Hugh K. O'Connell

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.

Following a judgment declaring the respondent a vexatious litigant, the applicant sought costs of $36,868.25.

The respondent opposed the costs submissions, characterizing them as an abuse of process.

The court found the applicant's claim for partial indemnity costs to be fair and reasonable, noting the substantial preparation required to review the respondent's extensive litigation history.

The court discounted the amount sought for pleadings and fixed total costs payable by the respondent at $29,951.49.

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.

The applicant management company sought an injunction to enforce restrictive covenants against a respondent dentist who formerly practiced at its clinic.

The respondent had removed patient lists upon termination of the management agreement and intended to contact patients.

The respondent argued the covenants were unenforceable as a non-dentist cannot have a proprietary interest in dental patients and the covenants conflicted with his professional obligations.

The court found the applicant had a valid proprietary interest in the clinic's goodwill, the covenants were reasonable and not contrary to public policy, and granted the injunction.