COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Skibinski v. Community Living British Columbia,

2012 BCCA 17

Date: 20120113

Docket: CA038615

Between:

Sheila Elizabeth
Skibinski

Respondent

(Plaintiff)

And

Community Living
British Columbia and Her Majesty the Queen in Right of the Province of British
Columbia as Represented by the Ministry of Children and Family Development

Appellants

(Defendants)

Before:

The Honourable Mr. Justice Low

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Hinkson

On appeal from:
Supreme Court of British Columbia, October 26, 2010
(
Skibinski v. Community Living British Columbia
, 2010 BCSC 1500,
Chilliwack No. S18769)

Counsel for the Appellant,
Community Living British Columbia:

J.G. Morley

Counsel for the Respondent:

F.W. Hansford, Q.C.,
  A.W. Bevan & D.G.R. Sands

Place and Dates of Hearing:

Vancouver, British
  Columbia

November 14 and 15,
  2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January
  13, 2012

Written Reasons by:

The Honourable Mr. Justice Low

Concurred in by:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Hinkson

Reasons for Judgment of the Honourable
Mr. Justice Low:

[1]

Since 14 July 2007, the respondent, Sheila Skibinski, has been the
full-time caregiver of Lynn S., a severely disabled adult, excluding only a brief
period during which Lynn was hospitalized.

[2]

The respondent, Community Living British Columbia (CLBC), is a
provincial statutory body charged with offering to fund the care of disabled
adults within budgetary limits. It often fulfills this mandate by entering into
contracts with professional caregivers for the benefit of specific individuals.

[3]

CLBC and Ms. Skibinski failed to agree to the terms of a contract with
respect to the full-time care of Lynn by Ms. Skibinski.

[4]

On 11 March 2008, Ms. Skibinski commenced an action against CLBC and the
Province of British Columbia for compensation for the care of Lynn. Following a
29-day trial, the presiding judge provided written reasons for judgment on 26
October 2010, indexed at 2010 BCSC 1500. He fixed the amount of compensation
payable by CLBC to Ms. Skibinski at $334,308. This award covered the period of
14 July 2007 to 11 October 2010. The parties were to calculate the compensation
from that date to 26 October 2010. The parties approved the formal order with a
somewhat lesser judgment amount of $308,042.53, apparently after making some
adjustments, to which I will later make reference.

[5]

The trial judge dismissed claims made by Ms. Skibinski against the Province
of British Columbia. Ms. Skibinski has not appealed that part of the order.

[6]

The trial judge rejected two causes of action advanced by Ms. Skibinski
against CLBC, but he found that she was entitled to compensation on the basis
of unjust enrichment. He relied on expert evidence to fix the amount.

[7]

CLBC appeals. It does not dispute that Ms. Skibinski is entitled to
compensation for her services from 24 October 2007 until 15 January 2008. It
says the trial judge erred in awarding compensation outside those dates.

[8]

As will be seen, 15 January 2008 is a significant date because CLBC
formally terminated contract negotiations with Ms. Skibinski by a letter of
that date.

[9]

Ms. Skibinski takes the position that if the 15 January letter has the
effect claimed by CLBC, she is entitled to compensation from 11 July 2007 (the
date on which her full-time care of Lynn began) until 24 January 2008 (the date
on which she received the letter of 15 January).

[10]

The order does not address the question of payment for Lynns care
post-judgment. We are told that Lynn continues to reside in the care of Ms.
Skibinski.

Facts

[11]

Lynn was born in 1962 with severe developmental disabilities. She has an
IQ of approximately 41, and a history of behavioral problems marked by verbal
and physical aggression. In 2006, she suffered further brain damage when
physicians induced a coma in order to administer dialysis. She is unable to
live independently and requires a high level of care. She also suffers from
severe medical problems, including insulin-dependent diabetes, congestive heart
failure, and congenital kidney failure, for which she must receive regular
dialysis. She also requires rigorous dietary supervision. Her life expectancy is
short, a matter of a few years.

[12]

CLBC is a provincial crown agency under the
Community Living
Authority Act,
S.B.C. 2004, c. 60. Its role is to provide support to adults
with developmental disabilities. CLBC provides various services, including
residential programs, community inclusion day programs, and respite services
for residential care providers, to over 1200 developmentally disabled adults in
B.C. It delivers these services through its own employees and through
agreements with third parties. The agencys funding comes from the provincial
government; it is statutorily obliged to develop a service plan and budget, and
is proscribed from running a deficit. It enjoys a certain degree of financial
flexibility, and is permitted to deviate from its support guidelines to ensure
that it can meet the special needs of particular clients.

[13]

Ms. Skibinski is a qualified care provider with more than thirty years
experience. She specializes in working with individuals with autism and other
disabilities. Since 1992, she and her family have owned a rural property in
Mission, B.C. where they provide residential care to adults with developmental
disabilities. The trial judge described Ms. Skibinski as a very capable and
gifted service provider in her field [who] has dedicated herself to the care of
the developmentally challenged adults, taking pride in her skills and methods (para.
42).

[14]

Ms. Skibinski first encountered Lynn in 1978, while working with
students with disabilities at Arthur Peake School. This marked the beginning of
a long-standing association which included a two-year period of residential
care in the early 1980s. In 1992, at the Ministrys request, Ms. Skibinski
began providing a day care program for Lynn. This contract expired in December
2007 and is referenced in some of the correspondence between the parties reproduced
below.

[15]

In the summer of 2007, Lynns mother, Pat Chalmers, then in her
mid-seventies and in poor health, decided she was no longer able to care for
Lynn at her home. The Abbotsford police had received complaints about Lynns
trespassing and aggression toward neighbours. On 28 June 2007, at the request
of police, Ms. Chalmers had her daughter admitted to the Abbotsford
hospitals psychiatric ward, where she remained for almost two weeks.

[16]

During this time, Ms. Chalmers proposed to CLBC that Ms. Skibinski assume
full-time care of Lynn. CLBC disagreed on the basis that Ms. Skibinski was
already providing care to two full-time residents, the maximum number permitted
under an applicable law in the absence of a particular licence. Ms. Chalmers
refused alternative care arrangements offered by Bruce Morgan, a CLBC
representative.

[17]

The hospital, meanwhile, requested that Lynn be discharged due to her
disruptive and unmanageable behavior. On 11 July 2007, at Ms. Chalmerss
request, Ms. Skibinski took Lynn into her care at her Mission residence. CLBC
maintained its position that Ms. Skibinski was already caring for the maximum number
of full-time residents.

[18]

In late October, Ms. Skibinski dropped off one of her other residential
clients at a CLBC office. This paved the way for contract negotiations to begin
between CLBC and Ms. Skibinski for Lynns full-time care. However, the parties
were unable to agree on the appropriate level of remuneration. Ms. Skibinski
insisted that she was providing Lynn with the equivalent of 24-hour care, and
that the nature and extent of this care did not fit within any of CLBC's
existing categories. CLBC, however, was of the view that Lynn's requirements
fell within the residential or home share category of care, with some extra
funding due to her special needs.

[19]

During these negotiations, Ms. Skibinski returned Lynn to the
psychiatric ward at the hospital. The trial judge found that the evidence
conflicted as to her reasons for doing so. Lynn struggled in the hospital,
requiring physical restraint and medication.

[20]

Proper consideration of the unjust enrichment issue in this case rests
on the correspondence that passed between the parties as they attempted to form
a contract.

[21]

On 20 December 2007, Mr. Birdi, the manager of quality service for the
Upper Fraser Region of CLBC, sent a letter to Ms. Chalmers headed Re: Support
Services for Lynn [S.] in which he said he was prepared to allocate
$6,632.07 per month to support Lynn, excluding any financial contribution that
Lynn will make directly to the caregiver. This offer was followed by a
breakdown of the total amount and a paragraph that discussed additional payment
for travel costs to a hospital in New Westminster for Lynns dialysis
treatments. (The letters statement regarding a financial contribution from
Lynn is a reference to a monthly payment of about $666 Lynn then received,
apparently under the
Employment and Assistance for Persons with Disabilities
Act,
S.B.C. 2002, c. 41.)

[22]

The letter concluded with the following (emphasis added):

I acknowledge your preference is for Ms.
Skibinski to provide the residential services and the community inclusion for Lynn.
I am prepared to offer this contract to Ms. Skibinski provided that she accepts
the allocated funds mentioned above
and our contractual expectations of
caregivers.

Please be advised that should Ms.
Skibinski not be prepared to accept this contract offer, I am prepared to offer
residential and community inclusion services to Lynn through another service
provider in the region. As of the date of this letter, we have a home share
provider available to provide residential care to Lynn. This caregiver is a
registered nurse and has experience in providing services to individuals who
may have a need for medical supports.

If you would like us to propose this service
provider, please let me know by December 27, 2007 and a Quality Service Analyst
will make arrangements for you and the service provider to meet and discuss the
next steps to providing residential and community inclusion services for Lynn.

I appreciate and
acknowledge that both Sheila Skibinski and yourself have authorized Dale Sands,
Barrister & Solicitor, to represent your interests and by extension,
interests of Lynn. Our practice is to work directly with individuals and their
families and service providers. Therefore I have addressed the reply to you. If
and when we have the agreement on a service provider, we will finalize the
contractual arrangements with the service provider.

[23]

Mr. Sands responded to this letter the next day, 21 December 2007. His
letter is headed by the words Without Prejudice. He represented both Ms.
Chalmers and Ms. Skibinski. He proposed a monthly payment to Ms. Skibinski of
$8,722.43 with the following additional terms:

(3)        retro-active to July 1, 2007;

(4)        includes a start-up fee of
$1,500.00;

(5)        includes a Cost Of Living
Adjustment annually; and

(6)        for
the life-time of [Lynn].

[24]

As of the date of this letter, Lynn was in hospital. The next paragraph
of this letter limited the time for acceptance by CLBC of the contract
proposal:

If the
Counter-proposal is accepted by 12:00 noon on December 24, 2007, and you provide
my client with a rental car until funding is released to my clients, then Ms.
Skibinski can bring [Lynn] home from the hospital as early as the afternoon of
December 24,2007 (in time for Christmas). You may indicate your acceptance by
phone call to my office or by faxing a letter to me at 604-820-4066.

[25]

The letter concluded with the following perplexing paragraph:

Should this
matter go to trial, I reserve the right to bring this letter to the attention
of the Court on the issue of costs following the trial, in accordance with the
decision of
Calderbank v. Calderbank
[1975] 3 All E.R. 333.

[26]

The litigious tone of this concluding paragraph is difficult to
understand. At the time the letter was written there was no compelling need for
Lynn to return from the hospital to the care of Ms. Skibinski. CLBC had
proposed an alternative caregiver in the event it did not enter into a contract
with Ms. Skibinski. Although it might have been appropriate to adopt a
litigious tone with respect to a claim for past care, it is difficult to
understand how, in the circumstances, the subject of future care could have
litigation implications. The main purpose of the letter was to attempt to
negotiate a contract for future care. This curious paragraph might lie at the
heart of the problem in this case. There seems to have been a mindset on the
part of Ms. Skibinski that CLBC was legally obligated to contract with her for
Lynns future care.

[27]

CLBC was not so obligated.

[28]

Apparently Ms. Chalmers received a copy of the letter written by Mr.
Sands. In a letter dated 24 December, Mr. Birdi sent a counter-offer to Ms.
Chalmers, providing a copy to Ms. Skibinski. This proposal included an increase
in the monthly amounts CLBC would pay for Lynns care from 1 January 2008. On
that issue, I believe the parties offers were at that point approximately $1,200
per month apart.

[29]

They were not
ad idem
on other significant matters. CLBC offered
to pay retroactively only from 1 November 2007 in the total amount of $9,807.86;
the contract would be for one year; and there would be no COLA clause. Mr.
Birdis letter is silent as to payment of a $1,500 start-up fee but his
letter implicitly rejects that suggestion. The letter included this sentence:

Contract renewal
is subject to contractor's performance and compliance with the standards as
outlined in the body of the contract.

[30]

The trial judge found that CLBC entered into
contracts on a yearly basis. It is difficult to understand how Ms. Skibinski
could have expected to negotiate a contract for the lifetime of Lynn or how the
court could have contemplated a compensation period beyond the normal contract
length. It is equally difficult to understand how Ms. Skibinski could have
expected a COLA clause or a start-up fee.

[31]

On 27 December 2007, Lynn left the hospital and returned to the care of
Ms. Skibinski.

[32]

Ms. Skibinski met with a representative of CLBC on 28 December. On 8
January 2008, Mr. Birdi wrote to Ms. Skibinski as follows (emphasis added):

I understand that on December 28, 2007, you reviewed
my letter of offer of December 24, 2007 (attached) with our Regional Financial
Manager, Jon Cruz. In this letter, I had outlined funding level and terms of
contract should you wish to accept our offer of a contract for delivering
residential services to Lynn [S.].

I further
understand that on December 28, 2007
you advised
Jon Cruz
that you
were not prepared to accept our contract offer. Therefore, please be advised
that based on this information, I am rescinding my offer to contract with you
for residential services for Lynn [S.].

[33]

Mr. Sands replied on 10 January 2008:

I advise that I revoke all offers by my
clients to settle the contract dispute in the above-captioned matter. On behalf
of my clients:

(1)        I further
advise your contract offer, set out in your correspondence to Ms. Chalmers of
December 24, 2007 and copied to Ms. Skibinski, is rejected;

(2)        I enclose
invoices signed and dated by Ms. Skibinski for her services and disbursements
incurred for [Lynn] from July, 2007 to December 31,2007, totaling $83,942.02
plus accrued interest to date of 19.25% per annum (the Debt); and

(3)        I hereby
demand that the Debt be paid, in full, on or before 5:00 p.m. on January 18, 2008.

I further advise that if the Debt
is not paid as aforesaid, my instructions are to issue a
Writ Of Summons and
Statement Of Claim
in the Supreme Court of B.C. without further notice to
you.

Although this letter is not written on a Without Prejudice
basis, I further advise that should this matter go to trial, I reserve the right
to bring this letter to the attention of the Court on the issue of costs
following the trial, in accordance with the decision of
Calderbank v. Calderbank
[1975] 3 All E.R. 333.

[34]

Mr. Birdi responded with a letter to Ms. Skibinski dated 15 January
(emphasis added):

Please be
advised that I am not prepared to accept your claim for these services. Under
Contract Number FL0191CF01, Community Living British Columbia (CLBC) has
entered into an agreement with you to provide day services only to Lynn [S.]
and you receive a monthly payment for these services as set out in that
contract.
There is no other contract, or agreement, in effect between you
and CLBC to provide additional supports to Lynn [S.]. Your decision to provide
additional supports to Lynn [S.] was, and continues to be, between you, Lynn
and her family and it is without the consent, agreement, or approval of CLBC.

[35]

Mr. Sands continued to send invoices to CLBC, accompanied by a running
total. On 15 February, Mr. Birdi responded by a letter to Ms. Skibinski
refusing payment. Mr. Birdi wrote (emphasis added):

Please be
advised that I am not prepared to accept your claim for these services. There
is no contract, or agreement, in effect between you and CLBC to provide care to
Lynn [S.].
Your decision to provide

supports to Lynn [S.] was, and
continues to be, between you, Lynn and her family and it is without the
consent, agreement, or approval of CLBC.

Please also be
advised that your contract with CLBC to provide day supports (community
inclusion) to Lynn [S.] has been expired since December 31, 2007. We had
offered to renew this contract with you; however, it is my understanding that
you have refused to renew the contract. Therefore, please note that at this
time there is no contract in effect between yourself and CLBC with regard to
services for Lynn [S.].

[36]

Mr. Birdi repeated CLBCs position in identical words in a letter dated
7 March. Ms. Skibinski brought this action four days later, naming both CLBC
and the Province of British Columbia as defendants.

Pleadings

[37]

Ms. Skibinski pleaded in her statement of claim that the parties had
entered into a contract with only one term, namely price, left to be resolved. This
was a difficult pleading to maintain in light of the correspondence, set out
above, that had passed between them. The prayer for relief includes a claim for
debt, in the amount of $117,450.80, to February, 2008 ... as well as debt,
post-February 29, 2008 until the date of judgment, in the additional amount to
be invoiced monthly by ... [Ms.] Skibinski for services ...  There was also a
claim for contract interest at 19.25% per annum.

[38]

I am at a loss to understand the basis for invoicing and pleading these
high amounts. The claims do not seem to have anything to do with what transpired
during the dealings between the parties.

[39]

There were additional pleadings of promissory estoppel and damages for
mental distress. Unjust enrichment was pleaded as an alternative to the claim
in contract.

Trial judgment

[40]

The trial judge noted that the strained relationship between CLBC and
Ms. Skibinski predated the failed contract negotiations of December 2007
January 2008. In particular, CLBC's requirement that caregivers issue regular
reports on their clients was a long-standing source of friction; Ms. Skibinski
felt that these requirements conflicted with her obligation to protect her
clients privacy. While he stressed that this particular conflict had been
resolved by December 2007, the trial judge found that both parties b[ore] some
responsibility for the atmosphere of hostility in which negotiations took
place (para. 219). He took note of Ms. Skibinski's stress and depression
[and] seemingly limited capacity to see things from CLBC's perspective and of
CLBCs failure to take the managerial initiative to communicate with [Ms.
Skibinski] at an earlier stage, to comprehensively acknowledge her concerns
and  failure also to fully explain the funding process (also at para.
219).

[41]

I pause here to observe that these findings, although properly included
as part of the background, have no bearing on the unjust enrichment analysis. This
case is about the legal effect of the relationship between the parties in light
of the letters that passed between them during contract negotiations. Fault for
the breakdown of these negotiations is not generally relevant, except perhaps
on the issue of whether Ms. Skibinski acted officiously in continuing to provide
care for Lynn after 15 January 2008.

[42]

Ms. Chalmers could not afford private care for her daughter. As noted by
the trial judge at para. 252 of his reasons, Ms. Chalmers testified that she
felt Ms. Skibinskis home provided the best place for her daughter and that no
one else had ever come close over the years to providing the care the
[Skibinskis] had given. She wanted [Lynn's] last years to be as healthy and
happy as possible.

[43]

The relationship between Lynn and Ms. Skibinski was characterized by the
trial judge as a familial bond; he observed that [d]espite her low
intelligence, [Lynn] can communicate to some extent and clearly feels human bonds
and affections (para. 294). He also found that Ms. Skibinski had been able to
manage [Lynn's] behaviour more effectively than anyone else (para. 255).

[44]

CLBC does not dispute that Ms. Skibinski had a good relationship with
Lynn and that she was at least initially the best placed provider. However,
the evidence does not support the conclusion, and the trial judge did not find,
that Ms. Skibinski was the only person who could provide Lynn with the care she
needs.

[45]

It is important to note that the trial judge, at para. 105 of his
reasons, observed that Ms. Chalmers acknowledged that if [Ms. Skibinski] were
unable or unwilling to provide care, another suitable caregiver would have to
be found.

[46]

The trial judge rejected Ms. Skibinskis claims that CLBC was liable in
contract or on the basis of promissory estoppel. He also rejected a claim for damages
for mental distress. Ms. Skibinski does not contend on appeal that the
trial judge erred in any of these findings.

[47]

At para. 127 of his reasons, the trial judge concluded that CLBC owed
[Lynn] and her mother a continuing statutory obligation to provide [Lynn]
support for community living and that this entitlement is not a matter of
discretion. He added that this does not in any way constitute an interference
with whatever other discretion [CLBC] may have.

[48]

In the next paragraph, the judge described the duty as being (my
emphasis) to
offer funding
... in an amount that accords with [Lynns]
particular needs, its statutory obligations, its policy guidelines and its
wider ... obligations to the community to distribute funding to eligible
applicants in an equitable way. He added (my emphasis): [
CLBC] did not owe
[Ms. Skibinski] or [Lynn] a statutory obligation to pay whatever amounts [Ms.
Skibinski] demanded
. It should be added that CLBC was not obliged to pay
any caregiver any greater amount for the care of Lynn than it determined, in good
faith, was reasonable with regard to its policies and its budgetary constraints.

[49]

Assuming the above is an accurate description of CLBCs statutory
obligations, there can be no suggestion that CLBC did not live up to those
obligations in attempting to negotiate a contract with Ms. Skibinski and in
dealing with Lynns committee. Ms. Skibinski did not accept CLBCs contract
offer and Ms. Chalmers, who had control over Lynns person and estate,
would not consent to another caregiver.

[50]

At para. 129 of his reasons, the trial judge concluded that CLBC, absent
bad faith, owed Ms. Skibinski no legal obligations related to the services [she]
has provided, other than those that could arise in common law. I agree with
this conclusion. Ms. Skibinski had no statutory rights and she was required to
prove her claim under the common law.

[51]

Following an extensive discussion of the circumstances of this case and
the law of unjust enrichment, the trial judge summarized his findings, at para.
301, as follows:

1.         The plaintiff provided necessary services and
incurred expenses of a kind the defendant was obligated to fund.

2.         The defendant likely would have had to pay someone
for those expenses and for performance of those necessary expenses and incurred
services.

3.         There was a reasonable expectation she would
receive something for her services despite the absence of agreement. Donative
(or gratuitous) intent cannot be inferred.

4.         Her conduct was not officious, for the reasons
given, most notably the finding that to the extent the plaintiffs conduct
deprived the defendant of a significant interest, it can be restored by taking
these interests into account when ordering compensation. Accordingly, the
plaintiffs conduct was not offensive to the degree recovery is completely
barred.

5.         Therefore, analysis based on the reasonable
expectations of the parties does not provide a juristic reason to allow it to
retain whatever benefit it has received, with the exception of the day program
in effect until [31 December 2007].

6.         Considering fairness
to both parties, it is fair and just for the defendant to disgorge the benefit
it has received.
Peel
[para. 61]. Fairness encompasses the defendants
legitimate concerns about its need to exercise its discretion, taking into
account its fiscal limits, statutory and policy guidelines and obligation to
the community to distribute its resources in an equitable way. This must be
considered when assessing compensation, as discussed in these reasons.

Grounds
of appeal

[52]

Although I state them in a different manner, CLBC raises three grounds
of appeal:

(1)      the trial judge erred in
finding that Ms. Skibinski, in part because she acted as a necessitous
intervenor in taking Lynn into her full-time care in July 2007, was entitled to
compensation on the basis of unjust enrichment;

(2)      the judge erred in finding
that Ms. Skibinski was entitled to compensation on the basis of unjust
enrichment after contract negotiations between the parties had broken down;
and,

(3)      in the
alternative, the judge erred in awarding compensation in an amount more than
CLBC was prepared to pay under contract, and in failing to discount the award
for non-monetary terms of which CLBC did not receive the benefit.

Necessitous intervention

[53]

Although he did not include his findings on necessitous intervention in
the above summary, the trial judge determined that CLBC was liable to pay Ms.
Skibinski for the care of Lynn for an (arbitrary) eight month period starting
on 11 July 2007 on this basis. The award on this analysis extended to 11 March
2008, which coincides with the date this action was commenced. (As will be
seen, Ms. Skibinski is entitled to compensation for most of this period on a
quantum
meruit
basis.)

[54]

It is my opinion that the judge erred in finding that Ms. Skibinski
acted as a necessitous intervenor and was entitled to compensation as a result.
Necessitous intervention is a very limited cause of action, having its origins
in marine shipping cases. Like unjust enrichment, in appropriate cases it
imposes liability for services rendered outside the law of contract.

[55]

The trial judge discussed necessitous intervention at some length. He
appears to have treated it as a route to a finding of unjust enrichment,
probably on the element of absence of juristic reason. In my opinion, this
discussion was unnecessary and confusing.

[56]

Prior to 11 July 2007, there was extensive discussion about Lynns
placement among those concerned with Lynns care, including representatives of
CLBC. As already noted, it was CLBCs position that Ms. Skibinski could not
take Lynn into her full-time care without being in breach of certain licensing
requirements. CLBC was prepared to arrange for another placement but was met
with opposition until Ms. Skibinski, with Ms. Chalmerss approval, acted
unilaterally on 11 July.

[57]

These circumstances cannot be characterized so as to justify application
of the law of necessitous intervention. In determining whether the cause of
action is made out and a remedy is available, the cases in this area of the law
turn on whether the plaintiff provided necessaries to the defendant when it was
impractical to obtain instructions from the defendant: see
Matheson v. Smiley
,
[1932] 2 D.L.R. 787 (Man. C.A.), in which a patient could not give instructions
for needed medical services and his estate was liable for the cost of the
services; and, in contrast,
Soldiers Memorial Hospital v. Sanford
,
[1934] 2 D.L.R. 334 (N.S.S.C.), in which a patient was not liable to pay for
medical services after he was taken to the hospital under arrest and stated he
did not want to be there; see also
Black v. Edenwold
, [1931] 1 D.L.R.
577, [1930] 3 W.W.R. 529 (Sask. C.A.).

[58]

Assuming that CLBC, not being a direct recipient of the services provided,
was a person contemplated as a beneficiary of the services under this area of
the law, it was not impractical for Ms. Skibinski to seek its instructions. Its
instructions were in fact sought and it made its views known. Given the
circumstances, it cannot be said that the law of necessitous intervention has
any application, either as a stand-alone cause of action or as part of an
unjust enrichment analysis. In particular, the concept can have no relevance to
the legal positions of the parties following Mr. Birdis letter of 15 January
2008.

Unjust enrichment

[59]

CLBC does not dispute that it is liable on a
quantum meruit
basis
to pay Ms. Skibinski for the care of Lynn from late October 2007 (when she
reduced her full-time care clients from three to two) until 15 January 2008. It
concedes that during this period the care was provided with CLBCs acquiescence
and with a reasonable expectation by Ms. Skibinski that she would receive
payment. I will return to this topic after I have discussed the unjust enrichment
claim as it pertains to the period from 15 January 2008 to the date of the
trial judgment some 33 months later.

Cause of action

[60]

In
Garland v. Consumers Gas Co.
, 2004 SCC 25, [2004] 1 S.C.R.
629, Iacobucci J., for the Court, stated the law of unjust enrichment with
reference to earlier leading authorities of the Court:

30        As a general matter,
the test for unjust enrichment is well established in Canada. The cause of
action has three elements: (1) an enrichment of the defendant; (2) a
corresponding deprivation of the plaintiff; and (3) an absence of juristic
reason for the enrichment (
Pettkus v. Becker
, [1980] 2 S.C.R. 834, at p.
848;
Peel (Regional Municipality) v. Canada
, [1992] 3 S.C.R. 762, at p.
784) ...

Enrichment

[61]

In items 1 and 2 of his summary set out above, the trial judge concluded
that Ms. Skibinski had provided services that CLBC was obligated to fund and
that CLBC likely would have had to pay someone for those services. With
respect, it does not follow from these conclusions that CLBC was enriched as a
result. The analysis is factually incomplete.

[62]

I am unable to agree that CLBC obtained a benefit as a result of the
care Ms. Skibinski provided to Lynn following termination of the contract
negotiations. Ms. Skibinski did not provide the care to CLBC. Although
Peel
and
Garland
establish that a benefit may be negative (such as an avoidance
of an expense that might otherwise have been incurred), this principle is not
applicable to the present case. The evidence is that CLBC operates under a
budget fixed by government. At the relevant time, there was a waiting list of
approximately 40 adults in the Upper Fraser Region in need of various services.
It was Mr. Birdis evidence that wait lists are necessary because of funding restraints.

[63]

It follows that CLBCs not paying for Lynns care did not increase the
amount of money in its coffers, except perhaps temporarily within the current
fiscal year. Within its budget, it merely applied elsewhere the money it might
have paid for Lynns care. For this simple reason, it cannot be said that CLBC
was enriched by the service given to Lynn by Ms. Skibinski.

[64]

The trial judge concluded that CLBC nevertheless benefitted because it
had in some manner set aside funds pending the outcome of this lawsuit. At para.
167 of his reasons, the judge referred to the evidence of Mr. Birdi that CLBC
had set money aside to meet the possible eventuality of [Ms. Skibinski]
succeeding in her claim. The judge concluded that this money was probably
invested with a return and that the investment return rebutted CLBCs argument
that money that would otherwise have gone to payment for Lynns care went to
the benefit of others in need.

[65]

I consider this conclusion to be merely speculative. There was no
evidence as to the amount of money CLBC had set aside, or that it had been
invested. The evidence on this point was sketchy at best. The issue arose only
in cross examination of Mr. Birdi. He was asked if CLBC had set aside the money
it offered for the care of Lynn. He testified: In this situation the money
that we had offered -- based on that, we have set that aside, so that money is
being -- is accrued. When he was pressed, it became apparent that Mr. Birdi
knew little about the accounting and he said that it was done at the
headquarters level ... and so we have set aside money based on the monthly rate
that we would have offered. There was no attempt at trial to develop specific
evidence as to the amount of money set aside or what period it was intended to cover.

[66]

CLBC no doubt expected it would have to pay some monies to Ms. Skibinski
for all or some of the period from July 2007 to January 2008. Prudent
contingent bookkeeping is not proof of enrichment.

[67]

The evidence does not support the conclusion that there was an
enrichment of CLBC.

Deprivation

[68]

CLBC concedes that Ms. Skibinski provided to Lynn a service that has a
monetary value and that, assuming without conceding that CLBC was enriched, the
deprivation corresponds to the enrichment.

Juristic reason

[69]

On the third element of the cause of action, absence of juristic reason,
Iacobucci J. began his analysis in
Garland
thus:

38        In his original formulation of the test for unjust
enrichment in
Rathwell v. Rathwell
, [1978] 2 S.C.R. 436, at p. 455
(adopted in
Pettkus
,
supra
, at p. 844), Dickson J. (as he then
was) held in his minority reasons that for an action in unjust enrichment 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.

39        Later formulations of the test by this Court have
broadened the types of factors that can be considered in the context of the
juristic reason analysis. In
Peter
,
supra
, at p. 990,

McLachlin
J. held that:

It is at this stage that the court
must consider whether the enrichment and detriment, morally neutral in
themselves, are unjust.

... The test is flexible, and the factors to be considered
may vary with the situation before the court.

[70]

At para. 40, Iacobucci J. referred to p. 802 in
Peel
, where McLachlin
J., as she then was, wrote that application of the test for unjust enrichment
should not be used to create case by case palm tree justice.

[71]

In
Garland
, the discussion of juristic reason concludes as
follows:

43        It should be recalled that the test for unjust
enrichment is relatively new to Canadian jurisprudence. It requires flexibility
for courts to expand the categories of juristic reasons as circumstances
require and to deny recovery where to allow it would be inequitable. As
McLachlin J. wrote in
Peel
,
supra
, at p. 788, the Courts
approach to unjust enrichment, while informed by traditional categories of
recovery, is capable, however, of going beyond them, allowing the law to
develop in a flexible way as required to meet changing perceptions of justice.
But at the same time there must also be guidelines that offer trial judges and
others some indication of what the boundaries of the cause of action are. The
goal is to avoid guidelines that are so general and subjective that uniformity
becomes unattainable.

44        The parties and commentators have pointed out that
there is no specific authority that settles this question. But recalling that
this is an equitable remedy that will necessarily involve discretion and
questions of fairness, I believe that some redefinition and reformulation is
required. Consequently, in my view, the proper approach to the juristic reason
analysis is in two parts. First, the plaintiff must show that no juristic reason
from an established category exists to deny recovery. By closing the list of
categories that the plaintiff must canvass in order to show an absence of
juristic reason, [Professor] Smiths objection to the Canadian formulation of
the test that it required proof of a negative is answered. The established
categories that can constitute juristic reasons include a contract (
Pettkus
,
supra
), a disposition of law (
Pettkus
,
supra
), a donative
intent (
Peter
,
supra
), and other valid common law, equitable or statutory
obligations (
Peter
,
supra
). If there is no juristic reason from
an established category, then the plaintiff has made out a
prima facie
case
under the juristic reason component of the analysis.

45        The
prima facie
case is rebuttable, however,
where the defendant can show that there is another reason to deny recovery. As
a result, there is a
de facto
burden of proof placed on the defendant to
show the reason why the enrichment should be retained. This stage of the
analysis thus provides for a category of residual defence in which courts can
look to all of the circumstances of the transaction in order to determine
whether there is another reason to deny recovery.

46        As part of the defendants attempt to rebut, courts
should have regard to two factors: the reasonable expectations of the parties,
and public policy considerations. It may be that when these factors are
considered, the court will find that a new category of juristic reason is
established. In other cases, a consideration of these factors will suggest that
there was a juristic reason in the particular circumstances of a case which
does not give rise to a new category of juristic reason that should be applied
in other factual circumstances. In a third group of cases, a consideration of
these factors will yield a determination that there was no juristic reason for
the enrichment. In the latter cases, recovery should be allowed. The point here
is that this area is an evolving one and that further cases will add additional
refinements and developments.

47        In my view, this
approach to the juristic reason analysis is consistent with the general
approach to unjust enrichment endorsed by McLachlin J. in
Peel
,
supra
,
where she stated that courts must effect a balance between the traditional
category approach according to which a claim for restitution will succeed
only if it falls within an established head of recovery, and the modern
principled approach according to which relief is determined with reference to
broad principles. It is also, as discussed by Professor Smith,
supra
,
generally consistent with the approach to unjust enrichment found in the civil
law of Quebec (see, for example, arts. 1493 and 1494 of the
Civil Code of
Quebec
, S.Q. 1991, c. 64).

[72]

In his summary of conclusions, set out above, the trial judge, at items
3 and 5, concluded that [t]here was a reasonable expectation [Ms. Skibinski]
would receive something for her services despite the absence of agreement and
that ... analysis based on the reasonable expectations of the parties does not
provide a juristic reason to deny recovery. In item 3, he added: Donative (or
gratuitous) intent cannot be inferred.

[73]

With respect, the evidence is very clear that Ms. Skibinski could not
expect payment if she continued to provide the services to Lynn and that CLBC
did not expect that it would have to pay Ms. Skibinski. CLBC took steps to make
these matters understood. The wording of Mr. Birdis letter of 15 January 2008
is explicit and unambiguous.

[74]

At para. 196 of his reasons, the trial judge stated that he could not
see how anyone in CLBCs position could have inferred a donative intent by the
plaintiff. At para. 199, he stated that the case narrows to whether [CLBC]
could infer a donative intent. The trial judge did not err in finding that
CLBC could not infer a donative intent. In my opinion, however, the comment
about donative intent does not complete the analysis. In order to defeat a
claim for unjust enrichment on the basis of the absence of legitimate
expectation of compensation, there is no requirement in the cases for the
defendant to reasonably perceive an intention on the part of the plaintiff to
make a gift.

[75]

The extensive analysis by the trial judge which underlay his conclusions
in items 3 and 5 fails to adequately take into account many facts that are
critical to the application, in this case, of the juristic reason element of the
law of unjust enrichment. The reasoning substantially disregards the
termination of contract negotiations and the clear and unequivocal position taken
by CLBC in the letter of 15 January 2008. There is no mention by the trial
judge of Ms. Chalmerss understanding that another caregiver would have to be
found if Ms. Skibinski was unable or unwilling to provide care to Lynn. Nor is
there any mention of the significant fact that CLBC had no control over Lynns
estate or her person. It had no power to intervene or to reverse decisions made
by her committee concerning Lynns ongoing care. All these matters must have
been within Ms. Skibinskis knowledge.

[76]

CLBC says that it did not request the ongoing service provided by Ms.
Skibinski and did not acquiesce in the provision of that service. Nor could Ms.
Skibinski have any legitimate expectation of payment from CLBC. These facts
constitute a juristic reason for dismissing the claim for unjust enrichment and
for denying the remedy of restitution.

[77]

I agree with this argument. As I have said, the trial judge, in reaching
the opposite conclusion, failed to properly take into account critical aspects
of the evidence.

[78]

I begin with a general opinion. The courts did not develop the law of
unjust enrichment to create a remedy for a participant in failed contract
negotiations when that participant is free to walk away from the subject matter
of the intended contract without suffering a loss or detriment, and chooses not
to walk away.

[79]

Without qualification, this describes the present case. We have been
made aware of no authority in which the doctrine of unjust enrichment has been
applied in the manner the trial judge applied it here. I expect this is because,
in circumstances like those of the present case, it is clear that the court
cannot apply the principle without simply creating a contract for the parties
where the parties have failed. This the court must not do. Freedom of contract
is a fundamental tenet of the common law. It has not been replaced by the law
of unjust enrichment. As stated by McLachlin J. in
Peel
at p. 786, it must
be recognized in the law of unjust enrichment that the right to choose can only
be impinged by legitimate expectations. In the present case, there could have
been no such legitimate expectations.

[80]

It seems that the essence of Ms. Skibinskis position during contract
negotiations was that CLBC was obliged to contract with her (and with no other
person) for the care of Lynn, either on Ms. Skibinskis terms or on terms to be
fixed by the court. Such a position was and is legally unsound. This is because
when Ms. Skibinski took Lynn back into her home on 27 December 2007 she was
about to reject CLBCs offer and not negotiate further, in the knowledge that
CLBC had another caregiver available. Such a position is unsound also because
the legal relationship between the parties terminated when Ms. Skibinski
received CLBCs letter dated 15 January 2008. Presumed entitlement thereafter,
even if well-intentioned, cannot constitute a foundation for a finding of
unjust enrichment.

[81]

There was nothing to prevent CLBC from entirely severing its legal
relationship with Ms. Skibinski so as to disentitle her from any claim in law against
CLBC for ongoing services in connection with Lynns care. The letter of 15
January 2008, read in light of the contract negotiations prior to that date,
clearly severed the legal relationship between the parties. It cannot be said that
Ms. Skibinski had any basis for continuing to provide the care in the
expectation, based in fact or in law, that CLBC would be liable to compensate
her.

[82]

After she received Mr. Birdis letter of 15 January 2008, Ms. Skibinski had
three options: (1) to accept CLBCs contract terms (assuming CLBC could be
persuaded to renew its last offer); (2) to look only to Lynn and her committee
for payment; or (3) to refuse to provide the care and require the committee to make
arrangements, through CLBC or otherwise, for placement of Lynn with another
caregiver.

[83]

As I have said, what Ms. Skibinski could not do was continue to provide
care to Lynn in the expectation that CLBC would pay her for her services
without a contract. The evidence simply does not support a conclusion that such
an expectation was reasonable. On the contrary, the only reasonable expectation,
in the circumstances, was that CLBC would not in fact pay and would not in law
be required to pay. Ms. Skibinski maintained an intransigent position that was
contrary to her best interests.

[84]

Ms. Skibinski made a unilateral decision to continue to provide care to
Lynn. She did not have to take her from the hospital in Abbotsford to her home
on 27 December 2007. She chose to do so in the face of a stalemate in the
contract negotiations. The next day she rejected CLBCs contract offer. She
made no counter-offer. She knew that she and CLBC were far apart as to
remuneration and other significant contractual terms.

[85]

The juristic reason for denying recovery is that the parties severed
their legal relationship; there was no acquiescence by CLBC to Ms. Skibinskis
providing ongoing care to Lynn on its account, and there was no basis on which
Ms. Skibinski could have expected payment from CLBC for the ongoing care. I see
the above as an established category of juristic reason, the absence of which
Ms. Skibinski failed to prove. If this is not properly seen as an established
category, I see it as a compelling legal reason to deny recovery.

[86]

I would vary the order under appeal by setting aside the award of compensation
from the date on which the letter of 15 January 2008 took effect.

Officiousness

[87]

The trial judge discussed at some length whether Ms. Skibinski acted in
an officious manner so as to create a juristic reason for denying recovery. He
determined that she did not so act. As I have observed, he found her conduct on
11 July 2007 was a necessitous intervention and he remarked at para. 207 that a
plaintiff cannot be seen to have been a necessitous intervener if she acted in
an officious manner.

[88]

I find it unnecessary to comment on this issue. It appears the judge
related his findings to the events of July 2007 and not to the legal positions
of the parties in December and January. It is not necessary to find that Ms.
Skibinski acted officiously in order to identify a juristic reason for denying
recovery.

Final ground of appeal

[89]

As a separate ground of appeal, CLBC raised issues concerning the amount
of compensation ordered. It says that the trial judge erred in awarding
compensation in an amount higher than it was willing to pay. Although I
consider there to be merit in this argument, I find it unnecessary to address
it. Nor is there any need to address an ancillary argument that the amount of
compensation should have been discounted to take into account the absence of
the non-monetary contractual terms to which CLBC would have been entitled.

Compensation

[90]

As I have said, CLBC does not dispute that Ms. Skibinski is entitled to
compensation for the period from late October 2007 to mid-January 2008. It says
that she is not entitled to compensation for the period from 11 July to late
October 2007 because she was not then licensed to provide full-time care for
more than two persons.

[91]

I accept the position of Ms. Skibinski that the letter of 15 January
could have had no effect until she received it on 24 January. Compensation
should be calculated on this basis of the later date.

[92]

Ms. Skibinski testified that Mr. Morgan expressly agreed to Lynn going
to the Skibinski home in July 2007. Mr. Morgan denied this. At para. 211 of his
reasons, the trial judge found that Mr. Morgan did not expressly agree but
neither did he object. The judge found that Mr. Morgans position was that CLBC
could not negotiate a contract with Ms. Skibinski while she had more than two
residents receiving care in her home. Mrs. Skibinskis position in response was
that, if necessary, one of the other two residents could be moved.

[93]

I consider the objection of CLBC to Lynns going into Ms. Skibinskis
full-time care without regularization of Ms. Skibinskis license status to be less
than substantive. CLBC recognized that the placement was optimal at least for
the short term and that strict compliance with the licensing requirement could
be addressed in due course. In these circumstances it must be determined that
CLBC acquiesced in the placement and that both parties expected that
compensation would be determined by a contract to be negotiated and entered
into.

[94]

I conclude therefore that the compensation period should commence on 11
July 2007 and end on 24 January 2008.

[95]

For the purpose of this appeal, the parties are agreed that the
appropriate amount of compensation for this period of care is $55,800.36.

[96]

Most of Mr. Birdis evidence-in-chief was in the form of an affidavit. He
swore that on 19 September 2008, CLBC made a voluntary payment to Ms. Skibinski
of $19,498.73 for Lynns care prior to 15 January 2008. He swore that she also
received payments under the day-care contract that expired on 31 December 2007,
the total of the two amounts being $29,797.03. These matters seem to have been
taken into account by counsel in determining the final amount expressed in the
formal order. I presume they are to be deducted from the compensation amount of
$55,800.36. If there is not agreement on this point, counsel should be at
liberty to make further written submissions.

[97]

Counsel advised us that there are also some medical costs that must be
added to the award of compensation, in an amount not yet determined.

Conclusion

[98]

I would allow the appeal and reduce the amount of the judgment to
$55,800.36 less proper deductions to be agreed upon or to be subject to further
submissions. I would add proper medical costs in an amount to be agreed upon or
to be determined on a reference to the Registrar of this court. Pre-judgment
interest at the Registrars rates should be added.

The Honourable Mr. Justice Low

I agree:

The Honourable Mr. Justice
Frankel

I agree:

The Honourable Mr. Justice
Hinkson