Unjust Enrichment Claims Against an Estate in Ontario

Many people look after a parent, relative or friend for years without pay, or work in a family business or on a property and are never compensated. When that person dies, the will may leave you nothing. You may wonder whether you can still claim from the estate.

Ontario law has a claim called unjust enrichment that can sometimes apply. This article explains what you have to prove, what remedies are usual and what to watch for. It is general information, not advice on your situation.

What unjust enrichment means

A claimant must prove an enrichment, a corresponding deprivation, and the absence of any juristic reason for the enrichment. In plain words, the deceased received a benefit, you lost something by providing it, and there was no legal reason such as a contract or a gift that explains why the deceased should keep it for free.

Whether care, labour or money you provided meets that test depends on the facts, including what was understood between you and the deceased. Because the claim turns on facts, the records and evidence you can gather often matter a great deal.

The usual remedy: payment for the value of the services

For unjust enrichment based on services, a monetary award calculated on a quantum meruit (fee-for-service) basis is the default remedy and should usually be enough. That means the court asks what your services were worth.

A proprietary remedy such as a constructive trust, which would give you an interest in a specific asset such as a house, is exceptional. If you hope for a share of property rather than a payment, expect to need strong reasons.

Protecting a claim to land

If you claim an interest in real estate, you may want to register a certificate of pending litigation. Starting a proceeding about an interest in land is not notice to non-parties until the court issues a certificate and it is registered, and it can be registered under either the Land Titles Act or the Registry Act.

The court may discharge a certificate if the claimant claims money instead of the land interest, has no reasonable claim to the land interest, or does not prosecute the proceeding with reasonable diligence. It may also discharge it if another form of security adequately protects the claimant, or on any other just ground. Since the usual remedy for services is money, this is a real risk to think through with a lawyer.

Time limits and process

Most claims must be started within two years after the day the claim was discovered. Discovery is the earlier of when the claimant actually knew, or when a reasonable person in their circumstances ought to have known. Claims by or against an estate for torts or injuries, other than libel and slander, must be started within two years of the death.

Which period applies to a caregiver or worker claim, and when it starts, varies with the claim and should be confirmed in each case. The two-year period also does not run while the claimant is incapable of starting a proceeding because of a physical, mental or psychological condition and has no litigation guardian.

Certain estate lawsuits are referred to mandatory mediation unless the court grants an exemption, and the Ontario government says the Mandatory Mediation Program operates in Toronto, Ottawa and Windsor. Mediation is mandatory in certain proceedings, including claims against an estate. Check whether this applies in your region.

Where mediation applies, the person who started the proceeding must move for directions within 30 days after the last day for submitting a Notice of Appearance (Form 75.4). The parties must choose a mediator within 30 days of the order giving directions, and each party must provide a Statement of Issues (Form 75.1C) at least seven days before mediation. The court's directions order sets the cost of mediation and how it is shared.

In the Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters. Procedures differ by region, so a lawyer can confirm how a case would proceed where yours would be heard.

What to do next

• Write down what you did, for how long and at what times
• Collect receipts, bank records, photos, calendars and messages
• List any promises the deceased made about payment or inheritance
• Note what you gave up, such as work income or housing costs
• Record the date of death and when you first realized you might have a claim
• Speak to an estate litigation lawyer soon, because deadlines can be short

A person with a financial interest in an estate can file Form 74P to ask the court to notify them when someone starts a proceeding involving the estate. Whether that helps depends on your position, so ask for advice.

Frequently asked questions