Court File and Parties

Court File No.: CV-22-00001488-0000

Superior Court of Justice Endorsement

Location: Oshawa

Plaintiff: Dime Taleveski Counsel: G. Triantafillopoulos

Defendants: Giocchino Tuazon and Richie Manguerra Tuazon Counsel: Y. Grand-Clement

Date: August 8, 2025

Endorsement

[1] The plaintiff brings a motion to amend his claim for damages from $1,000,000 to $6,000,000. Discoveries were completed on May 17 and December 7, 2023. Mediation took place on February 18, 2025. The action did not settle, and the plaintiff filed a trial record on March 13, 2025. A pre-trial is scheduled for April 27, 2026, and the trial date has not yet been set.

[2] The plaintiff seeks to increase the damages sought because: (1) the plaintiff obtained a Future Cost of Care report dated January 27, 2025, that calculates the plaintiff's future care requirements as a result of his injuries (which include amputation of his arm on November 19, 2024) at a value of $6,256,088.72; and (2) the plaintiff has not recovered from his injuries as well as he had expected.

[3] Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules") provides that, "[o]n 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." Amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action: 2441799 Ontario Inc. v. 2474187 Ontario Inc., 2024 ONSC 115, at para. 10.

[4] Once an action has been set down for trial, as it has in this case, r. 48.04(1) requires leave of the court to bring an amendment motion. The test for granting leave has been held by the Court of Appeal of Ontario to be co-extensive with the test under r. 26.01. The court will consider whether granting leave to bring a motion to amend a pleading would result in prejudice that could not be compensated for by costs or an adjournment: Horani v. Manulife Financial Corporation, 2022 ONSC 2350, at para. 28.

[5] The leading case on a court's discretion to allow an amendment to a Statement of Claim is 588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, 135 O.R. (3d) 694. In that decision, the Court of Appeal for Ontario listed the following factors that should be considered when determining whether to grant leave to amend a claim after the close of pleadings:

a. An amendment should be allowed unless it would cause an injustice not compensable in costs;

b. The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious;

c. No amendment should be allowed which, if originally pleaded, would have been struck; and

d. The proposed amendment must contain sufficient particulars.

[6] All the above factors weigh in favour of granting leave to amend the claim as proposed.

[7] With respect to the first factor, the defendants argue that the amendments are not worthy of trial because the evidence obtained through discovery does not support the amendments. Specifically, the defendants argue that the plaintiff's past income loss does not support an increase in damages and that the evidence obtained from discovery demonstrate that the plaintiff does not require constant supervision that warrants the damages sought in the amendment.

[8] While these are arguments that the defendants can make at trial (and they may be successful), the defendants' arguments do not establish that the proposed amendment is not an issue worthy of trial. Determining whether a proposed amendment raises an issue worthy of trial does not convert a r.26.01 motion into a motion for summary judgment. In this case, the Future Cost of Care report establishes that the amendment is based on some evidence and that there is a good faith basis for the plaintiff's proposed amendment.

[9] In any event, as stated in Andersen Consulting v. Canada (Attorney General), 150 O.A.C. 177 (C.A.), at paras. 34–35, when considering a r. 26 amendment motion, the court should not examine whether there is sufficient evidence to sustain the pleading, weigh evidence or make findings of fact. Rather, "the court should not look beyond the pleadings to determine whether the action can proceed." The defendants' arguments looks well past the pleadings. That is not permitted on a r. 26.01 motion.

[10] With respect to the second factor, it is clear that the proposed amendments would not have been struck if they were originally pled. Further, there are sufficient particulars in the claim to support the amendment.

[11] Third, there is no prejudice to the defendants that cannot be compensated by costs or an adjournment. The defendants raise two forms of non-compensable prejudice: (1) the amended claim for damages exceeds the defendants' limits under their insurance policy (i.e. $1,000,000); and (2) that the amendment is being sought after discoveries and mediation.

[12] The defendants do not point to any jurisprudence that supports the proposition that exceeding policy limits is the type of prejudice that warrants dismissing a motion to amend. In fact, the opposite is true. In research I conducted, I found at least two cases which have found that exceeding a policy limit is not a sufficient reason to dismiss a motion to amend (see Tikhanova v. Covelli et al.; Haikola v. Arasenau, 27 O.R. (3d) 576 (C.A.)). The reason for this is simple: the "prejudice" referred to in r. 26.01 does not include the adverse consequences flowing from the success of the amended plea on its merits (see Hanlan v. Sernesky, 39 C.C.L.I. (2d) 107 (Ont. C.A.)).

[13] In this case, if the amendment is permitted, the defendants may require their own counsel. If that occurs, then an adjournment to the pre-trial may be necessary and further discoveries may be necessary. This, however, is not the type of prejudice that warrants refusing leave to amend the statement of claim.

[14] In evaluating the factors identified above and considering the mandatory nature of r. 26.01, I grant the plaintiff's motion for leave to amend the statement of claim. I award costs to the plaintiff in the total of $5,500 (inclusive of H.S.T. and disbursements) on a partial indemnity basis. While the defendants' position on this motion was misguided, I find that their position was not taken to further some tactical advantage nor did the defendants' advance their position in bad faith. As such, I find that defendants' conduct on this motion does not merit an award of costs on a substantial indemnity basis or an award of costs on an actually billed basis.

The Honourable Justice S. Mathai