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
Remedies to equitable law
1) specific performance
2) 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
What are the two primary types of law
1) private / civil / tort
2) public law
Private law (also Tort/Civic 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 Government
Has exclusive authority to pass legislation dealing with matter which involve:
Banking, bankruptcy, currency, postal services, marriage and divorce, criminal matters, patents, copyrights, shipping, fisheries, and national defence.
Provincial Governments
Are responsible for property and civil rights, municipal institutions, the administration of justice within the province, education and generally matters of a purely local or private nature.
4 types of courts, in order from top of pyramid to lowest part of pyramid
1) Supreme Court of Canada
2) BC Court of Appeal
3) BC Supreme Court
4) Small Claims Court
Small claims court
Lowest Trail Court
Monetary limit: $35,000 or less
Territorial limit: Where DEFENDANT lives or where claim arose
BC Supreme Court
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
Phases associated with the Civil Resolution Tribunal (CRT)
Phase 1: Negotiation
Phase 2: Facilitation
Phase 3: Adjudication
Negotiation
Involves the parties communicating online in an effort to settle the dispute
Facilitation
CRT staff will assist the parties in attempting to reach a settlement
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
When a case is brought before a judge of the British Columbia Supreme Court (can use what kind of laws?)
The judge may exercise both equitable and common law jurisdiction
