A Toronto lawyer has failed in the latest instalment of his bitter separation battle with 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 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 Superior Court judicial review of the arbitrator’s award, which upheld its findings 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 filed on April 27, Moran’s lawyers argued the appeal was just another step in Cunningham’s “seemingly endless attempt to delay the enforcement of the original arbitration award.”
The panel of three judges dismissed his motion and added $1,500 to a mounting pile of cost orders against Cunningham in the case. The lawyer, who is representing himself, now owes Moran more than $50,000 in legal fees. He has told the judges he can’t afford to pay.
Cunningham and Moran lived together in a common law relationship between 1990 and 2002. They had one child but never married.
Moran initiated the litigation in 2004 after the separation when disputes arose about child custody and the property. That sparked a six-year scrap that has involved at least six lawyers, 10 Superior Court judges, and countless motions and cross-motions.
The matter even spawned a separate civil action in which Cunningham accused Moran and her lawyers of fraud, deceit, and breach of fiduciary duty for their representations of Moran’s financial affairs.
It was in his decision dismissing that separate action that Superior Court Justice Randall Echlin chided Cunningham for his approach. The judge called the suit a collateral attack on existing court orders.
“I further find that the claims contained in this action against Moran are frivolous, vexatious, and an abuse of process,” he wrote on Aug. 27.
“Interestingly, 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 integrity in the legal process.’
This description is a more apt characterization of Cunningham’s 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 carnival 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 Cunningham,” he wrote. “Nor should she be compelled to defend in instalments.”
Cunningham and Mayo originally agreed to have their case mediated and arbitrated in December 2006 on the eve of a scheduled trial.
Two months after the arbitrator, Thomas Bastedo, made his award to Moran in January 2008, Cunningham issued a notice of appeal despite an agreement 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 decision to the appeal court. He claimed in a factum dated April 28 that Greer had “erred in finding that the arbitrator was entitled to deference” because of his specialty 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 occurrence 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 alleging 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 affidavit explaining the lateness of his allegation, said he first 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.