Court of Appeal for Ontario

Citation: Kakoutis v. Bank of Nova Scotia, 2015 ONCA 872

Date: 2015-12-10

Docket: C60389

Before: Sharpe, Cronk and Miller JJ.A.

Between:

Louis Kakoutis and Effie Kakoutis Plaintiffs (Appellants)

and

The Bank of Nova Scotia Defendant (Respondent)

Counsel:

Louis Kakoutis and Effie Kakoutis, appearing in person

Adrian Visheau, for the respondent

Heard and released orally: December 4, 2015

On appeal from the judgment of Justice Andra M. Pollak of the Superior Court of Justice, dated April 7, 2015.

Endorsement

[1] In our view, this appeal must be dismissed.

[2] We do not agree with the appellants’ submission that their procedural rights were denied by the manner in which the motions judge treated the prior endorsement of Firestone J. When the matter came before her, the motions judge clearly ruled that if the twin summary judgment motions were to proceed before her, they would have to be dealt with from the beginning. The appellants therefore had a choice. If they wished to proceed before the motions judge, they had to waive the effect of Firestone J.’s order and start anew so that the motions judge could decide on her own whether a mini-trial was required.

[3] The appellants made their choice. Faced with these circumstances, all parties agreed that the motions judge should proceed to hear the motions regardless of Firestone J.’s prior order. They also confirmed that Firestone J. did not hear the motions on the merits and that he had not remained seized of the matters in issue. His order, therefore, was not binding on the motions judge in respect of any substantive or procedural issue.

[4] The motions judge accepted the parties’ positions, heard the summary judgment motions on the merits, considered the governing principles regarding summary judgment motions and, having evaluated the evidence, determined that she was able to render a decision as to whether there was a genuine issue for trial. She concluded that there was not.

[5] Contrary to the appellants’ contention, the hearing transcript confirms that the motions judge was acutely aware of the principles applicable to summary judgment motions as articulated by the Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, and that she did not err in applying them in this case. There was no denial of access to justice.

[6] The appellants acknowledge that, after the date of the disputed payment on their line of credit with the respondent bank (the “Bank”), they made no payment after March 12, 2012 on the outstanding balance owed to the Bank on the line of credit. By reason of the contractual banking arrangements between the parties, the appellants’ default under their line of credit also triggered default under their mortgage loan with the Bank. Neither facility, the line of credit or the mortgage loan account, were ever brought into good standing.

[7] In these circumstances, we agree with the motions judge that there was no legal basis to support the appellants’ claim that they have no obligation to repay the Bank for the outstanding amounts owed under their credit facilities. Similarly, there was no basis, in fact or in law, to support the appellants’ claim against the Bank.

[8] The appeal, therefore, is dismissed. Costs of the appeal are payable to the Bank, fixed in the amount of $10,000, inclusive of disbursements and applicable taxes.

“Robert Sharpe J.A.”

“E.A. Cronk J.A.”

“B.W. Miller J.A.”