



COURT OF APPEAL FOR ONTARIO

CITATION: O'Laughlin v. Byers, 2015 ONCA 210

DATE: 20150330

DOCKET: C59475

Sharpe, Pepall and van Rensburg JJ.A.

BETWEEN

Donna OLaughlin

Plaintiff (Respondent)

and

Timothy John Byers, 1566997 Ontario Inc.

and Kelly Ann Jamieson

Defendants (
Appellants
)

Robert Isles, for the appellants

Peter C. Card, for the respondent

Heard and released orally: March 25, 2015

On appeal from the judgment of Justice Guy P. DiTomaso of
    the Superior Court of Justice, dated November 3, 2014.

ENDORSEMENT

[1]

This is an appeal of a summary judgment. The appellants contend that the
    motion judge erred in granting judgment after concluding that there was no
    issue requiring a trial. We disagree.

[2]

The respondent provided evidence of a loan, an amortization schedule
    prepared by the appellants lawyer and a list account of payments received and
    demands made. The appellants admitted to the loan and the various payments made
    by cheque, but contended that additional payments were made by cash and cheque.

[3]

The motion judge carefully analyzed the payments the respondent
    acknowledged having received and the payments the appellants contended were
    made, and found the appellants evidence was inadequate. The evidence included
    substantial payments not required by the amortization schedule, and the
    additional payments were unsupported by any receipts.

[4]

The appellants assert that the motion judge erred in failing to consider
    evidence of the respondents income tax returns. We are not persuaded that this
    was overlooked or that it would have made any difference to the result. Nor do
    we agree that the motion judge failed to consider the fact that the respondent
    dealt with certain financial aspects of the appellant Byers businesses. This
    fact was evident on the record but could not have been determinative of the
    issues.

[5]

In the end the appellants failed to put their best foot forward on the
    question of the payments they assert were made on the mortgage.

[6]

The appeal is accordingly dismissed. Costs to the respondent fixed at
    $12,000, inclusive of disbursements and taxes.

Robert
    J. Sharpe J.A.

S.E.
    Pepall J.A.

K.
    van Rensburg J.A.


