THE QUEEN’S BENCH
Winnipeg
Centre
BETWEEN:
Fenton Group Investment Ltd. and Nevill Fernando
Plaintiffs,
-and-
Riverbend Realty Ltd. and The City of Winnipeg
Defendants.
NOTICE
OF MOTION
Nevill Fernando
1001-400 Stradbrook Avenue
Winnipeg MB R3L 2P8
Phone and Fax: 204 202 1188
(Name, address, and telephone number of party filing)
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THE QUEEN’S BENCH
Winnipeg Centre
BETWEEN:
Fenton Group Investment Ltd. and Nevill Fernando
Plaintiffs,
-and-
Riverbend Realty Ltd. and
City of Winnipeg
Defendants.
NOTICE OF MOTION
1.
THE MOTION IS FOR:
I. An order to set aside the
Defendant The City of Winnipeg Notice of Motion to Strike Statement of Claim.
II. An order to provide
Statement of Defence against Plaintiffs Statement of Claim.
III. An order to engage in
closing the pleading and enter into mediation and resolution process in good
faith.
IV.
Such or any further
relief as counsels may advise and this honorable court may permit.
2.
THE GROUNDS FOR MOTION
ARE:
I. The Plaintiffs states
that all the requests to this court by the Defendant in paragraph 1 of the
Notice of Motion to Strike Statement of Claim is exiguity, irrelevant or
inappropriate, since that concealing only lack of factual coherences and
contextual validities with which Defendant having that motivation for filing
the Statement of Defense against factual evidences supporting the Statement of
Claim of the Plaintiffs as not meaningful in this case seems to be well vested at
hand with the Defendant and therefore that Defendant’s inability for conveying
an argument to this court in novel propositions against
the facts pleaded relevant to be accepted by the cause of an action by
way of a Statement of Defense in this is appeared to be the issue with the
Defendant for filing the Notice of Motion to Strike Statement of claim for this
case.
II. In reply to Defendant’s
motion for grounds in this by paragraph 2.a., 2.e., 2.f., and 2.g. of the
Notice of Motion to Strike Statement of Claim:
a. Plaintiffs states that Defendant does not have any good
ground with reason by which this Motion to Strike Statement of Claim is to be
brought forth meaningful, as stated above in paragraph 2.I. of this Plaintiffs’
Notice of Motion.
b. Plaintiffs states that it is only the ‘gospel of
commonsense alternative’ that Defendant tries to seek:
“The other permitted attacks on pleadings have a fine 18th
century sound to them – you can claim
your opponent’s pleading as:
i. “scandalous”;
ii. “frivolous”;
iii. “embarrassing”;
iv. “vexatious”;
v. and “abuse of process”.”
III. In reply to Defendant’s motion for ground by paragraph 2.b.
and 2.d. of the Notice of Motion to Strike the Statement of Claim, Plaintiffs
states:
a. The pleadings discloses a cause of an action in common
ground for both Defendant parties to be in action to compensate the losses of the
Plaintiffs either by paying off the proposed $1,085,000.00 plus exemplary
damages to the Plaintiffs as outlined or by paying off the respective sum
alternatively by suing one Defendant party the other Defendant party for their
respective shares in this claim to be fair;
b. This case represents an identifiable class in common
ground with which the proposed sub category is only temporary for this court to
direct whatever or wherever the court may seem appropriate to;
c. The Plaintiffs seeking certification for this action has
its common ground as the preferable procedure for resolving the claim;
d. There exist representatives in both parties who can
represent the class interests either by seeking advice of the court for
direction or by bringing forward a better proposal to the judge;
e. And as such, the Defendant is only challenging the novel
propositions of law.
IV. In reply to the Defendant statement in paragraph 2.e.i.,
2.e.ii., 2.e.iii., and 2.h. of the Defendant’s Notice of Motion to Strike
Statement of Claim, Plaintiffs states that the paragraph 1 of the Plaintiffs
Statement of Claim is correct and reinstate the paragraph 2.I. of this
Plaintiffs’ Notice of Motion.
3. THE FOLLOWING DOCUMENTARY
EVIDENCE that will be used at the hearing of this motion:
I. Statement of Claim filed
on September 9, 2020
II. Defendant The City of
Winnipeg Notice of Motion to Strike Statement of Claim
III. Such further and other evidence as counsel advise and this
honorable court may permit
October 30, 2020
Nevill Fernando and Fenton Group
Investment Ltd.
1001-400 Stradbrook Avenue
Winnipeg, MB R3L 2P8
Phone and Fax: 204 202 1188
(Name, address, and
telephone number of party filing)
To:
Director of Legal Services
The
City of Winnipeg
3rd
Floor, King Street
Winnipeg, MB R3B 1J1
Monica
Muller and Duglas Brown
Counsels for the Defendant The City of Winnipeg
And to:
MLT AIKINS LLP
Barristers
and Solicitors
30th Floor, 360 Main Street
Winnipeg MB R3C 4G1
Greg
M. Fleetwood and Andrew W. Baumford
Counsel for the Defendant Royal LePage Riverbend Realty Ltd.