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Suing in Contract and Tort Concurrently

. Beer v. Townsgate I Ltd.

In Beer v. Townsgate I Ltd. (Ont CA, 1997) the Court of Appeal stated as follows regarding actions commenced in both contract and tort:
The existence of a contractual relationship between the parties does not preclude a claim in tort: see Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, 31 D.L.R. (4th) 481. In BG Checo International Ltd. v. British Columbia Hydro & Power Authority, 1993 CanLII 145 (SCC), [1993] 1 S.C.R. 12, [1993] 2 W.W.R. 321, the Supreme Court of Canada addressed the issue of concurrent liability in tort where a clause in the contract may exclude or limit such liability. In that case, the court held that the contract did not negate or limit the defendant's common law duty not to negligently misrepresent certain facts, nor did it negate or limit the plaintiff's right to sue in tort. As to whether the right to sue in tort was precluded, the court said at p. 27 S.C.R., p. 331 W.W.R.:

The rule is not that one cannot sue concurrently in contract and tort where the contract limits or contradicts the tort duty. It is rather that the tort duty, a general duty imputed by the law in all the relevant circumstances, must yield to the parties' superior right to arrange their rights and duties in a different way. In so far as the tort duty is not contradicted by the contract, it remains intact and may be sued upon.


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