Court File and Parties
COURT FILE NO.: CV-20-151 (Belleville)
DATE: 20231201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
QB WELLNESS LTD., FIDELAS MATTHEWS and NEAL MATTHEWS
Plaintiffs
– and –
PETER DANAS (also known as PETER DANNA and PETER NTANAS) operating as APEX TRANSFORMATIONS and 2533274 ONTARIO INC. operating as APEX TRANSFORMATIONS AND DESIGN GROUP
Defendants
COUNSEL:
Chelsea Packman, for the Plaintiffs
Cemal Acikgoz, for the Defendants
HEARD: 27 November 2023 (in writing)
REASONS FOR DECISION
(Motion pursuant to Rule 26.01 to Amend Statement of Defence and Counterclaim)
MEW J.
[1] This case arises from a contractual dispute concerning the renovation of a building in which the plaintiff, QB Wellness Inc. (“QB Wellness”) operates a sensory deprivation flotation spa business.
[2] A trial of the issues between the parties is scheduled to commence on 4 December 2023. The case was unable to proceed on the originally scheduled trial date of 31 July 2023 because no judge was available to hear it. As presently constituted, the trial will be conducted in accordance with the summary trial procedure established by Rule 76.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (as amended).
[3] At a trial management conference on 22 November 2023, the defendants advised for the first time that they would be seeking to amend their statement of defence and counterclaim to add a counterclaim of “$100,000.00 for defamation”.
[4] The defendants’ subsequent motion to amend their pleading was brought in writing. On 28 November 2023, I informed the parties that, for written reasons to follow, the motion to amend was dismissed. These are my reasons.
Background
[5] In late 2018, the plaintiffs made contact with Peter Danas and his company, Apex Transformations (“Apex”), in connection with the proposed construction of QB Wellness, a spa business that would feature sensory deprivation flotation tanks.
[6] The plaintiffs allege that one of the reasons they were interested in having the defendants perform the construction was because of their use of a Canadian-made, green-certified product called “Dapex Build-Board”, a specialised magnesium oxide board, which was said to be highly resistant to moisture and therefore beneficial for the construction of the plaintiffs’ spa.
[7] An initial fixed-price contract was entered into by the parties on 29 October 2018 for certain construction site preparation services. Thereafter, in or about April 2019, the parties entered into a further fixed-price contract for construction of the spa and sensory deprivation float centre.
[8] Various problems arose which resulted in the plaintiffs terminating the contract in August 2019, prior to the work being completed. The plaintiffs allege that at the time the contract was terminated, the value of the work done by the defendants was approximately $50,000, whereas they had already paid the defendants $274,318.81.
Procedural History
[9] On 22 July 2020, the plaintiffs commenced an action against the defendants seeking damages for breach of contract, unjust enrichment and negligent misrepresentation. The total amount of damages claimed is $200,000, which is the upper limit of damages that can be claimed in simplified procedure actions brought under Rule 76.
[10] The defendants delivered a statement of defence and counterclaim on 2 October 2020. The counterclaim as presently framed seeks payment of an outstanding account of $95,000 and a further $45,000 plus HST, for loss of profit arising from the plaintiffs’ allegedly wrongful termination of the contract.
[11] The plaintiffs’ reply and defence to counterclaim was delivered on 9 October 2020. Accordingly, pleadings were deemed closed at that time (Rule 25.05).
[12] The defendants’ affidavit of documents was delivered in July 2021 following several requests from the plaintiffs. Mr. Danas was examined for discovery on 5 August 2021.
[13] Chasing letters were sent by the plaintiffs to the defendants seeking compliance with outstanding undertakings, and a motion to compel answers was threatened by the plaintiffs. However, in the meantime, despite the defendants’ outstanding undertakings, the plaintiffs served and filed a trial record on 14 April 2022 (it does not appear that a notice of readiness for pre-trial conference, which is the means of setting down simplified procedure matters, was used).
[14] A civil trial management conference was conducted by Muszynski J. on 11 August 2022 at which a timetabling order was made, elements of which included:
a. Supplemental affidavits of documents to be exchanged by 14 November 2022.
b. Defendants to serve an accounting report by 23 January 2023.
c. Pre-trial on 27 April 2023.
d. Trial affidavits to be exchanged by 30 June 2023.
e. Trial on 31 July 2023 for one week.
[15] On 20 January 2023, the lawyers representing the defendants brought a motion to be removed as lawyers of record. An order to that effect was made on 31 January 2023.
[16] On 24 March 2023, a lawyer who was not ultimately retained by the defendants advised the plaintiffs’ lawyer that Mr. Danas was in hospital. A further communication on 31 March advised that Mr. Danas was in hospital and was undergoing treatment after suffering a heart attack.
[17] The day before the scheduled pre-trial, the defendants still not having appointed a new lawyer, Mr. Danas emailed the court requesting an adjournment of the trial. He wrote:
I have suffered two heart attacks just recently. I am in a really disabled situation and in no condition to proceed at this time. I am currently continuing with various treatments. I wish to respectfully request your consent to postpone the trial at this time. Perhaps a future schedule of a Pre Trial conference could be set up to consider the status of my condition at a later date. At this time I am not in a position to proceed.
[18] On 27 April 2023, approximately ten minutes before the start of the scheduled pre-trial, Mr. Danas sent an email to the court and counsel for the plaintiffs. He attached a medical discharge form showing that he had been discharged from hospital on 24 March 2023. The discharge order provided for activity “as tolerated” and suggested a follow-up with a family physician in 7-10 days. Mr. Danas requested that the pre-trial be adjourned for 6 months, at which time he could provide a status update on his health. The pre-trial judge, Kershman J., noted that the plaintiffs had brought a motion to strike the statement of defence and counterclaim, returnable on 6 June 2023, because of the defendants’ failure to appoint new lawyers or otherwise comply with the order removing the defendants’ previous lawyers from the record. Justice Kershman rejected the defendants’ request for an adjournment and ordered the matter to proceed to a trial management conference on 26 May 2023. He also directed that the motion to strike should proceed as scheduled. The defendants were ordered to pay costs of $1,000 to the plaintiffs within 75 days.
[19] At the trial management conference on 26 May 2023, Cemal Acikgoz attended on behalf of the defendants. He had not yet been retained as the defendants’ lawyer. When Mr. Acikgoz subsequently confirmed that he had been retained, the plaintiffs agreed to adjourn the hearing of the motion to strike until 4 July 2023.
[20] The defendants did not deliver their trial affidavits by 30 June 2023, as required by the timetabling order. Nor did counsel for the defendants appear for the return of the motion to strike on 4 July 2023. Jensen J. made the following endorsement on 4 July 2023:
This was a motion to strike the Statement of Claim and to dismiss the Counterclaim based on the Defendants’ failure to comply with the order of Kershman J. The trial is set for July 31, 2023. Counsel for the Plaintiffs indicated that she has been in touch with counsel for the Defendants who has repeatedly promised to deliver the affidavits required by the timetable set by Justice Muszynski, and yet has failed to deliver them. He was informed about today's motion and indicated that he would not attend. That is not an appropriate response.
Given that the Defendants have in fact, retained counsel as ordered by Kershman J., I declined to render judgment on the motion today. However, the Defendants’ dilatory and casual response to this litigation cannot continue. I am adjourning this matter to Monday, July 10 at 9:15 am on a peremptory basis. If counsel for the Defendants fails to appear, there will be consequences.
Furthermore, given the failure of the Defendants or counsel to appear on this motion, I have ordered costs on a substantial indemnity basis against the Defendants for Plaintiff counsel's preparation and attendance at the motion today. The Defendants are ordered to pay $647.83 in costs to the Plaintiff's counsel.
[21] On 12 July 2023, counsel for the plaintiffs wrote to the court and to the defendants advising that the defendants’ lawyer had told her that he had lost contact with his client and was unable to obtain instructions to agree to a trial timetable.
[22] On 14 July 2023, the plaintiffs delivered a trial timetable which reflected that, as a result of having lost contact with his clients, “counsel for the Defendants was unable to confirm who he intended to cross-examine or provide estimates as to anticipated time at trial”.
[23] On 26 July 2023, a case conference was held with Hurley J. By this time Mr. Acikgoz had reportedly re-established contact with his clients.
[24] A revised detailed trial schedule was delivered by the plaintiffs on 28 July. Unfortunately, on the same day the parties were advised by the court that the trial would not be proceeding as scheduled on 31 July 2023 due to a lack of available judges.
[25] On 4 August 2023, another case conference was held with Hurley J. to discuss setting a new trial date. The trial co-ordinator subsequently established that the trial would commence on a fixed date of 4 December 2023.
[26] The defendants have not yet paid the outstanding costs awards against them, totalling $1,647.83.
[27] At no time prior to 22 November 2023 was there any discussion, either in court or between counsel, concerning the defendants’ desire to amend their pleading.
[28] On 22 November 2023, as the assigned trial judge, I conducted a trial management conference with counsel by Zoom videoconference. At that time, counsel for the defendants informed the court that he had instructions to bring a motion to amend the defendants’ statement of claim and counterclaim. This was the first notice of a possible motion to amend that either the plaintiffs or the court had received. A draft amended pleading was not yet available. Counsel said that the motion would be brought at the commencement of trial.
[29] I directed counsel for the defendants to provide counsel for the plaintiffs with a draft amended statement of defence and counterclaim within 24 hours, and for counsel for the plaintiffs to thereafter advise whether the proposed amendments would be consented to.
[30] A further trial management conference took place on 24 November. Although the defendants had still not provided a draft amended pleading, Mr. Acikgoz had described the proposed amendments in an email to the plaintiffs’ lawyer. Ms. Packman, for the plaintiffs, advised that her clients would not consent to the proposed amendments, and that the motion to amend would be opposed on the grounds that the proposed amendments would cause her clients prejudice which could not be compensated for by costs or an adjournment.
[31] I rejected the defendants’ renewed suggestion that the hearing of the motion to amend should take place at the opening of trial, stating that:
While the motion to amend could, theoretically, be heard at the commencement of trial, it would not, in my view, be in the overall interests of justice to do so. The parties may be put in the position of having to needlessly prepare for the second time for a trial, only for the trial to once again be adjourned if the amendments are granted. A late adjournment would also likely result in scarce court resources being wasted.
[32] A similar approach was taken by D.A. Wilson J. in Avedian v. Enbridge Gas Distribution Inc., 2022 ONSC 3343, at para. 29:
Leaving a proposed amendment for the decision of the trial judge when it is known in advance of the trial that the amendment will be opposed makes little practical sense. It requires parties to prepare for trial, incur significant expense while no-one knows whether the amendment will be allowed. Counsel do not know the evidence that will be necessary for trial and consequently, it is unclear how long the trial will last or what evidence will be necessary. In most cases, if an amendment is granted at trial, the trial will be adjourned to allow the responding party to take further steps to properly prepare for trial. This results in a waste of counsel’s time and of court time and further delay is encountered when the new trial date is selected.
[33] I directed that the motion to amend would be considered by an attenuated process which required motion material to be delivered on an expedited schedule. I indicated that the motion would be dealt with in writing unless, following review of the written material filed, I deemed it necessary to receive oral submissions.
[34] The parties’ written motion materials were received by the court on 27 November and I released my decision (with reasons to follow) the next day.
The Defendants’ Proposed Amendments
[35] The defendants propose to add a claim for damages for defamation to their existing counterclaim. They wish to allege that the plaintiffs made false and defamatory statements about the defendants to the police, which led to Mr. Danas being criminally charged (charges were subsequently withdrawn by the Crown) and that there were numerous social media postings made, or instigated, by the plaintiffs, which conveyed false, malicious and defamatory statements about the defendants.
[36] The defendants’ proposed amendments allege that, as a result of the plaintiffs’ actions, their businesses and reputations have been severely damaged. They also wish to allege that the heart attack which Peter Danas had in March 2023 was caused by the plaintiffs’ “malicious slanderous and defamatory claims”.
[37] In addition to damages of $100,000 for defamation, the defendants propose to seek a declaration that the plaintiffs’ statements were false, defamatory and damaging to the defendant’s reputation (the draft pleading does not indicate which defendant, but I assume it is meant to be Mr. Danas), and an injunction restraining the plaintiffs from making any further defamatory statements about the defendants on any social media platform.
[38] In his affidavit in support of the motion, Mr. Danas states that:
a. Following the breakdown of the parties’ business relationship in or around August 2019, rather than treating the business dispute as a civil matter, Neal Matthews initiated a campaign to prosecute him by leveraging his connections, leading to Mr. Danas receiving a visit from the Ontario Provincial Police in September 2019 to question him.
b. On or about 14 February 2022, a complaint against him alleging multiple offences was lodged with the police, resulting in criminal charges, which were ultimately withdrawn by the Crown in August 2022.
c. The “defendant by counterclaim” (presumably Mr. Matthews) started a smear campaign against the defendants through social media platforms, by making false and damaging allegations, including portraying Mr. Danas as a predator contractor who victimised women, and by posting pictures of Mr. Danas.
d. A Facebook group was started by the plaintiffs titled "Defrauded by Building/Contractor", containing numerous “slanderous and defamatory statements” against the defendants, often using fake names but repeating the same pattern of harmful statements.
e. The plaintiffs contacted multiple professional associations of which Apex is a member and communicated false information about criminal charges they had instituted against Mr. Danas.
f. Multiple defamatory Google Reviews on the business sites of Dapex Drywall and Apex Transformations were posted, including fake accounts on multiple platforms using the picture of Mr. Danas.
g. The plaintiffs’ “malicious, slanderous, and defamatory claims have not only inflicted severe damage” upon Mr. Danas’ business, but have also had a significant adverse impact on his health, ultimately resulting in a heart attack in March 2023 which he firmly believes to have occurred as a direct consequence of the plaintiffs’ malicious actions.
[39] Mr. Danas has attached to his affidavit copies of “medical records and reports that comprehensively document my health condition and vividly illustrate the detrimental impact of the [plaintiffs’] actions on my physical well-being”.
[40] Mr. Danas claims in his affidavit that the impact on his health caused by the plaintiffs’ actions has hindered his ability to provide timely and clear instructions to his previous and current legal counsel, “which has delayed our efforts to bring a motion for amending my counterclaim to highlight the evolving evidence”.
[41] The affidavit of Mr. Danas also attaches screenshots of social media posts, Google Reviews, and correspondence from professional associations, which he says evidence the malicious and defamatory conduct of the plaintiffs, and the harm such conduct has caused.
The Rule
[42] Rule 26.01 provides:
General Power of Court
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.
[43] In Marks v. Ottawa (City), 2011 ONCA 248, the Court of Appeal noted, at para. 19, that although the general rule is that amendments are presumptively approved, the court has a residual right to deny amendments where appropriate.
[44] In 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, at para. 25, the Court of Appeal summarised the general principles regarding leave to amend motions:
• the rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice;
• the amendment may be permitted at any stage of the action;
• the prejudice must flow from the amendments and not from some other source;
• the non-compensable prejudice may be actual prejudice – evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a result of the amendment (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; and
• when the delay in seeking amendment is lengthy, courts will presume prejudice to the responding party and the onus to rebut the presumed prejudice lies with the moving party.
[45] As Agarwal J. recently noted in Burton v. Docker, 2023 ONSC 1974, at para. 24, there is no bright line or even a rule of thumb for how long a delay in seeking an amendment must be before there is a presumption of prejudice. However, in Broome v. Western Assurance, 2023 ONSC 1732, Edwards R.S.J. held that it would be inappropriate to grant a motion to amend a pleading adding a claim for punitive damages where the relief was sought, for all intents and purposes, “on the eve of trial”.
The Defendants’ Position
[46] The defendants argue that, given the evidence of the plaintiffs’ conduct since the commencement of this action, permitting the amendment of their pleadings, so that redress for such conduct can be sought, is not only warranted, but is essential for a fair and just resolution of this matter.
[47] The defendants concede that the plaintiffs should have ample opportunity to respond to the allegations, but that any potential prejudice caused by the proposed amendments can be adequately addressed by an adjournment or an award of costs.
The Plaintiffs’ Position
[48] The plaintiffs’ position is that the amendments will cause non-compensable prejudice, and that the amendments fail to plead particulars, are non-meritorious, time-barred and constitute an abuse of process. They point to the history of the defendants’ attempts to delay this matter and invite the court to assume that the pattern will continue.
[49] If the amendments were permitted, the plaintiffs contemplate the need for them to deliver a reply and defence to counterclaim in response to the amended pleading, and that further oral and documentary discovery would be required. The trial of the action would be delayed for an indeterminate time. No adequate excuse for the delay in seeking these amendments has been offered, nor has any evidence been adduced by the defendants to rebut the presumed prejudice beyond the bald assertion that the potential prejudice could be addressed through an appropriate award of costs.
Discussion
[50] There are several reasons why the motion to amend should be denied.
Delay in Bringing the Motion
[51] Even allowing for the fact that the defendants were unrepresented for several months, no adequate explanation has been offered for the delay in bringing this motion. It will be recalled that this matter was scheduled to go to trial on 30 July 2023. At a case conference with Hurley J. on 26 July 2023, there was no mention of an amendment. Nor was it mentioned on 4 August 2023, at a case conference convened to discuss a new trial date. The first mention of the proposed amendments was on 22 November 2023.
[52] The defendants’ explanation for the delay, to quote from the affidavit of Mr. Danas, is that the plaintiffs’ actions have “left me in a deplorable state, characterized not only by financial losses and damage to my reputation but also by a marked decline in my morale and self-esteem” and that “[i]t has hindered my ability to provide timely and clear instructions to my previous and current legal counsel, which has delayed our efforts to bring a motion for amending my counterclaim to highlight the evolving evidence”.
[53] There is evidence that Mr. Danas was hospitalised in March 2023 with heart problems, and that he was discharged on 24 March, able to engage in activity “as tolerated” with a recommendation to follow up with his family doctor. However, there is nothing in the medical documentation provided to suggest any causal link between Mr. Danas’ ailments and the plaintiffs’ conduct, and nothing to support his assertion that his ability to manage his affairs generally, or, more specifically, instruct his previous and current lawyers, has been impeded. In the absence of better evidence, his request for a six month adjournment of the pre-trial was excessive.
[54] Furthermore, the main events that Mr. Danas points to in support of the claims the defendants now wish to pursue occurred between 2019 (complaints to trade and professional organisations) and 2022 (laying and withdrawal of charges).
[55] Although the antiquity of this action is not as great as in some of the cases that counsel for the plaintiffs referred me to, the defendants’ motion is very much an “eve of trial” circumstance where, despite the passage of a number of months in which the motion could have been brought, the defendants have left it to the last minute to bring their motion, without having given an acceptable explanation. That alone would be a sufficient basis to reject the motion.
The Amendments Would Materially Alter the Nature of the Trial
[56] The existing statement of defence does make reference to the plaintiffs allegedly attending at Apex’s place of business a few days after termination of the contracts (i.e., August 2019) and telling staff that the defendants were “a bunch of crooks” and “thieves” and threatening to “let everyone in town what [sic] type of crooks and thieves you are" and to the plaintiffs falsely reporting the defendants to the police and making groundless complaints to an industry association. These allegations appear to be pleaded in relation to their breach of contract claims.
[57] However, the proposed amendments seek to graft a defamation case onto what otherwise appears to be a relatively straightforward dispute over a building contract, which is ready for trial. The factual framework of the case and the evidence that would have to be called would be materially altered. That, too, could be a sufficient basis for denying the defendants’ motion: Avedian v. Enbridge Gas Distribution Inc., 2023 ONCA 289, at paras. 5 and 7.
The Amendments Will Result in Further Delay
[58] The plaintiffs point out that the defendants have already indicated a need for additional documentary and oral discovery. The plaintiffs would need to deliver a pleading to respond to the amended statement of defence and counterclaim. If past history is a guide, there would be delays arising from a lack of timely delivery of undertakings by the defendants. As the plaintiffs state in their factum:
With all of these steps that will be prolonged by the Defendants, there is no reasonable timeline wherein this matter can be set down for trial if the Court allows the Proposed Amendments.
[59] I agree with that submission. Although most delays can be compensated for by an award of costs, consideration should also be given to the fact that this is a simplified procedure case. As I explain below, when the impact of delay is considered in conjunction with the underlying rationale for the simplified procedure, the reasons for declining to allow the amendments sought become a lot more compelling.
The Amendments Could Undermine the Parties’ Choice of Procedure
[60] The plaintiffs limited their claim to the relief permitted under Rule 76, despite appearing to have grounds to claim more. And the defendants have hitherto taken no issue with the application of the simplified procedure.
[61] Because this is a simplified procedure case, originally scheduled for trial at the end of July 2023, the trial record, consisting of pleadings, orders, trial affidavits (which form the basis of those witnesses’ evidence in chief) and exhibits, consisting of some 809 pages, was filed as long ago as 24 July 2023 (replacing an earlier-filed trial record). The detailed trial schedule filed by counsel anticipates requiring 19 hours and 15 minutes of the court’s time (excluding pre-reading time) to hear the trial. Rule 76.10(2) limits the total trial duration in a simplified procedure matter to five days, including opening statements, presentation of evidence, cross-examination, re-examination, and oral argument for all parties (Rule 76.10(2)). Given that the typical court day includes five hours of hearing time, the total number of hours for the trial should not exceed 25 hours. Furthermore, the timetabling order of Muszynski J. expressly provided that an allowance should be made for the time required by the trial judge to pre-read the parties’ affidavits before the cross-examination of witnesses on their affidavits. There is, accordingly, very little room for manoeuvre in an already tight trial schedule.
[62] If permitted, the amendments could significantly broaden the parameters of the case to a point where the case could no longer be tried within the five-day maximum provided for under the simplified procedure.
[63] This raises what I regard as a serious access to justice issue. The parties are now well over three years into a proceeding commenced as a simplified procedure case. It is ready for trial. The purpose of the simplified procedure regime is to reduce legal costs and to enhance access to justice by making available a cheaper and more expeditious procedural regime appropriately geared to the litigation of modest claims: Garisto v. Wang (2008), 2008 ONCA 389, 91 O.R. (3d) 298 (C.A.). The potential loss of the benefits of the simplified procedure would result in prejudice of a magnitude which would also justify denying the motion, particularly when coupled with the delay that will be caused, as already described.
The Proposed Amendments Are Deficient
[64] A pleading alleging defamation must plead material facts which, if true, would support each element of the tort:
a. that the defendant spoke certain words;
b. the words spoken or the gist of them;
c. that the words referred to the claimant;
d. that the words were communicated to at least one other specific person; and
e. that the words reasonably carried a defamatory meaning.
PMC York Properties Inc. v. Sludak, 2021 ONSC 1134 (Div Ct), at para. 5; Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280, at para. 52.
[65] The draft amended statement of defence and counterclaim falls well short of this standard. It fails to identify when allegedly defamatory statements were made, on which platform they were made and by whom.
[66] At the most basic level, the draft pleading alleges that the “Defendant [by counterclaim]” did certain things (i.e., filed a complaint with the OPP alleging serious offences, started a smear campaign through social media platforms, created a “Defrauded by Building/Contractor” Facebook group, and contacted “multiple” professional associations of which Apex is a member) against the “Plaintiff [by counterclaim]” without identifying which of the three plaintiffs is alleged to have done them.
[67] There is no particularisation of the words used, where publication of the words appeared, or that they reasonably carried a defamatory meaning.
[68] Furthermore, some of the allegations made are demonstrably true and incapable of being defamatory. Mr. Danas was, for example, charged by the police, albeit that the charges were subsequently withdrawn.
[69] In sum, the situation in the present case bears many similarities to those in Avedian, where the Court of Appeal agreed with a motion judge’s conclusions that:
… the claims sought to be advanced by way of the amendments were different than the claims previously advanced in the action and materially altered the factual framework and the evidence that would have to be called. She found that prejudice to the defendants could be presumed from the delay in the amendments being sought given the current state of the action, that is, it being ostensibly ready for trial. Further, the motion judge questioned whether these new claims had a proper legal foundation.
The Limitation Issue
[70] Another basis for declining the amendments would be if the proposed new claims are statute-barred. There are grounds for believing that some of the facts pleaded by the defendants were known to them more than two years prior to the motion to amend being brought and, hence, barred by section 4 of the Limitations Act, S.O. 2002, c. 24, Sched. B. Given that there are sufficient other grounds for refusing the amendments, I do not need to decide that issue on this motion. However, to the extent that there is an evidentiary contest on the issue of discoverability which could not have been resolved at the motion stage, the plaintiffs would be at liberty to plead a limitation defence to the counterclaim, and limitation would become yet another issue to be tried, thereby further expanding the trial agenda.
Disposition
[71] For the foregoing reasons, the motion to amend is dismissed.
[72] If the defendants genuinely want to pursue a defamation claim arising from things that have happened since the contractual dispute arose, they are at liberty to do so in a separate proceeding (subject, of course, to such defences as the plaintiffs may raise, including limitation).
[73] Barring further order of the court, the trial will proceed as scheduled on 4 December 2023.
[74] I am presumptively of the view that the plaintiffs should receive costs of the defendants’ unsuccessful motion to amend. Although I have not addressed the plaintiffs’ arguments concerning abuse of process in my decision on the substantive motion (having found other grounds for denying the motion), I am prepared to give further consideration to those arguments when determining the scale and quantum of costs.
[75] If counsel are unable to agree on costs, the issue can be discussed at the commencement of trial.
Mew J.
Released: 1 December 2023