



COURT OF APPEAL FOR ONTARIO

CITATION: Granger v. Granger, 2016 ONCA 945

DATE: 20161215

DOCKET: C61292

Cronk, Juriansz and Brown JJ.A.

BETWEEN

John Granger

Appellant (Respondent/Counter-Applicant)

and

Katarina Granger and Helena Granger

Respondents (Applicants/Counter-Respondents)

Saba Ahmad and Michael Hackl, for the appellant

Bruce Baron and Maija Pluto, for the respondents

Heard: October 12, 2016

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated October 20, 2015, with reasons reported at
    2015 ONSC 6238 and the application decision of March 23, 2015, with reasons
    reported at 2015 ONSC 1711.

Juriansz J.A.:

INTRODUCTION

[1]

In this appeal the appellant John Granger is pitted against his elderly
    mother Katarina Granger and his sister Helena Granger. The core of their
    dispute relates to the family home to which Helena and Katarina held joint
    title and in which they were all residing at the material time. Johns main
    appeal is from the trial judges dismissal of his application for a declaration
    that he had a beneficial interest in the family home, or alternatively for
    equitable damages for financial contributions and services rendered to
    Katarina. John also appeals from the judges decision on an earlier application
    upholding the validity of a power of attorney Helena holds for Katarina.

[2]

For the reasons that follow, I would allow both parts of the appeal.
    First, though the trial judge was faced with a difficult and acrimonious family
    dispute in which he made few findings of fact because much of the evidence of
    both sides lacked credibility, he erred in his approach to unjust enrichment.
    Applying the proper approach to the findings the trial judge did make results
    in part of Johns unjust enrichment claim succeeding. Second, considering the
    trial judges ultimate findings at trial as fresh evidence, his initial ruling
    on the application upholding Helenas power of attorney cannot stand.

FACTS AND PROCEDURAL HISTORY

(1)

Background

[3]

The family home in Toronto was purchased in 1981 and title was taken in
    Katarinas name only. Shortly after his father deserted the family in 1984,
    John dropped out of school and lived with his mother in the family home for the
    next 30 years. Then this dispute arose.

[4]

Johns position is that his mother wanted him to live with her to look
    after her and the house. He says she promised him that if he did so he would
    have half the house upon her death. Later, after Katarina helped Helena
    purchase another property, John says Katarina promised him the entire house
    upon her death.

[5]

In 2012, after Helenas marriage broke up, she moved back into the
    house. Helena, exercising her power of attorney, transferred title to the house
    to Katarina and herself as joint tenants for two dollars consideration.

(2)

The proceedings below

[6]

On September 25, 2014 Katarina and Helena commenced an application for a
    writ of possession to evict John and his common-law wife Margaret from the
    family home. John brought a counter application challenging Helenas power of
    attorney, seeking the appointment of a neutral litigation guardian, and seeking
    a beneficial interest in the property.

[7]

The applications came before the trial judge sitting as the application
    judge in March, 2015. He found that Katarina was competent and dismissed Johns
    allegation of undue influence as well as his request for the appointment of a
    litigation guardian. He granted Katarinas and Helenas request for an order evicting
    John and Margaret from the property. They moved out of the property in 2015.

[8]

The application judge also ordered a trial of an issue as to whether
    Katarina and Helena held their interests in the property for John by way of
    constructive trust, or whether John was entitled to damages for his financial
    and other contributions to the property and to Katarinas care and maintenance.

[9]

After hearing nine days of evidence, the trial judge dismissed Johns
    claims by order dated October 20, 2015.

(3)

None of the family members were credible

[10]

The trial judge concluded he could not rely on the evidence any of the
    three family members.

a.

The mother Katarina Granger

[11]

The trial judge questioned whether Katarina had any recollection at all
    of the various incidents giving rise to this dispute. He added:

117
Katarina consistently and repeatedly offered
    stock answers such as "Helena handled everything", "Helena
    always helped me and John did nothing" and "Helena always looks out
    for me". These responses sounded rehearsed, and likely served as "go
    to answers" when Katarina either didn't understand the question, or didn't
    want to give the actual answer. The fact that Katarina denied signing the 2011
    Will showed me the extent to which her testimony could venture in the event she
    felt she was giving the "wrong evidence".

118
During Katarina's testimony, Helena was seated
    in the back of the courtroom. On several occasions after Katarina answered the
    questions posed by counsel, Helena would exclaim phrases such as "no,
    that's not right" or "she is not understanding the question". It
    appeared that Helena was either expressing disappointment with her mother's
    evidence, or even worse, trying to remind or influence her mother to
    "stick to the script".

[12]

Katarina was so entrenched in her position that she claimed Helena was
    responsible for certain basement renovations John claimed to have made, even
    though Helena had already moved out of the property for several years and never
    testified as to her involvement at all with any basement renovations.

b.

The daughter Helena Granger

[13]

The trial judge remarked that in their testimony, John and Margaret had
    described Helena as an aggressive, domineering, stubborn bully, and then
    observed that Helena came as advertised, and then some. He
found Helenas explanation of inconsistencies between her
    testimony at trial and her prior sworn testimony as shocking.
Helena
    took irreconcilable positions and 
effectively
    admitted that she viewed it permissible to tell a different story to John's
    counsel than the one she spun to the Court at trial, purportedly taking the
    same oath.

[14]

The trial judge said that Helena attempted to portray herself as
    superior to the rest of the Granger family members by making false,
    unbelievable claims of higher education. He found her testimony strained the
    limits of both common sense, and reality. The trial judge concluded Helena was
    a witness who essentially said or assumed anything to avoid the mere
    contemplation of being incorrect.

c.

The son John Granger

[15]

The trial judge was troubled by Johns failure to produce any documents
    that clearly showed a transfer of funds from himself to his mother. The trial
    judge observed that he sought to resile from 
specific
    representations to Canada Revenue Agency, and presumably on his unemployment
    insurance applications.  The trial judge was troubled by Johns
    characterization of the property as his mothers in more recent years. In
    cross-examination John gave rambling answers that did not specifically respond
    to questions posed of him. When confronted with inconsistent statements from
    prior cross-examination on his affidavits, he was evasive and on one occasion
    even answered that his previous evidence given only months earlier was wrong.

d.

The documentary evidence

[16]

In addition to finding the parties not credible, the trial judge found
    he could not rely on most documents they tendered. Because of the parties
    conflicting and confusing testimony about the documents he found it difficult
    to make anything of them at all.

[17]

For example, the parties produced a series of written lease agreements
    listing John and Margaret as the tenant but, curiously, indicating Helena as
    the landlord. At trial, all parties testified the leases were shams but
    offered completely different explanations as to why the leases were prepared
    and signed. The trial judge found none of the explanations made any sense.
    Whatever the reason for the existence of these leases, the trial Judge observed
    the parties have attempted to alter the truth to suit their respective needs
    in these proceedings.

[18]

Another example is the registration of a $50,000 mortgage against the
    title of the second property in 2002 at a time when Katarina owned it. The
    parties disputed who knew about the mortgage, who received the proceeds, and
    who made the payments on the mortgage. After reviewing the parties testimony,
    the trial judge said [o]nce again, neither party provided a satisfactory, let
    alone realistic explanation for this factual issue.

[19]

The parties produced copies of various rent receipts issued to either
    John or Margaret. The trial judge found it curious that the receipts were
    signed by Helena and not by the owner of the property. Helena testified the
    rent receipts were issued to John to assist his applications for social
    assistance and unemployment insurance over the years to prove he was incurring
    rent obligations. John did not disagree but testified he turned his social
    assistance payments and most of his unemployment insurance benefits over to his
    mother.

(4)

The decisions under appeal

[20]

John appeals from the trial decision dated October 20, 2015. He submits
    the trial judge erred by not imposing a constructive trust on Katarinas and
    Helenas interests in the property. In the alternative, he submits that the
    trial judge erred by not ordering equitable damages for his financial and other
    contributions to Katarinas care and maintenance.

[21]

John also appeals the part of the decision on the first application
    refusing to revoke Helenas power of attorney. Johns counsel did not have a
    formal order reflecting the decision of March 23, 2015 issued, taking the
    position that as long as an order was not taken out the judge was not
functus
and was able, at trial, to revisit the findings he had made on the application.
    In the notice of appeal to this court, John appeals from the trial decision of
    October 20, 2015 as well as the application decision of March 23, 2015.

[22]

Rather than outline the trial judges reasons here, I will outline the
    relevant portions of his reasons under each ground of appeal.

ISSUES

[23]

There are three main issues in this appeal:

1)

Did the trial judge
    err in denying Johns claim based on proprietary estoppel?

2)

Did the trial judge
    err in denying Johns claim based on unjust enrichment?

3)

Did the trial judge
    err in failing to reconsider his initial decision upholding Helenas power of
    attorney in light of his subsequent adverse findings of fact against Helena at
    trial?

ISSUE 1: PROPRIETARY ESTOPPEL

[24]

Relying on this courts decision in
Clarke v. Johnson
, 2014
    ONCA 237, 371 D.L.R. (4th) 618 (C.A.), the trial judge set out the following
    test for a claim of proprietary estoppel:


i.

the owner of the property induces, encourages or allows the
    claimant to believe that he/she has or will enjoy some right or benefit over
    the property;


ii.

in reliance upon his/her belief, the claimant acts to his
    detriment to the knowledge of the owner; and


iii.

the owner then seeks to take unconscionable advantage of the
    claimant by denying him/her the right or benefit which he/she expected to
    receive.

[25]

The trial judge rejected Johns claim on the basis he was not promised a
    present interest in the property by Katarina but, rather, an interest that
    would not vest until Katarinas death. He therefore held that Johns claim
    based on proprietary estoppel was premature.

[26]

Johns counsel submits this proposition is wrong in law. She
    argues there is no requirement that the right or interest in question must be a
    present interest in the property and that a promise to bequeath is sufficient
    to ground a claim for proprietary estoppel. Johns counsel points out that in
Cowderoy v. Sorkos Estate
,
2014 ONCA 618, 325 O.A.C. 130, this
    court found a promise to bequeath was enforceable (where there had been partial
    performance).

[27]

That is so, but the court in
Cowderoy
also found the trial
    judge erred by ordering the property conveyed. This court ruled the property
    should not have been ordered conveyed because the enforceable promise was that
    the property would be bequeathed and the plaintiffs would receive the promised
    interest upon the promisors death. In
Cowderoy
, the promisor had
    died. This court set aside the conveyance and substituted an order deeming the
    bequest to have been made in the promisors will. The distinction is important
    because the estate was facing a claim for dependents relief.

[28]

As the trial judge stressed, in this case, John never claimed a
    present interest in the property but asserted he was promised he would receive
    an interest upon his mothers death. Applying the approach of
Cowderoy
,
    the trial judge noted 
perhaps Johns complaints will
    resurface in potential estate litigation at some point in the future. However,
    at this point, Johns claim for a beneficial interest in the property based
    upon proprietary estoppel fails.

[29]

The added wrinkle in this case is that Katerina has disposed of the
    allegedly promised asset and can no longer bequeath it to John. But even
    characterizing Johns claim as one for damages for the breach of the promise,
    his right to damages would arise on Katarinas death.

[30]

I therefore reject this ground of appeal. The trial judge made no error
    in holding it would be premature to assess whether John might have a claim
    based on proprietary estoppel against Katarinas estate.

ISSUE 2: UNJUST ENRICHMENT

(1)

Allocation of burden of proof in the trial judges reasons

a.

Overview

[31]

Johns counsel submits that the trial judge erred in his application of
    the test for unjust enrichment by failing to properly allocate the burden of
    proof in a case that involved the mutual conferral of benefits. In the first
    step of the proper analysis, the burden is on John to establish merely that he
    conferred a benefit on Katarina. Instead, the trial judge immediately took into
    account the benefits Katarina conferred on John by considering at the first
    step whether John conferred a 
net
benefit on Katerina.

[32]

I agree the trial judge did not properly allocate the burden of proof.
    The proper allocation leads to a different result. In a case such as this, in
    which the trial judge finds all the party witnesses entirely lacking in
    credibility, onus is usually dispositive.

b.

The trial judges approach

[33]

In this case, the trial judge recognized the importance of the burden of
    proof. Early in his reasons, he stressed that a moving party has the onus of
    factual proof of the evidence necessary to satisfy its legal burden. And he
    said for a party to seek to discharge its legal onus of proof, the court must
    first be satisfied with the credibility and reliability of the evidence in
    order to be in a position to make the relevant findings of fact.

[34]

In his unjust enrichment analysis, the trial judge placed the onus on
    John, as the claimant, to prove he conferred a net benefit on Katarina. He
    said  I must determine whether John conferred a
net
benefit to Katarina
    as the legal owner of the property (emphasis in original).

[35]

In considering the exchange of mutual benefits, the trial judge began by
    finding as a fact the accommodation John and Margaret enjoyed in Katarinas
    house over the years had a value of $250,000  $350,000. This was one of the
    few clear findings of fact he made.

[36]

Next, he held that whatever financial contributions John and Margaret
    made over the years, they did not surpass the $250,000 - $350,000 they would
    have necessarily incurred in rental payments. Similarly, he held that although
    domestic services are capable of supporting an unjust enrichment claim, any
    services John provided could not satisfy the first element of the unjust
    enrichment test on a net analysis. He came to these conclusions without
    making any specific factual findings about the amount of financial
    contributions made or the value of the services provided, though he found that
    some contributions were made and some services were provided.

[37]

As the trial judge emphasized, the burden of establishing the conferral
    of an enrichment, a corresponding deprivation, and the absence of an
    established juristic reason for the enrichment all lie upon the claimant.
    However, he failed to recognize that where the defendant claims a set-off
    because of the mutual exchange of benefits, the allocation of the burden of
    proof is more nuanced.

c.

The correct approach:
Kerr v. Baranow

[38]

The more nuanced allocation is explained by the Supreme Court of Canada
    in
Kerr v. Baranow
, 2011 SCC 10, [2011] 1 S.C.R. 269. Cromwell J.,
    writing for a unanimous court, focused directly on mutual benefit conferral and
    explained at what point in the analysis it should be considered. He stated that,
    generally, mutual benefit conferral is to be considered at the defence or remedy
    stage. In limited cases it can be taken into account at the juristic reason
    stage of the analysis, but only to the extent that it provides relevant
    evidence of the existence of a juristic reason for the enrichment: para. 109.

[39]

Cromwell J. explained the reason for this approach. He explained, at
    para. 110, that not addressing mutual benefits at the benefit/detriment stage
    of the analysis is consistent with the
quantum meruit
origins of the
    fee-for-services approach and, as well, with the straightforward economic
    approach to the benefit/detriment analysis which has been consistently followed
    by this Court. At para. 112, he added that refusing to take mutual benefits
    into account at the benefit/detriment stage is also supported by a
    straightforward economic approach to the benefit/detriment analysis which the
    Court has consistently followed.

[40]

Cromwell J. stressed that this approach should be used where the alleged
    enrichment consists of services. He said at para. 113: Provided that they
    confer a tangible benefit on the defendant, the services will generally
    constitute an enrichment and a corresponding deprivation.
Whether the
    deprivation was counterbalanced by benefits flowing to the claimant from the
    defendant should not be addressed at the first two steps of the analysis
 (emphasis
    added).

[41]

Cromwell J. went on to state that mutual benefit conferral may in some
    cases be considered at the juristic stage of the analysis but only to shed
    light on the parties reasonable expectations. He explained at para. 115:
    given that the purpose of the juristic reason step in the analysis is to
    determine whether the enrichment was just, not its extent, mutual benefit
    conferral should only be considered at the juristic reason stage for that
    limited purpose.

d.

The
Kerr
approach applies here

[42]

Counsel for the respondent urged in oral argument that Cromwell J.s
    comments in
Kerr
regarding the appropriate analytical approach to
    mutual benefit conferral applied only to the particular context of a joint
    family venture. I do not agree. While
Kerr
and its companion case
Vanasse
    v. Seguin
did involve joint family ventures, Cromwell J.s comments at
    paras. 109-115 are intended to be of more general application. I say this for five
    reasons.

[43]

First, the structure of
Kerr
itself confirms this view. At
    paras. 80-100, Cromwell J. outlines the proper approach to a claim for monetary
    relief based on unjust enrichment in a joint family venture. Where a joint
    family venture has led to wealth generation, the remedy should be calculated
    based on the share of those assets proportionate to the claimants contributions.
    Then, at paras. 101-108, Cromwell J. addresses the difference between that
    situation and one where relief must be calculated on a fee for services
    basis. Both may involve mutual benefit conferral. In the joint family venture
    context, the analysis takes mutual benefit conferral into account in assessing
    relative contribution to the joint assets. By contrast, in the fee for services
    approach, mutual benefit conferral is taken into account in the manner outlined
    at paras. 109-115  namely, it is taken into account as a set off, typically
    at the defence stage of an unjust enrichment analysis.

[44]

Second, Cromwell J. explicitly draws on non-family case law in
    explaining why mutual benefits should not be taken into account at the
    benefit/detriment stage of the analysis. At para. 112, Cromwell J. holds as
    follows: [r]efusing to take mutual benefits into account at the
    benefit/detriment stage is also supported by a straightforward economic
    approach to the benefit/detriment analysis which the Court has consistently
    followed.
Garland
is a good example
 (emphasis added). At
    para. 113, he goes on to state that although
Garland
dealt with
    payment of money, the same approach should apply where the alleged enrichment
    consists of services. These references to
Garland v. Consumers Gas Co.,
[1998] 3 S.C.R. 112 and the courts straightforward economic approach make it
    clear that Cromwell J. viewed his comments regarding the appropriate point at
    which to consider off-setting benefits as having a more general application
    outside of the family context.

[45]

Third, scholarly commentary suggests that Cromwell J.s comments
    regarding the appropriate stage of the analysis to consider off-setting
    benefits apply outside the family context. In P.D. Maddaugh and J.D. McCamus,
The
    Law of Restitution
(loose-leaf), Vol. II (Toronto: Thomson Reuters, 2016),
    the authors point to housekeeper cases as an example of where Cromwell J.s
    comments would apply, at 34:700. They explain as follows:

Where, in the typical case,
a housekeeper is persuaded by an
    elderly gentleman to provide him with housekeeping services until his death on
    the basis of an unenforceable promise that he will leave his home by will to
    the housekeeper
, housekeepers have been allowed to bring successful
quantum
    meruit
claims for the reasonable value of the services rendered in the
    expectation of compensation. In such a case,
it might be argued that the
    free room and board, if any, provided by the deceased could constitute a mutual
    benefit that ought to be taken into account in reducing the award
. The
    correct analysis of such a problem, in our view, would turn on whether the room
    and board provided to the housekeeper was understood by the parties to
    constitute partial compensation for the services rendered. If the parties did
    indeed have such an understanding, it seems inescapable that the value of that
    benefit should be deducted from the ultimate fee-for-services award. If, on the
    other hand, the parties understanding was that the room and board was being provided
    gratuitously and that the only compensation for the services rendered would be
    the home, no deduction would be appropriate, in cases where the facts
    concerning the parties intentions on this point were less than clear, the
    Court would be confronted with a difficult factual determination

In
Kerr
, the discussion of the mutual benefit issue in a
    fee-for-services context is quite focused on the juristic reason test from the
Garland
calculus and the perceived problem of determining precisely where the mutual
    benefits would be taken into account in the
Garland
calculus.
For
    Cromwell J., the correct approach in this context would be not to consider the
    mutual benefits provided by the defendant at the benefit/detriment phase of
    the
Garland
analysis
. One would simply ask whether a benefit was
    conferred and, if so, whether there was a corresponding deprivation suffered by
    the plaintiff. Mutual benefits provided by the defendant might be relevant, in
    the Courts view, in the juristic reason stage of the analysis. The fact that
    parties had agreed to exchange benefits might be relevant in establishing what
    the reasonable expectations of the parties are, a factor which, as noted
    above, might be relevant in that context. [Emphasis added].

[46]

Fourth, provincial appellate courts have applied
Kerr
outside
    the family context on many occasions: see, for example
Consulate Ventures
    Inc. v. Amico Contracting & Engineering (1992) Inc.
, 2011 ONCA 418,
    278 O.A.C. 216, at paras. 44-57;
Aviva Insurance Company of Canada v. Lombard
    General Insurance Company of Canada
, 2013 ONCA 416, 116 O.R. (3d) 161, at
    paras. 47-60;
Clarke v. Johnson,
2014 ONCA 237, 318 O.A.C. 186, at
    paras. 62-72;
Haigh v. Kent,
2013 BCCA 380, 364 D.L.R. (4th) 544, at
    paras. 31-48;
Economical Mutual Insurance Company v. The Bank of Nova
    Scotia et al.,
2015 NLCA 29, 367 Nfld. & P.E.I.R. 297, at paras. 27-41.

[47]

Of particular note on this point is the decision in
Watson v. Bank
    of America
, 2015 BCCA 362, 79 B.C.L.R. (5th) 1.
Watson
was a
    class action certification case. Merchants proposed to certify a class to sue
    credit card companies for costs imposed by their credit card infrastructure.
    They advanced various causes of action, including unjust enrichment. One of the
    defence arguments against certification was that the plaintiffs would not be
    able to demonstrate a net harm to the merchants because of various
    off-setting economic effects: paras. 162-165.

[48]

The court analysed the significance of this argument with respect to the
    unjust enrichment claim at paras. 175-181. Interestingly, the defendants
    attempted to use
Kerr
to support their off-set argument. They relied
    on Cromwell J.s comment, at para. 104, that mutual enrichments may be
    considered at the juristic reason stage to the extent that the provision of
    reciprocal benefits constitutes relevant evidence of the existence (or
    non-existence) of juristic reason for the enrichment. The court rejected this
    argument. The court noted that the defendants overstate the import of the
    comments made in
Kerr
, a family case. But it nevertheless held,
    relying on
Garland
, that the appropriate stage to consider off-setting
    benefits is at the second stage of the analysis, where the defendants would
    bear the onus of proof.

[49]

Fifth, and finally, applying the same approach in family venture and
    non-family venture cases promotes the overall doctrinal coherence of the law of
    unjust enrichment. Cromwell J.s decision in
Kerr
was itself an attempt
    to harmonize various strains of the unjust enrichment jurisprudence. As he
    noted at para. 33, there is and should be no separate line of authority for
    family cases developed within the law of unjust enrichment. Rather, the
    rights and remedies for unjust enrichment should be the same for all cases.

[50]

For all these reasons, the principle in both family and non-family cases
    of mutual benefit conferral is that any alleged off-setting benefits should be
    considered at the defence/remedy stage of the analysis where the defendant
    bears the onus of proof.

e.

Conclusion regarding the analytical approach

[51]

In this case, the trial judge asked himself the wrong initial question
    by immediately considering whether John had conferred a net benefit on Katarina.
    Instead, at the first step of the analysis, the trial judge should have
    considered whether John conferred a benefit on Katarina. I turn to that
    question now.

(2)

Did John confer a benefit on Katarina? If so, to what extent?

[52]

As I have mentioned, John claimed that he and Margaret had conferred two
    primary benefits on Katarina: (i) monetary payments and (ii) Johns personal
    domestic services. I conclude John discharged his onus of proving the conferral
    of a benefit of his personal services, but not of monetary payments.

a.

The monetary contributions

[53]

First, John and Margaret claim to have paid his mother a varying sum of
    cash each month contributing to the payment of the property taxes, utility
    bills, food and other expenses. Katarina and Helena denied that these payments
    were ever made.

[54]

The trial judge found that any financial contributions would have to
    have come from Margaret, given,
inter alia
, that John was unemployed
    for 11 of the last 22 years, while Margaret was always consistently employed,
    earning between $35,000 and $45,000 per year. Margarets evidence was
    consistent with this view: Margaret testified she gave money to John, who gave
    it to his mother, and occasionally when John was not around she gave money
    directly to Katarina.

[55]

The trial judge resisted crediting John with any of these alleged
    financial contributions. The trial judge repeatedly observed that Margaret had
    not sought any beneficial interest in the property herself. He said that if
    John and Margaret viewed any payments they made to be joint, then they should
    have advanced a joint claim for a beneficial interest in the property.

[56]

This, in my view, was an error. The trial judge should have recognized
    John and Margaret as a spousal unit and considered payments made by Margaret as
    made on behalf of John. At the very least, Margaret gifted the money to John
    who then gave it to Katarina.

[57]

In any event, the trial judge was prepared to accept that John and
    Margaret did make some financial contributions over the years: para. 153,
    though he expressed skepticism about the extent of those payments. He noted
    that any evidence of the alleged payments  is significantly lacking. He
    concluded that they do not come close to surpassing the $250,000 - $350,000
    benchmark the trial judge set. Because he reached this conclusion, the trial
    judge did not attempt to quantify the payments he accepted were made.

[58]

The lack of a definitive finding leaves this court in a difficult
    position. Johns counsel argued strenuously that the trial judge made a
    palpable and overriding error in not inferring John and Margaret must have been
    giving money to Katarina. The household expenses estimated in the record
    exceeded the ordinary ongoing household income, at least in the years after
    Katarina no longer had paying tenants. Counsel points out that Katarina did not
    work and had a minimal income. A straightforward comparison of her income and
    expenditures for the years for which evidence was tendered demonstrates that,
    to make ends meet, she must have obtained financial help from someone else. In
    2011, for example, Katarinas annual expenditures outpaced her annual income by
    almost $10,000. Helena, in her testimony, expressly denied providing financial
    support to Katarina. Johns counsel submits the trial judge should have
    inferred that, for at least a number of years, John and Margaret were making up
    the difference.

[59]

Though I recognize the force of this argument, I am not persuaded the
    trial judge committed reversible error by finding John and Margaret did not
    adduce sufficient evidence to permit him to quantify any payments they made. As
    the trial judge observed, the onus was on John to prove not only that it was
    more likely than not that he had made payments, but also to prove the probable
    amount of those payments, at least in approximate terms. The trial judge was
    entitled to find the evidence John had adduced did not allow him to determine
    with any confidence how frequently he had made payments or in what amounts.

[60]

I would not interfere with the trial judge's conclusion that John failed
    to discharge his onus to establish he conferred a benefit on Katarina by giving
    her money over the years.

b.

Johns personal services

[61]

As mentioned, the trial judge accepted that John provided some domestic
    services to Katarina and there may be value in John overseeing some of the
    work which he described in his testimony but the value of these did not amount
    to a net benefit in light of the value of the accommodation in Katarinas
    home. Again, because the trial judge immediately considered the mutual
    conferral of benefits he did not attempt to quantify the value of the services
    he accepted John provided. This Court is therefore left with task of attempting
    to ascertain the value of the personal services that the trial judge accepted
    John provided to Katarina.

[62]

Johns evidence was that he provided various domestic services to his
    mother (shovelling snow, cutting grass, maintenance and repairs, minor
    renovations, purchasing groceries, housekeeping, meal preparation, errands,
    etc.). He estimated his time commitment in respect of these services on an
    average annual basis: two hours per day from 1982 to 1989; three hours per day
    from 1990 to 2007; 6 hours per day from 2008 to 2013. The increases are
    attributable to his mothers increasing needs over time, resulting from her mounting
    frailty and dependence.

[63]

For their parts, Katarina and Helena flatly denied that John provided any
    valuable domestic services to Katarina.

[64]

There is no doubt that Katarina required substantial domestic
    assistance. The evidence is clear that Katarina spoke hardly any English and
    did not drive. She was not able to effectively deal on her own with anyone
    outside the home. From the early 1980s onwards, Katarina never worked after
    experiencing a work-related accident. She has been confined in a wheelchair for
    some time.

[65]

Further, throughout his reasons, the trial judge seems to accept that
    John performed a variety of home repair and maintenance services. For example,
    he states that there is little reason to dispute that John completed a
    renovation of the basement of the house around 1985. He also states that it
    [appears] that John took a lead role in addressing a boundary dispute with
    Katarinas neighbours. He notes that John produced photographs in support of
    work he claims to have done on the garage before hiring a third party
    contractor to complete the job, though he states that it is unclear what value
    John is claiming for his work on that project.

[66]

On the other hand, the trial judge does not appear to have been
    impressed by Katarinas and Helenas approach of baldly denying each and every
    statement John made about his contributions on these subjects. The trial judge
    noted that Katarina was so entrenched in her position that she claimed Helena
    was responsible for the basement renovations, even though Helena had already
    moved out of the property for several years.
[1]


[67]

In sum, reading the trial judges reasons as a whole, he seems to have
    implicitly accepted that John performed a variety of domestic services for
    Katarina over the years.

[68]

That said, the trial judge does not seem to have placed much value on Johns
    services. The trial judge said that some of the acts undertaken by John and
    Margaret would be those of a dutiful son and daughter-in-law. In my view, this
    observation led the trial judge into error. These services had value and were a
    benefit to Katarina. John was under no legal obligation to act as a dutiful
    son and perform these services.

[69]

In any event, to the extent that it is relevant at all, whether Johns
    actions were simply those of a dutiful son ought to have been considered at a
    later stage of the analysis. Specifically, that issue might have been
    considered in the context of a reasonable expectations analysis, where the
    defendant bears the onus of proof (a subject I discuss a few paragraphs below).

[70]

Further, there was uncontradicted evidence before the trial judge
    regarding the value of Johns services. The parties agreed that various expert
    reports could be entered into evidence at trial without testimony. The
    agreement of the parties was that the court could accept or reject the opinion
    evidence depending on the court finding the foundational facts to substantiate
    any assumptions made in arriving at these opinions. One such report was that of
    valuation consultant Gordon Krofchick. Mr. Krofchicks report was the only
    evidence that expressed an opinion of the value of Johns services. He
    concluded, using average rates for unskilled labour and based on the hourly
    estimates John gave on a per annum basis, adjusting for inflation, that John
    contributed $438,113 in domestic services from 1982 to 2013. Mr. Krofchick was
    not cross-examined. Katarina did not obtain a contradictory report.

[71]

The trial judge did not accept Helenas and Katarinas blanket denial
    that John made any contributions. Thus, we are left with Johns evidence
    regarding his estimated hourly work, which the trial judge did not reject in
    his reasons. Those estimates provide the necessary foundational facts to
    validate the assumptions underlying the Krofchick report.

[72]

Applying the trial judges meagre findings to the evidence, I conclude that
    John contributed $438,113 in domestic services to Katarina and enriched her in
    that amount.

[73]

I am mindful that this conclusion is in tension with the trial judges
    finding that Johns and Margarets services and contributions did not come
    close to his threshold for net value of $250,000 - $350,000. As I have already
    stated, the trial judge seems to have attributed little to no value to Johns
    domestic services because of his observation that those services were those of
    a dutiful son. That error infected his assessment of the uncontroverted
    evidence regarding the value of Johns services. The evidence establishes the
    monetary value of the services the trial judge implicitly found that John
    performed.

(3)

Was there a corresponding deprivation to John?

[74]

The corresponding deprivation to John is evident and follows necessarily
    from proof of the enrichment. In a case involving the provision of personal
    services such as this one, the party providing personal services suffers a
    corresponding deprivation of their own time and effort. This deprivation
    mirrors the enrichment in nature and extent. John suffered a corresponding
    deprivation of $438,113.

(4)

Was there a juristic reason for the enrichment?

[75]

At the final stage of the
prima facie
case of enrichment
    analysis, the plaintiff must show that the enrichment did not occur pursuant to
    an established category of juristic reason. These categories include contract,
    disposition of law, donative intent, and other valid, common law, equitable or
    statutory obligations. If there is no juristic reason from an established
    category, then the plaintiff has made out a
prima facie
case under the
    juristic reason component of the analysis:
Kerr,
at para. 43. The
de facto
burden of proof then switches to the defendant to show there is a
    reason why the enrichment should be retained because in all the circumstances
    there is another reason to deny recovery even though the case falls outside the
    existing categories of juristic reason:
Kerr
, at para. 44. Cromwell J.
    at para. 114 stressed that the analysis of juristic reason at this stage is not
    to determine the value of the enrichment or whether reciprocal benefits should
    be set off against the enrichment. At this stage, the limited role of
    considering reasonable expectations is to reveal whether there is a reason for
    the defendant to retain the enrichment. Generally, reciprocal benefits are to
    be considered at the defence/remedy stage, as I discuss below.

[76]

John testified that his reason for providing the personal services was
    his mothers promise that, if he did so, he would receive half of the house
    upon her death. This falls outside the established categories of juristic
    reason to permit Katerina to retain the benefit.

[77]

As noted in
Kerr
, once the plaintiff has demonstrated that
    there is no categorical juristic reason, the defendant may still argue that
    there is a juristic reason outside of the established categories. The
    reasonable expectations of the parties may be relevant to this inquiry insofar
    as they show a juristic reason for enrichment. In addition, the defendant may
    seek to demonstrate, at the defence and remedy stage, that the plaintiff did
    not reasonably expect compensation.

[78]

Counsel for Helena and Katarina did not seriously advance an argument
    there was a juristic reason outside the established categories based on
    reasonable expectations. He merely argued that Katarina and Helena baldly
    denied the services were provided (which the trial judge rejected) and that
    John received rent-free accommodation (which I have noted should be considered
    at the next stage).

[79]

To the extent reasonable expectations may be considered at this stage,
    it seems to me that there was ample evidence that John reasonably expected to
    be compensated for his contributions to Katarinas maintenance and care. In
    oral argument, counsel for Katarina was asked why John believed he was entitled
    to half of the value of the home, and he candidly admitted that Katarina
    probably told him that. I recognize, as mentioned above, that the trial judge
    suggested that Johns contributions were simply those of a dutiful son. That
    suggestion, however, was not made in the context of analysing a reasonable
    expectations argument, either at the juristic reason stage or at the defence
    and remedy stage where the defendant bears the onus of proof. The evidence
    before the trial judge and counsels admission suggest that John reasonably
    expected some compensation. It is clear Katarina and Helena did not discharge
    the onus on them to point to a juristic reason outside the established
    categories that would entitle Katarina to retain the benefit conferred by John,
    without compensation.

(5)

Prima facie
case of enrichment

[80]

I conclude accordingly that John has discharged his onus to establish a
prima
    facie
case of enrichment.

(6)

Did Katarina confer off-setting benefits on John?

[81]

According to the framework Cromwell J. set out in
Kerr
, John
    having established a
prima facie
case of enrichment, Katarina bore the
    onus of establishing a valid defence, or a valid reason to limit the requested
    remedy. It is at this stage that the alleged offsetting benefit of rent-free
    accommodation ought to have been considered.

[82]

The trial judge was entitled to conclude on the evidence before him that
    the market value of the accommodation in which Margaret and John lived was
    between $250,000 and $350,000.

[83]

That said, the trial judges error was to implicitly treat proof of the accommodation
    value as proof of an offsetting benefit. That approach was wrong in law. The
    onus remained on Katarina, who was claiming an offsetting mutual benefit, to prove
    rent-free accommodation was provided. By initially considering whether John
    provided a net benefit to Katarina, the trial judge in effect placed the onus
    on John to prove he paid rent. In the proper analysis, in which the offsetting
    mutual benefit is considered as a defence, the onus was on Katarina to prove
    John did not pay rent. She did not meet this onus for several reasons.

[84]

First, Katarina testified that she never expected to receive rent from
    John. This admission presents great difficulty for her in discharging the onus
    of proving a valid set-off. As noted by Maddaugh & McCamus, quoted above,
    if the expectation of the parties was that one party would provide personal
    services and the other would deduct from the value of those services the cost of
    room and board, then a valid set-off may be made out. But if the parties
    understanding was that the room and board was being provided gratuitously,
    then no deduction is appropriate.

[85]

Second, even if the parties had an expectation that John would pay rent,
    the trial judge did not make a finding that John did not pay rent. There was
    considerable dispute regarding the explanation for the various rent receipts
    and leases produced at trial. The trial judge did not resolve the dispute, and
    after reviewing the deeply contradictory evidence of the witnesses, concluded at
    para. 67:

I do not accept any of the explanations offered by the parties
    for the existence of these leases.  There must have been a reason why the
    parties signed so many leases over a number of years.  However, they have
    attempted to alter the truth to suit their respective needs in these
    proceedings.

[86]

In effect, the trial judge found himself unable to determine whether the
    evidence showed that rental payments had been made. As he placed the burden of
    proof on John, he was not satisfied that rent had been paid. However, at this
    stage, the burden should properly have been placed on Katarina. The trial judge
    rejected Katarinas and Helenas explanations for these rent receipts and
    leases as well.

[87]

I am satisfied, on the findings of the trial judge, Katarina did not
    satisfy the burden on her to prove she provided rent-free accommodation to
    John.

(7)

Conclusions on Unjust Enrichment

[88]

For those reasons, Johns claim for unjust enrichment is made out. John
    established a
prima facie
case for enrichment, conferring a $438,113
    benefit on Katarina in the form of personal services. Katarina did not
    establish a valid set-off due to her failure to prove that John and Margaret
    did not pay rent. Consequently, I conclude that John is entitled to equitable
    damages in the amount of $438,113.

[89]

I would therefore set aside the trial judges dismissal of Johns
    application insofar as it claimed equitable damages and replace it with an
    order granting Johns claim in the amount of $438,113 to be recovered from the
    proceeds of the sale of the house held in trust by the real estate solicitor to
    the credit of this litigation.

ISSUE 3: THE POWER OF ATTORNEY

[90]

Johns counsel advances two arguments seeking to set aside the judges
    decision dismissing his application to revoke Helenas power of attorney and
    order Helena to account for her management of Katarinas funds.

[91]

First, Johns counsel argues the trial judge should have revisited his
    findings made in his March 23, 2015 ruling in light of the evidence and his
    findings made at trial. Johns counsel had refused to take out a formal order
    reflecting the March 23, 2015 decision so that the trial judge would not be
functus
and would have jurisdiction to revisit his earlier findings. While I agree that
    the trial judge was not
functus
and had the jurisdiction to revisit
    his earlier findings, I am satisfied that it was within his discretion to
    refuse to do so.

[92]

Second, in the alternative, John appeals from the judges March 23, 2015
    ruling and seeks to admit Katarinas and Helenas
viva voce
testimony
    at trial as fresh evidence on the appeal.

[93]

Counsel for Katarina and Helena resists the fresh evidence application.
    He submits that John, by exercising due diligence, could have obtained and
    tendered Katarinas and Helenas
viva voce
testimony on the return of
    the application. He points out that r. 39.03(4) of the
Rules of Civil
    Procedure
,
R.R.O. 1990, Reg. 194 permits a party to seek to examine
    a person as a witness at the hearing of a motion or application in the same
    manner as at trial, and John did not seek to do so. I would not give effect to
    this argument. Given established practice, I am satisfied John would not have
    been granted leave to call
viva voce
evidence on the return of the
    application.

[94]

I would admit Katarinas and Helenas testimony at trial as new
    evidence. It is potentially decisive and may be reasonably expected to affect
    the result.

[95]

Turning to the substantive issue, it is evident that some of the trial
    judges findings made after the trial are inconsistent with the findings in his
    March 23, 2015 reasons.

[96]

Take, for example, the trial judges emphatic findings at trial about
    Helenas domineering and bullying nature and her influence over Katarina, along
    with his observation of Helena sitting in the back of the courtroom trying to
    influence her mothers testimony. He said he had little to no doubt that
    Helena has orchestrated all of the events giving rise to the transfer of the
    property to herself and Katarina in joint tenancy and the execution of new
    Wills. He observed that Katarina did not even appear aware of Helenas
    transferring title to the property. He had no difficulty in concluding that
    this transfer was not the subject of any alleged trust relationship, and was
    carried out for the purpose of Helena acquiring the right of survivorship by
    reason of ownership of the property in joint tenancy. These can be contrasted
    with his earlier findings that there was no evidence Helena exerted undue
    influence on Katarina and that the evidence did not establish mismanagement or
    financial abuse of Katarina by Helena.

[97]

While the limited evidence before the trial judge on the application may
    not have demonstrated undue influence, it is obvious from his trial reasons he
    considered it abundantly clear that Helena exerted undue influence over
    Katarina.

[98]

Accepting those trial findings as fresh evidence I would conclude that
    Helena exercised undue influence over Katarina. It follows that I would set
    aside the judges dismissal of Johns application and replace it with an order
    granting Johns application, revoking Helenas power of attorney and requiring
    Helena to account for her management of Katarinas property.

CONCLUSION

[99]

I would allow the appeal and order that John is entitled to equitable
    damages in the amount of $438,113 to be recovered from the proceeds of the sale
    of the house held in trust by the real estate solicitor to the credit of this
    litigation. Further, I would order that Helenas continuing power of attorney
    over Katarinas property be revoked and Helena be required to account for her
    management of Katarinas property.

[100]

Counsel
    may make written submissions as to costs of the appeal and the proceedings
    below. Such submissions are to be no longer than five pages in length and filed
    within 15 days of the release of this decision.

Released: December 15, 2016 (EAC)

R.G. Juriansz J.A.

I agree. E.A. Cronk J.A.

I agree. David Brown J.A.





[1]
I note parenthetically that some of Katarina and Helenas blanket denials are
    extremely implausible. Many are on subjects about which they are highly
    unlikely to have had direct knowledge. For instance, Helena denied that John
    had paid for materials purchased in support of repairs to the front and rear
    porches. She did so notwithstanding Johns production of receipts for those
    materials, and without testifying that she was there to witness someone else
    having paid for them.


