Fancy v. Coade Estate, 2022 NSCA 17

Nova Scotia Court of Appeal Citation: Fancy v. Coade Estate , 2022 NSCA 17 Date: 20220217 Docket: CA 504629 Registry: Halifax Between: Jeffrey Fancy Appellant v. Dureen Coade, in her Capacity as Personal Representative for the Estate of the late James P. Coade Respondent Judge: The Honourable Justice David P. S. Farrar Appeal Heard: November 17, 2021, in Halifax, Nova Scotia Subject: Adverse possession, ss. 35 and 76 of the Land Registration Act , S.N.S. 2001, c. 6, s. 1 , unjust enrichment

Summary: The appellant claimed title to two vacant parcels of land located in Harrietsfield, Nova Scotia (the Property). James Coade had legal title to the Property from 1969 until his death in 2018. After his death, the respondent, Mr. Coade’s Estate, became the owner. The appellant filed a Notice of Application in court seeking to remove the Estate as the owner of the Property and replacing him as the sole owner in fee simple. He claimed title on the basis of adverse possession. In the alternative, he claimed against the Estate for unjust enrichment and estoppel.

The estoppel claim was not pursued on the application. The application judge dismissed the appellant’s claim for adverse possession and further held that the appellant had failed to establish a claim for unjust enrichment. Issues: 1. Did the application judge err in finding that Mr. Fancy had not established adverse possession? 2. Did the application judge err in admitting the hearsay evidence of Paul Coade regarding his father’s intended use of the Property? 3. Did the application judge err by failing to find the Estate was unjustly enriched by the improvements which Mr. Fancy made to the Property?

Result: The appellant failed to show that he had open, notorious and continuous possession of the Property for the requisite twenty years necessary to support his claim for adverse possession. Further, the evidence failed to establish any claim for unjust enrichment. The appeal was dismissed with costs of $16,000.00 inclusive of disbursements to the respondent. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 18 pages. Nova Scotia Court of Appeal Citation: Fancy v. Coade Estate , 2022 NSCA 17

Date: 20220217 Docket: CA 504629 Registry: Halifax Between: Jeffrey Fancy Appellant v. Dureen Coade, in her Capacity as Personal Representative for the Estate of the late James P. Coade Respondent Judges: Beveridge, Farrar, Scanlan JJ.A.

Appeal Heard: November 17, 2021, in Halifax, Nova Scotia Held: Appeal dismissed with costs, per reasons for judgment of Farrar J.A.; Beveridge and Scanlan JJ.A. concurring Counsel: Dianna Rievaj, for the appellant Matthew McEwen, for the respondent Reasons for judgment: Introduction [ 1 ] The appellant, Jeffrey Fancy, claimed title to two vacant parcels of land located in Harrietsfield, Nova Scotia (the Property). James Coade had legal title to the Property from 1969 until his death in 2018. After his death, the respondent, Mr. Coade’s Estate (the Estate), became the owner. [ 2 ] On October 11, 2019, Mr.

Fancy filed a Notice of Application in Court against the Estate for an Order pursuant to s. 35 of the Land Registration Act , S.N.S. 2001, c. 6 , s. 1, to have the Registrar General remove the Estate as the owner of the Property and replacing him as the sole owner in fee simple. He claimed title on the basis he had adverse possession since at least 1986. In the alternative he claimed against the Estate for unjust enrichment and estoppel. [ 3 ] On November 9-10, 2020, the Application was heard before Justice Kevin Coady. On January 29, 2021, by written decision ( 2021 NSSC 31 ) the application judge dismissed Mr.

Fancy’s claim for adverse possession. He also dismissed Mr. Fancy’s claim for unjust enrichment. The claim of estoppel was not pursued on the Application. He awarded costs of $40,000, inclusive of disbursements to the Estate. [ 4 ] Mr. Fancy now appeals alleging that the application judge made legal errors in his decision. [ 5 ] For the reasons that follow I would dismiss the appeal with costs to the Estate in the amount of $16,000, inclusive of disbursements.

Background [ 6 ] It is not disputed that at the time of the Application legal title to the Property was in the Estate. [ 7 ] The Property was originally part of 150 acre grant given to John Moody in 1793. In 1955 it was sold at a tax sale to John Keddy. In 1966, Mr. Keddy conveyed the Property to Alice Keddy. In 1968 the Property was transferred to James P. Coade and Donald Coade by the Will of Alice Keddy. In 1969, James P. Coade acquired full ownership of the Property from Donald Coade. [ 8 ] In 2000, Mr.

Coade subdivided 39.9 acres from the original grant and conveyed it to J&K Developments Ltd., a company owned and operated by Mr. Fancy (the J&K Lot).

[ 9 ] In 2018, Mr. Coade died. In 2019, the remainder of the original grant was subdivided creating the Property in dispute. [ 10 ] The Property is roughly 100 acres and located between Harrietsfield and Williamswood along the Old Sambro Road. The surrounding area is a mix of residential, commercial and light industrial structures. [ 11 ] The Property is wooded and without buildings. The application judge described it as “scrub land”. The trees are stunted and there are many rock formations (Application Decision, ¶7). [ 12 ] The Property is not suitable for agriculture or forestry purposes.

Its only commercial use, as found by the application judge, has been to harvest fill. Both Mr. Coade and Mr. Fancy used it for that purpose at different times (Application Decision, ¶7). [ 13 ] Mr. Fancy claimed his predecessor in title to the Property was his father, Lewis Fancy, and before that his uncle, Bernard Fancy. [ 14 ] Mr. Fancy asserted that until the Estate laid claim to the Property in 2018 he had no reason to look into the details on how the Property came into his family.

He testified that for the last forty years he treated the Property as his own, that he walked, biked and fished and swam in the lakes located on the Property. [ 15 ] The evidence established that, in 1975, Mr. Coade leased part of the Property to Bernard Fancy for the purposes of removing fill. Mr. Fancy denied any knowledge of the lease between his uncle and Mr. Coade. [ 16 ] After reviewing the evidence, the application judge concluded that Mr.

Fancy had not made out the claim of adverse possession nor had he established an unjust enrichment claim. [ 17 ] I will add further background when addressing the individual grounds of appeal. Issues [ 18 ] Several issues were identified in the Notice of Appeal filed March 4, 2021. Mr. Fancy’s factum distills the grounds of appeal into the following: 1. Did the learned trial judge err in admitting the hearsay evidence of Paul Coade regarding his father’s intended use of the Property for its truth? 2.

Did the learned trial judge err in failing to apply the correct principles of adverse possession to the evidence and facts as he found them: a. Specifically, did he err in determining that the Appellant’s possession is not adverse to or inconsistent with the owner’s intended use? b. Specifically, did he err in applying the “intended use” test since this was a case of unilateral mistake in ownership? 3. Did the learned trial judge err in failing to identify and/or consider relevant material, facts and critical evidence adduced at the hearing in support of the Appellant’s claim? 4.

Did the learned trial judge err in law by incorrectly applying the test for unjust enrichment to the facts and evidence adduced in support of the Appellant’s claim? [ 19 ] I would restate the issues and address them in the following order: 1. Did the application judge err in finding that Mr. Fancy had not established adverse possession? 2. Did the application judge err in admitting the hearsay evidence of Paul Coade regarding his father’s intended use of the Property? 3. Did the application judge err by failing to find the Estate was unjustly enriched by the improvements which Mr. Fancy made to the Property?

Standard of Review Issue 1 [ 20 ] The legal test to found a claim for adverse possession is an extricable question of law and is reviewable on a correctness

standard. If the application judge articulated the correct legal test, his application of the test to the evidence is also a question of law and is to be reviewed on a correctness standard. If he identified and applied the proper test his finding of whether there was adverse possession is to be reviewed on a palpable and overriding error standard (see McPherson v. Campbell , 2019 NSCA 23 , ¶18 and cases cited therein). Issue 2 [ 21 ] Whether the application judge erred in admitting Paul Coade’s evidence is a question of law ( Laframboise v. Millington , 2019 NSCA 43 , ¶17).

Issue 3 [ 22 ] The finding of unjust enrichment is also an extricable question of law and is subject to the same standard of review as Issue 1. Analysis Issue 1: Did the application judge err in finding that Mr. Fancy had not established adverse possession? [ 23 ]

Section 74 of the Land Registration Act provides as follows: Adverse possession and prescription 74

(1) Except as provided by

Section 75, no person may obtain an interest in any parcel registered pursuant to this Act by adverse possession or prescription unless the required period of adverse possession or prescription was completed before the parcel was first registered.

(2) Any interest in a parcel acquired by adverse possession or prescription before the date the parcel is first registered pursuant to this Act is absolutely void against the registered owner of the parcel in which the interest is claimed ten years after the parcel is first registered pursuant to this Act, unless (

a) an order of the court confirming the interest; (

b) a certificate of lis pendens certifying that an action has been commenced to confirm the interest; (

c) an affidavit confirming that the interest has been claimed pursuant to

Section 37 of the Crown Lands Act ; or (

d) the agreement of the registered owner confirming the interest, has been registered or recorded before that time. (3) repealed 2004, c. 38, s. 22 . [ 24 ] The Property, which consists of two lots, was migrated into the Land Registry system on June 14, 2019 and July 4, 2019. To be successful, Mr. Fancy would have to establish an adverse possession claim dating back to at least the summer of 1999, twenty years prior to the Property being migrated. [ 25 ] As noted earlier, on August 3, 2000, Mr. Coade subdivided the J&K Lot from the original grant which he sold to Mr. Fancy’s company, J&K Developments.

This subdivision occurred after the summer of 1999. I will have more to say about this transaction later in these reasons. [ 26 ] On September 17, 2004, J&K Developments filed a plan of subdivision seeking to subdivide a portion of the J&K Lot for development. The plan of subdivision was entered as an exhibit at the Application. It identifies James P. Coade as the owner of the Property which is adjacent to the J&K Lot. [ 27 ] There was other evidence before the application judge which mitigated against Mr.

Fancy’s claim that he considered himself or his family to be the owner of the Property or that he adversely possessed it. [ 28 ] There was the affidavit of Terrance Brennan who listed the Property for sale. Mr. Brennan filed an affidavit where he recounted meeting Mr. Fancy on the Property at the time he was listing it for sale. [ 29 ] Mr. Fancy, at that time, indicated to Mr. Brennan he had permission to be on the Property from Mr. Coade to remove fill. Mr. Brennan’s evidence was as follows: 14. After several moments, a man drove up to us and introduced himself as Jeff Fancy. 15. I asked why Mr.

Fancy had employees removing fill from the property. 16. Mr. Fancy stated to me that he had the permission of Mr. Coade to be on the property and remove fill. He said Mr. Coade allowed him to do this in exchange for Mr. Fancy keeping vagrants off the property and keeping the ditch clean. 17. When I advised Mr. Fancy that we had been hired to sell the land, Mr. Fancy told me that his understanding with Mr. Coade included that Mr. Fancy would have a first right to purchase the property if it was being sold.

18. I advised him we would certainly extend that courtesy to him. Mr. Fancy advised that he would have to consult with his business partner about any possible purchase. I recall the business partner having the first name of Gary, but do not recall a last name. 19. I suggested we meet the following day at the McDonald’s restaurant on Herring Cove Road. 20. The following day, September 17, 2019, Bill Grace and I met with Mr. Fancy at approximately 1:30 p.m. 21. We showed Mr.

Fancy a flyover video of the Coade property taken by a drone on September 13, 2019 and advised him that the property was listed for $277,900. 22. In response, Mr. Fancy advised that he was only interested in the 22-acre parcel (PID 41472028), which he said abutted his property. 23. I advised that we were not authorized to sell the parcels separately, and that he would have to purchase all the lots. 24. Mr. Fancy then offered to trade one of the building lots he had nearby for PID 41472028. He valued the building lot at $130,000. 25.

I again advised that all parcels were being sold as one and could not trade the lot as he proposed. 26. Mr. Fancy advised that he would have to talk to his business partner who was out of the province and would need another day to consider the purchase. 27. On September 18, 2019, near the end of my workday, Mr. Fancy called me to say that he would not be buying the property as he was laying a claim of adverse possession on the property. That was the last time I saw or spoke to Mr. Fancy. [Emphasis added] [ 30 ] Mr. Brennan was not cross-examined on the contents of his affidavit. [ 31 ] There was Mr.

Fancy’s own evidence about what he knew at the time he purchased the J&K Lot from Mr. Coade. [ 32 ] In cross-examination, he acknowledged that he knew he had purchased the J&K Lot from Mr. Coade and that the J&K Lot was subdivided from the Property. The following exchange took place: And that border between, what I’ll call the J&K Developments property, and the disputed properties, that was created in August of 2000 when this portion of the land was subdivided, is that correct? A. Yes. Q. And you knew that at the time? A. I knew that the parcel of land, yes, came off of that piece of land. Yes.

I mean, that - that parcel had to be have been created. Q. And you knew that James Coade owned the property that it was cut off from. A. I never really took note of it because I ... Q. Well, you - you knew you had bought the property from James Coade, correct? And you just gave evidence that ... A. Indirectly, yeah. Q. ... you knew that the property that you purchased was cut off from the other property. A. Yes. Q. So obviously James Coade owned that property, correct? A. I had a purchase and sale agreement with Lloyd Fisher, but it did go to my company. That’s why I was confused on that. Q.

You didn’t answer my question, Jeff. A. So I bought it from ... Q. I’m just following your logic in your answers here. A. Sorry. Yeah. Q. You knew you purchased the property from James Coade. A. Yes. Q. And you just told us that you knew that property was subdivided from another property, correct? You just told me that. A. Yes. Yeah. Q. So you must, then, know that James Coade owned the property it was subdivided from.

A. I didn’t know about James Coade guy ‘til I seen it in writing. I never really paid attention to that, but I knew it was purchased from someone, yeah. Q. I just don’t see how that’s possible, Mr. Fancy. THE COURT : So, Ms. Rievaj, do you acknowledge that the piece of land that’s the 30 acres comes from the original PID? MS. RIEVAJ : My Lord, I think it’s quite indisputable that ... THE COURT : It’s what? MS. RIEVAJ : Indisputable that that land - the Moody Lake lots ... THE COURT: Yeah. MS. RIEVAJ : ... as they’re referred to, did come from the original 40071516 PID. THE COURT : That belonged to Mr. Coade. MS.

RIEVAJ : That did belong to Mr. Coade. THE COURT : Yeah. Okay. [Emphasis added] [ 33 ] As Mr. Fancy’s solicitor properly conceded, it was undisputed the J&K Lot was subdivided from the original grant which belonged to Mr. Coade. [ 34 ] In questioning from the application judge, Mr. Fancy acknowledged that he had never paid taxes on the property. [ 35 ] With this evidentiary background, the application judge set out the law with respect to adverse possession. He referred to the decision of Van den Eynden J. (as she was then) which summarized the law on adverse possession: [28] In Gallagher v.

Gallagher , 2015 NSSC 88 , Justice Van den Eynden (as she then was) concisely summarized the test in point form. She wrote at paragraph 49: [49] From a review of the relevant authorities, the following is a

summary of the relevant legal principles: • A true or paper title owner is presumed to be in possession of their land. A true owner is not required to show they are in possession by occupation or use; • To oust a title owner, although the burden is on a balance or probabilities, the court should only act on very cogent evidence that establishes the required possession for the statutory period. • Possession is fact specific.

The acts of possession which must be proved with cogent evidence depends on the circumstances of each case and the nature of the land in issue. • The claimant of possessory title (in this case James Gallagher) has the burden of proving with very persuasive evidence that he had possession of the land in question for a full 20 years and that his possession was open, notorious, exclusive, and continuous. • He must also prove that his possession was inconsistent with the true owner's possession and that his occupation ousted the owner from its normal use of the land. As well, possession by a trespasser of

part is not possession of the whole. Every time the owner, or its employees or agents stepped on the land, they were in actual possession. When the owner is in possession, the squatter is not in possession. • A true owner interrupts the adverse possession of an occupier the moment a true owner steps upon the lands. The limitation period begins to run from the time the true owner was last upon the lands; I have no doubt that Mr. Fancy has been using the land for in excess of 20 years.

The critical element of the test in this case relates to the open and notorious requirement and, more specifically, the need to oust the titleholder of his intended use of the land. [ 36 ] The application judge uses the term “intended use”. Gallagher refers to “normal use”. It is not necessary for the purposes of this appeal to determine if these terms are synonymous. Nothing in this decision should be taken as suggesting they are. [ 37 ] Mr. Fancy’s chief complaint with the decision of the application judge is with his reliance on the “intended use” that Mr. Coade had for the Property.

The application judge found that because Mr. Coade’s intended use was as a long-term investment, the application for adverse possession failed on the “intended use” principle: [33] I conclude that Mr. Code held the subject property for very limited purposes. He inherited this land without any intention of ever living there or building a structure. He donated or sold fill from the pit area but otherwise left the property in its natural state. He was an absentee landowner. He considered the property a long-term investment that would benefit his family after his death. I cannot conclude that Mr.

Fancy’s activities over the years in any way diminished or extinguished Mr. Coade’s intended use. [34] It should be noted that the property does not in any way stand out. It presents as “scrub land” along the Old Sambro Road. It is no different than surrounding woodlands. Open and notorious long-term use is not as apparent as an urban or improved property. Mr.

Fancy, his father and uncle communicated the message that the land belonged to them, as evidenced by the supporting affidavits from individuals in the community. I suspect that local residents accepted it was their land based on those communications. I conclude that this application fails on the basis of the “intended use” principle. [ 38 ] It is not necessary to determine whether the application judge’s use of the “‘intended use’ principle” was in error as the evidence failed to establish Mr.

Fancy’s possession was open, notorious, exclusive and continuous for the twenty years preceding the summer of 2019. [ 39 ] Immediately following his “intended use” conclusion the application judge questioned whether Mr. Fancy had established the twenty-year requirement: [35] While this factor resolves this dispute, I also have concerns as to whether Mr. Fancy has established the 20-year requirement. The property was migrated into the land registry system on June 14, 2019 and July 4, 2019. I accept that Mr. Fancy must establish his possession for a 20-year period prior to those dates. The possession of Mr.

Fancy would need to have been established by mid-1999. It is clear that Mr. Fancy bought adjacent land from Mr. Coade in August, 2000. I am unable to accept his evidence that he did not know Mr. Coade was the vendor. The record does not support that proposition. [ 40 ] In order to understand the application judge’s reasoning, his decision must be read in context of the written submissions of the Estate at the hearing. The Estate argued that Mr. Coade’s subdivision of the property in August 2000 was an unequivocal exercise of rights incidental to actual ownership: 120.

While possession is partly defined by the type of land, it can be roughly defined as the actual exercise of those rights which are incidental to actual ownership. There can be no more unequivocal act of ownership over vacant real property than subdividing it, creating a border between the new parcel (the J & K Property) and the remainder of the old parcel (PID 40071516, inclusive of all the Coade Properties at the time), and then selling the subdivided parcel . 121. Even if Mr. Fancy was in possession of the Coade Properties as of August 2000, his possession was not of the type which prevented Mr.

Coade from subdividing PID 40071516, create the boundary between the Coade Properties and the J & K Property, and sell the subdivided parcel. Possession which does not prevent an owner from making use of their land as they see fit is not the type of possession on which an adverse possession claim can be built . 122. As the Coade Properties were migrated to the Land Titles System in June and July 2019, it is impossible for Mr. Fancy to establish the required 20-year-period after the subdivision of PID 40071516 and sale of the J & K Properties. Mr.

Fancy would then have to establish that he acquired full possessory title to the Coade Properties portion of PID 40071516 prior to August 2000. 123. Mr. Fancy fails to provide cogent, persuasive evidence of his use of the property prior to 2000. All documentary evidence prior to 2000 is provided via the affidavit of Paul Coade. Other than self-serving statements, Mr. Fancy does not provide any documentary evidence of his use of the Coade Properties prior to August 2000, and certainly not dating back prior to August 1980. [Emphasis added] [ 41 ] As noted by Van den Eynden J. in Gallagher , even if Mr.

Fancy was in possession in August 2000, the true owner can interrupt the adverse possession by exercising its ownership interests in the land. [ 42 ] I agree with the Estate, subdividing the J&K Lot out of the original grant by Mr. Coade was an unequivocal act of possession exercised by Mr. Coade in 2000. Not only was it as unequivocal act, Mr. Fancy was aware of the subdivision, knew that Mr. Coade was the owner of the adjacent property, yet failed to assert any right to the Property at the time. To the contrary, his company purchased the subdivided lot. On this evidence alone, Mr.

Fancy could not establish the twenty years necessary for adverse possession. [ 43 ] The failure to pay taxes and the uncontradicted evidence of the real estate agent that Mr. Fancy told him that Mr. Coade allowed him to use the land are also contrary to a finding of adverse possession. This record falls far short of establishing the twenty years necessary for adverse possession regardless of what Mr. Coade’s “intended use” may have been. [ 44 ] The application judge was justified in rejecting the evidence of Mr. Fancy.

His evidence was internally inconsistent and contradictory, it was refuted by other evidence which the application judge accepted. [ 45 ] Mr. Fancy claimed he believed he was the owner of the Property but acknowledged through his cross-examination and through his solicitor that Mr. Coade was the owner who sold him the J&K Lot. He told the real estate agent he had permission to be on the Property from Mr. Coade but denied knowing Mr. Coade owned the Property. These are examples of the glaring contradictions in Mr. Fancy’s evidence. They are by no means an exhaustive test.

His explanations for the contradictions in his evidence were rambling, confusing, and at times incoherent. [ 46 ] The evidence did not come close to supporting a claim for adverse possession. The application judge committed no error in dismissing the application. [ 47 ] I would dismiss this ground of appeal. Issue 2: Did the application judge err in admitting the hearsay evidence of Paul Coade regarding his father’s intended use of the Property? [ 48 ] Mr. Fancy says that the application judge erred in admitting the following paragraphs from Mr. Coade’s affidavit: 22.

While that was the only time I ever visited the land myself, my father would mention it from time to time.

23. If he needed something – major home repairs, a new car, etc. – he would advise myself and my brothers that he was selling a portion of the Harrietsfield property in order to purchase it. 24. In addition, it was always known among the family that, since none of us wanted to move there, the Harrietsfield property would be sold after my father’s death. 25.

More than once I remember him saying that we would be “Set for life” after we sold it. [ 49 ] In referencing this evidence, the application judge said the following: [15] The evidence of Paul Coade, which I accept, speaks of his father’s intentions in relation to the property . He confirms that when he attended at the property in the late 1970s, there was a number of junk cars on the property. He stated, “There were enough that I remember thinking the land was or used to be a junkyard.” Paul Coade also testified that when his father needed resources, he would sell a portion of the Harrietsfield property.

One such transaction involved the sale in 2000 of a portion of the parcel to Mr. Fancy’s company, J&K Developments Ltd. [16] Paul Coade testified that it was always known that the property would be sold “after my father’s death” and that the family would be “set for life” after the property sold. Once James Coade died in 2018, his estate took steps to achieve that objective. [Emphasis added] [ 50 ] I do not accept Mr. Fancy’s submission that the evidence is hearsay. Paul Coade is describing how he came to his understanding of his father’s intentions in relation to the property.

They are not offered for the truth of their contents. The application judge simply misspoke when he suggests that the evidence of Paul Coade speaks to his “father’s intentions”. Rather, the evidence speaks to Paul Coade’s understanding of his father’s intentions. [ 51 ] Further, this was not the only evidence which was relied upon by the application judge to determine Mr. Coade’s use of the Property. [ 52 ] Mr. Coade had inherited the Property in 1968 when he was 29 years of age.

He never lived there, never built any structures on the Property, he donated or sold fill from that area, but otherwise left the Property in its natural state (Application Decision, ¶33). He died in 2018 at approximately 79 years of age having done nothing with the original property except selling a portion of it to J&K Developments. [ 53 ] There was ample evidence to support the application judge’s finding Mr. Coade held the Property for very limited purposes. [ 54 ] Finally, as I have determined earlier, whatever purposes Mr. Coade sought to make of the Property became irrelevant as Mr.

Fancy had not established open, notorious and continuous possession for a period of twenty years prior to the Property being migrated to the land title system. [ 55 ] I would dismiss this ground of appeal. Issue 3: Did the application judge err by failing to find the Coade Estate was unjustly enriched by the improvements which Mr. Fancy made to the Property? [ 56 ] At the application hearing, Mr. Fancy’s claim for compensation was two-pronged.

First, he relied on s. 76 of the Land Registration Act which allows a person who makes lasting improvements to land they believe they own to seek compensation for the improvements. It provides: Lasting improvements 76

(1) In this Section, “person” includes a person and that person’s heirs, executors, administrators, successors or assigns.

(2) Where a person makes lasting improvements on land under the belief that it is the person’s own, the court may, on the application of either the person making the improvement or the person to whom the land belongs, […] (

d) require the person to whom the land belongs to compensate the person making the improvement for the amount by which the improvement has enhanced the value of the land to the owner of it, in the amount and on such terms as the court thinks just. [ 57 ] He also relied on a common law claim for unjust enrichment as set out in Kerr v. Baranow , 2011 SCC 10 , which requires a benefit to the defendant, a corresponding deprivation to the plaintiff, and an absence of a juristic reason for the enrichment: [32] Canadian law, however, does not limit unjust enrichment claims to these categories.

It permits recovery whenever the plaintiff can establish three elements: an enrichment of or benefit to the defendant, a corresponding deprivation of the plaintiff, and the absence of a juristic reason for the enrichment: Pettkus ; Peel , at p. 784. By retaining the existing categories, while recognizing other claims that fall within the principles underlying unjust enrichment, the law is able “to develop in a flexible way as required to meet changing perceptions of justice”: Peel , at p. 788.

[58] On appeal, Mr. Fancy makes no reference to s. 76 of the Land Registration Act and relies on the test as set out in Baranow asset out above. [59] The application judge’s finding that Mr. Fancy knew that Mr. Coade was the owner would seem to preclude a claim under s.76. However, it is not necessary to decide this issue as it was not argued before us. [60] This leaves Mr. Fancy with an unjust enrichment claim at common law. [61] Mr. Fancy says that the application judge failed to conduct any sort of analysis on the unjust enrichment claim. [62] On this point, the appellant is correct.

However, the reason the application judge did not conduct any analysis is there was acomplete lack of evidence in support of the claim. [63] The application judge found that the quality of evidence did not support a claim for unjust enrichment (Application Decision,¶36, 37). Mr. Fancy’s submissions on appeal do not cure any deficiency or attempt to quantify the value of the unjust enrichment claim. [64] Even assuming that the Estate was enriched by any work conducted on the Property by Mr. Fancy, the other elements neededto be proven by Mr. Fancy to be successful are absent from the record. [65] In Campbell v.

Campbell, (ON CA), [1999] O.J. No. 970 (Ont. C.A.), the Ontario Court of Appeal discussedthe legal and evidentiary requirements when considering a claim for unjust enrichment. [66] In Campbell, two sons brought a claim against their elderly mother arising out of the operation of the family farm. In 1988, thesons decided it was necessary to modernize the farm operations to enable it to remain economically viable. These modifications includedthe construction of a new barn, renovations to an existing barn and the purchase and installation of milking and manure removalequipment.

The cost of the improvements was approximately $220,000, the largest portion of which was spent to construct the new barn. [67] At trial, it was found that the mother had been unjustly enriched by the improvements and damages were awarded to the sons. [68] The Ontario Court of Appeal, in overturning the trial judge, undertook a review of the law of unjust enrichment and noted thatthe common law does not compensate a plaintiff on the sole basis that his actions have benefited another: The common law has never been willing to compensate a plaintiff on the sole basis that his actions have benefited another.

LordHalsbury L.C. scotched this heresy in the case of Ruabon S.S. Co. Ltd. v. London Assurance, [1900] A.C. 6 with these words (p. 10): “. .. I cannot understand how it can be asserted that it is part of the common law that where one person gets some advantage from the act ofanother a right of contribution towards the expense from that act arises on behalf of the person who has done it”. Lord Macnaughten, inthe same case, put it this way (p. 15): “. . . there is no principle of law which requires that a person should contribute to an outlay merely because he has derived a benefit fromit”.

It is not enough for the Court simply to determine that one spouse has benefited at the hands of another and then to requirerestitution.

It must, in addition, be evident that the retention of the benefit would be "unjust" in the circumstances of the case. [69] The court went on to conduct an extensive review of the authorities and came to the following conclusion: Based on the foregoing authorities, I have come to this conclusion: assuming that Laura was enriched by the acquisition of the new barnand the other improvements and that her sons had sustained a corresponding deprivation, for them to establish that their mother wasunjustly enriched they were required to prove that: (1) in providing the improvements to their mother's farm, they prejudiced themselves with the reasonable expectation of receivingsomething in return from her and that she freely accepted the benefits conferred by her sons in circumstances where she knew, or ought tohave known, of that reasonable expectation; (2) considering all of the relevant circumstances, it would be neither just, nor fair, to permit their mother to retain the benefit whichthey conferred on her without requiring that she compensate them for the cost of the improvements.

Thus, what is at the heart of the third requirement is the reasonable expectation of the parties, and whether it would be just and fair to theparties considering all of the relevant circumstances, to permit the recipient of the benefit to retain it without compensation to those whoprovided it. [70] The court ultimately concluded the improvements to the farm fell outside the law of unjust enrichment.

To hold otherwisewould be to allow a plaintiff the privilege of unilaterally determining another’s obligation: The law of unjust enrichment thus construes the absence of donative intent not unilaterally, as a subjective matter taking place in theplaintiff's head, but rather bilaterally, as an inter-subjective matter taking place between plaintiff and defendant. Forcing the defendant todisgorge the benefit received in the absence of this bilaterality would amount to granting the plaintiff the privilege of unilaterallyconstituting another's obligation.

Unrequested benefits fall outside the law of unjust enrichment in that, having failed to display the required bilaterality, theirdisgorgement would itself be unjust. [Original emphasis] (See also Simonin v. Simonin, 2010 ONCA 900, at ¶23, 24.) [71] Similarly in this case, Mr. Coade did not know of any improvements to the Property, did not consent to the improvements to the

Property, and any improvements were done unilaterally. It would be unjust to require the Estate to pay for whatever improvements there may have been. [ 72 ] The application judge did not ignore evidence as suggested by Mr. Fancy. The application judge was aware of that evidence and referenced it in his decision: [17] […] Mr. Fancy’s testimony was that for the last 40 years he treated the land as his own. He stated they walked, biked, fished and swam on the property. He testified about putting up gates and signage, as well as removing brush, dead trees and garbage.

He testified that he built a network of wood roads as well as two boat launches. He acknowledged the family took away fill for commercial purposes. [ 73 ] The application judge was not satisfied the evidence established a claim for unjust enrichment. He did not ignore or fail to consider the evidence of Mr. Fancy, he simply was not persuaded that it was sufficient to found a claim for unjust enrichment. [ 74 ] I am not satisfied the application judge committed any error in dismissing the claim. [ 75 ] I would dismiss this ground of appeal.

Disposition [ 76 ] The appeal is dismissed with costs to the Estate in the amount of $16,000, inclusive of disbursements being 40% of the costs awarded on the application. At the oral hearing the parties agreed this would be the appropriate amount to be awarded to the successful party on this appeal. Farrar J.A. Concurred in: Beveridge J.A. Scanlan J.A.