CITATION: Martino v. Zeppieri, 2014 ONSC 3102
DIVISIONAL COURT FILE NO.: 558/13
DATE: 20140521
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, DAMBROT AND RAY JJ.
BETWEEN:
KRISTINA MARTINO
Applicant/Respondent
– and –
GIUSEPPE MARTINO
Respondent
-and –
ENIO ZEPPIERI and ZEPPIERI & ASSOCIATES
Non-Parties/Appellant
Donald Zaldin, for the Applicant/ Respondent
Gregory Gryguc, for the Applicant/ Appellant
HEARD at Toronto: May 21, 2014
KITELEY J. (orally)
[1] This is an appeal from the order of H. K. O’Connell J. dated June 6, 2012. The appeal was launched by Enio Zeppieri and Zeppieri & Associates, the named respondent in the order. Zeppieri & Associates had been counsel for Mr. Martino in family law proceedings.
[2] Counsel argues that in para. 8 of the Reasons for Decision, the motions judge made a mistake of fact, in that he found that funds were advanced to Mr. Zeppieri’s firm on May 31, 2011 in the amount of $7,500 received from Mr. Martino. He pointed out the affidavit of Mr. Zeppieri that indicates that payment was made May 30. However, the unqualified admission by counsel for Mr. Zeppieri on the hearing of the submissions before O’Connell J. was that that payment was made May 31 after the Notice of Motion was served. We are satisfied there is no mistake of fact.
[3] The second challenge to the decision relates to para. 43 of the Reasons for Decision. In para. 42 the motions judge correctly identified the proper principle and he then went on to apply the proper principle. We are not satisfied that the legal and factual conclusion he arrived at in para. 43 constitutes a palpable and overriding error.
[4] The appeal from that order of O’Connell J. vis-à-vis the payment of $27,500 is dismissed.
[5] The second matter heard so far today, was an appeal as to costs from an Endorsement dated March 5, 2013. In an exchange with counsel, the panel formulated the conclusion that leave was required. In the recess, we satisfied ourselves that based upon s. 133(b) of the Courts of Justice Act, leave is not required.
[6] Paragraph 25 of the Endorsement as to costs demonstrates a sound basis for the exercise of discretion. This Court is required to give deference to the court below in the exercise of discretion. We are not satisfied there is any palpable and overriding error.
[7] The appeal as to costs in the order made March 5, 2013 is dismissed.
[8] Counsel having agreed that the amount of costs for those two matters would be $5,000 subject to success, we order that Enio Zeppieri and Zeppieri & Associates pay costs of the respondent fixed in the amount of $5,000.
[9] There were other residual matters before us as a result of the consent order of Edwards J. dated June 20, 2013. Having heard the result of the appeals, counsel agreed on those matters. Order to go that Mr. Zeppieri and Zeppieri & Associates pay $7,500 for costs on all other matters before us.
KITELEY J.
DAMBROT J.
RAY J.
Date of Reasons for Judgment: May 21, 2014
Date of Release: May 23, 2014
CITATION: Martino v. Zeppieri, 2014 ONSC 3102
DIVISIONAL COURT FILE NO.: 558/13
DATE: 20140521
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, DAMBROT AND RAY JJ.
BETWEEN:
KRISTINA MARTINO
Applicant/Respondent
– and –
GIUSEPPE MARTINO
Respondent
-and –
ENIO ZEPPIERI and ZEPPIERI & ASSOCIATES
Non-Parties/Appellant
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: May 21, 2014
Date of Release: May 23, 2014