Benjamin Glustein

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.

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, 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 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 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 to amend the statement of claim to add the proposed U-Haul defendants and substitute them for the defendant 'John Doe' as the owner of the motor vehicle involved in an accident, after the expiry of the limitation period.

The court found that the plaintiff failed to meet the evidentiary threshold for discoverability under Wakelin, as no evidence was led to explain why the identity of the defendants could not have been obtained with due diligence.

However, the court granted the motion based on the doctrine of misnomer under Lloyd, finding a coincidence between the plaintiff's intention to name the vehicle owner and the U-Haul defendants' knowledge that they were the intended defendants.

The court declined to exercise its discretion to refuse the correction.

The plaintiffs brought a motion to amend their statement of claim to add two proposed corporate defendants more than two years after the alleged fraud.

The responding parties opposed the motion, arguing the claims were statute-barred.

The court dismissed the motion, finding no genuine issue of discoverability and holding that the doctrine of misnomer does not apply when a plaintiff seeks to add new parties as co-defendants alongside the originally named defendant, rather than correcting a mistakenly named party.