant or refuse the

requested Orders. A palatable prejudice will result against Appellant

Andre Murray should his requested Order to present relative fresh

evidence not be granted. No prejudice would be visited upon theRespondent by having the evidence presented to this Honorable Court for

consideration on the Merits.

29. The Affidavit and exhibits which the Appellant requests this Honorable

Court to receive as fresh evidence is located in the Record on Motion

TAB 4, page 20.


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B.

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

Appeal forthwith for non-compliance with Rule 62.20

30. The Appellant further requests 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 subsequently experienced unnecessary expense and

great deal of stress attempting to receive proper service of Respondents

Submission according to Rules of Court.The Respondent not only failed timely service of Respondents Submission,

nevertheless, when the Appellant pursued the Court of Appeal enquiring after

the Respondents Submission on the last day of the allowable Filing date

according to Rules of Court, the Respondent had failed to File in that

early afternoon. The Solicitor for Respondent reveals, finally, that he is not

interested in prescribing to strict adherence to service according to the Rules

of Court, instead the Solicitor is interested in sharing stories about recent

precedence regarding changes occurring and the acceptance of electronic

service. However, a copy of the Respondents Submission is required service

upon the Appellant according to the Rules of Court, in this case requiring the

subject Document Service no later than the 20th of October, 2010, this did not

occur. The Solicitor for the respondent, in this matter, has a demonstrable

history of non compliance with the Rules of Court 20.02(2), 18.02(1)(a),

18.03(1), furthermore, the Appellant relies upon the Respondent to adhere

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


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

reproduced below:

62.24 Failure to Comply with Rule

(1) Where a party to an appeal or his solicitor is atfault in failing to comply with this rule, the Court of Appealon motion of any other party to the appeal or on theapplication of the Registrar, may(a) if the party failing to comply is the appellant,(i) dismiss the appeal with costs, including thecosts of the motion, or(ii) direct the appellant to perfect the appeal within

a specified time,(b) set the appeal down for hearing, or(c) make such other order as may be just including anorder for payment of costs forthwith.

62.20 Filing and Service of Respondents Submission

Not later than the 20th day of the month preceding themonth in which an appeal is eligible to be heard, eachrespondentshall(a) subject to Rule 62.20.2, file the original and 4

copies of the Respondents Submission with the Registrar,and(b) serve a copy of the Respondents Submissionupon each of the parties to the appeal.

32.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


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laypersons lawfully representing themselves or others in a matter as the

lawyer is required to observe toward other lawyers.

33.The position of the Solicitor for the Respondent, regarding not granting

consent to a Continuance, (when requested by the Appellant) which

would have advanced the just resolution of the dispute, without

prejudice or unfairness to the parties and consequently be in accordance

with the Law Society of New Brunswick Code of Professional

Conduct, has caused unnecessary delay and expense.

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

Professional Conduct CODE OF PROFESSIONAL CONDUCT

CHAPTER FIFTEEN is provided bellow:

COLLEAGUESCHAPTER 15

RULE

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

Good faith, (professional) courtesy, collegiality2. Without derogating from the broad application intended ofthe elements of the Rule in this chapter the following directivesshall be observed as minimums by the lawyer in practising goodfaith, courtesy and collegiality as envisaged by the Rule:

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

(v) The lawyer shall be punctual in fulfilling commitmentsmade to another lawyer and shall respond on a timely basis to


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all communications from another lawyer that contemplate areply.

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

Avoidance of sharp practice4. The lawyer shall not engage in sharp practice in the practiceof law . Without limiting this proscription the lawyer shall nottake advantage of or act without fair warning upon slips,irregularities or mistakes on the part of another lawyer notgoing to the merits or involving a sacrifice or prejudice of therights of the client. In addition the lawyer shall not imposeupon another lawyer impossible, impractical or manifestlyunfair conditions of trust including those with respect to timerestraints and the payment of penalty interest .

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

Brunswick Code of Professional Conduct, CHAPTER 15 (2)(iii), 15 (2)

((v), 15 (2) (vii) and 15 (4) compels the Respondents Solicitor to not

take advantage of slips, irregularities or mistakes on the part of the

Defendant, not going to themerits, which does notinvolve a prejudice

of the rights of the Solicitors client. Furthermore, the Solicitor for

the Respondent should have consented to the reasonable requests for a

Continuance.

Good faith, (professional) courtesy, collegiality

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

materially by agreeing to the accommodation.

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

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


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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 documents may be retrieved is abundantly reasonable.

The position of the Respondent would not have been materially

prejudiced by agreeing to the requested extension of time.

37.In, Blanger v. Roussel, 2006 NBCA 2 (CanLII) Chief Justice DrapeauC.J.N.B. ruling on an application for Orders under Rule 62.24(1), at

paragraph 6 stated as follows:

[6] When ruling on an application under Rule 62.24(1),the Court must take into account the interests of every party.The Court may show leniency, particularly where theadministration of justice will not be brought into disreputeshould it adopt this approach. While it is true that the Courtmust shape its decision in a way that secures the just, least

expensive and most expeditious determination of the litigationon its merits, it should always bear in mind that another courthas considered the issues and has outlined a solution that isdesigned to be final and in keeping with this ideal. In this case,the interests of justice would be ill served by an order that isless drastic than the dismissal of the appeal.

38.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.

39. 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


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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 Appellant does not respond to

communications from the Appellant, the result is unnecessary delay, as

a consequence, this behavior causes the Appellant to be in a position of

uncertainty and causes unnecessary stress, and in a typical example,

there is much time is spent attempting to understand why there was no

response, the Appellant naturally questions his own possible errors and

as a consequence subsequently finds himself researching the Rules of

Court studying for his possible errors when in fact it was not necessary.

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

Respondents Solicitor to receive documents that the Rule of Court

compels the Respondents Solicitor to serve upon the Appellant

according to the Rules of Court.

41. Furthermore, it is in the interest of the Solicitor for the Respondent toreply to inquiries because the Law Society of New Brunswick Code of

Professional Conduct, compels them to.

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

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

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

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


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Appellant files the documents required in accordance with theRules of Court.

43. 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.

44. 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 ParSyndication Group Inc., for an order dismissing the appealpursuant to Rule 62.23(1)(c) of the Rules of Court on theground that the appellant has unduly delayed preparation andperfection 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 faultin failing to comply with this rule, the Court of Appealon motion of any other party to the appeal or on theapplication of the Registrar, may

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

(i) dismiss the appeal with costs, including the costs

of the motion, or

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


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(b) set the appeal down for hearing, or

(c) make such other order as may be just including anorder for payment of costs forthwith.

Dismissal of an appeal for failure to comply with Rule 62.15is only appropriate "where it is shown that the interests ofjustice would be ill-served by a less drastic measure." See NewBrunswick (Minister of 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 byan order under Rule 62.24(1)(a)(ii) directing the appellant toperfect 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. Theunique circumstances of the present case warrant an order ofcosts against the moving parties in favour of the self-represented appellant. We fix those costs at $750. There will beno order of costs in favor of Par Syndication Group Inc.

45. 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 against the moving parties.

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

of non compliance with, are as follows:


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27.03 Service of PleadingsWho is to be Served

(1) Every pleading shall be served(a) initially on every opposite party and on everyother party who has filed and served a pleading or a Noticeof Intent to Defend in the action or in a counterclaim,cross-claim or third or subsequent party claim inthe action, and(b) subsequently on every other party forthwith afterhe files and serves a pleading or a Notice of Intent toDefend in the action or in a counterclaim, cross-claimor third or subsequent party claim in the action.

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

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

20.02 Notice of Intent to Defend

(1) Any defendant served with a Statement of Claimwho intends to defend the action may, within the time limitedfor filing and serving his Statement of Defence, fileand serve a Notice of Intent to Defend (Form 20A).(2) Any defendant who files and serves a Notice of


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Intent to Defend within the time limited for so doing, shallhave an additional 10 days within which to file and servehis Statement of Defence, and he shall be deemed to havesubmitted to the jurisdiction of the court.

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

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

18.03 Other Ways to Effect Personal ServiceWhere available

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

Service by Prepaid Mail or Prepaid Courier

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

(d) confirmation in writing from the carrier that thedocument was delivered to the person to whom thedocument was sent.(5) Service by prepaid mail or prepaid courier shallbe deemed to have been effected on the date the sender receives


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a receipt or confirmation under paragraph (4).

47. The history of the questionable professional conduct of the Solicitor forthe Respondent (in this matter) as it relates to the Appellant is as follows:

Solicitor and Respondents questionable conduct history:

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

to Court File Number: FC 104 09, Andre 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 serious enough nature

deserving of sanction by this Honorable Court. Appellant Andre 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 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 Andre 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 Andre Murray (Plaintiff in that matter)

Betty Rose Danielski was avoiding service. 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;


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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) DatedAug 21, 2009;

49. 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 Aug21, 2009

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

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

avoiding Court Document Service. Consequently, further expense was

incurred by Plaintiff in that matter Andre Murray (Appellant in this


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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 caused subsequent attempts and revealed a

significant change in apparent attitude of Betty Rose Danielski as a

contingency Service attempt, sent UPS registered Mail, by Plaintiff now

Appellant Andre Murray to two different 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.

51. Subsequent to service of the here within above listed Court documents

served upon Defendant in that matter Betty Rose Danielski, did not

receive service of the Defendants Notice of Intent to Defend, or Demand

for Particulars, at any time. I did not receive a phone call, email, regular

post mail or registered mail regarding the here within subject. I, Plaintiff

Andre Murray, am unaware of any in attempt of personal Service upon

myself 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.

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

Danielski having retained the services of Solicitor Thomas Christie when

the Plaintiff Andre Murray (Appellant in this matter) Searched the Court


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

serving of the Plaintiff Andre Murray Motion for a Continuance of the

Mechanics Lien Action, consequentially caused by the Royal Bank of

Canadas refusal to Defendant Andre Murrays many requests to be

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

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.

53. On the 20th

day of April, 2010, Plaintiff Andre Murray served Solicitor E.Thomas Christie, for Defendant BETTY ROSE DANIELSKI , with

Court File Number: F/C/104/09 a Notice of Motion (Page 42 of the

Appeal Book) and supporting Affidavit (Page 45 of the Appeal Book) 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.

54. The affidavit (Page 45 of the Appeal Book) in support of the here within

above mentioned Motion, detailed the reasons for the delay of the

Discovery process pursuant to the Mechanics Lien Act prohibiting the

forward movement of the subject action thus far and the reasons

necessary for the requested Order for a continuance of the Mechanics

Lien Action. Communication The Plaintiff received no reply by phone,

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

communication regarding the here within subject matter from theDefendant and Respondent in this matter.


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

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

the Amended Notice of Motion (Page 58 of the Appeal Book) and

supporting Affidavit 2 (Page 61 of the Appeal Book) 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.

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

Defendant E. Thomas Christie, QC with the Plaintiffs letter (Page 106 of

the Appeal Book) 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).

57. The Plaintiff, on the 31st day of May, 2010 served Solicitor forDefendant BETTY ROSE DANIELSKI, E. Thomas Christie, QC with

the Plaintiff Andre Murrays letter (Page 100 of the Appeal Book) 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.

58. No response was received to the above mentioned three separate

facsimiles, sent the 31st day of May, 2010, by the Plaintiff furthermore,


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never received a reply by phone, email, regular post letter, registered mail

letter or other wise any form of communication know to the Plaintiff.

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

received an e-mail from Solicitor Thomas Christie.

Please see TAB 9, page 36, EXHIBIT BB of the Appellants Record on

Motion

60. The Plaintiff Andre Murray replied to the above mentioned email

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

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

detailing the issues that I was concerned with, as follows:

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

Notice: I have a problem with my neighbor, whom is for someunexplainable reason, of the habit, that he must cause me to not receive

my Canada Post Mail.Furthermore, I have documented evidence of this same neighborintercepting courier delivery of my correspondence ultimately causingit to never arrive and subsequently refusing to surrender same.

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

matters.

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

Plaintiff Andre Murray requested of the Solicitor Thomas Christie for the


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Defendant, confirmation that the recently faxed documents had been

received successfully as follows:

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

Also; Please confirm that you received my faxed documents sent05/31/2010 03:17 PM which included a correspondence Letter ofinquiry regarding Court File Number F/C/104/09 and request of yourClient Defendant Betty Rose Danielski and her cooperation by

consenting to a Continuance of the Mechanics Lien Action pursuant tosection 52.1 (1) (b) of the Mechanics Lien Act.

Also; Please confirm that you received my faxed documents sent05/31/2010 03:14 PM which included a correspondence Letterregarding Lienholders Right to Information Mechanics Lien Act,R.S.N.B. 1973, c. M_6

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

I trust you find the following agreeable.

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

to the Appellants knowledge replied to. Please see TAB 10, page 37,

EXHIBIT CC of the Appellants Record on Motion.

63. The Appellant Andre 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


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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 Andre Murray with such

matters.

64. Next, Appellant Andre 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.

65. Please see TAB 11, page 39, EXHIBIT DD of the Appellants Record

on Motion to view a copy, of the July 19, to July 22, 2010, e-mails

66. The Appellant Andre Murray, in a series of e-mails of September 2,

2010, out of courtesy attempted to bring attention to a Fax sent the sameday as follows:

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

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

Fax.


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68. Further in the same e-mail the Plaintiff Andre 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'.

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

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

finally on September 7, 2010 one of the Appellants September 2, 2010

e-mails of was replied to, but not the other email concerning the very

peculiar underlined name of Betty Rose Danielski the Respondent. The

Appellant again resent the e-mail concerning the very peculiar underlined

name of Betty Rose Danielski the Respondent. No e-mail has ever been

returned to the Appellant in this regard.

71. Please see TAB 12, page 44, EXHIBIT EE of the Appellants Record

on Motion to view a copy, of the September 2, 2010, to September 7,

2010, e-mails.

72. The Appellant was never served with any affidavit of Betty Rose

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


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was not given 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.

73. 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 desires the Appellant must include (under threat

of lack of performance) documents to his likening. Solicitor Thomas

Christie protested the absence of certain Documents. The Solicitor for the

Respondent did not stop with unpleasant email correspondence between

himself and sent to the Appellant. Nevertheless, the Solicitor continued to

purue this penchant until he was actually speaking to the Clerks at Court

of Appeal Office attempting to persuade them that Appellant Andre

Murray must now provide a supplementary Appeal Book etcetera. When

the Appellant responsibly investigated the matter further, it was foundthat 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 had been postured by the Solicitor for the Respondent.

74. The Solicitor for the Respondent did not Process Serve the Respondents

Submission upon the Appellant within the prescribed time allowable by

Rules of Court time limits, in this case October 20, 2010. The Solicitor

for the Respondent had been placed on NOTICE Mon, Jun 7, 2010, by

email, please see TAB 10, page 37, EXHIBIT CC which is quoted

below:


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In light of the following, I kindly request that all correspondence

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

75. Despite the here within above Jun 7, 2010, notice, the Appellant was not

served October 20, 2010, with the Respondents Submission. At 2:00 PM

on October 20, 2010, Appellant Andre Murray sincerely telephoned

Client Services of the Court of Appeal (several times) October 20, 2010,

enquiring after the Respondents Submission. I Andre Murray was told

that the Respondents Submission had not yet been filed.

76. October 20, 2010, Appellant Andre Murray telephoned the Office of the

Solicitor for the Respondent, several times, but was unsuccessful at

reaching the Solicitor for the Respondent.

77. On Thursday, October 21, 2010, Appellant Andre Murray again

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

but was unsuccessful at reaching the Solicitor for the Respondent.

78. October 22, 2010, Appellant Andre 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, the Registrar


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Micheal Bray confirmed that the Service by email was not in fact

considered Service on a non solicitor according to the Rules of Court.

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

Andre Murray telephoned the Office of the Solicitor for the Respondent,

and did reach the Solicitor Thomas Christie for the Respondent.

Appellant Andre Murray verbalized that the Appellant had not yet

received a copy of the Respondents Submission, furthermore, confirmed

that the Appellant must be served according to the Rules of Court. The

Solicitor for the Respondent replied that my request was not able to be

granted as he (Respondents Solicitor) was currently preparing to leave

Fredericton for destination Woodstock. Furthermore, that Appellant

Andre Murray should attend his Office Mail box on Monday (3 days

later) at which time the Respondents Submission would be available.

The Respondents Solicitor protested that, Appellant should not wish to

wait until Monday. Again, offered to leave a copy in the mail box of his

office on Monday for me to pick up. The Appellant stated that, the mailbox offer would not suffice and wished to have a copy sent to me right-

way, and Appellant Andre Murray suggested, offering, that local couriers

could accomplish the Document Process Service job that very same day

as it was still early morning . Courier Service was rejected and instead,

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

document. The Appellant 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


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because that was 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. The Appellant

stated, that, the way Appellant already indicated the Appellant wished to

be served was by registered mail and was told the document would be

mailed but not given a time frame by which that would happen, and the

Solicitor for the Respondent, quickly ended the conversation, stating that

other matters where pressing.

80. On October 22, 2010, immediately, following a telephone conversation

with the Solicitor for the Respondent, Appellant Andre Murray

corresponded by electronic facsimile a letter to the Solicitor for the

Respondent, confirming my position, further, my requirements regarding

the matter of Court Document Service upon the Appellant.

81. Please see TAB 10, page 37, EXHIBIT FF which is a copy, of the

October 22, 2010, the here within above mentioned facsimilecorrespondence letter to the Office of the Solicitor for the Respondent.

82. On Monday, October 25, 2010 Appellant Andre Murray, received an

envelope in my mail box, which had the return address of the Office of

the Solicitor for the Respondent, the contents of the envelope was the

Respondents Submission. The contents of the envelop 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 was placed on notice Mon, Jun 7, 2010, by


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email, please see Please see TAB 10, page 37, 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 14, page 49, EXHIBIT GG a copy of the subject envelope.

Costs

The following, regarding the question of Costs, has been provided the

Honorable Court of Appeal that when time to evaluate the question of

Awarding Costs this Honorable Court may have this accounting of the

Appellants experience in this matter.


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PART IV ORDERS SOUGHT

83.Under the Rules of Court, 62.21 Powers of Court of Appeal To Draw

Inferences and Make Decisions and regarding Further Evidence Rule

62.21(2) (b), Rule 62.21(2) (c), and Rule 62.21(3) (b) that this Court

may adduce new evidence on the appeal,

84.Under Rule 62.24 Failure to Comply with Rule and Rule 62.24(1) and

62.24(1) (c) of theRules of Courtfor an order that the Respondent pay

costs of the within Motion and the costs of the Appeal forthwith, fordilatory 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.

85.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.

86.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 Ferris v. The City of Fredericton, 2010 NBCA 55

(CanLII) Justice RICHARD J.A. listed the criteria for the reception of

new evidence on appeal;

(may it please the Court; at paragraph 16) url link is provided below:

http://www.canlii.org/en/nb/nbca/doc/2010/2010nbca55/2010nbca55.ht

ml

2. Reference: In Ryan v. Law Society of New Brunswick, 2000 CanLII

17232 (NB C.A.)Justice Robichaud, JJ.A. stated, regarding when this

Court should permit further evidence under Rule 62.21(2),

(may it please the Court; at page 8 to page 13,) ur