The Law of Restitution.

• Author: Yalden, Robert
• Position: Book Review

Peter D. Maddaugh and John D. McCamus, The Law of Restitution. Aurora, Ont.: Canada Law Books, 1990. Pp. x, 791 [$125.00]. Reviewed by Robert Yalden *.

The last few years have been eventful ones for the law of restitution in Canada. In LAC Minerals Ltd. v. International Corona Resources Ltd., (1) the Supreme Court of Canada engaged in a lengthy analysis of the range of relationships that give rise to fiduciary duties--duties that frequently serve to ground claims for restitution. In LAC Minerals and in Rawluk v. Rawluk, (2) the Court explored one of the law of restitution's favorite remedies: the constructive trust. And in Air Canada v. British Columbia (3) it took a major step toward brushing aside the anachronistic distinction between payments made due to mistakes of fact and those made due to mistakes of law. While this remarkably energetic exercise in housecleaning has gone on, David Stevens has been busy rethinking the very foundations of the structure that shapes the law of restitution, suggesting that greater coherence and clarity can be attained if one defines the cause of action in unjust enrichment as "non-consensual receipt and retention of value." (4) As if this were not enough, Peter D. Maddaugh and John D. McCamus have now produced a treatise that is very much concerned to highlight distinctive features of the law of restitution in Canada. (5)

With so much going on, one can only welcome the advent of a detailed overview and analysis of the law of restitution that explores the implications of recent developments in Canadian jurisprudence. While courts in this country continue to effect important changes to the law of restitution, the judiciary can but tackle problems on a sector by sector basis, and then only with a rather limited say about the nature and sequence of the issues to be addressed. (6) A treatise, on the other hand, offers an opportunity to conduct a comprehensive review of all facets of the subject, one that can draw out organizing principles which may in turn provide coherence and conceptual unity across what previously appeared to be discrete and disparate corners of the law.

Of course, not all treatises set out to provide this kind of wide ranging exploration--and recharacterization--of a given area of law. They may, on the one hand, seek to provide a snapshot of the state of the law, concentrating on supplying a particularly detailed picture of the components that are commonly assumed to make up the relevant body of law. One would obviously be oversimplifying were one to suggest that Goff and Jones' The Law of Restitution (7) falls squarely into this category, particularly since it has played a crucial role in shaping the very structure of the law of restitution. Still, it is fair to suggest that portions of this treatise are often content to trace the evolution and contours of a particular strand of the law of restitution, with the result that one is not altogether sure whether that strand fits neatly into a web structured by a few simple organizing principles or whether it is instead something of a loose thread.

At the other end of the spectrum, there are treatises that are not concerned to produce a finely etched picture of the law as it has evolved. Rather, they seek to recharacterize the subject matter in light of a given set of organizing principles with a view to providing coherence which they suggest has previously gone missing. Peter Birks' An Introduction to the Law of Restitutions (8) is very much a member of this category. Indeed, responding to some of his critics, Birks observes:

Hedley would seem to think that carrying unjust enrichment back into nineteenth century decisions is a violation of their own particular truth. Which indeed it is. But, if it is right to say that in this field lawyers of that time were disabled by a demonstrable error, we are forced to choose between disturbing their vitiated truth or gravely delaying our own. (9) Maddaugh & McCamus does not fit neatly into either of these categories and in this respect it represents something of a new generation of treatise in the law of restitution. Rather than having to look on the barren landscape that led Birks to observe of the law of restitution that "[t]he shape of its skeleton has not been established," (10) Maddaugh & McCamus is able to look back over some three decades of Canadian jurisprudence in which an attempt has been made to give some structure to the subject matter. Whereas Goff & Jones sought to fight off the debilitating effects of implied contract theory and to build on a series of unfocused and frequently contradictory judicial pronouncements about whether there is a principle prohibiting unjust enrichment, Maddaugh &amp...