Chapter 11/12 Test

What is the dollar limit for claims heard in the Small Claims Court?

$3,000-$10,000.

Why is trespass to land and battery to land similar?

-Both are a form of trespass.

Cause of Action

A valid reason why someone sues

Vicarious Liability

Holding a blameless person responsible​ for the misconduct of another.

Mediation

Intervene in a dispute in order to resolve it

Arbitration

The use of a third party (arbitrator) to settle disputes

What are the two best defences in a negligence action?

Voluntary Assumption of risk Inevitable Accident

Defence of Others

When a third party comes to the aid of a person if it is reasonable to assume that the person is in some degree of immediate danger. Ex: A parent aiding a child.

Professional negligence

malpractice; not performing standard of care and harm results; part of tort law, civil law.

How do judges calculate loss of income?

-consider what the plaintiff was earning at the time of the accident -consider what they would earn in the future -calculate average profession/trade pay

Give the advantages of arbitration.

-Takes days to weeks to finalize -Involves an expert -More business like but less formal than litigation -Significantly less expensive than a trial -Conducted in private, not public -Resolution may permanently satisfy both parties.

Give the disadvantages of ADR.

-The privacy aspect can also be disadvantage -There are some that may want to publicize the outcome as an example for people involved in similar disputes. -Where there is a need to establish legal precedent or where the outcome of the case could affect a large group, the court is probably the more appropriate forum.

What types of appeals will the Supreme Court of Canada hear?

-Cases from the Federal Court . -Cases from the Provincial Court of Appeals. -Cases of national importance or in which are an important issue or questions of law must be decided or interpreted.

Name 5 defences for trespass.

-Consent -Self-Defence -Defence of others/property -Legal authority -Necessity

Identify the four options a defendant has to dispute a plaintiff's claim.

-Defence/Reply -Counterclaim -Third party claim

Identify the key elements that a plaintiff must prove to succeed in a negligence action?

-Duty of Care -Breach of a duty of care -Causation -Actual harm or loss -Burden of proof

What are the challenges of calculating loss of enjoyment of life?

-How much money is necessary -How much they suffered cannot be calculated.

What are two remedies for a nuisance?

-Injunction -Damages.

What is intentional tort? Provide 3 examples.

-Intentional tort is when a person deliberately causes harm or loss to another person. -Assault -Battery -False imprisonment

Name the three common classes of people who enter another's property.

-Invitees -Licensees -Trespassers

Who has legal authority?

-Law enforcement officers -Police -Shop owners

What are the two types of General Damages?

-Loss of income, future earnings,and future care. -Loss of enjoyment of life and pain and suffering.

What are the challenges of calculating future income for younger victims?

-May not have entered workforce -May not have finished high school or post-secondary -May not have made plans for future yet

Identify four key pieces of information that must appear on a plaintiff's claim.

-Name and address of plaintiff -Name and address of defendant -Amount of money the plaintiff wants to claim -Summary of the plaintiff's reasons for the claim

Identify 6 defences for trespass

-Necessity -Consent -Self -Defense -Defense of others -Defense of property -Legal Authority

Name four other options for a defendant in a civil dispute.

-Payment into court -Default Judgement -Out of court settlement -Pre-trial conference

What is the purpose of Punitive Damages?

-Punish the defendant for bad,insensitive or uncaring behaviour. -The intention is deterrence: discourage both the defendant and the public.

Outline the benefits of an out of court settlement.

-Saves both parties time and money. -Allows both parties to make a formal/ informal offer to settle the dispute instead of going to trial.

Give the advantages of ADR.

-Saves time -Saves money -Effective rate of success (80-85%) -It gives the parties involved privacy and control.

Name the main intentional torts.

-Trespass to another person -Trespass to land -Nuissance

Describe the defences for defamation.

-Truth -Absolute Privilege -Qualified Privilege -Fair comment

Describes the possible side effects/result of defamation.

-lower reputation -trouble keeping a job -strained friendships -ridicule -exposure​ to hatred

Outline the steps of defence of property.

1. Ask the trespasser to leave 2.if they don't listen then you can use reasonable force 3.if they try to enter your property you can use force as well as long as you don't set up a trap or make it deadly for them.

What are the 3 types of torts?

1. Intentional 2.Negligence or unintentional 3.Strict Liability

Name 3 methods of ADR or alternative dispute resolutions.

1. Negotiation 2.Mediation 3.Arbitration

Name 3 options a successful party has to collect from the losing party on a judgement.

1.Garnishment 2.Seizing Assets 3.Examination of the debtor.

Name 3 types of ADR.

1.Negotiation 2.Mediation 3.Arbitration

Name five courts that hear civil disputes/ appeals.

1.Small Claims Court 2.Provincial Supreme Court 3. Court of Appeal 4.Federal Court of Canada 5.Supreme Court of Canada

Explain Mediation.

A process in which a third neutral party helps the two parties reach a solution to their dispute.

What is a contingency fee and what is it's purpose?

A contingency fee is a system that exists in all provinces in Canada , except Ontario.It is a system that allows people who cannot pay legal fees in advance to take action. If they win, they must give a fee to their lawyers based on a percentage of the damages awarded.If they lose the case, the lawyer receives nothing.

Injunctions

A court order directing a person to do or not do something for a specific time period

Absolute Privilege

A defence against defamation for statements made in legislature and judicial proceedings.

Qualified Privilege

A defence against defamation for those whose work requires they express their opinions

Voluntary Assumption of Risk

A defence for negligence, that the plaintiff clearly knew the possibilities and risks, and made a choice to do so.

Third Party Claim

A defendant claiming that another new party being brought in is responsible for or should share the plaintiff's damages

Counterclaim

A defendant's claim in response to a plaintiff's related claim; action between two opposing parties

Necessity

A defense requiring proof that the defendant was forced to take an action to avoid a greater harm. Ex: In a storm

Negligence

A failure to exercise reasonable care that results in injury to another and damaging actions that are careless, unintentional and unplanned.

Examination of the Debtor

A judges questioning of a plaintiff who owes court ordered damages about his or her ability to pay in order to see what arrangements can be made

Claim

A legal document in a civil action outlining the plaintiff's case.

Product Liability

A manufacturer or seller being responsible for the products being held by the consumer

Explain Arbitration.

A more formal process where a selected third party (called the arbitrator) receives statements and arguments from both parties and acts a decision maker.The arbitrator's decision is final and binding.

What is nuisance and how does it differ from trespass to land?

A nuisance involves one person's unreasonable use of land that interferes with the enjoyment and use of adjoining land by other people or community.The harm must be serious and continue for some time

Invitee

A person on property for a purpose other than a social visit

Licensee

A person on the property for their own benefit and not the benefit of the landowner. A social guest or workman on the property.There is a lesser standard of care required.

Trespasser

A person who enters or crosses another person's property without the legal right

Occupier's Liability

A person who has control of property owes a duty of care to make the property safe for other people

Occupier

A person who has immediate supervision and control of the premises and the power to admit and exclude the entry of others in an occupier

Host

A person who invites on over to private or public property

Explain Garnishment.

A remedy that involves an outside third party.For example, if the losing party is owed money from a third party, the winning party can obtain a court order, demanding them to pay their owed money to the court which is given to the winning party. The third party is only responsible for their owed amount, not the whole amount of the losing party.

What is the purpose of a litigation guardian?

A responsible adult either over the age of 18 or 19 depending on the province, who represents a minor in a civil trial that is suing someone over the amount of $500.

Specialized Standard of care

A special level of care or degree of caution from a professional standpoint

Duty of Care

A specific legal obligation to not harm other people or their property

Litigations

A voluntary surrender of a right or privilege

Waiver

A voluntary surrender of a right or privilege

Inevitable Accident

An accident that occurred that could not be obstructed or stopped

Act of God

An act beyond human control, such as lightning, flood or earthquake.

What is an intentional tort?

An act that takes place with malice and with intent to cause harm. Assault, battery, duress, invasion of privacy, fraud, defamation of character, breach of confidentiality.

Out of Court Settlement

An agreement reached between the parties pending a lawsuit that resolves the dispute to mutual satisfaction

Explain Negotiation

An informal and voluntary dispute resolution between the two parties only.They determine the process,communicate with each other and reach a mutual agreement.They can create a contract so that the agreement must be followed.

Unintentional Tort

An unintentional wrongful doing

What are nominal damages?What is the purpose of it?

Awarded when a judge wants to indicate support for the plaintiff and award a small sum of $1-$100. It is given when there is little to no loss or harm but given to a plaintiff for a moral victory.

Nominal Damages

Awarded when a wrong has occurred, without finicial loss being suffered (usually $1.00)

Name 3 things that could be subject to garnishment.

Bank accounts, unpaid rent, money owing on contracts, portion of the losing party's wages.

What happens during an examination for discovery?

Both parties partake in a question and answer period with their lawyers under oath.Its purpose is to limit the possibility of surprise during court.All information is used and transcribed for trial.

What are special damages? Give 3 examples.

Compensation for out of pocket expenses spent because of injuries before the trial. For instance, an ambulance fee, medication, lost wages, therapy, drugs etc.

Special Damages

Compensation to the victim for measurable monetary loss (loss of wages)

How do the courts divide the fault between two parties when both are at fault?

Contributory Negligence

What are aggravated damages?

Damages awarded to the plaintiff because of the outrageous behaviour that causes the plaintiff to be harmed in a mental shock or, suffering because of the defendant's behaviour. For example, a drug company willingly selling a harmful product to the plaintiff knowing the effects.

Pecuniary Damages

Damages that can be estimated and compensated by money

What are general damages?

Damages that cannot be calculated easily or precisely.They require and judge/ jury's discretion.

Non-Pecuniary Damages

Damages that cannot be measured by money but are compensated for with money

Libel

Defamation In a printed or permanent form (Pictures, rec

Slander

Defamation through spoken words (a speech)

Defence of a Third Party

Defence that a third party can come to the aid of a a person if its reasonable to assume that the person is in some degree of danger

Negotiation

Discussion aimed at reaching an agreement

Give 2 examples of nuisance.

Environmental pollution, picketers who protest illegally on a property.

Examination for discovery

Examination of evidence by both sides before a civil trial.

Medical Negligence

Failure to meet the standard of practice of an average qualified physician practicing in the same specialty

Statue of Limitations

Forbids a prosecutor to press criminal charges on crimes committed over a long period of time

Plaintiff

In civil law, the party who brings a suit or some other legal action against another (the defendant) in court

Why does the burden of proof shift to the defendant in motor vehicle cases?

In order to prove that any loss or injury did not result of the defendant's negligence.

What is an injunction?

Instead of money, the plaintiff may want the courts to order a person/party to do or not do something.

Punitive Damages

Intended to reform or deter the defendant and others from engaging in conduct similar to the case

Battery

Intentional physical contact that is harmful or offensive to the other person; the completion of assault

What is the importance of a pre-trial conference?

It is the last chance for parties to resolve the dispute before the trial.It allows each party to hear a basic summary of each of the other's case so there are no surprises at court.It can give both parties an idea of what the judgement may be. They can discuss openly the elements of the case without the trial judge.

What happens if a settlement can not be reached by an out of court settlement?

It leads to a civil trial by either a judge alone or a judge and a civil jury of 6 people.

What are the benefits of examination for discovery?

It saves money, court time and makes settlement easier, limits the possibility of surprise in court, enables both parties to disclose all documents and allow for inspection of objects.

Default Judgement

Judgment in favor of either party based on some failure to take action by the other party.

Informed consent

Patient gives consent for a procedure to be performed in full knowledge of the procedure and the risk it entails

What are some examples of cases heard in Provincial courts?

Major injuries, medical malpractice, any civil cases above the small claims amount of $3,000-$10,00.

Pre-trial Conference

Meeting of the parties to a case conducted prior to trial

General Damages

Monetary recovery in a lawsuit for injuries suffered for which there is no exact dollar value which could be calculated

In order to succeed, a plaintiff's burden of proof must be viewed as _____________ in order to succeed.

More likely than not.

How can an offence can be a tort and a crime:

Most acts which could produce criminal liability can also produce civil liability. Ex: If a person breaks into someone's property, It may be a crime of break and enter, and also the tort of trespass to land.

Contingency Fee

Payment for legal services in a civil case based on a percentage of damages if the case is successful; if the plaintiff loses the cases and services were arranged on a contingency basis, the plaintiff pays nothing.

Identify two factors that the defendant must prove in order to prove the defence of voluntary assumption of risk.

Must prove that the plaintiff clearly knew of the risk Must prove that the plaintiff made a choice to assume that risk

What are the 2 main categories of General Damages?

Pecuniary and Non-Pecuniary Damages

Legal Authority

Permission from someone with a legal degree that someone can act or order others to act

Garnishment

Procedure to address outstanding court-ordered payments between parties by redirecting money or goods owed by a third party

Fair Comment

The right to criticize openly and honestly

Tresspasser

Someone who intentionally and without consent, enters another's property or without legal consent.Occupiers must exercise a reasonable standard of care. They owe a duty of common humanity to act with at least with at least minimal degree of respect for the safety of all who come to their property.

Allurement

Something that is inviting or enticing to children and could result in their harm eg. pool,bells on an ice cream truck.

Balance of Probabilities

The standard of proof required in a civil case in order for a plaintiff to succeed in proving the case against the defendant

Reasonable Person

The standard used in determining if a person's conduct in a particular situation is negligent

Defence of Property

The use of reasonable force to defend property in which you are in legal possession of.

Liability Insurance

System of risk financing that protects accused from lawsuits

Explain Seizing Assets.

Taking legal possession of the debtor's property and selling it to settle the judgement.

Defence

The accused and his or her legal rep; a reason a defendant or set of circumstances that might relieve a defendant of liability

Defamation

The act of uttering or publishing false and malicious statements that injure a person's fame or reputation

Cause in Fact

The action or object that causes the plaintiff's injury

How does the Balance of Probabilities and Burden of Proof differ from each other?

The burden of proof in civil trials, where the plaintiff only has to prove that the events took place in the way they claim, not beyond a reasonable doubt like in criminal trials.

Remoteness of Damage

The damage must be a foreseeable type

Causation

The fact of being the cause of an effect, result or consequence (the cause of death)

Motor Vehicle Liability Insurance

The injured party may be able to recover money from the insurer of the defendant's vehicle

What happens after the trial in a small claims court?

The judge gives an oral judgement while all parties involved are still present.

What happens after the trial in higher courts?

The judge usually needs more time to review the evidence and consider the case itself and the relevant law. The judge is then said to reserve judgement, delaying the decision until all the evidence has been examined.

Standard of Care

The level of care, or degree of caution, expected when a reasonable person is carrying out an action

Vicarious Liability

The principle of holding a blameless party responsible for another's action (bus drivers company on incidents while driving)

Foreseeability

The quality of being what a reasonable person should expect or anticipate as a result of certain actions

Explain Examination of the debtor.

This is a last resort method to obtain a judgement.This is where the defendant is ordered to court to satisfy the judge if they have the available resources to settle the claim. They are examined under oath regarding their assets,income and any money owed to others.

Examination of Discovery

This is where lawyers for each party question people involved in the case before court cases

Malicious Prosecution

To bring up a lawsuit intentional to generate profits

What is the purpose of civil law?

To compensate/ award damages to the victim

What is the intent of aggravated damages?

To punish or deter defendants. To compensate the plaintiff.

What is the purpose of ADR?

To resolve civil disputes quickly without the use of the courts.It also saves money and allows both parties more control over the outcome.

False Imprisonment

Unlawful physical restraint or detention

What are some examples of cases heard in small claims court?

Unpaid rent, minor injuries, unpaid bills and consumer debts.

Neighbour Principle

Used in negligence cases to determine whether a duty of care was owed to the person injured. A person must take reasonable care to avoid acts and omissions that can reasonably be foreseen as likely to injure their 'neighbours'; that is, the people who would be closely and directly affected by their acts or omissions

When is a minor expected to meet an adult standard of care?

When they partake in adult activities such as driving or riding a trail bike.

Define Tort

a wrongful act or an infringement of a right (other than under contract) leading to legal liability.

What is assault and how does it differ from battery?

in tort law, it occurs when the victim has serious reasons to believe that they are in immediate danger or fear that bodily harm may occur. No physical contact is necessary. Battery is the follow through of an assault where there is unlawful and intentional touching without consent.It may exist with no injury at all.

Defendant

n. A person against whom a suit is brought.

Contributory Negligence

negligence on the part of the victim that helps bring about his or her own injury or loss

Litigator

one that prosecutes or defends by pleadings, evidence, and debate in a court.