civil law
A. Trial Procedures
I. Balance of Probabilities
1. Litigation and Litigants: * Litigation: The process of resolving a dispute through the civil court system (a lawsuit).
Plaintiff: The person or party initiating the lawsuit who claims to have suffered harm or loss.
Defendant: The person or party being sued who must defend their actions.
2. Balance of Probabilities: * The standard of proof required in a civil trial (unlike criminal law's "beyond a reasonable doubt").
To win, the plaintiff must prove that their version of events is more likely true than not (e.g., a 51% certainty or greater).
II. Filing and Serving a Claim
1. Cause of Action: The legal basis or reason for a lawsuit (e.g., breach of contract, negligence, assault). There must be a valid legal ground to sue.
2. Defence or Reply: * The formal response written statement filed by the defendant to contest the plaintiff’s claims, outlining their version of the facts.
3. Payment into Court: An official offer made by the defendant to settle the case early by paying an amount of money into a court account. If the plaintiff refuses and wins less at trial, they may face financial penalties regarding court costs.
4. Counterclaim: A claim made by the defendant back against the plaintiff, asserting that the plaintiff is actually the one responsible for damages or losses in the situation.
5. Third Party Claim: A claim brought by the defendant against an outside party, arguing that if the defendant is found liable, this third party should pay for all or some of the damages.
6. Default Judgement: A judgment automatically awarded in favor of the plaintiff if the defendant fails to respond or file a Defence within the legally required time limit.
7. Out-of-Court Settlement: An agreement reached privately between the plaintiff and defendant to resolve the dispute before a final court judgment is made.
8. Pre-Trial Settlement: A formal meeting between the lawyers, litigants, and sometimes a judge to clarify issues, see what can be agreed upon, and attempt to resolve the case without proceeding to a full trial.
9. Examination for Discovery: A pre-trial process where both sides question each other under oath to inspect evidence, narrow down facts, and ensure there are no surprises at the trial.
III. Civil Remedies
1. General Damages: Money awarded for losses that cannot be precisely calculated with receipts, such as pain and suffering, loss of enjoyment of life, or future loss of earnings.
2. Special Damages: Compensation for specific, out-of-pocket expenses that can be easily calculated with receipts (e.g., medical bills, repair costs, lost wages up to the trial date).
3. Punitive Damages: Extra money awarded to punish the defendant for malicious, oppressive, or completely outrageous behavior, acting as a deterrent to others.
4. Aggravated Damages: Money awarded when the defendant’s malicious behavior caused the plaintiff exceptional emotional distress, humiliation, or psychological harm.
5. Nominal Damages: A tiny, symbolic amount of money (e.g., $1.00) awarded when the plaintiff wins the case legally, but suffered no actual financial or physical harm. It validates that the plaintiff's rights were violated.
6. Injunctions: A court order requiring a person to do something, or more commonly, to stop doing something (e.g., an order to stop cutting down trees on a neighbor's property).
B. Enforcing a Judgement
I. Garnishment: A legal order where a portion of the debtor's money (like wages or bank accounts) is intercepted at the source and sent directly to the creditor to pay off the judgment.
II. Seizing Assets: A court order allowing a sheriff or bailiff to take the debtor's personal property (like a car or electronics) and sell it at an auction to pay back the plaintiff.
III. Examination of the Debtor: A hearing where the debtor must appear under oath to explain their financial situation, assets, income, and ability to pay back the debt.
C. Alternative Dispute Resolutions (ADR)
I. Negotiation: An informal process where the two disputing parties (and/or their lawyers) communicate directly to try and find a mutually agreeable solution.
II. Mediation: A structured process where a neutral third party (the mediator) helps the disputing parties communicate and reach a voluntary, collaborative agreement. The mediator cannot make a binding decision.
III. Arbitration: A formal process where a neutral third party (the arbitrator) hears both sides of the story, reviews evidence, and makes a final, legally binding decision that both parties must follow.
A. The Elements of Negligence
Negligence is an unintentional tort involving a failure to take reasonable care, resulting in injury or loss to another person.
I. Duty of Care: The legal obligation to avoid actions or omissions that could foreseeably harm others. It is based on the Neighbour Principle (you must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbor/anyone closely affected by your actions).
II. Breach of Duty of Care: Failing to meet the required standard of care.
1. The reasonable person: The standard used to judge behavior. The court asks: "What would a careful, ordinary person do in this exact same situation?"
2. Duty of care and minors: Children are not held to the adult "reasonable person" standard. They are judged against a child of similar age, intelligence, and life experience—unless they are participating in an adult activity (like driving a car or operating a motorized vehicle), in which case they are judged as adults.
3. Foreseeability: The ability of a reasonable person to anticipate or predict that their actions could lead to harm or injury. If the harm is completely unpredictable, there is no negligence.
III. Causation: The plaintiff must prove that the defendant's specific actions directly caused the injury or loss. This uses the "But-for" test ("But for the actions of the defendant, would the injury have occurred?").
IV. Actual harm or loss and the burden of proof: The plaintiff must show they suffered real physical injury, emotional distress, or financial damage. The burden of proof rests on the plaintiff to prove all elements of negligence on a balance of probabilities.
B. Defences for Negligence
I. Contributory negligence: A defense showing that the plaintiff’s own careless actions contributed to their injuries. The court will split the blame and reduce the damages proportionally (e.g., if the plaintiff is 20% responsible for not wearing a seatbelt, their payout is reduced by 20%).
II. Voluntary assumption of risk: The defense (volenti non fit injuria) that the plaintiff knew the physical and legal risks involved in an activity (like skydiving) and chose to participate anyway, clearing the defendant of liability.
III. Inevitable accident: A defense asserting that the accident happened due to a totally unpredictable event (like a sudden mechanical failure or a medical emergency like a heart attack while driving) that could not have been prevented by any amount of reasonable care.
C. Special Types of Negligence
I. Occupiers’ liability and occupiers: An occupier is anyone who controls a property (owner, renter, or manager) and owes a duty of care to make sure the premises are safe for people entering.
1. Invitees: People invited onto a property for a business purpose (e.g., a customer in a grocery store). They are owed the highest standard of care to protect them against known or foreseeable hazards.
2. Licencees: People entering a property for social or non-business purposes with permission (e.g., a friend over for dinner). The occupier must warn them of any hidden dangers they know about.
3. Trespassers and allurement: Trespassers enter without permission. Generally, occupiers cannot intentionally set traps or harm them. However, under allurement, if there is a dangerous object that naturally attracts children (like an unfenced swimming pool or an old tractor), the occupier owes a duty of care to protect children, even if they are trespassing.
II. Occupiers liability acts: Modern provincial laws that largely eliminate the strict distinctions between invitees and licensees, creating a general duty to keep all visitors reasonably safe.
III. Motor Vehicle Negligence and liability for passengers: Drivers owe a strict duty of care to passengers and pedestrians. In many provinces, the burden of proof shifts to the driver to prove they were not negligent if they hit a pedestrian.
IV. Seat belts and vicarious liability:
Seat belts: Failing to wear a seatbelt is a classic example of contributory negligence.
Vicarious liability: When an owner of a vehicle is held legally responsible for negligence committed by someone else who was driving their car with permission.
D. Trespass
An intentional tort where a person directly and intentionally interferes with another person, their property, or their land.
I. Assault and Battery: * Assault: An intentional act that creates a reasonable fear of immediate offensive or harmful physical contact (e.g., raising a fist).
Battery: The actual, intentional, non-consensual physical contact or touching of another person (e.g., throwing a punch).
II. False imprisonment: Confining, detaining, or restraining a person against their will within a bounded area without a legal justification or authority.
III. Trespass to land: Entering or remaining on another person’s private property without their permission or legal right.
IV. Nuisance: * Private Nuisance: Unreasonable, continuous interference with a neighbor's ability to use and enjoy their own land (e.g., excessive loud music all night, foul smells, or leaking sewage).
Public Nuisance: Interference that affects the health, safety, or comfort of the general public (e.g., blocking a public highway).
E. Defences for Trespass
I. Consent: The defendant can argue that the plaintiff agreed to the physical contact or entry (e.g., agreeing to be tackled in a football game).
II. Self defence or of others: The use of reasonable and proportionate force to protect oneself or someone else from immediate physical harm.
III. Defence of property: Using reasonable force to prevent someone from unlawfully entering your property or to evict a trespasser who refuses to leave.
IV. Legal authority: Law enforcement or individuals acting with legal rights (like police officers executing a search warrant or making a lawful arrest) are protected against claims of trespass or false imprisonment.
V. Necessity: A defense used when trespassing or destroying property was absolutely required to prevent a much greater harm or immediate disaster (e.g., breaking down a door to rescue someone from a house fire).
F. Defamation
An intentional tort involving unjustified, false statements that damage a person's reputation.
I. Slander: Defamation that is spoken, gestured, or expressed in a temporary, non-permanent form.
II. Libel: Defamation that is preserved in a permanent, recorded form, such as written text, print, photos, or broadcasts/internet videos.
III. Defences for defamation:
1. Truth (Justification): If the statements made are completely true, it is an absolute defense, even if it ruined the person's reputation.
2. Absolute privilege: Complete protection from defamation lawsuits given to statements made in specific locations where free speech is essential, such as floor debates in Parliament or testimonies inside a courtroom.
3. Qualified privilege: Protection granted to people who make statements in good faith as part of a moral, social, or legal duty (e.g., a teacher writing an honest reference letter or an employer review), provided the statements were made without malice.
4. Fair comment: Protection for honest, subjective expressions of opinion on matters of public interest (e.g., movie reviews, political commentary, or restaurant critiques), as long as the opinion is based on true facts and is not malicious.