Unit 3 Review Flashcards
The differences between Criminal Law and Civil Law chart. Protects Initiates Punishment Burden of Proof Reasonable Doubt Legal Rights
Protects
Criminal- Crown v. Individual (protects society, values, morals, etc.)
Civil- Individual v. Individual (personal relationships)
Initiates
Criminal- Crown prosecution files criminal charges and initiates proceedings.
Civil- Victim (plaintiff) files the civil law suit
Punishment
Criminal- Guilt leads to prison or fine paid to the gov’t.
Civil- Liable verdict leads to payment of defendant for damages. Punitive damages (in tort law cases only)
1) Malicious intent
2) Gross negligence
3) Willful disregard for the rights of others
These make a public example to deter others.
the plaintiff may receive nothing if the defendant has no money or assets.
Burden of Proof
Criminal- B.O.P is always on the Crown–they hold the burden for proving guilt beyond a reasonable doubt.
Civil- B.O.P is initially on the plaintiff to prove the elements of negligence. If elements proven, B.O.P transfers to the defendant to refute or rebut the plaintiff’s evidence
-If the preponderance of evidence favours the plaintiff more than 50% probable, the plaintiff wins and is awarded damages.
Reasonable Doubt
Criminal- Elements of negligence must be proven beyond 98% or 99% certainty of guilt. Judge or jurors must be 98% or 99% certain of accused’s guilt.
Civil- Standard of action is based on what a “reasonable and logical” person would have done.
Legal Rights
Criminal- Protected by procedural law S. 7-10 of the Charter:
-right to a speedy trial
-double jeopardy
-no unreasonable searches
-accused is not compelled to testify or give self-incriminating evidence against themselves.
Civil- Procedures not a restricted as in Criminal law.
-no probable cause needed for searches–lawyers can request access to locations, documents, people, property,etc.
-lawyers have access to anything that would be inadmissible at a criminal trial so long as it is reasonable.
-can depose non parties (others not directly involved), get documents or access to their property.
-the defendant must provide information when requested–they must help the opponent gather evidence that will defeat them.
The subcategories of private law and what they relate to.
- Tort law: holds a person or organization responsible for the damages they cause another.
- Family law: aspects of family life. Separation, divorce, division of property, and child custody.
- Contract law: outlines the requirements for legally binding agreements.
- Property law: the relationships between individuals and property. The use, enjoyment, sale, and lease of property.
- Labour and employment law: the relationship between employers and employees. Minimum wage, pay equity, working conditions, and workers’ compensation.
- Commercial law
- Wills and estates
The aspects that make a case a class action suit.
A class action lawsuit is a single legal action brought on behalf of all members of a group with a common grievance. Benefits of joining a class action suit are:
- they avoid the necessity for hundreds, or thousands, of people to file similar or individuals lawsuits.
- they seek to ensure that people with similar claims are treated similarly.
- they help eliminate common barriers, such as economic barriers, that prevent people from pursuing legal action.
The types of damages awarded.
Nominal Damages- this is a small amount of money given to the plaintiff only because they were wronged, but they possible didn’t suffer a great deal.
Compensatory Damages- this is an amount awarded to reimburse the plaintiff for what was damaged. It can be the actual cost of replacement or calculated cost of lost wages, etc.
Punitive Damages- this amount is a severe financial penalty the defendant is required to pay out when the court finds out they have acted in a callous and completely reckless manner. It is intended to be a deterrent so others will avoid similar behavior that may lead to the same harm caused. It is meant to penalize or punish the defendant as well.
The difference between negligence torts and intentional torts.
Negligence Torts- caused by inattention or carelessness leading to potential harm. There is the risk of foreseeable harm, but it is not intended. The three characteristics of negligence are: action is unintentional, action is unplanned, and an injury results.
Intentional Torts- harm or loss is caused by deliberate action, such as: false imprisonment, (wrongful confinement), trespass to persons and land (assault [threat], battery [unlawful touching]. land [entering/crossing another persons land without permission]); causing a nuisance (unreasonable use of land near adjoining land); defaming reputation (false statements that damage another person’s reputation).
the importance of “reasonable” and “foreseeability” in a legal sense with torts.
Reasonable- actions need to be proven to not be what “reasonable” person would have done in a given situation to be found liable.
Foreseeability- for a tort to be intention, the harm must be foreseeable, for someone to be negligent that harm must be foreseeable. harm caused must be foreseeable to establish standard of care.
The different standards of care.
1) The Reasonable Person Test- what a reasonable person would have expected in similar circumstances. A reasonable person is an ordinary adult, no physical/developmental delays, and careful, thoughtful, and considerate. Reasonable changes with the context of today’s values, and with location and event.
2) The Professional Liability Test- applies to individuals with specialty skills, expertise, and training. the reasonable person test is adapted to what a reasonable person with the same specials training would have done in the situation.
3) The Child Test- children cannot be held to the same standard of care as a reasonable adult. There is no set standard regarding youth and torts. Liability is based on each case. Older children are held more responsible. the reasonable person test with children is based on what another child would do with the same age, intelligence, and experience. Exception: if the offence was an adult activity
4) Standard of Care for Rescuers- the expected standard of care is quite low in rescue and emergency situations. Duty of care is still owed to the victim harmed, other potential victims, other rescuers, and anyone harm may foreseeably come to by you interceding and assuming the duty of care.
Foreseeability- could a reasonable person have anticipated the result.
The “But For” test and how it is applied.
This test is used by judges to determine how direct the action and effects are. If an accident would not have occurred “but for” the actions of the defendant the conduct is the cause of damage. If the accident would have happened anyway, the conduct is not the cause.
The defences of negligence torts.
1) Contributory negligence- if both parties are slightly negligent, damages may be divided between them.
2) voluntary assumption of risk- this concept assumes that people who engage in a dangerous activity willingly accept the risk. A defendant would prove the plaintiff knew the risks and continued.
3) Inevitable accident- at times, accidents happen despite precautions a reasonable person would make that are not foreseeable.
