In Tarantino v Galvano 2017 ONSC 3535 (CanLII), Justice Kristjanson of the Ontario Superior Court of Justice was faced with the difficult task of determining the validity and monetary value of a quantum meruit claim for personal care services rendered by the Defendant/Respondent, Nellie Galvano (“Nellie”) to her deceased mother, Rosa Golvano (“Rosa”). At the age of 12, Nellie immigrated to Canada from Italy with her parents. Like many first generation Canadians, Nellie and her sister, Guiseppina, helped their parents navigate Canadian Life.
Nellie lived with her parents her whole life other than a brief period during her marriage. She also raised her two sons while living with her parents. After her father died in 1986, Nellie lived with and looked after her mother for the next 26 years, until Rosa’s death on February 20, 2012.
Rosa and Nellie co-owned the home in which they resided together. Rosa had an 80.38% interest, while Nellie had a 19.62% interest. In her 2005 Will, Rosa named Nellie as co-executor of her estate along with Giseppina’s two daughters, Rosa Pignatelli and Tecla Tarantino (together, the “Grandchildren”). Rosa also provided that her interest in the home would be sold and that the proceeds would be brought into the Estate. Nellie had a right of first refusal to purchase the home. Additionally, Nellie was also given Rosa’s power of attorney for property and power of attorney for personal care.
As Rosa’s health deteriorated due to progressive dementia, Nellie continued to provide care and companionship to Rosa. On the advice of and with the assistance of a solicitor, Nellie entered into an agreement between herself and Rosa in 2008 which transferred Rosa’s interest in the house and 75% of Rosa’s pension income to Nellie, in exchange for Nellie acting as a caregiver for Rosa for the duration of Rosa’s lifetime. The Agreement was signed by Nellie personally and in her capacity as attorney for property for Rosa.
Following Rosa’s death in 2012, Rosa’s Grandchildren commenced an application (which was later converted into an action in 2016) against Nellie. In their application, the Grandchildren sought an accounting from Nellie with respect to Rosa’s income and expenses, an order to set aside the house transfer, and to recover damages to the estate, including occupancy rent, from Nellie. In response to the application, Nellie claimed a quantum meruit defence for personal care services rendered to Rosa.
The acceptable methods of transferring property in land in the Province of Ontario are set out in the Conveyancing and Law of Property Act. Section 9 of the Conveyancing and Law of Property Act states that “a partition of land, an exchange of land, an assignment of a chattel interest in land, and a surrender in writing of land not being an interest that might by law have been created without writing, are void at law, unless made by deed.” Nellie relied on an oral agreement with Rosa, later reduced to writing, to justify her actions (i.e. Nellie’s cashing of the pension cheques, and later, the transfer of the house to Nellie’s name); however, Justice Kristjanson declared that the oral agreement was not corroborated as required under section 13 of the Evidence Act. The court ultimately found that the Agreement which transferred Rosa’s pension and interest in the house to Nellie was invalid because:
- The agreement was signed by Nellie personally and in her capacity as Rosa’s attorney for property; and
- Rosa was incapable of managing her property and so her power of attorney had come into effect at the time the Agreement was executed.
Nellie signed the 2008 agreement for herself personally and on behalf of Rosa, using the power of attorney for property. This was an implicit acknowledgment that she had a fiduciary duty at the time of signing. The Court held that an attorney for property is obligated to act only for the benefit of the grantor; as a result they must put their own interests aside. Pursuant to section 37 of the Substitute Decisions Act, Nellie could only enter into the Agreement to transfer the house and pension income if it was “reasonably necessary” to provide for Rosa’s care, which the court determined it was not. Nellie was ultimately ordered to return Rosa’s 80.38% interest in the house.
Although Nellie was subsequently found to be in breach of her duties under the Substitute Decisions Act, and the transfer of title to the house was set aside, the court determined that Nellie was entitled to a quantum meruit claim for the long term care she provided to her mother. A quantum meruit claim is “one of the established categories of unjust enrichment claims”. It is a claim that there has been unjust enrichment, and that the remedy should be a monetary remedy calculated on the basis of quantum meruit (fee-for-services) rather than a proprietary remedy (constructive trust over specific property).
In order to make a claim of unjust enrichment against another person, the claimant must show:
- The other person received a benefit;
- The claimant suffered a loss that somehow corresponded to the benefit of the other person; and
- There was no justifiable reason in law for the benefit and the loss.
In support of her quantum meruit claim based on the services she provided her mother, Nellie relied on the expert evidence of Clae Willis who was a certified life care planner, certified care manager and certified return to work coordinator. Mr. Willis essentially analyzed Rosa’s care needs, and allocated this in terms of minutes per week for various dress, grooming, hygiene, medication and bathing functions, as well as mobility assistance, extra laundering, hygiene, bowel care, maintenance of supplies and equipment, and misery care.
In Re Brown (1999) the Ontario Superior Court of Justice determined that there must be an evidentiary foundation to support a claim for compensation related to personal care services. The court also concluded that in determining the “reasonableness” of a claim for compensation related to personal care services, it would bear in mind the following:
- The need for the services;
- The nature of the services provided;
- The qualifications of the person providing the services;
- The value of such services; and
- The period over which the services were furnished.
The evidence provided by Nellie demonstrated that Rosa needed 24 hour care. Mr. Willis’ evidence supported an hourly rate of $24 per hour for the care provided by Nellie. In the Toronto region, the average wage for a general personal support worker in general attendant care was $24 an hour, an RPN was $44 per hour, and an RN $55 per hour. The evidence of market rates for general attendant care and personal support workers for 2010 onwards was also $24 per hour. However, Justice Kristjanson declared that this rate was based on fees charged by professional services in the Toronto region, and that Mr. Willis’ evidence was that the average pay for personal support workers in the relevant period was $15.40 per hour. As a result, Justice Kristjanson calculated the value of the services rendered by Nellie not at the rate of the replacement professional, but at the rate of the personal support worker of $15.40 per hour.
Justice Kristjanson accepted the estimated time for attendant care and alternate basic supervisory care, at a reduced hourly rate of $15.40 per hour, for the period January 1, 2008 through to Rosa’s death in 2012. With the downward adjustment for the hourly rate of care from $24 to $15.40 per hour, Justice Kristjanson awarded Nellie Galvano $273,039.54 on her quantum meruit claim.
Although the doctrine of quantum meruit encompasses a wide range of claims, Tarantino v Galvano demonstrates that Canadian Courts are willing to utilize this doctrine and provide a claimant with compensation for care services that they have provided to an elderly parent. Justice Kristjanson noted that Nellie provided an extraordinary level of care to her mother in accordance with what she understood to be Rosa’s wish for her personal care. With Canada’s aging population, it is likely that Canadian Courts will be increasingly tasked with quantifying care services provided for elderly parents in the future.