Executive Summary: Key Legal and Evidentiary Issues

• Timing and scope of late amendments to pleadings under Rule 26.01 after pleadings have closed and a five-day non-jury trial has been scheduled.
• Reliance on historical sexual assault allegations both as a new counterclaim and as a juristic reason to defeat an unjust enrichment claim.
• Prejudice arising from delay, further discovery, expert evidence, and adjournment of a trial scheduled to begin in seven weeks, particularly given the plaintiffs’ advanced ages.
• Attempt to incorporate information and allegations from a decades-old, dormant Toronto Action, with attendant risks of relitigation and inconsistent findings.
• Application of consolidation principles under Rule 6.01 to have the Lawyer Negligence Action heard together with the Parry Sound Action.
• Interaction between unjust enrichment principles, including the juristic reason analysis in Kerr v. Baranow and Pettkus v. Becker, and allegations that amount to a separate cause of action.

Facts and procedural background

Brian Walter Dittmar and Florence Dittmar are the plaintiffs and defendants to the counterclaim in this action. Catherine Elizabeth Dittmar and her husband, Mark Richard McCallum, are the defendants and plaintiffs by the counterclaim. Brian and Florence are described as an elderly couple residing at the property that is the subject of this litigation, while Catherine and Mark are the titleholders of that property. The action has been set for a five-day non-jury trial scheduled to begin on March 3, 2026, and the pleadings have closed.

There is a companion proceeding brought by Brian against solicitor David Thoms, who conducted the real estate transaction between the vendor and Catherine and Mark. That companion matter has file number CV-23-00000031 and is referred to as the Lawyer Negligence Action. The decision also refers to an earlier proceeding commenced in Toronto in 1989 as an application involving Brian and his former spouse, Veronica Dittmar, with court file number CV-94-CQ-49154, described as the Toronto Action. The Toronto Action has been dormant for nearly 20 years. On April 20, 2025, Veronica transferred all her right, title, and interest in the Toronto Action to Catherine.

On this motion, the defendants sought several orders. First, they sought to have the Lawyer Negligence Action heard at the same time as the present action, with the consent of all parties, including solicitor Thoms. Second, while they no longer sought to have the Toronto Action heard at the same time, they submitted that it should be and left it to the court’s discretion. Third, they sought to amend the pleadings to include damages related to assaults and other wrongful conduct of Brian, including adding a new cause of action in the counterclaim relating to historical sexual assaults and using those allegations as a defence in the main action. The “other wrongful conduct” relates back to allegations of misrepresentation that would rely on the Toronto Action.

The plaintiffs agreed to the consolidation of the Lawyer Negligence Action with the present action (the Parry Sound Action) but opposed all other requested orders on this motion. They advised that a timetable had been ordered in the Lawyer Negligence Action to ensure that it would be ready to proceed on the March 3, 2026 trial sittings.

Legal framework for amendment and consolidation

Justice Bellows reviewed the relevant Rules of Civil Procedure and authorities. Rule 26 governs amendments to pleadings. Because the pleadings had closed and the matter was set for trial, the defendants required leave of the court to amend under Rule 26.02. Rule 26.01 provides 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 by costs or an adjournment.

The Ontario Court of Appeal’s decision in Iroquois Falls Power Corp. v. Jacobs Canada Inc. is cited for the principle that Rule 26.01 requires the court to grant an amendment unless the opposing party establishes non-compensable prejudice that results from the amendment, and that the prejudice must flow from the amendments themselves. The purpose of the Rules respecting amendments is described, by reference to Spar Roofing & Metal Supplies Limited v. Glynn, as bringing all parties to disputes relating to one subject matter before the court at the same time so that disputes may be determined without the delay, inconvenience, and expense of separate actions. The Court of Appeal’s decision in Marks v. Ottawa (City) is cited for the proposition that there is no absolute right to amend pleadings. Daniele v. Johnson is referenced for the requirement of “legal soundness” of amendments, which must be subject to the normal rules as to form, relevance, and basis in law, and that leave to amend should not be granted unless the amendment is tenable in law.

The decision also notes that, at some point, delay in seeking an amendment results in a presumption of prejudice, with the onus on the moving party to rebut the presumption and the onus on the responding party to establish actual prejudice. Ontario Securities Commission v. McLaughlin is cited for the explanation that, to rebut the presumption of prejudice, a moving party needs to provide some explanation of the delay and address the presence or absence of prejudice, as well as demonstrate a nexus between the proposed amendments and facts or evidence said to be recently discovered.

On joinder and consolidation, the court refers to Rule 5 governing joinder of claims and parties and to Rule 6.01 governing consolidation and related orders. Rule 5.02(2) is set out with respect to joining multiple defendants or respondents. Rule 6.01(1) is reproduced, establishing that where two or more proceedings are pending in the court and it appears they have a question of law or fact in common, arise from the same transaction or occurrence (or series), or for any other reason an order ought to be made, the court may order that the proceedings be consolidated, heard at the same time or one immediately after the other, or that any of the proceedings be stayed or asserted by way of a counterclaim in any other of them.

The Court of Appeal’s decision in Windrift Adventures Inc. v. Ontario (Animal Case Review Board) is cited for the two-fold test for consolidation: first, whether any of the criteria under Rule 6.01(1) have been met; and second, whether the balance of convenience favours a consolidation order. The factors for assessing the balance of convenience are noted as being set out in 1014864 Ontario Ltd. v. 1721789 Ontario Inc., which the judge does not repeat but refers to as necessary.

The overarching objectives of civil proceedings are addressed with reference to Rules 1.04 and 2.03, which apply more generally to interpreting or dispensing with compliance with the rules to secure the most just and expeditious outcome on the merits, in the interest of justice. The Court of Appeal’s decision in Khimji v. Dhanani is cited for the overall objective of civil proceedings as a just determination of the real matters in dispute, and as a reminder that Rule 2.01(1)(a) builds flexibility into procedural decisions and that courts should not be too quick to deprive litigants of a decision on the merits. Section 138 of the Courts of Justice Act is also cited for the principle that, as far as possible, multiplicity of legal proceedings shall be avoided.

Application to the Lawyer Negligence Action

Justice Bellows notes that all parties, including the defendant in the Lawyer Negligence Action, agree that the Parry Sound Action and the Lawyer Negligence Action should be heard at the same time or one after the other on the scheduled trial sitting. The parties submit that this would not significantly lengthen the estimated trial time because the Lawyer Negligence Action involves the same transaction. The plaintiffs have never opposed having the two matters heard together and advise that a timetable has been ordered in the Lawyer Negligence Action to ensure that it is ready to proceed on the March 3, 2026 trial sittings.

The court agrees that the matters ought to be heard together. Justice Bellows finds that Rule 6.01 is satisfied because the matters involve the same transaction and share questions of law or fact. In assessing the balance of convenience, the judge finds that the balance favours consolidation, noting that the matters are significantly interwoven as they deal with the same single transaction, that there is significant overlap in witnesses, that there is a significant risk of inconsistent findings if the matters are heard separately, that both matters are timetabled in a way that both can proceed in the same trial sitting, that consolidation will reduce costs and court time required, and that all parties consent to the matters being heard at the same time or one after the other.

Accordingly, the Lawyer Negligence Action is ordered to be heard at the same time as, or immediately after, the Parry Sound Action and to be added to the trial list beginning March 3, 2026, pursuant to Rule 6.01. Both matters are to be added to the Assignment Court list on January 26, 2026, at 9:00 a.m. to confirm with all parties that the matters are to proceed together, commencing on the running list beginning March 3, 2026. The judge notes that, should the parties wish to file a joint letter or document acknowledging that the two actions shall proceed together commencing March 3, 2026, the trial coordinator may vacate the January 26, 2026 appearance.

Treatment of the Toronto Action

The decision records that the Toronto Action has been dormant for nearly 20 years and that the defendants submit that it does not have a question of law or fact in common with the Parry Sound Action, nor does the relief claimed arise out of the same transaction or occurrence. The defendants rely on juristic reason to permit the facts and/or pleadings in the Toronto Action to attach to the Parry Sound Action. They state that Veronica’s claims in the Toronto Action, which have been assigned to Catherine, are a juristic reason for Catherine to retain any benefit she may have realized from any deprivation Brian may have suffered, resulting from Catherine and Mark retaining ownership of the property. They wish to rely on the assignment by Veronica as a basis for a valid legal justification for Catherine to retain the benefit or enrichment in the property at Brian’s expense, should the court find that Catherine and Mark have been unjustly enriched by Brian and Florence.

In submissions, the defendants resile from seeking to consolidate or hear the Toronto Action together with the Parry Sound Action but continue to seek leave to amend their pleadings to include information, facts, and allegations in relation to the Toronto Action in the Parry Sound Action. Justice Bellows finds that the Toronto Action fails to meet any threshold for consolidation with the Parry Sound Action.

With respect to the remaining motion for leave to amend the pleadings to permit information from the Toronto Action into the Parry Sound Action, the judge finds that any connection is tenuous at best. The decision notes a significant risk in relitigating an action that has lain dormant for nearly 20 years and/or of inconsistent findings should the Toronto Action litigation continue. Justice Bellows concludes that, should Catherine be entitled to any award from the Toronto Action that might offset the possible unjust enrichment claim of Brian and Florence, it is to be realized properly as a part of that litigation. The court ultimately orders that the Toronto Action, and any information related to it, shall not be permitted as part of any amended pleadings in the Parry Sound Action, either as part of the claim or counterclaim.

Proposed amendments regarding historical sexual assaults and other damages

The decision records that, on April 20, 2025, Veronica transferred her interest in the Toronto Action to Catherine, Catherine made a statement to police alleging historical sexual assaults, and the defendants gave notice that they would seek to amend the pleadings to include the alleged assaults and other damages. The defendants seek to amend the pleadings to include damages related to assaults and other wrongful conduct of Brian, including adding a new cause of action in the counterclaim relating to historic sexual assaults and using those allegations as a defence in the main action. The “other wrongful conduct” relates back to allegations of misrepresentation that would rely on the Toronto Action. The amendments requested also relate to allegations that Brian misappropriated funds, as alleged in the Toronto Action.

Justice Bellows notes agreement with the defendants’ reply factum that Ontario has, through legislation and caselaw, recognized the long-lasting and deep emotional trauma associated with sexual assault and that victims may take years to come forward. The decision states that, while the court is mindful of the care taken when dealing with the timing of disclosure around sexual assault, that care does not result in automatic orders and does not supersede all other considerations. On this pleadings motion, it is not for the judge to decide whether the historical sexual assault occurred; it is presumed true. The decision also makes clear that the ruling on this motion will not bar Catherine from bringing a separate action against Brian for damages relating to her claim of sexual assault. It is further noted that sexual assault claims are not subject to a limitation period under section 16(1)(h) of the Limitations Act, 2002.

Justice Bellows identifies three considerations in assessing the request to amend under Rule 26.01: whether it will cause prejudice to the plaintiffs that is non-compensatory; whether, when raised as a defence to this action, it is prima facie legally tenable; and whether, as a separate cause of action as a counterclaim, the amendment would achieve the overarching objectives of the rules of civil proceedings.

On non-compensatory prejudice, the judge characterizes the motion as an eleventh-hour request to amend pleadings that would require further discovery, expert witnesses, and significantly more trial time. Combined, these would result in an adjournment of a trial that is otherwise ready to proceed as scheduled in seven weeks. At the time of the motion, the trial was 2.5 months away, including the December/January holiday season. Despite the defendants’ submissions that the matter could be ready to proceed on March 3, 2026, the court agrees with the plaintiffs that this is impossible. The defendants have not yet produced their expert reports. Justice Bellows finds that the only way this matter could proceed to a just and fair trial with the amendments sought would be after a substantial adjournment, and notes the plaintiffs’ suggestion that this might be in the range of 12–18 months or longer.

The plaintiffs raise their advanced age as a factor in assessing delay and non-compensatory prejudice. The decision records that Brian is 93 and Florence is 83, and Justice Bellows accepts that their age, combined with the age and current state of the matter (which is ready to proceed to trial in seven weeks), are factors to be considered. The judge finds that the delay caused by amending the pleadings in these circumstances amounts to real prejudice to the plaintiffs that cannot be compensated by costs. The decision also notes that the requested amendments to include sexual assaults and allegations related to the Toronto Action would be collateral issues that would take the trial down a different path than it has been proceeding since 2022, when the action commenced. The court further observes that the defendants point out that sexual assault does not have a limitation period and that expectations cannot be placed on a victim about when they are willing and able to come forward, but that they make no reference to the Toronto Action in this regard and that the allegations relating to the Toronto Action are not new. Given the risk of inconsistent findings, together with the prejudice, delay, and additional costs, the court concludes that the Toronto Action pleading amendments shall not be permitted.

Historic sexual assault allegations as a defence to unjust enrichment

The decision addresses submissions from both counsel regarding Kerr v. Baranow. In that case, the Supreme Court of Canada dealt with unjust enrichment claims between spouses and discussed juristic grounds for denying recovery. The decision notes that Kerr refers back to Pettkus v. Becker, which sets out the three steps for recovery in an unjust enrichment claim: whether there has been enrichment or benefit to the defendant; whether that enrichment or benefit corresponds to a deprivation to the plaintiff; and the absence of a juristic reason for the enrichment. Kerr acknowledges that there is no separate line of authority for family cases and that the legal principles remain constant across all areas but must be applied in the particular factual and social context out of which the claim arises. The first and second steps are described as straightforward economics, while the third step engages other considerations, including moral and policy questions.

The decision explains that juristic reasons to deny recovery may be one of the established categories, such as a contract or an intention to provide a gift, but that, where a defendant seeks to bar recovery by rebutting the presumption that there is no juristic reason, the court is obligated to consider all the circumstances of the transaction to determine whether there is a reason to deny recovery based on the parties’ reasonable expectations and public policy. In this case, the defendants rely on Kerr for the principle that the sexual assault against Catherine would be relevant as a juristic reason for Brian not to receive the benefit of any unjust enrichment that may have been found. The plaintiffs submit that Kerr refers to policy-based reasons that disclose no separate cause of action and that Catherine’s allegations amount to a separate cause of action.

Justice Bellows concludes that it is the reasonable expectation of the parties at the time of the transaction that the defendants would try to attach the historic sexual assault allegations to in order to establish a juristic reason to deny recovery, and that it is at this point that the argument is not legally tenable. The judge finds that, even taking the allegations as true, the argument cannot succeed.

Overarching civil procedure considerations and final disposition

The decision reiterates that Catherine may have a separate action against Brian as a result of historical sexual assault(s) that may result in an award if successfully litigated, and that sexual assault claims are not subject to a limitation period. However, Justice Bellows also considers Rule 1.04(1), which imposes an obligation to construe the rules liberally to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits. The judge notes that permitting the requested amendments would add a layer of complexity that does not relate to the transaction, and that simply having two parties in common is not sufficient. If permitted, the amendments would significantly lengthen the trial to address collateral issues and an entirely new cause of action, unduly increasing time and costs for this matter and for the Lawyer Negligence Action, which has no connection to the requested amendments.

Justice Bellows concludes that, although delay, complexity, significantly lengthening the trial, and the age of the plaintiffs are not, in and of themselves, sufficient to refuse amendments, when taken together they amount to real, non-compensable prejudice against the plaintiffs and, collaterally, solicitor Thoms. The court finds that permitting the amendments would not result in the most just, expeditious, and least expensive determination of the matter. Justice Bellows states that the most just, expeditious, and least expensive determination of this action is for it to proceed as pleaded and scheduled for trial on March 3, 2026, and orders that it shall do so.

In the formal orders, the court directs that the Lawyer Negligence Action shall be heard at the same time as, or immediately after, the Parry Sound Action and shall be added to the trial list beginning March 3, 2026. It is further ordered that both matters shall be added to the Assignment Court list on January 26, 2026, at 9:00 a.m., with the possibility of vacating that appearance if the parties file a joint letter or document acknowledging that the two actions shall proceed together commencing March 3, 2026. The court orders that the Toronto Action, and any information related to it, shall not be permitted as part of any amended pleadings in the Parry Sound Action, either as part of the claim or counterclaim, and states that leave to amend the pleadings is denied and the motion is dismissed. Justice Bellows orders that the plaintiffs are entitled to costs on this motion. The decision sets out a process for costs submissions if the parties do not agree, allowing the plaintiffs to provide costs submissions to a maximum of two pages (excluding attachments) within 15 days of the date of the decision, and the defendants to provide reply submissions to a maximum of two pages (excluding attachments) within 15 days of receiving the plaintiffs’ materials, with no submissions to be considered beyond these deadlines. The successful parties on the motion are therefore the plaintiffs, Brian Walter Dittmar and Florence Dittmar, but the total amount ordered in their favour for costs is not determined in the decision, and no damages or other monetary awards are fixed in this motion ruling.