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, ________________________________________________________ Post Hearing Brief For NOTICE OF MOTION Filed by Plaintiff ANDRE MURRAY Scheduled to be Heard on the 12th day of March 2012 at 4:00 p.m. ________________________________________________________

Andr Murray Plaintiff 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 andremurraynow@gmail.com

Trina Rodgers

506-472-9096 15 Fisher Ave Fredericton, NB E3A 4J1

Part I INDEX

Page Part I INDEX ___________________________________________________ i

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

Part III - A concise statement of the argument, law, and authorities relied upon; ____________________________________________

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Part IV - Orders Sought ___________________________________________

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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 From Paragraph 7 14 of the Affidavit of Andre Murray Dated

1)

February 10, 2012, I did explain the history of harassment which I have endured caused by Defendant Trina Rodgers.

2)

On the 9th day, of September, 2011, at 2:09 PM, 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.

Difficulties in Service upon Trina Rodgers I Andre Murray verily believe that on 9th day, of September, 2011 or

3)

shortly thereafter (based on the significant behavior change of herein named Defendants) Defendant Neil Rodgers and Defendant Trina Rodgers, obtained notice and or were advised that they were named as Defendants pursuant to Court File Number: F/C/45/11. Prior to 9th day, of September, 2011

the significant behaviour of Defendant Neil Rodgers and Defendant Trina Rodgers included a unrelenting continuous day by day harassment campaign beginning each day with either or Defendant Neil Rodgers and Defendant Trina Rodgers observing Andre Murray as his daily property management chores were conducted about the yard and or property surrounding his Residential Leasehold house this subject harassment was achieved by various means although became repetitive since the initial encounter with the Rodgers year 2005. I verily believe Defendant Trina Rodgers have amused herself by bearing

false witness against Andre Murray thereby complaining to FREDERICTON POLICE FORCE making frivolous complaints therefore always found to be lacking substance whatsoever.

4)

After I Plaintiff Andr Murray, served the Fredericton Police Force,

with a AMENDED NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED (FORM 16A), Dated September, 8, 2011, Court File Number: F/C/45/11 on the 9th day, of September, 2011, as I was attempting Court Document process service upon Defendant Trina Rodgers, for the first time since 2005 the Rodgers began avoiding me presumably in an attempt to not be served. I Andre Murray did witness, these above mentioned actions and behaviors of Defendant Neil Rodgers and Defendant Trina Rodgers, noticeably diminish in frequency.

5)

I Plaintiff Andr Murray verily believe that the Fredericton Police

Force, following Service of the relevant Court documents, 9th day, of September, 2011, did contact Defendant Neil Rodgers and Defendant Trina Rodgers and as a result of this contact Defendant Trina Rodgers did temporarily discontinue her usual course of confrontational conduct and alternatively initiated strategic behaviour regarding their personal movement, began a course of conduct intended to frustrate Plaintiff Andr Murrays Court Document Process Service attempts upon her.

6)

Serving Defendant Trina Rodgers became very difficult because

Defendant Trina Rodgers was no longer making her daily routine appearances outside their house and when I did approach her house she would run into their

house, locking the door refusing to answer my knocks upon the entrance door to her house, no answer to my knocking was forthcoming.

Service of Action From Paragraph 15 22 of the Affidavit of Andre Murray Dated February 10, 2012 7) After many days and many attempts at Service, I Andre Murray was

finally successful at service, of the relevant Court documents, September 15, 2011, by driving up their driveway in the back seat of a marked cab van, and further I had two witnesses, witness me serve Defendant Neil Rodgers and Defendant Trina Rodgers, by way of leaving with Defendant Neil Rodgers a copy of the subject Court Documents. Defendant Neil Rodgers did at that time attempt to evade service, first attempting to run into the house, and secondly denying repeatedly that though he was served according to the Rules of Court, that he was (based or incoherent claims), not at all served furthermore by Defendant Neil Rodgers simply dropping the documents onto the ground, Defendant Neil Rodgers then erroneously claimed improper service.

8)

September 18, 2011, I did attempt to Serve Defendant Trina Rodgers at

her place of work, with a copy of relevant Court documents. When I approached the front desk I asked to speak to Trina Rodgers, I was escorted out side by a man who would not identify himself, but instead of being brought to Trina Rodgers as was first claimed, I was threatened with sever bodily harm if I ever did show my face again about the premises, because, it was claimed this man was a friend of Trina Rodgers, and he know how to deal with me for her. I was told the Police have been called so I had better clear out quick. I needed to return to the property to retrieve my bicycle, so I waited for the Police to arrive.

I was approached by member of the RCMP, Constable Lawless, I was unreasonably quickly thrown onto the hood of the car, handcuffed, arrested and detained in the back of the RCMP cruiser for some time. I was released without charge, then escorted back to my bicycle so that I may retrieve my bicycle without being accosted any further by the unnamed threatening employee.

9)

Defendant Trina Rodgers has made it very difficult to serve her with

prerequisite Court documents, frustrating even other Court document Servers, who I Andre Murray did retain to effect service upon them. Defendant Trina Rodgers have refused Court document service by Registered mail, while at the same time unreasonably requiring that Defendant Trina Rodgers must be served only by professional process server.

10)

Oct 18, 2011, Defendant Trina Rodgers was waiting for me to arrive at

the Fredericton Court House, further she did follow me about the Court House building. When I was outside the Court room, she stayed outside the Courtroom. When I walked to the Court room she also walked into the Court Room. When I left the Court room, when a break was offered by the Court Trina Rodgers did follow me outside the Court room and follow me about. I asked the Judges of the Court of Appeal to have Trina Rodgers removed because of the harassment she was engaged in, but the Court refused, stating that the Court was open to the public. The Court of Appeal did make reference to this event in their decision on the matter.

11)

Defendant Trina Rodgers did not serve the Statement of Defence and

Counter Claim, upon Plaintiff Andre Murray until October 19, 2011, a full 15 days past the requirements of the Rules of Court.

12)

In Defendant Trina Rodgers Statement of Defence and Counter Claim

October 4, 2011, it was state that: Trina Rodgers have never ridden in the back of a police car, either marked, or unmarked. Which is, a not so clever way, of obfuscating the fact, that Defendant Trina Rodgers did not deny sitting in the front seat, of the unmarked Police Cruiser, as witnessed and alleged by affidavit of Plaintiff Andre Murray, regarding the subject May 7, 2008 incident. Plaintiff Andre Murray verily believes, that the claims made, against Defendant Trina Rodgers regarding the May 07, 2008 incident are justified and the Amended Statement of Claim deserves to be heard on its merits (following discovery).

Defence to Counter Claim I Andre Murray did hire Shane Henry to act as process server, further I

13)

did accompany Shane Henry on these various service attempts in the task of serving Trina Rodgers with the following documents A and B:

A. DEMAND FOR PARTICULARS (FORM 27L) Dated October 27, 2011 to NEIL RODGERS and TRINA RODGERS

B. DEFENCE TO COUNTERCLAIM (FORM 27D) Dated October 26, 2011 to NEIL RODGERS and TRINA RODGERS I Andre Murray did meet with Shane Henry October 27, 2011, before

14)

his service attempt. On the 27th day, of October, 2011, at 9:30 AM Shane Henry did attempt service of the two documents herein indicated at 15 Fisher

Ave, Fredericton, New Brunswick. I Andre Murray did witness Shane Henry walk up the driveway of the property and approached the Main door of the House. I Andre Murray did hear Shane Henry knock loudly upon the Side door, which appeared to be that main entrance of the house, sufficiently loud that if anyone was present in the house they would have heard the subject knocking on the door. I Andre Murray did observe Shane Henry walk around the front of the house. I Andre Murray did observe Shane Henry walk over to the woodshed. I Andre Murray did observe Shane Henry returned the House and knocked loudly several more times.

15)

I Andre Murray did on the 27th day, of October, 2011, at 10:30 AM

send to Neil Rodgers and Trina Rodgers by registered mail Tracking Numbers: 0124346000500232, a copy of the same documents A and B:

16)

I Andre Murray did meet with Shane Henry October 28, 2011, before

his service attempt. I Andre Murray did observe Shane Henry the morning of Friday Oct 28, 2011 at 9:30 am attempt service of the two documents herein indicated at 15 Fisher Ave, Fredericton, New Brunswick. I Andre Murray did observe Shane Henry walked the driveway of the property and approached the Main door of the House. I Andre Murray did observe Shane Henry did knock loudly upon the Side door, which appeared to be that main entrance of the house, sufficiently loud that if anyone was present in the house they would have heard my knocking on the door. I Andre Murray did observe Shane Henry walked around to the front of the house. I Andre Murray did observe Shane Henry walked over to the woodshed. I Andre Murray did observe Shane Henry returned the House and knocked loudly several times more.

17)

I was informed by Maggie who works at the Canada Post Outlet on 231

Canada Street and verily believe to be true that at 1:12 PM October 29, 2011 Neil Rodgers and Trina Rodgers had refused to accept service of the copy of the same documents I was attempting to serve, which were conveniently available for them at the post office. I spoke to Maggie at post office, who was working at that time, regarding the subject documents which, were sent by mail to Neil Rodgers and Trina Rodgers, she said to me that it was her Maggie, who was the one who served Neil Rodgers and his wife Trina Rodgers when they came into the Post Office October 29, 2011, with a Canada Post Delivery Notice card. Maggie, did further advise me Andre Murray therefore I verily believe to be true that Neil Rodgers produced and presented to Maggie for examination, his photo identification, thereby confirming his identity; however, subsequently before providing the prerequisite signature indicating acceptance for receipt of subject package, Neil Rodgers instead seized the package evidently therefore, to examine and read the return address on the package, consequently Neil Rodgers realized as Maggie heard him express out loud to his wife Trina Rodgers this package is from Andre Murray, at that point in time I am advised by Maggie the Canada Post attendant that Neil Rodgers refused to accept the package, and further instructed his wife not to accept delivery of it, finally Maggie advised me Andre Murray and I believe to be true that Neil Rodgers in no uncertain terms expressed to the Post Office attendant, his refusal to accept delivery of subject package instructing Maggie to return to sender, furthermore, thereafter left the building directly.

18)

I Andre Murray did meet with Shane Henry October 31, 2011, before

his service attempt. I Andre Murray did observe Shane Henry Monday Oct 31st 2011 at 9:30 am again attempt service of the two documents herein indicated at

15 Fisher Ave, Fredericton, New Brunswick. As I Andre Murray did observe Shane Henry walking up the subject house, I confirm that I witnessed Trina Rodgers run outside from within the subject house and jump into her car and drive away quickly. I Andre Murray did observe Shane Henry walk up the driveway of the property and approached the Main door of the House. I Andre Murray did observe Shane Henry did knock loudly upon the Side door, which appeared to be that main entrance of the house, sufficiently loud that if anyone was present in the house they would have heard his knocking on the door. I Andre Murray did observe Shane Henry walk over to the woodshed. I Andre Murray did observe Shane Henry returned the House and knocked loudly several more times.

19)

I Andre Murray did observe Shane Henry left the property to gain

further instruction, from me. After discussing the matter with me, I instructed Shane Henry to tape a copy of the subject documents, in an envelope to the main door of the house, so that it would come to the attention of anyone approaching or entering the property. I Andre Murray instructed Shane Henry that the subject document should be attached to the door in such a fashion that they would be protected from the environment, and further, would come to the attention of Neil Rodgers or Trina Rodgers, unless they were attempting to avoid service of these documents. Monday Oct 31st 2011 at 9:45 am, Shane Henry informed me and I

20)

verily believe to be true, that Shane Henry left the subject package taped to the door of the house, so that it would come to the attention of anyone approaching or entering the property. Shane Henry informed me and I verily believe that the document was left so that it would have come to the notice of the persons

sought to be served, except for their own attempts to evade service. The subject envelop containing a copy of the documents indicated as A and B:

A. DEMAND FOR PARTICULARS (FORM 27L) Dated October 27, 2011 to NEIL RODGERS and TRINA RODGERS

B. DEFENCE TO COUNTERCLAIM (FORM 27D) Dated October 26, 2011 to NEIL RODGERS and TRINA RODGERS I Andre Murray have been informed by Shane Henry and I verily

21)

believe to be true that from the difficulty, Shane Henry did have in gaining the attention of someone within the property, on October 27, October 28 and October 31, 2011, I verily believe that Neil Rodgers and Trina Rodgers were attempting to evade service of the subject documents. I do verily believe that based upon the experiences above expressed, that leaving the envelope taped to the front door, containing the subject documents was the only way to effect service upon Neil Rodgers and Trina Rodgers.

Motion Dated October 3, 2011 On the 9th day, of January, 2012, at 3:55 pm, I Andr Murray, Pursuant

22)

to Rules of Court Rule 18.02 How Personal Service Shall be Made 18.02 (1)(a) I Andr Murray served, Defendant Trina Rodgers, at (her place of residence) 15 Fisher Ave, Fredericton, NB, E3A 4J1 with an Envelope containing documents marked A, B, and C and attached herewith:

A: NOTICE OF MOTION (FORM 37A), Dated October 3, 2011;

B: AFFIDAVIT 1, Dated October 3, 2011;

C: AFFIDAVIT A, Dated January 09, 2012;

23)

I Andr Murray acting as Process Server was able to identify the person

served by means of the fact that, Trina Rodgers is known to me, having previously been introduced and on several occasions met Trina Rodgers, further having been a next door neighbor for a period of six years 2005 to 2012.

24)

When I approached the house of Neil Rodgers and Trina Rodgers, I did

observe a car in the driveway, and as I approached the main entrance door to the subject house on 15 Fisher Ave, Fredericton, I did observe Trina Rodgers standing at the sink in her kitchen. I opened the exterior door and knocked loudly upon the interior door.

25)

Trina Rodgers did walk past the door onto which I was knocking and

walked out of sight. I did hear her voice indicating that she was calling the Police Force and indicated to them that I Andre Murray was outside her door, knocking and attempting to process serve Court documents.

26)

I continued to knock several times, indicating who I was and my

purpose was to provide Court documents to her.

27)

I walked away from the building and returned within minutes, again

opening the outside door and knocking loudly upon the inside exterior door, announcing who I was and that I had Court documents to Serve. I did again

10

hear Trina Rodgers voice, indicating that she was calling the Police Force for a second time and indicated to them that I Andre Murray was outside her door, knocking and attempting to process serve Court documents. I did verily believe that Trina Rodgers would not cooperate any further so I did leave two envelopes at the base of the door, so that it would come to the attention of anyone approaching or entering the property and if she did open the door, the packages would have landed inside at her feet, and unless the Neil Rodgers and Trina Rodgers were attempting to evade service these documents would come to their attention.

28)

Shortly thereafter the Fredericton Police force members did arrive at the

same residence.

29) On the 16th day, of January, 2012, at 5:30 pm, I Andr Murray, Pursuant to Rules of Court Rule 18.02(1)(a), served, Defendant Trina Rodgers, at her place of residence 15 Fisher Ave, Fredericton, NB, E3A 4J1 by leaving with Trina Rodgers an Envelope containing documents marked D, E, and F and attached herewith:

D: AFFIDAVIT B, Dated January 16, 2012;

E: AFFIDAVIT C, Dated January 16, 2012;

F: AFFIDAVIT D, Dated January 16, 2012;

30) I Andr Murray acting as Process Server was able to identify the person Trina Rodgers with whom I left the herewithin above mentioned Court

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Documents, by means of the fact that, Trina Rodgers is known to me, having previously encountered Trina Rodgers on several occasions, whereby Trina identified herself, further having been a next door neighbor for a period of six years 2005 to 2012.

31)

When I approached the house of Trina Rodgers, I did observe a car in

the driveway, and a truck in the driveway as I approached the main entrance door to the subject residential civic address house on 15 Fisher Ave, Fredericton, I did observe Defendant Trina Rodgers as I stood at the window door for that reason by this means unavoidably looking into their what appears to be a kitchen and standing not more than 10 feet from me she looked directly act me as I knocked on the door, at the same time announcing that I had Court documents to process serve upon her, requesting that they please accept Court Document Service.

32)

Trina Rodgers immediately walk past the window door at which I stood

knocking and walked out of sight. I then heard Trina Rodger voice indicating to me that she was calling the Police Force thereby verbalizing to them that I Andre Murray was outside her door, knocking and attempting to Process Serve Court Documents.

33)

I continued to knock several times, again confirming who I was further

confirming my purpose was to provide Court documents to Trina Rodgers and Neil Rodgers. When neither Neil Rodgers or Trina Rodgers would open the door to accept Service of the subject Court documents I did leave the two envelops containing the subject documents, one addressed to Trina Rodgers and the second addressed to Neil Rodgers leaning against the bottom of the inner

12

window doorway, so that when the door was opened the documents would incidentally fall inside, these documents would come to their attention.

34)

Defendant Trina Rodgers had threatened to telephone the Police,

incidentally, shortly thereafter a Fredericton Police Force patrol car did indeed arrive at Defendant Trina Rodgers 15 Fisher Ave residence.

35)

On the 29th day, of February, 2011, at 9:15 AM, accompanied by a

witnesses, I Andr Murray, Pursuant to Rules of Court Rule 18.02(1)(a), caused to be Court Document Process Served one Defendant Trina Rodgers, at her place of residence 15 Fisher Ave, Fredericton, NB, E3A 4J1 by leaving with Defendant Trina Rodgers an Envelope containing documents marked A, B, C, D and E attached herewith:

A: AMENDED NOTICE OF MOTION (FORM 37A), Dated February 27, 2012;

B: NOTICE OF MOTION (FORM 37A), Dated February 12, 2012;

C: Affidavit of Andre Murray; Dated February 10, 2012.

D: Affidavit of Shane Henry; Dated February 7, 2012

E: Affidavit of Mary Patricia Elizabeth Eaton; Dated February 10, 2012.

36)

I Andr Murray acting as Court Document Process Server was able to

identify the Defendant Trina Rodgers with whom I did leave in her care and

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control, the herewithin above mentioned Court Documents, in which the person to be served resides by means of the fact that, Trina Rodgers is known to me, having previously met Defendant Trina Rodgers on several occasions, furthermore having been a next door neighbor thereby living in a house immediately adjacent to the Defendant Trina Rodgers for a period of seven years 2005 to 2012.

37)

Furthermore, having observed Defendant Trina Rodgers, immediately

thereafter having verbally communicated directly with Defendant Trina, as only a exterior window door separated myself from the Defendant Trina Rodgers I advised Defendant Trina Rodgers that Process Service of subject documents was being at that time being severed upon her, although Defendant Trina Rodgers refused to open the door and or accept the Process Service I had no alternative than to at that time and in accordance to Rules of Court Rule 18.04; Substituted Service; I Andre Murray did leave a copy of attached documents marked A, B, C, D, E with Trina Rodgers as she watched me taping the package containing a copy of the subject documents, addressed to Trina Rodgers, to the door of Trina Rodgers Residence at her place of residence being 15 Fisher Ave, Fredericton, NB, E3A 4J1.

38)

Trina Rodgers immediately walk past the window door at which I stood

knocking and walked out of sight. I then heard Trina Rodger voice indicating to me that she was calling the Police Force thereby verbalizing to them that I Andre Murray was outside her door, knocking and attempting to Process Serve Court Documents.

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39)

Defendant Trina Rodgers had threatened to telephone the Police,

incidentally, shortly thereafter a Fredericton Police Force patrol car did indeed arrive at Defendant Trina Rodgers 15 Fisher Ave residence.

40)

I Plaintiff Andre Murray very believe that Defendant Trina Rodgers has

undertaken a course of conduct designed to frustrate Court Document Process Service attempts upon her, further her actions have to date relentlessly caused undue difficulty, have delayed time and abusively exhausted resources of Plaintiff Andre Murray, for that reason deserving of the Courts sanction in the form of costs awarded to the Plaintiff in this matter.

41)

I Plaintiff Andre Murray in light of the circumstances further

considering evidently unashamed conduct of Defendant Trina Rodgers, therefore intended to be obstructive of all matters concerning Court Document Process Service, on the dates listed below, consequentially the Court may Order substituted service upon Defendant Trina Rodgers, thereby moreover thereafter validating service, by way of taping Court documents to the front door of the residence, to be effective on the day so left, will be sufficient to meet the requirements of Service upon defendant Trina Rodgers from now on. 1. September 15, 2011 Avoidance of Service at Residence 2. September 18, 2011 threats of violence by coworker on Defendant Trina Rodgers behalf and causing actual arrest by RCMP 3. October 29, 2011 package at post office purposefully left 4. Oct 31st 2011 avoidance of Service at Residence 5. January 9, 2012 avoidance of Service at Residence calling the Police 6. January 16, 2012 avoidance of Service at Residence calling the Police 7. February 29, 2011 avoidance of Service at Residence calling the Police

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Part III A concise statement of the argument, law, and authorities relied upon; 42) The Court may impose an immediate costs sanction to counter

obstruction of justice and or reasonably the abusive conduct of Defendant Trina Rodgers, furthermore to recognize the enormous waste of time and resources this Defendants conduct has caused.

43)

This subject motion for costs in fact is consistent with substantive

material facts found throughout the originating process NOTICE OF ACTION, and STATEMENT OF CLAIM; however, therefore the merits of the claims at issue, as this request for sanction of the named party has been necessitated by the Plaintiff; moreover, in an attempt to give the honorable Court opportunity to motivate the Defendant by way of sanction and or other Orders, as may be necessary, for the reasons stated, moderate the herein mentioned behavior.

44)

A significant sanction is necessary to acknowledge what has been a

pattern of conduct that which has been obstruction of justice by Defendant Trina Rodgers, resulting in the enormous waste that which has occurred.

45)

Question for the Court to consider: given the consistent unrelenting

repetitive nature of the conduct herein complained of, what then is sufficient by way of a costs sanction to ensure that Defendant Trina Rodgers desist from her objectionable subject behavior to date, regarding avoidance of Court document Process Service, that these matters before the Court may be dealt with on their merits in the most just, cost-effective and expeditious manner.

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46)

In Ocean Contractors Ltd. v. Shoreline Paving Ltd., 2007 NSSC 342

(CanLII) Justice M. Heather Robertson from paragraph 14 20

[14] It is clear from his evidence that Stephen Doucet wanted to avoid service, when he was told by Mr. Rogers that he was a named defendant in a legal action. Indeed, Mr. Doucet was at home on the second occasion the process server called at his residence and admitted so in a subsequent phone conversation he had with Mr. Rogers. [16] In my view by both the evidence I have heard relating to service and the subsequent correspondence of December 8, 2006, Stephen Doucet did understand he was a defendant in this action. [18] From all the evidence before me, I believe Mr. Doucet knew that he was a defendant in this action. He not only failed to seek legal advice and file a defence, but actually willfully avoided service of court documents... [20] The application is accordingly dismissed with costs to the respondent in the amount of $750. 47) Pursuant to Rules of Court Rules 59.01(1) Authority of the Court; 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. 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

17

what extent costs shall be paid. 48) Pursuant to Rules of Court Rules 59.02 (e), (f) and (g) Costs of a

Proceeding; in fixing costs, the Court may consider the conduct of any party which tended to unnecessarily lengthen the duration of the proceeding, the manner in which the proceeding was conducted, further any step in the proceeding which was improper, vexatious, prolix or unnecessary. 59.02 Costs of a Proceeding In fixing costs, the court may consider (e) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding, (f) the manner in which the proceeding was conducted (g) any step in the proceeding which was improper, vexatious, prolix or unnecessary, 49) The Court may, on such terms as may be just, extend or abridge the time

prescribed by an order or judgment or the Rules of Court on a Motion for abridgement or extension of time, which may be made either before or after the expiration of the time prescribed.

50)

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

unless the rule expressly or impliedly provides otherwise. The administration of the law is subject to the maxim lex non cogit ad impossibilia aut inutilia. If in the interpretation the Court finds the duty either impossible of performance and beyond the normal capacity of a reasonable or prudent man, or when performance in the strictest language of the enactment is either idle or impossible, then the enactment must be understood as dispensing with the strict performance of that duty.

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51)

The Bombay High Court in the Case of Poona Electric Supply Co. Ltd.

And ... vs State on 3 December, 1964 (AIR 1967 Bom 27, (1965) 67 BOMLR 534, 1967 CriLJ 155) Justice Gokhale did provide his view of dispensing with the strict performance on at paragraph 15 as follows:

(15) It is well-known that when a condition is impossible of performance, the condition must be treated as dispensed with and it is in such cases that the maxim lex non cogit ad impossibilia aut inutilia applies. In English the maxim means, "The law does not compel the impossible." To the same effect are two other maxims. "Impotentia excusat legem", which means "Inability is an excuse in law" and "Argumentum ab impossibili plurimum valet in lege" which means "An argument deducted from an impossibility greatly avails in law".

52)

In Dennis v. The Queen, [1958] S.C.R. 473 the Supreme Court did

provide insight in to dispending with a provision at page 482 as follows:

[Page 482] this qualified decision shows that it rested on an application of the maxim lex non cogit ad impossibilia aut inutilia. The general principles were stated as follows by Channell J. at pp. 25-6: The law applicable to the point is clearly stated in Maxwell on the Interpretation of Statutes (5th ed.) at p. 621: "Enactments which impose duties on conditions are, when there are not conditions precedent to the exercise of a jurisdiction, subject to the maxim that lex non cogit ad impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed, when performance is idle or impossible. In such cases, the provision or condition is dispensed with, when compliance is impossible in the nature of things. It would seem to be sometimes equally so where compliance was, though not impossible in this sense, yet impracticable, without any default on

19

the part of the person on whom the duty was thrown." The author then refers to Morgan v. Edwards, 5 H. & N. 415, Woodhouse v. Woods, 29 L.J.(M.C.) 149, and Syred v. Carruthers, E.B. & E. 469, and says: "If the respondent in an appeal kept out of the way to avoid service of the notice of appeal, or at all events could not be found after due diligence in searching for him, the service required by the statute would probably be dispensed with

53)

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. 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 to have been commenced by an originating process other than the one employed. 2.03 Attacking the Regularity of Proceedings A motion to attack a proceeding for irregularity shall be made within a reasonable time, and shall not be allowed if the party applying has taken a further step in the proceeding after having knowledge of the irregularity. 54) Plaintiff will prove that the balance of convenience favors the granting

of the relief sought, it is reasonable, considering the behaviour of the

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Defendants Trina Rodgers, as confirmed by her own affidavit, Dated 5th day of March paragraph 16, in which she does confirm calling the police in response to the Plaintiff Andre Murray attempting to process serve documents.

55)

Defendant Trina Rodgers should pay costs, Pursuant to Rules of Court

Rules 59.01(1), 59.02 (e), 59.02 (f) and 59.02 (g) for those reasons be ordered as a sanction against Trina Rodgers for her frivolous, vexatious actions and abuse of process, incidentally for her avoidance of Court Document Process Service, thereby effectively evading service, further displaying conduct deserving of sanction; it is, of course, customary, in procedures of this sort, to require that persons found guilty of subject alleged contemptuous behavior therefore should pay costs on a solicitor and client basis to the party who as a result of the herewithin aforesaid behavior, suffers harm or injury. Plaintiff Andr Murray seeks restitution of financial losses attributable to Defendant Trina Rodgerss subject mischievous behavior, further as there appears to be in the evidence a sufficient basis to find a causal connection between the Plaintiffs costs and the Defendants behavior that being the contemptuous conduct related to and contributing to the otherwise unnecessary numerous redundant failed attempts of Process Service of Court Documents upon Trina Rodgers this subject avoidance is substantiated by the abundantly documented affidavit evidence of avoidance thereof, consequentially thereby, provided herewithin by provided affidavits; moreover, as the Plaintiff has found since year 2005 the herein named Defendant Trina Rodgers to be a habitual instigator/provocateur for that reason, one who, without reasonable and probable cause, instigates and or attempts (as in this case) relentlessly seeking to potentially discredit or cause harm to the plaintiff, perhaps by provoking the plaintiff to incidentally commit a wrong or rash action; please note that the

21

Plaintiff does not pretend to comprehend the rationality for Defendant Trina Rodgerss behavior as this does not appear obvious, or visible, however, these herewithin mentioned situations and or circumstances has consequentially necessitated the plaintiff to, as the last in a series of related events, to reasonably File a legal MOTION to be heard by the Court requesting therefore Orders that the defendant may incur a civil liability for intentionally avoiding Process Service of the subject Court Documents.

56)

In Louis Vuitton Malletier S.A. v. Yang, 2007 FC 1179 (CanLII) Justice

SNIDER J. at para 54 59 regarding Solicitor Client Costs, did provide as follows: 5.4 [54] Solicitor-Client Costs The Plaintiffs seek their costs on a solicitor and client basis.

[55] Rule 400(1) of the Federal Courts Rules gives the Federal Court the discretionary power to award solicitor-client costs. However, the awarding of solicitor-client costs should only be made where a party has displayed reprehensible, scandalous or outrageous conduct (Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 at para. 251; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13 (CanLII), [2002] 1 S.C.R. 405 at para. 86; Apotex Inc. v. Canada (Minister of National Health and Welfare) 2000 CanLII 16483 (FCA), (2000), 9 C.P.R. (4th) 289 at para. 7 (F.C.A.)). Reasons of public interest may also justify making an award of solicitorclient costs (Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3 at 80). [56] Justice Harrington defined reprehensible, scandalous and outrageous conduct in Microsoft Corp. v. 9038-3746 Quebec Inc., 2007 FC 659 (CanLII), 2007 FC 659 at para. 16 [Microsoft Corp 2] as follows:

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"Reprehensible" behaviour is that deserving of censure or rebuke; blameworthy. "Scandalous" comes from scandal which may describe a person, thing, event or circumstance causing general public outrage or indignation. Among other things, "outrageous" behaviour is deeply shocking, unacceptable, immoral and offensive (see: Oxford Canadian Dictionary).

[57] The Plaintiffs have submitted substantial evidence with respect to why solicitor-client costs should be awarded in the case at bar [58] Also, it is evident from the record that the Defendants behaviour in trying to avoid service and failing to defend the action has caused the Plaintiffs to incur unnecessary legal fees and disbursements. [59] Based on the evidence before the Court, I find the Defendants dismissive attitude towards this proceeding and past judgments of this Court and the continued flagrant infringement of the Plaintiffs intellectual property rights to be worthy of rebuke. The conduct of the Defendants is reprehensible, scandalous and outrageous. Further, the public interest in this case justifies an award of solicitorclient costs. Accordingly, I find this Court should award solicitor-client costs.

57)

The Plaintiff believes that the behaviour as indicated in the affidavits

supporting this motion and particularly the avoidance of service and inappropriately calling the Police every time the applicant attempt to provide service, causing co-workers to threaten the Plaintiff with bodily harm all contribute to a dangerous scenario which could be considered as stated above: "Reprehensible" behaviour is that deserving of censure or rebuke; blameworthy. "Scandalous" comes from scandal which may describe a person, thing, event or circumstance causing general public outrage or indignation. Among other

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things, "outrageous" behaviour is deeply shocking, unacceptable, immoral and offensive (see: Oxford Canadian Dictionary).

58)

In Groves v. Meyers, 2003 SKQB 38 (CanLII), Justice WILSON J. did

provide as follows regarding solicitor client costs being appropriate to award when a party is avoiding service at paragraph 3, 7 and 19 as follows:

[3] He concludes that Ms. Campbell may be avoiding service of the application. Baynton J. directed that Ms. Campbell could be substitutionally served with the application by faxing a copy of the application to Ms. Paulsen, who had not at that time filed a notice of withdrawal of solicitor, along with a copy of his fiat. He then directed that the return date of the motion should be revised to a date that complies with the length of service required by Rule 602(3)(b) of the Queens Bench Rules of Court. [7] I agree with Baynton J. that Ms. Campbell appears to be avoiding service of Mr. Groves application. Ms. Campbell was obviously able to be located in August, 2002 when she wanted to pursue an application for child support, however, since the child support order was made on September 6, 2002, no one, including her own solicitor, is able to determine her whereabouts. It is my view that Ms. Campbell has been properly served with the application to vary in this matter through the substitutional service as directed by Baynton J. in his fiat of November 29, 2002. [19] Finally, Mr. Groves shall have costs of this application on a solicitor and client basis. 59) In CIBC Mortgage Corp. v. Dubois, 2003 SKQB 472 (CanLII) Justice

KLEBUC J. addressed solicitor-and-client costs for avoidance of service issues before the Court at para [9] I also agree with Wright J.s statement that costs may be allowed where the mortgagor deliberately abuses the protection

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provisions of the Act by repeatedly falling into arrears when (a) capable of making payments on the mortgage, or (b) when capable of making arrangements with the mortgagee to remedy a default within a reasonable period. I would add to his definition of chronic offender(s), mortgagors who deliberately attempt to frustrate the mortgagees attempt to secure leave by avoiding service in circumstances where they are aware, or ought to be aware, of their mortgage arrears and the mortgagees intention to initiate enforcement proceedings in connection therewith. The imposition of costs in such circumstance is consistent with the philosophical underpinning of the Act to the extent delinquent mortgagors acting in good faith will receive the protection afforded by the Act without allowing disingenuous mortgagors to use the Act as a means of dodging their obligations, including avoidance of service. The cost of such unreasonable conduct inevitably must be recovered from the delinquent mortgagor or added to the cost of borrowing for all mortgagors. The latter result is not an objective contemplated by the Act. [10] In the instant case, there is no evidence of the mortgagors repeatedly falling in arrears when able to make regular payments on their mortgage, or of them rejecting any reasonable proposal by the mortgagee for the orderly retirement of their mortgage arrears. However, there is evidence of the mortgagors deliberately avoiding service of an appointment for leave, thereby causing the mortgagee to incur substantial costs in securing an order for substitutional service and a new appointment. In these circumstances the mortgagee is entitled to costs incurred as a result of the mortgagors deliberate avoidance of service of the aforementioned appointment. [12] Concerning the issue of solicitor-and-client costs versus party-and-party, I am satisfied that a rational basis exists for awarding solicitor-and-client costs in this case. And I exercise my discretion under s. 3(11) of the Act by awarding the mortgagee solicitor-and-client costs related to the ex parte order for substitutional service and the ex parte order authorizing the second appointment together with disbursements incurred in serving the same, which I fix at $483.75 inclusive of taxes. These costs are due and payable by the mortgagors within 30 days of the date a copy of this fiat is mailed by ordinary mail to them at their last address of record with the mortgagee. No costs are awarded to the mortgagee on account of the within application.

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60)

Please note that abridgement of time 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 is no longer necessary;

61)

The applicant requests that the Court authorize all past to Date and

necessarily future document Substituted Service pursuant to Rule 18.04 and/or Validation of all past to Date and necessarily future document process service pursuant to Rule 18.09 of the Rules of Court by serving a copy of any Court documents related to this Action by taping a copy of the documents contained within a addressed envelope to the front door of the residence of Trina Rodgers to be effective on the day so left. 18.04 Substituted Service (1) Where personal service of a document is required by these rules, and it appears to the court that it is impractical to effect prompt personal service, the court may make an order for substituted service. (2) In an order for substituted service, the court shall specify when service in accordance with the order is effective.

18.09 Validating Service Where a document has been served by some method not authorized by an Act, these rules or an order of the court, or where there has been some irregularity in service, the court may order that the service be validated on such terms as may be just, if the court is satisfied that (a) the document came to the notice of the person sought to be served, or (b) the document was left so that it would have come to the notice of the person sought to be served, except for his own attempts to evade service.

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62)

The applicant requests that the Court validate all past to Date document

Service pursuant to Rule 18.04 and/or Validation and pursuant to Rule 18.09 of the Rules of Court by serving a copy of any Court documents related to this Action by leaving or taping a copy of the documents contained within a addressed envelope to the front door of the residence of Trina Rodgers to be effective on the day so left. The Plaintiff requests validation of the following service dates: 8. September 15, 2011 Service on Residence 9. October 29, 2011 package at post office 10. Oct 31st 2011 Service on residence 11. January 9, 2012 Service on Residence 12. January 16, 2012 Service on Residence 13. February 29, 2011 Service on Residence 63) The applicant requests that the Court authorize all necessarily future

document Service pursuant to Substituted Service according to Rule 18.04 and/or Validation of all necessarily future document process service pursuant to Rule 18.09 of the Rules of Court by serving a copy of any Court documents related to this Action by taping a copy of the documents contained within a addressed envelope to the front door of the residence of Trina Rodgers to be effective on the day so left.

64)

The Plaintiff requests the Court to take judicial notice of the Defendants

actions and the appropriate remedies thereto.

Cost Orders in favor of self-represented litigants 65) 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.

66)

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. 67) 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.

68)

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.

69)

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.

70)

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.

71)

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.

72)

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. 73) 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.

74)

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 their own

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

75)

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.

76)

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.

Part IV Orders Sought 77) Defendant Trina Rodgers pay costs, Pursuant to Rules of Court Rules 59.01(1), 59.02 (e), 59.02 (f) and 59.02 (g) for those reasons be ordered as a sanction against Trina Rodgers for her frivolous, vexatious actions and abuse of process, incidentally for her avoidance of Court Document Process Service, thereby effectively evading service, further displaying conduct deserving of sanction; it is, of course, customary, in procedures of this sort, to require that persons found guilty of subject alleged contemptuous behavior therefore should pay costs on a solicitor and client basis to the party who as a result of the herewithin aforesaid behavior, suffers harm or injury. Plaintiff Andr Murray seeks restitution of financial losses attributable to Defendant Trina Rodgerss subject mischievous behavior, further as there appears to be in the evidence a sufficient basis to find a causal connection between the Plaintiffs costs and the Defendants behavior that being the contemptuous conduct related to and contributing to the otherwise unnecessary numerous redundant failed attempts

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of Process Service of Court Documents upon Trina Rodgers this subject avoidance is substantiated by the abundantly documented affidavit evidence of avoidance thereof, consequentially thereby, provided herewithin by provided affidavits; moreover, as the Plaintiff has found since year 2005 the herein named Defendant Trina Rodgers to be a habitual instigator/provocateur for that reason, one who, without reasonable and probable cause, instigates and or attempts (as in this case) relentlessly seeking to potentially discredit or cause harm to the plaintiff, perhaps by provoking the plaintiff to incidentally commit a wrong or rash action; please note that the Plaintiff does not pretend to comprehend the rationality for Defendant Trina Rodgerss behavior as this does not appear obvious, or visible, however, these herewithin mentioned situations and or circumstances has consequentially necessitated the plaintiff to, as the last in a series of related events, to reasonably File a legal MOTION to be heard by the Court requesting therefore Orders that the defendant may incur a civil liability for intentionally avoiding Process Service of the subject Court Documents. 78) That the Court abridge 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 such as the honorable court may see fit to deter this avoidance of service as has been the distinctive nature of the Defendant to date; 79) That the Court authorize all past to Date and necessarily future document Substituted Service pursuant to Rule 18.04 and/or Validation of all past to Date and necessarily future document process service pursuant to Rule 18.09 of the Rules of Court by serving a copy of any Court documents related to this Action by taping a copy of the documents contained within a addressed envelope to the front door of the residence of Trina Rodgers to be effective on the day so left. 80) 81) Defendant Trina Rodgers pay cost of the within Motion; such further and other relief that this Honorable Court may appear just;

ALL OF THIS submitted March 12, 2012. __________________ Plaintiff Andre Murray

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