Prof. Mitchell McInnes publishes new research on illegality and unjust enrichment

Article appears in the Canadian Business Law Journal

Staff - 25 November 2021

Professor Mitchell McInnes of the University of Alberta Faculty of Law has published a new article, titled "Illegality and Unjust Enrichment," in the Canadian Business Law Journal.

The paper's abstract states:

"Within private law, the defence of illegality has long been a source of confusion and injustice. The problems have been particularly acute within the law of unjust enrichment. The pendulum has swung from one extreme to another. During the 19th century, an unforgiving conception of illegality defeated restitutionary claims on the basis of relatively trivial improprieties. Under a ‘modern approach’, the availability of relief may turn on largely subjective notions of morality. A preferable model takes guidance from the notion of illegality that Justice McLachlin formulated in Hall v. Hebert. Although that case dealt with a tort claim, the proposition that the illegality defence should reflect the need ‘to preserve the integrity of the legal system’ can be applied equally throughout private law. In Kim v Choi, British Columbia's Court of Appeal recently demonstrated how that version of the defence can be used in unjust enrichment."