Chapter 1 Flashcards
What are the two categories of law?
Substantive law
-Rules determining behaviour
Procedural law
-How the legal process works
What is a civil code legal system?
Codified body of rules
Originated with the Roman the Romans; later modified by Napoleon
Used in most countries
Quebec’s legal system is based on the French Civil Code
What is a common law legal system?
Common law used in GB and the commonwealth
The system adopted by Canada’s English- speaking provinces and the territories
Judge-made law
-Developed in the courts
-Based on precedent or stare decisis
What are the three sources of common law?
Following precedent or stare decisis Bound to follow precedent case if: -Decision made by higher court -In the same jurisdiction -Based on similar facts May distinguish cases on the facts. Law of Equity -Decisions made by Courts of Chancery -Based originally on fairness -Developed to counter rigid common law -Courts later merged, but bodies of law remained separate Statutes -Laws created by legislative bodies -“Parliamentary supremacy” (i.e. legislation overrides common law and law of equity) -Often summarize or modify common law Include government regulations
What did Canada inherit from the UK?
Canada created by British North America Act, 1867
Canada inherited certain conventions or traditions from Britain
-Rule of Law
-Principles established by the Magna Carta
-Parliamentary supremacy
What are the law in Canada’s consequence of the BNA act?
BNA Act called Constitution Act (1867)
- Section 91 and 92 divide powers between feedral and provincial governments
- Principle of paramountcy applies in cases of conflict between federal and provincial laws
Explain the Constitution Act.
Constitution Act (1982) -Ended ties with the British Government - Listed government enactments having constitutional status - Established amending formula for constitutional change Included Charter of Rights and Freedoms
Explain the Charter of rights and freedoms?
Protects individuals from infringement on their rights by governments or their agents
Includes limitations on Charter rights:
- Section 1- reasonable exceptions to Charter rights and freedoms allowed
- Section 33- legislatures can pass acts that infringe on rights “notwithstanding” the Charter
- Section 32- Charter applies only to government
What are the actions needed to civil litigation?
- Decide whether to bring an action in the Provincial Court (small claims division) or the Supreme Court
- Plaintiff starts the action by filing and serving a notice of civil claim.
- Defendant files and serves a response
- Defendant files and delivers a counterclaim or third party claim, if applicable.
- If required, plaintiff files and delivers a response to the counterclaim.
- If required, third party files and serves a response.
- Plaintiff and defendant start discovery process (discovery of documents; examinations for discovery; interrogatories
- Plaintiff and defendant may need to make pre-trial applications in chambers to obtain directions or assistance from the court
- Plaintiff and defendant consider resolving case without going to trial
- Plaintiff and defendant prepare for trial by setting trial date; considering expert opinions; preparing documents for trial
- Plaintiff and defendant attend the trial and receive judgment and award of costs
- Plaintiff or defendant (winning party) prepares and files court order
- Plaintiff or defendant enforces judgment
Describe the process of trial?
Plaintiff presents case
- Burden of proof rests with the plaintiff
- Balance of probabilities
- Direct examination of witnesses
- Cross examination by defense lawyer
Defendant presents case
Brings forward witnesses and evidence
Plaintiff’s lawyer gets to cross-examine
Tries to put enough doubt into the plaintiff’s case so plaintiff cannot prove his/her case
Judge determines the law and instructs the jury (if trial by judge and jury)
Jury decides on the facts
If judge alone, he/she determines both facts and law
What are some remedies can the court impose?
Damages (monetary compensation) General – non-quantifiable losses Special – quantifiable losses Punitive – to punish the wrongdoer Equitable Remedies where damages are not appropriate Injunction – stop order Specific performance – fulfil the terms of an agreement Accounting – Pay over profits
What are some of the considerations in terms of judgement enforcement?
Plaintiff must enforce judgment Not all cases where defendant pays up Post trial hearing to identify assets Seizure of property Garnishment of wages Contempt of court (related to order of specific conduct)
What are some of the alternative dispute resolutions?
Process for resolving disputes outside of the courts Main methods: Negotiation Mediation Arbitration
Describe negotiation?
Parties discuss the problem with each other in order to find a solution
Process requires cooperation and compromise
May be conducted through representatives
Process may enhance relationship
May result in a a legally binding agreement at the end of the day
Describe mediation?
Neutral outsider helps parties settle the dispute
Communication facilitated by mediator
Finds common ground
Encourages concessions
Mediator does not make decision
Sometimes required before court will hear case
Court may affirm mediated resolution
