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[1] The Plaintiff brings this motion for an Order amending the Statement of Claim and for an Order extending time for service of the Statement of Claim. The proposed amended claim seeks to add a new party Defendant to the action, Rushell Knight (“Knight”).

[2] The motion record was served on Knight by regular mail in or around July 7, 2026.

[3] The relevant facts are quite straightforward. The underlying action arises from a motor vehicle accident that occurred on July 29, 2022 and involved three vehicles. According to the police report, the collision was a chain-reaction rear-end accident. The Plaintiff was a passenger in the lead vehicle. Knight was the driver of the second, or middle, vehicle. The driver of the third vehicle left the scene and remains unidentified.

[4] The Plaintiff initially retained a law firm by the name of Siddiqui Law Office to represent it. A Statement of Claim was commenced July 24, 2024.

[5] The Plaintiff retained a new lawyer, its current lawyer, on April 27, 2026.

[6] No evidence was adduced by the moving party concerning the status of the litigation between July 24, 2024 and April 27, 2026. In particular, there is no evidence as to whether any party actively defended the action during that period, what procedural steps were taken, or whether Knight had notice of the proceeding before service of this motion record.

[7] Additionally, no factum has been filed for this motion.

[8] The moving party relied on the fact that current counsel identified Knight as a potential party after receiving police productions pursuant to a Wagg order in May 2026, shortly after their retainer. That evidence goes no further than establishing when current counsel became aware of Knight's involvement. Counsel was unable to speak to the history of the file before their retainer, and no evidence was adduced from the Plaintiff or prior counsel.

[9] Mr. Bhopal’s submissions today suggested that their office received an incomplete file upon transfer. It should be made clear that the amount, quality and sufficiency of records available or not available to Mr. Mariani, Mr. Bhopal, or anyone at Diamond and Diamond Lawyers, is not in evidence.

[10] For the reasons that follow, the motion is denied.

Analysis

[11] The Plaintiff’s action was commenced two years after the accident in question. The proposed Defendant is only now being put on notice of this claim, more than two years after the presumptive limitation period has passed.

[12] The starting point on a motion to add a party to a lawsuit is Rule 5.04(2) of the Rules of Civil Procedure which states as follows:

5.04(2) 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.

[13] In contrast to Rule 5.04(2), which uses discretionary language, Rule 26.01 regulates when and how a party may amend its pleadings (see Huang v. T&T Supermarket, 2026 ONSC 4268 at para. 15) and uses mandatory language:

26.01 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.

[14] Both rules have the pre-requisite that there cannot be prejudice that cannot be compensated for by costs or an adjournment: Frohlick v. Pinkerton Canada Limited, 2008 ONCA 3 at para. 14.

[15] In my view, Rule 5.04(2) and Rule 26.01 are not distinct avenues with which to add parties to a proceeding, Rule 26.01 is qualified by Rule 5.04(2) when the amendment sought seeks to add a new party to the proceedings. R.S.J. Macleod confirmed that addition of parties requires leave under Rule 5.04(2): Li et al. v. Barber et. al., 2022 ONSC 1176 at para. 43.

[16] This qualification gives the Court discretion to determine whether a party should be added to the proceeding.

[17] The focus in Rule 5.04(2) is on prejudice. Where the presumptive limitation period has passed, the Limitations Act prohibits a party being added to an existing proceeding:

s. 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. 2002, c. 24, Sched. B, s. 21 (1).

[18] Prejudice is presumed when the limitation period has expired: Frohlick, at pp. 17-22.

[19] The evidentiary burden on a Plaintiff seeking to add a Defendant to an action after the apparent expiry of a limitation period has been framed by the Court of Appeal as follows, in Morrison v. Barzo, 2018 ONCA 979 at paras. 31 and 32:

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)….

Second, 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.

[20] The materials filed by the Plaintiff are wholly deficient. The Plaintiff relies on an affidavit by its current counsel, but the relevant inquiry is not when current counsel became aware of Knight's involvement. Rather, the issue is when the Plaintiff, or a person acting on the Plaintiff's behalf, first knew or ought reasonably to have known that Knight was involved in the accident and could potentially bear legal responsibility for it.

[21] The evidentiary record is silent on that issue. There is no evidence explaining when the Plaintiff became aware of Knight's involvement, what steps were taken to investigate the identity of potentially liable parties, or why Knight's involvement could not have been discovered earlier. Indeed, Knight is identified in the police report, a document that is ordinarily available to the parties shortly after an accident. The fact that current counsel may not have discovered Knight's involvement until May 2026 does not establish that the claim against Knight was not discoverable before then.

[22] In the absence of evidence from the Plaintiff addressing discoverability, I am unable to conclude that the limitation period had not expired before the motion was brought. To the contrary, the record provides no basis upon which to displace the inference that the Plaintiff knew, or ought reasonably to have known, of Knight's involvement in the accident within two years of its occurrence.

[23] The presumption of prejudice will be determinative unless the party seeking the amendment can rebut the presumption: Frohlick, at para. 17. Moreover, the materials filed by the moving party do not address prejudice, let alone provide evidence capable of rebutting the presumption of prejudice that arises where a claim is advanced against a proposed defendant after the expiry of the applicable limitation period.

[24] Recognizing that the evidentiary threshold on a motion such as this is low (see George v. Doe, 2026 ONSC 2621 at para. 14), the Plaintiff has nevertheless failed to raise any issue of fact or credibility on the question of discoverability or prejudice.

[25] The motion is therefore dismissed.

Abdelhadi v. Doe et al, 2026 ONSC 4715

Case Summary

ENDORSEMENT

Abdelhadi v. Doe et al, 2026 ONSC 4715

Case Summary

ENDORSEMENT