CITATION: Bitton v. Moyal, 2026 ONSC 4109

COURT FILE NO.: CV-24-00727542-00ES

DATE: 2026-07-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AVI BITTON, Plaintiff

AND:

ODETTE BITTON, MICHELLE MOYAL, ADAM BITTON, SERGE MOYAL, ERIC SOTTO, and ARIE ABITBOL, Defendants

BEFORE: Justice B. Dietrich

COUNSEL: Anna Madsen and Mark Ross, for the Plaintiff

Matthew P. Gottlieb and Mahek Punjabi, for the Defendants – Michelle Moyal, Serge Moyal, Eric Sotto, and Arie Abitbol

Irina Samborski and Shaun Laubman, for the Proposed Defendant – Odette Bitton

HEARD: May 30, 2026

ENDORSEMENT

Overview

1This motion arises out of the matter of the estate of the late Claude Bitton (the “Estate”).

2Claude Bitton (the “Deceased”) died, unexpectedly, of a heart attack on September 6, 2018.

3The plaintiff in the within action is the Deceased’s son, Avi Bitton (the “Plaintiff”). The defendants are the Deceased’s daughter, Michelle Moyal ("Ms. Moyal”), her husband, Serge Moyal (“Mr. Moyal”), and two cousins of the Plaintiff, Eric Sotto (“Eric”) and Arie Abitbol (“Arie”) (collectively, the “Defendants”).

4In addition to the Plaintiff and Ms. Moyal, the Deceased was survived by his spouse, Odette Bitton (“Ms. Bitton”), and their son Adam Bitton (“Adam”).

5At the time of his death, the Deceased’s family believed that the Deceased had died intestate.

6Several weeks later, Ms. Moyal and Ms. Bitton produced a will allegedly executed by the Deceased (the “Purported Will”). Under the Purported Will, Ms. Bitton was named as the executor and trustee, and Ms. Moyal was named as the alternative executor and trustee. Ms. Bitton renounced her appointment. Ms. Moyal accepted the role and began to administer the Estate.

7In September 2024, the Plaintiff commenced the within action, claiming, among other things, fraud, that the Purported Will was a forgery, and that Ms. Moyal was mismanaging the Estate.

8Within about 14 months of the issuance of his Statement of Claim, the Plaintiff brought this motion seeking to amend it. The Plaintiff’s proposed amendments include additional forms of relief and the addition of parties. The parties to be added are Ms. Moyal, in her capacity as Estate Trustee of the Estate, Ms. Bitton, and several corporations of which the Deceased was a shareholder (the “Proposed Defendants”).

9The issue on this motion is whether the Plaintiff should be granted leave to amend the Statement of Claim as proposed. The Defendants and the Proposed Defendants submit that leave to amend should be denied because the proposed amendments allege new claims and seek the addition of parties, which are statute-barred by the two-year limitation period set out in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. (the “Limitations Act”).

10For the reasons that follow, I find that the Plaintiff should be granted leave to amend the Statement of Claim as proposed.

Background Facts and the Plaintiff’s Evidence

11The Plaintiff’s evidence is that, following the Deceased’s death, the Bitton family discussed the matter of the Deceased having died without a will, and the implications regarding the Deceased’s real estate businesses, which involved rental properties, bank accounts, mortgages, and insurance matters.

12In an email exchange on October 25, 2018 among the Deceased’s lawyers and others, including Ms. Moyal and Mr. Moyal, Gary Caplan (“Mr. Caplan”), a lawyer, queried the existence of a will and the application of the rules of intestate succession under the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), if there was no will. The same day, Rob Pollock (“Mr. Pollock”), another lawyer, responded to Mr. Caplan’s email stating that the family had found the Purported Will.

13The Purported Will is dated August 2, 2016. It is a typewritten document, which appears to have been signed and initialled by the Deceased and two witnesses, Eric and Arie.

14A family meeting took place on November 13, 2018, attended by Ms. Bitton, Ms. Moyal, Mr. Moyal, the Plaintiff, the Plaintiff’s wife, two of the Deceased’s lawyers, namely, Mr. Caplan and Aleksandr Bolotenko, and the Deceased’s assistant and office manager, Sinthuja Jeevakaran (“Ms. Jeevakaran”). The Plaintiff was provided with a copy of the Purported Will at this meeting.

15The Purported Will states that Ms. Bitton is the sole beneficiary of the Estate, should she survive the Deceased for 30 days. Should Ms. Bitton not survive the Deceased for 30 days, the Purported Will provides that the Deceased’s three children would be equal beneficiaries of the Estate.

16In November 2018, Ms. Moyal filed an application for a Certificate of Appointment of Estate Trustee with a Will (the “CAET”). In her application, she estimated the date of death value of the Deceased’s real estate to be $8,812,360 and the value of his personal property to be $23,509,397.

17The Plaintiff asserts that, based on net worth statements prepared for the Deceased in 2017 and 2018, of which he had obtained copies, the Estate assets would have had a value of approximately $175 million at the time of the Deceased’s death.

18The CAET was issued to Ms. Moyal on November 20, 2018, and she began to administer the Estate with the assistance of Mr. Moyal.

19It is undisputed that during his lifetime, the Deceased had been providing financial support to Ms. Bitton and their three adult children.

20According to the Plaintiff, he worked in the family business and was paid $6,000 per month. The Plaintiff and his wife lived in a house owned by the Deceased. The Plaintiff paid $2,500 in monthly rent to the Deceased, and the Deceased would return that amount to the Plaintiff in cash. The Deceased paid for the Plaintiff’s utilities, clothing, groceries, cars, and other things.

21Ms. Moyal continued to support the Plaintiff financially following the Deceased’s death, largely in the same way as the Deceased had been supporting him during the Deceased’s lifetime, but she did not return to him the monthly rent money he paid. The Plaintiff received funds from Ms. Moyal, which he considered to be payments from the Estate. The Plaintiff continued to work in the Deceased’s real estate business, as he had been prior to the Deceased’s death.

22The Plaintiff’s evidence is that around December 2018 or January 2019, Ms. Moyal reduced his financial support. She told him that the reduction would be temporary, while she sorted out the Estate’s liabilities.

23In July 2022, Mr. Moyal told the Plaintiff that his services were no longer required at the Deceased’s office but that he would continue to be paid $6,000 per month. Ms. Moyal and Mr. Moyal gave various explanations for their inability to pay him more for his expenses. They cited unexpected costs, the need for contingency funds, lower rental income, and increased operating costs.

24The temporary reduction in payments to the Plaintiff persisted for years, and Ms. Moyal told the Plaintiff that there was insufficient liquidity to increase his support. Ms. Moyal also declined the Plaintiff’s request for money to assist the Plaintiff with a down payment for a new home. In addition to denying this request, Ms. Moyal reduced the financial support she had been paying to the Plaintiff, stating that she had to preserve the Estate’s assets to meet its obligations.

25The Plaintiff’s evidence is that the lifestyle of Ms. Moyal and Mr. Moyal continued to improve. They lived lavishly and made generous charitable donations. In the fall of 2023, the Plaintiff began confiding in others regarding his frustration that Ms. Moyal was not paying him enough, and that the Deceased had assured the Plaintiff that the Deceased would provide financial support to the Plaintiff for the rest of his life.

26In June 2024, the Plaintiff spoke to Ms. Bitton about his discussions with the Deceased and his dismay that the Deceased had told him that the family members would inherit millions, but Ms. Moyal and Mr. Moyal insisted that the Estate did not have money. Ms. Bitton then arranged for the Plaintiff to meet with Ms. Jeevakaran to get more information.

27The Plaintiff met with Ms. Jeevakaran in June 2024, and she told him that the net worth statement numbers that he had seen for 2017 and 2018 were inflated for the purposes of showing them to lenders. She promised to send him more financial information but never did. Subsequently, the Plaintiff’s access to the company email account was eliminated.

28Around this time, the Plaintiff had conversations with colleagues and business associates of the Deceased. The Plaintiff’s evidence is that they told him that, in conversations they had had with the Deceased after August 2016, the Deceased had told them that he did not have a will. The Plaintiff’s evidence is that he also learned that none of the Deceased’s lawyers (Mr. Pollock, Mr. Caplan, Mr. Cohen, and Mr. Avagyan) were aware of any will having been made by the Deceased. Some suggested that it would be surprising if the Deceased had made a will without the assistance of a lawyer. Harley Gold (“Mr. Gold”), a business associate and friend, told the Plaintiff that the Deceased had told him in 2017 that the Deceased did not have a will, and that Mr. Gold had referred him to someone at RBC Private Banking to assist him with his planning. Mr. Gold also opined that the Deceased, an Orthodox Jew, would not have made a will on August 2, 2016 because that date would have fallen within “The Three Weeks” of mourning in the Jewish calendar, when devout Jews like the Deceased would not enter into business deals or sign a will.

29The Plaintiff has adduced affidavits sworn by these business associates and friends of the Deceased with whom he consulted. None of them have a financial interest in the Estate. In their affidavits, they corroborated what the Plaintiff said they told him.

30Based on his investigation, the Plaintiff concluded that the Purported Will was a forgery. He then retained counsel, and he commenced the within action. In his Statement of Claim, issued September 13, 2024¹, he named the Defendants.

31The Plaintiff’s evidence is that in addition to the forgery, at the time he initiated the claim, he was concerned about Ms. Moyal’s handling of the Estate, including the alleged underreporting of its value, and her lawyer’s failure to provide an explanation for the numbers reported on the probate application when asked. The Plaintiff claims that Ms. Moyal either delivered incorrect net worth statements for financing purposes, or she misled him about the value of the assets held by the Estate. The Plaintiff also claims that Ms. Moyal has sold and refinanced several properties within the Estate and withdrew funds for herself while claiming that there were no funds in the Estate, and that Ms. Moyal permitted other properties to be sold under power of sale, when she could have prevented such sales.

32Following the commencement of this action, Ms. Moyal ceased making the monthly $6,000 payment to the Plaintiff. Thus, the support he had been receiving for 15 years came to an end.

33In 2025, the Plaintiff expanded his legal team. He served an Amended Statement of Claim, in draft form. In the draft, the Plaintiff proposes to amend the claims and to add the Proposed Defendants. The proposed amendments are extensive and include claims for various orders relating to proof of the Purported Will in solemn form and orders relating to the administration of the Estate, including an order appointing an Estate Trustee During Litigation (“ETDL”), and orders for the following: the production of documents and information regarding the Estate administration, including transfers of properties; the preservation of Estate assets; tracing assets and proceeds; impressing a trust over certain assets; a passing of accounts by Ms. Moyal; and the appointment of an investigator, among others.

34On November 14, 2025, the Plaintiff brought this motion.

35Since delivering the Statement of Claim, the Plaintiff also arranged to have the Purported Will tested forensically. In his report dated October 21, 2025, the handwriting expert, Graham Ospreay, concluded that the signature on the Purported Will is not the Deceased’s signature.

Relief Sought

36In this motion, the Plaintiff seeks the following relief:

a. an order that the Plaintiff be granted leave to amend the Statement of Claim in accordance with the draft Amended Statement of Claim; and

b. an order that Ms. Moyal and Ms. Bitton pay the Plaintiff’s costs on a full indemnity basis.

Issues

37The issues on this motion are as follows:

1. Do the proposed amendments to the Statement of Claim assert any new causes of action against the Defendants?

2. Does the Plaintiff have an arguable case that the claims against the Defendants and Proposed Defendants were not discoverable prior to November 14, 2023 and, therefore, are not statute-barred?

3. Do the proposed amendments give rise to non-compensable prejudice?

The Plaintiff’s Position

38The Plaintiff submits that his motion must succeed against the Defendants because the proposed amendments do not assert any new causes of action against them. Rather, the amendments reflect additional relief based on the factual matrix already pleaded in the existing Statement of Claim, and they add particulars that the Plaintiff did not discover until after the Statement of Claim was issued.

39In the alternative, the Plaintiff submits that even if the amendments could be found to assert new causes of action against the Defendants, the new claims should be permitted because these causes of action were asserted prior to the two-year anniversary of the Plaintiff’s discovery of the claims and, therefore, are not statute-barred.

40Regarding the Proposed Defendants, the Plaintiff acknowledges that the claims are new claims against them. However, he asserts that his motion must succeed against them as well. He submits that, like the Defendants, the Proposed Defendants cannot succeed on their submission that the claims brought against them are statute-barred based on discoverability principles.

41The Plaintiff contends that the proposed amendments were served on the Defendants and the Proposed Defendants on November 14, 2025, and that the claims against them were not discovered or discoverable until some date after November 14, 2023. Accordingly, the Plaintiff asserts that the causes of action pled against them were asserted prior to the two-year anniversary of the Plaintiff’s discovery of his claims and, therefore, are not statute-barred.

42Further, the Plaintiff submits that the Defendants and Proposed Defendants have not adduced any evidence of actual prejudice. Regarding presumed prejudice, the Plaintiff submits that he has met his onus to adequately explain the delay in bringing his motion to amend the pleadings, and he has met his onus to show can show that there is no non-compensable presumed prejudice to either the Defendants or the Proposed Defendants.

Position of the Defendants

43The Defendants submit that the additional request for relief set out in the amendments to the Statement of Claim are new and not based on the facts as pleaded. They assert that the Plaintiff seeks to amend to add 22 new paragraphs of allegations to support those new heads of relief, and that these heads of relief could have and ought to have been included in the Statement of Claim.

44The Defendants further submit that the “new” claims are statute-barred because the Plaintiff commenced his action six years after the Deceased’s death and more than five years after the Purported Will was probated, which demonstrates that the two-year limitation period prescribed by the Limitations Act has been exceeded. They assert that if the “new” claims are statute-barred, then the Plaintiff’s motion must be dismissed.

45The Defendants also submit that a presumption of prejudice arises when the amendments are sought after the expiration of a relevant limitation period, and that the Plaintiff has failed to provide any reasonable explanation for why the claim was not brought within the limitation period. They further submit that the lengthy delay gives rise to a strong presumption of non-compensable prejudice that the Plaintiff has not rebutted.

Position of the Proposed Defendants (other than Adam)

46The Proposed Defendants agree with the Defendants that because the Plaintiff did not commence the within action within two years of having received a copy of the Purported Will, the proposed amendments are statute-barred.

47They assert that the Plaintiff knew or ought to have known the material facts underlying his claim within months of the Deceased’s death in 2018. They reject the Plaintiff’s submission that the Plaintiff could not have discovered his claim before November 14, 2023.

48The Proposed Defendants submit that the non-compensable prejudice they would suffer should bar their addition as defendants, and that the court has discretion to permit or deny the addition of a party. Ms. Bitton submits that the Plaintiff has not provided an adequate explanation for why he waited seven years to sue her despite having actual knowledge of the material facts relating to the Purported Will. Ms. Bitton’s position is that she will suffer prejudice because she has received and transferred Estate assets over many years on the understanding that the Plaintiff and her other children acknowledged the Purported Will and consented to the administration of the Estate.

Adam’s Position

49Adam takes no position on this motion.

Law

50Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), provides as follows:

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.

51The Court of Appeal for Ontario, in Klassen v. Beausoleil, 2019 ONCA 407, 34 C.P.C. (8th) 180, at para. 25, confirmed that the rule is mandatory:

The court must allow the amendment unless the responding party would suffer non-compensable prejudice, the proposed pleading is scandalous, frivolous or vexatious, or the proposed pleading fails to disclose a reasonable cause of action.²

52Rule 5.04(2), which addresses the addition, deletion, or substitution of parties, uses the same language as r. 26.01 with regard to prejudice, and provides as follows:

At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

53In 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, 135 O.R. (3d) 681, at para. 25, the court provides the following guidance on prejudice concerning amendments, including the distinction between the onus to prove actual prejudice and the onus to rebut presumed prejudice (the last two bullet points):

The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), , 27 O.R. (3d) 576, [1996] O.J. No. 231 (C.A.), at paras. 3-4; and Plante v. Industrial Alliance Life Insurance Co. (2003), , 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master), at para. 21.

The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.

Analysis

54For the reasons that follow, the Plaintiff should be granted leave to amend his pleadings as set out in his draft Amended Statement of Claim.

55The Plaintiff’s evidence is unchallenged. The Defendants and Proposed Defendants have not cross-examined the Plaintiff or any of the other affiants whose affidavits are included in the Plaintiff’s motion record.

Do the proposed amendments to the Statement of Claim assert any new cause of action against the Defendants?

56For the reasons that follow, I find that the proposed amendments do not constitute a new cause of action against the Defendants. Rather, they seek alternative relief based on material facts that already form part of the claims made against the Defendants.

57The Defendants assert in their Statement of Defence that the Plaintiff’s claims are statute-barred. I agree with the Plaintiff that the merits of the Defendants’ limitations defence are not relevant to the disposition of the motion unless the court accepts the Defendants’ position that the limitation period expired with respect to the proposed amendments.

58As stated by the Court of Appeal in Klassen, at para. 46:

Whatever the merits of the respondents’ limitation arguments, it is only necessary to determine whether a limitation period has expired in respect of the proposed amendments if the amendments assert a new cause of action. I have concluded that the proposed amendments do not do so. For this reason, it is unnecessary to address the parties’ various limitation arguments arising from the original pleadings at this stage. It is clear that whether any or all of the appellant’s claims are time-barred will be a central issue at the eventual trial of this matter.

59In his original Statement of Claim, the Plaintiff sought and pled the following:

• a declaration that the Purported Will, allegedly executed on August 2, 2016, is null and void as a consequence of fraud on the part of the Defendants (para. 1(a));

• an order setting aside the CAET granted to Ms. Moyal “as being made as a consequence of the Defendants’ fraud” (para. 1(b));

• an order that the Plaintiff is a beneficiary of the Estate, pursuant to the provisions of the SLRA (para. 1(e));

• general and punitive damages for fraud (paras. 1(g) and 1(h));

• that following the passing of Claude Bitton, the Defendants conspired together to fraudulently prepare and witness a fabricated will purporting to be the Last Will and Testament of Claude Bitton, and that Ms. Moyal and Mr. Moyal fraudulently forged it (para. 7); and

• that Ms. Moyal and Mr. Moyal dissipated the assets of the Estate by converting them to their own use either with or without the approval and assistance of Ms. Bitton, and that Ms. Bitton is under the complete domination and control of Ms. Moyal and Mr. Moyal (para. 10).

60I agree with the Plaintiff that the proposed amendments do not constitute new causes of action against the Defendants. The court takes a “factually oriented” approach to the concept of a “cause of action”: “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”: see Klassen, at para. 27, citing 1100997 Ontario Ltd. v. North Elgin Centre Inc., 2016 ONCA 848, 409 D.L.R. (4th) 382, at para. 19, and United Food and Commercial Workers Canada, Local 175 Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671, at para. 65.

61An amendment does not assert a new cause of action if the original pleading contains all the facts necessary to support the amendments, such that the amendments simply claim additional forms of relief or clarify the relief sought, based on the same facts as originally pleaded: Klassen, at para. 28.

62I am satisfied that all the relief sought by the Plaintiff against the Defendants in the proposed amendments flows from the same factual matrix pleaded in the original Statement of Claim. The relief pertains to the Plaintiff’s essential pleadings that Ms. Moyal, with the assistant of the other Defendants, forged the Will, that she fraudulently obtained the CAET, and that she mismanaged the administration of Estate assets. Much of the relief sought in the proposed amendments relates to orders that would permit the Estate assets to be preserved and to be administered effectively by a neutral ETDL, and would require Ms. Moyal to prove the alleged forged will; to account for the Deceased’s assets and Estate assets; and to account in respect of her fiduciary duties, which is routinely required of estate trustees as part of their administration. The relief would also permit tracing remedies in respect of the Deceased’s assets and Estate assets, which may have been mismanaged by the estate trustee. Further, I am satisfied that the additional details of transactions that the Plaintiff seeks to add to the claim fall within the scope of the action originally pleaded.

63The Plaintiff submits that even if new causes of action could be found against the Defendants, which he rejects, such causes of action on an amendment motion could not be statute-barred. The Plaintiff submits that this so because a) he led evidence that none of his claims were discoverable until after December 2023 at the earliest, and b) as such, there is evidence that the two-year limitation period had not expired before the motion was brought. The matter of discoverability is discussed in more detail below.

Does the Plaintiff have an arguable case that the claims against the Defendants and Proposed Defendants were not discoverable prior to November 14, 2023 and, therefore, are not statute-barred?

64The Plaintiff does not dispute that all the claims are new causes of action against the Proposed Defendants. However, he submits that the amendments should be permitted because he has led evidence of an arguable case that the claims are not statute-barred against them because the claims were not discoverable until after December 2023.

65Both the Defendants and the Proposed Defendants (other than Adam) assert that the proposed amendments raise claims that are statute-barred pursuant to the Limitations Act. They assert that the Plaintiff is attempting to circumvent the operation of a limitation period by amending his pleadings to add additional claims after the expiry of the relevant limitation period, which is not permitted. They rely on the statement made by the Court of Appeal for Ontario in Klassen, at para. 26, that the “addition of new statute-barred claims by way of an amendment is conceptually no different than issuing a new and separate statement of claim that advances a statute-barred claim” (emphasis in original). The Proposed Defendants (other than Adam) further assert that the proposed amendments are new claims because they are made against parties sought to be added, and if the new claims are statute-barred, the Plaintiff’s motion must be dismissed.

66The onus is on the Plaintiff to show that he has a prima facie case that the claims he is bringing against the Defendants and the Proposed Defendants were not discoverable prior to November 14, 2023 and, therefore, are not statute-barred.

67The Plaintiff must adduce evidence to rebut the presumption in s. 5(2) of the Limitations Act that he knew of the matters referred to in s. 5(1)(a)³ of the Limitations Act, on the day the act or omission on which the claim is based took place. The basic two-year limitation period in respect of a will challenge is presumed to commence on the date of the testator’s death. The Plaintiff must also adduce evidence that offers a reasonable explanation on proper evidence as to why the claim could not have been discovered through the exercise of reasonable diligence.

68If the Plaintiff can establish a prima facie case that the claims were not discoverable prior to November 14, 2023, then the onus is on the Defendants to adduce evidence to show that the limitation period expired.

69The Plaintiff relies on the following evidence to demonstrate that he has a tenable argument that the limitation period has not expired because he could not have discovered his claim prior to the two-year limitation period:

1. Following receipt of the Purported Will, the Plaintiff had no reason to critically examine evidence in support of a claim against the Defendants or Proposed Defendants. He had no reason to think that they would not carry out the Deceased’s wishes and continue to support him as they had since the Deceased’s death.

2. It was not until around December 2023 that he became suspicious and began to form the belief that the excuses he was being given by Ms. Moyal and Mr. Moyal for the reduction in the payments to him from the Deceased’s businesses or the Estate were not reasonable explanations.

3. Having these misgivings, he then began to investigate by approaching Ms. Bitton, who arranged for him to speak to Ms. Jeevakaran (in June 2024). Ms. Jeevakaran gave him some information about the statements of value relating to the Deceased’s assets and said she would provide further information. That further information was never delivered.

4. His access to the company email account was then terminated, resulting in his inability to gather more information from the family business.

5. Once he began to distrust Ms. Moyal, Mr. Moyal, and Ms. Bitton, he accumulated information from the Deceased’s business associates and friends. Based on information he received from them, he concluded that it would have been unlikely that the Deceased would have signed a will on August 2, 2016 because that date fell during “The Three Weeks” in the Jewish calendar, during which the Deceased, an Orthodox Jew, would not have signed a will. It was in this process that the Plaintiff assessed the Purported Will more closely and reached the conclusion that a lawyer did not prepare it.

6. It was only after December 2023 that the Plaintiff learned that the Purported Will was forged, that Ms. Moyal had obtained the CAET fraudulently, and that the Plaintiff learned that Ms. Moyal had lied about the value of the Estate.

70The Plaintiff submits that all this information formed the basis for his claims that the Purported Will was the product of fraud and forgery; that the Deceased had died intestate; that Ms. Moyal had fraudulently obtained the CAET; and that Ms. Moyal had misled the court regarding the value of the Estate. He submits that it was then that he determined that a proceeding would be the appropriate means to remedy the damage caused.

71The Plaintiff also submits that his evidence supports an arguable case as to why his claims against the Defendants and the Proposed Defendants could not have been discovered through the exercise of reasonable diligence.

72The Defendants and Proposed Defendants argue that all of this information relied on by the Plaintiff would have been available to him when he was given a copy of the Purported Will within weeks of the Deceased’s death, and that there was nothing that prevented him from gathering the information he relies on to support his claims then.

73However, the Defendants and Proposed Defendants have adduced no evidence of their own in this regard to rebut the Plaintiff’s evidence. Nor did they test or contradict the Plaintiff’s evidence.

74The Plaintiff has led specific evidence, as described above, as to his discovery of the claims in his action. He contends that his claims against the Defendants and the Proposed Defendants were not discovered until after December 2023.

75I find that the Plaintiff has met his burden. It will be for the judge on a summary judgment motion or the trial judge to determine, on a full evidentiary record, whether the Plaintiff’s claims are statute-barred. That judge will be in the best position to adjudicate any limitations defence on the merits.

Do the proposed amendments give rise to non-compensable prejudice?

76The onus is on the responding parties, the Defendants and Proposed Defendants, to show that granting leave to the Plaintiff to make the proposed amendments pursuant to r. 26.01 or to add parties pursuant to r. 5.04(2) would result in actual non-compensable prejudice.

77The Defendants and Proposed Defendants must provide specific details proving that they have lost a litigation opportunity or suffered a disadvantage, as a consequence of the amendment, that cannot be compensated for by an award of costs or an adjournment.

78The Defendants and the Proposed Defendants tendered no evidence to ground a finding of non-compensable actual prejudice as a consequence of the amendments.

79They can plead a limitations defence and raise it at trial or on a motion for summary judgment.

80However, a presumption of prejudice arises when the amendments are sought after the expiration of a relevant limitation period: Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, 88 O.R. (3d) 401 (C.A.), at para. 17; and Klassen, at para. 26; Trudeau v. Cavanagh, 2, 2017 ONSC 4314, at para. 24.

81As stated by the Court of Appeal for Ontario in Loney v. John Doe, 2024 ONCA 748, at para. 17:

Where the delay between the initiation of proceedings and the filing of the motion to amend is “exceptional” or “inordinate”, courts will presume prejudice to the responding party: 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, 135 O.R. (3d) 681. This presumption can be rebutted by either an adequate explanation for the delay or evidence that there is no non-compensable prejudice based on the facts of the case: State Farm Fire, at para. 37.

82Where the delay in seeking an amendment is lengthy, courts will presume prejudice to the responding parties: Loney, at para. 58.

83The court has discretion to add a defendant after a limitation period has expired if the moving party can provide an adequate explanation of the delay or an absence of prejudice: Loney, at para. 59.

84The Defendants and Proposed Defendants assert that there has been exceptional or inordinate delay. The Plaintiff did not bring the motion to amend for seven years after the Deceased’s death.

85The Proposed Defendants submit that the essential facts giving rise to the claim against them were known to the Plaintiff, or at least obtainable by him with reasonable diligence, for years before he brought this motion. Therefore, he has no adequate explanation for the delay.

86Ms. Bitton further submits that she would suffer non-compensable prejudice because the Estate has been administered, and she has arranged her affairs accordingly on the understanding that the Plaintiff and her other children acknowledged the Purported Will and consented to the administration of the Estate.

87I am satisfied that the Plaintiff has provided an adequate explanation for the delay. He adduced evidence to show that he believed Ms. Bitton and Ms. Moyal when they said that they had found the Purported Will soon after the Deceased’s death. At that time, and when Ms. Moyal submitted the Purported Will to the court to obtain the CAET, the Plaintiff had no reason to question the authenticity of the Purported Will or to question Ms. Moyal’s approach to the administration of the Estate. The Plaintiff raised evidence to show that it was not until much later that he perceived that Ms. Moyal and Mr. Moyal were administering the Estate in a way that was contrary to the Deceased’s intentions, and in a way that was disadvantageous to the Plaintiff. At that point, he began to investigate the circumstances relating to the Purported Will. In my view, this is a plausible and adequate explanation for the delay. The Plaintiff’s evidence was not challenged by the Defendants or Proposed Defendants.

88If the Plaintiff’s explanation for the delay is adequate, he does not also have to show that there is no non-compensable prejudice based on the facts of the case. However, the Plaintiff submits that there is no non-compensable prejudice to the Defendants and Proposed Defendants in this case. Critical evidence, being the original Purported Will and the application for the CAET, remain intact. The witnesses, on whose evidence the Plaintiff relies, remain available to be cross-examined. Very few steps have been taken in the litigation.

89Ms. Bitton did not lead any evidence in support of her statement that she will suffer non-compensable prejudice from granting the motion if she is added as a party. Instead, she relied on the Plaintiff’s Amended Statement of Claim and his affidavits to draw inferences respecting steps that may have been taken in the Estate administration, including transactions involving property transfers to her, which she states, without evidence, are irreversible.

90I am satisfied that the Plaintiff has met his onus to rebut the presumption of prejudice by providing an adequate explanation for the delay, and by adducing evidence that there is no non-compensable prejudice based on the facts of the case. Though he is not required to meet both prongs of this test, in my view, he has.

91Accordingly, I find that the Defendants and Proposed Defendants have not adduced any evidence of actual prejudice to them if leave is granted to the Plaintiff to make the proposed amendments, and the Plaintiff has rebutted the presumption of prejudice as a result of the prima facie expiration of the limitation period and the delay in bringing this motion.

Disposition

92For the foregoing reasons, the Plaintiff’s motion is granted.

93Absent any non-compensable prejudice, r. 26.01 directs that the court shall grant leave to amend a pleading. Having found no non-compensable prejudice, the Plaintiff is granted leave to make the proposed amendments, as set out in the Amended Statement of Claim included as Schedule “A” to the Plaintiff’s Motion Record (found at Case Center page A2441).

94Rule 5.04(2) permits the court to add parties where there is no non-compensable prejudice. I exercise my discretion to add the Defendants and Proposed Defendants as parties.

Costs

95The Plaintiff has been successful on this motion, and he is presumptively entitled to his costs. The Plaintiff seeks costs, payable by Ms. Moyal and Ms. Bitton, on a full indemnity basis. Costs may be awarded on a full indemnity basis when the conduct of a party rises to the level of reprehensible or egregious. I do not find such conduct by either Ms. Moyal or Ms. Bitton respecting the Plaintiff’s motion.

96Having reviewed the Plaintiff’s costs outline and considered the principles relating to costs, as set out in r. 57.01(1) of the Rules, I am satisfied that the Plaintiff should be entitled to his costs on a partial indemnity basis, and I fix those costs at $56,470, inclusive of disbursements and HST. I find these costs to be fair and reasonable in the circumstances of this case. Based on the costs outlines submitted by the Defendants and the Proposed Defendants (other than Adam), the Plaintiff’s costs are well within the range that they could reasonably expect to pay. The costs are payable by Ms. Moyal and Ms. Bitton, on a joint and several basis, within 30 days.

B. Dietrich J.

Footnotes

1. 1The Plaintiff acknowledges that an issue at trial will be whether the claims in the action were discoverable prior to September 13, 2022, being two years prior to the issuance of the Statement of Claim. This is not an issue to be decided on this motion.
2. 2There is no allegation that the proposed amendments are scandalous, frivolous or vexatious, or that they fail to disclose a cause of action.
3. 3These matters are: 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 the remedy.