Ch.1 + 2 - Bus 393

civil law system

civil law system

codified - only used in Quebec; basically judges don’t need to follow previous interpretations or rulings of similar cases when deciding the verdict —» just need to follow the rules infront of them

common law

used in the rest of Canada - basically follows the interpretations and previous rulings set by judges in the past —» when making decisions/deciding verdicts, judges must take into consideration these old interpretations

doctrine of precedent

stare decisis —» the notion that rules from previous cases will be enforced in future cases

canadian charter of rights + freedom

made in 1982 to protect citizens from too much gov’t interference; here was where the freedom of expression, legal rights, and equality rights were established —» people vs gov’t /// does not protect property rights or economic rights

constitution of 1867/1982

this was basically to join ontario, new brunswick, nova scotia, and quebec to join Canada + to establish the structure of gov’t and divide powers

section 91

this is made up of all the laws created by the federal gov’t; here we see citizenship, criminal law, military/national defense, banking + printing of money, postal service, intellectual property, tax, shipping, + interprovinincal trade and commerce

section 92

welfare of people - departments governed by the provincial gov’t; education, healthcare, administration of justice, social services, property rights, direct taxation, and management of natural resources

municipal gov’t

are created by and given power by the provincial gov’t infrastructure, fire + police services, water services, local transit, libaries, garbage collection

also make by-laws that protect the safety of properties

concurrent jurisdiction + doctrine of paramountcy

when federal + provincial overlap in their law-making jurisdiction; usually agriculture + environment

when they have conflicting laws, judges will always choose federal law

substantive law

rights and obligations of individuals

procedural law

putting substantive law into action —» basically how they will be enforced

purpose: ensure a fair process + consistency in the enforcement of substantive law

public law

govern relation b/n people + gov’t

business involved with the gov’t, criminal law, administrative law

private law

governs relation b/n people (personal, social, commercial)

civil law

law of torts, property, contracts

criminal law

someone charged = public law

provincial gov’t dont make criminal laws, they make regulatory offenses

convinction for provincial offenses does not go on the criminal record

lawsuits

purpose is to compensate the one who has been wronged

civil cases are only concerned with defendent is liable or not

burden of proof

prove the case in court

standard of proof

the degree of evidence needed to prove allegations

balance of probabilities

standard of proof in civil law where one series of events is more probable than the other

administrative law

concerned with the regulation of businesses —» rules created and applied to gov’t agenices + decision-making power

area of public law

administrative agencies

gov’t bodies created by legislation to regulate or oversee activities that requires specialized knowledge

3 functions —> advisory, operational, + regulatory

litigation

lawsuit;

costly + time-consuming

must pay 1/3 to 2/3 of your opponent’s legal court costs if you lose

adversary

when the lawsuit is resolved

pre-litigation

this stage includes talking to lawyers + getting advice

lawyers can pitch in and make offers/statements on a “without prejudice” basis

limitation period

this is the period in which cases must be brought, after this you cannot

it begins from the moment you had a reason to sue, usually the window lasts 2 years

Alternative Dispute resolution

this includes mediator or arbitration

this can be used to avoid legal costs and court vists

mediator

third party individual that aids in negotation between the parties but cannot make any binding or “final word” decisions —» just there to mediate

arbitration

this is more formal process and is often written into contracts as a form of dispute resolution

the arbitrator does have fees and makes a binding decision at the end

BC court of appeal

they ensure that the BC supreme court decision was legally correct and if not, then they make sure it is reheard

they do not announce a verdict, they are kind of like the “analyzers”

highest court in BC

do not go to trial, meaning they don’t look at evidence. etc.

what are the 5 roles of the courts

• dispute resolution

• interpret legislation

• answer constitutional questions

• protect rights and freedom

• review actions of gov’t agencies

judicial review

BC supreme court reviews decisions made by provincial administrative tribunals —» these tribunals could be the HR tribunal for violation of rights in the workplace

it doesn’t interfere with the orginal verdict, they just ensure that it is reheard

supreme court of canada

is an appeal court, once again, they also don’t look at the evidence/listen to witnesses, etc.

Prime minister appoint 9 judges

“leave of appeal” must be applied and submitted to have your case heard —» 1/10 cases acc make it to court

supreme court of bc

this is where people seek claims like remedies (injuction) or defamation

any lawsuit over $35k is filed here

small claims court

this is where claims from $5,001 to $35k are filed; plaintiffs & defendants conduct the proceedings themselves and it is quick + easy

BC civil resolutionn tribunal

anything under $5000 will be heard here

discoveries

there should be no surprise evidence that shows up during the court proceeding unless the lawyer can prove that it was impossible to find beforehand —» all parties get together before court and share the evidence + submit in court before proceedings begin

what are damages and what are the different types

this is compensation to the victim/plaintiff —» usually monetary rewards to punishment for the defendant

general, special, punitive

general rewards

compensate the plaintiff for things that are more subjective and cannot be precisely calculated like pain/suffering/abuse

special rewards

compensation for the plaintiff for losses that are specific, precise, easily calculated pre-trial losses

aggravated damages

subcategory of non-pecuniary losses

this is to cover further harm to the plaintiff’s reputation

used in two cases

• intangible harm like humiliation

• defendant’s actions deviated from the required standard of care that the harm was far from ordinary negligence

non-pecuniary vs pecuniary losses

non: hard to quantify because its meant to address losses not based on money

pecuniary: damages that are actual monetary losses

punitive damages

meant to punish the defendant because their conduct was intolerable

injunctions + example

court order that is made to stop the a party from continuing an act or taking a proposed action —» usually in cases of passing off

specific performance

party must complete its obligations under a contract

what happens if a defendant refuses to pay judgement

plaintiff has to go back to court

• examination in aid of enforcement

  • plaintiff gets defendant to come back to court to talk abt their assets, debt, and their ability to pay

• writ of seizure and sale

  • this is a document that can be filed to get the sheriff to seize all the defendnt’s items and auction them off —» this money is used by the plaintiff to pay off the judgment

garnishment

when someone owes the defendant money, that money is pulled by the courts and used to pay the plaintiff

negotiation

no third parties involved; resolution between the two parties in question

when negotiation should & should not be used

should be used when:

• both parties want something that will benefit both of them, advance business relations

• when they don’t want to ruin the business relationship

• when there are no real conflicts, just creating rules for the future

should not be used:

• there’s a power imbalance and you are the weaker side

• you want to maintain the business relation more than they do

mediation + types

neutral individual comes to oversee the negotiations

• facilitative: for parties with a strong relationship

  • help them find the root cause of their problems

• rights based: who will look like the stronger party in court + persuasion

• transformative: help parties understand the (+) of their relationship

when mediation should & should not be used

should be used:

• you want to settle your own disputes

• both are serious about resolving your disputes

• you want to maintain bus relation

• want to settle a rights issue

should not be used when:

• focus is power/control

• need a public decision to settle

• one or the other is not ready to compromise

arbitration

more formal than negotiation + mediation

makes a binding decision at the end

similar to the court process

when arbitration should and should not be used

should

• have agreed on this form before the conflict

• again with the business interest + good bus relationship

• the power imbalance is tipped towards you

should not

• relationship is too damaged

• credibility of the parties or witnesses is beyond repair

• party may be seeking remedies that are beyond the arbitrators

fundamental fairness

right to be heard

right to hear the case against you

right to reply to the case