The Unjust Enrichment Apocalypse in Canada
![handle is hein.journals/canadbus68 and id is 126 raw text is: THE UNJUST ENRICHMENT APOCALYPSE IN CANADA
Sagi Peari*
It has been forcefully argued that the doctrinal status of unjust
enrichment in the UK is a 'disaster'. This article considers the
application of the 'disaster' argument to the context of Canadian
unjust enrichment jurisprudence. An examination of the decisions of
the Supreme Court of Canada reveals the shaky foundations of this
jurisprudence. Many of the critiques made in the UK context apply
to Canada. Furthermore, the article shows two additional serious
flaws in Canadian jurisprudence. First, Canadian jurisprudence has
failed to acknowledge the distinctive nature of restitutionary claims
made in the context of cohabitants. Second, the development of
Canadian private law's unjust enrichment doctrine occurred (troub-
lingly) in the context of public law cases and now this ill-informed
doctrine provides (no less troublingly) the framework for the
adjudication of private law cases. From this perspective the Canadian
law of unjust enrichment is more than a disaster; it is an apocalypse.
I. INTRODUCTION
Restitutionary claims are important. They present themselves in
a wide range of social and commercial settings, such as mistaken
transfers of money, contract frustration, provisions of unrequested
services, gains received following the commitment of a wrong,
payment of another person's debt and improperly collected taxes.
Despite the vivid significance of those claims, their normative basis
remains controversial.
Oxford University Professor Peter Birks [1941-2004] has been
considered one of private law's oracles of the 20th century.1 His
innovative work aimed to provide a unifying 'skeleton'2 for the
vast majority of restitutionary claims under a single normative
framework of so-called 'unjust enrichment'. Birks doubted the
* Associate Professor, University of Western Australia Law School. I am indebted
to Professors Robyn Carroll, Erika Chamberlain, Hanoch Dagan, Lusina Ho,
Rick Krever, James Penner, Amy Sepinwall, Nolan Sharkey, Emily Stolzenberg,
Warren Swain, Graham Virgo, Ernest Weinrib, the participants of the Obliga-
tions X Conference in Banff, Canada (July 2023), and two anonymous reviewers
for their comments and discussions of the issues in this article.
1. Andrew Burrows and Alan Rodger, Introduction in Andrew Burrows and
Alan Rodger eds, Mapping the Law: Essays in Memory of Peter Birks (Oxford:
Oxford University Press, 2006) 1, at p. 1.
2. Peter Birks, An Introduction to the Law of Restitution, rev. ed. (Oxford: Oxford
University Press, 1989), at p. 4.
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The Unjust Enrichment Apocalypse in Canada
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