Negligence, Other Torts & Civil Wrongs
What is a tort? What is negligence? What are civil wrongs?
These and other questions will be canvassed on this and our alternative website. Our textbook, CANADIAN LAW AND BUSINESS STUDIES, contains a full chapter on this topic.
OVERVIEW - GENERAL INFORMATION
Suing someone! - Can I sue?
This is law information, not legal advice
- Someone deliberately or negligently may cause physical harm to someone or to another’s property, reputation, or business.
- That harm may have criminal consequences, but it may also have civil ramifications in that the act is a “tort” and the person harmed is then entitled to money compensation (damages) for the harm done.
- The individual harmed starts a civil lawsuit against the person who caused the harm to obtain compensation.
- Negligence is a tort. When does negligence occur? In broad terms, someone who can reasonably foresee harm to another that is reasonably proximate (close by) and someone is harmed, an actionable tort may have been committed - a civil wrong.
- Where are negligence claims heard? Claims are heard in a civil court. Some courts have a monetary limit. For example, in Ontario, if you are claiming $100,000, your claim must proceed in the Superior Court. The monetary limit for the Small Claims Court is currently $25,000. Limits change from time to time and must be checked. There may be consequences to bringing your claim in the wrong court. Check with a practicing legal advisor. Where there is negligence, who can sue? The person harmed physically, emotionally, mentally or reputationally may sue.
- Negligence cases in Canada are fully canvassed in the the textbook Canadian Law and Business Studies (noted below).
- Some wrongs that cause or may cause harm are prosecuted by the state in a manner like a criminal proceeding but do not result in a criminal conviction. These “regulatory offences” are often created by provincial statute and like driving offences may result in licence suspension, fines, or jail time.
- Regulatory offences are strict or absolute liability offences and accordingly a conviction is easier to obtain than in a criminal proceeding where general or specific intent as well as the illegal act must be proven.
Links, references, and additional content below. Please check out our alternative site for possible introductory information on this topic: https://www.fera-gasparini.ca/. Our book CANADIAN LAW and BUSINESS STUDIES contains a full chapter on this topic with case citations: https://bit.ly/3Ay0lSR.
Can negligence be unintentional? Kind of! Negligence is a tort, but it is not an intentional tort like assault or battery. Only minimal intent is involved. The perpetrator does not set out to harm or injure someone in particular or just someone. But in basic terms, he doesn’t really seem to care if he does hurt or harm someone. In negligence claims, intent is looked at objectively from the perspective of a reasonable person. What would a reasonable person have done or do in similar circumstances? Swinging a bat in a crowded room as opposed to an open field will likely be seen as a negligent act if damage or harm occurs. A reasonable person would have seen that there could be harm.
Can negligence be criminal? Yes, Canada’s Criminal Code that applies everywhere in Canada has sections dealing with criminal negligence. Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. The Criminal Code distinguishes between causing bodily harm by criminal negligence and causing death by criminal negligence. The penalty for the latter can be imprisonment for life.
Are negligence and malpractice the same? Yes, the care given by a physician or doctor has to meet a certain standard comparable to what other physicians or doctors of comparable skill would render. If they do not, they are negligent, and their acts constitute malpractice. Now, a physician or doctor outside of rendering health care can also be negligent. For example, the physician could be liable in negligence if they kept an unsafe waiting area and someone got hurt or they harmed their neighbour by reckless acts.
What is defamation? It is either slander (spoken) or libel (written). Defamation is an intentional tort. It is something said or written about another that is untrue and which harms that other person’s reputation because it is heard or read by a third-party or many others. What is qualified privilege? It is a defence that applies in defamation. For example, members of Parliament can speak in the House and provided there is no malice can escape a claim of defamation based on qualified privilege. This privilege also applies to members of a provincial legislature or a member of city council speaking in their respective forums. An employer providing a reference can express both strengths and weaknesses about a former employee without fear of a claim of defamation provided the statements are made in good faith. In general terms, qualified privilege applies where the person who makes a communication has an interest or a duty to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential
WHAT IS FAMILY VIOLENCE? Canada's Divorce Act defines family violence as any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person.
Can I sue if my partner is violent? Lawyers filing for divorce on behalf of their clients are now also filing claims for damages due to family violence (and are succeeding).
What is a limitation period? Provincial laws impose time limits - limitation periods - on how quickly after the harm occurs that you must sue. One should seek compensation for the harm done soon after it occurs when memories are fresh and evidence is more easily obtainable. The best case in the world will FAIL if not started within the limitation period. In Ontario, there is an ultimate limitation period of 15 years after the act or omission occurred on which the claim is based took place. The basic limitation period says a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Check with a professional. Some provincial laws extend the limitation period for family violence.
This is general information. On personal matters consult with a lawyer.
ROAD RAGE COSTLY: Road rage may involve a number of civil, regulatory and criminal wrongs. In British Columbia, with features of aggressive abusive language, nose to nose threats, tire slashing and eventually vehicle ramming, the bodily injures cost the person with "rage" just over $325,000. See Brown v Ponton, 2022 BCSC 2248.
THREATS IN ROAD RAGE: In the Ontario Moran case, driver Chu threatened driver Fabrizi over who knew the rules of the road and Chu punched Fabrizi's car. Fabrizi took off quickly, went through a red light and struck another car in which Moran was hurt. Chu was found 50% responsible for harm to Moran. But for Chu's threats, the accident would not have happened. This case helps answer the question, "Who is responsible for what in road rage?" This segment and the previous one help answer the question, "What is road rage?".
PRIVACY TORT: INTRUSION UPON SECLUSION
In Jones v. Tsige (2012), the Court of Appeal for Ontario allowed a lawsuit against a bank worker snooping into the financial records of someone she knew. The tort is often referred to as “intrusion upon seclusion”.
Recently, an Ontario court referred to this tort as a “recognized cause of action”: 2022 ONSC 5886 (CanLII) | Marcellin v LPS | CanLII.
WHAT STANDARD OF CARE IS REQUIRED FROM A MEDICAL DOCTOR OR PHYSICIAN? It is not one of perfection. The standard is not focused on the results achieved but, on the procedures followed to best deal with what seems to be causing the ailment. It does not require the physician to cure the patient or guarantee survival. In other words, the question is more whether the attending physician exercised a degree of skill and competence comparable to other physicians in similar circumstances. In the Frocken case, the patient went to the hospital after bleeding inside the neck. At the hospital, everyone recognized that an embolization should be done within 24 hours, and they set the procedure for the next day. When admitted the patient was alert, not bleeding, alert and stable. But shortly after admission suffered another bleeding episode and died with a few days. The doctors and nurses were NOT found negligent for not scheduling an operation during the wee hours of the morning.
SEXUAL ASSAULT - DOUBLE JEOPARDY - SORTA
Some wrongs can be pursued both criminally (resulting in punishment of the perpetrator) and civilly in a lawsuit (resulting in compensation being paid by the perpetrator for the harm caused to the victim).
This is merely law information. Victims should immediately consult a practicing lawyer.
Please visit us our alternate website: https://www.fera-gasparini.ca/ and also to have a quick look inside our new book
Canadian Law and Business Studies: https://bit.ly/3Ay0lSR.
This book contains a full chapter on "Torts and Other Civil Wrongs".
PARENTAL NEGLIGENCE: In a recent case, a provincial appeal court found a father liable for parental negligence with respect to injuries sustained by his son as a result of a motorcycle collision with another vehicle. The five year old was taken on a ride on a motorcycle in a makeshift seat and suffered severe burns and fractures. See 2022 NBCA 4 (CanLII) | Edmondson et al. v. Edmondson and other | CanLII .
LAWSUIT AGAINST VIDEO GAME FORTNITE: In Quebec, the makers of Fortnite, Epic Games, is facing a class-action lawsuit for knowingly creating a very addictive game. Is this negligence? Was harm reasonably foreseeable? Law suits against video game developers vary: copyright infringement, plagiarism, or even wrongful death.
PUBLIC URINATION VILLAINS - PARTY GOERS AND CLUBBERS: In the Soho district of London England, buildings are being sprayed with “pee paint” which results in splash back. Westminster City Council spends more than $1 million yearly doing clean ups. In Canada – Toronto, Mississauga, Oshawa, Ottawa, for example – public urination is a regulatory offence under municipal bylaws. Since it can cause property damage and be a nuisance, it must also be a tort. In San Francisco, the problem is so bad, it destroys lamp posts. In Canada, unnecessary gestures or movements associated with the act may bring someone under the Criminal Code for “nudity” or “exposure” (s. 174(1)) or an “indecent act” (s. 173(1)). Check with a practicing criminal law lawyer. Meanwhile in Soho (England), an aspect of scatology or extreme competitiveness, there is now a contest as to who can relieve themselves furthest from the wall.
DEFAMATION: Can a carrier or search engine that allows defamatory remarks be held responsible? In Australia, a supreme court decided that a search engine by publishing highly offensive third-party webpages by means of indexing hyperlinks leading to defamatory websites (presented as results on its search engines) was also responsible for the defamation. This was so without commenting about or approving of the defamatory comments or webpages. However, the search engine had been given the opportunity to take down the offending material or not allow access to it. No comparable case in Canada seems to be presently available (2023). In Canada, a journalist publishing another’s defamatory remarks has certain protections in some circumstances where they are reporting on something of pubic interest. These are complex areas of law and this is only generalized information. Its subtleties are best explored with a lawyer who specializes in such matters. What is defamation? Defamation involves untrue statements, written or spoken, about another that may cause harm, especially reputational harm, to that other person when read or heard by third-parties.
NO TORT for BREACH OF STATUTORY DUTY: Each level of government regulates certain matters by various means including the issuance of licenses.
This implies that there is some sort of "government" involvement, oversight, responsibility or enforcement as it pertains to the area being controlled or regulated.
But while there may be regulations, governments do not always get seriously "involved" or vigorously act.
Generally, it may be said that there is no tort of breach of statutory duty: Wu v. Vancouver (City), 2019 BCCA 23, leave to appeal to SCC ref’d, 38561 (20 June 2019) [Wu]:
Statutes that regulate or control do not usually create sufficient proximity between a government actor and individual members of the public potentially affected by the exercise or failure to exercise legislative powers intended for the good of the public.
In the Frazier case, while the federal government regulates explosives, it was not held responsible for a woman injured when explosives stored at a nearby residence being renovated were ignited: Canada (Attorney General) v. Frazier, 2022 BCCA 379 (CanLII), <https://canlii.ca/t/jswnq>
ECONOMIC LOSS - TORT OF “UNLAWFUL MEANS”
• The Supreme Court of Canada clarified that the economic tort of unlawful interference is better described as the unlawful means tort: A.I. Enterprises Ltd. v Bram Enterprises Ltd.
• The unlawful means tort requires the defendant to have committed an actionable wrong against a third party (not the plaintiff) but that wrong intentionally causes economic harm to the plaintiff.
• Conduct is unlawful if that third party could sue or would be actionable if the third party had suffered a resulting loss.
• The unlawful means tort can be pursued along with inducing breach of contract.
• See Carducci v. Canada (AG), 2022 ONSC 6232 (CanLII), paras 60 and 62: 2022 ONSC 6232 (CanLII) | Carducci v. Canada (AG) | CanLII.
This is only law information, not legal advice
THE TORT OF INDUCING BREACH OF CONTRACT
• The law recognizes the tort of inducing breach of contract which has also been referred to as the tort of interference with contractual relations.
• The four elements of the tort are as follows: (1) The plaintiff had a valid and enforceable contract with another party (not the defendant but a third party); (2) The defendant was aware of the existence of this contract; (3) The defendant intended to and did procure the breach of the contract; and (4) As a result of the breach, the plaintiff suffered damages.
• The defense of justification (in an employment case, a non-disclosure or non-competition agreement, for example) might be used by the defendant.
• See Park Place Centre Ltd. v. Manga Hotels (Dartmouth) Inc., 2022 NSSC 317 (CanLII) para 62: 2022 NSSC 317 (CanLII) | Park Place Centre Ltd. v. Manga Hotels (Dartmouth) Inc. | CanLII.
RECALL PREFERRED TO A CLASS ACTION LAWSUIT:
In Ontario, someone suing on behalf of a group may be certified as a class action lawsuit if a five-part test is met:
(1) the pleadings disclose a cause of action;
(2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff;
(3) the claims of the class members raise common issues;
(4) a class proceeding would be the preferable procedure for the resolution of the common issues; and
(5) there is a representative plaintiff who meets certain criteria.
In the Coles case, a class action was not seen as the preferable procedure for air bag defects in vehicles. Chrysler Canada’s recall campaign was seen as preferable to address the product defect: Coles v. FCA Canada Inc., 2022 ONSC 5575 (CanLII)