Benjamin T. Glustein

The wife and her boyfriend brought a motion to remove the husband's lawyer due to an alleged conflict of interest.

The boyfriend had a brief consultation with the lawyer for his own matrimonial matter, and the husband's answer in the current litigation alleged an affair between the wife and boyfriend and extravagant spending.

The moving parties claimed the lawyer breached duties of confidence, loyalty, and candour, and faced a potential conflict in cross-examining the boyfriend as a witness.

The court dismissed the motion, finding no confidential information was disclosed, the relationship between the wife and boyfriend was not confidential, and the two matrimonial litigations were not sufficiently related to create a presumption of conflict.

The court also found no breach of a limited duty of loyalty or candour, and no impediment to cross-examination.

The applicant mother (L.L.) and respondent father (M.C.) each brought separate motions to vary final orders concerning custody, access, and child support for their son, J. M.C. sought equal access, while L.L. sought to restrict M.C.'s consultation rights regarding J's well-being, clarify holiday schedules, recalculate child support, and dispense with M.C.'s consent for travel.

The court applied the material change test from *Gordon v. Goertz* and *Brown v. Lloyd*.

It found that neither party demonstrated a material change in circumstances that fundamentally altered J's needs or the parents' ability to meet them, nor were the issues unforeseen or not reasonably contemplated by the original judge.

The court dismissed both motions, noting that the parties' communication issues and J's academic struggles/ADHD diagnosis were not fundamental changes warranting a variation.

The applicant sought costs related to parenting issues after a settlement was reached on both parenting and financial matters at the outset of trial.

The court found that success on parenting issues was divided and that the respondent, a self-represented litigant, had acted reasonably in negotiations, securing more favourable terms than the applicant's offer.

The court declined to award costs, emphasizing the importance of encouraging settlement and not "pre-judging" the outcome of issues resolved through negotiation.

The plaintiff brought an action against her former employer for constructive dismissal, bad faith termination, intentional infliction of mental suffering, and inducing breach of contract.

She alleged she was constructively dismissed due to increased hours and a poisoned work environment.

She also claimed the employer acted in bad faith and intentionally inflicted mental suffering by investigating her for post-employment sabotage of its billing system and reporting her to the police.

Finally, she alleged the employer induced a breach of a consulting contract she had with a third party.

The court dismissed the action in its entirety, finding the plaintiff resigned due to dissatisfaction with management, condoned any changes to her working conditions, and that the employer conducted its investigation in good faith.

The court also found no valid contract existed to support the inducing breach claim.

The plaintiff brought a motion for summary judgment seeking the return of a $70,210 USD deposit paid to the defendant for a 2014 Masters golf tournament package.

The package included a guaranteed 'Golf Day' at Augusta National, which the defendant failed to provide.

The parties amended the agreement to move the trip to 2015, but the defendant again failed to secure the Golf Day and eventually offered unacceptable alternatives.

The court found no genuine issue requiring a trial, holding that the Golf Day at Augusta National was a fundamental term, the amendments were valid, and the defendant's conduct constituted an anticipatory repudiation.

Summary judgment was granted, ordering the return of the deposit and awarding costs to the plaintiff.

The moving party sought summary judgment recognizing and enforcing a United States District Court judgment from Indiana exceeding US$46 million.

The responding parties argued the judgment was not final because an appeal was pending and alleged a denial of natural justice based on the alleged mental incompetence of one defendant during the foreign trial.

The court held that a foreign judgment is final for enforcement purposes when the foreign court has no power to vary or rescind it, even if an appeal is pending and no stay of enforcement exists.

The court further held that the enforcing court’s role is limited to assessing procedural fairness rather than re‑litigating substantive issues such as competence at trial.

The Indiana judgment was recognized and enforced in Ontario, subject to an interim stay of enforcement pending developments in the foreign appeal.

Following a ten‑day motor vehicle accident trial in which the plaintiffs’ damages claims were dismissed, the defendant sought substantial indemnity costs exceeding $250,000.

The defendant relied primarily on prior settlement offers to justify the elevated costs scale.

The court held that substantial indemnity costs were not warranted because there was no reprehensible conduct and the parties’ settlement positions were reasonable given the contested medical causation and income loss issues.

Exercising discretion under Rule 57.01 of the Rules of Civil Procedure, the court fixed partial indemnity costs at $170,000 inclusive of HST and disbursements.

Following the dismissal of motions seeking an interlocutory voting injunction, an imaging order, and a contempt order, the court determined the appropriate costs award.

The unsuccessful moving party argued that most costs should be deferred to trial because the evidence overlapped with issues to be litigated on the merits.

The court rejected this submission, applying the principle that a successful defendant resisting interlocutory injunctive relief is generally entitled to costs payable forthwith.

After considering factors under Rule 57.01 of the Rules of Civil Procedure, including the high stakes of the motions, the absence of legal complexity, and certain conduct contributing to the contempt motion, the court fixed reduced partial indemnity costs for each successful defendant.

The media applicants brought an application for a declaration that the police practice of impersonating journalists for criminal investigation and surveillance of public protests violates s. 2(b) of the Charter.

The court found no evidence that plainclothes officers engaging in surveillance held themselves out as journalists.

The court held that the evidentiary record did not support a finding that the practice of plainclothes surveillance in the presence of media had a chilling effect on news gathering.

The application was dismissed.

The moving party sought three forms of relief in a commercial dispute involving alleged misuse of confidential information: an interlocutory injunction preventing a shareholder from voting its 35% interest in a telecommunications company, an order authorizing forensic imaging and review of the defendants’ corporate servers and devices, and a finding of contempt for alleged breach of a prior consent order.

The court held that the requested voting injunction could not be granted because the moving party failed to provide the mandatory undertaking as to damages under Rule 40.03 of the Rules of Civil Procedure and failed to demonstrate irreparable harm or a favourable balance of convenience.

The requested imaging order was refused because there was no evidence that the responding party had failed to comply with its document production obligations or attempted to conceal or destroy electronic evidence.

The contempt motion also failed because the alleged acts—deleting personal browsing history and installing software capable of secure deletion—did not establish beyond a reasonable doubt that relevant information had been intentionally destroyed in breach of the consent order.

The plaintiff brought an undefended action against her former employer and its manager for wrongful dismissal, sexual assault, battery, and harassment.

The manager repeatedly sexually assaulted and harassed the plaintiff, who was a vulnerable single mother.

Following the assaults, the plaintiff was terminated without cause in a harsh and vindictive manner.

The court found the manager liable for battery, breach of fiduciary duty, and human rights violations, and held the corporate employer vicariously liable.

The court awarded substantial general, aggravated, and punitive damages, as well as damages for wrongful dismissal and a Family Law Act claim for the plaintiff's daughter.

The plaintiff sought damages for personal injuries arising from a motor vehicle accident where liability was admitted.

The plaintiff claimed damages for pain and suffering, past income loss, and future income loss, alleging the accident caused chronic neck, back, and shoulder pain, as well as carpal tunnel syndrome.

The court found that the carpal tunnel syndrome was not caused by the accident.

Furthermore, the court held that the plaintiff's injuries did not meet the statutory threshold for non-pecuniary damages, as the impairments were neither permanent nor serious, relying heavily on medical evidence of reversible muscular imbalance and extensive video surveillance showing the plaintiff engaging in vigorous physical activities.

The claims for past and future income loss were also dismissed, as the plaintiff's decision to leave work was deemed unreasonable and the contingencies for future loss were not established as real and substantial possibilities.

The action was dismissed.

The appellant appealed a Consent and Capacity Board decision confirming that he was incapable of consenting to antipsychotic treatment under the Health Care Consent Act, 1996.

The court held that the Board applied the correct legal test from Starson, focusing not on acceptance of a specific diagnosis but on whether the appellant could recognize the manifestations of his mental condition and apply treatment information to his own circumstances.

The court rejected arguments concerning alleged undue influence by the Ontario Review Board, the inclusion of injectable antipsychotic medication, and the sufficiency of the Board's reasons.

Applying a deferential reasonableness standard to the Board's factual and mixed findings, the appeal was dismissed.

The applicants, former franchisees of a Baton Rouge restaurant, brought an application seeking declarations that a non-competition clause in their franchise agreement was void and unenforceable as an unreasonable restraint of trade or for ambiguity.

They also sought a declaration that their proposed new restaurant menu did not violate the clause, and claimed damages for breach of the duty of fair dealing under the Arthur Wishart Act.

The court dismissed the application, finding the 5-year, 10-kilometre restrictive covenant to be reasonable and unambiguous given its narrow scope, which only prohibited selling products using the franchisor's recipes.

The court declined to rule on the proposed menu without evidence of the actual recipes and found no evidence of bad faith by the franchisor.

At a status hearing requiring the plaintiff to show cause why a long-delayed civil action should continue, the court applied the conjunctive test requiring an acceptable explanation for delay and absence of non‑compensable prejudice to the defendants.

The action had experienced approximately ten years of unexplained inactivity between the issuance of the claim and the service of the trial record.

The plaintiff relied on evidence of alcoholism, incarceration, family illness, and lack of funds to explain the delay.

The court held these explanations were unsupported or logically insufficient, particularly where the plaintiff had demonstrated an ability to instruct counsel at other times during the same period.

Having failed to establish an acceptable explanation for the delay, the action was dismissed without considering the prejudice branch of the test.

The plaintiffs brought a motion under Rule 48.11 to restore their personal injury action to the trial list after it was struck due to litigation delay.

The court applied the conjunctive test from Nissar, finding that despite significant periods of inactivity and dilatory conduct by plaintiffs' counsel, there was an acceptable explanation for the delay overall.

The court also found the defendant would suffer no non-compensable prejudice.

The motion was granted, but costs were awarded to the defendant due to the plaintiffs' repeated failures to meet deadlines.

Defendants moved for a declaration that service ex juris of a statement of claim in Barbados was invalid.

The plaintiffs had personally travelled from Ontario to Barbados and hand-delivered the claim to the foreign defendants.

The court held that Rule 17.05(3)(b) of the Rules of Civil Procedure requires service in a contracting state to comply with the Hague Service Convention.

Article 10(c) of the Convention requires a document to be transmitted through judicial officers, officials, or other competent persons of the destination state and does not permit a litigant to personally travel abroad and effect service.

The purported service was therefore invalid, the noting in default was set aside, and the plaintiffs’ cross‑motion validating service was dismissed.

The defendant brought a motion under s. 103(6) of the Courts of Justice Act and Rule 42.02 of the Rules of Civil Procedure seeking to discharge a certificate of pending litigation (CPL) obtained by the plaintiff on an ex parte basis.

The defendant argued the plaintiff failed to make full and fair disclosure of material facts, particularly information arising from pleadings, testimony, and evidence in a related action involving the same parties and a real estate transaction.

The court held that the alleged omissions were not material to the decision to grant the CPL and that the plaintiff had adequately disclosed the defendants’ position regarding the alleged repayment of a $600,000 deposit.

Evidence from the related litigation and a text message referencing repayment did not contradict the plaintiff’s disclosure that the defendants claimed repayment while the plaintiff did not know whether the claim was true.

The court concluded the plaintiff had met the obligation of full and fair disclosure required for ex parte CPL motions.

The plaintiff brought a motion under Rule 31.03(2)(a) to compel the defendant hospital to produce an independent contractor physician as its representative for examination for discovery.

The plaintiff argued the physician was the primary actor in his constructive dismissal claim.

The court dismissed the motion, finding that while the definition of 'officer, director, or employee' can be expanded in limited circumstances, the hospital's proposed representative (the Director of Medical Affairs) had sufficient knowledge of the internal matters at issue, including the hospital's response to complaints, workplace investigations, and a Ministry audit.

The defendants moved to set aside a registrar’s default judgment and the noting in default.

The motion focused on whether the registrar improperly granted judgment for claims that were not liquidated demands under Rule 19.04(1)(a) of the Rules of Civil Procedure.

The court held that claims for loss of chattels, demolition costs, and future rent damages required evidence outside the contract and therefore were not liquidated demands.

Because the registrar may only grant default judgment for liquidated claims, the judgment was irregular and a nullity.

The court set aside both the default judgment and the noting in default without imposing terms, except requiring the defendants to deliver a statement of defence within 30 days.