COURT OF APPEAL FOR ONTARIO

CITATION: Teplitsky Colson LLP v. Malamas, 2013 ONCA 404

DATE: 20130617

DOCKET: C55730

Laskin, Rosenberg and Lauwers JJ.A.

BETWEEN

Teplitsky Colson LLP, Gary Caplan, 2004782 Ontario Limited, 717 Pape Inc., Peter L. Biro, CGD Management Limited, Crerar Property Corp., Danforth Properties Limited, George Foulidis, Goodman and Carr, Jonathan Lisus, McCarthy Tetrault LLP, The Mutual Trust Company (now known as the Clarica Trust Company), Raymond Raphael, Raymond Raphael Professional Corporation, Stewart J.L. Robertson, Nicholas Stanoulis, Donna Stanoulis, Christina Stanoulis, Gary Stanoulis, Thomas Stanoulis, Thomas M.T. Sutton, Chris Tatsis, Panagiota Tatsis, Tonu Toome, Toome Laar & Bell, The City of Toronto

Applicants (Respondents)

and

William Malamas, also known as Vasilios Malamas, Apollco Developments Ltd., Apollo Real Estate Limited, Apollco Properties Limited, Apollco Construction Ltd., Apollo Ltd., Pallas Properties Inc.

Respondents (Appellants)

William Malamas, acting in person for the appellants

William S. O'Hara, for the respondents, Teplitsky Colson LLP and Gary Caplan

Ray Thapar, for the respondents, Crerar Property Corp., Stewart J.L. Robertson, Clarica Trust Company, Danforth Properties Limited, 2004782 Ontario Limited and CGD Management Limited

Daniel Iny, for the respondents, McCarthy Tetrault LLP, Raymond Raphael, Raymond Raphael Professional Corporation, Peter L. Biro, Goodman and Carr, Tonu Toome, Toome Laar & Bell and Jonathan Lisus

Michelle Brady, for the respondent, The City of Toronto

Nicholas Stanoulis, for the respondent, 717 Pape Inc.

Lawrence F. Wallach, for the respondents, Nicholas Stanoulis, Donna Stanoulis, Christina Stanoulis, Gary Stanoulis, Thomas Stanoulis

Michael G. Tweedie, for the respondents, Chris Tatsis and Panagiota Tatsis

Heard: June 11, 2013

On appeal from the order of Justice Frank J.C. Newbould of the Superior Court of Justice, dated June 18, 2012.

By the Court:

[1] Mr. Malamas appeals the order of Newbould J. declaring him and the companies he controls to be vexatious litigants.

[2] In his oral argument, Mr. Malamas did not challenge any of Newbould J.’s substantive findings. Instead, he contended that Newbould J.’s order should be set aside because of procedural irregularities in the conduct of the application to have him and his corporations declared vexatious litigants. Specifically Mr. Malamas makes four complaints about the proceedings, which we list and briefly address.

(1) Mr. O’Hara did not have authority to act as agent for all of the other applicants.

[3] Mr. O’Hara’s clients are the Teplitsky Colson law firm and Gary Caplan. To save time and expense, the other applicants agreed that he could represent them as their agent and make submissions on their behalf. They also agreed that a single omnibus application would be brought on behalf of all the applicants.

[4] The application judge recognized that this was a sensible course of action. In his procedural order no. 7, he confirmed that the application was brought with his prior approval. In his procedural order no. 9, he denied Mr. Malamas permission to serve Mr. O’Hara with a request under rule 15.02 of the Rules of Civil Procedure and in his procedural order no. 8, he denied Mr. Malamas’ request to have Mr. O’Hara removed from the record.

[5] The application judge did not err in making these orders. There is no merit to Mr. Malamas’ complaint that Mr. O’Hara lacked authority to act for all the applicants.

(2) Newbould J. did not have authority to conduct the vexatious litigant application

[6] This complaint, too, has no merit. By letter dated November 10, 2009, Horkins J., acting as the Regional Senior Judge’s designate, appointed Newbould J. to conduct these proceedings. He, therefore, had authority to conduct and hear the application.

(3) There was no admissible affidavit evidence in support of the application

[7] We do not agree with this complaint either. Ms. Anna Husa, a lawyer in Mr. O’Hara’s office, who has been assisting him on the case, swore the affidavit in support of the application. There was nothing improper or inappropriate about her doing so. None of her affidavit evidence is the least bit contentious. She simply sets out facts from court documents and other public records.

(4) There are inconsistencies in the reasons of Newbould J.

[8] Mr. Malamas pointed to various paragraphs in the reasons of the application judge, which he claims demonstrated inconsistencies. We see no inconsistency in the thorough and well-reasoned decision of the application judge. Accordingly, this complaint also fails.

[9] Overall we are satisfied that the evidentiary record supports the vexatious litigant order, and that the application judge did not err in making that order.

[10] Accordingly, the appeal is dismissed.

(5) Costs of the appeal

[11] The respondents on appeal are entitled to their costs. Mr. O’Hara asked for a substantial indemnity amount of $63,861 (inclusive of disbursements and applicable taxes) – an amount that reflects an input of all counsel for the applicants.

[12] In our view, the respondents on appeal are entitled to substantial indemnity costs. Mr. Malamas has persisted in his groundless allegations of fraud, breach of fiduciary duty and other nefarious conduct by these parties. The nature of his allegations justifies substantial indemnity costs. The amount Mr. O’Hara asked for is fair and reasonable. Accordingly, we order costs in the amount of $63,861 payable by the appellants to the respondents on appeal.

Released: Jun 17, 2013 “John Laskin J.A.”

“JL” “M. Rosenberg J.A.”

“P. Lauwers J.A.”