Date: 20000712
Docket: T-627-00
BETWEEN:
ED WAHL BOAT BUILDERS
AND REPAIRS LTD.,
Plaintiff,
- and -
PAUL HOLM AND ANTOINETTE HOLM,
THE OWNERS AND ALL OTHERS INTERSTED
IN THE SHIP "NORSE-POL" OFFICIAL NUMBER 1058601,
Defendants.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This action arises out of a building contract for the 64 foot yacht Norse-Pol. The builder, Ed Wahl Boat Builders and Repairs Ltd. ("Wahl"), claims a balance owing for additional work in the amount of $330,000.
[2] At issue in the present motion is paragraph 13 of the Statement of Claim, by which Wahl seeks recovery through an unjust enrichment plea, which the Defendants seek to have struck out, the provision of particulars of various other allegations in the Statement of Claim and an extension of time within which to file a defence.
[3] I have struck out paragraph 13 of the Statement of Claim as dealt with in the reasons which follow. Particulars and the necessary time extension are covered in an Order of even date.
ANALYSIS
[4] Paragraph 13 of the Statement of Claim is as follows:
| In the further alternative, the Plaintiff claims damages for unjust enrichment against the Holms in the amount of $330,000. |
The Defendants say that this paragraph does not contain the requisite elements by which to plead a claim for unjust enrichment.
[5] The principles upon which unjust enrichment is based were set out by Mr. Justice Dickson, as he then was, of the Supreme Court of Canada in Rathwell v. Rathwell (1978), 83 D.L.R. (3d) 289 at 306:
| As a matter of principle, the Court will not allow any man unjustly to appropriate to himself the value earned by the labours of another. That principle is not defeated by the existence of a matrimonial relationship between the parties; but for the principle to succeed, the facts must display an enrichment, a corresponding deprivation and the absence of any juristic reason - such as a contract or disposition of law - for the enrichment [emphasis added] |
[6] Mr. Justice Dickson, writing for the majority in Pettkus v. Becker (1981), 117 D.L.R. (3d) 257 at 273-274, again set out the three elements, noting that the approach was supported by the general principles of equity that had been fashioned by the Courts for centuries. As Chief Justice, Mr. Justice Dickson had the opportunity to revisit the area in Sorochan v. Sorochan (1986), 29 D.L.R. (4th) 1 at page 4 and following, where he specifically set out the requirements of unjust enrichment to include first, an enrichment; second, a corresponding deprivation; and third, the absence of any juristic reason for the enrichment.
[7] On the face of the Statement of Claim, taking for the purposes of this motion the allegations as proven, there is no cause of action for unjust enrichment. Rather there is only a bare plea of unjust enrichment, but no particulars of either the enrichment or the corresponding deprivation. This is something which might be rectified either by particulars or through an amendment. However the major difficulty for the Plaintiff lies in the presence of a juristic reason for the enrichment, the contract to build the Norse-Pol, which the Plaintiff pleads in paragraph 5 of the Statement of Claim. There is, however, another aspect to this.
[8] In finding that there is no cause of action for unjust enrichment, I have taken the Statement of Claim at face value, as I must by Rule 221(2), without the assistance of affidavit evidence. The Defendants say that they wish to get into evidence the fact that they also rely upon the existing building contract, a contract said to govern the entire relationship between Wahl and the Defendants. While I may not look at this evidence of reliance upon the contract, or at the contract itself, in the context of want of a cause of action, I may consider the contract in the context of paragraph 13 of the Statement of Claim being scandalous, frivolous or vexatious, one of the grounds set out in the Defendants" motion. Counsel for the Defendants advises the Court that the Defendants admit and rely upon the building contract, which is Exhibit "C" to the Affidavit of Ms. Lara Petrescu. Paragraph 7 of the building contract governs alterations and additions to the Norse-Pol and payment for that extra work.
[9] The test which I must apply, in striking out paragraph 13 of the Statement of Claim, is that it must be plain and obvious that the plea will not succeed. That is the situation here.
CONCLUSION
[10] Paragraph 13 of the Statement of Claim is struck out, without leave to amend, on the basis both that it does not disclose a reasonable cause of action and that it is frivolous or vexatious in that the building contract, upon which both sides rely, governs additional work, being alterations and additions and also sets out the payment provision. Moreover if, for some presently unknown reason, a trial judge were to decide that the building contract, a fairly extensive document of 90 pages, which appears properly executed, ought to be disregarded, Wahl is perfectly well protected by its alternate claim of quantum meruit.
(Sgd.) "John A. Hargrave"
Prothonotary
July 12, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-627-00
STYLE OF CAUSE: ED WAHL BOAT BUILDERS AND REPAIRS LTD.
v.
| PAUL HOLD AND ANTOINETTE HOLM, THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP "NORSE-POL" OFFICIAL NUMBER 1058601 |
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: May 15, 2000
REASONS FOR ORDER OF HARGRAVE P.
DATED: July 12, 2000
APPEARANCES:
Ms. Judith Rost FOR PLAINTIFF
Mr. Glenn Morgan FOR DEFENDANT
SOLICITORS OF RECORD:
Alexander Holburn
Vancouver, BC FOR PLAINTIFF
Davis & Co.
Vancouver, BC FOR DEFENDANT
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