Richard J. Payne

The plaintiff sought damages for losses arising from the defendant’s failure to complete a real estate purchase.

The court found the plaintiff acted reasonably in re-listing and selling the property after the defendant’s breach, rejected the defence of failure to mitigate, and awarded damages and costs to the plaintiff.

The court also addressed the admissibility of evidence from the plaintiff’s real estate agent as a participant expert.

The moving parties brought a motion for leave to appeal an unreported decision of Parghi J. dated July 5, 2024.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay costs of $2,500 to the responding party.

The tenants appealed a Landlord and Tenant Board order terminating their tenancy for rent arrears, which they had subsequently voided by paying the required amount.

The tenants argued the Board erred in calculating the arrears and failing to account for previous costs awards owed by the landlord.

The Divisional Court dismissed the appeal, finding that the tenants' arguments raised factual issues rather than questions of law, which are required for an appeal under section 210 of the Residential Tenancies Act.

The appellant requested an adjournment of the appeal.

The Divisional Court granted the adjournment to an in-person hearing on March 1, 2023, making the date peremptory on the appellant, with or without counsel.

Costs of the day were reserved to the panel hearing the appeal.

The plaintiff brought an action against his brother's former wife, claiming she held his interest in a property in trust.

The property had been sold and the proceeds disbursed pursuant to family law proceedings between the brother and his former wife.

The plaintiff argued for an express, constructive, or resulting trust.

The court dismissed the action, finding insufficient evidence of an express trust, no equitable obligation or unjust enrichment to support a constructive trust, and that the presumption of resulting trust did not apply.

The plaintiff brought an urgent motion for an interim and interlocutory Mareva injunction against the defendants, alleging fraud related to a $1.8 million loan.

The plaintiff claimed fraudulent misrepresentation regarding property ownership and the defendants' failure to record mortgages, which allowed subsequent encumbrances.

The court found a strong prima facie case of fraud but was not satisfied that there was a real risk of asset dissipation or irreparable harm, particularly as the pending sale of a property was deemed a bona fide transaction.

The motion for an interim Mareva injunction was dismissed, but the defendants were ordered to provide disclosure of payout statements and writ of seizure and sale details for the property sale.

The plaintiff brought a motion for judgment based on a consent to judgment signed by the defendants as part of a settlement agreement regarding a defaulted loan secured by Florida real estate.

The defendants argued that one corporate defendant should not be a party, that they lacked independent Canadian legal advice, and that the debt was satisfied by a foreclosure.

The court found that the non-signing corporate defendant should not be subject to the judgment, but rejected the other defenses, noting the defendants had US legal advice and the settlement agreement explicitly valued the foreclosed property at a set credit amount.

Judgment was granted against the signing defendants for the remaining balance, converted to Canadian dollars.

The defendants appealed a Small Claims Court decision finding them jointly and severally liable for a $25,000 deposit paid by the plaintiff for equipment that was never delivered.

The defendants argued they were denied procedural fairness when the trial judge excluded documents due to non-compliance with a production order, and that they were acting as agents for a corporation.

The Divisional Court dismissed the appeal, finding no procedural unfairness and upholding the trial judge's conclusion that the defendants were personally liable as parties to the contract, given the deliberate obfuscation of corporate identities and the non-existence of the purported corporate entity.

The applicant brought a motion for contempt against the respondent for failing to comply with a previous court order.

The parties settled the motion on the morning of the hearing.

The self-represented applicant sought costs of $42,994.75 on a full indemnity basis.

The court balanced the respondent's deliberate flouting of the order against the crushing burden of existing costs orders and the late settlement, fixing costs at $15,000 inclusive.

The appellant appealed a trial judgment which found that an agreement between the parties was conditional on the respondents receiving funding from another project.

The Court of Appeal upheld the trial judge's finding that the release was not an acknowledgment of debt, but rather an agreement to pay a ceiling amount to limit liability if future funding was received.

The appeal was dismissed.

The landlord appealed a Small Claims Court judgment that dismissed its claim for unpaid rent and awarded the tenants $10,000 in damages for the landlord's unreasonable refusal to consent to an assignment of the lease.

The landlord argued the trial judge exceeded the monetary jurisdiction of the Small Claims Court by effectively granting a set-off of $10,000 against the rent claim plus a $10,000 judgment.

The Divisional Court dismissed the appeal, finding the trial judge correctly concluded that the landlord's breach terminated the right to rent after May and separately gave rise to a cause of action for damages.