Law Times

September 27, 2010

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PAGE 2 NEWS Judge barred further action Continued from page 1 actions in suing [Sheila] Holmes, [Robert] Lawson, and Moran in this action." After three previous attempts to have the arbitration award set aside, the fraud claim marked Cunningham's fourth try, which prompted Echlin to make the car- nival analogy. "Moran ought not to be forced into continually playing the equivalent of the carnival midway game of 'Whack-A- Mole' in her ongoing dispute with Cun- ningham," he wrote. "Nor should she be compelled to defend in instalments." Cunningham and Mayo originally agreed to have their case mediated and ar- bitrated in December 2006 on the eve of a scheduled trial. Two months after the ar- bitrator, Th omas Bastedo, made his award to Moran in January 2008, Cunningham issued a notice of appeal despite an agree- ment that leave to appeal was necessary. Superior Court Justice Susan Greer heard the appeal in October 2009. She dismissed it in a decision issued two months later. Cunningham then appealed that deci- sion to the appeal court. He claimed in a factum dated April 28 that Greer had "erred in fi nding that the arbitrator was entitled to deference" because of his spe- cialty in family law. He also accused Greer of bias, claiming she had displayed "clear hostility" towards him and an "obvious lack of impartiality" during an earlier hearing in his litigation with Moran. According to Echlin, he also reported Greer to the Canadian Judicial Council for her conduct. "It would appear that allegations of bias by Cunningham become a regular oc- currence after he receives a decision that displeases him," Echlin wrote. At the same time as his original appeal of the arbitrator's award, Cunningham also moved to have it set aside on the grounds that the failure to agree on appeal rights in writing invalidated the whole arbitration agreement. While that motion worked its way through the process, Cunningham hinted that he was preparing yet another motion to quash the award, this time al- leging that Bastedo was biased. In September 2008, he wrote to Bastedo to confront him about his links to the U of T law school. In his reply, Bastedo explained that he had occasionally lectured there and donated some money but noted he had never met Moran and had given far more to Osgoode Hall Law School, where he had been a faculty member. Cunningham claims he never got the letter and, in an affi davit explaining the lateness of his allegation, said he fi rst learned about the facts to support his claim in late January 2009. Finding the second motion to set aside the award for Bastedo's alleged bias an abuse of process, Superior Court Justice Carolyn Horkins highlighted that claim by Cunningham and called it a "false statement under oath." In his decision, Echlin attempted to stop Cunningham in his tracks by barring any further action in his case until he paid the $18,000 cost award the judge made against him. Noting Cunningham hadn't yet heeded the previous cost orders against him, Echlin also gave him a deadline of Nov. 1 to pay. "Cunningham is not immune to the cost consequences of his actions purely because he represents himself," Echlin wrote. "He is not wearing a 'bullet proof vest' which protects him against the cost consequences of the many litigious steps he has chosen to take." Neither Cunningham nor Moran returned calls seeking comment on the matter. LT sepTember 27, 2010 • Law Times Decision reversed onus Continued from page 1 Copes says the government's position recognized alcoholism and substance addiction as dis- abilities but attempted to place them in a diff erent category by suggesting they were curable. "You can't just say one particu- lar type of disability is diff erent," he says. "You can fi nd diff erences in every disability and also a lot of similarities between them. Th at certainly isn't an excuse to treat one disability diff erent from all the others." A medical expert who appeared for the government argued the Ontario Works benefi t was more appropriate for alcoholics and drug addicts because it improved their chances of recovery, but the appeal court wasn't convinced. Melanie McNaught was coun- sel for the Duff erin-Peel Catholic District School Board, an inter- vener in the case. Th e board got involved to argue against the test the Divisional Court constructed to decide whether discrimination had occurred. She notes the Divisional When More is Too Much Court test reversed the onus by forcing respondents to refute an allegation of discrimination rather than requiring applicants to prove their claims. "Th e applicant should have to make out their case before the onus shifts to the respondent," McNaught says. Th e appeal court panel agreed that the Divisional Court had erred in its approach and noted that "the onus of proving dis- crimination on a balance of prob- abilities remains on the claimant throughout." Nevertheless, it found the result would have been the same despite the problems with the test. But the appeal court stopped short of prescribing a test along the lines of the one established for discrimination under s. 15 of the Charter of Rights and Freedoms and instead opted for a more fl exible approach. In doing so, it said there were im- portant diff erences between the Charter and the code, which it noted is only a quasi-constitu- tional document. "Th e precise nature of the evidence to be led and the stringency of the test to establish discrimination may depend on the context," Sim- mons wrote. For his part, Copes says the Irrelevant cases chewing up your research time? Get the best cases first. There's no bones about it. 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"We've just received the decision and we're still poring over it in detail with our law- yers," Mangat says. LT

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