Karam Estate v. Dr. John Mahoney et al., 2026 ONSC 2097

CITATION: Karam Estate v. Dr. John Mahoney et al., 2026 ONSC 2097

COURT FILE NO.: CV-22-90169

DATE: 2026-04-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Antoine Karam and Lodi Nassrallah as Estate Trustees of the Estate of Georges Elias Karam, Plaintiffs

AND

Dr. John Mahoney, Dr. Riad Mansour, Dr. Heytham Kamil Alsaffar, Dr. James Wai Tai Chan, Dr. Lindsay Carr, and The Ottawa Hospital, Defendants

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Georges Nassrallah and Quatul Siddiqui, Counsel for the Plaintiffs

Meredith E. Jones and Sara Power, Counsel for the Defendant Physicians

Kim Dullet and Paige Miltenburg, Counsel for The Ottawa Hospital

HEARD: February 5, 2026

REASONS FOR DECISION

M. SMITH J

OVERVIEW

[1] The Plaintiffs seek an order for leave to amend its pleading pursuant to r. 26.02(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 1994 (the “Rules”).

[2] The Defendant Physicians oppose several of the proposed amendments on the basis that they create non-compensable prejudice.

[3] The Ottawa Hospital (“TOH”) Defendant takes no position on the motion.

[4] For reasons that follow, the Plaintiffs shall be granted leave to amend certain portions of their pleading.

PROCEDURAL HISTORY

[5] The action was commenced on September 16, 2022. It arises from the insertion of a double-J stent during a urological procedure performed by Dr. Mahoney at TOH. It is alleged by the Plaintiffs that the stent was not removed within the standard period for removal, resulting in Mr. Georges Elias Karam (“Mr. Karam”) experiencing pain and suffering during his lifetime.

[6] On March 8, 2023, all Statements of Defence and Crossclaims of the Defendant Physicians were served.

[7] On March 10, 2023, the Statement of Defence and Crossclaim of the TOH was served.

[8] The Plaintiffs did not deliver a Reply. The pleadings closed on March 20, 2023.

[9] On May 11, 2023, the Plaintiffs obtained an Order to Continue adding Antoine Karam and Lodi Nassrallah as Estate Trustees of the Estate of Mr. Karam.

[10] On August 22, 2023, a Fresh as Amended Statement of Defence and Crossclaim was served on behalf of all Defendant Physicians.

[11] On August 28, 2023, the TOH served its Affidavit of Documents, which included the Final Autopsy Report for Mr. Karam.

[12] On April 4, 2024, the Plaintiffs served expert reports regarding standard of care and causation.

[13] In July 2024, examinations for discovery of the parties were conducted.

[14] On November 20, 2024, the Plaintiffs served supplementary expert reports regarding standard of care and causation.

[15] On January 13, 2025, the Plaintiffs served a motion to amend the Statement of Claim. The main amendment consisted of adding a subrogated claim on behalf of the Ministry of Health. The motion was not opposed. The Amended Statement of Claim was issued on March 11, 2025 (“First amended claim”).

[16] On February 24, 2025, the Defendant Physicians served an expert report opining on standard of care and causation.

[17] On March 26, 2025, the Defendant Physicians served an Amended Fresh as Amended Statement of Defence and Crossclaim.

[18] On April 4, 2025, the TOH served an Amended Statement of Defence and Crossclaim.

[19] On June 3, 2025, the Plaintiffs served a motion seeking to amend the First amended claim. Shortly thereafter, the Defendant Physicians and TOH both advised that they would not take a position on the proposed Amended Amended Statement of Claim (“Second amended claim”).

[20] On June 12, 2025, the Defendant Dr. Mahoney obtained leave to issue a Third Party Claim against Antoine Karam.

[21] On August 19, 2025, the Plaintiffs served a motion to issue a Fresh as Amended Statement of Claim (“Third amended claim”). The Plaintiffs never filed a motion for the Second amended claim.

[22] On October 7, 2025, the Defendant Physicians advised counsel for the Plaintiffs that they would not oppose the amendments on the Third amended claim, provided that the phrase “The Plaintiffs rely upon the admissions of the Defendants in these proceedings” be removed as found at paragraphs 70 and 73 of the Third amended claim. On January 7, 2026, counsel for the Plaintiffs agreed to this condition.

[23] On January 26, 2026, TOH served an expert report regarding standard of care.

[24] The same day, the Plaintiffs served what was described as a clean version of the Fresh as Amended Statement of Claim (“Fourth amended claim”). Counsel for the Defendant Physicians noted that 66 paragraphs had been revised, representing a substantial departure from the Third amended claim. Of those revisions, the Defendant Physicians objected to the proposed amendments in 11 paragraphs (now nine paragraphs).

[25] The motion was held on February 5, 2026.

THE ISSUES

[26] The sole issue on this motion is whether the Plaintiffs should be granted leave to issue the Fourth amended claim, hereinafter referred to as the Fresh as Amended Statement of Claim, in its proposed form, or whether certain proposed amendments ought to be refused.

LEGAL PRINCIPLES

[27] Rule 26.01 of the Rules provides that 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.

[28] The factors to consider when assessing the proposed amendments are: (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) the proposed amendment must contain sufficient particulars: Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251, at para. 19.

[29] The general principles applicable to a motion for leave to amend the pleadings may be summarized as follows: (a) the rule is framed in mandatory terms; (b) the court must allow the amendment unless the responding party would suffer non-compensable prejudice, such as the expiry of a limitation period; (c) the proposed pleading cannot be scandalous, frivolous or vexatious, or fail to disclose a reasonable cause of action; and (d) an amendment does not assert a new cause of action, and is therefore not impermissibly statute-barred, if the original pleading contains all the facts necessary to support the amendment, such that the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded. It is therefore necessary to read the original Statement of Claim generously, with some allowance for drafting deficiencies: Klassen v. Beausoleil, 2019 ONCA 407, at paras. 25, 26, 28, and 30.

ANALYSIS

[30] The Plaintiffs submit that the proposed amendments to the Statement of Claim are required to clarify the existing prayer of relief and to further particularize the damages, losses, and injuries alleged to have been suffered in connection with Georges Elias Karam’s (“Mr. Karam”) care. The proposed amendments are said to flow directly from the facts and causes of action already pleaded in the original claim, as amended.

[31] The Defendant Physicians submit that the opposed amendments should be refused for two fundamental reasons: (a) the manner in which these amendments have been brought forward raises serious concerns and undermines the proper administration of justice, constituting an abuse of the court’s process; and (b) the opposed amendments would cause non-compensable prejudice.

[32] The nine opposed amendments can be divided into five categories: (a) amendments adding a new statute-barred wrongful death claim after the expiry of the limitation period; (b) amendments adding a spoliation of evidence claim after the expiry of the limitation period; (c) amendments adding new allegations against specific defendants based on facts not originally pleaded; (d) amendments that impermissibly withdraw prior admissions; and (e) amendments that are frivolous, vexatious, or an abuse of process and are being added for collateral purpose.

New statute-barred wrongful death claim after the expiry of the limitation period

[33] The Defendant Physicians oppose the proposed amendments found in paragraphs 51, 54 and 68 on the basis that (a) they seek to add new facts supporting a new cause of action (i.e. wrongful death) after the expiry of the limitation period; and (b) the new cause of action is untenable pursuant to s. 38(3) of the Trustee Act, R.S.O. 1990, c. T. 23, which provides that an action shall not be brought after the expiration of two years from the death of the deceased.

[34] During the motion, counsel for the Plaintiffs confirmed that they are not advancing a claim for wrongful death. The Defendant Physicians submit, however, that notwithstanding the removal of any express claim for wrongful death from the relief sought at paragraph 1(a) of the Fresh as Amended Statement of Claim, the proposed amendments in the body of the pleading nonetheless advance allegations that implicitly assert such a claim.

[35] In my view, the only issue to be determined under this category is whether the wording in certain portions of paragraphs 51, 54, and 68 of the Fresh as Amended Statement of Claim continues to plead, or could be interpreted as pleading, a wrongful death claim.

Paragraph 51

[36] Paragraph 51 reads as follows, with the proposed amendments shown in underline:

51. The Plaintiff passed away on September 19, 2020, due to complications from the stent. Following the Plaintiff’s death in September of 2020, an autopsy was completed on September 22, 2020 by Dr. Omer Nazir at the Eastern Ontario Regional Laboratory Association. The final anatomic diagnosis was performed by Dr. Charis Kepron and signed April 22, 2021.

[37] The Defendant Physicians oppose the first sentence of this paragraph on the basis that it introduces new facts in support of a new cause of action. The Plaintiffs respond that the removal of the wrongful death claim from the prayer for relief in paragraph 1(a) of the Fresh as Amended Statement of Claim is sufficient.

[38] The first sentence of paragraph 51 of the Fresh as Amended Statement of Claim may be interpreted as alleging that the Plaintiffs’ death was caused by complications arising from a stent, which is, in substance, a wrongful death claim. As such, the first sentence constitutes an impermissible amendment.

Paragraph 54

[39] Paragraph 54 reads as follows, with the proposed amendments shown in underline and strikethrough:

54. The Plaintiff experienced health complications, pain, suffering, frustration, and frequently had to return to the hospital over a period of 10 years, with various and ongoing attempts at mitigating his infections, strictly as a result of Dr. Mahoney’s failure to remove the stent following the procedure in the ordinary course, as required. Dr. Mahoney’s failure to take the reasonable and prudent steps of a practitioner in such circumstances to contact the Plaintiff or his family and complete its removal, including his failure to maintain his medical records as professionally required for which he did not and subsequently lost, and as a result of the other named Defendants’ failure to take reasonable and necessary steps to diligently identify the stent as a foreign body requiring investigation and referral to urology, including the failure to maintain any system at an institutional level to remind and alert the treating physicians of the forgotten stent, consequently resulted in the Plaintiff’s demise due to the Defendants’ failure to meet the minimum standard of care required and a breach of their duties which were non-delegable. address the problem after it was discovered.

[40] The Defendant Physicians objects to these amendments on the basis that the Plaintiffs seek to plead new facts in support of new causes of action after the limitation period, namely spoliation of evidence and wrongful death. They further submit that certain wording in this paragraph is irrelevant or immaterial to the determination of the issues in the claim.

[41] The spoliation of evidence argument is addressed in the next category.

[42] With respect to the Defendant Physicians’ objections concerning the wrongful death claim (the last five lines of paragraph 54), and similar to paragraph 51 discussed above, the impugned wording, taken at face value, could be interpreted as alleging that Mr. Karam’s death was caused by either the failure to identify the stent as a foreign body requiring investigation or the failure to maintain an institutional reminder or alert system.

[43] Regarding the Defendant Physicians’ objection to the inclusion of the phrase “duties which were non‑delegable”, I agree that this language does not add anything material to the determination of the issues in the action.

[44] Accordingly, the last five lines of paragraph 54 are impermissible amendments.

Paragraph 68

[45] The relevant portions of paragraph 68 reads as follows, with the proposed amendments shown in underline and strikethrough:

68. The Plaintiff experienced pain and suffering for a decade (10 years) directly as a result of the forgotten, ignored, misunderstood, and overlooked stent, with a magnitude of injuries and damages affecting all of his the Plaintiff’s vital organs, including without limitation a stroke, brain damage, urinary tract infections, kidney damage, gross hematuria and kidney loss, heart damage and injury, and ultimately wrongfully passing away from congestive heart failure, antibiotic resistant bacteria, etc., suffering a loss of life expectancy, and other reasons caused directly by the stent, as a result of the Defendants’ negligence post-operation and ongoing negligence in their failure to address the calcified and encrusted stent or to create a plan for its removal, inter alia, the particulars of which were professionally determined following the receipt of the autopsy report by the medical examiner, including but are not limited to:

[46] The Defendant Physicians object to the wording “ultimately wrongfully passing away from congestive heart failure, antibiotic resistant bacteria, etc., and other reasons” on the basis that it seeks to add new facts in support of the wrongful death claim.

[47] Although the Plaintiffs have removed some of the impugned wording, in my view the amendments remain insufficient. The remaining language is still capable of being interpreted as linking Mr. Karam’s death to alleged negligence on the part of the Defendant Physicians in relation to congestive heart failure and antibiotic‑resistant bacteria. As such, the remaining impugned wording should also be removed.

Spoliation of evidence claim after the expiry of the limitation period

[48] The Defendant Physicians opposed certain portions of the proposed amendments in paragraphs 54 and 74 of the Fresh as Amended Statement of Claim on the basis that the Plaintiffs seek to add a new cause of action that was not originally pleaded.

[49] The Plaintiffs argue that during the examination for discovery of Dr. Mahoney, they discovered that he had lost computer and scheduling records. This new information could not have been discovered prior to his examination for discovery.

Paragraphs 54 and 74

[50] The objectionable amendment in paragraph 54 is the following: “including his failure to maintain his medical records as professionally required for which he did not and subsequently lost.”

[51] Paragraph 74 reads as follows, with the proposed amendments shown in underline and strikethrough:

74. The Plaintiffs Estate Trustees plead and seek aggravated, punitive and exemplary damages. The Defendants forgot, ignored, overlooked, and did not investigate the stent over ten (10) years. Dr. Mahoney failed to maintain a proper reminder system, lost his storage of records (spoliation of evidence), and never followed up with the patient or his family until it was too late, ten years later. Dr. Chan knew of the stent, received imaging identifying the stent and the Plaintiff’s condition, made no investigations, and made no referrals to urology prior to discharge. Dr. Mansour knew of the stent, knew of swelling in the area of the foreign body, and did not investigate or refer the patient to a urologist to address the stent. Dr. Alsaffar directed staff at Gary J Armstrong to not take any steps to investigate the elevated and rising heart and kidney blood markers on the basis of age, did not investigate frequent infections in the area of the foreign body, over-prescribed antibiotics without an appropriate plan of care, and created antibiotic resistance and further harm within the deceased’s lungs, kidney, and other organs, rendering the removal of the stent impossible in 2020 while under his care. The Plaintiffs rely upon the Defendants’ admissions in these proceedings.

[52] The Defendant Physicians take issue with the wording “lost his storage of records” in paragraph 74.

[53] Spoliation remains a novel cause of action, and it has been permitted to proceed to trial as a novel cause of action. That said, spoliation as a self-standing cause of action is still open to question and the courts have often characterized it as an evidentiary rule: Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2023 ONCA 412, 167 O.R. (3d) 321, at paras. 21-22, leave to appeal refused, [2023] S.C.C.A. No. 363.

[54] If I were to recognize spoliation as a new cause of action, s. 38(3) of the Trustee Act would apply. That provision imposes a strict two‑year limitation period running from the date of the deceased’s death, without regard to the discoverability principle. Accordingly, the Plaintiffs would have been required to advance any claim for spoliation no later than two years after Mr. Karam’s death on September 19, 2020. The fact that the Plaintiffs allege they first discovered the spoliation during examinations for discovery in July 2024 is therefore of no consequence. Any such claims would be statute‑barred.

[55] If I were to treat spoliation as an evidentiary rule rather than a cause of action, the Defendant Physicians submit, relying on an Ontario Court of Appeal decision, that it need not be specifically pleaded because it does not set out a principle of law: Spasic Estate v. Imperial Tobacco Ltd. 2000 CanLII 17170 (ON CA), [2000], 49 O.R. (3d) 699 (C.A), at para. 25, leave to appeal refused, [2000] S.C.C.A. No. 547.

[56] I am not prepared to recognize spoliation as a new cause of action. In my view, it is more appropriately treated as a rule of evidence. When characterized in that manner, no limitation period applies. I agree with the Defendant Physicians that, as an evidentiary doctrine, spoliation need not be specifically pleaded in order to be relied upon. That said, I am not aware of any rule of pleading that would preclude a party from expressly pleading spoliation. In the interests of clarity and to avoid any surprise or confusion as to whether the Plaintiffs intend to advance an argument of spoliation of evidence and seek related adverse inferences, I will permit the amendments to stand.

New allegations against specific defendants based on facts not originally pleaded

[57] The Defendant Physicians oppose the proposed amendments found in paragraph 19, 41, 53, and 74 of the Fresh as Amended Statement of Claim on the grounds that the Plaintiffs seek to introduce new and distinct allegations against specific Defendant Physicians based on facts not originally pleaded. They argue that the law is clear that an amendment will be refused where, after the expiry of a limitation period, it seeks to advance a fundamentally different claim based on facts that were not originally pleaded.

[58] Alternatively, the Defendant Physicians state that the proposed amendments are allegations that are superfluous to the claim and are being inserted merely for colour or to prejudice the Defendant Physicians. These new allegations do not contribute to the substantive resolution of the dispute and should not be permitted to be pleaded.

[59] With specific reference to the proposed amendments in each of the identified paragraphs, the Defendant Physicians submit as follows:

i. Paragraph 19 adds facts regarding an abdominal aortic aneurysm and alleges, for the first time, that Dr. Mahoney simply opted not to treat it (“for which Dr. Mahoney and the Defendants did not elect to treat.”)

ii. Paragraph 41 adds facts and alleges, for the first time, that Dr. Alsaffar “mistakenly diagnosed the Plaintiff with bladder cancer”, “directed his staff to do nothing except over-prescribe antibiotics”, and “advised the Plaintiff’s family that the J stent was beneficial and should remain”.

iii. In addition to adding new facts supporting a new cause of action (wrongful death), which is addressed above, paragraph 53 also alleges, for the first time, that the stent created MRSA and VRE “due to Dr. Alsaffar’s over-prescription of antibiotics”.

iv. Paragraph 74 adds facts and alleges, for the first time, that Dr. Alsaffar “overprescribed antibiotics” and “created antibiotic resistance”.

[60] The Plaintiffs submit that the proposed amendments raise issues that are already live in the litigation and merely provide further particulars of the existing facts and factual matrix that have already pleaded.

Paragraph 19

[61] The abdominal aortic aneurysm has already been pleaded. I disagree with the Defendant Physicians that it is entirely unrelated to the failures being alleged with respect to the stent.

[62] In my view, there is some correlation between the aneurysm and the stent, and the care that was provided to Mr. Karam by the Defendant Physicians.

[63] I find that the proposed amendment forms part of the existing factual matrix. It does not introduce a new cause of action, nor does it give rise to non‑compensable prejudice. Accordingly, the amendment is permissible.

Paragraph 41

[64] The addition of paragraph 41, with the proposed amendments shown in underline, reads as follows:

Further, Dr. Alsaffar had mistakenly diagnosed the Plaintiff with bladder cancer following a screening. The misdiagnosis was made after Dr. Alsaffar noticed tissue growth and calcification where the stent had been placed. Despite his knowledge of the stent, and his belief the Plaintiff had bladder cancer, Dr. Alsaffar still refused to refer the Plaintiff to a urology specialist. In fact, Dr. Alsaffar directed his staff to do nothing except to over-prescribe antibiotics. At all times up to the Plaintiff’s death, Dr. Alsaffar advised the Plaintiff’s family that the J stent was beneficial and should remain.

[65] The Plaintiffs argue that the proposed amendments particularize Dr. Alsaffar’s failure to treat the condition that is associated with the stent, and the facts supporting the particulars are drawn directly from the medical records already pleaded and relied upon.

[66] The Defendant Physicians say that Dr. Alsaffar’s failure to diagnose is not part of the original Statement of Claim and it introduces an entirely new factual matrix.

[67] I disagree.

[68] At paragraph 40 of the original Statement of Claim, it is alleged that “Dr. Alsaffar took no further steps to inquire about the procedure from 2010…”. A failure to make reasonable inquiries can be interpreted as a failure to diagnose.

[69] In my view, paragraph 41 does not introduce a new cause of action. It particularizes Dr. Alsaffar’s alleged failures to investigate and treat the stent-related complications, and it forms part of the original factual matrix.

[70] That said, a portion of the proposed amendment in paragraph 41 should not be permitted. The sentence “In fact, Dr. Alsaffar directed his staff to do nothing except over‑prescribe antibiotics” is written in a prejudicial and pejorative manner. It serves only to cast Dr. Alsaffar in an unduly adverse light. The sentence is inflammatory and should be struck from the proposed amendment.

[71] Paragraph 41 is a permissible amendment save and except the inflammatory sentence mentioned above.

Paragraph 53

[72] Paragraph 53 reads as follows, with the proposed amendments shown in underline and strikethrough:

53. The autopsy report notes finds in particular that the Plaintiff had a history of urinary tract infections with caused by the stent that was placed in his right kidney. Amongst other findings, the autopsy report concluded that the stent created bacterial cultural growth of methicillin-resistant staphylococcus aureus (“MSRA”) and vancomycin-resistant enterococcus faecalis (“VRE”), due to Dr. Alsaffar’s over-prescription of antibiotics and the Defendants’ failures to identify and remove the stent, absent any reminder systems in place at an institutional level. The right kidney was found to be atrophic, once again due to the stent. It was discovered at that time, based on the autopsy findings, that the Plaintiff died of congestive heart failure, whereby recurrent urinary tract infections likely contributed to the development of that congestive heart failure. The recurrent UTI’s were a function of the uretic stent that had become encrusted and colonized with MRSA and VRE throughout the Plaintiff’s body and organs, ultimately leading to failure and death.

[73] The Defendant Physicians argue that the new allegations in this paragraph 53 with respect to the prescribing of antibiotics are allegations of negligence that fall well outside the allegations related to the stent. The Plaintiffs are attempting to advance a fundamentally different claim against the Defendant Physicians, beyond the limitation period. They are not particularizing the claim but rather introducing new facts and new allegations. Furthermore, it is argued that the identified amendments in this paragraph seek to add new facts supporting a new cause of action (wrongful death) after the expiry of the limitation period.

[74] I disagree.

[75] The autopsy report was expressly pleaded from the outset, and the manner in which the amendments are framed does not seek to advance any new allegations. Rather, the amendments merely identify and expand upon the findings and conclusions already set out in the autopsy report, including the presence of MRSA and VRE. In my view, the Plaintiffs are not advancing a claim for wrongful death, nor attempting to alter the case as originally framed.

[76] Paragraph 53 is a permissible amendment.

Paragraph 74

[77] Paragraph 74 has already been reproduced in the spoliation of evidence section above.

[78] The Defendant Physicians argue that “over-prescribed antibiotics” and “created antibiotic resistance” are amendments that seek to introduce new allegations against Dr. Alsaffar, based on facts not originally pleaded.

[79] I disagree.

[80] The Plaintiffs’ proposed amendments relating to antibiotics identify the harm that was being caused and do not advance a new allegation. As pleaded at paragraph 46 of the Fresh as Amended Statement of Claim, it was alleged that the antibiotics prescribed were ineffective and provided only short‑term relief, confirming that issues relating to antibiotics were already in play. They do not give rise to a new cause of action but rather arise from the same factual matrix concerning the stent and are directly connected to the original allegations.

[81] The allegations pertaining to antibiotics in paragraph 74 are permissible amendments.

Withdrawal of prior admissions

The Defendant Physicians’ position

[82] The Defendant Physicians submit that in paragraph 14 of the Fresh as Amended Statement of Claim, the Plaintiffs are attempting to withdraw prior admissions, which have a direct impact on the Defendant Physicians’ Third Party Claim against Antoine Karam. They believe that the Plaintiffs are making this amendment to incur a collateral benefit to Antoine Karam.

[83] Paragraph 14 reads as follows, with the proposed amendments shown in underline and strikethrough:

14. On many occasions, when the Plaintiff attended at The Ottawa Hospital, he was unable to communicate with hospital staff, as he did not understand or speak sufficient English or French. In most circumstances Where possible, the Plaintiff would be joined by one or more of his children at the hospital who would act as translators and communicators assist with translating and communicating between doctors, hospital staff and the Plaintiff. The Ottawa Hospital did not offer translation services to the Plaintiff despite being available.

[84] The Defendant Physicians say that the following impugned wording should not be permitted to be amended because they withdraw prior admissions: replacing “In most circumstances” with “Where possible” and replacing “act as translators and communicators” with “assist with translating and communicating”.

[85] It is submitted by the Defendant Physicians that in the original pleading, Antoine Karam admitted that he acted as a translator for his father. Through the proposed amendments, the Plaintiffs are now seeking to withdraw or dilute this admission by asserting that Antoine Karam was merely assisting his father. The admission is not a peripheral matter. The Third Party Claim was commenced on the basis of the admission, and if the court withdraws the admission, it weakens the Third Party Claim. The withdrawal does not advance the Plaintiffs’ case, but it certainly prejudices the Defendant Physicians’ Third Party Claim, who was entitled to rely on that unambiguous concession.

[86] The Defendant Physicians state that the withdrawal of an admission is provided for in r. 51.05 of the Rules. The test for a party seeking to withdraw an admission was articulated in St. Joseph’s Health Centre v. Probuilt, 2021 ONSC 2972, at para. 11, where the party must establish all of the following: (a) the proposed amendment must raise a triable issue; (b) the admission was inadvertent or resulted from wrong instructions and there is a reasonable explanation for the change in position; and (c) the withdrawal of the admission will not result in prejudice that cannot be compensated by costs.

[87] The Defendant Physicians say that the applicable test for the withdrawal of an admission requires evidence explaining the reason for the change in position such that the admission was made mistakenly. Here, the Plaintiffs have adduced no affidavit evidence establishing a drafting mistake or inadvertence.

The Plaintiffs’ position

[88] The Plaintiffs submit that the amendment to paragraph 14 is to correct a drafting deficiency by former counsel.

[89] The Plaintiffs say that the impugned wording was never intended to constitute an admission, and in any event, it does not constitute an admission within the meaning interpreted in the jurisprudence. The Plaintiffs rely upon the decision of 1194388 Ont. Inc. v. The Toronto-Dominion Bank, 2014 ONSC 215, where at paragraph 17, the court defined the term “admission” as follow:

To be an “admission” the statement in the pleading must be “an unambiguous deliberate concession to the opposing party.” It must be “an intentional concession to the other side and not simply the result of words chosen in the claim.” Customarily, admissions in a pleading “are made boldly and baldly and they are, in general, specific and identifiable as admissions.” It would be rare to find an admission in a statement of claim, although it could be found if clearly stated. In fact, al of the cases referenced by both parties where a pleading has been held to be an admission have been in a statement of defence that admits a fact pled in a statement of claim.[Citations omitted.]

[90] The Plaintiffs argue that because paragraph 14 of the Fresh as Amended Statement of Claim does not constitute an admission, leave under r. 51.05 of the Rules to withdraw an admission is not required.

[91] The Plaintiffs also submit that paragraph 14 must also be read in context with the rest of the pleading. For example, at paragraph 23, the pleading is explicit that Dr. Mahoney did not advise the Plaintiffs that a stent would be inserted, nor did he advise that a stent required removal. This represents the clear factual matrix underpinning the claim.

[92] Lastly, the Plaintiffs say that the pleadings have always been clear that the family did not have any experience in the medical industry and when present, they would assist the hospital staff with translation. The wording is being corrected as the family was not present in most circumstances and were not delegated any duties.

Discussion

[93] The question to be determined is whether the phrases “in most circumstances” and “act as translators and communicators,” as appearing in paragraph 14 of the Fresh as Amended Statement of Claim, constitute admissions. If they do, then r. 51.05 of the Rules is engaged.

[94] In assessing whether a proposed amendment withdraws an admission contained in a pleading, two matters need to be considered: (a) the nature and extent of the admission in the original pleading; and (b) the difference between the original pleading and the proposed amended pleading concerning what as admitted. When considering the nature and extent of the admission, the court must consider whether the admission does one, or both, of the following: makes a deliberate concession to a position taken by the other party; or accepts that a set of facts posed by the other party is correct: Shwaluk v. HSBC Bank of Canada, 2023 ONCA 538, at paras. 20 and 22.

[95] As noted in 1194388 Ont. Inc., it is rare that a Statement of Claim contains admissions. Admissions are usually made in response to a pleading advanced by the other party, such as a Statement of Defence or a Reply. This context explains the Court of Appeal’s reasoning that, when assessing the nature and extent of the admission, the court considers whether a deliberate concession was made in response to the position of the opposing party.

[96] When the nature and extent of the phrases in issue (“in most circumstances” and “act as translators and communicators,”) are examined, the Plaintiffs have not made a deliberate concession to any position advanced by the Defendant Physicians, nor have they accepted a set of facts put forward by them. In other words, the Plaintiffs did not admit a position or legal conclusion.

[97] The nature and extent of the phrases in question reflects that Antoine Karam translated for his father because of the language barrier. It does not amount to a concession of a fact or legal position. The Plaintiffs’ proposed amendments to the pleading do not, in my view, withdraw an admission, nor do they alter the substance of the case as originally pleaded. Also, I do not believe that it was made by the Plaintiffs to incur a collateral benefit to Antoine Karam. The proposed amendments continue to plead the factual assertion that translation was provided.

[98] The proposed amendments to paragraph 14 are permissible.

Allegations that are frivolous, vexatious, or an abuse of process

[99] In paragraphs 54 and 61 of the Fresh as Amended Statement of Claim, the Plaintiffs allege for the first time that the Defendant Physicians’ duties were “non-delegable”.

[100] The Defendant Physicians argue that pleading which advance superfluous allegations incapable of affecting the outcome of an action is scandalous, frivolous and vexatious, and should be struck. They further argue that the proposed new allegation is not being advanced for the legitimate purpose of refining or strengthening the Plaintiffs’ claim but instead is advanced for an impermissible collateral purpose, namely to benefit Antoine Karam in defending the Third Party Claim.

[101] The Plaintiffs argue that Dr. Mahoney owed a duty of care to Mr. Karam that was non-delegable to either Mr. Karam or his family. The Plaintiffs say that it’s a standard pleading, being a legal conclusion based on the material facts and Dr. Mahoney’s professional obligations.

[102] I have already ruled on paragraph 54. Earlier in these reasons, I concluded that the inclusion of the phrase “duties which were non‑delegable” does not add anything material to the determination of the issues in the action and, for that reason, constitutes an impermissible amendment.

[103] In paragraph 61, the objectionable phrase is “Dr. Mahoney’s duties to the Plaintiff were non-delegable to the Plaintiff’s family.” Similarly, I do not believe that this phrase is material and/or relevant to the determination of the issues. As such, it also constitutes an impermissible amendment.

DISPOSITION

[104] For the foregoing reasons, the Plaintiffs shall be granted leave to amend their pleading, subject to the removal of the impermissible amendments identified below:

i. Paragraph 41: the fourth and fifth sentence of this paragraph starting with the words “In fact” and ending with “antibiotics”.

ii. Paragraph 51: the first sentence of this paragraph starting with the words “The Plaintiff” and ending with “stent”.

iii. Paragraph 54: the last five sentences of this paragraph starting with the word “identify” and ending with “non-delegable”.

iv. Paragraph 61: the last sentence of this paragraph starting with the words “Dr. Mahoney’s” and ending with “family”.

v. Paragraph 68: the fifth and sixth sentence of this paragraph starting with the word “ultimately” and ending with “reasons”.

[105] In terms of costs for this motion, my preliminary view is that each party should bare their own costs as there has been divided success in this motion. That said, if a party wishes to seek costs, that party shall serve and file costs submissions, within 15 days of these Reasons for Decision, limited to three pages, excluding the Bill of Costs and Offers to Settle. The other party shall then serve and file responding costs submissions, with the same page restrictions, within 15 days thereafter.

M. Smith J

Released: April 9, 2026

CITATION: Karam Estate v. Dr. John Mahoney et al., 2026 ONSC 2097

COURT FILE NO.: CV-22-90169

DATE: 2026-04-09

SUPERIOR COURT OF JUSTICE

BETWEEN:

Antoine Karam and Lodi Nassrallah as Estate Trustees of the Estate of Georges Elias Karam

Plaintiffs

– and –

Dr. John Mahoney, Dr. Riad Mansour, Dr. Heytham Kamil Alsaffar, Dr. James Wai Tai Chan, Dr. Lindsay Carr, and The Ottawa Hospital

Defendants

REASONS FOR DECISION

M. Smith J

Released: April 9, 2026