Court File Number: F/C/104/09

IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: ANDR MURRAY Plaintiff, -andBETTY ROSE DANIELSKI Defendant, _____________________________________________________________________ The Plaintiffs Submission Filed by the Self Represented Plaintiff Andr Murray _____________________________________________________________________

Andr Murray The Plaintiff 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8 Telephone Number: (506) 472 - 0205 E-mail address:

Solicitor for Defendant Defendant Betty Rose Danielski E. Thomas Christie, QC CHRISTIE LAW OFFICE

Betty Rose Danielski The Defendant Apt 603 166 Carlton Street Toronto, Ont. M5A 2K5

Andrmurraynow@ gmail.com

Suite 306, 212 Queen Street Fredericton, New Brunswick Canada E3B 1A8 Tel: (506) 472 2090 Fax: (506) 472 2091 E-Mail: tclaw@nb.aibn.com

PART 1 INDEX Book 1 PAGE A. PART I INDEX _____________________________________________ii

B. PART II STATEMENT OF FACTS ____________________________ 1 C. PART III - ISSUES _____________________________________________ 14

1. Questions for the Court to answer_________________________________ 2. Introduction _________________________________________________14 3. Owner______________________________________________________19 4. Power of Attorney ____________________________________________19 5. Lien Claimant _______________________________________________21 6. Filling of Lien _______________________________________________22 7. Time for Filling ______________________________________________23 8. Action is commenced _________________________________________24 9. Service of Documents_________________________________________27 10. Order continuing the action ____________________________________30 11. Example litigation - Stare Decisis _______________________________32 12. Costs ______________________________________________________35

D. PART VI ORDERS SOUGHT________________________________36 E. SCHEDULE A LIST OF AUTHORITIES ___________________36

F. SCHEDULE B TEXT OF RELEVANT PROVISIONS OF STATUTES OR REGULATIONS ____________________________37 G. SCHEDULE C LISTED AUTHORITIES FULL DISCISION CITED______________________________________

1. Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 (CanLII)_______________49 2. J.K. Dineen v. Morris Music, 2004 NBQB 43 (CanLII)______________87

ii

B PART II STATEMENT OF FACTS

1. Plaintiff Andr Murray is the Plaintiff in this matter, as the Lien Claimant Regarding P.I.D. 01548650 and Property Account Number 00506975 as found recorded or filed in the York county Registry Office New Brunswick Plaintiff Andr Murray did cause a Claim for a Lien pursuant to the

Mechanics Lien Act, ss.20(3)(the "Act") to be registered or filed in the York county Registry Office New Brunswick April 16, 2009 #27035311. (Please see RECORD ON MOTION BOOK Filed by Plaintiff ANDRE MURRAY BOOK 1 and located within TAB 2)
2. Defendant in the matter before this Honorable Court BETTY ROSE DANIELSKI is the beneficial owner of the property as aforementioned here within (paragraph 1) subject of Claim for a Lien pursuant to the Mechanics

Lien Act, ss.20(3)(the "Act") registered or filed in the York county Registry Office New Brunswick April 16, 2009 #27035311which is
registered with Land Titles office under the title number (P.I.D. 01548650) on which stands a Residential duplex bearing both civic addresses 29 and 31 Marshall Street at the City of Fredericton, County of York and Province of New Brunswick., which is also the subject of this Statement of Claim. 3. Plaintiff Andr Murray has since the year 2005, been a Leaseholder and Residential Tenant of the above, here within (paragraph 2) mentioned duplex and has according to his Lease occupied both civic addresses for the said duplex 29 and 31 Marshall Street at the City of Fredericton, County of York and Province of New Brunswick. 4. Defendant in the matter before this Honorable Court Betty Rose Danielski has since year 2005 been the Landlord of Plaintiff Andr Murray and currently is a Leaseholder of the above mentioned duplex both civic addresses 29 and 31 Marshall Street at the City of Fredericton, County of York and Province of New Brunswick. 5. As the Plaintiff in the matter before this Honorable Court Andr Murray did file with the Court of Queens Bench Fredericton Trial Division a Form 6 Certificate of Pending Litigation (Mechanics Lien Act, R.S.N.B. 1973, c.M-6,s27) DATED at Fredericton April 21, 2009 6. The land to be charged, under the Mechanics Lien Act, R.S.N.B. 1973, c.M-6,s27 as aforementioned here within paragraph 5, is P.I.D. 01548650 at the City of Fredericton, County of York and Province of New Brunswick, which land has a duplex dwelling bearing civic addresses 29 Marshall Street, and 31 Marshall Street. 7. Plaintiff Andr Murray as indicated in Amended Statement of Claim (FORM 16C) filed with Court of Queens Bench Fredericton New Brunswick, August 21, 2009, began a periodic (year to year) Residential Tenancy, September 01, 2005 of both civic addresses 29 and 31 Marshall Street which are the subject of the here within actions.

8. Plaintiff Andr Murray is a Residential Tenant of Landlord and herein named Defendant of this Motion for a Continuance, Defendant Betty Rose Danielski. 9. Plaintiff Andr Murray has provided this Honorable Court evidence of the Leasehold agreement dated September 1, 2005. 10. Defendant Betty Rose Danielski as Landlord has received from Residential Tenant Plaintiff Andr Murray payment in full, all rent due, for both civic addresses 29 and 31 Marshall Street, Fredericton till September 01, 2010. 11. Defendant Betty Rose Danielski as Landlord of the subject Property has been an absentee Landlord for the entire Residential Tenancy period September 01, 2005 of which Tenant Andr Murray and Plaintiff in this matter was Contracted to act as caretaker of the premises. Service of Documents 12. Further to the entries found above, here within paragraph 10 Plaintiff Andr Murray intends to establish that Landlord and Title holder of the subject Property Defendant Betty Rose Danielski did in fact abandon the Property subject of this Claim for Lien as filed by Plaintiff Andr Murray. 13. Plaintiff Andr Murray has reason to believe that a hostile neighbor stealing Court Documents from the mailbox. This same neighbor has been intercepting correspondence which had been sent by courier and intended to be received by Plaintiff Andr Murray. This particular incident documented evidence of same was discovered because the neighbor who intercepted the courier was later identified by the courier service. 14. Further to the aforementioned neighbor who possesses a strong inclination for stealing Court Documents from the mailbox and or intercepting Courier Service of same. Plaintiff Andr Murray has reason to believe that the theft of other correspondence arriving at 29 and or 31 Marshall Street, over the past years, has been perpetrated by this same neighbor. The following actions have consequently been inhibiting and preventing Plaintiff Andr Murray from being able to counterclaim/defend and or respond to urgent matters both legal and financial as the situation may require. 15. Plaintiff Andr Murray has reason to believe that Defendant Betty Rose Danielski has been avoiding service of Court Documents since June, of 2009 consequentially, requiring Plaintiff Andr Murray to commission Process Server George Mallia, of CANADIAN PROCESS SERVING INC. Toronto Head Office 142 Catherine Street South, Hamilton, ON, L8N 2J8, who were finally successful in the Service of the Notice of Action and not before October 19, 2009. 16. Although Defendant Betty Rose Danielski has attempted to obfuscate the matter throughout her many affidavits and relative correspondence since April, 2009 Plaintiff Andr Murray has good reason to believe Defendant Betty Rose

Danielski has been aware of the subject Lis Pendens and Claim for Lien as early as June, 2009. 17. Since it is the position of Plaintiff Andr Murray that Defendant Betty Rose Danielski was aware of, as above aforementioned, here within paragraph 15 Registered Claim for Lien and the Certificate of Pending Litigation as early as June, 2009 Plaintiff Andr Murray can and will substantiate before this Honorable Court these allegations by the juxtaposition of the SWORN Affidavits of the various parties to this matter. 18. Plaintiff Andr Murray alleges that Defendant Betty Rose Danielski has avoided Service of his Notice of Action documents as early as June 2009 and continued avoidance until October 2009. 19. Power of Sale NOTICE OF MORTGAGE SALE for the subject property was authorized by Defendant Betty Rose Danielski only three months after Plaintiff Andr Murray Registered a Claim for Lien pursuant to the Mechanics Lien

Act, ss.20(3)(the "Act") to be registered or filed in the York county Registry Office New Brunswick April 16, 2009 #27035311.
20. The aforementioned Power of Sale as authorized by Defendant Betty Rose Danielski NOTICE OF MORTGAGE SALE for the subject property did occur July 16, 2009 without proper Notice to Registered Claim for Lien Claimant and Residential Tenant Leaseholder Plaintiff in the matter before this Honorable Court Andr Murray. 21. Immediately following the here within, aforementioned Power of Sale NOTICE OF MORTGAGE SALE which occurred July 16, 2009, Residential Tenant Leaseholder Plaintiff Andr Murray was contacted by Holders off the Mortgage, Royal Bank of Canada (hereafter RBC) and the tentative purchasers of the Mortgagee Deed a body corporate, 501376 N.B. Ltd. Requesting a renegotiation of a new Residential Lease. 22. Residential Tenant Leaseholder Plaintiff Andr Murray explained to both the Solicitors for the RBC Vendor of the Mortgagee Deed and Tentative Purchaser of the Mortgagee deed, 501376 N.B. Ltd. a body corporate, further, that Residential Tenant Leaseholder Plaintiff Andr Murray was not interested in surrendering his at this time current Lease only to renegotiate a new lease as they the Solicitors were offering. 23. Interesting note is that the Solicitor acting as the purchasing agent for the Tentative Purchaser of the (Registered against the subject) Property Mortgagee Deed, 501376 N.B. Ltd. a body corporate, whom same Solicitor acting as the purchasing agent did attend the Auction Sale NOTICE OF MORTGAGE SALE which occurred July 16, 2009 found it appropriate to mention by way of Affidavit that it was necessary to travel by aircraft to Toronto, Ontario to meet with a unnamed Client on or about July 16, 2009 and immediately following the above here within mentioned Auction Sale NOTICE OF MORTGAGE SALE Point of Interest and possible conflict may exist as Toronto, Ontario is also where Defendant Betty Rose Danielski resides.

24. Plaintiff Andr Murray verily believes that Defendant Betty Rose Danielski intends to avoid honoring her obligations pursuant to the Mechanics Lien Act,

and the Contract for work of the subject property crafted between contractor Andr Murray and Title holder Betty Rose Danielski.
25. Defendant Betty Rose Danielski continues to obfuscate the matter as to her ownership furthermore as to her being the Title Holder of the Property which is the subject of the Claim for Lien pursuant to the Mechanics Lien Act and the

Motion for Continuance which is the matter before this Honorable Court.
Plaintiff Andr Murray recognizes that Defendant Betty Rose Danielski continues to be registered with the York county Registry Office New

Brunswick as Title Holder.

26. Note: Prior to aforementioned Power of Sale NOTICE OF MORTGAGE SALE which occurred July 16, 2009, furthermore, which was a Auction Sale of an Investment Tool and called a Mortgagee Deed for the same property of which Plaintiff Andr Murray exactly three months prior became a Registered Lien Claimant. Plaintiff Andr Murray did cause a Claim for a Lien pursuant to the

Mechanics Lien Act, ss.20(3)(the "Act") to be registered or filed in the York county Registry Office New Brunswick April 16, 2009 #27035311 consequently, establishing Plaintiff Andr Murray as holding a significant
Investment Interest in the Property. 27. Notwithstanding the July 16, 2009 Auction Sale of a (Investment Instrument) Mortgagee Deed by the RBC against the subject property, furthermore, the successful Proof of Claim by Lien Claimant and Plaintiff in this matter Andr Murray of his Lis Pendens subsequently Registered and or Filed in the York county Registry Office New Brunswick April 21, 2009 #27051904, which, is also the same property and subject of this Motion for Continuance, consequently established Plaintiff Andr Murray as holding the greatest interest in the subject Property. 28. Notwithstanding, abundant evidence of Residential Tenant and Plaintiff (in this matter) Plaintiff Andr Murray possessing a year to year lease for said property Defendant Betty Rose Danielski Landlord of subject property authorized the RBC to take whatever legal action necessary to evict Tenant (Plaintiff in this matter) Plaintiff Andr Murray from both civic addresses 29 and 31 Marshall Street, Fredericton. 29. Consequently, and resulting from an EX PARTE hearing of a Motion for Orders to Vacate occurring without Proper Notice to Tenant and Plaintiff in this matter Plaintiff Andr Murray, found himself evicted from his Leasehold of 29 Marshall Street, Fredericton, furthermore same eviction occurred without advance notice or warning offered to Tenant and Plaintiff in this matter Plaintiff Andr Murray. 30. May it please this Honorable Court that the above mentioned eviction (as found in paragraph 21) occurred October 23, 2009, subsequent to the aforementioned EX PARTE hearing, of Date October 20, 2009, in the Court of Queens Bench, Moncton Trial Division.

31. May it please this Honorable Court: Andr Murray 27th day of October, 2009 filed IN THE COURT OF APPEAL OF NEW BRUNSWICK, a NOTICE OF MOTION FOR LEAVE TO APPEAL (FORM 62A) 32. Andr Murray AS INTENDED APPELLANT succeeded in obtaining a decision that there occurred a wrongful eviction of Andre Murray from his Residential Tenancy of 31 Marshall Street, Fredericton as a resulted from impugned Orders furthermore, Costs were awarded to INTENDED APPELLANT Andre Murray of $1000 against the INTENDENT RESPONDENTS Royal Bank of Canada. 33. Following the eviction of Plaintiff Andr Murray from his 29 Marshall Street, Fredericton Appellant Justice Richard Bell heard Intended Appellant Plaintiff Andr Murray DATE November 12, 2009 at Appeal Court hearing and restored Plaintiff Andr Murray to his Rightful Tenancy at 31 Marshall Street. 34. Appellant Justice Richard Bell having heard Intended Appellant Plaintiff Andr Murray DATE November 12, 2009, offered further directions that Plaintiff Andr Murray, should return to Moncton and file a Motion with the Court of Queens Bench, Moncton Trial Division for Rescinding of Orders October 20th, 2009 to Vacate 29 Marshall Street. Further, Appellant Justice Richard Bell was of the opinion that it was not his place to Rescind the impugned Orders from a lower Court. Further, that he believed it to be proper that the Justice Zol R. Dionne should have the opportunity to Rescind his own Orders. 35. May it please this Honorable Court: Plaintiff Andr Murray did on October 25, 2009 or there about, did shortly following the eviction of Andr Murray from his Residence did contact by telephone Solicitor George LeBlanc for the RBC, further, requesting that access to 29 Marshall Street be granted to Plaintiff Andr Murray that he may retrieve significant, Substantive Legal Documents, which was further explained to Solicitor George LeBlanc are relevant evidence, absolutely necessary for Plaintiff Andr Murray to schedule a examination for discovery for the matters regarding the Claim for Lien, amongst many other things. Note to this date Solicitor George LeBlanc continues to refuse access. 36. Solicitor George LeBlanc for the RBC did on October 26, 2009 or there about, did correspond by e-mail with Plaintiff Andr Murray, thereby, denying access to 29 Marshall Street. Note; to this date Solicitor George LeBlanc continues to refuse access, that Andr Murray may retrieve all relevant documents, evidence of which confirms his Claim for Lien, amongst other issues. Marked B is a copy of the email response to Andr Murrays request to access 29 Marshall Street, of Solicitor George LeBlanc obfuscating the matter and avoiding discussion of documents. ( Please see RECORD ON

MOTION BOOK 1 TAB 11 )

37. May it please this Honorable Court Plaintiff Andr Murray verily believes that Defendant Betty Rose Danielski is working together with the Solicitor George LeBlanc Royal Bank of Canada in a effort to deny Andr Murray access to his Lease Hold Property bearing civic address 29 Marshall Street.

38. May it please this Honorable Court the Honorable Justice Zol R. Dionne on hearing of a Motion brought by Solicitor George LeBlanc to Adjourn a Motion to Rescind Orders of October 20th, 2009 issued by Honorable Justice Zol R. Dionne and scheduled to be heard the same day, furthermore, Honorable Justice Zol R. Dionne comprehending the prejudice and potential harm of denying Andre Murray access to his 29 Marshall Street Leasehold did suggest that Solicitor George LeBlanc could tacitly allow Andre Murray to occupy 29 Marshall Street for the interim. This decision was left with Solicitor George LeBlanc as he had immediately refused this offer. 39. Solicitor George LeBlanc is acting on behalf of the Royal Bank of Canada the holders of a Mortgage registered against 29 Marshall Street, Fredericton. 40. Plaintiff Andr Murray on October 25, 2009 or there about, has contacted by telephone Solicitor George LeBlanc numerous times, requesting, access to possessions located 29 Marshall Street be granted to Plaintiff Andr Murray, furthermore, that he may retrieve significant substantive evidence and documents relevant and absolutely necessary for Plaintiff Andr Murray to schedule a examination for discovery for the matters within. Note to this date Solicitor George LeBlanc continues to refuse access. 41. Note to this date Solicitor George LeBlanc continues to refuse access to 29 Marshall Street. Marked B is a copy of the email response of Solicitor George LeBlanc to Plaintiff Andr Murrays request to access 29 Marshall Street.

( Please see RECORD ON MOTION BOOK 1 TAB 11 )

42. As previously mentioned Plaintiff Andr Murray has been evicted from his Leasehold Property 29 Marshall Street October 23, 2009 which to this date remains unoccupied, except for the furnishings and other private property, all of which are possessions/effects of Plaintiff Andr Murray. 43. The Plaintiff Andr Murray has been appropriately Filing with the Court of Queens Bench Motions for Orders Granting relief that provide Plaintiff Andr Murray access to his Lease hold Property 29 Marshall Street, furthermore, that he may obtain, evidentiary documents currently being withheld which are absolutely essential that Plaintiff Andr Murray may seek remedy and a fair trial. 44. May it please this Honorable Court that Plaintiff Andr Murray be granted the requested continuance and declares that to date Plaintiff Andr Murray has faithfully and dutifully attended the Court of Queens Bench, Moncton Trial Division Hearings for a Motion to the Rescinding of Orders to Vacate 29 Marshall Street. That he may retrieve his documents which are absolutely essential to establishing his legitimate Claim for Lien pursuant to the Mechanics Lien Act, ss.20(3)(the "Act") before this Honorable Court. 45. Plaintiff Andr Murray has Filed with the Court of Queens Bench, Moncton Trial Division, a Motion to Rescind Orders of October 20th, 2009 to Vacate 29 Marshall Street, Fredericton. Furthermore, Andr Murray intends to prove the Orders of October 20th, 2009 were impugned, therefore, wrongfully issued, which

had consequently resulted in a Court Hearing Ex Parte, without Proper Notice to the Defendant and in the case filed under Court File M/C/0642/09. 46. As per the above paragraph 44 these instructions received from Appellant Justice Richard Bell to INTENDED APPELLANT Andre Murray on November 12, 2009 at the COURT of APPEAL of NEW BRUNSWICK hearing with Appellant Justice Richard Bell sitting. It was decided that Andre Murray must return to the Original Court from which came the impugned Orders to evict and that Andre Murray must Motion to Rescind the Orders of October 20th, 2009 including the eviction from 29 Marshall Street, Fredericton. 47. Consequently following COURT of APPEAL of NEW BRUNSWICK hearing with Appellant Justice Richard Bell Hearings requesting Leave to Appeal furthermore, Andre Murray has followed the instructions, returning to the Court of Queens Bench, Moncton Trial Division attending on the Motion to Rescind Orders of October 20th, 2009 at the following dates all of which Solicitor George LeBlanc for the Plaintiffs RBC has managed to successfully Motion for Adjournment of same: 14 day of December 2009, January 18, 2010 March 22, 2010 48. March 12, 2010 Plaintiff Andr Murray Filed with the Court of Queens Bench, Moncton Trial Division an Officially Commissioned Transcript of Court Hearings which reveals Solicitor George LeBlanc deceiving the Honorable Court in order that he obtain admitting his deception of the Honorable Court during and leading up to the Ex Parte Orders of date October 2oth, 2009, consequently, resulting in the impugned Orders evicting Plaintiff Andr Murray from 29 Marshall Street. It appears that another scheduled hearing of a Motion to Rescind Orders, brought forward by Plaintiff Andr Murray, date March 22, 2010 has once again been adjourned. 49. The Original Documents and or Certified Copies of Original Contractual Documents which will inevitably be retrieved from Plaintiff Andr Murrays currently unoccupied Leasehold property, of civic address 29 Marshal Street are as follows: a) Contractual Agreement to furnish material and or Supplies to be used in improvement for the premises, civic address 29 and 31 Marshall Street at the city of Fredericton b) Documents establishing DEFENDANT BETTY ROSE DANIELSKI is the beneficial owner of the subject property which is registered with Land Titles office under the title number (P.I.D. 01548650) and civic address 29 31 Marshall Street at the City of Fredericton, County of York and Province of New Brunswick., which is also the subject of this Statement of Claim.

c) Documents establishing Plaintiff Andr Murray is the tenant and sole resident of the duplex dwelling, bearing civic addresses 29 Marshall Street and 31 Marshall Street at the City of Fredericton, County of York and Province of New Brunswick, which is the subject property of this Statement

of Claim and the FORM 2 CLAIM FOR LIEN [Mechanics Lien R.S.N.B.1973 c.M-6,ss.20(3)] registered or filed in the York County Registry office, New Brunswick April 16, 2009 at time 15:08 number 27035311. The tenancy of Plaintiff Andr Murray at civic address 29-31 Marshall Street at the City of Fredericton, County of York and Province of New Brunswick is a Periodic Tenancy, beginning September 01, 2005 and is to run from year to year according to the (The Residential Tenancies Act, Acts of New Brunswick, 1975,
c.R-10.2, s.9)

d) Documents establishing the Plaintiff Andr Murray obtained an exclusive and irrevocable right to first refusal and first option to purchase from DEFENDANT BETTY ROSE DANIELSKI subject property, which is identifiable as and registered with Land Titles office under the title number (P.I.D. 01548650) And civic address 29 Marshall Street and or 31 Marshall Street at the City of Fredericton, County of York and Province of New Brunswick. e) Documents establishing A Power of Attorney appointed by DEFENDANT BETTY ROSE DANIELSKI, who acted as agent on behalf of DEFENDANT BETTY ROSE DANIELSKI, and did on or about June, 2005 negotiate the terms of the Contractual Agreement with Plaintiff Andr Murray to provide labour and to furnish material and or supplies to be used in improvement for the premises, civic address 29 Marshall Street and or 31 Marshall Street at the City of Fredericton. f) Documents establishing and identifying a Power of Attorney appointed by DEFENDANT BETTY ROSE DANIELSKI, listed as Defendant John Doe 2 in the AMENDED STATEMENT OF CLAIM (FORM 16C) FILED with COURT of QUEENS BENCH, FREDRICTON TRIAL DIVISION AUGUST 21 2009 is unknown at this time. who acted as agent on behalf of DEFENDANT BETTY ROSE DANIELSKI, and did on or about June, 2005 negotiate the terms of the Contractual Agreement with Plaintiff Andr Murray to provide labour and to furnish material and or supplies to be used in improvement for the premises, civic address 29 Marshall Street and or 31 Marshall Street at the City of Fredericton. g) Correspondence addressed to Plaintiff Andr Murray at his place of residence civic address 29 Marshall Street and or 31 Marshall Street. Fredericton, NB has received by Canada Post (as recently April, 2009) written correspondence, addressed to Plaintiff Andr Murray, and hand written from the DEFENDANT BETTY ROSE DANIELSKI. 50. On June 2005 the Plaintiff Andr Murray as Contractor and the Defendant Betty Rose Danielski as Titleholder entered into a Continuing Contractual Agreement for Maintenance and Property Management services of duplex residence, civic address 29 Marshall Street and 31 Marshall Street, Fredericton, New Brunswick. 51. Renovations in accordance with the signed Contractual Agreement for Maintenance and Property Management services of duplex residence, civic address 29 Marshall Street and 31 Marshall Street, Fredericton, New Brunswick

signed June 2005 commenced July 2005 at civic address 29 Marshall Street and
31 Marshall Street at the expense of Plaintiff Andr Murray. 52. Plaintiff Andr Murray did faithfully and according to the terms of the subject contracts pay all costs for the repairing, improving and maintenance of duplex residence, civic address 29 Marshall Street and 31 Marshall Street, Fredericton, NB beginning July 2005 and continues to this date. 53. The Plaintiff Andr Murray, has not at any time, since the beginning of the subject contracts, as crafted by Continuing Power of Attorney for Property and appointed by Betty Rose Danielski, ever failed to perform as contracted and consequently has performed honorably. 54. The terms of the contract referred to in paragraph 1 of the Amended Statement of Claim, specifically state, that on the fourth year of the contract the Plaintiff Andr Murray may request of the beneficial owner DEFENDANT BETTY ROSE DANIELSKI to perform the transfer of the title from the name of DEFENDANT BETTY ROSE DANIELSKI and into the name of PLAINTIFF ANDR MURRAY.

(Please see RECORD ON MOTION BOOK 1 TAB 6 )

55. Failure of the DEFENDANT BETTY ROSE DANIELSKI to perform transfer of the title, according to terms of contract as previously stated in paragraph 16 of the Amended Statement of Claim, when requested by Plaintiff Andr Murray may cause all costs and expenses to date, furthermore, which had been to the benefit of DEFENDANT BETTY ROSE DANIELSKI and or the estate of DEFENDANT BETTY ROSE DANIELSKI and suffered by Plaintiff Andr Murray to become payable retroactive to July, 2005 and immediately due.

(Please see RECORD ON MOTION BOOK 1 TAB 6 )

56. Plaintiff Andr Murray under the Mechanics Lien Act claims an $80,000 lien upon the estate of Defendant Betty Rose Danielski, P.I.D. 01548650, Property account number 00506975, civic address 29 and 31 Marshall Street, Fredericton, County of York and Province of New Brunswick. and the following instrument was certified on the 16th day of April, 2009, as registered or filed in the York County registry Office, New Brunswick, and assigned this # 27035311

(Please see RECORD ON MOTION BOOK 1 TAB 2 )

57. Marked C is a copy of provided documents, evidence of appointment of a Power of Attorney on behalf of Defendant Betty Rose Danielski. Note: The same Power of Attorney and signing authority for the Lease for subject property and other significant legal documents which have yet to be recovered from 29 Marshall Street, Fredericton.

( Please see RECORD ON MOTION BOOK 1 TAB 12 )

58. On January 8, 2010, Plaintiff Andr Murray did attend the office location of Service New Brunswick, on Queen Street, Fredericton, N B. On this occasion did cause to be print Parcel Information for PID number 1548650 (4 pages). The noted civic address for these documents is officially recorded as 29 Marshall

Street, Fredericton. (Is provided and marked as Exhibit D. ( Please see

RECORD ON MOTION BOOK 1 TAB 16 )

59. On January 8, 2010, Plaintiff Andr Murray, did attend the office location of Service New Brunswick, Queen Street, Fredericton, N B. On this occasion Plaintiff Andr Murray did cause to be printed Property Information Report for PID number 1548650 (2 pages). The noted civic address for these documents is officially recorded as both 29 Marshall Street, and 31 Marshall Street, Fredericton, New Brunswick. (is provided and marked as Marked Exhibit D.

Please see RECORD ON MOTION BOOK 1 TAB 16 )

60. Property information as provided by Service New Brunswick, Land Title Office, Queen Street, Fredericton, N B. and as referred to in paragraphs 2 and 3 of Plaintiff Andr Murrays Affidavit 2, indicate the owner as Defendant Betty Rose Danielski. 61. Plaintiff Andr Murray, On January 8, 2010, did attend the Service New Brunswick, office location on Queen Street, Fredericton, N B. and did search the PID: 01548650 which is the object of Plaintiff Andre Murrays Claim for Lien and the subject of this Motion before this Honorable Court. The PID Number 01548650 referenced a Registered Deed including civic 29 Marshall Street, and 31 Marshall Street, Fredericton and indicates Defendant Betty Rose Danielski as the current Title holder. (A Copy of the subject Deed is provided and marked as Exhibit E.

Please see RECORD ON MOTION BOOK 1 TAB 17 )

62. Plaintiff Andr Murray did receive, on or about the 11th day of November, 2009, by way of Xpresspost Canada Post the following correspondence. The subject correspondence was sent from CANADIAN PROCESS SERVING INC. and contained within the document package was a letter from Process Server George Mallia, of CANADIAN PROCESS SERVING INC. Toronto Office, Dated November 8, 2009, confirming by way of his Affidavit of Service the Service of: Notice of Action Statement of Claim, Amended Statement of Claim, Claim for Lien Certificate of Pending Litigation.

(A Copy of the cover letter is provided and marked as Exhibit F.

Please see RECORD ON MOTION BOOK 1 TAB 18 )

63. Plaintiff Andr Murray did receive by Canada Post correspondence from

CANADIAN PROCESS SERVING INC., Head Office 142 Catherine Street South, Hamilton, ON, L8N 2J8, containing Invoice, dated November 23, 2009, regarding services rendered, addressed to Plaintiff Andr Murray, 29 Marshall Street Fredericton New Brunswick, R3A 4J8.

10

(The subject invoice is provided and marked as Exhibit G. Please see RECORD ON MOTION BOOK 1 TAB 19 )
64. On October 20, 2009, Plaintiff Andr Murray did send by UPS Canadian

Services, UPS Waybill / Tracking number E838 688 798 9, a package containing:

CLAIM FOR LIEN, dated April 16, 2009, CERTIFICATE OF PENDING LITIGATION dated April 21, 2009, (FORM 16 B) NOTICE OF ACTION dated April 21, 2009, (FORM 16C) STATEMENT OF CLAIM dated May 20, 2009, (FORM 16C) AMENDED STATEMENT OF CLAIM dated August 21, 2009

Senders name Murray Andr 29 Marshall Street Fredericton, NB, E3A 4J8 to Defendant Betty Rose Danielski, 166 Carleton Street APT 603, Toronto ON, M5A 2K5. (The subject UPS Waybill / Tracking number E838 688 798 9 is

marked Exhibit H. Please see RECORD ON MOTION BOOK 1 TAB 20 )

65. Plaintiff Andr Murray did access the UPS.com and using UPS Package

Tracking number E838 688 798 9, did track shipments of the following Packages and confirm delivery:
SHIPMENT TO: Defendant Betty Rose Danielski, 166 Carleton Street APT 603, Toronto ON, M5A

The receivers Signature is evidenced by the UPS Digital signature printout. The delivery Notification states According to out records 1 parcel was delivered on 10/21/09 at 10:10A.M., and left at RESIDENTIAL. The shipment was signed for by BETTY as follows: The subject UPS Package delivery notification is marked Exhibit I. ( Please see RECORD ON MOTION BOOK 1 TAB 21 )
66. On October 20, 2009, Plaintiff Andr Murray did send by UPS Canadian

Services, UPS Waybill / Tracking number E838 688 792 5, a second package containing: CLAIM FOR LIEN, dated April 16, 2009, CERTIFICATE OF PENDING LITIGATION dated April 21, 2009, (FORM 16 B) NOTICE OF ACTION dated April 21, 2009, (FORM 16C) STATEMENT OF CLAIM dated May 20, 2009, (FORM 16C) AMENDED STATEMENT OF CLAIM dated August 21, 2009
Senders name A Murray 29 Marshall Street Fredericton, NB, E3A 4J8 to Defendant Betty Rose Danielski, Fudger House (Care of) 439 Sherbourne St., Toronto ON, M4X 1K6.

11

The subject UPS Waybill / Tracking number E838 688 792 5 (is provided and marked as Exhibit J.

Please see RECORD ON MOTION BOOK 1 TAB 22 )

67. Plaintiff Andr Murray did access the UPS.com and using UPS Package

Tracking number E838 688 792 5, did track shipments of the following Packages and did confirm the delivery by these means:
SHIPMENT TO: Defendant Betty Rose Danielski, Fudger House Care of 439 Sherbourne St., Toronto ON, M4Y.

The receivers Signature is evidenced by the UPS Digital signature printout. The delivery Notification states that According to our records 1 parcel was delivered on 10/21/09 at 11:42 A.M., and left at RECEPTION. The Shipment was signed for by CELESTIAL as follows: (The subject UPS Package delivery notification is marked Exhibit K. Please see RECORD ON MOTION BOOK 1 TAB 23 )
68. On October 31, 2009 UPS Canadian Services did send to Plaintiff Andr Murray a 3 page Delivery Service Invoice, Invoice Number 000010667A449, Shipper Number 10667A, regarding the Services charges for delivery of the two aforementioned (as referred to in paragraphs 51 to 54) UPS packages delivered to Defendant Betty Rose Danielski. (A copy of the invoice is marked Exhibit L.

Please see RECORD ON MOTION BOOK 1 TAB 24 )

69. On or about the first part of April, 2009 Plaintiff Andr Murray did receive a letter signed by Defendant Betty Rose Danielski, addressed to Plaintiff Andr Murray at 29 Marshall Street. (A copy of the subject envelope is provided and marked Exhibit M.

Please see RECORD ON MOTION BOOK 1 TAB 25 )

70. Plaintiff Andr Murray did receive a correspondence letter delivered by Canada Post signed by Defendant Betty Rose Danielski, dated April 1, 2009 addressed to Plaintiff Andr Murray at 29 Marshall Street. (Contents of the letter (a copy) is provided and marked Exhibit N.

Please see RECORD ON MOTION BOOK 1 TAB 26 )

71. Plaintiff Andr Murray did sign a FORM 6 STANDANRD FORM OF LEASE (The Residential Tenancies Act, Acts of New Brunswick, 1975, c.T-10.2, s.9) Dated September 1, 2005. The Lease is for the duplex premises bearing both civic address 29 and 31 Marshall Street, Fredericton, New Brunswick, E3A 4J8. The subject lease is a year to year lease signed by Richard Boileau Continuing Power of Attorney for Property and agent for Defendant Betty Rose Danielski. (A copy of this Lease is provided and marked as Exhibit O.

Please see RECORD ON MOTION BOOK 1 TAB 27 )

72. Plaintiff Andr Murray did discover date April 21, 2009 Defendant Betty Rose Danielski had filed a REVOCATION OF POWER OF ATTORNEY dated May

12

29th, 2008, with the Fredericton Property Registry Office. The Revocation of power of attorney document revoked the following: i. ii. A Specific Power of Attorney given by me to Richard MacGregor, of Fredericton, New Brunswick, and dated April 24, 2003. A Continuing Power of Attorney for Property given by me to Richard Boileau, of Fredericton, New Brunswick, and dated November 14, 2002.

The subject Revocation of power of attorney document is provided: (Please see RECORD ON MOTION BOOK 1 TAB 28 and marked as Exhibit P). 73. Plaintiff Andr Murray was served, by hand, the 23rd day of October, 2009, at his residence 31 Marshall Street, Fredericton, an Order from the Court of Queens Bench, Moncton Trial Division, to vacate, the premises 29 Marshall Street, Fredericton, forthwith, pursuant to an Order dated October 20, 2009. The subject Court Order is marked Exhibit Q.

( Please see RECORD ON MOTION BOOK 1 TAB 29 )

74. Regarding the eviction from the premises 29 Marshall Street, Fredericton pursuant to an Order dated October 20, 2009 occurring 23rd day of October, 2009, an Order from the Court of Queens Bench, Moncton Trial Division, to vacate, forthwith. May it please this Honorable Court Plaintiff Andr Murray was indeed, forcibly removed from his residence at 29 Marshall Street, Fredericton, before he could remove his belongings and to this date his belongings are still on the premises of 29 Marshall Street Fredericton

13

C PART III - ISSUES 1. Questions for the Court to answer. A. Should the Court grant a Continuance of the Mechanics Lien Claim? B. Should the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of Court, C. Should the Defendant pay costs of the within Motion

2 Introduction In this motion, the plaintiff Andr Murray asks for an order under Section 52.1(b) of the Mechanics Lien Act to continue a Mechanics Lien action that was started on April 21st, 2009. It is the view of Plaintiff Andr Murray, one of the reasons why the action in this case has been delayed is primarily, that the Defendant Betty Rose Danielski has not demonstrated any discernable interest in performance of her obligations according to the contractual agreements drawn on her behalf, June, 2005 or there abouts, nor does Defendant Betty Rose Danielski appear by her actions and or lack thereof, behave in a sincere manner indicative of a Party interested in pursuing remedy, pursuant to the Mechanics Lien Act. The contractual agreements which where agreed to, by both parties, subsequent to this Mechanics Lien Act action, as early as July, 2005, have been negotiated to Defendant Betty Rose Danielskis specifications, furthermore, negotiated by her Continuing Power of Attorney for Property Mr. R. Boileau and evidentially entirely to Defendant Betty Rose Danielskis financial benefit, as early as July 2005. Further, these above, aforementioned contracts between Defendant Betty Rose Danielski and Plaintiff Andr Murray, furthermore, the undertakings and or obligations of Plaintiff Andr Murray, as found within said contracts, have, to date, on the part of Plaintiff and Contractor Andr Murray been entirely fulfilled. As a Residential Tenant of the subject property Andr Murray on the one hand has reportedly, (according to Defendant Betty Rose Danielskis own Affidavit) notwithstanding, the Royal Bank of Canada, Bank Teller Documented, cash deposit receipt history Plaintiff Andr Murray evidentially has, in an unintentional manner, paid for Defendant Betty Rose Danielskis entire, alleged, Mortgage payment obligations from Sept, 2005 up to and including September, 2010. 14

Defendant Betty Rose Danielski allegedly elected to go to foreclosure procedures in the year of 2009, only three Months after Plaintiff Contractor Andr Murray registered a Claim for Lien against the subject property. Furthermore, the aforementioned foreclosure procedures in the year of 2009 occurred entirely without Notice to Registered Claim for Lien Claimant Andr Murray, Plaintiff in the matter pursuant to the Mechanics Lien Act, to be heard, before the Honorable Court. Following the April, 2009 Filing and Registering of a Claim for Lien by Plaintiff Andr Murray against the estate of Defendant Betty Rose Danielski, furthermore, Defendant Betty Rose Danielski did consequentially, authorize the alleged Mortgagee, the Royal Bank of Canada, furthermore, Registered Titleholder Betty Rose Danielski evoked the Power of Sale Process, that the property, which is the subject of Plaintiff Andre Murrays Claim for Lien be sold thereby extinguishing Plaintiff Andre Murrays Registered Claim for Lien. May it please this Honorable Court; the reason for this Motion for a Continuance to be granted when heard heard before this Honorable Court, furthermore, will hear evidence that Defendant Betty Rose Danielski instructed that the Mortgagee of subject property, the RBC should, without delay, cause the subject property be transferred from the estate of Defendant Betty Rose Danielski. Plaintiff Andr Murray does acknowledge Defendant Betty Rose Danielskis Affidavits including Exhibits found, there within, offering or alluding to the existence of a Mortgage between the Mortgagee RBC and Defendant Betty Rose Danielski allegedly beginning year 2000. Further, that the said Mortgage was ending at the termination and or Maturity date of 2005. Further, Plaintiff Andr Murray has no confirmation of a renegotiated term of the alleged initial Mortgage (beginning year 2000), no confirmation it ever existed in the first place, however, as such, may or may not be the case, Plaintiff Andr Murray seeks confirmation of the above contentions Regarding the Mortgage, made by Defendant Betty Rose Danielski. The second reason for the delay, another one of the reasons, why the action in this case has been delayed is primarily, that the Defendant Betty Rose Danielski, as Plaintiff Andr Murray verily believes to be true, is that, the Plaintiffs issues and or Claims for Lien against the Estate of Defendant Betty Rose Danielski are likely being handled by (The Defendants covert agents, either implied or understood, thought not directly expressed) Professionals skillful in influencing or controlling others to their own advantage, who, to date, have achieved their desired end and

15

sidetracked the legitimate Claim for Lien of Plaintiff Andr Murray by the actual Filing (5 Months following Andr Murrays Registration of Claim for Lien) Of an Originating Process in the Court of Queens Bench, Moncton Trial Division; a NOTICE of ACTION September 18, 2009 by the Solicitor for the alleged Mortgagee and Plaintiff (in that matter)the RBC in the above here within mentioned Court of Queens Bench, Moncton Trial Division File including a STATEMENT of CLAIM erroneously claiming: Unjust Enrichment Wrongful Conversion of Property Occupying the Property without permission or consent. The Plaintiff, in this matter, the RBC, having been heard October 20, 2009, in Court of Queens Bench, Moncton Trial Division, was, instead of Proving Proof of Claim to the numerous erroneous Claims found in their supporting STATEMENT of CLAIM Filed September 18, 2009 for the NOTICE of ACTION, they were instead seeking, by way of MOTION an Order to Vacate the premises, bearing Civic address 29 Marshall Street, Fredericton. Civic address 29 Marshall Street, Fredericton has always been Andr Murrays primary home and home office, which, includes all Andr Murrays fiscal records, furthermore, 29 Marshall Street, Fredericton has always been the Plaintiff Andr Murrays practical workspace/office space environment. Until October 23, 2009 all external contact, concerning public or personal contact, had been directed by Plaintiff Andr Murray to respond or correspond to Civic address 29 Marshall Street, Fredericton, instead of his alternative residence at 31 Marshall Street. Defendant Betty Rose Danielski had good reason to comprehend this fact, as this was the address Defendant Betty Rose Danielski always chose to correspond with Plaintiff Andr Murray by Canada Post. Furthermore, 29 Marshall Street was the Residence of Defendant Betty Rose Danielski prior to her abandonment of the property in the year 2001. Plaintiff Andr Murray has reason to believe, there exists a type of secret agreement, furthermore, Plaintiff Andr Murray has undeniable evidence of a cooperative environment transpiring between the parties calling themselves Mortgagee RBC, and the Mortgagor Defendant Betty Rose Danielski including the recent Tentative Purchaser of the Auctioned Mortgagee Deed July 16, 2009 (an investment instrument an encumbrance of the subject property).

16

May this please the Honorable Court: Plaintiffs in a Originating Process of September 18, 2009 as aforementioned and found here within, have to date, further, rather than providing Proof of Claim to their many erroneous statements of claim the Plaintiffs instead chose to Motion the Moncton Trial Division for Orders to Vacate Andr Murray from his Residence at 29 Marshall Street, Fredericton, N.B. The Plaintiffs who are allegedly Mortgagees of different degrees of interest, of the subject property, which is the same subject property of Plaintiff Andr Murrays Claim for Lien, have to date, succeeded with the Motion for Orders to Vacate Andr Murray from his Residential Tenancy of civic address 29 Marshall Street, Fredericton, on a hearing heard without Proper Notice EX PARTE - by the Honorable Justice Zol R. Dionne at the Court of Queens Bench, Moncton Trial Division October 20, 2009. October 23, 2009 Sheriffs, without prior Notice, arrived at 31 Marshall Street with impugned Orders in hand signed by the Honorable Justice Zol R. Dionne at the Court of Queens Bench, Moncton Trial Division October 20, 2009 that Andr Murray shall be evicted, forthwith from 29 Marshall Street, Fredericton. The eviction from 29 Marshall Street on October 23, 2009 was unpleasantly direct and decisively malicious, revealing a desire to harm Tenant Andr Murray should the opportunity present itself. The action included verbal threats and unprovoked Battery. 31 Marshall Street, Fredericton, on October 23, 2009 had the door literally broken, with the door knob broken entirely off the door, furniture adjacent to door knocked over, including the widow drapes of the immediate area torn off the wall. All door locks, where changed for both 29 Marshall Street and 31 Marshall Street of this duplex and Andre Murray was physically directed with force to leave the premises without access to his personal possessions. Evil, harmful, often untrue statements about Plaintiff Andr Murray which are revealing of Defendant Betty Rose Danielskis malicious intent appear to have affected the judgments of those attending the eviction of Andr Murray.

Plaintiff Andr Murray leading up to the above here within mentioned eviction, has suffered damages to his reputation, falsely charged with malicious intent by Defendant Betty Rose Danielski through unrelenting misrepresentation. This

17

occurred blatantly and continuously as of April 2009 and covertly prior to and leading up to that date. Plaintiff Andr Murray has been defamed numerous times over the past year by Defendant Betty Rose Danielski, by the many aspersions, the unfavorable charges or insinuations against his character. The deliberate and unrelenting vicious defamation of Plaintiff Andr Murray by Defendant Betty Rose Danielski has had the result of humiliation and bringing disgrace. This behavior is likely legitimate grounds for a lawsuit. Plaintiff Andr Murray cannot account for the extreme prejudice with which the Sheriffs enforced a rather mundane Order such as an Eviction Order other than to point at the slanderous characterization of Plaintiff Andr Murray by Defendant Betty Rose Danielski which appears to have conditioned the environment. Peripheral information is information that is not central to a Plaintiffs current task, but provides the reader the opportunity to learn more, to better comprehend, or to keep track of the important issues. May it Please this Honorable Court Plaintiff Andre Murray has provided by way of fax correspondence a Letter addressed to the Defendant for Consent to a Continuance of the Mechanics Lien Action. In my view, once an action has been set down as contemplated by Section 52.1(1)(a) or the action has been continued under Subsection 52.1(b), the one year time limit no longer applies. After either of these events occurs, the timeliness of proceeding with the action is in the hands of the Court and can be dealt with in accordance with the Rules of Court. Rule 1.03 of the Rules of Court states:

(2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits.

18

Parties 3. Owner Owner New Brunswick Mechanics' Lien Act defines owner as follows: New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 "owner" means a person having an estate or interest in land upon or in respect of which work is done or material is furnished at his request, express or implied, and (a) (b) (c) (d) upon his credit, upon his behalf, with his privity and consent, or for his direct benefit,

and all persons claiming under him whose rights are acquired after the beginning of the work or the furnishing of the material in respect of which a lien is claimed; The New Brunswick Mechanics' Lien Act defines owner as a person having an estate or interest in land upon or in respect of which work is done or material is furnished at his request, express or implied. The holder of Title to the 29 Marshall Street and 31 Marshall Street Property in question is Defendant Betty Rose Danielski as evidence by the Deed registered at the Land Titles office. ( see RECORD ON MOTION BOOK 1 TAB 17 ). Also view a copy of the 6 page Service New Brunswick Print of Parcel Information / Property Information report, dated Aug 8, 2009 which lists the Property Owner to be Defendant Betty Rose Danielski ( see RECORD ON MOTION BOOK 1 TAB 16)

4. Power of Attorney Maxims Nemo dat quod non habit. One cannot grant what one does not have

19

Injura servi dominum pertingit. The servants wrong doing reaches the master. The master is liable for injury done by his servant. Qui facit per alium facit per se A person who acts through another acts as himself. The acts of an agent are considered the acts of the principle. Qui per alium facit per seipsum facere videtur A person who does anything through another is considered as doing it himself Qui facit per alium facit per se He who acts through another is deemed to act in person, i.e., a principal is liable for the acts of his agent. Nemo potest facere per alium, quod per se non potest No one can do through another what he cannot do himself. A power of Attorney for property was created November 14, 2002, to Richard Boileau by Title Holder Defendant Betty Rose Danielski. This agency power is evidenced by a CONTINUING POWER OF ATTORNEY FOR PROPERTY document, dated November 14, 2002 ( see RECORD ON MOTION BOOK 1 TAB 12 ). Acting as agent for Defendant Betty Rose Danielski, Power of Attorney Richard Boileau, signed a Residential Tenancies lease with Defendant Plaintiff Andr Murray, dated September 1, 2005 ( see RECORD ON MOTION BOOK 1 TAB 27) regarding Tenancy at 29 Marshall Street and 31 Marshall Street, Fredericton New Brunswick. Acting as agent for Defendant Betty Rose Danielski, Power of Attorney Richard Boileau, signed the contracts authorizing improvements made to the property at 29 Marshall Street and 31 Marshall Street, Fredericton New Brunswick. Furthermore the following excerpt of a Power of Attorney description is given at the following address: http://www.duhaime.org/LegalDictionary/P/PowerofAttorney.aspx Power of Attorney A document which gives a person the right to make binding decisions for another, as an agent. A sample of a power of attorney is given in the recent case of Egli v Egli. In that case, the judge defines a power of attorney as: "By a power of attorney, one individual appoints another to act for him or her." In Re McCarty, Justice Middleton adopted these words:

20

"A power of attorney in its strict acceptation, being an authority to the attorney to do certain specific acts in the name of, and as personally representing the party granting the power, it seems necessarily to follow from a consideration of the nature of such a power that it must determine with the death of the donor." The person signing the power of attorney (POA) is usually referred to, in law, as the donor and the person that would exercise the power of attorney, the attorney or the donee. However, some jurisdictions prefer the word principal, in deference to the law of agency of which POAs are a species. 5. Lien Claimant New Brunswick Mechanics' Lien Act defines a lien claimant as follows: New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6: "contractor" means a person contracting with, or employed directly by, the owner or his agent to do work upon or to furnish material for an improvement, but does not include a labourer; "labourer" means a person employed for wages in any kind of labour, whether employed under a contract of service or not; "wages" means money earned by a labourer for work done, whether by time or piece work or otherwise; "work" includes the doing of work and the performance of services upon or in respect of an improvement, and also includes the breaking of any land or the clearing of timber or scrub. 4(1) A person who

(a) does, or causes to be done any work upon or in respect of an improvement, or (b) furnishes any material to be used in an improvement,

for an owner, contractor or sub-contractor has, subject as herein otherwise provided, a lien for wages or for the price of the work or material, as the case may be, or for so much thereof as remains owing to him, upon the estate or interest of the owner in the land in respect of which the improvement is

21

being made, as such estate or interest exists at the time the lien arises, or at any time during its existence. The Plaintiff Andr Murray has contracted with agent for Defendant Betty Rose Danielski, Richard Boileau to provide work, labour and material which improved the property at 29 Marshall Street and 31 Marshall Street, Fredericton New Brunswick, as described in the Claim for Lien. 6 FILING OF LIEN Plaintiff Andr Murray did file on April 16, 2009 at 15:08 a FORM 2 CLAIM FOR LIEN, dated April 16, 2009 at the York County Registry Office, New Brunswick. The Deputy Registrar Evelyn Keddy certified the registration of the Claim for Lien document and assigned the file number 27035311. ( see RECORD ON MOTION BOOK 1 TAB 2) New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6:

FILING OF LIEN 20(1) A claim of lien upon any land or interest therein may be filed in the proper registry office. The proper registry office is defined further in New Brunswick Mechanics' Lien Act as follows: "proper registry office" when used with reference to the filing, discharging or vacating of a claim of lien or other instrument or document, or of any dealing, relating to or affecting any land, means the registry office of the county in which the land is situate; The Plaintiff Andr Murray asserts that the Claim for lien filed with the York County Registry Office New Brunswick on April 16, 2009 at 15:08 a FORM 2 CLAIM FOR LIEN, complies and fulfills the required form. New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 20(2) (a) (i) A claim of lien shall state the name and address of the lienholder,

(ii) the owner, or the person whom the lienholder or his agent believes to be the owner of the land to be charged, and 22

(iii) the person for whom, and upon whose credit, the work was or is to be done, or the material was or is to be furnished; (b) the date upon which the last work was done or the last material furnished, or, where the claim is filed before the work or furnishing of material is completed, the time or period within which the same is to be done or furnished; (c) a short description of the work done, or to be done, or of the material furnished, or to be furnished; (d) the sum claimed as due or to become due;

(e) a description, sufficient for identification, of the land or interest therein to be charged; and (f) the date of expiry of the period of credit, if any, given by the lienholder. 20(3) A claim of lien may be made in one of the forms prescribed by regulation and shall be verified by the affidavit of the lienholder or of his agent or assignee having personal knowledge of the matters required to be verified, which affidavit may be in the form prescribed by regulation. 20(5) Every claim of lien shall show an address for service on the lienholder. 22(1) Substantial compliance with sections 20 and 21 is sufficient; and no lien is invalidated by failure to comply with any requirement of those sections unless in the opinion of the judge who tries the action, the owner, contractor, sub-contractor, mortgagee, or some other person is prejudiced thereby, and then only to the extent to which he is so prejudiced. 23(1) The Registrar, upon receipt of the proper fee shall file a claim of lien describing it as a "Mechanics' Lien" and shall index the claim of lien in a book to be kept and entitled "Mechanics' Lien Index" and the lien shall appear as an encumbrance against the land or the estate or interest in land therein described. 7 Time for Filling The Plaintiff Andr Murray asserts that the Claim for lien filed with the York County Registry Office New Brunswick on April 16, 2009 at 15:08 a FORM 2 CLAIM FOR LIEN, complies with and is within the time limits set by the New Brunswick Mechanics' Lien Act.

23

The New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 states as follows: 24(1) A claim of lien for wages may be filed at any time before the expiration of thirty days from the doing of the last work for which the wages are owing and the lien claimed. 24(2) A claim of lien for services may be filed at any time before the expiration of thirty days from the completion of the services. 24(3) A claim of lien for material may be filed at any time before the expiration of sixty days from the furnishing of the last material the price of which is claimed for. The subject Claim for lien states the date upon which the last work and materials were furnished was on or about April 14, 2009. The Date the Claim for Lien was filed was April 16, 2009. The difference between these two dates is 2 days, which is well within the thirty days minimum filing time for wages and for services as well as the sixty day minimum filing time for material. 8 Action is commenced The subject Lien Action was commenced According to the New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 27 which reads as follows: 27 Every lien in respect of which a claim of lien has been filed ceases to exist on the expiration of ninety days from the filing of the claim of lien or after the expiry of any period of credit mentioned in the claim of lien unless, in the meantime, an action is commenced in which the lien may be enforced, and a certificate of pending litigation in respect thereof issued from the Court in the form prescribed by regulation is registered in the proper registry office.

The Plaintiff Andr Murray asserts that the CERTIFICATE OF PENDING LITIGATION Court File Number F/C/104/09 filed with the York County Registry Office New Brunswick on April 21, 2009 at 13:22 complies with and is within the ninety days time limits set by section 27 of the New Brunswick Mechanics' Lien Act. The time calculation in question is 5 days, between the April 16, 2009 filling of the Claim for Lien and the April 21, 2009 filling of the Certificate of Pending Litigation. The Deputy Registrar Diana L Tucker certified the registration of the Certificate of Pending Litigation document and assigned the file number 27051904. ( see RECORD ON MOTION BOOK 1 TAB 3) New Brunswick Rules of Court state as follows:

24

16.01 How Proceedings Commenced (1) Unless provided otherwise by an Act, all civil proceedings, except a counterclaim against a plaintiff only or a cross-claim, shall be commenced by issuing an originating process. (2) An originating process is issued when the original, a copy, and the filing fee prescribed by these rules (a) are delivered to the office of the clerk of the judicial district in which the proceeding is to be commenced, or (b) are sent by prepaid registered mail or prepaid courier addressed to the clerk of the judicial district in which the proceeding is to be commenced. 16.03 By Statement of Claim or Notice of Action (1) Unless provided otherwise by these rules, the originating process for the commencing of a proceeding shall be a Notice of Action with Statement of Claim Attached (Form 16A). (2) Where there is insufficient time to prepare a Statement of Claim, an action may be commenced by issuing a Notice of Action (Form 16B) upon which shall be endorsed a brief statement of the nature of the claim; but, unless ordered otherwise, the plaintiff shall file his Statement of Claim (Form 16C) within 30 days of the issuing of the Notice of Action. (3) The Notice of Action and Statement of Claim shall be served together in accordance with Rule 16.08(2). 16.07 Clerk on Receipt of Originating Process Upon receiving an originating process, a copy, and the filing fee prescribed by these rules, the clerk shall (a) assign to the originating process a Court file number, (b) enface on the original and copy the Court file number and the date of issue, (c) return the original to the plaintiff or applicant, or his solicitor, and (d) retain and file the copy.

25

The Plaintiff Andr Murray asserts that according to New Brunswick Rules of Court, Rule 16.03(2) the Signed and dated April 21, 2009 (FORM 16 B) NOTICE OF ACTION Court File Number F/C/104/09 filed April 21, 2009 with the Court of Queens Bench Trial Division of New Brunswick, is the action specified in the New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, section 27 as an action commenced in which the lien may be enforced. ( see RECORD ON MOTION BOOK 1 TAB 4)

The Plaintiff Andr Murray followed the above mentioned Notice of Action according to the New Brunswick Rules of Court, Rule 16.03(2) by filling the Signed and dated May 20, 2009 (FORM 16C) STATEMENT OF CLAIM Court File Number F/C/104/09 filed May 20, 2009 with the Court of Queens Bench Trial Division of New Brunswick. ( see RECORD ON MOTION BOOK 1 TAB 5) The Plaintiff Andr Murray did amend the (FORM 16C) STATEMENT OF CLAIM according to the following New Brunswick Rules of Court: New Brunswick Rules of Court
16.09 Striking Out or Amending An originating process which is not a pleading may be struck out or amended in the same manner as a pleading. 27.10 (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,

How Amendments Made 27.10 (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.

The Plaintiff Andr Murray followed the above mentioned Statement of Claim according to the New Brunswick Rules of Court, Rule 16.09, 27.10 (2)(a), 27.10 (3) by filling the Signed and dated August 21, 2009 (FORM 16C) AMENDED STATEMENT OF CLAIM Court File Number F/C/104/09 filed August 21, 2009 with the Court of Queens Bench Trial Division of New Brunswick. ( see RECORD ON MOTION BOOK 1 TAB 6)

26

9 Service of Documents The following are the relevant New Brunswick Rules of Court, regarding Service:
16.08 Time for Service (2) Where an action is commenced by issuing a Notice of Action, the Notice of Action and the Statement of Claim shall be served together within 6 months after the Notice of Action is issued. Service of Amended Pleading 27.10 (4) Unless ordered otherwise, a copy of an amended pleading shall be served forthwith upon all of the parties to the action. Where Personal Service Required 27.10 (5) Where the amended pleading is an originating process, service shall be made on all parties whether or not a party has been noted in default and, if the party to be served has been served with the original pleading and has responded to it, service may be made in any manner set out in Rule 18.

The Plaintiff Andr Murray did cause the Service of the following Documents to occur according to New Brunswick rules of Court 16.08, CLAIM FOR LIEN, dated April 16, 2009, CERTIFICATE OF PENDING LITIGATION dated April 21, 2009, (FORM 16 B) NOTICE OF ACTION dated April 21, 2009, (FORM 16C) STATEMENT OF CLAIM dated May 20, 2009, and according to Rule 27.10 (4) and 27.10 (5) the (FORM 16C) AMENDED STATEMENT OF CLAIM dated August 21, 2009, within the six month time limit requirement by the Rules of Court16.08(2). The following are the relevant New Brunswick Rules of Court, regarding Service:
18.01 When Personal Service is Necessary Originating Process (1) An originating process (a) shall be served personally unless provided otherwise by an Act or by these rules, and (b) need not be served on a party who has filed and served a defence. 18.02 How Personal Service Shall be Made

27

(1) Personal service shall be made as follows: Individual (a) on an individual, other than a person under disability, by leaving a copy of the document with him; 18.10 Proof of Service (1) The service of a document may be proved by an affidavit of the person effecting such service (Form 18B).

The Plaintiff Andr Murray did cause the Service of the following Documents to occur on Defendant Betty Rose Danielski according to New Brunswick rules of Court 16.08,
18.01(a), 18.02(1)(a) and 18.10(1) by acquiring the service of CANADIAN PROCESS SERVING INC, 509 157 Adelaide Street West, Toronto, ON M5H 4E7.

CLAIM FOR LIEN, dated April 16, 2009, CERTIFICATE OF PENDING LITIGATION dated April 21, 2009, (FORM 16 B) NOTICE OF ACTION dated April 21, 2009, (FORM 16C) STATEMENT OF CLAIM dated May 20, 2009, (FORM 16C) AMENDED STATEMENT OF CLAIM dated August 21, 2009
The AFFIDAVIT OF SERVICE, dated the 9th day of November, 2009, of George Mallia, Process Server, of the City of Toronto, in the Province of Ontario stated as follows: 1. On October 19th, 2009, at 7:15 p.m., I personally served Defendant Betty Rose Danielski with the following documents: a. Claim for Lien b. Certificate of Pending Litigation c. Notice of Action d. Statement of Claim e. Amended Statement of Claim by leaving a true copy with her at 439 Sherboure Street, 3rd Floor, Toronto, Ontario M4X 1K6. 2. I was able to identify the person by means of verbal acknowledgement.

The above mentioned Affidavit of Service was filled with Court of Queen's Bench of New Brunswick, November 30, 2009. ( see RECORD ON MOTION BOOK 1 TAB 1) Furthermore Plaintiff Andr Murray did send by UPS Delivery Service, prepaid registered mail, two further copies of: CLAIM FOR LIEN, dated April 16, 2009, CERTIFICATE OF PENDING LITIGATION dated April 21, 2009, (FORM 16 B) NOTICE OF ACTION dated April 21, 2009, 28

(FORM 16C) STATEMENT OF CLAIM dated May 20, 2009, (FORM 16C) AMENDED STATEMENT OF CLAIM dated August 21, 2009 The first UPS package Service, Express Saver, Billed Charge $20.53, tracking number was E8386887925, Sender A MURRAY, FREDERICTON NB E3B 5V5, Receiver BETTY ROSE DANIELSKI, FUDGER HOUSE CARE OF TORONTO ON M4X 1K6. ( see RECORD ON MOTION BOOK 1 TAB 22 and 24 ) Proof of service was by way of signature in accordance with to Rule 18.03 (4)(c). ( see RECORD ON MOTION BOOK 1 TAB 23) The Second UPS package Service, Express Shipment, Billed Charge $37.63, tracking number was E8386887989, Sender MURRAY ANDR, FREDERICTON NB E3B 5V5, Receiver BETTY ROSE DANIELSKI, TORONTO ON M5A 2K5. ( see RECORD ON MOTION BOOK 1 TAB 20 and 24 ) Proof of service was by way of signature in accordance with to Rule 18.03 (4)(c). ( see RECORD ON MOTION BOOK 1 TAB 21 ) The following are the relevant New Brunswick Rules of Court, regarding Service by Prepaid Mail or Prepaid Courier:
18.02 How Personal Service Shall be Made (1) Personal service shall be made as follows: Individual (a) on an individual, other than a person under disability, by leaving a copy of the document with him; 18.03Service by Prepaid Mail or Prepaid Courier (3) Where personal service of a document may be made by leaving a copy with a person pursuant to Rule 18.02(1), such service may be made anywhere in Canada by sending a copy of the document, together with an Acknowledgement of Receipt Card (Form 18A), by prepaid mail or prepaid courier addressed to the person at the last known address of the person. (4) Service by prepaid mail or prepaid courier shall be deemed to have been effected only if any one of the following is returned to and received by the sender: (a) the Acknowledgement of Receipt Card bearing a signature which purports to be the signature of the person to whom the document was sent; (b) a post office receipt bearing a signature which purports to be the signature or a copy of the signature of the person to whom the document was sent; (c) any other form of acknowledgement of receipt in

29

writing bearing a signature which purports to be the signature or a copy of the signature of the person to whom the document was sent; or (d) confirmation in writing from the carrier that the document was delivered to the person to whom the document was sent. (5) Service by prepaid mail or prepaid courier shall be deemed to have been effected on the date the sender receives a receipt or confirmation under paragraph (4).

10 Order continuing the action Application has been made to a judge of The Court of Queen's Bench of New Brunswick for an order continuing the action pursuant to New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b). New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 52.1(1) An action to enforce a lien shall be deemed to be discontinued one year after the action is commenced unless (a) the action has been set down for trial, or

(b) an application has been made to a judge of The Court of Queen's Bench of New Brunswick for an order continuing the action and a copy of the notice of application has been served on the defendant to the action. 52.1(2) In ordering the continuance of an action, the judge may impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the action. On April 20, 2010, Plaintiff Andr Murray Filed a Notice of Motion (Form 37A) with the Court of Queens Bench Trial Division Fredericton, New Brunswick, for an order continuing the New Brunswick Mechanics' Lien action pursuant to New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-section 52.1(1)(b). ( see RECORD ON MOTION BOOK 1 TAB 8 ). The Plaintiff Andr Murray requests that the Court may, on such terms as may be just, extend the time prescribed on the New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. Msection 52.1(1)(b), pursuant to the New Brunswick New Brunswick Rules of Court 3.02
Extension or Abridgment.

New Brunswick Rules of Court

30

3.02 Extension or Abridgment (1) Subject to paragraphs (3) and (4), the Court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules. (2) A motion for extension of time may be made either before or after the expiration of the time prescribed. (3) Where the time prescribed by these rules relates to an appeal, only a judge of the Court of Appeal may make an order under paragraph (1). (4) Any time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by consent.

A copy of the notice of Motion has been served on the defendant to the action pursuant to section 52.1(1)(b). ( see RECORD ON MOTION BOOK 1 TAB 7 ). A copy of the Notice of Motion, signed, dated and filed April 20, 2010 and supporting Affidavit of Plaintiff Andr Murray signed, dated and filed April 20, 2010 has been served on the Defendant to the action, Defendant Betty Rose Danielski by way of Fax Service, according to New Brunswick Rules of Court Rule 18.07 (2) Service on Solicitor of Record, to the Defendants Solicitor E. Thomas Christie, QC . by telephone transmission, verified successful, to Fax number 472 2091. The Affidavit of Service (Form 18B), of Plaintiff Andr Murray was signed, dated and filed April 20, 2010 with the Court of Queens Bench Trial Division Fredericton, New Brunswick. This Affidavit of Service stated that Plaintiff Andr Murray served Solicitor for Defendant Betty Rose Danielski, E. Thomas Christie, QC with the attached documents, namely a copy of the Notice of Motion, signed, dated and filed April 20, 2010 and supporting Affidavit of Plaintiff Andr Murray signed, dated and filed April 20, 2010, at 3:48P.M. to Fax number (506) 472 2091 by telephone transmission, verified successful, according to the attached transmission Verification Report, Serial number #000H6J423935. The relevant New Brunswick Rules of Court regarding Service on Solicitor of Record and
proof of Service are as follows: 18.07 Service on Solicitor of Record (1) Where service of a document on the solicitor of record for a party is authorized or required by these rules, the document may also be served (a) by leaving a copy with an employee in the office of the solicitor, or

31

(b) by telephone transmission producing a facsimile of the document in the office of the solicitor in accordance with paragraph (2). (2) A document served by telephone transmission shall include a cover page indicating (a) the name, address and telephone number of the sender, (b) the name of the solicitor to be served, (c) the date and time of transmission, (d) the total number of pages transmitted, including the cover page, (e) the telephone number from which the document is transmitted, and (f) the name and telephone number of a person to contact in the event of transmission problems. 18.10 Proof of Service (1) The service of a document may be proved by an affidavit of the person effecting such service (Form 18B).

11 Example litigation - Stare Decisis STARE DECISIS found at:( http://www.lectlaw.com/def2/s065.htm) Lat. "to stand by that which is decided." The principal that the precedent decisions are to be followed by the Courts. To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the Courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports.

32

An appeal Court's panel is "bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions." United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989).Although the doctrine of stare decisis does not prevent reexamining and, if need be, overruling prior decisions, "It is . . . a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy . . . 'is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.'" (Moradi_Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.) Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law.

Maxim Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law. In J.K. Dineen v. Morris Music, 2004 NBQB 43 (CanLII) Justice William T. Grant. granted continuance according to rule 52.(1)(b), found at (http://www.canlii.org/en/nb/nbqb/doc/2004/2004nbqb43/2004nbqb43.html) ( see The Plaintiffs Submission SCHEDULE C LISTED AUTHORITIES FULL DISCISION CITED) as follows; [1] In this motion, the plaintiff asks for an order under Section 52.1(b) of the Mechanics Lien Act to continue a Mechanics Lien action that was started on January 20th, 2003.

[4] The second reason advanced by the defendant to oppose the motion is that there is no good reason given by the plaintiff to allow it. Section 52.1(b) gives the Court discretion to order continuation of an action that has not been set down for trial within a year of being commenced. Whether or not the Court will exercise that discretion will depend on the reasons given for the delay by the plaintiff as well as any prejudice that may result to the defendant, if such an order is made.

33

[6] The affidavit of the defendants solicitor, Mr. Boss, in opposition to the motion does not reveal any prejudice that would result to the defendant if the order is made. It does reveal that much has happened on the file since October 10th, 2003 and that the action should be ready to be set down for trial reasonably soon. Mr. Boss argued both in his brief and here in Court this morning that if the action is continued, the defendants land will be encumbered, limiting its ability to sell but there is no evidence before the Court of any pending sale or other conveyance that is being jeopardized at present by the lien.

[7] Given all those factors, I hereby allow the motion and, pursuant to Section 52.1(b) of the Act, I order that the action be continued on the condition that the plaintiff set it down for trial by the May, 2004 motions day; otherwise it will be deemed to be discontinued. I am not going to make any order for costs in the circumstances. In this motion before the Court, the Plaintiff Andr Murray asks the Honorable Court to exercise the Courts discretion for an order under Section 52.1(b) of the Mechanics Lien Act to continue a Mechanics Lien action that was started on April 21st, 2009. The reason the extension is requested is because of the adversity the Plaintiff Andr Murray is experiencing in attempting to overcome the Plaintiff Andr Murrays position with the Royal Bank of Canada. If the Royal Bank of Canada consented to Plaintiff Andr Murray re-entering 29 Marshall Street, Fredericton New Brunswick then there would not be a request to this Court for an order under Section 52.1(b) of the Mechanics Lien Act to continue a Mechanics Lien action. Adversity is defined at:( http://mw2.merriam_webster.com/dictionary/adversity ) as follows: adversity Main Entry: adversity Pronunciation: \ad_?v?r_s?_te_\ Function: noun Inflected Form(s): plural adversities Date: 13th century : a state, condition, or instance of serious or continued difficulty or adverse fortune

34

synonyms see misfortune The Defendant Betty Rose Danielski has directly caused the situation which the Plaintiff Andr Murray now finds himself in, which is namely; the Plaintiff Andr Murray is unable to access the subject document necessary to move forward with the Mechanics Lien Action, until such time as the Courts grant access of 29 Marshall Street to the Plaintiff Andr Murray. ( see Copy of the Order from the Court of Queens Bench Trial Division, Moncton, dated October 20th, 2009 at RECORD ON MOTION BOOK 1 TAB 29 ) It is unjust that the Defendant Betty Rose Danielski should be benefited by the delays that she herself has caused. Maxim The law will not intend a wrong., Bacon's Maxims (17, reg. 3) It is only fair and in the interest of Justice that the Court grants a Continuance in the present circumstances. 12 Costs The Plaintiff Andr Murray asks the Honorable Court to exercise the Courts discretion for an order for costs. Had the Defendant Betty Rose Danielski consented to a Consent Order, there would have been no reason to bring this Motion for a Continuance of the Mechanics' Lien Action, before the Court and hence the expense for both parties unnecessary. (see copy of the Letter at RECORD ON MOTION BOOK 1 TAB 33 ). The Letter requesting Consent to a Continuance was served on Solicitor for Defendant Betty Rose Danielski, E. Thomas Christie, QC on May 31, 2010. ( see copy of the Affidavit of Service of the subject Letter, Dated May 31, 2010, at RECORD ON MOTION BOOK 1 TAB 32 )

35

D PART VI ORDERS SOUGHT

a) That, pursuant to section 52.1 (1) (b) of the Mechanics' Lien Act, this action be

continued until October 21, 2010 or further Order of this Court,

b) That the Court grant a Extension of time pursuant to Rule 3.02 of the Rules of

Court,
c) That the Defendant pay costs of the within Motion, d) Such further and other relief as to this Honorable Court may appear just.

SCHEDULE A

E LISTED AUTHORITIES

1. Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 (CanLII)__________ 2. J.K. Dineen v. Morris Music, 2004 NBQB 43 (CanLII)_________ 3. The New Brunswick Rules of Court at www.gnb.ca/0062/regs/Rule/rule_list.htm ___________________ 4. www.lectlaw.com ______________________________________ 5. www.duhaime.org _____________________________________

36

F SCHEDULE B TEXT OF RELEVANT PROVISIONS OF STATUTES OR REGULATIONS Maxims a. Nemo dat quod non habit. One cannot grant what one does not have b. The law will not intend a wrong., Bacon's Maxims (17, reg. 3) c. Argumentum ab auctoritate fortissimum est in lege - An argument drawn from authority is the strongest in law. d. Injura servi dominum pertingit. The servants wrong doing reaches the master. The master is liable for injury done by his servant. e. Qui facit per alium facit per se A person who acts through another acts as himself. The acts of an agent are considered the acts of the principle. f. Qui per alium facit per seipsum facere videtur A person who does anything through another is considered as doing it himself g. Qui facit per alium facit per se He who acts through another is deemed to act in person, i.e., a principal is liable for the acts of his agent. h. Nemo potest facere per alium, quod per se non potest No one can do through another what he cannot do himself. i. Caveat emptor (Hob. 99) _ "let the purchaser beware" applies to a purchaser of property whether or not a Mortgage exists. j. No rule of law protects a buyer who willfully closes his ears to information, or refuses to make inquiry when circumstances of grave suspicion imperatively demand it Relevant New Brunswick Rules of Court state as follows:
Source: http://www.gnb.ca

37

Rules of Court. Rule 1.03 of the Rules of Court states: (2) These rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits.
PRELIMINARY MATTERS RULE 2 NON-COMPLIANCE WITH THE RULES 2.01 The Court Dispensing with Compliance The Court may at any time dispense with compliance with any rule, unless the rule expressly or impliedly provides otherwise. 2.02 Effect of Non-Compliance A procedural error, including failure to comply with these rules or with the procedure prescribed by an Act for the conduct of a proceeding, shall be treated as an irregularity and shall not render the proceeding a nullity, and all necessary amendments shall be permitted or other relief granted at any stage in the proceeding, upon proper terms, to secure the just determination of the matters in dispute between the parties. In particular, the Court shall not set aside any proceeding because it ought 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. 2.04 Where No Procedure Provided In any matter of procedure not provided for by these rules or by an Act the Court may, on motion, give directions. 3.02 Extension or Abridgment (1) Subject to paragraphs (3) and (4), the Court may, on such terms as may be just, extend or abridge the time prescribed by an order or judgment or by these rules. (2) A motion for extension of time may be made either before or after the expiration of the time prescribed. (3) Where the time prescribed by these rules relates to an appeal, only a judge of the Court of Appeal may make an order under paragraph (1).

38

(4) Any time prescribed by these rules for serving, filing or delivering a document may be extended or abridged by consent. 16.01 How Proceedings Commenced (1) Unless provided otherwise by an Act, all civil proceedings, except a counterclaim against a plaintiff only or a cross-claim, shall be commenced by issuing an originating process. (2) An originating process is issued when the original, a copy, and the filing fee prescribed by these rules (a) are delivered to the office of the clerk of the judicial district in which the proceeding is to be commenced, or (b) are sent by prepaid registered mail or prepaid courier addressed to the clerk of the judicial district in which the proceeding is to be commenced. 16.03 By Statement of Claim or Notice of Action (1) Unless provided otherwise by these rules, the originating process for the commencing of a proceeding shall be a Notice of Action with Statement of Claim Attached (Form 16A). (2) Where there is insufficient time to prepare a Statement of Claim, an action may be commenced by issuing a Notice of Action (Form 16B) upon which shall be endorsed a brief statement of the nature of the claim; but, unless ordered otherwise, the plaintiff shall file his Statement of Claim (Form 16C) within 30 days of the issuing of the Notice of Action. (3) The Notice of Action and Statement of Claim shall be served together in accordance with Rule 16.08(2). 16.07 Clerk on Receipt of Originating Process Upon receiving an originating process, a copy, and the filing fee prescribed by these rules, the clerk shall (a) assign to the originating process a Court file number, (b) enface on the original and copy the Court file number and the date of issue, (c) return the original to the plaintiff or applicant, or his solicitor, and (d) retain and file the copy. 16.08 Time for Service (1) Where an action is commenced by issuing a Notice of Action with Statement of Claim Attached, it shall be served within 6 months thereafter. (2) Where an action is commenced by issuing a Notice of Action, the Notice of Action and the Statement of Claim shall be served together within 6 months after the

39

Notice of Action is issued. (3) A Notice of Application shall be served at least 10 days before the date upon which the application is to be heard except where it is served outside New Brunswick, in which case it shall be served at least 20 days before the date upon which the application is to be heard. 16.09 Striking Out or Amending An originating process which is not a pleading may be struck out or amended in the same manner as a pleading. 18.01 When Personal Service is Necessary Originating Process (1) An originating process (a) shall be served personally unless provided otherwise by an Act or by these rules, and (b) need not be served on a party who has filed and served a defence. 18.02 How Personal Service Shall be Made (1) Personal service shall be made as follows: Individual (a) on an individual, other than a person under disability, by leaving a copy of the document with him; 18.03 Other Ways to Effect Personal Service Where available (1) With the exception of Rules 33.03 and 55.03, where personal service is required by these rules, any appropriate method of service authorized by this subrule may be used. Service on Solicitor (2) A party who is represented by a solicitor may be served by leaving a copy of the document with his solicitor if the solicitor endorses on a copy his acceptance of service and the date of his acceptance. By so doing, the solicitor shall be deemed to represent to the Court that he has the authority of his client to accept service. Service by Prepaid Mail or Prepaid Courier (3) Where personal service of a document may be made by leaving a copy with a person pursuant to Rule 18.02(1), such service may be made anywhere in Canada by sending a copy of the document, together with an Acknowledgement of Receipt Card (Form 18A), by prepaid mail or prepaid courier addressed to the person at the last known address of the person. (4) Service by prepaid mail or prepaid courier shall be deemed to have been effected only if any one of the following is returned to and received by the sender:

40

(a) the Acknowledgement of Receipt Card bearing a signature which purports to be the signature of the person to whom the document was sent; (b) a post office receipt bearing a signature which purports to be the signature or a copy of the signature of the person to whom the document was sent; (c) any other form of acknowledgement of receipt in writing bearing a signature which purports to be the signature or a copy of the signature of the person to whom the document was sent; or (d) confirmation in writing from the carrier that the document was delivered to the person to whom the document was sent. (5) Service by prepaid mail or prepaid courier shall be deemed to have been effected on the date the sender receives a receipt or confirmation under paragraph (4). 18.07 Service on Solicitor of Record (1) Where service of a document on the solicitor of record for a party is authorized or required by these rules, the document may also be served (a) by leaving a copy with an employee in the office of the solicitor, or (b) by telephone transmission producing a facsimile of the document in the office of the solicitor in accordance with paragraph (2). (2) A document served by telephone transmission shall include a cover page indicating (a) the name, address and telephone number of the sender, (b) the name of the solicitor to be served, (c) the date and time of transmission, (d) the total number of pages transmitted, including the cover page, (e) the telephone number from which the document is transmitted, and (f) the name and telephone number of a person to contact in the event of transmission problems.

41

18.10 Proof of Service (1) The service of a document may be proved by an affidavit of the person effecting such service (Form 18B). (2) The personal service of a document by a sheriff or his deputy may be proved by a Certificate of Service (Form 18C) endorsed on a copy of the document served. (3) The written admission or acceptance of service by a solicitor is sufficient proof of service and need not be verified by an affidavit 19.01 Service Outside New Brunswick Without Leave Without a Court order, a party to a proceeding may be served outside New Brunswick with an originating process where the proceeding against that party consists of a claim or claims (f) in respect of a mortgage, charge or lien on real or personal property situate in New Brunswick, (g) in respect of a contract where (i) the contract was made in New Brunswick, (ii) the contract was made by or through an agent trading or residing in New Brunswick on behalf of a principal trading or residing outside New Brunswick, (iii) the contract provides that it is to be governed by or interpreted in accordance with the laws of New Brunswick, (iv) the parties thereto have agreed that the Courts of New Brunswick shall have jurisdiction to entertain any action in respect of the contract, or (v) a breach has been committed in New Brunswick, even though such breach was preceded by or accompanied by a breach outside New Brunswick which rendered impossible the performance of that part of the contract which ought to have been performed in New Brunswick, 19.03 Additional Requirements for Service Outside New Brunswick (1) An originating process served outside New Brunswick without leave shall disclose the facts relied upon in support of such service.

42

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. Service of Amended Pleading (4) Unless ordered otherwise, a copy of an amended pleading shall be served forthwith upon all of the parties to the action. Where Personal Service Required (5) Where the amended pleading is an originating process, service shall be made on all parties whether or not a party has been noted in default and, if the party to be served has been served with the original pleading and has responded to it, service may be made in any manner set out in Rule 18. 37.01 Notice of Motion A motion shall be made by (a) Notice of Motion (Form 37A), or 37.02 Place and Date of Hearing of a Motion A motion shall be made in the judicial district (a) in which the proceeding was or will be commenced, or

43

(b) where the solicitor of record for a party has given an address for service, on a date to be fixed by a judge in that district. 37.03 Content of Notice of Motion or Preliminary Motion A Notice of Motion or Preliminary Motion shall (a) state the precise order sought, (b) state the grounds to be argued, including a reference to any statutory provision or rule to be relied on, and (c) list the documentary evidence to be used at the hearing of the motion 37.04 Service of Notice of Motion or Preliminary Motion Where Required (1) Unless ordered otherwise, a Notice of Motion or Preliminary Motion and affidavits in support thereof shall be served on all parties to the proceeding and on any persons who would be affected by the order sought. Time for Service (5) Where service of a Notice of Motion or Preliminary Motion is required, it shall be made at least 10 days before the date of the hearing. LEGAL PROCEEDINGS HAVE BEEN COMMENCED AGAINST YOU BY FILING THIS NOTICE OF ACTION WITH STATEMENT OF CLAIM ATTACHED. If you wish to defend these proceedings, either you or a New Brunswick lawyer acting on your behalf must prepare your Statement of Defence in the form prescribed by the Rules of Court and serve it on the plaintiff or the plaintiffs lawyer at the address shown below and, with proof of such service, file it in this Court Office together with the filing fee of $50, (b) if you are served elsewhere in Canada or in the United States of America, WITHIN 40 DAYS after such service, or 42.01 When Issued A Certificate of Pending Litigation (Form 42A) may be issued in any proceeding in which any title to, or interest in, land is brought in question. 42.02 Where Issued Without Notice Where, in an originating process or pleading, there is included a claim for a certificate of pending litigation and

44

a description, sufficient for registration, of the land in question, the clerk shall, on the request of any party, issue such certificate without notice or order.

The New Brunswick Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 states as follows: Source: (http://www.canlii.org/en/nb/laws/stat/rsnb-1973-c-m-6/53515/) "owner" means a person having an estate or interest in land upon or in respect of which work is done or material is furnished at his request, express or implied, and (a) (b) (c) (d) upon his credit, upon his behalf, with his privity and consent, or for his direct benefit,

and all persons claiming under him whose rights are acquired after the beginning of the work or the furnishing of the material in respect of which a lien is claimed; "proper registry office" when used with reference to the filing, discharging or vacating of a claim of lien or other instrument or document, or of any dealing, relating to or affecting any land, means the registry office of the county in which the land is situate; "contractor" means a person contracting with, or employed directly by, the owner or his agent to do work upon or to furnish material for an improvement, but does not include a labourer; "labourer" means a person employed for wages in any kind of labour, whether employed under a contract of service or not; "wages" means money earned by a labourer for work done, whether by time or piece work or otherwise; "work" includes the doing of work and the performance of services upon or in respect of an improvement, and also includes the breaking of any land or the clearing of timber or scrub. 4(1) A person who

45

(a) does, or causes to be done any work upon or in respect of an improvement, or (b) furnishes any material to be used in an improvement,

for an owner, contractor or sub-contractor has, subject as herein otherwise provided, a lien for wages or for the price of the work or material, as the case may be, or for so much thereof as remains owing to him, upon the estate or interest of the owner in the land in respect of which the improvement is being made, as such estate or interest exists at the time the lien arises, or at any time during its existence. 20(1) A claim of lien upon any land or interest therein may be filed in the proper registry office. 20(2) (a) (i) A claim of lien shall state the name and address of the lienholder,

(ii) the owner, or the person whom the lienholder or his agent believes to be the owner of the land to be charged, and (iii) the person for whom, and upon whose credit, the work was or is to be done, or the material was or is to be furnished; (b) the date upon which the last work was done or the last material furnished, or, where the claim is filed before the work or furnishing of material is completed, the time or period within which the same is to be done or furnished; (c) a short description of the work done, or to be done, or of the material furnished, or to be furnished; (d) the sum claimed as due or to become due;

(e) a description, sufficient for identification, of the land or interest therein to be charged; and (f) the date of expiry of the period of credit, if any, given by the lienholder. 20(3) A claim of lien may be made in one of the forms prescribed by regulation and shall be verified by the affidavit of the lienholder or of

46

his agent or assignee having personal knowledge of the matters required to be verified, which affidavit may be in the form prescribed by regulation. 20(5) Every claim of lien shall show an address for service on the lienholder. 22(1) Substantial compliance with sections 20 and 21 is sufficient; and no lien is invalidated by failure to comply with any requirement of those sections unless in the opinion of the judge who tries the action, the owner, contractor, sub-contractor, mortgagee, or some other person is prejudiced thereby, and then only to the extent to which he is so prejudiced. 23(1) The Registrar, upon receipt of the proper fee shall file a claim of lien describing it as a "Mechanics' Lien" and shall index the claim of lien in a book to be kept and entitled "Mechanics' Lien Index" and the lien shall appear as an encumbrance against the land or the estate or interest in land therein described. 24(1) A claim of lien for wages may be filed at any time before the expiration of thirty days from the doing of the last work for which the wages are owing and the lien claimed. 24(2) A claim of lien for services may be filed at any time before the expiration of thirty days from the completion of the services. 24(3) A claim of lien for material may be filed at any time before the expiration of sixty days from the furnishing of the last material the price of which is claimed for. 27 Every lien in respect of which a claim of lien has been filed ceases to exist on the expiration of ninety days from the filing of the claim of lien or after the expiry of any period of credit mentioned in the claim of lien unless, in the meantime, an action is commenced in which the lien may be enforced, and a certificate of pending litigation in respect thereof issued from the Court in the form prescribed by regulation is registered in the proper registry office. 52.1(1) An action to enforce a lien shall be deemed to be discontinued one year after the action is commenced unless (a) the action has been set down for trial, or

(b) an application has been made to a judge of The Court of Queen's Bench of New Brunswick for an order continuing the action and a copy of the notice of application has been served on the defendant to the action.

47

52.1(2) In ordering the continuance of an action, the judge may impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the action.

COSTS 55(1) The costs of the action awarded by the judge shall not, exclusive of actual disbursements, exceed in the aggregate an amount equal to the costs recoverable in a regular Court action or twenty-five per cent of the amount found actually due, whichever is the greater, and shall be apportioned and borne as the judge directs, but in making such apportionment he shall have regard to the actual service rendered by or on behalf of the parties respectively. 55(2) The Lieutenant-Governor in Council may fix a tariff of costs applicable to Mechanics' Lien proceedings. R.S., c.142, s.54; 1979, c.41, s.77. 56 Where costs are awarded against the plaintiff or other person claiming a lien, the costs shall not exceed in the aggregate an amount equal to twenty-five per cent of the claim of the plaintiff and other claimants, besides actual disbursements, and shall be apportioned and borne as the judge directs. R.S., c.142, s.55. 57 Where the least expensive course is not taken by a party under this Act the costs allowed to him shall in no case exceed what would have been incurred if the least expensive course had been taken. R.S., c.142, s.56. 58(1) Notwithstanding anything contained in the Judicature Act, the costs of and incidental to all actions, applications and orders commenced or made under this Act are in the discretion of the judge, subject always to the limitations provided for by sections 55 and 56.

48

SCHEDULE C

G LISTED AUTHORITIES FULL DISCISION CITED 1 Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 (CanLII)

Mechanics' Lien Act, R.S.N.B. 1973, c. M-6 Found at : http://www.canlii.org/en/nb/laws/stat/rsnb-1973-c-m-6/53515/ CHAPTER M-6

Mechanics' Lien Act

Chapter Outline

Definitions.......................................................................................................................... ............... 1 completion of the contract excution du contrat contractor entrepreneur court cour highway route improvement amlioration judge juge labourer ouvrier 49

land bien-fonds lien privilge owner propritaire proper registry office bureau de l'enregistrement comptent registrar conservateur sub-contractor sous-traitant wages salaire work travaux Application of Act............................................................................................................................. 2 Trust fund.................................................................................................................................... .. 3(1) Offences and penalties.......................................................................................................... 3(2), (3) Lien of workmen or materialmen............................................................................................... 4(1) Limitation on lien.................................................................................................................. 4(2), (3) Amount of claim for lien............................................................................................................. 4(4) When material deemed furnished........................................................................................ 4(5), (6) Equipment rentals......................................................................................................................... 4(7) Agreement waiving lien..................................................................................................................... 5 Agreement of labourer waiving lien............................................................................................ 6(1)

50

Device designed to defeat priority of labourer.......................................................................... 6(2) Payment made to defeat lien....................................................................................................... 7(1) Mortgage, conveyance or charge as security for lien............................................................... 7(2) Time lien arises.................................................................................................................................. 8 Priority of lien................................................................................................................................... 9 Equality of liens......................................................................................................................... 10(1) Priority of lien for wages.......................................................................................................... 10(2) Equality of liens for wages........................................................................................................ 10(3) Dower................................................................................................................................. .............. 11 Lien on leasehold....................................................................................................................... 12(1) Termination of lien on leasehold.............................................................................................. 12(2) Fire..................................................................................................................................... ............... 13 Removal of material................................................................................................................... 14(1) Duration and effect of materialmen's lien............................................................................... 14(2)

51

Hold back............................................................................................................................. 15(1)-(3) Completion of subcontract...................................................................................................... 15(4) Certificate of architect respecting sub-contract.............................................................. 15(4), (5) Lien is charge............................................................................................................................. 15(6) Bona fide pay-out by owner...................................................................................................... 15(7) Amendment of contract............................................................................................................. 15(8) Liability of owner on default of contract................................................................................. 15(9) Effect of notice of lien................................................................................................................... 16 When lien discharged...................................................................................................................... 17 Effect of payment to lienholder..................................................................................................... 18 Abandonment of contract................................................................................................................ 19 FILING OF LIEN Filing of claim of lien................................................................................................................ 20(1) Contents of claim of lien........................................................................................................... 20(2) Form of claim of lien................................................................................................................. 20(3)

52

Affidavit of verification...................................................................................................... 20(3), (4) Address for service............................................................................................................. 20(5), (6) Railway.............................................................................................................................. .......... 20(7) Joinder of issue............................................................................................................................... 21 Substantial compliance....................................................................................................... 22(1), (2) Amendment........................................................................................................................ ......... 22(3) Duty of Registrar to file claim of lien..................................................................................... 23(1) Repealed............................................................................................................................. ......... 23(2) Settlement for claim of lien...................................................................................................... 23(3) Time of filing lien for wages..................................................................................................... 24(1) Time of filing lien for services................................................................................................. 24(2) Time of filing lien for material................................................................................................. 24(3) Time of filing lien by contractor....................................................................................... 24(4), (5) Expiry of unregistered lien............................................................................................................. 25 Effect of filing................................................................................................................................. 26

53

Expiry of registered lien................................................................................................................. 27 Discontinuance of action................................................................................................................ 28 Assignment of rights of lienholder................................................................................................ 29 Filing of certificate of discharge.............................................................................................. 30(1) Effect of filing certificate of discharge................................................................................... 30(2) Duty of Registrar respecting certificate of discharge............................................................ 30(3) Order vacating lien..................................................................................................................... 30(4) Effect of lienholder taking security.................................................................................. 31(1), (2) Extension of time by lienholder............................................................................................... 31(3) LIENHOLDER'S RIGHT TO INFORMATION Information from owner..................................................................................................... 32(1), (2) Information from mortgagee or unpaid vendor................................................................ 32(3), (4) Information from contractor or sub-contractor............................................................... 32(5), (6) ENFORCEMENT OF LIEN Enforcement of lien in court.......................................................................................................... 33 Repealed............................................................................................................................. .............. 34

54

Repealed............................................................................................................................. .............. 35 Repealed............................................................................................................................. .............. 36 Repealed............................................................................................................................. .............. 37 Joinder of actions............................................................................................................................ 38 Repealed............................................................................................................................. .............. 39 Notice of trial.................................................................................................................................. 40 Lienholder deemed party to action................................................................................................ 41 Statement of claim of lienholder other than plaintiff.................................................................. 42 Duties of judge at trial.................................................................................................................... 43 Order for sale of estate.............................................................................................................. 44(1) Order for sale of materials........................................................................................................ 44(2) Sheriff's fees............................................................................................................................... 44(3) Distribution of proceeds of sale............................................................................................... 45(1) Order for conveyance of property............................................................................................ 45(2)

55

Deficiency after sale....................................................................................................................... 46 Failure to establish valid lien.......................................................................................................... 47 Consolidation of actions................................................................................................................. 48 Order respecting carriage of action............................................................................................... 49 Apportionment of lien by judge..................................................................................................... 50 Payment into court; order vacating lien............................................................................. 51(1)-(4) Filing of order vacating lien...................................................................................................... 51(5) Order for production of documents............................................................................................... 52 When action deemed discontinued........................................................................................ 52.1(1) Order for continuance of an action....................................................................................... 52.1(2) Repealed............................................................................................................................. .............. 53 Repealed............................................................................................................................. .............. 54 COSTS Limitation respecting costs....................................................................................................... 55(1) Tariff of costs............................................................................................................................. 55(2)

56

Costs against plaintiff..................................................................................................................... 56 Least expensive course to be followed......................................................................................... 57 Power of judge respecting costs............................................................................................... 58(1) Repealed............................................................................................................................. ......... 58(2) Special costs.................................................................................................................................... 59 Fees or commissions respecting money paid into court............................................................. 60 Repealed............................................................................................................................. .............. 61 FORMS Regulations respecting forms........................................................................................................ 62

In this Act

"completion of the contract" means substantial performance, not necessarily total performance of the contract;

"contractor" means a person contracting with, or employed directly by, the owner or his agent to do work upon or to furnish material for an improvement, but does not include a labourer;

"court" means The Court of Queen's Bench of New Brunswick;

57

"highway" includes any road, road allowance, street, lane, thoroughfare, bridge, subway, pier, ferry, square, and public place, appropriated to the public use;

"improvement" includes anything constructed, erected, built, placed, dug or drilled on or in land except a thing that is not attached to the realty nor intended to be or become part thereof;

"judge" means a judge of the court;

"labourer" means a person employed for wages in any kind of labour, whether employed under a contract of service or not;

"land" includes improvements;

"lien" means a lien created by this Act;

"owner" means a person having an estate or interest in land upon or in respect of which work is done or material is furnished at his request, express or implied, and

(a)

upon his credit,

(b)

upon his behalf,

(c)

with his privity and consent, or

58

(d)

for his direct benefit,

and all persons claiming under him whose rights are acquired after the beginning of the work or the furnishing of the material in respect of which a lien is claimed;

"proper registry office" when used with reference to the filing, discharging or vacating of a claim of lien or other instrument or document, or of any dealing, relating to or affecting any land, means the registry office of the county in which the land is situate;

"registrar" means a registrar of deeds;

"sub-contractor" means a person not contracting with or employed directly by the owner or his agent for the doing of any work, but contracting with or employed by a contractor, or by a sub-contractor under him, but does not include a labourer;

"wages" means money earned by a labourer for work done, whether by time or piece work or otherwise;

"work" includes the doing of work and the performance of services upon or in respect of an improvement, and also includes the breaking of any land or the clearing of timber or scrub. R.S., c.142, s.1; 1965, c.27, s.3; 1972, c.45, s.1; 1979, c.41, s.77; 1980, c.32, s.20.

2 This Act does not apply in respect of a highway or any work done or caused to be done thereon by a municipality or rural community, or in respect of material furnished therefor. R.S., c.142, s.2; 2005, c.7, s.41.

59

3(1) All sums received by a builder or contractor or a sub-contractor on account of the contract price are and constitute a trust fund in the hands of the builder or contractor, or of the sub-contractor, as the case may be, for the benefit of the proprietor, builder or contractor, sub-contractors, Workplace Health, Safety and Compensation Commission, workmen and persons who have supplied material on account of the contract or who have rented equipment to be used on the contract site, and the builder or contractor or the sub-contractor, as the case may be is the trustee of all such sums so received by him, and until all workmen and all persons who have supplied material on the contract or who have rented equipment to be used on the contract site and all subcontractors are paid for work done or material supplied on the contract and the Workplace Health, Safety and Compensation Commission is paid any assessment with respect thereto, may not appropriate or convert any part thereof to his own use or to any use not authorized by the trust.

3(2) Every builder, contractor or sub-contractor who appropriates or converts any part of the contract price referred to in subsection (1) to his own use or to any use not authorized by the trust commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence and every director or officer of a corporation who knowingly assents to or acquiesces in any such offence by the corporation is guilty of such offence in addition to the corporation.

3(3) Notwithstanding the provisions of this section, where a builder, contractor or sub-contractor has paid in whole or part for any materials supplied on account of the contract or for any rented equipment or has paid any workman or sub-contractor who has performed any work or services or placed or furnished any material in respect of such contract, the retention by such builder, contractor or sub-contractor of any amount so paid by him shall not be deemed an appropriation or conversion thereof to his own use or to any use not authorized by the trust. 1959, c.60, s.1; 1981, c.40, s.1; 1981, c.80, s.30; 1990, c.61, s.77; 1994, c.70, s.4.

4(1)

A person who

(a)

does, or causes to be done any work upon or in respect of an improvement, or

(b)

furnishes any material to be used in an improvement,

60

for an owner, contractor or sub-contractor has, subject as herein otherwise provided, a lien for wages or for the price of the work or material, as the case may be, or for so much thereof as remains owing to him, upon the estate or interest of the owner in the land in respect of which the improvement is being made, as such estate or interest exists at the time the lien arises, or at any time during its existence.

4(2) Save as herein provided, a lien does not attach so as to make the owner liable for a greater sum than that payable by the owner to the contractor.

4(3) Save as herein provided, where a lien is claimed by a person other than the contractor, it does not attach so as to make the owner liable for a greater sum than the amount owing to the contractor for whom, or for whose sub-contractor, the work has been done, or the materials have been furnished.

4(4) No claim of lien shall be filed if the amount of the claim or the aggregate of joined claims is less than one hundred dollars.

4(5) Material shall be deemed to be furnished to be used within the meaning of this Act when it is delivered either on the land upon which it is to be used, or on such land or in such place in the immediate vicinity thereof as is designated by the owner or his agent, or by the contractor or sub-contractor.

4(6) Where material furnished to be used as set out in subsection (1) is incorporated in an improvement, a lien attaches as herein provided, notwithstanding that the material may not have been delivered in strict accordance with subsection (5).

4(7) A person who rents equipment to an owner, contractor or sub-contractor for use on a contract site shall be deemed for the purposes of this Act to have performed a service for which he has a lien for the price of the rental of the equipment used on the contract site, limited, however, in amount to the sum justly owed and due to the person entitled to the lien from the owner, contractor or sub-contractor in respect of the rental of the equipment.

61

R.S., c.142, s.3; 1965, c.27, s.4; 1981, c.40, s.2.

5 No agreement deprives a person not a party thereto and otherwise entitled to a lien under this Act of the benefit of the lien. R.S., c.142, s.4.

6(1) An agreement by a labourer that this Act does not apply or that the remedies provided by it are not available for his benefit is void.

6(2) Any device by an owner, contractor, or sub-contractor to defeat the priority given by this Act to a labourer for his wages is void. R.S., c.142, s.5.

7(1) A payment made for the purpose of defeating or impairing a lien is void for that purpose.

7(2) A conveyance, mortgage or charge of or on land given in payment of or as security for a lien upon that land whether given before or after the lien arises, shall be deemed to be fraudulent and void as against any other person entitled under this Act to a lien on the same land. R.S., c.142, s.6.

A lien arises when the work is begun or the first material is furnished.

R.S., c.142, s.7.

9(1)

A lien has priority over

62

(a) all judgments, executions, assignments, attachments, garnishments and receiving orders recovered, issued or made after the lien arises, and

(b) subject to subsection (2), all claims under conveyances, mortgages and other charges, and agreements for sale of land made by the owner before or after the lien arises.

9(2) Where a conveyance, mortgage or other charge or agreement for sale is registered before the filing of a claim of lien, a payment or advance made on account of the conveyance, mortgage or other charge or agreement for sale before the filing of a claim of lien or before notice in writing of the lien has been given to the person making that payment or advance has priority over the lien, but only to the extent that the total of all payments or advances made by the person, including that payment or advance, does not exceed the value of the land at the time that payment or advance is made.

9(3) Notice in writing under subsection (2) may be given in the form prescribed by regulation and may be delivered either personally or by registered mail to the person making the payment or advance, and where the person making the payment or advance is a corporation, the notice may be delivered to an officer of the corporation at its head office or to the manager or other person in charge of an office of the corporation within the Province.

9(4) Where the owner has an estate or interest in the land as purchaser under an agreement for sale and the purchase money or part thereof is unpaid, the vendor has priority over a lien only to the extent of the value of the land at the time the lien arose. R.S., c.142, s.8; 1965, c.27, s.2, 5; 1972, c.45, s.2.

10(1) Except as otherwise provided herein, no lienholder has any priority over or preference to another lienholder; and the proceeds of any sale so far as required, except as aforesaid, shall be distributed among the lienholders pro rata.

10(2) Liens for wages have, for all purposes under this Act and to the extent of thirty days wages, priority over all other liens.

63

10(3)

All liens for wages rank on an equal footing.

R.S., c.142, s.9.

11 Where, with the privity and consent of the husband, work is done or services performed or material is furnished to be used upon or in respect of the land of a married woman or land in which she has an interest or an inchoate right of dower, the husband shall, for the purposes of this Act, be conclusively presumed to be acting as her agent as well as for himself, unless the person doing the work or performing the services or furnishing the materials has notice to the contrary. R.S., c.142, s.10.

12(1) Where the estate or interest upon which the lien attaches is leasehold, the fee simple is also subject to the lien if the person doing the work or supplying the material gives notice in writing by registered letter or personal service to the owner or his agent of the work to be done or the material to be furnished, and the owner or his agent fails within ten days thereafter to give notice to such person that he will not be responsible therefor.

12(2) No forfeiture or cancellation of a lease, except for nonpayment of rent, deprives any person otherwise entitled to a lien of the benefit of the lien; and that person may pay any rent due or accruing due and the amount so paid may be added to his claim. R.S., c.142, s.11.

13 Where a property in respect of which a lien has arisen is wholly or partly destroyed by fire, any money received or receivable by an owner or by a prior mortgagee or chargee by reason of insurance thereon takes the place of the property so destroyed, and is, after satisfying any prior mortgage or charge in the manner and to the extent set out in subsection 9(4), subject to the claims of lienholders to the same extent as if the money were realized by a sale of the property in an action to enforce a lien. R.S., c.142, s.12.

64

14(1) During the existence of a lien no part of any material affected thereby shall be removed to the prejudice of the lien.

14(2) Material actually furnished to be used for the purpose set out in section 4 is subject to a lien in favour of the person furnishing it until it is placed in the improvement; and while that lien exists the material is not subject to execution or other process to enforce any debt other than that for the purchase money thereof. R.S., c.142, s.13.

15(1) An owner liable upon a contract under which a lien may arise shall deduct from any payments made by him thereunder and subject to section 17 retain for a period of sixty days after the completion or abandonment of the contract an amount equal to twenty per cent of the value of the work done and of the material furnished to be used, irrespective of whether the contract provides for instalment payments or payment on completion of the contract.

15(2) The value mentioned in subsection (1) shall be calculated on the basis of the contract price, or, if there is no specific price, then on the basis of the actual value of the work and material.

15(3) Where the value of the work and material exceeds fifteen thousand dollars, the amount to be retained shall, except as hereafter mentioned, be equal to fifteen per cent instead of twenty per cent of the value of the work and materials calculated as aforesaid, but shall not be less than the sum required to be retained pursuant to subsection (1) when the value is fifteen thousand dollars.

15(4)

Where

(a) a contract is under the supervision of an architect, engineer or other person upon whose certificates payments are to be made,

65

(b) the architect, engineer or other person referred to in paragraph (a) certifies to the owner and to a sub-contractor that the sub-contract has been completed to his satisfaction,

(c) sixty days have elapsed after the certificate referred to in paragraph (b) was delivered to the owner and sub-contractor, and

(d) no claim of a lien derived under that sub-contract is filed under section 20 or all such liens are discharged pursuant to section 30 hereof,

the owner shall reduce the amount to be retained by him by

(e) fifteen per cent or twenty per cent, as the case may be, of the sub-contract price, or

(f) where there is no specific sub-contract price, fifteen per cent or twenty per cent, as the case may be, of the actual work, service performed or materials furnished under that sub-contract.

15(5) Where a certificate issued by an architect, engineer or other person to the effect that a sub-contract by which a sub-contractor became a sub-contractor has been completed to the satisfaction of that architect, engineer or other person has been given to that sub-contractor, then for the purposes of subsections 24(2), (3) and (4) and section 27 that sub-contract and any materials furnished or to be furnished thereunder and any work or services performed or to be performed thereunder shall, so far as concerns any lien thereunder of that sub-contractor, be deemed to have been completed or furnished not later than the time at which the certificate was so given.

15(6) Every lien is a charge upon the amount directed by this section to be retained in favour of the lienholders who have done work or furnished material for

66

(a)

the contractor to whom the money so required to be retained is payable, or

(b)

his sub-contractor.

15(7) All payments up to eighty per cent as fixed by subsection (1) or up to eightyfive per cent as fixed by subsection (3) and payments permitted as a result of the operation of subsections (4) and (5) made in good faith by an owner to a contractor, or by a contractor to a sub-contractor, or by one sub-contractor to another sub-contractor, before notice in writing of the lien given by the person claiming the lien to the owner, contractor or sub-contractor, as the case may be, operate as a discharge pro tanto of the lien.

15(8) Every contract is amended in so far as is necessary to be in conformity with this section.

15(9) Where a contractor or sub-contractor makes a default in completing his contract, the amount required to be retained under this section shall not, as against a lienholder, be applied by the owner, contractor or sub-contractor to the completion of the contract or for any other purpose than the satisfaction of liens. R.S., c.142, s.14; 1960, c.49, s.1, 2, 3, 4; 1965, c.27, s.6.

16(1) Where a lienholder gives the owner notice in writing of his lien, stating under oath the amount claimed, the owner shall retain from the amount payable to the contractor under whom the lien is derived the amount stated in the notice, in addition to the amount retained under section 15.

16(2) The amounts retained pursuant to subsection (1) constitute a fund, separate from that constituted by the amounts retained pursuant to section 15, for the benefit of lienholders who give notice under this section.

67

16(3) The lien of each lienholder who gives notice under this section is a charge in his favour upon the amount directed by this section to be retained; and each of such lienholders ranks pari passu on the amount retained under this section for the amount for which his lien may be enforced, and the amount so retained shall be distributed among such lienholders pro rata as hereinafter provided.

16(4) A payment made to a lienholder under this section does not disentitle him to claim for any balance remaining payable to him and to be paid therefor from money retained under section 15. R.S., c.142, s.15.

17 Payment of the amounts required to be retained under sections 15 and 16 may be made so as to discharge every lien or charge under this Act in respect thereof

(a) on the expiration of sixty days after the completion or abandonment of the contract, if a claim of lien has not been filed or action commenced as provided herein, or

(b) on the expiration of the ninety days mentioned in section 27 if action has not been commenced within that period as mentioned in that section. R.S., c.142, s.16; 1965, c.27, s.1.

18 If an owner, contractor or sub-contractor makes a payment to a lienholder for or on account of a debt due the lienholder for work done or material furnished to be used as mentioned in section 4, for which debt the owner, contractor, or sub-contractor is not primarily liable, and within three days thereafter gives written notice of the payment to the person primarily liable, or his agent, the payment shall be deemed to be a payment on the contract with the person primarily liable, but not so as to affect the percentage to be retained by the owner as provided by section 15 or any further deduction required by section 16. R.S., c.142, s.17.

68

19 Subject to subsection 4(2), a lienholder is entitled to enforce his lien notwithstanding the non-completion or abandonment of the contract by a contractor or sub-contractor under whom he claims. R.S., c.142, s.18.

FILING OF LIEN 20(1) A claim of lien upon any land or interest therein may be filed in the proper registry office.

20(2)

A claim of lien shall state

(a)

the name and address of

(i)

the lienholder,

(ii) the owner, or the person whom the lienholder or his agent believes to be the owner of the land to be charged, and

(iii) the person for whom, and upon whose credit, the work was or is to be done, or the material was or is to be furnished;

(b) the date upon which the last work was done or the last material furnished, or, where the claim is filed before the work or furnishing of material is completed, the time or period within which the same is to be done or furnished;

(c) a short description of the work done, or to be done, or of the material furnished, or to be furnished;

69

(d)

the sum claimed as due or to become due;

(e) a description, sufficient for identification, of the land or interest therein to be charged; and

(f)

the date of expiry of the period of credit, if any, given by the lienholder.

20(3) A claim of lien may be made in one of the forms prescribed by regulation and shall be verified by the affidavit of the lienholder or of his agent or assignee having personal knowledge of the matters required to be verified, which affidavit may be in the form prescribed by regulation.

20(4) Where an affidavit of verification is made by an agent or assignee, it shall state that he has a personal knowledge of the matters verified.

20(5)

Every claim of lien shall show an address for service on the lienholder.

20(6) A lienholder may at any time change his address for service by notifying the owner and the registrar of deeds in writing, and thereupon the registrar shall note the change of address upon the claim of lien.

20(7) When it is desired to file a claim of lien against a railway, it is sufficient description of the land of the railway company to describe it as the land of the railway company; and every such claim shall be filed in the registry office of every county within which the lien is claimed to have arisen. R.S., c.142, s.19; 1965, c.27, s.1, 2, 7, 8; 1980, c.30, s.1.

70

21(1)

A claim of lien may include claims against different lands of the same owner.

21(2) Any number of persons claiming liens upon the same land may unite in making a claim, but each lien shall be verified as provided in section 20. R.S., c.142, s.20.

22(1) Substantial compliance with sections 20 and 21 is sufficient; and no lien is invalidated by failure to comply with any requirement of those sections unless in the opinion of the judge who tries the action, the owner, contractor, sub-contractor, mortgagee, or some other person is prejudiced thereby, and then only to the extent to which he is so prejudiced.

22(2) lien.

Nothing in this section dispenses with the requirement of filing a claim of

22(3) Where, in the opinion of the judge, some person has been prejudiced by failure on the part of the lienholder or his agent to comply with one or more of the provisions of sections 20 and 21, the judge may allow such amendments to be made as are required to comply with those sections and to permit the action to be tried, without prejudice to any person. R.S., c.142, s.21; 1965, c.27, s.2.

23(1) The Registrar, upon receipt of the proper fee shall file a claim of lien describing it as a "Mechanics' Lien" and shall index the claim of lien in a book to be kept and entitled "Mechanics' Lien Index" and the lien shall appear as an encumbrance against the land or the estate or interest in land therein described.

23(2)

Repealed: 1980, c.30, s.2.

71

23(3) If a claim for lien is settled without an action, the owner is liable to the lienholder for the fees disbursed under this section, and also for a solicitor's fee equal to ten per cent of the sum claimed, but not to exceed twenty-five dollars. R.S., c.142, s.22; 1965, c.27, s.2, 9, 10; 1979, c.41, s.77; 1980, c.30, s.2.

24(1) A claim of lien for wages may be filed at any time before the expiration of thirty days from the doing of the last work for which the wages are owing and the lien claimed.

24(2) A claim of lien for services may be filed at any time before the expiration of thirty days from the completion of the services.

24(3) A claim of lien for material may be filed at any time before the expiration of sixty days from the furnishing of the last material the price of which is claimed for.

24(4) A claim of lien by a contractor or sub-contractor may, in cases not otherwise provided for, be filed at any time before the expiration of sixty days from the completion or abandonment of the contract or sub-contract as the case may be.

24(5) Where a contract is under the supervision of an architect, engineer or other person, upon whose certificates payments are to be made, a claim of lien by the contractor may be filed within the time mentioned in subsection (4) or within seven days after the architect, engineer, or other person has given or has, after application in writing to him by the contractor, refused or neglected for three days to give, a final certificate. R.S., c.142, s.23; 1965, c.27, s.1.

25 Every lien in respect of which a claim of lien is not filed ceases to exist on the expiration of the time herein limited for the filing thereof. R.S., c.142, s.24; 1965, c.27, s.1, 2.

72

26 tanto.

Where a claim of lien is filed, the lienholder shall be deemed a purchaser pro

R.S., c.142, s.25; 1965, c.27, s.1.

27 Every lien in respect of which a claim of lien has been filed ceases to exist on the expiration of ninety days from the filing of the claim of lien or after the expiry of any period of credit mentioned in the claim of lien unless, in the meantime, an action is commenced in which the lien may be enforced, and a certificate of pending litigation in respect thereof issued from the court in the form prescribed by regulation is registered in the proper registry office. R.S., c.142, s.26; 1965, c.27, s.1, 2; 1986, c.4, s.33.

28(1) Where a certificate of pending litigation hereunder is registered, a clerk of the court in which the action was commenced may, upon application supported by an affidavit, issue a certificate verifying

(a)

that the action has been discontinued, or

(b) that, in so far as the land affected by the lien involved in the action is concerned, the action has been dismissed or otherwise finally disposed of, that no appeal therefrom has been entered, and that the time limited for an appeal has expired.

28(2) A certificate issued under subsection (1) may be registered in the proper registry office and when so registered discharges

(a)

every lien sought to be enforced in the action, and

(b)

every certificate of pending litigation registered in relation to the action.

73

28(3) When a certificate issued under subsection (1) is registered in the proper registry office under this section, the registrar shall make due notation in his Mechanics' Lien Index. R.S., c.142, s.27; 1965, c.27, s.11; 1982, c.38, s.1; 1986, c.4, s.33.

29 The rights of a lienholder may be assigned by an instrument in writing, and, if not assigned, pass upon the death of the lienholder to his personal representative. R.S., c.142, s.28.

30(1) A lien may be discharged by a certificate of discharge substantially in the form prescribed by regulation, signed by the lienholder, or by his agent duly authorized in writing, verified by affidavit, and filed in the registry office where the claim of lien is filed.

30(2) Where the amount claimed by the lienholder, or any part thereof, has been paid, the certificate of discharge shall acknowledge receipt of the amount so paid.

30(3) The certificate of discharge shall be received and filed by the Registrar and shall be indexed in the Mechanics' Lien Index and a notation of the certificate shall be made opposite the entry of the claim of lien to which it refers.

30(4) Where the certificate required by section 27 has not been registered or filed within the prescribed time, and an application is made to vacate the filing of a claim of lien after the time for registration or filing of such certificate, the order vacating the lien may be made ex parte upon production of the certificate of the proper registrar certifying the facts entitling the applicant to such order. R.S., c.142, s.29; 1965, c.27, s.1, 12.

31(1) The taking of security or a promissory note or bill of exchange for, or the taking of any other acknowledgment of, the amount of a lien or any part thereof, or the extension of the time for the payment thereof, or the taking of proceedings for the

74

recovery of a personal judgment therefor, or said judgment, does not merge, prejudice, or destroy the lien unless the lienholder agrees in writing that it has that effect.

31(2) Where a promissory note, bill of exchange or other security, taken or accepted as mentioned in subsection (1), is discounted or negotiated by the lienholder, the discounting or negotiation does not prejudice or destroy the lien; but the lienholder shall retain the lien for the benefit of the holder of the promissory note, bill of exchange, or other security.

31(3) Where a lienholder extends the time for payment of indebtedness in respect of which he has filed a claim of lien, subsection (1) does not apply either to the lien or otherwise to the case, unless the lienholder commences an action to enforce the lien, and registers a certificate of pending litigation, within the time prescribed in this Act, and, in such case, he shall take no further proceedings in the action until the expiration of the period by which the time is extended; but where a lienholder gives an extension of time as mentioned in this subsection, if any other person commences an action to enforce a lien against the same land, the lienholder may, in such action, prove and obtain payment of the amount of the indebtedness as if no extension had been given. R.S., c.142, s.30; 1965, c.27, s.1; 1986, c.4, s.33.

LIENHOLDER'S RIGHT TO INFORMATION 32(1) A lienholder may, in writing, at any time demand of the owner or his agent

(a) the terms of the agreement with the contractor in respect of which the work has been, or is to be, performed or the material has been, or is to be, furnished;

(b) the state of the accounts between the owner and the contractor, including the amount already paid under the agreement and the amount due and unpaid thereunder;

(c)

the production for inspection of the contract or agreement, if it is in writing.

75

32(2)

If the owner or his agent

(a) refuses, or neglects within a reasonable time to inform the lienholder of the amount already paid, and the amount due and unpaid thereunder, or

(b) intentionally or knowingly falsely states the terms of the agreement or the amount already paid or the amount due and unpaid thereunder,

and if the lienholder sustains loss by reason of the refusal or neglect or false statement, the owner is liable to him for the amount of the loss and section 43 applies.

32(3) A lienholder may, in writing, at any time demand of a mortgagee or unpaid vendor or of the agent of either of them

(a) the terms of any mortgage on, or agreement for the sale of, the land in respect of which the work has been, or is to be performed, or the material has been or is to be, furnished, and

(b)

a statement showing the amount owing on the mortgage or agreement.

32(4)

If the mortgagee or vendor or the agent

(a)

refuses or neglects within a reasonable time to inform the lienholder

(i)

of the terms of the mortgage or agreement for sale, and

76

(ii)

of the amount owing on the mortgage or agreement, as the case may be; or

(b) intentionally or knowingly falsely states the terms of the mortgage or agreement or the amount owing on the mortgage or agreement;

and if the lienholder sustains loss by reason of the refusal or neglect or false statement, the mortgagee or vendor is liable to him for the amount of the loss in an action therefor, or in any action for the enforcement of a lien, when section 43 shall apply.

32(5) A lienholder may at any time, in writing, demand of a contractor or subcontractor

(a) the terms of any agreement with the owner, contractor, or sub-contractor, to which the person of whom the demand is made is a party, in respect of which agreement the work has been or is to be performed or the material has been or is to be furnished, and

(b) the state of the accounts, thereunder, between the owner and the contractor, or between the contractor and any one or more sub-contractors, or between any subcontractor and any other sub-contractor, including the amount already paid on any agreement and the amount due and unpaid thereunder.

32(6)

If the contractor or sub-contractor of whom the demand is made

(a)

refuses, or neglects within a reasonable time to inform the lienholder

(i)

of the terms of the agreement, and

77

(ii)

of the amount already paid and the amount due and unpaid thereunder, or

(b) intentionally or knowingly falsely states the terms of the agreement or the amount already paid or the amount due and unpaid thereunder,

and if the lienholder sustains loss by reason of the refusal or neglect or false statement, the contractor or sub-contractor is liable to him for the amount of the loss in an action therefor, or in any action for the enforcement of a lien when section 43 shall apply. R.S., c.142, s.31.

ENFORCEMENT OF LIEN 33 A lien may be enforced by action in the court, according to the ordinary procedure of that court, except where the same is varied by this Act. R.S., c.142, s.32; 1966, c.36, s.1; 1972, c.45, s.4; 1979, c.41, s.77.

34

Repealed: 1992, c.84, s.1.

R.S., c.142, s.33; 1987, c.6, s.59; 1992, c.84, s.1.

35

Repealed: 1992, c.84, s.2.

R.S., c.142, s.34; 1992, c.84, s.2.

36

Repealed: 1992, c.84, s.3.

R.S., c.142, s.35; 1992, c.84, s.3.

37

Repealed: 1992, c.84, s.4.

78

R.S., c.142, s.36; 1992, c.84, s.4.

38 Any number of lienholders claiming liens on the same land may join in an action, and an action brought by a lienholder or person claiming a lien shall be deemed to be brought on behalf of all other lienholders on the land in question whose time to bring action has not expired. R.S., c.142, s.37.

39

Repealed: 1992, c.84, s.5.

R.S., c.142, s.38; 1992, c.84, s.5.

40 The party who sets the action down for trial shall, at least ten clear days before the day fixed for the trial, unless the judge directs that a shorter notice may be given, serve a notice of trial, which may be according to the form prescribed by regulation, on all lienholders who have filed their liens as required by this Act, and on all other persons having a registered charge, encumbrance or claim on the land affected by the lien, who are not parties or who, being parties, appear personally in the action; and the service on those not parties shall be personal, unless otherwise directed by the judge, who may direct in what manner the notice of trial may be served. R.S., c.142, s.39; 1965, c.27, s.1; 1992, c.84, s.6.

41 It is not necessary to make other lienholders parties defendant to the action, but every lienholder served with the notice of trial shall for all purposes be deemed a party to the action. R.S., c.142, s.40.

42 A lienholder not a plaintiff in the action shall, within six days after being served with the notice of trial, file in the Court a statement showing the grounds and particulars of his claim, and, if he fails so to do he is, unless otherwise ordered by the judge, precluded from asserting his lien. R.S., c.142, s.41.

79

43(1) At the trial of the action the judge shall proceed to determine all questions that arise therein, or that are necessary to be tried to dispose of the action completely and, subject to section 42, to adjust the rights and liabilities of the persons appearing before him or upon whom the notice of trial was served.

43(2) At the trial the judge shall take all accounts, make all inquiries, give all directions, and do all things necessary to try and otherwise finally dispose of the action and of all matters, questions and accounts arising in the action, and, subject to section 42, to adjust the rights and liabilities of and give all necessary relief to all parties to the action or who have been served with the notice of trial. R.S., c.142, s.42.

44(1) In the judgment the judge may order that the estate or interest charged with the lien be sold allowing, however, a reasonable time for advertising the sale, and the sale shall be by the sheriff unless otherwise ordered and shall be in the manner prescribed for sales under orders for seizure and sale.

44(2) thereof.

The judge may direct the sale of any materials and authorize the removal

44(3) awards.

For conducting a sale, the sheriff shall be allowed the sum that the judge

R.S., c.142, s.43; 1986, c.4, s.33.

45(1) Where a sale is had, the money arising therefrom shall be paid into court and the judge shall make a report on the sale and therein direct to whom the money in court shall be paid, and may add to the claim of the person conducting the sale his actual disbursements incurred in connection therewith; and, where sufficient to satisfy the judgment and costs is not realized from the sale, he shall certify the total amount of the deficiency and the proportion thereof falling upon each person entitled to recover.

80

45(2) The judge may make all necessary orders for the completion of the sale, and for vesting the property in the purchaser. R.S., c.142, s.44.

46 Every judgment in favour of lienholders shall adjudge that the person or persons personally liable for the amount of the judgment shall pay any deficiency that may remain after sale of the property adjudged to be sold; and, in any case where on such sale sufficient to satisfy the judgment and costs is not realized therefrom, the deficiency may be recovered against such person by the usual process of the court. R.S., c.142, s.45.

47 Where a claimant fails to establish a valid lien, he may nevertheless recover a personal judgment against any party to the action for such sum as may appear to be due to him, and that he might recover in an action against such party. R.S., c.142, s.46.

48 Where more than one action is brought to realize liens in respect of the same land, the judge may, on the application of a party to any one of the actions, or on the application of any other person interested, consolidate all the actions into one action, and may give the conduct of the consolidated action to such plaintiff as he may deem fit. R.S., c.142, s.47.

49 The judge may hear the application of a lienholder entitled to the benefit of the action and, after due notice to the other claimants, may make an order giving that lienholder the carriage of the proceedings, and the lienholder shall thereafter for all purposes be deemed to be the plaintiff in the action. R.S., c.142, s.48.

50 A judge may apportion equitably against any number of lands the amounts included in any claim or claims of liens under subsection 21(1).

81

R.S., c.142, s.49.

51(1) A judge may at any time receive security for, or payment into court of, the amount claimed in a filed claim of lien together with such costs as the judge may fix; and the judge may thereupon order the filing of the claim of lien be vacated.

51(2) ground.

A judge may order vacated the filing of a claim of lien upon any other proper

51(3)

Money paid into court or any security given in an action,

(a)

takes the place of the land against which the claim of lien was filed, and

(b) subject to subsection (4), and notwithstanding that no certificate has been filed as required by section 27 is subject to the claim of every person who has filed a lien and, before the time limited by section 27 has expired, has commenced an action,

to the same extent as if the money had been realized by a sale of the property in an action to enforce the lien.

51(4) The amount found by the judge to be owing to the person, the filing of whose claim of lien has been vacated under this section, is a first charge upon the money or security so paid in or given.

51(5) Where a judge orders a filing of a claim of lien to be vacated, the order shall forthwith be filed by the owner in the proper registry office. R.S., c.142, s.50; 1965, c.27, s.1, 2.

82

52 A judge may, on a summary application at any time before or after an action is commenced for the enforcement of a lien, make an order requiring the owner or his agent, the mortgagee or his agent, the unpaid vendor or his agent, or the contractor or sub-contractor, as the case may be, of whom the demand is made under section 32, to produce and allow any lienholder to inspect any such agreement, mortgage, or agreement for sale, and may make such order as to the cost of the application and order as he deems just. R.S., c.142, s.51.

52.1(1) An action to enforce a lien shall be deemed to be discontinued one year after the action is commenced unless

(a)

the action has been set down for trial, or

(b) an application has been made to a judge of The Court of Queen's Bench of New Brunswick for an order continuing the action and a copy of the notice of application has been served on the defendant to the action.

52.1(2) In ordering the continuance of an action, the judge may impose such terms and conditions and give such directions as the judge considers appropriate for the continuation of the action. 1982, c.38, s.2; 1992, c.84, s.7.

NEW TRIAL Repealed: 1992, c.84, s.8. 1992, c.84, s.8.

53

Repealed: 1992, c.84, s.9.

R.S., c.142, s.52; 1992, c.84, s.9.

83

54

Repealed: 1992, c.84, s.10.

R.S., c.142, s.53; 1979, c.41, s.77; 1992, c.84, s.10.

COSTS 55(1) The costs of the action awarded by the judge shall not, exclusive of actual disbursements, exceed in the aggregate an amount equal to the costs recoverable in a regular court action or twenty-five per cent of the amount found actually due, whichever is the greater, and shall be apportioned and borne as the judge directs, but in making such apportionment he shall have regard to the actual service rendered by or on behalf of the parties respectively.

55(2) The Lieutenant-Governor in Council may fix a tariff of costs applicable to Mechanics' Lien proceedings. R.S., c.142, s.54; 1979, c.41, s.77.

56 Where costs are awarded against the plaintiff or other person claiming a lien, the costs shall not exceed in the aggregate an amount equal to twenty-five per cent of the claim of the plaintiff and other claimants, besides actual disbursements, and shall be apportioned and borne as the judge directs. R.S., c.142, s.55.

57 Where the least expensive course is not taken by a party under this Act the costs allowed to him shall in no case exceed what would have been incurred if the least expensive course had been taken. R.S., c.142, s.56.

58(1) Notwithstanding anything contained in the Judicature Act, the costs of and incidental to all actions, applications and orders commenced or made under this Act are

84

in the discretion of the judge, subject always to the limitations provided for by sections 55 and 56.

58(2)

Repealed: 1979, c.41, s.77.

R.S., c.142, s.57; 1979, c.41, s.77.

59 Where a lien is discharged or vacated under section 30 or section 51 or when in an action judgment is given in favour of or against a claim for a lien, the judge may allow a reasonable amount for costs of drawing and registering the lien or for vacating the filing thereof. R.S., c.142, s.58; 1965, c.27, s.2.

60 No fees or commissions are payable on any payment of money into court or on obtaining money out of court in respect of a claim of lien. R.S., c.142, s.59.

PROCEDURE Repealed: 1992, c.84, s.11. 1992, c.84, s.11.

61

Repealed: 1992, c.84, s.12.

R.S., c.142, s.60; 1979, c.41, s.77; 1992, c.84, s.12.

FORMS 1992, c.84, s.13.

85

62 The Lieutenant-Governor in Council may make regulations prescribing forms required under this Act and those forms or ones to like effect may be adopted in all proceedings under this Act. R.S., c.142, s.61; 1973, c.74, s.54.

N.B. This Act is consolidated to July 15, 2005.

86

2 J.K. Dineen v. Morris Music, 2004 NBQB 43 (CanLII)

J.K. Dineen v. Morris Music, 2004 NBQB 43 (CanLII) Date: 2004-01-19 Docket: S/C/77/03 Parallel citations: 271 N.B.R. (2d) 292 URL: http://www.canlii.org/en/nb/nbqb/doc/2004/2004nbqb43/2004nbqb43.html

J.K. Dineen v. Morris Music, 2004 NBQB 043 S/C/77/03

IN THE COURT OF QUEENS BENCH OF NEW BRUNSWICK

TRIAL DIVISION

JUDICIAL DISTRICT OF SAINT JOHN

BETWEEN:

J. K. DINEEN LTD.,

Plaintiff

- and -

87

MORRIS MUSIC LTD.,

Defendant

BEFORE:

Justice William T. Grant

HEARING HELD:

Saint John, N. B.

DATES OF HEARING:

January 19th, 2004

DATE OF DECISION:

January 19th, 2004

COUNSEL:

Harry G. Colwell, appearing on behalf of the Plaintiff

Norman J. Boss, appearing on behalf of the Defendant

88

DECISION

GRANT, J. (Orally)

[1]

In this motion, the plaintiff asks for an order under Section 52.1(b) of the

Mechanics Lien Act to continue a Mechanics Lien action that was started on January
20th, 2003.

[2] Mr. Boss objects to this matter proceeding as a motion whereas the Act uses the term application. However, I agree with the decision of Mr. Justice Angers in the case of James Concrete Ltd. v. Robichaud (l997) 194 N.B.R. (2d) 236 where he ruled that, while it does not apply directly, the spirit of Rule 2.02 of the Rules of Court should prevail in the circumstances. Essentially that Rule says that no process should be defeated because it is started by an incorrect originating process.

[3] I would go further, though, and I would say that while the Mechanics Lien Act speaks of an application, a proper use of the Rules would require a party to use a motion in these circumstances. You do, after all, have an action started and once an action is started, that is the originating process so in my opinion, the use of a motion is the proper way to proceed under Section 52.1(b) of the Act.

[4] The second reason advanced by the defendant to oppose the motion is that there is no good reason given by the plaintiff to allow it. Section 52.1(b) gives the Court discretion to order continuation of an action that has not been set down for trial within a year of being commenced. Whether or not the Court will exercise that discretion will depend on the reasons given for the delay by the plaintiff as well as any prejudice that may result to the defendant, if such an order is made. [5] The reason given by the plaintiff for not complying with the section is set out in the affidavit of the plaintiffs solicitor, Mr. Colwell, at paragraph 3 where he says: Due to circumstances, including inadvertent delay solely on the part of your deponent and not the plaintiff, in contacting potential witnesses and documents with regard to the plaintiffs claim, inquiries of the defendants

89

solicitor with regard to proceedings in the action were not initiated until October 10, 2003.

He reiterated here this morning that it was his fault; it was not the defendants fault, the defendants solicitors fault or the plaintiffs fault. He took full responsibility. This reason has to be balanced against any prejudice that might result to the defendant if the action is discontinued.

[6] The affidavit of the defendants solicitor, Mr. Boss, in opposition to the motion does not reveal any prejudice that would result to the defendant if the order is made. It does reveal that much has happened on the file since October 10th, 2003 and that the action should be ready to be set down for trial reasonably soon. Mr. Boss argued both in his brief and here in court this morning that if the action is continued, the defendants land will be encumbered, limiting its ability to sell but there is no evidence before the Court of any pending sale or other conveyance that is being jeopardized at present by the lien.

[7] Given all those factors, I hereby allow the motion and, pursuant to Section 52.1(b) of the Act, I order that the action be continued on the condition that the plaintiff set it down for trial by the May, 2004 motions day; otherwise it will be deemed to be discontinued. I am not going to make any order for costs in the circumstances. _______________________________________ William T. Grant A Judge of the Court of Queens Bench of New Brunswick

90