r v. Wah, 2017 ONSC 6462

CITATION : Saikely v. Saikely, 2017 ONSC 6462 COURT FILE NO.: 17-73930 DATE: 20171101 SUPERIOR COURT OF JUSTICE - ONTARIO RE: SOUHIEL SAIKELY, Plaintiff -and- SAMIR SAIKELY, SAMIRA SAIKELY, SOUHIELA SAIKELY, AIDA OAKLEY SAIKELY, ROUDA SAIKELY, ROBERT OAKLEY, DONALD RASMUSSEN, ROYDON J.KEALEY and GEORGE KEALEY, Defendants BEFORE: Mr. Justice Robert N.

Beaudoin HEARD: By Requisition ENDORSEMENT [ 1 ] This requisition was referred to me by the Registrar’s Office pursuant to rule 2.1 .01(6) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, following receipt of a written request of the Defendants, Aida Oakley Saikely, Souhiela Saikely and Samir Saikely dated October 23, 2017. I note that the Plaintiff was copied on the Defendants’ correspondence. [ 2 ] I have read the Statement of Claim. After identifying the parties, the Plaintiff goes on to allege that he made three separate loans to the Defendants, Aida Oakley Saikely and Robert Oakley.

Those loans culminated in a legal dispute which is referenced as Saikely v. 519579 Ontario Ltd. 1994 CarswellOnt 4011, [1994] O.J. No. 575 . [ 3 ] A copy of that decision as well as the Court of Appeal’s dismissal of the appeal, are attached to the Defendant’s Requisition. [ 4 ] The Plaintiff goes on to allege that the Defendants, along with their counsel, conspired to defraud him during the trial of that action.

He further alleges that he only discovered the true damage he suffered by the alleged fraud in the spring of 2016. [ 5 ] These Defendants have delivered a Statement of Defence wherein they allege that this action is statute barred, a collateral attack and an abuse of process. [ 6 ] While the allegations in the Statement of Defence appear to have merit, I conclude that recourse to Rule 2.1 is not appropriate in these circumstances. The Court of Appeal recently addressed the availability of Rule 2.1 in Khan v. Krylov & Co ., 2017 ONCA 625 .

In that case, the plaintiff alleged that the defendant lawyers had misappropriated the funds he was to receive from the settlement of his motor vehicle accident action. The Court said this at paras. 11-14: 11 As distasteful as this allegation might be, it is not entirely implausible. A cautious approach must be taken, as Myers J. noted in Husain v. Craig , 2015 ONSC 1754 at para. 10 , when he asked: "what if the plaintiff's allegations are true?" 12 Rule 2.1 is an extremely blunt instrument.

It is reserved for the clearest of cases, where the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1 is not meant to be an easily accessible alternative to a pleadings motion, a motion for

summary judgment, or a trial. 13 The hallmarks of a vexatious pleading amenable to being struck under Rule 2.1 are well known to judges and helpfully listed in paras. 14-15 of Gao (No. 2). However, the statement of claim in this case bears none of them. It is short and to the point. There is nothing on the face of the Statement of Claim that shows the appellant to be a vexatious litigant or that he is engaged in what Myers J. described in Husain as "querulous litigant behaviour" (at para. 15). Nor is there any suggestion in the material that the appellant will abuse the process of the court if he is confronted by other motions such as a motion for

summary judgment at the instance of the respondents: Mester v. Wah , 2016 ONSC 4887 , at para. 5 . We also note that there is no evidence under oath of any kind, be it in the form of affidavits or examinations, generated in the action. The rule 2.1.01 request is clearly premature. 14 We are unable to conclude that the appellant's Statement of Claim asserts a claim that is frivolous, vexatious or an abuse of the court's process, measured by the criteria in the cases.

Once a pleading asserts a cause of action and does not bear the hallmarks of frivolous, vexatious or abusive litigation, resort to Rule 2.1 is not appropriate as a means for bringing the action to an early end. The motion judge erred in truncating the normal process. [ 7 ] I cannot make a determination that this Claim is frivolous and vexatious and abuse of process by a simple review of the

pleading on its face and recourse to the attenuated process of Rule 2.1 is not appropriate in these circumstances. Mr. Justice Robert N. Beaudoin Date: November 1, 2017 CITATION : Saikely v. Saikely, 2017 ONSC 6462 COURT FILE NO.: 17-73930 DATE: 20171101 ONTARIO SUPERIOR COURT OF JUSTICE RE: SOUHIEL SAIKELY, Plaintiff AND SAMIR SAIKELY, SAMIRA SAIKELY, SOUHIELA SAIKELY, AIDA OAKLEY SAKELY, ROUDA SAIKELY, ROBERT OAKLEY, DONALD RASMUSSEN, ROYDON J.KEALEY and GEORGE KEALEY, Defendants BEFORE: Mr. Justice Robert N. Beaudoin HEARD: By Requisition ENDORSEMENT Beaudoin J. Released: November 1, 2017