CHAPTER 1: CONTRACTS & TORTS, ESTABLISHING CONTEXT

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Chapter 1: Contracts & Torts Establishing ContextLearning Outcomes•Define “contract” and “tort” and explain the difference between the two.

•Summarize the basic history of contract law and tort law.

•Distinguish criminal law and civil law.

•Distinguish statute law and common law and explain the interplay between the two.

•List two statutes with roots in contract law.

•List two statutes with roots in tort law.

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IntroductionKey terms

• Contract: an agreement between two or more parties

• Tort: a wrong that occurs between two or more parties

• Common law: case law developed overtime and based on judicial precedent

• Statute law: laws passed by the government in the form of legislation

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Introduction (cont’d)• Canadian law is often characterized in two different

ways:

1. Common law vs. Statute law; and

2. Criminal law vs. Civil law

• Contract and tort law are the two major components of Canadian common law and are both civil law disciplines

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Historical Roots and Development• Early societies: legal problems resolved using self-help

remedies

• Growth of civilizations governments required to administer the law

• Contract law

• Older than tort law

• Development driven by commerce

• Tort law• Developed recently

• Development required a distinction between tort and criminal law

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Historical Roots and Development (cont’d)

• Modern Canadian legal system:

1. Common law

2. Statutes

3. Civil Code (in Quebec)

4. Constitution

• Contract and tort law doctrines are part of the common law and portions have also been codified in statutes

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The Constitution and the CharterThe Constitutional Context

• British North America Act, introduced in 1867

• Outlines the division of power between the federal and provincial/territorial governments in ss. 91 and 92

• Provincial/territorial governments regulate:

• Property and civil rights

• Local commerce

• Provincial justice, and

• Matters of a private nature (includes contract and tort disputes)

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The Constitution and the CharterApplication of the Charter

• Canadian Charter of Rights and Freedoms, introduced in 1982 as an addendum to the Constitution

• Purpose: to give constitutional status to essential human rights and freedoms

• Applies only to government legislation or action

• If the government contracts with a private party, it is bound by the rights and freedoms protected in the Charter

• If the government commits a tort, the action may be considered both a tortious act and unconstitutional

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Distinguishing Torts from CrimesCriminal law:

• Codified in the Criminal Code

• Involves the State’s responsibility for prosecuting individuals

• The decision to charge an individual is made by the police

• The decision to prosecute is made by the Crown

Tort law:• Involves individuals’ responsibility for pursuing remedies

between themselves

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Distinguishing Torts from Crimes (cont’d)• Overlap of criminal and tort law:

An intentional act harms another person or their property

• In such cases, a single action can lead to:

1. criminal prosecution and

2. civil action

• Example: O.J. Simpson

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Torts and Contract Concepts in Statute Law

• Contract and tort law: rooted in the common law

• Development of common law has led to the formation of more detailed and complex branches and sub-branches within tort law and contract law

• Intentional torts vs. the law of negligence

• Select sub-branches have been codified in statute form

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Torts and Contract Concepts in Statute Law (cont’d)

Interplay Between Common Law and Statutes

• Statutes are often created in response to developments in the common law

• Common law builds on and refines the interpretation of statutes

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Torts and Contract Concepts in Statute Law (cont’d)

Contract Principles in Statute Law

• Key terms and rules of contract interpretation have been codified into statute, and are “read in” to contracts

• Examples: provincial sale-of-goods acts; federal Interpretation Act

• Statute law is also used to regulate specific types of contracts

• Example: Residential Tenancies Act, 2006

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Torts and Contract Concepts in Statute Law (cont’d)

Tort Principles in Statute Law

• Tort concepts are sometimes codified into statute when:

1. The government wishes to regulate an activity that is the source of a tort claim

• Example: driving on public roads

2. The common-law rules of tort law require updating

• Example: occupier’s liability of property

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Torts and Contract Concepts in Statute Law (cont’d)Tort/Contract Hybrids in Statute Law

• In some contexts, contract and tort issues exist side by side

• Example: the employment contract and torts committed between employee and employer

• In these cases, statutes regulating the particular area often regulate both tort and contract issues

• Example: Canada Labour Code

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