Chapter 3 - Lecture notes 3 PDF

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Stephen Nathanson...

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Civil Wrongs Tort: 

Assault, Defamation, Negligence

Breach of Contract Statutory Wrong: 

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e.g. Residential Tenancy Act (many rights and obligations) o s. 9 If a landlord accepts a security deposit or a pet damage deposit that is greater than the amount permitted under subsection (1), the tenant may deduct the overpayment from rent or otherwise recover the overpayment e.g. Trade-marks Acts o s.53.2 Where a court is satisfied... that any act has been done contrary to this Act, the court may make any order...including an order ... for...injunction and the recovery of damages or profits

Equitable Wrong: 

Bank mistakenly credits your account with money

How do you right Civil Wrongs? Alternative Dispute Resolution 

Process for resolving disputes outside of the courts o Negotiation  Parties discuss the problem in order to find a solution  Process requires cooperation and compromise  Communication skills  May be conducted through representatives  Process may enhance relationship  Effective negotiators use argument by similarity  Agreement may not be legally binding o Mediation  Neutral outside helps parties settle the dispute  Communication and agreement facilitated by mediator; finds common ground and encourages concessions  Mediator does not make decisions  Mediator sometimes required before court will hear case  Court may affirm mediated agreement o Arbitration  Parties agree on an independent third party to make a decision that will be binding on the parties  Often required in contract

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Arbitrators are often specialists in the matter under dispute Decisions cannot be appealed (b/c of Provincial arbitration statutes) although procedure may be reviewed by the courts Process is private, faster, less costly than litigation, but more formal and more adversarial than mediation

The Court System  

Federal Trial Court  Federal Court of Appeal  Supreme Court of Canada Provincial Court  Supreme Court of BC  Court of Appeal of BC  Supreme Court of Canada

Courts Criminal Function (PUBLIC LAW)    

In a criminal case, the state prosecutes the accused who is convicted only when state proves the case beyond a reasonable doubt Victims are merely witnesses at the trial The court assesses and enforces penalties Victims are not usually compensated for their injuries

Courts Civil Function (PRIVATE LAW)    

Private individuals ask the court for remedies for civil wrongs or to reject claims for civil wrongs Court’s decision is based on balance of probabilities Court assesses liability and can enforce judgement Compensation and remedies imposed on defendant or plaintiff’s claim is rejected or reduced

How to Start a Lawsuit Lawsuit Procedure (Pre-Trial)    

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Limitation periods and deadlines Jurisdiction (Where D resides or actions arose; small claims $35,000) Negotiation/Demand letter Pleadings o Notice of Civil Claim (plaintiff) o Response to Civil Claim o Counterclaim Chambers application Discovery o Of documents o Examination of parties o Payment into court

Lawsuit Procedure (Trial)

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Plaintiff presents case o Direct examination of witnesses o Cross examination of Defendant Defendant presents case o Direct examination of witnesses o Cross examination of Plaintiff Rules of Evidence used

Lawsuit Procedure (Judgement) 

Judge makes findings of fact/application of law (his/her decision with reasons) and imposes remedies such as: o Damages (monetary compensation)  General and special  Punitive damages may also be awarded o Accounting, injunction, specific performance o Cost

Lawsuit Procedure (Post-Trial)    

Examination in aid of execution Seizure of property Garnishment Injunction

Administrative Law (Public Law)   

The rights of people facing an administrative tribunal are covered by administrative law An administrative tribunal is legislated into existence along with an entire regulatory system or body Example: The E.I. system and the board of Referees

Regulatory Role of Government  

Executive brand of government is responsible for these regulatory bodies Government officials must rely on legislation to authorize their acts (Rule of Law). They cannot infringe a person’s rights by virtue of their position

Resolving Complaints against Regulatory Agencies  

Usually heard by administrative tribunals Administrative tribunals must function according to the rules of natural justice

Rules of Natural Justice

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Entitled to Fair Hearing o Complaint must have reasonable notice of the hearing o Opportunity to see and respond to all evidence o Opportunity to be heard Heard by decision maker – The people making the decision must be the same ones hearing the evidence Impartiality – No bias on part of decision makers (Rules of evidence and procedure used in court need not be adhered to; sometimes depends on rules of the tribunal or the particular circumstances If complainant can show she did not get a fair hearing, she can apply for “Judicial Review”...