Vale Canada Limited v. Solway Investment Group Limited et al., 2021 ONSC 7562

COURT FILE NO.: CV-21-00659463-00CL

DATE: 2021-11-16

ONTARIO

SUPERIOR COURT OF JUSTICE

(COMMERCIAL LIST)

BETWEEN:

VALE CANADA LIMITED

Plaintiff

– and –

SOLWAY INVESTMENT GROUP LIMITED, SOLWAY INVESTMENT GROUP GMBH, SOLWAY COMMODITIES SÀRL, SOLWAY INDUSTRIES LIMITED, HMI NICKEL COÖPERATIEF U.A., COMPAÑÍA GUATEMALTECA DE NÍQUEL S.A., COMPAÑÍA PROCESADORA DE NÍQUEL DE IZABAL S.A., JANE DOE, JOHN DOE

and ABC CORPORATION

Defendants

Kent E. Thomson, Derek D. Ricci, and Chenyang Li, for the Plaintiff

R. Seumas M. Woods, Max Shapiro and Gregory Sheppard, for the Defendants, Solway Industries Limited, Compañía Guatemalteca De Níquel S.A. and Compañía Procesadora De Níquel De Izabal S.A

Steven I. Sofer, Sandra Barton and Elizabeth Kurz, for the Defendants, Solway Investment Group GmbH and Solway Commodities SÀRL

HEARD: September 13 and 14, 2021

KOEHNEN J.

REASONS FOR JUDGMENT

OVERVIEW

[1] The plaintiff, Vale Canada Limited (“Vale”), is a large, international mining company. It and its predecessor had an interest in a mine in Guatemala. Vale sold its interest in the mine in return for a stream of royalty payments that it says are worth at least $650 million. The mine was then sold several times over and, ultimately, ended up in the hands of some of the defendants.

[2] In December 2020, Vale served a statement of claim alleging that the defendants have: (i) failed to honour any of their royalty payment obligations; (ii) transferred the operations giving rise to the royalties to newly created entities and now take the position that the newly created entities are not bound by the royalty obligations; and (iii) dissolved the entities that signed the original royalty agreements. Vale alleges that the defendants’ conduct was designed to deprive it of the consideration it is entitled to under the royalty payment agreements.

[3] Before filing any statements of defence, the defendants brought motions to strike the claim under r. 21.01(1)(a) and (b). In response to those motions, Vale delivered an amended statement of claim. The defendants take the position that the amended claim was served improperly in the face of the motion to strike. As a result, the defendants bring further motions to declare the amended claim a nullity. In response, Vale brings a motion seeking leave to amend its statement of claim.

[4] At the hearing, the series of motions, counter-motions, and reply motions boiled down to two fundamental issues.

[5] The first issue concerns a potential conflict between rr. 21.01 and 26 of the Rules of Civil Procedure[^1] (the “Rules”). Rule 21.01 allows a party to determine a question of law raised by a pleading or to strike out a pleading on the grounds that it discloses no reasonable cause of action or defence. Rule 26.02(a) allows a party to amend its pleading without leave before the close of pleadings provided the amendment does not require the addition, deletion or substitution of a party. What if, as here, a plaintiff delivers an amended pleading in response to the motion to strike? The defendants say that the amended claim is a nullity. Vale submits that it has an absolute right to amend.

[6] At the end of argument on that issue, I indicated that I would reserve. The parties agreed that the appropriate next step was to consider the motion for leave to amend. This was because Vale had based its factums and oral argument on the r. 21 motions on its amended claim. The defendants, by contrast, had based their factums and oral argument on the r. 21 motions on Vale’s original claim. As a result, neither side was prepared to proceed on the r. 21 motions until I determined which statement of claim governed.

[7] This brings me to the second fundamental issue: a more conventional motion to amend the statement of claim. The defendants resist the amendments on the grounds that they are time barred, amount to withdrawing admissions in the original claim, are void of particulars, and amount to an abuse of process. Vale says that its amendments are proper.

[8] For the reasons set out in Part One, I find that a plaintiff who wishes to amend its claim in the face of a motion to strike should seek leave to do so even if the amendment is sought before pleadings are closed. The motion to amend should then be heard before any r. 21 motion. Any r. 21 motion should then be based on the state of the pleadings after the amendment motion has been decided. It strikes me that this approach is more consistent with: (i) the language of r. 26 when read in the context of the Rules as a whole; (ii) the Ontario Court of Appeal’s jurisprudence touching on this issue; (iii) judicial economy; and (iv) the overall trend to take a pragmatic approach to the interpretation of the Rules so that actions can be determined on their merits sooner rather than later. Although this determination can no doubt be frustrating to a defendant who has based its r. 21 motion on a certain set of assumptions that are then changed at the last minute, such frustration can be addressed through an appropriate costs award including, where appropriate, costs on a full indemnity scale.

[9] For the reasons set out in Part Two, I also allow Vale’s amendments. The amendments are justified under the mandatory language of r. 26. The defendants’ objections to the amendments are either unfounded on my reading of the amended claim (such as the defendants’ submission that Vale has not pleaded sufficient material facts) or are matters that should not be determined on a motion to amend (such as the interpretation of contracts or the application of limitation periods in the context of a complex factual matrix).

[10] Some of the arguments the parties raised on the motion to amend may also be relevant to a r. 21 motion. Indeed, the factums on the motion to amend refer back to portions of the factums on the r. 21 motion. My reasoning here relates solely to the considerations relevant to a motion to amend a statement of claim. While similar arguments might be raised on any future r. 21 motion, and while some or all of the reasoning below might be applicable to any such r. 21 motion, these reasons are not intended to be determinative or binding on any r. 21 motion addressing similar issues.

Part One: The Contest Between Rules 21 and 26

I. Chronology of Events Leading to the Motions

[11] Before analyzing either the positions of the parties or the law on the point, it is useful to summarize the chronology of events leading to the competing rr. 21 and 26 motions. The significant dates and events are as follows:

(i) December 31, 2020: Vale served its statement of claim. A few weeks later, the defendants advised Vale of their intention to bring a r. 21 motion.

(ii) March 26, 2021: A case conference was held before me. I set September 13 and 14 as the dates on which the defendants’ r. 21 motions, including a motion to strike the claim in its entirety, would be argued.

(iii) April 20, 2021: The parties agreed to a timetable for the motions to be argued on September 13 and 14.

(iv) June 15, 2021: The defendants served their notices of motion to strike the statement of claim.

(v) June 22, 2021: The defendants served their motion records and factums on the motion to strike.

(vi) August 11, 2021: Vale was supposed to serve its responding factum on the r. 21 motions. Instead, it served an amended statement of claim and a factum that defended the amended claim against the motion to strike rather than a factum that defended the original claim against the motion to strike.

(vii) August 26, 2021: The defendants served a motion to quash the amended statement of claim.

(viii) August 27, 2021: Vale served a notice of motion seeking leave to amend the original statement of claim.

II. Positions of the Parties

[12] The defendants take the position that the r. 21 motion should be argued based on the state of affairs that existed when the notice of motion was served and that there is no right to amend in the face of a motion to strike. They submit that this is a long-standing, fundamental principle that is necessary for the orderly administration of justice. If this principle were not in place, they argue that a respondent to any motion could constantly change the landscape underlying the motion, thereby causing unnecessary delay and complication. As a result, the defendants take the position that I am prohibited from dealing with the amended statement of claim until their motion to strike the original statement of claim is addressed.

[13] Vale argues that r. 26 creates an exception to the general principle that motions should be argued based on the state of affairs that existed when the notice of motion was served. Vale places great weight on the language of r. 26.02(a), which provides that:

A party may amend the party’s pleading,

(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;

[14] In this case, Vale notes that the pleadings had not closed when it delivered its amended claim. Therefore, it submits that the language of r. 26 gives it the absolute right to amend. Anything else, says Vale, would result in a judicial rewriting of r. 26.02(a).

[15] To some extent, the distinction between an absolute right to amend and the need to bring a motion for leave to amend is academic in the context of the motion before me because Vale ultimately moved to amend. Nevertheless, the parties delivered several factums on this issue and spent almost a full day arguing the point. I will therefore address the various submissions raised by both sides.

III. Analysis

[16] The starting point of the analysis for the defendants is Bruce v. John Northway & Son Ltd.,[^2] which itself is based on a series of older English cases. In Bruce, the plaintiff was a mortgagee. The defendant mortgagor was in default. The plaintiff commenced an action. The defendant then tendered the amount claimed by the plaintiff and brought a motion to stay the proceedings. After the defendant brought the motion to stay, the plaintiff took out a default judgment against the defendant. In those circumstances, the Senior Master held that:

After service of a notice of motion, as a general Rule, any act done by any party affected by the application which affects the rights of the parties on the pending motion will be ignored by the Court.

[17] Relying on other authorities, the Master went on to explain that, because the court cannot hear motions the moment they are brought, they should be heard based on the state of affairs at the time the motion was served.[^3] In the Master’s view, some date had to be fixed to crystallize the state of affairs on which motions will be argued.

[18] This principle was reiterated by the Court of Appeal for Ontario in Thibodeau v. Thibodeau.[^4] There, Blair J.A., speaking for a unanimous panel, stated that “[motions] must be decided on the basis of facts existing when the motion was launched.”[^5] According to the defendants, Thibodeau requires me to find that the amended claim is a nullity because, contrary to Blair J.A.’s statement, it was filed after the notice of motion to strike was served.

[19] The first application of Bruce in the context of a pleadings motion to which I was taken was the 2004 case of PaineWebber Mortgage Acceptance Corp. (Trustee of) v. Mundi.[^6] In Paine Webber, the defendant filed a motion to strike the statement of claim, in response to which the plaintiff filed an amended statement of claim. The plaintiff did not bring a motion seeking leave to do so.

[20] In a short five-paragraph endorsement, Echlin J. held that the principle in Bruce meant that, generally speaking, service of a notice of motion will preclude certain other steps from being taken (such as the amendment of a statement of claim without leave). Justice Echlin held that this was so despite the language of r. 26.02(a), which, again, permits a party to amend without leave before the close of pleadings. Echlin J. struck the statement of claim with leave to amend. The plaintiff then brought a motion for leave to amend, which was ultimately granted by a different judge.[^7]

[21] The defendants rely heavily on Paine Webber but ascribe to it a more absolutist tendency than my reading of it supports.

[22] PaineWebber does not, as the defendants submit, hold that the state of affairs on which a motion is to be decided is absolutely frozen as of the time a notice of motion is served. Rather, Justice Echlin said that:

Generally speaking, and in this case, the service of a Notice of Motion will preclude certain other steps from being taken, such as the filing of an Amended Statement of Claim without leave.[^8]

In other words, PaineWebber suggests that the appropriate step is not to serve an amended statement of claim, but rather to move for leave to amend.

[23] Vale takes a similarly absolutist view of the cases it cites, albeit in the other direction. By way of example, Vale relies on the Ontario Court of Appeal’s decision in Family Delicatessen Ltd. v. London,[^9] and suggests that it supports the plaintiff’s position that a statement of claim can always be amended in the face of a motion to strike before pleadings are closed.

[24] Family Delicatessen Ltd., however, deals with a slightly different situation. In that case, one of the defendants moved to strike the plaintiff’s claim against it. Unlike PaineWebber, the plaintiff did not simply file an amended statement of claim. Rather, it brought a cross-motion for leave to amend returnable the same day as the defendant’s motion to strike. The motions judge did not deal with the cross-motion to amend because he did not believe he was seized of it. Instead, the motions judge dismissed the action against the moving defendant and adjourned the cross-motion to amend the statement of claim to a later date to be fixed by the trial coordinator.

[25] A unanimous bench of the Court of Appeal held that the motions judge should have considered the plaintiff’s motion to amend before deciding the defendant’s motion to strike the original claim.[^10] The court came to this view even though the plaintiff had issued its statement of claim in 1998 but did not bring its motion to amend until close to the eve of trial (scheduled to take place in April 2005).[^11] The Court of Appeal nevertheless upheld the result to which the motions judge had come because even the amended claim did not disclose a cause of action.

[26] The critical limitation that Family Delicatessen imposes on Vale’s argument is that it does not affirm an ability to amend as of right in the face of a motion to strike. Rather, it merely says that a motion to amend that is brought in the face of a motion to strike should be heard before the motion to strike. Indeed, in Family Delicatessen there was no ability to amend as of right because the pleadings had been closed for some time.

[27] The Court of Appeal implicitly came to a similar view a few years later in Piedra v. Copper Mesa Mining Corporation.[^12] There, Cronk J.A. upheld a motion judge’s decision to strike a claim and stated, among other things, that:

I note that the plaintiffs did not seek to adjourn the proceedings before the motions judge for the purpose of further amending their pleadings. Indeed, we were advised that no further pleadings amendment was proposed before the motions judge. Finally, no draft amended pleading was filed with the motions judge or provided to this court.[^13]

[28] This again suggests that, in the Court of Appeal’s view, it is appropriate to amend a statement of claim in the face of a motion to strike. However, the decision leaves open whether the amendment requires leave or can be made as of right.

[29] Unfortunately, the competing principles to which Vale and the defendants point has resulted in a lack of clarity in the case law. This lack of clarity arises from several sources. In some cases, courts appear to be trying to control plaintiffs who have already made several rounds of amendments. In other cases, the appropriate case law is not being cited to courts. In still other cases, concepts like the ability to amend as of right before the close of pleadings and the preferability of hearing a motion to amend before a motion to strike are conflated into a single concept.

[30] Ultimately, this has led to several lines of authority, with some cases saying that motions must be argued on the state of affairs that existed when the notice of motion was served;[^14] some saying a plaintiff requires leave to deliver an amended claim in the face of a motion to strike;[^15] some saying that a plaintiff has a continued right to amend without leave before pleadings are closed even in the face of a motion to strike;[^16] some saying that a motion for leave to amend should be heard before a motion to strike;[^17] and some saying that a motion to strike should be heard before a motion for leave to amend.[^18]

[31] In my view, the appropriate approach is to follow the mainstream of the case law which holds that: (i) a plaintiff should not be able to amend a statement of claim without leave in the face of a motion to strike a statement of claim before the close of pleadings; and (ii) any such motion for leave to amend should be heard before the motion to strike. This approach has the benefit of the adhering to the long-standing principle that motions should be argued based on the state of affairs that existed when the notice of motion was served. At the same time, however, it retains the flexibility of allowing amendments even in the face of motions to strike.

[32] From Vale’s perspective, the most compelling objection to the approach I propose is that requiring leave to amend in the face of a motion to strike contradicts the express language of r. 26.02(a). As noted earlier, r. 26.02(a) provides that:

A party may amend the party’s pleading,

(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;

[33] According to Vale, requiring leave to amend in the face of such unambiguous language “requires the court to read in words that are simply not there” and violates the Supreme Court of Canada’s long-standing prohibition against doing so.[^19]

[34] I do not agree that requiring leave amounts to judicial redrafting of a legislative instrument. Rule 26.02(a) is not an island unto itself. It is a single rule that exists within the context of an entire body of rules and legal principles. Like any legislative instrument, it must be interpreted within the framework of the rules and principles in which it is found.

[35] There are least three principles within that framework that compete with Vale’s view of an unbridled right to amend regardless of the circumstances.

[36] The first, as already noted, is the general principle referenced in Thibodeau that motions should be argued based on the state of affairs that existed when the notice of motion was served.

[37] The second is found in r. 1.04, which calls for the Rules to “be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Coupled with that is r. 2.03, which provides that, “[t]he court may, only where and as necessary and in the interest of justice, dispense with compliance with any rule at any time.” Inherent in both r. 1.04 and r. 2.03 is a desire for the court to retain an ability to control its own process.

[38] The third principle is the culture shift that the Supreme Court of Canada called for in Hryniak v. Mauldin[^20] where the Court stressed that litigation was becoming far too costly and time-consuming because of procedural wrangling.

[39] In light of these principles, requiring leave to amend in the face of a motion to strike constitutes, in my view, the prudent course of action. Such an approach not only permits the court to control its own process, but also allows it to advance the other referenced principles in a way that is harmonious with the language of r. 26.

[40] That approach must necessarily be mindful of the right to amend under r. 26 which not only allows a plaintiff to amend without leave before the close of pleadings, but also provides in r. 26.01 that:

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.

[41] The rule sends a clear message: amendments are generally to be allowed.

[42] At the same time, however, the right to amend must be balanced against the competing principle that a motion should be determined on the basis of the state of affairs that existed when the notice of motion was served. There are valid reasons behind that principle. In its absence, the party responding to a motion to strike could try to change the underlying landscape on receipt of the motion and could keep changing it indefinitely.

[43] Myers J. was alive to this concern in Riopelle v. Trucash Rewards Inc.[^21] where he stated that in the absence of a requirement for leave to amend in the face of a motion to strike:

The alternative would be to let amendments be made as of right and then require multiple motions to strike that overlap with pre-existing motions to strike the original claim.[^22]

[44] Most would agree that a plaintiff who tried to amend “as of right” 15 times in the face of 15 successive motions to strike would be acting abusively.[^23] That sort of practice would be inconsistent with the “just, most expeditious and least expensive determination” of a proceeding on its merits that r. 1.04 calls for. In addition, it would conflict with the culture shift called for in Hryniak by subjecting parties to the sort of procedural wrangling that the Supreme Court warned against. Requiring leave to amend in the face of a motion to strike resolves this problem because it allows the court to control any such abuses.

[45] The imposition of a motion for leave to amend on a plaintiff is not onerous. As a general rule, it requires neither evidence, nor explanation or justification. It is therefore relatively speedy and inexpensive to bring.

[46] The practice endorsed in Family Delicatessen of hearing the motion to amend before the motion to strike is equally consistent with the foregoing principles, especially the direction in r. 1.04 to secure the most expeditious and least expensive determination of civil proceedings on their merits There is little point in taking an absolutist approach to the landscape being frozen upon the service of a notice of motion to strike in the context of a legal regime where successful motions to strike are usually accompanied by leave to amend.

[47] Indeed, it would waste party and judicial resources to hear motions to strike which, in all likelihood will result in leave to amend, if the plaintiff has already tried to correct the alleged defects in its pleading by seeking leave to amend. Arguing a motion to strike in those circumstances becomes a wasteful, academic exercise that not only violates r. 1.04, but also conflicts with the culture shift demanded by the Supreme Court of Canada.

[48] The pragmatic approach to the interpretation of the Rules that I am endorsing here was adopted by Newbould J. in 1632842 Ontario Limited v. Great Canadian Gaming Corp.[^24] where, he stated:

I have been referred to a number of rules and some case law dealing with them. It is hard to avoid such matters in dealing with procedural issues but the rules should not get in the way of arriving at a reasonable solution to procedural problems. The days of using the Rules as in a chess match to get to check point are long gone. Rule 1.04(1) should not be forgotten. It provides that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.[^25]

[49] Put another way, the purpose of the Rules is to obtain a just determination on the merits in the most expeditious and least expensive way possible. Their purpose is not to create obstacles to expeditious and cost-effective resolutions.

[50] As Elson J. of the Saskatchewan Court of Queen’s Bench noted in Gurniak v. Saskatchewan Government Insurance:

Just because something arguably can be done does not mean it should be done. The mere fact that the Rules of this court authorize, in a general way, a plaintiff to amend his claim without leave before the close of pleadings does not give rise to an unfettered right to do so. Not in all instances.[^26]

[51] The defendants submit that allowing a motion for leave to amend in the face of a motion to strike is abusive. They say that it would result in a waste of time and money for moving defendants because they will have prepared for the motion to strike only to have the rug pulled out from under them at the last moment by virtue of the amended claim. One of the risks of motions to strike has, however, always been their potential to give the opposing side a road map to a better pleading. Charney J. explicitly referenced this danger in 1806700 Ontario Inc. v. Khan:

One of the risks that a defendant takes in bringing a motion to strike before pleadings are closed is that it may provide the plaintiff with a blueprint on how to redraft or amend the statement of claim to cure the defects identified in the motion to strike. If the plaintiff amends the statement of claim it may well render the motion to strike moot. Amending a statement of claim in response to a motion to strike does not, in my view, constitute an abuse of process, although there may be costs consequences if left to the eleventh hour or made on multiple occasions. Such amendments are, of course, subject to any limitation period defence that might apply.[^27]

[52] Although this may be frustrating for defendants, the ultimate outcome differs little from the outcome of a successful motion to strike because, as noted, successful motions to strike are usually accompanied by leave to amend. If anything, arguing the motion to amend before the motion to strike saves the defendant the cost of preparing for and arguing the motion to strike. Moreover, Justice Charney’s approach of addressing a defendant’s frustration by way of costs is more effective than stubbornly arguing the motion to strike, succeeding, only to then have the plaintiff obtain leave to amend in any event.

[53] For the foregoing reasons, I propose to hear Vale’s motion to amend before any r. 21 motion. As noted in the overview, I also grant leave to amend. As a result, while the amended claim might have been a nullity, it is so only in the most technical of senses. Rather than declaring it a nullity on the defendants’ motion — only to have Vale issue and file the same document pursuant to an order arising from its motion for leave to amend — the more practical approach is to continue with the amended claim as already delivered.

Part Two: The Motion for Leave to Amend

I. The Facts

[54] Before addressing the proposed amendments and the defendants’ objections to them, it is useful to set out a more detailed description of the underlying facts. The following facts are taken from Vale’s original statement of claim.

[55] Vale is a large international mining corporation. In Canada, it is the successor corporation to Inco. For many years, Inco operated a nickel mine in Guatemala known as “Project Fenix” through the Guatemalan defendant, Compañía Guatemalteca de Níquel S.A. (“CGN”).

[56] In 2004, Inco sold its interest in CGN to Skye, a Vancouver-based junior mining company. As a result of the transaction, CGN became a wholly owned subsidiary of Skye, which became the beneficial owner of Project Fenix.

[57] The consideration Inco received was largely based on commission and royalty payments. Such payments were based on the volume of nickel produced over the life of Project Fenix. The transaction was structured by way of a Master Agreement, which provided that, after Skye had fulfilled certain conditions, CGN and Inco would enter into three additional agreements known as the Sales Agency Agreement, the Net Smelter Royalty Agreement, and the Production Interest Agreement (collectively referred to as the “CGN Agreements”).

[58] In 2006, Vale acquired Inco.

[59] By March 2007, Skye had fulfilled the conditions specified in the Master Agreement. CGN and Vale therefore entered into the CGN Agreements. The material terms of the CGN Agreements are as follows:

(i) The Sales Agency Agreement (the “Sales Agreement”) appointed Vale as the exclusive sales agent for all nickel products produced by CGN from material mined from Project Fenix. Vale is entitled to a 2.75% commission on such sales until the end of the life of the Fenix Mine.

(ii) The Net Smelter Royalty Agreement (the “NSR Agreement”) gave Vale the right to a royalty on the proceeds received by CGN for products produced from material mined from Project Fenix and sold pursuant to the Sales Agreement after the “Commencement of Commercial Production.”

(iii) The Production Interest Agreement (the “Production Agreement”) gave Vale a right to a variable cash payment on ore mined from Project Fenix after the “Commencement of Commercial Production.”

[60] In 2008 Hudbay, a TSX-listed mining company, acquired all of Skye’s shares. Skye thus became a wholly owned subsidiary of Hudbay. Vale pleads that the obligations of the parties to the Master Agreement and the CGN Agreements were unaffected by this transaction.

[61] In 2011, Hudbay sold its interest in Project Fenix to the Solway Group.

[62] Vale pleads that in connection with this sale, Solway Investment Group and its affiliates explicitly and repeatedly reaffirmed Vale’s continuing rights, interests, and entitlements in respect of Project Fenix. To facilitate the sale of Project Fenix to Solway Investment Group, the defendants Solway Industries and HMI Ned (both wholly-owned subsidiaries of Solway Investment Group) specifically guaranteed that the CGN Agreements would “continue unaffected” and be “binding and enforceable” following the sale. These guarantees were provided to Vale in a Termination and Assignment Agreement, dated August 5, 2011 (the “Termination Agreement”). The Termination Agreement was concluded between Vale, Hudbay, HMI Nickel Inc. (previously Skye), Solway Industries, and HMI Ned.

[63] Vale alleges that in late 2013, the defendants began implementing a scheme to deprive it of the benefits to which it is entitled to under the CGN Agreements. By way of example, on December 30, 2013, Solway Investment Group sent a letter to Vale, signed by the Chief Investment Officer of Solway Industries, in which Solway advised that it had transferred the “Fenix Smelter Assets” from CGN to a newly formed Solway entity, ProNiCo.

[64] Solway then took the position that CGN had no further obligation to make payments under either the Sales Agreement or the NSR Agreement because those agreements based Vale’s rights on products that CGN received or sold from Project Fenix. As a result of the transfer to ProNiCo, however, CGN would no longer be receiving or selling such products. Vale defines this as the “Asset Transfer Scheme” in its statement of claim.

[65] The letter went on to state that CGN would nevertheless continue to make payments to Vale under the Production Agreement (i.e., the third CGN Agreement). As noted above, payments under the Production Agreement were based on “Commercial Production.” The concept of Commercial Production was, in turn, based on production of a certain percentage of the capacity of the Fenix Smelter. An initial feasibility study was produced in 2011, which set out the projected production and smelting capacity of Project Fenix.

[66] In November 2014, the defendants delivered a revised feasibility study which doubled the capacity set out in the 2011 study. In effect, this also doubled the amount of production required to meet “Commercial Production” as defined in the Production Agreement.

[67] The defendants then advised Vale that the expanded smelter capacity referred to in the 2014 feasibility study meant that Commercial Production had not yet occurred and would not occur until 2016 or later. As a result, Solway informed Vale that it would not make any payments under the Production Agreement until Commercial Production based on the expanded capacity estimates was achieved.

[68] In its statement of claim, Vale alleges that the defendants have not, in fact, expanded the actual capacity of the Fenix Smelter as set out in the 2014 feasibility study. According to Vale, this was part of an unlawful scheme to deny it payments under the CGN Agreements. Vale defines this as the “Production Scheme” in its statement of claim.

[69] As a result of the Asset Transfer and Production Schemes, Vale states that it has not received any payments under the CGN Agreements even though “Commercial Production” began in 2014.

[70] On January 14, 2015, Vale commenced two arbitrations against certain defendants. One was commenced under the CGN Agreements and involved CGN and ProNiCo. The other was commenced under the Termination Agreement and involved Solway Industries and HMI Ned — the entities that allegedly guaranteed Vale’s rights under the CGN Agreements.

[71] Before any substantive steps were taken in the arbitrations, Vale entered into Consent and Tolling Agreements with CGN, ProNiCo, Solway Industries, and HMI Ned (the “Signing Defendants”). Pursuant to these agreements, Vale says that the parties agreed that the issues raised in both arbitrations would be litigated in the Ontario Superior Court of Justice and that any limitation period would stop running as of the date of the Tolling Agreement (September 18, 2015).

[72] Vale issued its statement of claim in December 2020 using a different law firm than the one it had used to issue the Notices of Arbitration. In both the arbitrations and the original statement of claim, Vale alleged that the Asset Transfer and Production Schemes were unlawful arrangements intended to deprive it of its contractual rights under the CGN Agreements.

[73] The defendants who were not signatories to the Tolling Agreement (the “Non-Signing Defendants”) brought motions to strike the statement of claim in its entirety as against them, principally on the ground that the claims against them were time barred. The Signing Defendants brought motions to strike portions of the claim against them on the ground that it contained new claims for which the limitation period had not been affected by the Tolling Agreement and because of an alleged lack of particularity for certain other claims.

[74] As noted earlier, Vale delivered an amended statement of claim in response to these motions and now seeks leave to amend the statement of claim in the form of the amended claim it delivered.

[75] The most significant amendment is the allegation that the Non-Signing Defendants are bound by the Tolling Agreement because it was intended that the signatories were signing on behalf of their affiliates and related entities as well as themselves.

[76] The defendants submit that the proposed amendments fundamentally change the nature of the claim by removing certain paragraphs and adding others, all with a view to defeating the defendants’ limitations arguments on the r. 21 motion.

[77] In addition, Vale amended its claim to add new allegations to the effect that the defendants unlawfully dissolved HMI Ned in December 2019. HMI Ned, it will be remembered, was a guarantor of Vale’s rights under the CGN Agreements after the Solway Group acquired Project Fenix. As a result of its dissolution, Vale says that it is no longer able to pursue HMI Ned on its guarantee.

[78] The defendants submit that these amendments should be prohibited because they are time barred, amount to an abuse of process, withdraw admissions, and violate the rules of pleadings contained in rr. 25.06 and 25.11.

II. Principles Underlying Rule 26

(a) Rule 26 Generally

[79] Before addressing the specific objections to the proposed amendments, it is useful to set out the principles governing amendments to pleadings under r. 26 generally and as applied to limitation periods.

[80] Rule 26 demonstrates a strong predilection towards allowing amendments. As already noted, r. 26.02(a) allows a party to amend without leave before the close of pleadings provided the amendment does not necessitate adding, deleting or substituting a party. Even where amendments require leave, r. 26.01 provides that:

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.

[81] The principles surrounding amendments to pleadings were summarized by the Court of Appeal for Ontario in 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co.[^28] There, Hourigan J.A. noted that:

• The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process; or the pleading discloses no reasonable cause of action.

• The amendment may be permitted at any stage of the action.

• There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source.

• The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided.

• Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial.

• At some point the delay in seeking an amendment will be so lengthy and the justification so inadequate, that prejudice to the responding party will be presumed.

• The onus to prove actual prejudice lies with the responding party.

• The onus to rebut presumed prejudice lies with the moving party.[^29]

[82] The concept of failing to disclose a reasonable cause of action (as referenced in Justice Hourigan’s first point) has in turn been interpreted to mean one that is patently ridiculous, incapable of proof, or clearly impossible of success. Amendments must, however, be read generously, with allowances made for deficiencies in drafting.[^30]

[83] Once an amendment passes this threshold, the court cannot go beyond the text of the pleading to assess its strengths or weaknesses. In addition, the motions judge cannot weigh evidence, interpret controversial contractual provisions, or make findings of fact.[^31]

[84] The “Advocacy Notes” with respect to r. 26 contained in Carthy, Millar & Cowan’s Ontario Annual Practice note that:

This Rule has been in force in its present form since 1984 and yet it is still difficult for some lawyers to realize that “shall” means “shall” and amendments will be made on request unless irreparable prejudice is demonstrated. The advocate must face the possibility that the opponent may ask for important amendments on the eve of trial or even during, or after, trial.[^32]

[85] The purpose of r. 26 has been summarized by the Court of Appeal for Ontario as follows:

The Rule is designed to carry out the underlying principles reflected in the Courts of Justice Act…of encouraging public access to the courts (s. 71) and affirming the role of the Superior Court as a court of equity (s. 96) where actions are decided on their merits.[^33]

[86] The Court of Appeal’s observation that cases are generally to be decided on their merits is particularly relevant here. During the motions before me, information about the underlying facts and evidence was presented in a way that was relatively complex. This made me wary of making any final determinations unless the issues were quite clear cut. Following the Court of Appeal’s guidance, it seems to me that all other issues should wait for a determination on the merits or, at the very least, something other than a motion to amend.

[87] By way of example, the parties filed 11 factums on these motions. While some of those factums were for the r. 21 motions — which, again, were, strictly speaking, not before me — the factums addressing the amendments referred back to the factums on the r. 21 motions and incorporated portions of them by reference. In addition, many of the arguments advanced turned on the interpretation of documents that were incorporated into the statement of claim by way of reference. While dealing with a single letter that has been incorporated into a claim by reference may be a relatively straightforward exercise, this was not the case on the motions before me. For example, the statement of claim referred to the Notice of Arbitration. The Notice of Arbitration, in turn, referred to correspondence. Such correspondence did not entail an isolated communication, but rather referred to lengthy strings of correspondence that must be read, understood, and interpreted in the factual context in which they were written. That sort of detailed, almost forensic analysis, is not, in my view, appropriate on a motion to amend. Such an exercise goes well beyond assessing allegations in a statement of claim against the rules of pleadings. It would inevitably require the assessment of evidence and the interpretation of agreements — all of which is beyond the role of a judge hearing a motion to amend.

(b) Rule 26 and Limitation Periods

[88] As noted, many of the objections the defendants raise to the proposed amendments are based on limitations issues. The general policy of Ontario courts with respect to limitations periods was set out by the Court of Appeal in Mazzuca v. Silvercreek Pharmacy Ltd.[^34] There, the court noted that English courts had developed a conservative, strict, constructionist approach that emphasizes the enforcement of limitation periods at an early stage in proceedings. By contrast, the Court of Appeal noted that Canadian courts have tried to balance limitation periods against mandatory language favouring amendments such as that found in r. 26.[^35]

[89] In achieving the balance in any given case, it is important to keep in mind that permitting an amendment does not eliminate a limitations defence. The defence remains fully available. It will simply need to be determined at a later stage where a more fulsome record is available. This suggests that for a limitations issue to prevent an amendment, the issue must be fairly clear-cut. Indeed, the Court of Appeal for Ontario has expressed a reluctance to make findings about limitation periods in the absence of a full record.[^36]

[90] To succeed on a limitations point on a motion to amend, the party resisting the amendment must demonstrate prejudice.[^37] Prejudice can be actual or presumed. Actual prejudice requires detailed and specific evidence to that effect.[^38] The defendants have introduced no such evidence here. That leaves only presumed prejudice.

[91] Prejudice will be presumed after inordinate delay. The presumption of prejudice is rebuttable. Where the moving party provides an adequate explanation for the delay, the presumption of prejudice is rebutted.[^39]

[92] On the facts before me, the relevant delay is that between the time of the original statement of claim and the proposed amendment. There is no inordinate delay within that time frame. The original statement of claim was issued in December 2020. The amended claim was served in August 2021, before the defendants filed their statements of defence.

[93] I say that the relevant delay is the time between issuing the original claim and delivering the amendment because the question before me is solely whether the plaintiff should be granted leave to amend. The effect of any delay between the events at issue and delivery of the original statement of claim should be determined at a later stage because neither side was prepared to argue the r. 21 issue due to the way the motions unfolded.

[94] I turn now to the specific amendments to which the defendants object.

III. Objections Related to the Limitation Period

(a) The Implied Term Binding Non-Signatories

[95] The strongest objections to the amended claim come from the defendants who did not sign the Tolling Agreement (the Non-Signing Defendants). They argue that the original statement of claim reveals that the key facts on which it was based were known to Vale more than two years before its statement of claim was issued. For example, they note that the original claim clearly indicated that Commercial Production was achieved in 2014, that Vale never received any payments under the CGN Agreements, and that the second feasibility study was delivered in 2014 as part of a scheme to deprive Vale of its rights. The Non-Signing Defendants were not joined in the arbitration and did not sign the Tolling Agreement. As a result, the limitation period against them in relation to those claims would have expired by the end of 2016. The Non-Signing Defendants raised this issue in the materials they served on their r. 21 motions.

[96] In response, the plaintiff amended its statement of claim to allege that the Tolling Agreement was intended to capture not just the signatories but also their affiliates and related entities. More particularly it pleads:

123. In entering into the Consent Agreement, it was the mutual intention of the parties to address all possible causes of actions and claims arising from or related to the issues raised in the CGN Arbitration and the TAA Arbitration the (“Disputes”) should be determined in a single, consolidated proceeding in the Ontario Superior Court of Justice, including all possible causes of actions and claims Vale might assert against the parties to the Consent Agreement and their related and affiliated entities. It was for the sake of convenience only that the signatories to the Consent Agreement were limited to Vale, Solway Industries, HMI Ned, CGN and ProNiCo.

124. In agreeing to the Tolling Agreement, each of Solway Industries, HMI Ned, CGN and ProNiCo were acting as agents for their respective affiliates and related entities, including Solway Investment Group, Solway Group and Solway Commodities. It was for the sake of convenience only that the signatories to the Tolling Agreement were limited to Vale, Solway Industries, HMI Ned, CGN and ProNiCo.

125. Pursuant to the Tolling Agreement, the parties agreed expressly or impliedly that all potentially applicable limitation periods associated with the Disputes (as defined above) were suspended and extended until the Termination Date (as defined in the Tolling Agreement), including in respect of all possible causes of actions and claims Vale might assert against the parties to the Tolling Agreement and their related and affiliated entities.

[97] The Non-Signing Defendants submit that the allegation of an implied term to the effect that the Tolling Agreement was intended to bind the affiliates and related entities of its signatories is patently ridiculous and incapable of proof. They argue that this amendment cannot survive because the Tolling Agreement is incorporated into the pleading by reference, is signed only by the Signing Defendants, contains an entire agreement clause, contains a clause that states that the agreement can only be amended by written instrument signed by all signatories, and contains a clause to the effect that the Tolling Agreement “is not intended to detract or prejudice in any way any right, defence or equities that a Party may have against any person or entity who is not a Party to this Agreement.”

[98] While I understand the frustration, a defendant may feel when faced with an amendment of the kind at issue here, I do not believe it is appropriate to deny leave to amend.

[99] In essence, the amendment calls on the court to interpret the Tolling Agreement. The plaintiff says it should be interpreted so as to include affiliates and related entities within its scope. The defendants say it should be interpreted to include only signatories.

[100] It is now clear, however, that contractual interpretation involves issues of mixed fact and law because it requires courts to apply principles of contract to the words of the written agreement, considered in light of the factual matrix in which the contract arose.[^40] Interpreting a contract in the absence of a sufficient evidentiary base on which to assess the factual matrix amounts to a reversible error.[^41] Numerous courts have held that it is inappropriate to interpret contracts on motions under r. 21.01(1)(a) where no evidence is admissible except with leave of a judge or on consent of the parties.[^42] That point applies with equal force to r. 26 motions, under which, as noted, motions judges are precluded from weighing evidence, interpreting controversial contractual provisions, or making findings of fact.[^43]

[101] The point has even greater force when considering the alleged presence and interpretation of implied terms. Finding and interpreting an implied term requires, almost by definition, an inquiry into the factual matrix. Striking the allegation of an implied term at this stage would be prohibiting an inquiry into the factual matrix; an area that the Supreme Court of Canada has held is integral to contractual interpretation.

(b) Limitations Periods and Recurring Conduct

[102] In response to the motion to strike the original statement of claim, Vale also amended its statement of claim to allege that the defendants’ breaches constituted recurring causes of action. Vale’s theory here is that a succession or repetition of separate acts of the same character constitute separate events, each of which gives rise to the running of a fresh limitation period.[^44] Vale says that this can be contrasted with a single act that has continuing effect, which only gives rise to a single limitation period that commences on the day the conduct was committed.[^45]

[103] More particularly, in its amended claim Vale alleges that every time information or a payment was due under the CGN Agreements but was not provided, there was a fresh breach of the agreements such that a new limitation period commenced in respect of that breach. The defendants, by contrast, say that the limitations period began running on December 19, 2014, the date on which Vale, according to its original statement of claim, advised that it was entitled to payments under the Production Agreement.

[104] On the pleading before me, I cannot say that the allegation of recurring breach is incapable of proof. The ultimate determination of that issue turns in large part on the details of the alleged conspiracy, the details of the alleged breaches, and the interpretation of the CGN Agreements. None of those issues can be determined on a motion to amend.

[105] Notwithstanding the above, the defendants further submit that the allegation of a recurring cause of action is improperly pleaded because it is based on bald, conclusory statements.

[106] I read the amended claim differently. By way of example, in paragraphs 60-62, 67, 78, 70-72, 87, and 100, Vale alleges specific, recurring obligations that the defendants owed and alleges recurring breaches of those obligations as frequently as quarterly. In addition, paragraphs 157, 160, and 170 contain allegations about specific recurring conduct pursuant to the Asset Transfer and Production Schemes, which Vale says deprived it of contractual benefits to which it was entitled.

[107] In response to the possibility that I might find the amended claim to be sufficiently particularized, the Non-Signing Defendants submit that I should, at a minimum, dismiss the claim for damages that were suffered as a result of acts committed more than two years before the action was commenced.

[108] I do not think that this is appropriate for three reasons. First, as noted earlier, Vale alleges that the Tolling Agreement applies to the Non-Signing Defendants. As noted earlier, deciding that issue would require me to engage in an analysis that is prohibited on a motion to amend.

[109] Second, given Vale’s allegations of nondisclosure, asset stripping, improper corporate dissolutions, and conspiracy, making final determinations by parsing damages between defendants on a motion to amend creates the potential for far too much mischief.

[110] Third, Vale has also pleaded Guatemalan law under which limitation periods for continuing conduct do not begin to run until the conduct has been completed.

(c) New Causes of Action

[111] The defendants submit that only the claims asserted in the two arbitrations — which they describe as contract-based claims — were tolled by the Tolling Agreement. The defendants submit that Vale is now asserting additional, non-contractual claims which are time barred and were never tolled by the Tolling Agreement; for example, claims for breaches of Guatemalan law.

[112] On my reading of the documents, things are not that clear cut. Paragraph 3 of the Tolling Agreement states that all limitation periods in respect of “the Action” are tolled. The “Action” is defined in Recital G of the Tolling Agreement as the proceeding that the parties agreed to commence in Ontario in lieu of the Arbitrations. Recital E of the Tolling Agreement refers to the agreement “to have the issues set out in the” arbitrations determined in Ontario.

[113] Vale submits that this means that it was the “issues” raised in the two notices of arbitration that were tolled, not merely the specific causes of action pleaded.

[114] Included under the heading “Description of the Issues and Vale’s Position” in the Arbitration Notice are: “Vale's Interests Under The CGN Agreements” and “Solway’s Disregard of Vale’s Rights Under the CGN Agreements.” Vale submits that these are the broadly worded issues in respect of which the limitations period has been tolled.

[115] Vale further submits that any precision of what issues were tolled is a matter of interpreting the Tolling Agreement in light of its factual matrix — something that cannot be done on a motion to amend.

[116] The Signing Defendants further submit that the amended claim raises new causes of action that were not raised in the arbitrations and are therefore time barred because they were not caught by the Tolling Agreement. It seems to me, however, that it is at least arguable that it was the broadly worded “issues” raised in the notices of arbitration that were tolled.

[117] In addition, limitation periods apply to facts, not their legal characterization. Thus, if the original claim sets out the facts on which the claim is based but an amendment applies a new legal characterization to the facts that were previously pleaded, there is no new cause of action pleaded and the limitations period is not triggered.[^46] For purposes of a limitations defence, a cause of action is the factual situation that gives rise to a claim, not the legal characterization of it. By way of example, if the original claim pleaded a series of facts and alleged that those facts constituted a tort, an amendment to plead breach of contract arising out of those same facts would not trigger a limitations period.[^47] By contrast, what may trigger a limitations period are fundamentally different facts and a fundamentally different claim.[^48] Even when considering whether an amendment pleads fundamentally new facts, however, it is necessary to read the original statement of claim generously with some allowance for drafting deficiencies.[^49]

[118] The amended claim does not plead a fundamentally new set of facts against the Signing Defendants than did the Notice or Request for Arbitration. Both pleaded that the CGN Agreements gave Vale certain rights and that Vale had been denied those rights in certain ways. The conduct by which the Signing Defendants deprived Vale of those rights remains fundamentally the same in the amended claim as it was in the Arbitration. The characterization of those facts as amounting to a breach of Guatemalan law does not amount to a new cause of action, but rather a new legal characterization of existing factual conduct.

[119] I appreciate that in this last point, I am applying a principle of Ontario law to claims under Guatemalan law. Whether that is correct or not may depend on the degree to which Guatemalan law applies a similar principle. No submissions on the approach of Guatemalan law to this issue were made on the motion before me. In the absence of proof of foreign law, it is deemed to be the same as the lex fori.[^50]

[120] The defendants further allege that the amended claim does not allege specific conduct by any of the defendants in Guatemala. In this regard, I think it is necessary to read the amended claim generously. It is clear that the claim addresses physical assets in Guatemala and contractual obligations in respect of those assets. It also alleges that title to those assets has changed, that delivery of nickel to parties in Guatemala has changed, and that information relating to production and smelter capacity in Guatemala has been withheld. In those circumstances, I cannot conclude on a motion to amend that the claims under Guatemalan law are impossible of success.

[121] The defendants also submit that the CGN Agreements are incorporated by reference into the amended statement of claim and that those agreements are, in turn, governed by Ontario law. They note that the amended pleading does not allege that any contract is governed by Guatemalan law.

[122] The fact that the contractual relations between the plaintiff and the defendants are governed by Ontario law does not necessarily mean that Guatemalan law is irrelevant when dealing with conduct such as the transfer of assets or delivery of nickel in Guatemala. That, too, is an issue that must be assessed based on a full examination of the facts.

IV. Admissions

[123] The defendants submit that the proposed amendments have the effect of withdrawing admissions that Vale made in its original claim. This is potentially problematic because admissions cannot be withdrawn without leave under r. 51.05.

[124] More specifically, if applicable, r. 51.05 imposes the onus on Vale of satisfying the court that leave to withdraw an admission in a pleading should be granted.[^51] To obtain leave to withdraw an admission, Vale must introduce evidence that addresses: (a) whether the proposed amendments raise a triable issue in respect of the truth of the admission; (b) whether there is a reasonable explanation for the withdrawal, such as inadvertence or erroneous instructions; and (c) whether Vale has established that the withdrawal will not result in any prejudice that cannot be compensated for in costs.[^52]

[125] The defendants note that Vale has provided no evidentiary basis to withdraw the admissions. Therefore, they say that the amendments withdrawing admissions should be struck.

[126] The key question, however, is whether the proposed amendments amount to withdrawals of admissions. In my view, they do not.

[127] The alleged admissions fall into three categories. The first is the removal of a number of paragraphs from the original statement of claim that refer to Commercial Production beginning on August 1, 2014.[^53] The defendants argue that these paragraphs have been removed in order to avoid their argument that the claim is time barred.

[128] I read the amended statement of claim differently. Although certain paragraphs referring to production beginning in June 2014 and Commercial Production beginning August 1, 2014 have been removed, the concept and the dates remain in paragraphs 1(b)(iii), 83, 89, and 95–97 of the amended claim. As a result, whatever arguments those dates give the defendants on the limitations issue remain unabated.

[129] The defendants make similar arguments with respect to paragraph 143 of the original claim, which provided that certain Solway defendants confirmed in December 2013 that payments under the Production Agreement would be made to Vale. Although paragraph 143 has been removed, the same information remains in the amended claim at paragraphs 108–109.

[130] The second type of admission that the defendants submit Vale removed are the references in paragraphs 101 and 103 of the original claim to a letter, dated December 19, 2014, from Vale to certain defendants. In the letter, Vale asserted that it was entitled to payments based on sales of product from Project Fenix, and that the continued failure to make payments would constitute a breach of contract.

[131] The deletion of the reference to that letter makes no difference to whatever limitations argument may be evident on the face of the amended claim. The amended claim continues to assert that production began in 2013 and that Commercial Production began by August 1, 2014. Vale also admitted in its factum and in argument that the letter of December 19, 2014 continued to be incorporated by reference into the amended statement of claim.

[132] On my reading of the amended claim, the removal of certain dates from certain portions of the claim is more editorial than substantive because the material dates remain elsewhere in the pleading.

[133] The third category of admissions that Vale is said to have removed centres around paragraph 112 of the original claim. In that paragraph, Vale indicated that on September 18, 2015, Vale, Solway Industries, HMI Ned, CGN, and ProNiCo entered into the Tolling Agreement. As noted earlier, after the Non-Signing Defendants brought their r. 21 motion to strike on the grounds that they had not signed the Tolling Agreement, Vale sought to amend its claim to allege that the Tolling Agreement was also intended to bind affiliates and related entities of the signatories.

[134] Amendments that add allegations can amount to withdrawing an admission just as much as amendments that remove allegations can.[^54]

[135] The case law has, however, taken a restrictive approach to the definition of an admission. The broad consensus reflected in the case law indicates that, when considering whether an admission has been withdrawn, an admission is defined as an intentional, unambiguous, and deliberate concession.[^55]

[136] Since an admission is an intentional, unambiguous, and deliberate concession, it is rare to find an admission in a statement of claim.[^56] As Newbold J. put it in Canadian Premier Life Ins. Co. v. Sears Canada Inc.

While it would be foolhardy to say that an admission or concession to a defendant could never be found in a statement of claim, I would be reluctant to find such an admission unless it was clearly stated. If the admission was said to arise by inference, in my view the inference would need to be compelling and not inconsistent with some part of the pleading.[^57]

[137] Just how strictly these concepts are applied is demonstrated by Yang (Litigation Guardian of) v. Simcoe (County).[^58] In that case, the plaintiff alleged in his original statement of claim that he was travelling south on a highway, lost control of his vehicle, and veered into the northbound lane where the defendant, who was travelling northbound, hit him. Three weeks before trial, the plaintiff delivered an amended claim alleging that it was the defendant who entered the southbound lane and hit the plaintiff. DiTomasso J. allowed the amendment, stating:

Generally, admissions in a pleading are made boldly and baldly and they are, in general, specific and identifiable as admissions. An admission contemplated by Rule 51 is one that is an unambiguous deliberate concession to a position taken by the defendant. An admission contemplated by Rule 51 occurs when the plaintiff admits that a set of facts were posed by the defendant is correct. An admission must be an intentional concession to the other side and not simply the result of the words chosen in the claim. A factual pleading made in error cannot fairly be characterized as a deliberate admission.[^59]

[138] Williams J. echoed similar sentiments in Ottawa-Carleton Standard Condo. Corp. No. 977 v. Soho Champagne Condominiums Inc., stating:

The moving parties argue that the plaintiff made admissions in its responses to the moving parties’ demands for particulars, when it attached dates to the conduct alleged in paragraph 54 of the statement of claim. I find that it did not. These dates were merely facts pleaded by the plaintiff, which the plaintiff was entitled to update, revise or correct. Leave of the court was not required to change these dates or to otherwise amend the statement of claim in December 2019; pleadings were not closed at the time.[^60]

[139] In Stronach v. Stronach, Cavanagh J. came to a similar view:

Belinda submits that the following statements in Andrew’s pleading, before the proposed amendments, are admissions: (a) Elfriede is the principal beneficiary of the 445 Trust; and (b) Andrew supports Frank’s appointment as a trustee of the Family Trusts.

I disagree that these pleaded statements are admissions. The statements are made in a statement of claim and do not admit a statement in another pleading. Belinda has not shown that in her statement of defence she accepted these statements as admissions.

A plaintiff is not precluded by Rule 51 from amending a statement of claim to plead a new or different facts from those pleaded in an existing statement of claim, or from withdrawing statements of fact pleaded in a statement of claim, unless the statements qualify as admissions that were deliberately made as a concession to the opposing party. If they so qualify, leave to withdraw the admissions is required. The statements in Andrew’s pleading which he proposes to delete are not admissions.[^61]

[140] The defendants note that paragraph 112 of the original statement of claim stated that “Solway Industries, HMI Ned, CGN and ProNiCo entered into a Tolling and Standstill Agreement”. The defendants submit that the proposed amendment — to the effect that the Tolling Agreement was intended to bind the affiliates and related parties of the signatories to the Tolling Agreement — withdraws the admission in paragraph 112 of the original claim that only Solway Industries, HMI Ned, CGN, and ProNiCo entered into the Tolling Agreement.

[141] In my view, this falls more into the category of a choice of words, pleading additional facts, or pleading different facts than it falls into the category of withdrawing an admission. The amendment does not amount to the withdrawal of a deliberate, intentional admission that the Non-Signing Defendants were not caught by the Tolling Agreement. The original claim makes no “bold and bald” concession on this point.

[142] As in Soho Champagne and Stronach, Vale is entitled to plead different facts from those pleaded in the original claim, especially at this early stage of the proceedings.

[143] The defendants rely on two cases in particular for the submission that the plaintiff is withdrawing an admission. The first is Sampson & McNaughton Ltd. v. Nicholson.[^62] In that case, the plaintiff initially pleaded that the relationship between the parties was governed by a written agreement. The plaintiff then wanted to amend the claim to assert that the relationship was governed by terms very different than those contained in the written agreement. The proposed amendment was found to amount to a withdrawal of an admission and was refused.

[144] Sampson is distinguishable on two grounds. First, it was decided under the old rules and was decided before the more recent authorities — set out in paragraphs 135 to 139 above — developed a consensus around the issue. Second, the proposed amendment was made late in the day after the parties had filed a certificate of readiness for trial. Here, the amendments are being made before the pleadings are even closed.

[145] The second case is Neuman v. Medical Engineering Corp.[^63] It, too, was decided before the more recent authorities referenced above. It is also distinguishable on its facts. In Neuman, the plaintiff had applied ex parte to amend a class action claim. The Class Proceedings Act, 1992[^64] required that all motions be made to the judge responsible for case managing the proceeding. The plaintiff had, however, brought its ex parte motion before a different judge. The case management judge had in fact addressed a similar issue shortly before the amendment was sought and had come to a contrary conclusion than the one the plaintiff sought. Even in those circumstances, however, the class actions judge did not reverse the ex parte ruling but simply granted leave to appeal to the Divisional Court.

[146] These cases merely stand for the uncontroversial proposition that, in certain circumstances, it may be possible to construe an amendment as a withdrawal of an admission. They do not overrule the substantial body of jurisprudence on which Vale relies, which emphasizes the high bar that applies before an amendment will be found to constitute a withdrawal of an admission.

V. Rule 25.06 and Particularity

[147] The defendants submit that a number of claims in the amended pleading do not meet the level of particularity required by r. 25.06.

(a) Provision of Information

[148] Vale’s amendments allege that the defendants failed or refused to provide ongoing information with respect to Project Fenix.[^65] The defendants submit that those claims are deficient because they contain no material facts to support any obligation to provide information and do not plead any instance where the information was requested and refused.

[149] I would not strike the amendments for those alleged deficiencies. In paragraphs 60, 61, and 67 the amended claim alleges that it was an express or implied term of the CGN Agreements that Vale would receive information about Project Fenix’s operations.

[150] The law has progressed far enough that most would agree that it is not scandalous, frivolous or vexatious to argue that a contractual obligation that turns on the achievement of particular milestones also contains an implied term entitling the beneficiary of the obligation to information about those milestones. This is not to say that an implied term does exist, but merely that it is not frivolous to allege that one does. Moreover, as noted, assessing the merits of an allegation that an implied term exists requires an assessment of the factual matrix, which is prohibited on a motion to amend.

(b) Fraudulent Concealment

[151] The defendants submit that Vale’s fraudulent concealment allegations at paragraphs 181–183 of the amended claim should be struck because they are unsupported by material facts and fail to comply with r. 25.06(8), which requires full particulars where fraud is alleged.[^66]

[152] I do not agree. Paragraphs 181 to 183 of the amended claim read as follows:

181. As particularized herein, the Defendants have actively, intentionally and fraudulently concealed material information from Vale concerning (i) the ongoing mining and processing operations at Project Fenix, and (ii) the precise corporate structure of the Solway organization, including the dissolution of HMI Ned (which was not disclosed to Vale until January 2021), in order to keep the combination of the Conspiratorial Acts concealed.

182. Because of the ongoing concealment by the Defendants particularized herein, Vale cannot determine if and when the Commencement of Commercial Production occurred. As

set out herein, Vale’s entitlement to payments under the Production Agreement and the NSR Agreement begins with the Commencement of Commercial Production.

183. As a result of the Defendants’ fraudulent concealment, the full extent and particulars of the Conspiratorial Acts remain concealed from Vale.

[153] The opening words of paragraph 181 are “as particularized herein”. In other words, the fraudulent concealment claim is not based on the allegations contained in these 3 paragraphs alone, but is based on the allegations contained within the entire claim. Read as a whole, the claim is capable of supporting a cause of action for fraudulent concealment. It specifically refers to the obligation to provide information and the failure to provide it. It also refers to the dissolution of corporations that owed obligations to Vale and pleads that this dissolution was effected to avoid those obligations. In addition, it pleads that Commercial Production was undertaken and that Vale was denied the fruits of such production. Finally, it refers to the transfer of production from a party with obligations towards Vale to a party with no obligations to Vale and alleges that this was done for the purposes of denying Vale its rights under the CGN Agreements — all without prior notice to Vale. These are more than bald allegations. They inform the defendants of the material facts against them and inform them about the allegations to which they need to respond to defend themselves.

(c) Conspiracy Claim

[154] The defendants submit that the tort of conspiracy requires a plaintiff to plead material facts in support of each element of the alleged civil conspiracy with heightened particularity.[^67] If the conspiracy claim involves multiple parties, the defendants submit that the plaintiff must plead the specific conduct that is attributed to each defendant so that each defendant knows the case it has to meet.[^68] Allegations that are general, broad, bald, or vague and which lack the requisite particularity of supporting material facts should be struck from a claim.[^69] It is no answer to say that particulars will be provided before trial.[^70]

[155] I read the amended claim differently than the defendants do. By way of example, paragraphs 60-62, 67, 68, 78, 70-71, 87, and 100 (to name but a few), allege that the defendants had obligations to disclose information and not to take steps to deprive Vale of the benefit of the CGN Agreements. Paragraph 170 of the amended statement of claim contains 13 specific acts that the defendants committed in furtherance of the alleged conspiracy to deprive Vale of information and to deprive Vale of its rights under the CGN Agreements.

[156] The defendants call for even further particulars and submit that the plaintiff must distinguish between the various defendants and state specifically what each defendant did as part of the conspiracy. The words of Strathy J. (as he then was) in Cannon v. Funds for Canada Foundation[^71] provide an appropriate response:

In applying that test, I am required to construe the pleading generously, having regard, among other things, to the plaintiff's lack of access to key documents and discovery information at the pleadings stage. This observation is particularly apt in a conspiracy pleading, where the conduct complained of is invariably outside the plaintiff’s knowledge. Cumming J. commented on this very point in North York Branson Hospital v. Praxair Canada Inc., 1998 14799 (ON SC), [1998] O.J. No. 5993, 84 C.P.R. (3d) 12 (Gen. Div.), at para. 22:

In truth, the very nature of a claim of conspiracy is that the tort resists detailed particularisation at early stages. The relevant evidence will likely be in the hands and minds of the alleged conspirators. Part of the character of a conspiracy is its secrecy and the withholding of information from alleged victims. The existence of an underlying agreement bringing the conspirators together, proof of which is a requirement borne by a plaintiff, often must be proven by indirect or circumstantial evidence. A conspiracy is more likely to be proven by evidence of overt acts and statements by the conspirators from which the prior agreement can be logically inferred. Such details would not usually be available to a plaintiff until discoveries. These considerations and the general theme of Hunt, instructing courts not to shy away from difficult litigation, also militate against holding pleadings in civil conspiracy cases to an extraordinary standard.

[157] The acts done in furtherance of the conspiracy are to deprive Vale of information, transfer assets from corporations with obligations to Vale to corporations without obligations to Vale, and to dissolve corporations with obligations to Vale — all with a view to depriving Vale of the benefit of the CGN Agreements and the Termination Agreement.

[158] As in Cannon, Vale was not privy to each specific act. In the circumstances alleged, however, it would not be unusual for there to have been some form of communication between the entities involved in bringing about the alleged ends. Whether that rises to the level of a conspiracy is not something I have to determine on a motion to amend. It is sufficient that I am satisfied that the allegations of conspiracy are not incapable of proof. I am satisfied of that.

(d) Breach of Contract Claims

[159] The defendants submit that paragraphs 1(g), (h), (s), 149, 151-153, and 161–163 of the amended claim should be struck for failing to plead material facts that support the breach of contract and inducing breach of contract claims.

[160] On my reading, those paragraphs do not fall afoul of the rules of pleading. The gist of the paragraphs is to allege that HMI Ned owed obligations to Vale and that the defendants caused HMI Ned to be dissolved, thereby depriving Vale of its ability to enforce the obligations that HMI Ned owed it. In that respect, the defendants have either breached the contract they had with Vale or induced others to breach the contract other defendants had with Vale.

[161] Given that the claim is based on allegations of secretive conduct by the defendants, it is difficult to see how the plaintiff could plead anything more than it has.

[162] It is worth bearing in mind that the purpose of the Rules is to facilitate the fair and efficient adjudication of claims on their merits; not to prevent the adjudication of claims by interpreting the rules of pleading so strictly that they are impossible to comply with.

(e) Guatemalan Law Claims

[163] The Non-Signing Defendants submit that paragraphs 1(n), 189, 190, 194, 195, 196, and 202 of the amended claim should be struck out. They refer to these as the new “Guatemala Claims.” The defendants submit that these paragraphs should be struck because Vale has provided no particulars about the specific acts or omissions of the Non-Tolling Defendants that, according to Vale, constituted a breach of Guatemalan law.

[164] Once again, I read the amended claim differently. The paragraphs that the defendants impugn are preceded by the following headings:

The Asset Transfer Scheme is Void as it was an Unlawful Simulation or Conveyance under Guatemalan Law

The Asset Transfer Scheme and the Production Scheme Were Each Breaches of the Signing Defendants’ Duties to Perform their Obligations in Good Faith

The Defendants are Liable for the Damages Caused by CGN and ProNiCo as They Acted in Abuse of Right

[165] The Asset Transfer Scheme and the Production Scheme are detailed earlier on in the statement of claim. On my reading of the amended claim, it clearly alleges that the conduct described earlier on in the amended claim amounted to a breach of Guatemalan law in several respects. Earlier paragraphs set out the material facts associated with each of the alleged schemes. The impugned paragraphs simply set out the elements of Guatemalan law which Vale alleges should be applied to the material facts set out earlier in the claim.

VI. Rule 25.11 and Abuse of Process

[166] The defendants submit that the court has the discretion to refuse an amendment as an abuse of process[^72] and that it is an abuse of process for the plaintiff to amend its statement of claim in the face of an attack on the sustainability of the original claim. I am mindful of that discretion but decline to exercise it here for two reasons.

[167] The first reason arises out of the usual order of pleadings. Ordinarily, limitations would be pleaded as a defence in a statement of defence. The statement of defence would then be subject to a reply. Determining a limitations question before a statement of defence that actually pleads the issue has been filed puts a plaintiff at a disadvantage. When a plaintiff drafts its statement of claim, it is not necessarily aware of the material facts on which a limitations defence will be based and is under no obligation to speculate about or anticipate an opponent’s defence. The time for a plaintiff to respond to a defence is in a reply. After learning about the limitations defence in the defendants’ r. 21 factums, the plaintiff, in effect, “replied” to that defence through its amended statement of claim because it had not been given the opportunity to do so in a reply to a statement of defence.

[168] The second reason arises out of the ordinary consequence of a motion to strike. As noted earlier, one downside of such motions is that they give the plaintiff a roadmap to improve their claim either before the motion to strike is heard or after the motion to strike has been heard and leave to amend has been granted. Little turns[^73] on whether the amendment is made before the motion to strike by way of a motion for leave to amend or after the motion to strike by way of leave to amend. The practical effect is the same because there will, more often than not, be an amendment that corrects the alleged defects.

[169] In addition, the defendants submit that paragraph 147 of the amended claim in particular should be struck out as an abuse of process under r. 25.11. Paragraph, 147 alleges that:

[I]t was an implied term of the Sales Agreement and the NSR Agreement that, in the event the Fenix Smelter was transferred to a party other than CGN, each of those Agreements would be novated to the transferee of the Fenix Smelter so as to ensure the preservation of Vale’s legitimate contractual rights.

[170] In the context of a legal framework where the Supreme Court of Canada has stated that all contracts are subject to an implicit duty of good faith,[^74] the claim alleged in paragraph 147 of the amended claim is not impossible of success. While the precise scope of any duty of good faith or the precise scope of implied terms will need to be further developed, the concept that a party is prohibited from transferring assets so as to render itself unable to comply with its contractual obligations is not so far off the spectrum so as to be frivolous, vexatious or incapable of proof.

Disposition and Costs

[171] For the reasons set out above I find that it is appropriate to consider Vale’s amended claim before considering any r. 21 motion. That finding is without prejudice to the defendants ability to bring a r. 21 motion based on the amended claim should they wish to do so. These reasons shall not render any issue that the defendants raise on a r. 21 motion res judicata. I grant Vale leave to amend the statement of claim in the form attached to Vale’s motion record for leave to amend dated August 27, 2021. The defendants’ motion to declare the amended claim a nullity is dismissed but only for the practical reason that I have granted leave to amend and that there would be no point in nullifying the amended claim only to have Vale re-issue a new amended claim in the same form. As noted above, the proper course of action was not for Vale to have issued an amended claim but to have brought a motion seeking leave to amend.

[172] Any party seeking costs arising out of these reasons may deliver cost submissions within 14 days of the reasons being released. Any responding submissions should be delivered 10 days after that with any reply following 3 days later.

Koehnen J.

Released: 2021-11-16

COURT FILE NO.: CV-21-00659463-00CL

DATE: 2021-11-16

ONTARIO

SUPERIOR COURT OF JUSTICE

(COMMERCIAL LIST)

BETWEEN:

VALE CANADA LIMITED

Plaintiff

– and –

SOLWAY INVESTMENT GROUP LIMITED, SOLWAY INVESTMENT GROUP GMBH, SOLWAY COMMODITIES SÀRL, SOLWAY INDUSTRIES LIMITED, HMI NICKEL COÖPERATIEF U.A., COMPAÑÍA GUATEMALTECA DE NÍQUEL S.A., COMPAÑÍA PROCESADORA DE NÍQUEL DE IZABAL S.A., JANE DOE, JOHN DOE

and ABC CORPORATION

Defendants

REASONS FOR JUDGMENT

Koehnen J.

Released: 2021-11-16

[^1]: R.R.O. 1990, Reg. 194.

[^2]: [1962] O.W.N. 150 (H.C.).

[^3]: Bruce, at p. 151, citing Preston v. Turibridge Wells Opera House, [1903] 2 Ch. 323 (Ch.), at p. 325.

[^4]: 2011 ONCA 110, 104 O.R. (3d) 161.

[^5]: Thibodeau, at para. 65.

[^6]: [2004] O.J. No. 6173(sub nom. Lasalle Bank National Association v. Mundi)

[^7]: See 2004 29656 (Ont. S.C.).

[^8]: Paine Webber, at para. 2 [emphasis added].

[^9]: 2006 5135 (C.A.)

[^10]: Family Delicatessen, at para. 1.

[^11]: The motion to strike was heard on January 19, 2005, a pretrial conference was scheduled for January 27, 2005, and the trial was scheduled to begin in April 2005.

[^12]: 2011 ONCA 191, 332 D.L.R. (4th) 118.

[^13]: Copper Mesa Mining, at para. 97.

[^14]: Thelwell v. Korottchenko, 2020 ONSC 340, at para. 25; Kumar v. Heather, 2020 ONSC 6911, at paras. 11-12; Raghavan v. Bell Canada, 2011 ONSC 7486 (“Raghavan (ONSC)”), at para. 26, aff’d without reference to this issue 2012 ONCA 370, leave to appeal to SCC refused, [2012] S.C.C.A. No. 479; Brent Hillier and Maverick Paintball Inc. v. Craig (Sandy) Hutchens et al., 2012 ONSC 5988, at para. 14 (where no motion for leave was filed but an amended claim was delivered).

[^15]: PaineWebber, at para. 2; Cosentino et al. v. Dominaco Developments Inc. et al., 2010 ONSC 208, at para. 10; Riopelle v. Trucash Rewards Inc., 2014 ONSC 3414; Rooney et al. v. Woodland Park et al., 2011 ONSC 6758.

[^16]: Esguerra v. Liland Insurance Inc., 2009 68820 (S.C.), at para. 3; 1806700 Ontario Inc. v. Khan, 2018 ONSC 6364, at para. 44 (though noting at para. 46 that this issue was not argued).

[^17]: Family Delicatessen.

[^18]: Raghavan (ONSC), at para. 26 (where the motion to strike is served first); Cosentino, at paras. 16-17.

[^19]: See Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, 391 D.L.R. (4th) 43, at para. 27, citing the following earlier SCC decisions to the same effect: R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, at para. 174, cited with approval in Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, [2005] 1 S.C.R. 533, at para. 174; R. v. Hinchey, 1996 157 (SCC), [1996] 3 S.C.R. 1128, at paras. 8-9, 36; Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, at para. 40. See also R. v. Al-Enzi, 2021 ONCA 81, at para. 205.

[^20]: 2014 SCC 7, [2014] 1 S.C.R. 87.

[^21]: Riopelle v. Trucash Rewards Inc. 2014 ONSC 3414

[^22]: Riopelle, at p. 2.

[^23]: See for example Rooney, where the plaintiff served several successive amended claims (although not 15) in the face of motions to strike which the court struck out without prejudice to the plaintiff’s right to bring a motion for leave to amend.

[^24]: 2008 39608 (Ont. S.C.).

[^25]: Great Canadian Gaming, at para. 11.

[^26]: 2016 SKQB 391, 97 C.P.C. (7th) 396, at para. 50.

[^27]: Khan, at para. 45.

[^28]: 2017 ONCA 42, 135 O.R. (3d) 681.

[^29]: State Farm Fire, at para. 25 [citations omitted].

[^30]: Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 64295 (ON SC), 66 O.R. (3d) 74 (S.C.), at para. 21.

[^31]: Andersen Consulting v. Canada (Attorney General) (2001), 2001 8587 (ON CA), 150 O.A.C. 177 (C.A.), at para. 35.

[^32]: Jeff G. Cowan & W.A. Derry Millar, Ontario Annual Practice, 2021-2022 (Toronto: Thomson Reuters, 2021), at p. 1274.

[^33]: Spar Roofing & Metal Supplies Limited v. Glynn, 2016 ONCA 296, 401 D.L.R. (4th) 318, at para. 36.

[^34]: (2001), 2001 8620 (ON CA), 56 O.R. (3d) 768 (C.A.), at para. 20.

[^35]: Quoting from Walbaum And Walbaum v. G & R Trucking Ltd., 1983 2562 (SK CA), [1983] 2 W.W.R. 622 (Sask. C.A.), at pp. 635-636, per Bayda C.J.S.

[^36]: Clark v. Ontario (Attorney General), 2019 ONCA 311, at paras. 47-50, rev’d on other grounds 2021 SCC 18, 456 D.L.R. (4th) 361.

[^37]: Mazzuca, at para. 62.

[^38]: 1588444 Ontario Ltd., at paras. 31-32.

[^39]: 1588444 Ontario Ltd., at para. 37.

[^40]: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 50.

[^41]: McDowell v. Fortress Real Capital Inc., 2019 ONCA 71, 91 B.L.R. (5th) 181.

[^42]: The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2018 ONSC 2471, at paras. 105, 109-110, and 114, aff’d 2019 ONCA 354, 145 O.R. (3d) 759, leave to appeal refused, [2019] S.C.C.A. No. 284; Portuguese Canadian Credit Union v. CUMIS, 2010 ONSC 6107 at para. 28.

[^43]: Andersen Consulting, at para. 35.

[^44]: Dow Chemical Canada ULC v. NOVA Chemicals Corporation, 2018 ABQB 482, at paras. 1369-1371.

[^45]: Starline Entertainment Centre Inc. v. Ciccarelli (1995), 1995 7132 (ON SC), 25 O.R. (3d) 765 (Gen. Div.), at para. 82.

[^46]: Klassen v. Beausoleil, 2019 ONCA 407, 34 C.P.C. (8th) 180.

[^47]: Klassen, at paras. 27-30.

[^48]: Klassen, at para. 28.

[^49]: Klassen, at para. 30.

[^50]: Janet Walker, Castel & Walker: Canadian Conflict of Laws, 6th ed. (Toronto: LexisNexis Canada, 2005), at §7.4; Aviva Insurance v. Security National Insurance, 2017 ONSC 4924, at para. 42; Chan v. Chow, 2001 BCCA 276, 90 B.C.L.R. (3d) 222, at para. 50.

[^51]: Prince v. Atrium Property Management et al., 2021 ONSC 3318, at para. 67.

[^52]: Champoux v. Jefremova, 2021 ONCA 92, at para. 28; Atrium Property Management, at paras. 66-67.

[^53]: This allegation involves paragraphs 56, 63, 100, 102-103, and 118 of the original claim.

[^54]: See for example: Sampson & McNaughton Ltd. v. Nicholson et al., [1984] O.J. No. 3210 (H.C.), at paras. 22-27.

[^55]: Canadian Premier Life Ins. Co. v. Sears Canada Inc., 2011 ONSC 1670, at para. 19; Hughes v. Toronto-Dominion Bank, [2002] O.J. No. 2145 (S.C.), at para. 9-10; Yang (Litigation Guardian of) v. Simcoe (County), 2011 ONSC 6405, at para. 46; Ottawa-Carleton Standard Condo. Corp. No. 977 v. Soho Champagne Condominiums Inc., 2020 ONSC 605, at para. 14; Stronach v. Stronach, 2021 ONSC 3801, at para. 81.

[^56]: Sears Canada, at para. 18; Hughes, at para. 9; Ottawa-Carleton Standard Condo, at para. 14; Stronach, at para. 81.

[^57]: Sears Canada, at para. 22.

[^58]: 2011 ONSC 6405.

[^59]: Yang, at para. 46 [emphasis added] [footnotes omitted].

[^60]: 2020 ONSC 605, at para. 16.

[^61]: 2021 ONSC 3801, at paras. 82-84.

[^62]: [1984] O.J. No. 3210 (H.C.).

[^63]: (1994), 1994 7238 (ON SC), 17 O.R. (3d) 524 (Gen. Div.).

[^64]: S.O. 1992, c. 6 (as it appeared in February 1994).

[^65]: Amended Claim, paras. 2, 6, 7(d), 16, 99, 165; Nullity MR, Tab 7.

[^66]: Midland Resources Holding Ltd. v. Shtaif, 2017 ONCA 320, 135 O.R. (3d) 481, at para. 198.

[^67]: Rule 25.06(8); Ontario Consumers Home Services Inc. v. EnerCare Inc., 2014 ONSC 4154, at para. 25; Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744, 27 C.P.C. (7th) 32, at paras. 167-169, aff’d 2013 ONSC 1169 (Div. Ct.).

[^68]: J.G. Young & Son Ltd. v. TEC Park Ltd., [1999] O.J. No. 4066 (S.C.), at paras. 6-10. See also Mancinelli v. Royal Bank of Canada, 2020 ONSC 1646, at paras. 140-143.

[^69]: Balanyk v. University of Toronto, 1999 14918 (ON SC), [1999] O.J. No. 2162 (S.C.), at paras. 21-29.

[^70]: See Romagnuolo v. York (Regional Municipality) Police, [2001] O.J. No. 3537 (S.C.), at paras. 60-61.

[^71]: 2012 ONSC 399, at para. 15, leave to appeal refused, 2012 ONSC 6101 (Div. Ct.).

[^72]: Belsat Video Marketing Inc. v. Astral Communications Inc., [1998] O.J. No. 383 (Gen. Div.).

[^73]: Apart from costs which remain to be addressed here.

[^74]: Bhasin v. Hrynew, 2014 SCC 71; [2014] 3 S.C.R. 494