midterm Flashcards
what does civil litigation involve?
involves a legal dispute between two or more parties seeking compensation or other specific actions
explain onus or burden of proof for civil and criminal proceedings
- onus or burden of proof for civil proceedings is “balance of probabilities”
- onus or burden of proof for criminal proceedings is “ beyond a reasonable doubt”
describe what a limitation period is
a time period where a person has the right to sue another for a specific matter
once the period passes, they lose the right to sue
name and describe the seven steps to a full trial
step 1: pleadings - legal documents used to commence, answer and conclude lawsuits
step 2: discovery -
- discovery of documents - preparing, filing, issuing and serving a formal list of documentary evidence a party wants to use as evidence at trial
- discovery of property - occurs in certain circumstances where the condition of the property is key to the lawsuit
step 3: pre-trial conference - meeting of lawyers for the parties in a lawsuit and the judge before a case is set for trial
step 4 : trial - each party presents their evidence which they rely on to prove their case before a judge in court
step 5: decision of the court
- judgement: decision of the court in an action
- order: decision of the court in a motion
step 6: execution - process available to the successful party to a lawsuit to enforce a judgment
step 7: appeal - process by which a party to a proceeding is unsatisfied with the outcome and appeals to the court of appeal
name the three originating processes
actions
applications
petitions
differentiate between actions and applications
an action is typically used to commence all matters
an application is used to commence originating proceedings of a summary nature
what documents are involved in an action
statement of claim
statement of defence
reply
counterclaim
crossclaim
third party claim
subsequent party claim
what are the parties called in an action
the commencing party is called the plaintiff
the opposing party is called the defendant
what are the time period rules for a defendant to file their defence
within 20 days after service of statement of claim if defendant is in Manitoba
within 40 days after service of statement of claim if defendant is within Canada or the USA
within 60 days after service of statement of claim if defendant is elsewhere
explain what a counterclaim, crossclaim and third party claim are
a counterclaim is when a defendant is not only defending the claim against them, but also makes their own claim against the plaintiff
a crossclaim is when the defendant responds to the plaintiffs claims and makes a crossclaim against the co-defendant within the same proceeding
a third party claim is when the defendant says that if they are liable for the main claim, liability will be passed onto a third party
how many subsequent party claims are allowed
an unlimited amount of subsequent claims are allowed
for each new party brought into a pleading, what must they be given
a new party brought into a pleading must be served with a notice
what is the evidence involved in an application
evidence involved in an application are in the forms of affidavits
what are the parties called to an application
the commencing party is called the applicant
the opposing party is called the respondent
what documents are involved in an application
notice of application
affidavit in support
affidavit in reply
affidavit in opposition
applications without notice
differentiate between the court document cover page of an action and an application
the document of an application cover page must state the Court of King’s Bench rule under which it is made within
must all new parties brought into a civil proceeding be given notice?
no
it is only reserved for urgent matters where the notice on the opposing side gives the party an opportunity to evade the jurisdiction of the court
or
when the court determines more harm would be caused by serving a notice to opposing party
what is a motion
a party’s formal request that the court make a specific ruling or order in a case
how are applications and motions similar
both need written forms of evidence
what types of process is a motion and what does this mean?
motions are interlocutory processes
it means “to speak in the middle of”
what are the parties called to a motion
parties in a motion are called the same as they are in the originating process that relates to the motion
what are the three substantive parts to a motion
- what relief or orders are being sought
- what the ground are for making the motion
- what evidence will be brought to support the motion
who hears motions
masters of the Court of King’s Bench have jurisdiction to hear all motions except those set out in rule 37.02(2)
what is an expedited action
expedited actions are mandated by rule 20A
allows parties to use and expedited litigation process for all actions up to $100,000
