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>.