Waiver of Tort, Contract, Disgorgement, and Unjust Enrichment: Clarity in the Supreme Court of Canada
![handle is hein.journals/canadbus66 and id is 169 raw text is: THE REVUE
CANADIAN CANADIENNE DU
BUSINESS LAW DROIT DE
JOURNAL COMMERCE
Volume 66, No. 2 September/Septembre 2022
WAIVER OF TORT, CONTRACT, DISGORGEMENT,
AND UNJUST ENRICHMENT: CLARITY IN THE
SUPREME COURT OF CANADA
Mitchell McInnes*
The evolution of rules governing gain-based remedies has been slow
and fitful. That fact is primarily a function of two problems. The first
is ambiguous terminology and resulting conceptual uncertainty. The
second is an unwillingness to look beyond historical - often flawed-
sources. The Supreme Court of Canada addressed those problems in
Atlantic Lottery Corp Inc. v. Babstock (2020). Brown J. (1)
distinguished between restitution for unjust enrichments and
disgorgement of wrongful gains, (2) abolished the language of
waiver of tort, and rejected the radical proposal that waiver can
transform a loss-based tort (e.g., negligence) into a gain-based tort,
and (3) held that disgorgement is available for breach of contract
only if the plaintiff's contractual interests inherently defy monetary
expression. Brown J.'s judgment is a landmark in Canadian private
law.
As Lord Wright once explained, any civilized system of law is
bound to provide remedies for cases of what has been called unjust
enrichment. Just as any community requires rules for wrongful
behaviour (torts) and enforceable agreements (contract), so too it
needs rules for dealing with unwarranted transfers and ill-got gains
(unjust enrichment, as Canadian courts traditionally defined
that term). That is not to say, however, that every civilized legal
system must have the same sets of rules. Each system is free to
work out the details for itself. The details, moreover, may evolve.
Research and experience may reveal that existing approaches are
ineffective, inefficient, or incoherent. It may not be a matter of the
* Professor, Faculty of Law, University of Alberta
1. Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd., [1943] A.C. 32
(U.K. H.L.) at 61.
157](ViewImageLocal?handle=hein.journals/canadbus66&div=13&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Already a HeinOnline Subscriber?
profiles profiles most
Waiver of Tort, Contract, Disgorgement, and Unjust Enrichment: Clarity in the Supreme Court of Canada
Already a HeinOnline Subscriber?
profiles profiles most