Court File and Parties

COURT FILE NO.: CV-23-00707336-0000 DATE: 20240722

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CITY OF TORONTO Applicant – and – SHANE O’HERLIHY Respondent

COUNSEL: J. Thoburn and B. Fuhrmann, for the Applicant S. O’Herlihy, Self-Represented

HEARD: June 5, 2024, by video conference

REASONS FOR DECISION

Chalmers, j.

OVERVIEW

[1] The City of Toronto (City) brings this Application for an order declaring Shane O’Herlihy a vexatious litigant within the meaning of s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the Act).

[2] Mr. O’Herlihy is a licenced lawyer with the Law Society of Ontario (LSO). On October 5, 2022, Mr. O’Herlihy commenced a personal injury action against the City and a City employee, Kirk Lawrence; Court File No.: CV-22-00688242-0000 (the Action). The statement of claim consists of 110 paragraphs. Mr. O’Herlihy alleges that on September 5, 2021, he was assaulted by Mr. Lawrence at the Jack Layton Ferry Terminal. Mr. Lawrence was a security guard who worked for the Corporate Security Division of the City.

[3] The statement of defence of the City and Mr. Lawrence was delivered on March 1, 2023. Jonathan Thoburn and Benjamin Fuhrmann of Borden Ladner Gervais LLP (BLG) are counsel of record for the defendants in the Action. Kevin McGivney is a lawyer at BLG who communicated with Mr. O’Herlihy on a single occasion when Mr. Thoburn was on parental leave.

[4] The Applicant states that since the delivery of the statement of defence, Mr. O’Herlihy conducted the litigation in a vexatious and abusive manner. Over the course of 318 days, Mr. O’Herlihy sent a combined total of 392 emails, voicemails and letters to counsel for the defendants in the Action as well as a number of individuals at BLG who had no involvement in the Action, and personnel at the City and the Toronto Police. The Applicant argues that Mr. O’Herlihy made threats to embarrass the lawyers and their families in an attempt to obtain a settlement in the Action.

[5] For the reasons set out below, I grant the relief sought and declare that Mr. O’Herlihy is a vexatious litigant.

PROCEDURAL HISTORY

[6] The City caused the Notice of Application to be issued on October 6, 2023. The City sought, among other things, a declaration that Mr. O’Herlihy is a vexatious litigant pursuant to s. 140 of the Act. The grounds of the Application include the following:

• Mr. O’Herlihy made inappropriate submissions in scandalous and vexatious Requests of Admit, as well as a significant number of emails and voice mails that contain explicit and implicit threats, and offensive and/or irrelevant expressions and language;
• Mr. O’Herlihy made threats against the lawyers who have acted against him in the Action for the implied and occasionally express purpose of obtaining a settlement in the Action;
• Mr. O’Herlihy embarked on a scandalous, vexatious and defamatory public campaign against Mr. Lawrence, Mr. McGivney and BLG;
• Mr. O’Herlihy commenced a Twitter campaign in attempts to defame Mr. McGivney, Mr. Lawrence and BLG;
• Mr. O’Herlihy attended BLG’s offices on multiple occasions to distribute and post scandalous, vexatious and defamatory flyers;
• Mr. O’Herlihy made threats that his action would detrimentally impact the families of Mr. Thoburn, Mr. McGivney and a former lawyer at BLG.

[7] The Application Record is dated November 16, 2023. The record includes the affidavit of Kevin McGivney sworn November 14, 2023. Exhibit “C” to the affidavit are 215 emails that had been sent by Mr. O’Herlihy between March 1, 2023 and October 27, 2023, and 83 voicemail recordings that were left by Mr. O’Herlihy between March 1, 2023 to October 8, 2023. The Supplementary affidavit of Mr. McGivney was sworn March 22, 2024. Attached to the Supplementary affidavit, are additional emails and voicemails from Mr. O’Herlihy.

[8] The matter first came before me in Civil Practice Court (CPC) on December 13, 2024. The applicant was seeking a date for the hearing of the Application. Mr. O’Herlihy was not in attendance. Counsel for the applicant advised the Court that Mr. O’Herlihy had contacted him and stated he was too ill to attend court. Mr. O’Herlihy also advised counsel that he wished to bring a cross-motion under s. 137.1 of the Act (anti-SLAPP motion). I convened a case conference.

[9] The case conference was scheduled for January 26, 2024. Mr. O’Herlihy was not in attendance. Counsel for the applicant advised that on January 13, 2024, Mr. O’Herlihy was arrested and charged with criminal harassment and extortion. The charges arose from a voicemail Mr. O’Herlihy left with Mr. McGivney’s daughter. The terms of his release order included that he is not permitted to communicate with any of the lawyers retained by the City.

[10] Counsel for the applicant also advised that on January 23, 2024, a lawyer who stated that he was retained by Mr. O’Herlihy delivered two Notices of Discontinuance in the actions Mr. O’Herlihy had brought against the City (CV-22-00688242-0000 – the Action) and against the Toronto Police Services (CV-23-00702073-0000 – the Police Action). Mr. O’Herlihy requested an adjournment of the case conference. Counsel for the City sought as a term of the adjournment an order staying the Action and the Police Action. By endorsement dated January 26, 2024, I adjourned the case conference to February 9, 2024. I stayed the Action and Police Action pending the return of the case conference.

[11] On the return of the case conference on February 9, 2024, Mr. O’Herlihy was again not in attendance. He continued to be subject to the terms of his release order that prevented him from having any communications with counsel for the City. It had been proposed that the bail terms be varied to permit Mr. O’Herlihy to participate in the Application. Counsel for the complainant was prepared to consent to a variation of the release order. The case conference was adjourned to March 1, 2024. In my endorsement dated February 9, 2024, I stated that it was expected that the bail would be varied by that date to allow Mr. O’Herlihy to attend the case conference.

[12] Mr. O’Herlihy failed to attend the return of the case conference on March 1, 2024. Although counsel for the complainant was prepared to consent to a variation of the release terms, Mr. O’Herlihy did not seek a variation. In my endorsement dated March 1, 2024, I stated that Mr. O’Herlihy is a litigant in a civil proceeding and is required to take the steps necessary to participate in the process. He had been given several opportunities to attend the case conferences and failed to do so. If it was his position that the terms of the release order prevented him from attending the case conference, he was obligated to take steps to have the terms of the release order varied to allow him to participate. I proceeded with the case conference in his absence.

[13] Mr. O’Herlihy had filed Notices of Discontinuance with respect to the Action and the Police Action. The City was seeking an order dismissing the Action and the Police Action with costs. The City was seeking costs of $15,000 for the Action and $5,000 for the Police Action. By endorsement dated March 1, 2024, I dismissed the Action with costs fixed in the amount of $15,000. I also dismissed the Police Action with costs fixed in the amount of $5,000. At the case conference I scheduled the vexatious litigant Application for April 29, 2024 and established a timetable. Pursuant to the timetable, Mr. O’Herlihy was required to deliver his factum by April 24, 2024. Mr. O’Herlihy did not deliver a factum for the Application.

[14] On March 6, 2024, Mr. O’Herlihy sent a letter to the Court expressing his view that the cost orders were improper because he had not received the City’s costs submissions before the case conference. He also sought an adjournment of the vexatious litigant Application to a date after his criminal charges had been resolved. I convened a case conference for March 21, 2024.

[15] At the case conference on March 21, 2024, I set aside the cost awards and ordered that the issue of the costs for the discontinuance of the Action and Police Action would proceed in writing. I established a timetable for the cost issue. I received the submissions of the defendants in the Action and Police Action on April 5, 2024. Mr. O’Herlihy delivered his cost submissions on April 13, 2024.

[16] At the case conference on March 21, 2024, Mr. O’Herlihy stated that he intended to bring a motion to remove BLG as solicitor of record for the Applicant and a recusal motion. I ordered that the removal motion and recusal motion be heard at the commencement of the vexatious litigant Application on April 29, 2024. I established a timetable for Mr. O’Herlihy’s motions.

[17] On April 24, 2024, Mr. O’Herlihy’s brought an anti-SLAPP motion pursuant to s. 137.1 of the Act. At his request the matter was placed on the CPC list for April 23, 2024. Mr. O’Herlihy did not attend. I did not schedule the anti-SLAPP motion and stated that Mr. O’Herlihy may make his request for a hearing date on the return of the vexatious litigant Application on April 29, 2024.

[18] On the return date of the Application, Mr. O’Herlihy requested an adjournment. He stated that he could not proceed with the Application because the City had refused to answer the written interrogatories. Mr. O’Herlihy had submitted a 121-page document with 2,374 cross-examination questions. As I noted in my endorsement dated April 30, 2024, there were 100s and 100s of questions that related to persons not involved in this proceeding. The questions involved the individuals’ family members, sexual preferences, clothing choices and religious beliefs. The written interrogatories were largely irrelevant, inflammatory and inappropriate. I denied the adjournment request.

[19] The recusal motion was argued on April 29, 2024. I dismissed the recusal motion. The reasons were provided by endorsement dated May 1, 2024.

[20] On the return of the Application, Mr. O’Herlihy advised the Court that he is pursuing the anti-SLAPP motion, to dismiss the vexatious litigant Application on the basis that it unduly limits his freedom of expression on matters in the public interest. By endorsement dated May 1, 2024, I provided notice to the parties that I was considering making an order under R. 2.1 summarily dismissing the motion. The parties were invited to file written submissions with respect to the R. 2.1 motion. By endorsement dated May 28, 2024, I found that the anti-SLAPP motion brought by Mr. O’Herlihy was frivolous, vexatious or otherwise an abuse of process.

[21] The vexatious litigant Application was argued on June 5, 2024.

FACTUAL BACKGROUND

Mr. O’Herlihy’s Correspondence

[22] Between the date the statement of defence was delivered on March 1, 2023 and January 12, 2024 (a 318 day period), Mr. O’Herlihy sent a combined total of 392 e-mails, voicemails and correspondence to counsel for the defendants in the Action, and to many individuals who had no involvement in the Action. The City states that Mr. O’Herlihy’s communications were offensive, irrelevant, and inappropriate.

[23] Mr. O’Herlihy concedes that he sent the correspondence and left the voicemails relied on by the City. In his oral submissions on the Application, Mr. O’Herlihy stated that the voice mails were “inappropriate” and “voluminous”, and that he had exhibited “bad judgment”. However, he states that he was the victim of an assault and was frustrated by the lack of progress in the Action.

[24] The communications from Mr. O’Herlihy reached a peak in June 2023. Following a case conference on July 31, 2023, Associate Justice Brott ordered that all communication regarding the Action shall be only between Mr. O’Herlihy, Mr. Thoburn and Mr. Fuhrmann and that all communication be respectful and professional. In the 166 days between the date of the Brott Order and January 12, 2024, Mr. O’Herlihy sent at least 143 emails and voicemails regarding the Action to persons other than Mr. Thoburn and Mr. Fuhrmann.

[25] In oral argument, counsel for the Applicant played several voicemails that were left by Mr. O’Herlihy. The voicemails relied on by the Applicant are a small sample of the total voicemails left by Mr. O’Herlihy. The transcripts of the voicemails played at the hearing are set out in full in Schedule A attached to these Reasons.

[26] In the voice mails, Mr. O’Herlihy made abusive and insulting comments about the defendants, and the defendants’ lawyers. At times he raised his voice and sounded angry and belligerent. Mr. O’Herlihy stated that unless the defendants settled the Action that he would take steps that would cause harm and embarrassment to the City and its lawyers. On December 23, 2023, Mr. O’Herlihy left a voice mail for Mr. McGivney’s daughter, who is an associate lawyer at another law firm. She has no involvement in the Action. In the voicemail, Mr. O’Herlihy states that unless she can “get [her father] to at the very least to remove himself as solicitor of records”, he will disclose information that “that could destroy families” and “will involve your mother and may involve other members of your family”.

[27] A report was made to the police and in January 2024, Mr. O’Herlihy was arrested and charged with extortion and harassment in relation to this and other correspondence he had sent. Mr. O’Herlihy was released subject to an interim release order. It was a term of the order that he not issue any proceedings in court except with the prior approval of his two sureties. It was also a term of the release order that he not communicate with counsel for the Applicants.

Correspondence Involving Lawyers Family Members

[28] In the various correspondence sent in the Action, Mr. O’Herlihy made references to the family members of Mr. Thoburn and Mr. McGivney. On July 27, 2023, Mr. O’Herlihy left a voicemail in which he referred to Mr. McGivney as a “fucking pig” and an “Irish drunk with a – bunch of stupid pictures online with his dead father”.

[29] In August 2023, Mr. O’Herlihy began sending photographs of Mr. Thoburn and Mr. McGivney often with their family members. The photographs of Mr. McGivney appear to be from Mr. McGivney’s mother’s online obituary. The photographs of Mr. Thoburn are from Mr. Thoburn’s mother’s Facebook. Mr. O’Herlihy stated in an email that it is “not my fault your mother put that stupid and compromising picture of you online”. Mr. O’Herlihy stated that if the Action was resolved “all these pictures will be forgotten about”.

[30] As noted earlier in these reasons, on December 23, 2023, Mr. O’Herlihy left a voicemail with Mr. McGivney’s daughter in which he stated that unless she spoke with Mr. McGivney about BLG getting off the record in the Action, he would disclose information that would be harmful and embarrassing to her, her mother and other members of her family. Mr. O’Herlihy followed up the voicemail with an email to the same effect.

Campaign Against Mr. Lawrence and Threats Against BLG

[31] In the Action, Mr. O’Herlihy alleges that he was assaulted by Kirk Lawrence. In 2011 Mr. Lawrence’s Facebook status read, “Theme for 2011: Pride Killer”. Mr. Lawrence states that he was referring to his personal pride and that the theme was that one should diminish one’s own pride because it is an obstacle to self-growth. Mr. O’Herlihy has pursued a narrative that Mr. Lawrence advocates for the “murder of homosexuals”. He referred to Mr. Lawrence as the “Pride Killer”. Mr. O’Herlihy was charged with criminal harassment and defamatory libel in June 2023 with respect to his conduct towards Mr. Lawrence.

[32] On June 15, 2023, Mr. O’Herlihy sent to counsel for the defendants in the Action, and to Mr. McGivney, Mr. Murphy and three other lawyers at BLG who have no involvement in the Action, a picture of Mr. O’Herlihy with former Chief of Police Mark Saunders, along with an audio recording. In the audio recording, Mr. O’Herlihy states that a man who works for the City and advocates for the “murder of homosexuals” assaulted his client, and that the man is represented by BLG. Mr. O’Herlihy is heard asking Mr. Saunders if he would revisit the City’s relationship with BLG and Mr. McGivney who were representing a “Pride Killer”.

[33] Later on June 15, 2023, Mr. O’Herlihy left a voice mail with Mr. McGivney in which he stated that the Action would be a “public relations nightmare for BLG” and that the time to resolve the Action was now, otherwise, “there’s gonna be careers ruined over this”. Mr. O’Herlihy then left a voicemail with Mr. Thoburn and stated that the Action had to be resolved with the next few days or “this is going to in the papers and it’s going to embarrass everybody”. The voicemail was followed by an email to Mr. McGivney, Mr. Thoburn and Mr. Fuhrmann stating that the “time to resolve the case is now!! Otherwise the case is going to spiral out of control. Everyone will be profoundly embarrassed by all this. Including me”.

[34] On June 16, 2023, Mr. O’Herlihy sent an email to the director of litigation services for the City enclosing a draft statement of claim outlining an alleged assault by a police officer. He indicated in the email that he may not proceed with the Police Action, if the City resolved the Action. A follow up email was sent by Mr. O’Herlihy in which he stated that he would issue the action against the police if the Action was not resolved within 2 weeks. Mr. O’Herlihy issued the statement of claim in the Police Action on June 30, 2024.

[35] Between June 19 and June 22, 2023, Mr. O’Herlihy sent Mr. McGivney and Mr. Murphy and others at BLG, several emails stating that he had been on contact with organizers of Pride Toronto and Pride Vancouver regarding BLG’s representation of Mr. Lawrence. He stated that he would be requesting that Pride Toronto not permit BLG to participate in any future Pride events in Toronto.

[36] On June 23, 2023, Mr. O’Herlihy attended at BLG’s downtown Toronto office and informed reception that he was there to see Mr. Thoburn and that he had a gift for him and to wish him well on the birth of his child. Mr. O’Herlihy left a stack of flyers on the reception desk. The flyers state, “Toronto Law Firm Borden Ladner Gervais is Representing a “Pride Killer”!!” The flyers contained a picture of Mr. McGivney and included his phone number and email. Later that day, Mr. O’Herlihy left voicemails to Mr. Thoburn and Mr. McGivney that he would be distributing the flyers. He stated that any action taken to stop him from distributing the flyers would result in that person being sued.

[37] On June 26, 2023, Mr. O’Herlihy returned to the downtown offices of BLG. He walked past reception and entered a boardroom and disrupted a meeting. Later that day he tweeted that “he had a right to enter the premises of BLG. I am the lawyer on record for a case I have with them and came into the office to give my colleague Jonathan Thoburn a gift because he just had a baby”. The tweet was removed shortly after it was posted.

[38] In January 2024, the parties attended a case conference before Associate Justice Brown. Mr. Thoburn advised Associate Justice Brown that Mr. O’Herlihy had contacted Mr. McGivney’s daughter. In the days that followed the case conference, Mr. O’Herlihy sent emails to a variety of BLG lawyers, including Mr. O’Connor and Mr. Murphy. He threatened to sue Mr. Thoburn for slander and report him to the LSO and the Toronto Police. As noted above, in the voicemail left for Mr. Murphy on January 10, 2024, Mr. O’Herlihy yelled, “I’m gonna come up there and fucking go after you”.

Other Legal Proceedings

[39] Between February 16, 2021 and March 21, 2024, Mr. O’Herlihy initiated 19 lawsuits. One of the lawsuits brought by Mr. O’Herlihy was against Facebook Inc. (the Facebook Action). The defendant in the Facebook Action brought a motion to strike the claim on the basis that it was an abuse of process and did not disclose a reasonable cause of action. The motion came before me. By endorsement dated February 27, 2023, I struck the claim, with leave to amend. (O’Herlihy v. Facebook Inc., 2023 ONSC 3128)

[40] In my endorsement I noted that the claim against Facebook was 336 paragraphs over 46 pages. I also noted that since February 16, 2021, Mr. O’Herlihy had brought at least 16 actions against Facebook, Google, Amazon, Zoom, StubHub, Uber, Clearview AI, Face4 Systems, Bell Canada, the RCMP, the Toronto Police, Canada Border Services, the Greater Toronto Airport Authority, the City of Toronto, Apple, Bell Technical Solutions and TikTok. Facebook argued that Mr. O’Herlihy’s overall strategy was to bring actions against well-resourced tech companies and government organizations in the hope of a quick settlement. Many of the claims followed the same pattern and were duplicative, word-for-word reproductions of the claims raised against Facebook. I did not make any finding as to whether the claims were part of a litigation scheme. However, I found that the claim, as drafted against Facebook was prejudicial, scandalous, frivolous and vexatious.

THE ISSUES

[41] The following issues will be addressed in this endorsement:

a) Is Mr. O’Herlihy a vexatious litigant? b) If so, what are the appropriate terms to address the vexatious conduct? c) What are the costs of the dismissal of the Action and the Police Action?

ANALYSIS

Issue # 1 – Is Mr. O’Herlihy a vexatious litigant?

The Test for a Vexatious Litigant Order

[42] Under Section 140 of the Act, where a judge of the Superior Court is satisfied, that a person has persistently and without reasonable grounds, instituted vexatious proceedings in any court, or conducted a proceeding in a vexatious manner, the judge may order that the person may not, without leave of the court, institute any further proceeding in any court or continue a proceeding previously instituted: see Peoples Trust v. Atas, 2018 ONSC 58 (Div. Ct.), at para. 34.

[43] The purpose of a vexatious litigant order is to prevent vexatious litigants from harassing others emotionally and forcing them to incur unnecessary legal costs. The order may also protect the respondent from squandering their own resources on unmeritorious claims. The order also protects society’s interests by limiting the needless diversion of finite court resources to private vendettas: Harper v. MacDonald, 2022 ONSC 4734 (Harper), at para. 44.

[44] The scope for the vexatious litigant application is not limited to the proceedings involving the applicants. The court is to consider the conduct of the respondent inside and outside the courtroom. As stated in Dobson v. Green, 2012 ONSC 4432 (Dobson), at para. 12:

Moreover, the court is not strictly limited to the conduct of the allegedly vexatious litigant in the courtroom. The behavior of a litigant both inside and outside of the courtroom may be relevant. It is not uncommon for a vexatious litigant to utilize the court process as simply part of an overall strategy of abuse and harassment. Their conduct out of court may provide evidence from which it may be inferred that court proceedings are not bona fide but merely the product of someone who is “unreasonably obsessed with a cause and likely to pursue vexatious court proceedings on an indefinite basis unless stopped.” In this way, the conduct of the vexatious litigant outside of the courtroom may be helpful in understanding his or her motivation and conduct within the litigation process.

[45] The focus of the analysis is the conduct of the party and not the substance of the claim. Even a party with a meritorious claim could be declared a vexatious litigant if they engaged in conduct of a vexatious nature: Wong v. Wong, at para. 27.

Application of the Test

[46] I am satisfied that Mr. O’Herlihy persistently and without reasonable grounds conducted the Action in a vexatious manner. He harassed the defendants to the Action 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. I am satisfied that Mr. O’Herlihy, “is a vexatious litigant, and obviously so”: Peoples Trust v. Atas, at para. 7.

[47] Only a small portion of the total communications from Mr. O’Herlihy is set out in this endorsement. Over the course of 318 days, Mr. O’Herlihy sent a combined total of 392 emails, voicemails and letters to counsel for the defendants, a number of individuals at BLG who have no involvement in the action, and individuals at the City and Toronto Police.

[48] In Goodlife Fitness Centres Inc. v. Hicks, 2019 ONSC 4942, the respondent Hicks had sent in excess of 175 emails over a four-year span from the fall of 2014 to the fall of 2018. Many of the emails were abusive and threatening. The court stated as follows:

[70] I find that the emails from Mr. Hicks were sent for purposes other than addressing any ongoing proceedings that would require him to communicate with any of the addressees. These emails are vexatious. In addition, the emails are abusive and at times threatening. Together with the various proceedings, the emails are part of an overall strategy of abuse and harassment (Dobson, at para. 12).

[49] Here, Mr. O’Herlihy’s conduct is more abusive than in the Goodlife case. He sent 392 emails, voicemails and other correspondence over a 318-day period. As in the Goodlife case many of the communications were abusive. Some examples of the abusive and inappropriate communications are as follows:

a) Between June 14 and June 26, 2023, Mr. O’Herlihy sent BLG multiple communications indicating that BLG should resolve the Action “now” before he ruined “careers” and “lives”. Mr. O’Herlihy stated that the Action was going to “embarrass everybody”, be “a public relations nightmare”, and “really, really bad for your law firm”. b) On December 3, 2023, Mr. O’Herlihy left Mr. Thoburn a voicemail in which he alleged a former BLG Lawyer, (who was not involved in the Action), attended examinations for discovery while on drugs, had different children with different men, and stated that “[the lawyer] was a whore […] McGivney’s whore”. Mr. O’Herlihy stated he would keep the former BLG Lawyer out of the Action if “you throw me a bone”, and that unless “you throw me a bone”, the former BLG Lawyer “will be talked about for years”. c) On December 12, 2023, Mr. O’Herlihy left a voicemail for Dennis O’Connor, asking “who the fuck do you think you are?” and threatened that he “better do something about this” and “use [his] influence” or he will be dragged into the Action and his name will be “mud too”. Mr. O’Herlihy stated that he knew “so much shit about your law firm, it’s going to embarrass a lot of people”. d) On January 9, 2024, Mr. O’Herlihy sent Mr. McGivney, several BLG partners with no involvement in the Action, and BLG Toronto’s regional and national managing partners an email containing four pictures of Mr. Thoburn at social events and stating: “the longer you dogmatically insist on remaining as solicitors of record in the Pride Killer case, the more these pictures will become a live issue”. e) On January 10, 2024, Mr. O’Herlihy left Mr. Murphy a voicemail in which he told Mr. Murphy to “move the file to another law firm” and that he was not “going to let you pieces of shit” get in the way of his “quest for justice”. In the voicemail, Mr. O’Herlihy also stated that if there are no apologies to him, “there's gonna be hell coming to your way. Fucking hell.” And that he was “gonna go fu—gonna get up there and fucking go after you”.

[50] I am satisfied that the emails and voicemails were sent for purposes other than what was required to address the issues in the Action. 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 Action.

[51] The most egregious example of Mr. O’Herlihy’s vexatious and abusive conduct is his communication to Mr. McGivney’s daughter. She is a lawyer at a different law firm and had no professional involvement in the Action. In the voicemail left with Ms. McGivney, Mr. O’Herlihy threatened to disclose information about Mr. McGivney 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”. There are no grounds that could justify this conduct. As noted by Associate Justice Brown, Mr. O’Herlihy’s contact with Mr. McGivney’s daughter “comes across as a bald attempt to influence the course of litigation through the intimidation of a family member of opposing counsel. It is wholly inappropriate conduct for any litigant in a civil proceeding, let alone a licensed Ontario lawyer”. This conduct resulted in Mr. O’Herlihy being arrested and charged with extortion and harassment.

[52] Mr. O’Herlihy does not deny sending the emails or voicemails. He provides no excuse for his conduct. In oral argument, he conceded that leaving the voicemails was “bad judgment”. However, he made no apology and failed to demonstrate any contrition. In fact, in his oral submissions, 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 Mr. McGivney “asked for it” and used his daughter and wife as “tools in a coverup”.

[53] I find that Mr. O’Herlihy used the litigation process to abuse, harass and threaten the defendants. Counsel for the Applicant stated in oral argument that because of the high volume of correspondence from Mr. O’Herlihy, this file was always on his desk. As a result, the defendants in the Action were required to incur higher costs, because their lawyers had to deal with the voluminous emails and voicemails: Harper, at para. 49.

[54] In addition to the high volume of emails and voicemails, the court documents filed by Mr. O’Herlihy greatly increased the costs to the defendants. Although this was a relatively straightforward personal injury action, the statement of claim drafted by Mr. O’Herlihy was 110 paragraphs. He delivered six requests to admit containing 758 paragraphs many of which were irrelevant, scandalous and/or abusive. His written interrogatories of Mr. McGivney consisted of 2,374 cross-examination questions. As I noted in my endorsement dated April 30, 2024, there were 100s and 100s of questions that related to matters and persons not involved in this proceeding. I found the questions to be largely irrelevant, inflammatory, and inappropriate.

[55] I find that 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.

[56] 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. In response to the vexatious litigant Application, Mr. O’Herlihy brought a recusal motion and an anti-SLAPP motion. Both motions were without merit and were dismissed summarily.

[57] I am satisfied on the record before me that Mr. O’Herlihy is a vexatious litigant. The evidence is overwhelming. In this endorsement I have referred to only a fraction of the extensive material that was in evidence on the Application. In hundreds of emails and voicemails Mr. O’Herlihy acted in an abusive, threatening and wholly inappropriate manner.

Issue # 2 - What are the appropriate terms to address the vexatious conduct?

[58] Section 140 of the Act provides that if there is a finding that the respondent acted in a vexatious manner, the judge may order that the person may not, without leave of the court, institute any further proceeding in any court or continue a proceeding previously instituted.

[59] The vexatious litigant order does not necessarily result in a vexatious litigant being forever deprived the right to launch court proceedings. Instead, the order serves to require judicial supervision over the initiation of proceedings. The order shifts the burden to the vexatious litigant to establish to the satisfaction of the court that there is a reasonable basis for the proposed proceedings: Dobson, at para. 8.

[60] Mr. O’Herlihy has demonstrated a lack of respect for the court and its orders. He violated the Brott Order by sending at least 143 emails to persons other than Mr. Thoburn and Mr. Fuhrmann. While this Application hearing was pending, Mr. O’Herlihy continued with his offensive conduct, tweeting photographs of Mr. McGivney’s wife and alleging that she spied and intimidated him. In a recent Application he named Mr. Thoburn’s mother and Mr. McGivney’s spouse.

[61] Mr. O’Herlihy has threatened to continue his vexatious conduct. During his oral submissions on the Application, Mr. O’Herlihy stated that regardless of the result on this Application, he will “pursue this case for years and years”. He stated that he intends to bring a “multitude of other actions” and will sue the City for “8 figures”. In his voicemail to Mr. Thoburn on June 27, 2023, Mr. O’Herlihy stated that, “I'm going to bring lawsuits like you wouldn't believe”. In a tweet posted on April 24, 2024, Mr. O’Herlihy states that it is his intention to bring an application to have the City declared to be a vexatious litigant.

[62] It is clear that in the absence of a strong order of the Court, Mr. O’Herlihy will continue his vexatious and abusive conduct. I order that Mr. O’Herlihy is prohibited from either directly or indirectly, instituting any proceeding or continuing any proceedings previously instituted in any Ontario court, except and until such time as he has obtained leave from a judge of the Superior Court of Justice pursuant to s. 140(3) of the Act.

Issue # 3 - What are the costs of the dismissal of the Action and the Police Action?

[63] On January 23, 2024, a lawyer who stated that he was retained by Mr. O’Herlihy delivered two Notices of Discontinuance in the Action and the Police Action. By endorsement dated March 1, 2024, I dismissed the Action and Police Action, with costs. At that time, I fixed costs in the amount of $15,000 for the Action and $5,000 for the Police Action. At Mr. O’Herlihy’s request, I set aside the cost orders and directed that the costs for the discontinuance of the Action and Police Action would proceed in writing. I received the submissions of the defendants in the Action and Police Action on April 5, 2024. Mr. O’Herlihy delivered his cost submissions on April 13, 2024.

Position of the Parties

[64] The defendants in the Action seek their costs in the all-inclusive amount of $35,000. The defendants in the Police Action seek their costs in the all-inclusive amount of $8,000. The defendants argue that Mr. O’Herlihy’s “reprehensible, scandalous and outrageous” conduct resulted in increased costs. The defendants were required to consider and respond to 100’s of emails and voicemails. Many of the emails and voice mails included unproven allegations of false representation, concealment or misconduct that impugned the integrity of the defendant’s lawyers. The defendants also argue that Mr. O’Herlihy is a lawyer licenced with the LSO with 15 years of litigation experience and would have understood that his conduct would cause the defendants to incur higher costs, and therefore a significant cost award would have been within his reasonable expectations.

[65] Mr. O’Herlihy argues that there should be no order as to costs. In his cost submissions he attempts to re-litigate the issues in the case. He stated that he only agreed to deliver the Notices of Discontinuance as a “bargaining chip” in order to get himself out of jail on the harassment and extortion charges. He states that he “reserves the right to bring four sets of new claims … even if I get declared a vexatious litigant at some point.” He also states that “there will never be peace between me and the City of Toronto until the latter acknowledges that I was the victim of physical violence at the hand of one of their security guards.” Mr. O’Herlihy argues that no cost award ought to be made because he is impecunious. Finally, he states that if costs are awarded against him, he has “no intention of paying the City of Toronto one cent”.

[66] With respect to the Police Action, Mr. O’Herlihy argues that the work done by the defence on that file was minimal. He delivered a brief statement of claim. He argues that the statement of defence was “boilerplate”. There were no documents exchanged by either party. He argues that he believed the claim had merit but agreed to the discontinuance because he needed to “throw a bone” to the Crown Attorney during his January 18, 29024 bail hearing. He also states that there should be no cost award made against him in the Police Action because he is impecunious.

Analysis

[67] Section 131(1) of the Act, provides the court with discretion in the determination of costs. The exercise of this discretion is guided by the factors set out in Rule 57.01, having regard for the overriding principles of reasonableness, fairness and proportionality: Barbour v. Bailey, 2016 ONCA 334, at para. 9; Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12, leave to appeal refused, [2019] S.C.C.A. No. 82; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 38; Zesta Engineering Ltd. v. Cloutier, [2002] O.J. No. 4495 (C.A.), at para. 4.

[68] The rules and principles pertaining to the issue of costs have three principal purposes:

(i) to indemnify successful litigants for the expense of litigation; (ii) to encourage settlement; and (iii) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), at para. 22.

[69] Mr. O’Herlihy argues that no cost order should be made against him because he is impecunious. No admissible evidence with respect to his impecuniosity was filed with the court. In any event, impecuniosity cannot be used by a party as a shield to cost liability when the party has failed to act reasonably: Sutherland v. Manulife, 2011 ONSC 1170, at para. 8. Here, Mr. O’Herlihy failed to conduct himself in a reasonable manner and his actions increased costs to the defendants unnecessarily. As noted by Justice Wilson in Mark v. Bhangari, 2010 ONSC 4638:

[9] I agree with the position of the defence that impecuniosity is no answer to an argument on costs. Certainly, a party’s financial situation is a factor that a court may consider when deciding the issue of costs, but it is not determinative. I agree with the comments of Justice Mesbur in Amaral v. Canadian Musical Reproduction Rights Agency Limited, [2007] O.J. No. 3512 (S.C.J.) where she noted, “Not only do plaintiffs have a choice as to whether to start litigation, they also have choices as to when to begin it, how to conduct it and whether to settle it. All of these factors bear on the issue of costs…”

[10] Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy of the Rules as well as to their requirements. Mr. Mark chose to “roll the dice” on the summary judgment motion and he lost. He must now bear the cost consequences of his decision.

[70] One of the factors for consideration under Rule 57 is the conduct of a party and whether any step in the proceeding was improper or vexatious. I find that Mr. O’Herlihy conducted the Action in a vexatious manner. Mr. O’Herlihy sent voluminous emails and voicemails and filed lengthy court documents to drive up the cost and inconvenience to the defendants. In addition, Mr. O’Herlihy made offensive and inappropriate comments about the defendants and their lawyers. In fact, he continues the inappropriate conduct in his cost submissions. Mr. O’Herlihy’s cost submissions also constitute a flagrant disregard for the orders of the court. He specifically states that he will issue new claims against the defendants even if he is declared a vexatious litigant. He also states that even if a cost order is made against him, he has no intention of paying it.

[71] Mr. O’Herlihy is a lawyer with 15 years of experience. He was aware of the Rules and the costs awards that are made in actions conducted in the way as he has conducted the Action. Mr. O’Herlihy could reasonably expect that if he sent hundreds of emails to the defendants and their lawyers, he would be subject to a significant cost award.

[72] I have also considered the fact that early in the conduct of the Action, the defendants delivered an Offer to Settle the Action with the dismissal on a without costs basis. Mr. O’Herlihy rejected the offer stated that, “I’ll be going after them for seven figures. They will regret this.” In a voicemail that was left on October 6, 2023, in which he stated, “you’re not gonna get any costs from me. You’re not getting any money out of me. A self-represented guy with no money. Who the fuck do you think you are?”

[73] It is my view that a significant cost award is required to discourage and sanction Mr. O’Herlihy’s inappropriate behaviour. I am most concerned about Mr. O’Herlihy’s continued threats in his written cost submissions. His stated intention is to ignore orders of the court and to continue his harassing and intimidating conduct.

[74] I reviewed the defendants’ bills of costs. For the Action, the all-inclusive partial indemnity costs are in excess of $50,000. I find that hours set out are reasonable given the nature of the Action and Mr. O’Herlihy’s conduct. The defendants are only seeking $35,000 for the partial-indemnity costs of the Action. In my view this is a very fair and reasonable approach in the circumstances. For the Police Action, the defendants’ all-inclusive costs are in excess of $8,000. I am also of the view that the hours are reasonable given the legal work that was required in responding to the claim.

[75] In fixing costs, I am not undertaking the same task as an assessment officer or fixing costs with mathematical precision I am not scrutinizing dockets or looking for duplication of work. I am fixing an amount for costs that is fair and reasonable in all of the particular circumstances of the case. I am fixing costs that are within the reasonable expectation of the unsuccessful party to pay.

[76] For the reasons set out above, I award costs of the Action to the defendants fixed in the amount of $35,000. I award costs of the Police Action to the defendants fixed in the amount of $8,000.

DISPOSITION

[77] I make the following order:

(a) I declare that Mr. O’Herlihy is a vexatious litigant pursuant to s. 140 of the Act; (b) I Order that Mr. O’Herlihy is prohibited from either directly or indirectly, instituting any proceeding or continuing any proceedings previously instituted in any Ontario court, except and until such time as he has obtained leave from a judge of the Superior Court of Justice pursuant to s. 140(3) of the Act; (c) I Order that all existing actions, appeals, and applications brought by Mr. O’Herlihy be immediately stayed except and until such time as leave is obtained pursuant to s. 140(3) of the Act; (d) I Order that the Action is dismissed with costs fixed in the all-inclusive amount of $35,000, and the Police Action is dismissed with costs fixed in the all-inclusive amount of $8,000; (e) I Order that henceforth if granted leave to do so, Mr. O’Herlihy may only commence and conduct legal proceedings through a licensed lawyer (other than himself) or paralegal (other than himself); (f) I Order that should Mr. O’Herlihy file material seeking to commence or continue a proceeding or appeal in any court in Ontario without first filing an entered Order permitting him to do so, the proceeding shall be immediately stayed upon any person filing a copy of the order made on this Application in such a court; (g) I Order that Mr. O’Herlihy shall deliver a copy of the Order and reasons to any person or body with whom he initiates or continues any complaint including, without limitation, any court, administrative body and/or tribunal, regulatory body, the police, and the Crown; (h) I Order that any fee waivers or fee waiver certificates, if any, granted to Mr. O’Herlihy with respect to court proceedings, including those granted pursuant to ss. 4.3 and 4.4. of the Administration of Justice Act, R.S.O. 1990, c. A.6 are set aside; (i) I Order that Mr. O’Herlihy shall not request or accept a fee waiver until he has obtained an order for a fee waiver from a case management judge; (j) I Order that a copy of the resulting Judgment and Reasons for Decision be forthwith delivered to the Court of Appeal for Ontario, every region of the Superior Court of Justice, Divisional Court, and Small Claims Court, and to counsel for the defendants of the Respondent’s other legal proceedings; and, (k) I Order that the resulting Judgment is not stayed pending any appeal that may be brought, without prejudice to any stay that an appellate court of competent jurisdiction may grant.

[78] The applicant is successful on this Application and is presumptively entitled to its costs. If the parties are unable to agree on costs, the issue will be heard in-writing. The applicant may deliver its written cost submissions of no more than 3 pages in length excluding offers to settle and cost outlines within 15 days of the date of this endorsement. The respondent may deliver his responding written cost submissions on the same basis within 15 days of receiving the applicant’s cost submission.

Chalmers J.

Released: July 22, 2024

SCHEDULE “A”

1. June 9, 2023 Mr. O’Herlihy left a voicemail for Kevin McGivney:

Happy Pride from Pride Killer. [Laughing] I'm just joking. This is Shane O'Herlihy calling on the Kirk Lawrence matter, a matter you're very familiar with. I just wanted to call and leave you a message cause I've of some stuff coming in the near future that's gonna knock your socks off. Stuff about _______ and ___ -sex life and operations and the racism of your law firm and all the shit that you did with to avoid the rules and the City of Toronto missing evidence and not disclosing evidence in the elevator file. I got stuff that plaintiff's lawyers all over the country would want to see and I'll send it to every single one of them once I make it a public document first because making it a public document is the proper way of doing it. Once something's a public document, anyone can look at it, you know?

And I've got things to say that will embarrass your wife, embarrass your family, embarrass you, and all that talk about pride and diversity on your website is all a crock of corporate horseshit and I've got grounds to bring three, four, five suits already against the City of Toronto. All that I do is in accordance with the rules, accordance with the law so reach out to me if you want to make this case go away. I'm a reasonable guy, I know the law and I'm a conscientious guy and I'm a good person but when these things happen to me, when a man slams my head against a fucking wall, he thinks he can get away with it and the City can get away with it? There's no way that's gonna happen. Outside of you guys hiring someone to fucking to kill me and put my body in a dumpster.

So reach out to me and we can sort this out. I'm a good guy. I'm a reasonable guy. But I got too much shit on your law firm, too much shit on you and too much shit on the City of Toronto. Just too much. It's not gonna go away. It's gonna go on and on and on and on cause even this motion coming up, if I lose the transfer motion, sorry, not the transfer motion, the motion to remove you as solicitor of record. Even if I lose, I still win. Because we have to go through all those issues. They go through discoveries and go through motions. Motions for this, motions for that. Gotta rid of Justice Chalmers Decision cause I don't think it's worth the paper it's written on. And you guys have given me nothing. I have, I have information to ruin several careers. I don't wanna do that but if you force me to I will and I'll have no regrets to do it cause I almost died and you guys have given me fucking shit.

2. On July 27, 2023 Mr. O’Herlihy left four voicemails for James Thoburn:

15:49 Hi, it's Shane O'Herlihy calling on the City of Toronto file. Hope you're enjoying your vacation. That letter you wrote, I don't know if you wrote it like just to piss me off. I'm hoping you didn't, like it seems to suggest that, cause because I brought a Motion, because Toronto's Court backlog is so big that I can't get a Motion date until like October 2024, that means you don't have to give me any productions until October 2024. That's how I interpreted the letter.

I'm not sure if that's the message you seem to put up, you seem to be conveying. If that's the case, then it's clear as day that you guys aren't.. . aren't.. . aren't litigating this matter in a good faith way. I can't imagine Master Brott will accept that. I will ask her to issue an endorsement that you produce all your records in the 30 days I've been promised already by that associate of yours who seems to have written that letter; who's a bit of a dick, Ben Fuhrmann, that he told me in front of Justice Chalmers way back in May, I think it was, that "all the productions are ready, just give us a few days, a few weeks, it will be fine". I've gotten jack shit. So. . . and I keep getting different stories as to if there's video, there's not video, if it shows the incident and if it's it been inconclusive. What's your story? And I'm going to find out eventually, and the longer this goes on, the more money I'm going to get, and the worse you guys are going to look, and if you want to hold out until October 2024 to give me records, just think of all the things I can do between now and October 2024. All the things I got standing to do. How those criminal cases are going to go down. How I can sue everyone in sight who had any—the slightest bit of involvement in getting me criminally charged for speaking the truth. Bogus charges, and I'll sue everyone involved who had any hand in that, and I'll get, you know, what's it called, disclosure and all that.

We'll make it clear as day who caused all this, and I say all this because, like, on Monday I'm going to behave in a gentlemanly fashion and.. . and hopefully you'll come. . . you'll come to the table and everything you say will be truthful and say in good faith, and hopefully you'll get some instructions to try and bury the hatchet with me, because you guys don't look very good. The more this goes on, the worse you guys are going to get. I mean, eventually he's going to fess up. He'll fess up that he slammed my head against the wall. Even if he doesn't fess up, I mean, all I gotta do is prove on a balance of probabilities, and if I can show he brought a frivolous criminal charge against me, which I think I can do. What's that going to do for his credibility? And as well as the McDonald case which goes.. . which supports my credibility, the fact I got two doctors within days of the incident diagnosing me with a concussion and I took photographs 40 minutes after the fact.

I think you're not admitting liability because of personal animus. You have to be professional about this. You have to overlook the fact that you don't like me and I don't like you and we talk about it until the cows come home as to why we don't like each other, but at the end of the day, your client, who has a fiduciary duty to the citizens of this good city of ours, that you live in and I live in, and that we know people in, and that we have to live in this city together. You can't get away with that. You can't give off that impression that you guys do coverups and it's no big deal, because "Oh, this guy Shane, he's a jerk. We know this guy, we don't like him". That's not good enough. That's not good enough. You're going to get pressured over and over and over again from mediators and pre-trial judges and members of the community and people who are trying to reach out to you. I know they're trying to reach out to you and you're not.. . you're not acknowledging them. You're going to have to fess up eventually. The time to do it is now. It makes it easier on you and it makes it easier on me, instead of having waiting for years to get justice, why don't we get justice now? I'm not going away unless you get me fucking killed. I'm not going away. You have to deal with me and you're not dealing me on a good faith basis, and you know it, and that letter, I'll show it at the Master Brott and she's going to say what? That's okay, you want to give them productions for a year and a half? Give me a fucking break.

15:55 Hi Jonathan, it's Shane again and are you going to show up at the case conference saying that that request to admit, the long one, that none of those questions are relevant? Come on. Are you really going to say that? Now this Ben piece of shit, he can say that if he wants because he's just the guy helping out. Okay, but I don't think you're going to show up to the case conference on Monday and say that nothing in that request to admit is relevant including the things that I asked about if there's, a Chinese wall in effect, Shibley Righton LLP, if you had records of dealing with Shane O'Herlihy in the past and all sort of other stuff which is pretty prosaic, pretty nonchalant. You know, what's the word I'm looking for, yeah prosaic. It's just run of the mill stuff. Give me a break.

Now did you write that in there just to piss me off as well because no judge or master or associate judge is going to agree with that. I don't know if you're just putting that in there because you want to delay answering all these questions because you're going to come on Monday offering me something, give me some sort of good faith communication to say that we're interested in resolving this matter, we know that you've been the subject of a coverup or, at the very least from our perspective, there's a chance that there's a coverup in place and we don't want that, and we're willing to do something to resolve that, either by admitting liability or, or some monetary award will just make this go away. If you want to delay, if you don't want to answer these things, if you want to make your lives easier, that's fine, that's fine with me. You don't even have to formally admit to liability or say that there's a coverup or you don't have to, you don't have to give me this information if you admit liability now. However, if you're just going to comp—not give me any information, not give me any productions and not offer me anything, I'm going to hound you every single day until October 2024. I'm going to bring lawsuits like you wouldn't believe. I'm going to amend my Statement of Claims and/or bring more claims which is my right to do.

And of course I'm going to do everything pursuant to the law and pursuant to the Rules of Civil Procedure. I've got 15 years of litigation experience. I remember you. I remember when you worked as a Court Reporter at a network downtown. I was dealing with BLG back then. I was dealing with Kevin McGivney back then. I was dealing with City of Toronto files back then, and I was dealing with City of Toronto files when the City of Toronto,___________ , _______was on drugs, _______was doing a sloppy job doing discoveries and a lot of those elevator files, the City of Toronto was missing records. Ha! Funny enough, missing records in my case, missing records in those cases. So I've got firsthand information. I can subpoena people from your law firm to say "isn't it true, the City of Toronto always was missing records" because there's a big behemoth of an organization which employs idiots and makes these stupid mistakes all the time. I know the City of Toronto, I know BLG, I know Kirk Lawrence, and they always say as a litigator, know your enemies better than your representatives of the enemies know them themselves. That's what I always did in all my files in personal injury work. I got to know the plaintiff better than the plaintiff's lawyers did and I did that eight times out of ten or nine times out of ten. I know Kirk Lawrence. I know him. I had visceral dealings with him. He grabbed me and he grabbed my fucking white shirt and he threw it against the wall. And I know what he's like, I know his character. I know he's a fucking moron, pardon my language, pardon my French and I know those meatheads that employed him. So, if you're not offering me anything, I'm going to keep going. And I'm going to keep going. And it's a fulltime job for me because I'm the victim of probably the biggest injustice that is going on in Toronto right now. It's the biggest scandal going on in Toronto right now. It's quiet right now like it's not hit the press or anything and it may never do but it's quietly one of the biggest scandals and that's not me saying "oh I'm important" or anything like that but it's just, just listen to my voice. Listen to my conviction. I'm not going away and you're going to write letters like that which are, which are written in bad faith. Basically, you're saying, we can play dirty with you and we don't have to respect you.

15:57 Basically what you're telling me is that "we don't have to respect you, we don't have to provide you with documents, we don't have to apply by the Rules of Civil Procedure or good practice like we do with other people because we don't like you, and we know you, and you're self-represented". That's basically what you're telling me. If that's how you're going to play it. If basically you're saying "we can act in bad faith with you and we can get away with it". I don't think you can get away with it. And I've got ways and means of ensuring that I get justice in this case. And I know there's people in our community who are yelling and screaming and—and demanding. Demanding answers. Demanding answers for the fucking cover up. I could have fucking died. I could have fucking died. Could have been rendered a fucking retard. I took pictures of my scars which that stupid client of yours put on my neck 40 minutes after it happened. And you write me that shit? Fuck you. Fuck you.

16:03 Yeah, I apologize, it's Shane O'Herlihy again. I apologize for raising my voice, I apologize for the name calling, that I apologize for. Don't bring it up on Monday or report me to the Law Society. I-but I don't apologize for the fact that I'm livid, that I'm emotional, that I am frustrated that I am victim of a coverup and that you guys are operating based on personal animus more than on an objective view of the law and I will never rest until I get justice. Every day I'm going to work on this.

I thought you were of better character. Like all lawyers, we have to be ethical and if you're enga— , if you're, you know, perpetuating a lie, this says something about you. I had a case once where I, where the, our clients were lying, we all knew that they were lying and, and I got so much pressure at discoveries to admit liability, I wanted to do it but I had no instructions to do it. I almost resigned. I almost resigned from Rapley and Company and I, well you know what I did, I kind of took the coward's route out. I got another associate [laughing], I say "can you take this file for me, I don't want to work on it anymore". And she took it for me and I admired her for doing it and what happened was eventually they admitted liability during the mandatory mediation. But frankly, in this case, because of the backlogs and COVID and it's a City of Toronto matter, it's going to be like five years or six years before we get to trial. Maybe more. It'll be like four years until we get into a mandatory mediation and so I got to sit and listen to—get letters like the one I got today for, from four years claiming that I didn't do anything wrong and giving me nothing. Come on, that's so frustrating. You have to do something and given what the Chief Justice said shortly after COVID that "we got to look for resolutions in cases because of all of these backlogs". You got to have to have some good faith in you and communicate to me in good faith on Monday and going forward I might add. Despite the fact that you hate me, you don't like me and I don't like you and we've got good reasons not to like one another. I've got much better reasons than you. And whatever misery I put your way is one one hundredth as bad or less at the misery you guys put to me. I could have fucking died. I could have died. I could have, my parents almost didn't have a son anymore.

That's what you're protecting. You're protecting a lying piece of shit. I'm sorry for all the bad language. I usually don't do that. Again I'm sorry for raising my voice and using bad language and to Ben Fuhrmann too. But I am emotional, and I am the victim of a coverup, and I think at some level you agree with me. I think at some level this is going to gnaw at you if it hasn't gnawed at you already and it's going to gnaw at you for years and you're going to want to have nothing to do with a file like this.

Your client has to do the right thing and it's got to be done soon because if you're going to wait until October 2024 for that motion day and rely on that stupid endorsement which everyone knows is worthless. Think what I can do between now and October 2024 to make everyone's life with even the slightest bit involved in this coverup miserable through the legal system. Like you've given me nothing to lose that's what perplexes me. You've given me nothing. There's people in our community are saying, "Shane, good for you, keep doing it, those guys are bastards". You're not going to win the, the public opinion battle. I've already won that. And I will win that if this goes to trial. Okay, I've got the law and the truth and public opinion on my side. Think about that. given me nothing to lose that’s what perplexes me. You’ve given me nothing. There’s people in our community are saying, “Shane, good for you, keep doing it, those guys are bastards”. You’re not going to win the, the public opinion battle. I’ve already won that. And I will win that if this goes to trial. Okay, I’ve got the law and the truth and public opinion on my side. Think about that.

3. On June 27, 2023, Mr. O’Herlihy left four voice mails for John Murphy the National Managing Partner of BLG.

16:42 Mr. Murphy, this is Shane O'Herlihy calling from Toronto on the City of Toronto matter. You should really take a look at this last letter I got from your associates in Toronto suggesting that they don't have to give me records for a year and a half and that my request to admit a 400 paragraph one—that there's not one relevant question.

For God's sake, unless you guys are just delaying things so you don't have to do too much work because you're gonna give me a good faith offer to try and compensate me for being the subject of a coverup, a coverup. If you're, un—, otherwise, if you're gonna give me nothing and produce nothing and not offer me anything, this, this, this, this coverup is gonna, I mean this is your 200th year anniversary. It's just gonna get worse and worse. There's people that you know in the community who aren't even participants in this matter who are saying "good for you Shane, go after this crooked dirty law firm that's doing a coverup for a guy" who threw my fucking head against the wall, threw my fucking head against a fucking wall, your client and you're pretending it didn't happen. Your guys are gonna face potential criminal repercussions for this. Your client and some of your lawyers. Is it worth it for you?

Give me a good faith representation during the case conference on Monday please as to where things are going. Because since Chief Saunders made his.. .his.. .his announcement I think on June 14, 2023, you guys went completely silent until this bullshit letter came which suggests that we don't have to give you anything for over a year, we don't have to answer any request to admit. I mean any judge is gonna look and say fuck you guys, who the hell do you guys think you are? You're not above the law just because you represent the police, you're not above the law.

And I have information to suggest that BLG fed false information to the Toronto police to get me in trouble and to try to get me to drop my lawsuit, that's millions of dollars in and of itself exploiting your relationship with the Toronto Police Service. And I'm gonna sue everyone who had even the remotest involvement in that cause this is a civilized country alright, it's not a fucking third world country, this is Canada. You can't be that brazen. You can't be that crooked. You have to deal with me in a, on a good faith basis, even if you don't like me. You don't like the fact I'm suing the city. You don't like the fact that I'm suing for seven figures, that I got a brain injury. You don't like it because you've dealt with Shane before you know, he's a, he's a strong guy, he, he's brought other claims for privacy matters, we don't like him, he gets nothing. That's not how the system works. Not even in Quebec [laughing] it works like that and Quebec is more crooked than in Ontario and I can say that cause I lived in Quebec for five years and I dealt with the Montreal Police there and they can be crooked as a barrel of snakes but that's beside the point.

Get in touch with those people cause they're getting themselves in a lot of shit and it's, and it's, this coverup stinks and it's only gonna get worse and I'm—and because I could have fucking died that day, I'm gonna dedicated every single waking hour of my life against you guys. And I know you guys, I've known you guys for 15 years. I worked on elevator cases with you guys. You guys hid evidence in those cases too, didn't produce the sufficient records because the City of Toronto didn't bother because they knew our clients were, were conscientious and we would produce records on their behalf. I, I've got insider information about how you handled those cases and how you didn't play by the rules in those cases too. You want me to overlook that? Well fuck you, I'm not. I'm gonna bring up all of that and all the requests to admit. I've got standings to, to ruin Mr. McGivney's career. You show me some respect and I'll show respect back. You show me fucking nothing, I'll fucking ruin you guys. All within, all within the confines of the rules of Civil Procedure and I've got 15 years of litigation experience. Unless you fucking rub me out, hire someone to get me fucking killed, unless you do something like that, you're gonna regret the way you've been treating me. Have a nice day.

18:56 Mr. Murphy, if your client is the City of Toronto, in all good faith take a no liability position and offer me nothing, they have to produce those documents now. Not a month from now, not 14 months now, what that.. . that recent letter from your firm suggests. They have to produce it now. That's the right thing to do and that is your obligation to instruct your partners and associates in the City of Toronto and say, "you guys are embarrassing our law firm, you give this guy the record he deserves and he's entitled to under the Rules of Civil Procedure and you do it now". You have to tell them that. I don't need to tell you what you have to do. That's your fucking job and you do it now. Okay. Mr. National Partner. Because this is going to blow up and stink like you wouldn't fucking believe.

19:01 And I'll say this with all my heart soul, I'll say this as objectively as I can. Mr. McGivney should be disbarred for this. He should not be practicing law anymore. He knew me for many years, exploited our relationship. And suggesting that my value to the firm is nothing. He should be.. . he should have removed himself years—I mean once this case started. He's a selfish pig. He's a fucking pig. A cochon, ‘il est un cochon' and he's a fucking embarrassment to your law firm. He's got pictures up on the internet right now, drunk as fucking Irishman. An Irish drunk with a—with a bunch of stupid pictures online with his dead father. He's making your firm and to look like a bunch of asses. He should be disbarred and I don't feel the slightest bit bad if he does. Maybe he will, maybe he won't but he should. And if you got any sense, you would agree with that. If you had any good sense, you would, you would, not interfere is the wrong word—you would intervene and say, "this is Canada for fuck sakes, this is a founding law firm of this country, we can't let this shit go on". This is naked corruption. Election interference. Jesus Christ do you have any idea what you got yourselves into? You're a Canadian citizen. You know the Prime Minister. You know a lot of important people. You can't, you can't, you're making the fucking country look bad with shit. Sorry for my language. Sorry for my language. But you got that Irish drunk making a fool out of you.

19:28 And I know all the sordid details of your law firm's social life, especially from around 20__. to 20__. I know all about _______who worked the—at the Toronto office. ___was the office bimbo. ___ got fake tits and they passed ___ around the office. And ___ was known on the circuit. ___ had children with different men. I know all about it. I know all about that ___ had illegitimate children. I was told about this stuff. I was expected to keep that stuff quiet. That's what BLG communicated to me. Keep this shit quiet, cause if you keep it quiet, we'll do you some favours. "You scratch our back, I'll scratch yours". So I scratched BLG's back. I kept a lotttt of shit quiet. I kept shit quiet about ______. I kept shit quiet about missing records. I kept shit quiet about the City of Toronto's misdeeds and—and shit about Diana Dimmer and Philip Chan. And some other scandals. This—your—BLG they have big mouths especially when they were drinking. I saw them drunk. I saw them drunk. And they told me shit you wouldn't believe. And they did things in front of me which will embarrass you. And embarrass your family. And will be the laughingstock at the Montreal office. And—and clients are gonna start finding out. And they're gonna wanna know all about it. And I got a lot to share.

4. On September 29, 2023 Mr. O’Herlihy left a voicemail for Mr. McGivney.

17:52 Kevin, you trained your boy so well. He is a conniving snake like you. I've-I've known your reputation for years. I've known your reputation before this litigation ever started but, but, but Jonathan who I also knew, seemed like a bright eye nice boy trying his best, an earnest guy, hardworking all that stuff but he's just, he's [inaudible] fuck he's turning into a scoundrel. He's turning into you.

When I handed out those flyers—this is just facts, you know you can't give me grief for telling you facts. When I handed out flyers a few months ago, I handed it to one guy, he looked at your face and said and read the materials underneath—it was all true— he said, "I want to take a shit on that pig's face". That's what he said about your face. And I don't want Jonathan's face turning into your face but it's already starting to turn into your face. I'm not saying you're ugly. I'm not. I'm not saying non-beautiful man. I've-I've-I've seen your pictures when you were a young man, you were handsome. But if—its—you're looking.. . you have the face of a wicked evil, disgusting man who will say anything to feather his nest and to increase his stomach. You're a fucking animal. You're an animal. You're a pig and you're a scoundrel and you're all going to get your comeuppance out of this. You're all going to get what you deserve. You deserve criminal liability. I'm just one man. I'm self-represented, my power's limited. You might not get that. But you'll get lawsuits. You'll get punishment. You'll get embarrassment and you deserve 50 times more than that. After all the fucking shit you've put me through. So, fuck you. Yep, fuck you. And fuck everyone whose involved with you. You are a fucking disgusting piece of shit. I know what you did on the Kettleling case. I know what you did on the other cases. I know who you are.

You are involved in an ongoing cover up and it has to stop. Okay. It has to stop. You represent Canada's law firm. You represent the most important municipality in this country. You can't do this. You're not allowed. It's not allowed. I don't care if you don't like me. I don't like you, you don't like me, we're past that. You can't allow this. This will get exposed. It will get exposed. It's gonna take some time. I've got time. Unless you hire someone to fucking kill me. I wouldn't past you because you are basically an adherent to an attempted murder. So, fuck off. Fuck you. I'm happy about handing out those flyers. It's the best thing I ever did and I've got more coming. I've got more coming. Everything I do is legal within the bounds of the-of the rules and the, the law. I've never broken a law in my life. These—these criminal charges I'm going to beat but I've got some shit coming. It's going to blow you away even more. So, watch out.

5. On December 12, 2023, Mr. McGivney left a voice mail with Dennis O’Connor at BLG.

22:16 Hi Mr. O’Connor. How are you? This Shane O’Herlihy calling on the Pride Killer/Kirk Lawrence/City of Toronto file. I hope you're doing well. I’ve sent you one or two pieces of correspondence on this file over the years—not over the years—over the months I should say. I know your position. I know who you are. I—you're a retired judge, QC. Got a lot special insignia associated with your name. You're some big shot. You're an important lawyer/judge/name. You're the kind of guy that—that, you know, law firms, they poach when they're done their retirement from being a judge so that they can use their influence and say, you know: “Look who we got on our side. Look what Judge BLG got. In case you think our shit doesn't stink, we got a retired judge with all these important decisions associated with his—with his name”. Guess what? You're associated with a cover up. You're involved in this case whether you like it or not. You're associated with the cover up for an attempted murder by the City of Toronto. By an animal of a guard who flagrantly broke the law. The video is missing. I know so much shit about your law firm, it's going to embarrass a lot of people.

Now the cynic in me says you're just—they just acquired you as a—as an associate to make a partner just so they could use your influence, use, you know, they'll you know, you go out to lunches and brunches and you and—you and you, you impress important people and that's—that's who you are. And “look, we got a QC”. But you’re there also to provide guidance, moral guidance. As a judge who sees things objectively and as things—sees things—knows there's such a thing as justice, a higher cause. You guys are doing a cover up—pardon my language—for a fucking murder. A fucking attempted murder on my life. You have to intervene and you have to do something about it. I don't care if you like me or not. I don't care if your associates and your partners like me or not. It doesn't matter. It does—has no relevance. You were trained just like me and the same law schools, same universities, that this kind of thing is wrong. A cover up in this country is not allowed. You can't do it. I sustained a brain injury and I could have died. And you're covering it up and bringing motions and applications against a self-represented guy with no money. Who the fuck do you think you are? Cuz you’re—cuz you’re got some nice corner office and you're—you were—you got a QC to your name you can—you can get away with this shit? Guess what? You’re BLG and cuz you're BLG, you're part of the cover up too. So you better do something about this or you’re gonna be dragged into this and your name will be mud too. Use your influence. Use your fucking millions of dollars that you've earned over the years off the backs of taxpayers like me and do the right thing. It doesn't matter if I've been emotional, if I've said some rude things, doesn't matter. It does no relevance. On September 5th, 2021, your clients threw my head against the fucking wall and I could have died. So fucking do something about it. Now.

6. On December 23, 2023, Mr. O’Herlihy left a voice mail for Mr. McGivney’s daughter.

16:13 Hi Ms. McGivney. How are you? My name is Shane O'Herlihy and I'm involved in a case with your father Kevin McGivney at—at Canada's law firm, and he's representing a known Pride Killer whose actions almost resulted in my death. You may have heard about this case already. And if you haven't, you should really speak to your father about it and Jonathan Thoburn who you also— I believe you also know. I'm calling—this is a professional call. This is a business call. It's just relating to ongoing civil proceedings.

Now the problem is that this your—your father, and I have every right to say this, and he can—he can get me in trouble as much as he wants I don't really care, your father is covering up an attempted murder, by a Pride Killer no less, a man that advocates for the murderers, homosexuals and advocates, and glorifies violence. And I'm calling today to see what you can do as his daughter to put a halt to what's going on here because if this matter proceeds more and more… I had a relationship with Mr. McGivney and his law firm. I had a relationship with a _________named _________and all of my knowledge of __________ relationship with your father will affect your family. Will affect those relationships. Will cause a lot of information that's just been hidden for many years to come out in the light—to come out in the light again. It will involve your mother and may involve other members of your family. May involve you. You may be called as a witness as well.

And I'm calling today to make you aware of this, that things are going to come out in the open sometime in the next few weeks and I was just hoping that as an—as a knowledgeable lawyer yourself and member of the McGivney family you could talk some sense into your father. If you can get him to at the very least remove himself as solicitor of record because I know way too much stuff. I'm talking about paternity of children. I'm talking about relationships that could destroy families. Sorry, I'm in a business place right now I’m in a shopping mall.

So that's all I'm going to say for now. Feel free to reach out to me anytime. I'm an open book. I'm an honest guy. I'm a decent guy, but I’ve been put in an absolute impossible situation in which these guys continue to remain solicitors of record. I know all about your personal lives. I know that they're engaging in something that should, in my humble opinion, should result your father be thrown into prison. Talk to—talk to your mentors at your law firm about it. Miller Thompson I think it—I think it’s called? Talk—talk to other people, talk to me—and then you can talk to me if you want. And I'm not here to win a popularity contest. I don't really care anymore. I couldn't care less. But what's going on is disgusting. And I am the victim of a gross injustice and I'm not going to rest until I get justice in this case, and that's going to involve exposing all of the things that your father has done over the years. Representing the Toronto Police Service representing the City of Toronto, all the cover ups he's done, the cover up he's doing in this case, his relationships with ___________. I'll just leave it at that for now. I think you're a smart woman. You can figure out the rest.

Again, this is a business call. It’s a professional call. I’m a member of the Law Society, a fellow member of the Law Society like you. I want to see things done right here. So feel free to e-mail me or call me at 416-824-5914. Merry Christmas. Goodbye.

7. On January 10, 2024 Mr. O’Herlihy left the following voicemails with John Murphy:

12:43 Hi Mr. Murphy, how are you? This is Shane O’Herlihy calling on the Pride Killer case in Toronto hope you're doing. Well, my God, you should have seen—what your—what your partner Jonathan Thorburn did yesterday. He said in open court, bald faced lie in front of Justice Brown, he said that I tried to contact a child. And that I—that I was acting improperly and that I was harassing a child. That's a fucking lie. And not only does he open you and your law firm to new lawsuits and a slander claim. That's potentially criminal. You lie openly in court to get a result, there's provisions in the Criminal Court—in the Criminal Code and speak to that. You better get together with that piece of shit who works for you in Toronto and get some apologies going within the next couple of days, because if not, there's gonna be hell coming to your way. Fucking hell. You got these— you—you—you got these fucking guys lying in court saying I'm harassing a child? And you get an endorsement, basically predicated on lies? I'm gonna go fu—gonna get up there and fucking go after you. Go after your law firm, pursuant to the rules of course. I'm upset and I'm angry and I got every fucking right to be. You say I'm harassing a child? Fuck you.

12:48 Mr. um, I apologize for—for yelling. I don't apologize for the content of what I—I said but I do apologize for raising my voice. But I'm upset because your client threw my head against the wall, you're suppressing evidence, you're pretending it didn't happen, and you're putting out this shit that I tried to contact a child. That I harassed a child. That's sickening, and it's all gonna come out.

Mr. Thoburn is a drunk. He's been a drunk for years. I've seen him at parties. I've seen him with a red face. Probably a drug user. __________was a drug user. ___ had different children with different men. ___ shacked up with a local drug dealer in Welland for many years. ___ told me all about this. ___ got fake tits so ___ could sleep with young men in—in—in downtown Toronto. What's it called? Yorkville. ___ was a big player out there. And so they're just throwing this shit at me, making stuff up because I got too much information on you guys. And it's all relevant to these proceedings. And I've got all sorts of—I—I got standing to sue Jonathan Thoburn and the firm now, and I probably will do it. You should have removed yourself as solicitors record a long time ago.

Okay do the right thing. They're fucking embarrassing you here in Toronto, these guys. He's too emotional, Mr. Thoburn. You don't mix personal—personal business with regular business. You just don't do it. You just move the—move the file to another law firm. It's one god damn file. It's too late now. Too many eggs have been broken, but you gotta do something. You run the firm, you own the firm, you're the most important person there. You—these guys are making a mockery of these proceedings. They're using the Toronto—the police to get after me trying to criminalize my speech. Talk to Kevin McGivney about it. This is ridiculous and it's pretty evil to say that I tried to contact a child. He said that to a judge. I got a reputation to maintain and I'm not gonna let you pieces of shit try to get in the way of it. I'm on a quest for justice. On September 5th, 2021, your client threw my head against the fucking wall and caused a brain injury, OK? How would you like it if something like that happened to you? And that's not a threat. Just think about or something like—something like that happened to your son. Threw your fucking—his head against the wall, hiding the evidence, not producing it, says it didn't happen, and then making up shit to stop him from his quest from justice. Fuck you. Fuck you.