Good grief ! are we still taking about Letang v Cooper ? This was all our profs rambled on about back when I was in law school in 1966 and it had just come out ! If a non-academic/practitioner can add to this interchange, having sued for unjust enrichment in a number of files over the   ( many) years since then, and briefed and had students brief the law n times, it seems obvious to me that this is an evolving Canadian concept and what a judge or court said some years ago is by now out of date. Its not a concept but a process and it means exactly what the last court said it did, as of then, and may be different tomorrow, so its futile to ask what the law or the principal IS. We can only see thru a glass darkly what it is becoming, and that may depend simply on what the facts of the next case are and who the  Supreme Court judges are then . We are watching evolution in action, but not genetic or biological, just conceptual – but the same process.,,,,c.f. the chancellor’s foot analogy of previous centuries. Phil Lister QC of Edmonton, Alberta, Canada......please correct me if anyone thinks this analysis is too superficial.

 

 

In the advisory group on the Restatement of the English Law of Unjust Enrichment we had considerable early discussion on the question of whether one should describe unjust enrichment as a cause of action. That is reflected in what is written at p 26 of the Restatement (OUP, 2012). I am not aware of a theoretical account of this but certainly some of the practitioners and judges on the advisory group were concerned about calling unjust enrichment a cause of action because they had a conception of a cause of action as being narrow and specific. There are cases on limitation of actions, esp on s 35 of the Limitation Act 1980, that involve discussion of what constitutes a cause of action.

Andrew Burrows

 

Professor of the Law of England,

All Souls College,

Oxford,

OX1 4AL

 

 

A question:

 

Does anybody know of anything written on what counts as a cause of action in terms of a theoretical account of what one is and how they work? I’m struggling with the question of whether Canadian unjust enrichment law has one cause of action or several: Garland v Consumer Gas (and others) talk of the cause of action in unjust enrichment, which given what it says the prerequisites are seems reasonable. Whatever you might think of what the SCC says, it does appear to be a single cause of action, but there are others (Bell Mobility v Anderson) that talk of several causes of action.

 

One point of attack seems to me to ask “what counts as a single cause of action?” but I’m struggling to find anything.

 

Duncan

 

Ps apologies if you get this twice

 

Professor Duncan Sheehan

Deputy Head of School

UEA Law

University of East Anglia

Norwich Research Park

Norwich

NR4 7TJ

 

Phone: +44(1603)593255

 

Papers at http://ssrn.com/author=648495

See my BePress site at http://works.bepress.com/duncan_sheehan