



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Delorme v. Normand
,









2016 BCCA 28




Date: 20160115

Docket: CA42474

Between:

Donald Edmund
Delorme

Respondent

(Claimant)

And

Linda Joan Normand

Appellant

(Respondent)

Corrected
Judgment: The text on the front cover was corrected on March 5, 2016.




Before:



The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Fenlon




On appeal from: an
order of the Supreme Court of British Columbia, dated
December 18, 2014 (
Delorme v. Normand
, Chilliwack Registry No. E9150)

Oral Reasons for Judgment




Counsel for the Appellant:



R.W. Krentz





Counsel for the Respondent:



F. Nudel





Place and Date of Hearing:



Vancouver, British
  Columbia

January 13 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 15, 2016








Summary:

The appellant appeals the
dismissal of her claim in unjust enrichment against the respondent on the basis
that she was entitled to a proprietary interest in a condominium that the
parties lived in together for many years. She claimed that it had become a
joint family venture when she moved into it and contributed to its renovation
and expenses. Held: Appeal dismissed. There is no presumption of a joint family
venture simply because two people live together. The trial judge properly
considered the evidence and made no error in his findings of fact or
application of the doctrine of unjust enrichment.

Introduction

[1]

FENLON J.A.
: The issue on this appeal is whether the trial judge
erred in finding that the appellant, Ms. Normand, was not entitled to a
proprietary interest in a condominium the parties lived in together for many
years.

At Trial

[2]

As the trial judge found (at para. 18), the relationship between
the parties was a long one spanning 17 years. They began living together in
1993, separating for a time in 2003. During that separation, Mr. Delorme
bought the condominium in issue located on Old Yale Road in Abbotsford. The
couple subsequently reconciled and Ms. Normand moved into the property. They
continued to live there for seven years  until June 2010 when their
relationship ended after Mr. Delorme was removed from the property by
police. Ms. Normand continued to reside there until trial and has only
recently vacated the property.

[3]

The trial judge noted at para. 1 of his reasons that:

As originally cast, the parties
claimed against each other for unjust enrichment with respect to various
properties they respectively owned over the course of their relationship. By
the time of the trial, that was distilled into a claim by Ms. Normand to a
condominium owned by Mr. Delorme on Old Yale Road in Abbotsford.

[4]

The trial judge addressed Ms. Normands claim to a proprietary
interest in the Old Yale Road property on the basis of both constructive trust
and joint family venture as that is described in
Kerr v. Baranow
, 2011
SCC 10
.
[I note parenthetically that the trial judge did not consider
whether a single asset can be subject to a joint family venture: see
Ibbotson
v. Fung,
2013 BCCA 171.]

[5]

The trial judge correctly instructed himself on the elements required to
establish an unjust enrichment claim:

[10]      To succeed in an unjust enrichment claim, the
claimant must show that he has enriched or benefitted the respondent, that she
has suffered a corresponding deprivation, and that there was no juristic reason
for the enrichment or benefit. The recognized categories of juristic reason
disentitling recovery include a contract, disposition of law, donative intent,
and other common law, legal or statutory obligations. If the case does not fall
into one of those recognized categories, the onus lies on the defendant to
establish a reason why the benefit should be retained: see
Kerr v. Baranow
,
2011 SCC 10.

[11]      The conferring of mutual benefits may be a relevant
factor in answering that question. As Cromwell J. stated in
Kerr

[109]    As I noted earlier, my view is that mutual benefit
conferral 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. Otherwise, the mutual
exchange of benefits should be taken into account at the defence and/or remedy
stage. It is important to note that this can, and should, take place whether or
not the defendant has made a formal counterclaim or pleaded set-off.

[6]

The trial judge then considered the circumstances of the parties. He
observed that Ms. Normand acknowledged that she did not have a claim to
the Old Yale Road property at the time of its purchase. Rather, she relied on
the contributions she made over the years by paying expenses and paying for renovations.

[7]

The trial judge concluded at para. 12 that Ms. Normand had not
established that Mr. Delorme was enriched by Ms. Normand paying the
strata fees and other incidental expenses. He found that to be equivalent to
two people sharing rent for an apartment they are living in. Neither is
enriching the other.

[8]

The trial judge found Ms. Normand had established an enrichment of
Mr. Delorme insofar as Ms. Normand had paid for countertops and a
jacuzzi which together cost $1,700. But he found those benefits were offset by
benefits Mr. Delorme had provided to Ms. Normand through painting and
renovation work on other properties she owned.

On Appeal

[9]

On appeal Ms. Normand submits that the trial judge erred in finding
that the benefits bestowed on Mr. Delorme were offset by the benefits he
conferred on her, and further erred in ultimately concluding that the Old Yale
Road property was not a joint family venture.

[10]

In my view Ms. Normand is asking this Court to re-weigh the evidence
that was before the trial judge and to come to a different conclusion. Among
other things, Ms. Normand points to the significance of her monthly
financial contributions after she moved into the property. She paid for most of
the groceries and $150 for utilities in addition to $188 for strata fees each
month while Mr. Delorme paid the mortgage of about $260 per month.

[11]

Ms. Normand emphasizes her agreement to co-sign a loan so that
Mr. Delorme could pay off outstanding mortgage arrears, although she
acknowledges that Mr. Delorme ultimately repaid that loan. She emphasizes
that she paid Mr. Delorme $6,000 from the proceeds of the sale of a mobile
home she owned, so that he could pay some legal fees.

[12]

The trial judge, however, expressly considered these contributions by
Ms. Normand. The reasons for judgment are brief, but there is no
suggestion that the trial judge misapprehended the evidence.

[13]

Implicit in the trial judges finding that the parties were not involved
in a joint family venture is the finding that there was a lack of economic
integration. That conclusion is supported by the evidence and facts found by
the trial judge. For example, although the parties had a joint account, it was
used by Ms. Normand only to deposit Mr. Delormes paycheque to assist
him with handling his money. He would owe her for any overdrawn amount on that
account.

[14]

Further, before the parties separated in 2003, they were living in a
condominium on Clearbrook Road which Mr. Delorme had purchased. In
relation to that property, Ms. Normand had paid for the utilities and
groceries and Mr. Delorme had paid the mortgage. However, when the parties
separated for that brief period in 2003, Ms. Normand bought the Clearbrook
property from Mr. Delorme, paying for the full value of the equity and
assuming the mortgage. In other words, she did not assert that she had acquired
an interest in that property in any way through living in it and sharing
expenses.

[15]

Finally, Ms. Normand owned a mobile home and retained the rental
income from that property and all of the proceeds from its sale other than the
$6,000 earlier alluded to.

[16]

The trial judge considered
Ibbotson v. Fung
, which was relied on
by Ms. Normand, but found the circumstances in that case to be significantly
different from those of the parties in this case.

[17]

The Supreme Court of Canada stated at para. 100 of
Kerr v.
Baranow
:



4.         Whether there was a
joint family venture
is a question of fact
and may be assessed by having
regard to all of the relevant circumstances, including factors relating to (a)
mutual effort, (b) economic integration, (c) actual intent and (d) priority of
the family.

[Emphasis added].

The trial judge made a finding of fact that the Old Yale
Road property was not a joint family venture. That finding is entitled to
deference.

[18]

Ms. Normand and Mr. Delorme had a long relationship. But there is no
presumption of a joint family venture simply because two people live together.
In
Kerr
, Justice Cromwell said at para. 88:

[88]      It is critical to note
that cohabiting couples are not a homogeneous group. It follows that the
analysis must take into account the particular circumstances of each particular
relationship. Furthermore, as previously stated, there can be no presumption of
a joint family venture. The goal is for the law of unjust enrichment to attach
just consequences to the way the parties have lived their lives, not to treat
them as if they ought to have lived some other way or conducted their
relationship on some different basis. A joint family venture can only be
identified by the court when its existence, in fact, is well grounded in the
evidence. The emphasis should be on how the parties actually lived their lives,
not on their
ex post facto
assertions or the courts view of how they
ought to have done so.

Summary

[19]

In summary, I find no error in the trial judges findings of fact or
application of the doctrine of unjust enrichment. I would accordingly dismiss
the appeal with costs to the respondent.

[20]

KIRKPATRICK J.A.
: I agree.

[21]

GROBERMAN J.A.
: I agree.

[22]

KIRKPATRICK J.A.
: The appeal is dismissed.

The Honourable Madam Justice Fenlon


