We still don’t know. Like the Ontario Superior Court of Justice in Andersen v St Jude Medical Inc, 2012 ONSC 3660 (see the BLG Monthly Update for August 2012), the BC Court of Appeal has recently declined to say whether it’s an independent cause of action predicated on wrongdoing (without proof of damages) or a ‘parasitic’ remedial election that depends on the existence of an underlying tort: Koubi v Mazda Canada Inc, 2012 BCCA 310. The BC appeal court did, however, usefully narrow the application of waiver of tort to preclude its use where there is an exhaustive or exclusive legislative scheme to remedy a statutory breach.

[Link available here and here].