Scientology in Canada

Al Buttnor/Ken Montgomery Case: 2

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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

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