Introduction

• Author: Philip H. Osborne
• Pages: 1-24

1

CHA PTER 1

INTRODUCTION

Every day in Canad a, some citizens suffer har m as a consequence of

personal, social, business, and governmental activ ities. The harm may

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 t he victim, and the circumstances i n 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 Inc2 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 Evaniuk litigation aros e from an incident in a Winnipeg bar. Ms

Evaniuk was sitting in t he bar 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 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 police

station to lodge a complaint. The bouncers may well have committed

the crime of assault causing bodily harm. A criminal 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 pu nishment

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

other citizens from sim ilar anti-social conduct. Consequently, the

crimina l process focuses primarily on the offender, his conduct, and,

2 (1990), 68 Man R (2d) 306 (QB).

3 See, for example, GHL Fr idman, The Law of Torts in Canada, 3d ed (Toronto:

Carswell, 2010); LN Klar & CSG Jef feries, Tor t La w, 6th ed (Toronto: Thomson

Reuters, 2017); and AM Linden et al, Canad ian Tort Law, 11th ed (Toronto: Lexis-

Nexis, 2018) [Linden et al].

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

cess from the tor t process arose from the deat hs of Nicole Brown Simpson and

Ronald Goldma n. OJ Simpson was acquitted of all cr iminal charges r elating to

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

5 RSC 1985, c C-46.