Law must not be made indiscriminately, it must be enforced impartially, and interpreted with divinity."

Tort law

A Tort is generally defined as a wrong that occurs between or among parties. The person or corporation (as a legal entity) that allegedly commits a tort against another person or corporation is called a Tortfeasor.

A tort is not a crime, because it is not a public wrong and is not committed against the State or the Crown. A tort is a private, civil wrong.

A tort is not a contractual wrong, because it is not based on a contractual agreement. A tort is, therefore, a civil wrong other than a breach of contract for which one can seek relief in the court of law. 

Negligence and the concept of “duty of care” in circumstances where there is not a contract first appeared in Donoghue v Stevenson, [1932], AC 562 (HL). Is the most common tort; a mistake which may be ensured. 

Tort law – individuals’ responsibility for pursuing remedies for wrongs between them

Concerned with compensation 

Unintentional wrongs (example, negligence) and intentional wrongs 

Civil liability 

Plaintiff decides whether to sue or settle

Contract and tort law is rooted in the common law

Tort Principles in Statute Law 

Tort principles may be codified into statutes where: 

Government chooses to regulate an activity

Example: driving on public roads 

The common law rules that regulate an area of the tort law require systematic updates or reconciliation 

Example: law relating to the liability of the occupiers of property

Tort: a wrong that occurs between two or more parties 

Tortfeasor: the person, persons or company alleged to have committed a wrong against another person, persons, or company

General Elements (components of a tort)

Duty

In order to have a tort action, the person who committed a “wrong” must owe another party a duty. A duty of care is the obligation to use reasonable care to avoid hard. The standard required to do so is that of a reasonable person. 

Breach of Standard of Care (breach of duty): 

The failure to use reasonable care. A tortfeasor breaches his or her duty owed to another when his or her actions fall short of a standard of care.

Causation of Harm: 

Two types, in-fact (but for test) and in-law, the latter is called proximate cause, which is the legal responsibility to bring a tortuous case. The breach of duty must be the “cause” of the harm suffered. 

Harm Suffered

Generally, though not always, the plaintiff must prove compensable harm. The actual hard or loss that results from failure to use reasonable care.

Tortfeasor’s Intent 

Covers a range of levels of intent, including:

Willful blindness 

Recklessness 

Carelessness 

Accident

What determines the type of tort is the intention involved in the ensuing damage or wrong. There is no wrong until there is harm or loss. The intention that leads to a tort could be wilful blindness (knowledge, deliberately) or transferred and this will be intentional tort; could be reckless, carelessness or a mistake or statutory and this will lead to negligence and the special liability torts) 

The Major Categories 

Intentional Torts (harm with intent or knowing act would result in certain injuries to a party but choose to engage in it anyway or wilful blindness) 

Transferred Intent

Negligence 

Vicarious, Strict, and Absolute Liability [LIABILITY TORTS] – Special torts (occupiers’ liability; professional malpractice; product liability; not social liability, see Childs v Desormeaux, 2006 SCC 18). Strict liability = engaging in inherently dangerous activities, no need to prove intent or negligence e.g. in product liability; 

Torts of transferred intent occur where the defendant’s intentional act was directed at one party but harmed a different party.

Where defendant intended to commit an act, it does not matter that the victim was the specific party the defendant intended to harm.

Negligence is a tort based on careless conduct that creates a reasonably foreseeable risk of harm when a duty of care is owed to another and reasonable care is not used, resulting in damage or injury to another. The injury was reasonably foreseeable.

The heart of tort law; most personal injury and property damage cases

Vicarious liability: liability of a principal for the negligent or tortious acts of the principal’s agent done within the scope of the agent’s authority or employment

Strict liability: liability that is imposed even though no negligence or intentional tort occurred

Absolute liability: liability that is imposed automatically (usually under a statute) when certain conditions are met, without reference to negligence or intent

• Parties: Plaintiff v. Defendant 
• Pleadings: Plaintiff’s Claim v. Defence/Counterclaim
• Pleadings: Filing v. Service
• Monetary Jurisdiction - $35    

Settlement Conference:

• To resolve or narrow the issues in the action
• To expedite the disposition of the action
• To encourage settlement of the action
• To assist the parties in effective preparation for trial
• To provide full disclosure of relevant facts and evidence
• If not settled, trial 
• Who should attend? Parties, with or without their representatives
• Can Settlement Conference Deputy Judge/Judge/referee settle the case? 
• If not settled, setting for trial: who? 

Trial Process: 

• Arriving at Court in good time
• Court Clerk and Court Order
• Authority to Represent: Lawyers; agents, law students
• Trial/ Hearing: last step in the Litigation Process    

Structure of a Trial/Hearing: 

• Opening
• Presentation of Evidence 

o Direct Examination/Examination-in-Chief o Cross Examination

o Re-Examination/Reply

• Closing Arguments
• Judgment/Endorsement 

STEPS IN LITIGATION OF ADMINISTRATIVE TRIBUNAL

•  Administrative Tribunal: Quasi-judicial body
• Other Tribunals: Social Benefits Tribunal; Assessment Review Board; Ontario Municipal Board, Human Rights Tribunal of Ontario, etc.
• Parties: Applicant v. Respondent 

 LANDLORD AND TENANT BOARD HEARING 

• Governing Legislation: Residential Tenancies Act (Ontario) 
• Member or Adjudicator (“Mr. or Madam _______) 
• Clerks v. Signing In
• Morning or Afternoon Hearing
• Adjudicator Intro and Reference by Residences
• Who can represent at the LTB Hearing?  The Hearing Process
• Applicant First/Swearing in of witnesses
• Presentation of Evidence 

o Direct Examination 

o Cross Examination 

o (Re-examination)

• Adjudicator’s Examination
• Respondent Second/Swearing in of witnesses
• Presentation of Evidence 

o Direct Examination 

o Cross Examination 

o (Re-examination) 

• Adjudicator’s Examination 
• Closing Submissions
• Order 

STEPS IN LITIGATION OF ONTARIO PROVINCIAL OFFENCES COURT 

• Trial Process
• Parties: Crown v. Defendant
• Procedural Legislation: Provincial Offences Act (POA)
• Substantive Legislation: Trespass to Property Act, Highway Traffic Act, etc. 
• Notice of Intention to Appear/Setting for Trial 
• Offence Notice v. Summons/Information
• Classes of Liability: Strict, Absolute, Mens rea
• Trial/Verdict  Participants/Roles 
• Justice of the Peace (“Your Worship”) 
• Clerks v. Prosecutors
• Four Tier System: 9:00AM; 10:30AM; 1:30PM and 3:00PM
• Plea Bargain  Trial Process
• The Arraignment: Plea of Not-Guilty
• Crown Case: Swearing in of Witnesses
• Presentation of Evidence 

o Direct Examination 

o Cross Examination 

o Re-examination 

• Justice of the Peace’s Examination
• Defendant’s Case: Swearing in of Witnesses
• Presentation of Evidence

o Direct Examination 

o Cross Examination 

o Re-examination

• Closing Arguments or Submissions
• Acquittal v. Conviction 

 Both Direct-Examination and Cross-Examination are important and should be given equal weight 

 Direct-Examination can be just as dramatic as Cross-Examination – depends on the nature of the case, the personality of counsel/agent and the result desired 

 Make a strong impression on the judge/adjudicator through both the Direct- and the Cross- 

 Know that judges/adjudicators form their own impression of whether a witness is lying earlier in the case; so aim to elicit the truth through your witness 

 The general rule in Direct is that you are not supposed to lead your witness. “Leading a witness is suggesting the answer to the witness.”  

 The adversarial system does not permit for leading  Leading gives your evidence little weight 

 Exception, you may lead on: non-contentious matters such as a person’s age, background, education, family, work history, and etc. 

 In Direct, the court needs to hear your client explain or expand the case 

 Professor Wigmore called Cross-Examination, “The greatest legal engine for the discovery of truth.”  

 Note that most witnesses want to tell the truth in court but they may be hampered by memory, viewpoints, and etc. 

 Use Cross to elicit testimony that is favourable to your client’s case 

 While you may not know what questions will be asked in Direct, be prepared and anticipate what may be asked – be versatile and able to deal with every different situation that may arise during a trial 

 Testimony’s will be compared, so ensure that your witnesses’ testimonies are consistent 

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