ONTARIO

SUPERIOR COURT OF JUSTICE

ESTATES LIST

COURT FILE NO.: 05-114/09
DATE: 20140228

BETWEEN:

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, for and on behalf of Es-Lea Holdings Limited, Es-Lea Investments Limited and K.R.S. Construction Limited, and RACHEL SKROBACKY, by her guardians Madelon Niman and Suzan Zarnett, for and on behalf of 2127890 ONTARIO LIMITED,

Plaintiffs

– AND –

JACK FRYMER and, 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 PETERHOLDINGS INC., QUEEN BROWN HOLDINGS INC., KING PETER INVESTMENTS 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 EDUCATION 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

David Chernos and Alex Smith, Co-Counsel for the Plaintiffs

Irving Marks, Counsel for STACY MITCHELL, one of the Defendants
Christine Van Geyn, Counsel for GARFIN ZEIDENBERG LLP one of the Defendants
Marni Pernica, Counsel for the various STERN Defendants
Alan B. Dryer, Counsel for the various FRYMER Defendants
Albert S. Frank, Counsel for all the QUEEN and KING Defendants and for JANFAR HOLDINGS LIMITED, one of the Defendants

HEARD: DECEMBER 18, 2013

ENDORSEMENT: GREER J.

[1] I was appointed as the Case Management Judge for this complex estate/trust/commercial file. The Plaintiffs originally brought on this Motion first on November 27, 2013, asking for Leave to further amend its Statement of Claim. This Proposed Second Further Amended Statement of Claim was to amend the already amended 55 page Statement of Claim issued on December 1, 2010. The first amendment was made on May 3, 2011 and it was secondly amendment on January 25, 2012.

[2] Some of the new amendments being asked for are simple amendments to the names of various Defendants. In addition, the Plaintiffs asked for additional relief, generally described as follows:

(a) adding five paragraphs of claims of relief against the Stern and Frymer Defendants;

(b) adding three paragraphs for damages against the Defendant, Stacy Mitchell, and amending several paragraphs describing Mitchell and his role in the litigation, including:

(i) a claim for knowing assistance of breach of trust and breach of fiduciary duty in connection with the depletion of the assets of Es-Lea Holdings,

(ii) particulars of his conduct alleged to constitute knowing assistance breach of trust and breach of fiduciary duty.

(c) adding three paragraphs regarding All Star Florida Realty and the roles of Stern and Frymer in relation to it and a claim for an accounting of profits in relation to that venture;

(d) amending or adding some descriptive or identifying words in various paragraphs;

(e) particulars of additional conduct of which the Plaintiffs learned during examinations for discovery.

[3] This issue of granting Leave was put over to December 18 to be heard, as there were preliminary issues to be dealt with on November 27, 2013. I made an Endorsement regarding some of those issues on that date. Counsel reported on December 18 that one other aspect of the hearing on November 27 had now been settled by one party.

Some background facts

[4] A reading of the names of the various litigants in the style of cause of this action and their various roles in this litigation, sets the stage for the complexities that arise in this action. Most of it centres around the estate planning the late Abe Skrobacky (“the deceased”) entered into over a number of years and the results which followed after his death. It also involves what took place regarding the administration of his estate and its various assets after his death on November 6, 2009.

[5] The deceased was survived by his wife, Rachel (“Rachel’), his daughter Madelon Niman (“Madelon”) and his daughter Suzan Zarnett (“Suzan”) and his grandchildren.

[6] Around 1994, the deceased entered into some estate planning, which involved an estate freeze, the set up of Family Trusts and various corporations to hold his assets. By 2003, some corporate assets were said by the Plaintiffs to have been intentionally depleted by certain Defendants. In 2008 there were efforts made to “reverse” the estate freeze, which affected the rights of the deceased’s family members.

[7] The deceased had earlier, in 2004, changed his Will and arranged to have a new one drafted. This testamentary document was followed by the drafting of two Codicils between 2004 and 2007, to that Will. These three documents effectively disinherited the deceased’s family, leaving his assets to various of his advisors and others.

[8] The family says that by 2006, the deceased was recognized as suffering from Alzheimer’s disease. When he died, they issued their Statement of Claim against a score of Defendants. Since that date, there have been extensive discoveries of the Defendants. No discovery of the Plaintiffs has yet taken place. In the meantime, the deceased’s Wife, Rachel, began suffering from dementia and was institutionalized. She is represented by her two daughters, Madelon and Suzan, who were appointed as her Litigation Guardians.

[9] When the Plaintiffs changed counsel in 2012, their new counsel decided that further amendments to the already amended Statement of Claim were necessary. The Plaintiffs say that these additional pleas against the Defendant, Stacy Mitchell (“Mitchell”), the deceased’s former Accountant, is for knowing assistance of breach of trust and knowing assistance of breach of fiduciary duty.

[10] Mitchell is said to also have acted professionally as the deceased’s Accountant and at one point in time for Rachel, as well as for many of the companies and trusts involved in this action. Further, the Plaintiffs say that Mitchell assisted in the depletion of the assets of Es-Lea Holdings Limited and assisted in its 2008 purported corporate reorganization.

[11] Some of the amendments involve the Stern and Frymer Defendants. Samuel Stern (“Stern”) is a mortgage broker and was one of the deceased’s close financial advisors over the years during which all the estate planning and Will changes took place.

[12] Jack Frymer (“Frymer”) was one of the deceased’s lawyers. He is the author of the 2004 Will, which cut back on the inheritance that the deceased’s wife and daughters would receive. In that Will, Stern becomes the residuary beneficiary. In the First Codicil, if Stern was to predecease the deceased, Stern’s wife, Janice, becomes the residuary beneficiary. In the Second Codicil to the Will, which was also drafted by Frymer, he personally and his wife, Carole, as well as his Secretary, become beneficiaries.

[13] The Canada Trust Company was appointed to act as the Estate Trustee during Litigation for the Estate to administer it while the estate was in litigation. The deceased’s grandchildren are also Defendants along with 2 other individuals. All other corporate Defendants are inter-related to the various non-corporate Defendants. Finally there are a few charities as Defendants.

The position of the Plaintiffs

[14] The Trial Date is set for March 16, 2015. That date is more than a year away, say the Plaintiffs. Therefore, they say, allowing Leave to be granted to again amend their pleadings, will be of no prejudice to the Defendants. They further say that the Defendants’ objection to have the Affidavit of Celesse Dove, a law clerk in the office of the Plaintiffs’ counsel, filed in support of their Motion, is not an appropriate objection in these circumstances.

[15] The Defendants know that Rachel cannot be examined, given her dementia. They say that one of Madelon and Suzan should have sworn the Affidavit in support of this Motion, rather than Ms. Dove.

[16] The Plaintiffs say that Ms. Dove has the greatest in-depth knowledge of the contents of all the documents that are now part of the evidence. They say that Madelon and Suzan are not the ones who can provide this knowledge as they have no direct knowledge of what steps the deceased took in his estate planning or what the contents of all those documents were, until he died. Ms. Dove is the one who has organized all of the documents as they came in as evidence, and has the background knowledge to make the statements she did in her affidavits.

[17] The Plaintiffs say that Leave should be granted to allow them to again amend their pleadings. They say that the issue raised by the Defendants of discoverability and the limitation period is an issue to be left to the trial judge, and not the judge hearing a motion to amend the Statement of Claim.

[18] It is the Plaintiffs’ position that they were unable to discover what they now say are necessary additions to their pleadings, until the examinations for discovery of the Defendants, particularly, that of Stern and Mitchell, had taken place. Stern’s examination for discovery began in June 2012. The Plaintiffs say that, “…Mitchell has put forward no argument or evidence that explains how the documents that he produced on or about January 31. 2010 should have led the plaintiffs to conclude that (as Mr. Stern and Mr. Frymer claimed on discovery) Mitchell was the architect of the plan to deplete Es-Lea’s assets and the attempt in 2008 to strip the Skrobacky Family Trust No.2 of the Es-Lea common shares.” While the Defendants dispute that this is the case, the fact is that the allegation remains there and it will be up to the Trial Judge to determine where the truth and the reality lies.

[19] The Plaintiffs say that there is more than sufficient evidence to satisfy the requirement for an amended claim to be pleaded with sufficient particulars for Mitchell to answer such claims in what will be the Defendants’ Amended Statements of Defence. That will follow the new proposed amendments.

[20] Since Mitchell has not been examined on the new issues, which have arisen in the new proposed amendments, if Leave is granted, there will have to be further discoveries on these issues.

The position of the Defendants

[21] The Defendants ask the Court not to grant leave to the Plaintiffs to again amend their Statement of Claim. Mitchell says that the Court should look to the Limitations Act 2002, and not allow this to happen, as it is now too late. He says that these new claims should have been discovered back in January of 2010 when Madam Justice Low made her Order. Mitchell points to the documents that were already then presented in the litigation, so that it should have been obvious then to the Plaintiffs, if they had more claims to make.

[22] Mitchell further says that the Plaintiffs have not shown that what is now pleaded is the foundation for any new claims. He says the burden should be shifted to Stern and Frymer, since they have already been discovered, and who now seem to say that Mitchell was more than just the accountant in all of this. He says that they are trying to shift the burden of what took place upon him and not themselves, as they are saying that he structured the transactions in the reverse freeze and the depletion of assets in Es-Lea.

[23] Mitchell says that he was an Estate Trustee for only a short period from late 2009 to January 2010. He says these new proposed amendments have made the claim against him to be much broader than what was originally pleaded, so that it seems a new cause of action is now being claimed. He says that the depletion of the assets of Es-Lea and its reorganization occurred between the years of 2002 to 2009. He says he complied with the Order of Madam Justice Low and delivered all relevant documents in his possession to the Plaintiffs’ then lawyers.

[24] Mitchell points out what was said about his role in the Stern and Frymer Defendants’ Statements of Defence, which shows the narrowness of it. He now says that if Leave is granted for the further amendment requested, he would be prejudiced if he is denied the opportunity to make any necessary cross-claims against the other Defendants and conduct discoveries of them on those claims.

[25] The Frymer Defendants say that they pleaded from the beginning that the estate freeze entered into by the deceased, was carried out by Mitchell. They say this was on notice and that the Plaintiffs have known all along about that allegation, and that they are simply trying to put a “new gloss” on the claims. They agree with Mitchell that if the amendments are allowed to go ahead, that there could be cross-claims made by him against them and the Stern Defendants.

[26] The Frymer Defendants are also concerned now about the claims about All Star Florida, and point to the fact that there has already been 8 days of discovery and these amendments will only mean added discoveries must take place. Given the nature of the new claims and allegations now raised by the Plaintiffs against Mitchell, the Frymer Defendants say they expect Mitchell to deliver a cross-claim against them for contribution and indemnity in connection with those new claims and allegations.

[27] Since the discoveries of the Frymer Defendants have already taken place and were completed, they may have to submit to further discoveries if such cross-claim is made. They also say, however, that they will not oppose the amendments but want their Costs of having to respond to a further amendment. They estimate these Costs to be $35,100 on a substantial indemnity basis or $27,300 on a partial indemnity basis. They describe these as costs thrown away.

[28] The Stern Defendants agree with the Frymer Defendants in their opposition to any further amendments to the Statement of Claim. They say there is no new evidence that has been put forward on which the Plaintiffs can rely in asking for a further amendment. They say that they have already pleaded that Mitchell was involved.

[29] The Stern Defendants point to a memo from Stephen Cohen, a lawyer then with Garfin Zeidenberg LLP. It is dated November 11, 2008, and is addressed to Mitchell, with a copy to Jack Frymer about the share exchange for Es-Lea being effective May 5, 2008. It says that the Skrobacky Family Trust No.2 exchanged 100 of its common shares for 1,623,274 common Class B shares valued at $1,623,274. In addition, 100 new common shares were then issued at a subscription price of $100.

[30] It should also be noted that the Plaintiffs says that on discovery, Stern deposed that the depletion of Es-Lea was a joint decision made by Mitchell and the deceased. He also said that Mitchell conducted the restructuring of Es-Lea and initiated the transfer of assets from Es-Lea to the deceased. These statements, say the Plaintiffs, require the Claim to be amended again to ensure that all facts on these issues are before the Court.

[31] The Stern Defendants say they are not opposing Leave being granted to allow these amendments. They say the prejudice to them can be resolved through the payment of their Costs with respect to any further amendments. They estimate such Costs to be $44,850 on a substantial indemnity basis as they say it will take 2 days to redraft pleadings and attend on further discoveries. They say on a partial indemnity scale, they would be $27,300.

[32] The Queen Peter and Queen Brown Holdings Inc., King Peter Investments Inc. Max Stern Investments Limited and Janfar Holdings Limited agree with the Stern and Frymer submissions. All of these Defendants, except Janfar, have been examined for discovery. They say that this Motion has delayed the completion of discoveries and if granted is prejudicial to them, and it will further delay the proceeding. They, too, ask for their Costs, which their Bill of Costs says are in the amount of $3,192.25.

[33] The Garfin Zeidenberg LLP Defendant originally opposed the Motion returnable on November 21, 2013, but put forward no opposition when the Motion was heard on December 18, 2013.

Analysis

[34] I reject the Defendants’ position that the affidavit of the Law Clerk, Celesse Dove, was not proper in these circumstances. They say that one of the two daughters should have sworn an affidavit in support of the Plaintiffs’ Motion. Ms. Dove, however, is the person who has assisted in compiling documentation and organizing it for trial. She is therefore the person who is most familiar with the documents served and filed on the parties and with the transcripts of the discoveries.

[35] On the other hand, the Skrobacky daughters, Madelon and Suzan, do not appear to have been privy or attuned to any of the deceased’s estate planning, including changes to his Will. Nor, do they appear to have been familiar with the documentation. There is no reason that either should be subject to cross-examination on an affidavit such as that sworn to by Ms. Dove. They will likely be asked to attend on examinations for discovery when all such discovery has been completed of the Defendants and the Estate Trustee during Litigation. The Defendants will then be able to question them on all issues.

[36] An Order shall go granting the Plaintiffs Leave to amend their pleadings accordingly, in the form presented in their Motion Record. I make such an Order, given the mandatory wording of Rule 26.01, which reads:

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.

In my view, there is no prejudice to any of the Defendants, which cannot be compensated for in costs. Discoveries are not yet completed and continue to be on-going. The Trial is more than a year away, so there is plenty of time for further discoveries to take place. There are therefore no delays to prevent the litigation from continuing to move forward and be heard in March of 2015.

[37] Mitchell objects to the amendments being allowed on the grounds that the Limitations Act, 2002, applies and that these new claims against him are statute-barred under Section 4 of the Act. He says that the expiry of a limitation period gives rise to a presumption of prejudice in this case. This issue was examined by Mr. Justice Newbould in Austin v. Overs Estate, 2010 CarswellOnt 10036, 2010 ONSC 7194, 195 A.C.W.S. (3d) 972 in paras. 33 and 34, where he held:

Where a factual dispute exists as to the discoverability of sufficient information to enable a cause of action to be asserted, and thus as to when a limitation period begins to run, it is a question of fact that should be left for determination to the trial judge on a full evidentiary record, and in those circumstances the amendment sought to be a statement of claim will normally be allowed and the responding party will be given leave to plead the limitation period as a defence. See Frohlick v. Pinkerton Canada Ltd. 2008 ONCA 3, [2008] CarswellOnt 66 (Ont. C.A.) at para. 32, per Rouleau J.A. and Zapfe v. Barnes (2003), 2003 52159 (ON CA), 66 O.R. (3d) 397 (Ont. C.A.) paras. 26 and 29 per Feldman and Cronk JJ.A. In my view such a result is appropriate in this case.

The defendants rely upon the principle that the proper interpretation of rule 26.01 is that the expiry of a limitation period gives rise to a presumption of prejudice which will be determinative unless the party seeking the amendment can show the existence of special circumstances that rebut the presumption.

[38] I adopt the reasoning of Mr. Justice Newbould as applying to the case at bar. He also points to Frohlick, supra, at para. 25, where the Court said there is no exhaustive list of what constitutes special circumstances in the context of rule 26.01. Since the issue of whether a limitation period has expired is being left to the trial judge, he said in para. 35, “…the presumption of prejudice relating to the expiry of a limitation period is not one for determination at this stage.” I agree with that statement, and it applies to the case at bar. See also: Kilitzoglou v. Cure, et al., 2011 ONSC 679 para. 11, and see Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517 at para. 16.

[39] I am satisfied on the facts before me that it is necessary at this date for the Plaintiffs to again amend their Claim. It was on their discoveries that Stern and Frymer gave answers that pointed to Mitchell’s role in the reverse estate freeze and the change of the share-holdings of Es-Lea. The Plaintiffs say those discoveries took place in June of 2012. The issues of discoverability and limitations are to be left to the Trial Judge to decide.

[40] The Plaintiffs agree that the Defendants provided them with extensive documentary production on or about January 31, 2010 but that was not the oral discovery date. They say, however, that Mitchell has not put forward any argument or evidence that explains how the documents he produced in January 2010 should have led them to conclude that he was one of the architects of the attempts made to strip the Skrobacky Family Trust No.2 of the Es-Lea common shares.

[41] I am satisfied that the amendments the Plaintiffs are asking to be made are sufficient in particulars of the elements of a claim for knowing assistance of a breach of trust and a breach of fiduciary duty, that Leave should be granted. An Order shall go that Leave be granted to the Plaintiffs to further amend their Statement of Claim in accordance with the draft claim attached to the Affidavit of Ms. Dove. The issues of discoverability and limitations shall be left to the Trial Judge to determine. The amended Statement of Claim shall be served and filed within 7 days of this Order.

The issues of Costs

[42] The Stern and Frymer Defendants take the position that if Leave is granted, which I have granted, that such prejudice to them can only be compensated by granting them their costs of having to amend their Statements of Defence. The Plaintiffs say that the purpose of awarding costs thrown away is to compensate a party for those expenditures of time and money that are rendered a complete waste by actions of a blameworthy party. Costs of amending a Claim, say the Plaintiffs, does not result in an award of costs that would be made on any other Motion, and there are no costs thrown away.

[43] While Mitchell and the Stern and Frymer Defendants will have to amend their Statements of Defence to respond to the new amendments to the Statement of Claim, any such response will not be a complete re-drafting of their pleadings. Mitchell may have more to add to his Defence than the other Defendants will, and he may be making cross-claims against others. Even this will not be a major redraft.

[44] Frymer says in a letter to Plaintiffs’ counsel dated November 20, 2013, that any such amendments will cause him to have to provide an Amended Statement of Defence, and to respond to any cross-claim that Mitchell may make against him. He also says that he will have to prepare a Supplementary Affidavit of Documents and Documentary Production in relation to these “new claims and allegations,” have further discovery of Mitchell and the Estate Trustee During Litigation (“ETDL”), as well as participate in further discovery of himself.

[45] If cross-claims are brought against these Defendants, they will have to respond to that, too. Again, this will not be a major redraft of their Defences. None of these parties will have to prepare a full new Statement of Defence. There will be no new parties added to the litigation. The pleadings will remain intact with certain additions to them as a result of the new claims against Mitchell and the fine-tuning of the Plaintiffs’ claims against Stern and Frymer.

[46] It is my understanding that the discovery of the ETDL was not completed before this Motion was brought. Their information revolves around administering the assets of the deceased that were in place after death. I cannot see how there would be any need for any further examination of them surrounding the further amendments to the Claim.

[47] I agree that certain Defendants will have some prejudice as a result of the new amendments. The real question is what should be the quantum of those costs for each one entitled to some costs.

[48] The issue of costs thrown away was dealt with by Master MacLeod in Belsat Video Marketing Inc. v. Zellers Inc., 2003 CarswellOnt 3059 (S.C.J.). In that case, the amendment being sought arose out of an allegation by the plaintiff that a new 5-year contract arose out of the facts alleged in a paragraph in the original claim. The Defendants claimed that this amounted to a “withdrawal of an admission.” In this case, as in the one at bar, there had been a change in counsel before the amendment was asked for. The Master found that the delay in moving the case forward came about as a result of a bankruptcy in the proceeding and not because of what was being asked for in the Motion. Further, the Motion had not been brought on, on the eve of trial.

[49] In paras. 31 and 32, the Master dealt with the issue of costs. He noted that in that case, the amendments were going to be so extensive, that underlining and striking out would result in an unreadable document. He therefore allowed a “fresh as amended statement of claim to be issued.” There are no costs thrown away in the case before me. There, the Master held that the plaintiff , “…shall pay costs on a substantial indemnity basis fixed at $5,000.00 and the trial judge may further adjust the costs if it appears this award is not sufficient to indemnify the defendant for the wasted costs when the matter comes to trial.”

[50] In Robinson Motorcycle Ltd. v. Fred Deeley Imports Ltd. 2009 CarswellOnt 480 (S.C.J.), the Master allowed costs of $18,900 on a partial indemnity scale, in a case where the amendment resulted in a fresh as amended statement of claim to be allowed. The amount awarded was said to reflect that there that had been numerous communications between counsel, and scheduling, rescheduling and attendances at case conferences to deal with amendments to timetable that caused prejudice to the defendants. There, too, the Master said in para. 87 that, if those costs were noted by the trial judge not to have been sufficient, that judge could deal with it at trial.

[51] I have carefully reviewed the Bills of Costs submitted by the various Defendants involved in this Motion and heard their submissions on what they estimate those costs to be. In my view, the Mitchell, Stern and Frymer Defendants are over-reaching in what they are asking for in these circumstances. I cannot see, in this case, that there will be a flood of new documents produced, as there are no new parties being added. Cross-claims, if made, surely are not going to produce much documentation, either. Nor do I see that there will be extensive examinations for discovery of the EDTL relating to these amendments.

[52] The lengthiest continued discovery on these amendments will be that of Mitchell, who denies any breaches. He also claims little involvement with Es-Lea and the reverse freeze, other than what he has already admitted to. If cross-claims are made by him, there will be further discovery of Stern and Frymer, but in my view, that will not be as extensive as Mitchell’s, since they have already participated in days of discovery. Since there has already been discovery about All Star Realty, there is likely no need for further discovery about it arising out of these amendments.

[53] While senior counsel for the Defendants may want to attend on further examinations for discovery arising out of the amendments, the drafting of the Amended Statements of Defence can be done by junior lawyers under the supervision of the senior counsel, as can other tasks such as further production, if any. The number of hours noted in the Defendants’ Bills of Costs, is in my view excessive. Much of it seems to me to relate to original pleadings and not amendments.

[54] Given these factors, I make the following awards of partial indemnity costs resulting from prejudice arising out of the further amendments to the Statement of Claim, to the following Defendants:

(a) Mitchell: the sum of $10,000 plus HST, to be paid within 30 days of this Order

(b) Stern: the sum of $6,000 plus HST, to be paid within 30 days of this Order

(c) Frymer: the sum of $6,000 plus HST, to be paid within 30 days of this Order

(d) The Queen, King and Janfar Defendants (and Max Stern Investments Limited, if it is included in that group), the sum of $2,000 inclusive of HST, to be paid within 30 days of this Order.

The Trial Judge shall have the discretion to increase these amounts, if he or she deems it appropriate at the end of the Trial. That Judge will have the benefit of seeing the actual changes to the Statements of Defence and seeing the new transcripts from further discovery arising out of this Order.

Costs of this Motion

[55] If the parties cannot otherwise agree on Costs, they shall send to me written submission no longer than 3 pages plus a Bill of Costs, copies of actual time dockets, and case law relied on, all within 30 days of the date of this Order. It shall be sent to me care of Judges’ Administration, 361 University Avenue, 1st floor. The Defendants shall serve and file their submissions first on the Plaintiffs who shall have 10 days after each is so served on them, to respond. If any Reply is necessary, it shall be made 10 days thereafter.

Greer J.

Released: February 28, 2014