Another piece of news from Newfoundland was shared with me by Mr. Justice Geoffrey Gomery, namely the decision released in December by the Court of Appeal of Newfoundland and Labrador in Atlantic Lottery Corporation Inc.-Société des loteries de l’Atlantique v Babstock, 2018 NLCA 71 http://canlii.ca/t/hwj3m 

Over the past decade and more, Canadian common law courts have been asked to resolve a large number of cases as to the status of ‘waiver of tort’, particularly in the context of class actions. These are often cases in which the plaintiff (class) can show that the defendant did something unlawful, and profited thereby, but cannot necessarily prove loss. This decision is an important development in this context.

As with many of these cases, the issues are solely of law, relating to whether a class action can be ‘certified’ or allowed to proceed to trial where the facts will be found. The plaintiffs alleged that video lottery terminals operated by the defendant (an emanation of the provincial Crown) were run unlawfully, in breach of contract, tortiously (deceit, failure to warn), so as to generate unjust enrichment, and criminally, with some other things thrown in including whether waiver of tort is itself a cause of action. The issue was whether the facts, if proven, would disclose a cause of action or more than one.

While I do not agree with all of it, the majority judgment of Green JA is careful and scholarly. Conclusions include that it is not impossible to have a gain-based claim for negligence ([161]-[173], following John McCamus); nor is it impossible to have such a claim based on criminal wrongdoing ([218]-[228], following Graham Virgo and John McCamus). Lots of others are mentioned in both the majority and the dissent. Everything is phrased in that cautious way because the conclusion is that the claim should go to trial, not that it succeeds.

Experience shows that after certification, the parties settle, but not always. And this decision on certification is, of course, subject to appeal.

Lionel