Restitution 2021

Course Chairs
The Honourable Mr. Justice Geoffrey B. Gomery — Supreme Court of BC, Vancouver
Peter R. Senkpiel — Nathanson, Schachter & Thompson LLP, Vancouver

About the Course Chairs
Justice Gomery was called to the BC bar in 1984 and appointed Queen's Counsel in 2010.  His practice focused on civil and administrative litigation prior to his appointment to the Supreme Court of BC in June 2018. He has taught as an adjunct professor at UBC and participated as a faculty member in more than 30 continuing legal education programs.

Peter Senkpiel is a leading barrister in BC with a broad commercial litigation, alternative dispute resolution, and advisory practice. Peter has extensive experience as trial and appellate counsel.

After law school, Peter clerked for Chief Justice Lance Finch at the BC Court of Appeal.

Peter is the editor of the Civil Appeal Handbook and sits on the Board of Directors for the Vancouver International Arbitration Center. From 2015-19, he was an adjunct professor at UBC Law teaching a course on the law of Restitution and Unjust Enrichment.

Peter has been recognized as a Leading Lawyer Under 40 and a Leading Lawyer to Watch by Lexpert and as a Litigation Star by Benchmark Litigation Canada. He was recently shortlisted as the BC Litigator of the Year by Benchmark and he was lead counsel in Pirani v. Pirani which won an impact case award.

Faculty
Professor Samuel Beswick — Peter A. Allard School of Law, UBC, Vancouver
Alex Cocks — McCarthy Tétrault LLP, Vancouver
Michael Feder, QC — McCarthy Tétrault LLP, Vancouver
Emily L. Hansen — Nathanson, Schachter & Thompson LLP, Vancouver
Reidar M. Mogerman, QC — Camp Fiorante Matthews Mogerman LLP, Vancouver
Stephen R. Schachter, QC — Nathanson, Schachter & Thompson LLP, Vancouver
Professor Lionel D. Smith — Director, Paul-André Crépeau Centre for Private and Comparative Law, Faculty of Law, McGill University, Montreal

Click here for full faculty bios

Welcome and Land Acknowledgement (9:00 – 9:10)

The Honourable Mr. Justice Geoffrey B. Gomery — Supreme Cour of BC, Vancouver
Peter R. Senkpiel — Nathanson Schachter & Thompson LLP, Vancouver

Unjust Enrichment: Principle or Cause of Action? (9:10 – 10:25)

• is unjust enrichment a legal test to be applied to proven facts?
• or is it a general principle that is implemented by different legal tests?
• summary of current debates and case law illustrations
• the relationship between unjust enrichment and money had and received as a practical illustration

Moderator: The Honourable Mr. Justice Geoffrey B. Gomery — Supreme Cour of BC, Vancouver
Professor Samuel Beswick — Peter A. Allard School of Law, UBC, Vancouver
Professor Lionel D. Smith — Director, Paul-André Crépeau Centre for Private and Comparative Law, Faculty of Law, McGill University, Montreal

BREAK (10:25 – 10:40)

Restitution for Wrongful Conduct and Related Topics (10:40 – 11:55)

• restitution v. disgorgement—what' the difference?
• discussion of the impact of Atlantic Lottery Corporation v. Babstock, 2020 SCC 19 on class actions in Canada
  • the plaintiff's perspective
  • the defence perspective

Alex Cocks — McCarthy Tétrault LLP, Vancouver
Reidar M. Mogerman, QC — Camp Fiorante Matthews Mogerman LLP, Vancouver

LUNCH (11:55 – 12:30)

Defences to Restitutionary Claims (12:30 – 1:45)

• change of position
  • elements of the defence
  • scope of the defence; causation issues
  • is estoppel now irrelevant as a defence?
• illegality
  • the nature of the defence
  • recent developments at home and further afield
• the rest of the crowd: other defences to restitutionary claims 

Emily L. Hansen — Nathanson, Schachter & Thompson LLP, Vancouver
Peter R. Senkpiel — Nathanson Schachter & Thompson LLP, Vancouver

BREAK (1:45 – 2:00)

Remedies (2:00 – 3:15)

• for what wrongs are gains-based remedies available?
• what causal connection need to be shown between a defendant's wrong and their loss/gain?
• the role of the equities
• the impact of Pirani v. Pirani, 2020 BCSC 947, 2020 BCSC 1711, 2021 BCSC 1530

Michael Feder, QC — McCarthy Tétrault LLP, Vancouver
Stephen R. Schachter, QC — Nathanson, Schachter & Thompson LLP, Vancouver

Closing Remarks (3:15 – 3:30)

The Honourable Mr. Justice Geoffrey B. Gomery — Supreme Cour of BC, Vancouver
Peter R. Senkpiel — Nathanson Schachter & Thompson LLP, Vancouver