COURT OF APPEAL FOR ONTARIO
CITATION: Capone v. Fotak, 2023 ONCA 212
DATE: 20230329
DOCKET: M54097 (COA-22-CV-0079)
van Rensburg, Huscroft and George JJ.A.
BETWEEN
Carmela Maria Capone
Applicant
(Respondent/Moving Party)
and
Zoran Fotak
Respondent
(Appellant/Responding Party)
Harold Niman and Mark DeGroot, for the moving party
Zoran Fotak, acting in person
Heard: March 20, 2023
On appeal from the order of Justice Sharon Shore of the Superior Court of Justice, dated August 26, 2022.
REASONS FOR DECISION
[1] This is a motion to quash an appeal from the trial judge’s order that Mr. Fotak pay $30,601.53 in costs to Ms. Capone. The costs award was on a full indemnity basis, reflecting the trial judge’s finding that Mr. Fotak had acted unreasonably and in bad faith.
[2] As this is an appeal solely from a costs order, leave to appeal is required pursuant to s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Mr. Fotak has not sought leave. Accordingly, the appeal is not properly before the court. The appeal is quashed.
[3] Mr. Fotak was required by this court to post security for costs of $35,000 for a previous appeal to this court, which was dismissed on May 31, 2022. Ms. Capone was awarded costs of $15,000 on that appeal. Mr. Fotak accepts that Ms. Capone is entitled to be paid $15,000 from the security held by the court, in addition to $800 in costs that were awarded to her following the Supreme Court’s decision dismissing Mr. Fotak’s application for leave to appeal.
[4] Ms. Capone shall be paid $15,800 forthwith in addition to the costs of this motion, which we fix at $10,000, all inclusive. Both sums shall be paid from the security held by the court.
[5] The residual funds, $9,200, shall be returned to Mr. Fotak.
“K. van Rensburg J.A.”
“Grant Huscroft J.A.”
“J. George J.A.”