Chapter 11 & 12 Flashcards
civil law
- private, doesn’t affect society as a whole
- disputes between individuals or between people & businesses and/or government
- purpose: to compensate people for wrongs committed against them
types of civil law
- torts
- contract
- property
- family
- labour
tort
- wrong committed against another person
- often associated with criminal cases
- 3 types: unintentional, intentional, strict liability
contracts
agreement between 2 parties to do or not to do something
property disputes
- refers to real estate & land issues
- also tenant/landlord issues
family law
deals with adoption, child support, divorce, child custody, separation, division of property, wills, & estates
labour law
deals with employees & employer issues (wages, pay equity, dismissal, work conditions, etc.)
small claims
- ranging from $3000-$10,000
- “the people’s court”
- informal, deals with simple civil actions
Supreme court of BC
- $10,000+
- lawyers are required
- can have a judge and/or jury
Appeal court of BC
hears appeals from lower courts
federal court of Canada
Federal gov’s dispute with employees, disputes over income taxes, copyrights & trademarks, etc.
Supreme court of canada
- appeals of appeal court or federal court
- only hears cases of national importance or those with a split vote at appeal court
litigation
the process of suing someone
litigants
the people involved in suing someone
process of suing someone in small claims
- plaintiff files summons (pays filing fee, proves cause of action (reason for suing), has limitation period of 2 years)
- defendant’s options: agree & pay claim, pay part of claim, plaintiff accepts or pursues, “statement of defence”, counter-claim (sue them back), third-party claim, nothing -> “default judgement” (they lose)
- in BC you have 14 days to respond to a summons, 30 days if you’re out of province
Pre-trial conference
present case to each side to reach an out-of-court settlement, if parties can’t agree, a trial date will be set
writ of summons
filing a case & delivery of the summons (calling people to court)
pleadings
response of the defendant
examination for discovery
question & answer session between litigants & lawyer
pre-trial conference
last chance for litigants to reach settlement without a formal trial
the trial
- parties go to trial if settlement can’t be reached
- can be by judge alone, or by judge & jury
general damages
- can’t be calculated easily or precisely (ie. loss of income, pain & suffering, etc.)
- pecuniary losses: income loss
- non-pecuniary losses: pain & suffering
specific damages
compensate expenses spent before trial due to injury (ie. hospital expenses)
punitive damages
additional damages awarded to punish defendant for bad behaviour
nominal damanges
awarded when judge wants to indicate support for plaintiff & award small sum to show that they won (ie. $1-$100)
court costs
losing party is usually required to pay court fees
injunction
an order for a person not to do something
garnishment
plaintiff can obtain court order required 3rd party to pay debt to the court
examination of a debtor
defendant forced to appear in court to show that they have the financial resources to settle the case
seize assets
courts take legal possession of debtor’s property and sell it to settle judgement
automobile judgements
can keep up to $5000 from the sale of your car
parties involved (civil vs. criminal)
- civil: plaintiff vs defendant
- criminal: crown attorney vs. accused/defendant
grounds/reason (civil vs. criminal)
- civil: resolving a dispute
- criminal: laying of criminal charge to determine innocence or gult
purpose of action (civil vs. criminal)
- civil: to compensate victims
- criminal: to punish offender
onus of proof (civil vs. criminal)
- civil: on plaintiff
- criminal: on crown attorney
burden of proof (civil vs. criminal)
- civil: balance of probabilities
- criminal: beyond reasonable doubt
result of action (civil vs. criminal)
- civil: defendant “liable” or “not liable”
- criminal: accused “guilty” or “not guilty”
action if guilt or liability found (civil vs. criminal)
- civil: plaintiff is awarded compensation or remedy, no jail
- criminal: defendant is sentenced, could go to jail
Negligence
anyone who creates unreasonable risk & carelessly injures a person or damages property (not liable if there is no actual harm)
3 types of negligence
- unintentional
- unplanned
- causes injury
Duty of Care
- responsibility or legal duty not to harm people or their property (ie. keeping snow off walk)
- started in 1932 after Donaghue vs. Stevenson case
Standard of Care
degree of care society expects from people… higher for someone who’s an expert in their field
the reasonable person
careful, thoughtful, & considerate of other people, doesn’t have developmental or physical disabilities
foreseeability
the degree to which the actions can be anticipated…would a reasonable person have been able to predict injury?
causation
- if defendant has breached standards of care
- plaintiff must prove defendant’s action directly caused the action
actual law
- if defendant has breached standards of care
- plaintiff must prove some injury or loss as a result of defendant’s negligence
burden of proof
- if defendant has breached standards of care
- onus is on plaintiff to prove this on balance of probability
ADR
- alternative dispute resolution
- used to avoid the time-consuming & expensive civil litigation process
- 3 types: mediation, negotiation, and arbitration
mediation
- neutral 3rd party helps the 2 parties come up with a solution
- both parties agree to the solution
- both parties agree on the choice of mediator
negotiation
- 2 parties informally negotiate a settlement
- no 3rd party
arbitration
- parties pick a mediator
- mediator listens to both sides and comes up with a decision
- a clear winner & loser (mediator presents a decision the parties must do)
crime vs. tort
- crime: wrong that affects society
- tort: wrong that affects another person
Purposes of Tort Law
- provide compensation to victims
2. solve disputes
Rights of Minors in Civil Actions
- may take civil action just like adults
- if suing for more than $500, their guardian must conduct the proceedings
Judgment
seeing what damages are awarded
Enforcing a Judgment is whose responsibility?
Plaintiff’s
Defences of Negligence
- contributory negligence
- voluntary assumption of risk
- inevitable accident
Contributory negligence
- if both parties were negligent, judge must determine whether or not they were equally negligent in order to decide liability & compensation
- defendant’s responsibility to prove plaintiff’s negligence
Voluntary assumption of risk
You know it was dangerous but accepted the risk
Inevitable accident
an unavoidable situation (ie. you have a heart attack and crash your car into someone)
Children & negligence
- no legislation outlines their tort liability
- case law says:
- under 6 or 7: not liable
- parents may be liable if standards of care weren’t met (under Parental Responsibility Act)
Contributory negligence (motor vehicle negligence)
ICBC says 50/50
Liability for passengers (motor vehicle negligence)
If you know the driver is drunk, it’s voluntary assumption of risk
Vicarious liability (motor vehicle negligence)
Liability if you lend your car to someone else and they crash (ie. parents are responsible if kid crashes car)
Seatbelt negligence (motor vehicle negligence)
If the other person’s at fault but you weren’t wearing your seatbelt, your damages are less by 15-40%
Professional Negligence
- professionals have a higher standard of care
Medical negligence
Must disclose material risks so that patient can give informed consent
Invitees
- Anyone on your property for a purpose other than a social visit (ie. for business)
- highest standard of care
- ex. students, customers
General Invitees
Someone who comes to your business
Commercial/social host Invitees
Someone who comes to your bar/restaurant
Licensees
- Someone who comes to your property for social reasons (ie. dinner guests)
- Lesser standard of care
Trespassers
- someone who enters property without permission or overstays their welcome (ie. burglar, wandering child)
- still need reasonable standard of care
Unintentional tort
Negligence
Intentional torts
- trespass a person (ie. assault, battery, false imprisonment)
- trespass property
- nuisance
Assault (in civil law terms)
Fear that harm may occur
Battery (in civil law terms)
Follow-through of assault (touching another person without their consent)
False imprisonment
confining/restricting someone to an area without their consent without having the authority to do so (ie. detention of a shoplifting suspect by a mall cop)
Trespass of property
- entering/crossing someone’s property without consent or placing items on someone’s property without consent
- no damage required
Nuisance
- can be unintentional
- use of ones land in a manner that infringes upon the ability of someone else to enjoy their land
- harm must be serious and continuous
Defense options for torts
- consent
- self-defence
- defence of others
- defence of property
- legal authority
- necessity
Consent
had permission, or action was voluntarily undertaken by the victim
Self-defence
using reasonable and necessary force that isn’t excessive (cannot use provocation)
Defence of 3rd party/others
if there was immediate danger and your act was necessary to protect someone else
Defence of property
owners can protect property from trespassers
Legal authority
it’s their job (cops, store detectives, etc.)
Necessity
they had to do it, emergency situation
Defamation
an untrue attack on a person’s reputation or good name
Slander
- oral defamation
- plaintiff must prove:
- statements were made to someone else
- they lowered the plaintiff’s reputation in the eyes of a reasonable person
- some form of damages
Libel
- defamatory statements that are written, printed, recorded, filmed, drawn, etc.
- more serious than slander (more widespread)
- don’t have to prove damages
- can be intentional or unintentional
Defences to defamation
- truth
- absolute privilege
- qualified privilege
- fair comment
Truth
- facts are verified
- strongest defense
Absolute privilege
- protection from liability for statements made in parliament, tribunal, courtrooms, etc.
Qualified privilege
protection from liability for statements made without malice (ie. past employers can write a negative reference)
Fair comment
Comments were honest and made without malice (ie. critics can make an honest assessment)
Intent
reason behind committing the action
Strict liability in tort law
When an activity exposes others to risk, there’s no need to prove negligence/intent - the accused is still at fault even if they didn’t do anything (ie. dog owner is at fault if dog bites someone)
