Harris et al. v. Rorai et al., 2026 ONSC 1967

CITATION: Harris et al. v. Rorai et al., 2026 ONSC 1967

COURT FILE NO.: CV-16-23216

DATE: 20260402

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SHAILYNN HARRIS, ROGER PRICE and the minors, TRENTIN PRICE and MYA PRICE by their Litigation Guardian ROGER PRICE

Plaintiffs

– and –

THE ESTATE OF VICTOR RORAI, DAN RORAI, SEASONS RETIREMENT COMMUNITIES (AMHERSTBURG) GP INC. and ELISSA FRAIL

Defendants

COUNSEL:

Sam Mossman, for the Plaintiffs

Peter J. Festeryga, for the Defendant, Dan Rorai

Susan Gunter and Vanessa Kiriakou, for the Defendants, Seasons Retirement Communities (Amherstburg) GP Inc. and Elissa Frail

HEARD: February 2, 2026

KALAJDZIC J.:

1In May 2015, the plaintiff, Shailynn Harris, was working as a personal support worker at Seasons Retirement Communities in Amherstburg, Ontario (“Seasons Amherstburg”) when she alleges that an elderly resident assaulted and severely injured her. The resident, Victor Rorai,¹ had just moved into the facility the day before. He had severe dementia and a history of aggressive behaviour.

2Victor’s son, Dan Rorai, was his power of attorney. He arranged for Victor’s move from a different retirement home to Seasons Amherstburg because of his father’s worsening dementia, following an incident of violence that had occurred days earlier. Ms. Harris claims that Mr. Rorai did not properly disclose the extent of his father’s aggressive behaviour to her and to Seasons Amherstburg, and that he and the other defendants, therefore, are jointly and severally liable for the injuries she sustained.

3Mr. Rorai now seeks summary judgment dismissing the claim against him on the basis that he owed no duty of care to the plaintiff.

4The plaintiffs and Seasons Amherstburg both submit that there are genuine issues requiring a trial with respect to Mr. Rorai’s knowledge, disclosures, and conduct in the period immediately preceding Victor’s admission to Seasons Amherstburg. They submit that any assessment of duty, foreseeability and breach depend on disputed factual predicates concerning knowledge, disclosure and conduct, which cannot be fairly resolved on a summary judgment motion.

5There is a second motion. The plaintiffs seek to add or substitute three companies that may be the parent company of Seasons Amherstburg and to amend the statement of claim accordingly. Mr. Rorai does not oppose the motion. In June 2025, counsel for Seasons Amherstburg advised the plaintiffs’ current lawyer that Seasons Amherstburg did not have a liability insurance policy in place at the time of the plaintiff’s loss. The plaintiffs’ former lawyer, who is now deceased, was aware of this fact no later than December 2021.

6Seasons Amherstburg resists the motion on three grounds: section 21(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B., prohibits adding a party once the limitation period has expired; adding the parent company would require piercing the corporate veil for which there is no evidentiary foundation; and adding the parent company at this late stage of the litigation would cause irreparable prejudice.

7For the reasons that follow, I dismiss both motions.

I. Summary Judgment Motion

a. Background

8The following evidence was adduced at discovery. Unless otherwise noted, the facts are not contested.

9Victor resided in a retirement home, Amica, from about 2012 to 2015. In the spring of 2015, Amica staff informed Mr. Rorai that they could no longer care for Victor due to his increasing dementia and delirium. He had to be moved by April 30, 2015.

10An incident occurred at Amica on April 29, 2015, during which Victor had been violent and aggressive with staff. As a result of the incident, Victor was taken to the hospital. Amica completed an incident report the same day, but it was not provided to Seasons Amherstburg.

11A call log dated April 29, 2015, confirms that Mr. Rorai told Seasons Amherstburg that his father had had a “set-back” and was sent to the hospital due to “high agitation and confusion”.

12Seasons Amherstburg completed a functional status form upon Victor’s admission on May 1, 2015. Two boxes were checked off indicating that in the prior one to three days, Victor had exhibited “physical behavioural symptoms directed to others, i.e. hitting, kicking, pushing, scratching, grabbing, abusing other sexually” and “verbal behavioural symptoms directed towards others, i.e. threatening others, screaming at others, cursing at others.” No details were noted on the form regarding the nature, severity or context of these behaviours and it is disputed whether Mr. Rorai gave particulars.

13Mr. Rorai also met with a representative of Amy’s Helping Hands (“AMH”) on May 1, 2015. AMH is a private homecare provider. Mr. Rorai told AMH that Victor “was resistant to PC [personal care] w/ Female Staff” and that Victor “may be combative” and may become “agitated”. The Client Service Agreement provided that service would commence on May 2, 2015.

14The parties dispute what Mr. Rorai told Seasons Amherstburg about AMH. Mr. Rorai maintains that he offered to have AMH send a support worker to assist with Victor’s care if needed. Seasons Amherstburg’s progress note dated May 1, 2015, however, indicates that Mr. Rorai advised he would have AMH attend overnight “for the next two weeks for the adjustment”.

15There is no evidence that Mr. Rorai told Seasons Amherstburg about Victor’s aversion to female personal support staff.

16The plaintiff alleges that just after midnight on May 2, 2015, when she attempted to assist Victor with an oxygen cord that was wrapped around his leg, he grabbed her by the hair and slammed her head into the floor.

17Victor was taken to the hospital following the incident. The hospital records dated May 2, 2015, include the following notes: “Son states becomes himself around 3 pm and 4 hours later +++violent & aggressive” and “Son Daniel hired Amy’s Helping Hands for night time but they refused to stay patient became aggressive and violent.”

b. Legal Framework

18Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, concerns itself with a simple question: does the action require a trial for its fair and just determination on the merits: Moffitt v. TD Canada Trust, 2023 ONCA 349, 483 D.L.R. (4th) 432, at para. 42; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 47.

19Summary judgment is generally inappropriate where the resolution of the dispute requires credibility assessments, the weighing of competing inferences, or determinations of what a party knew or ought to have known. Such issues are fact-driven and best determined at trial: Lavergne v. Dominion Citrus Limited, 2014 ONSC 1836, at para. 43.

20A motion for partial summary judgment should be considered a rare procedure reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34.

21It may not be in the interests of justice to use the new fact-finding powers under r. 20.04 to grant summary judgment against a single defendant if the claims against other parties will proceed to trial in any event. Such partial summary judgment runs the risk of duplicative proceedings or inconsistent facts: Hryniak, at para. 60.

22To determine whether a person owes a duty of care to another person, the Supreme Court adopted the test for a private duty of care as established by the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728. A duty of care will be found where:

a. There is a sufficiently close relationship between the parties so that, in the reasonable contemplation of the defendants, carelessness might cause damage to the plaintiff; and

b. There are no policy considerations which ought to negate or limit the scope of the duty, the class of persons to whom it is owed, or the damages to which a breach of it may give rise: Kamloops v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2, 10 D.L.R. (4th) 641, at p. 10; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 20.

23The foreseeability analysis may require nuanced findings that are best made at trial with the benefit of a fulsome record: Bustin v. Quaranto, 2023 ONSC 5732, at para. 27, leave to appeal refused, 2024 ONSC 1147.

24Where the plaintiff alleges an unrecognized duty of care, it may not be appropriate to strike out the action on a summary judgment motion and rule out the possibility of liability: Labrosse v. Jones et. al., 2021 ONSC 8031, at para. 23. “[T]he test on a summary judgment motion is not judicial scepticism”: Labrosse, at para. 26.

c. Analysis

25All counsel agree that this action alleges a novel duty of care. Does the family of a patient or nursing home resident have a duty to warn the facility and its employees that the patient/resident may pose a risk to their safety?

26Counsel for Mr. Rorai submits that a trial is not needed to answer this question. He argues that there is no relationship of proximity because Mr. Rorai and Ms. Harris had never met, and it would not have been possible for him to warn every individual employee with whom his father might come into contact.

27I agree with Mr. Mossman that it does not matter that Mr. Rorai had not met Ms. Harris or knew of her specific identity. Duties of care are owed to classes of people. For instance, a bartender who overserves a patron has a duty of care to strangers who may subsequently be hurt by that patron. Proximity is not concerned with intimacy or physical proximity. A personal relationship between the plaintiff and the alleged tortfeasor is not a prerequisite: Hill, at para. 29; Sienna v. Duckett, 2025 ONCA 867, at para. 29.

28Moreover, there are genuine disputes regarding Mr. Rorai’s knowledge of Victor’s aggressive behaviour and what information he communicated to, or withheld from, Seasons Amherstburg. For example:

a. He appears not to have disclosed Amica’s incident report to Seasons Amherstburg.

b. The functional status form completed by Seasons Amherstburg has checked boxes for recent aggressive behaviour but contains no particulars. Mr. Rorai testified at discovery that he described his father’s recent aggression to Seasons Amherstburg.

c. At discovery, Mr. Rorai stated that he only offered to get personal support workers from AMH to attend overnight if Seasons Amherstburg determined it was needed, whereas AMH’s documents show services were to commence on May 2, 2015.

d. The care plan prepared by AMH after meeting with Mr. Rorai included a notation that Victor was resistant to female staff. No such notation is included in Season Amherstburg’s intake forms. The plaintiff states that Mr. Rorai also told her something to the same effect when he came to Seasons Amherstburg following the incident.

29What Mr. Rorai knew and what he conveyed about his father’s risk of violence are precisely the kind of nuanced factual findings needed to complete the foreseeability analysis: Bustin, at para. 27. A trial is necessary to make these credibility findings.

30Mr. Festeryga submits that, even if proximity and foreseeability were found to exist, there are strong policy reasons not to find a duty of care, namely, that the risk and cost associated with elder care when a family member is a resident in a facility should not be borne by the family. This argument was not presented in any detail at the hearing.

31Mr. Rorai, however, was not simply a family member and the plaintiff is not alleging vicarious liability. Mr. Rorai was his father’s power of attorney. He had the authority to provide the information required by Seasons Amherstburg to do a proper risk assessment. It is in that role that he provided certain disclosures to Seasons Amherstburg: disclosures which both the plaintiff and Seasons Amherstburg now allege were deficient.

32To be sure, there are also policy considerations which militate against finding a duty. Privacy legislation may be implicated, and the imposition of a duty on family members to make full disclosure may make elder care increasingly difficult to secure. However, “policy concerns raised against imposing a duty of care must be more than speculative; a real potential for negative consequences must be apparent”: Hill, at para. 48. These policy issues are genuine ones that cannot be resolved on the limited evidence before me.

33Finally, the concerns regarding partial summary judgment also weigh against Mr. Rorai’s motion. Factual findings regarding Mr. Rorai’s communications to Seasons Amherstburg intersect and overlap with factual findings that will have to be made at trial in assessing the remaining defendants’ liability. Where, as here, the action will proceed to trial against co-defendants and the issues between all defendants are factually intertwined, partial summary judgment offers little judicial economy and risks prejudice to the remaining parties: Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267, 482 D.L.R. (4th) 113, at para. 54.

34For all of these reasons, I find that genuine issues for trial exist. Mr. Rorai’s motion is dismissed.

II. Motion to Add/Substitute Parent Company

35The plaintiffs seek to add or substitute the following three companies on the basis that Seasons Amherstburg is a wholly owned subsidiary of one or all of them: Seasons Retirement Communities GP Inc. (“Seasons”), Fengate Asset Management Inc., and/or Seasons Communities Inc.

36The plaintiffs also seek leave to amend the statement of claim to plead that these companies “were responsible at all material times […] for the operation of Seasons’ retirement home/seniors facility located in Amherstburg, Ontario.”

a. Litigation History

37In November 2015, the plaintiffs’ then lawyer, Luigi DiPierdomenico, sent correspondence to Seasons Amherstburg and its parent company, Seasons, putting them on notice of the plaintiffs’ claims.

38The plaintiffs commenced this action on January 21, 2016, but named only Seasons Amherstburg, not Seasons, in addition to the personal defendants.

39All defendants served statements of defence and Mr. Rorai served a jury notice.

40Seasons Amherstburg was examined for discovery on June 4, 2018. The representative produced to be examined was Michel Lavallee who was, at the time, the CEO of Seasons. He had no position or title with Seasons Amherstburg. His evidence was that Seasons Amherstburg was a wholly owned subsidiary of Seasons.

41The plaintiffs’ examination for discovery was held in December 2021. At either Mr. Lavallee’s or the plaintiffs’ examinations, counsel for Seasons Amherstburg informed Mr. DiPierdomenico verbally that Seasons Amherstburg did not have liability insurance at the time of the plaintiffs’ loss.

42Mr. Lavallee attended pre-trial conferences on September 25, 2023, and June 30, 2025.

43In June 2025, counsel for Seasons Amherstburg advised the plaintiffs’ current counsel about the absence of insurance.

44A corporate search conducted by Mr. Mossman shows that Fengate Asset Management Inc. is affiliated with Seasons Amherstburg and has its head office at the same location in Oakville. However, there is no evidence apart from this corporate search of the relationship between the two companies. Conversely, it is not disputed that Mr. Lavallee was the CEO of Seasons and testified that Seasons Amherstburg is one of 20 subsidiaries wholly owned by Seasons.

45Seasons Communities Inc. also appears in the corporate search, but its head office is in Burlington, and it is currently active in British Columbia. There is no evidence of any connection with Seasons Amherstburg.

b. Legal Framework

46 Rule 5.04 of the Rules of Civil Procedure provides that no proceeding shall be defeated by reason of misjoinder or non-joinder of any party. At any stage of a proceeding, the court “may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

47Rule 26.01 provides that the court shall grant leave to amend a pleading on such terms as are just, unless there is non-compensable prejudice.

48If a limitation period has lapsed, a party may not be added to an existing action: Morrison v. Barzo, 2018 ONCA 979, 144 O.R. (3d) 600, at paras. 25-27. To permit an amendment adding a party more than two years after the cause of action arose, the plaintiff must establish (i) a genuine issue of discoverability such that the limitations issue should be considered by a trial judge; or (ii) a situation of misnomer: Cavana Corporation v. SMJC Holdings Incorporated, 2012 ONSC 413, at para. 3.

49 Section 21(1) of the Limitations Act, 2002, prohibits pursuing claims against a person by adding them as a party once the limitation period has expired, subject only to the narrow misnomer exception in s. 21(2). Section 21(2) permits correction of misnomer where (i) the plaintiff intended to sue the added party; and (ii) the party knew it was the intended defendant.

c. Analysis

50If the limitation period has expired under the Limitations Act, 2002, no amendment is possible. Thus, this issue should be considered first.

51There is no issue of discoverability in this case. The plaintiffs’ former lawyer knew of the existence of Seasons and put the company on notice two months before initiating the action. Inexplicably, he did not name Seasons in the statement of claim.

52The motion was argued solely on the basis of misnomer. It is only a misnomer if a plaintiff intends to name the proper alleged tortfeasor but fails to do so by mistake and the proper alleged tortfeasor is aware that it is intended to be a defendant: KE Residences Inc. v. 3270679, 2025 ONSC 1461, at paras. 27-28.

53The plaintiffs have not articulated the mistake they seek to correct. This is not a situation of a plaintiff mistakenly naming the wrong subsidiary responsible for manufacturing a vehicle: Stekel v. Toyota Canada Inc., et al., 2011 ONSC 2211. Nor is it a case where the plaintiff sued a corporation that did not exist and never had: Primo Paving & Construction Ltd. v. Prudential Elfa Management Group Inc., 2014 ONSC 7139.

54The only reason the plaintiffs now argue that the parent companies must be added or substituted as parties is because Mr. Mossman learned last year that Seasons Amherstburg was uninsured at the time of the incident involving Ms. Harris. On this basis, Mr. Mossman argued that this is an “exceptional circumstance” that justifies substitution of either Seasons, Fengate Asset Management Inc. and/or Seasons Communities Inc. as defendants.

55The language of s. 21(1) of the Limitations Act, 2002, is mandatory. On its face, it removes from the court any discretion to add parties after the expiration of the limitation period, subject only to the exceptions in s. 21(2): discoverability and misnomer. The doctrine of special circumstances is no longer available: Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 90 O.R. (3d) 401, at paras. 27-28. The court has no jurisdiction to extend the limitation period using “special circumstances”: Ledcor Construction Limited v. Carleton University, 2009 9458 (Ont. S.C), at para. 9.

56Moreover, to permit the amendment sought by the plaintiffs would require that the court pierce the corporate veil and treat the parent company/companies as alter egos of Seasons Amherstburg.

57There is no dispute that Seasons Amherstburg existed as a corporation at the time of the incident and when the claim was commenced. The plaintiff was employed by Seasons Amherstburg, not Seasons. Although there was some discussion at the motion that Seasons Amherstburg may not currently be an active corporation, the corporate search filed in the motion record shows that the company status was active as of July 4, 2025.

58Ms. Kiriakou submits that the plaintiffs cannot pierce the corporate veil and substitute a separate company just because it is affiliated with the named defendant, and there is insufficient information to conclude that Seasons completely dominates its subsidiary.

59To pierce the corporate veil is to disregard the separate legal personality of a corporation, a fundamental principle of corporate law recognized in Salomon v. Salomon & Co., [1897] A.C. 22. Only exceptional cases – cases where applying the Salomon principle would be “flagrantly” unjust – warrant going behind the company and imposing personal liability: 642947 Ontario Ltd. v. Fleischer (2001), 2001 8623 (ON CA), 56 O.R. (3d) 417, at para. 67.

60The court will disregard the separate legal personality of a corporate entity where it is completely dominated and controlled and being used as a shield for fraudulent or improper conduct: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1986), 1996 7979 (ON CTGD), 28 O.R. (3d) 423, at pp. 433-34 (S.C.), aff’d [1997] O.J. No. 3754 (C.A.); Fleischer, at para. 68. The law is clear that the separate legal personality of a corporation should not be lightly set aside. As noted in Fleischer, only exceptional cases that result in flagrant injustice warrant doing so.

61There is limited evidence that Seasons may be the alter ego of the subsidiary that operates the retirement home. The corporate address for Seasons Amherstburg is the head office address in Oakville listed for Seasons. The CEO of Seasons, Mr. Lavallee, is defence counsel’s instructing client. Mr. Lavallee gave evidence at the examination for discovery. He testified that Seasons wholly owns all 20 subsidiaries, including Seasons Amherstburg, which operates retirement homes. He confirmed that there is information sharing between the subsidiaries/retirement homes.

62The plaintiffs also submit that the separate legal personality of Seasons Amherstburg may have been used for an improper purpose. No explanation has been given for the absence of insurance. It is not known whether Seasons Amherstburg had insurance at one time and the policy lapsed, or if it never had insurance in the first place. Although Mr. Mossman argued that insurance is a requirement under the Retirement Homes Act, 2010, S.O. 2010, c. 11, he did not refer to any provision that mandates liability insurance. (In contrast, extra expenses insurance is explicitly required under s. 5.1 of O. Reg. 166/11.)

63Counsel for Seasons Amherstburg submits that there is insufficient evidence to conclude that Seasons is the alter ego or that it completely dominated its subsidiary. But that is usually not the test on a motion to add a party; subject to considerations such as prejudice or abuse of process, there is no requirement on a motion to add a party to introduce sworn or documentary evidence to support the proposed new pleadings: Canadian Appliance Source Inc. v. Utradecanada.com Inc., 2016 ONSC 2023, 130 O.R. (3d) 717, at para. 12. So long as the pleaded facts disclose a basis for a finding of alter ego liability, the amendment should be permitted, subject to any limitations issues.

64The plaintiffs in the case at bar, however, have not filed a proposed draft amended pleading containing any allegations that Seasons or the other two companies were at all material times the alter egos of Seasons Amherstburg, or that the subsidiary was incorporated for an improper purpose. The proposed amendments are sparse; the plaintiffs plead simply that one or all of the three companies were responsible for the operation of the retirement home. Unlike the court in Canadian Appliance Source, I cannot conclude that the pleaded facts disclose a basis for a finding of alter ego liability. Moreover, there was no limitation period issue in Canadian Appliance Source.

65The plaintiffs’ former counsel knew that Seasons Amherstburg was distinct from its parent companies. The disclosure by defence counsel that Seasons Amherstburg did not have liability insurance at the material time does not constitute a ‘mistake’ for which a correction is justified under s. 21(2). The plaintiffs are not asking to substitute an incorrect defendant, but rather to add one or more new parties on the basis of a new legal theory. If the plaintiffs in fact contend that Seasons Amherstburg is a sham, incorporated for fraudulent or improper purposes, they have not prepared a draft pleading that supports those allegations. For these reasons, I am not satisfied that the conditions for misnomer have been met.

66As I have found that the plaintiffs’ requested relief is statute-barred, I need not consider the issue of prejudice under r. 5.04 of the Rules of Civil Procedure.

III. Orders

67The court orders:

a. The defendant, Dan Rorai’s, motion for partial summary judgment is dismissed.

b. If the parties cannot agree on costs of Mr. Rorai’s motion, the responding parties to his motion shall file submissions not longer than five double-spaced pages and bills of costs by April 21, 2026. Mr. Rorai shall file his costs submissions of equal length by May 8, 2026.

c. The plaintiffs’ motion to add parties and to amend the statement of claim is dismissed.

d. If the parties cannot agree on costs of the plaintiffs’ motion, the defendant, Seasons Amherstburg, shall file submissions not longer than five double-space pages and a bill of costs by April 21, 2026. The plaintiffs shall file their costs submissions of equal length by May 8, 2026.

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Jasminka Kalajdzic

Justice

Released: April 2, 2026