Benjamin T. Glustein

The plaintiffs in a class action regarding a charitable donation tax shelter brought a motion to compel the defendants' former legal counsel to produce their client files and answer questions refused during discovery.

The plaintiffs argued that solicitor-client privilege was vitiated by the fraud exception, or alternatively, waived through disclosure of a tax opinion and sharing of information with third-party consultants.

The court dismissed the motion, holding that the fraud exception applies only to criminal conduct, not civil fraud.

The court further held that disclosure of the stand-alone tax opinion did not waive privilege over the entire file, and that communications shared with third-party consultants were protected by common interest privilege and the functional extension of solicitor-client privilege.

Following the successful dismissal of the plaintiffs' defamation action under the anti-SLAPP provisions of the Courts of Justice Act, the moving party defendants sought their costs.

The plaintiffs argued that the court should apply the appropriateness exception under s. 137.1(7) to award partial indemnity costs instead of the presumptive full indemnity costs.

The court rejected the plaintiffs' arguments, finding no basis to depart from the full indemnity presumption, and awarded the defendants their costs on a full indemnity basis (and substantial indemnity for one defendant on a pro bono retainer), totaling over $383,000.

The plaintiffs, a newspaper publisher and his company, brought an action for defamation, misfeasance in public office, inducing breach of contract, and wrongful interference with economic relations against several city councillors, school board trustees, and a media company.

The action arose from statements made by the defendants criticizing articles published by the plaintiffs as homophobic and transphobic, and advocating for the cessation of city advertising in the plaintiffs' newspaper.

The defendants brought motions under s. 137.1 of the Courts of Justice Act to dismiss the action as a strategic lawsuit against public participation (SLAPP).

The court granted the motions, finding that the defendants' expressions related to matters of public interest.

While the defamation claim had substantial merit, the plaintiffs failed to establish that the other claims had merit, and failed to show that the defendants had no valid defences, including fair comment, qualified privilege, and responsible communication.

Furthermore, the court found that the public interest in protecting the defendants' expression outweighed any harm suffered by the plaintiffs.

The defendant sought to schedule an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act in a Small Claims Court action.

The court, relying on the Ontario Court of Appeal's decision in Laurentide Kitchens Inc. v. Homestars Inc., ruled that anti-SLAPP motions are incompatible with the summary procedures and objectives of the Small Claims Court, regardless of whether they are heard by a deputy judge, administrative judge, or a Superior Court judge sitting as a Small Claims Court judge.

Consequently, the anti-SLAPP motion was not scheduled.

Instead, the court scheduled a motion to transfer the existing Small Claims Court action to the Superior Court of Justice, allowing the defendant to pursue the anti-SLAPP relief in the appropriate forum.

The applicant, Serenity Valley P. Lawn Management Inc., sought to assess the legal accounts of the respondent law firm, Lenczner Slaght Royce Smith Griffin LLP, under sections 3 or 9 of the Solicitors Act.

Serenity, as a third-party payor, argued for an assessment based on "special circumstances" including alleged pressure to pay and insufficient fee details.

The court dismissed the application, ruling that Serenity was not the law firm's client (precluding assessment under s. 3) and failed to demonstrate "special circumstances" under s. 9.

The court emphasized that Serenity was a sophisticated party, represented by counsel, who had contractually agreed to pay reasonable legal fees and signed a release, and did not protest the fees or reserve rights despite receiving detailed information.

The court also found no evidence that the legal fees were excessive given the complexity of the enforcement litigation.

This decision concerns the costs arising from the dismissal of the plaintiff's motion for leave to commence a secondary market securities class action and to certify the action.

The defendants sought substantial indemnity costs, while the plaintiff argued for partial indemnity and a discount due to the alleged novel and public interest nature of the litigation.

The court awarded partial indemnity costs of $693,805.39, finding no basis for substantial indemnity as there was no reprehensible conduct or unproven fraud allegations.

The court also rejected the argument for a discount under s. 31(1) of the Class Proceedings Act, concluding that the issues were not novel or of broad public interest, particularly as they had been previously litigated.

A minor deduction was made for online research disbursements.

The plaintiffs in two related actions sought an interim Mareva injunction against the defendants, alleging a fraudulent investment scheme involving the purchase and resale of used vehicles.

The court found a strong prima facie case of fraud, noting evidence of non-existent purchasers, missing funds, and the transfer of assets by the personal defendant.

The court granted the Mareva injunction in the standard form, rejecting the defendants' request for an adjournment and their proposed terms allowing discretionary withdrawals for living expenses and business operations.

The plaintiff sought leave to bring a statutory secondary market misrepresentation claim under the Securities Act and to certify a class action for both statutory and common law negligent misrepresentation claims.

The claims arose from the defendant mining company's alleged failure to immediately disclose a pit wall instability and subsequent rock slide at its Chilean copper mine.

The court dismissed the motion for leave, finding no reasonable possibility of success that the events constituted a 'change' to the company's business, operations, or capital, as they were inherent mining risks managed in the ordinary course.

The court also dismissed the certification motion for the common law claim, holding that individual issues of reliance made a class proceeding unmanageable and not the preferable procedure.

The representative plaintiff brought a motion to approve a class action settlement regarding unpaid overtime and holiday pay for television production workers misclassified as independent contractors.

The settlement provided for a $1 million payment if a proposed collective agreement was ratified, or $2.5 million if it was not.

The court approved the settlement as fair and reasonable, noting it avoided significant litigation risks regarding certification and individual damages proof.

The court also approved a 30% contingency fee for class counsel and a $7,500 honorarium for the representative plaintiff due to her exceptional involvement in collective bargaining.

The plaintiff brought motions for approval of a class action settlement, plan of distribution, and class counsel fees in a securities class action alleging goodwill misrepresentation.

The court approved the settlement of US$3.65 million, finding it fair and reasonable given the significant risks of the litigation, including the primary market claims being potentially statute-barred and the defendants' dwindling insurance proceeds.

The court also approved the plan of distribution, the appointment of the settlement administrator and referee, and class counsel's 33% contingency fee of $1,353,246.25.

The plaintiff brought a motion to certify a class action against the manufacturers of COLD-FX products, alleging that representations that the products were 'proven by science' or 'clinically proven' to reduce cold and flu symptoms were false and misleading.

The court found that the plaintiff met all the requirements for certification under section 5 of the Class Proceedings Act.

The court held that the claims under the Consumer Protection Act, the Competition Act, and for unjust enrichment disclosed valid causes of action, as reliance is not required for these claims.

The court certified the class and the proposed common issues against Bausch Health Canada Inc. and Valeant Canada LP, finding that a class proceeding was the preferable procedure.

The plaintiff brought a motion to certify a class action against TransUnion arising from a data breach where hackers accessed the credit profiles of 37,444 individuals.

The plaintiff alleged intrusion upon seclusion, negligence, and breach of provincial privacy statutes.

The court certified the negligence and certain provincial privacy statute claims, finding they disclosed a cause of action and met the certification criteria.

However, the court refused to certify the intrusion upon seclusion claim, as binding authority established it does not apply to database defendants for hacker attacks, and struck claims under the privacy statutes of Manitoba, Newfoundland and Labrador, and British Columbia for lack of subject matter jurisdiction.

The plaintiffs in two related class actions sought approval of their retainer agreements and Class Counsel's legal fees following a settlement.

The court found the retainer agreements complied with the Class Proceedings Act and were understood by the representative plaintiffs.

The court also approved the negotiated collective fee of $1,989,507.91 for Class Counsel across Canada, finding the 1.1 multiplier reasonable given the results achieved, the risks involved, and the extensive work performed.

The plaintiff withdrew its motion for an interlocutory injunction regarding the alleged misappropriation of confidential information by former employees.

The defendants sought costs of the abandoned motion on a substantial indemnity scale under Rule 37.09(3).

The court exercised its discretion to order costs in the cause, finding that the plaintiff acted reasonably in pursuing the injunction initially and that the work done on the motion would be useful at trial.

The plaintiff sought leave to proceed with a statutory secondary market misrepresentation claim under Part XXIII.1 of the Securities Act and to certify the proceeding as a class action.

The claim alleged that the defendants failed to disclose material risks regarding the potential suspension of a mining license in Guatemala due to a lack of indigenous consultation.

The court found that the plaintiff established a reasonable possibility of success at trial based on credible expert evidence regarding Guatemalan law and economic materiality.

The court granted leave and certified the global class action, rejecting the defendants' objections regarding the representative plaintiff and the inclusion of foreign shareholders.

The defendants in two related class actions brought motions to compel the representative plaintiffs to answer questions refused during examinations for discovery.

The refused questions related to the plaintiffs' individual medical and employment histories, reasons for detention, and other individual experiences.

The court dismissed the defendants' motions, holding that discovery prior to a common issues trial is limited to the common issues.

The court found that the individual damages questions were not relevant to the common issues of systemic negligence or aggregate damages, which must be determined without reference to the circumstances of individual class members.

The defendants in two related class actions brought a motion seeking production of Class Counsel's detailed time and fee records (Fee Details) in advance of a scheduled fee approval motion.

Class Counsel sought a multiplier of approximately three on its docketed time, totaling nearly $5 million in fees.

The court granted the motion, finding that the Fee Details were necessary for the defendants and the court to assess whether the requested fees were fair and reasonable, particularly given Class Counsel's assertions that there was no duplication of work among the national consortium of law firms.

The applicant father brought a motion seeking a shared parenting plan, joint decision-making responsibility, and imputed income for the respondent mother.

The respondent mother opposed and sought imputed income for the father, along with spousal and child support.

The court adjourned the financial issues but determined the parenting issues.

Finding that the mother was the historical primary caregiver and noting communication concerns from the father, the court denied a shared parenting plan.

The father was granted parenting time on alternating weekends plus one overnight per week, and the parties were granted joint decision-making responsibility for major decisions.

The applicant father brought a motion for a temporary shared parenting plan on a 2-2-3 schedule for the parties' two young children.

The respondent mother opposed the motion, seeking to maintain a schedule with no overnight parenting time, relying on uncorroborated allegations of family violence.

The court found that the father had historically shared parenting responsibilities and that the mother's unilateral termination of overnight access was not justified by the evidence.

The court granted the motion, ordering a phased-in 2-2-3 shared parenting schedule and shared decision-making.

The applicant insurer appealed an arbitrator's decision in a priority dispute regarding accident benefits.

The arbitrator had found that the applicant failed to establish that the claimant and his co-parent were spouses under s. 224(1)(c)(ii) of the Insurance Act, making the applicant the priority insurer.

The Superior Court of Justice applied the appellate standard of review, finding no extricable error of law in the arbitrator's application of the M. v. H. criteria for a conjugal relationship.

Applying the palpable and overriding error standard, the court held that the arbitrator's conclusion was supported by the evidence, which included contradictory testimony and surveillance evidence of limited weight.

The appeal was dismissed.