Court of Appeal for Ontario
Date: 2019-02-05
Dockets: C65549, C65550, and C65551
Judges: Hourigan, Miller, and Paciocco JJ.A.
Docket: C65549
Between
Dennis Nikou Plaintiff (Appellant)
and
Lazaros Karageorgos, Richard C. Belsito, Stephan Tassopoulos, Efthalia Tassopoulos, Vasilios Tassopoulos, Andriana Tassopoulos, Jack Zwicker, and Adam Pantel
Defendants (Respondents)
Docket: C65550
Between
Dennis Nikou Plaintiff (Appellant)
and
Philip David, Lazaros Karageorgos, and Richard C. Belsito
Defendants (Respondents)
Docket: C65551
Between
Dennis Nikou, Estate Trustee of the Estate of Chris (a.k.a. Christos) Nikou and Dennis Nikou
Plaintiffs (Appellant)
and
Stephan Tassopoulos, Efthalia Tassopoulos, Vasilios Tassopoulos, Andriana Tassopoulos, Richard C. Belsito, Jack Zwicker, Adam Pantel, and Lazaros Karageorgos
Defendants (Respondents)
Counsel
For the appellant: Patrice Côté
For the respondents Lazaros Karageorgos, Richard C. Belsito, Jack Zwicker and Adam Pantel: Gavin Tighe and Jonathan Nehmetallah
For the respondents Stephan Tassopoulos, Efthalia Tassopoulos, Vasilios Tassopoulos and Andriana Tassopoulos: Joseph P. Maggisano
For the respondent Philip David: No one appearing
Heard: February 4, 2019
On appeal from: The orders of Justice Andra Pollak of the Superior Court of Justice, dated May 29, 2018.
Reasons for Decision
[1] The appellant is aggrieved that he and his siblings were cut out of his grandfather's will. He believes that his grandfather and his grandmother were subject to undue influence and fraudulent conduct by other family members.
[2] After the grandfather died in March 2010, this family dispute led to two lawsuits – a 2012 action and a 2015 action. Those actions were ultimately dismissed and discontinued, respectively.
[3] In 2017, the appellant commenced three new actions against family members and a number of lawyers who were involved in transactions relating to his grandparents' estates, or who acted in the 2012 and 2015 actions. The three 2017 actions are overlapping and include claims framed in harassment and defamation. On May 29, 2018, after due notice, a motion judge dismissed those actions pursuant to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 2.1.01.
[4] The appellant appeals each of the dismissals. Between his written and oral argument we understand him to be presenting three common grounds of appeal to each of the three r. 2.1.01 dismissal decisions. We would describe those grounds of appeal as follows. In each of the cases:
(1) The motion judge did not make a finding that the proceeding was frivolous or vexatious or an abuse of process as required by r. 2.1.01(1);
(2) The motion judge erred in dismissing the action because the harassment and defamation claims find support in the pleadings;
(3) The motion judge did not give reasons why the statement of claim could not be remedied with an amendment.
[5] After oral argument we dismissed the appeals, with reasons to follow. These are our reasons.
[6] We agree that in her brief decisions the motion judge did not describe the actions as frivolous or vexatious or an abuse of process. We nonetheless dismissed the first ground of appeal because it is evident in all of the circumstances that she found the claims made to be frivolous and vexatious on their face.
[7] She clearly understood her task; in related endorsements in each of the actions the motion judge notified the appellant that the court was considering making an order dismissing the actions as frivolous, vexatious or otherwise an abuse of process.
[8] After considering the pleadings and what she found to be the appellant's non-responsive written submissions in each case, she concluded that although the claims appear to identify causes of action, they do not contain pleadings supporting those causes of action. In other words, the claims were frivolous because they lacked a legal basis or legal merit, and they were vexatious in the sense that they were instituted without reasonable ground: Gao v. Ontario WSIB, 2014 ONSC 6497, 61 C.P.C. (7th) 153, at para. 9. Simply put, she found the proceedings to be frivolous and vexatious, on their face.
[9] We dismissed the second ground of appeal because, read generously, the claims do not sufficiently express the gravamen of cognizable causes of action. To the extent that a basis for allegations of harassment and defamation can be gleaned from an optimistic reading of the pleadings, those allegations relate to the pleadings and evidence given in the 2012 and 2015 actions. Patently, they represent an attempt to reopen the 2012 and 2015 actions. The appellant veritably admitted as much in seeking to respond to the r. 2.1.01 motions when he argued that in considering whether to dismiss the 2017 actions, the court should consider whether it is necessary for him to incur the additional legal costs of seeking to reopen the 2012 and 2015 actions. Attempting to relitigate, in a new action, matters that have already been determined by final court orders is an abuse of process and can form no basis for a cognizable cause of action: Joshi v. Canadian Imperial Bank of Commerce, 2018 ONCA 537, at para. 3, leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 273.
[10] We rejected the third ground of appeal, resting in the motion judge's failure to give reasons why the statements of claim could not be remedied through amendment, because sufficient explanation was provided. When she explained that even with the most generous readings the statements of claim do not comply with the rules and that this "significant defect cannot be remedied with an amendment" the motion judge was not saying that the claims could not be remedied because the pleadings are deficient. Read in context, she was saying that the pleadings do not have legal merit and cannot sustain a cognizable cause of action. That being so, permitting amendment would be pointless.
[11] The appeals are dismissed. The appellant shall pay costs to the four respondent lawyers, Lazaros Karageorgos, Richard C. Belsito, Jack Zwicker and Adam Pantel, collectively in the amount of $5,000, inclusive of HST and disbursements. Costs are payable to the respondents Stephan Tassopoulos, Efthalia Tassopoulos, Vasilios Tassopoulos and Andriana Tassopoulos collectively, in the same amount.
"C.W. Hourigan J.A."
"B.W. Miller J.A."
"David M. Paciocco J.A."