© 1998  Karen Selick
A Textbook Example of Deep Pocket Justice
An edited version of this article first appeared in the May, 1998 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


A Textbook Example of Deep Pocket Justice

Is it my imagination, or are Canadian courts becoming more and more arbitrary in their decisions lately?  Consider the recent Ontario Court of Appeal decision in Nowell v. Town Estate

Harold Town was a Canadian painter who had something that few in his vocation ever achieve: success, fame and money—at least several million dollars in assets.  He had a few other unusual things, too: a wife of more than 30 years who "knew there were other women in her husband’s life but…accepted that behaviour," and a girlfriend, Iris Nowell, who carried on an affair with him for 24 years. 

Mr. Town and Ms. Nowell never lived together.  They kept separate residences in Toronto.  He made it clear he would not divorce his wife.  Eventually, he bought a farm in Peterborough, where he and Ms. Nowell spent their weekends. 

Ms. Nowell had her own career as an author and copywriter.  Occasionally, she obtained work on projects which Mr. Town was also involved with, and she got paid for her work by third parties.   Her degree of success, however, was more typical of people in the arts than Mr. Town’s was.  She got by, but she never got rich. 

Over the years, Mr. Town made gifts to Ms. Nowell of many of his own paintings.   She eventually sold some of them for just over $120,000. 

He told her she would be taken care of financially.   Once, he said that she would "always have the farm."  Eventually, though, she came to believe that these were empty promises. 

In January, 1988, she terminated the relationship.  She wrote to Mr. Town demanding a "settlement" of $100,000.  He complied, albeit reluctantly, giving her additional art works which she ultimately sold for another $127,000. 

Mr. Town died in December, 1990, leaving nothing in his will to Ms. Nowell.  She sued his estate, alleging "unjust enrichment".  She claimed she had performed unpaid services for him over the years.  Among other things, she had typed and edited some of his writings.  She had assisted him in making lithographs at a friend’s country home, where the couple had "spent weekends sailing, socializing and making prints."   She had helped him search for the Peterborough farm, and on weekends there she cooked, cleaned, gardened, decorated and organized social events. 

The trial judge dismissed her claim in 1994.  He found that while she had indeed enriched Mr. Town’s life, she had not met the second branch of the undue enrichment test.  She had not suffered a corresponding deprivation.  Instead, she too had been enriched—and not just by $247,000 worth of art.  Said Jarvis J.:

 "…Mr. Town was a source of great excitement and glamour for all those about him.  His circle of friends included the socially and artistically prominent people of the day.  Ms. Nowell participated in Mr. Town’s social and artistic life and clearly relished and benefited from that opportunity personally and professionally." 

Indeed, Ms. Nowell eventually published a book about her life with Mr. Town, and described their relationship to a reporter as "an extraordinarily dazzling life together, a fantastic and hilarious sex life".

In a brief endorsement regrettably short on explanations, a 3-member panel of the Court of Appeal decided that $247,000 in art work, plus professional opportunities and an extraordinarily dazzling life were not enough to compensate Ms. Nowell for her time and effort.  Although virtually no evidence had been led to quantify the sacrifices she claimed to have made in terms of time or dollars, the court plucked the figure of $300,000 out of the air and awarded it to Ms. Nowell. 

Somehow, I doubt that if Ms. Nowell had hired out her services as a part-time editor, print-maker, cook, gardener, decorator and hostess at market rates to employers other than Mr. Town, she would ever have accumulated  $547,000 from her efforts.  She apparently didn’t do anywhere near as well from her day job.  The  judgment clearly has nothing to do with a genuine evaluation of her services, despite its pretensions to the contrary. 

Instead, the Court of Appeal focuses on the nature of the couple’s relationship, finding that it "resembled a quasi-spousal relationship."   The relevance of this pronouncement escapes me, but if accurate, it leads inexorably to another conclusion: the relationship was a quasi-bigamous one.  Personally, I’m not opposed to bigamy so long as everyone involved consents.  However, considering that it is still a crime and therefore contrary to public policy, both for the twice-married party and for the extra spouse, it seems a tad inconsistent that our superior courts should be handing out financial rewards for this quasi-criminal behaviour.

No, this decision is simply a textbook example of deep-pocket justice.   Our courts increasingly demonstrate a predilection for redistributing large pools of wealth just because they’re there.  Take one plaintiff claiming to be destitute, add one big pot of money, season with one dead guy who can’t tell his side of the story, and voila—the perfect recipe for a large award.

One can only hope that the Supreme Court of Canada overturns this decision, and that if Madame Justice Rosalie Abella’s name comes up again as a candidate for that court, her participation in this judgment will be remembered. 

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June 20, 2000