Unjust Enrichment
| Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
| Pages | 305-323 |
CHAPTER
1
'
UNJUST
ENRICHMENT
A.
INTRODUCTION
The
previous
two
chapters
have
considered
the
choice
of
law
rules
for
two
well-known
parts
of
the
law
of
obligations,
namely
contract
and
tort.
Each
of
these
areas
of
the
law
required
little
introductory
explan
ation.
In
contrast,
unjust
enrichment
is
less
well
understood,
especially
by
law
students.
One
reason
for
this
is
that
the
law
in
this
area
de
veloped
much
more
recently
in
the
common
law
than
did
contract
and
tort.
In
addition,
claims
in
this
area
arise
less
frequently.
Accordingly,
a
brief
introduction
to
the
core
concepts
is
required.
In
Canada,
a
claim
to
reverse
an
unjust
enrichment
requires
the
plaintiff
to
show
(1)
that
the
defendant
has
been
enriched;
(2)
that
the
enrichment
is
at
the
plaintiff
’
s
expense;
and
(3)
that
there
is
no
“
juris
tic
reason,
”
such
as
a
contract
or
a
gift,
for
the
enrichment.
1
A
leading
example
can
be
drawn
from
the
area
of
mistaken
payments.
Consider
Anne,
who
thinks
she
owes
Brian
$100
and
pays
that
amount
to
him.
In
reality,
Anne
owed
the
$100
to
Carrie.
When
Carrie
demands
payment,
Anne
complies
and
then
asks
Brian
for
the
first
$100
back.
If
Brian
re
fuses,
we
must
determine
the
legal
basis
on
which
Anne
could
recover
the
$100.
She
has
no
contract
with
Brian,
and
his
retention
of
the
$100
1
Pettkus
v
Becker,
[19801
2
SCR
834
at
848,
Dickson
J;
Garland
v
Consumers
’
Gas
Co,
[2004]
1
SCR
629
at
para
30,
lacobucci
J;
Kerr
v
Baranow,
2011
SCC
10
at
para
32,
Cromwell
J.
305
306
CONFLICT
OF
LAWS
paid
to
him
is
not
a
tort,
so
those
areas
of
the
law
are
of
no
help.
Anne
’
s
claim
is
in
unjust
enrichment.
There
is
no
juristic
reason
to
which
Brian
can
point
as
basis
for
his
retaining
the
enrichment.
Anne
paid
him
by
mistake,
which
vitiates
the
intent
to
transfer
the
money.
This
is
a
very
simple
example,
but
it
could
easily
be
modified
to
involve
a
financial
institution
mistakenly
transferring
millions
of
dollars.
If
all
of
the
factual
connections
in
an
unjust
enrichment
case
are
with
the
jurisdiction
hearing
the
dispute,
there
is
no
choice
of
law
issue.
How
ever,
it
is
easy
to
envisage
situations
where
some
of
the
connections
will
be
with
other
jurisdictions.
Staying
with
the
mistaken
payments
example,
wire
transfer
payments
can
easily
be
made
around
the
world.
In
such
cases,
a
choice
of
law
rule
for
unjust
enrichment
becomes
essential.
However,
we
are
immediately
confronted
with
a
significant
diffi
culty.
Unlike
for
contract
and
tort,
there
is
little
clear
authority
for
an
unjust
enrichment
choice
of
law
rule.
Several
factors
have
combined
to
produce
this
situation.
First,
unjust
enrichment
was
recognized
as
a
dis
tinct
area
of
law
in
England
only
in
the
1990s
and
in
Canada
there
are
few
cases
prior
to
the
1980s.
As
a
result,
there
was
little
opportunity
to
develop
a
choice
of
law
rule.
Second,
in
light
of
the
first
factor,
litigants
chose
not
to
raise
potential
choice
of
law
issues
when
they
did
arise.
They
thought
doing
so
would
make
the
proceedings
more
complex
and
less
predictable.
Third,
in
Canada
the
substantive
law
of
unjust
enrich
ment
is
largely
common
law,
and
thus
quite
uniform
across
the
country,
reducing
the
number
of
possible
cases.
Fourth,
in
the
few
cases
that
did
arise,
there
was
a
tendency
to
accept
the
choice
of
law
rule
proposed
by
leading
academics
rather
than
litigating
the
issue
further.
Unjust
enrichment,
therefore,
is
quite
different
from
other
areas
of
choice
of
law.
It
is
difficult
to
articulate
the
current
rule
with
a
high
degree
of
confidence,
which
can
be
frustrating.
Yet
as
more
cases
arise,
Canadian
courts
will
be
required
to
formulate
a
choice
of
law
rule
for
unjust
enrichment.
This
will
provide
an
excellent
opportunity
to
debate,
using
the
core
principles
of
choice
of
law,
what
the
rule
should
be.
A
final
introductory
point
should
be
made
about
characterization.
2
Because
unjust
enrichment
is
a
developing
area
of
the
law
of
obligations,
it
is
common
to
see
disagreements
about
whether
a
claim
is
one
in
unjust
enrichment
or
not.
Part
of
this
confusion
flows
from
the
historic
link
between
unjust
enrichment
and
restitution.
Restitution
is
not
a
cause
of
2
See
Stephen
GA
Pitel,
“
Characterisation
of
Unjust
Enrichment
in
the
Conflict
of
Laws
”
in
Jason
Neyers,
Mitchell
Mclnnes,
&
Stephen
GA
Pitel,
eds,
Understand
ing
Unjust
Enrichment
(Oxford:
Hart,
2004);
Pattarapas
Tudsri,
“
Characteriza
tion
of
Proprietary
Restitution
in
the
Conflict
of
Laws
”
(2013)
44
Ottawa
Law
Review
261.
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