December 4, 2009, Affidavit of Andre Murray filed in support of December 4, 2009, Amended Notice of Motion, I had filed regarding Rescinding the impugned October 20, 2009 Orders of

8/2/2019 December 4, 2009, Affidavit of Andre Murray filed in support of December 4, 2009, Amended Notice of Motion, I h

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Court File Number: MC064209IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICKTRIAL DIVISIONJUDITICAL DISTRICT OF MONCTON

BETWEEN: ROYAL BANK OF CANADA & 501376 N.B. Ltd.,a body corporate,

ANDRE MURRAY

Plaintiffs,

-and-

Defendant,

AFFIDAVIT1, Andre Murray of the City of Fredericton, in the county of York and Province of NewBrunswick, MAKE OATH AND SAY AS FOLLOWS:

1. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of defau1t be set aside in accordance with Rule 18.08 of theRules of Court because service was not properly conducted according to TheRules of Court, Rule 18.01 Personal Service "(a) shall be served personal~unless provided otherwise by an Act or by these rules," see Exhibit "11".!\.

2. I Andre Murray was not Personally Served with the court documents. Attachedhereto and marked Exhibit "M" is a copy of additional Rules of courtcopied from http://www .gnb.cal0062/regs/Rule/RULE IS.pdf.

3. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of default be set aside in accordance with Rule 18.08 oftheRules of Court because service was not properly conducted according to TheRules of Court, Rule 18.02, How Personal Service Shall be Made "(1) Personalservice shall be made as follows: Individual (a) on an individual, other than aperson under disability, by leaving a copy ofthe document with him;"(seeExhibit "M"), I am not aware of any attempt to be contacted by a phone call, e-mail or other communication to make arrangements with the defendant Andre


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15, I Andre Murray do verily believe that under Rule 37,06, ofthe Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of default be set aside in accordance with Rule 18,08 of theRules of Court because I Andre Murray do verily believe and have observed thatin the Affidavit of Service O f Dave Daneliuk, exhibit "0" that Dave Daneliukclaims in Paragraph 1, that on the 13th of October that Dave Daneliuk served acopy of the Notice of Action with Statement ofClaim Attached and Notice ofMotion. Furthermore, Process Server Dave Daneliuk claims that on thefollowing day he did forward by prepaid mail identical copies of the documentsto the Defendant. This claim was repeated in paragraph 3 and is very curiousbecause the affidavit was signed as being sworn to in Moncton New Brunswickon the 14th of October 2009 which is in fact the very next day when in fact theenvelope is Officially Stamped Bearing CANADA POST FREDERICTON markdated 15 day of October, 2009, Why was the date of the 14thof October, 2009 notindicated as the day on which subject documents where forwarded by prepaidmail.

16. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of default be set aside in accordance with Rule 18,08 of theRules of Court because I Andre Murray do verily believe and have observed thaton the exterior of the envelope that I received in the mail box on the 191 1 1 day ofOctober, 2009,(only one day before DATE set for hearing of motion) a copy ofwhich can be seen as exhibit "J" that the Address area of the envelope, the wordStreet is absent from the expected location following the Street name Marshall,which could in all likely hood caused confusion for the post office workersattempting to deliver this document seeing as how Marshall could have been aStreet, Lane, Avenue or road. Absent the customary use of a POSTAL CODE Iexpect this would have caused quite some confusion and delay of the delivery ofthe mail by the post office,

17. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Couri ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of default be set aside in accordance with Rule 18,08 of theRules of Court because I Andre Murray do verily believe that in Exhibit "N" TheOrders of the court dated Oct 20,2009, Order number 4 stated "That service ofthe Notice of Action with Statement of Claim Attached, Notice of Motion,Amended Notice of Motion, and any Order of the Court shall be sufficient byposting a copy of same at the door of the premises located at 29 Marshall Street,Fredericton, New Brunswick, and shall be effective on the date of postingthereof', According to Rules of Court ,Rule 18,04 Substituted Service (2)"fu anorder for substituted service, the court shall specify when service in accordancewith the order is effective." I do not see that a date was specified in accordancewith this Rule 18,04, ofthe Rules of Court. See Exhibit "M",

18. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of default be set aside in accordance with Rule 18.08 of theRules of Court because I Andre Murray do verily believe and have observed t atin Court Order number 5 , see Exhibit "N" "That service of the Notice of Acti n


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Murray nor has the Defendant been presented with a affidavit to this effect. TheDocuments to be served, from the Sept 18th filling date by the Plaintiffs in thismatter, the Notice of Action with Statement of Claim Attached and Notice ofMotion with the affidavit in support of the alleged leaving of a copy ofdocuments a full 26 days after filling of the same documents and only Seven daysbefore COURT HEARING DATE Oct 13lh 2009

4. I Andre Murray do believe that the service mentioned above in paragraph 3 iscontrary to RULES OF COURT, MOTION AND APPLICATIONS RULE 37PROCEDURE OK MOTION 37.04 (5) Timefor Service. Where service ofaNotice of Motion or Preliminary Motion is required, it shall be made at least 10days before the date of the hearing.

5. I Andre Murray do believe that nothing less then ten days seems reasonable,furthermore, that the simplest most direct method to serve an defendant would beto contact that individual defendant and arrange to have him or her meet theProcess server to effect service. Yet to my knowledge this was not attempted.

6. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or thatthe consequences of default be set aside in accordance with Rule 18.08 of theRules of Court because no personal service was attempted from Sept 18l,\2009until Oct 5,2009. This would indicate to me that there was no urgency on thepart ofthe Plantiffs for service in this matter,

7. I Andre Murray do verily believe that mischief must be involved and or bad faithdealings because 1must note that no sooner than Oct 14th 2009 The AmendedNotice of Motion was allegedly filed requesting "that the Court abridge the timerequired for service of the within Notice of Motion pursuant to Rule 3.02 oftheRules of Court". This appears to me to be a tactic that abuses the Courtprocedures, utilizing the Ru1es of Court to the disadvantage of the Defendant.

8. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of default be set aside in accordance with Rule 18.08 of theRules of Court because no attempt to contact the defendant was made from Septis", 2009 until Oct 13,2009 other than allegedly by Dave Daneliuk. This wouldindicate to me that there was no urgency for service in this matter yet, on Oct14th 2009 a Amended Notice of Motion was allegedly filed in COURT ofQUEENS BENCH TRIAL DIVISION of MONCTON "That the court approveof substituted service pursuant to Rule 18.04 and/or validation of servicepursuant to Rule 18.09 of the Rules of court of New Brunswick, by posting acopy of the Notice of Action with Statement of Claim attached, and the Notice ofMotion with supporting affidavits to the door of the residence located at 29Marshall Street, Fredericton, New Brunswick, to be affective on the date soposted." The claim by Dave Daneliuk in his Affidavit is that "Based on theforegoing, I do believe that Andre Murray and/or the occupants of the propertydo not intend to answer the door to accept service and will continue to attempt toevade service".


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9. I Andre Murray believe that a erroneous scenario was being created whichwould falsely cause the HONORABLE COURTS to believe that the DefendantAndre Murray was attempting to evade service. This appears to me again to be atactic that abuses the Court procedures, utilizing the Rules of Court for theadvantage of the Plaintiffs.

10. I Andre Murray believe that bad faith and abuse of court procedure OCCUlTedwhen solicitor for the Plaintiffs George LeBlanc crafted the ORDER for theHONORABLE JUSTICE Zoel R.Dionne falsely indicting that the AMENDEDNOTICE OF MOTION had been served on the Defendant Andre Murray on the13th day of October, 2009 when in fact the AMENDED MOTION did not existand had never been filed with the in COURT of QUEENS BENCH, TRIALDNISION of MONCTON.

1L I Andre MLUTaydo verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted and orthat the consequences of default be set aside in accordance with Rule 18.08 of theRules of Court because I Andre Murray do verily believe that we see in Exhibit"N" which are The Orders of the COURT DATED Oct 20,2009 which state"That service of the Notice of Action with Statement of Claim Attached, Noticeof Motion, AMENDED NOTICE OF MOTION, and any Order of the Court shallbe sufficient by posting a copy of same at the door of the premises located at 29Marshall Street, Fredericton, New Brunswick, and shall be effective on the dateof posting thereof'.

12. I Andre MLUTayhave knowledge of this matter in Paragraph 11 and state that theAMENDED NOTICE OF MOTION was never served on me.

13. I Andre Murray have knowledge of this matter in Paragraph 11 and verily believethat the AMENDED NOTICE OF MOTION never existed on the 13th of Octoberas I do believe the ORDER crafted by solicitor for the Plantiffs, George LeBlancon request by the HONORABLE JUSTICE Zoel R Dionne falsely indicated thatthe AMENDED NOTICE OF MOTION was served on the defendant when infact it did not at that time exist Consequently I Andre Murray do not believe thatPROOF OF SERVICE exists contrary to and according to the Rules of Court,Rule 18.10 (1). Attached hereto and marked Exhibit "N" is a copy of TheOrders of the court dated Oct 20th, 2009.

14. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or thatthe consequences of default be set aside in accordance with Rule 18.08 of theRules of Court I Andre Murray do verily believe that in Exhibit "0"Affidavit ofService by Dave Daneliuk there is no indication by Process Server DaveDaneliuk that as a Process Server attempted to serve the Amended Notice ofMotion according to The Rules of Court, Rule 18.10 Proof of Service "(1) Theservice of a document may be proved by an affidavit of the person effecting suchservice (Form 18B)".


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with Statement of Claim Attached, Amended Notice of Motion, Notice ofMotion, and attached Affidavits in support thereof are hereby validated pursuantto Rule 18.09, as of the date of posting a copy of same at the door of the premiseslocated at 29 Marshall Street, Fredericton, N.B. being October 13th, 2009." Thisvalidation of service is not possible because although Court Order number 5 isindicating that the Amended Notice of Motion was served at the property on Oct131\ 2009, the Amended Notice of Motion was amended on the 14th of Oct, 2009and could not have been served the day before being Amended.

19. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of default be set aside in accordance with Rule 18.08 of theRules of Court because I Andre Murray am aware that contrary to Plaintiffshaving filed NOTICE of ACTION and STATEMENT of CLAIM the Sept is",2009 furthermore and contrary to Plaintiffs having filed NOTICE of MOTIONSept 18th 2009 that the service of these documents of originating process wherenot sincerely attempted to be served at any time before Oct 5, 2009 and verilybelieve that at that time the intended service of the subject mailed documentswhere purposely rendered damaged and illegible before mailing at a timerecklessly close to the actual hearing date of the court proceedings andfurthermore I find it implausible that so many irregularities could occur otherthan that this was an orchestrated effort to obstruct justice and to insure that thedefendant would not be able to counter the claims of the plaintiffs' .

20. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of default be set aside in accordance with Rule 18.08 of theRules of Court because I Andre Murray do verily believe that the court wasmislead into believing that according to The Rules of Court, Rule 18.09Validating Service "(b) the document was left so that it would have come to thenotice of the person sought to be served, except for his own attempts to evadeservice." See Exhibit "M". ) The document where not left so that they wouldhave come to the notice of the Defendant Andre Murray because the door thedocuments where found at by Andre Murray was, behind a secured gate and thedoor so uncommonly used, that I Andre Murray have not in tlrree years used thisdoor to enter and exit the building, furthermore there is furniture on the inside ofthe building blocking the way through the doorway. Furthermore, this doorentrance is clearly marked as civic address 31 and is tucked away inside analcove of the building.

21. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of default be set aside in accordance with Rule 18.08 of theRules of Court because that service was attempted I believe in bad faith, and thata situation was created that erroneously caused the assumption that service wasbeing evaded by the Defendant Andre Murray. The abuse of process resulted inthe Defendant Andre Murray not knowing to appear in court to defend himselfand a hearing which was conducted Ex parte. The one sided Ex parteproceeding with the Defendant, given the circumstances, not surprisingly absentcaused Justice Zoel R. Dionne on Oct z o " , 2009 to have only unbalanced


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information with which to make a decision which was clearly in the favor of thePlaintiffs.

22. I Andre Murray do verily believe that under Rule 37.06, of the Rules of Court ofNew Brunswick, that rescinding of the requested orders may be granted or Thatthe consequences of default be set aside in accordance with Rule 18.08 of theRules of Court because Ihe Defendant Andre Murray have a year to year leasein accordance with The Residential Tenancies Act of New Brunswick,1975, c.R-IO.2, s.9. I the Defendant Andre Murray did sign a FORM 6STANDARD FORM OF LEASE.l the Defendant Andre Murray have prepaid therental fees of my tenancy agreement up to Sept 1,2010 and am in good standing.Ihe Defendant Andre Murray was not notified in accordance with TheResidential Tenancies Act of New Brunswick, in writing, three monthsbefore the end of the year to year lease period beginning Sept 1,2009 bythe landlord of a termination of tenancy. Ihe Defendant Andre Murray doverily believe The Residential Tenancies Act of New Brunswick protectstenants such as myself from abuse such as unlawful eviction.

23. This affidavit is made in support ofa NOTICE OF MOTION by Andre Murray.

J ! \ . N TARYCOM 0 EROFOATHSPROVINCE OF NEW BRUNSWICK

LOR I J. OANlaSC O M M IS S IO N ER O F O A T H S

C O M M ls s tO N E X P IR E SDECEMBER 3 1 ,2 0 14

))))))))))----~~~~-r~--~-----) Andre Murray

SWORN TO AT THE City of Fredericton,In the County of York and Province ofNe1Y BRnswick thisJ\4 day of f-J e C . 2009.BEFORE ME:

W itn es se d o nly , n o le ga l a d vic e filiv en ITemo in s eu lemen t, a u cu n c on se ilju rid iq u e


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L O R \ J. D A N \ E l . SC O M M IS S IO N E R O F O A T H S

C O M M IS S IO N E X P IR E SD E C EM B E R 3 1 , 2 0 1 4

EXHIBIT----~----------

Rules of court copied from http://www.gnb.ca/0062!regs/Rule/RULE18.pdf.RVLE18SERVICE OF PROCESS18.01 When Personal Service is NecessaryOriginating Process(1) An originating process(a) shall be served personally unless provided otherwiseby an Act or by these rules, and(b) need not be served on a party who has filed andserved a defence.Other Documents(2) Other documents need not be served personallyunless personal service is expressly required by an Act,these rules, or an order of the court.18.02 How Persona] 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;18.04 Substituted Service(1) Where personal service of a document is requiredby these rules, and it appears to the court that it is impracticalto effect prompt personal service, the court maymake an order for substituted service.(2) Inan order for substituted service, the court shallspecify when service in accordance with the order is effective.18.08 Service Not Conclusive(1) Whether or not a person has been served with adocument in accordance with these rules, the person mayshow on a motion to set aside the consequences of default,or on a motion for an adjournment of a proceeding or foran extension of time, that the document(a) did not come to the person's notice, or(b) came to the person's notice only at some timelater than when it was served or is deemed to have beenserved.(2) On the hearing of a motion referred to in paragraph(1), the cOU1imay allow the motion if it is satisfiedthat the applicant has established the grounds referred toin clause (l)(a) or (b).
http://www.gnb.ca/0062!regs/Rule/RULE18.pdf.http://www.gnb.ca/0062!regs/Rule/RULE18.pdf.


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90-2018.09 Validating ServiceWhere a document has been served by some methodnot authorized by an Act, these rules or an order of thecourt, or where there has been some irregularity in service,the court may order that the service be validated onsuch terms as may be just, if the court is satisfied thatsought to be served, or(b) the document was left so that it would have cometo the notice of the person sought to be served, exceptfor his own attempts to evade service.18.10 Proof of Service(1) The service of a document may be proved by anaffidavit of the person effecting such service (Form lSB).(2) The personal service of a document by a sheriff orhis deputy may be proved by a Certificate of Service(Form lSC) endorsed on a copy of the document served.(3) The written admission or acceptance of service bya solicitor is sufficient proof of service and need not beverified by an affidavit.


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l O R I J . D A N I E L SC O M M IS S IO N E R O F O A TH SC O M M I S S IO N E X P IR E SD E C E M B E R 31 , 2 01 4( r J \ \

EXHIBIT----~~----------

50 13 76 N .D . L td .. IIbOOy(I.Irporate,

- MlQ

A ND R E M U RR AY,Def e ru ial l t,

O R D E R

NOWTHEREFORE it Is h er eb yo rd ere d a s f ollo ws:

I} T he D efe nd an t, A n drft M u rray an d/o r aTlYother oc cu pa nts o f t he p ro p cn ylocated at 2 9 M a rsh all S tre et, P rc de ric to n, N e w B ru nsw ic k b e re qu ire d tnvacate the property forthwith ailing which the Sheriff shall be directedto ta ke w ha te ve r law fllt ste ps ar e n ec essar y to e ", il ;t ! he D e fe n da nt. A n d reM u rray an d/o r 3ny o the r o cc up an ts o f the p ro pc ny fro m the afo re saidpremises ;

2) That the Defendant, A n dre M u rr ay and/or 111)' other OCCUpl1ru~ ofUlep ro pe rty b e o rd ere d that they ar e n ou o cause a ny d am a ge to th e p r op e rt yin vacating Slime;

J} T hat tim e fo r se rv ic e o f th e w ithin N o tic e o f Mat ion b e a b ri d ge d ;4} T hat se rv ice of the N otice of A cticn w ith S tate me nt of C laim A ttache d,

Notlce of Motion, Amended Notice o r Motion lind any Order of theCOlJn snal l be S\lfficiem by j l O $ t i n g IIc op y o f slS rn ~at the d oo r o f th epremises located at 29 Mar1lhaU Street, Fredericton, New 6runswick.ilJ1dshall be e ffe ctiv e o n th e d ate o f p ostin g tb er eo f;

5) ii )a t s er vi ce o f'the N otic e o f A ctio n w i t h Statement ef'Claim Attached,Amend ed Not ice o f M ati o n, N otic e o f M o tio n, an d anached Af f id av i lS i nsu pp ort the re of arc hereby valida le d pursunnt ro R ule 1 8J l9 , 3S ofthed ate o f p ostin g a . copy of 31Une at th e d oo r o f the p re m ise s lo ce te d lit 2 9MII~hall Street. fredericton, N ew Brunswick, being October 1311 ' , 2001) ,

6} The Dcfaldant. Andre Mumy shall pay costs of the within Notice ofMo rio n w bic h lin: I I f f ixed in lhe am o un t o(Sl .OOQ,OO.

(I.DATED a t MonC IOn , N ew B r un sw ic k , T h i s ,2 (j day of 'Oc to 'oc r ,2009. ------


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L O R l J . D A N i E L SC O M M IS S IO N ER O F O A TH SC O M M IS S IO N E X P IR E SD E C E M B E R 3 1 ,2 0 1 4

EXHIBIT - - - - - - - - - - - - - - - - - - - -

/IN TH E COURT OF Q UEE N'S BE NC H OF N EW B RUN SW ICKTRIAL DIVISIONJlJDIC1AL DlSTRfCT OF MONCTON

!lr'T\VFFN:O C T ' ~ 2 0 0 G

~ ~ ? : ~ , ; ; ~ " : L ; , : :~f~;:~~~IWYAL BANK OF CANADA & 501376 N.!. ." - J .! Q . .ii~;;~~Ltd., a body co rp o rate L_______..2 :~ ""-Plaintiffs

- and -ANDRE MURRAY, Defendant

A FF ID A V IT O F S ER VIC EI, Dav!d A. Daneliuk Process Server of Fredericton in the County of York and Province of NewBrunswick, MAKE OATIl AND SAY AS FOLLOWS:

l. That on the 13 OCTOBER 2D09 at 11:33 a.m., I \lid serve ANDRE MtnmAY with theauachcd NOTICE OF ACTION WITH STATEMh"'NT OF CLAIM ATTACHED (FORM 16A)marked "1\" and NOnCE OF MOTION (FORM 37AO marked "B" by leaving affixing copies ofthe same in a sealed envelope addressed to him taped 10 the trent door of his residence located at2') Marshall Street, in th e City of Freder i c ton , in t he C o un ty of York and the Province of NewBrunxwick and on the following day forwarding by prepaid mail an identical copies of theDocuments to the Detendant to the above listed address,

2 e J made several attempts at service upon the Defendant on the following dates and times havingti]ilcd:a. October 5' 2009 at 7:3D 3.111. (10 min) 2:00 p.m. dive past and 9:00 p.rn. for 20min;h. October 6' 2009 6:30 p.m, I hour;G. October 7' h 8:00 a.m. for 10 min and again at I : 00 p.m, for 20 min:d. October 911 ' 5 p.m. for 15 min and again at 8:30 p.rn. for I hour; andc. October IOU'2009 at l():OOa.rn, and re turned to the property 816:45 p.m. for 45 minutes

3. I did on the following day forward by prepaid mail identical copies of the Document (0 him to theub ov e 1 is te d address,