Introduction

• Author: Philip H. Osborne
• Pages: 1-23

Every day in Canada some of its citizens suffer harm as a consequence

of personal, social, business, and governmental activities. The harm

may be to their person, dignity, property, or wealth. Tort1law deter-

mines when the person who causes the harm must pay compensation

to the person who suffers it. The answer to that question depends upon

the nature of the conduct of the person who caused the harm, the

nature of the harm suffered by the victim, and the circumstances in

which the harm was inflicted.

This chapter addresses six matters. First, a typical torts case is con-

sidered to illustrate some of the characteristics of tort law and the

nature of the civil litigation process. Second, reference is made to the

origins of tort law. Third, consideration is given to the foundation ele-

ments of tort law. Fourth, reference is made to the objectives of tort law.

Fifth, special attention is given to personal injury and fatality claims

and how the remedies provided by the law of torts relate to other com-

pensatory systems. Finally, consideration is given to the organization of

tort law for the purposes of this book.

1

Introduction

chapter 1

1 The word is not used colloquially. It comes from the French word meaning

“wrong,” and its use is restricted to the legal system.

A. An Exemplary Torts Case

Evaniuk v. 79846 Manitoba Inc.2is not a well-known torts case. It is not

referred to in any of the treatises on Canadian tort law.3It does not

make any special contribution to the development of the law of torts.

It is, however, a good example of the kind of cases that Canadian

lawyers deal with routinely and it provides a useful starting point for

understanding the torts system.

The Evaniuk litigation arose from an incident in a Winnipeg bar.

Ms. Evaniuk was sitting in the bar with her girlfriend. She noticed that

her brother, who was sitting at an adjacent table, was kissing Ms.

Fuerst, a waitress at the bar. Ms. Evaniuk warned her brother that he

had better watch what he was doing because his wife would be arriv-

ing in a few minutes. Ms. Fuerst responded by throwing a full glass of

liquid over Ms. Evaniuk. A heated exchange took place between the

two women until two bouncers, employed by the bar, intervened. They

took hold of Ms. Evaniuk, forcibly removed her from the premises, and

threw her into the parking lot. She fell heavily and was injured.

1) Criminal Law and Tort Law Contrasted

Ms. Evaniuk’s first response to this incident was to go to the local

police station to lodge a complaint. The bouncers may well have com-

mitted the crime of assault causing bodily harm. A criminal prosecu-

tion is, however, independent of any tort litigation,4and the

characteristics of the criminal process are distinct from those of the tort

process in three important ways.

First, the main function of the criminal law is to punish those who

have committed offences under the Criminal Code.5The punishment is

designed to prevent a repeat offence by the defendant and to deter

other citizens from similar antisocial conduct. Consequently, the crim-

2The Law of Torts

2 (1990), 68 Man. R. (2d) 306 (Q.B.) [Evaniuk].

3 See, for example, G.H.L. Fridman, The Law of Torts in Canada, 2d ed. (Agin-

court, Ont: Carswell, 2002); L.N. Klar, Tort Law, 3d ed. (Toronto: Carswell,

2003); and A.M. Linden, Canadian Tort Law, 7th ed. (Toronto: Butterworths,

2001).

4 Probably the most famous illustration of the independence of the criminal

process from the tort process arose from the deaths of Nicole Brown Simpson

and Ronald Goldman. O.J. Simpson was acquitted of all criminal charges relat-

ing to their deaths but was found liable in tort and ordered to pay substantial

damages.

5 R.S.C. 1985, c. C-46.