C. The Elements of Canadian Tort Law

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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As noted earlier, tort law is made up of a number of discrete, nominate (named) torts that provide remedies for some of the losses generated by a myriad of societal activities. These torts dictate when the loss will be allocated by an award of damages to the defendant and when it will be left where it has fallen - on the shoulders of the plaintiff. There is, nevertheless, a certain similarity to the structure of all torts. Most torts are formulated on the basis of the nature of the defendant’s conduct and the nature of the plaintiff’s loss that has been caused by that conduct.22

Tort law is about both conduct and consequences. The tort of battery, the basis of liability in the Evaniuk case, is illustrative. It requires intentional conduct that causes bodily interference. In combination, they are actionable. Tort law is, in large part, constructed on various combinations of these two elements and the causal link between them. These ideas of conduct and loss are the building blocks of the law of torts and, as such, they deserve some further preliminary attention.

1) The Nature of the Defendant’s Conduct

The Canadian law of torts reflects an intuitive sense of fairness that a defendant should be held liable only for loss caused by a wrongful act, not for loss caused by an accident, an error of judgment, or bad luck. Tort law, therefore, classifies the conduct of defendants in a way that permits a line to be drawn between wrongful and innocent conduct. In general, three concepts perform this task: intention, negligence, and accident.23Each term describes the defendant’s conduct with reference to its consequences.

Conduct is intentional when the defendant desires its consequences.24The professional hit man who assassinates a politician, the arsonist who sets fire to a building, the political candidate who falsely calls his rival a racist, and the person who discloses intimate and em-

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barrassing information about a former friend intentionally cause damage to person, property, reputation, and privacy, respectively.

Conduct is negligent when the defendant creates a reasonably foreseeable and substantial risk of its consequences. The homeowner who fails to clear ice from the steps to his house, causing a visitor to fall and injure herself; the operator of a public swimming pool who fails to post a warning of the shallow depth of the pool and contributes to the injury of a swimmer who dives in; and the driver of a car who drives in excess of the speed limit and hits another vehicle negligently cause damage to either person and property.

Conduct is accidental when the defendant neither desires its consequences nor creates a foreseeable and substantial risk of its consequences.25The hunter who discharges a firearm in an unpopulated area and wounds a person whom she has no reason to believe was in the vicinity; the person who leaves a dog locked in an automobile, which leads to a passing pedestrian losing the sight of her eye from a glass splinter when the dog breaks a window in the vehicle;26and the owner of a car driving within the speed limit who hits a child when she darts out from between two parked vehicles into his path cause personal...

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