Canada: Finding The Sweet Spot – An SCC Recalibration Of The Irrevocable Beneficiary And The Remedy For Unjust Enrichment

Last Updated: December 5 2018
Article by Michael MacIsaac and Aaron Stephenson

Most Read Contributor in Canada, November 2018

Moore v Sweet is a recent Supreme Court of Canada decision that arose out of a dispute over life insurance proceeds. It sheds light on the law of unjust enrichment and constructive trusts.


The Moores separated after 20 years of marriage. After they separated, Mr. and Ms. Moore orally agreed that Ms. Moore would continue paying the premiums under a policy of life insurance (the Policy) and she would remain the beneficiary. The Policy was not addressed in a subsequent separation agreement between the Moores.

Notwithstanding the Moores' oral agreement, Mr. Moore revoked Ms. Moore's designation and named Ms. Sweet the irrevocable beneficiary under the Policy.

Mr. Moore later passed away, resulting in an entitlement to proceeds under the Policy of $250,000. That sum was paid into court pending a judicial determination about who was entitled to it.

At first instance, the Ontario Superior Court of Justice held, in part, that Ms. Sweet would be unjustly enriched by the Policy proceeds and such proceeds were subject to a constructive trust in favour of Ms. Moore.

The Ontario Court of Appeal overturned the lower court's decision, holding instead that Ms. Sweet was entitled to the insurance proceeds.

Supreme Court of Canada

The Supreme Court of Canada allowed Ms. Moore's appeal affirming her entitlement to the insurance policy proceeds.

Côté J. (for the majority) considered the Supreme Court of Canada's earlier decisions dealing with unjust enrichment, which recognized an onus on the plaintiff to establish that (1) the defendant was enriched, (2) the plaintiff suffered a corresponding deprivation, and (3) the defendant's enrichment and the plaintiff's corresponding deprivation occurred in the absence of a juristic reason. If the plaintiff's onus was satisfied, the defendant could nevertheless defeat an unjust enrichment claim by demonstrating a "residual reason" for denying recovery, focussing on the parties' reasonable expectations or public policy.

Côté J. reasoned that Ms. Sweet was enriched by the insurance proceeds and Ms. Moore suffered a corresponding deprivation. She further reasoned that there was no juristic reason for the enrichment of Ms. Sweet. The legislation pursuant to which beneficiary designations are made was merely a mechanism for choosing a beneficiary. It did not deny the common law or equitable rights of others who may have rights to insurance proceeds, nor could it trump an unjust enrichment claim by a party deprived of a prior contractual entitlement to the insurance proceeds. An irrevocable designation was therefore not recognized by Côté J. as a juristic reason that would undermine Ms. Moore's unjust enrichment claim.

Nor was there a residual reason to deny recovery by Ms. Moore based on the parties' reasonable expectations or public policy.

Côté J. then considered the issue of remedy. She reasoned that a "personal" remedy (akin to a debt or monetary obligation) is the "default" remedy in a case of unjust enrichment. However, a "proprietary" remedy in the form of a constructive trust may be granted if a "personal" remedy would be inadequate and "the plaintiff's contribution that founds the action (i.e., the plaintiff's deprivation) is linked or causally connected to the property over which a constructive trust is claimed" (at para. 91).

The disputed insurance proceeds were recognized as being subject to a constructive trust in favour of Ms. Moore. Côté J. was satisfied that granting a constructive trust was appropriate because the insurance proceeds were "readily available to be impressed with a constructive trust" because they had been paid into court and that failing to grant a constructive trust would "create a risk that the money might be spent or accessed by other creditors in the interim" (at para. 93).

The dissenting judges reasoned that Ms. Moore (who was only ever a revocable beneficiary under the Policy) had no right to contest Mr. Moore's subsequent redesignation pursuant to which Ms. Sweet became the Policy's irrevocable beneficiary except by suing Mr. Moore for breach of contract.

Mr. Moore's breach of contract had resulted in a deprivation to Ms. Moore; however, Ms. Moore could not establish an unjust enrichment claim because her deprivation (the inability to enforce her contractual rights) did not correspond with Ms. Sweet's enrichment (entitlement to insurance proceeds).

In any event, the dissenting judges held that Mr. Moore's legislatively compliant designation of Ms. Sweet as the irrevocable beneficiary under the Policy was a juristic reason for Ms. Sweet's enrichment.

The dissenting judges therefore held that Ms. Moore had no right to the Policy proceeds but merely had a breach of contract claim to make against Mr. Moore's estate. They recognized that insurance proceeds are an entitlement of an insurance policy's beneficiary, irrespective of who pays the premium.


From the insurance industry's perspective, the Supreme Court of Canada's majority decision stands for the proposition that a legislatively compliant designation of a beneficiary is not determinative of the beneficiary's entitlement and, indeed, a claimant's prior oral agreement with the policy owner may be enough to undermine the beneficiary's entitlement.

An insurer with proceeds to pay out may therefore find itself hamstrung while a non-beneficiary claimant challenges the beneficiary's entitlement through the court system, potentially delaying the payment of insurance proceeds to a needy beneficiary. If faced with such a dispute, an insurer should give serious thought to paying the insurance proceeds into court (as was done in Moore v Sweet) to shield itself from a potential delay-based "bad faith" claim by the duly-designated beneficiary.

Furthermore, there has long been uncertainty in the law about when (if not always) an unjust enrichment claim will result in a constructive trust. The Supreme Court of Canada has now held that a constructive trust is not the "default" remedy in instances of unjust enrichment and has provided guidance about when a constructive trust should be recognized as an exception to the "default" rule.

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see

Law around the world

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Alexander Holburn Beaudin + Lang LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Alexander Holburn Beaudin + Lang LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions