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Yesterday the SCC released Garland v Consumers Gas, which was first mentioned on the RDG in Nov 98, following the case's first trip to the SCC. That Oct 98 decision was to the effect that late payment penalties collected by the regulated utility defendant were criminally unlawful. Despite that, on the remission of the case, the trial judge and Ont CA said there could still not be restitution. The SCC has overturned that:

http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc025.wpd.html

The court has decided that the way of the future for Canada is a modified juristic reason approach. The plaintiff must show that there is no established juristic reason for the enrichment. Then a prima facie case is made out, and the burden shifts to the defendant to show why there should not be restitution.

Strangely, the court held that restitution is available only for payments made after the litigation was commenced in 1994. There are also comments on the defence of change of position (not available to a wrongdoing defendant, in this case, violation of criminal law). In general, the analysis is on the brief side.

Lionel