RECENT AND NOTABLE REPORTED CASES
March 2, 2023 – We secured a unanimous decision from Ontario Court of Appeal panel, 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  Jovkovic v. DaSilva, 2023 ONCA 137. See also full lower court reasons of Justice A.K. Mitchell: Endorsement Mitchell J. CV21-1176 Jovkovic v. Dasilva et al. Reasons for Judgment 27May22
In February 2023, we were 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 solely listed Defendants as legal owners. The Court also assessed $5,000.00 in costs for the motion. See: Na v Na – 20230213 – Signed Order.
 Archer v. His Majesty the King, Tax Court of Canada 2020-822(IT) G
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; and eliminating all penalties and interest. See: Judgment – Signed Jun 7.23 and associated Consent to Judgment.
June 2023 – Mr. Clark secures Order granting leave to issue a Writ of Possession on a disputed property permitting firm client to evict occupants with assistance of 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 June 2023, we 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).
December 2022 – Following successful motion for injunction and preservation of monies held by the Court (in a separate action involving different parties), Mr. Payne was able to preserve those funds by Court Order and was able to secure a further Order for the release of $266,242.14 to our client, who was not a party to the initial action. See: Order (He et al. v. Li et al.) – issued
Through November and December 2022, litigator Eli Smolarcik 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.
2022 – Ontario Court of Appeal panel, headed by Chief Justice George Strathy, sides with firm litigators Mr. Payne and Mr. Clark, in an appeal involving beneficial ownership of a property, partition and sale, and claims of resulting trust and constructive trust. The Ontario Court of Appeal panel awarded costs of $9,500.00 in favour of our clients. [Decision of the Ontario Court of Appeal in Inniss v. Blackett, 2022 ONCA 166]
2022 – Litigator James Clark succeeds in setting aside transfer of property (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. Read full May 27, 2022 Endorsement of Justice A.K. Mitchell: Endorsement Mitchell J. CV21-1176 Jovkovic v. Dasilva et al. Reasons for Judgment 27May22
2022 – Litigator Eli Smolarcik single-handedly secures unanimous decision by 3-Judge panel of the Ontario Court of Appeal, dismissing appeal and awarding costs in favour of client in a highly contested family law financial dispute. See: Carvalho v. Amorim, 2022 ONCA 158.
2022 – Firm secures 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.
2022 – Following successful “freezing” of funds through preservation Order (brought on motion without notice), firm succeeds in securing further Order for preservation of Hundreds of Thousands in additional funds. See Order of the Honourable Justice Myers dated February 4, 2022: Order of Justice Myers (He v. Li et al.) – ISSUED – Feb 4.22.
2022 – Mr. Payne successfully argues that client’s former firm is not entitled to summary judgment for payment of its alleged fees. Summary Judgment motion dismissed. See: Teplitsky, Colson LLP v. BSA Diagnostices Imaging Inc., 2022 ONSC 4130.
2022 – Firm secures Order for particulars and inspection of records prior to filing Statement of Defence. Court confirms our client’s entitlement and awards $7,000.00 in costs against Plaintiff. Plaintiff’s conduct delays own action by over one year. See: Order October 27, 20222 Cv-21-3386-00
December 2021 – Firm interim motion for mareva injunction and preservation Order succeeds in “freezing” funds in the amount of $523,500.00. Motion brought without notice. See Order of the Honourable Justice Myers dated December 22, 2021: Order and Sch A of Justice Myers – ISSUED – Dec 22.21
June 2021 – Firm secures Order authorizing our client (a Judgment Creditor) to prosecute proceedings against a bankrupt 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
2021 – We regularly secure Preservation Orders and Certificates of Pending Litigation in cases where ownership of a property is in dispute. This is a 2021 example where we secured Certificates of Pending Litigation (see, for example: CPL re. 40226-0068 – ISSUED – June 10.21 and CPL re. 40227-0081 – ISSUED – June 10.21) and we also obtained a Superior Court of Justice Order directing that a property be preserved, requiring all logging operations to cease. See: Order from Justice Scott – ISSUED on May 31.21
2020 – We argued one of the first remote Divisional Court appeal hearings in the Province’s history. We were successful in upholding our clients’ right to sell a jointly-owned property, despite bitter opposition from the co-owner. The Divisional Court upheld the sale and ordered costs in favour of our clients. This comes shortly after we obtained multiple cost awards in earlier motions for a stay and for having initiated the appeal in the wrong court. See 2020 Divisional Court decision: Krizan v. Skurdelis, 2020 ONSC 4386.
2020 – Firm secures Superior Court of Justice Judgment for $250,437.57 in actual damages plus $100,000.00 in punitive and exemplary damages in divisive investment dispute. The Honourable Justice Pollak also awarded costs and post-judgment interest at a rate of 8% per annum. See attached October 2020 Endorsement of the Honourable Justice Pollak. See also formal Judgment issued against Defendants: Judgment – ISSUED on June 4.21.
2020 – Mr. Payne and Mr. Syed succeed in defending a motion to stay a Superior Court of Justice Order pending appeal and obtain cost award. Firm clients permitted to proceed with sale of house despite pending appeal. See formal Order: Krizan v. Skurdelis – Divisional Court File No. 712-19. See also the Honourable Justice Swinton’s reported reasons: Endorsement of Justice Swinton. This Order comes shortly after firm obtained costs against same party for bringing appeal and motion in wrong Court.
2020 – Recently, we were successful at trial in having our client’s interest in a property recognized by the Superior Court of Justice, and in obtaining an Order compelling the sale of the property. All of this despite the fact that our client had been out of the property for over 10 years. The claim was bitterly opposed. In July 2020, the Court rendered its decision in favour of our client and awarded costs of $35,000.00 against the Defendant: July 6, 2020 Judgment of Justice Faieta
2019 – Litigator Eli Smolarcik, representing the Estate Trustee, succeeds in fending off 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
2019 – Firm secures Judgment of over $427,000.00 including punitive damages and costs. See formal Judgment: Jovkovic v. Dasliva Motorsports Ltd. – Superior Court File No. CV-15-523869. Judgment obtained despite personal Defendant having made an assignment into bankruptcy. Judgment only possible because firm previously obtained separate Order for leave to proceed against Defendant despite assignment into bankruptcy. See previous Order obtain from Bankruptcy Court: Order from bankruptcy court in London – June 6.18
2019 – Payne Law Team secures trial victory against the Department of Justice and CRA following 2-day hearing before the Honourable John Justice R. Owen. 3 years of reassessments fully vacated and additional penalties dropped. See also transcript of reasons for decision [coming soon]. Douglas Charles Johnson v. Her Majesty the Queen (2019)
2019 – Payne Law Team secures a formal Judgment for $700,000.00+ in this real estate and business dispute gone wrong. See formal Order: Sywak-v.-Collver-Superior-Court-File-No.-18-67074
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
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)
2018: Mr. James Clark, acting as counsel for trustee in bankruptcy, secures 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.
2018 – Payne Law Team 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
2018 – Abandoned Real Estate Transaction leads to quick Judgment of $94,325.39 plus costs of $9,500.00. Firm secures Judgment. See attached formal Order: C.S. v. R.N. – Judgment – ISSUED on Oct 15.18
2018: Firm 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
2018: Firm 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.
2018 – Firm liobtains 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
Firm subsequently obtains Superior Court Judgment against Defendants worth over $427,000.00 including punitive damages and costs. See formal Judgment: Jovkovic v. Dasliva Motorsports Ltd. – Superior Court File No. CV-15-523869
2018 – Following a multi-year battle, CRA and the Department of Justice capitulate and consent to Judgment granting tax appeals in full, including dropping all penalties and interest. See formal Judgment: Zamir v. Her Majesty the Queen, Tax Court of Canada Docket 2014-1293(IT)G
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
2017 – Mr. Clark successful in motion brought on behalf of trustee in bankruptcy to set aside transfers deemed undervalued and further secures Order for the payment of $159,330.00. See the Honourable Justice Myers’ decision in Re: National Telecommunications Inc., a bankrupt, 2017 ONSC 1475.
2017 – Firm 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
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.
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.
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 – Trial and Appeal lawyer James Clark successfully appeals trial decision under the Occupational Health and Safety Act ultimately vacating the trial judge’s verdict. See decision of the Honourable Justice J. Ritchie in R. v. Semple Gooder Roofing Corporation, 2015 ONCJ 183.
March 2016 Toronto Star article reporting on the win
Payne Law Team represents group of 10 applicants at the Human Rights Tribunal in an important challenge involving discrimination, harassment, and Co-op Board obligations (Seethe 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 – 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 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.
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 .
2014 – Listen to recent Corus Radio interview with Yan David Payne on the legal perils of lottery group play.
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.
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
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
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.
2013 – 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)
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 Judgment 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]
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)
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.
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.
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).
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.
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)
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.
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)
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.
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)
Past results are not necessarily indicative of future results. The amount recovered and other litigation outcomes will vary according to the facts in individual cases. Please speak with us about the facts of your case.
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