Court File and Parties

COURT FILE NO.: 92899-15 DATE: 201806 29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Louis and Effie Kakoutis Plaintiffs/ Responding and Moving parties on Motions – and – TD Insurance, Meloche Monnex Defendant/ Moving and Responding Party on Motions

Louis Kakoutis and Effie Kakoutis, Self-Represented Mr. Michael Blinick, for the Defendant

HEARD: December 14, 2017

REASONS FOR JUDGMENT

H.K. O’Connell J.

[1] I heard this motion brought by both parties on December 14, 2017.

[2] The defendant sought summary judgment in relation to the claims of the plaintiffs. The plaintiffs sought the striking of the claim of the defendants and also sought summary judgment.

[3] All motions were heard together. [1]

[4] The plaintiffs filed an affidavit which also pled law, which the defendant did not take umbrage with nor did they seek to cross-examine the affiant Mr. Kakoutis. [2]

[5] I provided written reasons dated December 14, 2017 that addressed the issue of the plaintiffs’ prayer for relief seeking summary judgment as against TD Insurance (also referred to herein as TD)

[6] In those reasons [3] I also addressed Rules 21.01 and 25.01, given that the plaintiffs were seeking ‘striking’ of the defence of TD. [4] I provided those reasons as I advised I would after making a brief oral ruling in court at the end of the motion that I found no basis to grant summary judgment in favour of the plaintiffs nor to strike the statement of defence.

The Hearing on December 14, 2017

[7] Mr. Blinick argued the defendant’s motion for summary judgment. The basis of the motion centred on the expiry of the applicable limitation period in which to commence the action.

[8] The plaintiffs are self-represented. The court was careful to accommodate all of the submissions of the plaintiffs and to give them the time required to be heard.

[9] Mr. Kakoutis made submissions to the court on behalf of himself and his spouse. Mrs. Kakoutis was advised that she could advance submissions in her own right if she wished, but she deferred to her husband and was content to do so.

[10] The court offered Ms. Kakoutis as well a chance to provide any submissions in reply at the end of the motion. Ms. Kakoutis deferred once again to her husband’s submissions which addressed his, as well as her interests, in the litigation. Finally, the court gave Mr. Kakoutis the final right of reply.

[11] During the hearing Mr. Kakoutis advised the court at one point that he sensed bias by the court. This came as a surprise to the court. The court advised him that if he wished to advance an argument that the court was biased either directly as against the plaintiffs’ interests and/ or that there was a basis to believe that there was a reasonable apprehension of bias, the court was duty bound to hear the plaintiffs out.

[12] The plaintiffs did not pursue the matter further, and did not advance a basis for the court to consider any concern that they had.

[13] In addition to my notes and a complete review of the record on the motion, I have taken the time to listen carefully to the oral submissions of the parties on audio to ensure that leaving aside the written material as filed, that there was nothing left to be considered in the equation in arriving at a just result in this case.

[14] I advised the plaintiffs and the moving party defendant that I was reserving judgment on TD’s motion for summary judgment.

Post Hearing of December 14, 2017 and Release of partial reasons on that date

[15] Subsequent to December 14, 2017, my assistant advised me that she was receiving unsolicited emails from the plaintiffs. The court never requested further material from the parties and did not invite further correspondence.

[16] I directed my assistant to keep any communications received from the plaintiffs separate and to place such material in an envelope. My assistant did so. There were, I was advised, several communications undertaken to the court at various points of time post motion date.

[17] I have not read that material. I will not read that material. I have, however, had those unsolicited communications sealed in an envelope and placed with the file. Those materials do not form part of the record on the motion.

[18] Clearly no party should be unilaterally communicating with the court, post hearing of a motion or trial, without the consent of the other party to the litigation, and without the court’s consent.

[19] This is contrary to protocol and violates rule 1.09 of the Rules of Civil Procedure. [5]

[20] Finally, I note that there was never a properly constituted attempt to have the parties re-appear to address any issues via a motion post hearing of the matter in December 2017.

The issue of Productions requested by the plaintiffs

[21] Although this issue was to be before the court on December 15, 2017, on the regular motions date, there is some overlay in the position of the plaintiffs in relation to their claim of bad faith by TD. There is no basis in the evidence before me, leaving aside what I accept is a strident belief of the plaintiffs, that the defendant has withheld productions. Evidence is what is required, not supposition, belief, speculation or innuendo.

[22] The affidavit of documents of TD makes it plain that productions have been extensive. Save and except for the documents listed in Schedule B to the Affidavit of Documents, it is clear that all productions that relate to this file have been made.

[23] The allegation of bad faith, I underscore, seemed premised on the fact that the plaintiffs believe that TD must compensate them, and because it will not engage them on this issue, TD is therefore riddled with bad faith. Regrettably for the plaintiffs, they fail on the evidentiary requirement for a showing of proof.

[24] The court considered carefully the affidavit of Ms. Jeannie Dunlop. Contrary to the position of the plaintiffs that Ms. Dunlop is somehow a proxy for TDs bad faith, not one scintilla of evidence was produced to illustrate that theory. It is just that: a theory. It is devoid of a rooting in any evidentiary foundation.

[25] Likewise In the context of surveillance, there is no reason for the court not to except TD’s assertion that it has disclosed the surveillance that it has undertaken. The plaintiffs have produced no evidence and have not produced even an air of reality to their claim that TD has conducted surveillance on Mr. Kakoutis at other times and has failed to produce the fruits of that surveillance.

[26] I do not doubt that Mr. Kakoutis harbours a belief that he has been under continued surveillance, however, there is no evidence to substantiate his claim in this regard nor has the plaintiff rebutted the evidence of TD that it has fulfilled its disclosure obligation in this respect.

[27] Mere speculation is not evidence. To be frank, disclosure cannot be made of what does not exist.

TD is entitled to Summary Judgment

[28] TD argued that summary judgment should follow as the claims of both the plaintiffs are statute barred. The issue before me was whether summary judgment in favour of the defendant, based on the argument that the limitation period in which to launch the claim pursuant to the Limitations Act or the Insurance Act, was a bar to the action.

[29] The accident that befell Mr. Kakoutis occurred on June 30, 2003. The statement of claim was issued on August 28, 2015. Mr. Kakoutis and in her derivative claim, Mrs. Kakoutis take the position that TD Insurance’s failure to pay him benefits under a motor vehicle insurance policy is actionable in the claims that he and his wife have brought.

[30] When Mr. Kakoutis was examined at discovery in January 2017 he confirmed his knowledge of the statute of limitations as well as being instructed to commence court actions within the limitation period. [6]

[31] His spouse, Ms. Kakoutis was likewise subject to examination for discovery.

[32] I have carefully considered as I must each of the causes of action and damage claims made by the plaintiffs in their statement of claim. For ease of reference those claims are particularized at paragraphs 10-20 of the defendant’s factum in relation to Mr. Kakoutis and at paragraphs 21-31 of the defendant’s factum in relation to Mrs. Kakoutis.

[33] Those paragraphs contain an accurate and succinct summary of the claims and damages sought.

[34] TD relied upon the evidence of Ms. Jeannie Dunlop which was before the court in her affidavit and the exhibits as attached. The plaintiffs had earlier waived their right to cross-examine a representative of TD.

[35] On a summary judgment motion pursuant to Rule 20 of the Rules of Civil Procedure, the court must ask whether there is no genuine issue requiring a trial in respect of a claim or defence.

[36] The law that predated the amendment to Rule 20 survives, in that a party must put its best foot forward.

[37] The court is duty bound to consider all of the evidence submitted by the parties on the motion. In this respect contrary to the submissions of the plaintiffs on the motion, the evidence as given at the examination for discovery of the plaintiffs forms part of the framework.

[38] If a fair and just adjudication can occur at a motion for summary judgment which allows the motion judge to make the necessary findings of fact and apply the law to those facts, a trial is not required. [7]

[39] It is clear on the evidentiary record that the limitation period for the bringing of the action of the plaintiffs has long since expired. Some 12 years passed before the claim was issued post accident.

[40] The claims were discovered both before and after January 01, 2014.

[41] On December 29, 2003, the plaintiff Mr. Kakoutis was denied a benefit under his policy. Any dispute about this denial triggered an obligation by him to commence a dispute about his entitlement within 2 years, pursuant to section 281.1 of the Insurance Act.

[42] Furthermore given section 281.1 of the Insurance Act an action for accident benefits after January 01, 2014 must occur within 2 years of the denial of benefits. No such action was brought.

[43] Nor did Mr. Kakoutis bring an action within 90 days of his failed mediation attempt of May 21, 2014.

[44] In the context of all of the other claims brought in 2015, they are likewise statute barred.

[45] All of the claims were clearly discoverable and indeed known to the plaintiffs as of 2004. Leaving aside section 281.1 of the Insurance Act, the claims were clearly known to the plaintiffs many years before they commenced their action.

[46] The plaintiffs argued bad faith. They see TD as a villain standing in the way of their just desserts. Bad faith is a significant feature of their claim. When shown to exist, it is a serious matter.

[47] I have carefully considered this argument. The unfortunate reality for the plaintiffs is that their argument of bad faith is not tethered to any evidence. Indeed the belief in bad faith by TD is not a new theory for the plaintiffs. It informs their view as to the denial of accident benefits that extends back many years. Under the old Limitations Act or the new, the claim was not commenced within the relevant limitations period.

[48] As a consequence in relation to the claim of bad faith there is no genuine issue requiring a trial, under the period of time for which the prior Limitations Act mandated (6 years) and the new Limitations Act post January 2004 of 2 years.

[49] Likewise the claims of the plaintiffs for mental and emotional distress are also statute barred. The claims for both parties are out of time by virtue of the limitation period in the Insurance Act for Mr. Kakoutis and by virtue of the Limitations Act for Mrs. Kakoutis.

[50] These claims were well known to the plaintiffs shortly after the accident in 2003. In this respect the evidence of the plaintiffs at their discovery makes this plain.

[51] In the context of the claim for breach of contract, whether one accepts the interpretation of the time of when the limitations clock starts to tick under either the decision in Arsenault v. Dumfries Mutual Insurance Co., a decision of the Ontario court of appeal, or Spadafora v. Dominion of Canada, a decision of the Ontario superior court, the breach of contract claim by Mr. Kakoutis arises from denials of benefits throughout the claims history.

[52] Mr. Kakoutis knew or ought to have known no later than September 06, 2006 that he would not be receiving any benefits. There was a mechanism to dispute the refusal but it was not undertaken. The claim is statute barred. There is therefore no genuine issue for trial.

[53] The same expiration of the limitations period applies to all other claims brought by the plaintiffs. I would add here that there is nothing in the record to suggest that TD lulled the plaintiffs into complacency or in any manner acted to obstruct their ability and right to bring an action within the relevant limitation periods.

[54] Clearly the time period never tolled otherwise.

[55] Given my findings on the expiration of the limitation periods, and given that the damages claimed all relate to the issue of TD not extending benefits to Mr. Kakoutis, his and his wife’s claims for damages are also statute barred. There is no genuine issue requiring a trial.

[56] Finally in the context of the claim for breach of privacy the claim is likewise statute barred. In this respect I adopt the position of TD at paragraphs 87-90 of its factum.

[57] Let me end by saying that counsel Mr. Blinick was very fair in his argument to the court in recognizing that it would appear that the plaintiffs truly believe that they have been treated wrongly by TD. The fact is there is no evidence of that and in particular no basis upon which to let the action of either plaintiff proceed given the expiration of limitation periods.

[58] Summary judgment therefore issues in favour of TD in the context of each of the plaintiff’s claims.

[59] Counsel for TD may serve the plaintiffs with its submissions on costs as follows: cost submissions of no more than 3 pages, plus bill of costs to be served and filed by July 16, 2018 via fax (905 743 2801) to my attention at the Superior Court at Oshawa. The plaintiffs to reply, on the same terms as to length of submissions, by July 25, 2018. Any reply of TD to be provided within 5 days of receipt of the plaintiff’s material.

[60] To be clear the plaintiffs are not to communicate with the court except to provide their response to TD’s cost submissions,

H.K. O’Connell, J.

Released: June 29, 2018

Footnotes

[1] The plaintiffs filed their motion record on December 08, 2017 and the defendant filed on December 11, 2017.

[2] Mr. Blinick for TD did not object to the failure of the plaintiffs to file a factum, and was amenable to agree that the affidavit in the plaintiff’s motion record could be considered a hybrid of an affidavit and a factum.

[3] It should be noted that those reasons, in error, refer on the front page to a release date of 20141214. This is a typo. The correct date is noted on the last page, namely December 14, 2017.

[5] See also Walker Estate v. York Finch General Hospital, [1998] O.J. No. 2271 where Borins J., as he then was, provides his thoughts on such communication. I have done what he suggests at paragraph 34, and have as noted ignored the missives by not reading them. Were the practice of communicating with a judge while a matter was on reserve, absent consent of all parties to be countenanced, there would be a substantial incursion into the notion of finality of litigation leaving aside Rule 1.09.

[6] When I commenced hearing the motion on December 14, 2017 I did not have the transcripts of the discovery of the plaintiffs although counsel advised that they were filed. I was provided during the motion with the transcript of the evidence of Mrs. Kakoutis and as well, a CD containing the transcripts of both plaintiffs as well as the electronic motion record of the defendant.

[7] See: Hryniak v. Mauldin, 2014 SCC 7.