Court File and Parties

CITATION: Skrobacky v. Frymer, 2014 ONSC 4544

DIVISIONAL COURT FILE NO.: 119/14

DATE: 20140801

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N :

RACHEL SKROBACKY by her litigation guardians Madelon Niman and Suzan Zarnett, MADELON NIMAN and SUZAN ZARNETT personally in their capacities as Trustees of the Skrobacky Family Trust 2 and MADELON NIMAN and SUZAN ZARNETT in their capacities as Trustees of the Skrobacky Family Trust 2, for and on behalf of Es-Lea Holdings Limited, Es-Lea Investments Limited and K.R.S. Construction Limited, and Rachel Skrobacky, by their litigation guardians Madelon Niman and Suzan Zarnett, for and on behalf of 2127890 ONTARIO LIMITED

Plaintiffs

– and –

JACK FRYMER, SAMUEL STERN (also known as SAM STERN), JANICE STERN, CAROL FRYMER, GARFIN ZEIDENBERG LLP, STEINBERG MORTON HOPE & ISRAEL LLP, STACY MITCHELL, THE CANADA TRUST COMPANY in its capacity as Estate Trustee During Litigation of the Estate of Abraham Skrobacky, ES-LEA HOLDINGS LIMITED, ES-LEA INVESTMENTS LIMITED, K.R.S. CONSTRUCTION LIMITED, CAMWOOD CONSTRUCTION LIMITED, CAMWOOD INVESTMENTS LIMITED, QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENS INC., JANFAR HOLDINGS LIMITED, S. STERN FINANCIAL CORPORATION, JAN-SAM HOLDINGS LTD., JORDALE MANAGEMENT INC., 1253174 ONTARIO LTD., MAX STERN INVESTMENTS LIMITED, BAYCREST CENTRE FOR GERIATRIC CARE, ISRAEL SOLDIERS FUND, JEWISH NATIONAL FUND OF CANADA, BETH DAVID SYNAGOGUE OF TORONTO, ZAREINU EDUCATIONAL CENTRE, ADAM NIMAN, DALE NIMAN, JEREMY NIMAN, DARA ZARNETT, DAVID ZARNETT, FRANCIS CUTLER (also known as FRANCES CUTLER HAHN), and MERCEDES STEWART

Defendants

AND BETWEEN:

QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENTS INC., MAX STERN INVESTMENTS LIMITED and JANFAR HOLDINGS LIMITED

Plaintiffs by Counterclaim

– and –

RACHEL SKROBACKY, by her litigation guardians Madelon Niman and Suzan Zarnett, MADELON NIMAN and SUZAN ZARNETT personally and in their capacities as Trustees of the Skrobacky Family Trust 2, and 2127890 ONTARIO LIMITED

Defendants by Counterclaim

AND BETWEEN:

JACK FRYMER, SAMUEL STERN (also known as SAM STERN), JANICE STERN, S. STERN FINANCIAL CORPORATION, JAN-SAM HOLDINGS LTD., JORDALE MANAGEMENT INC., CAROL FRYMER, 1253174 ONTARIO LTD., QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENTS INC., MAX STERN INVESTMENTS LIMITED and JANFAR HOLDINGS LIMITED

Plaintiffs by Crossclaim

and

THE CANADA TRUST COMPANY in its capacity as Estate Trustee During Litigation of the Estate of Abraham Skrobacky, ES-LEA HOLDINGS LIMITED, ES-LEA INVESTMENTS LIMITED and K.R.S. CONSTRUCTION LIMITED

Defendants by Crossclaim

Counsel:

David Chernos, for the Plaintiffs

Irving Marks and Dominique Michaud, for the Defendants

HEARD: May 29, 2014

Reasons for Judgment

THEN J.:

[1] The moving party applies for leave to appeal on both branches of rule 62.02(4) on the basis that:

(a) There are conflicting decisions and it is desirable that leave be granted; and (b) there is good reason to doubt the correctness of the order and the matter is of such importance that leave should be granted.

background

[2] Justice Greer granted leave under rule 26.01 to the plaintiffs to amend their statement of claim to include an additional claim against the defendant Stacy Mitchell (“Mitchell”). The new claim alleged that Mitchell, an accountant, knowingly assisted in depleting various assets of Es-Lea Holdings Limited (“Es-Lea”).

[3] On the motion, Mitchell argued that the claims were statute-barred by the Limitations Act, 2002, S.O. 2002, c. 24. He argued that the plaintiffs in the action (the “respondents”) ought to have become aware of the claims after: (1) the 2010 production of records belonging to the various defendants; and (2) they received the statements of defence of the “Frymer defendants” and the “Stern defendants”. Mitchell claimed that these documents provided sufficient information that the respondents ought to have discovered the claim they proposed to add. The respondents submitted that despite these materials, they did not discover the claims against Mitchell until the examination for discovery of Samuel Stern (“Stern”) and other defendants. They also claimed that the defendants had not put forward any argument or evidence that explained how the documentary production should have led the plaintiffs to conclude that Mitchell was one of the architects of the impugned conduct.

[4] Justice Greer granted leave to amend, noting the mandatory wording of rule 26.01 and the fact that the amendments would not cause any prejudice to the defendants that could not be compensated by costs.

[5] Greer J. cited Austin v. Overs Estate, 2010 ONSC 7194, in which Newbould J. stated that a factual dispute over the discoverability of sufficient information is a question of fact that should be left for determination by the trial judge. Justice Greer then pointed to the parties’ contrary positions regarding the discoverability of the proposed new claim, and held that the issue of discoverability and limitations would be left to the trial judge.

[6] For the reasons that follow the application is dismissed.

rulE 62.02(4)(a)

Issue

1. Are there decisions which conflict with Justice Greer’s order?

analysis

Position of the Parties

[7] The moving party submits that the jurisprudence provides that a plaintiff on a rule 26.01 motion is required to adduce some evidence and provide a cogent explanation as to why new claims were not discoverable with reasonable diligence prior to the examination for discovery. In this regard, the moving party submits that there are decisions conflicting with Greer J.’s order. It further submits that there is good reason to doubt the correctness of Justice Greer’s order because she failed to appreciate that satisfaction of the “evidence of reasonable diligence requirement” is a condition precedent where a party relies on the doctrine of discoverability when seeking leave to amend a pleading after the expiry of the limitation period.

[8] The respondents submit that the moving party relies on cases dealing with motions to add a new party or parties pursuant to rule 5.04(2). They submit that rule 5.04(2) is discretionary, whereas rule 26.01 is mandatory (absent prejudice that cannot be compensated by costs). The respondents submit that because Mitchell was an existing party in the action, the proposed amendments only add a new claim against an existing party, and therefore the case law under rule 5.04(2) is inapplicable. They submit that Greer J. was not required to apply the evidentiary test applying to a rule 5.04 motion. Instead, Greer J. correctly applied the rationale from rule 26.01 case law to conclude that because there was a dispute over whether the new claim was time-barred, the amendments must be allowed and the resolution of the limitations and discoverability issues be left with the trial judge.

[9] My general conclusion is that the case law cited by the moving party involves motions to add parties pursuant to rule 5.04. The language under that rule is discretionary, whereas the language of rule 26.01 is mandatory. Under both rules, however, leave to amend is not absolute. A court may refuse to amend pleadings where the defendant demonstrates prejudice that cannot be compensated by costs, or where the proposed claim is untenable at law. Prejudice is presumed where the claim is brought beyond the expiry of the limitation period. However, where there is an issue of fact or credibility relating to the discoverability of the proposed claim, the matter will usually be left to the trial judge to determine. Although the amount of evidence that the plaintiff is required to adduce on a rule 26.01 motion is uncertain, in my view, Justice Greer’s determination that there was a factual dispute at issue is supported by the record that was before her.

The cases relied upon by the moving party all involve motions to add a party pursuant to rule 5.04 rather than rule 26.06

[10] In support of its position, the moving party relies on Higgins v. Barrie (City), 2011 ONSC 2233, Parsons v. Deutcher Estate, [2008] O.J. No. 3014 (Div. Ct.), Hughes v. Kennedy Automation Ltd., 2008 ONCA 770 and Trench v. Parmat Investments Ltd. (c.o.b. Meadowvale Bingo), 2010 ONSC 1564. These cases all deal with motions to add parties pursuant to rule 5.04.

[11] In Higgins, the plaintiff brought a motion to add a party under rule 26.01, however DiTomaso J. recognized that rule 5.04 was the more specific rule that applied. Similarly, Parsons involved an appeal from a decision of a Master denying the plaintiff’s request to add a defendant after the expiry of the limitation period.[^1] Hughes and Trench also involved motions to add a party.

[12] These cases do state that on motions to add a party under rule 5.04, the Limitations Act imposes a burden on the plaintiff to demonstrate with evidence why the identity of the party and the claim against it could not have been discovered with due diligence prior to the expiry of the limitation period.[^2] In Wakelin v. Gourley (2006), 76 O.R. (3d) 272 (S.C.), Master Dash stated that the amount of evidence required is “not very much”, and will usually involve a list of the steps taken to ascertain the identity of the tortfeasor and a reasonable explanation as to why such information was not obtainable with due diligence.[^3]

[13] Given that the moving party’s cases involve rule 5.04 motions, I do not think they can fairly be described as conflicting, particularly in light of the court’s comments in Comtrade Petroleum Inc. v. 490300 Ontario Inc. (1992), 7 O.R. (3d) 542 (Div. Ct.):

An exercise of discretion which has led to a different result because of different circumstances does not meet the requirement for a “conflicting decision”. It is necessary to demonstrate a difference in the principles chosen as a guide to the exercise of such a discretion.[^4]

[14] As I will discuss, similar to a motion under rule 5.04, it is my view that a plaintiff on a rule 26.01 motion must give some evidence concerning discoverability where the proposed claim is brought after the expiry of the limitation period. That does not mean, however, that the requirements for rule 5.04 motions are the same for rule 26.01. Conceptually, the two are different. It makes sense that a plaintiff who is seeking to add a party must list the steps taken to identify the tortfeasor. For instance, in Higgins, the due diligence at issue was the plaintiff’s failure to take reasonable steps to identify the company that was contracted to remove snow from a sidewalk on which the plaintiff fell and was injured. On the other hand, on motions under rule 26.01, it does not necessarily make sense that the moving party be required to list the steps taken to discover the claim. A reasonable explanation, such as the plaintiffs’ explanation that the documents did not disclose the nature of Mitchell’s involvement in the impugned conduct beyond that of an accountant following his client’s instructions, ought to suffice.

[15] Indeed, in Pepper v. Zellers Inc. (c.o.b. Zellers Pharmacy) (2006), 83 O.R. (3d) 648 (C.A.), the Court of Appeal appeared to distinguish motions brought under rule 5.04(2) from those brought under rule 26.01. The plaintiff in that case had argued that the motion judge erred in undertaking a fact-based inquiry into the discoverability of her claim. The court rejected that argument. Lang J.A. stated the following, at para. 14:

Contrary to the appellants’ argument, the motion was not akin to a rule 26.01 motion to amend a pleading, which “shall” be granted absent compensable prejudice. Rather, a rule 5.04(2) motion to add parties and, in this case, to add parties after the apparent expiration of a limitation period, is discretionary. While the threshold on such a motion is low, the motion judge is entitled to consider the evidentiary record to determine whether there is a live issue of fact or credibility about the commencement date of the limitation period.

[16] The court in Pepper did not state that no reference to the evidentiary record is necessary on a rule 26.01 motion, however it did clearly suggest that there is a difference between rule 5.04 and rule 26.01 motions. I will now examine cases that discuss the evidentiary requirement for rule 26.01 motions where discoverability is at issue.

The authorities suggest that on a motion to amend pleadings, if there is an issue of fact or credibility on the discoverability allegation, leave should be granted with leave to the defendant to plead a limitations defence.

[17] A review of the jurisprudence addressing rule 26.01 suggests that on a motion to amend pleadings, where there is an issue of fact or credibility relating to discoverability, the customary practice is to grant leave to amend with leave to the defendant to include a limitation period defence.[^5]

[18] The two most recent appellate decisions addressing rule 26.01 motions and discoverability are Zapfe v. Barnes (2003), 66 O.R. (3d) 397 (C.A.) and Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 88, 88 O.R. (3d) 401. In Zapfe, a case involving both rule 5.04 and 26.01, the Ontario Court of Appeal stated the following:

In most cases one would expect to find, as part of a solicitor’s affidavit, a list of the attempts made by the solicitor to obtain information to substantiate the assertion that the party was reasonably diligent. In this case, however, the solicitor has explained why she could take no such steps. No information to the contrary was provided by the respondents.[^6]

[19] The court held that whether the solicitor’s explanation would survive scrutiny under cross-examination, and the precise amount of knowledge necessary to trigger the running of the limitation period, were matters for summary judgment or trial.[^7]

[20] In Frohlick, the Court of Appeal stated that in cases where a factual dispute exists as to when the limitation period began or there are facts that might operate to extend it, “the amendment will normally be allowed and the responding party will be given leave to plead the limitation period as a defence”.[^8]

[21] These cases were cited by Newbould J. in Austin in support of the proposition that questions of fact relating to discoverability should be left to a full determination to the trial judge.[^9] In Kilitzoglou v. Cure Estate, 2011 ONSC 679, Lauwers J. (as he then was) went so far as to state the following:

Where, as here, a limitations defence is in issue and the discoverability principle is asserted in response, the customary process is to grant leave to amend without prejudice to the defendants to plead and argue the limitations defence. I see no reason to depart from that practice in this case. Order accordingly.[^10]

[22] In 1309489 Ontario Inc. v. BMO Bank of Montreal, 2011 ONSC 5505, 107 O.R. (3d) 384, which involved a motion to strike under rule 21.01(1)(b) and a motion to amend under rule 26.01, Lauwers J. held that it was not “plain and obvious” that the limitation period had expired. He granted leave to amend the claim without prejudice to the defendant’s right to assert a limitation period defence.[^11]

[23] The starting point for a motion to amend pursuant to rule 26.01 therefore, is that factual disputes relating to discoverability are matters to be left for the trial judge. The case law seems somewhat unsettled on the amount of evidence the plaintiff is required to adduce in order to satisfy the motion judge that an issue of fact or credibility exists. In my view, however, this uncertainty does not give rise to the conclusion that there are decisions that conflict with Greer J.’s order.

The case law suggests that some evidence must be adduced by the plaintiff as to why discoverability is at issue

[24] In Rathburn v. Stevens, 2012 ONSC 2172, Master Hawkins accepted the proposition that where a limitation period has expired and the moving party seeks to add a new party or claim, evidence (usually affidavit evidence) must be introduced to demonstrate why the amendment is not statute-barred. Master Hawkins noted that evidence is required to ensure that the proposed amendment is not clearly untenable. Leave to amend was denied because no evidence at all was adduced with respect to the limitation period.[^12] As noted above, Master Dash stated in Wakelin that the amount of evidence required on a rule 5.04 motion was “not very much”.

[25] In 863880 Ontario Ltd. v. Canadian Pacific Railway Co., 2012 ONSC 644, Master Hawkins granted leave to amend pleadings because the case was “not a situation where it is clear that the limitation period has or has not expired”.[^13] In Jarmain v. Canadian Imperial Bank of Commerce, 2012 ONSC 1625, McEwen J. granted leave to amend because it was not clear from the materials that the limitation period had expired based on the doctrine of discoverability.[^14]

[26] In 1194388 Ontario Inc. v. Toronto Dominion Bank, 2014 ONSC 215, Master Dash stated that if the motion court determines on the evidence before it that the plaintiff actually knew of the facts making up the cause of action more than two years before the motion to amend was brought, the motion to amend must be denied. He further stated that if the issue is due diligence rather than actual knowledge, “the plaintiff has an evidentiary burden to explain what was done to ascertain the facts constituting the new cause of action and why those facts could not have been known earlier with due diligence” (emphasis added). However, if the plaintiff provide a reasonable explanation as to why the facts were not known or obtainable with due diligence within two years of moving to amend, such that the motion judge determines there is a triable issue of fact or credibility, the court will normally permit the amendments with leave to plead a limitations defence.[^15] Master Dash concluded by stating that “[i]t is only if the court is convinced on the evidence before it that the essential facts were actually known at the earlier date or that there is no issue of fact or credibility on discoverability then the amendments would be denied.”[^16] In the case, Master Dash held that the plaintiffs had provided a reasonable explanation, “on proper evidence”, as to why they had not discovered the material fact giving rise to their proposed new cause of action. He further held that the defendant had not suggested what further steps the plaintiffs could have taken by way of due diligence other than to commence an action and await production, and concluded that there was at least a “triable issue as to when the plaintiff ought, with proper diligence, to have discovered the cause of action.”[^17]

conclusion

[27] In my view, there are not decisions that conflict with Justice Greer’s order. The cases cited by the moving party all involve motions to add parties under rule 5.04, rather than motions under 26.01. In Pepper, the Ontario Court of Appeal pointed to the obvious difference between the two in that the language of rule 26.01 is mandatory. Although prejudice is presumed under both rules for claims brought beyond the limitation period, disputed issues relating to discoverability are to be left to the trial judge.

[28] The rule 5.04 cases cited by the moving party hold that the plaintiff bears the evidentiary burden to demonstrate that discoverability is at issue. It is unclear whether the court’s comments in Pepper lessen this onus in the context of a motion under rule 26.01. In any event, Justice Greer did not state that he plaintiffs had no obligation whatsoever to adduce evidence that discoverability was an issue. In fact, Greer J. pointed to the plaintiffs’ evidence that the extent and nature of Mitchell’s involvement was not discoverable based on the produced documents, as asserted by the defendant. Even if the evidentiary burden is the same for both rules, in my view, the decisions cited by the moving party do not conflict with Justice Greer’s order within the meaning of rule 62.02(4)(a).

rule 62.02(4)(b)

Issues

[29] The issues under this rule may be formulated in terms of the following questions:

1. Is the moving party correct in asserting that where a statement of defence pleads in clear terms that another person is responsible for the alleged wrongdoing, that the pleading constitutes notice and will be a sufficient triggering event to commence the running of the limitation period for the plaintiffs to bring an action?

2. Did Greer J. err in finding that there was a factual issue in dispute with respect to discoverability of the proposed claim?

analysis

1. Is the moving party correct in asserting that where a statement of defence pleads in clear terms that another person is responsible for the alleged wrongdoing, that the pleading constitutes notice and will be a sufficient triggering event to commence the running of the limitation period for the plaintiffs to bring an action?

[30] The moving party argues that there is good reason to doubt Justice Greer’s order because she erred in failing to hold that statements made in the Stern defendants’ and Frymer defendants’ statements of defence constituted sufficient knowledge to commence the running of the limitation period.

The cases relied upon by the moving party involve motions to amend pleadings to add a party pursuant to rule 5.04

[31] The moving party relies on Sloan v. Sauve Heating Ltd., 2010 ONSC 3871, Thompson v. Mungham, 2013 ONSC 4994, and Madrid v. Ivanhoe Cambridge Inc. et al., 2010 ONSC 2235 for the proposition that where a statement of defence pleads in clear terms that another person is responsible for the alleged wrongdoing, that pleading will constitute notice and trigger the running of the limitation period.

[32] As the respondents point out, all of these cases involve a motion to add a party pursuant to rule 5.04. Accordingly, they are distinguishable. In my view, in some cases it is possible that statements of defence could contain sufficient information to allow a motion judge to conclude that the plaintiff ought to have discovered its claim when it was served with the pleadings. In other cases, such as this one, the plaintiffs can reasonably assert that they did not discover their proposed claim until discovery. In this case, the question of whether the plaintiffs ought to have discovered their claim in the circumstances is a question of fact that should be left to the trial judge. For these reasons, I do not think that there is good reason to doubt Justice Greer’s order simply because the statements of defence made reference to Mitchell.

2. Did Greer J. err in finding that there was a factual issue in dispute with respect to discoverability of the proposed claim?

[33] The moving party submits that unlike the plaintiffs in Austin and Kilitzoglou, the plaintiffs in the instant case failed to put forward any evidence to support a cogent explanation as to why they could not have discovered the proposed claim earlier. It asserts there is no “factual dispute” at issue, and therefore Greer J. erred in granting leave to amend the statement of claim.

[34] Although I disagree with the respondents’ primary submission that they had no evidentiary burden whatsoever in establishing a factual dispute with respect to discoverability, I agree with their secondary assertion that the record before Greer J. established such a dispute.

[35] The Dove affidavit states that the plaintiffs were unaware of Mitchell’s conduct with respect to his participation in the depletion of Es-Lea’s assets and its purported 2008 reorganization until the examination for discovery of Stern, Frymer and Cohen. The moving party submits that they ought to have discovered the proposed claim because of the documentary production in 2010 as well as the statements of defence. The respondents say that these documents do not establish or give rise to knowledge that Mitchell was at the centre of and instrumental in devising a plan to deplete Es-Lea’s assets and strip the Es-Lea common shares from the Skrobacky Family Trust. They claim that the documents do not demonstrate or give rise to the knowledge that Mitchell was not innocently carrying out the instructions of his client or recording his client’s transactions.

[36] In my view, the respective positions of the parties raise a factual dispute as to whether the plaintiffs, with due diligence, could have discovered their proposed claim against Mitchell from the produced documents or statements of defence. As a result, in accordance with the jurisprudence, this is an issue that ought to be decided by the trial judge.

[37] For these reasons the application for leave to appeal is dismissed as the applicant has failed to establish that leave to appeal should be granted on the basis of either branch of Rule 62.02(4).

[38] Costs of the application for leave to appeal shall be left in the cause.

EDWARD THEN J.

RELEASED: August 1, 2014

CITATION: Skrobacky v. Frymer, 2014 ONSC 4544

DIVISIONAL COURT FILE NO.: 119/14

DATE: 20140801

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

RACHEL SKROBACKY by her litigation guardians Madelon Niman and Suzan Zarnett, MADELON NIMAN and SUZAN ZARNETT personally in their capacities as Trustees of the Skrobacky Family Trust 2 and MADELON NIMAN and SUZAN ZARNETT in their capacities as Trustees of the Skrobacky Family Trust 2, for and on behalf of Es-Lea Holdings Limited, Es-Lea Investments Limited and K.R.S. Construction Limited, and Rachel Skrobacky, by their litigation guardians Madelon Niman and Suzan Zarnett, for and on behalf of 2127890 ONTARIO LIMITED

Plaintiffs

– and –

JACK FRYMER, SAMUEL STERN (also known as SAM STERN), JANICE STERN, CAROL FRYMER, GARFIN ZEIDENBERG LLP, STEINBERG MORTON HOPE & ISRAEL LLP, STACY MITCHELL, THE CANADA TRUST COMPANY in its capacity as Estate Trustee During Litigation of the Estate of Abraham Skrobacky, ES-LEA HOLDINGS LIMITED, ES-LEA INVESTMENTS LIMITED, K.R.S. CONSTRUCTION LIMITED, CAMWOOD CONSTRUCTION LIMITED, CAMWOOD INVESTMENTS LIMITED, QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENS INC., JANFAR HOLDINGS LIMITED, S. STERN FINANCIAL CORPORATION, JAN-SAM HOLDINGS LTD., JORDALE MANAGEMENT INC., 1253174 ONTARIO LTD., MAX STERN INVESTMENTS LIMITED, BAYCREST CENTRE FOR GERIATRIC CARE, ISRAEL SOLDIERS FUND, JEWISH NATIONAL FUND OF CANADA, BETH DAVID SYNAGOGUE OF TORONTO, ZAREINU EDUCATIONAL CENTRE, ADAM NIMAN, DALE NIMAN, JEREMY NIMAN, DARA ZARNETT, DAVID ZARNETT, FRANCIS CUTLER (also known as FRANCES CUTLER HAHN), and MERCEDES STEWART

Defendants

AND BETWEEN:

QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENTS INC., MAX STERN INVESTMENTS LIMITED and JANFAR HOLDINGS LIMITED

Plaintiffs by Counterclaim

RACHEL SKROBACKY, by her litigation guardians Madelon Niman and Suzan Zarnett, MADELON NIMAN and SUZAN ZARNETT personally and in their capacities as Trustees of the Skrobacky Family Trust 2, and 2127890 ONTARIO LIMITED

Defendants by Counterclaim

AND BETWEEN:

JACK FRYMER, SAMUEL STERN (also known as SAM STERN), JANICE STERN, S. STERN FINANCIAL CORPORATION, JAN-SAM HOLDINGS LTD., JORDALE MANAGEMENT INC., CAROL FRYMER, 1253174 ONTARIO LTD., QUEEN PETER HOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENTS INC., MAX STERN INVESTMENTS LIMITED and JANFAR HOLDINGS LIMITED

Plaintiffs by Crossclaim

and

THE CANADA TRUST COMPANY in its capacity as Estate Trustee During Litigation of the Estate of Abraham Skrobacky, ES-LEA HOLDINGS LIMITED, ES-LEA INVESTMENTS LIMITED and K.R.S. CONSTRUCTION LIMITED

Defendants by Crossclaim

REASONS FOR JUDGMENT

THEN J.

RELEASED: August 1, 2014

[^1]: Parsons, at para. 1 [^2]: See also Wong v. Adler, 2004 8228 (ON SC), [2004] O.J. No. 1575. [^3]: Wakelin, at paras. 14-15 [^4]: Comtrade, at para. 7. [^5]: Austin, supra. See also: Kilitzoglou v. Cure Estate, 2011 ONSC 679; Re/Max Omega Realty (1988) Ltd. v. Draper, 2012 ONSC 4477. [^6]: Zapfe, at para. 35. It is important to keep in mind that in this case, the moving party sought amendments under both rules. [^7]: Zapfe, at para. 37. [^8]: Frohlick, at para. 32. [^9]: Austin, at para. 33. [^10]: Kilitzoglou, at para. 11. [^11]: BMO, at para. 27-28. [^12]: Rathburn, at paras. 35-38. [^13]: Canadian Pacific Railway Co., at paras. 109-109. [^14]: Jarmain, at para. 6 [^15]: Toronto Dominion Bank, at paras. 35-36. [^16]: Ibid. [^17]: Ibid., at para. 41-45