Panacea or Pandemic: Comparing “Equitable Waiver of Tort” to “Aggregate Liability” in Cases of Mass Torts with Indeterminate Causation

摘要

The equitable doctrine of “waiver of tort”, in which a plaintiff surrenders the right to tort damages and seeks instead a disgorgement of the defendant’s wrongful profits, has received a mixed reception in Canadian courts. In this article, the author explains the doctrine and its difficult history, and proposes that the problem against which waiver of tort is usually being applied — indeterminate causation in mass tort claims — is very real. However, the author concludes that the use of the doctrine of waiver is a partial solution at best, and advocates instead for a more fundamental rethinking of our approach to causation in class actions