Benjamin T. Glustein

The plaintiff, Jooli Park, brought a motion for certification of a class action against Samyang Foods Co. for settlement purposes, approval of a settlement agreement with Samyang, dismissal of the action against the non-settling defendants (Nongshim, Ottogi, Korea Yakult, and Paldo), approval of class counsel fees and disbursements, payment of an honorarium to Park, and cy-près distribution of remaining settlement funds.

The court granted all requested relief except for the honorarium to Park, finding that her contributions were not exceptional enough to warrant it.

The settlement with Samyang was approved, and the action against the non-settling defendants was dismissed without costs, considering the increased litigation risks after an unsuccessful jury trial in a related US class action.

The defendants brought a motion for summary judgment to dismiss the plaintiff's oppression action on the basis that the plaintiff lacked standing as a shareholder, officer, or director.

The plaintiff failed to file responding evidence and instead brought a motion to amend the claim, which the defendants opposed as statute-barred.

The court granted summary judgment dismissing the action and dismissed the motion to amend.

The court further ordered the plaintiff's lawyer to personally pay $20,000 in substantial indemnity costs under Rule 57.07(1), finding that the lawyer caused costs to be incurred unnecessarily by taking untenable positions, failing to attend court, and breaching peremptory deadlines.

The applicants sought a declaration that their motor vehicle insurance policy with the respondent was valid, or alternatively, relief from forfeiture, after the respondent denied coverage following an accident involving the applicants' son.

The respondent had voided the policy because the applicants failed to disclose upon renewal that their son had obtained his G2 license and was living in the household.

The court found that the failure to disclose the son's G2 license was a material change in risk that breached the Insurance Act and Statutory Conditions, rendering the policy void.

The court also denied relief from forfeiture, holding that the failure to advise of a material change in risk constitutes non-compliance with a condition precedent, not imperfect compliance with a policy term.

The plaintiffs in a class action sought court approval for retainer agreements, payment of disbursements, a cy-près distribution of remaining settlement funds to the Breakfast Club of Canada, and the discontinuance of the Ontario action without costs.

This motion followed a Supreme Court of Canada decision in a parallel BC action that denied certification for both indirect and direct purchaser classes, significantly diminishing the prospects of success for the Ontario action.

The court approved all requested relief, finding the retainer agreements fair, the disbursements reasonable, the cy-près distribution appropriate given the small remaining funds and rational connection to the class, and the discontinuance justified due to the remote chances of success and lack of prejudice to class members.

The applicants sought an order for the assessment of legal bills rendered by the respondent law firm under the Solicitors Act, arguing that no final bill was delivered or, alternatively, that special circumstances existed.

The court found that all bills delivered prior to and including the last bill in October 2013 were interim bills, meaning no final bill was ever issued, thus permitting an assessment as of right.

The court further determined that even if a limitation period applied, numerous "special circumstances" existed, including the delivery of 39 bills over an eight-year retainer, involvement of 11 lawyers, billing for file reviews, lack of transparency regarding hourly rates, and internal firm pressure to bill for unnecessary work, which would justify an assessment.

The court rejected the respondent's preliminary objections regarding the applicant's affidavit and claims of bad faith based on animosity between counsel.

The applicants sought to transfer an appeal from the Mining and Lands Tribunal to the Superior Court of Justice under section 107 of the Mining Act.

The underlying appeal concerned the refusal of a permit by the Cataraqui Region Conservation Authority under the Conservation Authorities Act for a pool house.

The court dismissed the application, finding it lacked jurisdiction because the original proceeding was not "under the Mining Act." Even if jurisdiction existed, the court would not have exercised its discretion to transfer, as the matter fell within the specialized expertise of the Tribunal and did not raise general legal principles outside its scope.

The court also rejected arguments regarding tribunal delay and the deteriorating condition of the structure, noting the applicants' own conduct in building without a permit.

Following the dismissal of the plaintiff's class action on a summary judgment motion, the successful defendant sought partial indemnity costs of $275,000.

The plaintiff argued the amount was unreasonable and duplicative of costs from an earlier certification motion, suggesting $50,000 was appropriate.

The court reviewed the principles of costs in class actions, noting the 'bet the company' nature of the litigation justified significant costs, but reduced the claimed amount due to excessive hours billed for preparation and cross-examination.

The court found no duplication and fixed costs at $215,000.

The defendant, Michael R. Elliott, brought a motion to strike the plaintiff, Tahar Amrane's statement of claim without leave to amend, pursuant to Rules 21.01(1)(b), 21.01(3)(d), and 25.11 of the Rules of Civil Procedure.

Elliott, as manager of the Law Society of Ontario's Compensation Fund, had confirmed the rejection of Amrane's claim for compensation.

Elliott argued that the action should be struck because he benefited from statutory immunity under section 9 of the Law Society Act, he owed no private law duty of care to Amrane as a claimant to the Fund, and the action constituted an impermissible collateral attack on the Fund's decision.

The court agreed with Elliott, finding that Amrane's allegations did not establish bad faith, no private law duty of care existed, and the action was an abuse of process.

The motion to strike was granted, and leave to amend was denied.

Costs were awarded to Elliott in the amount of $200.

The plaintiffs brought a motion for certification of a class action, approval of a $1 million settlement agreement, and approval of class counsel's fees and disbursements.

The action alleged misrepresentations in WesternOne Inc.'s public documents regarding a construction project.

The court granted the motion, certifying the action, approving the settlement as fair and reasonable given the litigation risks, and fixing class counsel's fees and disbursements.

The net settlement fund, after deductions, was directed to the Access to Justice Fund via a cy-près payment due to the impracticality and uneconomical nature of direct distribution to individual class members.

The purchaser, Salvatore Benedetto, failed to close an Agreement of Purchase and Sale for three properties, having paid a $100,000 deposit held by Re/Max.

Benedetto had signed the APS "In Trust For A Company to be Incorporated without any Personal liabilities" relying on s. 21(4) of the Business Corporations Act to argue the deposit should be returned.

The vendor, 2453912 Ontario Inc., moved for summary judgment, seeking forfeiture of the deposit.

The court ruled that s. 21(4) prevents personal liability for contractual obligations but does not prevent the forfeiture of a deposit, which serves as an earnest to secure performance.

The court granted the vendor's motion, ordering the deposit released to the vendor, and dismissed Benedetto's claim for its return.

The applicant condominium corporation sought a permanent injunction and a contempt order against the respondents for persistent harassment, abuse, and threatening conduct towards its personnel and other unit owners, in breach of three prior interim court orders.

The court dismissed the respondent's request for a third adjournment based on unsubstantiated medical claims and proceeded without responding evidence due to the respondent's failure to pay outstanding costs.

The court granted the permanent injunction, found the individual respondent in contempt, and ordered the respondents to sell their unit and vacate all premises within the commercial condominium, citing the severe and persistent nature of the misconduct.

This decision addresses a scheduling dispute in a proposed class action concerning the Bell Canada Pension Plan.

The defendants sought to have their motion to stay the class action, arguing that the Office of the Superintendent of Financial Institutions (OSFI) was the preferable forum, heard before the certification motion.

The plaintiff opposed this, requesting both motions be heard concurrently.

The court, applying the Cannon factors and principles against litigation by installments, denied the defendants' request, directing that the stay motion be heard together with the certification motion, emphasizing that the preferability of jurisdiction is an issue best determined within the certification context.

The defendant solicitor brought a motion to dismiss the plaintiff's solicitor negligence action for delay under Rule 24.01.

The underlying action related to a motor vehicle accident claim that was previously dismissed.

The court found the plaintiff's delay of nearly nine years to be inordinate and inexcusable, noting significant periods of inactivity and failure to answer undertakings.

The court also found actual prejudice to the defendant due to the loss of critical evidence, including the destruction of the underlying defence file, the death of a key medical expert, and the inability to locate the plaintiff's purported employer.

The motion was granted and the action was dismissed.

The plaintiff, representing a class of non-golfing and non-member shareholders of a golf and country club, brought a motion for summary judgment alleging that the club's board of directors engaged in oppressive conduct by selling treasury shares at reduced prices to attract new members.

The plaintiff argued this diluted shareholder equity and violated their reasonable expectations.

The Superior Court of Justice dismissed the class action, finding that the board's decision was a reasonable exercise of business judgment aimed at ensuring the club's financial viability.

The court held that the shareholders did not have a reasonable expectation that shares would only be sold at a specific minimum price, and the board fairly considered the interests of all stakeholders.

The proposed representative plaintiffs in a class action arising from a cyberattack brought a motion for the production of third-party cybersecurity reports (the Mandiant Reports) prior to cross-examining the defendants' affiant on a certification motion.

The defendants opposed production, claiming privilege.

The court held that by relying on the investigation's findings regarding the size and scope of the class in their affidavit, the defendants waived privilege over those specific aspects of the reports.

Applying principles of waiver, relevance, and proportionality, the court ordered the defendants to produce only the excerpts of the reports relating to the size and scope of the class.

The respondent physician brought a motion to dismiss the appellant patient's appeal of a Consent and Capacity Board decision on the basis of mootness and delay.

The Board had upheld a finding that the appellant was incapable of consenting to or refusing treatment with antipsychotic medication.

The appellant had since been discharged but was later readmitted and found incapable by a different physician.

The court dismissed the motion, finding the appeal was not moot because a successful appeal would establish a prior capable wish that could protect the appellant from unwanted treatment.

The court also found no inordinate or inexcusable delay.

The appellant father appealed a final custody and access order to the Divisional Court.

The panel raised the issue of jurisdiction, noting that the order was made in a proceeding where both parties sought a divorce.

Under section 27 of the Children's Law Reform Act, claims for custody and access are stayed in favour of the Divorce Act when a divorce is claimed.

Because the order was made under the Divorce Act, the appeal route lies to the Court of Appeal under section 6(1)(b) of the Courts of Justice Act, not the Divisional Court.

The Divisional Court found the father had a meritorious appeal regarding the termination of his access and transferred the appeal to the Court of Appeal pursuant to section 110(1) of the Courts of Justice Act.

The appellant children's aid society appealed a temporary order placing a newborn child in the care of the respondent parents subject to supervision terms.

The society argued the application judge erred by imposing terms irreconcilable with his findings regarding the mother's mental health and the father's prior criminal conviction.

The Divisional Court dismissed the appeal, finding the application judge correctly applied the test under section 51(2) of the Child and Family Services Act and made no palpable and overriding error.

The Court also dismissed the society's motion to introduce fresh evidence regarding the paternal grandfather's criminal record, applying a relaxed test but finding the evidence would not have affected the result.

The appellant sought judicial review of his removal and arrest from a city bus station for distributing pamphlets, seeking declaratory relief and an order quashing the trespass decision.

The Divisional Court held it lacked jurisdiction to grant declaratory relief because the Trespass to Property Act does not confer a statutory power of decision.

The court further found the application to quash was moot and declined to exercise its discretion to hear it.

The matter was transferred to the Superior Court of Justice to be heard as a Charter application.

The appellant teacher appealed a finding of professional misconduct and the resulting penalty imposed by the Discipline Committee of the Ontario College of Teachers.

The misconduct arose from the appellant's aggressive and intimidating behaviour towards public health nurses and students during a school immunization clinic, where he expressed opposition to vaccines.

The Divisional Court dismissed the appeal, finding that the Discipline Committee's findings of misconduct and the imposed penalty, which included a one-month suspension and a two-year prohibition from attending school health clinics, were reasonable and supported by the evidence.