2010-11-29 Summary Judgment: Defendants' Revised Factums of Motion and of Reply
Evidence used in these factums is found here:
Upon leave by Justice Tabib, the Defendants also submitted their interpretation of the Aga Khan's appearance at discovery in the following paragraphs:
10. The court record reflects the fact that the Plaintiff did attend in Canada to be questioned on October 15, 2010. Thereafter, on November 2, 2010, the Court fashioned a procedure for the Plaintiff to introduce evidence relating to that discovery in a motion. No evidence whatsoever has been submitted by the Plaintiff to support the inadmissible evidence in His case, or the unsubstatiated claims that the Aga Khan did not consent in 1992, or that the Aga Khan initiated or instructed the terms in the statement of claim.
11. The lack of true and tested evidence from the Aga Khan to support this action is not surprising and supports the Defendants. The Aga Khan does not need to give any public evidence or start a lawsuit in order to be obeyed by the Defendants who have pledged unconditional obedience. He has many other simple means of dealing with this in a definite and binding manner. On the other hand, if, as evidence shows, He has been misrepresented in this case, then there is no use in His giving contradictory evidence either: it would go against the conciliatory approach that He favours, and it would only further embarrass community leaders and undermine the Ismaili institutional structure.
18e. e) Paragraph #108 is wrong: Defendants have not asked for any meeting with the Aga Khan since the Discovery, and have not shown any doubt about understanding the Aga Khan's actual intentions.
8. In responding to arguments set out in paragraph 2 of his memorandum (Tab 1), that the
defendants are continuing with their allegations “even after the attendance of the Plaintiff for
discovery on October 15, 2010 as reflected in the court record.”, this defendant states that
Mr. Gray confirmed with Prothonotary Tabib as reflected in the Direction of the Court dated
November 2, 2010, that he would continue with the Motions for Summary Judgment and not
bring a Motion for Judgment. With respect to the discovery, the court directed as follows:
“To the extent any party were to attempt to raise, at the hearing of he motion for
summary judgment, anything of what occurred at the attendance on discovery, they
would be precluded from doing so unless admissible evidence of those facts were put
before the court. The motions fo summary judgement are now fully briefed. No
further evidence may be filed for use at the hearing of the motions without leave of
the court, to be sought by way of motion.”
9. The attendance at discovery is not evidence that the Aga Khan is the real plaintiff, that has authorized the action. The Aga Khan, although a person, is an “institution”. He functions as a government in his own right, a King without a Kingdom, and his “kingdom” runs as a government runs.
15. In responding to arguments set out in paragraph 53, 96 and 108 of the memorandum (Tab 1), Mr. Gray submits that “the Plaintiff showed up as ordered for his examination for
discovery...” this defendant states that had the Aga Khan been the real Plaintiff, then Mr.
Gray would have brought a motion as Directed on November 2, 2010, to prove the fact he
wishes this court to infer from facts that are not in the nature of evidence filed in these
motions. Mr. Gray also had an option to bring a Motion for Judgment, but as noted by
Prothonotary Tabib in her Direction dated November 2, 2010, that Mr. Gray refused to do
16. In Cooper v. R., Justice Wyman W. Webb J. of the Tax Court stated with respect to adverse inference: In the Law of Evidence in Canada, third edition, by Justice Lederman, Justice Bryant and Justice Fuerst of the Superior Court of Justice for Ontario, it is stated at p. 377 that:
“§6.449 In civil cases, an unfavourable inference can be drawn when, in the absence
of an explanation, a party litigant does not testify, or fails to provide affidavit
evidence on an application, or fails to call a witness who would have knowledge of
the facts and would be assumed to be willing to assist that party. In the same vein, an
adverse inference may be drawn against a party who does not call a material witness
over whom he or she has exclusive control and does not explain it away. Such failure
amounts to an implied admission that the evidence of the absent witness would be
contrary to the party's case, or at least would not support it.”
Cooper v. R., 2010 CarswellNat 2499, at para. 20
Revised Memorandum of Fact and Law, Tab 16
58. In view of this defendant's unwaivering allegiance to the Imam, the fact that after Discovery he has maintained that the Statement of Claim does not represent the Imam's intentions is sure evidence of the Imam’s position in this matter.
79. There is a very special relationship of Love and, as described in the Ismaili constitution, "a permanent spiritual bond between the Imam and the murid" who is considered His spiritual child. Mr Tajdin pointed out a couple of times to Gray that "If you don't understand the relation between me and my Imam, it will be very difficult for you to even ask questions.". Because of this special relationship, the Defendants have consent. Because of this special relationship, Gray did not obtain any admissible evidence from the Aga Khan to back his case, not even at the discovery. And because of lack of admissible evidence from the Aga Khan, this action does not belong in a legal setting and must be dismissed.