Yan David Payne

The appellant condominium owner appealed a summary judgment ordering it to pay $495,888.39 in common expense arrears and granting vacant possession to the respondent condominium corporation.

The Court of Appeal upheld the motion judge's use of enhanced fact-finding powers to resolve credibility issues and reject the appellant's claim of having paid in cash.

The Court also declined to entertain a new limitations defence raised for the first time on appeal.

However, the Court allowed the appeal in part, finding the motion judge erred by using the oppression remedy to expand the respondent's registered condominium lien to cover unsecured arrears, as doing so could prejudice third-party creditors.

This endorsement arises from a case management conference concerning the defendants' summary judgment motion.

The court addressed disagreements between the parties regarding the timetable and the filing of evidence, particularly concerning examinations of non-party witnesses under Rule 39.03.

The judge clarified the purpose of the pre-motion conference and ruled on the admissibility of additional evidence post-conference and after Rule 39.03 examinations, adopting the reasoning from Martin v. Kiewit Alarie A Partnership.

A detailed timetable for the motion was ordered.

The defendants brought a motion to strike the plaintiff's 2,250-page affidavit, filed in response to a summary judgment motion, arguing it contained inadmissible hearsay and irrelevant evidence.

The court granted the defendants' request, striking the affidavit in its entirety with leave for the plaintiff to file a fresh affidavit.

The decision emphasized that the affidavit was prejudicial to a fair hearing and an abuse of process due to its voluminous and inadmissible content, providing specific directions on evidentiary requirements for summary judgment motions.

The plaintiff's action for breach of a research agreement was dismissed at trial, and the defendant university's counterclaim was allowed.

The defendant sought its costs of the proceeding on a substantial indemnity basis, arguing that the plaintiff made unfounded allegations of fraud and deceit against the university and its personnel.

The court agreed, finding that the plaintiff's principal directed the litigation and used the court process to advance baseless and egregious allegations, constituting an abuse of process.

The court awarded the defendant $640,589.62 in substantial indemnity costs and held the plaintiff's principal personally liable for $150,000 of that amount as a non-party.

The plaintiff, Ontario, brought a motion for leave to amend its statement of claim to increase damages, provide further particulars of alleged kickback schemes, and add additional defendants in a civil fraud action.

The defendants and proposed added defendants opposed the motion, arguing the proposed amendments lacked particularity, used vague 'and/or' formulations, and failed to meet the minimum level of material fact disclosure.

The court agreed that several proposed paragraphs were deficient as they did not clearly identify which allegations were made against which specific defendants.

The motion was dismissed, but the plaintiff was granted leave to renew its motion with a properly drafted amended pleading.

The plaintiff law firm brought a motion for summary judgment against its former clients for unpaid legal fees, suing on three post-dated cheques under the Bills of Exchange Act after the clients stopped payment.

The clients brought a cross-motion for summary judgment to dismiss the claim and direct an assessment of the accounts under the Solicitors Act, alleging they signed the agreement to pay under duress to obtain their files.

The court dismissed both motions, finding that significant credibility issues regarding the circumstances of the agreement and the delivery of accounts required a full trial, and that it was inappropriate to use enhanced fact-finding powers in a simplified procedure action.

The appellant appealed the dismissal of his professional negligence action against a lawyer and an accounting firm on summary judgment.

The appellant had sold his software company to Microsoft in 1999 and received approximately $4.8 million through a family trust.

The Canada Revenue Agency reassessed him for approximately $2.4 million in taxes, interest and penalties, claiming section 75(2) of the Income Tax Act applied.

The appellant obtained rectification orders and ultimately had his tax liability reduced to approximately $57,000 after the Federal Court of Appeal ruled that section 75(2) did not apply.

The appellant claimed damages from the respondents for professional negligence, alleging they failed to advise him of the CRA's position and the likely expenses of disputing it.

The motion judge dismissed the claim against the lawyer for lack of evidence of retainer regarding the trust, and dismissed the claim against the accounting firm for failure to provide expert evidence establishing a breach of the standard of care.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's application of the expert evidence requirement for professional negligence claims.

The Court of Appeal for Ontario issued a costs endorsement following its dismissal of a motion by a law firm seeking a charging order or lien against damages and costs awarded to its client.

The law firm sought no costs or alternatively $2,500, arguing the issue was novel and of public importance.

The respondent sought substantial indemnity costs of $25,214.42, arguing the motion lacked merit and was an attempt to burden him with additional costs.

The court awarded costs to the respondent on a partial indemnity basis, rejecting the law firm's arguments and refusing to permit set-off against legal fees owed by the respondent.

The law firm sought reconsideration of the court's decision on its motion for a charging order or solicitor's lien.

The court denied the request for reconsideration, noting that the law firm had already addressed the merits of obtaining a charging order in its written submissions and that the test for a charging order and solicitor's lien is the same.

A law firm sought a charging order or solicitor's lien on funds awarded to its client in a successful civil action.

The client had recovered $390,000 in damages and $550,000 in costs at trial, with an additional $50,000 in costs awarded on appeal.

The law firm claimed $360,836.88 in unpaid fees and sought to secure this amount through either a charging order under the Solicitors Act or a lien under the court's inherent jurisdiction.

The client contested the amount owed and initiated an assessment process.

The Court of Appeal dismissed the motion, finding that while it had jurisdiction to grant such relief, the law firm failed to establish that the client was unable or unwilling to pay.

A provincial offences appeal concerning the destruction of a boundary tree without the consent of the co-owner.

The appellant, a homeowner, obtained a municipal permit to remove a Norway maple tree on the property line between his residence and his neighbors' property, claiming it was hazardous.

He removed the tree without obtaining the neighbors' consent.

The trial justice found him guilty of violating section 10(3) of the Forestry Act.

On appeal, the appellant argued that the Forestry Act did not apply to joint owners of boundary trees and that he had a self-help remedy to abate a nuisance.

The appellate court upheld the conviction, finding that the appellant's conduct was manifestly unreasonable, particularly given the three-and-a-half-year delay between obtaining the permit and removing the tree, and his failure to seek consent or court authorization.

A solicitor firm moved for a charging order under section 34(1) of the Solicitors Act to secure approximately $360,000 in outstanding fees and disbursements incurred in both trial and appeal proceedings.

The client had initiated assessment proceedings against the solicitor.

The motion judge expressed uncertainty regarding the Court of Appeal's jurisdiction to grant such charging orders, particularly regarding fees incurred in the Superior Court of Justice versus those incurred on appeal.

Finding the jurisdictional question to be significant and best determined by a panel, the motion was adjourned to a full panel of the Court of Appeal.

The plaintiff brought an action alleging negligence against accountants and a lawyer arising from tax planning involving a family trust created to facilitate the sale of shares in a technology company.

The defendants moved for summary judgment, arguing the claims were barred by limitation periods, unsupported by expert evidence, or defeated by illegality relating to the alleged backdating of the trust.

The court held that the record revealed numerous disputed factual issues, including the scope of the defendants’ retainers, the timing and legality of the trust’s creation, and the plaintiff’s knowledge of potential tax problems.

Applying the full appreciation test from Combined Air Mechanical Services Inc. v. Flesch, the court concluded that the evidentiary conflicts required the full forensic process of a trial.

Both summary judgment motions were dismissed with costs in the cause.

Following a civil proceeding, the court addressed costs on consent of the parties.

The successful party was awarded a lump sum for costs inclusive of fees and disbursements.

The court also ordered prejudgment interest on two damages components beginning on specified dates at the statutory rate.

Post‑judgment interest was ordered on the full judgment amount.

The endorsement formalized the agreed financial consequences of the judgment.

The plaintiff brought an action for wrongful dismissal against her former employer.

The employer unilaterally altered the plaintiff's job description from office manager to accountant and revoked her ability to attend bonus trips and partnership meetings.

The plaintiff rejected the new terms, and the employer subsequently terminated her.

The court found that the plaintiff did not resign and that the employer did not have just cause for dismissal.

The court held that the employer repudiated the employment contract by unilaterally changing fundamental terms.

The plaintiff was awarded $256,902.93 in damages, representing the balance of her salary under a five-year contract and the value of a 15% ownership interest promised in the contract.