Reported Cases

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NOTABLE REPORTED CASES AND NEWS UPDATES

Weenen v. Biadi, 2018 ONCA 288

2018: Ontario Court of Appeal panel accepts Mr. Payne’s arguments and sides with firm representing client in fee dispute with Fasken’s.  Fasken’s attempt to exercise $360,000.00 solicitor’s lien against its former client dismissed.  See Ontario Court of Appeal decision: Judgment of the Panel of the Ontario Court of Appeal.  See also article on Mr. Payne’s win published in The Lawyer’s Daily: Court of Appeal dismisses Fasken’s motion for charging order against client – The Lawyer’s Daily – PDF

 

State Farm Fire and Casualty Company and Graziano Biadi v. M.W., Superior Court File No. 624-18

2018: Mr. Payne successfully enforces $1,093,613.30 Judgment on eve of sheriff’s sale of Defendant’s property.  Defendant’s insurer, State Farm, fails in attempt to bring ‘urgent’ application in Superior Court to stay the sheriff’s sale.  Superior Court of Justice dismisses State Farm’s application and awards costs in favour of firm client, leading to full enforcement and collection of outstanding Judgment, Costs, and interest.  See: Order for Dismissal and Endorsement (redacted)

 

Osama Eissa v. Konstantinos Kazinakis, Superior Court File No. CV-18-598085-00CL

2018 – Lawyer Karen J. Sanchez secures early Court Order freezing assets of Defendants prior to claim being served.  See attached Order of Justice McEwen reaffirming and expanding scope of Order shortly after Statement of Claim served on Defendants: Order- Justice McEwen -ENTERED – June 5.18

 

K.T. v. P.B., Superior Court File No. CV-14-507723, 2018 ONSC 96

2018: Firm litigator Hashim Syed secures Judgment and costs totaling $126,027.83 against Defendant for blowing engine in borrowed BMW.  Trial leads to victory for firm client.  See:  Judgment of Justice Pollak – May 22, 2018 as well as “disproportionate” cost award granted due to Defendant’s conduct: Disproportionate Cost Award – KT v. PB

 

Lourenco v. Turner, 2018 ONSC 3252

September 2018: Lawyer Hashim Syed successfully argues against Defendant’s attempted summary judgment motion and obtains separate $38,000.00 Cost Judgment as a result of former employer’s “wholly unsuccessful” motion.  See reported decision: Lourenco v. Turner, 2018 ONSC 3252.  See attached Cost Endorsement for $38,000.00: Endorsement from Justice Carole Brown dated Sept 21.18.

 

Jovkovic v. Silverio Manuel DaSilva a.k.a Manny DaSilva, Court File No. 35-2314079

2018 – Firm litigators Hashim Syed and Karen J. Sanchez obtain leave to continue civil action in fraud despite Defendants’ bankruptcy filing.  Firm entitled to pursue claim for damages: Order from bankruptcy court in London – June 6.18

 

R. v. M.S., Court File No. 1211 998 16 361300

September 19, 2017 – Firm litigator Yan David Payne secures Court Order for withdrawal of all (20) tax evasion charges against accountant.  Crown also consents to return all records seized under warrant.  Matter fully resolved in client’s favour.  See: Order Withdrawing All Charges and For Return of All Items Seized – September 19, 2017

R. D. v. Surface Excavation Inc. 2017 ONSC 5808

September 29, 2017 – Firm litigator Hashim Syed obtains Cost Judgement against client’s former lawyer’s use of improper procedures.  See Exceptional Order for Costs to Be Paid By Previous Lawyer – Sep.29.17

[August 2016] – K.K. v. Her Majesty the Queen, Court File No. 2013-3200(IT)G

August 12, 2016 – Canada Revenue Agency (represented by the Department of Justice) consents to Tax Court Judgement fully vacating tax re-assessments for tax years 2000, 2001, 2002, 2003, and 2004 based on alleged $1,629,089.00 unreported business income.  Matter ultimately resolved without need for formal hearing.  See Tax Court Judgement – KK v. HMQ – Aug.12.16.

[August 2016] E.K. v. Her Majesty the Queen, Court File No. 2013-2761(IT)G

August 12, 2016 – Bulk of Director’s Liability assessment ($328,247.69 at issue) vacated as a result of Canada Revenue Agency (represented by the Department of Justice) consenting to formal Tax Court Judgement.  Matter ultimately resolved without need for formal hearing.  See Tax Court Judgement – EK v. HMQ – Aug.12.16.

[August 24, 2016] Ramos v. Can-Med Pharma Inc., 2016 ONSC 5363

August 24, 2016 – Litigator Hashim Syed obtains Court Order dismissing Application brought against Ontario Corporation by out-of-country Applicant.  Firm had obtained an earlier Order directing the Applicant to post security for costs.  Superior Court Judge dismisses Application following failure of Applicant to post security for costs, as required by Court Order.  While the dispute was over intellectual property rights, the case highlights pitfalls of out-of-country litigants initiating litigation against Ontarians, without complying with legal and financial obligations.  Early dismissal avoids hearing on merits, saving time and expense.  See: Order of Justice Goldstein – Aug.24.16

Crew et al. v. Rouge Valley Co-op

Decision of Human Rights Tribunal Adjudicator D. Sanderson

March 2016 Toronto Star article reporting on the win

[UPDATED] Firm Litigator Ms. Sanchez leads the charge and wins representing 10 applicants at the Human Rights Tribunal in an important challenge involving discrimination, harassment, and Co-op Board obligations (watch Ms. Sanchez and applicants interviewed by CBC and Global News and read more about the front-page news in the Toronto Star and CBC Online).  Read the full 88-page Decision of Human Rights Tribunal Adjudicator D. Sanderson requiring the Co-op Board to post the decision continuously for 6 months, to send notice of the decision to all members, and to pay $30,000.00 in monetary compensation for the infringement of their right to be free from discrimination and harassment.  Read March 9, 2016 Toronto Star article reporting on the win.

[2016] – H.C.W. v. Her Majesty the Queen, Court File No. 2015-3997(GST)G

2016 – Canada Revenue Agency (represented by the Department of Justice) consents to Tax Court Judgement reversing $546,000.00 tax assessment in HST collection dispute.  Matter resolved without need for formal hearing.  See formal  Judgement – February 2016.

Yan David Payne obtains unanimous Ontario Court of Appeal decision confirming $256,902.93 Wrongful Dismissal Trial Judgement plus costs of trial and appeal and interest.  Court awards compensation for lost wages over a 29 month period and a 15% ownership interest in company to this former manager.  See Ontario Court of Appeal Decision.  See also lower court decision:  Loyst v. Chatten’s Better Hearing Service, Court File No. CV-09-378679.  See Cost Order for an additional $35,000.00.
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Osinski v. Her Majesty the Queen

(Tax Court of Canada File No. 2013 TCC 71)

Yan David Payne secures major victory in Tax Court overturning $3.8 Million+ in taxes, penalties, and interest in favour of taxpayer, plus costs of the proceedings payable by Canada Revenue Agency.  See February 27, 2013 decision of Mr. Justice Pizzitelli: Osinski v. The Queen, 2013 TCC 71.  See also 2013 CRA Reassessment crediting $3,834,543.62 in accordance with the Judgement: Osinski Notice of Reassessment 2013.

Rausch v. Pickering (City)

(Ontario Court of Appeal File No. 2013 ONCA 740)

Yan David Payne takes over carriage of case and succeeds at the Ontario Court of Appeal establishing new law.  Court overturns Divisional Court panel and unanimously recognizes client’s right to sue municipalities and by-law officers for negligence and permits claim to proceed: “It is in everyone’s interest that by-laws not be enforced in an ‘unconstrained manner'”  Rausch v. Pickering (City), 2013 ONCA 740.
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D.V. v. Her Majesty The Queen

(Tax Court of Canada File No. 2013-1530(IT)G)

November 19, 2014 – Firm litigator Yan David Payne obtains Judgement reducing Tax Payer’s reassessed income and penalties by over $500,000.00+.  Department of Justice Lawyer representing CRA at appeal consents to Judgement on first day of hearing.  GST reassessment also reduced accordingly.  D.V. v. Her Majesty The Queen, 2013-1530(IT)G .

October 2014 Corus Radio Interview Featuring Yan David Payne

October 2014 – Listen to recent Corus Radio inteview with Yan David Payne on the legal perils of lottery group play.

October 2014 Radio Interview

G.C.S.L. v. Premier Salons Ltd.

(Superior Court File No. CV-11-105362 (2014))

August 2014 – Severance payment in the amount of $75,000.00 plus $35,000.00 cost award secured by firm litigator Hashim Syed despite court’s finding of cause for the termination.  Court accepts firm’s technical argument that termination provisions in employment contract override employer’s defence of cause termination.  The Honourable Madam Justice Healey also dismisses employer’s groundless counterclaim.  See Formal Grossi Judgement [Issued and Entered.  See also detailed Endorsement of the Honourable Madam Justice Healey: G.C.S.L. v. Premier Salons Ltd., 2014 ONSC 5028, CV-11-105362.

Bonnett v. Her Majesty The Queen

(Tax Court of Canada File No. 2012-3874(IT)G)

September 2014 – Firm litigator Yan David Payne secures an Appeal Judgement through the Tax Court of Canada after CRA backs down, reducing client’s taxable income by over $120,000.00 and eliminating all penalties.  See: Bonnett Judgement – Sep.8.14

Jenny Tran and Ajax Unisex Salon & Spa Inc.

(Divisional Court No. 459/13 (2014))

April 2014 – Firm litigator Hashim Syed succeeds in quashing unfounded Appeal by way of tactical motion to Divisional Court.  Successful motion avoids time and expense of full appeal hearing.  See attached Judgement including Full indemnity cost award $25,337.10, plus interest:  Judgement of Justice Kiteley entered Jun 2014

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Bahl v. Cadesky and Associates and Barry Seltzer (2013)

(Superior Court File No. 04-CV-272445CM2)

2013 – Superior Court Allows $12 Million Lawsuit to proceed despite attempt by client’s former lawyer and former accountants to derail the negligence action related to failed tax scheme.  Yan David Payne takes over from Bay Street firm and leads charge in 3-day court motion culminating in full victory against senior members of Ontario bar appointed by professional liability insurers.  See full decision:  Bahl v. Cadesky and Associates and Barry Seltzer, Court Docket Number 04-CV-272445CM2.

General Electric Canada Real Estate Financing Holding Company v. Liberty Assisted Living Inc. (2013)

(Ontario Court of Appeal File No. 2013 ONCA 119)

2013 – Lawyer Karen J. Sanchez obtains unanimous Ontario Court of Appeal decision overturning lower court and awarding costs against respondents.  See: General Electric Canada Real Estate Financing Holding Company v. Liberty Assisted Living Inc. (2013)

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Grigoriadis v. Her Majesty the Queen

(Tax Court of Canada File No. 2012-1428(IT)G)

2013 – Yan David Payne obtains Judgement reducing alleged unreported income from $523,369.00 to $9,000.00.  Department of Justice lawyer ultimately consenting to Judgement at formal hearing stage.  See attached: Letter from tax court, judgement, consent

Cicinelli v. Mayfair Tennis Courts Limited

(Superior Court File No. SC-12-92206 (2013))

2013 – Firm lawyers Yan David Payne and Hashim Syed obtain finding of wrongful dismissal and damages against employer.  Court awards “maximum amount of recoverable” costs under the Rules for employer’s conduct in initially denying wrongful dismissal.  [Link Coming Soon]

Talisman v. Kyser

(Superior Court File No. 2013 ONSC 6612)

2013 – Litigator Karen Sanchez is counsel to defendant in case involving successful motion to stay summary judgement proceedings.  Court stays plaintiff’s summary judgement motion and orders plaintiff to pay security for costs in the aggregate amount of $150,000.00 (including $50,000.00 to client).  See decision in Talisman v. Kyser, 2013 ONSC 6612.

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Lesner v. Her Majesty the Queen (2014)

(Tax Court of Canada File No. 2012-2525(IT)G)

2014 – Firm lawyer Hashim Syed succeeds in combined income tax and HST appeals dealing with multiple tax years.  The Tax Court of Canada allows the appeals and orders reductions in income and HST payable despite highly disputed facts.  See decisions of the Tax Court of Canada:  Income Tax Judgment Dated August 5, 2014 (Heard July 18, 2014. See also accompanying decision leading to minor reduction of HST owing: GST (HST) Judgment Dated August 5, 2014 (Heard July 18, 2014)

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Loyst v. Chatten’s Better Hearing Service

(Superior Court File No. CB-09-378679)

Firm lawyer Yan David Payne successfully obtains judgement for pay in-lieu of notice and lost wages over a 29 month period and a 15% ownership interest in defendant company, all on behalf of former manager.  total judgement for $256,902.93, plus costs and interest.

Optech Inc. v. Sharma

(Superior Court File No. CB-08-362642)

Firm represents employee against unusual $1 Million claim and summary judgement motion brought by former employer.  Court dismisses employer’s summary judgement motion and allows employee’s wrongful dismissal claim to proceed in this detailed 28-page decision.  Losing party represented by team of Bay Street lawyers, ordered to pay costs.

 Rai et al. v. Finecraft Fine Jewellery

(Superior Court File No. CV-10-412224)

 Superior Court accepts Mr. Payne’s submissions on reasonable notice period for two long-serving employees in this unusual summary judgement motion.  The Honourable Justice Penny finds that firm clients were each entitled to 22 months pay in-lieu of notice, well in excess of the 8 months paid by employer.  Order made despite fact that notice period had not yet elapsed when matter heard by Court.  Employer represented by experienced Bay Street Litigator.  Endorsement also represents first known decision assessing reasonable notice for employee terminated while on disability leave.  No need for pre-trial process or formal trial.  Case resolved prior to obtaining formal Order.  (See Excerpt from Endorsement of Justice Penny).

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Dardha v. Theodore et. al.

(Ontario Court of Appeal File No. C51251)

Judgement in favour of former gas station operator exceeding $500,000.00 (combined Judgement, costs and interest) unanimously upheld by Ontario Court of Appeal.  See also original Superior Court Judgement.

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Kelland v. POI Business Interiors Inc.

(Ontario Court of Appeal File No. C49149)

Unanimous Ontario Court of Appeal victory in favour of employee.  Employee awarded right to pursue constructive dismissal claim and awarded costs of appeal.  Employer represented by senior partner of Bay Street firm.

Keith Phillips v. Canada Revenue Agency (2013)

(CRA Asst Commsr ltr 06mr13w Remission Order 31Ja13)

2013 – Firm obtains very rare Remission Order issued by Federal Cabinet/His Excellency the Governor General in Council (Order in Counsel P.C. 2013-40) on behalf of firm client.  Remission Order provides for remission of all tax, penalties, and interest for three taxation years at issue.  See confirming Letter and Signed Order.  See Confirming Letter and Signed Order: CRA Asst Commsr ltr 06mr13w Remission Order 31Ja13.  See also Extract from Canada Gazette publishing the Order: Canada Gazette 13f13.

Man v. Zheng

(Superior Court File No. 06-CV-318789PD)

2012 – Firm lawyer Yan David Payne successful in setting aside Superior Court Judgement (worth over $150,000.00) and writ of execution registered against firm client, despite substantial 4-year delay.  Court accepts firm’s arguments and submissions for default, delay, and merits of defence.  (See Endorsement of Justice Campbell – 2012)

Tidd v. Her Majesty the Queen

2012 – Firm secures unprecedented application of the clergy tax deduction (s. 8(1)(c) of the Income Tax Act) in support of client’s tax deductions.   Firm Tax Lawyer Mr. Yasny succeeds in obtaining Judgement before the Tax Court of Canada against Canada Revenue Agency.  Read the Decision: Tidd v. Her Majesty the Queen, 2012 CC 16.

Dai v. Dai et al.

(Superior Court File No. CV-11-429754)

2012 – Firm lawyer Yan David Payne takes over carriage of court file, successfully appealing and overturning controversial decision dealing with disclosure of sensitive personal documents.  Court agrees with firm submissions and arguments, awarding costs against the Respondent.  Respondent represented by partner in Bay Street firm and Osgoode Hall Law School professor.  (See Dai Endorsement 2012)

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