Study Guides (238,281)
Canada (115,055)
LS 101 (35)

Law Notes- Final.docx

22 Pages
Unlock Document

University of Waterloo
Legal Studies
LS 101
Frances Chapman

Law Notes: Final Civil Litigation Part 4  Good lawyer will not automatically start a civil action o Default judgment o Abandonment (give up)  If this settlement is unsuccessful- cause of action o Small claim is up to 25,000 o Lawyers decide if it is more or less than 25000 o If more than 25000, it goes to the superior court o Lawyers try and stay in small claims cause its faster and less money (don’t need lawyer)  Complex rules o Rules of civil procedures o Courts of justice act  How to file things, how to get what your client wants  Different rules for claims, family court etc o Motions  Preliminary stuff  Asking for documents from another party  Usually before the trial o Standing  Were you involved??  You cant see if you are not involved o Steps in Civil Litigation Process  Superior Court of Justice  Investigates as much as possible/parties fully informed/ Procedural Law  4 Main Stages  Pleadings (documents)  Pre-trial (before the judge)  Trial  Post-trial (huge process/ trying to get your money) o Pleading:  Basic- 2 parties  Originating process  Letting the other party know that they are being sued  Court house to register (fee paid)  Seal affixed (issuing the document)  Service (I, to court, I to the person being sued)  Time to Respond (time limited for everything)(default judgement)  Main pleadings  Statement of Claims o Facts; what you are suing for (no argument)  Statement of defence o Facts; if you are counter suing  Counter claim  Third party claim o Being in a party that they should be suing  Cross claim o Defendants claim against each other o Discovery/ Pre-trial  Basically on interrogation  Affidavit of documents  Ask questions about the document  You are under oath  A transcript is made; then brought into trial  Examination for discovery  Testimony  Oath  Transcribed  Undertakings  It is a promise to give the other party a document  Take it under advisement o Trial  Testimony under oath  If you get caught in a lie, you can be prosecuted  Rules of civil procedure o Judgement/ Verdict  Balance of probabilities  Length of time? o 4 or 5 years-> a year for judge to write the decision o You are allowed jury trials in a civil matter  Most popular in injury/insurance claims  Get a sympathetic jury  Critism o Slow to process with jury involved/ judge has to explain everything  Damages o Special Damages (hand judge receipt- crutches, doctors bills) o General Damages (less clear) o Punitive Damages (denunciation/ more damages just for the dumbness of the other person o Aggravated Damages (so outrageous) o Nominal Damages (recognition of a violation of rights)  Other remedies o The government can seize your house (the Civil Foifeiture Act)  Cost-> pay the other lawyer  Small Claims-> represent yourself  Appeals o Fewer than 1% are appealed o Questions of law (the law was applied in an incorrect way)  Enforcement o Garnishment: money is taken right out of their pay check  Paycheck-> 20%-30%  Investments and bank account o Writ of seizure of Sale  Lean on the house/ have to pay debt before selling your house o Creditor’s Relief Act  Food, clothing, bedding, furniture, tools of trade, (necessities)  Clean Hands Doctrine o The court will not help you in you are fraudulent  Court of Equity o Equity will not suffer a wrong to be without a remedy o Remedy-> legal relief  Specific performance o Remedy ordered by the court to fulfill a legal obligation TORT LAW  Tort Law is extremely flexible o Tort of negligence is NEW o Case law o Greatest number torts today= car accidents (personal injuries)  Latin term tortus- twisted or curved o Civil law wrongs  One person commits against another resulting in damages  Definition of a Tort o Negligence or unintentional torts  Ex. Car accidents/ not on purpose o Intentional torts  Within distinct categories of wrongs  Civil law= private law  Tort is trying to restore how the person was before the tort  Basic Principles of Tort o Plaintiff and Defendant o Seek compensation o Balance of probabilities o Some-governed by statutes  Property law separate class of civil action o Purpose of the lawyer is to find cause of action o One action can give rise to a tort action, an equitable remedy, breach of contract and criminal charges o Who to sue??  The people with the most amount of money o Remoteness  Is it too far fetched??  Differences o Criminal-> threat to society  Crime against the state o Civil  Object is to compensate victims for negligence or acts between 2 individuals  Financed by the person wronged  100,000’s o Overlap- torts and crimes  Assault with a baseball bat  Break into someone’s property  Pursue both?? Yes o ***criminal case first then tort law since it is only based on probabilities o Ex. OJ Simpson  Categories of Torts o Negligence  Failure to take reasonable care to prevent foreseeable harm to another  The tortfeasor’s relationship with the victims  Ex. Doctors, innkeepers  Inadvertent rather than wilful or deliberate  Conduct that falls below the standard  Example  Donoghee v. Stevenson o Lord Atkin said that a person you owe a duty of care to your ‘neighbour’ o Everyone is your neighbour  Negligence Today  Concept-> duty of care to others  Fail to do what a reasonable person would have done in the standards of a community  **Conditions of Tort Law** o Duty of Care o Standard of Care o Breach of that care o Injury and causation o Remoteness o Contributory negligence o Liability and damages 1. Duty of Care a. Does the defendant owe a duty of care to the plaintiff???? i. People are responsible for their conduct b. If there was a duty of care, was it breached? c. Is it reasonably foreseeable? Reasonable person d. No duty of care?? CASE DONE e. Decision i. Yes there was a duty of care on the manufacture ii. First time a company was guilty f. Foreseeable plaintiff Test i. Plaintiff must prove that the defendant’s conduct gave rise to the duty of care g. Has to be a direct relationship 2. Standard of Care a. Duty of care, now what standard is required? b. Standard of a reasonable person c. Reasonable person in the same circumstances? d. If so, are they negligent e. Re-look at facts f. ** what is a reasonable person? i. Imaginary person ii. Not perfect (normal intelligence/ general and approved practice) g. **foreseeable risk? i. The defendant must have ii. Likelihood that damage will occur and how severe the harm will be if it does occur, but they wilkl also weigh any social utility of the act 1. Legislation 2. Industry standards 3. Customs: profession that has its own rules h. Failure to Act i. Misfeasance- did something but did it wrong ii. Nonfeasance- not doing something iii. Statutory obligation to act (doctors, police etc) iv. People in distress v. Teachers, police, life guards are held to a higher standard 1. Individual innocently or negligently created the situation vi. Attempt to Aid 1. Prevent law suit 2. Nova Scotia- Voluntary act a. If you are trying your best to help someone and hurt them (you cant be liable) 3. Breach of Standard a. Was there a breach (violation)?? Yes or no 4. Injury and Causation a. Was the injury actually caused by the defendant? b. Mental distress c. The ‘BUT FOR’ test i. ‘but for’ the defendant actions the tort would have never accured ii. ‘sole cause’ of the injury- just part of it d. Facts are important e. Reasonably foreseeable, not too remote, therefore liable f. Example: TCC i. Handrail was made of metal not rubber ii. “but for”- there was nothing brought up about the rail 5. Remoteness a. Remoteness and the ‘thin-skulled Plaintiff’ rule b. Not responsible for every outcome c. You take the plaintiff as he or she is i. Sometimes so unexpected d. Example: Leech Brain and Co i. Gets burn, got cancer and died ii. The company was liable 6. Contributory Negligence a. Prejudicial conduct= ‘contributory negligence’ b. Were both parties at fault c. Apportioning i. 50% of your fault, thats how much you will pay d. Burden is on the e. Reasonably prudent erpson f. Example: Patterson v Wickberg i. Split liability 7. Liability and Damages a. Intended to put the plaintiff in the position that they would have been if the negligent act had not happened b. Injury, fatality, and property issues c. Insurance d. Subrogation rights e. All available evidence f. Example: Terry v M i. Adverse inference: took down Facebook account because it changed his ‘social life’ appearance  Intentional Torts o Actions wilful, deliberate and conscious o Long history o Consequences are substantially certain o Transferred intent  Commit one tort and accidently commit another  Liable for both  Trespass to Another- BATTERY o Direct interference with another person o Right to have person secure from unlawful touch (kiss etc) o Burden of proof: fails to the defendant  Assault o Reasonable apprehension: you think someone is going to hyrt you  No direct contact: just a threat of immediate danger  Intentional Infliction of Nervous Shock o Psychological harm  3 elements  Outrageous or extreme conduct  Mental illness or disorder  No predisposition  False Imprisonment o Wrongfully incarceration o Psychological o Plysical authority o Attempt escape o Fairly narrow, must be total o Once plaintiff made case; onus to the defendant to show justified o Charter  Unique Torts o Catch-all Category  Nuisance  Private Nuisance: unreasonable interference with the use of their land  Public nuisance: e.g. Crack house/brothel the rights that are given to all citizens  Behaviour usually ongoing  Private not actionable unless there is an unreasonable interference  Defence: lawful/ reasonable  Distinct from trespass to land  ***nuisance is the QUALITY of the use; trespass involves possession and use of property o Examine the nature of the wrong and the extent of the interference  Defamation  Intentional or unintentional  Publication of false statement about another person that discredits them in the eyes of others  Damages??  Innuendo: would a reasonable person acquainted with the plaintiff understand who the statement was referring to (not directing saying it)  Read or heard by third party-> published or broadcast o One person is still defamed o If someone over hears who whispering to someone; still can be charged  Libel: written defamation (could be more serious/ permanent)  Slander: spoken defamation (also sounds, physical gestures, facial expression  Media: retraction/ apology-> short period of time to do so o Way more open in the US o Canada media has to be careful; they have to know it is true before you publish it (keep their sources)  Truth, no one on plaintiff o Truth is a defence of defamation (absolute defence) o E.g. Henderson v. Pearlman et al.  Vicarious Liability  You can be responsible for the actions for someone else o E.g. employer-employee  It has to be during the cause of employment  The employer may not have anything to do with the problem however they can still be sued  MO v. EN -> looked at parental act  Occupiers Liability (the Home Alone tort)  duty on owners of the land  protect those invited and trespssers  steps to warn (snow, ice, floors)  invitees o highest standard  licences o lesser  Trespasser o Even if its a kid that wandered into your back yard and drowns-> your fault o Multiple Tortfeasors  Can the loss to the plaintiff be divisible  Each defendant acted separately to harm; each attributed to own tortfeasor o Joint Tortfeasor  More than one tortfeasor  Not matter major or minor contribution  Encourages each other  One multimillionaire??  You can just sue them  Double recovery not allowed-> 100% of amount from both  Defences of Torts o No Negligence  Massage therapist, chiropractor, boxers o Content  Boxing match  Consent revoked  Difficult to stop?  Medical treatment  Jehovah’s Witnesses (will not allow blood transfusion)  E.g. Norberg v. Wynib  Addicted to drugs; had sex with the doctor for the drugs  Content did not apply because of the uneven relationship  Weaker party could not choose  Damages o General: pain or suffering o Replevin: want only a specific object returned; no money or anything Contract Law  Important function to commerce  Protect our property, prevent fraud, and ensure that people live up to the deals that they make  2 Ideals o Individuals should be given freedom of choice o  Power dfferential  Contracts can be ORAL and accepted even in the form of a nod/ handshake  Basic Principle of Contract Law o Largely common law study o Law of contracts is universal o Sale of Goods Act o People voluntarily go into contracts and anyone can go into a contract o Looks at the ACTIONS of the parties and one party that was UNEQUIVOCALLY accepted by others o Not concerned about the fairness or appropriateness of the bargain struck o Unfair or conscionable contracts  Disorder, could not think right o ***if in a contract, the court WILL NOT undo it, and if not done yet, they WILL NOT ENFORCE IT  Definition o A contract is defined as an AGREEMENT between two or more parties, which is binding o Starts with a promise o Free to contract  Fundamental principles of law o Terms of contract  Expressed (stated) or implied  Language must be reasonably certain  E.g. auction  Biolateral Contract o 2 specific people-> each agree to do something o Offeror and offeree trade promises o ‘classic contract’  Unilateral Contract o ONE party promises to do something in exchange for an ACT o E.g. reward o Problems: offer world at large/ multiple people??/ hardship o Subsidiary promise: if you started doing the act, the case will be opened o this is why there is ‘fine print’-> stops companies from being sued  Written Contracts o Contracts do not need to be in writing- but good evidence o Statute of Fraud- 1677  People could falsely accuse people  Perjury and subordination were rife o Several categories that must be in writing  Guarantees and indemnities  Not performed in 1 year  Property  Promises in consideration of marriage (dowrey)  Executor to a will  Misc. Other statutes  Sale of Goods Act: goods offer 50$ must be evidence in writing  Electronic documents  Written documents are taken seriously  Cannot change the terms-> no opportunity to negotiate  Standard from contracts  Even if it is in writing, there can still be disputes that the contract is not complete (forced into it, were implied terms)  Ingredients to a Contract o Consensus o Consideration o Intention 1. Consensus a. Has to be reach between the parties (agreement) b. ‘ad idem’ or a ‘meeting of the minds’ c. Reasonable person test i. What would a normal person do d. Not allowed to escape from a contract by claiming not to read it or understood e. Consensus has three elements i. OFFER 1. Statement of promise of willingness 2. Offer may be expressed or implied 3. Outward indications (nervous/ sweating) 4. Conduct 5. Agreement to agree 6. **Advertisement is NOT an offer a. Often made to attract the public b. Called ‘invitation to treat’ 7. Termination of an offer a. Refusal b. Lapse of time c. Lapse of reasonable time- d. Failure to condition e. Revocation-> offeror is in charge f. Counter offer-> new terms (original offer is void/ off the table) ii. ACCEPTANCE 1. Expressed terms and conditions are acceptable and that the individual is willing 2. Communicated 3. Clear and unconditional acceptance 4. Offer and revoked at any time 5. Reasonable person test 6. Place a. Communication is completed where it is received by the offeror 7. Difficult when the parties have exchanged iii. COMMUNICATION 1
More Less

Related notes for LS 101

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.