Tort claims: a guide for litigants and lawyers

A tort claim sounds simple enough: someone wrongs you, you sue, you recover. But in Canadian law, getting from the incident to the courtroom without tripping over some procedural errors is harder than it looks. Miss one notice deadline or draft one vague pleading, and a technically solid case can collapse before it ever gets heard.

In this article, we’ll touch on some of the procedural aspects that personal injury lawyers, including their clients whether plaintiff or defendant, must know of when filing a tort claim under federal and provincial laws.

What is a tort claim in Canadian law?

The word tort comes from the Latin word tortum, meaning “wrong” or “injustice.” In Canadian law, a tort claim is a civil legal action that allows a person who has been harmed to seek compensation from whoever caused that harm. It sits within civil law, which means its goal is to compensate the victim, not punish the wrongdoer.

This distinction matters. In a tort claim, the injured person (the plaintiff) sues the responsible party (the defendant) and must prove the case on a balance of probabilities that more likely than not that the defendant’s conduct caused the harm.

While the standard is lower than the criminal burden of proof, the procedural demands in civil tort claims are significant.

The four elements every tort claim must prove

For a negligence-based tort claim to succeed, four things must be established:

• duty of care: the defendant had a legal obligation to act reasonably toward the plaintiff; e.g., drivers owe this to other road users; property owners owe it to visitors; healthcare providers owe it to patients
• breach: the defendant failed to meet that standard, i.e., breached that duty of care, either through action or inaction
• causation: the breach directly caused the plaintiff’s injury; this uses the “but for” test: but for the defendant’s conduct, would the harm have occurred?
• damages: the plaintiff suffered actual, measurable harm, which can either fall under general or special damages

Without all four, there is no tort claim, even if the defendant behaved badly.

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Who must be notified first when filing a tort claim?

Before a personal injury tort claim reaches any court, the law may require the plaintiff to serve formal written notice on the defendant. It is not optional, and failing to take it on time can permanently end a claim that would otherwise have succeeded.

Suing a private individual: 120 days to notify

There’s a specific number of days under provincial laws as to when a tort claim must be filed against an individual.

For example, in motor vehicle accident tort claims in Ontario, the injured party must serve written notice of their intention to sue on the at-fault party within 120 days of the incident, under s. 258.3(1) of the province’s Insurance Act. However, the court may authorize a longer period on a motion.

If the defendant requests it after receiving the notice, the plaintiff must also:

• provide a statutory declaration describing the circumstances and nature of the claim, evidence of identity, and
• submit to an examination by a regulated health professional at the defendant’s expense, provided that request is made within 90 days of receiving the notice

What happens a written notice was not served

A plaintiff can still commence an action without meeting these requirements, but under s. 258.3(9) of the Insurance Act, the court will take that non-compliance into account when awarding costs.

Once a defendant who carries automobile insurance receives the notice, they must forward a copy to their insurer within seven days. The insurer then steps in to handle the defence, including retaining legal counsel.

Suing a municipality: 10 days to act

The days to file a tort claim when suing a municipality is also governed by provincial laws.

Still in Ontario, any person planning to sue a municipality must deliver written notice to the clerk of that municipality within 10 days of the incident. This is according to s. 44 of Ontario’s Municipal Act, and s. 42(6) of the City of Toronto Act.

This rule on serving a written notice covers:

• slip and falls on public sidewalks
• road defects
• municipal park accidents
• collisions involving municipal vehicles

Exception to the written notice rule

Courts interpret this requirement strictly. In Psaila v. Kapsalis, 2022 ONCA 37, the Ontario Court of Appeal upheld the summary dismissal of a claim against the City of Toronto where the plaintiff had failed to give timely notice.

Both statutes allow a court to excuse late notice if the plaintiff shows a reasonable excuse and that the municipality suffers no prejudice to its defence. However, as Psaila confirms, courts apply that exception narrowly.

Suing the Crown: 60 days before filing

Claims against the provincial Crown in Ontario are governed by the Crown Liability and Proceedings Act (CLPA). Under s. 18(1) of the CLPA, no damages proceeding against the Crown may be commenced unless:

• the claimant first serves notice on the Crown at least 60 days before filing, and
• with sufficient particulars to identify the occasion giving rise to the claim

Notice must be delivered by registered mail, courier, or personal service, and proof of the delivery date must be retained.

Miss this step, and the proceeding is a nullity from the moment it is brought. As shown in Corrigan v. Ontario, 2023 ONCA 39, a statement of claim against the Crown was struck out entirely because the plaintiff commenced the action without first serving the required 60-day notice.

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What happens when a tort claim pleadings fall short?

Once the notice requirements are satisfied, the next procedural test is the statement of claim itself.

For instance, under Rule 25.06 of Ontario’s Rules of Civil Procedure (RPC), a statement of claim must set out “a concise statement of the material facts on which the party relies,” but not the evidence by which those facts will be proved.

Getting this balance wrong is one of the most common and costly mistakes in personal injury litigation.

What material facts means in tort claims

Material facts are the who, what, where, when, and how of the alleged wrong. In other words, it is the specific conduct or omission constituting the breach of duty, the causal link to the injury, and the nature of the harm.

As such, vague language like “the defendant was negligent” is a legal conclusion, not a material fact, and it is not sufficient.

Example of material facts in a slip and fall

A well-drafted statement of claim for a slip and fall, for example, will not simply allege that a property was unsafe. Instead, it will specify the following:

• the precise date, time, and location of the fall
• the specific hazard
• what the defendant knew or ought to have known, and when
• what remedial steps were not taken
• how those omissions caused the specific injuries pleaded

How tort claim defendants can use deficient pleadings

Using Ontario’s laws as example, a deficient statement of claim opens the door to the following defences:

• motion to strike: under Rule 21 or Rule 25.11, on grounds that the claim discloses no reasonable cause of action or would embarrass a fair trial
• summary judgment motion: under Rule 20, where the court resolves the claim without a full trial because the pleading raises no genuine issue requiring one
• limits on damages at trial: heads of damage that are not properly pleaded, such as future care costs, loss of earning capacity, or Family Law Act s. 61 claims, may be excluded at trial regardless of the actual loss suffered

What can be actually recovered in a tort claim?

A successful tort claim can yield compensation across several categories, each covering a distinct dimension of the plaintiff’s loss. Which categories are available depends on the nature of the case and how thoroughly they were pleaded.

• non-pecuniary damages (pain and suffering): covers physical pain, emotional distress, and loss of enjoyment of life; this is subject to a national cap set by the Supreme Court; for Ontario motor vehicle cases, a legal threshold must be met and a statutory deductible applies
• income loss and loss of earning capacity: past lost wages during recovery, and future losses if the plaintiff cannot return to the same work or career trajectory, supported by medical, actuarial, and vocational evidence
• out-of-pocket and future care costs: medical treatment, physiotherapy, rehabilitation services, assistive devices, home modifications, and transportation to appointments, including past and future expenses
• Family Law Act claims: under s. 61 of Ontario’s Family Law Act, close relatives including spouses, children, parents, and siblings may claim for loss of care, guidance, and companionship

Tort claim: pushing a claim, or dismissing it entirely

A tort claim in Canada does not start the moment a lawyer files a statement of claim. It starts the moment of the incident, when limitation periods and notice windows begin ticking at the same time. All these runs in parallel, and none of them pause while a plaintiff recovers or decides whether to act.

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