Date: 19990909
Docket: S754
Registry: Powell River

[2] The plaintiff alleges that during their relationship the defendant acquired certain assets on behalf of himself and the plaintiff as equal partners, namely a Guide/Outfitters Certificate and a Crown Lease of certain lands situate at Foster Point on the B.C. coast. She says that during their relationship they carried on a guide/outfitting business as a joint venture, and they also entered into a "business venture" for the development of an outdoor health oriented business, or herbal retreat, for "a clientele to be developed".

[3] The plaintiff also alleges that during the relationship she provided services and improvements to the property, buildings and equipment of the partnership without salary, wages or other remuneration.

[4] She further alleges that the defendant was without funds and that she provided funding for the partnership and joint venture in excess of $38,000.00. In the alternative, she says that she loaned the sum of $38,000.00 to the defendant, which amount is now due and owing to her.

[5] The plaintiff claims that when he terminated their relationship the defendant "ousted" her from the partnership property and retained all of the partnership assets to himself.

[6] She seeks a declaration that they were equal partners in the guide/outfitter business and that the defendant holds the Guide/Outfitter Licence and Crown Lease for both parties, as equal partners. In the alternative, she seeks a declaration that the defendant holds the Licence and Crown Lease in trust for their joint benefit pursuant to either an express, resulting or constructive trust, and an order that he transfers to her a one-half interest in both the Licence and the Lease.

[7] In the further alternative, the plaintiff seeks damages for breach of contract or, on a quantum meruit basis, for services rendered to the defendant,

[8] The parties met for the first time in January, 1993. The plaintiff was then 32 years of age. She was then, and still is, a licensed practical nurse, but was unemployed, having voluntarily left a job at one of the Vancouver hospitals in August, 1992. Since leaving that job she had lived on UIC benefits and she had just received the final installment.

[9] When they met, the plaintiff was contemplating a complete change in her lifestyle. Having taken a natural healthcare course, she was thinking about establishing an herbal retreat.

[10] Her assets at the time consisted of:

(a) approximately $5,000 in cash and savings;

(b) $30,000 in RRSPs; and

(c) 2 vehicles: one being a 1989 Dodge Mini Van, and the other a 1986 Acadian which she later sold to the defendant for $1,500.00.

[11] The defendant was 32 years old when they met. His only asset was about $2,000.00 in savings. He was doing odd jobs as a carpenter while occasionally working for one of the coastal logging companies. His aim in life was to become a licenced guide/outfitter like his father who, for the past ten or fifteen years had run a small guiding operation from a base at or near the mouth of the Brem River, where it empties into Toba Inlet north of Powell River. The defendant assisted his father during the hunting seasons.

[12] Mr. Voll Sr. did not own or have a leasehold interest in the land he occupied at Brem River, but he maintained two small cabins there that he used as his hunting and fishing camp. He also held the Crown lease of a 2.5 acre property on Foster Point, close to Toba Inlet, on which was located a small cabin built by the defendant.

[13] Two weeks after the first meeting the parties met again, and they began dating on a regular basis whenever the defendant was in Vancouver. In February they spent a weekend together at Garden Bay, where the defendant was working. Not long after that they spent some time at Foster Point and Brem River, where the plaintiff met the defendant's father.

[14] On the weekend following their trip to Foster Point and Brem River the defendant asked the plaintiff to marry him and live with him at Foster Point. She was hesitant about the idea of marriage, but told him that she wanted to have his child and agreed to live there with him.

[15] In April 1993, they moved to Foster Point. On the way, they stopped in Powell River where the defendant found a 14 foot boat with a 20 h.p. Johnson outboard motor boat that he wanted to buy for use in the guiding business and for travelling back and forth from Lund to the Foster Point and Brem River cabins. He had no money so, at his request, the plaintiff bought it, charging the $2,907.00 purchase price to her Visa account. They carried the boat on the roof of her van as far as Lund. There, they put it into the water and traveled in it to Foster Point.

[16] The cabin at Foster Point consisted of just one-room, about 13' x 24' in size. It had no indoor plumbing and was in not very good condition. While they lived there, the parties added a small room and a bathroom with indoor plumbing. They also paneled the inside walls and installed a gas range. They shared the domestic chores, the defendant doing most of the heavy physical work while the plaintiff cleaned the cabin and did the cooking. She also prepared some garden beds and planted some herbs.

[17] To help furnish the Foster Point cabin the plaintiff took up some of her own furniture from Vancouver, where it was in storage. She also bought a bay window for the bathroom and traded in a wardrobe for a used bathtub.

[18] They both enjoyed living at Foster Point, and the plaintiff decided that she would like to use it as the site for an herbal retreat. The defendant had no objection to that, so long as it did not interfere with the guiding operation that he hoped to establish there.

[19] The parties lived together at Foster Point until December, 1993 when, due to failing health, the defendant's father had to leave the Brem River campsite and move into Powell River. In circumstances that I will later describe, the defendant then acquired the Guide/Outfitter Licence and the Crown Lease of the Foster Point property. After Mr. Voll Sr. had been settled in Powell river, the parties moved from Foster Point to the Brem River campsite, presumably so that the defendant could carry on the guiding business. Living conditions there were decidedly spartan. When they arrived, they found the two cabins were in a filthy state and infested with rodents. The plaintiff testified that she spent the first two weeks cleaning up the cabins while the defendant worked outside. To make the cabins more habitable, they moved some of the plaintiff's furniture over from the Foster Point cabin.

[20] The plaintiff acknowledged that, from the outset, their relationship was a volatile one and, from early 1994 on, it was "stormy". There were frequent arguments and on at least two occasions the plaintiff left the Brem River campsite and moved back to Powell River, vowing never to return. Each time, however, they patched up their differences and, at the defendant's request, the plaintiff returned to live with him at Brem River.

[21] One of the separations occurred in late June, 1994 and the plaintiff moved to Powell River. While staying there, she helped Mr. Voll Sr. find a new house to live in. Then she took a trip to Alberta, where she stayed with relatives for about two weeks. When she returned to Powell River she found that Mr. Voll Sr. had had become incapable of living alone, so she agreed to move into his home and look after him. She was paid for her services by the Social Services department. During her stay in Powell River she also obtained some part-time casual work at the Powell River General Hospital for which she was paid a little over $2,500.00.

[22] Every two weeks or so the defendant came to town to see his father and on those occasions he slept with the plaintiff at his father's home.

[23] The plaintiff remained in Powell River with the defendant's father until January, 1995 when, at the defendant's request, she returned to Brem River. In the meantime, she had visited the defendant there several times and, in September, 1994, worked for him as cook on a three week hunting trip. On those occasions, they resumed their sexual relationship.

[24] In January, 1995, the parties met in Vancouver at the Bayside Room in the Bayshore Inn. It seems to have been a romantic occasion, for that was where they first met. That evening, the defendant again proposed marriage. To establish his bona fides, he wrote a note on the back of a business card, signed it and gave it to the plaintiff. It said:

This is to Certify that Ralph Manfred Walter Voll will marry Virginia Mary Butler any time, any place, any where and under any circumstances.

[25] At about the same time, he bought and gave the plaintiff an engagement/wedding ring.

[26] Although she was still hesitant about the idea of marriage, later that month the plaintiff did return to Brem River and resume co-habitation with the defendant. They continued to live at there until October, 1995, when the plaintiff left once again. She said that she did so because she wanted to move the cabins to Foster Point but the defendant was showing no interest in doing that, or in helping her to develop the herbal retreat. So, she moved back to Powell River, at which time she enrolled in a small business development course.

[27] About two weeks after she left the defendant he asked her to return, and once again she did.

[28] During the month of November, 1995, the defendant received notice that he had to vacate the Brem River campsite and either move or demolish the two cabins. The plaintiff helped get them ready to be put on floats for moving to Foster Point. One of the cabins was moved in January, 1996; the other in April of that year.

[29] In January, 1996 the parties moved back to Foster Point, where they co-habited until the latter part of May 1996, when the defendant's aunt and second cousin arrived for a visit. The defendant asked the plaintiff to leave Foster Point and stay away during their visit. She agreed and moved into Powell River. But, the plaintiff soon learned that the defendant's aunt had not gone to Foster Point, and when she went back to the cabin she found the defendant and his cousin staying there alone. Thereupon, the defendant informed her that their relationship was over, that he and his cousin had married, and that she was to pack her things and leave. The plaintiff left Foster Point, leaving behind most of her furniture and other belongings.

[30] The plaintiff claims that they lived in a common law relationship. The defendant denies that. He says that they simply lived together, and that they never intended to enter into a common law relationship as husband and wife. He did not deny his proposals of marriage, but tried to make light of his written "certificate" of intent by saying that he had been drinking rather heavily that evening. As far as the ring was concerned, he maintained that the plaintiff had picked it out and asked him to buy it for her.

[31] I reject those explanations (neither of which was put to the plaintiff during her cross-examination). It is my conclusion that the defendant gave the written "certificate" and the ring to the plaintiff to induce her return to Brem River.

[32] Under cross-examination the defendant admitted that, during the nearly three years of co-habitation, he and the plaintiff occasionally spoke of marriage and of having children. He also agreed that they both underwent fertility testing.

[33] Nevertheless, as Newbury J.A. observed in Ford v. Werden (1996) 27 B.C.L.R. (3d) 169:

It is always difficult to look inside a relationship between two adults and to determine, after it has disintegrated, whether it had the characteristics of a marriage.

[34] In considering this matter, I found apposite the following observation made by Lambert J.A. in Gostlin v. Kergin (1986) 3 B.C.L.R. (2d) 264:

If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer both of them would have been 'Yes', then they are living together as husband and wife. If the answer would have been 'No', then they may be living together, but not as husband and wife.

[35] In light of the demeanour of the parties as they testified, and the short and tumultuous nature of their relationship, I am certain that if the same question had been put to either of them during their relationship the answer would have been clear "No".

[36] I find that the relationship between the parties was not that of a common law marriage. They simply lived together and enjoyed a sexual relationship.

[37] As noted above, the plaintiff asserts that, from the very outset of their relationship, she and the defendant carried on the business of a guide/outfitter as a joint venture. She alleges that during that time the defendant acquired and held Guide/Outfitters Certificate No. 200334 and Crown Lease No. 2402784 covering the 2.5 acre parcel of land at Foster Point for and on behalf of the defendant and herself as equal partners. She also alleges that they entered into a "business venture" for the development of an outdoor health oriented business, a "venture" that was, at trial, referred to by both parties as an "herbal retreat". She claims that when the defendant terminated their relationship in May, 1996, he "ousted" her from the partnership property and that he retains all of the assets of the partnership and their relationship.

[38] The evidence falls far short of establishing a partnership, or a joint venture. The are no written agreements and not even in their income tax returns, which were prepared in accordance with the plaintiff's instructions, is there any indication that their businesses were jointly owned. What the evidence does show is that they entered into a simple arrangement whereby, when the plaintiff assisted the defendant in his guiding operations he would pay her for her services, and if and when the defendant assisted the plaintiff in connection with her hoped for herbal retreat she would pay him for his services.

[39] I use the phrase "hoped for" in connection with the plaintiff's herbal retreat. That is all it amounted to: a dream. It was never an active business. In her 1993, 1994 and 1995 income tax returns she claimed business losses totalling $7,085.93, but the only income she recorded was the sum of $335.78 in 1995. She did plant some herbs at Foster Point and take a small business course, but she never had any clients and she never needed the defendant's help.

[40] The plaintiff's claims, so far as they are based on the existence of a partnership or joint venture, are dismissed.

[41] That leaves to be considered the plaintiff's claims for a declaration of trust, or for debt or damages.

[42] In her Statement of Claim the plaintiff alleges that during the relationship she provided funding for the alleged partnership and joint venture in excess of $38,000.00. In the alternative, she claims that she loaned the sum of $38,000.00 to the defendant.

[43] The plaintiff testified that in the early stages of the relationship she paid for practically everything they needed in the way of food, fuel and renovation supplies by changing them to her Visa account. By August of 1993, she said, her credit card was "maxed out" and her savings had been used up and, as the defendant had no money, she then went to the Social Services office where she was able to obtain two cheques.

[44] After that, she began to draw on her savings. Between October, 1993 and December, 1995 she withdrew the aggregate sum of $20,863.70 from her RRSP account. Those monies, together with what she earned by looking after the defendant's father and from her casual work at the hospital, went into her bank account and were used for either ordinary living expenses or in connection with the defendant's business.

[45] The plaintiff acknowledged that, as time went by and the defendant began to earn income from the guide/outfitting business, he too bought groceries and paid for gas. In fact, at one point in her testimony, she said that most of the time their expenses were shared equally.

[46] The defendant says that he bought most of the groceries and that he reimbursed the plaintiff for most of what she paid, sometimes by paying her Visa bills for her. And he also says that the groceries and fuel for the hunting trips were paid for out of advance deposits he obtained from the guests. However, at the time, neither of them kept track of their expenses, and the defendant has no records to substantiate what he says. Throughout their relationship they maintained separate bank accounts and, according to the defendant, all of his personal and business financial records disappeared from the Foster Point cabin. While he does not expressly accuse the plaintiff of taking them, he does say that they disappeared after he terminated their relationship.

[47] On the evidence, I have concluded that the parties shared equally in the payment of their personal living expenses, including food and supplies and gas and fuel. Neither of them is entitled to any financial compensation in that regard.

[48] Nevertheless, the evidence shows that during the relationship the plaintiff provided financial assistance to the defendant's business operations. In fact, he admits that to be the case. The question is, what was the extent of her financial contribution?

[49] At trial, the plaintiff produced a book of financial statements, supported by copies of cancelled cheques, credit card vouchers, invoices and the like (Exhibit 3) in which she purports to have set out particulars of all monies expended by her during the course of the relationship with respect to:

(a) renovations and improvements to the cabin at Foster point;

(b) purchases and upkeep/repairs of boats;

(c) purchase and upkeep/repairs of a backhoe;

(d) fuel and gas purchases; and

(e) miscellaneous expenses.

[50] She claims that she spent $3,198.61 on renovations and improvements to the Foster Point cabin; $11,624.46 on the purchase and upkeep of boats; $5,319.67 on the purchase and upkeep of a backhoe; $3,207.83 on fuel and gas purchases; and a further $31,531.99 on miscellaneous items; making a total of $54,882.56.

[51] Notwithstanding the allegations made in her Statement of Claim, that is the amount which, at trial, she claimed is due and owing to her.

[52] However, during the plaintiff's cross-examination it became clear that her financial statements are inaccurate and unreliable. For example:

(a) they contain no record of the monies, amounting by her own admission to at least $6,400.00, that the defendant had paid to her during their relationship;

(b) she acknowledged that a portion of the recorded expenditures for food and gas was for their mutual benefit;

(c) many of the listed expenditures were incurred while she was living with and looking after Mr. Voll and had nothing to do with the defendant or his business;

(d) other listed expenditures were made for the benefit of Mr. Voll Sr. and she had been reimbursed for them; and

(e) one of the boats mentioned in her list of monies spent on the purchase and upkeep of boats is in her possession.

[53] Moreover, entries in her bank statements support the defendant's contention that she was paid for the days she spent helping him on hunting trips.

[54] While reviewing the plaintiff's statements of monies spent on fuel, gas and miscellaneous items, I found it impossible to distinguish the amounts spent on what I consider to be their "domestic" or living expenses (groceries, boat fuel and gas used travelling back forth from the cabins and other incidentals for their mutual use and enjoyment) from those relating to the defendant's business operations. The plaintiff's evidence shed no light on that problem. So, having already decided that their living expenses were shared more or less equally, I leave aside those amounts save for the following "miscellaneous" expenditures that were directly identified by the plaintiff, and I have accepted as having been made with respect to the defendant's business operations:

[55] To those amounts I add the sum of $3,198.61, which the plaintiff's records show went towards the renovations and improvements to the Foster Point cabin, and the sum of $5,169.46 spent on the purchase and upkeep of boats (apart from the March 8, 1994 purchase of the 17' Double Eagle which is in her possession), bringing the total of what I find were the plaintiff's financial contributions to the defendant's business to $20,684.64.

[56] According to the defendant most, if not all, of those amounts were repaid by him but (as I mentioned earlier) he has no records to substantiate that. However, when the plaintiff was cross-examined on her bank statements covering the period March 22, 1993 to February 22, 1996, she acknowledged that, during that period, she received from the defendant payments amounting to $6,400.00. It appears that some of the payments were for wages earned during hunting trips, but it not possible to say exactly how much. The parties' income tax returns are of no assistance.

[57] Accordingly, on the evidence, and in a somewhat arbitrary manner, I have concluded that the plaintiff contributed the net amount of $15,000.00 to the renovation of the Foster Point cabin and the operation and maintenance of the defenant's guide/outfitter business.

[58] An additional amount, not directly connected with the business, but for which the plaintiff is entitled to be reimbursed, is the sum of $1,000.00 she advanced to the defendant on December 27, 1994 to help defray the costs of his trip to Germany to visit his mother. On the evidence it is reasonable to conclude, as I do, that was a loan that the defendant agreed to repay.

[59] The plaintiff also alleges that during the relationship she worked and provided services and improvements to the "properties, buildings and equipment" (the Foster Point and Brem River campsites, cabins and whatever equipment was located at those places) without any salary, wages or other remuneration.

[60] The evidence shows that while she was living at one or other of the campsites, the plaintiff helped with the renovations, cooked, washed dishes and cleaned for the parties and for hunting guests, and worked outside preparing beds for flowers and herbs. While her "domestic" services of that nature were a contribution to the relationship, there was no reason for her to expect payment for them.

[61] The services she rendered in connection with the defendant's business are a different matter. He does not deny that she often assisted him in the operation of his guide/outfitter business. What is in dispute is whether she was, or ought to have been, paid for those services.

[62] On the evidence I find that, when the plaintiff assisted the defendant on a hunt by doing the cooking and helping out generally, the defendant paid her at the rate of $50.00 per day. Although the defendant has no records to corroborate his testimony, I find that on those occasions she was paid at the agreed rate, mainly in cash.

[63] I also find that the plaintiff occasionally met incoming hunting or fishing guests at the airport and transported them to whichever of the campsites was then being used as the base camp. There, she cooked the meals, washed the dishes, cleaned the cabins and made the beds. At times she purchased the groceries; and on several occasions she went along on hunting trips as cook and general factotum. She was not paid for those services but, by the same token, there is no evidence to show that she expected, or asked, to be paid for them.

[64] First, I note that, as at the date of trial, the defendant no longer held a Crown Lease of the Foster Point property. In or about 1994 the Government of British Columbia imposed a moratorium on the granting of Crown leases of such properties and, when the term of the lease expired in 1997, it could not be renewed. The defendant testified that the provincial moratorium has now been lifted and that he would like to acquire a new lease of the Foster Point property. However, he says, in order to do so he would have to have it surveyed. That, together with other requirements, would likely entail considerable expense of which no estimate was provided.

[65] The plaintiff submits that I should proceed as if the defendant does hold a Crown Lease at the present time, and consider it as still being subject to her claims in trust. That makes no sense to me. The Lease expired; it no longer exists. Accordingly, the defendant has no legal or beneficial interest to which a trust of any kind might apply.

[66] As to the Guide/Outfitters Licence, the defendant takes the position that the plaintiff had nothing to do with him obtaining the Licence, and she is not entitled to an interest in it.

[67] While the evidence on this point was not clear, as I understand it, the defendant took over the operation of the guide/outfitting business in December, 1993 when his father had to leave Brem River because of his failing health. In April 1994, the defendant completed the necessary qualifications and received his own licence, the Guide/Outfitter Licence in issue. That non-transferable Licence was renewable annually, and I presume that has been done.

[68] The only evidence as to the value of the Licence was that of the defendant himself, who estimated its current value at between $50,000.00 and $100,000.00.

[69] I find no evidence whatsoever to support the existence of an express or a resulting trust. In fact, during argument plaintiff's counsel did not pursue either of those forms of relief. Rather, he based the plaintiff's claim to an interest in the Licence solely on the footing of a constructive trust.

[70] As to that form of relief, in Peter v. Beblow [1993] 1 S.C.R. 980; (1993), 77 B.C.L.R. (2d) 1, McLachlan J. said:

...Canadian courts have adopted the equitable concept of unjust enrichment inter alia as the basis for remedying the injustice that occurs where one person makes a substantial contribution to the property of another person without compensation.

...

The basic notions are simple enough. An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment; (2) a corresponding deprivation; and (3) the absence of a juristic reason for the enrichment. These proven, the action is established and the right to claim relief is made out.

[71] While the nature and duration of the relationship between the parties is relevant, when considering the matter of unjust enrichment it does not seem to depend on whether or not the relationship was a common law one. In Ford v. Werden (1996), 78 B.C.A.C. 126 at 130, Newbury J.A. said:

But this characterization [of common law marriage] by itself does not determine that Mr. Werden was unjustly enriched. The question is whether the three necessary elements for this claim were shown -- the enrichment of Mr. Werden, a corresponding deprivation of Ms. Ford, and if so, the absence of any "juristic reason" for the enrichment: Pettkus v. Becker (1980), 19 R.F.L. (2d) 165, at 180.

[72] Also, before a constructive trust will be imposed a nexus or link must exist between the claimant's deprivation and the property in question. While the link need not always take the form of a contribution to the actual acquisition of the property, there must be a "clear proprietary relationship": Sorochan v. Sorochan [1986] 2 S.C.R. 38.

[73] In this case there are circumstances that, in my opinion, establish the required link. In April, 1993 the plaintiff financed the purchase of a boat that was used in the guiding business; in December of that year she advanced sum of $7,840.00 which enabled Mr. Voll Sr. to repay a debt owing to Joseph Wilhelm, after which, it seems, Mr. Voll Sr. transferred operation of his guide/outfitting business and the use of his licence to the defendant; and later on she made the other expenditures listed above, all of which related directly or indirectly to the defendant's business. Even though she was partly reimbursed, those expenditures, as well as her services, contributed to the acquisition and maintenance of the business and the Licence that the defendant obtained.

[74] But the question remains: does the evidence support the imposition of a constructive trust?

[75] Certainly, the first two elements, enrichment and deprivation have been established. The plaintiff's services, both "domestic" and "business", as well as her financial contributions, no doubt enriched the defendant and he received their benefit largely without compensation. To that extent, the plaintiff suffered a corresponding deprivation.

[76] Therefore, it is necessary to consider whether there is a "juristic" reason for the enrichment in the sense that it was "unjust", and whether the plaintiff had a legitimate expectation of acquiring an interest in the defendant's Licence.

[77] On the facts of this case I find there to be "juristic" reasons for the enrichment. First, the relationship was relatively short in time, particularly when the interruptions are taken into account. Second, the plaintiff did not forego the pursuit of a career and the acquisition of assets on her own account and become economically dependant on the defendant. Third, the opportunity of living in a remote area gave her what she was seeking, a chance to change her life. Fourth, apart from the two lease payments included in her monetary claim, the plaintiff enjoyed rent-free accommodation during the relationship. Fifth, the plaintiff admitted that, had she not met the defendant, she would have lived on her savings while trying to establish that new lifestyle.

[78] In short, it appears to me that each of the parties contributed to and benefited from the relationship in both financial and emotional terms. They each retained their independence, and each was free to pursue personal goals without hindrance from the other.

[79] It is also appropriate to consider whether the plaintiff had a reasonable expectation of receiving an interest in the Licence, and whether the defendant was, or ought to have been, cognizant of that expectation: Sorochan v. Sorochan (supra) at pp. 52-53. On the evidence, I find that the plaintiff had no such expectation, nor did the defendant ever consider giving such an interest to her.

[80] All of these factors mitigate against the imposition of a constructive trust, and the plaintiff's application for a declaration to that effect is dismissed.

[81] Earlier I discussed my reasons for concluding that the defendant remains indebted to the plaintiff in the aggregate amount of $16,000.00. She is entitled to judgment for that amount.

[82] Her claim for quantum meruit damages is dismissed.

[83] As I mentioned earlier, the plaintiff left items of furniture behind when she left the Foster Point cabin. The defendant made it clear that he does not want to retain them so, if the plaintiff wishes to recover them, I expect that arrangements can and will be made to achieve that.

[84] Success has been divided, and in all the circumstances I find it appropriate that the parties bear their own costs.