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Action No. 9103-05525 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON (filing seal) 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 -------------------------------------------------------------------- BRIEF OF ARGUMENT OF THE RESPONDENT KEN MONTGOMERY -------------------------------------------------------------------- LENNIE & COMPANY HAMISH J. D. HENDERSON Barristers & Solicitors Barrister & Solicitor 1005, 10010-106 Street 205, 10715S-124 Street Edmonton, Alberta Edmonton, Alberta T5J 3L8 T5M OH2 Solicitors for the Applicants Solicitor for the Respondent (Defendants by Counterclaim) (Plaintiff by Counterclaim) I. _SUMMARY OF FACTS_ The Respondent, KEN MONTGOMERY, accepts the Summary of Facts as set out by both Counsel for the Defendant sand Counsel for the Plaintiff/ Defendants by Counterclaim with the following additions and exceptions: a) On July 27, 1992, Counsel for the Plaintiff by Counterclaim sent correspondence to the Solicitor for the Plaintiff and Defendants by Counterclaim, Hamish J. D. Henderson, indicating that he was now acting on behalf of the Plaintiff by Counter claim, with respect to the Counterclaim. The Defendant by Counterclaim was made fully aware of this change of Counsel by the correspondence, and a Notice of Change of Solicitors has now been duly filed and served; b) On July 27, 1992, Counsel for the Plaintiff and Defendants by Counterclaim received correspondence from the current Solicitor for the Plaintiff by Counterclaim, proposing settlement. No acceptance, counter offer, or reply of any form has been forth- coming since that date; III _ARGUMENT_ 1. The Defendant by Counterclaim submits that a main claim and counterclaim stand or fall together where the facts are related and delay can be attributed to both sides. It is submitted that the facts are not particularly related, and it is further submitted that the delay is that of the Plaintiff and Defendant by Counterclaim. The Plaintiff by Counterclaim has attempted to move this matter along as expeditiously as possible. The Plaintiff by Counterclaim, in his Affidavit filed May 17, 1994, deposes that it is his information and belief that the Defendant by Counterclaim generally attempt to delay actions as opposed to moving them along expeditiously. 2. The Defendant by Counterclaim submits that test to be met by the Defendants by Counterclaim is whether it is manifestly clear or beyond a reasonable doubt that there is no bona fide triable issue. It is submitted by the Plaintiff by Counterclaim that there are clearly two triable issues set out in the Counterclaim of the Plaintiff by Counterclaim, that of Defamation and Malicious Prosecution. If in fact the Statement of Defence raises any valid Defences to the Claim, particularly privilege and truth and reasonable and probable cause, then it is respectfully submitted that in order for the Defendant by Counterclaim to show that these are arguable Defences, leaving no triable issue, then at the very least, Cross-Examination upon the Affidavit of the Plaintiff by Counterclaim would be necessary. In particular, with respect to the claim of Defamation, the Defendant by Counterclaim must show either the truth of the statements made, or that some form of privilege attaches to the Statements. It is submitted that the Statement of Claim and Affidavit of Susan Kerr are not in and of themselves sufficient to raise this Defence and show on a balance of probabilities that there is no merit in the Counterclaim of the Plaintiff by Counterclaim. In respect of the issue of malicious prosecution, the Defendant by Counterclaim suggests that the evidence of Susan Kerr raises a reasonable and probably cause, in the absence of malice, for initiation of proceedings. The Counterclaim specifically refers to malice, and it is submitted that the Affidavit evidence of Ken Montgomery does show malice. However, in the circumstances, the conflicting positions taken in the Affidavits filed would, it is submitted, call for a viva voce evidence in order for a proper determination of the issue. IV _REMEDY SOUGHT_ 1. This Respondent requests this Honourable Court to refuse the application of the Applicant for Summary Judgment in the nature of dismissal of the Counterclaim, and to direct that this matter proceed to Trial without further delay. All of which is respectfully submitted (signed) -------------------------- HAMISH J. D. HENDERSON BARRISTER & SOLICITOR 205, 10715-124 STREET EDMONTON, ALBERTA T5M 0H2 SOLICITOR FOR THE PLAINTIFF BY COUNTERCLAIM, KEN MONTGOMERY
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Martin Hunt / martinh@islandnet.com / August 15 1997