ONE STEP FORWARD, TWO STEPS BACK: UNJUST ENRICHMENT IN THE SUPREME COURT OF CANADA

摘要

Writing in 2000, Lionel Smith noted that the Canadian law of unjust enrichment—which requires an enrichment, a corresponding deprivation, and an absence of juristic reason for the enrichment—was in a state of confusion over the definition of "absence of juristic reason". Was the concept to be taken literally, requiring plaintiffs to prove a negative? Or was the concept just an awkward formulation of the traditional English model, which requires plaintiffs to show a positive reason, such as mistake or duress, in order to reverse the transfer of wealth? As Smith and others had argued, the Canadian law was of two minds on the subject. With its decision in Garland v. Consumers Gas Ltd, the Supreme Court of Canada has ended the controversy by favouring the literal interpretation of the concept. In so doing, the court has joined the growing consensus positing "absence of legal ground" as the simplest and most coherent understanding of the unjust enrichment phenomenon. However, in what is becoming a typical style, the Supreme Court has largely eviscerated the integrity of this model of unjust enrichment through the addition of ad hoc policy and fairness concerns.