Civil Law - Unit 4 Flashcards
What is civil law? What three things does it entail?
Law that governs the relationship between individuals
Private rights/obligations:
> Contractual rights
> Property rights
> Torts (civil wrongs)
What are parties called in a case?
Litigants
(Litigation = action)
What are the titles of those involved in the case (victim and perpetrator)?
Plaintiff - party that initiated the legal action
Defendant - litigant against whom the action is taken
With whom does the onus of proof lie?
> Onus of proof is on the plaintiff
Prove the case on a “balance of probabilities” - the weighing of evidence to decide whether it is the plaintiff’s or the defendant’s version of the events that is more convincing
What are examples of causes of civil action?
- Torts
- Breaches of contract
- Consumer problems
- Unpaid debts
- Landlord/tenant disputes
- Property disputes
- Family matters: adoption, custody, divorce, etc.
- Bankruptcy
Click to see important note.
Persons under the age of majority (18 years) cannot sue or be sued in their own name. A minor must be represented by an adult (“next friend”). If an infant or person “under a disability” is sued, the court will appoint an adult to act as the minor’s representative (“guardian ad litem”).
What are the stages in a civil action?
Cause of action
(reason for suing)
|
Writ of summons
(in some provinces
Issued by court)
|
Statement of claims
(plaintiff story)
|
Statement of defense
(defendant response)
|
Reply
|
Examination for discovery
(evidence examined from
both sides)
|
Pre-trial conference
(informal meeting between
parties and a judge)
- Two options now
> Settlement out of court
(no trial necessary)
> Trial court
(case presented and ruling delivered)
= Appeal (decision challenged by either party) {optional}
What are the courts involved in civil cases?
- Small Claims Court
- “The People’s Court”
- Simple + inexpensive
- Concerns money and property 10,000 or less
> Ex. Landlord and tenant conflict, consumer complaint, consumer debt, recovery of property - Provincial Supreme Court
- Highest level of court in a province
- Deals with the most serious criminal and civil cases in the province - Court of Appeal
- Appeals decisions made in other courts
- Criminal or civil - Federal Court of Canada
- Deals with claims against the government of Canada - Supreme Court of Canada
- Ensures that each branch of government recognizes the limits of its own power
What are the kinds of claims in a civil case?
- General damages
- Special damages
- Punitive damages
- Nominal
- Specific performance
- Injunctions
Explain what general damages are. Include two subsections.
- Pecuniary: compensation for losses that can be calculated based off the money the plaintiff lost
> Example: car accident victim that confines the victim to a wheelchair for life - you can also sue for damages to replace the car and also loss of future earnings. - Non-pecuniary: terrible personal loss which does not involve money and is difficult to quantify
> Example: pain and suffering, loss of a loved one, mental anguish, aggravated damages (humiliation or distress), cannot be given a price
> Judges will usually make the monetary compensation based on rule of precedent (looking at other, similar cases and their verdicts)
> Maximum of $400,000
Explain what special damages are.
- Compensation for out of pocket expenses
> Can provide receipts for the loss
> Example: medication, therapy, ambulance services, medical expenses, lost income (fixed period of time), car repairs
Explain what punitive damages are.
- Punitive damages: punish the defendant for reprehensible/malicious conduct
> Example: false imprisonment or arrest, assault, battery, libel and slander
Explain what a nominal claim is.
- Nominal: minimal compensation to acknowledge a moral victory
> Example: someone was using your land and you wanted them to stay off, you may be awarded $1 for you suffered no loss but merely wanted to assert your rights
Explain what a specific performance claim is.
- Specific performance: court order compelling someone to fulfill the terms of a contract
> Example: buy a puppy from a breeder but the breeder changes her mind and gives you your deposit back. You don’t want the deposit, you want the puppy.
Explain what injunctions are.
Injunctions: a court order requiring someone to do or not do something
> Mandatory injunction: must do
> Prohibitory injunction: forbidden to do
> May be permanent or temporary
> Example: apply dangerous chemicals, copyright trademarks, force striking works to return to work
Enforcing a judgement:
> Examination of a judgement debtor: being questioned under oath to find out the debtor’s assets
> Garnishment: court can order a % of wages, bank accounts be deducted to pay plaintiff
> Execution or seizure: sheriff seizes assets of debtor and sells them
Explain what aggravated damages are.
- Similar to punitive damages, but awarded to compensate the plaintiff as well as punish the defendant
What are alternatives sources of compensation.
- Motor Vehicle Liability Insurance - money from the insurer of the defendant’s vehicle (only in motor vehicle accidents)
> Problem: not everyone has liability insurance - No Fault Insurance - provides immediate funds without evidence of fault
- Worker’s Compensation - provincial workers compensation fund
- Criminal Injuries Compensation: criminal injuries compensation boards have been created to compensate innocent victims when the assailant doesn’t have any assets or insurance
How does a trial work?
- In a trial by jury the judge instructs the jury on the law applicable to the facts of the case
- The jury must consider this as well as other considerations:
> Who was at fault?
> Is that person totally at fault? (%)
> How should damages be determined?
> How much should they be?
Explain a class action lawsuit.
A lawsuit initiated by a group of people for a complaint common to all
Benefits:
> Avoid necessity for many similar lawsuits
> Similar claims are treated similarly
> Eliminated barriers like economic barriers that prevent people from pursuing legal action
Explain motor vehicle negligence.
- Violating any section of the Highway Traffic Act can be considered driver negligence when another individual suffers harm or loss.
- Often the defendant will argue contributory negligence if the the plaintiff driver contributed to the accident or was not wearing his or her seatbelt.
- Drivers are usually responsible for their passengers’ safety as well.
- Vicarious liability is when a person is held responsible for another’s tort or wrong doing.
> For example, if an owner of a car lends his car to a friend, the owner of the car is vicariously liable for the friend’s driving.
Explain occupier negligence.
- An occupier is someone who owns, controls, and supervises property.
- Occupiers owe a general duty of care to ensure the safety of others that enter their property.
- There are three classes of persons that enter property:
> Invitee: Someone who is on the property for reasons other than social visits.
> Licensee: Someone who is on the property with implied permission or for a social visit.
> Trespasser: Someone who enters property without permission or a legal right. - Occupiers’ Liability Act: Eliminates the difference between invitees and licensees, both are owed the highest duty of care, which is to ensure that they are safe from danger the occupier knows about or ought to know about.
- Trespassers are not actually owed a duty of care, but if the occupier is aware of the trespasser, they owe them a reasonable standard of care. Occupiers cannot set traps for trespassers.
- Occupiers owe a duty of care to children when they have allurements on their property, like a swimming pool.
Explain commercial host liability.
- Commercial hosts are places such as bars, restaurants, and other service establishments that serve alcohol.
> Commercial hosts have a duty of care to prevent customers from drinking too much and driving.
> Commercial hosts must monitor the consumption of alcohol for their customers. - Servers must: have experience and training in recognizing intoxicated patrons; monitor patrons’ consumption; cut off patrons that have had too much to drink; inquire about a patron’s transportation home; arrange a taxi ride if necessary; call a family member or friend; take away a patron’s keys; call the police.
Explain professional negligence.
- Professionals include architects, dentists, doctors, engineers, lawyers, and pharmacists.
- One area of this negligence is medical malpractice or negligence: this includes negligence and failure to receive a patient’s informed consent.
