V02573 Victoria Registry Court of Appeal for British Columbia ORAL REASONS FOR JUDGMENT: Before: The Honourable Mr. Justice Finch June 24, 1996 The Honourable Mr. Justice Donald The Honourable Mr. Justice Williams Victoria, B.C. BETWEEN: DIANNE TOTH PLAINTIFF (APPELLANT) AND: TIBERIO LUIS de FRIAS DEFENDANT (RESPONDENT) S. Odette Coccola appearing for the Appellant Shaun Elizabeth Dolman appearing for the Respondent 1DONALD, J.A.: This is an appeal from a judgment pronounced 13 February 1994 dismissing the plaintiff's action for a declaration of constructive trust over the defendant's property or, in the alternative, for a monetary award in quantum meruit for services provided. 2 The learned trial judge held that, although the plaintiff provided services of value to the defendant, when he considered the whole of the circumstances of their relatively brief cohabitation he found that she did not demonstrate an unjust enrichment. 3 The plaintiff approached this appeal as a full reconsideration of the trial evidence. We are not here to retry the facts of a case. As a court of error we can only interfere with the trial judgment on the basis of an error of law or a probable or overriding error of fact. 4 In this case the learned trial judge examined the evidence with care and decided that the plaintiff roughly gained as much as she lost in her relationship with the defendant. That is a fact-based determination which cannot be overturned unless it is shown to be plainly wrong. 5 The parties began living together in July 1993 after a year of dating. The plaintiff moved into the defendant's home at 995 Nicholson Street in Victoria with her daughter. She performed most of the household work and paid for some of the food and a portion of the utilities. In August 1993 the parties became engaged. The defendant gave her a ring valued at $3,590.00. 6 In September 1993 the defendant sold the Nicholson Street residence and purchased another home at 4181 Beckwith Place, also in Victoria. The plaintiff is a legal secretary. She assisted the defendant in the sale of the Nicholson Street home and in the acquisition of the Beckwith Place home in the sense that she prepared some documents, showed the place, and otherwise assisted the defendant. The parties gave conflicting testimony as to the extent of the plaintiff's help with these transactions. 7 Also in September the plaintiff obtained an absolute discharge from bankruptcy. 8 During their cohabitation the parties shared some expenses but the learned trial judge found that the defendant looked after the mortgage, insurance and taxes and paid for the majority of the upkeep and maintenance of the property. 9 He found that the earnings of the parties were roughly equal. 10 In January 1994 the defendant lent the plaintiff $1,600.00 to buy a car and co-signed a $12,000.00 bank loan to assist her in the purchase. The plaintiff has repaid $400.00 of the loan and treats the balance as a gift. 11 In May 1994 the relationship broke down and the defendant asked the plaintiff to leave. She was unable to find other accommodation for herself and her daughter until 4 June 1994 when she moved out. 12 The learned trial judge's assessment of the equities arising from this 10 month cohabitation was as follows: In applying these authorities to the case at bar, I find that the plaintiff, in fact, benefitted from the relationship to at least the same extent as the defendant, if not more so. In the absence of submissions on the value of the defendant's monetary contributions (as in Harrison v. Kalinocha (supra)), I must give due rgard (sic) to the fact that the plaintiff was afforded free shelter for herself and her daughter. I further note that she received and accepted from the defendant $1,200 towards the purchase of her car. I also take into consideration the fact that the plaintiff received from the defendant an engagement ring with an assessed value of approximately $3,590. I recognize that at law this ring is a "gift", that is to say, an immediate, voluntary and gratuitous transfer of personalty to which the defendant no longer has a legal claim. The doctrine of constructive trusts, however, is an equitable doctrine and I therefore consider this rather substantial gift to be a relevant factor in assessing whether the plaintiff suffered a "corresponding deprivation". I further note that the plaintiff was not caring for any dependents of the defendant nor was she in a position of caring for the defendant through a period of illness (cf: Crick v. Ludwig (1994), 117 D.L.R. (4th) 228 (B.C.C.A.)). The plaintiff did not forego her employment on account of the relationship but, rather, the relationship provided the plaintiff with financial security and security of shelter during periods of unemployment. I have no doubt that the plaintiff did a considerable amount of domestic work but whatever benefits were bestowed upon the defendant by such work were compensated adequately by the benefits mentioned above which the plaintiff has received during the relationship. I have not yet mentioned the rather short duration of time during which the parties were involved nor what impact this ought to properly have in such a proceeding. On this point, I simply note that while the passage of time is of "some significance", it is not a determinative factor in finding the existence of a constructive trust. As the Court of Appeal commented in Crick, the "intensity of the contribution during a shorter period can surely be of equal value as a lesser contribution over a longer period" (Crick (supra) at 242). In the case at bar, I am satisfied that the benefits bestowed on the defendant which were neither of significant length nor intensity have been adequately compensated by the benefits bestowed upon the plaintiff during the relationship. 13 He dismissed the alternative claim for quantum meruit because he could find no basis for implying a contract for the payment of domestic or other services. 14 In his analysis of the case the learned trial judge addressed himself to the leading case in this field, Peter v. Beblow (1993), 1 S.C.R. 980. It reaffirmed that unjust enrichment has three essential elements: 1. An enrichment; 2. A corresponding deprivation; and 3. The absence of a juristic reason for the detriment. 15 The plaintiff alleges that the learned trial judge erred in several ways in his treatment of the evidence: 1. In failing to place a value on the plaintiff's services; 2. In failing to consider the increase in value to the Beckwith Street residence as a result of the plaintiff's contributions; 3. In failing to consider the contribution made by the plaintiff to the real estate transactions as a contribution to the acquisition of the Beckwith Street residence; 4. In considering the common law relationship as a room and board arrangement; 5. In considering gifts from the defendant to the plaintiff as contributions by the defendant; 6. In failing to find that the plaintiff suffered a deprivation. 16 These allegations attack the trial judge's appreciation of the evidence. I think, with respect, they are without substance and I would not accede to them. 17 Peter v. Beblow emphasized that household services are of great value but it also recognized the difficulty in placing a precise dollar value on them. Madam Justice McLaughlin, writing for the majority, agreed with Mr. Justice Cory who wrote concurring reasons for himself and two others on the difficulty of evaluating such services. 18 At p. 998 Peter v. Beblow Madam Justice McLaughlin said: Cory J. advocates a flexible approach to determining whether constructive trust is appropriate; an approach "based on common sense and a desire to achieve a fair result for both parties".... While agreeing that courts should avoid becoming overly technical on matters which may not be susceptible of precise monetary valuation, the principle remains that the extent of the trust must reflect the extent of the contribution. 19 She also said at p. 997: For these reasons, I hold the view that in order for a constructive trust to be found, in a family case as in other cases, monetary compensation must be inadequate and there must be a link between the services rendered and the property in which the trust is claimed. Having said this, I echo the comments of Cory J. at p. 1023 that the courts should exercise flexibility and common sense when applying equitable principles to family law issues with due sensitivity to the special circumstances that can arise in such cases. The next question is the extent of the contribution required to give rise to a constructive trust. A minor or indirect contribution is insufficient. The question, to quote Dickson J. (as he then was) in Pettkus v. Becker, supra, at p. 852, is whether "[the plaintiff's] contribution [was] sufficiently substantial and direct as to entitle her to a portion of the profits realized upon sale of the ... property." Once this threshold is met, the amount of the contribution governs the extent of the constructive trust.... 20 The learned trial judge made express mention of the plaintiff's household and other services in his reasons. It cannot be said that he ignored important evidence. He took into account the totality of what passed between the parties, including gifts, which he was entitled to do in order to reach a sense of the fairness of the situation. 21 This was a short relationship. The contribution to the property was so minor and indirect that it could not carry the plaintiff over the threshold described in the passage just quoted from Peter v. Beblow. But in taking that view I do not think that the learned trial judge reduced the relationship to a room and board arrangement nor did he disregard the value of what the plaintiff did. 22 His decision rests on the finding that the benefits derived by the plaintiff in the relationship offset her contributions such that in the end no deprivation was established. 23 As to the quantum meruit claim, while I have some difficulty with the learned trial judge's basis for rejection, the absence of a contractual foundation, nevertheless his decision that the plaintiff suffered no deprivation and hence there was no unjust enrichment forms a sufficient and irreversible ground for refusal. 24 As previously set out, Peter v. Beblow discussed quantum meruit as one of the remedies available for unjust enrichment. It holds that on a finding of unjust enrichment the court must first determine whether a monetary award on quantum meruit would adequately compensate the claimant before going on to consider the imposition of a constructive trust. Entitlement to quantum meruit as a remedy for unjust enrichment does not depend on the existence of an implied contract. 25 I would dismiss the appeal. FINCH, J.A.: I agree. WILLIAMS, J.A.: I agree. FINCH, J.A.: The appeal is dismissed. "The Honourable Mr. Justice Donald"