Hugh K. O'Connell

The plaintiff sought equitable relief from forfeiture of a substantial deposit on a real estate purchase agreement after defaulting on a payment.

The defendant vendor sought full forfeiture, arguing the deposit was liquidated damages.

The court applied the two-part test for relief from forfeiture, assessing whether the deposit was disproportionate to the vendor's damages and if its retention would be unconscionable.

The court found no unconscionability, noting the purchaser was a foreign buyer who agreed to a larger deposit, had legal representation, and the vendor had granted multiple indulgences.

The deposit amount was deemed commercially reasonable given the circumstances.

Summary judgment was granted in favour of the vendor, allowing full forfeiture of the deposit.

The plaintiffs brought an action against their insurer, TD Insurance, for various claims including bad faith, breach of contract, and mental distress, stemming from an accident in 2003 and subsequent denial of benefits.

Both parties brought motions for summary judgment, and the plaintiffs also sought to strike the defendant's claim.

The defendant's motion for summary judgment was based on the expiry of the applicable limitation periods under the Limitations Act and the Insurance Act.

The court found that all of the plaintiffs' claims were statute-barred, having been commenced some 12 years after the accident and discovery of the claims.

The court dismissed the plaintiffs' allegations of bad faith and lack of production due to insufficient evidence.

Consequently, the defendant's motion for summary judgment was granted, and the plaintiffs' motions were dismissed.

The third party moving parties sought summary judgment dismissing allegations of contributory negligence arising from a motor vehicle collision at an intersection where the opposing driver failed to yield at a stop sign.

The responding defendants argued that issues of speeding and failure to keep a proper lookout created a genuine issue requiring trial.

The court reviewed the discovery evidence, witness testimony, and the defendant’s guilty plea to failing to yield.

It concluded there was no evidence supporting contributory negligence by the driver who had the right of way and that the collision was unavoidable from his perspective.

Summary judgment was granted in favour of the moving parties.

The applicant sought certiorari to quash an order committing him to stand trial following a preliminary inquiry on charges of sexual assault and sexual touching of a person with a disability in a position of trust.

The applicant argued the preliminary inquiry justice erred by committing him for trial despite the absence of direct identification evidence linking him to the alleged perpetrator.

The court reviewed the circumstantial evidence, including the complainant’s description of a staff member named “Terry,” testimony from a staff supervisor who knew the accused, and evidence that the accused had been suspended following the complaint.

Applying the principles in Arcuri and Charemski, the court held that the evidence constituted some evidence of identification sufficient to permit a reasonable jury to infer identity.

The application to quash the committal was therefore dismissed.

The defendants and an added party sought leave to appeal to the Divisional Court from an order permitting the plaintiff to add additional defendants to an action despite the expiry of the limitation period.

The moving parties argued the order conflicted with other jurisprudence and raised issues of general importance concerning the effect of limitation periods on motions to add parties.

The court held that the decision under appeal properly followed binding Divisional Court authority holding that the relevant date for limitation purposes is the service of the motion to add a party, not the date the motion is argued.

Finding no conflicting authority, no reason to doubt the correctness of the order, and no issue of general importance, the court refused leave to appeal.

Following the granting of summary judgment dismissing a civil action against federal parole officers, the court determined the appropriate costs award.

The defendants sought substantial indemnity costs, arguing that the plaintiff’s litigation conduct was vexatious, misleading, and devoid of merit.

The court found that the plaintiff repeatedly attempted to mislead the court, engaged in deceptive conduct, unnecessarily complicated the proceedings, and pursued a claim lacking any legal merit.

Applying the principles of reasonableness, fairness, proportionality, and Rule 57 of the Rules of Civil Procedure, the court held that the conduct justified substantial indemnity costs.

Costs were fixed at $70,000 inclusive of disbursements and HST.

The applicants sought certiorari to quash their committal for trial following a preliminary inquiry involving alleged drug trafficking and firearms offences connected to a stash house.

They argued the preliminary inquiry justice exceeded jurisdiction by relying on speculative inferences to find some evidence of knowledge and control over the contraband necessary to establish constructive possession.

The reviewing court held that the preliminary inquiry justice properly considered the totality and context of the circumstantial evidence, including intercepted communications, surveillance, and the conduct of alleged co-conspirators.

The inferences of knowledge and control supporting constructive possession and conspiracy were reasonably available on the record.

As a result, no jurisdictional error was established and the committal decision stood.

Following a successful medical negligence trial, the plaintiffs sought costs after achieving complete success on liability and damages of $190,000.

The plaintiffs had made a Rule 49 offer of $150,000 inclusive of prejudgment interest prior to trial and argued that the judgment exceeded the offer by 31%, entitling them to substantial indemnity costs from the offer date.

The defendant argued the claimed costs were disproportionate to the damages and that agreeing to damages prior to trial prevented a determination that the offer had been beaten.

The court found the plaintiffs had repeatedly attempted settlement and that the defendant displayed intransigence in proceeding to trial despite the standing offer.

Applying the principles of fairness, reasonableness, and the reasonable expectations of the parties, the court awarded the plaintiffs their full claimed costs and disbursements.

A court-appointed receiver sought directions regarding priority to remaining sale proceeds between a mortgagee and a construction lien claimant.

The mortgagee had advanced funds partly to refinance an earlier mortgage before the lien claimant’s work began.

The court held that advances used to discharge the prior mortgage constituted non‑construction advances under s. 78(3) of the Construction Lien Act and therefore had priority over the lien claim.

The lien claimant failed to establish that its work related to the same improvement financed by the earlier mortgage.

Subrogation principles also supported the mortgagee’s priority position.

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration over 80 mg under s. 253(1)(b) of the Criminal Code.

He argued the Crown failed to prove that breath samples were taken “as soon as practicable” under s. 258(1)(c)(ii), and that police breached his Charter right to counsel under s. 10(b), including by failing to provide a Prosper warning.

The Summary Conviction Appeal Court held the trial judge reasonably concluded that an 18‑minute transport to the police station satisfied the “as soon as practicable” requirement and that police acted reasonably and promptly.

The court further found the appellant was given a reasonable opportunity to contact counsel and did not act diligently in pursuing that right, and that his statement declining to speak with counsel constituted an unequivocal waiver.

The conviction was upheld.

The court determined costs following a prior order declaring the responding party a vexatious litigant under section 140 of the Courts of Justice Act.

Applying Rule 57.01(1) and fairness principles, the court accepted most of the moving party's partial indemnity costs request, including motion, trial, and disbursement components.

The court reduced the pleadings and pre-production component from the amount sought, while finding the remaining claimed amounts fair and reasonable in light of the record and work required.

The responding party's objections were found to be without merit and not responsive to the costs issue.

The court fixed total costs at $29,951.49, inclusive of disbursements and applicable HST, payable within 30 days.

The applicant sought enhanced state funding for counsel of choice in advance of a new criminal trial after the Court of Appeal set aside his prior conviction due to a miscarriage of justice arising from ineffective assistance of counsel and procedural irregularities.

Legal Aid had refused coverage for the retrial, although the Attorney General conceded that Rowbotham funding was required.

The court considered the exceptional circumstances doctrine articulated in R. v. Peterman, under which enhanced funding for counsel of choice may be ordered where necessary to ensure trial fairness.

Given the applicant’s prior wrongful conviction process, hearing impairment during earlier proceedings, loss of faith in defence counsel, impecuniosity, and the extraordinary procedural history of the case, the court found that a fair trial required representation by the proposed counsel.

The Attorney General was therefore ordered to fund counsel at enhanced rates.

The applicant brought a motion seeking an order requiring the respondent to participate in arbitration pursuant to a mediation–arbitration agreement addressing parenting access issues concerning the parties’ child.

The respondent sought to strike or stay the motion on the basis that the applicant was in substantial arrears of child support under a prior Georgia judgment and had failed to comply with other obligations under that order.

The court held that the mediation–arbitration agreement constituted a binding contract entered into with independent legal advice and that the parties were required to comply with its terms.

The alleged breaches of the Georgia judgment were properly addressed in separate proceedings under the Interjurisdictional Support Orders Act and did not justify refusing enforcement of the arbitration agreement.

The respondent’s motion to strike or stay was dismissed and the applicant’s motion compelling arbitration was granted.

The Attorney General sought an order under s. 140 of the Courts of Justice Act declaring the respondent a vexatious litigant and prohibiting further proceedings without leave.

The court reviewed the respondent’s extensive litigation history, including numerous meritless habeas corpus applications, contempt proceedings, collateral attacks on prior decisions, abandonment of proceedings, and repeated unsuccessful appeals.

Applying the principles articulated in Re Lang Michener and Fabian and other authorities, the court found the respondent had persistently instituted proceedings without reasonable grounds and conducted litigation in a vexatious manner.

Considering the cumulative pattern of abusive litigation and misuse of judicial resources, the court concluded that restricting future access to the courts without leave was necessary.

The application was granted and the respondent was declared a vexatious litigant in Ontario courts.

The applicant brought a motion seeking relief against the respondent law firm after funds were paid to the firm by the applicant’s former spouse following notice of a pending non‑dissipation order and after the order was granted.

The applicant argued that the payments of legal fees were part of a deliberate effort to dissipate assets and frustrate her ability to recover a substantial costs award in ongoing family litigation.

The court found that the acceptance of payments by the law firm in the context of the husband’s rapid depletion of assets constituted an abuse of process, particularly given the firm’s knowledge of the pending motion and subsequent court orders.

The court ordered the firm to pay into court the amount of funds received after notice of the non‑dissipation motion and required a limited accounting of legal fees.

Additional costs relating to the earlier motion were also ordered payable by the firm.