D.C.B. v. Zellers Inc., (1996) 111 Man.R.(2d) 198 (QB)

• Judge: Jewers, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 15, 1996
• Jurisdiction: Manitoba
• Citations: (1996), 111 Man.R.(2d) 198 (QB)

D.C.B. v. Zellers Inc. (1996), 111 Man.R.(2d) 198 (QB)

MLB headnote and full text

D.C.B. (plaintiff) v. Harold J. Arkin and Zellers Inc. (defendants)

(Suit No. CI 96-06-00055)

Indexed As: D.C.B. v. Zellers Inc.

Manitoba Court of Queen's Bench

St. Boniface Centre

Jewers, J.

July 15, 1996.

Summary:

D.C.B. paid Zellers $225 as compensation for damages Zellers sustained resulting from thefts committed by D.C.B.'s young son. The goods stolen were returned to Zellers. D.C.B. sued Zellers in small claims court for recov­ery of the money.

A hearing officer dismissed the claim. D.C.B. appealed.

The Manitoba Court of Queen's Bench allowed the appeal.

Contracts - Topic 2876

Consideration - What constitutes con­sideration - Forbearance to sue - D.C.B.'s young son shoplifted goods from Zellers - Zellers' lawyer sent D.C.B. a letter claim­ing from her $225 in compensation and threat­ening her with an action unless she paid - D.C.B. paid voluntarily - There was no suggestion that D.C.B. was negli­gent or had committed any tort in her personal capac­ity - D.C.B. sued to recover the $225 - Zellers argued that there was an en­force­able contract with two-way consider­ation: forbearance to sue from Zellers, voluntary payment by D.C.B. - D.C.B. replied that Zellers' claim for com­pensation was invalid hence no basis for such con­tract - The Manitoba Court of Queen's Bench agreed with D.C.B. but stated that she had to allege other grounds to recover her money since her voluntary payment con­stituted an "executed gift" - See para­graphs 8 to 13.

Mistake - Topic 1660

Recovery of money paid under mistake - Mistake of fact - General principles - [See Mistake - Topic 1701 ].

Mistake - Topic 1701

Recovery of money paid under mistake - Mistake of law - General - The Manitoba Court of Queen's Bench held: "The old rule that monies paid under a mistake of fact could be recovered and monies paid under a mistake of law could not, has now been abandoned in this country. Proof of a mistake of fact or law is enough." - See paragraph 20.

Restitution - Topic 70

Unjust enrichment - General - Where money paid under mistake of law - D.C.B.'s young son shoplifted goods from Zellers - Zellers' lawyer sent D.C.B. a letter claiming from her $225 in compen­sation and threat­ening her with an action unless she paid - D.C.B. paid voluntarily - There was no suggestion that D.C.B. was negligent or had committed any tort in her personal capac­ity - D.C.B. sued to recover the $225 - She alleged that Zel­lers' claim for com­pensa­tion was invalid and that she paid the money by reason of a mistake in fact or law or both - The Manitoba Court of Queen's Bench allowed the action - The court could not believe that Zellers seri­ously thought that its claim would succeed or that it seriously intended to sue D.C.B. if she did not pay - See paragraphs 14 to 22.

Restitution - Topic 70

Unjust enrichment - General - Where money paid under mistake of law - [See Mistake - Topic 1701 ].

Restitution - Topic 72

Unjust enrichment - General - Where money paid under mistake of fact - [See first Restitution - Topic 70 ].

Restitution - Topic 72

Unjust enrichment - General - Where money paid under mistake of fact - [See Mistake - Topic 1701 ].

Cases Noticed:

Taylor et al. v. King et al., [1993] 8 W.W.R. 92; 32 B.C.A.C. 56; 53 W.A.C. 56 (C.A.), refd to. [para. 8].

Air Canada and Pacific Western Airlines Ltd. v. British Columbia, [1989] 1 S.C.R. 1161; 95 N.R. 1; 59 D.L.R.(4th) 161, refd to. [para. 20].

McShane v. Manitoba (1993), 86 Man.R.(2d) 212 (Q.B.), refd to. [para. 20].

Authors and Works Noticed:

Chitty on Contracts (27th Ed.), vol. 1, arts. 3-041 to 3-045 [para. 11].

Counsel:

P. Walsh, Q.C., for the plaintiff;

T.W. Hewett, for the defendants.

This appeal was heard by Jewers, J., of the Manitoba Court of Queen's Bench, St. Boni­face Centre, who delivered the following decision on July 15, 1996.