The settlement offer that wasn't!

Good Day Readers:

On September 29, 2009 MMF taxpayer financed lawyer Mr. Murray Trachtenberg (www.ptlaw.mb.ca; mtrachtenberg@ptlaw.mb.ca) tendered a "most generous" unsolicited offer to settle the Federation's defamation lawsuit against CyberSmokeSignals which effectively began in mid-September 2003 when President David Chartrand was able to get a resolution passed by his provincial Board of Directors to have an attorney monitor the site in search of litigious material. The "defamation watch" had begun.

His letter was marked "Without Prejudice" which usually means it cannot be reproduced or published. As an unrepresented Defendant without any formal legal training we decided to undertake some research.

We determined when a document previously marked "Without-Prejudice" is attached as an Exhibit to an Affidavit or Motion Brief, for example, subsequently filed with Queen's Bench File Registry, the package becomes publicly available. In other words, the "Without-Prejudice" designation is trumped - in effect, it has been waived. The only exception would be if a judge were to seal a document (rarely done) which has not happened in this case.

Earlier this month we successfully filed a Motion Brief (containing Mr. Trachtenberg's magnanimous settlement offer) to have the trial date adjourned. Based on our research, we have concluded the September 29, 2009 letter is now publishable. A new trial date cannot be set until sometime after April 19, 2010 when our appeal is scheduled to be heard and a decision eventually handed down.

The fatal flaw in "the offer" is it asks us to admit we're unaware of any wrongdoing on the part of the Manitoba Metis Federation before negotiating a Consent Agreement. This is essentially what former Defendant Vanessa Everton agreed to in a letter to President Chartrand dated November 9, 2006. She was subsequently dropped as a litigant. Problem for Ms. Everton is we're in possession of e-mail from her which suggest otherwise.

What if the Plaintiffs' and Counsel made outrageous demands which were totally unacceptable? How could we then go to trial before a judge and jury having signed such a letter which effectively removed all our defences?

Sincerely,

Clare L. Pieuk

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September 29, 2009

File No: 2003-20

"Without Prejudice"

Via Email/Mail

Mr. Clare L. Pieuk
2-371 Des Meurons Street
Winnipeg, Manitoba R2H 2N6

Dear Mr. Pieuk:

Re: Manitoba Metis Federation Inc. et al v. Terry Belhumeur et al - Queen's Bench File No. CI 05-01-41955

As you know, the trial of this matter is currently scheduled for March 1 - April 9, 2010 inclusive. To date, the Court has pronounced several costs awards against you requiring you to pay costs to my clients with respect to various motions that have been brought. Although I shall be asking Justice Simonsen to reduce the number of days scheduled for trial as I am of the opinion that many of your proposed witnesses should not be allowed to testify on irrelevant matters, it is clear that the trial of this action will involve a substantial amount of Court time. The costs of that will be awarded by the Court to the successful party will be significant.

While my clients are fully prepared to proceed to trial and are confident of the outcome, I am nevertheless writing to you to raise the possibility of resolving this matter by way of settlement. Such resolution would have to involve two things namely:

(a) You issuing a letter of retraction and apology (in the same form as used by Ms. Everton) and

(b) The entering of a consent judgment against you and Mr. Belhumeur requiring you to pay an agreed to amount to the plaintiffs.

In the past, you have refused to issue an apology and retraction. I am not going to spend a lot of time attempting to settle this claim with you if that continues to be your position.

In the event this matter proceeds to trial and a judgment is obtained against you, the plaintiffs will take all possible steps to realize upon that judgment to its full extent. I note that in the past, you have alluded to the possibility that such a judgment could not be recovered as you do not have sufficient assets and/or will consider making an assignment in bankruptcy for the main purpose of evading a civil judgment, it is by no means a guarantee that you will be dischared unconditionally. The plaintiffs will oppose any such discharge and will seek to make it conditional upon the payment of part of the judgment.

I urge you to reconsider your position. It is clear that all of these years later you do not and did not ever have sufficient evidence to prove the truth of the allegations contained in the Election Petition despite your portest on repeated occasions that you do. As well, as I have indicated in Court, the nature of a defamation case allows the Court to take into consideration the actions of the defendant right up to time judgment is pronounced. Your failure to apologize and your insistence on the turth of defamatory statements are aggravating factors which will substantially increase the amount of an award of damages in this case.

Upon receipt of written confirmation from you that you are prepared to issue a written apoplogy and retraction in the form previously used by Ms. Everton, I am prepared to discuss the form of consent judgment and the amount that will be required by the plaintiffs.

In the event I do not receive such written confirmation from you, I will assume that you are not interested in attempting to settle this claim and that you require this matter to proceed to trial.

I look forward to hearing from you.

Yours truly,

MURRAY N. TRACHTENBERG