Garland v. Consumers' Gas Co., (2004) 186 O.A.C. 128 (SCC)

• Judge: Iacobucci, Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 09, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2004), 186 O.A.C. 128 (SCC);2004 SCC 25;43 BLR (3d) 163;[2004] CarswellOnt 1558;[2004] SCJ No 21 (QL);[2004] 1 SCR 629;237 DLR (4th) 385;186 OAC 128;130 ACWS (3d) 32;72 OR (3d) 80;JE 2004-931;319 NR 38;9 ETR (3d) 163

Garland v. Consumers Gas Co. (2004), 186 O.A.C. 128 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] O.A.C. TBEd. AP.028

Gordon Garland (appellant) v. Enbridge Gas Distribution Inc., previously known as Consumers' Gas Company Limited (respondent) and Attorney General of Canada, Attorney General for Saskatchewan, Toronto Hydro-Electric System Limited, Law Foundation of Ontario and Union Gas Limited (interveners)

(29052; 2004 SCC 25; 2004 CSC 25)

Indexed As: Garland v. Consumers' Gas Co.

Supreme Court of Canada

Iacobucci, Major, Bastarache, Binnie,  LeBel, Deschamps and Fish, JJ.

April 22, 2004.

Summary:

The plaintiff commenced a class action against Consumers' Gas Co. (now Enbridge Gas Distribution Inc.), seeking restitution for late payment penalties (LPPs) paid by customers since 1981. The plaintiff claimed that the payments, depending upon when they were made, could constitute payment of a criminal rate of interest contrary to s. 347 of the Criminal Code. Both the plaintiff and Consumers' Gas sought summary judgment. The parties sought a determination of the threshold question of whether s. 347 applied to the LPPs levied by Consumers' Gas.

The Ontario Court (General Division), in a judgment reported at 22 O.R.(3d) 451, held that the LPPs could not give rise to an offence under s. 347 because the payment of the penalty at a criminal rate of interest turned on the voluntary conduct of the customer. The court granted Consumers' Gas summary judgment dismissing the action. The plaintiff appealed.

The Ontario Court of Appeal, in a judgment reported 93 O.A.C. 155, dismissed the appeal. The plaintiff appealed.

The Supreme Court of Canada, Bastarache, J., dissenting, in a decision reported at 231 N.R. 1; 114 O.A.C. 1, allowed the appeal. The court held that charging the LPPs amounted to charging a criminal rate of interest under s. 347. The court set aside the summary judgment and remitted the matter to the trial court for further consideration.

The parties brought cross-motions for summary judgment. The plaintiff sought restitution for unjust enrichment of LPPs received by Consumers' Gas in violation of s. 347 of the Code. He also sought a preservation order requiring Consumers' Gas to hold LPPs paid during the pendency of the litigation subject to possible repayment. Consumers' Gas argued that: (1) the LPPs were collected pursuant to rate orders of the Ontario Energy Board (OEB) and, accordingly, s. 18 of the previous Ontario Energy Board Act (now s. 25) provided a complete defence to the plaintiff's claims; (2) pursuant to the "regulated industries defence", s. 347 of the Code could not apply to LPPs imposed and collected pursuant to orders issued by an administrative tribunal under a valid regulatory scheme; and (3) the plaintiff's claim was an improper collateral attack on the OEB orders. The intervenor, Toronto Hydro, submitted that the receipt of LPPs by Consumers' Gas did not violate s. 347(1) of the Code by virtue of s. 15 of the Criminal Code (act or omission in obedience of the laws made and enforced by persons in de facto possession of the sovereign power).

The Ontario Superior Court, in a decision reported at [2000] O.T.C. 266, granted Consumers' Gas's motion and dismissed the plaintiff's action. The court held that neither the "regulated industries defence" nor s. 15 of the Criminal Code provided Consumers' Gas with a defence. However, the court held that: (1) the plaintiff's claim was an impermissible collateral attack on the OEB orders; (2) s. 18 (now s. 25) of the Ontario Energy Board Act provided Consumers' Gas with a complete defence to the action; and (3) the plaintiff's claim for restitution could not succeed because the OEB orders represented a valid juristic reason for the demand and receipt of the LPPs. In a decision on costs, the court awarded Consumers' Gas costs on a party and party basis. The plaintiff appealed from the decision dismissing the action. He also sought leave to appeal from the decision on costs.

The Ontario Court of Appeal, Borins, J.A., dissenting, in a decision reported at 152 O.A.C. 244, dismissed the plaintiff's appeal from the dismissal of the action. The court did not agree with the motions judge that the plaintiff's action was a collateral attack on the OEB orders or that s. 18 (now s. 25) of the Ontario Energy Board Act constituted a bar to the action. However, the court held that the plaintiff's claim for restitutionary relief based on unjust enrichment could not succeed because two of the elements of unjust enrichment had not been established. The court granted the plaintiff leave to appeal from the costs order and allowed the appeal, stating that this was not an appropriate case for costs. The plaintiff appealed.

The Supreme Court of Canada allowed the appeal with costs throughout. The court held that the plaintiff's action was not a collateral attack on the OEB orders, that neither the "regulated industries defence" nor the "de facto defence" were available to Consumers' Gas and that Consumers' Gas could not rely on s. 18 (now s. 25) of the Ontario Energy Board Act. The court held that Consumers' Gas's reliance on the OEB orders to collect LPPs during the period from 1981 to 1994 provided a juristic reason for its enrichment. However, the court held that when the action was commenced in 1994, Consumers' Gas was put on notice that there was a serious possibility that the LPPs violated the Criminal Code and it was no longer reasonable for Consumers' Gas to rely on the OEB orders to authorize the LPPs and there was no longer a juristic reason for its enrichment. The court ordered that Consumers' Gas repay LPPs collected in excess of the interest limit stipulated in s. 347 after the action was commenced in 1994 in an amount to be determined by the trial judge.

Administrative Law - Topic 574

The hearing and decision - Decisions of the tribunal - Collateral attack - The plaintiff commenced a class action against Consumers' Gas Co., seeking restitution for unjust enrichment arising from late payment penalties (LPPs) levied by the utility in excess of the interest rate limit prescribed by s. 347 of the Criminal Code - Consumers' Gas had collected the LPPs in compliance with orders of the Ontario Energy Board (OEB) - The Supreme Court of Canada held that the action did not constitute an impermissible collateral attack on the OEB orders - The doctrine of collateral attack did not apply in this case because the specific object of the plaintiff's action was not to invalidate or render inoperative the OEB orders, but rather to recover money that was illegally collected by Consumers' Gas as a result of OEB orders - Further, the collateral attack cases all involved a party, bound by an order, seeking to avoid the effect of that order by challenging its validity in the wrong forum - In this case, the plaintiff was not bound by the OEB orders and the rationale behind the rule was not invoked - See paragraphs 71 to 72.

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - [See third Restitution - Topic 64 ].

Criminal Law - Topic 223

Statutory defences or exceptions - Act authorized by provincial regulatory statute (regulated industries defence) - The plaintiff commenced a class action against Consumers' Gas Co., seeking restitution for unjust enrichment arising from late payment penalties (LPPs) levied by the utility in excess of the interest rate limit prescribed by s. 347 of the Criminal Code - Consumers' Gas had collected the LPPs in compliance with orders of the Ontario Energy Board (OEB) - Consumers' Gas submitted that it could avail itself of the "regulated industries defence" because an act authorized by a valid provincial regulatory scheme could not be contrary to the public interest or an offence against the state - Consumers' Gas contended that the collection of LPPs pursuant to the OEB orders could not be considered to be contrary to the public interest and therefore could not be contrary to s. 347 of the Criminal Code - The Supreme Court of Canada held that in order for the regulated industries defence to be available to Consumers' Gas, Parliament needed to have indicated, either expressly or by necessary implication, that s. 347 of the Criminal Code granted leeway to those acting pursuant to a valid provincial regulatory scheme - Section 347 did not contain such an indication - The defence was not available - See paragraphs 74 to 79.

Criminal Law - Topic 227

Statutory defences or exceptions - Obedience to de facto law (s. 15) - The plaintiff commenced a class action against Consumers' Gas Co., seeking restitution for unjust enrichment arising from late payment penalties (LPPs) levied by the utility in excess of the interest rate limit prescribed by s. 347 of the Criminal Code - Consumers' Gas argued that since it collected the LPPs in compliance with orders of the Ontario Energy Board (OEB), it should be exempt from liability by virtue of the de facto doctrine - The Supreme Court of Canada rejected the argument - Consumers' Gas was not a government official acting under colour of authority and the case law did not support extending the doctrine's application beyond the acts of government officials - The underlying purpose of the doctrine was to preserve law and order and the authority of the government - Those interests were not at stake in this litigation - An extension of the doctrine to a private corporation that was simply regulated by a government authority was not supported by the case law and did not further the underlying purpose of the doctrine - See paragraphs 80 to 84.

Criminal Law - Topic 1741

Offences against property - Criminal interest rate - General - [See Criminal Law - Topic 223 and third Restitution - Topic 64 ].

Practice - Topic 3377

Interim proceedings - Preservation of property - When order for preservation of property available - The plaintiff commenced a class action against Consumers' Gas Co., seeking restitution for unjust enrichment arising from late payment penalties (LPPs) levied by the utility in excess of the interest rate limit prescribed by s. 347 of the Criminal Code - The plaintiff requested an "Amax-type" preservation order on the basis that the LPPs continued to be collected at a criminal rate and those payments would never have been made but for the delays inherent in litigation - The Supreme Court of Canada held that a preservation order was not appropriate where Consumers' Gas had stopped collecting the LPPs at a criminal rate and there would be no future LPPs to which a preservation order could attach - Even with respect to LPPs paid in the past to which such an order could attach, the court held that a preservation order should not be granted because it would serve no practical purpose - The plaintiff had not alleged that Consumers' Gas was impecunious or would not satisfy a judgment - Further, an Amax-type order allowed the defendant to spend the monies being held in the ordinary course of business and no actual fund would be created - The only thing that a preservation order would achieve would be to prevent Consumers' Gas from spending the LPP money in a non-ordinary manner, such as moving it off-shore, which the plaintiff had not alleged would occur - See paragraphs 85 to 86.

Practice - Topic 3377

Interim proceedings - Preservation of property - When order for preservation of property available - The plaintiff commenced a class action against Consumers' Gas Co., seeking restitution for unjust enrichment arising from late payment penalties (LPPs) levied by the utility in excess of the interest rate limit prescribed by s. 347 of the Criminal Code - The plaintiff requested an "Amax-type" preservation order on the basis that the LPPs continued to be collected at a criminal rate and those payments would never have been made but for the delays inherent in litigation - Consumers' Gas argued that the plaintiff was attempting to avoid rule 45.02 of the Ontario Rules of Civil Procedure, the only source of jurisdiction in Ontario to make a preservation order - Rule 45.02 provided that, "Where the right of a party to a specific fund is in question, the court may order the fund to be paid into court or otherwise secured on such terms as are just" - Consumers' Gas submitted that the plaintiff was not claiming a specific fund -The Supreme Court of Canada stated that in the absence of submissions by the plaintiff on the issue, the plaintiff had not satisfied the criteria set out in the Ontario Rules of Civil Procedure and the court could refuse to grant the order requested on that basis - See paragraph 87.

Practice - Topic 6270

Judgments and orders - Administrative orders - Collateral attack - [See Administrative Law - Topic 574 ].

Public Utilities - Topic 14

Liability of - Defences - Obedience to board order - A class action was brought against Consumers' Gas Co. for restitution for unjust enrichment arising from late payment penalties (LPPs) levied by the utility in excess of the interest rate limit prescribed by s. 347 of the Criminal Code - The LPPs had been collected by Consumers' Gas in compliance with orders of the Ontario Energy Board (OEB) - Section 18 of the former Ontario Energy Board Act (now s. 25) provided that an order of the OEB was a defence to any proceeding against a person in so far as the act or omission that was the subject of the proceeding was in accordance with the order -The Supreme Court of Canada held that the defence should be read down so as to exclude protection from civil liability damage arising out of Criminal Code violations - Section 18 (now s. 25) therefore could not provide a defence to an action for restitution arising from an OEB order authorizing criminal conduct and the defence did not apply in this case - The court stated that legislative provisions purporting to restrict a citizen's rights of action should attract strict construction - See paragraphs 67 to 69.

Public Utilities - Topic 4404

Public utility commissions - General - Jurisdiction - The plaintiff commenced a class action against Consumers' Gas Co., seeking restitution for unjust enrichment arising from late payment penalties (LPPs) levied by the utility in excess of the interest rate limit prescribed by s. 347 of the Criminal Code - Consumers' Gas had collected the LPPs in compliance with rate orders of the Ontario Energy Board (OEB) - The Supreme Court of Canada held that the OEB did not have exclusive jurisdiction over the dispute - While the dispute involved rate orders, at its heart it was a private law matter under the competence of civil courts - Consequently, the OEB did not have jurisdiction to order the remedy sought by the plaintiff - See paragraph 70.

Public Utilities - Topic 4679

Public utility commissions - Regulation - Rates - Interest (incl. late charges) - [See third Restitution - Topic 64 ].

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - The Supreme Court of Canada stated that "the proper approach to the juristic reason analysis is in two parts. First, the plaintiff must show that no juristic reason from an established category exists to deny recovery ... The established categories that can constitute juristic reasons include a contract, a disposition of law, a donative intent, and other valid common law, equitable or statutory obligations. If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis. The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. As a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. This stage of the analysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery" - See paragraphs 44 to 45.

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - The Supreme Court of Canada stated that the proper approach to the juristic reason analysis had two parts - The plaintiff first had to show that no juristic reason from an established category existed to deny recovery - If there was no juristic reason from an established category, then the plaintiff had made out a prima facie case - However, the prima facie case was rebuttable where the defendant could show that there was another reason to deny recovery - The court stated that "as part of the defendant's attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations. It may be that when these factors are considered, the court will find that a new category of juristic reason is established. In other cases, a consideration of these factors will suggest that there was a juristic reason in the particular circumstance of a case but which does not give rise to a new category of juristic reason that should be applied in other factual circumstances. In a third group of cases, a consideration of these factors will yield a determination that there was no juristic reason for the enrichment. In the latter cases, recovery should be allowed. The point here is that this area is an evolving one and that further cases will add additional refinements and developments" - See paragraph 46.

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - The plaintiff commenced a class action against Consumers' Gas Co., seeking restitution for late payment penalties (LPPs) paid by customers since 1981 - The basis for the action was that the LPPs constituted payment of a criminal rate of interest contrary to s. 347 of the Criminal Code - The LPPs were authorized by Ontario Energy Board orders - The Supreme Court of Canada held that the OEB orders were constitutionally inoperative to the extent of their conflict with s. 347 of the Criminal Code and they therefore did not provide a juristic reason which would bar recovery - Since there was no juristic reason from the established categories, it fell to Consumers' Gas to show that there was a juristic reason for the enrichment outside the established categories - That analysis required a consideration of the reasonable expectations of the parties and public policy considerations - After weighing those considerations, the court held that Consumers' Gas's reliance on the inoperative OEB orders during the period from 1981 to 1994 provided a juristic reason for the enrichment since there was no suggestion that Consumers' Gas was aware during that period that the LPPs violated s. 347 - However, when the action was commenced in 1994, Consumers' Gas was put on notice that there was a serious possibility that the LPPs violated the Criminal Code and it was no longer reasonable for Consumers' Gas to rely on the OEB orders to authorize the LPPs - Therefore, after the action was commenced in 1994, there was no longer a juristic reason for the enrichment of Consumers' Gas and the plaintiff's claim for unjust enrichment was made out for LPPs paid after 1994 - See paragraphs 48 to 61.

Restitution - Topic 65

Unjust enrichment - What constitutes enrichment - The plaintiff commenced a class action against Consumers' Gas Co., seeking restitution for unjust enrichment arising from late payment penalties (LPPs) levied by the utility in excess of the interest rate limit prescribed by s. 347 of the Criminal Code - The Ontario Court of Appeal held that receipt of the LPPs did not confer a benefit on Consumers' Gas and therefore could not support a finding of enrichment - The court considered that since the LPPs were part of a scheme designed to recover Consumers' Gas's overall revenue, any increase in LPPs was off-set by a corresponding decrease in regular rates - Therefore, the enrichment that followed from receipt of the LPPs was passed on to all Consumers' Gas customers in the form of lower gas delivery rates - The Supreme Court of Canada disagreed - The LPPs were payments of money and a transfer of money clearly conferred a benefit - While the case law recognized that it might be unfair to award restitution in cases where the benefit was not retained, it did so after the three steps for a claim in unjust enrichment had been made out by recognizing a "change of position" defence - The court stated that whether recovery should be barred because the benefit was passed on to other Consumers' Gas customers should be considered under the change of position defence - See paragraphs 31 to 37.

Restitution - Topic 154

Benefit acquired from the plaintiff - General principles - Requirement of benefit to the defendant - [See Restitution - Topic 65 ].

Restitution - Topic 8003

Defences - Change of position - The plaintiff commenced a class action against Consumers' Gas Co., seeking restitution for unjust enrichment arising from late payment penalties (LPPs) levied by the utility in excess of the interest rate limit prescribed by s. 347 of the Criminal Code - Consumers' Gas argued that any benefit it received from the unlawful charges was passed on to other customers in the form of lower gas delivery rates and that having passed on the benefit, it should not be required to disgorge the amount of the benefit a second time to overcharged customers ("change of position defence") - The Supreme Court of Canada held that the plaintiff's claim for unjust enrichment was made out for LPPs paid after 1994 - The court held that the change of position defence was not available to Consumers' Gas because the LPPs were obtained in contravention of the Criminal Code and, as a result, it could not be unjust for Consumers' Gas to return them - See paragraphs 63 to 66.

Restitution - Topic 8003

Defences - Change of position - The Supreme Court of Canada stated that "Even where the elements of unjust enrichment are made out, the remedy of restitution will be denied where an innocent defendant demonstrates that it has materially changed its position as a result of an enrichment such that it would be inequitable to require the benefit to be returned" - The court further stated that "If the change of position defence is intended to prevent injustice from occurring, the whole of the plaintiff's and defendant's conduct during the course of the transaction should be open to scrutiny in order to determine which party has a better claim. Where a defendant has obtained the enrichment through some wrongdoing of his own, he cannot then assert that it would be unjust to return the enrichment to the plaintiff" - See paragraphs 63 and 65.

Statutes - Topic 510

Interpretation - General principles - Strict interpretation - [See Public Utilities - Topic 14 ].

Cases Noticed:

Garland v. Consumers' Gas Co., [1998] 3 S.C.R. 112; 231 N.R. 1; 114 O.A.C. 1, refd to. [para. 6].

Sprint Canada Inc. et al. v. Bell Canada et al. (1997), 48 O.T.C. 4; 79 C.P.R.(3d) 31 (Gen. Div.), refd to. [para. 12].

Ontario Hydro v. Kelly et al. (1998), 61 O.T.C. 123; 39 O.R.(3d) 107 (Gen. Div.), refd to. [para. 12].

Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R.(3d) 690 (Gen. Div.), refd to. [para. 12].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298, refd to. [para. 17].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 19].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384, refd to. [para. 30].

Peel (Regional Municipality) v. Canada - see Peel (Regional Municipality) v. Ontario.

Peel (Regional Municipality) v. Ontario, [1992] 3 S.C.R. 762; 144 N.R. 1; 59 O.A.C. 81, refd to. [para. 30].

Sharwood & Co. v. Municipal Financial Corp. et al. (2001), 142 O.A.C. 350; 53 O.R.(3d) 470 (C.A.), refd to. [para. 36].

Mobil Oil Canada Ltd. v. Rural Municipality of Storthoaks, [1976] 2 S.C.R. 147; 5 N.R. 23, refd to. [para. 37].

RBC Dominion Securities Inc. v. Dawson (1994), 114 Nfld. & P.E.I.R. 187; 356 A.P.R. 187; 111 D.L.R.(4th) 230 (Nfld. C.A.), refd to. [para. 37].

Rathwell v. Rathwell, [1978] 2 S.C.R. 436; 19 N.R. 91, refd to. [para. 38].

GST Reference - see Reference Re Goods and Services Tax.

Reference Re Goods and Services Tax, [1992] 2 S.C.R. 445; 138 N.R. 247; 127 A.R. 161; 20 W.A.C. 161, refd to. [para. 49].

Mack et al. v. Canada (Attorney General) (2002), 165 O.A.C. 17; 60 O.R.(3d) 737 (C.A.), refd to. [para. 49].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 53].

M & D Farm Ltd. et al. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; 227 N.R. 155; 129 Man.R.(2d) 125; 180 W.A.C. 125, refd to. [para. 53].

Transport North American Express Inc. v. New Solutions Financial Corp., [2004] 1 S.C.R. 249; 316 N.R. 84; 183 O.A.C. 342; 2004 SCC 7, refd to. [para. 55].

Oldfield v. Transamerica Life Insurance Co. of Canada et al., [2002] 1 S.C.R. 742; 284 N.R. 104; 156 O.A.C. 310; 2002 SCC 22, refd to. [para. 57].

Lipkin Gorman v. Karpnale Ltd., [1992] 4 All E.R. 512; 127 N.R. 380 (H.L.), refd to. [para. 64].

Toronto City et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 71].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, refd to. [para. 71].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 72].

Canada (Attorney General) v. Law Society of British Columbia - see Jabour v. Law Society of British Columbia et al.

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451, refd to. [para. 76].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1, refd to. [para. 78].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 81].

Amax Potash Ltd. et al. v. Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, dist. [para. 85].

Statutes Noticed:

Criminal Code, R.S.C. 1984, c. C-46, sect. 15, sect. 347 [para. 9].

Ontario Energy Board Act, R.S.O. 1990, c. O-13, sect. 18 [para. 9].

Ontario Energy Board Act, S.O. 1998, c. 15, Sch. B., sect. 25 [para. 9].

Authors and Works Noticed:

Constantineau, Albert A., A Treatise on the De Facto Doctrine (1910), pp. 3, 4 [para. 83].

Fridman, Gerald Henry Louis, Restitution (2nd Ed. 1992), p. 458 [para. 64].

Goff, Robert, and Jones, Gareth, The Law of Restitution (6th Ed. 2002), p. 18 [para. 36].

Lange, Donald J., The Doctrine of Res Judicata in Canada (2000), pp. 369, 370 [para. 71].

Maddaugh, Peter D., and McCamus, John D., The Law of Restitution (1990), pp. 38 [para. 36]; 46 [para. 49].

McInnes, Mitchell, Unjust Enrichment - Restitution - Absence of Juristic Reason: Campbell v. Campbell (2000), 79 Can. Bar Rev. 459, generally [para. 41].

Smith, Lionel D., The Mystery of "Juristic Reason" (2000), 12 S.C.L.R.(2d) 211, generally [para. 41]; pp. 212, 213 [para. 40].

Ziegel, Jacob S., Criminal Usury, Class Actions and Unjust Enrichment in Canada (2002), 18 Journal of Contract Law 121, p. 126 [para. 37].

Counsel:

Michael McGowan, Barbara L. Grossman, Dorothy Fong and Christopher D. Woodbury, for the appellant;

Fred D. Cass, John D. McCamus and John J. Longo, for the respondent;

Christopher M. Rupar, for the intervener, the Attorney General of Canada;

Thomson Irvine, for the intervener, the Attorney General for Saskatchewan;

Alan H. Mark and Kelly L. Friedman, for the intervener, Toronto Hydro-Electric System Limited;

Mark M. Orkin, Q.C., for the intervener, Law Foundation of Ontario;

Patricia D.S. Jackson and M. Paul Michell, for the intervener, Union Gas Limited.

Solicitors of Record:

McGowan Elliott & Kim, Toronto, Ontario, for the appellant;

Aird & Berlis, Toronto, Ontario, for the respondent;

Deputy Attorney General of Canada, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

Deputy Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervener, the Attorney General for Saskatchewan;

Ogilvy Renault, Toronto, Ontario, for the intervener, Toronto Hydro-Electric System Limited;

Mark M. Orkin, Q.C., Toronto, Ontario, for the intervener, Law Foundation of Ontario;

Torys, Toronto, Ontario, for the intervener Union Gas Limited.

This appeal was heard on October 9, 2003, before Iacobucci, Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by Iacobucci, J., on April 22, 2004.