Types of Torts (Genus and Species)

Nominate and Innominate Torts

Innominate torts are torts without a name in common law, as opposed to nominate torts, which are torts that are so well recognized they have their own names. Like all torts, innominate torts combine the four necessary elements for a tort, viz.

    • the existence of a duty of care
    • breach of this duty
    • proof the defendant’s breach caused the damages (and that the cause isn’t too remote)
    • proof of damages

Two types of nominate torts are intentional and unintentional torts, which the following subsections list.

Intentional Torts

Intentional torts by genus and species

Genus Species
Trespass to land
  • Trespass to airspace
  • Trespass to subsoil
  • Ejectment
  • Interference with property
  • Interference with riparian rights
  • Civil extortion (aka blackmail)
  • Public nuisance
  • Private nuisance
  • Wrongful expropriation (see Expropriation Act)
Trespass to personal property
Trespass to person
  • Assault
  • Battery
  • Wrongful arrest
  • Wrongful imprisonment
  • Intentional infliction of mental distress
  • Intimidation
  • Malice
  • Malicious prosecution
  • Breach of privacy (aka intrusion upon seclusion; see Jones v. Tsige, 2012 ONCA 32)
  • Appropriation of personality
Deceit
  • Civil fraud
  • Fraudulent misrepresentation
  • Willful misrepresentation
  • Conspiracy
Economic interference
  • with contracts
  • with business relations
  • with employment relations
Defamation
  • Slander (verbal)
  • Libel (written)
  • Injurious falsehood (aka malicious falsehood or trade libel)
Abuse
  • of process (e.g., barratry and malicious prosecution)
  • of public office

Unintentional Torts (Negligence)

Unintentional torts by genus and species

Genus Species
Host liability
  • Social host (no financial liability)
  • Commercial host
Occupier’s liability
  • Slip and fall
  • Dangerous/unsafe premises
Misrepresentation
  • Negligent
  • Innocent
Professional negligence
  • Medical malpractice, e.g.,
    • Wrongful life/birth
    • Wrongful death
  • Solicitor’s negligence
Crown liability (s. 3 of the Crown Liability and Proceedings Act says “The Crown is liable for the damages for which, if it were a person, it would be liable”)
  • Negligent supervision
  • Negligent investigation
  • Occupier’s liability
  • Wrongful expropriation
  • Etc.
Waiver of tort (see Serhan Estate v. Johnson & Johnson, 2004 CanLII 1533 (ON SC))
Product liability

Debatable Torts

    • Breach of fiduciary duty (equity)
    • Breach of confidence (equity)
    • Breach of contractual duty of good faith (may be a breach of contract)
    • Breach of statute
    • Spoliation of evidence
    • Harassment (human rights)
    • Sexual Harassment (human rights)
    • Discrimination, e.g. economic discrimination (human rights)
    • Bad faith (equity)
Steps In a Civil Proceeding

1. Determining Jurisdiction

The first step is to decide in which court to start the action.

Which court to start the action

Plaintiff’s claim Court
$25,000 or less Small Claims Court (file a small claim online)
More than $25,000 Ontario Superior Court of Justice
$100,000 or less Ontario Superior Court of Justice under the Simplified Procedure rules (r. 76)
More than $100,000 Ontario Superior Court of Justice under the ordinary rules. Parties can agree to simplified procedure.

2. Statement of Claim

The plaintiff prepares a Statement of Claim, which describes the facts and legal reasons it’s entitled to compensation from the defendant.

The Statement of Claim must be issued before the limitation period expires. For most lawsuits, the claim must be issued within two years of the plaintiff learning about the harm caused by the defendant pursuant to s. 4 of the Limitations Act. However, certain claims have different limitation periods. 

If it’s not possible to issue a Statement of Claim within the limitation period, the plaintiff can issue a Notice of Action within the applicable limitation period for an extra 10 days to file a Statement of Claim.

The Statement of Claim is filed with the court and the plaintiff must then arrange to serve it on the defendant personally.

3. Statement of Defence and Counterclaim

The defendant must serve the plaintiff a Statement of Defence by the following deadlines:

Deadlines to deliver Statement of Defence (r. 18)

Defendant served Deadline to serve Statement of Defence
in Ontario within 20 days after service of the Statement of Claim
elsewhere in Canada or the USA within 40 days after service of the Statement of Claim
anywhere else within 60 days after service of the Statement of Claim

The Statement of Defence sets out the reasons why it shouldn’t have to compensate the plaintiff. If the defendant has a claim against the plaintiff (a “Counterclaim”), it is included in the same document as the Statement of Defence. The defendant may also include a Third Party claim against a third party.

If the defendant cannot serve the Statement of Defence within the specified time, it can serve the plaintiff a Notice of Intent to Defend, which gives it an extra 10 days to deliver a Statement of Defence (r. 18.02).

If the defendant does not file a Statement of Defence within the required time, the plaintiff can ask the court to note the defendant in default and then obtain default judgment against the defendant.

4. Reply and Defence to Counterclaim

Once the plaintiff receives the Statement of Defence, it can file a reply to the allegations made in the Statement of Defence. If the defendant included a Counterclaim, the plaintiff must serve the defendant with a Defence to the Counterclaim or else the Defendant can note the plaintiff in default and then obtain default judgment against the plaintiff for the damages described in the Counterclaim.

5. Discovery Plan

The parties must agree to a written discovery plan (r. 29.1.03(1)) within 60 days of delivery of the Reply and Defence to Counterclaim, if any. The discovery plan sets out

    • the scope of documentary discovery,
    • the names of the people who will be produced for examination for discovery and
    • the timelines for completing oral and documentary discovery.

The party conducting the examination must serve a Notice of Examination on any person being examined at least two days before the examination is to take place.

6. Affidavit of Documents (Documentary Discovery)

The plaintiff and the defendant must serve an Affidavit of Documents (r. 30.03(1)) on the other party within the timetable established in the Discovery Plan.

An Affidavit of Documents lists all of the documents that are or were in the party’s possession and that are relevant to any matter in issue in the litigation. For actions started under the Simplified Procedure rules (r. 76), the parties must also include a list of the names of people who have knowledge of the matters described in the Statement of Claim or Statement of Defence.

The “proportionality rule” is used to determine whether a document must be produced or a question answered on discovery. The court must consider, i.a, whether it’s reasonable within the context of

    • the importance of the action and the amount of damages being claimed and
    • if it will have an adverse effect on the administration of justice.

The obligation to disclose relevant documents is ongoing throughout the litigation process. If, after preparing an Affidavit of Documents, a party comes into possession of a document that is relevant to a matter in issue in the lawsuit or otherwise discovers that the previous Affidavit of Documents is inaccurate or incomplete, the party must prepare a Supplementary Affidavit of Documents.

The importance of including all relevant documents in an Affidavit of Documents cannot be overemphasized. If a document is not listed in the Affidavit, the party may be prevented from using the document at trial. Should a party fail to include in an Affidavit a document unfavourable to his case, the court may severely penalize that party by ordering costs against that party or even by dismissing the case.

7. Examinations for Discovery

The examination for discovery involves the lawyers for each party asking the other party questions relating to the issues in the litigation. The examination takes place before an examiner who transcribes the testimony and each party takes an oath to tell the truth.

Ordinarily the lawyer who conducted the examination will request a transcript of the examination. This transcript can then be used at trial to challenge the evidence of the other party and for other purposes. Admissions made by a party can be evidence against that party.

If the lawyer for the party being examined thinks that a question is inappropriate, the lawyer will refuse to permit the client to answer the question and the examination will likely proceed without the party having to answer the question at that time. If the lawyer who conducted the examination thinks that the question is proper and wants an answer to it, the lawyer can bring a motion to the court and the court can order the party to answer the question that was asked.

A party can conduct examinations for up to seven hours (r. 35.05.1). If additional time is required, it must obtain leave of the court or the consent of the other parties.

In actions started under the Simplified Procedure rules (r. 76), examinations for discovery can only take up to two hours (r. 76.04(2)).

Prior to an examination for discovery, we’ll explain to you

    • the process,
    • what is expected of you and
    • its role at the examination.

8. Answering Undertakings and Motions to Compel Answers

During an examination for discovery, sometimes the person being examined does not have the information needed to answer a question right away or does not have a document that is requested. If that is the case, the person being examined can agree to provide the answer to the question, or the relevant document, after the examination is completed (this is called an “undertaking”).

If the person being examined does not provide the answer to the undertaking within a reasonable period, the lawyer for the other party can bring a motion to a judge asking for an order requiring the other party to provide the necessary information. If such an order is made, the party who failed to provide the information in a reasonable time can be ordered to pay the costs of the other side for having to bring a motion to compel an answer to the undertaking.

Your lawyer will advise you as to whether or not a requested undertaking is reasonable and, if it is, will also ensure that undertakings are fulfilled properly.

9. Motions

Throughout the civil litigation process, either party may bring a motion to obtain a ruling from a judge on procedural or interim issues. For example, a party may bring a motion to exclude certain evidence from being used or a motion to delete certain parts of the other party’s pleadings.

10. Mandatory Mediation

For all actions started in Ottawa, Toronto or Essex County (Windsor), parties are required to participate in a mediation session within 180 days of the first Statement of Defence being served. The parties can, however, consent to extend this time limit. Sometimes the parties will choose to postpone mediation in order to first carry out examinations for discovery.

Before the mediation session takes place, each party files a mediation brief with the mediator and gives a copy to the other party. The mediation brief identifies the factual and legal issues that are in dispute, sets out the party’s position on each issue and includes copies of the most important documents in the case.

At the mediation session, the parties meet with a neutral mediator who tries to help them reach a mutually agreeable solution by pointing out the relevant strengths and weaknesses of each party’s position and their likelihood of success at trial. The mediator cannot force the parties to accept a settlement and the mediator does not have the power to impose a decision on the parties.

Discussions at the mediation session are confidential, as are any settlement offers that are made during mediation. If the parties do not reach a settlement, offers made by a party cannot be referred to during the rest of the litigation process until after a judgment is reached.

If mediation does not resolve the matters, the parties may request, or the court may order, a settlement conference.

We’ll explain to you

    • how the mediation proceedings will be conducted and
    • any rules you need to know.

11. Set the Matter Down for Trial and Pretrial Conference

After the discovery process has been completed, a trial record must be filed with the court. The trial record contains

    • the pleadings,
    • any jury notices, along with
    • the other documents required by r. 48.03.

In some areas, the Registrar places cases on the appropriate trial list, whereas in other locations trial dates are fixed by a judge in assignment court.

Within 120 days after the action is set down for trial, the court will give the parties notice that they must attend at a pre-trial conference (r. 50).

Shortly before the pre-trial conference, each party must file a brief containing many different items required by the judge presiding over the pre-trial conference.

The lawyers and the clients must attend the pre-trial conference. At the conference, the lawyers discuss their clients’ positions and the judge who is presiding over the conference tries to help them reach a settlement. The judge may tell the parties how he or she would decide the case if he or she was trying the case. The judge’s opinion on the case is not binding and the judge conducting the pre-trial conference cannot hear the actual trial if the parties decide to continue.

The judge presiding over the pre-trial conference can establish a timetable and fix a date for the trial and, if a date is set, will complete a pre-trial conference report.

Although the pre-trial conference judge cannot order the parties to settle, the parties should give serious consideration to the judge’s opinion on the merits of the case.

The parties should also be mindful of the costs consequences rule that applies to settlement offers. It may be advantageous to make a reasonable offer to settle.

12. Final Trial Preparation

As trial approaches, lawyers go through an intensive period of trial preparation that involves:

    • summonsing witnesses
    • obtaining updated records
    • serving Requests to Admit, Notices of Intent and Offers to Settle
    • reviewing the evidence in the case
    • interviewing witnesses and preparing them for trial
    • drafting pre-trial motions
    • preparing opening and closing statements
    • reviewing expert reports and preparing questions for experts

In many instances, proper trial preparation takes 100 hours or more, for instance, for a personal injury case involving injuries and lost income.

13. Trial

The parties can decide to proceed with a trial if a settlement is not reached. Often, the parties will decide to settle the action before it goes to trial because the legal fees involved are quite high and there is always a risk that the party could lose at trial. Also, with the costs consequences of settlement offers, parties may be concerned that they may be liable for paying the other party’s costs if they lose. According to the Department of Justice, less than 2% of civil cases make it to trial. In most civil trials, the trial process is as follows:

    • any pre-trial motions
    • opening statements (although in certain cases the defendant will wait until the close of the plaintiff’s case)
    • plaintiff presents its case through witnesses and exhibits (in some cases expert evidence may be required)
    • defendant presents it case, if any
    • closing statements are given, along with any reply, where permitted
    • in a case involving a jury, the judge reads the jury instructions
    • the jury returns a verdict or a mistrial is declared
    • the judge addresses any motions made post verdict

For actions started under the Simplified Procedure rules, a party may request a summary trial (r. 76.09(1)). Summary trials have strict time limitations on presentation of evidence. The parties present their evidence by affidavit and then the person who signed the affidavit may be cross-examined by the other party’s lawyer for a specified period of time. In a summary trial, a party’s oral argument is restricted as well. At the end of the summary trial, the judge issues his or her decision.

In a jury trial, the judge will read something similar to the following opening and closing remarks to the jury, explaining to them the process and their role:

14. Appeal

If a party feels that the verdict is incorrect in law, against the weight of the evidence or otherwise incorrect, they may have the opportunity to appeal. However, civil appeals are only granted around 25% of the time, meaning that in most cases the judgement of the trial court is final.

Steps to Schedule and File a Civil Motion

Steps to Schedule and File a Civil Motion

Step 1

If applicable (e.g., in Toronto), determine if a master or judge will hear your motion. Check the Rules of Civil Procedure.

Step 2 Call the Civil Office of the Superior Court for potential motion dates. Ask if any specific steps need to be taken or forms submitted to schedule your motion for hearing.
Step 3

Discuss available motion dates with the opposing parties and select one.

Step 4

If applicable (e.g., in Toronto and Newmarket), submit the area-specific motion requisition form to reserve the motion date. This is typically done by email or fax.

Step 5

Prepare your Notice of Motion with all attachments, including an Affidavit, and if necessary have it bound. Make sure you have a copy for the Court, a copy for each party and a copy for your file.

Step 6

Serve your Notice of Motion on all opposing parties (or their counsel, if represented).

Step 7

Prepare an Affidavit of Service for your Notice of Motion to prove you served your Notice of Motion on the other parties.

Step 8

Discuss with the opposing parties (or their counsel) if they agree with some, all or none of the relief requested in the Notice of Motion.

Step 9

File with the court within 10 days of having scheduled your motion:

Step 10

Email the Confirmation of Motion to the Court at least 4 business days prior to the hearing date.

Step 11

Call the court to check if the motion has been properly scheduled and is going forward.

Superior Court Filing Fees in Civil Actions (Current as of April 2, 2019)

Superior Court Filing Fees in Civil Actions

Superior Court filing fees in civil actions, payable to the Ontario Minister of Finance, are set out in the Superior Court of Justice and Court of Appeal – Fees regulation under the Administration of Justice Act.

Superior Court filing fees in civil actions

Court filing Amount ($)
Statement of Claim 229
Notice of Application 229
Notice of Intent to Defend  183
Statement of Defence  183
Statement of Defence and Counterclaim ($229 if adding party)  229
A third party claim  229
Notice of Motion  320
Trial Record  810
Issuance of a Summons  31
Consent Order Dismissing Action  320

Superior Court Filing Fees in Small Claims Actions

Superior Court filing fees in small claims actions, payable to the Ontario Minister of Finance, are set out in the Small Claims Court – Fees and Allowances regulation under the Administration of Justice Act.

Superior Court filing fees in small claims actions

Court filing Amount ($)
Plaintiff’s Claim – Infrequent Claimant 102
Filing a Defence 73
Defendant’s Claim 102
Notice of Motion 120
Issuance of a Summons 31
What to do After a Car Accident

1. Stay Where You Are

Stay at the scene of the accident or you may be criminally charged! You don’t want to pay legal fees for a criminal defence or the much higher insurance rate that will result.

2. Safety Check

Turn off the car and put on your hazard lights. Check to see if there’s any danger or anyone’s injured.

3. Call 911

Call 911 and follow instructions.

4. Dos and Don'ts

Do Don’t

Write down:

  • license plates of all vehicles involved
  • names and contact numbers of drivers and passengers
  • witnesses and their license plate numbers if they were driving (witnesses often don’t stick around long enough to give statements to police)

Take lots of pictures (if in doubt, take a picture) of:

  • vehicles involved in the collision
  • damage to those vehicles
  • their license plates
  • people involved, including witnesses
  • any visible injuries
  • any damage to other property
  • the condition of the road

Save these pictures on at least 2 computers or devices or in the cloud.

  • Admit fault
  • Discuss the cause of the accident
  • Assume responsibility for the accident
  • Say “I’m sorry”
  • Sign statements regarding fault
  • Promise to pay for damages
  • Accept payment from the other driver to avoid insurance. (If you’re not at fault, the accident won’t affect your driving record, although you’ll still be responsible for any deductible.)

5. Statement to Police Officer

When police arrive, you must provide them with a truthful statement concerning the accident pursuant to s. 199 of the Highway Traffic Act,

First ask the officer if you’re being investigated criminally. If so, you should invoke your rights against self-crimination and to remain silent and speak to a criminal defence lawyer before making a statement.

If the officer insists on a statement pursuant to the Highway Traffic Act, give the statement but say out loud that it’s only to fulfill the requirement of the Highway Traffic Act. Write this on any statement to police that you sign. Keep a copy of the police report, as you’ll need it later.

6. Statement to Insurer

You must report the accident to your insurer. Don’t:

    • make any definitive statement about your health to your insurer (e.g., “I’m fine”),
    • sign waivers
    • accept an early cash settlement offer in exchange for signing a Release

An insurer may use these early statements to set reserves and later to deny coverage.

If you’re not feeling 100% after a few days, see your doctor. Make sure you get the medical treatment you need to return to the physical condition you were in before the accident. Make sure you get your doctor to prescribe things like physiotherapy, chiropractic care or massage therapy, rather than just getting these yourself, as this may affect whether your insurer reimburses these claims.

7. Body Work

Your local dealer or insurer can recommend a reputable shop for body work. Have the shop agree in writing to provide you with pictures of all the damage to your vehicle, including underneath it.

8. Accident/No-Fault Benefits

In Ontario, you can get Accident Benefits coverage for care for your injuries regardless if you’re at fault. Once you notify your insurer that you were involved in a car accident, it will send you forms to fill so you can apply for statutory accident benefits (see Statutory Accident Benefits Schedule). Common forms include the ones listed in the table below, although your insurer may request that you complete other forms as well.

Common forms to apply for statutory accident benefits

Forms Filled by Information collected
OCF-1 Application for Accident Benefits Injured person

Personal information, details about the collision, medical treatment providers and details about any injuries sustained.

OCF-5 Permission to Disclose Health Information Injured person Authorizes the injured person’s healthcare providers to release medical records and other information to the car insurer.
OCF-2 Employer’s Confirmation Form Employer(s) over the past 52 weeks Injured person’s income, work benefits, work duties and length of employment.
OCF-3 Disability Certificate Treatment provider

Injured person’s injuries, any diagnoses, their ability to work, their ability to carry on a normal life, their ability to attend school and the anticipated duration of the injured person’s disability and limitations.

OCF-18 Treatment and Assessment Plan Treatment provider

Information about the treatment plan. The insurer may deny, approve or partially approve it to the extent it is “reasonable and necessary.”

S. 18(1) of the Statutory Accident Benefits Schedule sets a limit of $3,500 for no-fault coverage. However, there are ways you can get extra coverage under s. 18(2) by obtaining a prescription from your family doctor (to whom the legal system defers). 

    • Discuss your treatment plan with your family doctor and ask it to prescribe it
    • If your symptoms persist, ask your family doctor if a referral to a specialist, such as a neurologist, physiatrist or orthopaedic surgeon is appropriate
    • If you’re feeling pain and can’t stop thinking about the accident or have developed a fear of driving or being a passenger, ask your doctor to prescribe psychological counselling

You may thus obtain further treatment, such as chiropractic care, acupuncture, massage therapy, etc.