Introduction
| Author | Philip H. Osborne |
| Profession | Faculty of Law. The University of Manitoba |
| Pages | 1-24 |
1
CHA PTER 1
INTRODUCTION
Every day in Canad a 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, dign ity, 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 ha rm, the nature of
the harm suffered by the victim, and the circumstances in which the
harm was in flicted.
This chapter addresse s six matters. First, a ty pical torts case is
considered to illustrate some of the char acteristics of tort law and the
nature of the civil lit igation 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 fat ality claims
and how the remedies provided by the law of tort s relate to other com-
pensatory system s. 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 tort s system.
The Eva niuk 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 w ife would be arriving in a few
minutes. Ms. Fuerst responded by throw ing a full glass of liquid over
Ms. Evaniuk. A heated exchange took place between t he 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 t his 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 sim ilar antisocia l 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.
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