The Role of the Supreme Court in the Development of a Canadian Law of Restitution


  • Nicholas Rafferty



In this essay, the author examines the emerging law of restitution and the peculiar and powerful contribution of the Supreme Court of Canada to its development and maturation. It is argued that the Supreme Court has assumed a leading role in fashioning the modern law of restitution in the Commonwealth. The first part of the paper traces the adoption and elaboration by the Canadian courts of a general principle of unjust enrichment with respect to both personal and proprietary claims. This involves an examination of specific cases in which the Supreme Court has embraced both the principle of unjust enrichment and the independent nature of the law of restitution. The essay then analyzes the contribution of the Supreme Court in applying that general principle across the full spectrum of restitutionary liability. Particular attention is focused upon the recognition of a defence of change of position, the recovery of benefits conferred under mistake, contribution among concurrent wrongdoers and the development of the remedial constructive trust. The author concludes that, despite the significant progress made by the Supreme Court, there are a number of areas in which further work is required to develop fully the principle of unjust enrichment.