Lemoine v Bevans, 2023 ABCJ 202

In the Alberta Court of Justice Citation: Lemoine v Bevans, 2023 ABCJ 202 Date: 20230929 Docket: P2202600217 Registry: Lethbridge Between: Connie Lemoine Plaintiff Defendant by Counterclaim - and - Tim Bevans Defendant Plaintiff by Counterclaim Judgment of the Honourable Justice P.G. Pharo Introduction [ 1 ] These actions arise out of the aftermath of the termination of a five-year close and caring relationship between two mature and well-established people. Mr. Bevans runs a ranching operation near Cardston, Alberta. As well as ranching he boards horses and is a skilled welder, mechanic and farrier. Ms.

Lemoine owns and lives on around 55 acres near Airdrie, Alberta where she boards horses, and has some cattle and horses of her own. She also operates three businesses on her property: (1) a western wear and supply shop called Giddyup Western Wear (Giddyup); (2) a UPS outlet; and (3) a Purolator outlet. [ 2 ] Ms. Lemoine and Mr. Bevans first started talking on the phone in late 2015, then actually met in February 2016, at which point they started their relationship. They were both involved in what was described as a rodeo lifestyle. They would participate in rodeo events, some of which they did together.

During the relationship, they would get together on weekends on a regular basis. Shortly after the relationship began, Ms. Lemoine brought some of her horses to Mr. Bevans’s ranch in Cardston. She never paid for boarding the horses, which is the main issue in this case. When she was visiting Mr. Bevans she would ride her horses to accompany him when he did his ranch work. [ 3 ] During this five-year relationship, Mr. Bevans and Ms. Lemoine both continued to operate their own respective businesses

separately. However, they did assist each other in running those businesses, but they each expected that some payment would be made for such assistance. For example, Ms. Lemoine purchased a 32-foot cattle trailer ( the “Trailer”), which Mr. Bevans took possession of immediately, and has used ever since. He has made some payments to Ms. Lemoine for the Trailer. Likewise, Ms. Lemoine advanced money by way of a loan to Mr. Bevans so he could fix his tractor when it broke down ( the “Tractor Loan”). It is not disputed that Mr. Bevans agreed to reimburse her for that loan, and he has made payments on that loan. Mr.

Bevans would purchase ranch supplies through Giddyup to support Ms. Lemoine and so he could benefit from the dealer discounts. [ 4 ] They also joined together as partners in some rodeo activities where they would split the costs and winnings. [ 5 ] Furthermore, they provided services to each other for which they did not appear to expect any payment. Ms. Lemoine said she would go grocery shopping, then come down for the weekend to Mr. Bevans’s ranch in Cardston where she would cook and clean as well as help on the ranch. Mr. Bevans did likewise, in that he sometimes went up to Ms.

Lemoine’s place in Airdrie where he helped with projects there. There were no payments by either of them to the other for such things. They both said those things were done because they were in a caring relationship at the time. [ 6 ] When the relationship ended in April 2021, at that time Mr. Bevans did not deny that he owed money to Ms. Lemoine for the Trailer and the Tractor Loans but took the position that the fees that Ms. Lemoine owed him for horse boarding was greater than these amounts. He says, by way of counterclaim, that Ms. Lemoine instead owes him money. [ 7 ] Mr.

Bevans also counterclaims for about $18,000.00, alleging that Ms. Lemoine broke into his place and stole his goods having that value. The Nature of the Relationship Between Mr. Bevans and Ms. Lemoine [ 8 ] The nature of the relationship between these two people is very important to this case, because of the context of their different kinds of agreements. The evidence was that Mr. Bevans and Ms. Lemoine were both mature people. Mr. Bevans testified that he was turning 64 years old this year. It appears that they both had adult children.

They both had established businesses, which were ongoing during their five-year relationship. [ 9 ] The evidence was that they operated their own respective businesses independently during their relationship but did assist each other financially. [ 10 ] They also had some joint ventures, namely the acquisition and supply of cattle which were used for stock at various rodeos. It appears that they split the profit for that operation. It was primarily for this operation that the Trailer was purchased. They also partnered in rodeo activities together such as ribbon racing, and team roping jackpot rodeos.

When they won some money, it appears that they split it. The evidence was that they split the proceeds when they sold calves from the cattle operation. The evidence was that when they went to rodeos they would often stay together in Ms. Lemoine’s vehicle. [ 11 ] As noted they also provided various other services to each other, for which it was agreed neither expected payment. [ 12 ] The main issue in this case is which category these horse boarding fees for Ms. Lemoine’s horses fits into. Mr. Bevans’s position is that horse boarding fees should be set off against his debts to Ms. Lemoine. On the other hand, Ms.

Lemoine says that Mr. Bevans agreed at the time they were incurred that she should not have to pay for horse boarding. The context of their relationship is important in considering this question. [ 13 ] The evidence was that this relationship started in December of 2015, when at the suggestion of a mutual friend, Mr. Bevans phoned Ms. Lemoine. They talked on the phone for two months. When Ms. Lemoine brought her horse, Streaker, to Cardston to go to a trainer, Ross Hanson, she met Mr. Bevans in person, which she said happened on February 8, 2016. The evidence was that their relationship started right away.

They both testified that they hoped this would turn into a long-term permanent relationship. Ms. Lemoine said she thought they were going to get married. Mr. Bevans testified that he thought that as well at the beginning, but as more time went on, he was less inclined to think it would be a permanent relationship, although it is not clear that he told Ms. Lemoine about these feelings before the relationship ended. [ 14 ] Ms. Lemoine provided services to Mr. Bevans for which she did not expect compensation, because they were in a relationship. Ms.

Lemoine testified that during the relationship she would come down on the weekends as often as she could. During the weekends at Mr. Bevans’s place, she said she would do the grocery shopping before she came, unload and put away the groceries, do many loads of laundry, do all the cooking, and made meals for him for when she was not there as well as baking. When she was there on weekends, she said that if they were not going to a rodeo together, she would help out doing farm chores, such as opening gates, painting, and feeding animals.

She said they would take their horses and ride out to the pastures to check cattle. She testified that she helped him with calving, branding, and doing pregnancy tests. At one point, Mr. Bevans asked to borrow her skid steer so he could more easily clean out his corrals, which she agreed to. The evidence was that he had her skid steer on his place for over a year. Ms. Lemoine never asked for compensation for this, although the evidence was that the commercial rental rate was $4,800.00 a month. She said she did these things because they loved each other and were in a relationship. [ 15 ] Mr.

Bevans also testified that he provided services to Ms. Lemoine for which he did not expect compensation, because they were in a relationship. Mr. Bevans stated that they did help each other a lot. He said he went to her place and helped build a wooden corral. He said he helped pound in around 100 posts for the corral. He said he helped put in some gates. He testified he was there 20 days working on that. He testified that he worked on repairing and installing the stock waterers, putting in new gaskets and heat tapes, and wiring. He said that they worked together on these projects, and her neighbours also helped.

He testified that he helped her bring in her hay. Mr. Bevans testified that at the beginning of their relationship he spent most of his time at Ms. Lemoine’s place fixing it up. Mr.

Bevans stated that he bought feed from Ms. Lemoine to support her, but that she also gave him a deal to do so. [ 16 ] In

summary, I find that Ms. Lemoine and Mr. Bevans were together in a committed, intimate, and caring relationship for about five years, from February 2016 until April 2021. The evidence was that Mr. Bevans and Ms. Lemoine continued to run their separate business operations during this five-year relationship. During this time, they also had some joint operations where they split the costs and profits. These activities included their rodeo activities, supplying stock cattle, and participating in competitions such as the jackpots and ribbon racing.

Furthermore, the evidence was clear that they provided many services to each other, for which neither expected compensation, because they were in a relationship. The main issue in this case is to determine into which of these categories the horse boarding fees fall. The Horse Boarding Fees [ 17 ] The evidence was clear that Ms. Lemoine never paid Mr. Bevans for any horse boarding. During the relationship, essentially she had her horses Streaker, Tadie, J-Lo and Squiggy there at various times between the years 2016 and 2019. The foals were there between November 2017 and April 2021. Mr.

Bevans claims boarding fees and farrier fees for this period of time. There was no evidence of any accounting or billing for these services. Mr. Bevans says that the reason there are no records is that Ms. Lemoine stole the records from his place on May 1, 2021. The evidence was not disputed that he did not make any written claim for horse boarding fees until after the relationship was over, and this litigation started. Mr. Bevans put together a statement for these horse boarding fees during the trial, which was entered as Exhibit 2.

It includes the total amount of services he provided, including boarding and farrier services, and amounts to $33,450.00. I will refer to these services collectively in these reasons as “horse boarding fees”. The Trailer Loan [ 18 ] As noted above, one of the rodeo activities the parties were engaged in was supplying stock cattle to team roping jackpots. They would use a Logan trailer which was owned by Mr.

Bevans to transport the cattle, but found this trailer was not suitable because they found that the cattle would sometimes fall down and suffocate because there was a lack of vents at the bottom of the trailer. Ms. Lemoine found a good deal on a more suitable Platinum 32-foot trailer (the “Trailer”) in Texas in the spring of 2018, for the sum of $23,000.00 US, and put a deposit of $5000.00 on it. She paid for the whole balance of the Trailer herself. The bill of sale for the Trailer is dated May 6, 2018. Ms.

Lemoine then arranged for the Trailer to be brought up to the Coutts border crossing, where it was picked up by Mr. Bevans at the border. Mr. Bevans has had possession of the Trailer since that time. [ 19 ] There is a dispute between the parties about the ownership of the trailer. Ms. Lemoine states that the original plan between them was that they were each to own half the Trailer. The evidence was that Mr. Bevans could not afford to pay for his half. Ms. Lemoine testified that to pay for Mr.

Bevans’s one-half share, she agreed to lend him money for his share by setting up a credit agreement through her company Giddyup in the sum of $15,500.00. Payments were to be made in the amounts of $306.88. The loan agreement is dated May 10, 2018. Mr. Bevans did make the payments of $306.88 subsequently. At a later date Mr. Bevans also made a lump sum payment of $5000.00. [ 20 ] Mr. Bevans disagrees with Ms. Lemoine as to the ownership of the Trailer. It is his position that it was always clear that he was to be the full owner.

His evidence was that he could not afford to pay cash for it, and it was agreed with Ms. Lemoine that he was to pay for the Trailer by offsetting the horse boarding fees, which has been done. Mr. Bevans called witnesses such as his bookkeeper, Shirley Leavitt, who testified that Mr. Bevans told her that Ms. Lemoine’s horse boarding fees would pay for the payment for the other half of the trailer. However, Ms. Leavitt said she did not know what the deal was for the horses. The Tractor Loan [ 21 ] The evidence was that Mr.

Bevans used a John Deere tractor to feed his cattle as well as other tasks at his ranch, however at one point during the relationship the tractor motor blew up. Mr. Bevans did not have the funds to fix it himself, so Ms. Lemoine agreed to advance him the funds to get it repaired. [ 22 ] The evidence was that Ms. Lemoine advanced the sum of $9859.82 to Mr. Bevans for the tractor in November 2019 (the “Tractor Loan”). Ms. Lemoine borrowed this money from her bank and gave it to Mr. Bevans. She testified that this was a loan that Mr. Bevans agreed to repay by way of payments to her in the sum of $125.00 per month.

There was evidence that Mr. Bevans made at least 15 such payments to Ms. Lemoine, from between December 2019 to June 2021. [ 23 ] It is Mr. Bevans’s position that the Tractor Loan is also to be paid by way of setoff of the horse boarding fees, although he acknowledges he also made payments against this loan as well. The End of the Relationship – April 2021 [ 24 ] It appears that this relationship came to an abrupt end in April 2021. It did not end well. The evidence was that at that time, Mr. Bevans had started a new relationship with a lady by the name of Tammy Johnson, who was his new fiancé. Ms.

Lemoine testified that she told Mr. Bevans that she was going to come down and pick up her belongings at his house. The evidence was that Ms. Lemoine arrived late at night on April 10, 2021. Mr. Bevans and Tammy Johnson were there. Tammy Johnson and Mr. Bevans left the house for the night. Apparently neither Ms. Lemoine nor Tammy Johnson had met, or even knew of each other before that night. Ms. Lemoine stayed over that night.

[ 25 ] What exactly happened the next day is in dispute. [ 26 ] The evidence was that on April 11, 2021, the day after Ms. Lemoine arrived, a bill of sale was drafted up by Tammy Johnson at Mr. Bevans’s house, which purported to transfer Ms. Lemoine’s interest in the Trailer to Mr. Bevans for the sum of $16,000.00 (the “Bill of Sale”). The Bill of Sale shows credit to Mr. Bevans for three checks for $306.88 for the months of April, May and June with a balance of $15,079.36 to be paid out on July 2, 2021. There is controversy surrounding this document. Ms. Lemoine testified that Tammy Johnson drafted it.

It should be noted that the Bill of Sale had places for all three of these people to sign, but only Ms. Johnson and Ms. Lemoine did actually sign it. It was the evidence of Mr. Bevans that he did not know about this Bill of Sale, did not sign it, nor did he authorize Ms. Johnson to prepare or sign it. I note at this point that Mr. Bevans did not call Ms. Johnson as a witness, and Ms. Lemoine asks me to draw an adverse inference from this. However, the evidence of Mr. Bevans was that he subsequently married then divorced Ms.

Johnson and now is not allowed to contact her, so I am not prepared to draw an adverse inference. On the other hand, I find it is not probable that Ms. Johnson would draft such an agreement without the knowledge or authority of Mr. Bevans and find that he knew and agreed with the contents of it. [ 27 ] Ms. Lemoine testified that on May 1, 2021, she came back, walked into his house and got her health mattress off the bed and grabbed her daughter’s crockpot. She then went and took Mr. Bevans’s belongings out of the Trailer and placed them on the ground.

She said she then got her pressure washer they used to wash the Trailer. It appears she also recovered the skid-steer. [ 28 ] Mr. Bevans testified that Ms. Lemoine was at his property on May 1, 2021, he stated she broke into his gun safe and stole some cash he had there, as well as his records showing all the services that he had provided with respect to boarding Ms. Lemoine’s horses. He also testified that she stole money from his car. Mr. Bevans says she stole $6,165.00. He says she also took some of his property and caused some to be destroyed. Ms.

Lemoine denies that she stole any of his cash or property. [ 29 ] With respect to the horse boarding fees, it is clear that Ms. Lemoine never paid any such fees and did not ever receive a written invoice for such fees from Mr. Bevans until after this action was commenced. The Law of Oral Contracts [ 30 ] One of the main issues in this case is whether there was an oral agreement between the parties as to whether the horse boarding fees were to be set off against the Trailer debts and the Tractor Loan.

The law on this point has been well summarized by Justice Burns in the case of Schluesssel v Margiotta, 2018 ABQB 615 (Schluessel ), where it is stated: 11 ...The relevant main principles are as follows: Credibility: Witnesses' credibility must be tested against those facts that are not seriously in dispute, and with the preponderance of the evidence and the probabilities surrounding the events. Burden of Proof: The person seeking to enforce a disputed oral contract carries both the legal and evidentiary burden of proving, on a balance of probabilities, that the alleged oral contract was made.

Basic Contractual Principles Apply : There must be proof of offer, acceptance, and certainty of terms. Consensus ad idem: Parties must agree on essential terms, and these terms must be capable of being determined with a reasonable degree of certainty. Legal Test to Find Agreement : The Court must assess 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.

This is not about a party's subjective intention or belief; it is an objective test. 13 In applying the objective, reasonable person test, courts will consider parties' conduct before, during, and after a disputed agreement. Where there is disagreement on the facts of how parties' conducted themselves "the court must decide which version of events is the most reliable," that is, which version is "in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable" .... This may entail a credibility assessment. Did Ms.

Lemoine Agree to Pay Horse Boarding Fees to Mr. Bevans: Was There a Contract? [ 31 ] The evidence was clear that Ms. Lemoine started leaving a horse at Mr. Bevans’s place in Cardston very soon after their relationship started in February 2016. Ms. Lemoine testified that she had her horse, Streaker, at a trainer near Cardston for February, March and April of 2016. She said that at that time, because they were in a relationship, Mr. Bevans invited her to leave the horse at his place so she would have a horse to ride when she was there on weekends. She said that Mr.

Bevans could also use the horse to pack salt up to the hills to his cattle as well. Ms. Lemoine testified that they then decided to breed Streaker to a local stud. She stated that she then brought another brood mare, Tadie, to Mr. Bevans’s place, and they decided to breed her as well. Ms. Lemoine testified that she was there a lot on weekends and Mr. Bevans never asked her to pay for horse board. Ms. Lemoine said that she had her own 55-acre property in Airdrie where she boarded horses herself. She said she did not need to board her horses at Mr. Bevans’s place because she had her own property. [ 32 ] Ms.

Lemoine testified that the two mares foaled in the spring of 2017. Ms. Lemoine testified that they raised the foals together, and it was an enjoyable activity. She then brought another mare, J-Lo, to be bred to Mr. Bevans’s stud, without success. She testified that she brought her three mares’ home at the end of March 2019.

[ 33 ] With respect to the two foals, Josie and Six, Ms. Lemoine said they went out to pasture on a different property in 2018. She said they then spent time wth a trainer, Randy Smith. Ms. Lemoine testified that after Six finished at the trainer, Mr. Bevans asked if he could use the horse to check cows on his place. Ms. Lemoine took both foals home on April 11, 2021. [ 34 ] Ms. Lemoine testified that she always supplied the grain for her horses at Mr. Bevans’s place. She said that Mr.

Bevans would always come up to her place to help her bring in her hay from the field and he would always take a load of hay home to feed the horses. [ 35 ] Ms. Lemoine testified that she never agreed orally, nor did she sign a written agreement to pay horse boarding fees at Mr. Bevans’s place. She said she had her own place and grew her own hay, so it would make no sense for her to pay someone else to board her horses. She testified that if she had known Mr. Bevans was going to charge her horse board, she never would have left her horses there.

On the other hand, she pointed to the things she did for him free of charge, because they were in a relationship and loved one another. She said she considered the horse boarding a service in the same category, namely one that Mr. Bevans provided to her without compensation so she could have a horse to ride when she was down visiting him. [ 36 ] As set out in the Schluessel case above, the person seeking to enforce a disputed oral contract carries both the legal and evidentiary burden of proving, on a balance of probabilities, that the alleged oral contract was made. Mr.

Bevans states that there was an oral contract that Ms. Lemoine agreed to pay horse boarding fees, which were to be set off against the Trailer and Tractor Loans. He therefore has the legal and evidentiary burden to prove that contract, on a balance of probabilities. [ 37 ] In assessing this evidence, this Court must determine 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. This is not about a party's subjective intention or belief; it is an objective test: see Schluessel .

In the context of this case, this means that it is not what Mr. Bevans or Ms. Lemoine testified they believed the arrangement on horse boarding was, or should be that is important, it is what a reasonable bystander would believe, based on what the parties actually said and did. [ 38 ] As already mentioned, the legal and evidentiary burden is on Mr. Bevans to establish that Ms. Lemoine contracted to pay him for horse boarding, as part payment for the Trailer and Tractor Loans. With all due respect, I do not find that Mr. Bevans has met this burden, for the following reasons: 1. Ms. Lemoine had her horses at Mr.

Bevans’s place for five years. There is no evidence that he ever gave her a bill for horse boarding, until after the relationship was over and this legal action started. Ms. Lemoine never did pay Mr. Bevans for horse boarding. None of Mr. Bevans’s witnesses ever saw a written contract for horse boarding between Mr. Bevans or Ms. Lemoine. Likewise, none of Mr. Bevans’s witnesses ever heard Ms. Lemoine say that she had a contract to pay, or had agreed to pay Mr. Bevans for horse boarding, although several of them testified that Mr. Bevans himself had told them that was the arrangement.

Since these witnesses were his daughters, and since they basically testified what he had told them the arrangement was, I put less weight on that evidence. Likewise, his family friend Naomi Paridaen testified that on one occasion Ms. Lemoine said that she could get more for boarding horses in Airdrie than Mr. Bevans was charging her. Again, this was testimony of a family friend, and was an ambiguous statement, which did not amount to an admission that she was paying for horse boarding. Ms. Paridaen also testified that Ms. Lemoine did not tell her specifically what she was paying for horse boarding. 2.

The evidence was that Mr. Bevans did charge his daughters and his friends $150.00 to board their horses. His daughter, Natalie Atwood, testified that she boarded her horses with Mr. Bevans but he expected her to pay monthly, which she did. She said Mr. Bevans would not let her board her horses there if she did not pay. Ms. Paridaen, the friend of Mr. Bevans’s family, testified that she brought three of her horses to Mr. Bevans’s place to board them for some time in 2019 and 2020. She testified that she had to pay $150.00 per month per horse. She said they would square up her bill at most on every second month.

The evidence was that for people who paid for horse boarding, even family and friends, Mr. Bevans expected to be paid fairly promptly, at least every second month. When he made his friends and family pay promptly for horse boarding, it seems unlikely that Mr. Bevans would go five years without demanding payment from Ms. Lemoine, if that was indeed the deal they had. 3. With respect to the Trailer loan, the parties agree that Giddyup borrowed the sum of $15,500.00 from the bank, for one half of the Trailer. Payments were to be made in the amounts of $306.88 by Mr. Bevans. The loan agreement is dated May 10, 2018.

It should be noted that this loan took place two years after Ms. Lemoine first brought her horses to Mr. Bevans’s place in Cardston. Mr. Bevans did make the payments of $306.88 subsequently. At a later date Mr. Bevans also made a lump sum payment of $5000.00. Mr. Bevans now argues that in fact the Trailer was in fact to be paid for by setoff of horse boarding fees. This position is not consistent with the fact that Mr. Bevans agreed to and actually made monthly payments of $306.88 as well as a lump sum payment of $5000.00 so I give it little weight. 4. Similarly, the parties agreed that Ms.

Lemoine advanced the sum of $9859.82 to Mr. Bevans in November 2019 for the Tractor Loan. Ms. Lemoine borrowed this money from her bank and gave it to Mr. Bevans. She testified that this was a loan that Mr. Bevans agreed to repay by way of payments to her in the sum of $125.00 per month. There was evidence that Mr. Bevans made at least 15 such payments to Ms. Lemoine, from between December 2019 to June 2021. This was not disputed. It should be noted that this loan took place three years after Ms. Lemoine first brought her horses to Cardston. However, now Mr.

Bevans takes the position that it was agreed this loan was also to be paid off by setoff of the horse boarding fees. This position is not consistent with the fact that Mr. Bevans agreed to and actually made monthly payments of $125.00 per month, so I give it little weight. 5. I found that the Bill of Sale for the Trailer in favour of Mr. Bevans, prepared April 11, 2021, by Tammy Johnson, in his house was done with Mr. Bevans’s knowledge and authority, although he correctly points out that he did not sign it. This Bill of Sale calls for Mr. Bevans to pay $16,000.00 cash for Ms.

Lemoine’s half of the Trailer by July 2, 2021. This document, which I found was prepared with the knowledge and authority of Mr. Bevans, is inconsistent with Mr. Bevans’s current position that the Trailer was to be paid for by setoff of horse boarding fees. 6. The context of their relationship is very important on this issue. As noted above, during their relationship, Mr. Bevans and Ms. Lemoine kept their respective main businesses mostly separate, but they did jointly operate some of their rodeo activities together, such

as supplying cattle stock, going to jackpot rodeos, and ribbon racing. They shared the costs and profits for those joint activities. Lastly, the evidence was clear that they both did things for each other where they did not expect payment, because they were in a caring relationship. Mr. Bevans did maintenance and construction work at Ms. Lemoine’s place, and Ms. Lemoine came down on weekends to Mr. Bevans’s ranch and helped not just with domestic chores such as cooking and cleaning, but also in ranch operations. The evidence was that Ms. Lemoine would often go riding with Mr. Bevans at his ranch.

It seems to me, considering the whole context of their relationship, in which horses and riding were so important, it is more likely than not that Mr. Bevans was willing to board Ms. Lemoine’s horses at no cost to her so she could participate with him in the ranch activities on horseback at his place, which they both enjoyed. 7. The evidence was not disputed that Ms. Lemoine had ample space at her place in Airdrie to board her own horses. She in fact boarded horses there for others.

She testified that it would not make sense for her to pay to board her horses in Cardston when she had space at her own place to keep them. 8. For the Court to find a contract, there must be proof of offer, acceptance, and certainty of terms. There was no evidence here of an offer, acceptance, or certainty of terms. 9. Past consideration is no consideration. This is a fundamental principle of contract law. There must be valid consideration for every contract. In this case Mr. Bevans argues that in exchange for Ms.

Lemoine’s promises to make the Tractor and Trailer Loans he promised to provide horse boarding services. However, at the time of the Tractor and Trailer Loans, Mr. Bevans had already been providing the horse boarding services for two years at least. Such services cannot be valid consideration for these new contracts because it was past. 10. The preponderance of the evidence is that there was no claim by Mr. Bevans for horse boarding fees until the relationship was over, and the legal action commenced. This weighs heavily against his claim that Ms.

Lemoine ever agreed to pay for horse boarding fees. [ 39 ] For all these reasons, I find in the context of their relationship there was no valid contract between Ms. Lemoine and Mr. Bevans for horse boarding fees. Is Mr. Bevans Entitled to a Claim for Unjust Enrichment? [ 40 ] If there was no contract for the payment of horse boarding fees between Mr. Bevans and Ms. Lemoine, could there still be a claim for unjust enrichment? A claim for unjust enrichment as set out in the Supreme Court of Canada case of Becker v Pettkus , [1980] 2 SCR 8834 at 848 has three elements, namely: 1. An enrichment; 2.

A corresponding deprivation; and 3. An absence of any juristic reason for the enrichment. [ 41 ] In this case, it appears that the first two elements of the test are met, that is there was an enrichment in favour of Ms. Lemoine and a corresponding deprivation to Mr. Bevans of time and materials. The issue then becomes whether there was a juristic reason for the deprivation. In considering whether there was a juristic reason, the whole of the circumstances must be assessed. The case law is clear that a donative intent by Mr. Bevans will constitute a juristic reason.

The requirements for a donative intent are: an intention to give, an acceptance and a sufficient act of delivery: see Woodbridge Homes Inc v Andrews , 2019 ABQB 585 at para 115 . In this case, as already discussed, these parties, over the term of their five-year relationship, provided assistance and benefits to each other with no expectation of payment. The evidence was that Mr. Bevans asked Ms.

Lemoine to keep her horses and foals at his place for their mutual enjoyment and convenience, he never asked for payment, and indeed made no request for setoff when monies were advanced to him for the Trailer or Tractor Loans, agreeing to make payments instead. These things, in my respectful opinion, all show donative intent. [ 42 ] Donative intent can also be established by examination of the reasonable expectations of the parties. In my view, the evidence shows that they each provided the other with many benefits without the expectation of payment. As noted already, Ms.

Lemoine provided house cleaning, shopping, cooking, and baking, help with ranch chores, and lending of equipment. Mr. Bevans also provided benefits. Given that he asked her to keep her horses at his place, and never requested or insisted on payment when these services were provided, which he did for other people including family and friends, the only reasonable conclusion is that he did not expect payment until after the relationship was over. [ 43 ] I therefore find that there was a donative intent for the horse boarding fees, which constitutes a juristic reason. Mr.

Bevans’ claim for unjust enrichment must therefore fail. Mr. Bevans’ Claim for Conversion [ 44 ] Mr. Bevans claims that Ms. Lemoine stole cash, documents, and ranch equipment from him. [ 45 ] The evidence of Ms. Lemoine was that on May 1, 2021, she arranged to borrow a trailer from a friend so she could pick up her skid steer and she came down to Mr. Bevans’s place to get that and her other property. She said when she got there she took her skid steer to the Cardston Agridome, then came back to pick up the rest of her property, which included her mattress, pressure washer and crockpot.

She said when she got in her truck to leave, Mr. Bevans blocked the driveway, and would not let her leave. She called the police and they attended. Ms. Lemoine said that at that time, Tammy Johnson accused her of stealing paperwork. Ms. Lemoine said that she opened her truck door and invited the police to search her vehicle. The police looked inside but did not do a search. Ms. Lemoine admitted that she hooked up to the Trailer, and she said she took all the old broken stuff out of the top part of the trailer and set it on the ground. Ms.

Lemoine testified she later was contacted by police, and they have charged her with stealing items from Mr. Bevans. She denied taking these items, has pleaded not guilty, and the matter has been set for trial in December.

[ 46 ] The evidence of Mr. Bevans was that the alleged theft happened on May 1, 2021. The items alleged to have been taken are under Tab 8 of his materials in Exhibit 1. Mr. Bevans testified that Ms. Lemoine stole some cash from his gun safe in his house. He said she also took $300.00 from his car. He claimed that the total amount of cash taken by Ms. Lemoine was $6,165.00. He also testified about a couple of calves that died while he was dealing with the RCMP because they got out of the pen in terrible weather and got hypothermia. The value of the calves is not clear, nor is the liability of Ms.

Lemoine for that loss. Mr. Bevans testified that some of the equipment she took was in the trailer, and when she hooked on the Trailer, she threw it out in the arena and ran over it. He said it was raining at the time, and snowing, and everything got wet. Mr. Bevans testified that ten calf-roping ropes got wet and were ruined, the headstall was gone, the saddle pad was gone, the horn wraps were wet and ruined, a winter blanket was torn, and a gun scabbard was gone. Under Tab 8 of Exhibit 1, Mr. Bevans has a quote from Frontier Western Shop for the above items.

The quote says it is for new items, and it comes to $9,143.00. [ 47 ] Ms. Lemoine denies she stole any cash, took any documents, or stole any equipment belonging to Mr. Bevans. [ 48 ] The onus is on Mr. Bevans to prove that Ms. Lemoine stole his property, on a balance of probabilities. I find that he has not done so. There is no proof that Ms. Lemoine took his cash, other that his evidence that the cash disappeared, so it must have been Ms. Lemoine who took it. Ms. Lemoine denies taking any cash. There is no evidence that points strongly to Ms.

Lemoine being the one who took this cash. [ 49 ] With respect the equipment in the Frontier quote, again there is insufficient evidence that Ms. Lemoine took any of it or caused damage to it. The onus is on Mr. Bevans to prove that claim as well. Furthermore, the quote is for new equipment, and even if it was established, that Ms. Lemoine was liable for this loss, Mr. Bevans is only entitled to the value of that used equipment, not replacement value of it. I find that Mr. Bevans has not proven this loss on a balance of probabilities.

Conclusion [ 50 ] This action arises out of the termination of a five-year relationship between Mr. Bevans and Ms. Lemoine. The relationship was an intimate and caring one, and at one point, both of them hoped it would become permanent. Unfortunately, it was not to be. It ended badly. This lawsuit is the result. [ 51 ] At the beginning of the relationship, both Mr. Bevans and Ms. Lemoine were mature people with well-established ongoing businesses, which they kept largely separate.

They had a strong common interest in rodeo activities, in which they engaged in jointly, and they shared the profits and losses for those. They also provided many services and benefits to each other, consistent with an intimate and caring relationship, for which neither expected payment. The main issue in this case is to decide into which category the horse boarding fees fall. [ 52 ] With respect to the Trailer which was purchased outright from a dealer in Texas in 2018, based on an objective and reasonable view of all the evidence, I find Mr. Bevans and Ms. Lemoine agreed to own it equally. I accept that Ms.

Lemoine agreed that Mr. Bevans could repay her for his half, by making payments to her in the amounts of $306.88 per month, which he did. He also made a lump sum payment in the amount of $5,000.00. I accept that there is currently the sum of $6,368.02 owing on this Trailer loan. I also accept, based on an objective and reasonable

interpretation of all the evidence, that on or around April 11, 2021, Mr. Bevans acknowledged that he had to repay Ms. Lemoine for her half interest in the Trailer, in the amount of $16,000.00. The Bill of Sale of that date is evidence of this agreement. I do not accept that the parties agreed that the horse boarding fees were to be setoff against these amounts owing for the Trailer. It must be noted that Mr. Bevans has possessed and had exclusive use of the Trailer from 2018 to present, and Ms. Lemoine has never possessed it at all. Therefore, I find that Mr. Bevans owes Ms.

Lemoine the total sum of $22,368.02 for the Trailer loan, and the Trailer buyout. [ 53 ] The evidence was clear and not disputed that Ms. Lemoine advanced a loan to Mr. Bevans so he could repair his tractor. Ms. Lemoine advanced the sum of $9,859.82 to Mr. Bevans for the tractor in November 2019. Ms. Lemoine borrowed this money from her bank and gave it to Mr. Bevans. She testified that this was a loan that Mr. Bevans agreed to repay by way of payments to her in the sum of $125.00 per month. There was evidence that Mr. Bevans made at least 15 such payments to Ms. Lemoine, from between December 2019 to June 2021.

It was the position of Mr. Bevans that even though he made these payments, the agreement was that this loan was to be repaid by setoff of the horse boarding fees. Based on an objective and reasonable view of all the evidence I cannot accept this position for the reasons set out above. I therefore find that Mr. Bevans owes Ms. Lemoine the sum of $7,361.83 for the Tractor Loan. [ 54 ] Mr. Bevans counterclaims for the amount of the horse boarding fees, unjust enrichment and conversion. For all the reasons set out above, these counterclaims are dismissed. [ 55 ] In

summary, there will be a judgment against Mr. Bevans in favour of Ms. Lemoine in the amount of $6,368.02 for the Trailer loan, $16,000.00 for the Trailer buyout and $7,361.83 for the Tractor Loan, for a total of $29,729.85. [ 56 ] Ms. Lemoine shall be entitled to interest on this amount from July 2, 2021, pursuant to the Judgment Interest Act , RSA 2000, c J-1 . Court Costs [ 57 ] Each party claimed court costs in their respective pleadings but did not speak to them in the court hearing. If either party wishes to speak to court costs, they may advise the court in writing within 30 days of this Judgment, to arrange to for a hearing on costs.

Heard on the 21 st day of June, 2023 and the 27 th day of June, 2023. Dated at the Town of Fort Macleod, Alberta this 29 th day of September, 2023 . P.G. Pharo A Justice of the Alberta Court of Justice Appearances: D. Gryba for the Plaintiff/Defendant by Counterclaim T. Bevans Self-Represented Defendant/Plaintiff by Counterclaim