Court of Appeal for Ontario

Citation: O'Laughlin v. Byers, 2015 ONCA 210
Date: 2015-03-30
Docket: C59475

Before: Sharpe, Pepall and van Rensburg JJ.A.

Between:

Donna O’Laughlin
Plaintiff (Respondent)

and

Timothy John Byers, 1566997 Ontario Inc. and Kelly Ann Jamieson
Defendants (Appellants)

Counsel:
Robert Isles, for the appellants
Peter C. Card, for the respondent

Heard and released orally: March 25, 2015

On appeal from the judgment of Justice Guy P. DiTomaso of the Superior Court of Justice, dated November 3, 2014.

Endorsement

[1] This is an appeal of a summary judgment. The appellants contend that the motion judge erred in granting judgment after concluding that there was no issue requiring a trial. We disagree.

[2] The respondent provided evidence of a loan, an amortization schedule prepared by the appellants’ lawyer and a list account of payments received and demands made. The appellants admitted to the loan and the various payments made by cheque, but contended that additional payments were made by cash and cheque.

[3] The motion judge carefully analyzed the payments the respondent acknowledged having received and the payments the appellants contended were made, and found the appellants’ evidence was inadequate. The evidence included substantial payments not required by the amortization schedule, and the additional payments were unsupported by any receipts.

[4] The appellants assert that the motion judge erred in failing to consider evidence of the respondent’s income tax returns. We are not persuaded that this was overlooked or that it would have made any difference to the result. Nor do we agree that the motion judge failed to consider the fact that the respondent dealt with certain financial aspects of the appellant Byers’ businesses. This fact was evident on the record but could not have been determinative of the issues.

[5] In the end the appellants failed to put their best foot forward on the question of the payments they assert were made on the mortgage.

[6] The appeal is accordingly dismissed. Costs to the respondent fixed at $12,000, inclusive of disbursements and taxes.

“Robert J. Sharpe J.A.”
“S.E. Pepall J.A.”
“K. van Rensburg J.A.”