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(B) THE CHARACTERISTICS OF RESTITUTIONARY REMEDIES

(i) Restoring What the Claimant Lost

Since restitutionary remedies are assessed by reference to the defendant’s gain, they operate in a very different way from compensatory remedies, where the measure of relief is assessed by reference to the claimant’s loss. Despite this, in many cases the effect of a restitutionary remedy will be to restore to the claimant what he or she has lost, because the extent of the defendant’s gain will reflect precisely what the claimant lost. ‘Restitutionary’ is clearly the most appropriate word to describe such remedies, since their function is to restore to the claimant the value of the thing, the thing itself, or its substitute, which the claimant had lost.

The award of such restitutionary remedies to the claimant can be justified on the ground that, where the defendant has obtained a benefit at the claimant’s expense, justice demands that this should be restored to the claimant.[1] This is known as ‘corrective justice’.[2]

As Bastarache J recognized in Kingstreet Investments Ltd v New Brunswick (Finance)-? ‘Restitution is a tool of corrective justice. When a transfer of value between two parties is normatively defective, restitution functions to correct that transfer by restoring parties to their pre-transfer positions.’

The importance of restitutionary remedies as a mechanism for correcting injustice between the parties was recognized by Fuller and Perdue-

If, following Aristotle, we regard the purpose of justice as the maintenance of an equilibrium of goods among members of society, the restitution interest presents twice as strong a claim to judicial intervention as the reliance interest, since if A not only causes B to lose one unit but appropriates that unit to himself, the resulting discrepancy between A and B is not one unit but two.10

The essence of corrective justice is that, where it can be shown that it is just for the defendant to make restitution to the claimant, legal rules are required to impose an obligation of restitution on the defendant. The award of restitutionary remedies consequently operates as a mechanism to secure corrective justice by rectifying an imbalance between the claimant and the defendant, by requiring the defendant to give back what has been received from the claimant.

  • [1] Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, 61 (Lord Wright).
  • [2] See K Barker, ‘Understanding the Unjust Enrichment Principle in Private Law: A Study of the Conceptand its Reasons’ in J Neyers, M McInnes, and S Pitel (eds), Understanding Unjust Enrichment (Oxford: Hart
 
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