Canadian-Automatic Data Processing Services Ltd.

v. Bentley,


2004 BCCA 408

Date: 20040723

Docket: CA030926


Canadian-Automatic Data Processing Services Ltd.




Rob Bentley






The Honourable Madam Justice Rowles

The Honourable Madam Justice Huddart

The Honourable Mr. Justice Mackenzie


R.A. Millar and K.M. Jackson

Counsel for the Appellant

L.D. Ridgedale

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

2 April 2004

Place and Date of Judgment:

Vancouver, British Columbia

23 July 2004


Written Reasons by:

The Honourable Mr. Justice Mackenzie (p. 20, paragraph 42)

Concurred in by:

The Honourable Madam Justice Rowles

Dissenting Reasons by:

The Honourable Madam Justice Huddart (p. 2, paragraph 1)

Reasons for Judgment of the Honourable Madam Justice Huddart:

[1]            The central issue on this appeal is the liability of the respondent for employment and severance payments made by the appellant on behalf of the corporation of which the respondent was formerly an officer.  The fundamental question is whether the respondent has been unjustly enriched by those payments.  The answer to that question depends on the proper interpretation of the provision of the Employment Standards Act, R.S.B.C. 1996, c. 113 imposing liability on corporate officers for unpaid wages and severance pay.  If the appellant’s payments relieved the respondent of the liability created by that section, and thereby conferred a benefit on him, is there any juristic reason justifying his retention of that benefit at the appellant’s expense?


[2]            Syntecor Limited (“Syntecor”), a wholly owned subsidiary of a British company, carried on business as a provider of application services to clients in the technology industry.  At all relevant times, the respondent, Rob Bentley, was its only officer resident in British Columbia.

[3]            On 16 February 2000, Syntecor and the appellant, Canadian-Automatic Data Processing Services Ltd. (“ADP”), entered into a Client Financial Authorization agreement (the “CFA Agreement”) by which ADP agreed to provide payroll services to Syntecor.  The pertinent portion of the CFA Agreement reads as follows:

[Syntecor] acknowledges and agrees that in order for [ADP] to provide certain of its payroll, payroll related, and/or other services (the “Services”), [Syntecor] must remit, or otherwise make available, sufficient, good funds to ADP [two days in advance of the date on which any given payroll is to be paid] so that ADP may use such funds to satisfy [Syntecor]’s third party payment obligations (including, without limitation, obligations to [Syntecor]’s employees and taxing authorities) covered by the Services in their entirety.

If … [Syntecor] remits, or otherwise makes available, funds to ADP … and such funds shall not be sufficient and good in any instance to cover the total third party payment obligations of [Syntecor] intended to be paid with such funds, then; (a) ADP shall have the right to allocate such funds in such priorities and for such purposes as ADP shall decide (including, without limitation, for the purpose of reimbursing ADP for any funds advanced by ADP in anticipation of receiving sufficient, good funds from [Syntecor]) with respect to any third party payment obligations of [Syntecor] covered by the Services, and (b) notwithstanding anything to the contrary in any other Agreement between the parties, ADP shall have the right to terminate [Syntecor] from any one or all of the ADP Services if [Syntecor]’s failure to provide sufficient, good funds … shall cause a loss or risk of loss (in ADP’s sole judgement) of funds to ADP.

[4]            At some point in the summer of 2001, Syntecor’s parent company decided to discontinue funding Syntecor’s operations.  On 28 August 2001, without any knowledge of this solvency problem, and in accordance with Syntecor’s instructions and its usual practice, ADP processed through Syntecor’s account at the Royal Bank a debit advice in the amount of $61,224.23, intended to fund payment of the 17-31 August 2001 payroll submitted by Syntecor to ADP.  $61,224.23 duly appeared in ADP’s bank account, representing $15,802.84 in regular wages and $25,893.65 in severance pay, plus source deductions in both cases.  On 31 August 2001, ADP paid out that amount on behalf of Syntecor.  Mr. Bentley was among those paid.

[5]            On 24 September 2001, the Royal Bank returned the debit advice because there were insufficient funds in Syntecor’s account.  $61,224.23 was withdrawn from ADP’s account.  ADP was able to stop payment on a cheque for $1,640.88 issued on behalf of Syntecor, leaving it $59,583.35 out of pocket.

[6]            On 26 September 2001, Syntecor made an assignment in bankruptcy.  In April 2002, ADP sued Syntecor, one of Syntecor’s directors and Mr. Bentley, claiming $59,583.35 plus interest.  We are advised ADP has settled its claim against the director.  

[7]            At the root of the parties’ dispute is the assignment of the risk inherent in the inevitable delays in the clearing system of Canada’s chartered banks.  The trial judge refused to transfer responsibility for ADP’s loss arising from that risk by way of the doctrine of unjust enrichment, being unpersuaded Mr. Bentley had received a benefit from ADP’s 31 August 2001 payments on behalf of Syntecor.  This appeal turns on whether the trial judge erred in that regard.


[8]            Because the parties agreed that Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762 governs the availability of recovery for unjust enrichment, it will be helpful to review that decision in some detail.

[9]            In that case, the Municipality of Peel sought to recover from the federal government funds it had been required to expend pursuant to federal legislation that the Supreme Court of Canada later held to be ultra vires Parliament.  McLachlin J. (as she then was), writing for the majority of the court, began her analysis by explaining at 788 the “tri-partite principle of general application” that governs an unjust enrichment analysis:

At the heart of the doctrine of unjust enrichment … lies the notion of restoration of a benefit which justice does not permit one to retain.  [As stated in Robert Goff & Gareth Jones, The Law of Restitution, 3d ed. (London: Sweet & Maxwell, 1986) at 12]: “Most mature systems of law have found it necessary to provide, outside the fields of contract and civil wrongs, for the restoration of benefits on grounds of unjust enrichment”.  Thus for recovery to lie, something must have been given, whether goods, services or money.  The thing which is given must have been received and retained by the defendant.  And the retention must be without juristic justification, to quote [Dickson J. (as he then was) in Pettkus v. Becker, [1980] 2 S.C.R. 834 [Pettkus]].

(Emphasis added.)

[10]        In her view, that principle could be said to have “grown out of the traditional categories of recovery” for unjust enrichment, namely:

… (1) a benefit conferred under compulsion; (2) a benefit conferred out of necessity; (3) a benefit conferred as a result of an ineffective transaction; and (4) a benefit conferred at the request of the defendant.

(See Peel, supra at 788-89.)

[11]        However, McLachlin J. explained at 789 that the general principle permitted recovery in cases not falling within the traditional categories:  

… [T]he traditional categories of recovery, while instructive, are not the final determinants of whether a claim lies.  In most cases, the traditional categories of recovery can be reconciled with the general principles enunciated in Pettkus v. Becker, supra.  But new situations can arise which do not fit into an established category of recovery but nevertheless merit recognition on the basis of the general rule.



[12]        The learned trial judge appears to have approached ADP’s claim with reference to cases dealing with the first historical category of recovery, namely conferral of a benefit under compulsion.  Specifically, he looked to Society of Notaries Public (British Columbia) v. Dowson, (1995) B.C.L.R. (3d) 97 (S.C.)[Dowson], which in turn cites Owen v. Tate, [1975] 2 All E.R. 129 (C.A.), an English decision that lists five pre-conditions a claimant must satisfy in order to recover on the basis of that historical category.  In my view, such an approach may encourage a rather rigid analysis that is ill suited to the facts of this case and that overlooks the principled approach to unjust enrichment reflected in Peel, supra, and later cases such as Peter v. Beblow, [1993] 1 S.C.R. 980 [Peter].  I prefer to approach ADP’s claim with reference to the general principles of unjust enrichment, just as McLachlin J. did vis-à-vis the municipality’s claim in Peel.

[13]        The Supreme Court of Canada recently reaffirmed the principled three-part test governing unjust enrichment claims in Garland v. Consumers’ Gas Co., 2004 SCC 25 [Garland] in these familiar terms:

1. Was the defendant enriched by receipt of a benefit?
2. Was the plaintiff correspondingly deprived?
3. Is there any juristic reason for the enrichment?

[14]        Applying the test to the facts of this case, the first and most contentious question is this: did Mr. Bentley receive a benefit by virtue of ADP’s 31 August 2001 payments on behalf of Syntecor?

[15]        ADP argues that its payments benefited Mr. Bentley by discharging his legal liability under s. 96 of the Employment Standards Act.  On its reading of that section, Mr. Bentley would have been liable for all of Syntecor’s payroll obligations as of 31 August 2001 had ADP not satisfied them on its behalf.  As of that date, s. 96 of the Employment Standards Act provided:

(1)  A person who was a director or officer of a corporation at the time wages of an employee of the corporation were earned or should have been paid is personally liable for up to 2 months’ unpaid wages for each employee.


(2)  Despite subsection (1), a person who was a director or officer of a corporation is not personally liable for


(a) [severance pay in lieu of notice owed pursuant to s. 63], termination pay or money payable under a collective agreement in respect of individual or group terminations, if the corporation is in receivership or is subject to action under section 427 of the Bank Act (Canada) or to a proceeding under an insolvency Act … .

[16]        Section 1(1) of the Employment Standards Act defines “wages” to include severance pay owed pursuant to s. 63.

[17]        It is uncontroversial that a benefit may “be ‘negative’ in the sense that the benefit conferred upon the defendant is that he or she was spared an expense which he or she would have been required to undertake” (Peel, supra at 790).  In general, conferral of this sort of benefit requires the discharge of a legal liability: see Peel at 791-96. 

[18]        The learned trial judge reviewed s. 96 of the Employment Standards Act and concluded that it imposed no legal liability on Mr. Bentley of which ADP could relieve him.  With respect, I am unable to agree with that conclusion.

[19]        As this Court explained in British Columbia (Director of Employment Standards) v. Todd McMahon Inc., 2002 BCCA 179 [McMahon], one of the purposes of the Employment Standards Act is to ensure the fair treatment of employees.  That proposition is consistent with the purposes of the Act stated in s. 2.  Section 96 is aimed specifically at “protecting the wages of employees of companies and … does so by imposing personal liability on the directors and officers of a company” for those wages: McMahon, supra at para. 31.

[20]        The plain language of s. 96 states that the officer of a company is “personally liable for up to 2 months’ unpaid wages” of an employee.  It seems to follow that ADP’s 31 August 2001 payments representing wages Syntecor owed to its employees, discharged the legal liability of Mr. Bentley, as an officer of Syntecor, for those wages.  Nevertheless, the trial judge held:

… [T]here is no legal liability on Mr. Bentley to pay the amounts that were owing on August 31, 2001 as nothing would be payable by Mr. Bentley in that regard until there had been a determination by the Director of Employment Standards that Mr. Bentley was liable for unpaid amounts and, even then, the liability would only be to the Director of Employment Standards.

(2003 BCSC 798 at para. 31)

[21]        Part 10 of the Employment Standards Act sets out the way in which complaints about contraventions of the Act may be made (see s. 74) and the procedure for investigation of those complaints (see ss. 75-77 and 84-85).  It also describes the possible consequences of a determination by the Director of Employment Standards that a person has, in fact, contravened the Act (see ss. 78-79, 81-82 and 86). 

[22]        Part 11 of the Employment Standards Act deals with enforcement of the Act.  Section 87 provides that “unpaid wages constitute a lien, charge and secured debt” in favour of the Director of Employment Standards.  Section 91 permits the Director to file a determination or settlement order in any Supreme Court registry, at which time it becomes “enforceable in the same manner as a judgment of the Supreme Court in favour of the director for the recovery of a debt”.

[23]        Parts 12 and 13 of the Act prescribe the means by which the Director’s determinations may be reviewed.  Section 112 creates the right to appeal a determination to the Employment Standards Tribunal.  Sections 114 through 116 specify the options open to the Tribunal where an appeal is sought.  Section 110 amounts to a privity clause, purporting to insulate decisions of the Tribunal from judicial review.

[24]        Parts 10 through 13 of the Employment Standards Act are largely procedural in nature and no doubt designed to fulfill one of the purposes of the Act stated in s. 2, namely the provision of “fair and efficient procedures for resolving disputes over [its] application and interpretation”.  They make available a forum for the resolution of questions arising about the application of the Act, as well as means by which to enforce determinations made in relation to those questions.  They cannot, however, be read to shape legal rules expressed in plain language elsewhere in the Act.  A determination by the Director of Employment Standards that wages are unpaid and thus owed by an officer serves to confirm the liability created by s. 96 for enforcement purposes, not to create it. 

[25]        I find support for my position in s. 87 of the Employment Standards Act, which provides that unpaid wages constitute a “lien, charge and secured debt” against “all the real and personal property of the … person named in a determination” that dates “from the time the wages were earned”.  That section recognizes that an officer’s liability for unpaid wages under s. 96 arises when those wages “were earned or should have been paid”, not when the Director of Employment Standards determines that condition to have been met.

[26]        I am accordingly of the view that the trial judge erred in holding that Mr. Bentley had no liability under s. 96 of which ADP could relieve him until the Director made a determination.

[27]        The next question is the extent of the liability of which ADP relieved Mr. Bentley by its payments.  Mr. Bentley submits that even if ADP’s payments relieved him of liability for unpaid wages, they could not have relieved him of liability for severance pay.  He says that he “was not liable for severance pay of the former employees of Syntecor once the company assigned itself into bankruptcy” because of the operation of s. 96(2) of the Employment Standards Act.  He relies on Archibald (Re), [2000] B.C.E.S.T.D. No. 134 (QL) [Archibald], which holds that s. 96(2) prevents any employee from claiming severance pay as against a director or officer once the corporation has been formally declared insolvent.

[28]        The fundamental rule of statutory interpretation is that described by Elmer Driedger in Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at 87:

… [T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

In this regard, see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 at para. 26 and the cases cited there.

[29]        Subsection 96(2) provides that a director or officer “is not personally liable” for severance pay “if the corporation … is subject … to a proceeding under an insolvency Act”.  This provision creates an exception to the general rule contained in s. 96(1) that directors and officers are “personally liable for up to 2 months’ unpaid wages” of each employee of the corporation, and must be construed with the aim of s. 96 in mind, namely the protection of employees’ wages.

[30]        In my view, an interpretation of s. 96(2) that relieves directors and officers of liability for severance pay in the event of the corporation’s subsequent assignment in bankruptcy runs contrary to the purpose of s. 96 and of the Employment Standards Act more generally.  Such an interpretation would retroactively absolve directors and officers of the liability for severance pay created by s. 96(1), and, in so doing, tempt those faced with such liability to cause the corporation to make an assignment in bankruptcy.  It is difficult to conceive of why the legislature would have intended the liability of directors and officers for outstanding severance pay to depend on subsequent changes in the state of the corporation’s finances.

[31]        Archibald, supra reasons that the legislature might have intended the liability of directors and officers for outstanding severance pay to depend on changes in the corporation’s finances on the basis that “once the corporation enters bankruptcy … directors and officers would only be entitled to claim indemnity in concert with all other general creditors” (para. 25).  With respect, this explanation ignores the fact that the Employment Standards Act is aimed at “fair treatment of employees and employers” (s. 2) and protection of employees’ wages, not protection of corporate directors and officers.

[32]        On a proper reading, s. 96(2) relieves a director or officer of liability for unpaid severance pay only if it becomes payable at a time when “the corporation is in receivership or is subject to action under section 427 of the Bank Act (Canada) or to a proceeding under an insolvency Act”.  In this way, the provision ensures that employees entitled to severance pay (i.e., wages in lieu of notice) receive protection of those wages equal to that afforded to employees who continue to work until the corporation’s bankruptcy.

[33]        I would conclude on the foregoing basis alone that ADP’s payments relieved Mr. Bentley of liability for both unpaid wages and severance pay notwithstanding Syntecor’s subsequent assignment in bankruptcy.  However, I also note that the proper focus of the “negative” benefit analysis is whether the plaintiff discharged the defendant’s liability, not whether that liability might have been discharged subsequently and by some other means: see Peel, supra at 790.  That narrow focus is consistent with the Supreme Court of Canada’s dictum in Peter, supra at 990 that “a straightforward economic approach” is to be taken to the benefit-detriment analysis.  On that view of the matter, it is irrelevant whether, under s. 96(2), Syntecor’s subsequent assignment in bankruptcy would have relieved Mr. Bentley of liability for severance pay.  The nature of the benefit that accrued to him on 31 August 2001 would not change.

[34]        The remainder of the test for unjust enrichment can be dealt with swiftly.  As to the second element, there can be no doubt that ADP suffered a deprivation corresponding to Mr. Bentley’s benefit by way of its 31 August 2001 payments.  Specifically, it was left $59,583.35 out of pocket with no prospect of recovery from Syntecor.

[35]        With respect to the third element of the test, the juristic reason analysis, a two-part approach is to be taken: Garland, supra at para. 44.  The first question is whether there is a juristic reason from an established category that should deny recovery.  The established categories include “a contract ([Pettkus, supra]), a disposition of law ([Pettkus]), a donative intent ([Peter, supra]), and other valid common law, equitable or statutory obligations ([Peter])”: Garland at para. 44.

[36]        In this case, the only established category that might justify Mr. Bentley’s enrichment is that of contract.  However, the contract in this case was between ADP and Syntecor, not ADP and Mr. Bentley, and in any event did not require ADP to make any payments unless Syntecor had made available “sufficient, good funds” to cover those payments.  The enrichment of Mr. Bentley at ADP’s expense occurred in the context of the contractual relationship between ADP and Syntecor, but was not required by their contract.  It was the result of Syntecor instructing ADP to make the 31 August 2001 payments notwithstanding knowledge that it could not fund those payments as required by the CFA Agreement.

[37]        The second part of the juristic reason analysis requires the court to consider the reasonable expectations of the parties as well as public policy considerations.  If consideration of these two factors yields a determination that there was no juristic reason for the enrichment, recovery should be allowed.  See Garland, supra at para. 46. 

[38]        With respect to reasonable expectations, Mr. Bentley’s own evidence is that he was not aware of the agreement between ADP and Syntecor for payroll services prior to the commencement of these proceedings.  As such, he could have had no expectation, reasonable or otherwise, that ADP would bear responsibility for wages and severance pay Syntecor was unable to pay itself, particularly when it is he whom the Employment Standards Act makes liable for such amounts.

[39]        Public policy considerations also support ADP’s recovery.  The British Columbia legislature has seen fit to impose liability on directors and officers for the unpaid wages of a corporation’s employees.  This is a predictable risk against which directors and officers may protect themselves by way of liability insurance.  I can see little sense in allowing Mr. Bentley to escape the responsibility imposed by the legislature and of which he, when he undertook the responsibilities and obtained the benefits of being an officer of Syntecor, ought to have been well aware by obliging ADP to finance Syntecor’s payroll. 

[40]        Additionally, there is the fact that Syntecor, its banker and many of its directors, officers and employees, seem to have been aware of Syntecor’s funding problems, on account of which approximately two-thirds of Syntecor’s employees had been laid off as of 15 August 2001, unbeknownst to ADP.  ADP was advised neither that Syntecor’s 17-31 August 2001 payroll represented largely severance pay for those employees, nor that the debit advice needed to fund that payroll might not be honoured.  It would seem inequitable to allow Mr. Bentley to benefit from the corporation of which he was an officer having kept ADP in the dark.


[41]        In the result, I would allow the appeal and award ADP judgment against Mr. Bentley for $59,583.35.  In accordance with Atlas Cabinets and Furniture Ltd. v. National Trust Co. (1990), 45 B.C.L.R. (2d) 99 (C.A.), I would award pre-judgment interest on that amount calculated at the rates set by the Registrar from time to time from 31 August 2001.

“The Honourable Madam Justice Huddart”

Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

[42]        I have had the opportunity of reviewing in draft the reasons of Madam Justice Huddart.  I have concluded, however, that the appeal should be dismissed, for the reasons that follow. 

[43]        This appeal is from a judgment dismissing the claim of the appellant, Canadian-Automatic Data Processing Services Ltd. (“ADP”) against the respondent, Robert Bentley, in the amount of $59,583.35 plus interest, arising from payroll payments made by ADP to employees of Syntecor Limited (“Syntecor”) on 31 August 2001.  ADP’s debit advice to Syntecor’s bank for payment was returned due to insufficient funds and Syntecor made an assignment into bankruptcy on 26 September 2001.

[44]        Mr. Bentley was the corporate secretary of Syntecor at the material time.  The claim against him sounds in unjust enrichment based on the liability of directors and officers of a corporation for unpaid wages pursuant to s. 96 of the Employment Standards Act, R.S.B.C. 1996, c. 113.

[45]        ADP obtained a default judgment against Syntecor and the claim against a co-defendant, Debashis Patra, was settled.  The action proceeded against Mr. Bentley to a summary trial under Rule 18A of the Supreme Court Rules.

[46]        The summary trial judge dismissed the action on the grounds that: 1) ADP failed to prove that it had a legal obligation to make the payment for which it sought reimbursement; 2) Mr. Bentley did not have any direct liability for the payment of wages; and 3) Mr. Bentley had not been unjustly enriched by ADP’s payment.  Finally, the trial judge concluded that any personal liability of Mr. Bentley for unpaid wages ended with Syntecor’s assignment in bankruptcy.

[47]        This case was tried summarily on limited affidavit evidence.  The limited evidence may reflect exigencies of the cost of litigation relative to the amount in issue. Nonetheless, it causes difficulty where, as here, the claim is a novel one with precedent-setting implications.  In particular, the central role of Syntecor's bank is largely unexplained.


[48]        ADP carries on the business of a supplier of payroll-related data processing services including the processing and payment of employee salary cheques.  It contracted, on ADP's standard form, to process Syntecor’s payroll.  Syntecor agreed to pre-fund the amount of payroll payments by direct debit two days before ADP issued the payroll cheques.  ADP accepted the direct debit procedure, notwithstanding that its standard form also provided other options of pre-funded wire transfers or pre-funded certified cheques.  The contract confirmed that ADP had no obligation to process the payroll if the amount was not pre-funded as required.

[49]        Syntecor was a “start-up” company incorporated under the Canada Business Corporations Act, R.S.C. 1985, c. C-44 and registered extra-provincially in British Columbia.  It was in the business of providing application services to clients in the technology industry.  Mr. Bentley was Syntecor's chief technical officer, advising the company on technical matters.  He was appointed a director and secretary of the company.  At all material times he was unaware of the arrangements between ADP and Syntecor which fell under the responsibilities of Paula Mack, Syntecor’s office and payroll administrator.  All employees reported to the chief operating officer, Debashis Patra.  Ms. Mack reported to Mr. Patra and Robert Wilson, the London based president of Syntecor, and not to Mr. Bentley.

[50]        Syntecor was an affiliate of a company based in London, England which funded Syntecor’s payroll by wire transfer into Syntecor’s account at the Royal Bank of Canada in Vancouver.  According to the affidavit of Ms. Mack, the funds from the London company to cover payroll often arrived late and the bank allowed Syntecor to operate on an unauthorized overdraft position for one or two days.

[51]        In early August, the directors of Syntecor became aware that funding from the London company would soon run out and they terminated the employment of approximately two-thirds of Syntecor’s employees as of 15 August 2001.  Mr. Bentley continued to work for Syntecor as a computer programmer until 31 August 2001.  He intended to resign as a director and officer on 17 August 2001 but through inadvertence, his letter of resignation referred only to his position as a director and, contrary to his intention, he remained an officer thereafter. 

[52]        The issues relate to Syntecor’s 31 August 2001 payroll.  Sometime after the payroll for the period of August 17 to 31, 2001 had been sent to ADP, Ms. Mack was informed that Syntecor’s funding from the London company might not be forthcoming and Robert Wilson, the London based president and chief executive officer of Syntecor so informed the bank.  The bank agreed to cover the payroll amount over the period of the long weekend of August 2001. 

[53]        ADP processed its debit advice for the payroll through Syntecor’s bank on 28 August 2001.  If, as deposed, the bank had agreed to fund Syntecor’s overdraft through 31 August 2001, it is not clear why the bank failed to honour ADP’s debit advice of 28 August and why a claim by ADP was not pursued against the bank. When the funds from London were not forthcoming Ms. Mack believed that it was the bank that was liable for the amount of the payroll “because they had cleared the amount back on August 31, 2001.”  Apparently ADP did not advise Ms. Mack that it was not reimbursed for the payroll until October 2001, and it did not demand payment from Mr. Bentley until 27 February 2002.


[54]        The issue is whether in these circumstances ADP can maintain a claim for unjust enrichment against Mr. Bentley.

[55]        The modern doctrine of unjust enrichment in Canada is delineated by Supreme Court of Canada jurisprudence.  The trial judge referred to Peel, supra, where McLachlin J. (as she then was) referred to the principles underlying the doctrine in all cases of unjust enrichment, as stated in Pettkus, supra,.  They are: (i) benefit to the defendant; (ii) corresponding detriment to the plaintiff; and (iii) the absence of any juristic reason for the defendant’s retention of the benefit.  The application of these principles has been called the principled approach which McLachlin J., at p. 784, contrasted with “the traditional category approach”.  The category approach involved “looking to see if the case fits into any of the categories of cases in which previous recovery has been allowed, and then applying the criteria applicable to a given category to see whether the claim is established.”

[56]        In Peel, supra McLachlin J. considered the tension between the principled and category approaches at length and concluded at p. 786:

This case presents the Court with the difficult task of mediating between, if not resolving, the conflicting views of the proper scope of the doctrine of unjust enrichment.  It is my conclusion that we must choose a middle path; one which acknowledges the importance of proceeding on general principles but seeks to reconcile the principles with the established categories of recovery; one which charts a predictable course without falling into the trap of excessive formalism; one which recognizes the importance of the right to choose where to spend one’s money while taking account of legitimate expectations and what, in the light of those expectations, is fair.

The Supreme Court of Canada has recently revisited the jurisprudence in Garland, supra Iacobucci J., speaking for the Court, affirmed the middle path outlined in Peel which seeks to achieve a balance between the principled and category approaches. In Garland, supra the issue turned on whether an unlawful late payment penalty on bills for regulated natural gas service was a benefit to Consumers’ Gas or to its customers.  The law is settled that a benefit can include sparing a defendant an expense which he would otherwise have incurred; an issue here is whether Mr. Bentley has been saved from such a "negative benefit".

[57]        The obligation of corporate directors and officers under the Employment Standards Act is a statutory exception to the general rule that the separate legal personality of a corporation insulates principals of the company from liability for its debts.  The justification for this exception is the particular vulnerability of employees compared to other creditors.  This was recognized in Barrette v. Crabtree Estate, [1993] 1 S.C.R. 1027, 101 D.L.R. (4th) 66, 10 B.L.R. (2d) 1, where L’Heureux-Dubé J., speaking for the Court at pp. 1042-3, underlined the point with a reference from a leading text:

      Iacobucci, Pilkington and Prichard ... justify the protection at issue here by the special vulnerability of employees as compared with other creditors of the corporation:

This liability is an intrusion on the principle of corporate personality and limited liability, but it can be justified on the grounds that directors who authorize or acquiesce in the continued employment of workers when the corporation is not in a position to pay them should not be able to shift the loss onto the shoulders of the employees.  Other creditors who supply goods and services to a failing corporation are not entitled to this kind of preference, but neither are they as dependent on the corporation as employees, nor as vulnerable.

(Canadian Business Corporations (1977), at p. 327.)

[Emphasis added]

[58]        ADP’s claim represents an equitable extension of the statutory exception to other creditors of the corporation who have an unsatisfied debt for wages paid to employees of the corporation on its behalf.  The basic question is whether equity should aid such creditors who are not within the protection of the statute. 

[59]        The analytical framework, following Peel, supra and Garland, supra involves benefit to the defendant; detriment to the plaintiff; and absence of juristic reason for the benefit.  In the discussion that follows, I assume that ADP's loss is a detriment to it within the second requirement and concentrate the analysis on the first and third prongs of the test.

[60]        ADP’s only obligation with respect to payment of wages was to Syntecor in contract: it had no legal obligation to the Syntecor employees who were third parties to the contract.  The contract did not require ADP to pay the payroll unless the payments were funded by Syntecor at least two days in advance.  Either ADP waived that requirement and issued the payroll cheques without pre-funding, or it relied on the debit advice to the bank on 28 August 2001, three days before it paid out the payroll.  According to Ms. Mack’s affidavit, the bank had agreed to fund an overdraft until 31 August and it is not clear why it was allowed to dishonour ADP’s debit advice apparently received before the overdraft agreement expired.

[61]        There is no doubt that ADP's payment conferred a benefit on Syntecor, which had the primary contractual liability for the payroll.  The question is whether it also conferred a benefit on Mr. Bentley.  Benefit to the defendant and obligation of the plaintiff are jurisprudentially linked.  Before the trial judge, the parties accepted the proposition stated by Hall J. (as he then was) in Dowson, supra that for a payment to be recoverable, it must have been made under compulsion of law.  The trial judge repeated the following passage from Goff and Jones, The Law of Restitution, 3d ed. (London: Sweet & Maxwell, 1986), on which Hall J. had relied in Dowson, supra as a summary of the position:

To succeed in this claim, however, the plaintiff must satisfy certain conditions. He must show (1) that he has been compelled by law to make the payment; (2) that he did not officiously expose himself to the liability to make the payment; (3) that his payment discharged a liability of the defendant; and (4) that both he and the defendant were subject to a common demand by a third party, for which, as between the plaintiff and the defendant, the latter was primarily responsible.

[62]        In this Court the accuracy of Goff and Jones’ summary was questioned because the law in Canada and the law of England have diverged, and a legal obligation to pay is not an essential requirement under the Canadian jurisprudence.  McLachlin J. discussed this aspect at length in Peel.  In the result, she concluded at p. 796 that the Canadian jurisprudence accepted some relaxation of the traditional requirement of a discharge of a legal obligation, limited to circumstances of “incontrovertible benefit” – i.e. where it is clear that had the plaintiff not paid, the defendant would have done so; otherwise the benefit is not incontrovertible. 

[63]        This case adds an additional dimension because the involvement of the bank raises two possibilities casting doubt on the incontrovertibility of any benefit to Mr. Bentley from ADP’s payment.  If, as Ms. Mack believed, Syntecor’s overdraft protection was still in place, should not the bank have honoured ADP’s debit advice received before the overdraft expired?  If the overdraft did not support the debit advice, then ADP failed to confirm the pre-funding that it was entitled to require for its protection under its contract with Syntecor.  Under the first alternative, ADP has not conferred an incontrovertible benefit upon Mr. Bentley, but rather a benefit on the bank by declining to enforce its obligation to honour the debit advice.  It would be a radical extension of unjust enrichment to permit the bank to maintain a claim against Mr. Bentley if it had honoured ADP’s debit advice in the ordinary course of its business. 

[64]        Under the second alternative, ADP's payment at a minimum avoided an immediate financial crisis over non-payment that would have been precipitated if the payroll had not been met.  The reaction of Syntecor's London affiliate and the bank to such a financial emergency is unknown, but I do not think that in those circumstances it is incontrovertible that liability for payment would have been brought ultimately to Mr. Bentley's door.  Any doubt about his ultimate liability undermines the incontrovertibility of any benefit he may have received.

[65]        The statutory scheme under which directors’ and officers’ liability is imposed also casts doubts on the incontrovertibility of Mr. Bentley's potential liability. Liability arises under s. 96(1) of the Employment Standards Act which reads:

96 (1) A person who was a director or officer of a corporation at the time wages of an employee of the corporation were earned or should have been paid is personally liable for up to 2 months' unpaid wages for each employee.

[66]        ADP submits that this provision does not distinguish between the corporation and its officers and directors, and that the personal liability of directors and officers is equally as direct as that of the corporation itself.  In my view, however, the corporation has the primary obligation to pay the wages when due.  The liability of directors and officers only arises when the wages are "unpaid", plainly when the corporation has defaulted on its primary obligation to pay them.  It is therefore a secondary liability, contingent on the corporation's default, and not the same direct liability as that of the corporation.

[67]        The mechanism for enforcing the s. 96 obligation is through a determination by the Director of Employment Standards pursuant to s. 79(1) of the Act, requiring a person directed by the determination to pay wages to an employee.  Section 82 provides that once a determination is made, an employee can commence an action to recover wages only if the Director has consented in writing or the determination has been cancelled.  Section 87(1) provides that unpaid wages subject to statutory recovery are a charge against all the recent real and personal property of the employer (or other person named in a determination) which takes priority over all other charges including claims of the government and its agencies including the Workers’ Compensation Board and securities under the Personal Property Security Act, R.S.B.C. 1996, c. 359, excluding only priority claims of mortgagees of real property.  The scheme of the statute thereby establishes an administrative procedure whereby the Director may take summary measures for the payment of wages with an elevated priority over most other creditors.  The Director's powers are permissive rather than mandatory which imparts an element of discretion in enforcement.  It is well established that where an Act creates an obligation, and enforces the performance in a specified manner, that performance cannot be enforced in any other manner: Doe d. Rochester v. Bridges (1831), 1 B. & Ad. 847, 109 E.R. 1001; see also Barraclough v. Brown, [1897] A.C. 615.

[68]        In this case, the payment by ADP has short-circuited the statutory enforcement procedures under which Mr. Bentley would have been entitled to an opportunity to respond or to a hearing: Employment Standards Act, s. 77; Mitchell v. Manitoba (Department of Labour, Employment Standards Division) (1977), [1978] 1 W.W.R. 237, 82 D.L.R. (3d) 339.  In proceeding by way of court action, ADP may have deprived Mr. Bentley of raising any policy arguments that may be appropriately considered by the Director or the Employment Standards Tribunal.  ADP further deprived Mr. Bentley of any benefit he may have received through the statutory priority of the claims to Syntecor’s assets.  I do not think that the scheme of the Act is intended to undermine the contractual obligation of the corporation and its assets as the primary source for payment of that obligation. 

[69]        In summary, the general scheme of enforcement set out in Part 11 of the Employment Standards Act and the discretionary powers of the Director raise doubts about the reality and extent of any ultimate liability of Mr. Bentley for unpaid wages, if ADP had not paid the payroll.  Accordingly, I do not think that it is incontrovertible that Mr. Bentley would have been obligated to do so.  In my respectful view, the trial judge was correct in dismissing the action on the ground that ADP had failed to prove that the payment conferred a benefit on Mr. Bentley within the authorities.  But even if ADP can overcome the obstacle of an incontrovertible benefit, I think its claim must fail on the issue of juristic reason.

ii)   Absence of Juristic Reason for the Defendant’s Retention of the Benefit

[70]        The Supreme Court has consistently taken a "straightforward economic approach" to both questions of enrichment of the defendant and deprivation of the plaintiff. Moral and policy arguments are to be considered as part of the juristic reason analysis.  In Garland, supra Iacobucci J. summarized the proper approach to this prong of the test as follows, at paras. 44 to 46:

44    ... [T]he proper approach to the juristic reason analysis is in two parts. First, the plaintiff must show that no juristic reason from an established category exists to deny recovery. By closing the list of categories that the plaintiff must canvass in order to show an absence of juristic reason, Smith's objection to the Canadian formulation of the test that it required proof of a negative is answered. The established categories that can constitute juristic reasons include a contract (Pettkus, supra), a disposition of law (Pettkus, supra), a donative intent (Peter, supra), and other valid common law, equitable or statutory obligations (Peter, supra). If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis.

45    The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. As a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. This stage of the analysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery.

46    As part of the defendant's attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations. It may be that when these factors are considered, the court will find that a new category of juristic reason is established. In other cases, a consideration of these factors will suggest that there was a juristic reason in the particular circumstance of a case but which does not give rise to a new category of juristic reason that should be applied in other factual circumstances. In a third group of cases, a consideration of these factors will yield a determination that there was no juristic reason for the enrichment. In the latter cases, recovery should be allowed. The point here is that this area is an evolving one and that further cases will add additional refinements and developments.

[Emphasis added]

I think that this case is outside the established categories of juristic reason and Mr. Bentley therefore has a de facto burden of proof to show a reason why the enrichment should be retained.  This involves the reasonable expectations of the parties, and public policy considerations.  

[71]        This claim is novel and there is no evidence that it was within the reasonable expectations of either party.  ADP’s expectations can be inferred from the terms of its contract which relied on pre-funding to protect it from risk of loss.  There is no evidence it relied on directors’ and officers’ statutory obligations.  Mr. Bentley was unaware of the arrangement between ADP and Syntecor and there is no basis for concluding he ought to have expected such a claim.

[72]        In my view, policy provides an even stronger reason to deny ADP’s claim than the parties' reasonable expectations.  The general rule is that corporate officers are not liable for the corporation’s debts.  The separate legal personality of a corporation and its sole liability for its debts are fundamental to our economic system.  The liability of directors and officers for unpaid wages is a statutory exception to the general rule, intended for the protection of employees, not other creditors.  Geoffrey England, Innes Christie and Merran Christie, Employment Law in Canada, looseleaf, 3d ed. (Toronto: Butterworths, 1998), at para. 19.105, note that employment standards agencies are given discretion in pursuing directors and officers, based on the likelihood of recovery and the conduct of a director or officer.  This discretion has a legitimate policy rationale which tempers the statutory obligation.  The courts are not in a position to replicate the Director’s exercise of statutory discretion under unjust enrichment jurisprudence.  To extend liability beyond the statutory scheme to other creditors erodes the general rule of corporate responsibility, for the benefit of commercial enterprises undertaking known business risks rather than the vulnerable group of employees the legislation was intended to protect. If ADP's claim is allowed, the exception will be extended to third parties funding wage payments in the ordinary course of their business.  The scheme of the Employment Standards Act does not go that far, and any extension must rest on equitable principles.  In my view, the statutory provisions reflect the legislative recognition of a unique vulnerability of employees.  Sophisticated enterprises taking commercial risks, such as ADP, are not in the same category.

[73]        ADP's loss was a foreseeable commercial risk, recognized in the contract. The contract required Syntecor to pre-fund the payroll two days before payment and ADP's failure to secure that pre-funding contributed to its loss. 

[74]        The unjust enrichment remedy is based on equitable principles of fairness embraced by the term “juristic reason”.  This case represents a new category for the doctrine, and the question becomes whether the principled approach should extend the remedy to include it.  In my view, extension should depend upon whether it is fair and equitable to shift the loss from ADP to Mr. Bentley.  ADP does not share the unique vulnerability of employees that the Employment Standards Act was intended to address.  It simply suffered a loss from a foreseeable commercial risk, partly because it failed to effectively invoke its contractual protection against that risk.  Mr. Bentley did not contribute personally to ADP's loss.  There is no suggestion that he was personally involved in any deception of ADP.  His liability exposure is entirely statutory.   In these circumstances, I am satisfied that Mr. Bentley has discharged the de facto burden of proof and there is juristic reason to deny ADP’s claim.


[75]        In my opinion, ADP’s claim does not satisfy two of the three requirements for an unjust enrichment remedy.  ADP has failed to establish that it conferred an "incontrovertible benefit" on Mr. Bentley. I am also persuaded that there is juristic reason not to extend the remedy of unjust enrichment to claims against corporate directors and officers in favour of creditors who are not within the statutory protection of the Employment Standards Act.  In view of these conclusions, I do not find it necessary to consider the effect of Syntecor's bankruptcy on ADP's claim.

[76]        I would dismiss the appeal.

“The Honourable Mr. Justice Mackenzie”

I agree:

“The Honourable Madam Justice Rowles”