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On sentence appeal, the Court of Appeal reduced Deborah Oguntoyinbo’s global sentence, vacated the sentence on a withdrawn count, and adjusted restitution orders.
The restitution order was set aside because the sentencing judge erred in principle by imposing a substantial s.738 restitution order without inviting submissions or applying the requisite legal framework (including consideration of restraint, fit and the offender's ability to pay); appellate reconsideration required setting the order aside.
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The Court of Appeal dismissed a law firm’s claim to a contingency fee from damages recovered on appeal, holding the retainer did not cover appellate recoveries and quantum meruit was unavailable.
The Court of Appeal (majority) held the trial judge correctly applied the three-step unjust enrichment test and the two-stage juristic reason analysis, concluding the respondents did not provide services with donative intent because the services were extensive, went beyond ordinary familial assistance, and there was no juristic reason to permit the Estate to retain the benefit; the appeal was dismissed and the trial judgment awarding restitution and costs was upheld.
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Defendant breached express trust obligations by failing to account for mortgage proceeds and commingling funds; plaintiffs entitled to adjusted division of sale proceeds and restitution; defendant failed to prove entitlement to claimed interest and settlement offsets; counterclaims dismissed and distribution of funds ordered as set out by the court.
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The Court of Appeal allowed an appeal where restitution for unjust enrichment was granted despite not being pleaded, with an insufficient record and procedural unfairness.
The Court of Appeal set aside a $12 million contract award, found no certainty on the fee term, and substituted a $2.7 million quantum meruit award.
The Supreme Court of British Columbia set aside a Provincial Court decision for procedural unfairness and misapplication of unjust enrichment law, and remitted the claims for trial.
The appeals were allowed in part: restitution conditions in both appellants' probation orders were quashed because the sentencing judge exceeded an acceded joint submission by adding restitution in Jacob's case and failed to inquire into Jordan's ability to pay before imposing restitution; Jordan's custodial sentence and denial of a conditional discharge were not disturbed.
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The appeal is allowed because the adjudicator erred in law by failing to apply the second stage of the juristic reason analysis; given the appellant did not authorize, consent to, or acquiesce in the remediation and the respondent acted without authority, the reasonable expectations and public policy provide a juristic reason permitting the appellant to retain the benefit and denying restitution.
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