Rousay v. Rousay et al., 2015 ONSC 1336

COURT FILE NO.: 05-157/13

DATE: 20150227

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: IAIN ROBERT ROUSAY, Applicant

AND:

JOHN ROUSAY and BEVERLY FRANCES ROCK, Respondents

BEFORE: Mr. Justice T. McEwen

COUNSEL: Iain Robert Rousay, in person

William Levitt, for the Respondents

READ: February 27, 2015

ENDORSEMENT

[1] In December, 2014 the respondents wrote to the Court requesting that, pursuant to rule 2.1.01(6) that this application be stayed or dismissed. Written submissions were provided by the applicants at that time by way of letter. By endorsement dated December 23, 2004 I directed the registrar to deliver a Notice in Form 2.1A to the applicant and I stayed the action pursuant to s. 106 of the Courts of Justice Act pending the outcome of the review under rule 2.1.

[2] On February 3, 2015 I received the written submissions of the applicant by way of letter dated January 30, 2015.

[3] I have reviewed the parties’ submissions and the documents filed by them. For the reasons below I dismiss the application on the basis that it is frivolous, vexatious and otherwise an abuse of process of the Court pursuant to rule 2.1.01(1).

[4] The applicant previously issued a statement of claim against the respondents as well as another person, Lauria Mae Lainson on November 12, 2012. The respondents and Ms. Lainson in that action brought a motion to strike the claim pursuant to rule 21.02. C. Brown, J., after hearing the motion to dismiss, struck the claim in its entirety without leave to amend. In part, she described the claim as, “prolix, pleads evidence, and includes claims that are frivolous, scandalous and vexatious in which contains irrelevant, inflammatory allegations, inserted to colour the pleadings and to cause embarrassment”.

[5] The appeal from that order was not perfected and struck by the registrar for delay. Ultimately it was reinstated but the appeal was dismissed by the Court of Appeal, with costs, on October 20, 2014.

[6] Prior the appeal being heard the applicant commenced this application on March 11, 2014. The respondents move pursuant to rule 2.1 which allows the Court, of its own motion, to review and, where appropriate, dismiss actions which appear on their face to be frivolous, vexatious or an abuse of process. As discussed in Gao v. Ontario WSIB, 2014 ONSC 6100, rule 2.1 is not to be used “for close calls”. Submissions are of little use in such a process since the pleading itself must be reviewed, but I have, however, read and considered the written submissions provided by the applicant and the respondents.

[7] Having done so, I accept the respondents’ submission that the application is an attempt to re-litigate matters previously decided by the C. Brown, J. Further, some of the causes of action asserted by the applicant are either not known in law or are unintelligible. Most of the materials filed by the applicant at this time were previously filed in support of an unsuccessful action brought by him against the respondents.

[8] In the initial statement of claim the applicant sought damages of $100,000.00 which he again seeks in this application. Furthermore, when one compares this application to the statement of claim (which is difficult to do given their length and rambling nature) the claims against the respondents in this application are the same in nature as the claims that were made against them in the statement of claim; namely, that the respondent John Rousay has breached fiduciary duties to the applicant, disposed of the family home and has spoken maliciously of the applicant. The claim against the respondent Beverly Frances Rock is even more difficult to comprehend and includes a claim for “deceit of a false address” and describes her as a “synthetic person (a fabricated identity)” and that Beverly Frances Rock “was created for some ill-conceived purpose”.

[9] I should further note that C. Brown, J. set out in her June 27, 2013 endorsement that the applicant conceded that, since he was not a named beneficiary in the will he was not entitled to a share of the estate assets. Rather he was proceeding with that lawsuit based on the way he was treated by the respondent John Rousay and his complaints about John Rousay’s “bad faith”.

[10] In addition to the above, the lengthy notice of application is over 120 pages long and largely consists of an unintelligible collection of documents and allegations that are not in any, real understandable form.

[11] Based on all of the above, the notice of application, in my view, is obviously frivolous, vexatious and an abuse of process of the court. The respondents should not be forced to spend money responding to the application. No further court resources should have to be utilized by conducting a viva voce hearing.

[12] Accordingly, it is in the interest of justice for the Court to exercise its discretion under rules 2.1.01(3) and dismiss the application. The respondents are entitled to costs although the matter has been dismissed at this early stage. If the respondents’ desire to pursue a claim for costs, it is referred to an Assessment Officer in Toronto.

[13] The respondents may send a draft order directly to the Estates Office for my signature and do not have to obtain the applicant’s approval as to form and content.

[14] The registrar shall comply with rule 2.1.05(5) by sending a copy of this endorsement to the applicant and the respondents by regular mail to their addresses for service on the application.

Mr. Justice T. McEwen

Date: February 27, 2015