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I note that the plaintiff in Peel (Regional Municipality) v Canada [1992] 3 SCR 762 asked the court to revisit the question of recovery of taxes paid under invalid legislation. In the event the Court decided that Canada was not enriched, but McLachlin J added this:

Given these conclusions, I need not address the question of whether the reasons of La Forest J. in Air Canada v. British Columbia, [1989] 1 S.C.R. 1161, created a rule of public policy barring recovery against the government for charges made under invalid legislation, nor is it necessary for the Court to consider whether it wishes to give majority support to such a rule, presuming it to be applicable. That important question may be left to another day.

Steven Elliott

Lionel Smith wrote:

Greetings all, and welcome to new members.

Mitchell McInnes, in drawing to our attention Re Eurig, noted that the scope of LaForest J's decision in Air Canada v British Columbia is uncertain and that the new decision takes at least some of the sting out of the "fiscal chaos" theory which helped to deny recovery in Air Canada.

While we wait with bated breath for Kleinwort Benson v Birmingham and a holding on the mistake of law rule, it is perhaps worth noting that it is not totally clear that Air Canada abolished the distinction between mistakes of law and of fact in Canada. Many academics and courts of appeal (RLRs passim) have taken it in this sense, but La Forest J's statement that the distinction should play no part in the law of restitution was made for himself and two other judges of the six who participated in the decision. Two others expressly refrained from saying anything on the issue, and the sixth, Wilson J., said only that "the mistake of law doctrine, if it is to be retained, should certainly not be extended to monies paid under unconstitutional legislation"; which surely represents a decision not to comment on the rule generally. This may seem like pedantic head counting but as Mitchell noticed, Major J. relied on these numbers in order to bypass "fiscal chaos". He put his point in terms of "whether" the court would adopt La Forest J's theory, clearly implying that the court in Eurig did not feel that the judgment in Air Canada represented a firm holding of the court. If that is right, it must also be true of the mistake of law part.

Lionel