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Civil Procedure > Chapter 1: Overview of a Civil Lawsuit > Flashcards

Chapter 1: Overview of a Civil Lawsuit Flashcards

1
Q

List, in the correct order, all the stages of a civil proceeding (lawsuit)

A

1.Hiring of a lawyer
2. Preliminary investigations & research
3. commencement of proceedings
4. Exchange of pleadings
5.Examinations for discoveries
6. Motions
7. Pre trial conference & trial prep
8.Trial
9. Appeals

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2
Q

What are the practical realities of litigation?

A

It is expensive, stressful, and not guarantee of winning.

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3
Q

What are to two ways to commence a civil proceeding?

A

via action or application

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4
Q

Which document(s) could you prepare if wish to commence an action?

A

Statement of claim
14A (general) or 14B (mortgage actions) or 14D (if notice of claim was filed first)

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5
Q

How will you know when to commence a proceeding by application?

A

generally, When it is unlikely there will be any material facts in dispute.
OR
-estates
-interpretation of an instrument or statute
-Interest in land, trusts
-Injunction or receiver
-charter

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6
Q

Once the statement of claim is prepared, what is the next step i.e., what do you do with it next?

A

take to the local office of Superior court to be issued.

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7
Q

How does a Notice of Action assist the lawyer?

A

It stops limitation period giving an extra 30 days from the date the notice of action is issued to serve and file the statement of claim

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8
Q

How long do you have to serve the Statement of Claim once it is issued?

A

6 months.

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9
Q

What are the two methods of serving a Statement of Claim?

A

-directly to defendant
-to last known address

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10
Q

What are the methods of personal service on an individual and a corporation? What Rule did you look at to answer this question?

A

individual - handed directly (personally deliver) to defendant
corporation - personally deliver to manager or a director or officer of the corporation.

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11
Q

What are the alternatives to personal service? Which Rule did you look at to answer this question?

A

-Accpetance of service by a lawyer
-Service by mail to last known address
-Service to last known address
-Service at place of residence
-deemed service, e-mail.
for more see RULE 16.04

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12
Q

Proof of service usually consists of what document?

A

Affidavit of service. (FORM 16B)

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13
Q

Would the Statement of Claim tell the defendant how much time he has
to file his Statement of Defence?

A

yes.

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14
Q

What choices do Fred and Rattle Motors have when served with a Statement of Claim?

A

File:
Statement of defence
OR
intent to defend
OR
ignore if insolvent
OR
motion to dismiss. if no cause of action or abuse of court process

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15
Q

If time is running short and a defendant does not have time to prepare and file his Statement of Defence, what document can he file? How many more days will the defendant then have to file the Statement of Defence? Which Rule tells you this?

A

Intent to defend (FORM 18B)
-This will give an additional 10 days.

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16
Q

What are the two most common types of discovery used in almost every civil proceeding?

A

Discovery of parties

Discovery of documents

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17
Q

explain what happens in discovery of documents?

A

all parties are expected to cooperate in meeting to discuss extent of discovery and create a discovery plan in writing.
Setting out;
- Scope of discovery
- dates for service of affidavits of docs.
- information on the cost
- timing & mode of production of docs.
- names of persons to be produces on discovery
- and length of time of examinations

Following this: each party is to prepare an affidavit of docs.;
- the identity & nature of EVERY doc. the have or had that might be relevant to the action.

Term “DOCS.” may include:
-digital files
- computer disks
- thumb drives
- audio and video tapes
- photos
- and other media of communication

Parties may claim privilege for certain docs.. it must be listed but does not need to be produced. if used in trial privilege is lost & doc them must be disclosed.

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18
Q

Explain what happens in discovery of parties?

A

Follows Discovery plan.

Each party is entitled up to seven hours to question other parties about
-case
- statement of claim or defence &
- docs. disclosed in Discovery of Docs. process.

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19
Q

What is a motion & it’s purpose?

A

a document to fix any procedure issues

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20
Q

What is the purpose/goal of the pre-trial conference?

A

To settle
verify facts of the case to speed up trial

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21
Q

notice of intent to defend (definition)

A

document that when filed before deadline will extend (by ten days) the time in which you have to issue a statement of defence.

Used when you don’t have enough time to file.

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22
Q

general heading (definition)

A

Heading on all court docs. that identifies the court, the parties, and the status of the parties

23
Q

notice of action (definition)

A

a document that grants an extra 30 days to file Statement of Claim

24
Q

disbersements (definition)

A

amounts lawyers pay on behalf of clients to third parties that lawyers can recover from clients

25
Q

originating process (definition)

A

Doc. that starts a lawsuit.

Issuing an action (statement of claim) or application.

26
Q

Statement of defence (definition)

A

The defendant’s reply to a statement of claim

27
Q

True copy (definition)

A

A copy of original doc. that is like the original in every way.

“The original” are usually inside quotation marks on the copy.

28
Q

Retainer (definition)

A

A contract between a lawyer and a client that sets out a description of the work to be done by the lawyer. & the terms and conditions.

29
Q

Title of proceedings (definition)

A

part of the general heading that identifies the parties and their status in a lawsuit

30
Q

(definition) Statement of claim

A

originating process
outlines;
- remediesA.K.A “claim for relief”,
- parties
- facts of case
- law that entitles remedy.

31
Q

Damages (definition)

A

compensation awarded by the court for harm done

32
Q

Fees (definition)

A

payment to lawyer for services rendered

33
Q

The purpose of a civil proceeding is to ______________

A

Compensate the plaintiff

34
Q

A monetary retainer is the same as a written retainer.
T or F

A

FALSE

35
Q

A cause of action is defined as ?
- the legal right to sue the plaintiff
- the legal right to sue to obtain a legal remedy
- the legal right to sue to punish the defendant

A

the legal right to sue to obtain a legal remedy

36
Q

The term “balance of probabilities” means that the evidence must lead the trier of fact to conclude that it is more probable than not that the facts set out by the client are correct.
T or F

A

True

37
Q

What is the balance of probabilities?

A

that the evidence must lead the trier of fact to conclude that it is more probable than not that the facts set out by the client are correct.

38
Q

Which of the following is a type of evidence?

Documentary

Physical

Expert

All of the above

A

ALL OF THE ABOVE

39
Q

To determine which court to sue in, the lawyer will consider which of the following:

subject matter of the lawsuit

the amount of money claimed in the lawsuit

the territorial jurisdiction of the court

all of the above

A

ALL OF THE ABOVE

40
Q

A motion is a proceeding within the main action to settle a procedural issue that has arisen and can be brought at any stage of the lawsuit.
T or F

A

TRUE

41
Q

As a general rule, you would commence a legal proceeding by way of application.
T or F

A

F

42
Q

A statement of claim:

is an originating process

must be issued by the Registrar

commences an action

all of the above

A

ALL OF THE ABOVE

43
Q

In Ontario, as a general rule, the limitation period is five years from the time the cause of action arose.
T or F

A

FALSE

44
Q

A statement of claim can be served:

  • by leaving a copy of the document with the defendant
  • by having the defendant’s lawyer accept service of the document
  • by leaving a copy of the statement of claim, in a sealed envelope, at the defendant’s residence with a person who appears to be an adult member of the defendant’s household.
  • all of the above
A

ALL OF THE ABOVE

45
Q

An affidavit of service is used to prove that a person was served with a court document.
T or F

A

TRUE

46
Q

In a statement of defence, the defendant will either admit, deny or claim no knowledge of the allegations raised by the plaintiff.
T or F

A

TRUE

47
Q

The purpose of discovery is to:

obtain admissions that may be
helpful to our client’s case

assess the strength of the other party’s case

promote settlement

all of the above

A

ALL OF THE ABOVE

48
Q

An affidavit of documents is a sworn document wherein the party discloses the identity and nature of every relevant document that they now have or had previously.
T or F

A

TRUE

49
Q

The party who brings a motion is called the responding party.
T or F

A

FALSE
They are called the moving party.

50
Q

An endorsement appears on the back sheet of a court document.
T or F

A

TRUE

50
Q

Which of the following documents is required to be filed five days before a pre-trial conference is held?

the conference brief

the pre-trial record

the pre-trial conference brief

the conference record

A

the pre-trial conference brief

51
Q

A request to admit is a document in which one party requires the other party to admit the truth of a fact or the authenticity of a document.
T or F

A

TRUE

52
Q

In order for a party to appeal a trial judge’s decision:

the trial judge must have made an error of law

the trial judge must have made an error of fact

the trial judge must have made an error of both law and fact

the trial judge must have made an error in the amount of damages awarded

A

the trial judge must have made an error of law

53
Q

A practice direction:

must be read in conjunction with the Rules of Civil Procedure

allows a senior judge to customize the Rules of Civil Procedure

can be updated and modified

all of the above

A

all of the above

Civil Procedure (5 decks)

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