Chapter 5 Questions and Solutions PDF

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Chapter 5 COURT PROCEDINGS IN A CIVIL ACTION

QUESTION 1 Harry refuses to respond to being sued because he is upset that his friend Miguel is suing him. Explain the possible consequences of Harry’s refusal. ANSWER A person who receives a Motion to Institute Proceedings in a civil action must recognize that he or she has been sued - this is the first step in the official legal proceedings. The information in the document of the copy served on the defendant, clearly states the consequences of not responding. By refusing to respond, Harry may find that a judgment has been rendered in the case, holding him responsible for payment of the amount sued for. This would be a judgment by default, because Harry was "in default" to respond. He would then lose any right he might have had to defend himself against the claim. This judgment could be executed against him, and his property and/or salary could be seized if he did not pay the amount ordered by the judgment. If he intended to defend himself, his proper response would have been to file an Appearance within ten days of the service of a Motion to Institute Proceedings and to attend a meeting on Case Management.

QUESTION 2 John has been served with a subpoena ordering him to appear in court as a witness in an accident case. He decides not to go to court. Explain what may happen as a result. ANSWER If John simply does nothing, when the trial is held, his name will be called to appear as a witness. If he is not there, the lawyer who sent the subpoena may ask the judge to issue a bench warrant for John's arrest. He will subsequently be arrested by the police and brought to court to answer to why he did not appear.

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QUESTION 3 Siobhan has received a letter of default. George tells her that this is a court action and it means that she has been sued. Siobhan asks you if this is true. How would you reply? ANSWER A letter of default is not an official court proceeding, and it does not mean that a person has been sued. It is a preliminary measure, designed to enable a person to avoid the expense and trouble of a court case. It advises the alleged debtor that someone has a claim and reminds the debtor of the circumstances of the claim. It then specifies that if the claim is paid within a stated period, the matter will be considered settled and will go no further. If, however, it is not settled, the letter warns that legal proceedings will then be commenced without further notice or delay.

QUESTION 4 Nathan has a judgment rendered against him for the sum of $4,500 with costs. a. What are the items that will be included in the costs he has to pay? b. If Nathan does not pay the amount of the judgment and costs and it is executed, explain what this may mean. Include in your answer all possible options you can think of. c. Nathan’s wife is worried that the family will not have any food or clothing left as a result of the judgment. What would you advise her? ANSWER a. Nathan will be required to pay the bill sent to him by his lawyer, which will include the expenses and fees incurred in defending him against the claim. He will also be required to pay the expenses incurred by the plaintiff, as well as a fee to the plaintiff's lawyer based on the tariff then in force. b. The term "execution" refers to the method of enforcing payment of the amount of money that a person has been ordered to pay by judgment of a court. This method involves the seizure and sale of the debtor's property or the seizure of salary. If Nathan does not pay the judgment and costs, the judgment may be enforced against him through these means of enforcement. c. Nathan's wife should not be concerned that the family will be left destitute. The exemptions from seizure stated in articles 552 and 553 of theCode of Civil Procedure provide for basic household furniture, clothing, food and other necessities to be kept out of the seizure. With respect to salary, only 30 percent of the excess over the unseizable portion may be seized.

QUESTION 5 Explain what is meant by a “seizure by garnishment.”

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ANSWER A seizure by garnishment refers to the seizure of a person's property (including money) that is in the hands of another (third) person. Thus if someone has lent a valuable painting to a friend, it may be seized while in the friend's possession. The same applies to the salary earned by a debtor; the seizable portion may be seized in the hands of the employer, by way of a seizure by garnishment.

QUESTION 6 A bailiff served a Motion to Institute Proceedings on Eastern Canada Kitchenware Inc. These documents stated that Northern Heaters Corp. was suing for $12,000 for heating elements purchased by Eastern Canada and not paid for, although Eastern Canada had complained vigorously that the heaters were of poor quality and did not meet the specifications stated on the order. The lawyers for Eastern Canada filed an appearance. The next day the president of Eastern Canada called the lawyers and pointed out that because of the delays in obtaining the proper heating elements, a large department store had cancelled an order for kettles. This meant a loss of $40,000 profit for Eastern Canada Kitchenware Inc. Is there any procedure that would enable Eastern Canada Kitchenware Inc. to recover the $40,000 lost profit? ANSWER When the lawyers for Eastern Canada file the plea, they may add a cross-demand to it. In this "case within a case" they may claim the $4,000 from the plaintiff. The cross-demand will set out the reasons for the claim in the same way as the original declaration set out the reasons for the plaintiff's claim. When the plaintiff company answers Eastern Canada's plea, it will also include a Plea to the Cross Demand. The two matters will be handled as a single case, and the judgment will dispose of both matters together.

QUESTION 7 Using the case described in Question 6, prepare a list in the correct sequence of all procedural steps that will take place from the outset of this case to a final judgment. ANSWER The steps in this case would begin with the creditor (Northern Heaters) sending a letter of default to the debtor (Eastern Canada) claiming the sum of $12,000 for the merchandise sold. If the matter is not settled within the time frame stated in the letter of default, the legal action would then begin, with Northern Heaters (plaintiff) suing Eastern Canada

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(defendant) for the sum of $12,000. Assuming Northern Heaters is a corporation with more than five employees, this action would be taken in the Court of Quebec. The steps in this civil action would include: A Motion to Institute Proceedings, served by a bailiff on the defendant. Appearance by the defendant within ten days of the service. Following the Appearance, the two sides have to undertake to negotiate (Case Management) when each side will submit within the required 180 days required procedures and documents, such as the defendant’s plea, the plaintiff’s response and filing of exhibits. Failure to come to an agreement triggers a court hearing to determine the time line. If the defendant wishes to hold the Plaintiff responsible for the loss of $4,000 profit due to the delay in delivery of the heaters, a Cross-Demand will be added to the Plea. Since the action relates to the sale of merchandise, the defendant must attach an Affidavit to the Plea, stating that the Plea is a serious defence and is not intended merely to delay the action. Within the determined timeframe, the Plaintiff will file an Answer to Plea and, if a Cross-Demand has been made, there will also be a Plea to the Cross-Demand. Another period is allowed for the defendant to file a response. Either party will then file an Inscription for Proof and Hearing, asking the court for a trial date. When the parties are advised of the date, subpoenas, if required, will be sent to the witnesses. After the trial, a judgment will be rendered.

QUESTION 8 Prepare the Motion to Institute Proceedings that would be used in the case described in Question 6. ANSWER This is a suggested motion that might be used: MOTION TO INSTUTUTE PROCEEDINGS THE PLAINTIFF DECLARES: 1) The defendant, ordered six hundred heaters No. 43-b-6 on April 14, 2011 from the plaintiff, as shown by the defendant's purchase order No. 65743 produced herein as Plaintiff's exhibit P-1; 2) The defendant agreed to pay the price of eighteen dollars per heater;

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3) Plaintiff delivered the six hundred heaters to the premises of the defendant on May 26, 2011, as evidenced by the delivery slip signed by one of defendant's authorized employees, and produced herewith as Plaintiff's Exhibit P-2; 4) Plaintiff sent defendant an invoice (Plaintiff's Exhibit P-3) for the above shipment, claiming the amount of $10,800 plus GST in the amount of $756.00 and QST in the amount of $751.14, forming in all a total sum of $12,307.14, which plaintiff is entitled to be paid; 5) Defendant has refused or neglected to pay the sum claimed, although called upon to do so by way of the letter from plaintiff's attorney dated July 19, 2011, a copy of which letter is produced herewith as Plaintiff's Exhibit P-4; 6) Plaintiff's action is well founded in fact and in law. WHEREFORE, PLAINTIFF RESPECTFULLY DEMANDS THAT BY JUDGMENT TO intervene, this Honourable Court condemns the defendant to pay to the plaintiff the sum of $12,307.14 with interest from the date of service and costs. Montreal, August 22, 2011 Jeremy Gagne Attorney for Plaintiff

QUESTION 9 Explain the difference between substantive law and adjectival law. ANSWER The substantive law tells us what our legal rights are. It informs us that we have the right to enforce a contract, or the right to compel our neighbour to share the cost of a fence between our properties. The adjectival law explains the steps of legal procedure that we must follow in order to exercise the right we find in the substantive law. This is the part of the law that tells us to prepare and serve a Writ of Summons, to file an Appearance, or a Plea, or how to serve legal documents, or the proceedings for an injunction.

QUESTION 10 Explain the method that is used to ensure the prompt and accurate delivery of court documents. Discuss the various possibilities that may arise and how they can be dealt with. ANSWER Delivery of court documents is carried out by an officer of the court called a bailiff. This procedure is known as "Service." When a bailiff serves court

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documents, it is usual to hand the copy of the document directly to the person to whom it is addressed. If the person is not at home or at work, the bailiff may leave the document with a grown and reasonable person, to be delivered by such person to the one to whom it is addressed. If there is no answer at the address given, the bailiff may ask the court to authorize a different mode of service, such as leaving it in the mailbox, or placing notices in the newspapers. If the person cannot be located, the bailiff returns the documents to the lawyer who issued it with the notation "non est inventus," meaning "he cannot be found."...