Executive Summary: Key Legal and Evidentiary Issues

• The court denied the defendants' request for an adjournment because it came only after the plaintiff had completed its submissions.
   
• Leave to amend the statement of claim was granted to add Sukanta Saha as a party defendant.
   
• Justice Robinson found the proposed pleading against Mr. Saha disclosed a sufficient basis for a claim tied to his supervisory role in the lease review.
   
• Conflicting affidavit evidence between Yuliia Zarystka and the responding parties precluded any factual findings on the merits at this stage.
   
• Whether Mr. Saha's limitation period had expired could not be resolved due to insufficient evidence on when the plaintiff knew of his involvement.
   
• Partial indemnity costs of $7,701.74 were awarded to the plaintiff, with substantial indemnity costs declined.
   

Facts of the case

Eco Kids-Child Care Centre Inc., operating as Balloons Children's Development Centre, sued Emmabby Property Management Inc., Ariston Realty Corp., BGS Realty Inc. (operating as RE/MAX Elite Real Estate), Dolgonos LLP, and Alexandr Dolgonos. The plaintiff moved for leave to further amend its statement of claim to add Sukanta Saha, the lawyer of record for Dolgonos LLP and Alexandr Dolgonos (together, the "Dolgonos Defendants"), as a party defendant. Mr. Dolgonos is a paralegal, and Mr. Saha is described in the proceedings as the supervising lawyer associated with Dolgonos LLP. The proposed amended pleading alleged that Mr. Saha supervised Mr. Dolgonos on the file, that the plaintiff had no knowledge of or contact with Mr. Saha at the relevant time, and that the plaintiff did not learn of his involvement until September 2024. Yuliia Zarystka, the plaintiff's principal, stated in her affidavit that Dolgonos LLP and Alexandr Dolgonos had been retained to review a lease agreement, and that she only learned of Mr. Saha's role after her lawyer received a letter from Alexandr Dolgonos in September 2024 confirming his involvement as supervising lawyer. The responding parties, by contrast, took the position that the Dolgonos Defendants were never formally retained by the plaintiff at all. During the hearing, held by videoconference on March 4, 2026, Mr. Saha requested an adjournment partway through his responding submissions, after the plaintiff had already completed its own submissions and in response to questions from the bench about the sufficiency of the responding evidence.

Policy and legislative provisions at issue

Rule 26.01 of the Rules of Civil Procedure requires the court to grant leave to amend a pleading on just terms, unless doing so would cause prejudice that could not be compensated for by costs or an adjournment. Section 21(1) of the Limitations Act, 2002 provides that a claim cannot be pursued against a person added as a party if the applicable limitation period has already expired. Section 5 of the Limitations Act, 2002 sets out the discoverability test, under which a claim is discovered on the earliest date the claimant knew or ought to have known that the loss occurred, that it was caused by an act or omission, that the act or omission was that of the person being claimed against, and that a proceeding would be an appropriate remedy. The scope of practice restrictions under the Law Society Act for paralegals were also relevant to whether lease review work fell within Mr. Dolgonos's authority or required lawyer supervision.

Reasoning and analysis

Associate Justice Robinson found that the timing of the adjournment request was fatal to it, since Mr. Saha only sought more time after hearing the plaintiff's complete submissions and after his own position had been tested by questions from the court; allowing an adjournment at that stage would have been procedurally unfair to the plaintiff. Turning to the amendment motion, the court applied the principle from Schembri v. Way, 2012 ONCA 620, that amendments adding parties should be presumptively approved absent abuse of process or non-compensable prejudice, and that allegations in a proposed pleading are taken as true and provable at this stage. Citing 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, the court held that the onus to prove actual prejudice rested with the responding parties, and found that most of the prejudice they raised, including reopened pleadings and expanded discovery, was compensable; Mr. Saha had conceded this point. On tenability, the court held that the pleading's allegations regarding Mr. Saha's supervisory role and his alleged negligent review of the lease were sufficient to support a claim against him personally, particularly given that lease review would fall outside a paralegal's scope of practice absent lawyer supervision. The court declined to resolve the conflict between Ms. Zarystka's evidence and the responding parties' position on retainer, noting that weighing such factual disputes was not appropriate on a pleadings amendment motion. On the limitations defence, the court accepted, applying the discoverability standard referenced in Grant Thornton LLP v. New Brunswick, 2021 SCC 31, that the plaintiff generally knew of its loss and its cause by July 27, 2023, when it received an email from the Toronto and Region Conservation Authority. However, the court found insufficient evidence to determine when the plaintiff knew or ought to have known that Mr. Saha specifically was responsible, noting that Ms. Zarystka was not a recipient of a December 2022 email that named Mr. Saha, and that Mr. Saha had not tendered any evidence of his own on the point.

Ruling and overall outcome

The court granted the plaintiff's motion, denying the adjournment request and granting leave to amend the statement of claim to add Sukanta Saha as a party defendant, without prejudice to his ability to plead and pursue a limitations defence at a later stage. On costs, the plaintiff, as the successful party, sought substantial indemnity costs of $11,983.31 or, alternatively, partial indemnity costs of $7,701.74. Referring to Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, the court declined to award substantial indemnity costs, finding that the responding parties' opposition, though unsuccessful, was not without merit. The Dolgonos Defendants and Mr. Saha were ordered to pay the plaintiff partial indemnity costs of $7,701.74, payable within thirty days.