Executive Summary: Key Legal and Evidentiary Issues

• The plaintiff sought leave to amend a statement of claim that was originally filed in 2014 under the simplified procedure.
   
• A proposed amendment introduced new factual allegations regarding false credit reporting to Equifax and suspension of a TD VISA card that were absent from the original pleading.
   
• Non-compensable prejudice arises when an amendment advances a claim after the expiry of an applicable limitation period.
   
• Courts also presume prejudice where a party seeks an amendment following a long and unjustified delay.
   
• Insufficient evidence was presented to explain the delay in seeking the amendment or to rebut the presumption of prejudice.
   
• Rule 53.04 governs whether summonses to witness may be issued, and that relief was found unwarranted absent a scheduled trial.
   

Facts of the case

Nazim Rajbally, self-represented and assisted by his spouse B. Rajbally, brought a motion seeking leave to amend his statement of claim and for the issuance of summonses to witness. The original statement of claim was issued on August 11, 2014 under the simplified procedure, seeking $25,000.00 for loss of reputation and favourable credit rating, $25,000.00 for breach of contract, $25,000.00 for pain and suffering due to mental stress, and $50,000.00 in punitive damages. The plaintiff alleged that on or about August 13, 2012 [the statement of defence, discussed below, refers to August 12, 2012], TD Canada Trust mistakenly withdrew $1,600.00 from his TD VISA credit card, which had a $500.00 credit limit, instead of from his bank account, and that similar errors occurred again in January 2013. He alleged these errors downgraded his credit rating to the point that he could not obtain work in law or a similar field, invest in business, or secure a favourable mortgage rate, and that he suffered emotional and physical stress as a result. TD Canada Trust's statement of defence, dated November 24, 2014, pleaded that the plaintiff attended a TD branch and asked to pay a UK credit card using his TD VISA card; the teller explained this was not possible but offered a cash advance to his chequing account instead, which the plaintiff accepted and which was then applied to the UK card. The defendant pleaded that the plaintiff was the author of his own misfortune in accepting the advance and taking time to repay it. The action was dismissed for delay by the Registrar on August 29, 2019, then reinstated on consent by Associate Justice Brott on November 29, 2019. Examinations for discovery were completed in April 2021, mandatory mediation occurred on September 20, 2023, and a pre-trial conference on July 17, 2025 was adjourned by Associate Justice McGraw pending disposition of this motion.

Policy and legislative provisions at issue

The plaintiff's request to amend was addressed under the rule governing amendments to pleadings, which the endorsement identifies in its heading as Rule 25.06 but then quotes under the numbering "26.01," stating that 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 [this numbering discrepancy appears in the source document]. The proposed amended statement of claim also did not comply with Rule 26.03(2), as it lacked the underlining required to distinguish amended wording from the original text. The plaintiff's separate request for summonses to witness was considered under Rule 53.04, and the court noted that, as a simplified procedure action without a jury notice, any trial would proceed as a summary trial under Rule 76.12.

Reasoning and analysis

The court applied the principle that non-compensable prejudice is established where an amendment would add a new cause of action after the expiry of a limitation period, citing McFadden v. Psutka, 2022 ONSC 6239 at para. 48. Drawing on Monster Snacks Inc. v. David, 2023 ONSC 6223 at para. 10, and the underlying authorities of 1100997 Ontario Limited v. North Elgin Centre Inc. [rendered as "100997 Ontario Limited" at para. 12 of the source and "1100997 Ontario Limited" elsewhere in the source], 2016 ONCA 848, and Klassen v. Beausoleil, 2019 ONCA 407, the court reiterated that a party cannot use an amendment to circumvent an expired limitation period by advancing a fundamentally different claim based on facts not originally pleaded. The court also referenced Family Delicatessen Ltd. v. London (City), 2006 CanLII 5135 (C.A.) at paras. 6-7, for the proposition that prejudice is presumed where an amendment is sought after a long and unjustified delay, and Davis v. East Side Mario's Barrie, 2018 ONCA 410 at paras. 31-32, for the definition of a cause of action and the distinction between a genuinely new claim and one that merely restates existing facts or draws different legal conclusions from them. Applying these principles, the court found that the proposed amendment pleaded new facts, namely that the defendant had knowingly or recklessly reported false credit information to Equifax and had suspended the plaintiff's TD VISA card, allegations absent from the original claim, which itself was no longer referenced in the proposed amendment. The false-reporting allegation was said to span 2012 to 2016 and the card suspension to have occurred in 2016, meaning any applicable limitation period would have expired by 2018 at the latest, with no pleading or evidence of discoverability to extend it. The court further held that, even setting aside the limitation period issue, the plaintiff had not provided sufficient evidence to explain the delay in seeking the amendment or to rebut the presumption of prejudice, citing Horani v. Manulife Financial Corporation, 2023 ONCA 51 at paras. 32-33. While the plaintiff's affidavit referenced his medical condition at paragraph 4, the court found this did not explain the delay, and no evidence supported the statement made at paragraph 9 of his factum. On the summonses to witness, the court found no basis for the relief given that no trial had been scheduled.

Ruling and overall outcome

Associate Justice B. McAfee dismissed both the motion for leave to amend the statement of claim and the motion for summonses to witness. TD Canada Trust, as the successful party, was awarded costs of the motion fixed in the all-inclusive amount of $5,000.00, payable by the plaintiff in any event of the cause; this figure fell between the defendant's requested $5,900.00 and the $5,200.00 the plaintiff had proposed had he succeeded. The endorsement is dated July 22, 2026.