Date: Sun, 7 May 2006 10:15:36 -0400

From: John McCamus

Subject: A Change of Topic

For the benefit of a former and cherished teacher of mine (Swan that is), I feel compelled to point out that it would be sporting for Russ to concede that not everyone shares the Birksian line which he has advanced concerning the nature of waiver of tort. Thus, for example, Beatson speaks for many (including myself) when he writes: "...the restitutionary claim given by way of 'waiver of tort' is not parasitic and does not depend on the existence of a tort" see p.242 of "The Use and Abuse ...". Dan Friedmann is another who has written in the same vein in his articles on the subject (e.g. in the Jones symposium).

With respect to those who hold differing views, it seems obvious to me, for the reasons advanced by Jack and Dan and others, that waiver of tort, like breach of fiduciary obligation, is a cause of action, and is not helpfully viewed as merely parasitic on the existence of another cause of action in tort or, in the case of fiduciary obligation, in "equity". Back (unhappily) to marking!

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.

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