AuthorPhilip H. Osborne
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.
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,
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.

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