Court File and Parties

Court of Appeal for Ontario Date: 20230626 Docket: M53987 (COA-22-CV-0106)

Before: Doherty, Hoy and Favreau JJ.A.

Between:

Aleardo Caroti, Jacinta Caroti, Ian Grounds, Moraig Grounds, Nancy Kostelac, Brian McDowell, Biljana Nizalek, Marielle Pelchat-Morris, Wilma Jesus, Monica Savona and Mike Klecina as Estate Trustee of the Estate of Boris Klecina Plaintiffs (Respondents / Appellants by way of cross-appeal / Responding Parties)

And:

Ante Kegalj, Anthony Vuletic*, John Vuletic*, Mira Vuletic*, Embleton Properties Corp., 1857325 Ontario Ltd., and Brampton G&A Holdings Inc. Defendants (Appellants / Respondents by way of cross-appeal / Moving Parties*)

Counsel: Lars Brusven and Joseph Stonehouse, for the moving parties Caroline Abela, for the responding parties

Heard and released orally: June 6, 2023

Reasons for Decision

[1] The trial judge found that the moving parties had perpetrated a large and complex fraud and granted judgment in favour of the respondents in the amount of approximately $13.8 million. In the face of evidence that the moving parties had begun to dissipate, encumber and transfer their assets, the respondents successfully moved before a single judge of this court for an order lifting the automatic stay of that order pending appeal and ordering the payment into court of monies that the moving parties received, and are to receive, from a third party, Dorham Holdings Inc. (“Dorham”), since the conclusion of trial.

[2] The moving parties’ appeal was dismissed for delay on February 16, 2023. A motion to set aside the dismissal is pending.

[3] The moving parties now ask this panel to review and set aside paragraphs 1(b), 2, 3, and 4 of the order of the motion judge. No monies have been paid into court.

[4] Despite the fact that the moving parties’ appeal has been dismissed for delay, the respondents urge the court to dispose of this motion on its merits.

[5] The appellants rely on only one ground: the motion judge’s failure to expressly advert to what purports to be a share transfer agreement written in Croatian (the “Croatian Document”) attached to an affidavit sworn by one of the appellants – Anthony Vuletic – following trial. They say this was relevant evidence and his failure to consider it amounts to a palpable and overriding error.

[6] Anthony Vuletic deposed that the share transfer agreement was prepared, in Croatian, by a lawyer in Croatia and that pursuant to it, the other moving parties, his parents John and Mira Vuletic, gifted their interest in Dorham to their daughter Teresa, who is not a party to the action. The moving parties have no known assets other than their interest in Dorham and, at trial, disputed that they had any interest in Dorham.

[7] The motion judge did not err in not adverting to the Croatian Document.

[8] The Croatian Document has no evidentiary weight. It was not accompanied by a certified English translation, as required by s. 125(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. As such, it was not properly before the court. Moreover, the Croatian Document was not produced at trial. It was only attached to an affidavit prepared following trial by a person the trial judge had found to be an unreliable and incredible witness. Further, the substance of his evidence was hearsay.

[9] This motion is dismissed. The respondents shall be entitled to their costs of the motion fixed in the amount of $6500, inclusive of HST and disbursements.

“Doherty J.A.”

“Alexandra Hoy J.A.”

“L. Favreau J.A.”