Benjamin T. Glustein

The plaintiff in a proposed class action regarding employee misclassification brought a motion to substitute herself with a new representative plaintiff.

The defendant opposed, arguing the new plaintiff's claim was statute-barred and her interests were misaligned with the class because she recently sought work with the defendant as an independent contractor.

The court granted the substitution, finding the new plaintiff had a tenable claim because discoverability of Employment Standards Act entitlements may be delayed when an employer represents a worker as an independent contractor.

The court also found her recent job search did not preclude her from adequately representing the class.

The plaintiff brought a motion to certify a class action against BMO Investments Inc. on behalf of investors who held BMO Mutual Funds through discount brokers.

The plaintiff alleged that BMO Investments improperly paid trailing commissions to discount brokers out of mutual fund assets, despite discount brokers providing no investment advice.

The court found that the plaintiff's claims for breach of trust, breach of fiduciary duty, breach of contract, breach of the Trustee Act, prospectus misrepresentation, and unjust enrichment all disclosed viable causes of action.

The court certified the class action, including a common issue for aggregate damages, and set the class end date as the date of the certification order.

The plaintiffs brought a motion for approval of a class action settlement regarding alleged securities misrepresentations by Colt Resources, Inc. The court approved the $950,000 settlement, finding it fair and reasonable given the litigation risks and the statutory liability limits under the Securities Act.

The court also approved the Plan of Allocation, the notice plan, a $5,000 honorarium for each representative plaintiff due to their exceptional efforts in initiating the claim, and class counsel fees of $300,000 plus disbursements.

Following the dismissal of the plaintiffs' appeal and motions, the court determined the scale and quantum of costs.

The court found that the plaintiffs' conduct, which included baseless allegations of fraud, conspiracy, and criminal conduct against the defendant's counsel, LawPro, and the LSO, was reprehensible, scandalous, and outrageous.

Consequently, the court awarded substantial indemnity costs to the successful parties, fixing the amounts at $12,000 for the defendant, $9,000 for LawPro, and $7,500 for the LSO.

The plaintiffs brought motions to compel the examination of a defendant on behalf of a corporate defendant and for further and better affidavits of documents from several defendants.

The parties agreed to dismiss the examination motion and portions of the production motion without prejudice.

The court ordered one defendant to produce certain financial documents relevant to personal enrichment and an itemized Schedule B list, but dismissed the remaining requests for further documents and better email descriptors, finding insufficient evidence of missing documents and that the current descriptors were proportionate.

The plaintiff brought motions to approve a $10 million national settlement in a class action regarding PayPal's foreign currency conversion practices, and to approve class counsel fees and a representative plaintiff honorarium.

The court found the settlement fair, reasonable, and in the best interests of the class, noting the significant litigation risks and the efficient direct-deposit distribution protocol.

The court also approved class counsel's 25% contingency fee request and awarded a $10,000 honorarium to the representative plaintiff for his exceptional efforts in initiating the litigation.

The plaintiffs in two class actions against Hyundai and Kia sought court approval for a proposed settlement agreement concerning allegedly defective Theta II 2.0-litre and 2.4-litre gasoline direct injection engines in certain vehicles.

The settlement provides for an extended lifetime powertrain warranty, reimbursement for past qualifying repairs and related expenses, compensation for vehicles sold at a loss or lost to engine fire, and a trade-in rebate program.

The court reviewed the settlement against the principles for class action settlement approval, including arm's-length bargaining, the amount of investigation, the zone of reasonableness, and the recommendations of counsel and representative plaintiffs.

Despite objections from a small percentage of class members, the court found the settlement to be fair, reasonable, and in the best interests of the class, approving it as it falls within the zone of reasonable outcomes given the litigation risks and benefits.

Zenith Aluminum Systems Ltd. (Zenith) sought to enforce two arbitral awards against 2335945 Ontario Inc. cob as Momentum Developments (Momentum), totaling over $400,000.

Momentum consented to the enforcement but brought a cross-application to stay the execution of these awards pending the disposition of a separate breach of trust action and counterclaim for delay and deficiencies.

The court dismissed Momentum's application for a stay, finding that the high bar for staying final judgments under s. 106 of the Courts of Justice Act was not met.

The court rejected the argument that s. 50 of the Arbitration Act precluded a stay, but affirmed that such stays are reserved for "very rare circumstances" (e.g., oppressive conduct) or where the three-part RJR-MacDonald test for interlocutory stays is satisfied, neither of which applied here.

The court also refused to apply the less restrictive Rule 20.08, as arbitral awards are treated as final judgments, not summary judgments.

This decision concerns a motion to certify a class proceeding arising from the downing of Ukraine International Airlines Flight PS752.

The court granted certification of the action but made significant modifications to the proposed terms of the Certification Order, Notice of Certification, Litigation Plan, and Opt-out Form.

Key modifications included extending the opt-out period to align with the Montreal Convention limitation period, removing requirements for court approval for minors/incapable persons and estate representatives to opt out, and deleting a proposed anonymity provision.

The court also restricted the disclosure of telephone numbers for notice distribution.

The Hordos (plaintiffs/appellants) appealed a Master's decision dismissing their motion for various relief, including removal of the defendant's counsel, discovery-related orders, and striking pleadings.

They also brought a Rule 59.06 motion to set aside the Master's order based on alleged fraud and fresh facts, and a motion for extraordinary relief such as interim costs, declaring LawPro and LSO vexatious litigants, and appointing a receiver for the LSO.

The court dismissed all of the Hordos' appeals and motions, finding no palpable and overriding error in the Master's decision, no evidence of fraud or material fresh facts to set aside the order, and no legal basis for the extraordinary relief sought.

The court affirmed the Master's finding that the Hordos' conspiracy theory was baseless.

This decision addresses procedural issues in a complex civil action involving claims for delayed delivery of residential lots and a right of first refusal.

The court considered whether a previously agreed-upon bifurcated trial could proceed given new limitations defences proposed by the defendant, and whether the action should remain under a "One Judge Model" case management pilot program.

The court ruled that a single trial was necessary to avoid the risk of inconsistent judgments due to overlapping evidence and credibility issues related to the limitations defences.

Furthermore, the action was removed from the pilot program because the parties consistently engaged in formal, contested interlocutory proceedings, contrary to the program's emphasis on informal dispute resolution.

Following the dismissal of the plaintiff's summary judgment motions, the successful defendant sought costs on a partial and substantial indemnity basis, relying on an offer to settle.

The plaintiff argued the defendant should be denied costs due to delay, or that costs should be in the cause, and sought costs thrown away for prior adjournments.

The court awarded the defendant partial indemnity costs, finding the offer to settle did not provide a full compromise.

The court declined to reserve costs to the cause, as the summary judgment motions were decided on their merits.

The court also awarded the plaintiff $2,500 in costs thrown away due to the defendant's prior delays, which were deducted from the defendant's total costs award.

Two competing groups of plaintiffs sought carriage of a proposed class action against the Islamic Republic of Iran and Ukraine International Airlines arising from the downing of Flight PS752.

The Arsalani plaintiffs relied on the commercial activity exception to state immunity, while the Gorji plaintiffs relied on the terrorist activity exception.

The court awarded carriage to the Arsalani plaintiffs, finding their funding agreement, fee structure, counsel experience, and inclusion of the airline as a defendant from the outset made their action in the best interests of the class.

The Gorji and Zarei actions were stayed.

The defendant in a proposed class action regarding mutual fund trailing commissions sought a direction that its proposed summary judgment motion be heard concurrently with the plaintiff's certification motion.

The court dismissed the request, finding that the summary judgment motion would require significant responding evidence, lengthy cross-examinations, and would increase expense and delay.

The court held that hearing the certification motion first would be more efficient and could narrow the issues for any subsequent summary judgment motion.

Following a decision removing the plaintiff's counsel in either the class action or individual action and staying the individual action, the successful defendant sought partial indemnity costs of $20,000.

The plaintiff opposed, arguing for no costs or a nominal amount due to divided success and duplication of work.

The court found the defendant was successful on the motion, which involved complex issues of conflict of interest and standing.

After a slight reduction for duplication of research from a prior scheduling motion, the court fixed costs at $16,050 plus disbursements and HST.

Following the dismissal of the defendant's anti-SLAPP motion in a defamation action, the plaintiff sought partial indemnity costs of $61,000.

The court considered section 137.1(8) of the Courts of Justice Act, which presumes no costs are awarded to a responding party unless appropriate in the circumstances.

The court found that the defendant's expression related to a matter of public interest and the motion was not frivolous or brought for a strategic purpose.

Consequently, the plaintiff failed to rebut the statutory presumption, and no costs were ordered.

The plaintiff bank brought a motion for summary judgment against a corporate defendant for amounts owing under loan agreements and against an individual defendant on personal guarantees.

The bank argued that a Request to Pay from the Canada Revenue Agency constituted an event of default.

The individual defendant argued the request was sent in error, the tax issue was resolved, the corporation was never in arrears, and the bank failed to provide reasonable notice before enforcing its security.

The court found genuine issues requiring trial regarding whether an event of default occurred and whether reasonable notice was provided, and dismissed the motion for summary judgment.

The plaintiff bank brought a motion for summary judgment against a corporate borrower and an individual guarantor for outstanding loan amounts.

The corporate borrower did not respond, and summary judgment was granted against it.

The individual guarantor opposed the motion regarding a $200,000 guarantee, raising defences of non est factum and fraud, alleging the bank's representative misrepresented the extent of the guarantees required.

The court found a genuine issue requiring trial regarding the enforceability of the $200,000 guarantee.

The court also declined to grant partial summary judgment on two other undisputed guarantees, finding the issues cannot be readily bifurcated and would not advance the action as a whole.

The representative plaintiff brought a motion to approve a $700,000 settlement in a securities class action against the defendants.

The court approved the settlement, finding it fair and reasonable given the significant risks of litigation and the overlapping U.S. settlement that covered most class members.

The court also approved class counsel's fees and a cy-près distribution of the net settlement funds to two investor protection clinics, as direct distribution was uneconomical.

However, the court denied the representative plaintiff's request for a $15,000 honorarium, finding her contributions did not go beyond what is typically expected, and directed those funds to the cy-près recipients.

The defendant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation claim.

The plaintiff, a real estate agent, sued the defendant over articles and comments posted on WeChat regarding the defendant's dissatisfaction with the plaintiff's services during a 2014 home purchase.

The court found that while the expression related to a matter of public interest, the plaintiff established that her claim had substantial merit and that there were grounds to believe the defendant had no valid defence.

Furthermore, the court held that the harm suffered by the plaintiff outweighed the public interest in protecting the defendant's expression.

The motion was dismissed.