Introduction

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

1

CHAPTER 1

INTRODUCTION

Every day in Canad a some of its citizens suf fer harm as a consequence

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

may be to t heir person, dignity, property, or wealth. Tort1 law 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 h arm, the na-

ture of the harm suffered by the victim, and the circumstances in which

the harm was i nf‌licted.

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

considered to illustrate some of the ch aracteristics of tort law and the

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

origins of tort law. Third, consideration is g iven 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 f atality 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 meanin g

“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 c ase. It is not

referred to in any of the treatise s on Canadian tort law.3 It 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

routinely dea l w ith and it provides a useful starting point for under-

standing the tort s system.

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

Evaniuk was sitting in t he bar with her girlfriend. She noticed that her

brother, who was sitting at an adjacent table, was k issing Ms. Fuerst, a

waitress at the ba r. Ms. Evaniuk warned her brother that he had better

watch what he was doing because his wi fe would be arrivi ng in a few

minutes. Ms. Fuerst responded by throwing a full gl ass of liquid over

Ms. Evan iuk. A heated exchange took place between the two women

until t wo 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 i ncident 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 harm. A criminal prosecution is,

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

the crimina l process are distinct from those of the tort process in three

important ways.

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

have committed offences under the Criminal Code.5 The punishment i s

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

citizens from sim ilar antisocial conduct. Consequently, the criminal

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

found guilty, an appropriate puni shment. Tort law prov ides a signif‌i-

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

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

swell, 2010); L.N. Klar, Tort Law, 4th ed. (Toronto: Carswell, 2008); and A.M. Linden

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

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 relating 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.