How have the courts interpreted the law of restitution against the taxing authority in the case of Empire?
British Columbia, Canada
The following excerpt is from Empire Life Insurance Co. v. Neufeld, 1998 CanLII 6630 (BC SC):
12. In contending that Empire has suffered no loss, counsel for the Neufelds cites Air Canada v. British Columbia (1989), 1989 CanLII 95 (SCC), 59 D.L.R. (4th) 161 at 193-94. There La Forest J. said in obiter that an airline which, like others, had passed an unconstitutional tax on to its customers could be said to have suffered no loss. The airlines would thus be unable to make out a claim of restitution against the taxing authority, even though the authority had been unjustly enriched, because the law of restitution is not intended to provide windfalls to plaintiffs that have suffered no loss. Counsel suggests that this reasoning is not to be confined to the mistaken discharge of tax liability but extended to any similar financial burden that might be viewed as a cost of doing business. Such costs, he says, are invariably passed on to consumers as it must be assumed has happened here.
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