Basics of Canadian Tort Law for Personal Injury Cases

Plaintiffs or defendants in a case for personal injury claim may have heard about tort law, whether in the courtroom or from their lawyers.

But, as this term may seem alien to almost all of us, the concept behind it and its legal application can be briefly and simply explained to clients, with this article.

This article can be used by lawyers to help their clients understand tort law in Canada, and its implications on personal injury claims.

What is tort law?

Tort law is that system of statutes, doctrines, and legal principles that aims to remedy a wrong done by a person (called the offending party or defendant).

This remedy largely involves compensation equivalent to the wrong done in favor of the defendant’s victims (called the plaintiff, the offended, or the injured party).

By its nature, tort law is applied in a civil case by the injured party. Criminal acts can also result in civil liabilities.

Meaning of “torts”

A tort can be defined as damage or wrong done. In legal terms, it is a civil wrong arising from a breach of a person’s legal duty to another person.

When a tort occurs, the remedy provided by law to the injured person is a civil claim for damages, such as a personal injury claim.

Purpose of tort law

The primary purpose of tort law is to remedy the wrong done by the offender. Because we cannot bring back the previous situation of the injured party before the injury, the most appropriate remedy for them is to be compensated by the offender.

Another purpose of tort law is to discourage harmful and negligent acts. It provides legal consequences against the offending party, which aim to deter the same person or other people from committing similar wrongful acts.

Lastly, it sets a standard of conduct that every person must observe – whether it be in their day-to-day activities, or in their professional services.

This video shows a short overview of what tort law is:

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Tort law in Canada

Tort law in Canada is essentially governed by common law, since there is no single federal law for it. The negligence provisions of the federal Criminal Code may also apply in some cases.

There are certain provincial and territorial laws that include some aspects of tort law in Canada. For example, some provinces have enacted statutes governing some areas of negligence and professional liability. In Québec, its main tort law is its Civil Code.

What are the different types of torts in Canada?

There are many different types of torts under the common law in Canada:

1. negligence
2. intentional torts
3. strict liability
4. economic torts

These different types can be the basis of personal injuries claims by the offended party under the tort law in Canada, depending on the facts and circumstances of each case.

1. Negligence

Negligence happens when a person causes damage to another because of their carelessness or neglect.

It is different from intentional torts. The element of intent on the part of the offender is absent in negligence, unlike in intentional torts.

Personal injury claims in Canada based on negligence is one of the most common cases of claims for compensation.

Examples of tort claims for negligence

Here are some examples of personal injury claims in Canada based on negligence:

• motor vehicle and road accidents
• professional and medical malpractice
• defective or malfunctioning products

Some of them are also considered as examples of strict liability torts, as explained further below.

Elements of negligence

When filing a tort claim in court based on negligence, the following elements must be proven by injured party:

• Duty of Care: the defendant must have a duty of care that they must have exercised for the plaintiff; this duty may arise with or without a contract (e.g. patient-doctor relationship; duty of care of drivers to the public)
• Standard of Care: the defendant is required to exercise a certain level of reasonable care, either because of their profession, a contract, or those arising out of their duty of care which they owe to the plaintiff. The standard is usually based on the conduct of a reasonable or careful person in the given circumstance
• Breach: the defendant breached this duty and standard of care, either through their direct act/s or omission/s
• Damage: the plaintiff suffered damage because of the defendant’s breach based on a balance of probabilities; damages that can be claimed include general damages and/or special damages
• Causation: that there’s a relationship between the defendant’s breach and the plaintiff’s damage; also called the proximate cause, which says that the defendant’s act/s or omission/s must be the cause of the plaintiff’s sufferings
• Forseeability: that a reasonable person, when in the shoes of the defendant, could have foreseen that their act/s or omission/s would cause damage to another; this means that defendants are not liable for their act’s unforeseeable or remote effects

These elements also apply to the other types of torts which involve allegations of negligence on the part of the defendant.

The plaintiff has the burden of proving that they have a case for negligence against the defendant by establishing these elements through evidence.

Afterwards, the burden is shifted to the defendant, who will try to negate the tort claim by presenting adverse evidence and other defenses.

Head over to our Personal Injury page under Practice Areas for more articles on actual cases under tort law.

2. Intentional torts

Under the tort law in Canada, there are certain crimes under the Criminal Code that result to civil liabilities on the offender. These result in intentional torts, or torts against the person or their property.

As its name suggests, these acts are more intentional, compared to negligent acts. These acts include causing harm to the victim or obstructing the victim’s exercise of their legal rights.

In other words, the offender who commits a criminal act can also be civilly liable for damages under intentional torts.

Here are some of the common examples of intentional torts according to Canada’s tort law:

• assault
• battery 
• conversion
• defamation
• detinue
• false imprisonment
• harassment
• trespassing

Each of these crimes has its own elements that the plaintiff must prove in court, to justify the award of damages in their favor.

Choosing whether to file a criminal case or civil suit will depend on what the injured party wants to be the penalty for the defendant:

• civil case: if they want to recover compensation for personal injury claims, then filing a civil case is proper
• criminal case: if they want the offender to be imprisoned, or fined, or both, a criminal case can be filed

3. Strict liability torts

Strict liability torts happen when the defendant does a specific act, which caused damage to another person. This is regardless of whether there was fault on the part of the defendant, and whether there was intent to cause harm or not.

Here, the plaintiff only needs to show that the defendant did the specified act, and it is upon the defendant to rebut this by proving that they exercised due diligence.

In most cases, the elements of negligence (as discussed above) will also apply in cases of strict liability torts.

The tort law in Canada provides for the following instances when strict liability torts can occur:

• product liability
• liability over escaped animals
• vicarious liability

Product liability

According to Canada’s tort law, anyone involved in a product’s supply chain may be held liable in a personal injury claim when their product injured another person. These include:

• manufacturers
• producers
• vendors
• installers
• distributors
• marketers or advertisers

This is also related to the implied warranties that the law requires that the above-mentioned parties must assume in relation to their products.

For instance, manufacturers warrant the safety of their products, or marketers warrant that no misrepresentations or false statements are made in the products’ promotions.

In a personal injury claim for product liability, the plaintiff (the consumer or buyer) must prove the following, applying the elements of negligence under tort law in Canada:

• that the defendant’s duty of care over the plaintiff was breached, as shown by the defendant’s defective product or instructions
• that the defect or failure to provide proper instructions on the use of the product was because of the defendant’s negligence
• that the plaintiff suffered personal injury because of the product, which was caused by the defendant’s negligence on a balance of probabilities

Another basis for this liability can also be the provincial and territorial statutes on product liability and negligence. Examples are the Sale of Goods Act of Ontario and the Consumer Protection Act of Québec.

There are also federal product liability laws that apply to certain sectors or industries, such as:

• Canada Consumer Product Safety Act
• Food and Drugs Act
• Pest Control Products Act
• Motor Vehicle Safety Act
• Hazardous Products Act

Liability over escaped animals

Common law provides that persons who introduced animals to their land, which naturally must not be there, are liable for the damage caused by it after it has escaped or got lost.

For the plaintiff, it’s important to establish that the owner (the defendant) was negligent in making sure that the animal was kept. Owners have the duty of care to ensure that the fence is in good condition, that it’s properly locked, or that the animals are properly tied.

Here, the court will assess whether the owner was negligent in taking care of the animal. Otherwise, award of damages is proper in favor of the plaintiff.

Vicarious liability

Generally, only the defendant who has direct participation in the wrongful act can be held liable under the tort law in Canada.

However, the doctrine of vicarious liability provides that a third party can also be held liable along with the principal offender, because of the relationship between the two.

This applies in some of the following cases in a personal injury claim:

Under this common law doctrine, the offender’s acts must be authorized by the third party who is responsible for them. Unauthorized acts may also be included if they’re reasonably connected to the offender’s authorized acts.

4. Economic torts

Also called business torts, economic torts provide that offenders are liable for any economic loss by the plaintiff, because of the offenders’ act/s or omission/s.

Tort law in Canada provides that economic tort usually arises in a business or contractual transaction, such as:

• when the defendant deprives the plaintiff of their supposed economic benefits; or
• when the plaintiff’s economic interests were interfered by the defendant

As with intentional torts, economic torts may also be based on a criminal act, as defined in the Criminal Code. Some of these acts which result to economic torts include:

• conspiracy
• fraud 
• inducing breach of contract
• intimidation
• passing off
• trade restraints
• unlawful interference with economic interest

What is a tort claim in Canada?

Tort claims or personal injury claims in Canada are claims for compensation for the loss and damages of the injured party, arising out of the different types of torts.

This can also refer to the civil case filed in court based on one of the different types of torts, which gives rise to a cause of action for the plaintiff against the offending party.

Compensation in a tort claim

When filing a personal injury claim in Canada, the amount of compensation is one of the important considerations for the plaintiff.

According to tort law in Canada, there are two types of damages that the court can award to the plaintiff, which forms part of their compensation:

• compensatory damages:
  • general
  • special
• non-compensatory damages:
  • aggravated
  • punitive
  • nominal

Canada’s common law has limited the amount of general damages that plaintiffs can claim. As of 2024, the limit is $450,000.

Tort claim settlement

Tort law in Canada allows settlement between parties in a personal injury claim. If consented, this settlement becomes binding between the parties, and will prevent the filing of a case, or a stay in proceedings if it’s already filed.

Statute of limitations for tort claims

Another consideration for plaintiffs in a personal injury claim in Canada is the provincial and territorial statute of limitations. Usually, plaintiffs have 2 years to file their claim in court; otherwise, they will be legally barred from filing their claim.

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