Bollivar v. Hirtle Estate, (1990) 97 N.S.R.(2d) 247 (CA)

• Judge: Jones, Macdonald and Hallett, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 20, 1990
• Jurisdiction: Nova Scotia
• Citations: (1990), 97 N.S.R.(2d) 247 (CA)

Bollivar v. Hirtle Estate (1990), 97 N.S.R.(2d) 247 (CA);

    258 A.P.R. 247

MLB headnote and full text

The Estate of Max William Hirtle (appellant) v. Olive Victoria Bollivar (respondent)

(S.C.A. No. 02219)

Indexed As: Bollivar v. Hirtle Estate

Nova Scotia Supreme Court

Appeal Division

Jones, Macdonald and Hallett, JJ.A.

June 20, 1990.

Summary:

A former housekeeper who worked without compensation for six years for Hirtle in anticipation of receiving his estate brought an action for compensation when excluded from his will.

The Nova Scotia Probate Court, in a judgment reported 93 N.S.R.(2d) 279; 242 A.P.R. 279, awarded compensation on the basis of unjust enrichment. The court exercised its discretion under s. 2A of the Statute of Limitations to disallow the estate's defence based on the expiration of the limitation period. Hirtle's estate appealed.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeal. The court held that the housekeeper was not entitled to compensation on the basis of quantum meruit or unjust enrichment. The court also stated that the trial judge should not have disallowed the limitation period defence under s. 2A.

Limitation of Actions - Topic 9401

Bars - Disallowance of defence - In 1973 Bollivar contracted to care for Hirtle for the rest of his life in exchange for receiving his estate upon his death - Bollivar repudiated the contract in 1979 - Hirtle revoked his will - Hirtle died in 1988 - Bollivar commenced an action in 1988 for compensation for her six years of service - The limitation period expired in 1986 - The Nova Scotia Probate Court exercised its discretion under s. 2A of the Statute of Limitations to disallow a defence based on the limitation period and allowed the action to proceed - The Nova Scotia Court of Appeal held that the trial judge erred, where Bollivar did not plead s. 2A and where the estate would be extremely prejudiced.

Restitution - Topic 62

Unjust enrichment - What constitutes - Bollivar contracted to care for Hirtle for the rest of his life in exchange for receiving his estate upon his death - Bollivar repudiated the contract in 1979, after performing services for six years without compensation - The repudiated contract did not provide for an early termination of services - The Nova Scotia Court of Appeal held that Bollivar had no claim for compensation in contract, on a quantum meruit basis or on the basis of unjust enrichment - The court stated that there was a juristic reason for the enrichment (i.e., the contract) and a repudiated contract would not ground a quantum meruit claim.

Restitution - Topic 2505

Benefit acquired at defendant's request - Recovery based on quantum meruit - Work or services performed - [See Restitution - Topic 62 ].

Cases Noticed:

Pimlott et al. v. Marbridge Investments Ltd. (1967), 61 D.L.R.(2d) 309, refd to. [para. 5].

Sorochan v. Sorochan (1986), 69 N.R. 81; 74 A.R. 67; 29 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 6].

McIlreith et al. v. Payzant et al. (1893), 25 N.S.R. 377 (C.A.), refd to. [para. 12].

Statutes Noticed:

Limitation of Actions Act, R.S.N.S. 1967, c. 168, sect. 2(1)(e), sect. 2A.

Authors and Works Noticed:

Klippert, Unjust Enrichment (1983), p. 242 [para. 12].

Counsel:

C. Richard Coughlan, for the appellant;

Edmund R. Saunders, for the respondent.

This appeal was heard on May 15, 1990, before Jones, Macdonald and Hallett, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On June 20, 1990, Hallett, J.A., delivered the following judgment for the Court of Appeal.