Oral presentation Prepared for Hearing of Defendants three filed Motions opposing the Plaintiff Andre Murrays Action

1. Defendants have relied upon the following Rules of Court in their various filed Notice of Motion 1.03(2), 3.02, 22.04(3), 23.01, 23.02, 27.06, 27.09, 27.10, 37, 39 and Rule 59 of the Rules of Court 2. Plaintiff does claim that 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. 3. Plaintiff does claim that as a general principle, 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. 4. The Claim filed by Plaintiff Andre Murray is in fact within the time limit

extensions and exception as prescribed by Limitation of Actions Act, therefore the claims of Plaintiff Andre Murray should not be bared by erroneous claims and a misinterpretation of the Act. The Claims by Andr Murray are in fact within limitations periods prescribed by the limitations of actions Act.

5.

The Court should grant leave to amended the claims to compensate for any valid

Drafting deficiencies,

6.

Plaintiffs Claim does disclose a reasonable cause of Action, leave to amend the

claim, should be granted if necessary to overcome some drafting deficiency 7. Rules of Court: Rule 27.10(1) Does provide instruction, which should govern

the Courts actions, that 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. 8. Plaintiff Andre Murray believes that, when the drafters of the Rules of Court did

use the word may, the intention was to express that the Court is must (Black's Law required to) at any stage of an action, grant leave to amend any pleading on such terms as

may be just and all such amendments shall (Black's Law Has a duty to; more broadly, is required to) be made which are necessary for the purpose of determining the real questions in issue.

9.

Pursuant to Rules of Court Rule 27.10(1) It would be up to the Defendants to

provide proof of claim that prejudice will result which cannot be compensated for by costs or an adjournment. 10. Pursuant to Rules of Court Rule 27.10(1) the Court is provided instruction that

all such amendments shall (Has a duty to; more broadly, is required to) be made which are necessary for the purpose of determining the real questions in issue.

11.

Rules of Court Rule 27.10(2)(a) Does allow that a party 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. Those portions of Plaintiff Andre Murrays claims, which do not relate to a addition of a party to the action do not require leave of the Court, because Plaintiff did amend those claims before the close of the pleadings. Because of the substantial drafting changes from the original March 4, 2011 claim, to the Amended Claim dated September 8, 2011, most of the claim was underlined, so as to express the substantial changes to the Claim.

12.

Rules of Court Rule 27.10(2)(b) does allow that a party may amend his pleading

on filing the consent of all parties and, where a person is to be added or substituted as a party, the persons consent. Plaintiff Andre Murray did request consent of all the Parties, only THE CITY OF FREDERICTON and FREDERICTON POLICE FORCE did provide that consent. Through the rule of agency the others members of FREDRICTON POLICE FORCE did provide consent. Defendant Neil Rodgers and Defendant Trina Rodgers did not prove consent.

13.

Rules of Court Rule 27.10(2)(c) Does allow that a party may amend his

pleading, with leave of the court, which does not stipulate that Leave of the court must be provided beforehand. It is erroneous for the Defendants to claim that consent must be 2

provided before a Party may amend his pleadings, especially under these circumstances, such that the subject Amendments were made within 7 days of service of the Original Claim upon THE CITY OF FREDERICTON and FREDERICTON POLICE FORCE, and every other party was served both Original Claim dated March 4, 2011 and the Amended Claim dated September 8, 2011. The Rules of Court allow that the Court may grant leave to amend after, service of the Amended Pleading upon the Parties. Inherent Jurisdiction 14. The doctrine of inherent jurisdiction operates to ensure that there will always be

a court which has the power to vindicate a legal right independent of any statutory grant. The Court which benefits from the inherent jurisdiction is the Court of general jurisdiction, namely, the Provincial Superior Court. The legitimate proposition is that the institutional and constitutional position of Provincial Superior Courts, warrants the grant to them of a residual jurisdiction over all Provincial matters where there is gap in statutory grants of jurisdiction. In this case regarding the evoked Rules of Court and the limitations of Action Act, we do not read or find jurisdictional gaps, the rules of Court and the subject Act, clearly provide the vehicle for this Court to provide the relief sought, therefore there is no application of the inherent jurisdiction in this case. In R. v. Caron, 2011 SCC 5, [2011] 1 SCR 78, the supreme Court did answer that question, in the header of that decision: Indeed, the superior court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. The fundamental purpose (and limit) on judicial intervention is to do only what is essential to avoid a serious injustice. 15. The jurisprudence is clear, while Courts can exercise more power in the control of

their process than is expressly provided by statute, they must generally abide by the dictates of the legislature. To evoke inherent jurisdiction is inappropriate unless, there is a lack of jurisdiction otherwise, which was the express purpose of doctrine of inherent jurisdiction.
Rule 1.03 Interpretation

16.

Black's Law Dictionary (8th edition, 2004), defines Justice as The fair and

proper administration of laws. The fair and proper administration of Justice in New Brunswick, require the Court of Queens Bench Trial Division to apply the Rules of Court, for a determination of every proceeding on its merits. A determination should be in keeping with the general direction contained in Rule 1.03(2) to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 17. 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. Rule 2.01, Rule 2.02 and Rule 3.02 18. The Plaintiff requests that the Court adhere to the principle set out in Rule

1.03(2), which stipulates that the Rules of Court shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. Moreover, Rule 2.01 provides that the Court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise, and over look, minor drafting errors or insignificant departures from the Rules of Court, so that the matter may be heard on its merits.

19.

Plaintiff asserts that as a general principle, the Rules of Court 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. Moreover, a Court should interpret and apply the Rules of Court to ensure, to the greatest extent possible, that there is a determination of the here within above provided substantive law, unless the application of the rules would result in a serious prejudice or injustice. Accordingly, the granting of amendments of pleadings are generally allowed, when requested. That is the reason for the use of such phrases a: determining the real questions in dispute" in Rule 27.10 and "just determination of the matters in dispute" in Rule 2.02.

20.

The 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 requested extension of time for filing, service does not prejudice or work any injustice to either of the parties. Rule 2.02 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. 21. Defendants were informed of the Plaintiffs intention to seek remedy regarding

the May 7, 2008 incident as well as the March 5, 2009 incidents through the various filed complaints and RTIPPA requests, all of which cause the subject Defendants to be contacted, regarding these issues.

Striking Pleadings 22. The object of permitting the striking out of a Statement of Claim is to get rid of

frivolous actions, including actions in which no reasonable cause of action is disclosed on the face of the pleadings. 23. In using a substantive, in depth examination approach of the question as to

whether or not the Plaintiffs statement of claim in this case discloses a cause of action against the Defendant, the Court may hypothetically accept the allegations set out in the statement of claim as having been proven. If after making this assumption a Court finds that it is plain and obvious that the pleadings do not disclose a cause of action the claim may be struck out 24. The common test that governs applications under Rule 23.01 (b), and Rule 22.01

(3) of the Rules of Court has always been and remains a simple one: assuming that the facts

as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim or portions thereof discloses no reasonable cause of action?

25.

Is there is a defect in the statement of claim that can properly be characterized as a

"radical defect"? If it is plain and obvious that the action is certain to fail because it contains some such radical defect, then the relevant portions of the statement of claim may properly be struck out.

26.

To allow such an action to proceed, even although it was certain to fail, would be

to permit the defendant to be subject to scandalous, frivolous or vexatious action, and would therefore, amount to the very kind of abuse of the Court's process, that the Rules of Court Rule specifically Rule 23.01 (b), and Rule 22.01 (3) where meant to prevent.

27.

But, if there were a chance that the Plaintiffs claim might succeed, then the

Plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues of law and fact that might have to be addressed nor the potential for the Defendant to present a strong defence should prevent a Plaintiff from proceeding with his or her case. Provided that the Plaintiff can present a "substantive" case, consequentially, that case should be heard. 28. Rule 27.09, provides for the striking out of pleadings, portions thereof or other

documents at any time, that may prejudice, embarrass or delay the fair trial of the action, furthermore, that which is scandalous, frivolous, vexatious, or otherwise is an abuse of the process of the court.

Rules 22.04(3), Rules 23.01 and Rules 23.02 29. Defendants have erroneously claimed that the Plaintiff is barred by the

Limitation of Actions Act, which is not true. The exceptions to the two year general limitation periods allow the Plaintiff to file and serve the subject documents when the Plaintiff did file them. Further the Defendants have claimed that there is no merit to the Plaintiffs claims which may only be found after trial. The wording of the Rules of Court are clear, it reflects the conviction that, except in clear cases, the best truth-finding device is a trial. Summary judgment should be granted only when there is no reason for doubt as to what the judgment of the court should be if the matter proceeds to trial the moving

party's case must be unanswerable. The matter before the Court is not one which the Court may dispose of on summary judgment.

Time limitations 30. 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 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.

Failing to disclose a reasonable cause of action 31. Plaintiff Andre Murray reiterates what was stated above which is that a motion

to strike out a statement of claim for failing to disclose a reasonable cause of action is not available after a defendant files a statement of defense to the action. It appears that the Defendant in this case was satisfied that the particulars set out in the statement of claim were sufficient for them to file a defence. All the Defendants who are appearing on Motion with the exception of Constable Debbie Stafford have filed a statement of Defense, therefore that relief particular relief which is to strike out a statement of claim for failing to disclose a reasonable cause of action is no longer available to those Defendants.

32.

Plaintiff asserts that an order to strike should only be made in the clearest of

cases and here the Plaintiff has demonstrated a clear cause of action, and that, if there are any deficiencies in the pleading, the Plaintiff should be granted leave to amend its statement of claim to provide the necessary amendments. Lastly, no evidence can be considered on this kind of motion. The law is also clear that a statement of claim should not be struck out except in the clearest of cases, where it is plain and obvious or beyond doubt that the claim does not disclose a cause of action. The nature of the cause of action here seems quite clear, despite the alleged deficiencies. The liberal amendment policy of the Rules of Court of New Brunswick would be undermined, by efforts to impose on a plaintiff, rigid pleading requirements
Rule 23.01(b)

33.

Plaintiff contends, a `reasonable cause of action' means that a cause of action has

some chance of success, if and when only the allegations in the pleading are considered. If and when those allegations are examined it is found that the alleged cause of action is certain to fail, the statement of claim may be struck out. This case before the Court, is not one of those cases. 34. The principles, as referred to above, by Chief Justice Ernest Drapeau, in Sewell

v. ING Insurance Company of Canada, 2007, which inform the reader that a determination of a defendants motion to strike under Rule 23.01(1)(b), are well settled and can be summarized as follows: (1) the only question for judicial resolution is whether it is plain and obvious that the Statement of Claim fails to disclose the essential elements of a cause of action tenable at law. That conclusion should be reached only in the clearest of cases; (2) correlatively, absent exceptional circumstances, the court must accept as proved all facts asserted in the Statement of Claim and abstain from looking beyond the pleading itself and any documents referred to therein. To expand the exercise beyond those limits would operate to morph the motion under Rule 23.01(1)(b) into an application for summary judgment under Rule 22, the appropriate vehicle to determine prior to trial whether there is factual merit to a claim;

(3) the Statement of Claim is to be read generously to accommodate drafting deficiencies; and (4) where a generous reading of its provisions fails to breath life into a pleading, all suitable amendments should be allowed 35. Plaintiff contends, a `reasonable cause of action' means that a cause of action has

some chance of success, if and when only the allegations in the pleading are considered. If and when those allegations are examined it is found that the alleged cause of action is certain to fail, the statement of claim may be struck out. This case before the Court, is not one of those cases. 36. One of the remedies which is being requested in the Defendants Motions,

striking the Plaintiffs Statement of Claim, is one which is only to be applied in plain and obvious cases, when the action is one which cannot succeed or is in some way an abuse of the process of the court, which is not a fact in the present in this case. It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable or that it is quite plain that his alleged cause of action has no chance of success, this matter before the Court does not fall into the category. 37. It seems obvious that so long as the statement of claim, as it stands or as it may

be amended discloses some question fit to be tried by a Court, the mere fact that the case is weak or not likely to succeed is no ground for striking it out. Plaintiffs Statement of Claim, does not fall into a category that it is plain and obvious that the allegations against the Defendants, in the March 4, 2011 or the September 8, 2011 Amended Statement of the Statement of Claim, disclose no cause of action. Rule 27.09 38. The Defendants says that the claims of the Plaintiff are scandalous, frivolous,

and vexatious, but there is no evidence, before this Court of that fact, as similarly stated by Justice William T. Grant above, for example, that the pleadings, or any of them, would prejudice, delay or embarrass the fair trial of the action, are frivolous, or constitute an abuse of process. Because of the guiding principle that no party should be deprived of his

right to a trial on the merits of his case except where it is plain and obvious that he has no case, the Court will only use Rule 27.09 to strike pleadings reluctantly and in the clearest of cases.

39.

As referred to above, It is my understanding that the authorities clearly set forth

that one looks at the pleadings and assumes the pleadings as proven and then determines whether or not in the words of Madame Justice Wilson it is "plain and obvious" that the plaintiffs' statement of claim discloses no reasonable cause of action. Proceeding on the basis that the Court accept the allegations in the plaintiffs' statement of claim as proved, it should not be "plain and obvious" to this Court that the plaintiffs' statement of claim discloses no reasonable cause of action. Consequentially, this remains a matter to be disposed of in the trial process. This is a above referenced power which, it has been emphasized, ought to be exercised sparingly and only in exceptional cases. This in not one of those cases.

40.

In Hunt v. carey canada inc., [1990] 2 SCR 959, The Supreme Court did provide

as follows regarding, cases which are obviously frivolous or vexatious, that is, open to a defendant to admit all the facts that the plaintiff's pleadings alleged and to assert that these facts were not sufficient in law to sustain the plaintiff's case, if they were successful the Court was prepared to take action against a "manifestly vexatious suit which was plainly an abuse of the authority of the court"

41.

The power to strike out proceedings should be exercised with great care and

reluctance. Proceedings should not be arrested and a claim for relief determined without trial, except in cases where the Court is well satisfied that a continuation of them would be an abuse of procedure. Before the Court are credible allegations, statements of fact which support those claims, these claims are based in legally recognizable tort, therefore the Court should not strike the Plaintiffs claims. 42. Defendants have applied Under the Rules of Court, Rule 27.09 Striking Out a

Pleading or Other Document, for an order striking out the Plaintiffs entire Original

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March 4, 2011 Statement of Claim, and the September 8, 2011 Amended Statement of Claim. Rule 27.09, provides for the striking out of pleadings, portions thereof or other documents which are scandalous, frivolous, vexatious, or otherwise an abuse of the court. The Plaintiff claims do not meet the criteria which would allow this Court to strike the Plaintiffs claims. 43.
The Defendants, did complain that the Plaintiffs Claim is Lengthy, the Rules of

Court do not bar a lengthy claim, when a lengthy claims is required to properly and accurately describe the Plaintiffs claim. Plaintiff is self represented, so the Plaintiff did provide what was apparently necessary to accurately draft the Claim.

44.

The Defendants claim, that Plaintiffs claim is convoluted, repetitive, ambiguous,

and contain unnecessary or irrelevant allegations, are without foundation, are raised only for annoyance, cannot possibly succeed, have and will cause unnecessary anxiety, trouble and expense, and generally are improperly drafted.

45.

Plaintiff Andre Murray did underline the entirety of the Amended Claim because of the

substantial drafting changes and editing which did occur to the original claim. There is no Rule of Court which bars this practice, further, this did indicate to the Defendants the substantial drafting changes which did occur.

46.

Defendants claim, that the Plaintiff failed to comply with rules in drafting claims,

but any drafting deficiencies may be amended if necessary and that is not a valid reason to strike the entirety of someones claim. It is illogical that the Defendants claim that it is unfair for the Defendants to reply to the Plaintiffs claims because they are badly drafted, yet wish to have the Plaintiffs claim struck unjustly, unheard on its merits because of minor drafting deficiencies.
Rules 27.10

47.

Defendants have repeatedly claimed that Plaintiff Andre Murray did have to acquire

consent of all the parties to the Action and or have Leave of the Court, before filing the Amended Notice of Action. This position is in error and not according to the Rules of Court. Nowhere in

11

the Rules is it stated that there is a requirement for the Parties to Consent to the Amended or Leave to be granted prior to filing the Amended Notice of Action and Statement of Claim.

48.

Relevant factors to be considered by a Court on a motion to amend pleadings is

whether the proposed amendments comply with the general rules of pleading set out in the Rules of Court. Even when a motion to amend raises a new issue, it must be granted unless it would result in prejudice that cannot be remedied. The Court generally looks favorably on motions to amend pleadings, particularly where the proposed amendment does not involve the withdrawal of an admission. Plaintiff asserts that the Defendants have not established that they will suffer any prejudice by the amendments. 49. The rule in question, Rule 27.10, goes on to obligate the Court to allow any

amendment that is necessary for the purpose of determining the real questions in issue. The jurisprudence on point supports the view that amendments to pleadings that comply with the rules of pleadings found in Rule 27 should be only very rarely refused. That approach is shaped by the direction articulated in Rule 1.03, namely that the rules are to be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on the merits. Limitation of Actions Act 50. 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: 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. 51. 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 12

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- 0909 ) 2010 RTIPPA- 02, subject investigation report summary and conclusion revealed the cause of Applicant Andre Murrays battery and arrest resulted and caused by persons names 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. 52. The partial disclosure did reveal that FREDERICTON POLICE FORCE, was

called by a person who gave a description of someone matching 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.

53.

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

13

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 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.

Equity 54. Judicature Act, RSNB 1973, c J-2 section 26(6) and 26(8), recognizes equity.

The Court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise.

55.

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. 56. 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).

57.

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).

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58.

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)

59.

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).

60.

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).

61.

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. Cost 62. 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.

63.

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.

15

64.

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.

The Defendants have relied upon the following Rules of Court in their various filed Notice of Motion Rule 1.03(2), 3.02, 22.04(3), 23.01, 23.02, 27.06, 27.09, 27.10, 37, 39 and Rule 59 of the Rules of Court 1.03 Interpretation (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits. 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 22.04 Disposition of Motion Where Only Issue is a Question of Law (3) Where the court is satisfied that the only issue is a question of law, the court may determine that question and grant judgment accordingly. 23.01 Where Available (1) The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court (a) for the determination prior to trial, of any question of law raised by a pleading in the action where the determination of that question may dispose of the action, shorten the trial, or result in a substantial saving of costs, (b) to strike out a pleading which does not disclose a reasonable cause of action or defence, or 23.02 Evidence Except with leave of the court, on applications under Rule 23.01(1), evidence shall not be admitted except (a) a transcript of a relevant examination, and (b) affidavits which are necessary to identify a document or prove its execution.

Section 5 of limitation of actions act

16

PART 2 GENERAL LIMITATION PERIODS General limitation periods 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. 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. 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. 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; (c)the added claim adds or substitutes a claimant or changes the capacity in which a claimant sues, 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, and the addition of the claim is necessary or desirable to ensure the effective determination or enforcement of the claims asserted or intended to be asserted in the original pleadings. Delay caused by defendant 22 If the relevant limitation period established by this Act has expired, but the actions taken or assurances given by the defendant or the defendants agent in relation to the resolution of the claim before the expiry of the limitation period caused the claimant to reasonably believe that the claim would be resolved by agreement and therefore to delay bringing the claim, the claimant may bring the claim within 6 months after the day on

17

which the claimant first knows or ought reasonably to know that the belief was unfounded. 27.09 Striking Out a Pleading or Other Document The court may strike out any pleading, or other document, or any part thereof, at any time, with or without leave to amend, upon such terms as may be just, on the ground that it (a) may prejudice, embarrass or delay the fair trial of the action, (b) is scandalous, frivolous or vexatious, or (c) is an abuse of the process of the court. 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 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. How Amendments Made (3) A party who amends a pleading shall file with the clerk a copy of the amended pleading with the changes therein underlined where possible. 37 Procedure on Motions 39 Evidence on Motions and Applications 59 Costs of Proceedings Between Parties

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