Private Law Theory

INTRODUCTION
After decades of uncertainty in the area of class actions and tort law, waiver of tort is dead. In its decision in Atlantic Lottery Corp v Babstock, released on July 24, 2020, the Supreme Court of Canada (‘SCC’) killed off the concept once and for all, holding that, ‘[t]his novel cause of action does not exist in Canadian law and has no reasonable chance of succeeding at trial. In addition, the term “waiver of tort” is apt to generate confusion and should be abandoned’. While the plaintiffs’ claims in this case also included breach of contract and unjust enrichment, the focus of the SCC’s decision was waiver of tort (on which the Court was unanimous), and that will therefore be the focus of this article …

Chiodo, Suzanne E, Not Waiving, But Drowning: Supreme Court of Canada Kills Waiver of Tort as an Independent Cause of Action (2022) Articles and Book Chapters 3112.