Restitution Discussion Group Archives
| Sender: |
Robert Chambers |
| Date: |
Sun, 7 May 2006 21:11:42 -0600 |
| Re: |
Waiver of Tort |
Thanks, Lionel. I think Cullity
J's decision in Serhan Estate v Johnson & Johnson should
be read in light of the
subsequent decision of Ground J to grant leave to appeal from Cullity
J's certification.
Ground J said at [2004] OJ No 4580:
[1] On the hearing of this motion, counsel for the Plaintiffs
advised the court that it is his position that Justice Cullity certified
the class action based on the pleadings disclosing a cause of action,
being waiver of tort.
[2] It is agreed that Justice Cullity declined to certify
the class action on the basis of the nominate courts (sic) pleaded of
negligence, negligent and fraudulent misrepresentation, breach of Section
52(1) of the Competition Act and conspiracy as the applicability of all
such causes of action and the elements of causation and damage would have
to be determined on an individual basis.
[3] It is implicit in the Reasons of Justice Cullity
that he was not satisfied that the four criteria set out by Chief Justice
McLachlin in Soulos,
[1997] 2 S.C.R. 217, to satisfy a finding of constructive trust based
on wrongful conduct, as opposed to unjust enrichment, could be met in
the case at bar.
[4] The question of good reason to doubt the correctness
of Justice Cullity's Order and the existence of conflicting decisions
on the matter both centre on the issue of whether 'waiver of tort' constitutes
a cause of action in its own right or is a principle which is applied
to the choice of a plaintiff, having established an actionable wrong,
to seek a remedy by way of restitution, disgorgement or an accounting
rather than by way of damages to compensate the plaintiff for his or her
loss.
With best wishes, Begin forwarded message:
From: "lionel.smith" I thought Cullity J was clearly basing
his reasoning on the wrongs alleged by the plaintiffs, namely fraud
and negligent misrepresentation, and conspiracy, in Serhan,
and the same misreps plus breach of contract in Lewis
v Cantertrot. I agree that there is a difficult question whether
causes of action that are usually understood to depend on loss (and
that is true of fraudulent and negligent misrep) can support gain-based
claims (especially is this so of negligence). That was not resolved
in Serhan,
nor did Lewis v Cantertrot
purport to decide that there could be gain-based remedies for breach
of contract; both were effectively motions to strike out by the defendant.
But I agree with what I understand
to be a unanimous view so far, that such a claim, for the profits of
wrongdoing, is analytically distinct from a claim in unjust enrichment.
Distinct, in the sense that there needs to be a wrong established, which
is not true in unjust enrichment; distinct in that we can formulate
facts that would support one of the two claims, while not supporting
the other.
It is this distinctness that both Cullity
decisions are founded upon (see esp Serhan,
[27]-[28]). In both cases, as in Rosenfeldt v Olsen many years
ago, defendants tried to defeat a claim to the profits of wrongdoing
by noting that the plaintiffs had not suffered any deprivation that
corresponded to the defendants' gain (Serhan,
[26]-[28]; Lewis v Cantertrot,
[6]). Such a corresponding deprivation may well be (as I think it is,
though others don't) necessary for unjust enrichment; Cullity J did
not even need to decide that; what he decided, and I think he was quite
right, and I am not sure anyone so far disagrees, is that no deprivation
of the plaintiff is needed when the claim is one to the profits of a
wrong.
Rob
Date: 7 May 2006 8:36:49 pm GMT-06:00
To: Robert Chambers
Subject: Re: [RDG] Waiver of Tort
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