[1] The appellant, Elbee Development Corp. ("Elbee"), appeals a decision of the Provincial Court judge awarding judgment in the amount of $5,769.44 in favour of the respondent, A & D Masonry Ltd. ("A & D").

[2] The action arises from a contract between A & D and Gold Span Contracting Inc. ("Gold") under which A & D agreed to apply stucco to two homes being constructed by Gold on properties owned by Elbee. After completing the stucco to the second home, A & D, on October 31, 1997, invoiced Gold for the sum of $5,769.44. When Gold failed to pay, A & D commenced an action against both Gold and Elbee, obtaining default judgment against Gold and, following a hearing, judgment on June 24, 1999, against Elbee, which the learned Provincial Court judge held to be owing based on the claim that Elbee had been unjustly enriched as a result of the work A & D performed for Gold on Elbee's property.

[3] Under a contract between Gold and Elbee, Gold agreed to purchase the property and to build a home to plans and specifications approved by Elbee with mortgage financing arranged by Elbee with either a financial institution or a private lender. The contract provided that invoices in connection with the construction would be approved by Elbee and payments be made jointly by Elbee and A & D, with title to the property passing to Gold only after Elbee had been paid in full. In the Agreed Statement of Facts, the parties acknowledge that A & D did not have any direct or indirect dealings, conversations or communications with Elbee until after A & D's contract with Gold had been completed. Also A & D did not know that Elbee owned the property until after the stucco work was finished.

[4] The learned Provincial Court judge relied upon the Court of Appeal decision in Atlas Cabinets and Furniture Ltd. v. National Trust Co., [1990] B.C.J. No. 719, a leading B.C. case addressing unjust enrichment in commercial cases. He concluded from that decision and others the basis upon which he awarded A & D compensation for the work and labour it performed, finding that Elbee had been unjustly enriched.

[5] Lambert J.A. in Atlas referred to the three circumstances referred to by Dickson J. in Pettkus v. Bekker, [1980] 2 S.C.R. 834, as giving rise to the entitlement to a remedy for unjust enrichment, namely:

(1) Enrichment to the defendant;
(2) A corresponding deprivation of the plaintiff; and
(3) The absence of any juristic reason for the enrichment.

[6] Mr. Justice Lambert noted at p. 7 that Pettkus dealt with a domestic relationship in which equality of the parties to the relationship should normally be the standard of fairness, but he found that in a business relationship, honest dealings, not equal dealing, should set the standard of fairness and that in a commercial relationship, the key is to focus on the "unjust" element of "unjust enrichment". He stated:

[7] Lambert J.A. addressed the facts determined by the trial judge in finding the defendant, National Trust, liable under unjust enrichment. In that case, Atlas and other subcontractors, recognizing that the contractor was in financial difficulties, obtained assurances from National Trust, which was financing the project, that they would receive payment from the mortgage proceeds which had not yet been advanced and as a result of those assurances they continued working on the project. National Trust subsequently foreclosed on its mortgage, leaving the subcontractors unpaid. Lambert J.A. noted that the "crucial point in relation to the application of the three core factors underlying unjust enrichment" was the trial judge's finding that National Trust's assurances led Atlas and the other subcontractors to continue working on the project.

[8] In his judgment at p. 7, Lambert J.A. refers to business relationships which give rise to the remedy of unjust enrichment. In the present case, there is no relationship, business or otherwise, between A & D and Elbee. A & D had no dealings or knowledge of Elbee until after it had completed its contract for Gold, unlike the situation in Atlas where the subcontractor approached and obtained the assurances from National Trust before continuing the work. I conclude it was the assurances given by National Trust which were the underlying factor upon which the Court of Appeal found a business relationship and subsequent unjust enrichment in Atlas.

[9] In the instant case, there were no assurances or reliance by A & D upon Elbee which might have led to the finding of a business relationship between the parties from which the remedy of unjust enrichment might be based. There lacks support in the evidence to conclude that Elbee was enriched, although I do conclude that there was a deprivation of A & D, although the deprivation did not necessarily arise from the apparent enrichment to Elbee, but from the contract between A & D with Gold. I further conclude that the juristic reason for the enrichment, if it occurred, came from the contract between Elbee and Gold.

[10] A & D contracted with Gold and its remedy lay against Gold or against the property under the Builders Lien Act, R.S.B.C. 1997, c. 45, not in personne against Elbee, which, although the owner of the property upon which A & D worked, did not involve itself in the relationship between A & D and Gold. It was, of course, available for A & D to determine at any time the ownership of the property and exercise its lien rights against Elbee's property if it had acted within the time restraints imposed by the Builders Lien Act. The legislature, through the Builders Lien Act, provided a remedy for subcontractors such as A & D, recognizing the difficulties for subcontractors to recover where the contractor is unable to pay for the subcontractors' labour and material. To extend the remedy of unjust enrichment in circumstances such as are found involving A & D and Elbee would be an unwarranted intrusion into the construction field.

[11] I conclude that A & D has failed to establish the basis of unjust enrichment and the appeal will be allowed with Elbee to receive costs as allowed by the Provincial Court as well as the costs of this appeal at scale 3. There will be an order that the monies paid into court be paid out to Elbee.

"Blair J."