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Midterm

Civil Litigation Part IV After Midterm.docx

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Department
Legal Studies
Course
LS 101
Professor
Frances Chapman
Semester
Fall

Description
1 Civil Litigation Part IV -Preliminary understanding -Pages 100-111 and 118-126 give you a general sense of the civil law system -Good lawyer will not automatically start a civil action -Out of court settlement (90 percent settled) -% end in: -Default judgment; -Settlement; -Abandonment -Diversion to ADR -If this settlement is unsuccessful cause of action -Small claims = $25,000; Higher go to Superior Court -Complex rules -Courts of Justice Act, R.S.O. 1990, Chapter c. 43 and the regulations under the -Rules of Civil Procedure (RCP) R.R.O. 1990, Reg. 194. (Has all the rules) -Small claims, Family Court, Court of Appeal -Motions -Pulmonary actions/matters -Standing -Somebody who is allowed to sue someone else Steps in Civil Litigation Process -Superior Court of Justice -Investigate as much as possible -Parties fully informed -RCP = Procedural law Superior Court of Justice -4 Main Stages -Pleadings -Making your claims -Pre-Trial -Motions need to be made? -Trial -Post-Trial -Has to be enforced 2 Defended Proceedings DONT HAVE TO KNOW ALL THESE STAGES***** Civil Litigations -Pleadings -Basic 2 parties and -Originating process - Notice of Action -Court house to register 3 -Fee paid -Seal affixed -Issuing the document -Service -Time to respond -Default judgement (always be aware of documents) -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 -Defendant can sue Plaintiff -Third-party claim -Defendant can sue a third party -Crossclaim defendants claim against each other -Pre-trial motions -Discovery -Go before a court reporter (ask questions) If company (ask one employee) -Affidavit of documents -Examination for discovery -Testimony -Oath or affirmation -Transcribed -Undertakings -Take it under advisement (make an undertaking if that document exists) -Pre-trial conference -Judges give truth; should never go to trial, or should -Costs -Other parties lawyer, if you lose have to pay other sides lawyer and yours -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 -Length of time? -Can take up to many years if its a difficult trial -Jury trials -Section 108 (1) of the Ontario Courts of Justice Act provides that in an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided. Thus, any Superior Court of Justice trial may be heard by a judge and jury. -2005-2006 = 6,839 civil trials, 1,598 or 23% were juries (74% of those motor vehicle accident cases) -Criticisms -Technology 4 -Damages Special damages Tangible Out of pocket expenses i.e. crutches, therapy General damages Less clear Pain and suffering (unclear for how much its worth) Thornton (Next Friend of) v. Prince George School District No. 57 [1978] S.C.R. No. 7 (S.C.C.), and Arnold v. Teno, [1978] S.C.J. No. 8 (S.C.C.) and Andrews v. Grand and Toy Alberta Ltd. [1978] S.C.J. No. 6, the Supreme Court found that general damages should be capped at $100,000, or approximately $275,000 to $300,000 in current dollars. Punitive damages Denunciation Deter others to do what defendant has done Aggravated damages SO outrageous Racist slurs, worst behaviour Nominal Damages Recognition of a violation of rights You are right, but here is a small amount of money ($100) -Other remedies - The Civil Forfeiture Act is No Joke! British Columbia (Director of Civil Forfeiture) v. Rai, [2011] B.C.J. No. 241. -Government can take homes away if you are arrested -Found $282 000 thousand dollars for grow-ops in rental properties -Had no idea that this was going on; doesnt matter if he knew or not -Willfully blind; allowed government to seizure rent to government and the houses -Statement of Claim you have to ask for these damages or you wont get them -Throw everything and see what sticks -Costs -Pay the OTHER lawyer!! -Small Claims Court -Limits? Alberta $25,000 British Columbia 25,000 Manitoba 10,000 New Brunswick 30,000 Newfoundland 25,000 Northwest Territories 10,000 Nova Scotia 25,000 Nunavut 20,000 Ontario 25,000 Raised in last 2 years from $10,000 PEI 8,000 Quebec 7,000 Saskatchewan 20,000 Yukon 25,000 -Appeals -Fewer than 1% are appealed -Question of law -Misunderstood facts (reason why to appeal) -Apply law incorrect way -Enforcement Garnishment Pay cheque
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