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I thought it best to start a new thread for the purpose of further discussing Mr Neyers' suggestion that the third element of the Canadian common law action in unjust enrichment does (or should) actually require proof of "absence of juristic reason for the defendant's enrichment," rather than proof of an "unjust factor." As the recent Ontario CA decision in Campbell v Campbell illustrates, the issue of some significance and certainly has not received the attention that it deserves. I am thankful to Mr Neyers for having raised it in the RDG.

Mr Neyers: "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.' ... [I]t 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."

I did not claim that your position was incorrect as a matter of logic (although I am not entirely sure how that term is being used). Rather, I pointed out that, among the reasons for preferring the English formulation to the Canadian formulation is the fact that the English formulation betters accords with common law tradition in the area of unjust enrichment. And given an option, it does, indeed, seem preferable for a common law jurisdiction to adopt an approach that is consistent with common law tradition.

Mr Neyers: "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)."

To the contrary, I believe that the Canadian courts' invocation of unjust factors does support the proposition that, at least on a descriptive level, Canadian law generally is the same as English law with respect to the third element of the action in unjust enrichment. The unjust factors were not merely coincidental features of the cited cases. Rather, they were, as Dickson J explained in Pettkus v Becker, essential elements to the availability of restitutionary relief. The function that they served was to positively justify the imposition of liability. They did not merely provide evidence of a lack of a juristic reason for the defendant's enrichment.

Mr Neyers: "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'?"

The proper characterisation of an action to recover property is, of course, a matter of some controversy. As a recent series of articles reveals, opinion is divided as to whether property is a triggering event or merely a response. There also is a growing body of literature that suggests that the causative event is not the action in unjust enrichment, even though the legal response may be restitution. I interpret your statement to support the proposition that the triggering event is unjust enrichment, but one that, anomalously under the orthodox approach, requires proof of the first and second elements, together with disproof of any juristic reason for the enrichment. Presumably, however, if a plaintiff is seeking recovery of her property, she is doing so for a particular reason - most commonly, because she did not truly intend for the defendant to enjoy the property as an enrichment. That is to say, she is seeking recovery on the basis of the unjust factor of impaired intention.

To further expand upon one point in the preceding paragraph, you indicate that a plaintiff under your theory of unjust enrichment would bear the onus of proving an enrichment, a deprivation and an absence of juristic reason for the enrichment. While the counter-argument admittedly is not conclusive, it would seem rather cumbersome to require a claimant to disprove all possible justifications for the defendant's enrichment. Certainly, the procedure under the orthodox approach, which requires the plaintiff to prove a positive factor supporting relief and then allows the defendant to prove a juristic reason for the enrichment (ie a defence), seems much cleaner.

With respect to the second part of your argument, I'm not entirely sure how required proof of an unjust factor necessarily increases the courts' scope of discretion. I've always thought that one of the great benefits of enumerating specific unjust factors is the fact that it makes "justice" look "downward to the cases," rather than "upwards to the sky." Are you suggesting that certainty would be increased if judges were subject to fewer guidelines and constraints? Or are you suggesting that certainty would be increased if judges were subject to the guidelines and constraints that you propose? If the latter, what are the guidelines and constraints that you propose?

Mr Neyers: "[Y]ou stated: 'it seems preferable to endorse a formulation ... 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 ... 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 ... 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."

This seems to go the heart of your position. As I understand it, you simply would prefer that Canadian common law jurisdictions adopt the civilian approach, rather than the traditional common law approach. That certainly is a possible avenue of development. However, it also suffers from a number of drawbacks. As previously noted, it simply is not the way that Canadian common law courts currently do business or have ever done business. Moreover, it re-introduces all of the same concerns that have been raised in the past in response to the suggestion that "absence of consideration" is a sufficient basis of relief.

In light of those concerns, I wonder what benefits would accrue from your proposal, such that the courts would be justified in departing from established practice.

Mitchell McInnes