Canadian tort law

As with most common-law countries, Canadian tort law is primarily judge-made law, much of which is inherited from English tort law, which is supplemented by mostly provincial regulatory laws such as provincial automotive safety Acts. The core of Canadian tort law has not strayed far from its English origins, however, it is in the evolving areas of law, such as nuisance, defamation, or medical liability, where Canadian jurisprudence has set out on its own. The defendant in a tort suit is called the tortfeasor, and most often, financial compensation is what tort victims acquire.[2] All torts require proof of fault in order to determine legal responsibility, however, fault is measured differently for the different types of tort.[3] The main difference between intentional torts and unintentional torts is intent. An intentional tort is when a person intends to achieve a particular outcome that results in injury to people or damage to property, whereas an unintentional tort such as negligence, occurs when there has been a lack of duty of care or foreseeability that results in injury to people or damage to property. There are criminal code offences in Canada that could also qualify as tort law under common law. However, most victims do not sue those who are criminally charged since the accused do not have the financial means to pay back the victim or because the accused is incarcerated.[4]

Except where excluded by statute, the common law intentional torts are applicable in Canada. This includes:

• assault[5]
  • Threat by one person to commit unwanted physical contact to another person
  • Reasonable belief to feel threatened with imminent harm
• battery[6][7]
  • Unwanted direct or indirect physical contact
  • Contact was intentional
• false arrest
  • Deprivation of liberty
  • Insufficient reason to arrest OR excessive force
• false imprisonment
  • Deprivation of liberty
  • Lack of lawful authority
• nuisance
  • The defendant engages in some land use that affects the plaintiffs use or enjoyment of her/his land
  • The defendants activity is an unreasonable and substantial interference with the plaintiffs use or enjoyment
• trespass[8]
  • Defendant enters onto plaintiff's property
  • The defendant does not have the occupiers express or implied consent
  • Defendant takes possession of plaintiff's personal property
• business or economic[9]
  • Deceit, fraud, and conspiracy
  • Interference with contracts
  • Interference with business relations
• intentional infliction of mental distress[10]

Currently, there is no consistent approach surrounding the tort of invasion of privacy in Canada. Four provinces, British Columbia,[11] Manitoba,[12] Newfoundland[13] and Saskatchewan[14] have created a statutory tort. Ontario has recognized the existence of the tort of invasion of privacy called "intrusion upon seclusion".[15] British Columbia, on the other hand, has held that the tort does not exist in that province under the common law.[16]

There was some debate over whether there was a common law tort of discrimination. This was eventually dismissed by the Supreme Court in Bhadauria v. Seneca College. This issue was further examined by the court through Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, 2008 SCC 39[17]

Negligence occurs when the following concepts are not met:[18]

• duty of care
  • Reasonably foreseeable that another individual will suffer harm
• standard of care
  • What would a reasonable person have done in a similar circumstance
• causation
  • That the defendant actually caused that injury
• remoteness
  • The resulting injury or damage could be reasonably foreseen at the time of the incident

In the case of Hill v. Hamilton-Wentworth Regional Police Services Board, Mr. Hill was charged with ten counts of robbery, however, he was soon acquitted of all charges. After the charges were dropped, he then sued Hamilton's police service as well as some of the officers who were involved in his arrest. Hill argued that the police were negligent in conducting a thorough investigation because the police officers did not properly interview the witnesses, which ultimately led to his arrest. Hill's lawsuit was eventually overturned by the Supreme Court of Canada because there was not enough evidence to support Hill's findings that the police were negligent in their duty or standard of care. What is important to note about this particular trial is that three out of the nine Supreme Court Judges did not view the negligent tort claim as being lawful or practical because a strict duty of care towards suspects would therefore interfere with how the police operate in terms of apprehending offenders and investigating crimes.[19]

• Baudouin, Jean-Louis; Linden, Allen M. (2010), Tort Law in Canada, Wolters Kluwer, ISBN 9789041133731

• Analysis of negligence law by Justice Major
• Duhaime: Tort Law in Canada - An Introduction