Benjamin T. Glustein

The defendant brought a motion to remove the plaintiff's counsel from either the proposed class action or the plaintiff's related individual wrongful dismissal action due to a conflict of interest, and to temporarily stay the individual action.

The court found that counsel's duty of commitment to the plaintiff in the individual action conflicted with the sui generis duty owed to the proposed class members, as the actions shared overlapping issues regarding common employment and vacation pay calculation.

The court ordered counsel removed from one of the actions and temporarily stayed the individual action pending the certification motion.

The plaintiff, Robert Drynan, brought a motion to approve a third-party litigation funding agreement in a class action against Bausch Health Companies Inc. and related entities, alleging misleading marketing of COLD-FX® products.

The court addressed the defendants' objections concerning security for costs, litigation autonomy, overcompensation, and access to justice.

After amendments to the funding agreement to cap recovery for the funder and class counsel at 33.3% of proceeds and defer court approval for certain expenses, the court approved the agreement, finding it fair, reasonable, and conducive to access to justice, while protecting the defendants' interests.

This proposed class action concerned the alleged retention of DNA profiles by the Province of Ontario after individuals voluntarily provided samples for forensic DNA analysis that did not match any samples obtained under the Criminal Code.

The plaintiff moved for certification of the action, alleging breach of the Criminal Code, violation of section 8 of the Charter, and intrusion upon seclusion.

The defendant consented to certification shortly before the scheduled hearing.

The court certified the action as a class proceeding and addressed two outstanding issues: costs of the certification motion and the temporal limit of the proposed class.

The court adopted a hybrid approach for costs, ordering half payable forthwith and half in the cause, and fixed the quantum at $124,504.38.

The court also ordered that the temporal limit of the class definition be "without prejudice to the plaintiff bringing a future motion within this proceeding to certify an amended class" to protect future class members.

The plaintiff brought a motion to certify a class action alleging misclassification of salespersons and sales managers as independent contractors, which resulted in the denial of Employment Standards Act entitlements and Canada Pension Plan/Employment Insurance contributions.

The parties largely consented to certification, with the court approving the class definition and common issues, though excluding punitive damages due to a lack of factual basis.

The court also approved a revised litigation plan.

The defendants, RBC Insurance Agency Ltd. and Aviva General Insurance Company, sought to schedule a motion to stay an individual action and remove plaintiff's counsel due to an alleged conflict of interest, prior to the certification motion for a proposed class action.

The plaintiff, Kabir Singh, opposed this scheduling, arguing these issues should be determined at the certification hearing.

The court, applying section 12 of the Class Proceedings Act, 1992, found that hearing the conflict and stay issues before certification would ensure a fair and expeditious determination, preventing potential delays and issues with adequacy of representation if a conflict were found later.

The court ordered the defendants' motion to be heard before the certification motion.

The plaintiff brought a motion on consent for leave to proceed with a secondary market misrepresentation claim under the Securities Act and for certification of the action as a class proceeding for settlement purposes.

The parties reached a settlement of $700,000 to resolve allegations that the defendant pharmaceutical company made misrepresentations regarding antitrust investigations, its generic business, and the withdrawal of a product.

The court granted leave, certified the class action for settlement purposes, approved the notices, and appointed class counsel as the notice administrator.

The defendants brought a motion to dismiss the plaintiffs' action for lack of jurisdiction.

The plaintiff, a teacher, alleged that her principal sexually harassed and assaulted her, and that the school board reprised against her.

The plaintiff's union had declined to pursue a grievance on her behalf due to the passage of time.

The court applied the Weber test and held that the essential character of the dispute was workplace-related and fell within the exclusive jurisdiction of a labour arbitrator under the collective agreement.

The court found no 'remedial gap' that would grant it jurisdiction simply because the union chose not to pursue the grievance.

The motion was granted and the action was dismissed.

The plaintiffs sought court approval of a class action settlement agreement concerning allegedly defective Medtronic defibrillators, approval of class counsel fees and disbursements, and honoraria for representative plaintiffs.

The court approved the settlement and class counsel fees, finding the settlement fair and reasonable given the litigation risks and lack of reported injuries.

However, the request for honoraria for representative plaintiffs was dismissed due to insufficient evidence of exceptional contributions beyond typical representative plaintiff duties.

This class action concerned defective Medtronic Sprint Fidelis leads for implantable cardioverter defibrillators.

The plaintiffs moved for approval of a $26 million settlement, class counsel fees, and honoraria for representative plaintiffs.

The court approved the settlement as fair, reasonable, and in the best interests of the class, noting arm's-length bargaining and comprehensive investigation.

Class counsel's request for 30% contingency fees and disbursements was approved, upholding the strong presumption of validity for such agreements given the litigation's complexity and risks.

However, the request for honoraria for the representative plaintiffs was dismissed, as no exceptional circumstances or contributions beyond expected involvement were demonstrated.

The representative plaintiff brought a motion for consent certification of a class action for settlement purposes, approval of the settlement agreement, approval of class counsel fees and disbursements, approval of a representative plaintiff honorarium, and discontinuance of the action for online-only teachers.

The class action alleged misclassification of teachers as independent contractors, leading to unpaid Employment Standards Act entitlements.

The court approved all requested relief, finding the settlement fair and reasonable, the cy-près distribution appropriate, and the fees and honorarium justified given the risks and efforts involved.

The plaintiffs in a class action sought leave to amend their claim to add Graham Turner as a defendant, alleging personal liability for knowing receipt of trust funds and professional negligence related to a tax shelter program.

Turner opposed, arguing the claims were statute-barred under the Limitations Act, asserting the plaintiffs could have discovered the material facts earlier through due diligence, including publicly available corporate records.

The court granted the plaintiffs' motion, finding that it could not make a specific finding of fact that the limitation period had expired, particularly regarding Turner's "control" of Escrowagent and his role as counsel, which were not readily discoverable.

Turner was permitted to raise the limitations defence at trial.

The defendants, Aviva General Insurance Company and RBC Insurance Agency Ltd., sought directions to schedule Aviva General's proposed summary judgment motion before the certification hearing in a class action.

The plaintiff, Kabir Singh, opposed this sequencing request.

The court dismissed the defendants' request, finding that the summary judgment motion would not dispose of the entire proceeding, would require a full evidentiary record, and would likely lead to delays, increased costs, and potential interlocutory appeals, thus not promoting judicial efficiency or settlement.

The plaintiff brought a motion to certify a class action against Equifax arising from a massive data breach where hackers accessed the personal information of Canadian consumers.

Equifax opposed certification of several claims, arguing that it was plain and obvious they would fail because Equifax was a victim of the hack, not the perpetrator.

The court rejected Equifax's objections, finding that the law on intrusion upon seclusion, breach of provincial privacy statutes, breach of contract, and consumer protection was not settled in the context of a database defendant allegedly recklessly enabling a hacker attack.

The court certified the proceeding as a class action.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action for negligence and abuse of process arising from the defendants' garnishment efforts to enforce costs orders from a previous wrongful dismissal action.

The plaintiff brought a cross-motion for summary judgment seeking damages, alleging the garnishment caused his termination from his new employer.

The court granted the defendants' motion and dismissed the action, finding no duty of care is owed for bringing civil proceedings absent an abuse of process, and there was no evidence of malice or improper purpose by the defendants.

The court also found the plaintiff's action was not vexatious, and awarded costs to the defendants.

The plaintiff brought a motion to certify a class action and approve a $2.25 million settlement regarding the defendants' systemic collection of credit scores during the automobile insurance claims adjusting process, which the Privacy Commissioner found breached PIPEDA.

The court certified the action for settlement purposes, finding the settlement fair, reasonable, and in the best interests of the class.

The court also approved a 60-day opt-out period, a cy-près distribution to the Public Interest Advocacy Centre, the notice plan, a $15,000 honorarium for the representative plaintiff, and class counsel fees of $500,000 plus disbursements.

Following a successful summary judgment motion for payment of a real estate commission, the moving party sought costs.

The trustee opposed personal liability, arguing costs should be paid from funds held in court.

The investors argued the trustee should pay costs personally due to improper conduct.

The court ordered costs of $10,000 to be paid from the funds in court, as the moving party should not be prejudiced by the dispute between the trustee and investors, but without prejudice to the investors seeking recovery from the trustee in their ongoing litigation.

This decision addresses the costs arising from a prior ruling where Salvatore Benedetto was unsuccessful against 2453912 Ontario Inc. Benedetto argued for no costs, claiming the legal issue regarding deposit forfeiture under s. 21(4) of the Business Corporations Act was "novel." 2453912 Ontario Inc. sought costs, including substantial indemnity based on a Rule 49 offer to settle.

The court rejected the "novelty" argument, finding existing case law provided adequate guidance.

It also declined substantial indemnity, noting the Rule 49 offer lacked compromise and the underlying issue, while complex, presented reasonable uncertainty.

Partial indemnity costs of $10,000 were awarded to 2453912 Ontario Inc.

The plaintiff, Infinite Media Ltd., sued remBrand Sports Inc. and its president, Al Steele, for breach of a Master Sales Agreement (MSA), a promissory note, and a personal guarantee related to website development services.

Infinite sought outstanding principal, interest, future payments, administrative fees, legal fees, and damages for copyright infringement and punitive damages.

The defendants acknowledged liability for the principal under the note and guarantee but disputed other claims, arguing service termination and challenging personal liability for future payments.

The court found remBrand liable for outstanding principal, future payments, administrative expenses, and legal fees, and Steele jointly and severally liable for the principal, administrative expenses, and legal fees under the guarantee.

However, the court rejected Infinite's claims for a higher contractual interest rate on the note, personal liability of Steele for future payments, copyright infringement, and punitive damages due to lack of evidence and improper pleading.

The plaintiffs in a class action sought court approval for a settlement agreement with certain defendants, class counsel fees and disbursements, and honorariums for the representative plaintiffs.

The settlement amount was $37 million.

The court approved the settlement, finding it fair and reasonable given the litigation risks, including dissolved corporate entities and limitations issues.

The court also approved the 30% contingency fee for class counsel and $50,000 honorariums for each representative plaintiff, recognizing their exceptional involvement and exposure to costs.

The plaintiff sought leave to proceed with a class action for secondary market misrepresentation against a company and its officers.

The claims arose from an unauthorized investment made by the CEO, which was not fully disclosed in subsequent financial statements and press releases.

The court granted leave, finding a reasonable possibility that the CFO knew or deliberately avoided knowing about the unauthorized investment, and that a press release announcing the CEO's departure constituted a public correction, signaling concerns about the CEO's conduct related to the investment.