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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
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