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Legal liability

When harm from healthcare delivery occurs

The Canadian legal system

Woman holding scales of justice with map of Canada in backgroundGenerally speaking, citizens are governed by:
  • the law created by statute, either federally, provincially, or territorially, including the Civil Code in Québec
  • common law (except in Québec)
Legal actions in Canada generally fall into one of two categories:
  • criminal
  • civil

Criminal legal actions

  • Purpose: To secure a conviction and punishment for a crime.

Criminal actions involve the prosecution of an individual charged with committing an offence as defined by statute, usually the federal Criminal Code. Quasi-criminal offences are also set out in other federal statutes (for example, the Controlled Drugs and Substances Act) as well as in several provincial and territorial statutes.

In a criminal action, the accused:
  • will be found guilty if the charge is proven beyond a reasonable doubt
  • often has a right to trial by jury
  • if found guilty may be fined, imprisoned, or both

Civil legal actions

  • Purpose: To resolve disputes between two or more parties.
  • Uses the litigation process.
  • Often includes mediation.
Civil legal actions are conducted under the system of:
  • common law in all provinces and territories except Québec
  • civil law in Québec

Common law system in all provinces and territories except Québec

  • Developed by judgments rendered in legal actions across Canada that have proceeded through the courts.
  • Modern Canadian common law traces its historical origins to the United Kingdom.
  • Applicable legal principles are also set out in statutes and regulations.

In common law, a tort is a civil wrong for which a legal remedy exists. The wrong relates to harm or losses occurring to a person or their property because of deliberate action or carelessness of another, and forms the basis of the claim by the plaintiff in most civil legal claims. Breach of contract issues are separate from torts. The concept of a tort does not apply to Québec.

An absolute right to a jury is available to plaintiffs in a civil action only in Saskatchewan. Traditionally, civil actions in the other common law provinces and territories are heard by a judge alone, but in recent years there has been an increasing trend toward jury trials.

In a civil action, a defendant:
  • may be found liable if the essential elements of the claim are established on a balance of probability
  • if found liable must pay an amount of money awarded to the plaintiff in damages

See Negligence in common law.

Civil law in Québec

  • General legal principles are established by the Civil Code of Québec and other laws, and the interpretation of these statutes by judges.
  • The historical origins date back to the Roman Empire, and the modern form of the Civil Code was inspired by the French Napoleonic Code.
Like in the rest of Canada, a defendant in a civil action:
  • may be found liable if the essential elements of the claim are established on a balance of probability
  • if found liable must pay a specified sum of money (damages) awarded to the plaintiff

In Québec, judges decide the legal outcome of civil actions, as jury trials in civil actions are not available.

See Professional civil liability in Québec.