Rehak v. Zalanfy, 2018 BCSC 2443

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Rehak v. Zalanfy, 2018 BCSC 2443 Date: 20180614 Docket: S170982 Registry: Victoria Between: Terezia Rozalia Rehak and Laszlo Saska Plaintiffs And: Charlotte Ilona Zalanfy Defendant Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgment Plaintiffs appearing on their own behalf: T.R. Rehak L. Saska Counsel for the Defendant, by her litigation guardian, Steven Joseph Butz: H.D. Fisher Place and Date of Trial: Victoria, B.C. May 14 - 16, 2018 Place and Date of Judgment: Victoria, B.C. June 14, 2018 Introduction [ 1 ] THE COURT: The plaintiffs, Mrs.

Rehak and her son, Mr. Saska, have been friends with the defendant, Mrs. Zalanfy, for many years. They also share a common bond in that they are all of Hungarian descent and they live in the same condominium complex. [ 2 ] Unfortunately circumstances have developed between the parties that has resulted in the plaintiffs suing the defendant. [ 3 ] On account of her age related infirmity, Mrs. Zalanfy is represented in this action by a litigation guardian, Mr. Steven Butz. [ 4 ] By Notice of Application filed 8 February 2018, the defendant seeks to have the plaintiffs' action against her tried and dismissed by

summary trial. Background [ 5 ] Mrs. Zalanfy is 97 years old. Her husband died about 40 years ago and she has no children. Her closest relative is a niece, Ms. Vera Ruda, who lives in Hungary. [ 6 ] Mrs. Zalanfy owns a condominium on McKenzie Avenue, here in Victoria. It is her principal financial asset. In 2016 the condo had an assessed value of $366,000. That assessment rose to $411,500 in 2017. [ 7 ] Under the Land Tax Deferment Act , R.S.B.C. 1996 c. 249, payment of the property taxes for Mrs. Zalanfy’s condominium have been deferred.

As of March of last year there were approximately $34,400 in deferred taxes owing. [ 8 ] Mrs. Zalanfy’s income is approximately $25,000 per year which she receives from various government pensions. [ 9 ] In or around the fall of 2016 Mrs. Zalanfy contacted her friend, Mr. Butz, to discuss a number of issues, including her living situation. During this same time period, she also had similar discussions with a number of other individuals, including the plaintiffs. [ 10 ] On 23 September 2016, Mrs. Zalanfy granted enduring powers of attorney to Ms. Ruda and to her friend, Mrs. Judit Szy. In doing so, Mrs.

Zalanfy used the services of her regular legal counsel, Ms. Colleen Kovacs. [ 11 ] On 10 November 2016, Mrs. Zalanfy executed a Last Will and Testament. Again she used the services of Ms. Kovacs. In doing so she removed Mrs. Rehak as the executor of her estate and replaced her with Mr. Butz. Mrs. Zalanfy and Ms. Kovacs also discussed removing Mrs. Rehak as Mrs. Zalanfy's health care representative and appointing Mr. Butz in her stead. Before concluding the meeting, a further appointment was scheduled so that Mrs. Zalanfy’s new health care representation agreement could be prepared and executed.

[ 12 ] In late December 2016 Mrs. Zalanfy was admitted to the Victoria General Hospital with serious health issues. [ 13 ] On 30 January 2017, Mrs. Zalanfy executed a representation agreement, appointing Mr. Butz as her health care representative. Ms. Szy was appointed as an alternate representative. [ 14 ] In consultation with Mrs. Zalanfy's health care professionals, Mr. Butz made arrangements to have her transferred from the Victoria General Hospital to the Oak Bay Lodge.

The actual move occurred towards the end of March of 2017. [ 15 ] By Notice of Civil Claim filed 8 March 2017, the plaintiffs launched the present action against Mrs. Zalanfy. The essence of the plaintiffs’ claim against Mrs. Zalanfy is set out at paragraphs 9 to 12 of

Part 1 of their Notice of Civil Claim: 9. In approximately November of 2016, in exchange for Rehak agreeing to provide care for the Defendant for the remainder of her life, the Defendant agreed to transfer her interest in the Mackenzie property to Rehak on the following terms, and instructed counsel in writing as follows: a. The purchase price for the sale of the Mckenzie property was to be $200,000; b. There would be a registration of a life-interest of the Defendant in the Mckenzie property; c. A portion of the interest in the Mckenzie property would be gifted to Rehak; d.

The Mckenzie property would be owned by Rehak 100% while the Defendant would have life interest registered on the Mackenzie property. 10. The parties further agreed that the Defendant would need to pay her own cost of living as usual. Other costs directly related to the McKenzie property, such as property tax and strata fee and insurance fee would be the responsibility of Rehak. 11. The Defendant further agreed that her care could be provided by Rehak or by Rehak’s son, Saska. [ 16 ] In their action against Mrs. Zalanfy, the plaintiffs seek an order directing that the title to Mrs.

Zalanfy’s McKenzie Avenue condominium be transferred to Mrs. Rehak, in return for a payment of $200,000. In the alternative, they claim compensation for the assistance and care they have provided to Mrs. Zalanfy and damages from her for breach of contract. [ 17 ] On 29 March 2017, Mr. Butz consented to act as Mrs. Zalanfy’s litigation guardian. On that same date, counsel for Mr. Butz filed a Certificate of Fitness indicating her belief that Mrs. Zalanfy was incapable of managing her financial and legal affairs due to a major neurocognitive disorder, dementia.

This belief was founded upon the medical records available at the time that included the opinion of Mrs. Zalanfy’s physician, Dr. Charlotte Bester. Issues [ 18 ] There are three issues that need to be resolved on this matter:

a) Is this matter suitable for determination by

summary trial?

b) If so, have the plaintiffs made out their claim that a valid and enforceable agreement existed for the purchase and sale of Mrs. Zalanfy’s condominium?

c) Have the plaintiffs made out a claim for financial compensation for the services they have provided to Mrs. Zalanfy? Analysis Nature of the Evidence [ 19 ] Before addressing the substantive questions before me, let me briefly comment on the evidence that is before me. In support of the plaintiffs' case, I have:

a) the affidavit of Mr. Saska, sworn on 31 January 2018;

b) an affidavit from Mrs. Rehak, sworn on 17 February 2018;

c) an affidavit from Ms. Ilona Dukai, sworn on 17 February 2018; and

d) three affidavits from Mr. Peter Szikinger, one sworn on 30 June 2017 and two others sworn on 22 January 2018. [ 20 ] In support of the defendant's case I have:

a) two affidavits from Mr. Butz, one sworn on 26 January 2018 and the second sworn on 3 April 2018;

b) an affidavit from Mr. Imre Otvos, sworn on 22 November 2017;

c) an affidavit from Ms. Eva Viszlai, sworn 17 November 2017; and

d) an affidavit from Ms. Szy, sworn 3 April 2018. [ 21 ] While I will not go into any particular detail, I agree with counsel for the defendant that the affidavits of Mr. Saska and Mrs. Rehak and Ms. Dukai are replete with impermissible hearsay, argument, speculation, and character attacks. I also find much of

what is contained in the affidavits is unnecessarily inflammatory. For example, Mr. Saska swears in his affidavit: Steve Butz and Mrs. J. Szy made efforts to undermine the relation between Mrs. Zalanfy and the plaintiffs. I have every reason to believe that Steve Butz and Mrs. J. Szy want to isolate Mrs. Zalanfy from the social environment and they want Mrs. Zalanfy dead. [ 22 ] Mrs. Rehak echoes the same sentiment in her affidavit when she notes: I have no doubt that Mrs. Zalanfy's relatives and representative want Mrs. Zalanfy dead. … Steve Butz does not care that Mrs.

Zalanfy has not showered for over nine months. [ 23 ] In Ms. Dukai’s affidavit, she swears: I find it humiliating that Mrs. Zalanfy is not allowed to go to her own place or to Ms. Rehak's place to take a shower. I also find the attitude of Mrs. Zalanfy's representative’s (sic): Mrs. J. Szy and Steve Butz, unhelpful to Mrs. Zalanfy… I have no doubt that Mrs. J. Szy has an ulterior motive to undermine the reputation of the plaintiffs. I have no doubt that Mrs. J. Szy and Steve Butz want to isolate Mrs. Zalanfy from her usual environment that Mrs. Zalanfy had before the end of 2016.

I have no doubt that the isolation cause (sic) Ms. Zalanfy bad health physically and emotionally. [ 24 ] I should also note that the affidavits of Mrs. Rehak and Mr. Saska are defective in that the documents that accompany them are not specifically identified within the affidavits and have not, in my opinion, been properly marked as exhibits. [ 25 ] As for the defendant's case, there is no affidavit from Mrs. Zalanfy. That does not surprise or trouble me because on the evidence that is before me, including the medical reports that address Mrs.

Zalanfy's medical status, I am satisfied that she is disabled and in need of a litigation guardian. I will also note that while some of the evidence presented by the defence is technically hearsay, I find it comes from unbiased third parties who have nothing to gain one way or another in this litigation. The evidence is necessary and reliable, and, therefore, I have deemed it admissible. Is this matter suitable for a determination by

summary trial? [ 26 ] The defendant's application is brought pursuant to Rule 9-7 of the Rules of Court, which reads: On the hearing of a

summary trial application, the court may (

a) grant judgment in favour of any party, either on an issue or generally, unless (

i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or (ii) the court is of the opinion that it would be unjust to decide the issues on the application ... [ 27 ] The jurisprudence from this court as well as our Court of Appeal is abundantly clear that one of the main purposes of a

summary trial is to lessen the expense and time required to achieve a final resolution of a dispute and that this form of trial can and should be used when the court can determine the facts necessary to render a decision that is just and fair. [ 28 ] The list of factors the court will consider in assessing whether a matter is suitable for

summary trial includes:

a) the complexity of the matter;

b) any urgency to have the matter resolved expeditiously;

c) any prejudice that might arise on account of delay;

d) the cost of proceeding to a conventional trial;

e) whether the credibility of any of the parties is significantly at issue; and

f) if proceeding by way of a

summary trial adds a layer of unnecessary complexity to litigation. [ 29 ] In my opinion, most, if not all, of the factors that I have just listed support having the present action determined by

summary trial. Moreover, I note, the plaintiffs have not argued that their claims against the defendant are not suitable for resolution by

summary trial. On the contrary, Mr. Saska pointedly argued that the claims he and his mother are making against Mrs. Zalanfy are meritorious and that the Court should rule in their favour. [ 30 ] I recognize that Mrs. Rehak and Mr. Saska are self-represented litigants who are not legally trained. Notwithstanding that, Mr. Saska is someone who is quite familiar with the legal process, having been before the courts on previous matters. He spoke eloquently and articulately on his behalf as well as his mother's behalf. Parenthetically, I will also note Mrs.

Rehak also addressed the Court during the course of the hearing. [ 31 ] The fact that plaintiffs have not specifically addressed the question of whether this matter needs to proceed to a conventional trial or whether it can be determined on a

summary trial is, in my opinion, of no great import. What is important is the need to have this matter addressed in a prompt, just, and efficient manner. In my opinion proceeding with a

summary trial will achieve those objectives. Consequently, I will proceed to determine this case in that manner.

[ 32 ] In reaching my conclusion on this

summary trial, I have sifted through all of the evidence and have considered what I have deemed to be admissible evidence. Impermissible hearsay, argument, speculation, and character attacks do not constitute admissible evidence, and, consequently, I have disregarded those portions of the materials that fall into any of those categories.

I have also, in an effort to be fair to all parties, reviewed and considered the documents that were attached to the plaintiffs' affidavits, notwithstanding that they may not have been officially identified or marked as exhibits. [ 33 ] In order for the plaintiffs to be successful and for them to obtain the relief they seek with respect to the condominium in question, they need to prove on a balance of probabilities that:

a) they entered into a valid and binding contract with the defendant; and

b) the contract is enforceable given the provisions of the Law and Equity Act , R.S.B.C. 1996, c. 253.

Did the parties enter into a valid and binding contract? [ 34 ] The plaintiffs claim that they reached such a contract with the defendant for the purchase and sale of her condominium, and that the essential terms of the agreement were reduced to writing. [ 35 ] The defendant acknowledges that the parties did discuss the possibility of entering into an agreement for the purchase and sale of the condominium in question; however, the defendant argues the agreement was never finalized or agreed to. [ 36 ] In the fall of 2016 Mrs. Zalanfy and the plaintiffs, particularly Mrs. Rehak, discussed the possibility of Mrs.

Zalanfy selling her condo to Mts. Rehak. The proposal from Mrs. Rehak included the payment of $200,000 to Mrs. Zalanfy, along with a commitment that Mrs. Zalanfy could remain in her condominium for as long as she wished, and that Mrs. Rehak would provide her with the care and services she would require. [ 37 ] According to Mr. Butz's evidence, in October of 2016 Mrs. Zalanfy told him that Mrs. Rehak had offered to look after her in exchange for selling to Mrs. Rehak her condominium for $200,000. [ 38 ] According to Mrs. Rehak's evidence, as well as Mr.

Saska's evidence, the agreement between the parties for the purchase and sale of the condominium crystallized on 21 November 2016. On that date Mrs. Zalanfy met with Mr. Saska and Mrs. Rehak, with Mrs. Zalanfy writing the following note: Charlotte Zalanfy I would like to transfer 3 - 1741 McKenzie Ave Victoria, B.C., V8N 1A6 property ownership Terezia Rehak name. T. Rehak pays me $200,000.

Two hundred thousand dollars I would like to stay this address until when I still alive I need [indecipherable] live interest on the title. [ 39 ] The note is dated “21-11-2016” signed “Charlotte Zalanfy”. [ 40 ] The plaintiffs point to this note as the foundation of the contractual agreement they say they reached with Mrs. Zalanfy for the purchase and sale of her condo. In other words, this is the contract. However, during his submissions before me, Mr. Saska explained that the agreement also incorporated oral terms, including the extent to which Mrs. Rehak and he would be responsible for Mrs.

Zalanfy's care, as well as who would be responsible for the deferred taxes that are owing the property. [ 41 ] The plaintiffs also point to a document that is written in Hungarian that Mr. Szikinger has translated into English. The document appears to be one that was prepared by or for Mrs. Zalanfy. It is not clear who prepared the document. However, Mr. Szikinger confirms that it was Mr. Saska who provided him with the document. The English translation of this document includes the following: By Charlotte S. Zalanfy hereby declares that she has known T. Rehak for 25 years.

During these years we have maintained daily contacts. T. Rehak and L. Saska have entered into an agreement with me that they will buy my condo located at 3 – 1741; I will be able to keep living in it until I die and they take care of me. They are now helping me in my daily life and when I get ill they will be by my side and take care of me. If I cannot cook, they will; if I need help with bathing and dressing, they will look after me.

After careful consideration, we agreed on $200 thousand. I will not pay for five years for any assistance they provide. Should I getseriously ill and end up in care facility, I will pay the care facility fee, but TR. and LS will visit me twice a day. In the event of TR's death or illness, L. Saska will take upon himself responsibility of my care. [42] This document is not signed. More specifically, it is not signed by Mrs. Zalanfy or Mrs. Rehak. [43] The plaintiffs also point to the fact that Mrs. Rehak attended at a lawyer's office, Mr.

Dunstan Browne, and had a purchase andsale agreement prepared with respect to Mrs. Zalanfy's condo. Moreover, at some point Mrs. Rehak provided the purchase funds, thatbeing the $200,000, to Mr. Brown. [44] The plaintiffs say all of this evidences a clear intention to enter into a contract, and that the contract actually crystallized into anagreement that is binding end enforceable. [45] Mr. Saska has referred me to case authorities that have addressed the question of whether a contractual agreement has beenreached. In particular, he cites and relies upon the decision of Mr. Justice Brooke in Hilbert v.

Lake Country (Sitara) Developments Ltd.,2010 BCSC 785 and the portion of that decision that reproduces the following quote from the well-known text The Law of Contract inCanada by G.H.L. Fridman: Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether parties have indicated to theoutside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law isconcerned not with the parties’ intentions but with their manifested intentions.

It is not what an individual party believed or understoodwas the meaning of what the other party said or did that is the criterion of agreement; it is whether a reasonable man in the situation ofthat party would have believed and understood that the other party was consenting to the identical terms. As Fraser C.J.A. said in RonGhitter Property Consultants Ltd. v. Beaver Lumber Co. 2003 ABCA 221 , [2003] A.J.

No. 912 (C.A.): the parties will be found to have reached a meeting of the minds, in other words be ad idem, where it is clear to the objective reasonablebystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determinedwith a reasonable degree of certainty. [46] I am not convinced that the parties in the case before me reached that reasonable degree of certainty. That is, I am notpersuaded that the plaintiffs and the defendant actually reached a “meeting of the minds”. While Mrs. Rehak made an offer to purchaseMrs.

Zalanfy’s condominium and Mrs. Zalanfy considered the offer, there was never a confirmed or manifested intention or desire on thepart of Mrs. Zalanfy to enter into an actual binding contract. Moreover, I am satisfied that the terms of the purported contract were neverentirely identified or made sufficiently certain, at least not to Mrs. Zalanfy. In other words, I do not accept that the parties actuallyreached a binding agreement. [47] While it is true that Mrs. Zalanfy wrote the note of 21 November 2016, that document simply indicated her wish at the time. Ido not read it as a binding commitment on her behalf.

In light of the evidence presented on this

summary trial, I am satisfied that therewere important terms and conditions of the alleged agreement that had still not been addressed or agreed to. In my opinion, the partiesnever agreed upon all of the terms and conditions of an agreement that would constitute a binding contract for the purchase and sale ofMrs. Zalanfy condominium. I also find that Mrs. Zalanfy ultimately decided against the idea of selling her condominium to Mrs. Rehak. [48] In his evidence, Mr. Butz indicates that he expressed to Mrs. Zalanfy his concern about her proceeding with the proposal thatshe sell her condominium to Mrs. Rehak.

He also attests to the fact that at no time did Mrs. Zalanfy tell him that she had decided toaccept Mrs. Rehak's proposal. [49] The evidence of Mr. Otvos provides some assistance in determining whether the parties reached an agreement. In his affidavitMr. Otvos explains: [13] At some point in 2016, Charlotte told me that Ms. Rehak had offered to buy her condo for about $200,000 and look after her inthe condo.

At first I did not say much, as I felt it was her business as to what she was going to do. [14] As time went on, however, it became apparent that Charlotte was undecided and uncertain as to what she wanted to do, and thiswas a large part of what we talked about during our grocery shopping trips. … [19] On one of my visits with Charlotte in or about mid-December, 2016, I noticed that she seemed particularly stressed and agitated.Ms.

Rehak was also visiting at the time and I suggested that the three of us sit down together to talk and during our talk I asked Charlotteif she had decided what she wanted to do about her living arrangements. Charlotte responded by saying that up until yesterday she wasgoing to go to the Kensington, but today she did not know. [20] On another occasion, Charlotte told me that Ms. Rehak had found her a new lawyer. I asked Charlotte if she had signed anythingyet, and she said no.

Charlotte seemed quite agitated about going to see the new lawyer and did not know what she would be asked tosign or how much “they” were going to offer for her condo. [50] The evidence of Ms. Viszlai also supports the defendant's position on this trial. According to Ms. Viszlai, Mrs. Zalanfy told herthat Mrs. Rehak had offered to purchase Mrs. Zalanfy's condominium for $200,000 and that she could remain in the condo withMrs. Rehak taking care of her. Ms. Viszlai also attests to the fact that Mrs. Zalanfy told her that she did not want to sell her home toanyone and that she wanted Mrs.

Rehak to stop pressing her to sell the condo. [51] Contrary to what the plaintiffs assert, Ms. Szy denies ever telling Mrs. Zalanfy that she had ever entered into a contract with theplaintiffs.

[ 52 ] Having considered all of the evidence, I am satisfied it points overwhelmingly to the fact the parties never reached a meeting of the minds so as to create a binding contractual obligation for them. If there was a binding agreement, was it enforceable? [ 53 ] Even if the parties had reached a binding agreement, I am not convinced that it would have been enforceable. [ 54 ] The contract the plaintiffs allege existed between Mrs. Rehak and Mrs. Zalanfy involved a disposition of Mrs. Zalanfy’s residence. Consequently, for it to be enforceable it must meet the requirements of s. 59(3) of the Law and Equity Act . That provision reads as follows:

(3) A contract respecting land or a disposition of land is not enforceable unless (

a) there is, in a writing signed by the party to be charged or by that party's agent, both an indication that it has been made and a reasonable indication of the subject matter, (

b) the party to be charged has done

an act, or acquiesced in

an act of the party alleging the contract or disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made, or (

c) the person alleging the contract or disposition has, in reasonable reliance on it, so changed the person's position that an inequitable result, having regard to both parties' interests, can be avoided only by enforcing the contract or disposition. [ 55 ] In my opinion the agreement the plaintiffs allege they had with the defendant fails to meet the requirements of this

section of Law and Equity Act . More specifically, I am not satisfied that the alleged contract had been reduced to writing. Additionally, I am not satisfied that Mrs. Zalanfy did anything or acquiesced to the plaintiffs doing anything that indicated an agreement had been reached between them. Finally, I am not satisfied that the plaintiffs did anything in a reasonable reliance on the alleged agreement that resulted in an inequitable result for them that calls for an enforcement of the contract. [ 56 ] Although the plaintiffs allege that the note Mrs.

Zalanfy authored on 21 November, 2016, constitutes the agreement, they also submit that it was supplemented by additional documents and oral terms. I am not convinced that this is the case. I say, respectfully, that counsel for the defendant is correct when she submits that the terms of the contract that the plaintiffs allege actually evolved during the course of this

summary trial. By that I mean during the course of his submissions Mr. Saska repeatedly referred to not only the note of 21 November 2016, but other documents and conversations that he and/or Mrs. Rehak had with Mrs. Zalanfy. [ 57 ] I am not persuaded that the fact that Mr. Browne of Browne & Co. was involved and had prepared documents is convincing evidence of an enforceable agreement. The context and manner in which Mr. Browne became involved in this matter is important. It was Mrs. Rehak who met with Mr. Browne, not Mrs. Zalanfy. Mrs. Rehak provided to Mr. Browne the 21 November 2016 note. However, Mr.

Browne never met with Mrs. Zalanfy to confirm that the note reflected her actual wishes and intention. Attached to Mr. Saska's affidavit is a letter from Mr. Browne to counsel for the defendant, dated 29 September 2017. In this letter Mr. Browne notes: Unfortunately there is nothing in the file prior to the letter presumably from Mrs. Zalanfy, dated 21 November, 2016. I never met Ms. Zalanfy and I drew the agreement to purchase on the basis of her purported letter to me, but I always maintained that it would not go unless I personally saw Ms.

Zalanfy and was confident that she was capable of making such a decision. As it turns out, I was correct. [ 58 ] In my opinion, Mrs. Rehak was the driving force behind Mr. Browne's work, not Mrs. Zalanfy. Mr. Browne prepared the documentation and accepted the purchase funds from Mrs. Rehak; however, he never had any confirmation from Mrs. Zalanfy that she indeed wished to go ahead with the proposed purchase and sale of her home. While it is true that Mrs. Rehak delivered the purchase proceeds to Mr. Browne, it is unclear to me who was his client - Mrs. Rehak, Mrs. Zalanfy, or both? Clearly Mr.

Browne was doing work for Mrs. Rehak, as she was the one who attended his office and who got the process underway. Given the contents of his letter and the fact that he never met with Mrs. Zalanfy, it is difficult for me to conclude that he was acting on her behalf. [ 59 ] I also find it curious that Ms. Kovacs, Mrs. Zalanfy's regular lawyer, was not involved in the proposed sale of Mrs. Zalanfy’s most important financial asset. She had been Mrs. Zalanfy's lawyer for other matters and the plaintiffs were aware of that fact. The plaintiffs have offered no explanation as to why they chose not to have Ms.

Kovacs act in this significant transaction. That leaves me to infer that they chose Mr. Browne for their own benefit and not Mrs. Zalanfy's. [ 60 ] I am not satisfied that the deposit of the funds with Mr. Browne and the preparation of the purchase and sale document evidences anything more than Mrs. Rehak's desire to have the deal completed. Moreover, in my view it does not support the contention that Mrs.

Zalanfy agreed to the deal and was willing and prepared to go through with it. [ 61 ] Overall I am not convinced in the least that an enforceable agreement ever existed between the parties, whether in writing, oral, or a combination of both. Should the plaintiffs be compensated for services provided to the defendant? [ 62 ] The plaintiffs have provided what they say is overwhelming evidence of the efforts they have made on behalf of Mrs. Zalanfy. These include regular visits to her in her home before she went to the hospital, visits with her at the hospital, and visits with her at Oak Bay Lodge.

They claim that during these visits Mrs. Rehak has provided a broad spectrum of personal care to Mrs. Zalanfy, including attending to her hair and her finger and toenails. [ 63 ] In my opinion, the plaintiffs' pleadings do not contain the necessary foundation for a compensatory award based on equitable principles. That is, there is no claim based on unjust enrichment. Nowhere in the Notice of Civil Claim do they assert that they had an

agreement with the defendant that she would pay them for their services that they had rendered to her. [ 64 ] Until she was hospitalized in December 2016, Mrs. Zalanfy was living on her own in her home on McKenzie Avenue. She had friends, including the plaintiffs, assisting her, but essentially she was living an independent life. [ 65 ] While she was in the Victoria General Hospital, the staff there provided Mrs. Zalanfy with the care and necessities of life that she required.

There may well have been some adjustments that needed to be made given her new surroundings and those may have been more challenging given that Mrs. Zalanfy's first language is not English; however I am not persuaded that it was essential that the plaintiffs attend the hospital and care for Mrs. Zalanfy. [ 66 ] The same can be said about Mrs. Zalanfy’s transition to Oak Bay Lodge. While Mr. Saska and Mrs. Rehak allege that the care that Mrs. Zalanfy is receiving in the Oak Bay Lodge is substandard and that she wishes to vacate the premises, I do not accept that is an accurate reflection of the situation.

I am satisfied that the care being provided to Mrs. Zalanfy is appropriate. More to the point, I do not accept that the care she is receiving is insufficient to maintain a healthy standard of living. In my opinion, all of her needs are presently being met. [ 67 ] I do not doubt that the plaintiffs visited the defendant while she was in the hospital and that they continued to do so after she moved to Oak Bay Lodge. However, I am not convinced the records they try to rely on to prove the nature and extent of the efforts they have made on behalf of Mrs. Zalanfy are as accurate or reliable as they claim.

These records were prepared by the plaintiffs themselves using very vague terms and, in my view, they provide a grossly exaggerated picture of their efforts. In my opinion, if the plaintiffs did provide Mrs. Zalanfy with the care and services they claim to have, then they did so voluntarily, with no reasonable expectation of compensation. Conclusion [ 68 ] The plaintiffs have complained that the appointment of Mr. Butz as Mrs. Zalanfy's litigation guardian was improper and uncalled for. I disagree. There is ample evidence to conclude that a litigation guardian was required and that Mr.

Butz was an appropriate person for the appointment. [ 69 ] While I accept that the parties discussed the possibility of Mrs. Zalanfy selling her condominium to Mrs. Rehak, I am not convinced they agreed upon the terms of such the sale. Consequently, they never concluded a binding contract. [ 70 ] The evidence on this

summary trial satisfies me that Mrs. Zalanfy considered Mrs. Rehak's proposal; however, it does not satisfy me that she decided to accept it or that the discussion parties had actually crystalized into an identifiable agreement. [ 71 ] In my opinion, the agreement the plaintiffs claim exists has too many uncertainties to render it binding on the parties. For example, there is the issue of who would be responsible to pay the approximate $35,000 in deferred property taxes is troubling. The plaintiffs say Mrs. Zalanfy would have known she was responsible for that expense. I do not accept that submission.

Nor do I accept the plaintiffs’ argument that Mrs. Zalanfy understood and accepted that she would pay the outstanding property taxes from the proposed $200,000 she would receive from Mrs. Rehak for her condominium, leaving her with only $165,000. If this was a term of the proposed purchase and sale of Mrs. Zalanfy’s home, then it needed to be clearly spelled out in the agreement.

It was not and this creates an insurmountable problem for the plaintiffs. [ 72 ] In my view the uncertainty that exists as to the terms and conditions of the agreement is fatal to the plaintiffs’ claim that they had reached a binding agreement with Mrs. Zalanfy. [ 73 ] Even if I were satisfied that they had reached such an agreement, I am not convinced that it complied with the provisions of s. 53 of the Law and Equity Act . In light of this, the agreement would not have been enforceable. [ 74 ] As for any alternative claim for compensation for services Mrs. Rehak and Mr. Saska provided to Mrs.

Zalanfy, I am not convinced that what they were doing for her justifies any relief on equitable grounds. The plaintiffs do not allege in their pleadings that Mrs. Zalanfy agreed to pay for their services and, consequently, I find no reasons to make a quantum meruit based award. [ 75 ] Before concluding, I wish to make one observation about the audio evidence that was presented at this

summary trial. During a number of meetings between Mr. Butz and the plaintiffs, including some where counsel for the defendant was present, the plaintiffs secretly recorded some of the conversation. Mr.

Saska explained during his submissions that he felt it was necessary to do so and that it provided the best available evidence in support of the plaintiffs’ case. [ 76 ] Leaving aside the question of whether it was appropriate to have recorded these meetings without first informing the other participants, in my opinion the fact that the entire conversations were not recorded and translated, when necessary, renders what was presented of minimal evidentiary value because it could easily be misconstrued and taken out of context.

Order [ 77 ] For all of the foregoing reasons the defendant’s application is granted and the plaintiffs' action is dismissed. [ 78 ] Moreover, the Certificate of Pending Litigation that the plaintiffs have registered against the title to the defendant's condominium is cancelled. [ 79 ] Unless there is a need to address the issue of costs, the defendant is entitled to her costs at Scale B. “G.R.J. Gaul, J.”