midterm

Question 1

what does civil litigation involve?

Answer 1

involves a legal dispute between two or more parties seeking compensation or other specific actions

Question 2

explain onus or burden of proof for civil and criminal proceedings

Answer 2

• 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”

Question 3

describe what a limitation period is

Answer 3

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

Question 4

name and describe the seven steps to a full trial

Answer 4

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

Question 5

name the three originating processes

Answer 5

actions
applications
petitions

Question 6

differentiate between actions and applications

Answer 6

an action is typically used to commence all matters

an application is used to commence originating proceedings of a summary nature

Question 7

what documents are involved in an action

Answer 7

statement of claim
statement of defence
reply
counterclaim
crossclaim
third party claim
subsequent party claim

Question 8

what are the parties called in an action

Answer 8

the commencing party is called the plaintiff

the opposing party is called the defendant

Question 9

what are the time period rules for a defendant to file their defence

Answer 9

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

Question 10

explain what a counterclaim, crossclaim and third party claim are

Answer 10

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

Question 11

how many subsequent party claims are allowed

Answer 11

an unlimited amount of subsequent claims are allowed

Question 12

for each new party brought into a pleading, what must they be given

Answer 12

a new party brought into a pleading must be served with a notice

Question 13

what is the evidence involved in an application

Answer 13

evidence involved in an application are in the forms of affidavits

Question 14

what are the parties called to an application

Answer 14

the commencing party is called the applicant

the opposing party is called the respondent

Question 15

what documents are involved in an application

Answer 15

notice of application
affidavit in support
affidavit in reply
affidavit in opposition
applications without notice

Question 16

differentiate between the court document cover page of an action and an application

Answer 16

the document of an application cover page must state the Court of King’s Bench rule under which it is made within

Question 17

must all new parties brought into a civil proceeding be given notice?

Answer 17

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

Question 18

what is a motion

Answer 18

a party’s formal request that the court make a specific ruling or order in a case

Question 19

how are applications and motions similar

Answer 19

both need written forms of evidence

Question 20

what types of process is a motion and what does this mean?

Answer 20

motions are interlocutory processes

it means “to speak in the middle of”

Question 21

what are the parties called to a motion

Answer 21

parties in a motion are called the same as they are in the originating process that relates to the motion

Question 22

what are the three substantive parts to a motion

Answer 22

1. what relief or orders are being sought
2. what the ground are for making the motion
3. what evidence will be brought to support the motion

Question 23

who hears motions

Answer 23

masters of the Court of King’s Bench have jurisdiction to hear all motions except those set out in rule 37.02(2)

Question 24

what is an expedited action

Answer 24

expedited actions are mandated by rule 20A

allows parties to use and expedited litigation process for all actions up to $100,000

Question 25

what rule does an expedited action fall under

Answer 25

it falls under Rule 20A

Question 26

what steps are involved in an expedited action

Answer 26

pleadings
pre-trial conference
trial

Question 27

when is an action placed on an expedited action list vs. a full trial list

Answer 27

actions for $100,00 or less are automatically placed on an expedited action list

actions for more than $100,00 are automatically placed on the full trial list

Question 28

how do you move an action from the expedited action list to a full trial list and vice versa? why would you need this?

Answer 28

you may move so with the consent of the other party

if hearing date is scheduled or notice of motion is filed together with an affidavit and a consent order from the other party

Question 29

what is the purpose of small claims court

Answer 29

to hear claims in a less formal way than other divisions
for hearing claims with disputes over money or property

Question 30

who may hear a small claim

Answer 30

heard by court officers with experience and training in the court system

or sometimes by a judge of the Court of King’s Bench

Question 31

what are the parties to a small claim called

Answer 31

the commencing party is called the claimant

the opposing party is called the defendant

Question 32

what documents are involved in the commencing of a small claim?

Answer 32

small claim
blank defence
declaration of service

Question 33

what document are involved in the defending of a small claim

Answer 33

defence
defence and counterclaim
declaration of service

Question 34

how may documents within a small claim be served? what is not an acceptable method of service?

Answer 34

hand a hard copy of the small claim to the respective party
or to a person who appears to be 16 years of age or older in the same residence
or send a copy of the document by registered mail the the respective party at their residence

express posts or couriers are not acceptable

Question 35

when would the defendant be noted in default for a small claim

Answer 35

1. if they fail to file a defence or defence and counterclaim within the necessary time period
2. if they fail to show up at the hearing

Question 36

what happens if the claimant does not show at the hearing of a small claim? what if the defendant does not show?

Answer 36

-if the defendant does not show, they will have deemed to accept the allegations made by the claimant

if the claimant does not appear, the hearing would be adjourned to another date, or the claim is dimissed

Question 37

when may the decision of a small claim be set aside? what does this mean?

Answer 37

a decision of a small claim can be set aside if the defendant did not deliberately fail to appear to the hearing

defendant filed an application as soon as possible after learning of the decision on the claim

it is fair to set aside the decision

if it is set aside, it becomes null and void

Question 38

what are two categories of service

Answer 38

personal service

alternative to personal service

Question 39

what does personal service mean

Answer 39

leaving an exact photocopy of a document with the party to be served

Question 40

what does an alternative to personal service mean

Answer 40

party to be served does not receive a copy of the document directly

Question 41

differentiate between acceptance of service and admission service

Answer 41

acceptance of service is used on originating processes documents

admission of service is used on all other documents

Question 42

what are methods of alternative to personal service

Answer 42

service at place of residence
service by mail to last known address
service on lawyer of record

Question 43

what are acceptable methods of service to serve the lawyer on record for a party

Answer 43

leave a copy with the lawyer or employee of the firm
mail a copy to the lawyers office
fax a copy of the document with a cover page
proof of service
courier
email