Notes

Question 1

What is Law?

Answer 1

Law sets basic standards of behavior that are enforced by the government and by individuals and groups with the help of the government.

Law is needed to protect persons, property, and society as a whole; it prohibits conduct that society believes to be harmful to others.

Question 2

What is Rule of Law?

Answer 2

Established legal principles that treat all persons equally and that government itself obeys

Question 3

What is Public Law?

Answer 3

Law that regulates the conduct of government and the relations between government and private persons (law involving the government)

Question 4

What is Private Law?

Answer 4

Law that regulates the relations between private persons and groups of private personals

Question 5

What is Legal Liability?

Answer 5

When a person breaks the law, he or she is held responsible for the consequences = legal liability

Three forms of liability influence individual behavior:

• criminal liability,
• regulatory or quasi-criminal liability,
• civil liability (non-criminal environment)

Question 6

What is Business Law?

Answer 6

Set of established rules governing commercial relationships, including the enforcement of rights (must follow rules)

• General rules of commerce
• Protects business ideas, tangible forms
• Ensures losses are borne by those responsible
• Ensures compliance with commitments

Question 7

Differentiate Law of Nature and Law of Man?

Answer 7

• law of nature – can’t be broken
• law of man – not supposed to be broken – if it is, consequences

Question 8

What are the two types of commercial relationships?

Answer 8

• Business to Business
• Business to Customer

Question 9

What is Civil Law?

Answer 9

Civil law is the system of law involving a comprehensive legislated code derived from Roman law that developed in continental Europe and influenced by the Code of Napoleon of 1804.

Civil law is refined/reviewed every five years.

Question 10

What are the two different meanings of Civil Law based on the context?

Answer 10

1. Refers to private law – law that governs relations among private persons
2. Refers to the Civil Law System of Law. Oldest system of the two. It consists of a comprehensive code (book of rules). The judge does not make the law, the judge abides by it (government makes code)

Question 11

What is Domestic Law?

Answer 11

Internal law of a given country (e.g. statute law, common law)

Question 12

What is International Law?

Answer 12

Governs relations between states, countries, and other entities

Question 13

List 4 facts about Civil Law?

Answer 13

• Oldest of the two systems (6^th century)
• • Justinian wanted a comprehensive code (“civil code”). A book with everything in it. However, if it isn’t in the code, they are going to find the most similar one (analogies)
• • Don’t have to follow previous judgments. However, they usually do because otherwise there are inconsistencies
• • Under the civil law system of law, if two identical cases aren’t in the code, there is no guarantee that judges will come to the same independent decisions since they reason by analogy
• • Napoleon re-vamped the code
• This system was adopted in Canada only in Quebec for private law (not federal), it is used in other countries though
• Rarely has a jury
• Sometimes you have to expand the system of law to certain circumstances. This means adjusting the law, not making law

Question 14

What is Substantive Law?

Give 2 examples of Substantive Law?

What are the 2 types of Substantive Law?

Answer 14

Substantive Law is the rights and duties that each person has in a society.

For example:

• The right to own property/enter into a contract
• The duty to avoid carelessly injuring people

There are two types of substantive law:

• Public Law
• Private Law

Question 15

What is Public Law?

What are the 3 types of Public Law?

Define 3 types of Public Law?

Answer 15

Public Law is the law that regulates the conduct of government and the relations between government and private persons

Three types of Public Law: Criminal Law, Constitutional Law, Administrative Law

1. Criminal Law (government made laws) – sets out how the public is supposed to behave (government vs. the accused) (not person vs person)
2. Constitutional Law – the fundamental law of a nation or state (i.e. the levels of government, judges -all about the government – i.e., how many levels (1 or 2) and which sublevels will they have)
3. Administrative Law – boards/commissions. The government forms these bodies and delegates lawmaking authority to these groups

Question 16

What is Criminal Law?

Answer 16

Criminal Law (government made laws) – sets out how the public is supposed to behave (government vs. the accused) (not person vs person)

Question 17

What is Constitutional Law?

Answer 17

the fundamental law of a nation or state (i.e. the levels of government, judges -all about the government – i.e., how many levels (1 or 2) and which sublevels will they have)

Question 18

What is Administrative Law?

Answer 18

boards/commissions. The government forms these bodies and delegates lawmaking authority to these groups

Question 19

What is Private Law?

Answer 19

The rules that govern relations between private persons or groups. E.g. suing each other for wills, estates, property law. This is the “fabric” of business law

Private law is sometimes referred to as civil law. Deals with individuals rather than the government, and the government does not have to be here. Deals with civil cases i.e. noncriminal cases

Question 20

What is Procedural Law?

Answer 20

It is the law that deals with the protection and enforcement of substantive law rights and duties. Defines the procedures of a lawsuit/case. E.g. someone breaches a contract then, what is the process?

Question 21

What is Common Law?

List some facts of Common Law?

Answer 21

The case-based system of law originating in England covering most of the English-speaking world. It is based on the recorded reasons given by courts for their decisions

Brief history:

• Originated in the UK in 1066
• Landowners made individual rules and common law took away power & made the law common throughout all UK colonies back then
• Today it is still used in all UK colonies; however, each territory has made small modifications

The common law system of law is used all over Canada except Quebec and in most of the English-speaking world. Quebec uses the Civil Law system of law only for private law

Question 22

What are the 3 meanings of Common Law?

Answer 22

1. Common Law System of Law – (what the majority of Canada uses) law based primarily on the decisions of judges
2. The distinction between Common Law vs. Statute Law
   
   • Common law is case law (the law made by judges)
   • Statute laws are laws made by legislatures/government agencies
3. The distinction between Common Law vs. Law of Equity (fairness)
   
   • Common Law started in England with Case Law; it’s very rigid. Follows the previous case law or precedent
   • Equity Laws are laws of fairness. However, they started becoming rigid i.e. specific rules must be followed meaning it provides rulings after considering every aspect of the current case

Question 23

What is Common Law System of Law?

Answer 23

(what the majority of Canada uses) law based primarily on the decisions of judges

Question 24

Differentiate Common Law vs. Statute Law?

Answer 24

• Common law is case law (the law made by judges)
• Statute laws are laws made by legislatures/government agencies

Question 25

Differentiate Common Law vs. Law of Equity (fairness)?

Answer 25

• Common Law started in England with Case Law; it’s very rigid. Follows the previous case law or precedent
• Equity Laws are laws of fairness. However, they started becoming rigid i.e. specific rules must be followed meaning it provides rulings after considering every aspect of the current case

Question 26

What is Law of Equity?

Answer 26

Equity Laws are laws of fairness. However, they started becoming rigid i.e. specific rules must be followed meaning it provides rulings after considering every aspect of the current case

Question 27

What is the Hierarchy of Courts?

List facts about each Hierarchy of Courts?

Answer 27

Final Court of Appeal

• If you lose at the Trial Court and the Court of Appeal, then you go to the Final Court of Appeal
• Minimum number of judges is 5 and a maximum of 9 judges

Court of Appeal

• Multiple odd number of judges (at least 3) to ensure there is a majority vote.
• No witnesses, only a typed written statement of the transcript of the trial. Because of this, judges in Court of Appeal are reluctant to make changes in findings of fact from the trial because they didn’t see the witnesses and because they can’t read emotions and sarcasm in a written statement. E.g. “Yeah right, I killed someone!” Sarcasm doesn’t read well
• The key role of the Court of Appeal judges is in findings of law – what law applies to facts revealed in trial court.

Trial Court

• There is only one judge. There may or may not be a jury. The judge has two main roles:
  
  • Findings of facts – what are the facts?
  • Findings of law. Once the facts are determined, what law applies to the facts?

Question 28

What is a Trial Court?

List some facts of a Trial Court?

Answer 28

• There is only one judge.
• There may or may not be a jury.
• The judge has two main roles:

1. Findings of facts – what are the facts?
2. Findings of law. Once the facts are determined, what law applies to the facts?

Question 29

What is Court of Appeal?

List some facts of Court of Appeal?

Answer 29

• Multiple odd numbers of judges (at least 3) to ensure there is a majority vote.
• No witnesses, only a typed written statement of the transcript of the trial.
• Because of this, judges in Court of Appeal are reluctant to make changes in findings of fact from the trial because they didn’t see the witnesses and because they can’t read emotions and sarcasm in a written statement. E.g. “Yeah right, I killed someone!” Sarcasm doesn’t read well
• The key role of the Court of Appeal judges is in findings of law – what law applies to facts revealed in the trial court.

Question 30

What is the Final Court of Appeal?

Answer 30

• If you lose at the Trial Court and the Court of Appeal, then you go to the Final Court of Appeal
• Minimum number of judges is 5 and a maximum of 9 judges

Question 31

What are the Principles of Stare Decisis (The Theory of Precedent)?

Answer 31

• It is the system whereby the ratio decidendi of a previous higher court (the “original court”) is binding upon judges lower in the hierarchy facing the same fact situation that existed in the original court
• Stare Decisis is a Latin term which means to stand by previous decisions
• It is about following already decided judicial cases. This is the basis of our system
• Judges can make law; they don’t have to follow a code. This is the fundamental feature of our system distinguishing us from civil law
  
  • The past judicial decision is only a binding precedent for courts lower in the judicial hierarchy and in the same jurisdiction/judicial system. It is usually a 3-tiered system where judges must follow judgments from higher courts
• The same level of court decision is not binding. Although prior decisions may influence judges, a judge is only bound to follow decisions of a higher level of Court.
• Precedents bind only the same circumstance. Facts must be identical or the same. If the judge feels the facts are not close to the same or the same, then it is not binding.
• The past judicial decision is only a binding precedent on lower courts in the same jurisdiction. It is valid only if it’s from the same province or country. Past judge’s decision is only binding precedent on courts in the same jurisdiction (province) or judicial system (Canada vs the USA) however can share info and use same decisions
• Non-binding decisions can be persuasive. E.g. If the MB Court of Appeal faces the same facts as in the SK Court of Appeal and there is no binding precedent, then, you can use it to persuade the judge to follow that ruling
• Not everything a judge says in deciding a case is binding on other judges’ later cases.
• Ratio decidendi which means the reason of deciding is binding. It is a part of a judicial decision that explains why the judges decided the way they did.
• Obiter dicta which means by the way is not binding on judges lower in the chain. It is everything that the judges said that isn’t ratio decidendi. The other stuff that they didn’t need to make the decision. It is not always easy to distinguish the two, as judges have their own ideas. The bonus commentary that wasn’t needed to make the decision.

Question 32

Recall the Diagram of Courts in Canada?

Answer 32

See notes

Question 33

What is Ratio Decidendi?

Answer 33

The reason for deciding is binding. It is a part of a judicial decision that explains why the judges decided the way they did.

Question 34

What is Orbiter Dicta?

Answer 34

means, by the way, is not binding on judges lower in the chain. It is everything that the judges said that isn’t ratio decidendi.

Question 35

What are the traditional reasons for Stare Decisis (Theory of Precedent)?

The 3 Cs and their description!

Answer 35

1. Certainty means that the law needs to be fairly predictable. People know what the law is. So, you know what is okay and what is not
2. Consistency means that we need similar cases to be treated similarly
3. Continuity – generally the rule should stay the same over time.

The 3 Cs are all intertwined

Question 36

List and describe the Sources of Law?

Answer 36

CLA

Courts

• Courts make case law. Judges make case law (also known as common law). They make laws with their judgments, which creates case law/common law/judge-made law

Legislatures

• Legislatures make statute law (aka statutes, Acts or primary legislation) e.g. Workers Compensation Act
• Two levels of government can make legislation according to the Canadian constitution:
• Federal Level Parliament – the group of people we elect called the House of Commons which is a legislative body.
• Provincial Level Legislature – the people we vote for to run our province
• Federal and provincial governments can make statutes and acts which can be completely different than the judges’ law (we will get how to solve later)
• Legislatures can create entities called Administrative Entities through statutes
• A valid statute overrules all case law dealing with the same point. E.g. The Supreme Court of Canada made a ruling. After that, a Provincial Legislature makes a statute and thus, all cases going forward must follow the statute/legislation and not the previous ruling by the Supreme Court of Canada

Administrative Legislation & Entities

• Administrative Entities - the law they make is called subordinate legislation.
• Administrative legislation is legislation that is enacted by a person, body or tribunal that is subordinate/below the sovereign legislative body. The only sovereign legislative bodies in Canada are the Federal Parliament and the Provincial Legislature.
  
  • E.g. the City Council of Winnipeg makes by-laws (subordinate legislation). Municipal governments are an example of administrative entities created by provincial legislation
• If the administrative body creates a board e.g. CRTC, then it delegates the power to make laws to that body. This sort of delegation is done because these bodies can have experts that can make better legislation. Additionally, it is more efficient i.e. more work gets done.
• A valid statute overrides all conflicting judge-made law on the same point. Valid meaning the statute is created by the correct level of legislative stature. E.g. Federal level makes a provincial law

Question 37

What can a Statute/Act do?

Answer 37

MKMR

make new laws, knockout old laws, modify & repeal existing laws

• Make new law assuming that it is valid. Valid meaning it is created by the correct level of legislature
• Revoke (repeal) existing common/case law
• Modify common/case law
• Co-define common/case law

Question 38

What are the Roles of the Courts?

Answer 38

APIA

arbiter of the constitution,

protector of civil liberties,

interpreter of legislation,

arbiter of disputes between private parties

Question 39

What is the Consitution Act 1867?

Answer 39

Canada was created as a Statute of Britain. It details what law the federal parliament can make and what law the provincial level can make.

Question 40

What is Section 91 of the Constitution Act 1867?

Answer 40

• Section 91 of the Constitution Act, 1867 sets out a list of areas where only parliament gets to make law (federal level) e.g. Criminal law i.e. Criminal Code is a federal statute, National Defense, Income Tax law
• Second part of Section 91 – It is hard to list out all sets of law. There has to be a fall-back law which states that if it is not listed in section 91/92 then “For the peace, order, and good government of Canada, if an area of law exists that is not covered in our constitution, it is a federal law making area.” In other words, it is a fall back provision.
• In summary, section 91 lists out areas where the federal parliament gets to make law, also there is a fall-back provision that states that if an area is not covered in the list then the federal level gets to make the law in that area.

Question 41

What is Section 92 of the Constitution Act 1867?

Answer 41

Section 92

gives lawmaking power to provincial legislatures e.g. Education, things of a purely local nature (non-national things) e.g. Health (Provincial Health care) In Canada, the health care system is similar in every province because the Federal government provides money for it. So in a way, the federal level has indirect power (power of the purse)

Question 42

List and explains the facts of the Arbiter of Constitution?

Answer 42

• Arbiter is a person who settles a dispute or has ultimate authority in a matter (like an umpire or referee). Arbitrators are a type of arbiter – a private party who has been hired by contract to hear a dispute and make a final binding decision. Therefore, judges are arbiters and not arbitrators.
• Arbitrators exist because it causes a lot of money to go to court and judges are not experts in all matters
• Canada’s constitution specifies what level of legislature (federal or provincial) can make statutes
• Where a judge acts as an umpire or referee dealing with issues involving Canada’s constitution
• Only people who are affected by statutes can bring the laws to court asking for declaration
• The judge determines whether a statute or act is valid

Question 43

How to determine whether a Statute or Act is valid?

Answer 43

• If a body of government passed legislation on something that is not within their rights, it must be taken to a judge to have the legislation proved of no force and effect
  
  • E.g. A criminal law was made by provincial government, but a private citizen will be affected by the law, and takes it to a judge to be proven invalid
  • E.g. A body of government takes another body of government to court to get the legislation overturned, because it wasn’t within their authority. Federal level takes provincial level of government to court because they made a statute regarding criminal law which is beyond their power
  • E.g. a lady was given a ticket for loitering in Calgary (this is a city by-law; therefore, it is delegated from provincial authority). She admits to being in the area loitering; however, the loitering law was put into effect to stop prostitution (criminal area) – this is a federal area; therefore, she did not have to pay the fine. Ultra vires – acting beyond their powers
• The courts need to find out what the statute/act is about. However, the statute may touch several areas that other governments have authority over. Therefore, the courts must decide what the pith and substance of the statutes are. Pith and substance are determined by asking the question, “What is the statute primarily for?” This is what the courts must decide.
• Validity of a statute can be challenged if a party feels the wrong level of legislature created the statue or part of it. You go to a court to challenge validity. The court can declare all or part of statute to be of “no force and effect”. Do not use the word void.
• A judge determines whether the wrong level of government created a statute based on Section 91 and 92. A valid statute overrides all judge made law. There are 3 main ways it can get to court.

Question 44

Who might bring the challenge to validity to court? It comes under determining whether a Statute or Act is Valid.

Answer 44

1. A citizen negatively affected by a statute that they think is passed by the wrong legislature. E.g. if a statute is passed on making widgets and it negatively affects you because you’re a widget maker, then, you can take the statute to court if you feel it is created by the wrong level of legislature. When a legislative level makes statutes beyond the scope of their powers, it is called Ultra vires – acting beyond the scope of powers.
2. A citizen using the challenge as a defence. E.g. A lady was given a ticket for loitering in Western Canada. She argued the provincial legislature made that statute to curb prostitution, which is part of the criminal code, and thus outside the scope of the provincial legislature. The provincial legislature was trying to curb prostitution by disguising the statute under loitering. The provincial legislature acted in Ultra vires.
3. One of the two levels of legislature can start a “reference”
   
   • One level of government refers a law to their top court in the province jurisdiction (Ultra vires)
   • When the federal level is challenging a provincial statute, the federal level can start the case at the top court of the country, the Supreme Court of Canada. This is called a reference.
   • When a reference is done by a provincial legislature, it starts at the Court of Appeal which is the highest provincial court
   • Reference is called that because the question is referred to a judge. You can’t bring witnesses to a higher court, but for references you can bring witnesses. Other provinces can stand in on references since the reference may affect other provinces.

Exam Question: Arbiter of Constitution

Ultra vires – acting beyond the scope of powers

Intra vires - acting within the scope of powers

Question 45

List and explain facts of Interpreter of Legislation?

Answer 45

• If wording in a statute is unclear and/or ambiguous and it affects you, you can ask a Court to declare how that wording is to be interpreted. You have the right to ask a judge to make it clear what the act/statute means.
• The judge decides this by asking the key question, “what did the legislature intend those words to mean?”
• What evidence can a court/judge use to come to their decision about what a statute means?
  
  • What is apparent on the face of the statute? (Wording and dictionary only)
  • Previous versions of the same stature can be compared to the current version of it.
  • CANNOT use legislative history e.g. (Hansard, white papers). The judge cannot look at Hansard – which records everything that was said in the provincial/federal legislature. The judge cannot look at what the legislators were thinking of/talking about when making the decision. White papers are policy papers about what they should be done in a particular area. The judge cannot look at anything before the statute came into power.
  • The statute makes laws that govern everyday people. Everyday people don’t look at Hansard’s thus a judge should not have to look at those things.
• Courts may use different methodologies to interpret what the legislature intended
  
  • Literal method is used for statutes
  • Liberal method is used to interpret meaning in Constitutional documents but not statutes. The reason being the Constitution is an old document that must govern from when it was created till the end of time.
• There is a chicken and egg type of relationship between case law and legislative law (statutes). Which came first the chicken or the egg? This is because if there is ambiguity in a statute, it must go before the court for clarification. Therefore, we still need the courts because we cannot go back to the legislature for clarification. When a statute is unclear, the court will typically pick out a narrow interpretation (the one with the smallest change/impact) instead of a broader interpretation.

Question 46

List and explain the facts of Protector of Civil Liberties?

Answer 46

• The civil liberties are freedom of expression, freedom of religion, freedom of association, freedom from arbitrary arrest and detention, and freedom from discrimination. When our civil liberties are abused, we can go to the courts
• Since Canada was started, the courts have been protecting our civil liberties. However, in 1982 the courts were given more power to protect our liberties.
• In 1982 Canada’s constitution was revised (repatriated but not changed). Canada had the authority to make changes to its own constitution without the Queen’s approval
• Added the Canadian Charter of Human Rights and Freedoms (aka the charter). This changed our civil liberties as well as the rights of the courts.

Question 47

What are the 5 Charter of Rights and Freedom (aka “the charter” or “the charter of rights”)?

Answer 47

1. Entrenched in the constitution meaning the charter cannot be repealed (revoked or changed) by an ordinary statute or Act of legislature/parliament. Since it cannot be easily changed, government cannot easily abuse our rights. The amending formula (what is takes to change the Charter) is as follows:
   
   1. A majority for the change in the House of Commons
   2. A majority vote from the senate
   3. A majority vote from at least two-thirds (2/3) of the provincial legislatures (7 legislatures) where the provinces represent a total of at least 50% of the Canadian population (i.e. legislature voting in favor represents 50% of Canada’s population)
2. General rule: statutes are not allowed to violate the rights guaranteed to us in the Charter of Rights. A court can decide whether the statute or part of it is invalid and declare that part to be of no force and effect. Therefore, the Supreme Court of Canada (SCC) is enormously powerful, as it has the power to revoke a whole act or just parts of the legislation.
3. The 2 exceptions to the above rule are: Section 33 of the Charter permits legislatures to expressly over-ride the application of section 2 and sections 7 to 15 of the Charter by inserting a Clause at the beginning of a statute (a notwithstanding clause) - expressly means “in writing.” They have to say and make clear that they are over-riding section 2, 7-15. (aka “in despite”)
   
   • Has only been used twice – once is Quebec (when the Charter was created, Quebec was very angry with the federal level, so they used the notwithstanding clause out of spite) and the other time in Saskatchewan (it was an angry political situation, but they stopped using it after about one month)
   • It’s never used; people get angry because they think that their rights are being infringed upon, therefore it is political suicide for the parties that create the legislation
   • Sunset clause provision in section 33: if a legislature puts a notwithstanding clause into a statute, every 5 years they must vote for it again, or else it disappears
4. The rights that are “guaranteed” to us are not absolute. It’s not like they can never be overwritten.
   
   1. Section 1 says that the rights given to us are “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In other words, sometimes minor violations of our rights is allowed if the violation is for the good of society
   2. Everyone has the right to not arbitrarily be detained. E.g. Ontario’s first legislation on drinking and driving. When they started using the breathalyzer, the legislation said that police could detain people and make them blow into the breathalyzer (Charter says we have freedom from arbitrary arrest and detention). Someone got into the situation where they have to blow into it (if you don’t you automatically get charged), and they refused to blow, therefore they got charged. However, this person took it to court because they had been detained initially without reason, but the court ruled that they demonstrably justified that the law is necessary. (“An excusable breach”)
5. What/who does the Charter apply to? The Charter applies to the Government, its laws, and governmental entities (not employment or tenancy situations). Therefore, it applies to legislation. The Charter is in place to protect the people from unfair/inappropriate government. It does not apply to private stuff like a tenant dispute.
   
   1. E.g. Discrimination (on a personal level, i.e. getting fired on account of your race) is in an Act written by legislature. We are not protected by the Charter of Rights and Freedoms (although the Charter was considered when the Act was written)
   2. The Charter has nothing to do with discriminators - applies only when the government is involved

Question 48

What is the role of Arbiter of Disputes between Private Parties?

Answer 48

Quite self-explanatory – not all private parties, but disputes between different parties

Question 49

What do Standards of Proof means?

What are the 2 Standard of Proof in our System?

Answer 49

How convincing evidence must be for a judge to rule in favor of the party that brought the matter to court.

The 2 Standards of Proofs are:

• Civil
• Criminal

Question 50

Differentiate the two Standards of Proof?

Answer 50

CIVIL

Plaintiff -> Initiates the Action

Defendant -> Action taken against

Rulings -> liable, or not liable

CRIMINAL

Crown -> Initiates the Action

Accused -> Action taken against

Rulings -> guilty, not guilty

• For civil matters, if someone is suing, they’re the plaintiff. The person being sued is the defendant. Who has to prove the case in a civil matter? The plaintiff must prove their case (be the convincer) i.e. the person who starts the action has the burden of proof
• Who has to prove the case in a criminal matter? The burden of proof is on the Crown Attorney to prove the accused guilty

Question 51

List 5 facts about Civil Standard of Proof?

Answer 51

CIVIL - on a balance of probabilities

• Not as difficult for a plaintiff to prove their case as compared to the crown
• The judge sees all the evidence, then weighs the evidence in their mind and decide who they think is correct. I.e. who do they believe more?
• Leads many people settle out of court because they don’t want to risk it
• System geared towards settlement because do you want one judge determining your future? If you settle, you don’t have to admit you are liable
• You can settle at any time up to a judgment
• Defendant must testify

Question 52

List 5 facts about Criminal Standard of Proof?

Answer 52

CRIMINAL - beyond a reasonable doubt (doubt any REASONABLE person would have) — judge cannot have ONE single doubt

• The Crown Attorney must prove the case beyond a reasonable doubt
• The crown must eliminate every reasonable doubt from the judge’s mind
• You cannot convict if there is one reasonable doubt
• This is difficult to do
• We would rather have guilty people go free than innocent people go to jail.
• Accused does not have to testify

Note: NOT GUILTY DOES NOT MEAN INNOCENCE – IT MEANS THERE WAS REASONABLE DOUBT

***CANNOT CONVICT IF THERE IS REASONABLE DOUBT***

May be the same facts, but different rulings (guilty vs liable)

Example: OJ Simpson

• Criminal perspective – there was a reasonable doubt because the witness was caught lying about something else, so there was doubt that the witness may be lying about his testimony
• Civil – sued by deceased’s parents for the loss of a loved one – not tried for murder, therefore was found liable

Question 53

What is Res Judicata?

Answer 53

Res Judicata - a matter adjudicated

• Every legal system needs rules that say that after an amount of time the matter is closed. (Case decision is final)
• You only have so much time to appeal, so be ready when you go to court. You are told beforehand how much time you have to start the appeal. If you do not start the appeal process within the specified time, then the matter is Res Judicata.
• When the period has expired, Res Judicata applies (no questions asked, too bad so sad). Even if you found better evidence, it doesn’t matter
  
  • You will have to have a good reason to re-open a matter after you let the time pass
  • In criminal matters, there is a proceeding that will allow people in jail have their matter re-considered to get them out of jail. It is extremely complicated and hard to get
  • Civil matters (i.e. when you sue someone) you can RARELY get the case re-opened (never)
  • False imprisonment (DNA test) can go back to court after res judicata – rare

Question 54

What is Adversary System?

Answer 54

• In civil disputes, it means that it is up to the parties, not the court to start and prosecute litigation to investigate the pertinent facts and to present proof and legal argument to the decision-making tribunal. It is about enlightened self-interest (selfishness) and fits with the capitalist approach
• The courts function, in general, is limited to adjudicating the issues given to it by the parties or the proof presented by them and to apply the proper procedural sanctions upon the motion of a party.
• Presentation and prosecution are done by the party with the court acting as a passive arbiter. Even when the government is involved in public law disputes, the government representative or group is treated as an individual
• Party Presentation – It is the plaintiff’s job to bring witnesses to court and make sure they present their evidence, etc.
• Party Prosecution- It’s up to the crown/plaintiff to push the matter ahead or to the next stage of the litigation to get to the conclusion of a judge

Question 55

Explain the Court Systems in Canada (Federal & Manitoba Provincial Systems) and their hierarchy?

Answer 55

• In England they have a unitary system (only one level of government), the UK parliament deals with everything
• In Canada, we have a federal system (2 levels) because when Canada was formed, we needed to maintain some things that are very specific to a given area
• Hierarchy of courts (England and Canadian system is based upon this)

Supreme Court

Court of Appeal

Trial Court

Question 56

List facts of Trial Court and list its 2 types?

Answer 56

• A trial court is usually where the matter is started (a lawsuit is the same thing as an “action”). You start an action at the trial court level
• There is only one judge. There may or may not be a jury. The judge has two main roles:
  
  • Findings of facts – what are the facts?
  • Findings of law. Once the facts are determined, what law applies to the facts?
• There is one judge who hears 2 kinds of findings

1. A finding of facts: from the plaintiff, defendant and witnesses
2. A finding of law

Usually, there are 2 stories therefore the judge has to find the facts. The judge has to figure out what really happened. Then, the judge says, “Based on these facts, this is the law.”

• Sometimes the facts are the same according to both/all parties; however, it is the law that is in question
• Witnesses only get seen in trial court
• A court of first instance or original jurisdiction refers to trial court

2 Types of Trial Courts

• Superior Court
• Inferior Court

Question 57

Name and define 2 types of Trail Court?

Answer 57

Superior Court:

the judge can deal with any matter unless a statute prohibits it. Lawyers must address the judges as “My Lord/Lady.” Lawyers in a trial must wear robes. E.g. Court of Queen’s Bench

Inferior Court:

the judge can only deal with matters that a statute says they can deal with. The judge is called “Your honor.” Robes are not worn. E.g. Small claims court, Provincial Court

Question 58

What is a Court of Appeal? List some facts?

Answer 58

• In a Court of Appeal, there are 3 or 5 judges hearing the matter all at once (needs to be an odd number). Majority of judges’ rule.
• Multiple odd numbers of judges (at least 3) to ensure there is a majority vote.
• No witnesses, only a typed written statement of the transcript of the trial. Because of this, judges in Court of Appeal are reluctant to make changes in findings of fact from the trial because they didn’t see the witnesses and because they can’t read emotions and sarcasm in a written statement. E.g. “Yeah right, I killed someone!” Sarcasm doesn’t read well
• The key role of the Court of Appeal judges is in findings of law – what law applies to facts revealed in the trial court.
• Typically, a matter does not start here, it gets to the court of appeal through an appeal. The person who makes the appeal is the appellant and the other person is the respondent
• It is rare for there to ever be witnesses in a court of appeal. All the judges get transcripts from the original trial. This is not always true in criminal situations; we are talking about civil law.
• Cannot make changes to the “finding of fact”. Most appeal courts don’t deal with the parties wanting to change the facts. It is rare, but possible to change the facts. 9/10 times when there is new evidence they won’t go back and change the facts. (It is more likely to happen if people’s lives are involved though)
• Courts of Appeal typically deal with “findings of law” not questions of “findings of facts”

Question 59

What is Final Court of Appeal?

Answer 59

• If you lose at the Trial Court and the Court of Appeal, then you go to the Final Court of Appeal
• Minimum number of judges is 5 and a maximum of 9 judges

Question 60

What can a Court of Appeal do?

Answer 60

• They can dismiss the appeal
• They can allow the appeal
• They can reverse the trial judgment
• They can change the trial judgment
• Court may decide that it needs to be sent back to trial (re-trial). This is awfully expensive!
• When you appeal your fine (amount of money you’re forced to pay), they could increase your fine even if you appealed to lower it.

Question 61

What is the Supreme Court? List some facts?

Answer 61

• The Supreme Court of England is called the “House of Lords.” In their parliament they have an upper house where the Lords sit. Multiple judges either 5, 7, 9 judges deal with one case. (They are “brilliant” minds)
• If you lose at the Trial Court and the Court of Appeal, then you go to the Final Court of Appeal
• Minimum number of judges is 5 and a maximum of 9 judges
• The Canadian Court system is a little different (we have 2 levels of governments). Each province has different names for their courts; however, they have the same systems, but for this class we will refer to the Manitoba system.

Why is the Canadian system more complicated? Because of the Constitution

Question 62

What do you know about the Constitutional Framework of the Courts?

Answer 62

1. Section 101 of the Constitution Act, 1867 states two main things:
   
   1. Federal Parliament can create and maintain a general Court of Appeal for Canada
   2. Parliament can establish any additional courts for the better administration of the laws of Canada. There are four different courts in the federal system of courts (all created by Federal Parliament through section 101)
2. Subsection 92(14) - Provincial legislatures can create, maintain, and organize Provincial courts of civil and criminal jurisdiction. The provinces can create courts that can deal with criminal cases, but the criminal law is made federally. The provincial courts just apply/uphold the criminal law.
3. Section 96 - gives the federal cabinet the ability to name judges in every Province’s Courts of Appeal and in superior Provincial Courts. Cabinet refers to the Prime minister and all the ministers appointed by the prime minister. By virtue of section 96, the Federal Cabinet appoints (pays) the judges in the court of appeal in each province. Additionally, the FC appoints judges to the highest trial court (Queen’s Bench). Provincial cabinet can only appoint judges in the inferior court.

In Canada we have 2 court systems (provincial and federal). However, the Supreme Court of Canada (SCC) makes final decisions on both federal and provincial levels/courts

Question 63

Section 101 of the Constitution Act, 1867 states two main things. What are they?

Answer 63

Section 101 of the Constitution Act, 1867 states two main things:

1. Federal Parliament can create and maintain a general Court of Appeal for Canada
2. Parliament can establish any additional courts for the better administration of the laws of Canada. There are four different courts in the federal system of courts (all created by Federal Parliament through section 101)

Question 64

What does Section 92 (14) say?

Answer 64

Subsection 92 (14) of Constitutional Framework of the Courts -

Provincial legislatures can create, maintain, and organize Provincial courts of civil and criminal jurisdiction. The provinces can create courts that can deal with criminal cases, but criminal law is made federally. The provincial courts just apply/uphold the criminal law.

Question 65

What does Section 96 say?

Answer 65

Section 96 of the Constitutional Framework of the Courts

gives the federal cabinet the ability to name judges in every Province’s Courts of Appeal and in superior Provincial Courts. Cabinet refers to the Prime minister and all the ministers appointed by the prime minister. By virtue of section 96, the Federal Cabinet appoints (pays) the judges in the court of appeal in each province. Additionally, the FC appoints judges to the highest trial court (Queen’s Bench). The provincial cabinet can only appoint judges in the inferior court.

Question 66

How does the Provincial Court System hierarchy look like?

Answer 66

Final Court of Appeal

• Supreme Court of Canada

Court of Appeal

• Manitoba Court of Appeal

Trial Courts

• Provincial Court of Manitoba (inferior)
• Manitoba Court of Queen’s Bench (superior)
  
  • Small Claims Court (inferior)

Question 67

What are the 2 main types of Courts? Define each.

Answer 67

There are 2 main types of courts:

1. Superior court - a court that has jurisdiction in every field of law that is not specifically denied to them by a statute. The Superior Court of Record – Has judges that can deal with any type of law they want except areas denied from them by a statute
2. Inferior Court - has jurisdiction only regarding matters that are in a statute. The Inferior Court of Record has judges that can only deal with matters set out in statutes

Question 68

How many Trial Courts do we have in Manitoba? Name each?

Answer 68

In MB we have 2 trial courts.

One is superior and the other is inferior.

Question 69

List some facts of Provincial Court?

Answer 69

• Provincial Court is an inferior trial court, the judge in this court can only hear matters that are given to them in the Provincial Court Act. The provincial statute created it. Judges are selected by the provincial cabinet (Salary $90,000 - $110,000)
  
  • 3-4 dozen judges located in Winnipeg and around the province (full & part-time)
  • Judges travel around the province and the court is set up in town halls or community centers
  • Deal with small private and civil matters. (Cases heard here are not particularly important) i.e. if you sue someone you would not be using this court.
  • The provincial court does not always appeal to the Court of Queen’s Bench. Sometimes it goes to MB Provincial Court of Appeal
  • There are 2 main divisions of the provincial court:
    
    • Criminal Division
    • Family Division

Question 70

What are the 2 main divisions of Provincial Court? List facts of each?

Answer 70

There are 2 main divisions of the provincial court:

1. Criminal division judges hear criminal cases of almost every kind (except the most serious, like murder). People charged with murder will first be seen here for bail (released pending trial). – no jury trials

• Indictable Offence – have 3 options:
  
  • Provincial court with no jury and 1 judge
  • Court of Queen’s Bench with no jury and 1 judge
  • Court of Queen’s Bench with jury and 1 judge
• “2 years less one day”
  
  • Less than 2-year sentence – get sent to provincial jail
  • 2 or more-year sentence – get sent to federal penitentiary

1. Family Division deals with 2 main areas: young offenders (minor under the age of 18), and certain types of family law and matters for people who live outside of Winnipeg and Selkirk area.
   
   • Restraining orders, child support, spousal support, custody
   • The court cannot hear divorce/adoption or splitting up property
   • DIVORCE – only about allowing people to get married again, nothing about who gets what

Question 71

List some facts of Small Claims Court?

Answer 71

• It is an inferior specialty court. It’s area of power is within the area of the Court of Queen’s Bench
• You don’t need a lawyer (relaxed court procedure), you can do it yourself – very informal – why waste money on a lawyer when suing for a small amount
• Deals with contract disputes, debt owing, damages
• They have hearing officers (like a judge). Hearing officers do not have to be lawyers. In the other courts judges have to be lawyers i.e. only lawyers can become judges
• If you lose and want to appeal, then you need permission from MB Court of Queen’s Bench to appeal (leave to appeal):
  
  • You can not appeal the findings of fact (rare)
  • You can appeal the laws and jurisdiction. Either case, you must have a leave to appeal permission from the MB court of Queen’s Bench.
  • If you lose in the small claims court, most of the time you have no right to appeal. There are only 2 exceptions to appeal; for both you have to ask for a leave of appeal from the MB Court of Queen’s Bench. The appeal is only granted if the small claims judge didn’t have jurisdiction to make a decision. The other time you might be allowed to appeal is if it involves mistakes in findings of law. There is almost no appeals from small claims court anymore because of the requirement to get permission from Court of Queen’s Bench.
• For Autopac claims, you need to go to small claims court. When the court says each person or 50% or more at fault, you can go to small claims court to argue that you are not that specific percentage at fault

Question 72

List some facts of Court of Queen’s Bench?

Answer 72

• A superior court created by a MB statute and its judges are all appointed by the federal cabinet.
• Can hear anything unless a statute tells them they cannot (civil and criminal)
• They have virtually unlimited jurisdiction
• Primarily trial court
• Queen’s Bench has 2 divisions (because domestic/family disputes are dealt with differently):

1. General Division (matters other than family law)
2. Family Division - divorce, adoption, property division, etc.

• They have 3 permanent locations
  
  • 1 in Winnipeg
  • 1 in Thompson
  • 1 in Brandon
  • Court houses in Dauphin & Selkirk
• Judges do not travel to community centres etc. such as the Provincial Court of Manitoba
• There are other non-permanent locations throughout the province
• There are fewer Queen’s Bench judges than Provincial Court judges. Judges in small claims court are called “hearing officers” and have decision making power but are not appointed by cabinet
• Queen’s Bench has authority over wills and estates (some provinces have surrogate courts to look after this)
• Judges do some travel, but not as much as Provincial Court Judges
• Judges make between $160,000-$200,000

If you are getting sued and you want to appeal, where do you go from the Court of Queen’s Bench?

• If it is a civil matter, then you can appeal as a right. The case then goes to the Court of Appeal
• For Criminal Cases, you can appeal as a right, if the appeal deals with a question of law
• Judges are appointed by the federal cabinet and paid by them; however, other court staff is chosen and paid by the province.
• If you are unhappy with the decision made, then:

Question 73

If you are getting sued and you want to appeal, where do you go from the Court of Queen’s Bench?

Answer 73

• If it is a civil matter, then you can appeal as a right. The case then goes to the Court of Appeal
• For Criminal Cases, you can appeal as a right, if the appeal deals with a question of law
• Judges are appointed by the federal cabinet and paid by them; however, other court staff is chosen and paid by the province.
• If you are unhappy with the decision made, then:
  
  • If the matter involves only a question of law (the judge’s interpretation), you can appeal as of right (no permission required). If you lose a case in the Court of Queen’s Bench, then you can appeal as of right to the MB Court of Appeal.
  • If the matter involves a question of findings of fact, you can only appeal if you are granted leave to appeal (you must ask for permission)

Question 74

List some facts of the Manitoba Court of Appeal?

Answer 74

• If provincial legislature refers a trial, it goes to the highest court in the region, which is the Manitoba Court of Appeal
• Only one location in Winnipeg. Appointed federally.
• 3 Judges minimum form a quorum”. This is to have anything heard you need a quorum. Sometimes there are 5 or 7, but usually it is 3 (need minimum number to do business). When there is a split decision, majority rules.
• It is primarily an appeal court for civil and criminal matters. The one time it acts as a trial court is when the provincial cabinet refers a constitutional question dealing with new/old legislation. This doesn’t happen very often; it is called a reference.
• There are no witnesses – transcripts only from the trial
• Judges in MB court of appeal can:
  
  • Deny the appeal – lost in Queens’ bench, lose here
  • Allow the appeal – lose in Queen’s bench, win here
  • Vary/change the decision or fine (not always in your favour) i.e. Change sentence term and fines
  • Order a new trial – sent back to trial- with new judge
• If you lose a civil matter at this level, you can only appeal to the Supreme Court of Canada if you are given a leave to appeal from the Supreme Court (This is NOT part of the provincial court system). You are only given permission if it is a matter of public national importance (not important to Manitoba only).
• There is criminal and civil appeal

Question 75

How does the hierarchy of the Federal Court System look like?

Answer 75

• Supreme Court of Canada
• Federal Court of Appeal (FCOA)
  
  • Tax Court of Canada (TCC)
• Federal Court (FC)

Question 76

List some facts of the Tax Court of Canada?

Answer 76

• Superior Specialty Trial Court (no appeals)
• Statute says it’s only there to deal with internal appeals of Canada Revenue Agency (Taxpayers who are fighting their tax bill)
  
  • Income tax, GST
• Informal court, so don’t need a lawyer in most cases
• An appeal from here goes to Federal Court of Appeal
• Judges of this court get flown into different provinces (same as FCTD, FCAD)
• One judge, no jury

Question 77

List facts of Federal Court?

Answer 77

• Superior Trail Court
• Civil and Criminal division
• Judges are chosen by the feds
• Similar to the court of Queen’s Bench
• Never deal with family law
• One judge and no jury
• Some matters have to be heard here, however, some can be heard at the Court of Queen’s Bench
• They must hear matters of:
  
  • Claims against the federal government
  • Shipping and navigation
  • Immigration
• Most people choose the court of Queen’s Bench because they are familiar with it (rules are different in Federal Court and Court of Queen’s Bench). However, if you want a ruling that is binding throughout the country, you come here
• Same appeal rights as Queen’s Bench to MB Court of Appeal
• Civil matters can be appealed as a right
• Criminal, it’s a right; the question of law, it needs a leave of appeal if it’s a question of fact

Question 78

List some facts of Federal Court of Appeal?

Answer 78

• Superior Appeal Court
• Same as MB Court of Appeal
• Quorum: 3 judges
• Same rules apply for appeal to the Supreme Court of Canada
• SCC or Appeal court can give leave of appeal

Question 79

List facts of the Supreme Court of Canada?

Answer 79

• Only 9 judges for all of Canada
• Takes 5 judges for a quorum. The Chief justice chooses if it will be 5, 7 or 9 judges. Recently, all 9 judges have almost always been sitting during the appeals
• In requests for leave to appeal, only 3 court justices are required
• Judges (in all the courts) cannot be fired by the government who hired them
• There is a “judicial council” who analyzes complaints made on judges
• The Judges are only in Ottawa and they only work for 3 sessions (3 times a year)
• Court is primarily an appeal court, but occasionally it will act as a trial court
• If the Federal Cabinet refers a constitutional matter to it, this court acts as a trial court
• The Supreme Court Act states that 3 of the 9 judges must be from Quebec (Because the province of Quebec has a completely different civil court)
• The following are informal rules that are generally followed:
  
  • 3 judges from Ontario
  • 2 from Western Canada
  • 1 from Atlantic/Maritime Canada

Question 80

Who may sue?

Answer 80

• Who can start an action? Not everyone has the legal capacity to start an action. A corporation can sue, but an incorporated club can’t sue in it’s own name.
• Most adults can sue; however, if an adult is mentally incompetent/is under the age of majority, they cannot commence that action themselves, the court will require another person involved (called a litigation guardian).
• Also, it is the same circumstance for someone who is under the age of majority (18 in Manitoba). The age of Majority is the age in which you can look after your own affairs. The age is chosen provincially.
• The Office of the Public Guardian and Trustee (OPGT) looks after people under the age of majority and the mentally incompetent
• If a group is not incorporated the persons involved can sue or be sued

Question 81

What do you mean by Standing to Sue?

Answer 81

• If you have enough of a connection to sue. You’re not allowed to sue if you don’t have standing to sue. E.g. if something is wrong, but it doesn’t impact you, then you can’t sue.

Are you affected more than the general populous? If yes, you have special rights:

• E.g. A resident neighbour pollutes a City Park. The city has the standing to sue. Can a regular citizen sue? Do they have to have standing? It depends, if they are more affected than all other citizens then they have standing
• If not, you have no standing to sue
• Courts are reluctant to permit individuals to commence legal action if their rights are no greater than the rights of the general public

Question 82

What do you mean by Class Actions?

Answer 82

• It is where one person or a small group of people are permitted to start a lawsuit on behalf of an as yet unidentified group of people with a common problem (a class)
  
  • Suing a cigarette company on behalf of people with lung cancer
  • Breast implants was a huge issue for class actions
  • Ford Pinto explosions
• A small group or one person can carry forth the liability of a larger group
• Saves money because not everyone is fighting. But, sometimes each person wants to fight their own battle
• Sometimes when the company is found at fault, each individual victim has to come in and fight for their own damages, rather than each receiving equal damages. E.g. “Have you suffered from mesothelioma? You may be eligible for financial compensation” advertisement

Question 83

What do you mean by the Settlement Out of Court?

Answer 83

• The Private/Civil law side of our system encourages people to settle out of court. Note that only a small number of claims go to court. One of the ways this is encouraged is the lower standard of proof (balance of probability)
• Vast majority of all lawsuits that are started are settled without a trial. Probably around 90% (profs guess)
• Settlement is where one of the parties agrees to pay money or do something, and in turn the other party waives the right to pursue legal action
• This saves money; cost and time are important factors
• Case laws tell you the likelihood that you are going to lose/win. Is it worth continuing? Should we cut a deal?
• Can be done at any time until the verdict is made

Question 84

What do you mean by Costs?

Answer 84

• In Canada it is at the discretion of the judge to award you “costs” (the cost of the trial). There are two types of costs that can be awarded to the winning party. You should always ask for costs.
• If you ask for costs, it means you’re asking for party and party costs.

Question 85

What is Party & Party Costs?

Answer 85

• A monetary award that shifts some of the costs of litigation from the winning side to the losing side according to a published scale of fees. This helps in limiting frivolous lawsuits.

Party & Party Costs

=

+ Disbursement

+ Part of Opposition Legal Fees (Costs)

+ Tariff

Question 86

What do you mean by Disbursements?

Answer 86

• Disbursements are out of pocket expenses e.g. filing fees, getting witnesses to the trial, cost of expert reports, etc.
• Do not amount to what the winning party paid their lawyer (but it’s a significant contribution)
• The judge can award disbursements meaning the losing party must pay them
• There is a chart that indicates how much has to be paid an hour for legal fees

Question 87

What do you mean by Part of Opposition Legal Fees?

Answer 87

• So, not only do you lose the case and have to pay your lawyer, you have to pay some of the costs incurred by the other party. 90% of the time costs are awarded

Question 88

What do you mean by Chart of Expenses?

Answer 88

• There is a chart that indicates how much has to be paid an hour for the legal fees. The winning party will provide a list of all expenses and there will be a tariff for different dollar values
• Party and party costs do not include legal fees of the winning and losing party. Each is still expected to pay those fees themselves

Question 89

What do you mean by the Soliciter-Client Cost?

Answer 89

• Cost as between a solicitor and his/her own client. This is rarely awarded.
• The losing party must pay the entire legal fees and disbursements of the winning party.
• This is awarded when:
  
  • If the losing party acted fraudulently (says something knowing it is a lie), then if the court decides that the person is acting in a fraudulent manner, the judge will award you solicitor-client costs if you ask for them.
  • If it is built into the contract

Question 90

What do you mean by Fee Agreements?

Answer 90

If you go to a lawyer, they may charge different types of fees:

1. Transaction fee (a fixed fee) is typically used when transactions always proceed the same way e.g. buying a house
2. Hourly rate – how much time is spent on a case determines the total cost
3. Retainers: a cost held by the lawyer for the client to put money in. Cash amount paid to a lawyer upright that sits in a trust account. As lawyer does the work, at logical intervals of time, the lawyer bills and withdraws from the retainer account. Different lawyers have different requirements depending on the case. The norm is to quote an hourly rate and retainer, which will be drawn from as invoices are given. Proper business practice, not because your lawyer doesn’t trust you. If the retainer gets low the client will be asked to replenish the trust account. The lawyer needs assurance that the money is there for the work that they do.
4. Contingent Fee Agreement – this is an agreement (contract) between the lawyer and the client that is contingent (may/may not happen). The lawyer will receive no legal fee unless the money is successfully collected from the other party. Typically, the lawyer will get a percentage (10-20% if no trial; 25-30% if trial) of the successfully collected damages (money). If nothing is collected, the lawyers will get nothing. Note: The client is still expected to pay out of pocket expenses (e.g. court filing fees). Winning only means nothing; only winning and collecting the money is good.

Question 91

What do you mean by Fee Disputes?

Answer 91

• There are two ways to go about having the bill reduced (aka taxing the account). You are advised to talk to the lawyer first before taking it anywhere.
• If that does not work, then take it to the Law Society of Manitoba.
  
  • They will first try to mediate the matter. A lawyer from Law Society of MB will act as a mediator
  • Secondly, formal process with a hearing. The Law Society can make a binding decision to reduce the bill.
  • Lastly, take it to the Manitoba Court of Queen’s Bench. Hearing with an official called a Master of the court (level below a Court of Queen’s Bench judge)

If you have no money and you want to sue, you would have to enter into a contingent fee agreement

• A contingent fee agreement is a contract between a lawyer and client. The lawyer agrees to pursue the damages, and they will only get a fee if they successfully collect the money (it is a set percentage)
• Risk to the lawyer. The Client has to look after disbursement fees
• Lawyer’s typically ask around 10-15% for an out of court settlement and 20-30% for an in court settlement
• Mostly only for personal injury claims (not including automobile accidents)

Question 92

List and define different types of Lawyers?

Answer 92

• Barrister is a court room lawyer (Litigation lawyer)
• Solicitor is a paperwork lawyer
  
  • In Canada, you have a choice of which you want to be, and you can also do both if you want.
    
    • In England, you are either a Barrister or Solicitor – you can’t be both.
• Attorney-at-Law is just another name for a lawyer

Question 93

Define the Legal Aid System?

List 2 types? List facts of each?

Answer 93

Government funded concept that provides free or reduced legal representation in certain circumstances (low income). The 2 types are:

1. ​Legal Aid Clinic System
   
   • You are assigned a lawyer from legal aid Manitoba with no choice. Paid salary from government, pension & benefits.
   • System where government hires lawyers to provide free legal representation to some people
   • You only get legal aid if (cannot be used to sue someone):
     
     • You have been charged with a criminal matter and you will likely go to jail, AND if you have below a certain amount of income and assets
     • Family law: Spousal, child protection, child support, protection order etc.
2. Judicare System
   
   • You can ask any lawyer to represent you on a legal aid basis if you quality. Can go to public/private lawyers.
     
     1. Legal aid government office will pay the lawyer when certain things are done. It usually always less than normal pay
     2. Pro bono means doing legal work for free
     3. Lawyers do this for exposure
     4. Lawyers may do this out of interest

Question 94

What are the 4 stages of the Court Process?

Answer 94

There are 4 stages: PDPT

Pleading,

Discovery,

Pre-trial,

Trial.

Question 95

List facts about the Pleading Stage of Court Process?

Answer 95

• Pleadings: the documents filled by each party in a legal action (lawsuit), providing information they intend to prove in court
• Types of Pleadings:
  
  1. Statement of Claim: first pleading
     
     • It is a formal written allegation of parties; gives basic facts of case e.g. names and addresses of the parties, remedies that the plaintiff is seeking (damages and costs), the basics of the case (breach of contract, inappropriate will), material facts.
     • It states: plaintiff, defendant, remedy, material facts, what the claim is about
     • It is filed in the Court of Queen’s Bench, gets filed and served personally to defendant. The plaintiff does not serve the papers directly. A neutral third party, called the bailiff, serves the paper
     • Once it is served, the defendant has a set number of days (20) to respond with a statement of defence. If the defendant fails to respond then, default judgement paperwork can be filed
     • Costs $350-$400 to file this claim
  2. Statement of Defence
     
     • Sets out what parts the statement of claim are agreed to e.g. name, address, date, and amount etc.
     • Sets out the things they dispute/do not agree with.
     • Set out what they say happened/their argument. Give specifics that will support your position/defence
     • Papers get served to the plaintiff’s lawyer.
     • Filed in the Court of Queen’s Bench
  3. Reply (optional)
     
     • Final pleading filed by the plaintiff’s lawyer. 10 days to file after Statement of Defence
     • It is a reply to something new in the defendants statement
     • Typically 3-4 months for the entire pleading stage to be completed
     • Filed in the Court of Queen’s Bench and then served to the defendants lawyer
     • Only happens 10%-20% of the time

Question 96

List facts about the Discovery Stage of Court Process?

Answer 96

• The discovery stage begins once all the pleadings are done/closed
• Two Main Components:

1. Affidavit of Documents: applies to both the defendant and the plaintiff’s side (KNOW THIS)
2. Attached to this document are ALL relevant documents, privileged documents, and any reproductions of documents that have been destroyed. You must swear that these are ALL the documents
3. These documents from both sides are exchanged, the lawyers get together and look at all the documents.
4. Privileged items are not included but specified that they are privileged. Zero surprises should happen in court.
5. Examination for Discovery (KNOW THIS PROCESS & THE 3 REASONS FOR IT)
   
   1. Plaintiff, defendant and their lawyers meet in a boardroom with a court recorder. Evidence is given under oath without a judge.
   2. Official examiner (third party) is there to record. Therefore, there should be no surprises at trial
   3. Plaintiff’s lawyer can cross examine the defendant under oath and vice versa
   4. 3 main reasons for Examination for Discovery:
      
      • Getting to the facts so that there are no surprises. You know what the other side’s case is about very clearly. In the pleadings it was very basic, but now that we’ve asked more questions, we know it better. Allows you to completely understand the other side’s case
      • Allows you to assess the credibility and demeanour of the other person as a witness as well as your client’s credibility. This gives the lawyers the chance to learn their client’s strengths and weaknesses as well as the opposition’s client. It becomes clearer if the matter should be settled. Settlements happen at this stage when someone makes an error in their story or discloses something that catches the proper person at fault
      • To try to get admissions from the other side under oath. Hoping to get admissions that could be bad for the other side’s case i.e. to catch inconsistencies.

Question 97

List facts about the Pre-Trial Stage of Court Process?

Answer 97

• Meeting that the plaintiff’s lawyer schedules with a judge and the lawyers, held in the judge’s chamber (office)
• Judge determines if there is a possibility for settlement
• Judge asks how many witnesses, determines how much time will be needed
• Come to a consensus about how long the trial will be (in days).
• The judge then calls the administrator at the court of Queen’s Bench to find the next suitable court date
• The pre-trial judge cannot be the trial judge to eliminate bias
• Usually for a one day trial, the trial is 1-2 months away

Question 98

List facts about the Trial Stage of Court Process?

Answer 98

• Lawyers introduce themselves and their clients to the judge
• Witnesses cannot be present in the courtroom until after they testify (unlike in TV)
• The judge has just seen the pleadings, not the affidavit of documents

1. Opening Statements
   
   • Give a “road map” of what the judges will see in the trial
   • Sometimes judges don’t want/allow opening statements
   • Plaintiff’s lawyer, then the defendant’s lawyers
2. Plaintiff’s Case
   
   • Plaintiff’s lawyer calls their witnesses (95% of the time the plaintiff goes first)
   • Plaintiff’s lawyer goes through direct examination, meaning that the plaintiff’s lawyer is not allowed to ask leading questions (a question that suggests an answer)
   • Then the defendants lawyer get to conduct a cross-examination where leading questions ARE allowed
   • Plaintiff’s lawyer can then re-direct only on new things brought up in cross-examination (no leading questions in redirect) (often times, no re-direct occurs as nothing new is brought up)
   • Once all witnesses have been called, the plaintiff’s case is done
3. Defendant’s Case
   
   • Same procedure as with the plaintiff’s case
4. Legal Arguments
   
   • Regarding facts and law. Why/why not should the judge consider certain facts?
   • Each side gets their own side – judge asks if anything new related to the case
   • Plaintiff then defendant
5. Judgment
   
   • The judge can reserve their judgment i.e. give it another time. They give you a time frame e.g. days, weeks, or months. In these cases, the judge contacts lawyers to make them aware of their decisions and send out written justification rather than getting everyone to reconvene in a trial setting to voice their decision
   • The judge can give judgment immediately or after a short recess

Question 99

What is an Appeal Process?

Answer 99

• Asking some higher level to review an issue and correct/change a decision
• Must be commenced within a defined time, or else the matter is res judicata (a matter that has been adjudicated by a competent court and may not be pursued further by the same parties)
• In a civil case it can be appealed as a right

For matter under $50,000 there is another process where you can skip the discovery stage. It is called the expeditory process

Question 100

What is a Judicial Review?

Answer 100

• Target at administrative decision (decisions made by boards, commissions or other subordinate entities) are final i.e. no appeals
• Judicial review is where a board/tribunal has made a decision. For most boards/commissions/tribunals, there will be a rule in the statute that says there is no appeal. But when a decision is made by a tribunal, courts have the power to review the issue to decide whether the issue was dealt with properly. If they consider that the process/procedure was unfair, then they will send it back for different members of board to deal with. Note: It is about whether the process was fair, not about investigating the decision made. It is not an appeal.
• Judicial review is when a judge reviews a case to decide if there was a flaw or some element of unfairness; may be re-tried
• Bases for judicial review:
  
  • Lack of authority of the subordinate entity (acted in an Ultra Vires fashion)
  • Procedural irregularity of the subordinate entity
  • Procedural unfairness

Question 101

What are Business Liabilities?

Answer 101

• If you are an owner of a business, then you’d like to know that if things go bad, are you liable?
• Liability is what someone is responsible for. How much are they liable for? Sometimes the owner is personally liable
• Liability is the number one concern of lawyers

Question 102

What are Tax Liabilities?

Answer 102

• Income tax, GST, PST. If you have employees then, you have to contribute to the Employee Canadian Pension Plan (CPP)

Question 103

What is Vicarious Liability Rule?

Answer 103

• In circumstances where the employer sends employees out to do work, there is a rule that applies to all employers.
• Employers are vicariously liable for the torts committed by their employees in the course of their employment; important to know who the employer is.
  
  • E.g. Negligence - an employee and employer can be held liable if the employee does damage while on the job (the more employees you have, the more the risk of liability)
• Tort liability – if I own a business and I operate it and I do something in the course of doing this work and I am careless and cause harm/damage to property or a person; they will be sued
• Vicarious liability – both the Employer and the Employee will be held liable

Question 104

List facts of Sole Proprietorship?

Answer 104

• Are governed provincially
• The textbook definition of sole proprietorship is an unincorporated business owned by a single individual
• A sole proprietorship is the one person owns an unincorporated business.
• A business organization where there is only one owner of the business (the simplest form of business operations)
• Since you are the sole owner all profits belong to you, but all debts, obligations and liabilities that arise are also personally owned by the sole proprietor (unlimited personal liability)
• When you sue a sole proprietorship you are suing the person that owns the business (if they have a separate name, then you sue the name of the business and the name of the owner)
• The owner can have any number of employees or the owner may be the only one in the business and he is not considered to be an employee (for tax purposes)
• There are no rules on how big a Sole Proprietorship can be in terms of income and employees
• The name of the business often (not always) has the name of the owner in it
• Name of the business must be registered provincially
  
  • Within 90 days of starting you business ($45)
  • Re-register every 3 years
  • Cheap to register provincially compared to registering a trademark nationally
  • No lawyers are required
• The place where you register is called Companies Office. If your surname is the company name you don’t need to register it; however, if there is anything else aside from the surname you must register it. Registration avoids hassle
• Aside from registering the name, that’s all you have to do to create a sole proprietorship (you must follow any industry rules, but that’s not involved in creating the business)
• Can have same name between provinces if it isn’t trademarked, but cannot copy the business

Question 105

What are the advantages and disadvantages of Sole Proprietorship?

Answer 105

Advantages

• Very easy to set up and properly start it. There is almost none to very little legal requirements except registering the business name
• Very fast and cheap. $105 reserving and registering with the name.
• Virtually no legal formalities
• All profits go to the owner

Disadvantages

• All business debt to owner. When you sue a sole proprietor, then you are suing the business and the owner
• Unlimited personal liability and legal obligations - If your employees do something that causes damage the owner is personally liable (can even force your house to sale)
• Low capital access; only owner’s money

Question 106

What do you know about Liability?

Answer 106

• Called unlimited liability
• The owner is not treated as a different entity than the business
• How can you limit the liability?
  
  • Liability insurance - cost varies expensive, spectrum is vast (may not be an issue, depends on the business). You don’t owe the money because the insurance pays the money. Buy a lot of whole life insurance with an investment aspect
  • Waiver can limit the liability through contract – customer sign contract (courts hate this, so try and get around it any way possible – consult a lawyer)
  • *Harrison does not agree with this* Creditor Proofing - goes by provincial rules. Married couple. 3 years for Common Law partnership in Manitoba; what if you transfer all the assets to your spouse?
    
    • This is not a way of limiting your liability. You still owe, but you have nothing to give. It just makes it difficult to collect from you.
    • You cannot do this once a liability has been committed –> that would be fraudulent
  • RRSP’s are like pensions now and they cannot be used for debt obligations
  • They are common and have no specific size of business