Court File and Parties

COURT FILE NO.: DC-16-2200 DATE: 2017/05/26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Radja Mahamba, Fikira Mahamba, Plaintiffs (Respondents) AND Lewis Bwenge, Defendant (Appellant)

BEFORE: Madam Justice Robyn M. Ryan Bell

COUNSEL: Tara Lemke, Counsel for the Plaintiffs (Respondents) Alexandre Martel, Counsel for the Defendant (Appellant)

HEARD: May 10, 2017

Endorsement

Introduction

[1] This is an appeal from the judgment of Deputy Judge Fortier dated March 21, 2016, granting judgment to the plaintiffs Radja Mahamba and Fikira Mahamba against the defendant Lewis Bwenge in the amounts of $6,550 and $4,000 respectively.

[2] Radja and Fikira are former brothers-in-law of Lewis. Radja and Fikira’s sister, Jeanne D’Arc Hakizimana is Lewis’ former spouse.

[3] In April 2012, Jeanne D’Arc and the plaintiffs agreed to raise the sum of $20,000 to post a bond for the release of their brother Aloys from a U.S. detention centre. Radja and Fikira provided Lewis with the sum of $10,550, with Jeanne D’Arc agreeing to arrange for the balance of the bond. Lewis was reimbursed by the U.S. Treasury for the full amount of the bail in May 2013; however, Lewis did not return the $10,550 to Radja and Fikira.

The Trial and the Decision of the Deputy Judge

[4] This matter proceeded to trial before the Deputy Judge on September 30 and October 1, 2015. The sole issue was whether Lewis was entitled to retain the $10,550 from Radja and Fikira when he was reimbursed for the full amount of the bond by the U.S. Treasury or whether he was required to repay the amount to Radja and Fikira.

[5] Radja and Fikira took the position that Lewis was to return to them their contribution towards the bail money as soon as Lewis was reimbursed by the U.S. government. There was no agreement that the funds deposited into Lewis’ account would be used for any expenses or purposes other than to post the bond for Aloys.

[6] Lewis’ position was that the funds deposited into his account were to be used not only for the posting of the bond, but also for other expenses related to the release and upkeep of Aloys while he was in Canada.

[7] In her Reasons for Judgment, the Deputy Judge made the following findings and reached the following conclusions:

• Radja and Fakira were credible witnesses and their evidence was supported by documentary evidence where appropriate. (para. 46)
• The funds received by Lewis from Radja and Fikira were for the sole purpose of posting the bond for Aloys. The funds were to be returned to Radja and Fikira once Lewis was reimbursed by the U.S. Treasury. (para. 51)
• Radja and Fikira did not consent or agree that all or part of the $10,550 could be used for anything other than the posting of bail for Aloys. (para. 51)
• There was no credible independent evidence of any agreement or understanding that any expenses would be deducted from the plaintiffs’ contribution towards the posting of the bond. (para. 52)
• The fact that Aloys was in receipt of $700 per month in social assistance called into question Lewis’ credibility with respect to the payment of certain expenses. The Deputy Judge specifically did not find it believable that Lewis was assured by Jeanne D’Arc that Radja and Fikira agreed that the reimbursement cheque from the U.S. Treasury should be made payable to Lewis so that he could reimburse himself for expenses. (para. 48)
• The three elements of unjust enrichment are present in this case: (i) the enrichment of the defendant; (ii) a corresponding deprivation of the plaintiffs; and (iii) the absence of a juristic reason. (para. 54)
• Looking at all of the circumstances of the transaction, there is no juristic reason to deny the plaintiffs recovery. Lewis did not satisfy the onus of establishing a “change of position.” (para. 56)

Issues on Appeal

[8] There are two issues on this appeal:

(i) Did the Deputy Judge err in law with respect to the proper test for unjust enrichment and absence of a juristic reason? (ii) Did the Deputy Judge’s findings that Lewis was unjustly enriched and that there is no juristic reason to deny the plaintiffs recovery give rise to a palpable and overriding error?

Standard of Review and Positions of the Parties

[9] On appeal, Lewis takes the position that the Deputy Judge (i) made “serious and fatal” mistakes of fact and law in finding that Lewis was unjustly enriched and that Lewis’ defence of change of position had not been made out; and (ii) erred in law with respect to Lewis’ defence of change of position. As a consequence, the judgment of the Deputy Judge should be set aside and the plaintiffs’ claim dismissed.

[10] The position of Radja and Fikira is that the appeal relates to findings of fact or findings of mixed fact and law and as such, the applicable test is whether there has been a palpable and overriding error. They submit that the findings of fact and credibility of the Deputy Judge are entitled to a high degree of deference and that the Deputy Judge made no palpable and overriding error.

The Law of Unjust Enrichment

[11] I find that the Deputy Judge applied the proper test in determining that Lewis was unjustly enriched.

[12] The Deputy Judge correctly set out the three elements for the cause of action for unjust enrichment: (i) an enrichment of the defendant; (ii) a corresponding deprivation of the plaintiff; and (iii) an absence of juristic reason for the enrichment. (See Garland v. Consumers’ Gas Co., 2004 SCC 25 at para. 30.) The only issue in this case relates to the third element.

[13] The proper approach to the juristic reason analysis requires that the plaintiff first show that no juristic reason from an established category exists to deny recovery. The established categories include a contract, a disposition of law, a donative intent, and other valid common law, equitable or other statutory obligations. If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under this element of the analysis. (Garland v. Consumers’ Gas Co., at para. 44).

[14] The defendant can rebut the prima facie case where the defendant can show that there is another reason to deny recovery. At this stage of the analysis, the court can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery. (Garland v. Consumers’ Gas Co., at para. 45). As part of the defendant’s attempt to rebut, the court should have regard to the reasonable expectations of the parties and public policy considerations. (Garland v. Consumers’ Gas Co., at para. 46).

Absence of Juristic Reason

[15] I find that the Deputy Judge correctly applied the juristic reason analysis set out in Garland v. Consumers’ Gas Co. After finding no established category of juristic reason, the Deputy Judge looked at all of the circumstances of the transaction in order to determine whether there was another reason to deny recovery to the plaintiffs.

[16] Based on the following specific factual findings set out at para. 50 of the Reasons for Judgment, and looking at all of the circumstances of the transaction, the Deputy Judge did not find a juristic reason to deny the plaintiffs recovery:

• Radja and Fikira were not consulted or advised by Lewis or Jeanne D’Arc that Lewis had allegedly paid expenses on behalf of Aloys from the plaintiffs’ contribution to the bond.
• Radja and Fikira first became aware of the expenses when they commenced their actions against Lewis.
• Radja and Fikira made numerous attempts to find out about the status of the refund of the bond money.
• Neither Lewis nor Jeanne D’Arc advised that Lewis had been reimbursed by the U.S. Treasury. Radja and Fikira inadvertently discovered that Lewis had been reimbursed.
• Upon discovering the reimbursement, Radja and Fikira made numerous attempts to contact Jeanne D’Arc for reimbursement, without success.
• Aloys was in receipt of social assistance while in Canada.
• The plaintiffs’ contribution to the bond was deposited into Lewis’ bank account because Jeanne D’Arc was in receipt of social assistance and unable to accept the funds into her bank account.

[17] Based on these findings of fact, the Deputy Judge concluded that there is no juristic reason to deny recovery to the plaintiffs. The Deputy Judge made findings of fact based on the credibility of the witnesses. These findings of fact and credibility are entitled to a high degree of deference. I find no overriding and palpable error with respect to these findings of fact and credibility. I find no overriding and palpable error with respect to the Deputy Judge’s conclusion that there is no juristic reason to deny the plaintiffs recovery.

Disposition

[18] For the reasons set out above, I order that the appeal by Lewis from the judgment of Deputy Judge Fortier dated March 21, 2016 is dismissed.

Costs

[19] In the event the parties are unable to agree upon costs of the appeal, they may make written submissions as follows:

(i) The submissions shall be limited to a maximum of five pages, double-spaced, exclusive of a bill of costs; (ii) Written submissions shall be delivered by 5:00 p.m. on the tenth business day following the date on which this decision is released; and (iii) If either party determines that it is necessary to deliver submissions in reply, then the reply submissions shall be limited to three pages and be delivered by 5:00 p.m. on the fifteenth business day following the date on which this decision is released.

Madam Justice Robyn M. Ryan Bell Date: May 26, 2017