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Improperly Collected Taxes: The Border Between Private and Public Law
Published online by Cambridge University Press: 20 July 2015
Extract
In recent years, Professor Birks’ doctrine of constitutional right to restitution has become a new normative rule with respect to the issue of restitution of improperly collected taxes. Nevertheless, the new doctrine has puzzled academic scholars. Profound questions regarding the conceptual “private law-public law” location of Professor Birks’ doctrine and the current status of traditional law doctrines have arisen.
This study challenges Professor Birks’ doctrine and demonstrates that despite its universal adoption, the doctrine was based on weak premises. Furthermore, based on Professor Weinrib’s legal philosophy, this study develops an alternative framework to analyze the issue of improperly collected taxes. The study shows that the “private-public” puzzle and the doctrines traditional to improperly collected taxes may be coherently explained within this legal philosophy.
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- Research Article
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- Copyright © Canadian Journal of Law and Jurisprudence 2010
References
I am greatly indebted to Professor Ernest J. Weinrib for supervising my research and writing.
1. Birks, Peter,” Restitution from the Executive: A Tercentenary Footnote to the Bill of Rights” in Finn, Paul D., ed., Essays on Restitution (Perth, W.A: Law Book Company, 1990) 164 Google Scholar [Birks,”Restitution from the Executive”].
2. I had genuine hesitation in choosing the appropriate term for defining the legal issue presented in this study. In legal literature this issue is usually called: “illegally collected taxes,” “ultra vires taxes,” “unconstitutional taxes,” “unauthorized taxes,” or “improperly collected taxes.” I will revisit the details of this terminological notion in Part I, Section A of this study.
3. Woolwich Equitable Building Society v. Inland Revenue Commissioners, [1993] AC. 70, [1992] 3 All E.R 737 Google ScholarPubMed, (H.L.) at 175-177 (Lord Goff of Chieveley) [Woolwich].
4. CA. 1761/02 The Authority of Antiquities v. The Operators of Stations Ltd. [2006]Google Scholar (not published available in Hebrew at: http://elyon1.court.gov.il/files/02/610/017/G19/02017610.g19.pdf) [The Authority of Antiquities].
5. Kingstreet Investments Ltd. v. New Brunswick, [2007] 1 S.C.R 3 at 18, 21Google Scholar [Kingstreet].
6. For foundational studies on this legal philosophy see Weinrib, Ernest J., The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995)Google Scholar [Weinrib, The Idea of Private Law]; Weinrib, Ernest J., “Contemporary Legal Scholarship: Achievements and Prospects: Tort Law: Correlativity, Personality, and the Emerging Consensus on Corrective Justice” (2001) 2 Theor. Inq. L. 107 Google Scholar [Weinrib, “Correlativity, Personality, and the Emerging Consensus on Corrective Justice”]; see also: Benson, Peter, “Corrective Justice and Formalism: The Care One Owes One’s Neighbors: The Basis of Corrective Justice and Its Relation to Distributive Justice” (1992) 77 Iowa L. Rev. 515.Google Scholar Except a minor conceptual clarification that will be discussed this study adopts Weinrib’s legal philosophy and its treatment of the private-public division.
7. See, for example: Woolwich, supra note 3 at 175-77 (Lord Goff of Chieveley); Burrows, Andrew, The Law of Restitution, 2nd ed. (Croydon, UK: Butterworths LexisNexis, 2002) at 443–44 Google Scholar [Burrows, The Law of Restitution]; Maddaugh, Peter D. & McCamus, John D., The Law of Restitution, loose leaf ed. (Aurora, ON: Canada Law Book, August 2007) at 22:300.20 (22.15); 22:300.50 (22.24, 22.28-22.29)Google Scholar [Maddaugh & McCamus]; Hogg, Peter, “Recovery of Unauthorized Taxes: A New Constitutional Right” (2008) 46 Can. Bus. L. J. 5 at 8.Google Scholar
8. For a survey of the possibilities for constitutional judicial review in common law countries see Waldron, Jeremy, “The Core of the Case Against Judicial Review” (2006) 115 Yale L. J. 1346 at 1354-59CrossRefGoogle Scholar [Waldron, “The Core of the Case Against Judicial Review”].
9. For the full list of categories recognized at common law see Woolwich, supra note 3 at 164-65.
10. Birks, “Restitution from the Executive,” supra note 1 at 166.
11. See, for example: Burrows, Andrew, “Public Authorities, Ultra Vires and Restitution” in Burrows, Andrew, ed., Essays on the Law of Restitution (New York: Oxford University Press, 1991) at 41–55 Google Scholar [Burrows, “Public Authorities, Ultra Vires and Restitution”].
12. Bachand, Frederic “Restitution of Unlawfully Levied Taxes: Survey and Comparative Analysis of Developments in Canada, Australia and England” (2001) 38 Alberta L. Rev. 960 at 967-68Google Scholar [Bachand “Restitution of Unlawfully Levied Taxes”]. It should be noted that common law courts adopted a number of minor exceptions to the abovementioned rule that will not be discussed in this study. For the full index of instances where common law jurisdictions have excepted resti-tutionary claims in cases of mistake of law see McCamus, John D., “Restitutionary Recovery of Monies Paid to a Public Authority Under a Mistake of Law: Ignorantia Juris in the Supreme Court of Canada” (1983) 17 U.B.C. L. Rev. 233 at 239-45Google Scholar [McCamus, “Restitutionary Recovery”].
13. Bilbie v. Lumley [1802] 2 East 469.
14. Kelly v. Solari (1841), 9 M. & W. 54, 152 E.R 24.
15. See Kleinwort Benson Ltd v. Lincoln City Council [1999] 2 A.C. 349 Google Scholar, (H.L.) at 370-372 [Kleinwort]; Virgo, Graham, The Principles of the Law of Restitution, 2nd ed. (New York: Oxford University Press, 2006) at 143 CrossRefGoogle Scholar [Virgo]; McCamus, “Restitutionary Recovery,” supra note 12 at 236.
16. McCamus, ibid. at 236.
17. See Air Canada v. British Columbia [1989] 1 S.C.R. 1161 at 1197-1198Google Scholar [Air Canada] (Canada); David Securities Pty. Ltd. v. Commonwealth Bank of Australia [1992] 175 C.L.R. 353 at 378Google Scholar; Judicature Amendment Act, N.Z. 1957, s.2; see also: McCamus, ibid. note 12 at 236; Bachand “Restitution of Unlawfully Levied Taxes,” supra note 12 at 973-80.
18. Kleinwort, supra note 15 at 372-74; see also: Smith, Lionel, “Restitution for Mistake of Law” (1999) R.L.R. 148.Google Scholar
19. Virgo, supra note 15 at 141-42. See also: Burrows, The Law of Restitution, supra note 7 at 436-38; Collins, Ronald D., “Restitution from Government Officials” (1984) 29 McGill L.J. 407 at 413-19Google Scholar [Collins, “Restitution from Government Officials”].
20. Collins, ibid. at 413-14.
21. Burrows, “Public Authorities, Ultra Vires and Restitution,” supra note 11 at 41.
22. Maddaugh & McCamus, supra note 7 at 22:200 (22.4-22.6). It should be noted that some scholars call the above-presented division between the “colore officii doctrine” and “actual threat doctrine” as the “entitlement threat” and “threat to sue” doctrines, respectively. See Burrows, ibid. at 42-47.
23. See, for example: Maddaugh & McCamus, ibid. at 22:200 (22.4-22.6); Morgan v. Palmer [1824] 2 B. & Cress. 729 Google Scholar [Morgan v. Palmer]; Burrows, The Law of Restitution, supra note 7 at 436-38; Burrows, ibid. at 41-50.
24. Morgan v. Palmer, supra note 23.
25. Slater v. Burnley Corporation [1888] 59 Law Times 636 Google Scholar [Slater v. Burnley Corporation].
26. See, for example: Maddaugh & McCamus, supra note 7 at 22:200(22.5).
27. Coverdale, John F., “Remedies for Unconstitutional State Taxes” (1999) 32 Conn. L. Rev. 73 at 107-08, 113-14Google Scholar [Coverdale, “Remedies for Unconstitutional State Taxes”]; see also: Pannam, Clifford, “Recovery of Unconstitutional Taxes in Australia and the United States” (1964) 42 Tex. L. Rev. 777 Google Scholar; Maddaugh & McCamus, The Law of Restitution, supra note 7 at 26:200 (22.5-26.6).
28. Birks, “Restitution from the Executive,” supra note 1.
29. Ibid. at 191-95.
30. Ibid. at 191.
31. Ibid. at 172-73.
32. Ibid. at 192-94.
33. Ibid. at 194.
34. Ibid. at 168.
35. Ibid. at 191-95. It should be noted that although Birks’ right of restitution is independent and established automatically as a matter of constitutional principle in every case of improperly collected taxes, this does not mean that restitution follows automatically in every case of improperly collected taxes. By evaluating the argument regarding the possible collapse of public authorities as a result of restitution to taxpayers, Birks acknowledges the possibility of restriction of the constitutional rights of restitution. (See Birks, “Restitution from the Executive,” supra note 1 at 201-04). For a detailed discussion regarding this “fiscal chaos” defence and the rejection of any “two-stage” normative analysis for determining private law grounds of liability from the theoretical perspective of corrective justice, see respectively, notes 74, 249-51 and accompanying text.
36. See, for example: Morgan v. Palmer, supra note 23; Slater v. Burnley Corporation, supra note 25; Whiteley (William) Ltd. v. The King [1909] 101 Law Times 741 Google Scholar [Whiteley v. The King]; Twyford v. Manchester Corporation [1946] Ch. 236 [Twyford v. Manchester Corporation].
37. Birks, “Restitution from the Executive,” supra note 1 at 177, 183-84, 204.
38. Ibid. at 178.
39. Ibid. at 179-80.
40. See, for example: Deutsche Morgan Grenfell Group plc v. Inland Revenue Commissioners and the Attorney General [2007] 1 All E.R 449 Google Scholar, (H.L.) at 611-613 (Lord Walker of Gestingthorpe) [Deutsche Morgan]; see also Andrew Burrows’ preface to Birks’ last work, Birks, Peter, Unjust Enrichment, 2nd ed (Oxford: Oxford University Press, 2005)CrossRefGoogle Scholar, which was published posthumously [Birks, Unjust Enrichment].
41. Woolwich, supra note 3 at 166 (Lord Goff of Chieveley). It should be noted that Lord Goff’s speech and his line of reasoning have been viewed in academic scholarship as a leading speech for the majority in Woolwich. See, for example: Wade, William, Administrative Law, 8th ed. (Oxford: Oxford University Press, 2000) at 784 Google Scholar [Wade]; Maddaugh & McCamus, supra note 7 at 22:300.20(22.13); Leyland, Peter & Anthony, Gordon, Textbook on Administrative Law, 6th ed. (Oxford: Oxford University Press, 2009) at 479 Google Scholar [Leyland & Anthony].
42. Kleinwort, supra note 15.
43. Deutsche Morgan, supra note 40.
44. Woolwich, supra note 3 at 166-67.
45. Ibid. at 171-73.
46. The Authority of Antiquities, supra note 4.
47. Ibid. at para. 35.
48. Ibid. at para. 28-44.
49. Kingstreet, supra note 5.
50. Ibid. at 12-16.
51. Ibid. at 27-30.
52. Woolwich, supra note 3 at 166 (Lord Goff of Chieveley); Kingstreet, ibid. at 18, 21; The Authority of Antiquities, supra note 4, para. 30.
53. Burrows, The Law of Restitution, supra note 7 at 435.
54. Smith, Lionel, “Public Justice and Private Justice: Restitution after Kingstreet” (2008) 46 Can. Bus. L.J. 11 at 17-18Google Scholar [Smith, “Restitution after Kingstreet “]; Maddaugh & McCamus, supra note 7 at 22:300.50.
55. Ironically, after its ultimate triumph and success in the English, Canadian and Israeli jurisdictions, Birks’ doctrine no longer represented Birks’ view as presented in his last works. Under Birks’ “new position,” the automatic right of restitution could be anchored under the civil law principle of “absence of legal reason” without referring to the constitutional right of restitution. See Birks, “Unjust Enrichment,” supra note 40 at 119; see also: Klimchuk, Dennis, “The Scope and Structure of Unjust Enrichment” (2007) 57 UT. L.J. 795 at 812-15.CrossRefGoogle Scholar This “new” Birks’ position is beyond the scope of this study.
56. Smith, “Restitution after Kingstreet,” supra note 54.
57. Ibid. at 16.
58. See Maddaugh & McCamus, supra note 7 at 22:300.50 (22.27).
59. See Chowdry, Monica & Mitchell, Charles, “Tax Legislation as a Justifying Factor” (2005) R.L.R. 1 at 15-18.Google Scholar
60. The Authority of Antiquities, supra note 4, para. 28-35.
61. Deutsche Morgan, supra note 40 at 577-79.
62. In the following Part III Section A., I elaborate on the unjust enrichment ground of liability.
63. Birks, Peter, An Introduction to the Law of Restitution (New York: Oxford University Press, 1985) at 19 Google Scholar; Smith, “Restitution after Kingstreet,” supra note 54 at 18-20.
64. Smith, “Restitution after Kingstreet,” supra note 54 at 16. Also supporters of the “private law school of opinion,” labelled the “public law” location of Birk’s doctrine an “unfortunate development,” see Maddaugh & McCamus, supra note 7 at 22:300.50 (22.27).
65. Kingstreet, supra note 5 at 24.
66. Williams, Rebecca, “The Beginnings of a Public Law of Unjust Enrichment?” (2005) 16 King’s College L.J. 194 at 205-06.Google Scholar See also: Williams, Rebecca, Unjust Enrichment and Public Law: A comparative study of England, France and the EC [Oxford: Hart, 2009].Google Scholar
67. Adler, John, “Restitution in Public Law: Bearing the Cost of Unlawful State Action” (2002) 22 L. S. 165.Google Scholar
68. Kleinwort, supra note 15 at 381-83.
69. See Deutsche Morgan, supra note 40 at 566-67.
70. See the above discussion in Section A.
71. Kingstreet, supra note 5 at 32-33.
72. That is to say, even if the plaintiff proves the relevant components of his restitutionary claim, the public authority may be exempted from liability if it proves one of the possible defences.
73. Under this defence the public authorities usually claim that the plaintiff did not suffer any “loss” by passing on the burden of tax payments to others, usually via a price increase charged to its customers. Thus for example, in Air Canada the Supreme Court of Canada accepted the defendant’s argument that the plaintiff had passed on the tax through fares charged to its passengers. In the US case 123 East the restaurant had passed the tax onto its customers. See Air Canada, supra note 17 at 1207-08; 123 East Fifty-Fourth Street, Inc. v. United States 157 F.2d. 68 (1946).Google Scholar
74. The focus of the defence is on the budgetary stability of public authority. Under this defence, the authority claims that the recognition of the restitution claim could cause “fiscal chaos” and that restitution of taxes will lead to a collapse of the authority. See, for example: Air Canada, ibid. at 1207-08.
75. In Lipkin Gorman the House of Lords held that even if the plaintiff proves the relevant components of the unjust enrichment ground of liability, in every case the defendant has a defence that exempts him from liability if he can show that he has altered his position in good faith. Lipkin Gorman (a firm) v. Karpnale Ltd. [1992] 4 All E.R. 512 Google Scholar, (H.L.) [Lipkin Gorman].
76. Deutsche Morgan, supra note 40.
77. Maddaugh & McCamus, supra note 7 at 22:300.50 (22.29).
78. Kingstreet, supra note 5 at 17-32; see also: Maddaugh & McCamus, ibid. at 22:300.50 (22.27-22.28); 22:300.50-22:400 (22.29-22.34).
79. Maddaugh & McCamus, ibid. at 22:300.50-22:400 (22.29-22.34).
80. Regarding the “passing on” defence see, for example: Maddaugh & McCamus, ibid. at 11:700.10. Following academic critique, the “passing on” defence was explicitly rejected by the House of Lords in England the High Court of Australia, and recently by the Supreme Courts of Canada and Israel. See Woolwich, supra note 3 at 175-76; The Authority of Antiquities, supra note 4, para. 63-64; Commissioner of State Revenue (Victoria) v. Royal Insurance Australia Ltd. [1994] 182 C.L.R. 51 at 90-91Google Scholar; Kingstreet, supra note 5 at 31-35. See also: Birks, “Unjust Enrichment,” supra note 40 at 197-98. Regarding the “fiscal chaos” defence it should be noted that although Peter Birks in his early work ( Birks, Peter, “Restitution from Public Authorities” (1980) 33 Curr. Legal Probs. 191 at 204-05CrossRefGoogle Scholar) argued in favor of this defence, he considerably changed his position and firmly opposed the defence in the “Restitution from Executive” article (Birks, “Restitution from the Executive,” supra note 1 at 195-97. In footnote 29 of that article, Birks admitted that he had changed his position.) Afterwards, the defence was implicitly rejected in Woolwich and Kingstreet. The Israeli Supreme Court in The Authority of Antiquities was willing to take the “middle road.” After considerable deliberation, Cheshin J. decided to recognize the defence of fiscal chaos, but only “in extreme cases and only after the public authority had proved the severity of its damage and the absence of other alternatives.” See Woolwich, supra note 3 at 176-77; Kingstreet, supra note 5 at 24-26; The Authority of Antiquities, supra note 4, para. 61.
81. See generally: Smith, “Restitution after Kingstreet,” supra note 54 at 16-22; Maddaugh & McCamus, supra note 7 at 22:300.50 (22.30-22.31).
82. Smith, ibid. at 24.
83. Maddaugh & McCamus, supra note 7 at 22:300.50 (22.30-22.31). This example involves a big local industry charged under an improperly established taxing statute. The municipality spent the improperly collected tax monies on services for the industry. According to the authors’ view this example proves the incompetence of Bastarache J.’s decision regarding the rejection of the change of position defence in cases of improperly collected taxes. With all due respect, it seems that the authors provided an inappropriate example. The facts regarding the identity of the plaintiff and the defendant (small municipality, big industry) are irrelevant to the change of position defence as it was formulated in Lipkin Gorman. Moreover, the fact that the money was spent on the industry is also irrelevant. The crucial fact that the local authority would not have spent the money without the payment from the industry (special projects, etc.) was not present in the authors’ example. (See Lipkin Gorman, supra note 75 at 579; Birks, “Unjust Enrichment,” supra note 40 at 210-11). From my perspective, the possibility of the application of the change of position defence in cases of improperly collected taxes, indeed is not easy. The nature of public authorities is to spend their finances on different activities. The attempt to differentiate between these activities seems to be problematic and difficult. However, I agree with Maddaugh & McCamus’ position in The Law of Restitution that it would not be appropriate to disqualify in advance (as was done implicitly in Kingstreet) a public authority from raising this private law defence in appropriate cases. See also the discussion that follows in Part IV, Section B.
84. Kingstreet, supra note 5 at 28-32.
85. Deutsche Morgan, supra note 40 at 569-73, 581-82 (Lord Hope of Craighead); 609 (Lord Walker of Gestingthorpe).
86. Ibid. at 582-85 (Lord Hope of Craighead), 614-18 (Lord Brown of Eaton-under-Heywood).
87. Ibid. at 567-68 (Lord Hoffmann); 577-79 (Lord Hope of Craighead); 606-609 (Lord Walker of Gestingthorpe); see also: Williams, Rebecca, “Recovery of ultra vires taxes: a wholly public approach?” (2007) RL.R 130 at 133-35.Google Scholar
88. Birks, “Restitution from the Executive,” supra note 1 at 164-66.
89. Ibid. at 177-79.
90. An Act for Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (1689) 1 Wm & Mary, c. 36 Google Scholar, Art. 4 [English Bill of Rights].
91. See, for example: Burrows, The Law of Restitution, supra note 7 at 438-42; Maddaugh & McCamus, supra note 4 at 22:300 (22.7).
92. It seems that prior to Birks’ article, the “No Taxation Without Legislation” idea first appeared in the second edition of Professor Hogg’s book Liability of the Crown. It would appear that, in this book and Hogg’s further writings, the proposed interpretation of the Bill of Rights is taken for granted without dealing with interpretative theory of legislative/constitutional acts. See Hogg, Peter, Liability of the Crown, 2nd ed. (Toronto, ON: Carswell, 1989) at 184–85 Google Scholar; Hogg, Peter & Monahan, Patrick, Liability of the Crown, 3rd ed. (Toronto, ON: Carswell, 2005) at 245–47 Google Scholar; see also: Craig, Paul P., Administrative Law, 5th ed. (London: Sweet & Maxwell, 2003) at 925–26 Google Scholar [Craig, Administrative Law].
93. McCamus, John D., “Restitutionary Liability of Public Authorities in Canada” in Rickett, Charles & Grantham, Ross, eds., Structure and Justification in Private Law: Essays for Peter Birks (Oxford: Hart, 2008) at 315 Google Scholar [McCamus, “Restitutionary Liability of Public Authorities in Canada”].
94. It should be noted that my goal in the following paragraphs is modest. By proposing an alternative interpretation, my aim is to demonstrate that the “No Taxation Without Legislation” provision does not categorically support Birks’ automatic right to restitution.
95. See, for example: Payne, Douglas, “The Intention of the Legislature in the Interpretation of Statutes” (1956) 9 Curr. Legal Probs. 96.CrossRefGoogle Scholar
96. Lovell, Colin, English Constitutional and Legal History, a Survey (New York: Oxford University Press, 1962) at 282–335 Google Scholar; see also: Shimomura, Floyd D., “The History of Claims Against the United States: The Evolution From a Legislative Toward a Judicial Model of Payment” (1985) 45 La. L. Rev. 625 at 625.Google Scholar See also: Fitzgerald, Peter “An English Bill Of Rights? Some Observations From Her Majesty’s Former Colonies In America” (1982) 70 Geo. L. J. 1229, 1233-35.Google Scholar
97. Maitland, Frederic, The Constitutional History of England, Fisher, H.A.L., ed. (Cambridge: University Press, 1961) at 306–11.Google Scholar See also: Barnett, Hilaire, Constitutional & Administrative Law, 7th ed. (New York: Routledge-Cavendish, 2009) at 99–105.Google Scholar
98. See supra note 4.
99. See supra note 8 and accompanying text.
100. See, for example: Stevens, John, “The Shakespeare Canon of Statutory Construction” (1992) 140 U. Pa. L. Rev. 1373, 1376.CrossRefGoogle Scholar
101. English Bill of Rights, supra note 90, Art. 6.
102. Ibid. Art. 13.
103. See, for example: Machan, Tibor R., “No Taxation With or Without Representation: Completing the Revolutionary Break with Feudalist Practices” in McGee, Robert W, ed., Taxation and Public Finance in Transition and Developing Economies (New York: Springer, 2005) at 170–71.Google Scholar See also: Morgan, Edmund, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988).Google Scholar
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105. Dagan, Hanoch, The Law and Ethics of Restitution (Cambridge: Cambridge University Press, 2004) at 74–85 CrossRefGoogle Scholar [Dagan, The Law and Ethics of Restitution]; Coverdale, “Remedies for Unconstitutional State Taxes,” supra note 27 at 127-28. It should be noted that nowadays the phrase “No Taxation Without Representation” is usually used in the same context and is associated in the United States with the demand of providing Washington, DC citizens equal voting rights with other U.S. states. Although Washington, D.C. citizens are subject to federal taxes, they do not have representation in the US Senate. For the last legislative proposal dealing with this issue see No Taxation Without Representation Act of 2003 (108th Congress, H.R. 1285).
106. See McCamus, “Restitutionary Liability of Public Authorities in Canada,” supra note 93.
107. (1887) 56 L.J.Q.B. 457 [Hooper v. Exeter Corporation].Google Scholar
108. (1853) 8 Exch. 625; 155 E.R. 1502 [Steele v. Williams].Google Scholar
109. Ibid. at 1502.
110. Ibid. at 1502-03.
111. Ibid. at 1503-04.
112. Ibid. at 1504.
113. Ibid. at 1505.
114. Ibid.
115. Birks, “Restitution from the Executive,” supra note 1 at 178. See also Lord Goff of Chieveley’s critical remark regarding Birks’ ignorance of Parke B.’s and Platt B.’s speeches. See Woolwich, supra note 3 at 167.
116. See Woolwich, ibid. at 182 (Lord Jauncey of Tullichettle).
117. Hooper v. Exeter Corporation, supra note 107 at 457.
118. Ibid.
119. Thus Birks stated regarding the correlation of his doctrine with Hooper v. Exeter Corporation: “When you look behind the use of the word, it is clear enough that the ground on which Hooper recovered was the ultra vires nature of the demand.” (Birks, “Restitution from the Executive,” supra note 1 at 178).
120. See supra note 23. Lord Jauncey of Tullichettle even suggested that certain facts that were originally presented to Lord Coleridge were not mentioned in Hooper v. Exeter Corporation. See Woolwich, supra note 3 at 182.
121. See Woolwich, ibid. at 183.
122. Ibid. at 167.
123. Ibid. at 155-56.
124. See the above discussion in section C.
125. See the above discussion in section D.
126. See, for example: Oliver, Dawn, Common Values and the Public-Private Divide (London: Butterworths, 1999)Google Scholar [Oliver, Common Values and the Public-Private Divide]; see also: Waddams, Stephen, Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (New York: Cambridge University Press, 2003) at 191–221.CrossRefGoogle Scholar
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131. Aristotle, , Nicomachean Ethics, trans. by Rowe, Christopher (Oxford: Oxford University Press, 2002) at 1131a29–1131b12.Google Scholar
132. Weinrib, The Idea of Private Law, supra note 6 at 61-63, 210-11.
133. Ibid. at 114-33.
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136. Weinrib, The Idea of Private Law, supra note 6 at 72-76.
137. Ibid. at 6-8, 61-62.
138. Ibid. at 2, 21, 46.
139. This idea deals with the moral capacity of human beings to abstract themselves from their particular desires, inclinations, purposes, loyalties, circumstances, etc. See Hegel, G.W.F., The Philosophy of Right, trans. by Knox, T.M. (Oxford: Oxford University Press, 1967) para. 34–40 Google Scholar [Hegel, The Philosophy of Right]; Kant, Immanuel, The Metaphysics of Morals, trans. by Gregor, Mary (New York: Cambridge University Press, 1996) para. 242 CrossRefGoogle Scholar [Kant, The Metaphysics of Morals]; see also: Weinrib, The Idea of Private Law, supra note 6 at 57-83; Weinrib, “Correlativity, Personality, and the Emerging Consensus on Corrective Justice,” supra note 6 at 110-11.
140. Weinrib, The Idea of Private Law, supra note 6 at 84-112.
141. See generally: Weinrib, The Idea of Private Law, supra note 6 at 145-205.
142. See Benson, Peter, “The Unity of Contract Law” in Benson, Peter, ed., The Theory of Contract Law: New Essays 118 (Cambridge: Cambridge University Press, 2001).CrossRefGoogle Scholar [Benson, “The Unity of Contract Law”].
143. See Weinrib, Ernest J., “The Normative Structure of Unjust Enrichment” in Rickett, Charles & Grantham, Ross, eds., Structure and Justification in Private Law: Essays for Peter Birks (Oxford: Hart, 2008) 21 Google Scholar [Weinrib, “The Normative Structure of Unjust Enrichment”].
144. Weinrib, Ernest J., “The Juridical Classification of Obligations” in Birks, Peter, ed., The Classification of Obligations (Oxford: Oxford University Press, 1997) at 44–46.Google Scholar
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146. Weinrib, The Idea of Private Law, supra note 6 at 158-70; Weinrib, Ernest J., “The Passing of Palsgraf?” (2001) 54 Vand. L. Rev. 803.Google Scholar
147. Weinrib, “The Normative Structure of Unjust Enrichment,” supra note 143 at 37-43.
148. In fact, the relationships between corrective justice theory and positive law are complex. On the one hand this theory uncovers the normative structure of private law doctrines and concepts. However, on the other hand that does not mean that corrective justice theory automatically adopts every provision of positive law. Take for example the above discussion in Part II, Section A regarding the appropriate interpretation of Article 4 of the English Bill of Rights. Corrective justice theory is inconsistent with the “broad” interpretation of the “No Taxation Without Legislation” provision proposed by Birks. Although part of positive law, this interpretation imposed an external to private law liability regime that would be inconsistent within the inner normative structure of corrective justice. For a discussion regarding the relationships between corrective justice theory and the provisions of positive law, see Weinrib, The Idea of Private Law, supra note 6 at 32-45.
149. See supra notes 57-64 and accompanying text.
150. Maddaugh & McCamus, supra note 7 at 1.400 (1.9-1.14). See also: Smith, Lionel, “Restitution” in Cane, P. & MTushnet, , eds., The Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003) at 48–61.Google Scholar
151. This is the prevailing view among legal scholars and commentators. However, it should be noted that Professor Andrew Kull has recently challenged Professors Seavey’s and Scott’s “foundation priority” of the law of unjust enrichment. According to Kull, the argument regarding the conceptual independency of the law of unjust enrichment was first substantially presented by Professor James Barr Ames in a series of articles in the first editions of the Harvard Law Review at the end of the 19th century. See Kull, Andrew, “James Barr Ames and the Early Modern History of Unjust Enrichment” (2005) 25 Oxford J. Legal Stud. 297.CrossRefGoogle Scholar
152. Seavey, Warren & Scott, Austin, “Restitution” (1938) 54 Law Q. Rev. 29 at 30.Google Scholar
153. Restatement of the Law of Restitution (St. Paul, MN: American Law Institute, 1937), part 1.Google Scholar
154. It should be noted that the Canadian Supreme Court used the ex Pression “absence of juristic reason” rather than “unjust.” Nevertheless, it seems that the Canadian Supreme Court did not attribute significance to this semantic difference. See, for example: Deglman v. Brunet Estate [1954] S.C.R. 725, [1954] 3 D.L.R. 785 Google Scholar; Garland v. Consumers’ Gas Co. [2004] 1 S.C.R. 629 para. 40-47.Google Scholar
155. See, for example: Maddaugh & McCamus, supra note 7 at 3.200-3.300 (3.1-3.38.1). For the last economic analysis of the law of unjust enrichment see Porat, Ariel, “Private Production of Public Goods: Liability for Unrequested Benefits (2009) 108 Mich. L. Rev. 189 Google Scholar
156. Weinrib, “The Normative Structure of Unjust Enrichment,” supra note 143.
157. Weinrib, Ernest J., “Correctively Unjust Enrichment” in Chambers, Robert, Mitchell, Charles, and Penner, James, eds., Philosophical Foundations of Unjust Enrichment (Oxford: Oxford University Press, 2009)Google Scholar [Weinrib,”Correctively Unjust Enrichment”].
158. See generally: Klimchuk, Dennis, “The Structure and Content of the Right to Restitution for Unjust Enrichment” (2007) 57 U.T.L.J. 661 CrossRefGoogle Scholar; Klimchuk, Dennis, “Unjust Enrichment and Corrective Justice” in Neyers, J., McInnes, M. & Pitel, S., eds., Understanding Unjust Enrichment (Oxford: Hart, 2004) 111 at 111-39Google Scholar; McInnes, Mitchell, “The Measure of Restitution” (2002) 52 U.T.L.J. 163 at 186-96CrossRefGoogle Scholar; McInnes, Mitchell, “Unjust Enrichment: A Reply to Professor Weinrib” (2001) RL.R 29 Google Scholar; Saprai, Prince, “Restitution Without Corrective Justice” (2006) R.L.R. 41.Google Scholar
159. Hegel, The Philosophy of Right, supra note 139, para. 63.
160. Weinrib, “The Normative Structure of Unjust Enrichment,” supra note 143 at 27.
161. Weinrib, “Correctively Unjust Enrichment,” supra note 157 at 6.
162. Ibid. at 5.
163. Ibid. at 6-7.
164. Ibid. at 30.
165. Ibid. at 31.
166. Ibid. at 7-9.
167. Ibid. at 10.
168. Ibid. at 9.
169. Ibid.
170. Ibid.
171. Weinrib, “The Normative Structure of Unjust Enrichment,” supra note 143 at 36.
172. Weinrib, “Correctively Unjust Enrichment,” supra note 157 at 10-11; Weinrib, “The Normative Structure of Unjust Enrichment,” supra note 143 at 38.
173. Benson, Peter, “The Idea of a Public Basis of Justification for Contract” (1995) 33 Osgoode Hall L. J. 273 at 305-21Google Scholar [Benson, “The Idea of a Public Basis of Justification for Contract”]; see also: Benson, “The Unity of Contract Law,” supra note 142 at 144, n. 33.
174. Benson, “The Idea of a Public Basis of Justification for Contract,” ibid. at 307-08.
175. See, for example: Burrows, The Law of Restitution, supra note 7 at 438-42; Smith, Lionel, “Restitution: The Heart of Corrective Justice” (2001) 79 Tex. L. Rev 2115 at 2144-45Google Scholar [Smith, “The Heart of Corrective Justice”]; Hogg, Peter W, Constitutional Law of Canada, 5th loose leaf ed. (Scarborough ON: Carswell, 2007) at 58.14–58.19 Google Scholar [Hogg, “Constitutional Law of Canada”]; Pal, Michael, “The Supreme Court of Canada’s Approach to the Recovery of Ultra Vires Taxes” (2008) 66 U.T.Fac.L.R. 68 at 72-73Google Scholar [Pal, “The Recovery of Ultra Vires Taxes”].
176. See The Authority of Antiquities, supra note 4.
177. Birks, “Unjust Enrichment,” supra note 40 at 3-9.
178. It seems that this distinction was made by Professor Loughlin. See Loughlin, supra note 127 at 77-78, 157-58.
179. See, for example: Beatson, Jack, “Restitution of Taxes, Levies and Other Imposts: Defining the Extent of the Woolwich Principle” (1993) Law Q. Rev. 401 at 414-18.Google Scholar
180. It would appear that Weinrib’s analysis of Lamb v. London Borough of Camden (where one of the litigated parties was a municipality) supports this position. The fact that Weinrib views this case as a private law case governed by corrective justice principles seems to support the above-presented argument. See Weinrib, The Idea of Private Law, supra note 6 at 219-22.
181. See also the following notes 237-39 and accompanying text.
182. See, for example: Smith, “Restitution after Kingstreet,” supra note 54 at 21-22.
183. In this case, the homeowner sued his municipality for the damage resulting from the negligent repair of a sewer pipe. See Lamb v. London Borough of Camden (1981) 2 All E.R. 408 Google Scholar (CA.); Weinrib, The Idea of Private Law, supra note 6 at 219-22.
184. Weinrib, The Idea of Private Law, ibid.
185. Harris, Ron, “The Transplantation of the Legal Discourse on Corporate Personality Theories: From German Codification to British Political Pluralism and American Big Business” (2006) 63 Wash. & Lee L. Rev. 1421 at 1457-59.Google Scholar
186. See Millon, David, “Theories of the Corporation” (1990) Duke L.J. 201 at 205-07CrossRefGoogle Scholar [Milton,”Theories of the Corporation”]; Harris, ibid. at 1462-66. Horwitz, Morton J., “Santa Clara Revisited: The Development of Corporate Theory” (1985) 88 W. Va. L. Rev. 173, 184-85Google Scholar; see also Kim, Susanna M., “Characteristics of Soulless Persons: The Applicability of the Character Evidence Rule to Corporations” (2000) U. Ill. L. Rev. 763 at 785-87.Google Scholar
187. The German scholar Otto von Gierke first introduced it in the mid-19th century. In England Frederic Maitland adopted and developed Gieke’s ideas in his book Township and Borough. In the United States the “personhood” foundation of corporate theory was executed by Ernst Freund. See respectively: Von Gierke, Otto, Community in Historical Perspective: A Translation of Selections from Das Deutsche Genossenschaftsrecht, trans. by Fischer, Mary (Cambridge: Cambridge University Press, 1990)Google Scholar; Maitland, Frederic W. Township and Borough (Cambridge: University Press, 1898)Google Scholar; Freund, Ernst The Legal Nature of Corporations (Thesis, Columbia University, 1897)Google Scholar [unpublished]. It should be noted that despite the dominance of the alternative theories, many common law courts intuitively tended to adopt the personality conception. Although the United States Constitution does not mention corporations, the Supreme Court at the end of the 19th century held that corporations are “persons” for the purposes of the fourteenth amendment (see, for example: Mayer, Carl J., “Personalizing the Impersonal: Corporations and the Bill of Rights” (1990) 41 Hastings L.J. 577 at 579-82).Google Scholar Given the conceptual difficulty of other theories of corporations, the common law courts were willing to view corporations as human beings by factually adopting the “corporate personality” line of reasoning. See Avi-Yonah, Reuven, “The Cyclical Transformations of the Corporate Form: A Historical Perspective on Corporate Social Responsibility” (2005) 30 Del. J.Corp.L. 767 at 798-801.Google Scholar
188. See Donaldson, Thomas, Corporations and Morality (Englewood Cliffs, NJ: Prentice-Hall, 1982) at 36–58 Google Scholar; see also: Millon, “Theories of Corporations,” supra note 186 at 211-20; see also: Neyers, Jason W., “Canadian Corporate Law, Veil-Piercing, and the Private Law Model Corporation” (2000) 50 U.T.L. J. 173 at 185-89.CrossRefGoogle Scholar
189. From this perspective, I willingly adopt Barber’s and Craig’s critique of Loughlin’s argument regarding the “public law” location of corporations and other types of organizations (See Barber, Nicholas W., “Professor Loughlin’s Idea of Public Law” (2005) 25 Oxford J. Legal Stud. 157 at 166CrossRefGoogle Scholar; Craig, Paul, “Theory, ‘pure theory’ and values in public law” (2005) PL. 440 at 445-46).Google Scholar However, in contrast to Barber’s and Craig’s line of reasoning, I think that the reason for Loughlin’s conceptual difficulty lies in the “public law location” of these organizations.
190. See above discussion, Part I, Section A.
191. This category is viewed nowadays as a sub-category of the general principle of unjust enrichment. See supra notes 150-55 and accompanying text.
192. See, for example: Aiken v. Short (1856) 1 H. & N. 210 at 215.Google Scholar
193. See, for example: Chambers v. Miller (1862) 13 C.B.(N.S.) 125.Google Scholar
194. Dicey, A. V, Introduction to the Study of the Law of Constitution, 8th ed. (London: Macmillan, 1885).Google Scholar See also: Cane, Peter & McDonald, Leighton, Principles of Administrative Law: Legal Regulation of Governance (Oxford: Oxford University Press, 2008) at 3–4, 286.Google Scholar
195. Smith, “Restitution after Kingstreet, supra note 54 at 29-32; see also Oliver, “Common Values and the Public-Private Divide,” supra note 126 at 169.
196. Leyland & Anthony, supra note 41 at 484-88; Wade, supra note 41 at 736.
197. Smith, “Restitution after Kingstreet,” supra note 54 at 30.
198. Bradley, A.W. & Ewing, K. D., Constitutional and Administrative Law, 13th ed. (Harlow: Pearson Longman, 2002) at 769 Google Scholar; Wade, supra note 41 at 775; Leyland & Anthony, supra note 41 at 471-73; Cane & McDonald, supra note 194 at 303.
199. See the sources cited in supra note 175.
200. See, for example: Coverdale, “Remedies for Unconstitutional State Taxes,” supra note 27 at 73; see also supra note 8.
201. McKesson Corp. v. Division of Alcoholic Beverages & Tobacco 496 U.S. 18 (1990).Google Scholar
202. See supra note 5. See also: Amax Potash Ltd. v. Saskatchewan [1977] 2 S.C.R. 576.Google Scholar
203. Allen, Anita L., “Social Contract Theory in American Case Law” (1999) 51 Fla. L. Rev. 1 at 33-35.Google Scholar
204. Loughlin, supra note 127 at 42-52.
205. For a different view see Coverdale, “Remedies for Unconstitutional State Taxes,” supra note 27 at 76-79.
206. See La Forest, G. V, The Allocation of Taxing Power Under the Canadian Constitution, 2nd ed (Toronto, ON: Canadian Tax Foundation, 1981) at 51–55.Google Scholar
207. See supra notes 76-87 and the accompanying text.
208. Air Canada, supra note 17.
209. Ibid. at 1197.
210. See supra notes 74, 80 and accompanying text.
211. See Birks, “Restitution from the Executive,” supra note 1.
212. Burrows, The Law of Restitution, supra note 7 at 438-42; Smith, “The Heart of Corrective|Justice,” supra note 175 at 2144-45; Hogg, Constitutional Law of Canada, supra note 175 at 58.14-58.19; Hogg & Monahan, supra note 92 at 246-50; Craig, Administrative Law, supra note 92 at 925-26.
213. Birks rejects the proposed distinction: see Birks, “Restitution from the Executive,” supra note 1 at 197; see also: Woolwich, supra note 3 at 175-77; Kingstreet, supra note 5 at 24-25; Hogg, Constitutional Law of Canada, ibid. at 58.19; Burrows, The Law of Restitution,” supra note 7 at 443-44; Pal, “The Recovery of Ultra Vires Taxes,” supra note 175 at 76.
214. See, for example: Wade, supra note 41 at 35-37; Craig, Administrative Law, supra note 92 at 7-11.
215. It should be noted that this immunity from distributive principles is restricted only to the issue of private law liability in the spectrum of the relationships between the public authority and the individual. Therefore, for example, this position does not oppose further application of the unauthorized decision in the spectrum of the relationships between the decision-maker and public authority and in the spectrum of relationships between the decision-maker and the government.
216. Coverdale, “Remedies for Unconstitutional State Taxes,” supra note 27 at 84-90.
217. Oliver, Dawn, “Is the Ultra Vires Rule the Basis of Judicial Review?” in Forsyth, Christopher, ed., Judicial Review and the Constitution (Oxford: Hart, 2000) 3 Google Scholar; Woolf, Harry, “Droit Public—English Style” [1995] PL. 57.Google Scholar
218. Cane & McDonald, supra note 194 at 164; see also: Beatson, Jack, “The Scope of Judicial Review for Error of Law (1984) 4 Oxford J. Legal Stud. 22 at 25.CrossRefGoogle Scholar
219. See Leyland & Anthony, supra note 41 at 483. See also: Phelps v. Hillingdon London Borough Council [2001] 2 A.C. 619 at 658.Google ScholarPubMed It seems that by adopting the “regular” liability rules in the cases of “operational decision,” the common law reflects the above-presented distinction between private and public law based on the distinction between corrective and distributive justice.
220. See, for example: Davies, Anne, “Ultra Vires Problems in Government Contracts” (2006) 122 LawQ. Rev. 98 at 115-117.Google Scholar
221. See supra notes 159-65 and accompanying text.
222. See supra notes 166-74 and accompanying text.
223. See supra notes 166-69 and accompanying text.
224. Kant, The Metaphysics of Morals, supra note 139, para. 236; Weinrib, “The Normative Structure of Unjust Enrichment,” supra note 143 at 44.
225. Birks, Unjust Enrichment, supra note 40 at 3-9.
226. Weinrib, “The Normative Structure of Unjust Enrichment,” supra note 143 at 36.
227. See, for example: Dagan, “The Law and Ethics of Restitution,” supra note 105 at 37-85. For a corrective justice critique of this “one side” inquiry in cases of mistake, see Weinrib, Ernest J., “Restoring Restitution” (2005) 91 Va.L. Rev. 861 at 869-70Google Scholar [Weinrib, “Restoring Restitution”].
228. Virgo, supra note 15 at 137.
229. Ibid.
230. See above, Part I, Section A.
231. Ibid.
232. See supra notes 22-27 and the accompanying text.
233. See, for example, the above exposition of the Hooper v. Exeter Corporation and Steele v. Williams in Part II, Section B. See also: Slater v. Burnley Corporation, supra note 25 at 639; William Whiteley Limited v. The King, supra note 36 at 745; Maskell v. Horner (1915) 3 K.B. 106, C.A. at 118Google ScholarPubMed [Maskell v. Horner]; Twyford v. Manchester Corporation, supra note 36 at 241.
234. See Maskell v. Horner, ibid.
235. Burrows, “Public Authorities, Ultra Vires and Restitution,” supra note 11 at 41; Virgo, The Principles of the Law of Restitution, supra note 15 at 405.
236. Stewart, Hamish, “A Formal Approach to Contractual Duress” (1997) 47 U.T.L.J. 175 at 181-85.CrossRefGoogle Scholar
237. See Maddaugh & McCamus, supra note 7 at 22:300.30 (22.16-22.20).
238. See supra notes 181-82 and accompanying text.
239. See Maddaugh & McCamus, supra note 7 at 22:200.
240. See supra notes 31-33 and accompanying text.
241. For a similar view against Birks’ doctrine and in favour of softening the “private law” doctrine of “compulsion” see Collins, “Restitution from Government Officials,” supra note 19 at 429-31; Burrows, “Public Authorities, Ultra Vires and Restitution,” supra note 11 at 40. Professor Collins formulated his proposal and the objection to Birks’ doctrine in the following terms: “The special standard theory is similar to the ultra vires theory in that it would allow restitution in a majority of colore officii situations. However, it avoids the conceptual problem of the ultra vires theory, in that it continues to focus on the plaintiff’s voluntariness. Therefore it does not violate the general principle that there should be no restitution where the parties have made a voluntary compromise intending to waive any further rights.” (Collins, “Restitution from Government Officials,” supra note 19 at 430 [emphasis added].)
242. See supra notes 74, 80 and the accompanying text.
243. Coverdale, “Remedies for Unconstitutional State Taxes,” supra note 27 at 82-84.
244. Ibid. at 131-32.
245. See Crerar, David A., “The Restitutionary Class Action: Canadian Class Proceedings Legislation as a Vehicle for the Restitution of Unlawfully Demanded Payments, Ultra Vires Taxes, and Other Unjust Enrichments” (1998) 56 UT. Fac.L. Rev. 47 at 69.Google Scholar
246. Bentham, Jeremy, Principles of Morals and Legislation (Buffalo, NY: Prometheus Books, 1988).Google Scholar
247. Smith, “The Heart of Corrective Justice,” supra note 175 at 2144.
248. See McCamus, “Restitutionary Recovery,” supra note 12 at 256-57.
249. See, for example: Dagan, The Law and Ethics of Restitution, supra note 105 at 47-51.
250. See also Weinrib, “Restoring Restitution,” supra note 227 at 870-72.
251. Weinrib, “Correctively Unjust Enrichment,” supra note 157 at 16.
252. My analysis of the “change of position” and “passing on” defences here is differentiated from Weinrib’s exposition of these defences. See Weinrib, “The Normative Structure of Unjust Enrichment,” supra note 143 at 33-34.
253. See supra note 75 and accompanying text.
254. See also Drassinower, Abraham, “Unrequested Benefits in the Law of Unjust Enrichment” (1998) 48 U.T.L.J. 459 at 483-84.CrossRefGoogle Scholar
255. See also supra notes 73, 80 and accompanying text.
256. Rush, Michael, The Defence of Passing On (Oxford: Hart, 2006) at 67–81.Google Scholar
257. See, for example: Smith, “The Heart of Corrective Justice,” supra note 175 at 2152-55. See, also Weinrib, “The Normative Structure of Unjust Enrichment,” supra note 143 at 33.
258. See supra notes 142-48 and accompanying text.