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Sauder School of Business - Real Estate Licence > Lesson 1 - Chapter 1 - Fundamentals of Law > Flashcards

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

1
Q

______ refers to court-base, judge-made law that is typically recorded in written decisions

A

Common Law

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2
Q

How does common law derive its authority

A

from historical customs and the decisions of judges originally settling disputes between people in accordance with these social customs

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3
Q

define stare decisis

A

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

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4
Q

equity (in common law)

A

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

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5
Q

Which court holds the most weight in our law?

A

Supreme Court of Canada

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6
Q

define specific performance

A

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

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7
Q

define injunction

A

a court order which either restrains a party from doing something or requires a party to do something

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8
Q

define statue law

A

it is the body of law made by our government representatives in the federal Parliament, provincial legislature, or municipal council.

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9
Q

The power of the provinces or the federal government to make laws is set out _______________

A

in our Constitution

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10
Q

in common law what are the remedies

A

remedy of damages

remedy by injunction

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11
Q

Municipal governments are not given their authority to legislate under the Constitution, so how do they govern?

A

Specific powers are
carved out” of the provincial power and passed down to the municipalities or cities within the province.

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12
Q

___________ is used to change the common law or to create rules in areas untouched by the common law

A

Statute Law

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13
Q

define private law

A

the law that deals with disputes between two or more individuals

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14
Q

define public law

A

the law that regulates disputes between individuals and the public as a whole (ie, the state).

The term “public’ may be:

  1. general (applying to all persons within the jurisdiction);
  2. local ( applying to a geographical area);
  3. special ( relating to an organization or authority charged with a public interest)
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15
Q

___________ covers those types of law that deal with aspects of relationships between individuals that are no direct concern to the state

A

Civil Law / Private Law

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16
Q

What are some examples of civil law?

A

breach of contract, a divorce, or a tort action are civil law matters

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17
Q

What are some examples of public law?

A

tax law, constitutional law, and criminal law

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18
Q

Administrative tribunals

A

are not part of the court system

less formal adjudicative bodies established to hear disputes in specific areas

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19
Q

Are there monetary limits for strata corporation disputes?

A

no

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20
Q

What are the three potential phases involving settling a dispute through CRT

A

Negotiation, facilitation, and adjudicaiton

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21
Q

If a claim above $5000 is made to CRT, what caveat is exceptional here

A

the amount above $5,000 must be abandoned and cannot be claimed anywhere else.

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22
Q

What does the CRT not have the legal authority to deal with?

A

certain matters such as libel, slander, claims against the government, claims with constitutional questions, and claims involving the Human Rights Code.

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23
Q

If a party objects to a decision reached by the CRT, how long does a party have to file a notice of object?

A

28 days

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24
Q

What are the two civil courts of original jurisdiction in BC?

A

Small Claims Court and the Supreme Court

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25
Q

What is the monetary limit to Small Claims Court?

A

$35,000 or less

26
Q

In addition to the monetary limit, what are the other limits imposed upon actions in Small Claims Court?

A
  1. the cause of action arose within the territorial jurisdiction of the court
  2. the person being sued lives or carries on business there
27
Q

Which court has no monetary nor territorial limitation within the province

A

Supreme court of BC

28
Q

After a trial judge has made a decision, either party may appeal that decision to a higher court. The higher court is called ____________

A

appellate court

29
Q

An appeal from the Small Claims Court is to _____________

A

BC Supreme Court

30
Q

Does an appeal from Small Claims Court automatically lead to a new trial?

A

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.

31
Q

An appeal from Small Claims court to BC Supreme Court, the judge allows the appeal, what are the next steps?

A

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.

32
Q

an appeal from the BC Supreme Court is taken where?

A

To the BC Court of Appeal

33
Q

The provincial appellate court, how many judges heaf in the Court of Appeal

A

3 in most cases

sometimes 5 in more difficult cases

34
Q

When there is an appeal to the Court of Appeal, what is the next step?

A

an appeal to the Supreme Court of Canada in Ottawa

35
Q

can the BC Court of Appeal decide not to hear an appeal?

A

No

36
Q

Can the Supreme Court of Canada decide not to hear an appeal?

A

yes

37
Q

If the Supreme Court of Canada decides to not hear an appeal, what happens next?

A

the Court of Appeal’s decision will stand

38
Q

What is an adversarial process

A

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.

39
Q

define plaintiff

A

the person who is alleging a wrong by the other party

40
Q

define defendant

A

the person defending the lawsuit

41
Q

Under the new BC Supreme Court Civil Rules, who does a plaintiff begin an action?

A

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.

42
Q

Once a defendant has been served, what are the next steps?

A

Defendant files a response to civil claim

43
Q

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.

A

pre-trial

44
Q

A factor which may influence a decision to settle out of court is the risk ________ of being awarded against the unsuccessful part.

A

court costs

45
Q

Are court costs the same as legal fees?

A

no

the court costs will only cover a fairly small percentage of a litigant’s actual out of pocket expenses.

46
Q

What are the two motivations court costs do?

A
  1. partially reimburse successful party for legal fees
  2. discourages people from bringing or defending weak cases
47
Q

Do both parties have to agree to Mediation in order for it to be manditory

A

No

Any party may initiate mediation simply by delivering a Notice to Mediate from to every party and to the Dispute Resolution Office.

48
Q

What are the alternatives to litigation?

A
  • Mediation
  • Arbitration
49
Q

A __________ works to assist parties in a dispute to achieve a consensual binding agreement themselves

A

Mediator

50
Q

In a dispute, ____________ reviews the evidence and arguments from the parties, will make a binding decision

A

an arbitrator

51
Q

Why is arbitration preferred to litigation

A

flexibility, privacy, speed and freedom it allows for parties to choose a decision-maker based on their expertise.

52
Q

List the 5 stages of Civil Trial Process in BC

A
  1. Cause of Action Arises
  2. Commencing the Action and Pleadings
  3. Discovery
  4. Trial
  5. Judgement
53
Q

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

A
  • land title search
  • vehicle registration search
  • personal property registry search
54
Q

define execution

A

the process of commencing proceedings to collect an amount owing by reason of a judgment

55
Q

In order for a charge against a judgment debtor’s interest, how often does the lien against the property must be renewed

A

every second year to be valid

56
Q

What are the limitation to the garnishing of wages

A

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

57
Q

______ and ______ are two common forms of assets that might be subject to a garnishing order.

A

Wages

a bank account

58
Q

What is a limitation period?

A

it is the period of time that a person having the right to bring a legal action forward to exercise

59
Q

What is the basic limitation period for civil claims

A

2 years

60
Q

What is the ultimate limitation period

A

15 years

61
Q

How does a potential defendant, acknowledging liability, change the limitation period?

A

Resets it to begin on the date of acknowledgement

62
Q

What actions are considered an acknowledgment of debt or liability

A
  • the defendant makes a partial payment of a claim for a liquidated sum
  • provides written confirmation of liability

Sauder School of Business - Real Estate Licence (3 decks)

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