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Sender:
Lionel Smith
Date:
Mon, 26 Feb 2007 21:32:03 -0500
Re:
Waiver of tort

 

I’m confused; did anyone say there can’t be a gain-based claim in tort (as opposed to arguments about whether specific torts (especially negligence) will support it)?

  

Lionel

  

Lionel,

On tort & gain-based awards:

Look at, if you haven't seen it, 3com Corporation v. Zorin International Corporation, 2006 CanLII 18351 (ON C.A.) particularly at para. 57.

It looks like the Ont CA wouldn't agree that there can't be a gain-based claim in tort, at least where we're dealing with intentional torts, although the statement in the case isn't restricted to intentional torts. "The appellants’ submission ignores the conceptual basis of tort law, which is restitutionary. The difference between the contract price and the price at which the appellants would otherwise have had to purchase the goods is a cost properly borne by the appellants."

This was a deceit claim were the recovery where the recovery was the gain the plaintiff would not have made but for the tort, not the plaintiff's loss. On the evidence, there was no loss on this issue. 3Com sold the goods for $X based on the deceit. The price would have been higher, otherwise. As I understand the evidence, there was no evidence that the goods could have been sold for the higher price to anybody, so 3Com didn't sustain any loss on the sale of these goods based on the evidence. It just didn't make as much because on the sale. I suspect that was also the reality.

There's nothing in the case to indicate waiver of tort was raised. I don't have it at my fingertips but there's a passage in Maddaugh and McCamus specifically suggesting that waiver of tort might apply in a deceit-based claim. The description in M&M is literally the facts of 3Com.


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