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I write in response to Mr Neyers' suggestion that the Canadian action in unjust enrichment is different than its English counterpart and therefore possibly more amenable to the type of claim being discussed.

The cases and literature do, indeed, occasionally suggest that the third element of the Canadian cause of action proceeds on the basis of the absence of any reason (eg gift or contract) as to why the defendant should retain the enrichment, rather than on the basis of a positive reason why as to the plaintiff should enjoy recovery: see eg Peter v Beblow (SCC 1993 per McLachlin) Campbell v Campbell (Ont CA 1999), Beatson "Restitution in Canada: Commentary" in Restitution: Past, Present & Future.

Typically, however, Canadian courts require the plaintiff to prove a positive unjust factor, in essentially the manner as English courts: see eg County of Carleton v City of Ottawa (mistake); Air Canada v BC (mistake); Citadel Assurance v Lloyds Bank (knowing receipt); Peel v Canada. Moreover, although Dickson J in Pettkus v Becker authoritatively stated the third element of the Canadian action to consist of "an absence of juristic reason for the enrichment," he also: (i) specifically stated that common law has never been willing to grant relief upon mere proof of an enrichment and a corresponding deprivation, but rather has always insisted upon proof of a specific reason for awarding restitution, and (ii) invoked the unjust factor of free acceptance (the controversial nature of that concept is irrelevant to the present issue - as is the controversial nature of the concept of knowing receipt, which was noted above). As a matter of precedent, then, the better position is that Dickson J's formulation of the third element in unjust enrichment was not intended to place Canadian law on a different path than English law. That proposition finds support in the fact that Canadian courts, notwithstanding the language of Pettkus v Becker, commonly refer to "unjust factors," rather than to "absence of juristic reason for the enrichment": see eg Citadel Assurance v Lloyds Bank.

Mr Neyers, however, insists that the English formulation (proof of an unjust factor) cannot be preferred to the Canadian formulation (absence of juristic reason) on the basis of mere precedent. Two further points therefore are made in response.

First, as Dickson J noted in Pettkus v Becker, whereas the civilian tradition permits restitution simply because the defendant has no good claim to it, the common law tradition requires proof positive as to why the plaintiff should enjoy relief. While that proposition at root is based on precedent, it does not offend Mr Neyers' objection to arguments of the form "X case taught us ... or Lord X instructs that...". It is more substantial than that.

Second, it seems preferable to endorse a formulation of the third element of the cause of action in unjust enrichment that provides the courts with as much assistance as possible. (That is particularly true in Canada where judges increasingly and disturbingly seem inclined to decide cases on the basis of amorphous notions of justice and "equity.") And in that regard, an approach that categorizes the factors that historically have supported restitution in the common law tradition (but that allows for incremental and analogical extensions) seems far preferable to an approach that simply requires a judge to determine whether or not some (undefined) juristic reason exists for the fact that the defendant received an enrichment from the plaintiff.

Mitchell McInnes
University of Western Ontario