SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-CV-405972

MOTION HEARD: October 26, 2011, March 7, July 18 and November 13, 2012

RE: Dr. Joseph R. Garber & Associates

v.

Joseph Falconeri and Brian Brock

BEFORE: Master Thomas Hawkins

APPEARANCES:

Michael A. Katzman for moving plaintiff
and proposed plaintiffs Dr. Joseph R. Garber
o/a Dr. Joseph R. Garber & Associates, Dr. Joseph R.
Garber and J.R. Garber Psycology Professional Corporation
Fax: (416) 628-2224

Leigh Harrison-Wilson for responding defendant
Joseph Falconeri on October, 26, 2011 and March 7, 2012;

Iman Abokor for responding defendant Joseph Falconeri
on July 18 and November 13, 2012
Fax: (647) 723-7565

Eric Adams for responding defendant Brian Brock
and proposed defendant Dutton Brock LLP
Fax: (416) 593-5922

No one for responding proposed defendant 1806867 Ontario Limited

REASONS FOR DECISION

Adding Parties

[1] This is a motion by the plaintiff Dr. Joseph R. Garber & Associates in part for leave to amend the statement of claim by adding a new plaintiff and two new defendants and by amending many of the allegations in the body of the statement of claim. The proposed draft amended statement of claim is at tab 1A of a motion record marked as volume five on this motion.

[2] This motion is brought under subrules 5.03(3) and 5.04(2) and rule 26.01.

[3] Subrule 5.03(3) provides as follows.

In a proceeding by the assignee of a debt or other chose in action, the assignor shall be joined as a party unless

(a) the assignment is absolute and not by way of charge only; and

(b) notice in writing has been given to the person liable in respect of the debt or chose in action that it has been assigned to the assignee.

[4] Subrule 5.04(2) provides as follows.

At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[5] Rule 26.01 provides as follows.

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[6] The existing defendants Joseph Falconeri (“Falconeri”) and Brian Brock (“Brock”) and the proposed new defendant Dutton Brock LLP (“Dutton Brock”) oppose this motion.

[7] The proposed new defendant 1806867 Ontario Limited (“180 Ontario”) does not oppose this motion. An order will therefore issue adding 180 Ontario as a defendant and granting the plaintiff Dr. Joseph R. Garber and Associates (“Garber & Associates”) leave to amend the statement of claim as asked as regards the proposed amended allegations against 180 Ontario in the draft amended statement of claim including the allegations in paragraphs 53 and 54 of the draft amended statement of claim, subject to my comments in paragraphs [63] to [65] below.

[8] Although a quick reading of the title of proceeding in the draft amended statement of claim leaves one with the impression that the original plaintiff Garber & Associates seeks to add several new plaintiffs, in fact the original plaintiff seeks to add only one new plaintiff, namely J.R. Garber Psychology Professional Corporation (“Garber P.C.”).

[9] The original plaintiff, Garber & Associates, is a sole proprietorship with Dr. Joseph R. Garber (“Dr. Garber”) as the proprietor. A sole proprietorship does not have a legal identity separate and apart from that of the sole proprietor. Dr. Garber commenced this action using the name of his proprietorship.

[10] Subrule 8.07(1) permits this. Subrule 8.07(1) provides as follows.

Where a person carries on business in a business name other than his or her own name, a proceeding may be commenced by or against the person using the business name.

[11] Similarly, because Dr. Garber has always been a plaintiff, the motion to add Dr. Joseph R. Garber o/a Dr. Joseph R. Garber and Associates and Dr. Joseph Garber to the list of plaintiffs does not involve adding any new plaintiff to this action.

[12] For these reasons the motion to add the proposed named plaintiffs other than Garber P.C. is granted.

[13] The motion to add Garber P.C. does involve adding a new plaintiff to this action.

[14] In his first affidavit filed in support of this motion, Dr. Garber explained that he carried on his practice of clinical psychology using the business name Garber & Associates until June 4, 2008. At that time he had Garber P.C. incorporated and continued his clinical psychology practice through Garber P.C. In his first affidavit Dr. Garber also states that Garber P.C. has “taken over” the accounts owed to his sole proprietorship, that is accounts receivable owed to Garber & Associates.

[15] This action is primarily one to recover payment of the balance allegedly owing for clinical psychology services which Dr. Garber rendered to one Trevor Lihou (“Mr. Lihou”) from December 1999 to April 2003.

[16] The draft amended statement of claim makes no mention of accounts receivable (and in particular, the account receivable respecting services rendered to Mr. Lihou) being assigned from Garber & Associates to Garber P.C. and does not allege (to use the wording of subrule 5.03 (3)) that notice in writing has been given to Falconeri, Brock and Dutton Brock as the persons liable in respect of the debt (or for damages equal to the debt for non-payment of it) that the debt allegedly owing in respect of services rendered to Mr. Lihou has been assigned absolutely from Garber & Associates to Garber P.C.

[17] Because such notice has not been given, in order to comply with subrule 5.03(3), it is necessary that both Garber & Associates as assignor and Garber P.C. as assignee of the debt owing in respect of clinical psychology services rendered to Mr. Lihou be made plaintiffs in this action.

[18] If all one read was the draft amended statement of claim, one would be unaware of any such assignment and ignorant as to why and on what basis Garber P.C. is a plaintiff.

[19] Further, subrule 5.03(5) is relevant to the motion to add Garber P.C. Subrule 5.03(5) provides as follows.

A person who is required to be joined as a party under subrule (1), (2) or (3) and who does not consent to be joined as a plaintiff or applicant shall be made a defendant or respondent.

[20] Although plaintiffs’ counsel may feel that it is implicit from what Dr. Garber says in his first affidavit that Garber P.C. consents to being added to this action as a plaintiff, to put the issue of compliance with subrule 5.03(5) beyond debate, Garber P.C. should file with me a written consent to be added as a plaintiff to this action.

[21] To give plaintiffs’ counsel an opportunity to correct the deficiencies I have identified in paragraphs [17] to [20] and as a term of granting leave to add Garber P.C. as a plaintiff, I direct Dr. Garber to add allegations respecting assignment and to file with me and defense counsel within 45 days a consent of Garber P.C. and a revised draft amended statement of claim.

[22] Falconeri, Brock and Dutton Brock resist the motion to add Garber P.C. as a plaintiff and Dutton Brock as a defendant on the ground that a relevant limitation period had expired when this motion for leave to amend was served on them effective October 14, 2011. Similarly, they argue that some of the proposed amendments to the statement of claim raise new causes of action that are also statute barred.

[23] If it is clear that Falconeri, Brock and Dutton Brock are correct in their limitation of action submissions, the motion to add Garber P.C. and Dutton Brock and most of the amended allegations in the draft amended statement of claim amount to untenable pleas. Leave to amend to raise an untenable plea should not be granted.

[24] Plaintiffs’ counsel submits that no limitation period had expired by October 14, 2011 when this motion was served, primarily because of the operation of the discoverability doctrine. This doctrine is more fully explained in paragraphs [30] and [31] below.

[25] Motions to amend pleadings and/or to add parties where the expiry of a limitation period is raised in response may be divided into three categories.

[26] The first category is the situation where it is clear that no limitation period has expired. In that situation the motions master or judge should grant leave to amend or to add parties.

[27] The second category is the situation where it is unclear whether or not a limitation period has expired. In that situation leave to amend or to add a party should be granted, subject to the term that the responding party or parties may raise a limitation of action defence. In that situation the issue of whether a limitation period has expired is left to be determined on a motion for summary judgment or by the trial judge.

[28] The third category is situations where it is clear on the evidence before the motions judge or master that a limitation period has expired. In that situation the motion to add parties or to amend a pleading should be denied.

[29] The limitation of action legislation which applies to this action is the Limitations Act, 2002, S.O. 2002 c. 24 Sched. B. (the “Limitations Act”). The limitation period is found in section 4 while the statutory discoverability doctrine is found in section 5.

[30] Section 4 of the Limitations Act provides as follows.

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[31] Subsections 5(1) and (2) of the Limitations Act provides as follows.

5.(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred.
(ii) that the injury, loss or damage was caused by contributed to by an act or omission,
(iii) that the act or omission was that of the person again whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first out to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause 1(a) on the day of the act or omission on which the claim is based took place, unless the contrary is proved.

[32] Dutton Brock submits that because the limitation period governing the proposed claims against it has expired, section 21 of the Limitations Act prevents the addition of Dutton Brock as a defendant. That section provides as follows.

21.(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.

(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.

[33] I have prepared the following chronology of events to assist in an understanding how sections 4 and subsections 5(1) and (2) of the Limitations Act apply to the facts underlying this motion.

Chronology

Date

Event

April 23, 1999

Brother of Mr. Lihou is killed in CN train accident.

1999

Mr. Lihou commences action against CN and Via Rail Canada Inc. for damages. Falconeri represents Mr. Lihou.

1999

Mr. Lihou referred to Dr. Garber for treatment. Falconeri tells Dr. Garber that he will be paid from proceeds of Mr. Lihou’s claim against CN.

December 22, 1999

Dr. Garber begins treating Mr. Lihou.

September 30, 2000

Falconeri pays Dr. Garber $10,000 on account of fees owing.

April 11, 2001

Mr. Lihou signs authorization & direction to Falconeri and any other legal representative of Mr. Lihou to pay fees and disbursements owing to Dr. Garber for treatment of Mr. Lihou from settlement or judgment funds arising from Mr. Lihou’s claim.

January 9, 2003

Mr. Lihou signs authorization and direction dealing with interest on fees and disbursements for Dr. Garber’s treatment of Mr. Lihou.

April 30, 2003

Dr. Garber ceases treating Mr. Lihou.

October 28, 2004

Mr. Lihou signs authorization and direction addressed to Brock who is now Mr. Lihou’s lawyer.

June 22, 2006

Garber & Associates commences action against Mr. Lihou. Arnold Zweig represents Dr. Garber.

July 11, 2006

Dutton Brock sends Zweig notice of intention to defend Garber v. Mr. Lihou action.

August 3, 2006

Dutton Brock serves Zweig with statement of defence in Garber v. Mr. Lihou action. Mr. Lihou denies liability to Garber and Associates.

June 4, 2008

J.R. Garber Psychology Professional Corporation incorporated. Dr. Garber continues his practice through this corporation.

October 23, 2008

Brock writes Zweig, advising Mr. Lihou’s action against CN has recently settled, and that the settlement is subject to a confidentiality agreement. Brock does not advise Zweig as to the settlement terms or when the settlement funds were paid or are payable. Brock advises Zweig that Brock or Dutton Brock is instructed to hold $102,804 for Dr. Garber’s fee claim.

November 6, 2008

Dutton Brock receives $900,000 in settlement of Mr. Lihou’s action against CN. These funds are deposited in the firm trust account.

January 27, 2009

Garber action against Mr. Lihou goes to mediation.

September 17, 2009

Mr. Lihou has 1806867 Ontario Limited incorporated.

December 2, 2009

Brock and Dutton Brock cease to represent Mr. Lihou. Mr. Lihou now represented by Minden Gross.

January 7, 2010

Dutton Brock pays out the last of the proceeds of the settlement of Mr. Lihou’s action against CN. No funds were paid to Dr. Garber or Garber P.C.

June 30, 2010

Garber & Associates commences present action against Falconeri and Brock.

January 18, 2011

Garber & Associates obtains order from Master Glustein that Brock serve his affidavit of documents by February 28, 2011.

February 28, 2011

Brock serves his affidavit of documents on Zweig but does not include copies of his schedule A productions.

March 7, 2011

Zweig sends Brock the first of four letters requesting copies of his schedule A productions.

April 4, 2011

Zweig obtains copies of Brock’s schedule A productions, including a Dutton Brock trust statement showing disposition of settlement funds in Mr. Lihou’s action against CN. Dr. Garber learns of disposition of settlement funds a few days later.

October 14, 2011

Motion for leave to amend statement of claim in this action served.

[34] The main issue on this part of this motion is whether the existing or proposed plaintiffs discovered or ought to have discovered the proposed claims before October 14, 2009, that is more than two years before this motion was served.

[35] It is implicit in the allegations in the original and proposed amended statement of claim that Dr. Garber agreed that he would be paid for the services which he rendered to Mr. Lihou from the proceeds received from the disposition of Mr. Lihou’s action against CN. We now know that Mr. Lihou’s action was resolved by settlement rather than by a judgment. The issue then becomes that of when the plaintiff Dr. Garber or proposed plaintiff Garber P.C. first knew or ought to have known when Mr. Lihou or one or both of the defendants or proposed defendant Dutton Brock had received the proceeds of the settlement of Mr. Lihou’s action against CN and failed to pay Dr. Garber or Garber P.C.

[36] To express that issue in terms of the four clauses in subsection 5(1)(a) of the Limitations Act, that issue involves the following subsidiary issues.

[37] For clause (i) the issue is when Dr. Garber or Garber P.C. first knew that loss had occurred because one or both of the defendants or Dutton Brock had received the settlement funds but neither Dr. Garber nor Garber P.C. were paid.

[38] For clause (ii) the issue is when Dr. Garber or Garber P.C. first knew that one or both of the defendants or Dutton Brock had received the settlement funds but refused or failed to pay Dr. Garber or Garber P.C.

[39] For clause (iii) the issue is who amongst the defendants and Dutton Brock received the settlement funds and failed to pay Dr. Garber or Garber P.C.

[40] As regards clause (iv), no one has suggested that at any relevant time Dr. Garber or Garber P.C. were ignorant of the fact that a legal action is an appropriate means to collect professional fees owing.

[41] In summary, since Dr. Garber and Garber P.C. always knew they were unpaid (except for the $10,000 which Mr. Falconeri paid Dr. Garber in 2000) the main issue is when Dr. Garber or Garber P.C. first knew or ought to have known that Mr. Brock or the proposed defendant Dutton Brock had received the settlement funds and failed to pay.

[42] The evidence is clear that Dr. Garber has known of the existence of Mr. Brock at least since October 28, 2004 (when he had Mr. Lihou sign an authorization and direction addressed to Mr. Brock) and of Dutton Brock since April 12, 2005 when he wrote a letter addressed to Mr. Brock at Dutton Brock.

[43] Plaintiffs’ counsel submitted that Dr. Garber first learned that Mr. Lihou’s action against CN had settled when Dr. Garber’s action against Mr. Lihou went to mediation on January 27, 2009. I disagree.

[44] On October 23, 2008 Mr. Brock wrote a without prejudice letter to Mr. Zweig on Dutton Brock letterhead advising that Mr. Lihou’s action had “recently” settled. In this letter Mr. Brock stated in part, “We are instructed to hold back funds from the settlement with respect to Dr. Garber’s account, in the amount of $102,804.03, in line with Dr. Garber’s account of September 30, 2008”.

[45] It is unclear who the “We” in this sentence refers to: Mr. Lihou, Mr. Brock, Dutton Brock or two or more of them. The word “we” and the word “I” appear several times in this letter. When examined for discovery in this action on May 16, 2011 Mr. Brock declined to answer questions about this letter.

[46] On June 12, 2012 Dr. Garber was cross-examined on the supplementary affidavit of April 13, 2012 which he swore in support of this motion.

[47] During the course of this cross-examination Dr. Garber was asked about his understanding of Mr. Brock’s letter of October 23, 2008. At one point (questions 94 to 98) Dr. Garber said that he understood from this letter that Dutton Brock was going to be holding $102,804.03 in trust for Mr. Lihou. However, later in his cross-examination he resiled from this and said that he understood from this letter that it could be Mr. Brock who was holding the funds in trust, that it could be Dutton Brock which was doing so, and that it was very difficult for him to know what to believe on this subject.

[48] It would be improper for me to resolve the issue of what Dr. Garber understood after reading Mr. Brock’s letter of October 23, 2008. On a motion for leave to amend a pleading the court should refrain from weighing evidence or making findings of fact. To do so would be to turn this pleadings amendment motion into a motion for summary judgment. I should not do so. See Griffiths v. Canaccord Capital Corp. (2005), 2005 42485 (ON SCDC), 204 O.A.C. 224 (Div. Ct.).

[49] Mr. Zweig did learn on April 4, 2011 that Dutton Brock received $900,000 from the settlement of Mr. Lihou’s action against CN and that these funds were then deposited in a trust account on November 6, 2008.

[50] The present motion to add Dutton Brock as a defendant in this action was served less than two years after April 4, 2011.

[51] It is unclear from this letter who is holding the settlement funds: Mr. Lihou, Mr. Brock, Dutton Brock or two or more of them. I do not fault Mr. Zweig for not writing Mr. Brock and asking who was holding the settlement funds because at the beginning of the letter, Mr. Brock stated that the settlement was subject to a confidentiality agreement which Mr. Lihou had agreed to.

[52] The letter was not a commitment to pay funds to Dr. Garber. Mr. Brock proposed moving forward with the action, discussing resolution of the issues or proceeding to arbitration or mediation of the issues.

[53] With Mr. Zweig’s receipt of this letter of October 23, 2008 Dr. Garber and Garber P.C. must be taken to have known that at least one of Mr. Lihou, Mr. Brock or Dutton Brock had received and was holding at least $102,804.03 in proceeds of the settlement of Mr. Lihou’s action against CN, and was not going to pay anything to Dr. Garber until Dr. Garber’s action against Mr. Lihou was resolved.

[54] With Mr. Zweig’s receipt of this letter Dr. Garber and Garber P.C. must therefore be taken to have “discovered” all the elements of a claim within the meaning of subsection 5(1)(a) of the Limitations Act with the exception of element (iii), namely the identity of the person who was holding the settlement funds and not paying Dr. Garber or Garber P.C. I say this because I regard the letter of October 23, 2008 as unclear or ambiguous on that subject.

[55] Dr. Garber commenced this action against Mr. Falconeri and Mr. Brock on June 30, 2010, less than two years after Mr. Brock’s letter of October 23, 2008 was written. The motion to add Dutton Brock as a defendant was served effective October 14, 2011, almost three years after Mr. Brock’s letter was written. Because I regard that letter as unclear or ambiguous as to who was holding the settlement funds and Dr. Garber’s evidence on this point conflicting I propose to give the plaintiffs leave to add Dutton Brock as a defendant, subject to the term that Dutton Brock be given leave to raise a limitation of action defence. That issue will have to be resolved on a motion for summary judgment or by the trial judge.

[56] In other words, I regard the facts underlying this motion as coming within the second category of situations I described in paragraphs [25] to [28] above, namely the situation where it is unclear whether or not a limitation period had expired when this motion was served.

Amending the Statement of Claim

[57] Apart from minor housekeeping amendments made to reflect the fact that in the amended statement of claim there is more than one plaintiff, the plaintiffs seek to amend some paragraphs from the original statement of claim and to add some paragraphs that are completely new. However the only amendments which the defendants and Dutton Brock oppose are new paragraphs 52, 55 and 56 of the draft amended statement of claim. There the plaintiffs propose to allege as follows.

52. The plaintiffs state that by their actions Falconeri, Brock and Dutton Brock intentionally interfered with the Plaintiffs’ economic and contractual relations.

53. The plaintiffs state that the defendant lawyers knew or ought to have known that the plaintiffs had an interest in the settlement proceeds. The plaintiffs state that the defendant lawyers knew or ought to have known that by paying monies to the corporation, they wrongfully interfered with the economic and contractual relations and rights of the plaintiffs in putting the funds outside the hands of Trevor such that Trevor could then claim that he (personally) had no money in which to pay the plaintiffs.

54. The plaintiffs state that the defendant lawyers knew or ought to have known that they were obliged to pay the plaintiffs account from the proceeds of settlement prior to paying their own accounts rendered by their respective firms for legal fees. They failed to do so and in so doing intentionally and wrongfully interfered with the plaintiff’s [sic] economic and contractual rights.

[58] The defendants and Dutton Brock submit that these paragraphs are untenable pleas because they raise new causes of action which are statute barred.

[59] I will deal with proposed paragraph 52 first. There are only three references to Dutton Brock in the original statement of claim. There is no allegation in the original statement of claim that Dutton Brock committed any civil wrong. Therefore the allegation in proposed paragraph 52 that by its actions Dutton Brock intentionally interfered with the plaintiffs’ economic and contractual relations does raise a new cause of action which may or may not be statute barred. I say this because, as previously discussed, it is unclear when Dr. Garber and Garber P.C. first knew or ought to have known that Dutton Brock was holding the proceeds of the settlement of Mr. Lihou’s action against CN in its trust account and failed to pay to Dr. Garber or Garber P.C.

[60] Proposed paragraph 52 is basically the pleading of a conclusion of law without the supporting facts, contrary to subrule 25.06(2). The actions of Mr. Falconeri, Mr. Brock and Dutton Brock are not identified, nor do the plaintiffs allege when these actions took place. Until those actions are identified one cannot tell with reference to Mr. Falconeri and Mr. Brock whether or not proposed paragraph 52 raises any new cause of action.

[61] Subrule 25.06(2) provides as follows.

(2) A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.

[62] I decline to give leave to amend in terms of proposed paragraph 52, but I do so without prejudice to the right of the plaintiffs to further amend proposed paragraph 52 by identifying the actions complained of and alleging when they took place so as to comply with subrule 25.06(2) and without prejudice to the right of the defendants and Dutton Brock to plead that proposed paragraph 52 as further amended still raises a new cause of action which is statute barred.

[63] I now turn to proposed paragraph 53. Although the defendants and Dutton Brock did not object to proposed paragraph 53, I have some problems with it. In proposed paragraph 53 the plaintiffs allege as follows.

53. The plaintiffs state that unbeknownst to them Trevor incorporated a company 1806867 Ontario Limited and did so on September 17, 2009. Substantial monies were paid out of the settlement funds to 180 Ontario. The totality of those funds were $550,679.38. In addition some $60,000 was paid to Trevor Lihou personally.

[64] In the second sentence of proposed paragraph 53 the plaintiffs do not allege who paid out part of the settlement funds to 180 Ontario or when the money was paid out. The plaintiffs should allege this. Similarly, in the fourth sentence of paragraph 53 the plaintiffs do not allege who paid some $60,000 to Mr. Lihou nor do they allege when these monies were so paid to him. Again the plaintiffs should allege this.

[65] I am of the view that the allegations that some of the settlement funds were paid to 180 Ontario raises a new cause of action. There was no reference to such payments to 180 Ontario in the original statement of claim. The plaintiffs should allege when they first discovered these payments to 180 Ontario. I assume it was on April 4, 2011. If so, this new cause of action is not statute barred because the present motion for leave to amend the statement of claim was served less than two years after April 4, 2011.

[66] The allegation that some of the settlement funds were paid to Mr. Lihou is not new. That was alleged in paragraph 23 of the original statement of claim.

[67] Leave to amend in terms of proposed paragraph 53 is denied subject to the term that the plaintiffs may further amend this paragraph so as to meet the objections I have set out in paragraphs [64] to [65].

[68] I now turn to proposed paragraph 55. As I have said in my discussion of proposed paragraph 53, the allegations of payment of some of the settlement funds to 180 Ontario raises a new cause of action. The words “the corporation” in the second sentence should be deleted and the words “180 Ontario” substituted to make it clear which corporation is referred to. If, as appears to be the case, the plaintiffs first learned that some of the settlement funds were paid to 180 Ontario less than two years before this motion was served on October 14, 2011 this new cause of action is not statute barred.

[69] Leave to amend in terms of proposed paragraph 55 is granted subject to my comments in paragraph [68] above.

[70] In my view proposed paragraph 56 does not raise a new cause of action. It simply alleges a new legal conclusion from facts alleged in the original statement of claim. In paragraph 23 of the original statement of claim there was an allegation that Messrs. Falconeri and Brock were paid out of the settlement funds.

[71] Because the only amendments to the statement of claim which the defendants and Dutton Brock opposed (apart from their opposition to adding parties) are proposed paragraphs 52, 55 and 56 and subject to my ruling on proposed paragraph 53, the plaintiffs are given leave to amend as proposed in the balance of the amended statement of claim.

[72] I will deal with the costs of this motion following my disposition of the discovery refusals part of this motion.

(original signed)

Master Thomas Hawkins

DATE: February 4, 2013