MOTION HEARD: July 28, 2026
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HELENA GUERGIS
Plaintiff
- and -
ARTHUR HAMILTON, CASSELS BROCK & BLACKWELL LLP and THE HONOURABLE SHELLY GLOVER.
Defendants
BEFORE: Associate Justice Kamal
COUNSEL: Brian Shiller and Stephen Victor, for the Plaintiff
Michael Wilson and Noah Lew, for the Defendant, The Honourable Shelly Glover
REASONS FOR DECISION
1. Time does not automatically equal prejudice. When requesting to amend a pleading, there may be a presumption of prejudice with an inordinate passage of time. However, that prejudice needs to be considered in light of the amendment being sought. When the amendment is simply to provide clarity for a position that was already pleaded, there is no presumption of prejudice, or the presumption may be easily rebutted.
2. This is a motion by the Defendant, the Honourable Shelly Glover (“Glover”), seeking leave to amend her statement of defence. Ms. Glover brings this motion approximately 15 years after the action was commenced. The underlying action against Ms. Glover is a defamation action.
3. The specific (and only) amendment to the statement of defence is as follows:
Glover relies upon the Libel and Slander Act, R.S.O. 1990, c. L. 12, including sections 5 and 6 thereof which bar the plaintiff’s claim given her failure to deliver a notice of libel by June 28, 2010 and failure to commence this action by August 16, 2010.
4. For the reasons that follow, the motion is granted, subject to terms.
Background
5. The Plaintiff commenced this action by way of Statement of Claim issued December 22, 2011.
6. Before a defence was filed by Ms. Glover, all defendants launched motions to strike.
7. On August 24, 2012, Justice Hackland dismissed the action against all defendants other than Hamilton and Cassels Brock.
8. The Ontario Court of Appeal reversed the dismissal of the action against Ms. Glover on June 28, 2013.
9. A series of motions occurred thereafter.
10. The Plaintiff filed a Second Fresh as Amended Statement of Claim (“Amended Claim”) on November 23, 2016, which revised the defendants in this action.
11. The Amended Claim was only against the current defendants: Mr. Hamilton and Cassels Brock & Blackwell LLP, and Ms. Glover.
12. The Plaintiff alleges that, “on May 16, 2010, Glover appeared on a broadcast of CTV's Question Period and engaged in a panel debate concerning the then ongoing testimony regarding the Plaintiff before the Standing Committee on Government Operations and Estimates.” The Plaintiff alleges that Ms. Glover’s comments on CTV’s Question Period “were defamatory of the Plaintiff… having regard to their plain and ordinary meaning [and] the tone and context of the broadcast”.
13. Ms. Glover delivered her Statement of Defence on January 30, 2017. In her Statement of Defence, Ms. Glover pled:
Glover relies upon the Libel and Slander Act, R.S.O. 1990, c. L. 12.
14. This is the paragraph now being sought to be amended.
15. Examinations for Discovery took place in December 2017, although there were further discoveries in late 2025 and early 2026 related primarily to medical information and some liability issues related to Hamilton. This is further outlined below.
16. Based on the evidence before me, it does not appear that the Plaintiff questioned Ms. Glover on the pleading that says “Glover relies upon the Libel and Slander Act, R.S.O. 1990, c. L. 12.”
17. The action was dormant as against Ms. Glover between December 2017 and 2024.
18. On October 15, 2024, Ms. Glover changed counsel, and on January 3, 2025, she brought a Summary Judgment Motion and swore an affidavit dated January 3, 2025.
19. On February 10, 2025, Ms. Glover served and filed her Pre-trial Conference Memorandum stating that her Statement of Defence did not require amendment, and she wished to have her Summary Judgment Motion set down for a hearing.
20. The Summary Judgment Motion was never set down.
21. On October 29, 2025, Ms. Glover served a proposed Amended Statement of Defence setting out the requested amendment.
22. The Plaintiff did not consent to the amendment.
23. Ms. Glover offered to attend for further examination for discovery on the proposed amendments in the Amended Defence. Plaintiff’s counsel did not accept this offer, but asked that the motion be brought before trial so “the parties know where they stand prior to the trial date”.
24. The trial is currently scheduled to commence on January 4, 2027.
25. Interestingly, since delivery of the proposed Amended Defence, the litigation has continued through a series of additional productions, discoveries, and procedural attendances:
a. On November 14th and 28th, 2025, the Plaintiff produced medical records and what the Plaintiff’s counsel described as a “Medical Report”.
b. On November 21, 2025, the Plaintiff delivered a supplementary affidavit of documents disclosing 47 new Schedule “A” productions, all dating from 2010- 2012.
c. On November 25, 2025, the Plaintiff attended at a further examination for discovery. The Plaintiff answered questions on the medical records she had produced throughout 2025, but refused to answer questions regarding any of the documents disclosed for the first time in her supplementary affidavit of documents.
d. On December 2, 2025, the Plaintiff advised the Defendants that an adjournment of the trial was required because of a health issue affecting the family of one of the Plaintiff’s lawyers.
e. On December 5, 2025, the parties attended a case conference before Justice Williams, at which time the trial was adjourned, and the Plaintiff was ordered to attend at a further examination for discovery to answer questions arising from the documents first produced on November 21, 2025. Following the attendance, the parties were advised by the court that the earliest available trial date was January 4, 2027.
f. On January 27, 2026, the Plaintiff served a Further Supplementary Affidavit of Documents disclosing a further 66 new Schedule “A” productions, all dated from 2006 to 2013.
g. On February 6, 2026, the Plaintiff attended at a further examination for discovery. At that examination, Plaintiff’s counsel advised that the Plaintiff had located further records that the Plaintiff intended to subsequently produce.
h. On March 3, 2026, the Plaintiff produced further records (audio recordings from 2010) first disclosed during her February 6, 2026 examination for discovery.
i. On March 25, 2026, the Plaintiff delivered answers to undertakings from her February 6, 2026 examination for discovery.
j. On April 16, 2026, the Plaintiff delivered additional answers to undertakings from
her February 6, 2026 examination for discovery.
Law and Analysis
Legal Framework of the Action
26. This claim arises from an alleged broadcast libel that occurred more than 16 years ago.
27. There does not appear to be a dispute that this action is about an alleged broadcast.
28. The Libel and Slander Act states the following in sections 5(1) and 6:
Notice of action
5 (1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.
Limitation of action
6 An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action.
Motion to amend pleadings – legal framework
29. It is trite law that the court is required to grant leave to amend a pleading at any stage of an action on such terms as are just unless prejudice would result that could not be compensated for by costs or an adjournment.
30. Rule 26.01 of the Rules of Civil Procedure specifically states that “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.”
31. A party requires leave of the court to amend pleadings, but leave is presumptively to be granted. With limited exceptions, amendment of a pleading is not an exercise in weighing evidence or prejudging the merits of the action. It does, however, involve examining whether, as a matter of law, the amendment raises a tenable claim and whether or not it has been properly pleaded in the sense of complying with the applicable rules. There is little point in permitting an amendment that could promptly be struck under Rule 25.11. See Cadieux (Litigation Guardian of) v. Cadieux, 2016 ONSC 4446, at para. 13.
32. The onus of proving prejudice is on the party alleging it unless a limitation period has expired. In the latter case, the onus shifts and the party seeking the amendment must lead evidence to explain the delay and to displace the presumption of prejudice. Mota v. Hamilton-Wentworth (Regional Municipality) Police Services Bard (2003), 2003 CanLII 47526 (ON CA), 63 O.R. (3d) 737 (Ont. C.A.) at p. 748.
33. Rule 26.01 is mandatory. The court shall 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.
34. Rule 26.01 also allows that motion to be brought at any stage of an action. Focusing on that, the legislature clearly intended that the passage of time on its own could not create a presumption. It must be that the passage of time must be considered contextually along with the nature of the amendments being sought.
35. I also highlight that the prejudice discussed in Rule 26.01 refers to a qualified prejudice. Prejudice alone is not the consideration. The rule specifically requires the court to consider “prejudice that cannot be remedied by costs or an adjournment.”
Inordinate delay in bringing the motion - who bears the onus to establish prejudice?
36. As mentioned above, usually in these motions, the party alleging prejudice bears the onus of proving it unless the limitation period has expired. Where the limitation period has expired, the onus shifts to the party seeking the amendment to explain the delay and overcome the presumption of prejudice. Mota v. Hamilton-Wentworth (Regional Municipality) Police Services Bard (2003), 2003 CanLII 47526 (ON CA), 63 O.R. (3d) 737 (Ont. C.A.) at p. 748.
37. I appreciate that when there is an inordinate delay in bringing a motion to amend a pleading, 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. Family Delicatessen Ltd. v. London (City) 2006 CanLII 5135 (ONCA) at para. 6.
38. In 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co. 2017 ONCA 42 at para. 25, the Court of Appeal for Ontario affirmed that the moving party bears the burden to provide a reasonable explanation for the delay or must affirmatively show that the opposing party will not suffer prejudice.
39. In 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.
40. The 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 Ltd. v. State Farm Fire and Casualty Co. 2017 ONCA 42, at para. 37.
41. I note that the Court of Appeal states that if 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. See 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co. 2017 ONCA 42, at para. 37. There is no requirement for the moving party to provide evidence of both. At paragraph 42, the Court of Appeal wrote that such a rigid test is contrary to the fairness considerations that underlie the court's recognition of the concept of presumed prejudice in Family Delicatessen. It would be inequitable to require a moving party to satisfy all three parts of the proposed test in all cases. For example, if a moving party were able to establish that the responding party would suffer no non-compensable prejudice by reason of the amendment, then it would be an odd result if the presumption was not rebutted simply because an adequate explanation for the delay had not been established.
42. Therefore, if there is a presumption of prejudice, the moving party bears the onus to provide a reasonable explanation for the delay or affirmatively show that the opposing party will not suffer prejudice. However, if there is not a presumption of prejudice, the Plaintiff bears the onus of establishing actual prejudice.
Will the amendment cause prejudice to the Plaintiff?
a) Presumed Prejudice
43. The Plaintiff relies heavily on 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42 and Family Delicatessen Ltd. v. London (City) 2006 CanLII 5135 (ONCA) to argue that there is a presumption of prejudice.
44. In my view, the Plaintiff’s position is an oversimplification of the issues in this case, or an exaggerated litigation position. The passage of time is not the only factor to be considered on this motion, and the passage of time alone does not create a presumption of prejudice. The passage of time needs to be considered in the context of the amendment being sought.
45. While I agree that 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42 and Family Delicatessen Ltd. v. London (City), 2006 CanLII 5135 (ONCA) are leading authorities on this issue, I note that they arise from a materially different factual matrix.
46. In Family Delicatessen Ltd. v. London (City), the amendments involved the Plaintiff asserting new causes of action that marked a “dramatic change” in the course of the litigation, and the City would be in a very different position with serious allegations of misrepresentation being brought against it.
47. In State Farm, the proposed new pleading withdrew the allegations of non-cooperation and pleaded instead that coverage was being denied on the basis that the respondents had committed arson. Essentially, the defendant insurer sought to withdraw one defence to the action to advance a new, fundamentally different one.
48. In my view, those cases were based on very different proposed amendments from the one I am asked to consider. Ms. Glover is not seeking to add new defences or allegations.
49. Rather, Ms. Glover has only one proposed amendment which merely identifies the dates by which the Plaintiff was required to take steps in accordance with sections of a statute on which Ms. Glover had already asserted reliance in her statement of defence.
50. The Plaintiff was already on notice that Ms. Glover was relying upon the Libel and Slander Act, which has been pled as a defence since Ms. Glover’s initial Statement of Defence. The Plaintiff could have examined Ms. Glover further on this pleading.
51. The Plaintiff also relied on Horani v. Manulife Financial Corporation, 2023 ONCA 51. There, the Court of Appeal for Ontario dealt with an appeal from a failed motion to amend. The motion was brought 71/2 years after the cause of action arose, and no evidence on the motion addressed the issue of prejudice. In dismissing the appeal, the Court focused on the issues surrounding the inordinate delay and the impact of that delay on the presumption of prejudice.
52. However, in Horani, the amended pleadings would also add a new claim for punitive damages. In the present case, the proposed amendment in this case does not raise a new defence. Instead, it simply calls the attention of the court to a part of the Libel and Slander Act which had already been pled in the statement of defence. While I would not go so far as the defendant to say that the defence, already pled, has now been particularized, I find that the new pleadings merely identify an obvious statutory defence based on the facts already pleaded. This is consistent with the Court’s comments in Hardcastle v. Corporation of the City of Windsor, et al., 2025 ONSC 5610, at para. 62 c, citing Simpson v. Vanderheiden, [1985] O.J. No. 2426, at para. 13; Knight, at paras. 26 and 60 to 61.
53. Counsel for Ms. Glover pointed to Caal v. Hudbay Minerals Inc., 2020 ONSC 415.
54. In Call, the Court held that the presumption of prejudice was inapplicable, despite an almost 7-year gap between the issuance of the original statement of claim and the delivery of the proposed amended claim. At paragraphs 54 to 56, the Court stated:
I also conclude that a presumption of prejudice does not arise in the present circumstances.
… This is not like State Farm where the insurer sought to withdraw one cause of action (non-cooperation) to advance a new, fundamentally different one (intentional setting of the fire) eight years into the litigation which it could have pleaded from the outset. Here, I have concluded that the Plaintiffs did initially plead a cause of action against Hudbay for the involvement of the police and the military and are now seeking leave to provide further particulars and clarifications.
Family Delicatessen is also distinguishable. The City in that case was a nominal defendant cooperating with the other parties for 6 years when the plaintiffs asserted new causes of action against it including misrepresentation. The Court of Appeal held that the motion for leave to amend could have been brought at any time and that the City’s litigation strategy may have been different given that the new causes of action were a “dramatic change” in the course of the litigation (Family Delicatessen at paras. 6-7). There has been no such dramatic change in the present case where Hudbay has always been the main defendant and the causes of action have been pleaded from the outset.
55. I am guided by the court’s comments in Caal and find there is no presumption of prejudice in the present case. Therefore, there is no presumption for Ms. Glover to rebut. I note that beyond the mere passage of time, the Plaintiff also was not able to point to any prejudice that cannot be compensated by costs or an adjournment. I am not persuaded that with amendments of this nature, the mere passage of time creates a presumed prejudice.
56. Therefore, I find that the presumption of prejudice does not apply.
57. If I am wrong and there is a presumption of prejudice, I find that the prejudice is rebutted.
58. There is not a rigid test for rebutting the presumption. 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co. 2017 ONCA 42, at para. 37, at paras. 41-42.
59. As I mentioned above, the Court of Appeal states that if 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. See 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co. 2017 ONCA 42, at para. 37. There is no requirement for the moving party to provide evidence of both.
60. With respect to the explanation for the delay, the delay is explained by the history of the litigation. In light of the proposed amendment about the libel notice, Ms. Glover submits that the dates by which the Plaintiff needed to issue a libel notice and claim flow from when the Plaintiff discovered the allegedly defamatory comments. That fact was first learned by Ms. Glover through the examination for discovery of the Plaintiff in December 2017. Between December 2017 and 2024, the proceeding – as against Ms. Glover – was dormant. After the Plaintiff advised that she was seeking to set the matter down for trial, Ms. Glover appointed new counsel. After 7 years of dormancy, it was only in 2025 and 2026 that the Plaintiff appointed two new sets of co-counsel, delivered extensive medical records and 113 supplementary productions, sat for two subsequent further examinations for discovery on those additional productions, and then delivered more answers to undertakings.
61. The rationale underlying presumed prejudice, such as fading memories and lost evidence, does not apply because the key facts relate largely to documentary records and to evidence that was preserved in the Plaintiff’s earlier sworn discovery testimony.
62. The evidence concerning discoverability has been preserved through the Plaintiff’s own examination for discovery, in which the Plaintiff testified that she became aware of the broadcast immediately when it occurred and discussed it with others, and that the statements continued to be raised during her 2011 election campaign. Relying on State Farm, she submits that the retention of such evidence rebuts any presumption of prejudice. She further contends that the proposed amendment merely specifies dates relevant to statutory notice and limitation requirements and does not introduce new factual issues requiring additional evidence.
63. Even if this explanation is not satisfactory, Ms. Glover has tendered evidence that there is no non-compensable prejudice, and therefore, the presumption is rebutted.
64. Ms. Glover offered to engage in further discoveries. Any litigation steps arising from the amendments can be addressed before the trial.
65. There are numerous cases in which courts permitted late amendments to plead statutory limitation or notice defences, including amendments brought shortly before trial or after substantial litigation steps had been completed. See, for example, Massoudi v. Vice Media Inc., 2021 ONSC 8174 at para. 20, Godoy v. 475920 Ontario Ltd., 2007 CanLII 38394 (ON SC) at paras. 26 to 28, Godoy v. 475920 Ontario Ltd., 2008 ONCA 801, M.C. v. A.G., 2016 ONSC 6190 at paras. 40 to 48 and para. 77, 1309489 Ontario Inc. v. BMO Bank of Montreal, 2015 ONSC 1063 at paras. 14 and 18 to 20, Simpson v. Vanderheiden, 1985 CanLII 2035 (ON HCJ), Knight v. Toronto (City), [2002] O.J. No. 4539, Free v McPherson, 2013 ONSC 7416, and Hardcastle v. Corporation of the City of Windsor, et al., 2025 ONSC 5610.
66. These cases establish that courts have repeatedly held that such amendments merely draw attention to existing statutory provisions that already form part of the governing legal framework. Applied to the present case, the Plaintiff has always had the facts necessary to anticipate a defence under the Libel and Slander Act, particularly because Ms. Glover pleaded reliance on that statute from the outset. Accordingly, the proposed amendment causes no prejudice and places the Plaintiff in the same position she would have been in had the amendment been pleaded earlier.
67. Particularly, in Massoudi v. Vice Media Inc., 2021 ONSC 8174 at para. 20, Associate Justice Jolley did not find any presumed prejudice and permitted an amendment to plead sections 5 and 6 of the Libel and Slander Act given that “the plaintiff would have been in the same position as he [was at the time of the amendment] had the defendants included these defences in their original pleading”. In that case, the claim was issued in 2014, the defence was served in 2014, and the amendments were sought in 2021.
68. I have also considered the timing of this motion. I note that the trial has already been adjourned and the trial is now scheduled to proceed in January 2027 – just a few months away.
69. In Godoy v. 475920 Ontario Ltd., Ltd., 2007 CanLII 38394 (ON SC), the court granted a pleadings amendment to add a limitation defence under the Trustee Act that was first requested one week after a trial had been adjourned on consent.
70. In M.C. v. A.G., 2016 ONSC 6190, Short A.J. followed the court’s reasons in Godoy and granted leave to add a limitations defence notwithstanding that the trial date was six months away.
71. Similarly, in 1309489 Ontario Inc. v. BMO Bank of Montreal, 2015 ONSC 1063, Boswell J. granted leave for a defendant to plead a limitation defence a few months before the scheduled trial, commenting that “the landscape of the trial will change, but that is not the type of prejudice that Rule 26.01 is concerned with. While the revised defences may be prejudicial to the Plaintiff, in the sense that they raise a problematic issue, they are not prejudicial in the sense of procedural or substantive fairness.”
72. In Free v McPherson, 2013 ONSC 7416, the Court granted the defendant leave to amend its defence to plead the Libel and Slander Act notice requirement on the eve of trial, even where the Court recognized that the amendment would likely result in defeating the Plaintiff’s defamation claim. In the case, the cause of action arose in 2007, and the trial was set for 4 weeks in March, 2014. The matter had been judicially managed for quite some time. Discoveries were completed and a pre-trial date was set to occur in early 2014. The matter had been on the trial list for some time.
73. In the present case, while the trial is only a few months away, there is still time to address any issues arising from the amendments, including additional discoveries. Furthermore, Ms. Glover delivered the proposed Amended Defence at a time when the Plaintiff had just appointed new counsel, the Plaintiff’s documentary production was ongoing, two further examinations for discovery of the Plaintiff were yet to be completed, and Ms. Glover had offered to attend for further discovery herself.
74. Based on the record before me, I am unable to find in these circumstances that the passage of time has prejudiced (or would prejudice) the Plaintiff with respect to this proposed amendment.
75. Furthermore, even if litigating this issue properly will completely upend the litigation, as submitted by the Plaintiff, this could be compensated by costs and/or an adjournment. Therefore, the prejudice that is described in Rule 26.01 is not satisfied.
76. Therefore, if there is a presumed prejudice, it has been rebutted.
b) Actual Prejudice
77. Having found there is no presumption of prejudice (or if I am wrong, that the presumption has been rebutted), I now turn to whether there is actual prejudice.
78. In the present case, the proposed amendment seeks to clarify the defendant’s position on pleading a limitation period. The proposed amendments do not seek to advance a new defence.
79. The proposed amendment is very limited, merely setting out the applicable dates in respect of the limitation periods under the statute already pleaded in defence to the Claim.
80. The prejudice suffered by the responding party must causally flow from the amendment itself, not from some other source. Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517 at para. 17
81. The prejudice discussed in Rule 26.01 refers to a qualified prejudice. Prejudice alone is not the consideration. The rule specifically requires the court to consider “prejudice that cannot be remedied by costs or an adjournment.” Klassen v. Beausoleil, 2019 ONCA 407 atp ara. 32
82. Non-compensable prejudice does not include prejudice resulting from the potential success of the proposed amendments. 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42 at para. 25.
83. In the present case, discoveries have occurred, including recent discoveries. Ms. Glover has already pleaded her reliance on the Libel and Slander Act. During examination, she was not asked which parts of the Act were being relied upon.
84. The Plaintiff argues that there would be irreparable disruption to the trial date. The Plaintiff says she would have adopted entirely different litigation and evidentiary strategies over the last 15 years had this motion been brought in a timely manner. The resulting loss of historical evidence and the inability to alter past strategic choices constitute non-compensable prejudice that cannot be remedied by an award of costs.
85. The Plaintiff did not, however, explain what different strategies they would adopt or what different evidence would be relied upon.
86. The Plaintiff could have asked Ms. Glover during the original examination which provisions of the Libel and Slander Act she was relying on. This would have allowed her to know and prepare her case appropriately.
87. The Plaintiff says she will have an untenable burden placed upon her as she will be forced to (i) put in a Reply, (ii) potentially engage in further discoveries and (iii) seek to compile an evidentiary record of events and facts from 16 years ago, including historical records, conversations that took place, and what a reasonable person ought to have known in 2010.
88. In my view, this all can be compensated by costs or an adjournment.
89. The Plaintiff relied on Grant Thornton LLP v. New Brunswick, 2021 SCC 31, [2021] 2 SCR 704 to sugges that proper adjudication of a statutory limitation period requires a deep, fact-specific inquiry into what historical records were available, what conversations took place, and what a reasonable person ought to have known nearly two decades ago. by failing to address this issue for 16 years, there is now severe, irreversible evidentiary decay,
90. However, Grant Thornton dealt with the discoverability test. This is different than the language of section 6 of the Libel and Slander Act.
91. Furthermore, the Plaintiff did not ask about sections 5 and 6 of the Libel and Slander Act during the previous discoveries. There have even been additional discoveries earlier this year. Furthermore, Ms. Glover has offered further discoveries if the amendments are granted.
92. Based on the record before me, there is no evidence of actual prejudice.
Considering Rule 25.07(4)
93. The Plaintiff argues that Rule 25.07(4) needs to be factored into the analysis and that it requires me to dismiss the motion.
94. Rule 25.07(4) provides:
25.07(4) In a defence, a party shall plead any matter on which the party intends
to rely to defeat the claim of the opposite party and which, if not specifically
pleaded, might take the opposite party by surprise or raise an issue that has not
been raised in the opposite party's pleading.
95. The Plaintiff submits that Ms. Glover was required to specifically plead the limitations defences. Simply pleading the Libel and Slander Act was not enough.
96. In Tuffnail v. Meekes, 2020 ONCA 340, the Court of Appeal for Ontario stated:
34It has long been established that the parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings: see rule 25.06.
35The Rules of Civil Procedure, R.R.O. 1990, Reg. 194, are particularly specific about the pleading of affirmative defences. Rule 25.07(4) provides:
25.07(4) In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party's pleading.
36The Ontario courts have consistently held that rule 25.07(4) applies to pleadings relating to limitations that might bar an action: see Pringle v. London (City) Police Force, [1997] O.J. No. 1834 (C.A.); D.S. Park Waldheim v. Epping (1995), 1995 CanLII 7091 (ON CTGD), 24 O.R. (3d) 83 (Gen. Div.); and B. (P.) v. B. (W.) (1992), 1992 CanLII 7666 (ON CTGD), 11 O.R. (3d) 161 (Gen. Div.). See also Mew, The Law of Limitations (Toronto: Butterworths, 1991), at p. 54.
97. I note that Tuffnail v. Meekes dealt with a different issue than the issue before me. In Tuffnail v. Meekes, the Court of Appeal was dealing with a case in which the Limitations Act was not pleaded. In that case, there was a statement of claim and a counterclaim. The Defendant pleaded in her statement of defence that the Plaintiff’s action against her was barred by s. 45(1)(i) of the Limitations Act. The trial judge dealt fully with this issue in his judgment. However, the Court of Appeal noted that it appeared that during closing arguments, the trial judge raised the question whether the counterclaim might be barred by s. 45(1)(j) of the Limitations Act. Counsel were given time to prepare submissions on this issue and, in the result, the trial judge decided that the counterclaim was barred. In his reasons on this issue, the trial judge dealt only with whether a counterclaim was covered by the word "action" in s. 45(1)(j).
98. In her notice of cross-appeal, the Defendant challenged the trial judge's decision on the counterclaim/action issue. However, her first ground of appeal was that the Plaintiff had not pleaded s. 45(1)(j) of the Limitations Act and that this failure was fatal to his, and the trial judge's, reliance on it. The Court of Appeal found that, although this argument was advanced before the trial judge, he did not address it in an otherwise comprehensive judgment.
99. In my view, the commentary of the Court of Appeal in Tuffnail v. Meekes does not apply to the present case. Here, the consideration is about whether an amendment before trial is appropriate.
100. I would go further to say that Ms. Glover’s motion is supported by Rule 25.07(4). Ms. Glover is trying to ensure that her defence complies with this Rule by seeking an amendment that specifically highlights the limitations defence.
Conclusion and Next Steps
101. It took me 100 paragraphs to say I am prepared to grant Ms. Glover’s motion, for the following reasons:
a. Ms. Glover’s proposed amendments seek to particularize the sections of the Libel and Slander Act and the dates by which the Plaintiff was required, but failed, to deliver a notice of libel to Ms. Glover and to commence her action. The proposed amendments do not seek to advance a new defence, as the Statement of Defence already pleaded reliance upon the Libel and Slander Act, which contains the applicable statutory limitations provisions.
b. The Plaintiff has always had the facts necessary to anticipate a defence under the Libel and Slander Act, particularly because Ms. Glover pleaded reliance on that statute from the outset.
c. The Plaintiff has engaged in extensive discovery, including examinations for discovery of Ms. Glover. The Plaintiff had the opportunity to ask Ms. Glover which sections of the Libel and Slander Act she was relying on. I do not have evidence that the Plaintiff did so.
d. The Plaintiff’s concern that there will be an untenable burden placed upon her as she will be forced to (i) put in a Reply, (ii) potentially engage in further discoveries and (iii) seek to compile an evidentiary record of events and facts from 16 years ago, including historical records, conversations that took place, and what a reasonable person ought to have known in 2010, can be compensated by costs or an adjournment.
e. I find that there is no presumption of prejudice. If there is a presumption, that presumption has been rebutted by Ms. Glover.
f. I find that there is no actual prejudice.
g. I find the low threshold for an amendment of a pleading set out in Rule 26.01 has been met.
h. Rule 25.07(4) further supports that the amendment to the statement of defence should be permitted.
102. Therefore, I am prepared to grant leave to the defendants to amend their statement of defence in the form attached as Schedule “A” to their notice of motion, on terms.
103. The parties are permitted to engage in additional discoveries which shall be completed by October 31, 2026.
104. The issue of costs to compensate for the delay in bringing this motion, as it relates to costs incurred in the litigation overall, shall be dealt with by the trial judge.
105. As for costs of this motion, counsel are strongly encouraged to agree to costs. If the parties are not able to agree on costs, the moving party may submit costs submissions of no more than 3 pages plus a costs outline and any offers to settle to my judicial assistant within 10 days of the release of this decision, and the Plaintiff may file responding costs submissions on the same terms within a further 10 days. The moving party’s Reply, if any, is limited to one page, to be filed within a further 5 days. If I do not receive submissions within these time limits, I will assume the parties have resolved the issue and will make no costs order.
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Associate Justice Kamal
DATE: August 18, 2026