Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about some basic types of torts so you can understand the fundamental concepts behind torts and understand some of the common types of torts that are available in Canada. This is sort of the tort law 101 in terms of understanding different types of torts. 

We will begin with our disclaimer that this course is not legal advice.  It’s only for educational purposes.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

What is a tort?  It comes from the Latin word “Tortum”, which simply means wrong or injustice. What does a tort do? It imposes a duty of care which is imposed by law. It is not by choice—you and I don’t need to sign anything to be held liable under tort. Just by virtue of living in a society we are all bound by different torts, which is why tort is important—because it is different from the law of contract where you have to actually sign into a contract to be liable under the contract.

The 2nd thing you want to keep in mind is that the concept / or fundamental reason for tort law is to provide compensation for the loss or injury to the harmed person. The fundamental concept is not to punish the wrongdoer, although, punitive damages are indeed awarded in tort law. Just so that we’re clear about the importance of tort law, one of the things that you want to keep in mind is that tort law covers many day to day circumstances. Our various social, technological, economic circumstances are covered by tort law and that’s why a better understanding of tort law is important.

Some of the examples of tort law are product liability: any time you manufacture a product or you sell a product you may be held liable if there are injuries or harm caused by that product.  You know we hear all kinds of examples where you go to a restaurant and you have consumed food which had bacteria or some other problems and it caused you illness and so the restaurant owners may be held liable for the food.

Similarly, we buy all kinds of products in our day to day life.  There may be liabilities on the seller or on the manufacturer of those products. They’re all covered under tort law. We deal with all kinds of professionals in our lives: lawyers, doctors, accountants, plumbers, electricians and they have a liability with respect to the duties that they perform in your circumstances. Occupiers liability: we occupy all kinds of spaces—our motel / hotel, land (agricultural land) all kinds of things—there could be occupiers liability arising from that.  There is vicarious liability: which is being liable for the actions of someone else. All of these various aspects of our day to day lives are covered by tort law.

What are some of the common types of torts? One kind is called intentional torts; torts of negligence; strict liability tort and economic tort.  Let’s briefly talk about these torts. Intentional torts: are some of the common torts e.g., battery, assault, false imprisonment, sexual harassment, trespass, conversion, detinue, and so on.

We will go over these torts individually in separate lectures and I’ll explain to you what are the common—the basic elements of each tort. What is it that you need to establish in that tort? What are some of the defences with respect to that tort.  Over here I just want to let you know that these torts exist. 

Battery and assault are often mixed.  People consider assault as battery but battery is slightly different.  Battery is interfering with someone’s bodily integrity.  Touching someone without permission could constitute battery.  A common example is hockey players.  When hockey players come into contact with each other during the game of hockey, they’re actually committing the tort of battery.  The reason why there is no tort of battery against hockey players or between hockey players is because there is a defense of consent.  Under the rules of hockey, the contact is permitted.  When you play hockey, you are consenting that the other players may come in contact with you bodily.  That’s why even though battery is committed, the person is not held liable—because you have provided consent for that. 

Similarly, sexual harassment is also considered a crime.  The person may face consequences under the Criminal Code of Canada in addition to a civil action in sexual harassment. 

Trespass is another one. If someone arrives on your property without your permission that person may be committing an act of trespass and you may have remedies in civil law, in addition to other options to seek remedies under the tort of trespass. 

Conversion is using someone else’s property without permission.  All of these are intentional torts because they are intentional acts and they have specific requirements for you to show that the intentional tort has been committed and that there is no valid defense by the person who has committed that. 

Another example of battery is when a surgeon operates on a person and conducts surgery, that is an act of battery.  And that’s why as you and I know that prior to any surgery you sign a consent form where you allow the surgeon to conduct that surgery.  If it is without permission then that act of surgery will constitute battery.

Negligence—is a very broad category of torts.  It covers many aspects of our day to day life.  Essentially, what negligence does is that it imposes a duty of care on all of us and the duty of care is to act reasonably so others are not harmed.  There are 2 aspects of it: one is that there is a duty of care and then the 2nd is that there is a standard of care.  What kind of standard of care that you and I need to follow?  In legal terms it’s called a reasonable person’s standard.  What does that mean?  

In very simple terms, what it means is “what would a reasonable person have done in the similar circumstances?”  Would the person have done the same thing?  Would the reasonable person have done the same thing as you have done?  Then, obviously you have met the standard of care and you may not be held liable.  If you acted in a way that a reasonable person would not act, then you may be held liable as long as there is a duty of care found in the specific circumstances of your case/  

Then this reasonable person standard gets more nuanced based upon the situation.  For example, if we’re talking about a surgery situation in a medical malpractice scenario, if you have a claim against a surgeon for not doing the surgery properly—what the court will do is, the court will consider what would another reasonable surgeon have done in similar circumstances.  If the surgeon or any reasonable surgeon would have done the same procedure in the same manner, then obviously the tort has not been committed.  That’s how the standard of care is applied in different circumstances.

There is another concept within the negligent category called contributory negligence.  What that means is if I am injured by the recklessness or negligence of another person but, in getting that injury, I myself acted in a negligent way then I may be held contributory negligence with respect to my own harm.  That’s another aspect within the negligence law.  The common example of law of negligence torts is motor vehicle accidents that we deal with all the time; product liability; professional liability, etc.

Strict liability: Now what you want to keep in mind in strict liability is this basic concept, that in strict liability the injured person does not need to prove fault by the wrongdoer.  They don’t need to establish that.  As long as there is an injury, in strict liability cases the injured person needs to be compensated.  That’s it.  Proving ‘fault’ is not required.  That’s why it’s called strict liability.  If the act has happened, liability correspondingly arises. 

A common example could be dog bite.  If you are an owner of a pet or a dog that has harmed another person, then the owner’s liability is a strict liability.  Your justification may not help.  The liability is imposed strictly.  Another common example of strict liability is that if any tort is committed by an employee during the course of his or her employment the employer is vicariously liable.  Employers justification of any kind would not work.  Employer is simply liable for the employee’s tortious conduct during the course of employment.

Another category is economic torts: These obviously, as the name implies, deals with economic aspects of our day to day life.  One of the common examples of an economic tort is inducing breach of contract.  If two parties have a contract and a third person who was not a party to the contract does something unlawful in such a way that one party breaches the contract with the other, then the harmed party may sue that 3rd person for the breach of contract between the other two parties. That’s inducing—asking someone or making someone to breach their contract with another person by unlawful means.  It’s another tort.

Intimidation in a civil matter, if it causes harm, it is it is subject to a tort.  Similarly, conspiracy (all kinds of civil conspiracies) will fall under economic tort.

What is it that you want to remember—that a better understanding of torts will lead to a better understanding of one’s rights and responsibilities in our day to day lives.  Also each tort contains different elements that must be proven to successfully seek remedies from the court.

In our future lectures we will pick every single tort, especially the most common ones.  Go through the basic elements that you need to prove in a court to seek remedies and then I’ll talk about the defences that may allow you to avoid liability in those torts.

Thank-you for watching and I look forward to seeing you in the next lecture.