Court File and Parties

COURT FILE NO.: CV-20-00647320-0000 DATE: 2024-07-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: QUAMRUL HUDA, EVA HUDA, WASIUL HUDA, and 2385844 ONTARIO INC. AND: FIRST GLOBAL DATA LTD., GLOBAL BIOENERGY RESOURCES INC., GLOBALBIOENERGY RESOURCE SAS, also known as GLOBAL BIOENERGY SAS, also known as GLOBAL BIOENERGY RESOURCES SAS, also known as GLOBAL BIORESOURCES SAS, also known as GLOBAL BIO ENERGY SAS, NAYEEM ALLI, MAURICE AZIZ, HARISH KUMAR BAJAJ, SHANKAR THIVIYANAYAGAM, MICHAEL FAILLE, ANIL B. SAXENA, ANDRE ITWARU, PAUL JAMES, BIOCLEAN CANADA INC., MARTIN GRENIER, ADRIANA SHAW also known as ADRIANA RIOS GARCIA, BIOMINERALS PHARMA CORP. and AM RESOURCES CORP.

BEFORE: Merritt J.

COUNSEL: Craig Aitken, Counsel for the Plaintiffs Sara Erskine and William McLennan, Counsel for the Defendants

HEARD: May 27 and 29, 2024

Amended Endorsement

Please note that paragraph 81 was added on July 24, 2024

OVERVIEW

[1] The Plaintiffs Quamrul Huda, Eva Huda, Wasiul Huda and 2385844 Ontario Inc. seek leave to amend their claim.

[2] The Defendants Global Bioenergy Resource SAS (“GBRSAS”), Biominerales Pharma Corp. (“Biominerales”), AM Resources Corp. (“AM Resources”), Adriana Shaw (“Ms. Shaw”), Martin Grenier (Mr. Grenier”) and Bioclean Canada Inc. (“Bioclean”) (collectively, the “GBRSAS Defendants”) oppose the motion.

DECISION

[3] The Plaintiffs are granted leave to amend their claim in accordance with the reasons set out below. The Defendants may deliver an amended Statement of Defence in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) and conduct further discoveries, if so advised.

BACKGROUND FACTS

[4] The Plaintiffs claim damages for civil fraud, fraudulent misrepresentation, conspiracy, and breach of fiduciary duty, or alternatively negligence and/or negligent misrepresentation against all Defendants.

[5] The Plaintiffs claim breach of contract against the corporate Defendants Global Bioenergy Resources Inc. (“GBR”), GBRSAS, Bioclean, Biominerales, AM Resources and First Global Data Ltd. (“FGD”) only.

[6] In the alternative, the Plaintiffs claim knowing assistance or knowing receipt against GBR, GBRSAS, Bioclean and FGD.

[7] The Plaintiffs claim a tracing order and an order that the Defendants hold their assets in trust for the Plaintiffs.

[8] The Plaintiffs also claim damages for mental and emotional distress and punitive damages against all Defendants.

[9] All Defendants defended the action except for Nayeem Alli (“Mr. Alli”), who was noted in default, and the two companies that are defunct: GBR and FGD. The Plaintiffs discontinued the claim against Michel Faille (“Mr. Faille”) on March 10, 2021.

[10] Some of the Defendants had crossclaims for contribution and indemnity.

[11] Maurice Aziz (“Mr. Aziz”) had crossclaims against Bioclean, Mr. Grenier, Ms. Shaw, Biominerales and AM Resources. As set out below, Mr. Aziz is a Settling Defendant and has agreed to discontinue his crossclaims.

[12] The GBRSAS Defendants had crossclaims against FGD, Mr. Aziz, Harish Kumar Bajaj (“Mr. Bajaj”), Shankar Thiviyanayagam (“Mr. Thiviyanayagam”), Mr. Faille, Anil Saxena (“Mr. Saxena”), Andre Itwaru (“Mr. Itwaru”) and Paul James (“Mr. James”). These crossclaims were for contribution and indemnity under the common law and in equity. The GBRSAS Defendants plead and rely on the provisions of the Negligence Act, R.S.O. 1990, c. N.1.

[13] Shortly before trial, the Plaintiffs entered into separate Pierrenger settlement agreements with Mr. James, Mr. Saxena, Mr. Itwaru and an agreement with both Mr. Aziz and Mr. Alli (collectively, the “Settling Defendants”).

[14] I refer to the remaining Defendants who have not entered into settlements with the Plaintiffs collectively as the “Non-Settling Defendants”.

[15] The trial of this action was scheduled for May 21, 2024. On the first day of trial counsel advised the court that a settlement had been reached between the Plaintiffs and the Settling Defendants subject to court approval of the Pierrenger agreements. The Plaintiffs sought an order discontinuing their claims against the Settling Defendants, an amendment to their pleadings and related relief. The Plaintiffs sought to have the crossclaims of the GBRSAS Defendants dismissed as against Mr. Aziz, Mr. Saxena, Mr. Itwaru and Mr. James.

[16] The intended effect of the Pierrenger settlements is that each of the Non-Settling Defendants will be responsible for their own several liability and their joint liability with the other Non-Settling Defendants.

[17] The Pierrenger agreements were disclosed immediately as required by Skymark Finance Corporation v. Ontario, 2023 ONCA 234, 166 O.R. (3d) 131, and Avedian v. Enbridge Gas Distribution, 2024 ONSC 2376.

[18] The Settling Defendants supported the motion for approval of the Pierrenger agreements and related relief.

[19] The GBRSAS Defendants, who are among the Non-Settling Defendants and who will remain in the action, could not advise whether they opposed the motion for court approval of the Pierrenger agreements because the Plaintiffs had not provided a draft of the amendments that they intended to make to their claim to give effect to the Pierrenger agreements. I therefore adjourned the trial until May 27, 2024, to afford the Plaintiffs an opportunity to do so.

[20] On May 27, 2024, I heard argument on the motion for approval of the Pierrenger agreements. During the course of oral submissions, it became apparent that the parties were close to reaching an agreement. I therefore granted a further adjournment until May 29, 2024, to afford them an opportunity to reach an agreement on the motion for approval of the Pierrenger agreements.

[21] On Wednesday May 29, 2024, I issued an order, on consent of the parties, approving of the Pierrenger agreements, dismissing the claims against, and the crossclaims by and against, the Settling Defendants, and amending the claim in accordance with the Third Amended Statement of Claim attached as Schedule A to the order. The order contains a claims bar and other terms related to the conduct of the trial. I refer to the Third Amended Statement of Claim as the “Current Pleading”.

[22] On May 27, 2024, the Plaintiffs also brought a motion to amend their claim in accordance with a draft Third Fresh as Amended Statement of Claim, which contained amendments beyond those necessary to implement the Pierrenger agreements (the “Proposed Amendments”). The GBRSAS Defendants do not consent to the Plaintiffs’ motion to amend their claim in accordance with the Proposed Amendments. It was obvious that if I granted leave to make any of the amendments, the Defendants would require time to consider their position, file an amended Statement of Defence and possibly conduct further discoveries. Therefore, I adjourned the trial and heard the motion for leave to amend the claim in accordance with the Proposed Amendments.

POSITIONS OF THE PARTIES

[23] The Plaintiffs say that leave must be granted to amend their claim as there is no non-compensable prejudice. They say that the material facts relating to the causes of action and relief claimed are already pled in the Current Pleading.

[24] The GBRSAS Defendants say that the Proposed Amendments are prejudicial because they raise new causes of action for which the limitation periods have expired.

THE ISSUES

(1) Do the Proposed Amendments assert new causes of action which are statute barred or do they seek alternate relief or a different legal conclusion based on material facts that already form part of the Current Pleading? (2) Is there other non-compensable prejudice to the Defendants?

ANALYSIS

[25] Rule 26.01 of the Rules provides: “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.”

[26] Prejudice may be presumed when there is an extremely long delay and the justification is inadequate or where a limitation period has expired. The onus is on the moving party to rebut presumed prejudice, while the onus is on the responding party to prove actual prejudice: ID Inc. v. Toronto Wholesale Produce Association, 2024 ONSC 158, 48 B.L.R. (6th) 276, at para. 40.

[27] The expiry of a limitation period creates non-compensable prejudice. Amendments that raise new causes of action after the expiry of the applicable limitation periods are statute barred: Klassen v. Beausoleil, 2019 ONCA 407, 34 C.P.C. (8th) 180, at paras. 26-27.

[28] A new cause of action is not asserted where the amendment: (1) pleads an alternative claim for relief arising out of the same facts previously pleaded and no new facts are relied on; (2) amounts to different legal conclusions from the same set of facts; (3) provides particulars of an allegation already pleaded; (4) provides additional facts on which the original right of action is based; (5) does not alter the nature of the claim; or (6) arises from the core factual nexus as the facts and circumstances become clearer and mature. See Bank of Montreal v. Morris et. al., 2013 ONSC 2884, at para. 46.

[29] The GBRSAS Defendants say the Proposed Amendments raise new causes of action.

[30] Before the Pierrenger settlements, there were five corporate Defendants and ten individual Defendants. The Plaintiffs have settled with five individual Defendants, and of the remaining five, one cannot be located and the action against him has been discontinued (Mr. Faille), one has been noted in default (Mr. Thiviyanayagam) and one is bankrupt (Mr. Bajaj), leaving Mr. Grenier and Ms. Shaw as the remaining individual Defendants.

[31] The Current Pleading pleads fraud, fraudulent misrepresentation, negligent misrepresentation, breach of fiduciary duty, negligence, and conspiracy against all Defendants. The Current Pleading pleads breach of contract, knowing assistance and knowing receipt against the corporate Defendants only.

[32] To a large extent, the Current Pleading contains general allegations without specifying exactly which Defendant did what. The Defendants did not move for particulars. The Plaintiffs say that they have discovered more facts as the action has matured.

[33] The Current Pleading includes the following facts: (1) The Plaintiffs invested funds and were told that if they invested with the Defendants, their investment funds would be used to obtain profits through mining operations in Colombia. The Plaintiffs were told that their investment funds would never decline in value, would pay a guaranteed rate of interest, and could be redeemed at any time. The Plaintiffs were told that the Defendants were registered with the Ontario Securities Commission and its equivalent in Quebec (collectively, the “OSC”) and they were not (at paras. 1, 4, and 71). (2) The Defendants Mr. Grenier, Mr. Faille, and Ms. Shaw solicited funds, prepared advertising and marketing materials to do so, and met with investors such as the Plaintiffs. The sums they collected from the Plaintiffs were eventually funneled through various corporations (at paras. 6, 57, 62, and 64-65). (3) The Defendants used similar and confusing corporate names to disguise their actions, limit their liability and facilitate the individual Defendants funneling money between the corporations as part of the fraud against the Plaintiffs (at para. 6). (4) The individual Defendants participated in the fraud by making misrepresentations about the investment, failing to disclose that the funds would be transferred between the corporate Defendants, using the funds for personal use and failing to return the investment funds (at paras. 71-73). (5) The individual Defendants met with the Plaintiffs and made misrepresentations or authorized others to do so and make representations on their behalf. Each individual Defendant was an agent, employee, servant, director, owner or dependent or independent contractor for each of the corporate Defendants (at para. 73). (6) The individual Defendants knew or ought to have known that the funds raised had been directed towards coal mining projects in respect of which GBRSAS had no asset or ownership interest, no assets have been pledged as security, and interest payments were not made a promised (at para. 81). (7) The Defendants owed fiduciary duties to the Plaintiffs, breached their fiduciary duties by failing to disclose the profits diverted to themselves, failed to disclose they were not registered with the OSC, and failed to explain the diminishment of the principal (at paras. 115-117). (8) All of the Defendants engaged in a conspiracy. They engaged in unlawful conduct to mislead the Plaintiffs into investing while they knew or ought to have known that the investments would never be returned. The Plaintiffs’ investments were transferred through the various corporate and individual Defendants and ultimately not used for mining operations in Colombia. The Defendants failed to disclose the corporate transfers, failed to provide information as to the financial status of the corporate Defendants or the investments, and failed to account for and properly deposit cash transactions (at paras. 120-123).

Breach of Contract

[34] The Proposed Amendments assert breach of contract as against Mr. Bajaj, Mr. Thiviyanayagam, Mr. Faille, Mr. Grenier, and Ms. Shaw, as well as various corporate Defendants.

[35] The Current Pleading specifically claims breach of contract “solely against the corporate defendants”.

[36] The amendments plead new material facts for a new contract and a breach of contract claim against Mr. Grenier and Ms. Shaw.

[37] The breach of contract claims against the individual Defendants raise a new cause of action based on facts that were not previously pled. The Plaintiffs do not suggest that they were not aware, from the outset, with whom they contracted, which would have delayed the running of the limitation period. These claims are therefore statute barred and create non-compensable prejudice.

[38] Leave to make these amendments alleging breach of contract against the individual Defendants is denied.

Knowing Assistance and Knowing Receipt

[39] The Proposed Amendments assert claims for knowing assistance and knowing receipt, breach of trust, and breach of fiduciary duty as against the individual Defendants and various corporate Defendants. The GBRSAS Defendants object on the basis that the Current Pleading specifically claimed knowing assistance and knowing receipt “solely against the corporate defendants”.

[40] Knowing assistance is a mechanism for imposing liability on those who participate in a breach of trust by a fiduciary because of their lack of honesty: Quantum Dealer Financial Corporation v. Toronto Fine Cars and Leasing Inc., 2023 ONCA 256, 481 D.L.R. (4th) 137, at para. 49, quoting Paciocco J.A. in Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional v. Garcia, 2020 ONCA 412, 151 O.R. (3d) 529, at paras. 31-32.

[41] The elements of knowing assistance are: (1) a fiduciary duty; (2) a fraudulent and dishonest breach of the duty by the fiduciary; (3) actual knowledge by the stranger to the fiduciary relationship of both the fiduciary relationship and the fiduciary’s fraudulent and dishonest conduct; and (4) participation by or assistance of the stranger in the fiduciary’s fraudulent and dishonest conduct. See DBDC Spadina Ltd. v. Walton, 2018 ONCA 60, 419 D.L.R. (4th) 409, at para. 211, per van Rensburg J.A., in a dissenting opinion adopted by the Supreme Court of Canada as its reasons on appeal, 2019 SCC 30, [2019] 2 S.C.R. 530.

[42] The person who knowingly assists must have actual knowledge, be reckless, or be willfully blind to the existence of the trust or fiduciary relationship and the breach by the fiduciary that arises from the fiduciary’s wrongful conduct: Quantum Dealer Financial Corporation, at para. 50.

[43] The elements of knowing receipt are: (1) the stranger receives trust property; (2) for his or her own benefit or in his or her personal capacity; (3) with actual or constructive knowledge that the trust property is being misapplied. In addition to actual knowledge, including willful blindness or recklessness, requirement (3) can be met where the recipient, having “knowledge of facts which would put a reasonable person on inquiry, actually fails to inquire as to the possible misapplication of the trust property”: Caja Paraguaya, at para. 57.

[44] The claims of knowing assistance and knowing receipt against the individual Defendants are alternative relief or different legal conclusions based on the same facts. These amendments do not alter the fundamental nature of the claim. They arise from the core facts that the individual Defendants participated in the fraud, made the misrepresentations or authorized others to do so, participated in the dishonest breach of fiduciary duty and received, for their own use, the investment money given to the lawyer.

Misappropriation, Conversion, and Unjust Enrichment

[45] The Proposed Amendments assert claims for misappropriation, conversion, and unjust enrichment. The Current Pleading does not contain any of these claims.

[46] The claims for misappropriation, conversion and unjust enrichment are also alternative relief or different legal conclusions based on the same facts. They do not alter the nature of the claim because the Current Pleading already states that the individual Defendants improperly took, and used for themselves, the money the Plaintiffs invested.

Piercing the Corporate Veil

[47] The Proposed Amendments seek personal liability against the individual Defendants for the breach of contract claim “on the basis of lifting or piercing the corporate veil”.

[48] The GBRSAS Defendants say that while the Current Pleading make broad allegations against the Defendants en masse, that is not enough.

[49] The court will pierce the corporate veil in three circumstances: (a) when the court is construing a statute, contract or other document; (b) when the court is satisfied that a company is a “mere façade” concealing the true facts; and (c) when it can be established that the company is an authorized agent of its controllers or its members, corporate or human: Yaiguaje v. Chevron Corporation, 2018 ONCA 472, 141 O.R. (3d) 1, at para. 65, leave to appeal refused, [2018] S.C.C.A. No. 255.

[50] Further, “Where it is alleged that a corporation is a mere façade to protect its owners, the court must be satisfied that: (a) there is complete control such that the corporation is the “mere puppet” of the owner; and (b) the corporation was incorporated for a fraudulent or improper purpose or used by the owner as a shell for improper activity”: 1417217 Ontario Inc. v. River Trail Estates Inc., 2021 ONSC 4785, 158 O.R. (3d) 89, at para. 153, varied on other grounds, 2024 ONCA 491.

[51] The court will pierce the corporate veil when a company is incorporated for an illegal, fraudulent, or improper purpose or if those in control direct a wrongful thing to be done: Shoppers Drug Mart Inc. v. 64730360 Canada Inc., 2014 ONCA 85, 372 D.L.R. (4th) 90, at para. 43; Clarkson Co. v. Zhelka, [1967] 2 O.R. 565 (H.C.), at p. 578.

[52] The courts will disregard the separate legal personality of a corporate entity where it is completely dominated, controlled, and being used as a shield for fraudulent or improper conduct: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at pp. 433-34, aff’d [1997] O.J. No. 3754 (C.A.).

[53] The claim to pierce the corporate veil arises from the core factual matrix and is an alternative form of relief. The Current Pleading states that the Plaintiffs’ investment was based on fraudulent misrepresentations; the funds were unlawfully raised in breach of the Securities Act, R.S.O. 1990, c. S.5, and improperly funneled through various corporations with no assets and confusing names, all for the benefit of the individual Defendants. This is, in effect, saying that the corporate Defendants were used as a shield for fraudulent or improper conduct.

Faille as Agent for Shaw and Grenier

[54] The GBRSAS Defendants say the Proposed Amendments seek to point the finger solely at Mr. Faille for misconduct that was originally pleaded as being done by the Settling Defendants and in some cases primarily by Mr. Aziz. The amendments allege that Mr. Faille acted as an agent or broker of Ms. Shaw and Mr. Grenier and on their instructions, engaged in misconduct and misrepresentations that led to the Plaintiffs’ damages.

[55] The Plaintiffs discontinued their action against Mr. Faille.

[56] The GBRSAS Defendants say that it is not sufficient that the Current Pleading contains broad allegations that might have applied to Mr. Faille, because particulars are required when alleging fraud, misrepresentation, breach of trust, malice, or intent and therefore the amendments plead new causes of action.

[57] The Plaintiffs say that the Proposed Amendments particularize that the material misrepresentations were made by Mr. Faille and that Mr. Grenier and Ms. Shaw provided him with information. To the extent that the Proposed Amendments now plead that Mr. Faille did things which Mr. Aziz was alleged to have done in the Current Pleading, I find that this is a new cause of action. The Plaintiffs say they learned that it was Mr. Faille and not Mr. Aziz who made the misrepresentations as the action matured.

[58] I cannot determine whether these amendments are statute barred because it is not clear when the Plaintiffs discovered this information for the purposes of s. 5 of the Limitations Act 2002, S.O. 2002, c. 24, Sched. B. Therefore, in the absence of other prejudice, as set out below, I allow these amendments without prejudice to the Defendants’ right to plead that the limitation period has expired.

[59] Additionally, the GBRSAS Defendants do not consent to the Plaintiffs withdrawing their admissions that Mr. Aziz made the misrepresentations.

[60] The Plaintiffs require leave under r. 51.05 to withdraw the admissions that Mr. Aziz was the one who made misrepresentations. The test for withdrawing admissions is as follows: (1) Does the proposed amendment raise a triable issue? (2) Is there a reasonable explanation for the change in position? (3) Is there prejudice that cannot be compensated for in costs? See Szelazek Investments Ltd. v. Orzech (1996), 44 C.P.C. (3d) 102 (Ont. C.A.).

[61] If the admissions that it was Mr. Aziz who made the misrepresentations are withdrawn, there are still triable issues and there is no prejudice that cannot be compensated for in costs. However, the Plaintiffs have not provided a reasonable explanation for their change in position.

[62] The Plaintiffs’ written submissions say that the material misrepresentation was carried out by the Defendant Mr. Faille “and not Maurice Aziz, as originally but, as the action matured, as it turned out incorrectly pled”. The Plaintiffs have offered no further explanation or evidence to explain why the allegations against Mr. Aziz are incorrect or how they discovered that they are incorrect.

[63] The Plaintiffs are not granted leave to withdraw the admissions concerning misrepresentations made by Mr. Aziz.

Allegations against Roche

[64] The Proposed Amendments make new allegations against the non-party Steven Roche (“Mr. Roche”), that he acted as an agent for the GBRSAS Defendants, that his misconduct led to the Plaintiffs’ alleged damages, and that the GBRSAS Defendants are liable for his conduct. The only material fact pled against Mr. Roche in the Current Pleading is that he “provided money receipts to the plaintiff”.

[65] The Plaintiffs say the GBRSAS Defendants pled in their Statement of Defence that Mr. Roche received funds in trust and say that they learned of the particulars contained in the Proposed Amendments through the discovery process.

[66] I agree that the Proposed Amendments provide further particulars regarding the transfer of funds from Mr. Roche’s trust account; however, they go much further than that. The Proposed Amendments plead that Mr. Roche knew or was recklessly blind to the fact that some of the Settling Defendants were “marketing investments to the Colombia Project using representations that there were loans that were secured by Colombian assets under [Ms. Shaw’s] ownership or control.”

[67] The Proposed Amendments also plead that Mr. Roche transferred the Plaintiffs’ funds “in breach of trust and fiduciary duty”. They plead that he provided letters to the Plaintiffs “confirming the receipt of the funds by [Ms. Shaw’s] companies he was acting for, as well as the 4% per month rate of interest that was negotiated for in August 2013” and that he refused to provide documents to the Plaintiffs on the basis that the information was privileged.

[68] The Proposed Amendments say that Mr. Roche unlawfully misappropriated and converted the Plaintiffs’ funds for his own use and benefit and concealed the true location of the funds.

[69] Finally, the Proposed Amendments say that Mr. Roche undertook (expressly or by implication) “to act in accordance with a duty of loyalty respecting documenting and entering into an express contract setting down the terms of the Plaintiffs’ investment and security”.

[70] The Proposed Amendments raise new facts and causes of action concerning Mr. Roche, but he is not named as a defendant.

[71] These amendments advance a new theory of liability and derive from the original pleading that the Plaintiffs paid the money to Mr. Roche.

[72] In the absence of other prejudice, as set out below, I allow these amendments.

Prejudice

[73] As set out above, some of the Proposed Amendments claim alternative relief based on the same material facts as were originally pleaded and are integrally related to the existing claim. As such they do not give rise to presumed prejudice: Klassen, at para. 50.

[74] The GBRSAS Defendants say they have suffered actual prejudice because they have not pursued claims, productions and evidence from Mr. Faille and Mr. Roche.

[75] The GBRSAS Defendants did crossclaim against Mr. Faille. The Plaintiffs have discontinued the action against him because he cannot be located. I have no evidence that he would have been available had the GBRSAS Defendants sought to examine him or obtain productions from him before now. Therefore, the GBRSAS Defendants have not established actual prejudice with respect to their failure to pursue Mr. Faille for productions or examinations.

[76] I have allowed the amendments concerning Mr. Roche. It is open to them to pursue a third-party claim against him now.

[77] The Defendants also say that they have suffered actual prejudice because they have not defended and developed evidence against the allegations of misappropriation, conversion, and unjust enrichment (for example whether the alleged deprivation corresponds to the alleged enrichment), and they have not defended and developed evidence against the allegations that Mr. Grenier and Ms. Shaw personally committed the acts alleged or whether the corporate veil should be pierced. The Defendants have offered no explanation of why they cannot do these things now.

[78] I find that the Defendants have failed to establish actual prejudice.

DISPOSITION

[79] Leave is granted to the Plaintiffs to make the amendments regarding knowing assistance and knowing receipt. Leave is granted to make the amendments concerning misappropriation, conversion and unjust enrichment. Leave also is granted to make the amendments concerning piercing the corporate veil. Leave is granted to make the amendments concerning Mr. Faille acting as agent for Mr. Grenier and Ms. Shaw and the amendments relating to Mr. Roche, without prejudice to the Defendants’ right to plead that the limitation period has expired.

COSTS

[80] Costs of this motion are reserved to the trial judge.

[81] For clarity, costs of both this motion and the Defendant’s costs thrown away because of the adjournment of the trial, are reserved to the trial judge.

Merritt J. Date: July 12, 2024 Amended date: July, 24, 2024