Torts in Canada

What is a Tort?

The word tort comes from the Latin tortum, meaning “wrong, injustice.” The purpose of tort law is not to punish wrongdoers; it is to provide damages to victims as compensation for their losses. It affects nearly every walk of life, from manufacturers and property owners to pet owners, drivers, doctors and bartenders, all of whom have a duty of care.

Although most tort law is judge-made, some originates in statutes that vary from province to province. Unlike criminal law, which involves the state, tort law is used by individuals to claim compensation. It also differs from contract law, where parties have agreed to certain terms or conditions.

Intentional Torts

Intentional torts are the most serious. They are deliberate acts intended to injure others; or to interfere with another person’s rights. A common one is battery. This can involve violence with the intent to injure. It also includes acts that are not intended to injure, but still interfere with a person’s autonomy and the right to security and dignity. For example, every medical treatment performed without the consent of the patient is considered battery, regardless of the doctor’s intent to provide the best care possible. The law respects the absolute right of all competent persons to decide what medical treatment they will accept or refuse.

Other intentional torts include assault and false imprisonment. (See Wrongful Convictions.) A person can also sue for acts intended to cause emotional distress. Sexual or workplace harassment can fall under this tort; in these cases, a court may award extra or punitive damages to punish the wrongdoer.

When a person is injured by a criminal act, the offender may be prosecuted under the Criminal Code; as well as sued through civil court for damages. Tort law is increasingly used by victims of sexual assaults, as some may find it helpful to seek damages whether or not there is a criminal prosecution. Often, criminals do not have the funds to pay tort judgments. Most provinces and territories make the recovery of damages available through victim compensation funds.

People who commit an intentional tort may plead that they had a valid defence, such as the victim’s consent; self-defence; defence of property; necessity; or lawful authority. For example, the defence of consent can protect athletes from being sued for physical contact, as long as the contact is an ordinary part of the game. As well, numerous statutes such as the Criminal Code allow the police to detain and imprison people; or to seize their property. If any of these defences are accepted by the court, the action under tort law will be dismissed.

Torts can involve damage to property as well as injuries to people. Trespassing falls under intentional torts; as does conversion, which is interfering with another person’s goods, and detinue, which is refusing to return something belonging to another person.

Another important tort action is defamation. This protects a person's reputation from false and defamatory material — either spoken, published or broadcast.

Torts of Negligence

People are more frequently injured because of the carelessness rather than the deliberate acts of others. This is the tort of negligence. It is the most important of the modern torts. The famous English case of Donoghue v. Stevenson, in which a manufacturer of a soft drink carelessly allowed a snail to crawl into a bottle (it decomposed and caused the plaintiff to become ill), established the principle that everyone is under a legal obligation to take reasonable care to ensure that others will not be injured because of careless conduct, save for a few exceptional situations.

Everyone must live up to the standards of the “reasonable person.” This is an important concept of the negligence tort. Based on objective guidelines and built on precedents, the standard allows the court to adapt to the changing circumstances of what might be considered “reasonable.” Similarly, if people through their own negligence cause or contribute to their own injuries, they will be held at least partly responsible for their damages under the contributory negligence defence.

Negligence expanded significantly in the 20th century. It now covers a wide range of accidents. Bar owners, for example, can be held liable if they fail to ensure that their intoxicated customers take reasonable care when going home. Drivers can be held responsible if they do not ensure that the occupants of their cars are wearing seat belts; or if they allow incompetent persons to drive their cars. Courts are reluctant, however, to hold public authorities liable for their negligent decisions, as opposed to their negligent acts. It is felt that decisions which raise core policy issues involving the exercise of political discretion be left to elected officials, and not be second-guessed by the courts.

Compensation

If found liable, wrongdoers must compensate victims in full for losses. Compensation will not only include medical bills not covered by health insurance, lost past and future income and the costs of future care; it will also include awards for pain and suffering and the loss of the enjoyment of life. If a tort causes death, the estate and dependants are entitled to seek compensation from the tortfeasor (the person guilty of tort) for their financial losses. Dependants are entitled to be compensated for the loss of support that they would have obtained from the person who was killed. Some provinces, such as Alberta, allow the recovery of damages for the sorrow and grief of survivors. Estates are limited to recovering only monetary losses caused by the death, such as funeral expenses.

Strict Liability

Certain activities are so fraught with risk that compensation to those injured is awarded without the need to establish the defendant’s fault. These are strict liability torts. According to the English case of Rylands v. Fletcher, anyone who brings something onto his land which is not naturally there is strictly liable if the thing escapes and injures someone. People are strictly liable for injuries caused by wild animals they keep; or even by domestic pets if they are known to be dangerous; or by fires they have started. However, in view of the expansion of negligence law, these strict liability actions are relatively rare.

One important example of strict liability is vicarious liability. This is where an employer is liable for the torts committed by its employees during their employment. Since employers usually have liability insurance and more resources to pay judgments than their employees, vicarious liability is frequently pleaded.

Land and Product Liability

There are other important torts. A person who unreasonably interferes with another’s use and enjoyment of land will be liable for a private nuisance. Under the law of occupier’s liability, everyone who occupies a building owes a duty of care to those who visit and who are injured on the premises.

Manufacturers are responsible under the law of products’ liability to those who are injured by products that are negligently designed, manufactured or marketed. Under the law, manufacturers are obligated to advise consumers of risks associated with the use of the product. In recent years, this law has resulted in manufacturers being held liable for failing to inform women of the side effects of birth control pills; and of the risk that breast implants can rupture, causing serious problems for the patients using them.

Economic Torts

By virtue of the economic or business torts, people will be held liable if they wrongfully interfere with the economic interests of others. There are a number of these torts, such as inducing breach of contract; intimidation; and conspiracy. Using unlawful means to prevent a third party from economically benefitting a specific person can also lead to a successful claim by the person who was harmed.

Fault-Finding

Of course, many injuries result from pure accident. If the victim cannot prove that the person who caused the accident acted wrongfully, they will not be entitled to any compensation, despite their own innocence, unless this falls under one of the strict liability torts. This has been strongly condemned by critics of negligence law. Some consider it unfair that persons who cannot prove that their injuries resulted from someone else’s negligence are left to bear their losses on their own.

Many accidents occur either at work or on the road. (See also Traffic Law in Canada.) Because of their frequency and tort law’s inability to compensate adequately all those injured at work, every province has workers’ compensation legislation. It allows workers to receive compensation without the need to establish fault. Those who are covered by workers’ compensation are not entitled to sue in tort.

Many Canadian provinces have enacted similar legislation for highway traffic accidents and have replaced tort law with “no fault” compensation schemes. There is a lively debate about the extent to which these schemes ought to be enlarged at the expense of the traditional tort-law process.

New Torts

Recently, new torts have emerged. Invasion of privacy has gained in importance. It has been recognized as a new tort action by some courts. Older torts, such as negligence, are applied increasingly to professional groups such as lawyers, architects and engineers to force them to live up to higher standards of competence; even with regard to people who are not their clients but who can be affected by their negligence. As well, negligence law has allowed bystanders who suffer nervous shock from witnessing terrible accidents involving relatives to sue for their damages caused by the traumatic experience. Rescuers who are injured in attempting to help those in perilous situations can sue the negligent person who created the emergency. The law of negligence has even begun to relax its traditional reluctance against requiring people to assist others; or to prevent harm from being caused to them. There is a growing list of exceptions to the rule that one need not assist others in peril.

People are also held accountable not only for their negligent acts but for misleading advice that may cause loss to others. This development relates to the expanding use of tort law to deal with negligence occurring within commercial or contractual relationships.

Even government officials and agencies are being held liable in tort for damages they cause the public in carrying out their functions. Those who support tort law have applauded these developments. They argue that the civil remedy in tort has been and can continue to be valuable to citizens fighting against more powerful elements of our society. 

See also Restitution; Malpractice; Insurance.