RDG member nominated as Justice Minister

Lionel, On tort & gain-based awards: Look at, if you haven't seen it, 3com Corporation v. Zorin International Corporation, 2006 CanLII 18351 (ON C.A.) http://canlii.org/on/cas/onca/2006/2006onca 10410.html particularly at para. 57. It looks like the Ont CA wouldn't agree that there can't be a gain-based claim in tort, at least where we're dealing with intentional torts, although the statement in the case isn't restricted to intentional torts. "The appellants’ submission ignores the conceptual basis of tort law, which is restitutionary. The difference between the contract price and the price at which the appellants would otherwise have had to purchase the goods is a cost properly borne by the appellants." This was a deceit claim were the recovery where the recovery was the gain the plaintiff would not have made but for the tort, not the plaintiff's loss.On the evidence, there was no loss on this issue. 3Com sold the goods for $X based on the deceit. The price would have been higher, otherwise. As I understand the evidence, there was no evidence that the goods could have been sold for the higher price to anybody, so 3 Com didn't sustain any loss on the sale of these goods based on the evidence. It just didn't make as muchbecause on the sale. I suspect that was also the reality. There's nothing in the case to indicate waiver of tort was raised. I don't have it at my fingertips but there's a passaage in Maddaugh and McCamus specifically suggesting that waiver of tort might apply in a deceit-based claim. The description in M&M is literally the facts of 3Com. David -----Original Message----- From: owner- obligations@uwo.ca <mailto:owner-obligations@uwo.ca> [mailto:owner- obligations@uwo.ca] On Behalf Of Lionel Smith Sent: February 15, 2007 12:20 PM To: obligations@uwo.ca <mailto:obligations@uwo.ca> ; RDG Subject: ODG: Waiver of tort: Heward v. Eli Lilly & Co. This case is now on canlii, at http://www.canlii.org/on/cas/onsc/2007/ 2007onsc10228.html <http://www.canlii.org/on/cas/onsc/20 07/2007onsc10228.html> At [25] we find this: "In attempting to formulate coherent principles that would explain and rationalise past decisions to accommodate the relatively recent recognition of a general law of restitution, there is no doubt that the learned commentators have greatly contributed to, and will quite properly continue to influence, its development. However, as the reasons of Epstein J. indicate, their views have not been uniform despite the enviable degree of confidence with which they have sometimes been asserted." But it is not only the academics who get sideswiped: [14]: "The case for certifying the proceeding was very strongly, and comprehensibly, contested by counsel for the defendants on the basis of the evidence and the authorities. They left no stone unturned and, in my opinion, turned over quite a few that were extraneous to the case presented on behalf of the plaintiffs." Overall there is a good review of different road maps of restitution but because this is only a certification application, the judge does not need to pick one, only deciding that it is arguable that a claim in negligence might lead to a gain-based remedy, and [38] that "it is not plain and obvious that a claim based on waiver of tort must satisfy the three-part test for unjust enrichment". While he concludes that it is arguable that unjust enrichment can be established without showing any deprivation, he decides that in a case where the only facts pleaded involve negligence, there is no room for a separate claim in unjust enrichment. Unfortunately these class actions rarely go trial in Canada--they tend to settle after certification--so we may never get actual decisions on the points that he decided were arguable. Neil, what did you find objectionable in the judgment? Is it that you agreed with the BCSC in Reid, that there can be no gain-based claim for negligence? That may well be right, but Reid seems much less thorough than this judgment; Gerow J simply assumed there that all gain-based claims are claims in unjust enrichment (which in my view is inconsistent with Soulos v Korkontzilas). In the earlier discussion on the RDG of Cullity J's other judgments, some people read him as saying that waiver of tort is an independent cause of action; I don't think this new judgment is open to that criticism. He is not deciding whether waiver of tort is (a) a gain-based claim for a wrong or (b) part of unjust enrichment, but I don't think he can be read as saying that it is neither one. I do think that in [64] Cullity J. may have misunderstood Peter Birks' position. Lionel On 8/2/07 17:16, "Neil Guthrie" <NGuthrie@STIKEMAN.COM <mailto:NGuthrie@STIKEMAN.COM> > wrote:

Justice Cullity of the Ontario Superior Court is at it again, this time in Heward v. Eli Lilly & Co., which was released the day before yesterday (not yet posted to www.canlii.org <http://www.canlii.org> , but

or two). There the judge makes his most expansive comments to date on waiver of tort, expressing disagreement with the recent decision in Reid v. Ford Motor from British Columbia in finding that a remedy depends on the three-part test for unjust enrichment from Pettkus v.

Johnson & Johnson, the decision that made waiver of tort a live issue in Ontario -- and for which we also have Justice Cullity to thank. Neil Guthrie Tel : (416) 869-5230 Fax : (416) 947-0866 nguthrie@stikeman.com <mailto:nguthrie@stikeman.com> Stikeman Elliott LLP Barristers & Solicitors 5300 Commerce Court West 199 Bay Street Toronto, Ontario M5L 1B9 Tel: (416) 869-5500 www.stikeman.com <http://www.stikeman.com> Montréal * Toronto * Ottawa * Calgary * Vancouver * New York * London * Sydney

-- This message was delivered through the Obligations Discussion Group, an international mailing list devoted to all aspects of the law of obligations. To be added or deleted from the list please send a message to <obligations- request@uwo.ca>. To make a posting to all group members, send a message to <obligations@uwo.ca>. The list is run by Jason Neyers of the University of Western Ontario, tel. (+1) 519 661-2111 x. 88435,email <jneyers@uwo.ca>. The list is archived at <http://www.ucc.ie/law/odg/home.htm>. Archived messages are not to be cited in published works without prior approval of the author.

Jason,

That's changing the facts of the case and the evidence, as I = read it.=20 There was no evidence that the fraudsters would have paid the higher = price. The=20 fraud was designed to allow the fraudsters to qualify for the lower = price which=20 was an existing 3Com program. If we say they would have paid some higher = price,=20 on what basis? And what would it be?

The trial reasons are here h= ttp://canlii.org/on/cas/onsc/2004/2004onsc11105.html

Look = at paras 52=20 and 53 of the trial trial judgment - the rebates issue - and you'll see = how the=20 trial judge got around the problem. But then look at para 58 of the CA = judgment.=20 That means only one of the 3 rebates that made up the trial award was an = actual=20 loss. So, the rest is loss of profit for notional sales for which there = seens to=20 have been no evidence. Wouldn't the proper procedure have been to = discount=20 by the likelihood of the sales having been made, assuming here was = enough=20 evidence of a substantial enough possibility of = sales?

David

From: owner-obligations@uwo.ca=20 [mailto:owner-obligations@uwo.ca] On Behalf Of Jason=20 Neyers
Sent: February 26, 2007 10:10 AM
To:=20 davidcheifetz@rogers.com
Cc: obligations@uwo.ca;=20 'RDG'
Subject: Re: ODG: Waiver of tort

But there was a loss the price they would have gotten but for = the=20 deceit from the purcahser.

David Cheifetz wrote:

Lionel, 

=20 

On tort & gain-based awards: 

=20 

Look at, if you haven't seen it, 3com Corporation v. Zorin International 

Corporation, 2006 CanLII 18351 (ON C.A.) 

http://can= 

lii.org/on/cas/onca/2006/2006onca10410.html particularly at para. 

57.=20 

 

It looks like the Ont CA wouldn't agree that there can't be a gain-based 

claim in tort, at least where we're dealing with intentional torts, = 

although 

the statement in the case isn't restricted to intentional torts. "The 

appellants=92 submission ignores the conceptual basis of tort law, which = 

is 

restitutionary.  The difference between the contract price and the price = 

at 

which the appellants would otherwise have had to purchase the goods is a 

cost properly borne by the appellants."=20 

 

This was a deceit claim were the recovery where the recovery was the = 

gain 

the plaintiff would not have made but for the tort, not the plaintiff's 

loss.On the evidence, there was no loss on this issue. 3Com sold the = 

goods 

for $X based on the deceit. The price would have been higher, otherwise. = 

As 

I understand the evidence, there was no evidence that the goods could = 

have 

been sold for the higher price to anybody, so 3 Com didn't sustain any = 

loss 

on the sale of these goods based on the evidence. It just didn't make as 

muchbecause on the sale. I suspect that was also the reality. 

 

There's nothing in the case to indicate waiver of tort was raised. I = 

don't 

have it at my fingertips but there's a passaage in Maddaugh and McCamus 

specifically suggesting that waiver of tort might apply in a = 

deceit-based 

claim. The description in M&M is literally the facts of 3Com. 

 

David 

 

 

-----Original Message----- 

From: owner-obligations@uwo.ca <mailto:owner-obligations@uwo= 

.ca> 

[mailto:owner-obligations@uwo.ca<= 

/A>] On Behalf Of Lionel Smith 

Sent: February 15, 2007 12:20 PM 

To: obligations@uwo.ca <mailto:obligations@uwo.ca> = 

; RDG 

Subject: ODG: Waiver of tort: Heward v. Eli Lilly & Co. 

=20 

This case is now on canlii, at 

http:/= 

/www.canlii.org/on/cas/onsc/2007/2007onsc10228.html 

<ht= 

tp://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html>=20 

=20 

At [25] we find this: 

=20 

"In attempting to formulate coherent principles that would explain and 

rationalise past decisions to accommodate the relatively recent = 

recognition 

of a general law of restitution, there is no doubt that the learned 

commentators have greatly contributed to, and will quite properly = 

continue 

to influence, its development. However, as the reasons of Epstein J. 

indicate, their views have not been uniform despite the enviable degree = 

of 

confidence with which they have sometimes been asserted." 

=20 

But it is not only the academics who get sideswiped: 

=20 

[14]: "The case for certifying the proceeding was very strongly, and 

comprehensibly, contested by counsel for the defendants on the basis of = 

the 

evidence and the authorities. They left no stone unturned and, in my 

opinion, turned over quite a few that were extraneous to the case = 

presented 

on behalf of the plaintiffs." 

=20 

Overall there is a good review of different road maps of restitution but 

because this is only a certification application, the judge does not = 

need to 

pick one, only deciding that it is arguable that a claim in negligence = 

might 

lead to a gain-based remedy, and [38] that "it is not plain and obvious = 

that 

a claim based on waiver of tort must satisfy the three-part test for = 

unjust 

enrichment". While he concludes that it is arguable that unjust = 

enrichment 

can be established without showing any deprivation, he decides that in a 

case where the only facts pleaded involve negligence, there is no room = 

for a 

separate claim in unjust enrichment. 

=20 

Unfortunately these class actions rarely go trial in Canada--they tend = 

to 

settle after certification--so we may never get actual decisions on the 

points that he decided were arguable. 

=20 

Neil, what did you find objectionable in the judgment? Is it that you = 

agreed 

with the BCSC in Reid, that there can be no gain-based claim for = 

negligence? 

That may well be right, but Reid seems much less thorough than this 

judgment; Gerow J simply assumed there that all gain-based claims are = 

claims 

in unjust enrichment (which in my view is inconsistent with Soulos v 

Korkontzilas). In the earlier discussion on the RDG of Cullity J's other 

judgments, some people read him as saying that waiver of tort is an 

independent cause of action; I don't think this new judgment is open to = 

that 

criticism. He is not deciding whether waiver of tort is (a) a gain-based 

claim for a wrong or (b) part of unjust enrichment, but I don't think he = 

can 

be read as saying that it is neither one. 

=20 

I do think that in [64] Cullity J. may have misunderstood Peter Birks' 

position. 

=20 

Lionel 

 =20 

=20 

 

On 8/2/07 17:16, "Neil Guthrie" <NGuthrie@STIKEMAN.COM 

<mailto:NGuthrie@STIKEMAN.COM>= 

; > wrote: 

=20

Justice Cullity of the = 

Ontario Superior Court is at it again, this=20 

time in Heward v. Eli Lilly & Co., which was released the day before = 

 

yesterday (not yet posted to www.canlii.org <http://www.canlii.org> , but

presumably in a day=20

or two).  There the judge = 

makes his most expansive comments to date on=20 

waiver of tort, expressing disagreement with the recent decision in=20 

Reid v. Ford Motor from British Columbia in finding that a remedy=20 

depends on the three-part test for unjust enrichment from Pettkus v.

Becker.

In related news, the Supreme = 

Court of Canada is considering an=20 

application for leave to appeal the refusal of the Ont. CA to hear the

appeal in Serhan v.

Johnson & Johnson, the = 

decision that made waiver of tort a live issue=20 

in Ontario -- and for which we also have Justice Cullity to thank. 

 

 

=20 

Neil Guthrie 

Tel : (416) 869-5230 

Fax : (416) 947-0866 

nguthrie@stikeman.com <mailto:nguthrie@stikeman.com>= 

;=20 

 

Stikeman Elliott LLP 

Barristers & Solicitors 

5300 Commerce Court West 

199 Bay Street 

Toronto, Ontario M5L 1B9 

Tel: (416) 869-5500 

www.stikeman.com <http://www.stikeman.com>=20 

 

Montr=E9al * Toronto * Ottawa * Calgary * Vancouver * New York * London=20 

* Sydney

 

 

 

-- 

 

This message was delivered through the Obligations Discussion Group, an = 

international mailing list devoted to all aspects of the law of = 

obligations. To be added or deleted from the list please send a message = 

to <obligations-request@uwo.ca= 

>. To make a posting to all group members, send a message to <obligations@uwo.ca>. The = 

list is run by Jason Neyers of the University of Western Ontario, tel. = 

(+1) 519 661-2111 x. 88435,email <jneyers@uwo.ca>. The list is = 

archived at <http://www.ucc.ie/law/odg= 

/home.htm>. Archived messages are not to be cited in published = 

works without prior approval of the author.

--=20 

Jason Neyers 

January Term Director 

Associate Professor of Law 

Faculty of Law 

University of Western Ontario 

N6A 3K7 

(519) 661-2111 x. 88435

. To = make a posting to all group members, send a message to = . The list is run by = Jason Neyers of the University of Western Ontario, tel. (+1) 519 = 661-2111 x. 88435,email . The = list is archived at = . Archived messages are not to be = cited in published works without prior approval of the author. =20 --=20 Jason Neyers January Term Director Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435=20 ____________________________________________________________________ = This message was delivered through the Restitution Discussion Group, an = international internet LISTSERV devoted to all aspects of the law of = unjust enrichment. To subscribe, send "subscribe enrichment" in the body = of a message to . To unsubscribe, send = "signoff enrichment" to the same address. To make a posting to all group = members, send to . The list is run by Lionel = Smith of McGill University, . ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ------_=_NextPart_001_01C75A17.775D0EB9 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

I’m confused; did anyone say there can’t be a gain-based claim in tort = (as opposed to arguments about whether specific torts (especially = negligence) will support it)?

Lionel

David Cheifetz = wrote:

Lionel,

On tort & gain-based = 

awards:

Look at, if you haven't seen it, 3com = 

Corporation v. Zorin International

Corporation, 2006 CanLII 18351 (ON = 

C.A.)

http://can= 

lii.org/on/cas/onca/2006/2006onca10410.html particularly at = 

para.

57.

It looks like the Ont CA wouldn't agree that = 

there can't be a gain-based

claim in tort, at least where we're dealing = 

with intentional torts, although

the statement in the case isn't restricted to = 

intentional torts. "The

appellants’ submission ignores the = 

conceptual basis of tort law, which is

restitutionary.=A0 The difference between the = 

contract price and the price at

which the appellants would otherwise have had = 

to purchase the goods is a

cost properly borne by the appellants." =

This was a deceit claim were the recovery where the recovery was = 

the gain

the plaintiff would not have made but for the = 

tort, not the plaintiff's

loss.On the evidence, there was no loss on = 

this issue. 3Com sold the goods

for $X based on the deceit. The price would = 

have been higher, otherwise. As

I understand the evidence, there was no = 

evidence that the goods could have

been sold for the higher price to anybody, so = 

3 Com didn't sustain any loss

on the sale of these goods based on the = 

evidence. It just didn't make as

muchbecause on the sale. I suspect that was = 

also the reality.

There's nothing in the case to indicate waiver of tort was = 

raised. I don't

have it at my fingertips but there's a = 

passaage in Maddaugh and McCamus

specifically suggesting that waiver of tort = 

might apply in a deceit-based

claim. The description in M&M is = 

literally the facts of 3Com.

David

-----Original Message-----

From: owner-obligations@uwo.ca <mailto:owner-obligations@uwo= 

.ca>

[mailto:owner-obligations@uwo.ca<= 

/a>] On Behalf Of Lionel Smith

Sent: February 15, 2007 12:20 = 

PM

To: obligations@uwo.ca <mailto:obligations@uwo.ca> = 

; RDG

Subject: ODG: Waiver of tort: Heward v. Eli = 

Lilly & Co.

This case is now on canlii, = 

at

http:/= 

/www.canlii.org/on/cas/onsc/2007/2007onsc10228.html<ht= 

tp://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html> = 

=A0
At [25] we find this:
 
"In attempting to formulate coherent = 

principles that would explain and
rationalise past decisions to accommodate the = 

relatively recent recognition
of a general law of restitution, there is no = 

doubt that the learned
commentators have greatly contributed to, and = 

will quite properly continue
to influence, its development. However, as = 

the reasons of Epstein J.
indicate, their views have not been uniform = 

despite the enviable degree of
confidence with which they have sometimes = 

been asserted."
 
But it is not only the academics who get = 

sideswiped:
 
[14]: "The case for certifying the = 

proceeding was very strongly, and
comprehensibly, contested by counsel for the = 

defendants on the basis of the
evidence and the authorities. They left no = 

stone unturned and, in my
opinion, turned over quite a few that were = 

extraneous to the case presented
on behalf of the = 

plaintiffs."
 
Overall there is a good review of different = 

road maps of restitution but
because this is only a certification = 

application, the judge does not need to
pick one, only deciding that it is arguable = 

that a claim in negligence might
lead to a gain-based remedy, and [38] that = 

"it is not plain and obvious that
a claim based on waiver of tort must satisfy = 

the three-part test for unjust
enrichment". While he concludes that it = 

is arguable that unjust enrichment
can be established without showing any = 

deprivation, he decides that in a
case where the only facts pleaded involve = 

negligence, there is no room for a
separate claim in unjust = 

enrichment.
 
Unfortunately these class actions rarely go = 

trial in Canada--they tend to
settle after certification--so we may never = 

get actual decisions on the
points that he decided were = 

arguable.
 
Neil, what did you find objectionable in the = 

judgment? Is it that you agreed
with the BCSC in Reid, that there can be no = 

gain-based claim for negligence?
That may well be right, but Reid seems much = 

less thorough than this
judgment; Gerow J simply assumed there that = 

all gain-based claims are claims
in unjust enrichment (which in my view is = 

inconsistent with Soulos v
Korkontzilas). In the earlier discussion on = 

the RDG of Cullity J's other
judgments, some people read him as saying = 

that waiver of tort is an
independent cause of action; I don't think = 

this new judgment is open to that
criticism. He is not deciding whether waiver = 

of tort is (a) a gain-based
claim for a wrong or (b) part of unjust = 

enrichment, but I don't think he can
be read as saying that it is neither = 

one.
 
I do think that in [64] Cullity J. may have = 

misunderstood Peter Birks'
position.
 
Lionel
=A0 
=A0
 
On 8/2/07 17:16, "Neil Guthrie" <NGuthrie@STIKEMAN.COM
<mailto:NGuthrie@STIKEMAN.COM>= 

; > wrote:

=A0=A0

Justice Cullity of the Ontario Superior Court = 

is at it again, this

time in Heward v. Eli Lilly & Co., which = 

was released the day before

yesterday (not yet posted to www.canlii.org <http://www.canlii.org> , = 

but

=A0=A0=A0

presumably in a = 

day

=A0=A0

or two).=A0 There the judge makes his most = 

expansive comments to date on

waiver of tort, expressing disagreement with = 

the recent decision in

Reid v. Ford Motor from British = 

Columbia in finding that a remedy

depends on the three-part test for unjust = 

enrichment from Pettkus v.

=A0=A0=A0

Becker.

=A0

In related news, the Supreme Court of Canada = 

is considering an

application for leave to appeal the refusal = 

of the Ont. CA to hear the

=A0=A0=A0

appeal in Serhan = 

v.

=A0

Johnson & Johnson, the decision that made = 

waiver of tort a live issue

in Ontario -- and for which we = 

also have Justice Cullity to thank.

Neil Guthrie

Tel : (416) 869-5230

Fax : (416) 947-0866

nguthrie@stikeman.com <mailto:nguthrie@stikeman.com>= 

;

Stikeman Elliott LLP

Barristers & = 

Solicitors

5300 Commerce Court = 

West

199 Bay Street

Toronto, Ontario M5L = 

1B9

Tel: (416) 869-5500

www.stikeman.com <http://www.stikeman.com> =

Montr=E9al * Toronto * Ottawa * Calgary * = 

Vancouver * New York * London

* Sydney

=A0=A0=A0

--

This message was delivered through the Obligations Discussion = 

Group, an international mailing list devoted to all aspects of the law = 

of obligations. To be added or deleted from the list please send a = 

message to <obligations-request@uwo.ca= 

>. To make a posting to all group members, send a message to <obligations@uwo.ca>. The = 

list is run by Jason Neyers of the University of Western = 

Ontario, tel. (+1) 519 661-2111 x. 88435,email <jneyers@uwo.ca>. The list is = 

archived at <http://www.ucc.ie/law/odg= 

/home.htm>. Archived messages are not to be cited in published = 

works without prior approval of the author.

=A0

--

Jason Neyers

January Term Director

Associate Professor of = 

Law

Faculty of Law

University of Western = 

Ontario

N6A 3K7

(519) 661-2111 x. 88435

[mailto:owner-obligations@uwo.ca] On Behalf Of Lionel Smith Sent: February 15, 2007 12:20 PM To: obligations@uwo.ca ; RDG Subject: ODG: Waiver of tort: Heward v. Eli Lilly & Co. =20 This case is now on canlii, at http://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html =20 =20 At [25] we find this: =20 "In attempting to formulate coherent principles that would explain and rationalise past decisions to accommodate the relatively recent = recognition of a general law of restitution, there is no doubt that the learned commentators have greatly contributed to, and will quite properly = continue to influence, its development. However, as the reasons of Epstein J. indicate, their views have not been uniform despite the enviable degree = of confidence with which they have sometimes been asserted." =20 But it is not only the academics who get sideswiped: =20 [14]: "The case for certifying the proceeding was very strongly, and comprehensibly, contested by counsel for the defendants on the basis of = the evidence and the authorities. They left no stone unturned and, in my opinion, turned over quite a few that were extraneous to the case = presented on behalf of the plaintiffs." =20 Overall there is a good review of different road maps of restitution but because this is only a certification application, the judge does not = need to pick one, only deciding that it is arguable that a claim in negligence = might lead to a gain-based remedy, and [38] that "it is not plain and obvious = that a claim based on waiver of tort must satisfy the three-part test for = unjust enrichment". While he concludes that it is arguable that unjust = enrichment can be established without showing any deprivation, he decides that in a case where the only facts pleaded involve negligence, there is no room = for a separate claim in unjust enrichment. =20 Unfortunately these class actions rarely go trial in Canada--they tend = to settle after certification--so we may never get actual decisions on the points that he decided were arguable. =20 Neil, what did you find objectionable in the judgment? Is it that you = agreed with the BCSC in Reid, that there can be no gain-based claim for = negligence? That may well be right, but Reid seems much less thorough than this judgment; Gerow J simply assumed there that all gain-based claims are = claims in unjust enrichment (which in my view is inconsistent with Soulos v Korkontzilas). In the earlier discussion on the RDG of Cullity J's other judgments, some people read him as saying that waiver of tort is an independent cause of action; I don't think this new judgment is open to = that criticism. He is not deciding whether waiver of tort is (a) a gain-based claim for a wrong or (b) part of unjust enrichment, but I don't think he = can be read as saying that it is neither one. =20 I do think that in [64] Cullity J. may have misunderstood Peter Birks' position. =20 Lionel =20 =20 =20 On 8/2/07 17:16, "Neil Guthrie" > wrote: =20 =20 Justice Cullity of the Ontario Superior Court is at it again, this=20 time in Heward v. Eli Lilly & Co., which was released the day before=20 yesterday (not yet posted to www.canlii.org , but =20 presumably in a day=20 =20 or two). There the judge makes his most expansive comments to date on=20 waiver of tort, expressing disagreement with the recent decision in=20 Reid v. Ford Motor from British Columbia in finding that a remedy=20 depends on the three-part test for unjust enrichment from Pettkus v. =20 Becker. =20 In related news, the Supreme Court of Canada is considering an=20 application for leave to appeal the refusal of the Ont. CA to hear the =20 appeal in Serhan v. =20 Johnson & Johnson, the decision that made waiver of tort a live issue=20 in Ontario -- and for which we also have Justice Cullity to thank. =20 =20 =20 Neil Guthrie Tel : (416) 869-5230 Fax : (416) 947-0866 nguthrie@stikeman.com =20 =20 Stikeman Elliott LLP Barristers & Solicitors 5300 Commerce Court West 199 Bay Street Toronto, Ontario M5L 1B9 Tel: (416) 869-5500 www.stikeman.com =20 =20 Montr=E9al * Toronto * Ottawa * Calgary * Vancouver * New York * London=20 * Sydney =20 =20 =20 =20 -- =20 This message was delivered through the Obligations Discussion Group, an international mailing list devoted to all aspects of the law of = obligations. To be added or deleted from the list please send a message to

. To = make a posting to all group members, send a message to = . The list is run by Jason Neyers of the University = of Western Ontario, tel. (+1) 519 661-2111 x. 88435,email . The list is archived at = . Archived messages are not to be cited in published works without prior approval of the author. =20 --=20 Jason Neyers January Term Director Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435=20 ____________________________________________________________________ = This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of = unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ____________________________________________________________________ = This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of = unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ------=_NextPart_000_0007_01C759F6.858807E0 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

Nobody did. Apologies for a confusing post. I = mentioned=20 3Com v Zorin because the CA didn't see fit to suggest in para 57 that = the=20 only reason why proof of actual loss wasn't required was = that the=20 cause of action was deceit. That distinction might be implicit in=20 "It was=20 not necessary, in the circumstances of this case, to introduce evidence = of a=20 specific alternative third party buyer" but the statement=20 was followed by this sentence which seems to be the = explanation for=20 why it was not necessary: "The appellants=92 submission ignores the = conceptual basis of tort law, which is restitutionary." That=20 justification would apply equally to negligence. However, to be fair, = the case=20 wasn't negligence and there's no need to read the case=20 as extending to negligence.

David

From: Enrichment - Restitution & = Unjust=20 Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf = Of=20 Lionel Smith, Prof.
Sent: February 26, 2007 9:32 = PM
To:=20 ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] ODG: Waiver of=20 tort

I=92m=20 confused; did anyone say there can=92t be a gain-based claim in tort (as = opposed=20 to arguments about whether specific torts (especially negligence) will = support=20 it)?

Lionel

David Cheifetz=20 wrote:

Lionel,

On tort & gain-based = 

awards:

Look at, if you haven't seen it, 3com Corporation v. Zorin = 

International

Corporation, 2006 CanLII 18351 (ON C.A.)

http://can= 

lii.org/on/cas/onca/2006/2006onca10410.html particularly at = 

para.

57.

It looks like the Ont CA wouldn't agree that there can't be a = 

gain-based

claim in tort, at least where we're dealing with intentional = 

torts, although

the statement in the case isn't restricted to = 

intentional torts. "The

appellants=92 submission ignores the = 

conceptual basis of tort law, which is

restitutionary.  The = 

difference between the contract price and the price = 

at

which the appellants would otherwise have had to purchase the = 

goods is a

cost properly borne by the appellants."

This was a deceit claim were = 

the recovery where the recovery was the gain

the plaintiff would not have = 

made but for the tort, not the plaintiff's

loss.On the evidence, there was = 

no loss on this issue. 3Com sold the goods

for $X based on the deceit. The = 

price would have been higher, otherwise. As

I understand the evidence, = 

there was no evidence that the goods could have

been sold for the higher price = 

to anybody, so 3 Com didn't sustain any loss

on the sale of these goods = 

based on the evidence. It just didn't make as

muchbecause on the sale. I = 

suspect that was also the reality.

There's nothing in the case to = 

indicate waiver of tort was raised. I don't

have it at my fingertips but = 

there's a passaage in Maddaugh and McCamus

specifically suggesting that = 

waiver of tort might apply in a deceit-based

claim. The description in = 

M&M is literally the facts of 3Com.

David

-----Original = 

Message-----

From: owner-obligations@uwo.ca <mailto:owner-obligations@uwo= 

.ca>

[mailto:owner-obligations@uwo.ca<= 

/A>] On Behalf Of Lionel Smith

Sent: February = 

15, 2007 12:20 PM

To: obligations@uwo.ca = 

<mailto:obligations@uwo.ca> = 

; RDG

Subject: ODG: Waiver of tort: Heward v. Eli Lilly & = 

Co.

This case is now on canlii, at

http:/= 

/www.canlii.org/on/cas/onsc/2007/2007onsc10228.html<ht= 

tp://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html> = 

 
At [25] we find this:
 
"In attempting to formulate = 

coherent principles that would explain and
rationalise past decisions to = 

accommodate the relatively recent recognition
of a general law of = 

restitution, there is no doubt that the learned
commentators have greatly = 

contributed to, and will quite properly continue
to influence, its development. = 

However, as the reasons of Epstein J.
indicate, their views have not = 

been uniform despite the enviable degree of
confidence with which they have = 

sometimes been asserted."
 
But it is not only the = 

academics who get sideswiped:
 
[14]: "The case for certifying = 

the proceeding was very strongly, and
comprehensibly, contested by = 

counsel for the defendants on the basis of the
evidence and the authorities. = 

They left no stone unturned and, in my
opinion, turned over quite a = 

few that were extraneous to the case presented
on behalf of the = 

plaintiffs."
 
Overall there is a good review of different road maps of = 

restitution but
because this is only a certification = 

application, the judge does not need to
pick one, only deciding that it = 

is arguable that a claim in negligence might
lead to a gain-based remedy, = 

and [38] that "it is not plain and obvious that
a claim based on waiver of tort = 

must satisfy the three-part test for unjust
enrichment". While he concludes = 

that it is arguable that unjust enrichment
can be established without = 

showing any deprivation, he decides that in a
case where the only facts = 

pleaded involve negligence, there is no room for = 

a
separate claim in unjust enrichment.
 
Unfortunately these class = 

actions rarely go trial in Canada--they tend to
settle after certification--so = 

we may never get actual decisions on the
points that he decided were = 

arguable.
 
Neil, what did you find objectionable in the judgment? Is it that = 

you agreed
with the BCSC in Reid, that there can be no gain-based claim for = 

negligence?
That may well be right, but Reid seems much less thorough than = 

this
judgment; Gerow J simply assumed there that all gain-based claims = 

are claims
in unjust enrichment (which in my view is inconsistent with Soulos = 

v
Korkontzilas). In the earlier discussion on the RDG of Cullity J's = 

other
judgments, some people read him as saying that waiver of tort is = 

an
independent cause of action; I don't think this new judgment is = 

open to that
criticism. He is not deciding whether waiver of tort is (a) a = 

gain-based
claim for a wrong or (b) part of unjust enrichment, but I don't = 

think he can
be read as saying that it is neither one.
 
I do think that in [64] Cullity = 

J. may have misunderstood Peter Birks'
position.
 
Lionel
  
 
 
On 8/2/07 17:16, = 

"Neil Guthrie" <NGuthrie@STIKEMAN.COM
<mailto:NGuthrie@STIKEMAN.COM>= 

; > wrote:

Justice Cullity of the Ontario Superior Court is at it again, this =

time in Heward v. Eli Lilly & Co., which was released the day = 

before

yesterday (not yet posted to www.canlii.org <http://www.canlii.org> , = 

but

presumably in a = 

day

or two).  There the judge makes his most expansive comments = 

to date on

waiver of tort, expressing disagreement with the recent decision = 

in

Reid v. Ford Motor from British Columbia in finding = 

that a remedy

depends on the three-part test for unjust enrichment from Pettkus = 

v.

Becker.

In related news, the Supreme Court of Canada is considering an =

application for leave to appeal the refusal of the Ont. CA to hear = 

the

appeal in Serhan = 

v.

Johnson & Johnson, the decision that made waiver of tort a = 

live issue

in Ontario -- and for which we also have Justice = 

Cullity to thank.

Neil Guthrie

Tel : (416) 869-5230

Fax : (416) = 

947-0866

nguthrie@stikeman.com = 

<mailto:nguthrie@stikeman.com>= 

;

Stikeman Elliott LLP

Barristers & = 

Solicitors

5300 Commerce Court West

199 Bay = 

Street

Toronto, Ontario M5L 1B9

Tel: (416) = 

869-5500

www.stikeman.com <http://www.stikeman.com> =

Montr=E9al * Toronto * Ottawa * Calgary * Vancouver = 

* New York * London

* Sydney

--

This message was delivered through the Obligations Discussion = 

Group, an international mailing list devoted to all aspects of the law = 

of obligations. To be added or deleted from the list please send a = 

message to <obligations-request@uwo.ca= 

>. To make a posting to all group members, send a message to <obligations@uwo.ca>. The = 

list is run by Jason Neyers of the University of Western = 

Ontario, tel. (+1) 519 661-2111 x. 88435,email <jneyers@uwo.ca>. The list is = 

archived at <http://www.ucc.ie/law/odg= 

/home.htm>. Archived messages are not to be cited in published = 

works without prior approval of the author.

--

Jason Neyers

January Term Director

Associate Professor of = 

Law

Faculty of Law

University of Western = 

Ontario

N6A = 

3K7

(519) 661-2111 x. 88435 =

_______________________________________________= _____________________=20 This message was delivered through the Restitution Discussion Group, an=20 international internet LISTSERV devoted to all aspects of the law of = unjust=20 enrichment. To subscribe, send "subscribe enrichment" in the body of a = message=20 to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff = enrichment"=20 to the same address. To make a posting to all group members, send to=20 <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of = McGill=20 University, <lionel.smith@mcgill.ca>.=20 ____________________________________________________________________ = This=20 message was delivered through the Restitution Discussion Group, an = international=20 internet LISTSERV devoted to all aspects of the law of unjust = enrichment. To=20 subscribe, send "subscribe enrichment" in the body of a message to=20 <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff = enrichment" to=20 the same address. To make a posting to all group members, send to=20 <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of = McGill=20 University, <lionel.smith@mcgill.ca>. ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. ------=_NextPart_000_0007_01C759F6.858807E0-- ========================================================================= Date: Tue, 27 Feb 2007 16:50:04 +1300 Reply-To: Kalev Crossland Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Kalev Crossland Subject: Re: ODG: Waiver of tort Comments: To: "Lionel Smith, Prof." MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C75A22.5D13C2B4" This is a multi-part message in MIME format. ------_=_NextPart_001_01C75A22.5D13C2B4 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear All =20 I am a very irregular contributor to the group but the current discussion= =20piqued my interest due to acting in a nuisance action where flooding w= as kept off a farm from a stopbank on the defendant's resulting that far= m being much more profitable than before the stopbank went up. Water wen= t elsewhere onto neighbouring farms causing a nuisance. =20 Whilst not especially well known in some jurisdictions such as my own (NZ= ) my understanding is that gain based relief in tort is conceptually soun= d. It just does not come up so often because normally the defendant has = not gained - rather the defendant has to pay for the injury to the plaint= iff. But for some torts - particularly proprietary ones, such as nuisanc= e where the plaintiff has not suffered any provable loss (or the loss is = not equivalent to the gain by the wrongdoer) but the defendant has made s= ome sort of profit from his or her wrongful act then the Court can strip = that profit out from the defendant on that basis that one cannot profit f= or a wrong. Graham Virgo's recent edition book has a couple of very good= =20chapters on this. =20 =20 A recent case in trespass here in NZ (defendant tunneling under plaintiff= 's land) had a plaintiff awarded a notional lease payment despite not hav= ing suffered any loss. I can dig out the reference if anyone is intereste= d.=20 =20 Kalev Crossland =20 =20 =20 _____ =20 From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:E= NRICHMENT@LISTS.MCGILL.CA] On Behalf Of Lionel Smith, Prof. Sent: Tuesday, 27 February 2007 3:32 p.m. To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG: Waiver of tort =20 I'm confused; did anyone say there can't be a gain-based claim in tort (a= s opposed to arguments about whether specific torts (especially negligenc= e) will support it)? Lionel =20 =20 =20 David Cheifetz wrote: Lionel, =20 On tort & gain-based awards: =20 Look at, if you haven't seen it, 3com Corporation v. Zorin International Corporation, 2006 CanLII 18351 (ON C.A.) http://canlii.org/on/cas/onca/2006/2006onca10410.html particularly at par= a. 57.=20 =20 It looks like the Ont CA wouldn't agree that there can't be a gain-based claim in tort, at least where we're dealing with intentional torts, altho= ugh the statement in the case isn't restricted to intentional torts. "The appellants' submission ignores the conceptual basis of tort law, which is= restitutionary. The difference between the contract price and the price = at which the appellants would otherwise have had to purchase the goods is a cost properly borne by the appellants."=20 =20 This was a deceit claim were the recovery where the recovery was the gain= the plaintiff would not have made but for the tort, not the plaintiff's loss.On the evidence, there was no loss on this issue. 3Com sold the good= s for $X based on the deceit. The price would have been higher, otherwise. = As I understand the evidence, there was no evidence that the goods could hav= e been sold for the higher price to anybody, so 3 Com didn't sustain any lo= ss on the sale of these goods based on the evidence. It just didn't make as muchbecause on the sale. I suspect that was also the reality. =20 There's nothing in the case to indicate waiver of tort was raised. I don'= t have it at my fingertips but there's a passaage in Maddaugh and McCamus specifically suggesting that waiver of tort might apply in a deceit-based= claim. The description in M&M is literally the facts of 3Com. =20 David =20 =20 -----Original Message----- From: owner-obligations@uwo.ca =20 [mailto:owner-obligations@uwo.ca] On Behalf Of Lionel Smith Sent: February 15, 2007 12:20 PM To: obligations@uwo.ca ; RDG Subject: ODG: Waiver of tort: Heward v. Eli Lilly & Co. =20 This case is now on canlii, at http://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html =20 =20 At [25] we find this: =20 "In attempting to formulate coherent principles that would explain and rationalise past decisions to accommodate the relatively recent recogniti= on of a general law of restitution, there is no doubt that the learned commentators have greatly contributed to, and will quite properly continu= e to influence, its development. However, as the reasons of Epstein J. indicate, their views have not been uniform despite the enviable degree o= f confidence with which they have sometimes been asserted." =20 But it is not only the academics who get sideswiped: =20 [14]: "The case for certifying the proceeding was very strongly, and comprehensibly, contested by counsel for the defendants on the basis of t= he evidence and the authorities. They left no stone unturned and, in my opinion, turned over quite a few that were extraneous to the case present= ed on behalf of the plaintiffs." =20 Overall there is a good review of different road maps of restitution but because this is only a certification application, the judge does not need= =20to pick one, only deciding that it is arguable that a claim in negligence mi= ght lead to a gain-based remedy, and [38] that "it is not plain and obvious t= hat a claim based on waiver of tort must satisfy the three-part test for unju= st enrichment". While he concludes that it is arguable that unjust enrichmen= t can be established without showing any deprivation, he decides that in a case where the only facts pleaded involve negligence, there is no room fo= r a separate claim in unjust enrichment. =20 Unfortunately these class actions rarely go trial in Canada--they tend to= settle after certification--so we may never get actual decisions on the points that he decided were arguable. =20 Neil, what did you find objectionable in the judgment? Is it that you agr= eed with the BCSC in Reid, that there can be no gain-based claim for negligen= ce? That may well be right, but Reid seems much less thorough than this judgment; Gerow J simply assumed there that all gain-based claims are cla= ims in unjust enrichment (which in my view is inconsistent with Soulos v Korkontzilas). In the earlier discussion on the RDG of Cullity J's other judgments, some people read him as saying that waiver of tort is an independent cause of action; I don't think this new judgment is open to t= hat criticism. He is not deciding whether waiver of tort is (a) a gain-based claim for a wrong or (b) part of unjust enrichment, but I don't think he = can be read as saying that it is neither one. =20 I do think that in [64] Cullity J. may have misunderstood Peter Birks' position. =20 Lionel =20=20 =20 =20 On 8/2/07 17:16, "Neil Guthrie" > wrote: =20 =20=20 =09Justice Cullity of the Ontario Superior Court is at it again, this=20 =09time in Heward v. Eli Lilly & Co., which was released the day before=20 =09yesterday (not yet posted to www.canlii.org , but =09 =20 presumably in a day=20 =20=20 =09or two). There the judge makes his most expansive comments to date on= =20 =09waiver of tort, expressing disagreement with the recent decision in=20 =09Reid v. Ford Motor from British Columbia in finding that a remedy=20 =09depends on the three-part test for unjust enrichment from Pettkus v. =09 =20 Becker. =20=20 =09In related news, the Supreme Court of Canada is considering an=20 =09application for leave to appeal the refusal of the Ont. CA to hear the= =09 =20 appeal in Serhan v. =20=20 =09Johnson & Johnson, the decision that made waiver of tort a live issue = =09in Ontario -- and for which we also have Justice Cullity to thank. =09=20 =09=20 =09=20 =09Neil Guthrie =09Tel : (416) 869-5230 =09Fax : (416) 947-0866 =09nguthrie@stikeman.com =20 =09=20 =09Stikeman Elliott LLP =09Barristers & Solicitors =095300 Commerce Court West =09199 Bay Street =09Toronto, Ontario M5L 1B9 =09Tel: (416) 869-5500 =09www.stikeman.com = =09=20 =09Montr=E9al * Toronto * Ottawa * Calgary * Vancouver * New York * Londo= n=20 =09* Sydney =09 =20 =20 =20 =20 -- =20 This message was delivered through the Obligations Discussion Group, an i= nternational mailing list devoted to all aspects of the law of obligation= s. To be added or deleted from the list please send a message to

. To make a post= ing to all group members, send a message to . The list is run by Jason Neyers of the University o= f Western Ontario, tel. (+1) 519 661-2111 x. 88435,email = =20 . The list is archived at . Archived messages= =20are not to be cited in published works without prior approval of the a= uthor. =20=20 =20 --=20 Jason Neyers January Term Director Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435=20 ____________________________________________________________________ This= =20message was delivered through the Restitution Discussion Group, an int= ernational internet LISTSERV devoted to all aspects of the law of unjust = enrichment. To subscribe, send "subscribe enrichment" in the body of a me= ssage to . To unsubscribe, send "signoff enrich= ment" to the same address. To make a posting to all group members, send t= o . The list is run by Lionel Smith of McGill= =20University, . ________________________________= ____________________________________ This message was delivered through t= he Restitution Discussion Group, an international internet LISTSERV devot= ed to all aspects of the law of unjust enrichment. To subscribe, send "su= bscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make= =20a posting to all group members, send to . = The list is run by Lionel Smith of McGill University, . #########################################################################= ############ This e-mail message has been scanned for Viruses and Content and cleared = by MailMarshal For more information please visit www.marshalsoftware.com #########################################################################= ############ ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ------_=_NextPart_001_01C75A22.5D13C2B4 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

From: Enrichment - Restitution & Unjust Enrichment Legal= Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Lionel Smith, Prof.
Sent: Tuesday, 27 February= =202007 3:32 p.m.
To: ENRICHMENT@LISTS.MCGIL= L.CA
Subject: Re: [RDG] ODG: Wa= iver of tort

Fax : (416) 947-0866<= /pre>

nguth= 

rie@stikeman.com <mailto:nguthrie@stikeman.com>= 

;

Stikeman Elliott LLP<= 

/pre>Barristers & Solicitors<= 

/font>
5300 Commerce Court West= 

199 Bay Street
Toronto, Ontario M5L 1B9
Tel: (416) 869-5500www.stikem= 

an.com <http://www.stikeman.com> 
 
Montr=E9al * Toronto * Ottawa * Calgary = 

* Vancouver * New York * London 
* Sydney
     

 

 
 
 
--
 
This message was delivered through the Obligat= 

ions Discussion Group, an international mailing list devoted to all aspec= 

ts of the law of obligations. To be added or deleted from the list please= 

=20send a message to <obligations-request@uwo.ca= 

>. To make a posting to all group members, send a message to <obligations@uwo.ca>. The li= 

st is run by Jason Neyers of the University of Western Ontario, tel. (+1) 519= 

=20661-2111 x. 88435,email <jneyers@uwo.ca>. The list is ar= 

chived at <http://www.ucc.ie/law/odg= 

/home.htm>. Archived messages are not to be cited in published wor= 

ks without prior approval of the author.
   

 

  

 

-- 
Jason Neyers
January Term Director= 

Associate Professor of Law
Faculty of Law
<= 

pre 

style=3D'margin-left:36.0pt'>University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435

Nobody did. Apologies for a confusing post. I mentioned 3Com v Zo= rin because the CA didn't see fit to suggest in para 57 that the only reason= why proof of actual loss wasn't required was that the cause of action was d= eceit. That distinction might be implicit in "It was not necessary, in the circumst= ances of this case, to introduce evidence of a specific alternative third pa= rty buyer" but the statement was followed by this sentence which seems = to be the explanation for why it was not necessary: "The appellantsR= 17; submission ignores the conceptual basis of tort law, which is restitutio= nary." That justification would apply equally to negligence. Howe= ver, to be fair, the case wasn't negligence and there's no need to read the = case as extending to negligence.

David

From:<= /B> Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] <= B>On Behalf Of Lionel Smith, Prof.
Sent: February 26, 2007 9:32 PM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] ODG: Waiver of tort

= I’m confused; did anyone= say there can’t be a gain-based claim in tort (as opposed to argument= s about whether specific torts (especially negligence) will support it)?

Lionel

David Cheifetz wrote:

Lionel,

On tort & gain-based awards:

Look at, if you haven't seen it, 3com Corporation v. Zorin International Corporation, 2006 CanLII 18351 (ON C.A.)
ht= tp://canlii.org/on/cas/onca/2006/2006onca10410.html particularly at para= .
57.

It looks like the Ont CA wouldn't agree that there can't be a gain-based claim in tort, at least where we're dealing with intentional torts, althoug= h
the statement in the case isn't restricted to intentional torts. "The<= BR> appellants’ submission ignores the conceptual basis of tort law, whic= h is
restitutionary. The difference between the contract price and the pri= ce at
which the appellants would otherwise have had to purchase the goods is a cost properly borne by the appellants."

This was a deceit claim were the recovery where the recovery was the gain the plaintiff would not have made but for the tort, not the plaintiff's
loss.On the evidence, there was no loss on this issue. 3Com sold the goods<= BR> for $X based on the deceit. The price would have been higher, otherwise. As=
I understand the evidence, there was no evidence that the goods could have<= BR> been sold for the higher price to anybody, so 3 Com didn't sustain any loss=
on the sale of these goods based on the evidence. It just didn't make as muchbecause on the sale. I suspect that was also the reality.

There's nothing in the case to indicate waiver of tort was raised. I don't<= BR> have it at my fingertips but there's a passaage in Maddaugh and McCamus
specifically suggesting that waiver of tort might apply in a deceit-based claim. The description in M&M is literally the facts of 3Com.

David

-----Original Message-----
From: owner-obligations@uwo.ca &l= t;mailto:owner-obligations@uwo.ca>
[mailto:owner-obligations@uwo.ca= ] On Behalf Of Lionel Smith
Sent: February 15, 2007 12:20 PM
To: obligations@uwo.ca <mai= lto:obligations@uwo.ca> ; RDG
Subject: ODG: Waiver of tort: Heward v. Eli Lilly & Co.

This case is now on canlii, at
http://= www.canlii.org/on/cas/onsc/2007/2007onsc10228.html
<htt= p://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html>

At [25] we find this:

"In attempting to formulate coherent principles that would explain and=
rationalise past decisions to accommodate the relatively recent recognition=
of a general law of restitution, there is no doubt that the learned
commentators have greatly contributed to, and will quite properly continue<= BR> to influence, its development. However, as the reasons of Epstein J.
indicate, their views have not been uniform despite the enviable degree of<= BR> confidence with which they have sometimes been asserted."

But it is not only the academics who get sideswiped:

[14]: "The case for certifying the proceeding was very strongly, and comprehensibly, contested by counsel for the defendants on the basis of the=
evidence and the authorities. They left no stone unturned and, in my
opinion, turned over quite a few that were extraneous to the case presented=
on behalf of the plaintiffs."

Overall there is a good review of different road maps of restitution but because this is only a certification application, the judge does not need t= o
pick one, only deciding that it is arguable that a claim in negligence migh= t
lead to a gain-based remedy, and [38] that "it is not plain and obviou= s that
a claim based on waiver of tort must satisfy the three-part test for unjust=
enrichment". While he concludes that it is arguable that unjust enrich= ment
can be established without showing any deprivation, he decides that in a case where the only facts pleaded involve negligence, there is no room for = a
separate claim in unjust enrichment.

Unfortunately these class actions rarely go trial in <= FONT FACE=3D"Verdana, Helvetica, Arial">Canada-= -they tend to
settle after certification--so we may never get actual decisions o= n the
points that he decided were arguable.

Neil, what did you find objectionable in the judgment? Is it that you agree= d
with the BCSC in Reid, that there can be no gain-based claim for negligence= ?
That may well be right, but Reid seems much less thorough than this
judgment; Gerow J simply assumed there that all gain-based claims are claim= s
in unjust enrichment (which in my view is inconsistent with Soulos v
Korkontzilas). In the earlier discussion on the RDG of Cullity J's other judgments, some people read him as saying that waiver of tort is an
independent cause of action; I don't think this new judgment is open to tha= t
criticism. He is not deciding whether waiver of tort is (a) a gain-based claim for a wrong or (b) part of unjust enrichment, but I don't think he ca= n
be read as saying that it is neither one.

I do think that in [64] Cullity J. may have misunderstood Peter Birks'
position.

Lionel


On 8/2/07 17:16, "Neil Guthrie" <NGuthrie@STIKE= MAN.COM
<mailto:NGuthrie@STIKEMA= N.COM> > wrote:



Justice Cullity of the Ontario Superior Court i= s at it again, this
time in Heward v. Eli Lilly & Co., which was released the day before yesterday (not yet posted to www.canlii.org <http://www.canlii.org> <= ;http://www.canlii.org> , but


<= SPAN STYLE=3D'font-size:13.0px'>presumably in a day


or two). There the judge makes his most e= xpansive comments to date on
waiver of tort, expressing disagreement with the recent decision in
Reid v. Ford Motor from British Columbia in finding that a r= emedy
depends on the three-part test for unjust enrichment from Pettkus = v.


<= SPAN STYLE=3D'font-size:13.0px'>Becker.


In related news, the Supreme Court of Canada is= considering an
application for leave to appeal the refusal of the Ont. CA to hear the


<= SPAN STYLE=3D'font-size:13.0px'>appeal in Serhan v.


Johnson & Johnson, the decision that made w= aiver of tort a live issue
in Ontario -- and for which we also have Justice Cullity to = thank.

Neil Guthrie
Tel : (416) 869-5230
Fax : (416) 947-0866
nguthrie@stikeman.com <mailto:ngu= thrie@stikeman.com>

Stikeman Elliott LLP
Barristers & Solicitors
5300 Commerce Court West
199 Bay Street
Toronto, Ontario M5L 1B9
Tel: (416) 869-5500
www.stikeman.com <http://www.stikeman.= com> <http://www.stikeman.= com>

Montréal * Toronto * Ottawa * Calgary * Vancouver * N= ew York * London
* Sydney


<= SPAN STYLE=3D'font-size:13.0px'>

--

This message was delivered through the Obligations Discussion Group, an int= ernational mailing list devoted to all aspects of the law of obligations. To= be added or deleted from the list please send a message to <obligations-= request@uwo.ca> <mailto:ob= ligations-request@uwo.ca> . To make a posting to all group members, s= end a message to <obligations@uwo.ca> <mailto:obligations@uwo.ca> . The list is run by Jason Neyers = of the University of Western Ontario, tel. (+1) 519 661-2111 = x. 88435,email <jneyers@uwo.ca> <ma= ilto:jneyers@uwo.ca> . The list is archived at <http://www.ucc.ie/law/odg/home.htm>. Archi= ved messages are not to be cited in published works without prior approval o= f the author.

____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. --B_3255412322_3231-- ========================================================================= Date: Tue, 27 Feb 2007 14:44:18 -0500 Reply-To: Doug Rendleman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Doug Rendleman Subject: Re: ODG: Waiver of tort Comments: To: Kalev Crossland In-Reply-To: Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=__Part4165ED02.0__=" --=__Part4165ED02.0__= Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: base64 SGkgQWxsLCANCiBJIGFtIGZvbGxvd2luZyBDYWxldiBDcm9zc2xhbmQgZnJvbSBOZXcgWmVhbGFu ZCBhYm91dCByZXN0aXR1dGlvbiBmb3IgbnVpc2FuY2UgYW5kIHRoZSBDYW5hZGlhbiBpbnRlcmNo YW5nZSBhYm91dCBnYWluLWJhc2VkIHJlc3RpdHV0aW9uLiAgDQogVGhlIDR0aCBUZW50YXRpdmUg RHJhZnQgb2YgdGhlIFJlc3RhdGVtZW50IChUaGlyZCkgb2YgUmVzdGl0dXRpb24sIHNlY3Rpb24g NDQsIGlsbHVzdHJhdGlvbiAxNCBpcyByZXN0aXR1dGlvbiBmb3IgYSBudWlzYW5jZSwgbWVhc3Vy ZWQgYnkgdGhlIHZhbHVlIG9mIGEgbGljZW5zZS4gIEl0IHdhcyBiYXNlZCBvbiBhIGRhbWFnZXMg Y2FzZSwgQm9vbWVyIHYuIEF0bGFudGljIENlbWVudCwgYW5kIERhbiBGcmllZG1hbm4ncyBjb21t ZW50IGluIFJlc3RpdHV0aW9uIG9mIEJlbmVmaXRzLCA4MCBDb2x1bWJpYSBMYXcgUmV2aWV3IDUw NCwgNTA5LCBuLiAyOCAoMTk4MCkuICANCiBBIHJlY2VudCBVbml0ZWQgU3RhdGVzIENvdXJ0IG9m IEFwcGVhbHMgZGVjaXNpb24gb24gcmVzdGl0dXRpb24gZm9yIG51aXNhbmNlIHNheXMgbm8gLSBN YXJtbyB2LiBUeXNvbiwgNDU3IEYuM2QgNzQ4ICg4dGggQ2lyLiAyMDA2KS4gIEp1ZGdlIEFybm9s ZJJzIHN0cm9uZyBkaXNzZW50IHNheXMgeWVzLiAgDQpCZXN0IFJlZ2FyZHMgdG8gQWxsLg0KRG91 ZyBSZW5kbGVtYW4gDQpXYXNoaW5ndG9uICYgTGVlIA0K --=__Part4165ED02.0__= Content-Type: text/html; charset=ISO-8859-1 Content-Transfer-Encoding: base64 Content-Description: HTML PEhUTUw+PEhFQUQ+DQo8TUVUQSBodHRwLWVxdWl2PUNvbnRlbnQtVHlwZSBjb250ZW50PSJ0ZXh0 L2h0bWw7IGNoYXJzZXQ9aXNvLTg4NTktMTUiPg0KPE1FVEEgY29udGVudD0iTVNIVE1MIDYuMDAu NjAwMC4xNjQxNCIgbmFtZT1HRU5FUkFUT1I+PC9IRUFEPg0KPEJPRFkgc3R5bGU9Ik1BUkdJTjog NHB4IDRweCAxcHg7IEZPTlQ6IDEwcHQgVGFob21hIj4NCjxESVY+SGkgQWxsLCA8L0RJVj4NCjxE SVY+Jm5ic3A7SSBhbSBmb2xsb3dpbmcgQ2FsZXYgQ3Jvc3NsYW5kIGZyb20gTmV3IFplYWxhbmQg YWJvdXQgcmVzdGl0dXRpb24gZm9yIG51aXNhbmNlIGFuZCB0aGUgQ2FuYWRpYW4gaW50ZXJjaGFu Z2UgYWJvdXQgZ2Fpbi1iYXNlZCByZXN0aXR1dGlvbi4mbmJzcDsgPC9ESVY+DQo8RElWPiZuYnNw O1RoZSA0dGggVGVudGF0aXZlIERyYWZ0IG9mIHRoZSBSZXN0YXRlbWVudCAoVGhpcmQpIG9mIFJl c3RpdHV0aW9uLCBzZWN0aW9uIDQ0LCBpbGx1c3RyYXRpb24gMTQgaXMgcmVzdGl0dXRpb24gZm9y IGEgbnVpc2FuY2UsIG1lYXN1cmVkIGJ5IHRoZSB2YWx1ZSBvZiBhIGxpY2Vuc2UuJm5ic3A7IEl0 IHdhcyBiYXNlZCBvbiBhIGRhbWFnZXMgY2FzZSwgQm9vbWVyIHYuIEF0bGFudGljIENlbWVudCwg YW5kIERhbiBGcmllZG1hbm4ncyBjb21tZW50IGluIFJlc3RpdHV0aW9uIG9mIEJlbmVmaXRzLCA4 MCBDb2x1bWJpYSBMYXcgUmV2aWV3IDUwNCwgNTA5LCBuLiAyOCAoMTk4MCkuJm5ic3A7IDwvREl W Pg0KPERJVj4mbmJzcDtBIHJlY2VudCBVbml0ZWQgU3RhdGVzIENvdXJ0IG9mIEFwcGVhbHMgZGVj aXNpb24gb24gcmVzdGl0dXRpb24gZm9yIG51aXNhbmNlIHNheXMgbm8gLSBNYXJtbyB2LiBUeXNv biwgNDU3IEYuM2QgNzQ4ICg4dGggQ2lyLiAyMDA2KS4mbmJzcDsgSnVkZ2UgQXJub2xkJ3Mgc3Ry b25nIGRpc3NlbnQgc2F5cyB5ZXMuJm5ic3A7IDwvRElWPg0KPERJVj5CZXN0IFJlZ2FyZHMgdG8g QWxsLjwvRElWPg0KPERJVj5Eb3VnIFJlbmRsZW1hbiA8L0RJVj4NCjxESVY+V2FzaGluZ3RvbiAm YW1wOyBMZWUgPEJSPjwvRElWPjwvQk9EWT48L0hUTUw+ --=__Part4165ED02.0__=-- ========================================================================= Date: Wed, 28 Feb 2007 09:03:13 +1300 Reply-To: Kalev Crossland Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Kalev Crossland Subject: Re: ODG: Waiver of tort[Scanned] MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C75AAA.500B02AC" This is a multi-part message in MIME format. ------_=_NextPart_001_01C75AAA.500B02AC Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable For John - the reference to the trespass case is below. The conceptual f= urniture is reasonably well arranged in this case although articulated in= =20orthodox damages type language. As with many ex British colonial juri= sdictions the case contains a useful summary of English case law (on the = user principle) =20 Waugh (No2) v A-G [2006] 2 NZLR 812. For a useful discursive academic article by William Swadling on restituti= on for tortious wrongs see "The Myth of Phillips v Homfray" published in = The Search for Principle - Essays in Honour of Lord Goff of Chieveley (OU= P, eds. Swadling and Jones). Another interesting point is the question of election before judgment of = a restitutionary remedy over a loss based damages award. Most Commonweal= th judges assume because of the PC's decision in Tang Min Sit v Capacious= =20Investments that it is one or the other. I recall seeing an academic = article a few years ago suggesting that a better policy response was a ru= le against excessive remedial combinations. In my nuisance case the dama= ge to the plaintiffs and the gain to the defendant were unconnected in th= e sense that there was no equivalence in value nor in identity. Accordin= gly logic would suggest that if you wreck my farm's infrastructure throug= h water diverted onto my land that would normally travel down a floodplai= n and onto your farm by your stopbank erected on your boundary to keep wa= ter of your own farm and thus concurrently damage me and make greater ret= urns (in a non stopbank situation) then you should account to me for your= =20profit (restitution for gain based on the wrong of nuisance) as well a= s paying me to fix the fences and resowing of grass etc. This example I = believe shows the fallacy in such election and the sense in the policy be= ing a rule against excessive remedial combinations. Kalev From: John Kimbell [mailto:John.Kimbell@quadrantchambers.com]=20 Sent: Wednesday, 28 February 2007 6:17 a.m. To: Kalev Crossland Subject: RE: [RDG] ODG: Waiver of tort[Scanned] Dear Kalev, I would be interested in the reference if you have it to hand= . =20 John Kimbell -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:E= NRICHMENT@LISTS.MCGILL.CA] On Behalf Of Kalev Crossland Sent: 27 February 2007 03:50 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG: Waiver of tort[Scanned] Dear All I am a very irregular contributor to the group but the current discussion= =20piqued my interest due to acting in a nuisance action where flooding w= as kept off a farm from a stopbank on the defendant's resulting that far= m being much more profitable than before the stopbank went up. Water wen= t elsewhere onto neighbouring farms causing a nuisance. Whilst not especially well known in some jurisdictions such as my own (NZ= ) my understanding is that gain based relief in tort is conceptually soun= d. It just does not come up so often because normally the defendant has = not gained - rather the defendant has to pay for the injury to the plaint= iff. But for some torts - particularly proprietary ones, such as nuisanc= e where the plaintiff has not suffered any provable loss (or the loss is = not equivalent to the gain by the wrongdoer) but the defendant has made s= ome sort of profit from his or her wrongful act then the Court can strip = that profit out from the defendant on that basis that one cannot profit f= or a wrong. Graham Virgo's recent edition book has a couple of very good= =20chapters on this. =20 A recent case in trespass here in NZ (defendant tunneling under plaintiff= 's land) had a plaintiff awarded a notional lease payment despite not hav= ing suffered any loss. I can dig out the reference if anyone is intereste= d.=20 Kalev Crossland From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:E= NRICHMENT@LISTS.MCGILL.CA] On Behalf Of Lionel Smith, Prof. Sent: Tuesday, 27 February 2007 3:32 p.m. To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG: Waiver of tort =09 I'm confused; did anyone say there can't be a gain-based claim in tor= t (as opposed to arguments about whether specific torts (especially negli= gence) will support it)? =09=09 =09 Lionel =09 =20 =09 =20 =09 =20 =09 David Cheifetz wrote: =09 Lionel, =09 =20 =09 On tort & gain-based awards: =09 =20 =09 Look at, if you haven't seen it, 3com Corporation v. Zorin Internatio= nal =09 Corporation, 2006 CanLII 18351 (ON C.A.) =09 http://canlii.org/on/cas/onca/2006/2006onca10410.html particularly at= =20para. =09 57.=20 =09 =20 =09 It looks like the Ont CA wouldn't agree that there can't be a gain-ba= sed =09 claim in tort, at least where we're dealing with intentional torts, a= lthough =09 the statement in the case isn't restricted to intentional torts. "The= =09 appellants' submission ignores the conceptual basis of tort law, whic= h is =09 restitutionary. The difference between the contract price and the pr= ice at =09 which the appellants would otherwise have had to purchase the goods i= s a =09 cost properly borne by the appellants."=20 =09 =20 =09 This was a deceit claim were the recovery where the recovery was the = gain =09 the plaintiff would not have made but for the tort, not the plaintiff= 's =09 loss.On the evidence, there was no loss on this issue. 3Com sold the = goods =09 for $X based on the deceit. The price would have been higher, otherwi= se. As =09 I understand the evidence, there was no evidence that the goods could= =20have =09 been sold for the higher price to anybody, so 3 Com didn't sustain an= y loss =09 on the sale of these goods based on the evidence. It just didn't make= =20as =09 muchbecause on the sale. I suspect that was also the reality. =09 =20 =09 There's nothing in the case to indicate waiver of tort was raised. I = don't =09 have it at my fingertips but there's a passaage in Maddaugh and McCam= us =09 specifically suggesting that waiver of tort might apply in a deceit-b= ased =09 claim. The description in M&M is literally the facts of 3Com. =09 =20 =09 David =09 =20 =09 =20 =09 -----Original Message----- =09 From: owner-obligations@uwo.ca =20 =09 [mailto:owner-obligations@uwo.ca] On Behalf Of Lionel Smith =09 Sent: February 15, 2007 12:20 PM =09 To: obligations@uwo.ca ; RDG =09 Subject: ODG: Waiver of tort: Heward v. Eli Lilly & Co. =09 =20 =09 This case is now on canlii, at =09 http://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html =09 =20 =09 =20 =09 At [25] we find this: =09 =20 =09 "In attempting to formulate coherent principles that would explain an= d =09 rationalise past decisions to accommodate the relatively recent recog= nition =09 of a general law of restitution, there is no doubt that the learned =09 commentators have greatly contributed to, and will quite properly con= tinue =09 to influence, its development. However, as the reasons of Epstein J. =09 indicate, their views have not been uniform despite the enviable degr= ee of =09 confidence with which they have sometimes been asserted." =09 =20 =09 But it is not only the academics who get sideswiped: =09 =20 =09 [14]: "The case for certifying the proceeding was very strongly, and =09 comprehensibly, contested by counsel for the defendants on the basis = of the =09 evidence and the authorities. They left no stone unturned and, in my =09 opinion, turned over quite a few that were extraneous to the case pre= sented =09 on behalf of the plaintiffs." =09 =20 =09 Overall there is a good review of different road maps of restitution = but =09 because this is only a certification application, the judge does not = need to =09 pick one, only deciding that it is arguable that a claim in negligenc= e might =09 lead to a gain-based remedy, and [38] that "it is not plain and obvio= us that =09 a claim based on waiver of tort must satisfy the three-part test for = unjust =09 enrichment". While he concludes that it is arguable that unjust enric= hment =09 can be established without showing any deprivation, he decides that i= n a =09 case where the only facts pleaded involve negligence, there is no roo= m for a =09 separate claim in unjust enrichment. =09 =20 =09 Unfortunately these class actions rarely go trial in Canada--they ten= d to =09 settle after certification--so we may never get actual decisions on t= he =09 points that he decided were arguable. =09 =20 =09 Neil, what did you find objectionable in the judgment? Is it that you= =20agreed =09 with the BCSC in Reid, that there can be no gain-based claim for negl= igence? =09 That may well be right, but Reid seems much less thorough than this =09 judgment; Gerow J simply assumed there that all gain-based claims are= =20claims =09 in unjust enrichment (which in my view is inconsistent with Soulos v =09 Korkontzilas). In the earlier discussion on the RDG of Cullity J's ot= her =09 judgments, some people read him as saying that waiver of tort is an =09 independent cause of action; I don't think this new judgment is open = to that =09 criticism. He is not deciding whether waiver of tort is (a) a gain-ba= sed =09 claim for a wrong or (b) part of unjust enrichment, but I don't think= =20he can =09 be read as saying that it is neither one. =09 =20 =09 I do think that in [64] Cullity J. may have misunderstood Peter Birks= ' =09 position. =09 =20 =09 Lionel =09 =20 =09 =20 =09 =20 =09 On 8/2/07 17:16, "Neil Guthrie" > wrot= e: =09 =20 =09 =20 =09 Justice Cullity of the Ontario Superior Court is at it again, this=20 =09 time in Heward v. Eli Lilly & Co., which was released the day before = =09 yesterday (not yet posted to www.canlii.org <= http://www.canlii.org> , but =09 =20 =09 presumably in a day=20 =09 =20 =09 or two). There the judge makes his most expansive comments to date o= n=20 =09 waiver of tort, expressing disagreement with the recent decision in=20 =09 Reid v. Ford Motor from British Columbia in finding that a remedy=20 =09 depends on the three-part test for unjust enrichment from Pettkus v. =09 =20 =09 Becker. =09 =20 =09 In related news, the Supreme Court of Canada is considering an=20 =09 application for leave to appeal the refusal of the Ont. CA to hear th= e =09 =20 =09 appeal in Serhan v. =09 =20 =09 Johnson & Johnson, the decision that made waiver of tort a live issue= =20 =09 in Ontario -- and for which we also have Justice Cullity to thank. =09 =20 =09 =20 =09 =20 =09 Neil Guthrie =09 Tel : (416) 869-5230 =09 Fax : (416) 947-0866 =09 nguthrie@stikeman.com =20 =09 =20 =09 Stikeman Elliott LLP =09 Barristers & Solicitors =09 5300 Commerce Court West =09 199 Bay Street =09 Toronto, Ontario M5L 1B9 =09 Tel: (416) 869-5500 =09 www.stikeman.com = =20 =09 =20 =09 Montr=E9al * Toronto * Ottawa * Calgary * Vancouver * New York * Lond= on=20 =09 * Sydney =09 =20 =09 =20 =09 =20 =09 =20 =09 -- =09 =20 =09 This message was delivered through the Obligations Discussion Group, = an international mailing list devoted to all aspects of the law of obliga= tions. To be added or deleted from the list please send a message to

. To make a = posting to all group members, send a message to . The list is run by Jason Neyers of the Universi= ty of Western Ontario, tel. (+1) 519 661-2111 x. 88435,email . The list is archived at . Archived messag= es are not to be cited in published works without prior approval of the a= uthor. =09 =20 =09 --=20 =09 Jason Neyers =09 January Term Director =09 Associate Professor of Law =09 Faculty of Law =09 University of Western Ontario =09 N6A 3K7 =09 (519) 661-2111 x. 88435=20 This e-mail message has been scanned for Viruses and Content and cleared = by MailMarshal - For more information please visit www.marshalsoftware.co= m=20 ____________________________________________________________________ This= =20message was delivered through the Restitution Discussion Group, an int= ernational internet LISTSERV devoted to all aspects of the law of unjust = enrichment. To subscribe, send "subscribe enrichment" in the body of a me= ssage to . To unsubscribe, send "signoff enrich= ment" to the same address. To make a posting to all group members, send t= o . The list is run by Lionel Smith of McGill= =20University, . ________________________________= ____________________________________ This message was delivered through t= he Restitution Discussion Group, an international internet LISTSERV devot= ed to all aspects of the law of unjust enrichment. To subscribe, send "su= bscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make= =20a posting to all group members, send to . = The list is run by Lionel Smith of McGill University, . __________________________________________________________________= __ This message was delivered through the Restitution Discussion Group, a= n international internet LISTSERV devoted to all aspects of the law of un= just enrichment. To subscribe, send "subscribe enrichment" in the body of= =20a message to . To unsubscribe, send "signoff= =20enrichment" to the same address. To make a posting to all group member= s, send to . The list is run by Lionel Smith = of McGill University, .=20 ______________________________________________________________________ This email has been scanned by the MessageLabs Email Security System. For more information please visit http://www.messagelabs.com/email=20 ______________________________________________________________________ #########################################################################= ############ This e-mail message has been scanned for Viruses and Content and cleared = by MailMarshal For more information please visit www.marshalsoftware.com #########################################################################= ############ ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ------_=_NextPart_001_01C75AAA.500B02AC Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable

For John= – the reference to the trespass case is below. The conc= eptual furniture is reasonably well arranged in thi= s case although articulated in orthodox damages type language. As with many ex British colonial jurisdictions<= SPAN LANG=3D"en-us"> the case contains a useful summary of English c= ase law (on the user principle)

Waugh (No2) v A-G [2006] 2 NZLR 8= 12.

For a useful discursive academic art= icle by William S= wadling on restitution for tortious wrongs see “<= SPAN LANG=3D"en-us">The Myth of Phillips v Homfray” published in The Search for Principle – Essays in Honour= =20of Lord Goff of Chieveley (OUP, eds. Swadling and Jones).

Another<= /SPAN> interesting point is the question of election before judgment of a restitutionary remedy over a loss based damages = award. Most Commonwealth judges assume because of the PC’s decision in Tang Min Sit v Capacious Investments that it is one or the other. I recall seeing<= SPAN LANG=3D"en-us"> an academic article a few years ago sugge= sting that a better policy response= =20was a rule aga= inst excessive remedial combinations. I= n my nuisance case the damage to the plaintiffs and the gain to the defendant were unconnected i= n the sense that there was no equivalence in value nor in identity. = =20Accordingly logic would suggest that if you wreck my farm’s infrastructure through water diverted = onto my land that= =20would normally travel down a floodplain and onto your farm by your stopbank erected<= SPAN LANG=3D"en-us"> on your boundary<= SPAN LANG=3D"en-us"> to keep water of your own farm and thus concurrently damage me and make greater re= turns (in a non s= topbank situation) then you should= =20account to me for your profit (restitution for g= ain based on the wrong of nuisance) as well as paying me to fix the = fences and resowi= ng of grass etc. This example I believe show<= /SPAN>s the fallacy in such election and = the sense in the policy being a rule against excessive remedial combinati= ons.

Kalev

Fr= om: John Kimbell [mailto:John.Kimbell@= quadrantchambers.com]
= Sent:<= SPAN LANG=3D"en-us"> Wednesday, 28 Februar= y 2007 6:17 a.m.
= To: Kalev Crossland
= Subject= : RE: [RDG] ODG: Wai= ver of tort[Scanned]

Dear Kalev, I would be interested in the reference if y= ou have it to hand.

=A0

John Kimbell<= SPAN LANG=3D"en-us">

-----= Original Message-----
= From:<= SPAN LANG=3D"en-us"> Enrichment - Restitut= ion & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Kalev Crossland
= Sent:<= SPAN LANG=3D"en-us"> 27 February 2007 03:5= 0
= To: ENRICHMENT@LISTS.MCGILL= .CA
= Subject= : Re: [RDG] ODG: Wai= ver of tort[Scanned]

Dear All

I am a very = irregular contributor to the group but the current discussion piqued my i= nterest due to acting in a nuisance action where flooding was kept off a = farm from a stopbank on the defendant’s =A0resulting that farm bein= g much more profitable than before the stopbank went up.=A0 Water went el= sewhere onto neighbouring farms causing a nuisance.

Whilst not e= specially well known in some jurisdictions such as my own (NZ) my underst= anding is that gain based relief in tort is conceptually sound.=A0 It jus= t does not come up so often because normally the defendant has not gained= =20– rather the defendant has to pay for the injury to the plaintif= f.=A0 But for some torts – particularly proprietary ones, such as n= uisance where the plaintiff has not suffered any provable loss (or the lo= ss is not equivalent to the gain by the wrongdoer) but the defendant has = made some sort of profit from his or her wrongful act then the Court can = strip that profit out from the defendant on that basis that one cannot pr= ofit for a wrong. =A0Graham Virgo’s recent edition book has a coupl= e of very good chapters on this.=A0

A recent cas= e in trespass here in NZ (defendant tunneling under plaintiff’s lan= d) had a plaintiff awarded a notional lease payment despite not having su= ffered any loss. I can dig out the reference if anyone is interested.

Kalev Crossl= and

Fr= om: Enrichment - Res= titution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA]<= SPAN LANG=3D"en-us"> On Behalf Of Lionel Smith, Prof.
= Sent:<= SPAN LANG=3D"en-us"> Tuesday, 27 February = 2007 3:32 p.m.
= To: ENRICHMENT@LISTS.MCGILL= .CA
= Subject= : Re: [RDG] ODG: Wai= ver of tort

I’m confused; did anyone say there can’t be a ga= in-based claim in tort (as opposed to arguments about whether specific to= rts (especially negligence) will support it)?

Lionel

=A0

=A0

=A0

David Cheife= tz wrote:<= /SPAN>

Lionel,

On tort & gain-based awards:

Look at, if you haven't seen it, 3com Corporation v. Zo= rin International

Corporation, 2006 CanLII 18351 (ON C.A.)<= /P>
<= SPAN LANG=3D"en-us">http://canlii.org/on/cas/onca/2006/2006onca10410.html particular= ly at para.

57.

=A0

It looks like the Ont CA wouldn't agree that there can'= t be a gain-based

claim in tort, at least where we're dealing with intent= ional torts, although

the statement in the case isn't restricted to intention= al torts. "The

appellants’ submission ignores the conceptual bas= is of tort law, which is

restitutionary.=A0 The difference between the contract = price and the price at

which the appellants would otherwise have had to purcha= se the goods is a

cost properly borne by the appellants."

=A0

This was a deceit claim were the recovery where the rec= overy was the gain

the plaintiff would not have made but for the tort, not= =20the plaintiff's

loss.On the evidence, there was no loss on this issue. = 3Com sold the goods

for $X based on the deceit. The price would have been h= igher, otherwise. As

I understand the evidence, there was no evidence that t= he goods could have

been sold for the higher price to anybody, so 3 Com did= n't sustain any loss

on the sale of these goods based on the evidence. It ju= st didn't make as

muchbecause on the sale. I suspect that was also the re= ality.

=A0

There's nothing in the case to indicate waiver of tort = was raised. I don't

have it at my fingertips but there's a passaage in Madd= augh and McCamus

specifically suggesting that waiver of tort might apply= =20in a deceit-based

claim. The description in M&M is literally the fact= s of 3Com.

=A0

David

=A0

=A0

-----Original Message-----

From: <= SPAN LANG=3D"en-us">owner-obligations@uwo.ca = <mailto:owner-obligations@uwo.ca>

[m= ailto:owner-obligations@uwo.ca] On Behalf Of Lionel Smith

Sent: February 15, 2007 12:20 PM

To: oblig= ations@uwo.ca <m= ailto:obligations@uwo.ca> ; RDG

Subject: ODG: Waiver of tort: Heward v. Eli Lilly &= =20Co.

This case is now on canlii, at

http://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html<= /U>

<http://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html>=

=A0

At [25] we find this:

"In attempting to formulate coherent principles th= at would explain and

rationalise past decisions to accommodate the relativel= y recent recognition

of a general law of restitution, there is no doubt that= =20the learned

commentators have greatly contributed to, and will quit= e properly continue

to influence, its development. However, as the reasons = of Epstein J.

indicate, their views have not been uniform despite the= =20enviable degree of

confidence with which they have sometimes been asserted= ."

But it is not only the academics who get sideswiped:

[14]: "The case for certifying the proceeding was = very strongly, and

comprehensibly, contested by counsel for the defendants= =20on the basis of the

evidence and the authorities. They left no stone unturn= ed and, in my

opinion, turned over quite a few that were extraneous t= o the case presented

on behalf of the plaintiffs."

Overall there is a good review of different road maps o= f restitution but

because this is only a certification application, the j= udge does not need to

pick one, only deciding that it is arguable that a clai= m in negligence might

lead to a gain-based remedy, and [38] that "it is = not plain and obvious that

a claim based on waiver of tort must satisfy the three-= part test for unjust

enrichment". While he concludes that it is arguabl= e that unjust enrichment

can be established without showing any deprivation, he = decides that in a

case where the only facts pleaded involve negligence, t= here is no room for a

separate claim in unjust enrichment.

Unfortunately these class actions rarely go trial in Ca= nada--they tend to

settle after certification--so we may never get actual = decisions on the

points that he decided were arguable.
=

Neil, what did you find objectionable in the judgment? = Is it that you agreed

with the BCSC in Reid, that there can be no gain-based = claim for negligence?

That may well be right, but Reid seems much less thorou= gh than this

judgment; Gerow J simply assumed there that all gain-ba= sed claims are claims

in unjust enrichment (which in my view is inconsistent = with Soulos v

Korkontzilas). In the earlier discussion on the RDG of = Cullity J's other

judgments, some people read him as saying that waiver o= f tort is an

independent cause of action; I don't think this new jud= gment is open to that

criticism. He is not deciding whether waiver of tort is= =20(a) a gain-based

claim for a wrong or (b) part of unjust enrichment, but= =20I don't think he can

be read as saying that it is neither one.=

I do think that in [64] Cullity J. may have misundersto= od Peter Birks'

position.

Lionel

=A0

=A0

=A0

On 8/2/07 17:16, "Neil Guthrie" <NGuthrie@STIKEMAN.COM<= /SPAN>

<mailto:NGuthrie@S= TIKEMAN.COM> > wrote:

=A0=A0

Justice Cullity of the Ontario Superior Court is at it = again, this

time in Heward v. Eli Lilly & Co., which was releas= ed the day before

yesterday (not yet posted to www.canlii.org= =20<= /SPAN><http://www.canlii.org> , but

=A0=A0=A0

presumably in a day

=A0=A0

or two).=A0 There the judge makes his most expansive co= mments to date on

waiver of tort, expressing disagreement with the recent= =20decision in

Reid v. Ford Motor from British Columbia in finding tha= t a remedy

depends on the three-part test for unjust enrichment fr= om Pettkus v.

=A0=A0=A0

Becker.

=A0

In related news, the Supreme Court of Canada is conside= ring an

application for leave to appeal the refusal of the Ont.= =20CA to hear the

=A0=A0=A0

appeal in Serhan v.

=A0

Johnson & Johnson, the decision that made waiver of= =20tort a live issue

in Ontario -- and for which we also have Justice Cullit= y to thank.

=A0

=A0

Neil Guthrie

Tel : (416) 869-5230

Fax : (416) 947-0866

nguthrie@stikeman.com= <mailto:ngut= hrie@stikeman.com>

=A0

Stikeman Elliott LLP

Barristers & Solicitors

5300 Commerce Court West

199 Bay Street

Toronto, Ontario M5L 1B9

Tel: (416) 869-5500

www.stikeman.com<= /FONT> <http://www.stikeman.com&= gt;

=A0

Montr=E9al * Toronto * Ottawa * Calgary * Vancouver * N= ew York * London

* Sydney

=A0=A0=A0

=A0

=A0

=A0

--

=A0

This message was delivered through the Obligations Disc= ussion Group, an international mailing list devoted to all aspects of the= =20law of obligations. To be added or deleted from the list please send a= =20message to <= obligations-request@uwo.ca>. To make a posting to all group mem= bers, send a message to &l= t;obligations@uwo.ca>. The list is run by Jason Neyers of the= =20University of Western Ontario, tel. (+1) 519 661-2111 x. 88435,email <jneyers@uwo.ca>= . Th= e list is archived at <= SPAN LANG=3D"en-us"><http://www.ucc.ie/law/odg/home.htm><= FONT COLOR=3D"#000000" SIZE=3D2 FACE=3D"Courier New">. Archived messages = are not to be cited in published works without prior approval of the auth= or.

=A0

--

Jason Neyers

January Term Director

Associate Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435

This e-mail message has been scanned= =20for Viruses and Content and cleared by<= /B> MailMarshal - For more = information please visit www.marshalsoftware.com<= B>

____________________________________= ________________________________ This message was delivered through the R= estitution Discussion Group, an international internet LISTSERV devoted t= o all aspects of the law of unjust enrichment. To subscribe, send "s= ubscribe enrichment" in the body of a message to <listserv@lists.= mcgill.ca>. To unsubscribe, send "signoff enrichment" to the= =20same address. To make a posting to all group members, send to <enri= chment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill Uni= versity, <lionel.smith@mcgill.ca>. ________________________________= ____________________________________ This message was delivered through t= he Restitution Discussion Group, an international internet LISTSERV devot= ed to all aspects of the law of unjust enrichment. To subscribe, send &qu= ot;subscribe enrichment" in the body of a message to <listserv@li= sts.mcgill.ca>. To unsubscribe, send "signoff enrichment" to= =20the same address. To make a posting to all group members, send to <= enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill= =20University, <lionel.smith@mcgill.ca>. __________________________= __________________________________________ This message was delivered thr= ough the Restitution Discussion Group, an international internet LISTSERV= =20devoted to all aspects of the law of unjust enrichment. To subscribe, = send "subscribe enrichment" in the body of a message to <lis= tserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment&= quot; to the same address. To make a posting to all group members, send t= o <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of = McGill University, <lionel.smith@mcgill.ca>.

____________________________________= __________________________________
This email has been scanned by the MessageLabs Email Security System.
= For more information please visit http://www.messagelabs.com/email
______________________________________________________________________

This e-mail message has been scanned for Viruses and Content and cleared = by=20 MailMarshal -=20 For more information please visit =20 =20 www.marshalsoftware.com=20
____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. ------_=_NextPart_001_01C75AAA.500B02AC-- ========================================================================= Date: Wed, 28 Feb 2007 09:36:38 -0000 Reply-To: Duncan.Sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Duncan Sheehan (LAW)" Organization: University of East Anglia Subject: Re: ODG: Waiver of tort[Scanned] Comments: To: Kalev Crossland In-Reply-To: MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_0013_01C75B1B.F248A440" This is a multi-part message in MIME format. ------=_NextPart_000_0013_01C75B1B.F248A440 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear all,=20 =20 For those who do not know, the article Kalev refers to (I assume) is = Stephen Watterson ' Alternative and Cumulative Remedies: what is the = Difference?' [2003] RLR 7. Stephen will have to correct me if I'm wrong about his argument, but I think in Kalev's nuisance example of the construction of = the stopbank, the injured farmer can recover the higher of the defendant's profits, or the claimant's loss. Excessive remedial cumulations refer = to the requirement that the remedies not exceeed the minimum necessary to achieve the law's remedial aims. A remedy directed at compensating loss = may indirectly achieve the aims of restitution. The upshot is that where compensatory and gain-based damages are available for the same wrongful conduct (as here, the construction of the stopbank and consequent = diversion of the water) they are alternatives - both are not available in full measure. That of course assumes (like Kalev does) that disgorgement = (account of profits) is available for nuisance - which is, I guess, another can = of worms altogether.=20 =20 Duncan=20 =20 Dr Duncan Sheehan Senior Lecturer in Law Director of Research Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom=20 =20 _____ =20 From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Kalev Crossland Sent: Tuesday, February 27, 2007 8:03 PM To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG: Waiver of tort[Scanned] For John =96 the reference to the trespass case is below. The = conceptual furniture is reasonably well arranged in this case although articulated = in orthodox damages type language. As with many ex British colonial jurisdictions the case contains a useful summary of English case law (on = the user principle) =20 Waugh (No2) v A-G [2006] 2 NZLR 812. For a useful discursive academic article by William Swadling on = restitution for tortious wrongs see =93The Myth of Phillips v Homfray=94 published = in The Search for Principle =96 Essays in Honour of Lord Goff of Chieveley = (OUP, eds. Swadling and Jones). Another interesting point is the question of election before judgment of = a restitutionary remedy over a loss based damages award. Most = Commonwealth judges assume because of the PC=92s decision in Tang Min Sit v Capacious Investments that it is one or the other. I recall seeing an academic article a few years ago suggesting that a better policy response was a = rule against excessive remedial combinations. In my nuisance case the damage = to the plaintiffs and the gain to the defendant were unconnected in the = sense that there was no equivalence in value nor in identity. Accordingly = logic would suggest that if you wreck my farm=92s infrastructure through water diverted onto my land that would normally travel down a floodplain and = onto your farm by your stopbank erected on your boundary to keep water of = your own farm and thus concurrently damage me and make greater returns (in a = non stopbank situation) then you should account to me for your profit (restitution for gain based on the wrong of nuisance) as well as paying = me to fix the fences and resowing of grass etc. This example I believe = shows the fallacy in such election and the sense in the policy being a rule against excessive remedial combinations. Kalev From: John Kimbell [mailto:John.Kimbell@quadrantchambers.com] Sent: Wednesday, 28 February 2007 6:17 a.m. To: Kalev Crossland Subject: RE: [RDG] ODG: Waiver of tort[Scanned] Dear Kalev, I would be interested in the reference if you have it to = hand. =20 John Kimbell -----Original Message----- From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Kalev Crossland Sent: 27 February 2007 03:50 To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG: Waiver of tort[Scanned] Dear All I am a very irregular contributor to the group but the current = discussion piqued my interest due to acting in a nuisance action where flooding was kept off a farm from a stopbank on the defendant=92s resulting that = farm being much more profitable than before the stopbank went up. Water went elsewhere onto neighbouring farms causing a nuisance. Whilst not especially well known in some jurisdictions such as my own = (NZ) my understanding is that gain based relief in tort is conceptually = sound. It just does not come up so often because normally the defendant has not gained =96 rather the defendant has to pay for the injury to the = plaintiff. But for some torts =96 particularly proprietary ones, such as nuisance = where the plaintiff has not suffered any provable loss (or the loss is not equivalent to the gain by the wrongdoer) but the defendant has made some sort of profit from his or her wrongful act then the Court can strip = that profit out from the defendant on that basis that one cannot profit for a wrong. Graham Virgo=92s recent edition book has a couple of very good chapters on this. =20 A recent case in trespass here in NZ (defendant tunneling under = plaintiff=92s land) had a plaintiff awarded a notional lease payment despite not = having suffered any loss. I can dig out the reference if anyone is interested.=20 Kalev Crossland From: Enrichment - Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Lionel Smith, Prof. Sent: Tuesday, 27 February 2007 3:32 p.m. To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG: Waiver of tort I=92m confused; did anyone say there can=92t be a gain-based claim in tort (as opposed to arguments about whether specific torts (especially negligence) will support it)? Lionel =20 =20 =20 David Cheifetz wrote: Lionel, =20 On tort & gain-based awards: =20 Look at, if you haven't seen it, 3com Corporation v. Zorin International Corporation, 2006 CanLII 18351 (ON C.A.) http://canlii.org/on/cas/onca/2006/2006onca10410.html particularly at = para. 57.=20 =20 It looks like the Ont CA wouldn't agree that there can't be a gain-based claim in tort, at least where we're dealing with intentional torts, although the statement in the case isn't restricted to intentional torts. "The appellants=92 submission ignores the conceptual basis of tort law, which is restitutionary. The difference between the contract price and the price at which the appellants would otherwise have had to purchase the goods is a cost properly borne by the appellants."=20 =20 This was a deceit claim were the recovery where the recovery was the gain the plaintiff would not have made but for the tort, not the plaintiff's loss.On the evidence, there was no loss on this issue. 3Com sold the goods for $X based on the deceit. The price would have been higher, otherwise. As I understand the evidence, there was no evidence that the goods could have been sold for the higher price to anybody, so 3 Com didn't sustain any loss on the sale of these goods based on the evidence. It just didn't make as muchbecause on the sale. I suspect that was also the reality. =20 There's nothing in the case to indicate waiver of tort was raised. I don't have it at my fingertips but there's a passaage in Maddaugh and McCamus specifically suggesting that waiver of tort might apply in a deceit-based claim. The description in M&M is literally the facts of 3Com. =20 David =20 =20 -----Original Message----- From: owner-obligations@uwo.ca [ mailto:owner-obligations@uwo.ca] On Behalf Of Lionel Smith Sent: February 15, 2007 12:20 PM To: obligations@uwo.ca ; RDG Subject: ODG: Waiver of tort: Heward v. Eli Lilly & Co. =20 This case is now on canlii, at http://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html =20 =20 At [25] we find this: =20 "In attempting to formulate coherent principles that would explain and rationalise past decisions to accommodate the relatively recent recognition of a general law of restitution, there is no doubt that the learned commentators have greatly contributed to, and will quite properly continue to influence, its development. However, as the reasons of Epstein J. indicate, their views have not been uniform despite the enviable degree of confidence with which they have sometimes been asserted." =20 But it is not only the academics who get sideswiped: =20 [14]: "The case for certifying the proceeding was very strongly, and comprehensibly, contested by counsel for the defendants on the basis of the evidence and the authorities. They left no stone unturned and, in my opinion, turned over quite a few that were extraneous to the case presented on behalf of the plaintiffs." =20 Overall there is a good review of different road maps of restitution but because this is only a certification application, the judge does not need to pick one, only deciding that it is arguable that a claim in negligence might lead to a gain-based remedy, and [38] that "it is not plain and obvious that a claim based on waiver of tort must satisfy the three-part test for unjust enrichment". While he concludes that it is arguable that unjust enrichment can be established without showing any deprivation, he decides that in a case where the only facts pleaded involve negligence, there is no room for a separate claim in unjust enrichment. =20 Unfortunately these class actions rarely go trial in Canada--they tend to settle after certification--so we may never get actual decisions on the points that he decided were arguable. =20 Neil, what did you find objectionable in the judgment? Is it that you agreed with the BCSC in Reid, that there can be no gain-based claim for negligence? That may well be right, but Reid seems much less thorough than this judgment; Gerow J simply assumed there that all gain-based claims are claims in unjust enrichment (which in my view is inconsistent with Soulos v Korkontzilas). In the earlier discussion on the RDG of Cullity J's other judgments, some people read him as saying that waiver of tort is an independent cause of action; I don't think this new judgment is open to that criticism. He is not deciding whether waiver of tort is (a) a gain-based claim for a wrong or (b) part of unjust enrichment, but I don't think he can be read as saying that it is neither one. =20 I do think that in [64] Cullity J. may have misunderstood Peter Birks' position. =20 Lionel =20 =20 =20 On 8/2/07 17:16, "Neil Guthrie" < NGuthrie@STIKEMAN.COM > wrote: =20 =20 Justice Cullity of the Ontario Superior Court is at it again, this=20 time in Heward v. Eli Lilly & Co., which was released the day before yesterday (not yet posted to www.canlii.org , but =20 presumably in a day=20 =20 or two). There the judge makes his most expansive comments to date on=20 waiver of tort, expressing disagreement with the recent decision in=20 Reid v. Ford Motor from British Columbia in finding that a remedy=20 depends on the three-part test for unjust enrichment from Pettkus v. =20 Becker. =20 In related news, the Supreme Court of Canada is considering an=20 application for leave to appeal the refusal of the Ont. CA to hear the =20 appeal in Serhan v. =20 Johnson & Johnson, the decision that made waiver of tort a live issue=20 in Ontario -- and for which we also have Justice Cullity to thank. =20 =20 =20 Neil Guthrie Tel : (416) 869-5230 Fax : (416) 947-0866 nguthrie@stikeman.com =20 =20 Stikeman Elliott LLP Barristers & Solicitors 5300 Commerce Court West 199 Bay Street Toronto, Ontario M5L 1B9 Tel: (416) 869-5500 www.stikeman.com =20 =20 Montr=E9al * Toronto * Ottawa * Calgary * Vancouver * New York * London=20 * Sydney =20 =20 =20 =20 -- =20 This message was delivered through the Obligations Discussion Group, an international mailing list devoted to all aspects of the law of obligations. To be added or deleted from the list please send a message = to . To = make a posting to all group members, send a message to = . The list is run by Jason Neyers of the University = of Western Ontario, tel. (+1) 519 661-2111 x. 88435,email . The list is archived at = . Archived messages are not to be cited in published works without prior approval of the author. =20 --=20 Jason Neyers January Term Director Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435=20 This e-mail message has been scanned for Viruses and Content and cleared = by MailMarshal - For more information please visit www.marshalsoftware.com=20 ____________________________________________________________________ = This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of = unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ____________________________________________________________________ = This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of = unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ____________________________________________________________________ = This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of = unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, .=20 ______________________________________________________________________ This email has been scanned by the MessageLabs Email Security System. For more information please visit http://www.messagelabs.com/email ______________________________________________________________________ _____ =20 This e-mail message has been scanned for Viruses and Content and cleared = by MailMarshal - For more information please visit www.marshalsoftware.com=20 _____ =20 ____________________________________________________________________ = This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of = unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, .=20 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ------=_NextPart_000_0013_01C75B1B.F248A440 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable RE: [RDG] ODG: Waiver of tort[Scanned]
Dear all,

For those who do not know, the article Kalev = refers to (I=20 assume) is Stephen Watterson ' Alternative and Cumulative Remedies: what = is the=20 Difference?' [2003] RLR 7. Stephen will have to correct me if I'm wrong = about=20 his argument, but I think in Kalev's nuisance example of = the construction=20 of the stopbank, the injured farmer can recover the higher of the=20 defendant's profits, or the claimant's loss. Excessive remedial=20 cumulations refer to the requirement that the remedies not exceeed the = minimum=20 necessary to achieve the law's remedial aims. A remedy directed at = compensating=20 loss may indirectly achieve the aims of restitution. The upshot is that = where=20 compensatory and gain-based damages are available for the same wrongful = conduct=20 (as here, the construction of the stopbank and consequent diversion of = the=20 water) they are alternatives - both are not available in full measure. = That of=20 course assumes (like Kalev does) that disgorgement (account of = profits) is=20 available for nuisance - which is, I guess, another can of worms = altogether.=20

Duncan

Dr Duncan Sheehan
Senior Lecturer in = Law
Director of=20 Research
Norwich Law School
University of East Anglia
Norwich = NR4=20 7TJ
United Kingdom

From: Enrichment - Restitution = & Unjust=20 Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL.CA] On = Behalf Of=20 Kalev Crossland
Sent: Tuesday, February 27, 2007 8:03=20 PM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: = [RDG] ODG:=20 Waiver of tort[Scanned]

For John =96 the reference to the trespass = case is=20 below. The conceptual furniture is = reasonably = well = arranged in this=20 case although articulated in orthodox damages type = language. As with=20 many ex British colonial jurisdictions the case=20 contains a useful summary of English case law = (on the=20 user=20 principle)

Waugh (No2) v = A-G [2006] 2 NZLR 812.

For a useful discursive academic=20 article by William = Swadling on=20 restitution for tortious wrongs see =93The Myth of=20 Phillips v Homfray=94 = published=20 in The = Search for=20 Principle=20 =96 = Essays in=20 Honour of Lord Goff of Chieveley (OUP, eds. Swadling and Jones).

Another interesting point=20 is the = question of election before judgment = of a restitutionary remedy over a = loss based=20 damages award. Most Commonwealth judges assume because = of the PC=92s = decision=20 in Tang Min Sit v = Capacious=20 Investments that it is one or the = other. I=20 recall seeing = an academic article a few years = ago=20 suggesting that a better policy response was=20 a rule against = excessive=20 remedial combinations. In my = nuisance case=20 the damage to the=20 plaintiffs and the = gain to the=20 defendant were unconnected in the sense that there was no equivalence = in value=20 nor in identity. Accordingly logic would suggest that if you = wreck my=20 farm=92s infrastructure through water = diverted=20 onto my land that = would=20 normally travel down a floodplain and onto your farm by = your stopbank=20 erected on your=20 boundary to keep = water of your=20 own farm and = thus concurrently=20 damage me and make = greater = returns (in a non stopbank = situation) then you should account to me for your profit (restitution for gain based on the wrong of nuisance) as well as paying = me to fix the = fences=20 and resowing of = grass=20 etc. This = example=20 I = believe shows the = fallacy in=20 such election and the sense in the policy being a rule against = excessive=20 remedial combinations.

Kalev

From: = John Kimbell [mailto:John.Kimbell@qua= drantchambers.com]
Sent: Wednesday, 28 February 2007 6:17 a.m.
To: Kalev Crossland
Subject: = RE: [RDG] ODG:=20 Waiver of tort[Scanned]

Dear Kalev, I would be interested in the reference if you = have it to=20 hand.

John Kimbell

-----Original=20 Message-----
From: = Enrichment -=20 Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL= .CA]=20 On Behalf Of = Kalev Crossland
Sent: = 27 February 2007=20 03:50
To:=20 ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] ODG: Waiver of tort[Scanned]

Dear = All

I am a very = irregular=20 contributor to the group but the current discussion piqued my interest = due to=20 acting in a nuisance action where flooding was kept off a farm from a = stopbank=20 on the defendant=92s resulting that farm being much more = profitable than=20 before the stopbank went up. Water went elsewhere onto = neighbouring=20 farms causing a nuisance.

Whilst not = especially well=20 known in some jurisdictions such as my own (NZ) my understanding is = that gain=20 based relief in tort is conceptually sound. It just does not = come up so=20 often because normally the defendant has not gained =96 rather the = defendant has=20 to pay for the injury to the plaintiff. But for some torts =96=20 particularly proprietary ones, such as nuisance where the plaintiff = has not=20 suffered any provable loss (or the loss is not equivalent to the gain = by the=20 wrongdoer) but the defendant has made some sort of profit from his or = her=20 wrongful act then the Court can strip that profit out from the = defendant on=20 that basis that one cannot profit for a wrong. Graham Virgo=92s = recent=20 edition book has a couple of very good chapters on this. =20

A recent case = in trespass=20 here in NZ (defendant tunneling under plaintiff=92s land) had a = plaintiff=20 awarded a notional lease payment despite not having suffered any loss. = I can=20 dig out the reference if anyone is interested.

Kalev=20 Crossland

From: = Enrichment -=20 Restitution & Unjust Enrichment Legal Issues [mailto:ENRICHMENT@LISTS.MCGILL= .CA]=20 On Behalf Of = Lionel Smith, Prof.
Sent: Tuesday, 27 February 2007 3:32 p.m.
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] ODG: Waiver of tort

I=92m=20 confused; did anyone say there can=92t be a gain-based claim in = tort (as=20 opposed to arguments about whether specific torts (especially = negligence)=20 will support it)?

Lionel

David = Cheifetz=20 wrote:

Lionel,

On tort & gain-based awards:

Look at, if you haven't seen it, 3com Corporation v. = Zorin=20 International

Corporation, 2006 CanLII 18351 (ON = C.A.)

http://canlii.org/on/cas/onca/2006/2006onca10410.html= particularly at=20 para.

57.

It looks like the Ont CA wouldn't agree that there can't = be a=20 gain-based

claim in tort, at least where we're dealing with = intentional torts,=20 although

the statement in the case isn't restricted to intentional = torts.=20 "The

appellants=92 submission ignores the conceptual basis of = tort law,=20 which is

restitutionary. The difference between the contract = price and=20 the price at

which the appellants would otherwise have had to purchase = the goods=20 is a

cost properly borne by the appellants." =

This was a deceit claim were the recovery where the = recovery was=20 the gain

the plaintiff would not have made but for the tort, not = the=20 plaintiff's

loss.On the evidence, there was no loss on this issue. = 3Com sold=20 the goods

for $X based on the deceit. The price would have been = higher,=20 otherwise. As

I understand the evidence, there was no evidence that the = goods=20 could have

been sold for the higher price to anybody, so 3 Com = didn't sustain=20 any loss

on the sale of these goods based on the evidence. It just = didn't=20 make as

muchbecause on the sale. I suspect that was also the=20 reality.

There's nothing in the case to indicate waiver of tort = was raised.=20 I don't

have it at my fingertips but there's a passaage in = Maddaugh and=20 McCamus

specifically suggesting that waiver of tort might apply = in a=20 deceit-based

claim. The description in M&M is literally the facts = of=20 3Com.

David

-----Original Message-----

From: owner-obligations@uwo.ca=20 <mailto:owner-obligations@uwo.ca>

[mailto:owner-obligations@uwo.ca] On Behalf Of = Lionel=20 Smith

Sent: February 15, 2007 12:20 PM

To: obligations@uwo.ca=20 <mailto:obligations@uwo.ca> ; = RDG

Subject: ODG: Waiver of tort: Heward v. Eli Lilly &=20 Co.

This case is now on canlii, at

http://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html=

<http://www.canlii.org/on/cas/onsc/2007/2007onsc10228.html>= ;

At [25] we find this:

"In attempting to formulate coherent principles that = would explain=20 and

rationalise past decisions to accommodate the relatively = recent=20 recognition

of a general law of restitution, there is no doubt that = the=20 learned

commentators have greatly contributed to, and will quite = properly=20 continue

to influence, its development. However, as the reasons of = Epstein=20 J.

indicate, their views have not been uniform despite the = enviable=20 degree of

confidence with which they have sometimes been=20 asserted."

But it is not only the academics who get=20 sideswiped:

[14]: "The case for certifying the proceeding was very = strongly,=20 and

comprehensibly, contested by counsel for the defendants = on the=20 basis of the

evidence and the authorities. They left no stone unturned = and, in=20 my

opinion, turned over quite a few that were extraneous to = the case=20 presented

on behalf of the plaintiffs."

Overall there is a good review of different road maps of=20 restitution but

because this is only a certification application, the = judge does=20 not need to

pick one, only deciding that it is arguable that a claim = in=20 negligence might

lead to a gain-based remedy, and [38] that "it is not = plain and=20 obvious that

a claim based on waiver of tort must satisfy the = three-part test=20 for unjust

enrichment". While he concludes that it is arguable that = unjust=20 enrichment

can be established without showing any deprivation, he = decides that=20 in a

case where the only facts pleaded involve negligence, = there is no=20 room for a

separate claim in unjust enrichment.

Unfortunately these class actions rarely go trial in = Canada--they=20 tend to

settle after certification--so we may never get actual = decisions on=20 the

points that he decided were arguable.

Neil, what did you find objectionable in the judgment? Is = it that=20 you agreed

with the BCSC in Reid, that there can be no gain-based = claim for=20 negligence?

That may well be right, but Reid seems much less thorough = than=20 this

judgment; Gerow J simply assumed there that all = gain-based claims=20 are claims

in unjust enrichment (which in my view is inconsistent = with Soulos=20 v

Korkontzilas). In the earlier discussion on the RDG of = Cullity J's=20 other

judgments, some people read him as saying that waiver of = tort is=20 an

independent cause of action; I don't think this new = judgment is=20 open to that

criticism. He is not deciding whether waiver of tort is = (a) a=20 gain-based

claim for a wrong or (b) part of unjust enrichment, but I = don't=20 think he can

be read as saying that it is neither = one.

I do think that in [64] Cullity J. may have misunderstood = Peter=20 Birks'

position.

Lionel

On 8/2/07 17:16, "Neil Guthrie" <NGuthrie@STIKEMAN.COM

<mailto:NGuthrie@STIKEMAN.COM> > = wrote:



Justice Cullity of the Ontario Superior Court is at it = again, this=20

time in Heward v. Eli Lilly & Co., which was released = the day=20 before

yesterday (not yet posted to=20 www.canlii.org=20 <http://www.canlii.org> , = but



presumably in a day



or two). There the judge makes his most expansive = comments to=20 date on

waiver of tort, expressing disagreement with the recent = decision in=20

Reid v. Ford Motor from British Columbia in finding that = a remedy=20

depends on the three-part test for unjust enrichment from = Pettkus=20 v.



Becker.

=20

In related news, the Supreme Court of Canada is = considering an=20

application for leave to appeal the refusal of the Ont. = CA to hear=20 the



appeal in Serhan v.

=20

Johnson & Johnson, the decision that made waiver of = tort a live=20 issue

in Ontario -- and for which we also have Justice Cullity = to=20 thank.

Neil Guthrie

Tel : (416) 869-5230

Fax : (416) 947-0866

nguthrie@stikeman.com=20 <mailto:nguthrie@stikeman.com>

Stikeman Elliott LLP

Barristers & Solicitors

5300 Commerce Court West

199 Bay Street

Toronto, Ontario M5L 1B9

Tel: (416) 869-5500

www.stikeman.com <http://www.stikeman.com>

Montr=E9al * Toronto * Ottawa * Calgary * Vancouver * New = York *=20 London

* Sydney



--

This message was delivered through the Obligations = Discussion=20 Group, an international mailing list devoted to all aspects of the = law of=20 obligations. To be added or deleted from the list please send a = message=20 to <obligations-request@uwo.ca>. To make a posting = to all group=20 members, send a message to = <obligations@uwo.ca>. The list is run by = Jason Neyers=20 of the University of Western Ontario, tel. (+1) 519 661-2111 x.=20 88435,email <jneyers@uwo.ca>. The list is = archived=20 at <http://www.ucc.ie/law/odg/home.htm>. Archived messages = are not to be=20 cited in published works without prior approval of the=20 author.

--

Jason Neyers

January Term Director

Associate Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435

This e-mail message has been = scanned for=20 Viruses and Content and cleared by MailMarshal - For more information please=20 visit www.marshalsoftware.com

____________________________________________________________= ________=20 This message was delivered through the Restitution Discussion Group, = an=20 international internet LISTSERV devoted to all aspects of the law of = unjust=20 enrichment. To subscribe, send "subscribe enrichment" in the body of a = message=20 to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff = enrichment"=20 to the same address. To make a posting to all group members, send to=20 <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of = McGill=20 University, <lionel.smith@mcgill.ca>.=20 ____________________________________________________________________ = This=20 message was delivered through the Restitution Discussion Group, an=20 international internet LISTSERV devoted to all aspects of the law of = unjust=20 enrichment. To subscribe, send "subscribe enrichment" in the body of a = message=20 to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff = enrichment"=20 to the same address. To make a posting to all group members, send to=20 <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of = McGill=20 University, <lionel.smith@mcgill.ca>.=20 ____________________________________________________________________ = This=20 message was delivered through the Restitution Discussion Group, an=20 international internet LISTSERV devoted to all aspects of the law of = unjust=20 enrichment. To subscribe, send "subscribe enrichment" in the body of a = message=20 to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff = enrichment"=20 to the same address. To make a posting to all group members, send to=20 <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of = McGill=20 University, <lionel.smith@mcgill.ca>.

____________________________________________________________= __________
This=20 email has been scanned by the MessageLabs Email Security = System.
For more=20 information please visit http://www.messagelabs.com/emai= l
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This e-mail message has been scanned for Viruses and Content and = cleared by=20 MailMarshal - For more = information=20 please visit www.marshalsoftware.com=20
____________________________________________________________________ = This=20 message was delivered through the Restitution Discussion Group, an=20 international internet LISTSERV devoted to all aspects of the law of = unjust=20 enrichment. To subscribe, send "subscribe enrichment" in the body of a = message=20 to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff = enrichment"=20 to the same address. To make a posting to all group members, send to=20 <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of = McGill=20 University, <lionel.smith@mcgill.ca>. = ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. ------=_NextPart_000_0013_01C75B1B.F248A440-- ========================================================================= Date: Wed, 28 Feb 2007 11:49:08 +0000 Reply-To: "SW Watterson, Law" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "SW Watterson, Law" Subject: Re: ODG: Waiver of tort MIME-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1; format=flowed Content-Transfer-Encoding: quoted-printable Content-Disposition: inline Dear all, Thanks for this reference, Duncan. This sounds more or less right re: the=20 article. I'm also inclined to prefer your reading of the scenario=20 presented by Kalev. A key point made in the 2003 article was the need to separate the=20 mischief(s) arising from cumulations of compensatory and gain-based=20 damages, from the mechanism(s) appropriate for avoiding it/them. It was sometimes assumed that you had to elect between the awards, because=20 the remedies were inconsistent. The article suggested that this=20 description of the mischief is unfortunate, and that a better description=20 of the mischief in these cases is 'excessive remedial cumulations'. The=20 article defined these as cumulations that would exceed the minimum=20 necessary to achieve the law's remedial aims (compare 'double recovery',=20 which is also dismissed in the article as an inapt description). That insight leaves two questions: (i) when exactly can a cumulation be said to be excessive in this sense? (ii) how do you avoid such excessive cumulations, where you've identified=20 them? As regards (i): the article explained that one situation in which a=20 cumulation would be 'excessive' (on almost everyone's understanding of the=20 aims of compensatory and gain-based awards) is where the awards are made=20 for the same wrongful conduct of the defendant. A fuller and more refined=20 consideration of this question, including the question whether a cumulation = might be regarded as 'excessive' even where the awards are not made for the = same wrongful conduct, was to be dealt with in (owing to other=20 distractions, still pending!) later publications. As regards (ii): once you've identified that a cumulation would be=20 'excessive', the law cannot allow full recovery of both awards to that=20 extent. But the article noted that there are a range of mechanisms which=20 the law could choose to adopt to achieve the outcome. The only thing the=20 law MUST incorporate is a single, minimum prohibition: a court should not=20 allow a claimant to recover, or hold a defendant liable to pay, an amount=20 exceeding that which is required to achieve the law's remedial aims.=20 However, that minimum prohibition can be given practical effect (and, on=20 examination, has been given practical effect) in a number of different = ways. So, in particular: (a) you might require the claimant to elect between awards (pre- or=20 post-quantification); (b) you might leave it to the court to offset/adjust the awards; or (c) the court might make both awards in full, subject to the proviso that=20 recovery pursuant to one award will preclude recovery under the other. The choice is practical, not logically determined. The article observed=20 that where the compensatory and gain-based awards are claimed from the same = claimant, courts have adopted (a) or (b); whereas where the awards arise=20 against multiple defendant, the more likely response is (c). (This same issue is also dealt with in S Watterson, 'An Account of Profits=20 or Damages? The History of Orthodoxy' (2004) OJLS 471, re-examines the IP=20 orthodoxy that you have to make an informed, pre-quantification election). Hope this helps. Best wishes Stephen ---------------------- Stephen Watterson School of Law Wills Memorial Building Queen's Road Clifton Bristol BS8 1RJ E-mail: Stephen.Watterson@bristol.ac.uk Work no: 0117 954 5349 _________________________________________________________________ Date: 28 February 2007 09:36 +0000 From: "Duncan Sheehan (LAW)" To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG: Waiver of tort[Scanned] Dear all, For those who do not know, the article Kalev refers to (I assume) is=20 Stephen Watterson ' Alternative and Cumulative Remedies: what is the=20 Difference?' [2003] RLR 7. Stephen will have to correct me if I'm wrong=20 about his argument, but I think in Kalev's nuisance example of the=20 construction of the stopbank, the injured farmer can recover the higher of=20 the defendant's profits, or the claimant's loss. Excessive remedial=20 cumulations refer to the requirement that the remedies not exceeed the=20 minimum necessary to achieve the law's remedial aims. A remedy directed at=20 compensating loss may indirectly achieve the aims of restitution. The=20 upshot is that where compensatory and gain-based damages are available for=20 the same wrongful conduct (as here, the construction of the stopbank and=20 consequent diversion of the water) they are alternatives - both are not=20 available in full measure. That of course assumes (like Kalev does) that=20 disgorgement (account of profits) is available for nuisance - which is, I=20 guess, another can of worms altogether. Duncan Dr Duncan Sheehan Senior Lecturer in Law Director of Research Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom __________________________________________________ From: Enrichment - Restitution & Unjust Enrichment Legal Issues=20 [mailto:ENRICHMENT@LISTS.MCGILL.CA] On Behalf Of Kalev Crossland Sent: Tuesday, February 27, 2007 8:03 PM To: ENRICHMENT@LISTS.MCGILL.CA Subject: Re: [RDG] ODG: Waiver of tort[Scanned] For John ? the reference to the trespass case is below. The conceptual=20 furniture is reasonably well arranged in this case although articulated in=20 orthodox damages type language. As with many ex British colonial=20 jurisdictions the case contains a useful summary of English case law (on=20 the user principle) Waugh (No2) v A-G [2006] 2 NZLR 812. For a useful discursive academic article by William Swadling on restitution = for tortious wrongs see =93The Myth of Phillips v Homfray=94 published in = The=20 Search for Principle ? Essays in Honour of Lord Goff of Chieveley (OUP,=20 eds. Swadling and Jones). Another interesting point is the question of election before judgment of a=20 restitutionary remedy over a loss based damages award. Most Commonwealth=20 judges assume because of the PC=92s decision in Tang Min Sit v Capacious=20 Investments that it is one or the other. I recall seeing an academic=20 article a few years ago suggesting that a better policy response was a rule = against excessive remedial combinations. In my nuisance case the damage to = the plaintiffs and the gain to the defendant were unconnected in the sense=20 that there was no equivalence in value nor in identity. Accordingly logic=20 would suggest that if you wreck my farm=92s infrastructure through water=20 diverted onto my land that would normally travel down a floodplain and onto = your farm by your stopbank erected on your boundary to keep water of your=20 own farm and thus concurrently damage me and make greater returns (in a non = stopbank situation) then you should account to me for your profit=20 (restitution for gain based on the wrong of nuisance) as well as paying me=20 to fix the fences and resowing of grass etc. This example I believe shows=20 the fallacy in such election and the sense in the policy being a rule=20 against excessive remedial combinations. Kalev ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, .