Who knows... The traditional view is that it is merely an election of remedies, a decision to forego tort damages in favour of disgorgement of gain, but recent Canadian case law has entertained the possibility (to the delight of class-action plaintiffs’ lawyers) that it may be an independent cause of action. If that were the case, and no underlying tort claim needed to be established, a plaintiff wouldn’t have to show that he or she suffered damages but merely that the defendant profited from wrongdoing. Obviously attractive in the context of class proceedings, where causation isn’t always easy to prove.
In Andersen v St Jude Medical Inc, 2012 ONSC 366 – that rare thing, a class action taken to trial on the merits – Lax J said she ‘could not agree more that it is time to decide the question’ about the status of waiver of tort, but because she found that the defendants had done nothing wrong she effectively dodged the issue. Justice Lax reviews the policy considerations on both sides and provides a recap of the inconclusive earlier case law. Those cases have said that the viability of waiver of tort as an independent claim is something best left to trial on the merits – which almost never happens in class proceedings, so it will be a while before we get any closer to an answer.
[Link available here].