Introduction to Law Flashcards
Types of Law
Criminal Law (Public Law)
- law that concerns conduct which interferes with the security of a society
- usually between individuals and/or government
Civil Law (Private Law)
- deals with non-criminal matters such as contract law, tort law, property law, administrative law, etc.
- the amount of lawyers practising civil law in Canada has increased significantly over the years
- disputes can arise between individuals and/or corporations
Civil Law (Roman Law) also means a system of law based on the Roman tradition. Most of Western Europe adopted the Roman system of law, which eventually came to be known as the Civil Code system.
Common Law
- a system of law based on cases or “judge-made” law
- it is based on judicial decisions
- Besides Quebec, all of Canada uses this system in addition to other countries like U.S (except Louisiana), England, New Zealand, and Australia.
- Term common law can also mean the system of case based law that is in contrast to statute law.
Notes:
- the law is full of uncertainty
- the law is full of rapid change
- no one can say for sure what the law is until the courts decide
- hard cases make bad law
What is Law?
- it governs human activities
- it includes legislation, proclamation, regulations, orders, constitution, judicial decisions, legal principles, etc.
- Lawyers can sub-specialize in Personal injury, contracts, etc.
- The structure of law is based on judges, the court house, and the legal profession
- It enforces rules and regulations on everyone
- Laws govern marriage and divorce, child support and custody, driving regulations, business contracts, tuition fees, taxation, landlord and tenant matter, wills and estates and property ownership, etc.
Different Views of the Law
- Natural law Approach
- thousands of years ago through Plato, Socrates, and Aristotle.
- Theorists say that morality (conformity with rules of conduct dictating what is right and wrong. A standard by which an action is determined to be either virtuous or immoral) cannot be divorced from the law but rather they are one and the same
- Law should be fixed to have natural order like our natural surroundings
- Law should reflect true morality because it is possible to understand it
- If the law does not conform to morality then it is not a valid law and therefore need not be obeyed
- This is based on the Latin term lex iniusta non est lex (an unjust law is not a law)
Criticisms?
- how do you determine what is moral and what is not?
- Legal Positivism
- Parliamentary supremacy (the doctrine that Parliament is the only law maker and this ability cannot be overridden or set aside by the courts or anyone else)
- Law divorce from morality
- Not identify what is moral, rather it is based on logic being observed, measured, and processed
- Interpret the law set down by the Parliament (lawmakers) and not to make their own moral decisions (they are elected, language is the key, if not agreed with then a re-draft can be done. The phrase nulla poena sine lege meaning there is no penalty without a valid law. “Black letter la” are the legal principles that are old and settles and should be applied strictly.
Criticisms?
- law is man-made, so why would we follow it?
- H.L.A Hart said that we have a “habit of obedience” in that we learn right and wrong things to do during our childhood.
- What about morality? - Judicial (Legal) Realism
- judge is the most important person
- hard to predict
- something more than just a law (economic, social, political concept. Who are the parties, life experiences, values?
Criticisms?
- Law is what the judge says?
- The judge might have not woken up on the “right side of the bed”?
- Morality?
Eg: “a rule forbids you to take a vehicle into a public park” What is considered a vehicle? Car? Airplane? Stroller? Bike?
Civil Law
- S.M Waddams has noted, the law is better conceptualized as a “continuing process of attempting to solve the problems of a changing society, {rather} then as a set of rules”
- Test case: a lawsuit brought to establish a widespread and important principle of law or right. Sometimes many cases all agree to be bound by the decision in the test case.
- Civil Law is predictable
- S.M. Waddams has said that the “study of law, however, can never divorce itself from a living working system” and I add that the living system cannot be divorced from the theory.
- Packer v. Packer “if we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both”
- Important to look at the law as a “living tree” that evolves and expands as time goes on
- Not always concerned with “justice”
- Technical detail such as the way that the evidence was collected or the filling of certain documents is very important
- John Willis once said that the “law is a part of Western society’s dram of a life governed by reason”
Quebec Law
- It is based on Roman Law
- Only Quebec in entire Canada operates through a Civil Code (Civil Law) instead of Common Law.
- Although some Federal Statutes, like the Criminal Code of Canada are in operation within Quebec, the whole system of commercial obligations, property law and most of family law is not the same as the rest of Canada.
- The primary source of law is the legislation- judge does not need to find another case to support their decision, finding a principle in the code is enough.
- Common Law for Criminal Law
What is Law: Conclusion
Conclusion
- the law is full of uncertainty; the law is full of rapid change; no one can say for sure what the law is until the courts decide
- Waddams says, “it would be very hard upon the profession, if the law was so certain, that every body knew it”
- Very complex, but very flexible
- Waddams – Canadian citizens were presumes to know the law “except Her Majesty’s judges, who have a Court of Appeal set over them to correct their errors”
Professional Responsibility and Ethics I
Public Perception
- the first thing we do, let’s kill all the lawyers
- the lawyer is rarely the supplier of anything pleasant
- lawyer’s fee as the addition of insult to injury
- winner says that it was simple justice, and resents having to pay a fee for what is, after all rightfully hers
- parasitic breed who make unnecessarily complex the simple affairs of life
- only people who really appreciate lawyers are business persons who know the vale of good advice about corporate organization, income tax, or labour relations
Regulation of Lawyers
- self regulated
- can be sued for incompetence, breach of their duties, or criminal prosecution for things such as fraud
- informal, monopoly, or barristers, and/or solicitors
The Law Society
- Ontario: the Law Society of Upper Canada (LSUC)
- Convocation
- Benchers
- Canadian Bar Association (CBA)
- 14 Law societies in Canada
- 300 staffed LSUC
- Federation of law Societies of Canada (FLSC): 95,000 lawyers, 3,500 Notaries in Quebec
- National Committee on Accreditation (NCA): CanLii
Role of Lawyers
- technical
- intermediary
- actionable
- in-house
- sole practitioners
- teach
Different Areas of Law
- corporate law, taxation law, municipal law, bankruptcy, administrative law, real estate, estate and wills, family law, labour and employment law, commercial litigation, intellectual property law including patents and copyright, criminal law from either the perspective of the defence or Crown perspective which may involve constitutional issues, immigration, landlord and tenant law, aboriginal law, sports law, entertainment law, personal injury litigation, environment law and poverty law.
Lawyers have a Ceremonial Aspect.
Legal Aid
- Stats Canada: Canadian Centre for Justice Statistics
- Some availability for custody, personal injury
- Income has to be less than $14,000 ($12,000 in Ontario) for an individual or $27,000 for a family of four. The poverty line in Canada is $19,000
- Lawyers charger around $80 an hour or flat fee
Pro Bono Work
- the CBA Code Chapter XI Section 2 states that “it is in keeping with the best traditions of the legal profession to reduce or waive a fee in cases or hardship or poverty, or where the client or prospective client would otherwise effectively be deprives of legal advice or representation”
Becoming a Lawyer
- undergrad degree in any program (at least 2-3 years). Grades: very least 80% average, top 2 years or top 20 courses, mature and aboriginal students are given benefit
- Law School Admission Test (LSAT): 7-8 hours in a room, average score around 160 for law school, usually ranges 120 to 180. It depends on percentiles(% of candidates scoring below or above your score)
- Personal Statement
- Law School
- Could have a LL.B., J.D., LL.M., Ph.D.
- Articling: 10 months in Ontario
- Bar exams: licensing process. In Ontario it is 2 exams (barrister Examination and Solicitor Examination) each 7 hours.
- Must have good character. Example: U of T applicant.
- Called to the Bar Ceremony and presented with the Degree “barrister-at-law” by the Law Society and a Court Certificate of Qualification. Take an Oath.
Professional Responsibilities and Ethics II
LSUC Rules of Professional Conduct
- “informed by the ethics and etiquette of a gentleman”
6 rules of conduct:
(a) a lawyer has a duty to carry on the practise of law and discharge all responsibilities to clients, tribunals, the public, and other legal practitioners honourable and with integrity
(b) a lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society. A special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human …
(d) the rules are intended to express to the profession and to the public the high ethical ideals of the legal profession
(f) rules of professional conduct cannot address every situation, and a lawyer should observe the rules in the spirit as well as in the letter
Rule 4 – Administration of Justice (The relationship to the administration of justice, other lawyers and the court)
- Advocacy
- When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect
- A lawyer must not bring actions solely to delay or harass the other party, which would bring the administration of justice into disrepute.
Lawyer’s Responsibility to Clients Rule 2 – Competence
- “competent lawyer” means a lawyer who has and applies relevant skills, attributes, and values in a manner appropriate to each matter undertaken on behalf of a client including (a) knowing general legal principles and procedures and substantive law and procedure for the areas of law in which the lawyer practices.
- Provides that “when acting as an advocate, a lawyer shall represent the client resolutely and honourable within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect”. The “lawyer has a duty to the client to raise fearlessly every issue advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law”
Rule 2 Confidentiality
- A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.
- The duty is very broad and can include all conversations, identity of client, and day-to-day information.
- A breach of confidence can lead to disciplinary hearings for the lawyer, a civil law suit and/or a report to the Law Society that they have ineffective counsel.
Sharp Practice
- In Ontario rule 6.03 (3) specifically addresses mistakes and says that a “lawyer shall avoid sharp practice and shall not take advantage of or act without fait warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client’s rights.
Exceptions to Confidentiality Rule 2 – Permitted Disclosure
- Where a lawyer believes upon reasonable grounds that there is an imminent risk to an identifiable person or group of death or serious bodily harm, including serious psychological harm that substantially interferes with health or well-being, the lawyer may disclose, pursuant to judicial order where practicable, confidential information where it is necessary to do so in order to prevent the death or harm, but shall not disclose more information than is required.
- This is different from solicitor-client privilege
Does a lawyer represent every client?
- fiduciary relationship
- not in case of a “conflict of interest” that would either affect a lawyers judgement on behalf of or loyalty to their client or that a lawyer might be prompted to prefer to their clients interests.
- Not in the case the lawyer has potential to be a witness
- Not in the case the client already has a lawyer
- Not in the case of illegality
Practice of Law – Rule 3
- Making services available: ‘lawyers shall make legal services available to the public in an efficient and convenient way’. A lawyer cannot discriminate against a client.
Advertising – Rule 3
- “marketing” includes advertisements and other similar communication in carious media as well as firm names (including trade names), letterhead, business cars and logos.
- A lawyer may market legal services if the marketing (a) is demonstrably true, accurate and verifiable, (b) is neither misleading, confusing, or deceptive, not likely to be mislead, confuse or deceive, and (c) is in the interest of the public and is consistent with a high standard of professionalism.
Termination of the Client-Lawyer Relationship
- dishonourable way, or there is a serious loss of confidence between the parties
- must give back all documentation and property to the client or their new lawyer, disclose all relevant information, account for all outstanding fees, and cooperate with the subsequent legal counsel.
Mandatory Withdrawal
- when discharged by the client
- when the lawyer is instructed by the client to do something inconsistent with the lawyer’s duty to the tribunal even after telling the client
- when the client is guilty of dishonourable conduct in the proceedings or is taking a position solely to harass or maliciously injure another
- when the continuation of the lawyer employment will lead to a breach of another of these rules
- when the lawyer is required to be dishonest or commit fraud
- when the lawyer is not competent to handle the matter
Disciple
- “ a licensee shall not engage in professional misconduct or conduct unbecoming a licensee” and in case of this:
1. revocation of license
2. surrender his or her license
3. suspension of lawyers license for a definite period or until terms and conditions are satisfied
4. a fine not more than $10,000 payable to the Law Society
5. order to continue treatment or counselling, including testing and treatment for addiction to or excessive use of alcohol or drugs, or participate in other programs to improve health.
6. lawyer participate in programs of legal education or professional training
7. restricting areas of law the lawyer can practise
8. restricting legal services
9. lawyer cooperate in a review of the lawyer’s business
10. refund all or a portion of fees paid by client
11. lawyer be reprimanded
12. any other order the Hearing Panel considers appropriate
Disbarment
- termination of membership in the law society.
- A lawyers name is taken form the list of barristers and solicitors in the province
Role of Judges
- not choose a side
- hearken to the evidence
- asking questions to witnesses only when necessary to clear up a point
- make sure the advocates behave themselves
- follows points the advocates are making
- asses their worth and make up his mind as to where the truth lies
- If a judge goes beyond this he assume position as an advocate and not a judge for that case
Judges
- third arm of the government
- uphold the constitution
- Canadian adversarial system, the judge does not take an interventionist role
- Maintain impartiality
- What principles are given to the jury to deliberate on
- Until 1971 no formal training
- 1987 the National Judicial Institute was established on Ottawa to provide more voluntary judicial education
- Symbolic
- Private chamber
- Called your honour or your worship
- Contempt of court
- Independence, job security, and financial security
- Supreme Court of Canada: usually 9 judges: 3 from Quebec, 3 from Ontario, 2 from the west, and 1 from the Maritimes
- Provincial Superior Court Justices, Federal Court Justices of the Supreme Court of Canada are usually addressed as Mr. Justice Smith or Madam Justice Smith. In court they are traditionally addressed as My Lady or My Lord
Who is Eligible?
- good standing with their Law Society
- Superior Court Justices are appointed by the Canadian government, and the inferior court judges are appointed by the provincial government
- Ontario Saskatchewan, Quebec, New Brunswick, Newfoundland, and Yukon require at least 10 years experience as a lawyer
- The northwest territories require at least 7.
- Alberta, B.C, Manitoba, Nova Scotia, and PEI require at least 5 years
Judge – Investigation
- Judicial Council
- Investigated for complaints by the Canadian Judicial Council (CJC) and can be reprimanded and even removed from the bench for serious breaches of conduct
(a) unethical behaviour, incapability because of permanent disability, and incompetence
(b) recommendations to Parliament or the provincial government about whether a judge should be removed from the bench or disciplined - Judicial misconduct is the most serious task for apparent bias, inappropriate conduct, conflicts of interest
Civil Litigation I
Different types of Law
- contract law
- torts law
- family law
- administrative law
- Property disputes, corporate law, environmental law, mediation, commercial law, estate law, sports law, immigration and refugee claims but can also encompass things as diverse as the inquiry into the tainted blood scandal.
Legal theory
- Rule of law: Aristotle – no one is above the law
- Equal justice under the law
- Parliamentary supremacy: Charles I – tried to rule alone.
- Like cases are treated alike
Hierarchy of the Courts 1. Supreme court of Canada (9 judges) 2. Court of Appeal (3 judges) 3. Superior Court of Justice (1 judge) – Provincial Offences / Small Claims Courts of first instance - Superior Court of Justice for Ontario - court of Queen’s Bench Federal Court system - immigration law, patent law, copyright law, and tax law - trial, appeal, supreme court
Juries
- There is always a judge. Jury is optional.
- Jury member must be
(a) resident of Ontario
(b) a Canadian citizen
(c) 18+
(d) Is eligible and liable to serve as a juror on juries in the Superior Court of Justice in the county in which he or she resides - 6-8 members (unlike 12 in a criminal trial)
- Decisions can be made with a majority
- Exclusions from jury duty are:
(a) medical practitioners
(b) veterinarians
(c) lawyers
(d) judges
(e) “students-at-law”
Appellate Courts
- Court of Appeal for each of the provinces and territories and the Supreme Court of Canada
- Panel of three (majority and minority if a split occurs)
Supreme Court
- common law, civil law, and the Federal Court of Appeal
- used to be the Privy Council
- It’s the last resort, they have the final decision
- Address judge by Mr/Madam Justice Smith
- In court refer to them as “My Lady” or “my Lord”
- Orally as “The Honourable Mr/Madam Justice A. Smith
- Your Honour/ Your Worship
Bind (Binding)
- a decision of a higher court which a lower court must follow
Persuasive
- a case that should be given respect and may be followed but it is not binding
Hierarchy of the Courts
- higher courts can bind lower courts in the same geographical region
- eg: Nova Scotia Supreme Court is bound by a case from the Nova Scotia Court of Appeal
- Decisions made on the same level are persuasive
- Eg: Ontario superior court of justice and the Saskatchewan court of queen’s bench
- Other geographic location but the same level is also persuasive
- Eg: court of appeal in 2 different provinces
- Supreme Court binds all!
Foreign Decision
- UK: not binding but persuasive
- US: persuasive
- Australia: persuasive
Specific Weight to a decision
- more weight
(a) unanimous
(b) series of cases
(c) started a new precedent - less weight
(a) dissent
(b) quickly changing area of law
(c) did not consider the right things
Civil Litigation II
Case Law
- the decisions of judges as opposed to statute law. These judgement form the source of law and legal precedent
- lawyers should be clear. Simple and straight to the point.
Important Legal Terms
Precedent- a decided case that provides the basis for decisions for later cases based on the same or similar facts
- “case reporters” or “reporters” publish these precedents
Stare decisis (stand by decided matters)
- stability, consistency, and predictability
Distinguishing the case - to show that a particular case has a factual, procedural, or legal difference = ART. Battle of the precedents occurs and the level of court matters. Ratio Decidendi (root of the decision) - principle upon which the case is decided - root of the decision is one paragraph, sentence, or phrase Obiter Dicta (words in passing) - comments made by a judge in the course of making a decision in a case
Res Judicata (a matter adjudicated)
- the final decision
Ultra Vires (beyong the power of the body
- invalid
Case law
(a) Headnote
- summary of the facts, the issues, and the decision in the case
- judge in the case did NOT write this material
- could it be misleading? Or incorrect?
(b) Citation
- precise reference for cataloguing at the beginning of a case
Reading Case Law – Civil Law
- Civil Action = plaintiff and defendant
- Appeal = appellant and respondent
- Order = applicant and respondent
- Divorce = petitioner and respondent
- Italicize all names!
Format of a Written Case
(a) Style of Cause
(b) Parties
(c) Citation
(d) Court File #
(e) Court
(f) Judge
(g) Trial
(h) Decision
(i) Length of decision
(j) Keywords
(k) Headnote
(l) Judgement
(m) Authorities
(n) Lawyers
(o) Decision
(p) Judge
(q) Reasons
Case Brief
- purpose is to summarize a case in order to identify the parties, issues, and the legal reasoning used
- briefing a case breaks it down to the component parts and analyses them in order to understand the case
- in practise this helps one understand the cases that are out there, and how that might apply to your client’s particular situation
Civil Litigation III
Statute Law
- three levels of government in Canada; federal, provincial, and municipal
- the Canadian House of Commons and the legislative assemblies of the provinces and territories draft legislations
- it is not only parliament that makes laws, but powers are also delegated to other authorities to make regulations to fulfill the goals of their governing legislation
- the legislation may allow the Governor-General, Lieutenant-Governor, or Minister, board, commission or tribunal to make laws called regulations
- Legislation must be promulgated
- Gazettes: where announcements of governments are posted
ANALYSING A STATUTE!
Statutory Interpretation
- No contradictory provisions, there should not be a conflict of laws at the municipal, provincial, federal levels and perhaps the international level, it should not make demands that are not possible to comply with, and they should stand the test of time.
- Literal Rule (Plain or Ordinary Meaning Rule)
(a) if the words in a piece of legislation are clear and unambiguous they must be given their ordinary meaning, and grammatical and normal punctuation rules apply
(b) no other context
(c) a judge cannot usurp that function - The absurdity Rule (or the Golden Rule)
(a) the normal meaning of the legislation should be used unless this reading would result in an absurdity
(b) a judge is allowed to move from the literal meaning only as much as necessary to remove the conflict - The “mischief” or Purposive Analysis Rule
(a) to do this they can look to the language of the Act (perhaps in the preamble to the statute) or the Hansard or legislation committee reports
(b) the legislators were trying to cure
(c) words in question used in prior cases?
(d) Criticism - contextual analysis Rule
(a) look at the act as a whole
(b) other legislation
(c) social conditions
(d) legislators had a goal and plan for the legislation, their choice of words was done for a reason, and that all of the words are there for a reason - The Plausible Meaning rule
(a) depart from the ordinary meaning of a statute only if there is a more plausible meaning to the words
(b) normally not be able to add or delete words or change the intent
(c) change drafting errors in legislation if the court is confident that they know the intent of the drafter - The Modern Rule of Interpretation
(a) many of the characteristics of the other rules into one approach
- read grammatically and in an ordinary meaning
- the context of the legislation
- the intent of Parliament
(b) Includes the literal rule in that the plain meaning is to be examined
- the mischief rule in that the purpose of the law is to be ascertained
- the absurdity rule in the inclusion of context
- the possibility of drawing on the wider contextual analysis
- plausible meaning rules
The Role of Legislation and Case Law in a Judicial Decision – Summary
- Partnership – case law and legislation
- Evolve with the times, but there is always the option of legislators to introduce new statues
1. if there is a statute that applies? - if yes then apply it with the plain meaning, and then add another statutory interpretation tools (absurdity rule etc), if need be ..
2. is there a case that addresses this situation? - if yes, then apply that case. However can those cases be distinguished from the case at hand? Are the facts materially different than the case at hand? What will be the impact of establishing this principle as precedent?
Civil Litigation IV
Preliminary Understanding
P. 100-111 and 118-126
Steps in Civil Litigation Process
- Superior Court of Justice
(a) Investigate as much as possible
(b) Parties fully informed
(c) RCP = Procedural law
Superior Court of Justice: 4 main stages
- Pleadings
- pre-trial
- trial
- post-trial
DEFENDED PROCEEDINGS!
Basic – 2 Parties
- originating process (notice of action)
- court house to register
- fee paid
- seal affixed (issuing the document)
- service
- time to respond (default judgement) - main pleadings
- Statement of Claim
- just the facts
- not arguments
- damages - Statement of Defence
- admit that the allegation(s) are true (usually the obvious truths in the statement); deny the allegations which puts the facts in issue which must be proven at trial; state that they lack the knowledge on a particular allegation which again the Plaintiff will have to prove; or the Defendant can give their own version of the facts. - Counterclaim
- Third-party claim
- crossclaim – defendants claim against each other
- pre-trial motion
- discovery
- affidavit of documents
- examination for discovery
- testimony (oath or affirmation transcript)
- undertakings (take it under advisement) - Pre-trial conference
- costs
- trial
- testimony under oath
- rules of civil procedure - judgement/verdict
- balance of probabilities
- liable or legally responsible
- plaintiff has the burden of proving that the judge/jury should accept their version - jury trials
- any Superior Court of Justice trial may be heard by a judge and jury - Technology not permitted for jury
- damages
- special damages (tangiable)
- general damages (less clear)
- punitive damages (denunciation)
- aggravated damages (outrageous)
- nominal damages (recognition of a violation of rights) - other remedies
Civil Litigation can cost anywhere from $7,000 (Quebec) to $25,000 (Ontario)
Court of Equity
- Courts of Chancery
- Clean hands doctrine: the court will not assist someone who has committed fraud, misrepresentation, illegality or impropriety. It the person seeking help from the court of equity has not behaved in a way this is fair and honourable in the lawsuit, the court will not help.
- Equity will not suffer a wrong to be without a remedy (legal relief for the wrong committed against you) or a specific performance (where money is inappropriate)
- Injuction (stop someone from doing something)
- Declaratory Order (binding proclamation
- Contempt of Court
Civil Litigation- Conclusion
- the chief justice of our supreme court, justice McLachlin, said to the National Post that:
“access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system . . . Those with some income and a few assets may be ineligible for legal aid and therefore without choices. Their options are grim: use up the family assets in litigation; become their own lawyers or give up. The result may be injustice. “
Part 2 Review- Introduction to Tort Law
It always comes down to ‘who should I sue?’ The answer is that you can sue everyone and anyone; however, the main people you want to sue are the rich so that you can actually get some money.
- Tort law is flexible
- Negligence is relatively new to the system
- Developed case law
- Greatest number of torts today is
- There are ancient historical routes to this system
- It is about if “one person is doing something wrong to another”
- Deals with automobile accidents, slips and falls, etc.
- It is usually one on one, and cannot have anything to do with the government
Definition
- Tortus: twisted or curved
- Civil law wrongs: one person commits against another resulting in damages
- There should be some sort of damage, whether it be bodily integrity, dignity, property, or livelihood of a person.
- Negligence or unintentional torts
- Intentional Torts are within distinct categories of wrongs
- Civil law is a private law matter
- The purpose of tort is to “restore the injured person … to the position he enjoyed prior to the injury, rather than to punish the tortfeasor whose only wrong may have been a moment of inadvertence”
Basic Principles
- Cases where one party causes damage to another. There is a plaintiff and defendant
- Seek compensations for wrong doings.
- It is based on the balance of probabilities
- Some cases are governed by statute (doesn’t require you to prove the person did it, it just needs you to prove it happened), but property law is a separate class of civil actions
- One action can give rise to a tort action, an equitable remedy, breach of contract, and criminal charges.
- Exclusions of contracts
- One case can have many areas of law
- Cause of action need to be there which is the question that “is there something worth doing all this for?”
- What exactly happened including the weather, the people etc. come into factor.
Differences between Crime and Tort
- Criminal law is completely different from tort law
- Criminal – threat to society and therefore public. It deals with crimes against the state. It is there to punish criminals and incapacitate, deter, or rehabilitate.
- The victims are not taken into as much consideration as witnesses are
- The focus is on the offender
- Civil Law cause is always between 2 individuals, not the state or Queen etc.
- In civil law, everything is financed by the person who has wronged
- Most often, even when people can sure in both criminally and civilly, they choose to only do it in one due to costs.
- If it is in both courts, the civil court follows the judgement of the criminal court because they determine ‘beyond a reasonable doubt’
- Standard of proof for Civil – balance of probabilities
- Standard of proof for Criminal – beyond a reasonable doubt
- Even if someone loses in the criminal case, they can still win the civil law case
Categories of Liability in Tort
- Negligence
- Strict liability
- Intentional torts
- Other unique torts
Negligence
- Failure to take reasonable care to prevent foreseeable harm to another. It considers the relationship between the parties.
- Inadvertent rather than wilful or deliberate. It falls below a standard of behaviour acceptable by society.
- You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour, neighbour being anyone.
Negligence Today
- You are expected to do what a reasonable person would have done in the standards of the community. Standard is quite high today as there are overwhelming number of actions in civil court dealing with negligence
Continuation of Introduction to Tort Law
Conditions for Negligence Torts
- Duty of Care
- Standard of Care
- Injury and Causation
- Contributory Negligence
- Damages
Duty of Care
- Did the plaintiff owe a duty to the defendant?
- People are responsible for their inadvertent conduct when they anticipate that their conduct may cause injury to others
- They should act in a careful manner
- Was duty of care breached?
- What would a reasonable person do?
- No duty of care = case is over
- Plaintiff must prove that the defendant’s conduct gave rise to a duty of care, and that duty was owed to the plaintiff
- Foreseeable Plaintiff test
Standard of Care
- Duty of care is there, but to what standard?
- Standard of a reasonable person
- What standard of care the defendant is required to meet and what factors are to be considered to see if it was breached and on that facts of the case, can the plaintiff prove that there was a breach of the standard of care
- What would a reasonable person do?
- Was the risk foreseeable?
- Likelihood of that damage occurring?
Tort Law II
Standard of Care – Failure to act
Quebec Charted of Human Rights and Freedoms
Injury and Causation
- Must be directly caused by the conduct of the defendant
- Mental Distress
- Sufficiently close to causal connection
- The “but for” test stating that but for this, that wouldn’t have happened
- It has to be the sole cause of the injury
- It has to be reasonable foreseeable, not too remote and therefore liable
- If you didn’t know the person was weak, and hit them, it is still your fault cause you hurt them
Contributory Negligence
- Prejudicial conduct
- Plaintiff has to have contributed to the negligence of his/her own damages
- Damages can be awarded at 50% fault, etc.
- Burden is on the defendant to prove that the plaintiff was also responsible
- The plaintiff needs to be careful of what they did
Damages
- Intended to put the plaintiff in the position they would have been if the negligent act had not happened.
- Insurance plays a huge role in Personal Injury and Torts in general
- Subrogation rights are to get compensated for the money you had to pay out like how insurance companies pay to cover you and then go after the other person.
- All available evidence is just to make sure of whether the person is actually injured
- Adverse Inference: judge has the ability to look at evidence and see what’s going on- putting it all together
- Duty of Care - The Pioneers would have duty of care because it’s their job to ensure their customers are safe.
- Standard of Care - The company did not mean for them to get hurt, although they should have known that the pool would be too shallow. The risk was foreseeable.
- Breach (Was there a breach?) - There was a breach of trust
- Injury and Causation - They didn’t mean for her to get hurt, but had they told her not to install the pool, she wouldn’t have and this could have been avoided.
- Remoteness (how directly connected one is to the issue) -
- Contributory Negligence - The family is a little responsible, not too much. They let the daughter go down head first.
- Damages - The company did not intend for the little girl to get hurt.
- At trial, pioneer had no breach of duty.
- Court of Appeal
- They had duty of care because she was a loyal customer and she bought stuff
- They breach their duty because they didn’t warn her.
- But for the failure, this wouldn’t have happened.
- There was real injuries
- Coreena is a bit responsible as she did not listen to her mother. She is responsible for 20%.
Intentional Torts
- Actions wilful
