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Unjust Enrichment in Law and Equity
Get PDFIn Moses v Macferlan, Lord Mansfield used money had and received, a common law money count, to provide relief in a case where an action’s outcome failed to align with the actor’s intention. In the First Restatement of Restitution, Warren Seavey and Austin Scott gathered together all cases, quasi-contractual and equitable, under the single principle that ‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other.’ These two influential acts of fusion between common law and equity have caused a great deal of confusion in the scholarship and jurisprudence on unjust enrichment. With the fundamental differences between quasi-contract and equitable unjust enrichment obscured, scholars and judges have struggled to find the single principle or core case that unifies liability in what is now called the law of unjust enrichment. I argue that we can resolve the puzzles of unjust enrichment by rejecting the fusionist claims that started them all – that is, by distinguishing cases of quasi-contract (the common law money counts) from cases of equitable unjust enrichment – and by recognizing that each has a distinctive normative foundation. Quasi-contract, like other common law doctrines, is grounded in respect for the freedom and equality of agents conceived as beings with the capacity for free choice. Quasi-contract is concerned with the objective significance of external acts like requests and agreements on terms; it is not concerned with the frustration of the plaintiff’s particular purpose in acting. Equitable unjust enrichment, like other equitable doctrines that attend to mistakes, expectations, and intentions, is grounded in concern for individual autonomy. It recognizes that a court, as a public institution attuned to law’s self-imposability, cannot enforce an alienation of property with indifference to the way in which it may fail as an expression of the individual’s purposes and reasons for action
Colonial Genocide in Intercultural and Interdisciplinary Perspective / Génocide colonial dans une perspective interculturelle et interdisciplinaire
Get PDFScholars from diverse cultural and disciplinary backgrounds have made recent contributions to debates about colonial genocide, conceptualizing this issue in widely divergent ways. Yet, most research syntheses regarding colonial genocide are over a decade old and therefore exclude influential research such as prominent government reports. This synthesis focuses on two themes: forms of genocide, and accountability mechanisms. Adopting a transnational approach, it incorporates three case studies – Canada, Namibia, and Rwanda – each differing in terms of its temporal relationships with colonial governments, forms of genocide, and accountability mechanisms.
This project compares debates about multiple forms of genocide in the case studies. Regarding Canada, research analyzes direct killings and sexual violence, starvation and displacement, cultural, institutional, and legal violence. Regarding Namibia, research analyzes the use of concentration camps and ‘scorched earth’ tactics plus a longer history of cultural genocide. Regarding Rwanda, research analyzes direct killings and sexual violence. By comparing debates about forms of genocide in each case study – particularly by looking beyond direct killings alone – this project analyzes how diverse scholars have engaged with multiple kinds of violence.
This project also compares debates about different approaches to accountability. For example, the TRC process in Canada and the Justice and Reconciliation process in Rwanda have taken different approaches to courts and trials. In Namibia, the pursuit by Indigenous peoples of the creation of accountability mechanisms remains stalled in discussions involving the German and Namibian governments. Comparing research into these mechanisms offers bases for considering different approaches to accountability
The Canada Disability Benefit: Battling Ableism in Design and Implementation
Get PDFThis article, written shortly after the framework legislation for the Canada Disability Benefit was introduced, discusses the key benefit design elements and options facing policymakers. We contrast these elements with the directional parameters set in the legislation. In the intervening months, the Government of Canada released an estimate of the annual costs of the new benefit and eventually drafted regulations that detail the actual design of the benefit in the Summer of 2024. These developments are outside the scope of this article, but the analysis in this article provides a foundation for other researchers and stakeholders to interpret and critique the costs and regulations that have now been released. This article describes several alternate policy choices that could have been made and situates the proposed Canada Disability Benefit amongst the other key federal and provincial programs for persons with disabilities
How the Dissent in Sharma Opens the Door to Indigenize the Section 15(1) Charter Analysis
Get PDFThis paper explores how the dissenting opinion in R. v. Sharma opens the door for Indigenizing the analysis under section 15(1) of the Canadian Charter of Rights and Freedoms. It considers how the dissenting opinion creates a pathway for strengthening Indigenous women’s rights under section 15(1) by expanding the range of impacts considered when assessing disadvantage in the equality analysis. It argues that in a case alleging a violation of Indigenous people’s section 15(1) rights, the courts can consider the impugned law’s impacts on Indigenous laws, including Indigenous people’s roles under those laws. Any interference with these roles should be recognized as a harm that reinforces, perpetuates and exacerbates the disadvantage of Indigenous peoples at the second stage of the section 15(1) Charter analysis. This paper (1) reviews the importance of recognizing Indigenous laws relating to Indigenous women when adjudicating Charter rights; (2) considers how the dissenting opinion facilitates recognition of Indigenous laws in the equality analysis; and (3) explores how the “constitutional imperative of reconciliation” can form a paramount consideration in future determinations of equality rights. The explicit recognition of the importance of reconciliation and the implicit acknowledgement of Indigenous laws by the dissenting judges form part of a developing trend of judicial engagement with these principles, and signals a potentially transformative development in equality rights jurisprudence. The distinct constitutional status of Indigenous peoples in Canada can be reflected through the meaningful consideration of Indigenous laws in the adjudication of section 15(1) Charter rights. In the case of Sharma where Indigenous women faced incarceration, Indigenous laws on the roles and responsibilities held by Indigenous women tell a different part of the story on how Canadian laws reinforce, perpetuate or exacerbate disadvantage – not only to the woman confronting removal from her family and community, but also to those around her. Engaging with these broader considerations allow for a more holistic analysis under section 15(1) of the Charter
A Lifeline During Custodial Interrogations? The Right to Counsel and Reflections on R. v. Dussault and R. v. Lafrance
Get PDFIn 2022, the Supreme Court of Canada issued two judgments with respect to the constitutional right to counsel: R. v. Dussault and R. v. Lafrance. This right is located in section 10(b) of the Canadian Charter of Rights and Freedoms. Specifically, both decisions concern an accused’s right to reconsult counsel in the context of custodial police interrogations. Further to earlier Supreme Court jurisprudence regarding an individual’s constitutional right to counsel, an accused is permitted to consult a lawyer prior to police questioning. Police must refrain from questioning the individual until that individual has had an opportunity to consult a lawyer. However, having consulted a lawyer, an accused is not entitled to have counsel present during questioning. Nevertheless, the Court has held that, in certain contexts, an accused may be permitted to reconsult counsel once an interrogation has commenced and where there is reason to question the detainee’s understanding of their rights. In Dussault and Lafrance, the Court rightly concluded that the two accused individuals were entitled to reconsult their lawyers after the interrogations commenced and police interrogators failed to provide them with this opportunity. While agreeing with the Court’s conclusions in these judgments, the author argues that these cases illustrate the importance of having a right to have counsel present during such interrogations. The right to reconsult counsel is contingent on police interrogators perceiving these changed circumstances, which many may be unwilling to see, particularly while in hot pursuit of a confession. The right to have a lawyer present would enable an accused to have access to advice in real time without having to rely on an interrogator to properly register such changed circumstances. In acknowledging a right to have counsel present, the Court would be recognizing a broader vision of counsel serving as a lifeline during custodial interrogations. The ability to have counsel present would require the Court to revisit its earlier jurisprudence from 2010, including the decisions in R. v. Sinclair and R. v. McCrimmon
Beyond the Numbers: Statistical and Data Literacy, Domain Literacy and Supreme Court of Canada Data Analytics
Get PDFThere is growing interest in using data analytics to identify patterns or trends in the work or behaviour of a court or judge. As more analytics-generated information about courts and judges is pumped into public discourse, questions arise about what it takes for stakeholders — both those producing or generating judicial analytics outputs, and those relying on and attempting to make sense of analytics outputs — to properly engage with that data. In this paper, we identify two related but distinct kinds of literacy required for meaningful and responsible engagement with judicial analytics outputs: (1) data and statistical literacy, that is, familiarity and facility with the basic concepts and methods required to effectively engage in (and with) quantitative research; and (2) domain literacy, which requires users to understand the unique features of the domain or area that an analytics output reflects in order to properly interpret that output with full regard for the nuances of context. Using data from and about the Supreme Court as a case study, we consider the ways that both types of literacy are essential to ensure that judicial analytics outputs further the public’s understanding of the judiciary rather than mislead, confuse or distract
A Pathway to World Law? International Solidarity as Key to Overcoming our Current Global Crises
No full textThis article analyzes the extent to which international solidarity is key to overcoming our current global crises; a goal that must be achieved in robust measure if humanity is to have a chance at successfully constructing the kind of deeply integrated world society that is a pre-condition for the emergence and global acceptance of world law properly so-called. In developing its argument, it devotes the first three sections to relatively in-depth explanations of three concepts that are key to an understanding of the issues at hand, namely: the identity and nature of our current global crises; the idea of world law; and the meaning of international solidarity. These foundational sections are followed by a discussion of why the fuller expression and enjoyment of international solidarity is key to overcoming our current global crises. Following this discussion, some obstacles that stand, or could stand, in the way of the fuller expression and enjoyment of international solidarity, and hence, the overcoming of our current global crises, are identified and examined. The focus then shifts to a discussion of some international solidarity “best practices” that have been deployed or could be deployed (both globally and in East Asia specifically) to ameliorate our current global crises, in part in the service of the (difficult) effort to build the kind of genuine world society without which world law cannot really exist. Thereafter, a précis of the main arguments of the article is offered, alongside some concluding thoughts
