ABSTRACT
The evolution of rules governing gain-based remedies has been slow and fitful. That fact is primarily a function of two problems. The first is ambiguous terminology and resulting conceptual uncertainty. The second is an unwillingness to look beyond historical – often flawed – sources. The Supreme Court of Canada addressed those problems in Atlantic Lottery Corp Inc v Babstock (2020). Brown J (1) distinguished between restitution for unjust enrichments and disgorgement of wrongful gains, (2) abolished the language of ‘waiver of tort’, and rejected the radical proposal that ‘waiver’ can transform a loss-based tort (eg, negligence) into a gain-based tort, and (3) held that disgorgement is available for breach of contract only if the plaintiffs contractual interests inherently defy monetary expression. Brown J’s judgment is a landmark in Canadian private law.
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Mitchell McInnes, Waiver of Tort, Contract, Disgorgement, and Unjust Enrichment: Clarity in the Supreme Court of Canada, 66 Canadian Business Law Journal 157 (2022).
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