Superior Court of Justice
COURT FILE NO.: 16-71140
DATE: 2019/07/30
ONTARIO
BETWEEN:
Buhendwa Musole
Plaintiff/Moving party
– and –
Renee Lyne Girard
Defendant
Counsel:
Self-represented, for the Plaintiff/Moving party
No one appearing
HEARD: July 26, 2019 (at Ottawa)
ENDORSEMENT
MADAM Justice H. J. Williams
[1] The plaintiff has brought a motion for default judgment.
[2] The plaintiff’s statement of claim was served on the defendant on June 14, 2018. The plaintiff filed a requisition to note the defendant in default on August 14, 2018.
[3] The draft default judgment the plaintiff is asking the court to sign is in the amount of $1,350,000.00.
[4] On a motion for default judgment, a judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented. (Rule 19.05(3) of the Rules of Civil Procedure.)
[5] For the reasons below, the plaintiff’s action is dismissed:
(1) The facts in this case are similar to those in P.P. v. D.D., 2017 ONCA 180, in which the Court of Appeal concluded that damages of the nature sought by the plaintiff should not be recoverable in tort.
(2) This is the plaintiff’s second action against the defendant in respect of the same subject matter.
In his oral submissions, the plaintiff disclosed that he had started a previous action which had gone to mediation but was ultimately dismissed.
The plaintiff has also sued the lawyers who represented the defendant in previous litigation, a hallmark of vexatious litigation (Lang Michener Lash Johnston v. Fabian, (1987) 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353 (H.C.J.))
The plaintiff’s action against the defendant’s lawyers was dismissed by Beaudoin J. in 2016 on a motion under Rule 2.1.01(1), which permits the court to stay or dismiss proceedings at the originating process stage if they are frivolous, vexatious or abusive.
In one of his decisions on the Rule 2.1.01(1) motion, Beaudoin J. referred to a civil action the plaintiff had started against the defendant which had been stayed by Hackland J. on the basis that the plaintiff was trying to re-litigate issues that had been dealt with in a previous proceeding. Beaudoin J. noted the plaintiff’s appeal to the Divisional Court had been dismissed.
It may be that the plaintiff’s characterization of the damages he was seeking in the action before Hackland J. was different from that of the damages he was seeking in the action before me but the factual foundation for the two claims is the same.
The plaintiff is attempting to re-litigate issues that have already been decided and on more than one occasion.
I consider his action to be frivolous, vexatious and an abuse of process.
[6] The plaintiff’s motion and his action are dismissed.
Madam Justice H. J. Williams
Released: July 30, 2019
DATE: 2019/07/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Buhendwa Musole
Plaintiff/Moving party
– and –
Renee Lyne Girard
Defendant
endorsement
Madam Justice H. J. Williams
Released: July 30, 2019