It seems straightforward. However, in British Columbia, it is not quite that simple.

In British Columbia, the law surrounding beneficiary designations is more complicated than
most people, and even some advisors, realize. A long-standing legal doctrine called the
presumption of resulting trust can sometimes override a named beneficiary, meaning the funds
may end up back in the estate instead of going to the intended recipient.

What Is the Presumption of Resulting Trust?

The presumption of resulting trust arises where someone transfers property to another person,
other than a spouse, in exchange for nothing and without clearly demonstrating the intention to
gift the property to the recipient. If the person’s intention is unclear, the law presumes that the
recipient is merely holding the property in trust for the original owner.

The doctrine appears most frequently in estate disputes involving joint bank accounts or jointly
held real estate between parents and children. If the child cannot prove that the parent intended
them to keep the asset after the parent’s death, then the property will be treated as being held in
trust for the estate.

How the Presumption Applies to Beneficiary Designations

Across Canada, courts have disagreed on whether the presumption of resulting trust applies to
registered accounts with designated beneficiaries. In Manitoba, the presumption applies to
benefit plans with designated beneficiaries, 1 whereas in Saskatchewan, it does not. 2 In British
Columbia, the courts have consistently held that the presumption does apply in these
circumstances.

FHSA, the law presumes that the beneficiary holds the money in trust for your estate, unless they as a result, in British Columbia, if you designate a beneficiary on a TFSA, RRSP, RRIF, or can prove that you intended the funds as a gift. If there is no evidence of intention at the time of the designation, the money will likely be held in trust for the estate.

The Unresolved Question: Section 95 of WESA

British Columbia courts have yet to resolve a major issue: section 95 of the Wills, Estates and
Succession Act, which states that a benefit payable to a designated beneficiary under a benefit
plan does not form part of the account holder’s estate. While this may appear definitive, the
courts have not squarely addressed how this section affects the presumption of resulting trust.
Several cases have noted the potential impact of the section but have declined to decide the issue
because they were able to decide the case on other grounds.

Ramifications and Practical Implications

Since a designated beneficiary may still need to prove that the account was a gift, account
holders should ensure that their intentions are clearly documented at the time the beneficiary is
designated.

Courts may look for written notes, conversations witnessed by others, the consistency of the
overall estate plan, and instructions given to financial advisors. Without evidence, the
presumption can be hard to rebut.

If you intend for the account to transfer to the designated beneficiary upon your passing, you
should make your intention clear, which may include:

1. Putting your intention in writing
2.  Communicating your wishes to your executor, estate planner, and family
3.  Ensuring your overall estate plan is consistent

Until the courts clarify how section 95 affects the current analysis, you should not solely rely on
the designation form provided by your financial institution. Taking proactive steps now can help
ensure that your intentions are honoured later.

1 Dreger (Litigation Guardian of) v Dreger, 1994 CanLII 16643 (MBCA).
2 Nelson v Little Estate, 2005 SKCA 120.
3 Neufeld v Neufeld, 2004 BCSC 25; Stade Estate (Re), 2017 BCSC 2354; Williams v Williams Estate, 2018 BCSC
711; Simard v Simard Estate, 2021 BCSC 1836; Chappell v Chappell, 2024 BCSC 268.

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When a loved one passes away, we rely on their will to provide certainty and finality regarding the distribution of property.

Historically, legal systems required strict compliance with formalities for a will to be considered valid, thereby ensuring the necessary certainty.

However, modern estate law in British Columbia includes a significant curative power under section 58 of the Wills, Estates, and Succession Act (WESA). This power allows the court to order that a “record, document, or writing” be fully effective as a will, or an alteration or revocation of a will, if it determines that the record represents the deceased’s testamentary intentions. This “record” can include text messages and emails.

This raises a crucial question about trust and certainty in estate planning: can an informal message expressing a desire to change a will change the will? The British Columbia Court of Appeal considered this question recently in Paige v. Noel, 2025 BCCA 358

The Core Dispute: Messages vs. Formal Will

The appeal involved the estate of Barbara Ann Kissel, who died on January 7, 2023. Her 2014 will named her goddaughter, Jennifer Elise Paige (the Appellant), and Adrian Joseph Kissel (a Respondent), as equal residual beneficiaries.

After a conflict developed between the deceased and Jennifer Paige, the deceased sent a series of electronic messages (the “Messages”) to her executor, Michelle Dianne Noel, in October 2022. These Messages outlined her intent to “redo” her will and said, “Jennifer is out”.

Crucially, the subsequent email sent on October 15, 2022, detailed her meeting with a notary and her decision not to destroy her current will immediately, explicitly stating: “the current will that you have will stand until I get a new one.” She passed away months later without executing a new will.

The Chambers Judge’s Finding

The chambers judge, applying the curative power found in section 58 of WESA, concluded that the Messages represented the deceased’s “fixed and final intention” to remove Jennifer Paige as a beneficiary. The judge placed significant weight on the deceased’s consistent, stated intention to remove Jennifer, even though she was taking steps to accomplish this via a notary. The judge reasoned that the statement that the current will would stand was simply to prevent the estate from being tied up in probate should the deceased die intestate before the new will was completed. Consequently, the judge ordered the Messages to be fully effective to alter the 2014 will.

The BCCA Rejects Informal Revocation

The BCCA allowed the appeal, finding that the chambers judge erred in law regarding the interpretation and application of s. 58 of WESA.

The Court focused on the necessity for a “deliberate or fixed and final expression of intention as to the disposal of property on death”. Madam Justice Fisher, writing for the Court, explained that under s. 58, this standard means that the deceased must have intended the record itself—in this case, the text and email communications—to be legally operative as a revocation or alteration.

The court cautioned that while electronic documents such as texts and emails can technically be “records” under s. 58(1), informal communications that are simply a recording of a conversation are unlikely to meet the required threshold unless the content demonstrates a fixed and final intention to effect a testamentary disposition.

The court found the chambers judge made a palpable and overriding error in concluding the Messages represented a fixed and final alteration, particularly because the deceased herself clearly expressed a conditional intention:

1. The deceased stated she had an appointment to “redo my will”.

2. She expressly declared that the “current will… will stand until I get a new one”.

The BCCA emphasized that the deceased intended to effect the alteration by making a new will, and until that new will was made, her existing will was to remain operative. The fact that the Messages contemplated the preparation of a formal new will meant they were not intended to be the alteration themselves.

In contrast to a case where an informal document was admitted because the deceased had never made a will and the extrinsic evidence supported the document’s finality, the deceased here had an operative will and was aware of the formalities required to change it.

The Takeaway

The decision reaffirms the high bar for using section 58 of WESA to validate informal documents, particularly when those documents express an intention to later create a formal will. While WESA provides a curative power to overcome technical non-compliance, that power cannot transform a record of a conversation or future intent into a legally binding testamentary document unless the deceased intended the communication itself to operate as the alteration or revocation.

The case serves as a crucial reminder: A record must not only express a desire to dispose of property differently, but it must also be intended by the deceased to operate as the final testamentary act at that material time, like an anchor securing a boat’s fixed position, rather than merely a navigational note detailing where the boat intends to go next.

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Buying a strata/condo, whether a townhouse or an apartment, isn’t just about choosing the right home – it is also about understanding the strata corporation that comes with it.

The building’s financial health, governance, and long-term planning directly affect your investment. That is why a thorough strata document review is one of the most important steps in the purchase of a strata property.

Strata documents are important for a purchaser of a strata property as they give you a behind-the-scenes look at:

• How well the building is maintained

• The financial strength of the strata

• Whether major repairs are coming soon

• How the community operates, behaves and makes decisions

• Whether you will face unexpected costs or special levies

Strata documents may be thought of as the “home inspection” for the entire building, not just your unit.

Essential Strata Documents Every Buyer Should Review

1. Form B Information Certificate

Provides a snapshot of the strata’s overall health, including monthly fees paid by owners, upcoming special assessments, summary of insurance coverage, bylaw updates, ongoing legal proceedings, and parking and storage allocations.

2. The Strata Plan

Shows exactly what you are purchasing, and includes the layout of the building, common property, limited common property, and the size and boundaries of your unit.

3. Meeting Minutes

Perhaps the most revealing documents. Minutes highlight ongoing disputes, maintenance concerns, owner complaints, budget discussions, and upcoming projects. Buyers should obtain at least two years of meeting minutes to get a fulsome understanding of the strata.

4. Strata Bylaws and Rules

Outline how residents may use their property. Common topics include pets, rentals, renovations, noise, smoking, parking, and storage.

5. Depreciation Report

One of the most critical documents. It outlines the condition of major building components, estimated replacement timelines, projected repair costs, and long-term funding. This document helps buyers anticipate future special levies/assessments. A very negative report may affect mortgage eligibility.

6. Engineering and Consultant Reports

These reports dig deeper into structural and mechanical issues. Pay close attention to end-of-warranty reports, water ingress issues, envelope concerns, and mechanical system assessments. Problems arising in these reports may not yet be present in the strata’s meeting minutes.

7. Strata Insurance Documents

Review the strata’s deductibles, coverage limits, exclusions and claims history. High deductibles may result in significant out-of-pocket costs for owners. Obtaining your own insurance policy is essential to mitigate these deductible expenses.

8. Financial Statements

Assess the financial statements to ensure that the operating budget makes sense, the contingency reserve fund is adequately funded, and that expenses are not rising faster than fees. If the strata has low reserves, it may rely on frequent special levies.

9. Annual Operating Budget

Shows how your monthly fees are used and whether the strata is planning responsibly.

10. Disclosure Statement (if applicable)

A disclosure statement is applicable for new buildings. It is an important document for understanding parking and storage allocations, long-term contracts and shared facility arrangements. These details may impact your use and costs for years.

11. Long-Term Lease or License Agreements

Some parking stalls or storage lockers may be under special agreements and not owned in conjunction with your strata unit. Review the terms carefully.

12. Air Space Parcel Easement Agreements

If your building shares land or amenities, such as parking, with another development, this document explains the cost-sharing and responsibilities.

13. New Home Warranty Documents and Claims History

For newer buildings, review remaining warranty coverage, if any claims have been filed, and whether any issues remain unresolved. Warranty disputes may signal broader issues with the building.

14. Legal Proceedings

Any lawsuits involving the strata may lead to significant financial implications for owners.

Red Flags Buyers Should Watch For

When reviewing the above documents, buyers should be alert for:

• Compliance with the Strata Property Act (a lawyer can assist you in determining whether the strata is in compliance with the SPA)

• Low contingency reserves

• Repeated or escalating complaints

• Evidence of water leaks or building envelope problems

• A history of special levies

• Upcoming major repairs

• Conflicts within council or with owners

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Understanding the Legal Presumption

When a parent transfers money to an adult child without receiving anything in return, the law generally presumes that the transfer is not a gift but is instead held on trust by the child for the parent.

This is because the law presumes bargains, not gifts to adult independent children. In other words, while the child may have legal ownership of the money, the parent is considered the beneficial owner.

This is called the presumption of resulting trust. It applies unless evidence shows that the transfer was intended as a gift.

The presumption can lead to complications if a dispute arises later, particularly when there is no clear record of what the transferring parent intended (gift versus loan) at the time of the transfer.

Making Your Intentions Clear

To avoid confusion and potential disputes, it is critical to establish, from the outset, whether the money is intended as a gift or a loan. If the parent intends the funds to be a loan, certain steps should be taken to document this clearly:

1. Create a Written Loan Agreement: Courts focus on the intention of the parent at the time of the transfer. A written document illustrating the parent’s intention, prepared contemporaneously with the transfer of funds, provides the strongest evidence of this intent.
2. Specify Repayment Terms: The loan agreement should outline the terms of repayment, including any interest, schedule of payments, and consequences of default. Even a simple repayment plan reduces ambiguity as it demonstrates the expectation of repayment.
3. Keep Documentation Accessible: Retain copies of the loan agreement, bank transfers, and any correspondence discussing the loan. This documentation can be invaluable if disagreements arise later.

If the funds are intended as a gift, it is equally important to document that intent. A simple Deed of Gift, gift letter or other written declaration can help to evidence the intention of the parent to give the money with no expectation of repayment. This protects both parties and can be used to rebut the legal presumption of resulting trust.

Common Pitfalls

Problems most often occur when nothing is documented at the time of transfer of funds. What begins as a clear oral agreement can become muddled over the years, especially as family dynamics shift – for example, if the child separates from a partner, if siblings become involved, if the parent’s financial situation changes or if someone dies.

Without clear evidence, one party may later claim that the funds were a gift, while the other insists they were a loan. This can lead to costly legal battles and lasting strain on family relationships.

Final Thoughts

Providing financial assistance to family members can be a generous and helpful gesture, but it comes with potential legal and relational complexities. By clearly documenting gifts or loans (specifying repayment terms), and keeping thorough records, parents can protect their interests and maintain harmony within the family. Clear communication and proper documentation ensure that everyone understands the nature of the transaction, preventing misunderstandings down the road.

If you are considering providing financial help to a child or another family member, it’s important to make sure your intentions are clearly documented. The lawyers at Heath Law LLP in Nanaimo can guide you through preparing a loan agreement or gift documentation to protect both your interests and your family relationships. Contact us today to schedule a consultation.

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Mutual trust and honest communication are essential for meaningful engagement among all involved. The act of misrepresentation, whether through a false statement or the omission of a material fact, undermines that trust. Misrepresentation can significantly influence a party’s decision and expose the other to serious legal consequences.

A recent decision, Sewell v. Abadian, a 2025 British Columbia Court of Appeal ruling, illustrates how courts in BC address the issue of misrepresentation by omission.

In Sewell, the seller, a former realtor, failed to disclose in the disclosure statement that an addition to the home did not have a permit, even though it was known to him. He crossed out relevant sections of the disclosure statement stating only that he had not lived in the home himself. The Court concluded that the buyer had reasonably relied on the seller to disclose everything he knew about the property. By crossing out parts of the disclosure statement, the buyer believed the seller was indicating he was unaware of the answers to those questions.

The seller’s omission was found to constitute misrepresentation, entitling the buyer to rescind the deal and recover a $300,000 deposit. The Sewell decision reinforces the legal and ethical responsibility of full disclosure in real estate transactions. It makes clear that silence or selective omission can amount to misrepresentation with serious consequences, and that courts will scrutinize attempts to obscure or withhold material information.

For anyone involved in real estate, this case underscores the importance of transparency and the potential risks of failing to disclose known issues.

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Practices like phantom bidding, where false or non-existent offers are alluded to in order to create a sense of competition, undermine that trust. This deceptive tactic misrepresents the actual interest in a property, manipulating buyers into making higher offers based on misleading information. Such behavior erodes the integrity of the transaction and can damage the credibility of those involved. Tran v. Brickman, a recent 2025 Ontario Superior Court decision illustrates how courts in Canada address issues of misrepresentation.

The seller in Tran fabricated offers, falsely communicating to the only buyer that there were other offers in play. To complete the deal, the buyer would have to increase their offer. The court found that these offers, allegedly made by other parties, were nothing more than “oral puffery.” They were not valid under Ontario’s real estate regulations, which require offers to be in writing.

As a result, these were found to be phantom bids.

The buyer was awarded $28,600 in damages under the loss of opportunity doctrine, recognizing the buyer’s lost chance to negotiate fairly. The ruling reinforced that offers must comply with real estate regulations or they could be seen as phantom bids in Ontario, leading to misrepresentation.

Ontario has taken steps to regulate phantom bidding, including rule changes in 2015 and increased enforcement. British Columbia has seen fewer formal complaints and has therefore not adopted similar regulations, instead continuing to rely upon existing ethical standards. The case law in British Columbia on phantom bidding is limited, however, there are signs of growing attention to the issue. In July 2023, real estate boards across British Columbia’s lower mainland introduced the Disclosure of Multiple Offers Presented form.

This form requires listing agents to disclose the number of offers and brokerages involved, enhancing transparency and aiming to boost buyer confidence in competitive offer situations. Transparency does remain limited, as actual offer details remain hidden.

While not a direct response to phantom bidding, it is a clear step toward increased accountability in offer presentation.

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As of January 1, 2025, British Columbia’s Residential Property (Short-Term Holding) Profit Tax Act, commonly known as the Home Flipping Tax, came into effect. The tax targets speculative real estate activity by taxing profits from the sale of residential properties held for less than 730 days. The tax applies not just to physical properties but also to the assignment of pre-sale contracts and includes individuals, corporations, trusts, and partnerships.

If you sell a property within 365 days of buying it, you will pay 20 percent tax on the profit. If you sell between 366 and 730 days, the tax rate gradually decreases to zero by day 730 determined by the following formula:

The profit is calculated as the sale price minus the purchase price and any improvement costs. A deduction of up to $20,000 is available if you lived in the home as your primary residence for at least 365 days. This deduction does not apply to pre-sale assignments.

There are exemptions. Some people and organizations do not need to pay or file, including charities, Indigenous nations, non-profits, and government organizations. Other exemptions, such as those for death, divorce, illness, job loss, or relocation, still require you to file a return but may reduce or eliminate the tax owed. Builders and developers will also be exempt if the property was held for construction or development.

Anyone who sells a property within two years must file a return within 90 days of the sale, even if they qualify for an exemption. Failure to file can lead to penalties.

TL;DR:

Who Does It Apply To?

• Individuals, corporations, trusts, and partnerships
• Sales of physical properties and assignment of pre-sale contracts

How Much Is the Tax?

• 20% tax on profit if you sell within 365 days of purchase
• Gradually decreases to 0% by day 730
• Profit = Sale price – Purchase price – Improvement costs
• Up to $20,000 deduction if the home was your primary residence for at least 365 days (does not apply to pre-sale assignments)

Are There Exemptions?

Yes, but you may still need to file:

• Full exemptions (no tax, no filing): Charities, Indigenous nations, non-profits, government organizations
• File required, possible reduction/elimination of tax: Death, divorce, illness, job loss, relocation
• Builders/developers are exempt if the property was held for construction or development

Filing Requirements

• If you sell within two years, you must file a return within 90 days of the sale, even if exempt.
• Failure to file can result in penalties.

If you are selling or assigning property in 2025 or later,  you should seek a professional tax advisor or contact us for legal advice to understand the consequences and requirements of such transactions.

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When someone becomes incapable of managing their own affairs, a court in British Columbia may appoint a committee under the Patients Property Act, RSBC 1996, c 349. This fiduciary role is often misunderstood — particularly when it is compared to the duties of executors or trustees who have Power of Attorney.

While a trustee or executor is expected to manage or distribute an estate with a focus on maximizing value for beneficiaries, a committee operates under a very different standard. Their responsibility is to the incapable person alone, and any management of the patient’s estate is generally undertaken only insofar as it benefits the patient. The committee’s relationship to the estate is therefore indirect: it exists only through the lens of the patient’s best interests, not out of any obligation to grow the estate for heirs.

Section 18: A Duty to the Patient First and Foremost

Section 18(1) of the Patients Property Act says:

“A committee must exercise the committee’s powers for the benefit of the patient and the patient’s family, having regard to the nature and value of the property of the patient and the circumstances and needs of the patient and the patient’s family.”

At first glance, this provision might suggest a balancing act between the interests of the patient and their broader family. But British Columbia courts have consistently interpreted the language of section 18 in a way that centres the incapable person, not their heirs. The reference to “the patient’s family” does not impose a duty to future beneficiaries, nor does it require the committee to preserve or enhance the value of the estate for eventual distribution.

Instead, the “family” language has been treated as a recognition that some decisions may have collateral benefits for family members — such as supporting a dependent child or spouse — but only when those benefits align with the patient’s own needs and welfare. Committees are fiduciaries to the patient, not fiduciaries of the estate, and not agents of the family.

This interpretation was affirmed in British Columbia (Public Trustee) v. Bradley Estate, 2000 BCCA 78. In that case, the Court of Appeal rejected a proposal to restructure a patient’s estate for tax purposes in a way that would benefit his children after death. Even though the plan would have saved on U.S. estate taxes and arguably preserved more wealth, it was found to be incompatible with the committee’s duty because it would materially reduce the estate during the patient’s lifetime without delivering any personal benefit to him. The court held that committees may only reduce the estate if doing so genuinely serves the patient’s welfare. There is no authority to take financial risks or restructure the estate solely to favour eventual beneficiaries (paras 15–20).

This principle was reaffirmed — and clarified — in Uhlving Estate v. Public Guardian and Trustee, 2024 BCCA 397. There, the Public Guardian and Trustee declined to pursue a WESA wills variation claim on behalf of an incapable widow, even though a successful claim would have increased the size of her estate for her adult children. The court upheld this decision, emphasizing that the committee’s statutory duty does not authorize litigation that exposes the patient’s assets to risk unless the litigation is directly linked to improving the patient’s own financial position or care. Justice Grauer wrote:

“A statute aimed at the protection of vulnerable persons… cannot authorize a committee to act in a way that would jeopardize the patient’s continued care and maintenance when the only consequence would be to materially benefit a legally unrelated third party.” (Uhlving, at para 54)

While a committee must be mindful of the family’s needs in situations where the patient’s support obligations persist — for example, to a dependent spouse or child — these are exceptions grounded in the patient’s own obligations and well-being. The core principle remains: the estate is a resource for the patient, not an inheritance to be grown for others.

By contrast, an executor or trustee is specifically tasked with managing and preserving an estate for the benefit of named beneficiaries or classes of heirs. Their role includes identifying tax efficiencies, recovering debts owed to the estate, and maximizing value for distribution. A committee, however, cannot simply do what’s best for the estate. They must ask: does this decision benefit the patient, directly and meaningfully, during their lifetime? If the answer is no, the action should likely not be taken — even if the patient’s family might stand to gain.

What If There’s Truly No Impact on the Patient?

The core legal position is this: committees are not neutral stewards of the estate. Their powers are exercised through the prism of the patient’s benefit — not for the estate’s general preservation, and certainly not to increase the share left to others.

So, even where a decision is costless or low-risk (e.g., pursuing a simple claim, amending a will, or changing asset structure), courts have been reluctant to allow committees to act purely to benefit others, unless:

• The patient gains some tangible or intangible benefit (e.g., peace of mind, maintaining long-standing family expectations, or avoiding conflict);
• The action aligns with the patient’s known wishes, expressed prior to incapacity;
• There is no financial, reputational, or practical risk to the patient or their care; and
• The action is objectively reasonable under the standard of a “prudent person of business.”

But even under those circumstances, caution prevails. If there is a chance the decision could be interpreted as self-dealing or as exceeding the scope of authority, courts will tend to side with inaction. That is, committees should be risk-averse, even inactionist, when the benefit is external and the internal justification is weak.

Conclusion: Duty First, Legacy Second

Committees are not custodians of inheritance. Their duty is not to secure windfalls for beneficiaries, but to make careful, prudent decisions that protect the welfare of the patient during their lifetime. While trustees and executors look to the future — preserving and maximizing assets for others — committees look primarily to the present, with one question in mind: What serves the best interests of the person I am appointed to protect?

If you have been appointed as a committee, or are navigating questions about estate planning and incapacity, our team can help you understand your legal obligations and protect both your loved one’s interests and your own.

Contact Heath Law today. or read more of our blog articles about Trusts and Estate Law.

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Employee vs. Independent Contractor

The key to determining whether you’re an employee or an independent contractor lies in whether you’re running your own business or simply working for an employer.

Here are some factors to consider:

1. Intention: What was the original agreement or understanding between you and the company?

2. Control: How much control does the company have over how and when you work?

3. Equipment: Do you supply your own tools and equipment, or does the company provide them?

4. Financial Risk: Are you taking on financial risk, like investing in equipment or covering expenses?

5. Opportunity to Profit: Do you have a chance to earn extra income based on your performance and efficiency?

Understanding the Tax Implications

Incorporating your business can offer tax advantages, but it also comes with important considerations. The Income Tax Act has rules to prevent tax avoidance through incorporation. A significant provision is the Anti-Avoidance Rule, which applies if you incorporate your business to provide services that would normally be done as an employee. In such cases, your corporation might be categorized as a personal service business.

Personal Service Business: What You Need to Know

If classified as a personal service business, you’ll face several tax disadvantages:

1. Restricted Deductions: You’ll have limited ability to deduct common business expenses like office supplies, travel, meals, and phone bills.

2. Loss of Small Business Deduction: You won’t be eligible for the small business deduction, which usually provides a lower tax rate.

3. Higher Tax Rate: Personal service businesses are subject to a higher tax rate—specifically 5% of the corporation’s taxable income for the year.

Conclusion

If you’re considering incorporating as an independent contractor, please contact Heath Law to book and appointment with one of our lawyers for legal advice and seek out a tax professional to avoid unexpected tax issues.

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Unjust enrichment occurs when a party confers a benefit upon another party without receiving the proper restitution required by law. Unjust enrichment is a strict liability and faultless claim, meaning the plaintiff will only get back exactly what was transferred. The principle aims to reverse an unjustified transfer and restore the parties to their pre-enrichment status.

The Elements of a Successful Unjust Enrichment Claim

To successfully claim unjust enrichment, three key elements must be satisfied:

1. Objective Benefit to the Defendant: The defendant must have received a benefit, which can be anything of value, such as money, services, or property.
2. Corresponding Deprivation to the Plaintiff: The plaintiff must have suffered a loss or deprivation as a result of the benefit conferred on the defendant.
3. Absence of a Juristic Reason: There must be no legal justification for the defendant’s retention of the benefit. In other words, the benefit received by the defendant cannot be justified by a contract, a gift, or a legal obligation.

Defences Against Unjust Enrichment Claims

There are several defences that a defendant might use to counter a claim of unjust enrichment:

1. Subjective Devaluation: This defence may defeat the first element of the unjust enrichment claim when the defendant did not have a choice in accepting the benefit. More specifically, when the defendant did not voluntarily choose to assume financial responsibility for the benefit.

Rebutting Subjective Devaluation: The plaintiff can rebut the subjective devaluation if:

• The defendant requested or accepted the benefit with knowledge of the expectation of payment.
• The benefit was readily returnable, and the defendant did not return the benefit to the plaintiff.
• The defendant has received an incontrovertible benefit such as money, realized financial gain, or the saving of a necessary expense.

2. Change of Position: This defence applies if the defendant has spent or used the benefit they received in a way that means they no longer have it. To use this defence successfully, the defendant must prove:

• • Extraordinary Expenditure: The benefit was spent on something unusual or special, not regular expenses—for example, buying concert tickets instead of paying a credit card bill.
  • Relying on the Benefit: The defendant only spent the benefit because they believed they were entitled to it. For instance, they bought the concert tickets because they thought the benefit was theirs to keep.
  • Good Faith: The defendant must show they acted honestly. If they knew they weren’t entitled to the benefit, they couldn’t use this defence.

3. Public Policy and Reasonable Expectations: In some cases, the defendant may argue that retaining the benefit aligns with public policy or reasonable expectations. This defence is evaluated on a case-by-case basis.

Conclusion
Unjust enrichment is a complex area of law aimed at ensuring fairness when one party unfairly benefits at another’s expense. Whether you’re pursuing a claim or defending against one, grasping these principles is crucial to achieving a fair resolution.

If you suspect you’ve been subjected to a case of Unjust Enrichment and would like to book an appointment with one of our lawyers, call 1-866-753-2202 or drop us an email.

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