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September 27, 2010

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Billions of dollars invested, not a penny lost. $4.00 • Vol. 21, No. 30 ntitled-3 1 5/4/10 2:49:21 PM Covering Ontario's Legal Scene Mayo Moran victim of 'Whack-A-Mole' litigation by fellow lawyer U of T law dean vindicated BY MICHAEL McKIERNAN Law Times University of Toronto Faculty of Law dean Mayo Moran just weeks after a judge slammed him for his behaviour in the case. Douglas Cunningham has been A trying unsuccessfully to overturn an arbitrator's decision in January 2008 to award Moran a 30-per-cent share in the house they lived in together. Cunningham, a seasoned litigator called to the bar in 1991, believed she was entitled to just nine per cent. Cunningham's relentless litigation has prompted one judge to call the case a court version of the carnival game Whack-A-Mole with Moran playing the role of the hapless rube struggling in vain to contain her former partner. Earlier this month, the Ontario Court of Appeal refused to grant Cunningham leave to appeal a Su- perior Court judicial review of the arbitrator's award, which upheld its fi ndings last December. Cunningham was attempting to set aside an earlier order by the appeal court in March that dismissed his motion for leave to appeal due to delay. In a factum fi led on April 27, Moran's lawyers argued the appeal was just another step in Cunningham's "seemingly endless U of T Faculty of Law dean Mayo Moran is to receive $50,000 in costs following repeated litigation in her separation battle with her former partner Douglas Cunningham. attempt to delay the enforcement of the orig- inal arbitration award." Th e panel of three judges dismissed his motion and added $1,500 to a mounting pile of cost orders against Cunningham in the case. Th e lawyer, who is representing himself, now owes Moran more than $50,000 in legal Toronto lawyer has failed in the latest instalment of his bitter separation battle with fees. He has told the judges he can't aff ord to pay. Cunningham and Moran lived to- gether in a common law relationship between 1990 and 2002. Th ey had one child but never married. Moran initiated the litigation in 2004 after the separation when dis- putes arose about child custody and the property. Th at sparked a six-year scrap that has involved at least six law- yers, 10 Superior Court judges, and countless motions and cross-motions. Th e matter even spawned a separate civil action in which Cunningham ac- cused Moran and her lawyers of fraud, deceit, and breach of fi duciary duty for their representations of Moran's fi nancial aff airs. It was in his decision dismissing that separate action that Superior Court Justice Randall Echlin chided Cunningham for his approach. Th e judge called the suit a collateral attack on existing court orders. "I further fi nd that the claims con- tained in this action against Moran are frivolous, vexatious, and an abuse of process," he wrote on Aug. 27. "Inter- estingly, Cunningham aggressively advanced the position that it was Moran whose actions were in 'outrageous disregard for his rights and interests' and displayed 'a lack of integ- rity in the legal process.' Th is description is a more apt characterization of Cunningham's See Judge, page 2 denying disability payments to drug addicts and alcoholics breaches the Ontario Human Rights Code. Now that the latest chapter is over, the lawyer for the Sudbury, Ont., man who started the battle 10 years ago says he hopes the deci- sion marks the end of the road for the government's policy. "Every tribunal and court we have gone in front of has had no dif- fi culty at all fi nding that it is clearly discriminatory, and we're very happy to have the appeal court say that as strongly as it did," says Terry Copes, a lawyer with the Sudbury Lawyer hopes ruling will end discriminatory policy T BY MICHAEL McKIERNAN Law Times he Ontario Court of Ap- peal has upheld a Divi- sional Court fi nding that Community Legal Clinic. Th e panel of three judges ruled unanimously in favour of his cli- ent, Robert Tranchemontagne, a 58-year-old alcoholic whose ben- efi ts from the government will now double as a result of the decision. Norman Werbeski, another Sud- bury man named in the action, died last year after a car hit him. "It's been a long fi ght, and we hope that the government will now give up the fi ght and accept that the section is discrimina- tory," Copes says. Tranchemontagne started to drink at the age of 18 and has been an alcoholic since the early 1990s. He hasn't worked since 1996. At the same time, his doctor told the court he was unemployable. Th e impact of his alcoholism was so severe that he was classifi ed as disabled under the Ontario Dis- ability Support Program Act. But he was disqualifi ed from disability benefi ts under s. 5(2) of the act, which bars those whose disability is the result of a substance addiction alone. Th at meant he could only claim the Ontario Works benefi t, which, at $536 per month, paid just over half of what the disability program would give and was in- tended as a temporary bridge to a return to employment. After a long fi ght, the Social Benefi ts Tribunal found in 2006 that the sole impairment clause of the act breached the human rights code. Writing for the panel, appeal court Justice Janet Simmons said she agreed with the tribunal's conclusion #1 Untitled-1 1 Focus On Business/ Competition Law Quote of the week "Tony Clement, the industry minister, went after U.S. Steel because he perceived that the com- pany's Canadian cutbacks were disproportionate to its cutbacks elsewhere." — Neil Campbell, McMillan LLP, See Does, page 11 Libel Woes 7 Legal Circus 8 STORE & SHRED Exceptional Quality at Reasonable Prices! COPY, SCAN, Call us today to fi nd out how much you can Save. TF: 1.888.781.9083 www.docudavit.com September 27, 2010 ocdavit_LT_June7_10.indd 1 6/4/10 9:22:44 AM Inside This Issue 3 that the section "denies income support and imposes restrictions because of assumed or unjustly at- tributed characteristics." Barbara Hall, chief commission- er of the Ontario Human Rights Commission, says she was pleased with the decision. Her organization intervened in the case. "Th ere are a lot of stereotypes around this issue," she says. "Th ere is some feeling that this is a life- style choice, and certainly this is one more decision that helps dispel those stereotypes. Th is group of people was forced to live in often extreme poverty because of stereo- types, whereas the people with a similar level of disability got more money with virtually no justifi ca- tion for the diff erence." See Decision, page 2 LT Digital version.indd 1 Software application for Real Estate Law Offices in Canada. Used by over 6,000 professionals in 2,500 law firms. To find out more call or email us today 1 866.367.7648 I sales@doprocess.com ©2010 Do Process Software Ltd. The Conveyancer is a registered trademark of Do Process Software Ltd. All rights reserved. www.lawtimesnews.com 9/22/10 10:05:05 AM 6/25/10 12:59:47 PM Click here to subscribe today to LAW TIMES

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