Kakoutis v. The Bank of Nova Scotia, 2015 ONSC 3319

COURT FILE NO.: CV-12-468151

DATE: 20150512

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Louis Kakoutis and Effie Kakoutis, Plaintiffs

AND:

The Bank of Nova Scotia, Defendant

BEFORE: Pollak J.

COUNSEL: Louis Kakoutis, self-represented Plaintiff

Adrian Visheau, for the Defendant

HEARD: October 17, 2014, January 22, 2015

COSTS ENDORSEMENT

[1] The Defendant, The Bank of Nova Scotia ("BNS"), was the successful party on its motion for summary judgment. The Plaintiffs' cross-motion for summary judgment was dismissed.

[2] BNS requests a costs award, on a substantial indemnity basis, of $30,964.72, inclusive of fees, HST and disbursements.

[3] In the alternative, BNS requests a cost award on a partial indemnity basis, of $18,360.42, inclusive of fees, HST and disbursements.

[4] To support this submission, the BNS argues that the Plaintiffs made serious allegations against BNS and its employees, of fraud, theft, dishonesty and incompetence. It is submitted that such serious unproven allegations support an award of costs on a substantial indemnity basis. BNS relies on the case of Hamilton v. Open Window Bakery, 2004 sec 9 at para. 26; Royal Bank of Canada v. Boussoulas 2010 ONSC 5744 at paras. 7-9.

[5] Further, BNS submits that the Plaintiffs complicated the proceedings by reason of their allegations of gross negligence, negligent misrepresentation and breach of security.

[6] Counsel for BNS also states that he was repeatedly contacted by the plaintiff, Louis Kakoutis, by telephone and email. Mr. Kakoutis also attended at a branch of BNS and attempted to videotape operations, resulting in BNS being forced to issue a Notice under the Trespass to Property Act, R.S.O. 1990, c. T.21. Mr. Kakoutis' conduct significantly increased the costs of the proceeding. As the evidence on this submission is not complete, I will not consider it.

[7] As well, BNS relies on its contractual right to recover legal costs. The Plaintiffs were bound by the terms set out in Standard Charge Terms 200706 and BNS's Personal Credit Agreement Companion Booklet.

Standard Charge Terms 200706 (at para. 16) provides that:

• "You will immediately pay all our expenses of enforcing or protecting our security or any of our rights under the Mortgage or any Agreements. Our Expenses include our costs of taking or keeping possession of the property, an allowance for the time and services of our employees utilized in so doing, our legal fees on a solicitor and own client basis and all other costs related to protecting or enforcing our interest under the Mortgage and the Agreements."

The Personal Credit Agreement Companion Booklet (at page 7) provides that:

• "If we have to take collection proceedings under this agreement, you agree that you will pay us our legal costs for any action to collect the amounts due and our reasonable costs, including legal fees, which we incur in order to protect or realize security which you have pledged".

The Personal Credit Agreement Companion Booklet (at page 2) defines "Legal Costs" as:

• "solicitor and own client fees on an indemnity basis for our solicitor/notary, as well as disbursements and taxes".

[8] BNS submits that it is contractually entitled to recover its costs of the litigation on a full indemnity ("solicitor and own client") scale.

[9] BNS submits that the hourly rates charged for counsel were within the reasonable expectations of the parties for a Toronto action and that the motion for summary judgment was brought at an early stage in the proceedings. There were no costs for any examinations for discovery.

[10] BNS submits that its costs are reasonable and appropriate in light of all the circumstances of this case and the factors set out in rule 57.01(1) of the Rules of Civil Procedure, R.R.0. 1990, Reg. 194.

[11] Mr. Kakoutis did not provide the Court with any costs submissions. He stated in an email dated April 27, 2015 (the date any cost submissions by him were due), that:

“Dear Justice Pollak,

Why are you requesting cost submissions? We made those at the hearing when you indicated that in this case, "whoever wins loses" because it is an "easy peasy" case to appeal.

Consequently, would it not be the height of hypocrisy to award costs in favour of anybody?

The Bank send [sic] you the draft judgment to sign? Did the Bank also send you the draft endorsement you signed?

Sincerely,

Louis”

[12] I agree with and accept the submissions of BNS, with the exception of the one I have referred to above.

[13] I have read and considered the submissions of the Defendant, no submissions having been made by the Plaintiff, and I have taken into account the factors set out in Rule 57.01 of the Rules. I am required to award costs that are reasonable and fair. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). I find that having regard to all of the factors I have referred to, I agree with the above-noted submissions of BNS and find that it is just and reasonable in the circumstances of this case to award costs of $30,964.72 (which includes all disbursements and applicable taxes) to BNS to be paid by the Plaintiffs.

Pollak J.

Date: May 12, 2015