2024 ONSC 4870
COURT FILE NO.: CV-19-00622610-0000
MOTION HEARD: 2024-07-24
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: AUTOMATED LOGIC - CANADA, LTD., plaintiff
AND:
URBAN MECHANICAL CONTRACTING LTD. and PAUL DI LUCIA, defendants
BEFORE: ASSOCIATE JUSTICE R. FRANK
COUNSEL: Fraser Mackinnon Blair for the plaintiff
Sonja Turajlich and Battista Frino for the defendants
HEARD: July 24, 2024
ENDORSEMENT
A. OVERVIEW
[1] The underlying action arises from a dispute with respect to the delivery of services and materials by the plaintiff to the defendant Urban Mechanical Contracting Ltd. (“Urban Mechanical”) under two subcontracts in connection with a construction project related to the Ashbridges Bay Maintenance/Storage Facility (the “Project”). In this motion, the plaintiff seeks the following relief:
(a) an order compelling the defendants to comply with this court’s order in this action dated November 21, 2022 and to serve a further and better affidavit of documents;
(b) an order compelling the defendants to produce the settlement agreement entered into on or around March 21, 2017 between the defendant Urban Mechanical and Pomerleau Inc. (“Pomerleau”), the general contractor for the Project, together with all the appendices thereto (the “First Settlement Agreement”);
(c) an order requiring the defendants to produce all documents in their possession, power or control in relation to all monies that were received from or deposited by or on behalf of Pomerleau in relation to the Project including, without limitation, any funds received by or deposited with Urban Mechanical in respect of the First Settlement Agreement and the further settlement agreement between Urban Mechanical and Pomerleau entered into on or about July 27, 2018 (the “Second Settlement Agreement”);
(d) an order granting the plaintiff leave to amend its statement of claim issued June 25, 2019; and
(e) a status hearing in accordance with Rule 48.14(5) approving a timetable.
[2] Prior to the hearing of the motion, the parties resolved all aspects of the motion on consent other than the issue of the proposed amendments to the statement of claim and costs of the motion.
[3] For the reasons outlined below, the plaintiff is granted leave to amend the statement of claim with respect to all of the amendments in the proposed amended statement of claim other than certain portions of paragraphs 19, 20 and 21, as outlined below.
Preliminary evidentiary issue
[4] As a preliminary matter, at the outset of the hearing of the motion, the defendants sought leave to file a responding motion record that they served on July 23, 2024, the day before the motion. Counsel for the defendants advised that the responding motion record contained a single document. Prior to the request for the late filing of the responding motion record, the defendants had asked for the plaintiff’s consent to the late filing of their responding factum, which was served on July 22, 2024. The plaintiff consented to the late filing of the responding factum but opposed the late filing of the responding motion record.
[5] I appreciate that on July 12, 2024 one of the lawyers of record for the defendants ended his association with Bisceglia & Associates Professional Corporation, the law firm representing the defendants. However, by that time, this motion had been pending for nearly three months. Further, the defendants did not provide any prior notice to the plaintiff that they would be seeking leave for the late filing of a responding motion record, and there is no evidence that the defendants had always intended to deliver a responding motion record, nor of any attempt by the defendants to deliver the record sooner, or at least concurrently with the factum.
[6] In the circumstances, I accepted the late filing of the factum, but I declined to grant leave for the late filing of the defendants’ responding motion record.
B. ISSUES
- Should the plaintiff be granted leave to amend its statement of claim to add the proposed amendments? More specifically:
(a) Do the proposed amendments plead a new cause of action?
(b) If the proposed amendments plead a new cause of action, are they statute‑barred under the Limitations Act, 2002?[^1]
C. LAW AND ANALYSIS
[7] Rule 26.01 of the Rules of Civil Procedure provides as follows:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[8] In Navigator v Owens,[^2] I summarized the applicable legal principles with respect to pleading amendments:
[19] The applicable principles with respect to amendment of a pleading are summarized in the case law as follows:
Rule 26.01 is mandatory. The court must allow the amendment unless the responding party would suffer non-compensable prejudice, the proposed pleading is scandalous, frivolous or vexatious, or the proposed pleading fails to disclose a reasonable cause of action.[^3]
On a motion to amend a claim, the court may not consider the factual or evidentiary merits of the proposed claims or whether the amending party is able to prove its amended claim. The court must assume the facts pleaded are true. The only question is whether the pleading is tenable at law and complies with the rules of pleadings.[^4]
A proposed amendment cannot assert a “new cause of action” after the expiry of the applicable limitation period.[^5] In French v. H&R Property Management Ltd., the Court of Appeal outlined the test for determining whether a pleading is a new cause of action as follows:
… there is a distinction between pleading a new cause of action and pleading new or alternative relief based on the same facts as originally pleaded. An amendment is not the assertion of a new cause of action where the “original pleading… contains all the facts necessary to support the amendments… [such that] the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded”: Dee Ferraro Ltd v. Pellizzari, 2012 ONCA 55, 346 D.L.R. (4th) 624, at paras. 4, 13-14; see also 1100997 Ontario Ltd v. North Elgin Centre Inc., 2016 ONCA 848, 409 D.L.R. (4th) 382, at paras. 20-21; Davis v. East Side Mario’s Barrie, 2018 ONCA 410, at paras. 31-32; Quality Meat Packers, at para. 65.
The relevant principle is summarized in Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 3rd ed. (Toronto: LexisNexis, 2017), at p. 186:
A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon [which] the original right of action is based.[^6]
An amendment will be refused when it seeks to advance, after the expiry of a limitation period, a “fundamentally different claim” based on facts that were not originally pleaded.[^7]
When considering whether a proposed claim asserts a new cause of action, the original statement of claim must be read generously and with some allowance for drafting deficiencies.[^8]
The expiry of a limitation period is one form of non-compensable prejudice.[^9]
The onus of proving that a proposed amendment would cause prejudice that could not be remedied either by costs or an adjournment lies with the party opposing the amendment.[^10] However, as explained by the Court of Appeal:
Where a limitation period has passed, there will be a presumption of prejudice that cannot be compensated for by costs or an adjournment. The moving party must demonstrate why, on the facts of the case, the court should not apply the normal rule that the presumption of prejudice flowing from the loss of the limitation period is determinative. This involves a consideration of special circumstances that would lead the court to conclude that the presumption of prejudice should not apply.
The statute establishing the limitation period may itself provide for relief in certain circumstances. Absent a statutory basis for relieving against the harshness of a limitation period, the court, faced with a rule 26.01 motion, will consider whether it would be unfair to allow the opposite party to rely on the limitation period given the relationship the proposed claim has to the existing and ongoing claim and the way that the action has progressed to date. The court will consider the true nature of all of the claims and the knowledge of the parties.[^11]
(i) Nature of the proposed amendments
[9] The proposed amendments seek two things. First, the amendments seek to increase the amount claimed by an amount equal to the plaintiff’s share of the settlement proceeds received by the defendant Urban Mechanical under the Second Settlement Agreement in connection with the plaintiff’s delay claim under the applicable subcontracts (the “Delay Claim”). The proposed amendments also seek an award of punitive damages based the defendants’ alleged concealment of the fact that it received a substantial settlement in respect of the claims it advanced in an arbitration relating to Project delays, including the plaintiff’s Delay Claim.
(ii) Are the proposed amendments improper pleadings of evidence?
[10] The defendants submit that the proposed amendments are improperly pleaded or are improper pleading of evidence. In oral argument, counsel for the defendants limited this assertion to the following:
(a) the opening words of proposed paragraph 19, “In the Statement of Defence filed in the within action,”;
(b) the opening words of proposed paragraph 20, “However, documentation produced by the Defendants on or about March 7, 2023 in the context of the within action revealed that, contrary to the allegations made by the Defendants in the Statement of Defence,”; and
(c) all of proposed paragraph 21, which reads as follows:
- This documentation also confirms that Urban Mechanical entered into two settlement agreements with respect to the claims that it advanced against Pomerleau and/or the TTC in relation to the Project:
(a) First, Urban Mechanical and Pomerleau entered into a settlement agreement (the “First Settlement Agreement”) that included, amongst other things, payment for “all the work performed by Automated Logic under the base contract as certified by the owner including holdbacks released to date”, being $479,015.64; and,
(b) Second, Urban Mechanical and Pomerleau entered into a second settlement agreement (the “Second Settlement Agreement”) pursuant to which Urban Mechanical received an additional and substantial payment in satisfaction of its claims made in the Arbitration.
[11] Other than the opening phrase “This documentation also confirms that”, I do not accept that the pleadings in paragraph 21 are an improper pleading of evidence or otherwise improper. In my view, that paragraph pleads material facts on which the plaintiff relies in its claim as required and permitted under Rule 25.06. However, I find that the above‑referenced portions of proposed paragraphs 19 and 20 and the phrase “This documentation also confirms that” in paragraph 21 are improper pleadings or pleadings of evidence that should be removed.
[12] Therefore, the leave I am granting to amend the statement of claim is subject to removal of the above‑referenced portions of paragraphs 19, 20 and 21 of the proposed amended statement of claim attached as Schedule “A” to the plaintiff’s notice of motion.
(iii) Are the proposed amendments pleadings of a new cause of action?
[13] The defendants submit that in the original statement of claim the plaintiff only seeks payment of its unpaid invoices with respect to the base amounts owing under the relevant subcontracts with Urban Mechanical. They assert that the proposed amendments with respect to the plaintiff’s Delay Claim plead a new cause of action that the plaintiff was aware of when the original statement of claim was issued. Relying on McConnell v Fraser,[^12] they argue that the pleading of the Delay Claim is a fundamentally different and distinct claim from the plaintiff’s claim for unpaid invoices. The defendants also submit that the Delay Claim arises from different material facts and that it would be determined based on different evidence than the claims asserted in the original statement of claim. In this regard, the defendants assert that it is evident from the applicable subcontracts that the Delay Claim arises from a different aspect of the agreements, although the defendants acknowledge that those agreements are not included in the evidence in the record before the court on this motion.[^13]
[14] The defendants concede that there are allegations in the original statement of claim with respect to Project delays and a related arbitration process. However, they assert that the allegations are vague and that they are an insufficient pleading of a cause of action for delay. In support of this submission, they argue that:
(a) the key paragraphs in the original statement of claim that detail the plaintiff’s claim, including paragraphs 1 and 11-13 of the original statement of claim, make no reference to the plaintiff’s Delay Claim; and
(b) the plaintiff failed to assert its Delay Claim even though: (i) it was aware that the Project had been delayed; (ii) it was aware of the arbitration process with respect to the Project; and (iii) it had quantified its Delay Claim and submitted that quantification to Urban Mechanical.
[15] The plaintiff submits that the proposed amendments do not allege any new causes of action against the defendants because the amendments “simply provide particulars of an allegation already pled or additional facts upon [which] the original right of action is based.”[^14] The plaintiff asserts that the amendments sought are “integral to the dealings” between the plaintiff and the defendants that has already been pled and merely “reframe the allegations of fact and provide further particulars” of the existing claims for breach of contract, unjust enrichment and breach of trust.[^15]
[16] In assessing whether a pleading asserts a new cause of action, the courts have adopted the following analysis:
The key is whether substantially all of the material facts giving rise to the “new cause of action” have previously been pleaded or whether new facts are sought to be added that are relied upon to support a new cause of action. A new cause of action is not asserted if the amendments simply plead an alternative claim for relief arising out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based. (Internal citations omitted).”[^16]
[17] In my view, the proposed amendments do not assert a fundamentally different claim than that which was originally pleaded. The original statement of claim refers to an arbitration regarding Project delays and contains allegations that Urban Mechanical had agreed to make representations in that arbitration with respect to the plaintiff’s interests. In this regard, I note that the original statement of claim includes specific allegations that:
(a) the Project experienced delays;[^17]
(b) In addition to Urban Mechanical’s representations to the plaintiff that it would claim against the general contractor, Pomerleau, for unpaid contract work, the plaintiff pleaded that Urban Mechanical “advised the Plaintiff that it would represent the Plaintiff’s interests at the arbitration and that the Plaintiff would be provided its share of the monies paid to Urban Mechanical, including the base contract amounts owed to the Plaintiff, once a decision was reached at the arbitration.”[^18]
(c) With respect to the arbitration process for the Project, “Urban Mechanical alleged that it separated its claim from the claims advanced by the general contractor, Pomerleau, to TTC and engaged with TTC directly to resolve the matter of payment for work performed by Urban Mechanical, including claims pertaining to delays caused by TTC.”[^19]
(d) At all times during the arbitration process, Urban Mechanical continuously made promises to the plaintiff that it was representing the best interests of the plaintiff, and at the very least the outstanding amounts would be paid to the plaintiff once the arbitration concluded.[^20]
[18] Reading the original statement of claim generously and with some allowance for drafting deficiencies,[^21] the pleadings referenced above contain sufficiently broad language and terms that outline a factual matrix that includes claims regarding Project delays, monies recovered by Urban Mechanical regarding such delays, and the plaintiff’s claim to an entitlement to a share of the funds paid with respect to the Project delays. In my view, the proposed amendments are sufficiently connected to the existing allegations and provide further particulars regarding the existing claims asserted against the defendants with respect to Urban Mechanical’s failures to pay the plaintiff amounts alleged to be owing in respect of the Project delays, including the plaintiff’s Delay Claim.
[19] In the result, other than the portions of paragraphs 19, 20 and 21 identified above as improper pleadings, I find that the proposed amendments “simply provide particulars of an allegation already pled or additional facts upon which the original right of action is based”[^22] and that leave should be granted to amend the statement of claim to add the proposed amendments.
(iv) Are the proposed amendments statute-barred pursuant to the Limitations Act, 2002?
[20] Even if I am incorrect and the proposed amendments assert a new cause of action, I am not prepared to find, based on the current record, that the proposed amendments are statute‑barred under the Limitations Act, 2002.
[21] Pursuant to s. 4 of the Limitations Act, 2002, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Pursuant to s. 5(1) of the Limitations Act, 2002, a claim is discovered when a claimant knew or reasonably ought to have known that: (i) the injury, loss or damage had occurred; (ii) the injury, loss or damage was caused by or contributed to by an act or omission; (iii) the act or omission was that of the person against whom the claim is made; and (iv) having regard to the nature of the injury, loss or damage, a proceeding is an appropriate means to seek to remedy it. Pursuant to s. 5(2), a person with a claim is presumed to have discovered their claim on the day that the act or omission on which the claim is based took place, unless the contrary is proved.
[22] The defendants argue that the plaintiff’s Delay Claim had clearly been discovered more than two years prior to the proposed amendments and that the plaintiff was required to have included its Delay Claim in the original statement of claim because it had sustained the injury at that time. The defendants submit that the plaintiff is merely pursuing the Delay Claim now because it believes that Urban Mechanical has sufficient funds to pay such a claim. The defendants also argue that the plaintiff has failed to rebut the presumption of discoverability as required by s. 5(2) of the Limitations Act, 2002. In this regard, the defendants submit that the evidence filed by plaintiff is insufficient because it comes from a law clerk employed by the plaintiff’s lawyers rather than directly from a representative of the plaintiff.
[23] The plaintiff takes a contrary view on discoverability and submits that the limitation period only began to run on May 7, 2023 when the defendants produced certain documents regarding the arbitration process regarding the Project. It submits that it was only through the defendants’ May 2023 document production that it became aware that the “pay when paid” clause in the applicable subcontracts was triggered with respect to the Delay Claim.[^23] The plaintiff submits that notice that this clause was triggered is equivalent to a condition precedent to the specific Delay Claim in the proposed amendments, and that the May 2023 disclosure by the defendants was the first notice that Urban Mechanical had been paid amounts relating to the plaintiff’s Delay Claim, which provided the factual foundation for the proposed amendments. The plaintiff asserts that without the factual foundation that it discovered on March 7, 2023, there was no basis to have asserted the Delay Claim.
[24] Although the defendants take issue with the fact that the plaintiff’s evidence with respect to discoverability is from a law clerk rather than directly from a representative of the plaintiff, I find that the evidence is sufficient to raise a dispute about discoverability. The nature of the plaintiff’s evidence on this motion is distinguishable from that in Monster Snack Inc. v. David where the court held that the moving party in that action had failed to meet its evidentiary burden and rebut the presumption in s. 5(2) of the Limitations Act, 2002 based only on a brief two-page affidavit of a legal assistant tendered by the moving party.[^24] In this case, there is uncontradicted evidence in the record that the information the plaintiff now relies on with respect to discoverability was designated and treated as confidential by the defendant Urban Mechanical and that it was not disclosed to the plaintiff until May 7, 2023.
[25] In cases where there is a factual dispute about discoverability and the court is not able to resolve the question of discoverability based on the evidence available on the motion, the amendment will normally be allowed and the responding party will be given leave to plead the limitation period as a defence.[^25] In this case, there is a factual dispute about discoverability for reasons that include the following:
(a) The applicability and impact on discoverability of the “pay when paid” clause is unclear at this time. The record does not include the relevant subcontracts that have the “pay when paid” clause and the other provisions in those agreements that the defendants submit are relevant to the application of that clause. There is very limited evidence with respect to the claims process. It would be premature to assess the defendants’ submission that the claims process for delay claims is separate and different than the claims process for unpaid invoices, or whether the plaintiff’s Delay Claim was known or sufficiently crystalized prior to the defendants’ May 2023 production of documents with respect to the arbitration process.
(b) The record is also insufficient to assess whether the plaintiff is able to quantify its Delay Claim at this time. The defendants submit that the plaintiff had already done so, and in oral argument they referred to certain documents in the record that had been prepared by the plaintiff and submitted to the defendants with respect to the plaintiff’s Delay Claim. The plaintiff disputes that its Delay Claim is based solely on those documents and submits that its claim will have to be quantified as a pro rata share of the amounts Urban Mechanical actually received by way of settlement of the arbitration process it engaged in. In the result, I do not accept the defendants’ submission that the quantification of the Delay Claim is clear and could have been pleaded in the original statement of claim or that the plaintiff’s Delay Claim is insufficiently particularized in the proposed amended statement of claim.
(c) The defendants did not file any evidence or cross-examine or seek to examine any witnesses with respect to this motion. This includes with respect to the limited evidence in the record regarding: (i) the correspondence regarding various responses from Urban Mechanical and Pomerleau to requests made pursuant to s. 39 of the Construction Act, R.S.O. 1990, c. C.30; and (ii) the settlement agreements between Urban Mechanical and Pomerleau, the latter of which is not a party to this action. At this point, there is conflicting and incomplete evidence about what the plaintiff knew or ought to have known about the settlement agreements that may have impacted the Delay Claim. This includes evidence with respect to the circumstances under which the plaintiff provided Urban Mechanical with information regarding the arbitration process and the settlement agreements, and when the plaintiff knew or ought to have known that Urban Mechanical had been paid under the Second Settlement Agreement in respect of its arbitration claims. The limited evidence in the record has not been tested by cross‑examination, and relevant information may be obtained through the ongoing discovery in this action. Further, the scope of relevance is not clear at this time.
[26] In my view, in the circumstances of this case, including the fact that information potentially relevant to discoverability was clearly subject to a confidentiality agreement and not known or available to the plaintiff until May 2023, I find that there is a dispute about discoverability that should not be resolved on this pleadings motion. Rather, the discoverability issue should be determined on a more complete record so that the court can determine whether the plaintiff’s Delay Claim was discovered on the basis asserted by the defendants, or whether the plaintiff is correct in asserting that, based on the “pay when paid” clause, it did not have knowledge of its right to be paid until May 2023 when it discovered that Urban Mechanical had been paid, thereby triggering the running of the limitation period.
[27] In the result, I find that, for the purposes of this motion, even if the Delay Claim is a newly asserted cause of action (which in my view, it is not), it is not statute‑barred. Leave is granted to amend the statement of claim without prejudice to the defendants’ right to plead a limitations defence with respect to the amendments (as they have already pled with respect to the claims in the original statement of claim).
D. DISPOSITION AND COSTS
[28] For the reasons outlined above, the motion is granted on consent with respect to the terms agreed to between the parties regarding the relief sought on this motion other than leave to amend the statement of claim.
[29] With respect to the proposed amendments to the statement of claim, the plaintiff is granted leave to amend the statement of claim in accordance with the draft amended statement of claim attached as Schedule “A” to the plaintiff’s notice of motion, subject to the following:
(a) the amendments to paragraph 19 shall not include the following: “In the Statement of Defence filed in the within action,”;
(b) the amendments to paragraph 20 shall not include the following: “However, documentation produced by the Defendants on or about March 7, 2023 in the context of the within action revealed that, contrary to the allegations made by the Defendants in the Statement of Defence,”;
(c) the amendments to paragraph 21 shall not include the following: “This documentation also confirms that”; and
(d) the paragraph numbering of the amended statement of claim shall clearly indicate those paragraphs in respect of which the paragraph numbers have changed.
[30] The leave granted to amend the statement of claim is without prejudice to the defendants’ right to plead a limitations defence with respect to the amendments.
[31] The parties are encouraged to settle the issue of costs of this motion. If the parties are unable to agree on the costs, they may file written costs submissions (not to exceed four pages, excluding Costs Outlines) in accordance with the following timetable:
(a) the plaintiffs shall serve, file and upload to Case Center its written costs submissions, which shall not exceed four pages, on or before September 16, 2024; and
(b) the defendants shall serve, file and upload to Case Center their written costs submissions, which shall not exceed four pages, on or before September 26, 2024.
DATE: September 4, 2024 R. Frank Associate J.
[^1]: Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act, 2002”)
[^2]: Navigator v. Owens, 2022 ONSC 251 (“Navigator”) at para 19
[^3]: Klassen v. Beausoleil, 2019 ONCA 407, 2019 ONCA 407, 2019 ONCA 407 (“Klassen”), at para 25
[^4]: Plante v. Industrial Alliance Life Insurance Co., 2003 64295., at para 21. See also Andrin Hillsborough Limited v. Eliaszadeh, (“Andrin”) 2021 ONSC 3229, at para 10
[^5]: Klassen, at para 27
[^6]: French v. H&R Property Management Ltd., 2019 ONCA 302 (“French”), at paras 26 and 27; see also Klassen, at para 29
[^7]: 1100997 Ontario Ltd. v. North Elgin Centre Inc., 2016 ONCA 848 (“North Elgin”), at para 23
[^8]: Andrin, at para 10; Farmers Oil and Gas Inc. v. Ontario (Natural Resources), 2016 ONSC 6359 (Div. Ct.) (“Farmers”), at para 23
[^9]: Klassen, at para 26
[^10]: Jalowiec v. Duchene, 2016 ONSC 5970, at para 11
[^11]: Frohlick v. Pinkerton, 2008 ONCA 3 (“Frohlick”), at paras 22-23
[^12]: McConnell v. Fraser, 2020 ONSC 6649
[^13]: The defendants had the opportunity to put the subcontracts between the plaintiff and Urban Mechanical into evidence on this motion, but they did not do so. The responding motion record referred to above, with respect to which I denied leave to the defendants to file late, did not include a copy of the subcontracts between the plaintiff and Urban Mechanical. As a result, the agreements between the plaintiff and Urban Mechanical were not included in any materials filed on this motion, or in any materials any party sought to file.
[^14]: Klassen, at para 29, citing Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 3rd ed. (Toronto: LexisNexis, 2017), p. 186
[^15]: Navigator, at para 32
[^16]: McConnell v Fraser, at para 26, citing Ascent Incorporated v. Fox 40 International Inc., 2009 36994 (S.C.J.), at para 3
[^17]: Original statement of claim, para 14
[^18]: Original statement of claim, para 15 (emphasis added)
[^19]: Original statement of claim, para 17 (emphasis added)
[^20]: Original statement of claim, para 18 (emphasis added)
[^21]: Klassen, at para 30, citing Farmers, at para 23
[^22]: Klassen, at para 29; McConnell v Fraser, at para 26
[^23]: The “pay when paid” clause is pleaded at paragraph 22 of the original statement of claim.
[^24]: Monster Snack Inc. v. David, 2023 ONSC 6223 at para 24
[^25]: See Frohlick at para 32, and 1917916 Ontario Ltd. v Tarion Warranty Corporation, 2022 ONSC 5034 at para 51