Benjamin T. Glustein

The defendant brought a motion to remove the plaintiff’s lawyer of record on the basis of an alleged conflict of interest.

The defendant had previously consulted another lawyer who worked in association with the plaintiff’s lawyer at the same office group regarding the same employment dispute.

The court applied the principles from MacDonald Estate v. Martin concerning removal of counsel and protection of confidential information.

It held that the presumption that lawyers share confidential information applies within law firms but does not automatically apply to lawyers who merely work in association with separate practices.

Because the lawyers had separate practices and there was no evidence that confidential information had been shared with the lawyer of record, the motion to remove counsel was dismissed.

The defendant brought a motion to remove the plaintiff's lawyer of record, who was also the plaintiff's sister.

The underlying action involved allegations of professional negligence and breach of fiduciary duty against the defendant lawyer regarding a franchise purchase.

The defendant argued that the plaintiff's lawyer was present at a critical meeting where the documents were executed and independent legal advice was allegedly waived, making her a necessary witness.

Applying the Essa factors, the court found a strong likelihood that the lawyer would be called as a witness on highly contentious credibility issues.

The motion was granted and the lawyer was removed from the record.

The court determined costs following the dismissal of a motion seeking to add additional defendants under Rules 5.04 and 26.01 of the Rules of Civil Procedure.

Proposed defendants sought recovery of their legal costs incurred responding to the unsuccessful motion.

The court assessed the reasonable costs expected for a half‑day motion involving complex issues of privity of contract but reduced the amounts claimed due to unnecessary costs arising from arguments raised or abandoned during earlier proceedings.

The court also considered the absence of responding evidence and the reasonableness of counsel’s hourly rates.

Costs were awarded to the proposed defendants in reduced amounts.

In a franchise class action, the plaintiffs challenged the defendants' claims of solicitor-client privilege over certain documents and discovery refusals.

The court established seven general principles to govern the privilege claims, holding that requests for general legal information to understand rights are privileged, and that a lawyer's file compiled using professional skill is protected by work product privilege.

The court further held that pleading good faith in response to a bad faith claim does not impliedly waive privilege unless the party relies on legal advice as a material element of its defence.

The court outlined a process for the parties to apply these principles to the disputed documents and refusals ahead of a continued hearing.

The plaintiff moved to amend its statement of claim to add several limited partners of a limited partnership as defendants in an action concerning repayment obligations connected to a promissory note and related agreements.

The proposed amendment alleged that the limited partners were liable through assumption agreements tied to the limited partnership’s debt obligations.

The court considered whether the plaintiff had a tenable cause of action based on privity of contract or under Rule 8 of the Rules of Civil Procedure permitting claims against limited partners.

The court held that the plaintiff lacked privity of contract with the limited partners and that Rule 8 is procedural and does not create substantive liability for limited partners.

As the proposed claims were clearly impossible of success, the motion to amend was dismissed.

The plaintiff brought a motion under Rule 39.02(2) of the Rules of Civil Procedure seeking leave to examine opposing litigation counsel under Rule 39.03 in connection with a forthcoming motion for particulars.

The motion arose after cross‑examination revealed that the affiant, a lawyer at the plaintiff’s firm, lacked personal knowledge of key factual assertions in her affidavit and had relied on information prepared by counsel.

Applying the factors articulated in First Capital Realty Inc. v. Centrecorp Management Services Ltd., the court held the proposed examination was relevant, arose from matters uncovered during cross‑examination, would not cause non‑compensable prejudice, and could not reasonably have been sought earlier.

The court further held that proportionality and a contextual approach supported allowing the examination where the relevant information was uniquely within counsel’s knowledge.

Leave to examine the lawyer was therefore granted, with costs reserved.

The plaintiff, Bank of Montreal, brought a motion under Rule 37.14 to set aside a registrar's dismissal order.

The action, which involved allegations of a complex mortgage fraud, had been dismissed for delay after the plaintiff missed a court-ordered deadline to set the action down for trial.

Applying the Reid factors contextually, the Master found that the plaintiff had adequately explained the delay, demonstrated inadvertence in missing the deadline, moved promptly to set aside the order, and rebutted the presumption of prejudice.

The motion was granted and the dismissal order was set aside without costs.

The plaintiff bank brought a motion for summary judgment to recover outstanding debts arising from credit facilities and credit card obligations guaranteed by several corporate and personal guarantors.

The defendants argued that the reasonableness of the bank’s legal fees, the discharge of a third mortgage security, and other accounting issues created genuine issues requiring trial.

The court held that the only unresolved issue concerned the reasonableness of legal fees, which would be determined through an assessment under the Solicitors Act.

Excluding those disputed legal fees, the court found no genuine issue requiring trial regarding the remaining indebtedness and rejected the defence that discharge of a mortgage extinguished the underlying debt.

Summary judgment was granted for the minimum outstanding principal, the counterclaim was dismissed, and the remaining legal fees were ordered to be determined by assessment.

In a class proceeding concerning post‑retirement benefits, the defendant brought a motion to strike certain financial statements from affidavit evidence.

The issue was whether the employer’s 1994 and 1995 financial statements qualified as “additional common documents” because they were widely distributed to class members and respected post‑retirement benefits.

The court held that the statements were widely distributed because annual reports were regularly provided or made available to employees.

The court also interpreted the term “respecting” broadly, finding that financial statements referring to post‑retirement benefit liabilities satisfied the requirement.

The motion to strike the documents was dismissed.

The plaintiffs brought a motion seeking to exclude an individual from attending the continued examination for discovery of a corporate representative.

The plaintiffs argued that a corporation could not have another representative present when the adverse party had selected a specific individual for discovery, and that the individual’s presence risked influencing the witness’s evidence.

The court held that a corporation, as a separate legal entity, is entitled to have a representative present at discoveries to assist with litigation decision‑making even if that person is not the discovery witness.

The evidence relied on by the plaintiffs did not demonstrate any risk of tampering with the discovery evidence.

The motion to exclude the individual from the continued examination for discovery was therefore dismissed.

The plaintiff in a class action regarding post-retirement benefits brought a motion for the production of historical benefits plan documents, including corporate minutes and resolutions concerning the creation of the benefits plans.

The defendant brought a cross-motion to strike certain documents from the plaintiff's affidavit.

The court interpreted the Settlement Agreement between the parties and found that the requested corporate minutes and resolutions fell within the definition of 'historical benefits plan documents' as they were relevant to the objective determination of the contractual terms.

The court ordered the defendant to produce the documents and dismissed the motion to strike.

The moving defendants sought partial summary judgment dismissing the landlord’s claim for prospective rent damages following an alleged repudiation of a commercial lease.

The motion raised legal questions concerning the fourth remedy identified in Highway Properties Ltd. v. Kelly, Douglas and Co., including whether notice of a claim for prospective damages must be provided and whether the issuance of a statement of claim can satisfy that notice requirement.

The court found that the law on these issues was unclear and therefore constituted a genuine issue of law.

Pursuant to Rule 20.04(4) of the Rules of Civil Procedure, a master must adjourn such motions to a judge where the issue may be determined on summary judgment.

The motion was therefore adjourned to a judge, with limited costs awarded to the responding party for the adjournment issue.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s dismissal of the action for delay under Rule 48.14.

Applying the contextual approach and the Reid factors articulated in appellate jurisprudence, the court considered the adequacy of the explanation for litigation delay, inadvertence in missing the set‑down deadline, promptness in bringing the motion, and prejudice to the defendant.

The court found the delay adequately explained, the failure to meet the deadline resulted from inadvertence, and the motion was brought promptly once counsel became aware of the dismissal.

Although a presumption of prejudice arose due to the limitation period, the plaintiff rebutted the presumption and the defendant failed to establish actual prejudice.

The dismissal order was set aside, with limited thrown‑away costs payable by the plaintiff.

The plaintiff brought a motion under Rule 48.04(1) of the Rules of Civil Procedure seeking to vacate a trial record and obtain leave to continue a discovery-related production motion after the action had been set down for trial.

The plaintiff acknowledged that counsel had inadvertently set the action down for trial in response to a status notice without considering the consequences of Rule 48.04(1).

The court held that discovery motions are routine interlocutory matters that do not affect substantive rights and therefore require a substantial or unexpected change in circumstances before leave may be granted.

As no such change in circumstances existed, the court declined to vacate the trial record or permit the continuation of discovery.

The motion was dismissed and costs were awarded to the defendants.

The defendants sought security for costs against non-resident plaintiffs in two related civil fraud actions involving failed investment schemes.

Following an appeal, the matter was remitted to reconsider whether the plaintiffs had a “good chance of success” on the merits, which could weigh against ordering security for costs.

The court reviewed extensive evidentiary allegations concerning the role of a law firm and its partner in facilitating investment transfers connected to the alleged fraud.

The court held that while the record raised genuine issues for trial, the plaintiffs failed to demonstrate a “good chance of success,” particularly regarding whether the defendants owed a duty of care to non-client investors or participated in the alleged fraud.

Security for costs was therefore ordered on the same terms previously imposed.

The plaintiff, Apotex Inc., was required to show cause at a status hearing why its action against the defendant should not be dismissed for delay under Rule 48.14(3).

The defendant argued that the plaintiff failed to meet the two-part test from Khan, requiring an acceptable explanation for the delay and proof of no non-compensable prejudice.

The Master applied a contextual approach, finding that ongoing settlement discussions provided a reasonable explanation for the delay.

Although the plaintiff did not fully prove an absence of prejudice, the Master concluded that fairness and the preference for deciding cases on their merits outweighed the delay, allowing the action to continue.

The plaintiff brought a motion to set aside a second registrar's dismissal order for delay.

The court applied the Reid factors and the Scaini contextual approach.

The court found that the plaintiff failed to adequately explain the litigation delay, which spanned almost three years, and failed to lead evidence to rebut the presumption of prejudice to the defendant given the expiry of the limitation period.

Although there was some evidence of inadvertence in missing the deadline, the motion was dismissed.

The plaintiff brought a motion under Rule 26.01 of the Rules of Civil Procedure to amend a statement of claim in a wrongful dismissal action to add claims for bad faith and punitive damages.

The proposed amendments alleged that the employer failed to investigate alleged misconduct and terminated the employee for refusing to participate in conduct contrary to the employer’s code of conduct.

The court held that reasons for dismissal are generally irrelevant to damages in wrongful dismissal and that the pleadings did not disclose actual damages arising from the manner of dismissal as required for Wallace damages.

The proposed allegations also failed to establish an independent actionable wrong necessary to sustain a punitive damages claim.

Leave to amend was therefore refused.

The court determined the costs consequences following multiple contested discovery and procedural motions in a commercial dispute.

The defendants sought costs after successfully opposing aspects of the plaintiff’s motion to vary a discovery timetable and after succeeding on their own motion requiring the plaintiff to amend pleadings, deliver a proper affidavit of documents, and answer undertakings.

The court found the defendants substantially successful and ordered the plaintiff to pay costs.

Although the defendants requested substantial indemnity costs based on alleged misconduct, the court held that the plaintiff’s positions were not egregious and awarded costs only on a partial indemnity scale.

Costs were fixed at $15,000 for one group of defendants and $20,000 for another, inclusive of taxes and disbursements.

The defendant moved for security for costs under Rule 56.01(1)(c) of the Rules of Civil Procedure on the basis that a prior costs order contained in a consent judgment remained partially unpaid.

The court held that even where the technical requirements of the rule are met, the court retains discretion to refuse security for costs after considering all relevant circumstances, including the merits of the claim.

The court clarified that the role of the merits under Rule 56.01(1)(c) falls on a continuum between the standards applicable under Rule 56.01(1)(a) and Rule 56.01(1)(e).

On the evidence, the plaintiffs demonstrated a good likelihood of success in their action to set aside a consent judgment based on alleged undisclosed liabilities in a share purchase transaction.

In light of the strength of the plaintiffs’ case and the absence of responding evidence from the defendant, ordering security for costs would be unjust.