chapter 11: civil law

• civil law

  • civil law, also known as private law or tort law, regulates disputes between individuals/company
  • the main purpose of civil law is to compensate for harm, usually in terms of damages (money) awarded to plaintiff for harm, loss, or injury
• plaintiff: the person or party that initiates the lawsuit
• defendant: the party that must respond to the lawsuit
• civil actions

  1. tort law: injuries or harm created by one person to another's body, reputation, or property; "tort" is derived from a Latin word meaning "twisted" or "wrong"
  2. family law: personal disputes that involve marriage, divorce, child custody, adoption, and support claims
  3. contract law: failing to fulfill the terms of agreement, such as non-payment for a service
  4. labour law: disputes in the workplace such as wrongful dismissal, unpaid overtime
  5. property law: disputes about ownership or maintenance of property
• crimes & tort

  • many crimes can also become tort; if a person is convicted of a crime, the victim does not usually gain from that personally
  • in many cases, a person can be sued in addition to being charged
  • e.g. crime of break and enter = the tort of trespass to land
• civil courts

  • civil actions can become very complex and almost always involve money
  • similar to criminal law, there are different types of civil courts used to have various civil cases
  • cases that involve large sums of money are tried in a Provincial Supreme Court (Superior Court) and may be appealed to a Provincial Appeal Court; some cases that require important precedents may go to the Supreme Court of Canada
  • generally, cases that are relatively minor in nature are heard in small claims court
• small claims court

  • often referred to as "the people's court", small claims court resolve civil disputes of $10,000 or less, although some provinces have limits as high as $35,000 (Ontario's limit $35,000)
  • the trial itself is more informal, with the plaintiff and defendant representing themselves
  • both parties present their sides of the story to a judge and do not need to know much about the law as the dispute is usually fairly simple
  • plaintiffs file the paperworks themselves and pay for a court fee; the defendant receives a copy of the lawsuit and then a court date is set
• small claims actions

  • breach of contract
  • minor accidents
  • damage to property
  • recovery to property
  • unpaid bills, loans, rent, or wages
  • the dollar limit for small claims court ranges from $5000 to $35,000, depending on the province
• balance of probabilities

  • in a criminal case, verdicts are based on the concept of beyond a reasonable doubt
  • in a civil case, verdicts are based on the balance of probabilities, which means "more probable than not"
  • the plaintiff and defendant, also known as litigants, must convince the judge that their version of the dispute is the correct one
  • the judge must then decide which version of story is more believable
  • if the plaintiff wins the case, the defendant is liable or responsible; if the defendant wins, they are not liable
• filing & serving a claim

  • a plaintiff must begin a lawsuit by filing a statement of claim, which includes:
  • the plaintiff's name and address
  • the defendant's name and address
  • the amount of money or compensation being asked for
  • a brief, clear summary of the reason for the claim
  • a court fee must be paid by the plaintiff and a copy of the lawsuit is served to the defendant
  • a court action must be filed within a certain time of the incident, this is the "limitation period"
  • the time limit ranges from 2-5 years
  • a defendant has between 10 and 30 days to respond, depending on the province
• defendant's options

  1. accept the total responsibility and settle the claim by providing a payment in court or settling out of court
  2. ignore the claim - if so, a default judgement will be awarded to the plaintiff
  3. file a counterclaim in which the defendant counters the lawsuit filed against them by filing their own lawsuit against the plaintiff
  4. fight the plaintiff's claim by filing a statement of defence and going to trial
  5. make a third party claim, in which the defendant claims a third party is completely or partially responsible for the dispute
• higher courts

  • in higher court with cases that are more complex and involve larger amounts of money, other individuals and mechanisms are brought in to assist the litigants
  • in a higher court, it is recommended that the plaintiff and defendant retain counsel (lawyers)
  • an examination for discovery is a pre-trial process held to retain the evidence that each side intends to present in court
  • similar to disclosure in criminal law, both sides agree to show each other all relevant types of evidence (e.g. documents, photos, files)
• civil trials

  • civil actions (outside of small claims court) can be decided by a judge or jury
  • in civil court, a jury is comprised of six people; juries are not often used in civil trials
  • the plaintiff presents their side of the story first and is followed by the defendant
  • each party then summarizes or provides a closing statement to the jury
  • a decision can be made to grant all, part, or none of the plaintiff's claim
• class action suits

  • a single legal action that is brought forward on behalf of several people who shares a common grievance
  • this suits put more pressure on defendant's side and if successful, often result in higher settlements
• remedies

  1. general damages
  2. special damages
  3. punitive damages
  4. aggravated damages
  5. nominal damages
• general damages

  • this type of damages cannot be easily or precisely calculated and can be divided into two:
  • pecuniary damages: loss of income, future earnings, and cost of specialized future care
  • non-pecuniary damages: money awarded for pain and suffering and loss of enjoyment of life
  • the term pecuniary means "related to money"
• special damages

  • this type of damages is awarded for specific out-of-pocket expenses incurred before the trial
  • these include hospital costs and therapy
• punitive damages

  • this type of damages is meant to punish the defendant for what is considered to be malicious behaviour
• aggravated damages

  • this type of damages is awarded for mental distress and humiliation, or pain and suffering
• nominal damages

  • this type of damages is awarded as a moral victory for the plaintiff
  • in these cases, the plaintiff has suffered little or no harm but the judge agrees with their reason for bring the lawsuit forward
• injunctions

  • it is a court order that directs a person to avoid doing something for a specific period of time and can be issued as a type of civil remedy
  • if a person served with an injunction fails to obey it, they may be found in contempt of court and receive a fine or jail sentence
  • e.g. staying away from a certain person or limiting certain types of behaviours
• contingency fees

  • it is an arrangement between a lawyer and a client regarding payment
  • lawyers agrees to be paid a certain agreed upon percentage at the end of the trial or settlement but do not receive money otherwise
  • common in class action lawsuits or if a person cannot afford a lawyer
  • the risks for lawyers is if they do not gain the verdict, they will not receive the money for the verdict - but if they win, they usually make more money than their standard fees
• enforcing judgements

  • when a plaintiff wins a case, it is the plaintiff's responsibility to collect any damages awarded from the defendant who must cooperate
  • in order for the plaintiff to successfully claim their damages, a defendant's ability to pay is analyzed; this is known as the examination of the debtor
  • a defendant must have:
  • money
  • assets that can be sold for money
  • money owed to them that can be redirected to the plaintiff
• enforcing judgements

  • a defendant may also have their garnished - a percentage of the defendant's income is directed at paying the damages
  • if a defendant's wages are garnished, the court must leave them with enough money to live on and provide for any dependents they may have
• alternative dispute resolution

  • also known as ADR, this is designed to solve civil disputes without having a formal trial
  • advantages:
  • less expensive and faster than going to court
  • usually less stress on the parties involved
  • may result in a better or fairer resolution
  • often results in an acceptable compromise that benefits both parties while avoiding animosity of going to court
  • three basic ADR models:
  • negotiation
  • mediation
  • arbitration
• negotiation: the parties involved try to resolve their disputes directly with or without lawyers
• mediation: a neutral third party is brought in to help resolve conflict between two parties; a mediator has no actual decision making power
• arbitration: a neutral third party is brought in to decide the case; an arbitrator's decisions are binding and final