Reported Cases

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NOTABLE REPORTED CASES AND NEWS UPDATES

Crew et al. v. Rouge Valley Co-op (March 2016)

Decision of Human Rights Tribunal Adjudicator D. Sanderson

March 2016 Toronto Star article reporting on the win

 

March 2016 (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.

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.

[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

[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.

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)

Qin v. Xin

(Superior Court File No. CV-11-436472)

2012 – Firm obtains judgement for $90,653.92 plus costs and interest within months of issuing Superior Court Claim.  (See Judgment – Qin v. Xin – 2012)

Draper et al. v. Suzuki Canada Inc.

(Superior Court File No. CV-11-425347)

Superior Court accepts each and every argument raised by Mr. Payne on behalf of former employees of Suzuki Canada Inc., and rejectsa ll submissions by Defendant Suzuki Canada Inc. and by its Bay Street lawyers in this attempt to separate claims brought jointly by former Suzuki employees.  Attempt at divide and conquer strategy fails.  Decision forces Suzuki Canada to pay employees for failed motion and sends a clear signal to all employers that claims may be joined.  (See Endorsement of Master McAfee – Draper v. Suzuki)

 S.A. v. 8-B.A.S. Ltd.

(Superior Court File No. 07-339832SR)

Firm obtains Judgement for 12-months pay in-lieu of notice ($30,000.00) plus $17,000.00 in compensation for lost tools on behalf of mechanic with 5 years of service.  Court also awards costs and interest against employer.  Firm seizes funds from employer’s bank account.  (See Judgment of justice Lederer)

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A.U.S.&S. Inc. v. A.E.

(Ontario Court of Appeal File No. C53586)

Yan David Payne resolves dispute between firm client and her former solicitor at Ontario Court of Appeal.  The Province’s highest Court awards costs for both the appeal and lower-court motion.  This decision follows another unanimous Ontario Court of Appeal cost award of $5,000.00 against the same lawyer for a related motion.

Chow v. Her Majesty the Queen

(Tax Court of Canada File No. 2011 TCC 263)

Firm obtains Judgement on behalf of taxpayer reducing assessed income by over $49,000.00 and deletion of all penalties and interest for the 2004 tax year.  This following earlier reductions amounting to approximately $130,000.00 in pre-appeal negotiations and leading to a total reductions in assessed income and penalties of over $200,000.00 through audit, objection, and appeal stages.  In her cost decision, the Honourable Justice Miller commends Mr. Payne on his preparation and organization.  Yet another example of a taxpayer’s ability to successfully challenge CRA’s over-taxation at audit, objection, and tax appeal stages.  See the Decision: Chow v. Her Majesty the Queen.

Mohamed v. Nathanial Campbell and Nathanial’s Auto Salon

(Superior Court File No. 09-CV-376395)

Firm secures Superior Court Judgement and costs totaling $30,417.22, plus interest, following trial against vehicle importer.  See Full Reported Decision.

Janis Valentine et al. v. Gametronics Gaming Equipment Limited

(Superior Court File No. 02-CV-239526CM3)

Yan David Payne obtains Judgement on behalf of group of former employees in the amount of $80,753.13, plus costs and interest.  Employer’s appeal attempt dismissed.  Judgement and costs fully recovered through enforcement procedure.  (See valentine judgement).

Comeau v. Whiteman

(Superior Court File No. CV-10-0315SR)

Firm obtains Judgement in favour of firm client for $17,000.00 plus costs stemming from flooding to basement first discovered on eve of closing.  (See Judgment – Justice Scott – Comeau v. Whiteman).

Khamis v. Statel Capital Partners Inc., et al.

(Superior Court File No. 07-CV-335479SR)

Yan David Payne manages to convince Superior Court to hold trial in Toronto despite former employer being located in Ottawa.  Costs awarded to client.  (See decision: Superior Court File No. 07-CV-335479SR)

Royal Bank of Canada v. Welton et al.

(Superior Court File No. 06-CL-6797)

Yan David Payne argues and obtains Superior Court of Justice Order setting aside multi-million dollar judgement in the amount of $5,596,756.86, which had been obtained against firm client prior to firm’s involvement.  Opposing party represented by senior partner of Bay Street firm.

Xu v. Canada

(Tax Court of Canada File No. 2009-1293(IT)G)

Yan David Payne obtains Judgement of $264,393.00+ on second day of hearing.

Nistap Development Corporation v. McIntyre

(Divisional Court Appeal File No. 35/08)

Yan David Payne wins appeal at Divisional Court level overturning small claim court judgement against firm client and substituting judgement in favour of firm client, plus costs of the appeal.

Cohen v. Borden Ladner Gervais

(Divisional Court Appeal File No. 426/04)

Yan David Payne wins appeal on behalf of underdog client against major Bay Street firm.  As a result of the victory, the Bay Street Firm was ordered to pay costs incurred in the appeal and in lower court proceedings.

Jara v. Canada Customs

(see Ministerial Decision – Jara)

Firm successfully obtains return of over $177,000 in seized funds along with apology from Canadian government on behalf of firm client.

Luu v. Thai

(Superior Court File No. 02-CV-233485CM1)

Firm successfully argues motion setting aside Judgement against firm client despite significant 6-year delay by client in filing a defence, and over 1 year after judgement obtained.  (See Endorsement – Justice Harvison Young – Luu v. Thai)

Bagla v. Davidson et al.

(Divisional Court Appeal File No. 78719)

Yan David Payne succeeds in appeal at Divisional Court level overturning tribunal decision based on fairness, natural justice and errors of law.

Groupe Atlantus v. Avi Benmoise et al.

(Superior Court File No. 05-CV-284491)

Yan David Payne wins at trial, obtaining Judgement of $60,000.00+ stemming from international transaction between the parties.  Defendant’s counterclaim is dismissed.  Additional Substantial Cost award of $38,000.00 awarded due to Defendant’s conduct.  See Cost Award Decision.

Ji Jiang Cheng v. Yen Trang Luu,

(Superior Court File No. 04-CV-262457SR)

Yan David Payne wins $50,000.00 for client plus interest plus $25,000.00 cost award following week-long trial against senior Toronto trial lawyer.  Judgement and costs in favour of client.  Defendant’s appeal attempt dismissed with costs in favour of client.

Jozef Maksymiak v. Breakwater Resources Ltd.

Yan David Payne succeeds in restoring client’s right to appeal after paralegal’s error leads to dismissal of the proceedings.

Yang v. 1549710 Ontario Inc. et al.

(See Judgment – Justice Pattillo – Yang v. 1549710)

Firm obtains Judgement in favour of firm client for $36,864.00, plus costs and interest.

Kadosh v. 1275815 Ontario Inc.

(Superior Court File No. 03-CV-260714SR)

Firm represents Defendants, successfully defending claim and, more importantly, obtaining money Judgements against Plaintiffs – a rare result for defending parties.  Plaintiff dis-entitled to costs.

Endo v. Cai

(Superior Court file No. 05-CV-94781PD1)

Yan David Payne secures Certificate of Pending Litigation against Defendant’s property prior to trial, followed by Judgement of $90,000.00.

1684819 Ontario Limited v. Tian Qing Guo and China Buffet Chen Inc.

(see Judgement – Justice Conway – Guo v. China Buffet Chen Inc.)

Firm secures Judgement for $232,164.08, plus interest.

Brouillette v. H  & R Transport Limited 

(see Decision of Adjudicator Gorsky – Brouillette v. H & R Transport Limited)

Yan David Payne secures 64-page decision in favour of firm client under the Canada Labour Code and rejecting employer’s objections and permitting s. 240 Unjust Dismissal application to proceed.

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Barbara Wells v. Metcap Living Management Inc.

(Superior Court File No.: 07-CV-343998SR)

Firm obtains formal Judgement against former employer for balance owing under settlement agreement, including a mandatory Order that the employer provide a positive reference letter: “… and to provide a positive reference letter reflecting nine years of loyal and dedicated service, the remaining terms of said reference letter to be agreed to by the parties and the defendant shall respond to any and all inquiries in a manner consistent with the tone and content of the said letter”.   (See Judgment – Signed and Entered (Lederer’s decision)

 Cao v. Human Resources and Skills Development Canada

(see Board of Referees Decision)

Firm successfully appeals denial of EI benefits (based on allegations of misconduct) to Board of Referees.  One of many decisions where the Board unanimously accepts Mr. Payne’s submissions, overturns HRSDC’s decision to deny, and reinstates full benefits.

 Ng v. Human Resources and Skills Development Canada

(see Letter from Service Canada)

HRSDC decision denying client’s EI benefits application resceinded following filing of Appeal to Board of Referees and written submissions by Firm.  Matter fully resolved within 8 days.

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Gaudet v. The Ottawa Hospital

(Human Rights Tribunal File No. 2009 HRTO 158)

Firm successfully proceeds with Human Rights Application against employer independent of union after union withdraws all grievances.   (See Interim Decision – Reactivation of Application)

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Johathan Leong et al. v. Toronto E. Auto Ltd. et al.

(Superior Court File No. 04-CV-274070SR)

Yan David Payne wins judgement at Superior Court trial in favour of Firm client.

Frank Martino v. Microbix Biosystems Inc.

(Superior Court File No. T6770/02)

Yan David Payne wins wrongful dismissal trial against major Bay street law firm of Borden Ladner Gervais LLP.  Judgement and costs in favour of client.

Past Results are not necessarily indicative of your individual prospects.  Please arrange a consultation for a review of your particular case.