SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-426057
DATE: 20120926

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TEPLITSKY COLSON LLP, GARY CAPLAN, 2004782 ONTARIO LIMITED, 717 PAPE INC., PETER L. BIRO, CDG MANAGEMENT LIMITED, CRERAR PROPERTY CORP., DANFORTH PROPERTIES LIMITED, GEORGE FOULDIS, 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/Moving Parties

• 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

COUNSEL: William S. O’Hara, Ray Thapar, Lawrence F. Wallach, Andrew M. Stikuts, Sean Dewart, Daniel Iny and Michael G. Tweedie for the Applicants

William Malamas appearing in person and for the respondent corporations

E N D O R S E M E N T

[ 1 ] This endorsement deals with the cost claims made by the applicants following my decision to declare Mr. Malamas a vexatious litigant and to order relief against him, including costs.

[ 2 ] The applicants seek costs on a full indemnity basis or failing that on a substantial indemnity basis. The tests for these higher awards for costs are well known. In my view, the applicants are entitled to costs on a substantial indemnity basis. The way in which Mr. Malamas conducted the defence of the vexatious proceeding application and the motions for security for costs was vexatious in itself. It resulted in a great deal of work by the parties and their counsel that should not have been necessary. I referred to several instances of this in my reasons for judgment released on June 18, 2012. As well, Mr. Malamas throughout made allegations of fraudulent and other disreputable conduct against lawyers involved, professional corporations and members of the public that were not supported by any cogent evidence. I referred to several instances of this in my reasons for judgment. These allegations were against professional persons, including lawyers and police officers, and against the City of Toronto. Throughout the course of these proceedings, Mr. Malamas several times ignored and broke procedural rulings, which I need not particularize here. I order that the costs be assessed on a substantial indemnity basis.

[ 3 ] Regarding the work done, the applicant parties agreed that one application for the vexatious applications for all of them would be made by Gardiner Roberts. This reduced considerably the work done, and is to be commended. The bulk of the drafting work was done by Gardner Roberts, with the other parties’ counsel reviewing it and presumably being sure that it dealt with their clients appropriately. A number of counsel attended on the cross-examinations. At the hearing, counsel for the applicants left the bulk of the argument to Mr. O’Hara, which again streamlined the hearing.

[ 4 ] Regarding the motions for security for costs, each moving party prepared their own motion material. I held in my reasons for judgment that I saw no purpose for deciding them at this time and that they can be dealt with in any particular proceeding if and when an application is made by Mr. Malamas for leave to continue a proceeding. Thus I make no cost orders with respect to these motions at this time. Gardner Roberts has not included in its cost request anything for its motion for security for costs. Some others have and I will make a deduction from those requests. That does not mean, however, that the costs for the motions for security for costs are dismissed. They are merely deferred.

[ 5 ] Mr. Malamas raises in his opposition to the bills of costs a number of technical arguments regarding the merits of the application that I have previously dealt with and dismissed. Included is his argument that Gardner Roberts was not properly authorized to commence the application on behalf of all applicants. These arguments are improper, and indicate an unwillingness to recognize previous orders.

[ 6 ] Gardner Roberts claims fees on a substantial indemnity basis of $248,762.50, disbursements of $16,494.25 which together with HST total $298,838.31. Mr. Malamas makes no objection to the disbursements. Regarding the hours of work claimed, he asserts that 319 hours by Miss Husa, 454 hours by Mr. O’Hara and 230 hours by an law clerk for an application that took 2 hours to argue and 15 minutes to respond is a clear abuse of process and outrageous. He states that costs should be denied and in the alternative, Mr. O’Hara should not be awarded costs for more than 50 hours.

[ 7 ] The amount of work required to be done was enormous, as set out in the bill of costs of Gardner Roberts. The correspondence was voluminous for the application, consisting of thirteen two inch brads. I know from the correspondence directed by Mr. Malamas to my assistant that a very large portion of the correspondence was from Mr. Malamas. Work had to be done for all of the nine participating actions with a review of litigation patters over the course of 20 years. There were a large number of case conferences. Mr. Malamas delivered 14 volumes of responding material and two volumes of amended responding material. There was review of numerous motion records totalling 3000 pages. No costs are claimed for motions in which costs were ordered to be paid by the court. There were aborted cross-examinations of Ms. Husa and one day of cross-examination of Mr. Malamas in which he refused to answer any questions. As the designated judge and since my first procedural order was made in December, 2009, I observed that a great deal of the steps taken were caused by Mr. Malamas taking technical positions that failed, his ignoring procedural orders and his penchant for appealing virtually every order made and bringing motions to remove various lawyers, all of which were unsuccessful. Mr. Malamas was the cause of much of the work required by all parties.

[ 8 ] The substantial indemnity rates of $315 for Mr. O’Hara, called in 1984, and of $190 for Ms. Husa called in 2002, are reasonable, as is the rate of $60 for the law clerk Ms. Robinson. If anything, these rates on a substantial indemnity basis are low, based on what billing rates for a downtown Toronto law firm such as Gardner Roberts are [^1] . I am in no position to be critical of the hours docketed by Gardner Roberts, or for the most part by the other lawyers who have filed bills of costs. What I must do is consider the overall reasonableness of the bill of costs, albeit from the perspective of a substantial indemnity entitlement. Having done so, I fix the costs of Gardner Roberts clients at $275,000, inclusive of disbursements and HST.

[ 9 ] Mr. Stanoulis on behalf of his clients filed a bill of costs in which fees are claimed on a partial indemnity basis of $16,135 and disbursements of $1,424.24, for a total including HST of $22,169.24. The fees are based on an hourly rate of $350, against an actual billing rate of $450. Based on actual rates charged, the fees would be $20,745. Mr. Stanoulis was called in 1988. The work done by Mr. Stanoulis involved reviewing the draft application and factum prepared by Gardner Roberts, reviewing Mr. Malamas’ material, preparing and attending on cross-examinations and on a motion before the Master, correspondence and attending at court on the hearing of the application. The hours of work claimed appear reasonable.

[ 10 ] Mr. Malamas makes several technical objections to the bill of costs of Mr. Stanoulis, none of which in my view prevent the assessment of costs pursuant to the cost order which I made. He notes that Mr. Stanoulis was not present in court for the two day argument in June. Mr. Stanoulis has claimed 10.5 hours for the preparation for the hearing, without explanation for claiming this when he did not attend. Why he did not attend was not explained. In the circumstances I do not think an award for preparation for the hearing should be made.

[ 11 ] Taking into account my conclusion that substantial indemnity costs could have been awarded, and what an overall reasonable amount would be, I fix the costs of Mr. Stanoulis’ clients at $17,000, inclusive of disbursements and HST.

[ 12 ] Mr. Iny of Sack Goldblatt Mitchell has filed a bill of costs which states that fees based on his actual rate of $270 are $24,831.90 and based on a partial indemnity rate of $200 are $19,035. He was called to the bar in 2003. Mr. Sean Dewart made some appearances in case conferences and did other work, but no time is claimed for Mr. Dewart. Disbursements of $972.88 are claimed, which together with HST totals $26,296.18 on an actual rate basis and $20,499.28 on a partial indemnity basis. The hours claimed for the various tasks are reasonable, although I note that the description of work includes work involved in the motion for security for costs. It will be necessary therefore to reduce the hours claimed for this work to remove any award at this time for security for costs.

[ 13 ] Mr. Malamas again makes technical arguments, none of which are grounds not to assess the costs. He also repeats arguments regarding the merits of the application and asserts that the “input contributed by Mr. Iny and Mr. Dewart” in the application caused me to make conflicting finds of fact or decisions with other judges. I do not accept his assertions. He asserts that Mr. Iny be awarded no costs. I do not accept that submission. He also asserts that he fails to see how Mr. Iny spent 15.7 hours as claimed for assisting in preparing draft application and motion materials. There is no basis to question the validity of those hours claimed, and they appear entirely reasonable, although as noted they must be reduced to remove any award for the motion for security for costs.

[ 14 ] Mr. Iny’s clients are entitled to costs on a substantial indemnity basis. Taking into account what a reasonable amount would be, including not assessing anything for work in connection with the motion for security for costs, I assess the costs of Mr. Iny’s clients at $20,000 inclusive of disbursements and HST.

[ 15 ] Mr. Thapar of Thorton Grout Finnigan has filed a bill of costs which states that fees based on his actual rate of $450 are $119,244.50 and based on a partial indemnity rate of $300 are $78,270. He does not state when he was called to the bar, but from my observation would guess it was less than 10 years ago. Disbursements of $1,265 are claimed.

[ 16 ] Mr. Malamas again makes technical arguments that do not prevent an assessment of Mr. Thapar’s clients’ costs. He asserts, with which I agree, that the hours claimed are “way out of line”. He asserts that either no costs be awarded or they be restricted to 10 hours. I do not agree with this last assertion.

[ 17 ] Included in the bill of costs are claims of 56.3 hours for draft and review of the application and motion materials and research, 24.5 hours for receipt and review of Mr. Malamas’ materials, 27.2 hours for preparation and attendance at the aborted and rescheduled Husa cross-examination, 19.8 hours for preparation and attendance at the cross-examination of Mr. Malamas, 47.8 hours for draft and review of applicant moving parties draft factum and research, 8.5 hours for review of Mr. Malamas’ factum, and 36.8 hours for preparation for the two day hearing in June. I fail to see how that much time could have reasonably be spent on looking at things from the perspective of what was relevant so far as Mr. Thapar’s clients were concerned. If the time claimed was spent, it amounted to grossly over lawyering the file. As well, the hourly rates claimed are in my view excessive. As with other bills of costs, a deduction must be made for work in connection with the motion for security for costs.

[ 18 ] Mr. Thapar’s clients are entitled to be awarded costs on a substantial indemnity basis. Taking into account what an overall reasonable fee would be, and not including anything for work on the motion for security for costs, I assess the costs of Mr. Thapar’s clients at $20,000 inclusive of disbursements and HST.

[ 19 ] The bill of costs filed on behalf of Chris and Panagiota Tatsis states that fees based on actual rates of $375 for Mr. Alexiou called in 1989 and $300 for Mr. Tweedie called in 1983 are $25,785 and based on partial indemnity rates of $430 and $275 are $20,405. No information is provided about disbursements or the amount of HST owing on the amounts claimed.

[ 20 ] Mr. Malamas asserts the same technical arguments that have no merit on an assessment. He asserts that the hours claimed are out of line as the lawyers were new to the file in January, 2012. I have reviewed the hours claimed and in my view they are reasonable for the work claimed. I note however that they include work on the motion for security for costs, which must be eliminated from the assessment. Taking into account what an overall reasonable fee on a substantial indemnity basis would be and the necessity of including HST, I assess the costs of Chris and Panagiota Tatsis at $22,000 inclusive of HST.

[ 21 ] Mr. Wallach has filed a bill of costs on behalf the Stanoulis defendants that states that fees based on an actual rate of $450 for Mr. Wallach called in 1984 are $31,365 and based on a partial indemnity rate of $350 are $24,395. No information is provided about disbursements or the amount of HST owing on the amounts claimed.

[ 22 ] Mr. Malamas makes the same technical arguments as with the others. He asserts that the time spent by Mr. Wallach is excessive and that he should not be awarded any costs or in the alternative no more than for 10 hours work. I disagree. I do think that the hourly rates charged are a little high. I have reviewed the hours claimed and in my view they are reasonable for the work claimed. I note however that they include work on the motion for security for costs, which must be eliminated from the assessment. Taking into counts what an overall reasonable fee would be on a substantial indemnity basis and the necessity of including HST, I assess the costs of the Stanoulis defendants at $22,000 inclusive of HST.

[ 23 ] Mr. Stikuts of the City of Toronto has filed a bill of costs stating that fees on a partial indemnity basis are $22,400 based on a rate of $350 for Mr. Stikus who was called in 1979. No information is provided about disbursements or the amount of HST owing on the amounts claimed. The bill states that the actual rate is not applicable, presumably because Mr. Stikuts is employed by the City of Toronto. This would not, however, prevent an award on a substantial indemnity basis being made.

[ 24 ] Mr. Malamas makes the same technical arguments as with the others. He asserts that the time spent by Mr. Stikuts is excessive and that he should not be awarded any costs or in the alternative no more than for 5 hours work. I disagree. I have reviewed the hours claimed and in my view they are reasonable for the work claimed. I note however that they include work on the motion for security for costs, which must be eliminated from the assessment. I do think that the hourly rate claimed is a little high. Taking into counts what an overall reasonable fee would be and the necessity of including HST, I assess the costs of the City of Toronto at $20,000 inclusive of HST.

Newbould J.

DATE: September 26, 2012

[^1]: I see these rates on a nearly daily basis in Commercial Court, including billing rates from Gardner Roberts.