Yan David Payne

The Receiver brought a motion under the Bankruptcy and Insolvency Act to recover payments made by the insolvent debtor company to various parties, primarily family members and a former employee, in the year prior to bankruptcy.

The court found that the company was insolvent during the relevant period.

Payments to several family members and a non-arm's length salesperson were ordered to be repaid as they were found to be either transfers at undervalue or preferential payments.

Claims against a landlord, an independent contractor, and a long-time manager were dismissed as the transactions were either supported by consideration or were arm's length.

The plaintiff brought a motion for default judgment against the defendants for failure to pay under a registered mortgage.

The defendants were noted in default and did not respond to the motion.

The court found that the deemed admissions in the statement of claim, supported by affidavit evidence, established liability.

The court granted default judgment, awarding the plaintiff $678,863.71 in damages, pre- and post-judgment interest at the contractual rate of 3.7%, vacant possession of the property, and $6,000 in costs.

On competing motions in a legal malpractice action, the court refused to strike the defendants’ summary judgment motion in its entirety and narrowed the issues suitable for summary adjudication.

The court held that standard of care and certain causation and damages issues could proceed summarily, while broader causation questions tied to unjoined parties would require a trial-within-a-trial analysis.

The court also ruled extensively on evidentiary admissibility, striking specific affidavit paragraphs, exhibits, and will-state statements while allowing other hearsay-limited material for non-truth purposes related to knowledge and retainer scope.

The matter was directed to continue with a focused summary judgment record and a subsequent case management conference.

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 grandmother appealed a trial judgment ordering the partition and sale of a property she co-owned with the respondent grandson.

The trial judge found the respondent held a 10.17% interest based on his contributions to the purchase and carrying costs, rejecting the appellant's claim of a resulting or constructive trust.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or his decision to order a sale under the Partition Act.

This costs endorsement followed a trial where the plaintiffs, Wayne and Diane Mason, were largely successful in establishing an unpaid purchase price and a vendor's lien against property, despite failing on punitive damages.

The court assessed costs based on offers to settle, parties' conduct, and success at trial, guided by principles of fairness, proportionality, and reasonableness.

The Masons were awarded their costs as sought.

Bluechip Services Inc. recovered costs on a partial indemnity basis.

Robina Khan McCracken and Jozef Zubrzycki were denied costs due to their unreasonable positions and lack of success, which hindered resolution.

The decision details the distribution of funds held in court, including trial awards, interest, and costs.

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, James Rausch, sued the City of Pickering for damages arising from alleged trespass, abuse of process, malicious prosecution, and negligence related to the enforcement of by-laws concerning her wild boar farming operation.

The court dismissed the claims for trespass due to de minimis damages, and abuse of process and malicious prosecution for lack of improper purpose and causation.

While the City was found negligent for failing to train its by-law officers on the Farming and Food Production Act, the plaintiff's claim for damages for loss of animals and business revenue was dismissed because her actions in killing the wild boars were deemed unreasonable and she failed to adequately prove the quantum of damages.

The respondent in a human rights application requested an order permitting it to access, use, and disclose the applicant's occupational health and claims management file before filing its response, as well as a 35-day extension of time to file the response.

The applicant consented to the document access but argued the extension should be limited to 14 days.

The Tribunal found exceptional circumstances justified early production of the medical file to allow the respondent to meaningfully respond.

The Tribunal granted the document access and ordered the respondent to file its response within 21 days.

The appellant employer appealed a trial judgment finding that it had wrongfully terminated the respondent's employment when she refused to agree to significant unilateral changes to her employment terms.

The Court of Appeal upheld the trial judge's finding of fact and rejected the appellant's argument that the respondent failed to mitigate her damages, noting the appellant had removed that option by terminating her.

The Court also upheld the trial judge's calculation of damages and the valuation of a 15 percent ownership interest.

The appeal was dismissed with costs awarded to the respondent.