Week 1: Tort Into Notes
The simplest way to describe law in the Canadian legal system is to call it a set of rules
that will, ultimately, be enforced by the state. The state has “power’, I suppose, at the
end of the barrel of a gun (until a better weapon comes along). A law is one rule, “the
law” is the entire body of state-enforced or legal rules.
In Canada, as a society, we acquiesce to the use of force. We delegate enforcement of
laws to persons empowered by the state. In a representative democracy, we, as voting
members, take a part in determining who has authority and what kind of authority they
But, to get back to law and stay away, a little bit, from politics, we are going to look
primarily at what is known as the common law. The common law is often described as
“judge-made” law. It’s called judge-made, because it is a set of principles that judges,
over time, have developed collectively, when they have decided particular cases.
The common law entails that body of legal principles that have evolved in the English
common law system, over the past 700 or so years. In England, judges were employed
by the king to resolve disputes between people, or sometimes between people and the
government. People would “plead” their cases before a judge, and the judge, as
representative of the king, (or queen), would then settle the dispute. But it is not enough
to say to Jones or Smith you win and you lose, a judge would also have to say why.
Most of us would expect there to be a reason a decision was made in a certain way. We
would also expect the decision not to be arbitrary and unfair.
So, we came to expect a “reason” for the decision. That is the first hurdle of seeing a
decision as “principled”, or with having a rational basis.
We can see that if there is a reason, the reason itself should be rational.
Let’s consider an example where most of us would intuitively agree on a reason, that
can be formulated as a law. If a person is attacked by another person, it is reasonable to
assume the victim would protect himself. So if the attacker was injured by the victim
repelling the attack, a case might be brought against the victim for compensation for
injury to the attacker. The principle of law that might apply here could be stated simply:
when a person is attacked and has reason to believe that he is in danger, he is allowed
to take whatever steps are reasonably necessary to repel that attack. If the steps are
reasonable, then regardless of the extent of injury to the original attacker, the victim will
not be held accountable for any injury he causes. So if Smith attacked Jones, and Jones
fought back and injured Smith, and Smith then sued Jones for compensation, Smith
would lose the case, based on the principle described above. Obviously there are many kinds of disputes, so there are many different principles. The
example I have used seems fairly obvious, but we can appreciate there are likely all
kinds of cases where the answers are not so obvious. As the answers become less
obvious, it becomes more difficult to predict that different judges will resolve cases using
the same principles.
You want reliable principles, because you don’t want to think the judge can decide a
case differently just because he doesn’t like you. We want the law to treat people pretty
much the same way every time, and to treat all people in the same way. We also don’t
want different judges to have different rules, because that makes the law arbitrary as
well. So, the rules of the legal system become important, to remove any appearance of
arbitrary or capricious decision-making by judges. The law is the rule, and we expect it
to be fair and constant. We need consistency. How did we get it?
I know that Oscar Wilde called consistency the hobgoblin of the small mind, and that
was very clever, but when it comes to the law, it is hard to see consistency as anything
but a virtue. So, centuries ago, judges talked amongst themselves, and decided that
they should follow the decisions that each other had made.
Over a bit more time, in the 13th century in fact, judges began recording their decisions
in writing and keeping the written account in a central location, so all judges would have
access to those decisions. This central reference resource made it easier for judges to
decide similar cases using similar principles. A body of principles started to evolve.
As the body of principles became “established” over time, the courts developed a
system of “case precedent”. The latin term for the system of case precedent is “stare
decisis”, meaning “the decision stands”. This system of common law and case
precedent means that when a judge decides a case where the facts are similar to a
case that has already been decided, that judge must decide the case in the same way.
The rule or principle of law from the previous similar case is “binding” on the later judge:
he or she must follow that decision.
This doesn’t mean the entire content of the decision is binding. When you read some of
these cases, you will see how long-winded judges can be. Often they have to explain
how they came up with a new principal of law while at the same time remained
consistent with the existing previous case law. So all the explaining doesn’t really form a
binding part of the decision. For the sake of convenience and clarity, the courts
developed categories to indicate what is binding and what is not.
The binding part: ratio decedendi
The only part of the decision that is “binding”, is the “reason for the decision”. This is
referred to by its latin name – the “ratio decedendi”.
In my example above where we formulated a legal principle, the ratio would be: when a
person is attacked and has reason to believe that he is in danger, he is allowed to take
whatever steps are reasonably necessary to repel that attack. If the steps are
reasonable, then regardless of the extent of injury to the original attacker, the victim will
not be held accountable for any injury he causes. The part that is not binding: obiter dicta
Every thing else in the decision is not binding, and is called “obiter dicta”, meaning,
“things said – by the way”.
It is not always easy to distinguish between the ratio of a decision and obiter dicta, and
sometimes it takes years for later courts to decide exactly what the ratio is. So don’t
think sorting out cases is only hard work for students.
The recorded, binding decisions now form the basis of the body of the common law.
This took place in England, and Canada was an English colony, legally pretty much until
1982. Until at least 1949, House of Lords decisions (the highest appeal court in
England), were binding in Canada. Even now when those decisions are not binding in
Canada, they still provide persuasive arguments that Canadian courts often rely on.
There are a number of other Common law jurisdictions in the world that include: the
United States of America; the United Kingdom; Australia; and New Zealand.
The common law is to be distinguished from “Statute” law. Statutes are written laws that
are enacted by the elected legislatures. Only government legislators have the power to
“enact” laws. The duty of the courts is to interpret and apply the common law, and to
interpret and apply statute law when it is before the court.
In addition, a court’s interpretation of a statute will also be binding on future decisions.
So, just to clarify, a court’s decision as to how a statute is to be interpreted and applied
also forms part of the common law.
Just to confuse you a bit more: decisions only bind the courts “below”. There is a
hierarchy of courts in Canada, and I will describe how this works in Ontario, to start with.
The first place where a court makes a decision is a “trial court”, also referred to a as a
court of original jurisdiction. This is where a judge or jury (judge and jury are also
referred to as triers of fact), hears the evidence, decides the facts and then applies the
A lot of the case excerpts in the materials are decisions of the various courts of appeal.
Case precedent or stare decisis is solely reliant on appeal decisions, so you need to
understand a little bit about appeal courts and decisions.
Appeal: when a party to a law suit disagrees with the decision of the court and can find
a mistake in law in that decision to support an appeal, the next level of court is the
Ontario Court of Appeal. I will describe the simplest scenario, because there are
different trial and appeal courts depending on the kind of case, we don’t need to know
that just yet.
You can only appeal on a point of law, because appeal courts don’t hear the evidence
of witnesses: it is presumed at law that the trial court “trier of fact” is in the best position
to make decisions about the credibility of witnesses. As an aside: this is a central feature of our court or adjudication model: it is presumed
that ordinary people, with no special training or expertise, are able to tell when
witnesses are telling the truth or lying. A jury of your “peers” has been recognized as the
proper way, over polygraph or “lie detectors”, to determine the truth or falsity of
evidence. This says a lot about our philosophical commitment to truth-telling, which I
would argue is tied to our intuitions about people as fundamentally moral. This concept
in itself invites discussion, I suggest you read the “Mountain People” by Colin Turnbull if
you want to shake up your world view a little.
So, the next level above the trial court, and I will call the trial court the Ontario Superior
Court of Justice, is the Ontario Court of Appeal. Decisions made at the Ontario Court of
Appeal are binding on the trial courts in Ontario only. The next level of appeal above the
Ontario Court of Appeal is the Supreme Court of Canada. Decisions made at the
Supreme Court of Canada bind the trial courts of every province, and the appeal courts
of every province.
Courts of appeal are made up of: 5 judges in provincial courts of appeal, and 9 judges in
the Supreme Court of Canada. Actually, there are many more judges in the Ontario
Court of Appeal than just five, but a maximum of 5 can sit on one case, and as few as 3
can sit in some cases. There are only 9 judges in total in the Supreme Court of Canada,
and every case does not necessarily require that they all sit in judgment. In very
important cases, all 9 judges will sit.
There must always be an odd number of judges in an appeal court, to ensure that a
majority decision will determine the outcome of the case. Even though the appellate
courts perform an important function when they generate legal principles, the main
function of the court is to resolve the dispute before it.
Courts of appeal generally follow their own decisions in later cases considering similar
facts, but they are not “bound” to do so, and occasionally do reverse themselves. A
reversal in a later case would not affect the previous cases that had already been
decided, even though the state of the law may change.
Majority: this is the decision of the court that determines the outcome of the case, and
obviously must be the opinion of a majority of judges sitting on the appeal. The ratio of
the majority decision is binding on lower courts.
Concurring: sometimes judges agree or “concur” with the result, but add their own
reasons because they feel they have some important reasons to contribute, or that they
would come to the same conclusion for different reasons. Again, it is the majority
decision that binds, but there may be persuasive arguments contained in a concurring
opinion that may help shape the law in later cases that consider this decision.
Dissent: Very often judges disagree with each other. The dissenting opinion usually
disagrees with both the reasons and the outcome of the majority decision. * Remember
this* the dissent is often found after the majority in the book/ course pack. The dissent
does not determine the outcome of the case. Q: Why bother
a) having a dissent or a concurring opinion, and
b) including these in the reading materials?
a) Judges have a serious job to do: they must consider all that is before them and
render a decision, whether or not everyone agrees with them today. The process is one
of reasoning, and that reasoning ought to be as accessible as possible. This allows the
full development of the common law as all ideas are considered and accepted or
rejected, and often reconsidered. Judges are doing their duty, and it is ensured that the
“debate” that produces common law principles is as robust as it can be.
b) You will understand the philosophy of law by understanding the content of the
rigorous debate that produces law. The discussion in many cases is itself the philosophy
of law, and this is especially true in the constitutional section of the course.
In this course we will be discussing 4 main areas of law:
1) Tort law
2) Contract law
3) Criminal law
4) Constitutional law Tort and contract law are characterized as “private” law.
Now that we know what law is: a set of rules that are going to be enforced by the state,
we need to define tort law.
Tort law is the private law of “actionable wrongs”.
The word “actionable” means something recognized at law as something you can sue
for. In the legal context, an action is a traditional word meaning law suit. A law suit can
be called an action, a person injured may have a “cause of action”, the title of the case
is called the “style of cause”. It tells us who the parties to the dispute are, and if it’s a
public or private case.
When we discuss an action we mean a civil action, or “private’ law suit. It is important to
distinguish between public and private law to understand what is meant by tort law.
Private law is the body of law that deals typically with the resolving of disputes between
private individuals. In Canada, a private law suit means the person injured must put the
case forward, or “bring the action”. A private action is funded by the parties to the
dispute, the litigants. A person in a private law suit or action must have a personal stake
in the suit in order to be involved. You can’t sue your neighbor’s contractor for injury to
your neighbor, that is your neighbor’s private action to bring.
Public law is the body of law where we say the state has an interest. Criminal law is a
good example of public law. A crime is an act that is considered to be an offence
against the state as well as the particular victim. Even if the victim does not want to
pursue the case, the state will intervene and prosecute the accused person. We often
hear people saying they do not want to “press charges”. But in Canada, this is not the
victim’s decision, this is the decision of the representative of the state, usually a crown
attorney. It may be that a crown attorney decides not to prosecute a case because of a
reluctant principle witness, but the decision to prosecute is solely the decision of the
state’s representative. The criminal case is not a case between victim and criminal. The
victim is a key witness, but the victim does not pursue the person accused of a crime.
The state prosecutes and the state pays for the investigation and prosecution.
This distinction between public and private is important to understanding what tort law
If tort law is the law of privately actionable wrongs, we can contrast this with criminal law
There can be concurrent liability in both Tort and Criminal law. Just because a person
has been charged criminally doesn’t mean they can’t also be sued civilly. And just
because a person has been sued doesn’t mean he or she can’t be charged criminally.
The public and the private are separate, but related. OJ Simpson case: an example
O.J. Simpson, famous football and movie star, was charged with the murder of two
people, Nicole Brown Simpson and Ronald Goldman. O.J. was acquitted at trial, some
say, found “not guilty”, although I prefer to call it, “not found guilty”. Following his
acquittal, he was sued civilly for causing the wrongful death of the same persons he was
alleged to have murdered. Two years after his acquittal of on the murder charges, O.J.
Simpson was found civilly liable for wrongfully causing the deaths of Nicole Brown
Simpson and Ron Goldman. Some people wondered how he could be found not guilty,
and then two years later ostensibly found guilty of the same crime. To say this a bit
more accurately, one court process apparently said he “didn’t do it”, the other said he
Remember, in a criminal case, the state has the onus of proof. The standard of proof
imposed on the state in order to convict the accused is that it has to prove its case
“beyond a reasonable doubt”. In the O.J. Simpson murder trial, the state failed to prove
its case beyond a reasonable doubt. In other words, nothing was proven. So O.J. was
not found guilty. He was also not found innocent.
In a civil case, in this case an intentional tort case, the plaintiff (that’s the person “doing
the suing”) has the onus of proof, but need only prove its case on the standard called
the “balance of probabilities”. So, technically speaking, if it is 51% more likely O.J.
caused the death of Ms. Brown Simpson and Mr. Goldman, the plaintiff will win the
Most people thought he “did it”, but there was always that doubt. No criminal conviction.
If the evidence showed he probably did it, a civil action for wrongful death could find him
From this example we see the difference in standard of proof between civil and criminal