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Lorne MacLean, KC in the News

MacLean Law’s Vancouver Unjust Enrichment Family Lawyers note a great summary of what the test is to make a common law unjust enrichment claim against property based on equity. Vancouver Unjust Enrichment Family Lawyers help clients pursue these claims both in family and in estate dispute cases. Our top rated Vancouver Unjust Enrichment Family Lawyers helped set the law in the area of  claims in extended family disputes. In the recent BC Court of Appeal decision of Xu v Hu the son -in-law claimed $50 million against our client, his father-in law. When the smoke cleared our client was found to owe nothing to his son-in-law. Hiring Vancouver family trial lawyers who know key strategies to maximize your chances of success makes good sense. Winning Counsel and founder Lorne MacLean, KC explains how unjust enrichment and constructive trust claims involving extended families works.

Unjust enrichment and constructive trust claims can be made by spouses and even third parties. In the family law and estate litigation context where a child may sue the estate of a deceased parent the concept of a joint family venture also applies.

The Supreme Court in the 2011 decision of Kerr held that the additional concept of  “a joint family venture” which is now an integral component of the unjust enrichment analysis for common-law spouses and even when a son or daughter-in-law’s is suing their spouse’s parents. Canadian Courts court must now take into consideration the four pillars (or characteristics/headings) of the family venture:

  • mutual effort,
  • economic integration,
  • actual intent and,
  • priority of the family.

Vancouver Family Trial Lawyers 1 877 602 9900

In the recent case of Gill v Gill, the daughter-in-law of the owner of a home her husband and she resided in during their relationship, appealed the dismissal of her claim for an interest in a home in Delta, British Columbia owned by her father-in-law.

The daughter-in-law and her ex-husband lived in the home during their marriage. The appellant claimed that her ex-husband and former father-in-law were unjustly enriched by contributions she made towards the property, including mortgage payments, during the marriage. The Court of Appeal reviewed the components of a claim for unjust enrichment and found that there was a legitimate reason for her to receive no interest in the father-in-law’s home.

Vancouver Unjust Enrichment Family Lawyers

The BC Court of Appeal upheld the trial judgment on the basis that the husband and daughter-in-law had signed a rental agreement on the property which meant there as no basis to find it would be unfair for her not to receive an interest in her father-in-law’s home.

Vancouver Unjust Enrichment Family Lawyers
Vancouver family lawyers Fraser MacLean, Keith Bracken and Lorne MacLean, KC

What Is Unjust Enrichment and How Does It Work? 1 877 602 9900

Our Vancouver Unjust Enrichment Family Lawyers have extracted the key parts for you here:

[71]         Generally, “the doctrine of unjust enrichment applies when a defendant receives a benefit from a plaintiff in circumstances where it would be “against all conscience” for him or her to retain it. Where this is found to be the case, the defendant will be obliged to restore that benefit to the plaintiff”: Moore v. Sweet, 2018 SCC 52 at para. 35. As said by McLachlin J. (as she then was) in Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762 at 788; 1992 CanLII 21 (SCC), “[a]t the heart of the doctrine of unjust enrichment … lies the notion of restoration of a benefit which justice does not permit one to retain.”

[72]         Under the unjust enrichment framework, a plaintiff will be successful if they can show that (1) the defendant was enriched; (2) the plaintiff suffered a corresponding deprivation; and (3) the defendant’s enrichment and the plaintiff’s corresponding deprivation occurred in the absence of a juristic reason: see Pettkus v. Becker, [1980] 2 S.C.R. 834 at 848; 1980 CanLII 22 (SCC) [Pettkus]; Garland v. Consumers’ Gas Co., 2004 SCC 25 at para. 30 [Garland]; Kerr, at paras. 30–45.

[73]         The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason; in other words, that there is no reason in law or justice for the defendant to retain the benefit conferred by the plaintiff, making its retention unjust: Kerr at para. 40.

[74]         In Garland, Iacobucci J., at paras. 44–46 outlined a two-step approach in determining whether there is no juristic reason for the retention of the benefit conferred. At the first step, the plaintiff must prove there is no established category of juristic reason to deny recovery, including an intention to make a gift (donative intent), a contract, or a disposition of law: see also Kerr at para. 41. The plaintiff will have made out a prima facie case under the juristic reason component of an unjust enrichment analysis if they can demonstrate that no existing category is applicable. The prima facie case is rebuttable, however, where the defendant can show why the enrichment should be retained even though the case falls outside the established juristic reason categories. At this second step, the defendant has a de facto burden of proof: Kerr at para. 43. It is at this step that a court may consider the legitimate expectations of the parties and moral and policy-based arguments about whether the retention of a particular benefit would be unjust: see Pettkus at 849; Peter v. Beblow, [1993] 1 S.C.R. 980 at 990; 1993 CanLII 126 (SCC); Kerr at paras. 44–45.

[75]         Applying this analytical framework to the case at bar, Gurinder had to show at the first stage of the inquiry that the enrichment did not occur pursuant to an established category of juristic reason.

[76]         In oral argument, Gurinder acknowledged it was open to the judge to dismiss her claim at the first step of the juristic reason inquiry by finding that the existence of the tenancy agreement was a juristic reason to deny recovery. She submitted, however, that the judge did not make this finding. In her submission, the analysis proceeded to the second stage where the judge erroneously placed an onus on her to establish that she conferred a net benefit upon Gurmail by making (or contributing to) monthly payments to him that exceeded the market rental value of the property.

[77]         Gurmail submits that the judge did not so err and dismissed Gurinder’s claim upon finding that the tenancy agreement constituted a juristic reason to deny recovery. In short, the analysis never proceeded to the second step of the juristic reason prong of the inquiry because Gurinder failed to show that the benefit and corresponding deprivation occurred without an established juristic reason. I agree with Gurmail’s position.

If you have a disputed family law case, or feel you have an entitlement to property you contributed to that you did not receive a fair share of in an estate dispute , call our Vancouver Family Trial lawyers and Vancouver constructive trust lawyers at 1 877 602 9900.