Chapter 11 & 12 Flashcards
(96 cards)
1
Q
civil law
A
- private, doesn’t affect society as a whole
- disputes between individuals or between people & businesses and/or government
- purpose: to compensate people for wrongs committed against them
2
Q
types of civil law
A
- torts
- contract
- property
- family
- labour
3
Q
tort
A
- wrong committed against another person
- often associated with criminal cases
- 3 types: unintentional, intentional, strict liability
4
Q
contracts
A
agreement between 2 parties to do or not to do something
5
Q
property disputes
A
- refers to real estate & land issues
- also tenant/landlord issues
6
Q
family law
A
deals with adoption, child support, divorce, child custody, separation, division of property, wills, & estates
7
Q
labour law
A
deals with employees & employer issues (wages, pay equity, dismissal, work conditions, etc.)
8
Q
small claims
A
- ranging from $3000-$10,000
- “the people’s court”
- informal, deals with simple civil actions
9
Q
Supreme court of BC
A
- $10,000+
- lawyers are required
- can have a judge and/or jury
10
Q
Appeal court of BC
A
hears appeals from lower courts
11
Q
federal court of Canada
A
Federal gov’s dispute with employees, disputes over income taxes, copyrights & trademarks, etc.
12
Q
Supreme court of canada
A
- appeals of appeal court or federal court
- only hears cases of national importance or those with a split vote at appeal court
13
Q
litigation
A
the process of suing someone
14
Q
litigants
A
the people involved in suing someone
15
Q
process of suing someone in small claims
A
- plaintiff files summons (pays filing fee, proves cause of action (reason for suing), has limitation period of 2 years)
- defendant’s options: agree & pay claim, pay part of claim, plaintiff accepts or pursues, “statement of defence”, counter-claim (sue them back), third-party claim, nothing -> “default judgement” (they lose)
- in BC you have 14 days to respond to a summons, 30 days if you’re out of province
16
Q
Pre-trial conference
A
present case to each side to reach an out-of-court settlement, if parties can’t agree, a trial date will be set
17
Q
writ of summons
A
filing a case & delivery of the summons (calling people to court)
18
Q
pleadings
A
response of the defendant
19
Q
examination for discovery
A
question & answer session between litigants & lawyer
20
Q
pre-trial conference
A
last chance for litigants to reach settlement without a formal trial
21
Q
the trial
A
- parties go to trial if settlement can’t be reached
- can be by judge alone, or by judge & jury
22
Q
general damages
A
- can’t be calculated easily or precisely (ie. loss of income, pain & suffering, etc.)
- pecuniary losses: income loss
- non-pecuniary losses: pain & suffering
23
Q
specific damages
A
compensate expenses spent before trial due to injury (ie. hospital expenses)
24
Q
punitive damages
A
additional damages awarded to punish defendant for bad behaviour
25
nominal damanges
awarded when judge wants to indicate support for plaintiff & award small sum to show that they won (ie. $1-$100)
26
court costs
losing party is usually required to pay court fees
27
injunction
an order for a person not to do something
28
garnishment
plaintiff can obtain court order required 3rd party to pay debt to the court
29
examination of a debtor
defendant forced to appear in court to show that they have the financial resources to settle the case
30
seize assets
courts take legal possession of debtor's property and sell it to settle judgement
31
automobile judgements
can keep up to $5000 from the sale of your car
32
parties involved (civil vs. criminal)
- civil: plaintiff vs defendant
| - criminal: crown attorney vs. accused/defendant
33
grounds/reason (civil vs. criminal)
- civil: resolving a dispute
| - criminal: laying of criminal charge to determine innocence or gult
34
purpose of action (civil vs. criminal)
- civil: to compensate victims
| - criminal: to punish offender
35
onus of proof (civil vs. criminal)
- civil: on plaintiff
| - criminal: on crown attorney
36
burden of proof (civil vs. criminal)
- civil: balance of probabilities
| - criminal: beyond reasonable doubt
37
result of action (civil vs. criminal)
- civil: defendant "liable" or "not liable"
| - criminal: accused "guilty" or "not guilty"
38
action if guilt or liability found (civil vs. criminal)
- civil: plaintiff is awarded compensation or remedy, no jail
- criminal: defendant is sentenced, could go to jail
39
Negligence
anyone who creates unreasonable risk & carelessly injures a person or damages property (not liable if there is no actual harm)
40
3 types of negligence
- unintentional
- unplanned
- causes injury
41
Duty of Care
- responsibility or legal duty not to harm people or their property (ie. keeping snow off walk)
- started in 1932 after Donaghue vs. Stevenson case
42
Standard of Care
degree of care society expects from people... higher for someone who's an expert in their field
43
the reasonable person
careful, thoughtful, & considerate of other people, doesn't have developmental or physical disabilities
44
foreseeability
the degree to which the actions can be anticipated...would a reasonable person have been able to predict injury?
45
causation
- if defendant has breached standards of care
| - plaintiff must prove defendant's action directly caused the action
46
actual law
- if defendant has breached standards of care
| - plaintiff must prove some injury or loss as a result of defendant's negligence
47
burden of proof
- if defendant has breached standards of care
| - onus is on plaintiff to prove this on balance of probability
48
ADR
- alternative dispute resolution
- used to avoid the time-consuming & expensive civil litigation process
- 3 types: mediation, negotiation, and arbitration
49
mediation
- neutral 3rd party helps the 2 parties come up with a solution
- both parties agree to the solution
- both parties agree on the choice of mediator
50
negotiation
- 2 parties informally negotiate a settlement
| - no 3rd party
51
arbitration
- parties pick a mediator
- mediator listens to both sides and comes up with a decision
- a clear winner & loser (mediator presents a decision the parties must do)
52
crime vs. tort
- crime: wrong that affects society
| - tort: wrong that affects another person
53
Purposes of Tort Law
1. provide compensation to victims
| 2. solve disputes
54
Rights of Minors in Civil Actions
- may take civil action just like adults
| - if suing for more than $500, their guardian must conduct the proceedings
55
Judgment
seeing what damages are awarded
56
Enforcing a Judgment is whose responsibility?
Plaintiff's
57
Defences of Negligence
- contributory negligence
- voluntary assumption of risk
- inevitable accident
58
Contributory negligence
- if both parties were negligent, judge must determine whether or not they were equally negligent in order to decide liability & compensation
- defendant's responsibility to prove plaintiff's negligence
59
Voluntary assumption of risk
You know it was dangerous but accepted the risk
60
Inevitable accident
an unavoidable situation (ie. you have a heart attack and crash your car into someone)
61
Children & negligence
- no legislation outlines their tort liability
- case law says:
- under 6 or 7: not liable
- parents may be liable if standards of care weren't met (under Parental Responsibility Act)
62
Contributory negligence (motor vehicle negligence)
ICBC says 50/50
63
Liability for passengers (motor vehicle negligence)
If you know the driver is drunk, it's voluntary assumption of risk
64
Vicarious liability (motor vehicle negligence)
Liability if you lend your car to someone else and they crash (ie. parents are responsible if kid crashes car)
65
Seatbelt negligence (motor vehicle negligence)
If the other person's at fault but you weren't wearing your seatbelt, your damages are less by 15-40%
66
Professional Negligence
- professionals have a higher standard of care
67
Medical negligence
Must disclose material risks so that patient can give informed consent
68
Invitees
- Anyone on your property for a purpose other than a social visit (ie. for business)
- highest standard of care
- ex. students, customers
69
General Invitees
Someone who comes to your business
70
Commercial/social host Invitees
Someone who comes to your bar/restaurant
71
Licensees
- Someone who comes to your property for social reasons (ie. dinner guests)
- Lesser standard of care
72
Trespassers
- someone who enters property without permission or overstays their welcome (ie. burglar, wandering child)
- still need reasonable standard of care
73
Unintentional tort
Negligence
74
Intentional torts
- trespass a person (ie. assault, battery, false imprisonment)
- trespass property
- nuisance
75
Assault (in civil law terms)
Fear that harm may occur
76
Battery (in civil law terms)
Follow-through of assault (touching another person without their consent)
77
False imprisonment
confining/restricting someone to an area without their consent without having the authority to do so (ie. detention of a shoplifting suspect by a mall cop)
78
Trespass of property
- entering/crossing someone's property without consent or placing items on someone's property without consent
- no damage required
79
Nuisance
- can be unintentional
- use of ones land in a manner that infringes upon the ability of someone else to enjoy their land
- harm must be serious and continuous
80
Defense options for torts
- consent
- self-defence
- defence of others
- defence of property
- legal authority
- necessity
81
Consent
had permission, or action was voluntarily undertaken by the victim
82
Self-defence
using reasonable and necessary force that isn't excessive (cannot use provocation)
83
Defence of 3rd party/others
if there was immediate danger and your act was necessary to protect someone else
84
Defence of property
owners can protect property from trespassers
85
Legal authority
it's their job (cops, store detectives, etc.)
86
Necessity
they had to do it, emergency situation
87
Defamation
an untrue attack on a person's reputation or good name
88
Slander
- oral defamation
- plaintiff must prove:
- statements were made to someone else
- they lowered the plaintiff's reputation in the eyes of a reasonable person
- some form of damages
89
Libel
- defamatory statements that are written, printed, recorded, filmed, drawn, etc.
- more serious than slander (more widespread)
- don't have to prove damages
- can be intentional or unintentional
90
Defences to defamation
- truth
- absolute privilege
- qualified privilege
- fair comment
91
Truth
- facts are verified
| - strongest defense
92
Absolute privilege
- protection from liability for statements made in parliament, tribunal, courtrooms, etc.
93
Qualified privilege
protection from liability for statements made without malice (ie. past employers can write a negative reference)
94
Fair comment
Comments were honest and made without malice (ie. critics can make an honest assessment)
95
Intent
reason behind committing the action
96
Strict liability in tort law
When an activity exposes others to risk, there's no need to prove negligence/intent - the accused is still at fault even if they didn't do anything (ie. dog owner is at fault if dog bites someone)
