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All I can say to that is that it is not how I read the judgment. Cullity J was doubtful that the case disclosed any "deemed or actual agency gain" which is one of the things that Soulos seems to require, but I think Cullity J was quite right to doubt, very diplomatically ([41]-[42]), whether that should be a requirement for all gain based claims.

I see nothing but good in the Cullity judgments, and I am puzzled as to why anyone but a restitution sceptic would be unhappy with them. I accept that he left himself open to the interpretation that he though waiver of tort is a cause of action but he did not have to decide that, nor I think did he.

Best,
L

On 7/5/06 23:11, "Rob Chambers" wrote:

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.