Yan David Payne, B.A.(Hons), LL.B. is a Certified Civil Litigation Specialist, as designated by the Law Society of Ontario. He has an impressive track record and is the Senior Managing Lawyer of the Payne Law Team as well as a Qualified Arbitrator (ADRIC/ADRIO).

Mr. Payne articled at a highly-respected civil litigation boutique in Toronto.  He later headed the litigation division of a commercial and tax litigation firm in Toronto, taking on full responsibility for important cases and successfully taking numerous cases to trial and to appeal over the 20 years that followed.  Ultimately, Mr. Payne’s drive, work ethic and successes led colleagues and clients alike to follow him to his private practice, which was founded in 2005/2006.

He has acted as principal and mentor to articling students and to new lawyers over the years.  Mr. Payne has been retained to lead a variety of litigation cases.  He has represented clients in tax matters, negligence and professional liability claims, defamation actions, wrongful and constructive dismissal matters, human rights, complicated commercial disputes including shareholder and partnership litigation, contentious estate litigation, property/title disputes, and complex appeal proceedings, among others.  Mr. Payne has acted as a Judge (including being asked to judge final rounds) at the Osgoode Cup Mooting Competition (the largest and longest standing undergraduate moot in Canada) and is a qualified arbitrator.

Starting in 2020, Mr. Payne was asked to be an expert speaker by the Canadian Bar Association and Ontario Bar Association on tax litigation and employment law developments in the Covid-19 era.

Mr. Payne has been appointed by the Superior Court of Ontario as Independent Supervising Counsel and has advised and represented a broad range of clients from individual employees to established corporations, from small and medium-sized businesses to domestic, foreign, national and international organizations, from the chief of police, top ranked athletes, university professors, the Mayor of a major Canadian City, to court officials, professional regulatory and insurance bodies, as well as other professionals including lawyers, accountants, and doctors.

Mr. Payne has represented clients before administrative tribunals, the Superior Court of Justice, the Divisional Court, the Ontario Court of Appeal, and up to the Supreme Court of Canada.

He has also been assigned to mediate and arbitrate a broad range of disputes.  He is recognized as a Qualified Arbitrator by the ADR Institute of Canada and the ADR Institute of Ontario.

Mr. Payne has an outstanding trial and appeal record including numerous widely-reported cases.  He has personally successfully argued hundreds of motions, trials, and appeals.

For example, see the precedent-setting unanimous Ontario Court of Appeal decision of Rausch v. Pickering (City) 2013 ONCA 740 which recognized, for the first time, a duty of care upon a municipality and its by-law officers in the enforcement of by-laws.  The case has been repeatedly cited by numerous courts on multiple legal issues.

In Loyst v. Chatten’s Better Hearing Service 2012 ONSC 1653, Mr. Payne secured an impressive wrongful dismissal award for lost wages equal to a 29-month notice period plus a 15% ownership interest in the company for a total award of $256,902.93 (the decision was unanimously upheld by the Ontario Court of Appeal, see Loyst v. Chatten’s Better Hearing Service, 2013 ONCA 781).

In Osinski v. Her Majesty the Queen 2013 TCC 71, Mr. Payne defeated the Canada Revenue Agency and the Department of Justice, overturning $3,834,543.62+ in taxes, penalties, and interest in favour of taxpayer.  In the recent 2017 case Her Majesty the Queen v. M. S., 1211 998 16 361300, Mr. Payne was able to secure an Order for the withdrawal of 20 tax evasion charges against an accountant and for the return of all seized property.

Mr. Payne is always eager to play David to Bay Street’s Goliath.  The Ontario Court of Appeal recently accepted Mr. Payne’s arguments dismissing Fasken’s attempt to exercise a $360,000.00 solicitor’s lien against its former individual client – see Ontario Court of Appeal decision in Weenen v. Biadi , 2018 ONCA 288 and related article about Mr. Payne’s handling of the case: Court of Appeal dismisses Fasken’s motion for charging order against client – The Lawyer’s Daily – PDF.  Please visit our Reported Cases section to review numerous other court victories secured by senior member of the bar, Yan David Payne.

Recent Decisions:

More recently, In 2022, Mr. Payne and Mr. Clark secured a win following attendance before the Ontario Court of Appeal panel chaired by Chief Justice Ceorge Strathy.  The appeal upheld the firm’s earlier trial decision involving beneficial ownership of a property, partition and sale, and claims of resulting trust and constructive trust.  The Ontario Court of Appeal awarded costs of $9,500.00 in favour of our clients.  See: Decision of the Ontario Court of Appeal in Inniss v. Blackett, 2022 ONCA 166.

In 2022, Mr. Payne succeeded in freezing funds through preservation Order (brought on motion without notice), and succeeded in securing further Order for preservation of Hundreds of Thousands in additional funds.  See Order of the Honourable Justice Myers dated February 4, 2022: He v. Li, Court File No. CV-21-00672289-0000.  An Order for the release of hundreds of thousands of dollars to our client is now awaiting a Judge’s signature.

Also in 2022, Mr. successfully argued that a client’s former firm was not entitled to summary judgment to compel payment of its alleged outstanding fees.  See: Teplitsky, Colson LLP v. BSA Diagnostics Imaging Inc., 2022 ONSC 4130.

In June 2023, Mr. Payne pressed CRA and the Department of Justice to the eve of a formal hearing and was able to secure a consent Order from the Tax Court of Canada reducing the taxpayer’s assessed employment income from $43,772 to zero for the 2014 tax year; from $48,149 to zero for the 2015 tax year; from $52,964 to zero for the 2016 tax year; further reducing the capital gains tax on disposition of a property from $50,000 to zero, eliminating all penalties and interest.  See: Judgment – Signed Jun 7.23 and associated Consent to Judgment.

Certified Civil Litigation Specialist

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James R.D. Clark, H. BSc., LL.B., is a seasoned litigator with over 20 years of practice and with numerous trials and appeals to his credit.  Prior to joining the Payne Law team, Mr. Clark was a named partner in a Bay Street litigation boutique where he practiced for over 17 years.  He has a broad litigation practice, which includes civil, commercial, insolvency/bankruptcy, administrative, and criminal/quasi-criminal litigation.  He has argued before the Ontario Court of Appeal, Ontario Superior Court of Justice (including the Commercial List and the Divisional Court on appeal matters), the Tax Court of Canada, Ontario Court of Justice, the Human Rights Tribunal and other administrative tribunals.  He has represented clients at every level of Court in Canada, including at the ultimate Supreme Court of Canada stage.

On March 2, 2023 – Mr. Clark secured a unanimous decision before a panel of the Ontario Court of Appeal, upholding lower court decision setting aside the transfer of real estate between spouses (transferred by debtor prior to bankruptcy) making value of debtor’s interest in property available for distribution among creditors.  Total value of proven claims $974,395.23.  See [2023] Jovkovic v. DaSilva, 2023 ONCA 137.

In June 2023, Mr. Clark secured a Writ of Possession entitling our client to evict occupying family members with the assistance of the sheriff.  See: Issued and Entered Order of Justice K.A. Gorman – June 14.23 (VM).  This follows earlier (2022) Order for Partition and Sale of property occupied by client’s family members despite bitter opposition.  See: Nguyen v. Tong – Ruling on Application – 2022 ONSC 6251. A separate Cost Order was released in 2023 for $8,600.00 in favour of our client, being the full amount claimed.

In 2022, Mr. Clark and Mr. Payne secured a win following attendance before an Ontario Court of Appeal panel chaired by Chief Justice Ceorge Strathy.  The appeal upheld the firm’s earlier trial decision involving beneficial ownership of a property, partition and sale, and claims of resulting trust and constructive trust.  The Ontario Court of Appeal awarded costs of $9,500.00 in favour of our clients.  See: Decision of the Ontario Court of Appeal in Inniss v. Blackett, 2022 ONCA 166.

In 2022, Mr. Clark was successful in setting aside the transfer of property (transferred by the debtor prior to bankruptcy) making value of debtor’s interest in the property available for distribution among creditors.  Total value of proven claims $974,395.23.  Read full May 27, 2022 Endorsement of Justice A.K. Mitchell: https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2691/2022onsc2691.html?resultIndex=1

Also in 2022, Mr. Clark secured an Order for Partition and Sale of property occupied by client’s family members despite bitter opposition.  See: Nguyen v. Tong – London Court File No. CV-22-895 – Ruling on Application.  A separate Cost Order was released in 2023 for $8,600.00 in favour of our client, being the full amount claimed.

Mr. Clark has been a conference speaker and panelist for the Canadian Association of Insolvency and Restructuring Professionals and has represented trustees in bankruptcy in complex litigation matters including motions for judgment and motions under sections 96(1) and 164 of the Bankruptcy and Insolvency Act.  Recently he secured a formal Order authorizing our client (Judgment Creditor) to prosecute proceedings to set aside transfer of matrimonial home to wife (18 months prior to bankruptcy) for undervalue.  See endorsement of the Honourable Justice Tranquilli dated June 4, 2021: BK-17-2314079 DaSilva v Jovkovic – Endorsement J. Tranquilli dated June 4, 2021.  See also formal Order issued by Superior Court of Justice in Bankruptcy and Insolvency: BK-17-2314079 DaSilva v Jovkovic – Order J. Tranquilli dated June 4, 2021

In the Matter of the Bankruptcy of National Telecommunications Inc. 2018 ONSC 1101, Mr. Clark secured a formal Declaration voiding $334,841.00 in transactions which were deemed undervalued.  The Honourable Justice Pattillo accepted his argument that the transfers were “intended to defraud or delay” a major creditor by falsifying its receivable and payables.  This motion came on the heels of another successful Superior Court of Justice motion in which Mr. Clark was able to obtain a separate order for the payment of $159,330.00 on similar grounds.  See the Honourable Justice Myers’ decision in Re: National Telecommunications Inc., a bankrupt, 2017 ONSC 1475.

Recently, Mr. Clark was a speaker at the 2020-2021 Canadian Association of Insolvency and Restructuring Professionals National Webinar Series.

Mr. Clark has handled preservation motions including complex matters involving Mareva Injunctions and Certificates of Pending Litigation.  See for example, 2057552 Ontario Inc. v. Dick et al., 2015 ONSC 3182, wherein he was successful in setting aside the Mareva Injunctions at issue.  He was also successful in fending off the subsequent appeal and in reducing the quantum of the  Judgment by way of cross-appeal to the Ontario Court of Appeal.  See the Ontario Court of Appeal decision in 20157552 Ontario Inc. v. Dick et al., 2016 ONCA 8.

Mr. Clark has handle a broad range of trial and appeal matters, seeing cases through to completion.  For example, he was defence counsel in a 4-day trial under the Occupational Health and Safety Act, and successfully argued the related appeal.  See R. v. Semple Gooder Roofing Corporation, 2015 ONCJ 183.

Eliyahu (Eli) Smolarcik, B.A., J.D., is an exceptional litigator with a proven track record at the Superior Court of Justice, including Divisional Court appeal matters, and at the Ontario Court of Appeal level, as well as before the Ontario Court of Justice, Small Claims Court, and various tribunals.  Eli has handled a broad range of cases up to trial and has successfully argued formal appeals.

After graduating law school in 2015, Eli articled and continued to practice in a reputable boutique litigation firm for many years, gaining invaluable experience, including successfully resolving cases at all levels of court in the Province.  He continued to handle court cases including appeal matters throughout the pandemic.  He has represented clients at trial and on appeals before both Divisional Court and Ontario Court of Appeal panels.

In a notable trial, Eli Smolarcik represented the Estate Trustee before the Superior Court of Justice, fending off a contentious breach of trust claim following 2-day trial, and also securing gold certificate as part of the estate over objection of daughter.  See: Henry v. Henry, 2019 ONSC 740.

Earlier this year, Eli single-handedly secured dismissal of an appeal before a 3-Judge panel of the Ontario Court of Appeal, again securing costs in favour of the client.  See Carvalho v. Amorim, 2022 ONCA 158.

Through November and December 2022, Eli was able to secure an initial interim injunction, followed by a series of further injunction Orders prohibiting a neighbour/developer from touching a client’s fence or trees.  The injunction has been ordered extended twice including by Endorsement of Justice Koehnen Released December 6, 2022.

In February 2023, Eli was successful in preserving our client’s interest in an investment property by way of motion seeking leave to register a Certificate of Pending Litigation (CPL).  The Superior Court of Justice granted leave to register the CPL against title of the property which only reflects Defendants as legal owners.  The Court also assessed $5,000.00 in costs for the motion.  See: Na v Na – 20230213 – Signed Order.

In June 2023, Eli secured a Certificate of Pending Litigation on behalf of a firm client to be filed against title of a commercial property preserving it for the duration of the litigation.  See Court Order granting our Motion: Issued CPL Order – June 2.23 (VM).

Eli’s broad experience in civil and commercial litigation cases includes shareholder litigation, property disputes, constructive and resulting trust claims, breach of contract cases, as well as estate litigation and contentious family law disputes.  He is comfortable negotiating and litigating up to and including formal hearings and appeals.

When Eli is not diligently advocating for his clients, he is helping his community as a volunteer paramedic, providing emergency medical services to those in need.

Rishi K.C. Sharma, B.A. (Hons), J.D., L.L.M., is a passionate and confident litigator. He is a recognized lawyer in Ontario, Canada and Queensland, Australia. Rishi commenced his legal career as a Prosecutor with the Queensland Police Service in Australia assisting numerous victims obtain justice through skillful advocacy, attending court on a regular basis.  Additionally, Rishi appreciates the importance of negotiating disputes outside of the courtroom and has a Master of Laws in Advanced Dispute Resolution.  He was awarded first in class for the subject Mediation and Dispute Resolution Practice 1.

Since his return to Canada, Rishi has obtained a broad litigation experience in a variety of practice areas including negligence, civil, and commercial litigation, and continues to build on his previous successful results.  Rishi has successfully resolved a broad range of claims including wrongful dismissal, insurance-related, administrative law, and property-related disputes.  He recently argued a Superior Court of Justice motion leading to an order for particulars and for inspection of records as well as costs of $7,000.00.  See: Order October 27, 20222 Cv-21-3386-00.  The Plaintiff’s refusal to provide particulars and to permit inspection of documents referred to in the Statement of Claim ultimately cost the Plaintiff, and delayed the Plaintiff’s own action by over one year.

Rishi also cares about the betterment of the community and has been recognized for his long-standing volunteer efforts with the Canadian College of Family Physicians.

Megan Oxenham, B.A., is the firm’s office manager and senior litigation clerk.  No stranger to conflict resolution, Ms. Oxenham brings her Bay Street firm experience and  her background as Special Assistant to the Premier of Ontario to the Payne Law team. She has been a valued member of the team since 2006.

Vidya Mohan, B.A. (Hons.), is an experienced law clerk who has spent the past 5 years supporting litigation counsel (first as a legal assistant and more recently as a law clerk).  She obtained her B.A. (Hons.) in 2015 and her paralegal diploma in 2018.  As a result of her experiences working for a Bay Street law firm as well as for boutique litigation firms, she is familiar with a broad range of legal procedures and areas of practice including securities litigation, construction law and liens, bankruptcy and insolvency, civil, criminal and white collar fraud, complex commercial and shareholder disputes. She is also familiar with a broad range of administrative tribunals.