What is the test for unjust enrichment under an ultra vires statute?
Canada (Federal), Canada
The following excerpt is from Anglehart v. Canada, 2016 FC 1159 (CanLII), [2017] 2 FCR 74:
With regard to the first element, it seems that if the plaintiff’s loss is passed on to others, there can be no unjust enrichment (see Justice La Forest’s analysis of tax paid under an ultra vires statute in Air Canada v. British Columbia 1989 CanLII 95 (SCC), [1989] 1 SCR 1161). However, as regards the second element, if the defendant’s enrichment has benefited third parties, there could exist unjust enrichment and it is in analyzing the third element that the court will decide, by scrutinizing the whole of the parties conduct (see the analysis of a penalty paid and subsequently claimed, contrary to the provisions of the Criminal Code in Garland).
That said, the first two elements involve a straightforward economic approach and the analysis of the third element is often the most important; “It is at this stage that the court must consider whether the enrichment and detriment, morally neutral in themselves, are ‘unjust’” (Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 SCR 980, page 990).
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