Panacea or Pandemic: Comparing 'Equitable Waiver of Tort' to 'Aggregate Liability' in Cases of Mass Torts with Indeterminate Causation

AuthorCraig Jones
PositionProfessor, Faculty of Law, Thompson Rivers University
(2016) 2(1) CJCCL
Panacea or Pandemic: Comparing
“Equitable Waiver of Tort” to
Aggregate Liability” in Cases of
Mass Torts with Indeterminate
Craig Jones*
e equitable doctrine of “waiver of tort”, in which a plainti surrenders the right to
tort damages and seeks instead a disgorgement of the defendant’s wrongful prots, has
received a mixed reception in Canadian courts. In this article, the author explains the
doctrine and its dicult history, and proposes that the problem against which waiver
of tort is usually being applied — indeterminate causation in mass tort claims — is
very real. However, the author concludes that the use of the doctrine of waiver is a
partial solution at best, and advocates instead for a more fundamental rethinking of our
approach to causation in class actions.
* Professor of Law, ompson Rivers University. e author is grateful for
the research assistance of Kendra Morris, J.D. Candidate, ompson
Rivers University.
Jones, Panacea or Pandemic
I. I
II. W  T  C L
A. e Dicult Doctrine
B. e Jurisprudence
III. W  W W  W  T C
A. What is the Problem, Exactly?
B. Wrongs “In the Air”
C. Under-Compensation and Under-Deterrence
D. e Divergence of Interests of Class Counsel
IV. A B W
A. e Problem, Reiterated
B. Assessment of Liability, Harm, and Damages on an Aggregate Basis
V. C
I. Introduction
Is the equitable doctrine of waiver of tort, as they say nowadays, “a
thing”? If so, should it be the “next big thing” in mass tort class actions?
My answers to these questions are a qualied “yes” and an emphatic
“no”. Waiver of tort should be recognized as a cause of action, I will
argue, and may at times be useful, but it should not be the doctrine of
rst, or even second, resort in mass tort class actions, as it is generally
inferior to the available alternative: the evolution of tort law to permit the
aggregate determination of causation in large-scale claims.
What exactly is waiver of tort? After 20 tumultuous years during
which it has been pleaded and occasionally argued before the courts in
Canada, we still do not know much about the rather obscure doctrine. In
its most robust formulation, waiver of tort allows a plainti who is able
to prove all the constituent elements of a traditional wrong except that
they have suered a loss as a consequence of the defendant’s breach to
(2016) 2(1) CJCCL
“waive” tort compensation and claim only “disgorgement”1 of the prots
that the defendant earned as a result of the wrongful behaviour. As the
Supreme Court of Canada noted in its decision in Pro-Sys Consultants
Ltd v Microsoft Corporation2 (“Microsoft”): “[a]n action in waiver of tort
is considered by some to oer the plainti an advantage in that it may
relieve them of the need to prove loss in tort, or in fact at all”.3
e doctrine is based on the intuitively appealing notion, deeply
rooted in equity, that a defendant ought not be able to prot from
wrongdoing. It also bears on deterrence: equitable waiver allows a plainti
who has not suered from harm to perform a corrective role in depriving
a wrongdoer of prots, disincentivizing antisocial behaviour. But where a
class of persons have suered harm as a result of a mass wrongdoing, one
might ask, why would they give up what may well be the overwhelming
bulk of their claim?
One answer is straightforward: a waiver of tort claim “may be the
easiest cause of action to prove”,4 because disgorgement ows from
the wrongdoing of the defendant, rather than the harm caused to the
plainti. Under its theory, it is enough for a plainti to show that the
defendant behaved in a way that was wrong — usually that it breached a
duty somewhat “at large” or generic — but the plainti need not establish
a wrong — that is, there is no requirement that all the elements of a
complete tort be present. So, if a manufacturer produced a dangerously
defective product, or failed to provide a necessary warning to its customers,
or if an issuer of shares deliberately or negligently misrepresented facts in
a prospectus, or if a factory breached pollution standards and exposed its
neighbours to risk, the defendant could lose whether or not the plainti
1. e cases and literature on waiver of tort often use the language of
a number of equitable remedies — “accounting”, “disgorgement” or
“constructive trust”. But no matter how it is cast, the eect is the same:
some amount equivalent to the defendant’s ill-gotten prots will be
calculated and surrendered to the plainti or class.
2. 2013 SCC 57 [Microsoft SCC].
3. Ibid at para 93.
4. Paul Perell, “Field Notes on Products Liability Claims in Class Actions”
(2011) 38:2 Advocates’ Quarterly 149 at 163 (describing possible
advantages in the context of products liability claims).

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