Introduction

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

1

CHAP TER 1

INTRODUCTION

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

of personal, social, business, and governmental act ivities. The harm

may be to their person, dignity, property, or wealth. Tort1 law deter-

mines when the person who causes the har m must pay compensation

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

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

ture of the harm s uffered by the victim, and the circum stances in which

the harm was in f‌licted.

This chapter addresses si x matters. First, a ty pical torts case is

considered to illustrate some of the char acteristics of tort law a nd 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 g iven to personal injury and fatality claims

and how the remedies provided by the law of tort s 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 colloq uially. It comes from the French word meani ng

“wrong,” and its use is r estricted to the legal syst em.

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 treati ses 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 Canadian lawyers

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

standing the tort s system.

The Evaniuk litigation arose f rom an incident in a Winnipeg bar. Ms.

Evaniuk was sitting in the ba r with her girlfr iend. 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 th at 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 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 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 assault causing bodily har m. A crimin al prosecution

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

of the criminal process are dist inct from those of the tort process in

three important ways.

First, the main f unction of the criminal law is to puni sh those who

have committed offences u nder the Criminal Cod e.5 The punishment

is designed to prevent a repeat offence by the defendant and to de-

ter other citizens from simi lar antisocial conduct. Consequently, the

crimina l process focuses pri marily on the offender, his conduct, and,

if he is found guilty, an appropriate punishment. Tort law provides a

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

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

Ont: Carswell, 2002); L.N. Klar, Tort L aw, 3d ed. (Toronto: Carswe ll, 2003); and A.M.

Linden & B. Feldthusen , Canadian Tort Law, 8th ed. (Toronto: Butterworth s, 2006).

4 Probably the most fa mous illustration of the indep endence of the crimina l pro-Probably the most fa mous illustration of the indep endence of the crimina l pro-

cess from the tor t process arose from the de aths of Nicole Brown Simpson and

Ronald Goldma n. O.J. Simpson was acquitt ed of all criminal ch arges relating to

their death s but was found liable in tort and ordered to p ay substantial dam ages.

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