Benjamin T. Glustein

The tenant appellants appealed an eviction order and a subsequent LTB order denying their request for a review.

The tenants had attended the LTB for their hearing but left during a lunch break because the elevators broke down, and they could not climb 18 flights of stairs due to a disability.

The LTB member dismissed their review request without a hearing, finding they should have telephoned the Board.

The Divisional Court allowed the appeal, holding that the LTB denied the tenants natural justice by failing to hold a review hearing to consider their evidence regarding their inability to participate.

The matter was remitted to the LTB for a review hearing.

The tenant appealed a Landlord and Tenant Board review decision that upheld an eviction order for rental arrears.

The tenant argued that his obligation to pay rent was discharged because the landlord's staff mistakenly refused his attempt to pay the arrears in cash.

The Divisional Court dismissed the appeal, finding no error of law in the LTB's conclusion that a refused payment does not erase the debt.

The Court also found the LTB's refusal to set aside the eviction order was reasonable given the tenant's stated refusal to comply with any order to pay arrears.

However, the Court granted the tenant a final opportunity to pay the arrears in cash to avoid eviction.

The appellant brought a motion in writing seeking an order to compel the Landlord and Tenant Board to produce transcripts and the record of proceedings for her statutory appeal.

The Divisional Court dismissed the motion, clarifying that under the Rules of Civil Procedure, the obligation to order transcripts and prepare the appeal book lies with the appellant, not the tribunal.

The court granted the appellant an extension of 30 days to comply with the Rules and perfect her appeal.

The appellant, Toronto Inspection Ltd., appealed a Master's order granting a co-defendant's motion to correct the names of 'John Doe' defendants to specify the appellant.

The appellant argued that only a plaintiff has standing to bring a misnomer motion and that the 'litigating finger' test was not met.

The Superior Court dismissed the appeal, holding that Rule 5.04(2) allows any party to move to correct a misnomer and that the statement of claim clearly pointed the litigating finger at the appellant as the concrete inspector.

The plaintiffs brought motions on consent to certify two class actions against Ontario and Canada arising out of staffing-related lockdowns at Ontario correctional institutions.

The plaintiffs alleged systemic negligence and breaches of sections 7 and 12 of the Charter.

The court found that the pleadings disclosed a cause of action, there was an identifiable class, the claims raised common issues, a class proceeding was the preferable procedure, and there were adequate representative plaintiffs.

The motions for certification were granted.

The defendants, including the former and current Commissioners of the OPP and Her Majesty the Queen, brought motions to strike portions of the plaintiffs' statement of claim alleging negligent supervision and training following an alleged assault by police officers.

The court found that the claim against the current Commissioner disclosed a reasonable cause of action but failed to plead sufficient material facts, striking it with leave to amend.

The motion to strike the claim against the former Commissioner was dismissed, as the court found the plaintiffs had sufficiently pleaded material facts regarding his knowledge of the officers' alleged incompetence and lack of training.

The defendant Sidhu brought a motion for summary judgment to dismiss the plaintiff's claim of negligent misrepresentation against him.

The plaintiff alleged that Sidhu made false representations about the potential earnings and mileage for an owner-operator trucking business, which induced the plaintiff to incorporate and suffer financial losses.

The court applied the Cognos test and found that there were genuine issues requiring trial regarding the existence of a special relationship, the accuracy of the representations, negligence, reasonable reliance, and causation.

The court dismissed the motion, noting that credibility assessments were necessary, and awarded partial indemnity costs to the plaintiff.

The court issued a notice under Rule 2.1.01 considering the dismissal of the plaintiff's action.

The plaintiff submitted written arguments opposing the dismissal, claiming he lacked notice of a prior dismissal order and had amended his claims.

The court found the current action to be an abuse of process, as it sought to relitigate identical claims against the same defendants that were previously dismissed.

The court noted the plaintiff's proper recourse was a motion to set aside the prior order under Rule 37.14(4), not a new action.

The action was dismissed without costs.

The defendants brought a motion for a mistrial during trial, alleging prejudice from a newspaper article and improper conduct by plaintiffs' counsel.

The court dismissed the mistrial motion, finding no real danger of prejudice as no jurors had read the article, and that appropriate judicial instructions could cure any potential harm.

The court also ruled on the admissibility of the plaintiffs' expert evidence regarding dependency loss, specifically allowing a scenario based on career advancement despite some foundational facts not being fully proven, emphasizing that the weight, not admissibility, of expert testimony is affected by unproven facts.

The court dismissed the plaintiffs' action as frivolous, vexatious, or an abuse of process under Rule 2.1.01 of the Rules of Civil Procedure.

The plaintiffs had sued the defendant, who was counsel for opposing parties in a prior action, alleging fiduciary duty, negligence, negligent misrepresentation, and obstruction of justice.

The court found that counsel owes no duty to an opposing party and that the factual basis for the claim, including allegations against judicial decisions and an "organized set up" with a judge, was legally unsustainable and frivolous.

The plaintiffs failed to deliver written submissions after being given notice under Rule 2.1.01(3).

The plaintiff employee brought a summary judgment motion seeking 24 months' common law notice following his without-cause termination.

The defendant employer sought summary judgment dismissing the action, arguing the plaintiff failed to mitigate his damages.

The plaintiff, an unskilled labourer, chose to retrain as a welder rather than apply for three comparable positions available at the employer's other locations.

The court found that the employer met its onus under the Michaels test to establish that comparable work was available and the plaintiff could have procured it.

The court held that the plaintiff's decision to retrain did not constitute reasonable mitigation in these circumstances, and his entitlement to damages ended when he chose not to pursue the available positions.

As the plaintiff had already received eight months' severance pay, the action was dismissed.

This costs endorsement followed successful summary judgment motions by the Bachly Defendants, the Township of Oro-Medonte, and the third party W.R. Hodgson, dismissing the plaintiffs' grading claims and the Bachly Defendants' third-party claim against Hodgson.

The court assessed the reasonableness and proportionality of the costs sought by the successful parties against the plaintiffs.

It determined that the plaintiffs were liable for the costs of the Bachly Defendants and the Township, and also for the third party Hodgson's costs, applying principles that allow for third-party costs against an unsuccessful plaintiff when the third-party proceedings were a natural and inevitable consequence of the plaintiff's action.

The court fixed specific amounts for partial indemnity costs for each successful party.

The plaintiff, an adult ESL student, brought an action for defamation and malicious prosecution against her former teacher.

She alleged that the teacher defamed her by falsely claiming she was stalking and harassing him, and maliciously prosecuted her by seeking two peace bonds.

The court dismissed the action, finding the plaintiff's evidence not credible and accepting the defendant's evidence that the plaintiff had engaged in a prolonged pattern of stalking and harassment.

The court held that the defendant's statements were substantially true and protected by qualified privilege, and that he had reasonable and probable cause to seek the peace bonds without malice.

The plaintiffs brought claims for lot grade deficiencies against the defendants (Bachly Investments Inc., 411931 Ontario Ltd. o/a Heights of Moonstone, The Township of Oro-Medonte) and a third party claim was brought by the Bachly Defendants against W.R. Hodgson.

The defendants and third party brought summary judgment motions to dismiss these claims, primarily arguing they were statute-barred by the Limitations Act, 2002, and that there was no evidence of professional negligence against Hodgson.

The court granted the summary judgment motions, finding that the plaintiffs' grading claims were statute-barred as they knew or ought to have known of the issues by summer/fall 2010, and that the plaintiffs failed to provide expert evidence establishing a breach of standard of care or causation against Hodgson.

The court also found that a prior release only covered a specific driveway issue and not the broader grading claims.

The court determined ongoing and retroactive child and spousal support following an earlier judgment on property and income issues.

Key issues included the appropriate income for retroactive calculations, the duration and quantum of ongoing spousal support, and whether retroactive spousal support should be adjusted for tax consequences due to non-deductibility.

The court fixed ongoing spousal support at the lower end of the mid-range, ordered it indefinitely subject to review, and applied a 30% reduction to retroactive spousal support for non-deductibility.

Following a jury verdict awarding the plaintiff damages for a motor vehicle accident, the defendants brought a threshold motion arguing the plaintiff's injuries did not meet the statutory exceptions under the Insurance Act.

The core issue was whether the accident caused the plaintiff's left knee injury, given his preexisting osteoarthritis.

The court preferred the plaintiff's expert evidence that the minor force of the accident converted his asymptomatic arthritis into symptomatic arthritis.

The court found the plaintiff met his burden of proof on causation for the knee injury, which satisfied the threshold requirements.

The defendants' motion was dismissed.

The defendants, Ammar Khan and Brink's Canada Ltd., brought a motion for summary judgment in a motor vehicle negligence claim arising from an accident.

The plaintiff, Victola Mayers, alleged Khan was liable.

The court applied the principles from Hryniak v. Mauldin and found no genuine issue requiring a trial regarding Khan's liability.

The court rejected both the plaintiff's "advance green light" theory, which was contradicted by an independent witness, and the "contributory negligence" theory, finding no evidence that Khan had a reasonable opportunity to avoid the accident.

The motion was granted, and the action was dismissed with costs.

The applicant sought a declaration of a half-interest in a property registered solely in the respondent's name, based on the doctrine of joint family venture and unjust enrichment.

The parties cohabited for 16 years and had three children together.

The court found that the relationship constituted a joint family venture and that the respondent retained a disproportionate share of the wealth accumulated during the relationship.

The court ordered a monetary award of $595,530, representing half the net value of the property at the date of trial.

Additionally, the court imputed an annual income of $150,000 to the respondent for support purposes, finding him intentionally under-employed.

The plaintiff, Steven Bresnark, and the defendant, Thomson Reuters Canada Limited (TR), brought cross-motions for summary judgment in a libel and breach of privacy action concerning an article published by TR.

TR also sought to strike the privacy claim.

The court granted TR's motion for summary judgment and to strike the privacy claim, dismissing the action.

The court found the action statute-barred due to the plaintiff's awareness of the article in 2012, the article was protected by qualified privilege for fair and accurate reporting of judicial proceedings, and no common law or Charter privacy right was engaged.

The plaintiff's motion for summary judgment was dismissed.

Following the dismissal of a motion to remove the respondent's counsel in a family law proceeding, the respondent sought costs of $88,729.26 on a substantial indemnity basis.

The moving parties argued the quantum was unreasonable and sought to have costs fixed at $30,000 payable in the cause.

The court found the respondent's counsel's hours and rates to be somewhat excessive compared to the moving parties' counsel, but acknowledged the importance of the motion.

The court fixed costs at $50,000, payable forthwith, rejecting the moving parties' argument that payment should be deferred until the equalization payment was determined.