From:                                         Stéphane Sérafin <finseraste@gmail.com>

Sent:                                           Friday 25 September 2026 04:02

To:                                               Pranay Jha

Cc:                                               Eoin O'Dell; Matthew Hoyle; Paul Daly; Samuel Beswick; Obligations

Subject:                                     Re: Unjust enrichment at the SCC (again)

 

Admittedly, I've not paid attention to this area of Quebec civil law for some time, but the approach taken at both levels of court appears to signal a move towards the more abstract, general unjust enrichment formula favoured in Canadian common law over the much more specific provisions of the CCQ. Traditionally, these kinds of claims would have been brought in Quebec under the theory of an implied partnership, yet we see here the notion of a "co-entreprise" (usually translated as "joint venture") subsumed under the unjust enrichment analysis. This is to say nothing about the distinct provisions of the CCQ that deal with undue payments and restitution upon failure of contract.

 

I might go so far as to call this a "corruption" of Quebec civil law due to common law influence, but Canadian common law has of course often been said to have developed its peculiar approach to unjust enrichment under civil law influence. So really it might be better to say that the mutual influence of both systems/traditions on each other tends to reduce rich and complex areas of doctrine to mushy shorthand. If it sounds like "unjust enrichment", we can perhaps just treat it as such, etc., etc. 

 

Best,

 

Stephane

 

On Thu, Sep 24, 2026 at 7:57 PM Pranay Jha <pjha@oeclaw.co.uk> wrote:

On point (c) in your email Eoin, if an agreement between A and B provides that A’s obligation to perform is subject to a condition X, and X does not obtain, does the agreement in Canadian law still provide a “juristic reason” for the enrichment/ performance? As a matter of principle, I would think that if an obligation to perform under an agreement is conditional, and the condition fails, the obligation in the agreement falls away, such that the agreement no longer provides a “juristic reason” for performance? 

 

Best

 

Pranay 

 

Pranay Jha

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From: Eoin O'Dell <ODELLE@tcd.ie>
Date: Thursday, 24 September 2026 at 10:15
 pm
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Paul Daly' <paul.daly@uottawa.ca>; 'Samuel Beswick' <sbeswick@sjd.law.harvard.edu>; Obligations <obligations@uwo.ca>
Subject: Re: Unjust enrichment at the SCC (again)

Dear all,

 

If a community of life agreement signed before a notary amounts to, or is functionally equivalent to, a contract, then isn't this

  1. An example of non cumul in Québecois civilian terms? So that where there is a contract, an action can only be brought on the contract and not in délit/tort or enrichissement injustifié/ enrichissement sans cause/ unjust enrichment. But the Québec Court of Appeal don't appear to mention non cumul at all, so what do I know; and/or
  1. A context where, at common law outside Canada, a contract between the parties governing the relationship in question has allocated the risks between the parties and excludes an unjust enrichment claim, in the terms laid out by Lord Goff in the Trident Beauty, the CA in Dargamo v Avonwick, and the UKSC in Barton v Morris? (So I don't think we get to the circumstances Matthew has in mind - are they Winros v Global Energy? -  but even that case to my eyes starts from the proposition that unjust enrichment cannot circumvent contractual risk allocation); and/or
  1. A case where, in Canadian common law terms, the valid contract/community of life agreement provides a juristic reason (motif juridique)/ justification for the enrichment? Rigaud J (seems to have)* held that the agreement did not provide a justification for the enrichment, in that it did not expressly contain a renunciation of a recourse to a unjust enrichment claim, but the CA (seems to have)* said that she fell into error here, which brings us back to (a) and (b).

 

Is there an obvious reason why we don't get to these points?

 

Eoin.

 

 

PS * "Seems to have", based on a quick read of the judgments with my rusty schoolboy French. I will happy cede the point if I have missed or mistranslated something.

 

 

From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Date: Thursday, 24 September 2026 at 19:10
To: 'Paul Daly' <paul.daly@uottawa.ca>; 'Samuel Beswick' <sbeswick@sjd.law.harvard.edu>; Obligations <obligations@uwo.ca>
Subject: RE: Unjust enrichment at the SCC (again)

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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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From: Paul Daly <paul.daly@uottawa.ca>
Sent: 24 September 2026 18:50
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; 'Samuel Beswick' <sbeswick@sjd.law.harvard.edu>; Obligations <obligations@uwo.ca>
Subject: Re: Unjust enrichment at the SCC (again)

 

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 

 


From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: Thursday, September 24, 2026 1:35 PM
To: 'Samuel Beswick' <sbeswick@sjd.law.harvard.edu>; Obligations <obligations@uwo.ca>
Subject: RE: Unjust enrichment at the SCC (again)

 

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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From: Samuel Beswick <sbeswick@sjd.law.harvard.edu>
Sent: 24 September 2026 18:24
To: Obligations <obligations@uwo.ca>
Subject: Unjust enrichment at the SCC (again)

 

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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