In O'Brien v. Bard Canada Inc., 2015
ONSC 2470 ("Bard"), Justice Perell refused
to certify the plaintiffs' claim for waiver of tort.
Perell J.'s rationale was not based on the now familiar
tension over whether waiver of tort is a cause of action or a
remedy, but drew on the increasingly prominent preferable procedure
and proportionality concepts.
Bard is a products liability class action regarding a
number of pelvic mesh products. For the purpose of his analysis,
Perell J. assumed that waiver of tort was a discrete cause of
action. Even with that assumption. Perell J. stated that it
was 'inconceivable' that the tort claims pleaded would ever
be waived in lieu of a claim in restitution for disgorgement.
No mention of what the disgorgement amounts might be is noted
in the decision, but Perell J. presumably thought that they would
be significantly less. He stated:
