25

The Surfing Ninjas

In association with

Arnold – Guest Productions

Present

Restitution – Spring 2005

Prof. “Mad-dog” Maddaugh

Table of Contents:

0.0 Index 01

Restitution at Common Law

1.0 Introduction 07

1.1 Historical Background 07

Restatement of the Law of Restitution: Underlying Principles 07

English History of Restitution 07

Slade’s Case 08

Common Counts 08

Moses v. Macferlan 08

Sinclair v. Brougham 08

Recent English Law on Restitution 08

Canadian History of Restitution 09

Deglman v. Guaranty Trust Co. of Canada 09

Petkus v. Becker 09

2.0 General / Tripartite Principle 09

Traditional v. General Principle Approach 09

Peel (Regional Municipality) v. Ontario 10

Unjust Enrichment, Benefits & Subjective Devaluation 10

Planche v. Colburn 10

William Lacey Ltd. v. Davis 11

Corresponding Deprivation 11

Absence of Juristic Reason 11

Gidney v. Shank 11

Mack v. Canada (Attorney General) 11

Garland v. Consumers’ Gas Co. 11

3.0 Mistake of Fact 12

Royal Bank v. The King 12

Royal Bank v. The King 4 Essentials Analysis 12

Kelly v. Solari 12

Chambers v. Miller 13

Jones v. Waring & Gillow Ltd. 13

Larner v. London County Council 13

Hood of Avalon (Lady) v. Mackinnon 13

Patterson Motors v. Reily 14

Krebs v. World Finance Co. Ltd. 14

Change of Position 14

Storthoaks (Rural Municipality) v. Mobil Oil Canada Ltd. 14

RBC Dominion Securities Inc. v. Dawson 14

Garland v. Consumers’ Gas Co. 15

Improvements Made to Another’s Land 15

Montroya v. Ontario Asphalt 15

Nicholson v. St. Denis 15

Greenwood v. Bennett 16

Olchowy v. McKay 16

Central Guarantee Trust Co. v. Dixdale Mortgage Investment Corp. 16

4.0 Mistake of Law 16

Origins to Mistake at Law Bar 17

Bilbie v. Lumley 17

Eadie v. Township of Brantford 17

Kelly v. Solari 17

Township of Nepean v. Ontario Hydro 17

Exceptions to the Traditional Rule 17

George (Porky) Jacobs Enterprises Ltd. v. City of Regina 18

Mistakes as to Private Rights 18

Cooper v. Phipps 18

Payment to Public Authorities Under Duress 18

Eadie v. Township of Brantford 18

Payments Under Ultra Vires Legislation 18

Air Canada v. British Columbia 18

Canadian Pacific Airways v. British Columbia 19

5.0  The Nature of the Operative Mistake 19

Ignorance of the Law 19

David Securities Property Ltd. v. Commonwealth Bank of Australia 19

Failure to Predict Overruling of Doctrine 19

Kleinwort Benson Ltd. v. Lincoln City Council 19

Statute that Retroactively Repeals a Tax that was Payable 20

Commissioner of State Revenue v. Royal Insurance Australia Ltd. 20

Limitations on the Right to Recover 20

6.0 Public Authorities 20

Colore Officii 20

Compulsion 20

Air Canada v. British Columbia 20

Woolwich Equitable Building Society v. Inland Revenue Commissioners 21

Re Eurig Estate 21

Passing On Defence 21

Air Canada v. British Columbia 21

Canadian Pacific Airlines v. British Columbia 21

Allied Air Conditioning v. British Columbia 22

7.0 Ineffective Transactions 22

Lack of Capacity (Mental) 22

Lack of Capacity (Minors) 22

Ultra Vires Contracts 22

Hammersmith 22

Westdeutsche Landesbank Girozentrale v. Islington L.C.B. 22

Illegality 23

Holman v. Johnson 23

St. John Shipping Corp. v. Joseph Rank Ltd. 23

Kiriri Cotton Co. Ltd. v. Dewani 23

Kingshott v. Brunskill 24

Still v. Minister of National Revenue 24

Illegality Exceptions 24

Want of Authority 24

Hazelwood v. West Coast Securities Ltd. 25

Mistake in Assumption 25

Smith v. Hughes 25

Bell v. Lever Bros. 25

Solle v. Butcher 26

Great Peace Shipping Ltd. v. Tsavliris Salvage (International) Ltd. 26

Mistake of Terms 26

Mistake of Terms (Lack of Privity) 27

Bolton v. Jones 27

Mistake of Terms (Non Est Factum) 27

Marvco Color v. Harris 27

Mistake of Terms (Mistake of Identity) 27

Ingram v. Little 27

Lewis v. Avery 28

Mistake of Terms (Ambiguity) 28

Raffles v. Wichelhaus 28

Hobbs v. Esquimalt & Nanaimo Railway 28

Frustration (Discharge for Breach) 28

Fibrosa Spolka Akcyjna v. Fairbain Lawson Combe Barbour Ltd. 29

Frustration (Recovery of Other Benefits) 29

Parsons Bros. Ltd. v. Shea 29

Frustration (British Columbia Frustrated Contracts Act) 29

8.0 Criminal Acts 29

Restitutionary Approach 29

Attorney General v. Guardian Newspapers Ltd. 29

Murder & Denial of Benefits 30

Re Johnson 30

Murder & Denial of Benefits (Life Insurance) 30

Demeter 30

Brissette Estate v. Westbury Life Insurance Co. 30

Irwin Estate v. Cumis Life Insurance Co. 30

Oldfield v. Transamerica Life Insurance Co. of Canada 30

Murder & Denial of Benefits (Joint Tenancy) 31

Schobelt v. Barber 31

Principle of Intent 31

Leggatte v. Smith 31

OMERS v. Young 31

Gray v. Barr 31

Canadian Indemnity Co. v. Walken Machinery & Equipment Ltd. 32

Co-operative Fire & Casualty v. Saindon 32

Mutual of Omaha Insurance Co. v. Stats 32

Straight Profit from Crime 32

Rosenfeldt v. Olson 32

Attorney General v. Blake 33

Wrotham Park Estate Co. Ltd v. Parkside Homes Ltd. 33

Surrey County Council v. Bredero Homes 33

Arbutus Park Estates Ltd. v. Fuller 33

9.0 Waiver of Tort 34

Lamine v. Dorell 34

United Australia Ltd. v. Barclays Bank Ltd. 34

Interference with Contractual Relations 34

Federal Sugar Refining v. United States Sugar Equalization Board 34

Trespass to Property 34

Phillips v. Homfray 35

Daniel v. O’Leary 35

Strand Electric & Engineering Co. Ltd. v. Brisford Entertainments Ltd. 35

Restitution v. Punitive Damages 35

Olwell v. Nye & Nisson Co. 35

Edwards v. Lee’s Administration 36

10.0 Compulsion 36

Duress 36

Duress (Threat of Violence) 36

Duress of Goods 36

Maskell v. Horner 37

Skeate v. Beale 37

Abuse of Process 37

Stoltz v. Fuller 37

Practical Compulsion 37

Knutson v. Bourkes Syndicate 37

Peter Cuat v. Ilkens Construction 37

Morton Construction Ltd. v. Hamilton 38

Municipal Spraying & Contracting Ltd. v. Newfoundland 38

Colore Officii 38

George (Porky) Jacobs Enterprises Ltd. v. City of Regina 38

Eadie v. Township of Brantford 38

Economic Duress 39

D&C Builders v. Rees 39

The Siboen & The Sibotre 39

The Atlantic Baron 39

Pau Onu v. Lao Yiu Long 39

Director of Public Prosecution v. Lynch 40

Universal Sentinel 40

Euig Luck 40

Economic Duress in Canada 40

Lister v. Dunlop 40

Stott v. Merit Investment Corp. 40

Restitution in Equity

11.0 Undue Influence 40

Allcard v. Skinner 40

Public Trustee v. Skoretz 41

O’Sullivan v. Management & Music Agency 41

Royal Bank of Scotland v. Ettridge 41

Geffen v. Goodman Estate 41

12.0 Breach of Fiduciary Duty 42

The Fiduciary Relationship 42

Pre-Cam Exploration v. MacTavish 42

Standard Investments v. C.I.B.C. 42

International Corona Resources Ltd. v. Lac Minerals Ltd. 43

Hodgkinson v. Simms 43

Scope of Fiduciary Duty 43

Courtwright v. C.P.R. 43

Schaeffer v. Chodoes 44

McLeod & More v. Sweezey 44

Duty of Loyalty 44

Guerin v. Canada 44

Conflict Rule 44

Bray v. Ford 44

Reading v. Attorney General 45

Profit Rule 45

Regal (Hastings) Ltd. v. Gulliver 45

Peso Silver Mines v. Cropper 45

Canadian Aero Services v. O’Malley 45

Fiduciary Liability 45

Boardman v. Phipps 46

Guinness Plc v. Saunders 46

Proprietary Remedies 46

Lister v. Stubbs 46

Attorney-General for Hong Kong v. Reid 46

13.0 Breach of Confidence 46

Prince Albert v. Strange 46

Coco v. A.N. Clark (Engineers) Ltd. 47

International Corona Resources Ltd. v. Lac Minerals Ltd. 47

Attorney General v. Guardian Newspapers Ltd. 47

Mixed Inventions 47

Seager v. Copydex 47

Right of Privacy 48

Douglas v. Hello! Ltd. 48

Campbell v. MNG Ltd. 48

Breach of Confidence Remedies 48

Cadbury Schweppes Inc. v. FBI Foods Ltd. 48

Just Cause (Excuse) Defence 49

Church of Scientology v. Kaufman 49

Woodward v. Hutchins 49

14.0 Unconscionable Transactions 49

Waters v. Donnelly 49

Harry v. Kreutziger 50

Griesshammer v. Ungerer & Miami Studios of Dancing 50

Gaertner v. Fiesta Dance Studios Ltd. 50

Lloyds Bank Ltd. v. Bundy 50

Schroeder Music Publishing v. Mccaulay 51

Osorio v. Cardona 51

15.0 Officiousness 51

Necessitous Intermeddling 52

Great Northern Railway v. Swaffield 52

Hastings v. Semans Village 52

Matheson v. Smiley 52

Re. Rhodes 52

Preservation of Property 53

Nicholson v. Chapman 53

Re. Pike 53

Sherrin v. Haggerty 53

Maccelsfield Corps. v. Great Central Railway 53

Preservation of Credit 53

Fulfillment of Another’s Duty 54

Self-Serving Intermeddling 54

Norton v. Haggett 54

Self-Serving Intermeddling (Law Profession) 54

Felton v. Finley 54

16.0 Compulsory Discharge 54

Moule v. Garrett 55

Legal Compulsion Arising at Common Law 55

Legal Compulsion Arising by Statute 55

Brook’s Wharf & Bull Wharf Ltd. v. Goodman Bros. 55

Peel (Regional Municipality) v. Ontario 55

Practical Compulsion 56

Harris v. Carnegie 56

Limitations of Recovery 56

Carleton (County) v. City of Ottawa 56

Owen v. Tate 56

Canada (Attorney General) v. Becker 57

Gifts 57

J.B.C. Consulting Inc. v. Gray 57

Remedies

17.0 Constructive Trusts & Equitable Liens 57

The Constructive Trust 57

English Law and Constructive Trust 58

Keech v. Sanford 58

Hussey v. Palmer 58

Canadian Use of Constructive Trust 58

Schobelt v. Barber 58

Petkus v. Becker 59

International Corona Resources Ltd. v. Lac Minerals Ltd. 59

Creditor in Invitum 59

Chase Manhattan Bank N.A. v. Israel-British Bank (London) Ltd. 60

Ellingsen (Trustee of) v. Hallmark Ford Sales Ltd. 60

Constructive Trust & Profit from Wrongdoing 60

Soulos v. Korkontzilas 60

Attorney-General for Hong Kong v. Reid 60

When does the Constructive Trust Arise 60

Rawluk v. Rawluk 61

The Equitable Lien 61

Glavasky v. Stadnick 61

International Corona Resources Ltd. v. Lac Minerals Ltd. 61

18.0 Equitable Compensation 62

Nocton v. Lord Ashburton 62

Guerin v. Canada 62

Hodgkinson v. Simms 62

Canson Enterprises Ltd. v. Boughton & Co. 62

Tort v. Equitable Compensation in a Fiduciary Relationship 63

Norberg v. Wynrib 63

M (K) v. M (H) 63

19.0 Tracing 63

Tracing at Law 63

Tracing at Law (Money) 63

Taylor v. Plummer 64

Banque Belge pour L’Etranger v. Hambrouke 64

Lipkin Gorman (a firm) v. Karpnale 64

Tracing in Equity 64

Re. Diplock 65

Chase Manhattan Bank N.A. v. Israel-British Bank (London) Ltd. 65

Lowest Intermediate Balance Rule 65

Clayton’s Case 65

Hallet’s Case 65

Re. Oatway 66

James Roscoe (Bolton) Ltd. v. Winder 66

Competing Beneficial Owners 66

Re. Walter J. Schmidt 66

Ontario Securities Com’n v. Greymac Credit Corp. 66

Law Society of Upper Canada v. T.D. Bank 66

20.0 Subrogation, Contribution, & Indemnity 67

Subrogation 67

Traders Realty Ltd. v. Huron Heights Shopping Plaza Ltd. 67

Banque Financiere de la Cite v. Parc (Battersea) Ltd. 67

Contribution 67

Whitham v. Bullock 68

Re. Wawanesa Insurance Co. 68

Spiers & Son Ltd. v. Troup 68

Schnurch v. Ploeger 68

Indemnity 68

Brook’s Wharf & Bull Wharf Ltd. v. Goodman Bros. 68

Carleton (County) v. City of Ottawa 69

Restitution at Common Law

Introduction

§  Under the ‘General Law of Obligations’, restitution fits in thus…

Common Law / Tort / Restitution
Promises ought to be kept / One ought not injure one’s neighbour / One ought not to be unjustly enriched at the expense of another
Source of the duty is from the parties / Source of duty is imposed by law / Like tort, duty is imposed by law (i.e. law says you may not be unjustly enriched at the expense of another)
Expectation interest being protected (distributive justice as opposed to corrective justice) / Reliance interest is protected (reverse of contract) / Also concerned with Reliance interests, but a particular type: reliance where the benefit has flowed into the defendant’s hands = restitution interest
Look to position of plaintiff to see what the expectation interest is / Again look to plaintiff to see to what degree the plaintiff has been harmed / Look to defendant to see how much the defendant has been benefited and it is this ‘benefit’ that the defendant has to disgorge back to the plaintiff

Historical Background

Restatement of the Law of Restitution: Underlying Principles

§  Two Americans, Scott & Seavey looked around at all the cases for a common thread to bring them all together, what they found, they labelled either ‘quasi-contract’ (common law) or ‘constructive trusts’ (equity) or together as ‘restitution’.

§  From this, they wrote the first definitive work called the “Restatement of Restitution” (1937), from which they set out 3 basic principles

1  A person unjustly enriched must make restitution to another

Ä  Implies there is a ‘benefit’ to the defendant (thus, identify what this is)

Ä  That the benefit has been conferred at the expense of the plaintiff, and

Ä  That it is ‘unjust’ for the defendant to retain that benefit gained at the expense of the plaintiff.

2.  A person who officiously (through assertion of authority or interference) confers a benefit upon another is not entitled to restitution (key is to identify officiousness)

3.  A person is not permitted to profit by his own wrongdoing at the expense of another.

English History of Restitution

§  Long ago, actions developed to recover assets lost to unjust enrichment (ex. law of conversion, covenant, debt, detinue, and account) were used in one court only: the Court of Common Pleas

§  At some point, the King’s Bench, in desiring to compete with the Court of Common Pleas for control of debt actions, starting taking on cases in ‘deceit’ from which developed two important principles:

1.  Assumpsit: literally meaning “an undertaking”

Ä  The defendant promised me something (assumpsit) and didn’t deliver, thus deceiving other party out of their property

Ä  Extended to permit the recover of benefits conferred by mistake, under compulsion or under a void K where the consideration had totally failed

2.  Indebitatus Assumpsit: “being indebted, he afterwards assumed”

Ä  Guy admits he owes the other money, and promises a second time to repay – a promise on a promise.

Slade’s Case (1602) England

Facts: Case on appeal to Exchequer

Held: The assembled judges decide that they will henceforth imply the promise of assumpsit.