Court File Number: F/C/45/11 IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON

BETWEEN: ANDR MURRAY Plaintiff, -andTHE CITY OF FREDERICTON, and others

Defendants, _______________________________________________________ Pre Hearing Brief Filed by Plaintiff ANDRE MURRAY To be Used on the Plaintiffs Motion for Joinder of Parties and Claims Scheduled to be Heard January 19, 2012. ________________________________________________________ Andr Murray Plaintiff Self Represented 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Leanne Murray Associate with Mcinnes Cooper, Barker House, Suite 600 570 Queen Street PO Box 610 Fredericton NB E3B 5A6 tel +1 (506) 458 1624 fax +1 (506) 458 9903 cell +1 (506) 470 6696

Leanne Murray Solicitor for The City of Fredericton, Fredericton Police Force. Chief of Police Barry MacKnight, Sergeant Myers, Constable Mike Fox, Constable Patrick Small, Constable Nancy Rideout, Constable Debbie Stafford, Constable Michael Saunders

Neil Rodgers Self Represented 15 Fisher Ave Fredericton, NB E3A 4J1

Trina Rodgers Self Represented 15 Fisher Ave Fredericton, NB E3A 4J1

Plaintiffs Pre Trial Brief Part I index Page Part I An index of the contents;_____________________________________ i Part II A concise statement of all relevant facts with such references to the evidence as may be necessary;___________________ 1 Part III A concise statement of the argument, law, and authorities relied upon; Introduction____________________________________________________ 2 Limitation of Actions Act (S.N.B. 2009, c. L-8.5)_____________________ 5 Section 21 ____________________________________________________ 10 Section 5(2) ___________________________________________________ 12 Section 6 _____________________________________________________ 14 Rules of Court JOINDER OF CLAIMS AND PARTIES ______________ 15 27.10 Amendment of Pleadings ___________________________________ 22 Extend Rule 16.08 (1)____________________________________________31 Equity________________________________________________________ 36 Cost Orders in favor of self-represented litigants____________________ 47 Part IV A concise statement of the order sought from the Court,_______ 49

Part II A concise statement of all relevant facts with such references to the evidence as may be necessary;

Filing Action - Court File Number: F/C/45/11 1. March, 4, 2011 I Andre Murray did file a NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011 Court File Number: F/C/45/11 with the Court Client Services Fredericton New Brunswick. 2. At 3:55 PM on the 2nd day, of September, 2011, I Andr Murray, served, Defendants THE CITY OF FREDERICTON inter alia, with a NOTICE OF ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011, Court File Number: F/C/45/11 3. September, 8, 2011, I Andre Murray did file (as noted above within 7 days of service of original claim) a AMENDED NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8, 2011, Court File Number: F/C/45/11 with Client Services for Court of Queens Bench, Fredericton New Brunswick; 4. At 2:09 PM on the 9th day, of September, 2011, I Andr Murray, served, Defendants THE CITY OF FREDERICTON inter alia; 5. At 6:30 PM on the 15th day, of September, 2011, , I Andr Murray, served, Defendant Neil Rodgers; 6. At 6:30 PM, on the 15th day, of September, 2011, served, Defendant Trina Rodgers; 7. At 3:40 PM, on the 21st day, of September, 2011, I Andr Murray, again served, Defendants THE CITY OF FREDERICTON and others; 8. At 10:00am on the 3rd day, of October, 2011, I Andr Murray, served, Defendant Chief of Police Barry MacKnight; 9. 1:00pm, the 6th day, of October, 2011,, I Andr Murray, served, Defendant Constable Patrick Small;

10. 10:00 am, the 7th day, of October, 2011, I Andr Murray, served, Defendant Sergeant Matt Myers; 11. 10:00 am, the 7th day, of October, 2011, I Andr Murray, served, Defendant Constable Debbie Stafford; 12. 11:00 am, the 9th day, of October, 2011, I Andr Murray, served, Defendant Constable Mike Fox; 13. 10:20 am, the 11th day, of October, 2011, I Andr Murray, served, Defendant Constable Nancy Rideout; Part III A concise statement of the argument, law, and authorities relied upon; Introduction The grounds to be argued 14. The proposed amendments state legally valid claims.

15.

On motion at any stage of an action the Honorable Court may grant

leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment, in this case no such prejudice exists.

16.

Every person whose presence as a party is by law necessary to enable

the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.

17.

Despite the expiry of the relevant limitation period established by

Limitation of Actions Act, SNB 2009, c L-8.5, a claim may be added, through a new or an amended pleading, to a proceeding previously commenced if the

added claim is related to the conduct, transaction or events described in the original pleadings and the added claim is made by a party to the proceeding against another party to the proceeding and does not change the capacity in which either party sues or is sued.

18.

There is a common series of events underlying the Plaintiffs claims,

tying the separate Defendants into a larger ongoing theme.

19.

The plaintiff has a separate claim against TRINA RODGERS, NEIL

RODGERS, CONSTABLE PATRICK SMALL, CONSTABLE DEBBIE STAFFORD, CONSTABLE MICHAEL SAUNDERS, and JOHN DOE 2 are personally arising out of these transactions, then clearly they should be added as a party so that all claims can be adjudicated effectively and completely in one proceeding.

20.

The objectives of the compulsory joinder principle in court actions ,

were, and still are, simple enough: from the viewpoint of the Court, to do a complete job on the controversy in one sitting; from the view-point of those already parties, to protect them against the consequences of subsequent litigation reaching inconsistent results; from the viewpoint of those not made parties but by the rule required to be brought in, to assure that their practical out-of-court situation would not be adversely affected by changes in the status quo wrought in consequence of the judgment.

21.

5.01(1) Persons may be joined as defendants because in a proceeding,

a plaintiff may join any claims he has against an opposite party whether or not they are being made by him in the same or different capacities.

22.

Persons may be joined as defendants, although, it is not necessary that

every defendant be interested in all the relief claimed or in every claim included in a proceeding.

23.

Persons may be joined as defendants or where relief is claimed against

them (whether jointly, severally, or in the alternative) arising out of the same transaction, occurrence, or series of transactions or occurrences,

24.

Persons may be joined as defendants or where a common question of

law or fact may arise in the proceeding,

25.

Persons may be joined as defendants or where there is doubt as to the

person or persons from whom the plaintiff or applicant is entitled to relief.

26.

Persons may be joined as defendants or where damage or loss has

been caused to the same plaintiff by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff, and there is doubt as to the person or persons from whom he is entitled to relief or the respective amounts for which each may be liable,

27.

Persons may be joined as defendants where their presence in the

proceeding may promote the convenient administration of justice.

28.

The court may, on such terms as may be just, extend or abridge the

time prescribed by an order or judgment or by Rules of Court on a motion for

extension of time, that which, may be made either before or after the expiration of the time prescribed.

29.

The court may at any time dispense with compliance with any rule,

unless the rule expressly or impliedly provides otherwise.

30.

A procedural error, including failure to comply with these rules or with

the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. In particular, the court shall not set aside any proceeding because it ought to have been commenced by an originating process other than the one employed.

31.

Defendant will prove that the balance of convenience favors the

granting of the relief sought, 32. Plaintiff Andr Murray relies on the Limitation of Actions Act, SNB 2009, c L-8.5, Section 5(2), Section 6, further, regarding Claims added to proceedings Section 21 (a) and Section 21(b). 33. The Plaintiff Andr Murray relies on Rules of Court governing Persons who may be joined as Defendants, Rules of Court 5.01 (1) and (2), Required Joinder of Necessary Parties; Rule 5.03 2 (a), (b), (c), (d), (e), Multiple Defendants or Respondents. 34. The Plaintiff Andr Murray relies on Rules of Court governing Amendment of Pleadings, Rule 27.10, 1 and 2 (a), (b) and or (c). Limitation of Actions Act (S.N.B. 2009, c. L-8.5)

35.

Limitation of Actions Act (S.N.B. 2009, c. L-8.5), provides the

General limitation periods, pursuant to section 5(1) as follows: 5(1) Unless otherwise provided in this Act, no claim shall be brought after the earlier of (a) two years from the day on which the claim is discovered, and (b) fifteen years from the day on which the act or omission on which the claim is based occurred.

36.

May 7, 2008, I Plaintiff Andr Murray while travelling by bicycle

within THE CITY OF FREDERICTON members of FREDERICTON POLICE FORCE intercepted me, then without warning physically attacked me, thereby inflicting significant injuries upon me during a unprovoked arrest procedure. 37. 3:34 PM May 5, 2009, I Andr Murray did file a complaint with the

NEW BRUNSWICK POLICE COMMISSION against FREDERICTON POLICE FORCE, regarding the May 7, 2008 incident,.

38.

4:13 PM May 5, 2009 I Andr Murray did receive an

acknowledgement of receipt of my e-mail correspondence from Jocelyn (Josh) Ouellette Executive Director (as he then was) of The NEW BRUNSWICK POLICE COMMISSION regarding my complaint against members of FREDERICTON POLICE FORCE, a incident occurring May 7, 2008.

39.

June 16, 2009 I Andr Murray did receive an e-mail correspondence

reply from S/Sgt. Daniel R. Copp of the Office of Professional Standards of FREDERICTON POLICE FORCE, acknowledging receipt of my complaint.

40.

September 29, 2009, Chief of Police Barry MacKnight, did write a

letter, addressed to me Dated, September 29, 2009 thereby, notifying me Andr Murray of his decision to summarily dismiss my complaint, re: FREDERICTON POLICE FORCE File number, (FPF File 09- 10302) regarding Plaintiff Andr Murrays complaint, against the FREDERICTON POLICE FORCE, regarding the May 7, 2008 incident.

41.

September 27, 2010, I Andr Murray, pursuant to Right to Information

and Protection of Privacy Act, S.N.B. 2009, c. R-10.6 did apply for correspondence and other documents, which may reveal other possible motivations for the outrageously violent behavior directed at Andre Murray by members of FREDERICTON POLICE FORCE which I verily believe included the presence of Trina Rodgers, as a witness therefore, involved in the subject incident of May 7, 2008.

42.

November 5, 2010, I Andre Murray, received a letter from THE NEW

BRUNSWICK POLICE COMMISSION (Police Commission file number 2010-RTIPPA-02), which inter alia read After seeking third party intervention from the Fredericton Police Force, we are partially granting access to the requested records. The letter indicated that THE NEW BRUNSWICK POLICE COMMISSION would be disclosing a portion of the records requested and notably that FREDERICTON POLICE FORCE was involved in that decision.

43.

December 9, 2010, I Andr Murray did receive a reply correspondence

from New Brunswick Police Commission, stating inter alia that New Brunswick Police Commission in spite of RTIPPA (Police Commission file

number 2010-RTIPPA-02) New Brunswick Police Commission is declining Andr Murray full access to documents specific to this subject matter, further, in particular an Appendix C which consists of the investigation report prepared by FREDERICTON POLICE FORCE and copy provided to New Brunswick Police Commission.

44.

On January 10, 2011, I Andre Murray did file with Court of Queenss

Bench Client Services FORM 1 REFERRAL, Dated January 10, 2011, regarding full disclosure of information related to the May 7, 2008 incident.

45.

January 13, 2011, New Brunswick Police Commission did partially

make available the above mentioned subject documents as requested by Andre Murray pursuant to New Brunswick Police Commission File: 2110 C- 09- 09 further, New Brunswick Police Commission File: 2010 RTIPPA- 02.

46.

The partial disclosure did reveal that FREDERICTON POLICE

FORCE were called by a person who gave a description of someone matching the Plaintiffs description engaged in some illegal activity and that was the actual reason why the Plaintiff was initially accosted May 7, 2008.

47.

March, 4, 2011 I Andre Murray did file a NOTICE OF ACTION

WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011 Court File Number: F/C/45/11 with the Court Client Services Fredericton New Brunswick, this Action was specific to the March 5, 2009 incident. If one considers the March 5, 2009 incident independently, filing this Action was within the general limitations period according Limitation of Actions Act (S.N.B. 2009, c. L-8.5), section 5(1).

48.

After filing the March, 4, 2011 a NOTICE OF ACTION WITH

STATEMENT OF CLAIM ATTACHED (FORM 16A), I Andre Murray did reasonably attempt to acquire, further information regarding both May 7, 2008 and March 5, 2009 incidents, in furtherance of this goal, I did endeavour to have heard, two referrals to the Court of Queens Bench, the matter of a referral was rescheduled several times, until finally heard August 11, 2011, regarding both Court File Numbers. F/M/1/11 and F/M/22/11. The decision is still pending.

49.

I Andre Murray did draft an Amended NOTICE OF ACTION WITH

STATEMENT OF CLAIM ATTACHED (FORM 16A), to include the May 7, 2008 incident and add as Defendants, parties who I believe are necessary to be included, for a just determination of the issues. I used the opportunity to edit the document, so as to be easily read and most accurately express the Plaintiffs Claims. I was not ready to File the Amended Claim, when it became time to serve the NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011.

50.

3:55 PM the 2nd day, of September, 2011, I Andr Murray, served,

Defendants THE CITY OF FREDERICTON and others, with a NOTICE OF ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011, Court File Number: F/C/45/11 by leaving a copy, with (THE CITY OF FREDERICTON) Acting City Administrator, according to Rules of Court, Rule 18.02(1)(b), which is within the time limitations for Service, according to the Rules of Court, Rule 16.08 Time for Service. Through the rule of agency (maxim qui facit per alium facit per se), Serving THE CITY OF

FREDERICTON is considered service of all agents for THE CITY OF FREDERICTON, namely all members of FREDERICTON POLICE FORCE.

51.

I Andre Murray did complete editing an AMENDED NOTICE OF

ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A), therefore, I did file same at the earliest opportunity.

52.

September, 8, 2011, I Andre Murray did file (within 6 days of service

of original claim) a AMENDED NOTICE OF ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8, 2011, Court File Number: F/C/45/11 with the Court Client Services, Fredericton, New Brunswick, this Amended Action was included the May 7, 2008 incident, and added further Defendants, regarding the March 5, 2009 incident.

53.

2:09 PM the 9th day, of September, 2011, , I Andr Murray, served,

Defendants THE CITY OF FREDERICTON and others, a AMENDED NOTICE OF ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8, 2011, Court File Number: F/C/45/11 by sending to City Solicitor Michelle Brzak, for subject named Defendants THE CITY OF FREDERICTON and others a facsimile of herewithin above described documents, accompanied by a copy of a cover page marked by telephone transmission to City Solicitors Fax 506-460-2128. Limitation of Actions Act Section 21

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54.

The Plaintiff Andr Murray rely on the Limitation of Actions Act,

SNB 2009, c L-8.5, regarding Claims added to proceedings Section 21 (a) and 21(b), reproduced below: PART 5 CLAIMS BROUGHT AFTER EXPIRY OF LIMITATION PERIOD Claims added to proceedings 21 Despite the expiry of the relevant limitation period established by this Act, a claim may be added, through a new or an amended pleading, to a proceeding previously commenced if the added claim is related to the conduct, transaction or events described in the original pleadings and the conditions set out in one of the following paragraphs are satisfied: (a) the added claim is made by a party to the proceeding against another party to the proceeding and does not change the capacity in which either party sues or is sued; (b) the added claim adds or substitutes a defendant or changes the capacity in which a defendant is sued, but the defendant has received, before or within 6 months after the expiry of the limitation period, sufficient knowledge of the added claim that the defendant will not be prejudiced in defending against the added claim on the merits; 55. I Plaintiff Andre Murray, did add a claims regarding a May 7, 2008

incident, through an Amended pleading, specifically a AMENDED NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8, 2011, Court File Number: F/C/45/11, to a proceeding (Action) previously commenced by a NOTICE OF ACTION with STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011 Court File Number: F/C/45/11, before the close of pleading as defined by Rules of Court Rule 27.05. The added claim is related to the conduct, transaction or events described in the original pleadings. The common event, or cause in both events is that a unnamed person or persons did provide fraudulent

11

representations to FREDERICTON POLICE FORCE, which resulted in members of the FREDERICTON POLICE FORCE, arriving at Plaintiff Andre Murrays location and subsequently Plaintiff Andre Murray was injured. Both events were cause by the same set of circumstances and Plaintiff Andre Murray believes that through discovery it will be revealed that both events were cause by the same individuals, namely Defendant Neil Rodgers and or Defendant Trina Rodgers.

56.

The added claims are made by Plaintiff Andre Murray, a party to the

original proceeding against other parties to the original proceeding, namely Defendant THE CITY OF FREDERICTON, Defendant FREDERICTON POLICE FORCE and Defendant Chief of Police Barry MacKnight, further these claims do not change the capacity in which any parties sues or is sued. Defendant Constable Small had additional claims made against him because he was present and participated at each incident, one being May 7, 2008 and the second being March 5, 2009.

57.

Further, the amended claim, adds Defendants, but the Defendant have

received, before or within 6 months after the expiry of the limitation period, sufficient knowledge of the added claim that the Defendants will not be prejudiced in defending against the added claim on the merits;

Limitation of Actions Act Section 5(2) 58. Further, Limitation of Actions Act (S.N.B. 2009, c. L-8.5), allows exceptions to the General limitation periods, as provided by section 5(2) as follows:

12

5(2)A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (a) that the injury, loss or damage had occurred, (b) that the injury, loss or damage was caused by or contributed to by an act or omission, and (c) that the act or omission was that of the defendant. 59. Pursuant to section 5(2)(b) and (c) A claim is discovered on the day,

on which the claimant first knew or ought reasonably to have known that the injury, loss or damage was caused by or contributed to by an act or omission, and that the act or omission was that of the defendants. January 13, 2011, pursuant to a Right to Information and Protection of Privacy Act, request, NEW BRUNSWICK POLICE COMMISSION did partially make available documents as requested by Andre Murray (NEW BRUNSWICK POLICE COMMISSION File: 2110 C- 09- 09 further, NEW BRUNSWICK POLICE COMMISSION File: 2010 RTIPPA- 02). I Andre Murray, subsequently, having reviewed subject NEW BRUNSWICK POLICE COMMISSION File: (File: 2110 C- 09- 09 ) 2010 RTIPPA- 02, subject investigation report summary and conclusion revealed the cause of Applicant Andre Murrays battery and arrest resulted and caused by persons being obscured - the following is an exact excerpt: Investigative Summary blacked out, a blacked out has provided a statement that he observed a male closely matching the description of a suspect in some type of crime, as a result he contacted the police station, and Cst. Debbie Stafford attended the area and attempted to stop and identify the individual. 60. The partial disclosure did reveal that FREDERICTON POLICE

FORCE, was called by a person who gave a description of someone matching

13

the Plaintiffs description, engaged in some undisclosed illegal activity which was the actual reason why the Plaintiff was accosted May 7, 2008. Before this subject RTIPPA disclosure, I Andre Murray was never informed of the reason, members of FREDERICTON POLICE FORCE, had attended the Plaintiffs location was because of the herewithin mentioned phone call. This revelation connects the May 7, 2008 event to the March 5, 2008, because both, events were caused by an unnamed caller, making fraudulent representation to the FREDERICTON POLICE FORCE, which was the causative event. The above mentioned Investigation summary was the evidence which caused Plaintiff Andre Murray to first know that the injuries suffered at the hands of FREDERICTON POLICE FORCE, were caused primarily by or contributed to by an act of the unnamed callers, sending FREDERICTON POLICE FORCE to the Plaintiffs location.

61.

The two year time calculation regarding the Limitations of Actions

Act, did begin counting at that time of January 13, 2011, regarding, discovery of the cause of the incident. Because both the March 5, 2009 and the May 7, 2008 incidents were caused by a unnamed caller, instructing FREDERICTON POLICE FORCE to attend Plaintiff Andre Murrays location, the two incidents are joined in cause. Based on this new time calculation Plaintiff Andre Murray did have until January 12, 2013 to file an Action, in this case Plaintiff Andre Murray chose to Amended existing Pleadings. Further, the Defendants were provided sufficient knowledge of the added claims, that the Defendants will not be prejudiced in defending against the added claim on the merits. The Defendants were made aware that the Plaintiff was seeking remedy, and pursuing these claims, by being contacted regarding investigations, into both may, 7, 2008 and March 5, 2009 incidents, conducted because of the Plaintiffs

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filed complaints regarding Police Conduct, further, the Defendants were contacted when the Plaintiff did make application for information pursuant to RTIPPA, the Defendants were contacted and asked if they would consent to disclosure of the information requested by the Plaintiff.

62.

The additional claims, contained in the AMENDED NOTICE OF

ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8, 2011, Court File Number: F/C/45/11 were served upon THE CITY OF FREDERICTON and FREDERICTON POLICE FORCE within 7 days of service of the Original NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated March, 4, 2011 Court File Number: F/C/45/11 and most notably before the close of the pleadings. All the other Defendants to the Action were served both original Action and the Amended Action at the same time, all before the close of pleadings.

63.

The Limitation of Actions Act, allows that if a Continuous act occurs,

such as in this case where a unnamed caller, (the Plaintiff alleges that this is Defendant Neil Rodgers and or Defendant Trina Rodgers) is calling FREDERICTON POLICE FORCE and providing fraudulent representation regarding the Plaintiff, as a consequence, General limitation periods are extended and for the purposes of calculating the limitation periods in section 5, to be a separate act or omission on each day it continues, therefore the time calculation, is counted from two years from the day of the new act occurs in the Continuous act.

Limitation of Actions Act Section 6

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64.

It is further, noteworthy to consider, Limitation of Actions Act (S.N.B.

2009, c. L-8.5), section 6, which allows that if a Continuous act occurs, this allows a recalculation of time limitations, as follows: Continuous act or omission 6 If a claim is based on a continuous act or omission, the act or omission is deemed for the purposes of calculating the limitation periods in section 5 to be a separate act or omission on each day it continues. 65. If Plaintiff Andr Murray was only relying on Section 6 of the

Limitations of Action Act, the time limits prescribed by the Limitations of Action Act for the May 7, 2008 incident would have been extended to the same time allowance as applied to the March 5, 2009 incident, because of the continuous act, regarding the unnamed caller. The Plaintiff could have filed the Action regarding the May 7, 2008 incident the same time, in which the original March 4, 2011 claim was filed, then the Defendants would have been required to be served by September, 4, 2011. September 4, 2011 is a Sunday, so service would have been acceptable on the following day, September 5, 2011. The Plaintiff did in fact serve the City of Fredericton with the Amended Claim on the 9th day, of September, 2011. The difference in time would have only been 4 days. Defendants THE CITY OF FREDERICTON and FREDERICTON POLICE FORCE, and through agency all other members of FREDERICTON POLICE FORCE, would have to demonstrate with evidence that they were somehow materially prejudiced in some meaning full way, further, that 4 days made the difference, in limiting their ability to Defendant the Action of its merits.

66.

Regarding Defendant Neil Rodgers and Defendant Trina Rodgers, they

were both served on the 15th day, of September, 2011. The difference in days between September 5, 2011 and September 5, 2011, would only have only been

16

10 days. Defendant Neil Rodgers and Defendant Trina Rodgers, would have to demonstrate with evidence that they were somehow materially prejudiced in some meaning full way, further, that 10 days made the difference, in limiting their ability to Defendant the Action of its merits.

67.

The Plaintiff Andr Murray has fulfilled the requirements of Section

5(2), Section 6, Section 21 (a) and Section 21(b) of the Limitation of Actions Act, SNB 2009, c L-8.5, therefore the general limitation period of the act is no bar to the Plaintiffs claims being heard on their merits: Rules of Court JOINDER OF CLAIMS AND PARTIES 68. The Plaintiff Andr Murray relies on Rules of Court governing Persons who may be joined as Defendants, Rules of Court 5.01 (1) and (2), Rules of Court 5.02 (2), further, Rules of Court 5.03 (2) (a), (b) (c) (d) and (e), those Rules of Court are reproduced as follows: JOINDER OF CLAIMS AND PARTIES 5.01 Joinder of Claims (1) In a proceeding, a plaintiff or applicant may join any claims he has against an opposite party whether or not they are being made by him in the same or different capacities. (2) It is not necessary that every defendant or respondent be interested in all the relief claimed or in every claim included in a proceeding. 5.02 Required Joinder of Necessary Parties (2) Everyone whose presence is necessary to enable the court to adjudicate effectively and completely the matter before it, must be joined as a party. 5.03 Permissive Joinder of Parties Multiple Defendants or Respondents (2) Persons may be joined as defendants or respondents where (a) relief is claimed against them (whether jointly, severally, or in the alternative) arising out of the same

17

transaction, occurrence, or series of transactions or occurrences, (b) a common question of law or fact may arise in the proceeding, (c) there is doubt as to the person or persons from whom the plaintiff or applicant is entitled to relief, (d) damage or loss has been caused to the same plaintiff or applicant by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff or applicant, and there is doubt as to the person or persons from whom he is entitled to relief or the respective amounts for which each may be liable, or (e) their presence in the proceeding may promote the convenient administration of justice. 69. In accordance with Rules 5.01(1) and 5.01(2) Joinder of Claims, I

Andre Murray as Plaintiff may join any claims against an opposite party whether or not they are being made by me in the same or different capacities, in this case those claims are being made in the same capacity, further more, it is not necessary that every Defendant be interested in all the relief claimed or in every claim included in a proceeding. In this case there are two events are in this action, which has six common Defendants, to both of the May 7, 2008 and the March 5, 2009 events described in this Action.

70.

In accordance with Rules 5.02 (2) Required Joinder of Necessary

Parties everyone whose presence is necessary to enable the Court to adjudicate effectively and completely the matter before it, must be joined as a party. Plaintiff Andre Murray does assert that the named Defendants are necessary to enable the Court to adjudicate effectively and completely the matter before it.

71.

In accordance with Rules 5.03 (2) Permissive Joinder of Parties

Persons may be joined as Defendants where relief is claimed against them

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arising out of the same transaction, occurrence, or series of transactions or occurrences, such as in this case, regarding the May 7, 2008 incident and the March 5, 2011 incident, both having a common cause. A common question of law or fact may arise in the proceeding, such as in this case and further, there is doubt as to the person or persons from whom the plaintiff is entitled to relief, because of the complicated, vicarious liability issues, whereby it will be a matter for the Court to decide full and partial liability, how should the damages be apportioned. This Rule allows that when damage or loss has been caused to the same Plaintiff by more than one person, whether or not there is any factual connection between the several claims apart from the involvement of the plaintiff and there is doubt as to the person or persons from whom he is entitled to relief or the respective amounts for which each may be liable, Persons may be joined as Defendants. Finally the presence of the named Defendants in the proceeding may promote the convenient administration of justice. 72. In Occo Developments Ltd. v. McCauley, 1998 CanLII 9812 (NB QB) Judge H. H. McLellan Stated the following: The courts tend to favour joinder of claims relating to the same transaction. For example, in Pic Realty Canada Limited v. Rocca Group Limited (1982), 41 N.B.R. (2d) 271 at page 278 and 279, Mr. Justice Stratton, as he then was, said: [Page 3] "As I read Rules 5 and 6, a plaintiff is not required to join several claims in one action although if the relief claimed arises out of or relates to the same transaction or occurrence, or if a common question of fact or law may arise in the proceedings, consolidation or trial together will generally be ordered. Thus, in my opinion, joinder is optional though highly desirable in the interest of the convenient administration of justice and probably should be ordered in all cases which meet the criteria unless it is

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established that the order will unduly complicate or delay the trial or prejudice a party. In determining the latter issue, the complication, delay or prejudice asserted by one party must be balanced against the inconvenience, expense or embarrassment to which the other party will be put if the actions are not consolidated, tried together or tried one after the other. Moreover, it is to be noted that the granting of an order for the trial together of two or more actions or for the trial of one immediately after the other is not only discretionary but the order itself is subject to the discretion of the judge who tries the case. "In my view, the resolution of this application requires a proper balance to be struck between the need to avoid a multiplicity of proceedings and the requirement not to unduly delay the trial of the present action or to prejudice "the plaintiffs." The court also try and avoid multiplicity of legal proceedings. The Judicature Act, R.S.N.B. 1973 c. J-2 s. 26(9) provides: "26(9) The court in the exercise of the jurisdiction vested therein by this Act in every cause or matter pending before the Court has power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to [Page 4] the Court seems just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter, so that as far as possible all matters so in controversy between the said parties respectively, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided." In my opinion the balance of convenience favours permitting the addition of Victor O'Connell as a Party Added by Counterclaim and allowing the defendants to amend their pleadings as requested.

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For these reasons, the motions are allowed. Costs will be in the cause. 73. As stated in Occo Developments Ltd. v. McCauley, 1998,

consolidation or trial together will generally be ordered, joinder is optional though highly desirable in the interest of the convenient administration of justice and probably should be ordered in all cases which meet the criteria, unless it is established that the Order will unduly complicate or delay the trial or prejudice a party. In this case, the requested Order will not unduly complicate or delay the trial or prejudice any party. The Defendants have not claimed prejudice, in any meaningful way in this matter of joinder of parties, the Defendants are simply trying to use a technicality, though erroneously claimed, to shed themselves of participation in this action, further, the Plaintiff will experience inconvenience, and expense if the actions are not consolidated, of having to file separate Actions against the same parties, and Served them essentially the same paperwork all over again.

74.

In Repap New Brunswick Inc v Pictou, 1996 CanLII 4890 (NB QB)

Justice Thomas W. Riordon, does state the position that there would be very little difference in the commencement of new proceedings or in adding these parties to that proceedings, therefore he does grant joinder of certain parties at beginning at page 2 through to page 5 as follows: The Plaintiff points out that a separate action could be commenced against this group and against any of the named persons and of course that is the case. Legal action may be [Page 3] instituted by any person against another party and of course that doesn't mean that it's going to be a successful action or that the

21

Plaintiff may succeed in its claim. Any party who has an action commenced against it of course may apply to the Court in due course that the action and claim be dismissed in that it is either frivolous or without merit. There are provisions in the Rules of Court to make such an application. I do not believe that the addition of these parties will complicate or delay the trial of these matters, nor am I satisfied that it would cause any prejudice to the named individuals especially when one considers the fact that the Plaintiff has every right to commence an action if it chooses to do so and I see very little difference in the commencement of new proceedings or in adding these parties to the present proceedings. The same issues are to be addressed. The request to add the responding parties, Charles Murray Nicholas, Friends of Christmas Mountains, Peggy Frith, Amelia Clark, Matthew Jonah, Mark Purdon, Leslie Homnett, Marnay Issac, Jennifer Waldschutz and the Conservation Council of New Brunswick is granted and these persons will become Party Defendants to the present proceedings. In the event that the Plaintiff does not establish its claim against any of the Defendants, it of course runs the [Page 4] risk of paying the costs of the parties involved in accordance with the discretion of the Court. If the action is without merit, the Court can consider any request for dismissal and costs of any party who is in such a position can be considered.

27.10 Amendment of Pleadings 75. The Plaintiff Andr Murray relies on Rules of Court governing Amendment of Pleadings, Rule 27.10, 1 and 2 (a), (b) and or (c). 27.10 Amendment of Pleadings General Power of Court (1) Unless prejudice will result which cannot be compensated for by costs or an adjournment, the court may, at any stage of an action, grant

22

leave to amend any pleading on such terms as may be just and all such amendments shall be made which are necessary for the purpose of determining the real questions in issue. When Amendments May Be Made (2) A party may amend his pleading (a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action, (b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the persons consent, or (c) with leave of the court. 76. Pursuant to Rules of Court Rules 27.10(1), this Court may grant leave

to amend the Plaintiffs Notice of Action, on such terms as may be just and all such amendments shall be made which are necessary for the purpose of determining the real questions in issue. Such amendments may be made at any stage of an Action, and specifically in this case, we are in the very beginning of the Action, remember, the Amended Notice of Action was filed only 6 days after the Defendants were served the Original Action. To overcome this permissive Rule, the Defendants would have to provide evidence that prejudice will result which cannot be compensated for by costs or an adjournment. In this case they have not. I will remind the Court that the Defendants filed no affidavit material whatsoever regarding this Motion.

77.

When is the close of pleadings? Rules of Court, Rules 27.05, regarding 27.05 Close of Pleadings Pleadings are deemed to be closed (a) upon the noting of the defendant in default, (b) upon the service of the Reply, or (c) when the time for service of the reply has expired.

the close of pleadings is provided below:

23

Rule 27.04(3) (3) A Reply shall be filed and served within 10 days after service of the Statement of Defence 78. Plaintiff Andre Murray, did file the Amended Notice of Action Dated

September 8, 2011, before the close of pleadings, and served same upon THE CITY OF FREDERICTON the next day (September 9, 2011). Calculating, the close of pleading would provide the Defendant (considering, Notice of Intent to Defend 10 days, Statement of Defense 20 days, time for filing the reply 10 days), with 40 days, before the close of pleadings. Plaintiff Andre Murray did serve THE CITY OF FREDERICTON, technically 33 days before the close of pleadings. All other Defendants were served the Amended Notice of Action the same time as the Original Notice of action.

79.

Pursuant to Rules of Court, Rules 27.10(2)(a) Plaintiff Andre Murray

may amend his pleading without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action. This would mean that those Amendments which the Plaintiff has made which did not involve adding parties would be allowed according to the Rules, further do not require leave of the Court.

80.

In this matter before the Court, Plaintiff Andre Murray requires leave

only for those portions of the Amended Notice of Action, which include and necessitates the addition, of parties to the action.

81.

Pursuant to Rules of Court Rules 27.10(2)(b) Plaintiff Andre Murray

may amend his Notice of Action on filing the consent of all parties and, where a person is to be added or substituted as a party, the persons consent. Plaintiff

24

Andre Murray did request of all Defendants their consent to be added as parties. THE CITY OF FREDERICTON did provide this written consent, and through the rule of agency all members of FREDERICTON POLICE FORCE are deemed to have consented as well. Since Rules 27.10(2)(b) requires the consent of all parties, and as a consequence of Defendant Neil Rodgers and Defendant Trina Rodgers refusing to provide this consent, the threshold is not met.

82.

Pursuant to Rules of Court Rules 27.10(2)(c) Plaintiff Andre Murray

may amend his Notice of Action with Statement of Claim Attached with leave of this Court. This Motion provides the Honorable Court such an opportunity. 83. In Juniberry Corp. v. Triathlon Leasing Inc., 1995 CanLII 6225 (NB

CA) Justice WALLACE S. TURNBULL, J.A. did state the Rules of Court are the vehicle that enables rights to be delivered and claims to be enforced, the Court should interpret and apply the rules to ensure, to the greatest extent possible, that there is a determination of the substantive law, from page 6 to page 8 as follows: Did the trial judge err in refusing to grant the amending motion proposed by Juniberry and Mr. Hong? Rule 27.10 begins with a threshold test which a court must consider before [Page 7] deciding whether to permit an amendment to the pleadings. That is, would the granting of the amendment result in prejudice which cannot be compensated for by costs or an adjournment? If no such prejudice would result, then the Court may grant the motion, and if so, on such terms "which are necessary for the purpose of determining the real questions in issue". Rule 2.02 further directs: ... all necessary amendments shall be permitted ... at any stage in the proceeding, upon proper terms, to secure the

25

just determination of the matters in dispute between the parties. These are rules of procedure as opposed to the substantive law which defines substantial legal rights and claims. The rules are the vehicle that enables rights to be delivered and claims to be enforced. As such, a Court should interpret and apply the rules to ensure, to the greatest extent possible, that there is a determination of the substantive law unless the application of the rules would result in a serious prejudice or injustice. Accordingly, amendments to pleadings are generally allowed. That is the reason for the use of such phrases as "determining the real questions in dispute" in Rule 27.10 and "just determination of the matters in dispute" in Rule 2.02. As a general principle, therefore, the rules of procedure should not be used to prevent the delivery of rights; nor should they be used to preclude the enforcement of claims which are derived from the substantive law. While leave to amend pleadings is a discretionary right, the exercise of that discretion is subject to review on appeal. See Moore v. State Farm Fire & Casualty Company (1982), 42 N.B.R. (2d) 667 (C.A.). [Page 8] In reviewing a trial judge's refusal to permit an amendment to pleadings, Stratton, J.A., as he then was, in Moore, approved an appeal court's review of the following questions to determine if an injustice resulted from the trial judge's decision. Did the proposed amendment raise a new issue or was it a "proper and permissable" extension of a claim by the party seeking the amendment? Could it be fairly argued that if the requested amendment were allowed it would (to which I would add, or it should) have taken the other party by surprise? Did the amendment deprive the other party of "any defence [or claim] which would have otherwise been available to it," or result in prejudice, "which cannot be compensated for by costs or an adjournment"?

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84.

Plaintiff Andre Murray does ask this Court, as similarly asked in

Juniberry Corp. v. Triathlon Leasing Inc., 1995, above, did the amendment deprive the Defendants of "any defence [or claim] which would have otherwise been available to it," or result in prejudice, "which cannot be compensated for by costs or an adjournment"? The answer to that is simple, No. Please note the Defendants did not file and any affidavit material is reply to this motion, therefore they have not presented this Court with evidence for consideration. Accordingly, amendments to pleadings are generally allowed and in this case they should be alowed. That is the reason for the use of such phrases as "determining the real questions in dispute" in Rule 27.10 and "just determination of the matters in dispute" in Rule 2.02.

85.

In Michaud v. Robertson, 1992 CanLII 4709 (NB CA) Stratton,

CHIEF JUSTICE OF NEW BRUNSWICK, did provide his view of the interpretation to be given to Rules 1.03(2), 2.02 and 27.10 of the Rules of Court, form page 1 through to page 4 as follows: I have had the opportunity of reading in draft the reasons for decision of my colleague, Mr. Justice Hoyt. While I agree with him that Mr. Michaud's Statement of Claim does not properly set out a cause of action against Evancic Perrault Robertson, ("E.P.R."), it is my opinion this is a case in which Mr. Michaud should have been given leave to amend his Statement of Claim. At issue here is the interpretation to be given to Rules 1.03(2), 2.02 and 27.10 of the Rules of Court. The relevant portions of these Rules provide that: 1.03(2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 2.02 A procedural error, including failure to comply with these rules . . . shall be treated as an irregularity and shall

27

not render the proceedings a nullity, and all necessary amendments shall be permitted . . . at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. 27.10(1) Unless prejudice will result which cannot be compensated for by costs or an adjournment, the court may, at any stage of an action, grant leave to amend any pleading on such terms as may be just and all such amendments shall be made which are necessary for the purpose of determining the real questions in issue. As I read the quoted Rules, they are drafted in very broad terms. They give a judge wide powers to grant leave to amend pleadings. They also emphasize the importance of construing the Rules to secure the just determination of the [Page 2] real matters in dispute between the parties in the least expensive and most expeditious manner. Moreover, Rule 27.10(1) is very specific. It in effect directs that leave to amend should be granted where an amendment is required to determine the real questions in issue between the parties except where to do so would result in prejudice to another party which cannot be compensated for by costs or an adjournment or the imposition of terms. The question of amendments to pleadings was considered by this Court in Pic Realty Canada Limited v. Disher (1982), 42 N.B.R. (2d) 41. In that case it was pointed out that the discretionary power to grant amendments was to be exercised so as to do what justice may require in the particular case. It was also noted, however, that appellate courts will not ordinarily interfere with a trial judge's exercise of discretion except on a point of law or unless it can be shown on other grounds that an injustice will result. It now seems well established that in matters in which a judge has a discretion, and has exercised it, a Court of Appeal will not interfere except upon very substantial grounds. Where,

28

however, the discretion has been exercised on a wrong principle, an appellate tribunal may reverse it on that ground. Rule 2.02 which provides that a procedural error, including the failure to comply with the Rules of Court, shall be treated as an irregularity and all necessary amendments shall be made, upon proper terms, to secure the just determination of the real matters in dispute between the parties, is the rule which governs the exercise of judicial discretion in cases such as this present one. In the circumstances of this case, it is my opinion that the refusal by the Judge of first instance to grant Mr. Michaud leave to amend his Statement of Claim was contrary to the stated purpose and intent of the Rules of Court which authorize a judge to permit all amendments necessary "to secure the just determination of the matters in dispute between the parties". Nor am I persuaded that the granting of leave to amend will result in any injustice to the defendant E.P.R. Rather, it is my respectful view that the refusal by the Judge to grant leave to amend resulted from the application of a wrong principle of law. It did not accomplish what justice required in the circumstances. Indeed, in my opinion, the refusal to grant leave to amend could only result in delaying the proceedings, the incurring of the additional costs involved in the institution of a new action against E.P.R. and obtaining an order for consolidation. In short, in my opinion, the refusal to grant leave to amend did not result in securing the just, [Page 4] least expensive and most expeditious determination of the proceedings on the merits as envisioned by Rule 1.03(2). A refusal by this Court to grant Plaintiff Andre Murray leave to amend

86.

his STATEMENT OF CLAIM, will be contrary to the stated purpose and intent of the Rules of Court which authorize a judge to permit all amendments necessary "to secure the just determination of the matters in dispute between the parties".

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87.

Judicature Act, RSNB 1973, c J-2, section 26 (9) provides as follows: 26(9) that as far as possible all matters so in controversy between the said parties respectively, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided."

88.

Granting of leave to amend will not result in any injustice to the

Defendants, further, refusal by this Court to grant leave to amend will only result from the application of a wrong principle of law, and will not accomplish what justice required in these circumstances. Refusal to grant leave to amend, would only result in delaying the proceedings, the incurring of the additional costs involved in the institution of a new Action against the subject Defendants, multiplicity of legal proceedings and likely require a new Order at some future date for Joinder of Claims and Parties. The refusal to grant leave to amend would not result in securing the just, least expensive and most expeditious determination of the proceedings on the merits as envisioned by Rule 1.03(2). [33] It is now well-settled that statutory interpretation cannot be founded on the wording of the legislation alone and that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (see Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2 (QL), at para 21). Rule 1.03(1) prescribes that, unless a contrary intention appears, the Interpretation Act, R.S.N.B. 1973, c. I-13 applies to the Rules of Court. Section 17 of the Interpretation Act provides as follows:

17 Every Act and regulation and every provision thereof shall be deemed remedial,

30

and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Act, regulation or provision. 89. As stated by Chief Justice Drapeau above the words of an Act are to

be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament Rule 1.03(1) prescribes that, unless a contrary intention appears, Section 17 the Interpretation Act, applies to the Rules of Court, therefore Rule 27.10 shall be deemed remedial, and shall receive such fair, large and liberal construction and interpretation as best ensures the attainment of the object of the Rule, such as granting the Plaintiffs request, for the Court to grant leave to Amendment of Pleadings. Extend Rule 16.08 (1) 90. Plaintiff Andre Murray does request of this Court to extend Rule 16.08

(1) the time required for service of the Original NOTICE OF ACTION and STATEMENT OF CLAIM ATTACHED (FORM 16A) Dated March 04, 2011 and AMENDED NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A) Court File Date stamped September 8, 2011 pursuant to Rule 2.02, and 3.02 of the Rules of Court; 91. Rules of Court Rule 16.08, 2.02 and 3.02 are reproduced below: 16.08 Time for Service (1) Where an action is commenced by issuing a Notice of Action with Statement of Claim Attached, it shall be served within 6 months thereafter. 2.02 Effect of Non-Compliance A procedural error, including failure to comply with

31

these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. In particular, the court shall not set aside any proceeding because it ought to have been commenced by an originating process other than the one employed. 3.02 Extension or Abridgment (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules. (2) A motion for extension of time may be made either before or after the expiration of the time prescribed. 92. Plaintiff Andre Murray does request of the Court, that the time for

service of the Amended Notice of Action, Rules of Court Rule 16.08 Time for Service be extended, so as to encompass the time that was required to serve all the Parties individually. This Court clearly has the tools to provide the relief sought through Rule 3.02, the Court may, extend the time prescribed by these rules.

93.

In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A.

LaVIGNE, did state regarding the obligation of the Court, which is to see that justice is done, the Court may use the discretionary powers granted to it in Rule 2.02 and 3.02 in order to secure the just determination of the matters in dispute between the parties, from paragraph 21 through to and including paragraph 27 as follows. 21. The test to be applied when considering such an application is that of the substantial injustice test which was put forth by Mr. Justice

32

Ayles in the Court of Appeal decision of Bridges v. Daeres reflex, (1986), 64 N.B.R. (2d) 412, which test was also accepted as being correct by our Court of appeal in the more recent case of Hill v. Mattatall, [1996] N.B.J. No. 193. 22. In Hill, supra, Chief Justice Hoyt as he then was, writing for the majority stated as follows at paragraphs 8, 9, 10 and 12: 8 A review of the New Brunswick cases reveals that New Brunswick courts do not take as strict a view of time limits as do, for example, the Ontario courts. In Ontario, there is a presumption of prejudice in favour of the responding party that the late party must overcome. In New Brunswick, such prejudice is taken into account, but is not the determinative factor. 9 In Bridges v. Daeres reflex, (1987), 83 N.B.R. (2d) 331, this Court upheld a judge's refusal to remedy a ten year delay. Ayles, J.A. formulated the test to be applied when considering such applications. He said at p. 337: The test as set out above is a double one: the failure to renew must do an obvious and substantial injustice to Mrs. Bridges while at the same time its renewal must not work any substantial injustice to Mr. Daeres as to his defence. ... 10 As Jones, J. noted in Spencer v. King and Mockler, Allen & Dixon reflex, (1984), 59 N.B.R. (2d) 162, the use of the word "just" in Rule 3.02 renders the remarks of Culliton, C.J. in Simpson v. Saskatchewan Government Insurance Office (1967), 65 D.L.R. (2d) 324

33

relevant to Rule 3.02 applications. Culliton, C.J. said at p. 333: In an application to renew a writ of summons the basic question which faces the Court is, what is necessary to see that justice is done? That question must be answered after a careful study and review of all the circumstances. If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. This should be done even if the only reason for non-service is the negligence, inattention or inaction of the plaintiff's solicitors and notwithstanding that a limitation defence may have accrued if a new writ was to be issued. If the non-service of the writ was due to the personal actions of the plaintiff, that, of course, would be a fact to be considered by the Court. Each case should be considered in the light of its own peculiar circumstances and the Court, in the exercise of its judicial discretion, should be determined to see that justice is done. In Canada v. Pelletier reflex, (1984), 58 N.B.R. (2d) 184, Daigle, J., as he then was, considering a three year delay, applied Simpson and allowed the application. Landry, J. in Jardine v. Kent General Insurance Corp. et al. reflex, (1988), 90 N.B.R. (2d) 213, applied a "severe prejudice" test in declining to remedy a four year delay. I can see no difference between "severe prejudice" and "substantial injustice". More recently, McLellan, J. in Gifford v. Phalen Estate,

34

[1995] N.B.J. No. 586 (QL), using the "substantial injustice" test, allowed an application to extend the time to serve a Notice of Action and Statement of Claim after a five year delay from the issuance of the Notice of Action. ... 12 In my view, the Judge's use of the "substantial injustice" test articulated in Bridges was correct. Nor am I able to conclude that he was wrong in determining that the appellants would suffer no substantial injustice. The length of delay, of course, is a factor to consider, but not the only factor. Undoubtedly, the longer the delay, the more prominent it becomes in assessing the various factors that could cause a substantial injustice. A solicitor's delay, unless the delay has an oblique motive, for example, to gain some tactical advantage, is a neutral factor in assessing the injustice each party would suffer. 23. A motion for leave to appeal Hill was dismissed by the Supreme Court of Canada on January 9th, 1997. (see reflex, (1997), 183 N.B.R. (2d) 320). 24. I return to the facts of this case. The insurance company was put on notice as early as December 11, 2000. They were aware that the Plaintiff had retained legal counsel to pursue the claim. They did make an investigation and an informed decision was made to close their file on April 10, 2001 after denial of liability. The two-year limitation period had not even expired by then. There is no onus on a plaintiff to do anything before the two years are up and he has a further 6 months to serve the documents. 25. This is not a case where the Defendants insurance companies were unable to obtain evidence or prevented from making an investigation in a timely manner. They were put on notice early on and they did have a chance to make an investigation. 26. There is no evidence of there being any witnesses to the accident other than the parties themselves.

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27. The delay in this case is quite short when compared to some of the delays in the cases mentioned in the Hill, supra, and Savoie, infra, decisions. The Plaintiff had until to August 1st, 2002 to serve the documents. The motion for an extension of time was filed in October 2003, that is fifteen months later. 94. It would be a substantial injustice to the Plaintiff to not have the merits

of the claim heard because a minor technicality, of a few days difference in serving times. The delay in this subject case before the Court is quite short when compared to some of the delays in the cases above mentioned. There would be no injustice to have the claims against the Defendants heard on its merits, furthermore, there is the obligation of the Court, which is to see that justice is done, the Court may use the discretionary powers granted to it in Rule 2.02 and 3.02 in order to secure the just determination of the matters in dispute between the parties. Equity 95. Judicature Act, RSNB 1973, c J-2 section 26(6) and 26, regards equity 26(6) The Court and every judge thereof shall recognize and take notice of all equitable estates, titles and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Supreme Court in Equity would have recognized and taken notice of the same in any suit or proceeding duly instituted therein before the commencement of The Judicature Act, 1909. 26(8) Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the Court and every judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations and liabilities existing by the common law or created by any statute, in the same manner as the same would have been recognized and given effect to by the Supreme Court,

as follows:

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either at law or in equity, if The Judicature Act, 1909 had not been enacted. 96. The Court may at any time dispense with compliance with any rule,

unless the rule expressly or impliedly provides otherwise.

97.

A procedural error, including failure to comply with these rules or with

the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties.

98.

The Court may at any time dispense with compliance with any rule,

unless the rule expressly or impliedly provides otherwise when the balance of convenience favors the granting of the relief sought.

99.

Pursuant to Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court

the Court, may, extend time required for filing and service of a Court document;

100.

Maxim - Neminem laedit qui jure suo utitur. A person who exercises

his own rights injures no one.

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101.

Maxim - Bonum judex secundum aequum et bonum judicat, et

aequitatem stricto juri praefert. A good judge decides according to justice and right, and prefers equity to strict law. Co. Litt. 24.

102.

Maxim - In all affairs, and principally in those which concern the

administration of justice, the rules of equity ought to be followed.

103.

The legal website duhaime.org provides the following insight into the

principles of equity: at (http://www.duhaime.org/LegalDictionary/E/Equity.aspx) Equity Definition: A branch of English law which developed hundreds of years ago when litigants would go to the King and complain of harsh or inflexible rules of common law which prevented "justice" from prevailing. In the 1870s, England and its colonies merged the courts but not the doctrines (in statutes called "judicature"). Although under the umbrella of a unified judiciary, where the principles conflicted, equity was stated to have precedence over the common law. Ontario's initiative is a good sample, now known as the Courts of Justice Act (1990 RSO Chapter C-43; v. 2007), where at 96:

It gives equity rank over the common law ("where a rule of equity conflicts with a rule of the common law, the rule of equity prevails"); Merges the Courts by requiring that there shall no longer be a separate court for equity ("Courts shall administer concurrently all rules of equity and the common law"); and Only federally-appointed judge, also known as "superior-level courts", may consider equity claims or grant equity relief ("only the Court of Appeal and the Superior Court of Justice, exclusive

38

of the Small Claims Court, may grant equitable relief, unless otherwise provided"). A whole set of equity law principles were developed based on the predominant fairness, reason and good faith characteristics of equity as reflected in some of its maxims: equity will not suffer a wrong to be without a remedy or he who comes to equity must come with clean hands. 104. The New Brunswick Judicature Act, RSNB 1973, c J-2, also provides

for equity law principles based on the predominant principles of fairness, reason and good faith which are characteristics of equity, in the following section 26(8), 32 and 39 (emphasis added): 26(8) Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the Court and every judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations and liabilities existing by the common law or created by any statute, in the same manner as the same would have been recognized and given effect to by the Supreme Court, either at law or in equity, if The Judicature Act, 1909 had not been enacted. 32 Stipulations in contracts as to time or otherwise, which would not before the commencement of The Judicature Act, 1909 have been deemed in a Court of Equity to be or to have become of the essence of such contracts, shall receive in the Court the same construction and effect as they would heretofore have received in Equity. 39 Generally, in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.

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105.

Rule 1.03(2) of the Rules of Court direct the Court that these rules

shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits (to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

106.

Rule 2.01 of the Rules of Court provides the Court with the express

tool to dispense with compliance with any rule (the rules of equity shall prevail).

107.

Rule 2.02 of the Rules of Court compels Courts to overlook

procedural errors and to take appropriate measures to secure the just determination of the matters in dispute between the parties ( fairness, reason and good faith)

108.

Rule 2.04 of the Rules of Court direct the Court, that in any matter of

procedure not provided for by the Rules of Court or by an Act, the court may, on motion, give directions.(to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

109.

Rule 3.01 of the Rules of Court direct the Court on such terms as may

be just, to extend the time prescribed by an order or judgment or by the Rules of Court.(to safe guard against harsh or inflexible interpretation of the rules of Court or Common Law which may prevent "justice" from prevailing).

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110.

As a self Represented individual, one may makes mistakes and file and

or serve documents to late, but the Rules of Court and equity which is in essence the fairness that should be present in all Courts, when the parties do want to pursue remedy. 3. 111. Associated Maxims are as follows:

I. Lex aequitate gaudet; appetit perfectum; est norma recti. The law delights in equity; it grasps at perfeccion; it is a rule of right.

II. Equitas sequitur legem. Equity follows the law.

III. Lex respicit aequiiatem. The law regards equity.

IV. Ratio in jure aequitas inteera. Reason in law is impartial equity.

V. Nulli vendemus, nulli negabimus, aut differemus rectum vel justitian. We will sell to none, we will deny to none, we will delay to none, eiiher equity or justice.

VI. Judex ante oculos aequitatem semmer habere debet. A judge ought always to have equity beeore his eyes. 4. Rule 1.03, 2.01. 2.02, 2.04 and 3.02 112. Maxim - Justitia nemine neganda est. Justice is not to be denied.

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113.

Maxim - Lex non deficit in justitia exibenda. The law does not fail in

showing justice.

114.

The Rules of Court are that which enables rights to be delivered and

claims to be enforced. As such, a Court should interpret and apply the Rules of court to ensure, to the greatest extent possible, that there is a determination of the substantive matters in dispute between the Parties, unless the application of the Rules of Court would result in a serious prejudice or injustice.

115.

Rule 1.03, 2.01, 2.02, 2.04 and 3.02 of the Rules of Court are

reproduced as follows: 1.03 Interpretation (1) Except where a contrary intention appears, the Interpretation Act and the interpretation section of the Judicature Act apply to these rules. (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. (3) The arrangement of these rules and their title headings are primarily intended for convenience, but may be used to assist in their interpretation. 2.01 The Court Dispensing with Compliance The court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 2.02 Effect of Non-Compliance A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. In particular, the court shall not set aside any proceeding because it ought

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to have been commenced by an originating process other than the one employed. 2.04 Where No Procedure Provided In any matter of procedure not provided for by these rules or by an Act the court may, on motion, give directions. 3.02 Extension or Abridgment (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules. (2) A motion for extension of time may be made either before or after the expiration of the time prescribed. (3) Where the time prescribed by these rules relates to an appeal, only a judge of the Court of Appeal may make an order under paragraph (1). (4) Any time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by consent. 116. Regarding Rules Rule 2.02, In Juniberry Corp. v. Triathlon Leasing

Inc., 1995 CanLII 6225 (NB C.A.) Justice TURNBULL, J.A. stated the following regarding the application of Rule 2.01 beginning at page 7 through to page 8 as follows: Rule 2.02 further directs: ... all necessary amendments shall be permitted ... at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. These are rules of procedure as opposed to the substantive law which defines substantial legal rights and claims. The rules are the vehicle that enables rights to be delivered and claims to be enforced. As such, a Court should interpret and apply the rules to ensure, to the greatest extent possible, that there is a determination of the substantive law unless the application of the rules would result in a serious prejudice or

43

injustice. Accordingly, amendments to pleadings are generally allowed. That is the reason for the use of such phrases as "determining the real questions in dispute" in Rule 27.10 and "just determination of the matters in dispute" in Rule 2.02. As a general principle, therefore, the rules of procedure should not be used to prevent the delivery of rights; nor should they be used to preclude the enforcement of claims which are derived from the substantive law. 117. In Western Surety Co. v. National Bank of Canada, 2001 NBCA 15

(CanLII) J. ERNEST DRAPEAU, J.A.. stated the following regarding application of Rule 2.02. May it please the Honorable Court the found at paragraph 91 as follows: [91] Rule 2.02 of the Rules of Court enjoins courts to overlook procedural errors and to take appropriate measures to secure the just determination of the matters in dispute between the parties. 118. The word enjoins was of particular note to the Applicant, the

definition is provided below from Black's Law Dictionary (8th ed. 2004) , Page 1608 describes ENJOIN as follows: enjoin, vb. - 2. To prescribe, mandate, or strongly encourage 119. Furthermore in LeBlanc v. Bastarache, 2005 NBQB 142 (CanLII)

RIDEOUT, J. stated regarding applying Rule Rules 1.03(2); 2.02; 3.02(1) and (2) REFERENCE: (please see paragraph 11 to 19 that Honorable Court must consider what is necessary to see that justice is done? as follows:

[15] In particular, he relied on the case of Simpson v. Saskatchewan Government Insurance Office, 65 D.L.R.(2d) 328, and cited the following passage from page 333 of the decision:

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6 "In an application to renew a writ of summons the basic question which faces the court is, what is necessary to see that justice is done? That question must be answered after a careful study and review of all the circumstances. If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. This should be done even if the only reason for non-service is the negligence, inattention or inaction of the plaintiff's solicitors and notwithstanding that a limitation defence may have accrued if a new writ was to be issued. If the non-service of the writ was due to the personal actions of the plaintiff, that, of course, would be a fact to be considered by the court. Each case should be considered in the light of its own peculiar circumstances and the court, in the exercise of its judicial discretion, should be determined to see that justice is done." 7The rule which emerges from these cases unequivocally recognizes that the court's main concern must be to see that justice is done and to make certain that the extension of time for service does not prejudice or work any injustice to either of the parties... [19] I am satisfied that the delay in service was caused by the lawyer which in the circumstances should be treated as a neutral event. I am also satisfied that the Defendants insurer has not and will not suffer any prejudice if the Plaintiffs motion is granted. However, prejudice will occur to the Plaintiff if the time period for service is not extended. Therefore justice will be done if the time period for service is extended. 120. In Agnew v. Knowlton, 2003 NBQB 454 (CanLII) Justice LUCIE A.

LaVIGNE stated the following regarding granting an extension of time.; REFERENCE: (Please see at paragraph 16 19),: 16. Rule 3.02 states:

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3.02 (1) Subject to paragraphs (3) and (4), the court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these Rules. (2) A motion for extension of time may be made either before or after the expiration of the time prescribed. ... 17. Rule 2.02 clearly stipulates that failure to comply with the Rules must be treated as an "irregularity", which can be remedied to secure the just determination of the matters in dispute. 18. Rule 1.03(2) provides that this Court should apply the Rules so as to secure a just, least expensive and most expeditious determination of every proceeding on its merits. 19. The main concern in cases such as this is to see that justice is done and to make certain that any extension of time for service does not prejudice or work injustice to the parties involved. 121. In K.C. v. New Brunswick (Health and Community Services), 1998

CanLII 17954 (NB CA) ( http://canlii.ca/t/25rlz) Chief Justice J. ERNEST DRAPEAU, J.A., stated the following regarding Rule 3.02(1) as follows: [Page 3] Rule 3.02 (1) permits the court to extend the time prescribed by an order, judgment or the rules. Thus, where the statute does not fix a deadline the court may extend the time under the authority of Rule 3.02(1). 122. In Michaud v. Robertson, 2003 NBCA 79 (CanLII) The Honorable

Chief Justice J. Ernest Drapeau regarding whether the appellant had unduly delayed preparation and perfection of his appeal, REFERENCE: (staring at page 1 through to and including page 3) stated as follows:

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This is a motion by the respondents, other than Par Syndication Group Inc., for an order dismissing the appeal pursuant to Rule 62.23(1)(c) of the Rules of Court on the ground that the appellant has unduly delayed preparation and perfection of his appeal. Dismissal of an appeal for failure to comply with Rule 62.15 is only appropriate "where it is shown that the interests of justice would be illserved by a less drastic measure." See New Brunswick (Minister of Family and Community Services) v. A.N., [2002] N.B.J. No. 373 (C.A.) -3(Q.L.). The same approach is warranted when Rule 62.23(1)(c) is brought into play. In our view, the interests of justice would be better served by an order under Rule 62.24(1)(a)(ii) directing the appellant to perfect his appeal within a specified time. Disposition The motion for an order under Rule 62.23(1)(c) is dismissed. The appellant is directed to perfect his appeal on or before December 19, 2003, failing which it will stand dismissed. The unique circumstances of the present case warrant an order of costs against the moving parties in favour of the self-represented appellant. We fix those costs at $750. There will be no order of costs in favor of Par Syndication Group Inc. 123. Plaintiff Andre Murray does request that this Court provide the

equitable remedy of granting the relief sought by the Plaintiff.

Cost Orders in favor of self-represented litigants 124. Plaintiff offers that after due consideration, this Honorable Court may

conclude similarly as in McNichol v. Co-operators General Insurance

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Company, 2006, that the case before this Honorable Court is one that calls for the exercise of the Honorable Courts discretion under Rule 59.01 in a manner favorable to the self-represented Plaintiff.

125.

For convenience of this Honorable Court reproduced below Rule

59.01, of the Rules of Court as follows: 59.01 Authority of the Court (1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid. 126. As similarly stated n McNichol v. Co-operators General Insurance

Company, 2006, supra, this Honorable Court may make the similar observations and consider before awarding costs with regard to the blatantly frivolous, irresponsible and callous behavior, of Defendants in this matter.

127.

Following the lead of the above Court in McNichol v. Co-operators

General Insurance Company, 2006, supra, this Honorable Court may find it appropriate to Order the Defendants to pay costs throughout, which may be similarly fixed at $5,000, in addition to all reasonable disbursements.

128.

As similarly stated in Fong, et al v. Chan, et al, 1999, Costs should

only be awarded to those lay litigants who can demonstrate that they devoted time and effort to work ordinarily done by a lawyer retained for litigation, and that as a result, self represented litigants incurred an opportunity cost by foregoing remunerative activity such as the self represented Plaintiff before this Court. It is abundantly clear that the self represented Plaintiff in this matter devoted copious amounts of time over many months of his life and exhaustive effort to present interesting and thought-provoking legal argument ordinarily

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expected of a lawyer, further is evidenced by the quality and voluminous material presented for consideration to this Honorable Court.

129.

As is well established by the Courts lay litigants may recover costs,

including counsel fees; this is a clear trend of both the common law and the statutory law, to allow for recovery of costs by self-represented litigants.

130.

As stated in Fong, et al v. Chan, et al, 1999, as a matter of principle, it

seems difficult to justify a categorical rule denying recovery of costs by selfrepresented litigants.

131.

As stated above in Fong, et al v. Chan, et al, 1999, paragraph 22

modern cost rules are designed to foster three fundamental purposes: (1) to indemnify successful litigants for the cost of litigation; (2) to encourage settlements; and (3) to discourage and sanction inappropriate behaviour by litigants. Remaining consistent with the above here within paragraph trial judges may use their discretion to award costs to self-represented litigants. 132. Self-represented lawyers (members of Law Society) are entitled to

indemnity on the time is money or opportunity cost rationale and it is difficult to appreciate why the opportunity cost rationale should not be applicable to self-represented litigants, such as the Plaintiff in this matter, before this Honorable Court.

133.

Self-represented litigants must possess skills for which they

customarily are remunerated on their regular work week basis, and if the law is prepared to compensate lawyers for loss of time when devoting their efforts to

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their own cause, the same entitlement should extend to self-represented lay litigants who are able to demonstrate the same loss.

134.

Costs may be awarded to those lay litigants who can demonstrate

devoted time and effort to do work, which ordinarily would have been done by a lawyer retained for same litigation, further, it is consistent that lay litigants incurred an opportunity cost by foregoing their usual remunerative activity; awarding of additional Costs are a useful tool of the Court to encourage settlements and or to discourage or sanction inappropriate behavior, as the case may be.

135.

Having considered the here within above provided arguments for cost,

this Honorable Court may find it appropriate to Order the Defendants to pay costs throughout, in addition to all reasonable disbursements.

ALL OF THIS respectfully submitted this 17th day of January, 2012. ____________________ Andre Murray

Part IV A concise statement of the order sought from the Court, 136. pursuant to Section 21 (a), (b) and (c) Limitation of Actions Act, SNB 2009, c L-8.5, regarding added Claims to proceedings for a incident occurring May 07, 2008 therefore allowing new Claims be added to proceedings; 137. pursuant to Section 21 (a), (b) and (c) Limitation of Actions Act, SNB 2009, c L-8.5,, regarding added Claims to proceedings, that TRINA RODGERS, NEIL RODGERS, CONSTABLE PATRICK SMALL,

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CONSTABLE DEBBIE STAFFORD, CONSTABLE MICHAEL SAUNDERS, and JOHN DOE 2 be added as Defendants; 138. TRINA RODGERS, NEIL RODGERS, CONSTABLE PATRICK SMALL, CONSTABLE DEBBIE STAFFORD, CONSTABLE MICHAEL SAUNDERS, and JOHN DOE 2 be added as Defendants; pursuant to the Rules of Court governing when and which Persons who may be joined as Defendants, Rules of Court 5.01 (1) and (2), Rules of Court 5.02 (2), Rules of Court 5.03 (1) (a), (b) and (c) further, Rules of Court 5.03 (2) (a), (b) (c), (d) and (e) ; 139. that this Court grants Leave to Amend the NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED FORM 16A DATED at Fredericton N.B., the 4th day of March, 2011 and AMENDED at Fredericton N.B., the 8th day of September, 2011; pursuant to the Rules of Court governing Amendment of Pleadings, Rule 27.10, 1 and 2 (a), (b) and or (c) ; 140. Multiple Defendants or Respondents. that TRINA RODGERS, NEIL RODGERS, CONSTABLE PATRICK SMALL, CONSTABLE DEBBIE STAFFORD, CONSTABLE MICHAEL SAUNDERS, and JOHN DOE 2 be added as Defendants pursuant to the Rules of Court Rule 5.02, 2 and 3, Required Joined of Necessary Parties; Rule 5.03 2 (a), (b), (c), (d), (e),; 141. the Court extend Rule 16.08 (1) the time required for service of the Original NOTICE OF ACTION and STATEMENT OF CLAIM ATTACHED (FORM 16A) Dated March 04, 2011 and AMENDED NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A) Court File Date stamped September 8, 2011 pursuant to Rule 2.02, 2.03 and 3.02 of the Rules of Court; 142. the Court extend the time required for service of the within Notice of Motion pursuant to Rule 2.02, 2.03 and 3.02 of the Rules of Court; 143. 144. the Defendants pay cost of the within Motion; such further and other relief that this Honorable Court may appear just;

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