Law Society of Ontario v. O’Herlihy, 2026 ONLSTH 29

LAW SOCIETY TRIBUNAL

HEARING DIVISION

Date: February 11, 2026 Tribunal File No.: 25H-078

BETWEEN:

Law Society of Ontario Applicant

• and -

Shane Edward O’Herlihy Respondent

Before: Malcolm M. Mercer (Chair)

Heard: In writing

Appearances: Tomilayo Ojuile, for the applicant Respondent, self-represented

Summary: O’HERLIHY – Motion for Disclosure – Within the Law Society’s conduct proceeding against him, the Lawyer brought a motion seeking disclosure – The panel concluded that much of the requested disclosure is solicitor-client privileged and need not be disclosed – Other requests were found to be an impermissible fishing expedition – The motion was dismissed.

REASONS FOR DECISION ON MOTION FOR DISCLOSURE

1Malcolm M. Mercer (for the panel):– Shane Edward O’Herlihy seeks further disclosure from the Law Society in this conduct application. Mr. O’Herlihy summarizes the requested disclosure as follows:

• The last known contact information of former LSO investigator Mr. Gord Gregus who I intend to call as a witness in these proceedings.
• The retainer records governing the formal business relationship which exists between the LSO and the law firm Borden Ladner Gervais LLP (“BLG”) dating from the past 10 years. I also seek copies of the Engagement Confirmation, dockets and redacted information found in an ethics report drafted by BLG partner Mr. Dennis O’Connor for the Law Society which is dated February 28, 2025. In addition, I am seeking the details of the confidentiality walls at BLG and the LSO pertaining to their ongoing retainer relationship.

2For the following reasons, I am not satisfied that the requested disclosure is relevant. Much of the requested disclosure is privileged and need not be disclosed for that reason as well.

3To the extent that Mr. O’Herlihy seeks disclosure in respect of a claim of abuse of process, he has not made a legally and factually tenable allegation that is supported in the record.

4This motion is dismissed.

THE ALLEGATIONS OF MISCONDUCT

5In the notice of application, the Law Society alleges that:

1. While representing himself in a lawsuit, Mr. O’Herlihy failed to: a. act with honour and integrity when he launched reputational attacks against the defendants and their lawyers and attempted to extort them, and b. be courteous, civil, and act in good faith when he harassed and sent inflammatory communications to the defendants, their lawyers of record, and an individual.
2. Having been arrested and charged with criminal offences in July 2023 and January 2024 for his conduct during the lawsuit, Mr. O’Herlihy failed to report the charges to the Law Society.

BACKGROUND

6In 2022, Mr. O’Herlihy commenced a personal injury action (the lawsuit) against the City of Toronto and a City employee named Kirk Lawrence. In his lawsuit, Mr. O’Herlihy alleged that Mr. Lawrence assaulted him on September 5, 2021.

7Borden Ladner Gervais LLP (BLG) acted for the defendants in this lawsuit.

8In 2024, Mr. O’Herlihy was declared a vexatious litigant by Justice Chalmers in City of Toronto v O’Herlihy, 2024 ONSC 4055. In his reasons, Justice Chalmers found that:

• Mr. O’Herlihy persistently and without reasonable grounds conducted the lawsuit in a vexatious manner. He harassed the defendants to the lawsuit and forced them to incur unnecessary legal costs. He harassed and threatened the defendants’ lawyers. His conduct resulted in the use of an inordinate amount of judicial resources.
• He sent 392 emails, voicemails and other correspondence over a 318-day period. Many of the communications were abusive.
• The emails and voicemails were sent for purposes other than what was required to address the issues in the lawsuit. It is clear from the content of the communications that Mr. O’Herlihy was pursuing a strategy of intimidation and harassment in the hope that the defendants would offer to settle the lawsuit.
• The most egregious example of Mr. O’Herlihy’s vexatious and abusive conduct is his communication to the daughter of a lawyer at BLG. She is a lawyer at a different law firm and had no professional involvement in the lawsuit. In the voicemail left with her, Mr. O’Herlihy threatened to disclose information about her father that he asserted would be harmful and embarrassing to her family unless she could get her father to “at the very least remove himself as solicitor of record”.
• Mr. O’Herlihy did not deny sending the emails or voicemails. He provided no excuse for his conduct. He conceded that leaving the voicemails was “bad judgment”. However, he made no apology and failed to demonstrate any contrition. In fact, he “doubled down” on his conduct and stated that he will pursue this case for “years and years” and that there will be “no peace in this matter” unless the City drops its no liability position in the Action. He also stated in his oral submissions that the BLG lawyer “asked for it” and used his daughter and wife as “tools in a coverup”.
• Mr. O’Herlihy used the litigation process to abuse, harass and threaten the defendants. Mr. O’Herlihy’s approach was to increase the costs and inconvenience of the litigation to such a degree that the defendants would prefer to make a settlement offer than continue to defend the Action. The strategy was not successful in this case. Although it must have been difficult for the defendants and their lawyers to face the daily barrage of offensive and threatening emails and voicemails, they did not succumb to the pressure exerted by Mr. O’Herlihy.
• In addition to increasing the cost and inconvenience to the defendants and their lawyers, Mr. O’Herlihy’s conduct consumed a significant amount of judicial resources. As a result of the voluminous emails, voicemails, requests to admit, and written interrogatories, the record in the Application exceeded 2,000 pages.
• On the record before him, Mr. O’Herlihy was a vexatious litigant. The evidence was overwhelming. In hundreds of emails and voicemails Mr. O’Herlihy acted in an abusive, threatening and wholly inappropriate manner.

9In addition to declaring Mr. O’Herlihy a vexatious litigant and making related orders, Justice Chalmers dismissed the lawsuit as well as another action against the Toronto Police Service.

10According to the investigation report which led to this application:

• On June 24, 2023, Mr. O’Herlihy was arrested and charged with criminal harassment contrary to the Criminal Code of Canada. The offence dates were between September 6, 2021, and June 23, 2023. The reported victim in these incidents was the individual defendant in the lawsuit.
• On June 27, 2023, Mr. O’Herlihy was arrested and charged with publishing defamatory libel contrary to the Criminal Code of Canada. The offence dates were between June 23 and June 27, 2023. The victims in this matter were the individual in the lawsuit and a BLG lawyer.
• On January 13, 2024, Mr. O’Herlihy was arrested and charged with two counts of extortion, criminal harassment, and harassment of a justice system participant, involving the daughter of a BLG lawyer and a BLG lawyer.
• Mr. O’Herlihy did not report these criminal charges to the Law Society as required by the Rules of Professional Conduct.

INTENDED FURTHER MOTIONS AND PROCEEDINGS

11In his affidavit, Mr. O’Herlihy testifies that:

• Once he finishes seeking further disclosure from the LSO in this motion, he plans to bring a subsequent set of motions seeking additional third-party records from the Crown Attorney Office, the Toronto Police, and the City of Toronto.
• After the third-party motion decisions have been rendered, he will then bring another motion seeking a stay of these proceedings due to the existence of conditions which legally bar him from having any direct contact with BLG given that his criminal matter is ongoing.
• At some point before the official hearing date, he may be bringing a motion to get a publication ban and/or a sealing order issued respecting several sets of private records which are currently found in the LSO’s disclosure package.
• He may also bring a motion seeking to exclude the purportedly improper telephone messages and e-mails that he sent to BLG due to litigation privilege, settlement privilege, and the deemed undertaking rule.
• He may also seek judicial review on account of a breach of procedural fairness during an investigative interview which took place on September 26, 2024 and violation of his right to remain silent about his criminal charges.
• He may seek a stay of proceedings pending judicial review by the Divisional Court.

THE TEST FOR FURTHER DISCLOSURE

12Tribunal Rule 10.1 provides that:

The Law Society must disclose to the licensee or licence applicant, within a reasonable period of time following the filing of the application, all potentially relevant documents in its possession, except for those it is not disclosing due to privilege.

13It is well established that the extent of the obligation to disclose is as follows from R. v Stinchcombe, 1991 CanLII 45 (SCC) at para 29:

… all relevant information must be disclosed subject to the reviewable discretion of the Crown. The material must include not only that which the Crown intends to introduce into evidence but also that which it does not. No distinction should be made between inculpatory and exculpatory evidence.

as cited in Law Society of Upper Canada v Savone, 2016 ONSC 3378 at para 50.

14Law Society of Upper Canada v James, 2017 ONLSTA 16 is the leading disclosure case at the Tribunal. In James, the appeal panel stated with approval at paras 32-33 that:

In Law Society of Upper Canada v. Savone, 2016 CanLII 33941 (ON SCDC), Justice Dambrot concisely summarized the Law Society’s disclosure obligation at para. 9 by analogy to the Stinchcombe case:

The Hearing Panel acknowledged that the requirement and extent of disclosure in relation to conduct proceedings was governed by the principles in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. In Stinchcombe, the Supreme Court held that in a criminal prosecution the Crown has a duty to disclose not only all of the material that it proposes to use at trial, but also evidence that might assist the accused, whether or not the prosecution proposed to adduce it, subject to the rules of privilege. While the prosecution must err on the side of inclusion, it need not produce what is clearly irrelevant.

At para. 23 of its reasons, the hearing panel cited R. v. Taillefer; R v. Duguay, 2003 SCC 70, where the Supreme Court described the standard as “…a reasonable possibility that the …information could [be] used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence…”¹

15It is important to recognize that disclosure of documents is required either where there is relevance to a defence or where there is relevance to making a decision which could affect the conduct of the defence. The standard is “a reasonable possibility” of utility.

16Nevertheless, and as stated in Speck v Law Society of Ontario, 2020 ONLSTH 51 at para 34:²

Requests for disclosure cannot be allowed to encourage “fishing expeditions” or unduly prolong proceedings. A party seeking production on the basis that the prosecution has engaged in bad faith or abuse of process must demonstrate a legally and factually tenable allegation that is supported in the record. A “tenable allegation” means something more than a bare assertion or mere speculation. There must be some “concrete evidence or proof” to support the allegation that the Law Society engaged in an abuse of process.

LAST KNOWN CONTACT INFORMATION OF MR. GREGUS

17Mr. O’Herlihy seeks disclosure of the last known contact information for Gord Gregus, a former Law Society employee.

18In October 2023, an investigation was instructed arising from the June 2023 criminal charges filed against Mr. O’Herlihy. The Law Society’s position is that the charges were not reported to the Law Society by Mr. O’Herlihy.

19While not in evidence, it appears that investigator Gord Gregus sent a letter to Mr. O’Herlihy dated October 23, 2023. Mr. Gregus then spoke with Mr. O’Herlihy by telephone on October 31, 2023. Mr. Gregus’ note of the call includes the following:

Asked how the LSO found out about the charges. Staff member found thru court website.

Would not admit being charged but said if he had known he was required to report them he would have. Asked my opinion lack of knowledge of the Bylaw 8 constituted a good enough excuse. I said I could not answer that in my position, but that the two criminal charges were far more serious.

He asked what I required at this point and I asked if he had seen the case requirement for written reps and he had. I repeated them now.

He said he wanted to discuss this with counsel and may retain counsel. Asked for an additional month to respond. I agreed to Dec. 15, 2023 for written reps.

Said, if he was charged, he would be exonerated. Asked what LSO does when charges are dismissed.

20While the call was recorded, the recording was deleted. The file note states “Recorded audio was mistakenly deleted”.

21Mr. O’Herlihy wrote to Mr. Gergus on January 5, 2024. With respect to reporting the charges, he stated that:

I did not report this matter to the LSO because I was not aware of this obligation. Considering how minor the charges are and how I think they will eventually be withdrawn, I did not treat the issue with any form of urgency either.

22As noted above, Mr. O’Herlihy was arrested and further charged on January 13, 2024. The Law Society’s position is that these further charges were not reported to the Law Society.

23On February 13, 2024, Mr. Gergus messaged:

Good morning Shane. Just following up on your charges.

Have there been any trial or pre-trial dates set yet? What is the next court date?

24Mr. O’Herlihy responded:

Please note that I have recently retained criminal defence counsel in this matter. There is no trial or pre-trial date set yet. The next court date is February 22, 2024.

25In his affidavit for this motion, Mr. O’Herlihy describes this letter saying, “That same day, I sent Mr. Gregus a reply advising him of my next court date for all my criminal matters (which include the January 2024 charges) and confirming that no pre-trial or trial date had yet been set”.

26Notably, the letter does not mention the January 2024 charges at all.

27Mr. O’Herlihy further states in his current affidavit, “I will argue in defence of my alleged non-reporting of my criminal charges that my February 13, 2024 correspondence to Mr. Gregus did, in fact, address the status of my new January 2024 charges to the LSO.”

28On March 19, 2024, Mr. Gregus messaged:

I am writing to advise you that I am discontinuing this investigation and closing the file pending the outcome of the concurrent proceedings relating to your criminal charges. The same or similar issues were raised in those concurrent proceedings as those raised in the LSO complaint.

Having assessed the circumstances and having weighed the broader public interest mandate of the Law Society, I have determined that the above noted circumstances are present and that closure of the file is appropriate at this time.

Please continue to provide the Law Society timely updates as to the status of your ongoing criminal court proceedings. These updates should be provided to Saba Dimech, Law Clerk, Investigation Services, via email sdimech@lso.ca.

Once a final determination is made in the criminal proceedings, the Law Society will decide if it is appropriate to re-open the investigation to consider a regulatory response to issues that require further investigation or in the event that the Law Society receives additional information that requires the matter to be reopened.

29Mr. O’Herlihy’s evidence is that:

Mr. Gregus’s March 19, 2024 correspondence suggests that the LSO did not require any more updates from me and that they already had sufficient information on file about the status of my ongoing criminal proceedings.

30The allegation is that Mr. O’Herlihy failed to report the June 2023 charges and the January 2024 charges. His January 5, 2024 letter acknowledges his failure to report the June 2023 charges and provides an explanation.

31As to the January 2024 charges, Mr. O’Herlihy’s position appears to be that he reported the January 2024 charges in his short response of February 13, 2024. His response speaks for itself.

32All of the dealings between Mr. O’Herlihy and Mr. Gregus were in writing except for the October 31, 2023 telephone call. In that regard, Mr. O’Herlihy testifies that:

• Both Mr. Gregus and the LSO subsequently confirmed that the audio of the October 31, 2023 Gregus-O’Herlihy telephone call was “accidently” deleted. Had that audio been properly retained, it likely would have assisted me in the defence of my charges because it would have indicated that I was cooperating with the LSO and that I was giving them good reasons as to why I did not report my first set of criminal charges immediately.
• Moreover, some of the things Mr. Gregus wrote down in his October 31, 2023 report summarizing our telephone conversation I do not agree with as well as his characterization of how I behaved during the call. If I had access to the actual recording of the call itself, I would be in a better position today to challenge him and the LSO about these characterizations. The fact that audio no longer exists to support my position that some of the things he said in his report were not correct could support both a spoliation argument and may be relevant to the issue of credibility.
• Furthermore, I want Mr. Gregus to give testimony about his memory of the October 31, 2023 telephone call and if it jives specifically with everything he had to say about the call shortly afterwards in his written memo. He should testify that I was cooperative with the LSO and was giving them the information that they needed about my criminal litigation on an ongoing basis. He may also be able to address the culture of sloppiness going on with my investigation at the LSO which I respectfully submit has been taking place ever since Tom Dingwall took over my file after Mr. Gregus retired.

33However, Mr. O’Herlihy admits in his January 2024 letter that he did not report the June 2023 charges and explains that he did not report because he did not know that he was required to do so. Mr. Gregus’ note of the telephone call states that Mr. O’Herlihy said that, if had known he was required to report the charges, he would have done so. It does not appear that the failure to report the June 2023 charges is disputed. Mr. O’Herlihy’s stated reason for his failure in the phone call and the letter appears consistent. There is no air of reality of a claim of spoliation given that Mr. Gregus’ note of what Mr. O’Herlihy said in the telephone call does not appear to be materially different than what Mr. O’Herlihy said subsequently in writing. There is no air of reality to the claim that a mistaken deletion of a recording by Mr. Gregus could be evidence of “a culture of sloppiness” since Mr. Gregus retired.

34On the evidence, I see no basis to require disclosure of Mr. Gregus’ contact particulars.

INFORMATION REGARDING BLG

35With respect to BLG, Mr. O’Herlihy seeks the following disclosure:

Regarding retainer of BLG by the LSO

1. A copy of all retainer agreements between the LSO and BLG dating from the past 10 years, including all revisions and addendums to this agreement.
2. A copy of all business contracts, monetary settlement documents and any other formal documents which define elements of the retainer agreement between the LSO and BLG dating from the past 10 years.
3. A copy of all financial documents outlining the payments made by the LSO to BLG pursuant to its ongoing retainer with BLG dating from the past 10 years.
4. A copy of all dockets describing the fees and disbursements billed by BLG to the Law Society over the past 10 years, with legitimately privileged elements of those dockets redacted.
5. A list of all ongoing and closed files pursuant to the LSO’s retainer with BLG dating from the past 10 years.
6. A list of all BLG partners, associates and staff who worked on LSO litigation files pursuant to their retainer over the past 10 years.
7. A list of all LSO lawyers, paraprofessionals, benchers, elected officials and other staff – both past and present – who were involved in litigation files in which BLG provided the LSO with representational services over the past 10 years.
8. A list of all LSO employees who operated as business liaisons with BLG and negotiated with BLG to develop the legal retainer agreement(s) between both parties.

Ethical walls and confidentiality screens

9. The details of the ethical walls and confidentiality screens which govern the business relationship between BLG and the LSO over the past 10 years including the names of involved parties at both the LSO and BLG.

The O’Connor Report

10. A completely unredacted version of the O’Connor Report which lists the names of the LSO employees referenced in that report.
11. A copy of BLG’s Engagement Confirmation with the LSO which is dated December 5, 2024 which was authorized by a Special Committee of the LSO’s Convocation, which also occurred on December 5, 2024. This document serves as the LSO’s special individualized retainer agreement with BLG which gave birth to the O’Connor Report.
12. Copies of all proposals, negotiation letters and engagement letters exchanged between BLG and the LSO which resulted in the formation of the Engagement Confirmation.
13. A copy of the LSO’s notes pertaining to Mr. O’Connor’s two meetings with the LSO’s Special Committee which took place on December 13, 2024 and January 30, 2025.
14. A copy of the minutes of the Special Committee of the LSO’s Convocation dated December 5, 2024 authorizing an ethics audit of the Law Society.
15. A copy of the minutes of the LSO Convocation Meeting dated March 27, 2025 authorizing public release of the O’Connor Report.
16. A copy of all LSO documents which Mr. O’Connor and other BLG lawyers reviewed during the currency of BLG’s investigation of the LSO which resulted in the release of the O’Connor Report.
17. Copies of all materials provided to Mr. O’Connor by the LSO Special Committee.
18. Copies of all records provided to LSO officials by Mr. O’Connor in advance of and during the interview process.
19. A copy of LSO executive assistant Ms. Zelia Pereira’s complete file regarding the O’Connor Report, including copies of all records she provided to Mr. Dennis O’Connor.
20. Copies of all correspondence sent from Mr. O’Connor and other BLG lawyers to LSO officials scheduling interviews in preparation for the O’Connor Report.
21. Copies of all notes drafted by BLG legal student Ms. Grace Sarabia provided to LSO officials summarizing interviews conducted by Mr. O’Connor between December 5 and December 30, 2024.
22. Copies of all LSO documents reviewed by Mr. O’Connor during his interviews of LSO officials which took place between December 5 and December 30, 2024.
23. A copy of the “accompanying privileged and confidential brief” which Mr. O’Connor references in Page 9 of his report.
24. Copies of all attachments, appendixes and addendums to the O’Connor Report, regardless of whether they have been revealed to the public. This would include Appendix “A” as referenced in Page 10 of the O’Connor Report.
25. A copy of Mr. O’Connor’s separate report about the results of his investigation of the LSO which is included in Appendix “A” of the O’Connor Report.
26. A list of all financial documents outlining the payments made by the LSO to BLG for services rendered in the O’Connor Report.
27. A copy of all dockets describing fees and disbursements billed by BLG to the Law Society for services rendered in the O’Connor Report, with legitimately privileged elements of those dockets redacted.
28. A list of all BLG partners, associates and staff who worked on the O’Connor Report.
29. The details of the ethical walls and confidentiality screens which govern the business relationship between BLG and the LSO pursuant to the O’Connor Report, including the names of involved parties at both the LSO and BLG.

36Any dealings between the Law Society and BLG clearly have nothing to do with whether Mr. O’Herlihy was criminally charged and whether he reported being criminally charged.

37Any dealings between the Law Society and BLG have nothing to do with whether Mr. O’Herlihy:

• Launched reputational attacks against the defendants in the lawsuit and their lawyers, and attempted to extort them.
• Harassed and sent inflammatory communications to the defendants, their lawyers of record, and the individual.

38Dealings between the Law Society and BLG do not have any reasonably possible relevance to any defence to the allegations made against Mr. O’Herlihy in this application.

39In his notice of motion, Mr. O’Herlihy states that he ”requested to know the extent of the LSO’s business relationship with BLG and how that relationship could affect [his] case” and that there was the suggestion of “the existence of an appearance that the LSO is giving their legal contractor BLG favourable treatment while consequently I am the victim of unfair bias”.

40It is clear that the Law Society has retained BLG from time to time over the years, including for example Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, Law Society of Ontario v. Marusic and Martini, 2022 ONLSTH 55, and the O’Connor Report.

41However, the suggestion that the use of BLG by the LSO as counsel has anything to do with the allegations made against Mr. O’Herlihy in this application is without any apparent foundation, particularly in light of the scathing decision of Justice Chalmers in Toronto v O’Herlihy, above, and the criminal charges filed against Mr. O’Herlihy.

42In effect, Mr. O’Herlihy seeks to justify disclosure on the basis of alleged abuse of process without there being a legally and factually tenable allegation of abuse of process. I find these requests to be an impermissible “fishing expedition” and further find that requiring the requested disclosure would unduly prolong proceedings.

43As well and significantly, much of what sought is protected by solicitor-client privilege. The disclosure obligation does not extend to privileged information and documents.

44I further observe that the specific requests for disclosure, most particularly relating to the O’Connor Report and the work leading up to it starting in December 2024, are so disconnected from anything to do with this case as to be concerning. Mr. O’Herlihy submits that access to information relating to the O’Connor Report will assist him in showing that Mr. O’Connor’s reputation is such that Mr. O’Herlihy was justified in seeking his assistance. However, the allegation made against Mr. O’Herlihy is of reputational attacks, attempted extortion, harassment, and inflammatory communications. There is no apparent connection between Mr. O’Connor’s reputation and his work for the Law Society and Mr. O’Herlihy’s alleged misconduct.

45I see no basis to require disclosure as requested regarding BLG, including in respect of the O’Connor Report.

ORDER

46I make the following order:

1. This motion is dismissed.
2. If the Law Society seeks costs, it may file short written submissions by February 25, 2026, to which Mr. O’Herlihy may respond by by March 4, 2026.
3. I further direct that the scheduling coordinator promptly schedule a PMC to address the scheduling of further motions that Mr. O’Herlihy may wish to bring.

Footnotes

1. 1Further, Law Society of Ontario v Mazo, 2023 ONLSTH 119 at paras 29-30.
2. 2Further, R. v Ahmad, 2008 CanLII 27470 at para 42, Law Society of Upper Canada v Natale, 2011 ONLSHP 192 at paras 7-8, Boldt v College of Immigration and Citizenship Consultants, 2023 FC 802 at para 87, and Law Society of Ontario v Mazo, 2024 ONLSTH 59 at paras 14‑15.