SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-466705

DATE: 2013/06/27

RE: Iain Robert Rousay

Plaintiff

– and –

John Rousay, Lauria Mae Lainson and Beverley Frances Rock

Defendants

BEFORE: Carole J Brown J.

COUNSEL:
Iain Rousay, Representing himself

William Levitt, Counsel for the Defendants

HEARD: June 20, 2013

ENDORSEMENT

[1] The defendants, John Rousay ("John"), Lauria Mae Lainson ("Lauria") and Beverley Frances Rock ("Beverley") (collectively "the defendants"), bring this motion to strike the plaintiff's Amended Statement of Claim dated October 31, 2012 and amended on November 21, 2012, without leave to further amend, on the ground that the claim discloses no reasonable cause of action, seeks relief on behalf of individuals who are not parties to the action and contains irrelevant allegations which may prejudice or delay the fair trial of the proceedings, are scandalous frivolous or vexatious or are an abuse of the process of the court. In the alternative, the defendants seek an order expunging portions of the claim.

[2] The plaintiff, Iain Robert Rousay ("Iain" or "the plaintiff"), and the defendant, John, are brothers. The claim involves the estate of their mother, Mary Hazel Hoenderdos ("Mary").

[3] The Amended Statement of Claim seeks damages from the defendant, John, in the amount of $100,000, alleging that John, as the power of attorney and fiduciary for their mother's estate, has committed fraud, resulting in unjust enrichment, has caused the plaintiff harm and deprived or excluded him from any benefit of the financial assets of their mother's estate, and has maliciously spoken false statements to the plaintiff regarding the plaintiff’s legal inclusion in the estate of their mother, that John "secretly sold the family home" and disposed of all the contents and also alleges deceit of a false address related to the co-defendant, Beverley. He seeks a constructive trust for money invested in the family home prior to his leaving it in 1970.

[4] With respect to the allegations that John owes him a fiduciary duty, he alleges that this arises as a result of Iain being "potential beneficiary" of their mother's estate; John being a trustee of the estate; and John and Iain being brothers.

[5] As against the defendant Lauria, who is John's common-law partner, the plaintiff alleges that she lived as John's partner for 12 to 15 years; is the sole owner of the home in which they live, and which she owned before she and John lived together; may have access to all of John's financial assets and may be the primary beneficiary of any/all of John's financial assets.

[6] As against the co-defendant, Beverley, he alleges that she was appointed as a power of attorney pursuant to the Power of Attorney for Property (" POAP") dated March 2, 1985, and provided a false address on the POAP, thereby preventing the plaintiff from being able to serve the claim on her, and in that regard, alleges "deceit of false address".

[7] The defendants, John and Beverley, are the named estate trustees, executors and trustees of the Will of his mother, Mary Hazel Hoenderdos, dated May 27, 2003, and prior to her death on May 25, 2011, were appointed as continuing powers of attorney for Mary pursuant to the Transition Continuing Power of Attorney for Property of Mary Hazel Hoenderdos dated March 2, 1995. John is designated in Mary's Will as the sole beneficiary of the estate. In the event of his death, her grandson, David John Rousay is the sole beneficiary.

[8] Iain is not a beneficiary of the estate. He was never a power of attorney for the estate. Pursuant to the evidence before me, he moved from the family home 43 years ago when he was 19 years old. He has not challenged the Will in the context of the estate. He has, rather, brought this claim as against his brother and others. As he is not a beneficiary of the estate and was not dependent on his mother at the time of her death, he has no standing to bring this claim. While he claims relief also on behalf of four siblings, none of them is a party to this action and he therefore does not have standing to seek damages on behalf of non-parties.

[9] In submissions, the plaintiff submits that he brought this action, as his brother, John, had refused to provide him with a copy of their mother's Will, and that it was only after commencing the action that he was provided with a copy of the Will.

[10] He submits that he was entitled, pursuant to the Estate Administration Act, RSO 1990, c. E. 22, as amended, to a copy of the Will as a "potential beneficiary" of the estate, and John's failure to provide to him a copy of the Will was a breach of John's fiduciary duty to Iain. He was not able to provide the section of the Act that he relied on. Counsel for the moving party indicated that while he had looked for such a provision, he did not find one and was not aware of such a provision. Iain acknowledges that, as he is not a named beneficiary in the Will, he is not entitled to share in the estate assets. He claims however for legal and emotional stress due to the breach. He further submits that, in addition to not being provided with a copy of the Will as a potential beneficiary, he is proceeding with the lawsuit based on the way he was treated, and his brother's acts of bad faith.

[11] It is clear from a reading of the Will that Mr. Rousay is not a beneficiary of the Will and therefore does not have a claim as against the estate trustees or an entitlement to share in the benefits of the estate. An action for failure of the estate trustee to provide the plaintiff, who is not a beneficiary to the estate, with a copy of the Will is not an actionable wrong. Further, while it is unfortunate that there is such animus between the brothers, claims based on the way Iain's brother treated him or on alleged acts of bad faith as framed in the Amended Statement of Claim, are also not actionable wrongs.

The Law

Rule 21.01(1)(b)

[12] Rule 21.01(1)(b) of the Rules of Civil Procedure provides as follows:

A party may move before a judge,

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

[13] The purpose of Rule 21.01(1)(b) is to enable a judge to strike from the pleadings claims and defences that do not, in law, have a chance of succeeding. The test is whether, assuming the plaintiff can prove the allegations pleaded in the Amended Statement of Claim, the plaintiff will have established a cause of action entitling him to some form of relief. The test for determining whether a pleading should be struck is whether, assuming the facts as stated in the Amended Statement of Claim can be proven, it is plain and obvious that no reasonable cause of action is disclosed.

[14] No evidence is admissible on a motion under Rule 21.01(1)(b). While the issue of whether the claim discloses a reasonable cause of action must be based on the Amended Statement of Claim alone, the court is entitled to consider documents specifically referred to and relied on in the pleadings: Webb Offset Publications Ltd v. Vickery (1998), CanLll 14858 (Ont. Gen Div). In this case, the plaintiff referred to the following documents in the Amended Statement of Claim: the Will, the POAP, the Transfer of the family home, and a police complaint lodged by the plaintiff's brother, Richard. These documents can therefore be considered in the determination of the issues before the court.

Analysis

Claim for Breach of Fiduciary Duty

[15] The defendants submit that the plaintiff has no standing or capacity to commence this action.

[16] While the plaintiff pleads that John owes him a fiduciary duty by virtue of his being a "potential beneficiary" of the estate, it is clear from the Will that he is not a named beneficiary of the estate. While the executors of the estate owe a fiduciary duty to the beneficiaries and creditors of the estate, no fiduciary duty exists with respect to non-beneficiary strangers to the estate. As the plaintiff is not a beneficiary, John owes him no fiduciary duty in that capacity. It has been judicially determined that a non-beneficiary to the estate does not have standing or capacity to bring an action against a trustee for breach of fiduciary duties owed to the beneficiaries of the estate and that such an action will be struck: Ontario (Atty. Gen.) v. Ballard Estate, 1995 CarswellOnt 181 (Gen. Div. Commercial List)

[17] Iain further alleges that John owes him a fiduciary duty by virtue of the fact that they are brothers. The Supreme Court of Canada in Lac Minerals Limited v. International Corona Resources Limited, 1989 34 (SCC), [1989] 2 S.C.R. 574 established the essential elements for a fiduciary relationship, as follows: (1) the fiduciary has scope for the exercise of some discretion or power; (2) the fiduciary can unilaterally exercise the power or discretion so as to affect the beneficiaries’ legal or practical interest; and, (3) the beneficiary is peculiarly vulnerable to the fiduciary holding the discretion: see Eltom v. Brandt Properties Ltd, 1996 CarswellSask 800 (Q. B.). There is, at law, no fiduciary duty arising from a filial relationship per se. Where the relationship in issue is one which does not fall within a recognized category of fiduciary relationship, the pleadings must set out what facts are relied on to determine whether the essential elements of a fiduciary relationship exist: see Harelkin v. McKay, 2009 CarswellSask 36 (Q. B.). In order for an ad hoc fiduciary duty to arise, the plaintiff must show, in addition to the vulnerability arising from the relationship, (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary's control (the beneficiary or beneficiaries) and; (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control: Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24, 2011 CarswellAlta 763 (S.C.C.). This was not done. The Amended Statement of Claim does not plead material facts to establish the requirements for an ad hoc fiduciary duty.

[18] For the foregoing reasons, the claims for breach of fiduciary duty do not disclose a reasonable cause of action. Accordingly, the pleadings alleging breach of fiduciary duty must be struck.

Claim for Malicious False Statements

[19] The plaintiff alleges that John maliciously spoke false statements to the plaintiff regarding the plaintiff's legal inclusion in the estate of their mother. There is no such action known to law. Further, the plaintiff fails to identify the alleged false statements. In the event that these statements include the fact that John related to Iain that he was not a beneficiary in the Will, those statements are true, based on a reading of the Will. The plaintiff is not a named beneficiary of the estate. After this lawsuit was commenced, he was provided, as part of the documentary discovery process, with a copy of the Will, which establishes this. Finally, as regards the alleged malicious false statements, the plaintiff has pleaded all allegations with no facts in support. Allegations of malice require that the plaintiff plead the circumstances and full particulars or facts sufficient to enable the trier of fact to properly infer intentional or malicious conduct, which has not been done: Dyce v. Ontario, 2007 CarswellOnt 3437 (Sup. Ct.).

[20] For these reasons, the claims for malicious false statements are radically defective; they are not supported by material facts, and accordingly, the plaintiff's claim for malicious false statements should be struck.

[21] In his submissions, the plaintiff indicated that the malicious false statements were also aimed at his brother, Richard, who is not a party to this action. He submits that his brother, Richard, was told by John not to call their mother, as she had Alzheimer's and did not know who he was, which, he argued, was untrue and constituted malicious false statements. He further claims that John also made malicious false statements to the other siblings regarding their legal inclusion in the Will. As noted previously, none of the siblings of Iain are parties to this action and therefore these claims regarding the other siblings are irrelevant and improperly included.

Claim for Secret Sale of Family Home

[22] The plaintiff alleges that the defendant, John, "secretly sold" the family home belonging to his mother and John, and "secretly disposed of all of its contents". The transfer of property and evidence before me shows that John and Mary were the registered owners on title of the family home prior to its sale on November 9, 2010, while Mary was still living. While, in some families, such an occurrence may be communicated to other family members as a matter of course, it was not communicated to the extended Rousay family. There was no legal duty to do so. It is clear that relations were strained, at best, in the Rousay family. There was no duty owed by John to advise Iain of the sale of the home nor an obligation to advise him of the disposal of its contents, either as power of attorney for property or estate trustee in all of the circumstances of this case. I note further, from the evidence, that the plaintiff moved from that home in 1970 when he was 19 years old and 40 years prior to the transfer and sale of the property. With respect to this claim, there is no actionable wrong or tort pleaded and the claim should be struck as disclosing no reasonable cause of action.

Constructive Trust

[23] The plaintiff claims entitlement to a constructive trust on monies invested in the family home. He submits that he contributed money to the family from the ages of 8 1/2 to 19 1/2, in the approximate amount of $4,860, which was deposited in a family bank account by his parents. He submits that prior to leaving the home at the age of 19, he did not ask that any of this money be reimbursed to him, as he knew that the family would not be able to afford it, and also that his mother's response to such a request would be hostile. None of this background is pleaded, however. All that is pleaded is that he "claims a constructive trust (money invested) in the family home".

[24] The remedy for a constructive trust is generally available in respect of a claim for unjust enrichment. Unjust enrichment is an equitable doctrine available as a remedy for injustice that might result from one person making a substantial contribution to the property of another person without receiving compensation. In order to establish this cause of action, three elements are required, namely: (1) the defendant was unjustly enriched; (2) the plaintiff suffered a corresponding deprivation; and (3) there is no juristic reason for the enrichment: Dryden v. Dryden, 2011 CarswellOnt 13740 (Sup. Ct). These constituent elements are not pleaded. Further, in the event that the plaintiff is seeking a proprietary interest in the property, said property was sold in 2010, while the mother was still alive, to third party purchasers for value who are not parties to this action and, therefore, no interest could attach to the home, if one were established.

[25] With respect to a trust in respect of the monies obtained on the sale of the property, the claim for constructive trust would be based on monies contributed by the plaintiff prior to his having left the home in September of 1970 at the age of 19. This is not pleaded. Moreover, pursuant to the Limitations Act, 2002, s. 15(2) this action is statute-barred. As regards a claim in equity, the doctrine of laches would apply: see Louie v. Lastman, 2002 CanLll 45061 (Ont. C. A.)

[26] For the foregoing reasons, the claim for constructive trust should be struck.

The Claims with Respect to the Four Siblings

[27] The plaintiff makes allegations and seeks relief on behalf of his four siblings who are not parties to the action. The plaintiff cannot seek relief on behalf of wrongs allegedly done to non-parties to an action: Pokonzie v. Ontario, 2006 Carswell 9306 (Sup. Ct); Eli Lilly and Co. v. Novopharm Ltd., 1996 CarswellNat 1560 (F.C A.). The plaintiff has no standing to seek damages on behalf of non-parties. These claims should, accordingly, be struck as the plaintiff has no standing to bring them, and they disclose no reasonable cause of action.

The Claims as against the Co-defendants, Lauria and Beverley

[28] The Amended Statement of Claim pleads no allegations as against Lauria which would amount to an independent actionable wrong committed by her. The only allegations relate to the possibility that she may own and/or be the beneficiary of assets of John. Where there is no independent actionable wrong pleaded, the claim must be struck: Williams v. Seymour, 2008 CarswellOnt 7076 (Sup. Ct). With respect to the claims as against Beverley, the only allegations relate to "deceit of a false address" which, it is alleged, was provided as the address for service on the POAP executed by Mary, thereby preventing Iain from being able to serve the claim on Beverley. There is no such cause of action known to law and this claim should be struck as disclosing no reasonable cause of action.

Rule 25.11

[29] The moving party also seeks an order striking out or expunging all or part of the Amended Statement of Claim, without leave to amend, pursuant to Rule 25.11.

[30] Rule 25.11 provides that the court may strike out or expunge all or part of a pleading, or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay a fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[31] Again, as with Rule 21.01(1)(b), material facts pleaded in the claim are to be taken as proven, unless it is plain and obvious that they are based on assumptive or speculative conclusions that are incapable of belief.

[32] The words "frivolous" and “vexatious" define a claim that is obviously unsustainable. A pleading that demonstrates a complete absence of material fact will be declared to be frivolous and vexatious. Similarly, portions of the pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations, should be struck out as scandalous: George v. Harris, 2000 CarswellOnt 1714 (S. C. J.)

[33] Where the pleading fails to meet the minimum level of material fact disclosure, the appropriate remedy is to strike the pleading: Morrison v. Partington, [2005] O.J. No. 3176, [2005] O.T.C. 659 (Ont. S C J.).

[34] While I need not determine this issue, as I have found that the Amended Statement of Claim should be struck under Rule 25.01(1)(b), I will nevertheless provide my determination on this issue.

[35] The Amended Statement of Claim is prolix, pleads evidence and includes claims which are frivolous, scandalous and vexatious; and which contain irrelevant, inflammatory allegations, inserted to colour the pleadings and to cause embarrassment. Further, the Amended Statement of Claim includes claims for alleged wrongdoing brought on behalf of non-parties.

[36] In this regard, the defendants assert that:

(1) Paragraphs 12, 13, 17, 19, 34-40, 42 and 44, pertain to complaints by and against strangers to the litigation and should be struck.

(2) Paragraphs 7-9, 11, 12, 15, 16, 18-21, 23, 29-32, 34-40, 42-46 are either irrelevant, egregious, or so blatantly inflammatory that it appears they have been included only for atmosphere and to prejudice the fair hearing of the matter, and should be struck

[37] I am cognizant of the fact that the plaintiff is representing himself in these proceedings. However, even reading the Statement of Claim generously to allow for drafting deficiencies, as the court must do, I find that the claim is radically defective. The pleadings are prolix, contain irrelevancies, do not comply with the Rules, do not set forth reasonable or any causes of action and, accordingly, should be struck in their entirety pursuant to both Rules 21.01(1)(b) and 25.11.

[38] I am of the view that it is plain and obvious that the claim discloses no reasonable causes of action as against any of the defendants, for the reasons stated above. I find that the Amended Statement of Claim is radically defective, and that further amendments to the Amended Statement of Claim, which has already been amended once, will not serve to salvage the claim. I order that the Amended Statement of Claim be struck without leave to amend.

Costs

[39] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J Brown J.

Date: June 27, 2013