SUPERIOR COURT OF JUSTICE - ONTARIO
RE: WU et al v. MEGA INTERNATIONAL COMMERCIAL BANK (CANADA) et al
BEFORE: ASSOCIATE JUSTICE D. MICHAEL BROWN
HEARD: March 6, 2026
COUNSEL: Edison Wu, moving party/plaintiff, appearing on his own behalf
Mark Ross for the responding party/defendant Mega International Commercial Bank (Canada)
REASONS FOR DECISION
1This is a motion by the plaintiffs, Edison Wu and Nancy Wu, seeking leave to amend their statement of claim to add new allegations and causes of action and seeking to strike and exclude certain documents from evidence at trial. The plaintiffs bring this motion almost two years after the fourth adjournment of the trial in this 2012 action. For the reasons that follow the motion is dismissed.
Background
2This action was commenced in 2012 and is being tried together with two related actions. The three actions all arise from the possession and sale of two buildings located at 241-247 Spadina Avenue in Toronto (the Property). The defendant Mega International Commercial Bank Co. Ltd. (“Mega”) held a first mortgage on the Property. The first mortgage was guaranteed by two individuals, John Chin Lee and Mary Ning-Sheng Huang. The mortgage went into default and a Notice of Sale Under Mortgage was issued in February 2007. Mega was first mortgagee and there were eight subsequent mortgages registered on title to the Property at that time. The plaintiffs Edison Wu and his mother Nancy Wu were together the fourth mortgagee on title.
3In October 2007, Edison Wu and others took an assignment of the third mortgage on the Property. In 2009, Edison Wu incorporated Dustara Holdings Limited (“Dustara”) as the sole officer, director and shareholder of the company. Dustara took an assignment of the second mortgage on the Property on April 30, 2009. As of the end of April 2009, Edison Wu and Nancy Wu were directly or through Dustara the second, third and fourth mortgagees on the Property.
4Mega ultimately sold the two buildings in September and October 2010 at a loss. The proceeds of sale did not cover the amounts owing under the first mortgage, so there were no funds remaining to satisfy any of the subsequent mortgages. In 2011, Mega commenced the action bearing court file no. CV-11-417585 against the John Chin Lee and Mary Ning-Sheng Huang, the guarantors of the first mortgage (the Mega Action). In 2012, Dustara, as second mortgagee, commenced the action bearing court file CV-12-464231 (the Dustara Action) against Mega asserting that the 2010 sale of the buildings was improvident. Shortly thereafter Edison Wu and Nancy Wu as fourth mortgagees commenced this action against Mega also seeking damages for the alleged improvident sale. The plaintiffs also named as defendants Hing Loong Investments Limited (the mortgagor on the fourth mortgage) and Lee and Huang (as guarantors of the fourth mortgage) seeking damages from those defendants for the amounts outstanding on the fourth mortgage.
5On July 22, 2015, on a motion by Mega, Master Pope made an order that this action be tried together with the Mega Action and the Dustara Action and set a joint litigation timetable for the actions. Joint documentary and oral discoveries were conducted in the three actions in 2016. In accordance with the litigation timetable, the actions were set down for trial in December 2016 (the Mega Action) and January 2017 (this action and the Dustara Action).
6The three actions were originally scheduled for trial in March 2020, but the trial was adjourned due to the COVID pandemic. The trial was rescheduled for June 2021, but was adjourned again, this time due to the lack of availability of a trial judge. The trial was next scheduled for January 2023, but that was adjourned because Dustara’s lawyer had brought a motion to be removed from the record. A fourth trial date was scheduled for January 29, 2024, but that was adjourned on consent at a pre-trial before Justice Glustein on January 19, 2024.
7The January 2024 trial was adjourned, in part, because Dustara, which had recently retained a new lawyer, announced its intention to amend its statement of claim in the Dustara Action, to seek the removal of Mr. Goodman as Mega’s lawyer of record for an alleged conflict of interest, and to challenge the admissibility of the Cornwall Appraisal Report (produced by Mega) due to its reliance on an engineering report prepared by Coby Sucher (the “Sucher Report”). Although Mr. Wu attended the pre-trial before Justice Glustein, there was no discussion at the time of any intention by the plaintiffs in this action to amend their statement of claim or to challenge the admissibility of any evidence.
8At the conclusion of the January 2024 pre-trial, Justice Glustein ordered a timetable for the next steps in the actions that provided, among other things, that Dustara would (a) deliver its amended pleadings and (b) deliver a letter to the bank's counsel setting out (1) the alleged conflict of Mr. Goodman and (2) the basis on which the Cornwall exhibit (the Sucher Report) is challenged, by January 26, 2024. The timetable gave Mega until February 16, 2024 to respond.
9On January 26, 2024, the lawyer for Dustara, Mr. Daffern, wrote to counsel for Mega setting out the basis for Mr. Goodman’s alleged conflict of interest and the basis for the alleged inadmissibility of the Sucher Report and the Cornwall report that relied on the Sucher Report. Mr. Daffern also provided Dustara’s draft Amended Statement of Claim to Mega together with a form of consent. His letter indicated that if Mega did not consent to the amendments to the Statement of Claim, Dustara would be bringing a motion of leave to amend.
10On February 16, 2024, Mr. Goodman responded to Mr. Daffern advising that Mega would not consent to the removal of the Cornwall Report or the Sucher Report, that Mega did not agree Mr. Goodman was in any conflict of interest, and that Mega would not consent to the proposed amendments to Dustara’s Statement of Claim. Mr. Goodman’s correspondence noted that the amendments were being proposed more than 11 years after the commencement of the Dustara Action.
11On February 20, 2024, Mr. Daffern wrote to Mr. Goodman advising that Dustara would be bringing motions for the removal of Mr. Goodman as lawyer of record and for leave to amend Dustara’s Statement of Claim. Despite this advice and multiple follow-ups from Mr. Goodman, no such motions were ever scheduled or served by Dustara. According to the affidavit of Mr. Goodman on this motion, he has heard nothing from Mr. Daffern in respect of Dustara’s threatened motions since August 2024.
This motion
12The plaintiffs served a Notice of Motion for this motion on or around June 30, 2025. The Notice of Motion seeks an order granting leave to amend the Statement of Claim “to include new allegations, including but not limited to:
Fraud in the form of misappropriation of funds;
Collusion;
Corruption and/or receipt of kickbacks·
Breach of fiduciary duty;
Breach of trust;
Relief under the doctrine of unclean hands including the right to pursue clawback remedies;
Liquidated and punitive damages arising from the above allegations.”
13The Notice of Motion further seeks orders striking or excluding “the expert reports authored by Colby Sucher … on the basis that the reports constitutes [sic] inadmissible hearsay and was not subject to cross-examination, the author being deceased” and striking or excluding “any appraisals or valuations relying on or derived from the said hearsay reports”.
The motion for leave to amend pleadings
14The plaintiff’s Notice of Motion does not include or identify any new allegations of fact for their proposed amended pleading. Although the Notice of Motion references a proposed Amended Statement of Claim, it was not appended to nor included with the Notice of Motion that was served. The plaintiffs did not serve a proposed Amended Statement of Claim until November 28, 2025, attached as an exhibit to the affidavit of Edison Wu included in the plaintiffs’ motion record. The proposed amended pleading adds new causes of action in “civil conspiracy, gross negligence (in the alternative), mismanagement, breach of duty as mortgagee in possession, bad faith, waste”. It also adds a claim for punitive, exemplary, and aggravated damages.
15The proposed Amended Statement of Claim also includes 12 new paragraphs containing new allegations of fact relating to the new causes of action, none of which were included in their notice of motion, including new factual allegations relating to:
Mega’s alleged failure to maintain and repair the roof on the building;
Mega’s alleged failure to stop or mitigate improper wastewater disposal by a tenant;
Mega’s alleged failure to collect TMI (taxes, maintenance and insurance) from a tenant;
Mega’s alleged improper approval of expenses from a contractor;
Mega’s alleged failure to implement and maintain certain financial controls in relation to the payment of contractors; and
Mega’s alleged collusion with the ultimate purchasers of the property.
16All of the new allegations in the proposed Amended Statement of Claim relate to the period of time when Mega was in possession of the Property, from 2007 until the sale of the buildings in 2010.
17Many of the new causes of action listed in the plaintiffs’ Notice of Motion, including fraud, breach of fiduciary duty and breach of trust, are not included in the proposed Amended Statement of Claim. There are also claims in the proposed Amended Statement of Claim, such as gross negligence and bad faith, that are not identified or referenced in the plaintiffs’ notice of motion. In light of these differences and given the lack of any proposed new allegations of fact in the plaintiffs’ notice of motion, on this motion I have considered only those proposed amendments that are included in the draft proposed Amended Statement of Claim that was included in the plaintiff’s motion record. Absent accompanying allegations of fact, there is no basis for the court to determine whether leave should be granted for the amended or added claims as vaguely described in the plaintiff’s notice of motion.
Motion to amend pleadings – legal framework
18Rule 26.01 of the Rules of Civil Procedure provides:
On a 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.
19Rule 26.01 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: Klassen v. Beausoleil, 2019 ONCA 407, at para. 25; Polla v. Croatian (Toronto) Credit Union Limited, 2020 ONCA 818 at para 32..
20Mega opposes the motion for leave to amend on the basis that granting leave would result in non-compensable prejudice to Mega arising from the plaintiffs’ inordinate delay in bringing the motion and from the expiry of the limitation periods applicable to the plaintiffs’ proposed new claims.
Inordinate delay in bringing the motion
21In cases where there has been inordinate delay in seeking an amendment to the pleadings, the presumption in favour of granting leave shifts to a presumption that non-compensable prejudice will result if leave is granted: 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42 at para 36. As the Court of Appeal explained in Family Delicatessen Ltd. v. London (City), 2006 CanLII 5135 (ON CA) at para 6:
There is no justification for the inordinate delay in bringing the motion to amend the statement of claim. While delay is not in and of itself a basis for refusing an amendment, there must come a point where the delay is so long and the justification so inadequate that some prejudice to the defendants will be presumed absent a demonstration by the party seeking the amendment that there is in fact no prejudice despite the lengthy and unexplained delay.
22The presumption of non-compensable prejudice arising from inordinate delay is rebuttable. Where the moving party provides an adequate explanation for the delay or tenders evidence that there is no non-compensable prejudice, the presumption will be rebutted: 1588444 Ontario, at para. 37.
23The plaintiffs bring this motion for leave to amend the statement of claim more than 15 years after the events that gave rise to the litigation, more than 13 years after the action was commenced and more than eight years after the plaintiffs set this action down for trial. This is an inordinate delay by any measure.
24Ontario courts have found shorter delays to give rise to a presumption of prejudice. In 1588444 Ontario Ltd. the Court of Appeal upheld a motion judge’s finding that a motion to amend a pleading brought eight years after the commencement of the litigation was an inordinate delay that triggered a presumption of prejudice (at para. 44). In Horani v. Manulife Financial Corporation, 2023 ONCA 51, the Court of Appeal found a presumption of prejudice where the appellants were seeking leave to amend their pleading more than seven years after the incident in question and four years after the action had been set down for trial. In Broome v. Western Assurance, 2023 ONSC 1732, R.S.J. Edwards found that the plaintiff’s delay in bringing a motion to amend the claim nine years after the action had been commenced was “so egregious that prejudice can be presumed” (at para. 18).
25The plaintiffs’ inordinate delay in bringing this motion gives rise to a presumption of non-compensable prejudice to the defendant, Mega. While that presumption is rebuttable, the plaintiffs have failed to rebut the presumption. The evidence led by the plaintiffs on this motion consists of two affidavits sworn by Edison Wu on November 28, 2025 and February 9, 2026 respectively.
The plaintiffs have not adequately explained the delay
26In his November 28, 2025 affidavit, Mr. Wu asserts that the amendments “are necessary to comply with Justice Glustein’s direction” at the pre-trial on January 19, 2024. I disagree. Justice Glustein directed Dustara to provide its amended Statement of Claim by January 26, 2024, one week after the pre-trial. There was no direction relating to any amended claim from the plaintiffs in this action.
27Further, Justice Glustein was not granting leave to Dustara to amend its Statement of Claim – there was no motion before him seeking such relief nor had any specific amendments yet been proposed. The clear intent of the Justice Glustein’s direction was that Dustara was to provide its proposed amended pleading to the defendants for their review. That appears to be the understanding of Dustara’s lawyer at the time who sought Mega’s consent to draft Amended Statement of Claim provided on January 26, 2024, failing which Dustara intended to bring a motion for leave.
28Justice Glustein set a tight timetable for the steps to completed following the pre-trial with a view to having the parties return to trial scheduling court by April 30, 2024 to set a new trial date. The plaintiffs’ delivery of their own proposed Amended Statement of Claim more than 22 months after the pre-trial is entirely inconsistent with Justice Glustein’s direction.
29Mr. Wu’s affidavits provide very little evidence regarding the reasons for the delay in bringing this motion. His first affidavit states that the amendments arise from facts discovered “after the commencement of the action”, which does not explain the delay of 13 years since then. In his second affidavit Mr. Wu says that any delay “was significantly exacerbated by the Defendants' tactical decisions, including the merging of proceedings which increased complexity and stalled progress as noted by Justice Vermette.” This is a reference to Justice Vermette’s endorsement of August 3, 2021 on a motion by Mega to dismiss the counterclaims and crossclaim brought by the defendant John Chin Lee in this action and the Mega Action. In dismissing Mr. Lee’s counterclaims and crossclaim, Justice Vermette considered whether to defer the dismissal to allow Mr. Lee to revive the defendant Hing Loong Investments Limited (now dissolved) so that it could bring the counterclaims on its own behalf.
30Justice Vermette noted that the trial in the actions has already been adjourned once, in part because of the issues raised in Mr. Lee’s counterclaim, and held that “it would not be in the interests of justice to further delay this matter.” The delay referred to by Justice Vermette relates to Mr. Lee’s involvement in the litigation. Mr. Lee was also named by the plaintiffs as a defendant in this action, so this is not a delay that arises primarily from the merger of the proceedings. In any event, the delay referenced by Justice Vermette is the delay in the litigation generally, it does not explain the plaintiff’s delay in bringing a motion to amend pleadings.
31Finally, in his second affidavit, Mr. Wu states “the delay in "pinpointing responsibility" is a direct result of the Defendants withholding material financial documents that were, and remain, under their exclusive control.” Although not explicitly stated in the affidavit, the implication is that new facts alleged in the proposed amended pleading come from documents that were never produced. This statement is not supported by the evidence on the record before me.
32The material financial documents that Mr. Wu references in his second affidavit are documents that were listed in Mega’s affidavit of documents served on the parties in this action and the related actions in 2016. Mr. Wu claims that Mega failed to serve copies of the financial documents on him in his personal capacity in this action in 2016. Mega denies this. However, regardless of whether Mega served a complete set of its productions on Mr. Wu in his personal capacity in 2016, it is clear that he has nevertheless had possession of, or access to, the complete productions since that time.
33Mr. Wu relies on an email exchange he had with the lawyer for Mega in 2019 wherein he claimed that he only received from Mega one of three boxes of the productions from Mega’s affidavit of documents and requested production of the other two boxes. However, in the same email he states that he received the missing Mega documents from Mr. Lee just before the initial cross-examination (also in 2016). In the email Mr. Wu requests that Mega send the missing documents to Mr. Lee to replace Mr. Lee’s copies because he has marked up the set that Mr. Lee gave to him. The email makes it clear that Mr. Wu had possession of the missing documents since they were provided to him by Mr. Lee.
34In addition, there is no dispute that Mega provided a complete set of its productions to Dustara’s lawyers in 2016. Prior to this motion, the plaintiffs in this action had not brought any motion or initiated any substantive steps in the actions on their own. Instead, the plaintiffs have let Dustara and the Dustara Action take the lead. The plaintiff Edison Wu is the sole owner, officer and director of Dustara and Dustara has been represented by a lawyer in the Dustara Action throughout the litigation. In his pre-trial endorsement, Justice Glustein described Mr. Wu as the “instructing client” in the Dustara Action. In his cross-examination on this motion Mr. Wu referred to Dustara’s lawyers as his lawyers. He conceded on cross-examination that he could have reviewed Mega’s productions at Dustara’s lawyers’ offices.
35A most, the plaintiffs have explained why they delayed bringing this motion until after Mega served its affidavit of documents in 2016. They have not provided an adequate explanation for the 9-year delay from that production until the service of the proposed Amended Statement of Claim in November 2025.
The plaintiffs have not tendered evidence that there is no non-compensable prejudice
36As the Court of Appeal held in Family Delicatessen, prejudice to the responding party will be presumed “absent a demonstration by the party seeking the amendment that there is in fact no prejudice despite the lengthy and unexplained delay.” (at para. 6) The Court of Appeal explained the rationale for requiring this evidence in 1588444 Ontario Ltd., at para. 6:
This makes sense as a matter of fairness. It would be very difficult for a responding party to prove, for example, the generalized prejudice that witnesses' memories will be diminished after a lengthy passage of time.
37The type of evidence required from the moving party to rebut the presumption of prejudice is evidence that steps have been taken to preserve evidence, such as the preservation of key documents or the taking of witness statements: 1588444 Ontario Ltd., at para 46. Aside from bald denials of prejudice, the plaintiffs’ only evidence that the defendants will not suffer prejudice is the following statement in Mr. Wu’s first affidavit: “Defendant suffers no prejudice from the amendments, as the facts arise from Mega Bank’s own records, conduct, omissions, and internal documentation.”
38The plaintiffs’ evidence highlights, rather than addresses, the non-compensable prejudice to Mega from the proposed amendments. As the proposed amendments relate to the conduct and omissions of Mega, evidence will be required from Mega’s own witnesses to respond to these new claims. The plaintiffs have provided no evidence that the evidence of these witnesses of events that occurred over 15 years ago has been preserved. The evidence of Mega on this motion is that the individuals at Mega with relevant knowledge are no longer with the company.
39The new facts alleged in the proposed Amended Statement of Claim primarily relate to Mega’s dealings with non-parties to the litigation for whose conduct the plaintiffs allege Mega is liable to the plaintiffs. The plaintiffs have provided no evidence that the documentary or oral evidence of these non-parties has been preserved nor that the non-parties named in the proposed amended pleading are even available to give evidence in this proceeding.
40The plaintiffs have not provided an adequate explanation for the inordinate delay in bringing this motion and have not adduced evidence to establish that Mega would not suffer non-compensable prejudice by reason of the amendments. The plaintiffs have failed to rebut the presumption of non-compensable prejudice to the defendants. I would dismiss the plaintiffs’ motion to for leave to amend on this basis alone.
41Although I have dismissed the plaintiff’s motion to amend based on their inordinate delay in bringing this motion, I will also consider Mega’s related objection to the motion based on the expiry of the limitation period.
Expiry of limitation period
42The expiry of a limitation period is one form of non-compensable prejudice. A party cannot circumvent the operation of a limitation period by amending their pleadings to add additional claims after the expiry of the relevant limitation period: Klassen at para. 26; Polla at para 32.
43An amendment will be statute-barred if it seeks to assert a new cause of action after the expiry of the applicable limitation period. In this regard, the case law discloses a "factually oriented" approach to the concept of a "cause of action", namely, a factual situation the existence of which entitles one person to obtain from the court a remedy against another person: Klassen, at para. 27; 1100997 Ontario Ltd. v. North Elgin Centre Inc., 2016 ONCA 848, at paras. 19-23, 33.
44The limitation period for the new claims made in the plaintiffs’ proposed Amended Statement of Claim expires two years after the day the claims were discovered, per s. 4 and s. 5 of the Limitations Act, 2002:
Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
(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).
(2) 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.
45Per subsection 5(2) of the Limitations Act, 2002, the limitation period starts to run on the day the act or omission underlying the claim took place, unless the plaintiff can demonstrate that the claim was not discoverable until a later date. The evidentiary hurdle for a plaintiff to demonstrate discoverability on a motion to amend a statement of claim is not high. The plaintiff need only lead sufficient evidence to demonstrate that discoverability is a triable issue. Justice Barnes summarized the case law on the plaintiff’s evidentiary burden in Sukhdeo v. McDonald’s Restaurant, 2018 ONSC 6782:
24The plaintiff must lead evidence to demonstrate efforts she made to ascertain the information which forms the subject of the amendment and explain why even with due diligence this information could not have been obtained within the limitation period: Hamilton (City) v. Svedas Koyanagi Architects. Inc. [2009] O.J. No. 1039 at para. 11, Ont. S.C.J. In effect, the plaintiff has the onus to provide an evidentiary record to demonstrate that discoverability is a triable issue; the evidentiary threshold is not an onerous one; and it is only in rare circumstances that the issue of discoverability is resolved on a motion to add a party: Wakelin v. Gourley 2005 CanLII 23123 (ON SC), [2005] O.J. No. 2746 (Ont. Master) aff’d [2006] O.J. No. 1552 (Ont. Div. Ct.). If the plaintiff fails to demonstrate that discoverability is a triable issue then the amendment will be refused: Wong v. Alder, 2004 CanLII 8228 (ON SC), [2004] O.J. No. 1575 70 O.R. (3d) 460 (Ont. Master) at paragraph 45-46, aff’d 2004 CanLII 73251 (ON SCDC), 76 O.R. (3d) 237 (Ont. Div. Ct.). The focus is on the actions of the plaintiff not the actions of counsel: Conflitti et al v Dhaliwal et. al., 2010 ONSC 3218, [2010] 194 A.C.W.S. (3d) 769, (Ont.Sup. Ct.) at paragraph 33.
46A motion to amend a claim need only be served within the limitation period. It need not also be argued and determined prior to the expiry of the limitation period: Philippine v. Portugal, 2010 ONSC 956 (Div. Ct.); Computer Enhancement Corporation v. J.C. Options, 2013 ONSC 4548 at paras. 15-20. Although the date of service of the motion is often the date of service of the notice of motion, in my view service of the motion in this case did not occur until the service of the motion record. The plaintiffs’ June 30, 2025 notice of motion was so devoid of detail with respect to the proposed amended pleading that it did not put Mega on notice of the amendments being sought. Such notice was not provided until the proposed Amended Statement of Claim was served with the plaintiffs’ motion record on November 28, 2025. Accordingly, for the purpose of calculating the running of the limitation period, I find that the motion for leave to amend the statement of claim was not served on Mega until November 28, 2025.
47The plaintiffs’ proposed amendments will be barred by the Limitations Act 2002 unless the plaintiffs demonstrate that the new claims were not discoverable until November 28, 2023, two years before the service of the motion. On this motion, the plaintiffs must lead evidence demonstrating that there is a triable issue as to whether the new claims in the proposed Amended Statement of Claim were discoverable on or before that date. Although this is a relatively low bar, the plaintiffs have failed to meet it.
48The plaintiffs have provided little evidence on the issue of discoverability on this motion and the evidence they have provided is general and vague. The plaintiffs’ evidence on this motion does not identify a specific date or even a year in which they say any of the new claims in their amended pleading were discoverable. Mr. Wu’s affidavit states only that the amendments arise from facts discovered after the commencement of the action (in 2012). Although his affidavit lists some of the facts he says were discovered after the claim was commenced, he does not provide any details as to how, or specifically when, any of these facts were discovered. More importantly, the plaintiffs have not filed any evidence that would support a finding that any of the new claims in the proposed amended pleading were not discoverable until November 28, 2023 or later.
49As noted earlier in these Reasons, Mr. Wu’s evidence on cross-examination was that all of the new claims in the proposed amended pleading are based on facts taken from documents that were included in Mega’s Affidavit of Documents. Mr. Wu asserted on cross-examination that he did not become aware of some of the facts contained in these documents until October 2023 when he says he “thoroughly” reviewed all of Mega’s productions for the first time. I note that even if some of these claims were not discovered until October 2023 as Mr. Wu asserts, the limitation period would still have expired before this motion was served on November 28, 2025.
50Per subsection 5(1)(b) of the Limitations Act, 2022, discovery occurred on the day on which a reasonable person with the abilities and in the circumstances of the plaintiffs first ought to have known about the claims. In this case, discovery occurred not on the day that Mr. Wu first decided to conduct a thorough review of the documents from Mega’s affidavit of documents, but on the day he first had reasonable access to those documents. Mr. Wu’s evidence is that Dustara’s lawyers have had Mega’s affidavit of documents and productions since April 2016 and that as the instructing client for Dustara he could have accessed and reviewed these documents at any time. Further, Mr. Wu’s affidavit evidence and his evidence on cross-examination is that he had actual possession of the productions from Mega’s affidavit of documents (borrowed from Mr. Lee) until April 2019 and then again in 2021, 2022 and 2023.
51There is no evidence in the record before me that would support a finding that any of the new claims in the plaintiffs’ proposed Amended Statement of Claim were not discoverable until November 28, 2023 or later. The plaintiffs have not demonstrated that discoverability is a triable issue. I find that the proposed amendments are statute-barred as they assert new causes of action after the expiry of the limitation period and that leave to amend would therefore cause prejudice to Mega that cannot be compensated by costs or an adjournment. I would dismiss the motion for leave to amend the statement of claim on this basis as well.
Motion to strike or exclude the Sucher Reports
52The plaintiffs seek to strike or exclude from evidence two engineering reports prepared by Coby Sucher dated October 29, 2007, as well as any appraisals or evaluation relying on the Sucher Reports. The plaintiffs rely on Rule 53.03 and submit that the Sucher Reports should be excluded because Mr. Sucher is now deceased and can no longer be cross-examined. The plaintiffs submit that the Sucher Reports are inadmissible hearsay. Mega opposes the motion on the basis that it is premature and that determinations regarding the admissibility or exclusion of this evidence should be left to the trial judge. I agree.
53As a starting point, I note that the plaintiffs have not filed into evidence on this motion copies of either of the Sucher Reports nor any of the appraisals or valuations they seek to strike or exclude. All I have before me is an excerpt from one of the Sucher Reports that was marked as an exhibit to Mr. Wu’s cross-examination. I would dismiss the motion on this basis alone. The court cannot rule on the admissibility of evidence that is not before it.
54I agree with Mega that the Plaintiffs’ reliance on Rule 53.03 on this motion is misplaced. While the reports authored by Mr. Sucher are included in Mega’s productions, Mr. Sucher has not been proffered as a Rule 53.03 expert. As Mega does not intend to rely on Sucher as an expert witness, Rule 53.03 is not engaged.
55The fact that Mr. Sucher is deceased is not determinative of the admissibility of the Sucher Reports. The determination of whether the reports are hearsay will depend on how they are relied on by Mega at trial. They might not be relied upon for the truth of their contents. I agree with Mega’s submission that to the extent that the Sucher Reports are relied on at trial as evidence of what informed Mega Bank’s observations and decisions at the time, or as evidence of steps which Mega Bank took to discharge its duties as a mortgagee in possession, they are not hearsay.
56Even to the extent that the Sucher reports are relied on at trial for the truth of their contents, statements made by individuals who are not available to give evidence at trial may be admissible where the circumstances under which the statements were made satisfy the criteria of necessity and reliability, subject always to the residual discretion of the trial judge to exclude the evidence when its probative value is slight and undue prejudice might result: R. v. Carroll, 2009 CanLII 57552 (ON SC) at para. 14.
57The admissibility of the evidence is ultimately a question for the trier of fact: 2041219 Ontario Ltd. v. Agricorp, 2021 ONSC 1058 at paras. 24-25. “Pre-emptive” motions to strike evidence are reserved for only the clearest of cases: 1196303 Ontario Inc. v. Glen Grove Suites Inc., 2012 ONSC 758 at para. 16.
58As Brown J. (as he then was) stated in 1196303 Ontario Inc. in the context of a motion to strike affidavits on a motion:
… [I]t is important that the hearing judge be asked to consider all evidentiary issues concerning competency, admissibility and weight. In my view it would be inappropriate for a judge who will not hear the motion to purport to bind the hearing judge by determining on a limited and incomplete record issues concerning the receipt or admissibility of evidence prior to hearing the motion or application. (at para. 15)
59The admissibility of the Sucher Reports and any appraisal or valuation relying on the Sucher Reports is properly a matter for determination by the trial judge. The plaintiffs’ motion to strike or exclude this evidence is premature. I would dismiss the plaintiff’s motion on this basis as well.
Disposition
60The plaintiffs’ motion for leave to amend the statement of claim and to strike or exclude the engineering reports of Colby Sucher is dismissed.
Costs
61As Mega was entirely successful on this motion it should have its costs. In its costs submissions Mega sought partial indemnity costs in the amount of $21,420.17 if successful on the motion, based on a Costs Outline circulated at the hearing. Mr. Wu made no substantive submissions on the quantum of costs sought by Mega.
62Having reviewed the fee items, hours summary, rates and disbursement details provided by Mega in its Costs Outline, I am satisfied that they are reasonable, justified and form the basis for an appropriate costs award. Applying the circumstances of this case to the factors set out in Rule 57, I am satisfied that it is fair and reasonable and within the reasonable expectations of the parties for the plaintiffs, Edison Wu and Nancy Wu, to pay costs of the motion to the defendant, Mega International Commercial Bank (Canada), on a partial indemnity scale fixed in the amount of $21,420.17 (all inclusive) within 30 days of the release of these Reasons. This costs order is effective immediately without further formality.
D. Michael Brown, Associate Judge
DATE: August 5, 2026