Chapter 1 - Fundamentals of Law Flashcards
Common Law
Court-based, judge-made law
Stare Decisis: “Let the former decision stand”; The earlier cases which are followed
Equity
Based on equality & fairness
Canada court joins Common Law & Equitable Law
- If there is conflict, Equitable law takes priority
Statute Law
The body of law made by our government representatives in the federal parliament, provincial legislature, or municipal council
The residual power to legislate over areas not specifically covered is left with the federal government
Municipal governments are not given their authority to legislate under the constitution
- Sections are “carved out” of the provincial power and passed down to the cities within the province.
- Local governments pass bylaws which govern matters within their jurisdiction
A judge will first look to see if a statute has been passed which provides an answer, then interpret statute law as previously done & if no statues exist, will reply on case law alone
Common Law VS Statute Law
COMMON LAW
- In present day, includes both common law and equitable principles as evolved from case decisions
- Uniformity created as a result of stare decisis (courts follow former similar decisions)
STATUTE LAW
- Laws passed by federal, parliament and municipal governments
- Federal & provincial powers found in the constitution
- Municipal power carved out of provincial power
- Used to change the common law
Different Categories of Law
CIVIL LAW: Law that deal with relationships between individuals that are of no concern to the state (Most important in real estate)
- Contacts, agency, and tort law are also civil law matters of daily concern to licensees
PUBLIC LAW: Law that deal with the constitution and bodies of government, the relationship between individuals and the state, and relationships between individuals that are of direct concern to the state
Trial Courts
A dispute is first heard and judgement first passed upon it in the courts.
- All the evidence is presented
- Judge reviews the evidence, decides which evidence to be believed, looks at former cases and statute law and makes a decision
Two civil courts in BC: Small Claims Court & Supreme Court
Small Claims Court
Claims of $25,000 or less & territorial limitation imposed:
- That the cause of action arose within the territorial jurisdiction of the court; or
- That the person being sued lives or carries on business there.
- If the amount claimed is greater than the monetary limit, the claimant can either reduce the claim or bring the action in the Supreme Court.
Supreme Court
- Top trial court in the province
- No monetary limitation upon claims & no territorial limitation
Appellate Court
After a trial judge has made their decision, either party may appeal that decision to a higher court
- Appellant: The person bringing the appeal
Review the trial judge principles - Error found = the decision may be reversed
Appeal from Small Claims Court
Small Claims Court appeals go to the BC Supreme Court
Party filing will first appear before a judge to argue the legal or factual errors from trial
If the judge hearing the appeal allows the appeal, a new trial may be ordered
- all of the evidence is reheard and the new trial judge gives their own decision on the matter
Appeal from Supreme Court
Supreme Court appeals go to the BC Court of Appeal (provincial appellate court)
Panel of judges hears the appeal and the majority view decides the matter
Appeal from BC Court of Appeal
BC Court of Appeal appeals go to the Supreme Court of Canada
Can decide not to hear the appeal
- Court of Appeal’s decision will stand if not heard
Panel of judges - Evidence is not reheard & the majority view decides
Parties to a Lawsuit
The Parties to a Lawsuit: Each party presents their case & judge/jury decides & is binding on both parties
- Plaintiff: Alleging a wrong by the other party (Small Claims = Claimant)
- Defendant: Defending the lawsuit
Court Costs
Money court orders the unsuccessful party to pay the successful party as a partial reimbursement of the legal expenses (legal fees & disbursements), of bringing/defending the lawsuit
- Court costs are not the same as legal fees.
Mediation
Either party may initiate mediation by delivering a Notice to Mediate form to the other party and to the Dispute Resolution Office.
Trial Process in BC - Stage 1
CAUSE OF ACTION ARISES
A civil wrong (e.g. breach of contract or tort) is committed.
Trial Process in BC - Stage 2
COMMENCING THE ACTION & PLEADINGS
The injured party consults with a lawyer.
The lawyer prepares and files a notice of civil claim, naming the injured party as the plaintiff and the wrongdoer as the defendant.
The defendant answers with a response to civil claim. The notice of civil claim and response to civil claim outline the case that each intends to present if the matter goes to trial.
Trial Process in BC - Stage 3
DISCOVERY
Each party is examined under oath by the other party’s lawyer.
In addition, all relevant documents are examined. Most actions are settled after discoveries have taken place.
Trial Process in BC - Stage 4
TRIAL
A judge alone or a judge and jury hear all of the evidence and gives the decision at a later date.
Trial Process in BC - Stage 5
JUDGMENT
The defendant will either be found liable or not liable to the plaintiff.
The successful party, at the discretion of the court, might be awarded “costs”, payable by the losing party, which will partially cover the legal expenses of bringing the action.
Examination of the Judgement Debtor
The plaintiff can examine the judgment debtor in court about their assets and sources of income.
May be ordered to pay the judgment by regular installments of a certain amount.
Failure to pay the required installments, they may be liable for contempt of court.
Execution
If the judgment debtor has assets, (for example, a car), these can be seized and sold & the sale proceeds can be applied towards the amount owing.
Remedies Against Land
If the judgment debtor owns an interest in land, can be registered in the land title office as a charge against the judgment debtor’s interest.
Garnishing Order
Where any third person owes money to the judgment debtor, the plaintiff can obtain that money.
Not possible to garnish all of an employee’s wages; 70% of wages are exempt
Cannot be less than $100/month or $200/month for a married person with dependents.
Limitation Period
AT LAW: Once a legal right to bring an action arises, the person having that right must exercise it within a prescribed period of time.
- Within 2 years of the date on which the right to do so arose
- An action in contract (does not involve physical injury to person or property) must be brought no later than 6 years after the date on which the right to do so arose.
IN EQUITY: Must bring that action within both the legal limitation period and also within a reasonable amount of time (depends on the circumstances of each case).
