2005 BCCA 518 Moyes v. Ollerich Estate

Before:	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Donald
	The Honourable Madam Justice Saunders

Oral Reasons for Judgment

N.J. McDougall	Counsel for the Appellant
S.T. Rule	Counsel for the Respondent
Place and Date:	Kelowna, British Columbia
22 September 2005

[1] This is an appeal from the decision of a Chambers judge made March 31, 2005, ordering Ms. Blanche Nishi, in her capacity as Executrix of the Will of Marjorie Ethel Ollerich, to pay $125,000 plus interest from the estate to the respondent, Ms. Moyes. The order was made on the basis of a finding that Ms. Ollerich had been unjustly enriched by the services provided by Ms. Moyes to Ms. Ollerich in the many years prior to the latter’s death. This award was in addition to a bequest of $25,000 which Ms. Moyes received under Ms. Ollerich’s will.

[2] There are only two issues on appeal:

1. whether the Chambers judge erred in finding that there was no evidence challenging Ms. Moyes’ assertion that she had a reasonable expectation of inheriting a significant portion of Ms. Ollerich’s estate; and

2. whether the Chambers judge erred in making an award for unjust enrichment that was inordinately high.

[3] By way of brief background, Ms. Moyes is a stepdaughter of Ms. Ollerich and was 75 years of age at the time of the hearing. Her father married Ms. Ollerich when Ms. Moyes was 18 years of age. Over the years, she and Ms. Ollerich enjoyed a very close relationship. In 1966, Ms. Moyes’ father passed away and left his entire estate to Ms. Ollerich. Thereafter, the close relationship between Ms. Moyes and Ms. Ollerich continued, including periods when Ms. Moyes was not living in Kelowna.

[4] In 1994, Ms. Ollerich broke her hip and her health began to deteriorate. At this point, Ms. Moyes began to spend more time with her: keeping her company; doing her chores; and attending to her care. In 1998, Ms. Ollerich’s health continued to deteriorate to the extent that she spent some time in hospital and in care facilities. The level of care which Ms. Moyes provided increased and covered almost every aspect of Ms. Ollerich’s life. From mid-1999 until the date of her death in September 2002, Ms. Ollerich was either in a hospital or in a care facility on a full-time basis. Ms. Moyes continued to spend considerable periods of time with Ms. Ollerich and to provide ongoing services of a broad nature.

[5] Upon Ms. Ollerich’s death, her estate was valued at approximately $700,000 after payment of funeral expenses. In her will, Ms. Ollerich left bequests totalling approximately $100,000, including a $25,000 bequest to Ms. Moyes. In the result, the bulk of her estate was left to her brother, Harry Chaplin, or, if he pre-deceased her or died within 30 days of her death, to his three daughters, including Ms. Nishi.

[6] Ms. Moyes’ evidence was that she understood from two different conversations she had with Ms. Ollerich that she would receive a significant portion of Ms. Ollerich’s estate. Her evidence is that at one point Ms. Ollerich told her that Ms. Moyes and Ms. Moyes’ sister, who subsequently passed away, would share the estate. In a later conversation, Ms. Ollerich told Ms. Moyes, that apart from a few specific bequests, Ms. Moyes and Mr. Chaplin would share the estate.

[7] The Chambers judge referred to Peters v. Beblow (1993), 77 B.C.L.R. (2d) 1 (S.C.C.) in finding that Ms. Moyes had established the basic requirements of unjust enrichment; namely, that Ms. Ollerich had been enriched by Ms. Moyes’ services, that Ms. Moyes suffered a corresponding deprivation, and that there was no juristic reason for the enrichment.

[8] The only challenge to the finding of unjust enrichment on appeal relates to the third element; that is, whether there was any juristic reason for the enrichment. The only aspect of that finding which is attacked relates to the statement by the Chambers judge that there was no evidence to refute Ms. Moyes’ evidence that she had a reasonable expectation of receiving a significant portion of Ms. Ollerich’s estate. The appellant submits that this statement by the Chambers judge ignores the provisions of Ms. Ollerich’s will, which did not provide a substantial benefit to Ms. Moyes, and that it also fails to recognize that the onus was on Ms. Moyes to prove that she had a reasonable expectation of reward, not on the appellant to disprove it. The appellant submits that there was no corroboration of Ms. Moyes’ evidence in that regard.

[9] In my view, the appellant’s submission is misconceived. While a Chambers judge should be careful in assessing the evidence of a person in the position of Ms. Moyes, who is relating conversations with a person who cannot respond, there is no requirement for corroboration. Further, the Chambers judge did not simply accept the evidence of Ms. Moyes, but she considered whether that evidence was consistent with the surrounding circumstances. Amongst other things, the Chambers judge referred to the close and long-standing mother/daughter‑like relationship between Ms. Ollerich and Ms. Moyes, the fact that Ms. Ollerich’s closest blood relative was her elderly brother, and the evidence that Ms. Moyes was clearly upset and surprised when she found out the actual terms of the will shortly before Ms. Ollerich’s death.

[10] The Chambers judge concluded on this point at para. 17 of her reasons by stating that “[o]n all of the evidence before me, I am satisfied that the plaintiff has proved the third requirement and therefore has established an unjust enrichment.”

[11] In my view, this conclusion is supported by the evidence and there is no basis for interfering with it.

[12] I now turn to the second ground of the appeal, which alleges that the Chambers judge erred in making an award for unjust enrichment that was inordinately high.

[13] As earlier stated, the Chambers judge awarded Ms. Moyes an additional $125,000 from the estate. In approaching this issue, the Chambers judge considered several cases, including: Peter v. Beblow, supra; Clarkson v. McCrossen (1995), 3 B.C.L.R. (3d) 80 (B.C.C.A.); and Pickelein v. Gillmore (1997), 30 B.C.L.R. (3d) 44 (B.C.C.A).

[14] At paras. 20 and 22 of her reasons she stated:

[20] In this case, there is no evidence to suggest that a monetary award would be inappropriate or unfair. In determining the amount of the award, the whole of the mutually supportive relationship between the plaintiff and her step-mother, in addition to the specific services provided by the plaintiff to her step-mother since at least 1989, should properly be taken into account: Clarkson v. McCrossen, supra, at 95‑6.

…

[22] Taking all of the evidence into account, including the $25,000 specific bequest already received by the plaintiff, I have concluded that the award to the plaintiff for unjust enrichment should be a further $125,000.

[15] Counsel have provided the Court with cases which provide awards for unjust enrichment ranging from $18,000 to $125,000. Each of these cases turns on its particular facts. In my view, however, the case which is somewhat analogous to that here is Clarkson, supra, a 1995 decision of this Court which upheld the trial judge’s award of $125,000. That case involved a claim by a stepdaughter against her stepfather’s estate. While it may be fair to say that the nature and extent of the services provided by the stepdaughter in Clarkson was greater than that here, that case does not purport to set an upper limit. It was simply a case in which this Court determined that it was inappropriate to interfere with the quantum of the award.

[16] In the result, I am not persuaded that the Chambers judge erred in finding that an award of $125,000 was just in the circumstances. It is clear from the authorities that trial judges have considerable discretion in that regard to take into account the specific circumstances before them. Without derogating from assistance that was provided by other relatives, the Chambers judge was justified in finding that the services of Ms. Moyes provided to Ms. Ollerich in a relationship akin to that of mother and daughter called for an award significantly greater than the bequest provided for in Ms. Ollerich’s will.

[17] In the result, I would dismiss the appeal.

[18] DONALD J.A.: I agree.

[19] SAUNDERS J.A.: I agree.

[20] PROWSE J.A.: The appeal is dismissed. I wish to thank counsel for their helpful submissions.

“The Honourable Madam Justice Prowse”