Consumers Glass Co. Ltd. v. Her Majesty the Queen in Right of Canada, [1988] 2 CTC 141

Cullen, J.: —No evidence was called. The parties hereto filed an agreed statement of facts as follows:

1. The plaintiff Consumers Glass Company Limited ("Consumers") is a corporation incorporated pursuant to the laws of Canada, and carries on business of the manufacture of glass with offices and facilities in the Province of Ontario and elsewhere.

2. In connection with its business, Consumers imports into Canada certain glass-making machinery parts, and has done so since the early 1960's. During the period from April 1979, to May 1983, the glass-making machinery parts imported by Consumers included items identified as blunt steel casings for bottle moulding machines, blowheads, funnels, guide plates, guide rings, thimbles, bronze castings, sleeves, baffle ring stock, take out tongs and holders (jaws), blanks and various other parts and attachments for glassmaking machinery (hereinafter collectively referred to as the "Parts").

3. In the course of entering the goods into Canada, Consumers attended at the customs house and therein rendered to the customs officer its completed customs documentation and entry forms in respect of which it paid customs duties. At the time of their entry into Canada, the aforementioned Parts were exempt from customs duties. However, Consumers paid the following customs duties in respect of the Parts during the period from April 1979, to May 1983:

4. Prior to April 1979, Consumers had been importing into Canada glassmaking machinery parts identical or similar in nature to the Parts on a duty- free basis by obtaining remission orders under Tariff Item 42700-1 of the statutory tariffs under section 17 of the Financial Administration Act. In addition, Consumers obtained a ruling from a Dominion customs appraiser in Hamilton on July 17, 1980, that such glass-making machinery parts were admissible duty-free under Tariff Item 42700-6. The said customs appraiser also ruled that such goods previously classified under Tariff Item 42700-1 as parts of glass-making machines were also admissible under Tariff Item 42700-6.

5. Tariff item 42700-6 is a specific provision applicable to glass-making machines, not including furnaces, and accessories, attachments, control equipment and tools for use therewith, and parts of the foregoing. The Parts could have been imported into Canada on a duty-free basis had they entered Canada under this Tariff classification, which came into effect on January 1, 1980. Alternatively, the Parts could have been imported into Canada under Tariff Item 42700-1, which would have permitted Consumers to apply for a retroactive remission order under the Machinery Program. Therefore, at the time of importation the Parts were not subject to the payment of customs duties, and no such duties were ever owing or payable by Consumers.

6. None of the Parts were imported under either of Tariff Items 42700-1 or 42700-6. When the Parts were imported Consumers or its agent paid customs duties in accordance with and in reliance upon tariff classifications accepted by customs officers acting on behalf of Her Majesty. Accordingly, Consumers mistakenly paid the customs duties or set out in paragraph 3

herein. It is agreed between the parties that for purposes of the trial of this action Consumers paid such duties as a result of a mistake of law, and not a mistake of fact.

7. The importation of the Parts was necessary for the maintenance of Consumers' equipment and machinery, without which it could not have continued to manufacture the glass products essential to its business. However, in this action Consumers does not allege that such duties were paid or extracted under practical or other compulsion, and Consumers by this agreement abandons any such claim or allegation referred to in its statement of claim.

8. Upon discovering that the Parts had been imported into Canada other than under Tariff Items 42700-1 or 42700-6, Consumers submitted written requests to a Dominion customs appraiser in the prescribed form for a redetermination or reappraisal of the tariff classification, pursuant to paragraph 46(2)(b) of the Customs Act and Customs Memorandum D-11-6-1, paragraph 6(a). As the result of these requests, Consumers obtained refunds of customs duties in the amount of approximately $100,000.

9. In respect of the requests for a redetermination which were denied by the Dominion customs appraiser, Consumers applied to the Deputy Minister, Revenue Canada, on or about May 8, 1984, for a redetermination of the tariff classification in accordance with paragraphs 46(1)(a) and 46(4)(d) of the Customs Act, and Regulations thereunder.

10. On or about July 16, 1984, the Deputy Minister acknowledged that the Parts should. have been classified by Consumers under Tariff Item 42700-6 and refunded to Consumers a further sum of approximately $90,000 representing the customs duties paid in error by Consumers in respect of the Parts. However, the Deputy Minister only refunded to Consumers the duties mistakenly paid in the two-year period preceding the date of the refund, from July 6, 1982, to July 6, 1984, as provided for in section 46 of the Act.

11. In total, therefore, of the $512,563.64 paid by Consumers which it did not by law have to pay in respect of the Parts, Consumers has received a refund of approximately $190,000 for which it properly applied within the provisions of the Act.

12. It is agreed between the parties that by virtue of the provisions of section 46 of the Act, the Deputy Minister did not have authority to redetermine the tariff classification for those goods in respect of which Consumers did not apply within two years of their importation, and therefore could not grant a refund of approximately $322,563.64.

13. The only issue between the parties to be determined by this Court is whether Consumers is entitled to a refund of the moneys paid by it in error, based on the principle of unjust enrichment.

Issue:

The issue to be decided is whether the plaintiff is entitled to a refund of $322,563.64, the balance of the moneys paid by it in error, on the basis of unjust enrichment. The resolution of this issue requires a determination of the following:

1. that moneys paid under mistake of law are recoverable pursuant to the retitutionary principle of unjust enrichment; and

2. that recovery by Consumers is not barred by the provisions of the Customs Act.

Special Note: I propose to make some general comments on the subjects of mistake of fact, mistake of law and the law of restitution before dealing with the Supreme Court of Canada's decision in Nepean Hydro Electric Commission v. Ontario Hydro, [1982] 1 S.C.R. 347. I recognize that the implications of the Nepean Hydro decision will have to be considered in regards to recovery of the payment made by the plaintiff before proceeding with any type of discussion of the principle of unjust enrichment. Very basically, the majority of the Supreme Court of Canada found that in absence of compulsion or an illegal transaction, the rule applicable on mutual mistake of law operates to deny recovery of moneys paid. In the case before me the parties have agreed that the customs duties were paid as a result of a mistake of law and that there was no compulsion.

Discussion:

The underlying principle governing recovery of benefits obtained by mistake was outlined by Carnwath, D.C.J. in Re Kasprzycki and Abel (1986), 55 O.R. (2d) 536 at 539:

It is a general principle in English and Canadian law that money paid by mistake, subject to certain exceptions, is generally recoverable. This principle had its beginnings in modern law in the case of Kelly v. Solari (1841), 9 M. & W. 54, 152 E.R. 24. The principle is based on the theory that money paid from a plaintiff to a defendant will be recoverable, if the payment was not "voluntary". Thus a payment made because the payer was mistaken and but for which the payment would not have been made has been described as a payment that is not “voluntary”. The payment is dealt with as if the payer had not truly intended to bestow a benefit upon the payee, to the effect that the payee has been unjustly enriched. This type of payment has been described in the case-law as a payment under mistake of fact.

A distinction has been made between a belief that is founded on a mistake as to the factual circumstances explaining the payment and one that is founded upon mistake as to the law that applies to those circumstances. As a general rule, payments made under a mistake of law alone, cannot be recovered by the payer while payments made under a mistake of fact can usually be recovered. In Nepean Hydro, supra, Estey, J. explained the basis for this distinction at page 412:

These authorities, both old and current, relating to the situation where mistake of law alone is present, are founded, in my respectful view, on good sense and practicality. Certainty in commerce and in public transactions such as we have here is an essential element of the well-being of the community. The narrower rule applicable to mistake of law as compared to that applicable to mistake of fact springs from the need for this security and the consequential freedom from disruptive undoing of past concluded transactions. Mistake of fact is, of course, limited to the parties and has no in rem consequences; hence the more generous view. In any event, nothing has been brought to light in the review of the law by the parties on this appeal to indicate any basis for the merging of the principles applicable to the categories of mistake, and indeed the wisdom enbodied in the authorities augurs for the maintenance of this ancient distinction.

However, various lines of cases have evolved which have managed to circumvent what has been described as the "harshness of the mistake of law rule”. In some instances, courts have chosen to classify the mistake as one of fact rather than law (see George (Porky) Jacobs Enterprises Ltd. v. Regina [1964] S.C.R. 326) or they have classified the mistake as a type of mistake of law which relates only to private rights rather than to the general law, i.e. the ordinary laws of the country (see Cooper v. Phibbs (1867), L.R. 2 H.L. 149). The Courts have also looked to the defendant's conduct in relation to the mistaken transaction (see Kiriri Cotton Co. Ltd. v. Dewani, [1960] A.C. 192, and the line of cases that grew out of Kiriri which seemed to establish that where the parties are not in pari delicto (on equal terms) money paid under a mistake of law may be recovered). Lord Denning made the following comments at page 204 of the Kiriri decision:

. . . The true proposition is that money paid under a mistake of law, by itself and without more, cannot be recovered back. James L.J. pointed that out in Rogers v. Ingham [(1867), 3 Ch. D. 351, 355]. If there is something more in addition to a mistake of law — if there is something in the defendant's conduct which shows that, of the two of them, he is the one primarily responsible for the mistake — then it may be recovered back. Thus, if as between the two of them the duty of observing the law is placed on the shoulders of the one rather than the other — it being imposed on him specially for the protection of the other — then they are not in pari delicto and the money can be recovered back;. see Browning v. Morris [(1778), 2 Cowp. 790, 792] by Lord Mansfield. Likewise, if the responsibility for the mistake lies more on the one than the other — because he has misled the other when he ought to know better — then again they are not in pari delicto and the money can be recovered back; see Harse v. Pearl Life Assurance Co. [[1940 1 K.B. 558, 564] by Romer L.J. These propositions are in full accord with the principles laid down by Lord Mansfield relating to the action for money had and received.

Dickson, J. (as he then was) at page 367 of his dissenting judgment in Nepean Hydro Electric Commission described the Kiriri principle as allowing a party to benefit from a protective statute “and to recover money paid under a mistake of law, where the law in question is a statute whose purpose is to protect his interests”.

Nepean Hydro Electric Commission v. Ontario Hydro, supra:

Although there are various arguments which can be raised to circumvent the “mistake of law rule" one still has to contend with the majority decision of the Supreme Court of Canada in Nepean Hydro which preserved the traditional distinction between recovery under mistake of law and mistake of fact. In this case the municipality of Nepean challenged billing charges by claiming that Ontario Hydro lacked statutory authority to demand payments. There was no legal, moral or other obligation to make the payments, however, Ontario Hydro exacted them and the municipality paid them by mistake.

Both the majority and minority decisions are worth reviewing as they contain an extensive analysis of the requirements for recovery of payments made under a mistake of law.

Majority decision: the majority agreed with the decision of the lower courts and held that there was no statutory authority to support the payment scheme and that the money had been paid under a mutual mistake of law. Estey, J., for the majority, made the following concluding comments at page 411:

Mistake of law “without more" and without “something more in addition” (in the words of Lord Denning in Kiriri, supra, at p. 204) may be an allusion to the need to find compulsion or illegality to introduce a right of recovery on the happening of mutual mistake of law. In compulsion, recovery is allowed as the payment is not made voluntarily and there is no reason to suppose, only because of the fact of payment, that the plaintiff had surrendered his right to recover his moneys paid under practical compulsion. In the case of illegal transactions, the concept of in pari delicto is introduced to determine entitlement to recovery. In the absence of either of these elements, the "something more in addition to a mistake of law”, supra, is missing, and the rule applicable on mutual mistake of law operates to deny recovery.

The law applicable to the transaction in this appeal is not that applicable to the recovery of payments made under duress or to the recovery of moneys paid under an illegal transaction, but rather the law applicable to the recovery of moneys paid under the mutual mistake of law occurring in the absence of either of the other two elements. Hence the rules for recovery applicable with respect to illegality and compulsion are not relevant. In such circumstances the exemptions relating to illegal transactions are not operable. The principle of mistake of law thus bars recovery of the moneys paid by the appellant.

At page 395-98 of his reasons, Estey, J. examined the principles outlined in the Kiriri case, where recovery might be possible where payment was made under a mistake of law, namely:

1) by the defendant's conduct he is the one primarily responsible for the mistake;

2) as between the two of them the duty of obeying the law is placed c on the shoulders of one rather than the other;

3) the duty of observing the law is imposed on the one for the protection of the other.

and then at p. 398 indicated that even assuming that the law was as it was enunciated in Kiriri, the appellant had not brought itself within the law and therefore the general principle of mistake applied. In fact, Estey, J. did not believe that the principles in Kiriri were applicable to the case before the Court and disposed of the case on other grounds. Estey, J. at page 400:

As noted above, the Judicial Committee of the Privy Council in Kiriri, supra, purported to find the root for the variation of the general law pertaining to the recovery of moneys paid under mistake of law in the judgments of Lord Mansfield from 1760 to 1780. These are the cases to which reference was made directly and indirectly: Smith v. Bromley (1760), 2 Doug. 696; 99 E.R. 441 (in notis); Browning v. Morris (1778), 2 Cowp. 790; 98 E.R. 1364; and Lawry and Another v. Bourdieu (1760), 2 Doug. 468; 99 E.R. 299. These judgments, however, concern the rule invoked in actions for the recovery of moneys paid under an illegal transaction.

He continued at page 407:

The appellant and the respondent had been participating in the pre- and post-1966 scheme as part of their respective operations under the Act. Each was mistaken as to the basis for the scheme under that statute. The principles of law pertaining to the rights of parties to illegal transactions has no application because these relate to transactions contrary to public policy or prohibited by statute. Such is, of course, not the case here. We are concerned with unauthorized acts and mutual mistake with respect thereto. The law of mutual mistake applies because in the circumstances such a mistake occurred. Any exception to the general rule barring recovery of moneys paid in an illegal transaction when the parties are not in pari delicto does not apply here because neither party has committed a delict and no wrongful conduct in the sense of actions contrary to statute or public policy has taken place.

Therefore, according to Estey, J., the principles applicable to mistake of law and illegality were separate and therefore a claimant who made a payment based on mistake of law (only) could not use the in pari delicto argument as it was only relevant in illegality of contract cases, not in cases where there was only a mutual mistake. However, Estey, J. did indicate that there are two situations where payments made under a mistake of law may be recoverable, namely:

1) payments made under compulsion as the payments were not voluntary;

and

2) payments which were illegal or contrary to statute on the ground that the parties were not in pari delicto.

In the Nepean Hydro case, Estey, J. found that neither of these situations existed and therefore the law of mutual mistake applied.

In the case before me the parties have agreed that payment of customs duties was not made under compulsion. Therefore, Estey, J.'s comments on page 408 would not be helpful to the plaintiff. In fact, Estey, J. made it clear that if the payments had been made under compulsion they would be recoverable whether or not there was a mistake of law. In essence, the presence of mistake of law in the compulsion situation would be irrelevant. (For another case dealing with the recoverability of a payment made under a mistake of law and under compulsion see Municipality of Peel v. Canada, [1987] 3 F.C. 103).

As mentioned earlier, the issue of whether moneys paid under a mistake of law were nevertheless recoverable on a specific fact situation was dealt with by Carnwath, D.C.J. in Re Kasprzycki and Abel, supra, Carnwath, D.C.]. found that the payments made by the tenant pursuant to an increase of rent declared void by. statute were paid under a mistake of law. However, these payments were recoverable because they were made pursuant to an illegal contract in which the parties were not in pari delicto. Carnwarth noted that the Landlord and Tenant Act was created for the protection of tenants and therefore the tenant fell within the class of persons designed to be protected per the Kiriri case.

Dickson, J.'s Dissent: Dickson, J. (as he then was), in his dissenting judgment, examined in great detail the many exceptions to the general principle that money paid under a mistake of law is not recoverable. Dickson, J. felt that the distinction between mistake of law and mistake of fact was meaningless and that money should be returned if on general principles of equity, it would be unjust to retain it. He noted in the case before the Court, that honesty and common justice required that the defendant repay the plaintiff. Dickson, J. made the following comments at page 365:

Finally, the most significant judicial development in the area of mistake of law is not an exception or qualification to the rule but rather the resurgence in English and Canadian jurisprudence of the doctrine of restitution or unjust (or unjustified) enrichment. The Fibrosa decision, and Lord Wright's reasons in particular, marked the "modern revival of restitution as a flexible and growing system" (Waddams, The Law of Contracts (1977), at p. 213, n. 6). Once a doctrine of restitution or unjust enrichment is recognized, the distinction as to mistake of law and mistake of fact becomes simply meaningless.

This Court has applied the doctrine of restitution or unjust enrichment in the case of the Corporation of the County of Carleton v. Corporation of the City of Ottawa, [1965] S.C.R. 663. In this case the County of Carleton had mistakenly paid for the maintenance of an indigent whose maintenance, pursuant to by-law and agreement, was properly the responsibility of the City of Ottawa. There was no discussion as to the existence of a mistake of law (responsibility under the by-law or the several agreements providing for social welfare) or a mistake of fact (the solicitor for the County of Carleton had. neglected to include this particular indigent in a list of welfare cases delivered to the City of Ottawa). The action was based and decided upon the doctrine of restitution. Citing Lord Wright's famous statement in the Fibrosa case Hall, J. held at p. 669 that:

The respondent [City of Ottawa] by the act and fact of annexation and by the terms of said Exhibit 11, para. 10 assumed responsibility for the social service obligations of the appellant [County of Carleton] to the residents of the area annexed, and. the fact that one welfare case was inadvertently omitted from the list cannot permit the respondent to escape the responsibility for that case. To paraphrase Lord Wright, it is against conscience that it should do so.

Therefore is there an alternative approach to "ignore" the existence of a mistake of law and decide the case on the basis of unjust enrichment? Although I tend to agree with Dickson, J. that once the doctrine of unjust enrichment is recognized this distinction between mistake of law and fact becomes meaningless, I still think that because the parties have agreed that the payment was made under a mistake of law, the issue has to be addressed in some way, especially given the Supreme Court of Canada's decision in Nepean Hydro, supra.

What is interesting to note and is of some significance is that Estey, J. in Nepean Hydro did not expressly disagree with the position of the minority regarding the principles of unjust enrichment. He did indicate at page 412 that the issue was not raised and commented at page 413 that,

Neither has the authority to "accumulate" surplus assets or resources. The concept of unjust enrichment is not easily associated with these relationships.

Unjust Enrichment:

The principle of unjust enrichment can be described at best as vague. A discussion of this principle usually begins with the English Court of Appeal decision in Brook's Wharf and Bull Wharf v. Goodman Brothers, [1937] 1 K.B. 534. In this case the plaintiff was allowed to recover customs duties it paid on furs which had been imported by the defendant. Lord Wright discussed the doctrine of restitution and indicated at page 545 that as between the plaintiff and the defendant the obligation did not arise out of contract but instead:

The obligation is imposed by the Court simply under the circumstances of the case and on what the Court decides is just and reasonable, having regard to the relationship of the parties.

As indicated earlier, this passage was quoted and applied by the Supreme Court of Canada in County of Carleton v. City of Ottawa, supra. A few years later Lord Wright made the following much-quoted observation in Fibrosa Spolka Akcyjna v. Fairbairn, Lawson Combe Barbour Ltd., [1943] A.C. 32 (H.L.) at 61:

It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution.

MacKinnon, J.A. in Nicholson v. St-Denis (1975), 8 O.R. (2d) 315; 57 D.L.R. (3d) 699 (Ont. C.A.), (leave to appeal to Supreme Court of Canada refused), at page 317 (D.L.R. 701) made some most insightful comments on Lord Wright's words and on the doctrine of unjust enrichment:

The trial Judge acknowledged that the words were extremely broad and general but he felt that the Court should not attempt to whittle them down. Counsel for the plaintiff took the position in this Court that these words really meant that it was totally dependent upon the individual Judge’s conscience as to whether he considered the circumstances such as to give rise to the remedy of unjust enrichment.

If this were a true statement of the doctrine then the unruly horse of public policy would be joined in the stable by a steed of even more unpredictable propensities. The law of unjust enrichment, which could more accurately be termed the doctrine of restitution, has developed to give a remedy where it would be unjust, under the circumstances, to allow a defendant to retain a benefit conferred on him by the plaintiff at the plaintiff's expense. That does not mean that restitution will follow every enrichment of one person and loss by another. Certain rules have evolved over the years to guide a Court in its determination as to whether the doctrine applies in any particular circumstance.

It is difficult to rationalize all the authorities on restitution and it would serve no useful purpose to make that attempt. It can be said, however, that in almost all of the cases the facts established that there was a special relationship between the parties, frequently contractual at the outset, which relationship would have made it unjust for the defendant to retain the benefit conferred on him by the plaintiff — a benefit, be it said, that was not conferred “officially”. This relationship in turn is usually, but not always, marked by two characteristics, firstly, knowledge of the benefit on the part of the defendant, and secondly, either an express or implied request by the defendant for the benefit, or acquiescence in its performance.

Therefore, MacKinnon, J.A. associated the following characteristics with the doctrine of restitution:

1) the existence of a special relationship between the parties, frequently contractual at the outset;

2) knowledge of the benefit on the part of the defendant;

3) either an express or implied request by the defendant for the benefit, or acquiescence in its performance.

In Nicholson, a contractor (plaintiff) made improvements to a building at the request of the occupant in possession under an agreement of purchase and sale. The contractor mistakenly believed the occupant was the owner. After the work had been completed, the occupant defaulted on his agreement and on the agreement of purchase and sale. The owner (defendant) retook possession and the contractor tried to recover the outstanding payments from the owner on the basis of unjust enrichment. The Court of Appeal found that the principle of unjust enrichment did not apply in this case. There was no agreement or relationship with the defendant who had neither encouraged the work nor had been guilty of any wrongdoing. Further, the plaintiff had taken no steps to ascertain the state of title or to secure his rights under the Mechanics’ Lien Act.

Muldoon, J. in McLaren v. The Queen, [1984] 2 F.C. 899, after MacKinnon, J.A. in Nicholson, described “special relationship” at page 905 in the following terms:

What is that special relationship? It may be contractual, fiduciary or matrimonial. It may be a very casual arrangement, or an unenforceable contract. It seems to be the sine qua non of success, but it is not an inevitable guarantee of success. A special relationship is a factor in all but two of the cases, cited here by counsel, in which the plaintiffs have succeeded. It is the essential nexus between the defendant's words and conduct, and the plaintiff's conferring of the benefit, in the following cases: [Muldoon, J. cited ten cases].

The claim of unjust enrichment has been made in other cases, and failed, where the court found no nexus between the parties. The cases cited here in this category are: Nicholson v. St. Denis (1975) SF DLR (3d) 699 (Ont. C.A.); Ledoux v. Inkman, [1976] 3 W.W.R. 430 (B.C. CA.); Norda Woodwork & Interiors v. Scotia Centre Ltd., [1980] 3 W.W.R. 748 (Alta. Q.B.).

Muldoon, J. found that in the absence of any special relationship, and on the evidence, the plaintiffs action based on unjust enrichment could not succeed. According to Muldoon, J. the salient factor in the case before him was the absence of any special relationship.

In McLaren, supra, a rancher, hereinafter referred to as the “occupant”, mortgaged his land in favour of the Industrial Development Bank and his interest was subsequently foreclosed. The Department of Indian and Northern Development acquired title. The occupant began legal proceedings to reclaim the land. The occupant was allowed to remain in adverse possession while the proceedings were in progress. It was during this period that the plaintiff supplied seed and services to plant the land. The plaintiff brought an action to recover the value of the seed and services from Her Majesty on the grounds of either agency of necessity or unjust enrichment.

Based on the above-noted cases, it would seem that in order to succeed in an action based on unjust enrichment, the plaintiff will first have to convince the Court that a special relationship existed between itself and the defendant. However, if the special relationship cannot be established, the case of Greenwood v. Bennett, [1972] 3 All E.R. 586 (C.A.) shows that an action in unjust enrichment can succeed without the existence of a special relationship. Based on the contents of the agreed statement of facts, I feel the Greenwood case can easily be distinguished and as Muldoon, J. indicated in McLaren at page 907:

That case [Greenwood] is an extension of the principle beyond the circumstances of special relationship. If it evinces the common law of Canada, which is highly doubtful, it nevertheless is not applicable to the circumstances of the case at bar.

It should be noted that the courts have approached the question of unjust enrichment from various premises. One does not seem limited in the way one chooses to deal with the issue.

In James More & Sons v. University of Ottawa (1974), 5 O.R. (2d) 162; 49 D.L.R. (3d) 666, Morden, J. at page 172 (D.L.R. 676) quoted from Goff and Jones, Law of Restitution (1966):

This principle [unjust enrichment] "presupposes three things: first, that the defendant has been enriched by the receipt of a benefit; secondly, that he has been so enriched at the plaintiff's expense; and thirdly, that it would be unjust to allow him to retain the benefit”.

Morden, J. applied the above-noted principles to the facts and found that the plaintiff was entitled to succeed in restitution, for the defendant would be unjustly enriched if he were permitted to retain the portion of the taxes paid by the plaintiff but not included in the contract price. The plaintiff, a building contractor, executed a construction contract with the University of Ottawa for the construction of a building. Under the terms of the contract a reduction in taxes imposed on building materials was to be passed on for the university's benefit. However, the contract was silent as to the allocation of tax increases. The provincial sales tax was removed but at the same time an additional federal tax was levied on building materials. By the terms of the contract, the contractor was required to pass on the reduction in provincial tax. However, he was still required to pay the additional federal tax. Under section 47A of the Excise Tax Act, the University applied for and received from the federal government a tax refund based on the added tax paid by the contractor. The claim for recovery of tax paid was made on the basis of unjust enrichment. Morden, J. made the following comments at page 172 (D.L.R. 676):

In my respectful view, the facts in this case clearly entitled the plaintiff to recover on the basis of restitution. Undoubtedly the defendant has been enriched by the receipt of a benefit — the $9,094.54. I said enriched because this payment puts it in a profit or windfall position. It is totally in excess of reimbursement. Secondly, this enrichment has been at the plaintiff's expense. Notionally the defendant has received and holds the plaintiff's money. Section 47A of the Excise Tax Act, by its express terms, requires as a condition precedent to the payment back of the tax that "the tax imposed by Part VI has been paid in respect of those materials”. The plaintiff paid this tax. But for this payment the defendant would not have received the moneys from the Government. It is taking direct advantage of the plaintiff's payment. In my view it is clearly unjust for the defendant to retain the benefit. The obligation which the law imposes on the defendant does not spring from the Excise Tax Act but from the principle of unjust enrichment.

On the other hand, Rouleau, J. in Canadian Institute of Mining & Metallurgy v. Canada, F.C.T.D., T-898-78, reasons for judgment dated April 11, 1985, unreported, noted at page 6 that in order to succeed in an action based on unjust enrichment, "the plaintiff must satisfy the Court that there is an enrichment on the part of the defendant, a resulting and connected loss to the plaintiff and the absence of legal justification for the enrichment of one at the expense of the other".

This case involved an action to recover moneys spent by the plaintiff between 1969 and 1975 and were in excess of the second class mail rate. During the years in question, the postmaster had determined that the lower rate, i.e. second class rate, did not apply to the plaintiff's periodicals. However, in 1975, the plaintiff convinced the postmaster that the second class rate applied to its periodicals. Rouleau, J. found that there was no contractual obligation between the parties on which the claim could be based. With respect to the unjust enrichment claim, he found that the third element required for unjust enrichment, namely the absence of legal justification, was not present in this case.

Lastly, we have Strayer, J.'s comment in Regional Municipality of Peel, supra, at page 117, "that the Deg/man case, County of Carleton case and the dissenting judgment in Nepean Hydro (the substance of which was not rejected by the majority, just thought to be unapplicable in that case) all indicate that in Canada there is now a more generalized and fundamental principle of redressing unjust enrichment which may go beyond its English origins and which informs [I think he meant "forms"] or should [in]form any particular judgment in this area”.

The Academic View:

Counsel for the plaintiff made the point that:

The opinion of the overwhelming majority of learned authors is that there is no justification for maintaining a distinction between mistake of fact, pursuant to which money is recoverable, and mistake of law and that such distinction is unsupportable. The distinction serves no useful purpose and commentators have been unable to find any real basis for its existence: Reference: Nepean, per Dickson J. at p. 210; Klippert, Unjust Enrichment, at p. 152; S.M. Waddams, The Law of Contracts (2nd ed. 1984) at p. 292.

J.R. Maurice Gautreau, Q.C. in a scholarly discourse entitled "The Renaissance of Restitution” delivered at Mont Ste-Marie on October 23, 1986 to the County of Carleton Law Association, stated in part:

Introduction

There is a renaissance occurring in the law of restitution in Canadian Courts. Whether it is uprooting an unjust enrichment or imposing a fiduciary duty, our Courts are showing a willingness and an assurance that is as warming as it is mature. It may be that we have entered a new era of equity, [emphasis added] This is welcome because the reign of absolutism in the fields of commerce and property has not left much room for considerations of fairness and good conscience. (For example Jirma Ltd. v. Mister Donut (1975) 1 S.C.R. 2 in contract and Murdock (1975) 1 S.C.R. 412 in property).

Basics

The law of restitution:

1. Is a distinct body of law, independant of tort and contract:

2. Is a law of general application and not one of particular instances; and

3. It has unjust enrichment as its basic rationale or primary principle.

It is of particular value because of its flexibility and adaptability; in addition, its technical requirements of proof are lighter and the remedies broader.

Restitution in General

An action founded in restitution is generically different from an action founded in tort or contract and is now recognized to fall within a third category of the common law which was once referred to as quasi-contract or implied contract but which is now properly called restitution or unjust enrichment. . . . The point here is that an action in restitution stands on its own and does not have to be bent into the shape of a quasi-contract or a quasi-trust.

The gist of such an action is obligation imposed by the ties of natural justice and equity. It is designed to prevent a person from retaining a profit or a benefit derived from another in circumstances where it offends one's sense of justice and conscience that the person should be permitted to retain it.

The categories of restitution are never closed. It is a law of general application and not one of particular instances so that we do not have to fit a claim into a slot marked "quantum meruit" or "money had and received”. . . .

Mr. Justice La Forest when he was on the New Brunswick Court of Appeal wrote the judgment of the court on restitution in White v. Central Trust Co. (1984), 7 D.L.R. (4th) 236. It is a broadly sculpted and scholarly judgment and very welcome because it illuminates and gives perspective to this field of law. He stated that the well recognized categories of unjust enrichment must be regarded as clear examples of the more general principle that transcends them. We are currently in a similar position with regard to unjust enrichment as we are in relation to negligence where we have for some time been abandoning recourse to particularized duties in favour of a generalized duty to one's neighbour. The principle of unjust enrichment was created by the law to meet situations of obvious injustice and is not to be frustrated by the technicalities of whether a particular transaction calling for restitution arises out of a contract or not. It transcends such distinctions.

Unjust Enrichment

Unjust enrichment in the usual case has three requirements:

(a) an enrichment;

(b) a corresponding deprivation, and

(c) the absence of any juristic reason for the enrichment. (Sorochan v. Sorochan (S.C.C. July 31, 1986, unreported).

The requirements are fairly obvious. The benefit and deprivation are simple questions of fact. The juristic reason justifying the retention of the benefit can be as simple as that a gift was intended or that there existed an obligation, contractual or otherwise, to give the benefit.

Flexibility

a

Flexibility is a key feature and value in the law of restitution or unjust enrichment. In Sorochan, supra, the Supreme Court repeated what it had said in Pettkus v. Becker, 1980, 2 S.C.R. 834 and 859:

The equitable principle on which the remedy of constructive trusts rests is broad and general; its purpose is to prevent unjust enrichment in whatever circumstances it occurs.

Recent Illustrations

The Sorochan and White v. Central Trust Co. cases are two good examples of modern Canadian approach [emphasis added]. They declare and demonstrate the flexibility and adaptability of restitutionary principles.

In White v. Central Trust Co., Mearle Smith claimed certain securities from his step-children which he had given to their mother and who, in turn, had given them to her children on her death under her Will. Mr. Smith claimed them as his own. He requested that they deliver them to him, which they did. One of the elements involved was the understanding by the children that they would inherit under his Will. When the children delivered the securities, they also executed a release to the mother's estate and to Mr. Smith as executor. When he died, the children were not beneficiaries under his Will. They sued in contract and for money had and received. The trial judge held that there was no contract and, moreover, they had signed a release.

The Court of Appeal was not as certain that there was no contract (the trial judge found a lack of necessary intent) but in any event dealt with the claim from the basis of unjust enrichment.

La Forest J.A. delivered the judgment of the court on the question of unjust enrichment. (Angers J.A. concurred, but delivered additional reasons dealing with the ineffectiveness of the release. He held that it released the mother's estate but did not extinguish the claim against Mr. Smith).

La Forest J.A. stated that the claim for restitution based on unjust enrichment does not depend on the existence or non-existence of a contract and went on to say:

. . . the principle of unjust enrichment was created by the law to meet situations of obvious injustice and it [is] not to be frustrated by the technicalities of whether a particular transaction calling for restitution arises out of a contract or not. It transcends such distinctions. Indeed the technical antecedents of restitution found in early common law causes of action straddled later classifications such as contract . . .

He further stated:

As I have tried to indicate the well recognized categories of unjust enrichment must be regarded as clear examples of the more general principle that transcends them. We are currently in a similar position with regard to unjust enrichment as we are in relation to negligence where we have for some time been abandoning recourse to particularized duties in favour of a generalized duty to one’s neighbour, although the process has not yet proceeded as far in the case of restitution.

The facts of the case in White bore similarities to previously recognized unjust enrichment categories but it did not fit squarely into any of them. This would not defeat the claim.

It is clear from the judgment of the Supreme Court of Canada in Sorochan, supra, that technical rules have no stature in situations of unjust enrichment and that the principles involved are broad, general and flexible.

Conclusions:

The First Issue:

My conclusion on the issue is that the law in Canada is moving toward a revival of or a stronger emphasis on the law of restitution on the basis of unjust enrichment. Unjust enrichment offends one's acceptance of that which is right and proper. The law of restitution “is of particular value because of its flexibility and adaptability, and in addition its technical requirements of proof are lighter and the remedies broader": Gautreau, supra. It meets Lord Wright's convictions in Fibrosa, supra.

It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep.

There is no question that the doctrine of unjust enrichment is firmly entrenched and accepted in Canadian law. See: Fibrosa Spolka Akcyina v. Fairbairn, Lawson Combe Barbour Limited, [1943] A.C. 32 (H.L.); Deglman v. Guaranty Trust Co. of Canada et al., [1943] 3 D.L.R. 785 (S.C.C.) at pp. 794-95; County of Carleton v. City of Ottawa (1965), 52 D.L.R. (2d) 220 (S.C.C.) at pp. 224-25, [1965] S.C.R. 663; Pettkus v. Becker (1980), 117 D.L.R. (3d) 257 (S.C.C.) at pp. 273-75; White et al. v. Central Trust Co. et al. (1984), 7 D.L.R. (4th) 236 (N.B.C.A.) at pp. 241-47.

Not to recognize the law of restitution based on unjust enrichment is to ignore equity and equitable remedies. I believe the law of England is much stricter than the laws of Canada on this point, but it is to the credit of Canadian jurisprudence that recognition has been given to this equitable solution.

I would be more wary of the conclusion had Estey, J. rejected out of hand the dissent in the Nepean case, supra. However, his comments are worth repeating here:

Since writing the foregoing I have had the opportunity of reading the reasons of my colleague Dickson J. The thrust of the appellant's submission was centred on the question as to whether the parties to the mistake of law were in pari delicto. Unjust enrichment is mentioned in its factum only with reference to the argument that the appellant and the respondent were not in pari delicto. In the course of argument the appellant, in response to a question from the Court, stated that it was not urging and not founding its appeal on the abolition of the distinction in law between mistake of fact and mistake of law. Indeed, the rule was accepted, and the application sought in the appellant's argument was that said to have been followed by this Court in Eadie v. The Township of Brantford, supra. Accordingly my considerations have been confined to the operation of the doctrine of mistake of law as argued.

Before Nepean, the Supreme Court of Canada had recognized in Carleton, supra, the right to recover moneys paid under mistake on the basis ofunjust enrichment, and while Carleton involved a mistake of fact, the basis for recovery rested solely on the grounds of unjust enrichment.

The strong dissenting opinion in Nepean called a tour de force by one author, was not rejected by the majority decision and provides a solid basis for the relief sought here.

Accordingly, the plaintiff is entitled to recover the remaining moneys, namely $322,563.64 duties mistakenly paid by the plaintiff, plus interest.

The Second Issue:

ls recovery barred by the provision of section 46 of the Customs Act. Section 46 provides a method for reappraisal or redetermination of a custom officer’s decision, and provides for an ultimate appeal to the Deputy Minister, following which an appeal to the Federal Court regarding the law is possible. Here of course we have no disagreement — all admit a mistake was made and an overpayment of duties resulted.

This section provides an administrative scheme, showing the approach that must be taken to effect a recovery from the Department. It does not prohibit or preclude an action based on unjust enrichment. Should Parliament have intended to remove that basic right to a court action, then it should specifically provide for it in the legislation. Because action in the courts is not prohibited, the plaintiff is entitled to bring this action.

The plaintiff is entitled to its costs of this action.

Appeal allowed.