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I do not think that the case of Mack v Canada has been mentioned on the RDG yet. This is a potential class action arising out of the imposition, during the years 1885-1923, of a 'head tax' on immigrants to Canada from China. (During the period 1923-1947 Chinese immigrants were effectively excluded from Canada.)

The plaintiffs put forward three causes of action: (a) two violations of s. 15 of the Charter, which prohibits governmental discrimination; (b) a violation of customary international law; (c) unjust enrichment. The Ontario Supreme Court of Justice ((2001), 55 O.R. (3d) 113) and the Court of Appeal ((2002), 60 O.R. (3d) 373 (C.A.)) have struck out the statement of claim as disclosing no reasonable cause of action. Leave to appeal has been sought [2002] S.C.C.A. No. 476.

Some claims are based on argued present (or recent) injustices, particularly a form of discrimination in that the government has made reparations to Japanese Canadians interned during WWII but has not made any reparations in this case. The unjust enrichment claim, however, is based on the head tax payments.

I am giving a paper this weekend at a conference arising out of the litigation. My initial analysis of the unjust enrichment claim was that restitution was impossible unless the legislation could be shown to be invalid at the time the tax was paid, either due to inconsistency with some then-existing superior norm, or by the enactment of some later norm with retroactive effect. Both of these arguments were made, but they are very difficult. The former has to be based on international law, and the latter on the Charter. The SCC has held that s. 15 of the Charter, which came into effect in 1985, does not have retroactive effect: Benner v Canada (Secretary of State), [1997] 1 S.C.R. 358, 143 D.L.R. (4th) 577. It is clear that s. 15 cannot make governments liable for harm caused by pre-1985 discrimination.

However, Benner says that while s. 15 does not work retroactively, it operates against ongoing discrimination which continues in force after 1985, even if some of the crucial facts (in Benner's case, the circumstances of his birth) occurred before 1985. This has led me to consider the following argument. Normally an enrichment and corresponding deprivation are unjust only if the factors which make them so are present at the time of the transfer. However, there is clearly a qualification to this in the case of failure of basis. In that case, there is a kind of seed of injustice in place at the time of the transfer (a mutual understanding as to its basis), which germinates if the basis fails. See A. Burrows, The Law of Restitution, 2 ed., 332-333, commenting on this unusual feature. Following the pattern of failure of basis, I wonder whether it is possible to argue that a transfer based on discriminatory legislation might not be unjustified at the time it is made, but when subsequently a constitutional enactment is passed which forbids governmental discrimination (including by legislation), the seed of injustice germinates and the transfer becomes unjustified. This ends up actually following Benner, because you can say that you are not relying on a retroactive operation of s. 15, but only on a continuing state of affairs which is contrary to s. 15, namely the ongoing enrichment of the state, acquired through overtly discriminatory legislation. This would preserve the result that past harm caused by discrimination is not compensable due to the coming into force of s. 15, since we do not want to make conduct wrongful retroactively; but it would distinguish the case of unjust enrichment, which does not turn on wrongdoing. And just as in the case of failure of basis, an argument that the enrichment has been dissipated between the transfer and the completion of the injustice (or later) would be for the defendant to make (and would not anyway arise on a defendant's striking out motion). Again following the example of failure of basis, the limitation period would not start to run until 1985 (or maybe even from Benner in 1997 on a discoverability basis).

I thought this case might spark some discussion, and in any event I would be grateful for any thoughts on my ideas as outlined above.

The judgments, the legislation, and other related material including pleadings is available on the conference web site, http://www.law.utoronto.ca/conferences/reparations.html

Lionel