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Lloyd's Maritime and Commercial Law Quarterly


Mitchell McInnes *


The highlight of the past year in Canadian unjust enrichment law was the Supreme Court of Canada’s decision in Moore v Sweet 2018 SCC 52. In addition to introducing a novel perspective on the juristic reasons for restitution, the majority extended the scope of interceptive subtraction and lowered the threshold for proprietary restitution.


1. Acadian Marine and Diving Ltd v Highfield Construction Co1

Subcontract—negligent misrepresentation—unjust enrichment

Parks Canada owned a bridge that required repairs. It issued a call for tenders that described the nature and extent of the project. Highfield Construction submitted the winning bid and subcontracted much of the work to the plaintiff. Once it entered the worksite, the plaintiff discovered that it had substantially underbid. The job required far more work and expense that the tender documents had indicated. After completing the project, the plaintiff sued the owner for unjust enrichment; Parks Canada applied to have the claim struck.
Decision: Application denied.
Held: It was not plain and obvious that the restitutionary claim would fail. “The first two elements” of the action in unjust enrichment “are clearly in evidence in that Parks Canada as owner … has received the additional labour and materials supplied” (at [24]). Parks Canada argues that its contract with Highfield Construction constitutes a juristic reason for any benefit that it received from the plaintiff, but that is not true. “The expectation of all of the parties … was that there was a certain degree of damage to the piers which needed to be repaired. Parks Canada as owner and the entity with the specific knowledge of its property made representations in the tender package which were relied upon by Highfield” and the plaintiff (at [25]). The plaintiff alleges that those representations were negligent. Assuming that to be true, “there is no juristic reason for Parks Canada having received additional services and labour because of its very own negligent misrepresentation. The extra work performed … is not within the scope of the contract between Parks Canada and Highfield nor between Highfield and [the plaintiff]” (at [30]).


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