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Civil Litigation > Exam > Flashcards

Exam Flashcards

In preparation of the final exam this coming Monday!!

1
Q

Name the court that you would appeal a decision of the Superior Court?

A

Court of Appeal Ontario

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2
Q

Name the document that you can file if you do not have time to file a statement of claim, but want the action to commence?

A

Notice of Action

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3
Q

What monetary factor determines whether a proceeding is heard in Small Claims Court?

A

Whether the claim is for less than $25,000

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4
Q

What is a limitation date?

A

A date by which a matter must be commenced or the right to do so may be lost

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5
Q

What is the title of a legal document part of?

A

Part if the General Heading

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6
Q

The person before whom an affidavit is sworn is the..

A

Deponent

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7
Q

Materials that are referred and relied on in an affidavit are called…

A

Exhibits

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8
Q

What is a jurat?

A

Ending of affidavit attesting where, when, and before whom sworn

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9
Q

Law between individuals is known as?

A

Private Law

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10
Q

What is a Boilerplate?

A

The standard text that is not changed in court documents under the Rules of Civil Procedure

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11
Q

What is a True Copy?

A

A copy of the original document that is like the original in every particular including copy of alterations, signatures, and court file numbers. Must be filed with the court.

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12
Q

What is a Statement of Claim?

A
  • Used to commence an action of originating process which must be issued by the court.
  • 6 months to serve document and issue.
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13
Q

Explain “Service” (of a document)

A
  • Giving a copy of the court documents to all parties in the proceeding.
  • Service may depend on the document for example; personal service, service to last known address, service on a lawyer, service on a corporation, service on the solicitor on record.
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14
Q

Explain Litigation?

A
  • The act of preparing and bringing a legal action, securing judgment, and realizing upon judgement.
  • May involve individuals and corporations (the state is not involved)
  • Disputes arising between individuals or individuals and corporations.
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15
Q

Describe two methods of serving a court document on a solicitor of record??

A
  • Service by mail, courier, email.
  • Service to law firm where solicitor is present
  • One is able to prove service with the common method of an affidavit of service. This oath is sworn by the person who affects the proceedings and who authorizes that their statement is true.
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16
Q

What is the purpose of a motion?

A
  • Method to solve problems that arise during the course of civil litigation.
  • Usually done before the trial, and often involves a procedural matter that needs to be answered by the court.
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17
Q

Any ideas of circumstances in which a motion may be required?

A
  • Motion to strike out pleadings
  • Motion to add parties to a proceeding
  • Motion to dismiss an action
  • Motion for summary judgement
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18
Q

What are the types of motions?

A

1) Motions on notice
- Served on all opposite parties to the action
2) Motions without notice
- Where party does not have to be served; or
- All parties have consented to the motion; or
- where there is no other party involved
- or, urgent matter

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19
Q

In the Ontario Superior Court of Justice, what are the two types of judicial officials who may make decisions on contested motions?

A

1) A master
2) A judge
- Registrar may only make decisions on non contested motions

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20
Q

Define a Master.

A

-A minor judicial official with limited jurisdiction to hear and decide specific legal issues identified by the Rules or a statute.

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21
Q

What is a masters jurisdiction?

A
  • Can hear all motions a judge can hear except those provided in the Rules of Civil Procedure - pg. 267
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22
Q

What is a registrars jurisdiction?

A

Rule 37.02(3) provides that a Registrar can make an order granting relief on a motion.
- Only on the consent of all parties
Ex: Amendment of pleadings in some cases

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23
Q

Where do you bring a motion record?

A
  • Brought and heard in the county where the proceeding was commenced
  • Each jurisdiction has practice directions as to when motions are heard and how to schedule them
24
Q

What are the contents of a Notice of Motion?

A
  • Rule 37.06
  • To whom the motion is made;
  • Time, date, and where motion will be heard;
  • Whether the motion will be heard orally or in writing;
  • Legal basis or grounds that support the remedy requested
  • Documentary evidence to be relied upon
25
Q

What are the contents of a Motion record?

A
  • Rule 37.10
  • Cover page
  • Index
  • Notice of Motion
  • All affidavits and other materials served
  • A list of all relevant transcripts
  • Copy of any other material in the court file that might be relevant to the issues of the motion.
26
Q

When is one required a factum for use on motions?

A
  • Required for long complex motions
  • For opposed motions in writing
  • Rules encourage the use of factums on motions.
27
Q

What is a Factum?

A

It sets out:

  • The facts of the case
  • Concise arguments on these facts
  • Statement on the principles of law relied upon
28
Q

What are the requirements for service on the responding party?

A
  • Found at Rule 37.08
  • Minimum service requirements of the Notice of Motion shall be made at least 7 days prior to the date on which the motion is to be heard
  • Don’t count holidays, when seven days or less are prescribed.
29
Q

What is required of a moving party when filing a notice of motion?

A
  • Rule 37.08 (1); and
  • Rule 37.10(1)
  • Where motion is made on notice the material must be filed with proof of service at least seven days before the hearing in the court office where the motion is to be heard.
30
Q

What is the time line for the responding party in regard to servicing a motion?

A
  • Rule 37.10
  • The responding party, if they feel it necessary, shall serve and file a responding record at least four days before the hearing.
31
Q

Define an Order?

A
  • The decision of the court on a motion

- The court will provide the decision by way of “endorsement” on the back sheet of the motion record

32
Q

In civil litigation one may commence a law suit by way of action or application, describe an application.

A
  • Way to commence a law suit
  • Rarely claim monetary compensation
  • Quicker than actions
  • Evidence is generally by way of affidavits
33
Q

Define a Notice of Application?

A
  • It is issued, served and filed as it commences a proceeding
  • Affidavit evidence supports the Notice of Application
  • Respondent will do a “notice of appearance”
34
Q

What is Discovery?

A
  • Occurs after the close of pleadings

- Parties obtain more information about each others cases before trial.

35
Q

What is the purpose of Discovery?

A
  • To discover the evidence
  • To obtain admissions that will help prove your case and assist in weakening the opposing parties case.
  • Narrow issues
  • Assess Credibility
  • To determine if there is a basis for settlement
36
Q

Define e-discovery.

A
  • Term used to describe discovery of documents where the discovery procedures primarily involve the collection and production of information that is stored electronically.
37
Q

What are the time limits for examinations?

A
  • Rule 31.05(1)
  • Oral examination may not exceed seven (7) hours regardless of the number of parties of other persons to be examined.
  • Exceptions is parties consent or leave of the court
38
Q

Describe Undertakings.

A
  • During the examination for discovery the party may undertake to provide or follow-up on a question.
39
Q

What is Default Judgment?

A
  • Default judgment is a judgment issued by a court, in favour of the plaintiff, after the defendant has been deemed to have admitted liability. (by failing to deliver a Statement of Defence)
  • Basically, the defendant has failed to defend
40
Q

What are the two ways to obtain a judgment?

A

1) Through the Registrar, for claims for liquidated damages

2) From a judge, on a motion, for claims for non-liquidated damages.

41
Q

What are Liquidated Damages?

A

Damages that are fixed and predetermined. For example, providing the court with a copy of the contract, or receipts.

42
Q

Explain Default Judgment.

A

A judgment issued by a court, in favour of the plaintiff, after the defendant had been deemed to have admitted liability (by failing to deliver a Statement of Defence)
- Basically, the defendant has failed to defend

43
Q

How do you note a defendant in deault?

A
  • You can either note a defendant in default independently of obtaining independent judgment; or
  • Simply ask that the defendant be noted in default at the same time as you ask for Default Judgment
44
Q

What are the two ways one can obtain a Judgment?

A

1) Through the Registrar, for claims for liquidated damages

2) From a judge, on amotion, for claims for non-liquidated damages

45
Q

What are liquidated damages?

A
  • Liquidated damages are damages that are fixed (predetermined), and that can be easily and definitely substantiated to the court.
  • For example, by providing a copy of the contract, or receipts.
46
Q

How do you obtain default judgment on a claim for liquidated damages?

A
  • File appropriately prepared documentation to the Clerk of the Court location in which your Statement of Claim was issued.
47
Q

How can Pre and Post-Judgment Interest be determined?

A

Can be determined in two different ways:

1) As specified in a contract between the plaintiff and the defendant
2) According to the Courts of Justice Act, s. 128 and 129

48
Q

What is the general rule for the place of trial? Rule 46

A

Rule is that the trial will be held in the judicial jurisdiction where the action was commenced or where the court has ordered otherwise.

49
Q

What is the important timeline rule in regards to listing for trial? Rule 48

A
  • Matter must be placed on the trial list within 2 years of the last defence being filed.
  • If not on list, Registrar will issue a status notice that it must be done within 90 days or the action will be dismissed for delay.
50
Q

Rule in regards to placing the matter on the trial list?

A

The Local Registrar must place the matter on the trial list within 60 days from the date on which the trial record was properly filed.

51
Q

Explain Pre-Trial.

A
  • Pre-trials are mandatory

- Court has major interest in settling matters before trial, and provides an opportunity to explore the issues

52
Q

What is the timelines for Pre-trials?

A
  • Parties to arrange a pre-trial date within 180 days of settling matter down for trial
  • Must be filed by each party at least 5 days before the pre-trial
53
Q

What are a Brief of Authorities?

A

Contains all legal cases, statutes and regulations that support your clients position.

54
Q

What Rule is in regards to backsheets?

A
  • Rule 4 of the Rules of Civil Procedure states that each court document requires a backsheet
55
Q

Where can the damages be found on a statement of claim?

A

Can be found in the “Claim for Relief” of the Statement of Claim

56
Q

What is Pre-judgment Interest?

A

amount calculated up to the time of judgment

57
Q

What is Post-judgment Interest?

A

amount calculated after judgment until the time of payment

Civil Litigation (2 decks)

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