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Western University
Philosophy 2080
James Hildebrand

Terms & Definitions Terms Definitions Common Law Judge-made law Case precedent Ratio Decedendi Binding part – reason for decision Form body of common law Obiter Dicta Everything else in the decision Trial Court Ontario Superior Court of Justice First place where court makes decisions Judge or jury hears evidence & decides facts Appeals Ontario Court of Appeal When party of suit does not agree with decision Find mistake in law – only way to support appeal (do not hear evidence) Many judges – 3-5 judges can sit on every case Supreme Court of Bind trial courts & appeal courts of every province Canada Final decision 9 judges – all must sit on a case Majority Decision of court that decides outcome of case Concurring Judges who agree for different reasons Dissent Judges who disagree with majority decision Public Law State has interest in body of law State has onus of proof Need to prove beyond a reasonable doubt Private Law Resolves disputes between individuals Person injured brings forth the “action” – plaintiff has onus of proof Need to prove on balance of probabilities (51% likely) Concurrent liability Person can be charged criminally & still be sued civilly Tort Law Actionable wrongs (something you can sue for) Features:  Doer & sufferer are connected  No individual goals for deterrence or compensation  Plaintiff has right against defendant, correlated to defendants duty to plaintiff  Duty violated is right owed to plaintiff  Matters to individual plaintiff specifically – not for the public  Plaintiff entitled to remedy that defendant is required to give  Adjudicative function – not utilitarian but to resolve disputes Cause of action Person injured has this Style of cause Title of case Intentional Torts Trespass Libel/slander Unlawful confinement Assault (threat of violence) Battery (application of force) Conversion (taking of property without permission) Actionable per se Actionable Per Se Actionable – something you can sue for Per se – plaintiff does not need to show actual harm Unintentional Torts Requires fault to impose liability Based on what the defendant should have known – lacked intention to be careful Negligence Person was careless in their actions and by being careless caused injury/harm to others Elements:  Duty of care  Standard of care  Breach of standard of care  Causation  Damages Loss Spreading Law should make manufacturer insurer for consumer Should be spread among public as cost of doing business Liability is seen as tax on business activity Takes away from traditional negligence law – money becomes measure of plaintiffs claim & takes away from interaction Loss Fixing Insurance should have no impact or relevance – should be on tortfeasor (defendant) Legal Realist Says judges do what they want to further policy & don’t pay attention to principle Positive Law Judges are discovering principle but not making it Common law is positivistic because relies on and through application helps to establish settled principles of law that are “written” in the judgments of the courts Laws that have been duly enacted by a properly instituted and popularly recognized branch of government Aristotle 2 approaches to law: Corrective: private law – tort law Distributive: for the greater good, public law Kanatian Notion Private law is based on nature of humans as self-determining, responsible for their actions If people are free-willed & self-determining – individual responsibility does not entail policy objectives American Approach  Concerned with compensating injured plaintiffs  Not concerned with apportioning fault  Businesses can bear cost of compensation  Seem to assume insurance is available  Lawyers take a contingency fee (if they win they receive part of the damages)  bigger rewards  insurance is bigger Canadian Approach  Legislations are more likely to assist  Courts stay out of public policy because they have more socially minded policy  Traditional tort – less concerned with social implications  Consequences for injured plaintiffs less severe Plaintiff Injured party or individual doing suing Pursuer Defendant Party being sued Wrongdoer or tortfeasor Pleadings Documents setting out allegations of the parties to law suit – make plea before court Statement of Claim Plaintiff’s pleadings Setting out allegations of wrongful conduct Outlines remedy sought Statement of Defense Defendants pleadings Why defendant claims he did nothing wrong Appellant Party appealing decision – either plaintiff or defendant Respondent Party who responds to appeal – opposite to appellant Duty of Care Legal duty owed in negligence case Establishes foreseeability as test for liability & foreseeability is for a fair reasonable person Objective What should any reasonable person foresee Reasonable Person Controversial to decide Standard Subjective Person What did this defendant actually foresee Standard Foreseeability Depends on proximity to act Thin-Skulled Plaintiff  Duty of care must be established & breach of said duty Rule  Liability must be established  Tortfeasor takes his victim as he finds her & is responsible for all injury caused by wrongful act  Pays full extend Vicarious liability  Liability through actions of another  Ex. employers are vicariously liable for damages caused by employees 4 Factor Test
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