Court File and Parties

Court File No.: 16-68865 Date: 20160906 Superior Court of Justice - Ontario

Re: BUHENDWA MUSOLE, Plaintiff/Moving party And BUSET & PARTNERS LLP, Defendants/Responding parties

Before: Mr. Justice Robert N. Beaudoin

Heard: By requisition

Endorsement

[1] By written requisition dated June 23, 2016, the Defendants requested an order under sub-rule 2.1.01(1) dismissing this action as the Statement of Claim appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the Court.

[2] By endorsement dated July 5, 2016, I concluded that resort to Rule 2.1 was appropriate and I directed the Registrar to give the Plaintiff notice in form 2.1 A that I was considering making an order dismissing the action. The Plaintiff delivered written submissions in accordance with rule 2.1 (3.2). I then directed the Registrar to provide a copy of those submissions to the Defendants in accordance with rule 2.1 (3.4). No submissions were received from the Defendants.

[3] I have reviewed the submissions of the Plaintiff. In considering the dismissal of the claim pursuant to Rule 2.1, the Court is limited to a review of the pleading on its face and this should not rely on any extraneous documents or submissions other than those that are specifically provided for in the role.

[4] The Plaintiff points out that the Defendant did not represent Renee Lynn Girard in Family Court proceedings in Thunder Bay. At that stage she was self-represented. He also notes that the trial judge did not reject his claims of “violation fraud and pregnancy entrapment”, but concluded, rather, that the Family Court did not have jurisdiction to hear those claims.

[5] The trial judge then refused his request to stay his decision and wait until the Plaintiff’s claims could be resolved in civil or criminal courts whose jurisdictions might encompass his claims.

[6] It is clear from his additional submissions that the Plaintiff’s claim against the Defendants arises from their representation of Ms. Girard in proceedings commenced here in the Superior Court in Ottawa. He submits that the Defendants successfully misled Justice Hackland of this Court into believing that he was trying to re-litigate the child support issues. He accuses the Defendants of misleading the Court, of lies and deception, and maintains that this conduct continued in a letter the Defendants wrote to Justice Linhares de Sousa.

[7] He concludes at para. 20 of his submissions:

For the past six or seven years navigating the Ontario Justice system, all I have been trying to achieve is Truth and Justice. These, I can only achieve through proper court trials where evidence at hand can be fairly treated. Anyone, including Buset and partners LLP, who unlawfully attempts to delay or obstruct my legal path toward that goal to seek justice and truth must be held accountable. Hence, the legal action against the Defendants (Buset and Partners LLP).

[8] From these further submissions, I continue in my conclusion that the Plaintiff is suing the Defendants for having represented Renee Lynn Girard in court proceedings here in Ontario. The Plaintiff continues to believe that he has a valid civil claim against Ms. Girard for violation, fraud and pregnancy entrapment. I am unaware of any legal precedent for such civil claims.

[9] In P.P. v. D.D., 2016 ONSC 258, Justice Paul Perell of this Court dealt with similar claims which are at the heart of this litigation. He dismissed a claim at the pleadings stage pursuant to Rule 21. He describes the Plaintiff’s claim at para. 2 of his decision:

P.P. sues D.D. for having deceived him into having recreational sexual intercourse from which a child was born. Subject to paternity being proven, P.P. accepts his fatherhood; however, he sues D.D. just for the non-pathological emotional harm of an unplanned parenthood. He has served a jury notice. He claims $2 million in general damages, $2 million for unspecified special damages, and $25,000 in punitive damages. Although his pleading alludes to a civil sexual assault cause of action, which I shall refer to as “sexual battery,” and although he variously refers to his cause of action as fraudulent misrepresentation, deceit or fraud, P.P.’s precisely pleaded cause of action is fraudulent misrepresentation.

[10] In that case, the plaintiff relied on R. v. Hutchinson, 2014 SCC 19, 2014 1 S.C.R. 346 as does Mr. Musole. Following a very thorough review of the case law, Justice Perell concluded that it was plain and obvious that neither fraudulent misrepresentation nor sexual battery were the legal vehicles for a claim for the emotional harm arising from unplanned parenthood.

[11] Ours is an adversarial system and the conduct of the parties during litigation is governed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In addition, counsel are bound by their respective Rules of Professional Conduct and their duties as officers of the Court. If there has been any breach of these, complaints about opposing counsel should be directed to the Law Society of Upper Canada. If Justices Hackland and de Sousa erred in accepting the evidence and submissions presented by the defendants in proceedings before them, that is a matter for appeal.

[12] I repeat my reference to Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, [2015] O.J. No. 307, at para. 14:

… re-litigating issues and adding parties opposite who were involved in the first case to try to do so are recognized signs of vexatiousness that invite scrutiny under Rule 2.1

[13] I accordingly dismiss this action as being frivolous, vexatious and an abuse of the process of the Court. I further direct the Registrar to provide a copy of this Endorsement by mail to the Plaintiffs and the Defendant.

Mr. Justice Robert N. Beaudoin Date: September 6, 2016