Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Any time when someone goes to court and commences a civil action there is some sort of unfairness wrong or harm that underlies that court action.  There is some unfairness for which that person is seeking a remedy from the court against certain other parties.  How does an unfairness or wrong translate into a court action in Ontario?—that is something that we’ll talk about today so you can have a broader understanding of how any wrongdoing can turn into a court action.

We begin with our usual disclaimer that this lecture is only for educational purposes and should not be construed as legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral to a lawyer or paralegal.

1st thing that you want to keep in mind is that not every wrong is actionable; not for every unfairness that you may face are you able to go to court—that is not possible.

Let me explain that concept by way of an example.  Imagine a scenario where a parent promises a child that if you get straight A’s in your exams I’ll buy you an XBox.  The child agrees to it and the child gets straight A’s.  Does that become a legally binding contract? Under the principles of a legally binding contract there has to be an offer and you’re making that offer that if you get straight A’s; there has to be an acceptance and the other party (the child) says yes I will get straight A’s.  Then the promise is that if you get straight A’s you will get an XBox.  That’s the promise—there is an offer; there’s a consideration and there is an acceptance on part of both parties.

On general principles of contract law this will be considered a contract but there is that particular promise in this situation: does that become a contract that is enforceable in courts (in our Ontario Courts or in Canadian courts)?  The answer is no.

Let me give you another example.  In this example, a similar situation, but now the parent is required to provide the child with the necessities of life and that may be something that may be actionable.  Society at large may take legal action against a parent who is not or who is failing to provide necessities of life to a child. What does this example or the 2 examples indicate? What it tells you is that boundaries of law are determined by society.  We as a society decide what kind of issues, what kind of matters will form part of the domain of law and which kind of issues will not form part of the domain of law.  We as a society (in a democratic society) decide this and whatever we agree to—even the criminal code. That’s a decision of our society to say what kind of acts will be considered criminal in our society and will be punishable by criminal courts. 

Similarly, there are social wrongs or other similar wrongs that we as a society believe that they should be actionable in our civil courts and that’s what we have decided and that’s actionable.  Not every single wrong that we face in our lives is actionable—for which we  go to court.  It’s a simple principle that we all understand.  It is worth repeating so that we have clarity on how any unfairness translates into an actionable wrong and when we say actionable wrong, we mean a wrong that can be taken to court.

How does an unfairness of any kind turn into an actionable wrong for our court system?  There are generally 3 ways. 1st one is that there is a breach of a statutory obligation.  There is some obligation on part of somebody to do something or not to do something under a specific statute in Canada either in Ontario or other provincial statutes or a federal statute.  That person (that party) has failed to abide by the obligations under the statute which gives rise to your right to take the party to court as long as the statute provides for that.

The 2nd common way to make an unfairness to an actionable wrong is a breach of contract.  We all kind of understand this concept that if there is a contract between parties and one party fails to perform the duties of the contract, the other party can take legal action against the first party.

The 3rd way you can take someone to court is under tort and I will explain the concept of tort further in the next few slides. Let’s take each of these examples.

1^st  We know that statutes are created by legislators; even the parliament enacts statutes; we know from our knowledge of how our society works that our parliamentarians / legislators sit down and decide on an important issue. They create a Bill and then the bill becomes some sort of statute in our province or in Canada.

One of the places where you can find all Canadian statutes is called Canlii. This is a website which is nonprofit and you can access all of Canadian statutes from this website: canlii.org. That’s the website.  If you go to this website, for example, if you want to look at all of the Canadian federal statutes you can go here and you see that statutes and regulations are listed here.  You can access the statues alphabetically.  Here you can see the many federal statutes from Access to Information Act to Authority of the Federal District Commission to Have Acquired Certain Land—all kinds of issues, Anti Terrorism Act, Apprentice Loans Act—I’ve never before heard of that Act.  All kinds of issues are dealt with in the statutes and you can find that information free on canlii or other websites that are available in Canada.  

Underneath statutes are regulations—regulations give a bit more flexibility in terms of how a particular statute needs to be interpreted and how it needs to be implemented. Regulations are bit more broader and a bit more practical.  Statute provides an overall direction but combine these to provide for the obligations within that statute. 

A common example of a statute which gives rise to certain duties is the Human Rights Code.  Many of you may not know but there is no civil right to sue someone for discrimination.  The right arises from a specific statute in Ontario—it’s the Human Rights Code and in federal jurisdiction is Canada Canadian Human Rights Act.  That particular statute provides that discrimination is prohibited on certain grounds.  It lays out specific grounds because discrimination is a very broad term.  It could happen in so many parts of life.  There are specific grounds for example: race, religion, sexual orientation, disability and whatnot.  There are specific grounds laid out so you can only sue someone for discrimination on the basis of those grounds. 

Then there are certain circumstances in which discrimination or certain relationships within which discrimination act can be brought forward.  Those are defined in the Act in Ontario Human Rights Code.  Then the Act also indicates that if it’s a discrimination matter then you cannot really go to court but you have to go to the Human Rights Tribunal.  The power to commence an action arises from the specific legislation. That’s an example of where an unfairness—in this case discrimination becomes an actionable wrong through the power that is vested through this particular statute.  That’s an example of how you can approach the courts or tribunals through a breach of duty under statute.

2^nd is contract.  We know generally that contract between parties provides the duties that each party must perform.  You have an obligation to perform the contract based on the terms of the contract.  The liability in terms of contracts arises from the breach of contract—one party fails to do what it is required to do under the contract, the other party can take legal action.

3^rd is tort—which is a fascinating area of law.  I find it extremely fascinating because it talks with a lot of social philosophical dimensions of how we find liability and legal action.  It’s a fascinating area.  What is not covered in contract may be covered in torts.

One of the things that you want to know is that tort duty is imposed by law / society.  It’s not your choice.  It is not a situation where you are agreeing with another party to do something or not to do something.  This duty is automatically imposed by society and what does the tort do? The liability in tort arises from the cause—from the injury or harm that has been caused by one party.  It’s an injury based / harm based kind of liability that is imposed by society in general.  

Common example of that is motor vehicle accident.  You and I do not form specific contracts with other drivers on the road that we will drive carefully.  This duty has been imposed on us by society that when we’re driving on roads we have to be careful and not negligent in how we drive.  If we cause an accident and cause an injury or harm to someone else, then that person has the ability to take us to court based on the principles of tort.  It’s not a contractual principle but tort. 

Similarly, product liability is again a tortious act.  You buy a car.  The brakes were manufactured improperly and it causes you into an accident.  Then you have an actionable wrong against the manufacturer of that particular vehicle. These and there are many more examples.  Professional liability is another example where the negligence of your physician or your accountant or your lawyer can give rise to an actionable wrong that you can take against that individual. 

Tort is a very broad category but generally speaking these are some of the examples that I can give you.  In our ensuing lectures I’ll actually go over all kinds of different torts and explain how those torts become actionable wrongs and what are the grounds to bring a court action for those torts.

Now contract and torts have some similarities—what are those? Both deal with a breach of duty. Whether duties are imposed by law or duties are imposed by agreement of parties but they’re both dealing with a breach of duty and both are providing certain damages once the judgment is made (the court awards certain damages to one party or another).

What are some of the differences? One difference is consent.  When a contract is entered between parties, and the parties knowingly and without coercion agree to something—it’s an agreement of the parties.  As I said, in tort there is no consent required from you or for me or from anyone else.  This is a duty imposed by law. This is not something that we sign into by choice.  We being members of society automatically accept our duty in tort.  

Similarly, with respect to damages—the concept of awarding damages in the contract law is, generally, to put the party that has been wronged in a position if the contract was not breached.  The court puts itself in a position where if there was no breach where would this party land at the end of contract and try to put their party into that position.

A common example could be that if the contract was performed properly you would have made $100,000.00 at the end of the contract. Then the court will put you in that position and say you’re entitled to $100,000.00.  That’s a very broad, simplistic example.  Putting the party in the position that it would have been in if the contract was performed.  

Torts is based on compensation for the harm or injury—whatever injury has occurred the court is trying to provide compensation for that specific harm or injury.  Underlying concepts of award of damages for contract and tort are different and so they will give rise to different amount of damages in each case. And one more thing you want to keep in mind is that punitive damages are generally not awarded in breach of contract.  They may be, but generally not.

Punitive damages are awarded in tort cases.  We have all heard these stories of cases in the US against McDonnell or some other large corporation where they have committed a tort and courts have awarded millions of dollars in punitive damages. That’s where you can imagine that in tortious cases punitive damages could be awarded.

What is it that you want to take away from this lecture?

It is that whatever kind of unfairness that you want to take into court has to fit into a specific cause of action or causes of action. You cannot just simply stand up in court and say, “This person does this thing unfair to me I want you to give me X remedy or X damages.  

You have to figure out that in your specific set of facts what is the cause of action.  Is it a tort of negligence; is it a breach of contract; is it a breach of a specific statute—that is what you have to figure out.  What is the cause of action that is going to allow the court to give you the remedy that you are seeking? This is where you go and seek legal advice from lawyers, who because of their experience and knowledge have a better understanding of different causes of action or different statutes.  They can channel your specific facts, i.e., the wrong that has been done to you into a specific cause of action that the court understands and the court can provide you the remedy.  That’s why this concept of understanding how any unfairness turns into a specific cause of action or an actionable wrong is important for someone who wants to understand the legal process in general are commands a court action in certain specific circumstances of that person’s case. 

Generally speaking, the liability or actionable wrong can arise because of a breach of statute, contract or tort or a combination of these factors.  And you can sue for that in a court of law. 

In our future lectures I will try to go dig deeper into these concepts we will talk about different kinds of torts which are fascinating and you’ll learn about different kinds of torts—negligence and intentional torts, about battery and assault, false imprisonment and debtinue and conversion all these very very interesting topics will cover those and but will explain to you in practical terms that what kind of set of facts will allow you to seek remedy under those specific talks.

Thank-you for watching this basic lecture that will hopefully help you understand how an unfairness turns into an actionable wrong in Ontario Courts and generally in the courts of Canada.