Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Wed, 21 Jun 2006 10:07:54 -0400 |
| Re: |
Serhan v. Johnson & Johnson |
There was some discussion recently
about the decision of Cullity
J to certify a class action last year in Serhan v Johnson &
Johnson. John Swan has mentioned to me that the Divisional
Court has affirmed this decision, 2-1, applying the test whether it
was 'plain and obvious' that the claim could not succeed.
Contrary to my own interpretation of Cullity J’s
judgment, and in line with what Robert Chambers said, Cullity J was understood
as having held that waiver of tort is an independent cause of action.
The DC holds that it is not plain and obvious that this is incorrect,
with a good review of different academic theories on both sides. Also
a good review of the four-part test for constructive trusts in Soulos.
Lionel
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