Waiver of Tort: A Potential Sea Change in Class Action Law

There is much confusion surrounding the “waiver of tort” doctrine, and whether it should be understood as a separate cause of action. I argue that waiver of tort should be recognized as a cause of action, but only in the class action context. While class actions are thought of as purely procedural amalgamations of conventional actions, here is possibly the first substantive advance in the law of class actions. As there are three senses of term “waiver of tort”: as a claim for restitutionary damages for wrongful conduct, as extinctive ratification of an ex post facto agent’s unauthorized conduct, and as an unjust enrichment claim brought in lieu of a tort claim, I will set out which sense of the term I am using and what the class action context adds to the debate. I contend that the policy considerations underlying the Class Proceedings Act are currently being used to effect remedies very much like the remedies a waiver of tort cause of action would provide for. After setting out the arguments for recognizing waiver of tort in the class action context, and responding to some of the practical and theoretical problems that recognition of this inchoate doctrine raises, I conclude that the class action context provides a special case where forcing the tortfeasor to disgorge the gains from his wrongful conduct, regardless of whether the plaintiffs can prove injury, is entirely appropriate.