Thanks Lionel. What you say about the case is correct, i.e., that the
Court elaborates on the Garland approach to juristic reason as applied
to the cohabitation context, but subject to two important caveats.
First, the Court plainly states that the existing categories of recovery
(i,e., mistake, duress, necessitous intervention, etc.) continue to
exist, but that the general principle against unjust enrichment is
available to extend the law beyond the existing categories (and
presumably can act as a check upon them). This plainly takes us back to
the rather orthodox view of the role of the general principle expressed
by McLachlin J., as she then was, in Peel (to which passage Cromwell
J.makes reference). In other words, it is not the Court's view that
Garland has wiped the slate clean and replaced all of the existing law
with the Garland rule. Second, paying attention to what the Court
actually did in this case is quite interesting. Cromwell J. worked out
in considerable (and, in my view, illuminating) detail, the precise
nature of the elements of the restitutionary claim for a portion of
jointly created wealth in a certain type of relationship. The factual
elements of the claim that the plaintiff must establish and the types of
facts that the plaintiff may rely upon in doing so are explained at
great length. To put the point in Birksian terms, the Court works out in
some detail the "unjust factor" that the plaintiff must establish and
how the plaintiff is to go about establishing it. As a practical matter,
this is quite inconsistent with any view that even if only in the
context of establishing new types of claims, common law Canada has moved
to a civilian "absence of basis" rule. On both points the decision is -
you will not be surprised that this is my view - extremely helpful.

John McCamus

>
> 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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>> <mailto:lionel.smith@mcgill.ca> <mailto:lionel.smith@mcgill.ca> .
>>
>>
>>
>>
>
>
>
>
>

====

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>.