MOTION HEARD: 2026-01-30
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: PRINCE MANSOOR, plaintiff
AND:
IMINING TECHNOLOGIES INC. et al, defendants
BEFORE: ASSOCIATE JUSTICE R. FRANK
COUNSEL: Dean Quershi for the plaintiff/moving party Adam Wainstock for the proposed defendant, Khurram Mirza Saleem Moosa, self-represented proposed defendant Dwain Pereira, self-represented proposed defendant Khurram Shroff, self-represented proposed defendant Aram Simovonian for the defendants
HEARD: January 30, 2026
REASONS FOR DECISION
BACKGROUND AND OVERVIEW OF THE MOTION
1The plaintiff, Prince Mansoor, commenced this action by statement of claim issued on February 10, 2022. Mansoor seeks damages for conversion of certain crypto assets, breach of fiduciary duty, breach of duty of good faith and fair dealing, damages for economic loss, fraud, defamation, trespass, intentional infliction of mental suffering, and punitive damages.
2When the action was commenced, the named defendants were three corporations: iMining Technologies Inc., CanETH Staking Services Inc., and BitBit Financial.
3On this motion, Mansoor seeks leave to amend the statement of claim and leave to add four defendants to the action: Khurram Mirza, Saleem Moosa, Khurram Shroff, and Dwain Pereira. The notice of motion to amend the claim and add the proposed defendants was served on January 14, 2025.
4Mansoor’s position is that he commenced the action against only the corporate defendants because he believed the relevant transactions and conduct giving rise to the claim was attributable to the corporate defendants. He asserts that his understanding when he commenced the action was that the proposed defendants acted on behalf of the corporate defendants, and not on their own behalf, with respect to the matters in issue.
5Mansoor argues that the amendments are appropriate and necessary because of information he obtained after the commencement of the action, including through the discovery process. He submits that the new information raises issues as to whether the conduct of the proposed defendants was personal in nature or on behalf of the corporate defendants.
6The current defendants take no position on the motion. The proposed defendants oppose the motion on the basis that: (1) the claims against them personally are statute-barred; (2) the proposed amendments do not disclose a reasonable cause of action against them; and (3) amending the claim to add them at this time will cause them non-compensable prejudice.
7For the reasons that follow, the plaintiff is granted leave to amend the statement of claim and leave to add the proposed defendants. The proposed defendants are entitled to plead the limitation period as a defence.
ISSUES
8The issues on this motion are as follows:
Are the claims against the proposed defendants statute-barred?
Do the proposed amendments disclose a reasonable cause of action against the proposed defendants?
Will the proposed defendants suffer non-compensable prejudice if the amendments are allowed?
LAW AND ANALYSIS
Applicable Legal Principles
9The Court of Appeal has summarized the principles applicable to motions for leave to amend pleadings as follows:
The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court’s process; or the pleading discloses no reasonable cause of action;
The amendment may be permitted at any stage of the action;
There must be a causal connection between the non-compensable prejudice (that would arise from the amendment) and the amendment. In other words, the prejudice must flow from the amendments and not from some other source;
The non-compensable prejudice may be actual prejudice, i.e. evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided;
Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial;
At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed;
The onus to prove actual prejudice lies with the responding party; and
The onus to rebut presumed prejudice lies with the moving party.1
10The principles for determining whether the court should exercise its discretion to refuse to add defendants to an action include the following:2
Rule 26.01 is mandatory. The court must allow the amendment unless the responding party would suffer non-compensable prejudice such as the proposed pleading is scandalous, frivolous, or vexatious, or the proposed pleading fails to disclose a reasonable cause of action: Klassen v. Beausoleil, 2019 ONCA 407 at para 25.
In a pleadings motion, it is necessary to read the claim generously, allowing for some drafting deficiencies: Klassen v. Beausoleil, at para 30.
Rule 5.04(2) is discretionary. The wording of this rule is similar to r. 26.01 and therefore subject to the same tests. The court may add, delete, or substitute a party or correct the name of a party incorrectly named, unless prejudice would result that could not be compensated by costs or an adjournment. If the addition of a party appears to be an abuse of process, the court may refuse the amendment: Plante v. Industrial Alliance Life Insurance Co., 2003 64295 (ON SC), [2003] O.J. No. 3034, 66 O.R. (3d) 75, at para 25.
At the pleadings stage, the court must scrutinize the proposed amendments to prevent untenable claims from proceeding: Bonenfant v. Ponesse, 2021 ONSC 8544, at para 43.
11The Court of Appeal has also explained that “where a party wishes to amend a claim or add a new party within the limitation period, the facts pleaded are taken to be true and provable (subject to unprovable assumptive or speculative conclusions) and the court is to assess the tenability of the claim on that basis”.3
12Expiry of a limitations period is a form of non-compensable prejudice.4 Section 21(1) of the Limitations Act,5 provides as follows:
21(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
The effect of s. 21(1) of the Limitations Act is that “the clear expiration of a limitation period is an absolute bar to the addition of a party to an already existing action”.6
13Under the Limitations Act, the date of “discovery” is key to assessing whether the limitation period in respect of a claim has expired.7 Section 4 of the Limitations Act provides that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Section 5(1) of the Limitations Act provides as follows:
5(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
14As the Court of Appeal has explained:
29Where there is a question as to whether claims covered by the basic two-year limitation period are statute-barred, such that parties cannot be added pursuant to s. 21(1) of the Limitations Act, the court must make a finding as to when the plaintiff first knew the elements of the claim listed in s. 5(1)(a). If the date of actual discovery, as determined by the court, would bring the claim within the limitation period, and the proposed defendant relies on “reasonable discoverability” to contend the claim was brought outside the prescription period, the court must go on to determine under s. 5(1)(b) when “a reasonable person with the abilities and in the circumstances of [the plaintiff] first ought to have known of the matters referred to in clause (a)”. While a plaintiff’s due diligence is relevant to the finding under 5(1)(b), the absence of due diligence is not a separate basis for dismissing a claim as statute-barred…8
15The question as to when a party has, or ought to have, discovered a claim under s. 5 of the Limitations Act requires a fact-based analysis dependent on the circumstances of each case.9 Pursuant to s. 5(2) of the Limitations Act, “[a] person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.” As the Court of Appeal has explained:
31The evidentiary burden on a plaintiff seeking to add a defendant to an action after the apparent expiry of a limitation period is two-fold. First, the plaintiff must overcome the presumption in s. 5(2) that he or she knew of the matters referred to in s. 5(1)(a) on the day the act or omission on which the claim is based took place, by leading evidence as to the date the claim was actually discovered (which evidence can be tested and contradicted by the proposed defendant)….
32Second, the plaintiff must offer a “reasonable explanation on proper evidence” as to why the claim could not have been discovered through the exercise of reasonable diligence.10
16The Supreme Court has explained that “a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn.”11
17Where discoverability is the subject of a factual dispute that is dependent on credibility and a full evidentiary record, the factual dispute must be resolved at trial or by summary judgment. In such circumstances, the amendment is allowed and the responding party is entitled to plead the limitation period as a defence.12
1. Analysis – Khurram Mirza
18Mirza’s submissions focus on whether the claims against him are statute‑barred.
19Mirza asserts that the proposed amendments to add him as a defendant to this action should not be permitted because the limitation period for doing so has clearly expired. He argues that the plaintiff failed to bring this motion until January 2025, which is not within two years of discovering the alleged claims against him.
20Mirza’s submissions on the limitation period and the question of discoverability include the following:
- The plaintiff knew more than two years before this motion that:
a. an injury, loss or damage had occurred,
b. it was contributed to by an act or omission, and
c. a proceeding would be an appropriate means to seek to remedy it.
Mirza submits that this is evident because the plaintiff commenced this action on February 10, 2022, almost three years before bringing this motion, and that this satisfies s. 5(1)(a)(i), (ii) and (iv) of the Limitations Act with respect to discoverability.
- With respect to discoverability under s. 5(1)(a)(iii) of the Limitations Act, Mirza submits that:
a. the claims against Mirza are based on alleged acts or omissions in the personal dealings between the plaintiff and Mirza.
b. All of Mirza’s actions that the plaintiff alleges to be the basis of his claim took place in 2020, 2021 but no later than January 2022.
c. Therefore, the plaintiff knew that the acts or omissions in issue were those of Mirza, the person against whom he now wishes to make a claim, more than two years before bringing this motion.
21In my view, Mirza’s position oversimplifies the relevant circumstances and fails to address the key issue to be determined with respect to s. 5(1)(a)(iii) of the Limitations Act. In this case, discoverability is based not simply on when the relevant acts or omissions occurred, or that Mirza was involved in them. Rather, in this case, a key aspect of discoverability is when the plaintiff knew or ought to have known that the relevant acts or omissions could be attributable to Mirza personally as opposed to being acts or omissions on behalf of the current corporate defendants. That question must be determined based on a fact-based analysis dependent on the circumstances of this case.
22In terms of discoverability, the plaintiff’s evidence is that it was not until December 2023 that he had notice that Mirza may have been acting in a personal capacity with respect to the relevant acts or omissions attributable to him. The plaintiff asserts that this notice (for discoverability purposes) occurred only when Mirza was examined for discovery in this action as a non-party in December 2023.
23Mirza submits that the plaintiff’s assertions with respect to discoverability are “demonstrably false” because:
a. the plaintiff was made aware of a potential claim against Mirza personally when the current corporate defendants served their statement of defence in March 2022; and,
b. alternatively, the plaintiff has admitted to and was aware of the necessary material facts on which to base his claim more than two years before he brought this motion.
24I deal with each of these in turn.
a. Were the claims against Mirza discovered through the original statement of defence?
25Mirza submits that the claims against him were discovered as a result of the pleadings in the original statement of defence served in March 2022. In this regard, Mirza relies on paragraph 8 of the original statement of defence, in which the current defendants pleaded as follows:
The plaintiff at all material times managed, conducted, or initiated transaction through Mr. Mirza and others, none of which acted by or through the authority of the defendants or any of them. None of the defendants are bound vicariously or otherwise by acts or omissions of Mirza.
26Mirza submits that, in view of this pleading, it should have been obvious to Mansoor that Mirza was not acting on behalf of any of the defendants, and that, as a result, Mansoor was on notice that any claims against Mirza should be made against him personally. On that basis, Mirza asserts that the limitation period ran from no later than March 2022, and the proposed addition of him as a defendant is out of time.
27In the circumstances of this case, I do not accept Mirza’s position that discoverability should be determined based on a single snapshot in time, namely the delivery of the original statement of defence that included the pleading in paragraph 8. That argument would be more compelling had no other significant events occurred that are relevant to understanding the potential claims against Mirza personally. Rather, the determination as to when the plaintiff discovered a claim for limitations purposes requires a fact-based analysis dependent on all the circumstances of this action. In my view, the relevant facts and circumstances relating to the claims against Mirza include the following:
This action was commenced by statement of claim issued on February 10, 2022
The corporate defendants first delivered a statement of defence in March 2022. The original statement of defence was a brief pleading of only 2 pages / 12 paragraphs. As referenced above, it included the pleading at paragraph 8 that Mirza did not act with any authority of the defendants and that the defendants are not bound vicariously or otherwise by Mirza’s acts or omissions.
The plaintiff did not deliver a reply to the original statement of defence.
The Plaintiff sent a discovery plan to the defendants in November 2022 proposing to examine Mirza as a representative of CanETH. At that time, the defendants did not take the position that Mirza could not be examined as a representative of CanETH.
In December 2022, counsel for the corporate defendants sent an email to counsel for the plaintiff that included the following: “We have reported to our clients re the proposed Discovery Plan and await their approval. We have advised that, save for the dates of completion of the discovery steps, the plan, in our opinion, is satisfactory.” No opposition is indicated to the examination of Mirza as a representative of CanETH.
Correspondence continued with respect to scheduling examinations for discovery. Ultimately, a case conference was convened on March 3, 2023. Centa J. made a timetable order that included examinations for discovery of the current corporate defendants. The motion record included a discovery plan dated March 3, 2023 that proposed the examination of Mirza as a representative of CanETH.
Notices of examination were then served by the plaintiff. While the notices of examination are not included in the record, it appears from the materials in the record that they provided for the examination of three individuals on behalf of the corporate defendants, including Mirza. This was consistent with the discovery plans the plaintiff had circulated previously.
A further case conference was convened by Centa J. on May 29, 2023. The endorsement from that case conference included the following:
“It is extremely important that the defendants’ representatives make themselves available in accordance with the schedule below. It has taken much longer than normal to get these examinations scheduled. For that reason, the court is unlikely to grant any further extensions or indulgences.”
Centa J.’s order from the May 29, 2023 case conference required Mirza to attend for a 3 or 4 hour examination for discovery on June 22, 2023 and ordered that answers to undertakings and documents requested were to be delivered on or before July 7, 2023.
On June 12, 2023, the current defendants’ lawyer wrote to the plaintiff’s lawyer as follows:
“Regarding Mansoor - you have asked to examine Mr. Mirza, and Mr. Pereira, for discovery. We cannot do so because they are not parties and to produce them would fly in the face of the Rules of Civil Procedure. We are happy to produce Mr. Shroff, but cannot produce these non-parties. If you wish, we can schedule a conference before Justice Centa in this regard.”
- Centa J.’s endorsement from the June 19, 2023 case conference includes the following:
“Mr. Simovonian advises that Mr. Mirza is not a director or officer of the corporations in the Mansoor matter and cannot be made available for examination for discovery. At the conclusion of the examinations, if Mr. Qureshi is so advised, he may seek an order to compel Mr. Mirza to attend an examination to fill in any gaps.”
- In July 2023, the current defendants appointed new lawyers of record. In August 2023, the current defendants served a fresh as amended statement of defence and counterclaim. The 10 page / 60 paragraph pleading does not include the pleading from paragraph 8 of the original March 2022 statement of defence. It refers to Mirza in only one paragraph, as follows:
Khurram (Bobby) Mirza, a former shareholder of CanETH, introduced Mr. Mansoor to Mr. Shroff in or around January 2020.
In September 2023, the plaintiff served a reply and defence to counterclaim to the fresh as amended statement of defence and counterclaim.
Pereira was examined for discovery in August 2023 and Shroff was examined for discovery in September 2023. Mirza was examined as a non-party on December 14, 2023.
The notice of motion to amend the claim and add the proposed defendants was served on January 14, 2025.
28In my view, the context and circumstances outlined above do not support Mirza’s assertion that the claims against him were clearly discovered as a result of the pleading in paragraph 8 of the original statement of defence served in March 2022. For the purpose of assessing limitation issues on this motion to amend, I find that numerous events following delivery of the original statement of defence altered the landscape and were inconsistent with the allegation in paragraph 8 of that pleading. The inconsistencies included: the draft discovery plans from the plaintiff and the defendants’ responding correspondence; positions taken with respect to the examination for discovery of Mirza as a representative of CanETH and the related timetable orders; and the fresh as amended statement of defence and counterclaim that did not include, and effectively withdrew, the allegation in paragraph 8 of the original statement of defence. The plaintiff then joined issue with the current defendants by pleading in reply and response to the current defendants’ amended statement of claim that did not include the allegations in paragraph 8 of the original statement of defence.
29Considering the circumstances outlined above, for the purposes of this motion, I do not accept Mirza’s argument that the claims against him were discovered as a result of the pleadings in the original statement of defence served in March 2022.
b. Did the plaintiff have knowledge of the necessary material facts on which to base a claim against Mirza personally?
(i) Did the Petix Action provide the necessary material facts?
30Mirza submits that the plaintiff must have had knowledge of the material facts necessary to make a claim against him since at least June 2022 based on events relating to a separate action (the “Petix Action”) in which Mirza is named as a personal defendant. In the Petix Action, the plaintiffs (Giuseppe and Guiseppina Petix) claim against iMining, CanETH and a number of individuals – including Mirza, Shroff, Pereira, and Moosa – raising similar allegations as in this action. The Petix Action does not involve Mansoor, the plaintiff in this action.
31Mirza argues that, as of 2022, Mansoor must have had knowledge of the material facts necessary to make claims against him personally because: (i) the plaintiffs in the two actions share counsel who has been sharing information between them, and the two actions were the subject of multiple joint case conferences, including one on March 3, 2023; and (ii) the allegations against Mirza personally in the proposed amended statement of claim in this action were raised by the Petixes back in June 2022 when the Petix Action was commenced.
32I do not accept this argument. It is true that the plaintiffs in the two actions had common counsel and that the parties in both actions appeared together at case conferences. However, that does not mean that there had been unrestricted sharing of information between the plaintiffs in the two actions. In any event, sharing of information does not mean that the facts and circumstances relevant to each action are the same. It does not follow that sharing information necessarily demonstrates that Mansoor had knowledge of the material facts needed to make claim as of 2022. It may well be that the facts and circumstances giving rise to the Petix’s claim are different than those of Mansoor.
33In the circumstances, it is not possible to make a determination on the record of this motion that there was any sharing of information relevant to discoverability of the claim against Mirza (or the other proposed added defendants) or that if such information was shared it provided Mansoor with knowledge of the material facts necessary to make his claim as of June 2022.
(ii) Did the plaintiff otherwise have knowledge of sufficient material facts such that the claims against Mirza were discovered in 2020 and 2021?
34Mirza also argues that the plaintiff’s claim against him personally is statute‑barred because, in 2020 and 2021, the plaintiff was aware of the necessary material facts on which to base his claim.
35Mirza asserts that the plaintiff has admitted in his affidavit that he had been dealing with Mirza throughout but simply believed that all his business dealings and transactions were between himself and the current corporate defendants, and that Shroff, Moosa, Pereira and Mirza were acting on their behalf. Mirza submits that this admission is fatal to the plaintiff’s position on the issue of discoverability because it was not necessary for the plaintiff to know with certainty whether Mirza was acting personally or as an agent for the corporations in order for the limitation period to run. Therefore, Mirza submits that, for purposes of s. 5(1)(a)(iii) of the Limitations Act, the claims against him were discoverable at the time the alleged actions took place in 2020 and 2021.
36In support of this argument, Mirza relies on the following discoverability principles explained by the Court of Appeal:
(a) “The principle of discoverability provides that a ‘cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered, or ought to have been discovered, by the plaintiff by the exercise of reasonable diligence.’”13
(b) “A Plaintiff need not know that a defendant’s act or omission was culpable in order for the loss it causes to be discovered. To require a Plaintiff to know with certainty that her injuries were caused by the fault of the defendant would require her to have come to a legal conclusion as to the defendant’s liability to her. This is too high a bar for a plaintiff to have to meet.”14
(c) “Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been ‘discovered’, and the limitation begins to run.”15
(d) [W]hat a prospective plaintiff must known are the material facts necessary to make a claim, whatever form they come in.16
(e) “Certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement. It is enough to have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified.”17
37In my view, Mirza’s argument takes these important principles out of context. Both Lawless and Kowal were cases that turned on whether the plaintiff had the material facts necessary to base their claims against specific, identified defendants. Those cases did not turn on whether the plaintiff could identify the prospective defendant/tortfeasor, or the capacity in which that person was acting (namely, as a corporate representative or on their own behalf). This is important context for understanding the principles outlined in those cases.
38For example, in Lawless, a medical negligence case, the question was whether the plaintiff had sufficient material facts to base a claim against the defendants without obtaining an expert medical opinion. The Court of Appeal explained that in some medical malpractice cases, in order to discover that they have a claim, plaintiffs may require advice from a person who is medically trained, or they may need access to medical records.18 The question before the court in Lawless was whether an expert opinion was required in the circumstances of that case.
39In his factum, Mirza cites and relies on Lawless for the principle that “what a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in.” However, the full quotation of the Court of Appeal’s explanation is as follows:
28While courts speak of the need to obtain a medical opinion or the need to have access to the medical records, these are not required in all cases: see McSween v. Louis. Moreover, a formal written medical opinion is not required – what a prospective plaintiff must know are the material facts necessary to make a claim, whatever form they come in.19
40Similarly, context is important to understand the principle outlined in Kowal that it is not a requirement for discoverability for a plaintiff to have certainty a defendant is responsible for an act or omission. Kowal was a negligence case against a builder of a residential home. The issue in that case was whether the negligence claim was discoverable without an expert opinion as to who was responsible for the allegedly faulty construction work. In explaining the principle that there is no requirement of “certainty” about who is responsible for an act or omission, the Court of Appeal held as follows:
19… There was ample evidence on which to base a claim against the appellants without the necessity of obtaining any expert opinions. In our view, the motions judge erred in concluding that the respondents needed to obtain expert opinions before determining that they had a cause of action against the appellants.20
41Thus, in both Lawless and Kowal, the Court of Appeal explained that, in the circumstances of each of those cases, it was not necessary for the plaintiff to obtain an expert opinion in order to discover that they had a cause of action against the defendants.
42Mirza also relies on the principle outlined in Dale v. Frank that a plaintiff need not know that a defendant’s act or omission was culpable in order for the loss it causes to be discovered. Dale v. Frank was also a medical negligence case. In brief reasons, the Court of Appeal reiterated that the applicable test is the one outlined in Lawless.21 As in Lawless and Kowal, discoverability in Dale v. Frank turned on whether the plaintiffs had the material facts necessary to determine that a specific defendant, who had been identified, was responsible for certain acts or omissions. It did not turn on whether the plaintiffs could identify the prospective defendant/tortfeasor, or the capacity in which that person was acting.
43Here, the plaintiff is not asserting that he did not know enough facts on which to base his claims, nor is he arguing that he could not identify Mirza and the other proposed defendants as the persons involved in the acts or omissions. Rather, he is arguing that it was not sufficiently clear that Mirza and the other proposed defendants were acting in their personal capacity rather than as agents, employees, officers, or directors of the current corporate defendants. In determining discoverability in this case, the court will have to decide when the plaintiff had or ought to have had the necessary material facts with respect to the capacity in which Mirza and the other proposed added defendants were acting, namely whether as corporate representatives or on their own behalf.
There is a factual dispute about discoverability
44As noted above, the analysis under s. 5 of the Limitations Act requires the court to determine when the plaintiff knew of his claim against each of the proposed added defendants. If the date of actual discovery would bring the claim within the limitation period, the proposed defendant may rely on “reasonable discoverability” to contend the claim was brought outside the prescription period. In that circumstance, the court must then determine under s. 5(1)(b) when “a reasonable person with the abilities and in the circumstances of [the plaintiff] first ought to have known of the matters referred to in clause (a)”.
45In this case, there is a factual dispute between the parties as to when the limitation period began to run. The plaintiff’s evidence is that during Mirza’s examination in December 2023, the plaintiff “first learned that [Mr. Mirza] acted in a personal capacity to convince me to sign papers to the benefit of the defendants at the direction of Mr. Shroff… I initially believed these actions by Mr. Mirza were exclusively in his capacity as an agent of the Defendants.” Further, the plaintiff states that he understood Mirza was an agent of the defendants with respect to certain leasing issues, and that it now appears Mirza may have been acting in a personal capacity. Similarly, with respect to the allegations of trespass, the plaintiff argues that he has now learned that Mirza claims to have been acting in a personal capacity rather than on behalf of the defendants.
46The plaintiff argues that during the discovery process there were substantial inconsistencies and contradictions between the proposed defendants’ sworn statements, including whether their actions were personal in nature or on behalf of the corporate defendants. He asserts that the pleadings and evidence on discovery create doubt as to the persons from whom the plaintiff is entitled to relief.
47Based on the extensive record on this motion, I am of the view that there are issues of disputed fact and of credibility relevant to the determination of actual discovery and “reasonable discoverability”. Specifically, there is a factual dispute as to when the plaintiff discovered that Mirza was or may have been acting on his own behalf (as opposed to on behalf of the corporate defendants), such that the plaintiff would have a claim against Mirza personally.
48In my view, the question of when the claims against Mirza were discovered for purposes of s. 5(1)(a)(iii) of the Limitations Act should be determined on a complete record and in circumstances where issues of credibility can be properly assessed. Factual disputes regarding discoverability should be resolved at trial or by summary judgment.
49As a result, the amendment to add Mirza is allowed, and Mirza is entitled to plead the limitation period as a defence.
2. Analysis – Saleem Moosa
50Moosa opposes this motion on the basis that:
The proposed amendments are statute‑barred.
The proposed amendments do not disclose a reasonable cause of action against him personally.
Adding him (and the other proposed defendants) at this stage will cause prejudice and delay.
a. Are the amendments statute-barred?
51Moosa submits that the proposed amendments are statute-barred under s. 4 of the Limitations Act. Moosa asserts that for more than two years before bringing this motion to amend the claim and add him as a defendant to the action, the plaintiff knew, or ought reasonably to have known, Moosa’s identity, position, and role, as well as the material facts underlying the alleged loss. He disputes that the plaintiff only discovered his alleged involvement within two years of bringing this motion. He argues that the conduct now relied on by the plaintiff arises from the same factual matrix underlying the original claim and does not restart or extend the limitation period.
52The plaintiff’s position, like that with respect to Mirza, is that the evidence obtained in the course of this action points to claims against Moosa personally. This includes facts ascertained after the commencement of the action and evidence given during the discovery process. Further, at least some of the claims relate to events that only occurred after April 10, 2023, which would not be statute-barred. For example, the plaintiff alleges that Moosa, Pereira, and Shroff, worked in conjunction to liquidate and move the plaintiff’s assets between April 2023 and December 2023, and that he only learned of their actions in late 2023 and early 2024 through discovery.
53For the reasons outlined with respect to Mirza, I am of the view that there are issues of disputed fact and credibility relevant to the determination of actual discovery and “reasonable discoverability”. In the circumstances of this matter, the question of when the claims against Moosa were discovered for purposes of s. 5(1)(a)(iii) of the Limitations Act should be determined on a complete record and in circumstances where issues of credibility can be properly assessed. Factual disputes regarding discoverability should be resolved at trial or by summary judgment.
54I also note that at least some of the claims against Moosa relate to events that are alleged to have occurred in the period between April 2023 through to December 2023, and that the plaintiff alleges he only learned of them in late 2023 and 2024. Such claims would not be statute-barred.
55As a result, the amendment to add Moosa is allowed, and Moosa is entitled to plead the limitation period as a defence.
b. Do the proposed amendments disclose a reasonable cause of action against Moosa personally?
56Moosa submits that the proposed amendments should be refused because the proposed amended pleading discloses no reasonable cause of action against him. Moosa argues that the proposed amendments do not plead material facts establishing that he: (a) entered into any contract with the plaintiff; (b) owed the plaintiff a fiduciary or other legal duty; or (c) personally committed, directed, or participated in any alleged tort.
57I do not accept this argument. Other than a general assertion of insufficiency, Moosa does not specify which paragraphs of the proposed pleading he takes issue with. Further, Moosa makes certain submissions that are essentially arguments on the merits of the claim rather than an assertion that the amendments fail to disclose a reasonable cause of action.
58Amendments should only be refused where the proposed amended pleading discloses no reasonable cause of action or lacks a legal foundation. Amendments should be allowed unless the claim is untenable or it is “plain and obvious” that the amendments do not disclose a reasonable cause of action.22 In my view, the pleadings disclose a reasonable cause of action against both the current corporate defendants and the proposed defendants in a personal capacity. The allegations in the proposed amended statement of claim are sufficient to support claims that the proposed defendants committed actionable wrongs in their personal capacity as opposed to solely in their capacity as officers, directors or employees of the corporate defendants.23
c. Will adding Mr. Moosa (and the other proposed defendants) cause prejudice and delay?
59Moosa submits that the plaintiff has delayed adding him (and the other proposed added defendants) for tactical reasons and without any explanation for the delay. He argues that the delay is prejudicial because adding him at this stage would necessitate reopening examinations, prolong the proceedings, and cause prejudice that cannot be adequately compensated by an award of costs.
60I do not accept these arguments. Non-compensable prejudice can be actual prejudice, such as a lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. However, where such prejudice is alleged, specific details must be provided.24 Here, Moosa has not demonstrated actual prejudice. Moosa asserts that the proposed amended statement of claim will cause non‑compensable prejudice because the action will be delayed and lengthened, including the need for further examinations for discovery. However, non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial.25 Similarly, the requirement that Moosa (and the other proposed defendants) will be required to participate in and incur expense with respect to this action is not the type of non-compensable prejudice envisioned by the rule.26
61Prejudice can also be presumed where there has been an inordinate delay. However, in the circumstances of this case, there has been no lengthy delay that would lead to presumed prejudice.
62I also do not accept Moosa’s argument that the proposed amendments are tactical and an abuse of the court’s process. The facts pleaded are taken to be true and provable and the court must assess the tenability of the proposed amendments on that basis.27
3. Analysis – Khurram Shroff
63Shroff submits that the motion should be dismissed for three reasons:
The proposed amendments are statute‑barred.
The plaintiff’s litigation conduct is an abuse of process.
There is no practical or equitable necessity for joinder because funds have been paid into court.
a. Are the amendments statute-barred?
64Shroff submits that the plaintiff has been aware of his role from the time of the alleged events in 2020 and 2021 and any cause of action against Shroff personally would have been discoverable at that time.
65For the reasons outline above with respect to Mirza’s arguments on the limitation period, I am of the view that there are issues of disputed fact and credibility relevant to the determination of actual discovery and “reasonable discoverability”. In the circumstances of this matter, the question of when the claims against Shroff were discovered for purposes of s. 5(1)(a)(iii) of the Limitations Act should be determined on a complete record and in circumstances where issues of credibility can be properly assessed. Factual disputes regarding discoverability should be resolved at trial or by summary judgment.
66I also note that, as with Moosa, at least some of the claims against Shroff relate to events that are alleged to have occurred in the period between April 2023 through to December 2023, and that the plaintiff alleges he only learned of them in late 2023 and 2024. Such claims would not be statute-barred.
67As a result, the amendment to add Shroff is allowed, and Shroff is entitled to plead the limitation period as a defence.
b. Should leave to amend be refused on the basis of abuse of process?
68Shroff submits that the plaintiff improperly obtained a Mareva injunction in this action and has repeatedly attempted to relitigate issues that have already been decided, or that constitute a collateral attack on prior orders. He also takes issue with certain of the plaintiff’s submissions regarding delay in the litigation and submits that the plaintiff has conducted this action improperly and abusively. In his factum, he requests disclosure of certain information, including any contingency or alternative fee arrangements between the plaintiff and his lawyer.
69Shroff did not cite any case law in support of his position on abuse of process. Further, although the procedural history of this action includes motions seeking Mareva injunctions that were denied, or granted and later set aside, that is not a sufficient basis to refuse leave to amend the claim for reasons of abuse of process. In this regard, I was not referred to any provision in the orders or endorsements from the case conferences convened following the Mareva injunction motions indicting that the action should not proceed in the normal course due to prior misconduct by the plaintiff.
70In the circumstances, I do not accept Shroff’s submissions that abuse of process is a basis for denying the proposed amendments, and I decline to order disclosure of any of requested information.
c. Should leave to amend be refused because of the funds that have been paid into court?
71Shroff submits that leave to amend should be refused because the plaintiff’s capital contribution of approximately $82,269.44 has already been paid into court and remains available as security.
72I do not accept this submission. The amount claimed by the plaintiff exceeds the funds that have been into court. In any event, there is no interpleader motion before the court, and based on the existing pleadings and proposed amended statement of claim, there is no basis to make an order extinguishing Shroff’s liability with respect to the claims, the property in issue, or the funds that have been paid into court.
4. Analysis – Dwain Pereira
73Pereira opposes this motion on the basis that:
The proposed amendments are statute‑barred.
Adding Pereira at this stage will cause him prejudice.
a. Are the amendments statute-barred?
74Pereira submits that the plaintiff has been aware of Pereira’s role as CTO since the commencement of this action, and that any cause of action against Pereira personally would have been discoverable in 2022.28
75For the reasons outline above with respect to Mirza’s arguments on the limitations period, I am of the view that there are issues of disputed fact and credibility relevant to the determination of actual discovery and “reasonable discoverability”. In the circumstances of this matter, the question of when the claims against Pereira were discovered for purposes of s. 5(1)(a)(iii) of the Limitations Act should be determined on a complete record and in circumstances where issues of credibility can be properly assessed. Factual disputes regarding discoverability should be resolved at trial or by summary judgment.
76I also note that, as with Moosa and Shroff, at least some of the claims against Pereira relate to events that are alleged to have occurred in the period between April 2023 through to December 2023, and that the plaintiff alleges he only learned of them in late 2023 and 2024. Such claims would not be statute-barred.
77As a result, the amendment to add Pereira is allowed, and Pereira is entitled to plead the limitation period as a defence.
b. Will adding Pereira at this stage cause him non-compensable prejudice?
78Pereira submits that he will suffer prejudice from late joinder to the action because: (i) the action has been ongoing since February 2022; (ii) he was examined for discovery in August 2023 as a corporate representative, not as a personal defendant; and (iii) he would be required to retain separate legal counsel and incur significant personal costs to defend the claim.
79For the reasons outline above with respect to Moosa’s argument on prejudice, I find that Pereira has not demonstrated that the proposed amendments will cause him non-compensable prejudice as contemplated by Rules 26.01 and 5.04(2).
5. Conclusions on proposed amendments and joinder
80For the reasons outlined above, I conclude that the proposed amendments to the statement of claim and the proposed joinder of Mirza, Moosa, Shroff, and Pereira as defendants are not clearly statute‑barred. The factual disputes regarding discoverability should be resolved at trial or by summary judgment. Leave is granted to allow the proposed amendments and joinder, and the added defendants shall be entitled to plead the limitation period as a defence.
81Further, for the reasons outlined above, I conclude that the proposed amendments disclose a reasonable cause of action against the proposed defendants and that the proposed defendants have not shown that they will suffer any non-compensable prejudice if the amendments are allowed.
DISPOSITION
82I order as follows:
The plaintiff is granted leave to amend the statement of claim in the form of the draft Amended Statement of Claim attached as Schedule “A” to the notice of motion, including to add Khurram Mirza, Saleem Moosa, Khurram Shroff, and Dwain Pereira as defendants in this action.
The added defendants, Khurram Mirza, Saleem Moosa, Khurram Shroff, and Dwain Pereira are entitled to plead the limitation period as a defence.
83The parties are encouraged to try to reach an agreement with respect to costs of this motion. If they are unable to do so, the plaintiff shall deliver brief written submissions of no more than three pages (not including his Costs Outline) by no later than May 13, 2026. The added defendants shall each deliver responding costs submissions with the same restrictions by no later than May 22, 2026.
DATE: April 29, 2026 R. Frank Associate J.
Footnotes
- 1588444 Ontario Ltd. Dba Alfredo’s et. al. v. State Farm Fire and Casualty Company, 2017 ONCA 42 at para 25 as summarized in Terra Park Developments Limited v. Pensio Property Management Group Inc., 2023 ONSC 3385 (AJ) at para 20
- These principles are as summarized in Warren v. D’Alfonso et al., 2025 ONSC 956 at paras 17-20
- Schembri v. Way, 2012 ONCA 620 at para 43
- Klassen v. Beausoleil, 2019 ONCA 407 at para 26 and Frohlick v. Pinkerton Canada Ltd, 2008 ONCA 3 at para 24, as cited in 1778133 Ontario Inc. v. Laurin Contracting Ltd. et al, 2023 ONSC 2408 at para 20
- Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act”)
- Arcari v. Dawson 2016 ONCA 715 at para 7, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 522 as cited in Morrison et. al. v. Barzo, 2018 ONCA 979 at para 27
- Morrison at para 28
- Morrison at para 29
- Georgian Properties Corporation v. Robins Appleby LLP, 2022 ONCA 245 at para 39
- Morrison at paras 31-32
- Grant Thornton LLP v. New Brunswick, 2021 SCC 31 at para 3; see, also, Georgian Properties at paras 44 and 46
- General Mills Canada Corporation v. Hausman, 2011 ONSC 642 (Mast.) at para 20, citing Frohlick at para 32; and Panther Film v. RKR Financing, [2008] O. J. No. 2914 (Mast.) at paras 12-13
- Lawless v. Anderson, 2011 ONCA 102 at para 22 citing Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 (C.A.), at p. 170
- Dale v. Frank, 2017 ONCA 32 at para 7
- Lawless at para 23 (citations omitted)
- Lawless at para 28
- Kowal at para 18 (citations omitted)
- Lawless at para 24
- Lawless at para 28 (emphasis added)
- Kowal at para 19 (emphasis added; citations omitted)
- Dale v. Frank at para 7
- Warren v. D’Alfonso at para 20; Boudreau et al v. Ontario Soccer Association, 2014 ONSC 3181 at paras 24‑26
- These inlcude, for example, the pleadings in paragraphs 12, 17, 23, 40, 42-44, 52 and 54 of the proposed amended statement of claim.
- State Farm at para 25
- State Farm at para 25
- Schembri at para 44
- Schembri at para 43; Terrapark at para 21
- At certain points in his factum, Pereira asserts that the plaintiff would have known about the claims against him in 2023. For limitations purposes, that would make the claim discoverable within two years of when this motion was brought such that the claims would not be statute‑barred.