How has quantum meruit or value survived been used to determine the value of a constructive trust?

Manitoba, Canada


The following excerpt is from McDougall v. Gesell Estate, 1999 CanLII 14218 (MB QB):

Both McLachlin J. and Cory J. considered the use of these two methods of valuing the contributions of each party. McLachlin J., for the majority, stated as follows at pp. 343-344: . . . . The debate centres on whether it is sufficient to look at the value of the services which the claimant has rendered (the “value received” approach), or whether regard should be had to the amount by which the property has been improved (the “value survived” approach). Cory J. expresses a preference for a “value survived” approach. However, he also suggests, at p. 31 [unreported, p. 363, post], that “there is no reason why quantum meruit or the value received approach could not be utilized to quantify the value of the constructive trust.” I cannot agree. It seems to me that there are very good reasons, both doctrinal and practical, for referring to the “value survived” when assessing the value of a constructive trust. From the point of view of doctrine, “[t]he extent of the interest must be proportionate to the contribution” to the property: Becker v. Pettkus, supra, at p. 852. How is the contribution to the property to be determined? One starts, of necessity, by defining the property. One goes on to determine what portion of that property is attributable to the claimant’s efforts. This is the “value survived” approach. For a monetary award, the “value received” approach is appropriate; the value conferred on the property is irrelevant. But where the claim is for an interest in the property one must of necessity, it seems to me, determine what portion of the value of the property claimed is attributable to the claimant’s services. I note, as does my colleague, that there may also be practical reasons for favouring a “value survived” approach. Cory J. alludes to the practical problems with balancing benefits and detriments as required by the “value received” approach, leading some to question whether it is the least attractive approach in most family property cases (authorities omitted). Moreover, a “value survived” approach arguably accords best with the expectations of most parties; it is more likely that a couple expects to share in the wealth generated from their partnership, rather than to receive compensation for the services performed during the relationship. (ii) calculation using the value survived approach

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