



COURT OF APPEAL FOR ONTARIO

CITATION:  Kakoutis v. Bank of Nova Scotia, 2015 ONCA 872

DATE: 20151210

DOCKET: C60389

Sharpe, Cronk and Miller JJ.A.

BETWEEN

Louis Kakoutis and Effie Kakoutis

Plaintiffs (Appellants)

and

The Bank of Nova Scotia

Defendant (Respondent)

Louis Kakoutis and Effie Kakoutis, appearing in person

Adrian Visheau, for the respondent

Heard and released orally: December 4, 2015

On appeal from the judgment of Justice Andra M. Pollak of
    the Superior Court of Justice, dated April 7, 2015.

ENDORSEMENT

[1]

In our view, this appeal must be dismissed.

[2]

We do not agree with the appellants submission that their procedural
    rights were denied by the manner in which the motions judge treated the prior
    endorsement of Firestone J.  When the matter came before her, the motions judge
    clearly ruled that if the twin summary judgment motions were to proceed before
    her, they would have to be dealt with from the beginning.  The appellants
    therefore had a choice.  If they wished to proceed before the motions judge,
    they had to waive the effect of Firestone J.s order and start anew so that the
    motions judge could decide on her own whether a mini-trial was required.

[3]

The appellants made their choice.  Faced with these circumstances, all
    parties agreed that the motions judge should proceed to hear the motions
    regardless of Firestone J.s prior order.  They also confirmed that Firestone
    J. did not hear the motions on the merits and that he had not remained seized
    of the matters in issue.  His order, therefore, was not binding on the motions
    judge in respect of any substantive or procedural issue.

[4]

The motions judge accepted the parties positions, heard the summary
    judgment motions on the merits, considered the governing principles regarding
    summary judgment motions and, having evaluated the evidence, determined that she
    was able to render a decision as to whether there was a genuine issue for
    trial.  She concluded that there was not.

[5]

Contrary to the appellants contention, the hearing transcript confirms
    that the motions judge was acutely aware of the principles applicable to
    summary judgment motions as articulated by the Supreme Court of Canada in
Hryniak
    v. Maudlin
, 2014 SCC 7, [2014] 1 S.C.R. 87, and that she did not err in
    applying them in this case.  There was no denial of access to justice.

[6]

The appellants acknowledge that, after the date of the disputed payment
    on their line of credit with the respondent bank (the Bank), they made no
    payment after March 12, 2012 on the outstanding balance owed to the Bank on the
    line of credit.  By reason of the contractual banking arrangements between the
    parties, the appellants default under their line of credit also triggered
    default under their mortgage loan with the Bank.  Neither facility, the line of
    credit or the mortgage loan account, were ever brought into good standing.

[7]

In these circumstances, we agree with the motions judge that there was
    no legal basis to support the appellants claim that they have no obligation to
    repay the Bank for the outstanding amounts owed under their credit facilities. 
    Similarly, there was no basis, in fact or in law, to support the appellants
    claim against the Bank.

[8]

The appeal, therefore, is dismissed.  Costs of the appeal are payable to
    the Bank, fixed in the amount of $10,000, inclusive of disbursements and
    applicable taxes.

Robert Sharpe J.A.

E.A. Cronk J.A.

B.W. Miller J.A.


