Lesson 1 - Chapter 1 - Fundamentals of Law Flashcards
Learning Objectives: - Describe sources of Laws - Explain the doctrine of stare decisis and how it is applied by the courts - Describe the difference between common law and equitable principles, and how they are applied today in BC - Describe how the federal, provincial and municipal governments obtain their power to pass statues and give an example of a law each level might pass - Give an example of a public law matter and a private law matter - Discuss the historical basis of our real propert
______ refers to court-base, judge-made law that is typically recorded in written decisions
Common Law
How does common law derive its authority
from historical customs and the decisions of judges originally settling disputes between people in accordance with these social customs
define stare decisis
literally, “let the former decision stand” - to abide by prior decisions and not to disturb the doctrine of the courts that, when the court has once laid down a principle of law applicable to a certain state of facts, it will adhere to the principle, and apply it to all future cases where the facts are substantially the same, regardless of whether the parties and property are the same
equity (in common law)
the concept of justice being administered by the courts according to fairness as contrasted with the strictly formulated rules of common law. In law the term “equity” denotes the spirit and habit of fairness, justness and right dealing which would regulate interaction of person with person
Which court holds the most weight in our law?
Supreme Court of Canada
define specific performance
the court, rather than granting damages in lieu of performance orders that the terms of the contract be carried out by the party in default
define injunction
a court order which either restrains a party from doing something or requires a party to do something
define statue law
it is the body of law made by our government representatives in the federal Parliament, provincial legislature, or municipal council.
The power of the provinces or the federal government to make laws is set out _______________
in our Constitution
in common law what are the remedies
remedy of damages
remedy by injunction
Municipal governments are not given their authority to legislate under the Constitution, so how do they govern?
Specific powers are
carved out” of the provincial power and passed down to the municipalities or cities within the province.
___________ is used to change the common law or to create rules in areas untouched by the common law
Statute Law
define private law
the law that deals with disputes between two or more individuals
define public law
the law that regulates disputes between individuals and the public as a whole (ie, the state).
The term “public’ may be:
- general (applying to all persons within the jurisdiction);
- local ( applying to a geographical area);
- special ( relating to an organization or authority charged with a public interest)
___________ covers those types of law that deal with aspects of relationships between individuals that are no direct concern to the state
Civil Law / Private Law
What are some examples of civil law?
breach of contract, a divorce, or a tort action are civil law matters
What are some examples of public law?
tax law, constitutional law, and criminal law
Administrative tribunals
are not part of the court system
less formal adjudicative bodies established to hear disputes in specific areas
Are there monetary limits for strata corporation disputes?
no
What are the three potential phases involving settling a dispute through CRT
Negotiation, facilitation, and adjudicaiton
If a claim above $5000 is made to CRT, what caveat is exceptional here
the amount above $5,000 must be abandoned and cannot be claimed anywhere else.
What does the CRT not have the legal authority to deal with?
certain matters such as libel, slander, claims against the government, claims with constitutional questions, and claims involving the Human Rights Code.
If a party objects to a decision reached by the CRT, how long does a party have to file a notice of object?
28 days
What are the two civil courts of original jurisdiction in BC?
Small Claims Court and the Supreme Court
What is the monetary limit to Small Claims Court?
$35,000 or less
In addition to the monetary limit, what are the other limits imposed upon actions in Small Claims Court?
- the cause of action arose within the territorial jurisdiction of the court
- the person being sued lives or carries on business there
Which court has no monetary nor territorial limitation within the province
Supreme court of BC
After a trial judge has made a decision, either party may appeal that decision to a higher court. The higher court is called ____________
appellate court
An appeal from the Small Claims Court is to _____________
BC Supreme Court
Does an appeal from Small Claims Court automatically lead to a new trial?
No
The party filing the appeal will first appear before a judge to argue that there are legal or factual errors in the trial judge’s order.
An appeal from Small Claims court to BC Supreme Court, the judge allows the appeal, what are the next steps?
a new trial may be ordered. Theis means that all of the evidence is reheard and the new trial judge gives their ow decision on the matter.
an appeal from the BC Supreme Court is taken where?
To the BC Court of Appeal
The provincial appellate court, how many judges heaf in the Court of Appeal
3 in most cases
sometimes 5 in more difficult cases
When there is an appeal to the Court of Appeal, what is the next step?
an appeal to the Supreme Court of Canada in Ottawa
can the BC Court of Appeal decide not to hear an appeal?
No
Can the Supreme Court of Canada decide not to hear an appeal?
yes
If the Supreme Court of Canada decides to not hear an appeal, what happens next?
the Court of Appeal’s decision will stand
What is an adversarial process
This means that each party to a dispute presents their case or point of view as persuasively as possible, then either a judge or jury weighs the two sides and comes to a decision that is binding on both parties.
define plaintiff
the person who is alleging a wrong by the other party
define defendant
the person defending the lawsuit
Under the new BC Supreme Court Civil Rules, who does a plaintiff begin an action?
by filing a notice of civil claim which outlines the details of the plaintiffs claim.
Once filed, the plaintiff must serve it on the defendant.
Once a defendant has been served, what are the next steps?
Defendant files a response to civil claim
The ____________ process is intended to reveal as many of the relevant facts as possible before the actual trial so that the important issues for the court to hear are identified.
pre-trial
A factor which may influence a decision to settle out of court is the risk ________ of being awarded against the unsuccessful part.
court costs
Are court costs the same as legal fees?
no
the court costs will only cover a fairly small percentage of a litigant’s actual out of pocket expenses.
What are the two motivations court costs do?
- partially reimburse successful party for legal fees
- discourages people from bringing or defending weak cases
Do both parties have to agree to Mediation in order for it to be manditory
No
Any party may initiate mediation simply by delivering a Notice to Mediate from to every party and to the Dispute Resolution Office.
What are the alternatives to litigation?
- Mediation
- Arbitration
A __________ works to assist parties in a dispute to achieve a consensual binding agreement themselves
Mediator
In a dispute, ____________ reviews the evidence and arguments from the parties, will make a binding decision
an arbitrator
Why is arbitration preferred to litigation
flexibility, privacy, speed and freedom it allows for parties to choose a decision-maker based on their expertise.
List the 5 stages of Civil Trial Process in BC
- Cause of Action Arises
- Commencing the Action and Pleadings
- Discovery
- Trial
- Judgement
For a plaintiff to take further steps in order to have their debit collected, what can they do to get an idea of the judgment debtors income and assets
- land title search
- vehicle registration search
- personal property registry search
define execution
the process of commencing proceedings to collect an amount owing by reason of a judgment
In order for a charge against a judgment debtor’s interest, how often does the lien against the property must be renewed
every second year to be valid
What are the limitation to the garnishing of wages
Cannot garnish all of the wages, 70% of wages are exempt
this cannot be less than $100 per month for a single person and $200 for a married person with dependants
______ and ______ are two common forms of assets that might be subject to a garnishing order.
Wages
a bank account
What is a limitation period?
it is the period of time that a person having the right to bring a legal action forward to exercise
What is the basic limitation period for civil claims
2 years
What is the ultimate limitation period
15 years
How does a potential defendant, acknowledging liability, change the limitation period?
Resets it to begin on the date of acknowledgement
What actions are considered an acknowledgment of debt or liability
- the defendant makes a partial payment of a claim for a liquidated sum
- provides written confirmation of liability
