



COURT OF APPEAL FOR ONTARIO

CITATION: Carbone v.
    Zderic, 2014 ONCA 849

DATE: 20141127

DOCKET: C58670

Simmons, MacFarland and Benotto JJ.A.

BETWEEN

Francesco Carbone

Plaintiff

(Respondent)

and

Zeljko A. Zderic,
    a.k.a. Zeljko Zeluca Zderic, a.k.a. Sasha Vujacic, a.k.a. Sasa Vujacic, a.k.a.
    Sasaa Vujacic, a.k.a. Alex Vujicic, a.k.a. Aleksandar Vujicic, a.k.a. Alex
    Visser, a.k.a. Pavle Kolic and
Brenda Kover a.k.a. Brenda
    Marie Joyce Kover

Defendants

(Appellants)

Robert W. Wilson, for the appellant

Raffaele Sparano, for the respondent

Heard and released orally: November 19, 2014

On appeal from the judgment of Justice David L. Edwards
    of the Superior Court of Justice, dated March 12, 2014.

ENDORSEMENT

[1]

The appellant concedes that she is liable to the respondent for the sum
    set out in para. 3 of the judgment of Edwards J. of March 12, 2014, but
    disputes those monies were obtained by fraud or false pretenses.  She seeks to
    have the judgment against her in relation to the two promissory notes set
    aside.

[2]

There is no allegation in the statement of claim nor in the initial
    affidavit of Francesco Carbone in support of the motion for summary judgment
    that the appellant signed either promissory note. Further, there is no
    allegation of fraudulent conduct against her either in the statement of claim
    nor in the initial affidavit in support of the motion for summary judgment.

[3]

The second affidavit filed in support of the motion for summary judgment
    was never served on the appellant and there was no order dispensing with service
    of same. So, in our view, those portions of the judgment against the appellant on
    the promissory notes; the findings of false pretenses or fraudulent
    misrepresentation; and the award of punitive damages based on such conduct
    cannot stand and are set aside.

[4]

Although the brief reasons of the motion judge are conclusory and do not
    explain the basis for his determinations, having been awarded on a full
    indemnity basis, the costs award below must have been based on the finding of
    fraudulent conduct.

[5]

Accordingly, the costs award below as against the appellant is varied to
    $7500 on a partial indemnity scale. Costs of the appeal will be to the
    appellant on a partial indemnity scale fixed in the amount of $7500 inclusive
    of disbursements and applicable taxes.

Janet
    Simmons J.A.

J.
    MacFarland J.A.

M. L. Benotto J.A.


