2011 MBCA 7, 2011 MBCA 7

Citation: Labossiere-Clark et al. v. Wood et al., Date: 20110127 2011 MBCA 7 Docket: AI 10-30-07424 IN THE COURT OF APPEAL OF MANITOBA Coram : Chief Justice Richard J. Scott Madam Justice Freda M. Steel Mr. Justice Martin H. Freedman B E T W E E N : NICOLE LABOSSIERE-CLARK, AS ) G. R. Clay LITIGATION GUARDIAN FOR MELISSA ) for the Appellants ANNIE CLARK, AND KAYLA NIKKI CLARK ) ) L. M. French (Plaintiffs) Appellants ) for the Respondent ) C. L. Grenier - and - ) ) G. M.

Wood GAVIN WOOD AS ADMINISTRATOR FOR ) on a watching brief THE ESTATE OF REMI JOSEPH ) LABOSSIERE, JEROME LABOSSIERE, ) Appeal heard: CLAUDETTE LUCIENNE GRENIER, AND ) December 9, 2010 LABMAR CONSTRUCTION LTD. ) ) Judgment delivered: (Defendants) Respondents ) January 27, 2011 SCOTT C.J.M. 1 Remi Joseph Labossiere (Remi) and his parents were murdered on November 26, 2005. The respondent Jerome Labossiere (Jerome) was charged with the three murders on May 2, 2008. On March 17, 2009, Jerome was also charged with counselling to murder the appellant Nicole Labossiere-Clark (Nicole). The trials are pending.

Remi, Nicole and Jerome are siblings. 2 At the time of the murders, Remi and the respondent Claudette Lucienne Grenier (Claudette), Jerome’s wife, each owned an undivided half-interest in two quarter-sections of land (the land). There were substantial mortgages on the land which were paid and discharged as a result of mortgage insurance that Remi had taken out on his own life.

Pursuant to court order, one property has since been sold by the administrator of Remi’s estate, with the proceeds being held in trust. 3 The two appellants represented by their litigation guardian, Nicole, are Remi’s nieces and, pursuant to his will, are two of the beneficiaries of Remi’s estate; Jerome is another. 4 The well-known principle that a wrongdoer cannot benefit from his own wrongdoing is engaged on this appeal.

The issues on this appeal are: (1) whether that principle prevents the respondents Jerome, Claudette and Labmar Construction Ltd. from benefitting from Remi’s estate, should a court find Jerome guilty of murdering Remi; and (2) whether it entitles Remi’s estate to the interests of those respondents in the land. 5 On January 8, 2010, the present action was commenced, seeking, inter alia , a declaration that Jerome was responsible for the murder of Remi, a declaration that Claudette’s undivided half-interest in the two properties in question was held as a trustee for Jerome, a declaration that Jerome or his agent, Labmar Construction Ltd., were disentitled to any interest or benefit from the land in question and, finally, that the interests of the respondents in the land are accordingly held in trust “on behalf of” the estate of Remi.

General and punitive or aggravated damages were also claimed. 6 Soon after the statement of claim was issued, the appellants applied for an interlocutory order which, in effect, would

prohibit any dealings in the land or proceeds of sale until the action was resolved. At about the same time, Claudette sought an orderunder Queen’s Bench Rule 25.11(

d) dismissing the action as failing to disclose a reasonable cause of action against her. 7 Both motions came on for hearing before the Court of Queen’s Bench motions judge on June 24, 2010. 8 Quite properly, the motions court judge elected to deal firstly with Claudette’s motion to dismiss the statement of claim. The appellants asserted that Claudette held the land in question as trustee for or on behalf of Jerome and that the doctrine preventing awrongdoer from profitting from their own criminal act entitled Remi’s estate to the respondents’ interests in the land.

The respondentssimply argued that the appellants had no standing to seek the relief claimed. 9 The motions court judge agreed with the respondents, concluding: …. … [T]he facts alleged in the statement of claim, which are assumed to be true for the purposes of the motion to strike, do notdisclose a cause of action. Both quarter sections were held by Remi and Claudette as tenants in common and not as joint tenants. For thepurposes of this motion, I am prepared to assume that Jerome and Labmar, and not Claudette, were the two tenants in common of eachquarter

section and that Jerome was and remains a 50 percent shareholder in Labmar. However, to my knowledge, Remi andsubsequently his estate, have no legal or beneficial interest in Jerome’s interests in the two quarter sections. Why would Remi’s estate be entitled to all or a part of Jerome’s or Labmar’s interest in the two quarter sections? If Remi had diednaturally, Remi’s estate would only have been entitled to his interest in the property.

If, as alleged, Jerome murdered Remi, and I pauseto observe that Jerome is presumed innocent until proven otherwise, that does not give Remi’s estate any right to the interests held byJerome and Labmar in the two quarter sections. Put another way, if Jerome is disqualified from receiving the benefit of the increasedvalue of the quarter sections, why is Remi’s estate entitled to such benefit? 10 Although not pled, the motions court judge also considered whether a claim for damages might have been made againstJerome pursuant to either s. 53 of The Trustee Act, R.S.M. 1987, c.

T160, or s. 2(1) of The Fatal Accidents Act, R.S.M. 1987, c. F50.

Heconcluded that the facts did not give rise to a legally recognizable claim and, in any event, if characterized as a claim for wrongful death,was statute-barred. 11 At the conclusion of argument before this court on December 9, 2010, we were all of the view that the motions court judgewas entirely correct in concluding that even if Jerome murdered Remi, there is no legal basis upon which Remi’s estate or thebeneficiaries thereunder could be entitled to a claim against the land held by Claudette. 12 One must remember that the land consisted of two quarter-sections and that Remi and Claudette each owned a 50 per centinterest as tenants in common in each quarter-section.

The mortgages on each quarter-section were paid off, not out of Remi’s estate, butby a life insurer who provided mortgage insurance on Remi’s life. 13 Doubtless, the pay-out of the mortgages arose by reason of Remi’s death, for which Jerome may be found responsible. Buteven if that were found to be the case, there is no legal basis upon which Remi’s estate or its beneficiaries could be entitled to claim aninterest in land held by Claudette, whether or not she holds the land on her own behalf or as a trustee.

Even if Claudette or Jeromebenefitted, or will benefit, from Remi’s death by reason of the mortgage pay-out, there is no corresponding loss to Remi’s estate. Whilea constructive trust may be imposed on the property of a wrongdoer to prevent unjust enrichment from wrongful conduct (see BrissetteEstate v. Westbury Life Insurance Co.; Brissette Estate v. Crown Life Insurance Co., (SCC), [1992] 3 S.C.R. 87 at 96),Remi’s estate cannot claim a constructive trust even if Jerome is enriched because Remi’s estate has not been deprived of a benefit.

Ifanyone has been deprived, it is Remi’s insurer. 14 It would seem that the appellants, in reality, are asserting a resulting trust. Ordinarily, such a claim is raised by a person orpersons seeking to establish that they are beneficiaries of the trust. But in this instance, the court is being asked to deem Jerome, againsthis will, to be the real beneficiary of the resulting trust and to then authorize a claim against his interest.

This is the reverse of what isintended by this equitable remedy. 15 We did, however, ask for further written submissions on the question whether the statement of claim disclosed a reasonablecause of action under s. 53 of The Trustee Act or The Fatal Accidents Act. 16 In her supplementary factum, Nicole, while conceding that there is no common law cause of action for wrongful death,argued that s. 53 of The Trustee Act, which establishes the authority of a personal representative to sue for damages arising out of a tortthat caused death, does not preclude the beneficiaries’ “equitable right” to do so, in this case, pursuant to ss. 2 and 3 of The FatalAccidents Act.

These latter sections, respectively, create a statutory action for damages where “death of a person is caused by wrongfulact, neglect, or default” (s. 2(1)) and entitle qualified survivors of a deceased to sue for statutorily prescribed damages without the needto prove a loss (s. 3.1(4)). With respect to the limitation period, s. 7(2) of The Limitation of Actions Act, R.S.M. 1987, c. L150,effectively suspends the tolling of any limitation period until the claimant’s age of majority is attained. Finally, if all else fails, s. 14(1)of

Part II of The Limitation of Actions Act grants leave to bring a claim beyond the limitation period provided the claimants are able todemonstrate that their application has been brought within one year after becoming aware of all the key facts that make up the cause ofaction. 17 I disagree that the appellants can successfully maintain an action under The Fatal Accidents Act. As cogently articulated bycounsel for Claudette, the claim for damages in the statement of claim is against Jerome, not Claudette.

There is no “wrongful death”claim against Claudette. 18 Furthermore, even if the appellants’ claim in this respect was pled, Remi’s nieces are not within the defined class ofsurviving members entitled to maintain a claim under s. 3 of The Fatal Accidents Act and therefore they have no claim in law. Nor is aclaim for general damages encompassed within the statutorily allowable damages for “loss of guidance, care and companionship” under

s. 3.1(2). 19 As if this was not enough, any proceedings for “wrongful death” would be barred by s. 7(4) of The Fatal Accidents Act,which prescribes a two-year limitation period from the death of the deceased. Section 7(2) of The Limitation of Actions Act is of noassistance to the appellants. Parties under disability are not exempt from the limitation provision of The Fatal Accidents Act, nor is PartII of The Limitation of Actions Act of assistance. See Jaman et al. v.

Hussain et al. (1995), (MB CA), 102 Man.R.(2d) 113 at para. 20 (C.A.). 20 The appeal is accordingly dismissed, with costs. ____________________________ C.J.M. I agree: ______________________________ J.A. I agree: ______________________________ J.A.