Thomas Hawkins

The plaintiff moved for leave to amend the statement of claim under Rule 26.01 of the Rules of Civil Procedure.

The court reaffirmed that leave to amend should generally be granted unless non-compensable prejudice would result, but amendments may be refused where they constitute an abuse of process or fail to plead necessary material facts.

Several proposed amendments were denied because they asserted negligence, breach of trust, fiduciary duty, and duty of care without pleading the material facts required under Rule 25.06(2).

One proposed amendment was also rejected as inconsistent with the plaintiff’s own discovery evidence.

Limited amendments were permitted, portions of an affidavit disclosing mediation communications were struck, and the defendants were awarded costs.

The moving defendants sought leave under Rule 26.01 of the Rules of Civil Procedure to amend their joint statement of defence, counterclaim, crossclaim, and third party claim by delivering separate pleadings and adding additional allegations and claims.

The court reaffirmed that leave to amend should generally be granted unless non-compensable prejudice would result, but scrutinized the proposed amendments for improper pleadings, including arguments, evidence, irrelevant matters, and procedural history that should instead be addressed through motions.

Numerous proposed paragraphs were rejected for pleading evidence, lacking particularity, or raising issues relating to pre-trial disclosure.

Leave was granted in part for both moving parties to amend their pleadings and third party claims, subject to extensive limitations and corrections.

Costs of $3,000 were awarded to one set of responding defendants for part of the motion.

The plaintiff brought a motion under subrule 5.04(2) and rule 26.01 of the Rules of Civil Procedure seeking leave to amend its statement of claim to add a new defendant in a property contamination dispute.

The proposed defendant opposed the amendment on the basis that the applicable limitation period under the Limitations Act, 2002 had expired.

The court held that the moving party failed to provide sufficient evidence to rebut the presumption of discoverability under s. 5(2) of the Act, including evidence of when the claim was discovered or what investigative steps had been taken.

Because the evidentiary record did not establish any doubt about the expiry of the limitation period, the proposed claims were considered clearly statute barred.

The motion to amend was dismissed, though the moving party was permitted to renew the motion with proper evidence within 45 days.

The defendants brought parallel motions for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure against corporate and partnership plaintiffs who alleged losses exceeding $1,000,000 arising from a trading incident involving brokerage services and trading software.

The defendants argued that the plaintiffs lacked sufficient assets in Ontario to satisfy a potential costs award.

The court reviewed the financial circumstances of the plaintiffs and their principals and considered whether they could reasonably post security or obtain a letter of credit.

Finding that ordering security would effectively force abandonment of a claim that was not plainly devoid of merit, and that the plaintiffs were effectively impecunious, the court declined to require security for costs.

The motions were dismissed and costs awarded to the plaintiffs.

The moving defendant sought a stay of the action against one corporate plaintiff on the basis that the corporation had failed to comply with statutory filing obligations.

Evidence established that the corporation had not filed its initial return, annual returns, or several income tax returns as required under the Corporations Information Act.

Under s. 18(1) of that Act, a corporation in default of required filings lacks the capacity to maintain a proceeding in an Ontario court without leave.

The court found the corporation had provided no explanation for its defaults and had not sought leave to continue the action.

The action was therefore stayed as against that plaintiff under s. 106 of the Courts of Justice Act until further order.

The moving defendant sought security for costs under Rule 56.01(1)(a) of the Rules of Civil Procedure on the basis that the plaintiff was ordinarily resident outside Ontario and had no assets within the jurisdiction.

The plaintiff opposed the motion, asserting impecuniosity and arguing that an order for security would prevent the claim from proceeding.

The court granted leave to bring the motion despite it being brought late after the action had been set down for trial.

However, the court accepted the evidence that the plaintiff lacked financial resources and would be unable to post security.

Applying the principle that meritorious claims should not be prevented from proceeding due to poverty unless plainly devoid of merit, the court dismissed the motion.