Another Canadian appellate court has furthered the fallacy that the cause of action to reverse an unjust enrichment is a claim in equity.  It did so in the context of an issue raised by the court itself rather than by the parties [para. 3].  The case is Grover v. Hodgins, 2011 ONCA 72 (CanLII), available at: http://www.canlii.org/en/on/onca/doc/2011/2011onca72/2011onca72.html

Usually there are no practical consequences to whether the claim is understood as being at common law or in equity.  But in this case it mattered, since the court hearing the claim was the Small Claims Court.  Under s. 96 of the Courts of Justice Act, that court cannot grant equitable relief.  On appeal, the Court of Appeal for Ontario, undeterred, comes up with an analysis of that restriction that allows that court to grant equitable relief in certain situations.

The correct answer would be to hold that the claim was in no way equitable and the remedy being sought did not involve equitable relief.  It was a common law claim and so squarely within the jurisdiction of the Small Claims Court.  The court mentions one case that arrives at this correct result but does not follow its simple approach [para. 19].

Perhaps more worrying, the court does not grapple with the constitutional issues relating to the subject-matter jurisdiction of the Small Claims Court.  I am not a constitutional law scholar, but I understand the argument to be that to be able to grant equitable remedies such as an injunction, a judge has to be federally appointed so as to have the power to do so under s. 96 of the Constitution Act 1867.  The judges of the Small Claims Court are provincially, not federally, appointed, and arguably that explains the statutory limit on their subject matter jurisdiction.

As something of an anticlimax, the Court of Appeal then finds that the unjust enrichment claim fails.

Stephen

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Dr. Stephen G.A. Pitel
Associate Professor 
Goodmans LLP Faculty Fellow in Legal Ethics 2010-11
Faculty of Law, The University of Western Ontario