Law Unit 3 Test Flashcards
1
Q
What is another name for Civil Law?
A
Private Law.
2
Q
What are the 6 parts of Civil Law?
A
Tort, Contract, Family, Property, Wills & Estates, and Employment law.
3
Q
What side does the balance of probabilities fall on in a civil law case?
A
The Plaintiff’s side.
4
Q
If you are under the age of 18, can you sue on your own? If not, who can sue for you?
A
If you are under the age of 18, you cannot sue on you’re own but a “next friend” can sue for you.
5
Q
What is a “writ of summons”?
A
An official order for someone to appear in a court of law when they have been accused of committing an offence against someone. Basically, the legal document that starts a case.
6
Q
What is an examination for discovery? And why does the court use it?
A
An examination of evidence from both sides before a civil trail, both lawyer’s showing each other their evidence. The court uses it so that when the evidence is analyzed, there are no surprises as they are trying to win on legal grounds.
7
Q
If more than one person wants to sue a company, what do you call that type of suit?
A
A class action lawsuit, more than one person involved. For example, a class action lawsuit against a pharmaceutical companies for selling harmful drugs.
8
Q
What are Special Damages?
A
Compensations for out-of-pocket expenses. For example, if you were hit by a car, you can start a claim for the money you needed for the ambulance and the medicine you needed because you paid for it out of your own pocket before you sued the defendant.
9
Q
What kind of damages are awarded to punish the defendant?
A
Punitive damages which are damages that punish so the company/person won’t do it again.
10
Q
What are Civil Remedies?
A
Solutions for civil issues that become the outcome of a civil case. Can include; money (paying someone back), stopping or starting something (the building of property), asking for a job back, etc.
11
Q
If you sue for Pecuniary Damages, what can you get money for?
A
Future earnings or future care. For example, lost job wages. Pecuniary damages are calculatable, if I got hit by a car, I can’t work, so I want 6 weeks’ worth of earnings while in recovery.
12
Q
What is the difference between Pecuniary and non-pecuniary damages?
A
Pecuniary damages are calculable and non-pecuniary damages can not be calculated. Non-pecuniary damages can include money for pain and suffering which is decided by the judge.
13
Q
If you are compensated for intangible losses such as humiliation or distress, what kind of damages can you sue for?
A
Aggravated damages.
14
Q
What is an injunction?
A
A court order that will get you to start or stop something. While the case is still happening, an injunction will start or stop a situation in order to rectify the problem. Such as the building of a fence on property that may or may not belong to either two individuals.
15
Q
If you are a worker who is injured on the job, what form of compensation could you get?
A
Worker’s compensation.
16
Q
What is ADR?
A
Alternative Dispute Resolution - A way to settle disagreements besides going through the expensive and long court process.
17
Q
Explain the 3 parts to ADR?
A
Negotiation: both parties communicate to reach an agreement (no lawyers no money spent).
Mediation: A neutral third party sitting and listening to both parties coming to an agreement. The third-party makes you come forward but nothing that is said is legally binding.
Arbitration: The third party (a judge) will impose the solution and you have to follow through with it (legally binding).
18
Q
What are the disadvantages of ADR?
A
- Not suitable in all cases – violence
- Confidentiality can be a problem if publicity might-prevent other problems – Michael Jackson
- If need to set a precedent or case could affect a large group – court is needed
19
Q
What are the advantages of ADR?
A
- Saves time and money
- Success rate of 80 – 85%
- Informality, privacy and control over proceedings (out of court)
20
Q
What are the key differences between Criminal and Civil Law?
A
- Criminal Law is public while Civil Law is private
- Criminal Laws cover crimes aganist the state while Civil Laws cover laws aganist other people
21
Q
What is a Tort?
A
Damages to property or injury to yourself caused by another person.
22
Q
What are the 3 stages of Negligence? Explain each stage.
A
Duty of care: the neighbourhood principle and foreseeabiliy. General knowledge and common sense, blasting my music at 2am will annoy my neighbours so I have a duty of care to not.
Standard of care: depending on who you are, you have a higher standard of care. If someone was choking and an EMT was around they have a higher standard of care to save the person than an ordinary person.
Causation: the plaintiff must prove that the defendant’s negligence caused the thing to happen.
23
Q
What is the difference between an invitee, a licensee and a trespasser?
A
Invitee: Invited into a home, they are owed the highest level of care.
Licensee: Like if you were in a Walmart or another enclosed public place, not home but not trespassing. Still owed a level of care but not as high as an invitee.
Trespasser: They should not be there, they are owed a low level of care.
24
Q
Give an example of something that constitutes allurement?
A
Trampoline
Swimming pool
Treehouse
25
Use an example to explain the concept of product liability?
For example, if defective tires were sold to you and they caused you to crash, the product is liable for causing that injury. Some products, such as birth control, come with extensive warning labels as the side affects are extreme and the companies do not want to be liable. Anything you consume or use have a level of product liability.
26
What is Voluntary Assumption of Risk? Give an example.
Voluntary Assumption of Risk is when you agree that what you are about to do is dangerous. For example, if you joined a rugby team, you signed a waiver and volunteered to play, agreeing that it’s dangerous and still willingly participating.
27
Why are some individuals held to a higher “Standard of Care” than others?
Mostly because they have the education that has given them more knowledge on what to do in certain situations than ordinary people, especially in the medical field. For example, a doctor is held to a higher “Standard of Care” than others because they have the eduction on what to do if someone needs medical attention.
28
What is a medical battery?
Treating a patient without their consent, doing something wrong, or generally, not what the patient want’s you to do. For exmaple, when doctor’s add an extra stitch after a woman gives birth, not for her own comfort but for her spouse.
29
If you detain a person without consent or legal authority, you are committing what offence?
False Imprisonment.
30
What is the difference between a public or private nuisance?
Public nuisance affects many people on a mass scale while private nuisance only affects one or a few people. For example, an oil spill versus your neighbour playing loud music at 4am.
31
Describe two types of interference with property?
Trespass to Chattel: If someone repeatedly interferes with your propety. For example, a friend who always takes your phone and tries to disallow you from getting it back.
Conversion: If someone deprives you of your property (converts it to their use). It’s a substantial interference – borrowing a bike for 5 minutes is a trespass, taking it for a 3 week bike trip is conversion.
32
What is another word for conversion?
Theft.
33
What is the difference between Libel and Slander?
Libel is written while slander is verbal.
34
What is the defence to defamation?
Truth, if the defamatory statements are true, then they can be published.
35
Who can use Absolute Privilege?
Politicians in Parliament.
36
What is a Fair Comment?
A defence to defamation where the comments were honest and made without malice. For example, film critics or teachers can use the defence of Fair Comment.
37
What are the “essential requirements” to a marriage?
A list of requirements that make sure no one is being taken advantage of before getting married. For example, age, consent, mental capacity, etc.
38
On what grounds can you sue for divorce?
You can sue for divorce on the grounds of adultery and cruelty but you must be separated for a year before divorcing.
39
Plaintiff:
The party initiating a legal action.
40
Defendant:
The party being sued in a civil action.
41
Counterclaim:
An action brought in response to the plaintiff’s claim aimed at diminishing or removing the defendant’s liability.
42
Arbitration:
A process in which a neutral third party hears both sides of the dispute and makes a binding decision.
43
Mediation:
A process in which a neutral third party intervenes to bring opposing parties to an agreement.
44
Duty of Care:
The obligation to foresee and avoid careless actions that might cause harm to others.
45
Neighbour Principle:
The legal responsibility to owe a duty of care not to harm one’s neighbour by being careless or negligent.
46
Foreseeability:
The ability of a reasonable person to anticipate the consequence of an action.
47
Standard of Care:
The degree of caution or level of conduct expected of a reasonable person.
48
Cause-in-Fact:
The factual “cause and effect” connection between one person’s actions and another person’s injuries.
49
Thin-skull rule:
The principle that a defendant is liable for all damages caused by negligence despite any pre-existing condition that makes the plaintiff more prone to injury.
50
Host:
Someone who serves alcohol to guests or paying costumers.
51
Invitee:
A person invited onto a property for a business purpose.
52
Malicious Prosecution:
Wrongful prosecution of a person without reasonable and probable cause.
53
Public nuisance:
Unreasonable and substantial interference with interests that effects the community at large, such as public health and safety.
54
Conversion:
Unauthorized and substantial interference with another’s property, which deprives the owner of its use.
55
Slander:
A defaming oral statement or gesture.
56
Malice:
Any improper or ulterior motive for publishing a defamatory statement.
57
Fair Comment:
A defence to defamation that the comments were honest and made without malice.
58
Libel:
Defamation in a permanent form, such as written or record statements.
59
Pecuniary damages:
Monetary compensation for losses that can be calculated.
60
Common-Law Relationship:
An intimate relationship between two individuals who are not legally married.
61
Divorce:
The legal termination of a marriage.
62
Ratification:
an indication of willingness to be bound by a contract
63
Summary of Civil Law
Who?
Individual vs. individual (plaintiff vs. defendant)
Purpose?
To resolve disputes
To compensate for injury or loss
Grounds?
Cause of action (torts, breach of contract, etc.)
Action?
Issuing a summons and statement of claim
Onus or Burden of Proof?
Rests with the plaintiff
Degree of Proof?
Balance of probabilities
Weaker than Criminal Law’s “beyond a reasonable doubt”
Finding?
Liability: part or whole
Damages to be awarded
Injunction to be granted
Specific performance ordered in contract dispute
64
Litigants:
The parties involved in a civil action.
65
Damages:
Compensation for a wrong suffered.
66
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 or likely to be correct.
67
Next Friend:
An adult who represents a child or a person under a disability who initiates a civil lawsuit.
68
Guardian ad Litem:
The person appointed to act on behalf of a minor or person under a disability who is being sued.
69
Pleadings:
Documents stating formal allegations by the parties regarding their claims and defences.
70
Write of Summons:
A legal document that commences civil actions in some provinces.
71
Statement of Claim:
A document outlining the facts supporting a civil action and the remedy desired.
72
Remedy:
The relief sought by the plaintiff.
73
Particulars:
Specific details of a claim in a civil action.
74
Default of Judgment:
A judgment against a party who has failed to defend a claim.
75
Statement of Defence:
The response to the plaintiff’s complaint, denying the allegations in part or in whole.
76
Counterclaim:
An action brought in response to the plaintiff’s claim aimed at diminishing or removing the defendant’s liability.
77
Third party Claim:
A complaint filed by the defendant claiming that another party is at fault.
78
Liable:
Legally responsible for a wrongful action.
79
Cross-Claim:
A claim made between parties on the same side of the litigation.
80
Examination for Discovery:
Examination of evidence by both sides before a civil trial.
81
Affidavit of Documents:
A list of documents relevant to the case that will be used at trial.
82
Privileged Documents:
Records and information that can be excluded from examination by the other side in a civil action.
83
Settle out of Court:
All parties agree to resolve the dispute instead of going to court.
84
Class Action Suit:
A lawsuit initiated by a group of people over a complaint common to all.
85
Torts:
Damages to property or personal injury caused by another person.
86
Unintentional Torts:
Injuries that are a result of an incident or an action that was not intended to cause harm.
87
Negligence:
A type of conduct that falls below the standard required by society. Also involved an unreasonable risk of harm to others.
88
3 stages to a negligence claim:
Duty of Care
Standard of Care
Causations
89
Duty of Care:
The obligation to avoid careless action that could cause harm – hitting baseballs in your backyard.
90
Neighbour Principle:
One has a duty of care not to harm your “neighbour” by being negligent. Your neighbour is anyone you can reasonably see being injured by your actions – tripping over a bike on the sidewalk.
91
Foreseeability:
Being aware that your actions could cause injury is important in determining duty of care – if a ridiculous series of events causes the accident then there is no foreseeability.
92
Standard of Care:
How much care did the defendant owe the plaintiff? The standard is the reasonable person’s test- a person of normal intelligence.
93
Causations:
The third factor a plaintiff must prove in a case of negligence is that the actions of the defendant actually caused the plaintiff’s injuries.
94
Cause-in-fact:
Determined by the “but for” test. If the injury would have happened “but for” the defendant’s actions, then those actions were a cause-in-fact of the injury.
95
Remoteness of Damages:
Even if the plaintiff can prove that the defendant’s actions were cause-in-fact of the injury, the plaintiff also has to show a “direct connection” between the wrong and the injured.
96
An intervening act:
An unforeseeable event that interrupts the chain of events started by the defendant.
97
Thin-Skull Rule:
the principle that a defendant is liable for all damages caused by negligence despite pre-existing conditions that make the plaintiff more prone to injury.
98
Pecuniary Damages:
Monetary compensation for losses that can be calculated.
99
Non-Pecuniary Damages:
Compensation for losses that do not involve an actual loss of money and are difficult to quantify.
100
Aggravated Damages:
Compensation for intangible losses such as humiliation or distress.
101
Special Damages:
Compensation for out-of-pocket expenses.
102
Punitive (or exemplary) Damages:
Damages imposed to punish the defendant for reprehensible conduct.
103
Nominal Damages:
Minimal compensation to acknowledge a moral victory.
104
Specific Performance:
A court order requiring someone to fulfill the terms of a contract.
105
Injunction:
A court order requiring or prohibiting an action.
106
Garnishment:
A court order requiring a third party to pay the plaintiff money owed to the defendant.
107
Intent:
The desire to commit an act for a specific purpose is an intent.
108
In Tort law assault has a different meaning than in criminal law. Explain the difference.
In criminal law, assault is a harmful physical act, however, in tort law assault is an offensive conduct that causes a reasonable apprehension of imminent harm - a reasonable suspicion that you will face harm but you haven’t yet.
109
An unlawful interference with the person, property, or rights of another is called?
Trespass.
110
If someone deliberately shocks another person or acts in a way that causes a person mental anguish resulting in emotional stress and illness, the perpetrator could be liable for?
Intentional infliction of nervous shock or mental suffering.
111
What is the definition of battery:
Intentional, unauthorized physical contact that the victim considers harmful or offensive.
112
What are the conditions that constitute malicious prosecution?
- Someone has to be charged with a crime when there are no reasonable grounds for the charge.
- The individual instigating or continuing the proceedings must be motivated by malice (the desire to harm another).
- The proceedings against the defendant must be resolved in the defendant’s favour.
- The defendant suffers damages as a result of wrongful proceedings.
113
What defence against the person can sometimes be turned around so that the “innocent party can end up being liable for battery along with the original aggressor?
Self-Defence
114
Slander - To be successful you must establish that the statement;
- Was heard by someone else
- Were about you
- Would lower your reputation in the eyes of a reasonable person
- Caused you to suffer some form of damages (special or actual)
115
Libel - To be successful you must prove that:
- Damage to your reputation presumed because the publication is widely available
- Intent of defendant is not an issue – if you publish defamatory statements, you can be liable libel
116
Defences to Defamation:
- Truth
- Fair Comments (honest and made without malice)
- Absolute Privledge (politiicans speaking in parliament or the legislature, court or a tribunal - allows for open speech from elected officals)
- Qualified Privilege (made without malice - teacher comments)
117
Defences to Negligence:
1. Absence of Essential Ingredients - Duty of Care but no injury has occurred.
2. Voluntary Assumption of Risk - Defendant must show that the Plaintiff clearly knew and appreciated the nature and degree of risk involved, Defendant must also show Plaintiff voluntarily accepted the risk (getting into a car with an impaired driver)
3. Contributory Negligence - Not a complete defence but used to reduce liability, Used the show a person did not act in his/her own interest and has therefore contributed to the harm suffered
4. Product Liability: Manufactures, wholesalers, repairers or anyone else involved in the distribution of consumer goods...may be liable for negligence if a consumer is injured by defective goods (ReNu), Liability may be based on improper design (Ford Pinto), Liability may be based on failure to warn or flammable chemicals with no warning
118
Intentional Interference with Property:
Ability to enjoy your property without interruption or disturbance.
119
Trespass to Land:
Anyone who enters or remains on your property without permission without interruption or disturbance
- Intent = intent to go on the land, knowledge is unnecessary
- If permission to go on property is removed = trespass
- You can use reasonable force to remove a trespasser if they refuse to leave voluntarily
120
Trespass to Chattels:
Chattels= Movable personal property (your stuff)
No damage to chattel necessary, if someone harasses you by constantly committing a trespass to chattel you can sue.
121
Conversion = Theft:
If someone deprives you of your property (converts it to their use)
A substantial interference – borrowing a bike for 5 minutes is a trespass, taking it for a 3 week bike trip is conversion.
122
Assault:
Offensive conduct that causes a reasonable apprehension of imminent harm.
- A person who points a gun at someone or threatens to unleash a growling dog could be liable for assault.
123
Battery:
Intentional, unauthorized physical contact that the victim considers harmful or offensive.
- If someone pushed someone else off a ski lift.
124
Sexual Assault:
Intentional, unauthorized sexual contact that the victim considers harmful or offensive.
- If someone was touched inappropriately at work.
125
Medical Battery:
Performing the wrong medical procedure or performing a procedure without the patient’s consent.
- If someone operated on the wrong disc in someone’s back.
126
False Imprisonment:
Detention of a person without consent and without legal authority.
- Being thrown in jail for something you didn’t do.
127
Malicious Prosecution:
Wrongful prosecution of a person without reasonable and probable cause.
- If someone was charged because of personal malice.
128
Nervous Shock/ Mental Suffering:
Deliberately shocking someone, causing the victim to suffer mental or physical harm.
- If an ex-boyfriend released videotapes of an ex-girlfriend non-consensually, causing mental harm.
129
Invasion of Privacy:
Invading someone’s privacy.
Taking photos or videos of someone inside their home or a private place without their knowledge or consent.
130
Remedies:
Usually a civil actions is brought to allow plaintiffs to receive money, or damages, for the loss or injuries they have suffered.
131
Breach of Contract:
The court may try to return the hurt party what it bargained for, or damages for not getting what it bargained for.
132
Property Damage:
Usually a simple matter to give the aggrieved party enough money to repair or replace the property.
133
Personal Injury:
Try to compensate the person or family adequately and make sure they have enough money for future care.
134
Essential Requirement:
Federal laws that determine a person’s ability to marry.
135
Formal Requirement:
Provincial and territorial laws regarding the solemnization of marriage.
136
Annulment:
Declaration by the court that a marriage never existed.
137
Common-Law Relationship:
An intimate relationship between two individuals who are not legally married. (Cohabitation)
138
Marriage Contract:
A domestic contract that deals with specific aspects of the marriage, including the division of property in the event of a divorce, separation, or death.
139
Separation Agreement:
A domestic contract that sets out the terms and conditions of the separation, dealing with issues such as support payments and division of assets and property.
140
Divorce:
The legal termination of a marriage.
141
Petitioner:
The person seeking a divorce.
142
Respondent:
The person being sued for divorce
143
Adultery:
Sexual intercourse by a married person with someone other than his or her spouse.
144
Cruelty:
The mental or physical behaviour of one spouse causing harm to the other, making staying together intolerable.
145
Custody:
Care of a child awarded to a parent by a court when the relationship ends.
146
Access:
The non-custodial parent’s right to visit the child.
147
Crown wardship order:
A family judge’s order to make the state (government) the guardian of a child.
148
Adoption:
A legal process by which a couple (or a single person) becomes the legal parents of a child.
149
Equalization Payments:
What the spouse with the higher value of assets pays to the other spouse to make the division of total assets more equitable.
150
Will:
Written instructions for the distribution of property and possessions after death.
