Introduction

• Author: Philip H. Osborne
• Profession: Faculty of Law. The University of Manitoba
• Pages: 1-24

1

CHAPTER 1

INTRODUCTION

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

of personal, social, bus iness, and governmental activities. The harm m ay

be to their person, dignity, property, or wealth. Tort1 law determines

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

considered 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 The word is not used colloqu ially. It comes from the French word meaning

“wrong,” and its use is r estricted to the legal sy stem.

THE LAW OF TORTS2

A. AN EXEMPLARY TORTS CASE

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

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

make any special contr ibution to the development of the law of torts. It

is, however, a good example of the kind of cases that Ca nadian lawyers

routinely deal with and it provides a useful starting point for under-

standing 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 war ned her brother that he had better

watch what he was doing because his wife would be arriving 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 po-

lice station to lodge a complaint. The bouncers may well have commit-

ted the crime of ass ault causing bodily harm. A crim inal prosecution is,

however, independent of any tort litigation,4 and the characteristics of

the crimin al process are distinct from those of the tort process i n three

important ways.

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

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

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

citizens from similar antisocial conduct. Consequently, the criminal

process focuses pri marily on the offender, his conduct, and, if he is found

guilty, an appropriate punishment. Tort law provides a signif‌icant con-

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

3 See, for example, G.H.L . Fridman, The Law of Torts in Canad a, 3d ed. (Toronto: Car-

swell, 2010); L.N. Klar, Tor t La w, 5th ed. (Toronto: Carswell, 2012); and A.M. Linden

& B. Feldthusen, Cana dian Tort Law, 9th ed. (Toronto: LexisNex is, 2011) [Linden].

4 Probably the most f amous illustration of the i ndependence of the crimin al process

from the tort proce ss arose from the death s of Nicole Brown Simpson and Ronald

Goldman. O.J. Simpson wa s acquitted of all crimi nal charges relati ng to their

deaths but was foun d liable in tort and ordered to pay sub stantial damage s.

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