Dear all,

I think so too – indeed it occurred to me, although I may be stretching things way, way too far here, that the joint family venture thing bore some resemblance to a joint patrimony in Civilian systems and on the break-up of the family venture, we argue as a matter of property law who gets what.

Whether that idle thought has any basis in anything, I suspect you could (to save the SCC’s blushes) analyse it something like this. Retaining a disproportionate amount of the assets accumulated during the relationship means that you are enriched. Granted that does not mean you are unjustly enriched because there is a juristic reason – the family venture – but that has now been terminated, and so any unearned share of the assets must be returned. Peter Birks would have had that down as an unjust enrichment action even on his conversion to the absence of basis view. This also means that not every breach of contract can be turned into a UE action, but only those where the contract is terminated for breach.

Duncan

Colleagues:

I was wondering what others thought about Kerr v Baranow. It seems to me that although Canadian courts like to analyze the breakdown of quasi-marital relationships in terms of unjust enrichment, the law of unjust enrichment doesn't do a lot of the work.  For example, the court says that the enrichment is the retention of a disproportionate share of the assets accumulated during the relationship. How does one know if the retention is disproportionate? One needs to analyze the agreement/partnership between the parties and the terms of the joint family venture. It is therefore the law of partnership/family joint ventures which sets the baseline between the quasi-spouses and which is the juristic reason. The cause of action in UE is therefore irrelevant to this determination.

It also appears to me that by the courts' reasoning in these types of cases, every breach of contract case could be turned into an UE action since one could ask if the breaching party is retaining a a disproportionate share of the goods, which would then be analyzed by interpreting the contract.

Is this how others understand these cases?

Sincerely,

Jason Neyers

Associate Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435 

On 2/18/2011 10:17 AM, Lionel Smith, Prof. wrote:

Greetings everyone,

An important case was released by the Supreme Court of Canada this morning

dealing with unjust enrichment and resulting and constructive trusts in the

domestic cohabitation context: Kerr v Baranow 2011 SCC 10 is at

http://www.canlii.org/en/ca/scc/doc/2011/2011scc10/2011scc10.html

Among other things, the unanimous judgment resolves an ongoing controversy

about whether there could be personal awards in unjust enrichment measured

by the value surviving; answer, yes. It also seems to put an end to that

Canadian sport, the common intention resulting trust. And it reaffirms the

Garland approach to juristic reasons.

Warning, it's a long one...

Lionel

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This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.