Documentation:Torts/Introduction
Introduction
A tort is an injurious wrong for which a person may be held civilly liable to another.[1] The common law recognizes dozens of different types of torts, the features of which vary and can be categorized in different ways.
Tort suits are civil claims filed by plaintiffs/claimants against defendants. In response to a tort suit a defendant may avoid liability by denying having done anything wrongful to the plaintiff or by defending their conduct as justified in the circumstances. When a court finds a defendant liable, the plaintiff is entitled to a remedial order against the defendant, typically an order to pay damages (money) but sometimes an order of injunction (to stop doing something harmful).
Tort law's place in the legal system
| What is Torts? And what Torts is not |
|---|
|
Professor Lindsay Wiley of the American University Washington College of Law introduces principles of common law torts in the United States, in an informative video hosted by the University of Utah S.J. Quinney College of Law's Center for Innovation in Legal Education.[2] |
Tort law is a branch of private law that recognizes and responds to civil wrongdoing. It is part of a broader legal system that governs our relationships with each other and with our government.
Contract law
The law of contract protects parties' interests in making and keeping agreements. A claim in breach of contract concerns the defendant's violation of an agreement entered into with the plaintiff. Even though breach of contract can be considered a civil wrong, it is not usually considered to be a tort. Tort claims typically do not arise from any prior agreement between the parties. Tort cases often (although certainly not always) involve parties who have never met each other prior to the defendant's injuring of the plaintiff.
Restitution and unjust enrichment
The law of unjust enrichment protects plaintiffs' interests in getting back benefits they have been unjustly deprived of. Unlike a claim in tort, a claim in unjust enrichment does not depend upon proof of wrongdoing. Rather than showing that the defendant has wronged them in some way, the unjust enrichment plaintiff must show that the defendant was enriched at their expense in a way that the law does not permit. Whereas the damages remedy in tort typically focuses on restoring to the plaintiff what they have lost due to the defendant's conduct, the restitution remedy for unjust enrichment focuses on taking back from the defendant what they have gained from the plaintiff.
Property law
The law of property defines and establishes people's legal relationship with property.[3] Tort law empowers plaintiffs to seek recourse against people who interfere with their property in certain ways, for example, by trespassing onto their land.
Criminal law
Both criminal law and tort law respond to wrongdoing.[4] However, when a crime is committed the state (the Crown in Canada) has carriage of the prosecution, the rationale being that a crime violates an obligation that is owed to all of society, not just the injured individual.[5] Tort law is about addressing personal wrongs committed to people by others. It is only the injured party who is entitled to sue the person who injured them. While there may be so-called “victimless crimes,” there are no victimless torts.
Constitutional and public law
Whereas tort law concerns (horizontal) relationships between people in society, public law concerns the (vertical) relationships between people and their government.[6] Many laws, such as the Canadian Charter of Rights and Freedoms, directly bind only the government and officials, not private individuals. Tort law, by contrast, presumptively applies to everyone. Certain actions of government officers can be both a tort and a public law Charter violation. For example, a police officer who attacks, detains and searches an innocent person without lawful authority both commits the torts of battery and false imprisonment as well as breaches the Charter.[7]
Categories of tort concepts
Lawyers often find it helpful to think about legal doctrines in terms of categories. There is no consensus about the best way to categorize legal concepts.
Tort law is often categorized in terms of the three main types of tort liability: intentional torts, negligence and strict liability. When we categorize tort law in this way we are distinguishing tortious concepts based on the degree of the defendant's responsibility for their conduct. Tort law concepts can be categorized in other ways, as the following table illustrates.
| Conceptual feature | Corresponding categories (and examples of causes of action) |
|---|---|
| The plaintiff’s protected interest | Bodily integrity (trespass to the person, negligence) • personal dignity (invasion of privacy, defamation, harassment) • mental health (intentional infliction of mental suffering, negligent infliction of mental injury) • personal property (trespass to chattels, conversion, detinue) • real property (trespass to land, nuisance) • economic wealth (business torts, negligent misrepresentation, negligently causing pure economic loss) |
| The type of damage the plaintiff must prove | Torts that are actionable per se (trespass to the person, trespass to land, trespass to chattels, defamation) • torts that are actionable upon proof of damage (negligence, nuisance, intrusion upon seclusion) |
| The type of damage the plaintiff suffers | Physical injury (battery, negligence) • mental injury (intentional infliction of mental suffering, negligent infliction of mental injury) loss of liberty (false imprisonment) • loss of privacy (invasion of privacy) • reputational harm (defamation) • property injury (trespass to land and chattels, nuisance) • economic loss |
| The defendant's responsibility | Intentional harmful conduct (intentional torts) • negligent harmful conduct (negligence torts) • non-careless harmful conduct (strict liability torts) |
| The defendant's conduct | Physical actions • omissions to act • statements • uses of property |
| The nature of the parties | Individuals • public authorities • professionals • companies • other organizations |
Pleading a tort action
The early civil procedure of the writ system influenced the development of our law today. The writs were forms ("forms of action") provided by court clerks that standardized legal pleadings and acted as commands of the Sovereign. Defendants were constrained by the parameters of the writ in order to plead their complaints.[8] This presented a problem for plaintiffs with novel complaints.
The writ system went out of practice by the end of the 19th century and was replaced by the practice of pleading facts that courts recognize as tortious, rather than pleading legal actions provided in established forms.[1] Thus today we plead facts, not law.[9][10]
Letang v. Cooper, [1964] EWCA Civ 5 [11] |
|---|
| Mr. Cooper accidentally drove his Jaguar over Mrs. Letang's legs. More than three years later, Mrs. Letang sued Mr. Cooper alleging both negligence and trespass to her body. The relevant limitation statute provided that ordinarily tort claims were subject to a six year limitation period, but a three-year limitation period applied to "actions for damages for negligence." Could Mrs. Letang get around this shorter limitation period by pleading her case as one of trespass to the person?
The Court of Appeal of England and Wales held that it didn't matter what legal label or form Mrs. Letang used to describe Mr. Cooper's tortious conduct. What mattered was whether the facts Mrs. Letang alleged amounted to what the law recognized as "negligence," the word used in the limitation statute. Claimants plead facts; they argue law. Since Mrs. Letang alleged that Mr. Cooper had been careless in not seeing her (it's not that he meant to hit her body), her claim was subject to the limitation statute's 3-year time-bar and it was thus brought out of time. |
| "A cause of action is simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. ..." – Lord Justice Diplock [12] |
The Supreme Court of Canada has affirmed this statement of Diplock L.J., that "[a] 'cause of action' is only a set of facts that provides the basis for an action in court."[13]
Nature of common law elements
The elements of various common law torts are presented throughout this wiki commentary. It is important to remember that the common law of tort has developed over time through the decisions of judges. It is not unusual to encounter different courts and secondary sources expressing elements of the same torts somewhat differently. This does not mean that one expression of the elements of a particular tort is inherently more correct than another; however, it can be important to check the jurisdiction and level of the court to assess the persuasiveness of a particular statement of the law.
Though these pages seek to present elements commonly espoused by courts, particularly by courts of appeal, you may well, in your reading and research, encounter other iterations of the elements of a particular tort.
Simplified court hierarchies
Canada |
England & Wales |
|---|---|
|
|
- ↑ 1.0 1.1 Beswick, Samuel (2025). "The Cause of Action in Ahluwalia v. Ahluwalia". Advocates' Quarterly.
- ↑ Center for Innovation in Legal Education (30 July 2014). "Episode 1.1: What is Torts? And what Torts is not". YouTube.
- ↑ "Land and Property in Canada's Political Economy". Open Source Law.
- ↑ Department of Justice Canada, "Civil and Criminal Cases" in Canada's System of Justice (2015), https://www.justice.gc.ca/eng/csj-sjc/just/08.html
- ↑ Perrin, Benjamin; Milward, David; Lawrence, Michelle; McCallum, Myrna, eds. (2023). Criminal Law: Canadian Law, Indigenous Laws & Critical Perspectives, 2023 CanLIIDocs 316. Ottawa: Canadian Legal Information Institute.
- ↑ Kislowicz, Howard; Lazare, Jodi; Danay, Robert, eds. (2022). The Canadian Constitutional Law Open Access Casebook, 2022 CanLIIDocs 1392. Canadian Legal Information Institute.
- ↑ Elmardy v. Toronto Police Services Board, 2017 ONSC 2074.
- ↑ Donahue, Charles Jr (2017). "The Modern Laws of Both Tort and Contract: Fourteenth Century Beginnings Keynotes, 2017 CanLIIDocs 388". Manitoba Law Journal. 40 (1): 9–12, 17, 25–26 (§1.3.1).
- ↑ Bell v Lever Brothers Ltd [1931] 1 K.B. 557 (CA), 582–583
- ↑ Law Reform Commission of British Columbia (November 1992). "Report on Wrongful Interference with Goods". LRC. 127: 32–34 (§1.3.2).
- ↑ Letang v. Cooper, [1964] EWCA Civ 5 (BAILII) (§1.3.3).
- ↑ Letang v. Cooper, [1964] EWCA Civ 5 (BAILII) (§1.3.3) at para 26.
- ↑ Markevich v. Canada, 2003 SCC 9 at para. 27.