CHAPTER 1: CONTRACTS & TORTS, ESTABLISHING CONTEXT Emond Montgomery Publications 1

Chapter 1: Contracts & Torts Establishing Context Learning 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. Emond Montgomery Publications 2

Introduction Key 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 Emond Montgomery Publications 3

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 Emond Montgomery Publications 4

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 Emond Montgomery Publications 5

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 Emond Montgomery Publications 6

The Constitution and the Charter The 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: 1.Property and civil rights 2.Local commerce 3.Provincial justice, and 4.Matters of a private nature (includes contract and tort disputes) Emond Montgomery Publications 7

The Constitution and the Charter Application 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 Emond Montgomery Publications 8

Distinguishing Torts from Crimes Criminal 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 Emond Montgomery Publications 9

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 Emond Montgomery Publications 10

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 Emond Montgomery Publications 11

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 Emond Montgomery Publications 12

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 Emond Montgomery Publications 13

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 Emond Montgomery Publications 14

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 Emond Montgomery Publications 15