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Thanks Paul.
With English eyes and a vague understanding of how other common law
systems deal with these situations, one can somewhat see it might be similar to
the many farm "proprietary estoppel" (sic) cases we have here: party A agrees
to work for party B for free or reduced compensation for a long period in
expectation of receiving a substantial reward later in life.
In cases not involving contract, then the standard position would be
that if the agreed counter-performance (i.e. the expected eventual reward)
fails, then A ought to get back the market value of the work put in at that
stage. But if the parties have a contract, then the contract will be important
in deciding what the condition of the performance was, and the consequences of
it failing. As I argued in a recent English CA case, that isn't "exclusion", that
is a prior stage of the analysis of the cause of action.
I don't think the fact that the parties have a contract automatically
"excludes" a claim in restitution, any more than a contract excludes it the
standard commercial case involving a failure of counterperformance. Exclusion
of an existing right would normally have to be spelled out specifically,
whether expressly or by necessary implication.
Of course, none of the above is how the English courts actually deal
with these farm cases, and obviously English law on failure of condition is no
sensible read across to Quebec civil law!
Best,
Matthew
Matthew Hoyle
Barrister
One Essex Court
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I believe -- my grasp of French is better than my grasp of unjust
enrichment -- the theory of the case was that the lower earning spouse and the
higher earning spouse undertook a common project to support the latter's
career, the payoff for which would be a golden retirement for the former --
this never came because the relationship ended, and the lower earning spouse
sought a 50% share of the value of the common project. See par 24 of the QCCA
decision. No comment from me on how tenable this theory is -- don't shoot the
translator!
An interesting nugget is that the first-instance judge (Rigaud J)
who found in favour of the appellant was a law professor at the University of
Montreal before her appointment to the bench
Paul
Attention : courriel
externe | external email
Thanks Sam - please forgive my lack of French meaning I cannot read the
underlying judgments, but I can't tell from the SCC website summary what is the
alleged enrichment in this case and why is it said to be unjust/unjustified?
Matthew Hoyle
Barrister
One Essex Court
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have received it in error please delete it immediately and inform the sender.
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Dear
ODGers,
Today,
the Supreme Court of Canada granted leave to hear an appeal from a Québec
Court of Appeal case, Manon Tanguay v. Kathleen Zicat. The issues are:
- Whether existence of community of life agreement
between de facto spouses, regardless of its scope and content, constitutes
in se bar to action for unjust enrichment
- Whether Quebec Court of Appeal erred in laying down
principle that de facto spouses who sign community of life agreement must
explicitly include therein possibility for them to bring action for unjust
enrichment or else they are deemed to have waived this action in advance
(establishment of need for inclusion rather than exclusion of
right/action)
- Whether bringing of action for unjust enrichment can be
validly waived contractually and in advance in spousal context; if so,
guidelines pursuant to which such waiver may constitute justification for
enrichment of one spouse and/or for impoverishment of other spouse
Although
it comes from Canada's civil law jurisdiction, it will presumably be an
occasion on which the SCC will revisit Moore v Sweet and Kerr
v Baranow. One to watch.
Best,
Sam
Samuel Beswick
Associate Professor, Allard Law
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