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I believe this is something he discusses in more detail in his book on the subject, which has been or will be published by cavendish.

From: Jason Neyers
Subject: [RDG:] Something Interesting?
Date: Thu, 4 Sep 2003 12:12:57 -0400

Dear Colleagues,

I was just reading Professor Birks' new article (brought to our attention by Lionel, see Peter B.H. Birks (2003) "A Letter to America: The New Restatement of Restitution", Global Jurist Frontiers: Vol. 3: No. 2, Article 2. Online at http://www.bepress.com/gj/frontiers /vol3/iss2/art2) and was surprised to find that it appears that he has now moved away from the unjust factors language to a formulation of the law in terms of "lack of explanatory basis" or in Canadian terms a "lack of juristic reason" (see p. 15). As he notes in fn. 39: "Since the swaps cases it seems that, unless their reasoning is to be rejected entirely, 'unjust' must be discussed in this civilian manner". Music to this Canadians ears!