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Papers by Mitchell McInnes
Encyclopedia of the First Amendment, Mar 6, 2014
Re-examining Contract and Unjust Enrichment, 2007
This chapter briefly examines the English conception of unjust enrichment and its relationship to... more This chapter briefly examines the English conception of unjust enrichment and its relationship to the law of contract. The unjust enrichment phrase refers to the modern re-formulation of a variety of claims that historically reversed unwarranted transfers. The chapter considers the same issues from a Canadian perspective, both before and after the seminal decision in Garland v. Consumers' Gas Co . It also addresses some of the problems created by Canada's novel test of restitutionary liability, with a special focus on difficulties arising at the intersection between unjust enrichment and contract. The modern law of unjust enrichment in Canada is both confused and confusing. The source of the problems lies largely with the Supreme Court of Canada, which has, in the past quarter century, delivered a series of misleading and inconsistent judgments. Keywords: Anglo-Canadian Law; law of contract; law of unjust enrichment
University of Toronto Press eBooks, Dec 31, 2022
A man witnesses a canoeist drowning a short distance from the shore.2 For over forty minutes the ... more A man witnesses a canoeist drowning a short distance from the shore.2 For over forty minutes the tenants of an apartment complex listen to the tortured screams of a woman being murdered in the streets below.3 A handful of railway employees watch a boy bleed to death for want of medical attention after he was struck by a passing car.4 The owner of a pleasure craft learns that one of his passengers has fallen overboard into an icy lake.\u27 An innocent party to a motor vehicle accident finds that the driver at fault was injured as a result of the mishap.6 In each of these examples the first mentioned party (or parties) could have safely rendered assistance to the helpless victim. The aim of the present discussion is to show that there ought to be a legal obligation to do so in Canadian tort law
Psychiatry, Psychology and Law, 1994
Nicholas Mullany and Peter Handford, Tort liability for psychiatric damage, Law Book Company, Syd... more Nicholas Mullany and Peter Handford, Tort liability for psychiatric damage, Law Book Company, Sydney, 1993 — 333 pp. A95,A 95, A95,NZ 131
Les Cahiers de droit, 1995
Le présent article porte sur les clercs et leur rôle à la Cour suprême du Canada. Le but est de r... more Le présent article porte sur les clercs et leur rôle à la Cour suprême du Canada. Le but est de renseigner les clercs éventuels sur la nature du poste et de permettre à tous de mieux comprendre le fonctionnement du processus judiciaire à ce niveau. Les auteurs commencent par étudier l'histoire du programme de clercs à la Cour suprême. Bien que les fonctions du clerc aient peu changé depuis la création du poste en 1968, le programme a évolué au même rythme que la Cour. Les auteurs traitent ensuite du programme de clercs actuel. Ils décrivent d'abord le processus de sélection. En s'inspirant d'un questionnaire envoyé aux clercs des années 1991 à 1993, les auteurs tentent également d'établir, de façon générale, le profil des personnes qui ont été employées par la Cour au cours des dernières années. L'article inclut ensuite une description des tâches. Bien que cette catégorie de personnel assume de nombreuses responsabilités, les auteurs réfutent les critiques ha...
Carswell Legal Pubns (2009), Jun 30, 2009
University of Toronto Law Journal, 2002
Research Handbook on Unjust Enrichment and Restitution
In a number of recent cases, courts have considered the "gendered earnings" proposal wh... more In a number of recent cases, courts have considered the "gendered earnings" proposal which quantifies compensation for female plaintiffs on the basis of male income statistics. In essence, that proposal turns on the perceived injustice of awarding damages that are based on female income statistics and that consequently replicate societal inequities that discriminatorily depress female income levels. This paper examines the benefits and dangers inherent in the "gendered earnings" proposal.
In negligence law, conventional wisdom holds that it is for the plaintiff to prove on a balance o... more In negligence law, conventional wisdom holds that it is for the plaintiff to prove on a balance of probabilities that his loss or injury resulted from the defendant's actions. Typically this is satisfied by showing that "but for" those actions, the accident would not have occurred,' although the less stringent "substantial factor" test is used where multiple causes underlie the complaint. 2 Evidentiary gaps, however, may render that task difficult, if not impossible, to fulfil. Mindful of that fact, the courts have on occasion fashioned anomalous rules which remove the usual onus from the plaintiff. The best known example of this, the so-called "McGhee principle", 3 has been widely accepted and frequently invoked in Canadian tort law. Now, 16 years after its birth, it appears that the principle may have been misconceived. The unanimous opinion of the House of * This Case Comment by Mitchell Mclnnes was recently published in 47 Advocate (Van.), No. 5 (September, 1989), pp. 759-64, and is reprinted with permission of the author and editor.
Beginning with its momentous decision in Pavey & Matthews Pty Ltd v Paul,' the High Court has acc... more Beginning with its momentous decision in Pavey & Matthews Pty Ltd v Paul,' the High Court has accepted that the concept of unjust enrichment underlies the law of restitution. 2 That concept commonly is said to be comprised of four elements: (i) an enrichment to the defendant, (ii) received at the plaintiffs expense, (iii) acquired as the result of an unjust factor, (iv) in the absence of circumstances supporting a defence. Those elements are not analysed with equal regularity in the case law. Difficulties occasionally arise with respect to the first element, given the diverse nature of wealth and the relative novelty of the concept of unjust enrichment, and the courts have yet to determine conclusively which benefits count for the purposes of the law of restitution. 3 The third element is examined more frequently, indeed, in many instances, the existence or non-existence of a recognised unjust factor is the only contentious issue in a restitutionary action. 4
UCL logo UCL Discovery. ...
Boston University Law Review, 2012
INTRODUCTIONThe Restatement of Restitution: Quasi Contracts and Constructive Trusts1 had a profou... more INTRODUCTIONThe Restatement of Restitution: Quasi Contracts and Constructive Trusts1 had a profound impact not only in the United States but also throughout what used to be known as the British Commonwealth.2 The project's success at home was to be expected, of course. Its impact abroad was more remarkable. Academics - and those of an academic bent3 - responded quickly and enthusiastically in both England4 and Canada.5 Bar and bench, however, proved less welcoming. It fell to Lord Denning, fifteen years after the fact, to explain why English law (and, by extension, Canadian law, which had yet to strike an independent path) was "obviously not a favourable soil in which to plant the Restatement."6 The very idea of a Restatement, he observed, was fundamentally at odds with the English legal tradition.7 The law is to be found in the cases and not in broad, bold-fonted principles.8 And whereas a textbook might helpfully serve as "a guide to the authorities but not to t...
Encyclopedia of the First Amendment, Mar 6, 2014
Re-examining Contract and Unjust Enrichment, 2007
This chapter briefly examines the English conception of unjust enrichment and its relationship to... more This chapter briefly examines the English conception of unjust enrichment and its relationship to the law of contract. The unjust enrichment phrase refers to the modern re-formulation of a variety of claims that historically reversed unwarranted transfers. The chapter considers the same issues from a Canadian perspective, both before and after the seminal decision in Garland v. Consumers' Gas Co . It also addresses some of the problems created by Canada's novel test of restitutionary liability, with a special focus on difficulties arising at the intersection between unjust enrichment and contract. The modern law of unjust enrichment in Canada is both confused and confusing. The source of the problems lies largely with the Supreme Court of Canada, which has, in the past quarter century, delivered a series of misleading and inconsistent judgments. Keywords: Anglo-Canadian Law; law of contract; law of unjust enrichment
University of Toronto Press eBooks, Dec 31, 2022
A man witnesses a canoeist drowning a short distance from the shore.2 For over forty minutes the ... more A man witnesses a canoeist drowning a short distance from the shore.2 For over forty minutes the tenants of an apartment complex listen to the tortured screams of a woman being murdered in the streets below.3 A handful of railway employees watch a boy bleed to death for want of medical attention after he was struck by a passing car.4 The owner of a pleasure craft learns that one of his passengers has fallen overboard into an icy lake.\u27 An innocent party to a motor vehicle accident finds that the driver at fault was injured as a result of the mishap.6 In each of these examples the first mentioned party (or parties) could have safely rendered assistance to the helpless victim. The aim of the present discussion is to show that there ought to be a legal obligation to do so in Canadian tort law
Psychiatry, Psychology and Law, 1994
Nicholas Mullany and Peter Handford, Tort liability for psychiatric damage, Law Book Company, Syd... more Nicholas Mullany and Peter Handford, Tort liability for psychiatric damage, Law Book Company, Sydney, 1993 — 333 pp. A95,A 95, A95,NZ 131
Les Cahiers de droit, 1995
Le présent article porte sur les clercs et leur rôle à la Cour suprême du Canada. Le but est de r... more Le présent article porte sur les clercs et leur rôle à la Cour suprême du Canada. Le but est de renseigner les clercs éventuels sur la nature du poste et de permettre à tous de mieux comprendre le fonctionnement du processus judiciaire à ce niveau. Les auteurs commencent par étudier l'histoire du programme de clercs à la Cour suprême. Bien que les fonctions du clerc aient peu changé depuis la création du poste en 1968, le programme a évolué au même rythme que la Cour. Les auteurs traitent ensuite du programme de clercs actuel. Ils décrivent d'abord le processus de sélection. En s'inspirant d'un questionnaire envoyé aux clercs des années 1991 à 1993, les auteurs tentent également d'établir, de façon générale, le profil des personnes qui ont été employées par la Cour au cours des dernières années. L'article inclut ensuite une description des tâches. Bien que cette catégorie de personnel assume de nombreuses responsabilités, les auteurs réfutent les critiques ha...
Carswell Legal Pubns (2009), Jun 30, 2009
University of Toronto Law Journal, 2002
Research Handbook on Unjust Enrichment and Restitution
In a number of recent cases, courts have considered the "gendered earnings" proposal wh... more In a number of recent cases, courts have considered the "gendered earnings" proposal which quantifies compensation for female plaintiffs on the basis of male income statistics. In essence, that proposal turns on the perceived injustice of awarding damages that are based on female income statistics and that consequently replicate societal inequities that discriminatorily depress female income levels. This paper examines the benefits and dangers inherent in the "gendered earnings" proposal.
In negligence law, conventional wisdom holds that it is for the plaintiff to prove on a balance o... more In negligence law, conventional wisdom holds that it is for the plaintiff to prove on a balance of probabilities that his loss or injury resulted from the defendant's actions. Typically this is satisfied by showing that "but for" those actions, the accident would not have occurred,' although the less stringent "substantial factor" test is used where multiple causes underlie the complaint. 2 Evidentiary gaps, however, may render that task difficult, if not impossible, to fulfil. Mindful of that fact, the courts have on occasion fashioned anomalous rules which remove the usual onus from the plaintiff. The best known example of this, the so-called "McGhee principle", 3 has been widely accepted and frequently invoked in Canadian tort law. Now, 16 years after its birth, it appears that the principle may have been misconceived. The unanimous opinion of the House of * This Case Comment by Mitchell Mclnnes was recently published in 47 Advocate (Van.), No. 5 (September, 1989), pp. 759-64, and is reprinted with permission of the author and editor.
Beginning with its momentous decision in Pavey & Matthews Pty Ltd v Paul,' the High Court has acc... more Beginning with its momentous decision in Pavey & Matthews Pty Ltd v Paul,' the High Court has accepted that the concept of unjust enrichment underlies the law of restitution. 2 That concept commonly is said to be comprised of four elements: (i) an enrichment to the defendant, (ii) received at the plaintiffs expense, (iii) acquired as the result of an unjust factor, (iv) in the absence of circumstances supporting a defence. Those elements are not analysed with equal regularity in the case law. Difficulties occasionally arise with respect to the first element, given the diverse nature of wealth and the relative novelty of the concept of unjust enrichment, and the courts have yet to determine conclusively which benefits count for the purposes of the law of restitution. 3 The third element is examined more frequently, indeed, in many instances, the existence or non-existence of a recognised unjust factor is the only contentious issue in a restitutionary action. 4
UCL logo UCL Discovery. ...
Boston University Law Review, 2012
INTRODUCTIONThe Restatement of Restitution: Quasi Contracts and Constructive Trusts1 had a profou... more INTRODUCTIONThe Restatement of Restitution: Quasi Contracts and Constructive Trusts1 had a profound impact not only in the United States but also throughout what used to be known as the British Commonwealth.2 The project's success at home was to be expected, of course. Its impact abroad was more remarkable. Academics - and those of an academic bent3 - responded quickly and enthusiastically in both England4 and Canada.5 Bar and bench, however, proved less welcoming. It fell to Lord Denning, fifteen years after the fact, to explain why English law (and, by extension, Canadian law, which had yet to strike an independent path) was "obviously not a favourable soil in which to plant the Restatement."6 The very idea of a Restatement, he observed, was fundamentally at odds with the English legal tradition.7 The law is to be found in the cases and not in broad, bold-fonted principles.8 And whereas a textbook might helpfully serve as "a guide to the authorities but not to t...