Enrichments and Reasons for Restitution: Protecting Freedom of Choice

By McInnes, Mitchell | McGill Law Journal, September 2003 | Go to article overview

Enrichments and Reasons for Restitution: Protecting Freedom of Choice


McInnes, Mitchell, McGill Law Journal


This article analyzes the role of freedom of choice in the Canadian law of unjust enrichment. Courts must balance the plaintiff's interest in recovering a benefit, with which she did not freely part, against the defendant's interest in controlling the allocation of resources in his possession. The primary means of resolving this tension has in the element of enrichment: The defendant will not be considered legally enriched unless he either chose to assume financial responsibility for the benefit that he received from the plaintiff or, in the circumstances, had no choice to make.

The author argues that, since the defendant's autonomy is sufficiently protected by the element of enrichment, the courts should not additionally protect that same interest when formulating the reasons for restitution at the third stage of the unjust enrichment analysis. Liability generally should be strict--it should be triggered by the plaintiff's lack of intention. Decisions that premise liability upon a "special relationship" or "knowing receipt" unduly favour the defendant's interests and therefore should be reconsidered by Canadian courts.

Cet article analyse le role de la liberte de choix en matiere d'enrichissement injustifie au Canada. Les tribunaux doivent equilibrer l'interet de la partie demanderesse a recuperer un benefice auquel elle n'a pas librement contribue, avec l'interet du defendeur controler la repartition des ressources en sa possession. Le principal moyen de resoudre cette tension repose sur l'element d'enrichissement. Le defendeur ne sera pas repute enrichi a moins qu'il ait choisi d'assumer sa responsabilite financiere pour le benefice recu de la partie demanderesse, ou si les circonstances ne lui permettaient pas de faire ce choix.

L'auteur affirme ensuite que puisque l'autonomie du defendeur est suffisamment protegee par l'element d'enrichissement, les tribunaux ne devraient pas ajouter a cette protection lorsqu'ils enoncent les motifs de restitution a la troisieme etape du test de l'enrichissement injustifie. La responsabilite devrait generalement demeurer stricte, en ce sens qu'elle devrait etre declaree par l'absence d'intention de la partie demanderesse. Les decisions qui fondent la responsabilite sur un <> ou un <> favorisent indument les interets du defendeur, et devraient par consequent etre reconsiderees par les tribunaux canadiens.

Introduction

Introduction

The law must carefully balance competing interests when formulating the scope of restitutionary relief. It must respect the plaintiff's claim to recover the value of a benefit that she conferred upon the defendant. It must also, however, respect the defendant's desire to control the disposition of wealth in his possession. Rules that unduly favour one interest over the other will produce unfair results. Too little restitution will allow the defendant to be improperly enriched at the plaintiff's expense. The defendant will be allowed to retain a benefit that, in justice, ought to be returned. Too much restitution, ironically, will allow the plaintiff to be improperly enriched at the defendant's expense. The former will be allowed to take from the latter more than is unjustifiably received.

There are various strategies for striking a balance between the parties' interests. These strategies are tied to the three elements of the cause of action in unjust enrichment, to which restitution invariably responds: (1)

1. an enrichment to the defendant,

2. a corresponding deprivation to the plaintiff, and

3. an absence of any juristic reason for the enrichment. (2)

The second element of unjust enrichment provides relatively little scope for mediating a compromise between the parties. Although greater subtlety occasionally is required, (3) there are, for the most part, only two options. (4) Moreover, the difference between these options tends to be significant only in a narrow band of cases that involve the concept of passing on. …

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