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The query posed by Nicky Shaw reminded me of a Canadian action for unjust enrichment arising out of alleged financial benefits obtained by Clifford Olson, who was convicted of the murder of 11 children in British Colombia in 1982. Olson had struck a deal with the Royal Canadian Mounted Police that he would provide information about the location of the 11 bodies if the RCMP would pay Olson $100,000. The Attorney General authorised the payment on condition that it be paid into a trust fund for the benefit of Olson's wife and child, and that Olson himself would not benefit under any circumstances from the fund. The fund created enormous public controversy.

In a transparent attempt to strip the Olson family of the trust fund, the parents of 7 of the victims obtained default judgment against Olson for damages under the Family Compensation Act, and then sought to execute on those judgments against the trust fund, arguing that it was impressed with a constructive trust for the benefit of the plaintiffs. Their argument ran that Olson's family was unjustly enriched when the fund was created. Clifford Olson benefited as a result of the unjust enrichment of his family, and as it was contrary to public policy to commit a criminal to benefit from his crime, the enrichment was unjust. This enrichment resulted in a corresponding deprivation of the plaintiffs, because their damages awards were a quantification of the losses inflicted by the criminal acts which led to the fund. The case was thus clearly predicated on unjust enrichment by subtraction. The plaintiffs succeeded at trial, but the British Columbia Court of Appeal reversed the order, in a judgment reported at (1986) 3 Western Weekly Reports 403 sub nom. Rosenfeldt et al. v. Olson.

The Court of Appeal relied on the absence of a corresponding deprivation. The evidence of the Attorney General was that the payment was not in respect of the children's deaths, but for information which would provide evidence to support convictions for their murders, and to resolve the parents' uncertainty as to whether or not their children were still alive. Accordingly, the payment to the trustee did not deprive the plaintiffs of money which otherwise would have been properly payable to the plaintiffs.

It would seem that the divergence of opinion between the trial judge and the Court of Appeal turned on the event which triggered the plaintiffs' alleged deprivation -- the death, or the creation of the trust fund. The whole argument was distorted by the implicit classification of the claim as being unjust enrichment by subtraction.

Returning to the Simpson case, from a practical perspective, given that the receipt of the profits has served to swell the assets of the judgment debtor, there seems to be little point in following the restitutionary route unless and until the perpetrator continues to receive profits from his wrong in excess of his liability to the plaintiffs, and their judgments have been fully satisfied. Only then would the question whether the claim is more properly framed in unjust enrichment by wrongdoing or unjust enrichment by subtraction become a real issue.

Laura C.H.Hoyano
Department of Law
University of Bristol
Wills Memorial Building
Queens Road,
Bristol BS8 1RJ
tel. 0117-928-8979
fax 0117-925-1870