7. The Tort System

Tort Law Overview

Understanding tort law is important for businesses in Canada because it helps to protect them from financial loss due to legal claims from third parties. It also helps to ensure that businesses are held accountable for their actions and can be held liable for any damage or injury that is caused to another party. Through knowledge of and alignment with the principles of tort law, businesses can reduce their risk of being sued for negligence or other such claims.

At its most basic level, tort law applies to situations where a person or organization does harm to or damages another person or business. The word “tort” means “wrong” in French. Essentially, a tort can be understood as a civil wrong to a person or property other than breach of contract. A tort is any legally recognizable injury arising from the conduct (or sometimes failure to act) of persons or corporations. The damage can happen in a variety of circumstances and may be intentional or unintentional.

Tort law seeks civil remedies to repair harms or damage while criminal law seeks penalties in the form of prison terms or fines for criminal acts. Tort also differs from contract damages in that Tort applies to everyone in the jurisdiction, whereas contract damages only apply to those bound by a contract.

There are two main types of torts in Canadian law, intentional torts and unintentional torts. Intentional torts occur when an action is knowingly or deliberately committed against another. Unintentional torts refer to actions which unintentionally cause harm or injury to a person or persons.

Key intentional torts include:

  • Assault and Battery
  • False Imprisonment
  • Trespass
  • Nuisance
  • Defamation

Key unintentional torts include:

  • Negligence
  • Product Liability
  • Professional liability
  • Product Defamation
  • Inducing a Contract Breach
  • Passing Off

Employers are ‘vicariously liable’ for the actions of employees as discussed in the section on labour law. If an employee, agent, or contractor commits a tort, then the business can be held liable for damages.

While torts are wrongs committed against others causing some form of injury or harm, many torts could also result in criminal action which would be pursued in the criminal rather than civil court system.

Tort law operates to provide remedies to individuals who have suffered losses due to the wrongful acts of another. It is the legal system’s way of holding wrongdoers accountable for their actions and providing recompense to innocent parties. Remedies often take the form of financial compensation. Tort law also seeks to deter potential wrongdoers from committing similar acts in the future.

The standard of proof is lower for civil suits than for criminal cases, and a finding of liability in a tort case does not establish guilt or innocence in a criminal matter. The criminal standard for conviction is ‘beyond a reasonable doubt’; meaning that the Crown must prove to a judge or jury that the crime was committed beyond a reasonable doubt. However, in a tort case, the level of finding liability is based on the balance of probabilities. This effectively means that if it is 51% or more likely that the tort was committed, then the judgement would be that the tort was committed. In many cases, judges and juries will ‘determine’ which party is more credible and more likely to be telling the truth.

Tort trials can be jury trials or judge only trials. In Jury trials, juries decide the question of facts (what is true and what is not true) and judges focus on the questions of law (making sure the laws and procedures of the court are properly applied). In the case of a judge only trial, the judge manages both the questions of law and the questions of fact.


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Business Law and Ethics Canadian Edition Copyright © 2023 by Craig Ervine is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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