Chapter 1 - Fundamentals of Law Flashcards
What are the three sources / types of law
1) common law
2) equitable law
3) statute law
What kind of law is judge made?
Common law
Common law facts
Doctrine of stare decisis -let the former decision stand
Precedent-former (earlier) case decisions are used
Remedy for common law
Damages == $$$$
What type of law is based around fairness?
Equitable law
Quantum meruit
Comes from equitable law
“As much as is deserved”
The law will imply a promise to pay a reasonable amount
Remedies to equitable law
1) specific performance
2) quantum meruit
3) injunction
What type of law is based around legislation?
Statute law
Example: land title act
Enacted by government
In answering a legal question, the judge will 1st look at ______ law before _______ law
Statute 1st
Common later
Can a judge choose remedies from both equitable law and common law?
No sir,
What are the two primary types of law
1) private / civil / tort
2) public law
Civil / tort / private law
Deals with problems between individuals
Examples: breach of contract, divorce, tort action, agency or contract law
Public law
Deals with problems between state and individuals
Tax, constitutional, criminal law
Federal law involves what? And doesn’t involve what?
Involves:
Banking, bankruptcy, currently, postal services, marriage and divorce, criminal matters, patents, copyrights, shipping, fisheries, and national defence
Does not include education (think of grade 10 provincial exams) not federal exams
Provincial matters include
Education!
Provincial exams
4 types of courts, in order from top of pyramid to lowest part of pyramid
(Supreme sandwich)
1) small claims court
2) Supreme Court of BC
3) BC court of appeal
3) Supreme Court of Canada
Small claims court
Lowest Trail Court
Monetary limit: $35,000 or less
Territorial limit: Where DEFENDANT lives or where claim arose
Supreme Court of BC
Acts as a trial court AND appeal court
No territorial or money limit
Judge may order a new trial or rehear the case / evidence
Bc court of appeal
Highest appellate court in BC
Won’t rehear evidence but will review legal principles
Supreme Court of Canada
Highest appellate court in Canada
No evidence is reheard
Not required to hear appeals
Civil Resolution Tribunal (CRT)
A Newley created ONLINE TRIBUNAL tasked with resolving almost all strata corporation disputes, regardless of the value of the dispute
Civil Resolution Tribunal (CRT) looks after what topics?
1) non-payment of strata fees
2) non-enforcement of strata bylaws
3) certain small claims disputes
4) certain motor vehicle accident injury disputes (up to $50k)
Phases associated with the Civil Resolution Tribunal (CRT)
Phase 1: negotiation
Phase 2: facilitation
Phase 3: adjudication
CRT Phase 1
Negotiation - involves the parties communicating online in an effort to settle the dispute
CRT phase 2
Facilitation - CRT staff will assist the parties in attempting to reach a settlement
CRT Phase 3
Adjudication - where an adjudicator will make a decision that is enforceable by the courts
Trial Process 4 stages
1) pleading
2) discovery - no judge
3) trial
4) judgement
Pleading
Stage 1 of trial process
1) notice of civil claim - by plaintiff , gives details
2) response of civil claim - by defendant, statement denying the claims
Discovery
No judge present!
Like a mini trial that reveals as many facts as possible before the actual trial
Parties can see the strengths and weaknesses of their positions
Often encourages settlements
Trial
Plaintiff must prove his case
Must prove “burden of proof”
Plaintiff makes their case first, then the defendant goes
There is NO switching of witnesses
Judgment
Court issued a decision to resolve the issues
Winner = judgment creditor Loser = judgment debtor
Plaintiff (claimant)
The person who is alleging a wrong occurred (the injured party)
Defendant
Person defending
Enforcing the Judgement
1) examination of judgement debtor
- the judgment debtor must reveal assets and income under oath
A) writ of execution - assets can be seized and sold to satisfy claim by sheriff
B) remedies against land - a lien
C) garnishing of wages (order) - 30% of wages, not all
When a judge “distinguishes” a case on its facts, this means
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
Aka - no precedent present
Quantum meruit is a legal principle that
Implies a promise to pay a reasonable amount where none is mentioned
In answering a legal question, the judge will first look at the relevant common law court and will then refer to statute law to fill in the blanks
False!
Statute first
Common law refers to judge made law?
True
When a case is brought before a judge of the British Columbia Supreme Court
The judge may exercise both equitable and common law jurisdiction
Which one of the following occurs during the pleading process?
Response of a civil claim
Which one of the following is NOT an available course of action to a successful plaintiff seeking to enforce a judgement
1) execution
2) notice of civil claim
3) garnishing order
4) enforcement of judgment
2) not a judgment type
An appeal by a taxpayer to reduce tax assessment would fall within the sphere of private law
False!
Public law
