Jonathan Thoburn

This endorsement addresses a motion by the City of Toronto and Adam Vaughan, creditors of 1631651 Ontario Inc., seeking an order that the assignment in bankruptcy does not take precedence over a prior order for payment and directing the Accountant to release funds to their counsel.

The court reviews the application of section 70(1) of the Bankruptcy and Insolvency Act and considers relevant case law from other jurisdictions and Ontario.

The motion is adjourned to allow further submissions on Ontario authorities.

The City of Toronto sought an order declaring Shane O’Herlihy a vexatious litigant under s. 140(1) of the Courts of Justice Act due to his persistent and abusive conduct during litigation.

This conduct included sending numerous threatening emails and voicemails to opposing counsel and their families, and filing excessive and irrelevant court documents.

The court granted the application, finding O’Herlihy's conduct to be vexatious and an abuse of process, and imposed strict conditions on his future ability to initiate or continue legal proceedings, including requiring leave of the court and representation by a licensed lawyer.

The court also awarded substantial costs against him for the dismissed actions.

The appellant, injured in a prisoner transport van, sued for negligence alleging design deficiencies.

After settling with the Province, the appellant pursued the driver and the City of Toronto, primarily seeking punitive damages for alleged callous disregard for prisoner safety.

The trial judge dismissed the claim, finding no conduct warranting punitive damages.

The Court of Appeal upheld the trial judge's decision, finding no error in the assessment of the punitive damages claim or the factual findings, and dismissed the appeal with costs.

The appellant appealed the Superior Court's dismissal of three of his actions under Rule 2.1.01 of the Rules of Civil Procedure, on the grounds that they were frivolous, vexatious, or an abuse of process.

The motion judge also granted ancillary relief regarding fee waivers.

The Court of Appeal affirmed the motion judge's findings and conclusions, agreeing that the actions were clearly frivolous, vexatious, and an abuse of process, and that the fee waiver determination was a legitimate exercise of jurisdiction.

All three appeals were dismissed, and the appellant was ordered to pay costs.

The representative plaintiffs in two class actions against the Toronto Police Services Board for wrongful arrest and detention during the 2010 G20 Summit sought court approval for a proposed settlement and class counsel fees.

The settlement included up to $16.5 million in financial compensation, a public acknowledgement of wrongdoing, commitments to reform policing of public demonstrations, and expungement of arrest records.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the significant non-monetary components and the risks of proceeding to trial.

The court also approved class counsel's legal fees, which amounted to approximately 28 percent of the recovery, as fair and reasonable.

The appellant challenged the Toronto Police Services' (TPS) authority to impose bag searches as a condition of entry into Allan Gardens during the 2010 G20 summit, alleging tortious conduct and Charter breaches.

The Court of Appeal found that the TPS lacked legal authority, as agents of the City under the Trespass to Property Act, to create such a condition.

The court held that the police conduct infringed the appellant's freedom of expression (s. 2(b)), right against arbitrary detention (s. 9), and right against unreasonable search and seizure (s. 8) under the Charter.

The appeal was allowed, and the appellant was awarded modest Charter damages.

Following the dismissal of the plaintiff's action for alleged Charter breaches, the parties made written submissions on costs.

The plaintiff argued for no costs on the basis that the case was pursued in the public interest.

The defendant sought a modest costs award, noting the plaintiff's decision to traverse the action from Small Claims Court to the Superior Court and his rejection of two Rule 49 offers to settle.

The court awarded the defendant $25,000 in costs, inclusive of HST and disbursements, taking into account the early offers to settle and the plaintiff's assumption of risk.

The defendant, Toronto Police Services Board, moved for summary judgment to dismiss an action brought by the plaintiffs, Riaz Bagha and Sajidha Bagha.

The plaintiffs' action alleged negligent investigation, false arrest and imprisonment, malicious prosecution, and breach of the Canadian Charter of Rights and Freedoms, stemming from extortion charges laid against them that were later withdrawn.

The defendant argued that peace bonds entered into by the plaintiffs were dispositive of the claims and that the investigating officer had reasonable and probable grounds.

The court found that peace bonds do not automatically bar malicious prosecution or negligent investigation claims, requiring a "Mammoliti analysis" into the underlying reasons.

Significant factual disputes existed regarding the investigation's thoroughness, the accuracy of police synopses, and the circumstances surrounding the peace bonds.

The court concluded that there were genuine issues requiring a trial and that the summary judgment process was not suitable for a fair and just determination on the merits, dismissing the defendant's motion.

The plaintiff, Luke Stewart, sued the Toronto Police Services Board for alleged violations of his Charter rights (freedom of expression and peaceful assembly, arbitrary detention, unreasonable search and seizure) during the 2010 G20 summit.

Stewart was briefly detained and his backpack searched after he breached a police perimeter at Allan Gardens, which had been established with a condition of entry requiring bag inspections for weapons due to security concerns.

The court found that the police acted lawfully and reasonably under the Trespass to Property Act and their common law powers to maintain public safety.

It concluded that Stewart's Charter rights were not infringed, and even if they were, such infringements were reasonable and demonstrably justified in the unique circumstances of the G20 protest demonstrations.

The action was dismissed.