CIVIL LAW

NOTE: This unit will include a unit test. You are responsible for all terms and concepts covered. Please come see me for support if you need it.

Consider the following:

Sara and Shelley went to an electronics store to purchase a DVD player. As they were leaving, Shelley tripped on the corner of a carpet that had not been properly secured, she fractured her ankle. Because Shelley was unable to work as a snowboard instructor during peak season, she lost income for six weeks.

Consider the following:

Mr. and Mrs. Graham are divorced. Mr. Graham has custody of their three children. Because his job requires that he stay out of town overnight during the week, he has to hire a live-in caretaker. Mrs. Graham agreed to share this expense as part of her support payments. Mrs. Graham has since stopped making her support payments to Mr. Graham.

Consider the following:

Mandy had contracted with Big Top Roofers to replace the rood on her 30 year old house. After she paid for the job, she discovered that the quality of the shingles used was inferior to the quality specified in the contract.

The previous scenarios all fall under private or civil law.

Private (Civil) Law

Deals with disputes between persons and between individuals and companies

Individuals can also sue the state (government) for matters of a private nature

Example: an individual can sue the government in tort law if he or she suffers personal injury while visiting government-owned premises.

Parties Involved in Civil Actions

Litigants: the parties involved in a civil action

Button v. Jones – Button is suing JonesRodriguez v. British Columbia (Attorney

General) – Rodriguez is suing the government

How do these citations look different than a criminal citation?

Parties Involved in Civil Actions

Plaintiff: the party initiating a legal action

Defendant: the party being sued in a civil action

Miller v. Devenz

Who is the plaintiff? Who is the defendant?

Civil Terms

Litigation: legal action to resolve a civil dispute

Damages: compensation (usually $) for a wronged suffered

Balance of Probabilities

The weighing of evidence to decide whether it is the plaintiff’s or defendant’s version of the events that is more convincing or likely to be correct.

The onus is on the plaintiff to prove the case on a balance of probabilities (standard of proof is not as high as in a criminal trial)

Who has the burden of proof in a criminal trial?

Minors and Parties with Disabilities

Next Friend: an adult who represents a child or a person under a disability who initiates a civil law-suit

Guardian Ad Litem: the person appointed to act on behalf of a minor or person under a disability who is being sued

Minors and Parties with Disabilities

In April 1990, 3 year old Lorrie was struck by a car. Lorrie was hospitalized for three days with follow-up visits to her family doctor and paediatrician. Lorrie’s mother sued the driver on Lorrie’s behalf.

What legal role did

Lorrie’s mother play?

Courts for Civil Actions

Complex civil actions

Those involving a significant amount of money

Superior Court

Less serious matters

Small Claims Courts

Civil Action

Launching a civil action is:

Complicated and Stressful Not guaranteed to be successful

P.340 (OLD) and P.388 (NEW) show

the stages of a Civil Action

Pre-Trial Conference

Meeting of the litigants, their lawyers, and a judge where an attempt to agree on a settlement is made before going to trial. (Settle out of court)

If the parties fail to reach an agreement a different judge will be appointed to hear the case.

Settlement Out of Court

If a person refuses to accept a settlement offer that turns out to be as good as or better than the result that the refusing party obtains at trial, the refusing party is usually penalized by having to pay the costs of the other party!

Trial

Civil court procedures are similar to criminal court procedures

The plaintiff OR the defendant can request a jury trial (up to the discretion of the court to grant the request)

The Cost of a Civil Trial

Court can order plaintiff to provide security for a defendant’s legal costs

Plaintiffs are required to post security to ensure that court costs will be covered or to deter frivolous lawsuits

Security is usually ordered when the plaintiff does not live or own property in the province

The Cost of a Civil Trial

The litigant that loses a case in civil court is responsible for the damages awarded by the court.

He/She may also be required to pay part or all of the legal costs of the other litigant.

How does this help to avoid frivolous law suits?

There are also appeals in civil trials, just as there are in criminal trials.

Class Action Law Suit

A lawsuit filed by one or more individuals on behalf of a group

Enables average citizens with a common complaint to challenge large corporations or private individuals with a lot of $$$.

The Defendant: responding to a plaintiff’s complaint

Statement of Defence: sets out the defendant’s version of the facts

Counterclaim: Defendant is denying any liability for the plaintiff’s claim AND is stating an independent cause of action against the plaintiff (claiming he/she is partially or completely at fault)

Third-Party Claim: Defendant denies liability, either completely or partially, and blames another party for the plaintiff’s loss.

See p.341 (O) or p.390 (N)

Draw a picture/diagram/flow chart that shows:The citationThe plaintiffThe defendantWhat civil action has been takenHow the defendant responded

Ricardo v. Fran

R

You were speeding. I hit my head on the windshield because you were unable to stop when the dog ran out in front of you!

Plaintiff

I’m suing you!

Ricardo v. Fran

F

I was not speeding! (defence)

Defendant

I want to make a counterclaim – it is your fault you were injured because you were not wearing your seatbelt!

Damages

Pecuniary Damages: monetary compensation ($) for losses that can be calculated

Future earningsLost earningsCost of future careEtc….

Damages

Non-Pecuniary Damages: monetary compensation ($) for losses that CANNOT be calculated

Pain and Suffering

Difficult Questions

Would a student with a good prospect of having a professional athletic career suffer a greater loss because of the loss of a leg than a student who does not have that prospect?

Should someone who can tolerate a great deal of pain receive less money than someone who is highly sensitive to pain?

Difficult Questions

Courts use stare decisis to award non-pecuniary damages.

There is an upper limit in Canada for the maximum compensation that can be awarded for non-pecuniary damages.

What maximum would you set?

With inflation, the max. in

Canada is now ~$311 000

Other Damages

Special Damages: compensation for out of pocket expenses

Punitive Damages: damages imposed to punish the defendant

Nominal Damages: minimal compensation to acknowledge a moral victory

Read about Alternative Dispute Resolution on p.358 (O) or 406 (N) – complete the following

Definition Who makes decision

Negotiation

Mediation

Arbitration

Advantages Disadvantages

What are the pros and cons of alternative dispute resolution?