“The trial judge held that the respondent had a fifty percent beneficial interest by way of resulting trust in the Kerr Street property. The appellant attacks the finding of a resulting trust on two bases: first, that the issue of resulting trust was never pleaded; second, that the trial judge failed to consider the respondent’s motive for putting the company that held title to the property into the appellant’s name. Finally, the appellant submits that even if there was a resulting trust, the trial judge erred in finding that the respondent had a fifty percent beneficial interest. We would not give effect to any of these submissions.
It is true that the resulting trust was never pleaded. However, it is apparent from the transcript of the trial that the parties were well aware that the respondent’s interest in the Kerr Street property was a live issue. Counsel for the appellant at trial specifically referred to the issue in his questioning of the respondent.
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We are satisfied that the appellant was not prejudiced by the respondent’s failure to amend the pleadings. In the circumstances it was open to the trial judge to consider the respondent’s claim for a beneficial interest in the property. As this court said in Cassidy v. McNeil, (2010), 2010 ONCA 218 (CanLII), 99 O.R. (3d) 81 at para. 42:
Finally, the husband apparently did not advance any argument of prejudice at trial, an argument that could have been accommodated by an adjournment, if one was necessary. The decision not to raise the argument at trial supports the conclusion that the husband suffered no prejudice. In any event, there is no evidence that the husband suffered either surprise or prejudice from any technical deficiency in the wife’s Answer.”