Chapter 3 and 4: Civil Litigation and Contract Law Flashcards
1
Q
Introduction
A
- The civil law governs the interactions between individuals, but can it also include governments and other institutions?
- The common law system is the predominant system of case law used in Canada, and lawyers also refer to case law as common law to distinguish it from statutory law
2
Q
Rule of Law
A
- This concept tries to ensure equal justice for all under the law, the right to a fair hearing, and all of the rights set out in the Charter of Rights and Freedoms
- The basis of our system is something called parliamentary supremacy
- Many believed that an elected group of men were the supreme lawmakers (Parliament) and that they should be the one body that is making the laws, not a king or monarch
- The court’s role was just to interpret and enforce laws that Parliament created
- Judges were there simply to enforce that principle, and they had to apply the law as it is in the books - even it if was distasteful
- Today, statutes and case law do function in tandem to allow a judge to come to the best possible result
3
Q
Hierarchy of the Courts
A
- Not all courts are created equal
- There are courts of first instance, which are trial courts such as the Superior Court of Justice for Ontario, where all the evidence is raised, disputed and decided
- Appellate courts are higher courts which can review the decisions of lower courts if there was a mistake of law
- A split between the judges in not uncommon, and both the majority and the minority may write a decision explaining their thought processes
- There may also be a concurring decision
- The Supreme Court is the ultimate court in Canada and it hears appeals from the common law system, the civil law system in Quebec, and the Federal Court of Appeal
- Generally speaking, higher courts can bind lower courts that are within the same geographical jurisdiction, and the lower are bound to follow the higher
4
Q
Statute Law
A
- The Canadian House of Commons and the legislative assemblies of the provinces and territories draft legislation
- The legislation may allow the Governor-General, the Lieutenant-Governor, a cabinet minister, board, commission or tribunal to make laws called regulations
- These regulations can be quickly and easily enacted to meet the changing needs of that area of law
- A major function of legislation is that laws must be published or what is called promulgated
- There are publications can gazettes, which print and make all the new laws available to the public online
- After a law is published in the gazette, the Canadian public is assumed to be aware of the contents, whether they have read them or not
- Statutes are published in volumes each year called the Statutes of Canada (SC) and are followed by the year they are published
5
Q
Statute Law: Statutory Interpretation
A
- The law is not simply about reading legislation but about interpreting its meaning
- Legislation can actually anticipate future disputes. Legislation is much better equipped to accommodate rapid social change
- There should be several goals of all legislation
- Laws must be general enough to apply to the population required
- They should be clear so there are no contradictory provisions
- There should not be a conflict of laws at the municipal, provincial, federal levels and perhaps the international level
- Laws should not make demands that are not possible to comply with
- They should stand the test of time - Although it is a goal to have legislation that is completely clear in all situations, if legislation is ambiguous in some way, there are several rules to guide judges in how to interpret that material
6
Q
Statute Law: Traditional Rules of Statutory Interpretation
A
- Literal Rule (Plain or Ordinary Meaning Rule)
a. if the words in the legislation are clear and unambiguous, they must be given their ordinary meaning, and grammatical and normal punctuation rules apply
b. Under this rule, the statute alone is the only thin that is to be considered, and no other context is permitted
c. Under this rule, there is recognition that Parliament is given the task of legislation, and a judge cannot usurp that function even if the legislation is ambiguous - The Absurdity Rule (or the Golden Rule)
a. Adds to the literal rule that the normal meaning of the legislation should be used unless this reading would result in an absurdity
b. If there are absurd or unacceptable results, a judge can assume that this was not the intention of the legislation
c. A judge is allowed to move from the literal meaning only as much as necessary to remove the conflict - The “Mischief” or Purposive Analysis Rule
a. The court can seek the legislative purpose of the legislation
b. It looks to what the legislators were trying to cure to see how the act should be interpreted
c. A judge is allowed to move from the literal meaning only as much as necessary to remove the conflict - The Contextual Analysis Rule
a. The court may look not just at the section of the legislation in question, but the act as a whole, other legislation, and perhaps the social conditions surrounding the formation of the legislation - The Plausible Meaning Rule
a. the court can depart from the ordinary meaning of a statute only if there is a more plausible meaning to the words
b. This includes the literal rule that the plain meaning is to be examined, the mischief rule in that purpose of the law is to be ascertained, the absurdity rule in the inclusion of context, and the possibility of drawing on the wider contextual analysis and the plausible meaning rule
7
Q
Statute Law: Case Law
A
- There is a real move in law to use more straightforward and simple language
- Case law needs to be distinguished from court to transcripts
- A written decision is much shorter and only discusses the judge’s (or the panel of judges) conclusion and the rationale for reaching that conclusion
- Cases are largely fact-specific, and the principles that they decide upon can be individual
- Each decided case forms a precedent to be followed in the future
8
Q
Statute Law: Stare Decisis, Ratio Decidendi, and Obiter Dicta
A
- When a future judge is hearing a similar case to one that has already been decided, that judge may be bound to apply the same reasoning that was used in the earlier case
- This general reliance on decided cases is called stare decisis, or to “stand by decided matters”
- Provides that courts are bound to follow precedent and to adhere to decided cases that have similar facts
- Allows stability, consistency, and predictability in matters that come before the court
- There are ways that a judge can decide not to follow a precedent, and this is called distinguishing the case
- Distinguishing a case is very much an art (again there is no right or wrong reason), but it can give flexibility to the system to circumvent a particular case if it felt that it should not be binding
- The value of a precedent case is not just who won or lost, but the reasons the judge decided the case in particular way
- Only the ratio is binding on future courts; all of the other material in the case is just background
- If a higher court overrules that ratio, that principle and case is no longer valid, as the other court may find that ratio was decided in error
- Although the ratio of a case is binding to cases in the future, everything else a judge says is called obiter dicta, which is a Latin term that means “words in passing”
- For the next case that comes along, the obiter could be persuasive to future judges
- It can be concluded that a decision by a judge really has two functions:
- To decide that particular case and solve the dispute
- To establish a legal principle for the future
- Decided cases cannot simply be reopened if there is an allegation that the wrong decision was made
- There are many advantages to following precedent
9
Q
Statute Law: Law Reports
A
- A case report should be a discussion of what the judge was thinking as he or she came to a decision
- These decisions written down by judges are published in books called “case reporters” or just “reporters”
- The editors of these journals decide what cases to publish, and then they write a headnote
- Summary of the facts, the issues, and the decision in the case - Every case citation tells you important information and exactly where you can find a case
- Most cases are reported online, including the free service of CanLii, which provides the full text of cases for free in searchable form
- Note that there are similar sites for other countries
10
Q
Statute Law: The Case Brief
A
- A fundamental way to read cases and remember the important information is to create a case brief
- Summarize a case in order to identify the parties, issues, and teh legal reasoning used
11
Q
The Role of Legislation and Case Law in a Judicial Decision - Summery
A
- If a statute is introduced that does not follow previous case law, the statute overrules the old case law
- Case law can change the applicability of statute law and continue to evolve with the times, but there is always the option of legislators to introduce new statutes if the courts are taking the law in a direction that they do not intend
- Judges must consider these questions
1. Is there a statute that applies? If yes, apply it with the plain meaning, and then add other statutory interpretation tools (absurdity rule, etc.) if need be
2. Is there a case that addresses this situation? If yes, apply that case. however, can those cases be distinguished from the case at hand? Are the facts materially different from the case at hand? What will be the impact of establishing this principle as precedent?
12
Q
Civil Litigation and the Trial Process: Introduction
A
- There are limitations on the time periods in which you can sue another person
- If you are outside of the time limitations, you may lose your right to sue another party forever
- A good lawyer will not automatically start a civil action, but will explore the problem with the client
- They may send a letter on behalf of the client to see if the other side would be willing to negotiate
- This could lead to what is called an out of court settlement
- Parties may agree to divide the damages end in default judgment, settlement, abandonment, or diversion to alternative dispute resolution without ever getting to trial
- If this settlement is unsuccessful, the lawyer must also determine if the client has a cause of action
- The lawyer will usually give an opinion to the client on the likelihood of success in court
- In addition, the civil law system is set up to screen out cases and to discourage them from going forward by helping or forcing plaintiffs and defendants to settle
- Ontario has instituted a mandatory meditation process before the case can proceed to determine whether or not there is a possibility of settling the dispute rather than taking the case to trial
- Once an individual decides to proceed with the formal process of litigation, he or she is regulated by a complex series of rules about how to act within the system
- Most small claims courts have thier own rules, as do family law courts, and courts of appeal
- Most civil cases require the services of a lawyer who has familiarity with the legal procedures and knows how to fill in the required paperwork and make the appropriate motions and requests
- Before starting an action, a lawyer also has to ensure that the parties have standing, which is an important part of the process
- There are four main stages in litigation:
- Pleadings
- Pre-Trial
- Trial
- Post-Trial
13
Q
Civil Litigation and the Trial Process: Pleadings
A
- The first step in an action is filing the pleadings with the court
- Often called filing the originating process
- An action is started by filing a notice of action
- With this document, you are telling the other side that you are going to sue them in court, and it provides a brief summary with enough detail so that the defendant knows what is being alleged against him or her
- The notice is filed by the plaintiff and is taken to a court to register where a fee is paid, and the seal of the court is affixed to make it an official court document. This is called issuing the document
- Plaintiff must serve the notice of action on the defendant in person or by mail
- There are special ways that plaintiff has to serve the defendant so to be sure that the defendant has received it, and it many documents must be served through personal service, where the document is given directly to the person being served, or an agent or officer of a corporation if a business is being served
- Whatever way the documents are sent, the person sending them out must file an affidavit of service with the court house
- The defendant is given a specified time period to respond to the action or the plaintiff can go to court to seek a default judgment
- Now that the defendant has been put on notice, the plaintiff must make a statement of claim that outlines his or her allegations and damages, which must be filled within 30 days of issuing the notice of action
- If the defendant wishes to dispute the claim, the defendant prepares a statement of defence and files it with the court registry, and this time a copy is served on the plaintiff
- In the statement of defence, the defendant can either admit that the allegation(s) are true (usually the obvious truths in the statement); deny the allegations, which puts the facts in issue that must be proven at trial; state that the defendant lacks the knowledge on a particular allegation, which again the plaintiff will have to prove; or the defendant can give his or her own version of the facts, but not arguments
- The defendant will make a counterclaim against the plaintiff, saying that there is actually a claim against the plaintiff
- The defendant may also bring what is called a third-party claim, saying that there are additional parties who should be added to the suit
- If the defendant does not respond, the plaintiff can ask the court for a default judgement, saying that if the defendant did not bother to respond and the plaintiff’s entire claim must be true
- The vast majority of actions that are in the pleadings stage never go to trial
14
Q
Civil Litigation and the Trial Process: Discovery
A
- One objective in the early stages of civil litigation is to uncover as much information as possible before the case comes to trial
- Each side delivers to the other an affidavit of documents, and each side can request to view any or all of these documents taht the other side has in its possession
- Examination for discovery is usually the term used for the process that allows the parties to gather information before trial but after all pleadings have been submitted
- The process involves testimony under oath or affirmation of both parties by the lawyers for the plaintiff and the defendant
- A lawyer can give an undertaking about additional documents or recollections of the client
- If a lawyer is unsure whether the client will be able to produce additional documents, the lawyers may tell the other side that the lawyer will take it under advisement in order to investigate the matter with the client or others
15
Q
Civil Litigation and the Trial Process: Pre-Trial Procedures and Conference
A
- If discovery is complete and the parties still cannot settle the matter, the plaintiff or the defendant can set down the matter for trial by filing a trial record with the court
- Parties are also subject to a pre-trial conference, which is the last step before trial
- This often occurs in the judge’s chambers
- Pre-trial conferences are a tool used to discourage people from proceeding with the court case and encourage settlement, but it may be dependent on the judge that is hearing the material at the pre-trial
- Jurisdictions like Toronto, Ottawa and Windsor are increasingly requiring mediation for some disputes, and this might be a continuing trend in the future
