British Columbia

$4.1M lottery winner's loan to a friend upheld in groundbreaking appeal

More than a decade after winning the lottery, a B.C. woman has broken new legal ground in an appeal court decision that promises to modernize contract law.

B.C. Court of Appeal breaks new legal ground in deciding verbal extensions to loan are new contracts

Enone Rosas won $4.1 million in a 6/49 draw in 2007. Her decision to lend a friend $600,000 has led to years of legal wrangling. (Richard Plume/Canadian Press)

Enone Rosas has already won the lottery.

Now, the Vancouver woman has scored the legal equivalent: convincing three B.C. Court of Appeal justices to break new legal ground in deciding her former friend must repay a $600,000 loan Rosas made shortly after winning the 6/49 in 2007.

In a dense, 45-page decision, Chief Justice Robert Bauman found that Rosas was essentially punished for her generosity by accepting delays on repayment to the point where the statute of limitations had run out by the time she decided to sue.

"In my view, that is not the law, or at least not what the law should be for variations of existing contracts," Bauman wrote.

"It has famously been said that 'hard cases make bad law'; sometimes, however, they make new law. Or, at least, they very much encourage the court to do so lest we give credence to Mr. Bumble's lament in Oliver Twist: 'If the law supposes that ... the law is an ass.'"

A gift or a loan?

The appeal court's decision is groundbreaking, because it would make variations to an existing contract enforceable based on a promise between parties like Rosas and her former friend Hermanisabel Guarin Toca.

The two Filipina immigrants and their husbands had been friends and card-playing partners long before Rosas won $4.1 million in 2007.

The B.C. Court of Appeal has sided with a Vancouver lottery winner who claimed her former friend owed her $630,000. (Peter Scobie/CBC)

They were together when Rosas checked her ticket. And they all flew to West Edmonton Mall to celebrate.

In a spirit of generosity, Rosas also cut her friend a $630,000 cheque so that Toca and her husband could buy a house.

Toca would later claim the money was a gift, but the original B.C. Supreme Court judge agreed with Rosas that it was intended as a loan.

The problem at trial centred around the terms of the loan. Rosas claimed that Toca initially agreed to pay back the money in one year.

That set the six-year term of limitations running 12 months after the money first changed hands. And unfortunately for Rosas, she filed her lawsuit seven months too late.

Rules of consideration

On appeal, Rosas claimed Toca had requested a number of extensions to the repayment date, and on each occasion Rosas held off on collecting her money.

They argued that each of those extensions should be enforceable, which would push the statute of limitations back.

But — confusing though it might be to non-lawyers — the law doesn't work that way.

A "consideration" is usually required in exchange for the lender's forbearance.

By way of explanation, the appeal court cites an 1809 case in which two members of a sailing crew deserted and the boat's captain promised the remaining members of the crew higher wages on their return back to London.

The court in that case found the new agreement unenforceable because the crew members were already under an obligation to do their "utmost to allow the ship to reach her destination."

In the same way, the original B.C. Supreme Court decision found Toca was already under an obligation to pay back the money when she asked for more time.

The extensions didn't change the term limit on the underlying original contract.

'Not what the law should be'

The rules are intended to protect both sides in a negotiation from being abused or extorted in a situation where they are forced to make concessions to get money they are rightly owed.

But Bauman said that didn't reflect the fact that for "friends and neighbours who make significant loans and agreements … circumstances change and contractual modifications may be desirable and beneficial to both parties."

"When parties to a contract agree to vary its terms, the variation should be enforceable without fresh consideration, absent duress, unconscionability, or other public policy concerns which would render an otherwise valid term unenforceable," Bauman wrote.

"In this way, the legitimate expectations of the parties can be protected. To do otherwise would be to let the doctrine of consideration work an injustice.

The appeal court said Rosas claimed Toca asked her for a last extension in January 2013, which meant that the claim would be well within the six-year limit.

About the Author

Jason Proctor


Jason Proctor is a reporter in British Columbia for CBC News and has covered the B.C. courts and mental health issues in the justice system extensively.


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