W. Paul Sherwood Estate v. Cullinan et al. –, 2014 NBQB 070

S/C/499/2012 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN Citation: W. Paul Sherwood Estate v. Cullinan et al. – 2014 NBQB 070 Date : 2014 02 05 BETWEEN: NORMAN GRANT SHERWOOD, as administrator of W. PAUL SHERWOOD ESTATE Plaintiff - and - DONALD CULLINAN, SR., L. RONALD PATSTONE, GAYLE C. PATSTONE, MARIANNE G. GILLAN, CHRISTOPHER R. PATSTONE Defendants BEFORE: Justice William T. Grant HEARING HELD: Saint John DATE OF HEARING: February 5, 2014 DATE OF DECISION: February 5, 2014 COUNSEL: Norman Sherwood for the Plaintiff Maria G. Henheffer, Q.C. and Ashlee E. Scott for the Defendants DECISION

GRANT, J (Orally) [ 1 ] This is a motion by the plaintiff, Norman Grant Sherwood, to extend the time for service of his Notice of Action and Statement of Claim under Rule 3.02 of the Rules of Court . [ 2 ] Mr. Sherwood started this action on November 13, 2012. He represents himself. Being unfamiliar with the Rules of Court in New Brunswick, he was not aware that he was required to serve the Notice of Action with Statement of Claim on the defendants within six months of the date that it was issued or by May 13, 2013. [ 3 ] In November of 2013, Mr.

Sherwood contacted the Clerk of the Court to ask about a trial date. He was told no date could be set until all pre-trial procedures were complete and it eventually became clear he had not served the originating process on time. He was told he would need an order of the Court to extend the time for service so he brought this motion. [ 4 ] The test for deciding whether to grant an extension of time has been described as the “substantial injustice” test: see Shea v Bentley et al 2011 NBQB 199 per Glennie J. at para 28. [ 5 ] In the case of Bridges v.

Daeres (1987) 83 N.B.R. (2d) 330 (C.A.) the test was set out by Justice Ayles at page 337 as follows: “ … the failure … (to serve) must do an obvious and substantial injustice to … (the plaintiff) … while at the same time … (extending the time) … must not work any substantial injustice to … (the defendants). [ 6 ] In this case, Mr. Sherwood, as administrator of the estate of W. Paul Sherwood requests an order for the return of lands at or near Brown’s Lake in St. John County which he alleges were obtained illegally by Roger Patstone and/or his estate. W.

Paul Sherwood, together with Roger Patstone, was a shareholder of Sherwood Real Estate limited in the 1960’s and 1970’s. [ 7 ] The defendants are the solicitor and the beneficiaries of the estate of Mr. Patstone who died intestate in 1987. [ 8 ] There is also evidence in the Record of an assignment dated April 26, 1991 and registered in the Saint John County Registry Office on December 11, 2000 wherein the said W.

Paul Sherwood assigned to Gary Sherwood all his right and interest respecting his involvement in Sherwood Real Estate Limited which, by then was known as Patstone Real Estate Limited. [ 9 ] These facts make it plain and obvious to me that this Court should deny this motion for the following reasons. First, the estate of W. Paul Sherwood is not the proper plaintiff in respect to any claim concerning the shares of W. Paul Sherwood in Sherwood Real Estate Limited or Patstone Real Estate Limited as he was assigned all his right and interest in Sherwood Real Estate Limited to Gary Sherwood.

Second, the defendants had no beneficial interest in Sherwood Real Estate Limited or Patstone Real Estate Limited. Their only interest was as beneficiaries of their father’s estate. Moreover, by signing a quit claim deed, they did not assert any ownership to any land. They merely denied having any such ownership. [ 10 ] Third, there is no evidence or even any assertion in the statement of claim that the land that the plaintiff claims in this action is owned by any of the defendants. Therefore, even if Norman Grant Sherwood or the estate of W.

Paul Sherwood were successful in proving this claim, no order could be made against the defendants that would give the plaintiff the relief claimed in this action. [ 11 ] The plaintiff also seems to have a grievance concerning the procedure which occurred at Service New Brunswick under the land titles system. There are procedures for rectifying the title register under the Land Titles Act S.N.B. 1981 c. L-1.1 which would have to be followed before any rectification of the title could be considered by this Court and there is no reference in the statement of claim to the Act or that procedure. [ 12 ] In

summary, I find that this action, as it is currently framed, is defective in so many respects that no obvious and substantial injustice would result to the plaintiff if he is not given an extension of time to serve the Notice of Action and Statement of Claim and I therefore dismiss this motion. [ 13 ] I also order Mr. Sherwood to pay costs of this motion in the amount of $500 inclusive of disbursements which must be paid before

any further claim in respect to this matter can be filed with the Clerk. ___________________________________________ William T. Grant Judge of the Court of Queen’s Bench of New Brunswick