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ARTICLE · 30 JULY 2020

The End Of Waiver Of Tort

Aird & Berlis LLP
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A commonly pleaded cause of action in many class actions is "waiver of tort". Not anymore. The longstanding debate as to whether waiver of tort is an alternative form of remedy or an independent...

CanadaLitigation, Mediation & Arbitration
Steve J. Tenai
Steve J. Tenai
Karlie Nordstrom
Karlie Nordstrom
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A commonly pleaded cause of action in many class actions is "waiver of tort". Not anymore. The longstanding debate as to whether waiver of tort is an alternative form of remedy or an independent cause of action has been settled by the Supreme Court of Canada in Atlantic Lottery Corp. Inc. v. Babstock, released on July 24, 2020.1 As the decision has now made clear, waiver of tort is not an independent cause of action.

History of the Debate

The debate surrounding waiver of tort was initially sparked by a 2006 decision, Serhan Estate v. Johnson & Johnson.2  Since then, claims under waiver of tort have been commonly advanced in the context of class actions, though they have never been fully tried. The result has been an "undesirable state of uncertainty" where conflicting lines of jurisprudence pushed certification judges to "affirm that the question of the doctrine's availability [was] indeed a live issue for trial." Consequently, certification was often granted

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