The phrase “No good deed goes unpunished” is often attributed to Clara Boothe Luce, an American Dramatist, who was the first American woman appointed to a significant ambassadorial post abroad. Today it is often used to express the idea that beneficial actions often go unappreciated or are met with hostility.  The decision of the Ontario Court of Appeal in Teixeira v. Markgraf Estate, 2017 ONCA 819 no doubt left Arlindo Teixeira (“Arlindo”) feeling as if the good deeds he had done for his neighbor Mary Markgraf (“Mary”) were unappreciated by both her family and the Court of Appeal.  While the judges reached the right decision on the law, the facts of this case serve as a reminder that good facts can make bad law.

For close to 15 years prior to Mary’s death, Arlindo helped Mary with a variety of daily tasks – things like groceries, banking, household maintenance and getting to appointments. Before her death, Mary made a Will where she left Arlindo a legacy of $100,000.  She also wrote out a cheque to Arlindo for $100,000.  Mary gave the cheque to her step-son to give to Arlindo, and directed that he take the cheque to the bank the next day.

Arlindo did attend at the bank the next day. Unfortunately the bank told Arlindo they could not cash the cheque and they returned it to him.  It turned out that Mary did not have enough funds in her account to cover the cheque.  While she had more than enough funds on deposit with the bank, she had less than $100,000 in the particular account.  The bank needed her express instructions to move funds into that account.  She died six days later and a day later the bank was notified of her death.  After that Arlindo could not cash the cheque.

The executor of Mary’s estate, her step-son, honoured the legacy in the Will but refused to honour the cheque. Arlindo claimed against Mary’s estate on a number of grounds including that Mary had made a gift to her which should be honoured by her estate.  Arlindo was unsuccessful both at trial and at the Court of Appeal.

Ultimately the facts that proved problematic for Arlindo were two-fold. First, and to put it simply, Arlindo was a good neighbor.  He performed his good deeds with no expectation of being compensated.  He did not seek some form of a contract with Mary to provide him with consideration for his good deeds.  He had not acted to his detriment in anticipation of receiving the cheque.  Second, until a cheque is cashed it is simply a promise to pay.  If before the cheque is cashed, the drawer of a cheque has a change of heart or the bank receives notice of the drawer’s death, the gift of a cheque will fail for lack of delivery[1].

The upshot for Arlindo was he should never have gotten his hopes or expectations up when Mary gave him the cheque. Once he had expectations, Arlindo needed to ensure he could enforce the cheque. He should have asked Mary execute a document confirming that the cheque was in exchange for the consideration she had received over the years for the services Arlindo had performed. At that point who knows how grateful Mary would have been for Arlindo’s good deeds.

[1]       For a gift to be valid there must be: (i) the donor’s intention to make a gift, (ii) acceptance of the gift by the donee, and (iii) actual or constructive delivery of the gift to the donee.