Date: Mon, 8 May 2006 08:15:17 -0600

From: Russell Brown

Subject: A Change of Topic

Dear John,

On the morning after Edmonton lost the opening Conference semi-final game to San Jose (that's in ice hockey, for the non-Canadian crowd), it's hard to feel sporting, but I'll give it a go.

I readily agree that there is contrary opinion to the effect that waiver of tort is a cause of action. I do think, however, that it goes against the weight of authority going back to Lamine v. Dorrell (which is long enough in the tooth to elude any Birksian label) which presupposes a tort in that the victim elects to pursue a claim for disgorgement of the benefits obtained by the tortfeasor - the point being that the tortfeasor should not be allowed to keep for himself any gains made as a consequence of his having committed a wrong. Hence in Jackson v. Penfold, [1931] 1 DLR 808 (where the defendant bailee of crops which he had mortgaged to the plaintiff had then sold a portion of the crop to a third party), Riddell J.A. said:

[T]he bailor, on discovering that its bailee had disposed of its property, had the option of insisting on a tort having been committed and suing in trespass and trover; or it might waive the tort and claim the sale price. Its demand of the price from the Heinz Company showed conclusively that it waived the tort and affirmed the sale.

More recent Ontario authority takes the same view (Zidaric v. Toshiba of Canada Ltd., [2001] 5 CCLT (3d) 61), although to be fair I should acknowledge Cullity J.'s statement in Lewis v. Cantertrot Investments Ltd. (to which Lionel referred earlier) that the law relating to the requirements for waiver of tort is "undeveloped and uncertain."

Now, back to marking property exams.

With best wishes,

Russ

>>> 5/7/2006 8:15 AM >>>

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!

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