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Law 12 > Chapter 11 & 12 > Flashcards

Chapter 11 & 12 Flashcards

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
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2
Q

types of civil law

A
  • torts
  • contract
  • property
  • family
  • labour
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3
Q

tort

A
  • wrong committed against another person
  • often associated with criminal cases
  • 3 types: unintentional, intentional, strict liability
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4
Q

contracts

A

agreement between 2 parties to do or not to do something

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5
Q

property disputes

A
  • refers to real estate & land issues

- also tenant/landlord issues

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6
Q

family law

A

deals with adoption, child support, divorce, child custody, separation, division of property, wills, & estates

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7
Q

labour law

A

deals with employees & employer issues (wages, pay equity, dismissal, work conditions, etc.)

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8
Q

small claims

A
  • ranging from $3000-$10,000
  • “the people’s court”
  • informal, deals with simple civil actions
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9
Q

Supreme court of BC

A
  • $10,000+
  • lawyers are required
  • can have a judge and/or jury
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10
Q

Appeal court of BC

A

hears appeals from lower courts

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11
Q

federal court of Canada

A

Federal gov’s dispute with employees, disputes over income taxes, copyrights & trademarks, etc.

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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

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13
Q

litigation

A

the process of suing someone

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14
Q

litigants

A

the people involved in suing someone

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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
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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

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17
Q

writ of summons

A

filing a case & delivery of the summons (calling people to court)

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18
Q

pleadings

A

response of the defendant

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19
Q

examination for discovery

A

question & answer session between litigants & lawyer

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20
Q

pre-trial conference

A

last chance for litigants to reach settlement without a formal trial

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21
Q

the trial

A
  • parties go to trial if settlement can’t be reached

- can be by judge alone, or by judge & jury

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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
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23
Q

specific damages

A

compensate expenses spent before trial due to injury (ie. hospital expenses)

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24
Q

punitive damages

A

additional damages awarded to punish defendant for bad behaviour

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25
Q

nominal damanges

A

awarded when judge wants to indicate support for plaintiff & award small sum to show that they won (ie. $1-$100)

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26
Q

court costs

A

losing party is usually required to pay court fees

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27
Q

injunction

A

an order for a person not to do something

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28
Q

garnishment

A

plaintiff can obtain court order required 3rd party to pay debt to the court

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29
Q

examination of a debtor

A

defendant forced to appear in court to show that they have the financial resources to settle the case

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30
Q

seize assets

A

courts take legal possession of debtor’s property and sell it to settle judgement

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31
Q

automobile judgements

A

can keep up to $5000 from the sale of your car

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32
Q

parties involved (civil vs. criminal)

A
  • civil: plaintiff vs defendant

- criminal: crown attorney vs. accused/defendant

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33
Q

grounds/reason (civil vs. criminal)

A
  • civil: resolving a dispute

- criminal: laying of criminal charge to determine innocence or gult

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34
Q

purpose of action (civil vs. criminal)

A
  • civil: to compensate victims

- criminal: to punish offender

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35
Q

onus of proof (civil vs. criminal)

A
  • civil: on plaintiff

- criminal: on crown attorney

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36
Q

burden of proof (civil vs. criminal)

A
  • civil: balance of probabilities

- criminal: beyond reasonable doubt

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37
Q

result of action (civil vs. criminal)

A
  • civil: defendant “liable” or “not liable”

- criminal: accused “guilty” or “not guilty”

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38
Q

action if guilt or liability found (civil vs. criminal)

A
  • civil: plaintiff is awarded compensation or remedy, no jail
  • criminal: defendant is sentenced, could go to jail
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39
Q

Negligence

A

anyone who creates unreasonable risk & carelessly injures a person or damages property (not liable if there is no actual harm)

40
Q

3 types of negligence

A
  • unintentional
  • unplanned
  • causes injury
41
Q

Duty of Care

A
  • 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
Q

Standard of Care

A

degree of care society expects from people… higher for someone who’s an expert in their field

43
Q

the reasonable person

A

careful, thoughtful, & considerate of other people, doesn’t have developmental or physical disabilities

44
Q

foreseeability

A

the degree to which the actions can be anticipated…would a reasonable person have been able to predict injury?

45
Q

causation

A
  • if defendant has breached standards of care

- plaintiff must prove defendant’s action directly caused the action

46
Q

actual law

A
  • if defendant has breached standards of care

- plaintiff must prove some injury or loss as a result of defendant’s negligence

47
Q

burden of proof

A
  • if defendant has breached standards of care

- onus is on plaintiff to prove this on balance of probability

48
Q

ADR

A
  • alternative dispute resolution
  • used to avoid the time-consuming & expensive civil litigation process
  • 3 types: mediation, negotiation, and arbitration
49
Q

mediation

A
  • 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
Q

negotiation

A
  • 2 parties informally negotiate a settlement

- no 3rd party

51
Q

arbitration

A
  • 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
Q

crime vs. tort

A
  • crime: wrong that affects society

- tort: wrong that affects another person

53
Q

Purposes of Tort Law

A
  1. provide compensation to victims

2. solve disputes

54
Q

Rights of Minors in Civil Actions

A
  • may take civil action just like adults

- if suing for more than $500, their guardian must conduct the proceedings

55
Q

Judgment

A

seeing what damages are awarded

56
Q

Enforcing a Judgment is whose responsibility?

A

Plaintiff’s

57
Q

Defences of Negligence

A
  • contributory negligence
  • voluntary assumption of risk
  • inevitable accident
58
Q

Contributory negligence

A
  • 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
Q

Voluntary assumption of risk

A

You know it was dangerous but accepted the risk

60
Q

Inevitable accident

A

an unavoidable situation (ie. you have a heart attack and crash your car into someone)

61
Q

Children & negligence

A
  • 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
Q

Contributory negligence (motor vehicle negligence)

A

ICBC says 50/50

63
Q

Liability for passengers (motor vehicle negligence)

A

If you know the driver is drunk, it’s voluntary assumption of risk

64
Q

Vicarious liability (motor vehicle negligence)

A

Liability if you lend your car to someone else and they crash (ie. parents are responsible if kid crashes car)

65
Q

Seatbelt negligence (motor vehicle negligence)

A

If the other person’s at fault but you weren’t wearing your seatbelt, your damages are less by 15-40%

66
Q

Professional Negligence

A
  • professionals have a higher standard of care
67
Q

Medical negligence

A

Must disclose material risks so that patient can give informed consent

68
Q

Invitees

A
  • Anyone on your property for a purpose other than a social visit (ie. for business)
  • highest standard of care
  • ex. students, customers
69
Q

General Invitees

A

Someone who comes to your business

70
Q

Commercial/social host Invitees

A

Someone who comes to your bar/restaurant

71
Q

Licensees

A
  • Someone who comes to your property for social reasons (ie. dinner guests)
  • Lesser standard of care
72
Q

Trespassers

A
  • someone who enters property without permission or overstays their welcome (ie. burglar, wandering child)
  • still need reasonable standard of care
73
Q

Unintentional tort

A

Negligence

74
Q

Intentional torts

A
  • trespass a person (ie. assault, battery, false imprisonment)
  • trespass property
  • nuisance
75
Q

Assault (in civil law terms)

A

Fear that harm may occur

76
Q

Battery (in civil law terms)

A

Follow-through of assault (touching another person without their consent)

77
Q

False imprisonment

A

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
Q

Trespass of property

A
  • entering/crossing someone’s property without consent or placing items on someone’s property without consent
  • no damage required
79
Q

Nuisance

A
  • 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
Q

Defense options for torts

A
  • consent
  • self-defence
  • defence of others
  • defence of property
  • legal authority
  • necessity
81
Q

Consent

A

had permission, or action was voluntarily undertaken by the victim

82
Q

Self-defence

A

using reasonable and necessary force that isn’t excessive (cannot use provocation)

83
Q

Defence of 3rd party/others

A

if there was immediate danger and your act was necessary to protect someone else

84
Q

Defence of property

A

owners can protect property from trespassers

85
Q

Legal authority

A

it’s their job (cops, store detectives, etc.)

86
Q

Necessity

A

they had to do it, emergency situation

87
Q

Defamation

A

an untrue attack on a person’s reputation or good name

88
Q

Slander

A
  • 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
Q

Libel

A
  • 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
Q

Defences to defamation

A
  • truth
  • absolute privilege
  • qualified privilege
  • fair comment
91
Q

Truth

A
  • facts are verified

- strongest defense

92
Q

Absolute privilege

A
  • protection from liability for statements made in parliament, tribunal, courtrooms, etc.
93
Q

Qualified privilege

A

protection from liability for statements made without malice (ie. past employers can write a negative reference)

94
Q

Fair comment

A

Comments were honest and made without malice (ie. critics can make an honest assessment)

95
Q

Intent

A

reason behind committing the action

96
Q

Strict liability in tort law

A

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)

Law 12 (9 decks)

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