The Unjust Enrichment Apocalypse in Canada

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 (troublingly) 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.