Kakoutis v. Bank of Nova Scotia, 2025 ONSC 2966

Court File No.: CV-12-00468151
Motion Heard: April 23, 2025
Superior Court of Justice – Ontario

RE: Louis Kakoutis and Effie Kakoutis, Plaintiffs, Defendants to the Counterclaim
AND: The Bank of Nova Scotia, Defendant, Plaintiff by Counterclaim

Before: B. McAfee
Counsel:
K. Hou and M. Asad, Counsel for the Moving Party, the Defendant, Plaintiff by Counterclaim, The Bank of Nova Scotia
Louis Kakoutis and Effie Kakoutis, In Person, the Responding Parties, the Plaintiffs, Defendants to the Counterclaim

Heard: April 23, 2025

Endorsement

[1] This is a motion brought by the defendant, plaintiff by counterclaim, The Bank of Nova Scotia (Scotiabank), for leave to issue a writ of possession with respect to the mortgaged property described in the judgment dated April 7, 2015 (the Property).

[2] The plaintiffs, defendants to the counterclaim, Louis Kakoutis and Effie Kakoutis (Mr. and Mrs. Kakoutis) oppose the motion.

[3] This motion was originally brought in writing and without notice. The presiding Associate Judge determined that further evidence was required (see endorsement dated November 29, 2024). Following the receipt of supplementary material, it was determined that the motion should be brought on notice returnable in court.

[4] The motion came before me on April 23, 2025, in short/regular motions court on notice to Mr. and Mrs. Kakoutis and on notice to the occupants of the Property.

Preliminary Issue: Service of Documents

[5] As a preliminary issue, Mr. and Mrs. Kakoutis request an order that, for the next 7 months, they be served with documents at an address on O’Connor Drive and not at the Property. They advise that they no longer reside at the Property. They advise that their daughter, their daughter’s two children and their daughter’s partner are the current occupants of the Property. Mr. and Mrs. Kakoutis also seek an order that the occupants not be served with any documents at the Property, arguing that the most important issue is the security and privacy of the occupants.

[6] I am prepared to make an order that, for the next 7 months, documents to be served by Scotiabank on Mr. and Mrs. Kakoutis be served at the O’Connor Drive address provided on the motion and not at the Property. This is based on the representations of Mr. and Mrs. Kakoutis that they reside at the O’Connor Drive address and plan to reside there for the next 7 months. I am not prepared to make an order that no documents be served on the occupants at the Property. If the occupants are entitled to notice and entitled to be served with a document, they are entitled to be served at the address where they currently reside.

Background and Procedural History

[7] On or about November 20, 2012, Mr. and Mrs. Kakoutis commenced the within action claiming general and aggravated damages for gross negligence, negligent representation, incompetence, misrepresentation, breach of contract, breach of security and breach of duty of care and other relief. Scotiabank defended the action and counterclaimed for monies owing under a Scotialine personal line of credit, monies owing under a mortgage and possession of the Property.

[8] On October 17, 2014 and January 22, 2015, Scotiabank’s motion for summary judgment and the cross-motion of Mr. and Mrs. Kakoutis for summary judgment proceeded before Justice Pollak. On April 7, 2015, Justice Pollak dismissed the cross-motion and dismissed the claim of Mr. and Mrs. Kakoutis and granted summary judgment on Scotiabank’s counterclaim including $28,012.37 due and owing under the Scotialine personal line of credit, $395,974.34 due and owing under the mortgage loan and possession of the Property (Kakoutis v. The Bank of Nova Scotia, 2015 ONSC 513 (Ont. S.C.J.)).

[9] Mr. and Mrs. Kakoutis appealed the judgment of Justice Pollak to the Court of Appeal. The appeal was heard on December 4, 2015, and was dismissed (Kakoutis v. Bank of Nova Scotia, 2015 ONCA 872).

[10] Mr. and Mrs. Kakoutis sought leave to appeal to the Supreme Court of Canada. On June 2, 2016, the Supreme Court of Canada dismissed the application for leave to appeal (Kakoutis v. Bank of Nova Scotia, [2016] S.C.C.A. No. 66).

[11] On April 9, 2015, two days after Justice Pollak dismissed the claims of Mr. and Mrs. Kakoutis, they commenced an action against Scotiabank in Milton. They claimed $6.45 million in damages alleging abuse of process, harassment and intentional infliction of emotional distress relating to Scotiabank’s conduct in the within Toronto action. On April 5, 2016, Justice Trimble dismissed the Milton action on the basis that the action was frivolous and vexatious, and constituted an abuse of process because it was an attempt to re-litigate what was decided in the within Toronto action. In addition, Justice Trimble found that it was plain and obvious that the claim could not succeed (Kakoutis v. Bank of Nova Scotia, 2016 ONSC 2300 (Ont. S.C.J.)).

[12] On October 28, 2019, Scotiabank and Mr. and Mrs. Kakoutis reached a mediated settlement which provided that certain obligations needed to be fulfilled by a certain time failing which the settlement would be null and void. The obligations were not fulfilled within the time required.

[13] On October 3, 2023, counsel for Scotiabank wrote to Mr. and Mrs. Kakoutis advising that Scotiabank remained interested in resolving this matter, provided that a resolution could be reached in a reasonable period of time and promptly implemented. Counsel requested to hear from Mr. and Mrs. Kakoutis by October 25, 2023, failing which Scotiabank advised that they had little option but to move the matter along.

[14] On October 5, 2023, a telephone discussion took place between counsel for Scotiabank and Mr. Kakoutis. Mr. Kakoutis sent an email to counsel for Scotiabank following the telephone call. A resolution was not reached.

[15] On January 26, 2024, counsel for Scotiabank wrote to Mr. and Mrs. Kakoutis providing notice that Scotiabank was proceeding to obtain a writ of possession.

[16] No payments have been received by Scotiabank or their counsel in accordance with the judgment. The mortgage remains in default and is outstanding.

[17] While Mr. and Mrs. Kakoutis no longer reside at the Property, they remain the registered owners.

Legal Framework

[18] Rule 60.03 of the Rules of Civil Procedure provides:

60.03 An order for recovery or delivery of the possession of land may be enforced by a writ of possession (Form 60C) under Rule 60.10.

[19] Rule 60.10 provides in part:

60.10(1) A writ of possession (Form 60C) may be issued only with leave of the court, obtained on motion, without notice or at the time an order entitling a party to possession is made.

60.10(2) The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.

Notice and Service

[20] I am satisfied that all persons in actual possession of the Property have received sufficient notice of the proceeding to have enabled them to apply to the court for relief. On January 31, 2024, the daughter of Mr. and Mrs. Kakoutis was personally served at the Property with a notice to vacate letter (affidavit of service of Michael Carr sworn February 8, 2024). On December 3, 2024, the daughter of Mr. and Mrs. Kakoutis was again served at the Property with a notice to vacate letter to give to all adult occupants. On December 4, 2024, a copy of the notice to vacate letter was also mailed to all adult occupants of the Property (affidavit of service of Michael Carr sworn December 5, 2024). The occupants were also served with this motion on March 7, 2025 (affidavit of service of Ume Kalsoom sworn March 10, 2025). The motion record contains a copy of the judgment.

[21] There is no issue that Mr. and Mrs. Kakoutis, who advise that they no longer reside at the Property, have sufficient notice of the proceeding.

Hardship and Re-litigation

[22] In Canada Trustco Mortgage Co. v. McLean, para. 12, Justice Potts states:

…hardship caused to the defendants-mortgagors by the plaintiff mortgagee enforcing his right to possession cannot be considered on an application for leave to issue a writ of possession. I am reinforced in this view by the fact that the application for leave may be made ex parte, before the master, on affidavit material prepared by the plaintiff.

(See also 1470760 Ontario Inc. v. Del Terrelonge, 2023 ONSC 85 (Ont. S.C.J.), paras. 51-52.)

[23] To the extent that Mr. and Mrs. Kakoutis may seek to revisit the judgment and the facts giving rise to the judgment, I am not satisfied that it is appropriate to do so on this motion for leave to issue a writ of possession. Mr. and Mrs. Kakoutis have exhausted their rights of appeal. Judgment for possession was granted 10 years ago.

Disposition

[24] For these reasons, I am satisfied that leave to issue a writ of possession with respect to the Property ought to be granted at this time.

[25] At the return of the motion, Scotiabank requested costs of the motion. I decline to exercise my discretion to award Scotiabank costs of the motion. Scotiabank does not seek costs in the notice of motion. There shall be no costs of this motion.

Summary of Order

1. For a period of 7 months from April 23, 2025, any documents to be served by Scotiabank on Mr. and Mrs. Kakoutis shall be served at 577 O’Connor Drive, Toronto, M4C 2Z9 and not at the Property;
2. Leave is granted to issue a writ of possession with respect to the Property;
3. There shall be no costs of the motion.

[27] I have signed the order attached.

B. McAfee
Date: May 20, 2025