Supreme Court
Decision Information
Abstract: Plaintiff seeking quantum meruit compensation for services rendered to common-law husband=s business - Plaintiff seeking declaration that she is owner of half the beneficial interest in Hay River property - Plaintiff also claiming compensation purely on ground that her services unjustly enriched defendant - Plaintiff co-habiting with defendant - Plaintiff testifying at discovery that defendant supported household - Plaintiff and Defendant in "stormy" relationship - Court finding that plaintiff asked defendant to work at Defendant's car rental business to get away from solitude of house - Plaintiff alleging in Statement of Claim that she performed "full time work" at business - Court accepting Defendant's evidence that he neither asked nor required Plaintiff to do work - Court finding that Defendant never offered to pay Plaintiff anything for services - Court finding that in order to succeed in quantum meruit action, Plaintiff must establish that services rendered either at request of Defendant, or that having an opportunity to reject such services, Defendant freely accepted them with knowledge that Plaintiff would expect to be paid.
Subjects: Restitution - Quantium meruit recovery
Decision Content
IN THE SUPREME COUPT OF THE NORTHvVEST T.3RR1T0.HIES B E T W E E N : AGATHE KOSTIUK otherwise known as AGATHE BROWN. AND:
JOHN KOSTIUK.
ft
Reasons for Judgment by; The Honourable T-ir. Justice JJ.C Disbery
^ O U l I ,-1 c X y-v jli fj L- L-i i ..'_ I i|fe. R . K . E . t h e u D , J . T i l l c y , t h e REASONS l̂ 'OR JUDGP-IENT OF THE H0l^0tRABLE MR. D.C. DISBKVY
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^ v , _ *—» V I ^s v-»<«<o Plaintiff.
Def t.ndanx.
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ir. t h e f i r s t fr -.r fol lo^- 's : .A.D., f̂ ^̂ ^ m a r r i e d . oer ior .ned t h e s e r v i c e s of a s e r v i c e s m r o t a t i o n t o t h e ^^
- 2 -1 Defendant's business operations, all for and at the request of theDefendant and for the Defen-dant's benefit. 3. In the alternative, the services performed by the Plaintiff were accepted by the Defendant and the Defendant derived benefit therefrom. 4. The Plaintiff states that on a reasonable basis she is entitled to $25,000.00 for per-forming; the said services in relation to the Defendant's business operations, particulars of which services are: a) between approximately April, 1971, to April, 19?^t full time work for "John's Cartage & Rental Service"; b) bookkeeping; for ground handling services that the Defendant provided and continues to provide to Pacific Western Airlines at the Airport in Hay River, c) bookkeeping for snowmobile sales operation run by the Defendant in the Winters of 19?2 and 1973. I all for which no remuneration was received from the Defendant." The statement of defence, after admitting paragraph 1 of the std;ement of claim, first pleads a general denial of all the other allegations contained therein. Paragraph 2 of the said defence further pleads as follows: "2. In reply to the whole of the Statern.ent of Claim, the Defendant states that if the Plaintifx nad per̂ -ormed services m rcj-aorcn »o >̂ic Defendant's business operations or had perto^med the services of a wife, v.'hich is not admitted but denied, then the Plaintiff has performed such services in exchange for the Defendant per--forming the services of a husband and in exchange for the financial support and assistance continually rendered by the Defendant to the Plaintiff.'" Shortly after the trial began learned counsel advised > me that they had agreed to dispose of a further issue involving lots 596,597,598 and 599 in the Town of Hay River, in the Nortliwcst Territories, hereaf ".er referred to as "the lots", ^ ^
- 3 which stand registered in the names of "John Kostiuk, ( Businessman and Aggie Kostiuk, his wife, both of the To- of Hay River in the Northwest Territories, as joint tenants and not as tenants in common." Learned counsel for the defendant defined this issue as follows: " P/lr. Wilson and I have agreed that with respect to this particular piece of property, the issue is whether Mrs. Kostiuk owns a beneficial interest in the property or whether there is a resulting trust in favour of the defendant. Now, I have to confess, that that is not specifically pleaded." Learned counsel for the plaintiff st,ied that he was asking for "a declaration that Mrs. Kostiuk owns half the beneficial interest in that property." Declining to try this issue v/ithout any pleadinfrs but desiring to determine all matters in controversy between the parties and thus avoid further litigation (R. 0. NWT 1974, Ch. J-1 Sec. 18(e))J at my suggestion, a counterclaim and a defence thereto were prepared and filed and the trial proceeded. This further issue will be dealt with later in this judgment. THE RELATIOFJSHIP OF THE PARTIES PRIOR TO 1971. The plaintiff was at all times material to this action a married woman separaxed from her husband, Mervin Brov/n. Two children v/ere born of that marriage; a daughter, Linda, in 1956; and a son, Larry, in 1957• fhe plaintiff left her husband in 1957 or 1958, the plaintiff was unable to recall v/hich ycarj and v/cnt to Hay River v/here she- secu'̂ ed employment in "a restaurant. There she met the defendant, and ^
» 4 -1 in January 1959 they commenced cohabiting as man and wife. The child, Larry Brown, went to live with his grandfather.
The child, Linda Brown, went with the plaintiff to live in the defendant's home.
At the beginning of their relationship the plaintiff and the defendant intended to marry as soon as she v/as able to secure a divorce from Brown. She had no money cf her ov/n and the defendant told her that lie v/ould pay the necessary costs. Under the lav/ as it stood prior to the coming into force on July the 2nd, I968 of the present Divorce Act with its additional grounds for ( ivorce, the plaintiff's chance of securing a divorce herself vhile so living in adultery was I extremely remote. There is nothing in the evidence before me to suggest that her husb< nd had been guilty of any matrimonial misconduct upon v/hich she could have commenced an action for divorce.
Three children v/ere born of this cohabitation, namely: Sheila Lynn, Brenda and John Lee. born respectively in 1959, i960 and 196?.- The plaintiff and the r.hildi-en used the sur-name, Kostiuk. The parties continuel living together for over 15 years until they separated in April, 197^. The defendant supported the family including Linda. The plaintiff testified that over the wliole period their relationship was "stormy"; thafthere were more bad times than good times"; and that there were frequent quarrels. She accused him of drinking too much but admitted that he did most of his drinking av.'ay from home. She testified that at cimes si e threatened to leave him; .m for siinrt per: ods of time; and thr t
there were times when he told her to leave. His evidence was that she complained a great deal and he denied ever attempting to end their relationship because of his concern for the children. With respect to the period up to 1971 the plaintiff gave the following answers upon her discovery: " Q.19 Between '59 and '70 is it fair to say A. No, I did not work. Q,20 And during that period of time would it A. Yes I would say so. Q.35 During that period of time you didn't A. No, I was not.
The si tuation with respect to the ownership of property and income is clearly set forth in the follov/ing answers given upon her discovery which were repeated at the trial:
Q.177 And did he mention to you that he v/asn't A, O..I78 He made that quite clear to you, did he? A. Yes he did. Ci.190 I see, woull it be fair to say that îe
- 5 that you didn't work at an income producing job outside of the home? be fair to say that Mr. Kostiuk provided the shelter, food and the clothing and whatever else v/as needed? expect to receive any sort of weekly or monthly or reg ilar compensation for the duties you vier'2 performing in your role as you thought of it, as wife and mother, were you?
willing to put the house in your name or half in your name? Well, he did not want it in my name, it was his house, i ' took the position throughout your reJ \-tionship th \t he was making the monev in ^
- 6 the financial end of things, he was the boss, and because you were not married he wasn't going to share anything with you? •A. Yes, he felt this way, that ho was tne boss and that he ov/ned the business, he owned the house, Q.I9I He owned the land? A. He owned the land and he felt that since we were not le,9:ally married that it was strictly his own. The parties never had a joint bank account. The parties were clearly incompatible and their relationshir steadily deteriorated.
THE PLAINTIFF'S CLAIM FOR SERVICES RENDERED. I Paragraph 4 (a) of the statement of claim limits the l.:iF plaintiff's claim for services rendered to John's Cartage & Rental Service "to the period from approximately April 1971 to April 1974, hereinafter referred to as "said period". "John's Cartage & Rental Service " was the name and style used by the defendant in carrying on his various business activities in Hay River. By April, 1971• the parties had been living together for over 12 years. It is necessary to summarize the change in the attitude of the parties each to the other and changes that had occurred in their surrounding circumstances as at this date when the plaintiff first claims compensation for her services. It is common ground that their personal relationshi o was stormy and that their rapport had deteriorated to the point that there were more bad times than good times= The children were all attending school and, as the plaintiff said, xhey now required less of her trme and attention. The iefendant no longer ijor;
- 7 intended to marry the plaintiff unless conditions betv/een them improved. She was no longer keen to get a divorce. In March, 1971» the defendant secured the Hertz Rent A Car franchise from that company fĉ r the Hay River airport. The plaintiff asked the defendant to let her work at the counte in the car rental booth at the airport. She testified: "It was a job for me to get back my confidence in myself," The defendant testified that she wanted to become involved because she was bored at home. I find that she asked the defendant to let her work at the counter and that she was motivated to do so by her desire to get away from the solitude of the house into mixing v/ith the public at the airport v/here, in common parlance, the action v/as. The defendant for some years prior to 1971 and during the said period handled baggage and freight carried to and from Hay River by Pacific V/estern Airlines, hereinafter referred tc as "Airlines", Two Airlines planes stopped daily at Hay River. It took approximately 30 minutes to handle the baggage and freight for each such fli^rht. This work v.-as done by the defendant limself aided by one and someti ;es by two of his employees Consequently the defendant was available when flights arrived to go to the Hertz stand when it was necessary to do so. In addition to renting a vehicle to a flight passenger whp desired one, there v/ere persons v/ho arrived in private planes who sometimes rented a vehicle. However, as the plaintiff testified, "The small pj.anes that came in, there wasn't too manv too oftcrj ^
- 8 -'I The Hertz franchise required the defendant to supply the necessary vehicles. In I97I the defendant had and operated
a total of 1 passenger car and 4 half-ton pickup trucks; in 1972 he increased his fleet to 2 cars and 6 pickup trucks; and at the time the parties separated in 197^ he had a total of 30 vehicles, mostly trucks for use in his car and truck rental business. These vehicles were also rented to local residents and businesses and in the case of the pickup trucks such were usually rented by the week and sometimes by the month. The Hertz operation at the airport was not a large one but it fitted into the defendant's general business of renting such vehicles. • The plaintiff alleges in paragraph 4(a) of her statement of claim that during the said three year period she performed "full ti.me work" in the defendant's business operations at his request. I will nov/ deal v/ith these operations seriatim. SERVICES RENDERED WITH RESPECT TO THE HERTZ FRANCHISE. The plaintiff said that her work v/ith respect to this franchise was "an all day job". She testified that she usually went to the airport twice daily except that in the wintertime no planes came in on Sundays. She qualified this by saying: "I went to the airport before the planes come in if there were reservations," There would, of course, be little purpose in her going if there were no reservations to be dealt with. She ti:: said she spent approximately 1 hour on each occasion she vent tes' > to the airport. There she received any vehicle being rctarned by the renter, computed the charge and made out the bill. For an incoming renter she completed the form r-ntal agreement,
- 9 She said that in addition to work at the airport she sometimes drove vehicles that had been reserved from the house t" to the airport. She said that she averaged tv/o hours each day cleaning vehicles at home and while at home she answered telephone calls that came in to reserve ^ vehicle. Under cross-examination she admitted that sometimes after quarrels she would not go to the airport. During one two month period she did not go to the airport because tie defendant told her to stay away. The defendant's evidence was that between April 1971 and October 1973, the most the plaintiff attended at the airport was 2 or 3 times a week; and thereafter until April 1974 she only attended about once a week. Over the entire period the defendant estimated that for the first two years the plaintiff attended at the airport for about 20% of the flight arrivals and for the third year she attended about 10/?- of the flight arrivals. On this basis the plaintiff v/ould have met approximately 342 flights and v/orked 342 hours. On the same basis of calculation there would have been 2.028 flifrht arrivals duninf; thp p;ai(i pp-ri od Find nf 1-hpm thp (i pf enri â nt. n-r nr^e^ nf his baggage employees looked after the Hertz stand when necessary with respect to the other 1,686 fights. There v/as one period of t'.vo ir;jnths v/hen a Joyce Hinson manned the Hertz stand for flight arrivals. She v/as, however, another employee of the defendant v/ho drove a school bus for him and v/ho v/anted to gain some experience in car rental work. After she left.the defendant did not hire anyone to rejlace her at the stand. ^
- 10 -The defendant said that he did not ask the plaintiff to clean cars and said that he himself did most such cleaning; pointing out that in 1971 there -„as only one car to clean „nd only t//o cars in 1972 and, of course, the pickun trucks. He did not dispute that the plaintiff may have cleaned vehicles from time to time. An important question to be determined is: Did thr ic plaintiff, as alleged in paragraph 2 of her claim (sunra), perform these services " at the request of the defendant and for tne defendant's benefit." I have already found thau at the outset it was the plaintiff who asked the defcndrmt ro i-t her work at the axvozzt stand. I accent i"e u • defendant's evidence that Jio )v.-i"i,her ar,kf.'d nor î eqî irr.d iier to do thj.s work but that lie did not object co her mann.in..̂"-- t>!c stand. He said he had not expected her ";o attend the flir-'it arrivals on a regular bLsis and, a,3 lie put it, he left it "uo to her whether she worthed or nut" and ho\' often. I further find that tiiere were no arrangcneirts .niarle for any nayinent for such services as she might perform. She testified that the defendant nt:ver' told her- that he would nay her anything for her services; and when, in 1974, not long before she left him, she su-̂ '̂ Testcd that sl-.c should have ;-:o-,e pay for her services, he replied: "if I l-iave to nay somebody I'll nay somebody else."
1 I'- tK > ^^
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- 11 -The plaintiff testified that she had "v-3ry little involvement" in this operation. She said there was "very littll bookkeeping to be done and he did most of it". She at times assisted him when he prepared the monthly report to Airlines and she testified that she had not expected payment for this. He said the monthly report took about 10 minutes to complete and sometimes she helped with the adding. He said he had never hired anyone to do any bookwork with respect to the Airlines operation. SERVICES RENDERED WITH RESPECT TO SNOWMOBILE SALES. From about October 1972 to February 1973 the defendant handled and sold 28 snov/mobiles on consignment. The plaintiff testified: "I just helped him write up bills of sale or other warranties for it; and, like I said, the phone calls, i and that's all I did for that. During this period she estimated this work took her "probably about an hour a day" to do. She further said she had not expected to be paid in dollars and cents for these services. He won a ticket for a trip to Hawaii as a bonus for selling 28 units. This ticket he gave to her and he bought tickets for her sister and husband to accompany her on the trip. She also said she never asked for pay for these services and filling in a printed warranty card only too': about five minutes. SERVICES WITH RESPECT TO NORTIERN TRANSPORTATION LTD. From April 1971 until October 1973, the defendant contracted to carry employees from worksites to their mess hall for their noon meal by bus. It was a snail operation and (
- 12 other than receiving telephone calls at times there is no evidence that the plaintiff rendered any other services with respect to this operation. The bus was so used for about an hour a day, SERVICES RENDERED WITH RESPECT TO SCHOOL BUS CONTRACT. The defendant also had a contract for the operation of a school bus. There is no evidence before me that the plaintiff rendered any services with respect to this operation other than answering telephone calls relevant thereto, SERVICES RENDERED WITH RESPECT TO THE DEFENDANT'S BUSINESS "OFFICE". The defendant carried on his business operations from his home v/here he kept his business papers ani had a desk. The plaintiff frequently answered business telephone calls. lA She said there were not many calls v/ith respect to the school bus. There v/ere, however, many calls with respect to tne snowmobile operation, with respect to the Hertz franchise and the rental of vehicles to local residents. She also helped with the filing of business papers but, as she put it: "I didn't do too much, about half an hour, maybe an hour a month"-The position taken by the plaintiff at the trial v.-as as follows: " Q, If he hadn't of had you in the operation what v/ould he have needed? A. He would have needed somebody at the airnort to tal:c care o.r. the booth for the rentals for P.Vv.A.. He would have needed somebody to ansv/er the nhone and he probably v/ould have had to have somenody part-time to dc I a lot of the cleanin,̂ :; on the vehicles. " ^
- 1-; -The defendant's position was that he would not have had to have someone at the Hertz stand and such could Iiave ' been handled by himself or an employee at flight time, as was often done. The evidence supports this contention. The defendant, of necessity ,* was av/ay from home at least two hours daily at the airport and another hour driving the Northern Transportation employees. The plaintiff testified that he did "all the mechanic work" on the vehicles and that" he also washed many of them". I accept the plaintiff's contention that had she not done so he v/ould have required someone to answer telephone calls and, as his fleet of vehicles steadily increased to about yj at the time she left, the defendant would have required part-time cleaning help. The defendant benefited from the plaintiff's services. The defendant, however maintains! that the plaintiff rendered her services gratuitously. Having found the facts I nov/ turn to consider the applicable law. By naragraoh 2 of the statemen-̂ . of claim the plaintiff claims for a quantum meruit comnensation for services she rendered to the defendant. l''ron, reading the many authorities cited by learned counsel, for which I am most grateful,it appears that the boundaries of and distinctions between actions for quantum meruit arising out of contract and those arising out of quasi-contract were for many years ill-defined and uncertain, due, perhaps in part, to the fact that in actions for a quantu.Ti meruit upon a quasi-contract the element of unjust enrichment influenced the extension of the ambit wherein the common law i Courts granted relief by quantum meruit actions against such unjust enrichinent. By paragrapii 3 thereof, t.he plaintiff ^
- 1 4 -1 I alternatively claims such compensation purely on the ground that her ser̂ '-ices unjustly enriched the defendant. During the past 25 years, however, snd certainly since Deglman v Guaranty Trust Co, and Constcntineau 1954 S.C.R. 725, I954 3 D.L.R. 785» many of the uncertainties have been swept awa.v and Canadian jurisprudence now recognizes that actions for a quantum meruit on contract is a separate and distinct cause of action from the cause of action for restitution on the basis of unjust enrichment. THE LAW RELEVANT TO THIC PLAINTIFF'S CLAlvl FOR A QUANTUM MERUIT. The present action of quantum .meruit evolved out of the ancient action of assumpsit. "Assumpsit" is defined in ^ Stroud's Judicial Dictionary 4th ed. Vol, 1 p. 213 as: " a "^f voluntary pro.mise made by way of mouth by which a man assume th and taketh upon him to perform or Vjay anything to another." As Barry J. said in William Laccy (Hounslov/) Ltd v Davis 1957 1 W.L.R, 932 at p. 936: "In its early history- it was no doubt a genuine action in contract based upon a real promise to pay, although that promise has not been expressed in words, and the amount of the payment had not been ascreed." Quantum meruit thus had a contractual origin. Deglman (supra) was a case where the plaintiff had rendered services to an aunt on an oral contract tnat such were to be paid for by her making provisions by will in favour ,0cl* of the plaintiff including the devise of a certain house - A property. She died intestate. The Court was unable to enforce ts'"' the oral contract because there was no memorandum in writing ap,aii= ..{ifl as required by the Statute of Frauds. ^
- 15 -Rand J, delivering the judgment of Rinfret C.J., Taschereau J. and himself, :3aid at p. 728: " There remains the question of recovery for the services rendered on the basis of a quantum meruit. On the findings of both courts below the services were not given gratuitously but on the footing of a constractual relation: they were to be paid for. The statute in such a case does not touch the principle of restitution against what would otherwise be an unjust enrichment of the defendant at the expense of the plaintiff. This is exemplified in the simple case of part c' full payment in money as the price under an oral co.ntract; it would be inequitable to allow the promissor to keep both the land and tl e money and the other narty to the bargain is entitled to recover what he has paid. Similarly is it in the case of services given. " Cartwright J, (as he then was), in delivering the judgment of Estey, Locke, Fauteux JJ. and himself, said at p. 734: " I agree wi.th t,ie conclusion of my brother Rand that the respondent is ontitled to recover the value of these services from the resuondent administrator. This ri/'ht appt ars to me to be based, not on ^he contr^.ct, but on an obligation imposed by law. In Fibrosa Spolka Akcyjia v. Fairbairn Lawson Combe Barbour Ltd, (2), Lord Wright said, at page 61: It is clear that any ci/i lized system cf law is bound to provide remed -i es f r r cases of '-ihr.t has been called unjust eri richm(at or unjust benefit, that is to preve nt a nan from retaining the money of or so.me bene fit drrivcd fro.m another which it is ajiain st conscience that h? should keep. Such remedi es in English law are generically different fro m rem.edies in contract or in tort, and are now r ecognized to fall within a third category of th e common lav/ v/hlcn has been called quasi-contrac t or restitution. and at page 62: Lord Mansfield does not say that the law imolle: a promise. The law implies a debt or obligation which is a different thing. In fact, he
- 16 denies that there is a contract; the obligation is as efficacious as if it v/ere upon a contract. The obligation is a creation of the law, just as much as an obligation in tort. The obligation belongs to a third class, distinct fi-om e.iD.ti'r contract or tort though it resembles contrr..ot rather than tort. "
On a quantum meruit the Court av/arded Deglman $3,000,00, The Deglman judgment was referred to by the Supreine Court of Canada in Brownscoiibe v The Public Trustee of Alberta 1969 S.C.R. 658, and Thompson v Guaranty Trust Co. 1974 S.C.R. 1023. In those cases hov/ever, oral contracts respecting land that were unenforcible by reason of Sec, 4 of the Statute of Frauds v/ere rescued from the statute by reason of the fact that part performance of the contracts by the respective » plaintiffs had been proved. See also Anderson v Schultz 1975 62 D.L,R. (3rd) 762; and Racette v Bcarden 1977 5 W.W.R. 762 where unenforcible contracts were before the Courts and qu-^ntum meruit compensation v/as given. The courts have followed the same course where the purported contract was void ab initio. In Craven-Ellis.j!^-anons_i£JjTiiJLO^ 1936 2 K.B. 403; •^2 T.L.R 657: 1936 2 All E.R. IO66, the plaintiff rendered services to the defendant urder an agreement that specifically provided for the remuneration the plaintiff was to receive for his services. The agreement was void ab initio. The » plaintiff's action was to recover the remuneration provided irlajl̂j, ,^^ .j.̂ .the agreem.ent, or, failing that, alternatively, to [n fS"' ... _.,..--, o. . •.. • - "ees on \ quantum meru.it. ^ ^
- 17 -Greer L,J. at p. 40^ said: " As regards the plaintiff's services after the date of the contract, I think the plaintiff is also entitled to succeed. The contract, having been made by directors who had no authority to make it with one of themselves v/ho had notice of their v/ant of authority, v/as not binding on either party. It v/as, ̂ fact, a nullity, and presents no obstacle to the implied promise to pay on a quantum meruit basis which arises from the performance of the services and the implied acceptance of the same by the company. " And at p. 4l2: " In my judgment, the obligation to pay reasonable remuneration for the work done v/hen there is no binding contract betwê -n the parties is imrosed by a rule of law, and not be an inference of fact arising from the acceptance of services or goods. It is one of the cas^s referred to in books on contracts as obligations arising quasi ex contractu, of ',/hich a well known instance is a claim based on money had and received." - and -" I accordingly think that the defendants must pay on the basis of a quantur.i meruit not only for the services rendered after December 31, 1930, and before the date of ft a invalid agreement, but also for the services after that date. See also Hink v Lhenen I975 3 W.W.R. 306. Letiiiied counsel for the defendant cited Hô JL-i—iiiiL-Lt) V Kost 19?2 7 R.F.L. 77. In that case Liie plaintiff brougii i. her action on the ground that her services were referable to a contract that was unenforcible by -eason of the Statute of Frauds and sought compensation by way of quantum meruit. For some years the ulaintiff had performed a variety of services in the operation of a tourist camp by the defendant while she was living with him in a common law relationship. In L dismissing her action Hinkson J. said at p. 81: ' ^ ^ ^
- 18 -" In the present case the plaintiff testified that at the time she was oerfor̂ .Ting the services it never occurred to her that she should be naid for tliose services. The reason she did not, I conclude, was that "iie was performing them ir her role as the wife of the defendant, based upon the personal relationship which then existed between the parties. When her claim was advanced it was put upor the basis of a va.lid but unenforceable contract. It is said that she contr.i-buted to building up and developing the pron.'-rty in the belief that she had an equal interf;;t in it with the respondent, and that to permit lier claim to be de:feated would amount to unjust enrichment in favour of the defendant. As I have concluded that the defendant made no such cr-;)-mise to the plaintiff and that the services f;he rendered wore not performed upon the basis she now alleges, the claim, in my view, cannot be supported. The learned judge found that the plaintiff had rendered her services "in her role as wife". 1 must corifos--; I that I am. unable to place cleaning tourist ;abins, supervising a trailer canip, operating the camp stox̂ e and rendering other
services incidental to the ciefendar:t's tourist business as matters falling within the r;cope of a wife's duties whether she be a v/ife both v/eaded a:;d bedded or only bedded. These are business activities as distinguished from housekeeping n-ri pc; . From a careful consideration of the above judgments, in my opinion, in order to succeed in an action for quantum meruit arising out of contract (as distinguished trom an action arising out of quasi-contracxj, the plaintiff must establish that the services v-re rendered either at the re-I quest, express or tacit, of the defendant ther-vtor; or that having an opportunity to reject such services, the defendant freely accepted them with actual or ])reEumef' knowledge that ^ ^
- 19 in the particular circumstencos the plaintiff was rendering such services in the expectation that he would be paid for them. "If services have been rendered gratuitously, no quantum meruit claim will lie." Go:^ & Jones "The Law of Restitution" pp 29-30, 269-271. I think the plaintiff was mistaken when she testified that the defendant asked her to mann the Hertz counter. From a consideration of all the evidence I have already found that no such request v/as made. The plaintiff has therefore failed to esi:ablish any claim for a quantum meruit arising J out of contract. THE LAW RELEVANT TO THE PLAINTIFF'S CLAIM ARISING OUT OF QUASI-CONTRACT.
Fcr over two centuries commiOn law Courts have used the remedy of quantum meruit in many diverse situations outside the realm of contract to compel a defendant to make restitution of or for a benefit he has received from the plaintiff v/J-iioh he should not, in the circumstances, be allcv-̂ d to retain. ineae bi cuci Liuj.t; j'lave become knovv'n as cjuasicontracts because they deal with the relationship between two particular persons. In Chitty on Contracts 22nd ed. at p, 657 the difference between contract and quasi-contract is dealt with. The learned author savs: ! The underlying aim of the precedents secris to be compulsion upon the defendant to make 'resti-tution of a benefit which he ought not iri .justice j to retain at the expense of the olaintifi.' A I quasi-contractual si tuation resembles a contrac- ^ tual^one in thL:v. liability .is imr.osed upon a particular person to pay money to another ^
- 20 particular person, yet it differs ra_d_i_ĉaj_ly_ ;hi » that quan i -con.tractu_c.' 1 11 n eiH ty i s iiniiOSM--G _pv_ the law irresnoctive oi' the agrecMonb oj' tJie parties.
A consideration of the following judgments satisfies mo as to the correctness of the learned autlior's statement. I Tl F i br osa Spolka Akcy.ina v Fairbain Nav/son Coi-i be Barbour Ltd. (H.L.) 1943 A.C, 32; 1942 2 All E.R, 568, a Polish company had contracted in July, 1939 to buy machinery from the defendant and had paid t'l.OOO in advance on account of the purchase price, -.'ar broke out between Germany and Poland cz September 1st, 1939i and between Great Britain and Germany on September 3rd. The German occupatio!i of Poland frustrated th J carrvinn out of the contract and the i-lain.tif f, I havin.-: received no consideration for its 11,000 brought, a quantum meruit action based on auasi-contractual liability
arising from these circumstances. Viscount Simon L,C. said at p. 41: " The claim of a I'arty, who has nri id i.'ioney under a contract, to get the money back, on the ground tliat the consideration f̂ r v.hicli IHJ IICLLU .it lias totally failed is not based on any provision contained in the cor:i.i'act, bu b ar'isos oecau.se, in the circumstances t.nat iza-^'c haneorod, tne l.aw gives a rcmcmdv in quasi-contract to the nerty v/ho has not zot that for v/hich he bargained. It is a claim to recover xoney to which the dc-fond.ar.t h.as no j'urther ri glit because in the circumstances that have happered the money must be re^^ardod as received to the plaintiff's use ." And Lord V.'right said at p. 63: '• Tiie gist of the action is & debt or oeli,":ation implica, or, m.ore accurately l.izoozzz by lav in much the same way as the la.v enforces as a debt the obj iv'ra lier, to pay a statutory or cuslon.ary impost."
And a t p , 6 5 : ,. ,, , ., " The cl:-. im for rcpavn.ent is not c-ar-ed on the •lUich is dissolvnr on th ? f .rus in'-ar̂ or., ^ ^ ^
- 21 but on the fact that tlie defendant has received the money and has on the events which have super-vened, no right to keep it,"
Sec also the further excerpts from Lord Wright's judgment v/hich are quoted in the Deglman case (suprej). Tlie plaintiff's appeal v/as allov/ed. ^ The most recent judgment on a quantum meruit clai.m given by the Supreme Court of Canada that I have been able to find is Attorney-General for British Columbia v Parlrlanc Private Hospital Ltd. and the Corporation of the City of Vancouver 1975 2 S.C.R. 47. The facts in this case were that the plaintiff hospital by an agreement with the City provided care and accomodation for social welfare patients for .>8.05 per jiatient per day. The hospital terminated the agrc-..-.v:(;nt by letter advising that as of March 1st, I968, the.ir ch;r'v-e for such patients would be raised to the minir'.M rate the hospital charged its other naticnts. The hospital also advised the City that if the City was not prepared to nay such increased rate its social welfare patients should be removed from the hospital before sai.d date. The Cit̂ '- did not reply oo i/iie j-et-ter, .-iid net remove the naticn'ts, continued to pav less than the hospital's minimum rate and continued sc-nding social welfare patients to the hospital for care and accomo-dation. This action was commenced by the hosjiital to recover the difference between its minimum rate and the lesser amrur-t paid by the defendant City. Tlie judgment of the Court wJs delivered by Dickson J, who said at np. 53-54: The right of t/ic hosrni.tal to recover, in that case (i:iiilg.Jieqr::(̂ __h2i:hwev hosni+al limit'-d v ^ ^
- 22 -''C>. i | TlliLj^i^rpo ra t_iqn_q £ ythe__Pĵ s t̂xî ^^ .Surrey 1971 S.C.R. v i j " and' in t h i s , i s indepenoont of the o r i g i n a l c o n t r a c t between the p a r t i e s . " - and -^'^' Tilt " Parklane has a quantum meruit action unon a quasi-contract in respect of which there has been no agrecfnent as to remuneration. In these circumstances the City must pay reasonable rates and the City concedes that tlie rates claimed by Parklane are reasonable. Parklane is entitled to recover ." See also Chitty on Contracts, General Principles, 23rd ed. 1770. Learned counsel have cited several cases wnerein the plaintiffs, v/ho have performed the role of common law v/ives and thus retained their freedom to terminate their' "m.arriage" » by simply separating v/ithout the necessity of obtaining a divorce from the Court v/ith its consequential delays, inconvenience and ex'iiense; souglit quantum meruit co.mnensation for services rendered. As the present pleadings so elegantly nut it, "the plaintiff performed the services of a wife "; and the defendant alleges that if she do so, which he ungallantly denies, he "perfor.m the services of a husband in exchange." Learned counsel for' Llie uerendatil tjileJ Swan v Publ iC Trustee of Alberta 1972 3 W.W.R, 696. In this case the plaintiff brought her action for specific performance of an oral contract with the deceased whereby in consideration for house-sser̂''''' kecpin'^ services the deceased had promised to leave his estate ourt* -to her; and, alternatively for a quantu.ii meruix unon a ouasi-B contract. The olaintiff had lived v/ith the deceased in a , .,̂,t common law relationship for 38 years and nooled her old ago 0-'- pensjr)n moneys '.'ith the deceased to buy thoir food and house-; a c D 0 n al d J . f o u. n d tha I i: he " e >: I s 10110 f '' of ^^ ^ ^ ^
- 23 the contract could not be proved because there v/as no memorandum to satisfy the Statute of Frauds and no corroborative evidence of the deceaseri's promise as required by the Alberta Evidence Act, MacDonald J. ruled that "In the absence of a contract, the plaintiff «fnust rely solely on the relationship between herself and the deceased to establish a presumption that she was to be paid," The learned judge found that "the plaintiff and the deceased lived together illicitly" and" that no implication of lav/ in favour of the plaintiff can be found on the fact of cohabitation or ncrformance of household services." With great respect to the r learned judge, in actions for quantum meruit upon a quasi I!) contract, in my opinion a plaintiff's sxyle of living and v/ho
she chooses to sleep v/ith at njght is in no v/ay relevant to the issue of v;hcther or not she should be compensated for services rendered to a defendant other than sexual. I tlicrefore decline to follov/ the reasoning in the Swan case. While the common law gave no rights vis-a-vis to the partners of a common law union so that following a senaration they were each left with only their memories and no rights against each other; statute law has increasingly given recognition to such unions. All the provinces except Prince Edward Island, Quebec, Saskatchewan and Alberta now have legislation giving to certain common law "spouses" the right to anply for m,? intcnance orders. The Dependants Relief Ordinance, being R.O. 1974, Ch. D--4 Sec. 2 (c) (iv and ,v) enacts as followsi
- 24 -» " 2 , In this Ordinance (c) "dependant" means (iv) a woman who cohabited with the deceased for one year immediately preceding his death and was dependent U;.on him for her mainten^^nce and support, (v) a woman who at the time of the death of the deceased v/as cohabiting with him and by vho.m the deceased h.ad one or more children, "
In several of the cases referred to above the successful plaintiff before the Court had been a common law wife. Learned counsel for the plaintiff also relied on Re ^ars (1974) 40 D.L.R. (3rd) 284. In that case the annlicant honestly but erroneously believing she had been divorced from her first husband, Trask, "married" ^ars, who had died intestate. During their life together" she carried out her I household duties and also assisted Spears in his contracting business. She now claimed "not on contract but by way of quantum meruit for personal services rendered v/her-e in fact no contract existed." Anderson, Co. Ct. J. said at p. 29I: " It seems to mc that the principles of equ.ity apply and it is a fundamental nrincinle of eouit,y that no one shall be allowed to enrich hi,',:.-:elf unjustly ax xhe exnense 01 another, by reason of an innocent mistake of law or fact entertained by both parties. It is my view that in lignt of the authorities cited and the lav/ as enunciai.ed in the texts, that the services of Dorothy Spears as a housel:eener v/ere done gratuitously v/ithout thought of remuneration other- thnn xhe normial benefits which she './ould deri."'C fror. t'"e married status. However, she performed doxies which were over and above 'the duties and sorvlcos v/hich are nornial and ordinary for a v/ifo to T:>or-form, and she should receive con.nen.s,'̂ tion, restitution for her servicn,.'s as the administratorbodkkeener of her husband's contracting bi:-̂ in"Ŝ . I would allov/ recovery in quantum mcn.it .at 0 rale of >ii50 per week, for a 32~week period n-r year for i4 years, " ^ ^ ^
- 25 -Barry J . said in V/illiam (Hounslov/) Ltd, v Davis Supra) a t p . 936: " In these quasi-contractual cases the Court will look at the true facts and ascertain from cjiem wliether or not a promise to pay should be imnlied, irrespective of the actual vicv/s or intentions of the parties a't the tiiue wlien the work was dujie or the services rendcre^J, " The essential elements of a quantum meruit action upon a quasi-contract and the principles applicable ther-eto are disclosed in the cases already referred to and it would serve no useful purpose to consider additional cases. One remembers v/ise v/ords of Lord Finlay who said in Craig v Gla_sgov/ Corporation i919 S.C. (li.L.) : " it seems to me that no inqvriry is more idle that one v-hich is devoted to seeing hov/ nearly the facts of t-.vo cases come together. The use of cases is for the pronositions of law they contain; and it is no use to comnare the special facts of one case v/ith the snecial facts of another for the purpose of cndeavour^ing to ascertain v/hat conclusion you ou.":hL to ar-rlve at in the second ca,:i!0. Authorities -v'/hich are so used would very much encumber the administration of justice. " These princinlos and essential elements applicable X C 3.1̂1 cl C X 1 C r̂i 3 U C JI cl O U i 1 C C 71 C cl X J-- d iT ZJ-T" Although technically known as an action for quantum meruit on a quasi-contract, the action really is a restitutionary one, designed to prevent a person from retaining a benefit he has derived from another, which, in the events which have supervened, it would be against good conscience and justice for him to retain on the ground that by such retention he would be unjust.ly enriched at the expense'of that person. This cause of action is senar-ate and disiincx ( from causes of-action in either contract or tort. As Lord ^ ^
- 26 Dunedin said in Sinclair v Brougham et al. 1914 A.C. 398 at p. 43I: all ideas of natural justice are against allowing A, to keep the property of B, which has somehow got into A.'s possession v/ithout any intention on the part of B. to make a • «te i,. gift to A."
The tool used to bring about the desired restitution is the creation by the law itself of an obligation which it imposes upon the unjustly enriched person to restore the benefit to the person deprived thereof, or, failing such restitution, to pay compensation therefor. The matter for me to decide is v/hether the event that supervened after the services had been rendered, namely; the termination of t'neir relationship and separation, resulted i in the defendant being unjustly eni'icned by retaining the benefits that he received from the plaintiff's services during
the said period. Whether she expected to be paid for her services rendered v/hile they were still cohabiting, is not relevant in deciding whether the subsequent separation resulted in le-3ving the defendant 'unjusx-uy cnriciiCvj. uy obc sai>̂ services, In the very helpful judgment delivered by Lieberman J.A, In Ruff V Strobel 1978 3 W.W.R. 589, the Court at p. 593 adopted the following excerpt taken from p. 14 of tne La-,7 of conscif^=' Restitution, (supra): " The principle of u.njust enrichment is caprfole I of elaboration. .It presumes three things: first, loefij', that the defenoant has been enriched by Diz receipt of a benefit; secondly, tliat iie has i-een so enriched at -.fno plaintiff's oYzzcnze: and thir-dly, tnat it -.'ould be -unjust tc allcw jnig, •to retain the uenefit. ^
- 27 -Applying the law to the facts of the present case I find that the defendant was enriched by the plaintiff's services rendered in connection with his business operations. The nature of such operations, of necessity, required him to have what may be termed "office space" and particularly te.ie-phone service available for potential custo.mcrs. Such space he maintained in his home and through the entire three year period it was the plaintiff v/ho took the telephone calls, dealt with customers in the defendant's absence and performed the other services heretofore enumerated. By her so doing the defendant was saved from paying to have such services performed by other persons, particularly with resi^ect to maintaining office and telephone service. The extent of her services is indicated by her uncontradicted evidence that he did not go to Hawaii v/ith her because they could not both be away from the business at the same time. The defendant v/as thus enriched by the reasonable value of her services and benefited thereby. When separation supervened a different situation v/as created. The plai.ntiff no longer enjoyed the material benefits including maintenance that she had been receiving during cohabixai..ion. The defendant retained the accumulated benefits of the services she had rendered in his business activixies during the said period. I find that it would oe unjust and against good conscierice to allow the defendant to rĉ .ain these benefits for hi.m.self and he must therefore pay a reasonable remuneration to the plr;intiff for such services, ; THE M̂ 'ASURK Or C0:.:TEN3.ATI ON . ^ ^
- 28 -The measure of compensation is clearly defined by Rand J. in the Deglman case, (Supra), at n. 728 where he said " the respondent is entitled to recover for his services and outlays v/hat the deceased would have had to pay for them on a purely business basis to any other pcr-son in the position nf the respondent. " This, of course, is the measure I shall apply. As was to tie expected in the circumstances no record was ever kept of the said services. The evidence given by the plaintiff of their business value v/as of a rather general nature. By her statement of claim the plaintiff asks for $25,000.00 for h«-r "services in relation to the defendant's business operations." This would be :i.l60. a v/eck for the three year period. The amount is an exaggerated one and I quite unrealistic. At the trial she testified that her v/ork in connection v/ith tiie liertz franchise was "a full time job" and that reasonable re.mumera'tion would be 0̂ 400. "ccr month for- the six summer months and $250. per month for tlie remaining months. This 'would aiiiount to $11»700, fo,r tlie thiue yeaiii. She tlien took the "office approach" and testified that a secretary's salar̂ v would range from $300 to $400 a month. At $350. a month the remuneration for the throe years would amount to $12,600, Learned counsel advised ."le thai the m.inimum v/age '-vas I $2,50 per hour and the plaintiff testified tliat Lhis would be the least she should receive. Calculared for a MO hour wee;-, the minimum wage would be .jilQO.OO a week or $15,600. for the said jjoricxi ^ ^
- 29 The defendant said that for a short period he paid a Joyce Hinson $5«00 an hour for time spent at the Hertz ^ counter, I do not accept the plai.ntiff's evidence that sbe worked "full time" in the said businesses during the said period. Considering all the evidence -.vith care I fix the sum of $7,500,00 as reasonable remuneration for all services rendered to the defendant during the said period in his business operations and as the amount by which he stands unjustly enrviclied at the plaintiff's expense. The plaintiff also claims remuneration for "tne serh vices of a v/ife" rendered during the said period as distinct from her" services rendered in "the defendant's business oper-
ations". The plaintiff did nerfc-rm t>:c ordinary housf''; oening | duties that a wife would be cxnectcd to carry out in the ho.mo. She did so for the benefit net only of the defendant but also for the benefi"*" of the four childro^n and herself. She did so v/hen she v/as representing herself to be the defendant's v/ife ana was using his name: ana sne w; s in rc^ceint of tne s,ime benefits and consioerat ions from the defendant as if she naci really been, his vn.fe. 1 find that there is no evidence before me from vZnic.h it car: be found that the do.-.̂ ostic services rendered to the family by the Plaintiff unjustly enriched the defendant. T]?Iz.^zzi'T"-Ilzly.lzi' ' The defendant counterclaim:-, for, inter al.i-i, a doclf-r- i ati.on that the plaintiff has no legal or beneficial interest in tl.c her-inofter dcscribco rf:al j ̂ cnorty and also to ^ ^
- 30 recover certain rents that the plaintiff has collected and retained. The plaintiff's defence to the counterclaim is first a general denial, and secondly that the defendant " had transferred one half of the legal and beneficial interest in the property by way of gift " to her. The following is the legal description of the said property, namely: " The whole of Lots Five Hundred and Ninety-six (596), Five Hundred and Ninety-seven (597)» Five Hundred and Ninety-eight (598), and Five Hundred and Ninety-nine (599), in the Tov/n of Hay River, in the Northwest Territories, according to a plan of survey of part of said Tc'/n filed in the Land Titles Office for the Worth-west Territories Land Registration District under number 365., Reserving unto the Commissioner of the Northwest Territories the roser-va-1- tions and excepx.icns contained in the Con.missi-sioner's Land Regulaxions. " This parcel of land is hereafter referred to as "said lots". The certificate of title No, 6203, issued on January lOti, 1972, to "John Kostiuk, businessman, and Aggie Kostiuk, his wife, both of the Town of Hay River in the Northwest Territories, as joint tenants and not as tenants ir common," In anticipation of securirg the Hertz Rent A Car franchise the defendant on February 18th, 1970, made a written application to the Town of Hay River, hereinafter referred to as "the Town", to purchase three of the said lots and agreeing in the event of their sale to him to "construct office and storage and repair garage for Hertz Truck and Car Rental Service" valued at not less than $20,000.00 within 24 moriths ci-9 of the effective date of the lease or agreement of sale". Until such construction had been completed the Tov.-n continued to hold Title." Or July 21, 1970 he appl Led to purchase the
- 31 fourth lot for the same purpose. The defendant himself prepared the two applications. On September 14, 1970, the defendant paid the To//n $2,530.00 on account of the purchase price of the four lots, which price had not been settled at that date. By letter dated March kt\, 1971, the Town advised the defendant that the purchase price was $5i400.00. The final paragraph of the letter is as follows: In October, 1970, you paid the sum of $2,630.00 towards the price of these lots: therefore the balance owing is $2,770.00 and on receipt of your cheque in this amount v/o will proceed to have title transferred to you." The defendant paid the balance on October 4;;h, 19'''1. The ^:n plaintiff admitted that she took no cart in the purchar-ing of the lots and she paid nothing tov/ards their purchase price.
The building was completed in March 1972 at a cost of $35*000.00. As the construction proceeded the doferiCiant secured the necessary funds from time to time from the Ro.yal Bank of Canada who had arrangements v/ith the federal Industrial Development Bank of Ottawa. The plaintiff had notliing whatsoxaming ,S'uch inorieys, anu
financing. On October 27th, 197^, tht defendant leased the r̂ roperty to Simpsons-Sears Ltd.. The olaintiff admitted she tool-: no part in either the leasing or settling the tcrmS thereof.
I
At soiae time between October l4th, 1971. when the defendant completed payment and January 10th, 1972, when it was r-î gistered, the Town complfted a transfer of tne salt; loti: ^ ^
j I i
- 32 to the plaintiff and the defendant as joint tenants. Neither the transfer nor the duplicate certificate of title were ever given to the defendant; and I infer that such was forv/arded either to the Royal Bank of Canada or the Industrial Bank. 1 adii;? The defendant at all times had the Tov/n's said letter advising him that upon completion of the payment of the purchase price the title would be transferred to hjzrn and he had his cancelled cheque to prove payment. The financing of the construction of the building having been completed, the Industrial Development Bank prepared the necessary .̂ iiortgage to secure the repayment of its $35*000.00 loan by the registered owners "John Kostiuk and Aggie Kostiuk, his wife." The mortgage was sent to Hay River^ i for execution and it was then that the defendant became first aware that the plaintiff was included as a n'ortagor and that she was on the title as a joint tenant. The defendant further testified that ho had never instructed the Tov/n to include the plaintiff in the transfer and that he had never given or intended to give the plaintiff any interest in the lots or had told her that he had. He further testified that he could offer no explanation as to why the Town so included tlie plaintiff without his authorization and that the then Town secretary-treasurer was not available as a witness because she had left Hay River. The defendant said he was not much concerned because the plaintiff's legal name was "Brown" and I she was not "nis wife": and he thought "joint tenants" ',vas 'nwy something applicable to the ownership of Property by J awful husbonis and wives. The defendant had no independent legal „j..-:_- ;„ '-••'-•.'. -.•.'ith any of these matters. ^
- 33 -The defendant asked the plaintiff to go with him to sign the mortgage. He did not discuss v/ith her how her name ( came to be on the title. The plaintiff went v/ith him and signed the mortgage because, as she said, he asked her to do so. She has neither been asked to pa^ nor paid anything to the mortgagee. The plaintiff's evidence was as follows. She said the defendant had talked about buying the said lots for some time, and on the day he did so he told her that he had bought them in their joint names. She was unable to remember any other dsaissions v/i.th the defendant at any time as to 'the ownership of the lots. The plaintiff offered no reason as to v/hy M 'I '. the defendant suddenly gave her the gift of joint ownership
in the lots. Following the separation in April, 1974 the plaintiff v/orked in hospitals in Hay River and l̂ eace River. There is no evidence that she made any attempt to receive anythin,-̂ ' from the Siiupson-Sears rentals. Since l''cbruar7/, -L975i tiie plain'ciii has oecn in receipt of soci.al assistance of various KITKIS. She commenced this action on i,.arch 17th, 1975. but it was not until April, 1976, that she instructed her solicitors to secure a half share of the rent. During the period when the lots wore being acquired in 1971 and I97,? the personal relationship between th.; 'nlain-tiff and the defendant was "s'tormy" a.-id they were liaving T.or'-' bad times than good times together. IL seems most untimely to me tliat in "such circumstances the ('efend;:nt zz^)^z i-ako ^ ^
- 3̂ a substantial gift to the plaintiff. For the above reasons and from a consideration of all the evidence I do not accept the plaintiff's evidencthat the defendant told her 'that he had bought the said lots in their joint names. I further find that the defendant never intended to give the plaintiff any interest in the s.aid lots and never intended tliat her name should appear on the title, I find the plaintiff became such registerd owner purely as a result of an error on the part of the person who prepared the ti^ansfer that tne Town executed. The mortgage was executed by the riiortgagors on August 8' h, 1973. iĤ _l:AVL.REL [̂ YÂ :I„T 0 JTHE _D EF END I The defendant asks, int;or alia, for a declaration that the plaintiff has "no legal or beneficial interest" in
the said lots; and submits that in Ine circumstances a resulting trust exists in his favour. It must bo stated at the outset that as the com;:ion l a v / o - ^ y o o n o r i g h t s t o ? c o m m o n l a w " w i f p " Pn r i 1 o^ri r<ril 1 ••,; r > o n -r-,iĤ v̂r, i-.̂v̂ ̂-r̂ V.rv Q rn-i ot-*"""ps onJ\' such rlghts as she nov ha.s or may receive in the future .nust, of necessity, come by way of legislation. It is for Parliament and the Legislature:- in the liglit of prevailing social conditions to enact such .taws, whereupon it is and will be the duty of the Courts to enforce them. For example» in the case of married persons when a husband purchases property or n;akes a.n invest:.-,e.-rt in the rw name of his wife, a gi.rt to her is oresumed in the absr-n-.e of ^ ^ ^^ ^^ ^^^^
- 35 evidence of an intention to the contrary, Scheurman v Scheurman (I916) 52 S.C.R. 62 5; Jackman v Jackman 1959 S.C.R. 702 at pp. 708 and 712. However what is sauce for the goose is most certainly not sauce for the gander, for when a wife purchases property or mak«s an investment in the name of her husband or even in their joint names there is zo presu.iiption of a gift thereof from her to her husband. Rei Curtis; Hawes v Curtis (I885) 52 L.T. 244; In re Estate of Hannah l-lailman 1941 S.C.R, 368; and Eversley on Domestic Relations 6th ed, p. I96. These presumptions do not apply to com.mon lav/ spouses and, in the present ease the plaintiff and the defendant must in law be treated as strangers. Equit;v' also developed its ov/n principles and remedl;i3 to force an unjustly enriched person to restore to the T)er'*on standing unjustly deprived thereof, the property the former unjustly retains. One of the tools Equity employs to bring about the restoration of the property is the resultin,--̂ trust. Lord Chief Baron Eyre in Dyer vs Dyer (I788) 2 Cox, Eq. Cas. 92; 30 E.R, 42 stated the equitable rule as follows at p. 43: " 'y 1- - .-•'^ - ~. •• V- ^ r ' 1 n -^ - -^ • •. "1 .11 - - - . . . • • t J single exception, is, that tne xrust of a l.-.-'-al estate, v/hetlier- freehold, copyhold, or J.eas-:?hold; whether taken in the names of the aurchase--;.; or\c others jointly, or in the na.mes of others witnc-'t that of the purchaser; whether in one name or several; wliether joinxly or successive, results to the man who advances the purchase-money. This statement has been approved and adopted for nearly two centuries. I I
IJI ii?^t§r:il_ii£^l_.oilJlni^ t!L_i^. i l Iliad ^ (1974) tlie learned au t / i o r s t a ' ccs a t p . 277: ^
- 36 i " Broadly speaking, a resulting trust arises whenever legal or equitable title to property is in one party's name, but that party, because he is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner, or to the person who did ...ive value for it. " The rule .may be rebutted by c ircu.mstancec disclosed in the evidence, V.'hile the Dyer case v/as concerned v/ith land the principle is of general application and extends to personalty. Hudson's Bay Co, v Hosie 1926 2 W.W.R. 730, I926 4 D.L.R, 489. In the case at Bar it v/as the defendar.t who purchased the lots, paid all the purchase price and all mortgage payiMcn.ts The plaintiff has not paid anything. She has made no investment whatsoever. The intention of the defendant is to be determined as at the time he purchased the lots. I find he I intended 'lO buy them for liimself and had no intention of giving any interest therein to the plaintiff. She beca.me the
registers' ov/ner of an estate in fee simple in the lots as a joint tenant with the defendant solely be'cause some person unknown erroneously named her as a transferee in the transfer the Tov/n exeouto'-^ - The dpfenriant had no knov/ledge of thi'̂ " Mvn + ii in>-irr ':i-r+r.-v̂ Titlo 1''0 , 6?0"̂ 1 ssu0d f<.''llowir:g th.e rog'S'tra-tion of the transfer. The plaintiff has pleaded that the defendant had transferred a one half interest in the lots to her "by way of gift," She has the onus upon her to prove her allegation earl!-'*'' and she has failed to discharge it. ^ P Learned counsel for the plaintiff cited Ŝ niythjy ti,el::'' McLeod (1972) 9 R.F.L. 39. There the learned Judge ^ ^ ^ ^
- 37 that the property was in the joint names of Smith, who had been the common law wife of McLeod, and McLeod, He also \ found that when the property was purchased McLeod had instructed that the offer to purchase be drawn up in both their names; and that McLeod intended to thereby make a gift to Smith who had been cohabiting with him for 24 years. The learned Judge did not accept McLeod's evidence to the contrary. The case is therefore quite distinguishable fromi the case at Bar. Learned counsel then submitted that the plaintiff had contributed to th" purchase of the said lots by entering into the mortgage and becoming liable ther^eunder to the mortgagee. In support of this submissior: he relied on Ruff_ vs Strobel, (surra) where the Court held, in the circum- i stances of that case, that entering into the moi^tgage constituted "a contribution to the purch-ase of the property in issae." Briefly summarized, the facts in that case were that the Plaintiff was cohabiting in a common law relationship with th*̂-defendant. They mutuai.ly agreed to jointly purchase a condom-inium. They both signed "the agreement for sale and purchase, the application for mortgage loan approval and finally the mortgage itself." Title issued to them as joint tenants. The defi-nfant paid nothing towâ d̂s the purchase price or subsequently to the mortgagee. The plaintiff had mad-? all such payments. As Lieberman J.A. said at p. 60': ] Thus my view that this is not a case for th'. A imposition of a constructive c r a resultin'' I trus't is fi;rther eriforced by ny finding tnr-ri " the anpellatvC made a co;. tr Ibu': i on t_o_tnfi_pni ~ chase of the .cone n-r it2ii.u-i v/hJcV was re^ i,.; Tone u in the joirrt names of irLi,i;o.i f red the re'-,uor-dent.'- (The italics are mioe,) ^ ^^
- 38 -In the present case the circumstances are entirely different. The defendant alone applied to purchase the vacant lots in 1970, He completed payment of the purchase price on October 4th 1971. The Town having been paid in full, trans-ferred, albeit erroneously, the said lots to the defendant before January 10th, 1972, when title issued. Thus the purchase had been completed, the defendant owned the vacant lots and the plaintiff had not contributed to their purchase in any way. The defendant arranged with the Royal Bank to finance the construction of a building on the lots and as the construction proceeded the Bank from time to 'time advanced the necessary funds. The completed building cost $35,000.00 and it was to secure the repayment of this building loan that the mor-tgage ^m in favour of tlie Industrial Devei.opraent Bank was signed. This building loan had nothing to do v/ith the purch.̂ .se of the property in 1970 ani by signing as a mortgagor on August 8th, 1973 the plaintiff did not miai<:c any contribution to the purchase of the lots. ] therefore find that ther-e is a resulting trust of the interrst in the said lots of the plaintiff as such is described in the presently existing certificate of title No. 6203 in favour of the defcnda.et and that the plaintiff holds such interest as a resulting trustee thereof for the use and benefit of the defendant. I also find in the evidence the creation of a conotrucfcr I/' B five trust with respect to the said interest standing in the name of the plaintiff and that the plaintiff holds said i Ue-'ent as a constructive trustee for the use and Icnefit of tne oofe;i • ^
- 39 -dant. With respect to constructive trusts see the dissenting judgment of Laskin CJ.C. in Murdoch v Murdoch 1975 1 S.C.R. i 423 at p, 439; and the judgment delivered by Dickson J, in Rathwell v Rathwell 1978 2 W,W.R. 101. RENTS.
In 1972 Simpsons-Sears Ltd. leased the building frcn the defendant. On April 1st, 1976,the plaintiff instructed her solicitors to collect half of the rentals from the tenant. The tenant notified the defendant of the demand therefor that it had received. The defendant did not au.thor-ize payment of half the rent to the plaintiff but the tenant, no doubt he ving regard i;o the title, co.mplicd -with the dempnid. Learned counsel for the defendant suggested the amount she I ' ,• ; received to be $1609,07, Under cross-examination the plaintiff said she -//as unable to say if such v/as the exact figui'e. i She testified tiiat the rent v/as $275.00 a month and she received $137.50 a month for part of 1976 and for all of ]977r less so.nie deductions that the tenant v/as entitled to make with respect to utili'ties. The cou.nterclaim asks, inter alia. for an order that the plaintiff account to the defendant for all rents collected by her. I v/ould suggest that the exponsq of taking an account could well be avoided by a simple enquiry from the tenant as to what amounts it paid to the plaintiff for rent in those t'wo years. Counsel coulc then simply ?.\zr. and file an admission as to the amount. The defendant is entitled to judgment for the correct a.nount against the plaintiff. INTlREST y Finally learned counsel for the plaintiff asks thab
- 40 interest be given the plaintiff on the remuneration av/arded # '̂11 pursuant to the provisions of the Judicature Ordinance R.O. 1974 Ch. J-1 Sec, 20. I do not think that it can be said of this case, as the section requires, "that payment of a just debt has been improperly withheld" and accordingly I decline to allov/ interest, I v/ould be remiss indeed if I failed to express n.y thanks to counsel for their careful and exhaustive search into the authorities and for their submissions all of which proved most helpful to m.e, THERE WILL THEREFORE BE JUDGMENT AS FOLLOWS: (1) There -will be judgment for tht? Plaintiff, Agathe :l Kostiuk, otherwise knov/n as Agathe Brown against the; defendant John Kostiuk, for Seven Thousand Five Hundred Dollars ($7,500,00). (2) The plaintiff by counterclaim (th .- defendant) will have judgment against the defendarit by counterclaim, Agathe Kostiuk for the total amount of ail rents she has collected from Simpson-Sears Limited, The amount thereof shall bo as counsel may agree and prove by filing a signed admission thereof with the Clerk of this Court at the City of Yellowknife, in the Northwest Territories, within 30 days from the filing of this judgmcrit with said Clerk: or, failing such agree: ent, in such amount as shall be ascertained upon an anplicatio-i to this Court to fix said amount, which apnlicaticn shall be • commenced within 'lO days from the filing of this udgmcnt v/itli tiie said Clerk, ^
- 1̂-1 -(3) There will be a declaration that tiie said four lots more particularly described in the presently existing certificate of title No. 6203, now standing in the names of "John Kostiuk and Aggie Kostiuk" (the plaintiff and the defendant by counterclaim.), jointly, are held by them on trust for the benefit of the said John Kostiuk absolutely. (4) There v/ill be a further declaration that the said Agathe Kostiuk (the defendant by counterclaim) has not nov/ and never had any beneficial interest in the said lots or any of them, (5) It is ordered that the lands arid premises more particularly described in tf.c presently existing certificate '2 of title No, 6203 issued out of the Land Titles office for
the North'vvest Terr-i ccrles Land Registration District on the 10th day of January, 1972, be and the same are hereby vested in the plaintiff by counterclaim, John Kostiuk of the Town of Hay River, in the Northwest Territories, businessman; and the Registrar of the Northv/est Territories Land Registration Distrint TP directed to caiicel the presently existing ccrti-ficaf'= of title ^'0, 0203 registerid in -fhe names of .Tnlm Kostiuk and Agathe Kostiuk and the duplicate thereof; and to issue a new cer-tificate of title and duplicate thereof covorinr the land now described in said cer .ificate of titlo No, 62C3 in the name of John Kostiuk, of the Town of Hay River, in the Northwest Territories, businessman;; subject to any and aH. encumbrances, if any, registered against the said land, i ^
- 42 -(6) The plaintiff will also have judgment agains't tlie defendant John Kcstiik, for ner costs of and incidental 'to this action; such to bo taxed and allov/ed under- column 4 cf the Tariff of Costs. (7) The plaintiff by counterclaim, John Kosiiu.k. v.'i.ll also have judgment a-Tainst the deferidant by counterclaii,i, Agathe Kos'tiuk, for his costs of and incidental to his cz:)\intcz claim, such to be taxed under Column î- cf the Tarif.f o:'.' Co:n;,E. (8) Leave is hereby reservc^d to both parties to arri::ly further should such beno.̂ iie necessary. Dated at th. City cf Yellowknife, in tne North-er. -Territories, tliis list day of Se]rte;nber A.D. 1978 I Dy. J. D. C. Disben-y
of m'-i ^ ^