Martin v. Goes, 2019 BCPC 355

Citation: Martin v. Goes 2019 BCPC 355 Date: 20191206 File No: C9541 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: GILLIAN MARTIN CLAIMANT AND: SANDRA GOES DEFENDANT MICHAEL D. JONES THIRD PARTY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Claimant: Deryck P. Harry Appearing on her own behalf: Sandra Goes (Defendant) Appearing on his own behalf: Michael D. Jones (Third Party) Place of Hearing: Chilliwack , B.C.

Date of Hearing: August 16, 2019; October 22, 2019 Date of Judgment: December 6, 2019 INTRODUCTION [ 1 ] This claim arises out of a relationship that had soured between the Claimant, Gillian Martin, and the Defendant, Sandra Goes, due to the breakdown of the relationship between the Defendant and the Third Party, Michael D.

Jones. [ 2 ] The Claimant is the Third Party’s mother. [ 3 ] The Third Party and the Defendant were in a romantic relationship for a brief period, although the exact length of this relationship is at issue. [ 4 ] On October 5, 2016, the Claimant transferred $11,000 into the Defendant’s bank account (the “Advance”), which she claims was a loan to the Defendant to assist the Defendant and the Third Party to purchase a residential property located at 45295 Crescent Drive, Chilliwack, British Columbia (the “Crescent Drive Property”). [ 5 ] The Defendant denies that the Claimant made a loan to her.

She says the Advance was made to reduce the debt the Third Party had accumulated on the Defendant’s credit card, so that the Defendant could meet her bank’s financing requirements for the purchase of the Crescent Drive Property. [ 6 ] The Claimant brings this action only against the Defendant even though in her Notice of Claim and her Trial Statement, she says that she made this loan to the Defendant and the Third Party, and that they are jointly and severally liable to her.

At trial, she changed her position, and now claims that she made this loan only to the Defendant. [ 7 ] The Claimant says she demanded the Defendant to repay the loan, but the Defendant failed to do so, thereby committing a breach of the loan contract. [ 8 ] As an alternative to the breach of contract argument, the Claimant bases her claim in unjust enrichment, alleging that the Defendant has been unjustly enriched by the Advance. [ 9 ] The Claimant seeks to recover the Advance, plus interest and costs. [ 10 ] The Defendant says that she was not unjustly enriched, but rather it was the Third Party who was unjustly enriched by the Advance, as it was applied for his benefit to reduce his debt. [ 11 ] The Defendant filed a Third-Party Notice on November 9, 2018, joining the Third Party to this action. [ 12 ] The Third Party did not file his Reply until August 8, 2019, nine months after the filing of the Third-Party Notice.

In his Reply, he states “[f]unds were borrowed for the home to which [the Defendant] is in sole possession.” [ 13 ] On the first day of the trial, the Third Party sought an adjournment of the trial, stating that he wanted to get legal counsel. After hearing submissions from all parties, I declined to grant the adjournment. The Third Party had more than nine months to seek legal counsel, but he did nothing. Furthermore, the Defendant was anxious to proceed with the trial, as the trial was postponed from an earlier date (in March 2019) due to lack of court time. BACKGROUND [ 14 ] The Claimant is married to Mr.

Jeffrey Martin. [ 15 ] Mr. Martin is a businessman who works in the construction industry. [ 16 ] The Defendant is a peace officer. She is a single parent with two young children.

She is divorced from her former spouse. [ 17 ] The Third Party is also a businessman, involved in the construction industry. [ 18 ] The Defendant met the Third Party in August 2014, when she hired him to do a small drywall job in her home in Chilliwack, British Columbia. [ 19 ] Due to her marital situation at that time, she was living with her friend, and the Third Party was living in a small coach house in a nearby neighbourhood. [ 20 ] The Defendant and the Third Party started dating sometime in October 2014. [ 21 ] In January 2015, the Third Party ran into difficulties with his landlord, and was ordered to vacate the coach house he was residing in.

The bailiffs became involved in this process. [ 22 ] By January 2015, the Claimant had found a two-bedroom townhouse on Sylvan Drive, in Chilliwack, British Columbia (the “Townhouse”), and offered to have the Third Party move in with her for a short period until he found his own place. [ 23 ] The Third Party moved into the Townhouse in February 2015. [ 24 ] The Defendant and the Third Party resided at the Townhouse until they moved to the Crescent Drive Property upon its purchase at the end of October 2016.

[ 25 ] The Defendant and the Third Party lived together at the Crescent Drive Property, until their relationship ended on January 4, 2017, with criminal charges laid against the Third Party for assault on, and uttering threats to, the Defendant, in front of her children. [ 26 ] On January 14, 2019, on the uttering threats charges, the Third Party received a suspended sentence and was placed on an eighteen-month probation with various conditions, including protective conditions towards the Defendant and her children. [ 27 ] During the brief relationship between the Defendant and the Third Party, the Claimant, Mr.

Martin, and their extended family treated the Defendant and her two children as family. ISSUES [ 28 ] The issues to be determined in this case are as follows:

a) Was there a valid and enforceable loan contract between the Claimant and the Defendant with respect to the Advance?

b) If the Claimant did not make a loan to the Defendant, was the Defendant unjustly enriched by the Advance?

c) If the Defendant was not unjustly enriched by the Advance, was the Third Party unjustly enriched by it?

d) If there was unjust enrichment, what is the appropriate remedy? ANALYSIS AND DECISION Evidence [ 29 ] The Claimant testified, and Mr. Martin testified on behalf of the Claimant. The Defendant and the Third Party also testified. Various documents were entered into evidence. The legal framework [ 30 ] The Claimant and the Defendant submitted numerous authorities with respect to the legal issues at hand. The Third Party did not submit any authorities.

I have reviewed and considered all of the authorities submitted, but I will only refer to those relevant to my discussion here. [ 31 ] The Court in Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc. , 2009 BCSC 1303 , provides a comprehensive discussion of several fundamental principles of contract law. I will set out those principles relevant to the issues before me and apply them to the facts I find. [321] Courts strive to uphold contractual obligations solemnly and freely undertaken.

They do not, however, impose them upon parties who have not reached agreement on all essential terms: . . . [322] For parties to be bound in a contractual relationship there must be a manifest meeting of the minds. They must express themselves outwardly in a manner that indicates both an intention to be bound and reasonably certain mutually agreed terms: . . . [323] These fundamental principles of contract law enable commercial life to operate in a fair, predictable and efficient manner. They apply whether the purported contract in question is concluded in writing, orally, by conduct, or by a combination thereof.

The key question in all cases is whether an agreement has been reached on all essential terms, regardless of its form : . . . [324] The test for determining the intention to create legal relations is objective. It is explained by G.H.L. Fridman in The Law of Contract , 5th ed. (Toronto: Thomson Carswell, 2006) as follows: Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract.

The law is not concerned with the parties’ intentions but with their manifested intentions. It is not whether or not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion of the agreement; it is whether a reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms. [325] The objective test serves the main purpose of contract law: to protect reasonable expectations created by promises.

Accordingly, “the test of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on an enquiry into the actual state of mind of the promisor, but on how the promisor’s conduct would strike a reasonable person in the position of the promisee”: . . . [326] If the parties have reduced the alleged agreement to writing, the starting point for analysis is the wording of the document itself.

The words used should be given their plain, literal and ordinary meaning, unless absurdity would result, and the contract should be construed in context and as a whole: . . . [327] If the parties’ intent is not clear from the words of a written agreement, extrinsic evidence may be considered to assist in interpreting the arrangement or to explain, without contradicting, the language of the contract.

As a last resort, the principle of contra proferentem may be applied to construe an ambiguity against the contract’s drafter if the non-drafting party had no meaningful opportunity to negotiate its terms: . . . [328] The

interpretation of oral contracts turns on the same essential principles: . . . If the alleged agreement has not been reduced to writing, the Court must consider what the parties said and did and assess objectively whether, in context, their words and actions establish an intention to be bound : . . . The genesis and aim of the transaction is an aspect of the relevant context for consideration: . . . The credibility of witnesses will be particularly important and differing versions of events will increase the difficulty of establishing that

an enforceable bargain was made: . . . . . . [334] In order to determine whether a binding contract was created the Court may consider both the parties’ conduct leading up to and following conclusion of the alleged agreement. . . . Was there a valid and enforceable loan contract between the Claimant and the Defendant with respect to the Advance? [ 32 ] There is no dispute that the Claimant withdrew $11,000 from her line of credit and deposited it into the Defendant’s bank account on October 5, 2016.

The dispute is whether this Advance was intended to be a loan from the Claimant to the Defendant. [ 33 ] The key question in this analysis is whether an objective reasonable bystander would understand that the Claimant and the Defendant intended to contract with each other for a loan of $11,000, and the terms of such loan. [ 34 ] Before discussing this question, I will first set out the circumstances surrounding the Advance.

Circumstances surrounding the Advance [ 35 ] The Claimant testified that the Third Party called her sometime in early October 2016 and said that he and the Defendant wanted to speak with her and Mr.

Martin. [ 36 ] She said the Defendant and the Third Party came to her residence the evening before the date of the Advance, and they all sat at the dining table to discuss the issue. [ 37 ] The witnesses’ evidence regarding the details of this discussion varies in some respects. [ 38 ] The Claimant’s evidence was that the Defendant and the Third Party asked to borrow $11,000 to assist them in purchasing the Crescent Drive Property. The Claimant said the Defendant did more of the talking in asking for the $11,000.

She said the Defendant told them that she had lost out on a number of properties in the past, and that she was eager to purchase the Crescent Drive Property. The Claimant told the Defendant and the Third Party that she and Mr. Martin would think about their request, and would let them know what they decide. She said the parties did not discuss interest or any other terms that evening. [ 39 ] Mr.

Martin’s evidence was similar to the Claimant’s evidence, except that he was very specific that the reason for the $11,000 request was “solely” for the purpose of “aiding in their deposit” for the purchase of the Crescent Drive Property.

He said the deposit was required “to meet the bank’s requirements.” He added that it was the Defendant who did most of the talking, and that she was excited and anxious about purchasing the Crescent Drive Property, as she had lost out on a number of other properties in bidding wars. [ 40 ] The Third Party’s evidence was that he and the Defendant approached his family, with the intent to borrow $11,000 for the purchase of the Crescent Drive Property, and in particular “to meet the obligations for the mortgage.” Similar to Mr.

Martin and the Claimant, the Third Party also said that the Defendant did most of the talking at that meeting. The Third Party said the Defendant was desperate, “as she had already made obligations for the purchase of the home.” [ 41 ] The Defendant said that she could not recall the exact details of the discussion on October 4, 2016.

However, she does not deny that she and the Third Party were at the Martins’ residence; they talked about the fact that she had lost out on other properties due to the heated real estate market at the time; and she wanted to buy the Crescent Drive Property because she was determined to buy a home for herself and her children.

However, she denies that she asked for a loan of $11,000 from the Martins to put towards the deposit for the Crescent Drive Property. [ 42 ] She said by the time this meeting took place on October 4, 2016, she had already put down a $10,000 deposit towards the purchase of the Crescent Drive Property (which the Third Party confirmed in his testimony), and she had received a large settlement from her divorce proceedings; therefore, there was no need for her to ask for a loan for the deposit.

She said, even if she needed funds for the deposit, she would have gone to her own family, and would have never gone to the Martins to ask for a loan. [ 43 ] I accept the Defendant’s evidence. I find that on October 4, 2016, when the Claimant, Mr.

Martin, the Defendant, and the Third Party gathered at the Martins’ residence, they discussed the prospect of the purchase of the Crescent Drive Property, and the difficulty the Defendant had in securing a property due to bidding wars, but did not specifically discuss any loan to the Defendant, or the terms of it, for the purpose of assisting the Defendant with the deposit for the Crescent Drive Property. [ 44 ] It is not clear whether the parties discussed the financing requirements of the Defendant’s bank at the October 4, 2016 meeting.

The Defendant said she only has a vague memory of that meeting, but the evidence of the Claimant, Mr. Martin, and the Third Party was firm and eerily similar to each other. As I will discuss later, I have some concerns about the reliability of their evidence, as they appeared to be tailoring their evidence to support each other. [ 45 ] Then on October 5, 2016, the following text message exchange took place: The Claimant wrote: Talked to Jeff so will help you out for cost for lawyers due Friday. I am going to use my credit line.

As you will likely need certified cheque for lawyer I could have one made out to the lawyer then you’ll have it for your appointment. Need to know lawyer name and to confirm amount. . . . PS any interest I’m charged I will add to total. . . . The Defendant replied:

Ok thank you both for the help. The cheque would be to me. I have already paid the following, 10,000 down payment 1500 notary fee Interest for the home 28,000 remaining amount for downpayment . . . The Claimant further wrote: Sandra will make deposit this afternoon. . . . PS I’ll be be [sic] excited when the money comes in too Will be glad when financing for house is completed and your [sic] not homeless! Has the townhouse been sold yet? [46] The Defendant and the Claimant exchanged a few more text messages on October 5, 2016 about instructions for depositing the$11,000.

The deposit was made that day. [47] The Third Party testified that he was not aware of this text message exchange between the Claimant and the Defendant, as hewas away that week, but that he later learned about it through the Defendant. As a result, he is taking the position that he is not a party tothe alleged loan contract. [48] I will now turn to the question I posed earlier; that is, whether an objective reasonable bystander would understand that theClaimant and the Defendant intended to contract with each other for a loan of $11,000, and the terms of such loan.

Intention to create legal relations [49] The Claimant argues that an objective reasonable bystander would view the text messages between the Claimant and theDefendant on October 5, 2016 as an intention to contract on the terms stated in the messages, namely: the Claimant shall provide theDefendant with a loan of $11,000, and in consideration, the Defendant shall repay the Claimant the $11,000 and shall pay any interestthat the Claimant is charged for borrowing the $11,000 from her line of credit. [50] I disagree with this argument, as the evidence indicates that there is more to the context surrounding the Advance than only theOctober 5, 2016 text messages between the Claimant and the Defendant. [51] I must consider what the parties said and did, and assess objectively whether, in context, their words and actions establish anintention to be bound.

In this process, I may consider both the parties’ conduct leading up to and following conclusion of the allegedcontract. As the court noted in Le Soleil, at para. 328, the genesis and aim of the transaction is an aspect of the relevant context forconsideration. [52] In this assessment, the credibility of the witnesses is critical, as that will impact if, and to what extent, I accept or reject theirevidence. [53] I will pause at this juncture to comment on the credibility of the three parties and Mr. Martin, and the reliability of theirevidence.

Credibility of witnesses [54] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of awitness and the accuracy of the evidence that the witness provides. The real test of the truth of the story of a witness must be its harmonywith the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable in that placeand in those conditions: Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (C.A.) at 357; Bradshaw v. Stenner, 2010BCSC 1398 at para. 186, aff’d. 2012 BCCA 296.

The trier of fact may believe a witness’ testimony in whole, in part, or not at all (R. v.R. (D.), (SCC), [1996] 2 S.C.R. 291 at para. 93), and it may accord different weight to different parts of a witness’evidence. [55] On the whole, I found the Defendant to be a forthright, genuine and thoughtful witness. She truthfully acknowledged that theThird Party was very good with her children and her children adored him, and that the Claimant and her extended family treated her andher children as family, and assisted her with some aspects of the renovation of the Crescent Drive Property upon its purchase.

Herevidence was consistent and was corroborated by the extensive documentary evidence. I have no hesitation in accepting her evidence. [56] I cannot say the same of the Claimant, Mr. Martin, or the Third Party. [57] The Claimant and Mr. Martin appeared to tailor their evidence in favour of the Third Party. I am unable to accept all of theirevidence. Although their evidence was brief, parts of it, particularly that of Mr. Martin, appeared to be exaggerated, and was alsoinconsistent with the Defendant’s evidence. The Claimant’s evidence was internally inconsistent in some respects.

I will refer to some ofthese inconsistencies in my discussion below. [58] I found the Third Party to be manipulative and evasive, and, as a result, unreliable. He appeared to be skilled at distracting theDefendant from her line of questioning by repeatedly stating that he does not understand her questions and asking her to repeat herquestions. Any reasonable person would have understood the questions the Defendant was asking, as they were by no meanscomplicated or convoluted.

Finally, I had to interject and caution the Third Party to listen carefully and answer the questions put to him.He seemed to want to establish certain facts that may be beneficial to him in other legal proceedings he had with the Defendant. Forexample, he repeatedly said that he was in a spousal relationship with the Defendant for a period of two years. I will say more about thislater in my reasons. [59] In assessing the evidence of the Claimant, Mr. Martin, and the Third Party as a whole, I have some concerns that they were

acting in concert. [ 60 ] Where there were inconsistencies between the evidence of the other three witnesses and the Defendant, I prefer to accept the Defendant’s evidence. [ 61 ] The following are a few examples of the internal and external inconsistencies, and the implausibility of some of the evidence:

a) Mr. Martin said he knew the Defendant in the Fall of 2014 as the Third Party’s girlfriend and fiancé. The Defendant, in her cross-examination of Mr. Martin, established that she was never the Third Party’s fiancé.

b) First Mr. Martin said the Defendant and the Third Party asked for $11,000 “to put down as a deposit for the house to meet the bank’s requirements”, but later said that there was no discussion of the bank’s requirements.

c) The Claimant and Mr. Martin first said they did not know about the Third Party’s business or financial affairs, but later admitted that they were aware that the Third Party had a lien against a school in Merritt for unpaid funds from a former client of the Third Party, and that the Claimant’s brother and his wife had a financial dispute with the Third Party regarding some work they had asked the Third Party to do for them. They also knew about the Third Party’s troubles with his former landlord and the bailiff’s involvement in that incident.

d) When the Defendant questioned the Claimant about the Claimant’s “PS” note, in one of her text messages to the Defendant on October 5, 2016, which read: “I’ll be excited when the money comes in too”, the Claimant explained that the money she was referring to was the Advance. This explanation simply does not make sense. It is more plausible, as the Defendant was alluding to, that the money the Claimant was referring to was the money the Third Party was expecting to receive from his former client, in respect of which he had filed a lien on the school property.

e) When the Defendant questioned the Claimant as to why the Claimant waited until May 29, 2018 (which was almost 17 months after the end of the Defendant’s relationship with the Third Party) to ask for repayment of the alleged loan, the Claimant said she was unhappy with the Defendant’s actions when the Claimant tried to remove the Third Party’s belongings from the Defendant’s residence after their break-up in January 2017, and that by the time she received the Defendant’s text message on May 29, 2018, her time limit for this small claims action was coming up, and that is why she asked for the return of the $11,000.

This again does not make sense. Rather than asking for the return of the $11,000 and accumulated interest at the time she was unhappy with the Defendant (in January 2017), the Claimant continued to pay interest on the Claimant’s line of credit until November 1, 2018, when she paid off the $11,000 and accumulated interest. That was after she filed her Notice of Claim in this action on July 20, 2018. Furthermore, Mr. Martin said he and the Claimant were not rich, and they could not afford to give away money so that the Defendant and the Third Party could get into a new home.

He also said that they were not in the habit of lending money. That being the case, if the Claimant had truly loaned the $11,000 to the Defendant, why did she not ask for its repayment much sooner?

f) First, Mr. Martin testified that he co-signed a truck lease with the Third Party because the Third Party did not have good credit, but later under cross-examination said that he did not know that the Third Party could not get credit. However, the Third Party said that the reason Mr. Martin co-signed the truck lease was because Mr. Martin could get a better rate.

g) Mr. Martin justified the Third Party’s use of his credit card by stating that he would go with the Third Party and make the Third Party’s purchases on Mr. Martin’s credit card to get the rewards points. However, the Third Party said that he used Mr. Martin’s credit card only once, which is contrary to the Defendant’s evidence that he used it to make purchases for his own business.

h) Mr. Martin’s justification is also contrary to the overall evidence that indicates that the Third Party had little or no credit; he had all sorts of financial troubles, including with his former landlord and clients, and his family members; and he was living with the Defendant, taking full advantage of her financial resources. No doubt, he was reliant on other people’s credit.

i) Mr. Martin admitted that after the relationship between the Third Party and the Defendant ended in January 2017, he and the Claimant supported the Third Party financially, but not before that. This is contrary to the Third Party’s evidence that his family supported him financially before and after the alleged loan incident on October 5, 2016. [ 62 ] The evidence indicates that the genesis and aim of the Advance was, in some way, related to the purchase of the Crescent Drive Property. However, there are some discrepancies in the evidence of the various witnesses in this respect. For example:

a) Claimant: In her October 5, 2016 text message to the Defendant, the Claimant states that she is willing to help out the Defendant for “the cost [of] lawyers due Friday”, to which the Defendant responds that she has already paid $10,000 down payment and $1,500 notary fee. The Claimant’s message begs the question as to why she thought she was helping out for the cost of the lawyers.

There is no direct evidence to shed any light on this question, other than the Defendant’s evidence that she was under the impression that the Third Party had spoken with the Claimant about the Advance, although the Third Party outright denied having spoken with the Claimant separately. It is possible that the Third Party told one thing to the Claimant and something else to the Defendant, and disappeared from the scene, leaving the two women to sort out the Advance. I do not accept the Third Party’s outright denial that he did not speak with the Claimant about why the Advance was needed.

Obviously, there was no meeting of minds of the Claimant and the Defendant as to why the Advance was needed and made.

b) Mr. Martin: In his testimony, Mr. Martin first said that the Defendant and the Third Party requested the Advance to “put down as a deposit for the house to meet the bank’s requirements” and then said it was “solely” to “aid in their deposit.”

c) Third Party: In his testimony, the Third Party said he and the Defendant went to the Martins’ residence to borrow money

because the Defendant told him that they needed another $11,000 “to meet the obligations for the mortgage.”

d) Defendant: The Defendant was very clear in her evidence that she believed that the reason the Claimant was making the Advance was to pay down the debt the Third Party had accumulated on her credit card, so that the Defendant could meet her bank’s financing requirements for the purchase of the Crescent Drive Property. [ 63 ] In assessing all of the evidence, I am satisfied that the genesis and aim of the Advance was to allow the Defendant to meet her bank’s financing requirements for the purchase of the Crescent Drive Property. [ 64 ] However, did the Claimant and the Defendant intend to create a loan contract with respect to the Advance?

The Defendant says, absolutely not. [ 65 ] To understand why the Defendant says she did not intend to create a loan contract with the Claimant, requires delving into the nature of the relationship and the agreements the Defendant claims she had with the Third Party. The following is a

summary of the Defendant’s evidence (supplemented by the documentary evidence) in this respect, and my comments and findings of fact:

a) The Defendant had a difficult and acrimonious separation and divorce from her former spouse.

b) During this time, a friend of hers introduced her to the Third Party.

c) Initially, the Third Party was good to her and her two children. Her children adored him, and ended up calling him “dad”.

d) The Third Party told her that he wanted to care for her and her children. The Defendant believed him at the time, although his assurances later turned out to be untrue.

e) While they were dating, the Third Party was living in a friend’s coach house, rent-free, in exchange for doing some work for that friend. However, by January 2015, the Third Party had run into difficulties with his landlord, and was forced out of his home.

f) The Defendant agreed to have the Third Party live with her at the Townhouse on a temporary basis for about a month. She did this to be kind to the Third Party in his time of need, similar to the kindness that her friend showed her by taking her in when she separated from her former spouse. However, the one-month stay turned out to be much longer.

g) At that time, the Third Party was working on a construction project for Mr. Martin’s business in Abbotsford, and was attempting to start his own construction business. The Third Party told the Defendant that he had a successful business in Ontario before he moved out to British Columbia, and that he made “exorbitant” amounts of money in Ontario. She believed him, and wanted to support him in his endeavours. However, the Defendant later learned that he only made about $35,000 in Ontario.

h) The Third Party used Mr. Martin’s credit card to purchase materials for his own business.

i) The Third Party told the Defendant that it was embarrassing for him to use Mr. Martin’s credit card to make his purchases. Because the Defendant wanted to support the Third Party and his business, she agreed to have the Third Party use her credit card for his transactions. They verbally agreed that the Third Party would first pay off the transactions he makes on the Defendant’s credit card (as the interest on that credit card at that time was 19.9%), and as consideration for the Third Party’s use of the Defendant’s credit card, the Defendant would keep the rewards points earned on the Third Party’s transactions.

j) From February 2015, the Third Party started placing his transactions on the Defendant’s credit card.

k) By April 2015, the Defendant added the Third Party as an additional authorized user on her credit card, with a separate credit card in his name.

l) The Third Party’s transactions on the Defendant’s credit card gradually grew larger and larger.

m) I note from the Defendant’s credit card statements in evidence, the Third Party’s transactions comprised not only his business expenditures, but also a large number of his personal expenditures.

n) According to the agreement the Defendant had with the Third Party, she used the rewards points earned on the Third Party’s transactions, although there was an incident when the Third Party demanded that he be able to use the points for fuel for his truck. The Defendant reluctantly made this exception, as the Third Party became very angry with her when she resisted his request.

o) In light of the overwhelming evidence before me, I find that the Defendant and the Third Party entered into a valid agreement, be it verbal, whereby the Third Party would use the Defendant’s credit card for his transactions, but would first pay off his transactions before his other expenses, and in consideration for the use of her credit card, the Defendant would keep the rewards points earned on the Third Party’s transactions.

p) The following is a synopsis of the balances outstanding on the Defendant’s credit card and the credit limit on that card between March 2016 (when the Defendant received her divorce settlement) and January 2017 (when the relationship between the Defendant and the Third Party ended). This, of course, includes the period that the Defendant was actively looking to buy a home for herself and her children, which she eventually bought at the end of October 2016. No. Period The Defendant’s Transactions The Third Party’s Transactions Total Outstanding on Credit Card Credit Limit

1. February 2015 to March 2016 The Third Party had significant transactions during this period As at Feb. 3, 2015 (before Third Party’s use of Defendant’s credit card): $664.54 As at Mar. 3, 2016: $16,538.68 As at Feb. 3, 2015: $5,000 As at Mar. 3, 2016: $15,000 2. March 4, 2016 to April 4, 2016 $276.31 $3,379.35 $20,194.34 $20,000 3. April 5, 2016 to May 3, 2016 $619.02 $10,792.99 $8,104.85 $20,000 4. May 4, 2016 to June 3, 2016 $1,699.97 $14,484.52 $10,048.52 $20,000 5. June 4, 2016 to July 4, 2016 $461.49 $11,501.39 $21,619.56 $20,000 6. July 5, 2016 to Aug. 3, 2016 $3,313.12 $9,509.53 $22,098.74 $20,000 7.

August 4, 2016 to September 6, 2016 $801.78 $4,547.60 $22,079.61 $20,000 8. September 7, 2016 to October 3, 2016 $133.37 $2,946.63 $13,899.11 $15,000 9. October 4, 2016 to November 3, 2016 $349.93 $3,944.39 $7,829.32 $8,000 10. November 4, 2016 to December 5, 2016 $752.53 $1,458.65 $7,312.54 $8,000 11. December 6, 2016 to January 3, 2017 $172.82 $894.04 $8,129.40 $8,000 12. January 4, 2017 to February 3, 2017 $5,000

q) Both the Defendant and the Third Party, from time to time, made various payments towards the outstanding balance on the Defendant’s credit card. At times, the Third Party would make large payments.

r) The Defendant believed that the Third Party was doing well in his business. She trusted him, and to facilitate the Third Party’s increasing transactions, the Defendant agreed to increase the credit limit on her credit card. The credit limit was gradually increased from $5,000 in February 2015 to $20,000 by April 2016.

s) At the Third Party’s suggestion, from time to time, the Defendant drew funds from her line of credit to make payments on the increasing balances on her credit card. The credit limit on the Defendant’s line of credit was $10,000 until December 15, 2016.

t) On April 5, 2016, the Defendant paid $20,000 out of her divorce settlement to bring down her credit card balance.

u) The Third Party was experiencing difficulties in his business: his business was not doing well; he had receivables; he had filed a lien against a school in Merritt that he had done some work for; and he was facing a number of lawsuits from his former clients, including the Claimant’s brother and his wife, who contracted the Third Party to do some work for them.

v) Sometime between July 5, 2016 and August 3, 2016, when the Defendant’s credit card balance was at a peak of $22,098.74, the Defendant and the Third Party had a conversation about actively reducing the outstanding balance, the better part of which was the Third Party’s debt. At that time, the Third Party told the Defendant that he would talk to his mother (the Claimant) about her supporting him and his business financially.

w) The Third Party’s increasing debt on the Defendant’s credit card was causing a lot of stress in their relationship.

x) Since the Defendant received a sizeable divorce settlement, she was keen on using those funds to purchase a home for herself and her children.

y) During the Summer and early Fall of 2016, the Defendant, together with the Third Party, started looking for a house to purchase.

z) Both the Defendant and the Third Party approached the Defendant’s bank to see if they could qualify for financing for the purchase of a property. The bank told them that the Third Party would not qualify, as he had no credit, and they could not verify the income from his business, as he had not filed any income tax returns for a number of years (since about 2013).

Furthermore, the bank’s mortgage specialist who was working with them at the time told the Defendant that she needed to pay down the balance on her credit card and reduce its limit to $8,000 to keep her total debt servicing within the bank’s financing requirements. aa) The Defendant made it clear to the Third Party that if he wanted to be a part owner of any property she was about to purchase, he had to contribute an equal amount towards its purchase. bb) Since the Third Party did not have the financial means to contribute any funds towards the purchase of a property, the Defendant was clear that any property she purchased would be only for her and her children.

Furthermore, the Third Party assured her that he would never take away a home from a single mother. The Defendant believed him at the time. cc) After a number of failed attempts at purchasing a property, the Defendant made an offer on the Crescent Drive Property, which was accepted. She paid an initial deposit of $10,000, with a further deposit of $28,000 to be paid upon subject removal. dd) By this time, the Defendant was under a lot of pressure to complete the purchase of the Crescent Drive Property, and not risk losing the $10,000 she had put down.

The purchase of the Crescent Drive Property was to complete on October 31, 2016. Therefore, she and the Third Party again discussed the need to reduce the balance on her credit card to the $8,000 level the bank required, so that she could get the mortgage and complete the purchase. ee) The Third Party told the Defendant that he would speak with his mother and get some money to reduce the Defendant’s credit card balance to comply with the bank’s requirements.

The Third Party acknowledged to the Defendant that the balance on the Defendant’s credit card, accumulated from his transactions, is his debt, and that he would repay his mother directly. He also told the Defendant that his mother was “skittish” about financial matters, and that the Defendant should not say anything and just accept anything his mother and Mr. Martin say.

The Defendant agreed with the Third Party, as she was keen to have her credit card balance reduced to the level required by the bank. ff) Therefore, when the Claimant made the Advance, the Defendant was under the impression that the Third Party had spoken with the Claimant (as he had promised) and that is why she was transferring the funds to reduce the Third Party’s debt.

Since the Third Party had instructed the Defendant to accept whatever the Claimant said, the Defendant did not question the Claimant, but simply said “thank you both for the help” in her October 5, 2016 text message to the Claimant. gg) The Defendant did not question the Claimant’s PS note in the Claimant’s text message to add interest, because in the Defendant’s mind, the Claimant was helping her son pay down his debt, and the Defendant was not privy to what discussions the Claimant and the Third Party had about this debt; therefore, the Defendant assumed that the Third Party would pay any interest on the $11,000, as it was his debt. hh) The Third Party’s evidence was that he did not tell the Defendant that he would repay his mother directly.

I reject his evidence. In light of the Claimant’s evidence, it is possible that the Third Party never told the Claimant that he would repay her directly. ii) However, on a balance of probabilities, I find as follows: i. the Third Party acknowledged to the Defendant that the balance on the Defendant’s credit card, accumulated from his transactions, is his debt and that he would repay the Advance directly to the Claimant; ii. the Third Party told the Defendant not to say anything to the Claimant and just accept anything she and Mr.

Martin say, as the Claimant is “skittish” about financial matters; and iii. the Third Party manipulated the Defendant and the Claimant to facilitate the Advance for his own benefit. jj) The Defendant then applied the Advance, as follows: i. $7,293.76 to reduce her credit card balance on October 5, 2016; ii. $2,000.00 to the Third Party, by e-transfer on October 5, 2016; and iii. $1,000.00 to reduce her credit card balance on October 6, 2016. kk) Then on October 23, 2016, the Third Party made a $2,000 payment to the Defendant’s credit card to bring the balance below $8,000, as required by the Defendant’s bank. ll) As can be seen from the table above, at Line 9 (that I have highlighted), the Defendant’s credit card balance, after applying these funds, was brought down to $7,829.32, and the credit card limit was reduced to $8,000, as required by the bank to approve the financing for the purchase of the Crescent Drive Property. mm) The purchase of the Crescent Drive Property completed on October 31, 2019 in the name of the Defendant alone. [ 66 ] In addition to the above evidence, the Defendant says that she never had any discussion with the Claimant or Mr.

Martin about

any loan, including terms such as the amount of the principal, the interest to be charged, or the terms of repayment, to assist her with the deposit for the Crescent Drive Property, as Mr. Martin alleges. She says she never signed any paperwork detailing the terms of any loan.

According to the agreement she had with the Third Party, it was always her understanding that the Third Party made an agreement with his mother to assist him to pay down his debt accumulated on the Defendant’s credit card, so that the Defendant can meet the bank’s requirements to secure a mortgage for the purchase of the Crescent Drive Property.

She submits that there was no loan agreement at all, verbal or otherwise, with the Claimant. [ 67 ] Furthermore, she says if there was a loan agreement, why did the Claimant not ask for any repayment until May 29, 2018, almost 17 months after the relationship between the Defendant and the Third Party had ended. In this respect, the following text messages are in evidence: May 29, 2018, text message from the Defendant to the Claimant: Hi Gillian, It’s Sandra, I just wanted to let you know I have reported Mike [the Third Party] to ICBC Fraud unit for falsifying his driver’s licence address.

I have received mail under his name from ICBC as stating that my home is his place of residence. I have given ICBC your address as the last known address. Please expect a letter from them stating as such. I would expect that my address be removed within 10 business days and his correct one be listed. May 29, 2018, text message from the Claimant to the Defendant, in response to the above message: Seriously Sandra You opened his mail. You trying to stress ME out. I’m a little angry right now! Since you emailed we would like the $11000 (a loan) I deposited into your account for the house ASAP.

Please do not contact me. [ 68 ] The Defendant kept meticulous records of all the financial dealings between herself and the Third Party, and produced mounds of records detailing the various transactions between them during the length of their relationship. I find that she was very aware of her financial dealings.

In light of that, if the Defendant had intended to get a loan from the Claimant, I conclude that she most certainly would have asked the Claimant what the interest rate was and when she had to make payments on the loan. [ 69 ] In considering and assessing all of the evidence regarding what the parties said and did surrounding the Advance, I conclude that the Claimant and the Defendant have not indicated to an objective reasonable bystander their intention to enter into a loan contract with each other.

Certainty of Terms [ 70 ] The court in Le Soleil , at para. 339, said: [339] The Court cannot enforce an apparent bargain if its terms are unclear: . . . This is so because it cannot be said that the parties came to a meeting of the minds where the terms of the alleged agreement are vague, ambiguous or incomplete: Klemke, supra . As Viscount Maughm explained in G. Scammell & Nephew Ltd. v. Ouston , [1941] A.C. 251 (H.L.) : In order to constitute a valid contract the parties must so express themselves that their meaning can be determined with a reasonable degree of certainty.

It is plain that unless this can be done it would be impossible to hold that the contracting parties had the same intention; in other words, the consensus ad idem would be a matter of mere conjecture. [ 71 ] The essential elements of a loan contract are the parties, the subject matter, the interest rate, and the terms of repayment (such as amount, frequency, and method of payment). There can be no enforceable contract if the parties failed to agree on any one of these elements. [ 72 ] I will discuss each one of these elements in the context of this case.

The parties [ 73 ] What is interesting is that until the end of this trial, the Claimant was proceeding on the basis that she made a loan to both the Defendant and the Third Party, as reflected in her pleadings and Trial Statement. In her Trial Statement, dated August 8, 2019, she states, at paras. 6 and 12, as follows: 6. The Claimant and Mr. Martin agreed to provide the Loan on October 5, 2016, provided that the Defendant and Mr. Jones agree to repay the Loan and any interest that the Claimant was charged, as the Claimant was using her line of credit to provide the Loan. The Defendant and Mr.

Jones agreed to repay the Loan and any interest. 12. To date, the Defendant and Mr.

Jones have made no attempt to repay the Loan or any interest. [ 74 ] And even in her testimony at trial on August 16, 2019, the Claimant said both the Defendant and the Third Party asked to borrow the $11,000, but towards the end of the trial, she changed course and took the position that she made the loan contract only with the Defendant. [ 75 ] She argues that the request of the Defendant and the Third Party to borrow $11,000 from her was the “offer”; her text message to the Defendant to add interest was the “counteroffer” which negated the original offer; and the Defendant’s text message to her thanking her for the $11,000 was the “acceptance”.

She claims that since the Third Party was away at that time and he did not accept her

counteroffer, and only the Defendant did, that her loan contract was only with the Defendant. I reject this argument. [76] The evidence is clear that it was the Third Party who initially approached the Claimant, and then both the Defendant and theThird Party met with the Martins on October 4, 2016 to discuss the $11,000. The Claimant testified that she believed the funds were forthe purpose of completing the purchase of the Crescent Drive Property, and that both the Defendant and the Third Party would be ontitle, as they were living together as a couple at that time.

She said she only recently found out that the Third Party was not on title to thatproperty. [77] The evidence does not support the Claimant’s assertion that the Defendant agreed to repay the alleged loan and any interest.The evidence is not clear whether the Third Party agreed to repay the alleged loan and any interest. The Third Party claims that he hadno agreement with the Claimant. [78] However, what is evident, and I find that at the time the Claimant made the Advance, she intended to benefit the Third Party.

The subject matter [79] There is no dispute that the subject matter of the alleged loan is the sum of $11,000. The interest rate [80] A loan is either with or without interest. In this case, the parties agree that there was no discussion of any interest when theymet on October 4, 2016. The only reference to any interest is the Claimant’s PS note in her text message to the Defendant on October 5,2016 that any interest she is charged on her line of credit will be added to the total. [81] This note provides no specificity as to what the interest rate was.

Interest rates on lines of credit can vary with a bank’s primerate in effect from time to time. Was that the case with the Claimant’s line of credit? Was it a variable rate? If the Defendant was theborrower, as the Claimant alleges, how was she to know what interest to pay? [82] If this was a loan, there is no evidence to suggest that the Claimant made any efforts to notify the Defendant of the cost of thisloan.

The Defendant only became aware of the quantum of the interest claim well after the Claimant commenced this action in June2018, as the Claimant only paid off her line of credit as of November 1, 2018. [83] Even when the Claimant made her first demand for payment from the Defendant, on May 29, 2018, she only asked for therepayment of the $11,000, but made no mention of any interest charges. [84] The Claimant argues that the interest rate could be implied to be the prime rate or a rate that is reasonable in the circumstances,on the basis that “on occasion the law will permit certain terms to be implied to give business efficacy to the bargain” (Le Soleil, at para.332).

What the Claimant fails to state is that the court in Le Soleil, at para. 332, said: If agreement on all essential terms is established, on occasion the law will permit certain terms to be implied to give business efficacyto the bargain: . . . For example, in . . . a case involving an agreement to lease, the Court implied terms such as the dates for payment ofrent. A term should not be implied, however, unless it is necessary: . . .

In addition, no term should be implied where it would have theeffect of rewriting the bargain or contradicting its other terms: . . . (My emphasis.) [85] In this case, the evidence indicates that agreement on all essential terms was not established. As I said earlier, interest rate is anessential term of a loan contract. Even if a loan is without interest, that term must be specified. Here, the Claimant intended to charge theinterest rate she was charged on her line of credit.

Therefore, if interest were to be implied to be the prime rate or some other reasonablerate, as the Claimant suggests, it would be directly contrary to what the Claimant intended to charge, and, furthermore, it would have theeffect of rewriting what the Claimant intended. [86] The court cannot accede to this argument.

The terms of repayment [87] The parties agree that they did not discuss any terms of repayment. [88] The first time the Claimant asked for repayment of the $11,000 was on May 29, 2018, almost 20 months after the Advance wasmade, and almost 17 months after the relationship between the Defendant and the Third Party ended on January 4, 2017. [89] The Claimant argues that although there was no fixed term for repayment, the general rule is that if a loan does not set out afixed term for repayment, the law will imply that the loan is to be repaid within a reasonable time (citing Koch v. Cactus Café JasperAve.

Ltd., (BC SC), at para. 15). [90] Even if I accept this argument, I cannot conclude that 17 months after the end of the relationship between the Defendant and theThird Party is a reasonable time. Even so, that demand was only made after an instigation from the Defendant as noted in the textmessage exchange between the Defendant and the Claimant on May 29, 2018.

The demand was only for the return of the $11,000“ASAP,” and did not include any demand for the interest the Claimant said she would add to the total. [91] This again suggests that the Claimant did not loan the $11,000 to the Defendant, but rather made an advance to assist, andbenefit, the Third Party. It does not appear she intended to recover that amount or the interest on it from the Defendant, but decided topursue the Defendant about 20 months after she made the Advance because the Defendant made the Claimant “a little angry”.

Her claimappears to be motivated by vindictiveness, rather than on a sound legal basis. [92] The Claimant and the Third Party argue that there was no contract between them whereby the Third Party agreed to repay the$11,000 to the Claimant. Regardless of whether or not there was a contract between the Claimant and the Third Party, the evidence

supports the conclusion that there was no loan contract between the Claimant and the Defendant. [93] In the final analysis, I conclude that the parties have not met the test of agreement for legal purposes, in that they have notindicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. [94] Before I turn to the unjust enrichment analysis, I will briefly address the Third Party’s argument regarding the nature of hisrelationship with the Defendant.

Nature of the relationship between the Defendant and the Third Party [95] The Third Party tried to suggest that he was in a spousal relationship with the Defendant. He repeatedly said that they livedtogether for a period of two years.

He also said that he and the Defendant were in business together, and that the various transactions(both charges and payments) that he placed on the Defendant’s credit card were related to their business. [96] The evidence indicates that as at the end of his relationship with the Defendant, the Third Party’s outstanding debt on theDefendant’s credit card was $53,293.17. [97] The Third Party argued that if he owed large sums of money because of his transactions on the Defendant’s credit card, whywas only $11,000 transferred to reduce the balance on the Defendant’s credit card?

The Defendant explained, and the documentaryevidence confirms, that she only needed enough funds to reduce her credit card balance to the $8,000 level the bank required to approvethe financing for the purchase of the Crescent Drive Property. [98] Although the Third Party did not articulate it clearly, it was obvious that he was trying to establish that because he was in aspousal relationship with the Defendant, the debt on the Defendant’s credit card was a “family debt” (as described in s. 86 of the FamilyLaw Act, [SBC 2011], c. 25), and that the Defendant is also responsible for that debt. [99] The Defendant denied that she and the Third Party were in a spousal relationship.

She referred to s. 3 of the Family Law Act,which states, in part, as follows: Spouses and relationships between spouses 3

(1) A person is a spouse for the purposes of this Act if the person . . . (

b) has lived with another person in a marriage-like relationship, and (

i) has done so for a continuous period of at least 2 years, . . .

(3) A relationship between spouses begins on the earlier of the following: (

a) the date on which they began to live together in a marriage-like relationship; . . . [100] The Defendant established through documentary evidence, and the Third Party reluctantly agreed, that they started livingtogether in a marriage-like relationship from February 2015, when the Third Party moved in with the Defendant at the Townhouse.There is no dispute that their relationship ended on January 4, 2017. [101] The Defendant testified that even during the less than two-year period that the Defendant and the Third Party lived together, theThird Party did not live with her all the time, as he often worked out of town.

The Third Party also said that while he lived at theTownhouse, he would often be out of town during the week, and would only come to the Townhouse on the weekends. [102] The Defendant also testified that she was never in business with the Third Party, and that she only tried to assist him with thebookkeeping for the business, as he had not filed the business’ tax returns for a number of years.

When she questioned the Third Party asto whether there was anything in writing showing that she and the Third Party were in business together and whether she was paid fromthe business, he said, “I have thousands of emails between us, and you and customers. You’re on my Rev. Can. Documents.” He did notproduce any documents to substantiate his assertions.

Finally, he agreed that he and the Defendant did not have a “business contract.” [103] The evidence establishes that the Defendant only assisted the Third Party with the paperwork for his business, and does notestablish that she was in business with him, sharing the risks and rewards of that business. [104] I find that the Defendant and the Third Party were not in a spousal relationship, and also were not in business together.

Was the Defendant unjustly enriched? [105] If no contract is found between the Claimant and the Defendant, the Claimant submits that the Defendant was unjustly enrichedby the Advance. [106] The Defendant denies that she was unjustly enriched. She submits that if no contract is found between the Claimant and theThird Party, it is the Third Party who was unjustly enriched by the Advance, as the Advance was applied to reduce his debt on theDefendant’s credit card. [107] As the Supreme Court of Canada noted in Garland v.

Consumers’ Gas Co., 2004 SCC 25, at para. 30: 30 As a general matter, the test for unjust enrichment is well established in Canada. The cause of action has three elements: (1) anenrichment of the defendant; (2) a corresponding deprivation of the plaintiff; and (3) an absence of juristic reason for the enrichment(Pettkus v. Becker, (SCC), [1980] 2 S.C.R. 834, at p. 848; Peel (Regional Municipality) v. Canada, (SCC), [1992] 3 S.C.R. 762, at p. 784). . . .

[ 108 ] The Claimant relies on Harraway v. Harraway , 2009 BCCA 561 , wherein the court dealt with whether or not Mr. and Mrs. Harraway, who were engaged in matrimonial litigation, were enriched by certain funds Mr. Harraway’s mother, Ms. Fournier, advanced to the Harraways. The funds were determined not to be a gift, and there was insufficient evidence to establish that the funds were a loan from Ms. Fournier to the Harraways. The court said that there was no question that the Harraways were enriched and Ms. Fournier suffered a corresponding deprivation.

It said it was a simple case where money moved from one party to another party, and that the real issue was whether there was an “absence of juristic reason for the enrichment” ( Harraway , paras. 15-16 ). In the end, the court found in favour of Ms. Fournier. [ 109 ] The Claimant submits that her circumstances are similar to those in Harraway , and that I should find in favour of the Claimant, and against the Defendant.

I disagree. [ 110 ] As I said earlier, the bulk of the Advance was applied directly to reduce the Third Party’s debt on the Defendant’s credit card, and that too, only to the extent necessary to reduce the balance to the level required by the Defendant’s bank, and the balance was transferred to the Third Party for his personal use. I find that no portion of the Advance was applied directly towards the purchase price of the Crescent Drive Property. [ 111 ] Therefore, I conclude that the Defendant was not enriched by the Advance.

Was the Third Party unjustly enriched? [ 112 ] As I have discussed above, there is ample evidence to indicate that the Third Party was enriched by the Advance, and the Claimant suffered a corresponding deprivation. [ 113 ] However, is there an absence of juristic reason for the enrichment? [ 114 ] The court in Harraway analysed the third element of the unjust enrichment test as follows, at paras 17 to 21: [17] The “absence of juristic reason” element is examined in two stages: Garland at paras. 44-45 . [18] First, Ms.

Fournier has the burden of showing “that no juristic reason from an established category exists to deny recovery”: Garland at para. 44 . This is a short list of established categories of juristic reasons that Ms. Fournier must disprove. [19] The list of established categories is set out in Garland : 1. A contract. 2. A disposition of law. 3. A donative intent. 4. Other valid common law, equitable, or statutory obligations. [20] If Ms.

Fournier shows that there is no juristic reason from an established category, then a prima facie case of unjust enrichment is made out. [21] Under the second stage, the onus shifts to Ms. Harraway to rebut the prima facie case of unjust enrichment. This can be done by showing another reason to deny recovery to the claimant, and why the enrichment should be retained: Garland at para. 45 .

At this stage, the court must have regard to the “reasonable expectations of the parties” and “public policy considerations:” see Garland at para. 46 . [ 115 ] Here, although the Claimant initially said that she made a loan to the Third Party as well, she later claimed that there was no loan contract between her and the Third Party. [ 116 ] Both the Claimant and the Third Party denied that they made any separate agreement whereby the Third Party would repay the $11,000 directly to the Claimant. [ 117 ] The evidence is clear that the Claimant did not intend to make a gift of the $11,000 to the Third Party (or to the Defendant).

No other juristic reasons were raised. [ 118 ] There is sufficient evidence to make out a prima facie case of unjust enrichment in favour of the Claimant, and against the Third Party. [ 119 ] The onus then shifts to the Third Party to rebut the prima facie case of unjust enrichment. [ 120 ] The Third Party did not provide any reason to deny recovery from him, other than to insist that the Advance was deposited to the Defendant’s bank account for the purpose of purchasing the Crescent Drive Property, and that the Defendant has sole title to that property. [ 121 ] His statement is partly correct, in that the Defendant alone has title to the Crescent Drive Property.

However, I have already discussed at length why the Defendant was not enriched by the Advance. [ 122 ] As the court in Garland noted, at para. 45 , this stage of the analysis provides for a category of residual defence in which courts can look to all of the circumstances of the transaction to determine whether there is another reason to deny recovery.

As part of the person’s attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations ( Garland , para. 46 ). [ 123 ] There are no public policy considerations in the case before me. [ 124 ] The circumstances indicate the parties’ reasonable expectations as follows: the Claimant expected the Advance and interest to be

returned to her; the Defendant expected the Third Party to repay the Advance and interest to the Claimant, as he benefitted from thosefunds by a reduction in his debt to the Defendant; and it is not clear what the Third Party expected.

I infer that he tried to find a quicksolution to reduce his debt to enable the Defendant to purchase the Crescent Drive Property, in the hopes of reconciling his debt with theDefendant in the future, except that his relationship with the Defendant, unexpectedly, came to an abrupt end, forcing all of the issuesbetween the parties to come to a head. [125] In reviewing all of the circumstances, I can find no reason to deny recovery to the Claimant from the Third Party. [126] I conclude that the Third Party was unjustly enriched by the Advance.

What is the appropriate remedy for unjust enrichment? [127] In discussing the appropriate remedy, the court in Harraway, at para. 51, referred to Peter v. Beblow, (SCC),[1993] 1 S.C.R. 980, wherein McLachlin J. stated at pp. 987-988, as follows: An action for unjust enrichment arises when three elements are satisfied . . . These proven, the action is established and the right to claimrelief made out. At this point, a second doctrinal concern arises: the nature of the remedy. “Unjust enrichment” in equity permitted anumber of remedies, depending on the circumstances. . . .

While the first remedy to be considered was a monetary award, the Canadianjurisprudence recognized that in some cases it might be insufficient. . . . In other words, the remedy of constructive trust arises, wheremonetary damages are inadequate and where there is a link between the contribution that founds the action and the property in which theconstructive trust is claimed. [Emphasis added in Harraway.] [128] Here, a monetary award is the appropriate remedy, as the Advance was applied to reduce the Third Party’s debt. CONCLUSION [129] As discussed, I conclude as follows: (

a) there was no valid and enforceable loan contract between the Claimant and the Defendant regarding the Advance; (

b) the Defendant was not enriched by the Advance; (

c) the Third Party was unjustly enriched by the Advance; and (

d) a monetary award is the appropriate remedy for the unjust enrichment of the Third Party. ORDER [130] I order that the Third Party shall pay to the Claimant the following amounts: (

a) The sum of $11,000; (

b) Interest of $1,709.71, for the period October 5, 2016 to November 1, 2018, that the Claimant paid on her line of credit to borrowthe $11,000; and (

c) Filing fees of $156.00 and service fees of $80.00; (collectively, the “Judgment Amount”). [131] The Third Party shall pay the Judgment Amount within three months of the date of this Judgment, unless he has applied for apayment hearing before the due date. [132] I order that the Third Party shall pay to the Defendant the following amounts, within 30 days of the date of this Judgement: (

a) Filing fees of $25.00; and (

b) Service fees of $40.00. [133] I have not ordered the return of the filing fees the Defendant paid when filing her counterclaim, as her counterclaim wasdismissed. ____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia