Executive Summary: Key Legal and Evidentiary Issues

• Whether the appellants met the RJR-MacDonald test for a stay of eviction pending their proposed leave application to the Supreme Court of Canada.
• Extent to which issues already finally decided in prior proceedings could be relitigated, raising abuse of process and re-litigation concerns.
• Adequacy of evidentiary support for alleged irreparable harm, including the absence of proof that eviction would affect a separate catastrophic impairment determination.
• Proper application of mortgage enforcement remedies, including writ of possession and long-delayed execution of an eviction order.
• Appropriateness of restricting self-represented litigants from bringing further interlocutory motions under r. 37.16 of the Rules of Civil Procedure.
• Allocation of costs where the bank succeeded on the stay motion but failed on its cross-motion to prohibit further motions.

Factual background and mortgage dispute

Louis and Effie Kakoutis owned a residential property at 102 Topham Crescent in Richmond Hill, Ontario. In 2011, they granted a mortgage in favour of the Bank of Nova Scotia to secure a mortgage loan and a line of credit. Over time, the loan went into default when the appellants failed to keep up the required mortgage payments. The bank responded by pursuing mortgage enforcement remedies. In April 2015, the Superior Court of Justice in Toronto granted summary judgment in favour of the Bank of Nova Scotia because of non-payment of the mortgage loan. As part of that judgment, the appellants were ordered to deliver possession of the property to the bank. The appellants appealed that decision to the Court of Appeal for Ontario, but their appeal was dismissed. They then sought leave to appeal to the Supreme Court of Canada, which was also refused. Despite those outcomes, the appellants remained in the property.

Subsequent proceedings and abuse of process concerns

Rather than accept the finality of the Toronto judgment, the appellants commenced a new action in Milton, advancing essentially the same arguments that had already been determined against them. In April 2016, the Milton action was dismissed as frivolous and vexatious and as an abuse of process, with the court finding that it improperly attempted to re-litigate issues that had already been decided. The appellants appealed that decision to the Court of Appeal, but the appeal was dismissed. Litigation over the same mortgage dispute therefore continued across multiple forums and years, even after the core merits had been resolved in the bank’s favour.

Mortgage enforcement and writ of possession

Despite the long history of judgments favouring the bank, actual enforcement of the bank’s right to possession did not occur for many years. On May 20, 2025, an associate judge of the Superior Court of Justice granted the bank leave to issue a writ of possession with respect to the property. The appellants attempted to appeal that order to the Court of Appeal, but the Court of Appeal quashed the appeal, holding that it lacked jurisdiction under s. 19(1)(c) of the Courts of Justice Act to hear appeals from an associate judge. The appellants did not seek to transfer the matter to the Divisional Court or back to the Superior Court, leaving the associate judge’s order in place. In the meantime, the appellants continued to occupy the property, despite the 2015 summary judgment requiring vacant possession and the 2025 order authorizing a writ of possession.

The motion for a stay of eviction

Facing eviction, the appellants brought a motion in the Court of Appeal seeking a stay of the eviction order pending determination of what appeared to be yet another application for leave to appeal the December 2015 Court of Appeal judgment to the Supreme Court of Canada. To assess this request, the court applied the familiar three-part test for a stay drawn from RJR-MacDonald Inc. v. Canada (Attorney General): (1) whether there is a serious question to be tried; (2) whether the moving party would suffer irreparable harm if a stay were refused; and (3) where the balance of convenience lies between the parties. On the first element, the court held that the appellants’ position was entirely devoid of merit. They were effectively seeking to re-litigate issues that had been finally determined nearly a decade earlier by the Court of Appeal and the Supreme Court of Canada’s refusal of leave. The low threshold of a “serious question” was not met in circumstances where the case had already been conclusively decided against them more than once. On irreparable harm, the appellants argued that they would suffer serious prejudice if evicted, referencing Mr. Kakoutis’s medical and personal circumstances and a 2022 application for a Determination of Catastrophic Impairment under the Statutory Accident Benefits Schedule. The court noted that the underlying accident dated back to 2003 and was unrelated to the mortgage dispute, and there was no evidence explaining how eviction would impair his ability to attend assessments or provide medical evidence in that separate proceeding. The appellants also disputed the bank’s assertion that no mortgage payments had been made since 2012, but they provided no evidence contradicting the bank’s position. The court emphasized that the appellants had continued to enjoy the property for over a decade after being ordered to vacate, and simply bringing that situation to an end did not constitute irreparable harm. Finally, the court held that the balance of convenience and the interests of justice favoured the bank. The appellants had previously obtained a stay of eviction from the Superior Court to allow their 2025 appeal to be heard by the Court of Appeal, expressly agreeing to be bound by the appellate decision. After losing that appeal, they were now seeking to further postpone enforcement. Given the history, the court concluded that all three elements of the RJR-MacDonald test weighed against granting a stay and dismissed the motion. A temporary stay of eviction previously granted by another judge of the Court of Appeal, pending this motion, expired with the release of these reasons.

The cross-motion to restrict further motions under r. 37.16

The Bank of Nova Scotia brought a cross-motion under rule 37.16 of the Rules of Civil Procedure, seeking an order that would prevent the appellants from bringing further interlocutory motions in this proceeding without first obtaining leave. That rule permits a judge to prohibit further motions where a party is attempting to delay or increase costs or otherwise abuse the court’s process by a multiplicity of frivolous or vexatious motions. The court reviewed prior Court of Appeal authorities where such orders had been made, including cases involving repeated review motions, motions brought in the wrong court, and situations marked by lengthy proceedings with numerous unpaid costs orders. In this case, the court accepted that the appellants were in effect trying to re-litigate claims that had already been adjudicated and that they had previously launched an appeal to the wrong court. However, the bank had not previously taken the position, either before the associate judge or on appeal, that the proceedings were frivolous, vexatious, or an abuse of process. Moreover, the appellants’ earlier efforts to obtain stays of eviction had actually succeeded, indicating that those motions were not simply frivolous tactics. While the court recognized that the current appeal was devoid of merit, it found that the appellants had not yet engaged in a multiplicity of frivolous or vexatious motions sufficient to justify the exceptional remedy under r. 37.16. The judge was also mindful that the appellants were self-represented. On that basis, the court refused to grant the requested order but did so without prejudice to the bank’s right to renew its request if the appellants’ conduct later crossed the threshold into abusive motion practice.

Outcome, successful party, and monetary consequences

In the final result, the Court of Appeal dismissed the appellants’ motion for a stay of the eviction order and also dismissed the bank’s cross-motion to prohibit further motions without leave. The bank requested full-indemnity costs of $2,505.21 for both motions. Recognizing that the bank had succeeded only on the appellants’ stay motion but that this motion was the primary focus of the hearing, the court ordered the appellants to pay the Bank of Nova Scotia costs fixed at $1,500 on an all-inclusive basis. The Bank of Nova Scotia was therefore the successful party in this appellate motion, and the total monetary award ordered in its favour in this decision was $1,500 in costs, with no additional damages or other quantified monetary relief determined.