Equitable Remedies for Financial Abuse of the Elderly: Granger v. Granger
This blog post examines Granger v. Granger.[1] In it the court applies the doctrines of unjust enrichment and undue influence and grants the remedy of equitable compensation.
Katarina bought the family home in 1981. Her husband deserted the family three years later and her son, John, continued to live with his mother for the next 30 years. John believed that his mother wanted him to live with her and look after her and the house. He maintained that initially he was promised half the house when Katarina died. However, after Katarina helped John’s sister, Helena, to purchase another property, his mother promised him the entire house. Helena moved back home in 2012 when her marriage broke up. She obtained a power of attorney from her mother and then transferred the title to the house into the joint names of Katarina and herself.
In 2014, when Katarina was elderly, she and Helena brought an application for a writ of possession to evict John and his common law wife from the house. John brought a counter-application in which he sought a declaration that he had a beneficial interest in the family home, or alternatively for equitable compensation for financial contributions and personal services rendered to Katarina. He also sought a declaration that Helena’s power of attorney was void for undue influence.
The trial judge held that Katarina was capable and granted the request of Katarina and Helena to evict John. After a trial of the issue, he found that none of the family members were credible, but ultimately dismissed John’s claim for equitable compensation. John appealed.
The Court of Appeal held that the trial judge erred in denying John’s claim based on unjust enrichment. He did not properly allocate the burden of proof when he required John to prove that he conferred a net benefit on Katarina and finding that Katarina’s benefit on John was greater than John’s benefit on her. The court followed Kerr v. Baranow,[2] in which Cromwell J. held that in most cases involving a claim for a “fee for service”, mutual benefit should not be considered at the juristic reason stage of the analysis, but only at the defence or remedy stage. The Court of Appeal concluded that John did not discharge the onus of proving that he conferred monetary payments on Katarina. However, he did discharge the onus of proving the conferral of his personal services and that those services were worth approximately $438,000. The corresponding deprivation to John was clear and there was no juristic reason for the enrichment. So there was a prima facie case of unjust enrichment. At that point Katarina had the onus of proving a valid defence or reason to limit the remedy sought. While the trial judge was entitled to put a market value on the accommodation John and his partner enjoyed, he erred in treating that value as proof of an offsetting benefit. For Katarina retained the onus of proving that she provided rent-free accommodation. She did not meet this onus. Accordingly, John proved his case for enrichment in the amount of approximately $438,000 and was entitled to equitable damages in that amount.
The Court of Appeal also allowed John to admit Katarina’s and Helena’s evidence at trial as fresh evidence on the appeal. That evidence proved that Helena exercised undue influence over Katarina. Therefore the court also set aside the trial judge’s dismissal of John’s application and replaced it with an order revoking Helena’s power of attorney and requiring her to account for her management of Katarina’s property.
Granger is thus another example of an older adult being caught in the middle of a battle between siblings. The litigation and the dispute between her children was undoubtedly also upsetting and disruptive to the elderly mother and caused her assets to be depleted.
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[1] 2016 ONCA 945, reversing 2015 ONSC 1711, 9 E.T.R. (4th) 281, and 2015 ONSC 6238.
[2] 2011 SCC 10, [2011] 1 S.C.R. 269.
Please view our paper, “Equitable Remedies for Elder Abuse: A Case Law Review”, that we presented at the STEP Canada, Toronto Branch program Elder Abuse and Ways of Protecting the Elderly on 18 October 2017.
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Written by: Albert Oosterhoff
Posted on: October 23, 2017
Categories: Commentary
This blog post examines Granger v. Granger.[1] In it the court applies the doctrines of unjust enrichment and undue influence and grants the remedy of equitable compensation.
Katarina bought the family home in 1981. Her husband deserted the family three years later and her son, John, continued to live with his mother for the next 30 years. John believed that his mother wanted him to live with her and look after her and the house. He maintained that initially he was promised half the house when Katarina died. However, after Katarina helped John’s sister, Helena, to purchase another property, his mother promised him the entire house. Helena moved back home in 2012 when her marriage broke up. She obtained a power of attorney from her mother and then transferred the title to the house into the joint names of Katarina and herself.
In 2014, when Katarina was elderly, she and Helena brought an application for a writ of possession to evict John and his common law wife from the house. John brought a counter-application in which he sought a declaration that he had a beneficial interest in the family home, or alternatively for equitable compensation for financial contributions and personal services rendered to Katarina. He also sought a declaration that Helena’s power of attorney was void for undue influence.
The trial judge held that Katarina was capable and granted the request of Katarina and Helena to evict John. After a trial of the issue, he found that none of the family members were credible, but ultimately dismissed John’s claim for equitable compensation. John appealed.
The Court of Appeal held that the trial judge erred in denying John’s claim based on unjust enrichment. He did not properly allocate the burden of proof when he required John to prove that he conferred a net benefit on Katarina and finding that Katarina’s benefit on John was greater than John’s benefit on her. The court followed Kerr v. Baranow,[2] in which Cromwell J. held that in most cases involving a claim for a “fee for service”, mutual benefit should not be considered at the juristic reason stage of the analysis, but only at the defence or remedy stage. The Court of Appeal concluded that John did not discharge the onus of proving that he conferred monetary payments on Katarina. However, he did discharge the onus of proving the conferral of his personal services and that those services were worth approximately $438,000. The corresponding deprivation to John was clear and there was no juristic reason for the enrichment. So there was a prima facie case of unjust enrichment. At that point Katarina had the onus of proving a valid defence or reason to limit the remedy sought. While the trial judge was entitled to put a market value on the accommodation John and his partner enjoyed, he erred in treating that value as proof of an offsetting benefit. For Katarina retained the onus of proving that she provided rent-free accommodation. She did not meet this onus. Accordingly, John proved his case for enrichment in the amount of approximately $438,000 and was entitled to equitable damages in that amount.
The Court of Appeal also allowed John to admit Katarina’s and Helena’s evidence at trial as fresh evidence on the appeal. That evidence proved that Helena exercised undue influence over Katarina. Therefore the court also set aside the trial judge’s dismissal of John’s application and replaced it with an order revoking Helena’s power of attorney and requiring her to account for her management of Katarina’s property.
Granger is thus another example of an older adult being caught in the middle of a battle between siblings. The litigation and the dispute between her children was undoubtedly also upsetting and disruptive to the elderly mother and caused her assets to be depleted.
—
[1] 2016 ONCA 945, reversing 2015 ONSC 1711, 9 E.T.R. (4th) 281, and 2015 ONSC 6238.
[2] 2011 SCC 10, [2011] 1 S.C.R. 269.
Please view our paper, “Equitable Remedies for Elder Abuse: A Case Law Review”, that we presented at the STEP Canada, Toronto Branch program Elder Abuse and Ways of Protecting the Elderly on 18 October 2017.
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