Prof. Mitchell McInnes authors two new publications

Professor Mitchell McInnes has recently released two publications: the second edition of his book The Canadian Law of Unjust Enrichment and Restitution and an article for the Canadian Business Law Journal titled “Waiver of Tort, Contract, Disgorgement, and Unjust Enrichment: Clarity in the Supreme Court of Canada.”

The Canadian Law of Unjust Enrichment and Restitution provides comprehensive coverage of the cause of action for unjust enrichment (which involves unjustified transfers between the parties) and the remedy of restitution (which reverses unjustified transfers). Although it was neglected for much of the 20th century, the subject has experienced a renaissance during the last thirty years and is now recognized, alongside contract and tort, as a third source of private law obligations – especially in Canada where the courts have carved out a distinctive Canadian conception of unjust enrichment.

Since the 2014 first edition of the book, Canadian courts have delivered hundreds of decisions in the area. While many of those judgments applied established principles, a significant number substantially refined or revised the law.

“The extent of those developments is reflected in the fact that more than 150,000 words and 700 pages were added to the second edition,” says McInnes. The book now runs to approximately 1,000,000 words and 2,500 pages.

The article “Waiver of Tort, Contract, Disgorgement, and Unjust Enrichment: Clarity in the Supreme Court of Canada” examines the Supreme Court of Canada’s judgment in Atlantic Lottery Corp Inc v Babstock.

That decision concerned the availability of gain-based remedies for civil wrongs. More specifically, it distinguished between unjust enrichment and restitution on the one hand, and civil wrongs and disgorgement (a remedy that compels a wrongdoer to give up ill-gotten gains) on the other. The decision also abolished the ancient concept of “waiver of tort” and refined the rules governing gain-based relief for breach of contract.

“While Atlantic Lottery established a number of specific rules and propositions, its primary importance may lie in its definition of ‘unjust enrichment’ and ‘restitution,’” says McInnes. “Canadian courts have habitually used those terms in reference to two entirely distinct ideas — such as reversing unwarranted transfers and stripping away wrongful gains. The result has been confusion and often injustice, and after Atlantic Lottery that problem should no longer exist.”