Unjust Enrichment: Principle or Cause of Action?

Restitution 2021, pp. 1.1.1-1.1.15 (Vancouver: Continuing Legal Education Society of British Columbia, 2021)

16 Pages Posted: 18 Oct 2021

See all articles by Lionel Smith

Lionel Smith

McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law; University of Oxford - Faculty of Law

Samuel Beswick

Peter A. Allard School of Law, University of British Columbia

Date Written: September 29, 2021

Abstract

Despite a continuing stream of case law from all levels of Canada’s judiciary, there remain fundamental questions regarding the nature of unjust enrichment in Canada and the relationship between unjust enrichment and other private law causes of action. There is a view that unjust enrichment is a general principle that is expressed in a number of distinct causes of action. And there is a competing view that unjust enrichment is an autonomous unified legal test for recovering benefits conferred on defendants that are not justified in law.

The difference is whether the standard in question is applied directly to the facts proven or admitted in order to determine whether there is liability. If the answer to that question is yes, then we are dealing with a legal test. There are countless Canadian cases that treat unjust enrichment in this way. If the standard is a general principle, perhaps like “promises seriously made are binding in law”, then it is not directly applicable to the facts. Such a principle is rather an explanation for legal tests. In the case of the principle that “promises seriously made are binding in law”, it would explain why we have the law (legal tests) governing offer and acceptance and consideration for parol contracts, and why we have different legal tests governing the formalities required for deeds, in which promises may be binding without offer, acceptance, or consideration.

Justice McLachlin (as she then was) in Peel v. Canada, [1992] 3 SCR 762 (SCC), 786, recognised “the difficult task of mediating between, if not resolving, the conflicting views of the proper scope of the doctrine of unjust enrichment”, and she proposed a way forward through compromise. Almost thirty years later, this middle path remains elusive as conflicting views over the doctrine of unjust enrichment persist in case law and legal scholarship.

Keywords: restitution, quasi-contract, juristic reason, unjust factor, money had and received, mistake of fact, compulsion, fraud, indebitatus assumpsit, Birks, McInnes, McCamus, Pettkus, Garland, Bhasin, Macferlan, Solari, BMP Global

Suggested Citation

Smith, Lionel and Beswick, Samuel, Unjust Enrichment: Principle or Cause of Action? (September 29, 2021). Restitution 2021, pp. 1.1.1-1.1.15 (Vancouver: Continuing Legal Education Society of British Columbia, 2021), Available at SSRN: https://ssrn.com/abstract=3942665

Lionel Smith

McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law ( email )

3690 Peel Street
Montreal, Quebec H3A 1W9
Canada
514-398-4670 (Phone)
514-398-4659 (Fax)

HOME PAGE: http://www.mcgill.ca/law/about/profs/smith-lionel

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Rd
Oxford, OX1 3UL
United Kingdom

Samuel Beswick (Contact Author)

Peter A. Allard School of Law, University of British Columbia ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

HOME PAGE: http://allard.ubc.ca/about-us/our-people/samuel-beswick

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
165
Abstract Views
486
rank
247,502
PlumX Metrics