Quantum Meruit

936464 Ontario Ltd. v. Mungo Bear Ltd., 2003 CanLII 72356 (ON SCDC)

[13] The remedy of quantum meruit has its roots in quasi- contract, which constitutes a third class of the common law distinct from contract or tort, as is made clear at para. 630 of Halsbury's Laws of England (4th ed.):

Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution.

For historical reasons, quasi-contract has traditionally been treated as part of, or together with, the law of contract. Yet independently, equity has also developed principles which are aimed at providing a remedy for unjustifiable enrichment. It may be that today these two strands are in the process of being woven into a single topic in the law, which may be termed "restitution."

[19] In the leading constructive trust case of Peter v. Beblow, 1993 CanLII 126 (SCC), [1993 1 S.C.R. 980, [1993] S.C.J. No. 36, at p. 987 S.C.R., McLachlin J.] (as she then was) considered quantum meruit to be an equitable remedy:

"Unjust enrichment" in equity permitted a number of remedies, depending on the circumstances. One was a payment for services rendered on the basis of quantum meruit or quantum valebat. Another equitable remedy, available traditionally where one person was possessed of legal title to property in which another had an interest, was the constructive trust. [page51 ]

[38] Green J.A., speaking for the court, referred to s. 3(1) of the Small Claims Act, R.S.N.L. 1990, c. S-16, which conferred jurisdiction to adjudicate "upon a claim for debt, whether payable in money or otherwise, or for damages, including damages for breach of contract, where the amount claimed does not exceed $3,000 ...". He noted that this section did not include a jurisdiction to grant non-monetary remedies, such as specific relief in the form of the transfer or return of property. Since the Small Claims Court was a creature of statute, without the inherent jurisdiction of a superior court, he concluded that, in the absence of an express conferral of jurisdiction, it must be concluded that it did not exist. Thus, the court had no jurisdiction to order the return of the shoes.

[40] I cannot leave this section of my reasons without referring back to the decision of Desotti J. in Caranci v. Ford Credit Canada Leasing Limited, supra. It is apparent from his endorsement that Desotti J. was not referred to s. 23 of the Act, which has played a pivotal role in the analysis I have undergone. For that reason, I respectfully decline to follow that decision.