Benjamin T. Glustein

In a certified class action regarding the employment classification of Uber drivers and delivery persons, both parties brought motions to compel answers to questions refused during examinations for discovery.

Uber also brought a motion under s. 15(2) of the Class Proceedings Act for leave to examine ten additional class members.

The court dismissed both refusals motions, finding the refused questions were irrelevant to the common issues, overbroad, or lacked foundation.

The court granted Uber's motion to examine the additional class members, finding their evidence regarding individual choices and interactions with the Uber app was highly relevant to the common issues, necessary, and would not cause undue burden.

The examinations were limited to a half day per class member.

The moving parties, who were class members in a certified class action regarding defective heater-cooler devices, sought an extension of time to opt out of the class action after the deadline had passed.

They had recently discovered they contracted a severe infection from the device and wished to pursue an individual action.

The court applied the Johnson test, finding that while the moving parties established excusable neglect for missing the deadline, they failed to demonstrate that a late opt-out would not prejudice the defendants.

The defendants had already reached a settlement in principle in the class action based on the known number of opt-outs, and allowing a late opt-out would vitiate the integrity of the class action process.

The motion was dismissed.

The plaintiff brought motions for court approval of a $1.95 million settlement agreement and class counsel fees in a class action against BMO Trust Company and BMO InvestorLine Inc. The action alleged the defendants excessively withheld taxes on RRIF withdrawals.

The court approved the settlement, finding it fair and reasonable given the significant litigation risks, including a statutory bar defence under the Income Tax Act.

The court also approved a cy-près distribution of the net settlement funds to HelpAge Canada, as direct distribution to class members was deemed impractical and disproportionately costly.

Class counsel's 30% contingency fee and disbursements were approved as fair and reasonable.

The plaintiff brought a motion under the Class Proceedings Act, 1992 for approval of a settlement agreement, class counsel fees, and a representative plaintiff honorarium.

The class action alleged the employer failed to properly administer paperwork for statutory leaves, resulting in lower pension service for affected employees.

The court approved the $826,836 settlement as fair and reasonable, noting the risks of litigation including limitation defences and class fracturing.

The court also approved class counsel's contingency fees of $301,575.80.

However, the court denied the request for a $5,000 honorarium for the representative plaintiff, finding no exceptional circumstances or financial hardship to justify the payment.

An individual claimant in a class action regarding administrative segregation brought a motion seeking approval to use confidential placement data of other inmates.

The claimant's counsel had inadvertently gained access to and downloaded this data from the claims administrator's database due to a legacy system error.

The court dismissed the motion, finding no basis under PIPEDA, the Privacy Act, or the Class Proceedings Act to permit the disclosure of the personal information, as it would not advance access to justice and would violate class members' privacy rights.

Furthermore, the court found the data was not relevant to the claimant's individual claim.

The plaintiff brought motions to approve a $60 million settlement in a class action concerning historical institutional abuse at Ontario Training Schools between 1953 and 1984.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, noting the significant litigation risks and the benefits of a trauma-informed claims process.

The court also approved Class Counsel's contingency fee of 28.5%, a $15,000 honorarium for the representative plaintiff, the disclosure of class member contact information to the Public Guardian and Trustee, and a motion by a class member to rescind his prior opt-out due to medical difficulties.

This was a certification motion in a proposed national employment class action alleging that commission-only mortgage specialists were not paid vacation and holiday pay on their full variable compensation contrary to the Canada Labour Code and related contractual and equitable duties.

The court held that the pleaded claims for breach of contract, negligence, breach of fiduciary duty, unjust enrichment, breach of trust, and breach of duty of good faith were not plainly doomed to fail, and that there was some basis in fact for common liability issues and aggregate damages.

The court also held that the common issues predominated for preferable procedure purposes despite disputes about limitation periods and varying employment documents.

Certification was granted except for punitive damages, for which the record did not provide some basis in fact.

The defendant brought a motion to strike the self-represented plaintiff's third iteration of a statement of claim.

The plaintiff alleged various causes of action including fraud, breach of contract, and negligence arising from his use of the defendant's order execution-only investment platform.

The court found the 124-page claim to be incomprehensible, devoid of material facts, and replete with evidence and legal maxims.

Concluding that the plaintiff was incapable of drafting a compliant pleading despite multiple opportunities, the court struck the claim without leave to amend and awarded substantial indemnity costs to the defendant.

The defendants brought a motion under Rule 37.14(b) of the Rules of Civil Procedure to set aside a summary judgment order granted by Justice Stevenson on January 8, 2025.

The defendants' counsel served a last-minute motion to remove himself as counsel and adjourn the hearing at 7:48 pm the night before the hearing.

Counsel did not attend the hearing, claiming an unexpected medical matter.

The court dismissed the motion to set aside, finding that: (1) the medical evidence did not support an urgent medical condition preventing counsel's attendance; (2) counsel made an informed decision not to attend without proper reason; and (3) the defendant's email at 10:22 am did not establish insufficient notice.

The court awarded partial indemnity costs of $6,000 to the plaintiffs.

The court approved a class action settlement regarding balcony guardrail failures at the Matrix Towers in Toronto, which led to residents being deprived of balcony access for up to 3.5 years.

The settlement provides a lump sum per unit, regardless of unit size, and includes approval of class counsel fees and disbursements but denies honoraria for the representative plaintiffs.

The decision reviews the risks of litigation, the fairness of the settlement, comparator cases, and the legal standards for settlement approval, counsel fees, and honoraria.

The representative plaintiffs, on behalf of a class of Ontario franchisees, sought production of documents from the defendants (Shoppers Drug Mart Inc. and Shoppers Drug Mart (London) Ltd.) to support a “bottom-up” damages assessment for individual class members under section 25 of the Class Proceedings Act, 1992.

The Court of Appeal had previously found Shoppers liable for breach of contract and duty of good faith, and ordered that damages be determined through an individual issues process.

The defendants opposed production on grounds of proportionality, prematurity, and lack of expert evidence.

Justice Glustein granted the motion, ordering production of the requested documents for all class members subject to the 2002 Associate Agreement for the relevant years, finding the request reasonable and proportionate in light of the litigation’s scope and the evidence before the court.

The court approved a class action settlement between Elias Faiz and Canadian All Care Inc. (operating as Canadian All Care College) regarding the college’s Diagnostic Medical Sonography program.

The settlement provides $1.4 million in compensation for non-tuition losses to class members, with a minimum of $450 per month of enrollment.

The court approved the settlement, the contingency fee agreement, class counsel fees and disbursements, the appointment of Verita as claims administrator, and the notice plan, but declined to award an honorarium to the representative plaintiff, Faiz, finding no exceptional circumstances.

The decision reviews the legal principles for settlement approval, contingency fees, and honoraria in class actions.

This decision addresses the issue of costs following the release of the Canada RFD Decision in the Fontaine litigation.

The court considered whether the unsuccessful Respondents should be awarded costs, despite not prevailing on the motion.

The court reviewed the parties’ written submissions and the relevant legal principles, ultimately concluding that there were no exceptional circumstances justifying a costs award to the unsuccessful party.

The court declined to order costs of the hearing.

The plaintiffs brought a motion to compel answers to refusals and questions taken under advisement from the examination for discovery of the defendants’ representative.

The court considered the scope of discovery in a class action, focusing on whether the questions related to certified common issues.

The court ordered answers to certain questions and refusals to others, based on relevance and proportionality to the common issues.

No costs were awarded, as both parties had almost equal success.

The Attorney General of Canada brought a Request for Direction seeking to summarily dismiss or strike a proceeding known as "Metatawabin RFD #2," which was filed by several St. Anne's Indian Residential School claimants.

The claimants alleged that Canada breached prior court orders by failing to disclose updated Person of Interest reports to individuals whose claims had already been concluded.

The Ontario Superior Court of Justice summarily dismissed and struck the claimants' request, finding that Canada complied with its obligations under the prior orders and was not required to disclose the reports for concluded claims.

Additionally, the court ruled that the claimants' request was time-barred and that certain requested remedies were moot or outside the court's jurisdiction.

The decision addresses a motion by David Peter McMath and Darcy Loyie to stay their motion for leave to appeal a summary judgment decision dismissing their individual claims for additional damages arising from administrative segregation, pending the outcome of other test cases.

The court applies the RJR-MacDonald test for a stay and finds that while there is a serious question to be tried, the applicants failed to establish irreparable harm or that the balance of convenience favours a stay.

The motion is dismissed.

The plaintiff, a residential tenant, brought a motion for an interlocutory injunction against a neighbouring bar and its landlords, alleging nuisance from amplified sound and noise vibrations.

The plaintiff sought orders restricting the bar's operations, requiring the installation of a noise limiter, and compelling police response to complaints.

The court dismissed the motion, finding the plaintiff failed to establish irreparable harm or that the balance of convenience favoured an injunction under the RJR-MacDonald test.

The court also found the plaintiff failed to establish a strong prima facie case of nuisance under the alternative Hamilton test, noting the lack of expert evidence regarding sound levels in the plaintiff's apartment.

The plaintiffs brought two motions in a class action: one to approve a settlement agreement with Graham Turner LLP, declare notice not required under s. 19 of the Class Proceedings Act, approve a notice plan for class members, and grant leave to remove Emily Flammini as a representative plaintiff; and a second motion to approve Class Counsel's legal fees, the Class Proceedings Fund's levy, and the use of the remaining settlement fund for ongoing disbursements.

The court approved the settlement as fair and reasonable, found notice of the hearing unnecessary given the use of funds for disbursements, approved the proposed notice plan, and granted the removal of the representative plaintiff.

Class Counsel's fees and the CPF levy were approved, and the balance of the settlement fund was ordered to be held in trust for the class and applied towards ongoing disbursements.

The plaintiff brought motions for approval of a settlement agreement, a discretionary fund, class counsel fees, and a notice program in a class action concerning allegedly defective metal-on-metal hip implants.

The court approved the claims-made settlement and the $750,000 discretionary fund, finding them fair, reasonable, and in the best interests of the class given the significant litigation risks.

The court also approved a 25% contingency fee for class counsel and a $1.25 million contribution from the defendants towards fees and disbursements.

However, the court dismissed the representative plaintiff's request for a $7,500 honorarium, finding no exceptional circumstances of personal hardship.

The plaintiffs in a class action sought to certify additional common issues.

The Landlord Defendants brought a preliminary motion to prevent this, arguing that a previous "Further Certification Order" (FCO) was a final certification order, or alternatively, that the plaintiffs required leave under s. 8(3) of the Class Proceedings Act, 1992, which should be denied.

The court dismissed the preliminary motion, finding no objective agreement that the FCO was a final certification order and that, consequently, no leave under s. 8(3) was required as the proposed motion was a continuation of the certification process, not an amendment to a final order.