Not for the foreseeable future, now that the Supreme Court of Canada has denied leave to appeal the BC Court of Appeal’s decision in Koubi v Mazda Canada Inc, 2012 BCCA 310.
Canadian courts have not managed to decide whether waiver of tort is 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. The result is that waiver of tort is routinely treated as a claim that is not doomed to failure, but is never decided on the merits because it almost always arises in class proceedings – where not having to prove damages would be an obvious advantage for plaintiffs, but which almost always settle before trial. At least the BC appeal court did usefully narrow the application of waiver of tort in Koubi to preclude its use where there is an exhaustive or exclusive legislative scheme to remedy a statutory breach.
Bruce Dixon and and Michelle Maniago in BLG’s Vancouver office, and Nadia Effendi in the Ottawa office, acted for Mazda Canada.