CH 2 Flashcards
What is litigation?
The system of resolving disputes in court.
Can an American consumer sue a Canadian corporation in Canadian court?
Yes
How can an adult who is suffering from mental incapacity sue?
Using a court-appointed representative.
How can children sue?
Represented by a parent or litigation gaurdian
Is a corporation or a company deemed a person in the eyes of the court?
Yes, they can sue and be sued.
Is a unincorporated organisations, (churches, clubs) classified as a person in the eyes of the court?
No, they cannot normally be sued or sue.
How do you sue an unincorporated organisation?
It is necessary to sue the individual members of the organization.
What is the exception for unincorporated organisations?
Unions
What is a class action?
A class action allows a single person, or a small group of people, to sue on behalf of a larger group of claimants.
What are the basic ideas from legislature dealing with class action? (requirments)
Common issues, representative plaintiff, notification, preferable procedure and certification.
In terms of common issues for class actions, does the claim have to be identical?
No, a court may set up a process to deal with special circumstances that affect some claimants but not others.
What does notification mean for class actions?
a representative plaintiff must also have a workable plan for notifying potential class members. Ex. newspaper, magazine
What are the questions that preferable procedures asks?
Will a class action become too complicated and whether there are enough similarities between the class members.
What is certification?
Certification represents the court’s decision to allow the various claims to be joined together and to proceed as a class action.
what are pleadings?
documents used to identify the issues and clarify the nature of a dispute.
What is a limitation period?
A period of time within which an action must be started.
What is the typical time for limitation period in Canada?
2 years
What is the effect of lapse?
The general rule in contract is that while the debt still exists, it is unenforceable. The money should still be paid, but the courts will not force the debtor to do so. In other circumstances the plaintiff’s rights may die along with the limitation period.
What is acknowledgement? How does it effect statute of limitation?
The limitation period may begin again however, if before the period has expired, the debtor gives written acknowledgement of the debt.
What happens after the pleadings have closed?
The parties will conduct examinations for discovery.
What is examination for discovery?
a process in which the parties ask each other questions to obtain information about their case. Ex. in a case involving a vehicle that exploded on impact the victim’s lawyer may ask the car manufacturer’s chief engineer about the company’s product safety studies.
What is an important function of discoveries?
By revealing the strengths and weaknesses of a claim, they may indicate which side is likely to lose if the case goes to trial. Discoveries therefore encourage settlement.
What is a settlement?
it occurs when the parties agree to resolve their dispute out of court.
What is a pre-trial conference?
a meeting that occurs between the parties and a judge. After the parties outline their positions, the judge may indicate which of them is likely to win if the case goes to trial.
What does the balance of probabilities mean?
That every important part of the claim must be probably true.
In criminal cases what is the standard of proof?
guilt beyond a reasonable doubt.
what are remedies in civil litigation?
compensatory damages, punitive damages, nominal damages, injunction, specific performance, rescission.
What are compensatory damages? And example?
Financially repair a loss Ex. accident caused medical expense and lost income.
What are punitive damages? And example?
Damages that exceed simple compensation and awarded to punish the defendant. Ex. Insurance company fraudulently alleged arson to avoid paying for fire damage.
What are nominal damages and what is an example?
They are used symbolically to recognise wrongful acts even if plaintiff suffered no loss and defendant received no gain. Ex. Trespasser walked across property without doing any damage.
What is an injunction and what is an example?
Compels fulfilment of an obligation. Property owner prohibited from causing nuisance by hosting loud concerts.
what is specific performance, and what is an example?
compels performance of a positive obligation. Property owner contractually agreed to sell a particular piece of land.
What is rescission? and what is an example?
Reverses or eliminates a transaction. Ex. Elderly couple tricked into selling their collection.
what is a judgement debtor?
A defendant who has been found liable and ordered to pay money to the plaintiff.
what is a garnishee order?
An order from the court that forces the debtor’s employer to pay part of that income directly to the successful plaintiff.
Who is the appellant?
the party who attacks the decision of the lower court.
who is the respondent?
The party who defends the decision.
what are costs?
the expenses that a party incurred during litigation.
what is a contingency fee agreement?
requires a client to pay its lawyer only if the lawsuit is successful.
what is alternative dispute resolution?
Is any process that allows the parties to resolve their dispute without going to court.
What are three major types of ADR?
negotiation, mediation, arbitration
