3) Restitution and Tort Law

Restitution and tort law are less likely to intersect and overlap than other areas of the law. Restitution is based on the concept of unjust enrichment. A monetary remedy is provided where the defendant has been unjustly enriched at the expense of the plaintiff. A plaintiff who, for example, has paid money in the mistaken belief that it is owed to the defendant may recover that sum. Restitution is not based on the commission of any wrong by the defendant. It focuses on the restoration of a benefit received by the defendant which, in justice, ought to be repaid to the plaintiff. Tort law, contract law, and fiduciary law, on the other hand, emphasize the defendant's commission of a wrong and the defendant's obligation to pay the plaintiff for the loss caused by that wrong. Tort law rarely provides remedies that restore benefits to the plaintiff. Consequently, these two areas of private law tend to operate independently of each other. Nevertheless, plaintiffs sometimes have a choice between an action in tort and one in restitution. This arises under the doctrine of waiver of tort. It operates wherever a person possesses a sum of money as a consequence of the commission of a tort. The plaintiff may elect to waive the tort and sue in restitution to compel payment of that sum. This may arise, for example, in respect of money secured by fraud. The plaintiff may sue in deceit or waive the tort and sue in restitution. The same choice arises where a defendant converts the plaintiff's chattel and later sells it for more than its value on the date of conversion. The plaintiff may waive the less advantageous tort claim (damages in conversion are normally the value of the chattel at the date of conversion) and sue in restitution to recover the full proceeds of the sale. Tort claims and restitution claims are mutually exclusive. A plaintiff may commence an action in both but ultimately, an election must be made between the causes of action.

CHAPTER 8, RELATIONSHIPS

C. Public law

1) The Charter of Rights and Freedoms and Tort Law

The Canadian Charter of Rights and Freedoms has, so far, had relatively little impact on the law of torts. There are three ways in which tort litigation may be affected by the Charter. First, there are some cases where the Charter is directly relevant and applicable. Second, since the Charter is the repository of the fundamental values and principles of Canadian law, it informs and influences the development of tort law. Third, the Charter is the basis for the development of discrete constitutional torts.

a) Direct Application to a Common Law Tort Action

The Charter of Rights and Freedoms is rarely directly applicable to tort litigation. This is because the Charter applies to governmental action [Note 12: Section 32(1) of the Charter declares that it applies "to the Parliament and government of Canada in respect of all matters within the authority of Parliament . . ." and "to the legislature and government of each province in respect of all matters within the authority of the legislature of each province."] and, unless there is a substantial governmental connection in the case, the Charter is inapplicable. [Note 13: R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 [Dolphin Delivery].] Most common law tort litigation between private litigants will not have a sufficient governmental connection to make the Charter directly applicable. There may, exceptionally, be a sufficient governmental connection if a legislative enactment is an integral part of the common law cause of action or if there is a statutory defence to that cause of action. One of the parties may argue that the pertinent legislation is in breach of the Charter and is unconstitutional. Such a finding would directly affect the common law tort litigation. This argument has been made unsuccessfully, for example, in defamation actions when the provisions of the provincial defamation legislation were at issue. [Note 14: Coates v. The Citizen (1988), 85 N.S.R. (2d) 146 (S.C.T.D.).]

There may also be a sufficient governmental connection if one of the parties to a common law tort action (not based on a breach of Charter rights) is an official or an organ of government. There does not, however, appear to be a great deal of enthusiasm for this possibility because it risks the development of inconsistent tort principles applic- able to governmental and non-governmental litigants. [Note 15: L.N. Klar, Tort Law, 2d ed. (Scarborough, Ont.: Carswell, 1996) at 7-8.]

b) Indirect Application

The indirect application of the Charter to Canadian tort law has been recognized expressly by the Supreme Court. The Court has observed that the application, interpretation, and development of the common law must be informed by, and be consistent with, the fundamental constitutional values enshrined in the Charter. [Note 16: Dolphin Delivery, above note 13 at 603, McIntyre J.] To this extent, the Charter is relevant to tort law. There is no reason to object to the use of the Charter to ensure the fidelity of tort law to Charter values. It is a noble sentiment but as yet there is little evidence that the Charter is playing a significant role in reshaping or formulating tort doctrine. One point of conflict between Charter values and the common law is the right of free speech and the tort of defamation. Nevertheless, the conventional common law principles have been upheld and the tort of defamation has emerged unscathed by the implementation of the Charter. [Note 17: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.] There is also some indication that the burden on those who seek to persuade a court that the common law is inconsistent with Charter values is a heavy one and that the courts will proceed cautiously and incrementally in making adjustments to the common law of torts. [Note 18: Ibid. at 1171-72. ] None of this suggests a robust and vigorous utilization of the Charter in the shaping of tort law.

c) Constitutional Torts

A more fertile avenue of development for civil liability arising out of the Charter may lie in the development of constitutional torts. Constitutional torts may arise when a government official or entity of government breaches a person's Charter rights. The basis for such a claim is found in section 24(1) of the Charter, which empowers a court to award a remedy that is "appropriate and just in the circumstances" to anyone whose Charter rights or freedoms have been violated. The broad discretion contained in this provision has been used, in a number of cases, to fashion a remedy in damages for the violation of the Charter rights. The recent decision in Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, [Note 19: (1998), 39 O.R. (3d) 487 (Gen. Div.).] is illustrative. The plaintiff was sexually assaulted by a serial rapist who targeted single, white women who lived in a confined neighbourhood of Toronto. The offender gained access to their apartment through balcony doors. The police did not warn the women at risk in the area when they were aware that a serial criminal was operating in this manner. The plaintiff was, therefore, unable to take steps to protect herself. The Court imposed liability under section 24(1) of the Charter for violation of the plaintiff's Charter rights. Her section 15(1) right to equal protection under the law was violated because the defendant withheld a warning from the women at risk on the ground of a stereotypical and discriminatory belief that they would become hysterical, panic, and scare off the attacker and thereby delay his apprehension. Her section 7 right to security of the person was breached by the defendant's use of women in the area, including the plaintiff, as "bait" to trap the offender rather than putting their security interests first. The Court did not, however canvass all the elements of a constitutional tort.

The many issues that need to be authoritatively resolved include the requirement of a mental element on the part of the government official, such as an intention, malice, or negligence, the interests of the plaintiff to be protected, the need for proof of damage, the purpose of the remedy (compensation or deterrence), the assessment of damages and remoteness rules, the range of remedies and the interplay of the personal and vicarious liability of the Crown, and the personal responsibility of governmental officials. [Note 20: See A.M. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at 312-16 for a consideration of some of these issues with reference to the academic commentary and the sparse case law.]

The resolution of these issues and the full development of constitutional tort liability is likely to be a slow process. As yet, there are not a large number of cases. This may indicate that conventional tort principles are sufficient to remedy governmental breaches of Charter rights. In Jane Doe, for example, liability was also established independently under the tort of negligence. Moreover, it was held in Jane Doe that the establishment of a constitutional tort in addition to liability under a common law tort does not entitle the plaintiff to any extra damages. This removes any incentive to allege a constitutional tort additionally if a remedy can be found in conventional tort principles. It may, however, be advantageous to frame an action as a constitutional tort when provincial legislation creates an immunity or a limitation period that would defeat the plaintiff's common law tort action. The Ontario Court of Appeal held in Prete v. Ontario [Note 21: (1993), 16 O.R. (3d) 161 (C.A.).] that legislation of that kind could not defeat an action in malicious prosecution based on breach of section 7 of the Charter.

CHAPTER 8, RELATIONSHIPS

FURTHER READINGS

Burrows, A.S., "Contract, Tort and Restitution - A Satisfactory Division or Not?" (1983) 99 L.Q. Rev. 217

Farquhar, K., "Hodgkinson v. Simms: The Latest on the Fiduciary Principle" (1994) 29 U.B.C. L. Rev. 383

Hadden, T., "Contract, Tort and Crime: The Forms of Legal Thought" (1971) 87 L.Q. Rev. 240

Ross, J., "The Common Law of Defamation Fails to Enter the Age of the Charter" (1996) 35 Alta. L. Rev. 117

Tettenborn, A.M., An Introduction to the Law of Obligations (London:

Butterworths, 1984)

CHAPTER 9

CONCLUSION THE CANADIAN LAW OF TORTS IN THE TWENTY-FIRST CENTURY

			A. The Centrality of the Tort of Negligence
			B. The Dynamism of the Tort of Negligence
			C. Generalization and Integration
			D. Reform and Modernization
			E. The Triumph of Compensation and Loss Distribution Policies
			F. The Marginalization of Tort Law
			Further Readings

CHAPTER 9, CONCLUSION: THE CANADIAN LAW OF TORTS IN THE TWENTY-FIRST CENTURY

In 1900 no judge or lawyer could have foreseen the substantial expansion and evolution of the Canadian law of torts that would take place in the following hundred years. We are not in any better position today to predict what the next hundred years will bring. Nevertheless, there are certain trends and themes in Canadian tort law that are likely to be influential in its development and evolution in the twenty-first century. These themes include the centrality and dominance of the tort of negligence, the dynamism and expansionary nature of the tort of negligence, the incremental drift towards a greater generalization and integration of tort rules, the reform and modernization of tort law, the dominance of the compensatory function of tort law, and the rise of alternative and supplementary legal and non-legal compensatory and deterrent mechanisms that threaten to marginalize and diminish the importance of tort law. Not all of these themes are discrete phenomena and not all of them point in the same direction, but they each warrant some attention in anticipating the future path of Canadian tort law.