Fourth, the respondent has submitted evidence of the appellant’s litigation conduct leading up to the trial. In an endorsement dated July 3, 2019, about a year and a half after the respondent had initiated her application (Burns v. Brown, 2019 ONSC 4004), W.L. MacPherson J. found that the appellant was litigating in bad faith stating, at para. 27 of her reasons: There are ample reasons to make a finding of bad faith which include: a) bringing the constitutional challenge and refusing to abandon same, despite being given opportunities to do so; b) the [appellant] abandoning several claims (orders of May 25, 2018 and November 6, 2018 to remain in effect and only be adjusted as of the March 2019; request to amend pleadings; disclosure of Canada Revenue Agency documents by applicant) during the motion in response to the court’s inquiry only, without any advance notice to the applicant or her counsel; c) the amount of time taken to deal with the motion including preparation of multiple factums and two-and-half-days of argument; d) the [appellant] disputing the consent order of November, 6, 2018 suggesting that he was under duress in signing same and misrepresenting to the court that Nightingale J. had directed the applicant as to the commencement date of reduced spousal support; e) the [appellant] alleging fraud and misrepresentation by the applicant’s former counsel, which was totally unfounded; f) the [appellant] alleging fraud by the applicant’s current counsel during argument, without any prior notice or foundation, and only retracting same upon questioning from the court; g) the main objective of the motion amounted to nothing more than “an appeal in disguise.”
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