ONTARIO SUPERIOR COURT OF JUSTICE
Court File No. CV-12-468151
November 4, 2014
THIS IS A RUSH TRANSCRIPT. PROVIDED FOR EDUCATIONAL PURPOSES ONLY.
LK: Alright your honour.
SUMMARY JUDGMENT MOTION
Judge: Good Morning
Response: Good Morning Your honour.
Judge: Okay, let's see who do we have here. You are.
Bank Lawyer: Adrian Visheau, Counsel for the Bank.
LK: Louis Kakoutis, and I represent myself. And I am representing my wife as well.
Judge: Okay, you know that you cannot be representing your wife. Your wife is a seperate person with rights, etcetera, etcetera. You're not a lawyer. You can't speak for her. You cannot represent her.
LK: Okay. She's in New York Teaching, I have an affidavit from her.
Judge: I mean, I don't know what the affidavit -if she wants to say anything, if she wants to make any submissions she must be here physically in person. If there's an affidavit that you'd like to present to the court you must give it to counsel and see whether he objects and then we'll see whether or not we can deal with it. But you cannot speak for her.
Judge: That is, you know, it's just because you're not a lawyer.
LK: I understand.
Judge: Because she is a separate, legal person.
LK: True.
Bank Lawyer: Mr. Kakoutis did provide me with an affidavit from Effie Kakoutis. This is the second Affidavit from Effie Kakoutis. Did you get a copy for her Honour.
LK: Oh sure.
Bank Lawyer: I'm not sure it's proper to submit this evidence today.
Judge: Well, I'm, uh, I don't know what your view is on what you are proposing, but you know, she knew about the motion, she's a plaintiff, she's a party and if she wants to make submissions, she must either send a lawyer or attend in person.
LK: Or what about the affidavit. The sworn affidavit.
Judge: That's not how submissions are made to the court. I don't know what the affidavit says so, you can hand it up, I can look at it. But it's not like I'm sorry I can't.
LK: No, I understand your honour.
Judge: I'm not entitled to receive it, I'll look at it but I'm telling you that we can't do it that way.
LK: Alright, can I show it to you then your honour.
Judge: Sure, absolutely.
LK: Sure. There you go.
Judge: No, this is not proper. She's making submissions by way of affidavit, unless the Bank specifically agrees, I can't accept this.
Bank Lawyer: I don't see any reason why we would agree.
Judge: Okay, there you go so
LK: Your Honour, when we appeared before Justice Firestone, he indicated that what he needs to make a just determination is the testimony of the 2 Bank witnesses and the testimony of myself and he didn't say anything about Effie Kakoutis.
Judge: OK, let me, let me, and I have a couple of things that I need hear submissions from both of you on -firstly, I am aware of the order made by Justice Firestone. I have concerns about my jurisdiction to hear this matter, to hear this mini-trial. There is a very famous case from the Supreme Court of Canada, called Hryniak. Which I understand came down shortly after you appeared before Justice Firestone. And I'm just telling you what my concerns are and I'll let you respond. In Hryniak, the court very clearly describes a process which must be followed for Summary Judgements. The first part of the process is that the Judge hears the submissions of the parties and determines -can I make a decision in this Summary Judgment motion. And if the answer is no, I don't have enough here, the Judge then has to decide -I have the discretion to order further evidence. Can I make a decision based on the further evidence that I order. Now, the thing is that that decision about hearing further evidence is the use of discretion of the particular judge making the order. The order of Justice Firestone is mandatory It says MUST -the order for this case to be properly adjudicated, it is clear in my view that Justice Firestone has made a substantive determination at issue. Now, it is now before me. I am very concerned that I have no jurisdiction pursuant to the Hryniak case, to continue to hear this matter. Why, because I have not had the benefit of going through the two-step process. My view might be different. I notice for example in this particular case there was a video. Which was part of the materials. That has nothing to do with extraneous evidence. There is no indication, I don't know what happened at the last hearing, but there is no indication to me that Justice Firestone viewed that video. If, and it's a giant if, I need to hear submissions because if I were to hear this I would start all over again, and I would have to look at the stuff on the record, and if I were to do that I am concerned that that is an automatic right of appeal to the loser -because I have not followed the procedure, which is very clear in my view, that in Hryniak. And the view is that you take it, you look at what's on the record, you hear submissions of the parties, you sit back and you say, okay. Can I make a decision on this. Mmmmmmm, no I'm not comfortable. I think I need one, two, three, four, five, six, seven, eight, nine ten. I'm going to order a mini-trial. I hear the mini-trial. I then decide -now can I make a decision? And maybe the answer is yes, maybe the answer is no. But there has been, arguably, I need to hear from you, an order of the court that says, in mandatory language in order to make a just determination the following must occur -one, two, three, four five. And, ah, the motions are adjourned, so it's not like you've gone outside of the Summary Judgment procedure, the motions have been adjourned, we have a new day set to hear the motions, the motions haven't changed, and present oral evidence by way of a mini-trial, as ordered by Justice Firestone -I am not seized. Okay, he is not seized but does that give me, a new court, jurisdiction, under Hryniak, to hear your case. Because, maybe as I said, in order to make that determination, I'd have to go back and hear from you, look at the video, look at everything that's in here.
LK: Your Honour
Judge: Hey wait a minute, we're going to go -I need to tell you what my position is - we'll be very measured about this -okay so I don't want to waste time. Um, I'm going to go, first of all I believe it is the Banks' Motion, and we're going to have the Bank go first, because they have the burden of proof, remember, it's not you, the Banks' Motion to dismiss your action and then your Motion to dismiss the Banks' cross-claim, so, the Bank is going to go first, cause they're the first people that said get rid of this, we should have the case dismissed. So, I'm going to ask the Bank firstly to respond to the question of my jurisdiction to proceed today. The second thing is, and then it's going to be your turn, and then the Bank has the right to reply, only because they have the burden of proof. There's also another concern of mine -and the Bank has filed, not only one motion but two motions. There's also a motion saying there's no just cause of action in the statement of claim -the statement of claim should be struck. And it seems to me that it's also a little silly to be dealing with a motion for Summay Judgement on a claim that they allegedly say to be struck. Like we're putting the cart before the horse. And then thirdly I'd like to point out to the parties that if you had only gone to trial, you would have been done way faster. But in order to hurry up you can now hurry up and wait. So, I want to do this in a measured way, we're not going to go back and forth. So I mean I know you get it. You understand. Um, so you won't interrupt him and he doesn't get to interrupt you. You get to chill.
LK: Thank You Your Honour.
Judge: And counsel is going to respond to my concerns.
Bank Lawyer: Your honour, it's not a motion to strike, it's a motion for Summary Judgment.
Judge: Your factum spent a huge amount of time dealing with that issue.
Bank Lawyer: I go through and articulate the various heads of damages, uhm, specified by Mr. Kakoutis's statement of claim I say they don't apply to them uhm, so I don't think I booked the motion under the first part of your argument.
Judge: No, that's why I'm asking you, I need to clarify, I need to know exactly what the court is looking at.
Bank Lawyer: First of all it's a motion for Summary Judgment.
Judge: Well, you know, there is a timing here of what we're going to do and we're not going to jump into a trial or a mini-trial or a summary judgment if there is another thing that should go first. So I just want to know what are you arguing.
Bank Lawyer: Rule 21.
Judge: I know you're doing it in the alternative but you've got it backwards. You're going like this -let's use the maximum amount of time here. You tell me what are you are arguing?
Bank Lawyer: A motion under Rule 20 for summary judgment.
Judge: So what's that other, are you withdrawing that other
Bank Lawyer: If your honour believes that there's a conflict between the two.
Judge: There's not a conflict. I want to know what you're arguing.
Bank Lawyer: I think that uhm...
Judge: You can't have your cake and eat it too. It's either there or it's not.
Bank Lawyer: Well if that's the case then we'll withdraw the motion under Rule 21.
Judge: Alright. You're sure? You don't need instructions, you don't need to do anything? There you go! Half the motion done.
LK: Thank You you're honour.
Judge: Well done. Okay. He has to ask your permission, by the way to do that.
LK: Okay, your honour, let me just clear on what is being withdrawn, I'm sorry. So the counterclaim is withdrawn?
Judge: No, no, no, no, no
LK: No, not that.
Judge: He's bringing the motion on two grounds. Number one, I win on the on the summary judgment, I should just get my -my counterclaim also says that your claim is no good, but, he's got 2 reasons why your claim is no good. The first one is that on the actual merits you lose and he wins, but the second reason was because your claim itself is deficient. It doesn't provide an actual cause of action. He is now saying I am withdrawing the second part -and his factum is dealing, two thirds of his factum is dealing with that second part. So he can no longer come back and say.
Bank Lawyer: Your honour, where I attack the various alleged causes of action, that's just in the context of Rule 20, I say there's no evidence to support them, they don't apply. That's rule 20. So the majority of the factum, and when I proceed, near the end of the factum, where I say his claim is frivolous and vexatious, that's Rule 21.01(3)(d) and I say in the alternative it's open to the court to find and exercise its discretion and find that this claim has no merit.
Judge: Okay, so that's what you're implying then?
Bank: That's kind of just in the background.
Judge: It's you can't have it both ways. I just want to know, are you arguing that yes or no?
Bank: I will not argue that today, but I certainly
Judge: No, no, no, no, no, no, no, no, no, no. Are you proceeding with it yes or no? If you want to keep it that's fine I'm not forcing you, I just want to know what's in front of the court.
Bank: What's in front of the court is a Rule 20 motion. So I will not argue on the basis of Rule 21.01(3)(d)
Judge: So you are withdrawing it?
Bank: Yes, but I want to make clear that on my attacks on the various heads of damages are part of my Rule 20 motion.
Judge: Yes, and you will not be making any arguments under Rule 21.
Bank: That's right.
Judge: Okay, now, does he have your permission.
LK: Yes your honour, thank you very much.
Judge: Okay, we're done. So that is gone. Good.
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