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Dear Professor McInnes,

Thank-you for your response to my first submission to the RDG. Generally, I agree with many of the points that you made, especially with your elucidation of the cases as being incoherent and with the point that many Canadian judges are confused as to juristic reason. I just had a few queries.

1. In your response to my e-mail you stated: "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."

To what group of cases or legal principles are you referring to with this statement? Are you referring only to the UE cases? If you are, it hardly seems correct to use a line of thought that I am attacking to prove that my point is incorrect as a matter of logic. That begs the question. Also, I don't think that pointing to the cases with the "unjust factors" of mistake or duress helps your argument much because the presence of these factors equally shows that the plaintiff did not truly intend the transfer as a gift or as part of a contract (hence no juristic reason).

Is another body of private law principle that sets up this point? I just can't think of what it is offhand. It seems as a matter of logic that if I went to court to ask for a piece of property back, all I would have to show was that I was the owner/best possessor and that the defendant had no claim to the property better than my own. Do I have to show "proof positive" to get relief? If I do, is this requirement based upon principle or is it merely a procedural requirement / holdover from a more formulaic era? As applied to an UE claim, it seems as a matter of logic that I should merely have to prove that the deprivation came from me and that you are not entitled to it. What does the intermediate "proof positive" step add, except a layer of discretion that judges can use to withhold relief on the "basis of amorphous notions of justice and equity"?

2. In response to my e-mail you stated: " 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... 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."

While this is a valid practical point (one proved by quite a few strange judgments), it says little about the logical implications of the juristic reason approach to UE. I could simply answer back that judges only need to be better informed as to what a juristic reason is. It is not a nebulous concept, as you implicitly claim, but simply one that is misunderstood by outcome and policy driven Canadian judges. If they understood the concept as it was meant to be understood (i.e as it is understood by [Quebec] civilians) there would be no problem whatsoever. It seems to me that there is an equal danger that Canadian judges will use the concept of "unjust factors" to achieve their desired policy goals.

Jason W. Neyers
Law Clerk, Ontario Court Of Appeal
(416) 327-5107