Chapter 1 Fundamentals Flashcards
🔵Small Claims court are heard in the BC Supreme Court
🔵Supreme court can hear cases for claims of any amount
🔵Evidence is not reheard wt the BC Court of Appeal; only matters of law are considered
🔵Small Claims Court - < $35,000
🔵writ of execution is requested by the judgment creditor then is issued to the sheriff, then the sheriff can seize and sell enough of the debtors assets to pay the judgment.
🔵when a third person owes money to the judgment debtor, the plaintiff can obtain that money by means of a garnishing order. However, the plaintiff cannot obtain all of an employee’s wages. (70% of the wages are exempt from seizure)
🔵a judgment creditor can register a judgment in the land title office against the debtor’s title, but must apply to a COURT for a judicial sale.
Disclosure statement
Must be in form required by BCFSA. But it need not contain from a lawyer.
Canadian Real Estate Association
Authority to develop and amend relstor code
BCFSA
🔵May refuse to issue license to unqualified applicant under the Real Estate Services Act
🔵requires criminal record check as part of determining whether and applicant is of a “good reputation”
🔵One of it’s powers is to impose administrative penalties for those who contravened the Real Estate Services Act
Examination for discovery
may be a major factor in the settlement of a dispute. “Mini trial”
Representative licensee
key responsibility is to keep his managing broker informed of the business activities he performs on behalf of the brokerage and the duty to promptly respond to any inquiry addressed to him by his managing broker.
Court costs
🔸can be awarded to either party
🔸Meant to partially reimburse the legal expenses of the awarded party
🔸discourages people from bringing or defending weak cases
Financial Services tribunal
An appeal of bcfsa’s decision to discipline a licensee will be heard.
To appeal a decision, the party must send notice to them within 30 days of the date of the decision
Real estate errors and omissions indemnity plan
🔸to provide an affordable method of protecting licensees from financial loss as the results of a licensee’s errors or omissions will receive no compensation due to the licensee’s lack of funds
🔸Covers a liability limit $1M
🔸Has the right to settle claim without consent from the licensee
🔸does not provide coverage for penalties and fines
Real Estate Development Marketing Act
🔸Requires a developer to prepare a disclosure statement prior to selling lots in a subdivision.
🔸A bank acquiring a bankrupt developer’s rights would also be a “developer”
🔸certain transactions are exempted for full disclosures including where all unit in a development property are sold in a single transaction
Commencing a lawsuit in small claims court
The action in the jurisdiction where either the cause of action arose or the defendant resides
Public Law
🔸constitutional law
🔸Deals with the constitution and matters between private individuals and the state.
Private law
🔸trespass
🔸Breach of contract
Stare decicis
🔸former decisions are used as basis for later decisions
🔸The common law system has uniformity
🔸Decisions by the Supreme Court of Canada are accorded the most weight in our jurisprudence
When a judge “distinguishes” a case
🔸the judge decides that facts crucial to a former decision are not present in the case at hand, and does not follow the former decision.
Land Title Act - a body of law written and passed by the provincial government of BC (legislation)
specific performance - REMEDY that was developed by the courts of equity, not enacted via government statute
Equity of redemption - DOCTRINE
Bc Supreme Court is to the BC court if appeal
Common Law
🔹court-based; judge-made law
🔹derived from historical customes
🔹Uniformity of the law
Common Law
🔹stare decisis - let the former decision stand
Precedents
earlier cases that are followed
Statute Law
🔹federal gov’t - banking, bankrupcy, marriage & divorce, fisheries, copyrights, shipping, patents, criminal matters
🔹Provinical - anything private matter or local; civil rights; municipal institutions
Civil or Private Law
🔹relationships between individuals and has no direct concern to the state.
🔹Breach of contract ; marriage & divorce; tort
🔹Contracts; agency; tort
Public Law
🔹deals with the constitution; relationship between individuals and the state
🔹Tax law; constitutional law; criminal law
Administrative Tribunals
🔹less formal adjudicative bodies established to hear disputes in specific areas
🔹NOT part of the court system
🔹Can be challenged and reviewable by court
Civil resolution tribunal
🔹online tribunal tasked with resolving:
🔸Strata non-payment or non-enforcement of bylaws
🔸Motor vehicle injuries dispute
🔸Certain small claims < $5000 ; if > $5000, the money over $5000 cannot be claimed anywhere else
🔹Can only decide on disputes arising in BC
CRT 3 potential phases
Negotiation
Facilitation
Adjudication
January 1, 2019
strata decisions can no longer be appealed at the BC Supreme Court, but may ask Supreme Court for a judicial review.
A judicial review will only overturn the tribunal’s decision if found unreasonable
3 key advantages of CRT
🔹 online
🔹Effeciency
🔹Costs - lawyers not needed
🔸Disputes usually resolve withing 60days
🔸Fees involved total around $200
Courts of original jurisdiction
🔹small claims court -
Appellate courts - after a trial judge made his decision, either party may appeal to a higher court
Small claims court —> BC Supreme court
(but does not automatically always lead to a new trial)
🔸must first appear in front of a judge to argue that there are legal or factual errors in the trial judge’s orderq
BC Civil Court System
Small claims court
BC Supreme Court
Court of Appeal
Supreme court of Canada
Financial Services Tribunal - where it can be appealed
Where it appears that Real Estate Services Acr or rules have been contravened, a disciplinary order from BCFSA may be issued.
Plaintiff - alleging a wrong by the other party
Defendant- defending
Small claims:
🔹claimant
🔹defendant
Not every claim results in a trial, most are settles out of court.
Two major reasons:
🔹effect of pre-trial process-narrows down the points often leading to a settlement.
🔹court costs- remain a monetary concern for a weak case
Pretrial process
🔵Written Pleadings
🔹filing a notice of civil claim
🔹filing a response - denying all or some
🔵Discovery
🔹bringing our relevant evidence before it ever gets to trial (mini-trial)
🔹examine the other party
🔹important issues for the court are identifies
🔹parties can plainly see the strengths and weaknesses in their positions
🔹delays in proceedings encourage settlements
🔵trial
🔹burden of proof- the obligation of the plaintiff to prove its case
🔵judgement
Court Cost do two things:
🔸partially reimburse the successful party for legal fees
🔸Discourage people from bringing or defending weak cases
Garnishing order
wages and bank account
