Date: Wed, 3 May 2006 15:20:16 -0600

From: Russell Brown

Subject: A Change of Topic

Moin Yahya and I co-authored a comment on Serhan which appears in (2005) 43 Alta L. Rev. 469-76. To make a short comment even shorter, we felt that Cullity J's reliance upon unjust enrichment (in the mistaken belief that he could do so under "waiver of tort", even where there was no damage) was remarkable (and wrong), even on the lower "cause of action" threshold for certification of a class action. This was because, first, waiver of tort is not (as Cullity J. seemed to think it was) a cause of action in its own right, but rather it presupposes that a tort has been committed. Second, none of the putative plaintiffs in Serhan actually paid for the defective meters, so any enrichment of the defendant did not correspond to a deprivation of the plaintiffs. (That fact alone, I believe, demonstrates that Cullity J. was wrong). Third, in defective products cases, we cannot know whether the plaintiff has suffered a legally significant loss until we know how much the plaintiff paid and the value of the product. (The price paid might have reflected its value). Fourth, we argued that the law of unjust enrichment doesn't operate to restore a lost bargain by awarding costs of repair (as opposed to the costs of removing the danger).

Mayo Moran's article on Winnipeg Condo, at (1997) 47 UTLJ 115 also considers a role for the law of unjust enrichment in these defective products cases.

Happy marking to all,
Russ Brown

Russell Brown
Assistant Professor
Faculty of Law
University of Alberta
435 Law Centre
Edmonton, Canada
T6G 2H5

tel. 1-(780) 492-1962
fax 1-(780) 492-4924

>>> "lionel.smith" 5/3/2006 2:55 PM >>>

To John's note, I would add that I consider Cullity J’s judgment in Serhan to be a fine addition to the law of blood sugar meters ...

In addition to Serhan, which was digested by Robert Chambers in [2005] RLR §95, Cullity J’s more recent decision in Lewis v. Cantertrot Investments Ltd. (20 March, [2006] O.J. No. 1061), another class action, is also based on the distinction between unjust enrichment properly so called and disgorgement for wrongs.

Keeping one foot in the other camp, of misfeasance versus nonfeasance, while I hesitate to rush in here on my own account, I note that the contribution of J. Kortman, Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio (Oxford: OUP, 2005) is largely concerned with whether it makes sense to distinguish nonfeasance and misfeasance.

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