Thank you.

I'm a law professor at the University of Ottawa and a law professor on leave at Osgoode Hall law school. I belong to the Law Society of Ontario.

I specialize in the history of laws, the impact of laws on marginalized peoples, law and economics, and tort law. I've taught at the university level for 26 years. Teaching has also included updating the judiciary about trends in law and professional development sessions for the legal profession.

Today, I'm going to focus on the influence of tort law upon legislation. Why? It's because it is directly responsible for responding to harm. Tort law is also a subject that has allowed courts to respond to matters that are not addressed in legislation yet. It has its benefits and shortcomings for making society better. It is considered part of private law and includes topics like personal injury, intentional infliction of mental distress, intimidation and breach of fiduciary duty, such as to children or the increasing topic involving indigenous peoples.

For me, two observations surface about legislation regarding harm.

First, I think about how private law interacts with legislation. Historically, many topics in private law have come across a judge's bench because parties, and ultimately the judge, have concluded that society would support the recognition of a certain harm. The harm, however, may not be articulated yet in legislation and may seem novel. However, those topics are constructed on jurisprudence, so while the name of a tort might be new, the details of the tort are familiar and already supported.

Tort law has helped create tools that have been and are integrated into legislation. Like other topics in law, there is often what is called a dialogue. Events in society impact arguments in court. Those arguments in court are learned about by those who create and implement legislation, like all of you. In this dialogue, sometimes the legislation introduces the idea first, and views about the legislation will then be brought up by parties in the courtroom.

This idea that private law and legislation have an ongoing relationship is vital to also realizing that almost all tort litigation does not result in a trial decision. As a result, any litigating, negotiating and resolving happens at earlier stages of litigation. In fact, those earlier stages are organized by the courts and involve many parties, including judges, to evaluate the nature and scope of the claimed harm. When a tortious subject is not guided by legislation, figuring these subjects out takes time and space in the court system.

All of us know stories in which people have felt less heard due to the slowness of the court process. That slowness is arguably magnified when legislation does not exist to quickly determine one part or all parts of a problem. Private law has helped get some harms more recognized, but when the private law's focus on harm does not have legislative guidance, addressing examples of harm and preventing that harm can take time and arguably increase the number of times that said harm occurs.

My second observation is about when legislation is proposed. I see any legislation about online harm, particularly when it impacts groups we consider more vulnerable, capable of paralleling the benefits of private law, plus avoiding some of private law's limitations. Demanding that a party act responsibly, for example, is mirror-like to negligence law. The concept is also prevalent in many intentional torts, such as intentional infliction of mental distress. It might be a word we are now integrating, but the word's presence is already evident.

Moreover, we can learn how other countries have found that it's possible to integrate acting responsibly into a rights-based system like Canada's. I believe we have the underpinnings of acting responsibly already in Canadian law.

Legislation has also an effect of dissuasion that private law might not have. Legislation hopefully stops most intentional harm before it happens. Introducing such subjects by a legislation influenced by tort law, especially when subjects are urgent due to their own form and growth, creates a type of social and judicial efficiency that trends in private law often lack.

Thank you for including the duty of acting responsibly, so that courts and society will have more guidance about how to evaluate it. It is my view this duty makes legislation stronger and the need for lawsuits less likely.

Thank you for this opportunity. I look forward to our discussion.