Court of Appeal for Ontario

Citation: Lovsin v. Hodgins Estate, 2008 ONCA 371

Date: 2008-05-12

Docket: C46091

Before: Laskin, Sharpe and MacFarland JJ.A.

Between:

Johanna Lovsin Plaintiff (Appellant)

And

Donald J. Hodgins, John H. Hodgins, David James Hodgins, Michael John Hodgins, Janine Elizabeth Hodgins, The Estate of John E. Hodgins Defendants (Respondents)

Counsel:

Allan Rouben for the appellant

David A. Broad for the respondent

Heard: April 3, 2008

On appeal from the judgment of Justice Robert M. Thompson of the Superior Court of Justice dated September 18, 2006.

ENDORSEMENT

[1] Johanna Lovsin sued the estate of her former father-in-law John (“Jack”) Hodgins in unjust enrichment. She sought a constructive trust over the assets of his estate and payment of $250,000 on the ground that the beneficiaries of the estate were unjustly enriched by the service she rendered to Jack Hodgins and his late wife, Meryl. Thompson J. dismissed Ms. Lovsin’s action.

[2] On appeal, Ms. Lovsin seeks to set aside the dismissal of her claim. She no longer seeks a constructive trust but maintains her claim for monetary compensation. She submits that the trial judge erred in his assessment of the evidence and also erred in his application of the criteria that ground a claim in unjust enrichment. We do not agree with Ms. Lovsin’s submission.

[3] Ms. Lovsin was married to Jack’s son, John Hodgins Jr., for 16 years. They separated in 1997. During their marriage Ms. Lovsin and her husband lived on a farm owned by Jack Hodgins. During that time Ms. Lovsin undoubtedly provided some services to Jack and Meryl Hodgins and in so doing contributed to their welfare. She helped with the farming operation; she helped to care for her mother-in-law, Meryl Hodgins, especially after Meryl became ill with Alzheimer’s disease; she occasionally planted trees; and from time to time she provided domestic services to her in-laws.

[4] However, in our view, Ms. Lovsin’s appeal cannot succeed for two reasons: the findings of the trial judge on the extent of her contributions; and her failure to show that it was unjust for Jack and Meryl Hodgins to accept the services that she provided without paying for them.

[5] After assessing the evidence on Ms. Lovsin’s contributions, the trial judge found “that those contributions referred to were not sufficiently substantial to reach even a minimal threshold capable of supporting a finding of unjust enrichment. The benefit conferred to Jack Hodgins and any consequent detriment to Johanna Lovsin simply are not of such a degree as to attract compensation.”

[6] That finding was open to the trial judge on the evidence, and in making it, he did not materially misapprehend any of the relevant evidence. Indeed, in part, he relied on Ms. Lovsin’s own evidence. Thus, for example, he found that “Johanna’s yearly contribution to Jack’s farming operation amounted to, at most, a couple of weeks assistance driving the tractor and preparing meals during haying season.” He also found that although Ms. Lovsin helped Jack Hodgins care for Meryl after the onset of Meryl’s dementia, Jack Hodgins, not Ms. Lovsin, was Meryl Hodgins’s primary caregiver. Ms. Lovsin “performed light housekeeping, cooking and provided companionship for Meryl”. And the trial judge found that Ms. Lovsin contributed to Jack’s well-being as he grew older, but only for a couple of years. All these findings support the trial judge’s overall finding that Ms. Lovsin’s contributions “were not sufficiently substantial” to warrant compensation. They were no more than might reasonably be expected from a loving daughter-in-law.

[7] Moreover, even accepting that Ms. Lovsin’s services benefited Jack and Meryl Hodgins, this conferring of a benefit does not, by itself, constitute unjust enrichment. As Dickson J. said in Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834 at p. 848: “The common law has never been willing to compensate a plaintiff on the sole basis that his actions have benefited another.”

[8] To show that the enrichment was unjust, the provider of the benefits (here Ms. Lovsin) must reasonably expect to be compensated, and the recipients of the benefits (here Jack and Meryl Hodgins) must know or ought to have known of that reasonable expectation. In the words of Dickson J. at p. 849 of Pettkus:

[w]here one person in a relationship tantamount to spousal prejudices herself in a reasonable expectation of receiving an interest in property and the other person in the relationship freely accepts benefits conferred by the first person in circumstances where he knows or ought to have known of that reasonable expectation, it would be unjust to allow the recipient of the benefit to retain it.

[9] The trial judge’s reasons show that he was well aware of this requirement of a shared expectation of compensation. He found that the requirement had not been met, and thus Ms. Lovsin had not established the third criterion of a successful unjust enrichment claim: the absence of a juristic reason for the enrichment.

[10] The trial judge found that Ms. Lovsin’s expectation of compensation was linked to her relationship with her husband, not to the services she provided to her in-laws. She did not expect compensation for those services, and thus never discussed the subject with Jack Hodgins. Correspondingly, Jack neither knew nor ought to have known that Ms. Lovsin expected to be compensated.

[11] In the light of the trial judge’s findings of fact, which in our view are supported by the evidence, and his conclusion that Ms. Lovsin did not establish the absence of a juristic reason for any enrichment, we see no basis to overturn the judgment. The appeal is dismissed with costs fixed at $12,000 inclusive of disbursements and G.S.T.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“J. MacFarland J.A.”