The Canadian common law of unjust enrichment seems to be struggling.

In Grover v. Hodgins, 2011 ONCA 72, <http://canlii.ca/t/2fg13>, the plaintiffs and defendants owned condos in a development in British Columbia. They and other Ontario owners were unhappy with the management corporation. A law firm was hired in BC and it sent a letter to all the owners advising them of the potential conflicts involved in a joint retainer. The defendant refused to participate in retaining the lawyers, while the other owners did. The law firm took proceedings and successfully had the management corporation removed. The plaintiffs sued the defendants in unjust enrichment for their share of the legal fees. The ONCA allowed an appeal, holding that it was not shown that the defendant was enriched since it had not requested the services and was not incontrovertibly benefited. It was not shown that the plaintiffs suffered a corresponding deprivation since they got the services they paid for. And anyway even if the defendant was enriched it was not unjust since they did not ask for the services.

In Middlesex Condominium Corporation 229 v. WMJO Limited, 2017 ONCA 27, <http://canlii.ca/t/gwwvf>, the plaintiff was successor in title of a developer that built condos on low-lying land. The relationship between gravity and sewage meant that the developer was not allowed by the City of London (ON) to build the condos unless it agreed to build and maintain a sewage pumping station. It did so. The agreement was registered and condos were built in 1990-91. The plaintiff operated the pumping station. Following mortgage defaults, the defendant acquired some of the land. It built condos, connected them to the sewage system, and contributed its share to the operation of the pumping station. The ONCA held in 2002 that positive covenants cannot run with freehold land. The defendant declined to continue paying its share after 2006. The plaintiff sued in unjust enrichment and won. The ONCA agreed that the positive covenants were not binding on the defendant but held ([16]): “An unenforceable contract is a recognized basis for granting a remedy in unjust enrichment.”

Is this consistent with Grover? Or with the holding of the Supreme Court on the unjust enrichment issue in Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 SCR 426,<http://canlii.ca/t/1ft7s>?