Court File and Parties
COURT FILE NO.: CV-23-696102-ES DATE: 20231123 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: BOBBY GIANN and VASILIKI (BESSIE) GIANNOPOULOS Applicants – and – NICK GIANNOPOULOS, PANAGIOTA PAPASTEFANOU (a.k.a. PANAYIOTA PAPASTEFANOU and YIOTA PAPASTEFANOU), DOMNIKI SAKELLARIS, KONSTANTINA SAKELLARIS, a minor, and FOTIOS SAKELLARIS, a minor Respondents
Counsel: Michael Crampton, for the Applicants Benjamin D. Arkin and Brian Han, for the respondent Nick Giannopoulos Peter Askew, for the Ontario Children’s Lawyer representing the interests of Konstantina Sakellaris, a minor, Fotios Sakellaris, a minor, and any future, unborn beneficiaries of the estate of Fotios Giannopoulos, deceased
READ: November 23, 2023
FL Myers J
Costs Endorsement
Costs Endorsement
1The respondents Nick Giannopoulos and Panagiota Papastefanou were entirely successful in this proceeding. The applicants were unsuccessful. The Children’s Lawyer supported applicant’s request for production of documents. But she had not taken a position in the main application before it was dismissed.
2The applicants accept that the respondents have prima facie entitlement to their costs. The applicants submit that the CL should not have any costs because she supported their unsuccessful motion.
Costs of Nick Giannopoulos
3While Nick Giannopoulos beat his offer to settle and sought repeatedly to engage the other siblings in negotiation, I do not see a basis for him to be awarded more than partial indemnity for his costs. Rule 49 does not automatically provide a respondent with substantial indemnity costs.
4The applicants accept the reasonableness of the quantum of costs sought by Nick Giannopoulos. The applicants are therefore ordered to pay him costs in the amount of $42,102.19 all-inclusive.
5Nick Giannopoulos is also an estate trustee. He was sued by his co-estate trustee and was left alone to seek to uphold his father’s will. In my view, this is a case where the estate should indemnify Nick Giannopoulos for the reminder of his costs of this proceeding as set out in his Bill of Costs so that he is fully indemnified for his costs of this proceeding in the aggregate.
6I am not dealing at this time with costs of administration distinct from litigation costs. How those are treated by the estate are subject to the regular workings of the estate in due course.
Costs of Panagiota Papastefanou
7Panagiota Papastefanou requests payment of her fees on a full indemnity basis of $20,449.61 all-inclusive. The applicants submit that she should be entitled to partial indemnification for her costs in the amount of $10,410.
8I agree with Ms. Papastefanou that she was vilified and ill-treated by the applicants in this proceeding. In addition to the smearing of her character, the applicants read her mail, made her privileged communications public, and accused her of having a modus operandi as a serial abuser. Even if there could be said to be unusual circumstances in the relationship between Ms. Papastefanou and the deceased (which I did not find) the extraneous attack on her was nasty and completely without evidentiary support. That is reprehensible litigation conduct of the kind discussed by the Court of Appeal in Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239 at para. 43. It follows that I find the applicants liable to pay Ms. Papastefanou her costs on a substantial indemnity basis fixed in the amount of $18,434.46.
9I see no reason to award Ms. Papastefanou a further award from the estate or to make a specific order to deal with the fact that the applicant Vasiliki (Bessie) Giannopoulos lives in the US. The Rules of Civil Procedure dealing with execution and garnishment provide effective enforcement for costs orders.
Costs of the Children’s Lawyer
10The CL asks for full indemnity for her costs from the applicants or the estate (or all three). While the CL backed the wrong horse on the motion and I found the submissions made on behalf of the CL somewhat more mercenary than I expected, no one submits that counsel or the CL did anything but the job they were and are expected to do. They protect the interests of children and the unborn so as to ensure that the court does justice to all affected by its decisions.
11I do not think it fair for either side to be burdened fully with the CL’s costs. In my view it is fair, reasonable, and appropriate in policy for the estate to fully indemnify the CL for her costs of the motion and the proceeding in the amounts of $5,075.96 and $13,860.58 respectively all-inclusive. That reflects a fair sharing among the family of the necessary costs of protecting the children from their dispute.
FL Myers J
Released: November 23, 2023