Court File and Parties

Court File Nos.: CV-17-1481 and CV-17-5302

Date: August 21, 2025

Ontario Superior Court of Justice

First Action

Between: Peter Pichelli, Todd Leslie, Frank Toth and 958041 Ontario Limited, Plaintiffs and Defendants by Counterclaim

And: Ante Kegalj, Anthony Vuletic, John Vuletic, Embleton Properties Corp., 1857325 Ontario Ltd., and Brampton G&A Holdings Inc., Defendants

Second Action

And 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 in his capacity as Estate Trustee of the Estate of Boris Klecina (also known as Borislav Klecina), Plaintiffs

And: Anthony Vuletic, John Vuletic, Mira Vuletic, Embleton Properties Corp., 1857325 Ontario Ltd., and Brampton G&A Holdings Inc., Defendants

Counterclaim

And Between: Anthony Vuletic, John Vuletic, Mira Vuletic, Embleton Properties Corp. and 1857325 Ontario Ltd., Plaintiffs by Counterclaim

And: Aleardo Caroti, Jacinta Caroti, Ian Grounds, Moraig Grounds, Nancy Kostelac, Brian McDowell, Biljana Nizalek, Marielle Pelchat-Morris, Wilma Jesus, Monica Savona, Milena Boland, Frank Demaria, Jurica Biondic, Renato Biondic, Roberta Biondic, Mike Klecina in his capacity as Estate Trustee of the Estate of Boris Klecina (also known as Borislav Klecina), Anna Bilich, Emma Faria, Katarina Granic, Anton Granic, Marianne Martinovic, Frank Samardzic and Robert Sokic, Defendants by Counterclaim

Further Counterclaim

And Between: Milena Boland, Frank Demaria, Jurica Biondic, Renato Biondic and Roberta Biondic, Defendants by Counterclaim

And: Anthony Vuletic, John Vuletic, Mira Vuletic, Embleton Properties Corp. and 1857325 Ontario Ltd., Defendants by Counterclaim

Before: M.T. Doi J.

Counsel:

• Douglas M. Cunningham, for Peter Pichelli, Todd Leslie, Frank Toth and 958041 Ontario Limited, Moving Parties
• Alfred J. Esterbaur, Agent for Clyde & Co., Lawyers of Record for Milena Boland, Frank Demaria, Jurica Biondic, Renato Biondic and Roberta Biondic, and Agent for Davis Webb LLP, Lawyers of Record for Robert Sokich and Jose Faria, Responding Parties
• Caroline Abela, for Aleardo Caroti, Jacinta Caroti, Ian Grounds, Moraig Grounds, Nancy Kostelac, Brian McDowell, Biljana Nizalek, Marielle Pelchat-Morris, Wilma Jesus and Monica Savona
• Andrew J. MacDonald, for Anna Bilich
• Asher G. Honickman, for Anton Granic and Katarina Granic

Heard: June 4, 2025 (by video)

Endorsement

Motion for Rectification of Judgment and Reasons

Overview

[1] On this rectification motion, the moving parties, Peter Pichelli, Todd Leslie, Frank Toth, and 958041 Ontario Limited (the "Pichelli Group"), seek to amend the trial judgment dated August 15, 2022 (the "Trial Judgment") to obtain judgment against Mira Vuletic who they did not sue. In addition, the Pichelli Group seeks to amend the costs judgment dated February 15, 2023 (the "Costs Judgment") to recover their costs of the action from Ms. Vuletic. The Pichelli Group further seeks to amend my reasons for decision dated December 6, 2024 for the post-trial motion that decided the distribution of funds paid into court (the "Distribution Motion") to align the reasons for decision with the amended Trial Judgment as proposed and to collect on Ms. Vuletic's assets.[1]

[2] The responding parties to the motion are Milena Boland, Frank Demara, Jurica Biondic, Renato Biondic, Roberta Biondic, Robert Sokich, and Jose Faria (the "Responding Parties").[2] They submit that the Pichelli Group brought this motion, ostensibly for rectification, to actually amend their statement of claim by adding Ms. Vuletic as a further defendant to their action after the relevant limitation period had expired, after the trial of the action was heard and decided, after appeals to the Court of Appeal were concluded, and after the Distribution Motion was decided.[3] The Responding Parties submit that the court is functus officio and without jurisdiction to amend the Trial Judgment and Costs Judgment or otherwise add Ms. Vuletic as a defendant to the Pichelli Action at this time. The Responding Parties further submit that the court lacks grounds to amend the judgments under rule 59.06, or to amend the decision or reasons for the Distribution Motion.

[3] For the reasons that follow, I find that the motion should be dismissed.

The Proceedings

[4] Two (2) actions were brought by investors in respect of an unrealized land development project in Brampton. The first was brought by the Pichelli Group in CV-17-1481-00 (the "Pichelli Action"). The second was by Aleardo Caroti, Jacinta Caroti, Ian Grounds, Moraig Grounds, Nancy Kostelac, Brian McDowell, Biljana Nizalek, Marielle Pelchat-Morris, Wilma Jesus, and Monica Savona (the "Caroti Group") in CV-17-5302-00 that also included a claim by Anna Bilich (the "Caroti/Bilich Action"). The Pichelli Group, the Caroti Group, and Ms. Bilich took their claims to trial (the "Trial Parties").[4] The actions were defended at trial by Anthony Vuletic, John Vuletic, Mira Vuletic, Embleton Properties Corp., and 1857325 Ontario Ltd. (the "Defendants").

[5] Importantly, the Pichelli Group did not name Mira Vuletic as a defendant, or articulate any cause of action against her, in their statement of claim.[5] As discussed below, I find that the Pichelli Group previously chose to not name Ms. Vuletic as a defendant in their statement of claim and did not proceed against her in their action.

[6] The following former investors in the land development project settled their claims and did not proceed to trial: Milena Boland, Frank Demaria, Jurica Biondic, Renato Biondic, Roberta Biondic, Robert Sokich, Jose Faria, Anton Granic, Katarina Granic, Frank Samardzic, and Boris Klecina, respectively (collectively, the "Settling Parties").

[7] The Pichelli Action and the Caroti/Bilich Action were jointly case managed, had common discoveries, and were heard at trial together for efficiency. However, no order was ever requested or made to consolidate the actions. The Pichelli Action had its own separate title of proceedings, retained its own court file number, and had its own separately-named parties that did not include Ms. Vuletic who was not named in that action.

[8] At a case management conference conducted on December 1, 2017, LeMay J. conferenced, among other things, the issue of whether any plaintiffs wanted to add Ms. Vuletic as a party to their action. Counsel for some then-unnamed plaintiffs advised that her clients were considering whether to add Mr. Vuletic as a defendant to their proposed action. Similarly, Pichelli Group's counsel advised that his clients were also thinking of adding Ms. Vuletic as a party to their action.

[9] On January 12, 2018, LeMay J. further conferenced the issue of adding Ms. Vuletic as a party and directed the Caroti Group to add her as a party to their action within 30 days if they wished to proceed against her. Ultimately, the Caroti Group named Ms. Vuletic as a defendant in their action, whereas the Pichelli Group chose to not add her to their action.

[10] During examinations for discovery, counsel for the Pichelli Group examined Ms. Vuletic as "a witness" and clearly stated that his clients were not suing her when her lawyer specifically asked for this confirmation at her examination.

[11] Given the above, I am satisfied that the Pichelli Group came to a decision before trial to not add Ms. Vuletic as a defendant to their action and not claim damages or other relief from her. The Pichelli Group did not cross-examine Ms. Vuletic at trial.

[12] On August 15, 2022, I released my reasons for judgment. On October 11, 2022, I released amended reasons for judgment with corrigenda notes, and signed the Trial Judgment after the Pichelli Group consented to its form and content. The judgment for the Pichelli Action awarded no damages from Ms. Vuletic to the Pichelli Group. On February 15, 2023, the Costs Judgment for the Pichelli Action was granted on consent with no costs payable by Ms. Vuletic to the Pichelli Group. Taking this into account, I am satisfied that the Pichelli Group understood that they had not obtained judgment against Ms. Vuletic.

[13] On September 22, 2022, the Defendants appealed the Trial Judgment by filing three notices of appeal that were not consolidated. The Defendants missed the January 11, 2023 deadline for perfecting the appeals. Thereafter, the Court of Appeal administratively dismissed the appeals in relation to the Caroti/Bilich Action on February 16, 2023 before similarly dismissing the appeal in the Pichelli Action on April 20, 2023. On September 5, 2023, Coroza J.A. dismissed a motion for the dismissal orders to be set aside.

[14] From June 18 to 20, 2024, I heard the Distribution Motion to determine the distribution of funds paid into court for the actions. The fact that the Pichelli Group did not have judgment against Ms. Vuletic, and the matter of the division of her assets, were raised and addressed on the motion.

[15] On December 6, 2024, I released my decision for the Distribution Motion. In my reasons for decision, I found that the amounts awarded at trial, "should be paid out on a proportional or pro rata basis amongst the Trial Parties, subject to the Pichelli Group not collecting on the assets of the Defendant Mira Vuletic as they did not sue her" [emphasis added]: Caroti v Vuletic, 2024 ONSC 6776 at para 140.

[16] On February 24, 2025, the Pichelli Group brought an appeal from the Distribution Motion decision. Among other things, the appeal seeks to vary the decision to allow the Pichelli Group to collect and execute judgment on Ms. Vuletic's assets.

Legal Principles

[17] It is well-established that a court is functus officio and without jurisdiction to amend a judgment once entered except in very limited circumstances, such as where a statutory basis is available for doing so, where it is necessary to correct an error in expressing its manifest intention, or where a matter has not been heard or decided on its merits: Canadian Broadcasting Corp. v Manitoba, 2021 SCC 33 at para 33; Chandler v Alberta Association of Architects, [1989] 2 SCR 848 at 860-861; Massiah v Justices of the Peace Review Council, 2018 ONSC 2179 (Div Ct) at para 10, leave to appeal to ONCA refused, M49133 (October 19, 2018), leave to appeal refused, [2018] SCCA No 528. As a general rule, a final decision of a court that is susceptible of appeal cannot be reconsidered by the court that rendered the decision: Manitoba at para 33; Chandler at 860; Reekie v. Messervey, [1990] 1 SCR 219 at 222‑23; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at paras 77-79; R v Smithen‑Davis, 2020 ONCA 759 at paras 33-34.

[18] Rule 59.06 (Amending, Setting Aside or Varying Order) of the Rules of Civil Procedure, RRO 1990, Reg 194, gives the following authority for the court to vary an order:

Amending

59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

Setting Aside or Varying

(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[19] The authority under r. 59.06(1), colloquially known as the "slip rule", permits the court to correct an order that contains an accidental error or omits a ruling on a point that was raised but not adjudicated: Massiah at para 10; Bokhari v FSD Pharma Inc., 2025 ONCA 282 at para 11. In addition, r. 59.06(2)(a) permits the court to correct an order for fraud perpetrated in obtaining the order, or to amend, set aside or vary an order on account of facts that arose or were discovered after the order was obtained: Royal Bank of Canada v Korman, 2010 ONCA 63 at paras 20-21; Zarei v Islamic Republic of Iran, 2022 ONSC 2076 at para 36. That said, r. 59.06 does not confer an opportunity for a party to raise new grounds or arguments that it previously chose not to pursue: Massiah at para 11. Parties are to present the entirety of their case and not litigate by instalment.

[20] Given the importance of finality in litigation, r. 59.06 should only be used sparingly, in exceptional circumstances, and with the greatest of care: Zarei at para 31; Hordo v Zweig, 2021 ONSC 1116 at paras 128-129; Massiah at para 7; Peoples Trust Company v Atas, 2018 ONSC 58 at paras 14-15, 19; Berge v College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351 (Div Ct) at para 34.

Analysis

[21] In my view, the various amendments to the judgments and reasons sought on this motion should not be granted.

[22] The Trial Judgment and Costs Judgment were formally issued, were susceptible of appeal, and were appealed. Applying the functus officio doctrine in this context, I accept that the court cannot, as a general rule, reconsider these final judgments at this time: Manitoba at para 33.[7]

[23] Appellate jurisprudence further suggests that a trial judge is functus officio to amend a trial judgment after a concluded appeal: Lantin v. Seven Oaks General Hospital, 2019 MBCA 115 at paras 30-35.[8] In my view, this guidance applies to this case to the extent that it respects the principle of finality and avoids post-appeal changes to decisions that may impact the res judicata between the parties: Lantin at para 30-32.

[24] I am satisfied that r. 59.06(1) has no application in this case. Judgment was intentionally not granted to the Pichelli Group against Ms. Vuletic because they did not name her as a party to the Pichelli Action. The Trial Judgment for the Pichelli Action was granted as intended and did not reflect an accidental slip, omission, or error in expressing the court's manifest intention: Lantin at paras 22 and 24-25; Donner v. Donner, 2021 NSCA 30 at para 34. Similarly, the Costs Judgment for the Pichelli Action did not award costs from Ms. Vuletic as the group did not sue her.

[25] The Pichelli Group did not establish grounds under r. 59.06(2)(a) for bringing this motion for rectification. They did not show that fraud was perpetrated to obtain the judgments, or show any post-decision facts to trigger the very strict grounds for invoking r. 59.06(2)(a): Korman at paras 20-21; Berge at para 34.

[26] The Pichelli Group cited no authority for the proposition that r. 59.06 can be used to add a new defendant to a trial judgment on a post-trial motion. This is unsurprising as it is clear from the jurisprudence that a party cannot use r. 59.06 to pursue a new cause of action or relief that was never raised in their pleadings. As Rouleau JA explained in Korman at para 24:

[Rule 59.06] does not contemplate altering a judgment or order to provide for relief never sought in the moving party's pleading. In order to come within the rule, the motion must be one brought "in the proceeding". As a general rule, pleadings lay out the four corners of the dispute and parties are bound by their pleadings: See Kalkinis (Litigation Guardian of) v. Allstate Insurance Co. of Canada (1998), 41 O.R. (3d) 528 (C.A.); leave to appeal refused, [1999] SCCA No. 253 (S.C.C.). The proceeding continues to be defined by the pleadings even after judgment is obtained. For the motion to be "in the proceeding", therefore, it must be a motion that, even before judgment, was available to the moving party to bring. In this case, even on a generous reading, a motion for judgment declaring the sums to be owing in fraud could not have been brought or succeeded before judgment based on the pleadings as they stand. Rather, the respondent's pleading would have to have been amended to request such relief. [Emphasis added]

[27] Given the reasoning in Korman, it follows that r. 59.06 cannot be used to add a new party to a judgment on a post-trial motion for relief that was never pleaded: see also Zarei at para 34. Based on this, I find that the Pichelli Group cannot amend the Trial Judgment or Costs Judgment by moving to add Ms. Vuletic as a party to their action in order to recover damages and costs from her at this time. None of this relief was ever claimed against her in their pleading that continues to define the dispute in their action, even after judgment was granted: Korman at paras 23-24.

[28] I am not persuaded that my reasons for deciding the Distribution Motion should be altered or varied at this time. The parties to the motion did not refer to any authority for making subsequent amendments to reasons for decision, as opposed to a judgment or order. Rule 59.06 does not deal with reasons but with orders and judgments of the court: Susin v. Eugene Goodreau and Goodreau Excavating Ltd., 2008 ONCA 165 at para 8. I accept that some corrections to reasons ought not to engage r. 59.06, such as typographical corrections, if they simply clarify reasons for the reader without impacting an order or judgment: The Canada Life Assurance Company v Aphria Inc., 2024 ONSC 5901 at para 21. In any event, the Pichelli Group claims an alleged error in my reasons for the Distribution Motion due to a purported de facto consolidation or joinder of the Pichelli Action with the Caroti Action (i.e., in which Ms. Vuletic is a defendant) as both actions were jointly case managed and tried together, albeit as discrete actions that each kept their own title of proceedings, distinct parties, and separate court file numbers. By conflating all of this, the Pichelli Group submits that Ms. Vuletic can be construed as a defendant in both actions and thus liable to them in tort for civil conspiracy, fraud, deceit, and fraudulent misrepresentation, even though they never pleaded any of this against her. No authority for this proposition was given.

[29] There are several problems with the Pichelli Group's position. The Pichelli Action was never consolidated or "joined" with the Caroti Action. In the circumstances, I can see no principled basis to support the notion that Ms. Vuletic somehow became a defendant in the Pichelli Action. The Pichelli Group never sued her (i.e., as confirmed during discoveries) or otherwise articulated any discernable cause of action against her in their pleading that continued post-judgment to define the proceeding in the Pichelli Action: Korman at para 24. Even on the most generous reading of the Pichelli Group's pleading as it stands, they cannot obtain judgment against her because they never sued her. To position themselves to obtain judgment against her, they had to previously amend their pleading to add her as a party and claim relief against her while their action was extant: Ibid. They did not do this and, therefore, cannot obtain judgment against her.

[30] The Pichelli Group further submits that its motion to amend the judgments and decision is not precluded by the fact that Ms. Vuletic was not named as a defendant in their action because of my trial findings (i.e., to decide the Caroti Group's claims against her) that she is liable with John and Anthony Vuletic in unlawful conduct conspiracy: Caroti v Vuletic, 2022 ONSC 4695 at paras 583-588. No authority for this position was offered. Respectfully, I am not persuaded by this submission. I am unable to find any grounds to support the position that the trial decision in respect of the unlawful conduct conspiracy somehow creates an exception to the principle that a non-party cannot be liable on a post-trial judgment motion for relief never pleaded: Korman at para 24. The Pichelli Action and the Caroti/Bilich Action were jointly tried and decided as separate and unconsolidated proceedings, with each having their own distinct parties. In my view, the decision that the Pichelli Group made before trial to not add Ms. Vuletic as a party to the Pichelli Action is fatal to their current post-trial motion to seek and collect judgment against her.

[31] I am satisfied that the slip rule under r. 59.06(1) does not apply to my reasons for decision on the Distribution Motion. The decision did not grant relief against Ms. Vuletic to the Pichelli Group as she was not a party to their action, and the reasons for decision have no inadvertent slips or omissions in expressing the court's manifest intention: Manitoba at para 33. In addition, I find no basis to rectify the Distribution Motion decision or reasons under r. 59.06(2)(a) based on any post-decision facts: Korman at paras 20-21; Berge at para 34.

[32] In my view, the principle of finality should govern the outcome of this motion. Parties are expected to plead all relevant claims, join all defendants against whom they are seeking relief, and present all arguments and claims as a routine part of the civil litigation process. In this case, the Pichelli Group was represented by experienced counsel, had ample opportunity to add Ms. Vuletic as a party to their action before trial after conferencing the issue, chose to not add her as a party, clearly confirmed in discoveries that they were not suing her, and succeeded at trial in obtaining sizeable awards in the Trial Judgment and Costs Judgment that were not varied on appeal. The Distribution Motion decision and reasons align with the respective judgments from the trial. In addition, the Pichelli Group's post-trial motion for judgment against Ms. Vuletic may arguably raise limitations issues, as the Responding Parties alluded to, although this limitations matter was not fully argued on the motion.

[33] Based on the foregoing, I am satisfied that the Pichelli Group should not be allowed to raise new claims against Ms. Vuletic that were not raised before, or otherwise revisit claims that they previously chose to not pursue against her: Massiah at paras 10-11.

Outcome

[34] Accordingly, the motion is dismissed.

[35] Should the parties not resolve the matter of costs for the motion, I may be spoken to.

Date: August 21, 2025

M.T. Doi J.

Footnotes

[1] The decision for the Distribution Motion is reported at Caroti v Vuletic, 2024 ONSC 6776.

[2] I found that the Responding Parties had standing to appear and respond to the motion given the potential impact of the rectification motion on their interests in this case. An amendment of the Trial Judgment, Costs Judgment, and Distribution Motion decision as proposed by the Pichelli Group could well impact the rights and interests of the Responding Parties (i.e., who settled their claims before trial like the other Settling Parties) and the other Trial Parties, as Ms. Vuletic's unsecured assets that are not subject to a constructive trust (n.b., although about $180,000.00 of the so-called "Dorham funds" are subject to a constructive trust) are to be divided between the parties with judgement against her, that include the Responding Parties (n.b., the Dorham funds are described in the Distribution Motion decision: see Caroti v Vuletic, 2024 ONSC 6776 at para 75).

[3] The Caroti Group (as described below), Ms. Bilich, Anton Granic and Katarina Granic appeared and took no position on the rectification motion. Mike Klecina (i.e., in his capacity as Estate Trustee for the Estate of Boris Klecina) and Frank Samardzic were duly served but did not appear. The Defendants (as described below) have absented themselves from the litigation over an extended period and did not appear on the rectification motion. The materials for the motion were served on the Defendants by email to Anthony Vuletic's email address. A motion to validate service was not formally brought. However, I accept that the motion materials came to their attention, or would have come to their attention, as the Vuletics are close family members who ran the corporate Defendants as closely-held companies, previously resided together, are believed to be abroad and likely still residing together, and jointly dealt with the litigation by using Anthony Vuletic's email address (i.e., that is now the last and only known method for contacting them). In the circumstances, I found that service of the motion materials on Ms. Vuletic and the other Defendants to Anthony Vuletic's email address should be validated nunc pro tunc: r. 1.04(1)-(1.1), 16.08(a)-(b).

[4] Anna Bilich is a former investor in the project who brought and defended a crossclaim at trial in the Caroti/Bilich Action.

[5] Mira Vuletic is named as a defendant only in the Caroti/Bilich Action (CV-17-5302).

[6] The term "order" includes a judgment; r. 1.03.

[7] In their factum for the Distribution Motion heard on June 18 to 20, 2024, the Pichelli Group argued (at paras 30-31), correctly in my view, that the court was functus officio and, therefore, could not rectify or amend the Trial Judgment at that time: the relevant excerpt of the factum is reproduced at Case Center B-1-160 to 161.

[8] In Lantin, the trial judge invoked the slip rule to amend a damages award, after it was rendered, by adding a previously unmentioned aspect of non-pecuniary damages that the plaintiff raised in a post-decision submission. However, the slip rule was invoked only after the Court of Appeal of Manitoba entered judgment in relation to an appeal of the trial judge's original decision. On the second appeal of the trial decision that invoked the slip rule, the Court of Appeal held that the trial judge lost jurisdiction to apply the slip rule once the appellate court exercised its jurisdiction on the first appeal by substituting the trial decision with its own judgment: Lantin at paras 27, 30-32, and 34. The circumstances in Lantin may be distinguished from those in the within case, as the Court of Appeal for Ontario administratively dismissed the appeals by the Defendants for procedural delay, dismissed a motion to set aside the administrative dismissals, and did not hear or decide the appeals on their substantive merits. It follows that the basis for the Court of Appeal of Manitoba's finding in Lantin (i.e., that a trial court loses jurisdiction to apply the slip rule to amend a decision following an appeal from that decision) did not arise in the appeal for the within case, thereby making the ratio in Lantin arguably distinguishable in this matter.