Carbone v. Zderic, 2014 ONCA 849

ENDORSEMENT

1The 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.

2There 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.

3The 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.

4Although 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.

5Accordingly, 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.