Restitution

The law of restitution is the third branch – in addition to contract and tort – of the common law of obligations. An understanding of restitutionary doctrine is vitally important for potential litigators and commercial lawyers. Restitutionary issues can, however, arise in virtually every legal area. This course covers a number of topics – such as fiduciary obligation and constructive trust – that feature prominently in contemporary litigation both in commercial matters and in other aspects of private law, including family law.

The course organizes these materials in terms of a unifying theory of unjust enrichment and examines the relationship of restitution with the more familiar doctrines of tort, contract and property law. In so doing, the course fills in a number of gaps left by the first year contracts course and offers the student an overview of the entire field of civil liability.

Placing particular emphasis on Canadian materials which adopt the unjust enrichment theory, the course examines the more common instances of restitutionary recovery, benefits conferred under mistake, fraud or compulsion, in circumstances of necessity, or under transactions that are ineffective for such reasons as informality, incapacity, illegality, mistake, undue influence, unconscionability, frustration or breach. As well, consideration is given to the recovery of benefits acquired through wrongdoing whether criminal, tortious or in breach of a fiduciary duty.

Advanced Torts

This course will focus on injuries to relational interests, including negligent and/or intentional interference with family relationships, economic relationships, and community relationships. Topics covered will include the torts of intimidation, conspiracy, inducing breach of contract, defamation and invasion of privacy, and liability for economic loss from negligence. Each area of tort law doctrine will be considered in context. This will involve exploration of various jurisprudential perspectives on tort law including law and economics, critical legal studies, feminist legal theory, and critical race theory.

Law & Social Change: Torts and Technology

Tort law is one of the law’s oldest areas of law, where one still encounters such Latin tags as “sic utere tuo ut alienum non laedas” and “volenti non fit injuria,” where some cases printed in the casebooks are a century older than printed books. Can this area of law be of any relevance to the brave new world of large language models in the metaverse? Perhaps. In 2023, Epic Games, the studio that developed the enormously popular video game “Fortnite,” was sued in both Quebec and British Columbia on the charge that their game was too addictive. Snapchat was sued in the United States after a traffic collision for allegedly encouraging its users to earn a “badge” by driving at excessive speeds. The leading Canadian case on invasion of privacy did not involve snooping into someone else’s bedroom but accessing their bank account details. Social media is full of statements that could be seen as defamatory, and more recently chatbots have added their voice, with one of them calling their interlocutor “worse than Hitler.”

The course aims to see what tort law can do to deal with these questions. It will start by considering the impact of technology on our lives; it will then turn to the question of the interrelationship between technological change and legal (especially tort) doctrine: how technological change influenced doctrine and whether doctrine can affect technological change. The main bulk of the course will be devoted to examining the law of defamation, harassment, and invasions of privacy. These areas of law are not new, but new technology has both given them greater urgency while maybe also exposing the limits of tort law for dealing with them.