Parweez v. Manbauman, 2026 ONSC 2456
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SHUIEB PARWEEZ Plaintiff
AND:
MALIK MANBAUMAN, U-HAUL CO. (CANADA) LTD., INTACT INSURANCE COMPANY and ECONOMICAL MUTUAL INSURANCE COMPANY Defendants
BEFORE: Associate Justice Josefo
COUNSEL: Alexandra Roman, for the Plaintiff Stephen Libin, for the Defendant Manbauman Madeline Klimek & Rachel Cooper, for the Defendant U-Haul Co (Canada) Ltd. Ali Parweez, in person for the proposed third party Defendant
DECISION RELEASED: April 24, 2026
ENDORSEMENT
Overview of the Action and the motions:
The Action:
1This case arises out of an October 24, 2018 Motor Vehicle Accident (“MVA”). Defendant Manbauman was driving a rented truck from defendant U-Haul (Canada) Ltd., (“Uhaul”) when he rear-ended the plaintiff’s vehicle. What was seemingly a rather run of the mill MVA case became more complex when, at his October 29, 2024 examination for discovery, Manbauman testified that he:
knew the plaintiff Shuieb Parweez and his brother, Alli Parweez, before the MVA (circa Q. 140),
was to be paid $200 to drive the Uhaul truck (circa Q. 223), and,
admitted to lying when he completed the accident report (Q. 378), as he wrote what someone in the plaintiff’s vehicle when the MVA occurred (Manbauman could not recall at discovery who told him, including possibly the plaintiff or his brother) told him to write on that report (circa Q. 371).
2Until then, Uhaul’s counsel was defending both Uhaul and Manbauman. After his discovery, Manbauman retained separate counsel, Mr. Libin, identified above.
The Motions—what was accomplished on April 22, 2026, and what was adjourned or deferred
3The plaintiff and Uhaul each bring motions. In addition, Manbauman also brings a motion.
4The plaintiff seeks an answer to question # 118 refused at the October 9, 2024 discovery of Paul Chalmers, examined on behalf of Uhaul. Counsel worked well to resolve the other questions. Per its Fresh as Amended Notice of Motion (the plaintiff’s motion was originally returnable in 2025, yet the parties agreed to have all motions heard together), the plaintiff also seeks an extension of time to set the matter down. The plaintiff’s motion for the one refused question was argued. I will address it herein.
5The set down extension was not addressed at the motion—possibly because of the many ‘moving parts’ involving the various motions and the confusing record (I will address the confusing record at the end of these reasons). I trust that all counsel can agree on extending time. If agreement is reached, a consent (or unopposed) Order may be sent to me via ATC Ms. Sharma. If not, then, as there will have to be a case conference (“CC”) before me in any event, we can address that issue at a CC.
6Uhaul seeks both to amend its Statement of Defence, to plead the new assertions based on the evidence of Manbauman from his examination for discovery, as well as to commence a third-party claim against Alli Parweez (“Alli”). Alli appeared today, without legal counsel. He was apparently trying to call his MVA insurer to seek representation. Alli later dropped off the Zoom. I adjourned the portion of Uhaul’s motion where it seeks to third-party Alli, to allow Alli to obtain representation. The re-scheduling of that aspect of the motion will be addressed in a CC before me, with all counsel present.
7I heard Uhaul’s motion seeking to amend its Statement of Defence. I also heard Manbauman’s motion seeking to amend his Statement of Defence.
Conclusions
Should the plaintiff’s refused question be answered?
8The parties helpfully prepared a refusals chart for this one remaining refusal. Yet as my disposition of the refused question compels me to address various factual and legal issues, I dispose of this first issue herein (with thanks for the wording in the chart that each side provided, which I took into consideration).
9What plaintiff seeks is, in essence, whatever documents and information that Uhaul has pertaining to its own investigation (and not its insurer’s investigation or file) of the MVA before litigation commenced. It is asserted that such will shed evidence on how the MVA occurred, who may be liable, the extent of damages, as well as if there are witness statements, including from the driver and passengers of the plaintiff’s vehicle, and from Manbauman.
10The refusal by Uhaul is based on litigation privilege. I must decide whether the exceptional doctrine of litigation privilege, which exempts otherwise relevant items from production, properly applies in these circumstances. For this doctrine to apply, pursuant to established case-law the dominant purpose for the preparation of reports or documents must be in contemplation of actual or expected litigation. The factual question therefore is whether, on the balance of probabilities, the items in question were created for the dominant purpose of the litigation.
11The April 14, 2026 affidavit evidence of Uhaul’s counsel Ms. Cooper is that Uhaul in essence “outsources” its MVA investigations to Rep-west, a third party claims adjuster firm. Ms. Cooper’s testimony was not challenged. I found her affidavit helpful in its factual description of this entire matter. I accept, as counsel testified, that what Uhaul has done, pursuant to its delegated investigation of this MVA, is in my view akin to obtaining materials prepared by an insurance adjuster. Yet an adjuster, whether a consultant retained by an insurer, or from an insurer’s in-house staff, or retained by a company itself (as is this case), performs certain specific functions pertaining to tort claims generally (inter alia, assessing liability and damages, assessing for what the case can be settled); and adjusters certainly do this in the undisputedly litigious MVA environment.
12It is thus highly likely that (if the facts of a particular case bear this out) the dominant purpose of an adjuster’s assessment in an accident situation is in contemplation of pending litigation, or for actual litigation then existing. Such an assessment is entirely different from an internal company process which examines what went wrong and assesses what workflow function requires correction (for example, after a work accident, a safety review—arguably, the dominant purpose of such a review or assessment of work processes and how to improve these would not be in contemplation of litigation, albeit I make no broad pronouncements. After all, again, each case is fact-specific.).
13When considering if litigation privilege applies or not, an important distinction is the nature of the case: is it a first-party claim, whereupon a plaintiff is suing their own insurer, or is it a tort claim? Obviously, this within matter is a tort claim. Thus, the various first party claim cases relied upon by counsel for plaintiff which address litigation privilege must be treated cautiously. Overall, from all the cases referenced by counsel, what I found most applicable, as it was most on point with this within matter, is the decision of Justice J.W. Quinn in Panetta v. Retrocom et al., 2013 ONSC 2386. That matter involved a slip and fall accident which, in my view, is similar in scope to a MVA, as both sound in tort. After pithily describing the issues, Quinn J. concluded as follows regarding how and when litigation privilege arises, and how it applies in the circumstances of a tort claim:
“[60] As soon as the female plaintiff fell and was injured on March 5, 2008, she was in an adversarial position with all of those who ultimately were to become defendants and with their insurers.
[61] I think that, in third-party or tort claims (as opposed to claims by an insured against his or her own insurer), there is no preliminary investigative phase where privilege does not attach to notes, reports and files of adjusters. In third-party insurance claims, the sole reason for any investigation by or on behalf of an insurer is because of the prospect of litigation. It is naive to think otherwise; and the fact that the investigation may be used to arrive at a pre-lawsuit settlement does not detract from the point that I make. The prospect of litigation inherently includes the prospect of settlement.
[62] … there is no purpose for the creation of documents by an insurer in a tort context other than: (1) for anticipated litigation; (2) for setting reserves; or (3) for seeking legal advice. For completeness, I would add, as a corollary to (1): for the purpose of settlement, which I see as inextricably entwined with “anticipated litigation.”
[63] When Cunningham Lindsey [an outside adjusting firm, akin to Rep-west herein] were retained to conduct their investigation on behalf of the insurers for Wal-Mart, the sole purpose of any documents they created was in anticipation of litigation. Thus, litigation privilege arose to protect their notes, records and files generated from that point onward. And, on March 25, 2008, with the letter from the adjusters for Wal-Mart (one potential defendant) to Retrocom (a potential co-defendant), litigation privilege arose again, this time to protect Retrocom.”
14Applying this common-sense holding to the within matter, as soon as the MVA occurred and Uhaul knew about it and asked its contracted adjuster to investigate, Uhaul, like the female plaintiff in Panetta, was in an adversarial position. The dominant purpose of the investigation was thus the contemplated litigation—which litigation in this case, rather unsurprisingly, did materialize.
15Moreover, Rule 29.02.03(1)(c) also applies. In my view it would be unduly prejudicial for Uhaul, as a defendant, to have to bare its litigation or settlement strategy to the other side, or to disclose whatever else may be contained in its documents prepared as the MVA was investigated in anticipation of litigation.
16Accordingly, for these reasons Uhaul’s refusal to provide the requested documents and information is maintained on the application of litigation privilege.
Should Uhaul and Manbauman be permitted to amend their Statements of Defence?
17I address Manbauman’s proposed amendments first, albeit my observations on the law apply to both Manbauman and Uhaul. Mandbauman’s proposed amendments are in the main as follows at proposed paragraph four. I only reproduce paragraph four even though other portions are also proposed to be amended, as this excerpt suffices to convey the context, or flavour, of what is being sought to be changed:
“The Plaintiff and Alli Parweez Engaged in a Staged Collision
4.1. Alli Parweez (“Alli”) was, at all material times, the operator of the vehicle (the “BMW”) in which the Plaintiff was a passenger. Alli is also the Plaintiff’s brother.
4.2. Manbauman pleads that the Plaintiff and Alli engaged in a staged collision.
4.3. The Plaintiff and/or his associates, including Alli, recruited Manbauman to unknowingly participate in the staged collision. Specifically, Alli offered to pay Manbauman a couple hundred dollars in order to rent and transport a motorcycle using a truck to be rented from UHCAN.
4.4. The Plaintiff and Alli told Manbauman to rent the Vehicle, which he did using under Alli’s direction and using Alli’s funds.
4.5. Alli directed Manbauman to drive the Vehicle and follow closely behind the BMW. Alli and/or his associates, including the individual who was a passenger in the Vehicle with Manbauman, did not tell Manbauman where they were driving.
4.6. Suddenly without warning, and for no apparent reason, the BMW stopped, such that the Vehicle hit the BMW. The BMW did not have its lights turned on as required.
4.7. Alli and/or his associates instructed Manbauman to tell a false story when reporting the collision in attempts to make the Incident appear accidental.
4.8. Manbauman pleads that the Incident was a staged collision, planned by the Plaintiff and Alli with the intention of obtaining an insurance payout.”
18It is important to observe that this is simply a Statement of Defence. There is no counter-claim. No claim of any sort is being brought against the plaintiff by Manbauman.
19Rule 26.01 makes clear that, absent non-compensable prejudice, the court “shall” grant leave to amend on such terms as are just. In this case, there simply is no non-compensable prejudice. There is not even a pre-trial scheduled, let alone a trial date (as noted above, the plaintiff needs a further time extension order), so there is nothing herein to postpone.
20The proposed amendments are, I find, tenable, as they are based on the sworn testimony of Manbauman at his examination for discovery. That such testimony came as a surprise to all parties, including to the then counsel for the plaintiff who was examining this defendant, as well as to the counsel for Uhaul and (at the time) Manbauman, does not render the resulting proposed amended pleading non-viable. Indeed, this defendant putting his version of events in a pleading, front and center so to state, rather than saving it for trial, provides plaintiff with advance disclosure and also with further opportunity to discover this defendant. Such transparency, accordingly, is in my view the antithesis of it being prejudicial.
21As to some further delay that will result, this case has been, before these issues arose, not pushed forward by plaintiff with any great alacrity. Some of that is beyond the fault of current counsel for plaintiff, given that prior counsel for plaintiff unfortunately passed away, which transition thus led to delay. Yet even before the untimely passing of counsel, this case was not pushed forward, but proceeded, as do (too) many MVA cases, at a leisurely pace. While the Court of Appeal in Barbiero v Pollack 2024 ONCA 904 has made clear that this must change going forward, resulting delay from allowing amendments to pleadings based on newly discovered evidence is not the sole reason why this case has moved slowly. Moreover, with a CC to be held with me, and my anticipated setting of a brisk timetable, I am confident that the parties will pick up the pace going forward.
22This pleading may be amended.
23I now turn to Uhaul’s proposed amendments. These in the main allege that the plaintiff and his brother Alli deliberately staged the MVA, with Manbauman used as a stooge or a dupe, so to defraud Uhaul and its insurers. The proposed pleading is, in my view, clear and precise. After identifying that Alli was the driver and the plaintiff was the passenger, it alleges intentional fraud and describes in detail how this took place. The following excerpts describe the events as follows:
“6. UHCAN pleads that the Plaintiff and Alli engaged in an intentional fraud.
7 The Plaintiff and/or his associates, including Alli, recruited Manbauman to unknowingly participate in the intentional fraud.
The Plaintiff and Alli told Manbauman to rent the Vehicle.
Manbauman rented the Vehicle under Alli's direction and using Alli's funds. Manbauman was also paid by Alli and/or his associates for renting the Vehicle.
Alli directed Manbauman to drive the Vehicle and follow closely behind the BMW. Alli and/or his associates did not tell Manbauman where they were driving.
Suddenly without warning, and for no apparent reason, the BMW stopped, such that the Vehicle hit the BMW. The BMW did not have its lights turned on as required.
Alli and/or his associates instructed Manbauman to tell a false story when reporting the collision in attempts to make the Incident appear accidental.
UHCAN pleads that the Incident was a set-up by the Plaintiff and Alli with the intention of obtaining an insurance payout.
UHCAN further pleads that the Plaintiff and Alli engaged in a conspiracy with the predominant purpose to extract insurance proceeds and/or a damage award from UHCAN when the Incident was a set-up.
UHCAN pleads that the Plaintiff and Alli knew that if the Plaintiff's car was hit by the Vehicle, injury (which is not admitted, but is denied) would likely occur or could be reasonably claimed to have occurred.”
24This pleading clearly sets out what the plaintiff has to address to rebut this allegation which, again, is in a Statement of Defence (and proposed cross-claim), and not, I emphasize, in a claim aimed at plaintiff. The facts pleaded, if proven, would support the assertions of fraud and conspiracy of the two brothers—albeit I am not finding, at present, that the third-party claim against Alli can proceed. As discussed, for reasons of procedural fairness, he needs a chance to be heard.
25While the new alleged facts, based on the testimony of Manbauman at his discovery, will change, quite dramatically, the trajectory of this case for plaintiff (in particular), is not a trial a search for truth? Would it be the right approach to not allow these allegations to be aired, but rather, suppressed? Do we not allow the parties their opportunity to pursue their respective allegations so the trier of fact can ultimately arrive at a result supported by all relevant facts and evidence? To ask these questions is to answer them.
26Changing the trajectory of the case, even if in this matter constitutes non-compensable prejudice, is typically addressed through either costs or an adjournment. In Burton v. Docker, 2023 ONSC 1974 the court in that MVA case refused a request to amend to plead a new defence, finding that the defendant’s two and a half year delay after discovery “in seeking this amendment and their failure to explain the delay is prejudicial” to the plaintiff considering that a trial was scheduled in about ten weeks time, and the presumption of prejudice was not rebutted.
27The Court in Burton also referenced the following decision with approval:
“[19] In Toronto Standard Condo. Corp. No 2051 v Clairlea Inc., 2016 ONSC 2948, Associate Judge Haberman held that if a proposed amendment has “been forecast by evidence disclosed at discoveries”, leave to amend should be granted and any prejudice dealt with by costs or an adjournment. This decision aligns with the Court of Appeal’s framework, which acknowledges that, in some cases, the presumed prejudice overrides the salutary effects of an adjournment or costs order.”
28Yet neither Burton, nor Toronto Standard Condo Corp No 2051 referenced therein, are akin to the facts of this within matter. In this case, following the surprising discovery evidence of October 29, 2024, Manbauman soon retained new counsel and the draft pleading of Uhaul was circulated in early 2025. Given the passing of plaintiff’s first counsel, there was clearly no undue delay in Uhaul acting, nor indeed in Manbauman acting, which would prejudice the plaintiff. This case is also, and not only because of the proposed amendments, still unfortunately far away from trial.
29There is certainly no need for any adjournment in this matter. The case should instead progress. In fact, I find any further delay in moving this case forward would be prejudicial equally to all parties. Similarly, I see no basis for a costs award to plaintiff in exchange for granting the proposed amendments.
30Are the proposed amendments caught by the limitation period? Counsel for plaintiff argues that it was up to Uhaul to have discovered this alleged fraud far earlier and that its failure to properly investigate the matter should lead to a finding that the proposed amendments are outside of the limitation period, given the date of accident and proposed earlier date of when such issues should have been discovered.
31I disagree. In my view, it is likely that the discovery evidence of Manbauman took everyone by surprise. As I observed near the outset of these reasons, until what could be described as that ‘bombshell evidence’ was dropped, this case was a typical MVA matter. If the new evidence could not have been discovered before October 29, 2024, applying the discoverability principle, the parties have two years from that date to amend their pleadings. They are well within that timeline. Moreover, if Uhaul arguably should have known or suspected the alleged insurance fraud, then the plaintiff should have been equally on guard of such a possible scenario. The argument can go either way.
32In any event, I will not make a ‘hard and fast’ finding of when the new evidence could have been discovered as the record before me does not allow for such to be done with confidence. Rather, I will allow plaintiff to plead that defendants are caught by the time-limit in their to-be-amended pleading, or in a Reply, if they wish to do so.
33Finally, I note that I have considered all the cases to which counsel for the plaintiff referred me. Yet, despite her able arguments, I do not find these to be applicable given the facts of this within matter.
34Accordingly, Uhaul may amend its statement of Defence and cross-claim as it appears in the record.
35We will reconvene to consider Uhaul’s third-party action against Alli, once Alli hopefully retains counsel or decides that he will self-represent (yet to be clear, he is urged to find and retain counsel, and obtain legal advice).
Costs
36If the parties cannot agree on costs, at the CC we can establish a process to address costs.
Confusing Record
37Leaving aside for the moment that there were multiple factums and multiple records from both plaintiff and Uhaul, what everyone missed was a Compendium. Yet Rule 4.05.3.3 provides that compendiums are mandatory. In this case, compendiums with relevant excerpts would have been very helpful when I reviewed, both pre and post hearing, the voluminous material. In future counsel must provide a compendium for contested motions, or risk such motions being adjourned.
Associate Justice Josefo
Date: April 24, 2026