Chapter 1 - Fundamentals of Law

Question 1

Common Law

Answer 1

Court-based, judge-made law

Stare Decisis: “Let the former decision stand”; The earlier cases which are followed

Question 2

Equity

Answer 2

Based on equality & fairness

Canada court joins Common Law & Equitable Law
- If there is conflict, Equitable law takes priority

Question 3

Statute Law

Answer 3

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

Question 4

Common Law VS Statute Law

Answer 4

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

Question 5

Different Categories of Law

Answer 5

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

Question 6

Trial Courts

Answer 6

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

Question 7

Small Claims Court

Answer 7

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.

Question 8

Supreme Court

Answer 8

• Top trial court in the province

- No monetary limitation upon claims & no territorial limitation

Question 9

Appellate Court

Answer 9

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

Question 10

Appeal from Small Claims Court

Answer 10

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

Question 11

Appeal from Supreme Court

Answer 11

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

Question 12

Appeal from BC Court of Appeal

Answer 12

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

Question 13

Parties to a Lawsuit

Answer 13

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

Question 14

Court Costs

Answer 14

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.

Question 15

Mediation

Answer 15

Either party may initiate mediation by delivering a Notice to Mediate form to the other party and to the Dispute Resolution Office.

Question 16

Trial Process in BC - Stage 1

Answer 16

CAUSE OF ACTION ARISES

A civil wrong (e.g. breach of contract or tort) is committed.

Question 17

Trial Process in BC - Stage 2

Answer 17

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.

Question 18

Trial Process in BC - Stage 3

Answer 18

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.

Question 19

Trial Process in BC - Stage 4

Answer 19

TRIAL

A judge alone or a judge and jury hear all of the evidence and gives the decision at a later date.

Question 20

Trial Process in BC - Stage 5

Answer 20

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.

Question 21

Examination of the Judgement Debtor

Answer 21

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.

Question 22

Execution

Answer 22

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.

Question 23

Remedies Against Land

Answer 23

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.

Question 24

Garnishing Order

Answer 24

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.

Question 25

Limitation Period

Answer 25

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).