r v. Chaytor, 2021 NLSC 39

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Carter v.

Chaytor , 2021 NLSC 39 Date : March 17, 2021 Docket : 201701G3356 In The Matter of the Estate of Louise Chaytor, late of the Town of Conception Bay South, in the Province of Newfoundland and Labrador; And In The Matter of an Application pursuant to the Rule 56.04A(3) and Rule 56.19 of the Rules of the Supreme Court, 1986 Between: Baxter Carter, as Executor of the Estate of Louise Chaytor, deceased Plaintiff/defendant by counterclaim And: Mabel Chaytor First Defendant/plaintiff by counterclaim And: Reginald Chaytor Second Defendant/plaintiff by counterclaim Before: Justice Vikas Khaladkar Place of Hearing: St.

John’s, Newfoundland and Labrador

Dates of Hearing: January 25 and February 12, 2021

Summary: The Plaintiff made an Application for

Summary Trial pursuant to Rule 17A of the Rules of the Supreme Court, 1986 seeking anOrder that the Last Will and Testament of the late Louise Chaytor be affirmed and admitted to Probate, with costs against the Defendantsand dismissal of the Defendants’ counterclaim. Prior to the hearing of the Application the Defendants abandoned their objection to the granting of Letters Probate anddischarged the caveat that they had filed. This left, for the Court’s adjudication, the Defendants’ counterclaim that the estate ofLouise Chaytor had been unjustly enriched at their expense. After conducting a

Summary Trial, judgment was awarded to the Defendants/ Plaintiffs by Counterclaim, for unjustenrichment. A date will need to be set for the assessment of damages. The Court declined to award costs to either party. Appearances: Sarah J. Clarke Appearing on behalf of the Plaintiff/ Defendant by Counterclaim Randy L. Wellon Appearing on behalf of the Defendants/ Plaintiffs by Counterclaim Authorities Cited: CASES CONSIDERED: Single v. Macharski Estate, (MB KB), [1995] 5 W.W.R. 441, 101 Man. R. (2d) 124(Q.B.); Single v. Macharski Estate, (MB CA), [1996] 3 W.W.R. 23, 107 Man.

R. (2d) 291 (C.A.) STATUTES CONSIDERED: Evidence Act, R.S.N.L. 1990, c. E-16 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The Plaintiff, Baxter Carter, is the nephew of the late Louise Chaytor and, as he put it during his testimony in Court, a“former” nephew of the Defendants, Mabel Chaytor and Reginald Chaytor. His reference was, I believe, intended to underline the deep

rift that has developed between the parties subsequent to the death of Louise Chaytor. I stated to the parties at the conclusion of the Application for

Summary Trial, and I say again, that no amount of money is worth the heartache that has been suffered by all parties in this lawsuit and it is unfortunate that the parties were unable to settle their differences without resorting to a process in which there can only be winners and losers. [ 2 ] Louise Chaytor died on January 14th, 2017. She had made her Last Will and Testament on August 21st, 2013. By virtue of that testamentary disposition she appointed the Plaintiff as her executor and made him the sole beneficiary.

At the date of her death it is estimated that her estate was valued at approximately $272,000.00. [ 3 ] The Defendants, siblings of Louise Chaytor, filed caveats opposing the granting of Letters Probate to the Plaintiff. A short time before the hearing of the Application for

Summary Trial in this matter, the caveats were withdrawn. There is, therefore, no issue with respect to the granting of Letters Probate to the Plaintiff and they will be granted in the ordinary course providing that all of the requirements therefore have been met. [ 4 ] The Defendants filed a counterclaim against the Plaintiff seeking compensation for goods and/or services provided to Louse Chaytor during her lifetime.

The basis for the compensation is unjust enrichment, quantum meruit and/or constructive trust. [ 5 ] Mabel Chaytor says that she provided services of a personal nature – including providing meals to Louise Chaytor, attending to changing her medical dressings on a daily basis (Mabel Chaytor was a registered nurse prior to her retirement), taking Louise Chaytor to doctor’s and other medical appointments. Mabel Chaytor testified that she provided these services on an increasingly regular basis during the four years preceding Louise Chaytor’s death.

She retired from nursing a year earlier than she had anticipated, at the age of 64, in order that she could devote all of her time and attention to the care of her sister, Louise Chaytor. [ 6 ] Reginald Chaytor is a carpenter.

He testified that he provided a number of services to Louise Chaytor – including building a deck which he valued at $5,000.00, replacing the flooring in Louise Chaytor’s kitchen, repairing the roof, painting, maintenance of the house, snow removal and tending to a 50’ x 50’ garden that supplied Louise Chaytor with fresh vegetables. [ 7 ] Both of the Defendants deposed, and testified viva voce , that they never asked Louise Chaytor for any money for their services. Louise Chaytor is said to have told Mabel Chaytor that “Everything will be alright” and “I will take care of you”.

She is said to have told Reginald Chaytor that “I will pay you after”. [ 8 ] The parties agreed with the Court’s determination that there was insufficient evidence tendered with respect to quantum of damages, should liability be established, to render a judgment for damages. They agreed to a bifurcation of the issues such that the question of liability would proceed under the Rule 17A Application for

Summary Trial, with the assessment of damages to be proceeded with, if required, at a later date. the threshold question [ 9 ] I find that the record in this matter is sufficient to enable an adjudication to be made fairly to both sides on the question of liability. In other words, there is a sufficient evidentiary backdrop against which findings of fact can be made on whether or not a claim for unjust enrichment, quantum meruit and/or constructive trust and, in which, there are no material unanswered questions. There is insufficient evidence relating to the quantum of damages.

As noted earlier, the issues have been bifurcated and quantum will be assessed separately if liability is established. [ 10 ] I find that on the face of the Application for

Summary Trial, the parties have brought themselves within the formal requirements of Rule 17A and that it would be appropriate to deal with the issues presented concerning liability by way of a

Summary Trial. [ 11 ] Although there were, in the affidavit material, some facts that were apposite, these inconsistencies were mostly cleared up during the course of the parties’ viva voce cross-examinations and re-direct examinations.

I find that there is no genuine issue with respect to a claim or a defence that requires a conventional trial. [ 12 ] I was able to find the facts necessary on the existing record, as supplemented by cross examinations and re-direct examinations, to decide any necessary questions of fact and law. [ 13 ] I do not find that it is unjust to decide questions of fact or law on the application. [ 14 ] The threshold question, therefore, is answered in the affirmative and I am prepared to deliver a judgment on the basis of the evidence that I have read and heard. findings regarding credibility [ 15 ] I find, if there is any lingering question about the provision of goods and services to Louise Chaytor, that Mabel Chaytor and Reginald Chaytor did, in fact, provide the goods and services that they attested to.

While Baxter Carter denied the provision and value of those goods and services in his affidavit, on the stand he frankly admitted that he was not present in Louise Chaytor’s home while he was working and would have no knowledge of what transpired therein while he was not present. [ 16 ] Mabel Chaytor testified that she attended to Louise Chaytor’s needs on a daily basis and that included preparing three meals per day and attending to her nursing care, driving her to doctor’s appointments and so forth.

She tendered into evidence a calendar with notations in her own handwriting that corroborate her testimony. [ 17 ] Similarly, I find that Reginald Chaytor also provided services to maintain and enhance Louse Chaytor’s property. For the most part there was no objection taken by Baxter Carter as to the extent of the work that Reginald Chaytor performed. There was some objection taken as to whether or not Reginald Chaytor performed some repairs to the roof of Louise Chaytor’s house. I accept Reginald

Chaytor’s testimony that he repaired the roof. [18] I found both Reginald Chaytor and Mabel Chaytor to be forthright, straightforward witnesses. They did not embellish. Theyanswered questions put to them directly. I saw no reason to impugn their testimony. [19] Baxter Carter was adamant that the Defendants were not telling the truth.

He discounted their contributions significantly andstated that, in fact, he provided many of the services required by Louise Chaytor – including changing her bandages, taking her tomedical appointments, cooking at home, cleaning and so on. [20] The fact that Baxter Carter was not there for significant portions of each day during the work week, and his self-admittedaversion to being around people, placed him in a position where he would not have been able to see the time and effort expended byLouise Chaytor’s siblings on her behalf.

Therefore, to the extent that there are inconsistencies in their testimony, particularly as it relatesto what was done for Louise Chaytor, I accept the evidence of Mabel Chaytor and Reginald Chaytor. [21] I found that there was no genuine issue with respect to the claim, defence or counterclaim that required a conventional trial. Ofcourse, the claim for the granting of Letters Probate was made moot by the Defendants’ withdrawal of the caveats that they had filed andtheir admission that it was in order for Letters Probate to be granted to the Plaintiff.

That left the Defendants’ claim, in theircounterclaim, for compensation for the goods and services that they had provided to Louise Chaytor. [22] Counsel for all of the parties submitted that the Court would be able to find the facts necessary on the existing record to decideany questions of fact and law. With the exception of the claim for damages, I agreed that there was sufficient evidence on the existingrecord, augmented by viva voce testimony to allow the matter to proceed on a

summary basis. [23] After taking one last look at the matter, I did not find that there would be any injustice in proceeding with the trial on asummary basis. Having come to that conclusion, the matter proceeded and I am now prepared to deliver a judgment. the evidence act [24] The Plaintiff’s counsel referred me to

section 16 of the Evidence Act, R.S.N.L. 1990, c. E-16, which states as follows: 16. In an action or proceeding by or against the representatives of a deceased person, an opposite or interested party to the action shallnot obtain a verdict, judgment or decree in the action on his or her own evidence in respect of a matter occurring before the death of thedeceased person, unless that evidence is corroborated by some material evidence. [25] Ms. Sylvia Powers gave evidence. She is a friend of Mabel Chaytor’s and would often visit Louise Chaytor along with MabelChaytor.

She visited in this manner a couple of times per month. Ms. Powers testified that Mabel Chaytor would often cook a meal athome and bring it to Louise Chaytor. She indicated that Mabel Chaytor would do household chores while at Louise Chaytor’s house.She witnessed Mabel Chaytor changing Louise Chaytor’s leg dressings. [26] Similarly, Ms. Powers saw Reginald Chaytor provide assistance in the garden, doing odd jobs around Louise Chaytor’s house.It was her impression that he was relied upon for any needed repairs around the house. [27] Ms. Powers never saw Baxter Carter working on the property, lawn or garden.

She said that Reginald Chaytor did most of that. [28] Ms. Powers testified that she never saw anyone else provide nursing or attendant care to Louise Chaytor. She said that she wasa very private person and wouldn’t have wanted anyone other than Mabel Chaytor to provide those services. [29] Baxter Carter testified that Louise Chaytor didn’t require a caregiver or other assistance. She was ambulatory and able to getalong on her own.

He did acknowledge, however, that she had high blood pressure, was overweight, had renal problems, was a diabetic,had ulcerated legs, had suffered from cancer, had congestive heart failure, had injured her shoulder in a fall and had restricted mobility inone arm. At the end of his cross-examination, Baxter Carter admitted that care was given to Louise Chaytor by Mabel Chaytor andReginald Chaytor.

However, he did not acknowledge how much or what it was worth. [30] Mabel Chaytor produced a calendar that had marked on it a number of entries for doctor’s appointments, appointments withother health care professionals, dates and times that she attended with Louise Chaytor for various purposes. [31] Baxter Carter acknowledged that Reginald Chaytor built the deck, tended the garden and that snow removal services wereprovided. [32] I am satisfied, based upon the above, that there is sufficient corroboration of the Defendants’ evidence to satisfy therequirements of

section 16 of the Evidence Act. unjust enrichment [33] The Plaintiff’s counsel cited the case of Single v. Macharski Estate, (MB KB), [1995] 5 W.W.R. 441, 101Man.

R. (2) 124 (Q.B.) at paras 17 – 19 for the proposition that a gift of goods and services made out of natural love and affection wouldestablish a juristic reason for the enrichment – which would disentitle the claimant from recovery on the basis of unjust enrichment. [34] The Plaintiff’s argument is that if goods and services are provided out of familial loyalty, natural love and affection then thisprovides the juristic reason for the provision of goods and services to the recipient.

In other words, the goods and services are meant to bea gift and no compensation can be sought for the making of that gift. [35] The Manitoba Court of Appeal reversed the trial judge in Single v. Macharski Estate, (MB CA), [1996] 3W.W.R. 23, 107 Man. R. (2d) 291 (C.A.). Helper, J.A., for a unanimous Court, stated as follows at paragraph 22 of the Court’s decision:

22. In my view, the trial judge erred in her conclusions that a juristic reason for the deceased’s enrichment did exist by placing undue emphasis upon the wrong question. She focused her finding on Mrs. Single’s evidence that she felt a moral obligation to provide care to Mrs. Macharski. However, she failed to adequately consider the evidence of the changed expectations of the parties and how those expectations arose after 1990. She did not consider the possibility that Mrs. Single’s initial and continuation for providing her services, that is, her love for and devotion to Mrs.

Macharski, could co-exist with a legitimate expectation for compensation. In my view, the evidence demonstrates clearly that the deceased was aware of Mrs. Single’s expectation for compensation as she herself created those expectations with repeated assurances to her. By directing herself almost exclusively to Mrs. Single’s motivation, the motions judge failed to address the abundant evidence of expectation. [ 36 ] Neither Mabel Chaytor nor Reginald Chaytor were under any obligation to provide services to Louise Chaytor.

They were not sufficiently close members of a nuclear family that one would expect them to provide services gratis – such as spouses or children might be expected to do. [ 37 ] And the services provided by each of the Defendants was not trifling. Mabel Chaytor gave up her employment a year earlier than she had planned in order to look after Louise Chaytor. She would have suffered a diminished income in the year she took early retirement, as well as a reduced pension income for the rest of her life.

She testified that she used up all of her entitlement to holidays to look after her sister and even took time off without pay to do so. Surely it is not unreasonable for Mabel Chaytor to expect recompense and, particularly so, under circumstances where Louise Chaytor had made it clear to her that she would see to it that she was looked after. [ 38 ] Similarly, the services and goods provided by Reginald Chaytor were not inconsequential. Most siblings would not expect a brother to build them a deck worth $5,000 and pay for it out of his own pocket.

Louise Chaytor told Reginald Chaytor that he would be looked after. It is not unreasonable for Reginald Chaytor to believe that this would be the case. [ 39 ] Although the Manitoba Court of Appeal decision is not binding on this Court, I accept the reasoning in the judgment because it makes logical sense. The fact that services are provided out a sense of duty cannot negate a legitimate expectation that compensation will flow as a result of those efforts. [ 40 ] Louse Chaytor offered her car to Mabel Chaytor in consideration of what Mabel Chaytor was doing for her. This was not an inconsequential gesture.

The fact that Mabel Chaytor did not accept the vehicle (because she felt that Louise Chaytor needed a car to get around) should not be held against her. The fact of the offer is an acknowledgment by Louise Chaytor that substantial efforts were being expended on her behalf, and that those efforts were valuable and deserving of compensation.

The fact of the offer raises in the mind of Mabel Chaytor the reasonable expectation that her efforts will be rewarded. [ 41 ] The Plaintiff rightly submitted that unjust enrichment has three elements: an enrichment, a corresponding deprivation and a juristic reason for the enrichment. [ 42 ] The Plaintiff admitted that there was evidence of enrichment and deprivation.

The Plaintiff’s position was that the juristic reason for the enrichment was a gift made out of natural love and affection and, therefore, not compensable. [ 43 ] Repeated assurances such as: “Everything will be alright” and “I will take care of you” and “I will pay you after” raise the expectation that the recipient of the services provided by Mabel Chaytor and Reginald Chaytor would act upon those promises and do the right thing. The statements were made not only in acknowledgment of the benefits that were being provided to her, they were also made in the hope that those benefits would continue to be provided.

It is perfectly understandable why Mabel Chaytor and Reginald Chaytor, being close siblings of Louise Chaytor, would not wish to sully their relationship with her by discussions about money.

However, when one considers, especially in the case of Mabel Chaytor, the enormity of the services that were provided and the cost that was borne by Mabel Chaytor in doing so, it is unreasonable to expect that the deprivation should go unrewarded. [ 44 ] I find that the Defendants have shown, on a balance of probabilities, that Louise Chaytor was unjustly enriched and that they are deserving of compensation for the services and goods that they provided to her at her request. [ 45 ] The claim of the Defendants/Plaintiffs by Counterclaim is allowed.

The parties are given leave to seek further directions with respect to the quantification of damages. [ 46 ] The parties had mixed success. The Plaintiff received his remedy as a result of the Defendants withdrawing their caveats and acknowledging that there was no undue influence in the preparation or execution of Louise Chaytor’s Last Will and Testament. The Defendants were successful in their claim for unjust enrichment. [ 47 ] The awarding of costs would simply stoke the fires that have regrettably engulfed this family.

The parties ought to be moving towards a reconciliation of their differences and restoring normalcy to their relationship. Under the circumstances I utilize my discretion to not award costs to either side. _____________________________ Vikas Khaladkar Justice