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IN THE COURT OF QUEEN'S BENCH OF ALBERTA 3947 JUDICIAL DISTRICT OF EDMONTON ACTION NO. 9103 05525 BETWEEN: ALLAN ANTHONY BUTTNOR Plaintiff - and - JANICE "KELLY" GARIEPY, REED LEARY AND KEN MONTOGOMERY Defendants AND BETWEEN: KEN MONTOGOMERY Plaintiff by Counterclaim - and - ALLAN ANTHONY BUTTNOR AND CHURCH OF SCIENTOLOGY OF ALBERTA Defendants by Counterclaim -------------------------------- MEMORANDUM OF DECISION of M. FUNDUK, Master in Chambers -------------------------------- These are two applications, one by the Defendants Leary and Montgomery to dismiss the action for want of prosecution and one by the Defendants by Counterclaim for summary judgment dismissing the action against them. - 2 - The Plaintiff is a minister in the Church. Leary and Montgomery are police officers. The action was started in March 1991. I do not find it necessary to detail the Plaintiff's claims or Montgomery's counterclaim. The action has not gone anywhere after the close of pleadings. Anything after that is meaningless. It is candidly admitted by counsel for the Plaintiff and the Church that these parties want the total action to be finished by the Plaintiff discontinuing without costs and Montgomery discontinuing his counterclaim without costs. That offer had been made by the Plaintiff and the Church but Montgomery is not agreeable to it. Leary is not a counterclaimant. He finds himself in a position where the Plaintiff is now using his claim against him as leverage to get Montgomery to drop his counterclaim without costs. The Plaintiff has no interest in prosecuting the action. He now uses it solely as leverage to get Montgomery to drop his counterclaim and to get out of the action in total without costs being assessed against him. - 3 - Because he could not get that result by agreement the Plaintiff now counters for a summary judgment dismissing the counterclaim and if it is granted he would then discontinue his lawsuit in total. Counsel for the Plaintiff expressly stated that. In addition, in his written submission counsel for the Plaintiff says that there should be a mutual dismissal. Leary is being used by the Plaintiff as a pawn in a lawsuit where the Plaintiff's ardour for his cause has cooled to the point where he does not want to proceed with the action. To leave the lawsuit stand against Leary when the Plaintiff does not want to prosecute his action and now uses it solely for jockeying purposes as against Montgomery would be an abuse of process. The Court is the master of its process. Abuse of legal process should be stopped. Leary's application to have the lawsuit against him dismissed is allowed with costs to him on the appropriate column. As to the Plaintiff, Montgomery and the Church it is evident to me that they are operating at a subjective level and nobody is prepared to look at this matter in an objective light. To complicate matters even more, Montgomery has one counsel acting - 4 - for him as a defendant and a different counsel acting for him as a counterclaimant. Be that as it may, if the counterclaim stands the claim against Montgomery should stand. As between these people I do not find that either has made out a case for their respective applications so the Plaintiff, Montgomery and the Church should be allowed to continue as against each other. As neither is successful there will be no costs. _Decision_ 1. The action is dismissed against Leary with costs to him on the appropriate column. 2. Montgomery's application to dismiss the action as against him is dismissed without costs. 3. The Plaintiff's and the Church's application for summary judgment dismissing the counterclaim is dismissed without costs. 4. The Plaintiff is given leave to take a fresh step in his claim and Montgomery is given leave to take a next - 5 - step in his counterclaim, all without costs. (signed) M FUNDUK ----------------- M. FUNDUK M.C. C.Q.B.A. DATED at Edmonton, Alberta, this 10 day of June, 1994. COUNSEL: D.S. Scorgie Lennie & Co. Counsel for the Plaintiff and Defendants by Counterclaim Ms. A. Porter Brownlee Fryett Counsel for the Defendants Leary and Montgomery H.J.D. Henderson Counsel for the counterclaimant Montgomery ACTION NO. 9103 05525 ---------------------------------------- IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON ---------------------------------------- BETWEEN: ALLAN ANTHONY BUTTNOR Plaintiff - and - JANICE "KELLY" GARIEPY, REED LEARY AND KEN MONTGOMERY Defendants AND BETWEEN: KEN MONTOGOMERY Plaintiff by Counterclaim - and - ALLAN ANTHONY BUTTNOR AND CHURCH OF SCIENTOLOGY OF ALBERTA Defendants by Counterclaim ---------------------------------------- MEMORANDUM OF DECISION of M. FUNDUK, Master in Chambers ---------------------------------------- (Seal): JUDICIAL DISTRICT OF EDMONTON FILED JUN 10 1994 FILED Clerk of the Court
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Martin Hunt / martinh@islandnet.com / August 15 1997