[1]               Woodbridge Homes Inc. is an Alberta-based builder and developer. Woodbridge’s President is Gary McPeak. He is married to Glynis McPeak.

[2]               Josephine Andrews is Glynis McPeak’s cousin. Therefore, by marriage, she is Gary McPeak’s cousin.

[3]               For ease of reference, I will refer to the Plaintiff as Woodbridge; I will also refer to Gary and Glynis McPeak jointly as the McPeaks, and individually as Mr. McPeak or Ms. McPeak. I will refer to the Defendant as Ms. Andrews.  

[4]               Five different properties are relevant at various times in this lawsuit. They are described in these reasons as the Strathmore Home, the Wanyandi Home, the First Wabamun Home, the Second Wabamun Home and the Alberta Beach Home.

[5]               Woodbridge is suing Ms. Andrews for amounts that it alleges are owing for services and materials provided to her in relation to the last of these homes. It is a modular home located on a residential lot at Alberta Beach in Lac Ste. Anne County, Alberta. Ms. Andrews has lived in the Alberta Beach Home since 2010.

[6]               Woodbridge claims that it located Ms. Andrews’ lot at Alberta Beach for her, prepared the site for the modular home, moved the modular home onto the lot, situated it properly and completed all necessary finishing work.

[7]               Although the precise amount of the claim was not entirely clear at trial, or in the documents, the figure that I am able to discern from Woodbridge’s argument is $149,747.65 plus interest, costs and disbursements.

[8]               This sum is arrived at by taking Woodbridge’s summary of its costs claimed calculation (referenced by its expert witness in his amended report) of $303,093 plus GST for a total of $318,247.65, then deducting $168,500 for amounts paid by Ms. Andrews for the modular home unit, the lot and a gas co-op membership. Therefore, the net amount sought of $149,747.65. I am making the assumption that this figure includes GST.

[9]               Woodbridge alleges that since she moved into the Alberta Beach Home in 2010, Ms. Andrews refuses to pay the sum owing despite demand.

[10]           Woodbridge’s claim is based on contract and unjust enrichment, with the remedy for unjust enrichment being quantum meruit (services rendered) and quantum valebat (goods delivered). The unjust enrichment claim has two elements: 

[11]           Woodbridge also seeks rental arrears in relation to Ms. Andrews’ use and occupation, as a tenant, of a home located at 1212 Wanyandi Road in Edmonton. This is the Wanyandi Home. The claim is for $93,600.

[12]           Woodbridge registered a lien against title to the lands on which the Alberta Beach Home is situated pursuant to the Builders’ Lien Act, RSA 2000, c B-7 on November 19, 2010.  The initial amount of the lien when it was filed was $96,088.65. The amount referred to during the course of the trial was set at $133,698.00 and by consent the builder’s lien was amended at trial to reflect that claimed amount. Leaving this discrepancy aside for the moment, Woodbridge asks for a declaration that its lien is valid, with the remedy of sale under section 59(2) of the Builder’s Lien Act, RSA 2000, c B-7.

[13]           Ms. Andrews has filed a Statement of Defence. She specifically pleads that the lien was not registered in time under the Builders’ Lien Act. The validity of the lien is challenged on the basis that the last day that Woodbridge was on site was in August, 2010 and the lien was filed more than 45 days after that.

[14]           Ms. Andrews takes the position that Woodbridge has received “fair and reasonable compensation” for its role in constructing the Alberta Beach Home. She argues that Woodbridge has not made out a case for breach of contract or unjust enrichment.

[15]           Even if Woodbridge can prove an enrichment of Ms. Andrews and that Woodbridge was deprived correspondingly, Ms. Andrews says that the evidence establishes donative intention, which is a juristic reason to deny Woodbridge the relief it is seeking. The reasonable expectations of the parties supports the retention of any benefit that Ms. Andrews may have received. She says that this was a “family helping family” arrangement, not a commercial one. 

[16]           After addressing pleadings amendments, I will outline the facts, and then give my reasons for finding that Woodbridge is partially successful in this action.

[17]           Woodbridge raised Ms. Andrews’ failure to plead donative intent and the reasonable expectations of the parties. Ms. Andrews responded by pointing out Woodbridge’s failure to plead unjust enrichment in either the Statement of Claim or the Amended Statement of Claim. Woodbridge also did not plead its claim for rental arrears. Woodbridge’s original claim is for breach of contract and builder’s lien claims only.

[18]           Rather than parsing through these issues in their particulars, I have decided to adjudicate upon all of the parties’ arguments, causes of action and defences, regardless of pleadings deficiencies. This decision is, in my view, aligned with the spirit and letter of Rule 1.2 of the Alberta Rules of Court, Alta Reg 124/2010. Allowing required amendments is consistent with the overarching goal of resolving the claims between these parties in a fair and just way, with cost-effectiveness and timeliness top of mind. It also reflects how the evidence and arguments unfolded at trial.

[19]           Substantively, Rule 3.65 of the Alberta Rules of Court gives the Court discretion to allow amendments after pleadings are closed. The general rule is that, with the court’s permission, a pleading can be amended at any stage of the proceedings no matter how late or careless the party seeking the amendment may be: Milfive Investments Ltd v Sefel, 1998 ABCA 161 at para 3; Balm v 3512061 Canada Ltd, 2003 ABCA 98; Eon Energy Ltd v Ferrybank Resources Ltd, 2018 ABCA 243.

[20]           This general rule allowing amendments is subject to four major exceptions:

[21]           Amendments proposed even at a very late stage of a civil proceeding are permitted under the general rule, provided that the amendments do not prejudice the opposite party or fall into one of the other exceptions. For example, if all the evidence has already been completed without reference to an issue not raised by the pleadings, prejudice will be virtually inevitable: McDonald v Fellows (1979), 1979 ABCA 224 (CanLII), 17 AR 330 at 336 (Alta CA).

[22]           I allow Woodbridge’s amendments in order to hear the unjust enrichment claim, in addition to the breach of contract and builder’s lien claim. I allow the Amended Statement of Claim to be further amended to include the claim for rent at the Wanyandi Home. There is no serious prejudice to Ms. Andrews in these amendments. They are not hopeless and all are inextricably linked to the factual matrix as it emerged at trial. There is no bad faith apparent in the amendments.

[23]           For the same reasons, I allow the amendments proposed by Ms. Andrews concerning donative intent and reasonable expectations of the parties.

[24]           As mentioned above, the McPeaks and Ms. Andrews are related and have known each other for many years.

[25]           Ms. Andrews is originally from England, and the McPeaks were her main (if not only) family in Canada. Ms. Andrews lived in Strathmore Alberta in the Strathmore Home prior to moving to the Edmonton area. Before moving to Edmonton in 2006, Ms. Andrews described her relationship with the McPeaks as very social. She visited Edmonton on weekends.

[26]           Ms. Andrews testified that Ms. McPeak suggested she move to Edmonton after her husband passed away.  When she moved to Edmonton she was at their house “almost daily” (Trial Transcript, October 16, 2018, page 3, line 20). She said that she saw Mr. McPeak very regularly prior to this dispute arising; in fact, in the time period prior to this legal action she visited the McPeaks on vacation at their homes in San Francisco and Sylvan Lake, Alberta.

[27]           Mr. McPeak minimized his relationship with Ms. Andrews throughout the trial. He testified that prior to 2006, he did not really know Ms. Andrews and had only met her a couple of times over the previous 40 years. At Questioning, he had testified that he had seen Ms. Andrews six times in 30 years. Given the extensive assistance he gave to Ms. Andrews, I found this aspect of his evidence at trial self-serving.

[28]           The close nature of the relationship between Ms. Andrews and the McPeaks was corroborated by Tony Crudgington, Ms. Andrews’ brother, who visited from England during Ms. Andrews’ home search and provided her with financial assistance. No evidence from Ms. McPeak or any other family members was given at trial.

[29]           On the totality of the evidence, it is clear that Ms. Andrews and the McPeaks had a close extended family relationship at all relevant times. As a result, the McPeaks did not hesitate to help Ms. Andrews; specifically, when she needed their assistance with her living arrangements in the Edmonton area.

[30]           When she moved to Edmonton, Ms. Andrews intended to get her own home as soon as possible. In the interim, Ms. McPeak offered Ms. Andrews accommodation in the Wanyandi Home. Given the family connection, Ms. Andrews could help look after Joan Baird, who was elderly and already living in the Wanyandi Home. Joan Baird was Ms. McPeak’s mother, and therefore an aunt to Ms. Andrews.

[31]           Ms. Andrews moved into the Wanyandi Home in 2006.

[32]           In 2008, Ms. Andrews sold the Strathmore Home. She realized net sale proceeds of $127,000. She put her furniture and other personal belongings in storage.

[33]           Ms. Andrews’ evidence throughout the trial was that the net proceeds from the sale of the Strathmore Home represented essentially all of the money that she had to buy her next home. It turned out that she was able to secure funds from her brother (as I will outline later), but the bulk of her money came from the Strathmore Home net sale proceeds. This is an important recurring point.

[34]           Ms. Andrews’ financial situation, on the whole, required her to be careful with her money. She was on a fixed income consisting of Canada Pension Plan benefits (in the $700 per month range) and a company pension (about $1100 per month). There was a brief period of time after moving to Edmonton during which Ms. Andrews did some work for Winalta Inc. in a receptionist-type role, making $10 per hour and working about 20 hours per week. This is relevant because Winalta was a modular home manufacturer.  This job, however briefly she held it, acquainted her with the Winalta product.

[35]           The receipt of the sale proceeds from the Strathmore Home occurred at the same time that Ms. Andrews and the McPeaks were discussing her purchase of her own home.  Throughout the 2007 to 2008 timeframe, this was a frequent topic of discussion between her and the McPeaks.

[36]           It was serendipitous that Ms. Andrews had a family relationship with Mr. McPeak, who has considerable qualifications as a real estate developer and home builder. Mr. McPeak said at trial that Woodbridge, the company through which he operates his business, had about 400 lots in development around Alberta, and has been involved in projects in the United States. Given Mr. McPeak’s experience, it made sense for Ms. Andrews to tap into his knowledge. Ms. Andrews’ evidence is that the McPeaks freely offered their assistance in this endeavour.

[37]           One evening, during dinner, the McPeaks and Ms. Andrews were discussing her planned move. Ms. Andrews testified that she was very clear from the outset that her budget was $130,000. She had a strong aversion to financial uncertainty. She was worried about not owning her lot and being exposed to increases in lot rent (which had been her situation in Strathmore). She wanted to avoid having a mortgage.  She said that Mr. McPeak told her that her plan could be carried out with the money she had on hand.  

[38]           Ms. Andrews began exploring, with Mr. McPeak, the idea of buying either a “stick-built home” or a modular home. A stick-built home is a house that is built on-site; a modular home is mostly constructed off-site in a plant and then moved to a parcel of land where final assembly occurs.

[39]           At some point, the McPeaks and Ms. Andrews were talking about some lots that Woodbridge owned in the Wabamun, Alberta area that were slated for development.

[40]           Ms. Andrews wanted to buy a modular home and place it on one of these Wabamun lots. However, the municipality would not permit modular homes on the lot that she wanted. Mr. McPeak told Ms. Andrews that a stick-built home could be built on that lot. Ms. Andrews understood that the cost would be $130,000 and that the lot itself would be given to her by Woodbridge free of charge.

[41]           Mr. McPeak said that Ms. Andrews asked Woodbridge to build the stick-built home. The home was completed. The property appears to have been put in Ms. Andrews’ name, but there is no evidence that she paid any money to Woodbridge.

[42]           After it was built, Ms. Andrews decided not to live in the First Wabamun Home. There are conflicting reasons in evidence for this decision.

[43]           Mr. McPeak testified that Ms. Andrews did not like the layout of the home, specifically the stairs. He gave different evidence at Questioning, stating that that the reason Ms. Andrews did not like the First Wabamun home was due to a “crazy neighbour across the street” (Trial Transcript, January 25, 2018, page 55, lines 27-28). Ms. Andrews’ evidence is that she did not think that the home was affordable on her budget of $130,000.

[44]           In any event, Ms. Andrews sold the First Wabamun Home to a third party in June 2010, for about $309,000. Ms. Andrews received nothing from the sale. The net proceeds from the sale of the First Wabamun Home totalled $293,581.47. Ms. Andrews issued two cheques. The first was to Woodbridge in the amount of $141,225.00 and the second was to Mr. McPeak in the amount of $152,356.47. This was done at Ms. McPeak’s request, and it had to do with accounting issues which were not fully explained to her.

[45]           When it became apparent that Ms. Andrews was not going to live in the First Wabamun Home, discussions ensued about Ms. Andrews buying a modular home and placing it on a different lot in Wabamun. 

[46]           It happened that Woodbridge owned a 42-acre parcel of land in Wabamun. The municipality had granted approval for a modular home to be placed on an unsubdivided lot within the parcel.

[47]           With that parcel in mind, Ms. Andrews and the McPeaks began to look for a modular home. The evidence is that both McPeaks assisted Ms. Andrews in the search. They appear to have considered homes by several manufacturers and ultimately, Ms. Andrews chose a unit designed by Winalta. It was Ms. Andrews’ understanding that Woodbridge and Winalta had an arrangement (it turned out to be a dealership or distributorship agreement) that allowed Woodbridge to purchase modular homes from Winalta at a discount.

[48]           Ms. Andrews paid $130,000 to Woodbridge on May 11, 2009. She paid nothing for the lot at Wabamun.  There was no discussion about the proper characterization of this payment; that is, whether it was a down payment or other partial payment or a deposit.

[49]           Ms. Andrews understood that the lot on which the Winalta home was to be placed in Wabamun was going to be gifted to her and that her payment of $130,000 covered the cost of the modular home unit and all other expenses.

[50]           Mr. McPeak testified that no final price for the purchase and placement of the Winalta home was ever agreed to. He said that there was a conversation with Ms. Andrews in which it was confirmed that the cost of the lot and the home and all services and materials required, as a total project, would be about $300,000.

[51]           Mr. McPeak always assumed that Ms. Andrews could afford this amount. He knew about the funds from the sale of the Strathmore Home. He also knew that Ms. Andrews was going to be provided with funds by Mr. Crudgington, her brother. Mr. Crudgington is retired from the construction industry in England and visited Canada for a week while Ms. Andrews’ home purchase was being discussed. Mr. McPeak said that in talking with Mr. Crudgington he was led to believe that he would cover any costs over $130,000. Mr. Crudgington indeed gave Ms. Andrews $40,000 towards the Second Wabamun Home. Additionally, Mr. McPeak understood that a gentleman from British Columbia that Ms. Andrews was dating, Arthur Eames, would also provide funds. Finally, Mr. McPeak assumed that mortgage funding could be acquired.

[52]           In summary, at the point in time when Ms. Andrews was ready to move into the Second Wabamun Home, her understanding was that the lot would be gifted to her by the McPeaks or Woodbridge and the extra money from her brother would cover fencing, landscaping and garage construction. These funds were put into her account. She said that Mr. Eames had never offered to give her any money.

[53]           The modular home was placed on Woodbridge’s lot in May 2009.

[54]           However, Ms. Andrews did not live in the modular home while it was situated in Wabamun.

[55]           As the site for the Second Wabamun Home was being prepared, a drainage dispute arose. The municipal authority issued a stop work order. The work on the Second Wabamun Home was not completed.

[56]           In 2009, Ms. Andrews was still living in the Wanyandi Home. Her modular home was sitting unoccupied on the lot in Wabamun.

[57]           Mr. McPeak’s evidence is that he was diligently trying to locate a property for Ms. Andrews after the arrangements for the Second Wabamun Home fell through. At some point in 2009, he located undeveloped parcels with some fabricated homes at Alberta Beach.

[58]           After inquiring, Mr. McPeak determined that the lot price at Alberta Beach was $65,000. He told Ms. Andrews about the opportunity. Ms. Andrews expressed some reservations about paying $65,000 for the lot. She thought it was too much money. 

[59]           At this point, Mr. McPeak said that he responded:  “ … yeah, but, you know, you’re talking $300,000 regardless. I mean that’s – that’s what you’re going to spend out there.”

[60]           Ms. Andrews maintains that she was very clear with the McPeaks that her budget consisted of the net proceeds from the sale of the Strathmore Home and the $40,000 she received from Mr. Crudgington.

[61]           Ms. Andrews saw the lot at Alberta Beach and liked it. In October, 2009 she purchased it for $35,000. Mr. McPeak gave evidence that he negotiated on behalf of Ms. Andrews and convinced the seller to lower the price from $65,000 to $35,000. Ms. Andrews said there was no negotiating; that was the price and she paid it. The $40,000 given to Ms. Andrews by Mr. Crudgington carried over to the Alberta Beach Home.

[62]           In May 2010, the vacant modular home that was situated at Wabamun was moved to Alberta Beach.

[63]           Ms. Andrews moved into the Alberta Beach Home near the end of July 2010. She continues to reside there. When Woodbridge did not receive payment for services and materials that it felt it was owed, the builder’s lien was filed and litigation followed.

[64]           Although this is not a replication of how counsel characterized the issues, I find that there are essentially four issues in this case, which I will address in the following order:

[65]           The standard of proof in civil proceedings is the balance of probabilities: C(R) v McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41. Woodbridge must adduce evidence that is  “ ... sufficiently clear, convincing and cogent to satisfy the balance of probabilities test (C(R) at para 46).  Our Court of Appeal in Braile v Calgary (Police Service), 2018 ABCA 109 at para 37 characterized the balance of probabilities standard as “... meaning “more likely than not” or “51% probability” (citing FH v McDougall, [2008] 3 SCR 41 at paras 43 & 49) and as “proof on a preponderance of probabilities” or “proof on a preponderance of evidence” (citing Smith v Smith, 1952 CanLII 3 (SCC), [1952] 2 SCR 312).

[66]           In short, in order for Woodbridge’s action to succeed, I must believe that Woodbridge’s version of events is more likely than not to be true.

[67]           While there was documentation generated as a result of the dealings between Woodbridge and Ms. Andrews, there is no written contract.

[68]           The general rule of contract formation is that, for an agreement to become binding, the parties must intend to enter into an agreement, there must be a meeting of the minds on all essential terms (consensus ad idem), and the terms must be sufficiently certain: Schluessel v Margiotta, 2018 ABQB 615 at para 6. If a promise is made with the intention that it is legally binding, with consideration, offer and acceptance, an enforceable contract can form.

[69]           Lord Pearce in Henry Kendall & Sons v William Lillico & Sons Ltd, [1969] 2 AC 31, 113 said: “[t]he court’s task is to decide what each party to an alleged contract would reasonably conclude from the utterances, writings or conduct of the other”. Henry Kendall & Sons was quoted by Wakeling, JA of our Court of Appeal in McLennan Ross LLP v Wasylynuk, 2019 ABCA 129 at para 14, footnote 7. In that passage, Justice Wakeling also stated:

[70]           In assessing parties’ intentions to enter into a binding contractual arrangement, the Court must apply an objective, reasonable person test. This approach was first articulated in Smith v Hughes (1871), LR 6 QB 597 at 607 (Eng QB) and later adopted by the Alberta Court of Appeal in Rob Ghitter Property Consultants Ltd v Beaver Lumber Co, 2003 ABCA 221, 330 AR 353 at para 9:

[71]           A written contract provides tangible evidence for the Court to consider in determining whether or not a contract was made between parties. The absence of a written contract is not fatal: Hailink Dent Removal Inc v Kindersley Mainline Motor Products Ltd, 2018 SKQB 138 at para 23.  Absent writing, contracts can also be oral or inferred from conduct, but it is an understatement to say that a written contract is of considerable evidentiary value.  

[72]           In Schluessel at para 11, Burns J summarizes some relevant principles related to the law of oral contracts:

[73]           It is clear that Woodbridge and/or Mr. McPeak arranged for the placement of a modular home on a parcel of land at Alberta Beach for Ms. Andrews. Services and materials were required to do that. Some of the services and materials were sourced from third parties. There is no dispute that the steps taken by Woodbridge and/or Mr. McPeak were necessary in order to get Ms. Andrews into the Alberta Beach Home. Ms. Andrews knew that this was an undeveloped lot and that there was work that needed to be done.

[74]           However, I cannot find, on the evidence, that there was a contract between Woodbridge and Ms. Andrews with respect to the Alberta Beach Home. It is impossible to find that there was a meeting of the minds concerning the essential terms required for a binding contract. The contractual terms that one might expect to find in an agreement with this subject matter were not agreed upon, and in many cases, not even discussed.

[75]           The most apparent areas of uncertainty include the contracting parties, price and deliverables.

[76]           In terms of the parties, Ms. Andrews testified that she always felt she was dealing with the McPeaks as helpful family members. She knew they had a company called Woodbridge, but she did not know that she was dealing with the corporation in any specific way. Gary McPeak testified that this was a Woodbridge deal. So, the parties never reached a clear agreement on who was providing the materials and services.

[77]           Price is the most significant area of disagreement and is at the core of this lawsuit. It is trite to say that price is a significant term of any contract. It sits at the heart of the exchange of value that underlies the relationship between contracting parties.  

[78]           It was acknowledged by Plaintiff’s counsel in opening argument that no final price was ever expressly discussed or agreed upon between the parties. That is evident from the facts at trial and in the evidentiary challenges around the proper amount of the claim.

[79]           The evidence shows that the parties’ understanding of price was and remains inconsistent and confusing:

[80]           The parties never reached an enforceable agreement on price.

[81]           It is indisputable that Ms. Andrews wished to buy her own home. There is also compelling evidence that she wanted to buy a modular home and place it on one of Woodbridge’s lots. Despite successive attempts and changing terms, I find that, by the time of the Alberta Beach Home project, the parties were agreed about the nature of that project: a modular unit designed by Winalta would be placed on a lot in Alberta Beach, which Ms. Andrews had purchased on her own. Therefore, at least this part of the agreement approaches some certainty.

[82]           The tangible and intangible items being obtained by a party to a contract should be described with some level of certainty.

[83]           Here, Mr. McPeak did not communicate with Ms. Andrews in any meaningful way. He simply did what he determined was necessary, with minimal contact with Ms. Andrews.

[84]           Ms. Andrews’ evidence is that she expected to pay for some items herself, but did not expect to be charged for any services and was not aware of the degree and scope of out of pocket costs that were being incurred by Woodbridge. She characterized this as a “family helping family” situation.

[85]           Timelines do not appear to have been discussed, and there was considerable confusion concerning when Woodbridge’s tools and equipment were removed from the site, and when the project was actually completed as opposed to being merely substantially completed. In fact, a court order was required to compel Woodbridge and Mr. McPeak to remove equipment from Ms. Andrews’ property long after she moved into the Alberta Beach Home.

[86]           Ms. Andrews testified that she was told that there would be a binder of documents related to the build provided to her, similar to what other buyers received. She never received the binder. She asked for it, but did not get a reply and seems to have left the issue alone. The fact that Ms. Andrews did not demand documentation, and produced no notes of her own, indicates a level of trust that is logically consistent with a familial relationship where one family member is helping another. This is of particular relevance given that I found Ms. Andrews to be a meticulous witness. She eschews debt, and is not impulsive in money matters. Mr. McPeak was aware of this. He confirmed that Ms. Andrews is a very diligent person, a note-taker, who “doesn’t accept any sort of information from anybody . . . [s]he checks, she verifies, she does all of that” (Trial Transcript, January 25, 2018, page 54, lines 25-26).

[87]           There was no clear agreement on the specific deliverables. The Court is left with trying to piece together the parties’ understanding from various documents, some prepared contemporaneously, others after the fact. There may be a certain way that these sorts of developments are managed in the industry, as indicated by Mr. McPeak, but there is insufficient evidence that those practises were followed by Woodbridge or communicated to Ms. Andrews.

[88]           Woodbridge is the Plaintiff. It bears the burden of proof. Woodbridge has not discharged that burden. There is ample evidence of discussions, but insufficient evidence that crucial contract terms were agreed upon. No objective reasonable person could, on the evidence before the Court, find an intention to contract or identify the terms of the contract. Whatever either party may have thought, it is impossible to find the indicia or substance of a contract – a promise that the law will enforce – on the evidence.

[89]           This is not unusual in family situations. As Renke J noted in Verwoerd v Verwoerd, 2017 ABQB 272 at para 157:

[90]           I conclude that no contract, whether written or oral, was ever reached between the parties with respect to the Alberta Beach Home.

[91]           I turn to Woodbridge’s unjust enrichment claim.  

[92]           A party seeking equitable relief on the basis of unjust enrichment must prove three things, as set out by the Supreme Court of Canada in Garland v Consumers’ Gas Co, 2004 SCC 25 at para 30:

[93]           If Woodbridge proves on a balance of probabilities that Ms. Andrews was unjustly enriched, the remedy that will follow is based on the equitable remedy of quantum meruit.

[94]           Quantum meruit, or “as much as he deserves”, allows a party to recover the value of services rendered or goods provided: Mitchell McInnes, The Canadian Law of Unjust Enrichment and Restitution (Markham, ON: LexisNexis, 2014) at 36.

[95]           As Stevens J observed in 677960 Alberta Ltd v Petrokazakhstan Inc, 2013 ABQB 47 at paras 75-76:

[96]           This remedy has two forms: contractual and restitutionary.

[97]           Contractual quantum meruit is applied when the Court determines the reasonable compensation for services performed under a contract where the contract does not clearly (or at all) specify consideration: Atir Enterprises Ltd v Briault, 2008 ABQB 520 at para 15.

[98]           GHL Fridman in The Law of Contract in Canada, 6th ed (Toronto: Carswell, 2011) at 10 discusses the conditions for recovery under contractual quantum meruit:

[99]           This approach to contractual quantum meruit was adopted by the Alberta Court of Appeal in Vanir Construction Services Ltd (Receiver of) v Field Aviation Co, 1992 ABCA 2.

[100]      Since I have found that there was no contract between these parties, contractual quantum meruit is not available to Woodbridge.

[101]      Restitutionary quantum meruit may be granted to compensate a party for the value of work, goods, or services rendered where a contract to provide compensation does not exist, has been abandoned, or no longer applies: 677960 Alberta Ltd v Petrokazakhstan Inc, 2013 ABQB 47 at para 85. Where a party has requested the work, goods, or services and has accepted their benefit, a promise to pay is implied: R v Wallberg (1911), 1911 CanLII 48 (SCC), 44 SCR 208 at paras 30, 145-8.

[102]      Recovery on the basis of quantum meruit in the absence of an enforceable contract is based on what a defendant “would have had to pay for [services] on a purely business basis to any other person in the position of the [plaintiff]”: Deglman v Guaranty Trust Co of Canada, 1954 CanLII 2 (SCC), [1954] SCR 725 at 788.

[103]      Relying on Deglman, the Alberta Court of Appeal in Stochinsky v Chetner Estate, 2003 ABCA 226 at para 35, stated that recovery on a quantum meruit basis “is for the reasonable value of work or services on a purely business basis”.

[104]      In Infinity Steel Inc v B & C Steel Erectors Inc, 2011 BCCA 215 at paras 21-22, the British Columbia Court of Appeal identified a number of factors to consider in determining the reasonable value of work or services for a restitutionary quantum meruit remedy:

[105]      Woodbridge’s claim can be divided into two broad categories: amounts paid to third parties and amounts allegedly owed for services rendered to Ms. Andrews.  

[106]      I will now turn to discuss these claims individually and determine whether or not Woodbridge is entitled to restitutionary quantum meruit for all or any part of its claim.

[107]      Woodbridge seeks recovery of costs paid to third parties for services and materials related to grading, water service, septic tank installation, utilities connection, including  telephone, gas and electrical, pilings, lumber and construction of decking and skirting and the installation of a shed and other work required for the placement of the Alberta Beach Home.

[108]      The total amount claimed for third party costs is $49,421.65, according to Woodbridge’s brief filed December 20, 2018.

[109]      I accept that Ms. Andrews benefited from the provision of these third-party materials and services: see Grover v Hodgins, 2011 ONCA 72 at paras 57-9. These are tangible benefits that were obtained in the market and actually delivered, and which clearly benefited Ms. Andrews in the construction of the home in which she resides. The lot at Alberta Beach was undeveloped prior to the modular home being moved onto it. Services and materials were needed to place the home on the lot and make it habitable and compliant with applicable laws.

[110]      I also accept that Woodbridge suffered a corresponding deprivation. There is clear evidence of the third-party costs being expended by Woodbridge for Ms. Andrews’ benefit and Woodbridge no longer has the funds that were expended.  

[111]      Importantly though, Woodbridge did not present convincing evidence respecting the extent of the enrichment. In this context, it should be remembered that Ms. Andrews paid $130,000 for the modular home that was originally placed on Woodbridge’s Wabamun lot in May 2009 (the Second Wabamun Home) and subsequently relocated to Ms. Andrew’s Alberta Beach lot. According to Exhibit D-5, the itemized list of reasonable expenses, that sum accounts both for the cost of the Winalta modular home ($95,000.00, plus $4750 presumably as GST or commission) and for the cost of grading, pilings, power, gas and water and sewer ($35,000.00). However, items such as deck, fence, driveway, garage, and shed would be additional costs (approximately another $30,000). In the absence of evidence from Woodbridge showing exactly what goods and services Ms. Andrews received for her payment of $130,000, I rely on Exhibit D-5. Further, although Mr. Peak testified that Ms. Andrew’s home was worth at least $300,000 and even $400,000, Woodbridge did not present any appraisal evidence respecting the value of the Alberta Beach Home specifically or of a fully habitable modular module in the community of Alberta Beach in general. I will keep this in mind in assessing each of the expenses claimed.

[112]      Where the first two elements of the test for unjust enrichment are met, the Court turns to the juristic reason analysis. This third element is essentially concerned with the justification for Ms. Andrews’ retention of the benefit conferred on her at Woodbridge’s expense

[113]      The juristic reason requirement in the Garland case is discussed at length in Moore v Sweet, 2018 SCC 52 by Cote J for the majority (at paras 56-9):

[114]      Ms. Andrews claims donative intent as a juristic reason to deny Woodbridge recovery of the third-party costs.

[115]      There are three requirements to show donative intent: an intention to give, an acceptance and a sufficient act of delivery (see Bruce Ziff, Principles of Property Law, 5th Ed, (Toronto: Carswell, 2010) at 157). As noted in Park v Canada Korea Foundation, 2014 BCSC 1382 at para 35:

[116]      I find that Ms. Andrews has not met her onus to show a just reason as to why she should be permitted to retain the benefit of all of the proven third-party costs. On the whole of the evidence, there was no intention at the time that all of the proven costs were incurred to gift them to Ms. Andrews.

[117]      Restitutionary quantum meruit is an equitable remedy. “Fairness is the touchstone of equitable justice”:  Goldex Mines Ltd v Revill (1974), 1974 CanLII 433 (ON CA), 7 OR (2d) 216 at 224, 54 DLR (3d) 672 at 680 per Arnup JA (cited in Argali Holdings Inc v Hoal Investments Ltd., 1995 CanLII 9170 (AB QB)). It would be unfair and unjust for Ms. Andrews to retain the benefit of those third-party services that Woodbridge has proved that it paid for. The evidence does not disclose a justification for Ms. Andrews’ retention of the benefit under any of the categories summarized in Moore. In particular, I cannot find on a balance of probabilities an intention to gift the third-party goods and services to Ms. Andrews.

[118]      On her own evidence, Ms. Andrews was aware that a number of steps were required to place her modular home on the lot. These were included in the $130,000 estimate in Exhibit D-5. Ms. Andrews testified to her knowledge that Woodbridge was hiring tradespeople as required, even if she was not present when they were providing services and materials. Various costs were brought to her attention. For example, she was directly involved in payment of the fee needed to join the local natural gas cooperative. This was a sizeable amount of money, some $3500. She wrote up a form of receipt with Ken Margison after the fact, confirming his work on the septic tank excavation, trenching for water, power and telephone. She paid Ms. McPeak directly for appliances (a cheque is in evidence in the sum of $3312.75 dated June 3, 2009). She bought her shed directly. 

[119]      Additionally, Ms. Andrews knew that she needed funding from her brother for fencing, landscaping and the garage. She knew that not everything was going to be free, certainly not services and materials she received from parties other than Woodbridge and the McPeaks.  

[120]      The question of the $130,000 budget does not appear to have been brought up by Mr. McPeak as the third-party costs were incurred. Ms. Andrews’ testified that she did not have specific discussions or phone calls about the third-party costs, or any costs, with Mr. McPeak as the work was being done. There were no discussions about the services and costs and no invoices were provided.

[121]      However, she was also never told that they would be free. The services provided by Mr. McPeak and other family members is different. It is not reasonable for Ms. Andrews to expect that these out of pocket expenses, as opposed to volunteer type effort, would not be her responsibility. 

[122]      There was no donative intent with respect to the proven third-party costs.  Ms. Andrews freely accepted everything that Woodbridge offered. Most of the out of pocket expenses were not invisible. They are traceable into the property.

[123]      Turning to the specific expenses claimed, with the exception of a few invoices that were issued to Mr. McPeak personally, or reference him as a contact person for Woodbridge, most of the invoices were issued to Woodbridge.  The amounts are from Woodbridge’s Brief filed on December 20, 2018.

[124]      Ken Margison received $150 from Mr. McPeak for digging in relation to the septic tank and utilities. Mr. McPeak had to do the work over himself. This cost was in evidence. I allow this as a recoverable cost. 

[125]      I find that Woodbridge made payments to third parties, in the sum of $46,490.60. While I have a broad discretion to determine the method to calculate a quantum meruit claim (Aerovac Systems Limited v Darwin Construction (Western) Ltd, 2010 BCSC 654 at para 49), there is no estimating or extrapolating that needs to be done here. The expenses are supported by documentation and deliverables and as noted roughly consistent with Exhibit D-5 in some instances.

[126]      The evidence of Chris Holden on this point is helpful. He is a Professional Quantity Surveyor who was called by Woodbridge and qualified as an expert. He was of the view that the third-party expenses which he reviewed are not out of line with commercial norms. He was given a total sum of around $49000. He did acknowledge that it is unusual that Woodbridge did not present the third-party costs in an invoice to Ms. Andrews if it expected reimbursement.

[127]      I allow Woodbridge’s claim for $46,490.60 for out of pocket expenses paid to third parties on the basis of restitutionary quantum meruit.

[128]      With no contract in place, I have to determine whether the test for restitutionary quantum meruit has been met in respect of services provided by Woodbridge directly, through Mr. McPeak.

[129]      The key piece of evidence here is 34-item list of services prepared by Mr. McPeak.  The services claimed by Woodbridge include:

[130]      From the materials, it appears that these services, grouped together, are valued by Woodbridge at $103,326.00.

[131]      Mr. McPeak contributed his time, intellect and energy to the sourcing and placement of the Alberta Beach Home (and in dealing with the First Wabamun Home and the Second Wabamun Home). His evidence at trial showed his extensive dealings with third-party suppliers, often squabbling over bills and service quality, and making decisions about what would work best for the Alberta Beach Home, such as what piling configuration was required, the size of the septic tank, and so on. From the time that Ms. Andrews began looking for her own home, Mr. McPeak was persistent in his willingness to help. Accordingly, Ms. Andrews was enriched.

[132]      However, the accuracy of the list of services is troublesome. It was not prepared contemporaneously with the provision of services, or even close to contemporaneously. Mr. McPeak himself confirmed that there were no time records, timesheets, notes, phone records, journal entries or any other records made to support the claim for services. A contractor or builder intending to charge for services would have acted in a business-like manner and kept such records.

[133]      Further, no invoice was ever issued and no demand for payment was made prior to the lien being served. Again, a contractor or builder intending to charge for services would have acted in a business-like manner and issued invoices on a regular basis or demanded payment in a timely fashion.

[134]      Mr. McPeak admitted at trial that the list of services was prepared for the purposes of litigation, with the intention of supporting a market value of $300,000 (Trial Transcript January 23, 2018, page 34, lines 32-35) for the Alberta Beach Home.

[135]      Mr. McPeak admitted that the list of services went through several iterations. The different versions are inconsistent with each other. For example, there is a list in evidence that has no time designations. Another list has time designations. A further list is again a list of tasks, with no time designations. It is not clear from these self-generated records when the particular services were provided.  Mr. McPeak confirmed this. The time allegedly spent was based on Mr. McPeak’s judgment as to what he thought was fair, not on actual numbers.

[136]      The multiple versions came about because the list was refined as the litigation unfolded. Mr. McPeak said that the process was like “drafting a letter, same thing . . . [i]nformation comes to you, other things as you draft a letter, you maybe draft that letter four times” (Trial Transcript, January 24, 2018, page 90, lines 15-16).

[137]      An additional concern comes from the time estimates themselves. They are, in some instances, misaligned with other evidence and with common experience. For example:

[138]      In addition, Mr. McPeak purports to charge a personal hourly rate of $100 for the services. There is no evidence that Woodbridge charged out Mr. McPeak’s services at this rate to other parties. Mr. McPeak seems to have tied his rate to an industry rate, but in evidence he simply characterized it as his personal rate. More importantly, he admitted that he did not inform Ms. Andrews of any hourly rates for services or equipment and as just mentioned, never provided any invoices for his services. I find this was determined after the fact, for litigation purposes.

[139]      Finally, it is impossible to distinguish between services rendered by Mr. McPeak on his own behalf and those rendered by Woodbridge, through Mr. McPeak’s agency. Woodbridge is the Plaintiff, not Mr. McPeak. Mr. McPeak is not a party to these proceedings. Mr. McPeak is not the same legal entity as Woodbridge, which is an incorporated company. A corporation has a legal personality that is separate from its shareholders, officers and directors: Salomon v A Salomon and Co, [1897] AC 22 (HL). There is no accounting between the corporation, Mr. McPeak and Ms. Andrews from which to draw any conclusions about who delivered the services. I have no evidence that Woodbridge is out of pocket for the services received by Ms. Andrews.

[140]      I cannot find on a balance of probabilities that Woodbridge suffered a deprivation in respect of the services provided by Mr. McPeak: see HAR Construction Ltd v DeMerchant Construction Ltd and DeMerchant (1991), 1990 CanLII 4001 (NB CA), 104 NBR (2d) 343 (CA).

[141]      However, even assuming that Woodbridge suffered a deprivation, the preponderance of evidence supports Ms. Andrews’ argument that there was donative intent.

[142]      The parties’ respective states of mind, at the time the services were rendered, must be considered. There is insufficient evidence that it was within anyone’s expectation that there would be an exchange of value, monetary or otherwise, for these services. It is more likely than not that the claimed services were provided to Ms. Andrews out of familial consideration, and that neither Woodbridge nor Mr. McPeak ever intended to charge Ms. Andrews for those services. There was an intention to give the services, they were accepted and delivered. There is no juristic reason to deprive Ms. Andrews of these benefits.

[143]      To support this claim, Woodbridge led expert testimony from Mr. Holden, whose report was commissioned by Woodbridge “to determine what reasonable costs would be for a project” (Letter from Mr. Holden, September 22, 2016) involving realty services, design services, project management and administration, “general requirements” during on-site construction, moving and decanting. His conclusion that the cost of the home and all work and materials required to place the home was $294,691.50 plus GST, less 168,500 paid by Ms. Andrews for a net of $126,191.50 ($132,501.08 with GST). $49,422.00 is for third party materials and services (which I have already addressed); $32,507.50 is for construction services and $43,262.00 is for administrative services.  

[144]      Mr. Holden, like the Court, could not have recourse to any agreement between Ms. Andrews and Woodbridge. Instead, the information that he used to quantify the value of the services came from Mr. McPeak. He was asked to provide a valuation of the of the probable cost of the items set out in the 34-item list prepared by Mr. McPeak.

[145]      Mr. Holden stated (Trial Transcript, October 15, 2018, page 64, lines 33-39):

[146]      Mr. Holden – not inappropriately - based his opinion on Woodbridge’s records of what it did and viewed this as a normal commercial transaction. He acknowledged that if Mr. McPeak’s time was free, the values in his report would have changed.  

[147]      Mr. Holden did not know when the 34-item list was prepared. He acknowledged that the normal industry standard would be to have comprehensive documentation tracking time and listing services in this type of project. However, he received no documents prepared concurrently with the completion of the project, nor did he receive evidence of rates charged by Woodbridge for Mr. McPeak’s time. Mr. Holden acknowledged that the accuracy of the 34-item list depends at least in part on Mr. McPeak’s accuracy in preparing the list.

[148]      Significantly, Mr. Holden did not know that Ms. Andrews and the McPeaks are related.  He was also unaware of other family involvement in some of the claimed services, such as when several members of the McPeak family packed, transported and unloaded the modular home when it was moved from Wabamun to Alberta Beach.

[149]       While I accept Mr. Holden’s evidence as conceptually valid, it ultimately is of limited use here. This is not a criticism of Mr. Holden. He provided a thorough analysis of the cost of the project, but is based on information prepared after the fact by Mr. McPeak, as agent (or not) of Woodbridge. Most importantly, it does not address the threshold question of what Woodbridge’s or Mr. McPeak’s intentions were when the services were provided.

[150]      I was asked by Woodbridge to draw an adverse inference from Ms. Andrews’ failure to call rebuttal expert evidence in light of Mr. Holden’s testimony. Because of my findings respecting the limitations of his evidence, I do not have to consider drawing any inferences about Ms. Andrews’ failure to lead expert evidence to rebut Woodbridge’s expert.

[151]      The broader context shows that Mr. McPeak was not the only family member or friend who helped Ms. Andrews to achieve her goal of buying the Alberta Beach Home and readying it for her occupation.  She benefited from the generosity of a large number of people, none of whom demanded recompense.  Members of Ms. Andrews’ family and friend community helped her with services that overlap or align with the Woodbridge services list. These include:

[152]      Mr. McPeak diminished the involvement of others, and minimized his knowledge of and relationships with others who helped Ms. Andrews. He complained that Kenneth Margison did a poor job, and said that he had only met Mr. Eames on the day of the move-in and perhaps another time at the site, and told Mr. Crudgington that Woodbridge had filed the lien in order to protect Ms. Andrews from Mr. Eames.

[153]       Mr. Eames says that he has known Ms. Andrews since 2007 and first met the McPeaks at a family gathering (Mother’s Day and Ms. McPeak’s birthday) in about 2009. He was invited as a guest, and accompanied Ms. Andrews. It is difficult to see how Mr. McPeak could have developed such a strong suspicion of Mr. Eames from only one meeting. I find Mr. McPeak’s efforts to diminish the force of the “family helping family” argument and bolster the commercial nature of the relationship unconvincing.

[154]      An additional fact which points to the non-commercial nature of the parties’ relationship is found in the treatment of the First Wabamun Home: the house was placed in Ms. Andrew’s name even before she made any payment, and when it was sold, she was directed how to dispose of the proceeds (none of which she retained).

[155]      A true relationship between a customer and a builder or contractor would not likely have involved this level of family and friend contribution. 

[156]      The lack of communication (and invoicing) from Woodbridge and Mr. McPeak throughout the process led Ms. Andrews to expect, quite reasonably, that this was a family helping family arrangement with respect to the services. The evidence does not support an inference that Ms. Andrews “ought to have known” that Mr. McPeak was not working for free and there would be a bill to pay.

[157]      There is no evidence that Ms. Andrews was ever told, impliedly or expressly, that she was being charged by Woodbridge for Mr. McPeak’s services, or that there was an hourly rate attached to his efforts (or the amount of the hourly rate). Ms. Andrews’ evidence was that there were discussions with the McPeaks, and “ . . .when they offered the help, there was never a question that I was going to be charged for this at any point, and family was helping family, so I wasn’t aware that there was going to be a cost” (Trial Transcript, October 16, 2018, page 42, lines 37-39).

[158]      The opportunities to communicate were plentiful. Ms. Andrews and the McPeaks spent a lot of time together. She was living in their property. For a time, she was providing companionship to Ms. McPeak’s mother.

[159]      When the parties did communicate respecting aspects of the project, (e.g., the septic tank, a decision about propane versus gas), Mr. McPeak did not bring up the subject of the cost of his services.

[160]      I find it to be more likely than not that Woodbridge had no intention to charge for the services rendered to Ms. Andrews by Mr. McPeak at the time that the services were rendered or in the immediate aftermath of Ms. Andrews moving into the Alberta Beach Home. The expectation of and demand for payment only arose after the relationship soured (this may have to do with matters unrelated to the build).

[161]      For the same reasons, I find donative intent with respect to the claim for equipment rentals. Items 25 and 26 of the items on Mr. McPeak’s list reference charges for equipment rental on a piece of Woodbridge equipment that he operated. He specifically said that the charge was for the machine only, not for himself, but in another instance, he charged for his services but not the machine rental. In fact, in his own evidence, Mr. McPeak said: “[i]n -- in a lot of cases, you'll see my time was free.  In reality, the equipment was charged and my time was free, so, I mean, it was just an extremely conservative approach” (Trial Transcript, January 23, 2018, page 51, lines 38-40). This may be characterized as conservative, but this inconsistency falls into place with the other evidence that supports donative intent.

[162]      In sum, I find that is more likely than not that Mr. McPeak’s services were provided to Ms. Andrews out of familial consideration, on his own, and that neither Woodbridge nor Mr. McPeak ever intended to charge Ms. Andrews for those services. I am satisfied that Ms. Andrews has established a juristic reason entitling her to keep this element of the benefit she received.

[163]      On November 19, 2010, Woodbridge registered a builder’s lien on title to the Alberta Beach Home, claiming $96,088.65. A Statement of Claim was filed on March 4, 2011.

[164]      The object of the Builder’s Lien Act is to prevent owners of land from benefiting from improvements to their land without paying for them: Earl F Wakefield Company v Oil City Petroleums (Leduc) Ltd, 1958 CanLII 46 (SCC), [1958] SCR 361 at 364, aff’d 1959 CanLII 427 (UK JCPC), [1959] 3 WLR 631, [1960] AC 18, 21 DLR (2d) 577 (PC); Maple Reinders Inc v Eagle Sheet Metal Inc, 2006 ABQB 150 at para 26, aff’d 2007 ABCA 247 at para 22; see also Iona Contractors Ltd v Guarantee Company of North America, 2015 ABCA 240 at para 22; Tervita Corporation v ConCreate USL (GP) Inc, 2015 ABCA 80 at para 8.

[165]      Section 41(1) of the Builder’s Lien Act requires a lien to be registered within the time period “commencing when the lien arises and  . . . terminating 45 days from the day that the last of the materials is furnished or the contract to furnish the materials is abandoned”.

[166]      There is a dispute respecting when the work was completed.

[167]      Ms. Andrews moved into the Alberta Beach home in July 2010. Mr. Eames gave evidence that Woodbridge and/or Mr. McPeak were last working on the property in August 2010.

[168]      The Statement of Lien indicates, on its face that “the work was completed or the materials were last furnished on October 9, 2010”, but at trial, Mr. McPeak testified that the work was not finished at the time that the lien was filed. He was adamant that Woodbridge was on site on October 9, 2010, but also that no records exist to substantiate this assertion. This is consistent with how this entire arrangement unfolded. Mr. McPeak said that the Statement of Lien referred to substantial completion, and there were issues of settling, perhaps warranty preservation, that remained outstanding. Equipment had to be left on the property to deal with those potential issues. Mr. McPeak said that the work was finally completed “much later than that” (Trial Transcript, January 25, 2018, page 40, line 21). Woodbridge never issued a Certificate of Substantial Performance under s 19(1) of the Builder’s Lien Act, possibly because no contract had ever been entered into (s 19(1) is predicated on the existence of a contract).

[169]      Woodbridge left a JCB skid steer (or similar piece of equipment), two flatbed trailers and a cube van at the property, and Ms. Andrews had to obtain a court order to have these items removed (and they were removed). That Order was granted by Master Schlosser on August 13, 2013.

[170]      Mr. McPeak said that the work was completed, in his view, when the court order was obtained. At Questioning, he said that materials were left on site and he had gone out to do some grading and fill holes, and the day that the equipment was removed was the day that the project was finished.

[171]      On its face, the lien says that the work was completed or the last materials were furnished on October 9, 2010. I do not have persuasive evidence that any work was done after August, 2010. I do not accept Mr. McPeak’s evidence that materials left on site meant that the work was not done. He filled out the lien document; he chose the date; he made the representation. The lien was filed out of time. I accept the evidence that the time period referenced in section 41(1) of the began in August, 2010. Even assuming a date of August 31, 2010, the lien was filed out of time.  

[172]      I have determined that Woodbridge’s claim for unjust enrichment is valid in part. It now has a judgment in its favour and may seek to enforce this judgement. The builder’s lien is no longer relevant. Further, in my view, a judicially-ordered sale under s 59(2) is not warranted in the circumstances.

[173]      Woodbridge seeks rent in the sum of $93,600 owed to Ms. McPeak by Ms. Andrews for Ms. Andrews’ use and occupation of the Wanyandi Home between 2006 and 2010. She had been paying utilities, but no rent was paid.

[174]      The claim is calculated at $1800 per month for 46 months and $900 for the first 12 months. The rental amount is based on the value of the home, which sold in 2014 for $685,000.

[175]      Mr. McPeak’s evidence is that “she [Ms. Andrews] had to live someplace . . . and paying rent . . . so the agreement was that she would pay rent” (Trial Transcript, January 23, 2018, pages 94-95) and that “if she wasn’t living here [i.e. the Wanyandi Home], she would have been living someplace, right, and paying rent . . . [a]nd I would have talked to her about it and said, what do you think, you know, what do you think, what do you think’s fair, you – you didn’t pay any rent, you lived for nothing, so what would have been fair” (page 95 Day 2, lines 6-10). He refers to it as an “agreement” in testimony.

[176]      He acknowledged that Ms. McPeak was the putative landlord and that Ms. McPeak had no relationship with Woodbridge. The basis for the claim is that Ms. McPeak expected to receive lost rent revenue from Woodbridge because she could not rent the property to someone else while Woodbridge’s client, Ms. Andrews, was living in the Wanyandi Home.

[177]      Ms. Andrews’ evidence is that she was invited to stay in the Wanyandi Home to help look after her aging aunt, Ms. Joan Baird (Ms. McPeak’s mother), that the issue of rent never came up, but she agreed to pay utilities. She said that she continued the utility payments that Ms. Baird had been making after she (Ms. Baird) left the home. The arrangement was entirely verbal. There was no specific date in evidence concerning when the verbal agreement was reached. Ms. Andrews said that she felt that it would have been very strange to approach family members and ask to document the arrangement. She only learned of the rental claim when she received the builder’s lien documentation.

[178]      Ms. Andrews’ brother, Mr. Crudgington, corroborated Ms. Andrews’ evidence on this issue. He testified that he talked to someone named “Gerald”, who said that after Joan Baird had moved out of the Wanyandi Home, Ms. Andrews wanted a place of her own, and she had originally moved in “to help with Aunt Joan who’s getting elderly and needed some care” (Trial Transcript, October 19, 2018, page 9 lines 22-23).

[179]      This claim fails for a host of reasons.

[180]      There was no written lease between Ms. McPeak and Woodbridge. The arrangement is undocumented. There is no evidence that rent was ever paid.  Mr. McPeak acknowledged that no demand for rent was made. Ms. Andrews was not asked to leave for non-payment of rent.

[181]      There is no evidence of an agreement between Ms. McPeak and Woodbridge, whereby Woodbridge was required to pay rent to Ms. McPeak for the Wanyandi Home. There is no evidence that Ms. McPeak took any action, whether through a formal demand or a filed claim, to recover rent from Woodbridge. There is no evidence that Woodbridge is actually out any money or has otherwise suffered a loss. Mr. McPeak confirmed that Woodbridge did not in fact pay rent to Ms. McPeak “to this point” (Trial Transcript, January 24, 2018, page 9 line 28). There is no evidence that Ms. Peak rented the home to another tenant after Ms. Andrews moved out, or the amount of such rent.

[182]      Significantly, Ms. McPeak did not even own the Wanyandi Home until December 19, 2008, when the property was transferred from Joan Baird to Ms. McPeak, after Ms. Baird moved out. Joan Baird had owned the property since 1995. Curiously, a transfer of land was signed in December, 2007 but not registered until a year later and the EPCOR utilities bill dated May 13, 2010 was still in Ms. Baird’s name.

[183]      I conclude that it is more likely than not that, because of the parties’ familial relationship, Ms. Andrews was invited and permitted to live in the Wanyandi Home rent-free, as a courtesy and a gift. Further, it is reasonable to infer that this arrangement was beneficial to Ms. McPeak for half the claimed period since it relieved her of arranging paid companionship or personal care for her mother. In my view, it is reasonable to infer that this claim for rent was devised after the fact once the main dispute arose.

[184]      Woodbridge will have judgment in the amount of $46,490.60 for proven third-party out of pocket expenses on a quantum meruit basis.

[185]      The balance of Woodbridge’s claim, including the claim for rent, is dismissed in its entirety.

[186]      Woodbridge’s builder’s lien and Certificate of Lis Pendens against title to the Alberta Beach Home shall be discharged forthwith.

[187]      At the outset of the trial, it was brought to the Court’s attention that Woodbridge had failed to disclose approximately 250 pages of documentation relevant to these proceedings. While Woodbridge’s counsel tried to filter the documents to those that were relevant, this did result in some extra trial time and Ms. Andrews’ counsel only had a short time to review the documents.

[188]      The importance of robust and thorough discovery has been emphasized in many decisions over decades of civil litigation in our province. Rule 5.10 specifically requires parties to engage in continuous disclosure of relevant and material records even if they are found or created after a party has filed its Affidavit of Records.

[189]      During the trial, I awarded $1000 in costs to Ms. Andrews in relation to this late disclosure.

[190]      With respect to the balance of the action, there has been mixed success. Accordingly, each party shall bear their own costs of the action on the whole, with the exception of $1000 in costs that I award to Ms. Andrews, payable by Woodbridge.