Court File and Parties
CITATION: Kakoutis v. Bank of Nova Scotia, 2016 ONSC 2899
COURT FILE NO.: 582/15
DATE: 2016 05 02
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: LOUIS KAKOUTIS and EFFIE KAKOUTIS, Plaintiffs
AND:
The Bank of Nova Scotia, Defendant
BEFORE: Trimble J.
HEARD: April 4, 2016
COUNSEL: Louis Kakoutis for himself and Effie Kakoutis
Adrian Visheau for the Bank of Nova Scotia
COSTS ENDORSEMENT
[1] In my judgment of April 6, 2016, I requested costs submissions. This is my endorsement on costs.
[2] In my judgment, I granted summary judgment action.
[3] By email dated April 15, 2016, Mr. Kakoutis took the position that costs on the motion before me should be left to the Court of Appeal. I am not prepared to do so. I am required to decide all matters before me including the issue costs. If Mr. Kakoutis wishes to dispute my costs endorsement, he may seek leave to appeal from that endorsement.
[4] The Bank of Nova Scotia seeks its costs on a substantial indemnity basis, at $11,709.27, comprising the fees of $9,262.50, HST on fees of $1,204.12, plus disbursements of $1,242.65. The Bank’s position is that it is entitled to costs on a substantial indemnity basis. It was fully successful in obtaining dismissal of the action as a whole. More importantly, the plaintiff’s purpose in commencing the action was improper; namely, an attempt to relitigate causes and issues previously decided in another proceeding.
[5] In assessing costs, I have considered s. 131 of the Courts of Justice Act, Rules 49 and 57.01 of the Rules of Civil Procedure, and the jurisprudence thereunder. Costs awards have a number of purposes, three of which are to indemnify (partly) successful litigants, encourage settlement, correct behaviour of the parties (see 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10). Generally costs should follow the event (see Bell v. Olympia & York (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.)). Costs should to be proportional to the issues in the action and the outcome, and reasonable for the losing part to pay, all circumstances considered (see Boucher v. Public Accountants, (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and Moon v. Sher et al., 2004 39005 (ON CA), [2004] OJ No 4651 (C.A.). Offers to settle must also be considered. Conduct of the parties is also relevant, where it deserves sanction (see Davies v. Clarington (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.).
[6] The Bank is entitled to costs on substantial indemnity basis. My conclusion was that the action was an abuse of process as the issues in the action conduces brought were decided in an earlier proceeding. As Reid, J. Said in Rousseau V. Scotia Mortgage Corporation, 2013 ONSC 677, it is not in the public interest that claims should be re-litigate. The Kakoutis’ behaviour needs correcting. They need to appreciate that their conduct in bringing actions that merely re-package earlier actions, is not appropriate.
[7] As to quantum of the costs, I fix the amount at $7500 for fees, plus HST on the fees of $975, and disbursements of $1.242.65 (HST included).
[8] From the bill of costs presented by the Bank, I find that eight hours in the preparation of the Statement of Defense and 28 hours respect to the motion before me, is excessive. In saying this, I make no comment on what is recoverable as between a solicitor in the client. My comment is based on the law stated above, and the principles of proportionality and what is reasonable for the Kakoutises to pay.
Trimble J.
Date: May 2, 2016
CITATION: Kakoutis v. Bank of Nova Scotia, 2016 ONSC 2899
COURT FILE NO.: 582/15
DATE: 2016 05 02
ONTARIO
SUPERIOR COURT OF JUSTICE
Louis Kakoutis and Effie Kakoutis, Plaintiffs
AND:
The Bank of Nova Scotia, Defendant
COSTS ENDORSEMENT
Trimble J.
Released: May 2, 2016