





CITATION:
Grover v. Hodgins, 2011 ONCA 72



DATE: 20110127



DOCKET: C51812



COURT OF APPEAL FOR ONTARIO



Doherty, Watt and Epstein JJ.A.



BETWEEN



Chander Grover and Tabassum Grover



Defendants (Appellants/
Respondents by way of cross-appeal)



and



John Hodgins and Ann Dorans



Plaintiffs (Respondents/
Appellants by way of cross-appeal)



Yavar Hameed, for the appellants/respondents by way of
          cross-appeal



Kellie Stewart, for the respondents/appellants by way of
          cross-appeal



Heard: November 19, 2010



On appeal from the order of Justice James McNamara of the
          Superior Court of Justice, sitting as a single judge of the Divisional Court,
          dated July 20, 2009.



Epstein J.A.:



[1]

This appeal and cross-appeal involve a decision of a deputy judge of the
    Small Claims Court granting judgment in favour of the respondents (the appellants
    in the cross-appeal). The deputy judges order was for a portion of the legal
    fees that the respondents and other plaintiffs in a law suit in British
    Columbia paid to prosecute an action relating to a condominium complex in which
    they were all owners.  The Small Claims Court action was based in contract or,
    in the alternative, unjust enrichment.  The claim in contract failed as the
    trial judge held that the appellants had not agreed to contribute to the legal
    costs of the British Columbia law suit.  However, he did find the appellants (the
    respondents in the cross-appeal) liable to the respondents for a share in the
    legal fees, based on unjust enrichment.

[2]

In this appeal, the appellants challenge the trial judges unjust
    enrichment analysis.  The respondents cross-appeal on the basis that the trial
    judge erred in finding that the appellants were not contractually bound to
    contribute to the costs of the British Columbia action.

[3]

A further, and arguably more important, issue is also raised in this
    matter:  namely, the jurisdiction of a deputy judge of the Small Claims Court
    to grant equitable relief.  Before this court, the parties addressed their
    arguments only to the issues involving the respondents claims in contract and
    unjust enrichment.  However, during oral argument, counsel were asked to make
    written submissions on the extent, if any, of the jurisdiction of the Small
    Claims Court to grant equitable relief.  The court was concerned with the issue
    of whether the trial judge had the power to grant relief based on unjust
    enrichment.

[4]

In their submissions, both parties took the position that the Small
    Claims Court has jurisdiction to grant such relief when the order involves the
    return of personal property or a monetary payment within the limit of the Small
    Claims Court.

[5]

For the reasons that follow, I agree with this position.  As for the
    substantive issues, in my view the respondents claims both in contract and in
    unjust enrichment must fail.  I would therefore allow the appeal and dismiss
    the cross-appeal.

I.

Background

1.

The British Columbia action

[6]

At the relevant time, the appellants, Chander Grover and Tabassum
    Grover, and the respondents, John Hodgins and Ann Dorans, lived in Ontario and
    owned condominium units in a complex located in British Columbia.  Concerns
    arose over the majority owners management of the condominium complex.  The
    Ontario owners believed that the value of their units was depressed due to the
    poor management of the complex.  As a result, a group of 12 Ontario-based
    owners, including the respondents, retained a British Columbia lawyer.  The
    lawyer was asked to initiate an action for, among other relief, damages arising
    out of the mismanagement of the condominium complex.

[7]

On July 5, 2004, the lawyer sent a letter to the Ontario-based
    condominium owners, including the appellants and the respondents, explaining
    the potential conflicts of interest involved in a joint retainer agreement. 
    The closing sentence of the letter read as follows:  If you are satisfied that
    you wish us to continue to act for you on the basis outlined above, please sign
    the enclosed duplicate copy of this letter and return it to us.

[8]

The appellants did not sign the letter.  The other 12 condominium owners
    in the Ontario group, including the respondents, agreed to share the legal
    costs of the British Columbia action and each ultimately contributed his or her
    share, which amounted to $7,550 each.

[9]

In August 2005, the Supreme Court of British Columbia appointed an
    administrator to exercise the powers of the council of condominium owners and
    to prepare an expert report to the court on the financial management of the
    complex.  Subsequently, the majority investors sold most of their units and
    ceased their management of the complex.  The litigation effectively came to an
    end.

2.

The Ontario proceedings

[10]

In April 2006, the respondents brought this action against the
    appellants in the Ontario Small Claims Court, claiming $7,550 as damages
    arising from the breach of an alleged agreement to contribute to the legal
    costs incurred in prosecuting the British Columbia action.  In the alternative,
    the respondents claimed they were entitled to the money on the basis of unjust
    enrichment.

[11]

The trial judge dismissed the claim in contract.  Although he found that
    the appellants were aware of the litigation and interested in its result, there
    was no meeting of the minds that would have formed a contract whereby they
    agreed to share legal costs.  With respect to the claim in unjust enrichment,
    the trial judge found that the appellants had been enriched by the efforts of
    the respondents, as, following the removal of the management under which the
    problems had developed, they had sold their condominium unit at a significantly
    higher value.  He also found that the respondents had suffered a corresponding
    deprivation by paying their $7,550 share of the legal costs.  Finding no
    juristic reason for the enrichment, he granted judgment in favour of the
    respondents.

[12]

The appellants appeal to the Divisional Court was dismissed on July 20,
    2009, by way of a brief endorsement, as follows:

This is an appeal and cross-appeal from the
    decision of Deputy Judge Stauffer of the Small Claims Court at Ottawa dated
    June 22/07 and released July 10/07.

The standard of review in an appeal from such a
    judgment requires, if I am to overturn it, a finding that the Deputy Judge made
    an overriding & palpable error, that he misapplied the law, or that he
    misapprehended the evidence.

I have carefully considered the materials, the
    submissions of counsel & the decision of the Trial Judge.  I am not
    [persuaded], based on that review, that Judge Stauffer made either an error in
    law nor a palpable & overriding error in coming to the factual conclusions.

A Trial Judge is only required to give sufficient
    reasons to permit appellate review and to allow the parties to know why the
    decision was as it is.  He or she is not required to comment on all issues at
    the trial, nor on each and every argument presented to him or her.  It is also
    not required that the Judge explain their entire thought process in arriving at
    their decision as long as there is a logical connection between the decision
    and the grounds for reaching that decision.

In this case I had no difficulty in terms of the
    logical connection between the Trial Judges decision & his grounds for
    reaching same.

In the circumstances the Appeal and cross-appeal
    are both dismissed.

As success was divided, each side will bear its own
    costs.

[13]

By order dated February 22, 2010, this court granted leave to appeal.

II.

THE ISSUES


1.

Does
      a deputy judge of the small claims court have jurisdiction to grant equitable
      relief?

2.

Did
      the deputy judge err in granting judgment on the basis of unjust enrichment in
      this case?

3.

Did
      the deputy judge err in finding that the appellants were not bound by contract
      to contribute to the legal costs of the British Columbia action?


III.

ANALYSIS

[14]

I will first deal with the decision of the Divisional Court.  The
    reasons, set out above in their totality, contain no reference to the case
    being decided.  As such, they do not permit any meaningful appellate review and
    therefore constitute legal error:  see
R. v. Brown
(2002), 61 O.R. (3d)
    619 (C.A.), at para. 30.  I must therefore approach my analysis on the basis of
    its being a review of the decision of the trial judge.

[15]

It is logical to start with the issue raised by this court concerning
    the scope of the equitable jurisdiction of the Small Claims Court.

1.

Does the Small Claims Court have jurisdiction to grant equitable
    relief?

a.

The legislation

[16]

The Small Claims Court is a statutory court that derives its
    jurisdiction solely through the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43.  Section 23 is of primary relevance in this appeal, while section 96 is
    also informative to the analysis.
[1]

[17]

Section 23 is the section of the Act that sets out the jurisdiction of
    the Small Claims Court:

23. (1) The Small Claims Court,

(a) has jurisdiction in any action for the payment
    of money where the amount claimed does not exceed the prescribed amount
    exclusive of interest and costs; and

(b) has jurisdiction in any action for the recovery
    of possession of personal property where the value of the property does not
    exceed the prescribed amount.

[18]

Section 96, in dealing with the equitable jurisdiction of all courts,
    provides as follows:

96. (1) Courts shall administer concurrently all
    rules of equity and the common law.

(2) Where a rule of equity conflicts with a rule of
    the common law, the rule of equity prevails.

(3) Only the Court of Appeal and the Superior Court
    of Justice, exclusive of the Small Claims Court, may grant equitable relief,
    unless otherwise provided.

b.

The jurisprudence

(i)

The Superior Court

[19]

The case most often cited in support of the proposition that the Small
    Claims Court has jurisdiction to grant equitable relief is the decision of the
    Divisional Court in
936464 Ontario Ltd. v. Mungo Bear Ltd.
(2003), 74
    O.R. (3d) 45 (Div. Ct.), in which a remedy based on quantum meruit was in
    issue.  Heeney J., at paras. 12-15, concluded that notwithstanding that quantum
    meruit is part of the restitutionary group of remedies, its origins can be
    found in the common law and therefore the court does not need equitable
    jurisdiction to award it.

[20]

However, in extensive
obiter dicta
, Heeney J. went on, in paras.
    20-40, to canvass the equitable jurisdiction of the Small Claims Court.

[21]

Heeney J. noted that while s. 96(3) specifically excludes the Small
    Claims Court from the list of courts able to grant equitable relief, it does so
    with the proviso found in the words unless otherwise provided.  He reasoned
    that s. 23(1)(a) provides otherwise in the words any action  wording sufficiently
    broad so as to encompass both common law claims and equitable claims.  He
    therefore concluded that the only meaningful restriction on the jurisdiction of
    the Small Claims Court was that the relief claimed must be for the payment of
    money or the return of property, the value of which falls within the monetary
    limit prescribed by regulation.

[22]

Two subsequent decisions adopted the reasoning of Heeney J. in relation
    to the jurisdiction of the Small Claims Court to grant equitable relief, although,
    as in the case of
Mungo Bear
, the analysis was not necessary for either decision:
311874 Ontario Ltd. (c.o.b. Grossi Plumbing & Heating) v. 1461763
    Ontario Ltd. (c.o.b. Per Bacco Ristorante)
, [2006] O.J. No. 2779 (S.C.) and
Tang v. Jarrett
(2009), 251 O.A.C. 123 (Div. Ct.).

[23]

While a number of other decisions of the Superior Court have implicitly
    and explicitly held that the Small Claims Court has jurisdiction to consider
    equitable claims for relief, there appears to be no binding authority for that
    proposition.
[2]

The Small Claims
    Court

[24]

A review of Small Claims Court decisions suggests that the court has
    been operating on the basis that it has jurisdiction to consider claims for equitable
    relief and, in appropriate cases, to grant it.

[25]

In
Szeib v. Team Truck Centres  Freightliner
, [2001] O.J. No.
    2208 (Sm. Cl. Ct.), Searle Deputy J. specifically considered the jurisdictional
    issue and held that the Small

Claims Court has jurisdiction to grant relief from forfeiture,
    a form of equitable relief.  In a myriad of other cases, the Small Claims Court
    has, without any analysis of jurisdiction, considered and awarded (or rejected
    after consideration) remedies in equity, particularly based on unjust
    enrichment.  See, for example,
P & G Electronics Ltd. v. Scottish and
    York Insurance Co.
, [1992] O.J. No. 2707 (Sm. Cl. Ct.);
Gula v. Ontario
    Hydro
, [1995] O.J. No. 2392 (Sm. Cl. Ct.);
Michael Davies Plymouth
    Chrysler Ltd. v. Shabsove
, [1995] O.J. No. 5017 (Sm. Cl. Ct.);
Bell,
    Baker v. Wong
, [1996] O.J. No. 5443 (Sm. Cl. Ct.);
Canada Post Corp. v.
    Asquith
, [1999] O.J. No. 5583 (Sm. Cl. Ct.);
1346597 Ontario Ltd. v.
    Riddiford
, [2007] O.J. No. 5502 (Sm. Cl. Ct.);
Causeway View Road South
    Assn. v. Foster
(2009), 91 R.P.R. (4
th
) 314 (Sm. Cl. Ct.).

c.

Analysis of the equitable jurisdiction of the
    Small Claims Court

[26]

Strictly speaking, my determination set out below that the respondents
    claims in contract and in unjust enrichment must fail is sufficient to dispose
    of the matter.  However, the law concerning the jurisdiction of the Small
    Claims Court to grant equitable relief is unsettled is a matter of some importance. 
    Furthermore, decisions of the Small Claims Court infrequently reach our court. 
    Therefore, in my view, it is appropriate to provide an analysis of the issue.

[27]

The resolution of whether the Small Claims Court has
    jurisdiction to grant equitable relief involves basic statutory
    interpretation.  According to the well-known case of
Rizzo & Rizzo Shoes
    Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21, the analysis must focus on the
    words of the relevant statutory provisions, read in their entire context and in
    their grammatical and ordinary sense and interpreted harmoniously with the
    scheme and the object of the Act and with the legislatures intention.

[28]

I start with the wording of the relevant statutory provisions, taken in
    context.

[29]

As stated above, s. 23 of the
Courts of Justice Act
is the
    section that delineates the jurisdiction of the Small Claims Court.  It gives
    the court jurisdiction in any action for the payment of money or the recovery
    of possession of personal property with a value within the prescribed limit. 
    This is a wide grant of jurisdiction.  I agree with Heeney J. in
Mungo Bear
that the wording any action is sufficiently broad so as to encompass both
    common law and equitable claims.

[30]

But, this observation begs the very question at issue  whether this
    wording is also broad enough to include jurisdiction to grant equitable
    remedies.  In my view, it is.

[31]

I agree with Heeney J. at para. 29 of
Mungo Bear
that s. 23, s.
    96(1) and s. 96(3) are to be read as a coherent package.  As discussed above,
    s. 23 of the Act is broad enough to allow the Small Claims Court to deal with
    claims in common law and equity.  Under s. 96(1), the courts, including the
    Small Claims Court, are authorized to concurrently administer all rules of
    equity and the common law.  It would be irrational for the legislators to give the
    Small Claims Court authorization to administer rules of equity and deal with
    claims in equity and then specifically preclude the court from granting any equitable
    relief.  It only makes sense if the wording where otherwise provided in s.
    96(3) is interpreted to mean that the Small Claims Court is able to grant
    equitable relief within the limits of its jurisdiction set out in s. 23:  namely,
    to order the payment of money or the return of personal property.

[32]

Notwithstanding the availability of this interpretation of the plain
    language of the
Courts of Justice Act
, it is clear from the
    jurisprudence that there has been some uncertainty involving the reconciliation
    of the broad wording in s. 23 of the Act with the apparent limitation expressed
    in s. 96(3).

[33]

This takes me to legislative intent.

[34]

The legislative history of the relevant provisions of the
Courts of
    Justice Act
, particularly ss. 96(3) and 96(1), is available as a tool for
    determining the intention of the legislature:
Re Rizzo
at para. 31.

[35]

In 1984, the
Courts of Justice Act
replaced the
Judicature
    Act
.  In
Ontario Civil Practice, 1996
(Scarborough:  Carswell,
    1995), Watson and McGowan usefully provide Ministry commentary that accompanied
    changes to the
Courts of Justice Act
.  In the commentary accompanying
    the 1984 Act, the Attorney General clarified that the statement in s. 109(1) (now
    s. 96(1)) courts shall administer concurrently all rules of equity and the
    common law was intended to encompass the meaning of the statement in the
Judicature
    Act
that courts shall recognize all claims and defences, whether arising
    under the common law or equity.  This means that all courts, including the
    Small Claims Court, have the ability to consider equitable claims, such as a
    claim based on unjust enrichment.

[36]

Section 96(3) grants the superior court

broad

jurisdiction
    to award equitable relief.  When the
Courts of Justice Act
was enacted
    in 1984, the Small Claims Court was part of the provincial court system. 
    Section 109(3) (now s. 96(3)), which granted equitable jurisdiction to the superior
    courts of the province, did not apply to the Small Claims Court.  However, in 1989,
    important changes were made to the organization of the Ontario court system. 
    With the passage of Bill 2,
An Act to amend the Courts of Justice Act, 1984
,
    2d Sess., 34
th
Leg., Ontario, 1989 (assented to 15 November 1989),
    S.O. 1989, c. 55, the Small Claims Court became a branch of the newly-created
    Ontario Court (General Division), part of the provinces superior

court.

[37]

Of particular interest in terms of the 1989 legislative changes is that
    the first version of Bill 2 included a provision that the Court of Appeal, the
    Unified Family Court and the Ontario Court (General Division),
excluding the
    Small Claims Court
, may grant equitable relief, unless otherwise provided
    (emphasis added).

[38]

However, the Standing Committee on Administration of Justice approved an
    amendment to Bill 2 striking out the words excluding the Small Claims Court. 
    The representative of the Attorney General explained to the Committee that the
    reference to the Small Claims Court was being removed because it was
    unnecessary (Ontario, Legislative Assembly, Standing Committee on
    Administration of Justice, Transcripts of Meetings (31 July 1989) at J-5
    (Steven Offer)):

As members of the committee will be aware, the
    jurisdiction of the Small Claims Court is limited to two aspects:  first, for
    the payment of money and, second, for the return of personal property.

Having said that, we have an amendment before us to
    section 15, which speaks to subsection 109(3) [now s. 96(3)] of the
Courts
    of Justice Act
.  Basically, this amendment talks to the granting of
    equitable relief.  This amendment is saying that we want to exclude the Small
    Claims Courts jurisdiction from subsection 109(3), which talks to the granting
    of equitable relief.  We believe that that is not necessary, because the Small
    Claims Court does not have jurisdiction under that matter.

[39]

The Standing Committee similarly amended the proposed section 110 (now
    s. 97) (declarations of right) and section 114(1) (now s. 101(1)) (interlocutory
    injunctions, mandatory orders and receivers) by removing the words excluding
    the Small Claims Court.  The rationale for these amendments was the same:  the
    Small Claims Court has not been provided the jurisdiction in s. 23(1) to grant
    declarations of right or injunctive relief so it was considered unnecessary to
    specifically exclude the court from these provisions.

[40]

Despite the governments assertion that the words excluding the Small
    Claims Court were unnecessary, the 1989 amendments created some confusion as
    to whether the Small Claims Court had been provided with jurisdiction to grant
    equitable relief.

[41]

This confusion is reflected in
Ontario Civil Practice, 1990
,
    (Toronto: Carswell, 1990), where Watson and McGowan queried whether the Small
    Claims Court had been given equitable jurisdiction by the 1989 changes, in the
    following observations:

Apparently the rationale for the amendment [to Bill
    2] (deleting the specific exclusion with regard to the Small Claims Court) was
    that since the Small Claims Court is a court of limited jurisdiction, it has
    only that jurisdiction which is conferred on it by statute, and the relevant
    statutory provision does not confer general equitable jurisdiction on the Small
    Claims Court:  see s. 22 [now s. 23].  The competing argument is that by s.
    21(1) [now s. 22(1)] the Small Claims Court is made a branch of the General
    Division and as such is now one of the courts enumerated in s. 109(3) [now s.
    96(3)].

[42]

The second change of significance took place in 1994, when Bill 136,
An
    Act to amend the Courts of Justice Act and to make related amendments to the
    Freedom of Information and Protection of Privacy Act and the Justices of the
    Peace Act
, 3rd Sess., 35th Leg., Ontario, 1994 (assented to 23 June 1994),
    S.O. 1994, c. 12, amended both ss. 96(3) and 97 by inserting the words
    exclusive of the Small Claims Court.  There was no discussion of these
    changes in either the legislative or committee debates.

[43]

This insertion appears to have prompted Watson and McGowan to remove
    their earlier comment about the potential ambiguity concerning whether the
    Small Claims Court could grant equitable relief in
Ontario Civil Practice,
    1996
(Scarborough:  Carswell, 1995).  In its place they provided Ministry
    commentary from the 1994 amendments saying that sections 96(3) and 97 of the
    Act were amended to make it clear that the Small Claims Court cannot give
    equitable relief or a declaratory judgment.

[44]

In my opinion, the series of changes to s. 96(3) and s. 97 in which the
    reference to the Small Claims Court was proposed to be included, removed, and
    then later inserted demonstrate that the legislative drafters struggled with how
    to make it clear that the Small Claims Court, once it became part of the superior
    court with the 1989 reorganization, did not acquire that courts broad jurisdiction
    to grant equitable relief.  It follows that the ultimate decision to include
    the words exclusive of the Small Claims Court in ss. 96(3) and 97, was to clarify
    that the Small Claims Courts becoming a part of the superior court did not
    alter the courts jurisdiction.

[45]

This conclusion is reinforced by an examination of the purpose of
    the Small Claims Court itself.

[46]

T
he history of the Small Claims Court is one of
    progressive development toward providing increased access to justice.  The
    origins of the Small Claims Court in Ontario may be found in 1792 when
the
    first provincial Parliament of Upper Canada determined that to contribute to
    the conveniency of the inhabitants of this province, to have an easy and speedy
    method of recovering small debts, a separate court was required (
An act for
    the more easy and speedy recovery of small debts
, 1792 (Upper Canada) 32
    Geo. III, c. 6). Courts of Request were established and empowered to hear and
    determine matters of debt up to forty shillings, and to decree as to them
    should seem just in law and equity.  Thus, right from the inception of the
    Courts of Request, it is clear that the legislature, in establishing the Small
    Claims Court, intended to provide conveniency  increased access to justice.

[47]

In the report by Ontario Civil Justice Review,
First Report of the
    Civil Justice Review
(Toronto:  Ontario
Civil Justice Review
, 1995),
    the authors noted the following. Frequently referred to as the people's
    court, today's Small Claims Court in Ontario is seen as the one place where a
    private citizen can have ready and inexpensive access to civil justice.  The
    Small Claims Court is more hospitable to the ever-increasing number of
    self-represented litigants.  Procedures are simpler in the Small Claims Court;
    matters are decided in a summary way under relaxed rules of evidence. There are
    limits on the costs that may be recovered by a successful party in the Small
    Claims Court.  These features contribute to an increase in the accessibility of
    our system of justice.

[48]

Interpreting the words of the
Courts of Justice Act
in such a way
    as to restrict the jurisdiction of the Small Claims Court in a manner that
    would preclude it from awarding equitable relief in resolving claims properly
    before it would run counter to this important objective.

[49]

It follows that the interpretation of the
Courts of Justice Act
provisions
    relevant to the jurisdiction of the Small Claims Court that is in keeping with
    the wording of the Act and is consistent with the intent of the legislature, apparent
    not only from the legislative amendments but also from the rationale behind
    establishing the Court itself, is that the Small Claims Court has jurisdiction
    to award legal or equitable relief where the relief requested is a monetary
    payment under the limit of $25,000 or the return of personal property valued
    within that limit.

2.

Did the trial judge err in granting judgment
    based on unjust enrichment?

[50]

Having determined that the trial judge had jurisdiction to grant relief
    based on a claim of unjust enrichment, the next question is whether he erred in
    doing so on the facts of this case.

[51]

I now therefore turn to the trial judges conclusion that, based on
    unjust enrichment, the respondents were entitled to judgment in the amount of
    the contribution paid by each member of the Ontario-based group of condominium
    owners to the legal fees of the British Columbia action.

[52]

As the trial judge correctly stated, the cause of action for unjust
    enrichment has three elements:  (1) an enrichment of the defendant; (2) a
    corresponding deprivation of the plaintiff; and (3) an absence of any juristic
    reason for the enrichment:
Pettkus v. Becker
, [1980] 2 S.C.R. 834 at p.
    848.

[53]

The trial judge held that the respondents established each of these
    requirements.  I respectfully disagree.  In my view, the respondents met none
    of the requirements and the claim in unjust enrichment must therefore fail.

[54]

First, the trial judge erred in holding that the appellants were
    enriched through the efforts of the respondents and the expenses they incurred
    to fund the British Columbia litigation.

[55]

The trial judge found that the appellants received a benefit because
    their condominium unit increased in value following the removal of the old
    management through the B.C. litigation.  Thus, he held that the appellants were
    enriched by the respondents litigation that was ultimately to the advantage of
    the appellants.  I disagree.

[56]

What the trial judge overlooked is the difference between unjust
    enrichment through the provision of money and unjust enrichment through the
    provision of services. This difference was explained by Laskin J.A. in
Sharwood
    & Co. v. Municipal Financial Corp.
(2001) 53 O.R. 3d 470 (C.A.), at para.
    26: The receipt of money is always a benefit to the defendant.  The receipt of
    services may not be a benefit because the defendant may not have wanted the
    services or may not have wanted them if it had to pay for them.

[57]

The provision of services will constitute a benefit in two situations:  (a)
    where they were performed at the request of the defendant, or (b) where the
    defendant has been incontrovertibly benefited:  see Maddaugh and McCamus in
    their text
Law of Restitution
, looseleaf (Aurora: Canada Law Book,
    2010), at p. 3-17.

[58]

There is no evidence that the appellants requested that the respondents
    subsidize their contribution to the legal services or that they requested the
    services themselves, so the issue of whether the appellants were enriched comes
    down to whether they were incontrovertibly benefited.

[59]

In
Peel (Regional Municipality) v. Canada; Peel (Regional
    Municipality) v. Ontario
, [1992] 3 S.C.R. 762, McLachlin J. explained the
    basic concept of an incontrovertible benefit at p. 795:

An incontrovertible benefit is an unquestionable
    benefit, a benefit which is demonstrably apparent and not subject to debate and
    conjecture.
Where the benefit is not clear and manifest, it would be wrong
    to make the defendant pay, since

he or she might well have preferred to
    decline the benefit if given the choice
. [Emphasis added.]

[60]

Here, based on the trial judges conclusion that the evidence is far
    from clear to draw a direct link between the departure of the former managers
    [and] an increase in value of the units, it cannot be said the appellants
    received any demonstrably apparent benefit.

[61]

For these reasons, I cannot accept the finding of an enrichment or a
    benefit.

[62]

Nor can I agree with the trial judges finding of a corresponding
    deprivation.  He found the deprivation to be the $7,550 the respondents paid
    toward the legal costs of the British Columbia action.  This finding fails to
    take into account the benefit the respondents received themselves.  They paid
    for legal services.  They received the services.  They suffered no
    deprivation.  Given the trial judges finding that the appellants did not agree
    to share costs, each plaintiff paid no more, and no less, than he or she agreed
    to pay.

[63]

Even if I were to accept that there had been a benefit conferred and a
    corresponding loss, the respondents have not met the third requirement for
    unjust enrichment.  Simply put, it would not be unjust for the appellants to
    retain the benefit given there is nothing in the record to support a conclusion
    that the appellants requested or otherwise indicated that they wanted the
    service.

3.

The cross-appeal  Did the trial judge err in
    holding that the appellants were not bound by contract to contribute to the
    legal costs?

[64]

The respondents submit that the trial judge erred in concluding that the
    appellants had not contractually obligated themselves to contribute to the
    legal costs of the British Columbia action.  This finding was clearly supported
    by the evidence.  I would not interfere.

IV.

DISPOSITION

[65]

For these reasons I would allow the appeal and dismiss the
    cross-appeal.  I would set aside the decision of the Divisional Court and the
    judgment of the deputy judge of the Small Claims Court and dismiss the action.

[66]

The appellants are entitled to their costs of the trial that were fixed
    in the amount of $500, and their costs of the appeal to the Divisional Court
    that I would fix in the amount of $3000, and their costs of this appeal, which
    I would fix at $4000.

RELEASED:

DD                                                  Gloria
    Epstein J.A.

JAN 27 2011                                 I
    agree Doherty J.A.

I
    agree David Watt J.A.





[1]
Section 97, which is briefly referenced in these reasons, addresses the
    jurisdiction of all courts to grant declaratory relief, It contains the
    identical words exclusive of the Small Claims Court that appear in s. 96(3),
    and has undergone similar amendments at the same time as s. 96(3).



[2]
In
Moore v. Canadian Newspapers Co.
(1989), 69 O.R. (2d) 262 (Div. Ct.),
    Rosenberg J. analyzed the jurisdiction of the Small Claims Court to award
    equitable relief and determined that there was none.  However, this case was
    decided before the legislative changes in 1989 and 1994 (discussed below). 
    Also, the remedy at issue in
Moore
was injunctive relief, not a monetary
    payment.


