Michael Sporer Legal Studies 1120 (Legal Processes and Remedies) Notes PDF

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Lecture Notes for Michael Sporer's Legal Processes and Remedies (LGST 1120)...

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Michael Sporer: Legal Studies 1120 (Legal Processes and Remedies) May 11th How do Lawyers approach cases? with a Case Theory Case Theory (a good case theory takes in both these elements) ● Factual Theory: what happened here? what’s the story? factual theory of the case and why it happened? emotionally connected story to judge and jury with story ○ when, why and emotional connection ●

Legal Theory: translating the factual story into legal (language) story ○ has two parts to it ■ substantive law (concussion case was a case of negligence, translated story into laws) ■ remedial law (damages, the remedy to issue)

May 18th Bruce Mcoll: Agent of Mike Robitattie ● tries to work out settlement with Canucks before turning to a lawsuit ● Mcoll contacts an expert barrister, John Laxton who joins the case ● Laxton issues the writ in August, 1978 (since Summer 2010, no longer file writ, now NOCC [notice of civil complaint]) ● Laxton filed for exemplary damages ● Laxton emphasis a tort of negligence on the part of the Canucks (in an SOC) ○ failure to respond plaintiff complaints ○ failure to bring proper medical attention ○ failure to keep them out off hockey games Barrister: court room lawyer, they fight cases in the courtroom (argue cases) Solicitor: office lawyers, working from their offices (drafting contracts, wills) Statement of Claim: filed with a writ, longer document that sets out the details of the claim ● NOCC completes the document, need to be filed together Punitive Damages: unique type of damages, designed to punish for arrogant conduct A lawyer always makes sure they’re suing the LEGAL ENTITY, and not a empty trade name ● e.g. Concussed players sued Vancouver Hockey Club LTD, not Vancouver Canucks Examination for Discovery: pre-trial process in a civil action that allows lawyers to question the other side's’ parties (not just witnesses), under oath before a court reporter

Canucks Lawyer (Kirkham) ● rejects Laxton’s 350K settlement offer, said “assured my clients I will win the case” ● Justice Esson was the judge for this trial Laxton starts with direct examination of his witness ● he calls NHL players, wives, management, doctors (expert) to testify in this lawsuit ● Kirkham then does the cross examination of the same witness Witnesses ● Lay Witness: the court just wants the facts ● Expert Witness: giving a professional opinion May 25th John Laxton wanted damages for his client ● punitive damages Difference between Substantive law, Remedial Law, Procedural law Substantive Law ● set of laws that govern how a society behaves ● protects moral claim and rights that people have ○ closely tied to rights ○ e.g. “you are trespassing” substantive law of trespassing protects their right/claim Procedural Law ● set of laws of how court hears and prosecutes cases in a civil or criminal matter ● the procedural law gives you the process you must follow to enforce your substantive law claim Remedial Law ● the question of “what do you want the Judge/Court to do at the end of the case?” ○ damages ○ injunction ● different remedies for different problems, nothing will suit every case

Relationship between Substantive Law and Remedies ● some remedies are closely tied to certain types of substantive law ●

other remedies are not specific, general to a variety of areas ○ damages come across a variety of issues

Criminal Law comes from two statutes: ● Criminal Code ● Controlled Drugs and Substance Act A criminal act is anything that violates these two, it is criminal behaviour An intentional act can be an intentional act and crime

Administrative Law ● Section 91 and 92 gives law making power to parliament ○ federal legislation (91) ○ provincial legislation (92) Enabling Statutes (Primary Legislation) ● creating a new authority, tribunal or government administrative body ● gives the administrative party certain powers ○ e.g. WorkSafe BC (tribunal board that assesses workers hurt on the job) ● Municipality Government is another example ○ enabling statutes created by provincial government to create local government ■ creating city bylaws (secondary legislation, an inferior legislative body) Judicial Review ● can take final argument/settlement to BC Supreme Court ● judicial review of administrative action (government issues) ● court of law retains the right to review administrative actions ○ government tried to block this right

Civil Litigation ● torts, contracts, quasi-contracts, unjust enrichment Contract ● always arises from an agreement ● generally the law that governs the exchange of property or the exchange of rights (trade) ● often in writing, if the exchange of value (can be oral agreement) ○ can even arise from conduct

Tort ● ●

purpose of tort law is to protect a person's right from intrusion or invasion types of torts ○ Negligence: most common tort is BC courts, a party is negligent when they act less than a reasonable person in those circumstances (what is reasonable?) ■ medical malpractice: what would the reasonable doctor have done? ■ most common is driving: what would the reasonable driver do? ■ had acted below the standard of a reasonable person in situation and the negligible act caused harm to another person ○ Nuisance: unreasonable interference with use and enjoyment of land that causes injury or harm ■ e.g. family hangs out laundry on clothesline, and smoke from a nearby factory and damages the laundry, this is a nuisance (& trespass) ○

Assault and Battery: battery is intentional contract without consent while latter assault is intentional conduct causing fear of immediate harm

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Unjust Enrichment: also known as quasi-contract, three elements to it ■ one person must receive a benefit ■ another person suffers a corresponding/related deprivation ■ there’s no juristic reason why this should be so e.g, one friend asks for a loan from another but there’s no discussion of a payback, you then ask for the money back but the person claims there’s no contract and it was a gift but courts do not accept this answer (must payback)

Remedies Damages: most common remedy, can involve a breach of contract, negligence claim or assault ● compensatory damages (what is the harm to the innocent party?) ○ the goal of the damages is to compensate the person who has been wronged ○ can be broken down into three broad categories ■ general damages (common) naturally flow and directly flow from the harm caused by the wrongful act [e.g. pain and suffering] ■ special damages (common) general rule is that these can be mathematically calculated (often they don’t flow as directly from the wrongful act from the wrongdoer) [physical therapist costs, etc] ■ aggravated damages (rare) conduct amounts to tortious or humiliating ● non-compensatory damages (what is the conduct of the wrongdoer?) ○ the goal of these damages are to punish the wrongdoer ○ punitive damages (also known as exemplary damages) they’re often not large and a  warded rarely, when they’re rewarded is that defendant has engaged in conduct that is of such a nature, that it is deserving of punishment because of it’s harsh, vindictive and reprehensible nature or otherwise extreme  in nature such as by any reasonable standard it is deserving of full punishment

in 2002, Whiten v Pilot Insurance in front of the Supreme Court of Canada ● this case is the leading case in Canada on punitive damages and gave guidance to courts in Canada when dealing with punitive damages, things that should be taken into consideration ○ blameworthiness of the defendant's conduct (look at the intent, the motive (was it planned?) ○ what is the degree of vulnerability?  (family or friend, or possibly disabled)  ○ what was the harm or potential harm to plaintiff ?  ○ what is the need for deterrence ? ○ have to take into account other penalties that have been inflicted on defendant ○ what was the advantage wrongfully gained, by the defendant from the conduct? Whiten v Pilot (Criteria for Punitive/Exemplary Damages) ● Family suffers fire but insurance company doesn’t want to pay, despite statements from everyone involved (police, fire dept, fire chief) ● Pilot hires a private investigator (Francis) who states the fire wasn’t suspicious, after Pilot denies this claim again, they ask Francis to do another report, he reports the same. ● Francis is relieved of his duties and new independent investigator is hired, James Couch ● Forensic Engineer, Fire Chief and Firefighter is hired by Pilot, Pilot Insurance feeds them misleading information about the speed of the fire. ● Whitten Family hires a lawyer to fight these claims, they give the option to take a polygraph test to prove innocent but Pilot insurance refuses ● Pilot Insurance continues to claim the Whitten family started the fire ● Rumours have started in the Whittens community, claiming the family may have done it ● The case goes to trial, at the end of the case the Judge (Justice Matlow) instructs the Jury on which damages to be awarded ● There was a specific punitive damage claim against the Pilot Insurance company ● Judge Matlow stated “And finally, if you determine that Pilot’s defence of arson failed and that Pilot breached the provision of the policy of insurance by denying the plaintiff’s claim, you must then go on to determine whether the plaintiff is entitled, as well, to recover punitive damages. Punitive damages can be awarded in certain circumstances to serve as a punishment. In this case, depending on your finding of fact, punitive damages can be awarded to deter Pilot and other insurers from engaging in improper conduct” ○ Punitive damages, unlike the other types of damages claimed in this case, are not intended to compensate the plaintiff for her loss. If they are awarded, they will constitute a windfall for the plaintiff and a penalty for Pilot. ○ Before you may properly make an award of punitive damages, Pilot’s defence of arson must fail and you must be satisfied that the plaintiff has proven Pilot failed to deal with her claim in good faith and instead dealt with this in a malicious, high-handed, arbitrary or capricious manner, and that Pilot’s conduct warrants the imposition of a penalty ○ Jury says Pilot has to pay to rebuild the house, has to pay to cover the contents that was lost and increased living expenses. Total comes to 318,252.32 in compensatory damages.

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Jury gives 1 million dollars for punitive damages to the Whittens. Pilot appeals and the case goes to highest court in Ontario, gets reduced down to 100K due to being excessive The matter goes to the Supreme Court of Canada. SCC reinstates original amount, 1 mil.

The conduct of aggravated damages is similar to the conduct in punitive damages ● a similar conduct that gave rise to punitive can give rise to aggravated (looking for same) ○ but the focus of the damages is different ● the focus of aggravated is NOT punishing the defendant for his conduct ○ it is about the extra harm suffered by the plaintiff as a result of that conduct, such as high handed conduct that causes extra elements of suffering ○ the focus is on the extra injury, extra damages that came from conduct ○ idea is that the high handed conduct aggravated the injuries and made it worse ■ anguish, grief, humiliation, wounded pride, damage to self-confidence or self-esteem Warvas (1989) Justice Mcintyre ● aggravated damages is ordered to compensate aggravated damages, they take account of intangible injuries and by definition, as a general rule, it will augment damages assessed. ● aggravated damages are compensatory in nature and may be awarded for that purpose ○ punitive damages on the other hand, are punitive in nature ○ aggravated damages will frequently cover conduct which could also be the subject of punitive damages Examples of Damages ● Sally is 84, widow and she lives in a small apartment is coquitlam. She has a small pension and about 1 million invested ○ She has 25% invested in gold bullion ○ 25% Canadian Treasury Bills ○ 25% Blue Chip Stocks ○ 25% Long-Term Bonds ● Grandson shows up with a financial adviser, a good guy who has no ill-will and believes he has her best interest in minds. Sally signs over her 1 million in investments to the adviser and he invests in commodities, but they all crash. ● Granddaughter checks portfolio and she has lost 85% of her money, only has 150K left so they decide to sue the financial adviser ● This is negligence, dumbest idea to invest all her money in one area that her lifecycle might not make it through. She relies on this money since she’s retired. He was profiting from these transactions while the widow has no idea where her money was invested. ● Punitive damages need to be awarded because he used the money for his own advantage.

Situation in Smithers BC ● Intersection where there’s a two story building, Macs Milk and 2 Apartments. ○ Mark owns this commercial building ● There is a church and gas station across the street ● Mark goes to sell the building and assessed it for 300k ○ It is found out that leaking gas is damaging the building he wants to sell ○ told by appraiser it will be a costly repair ● goes to the City to dispute, but City just evicts the tenants because it’s not safe ● Mark asks a company how much the repair would be, they say 270k Legal Theories ● tort of nuisance, this was affecting their use/enjoyment and there was damage ● trespass ● rule of strict liability, unusual use of the land that causes problem if escapes Max Amount of Damages ● He lost money from renting tenantings Types of Damage Remedies Injunction Recission Specific Performance Declarations Family Remedies Administrative Law Remedies Criminal Law Remedies June 8th Dionne v. Romanick ● Car crash at an intersection, pedestrian (Dionne) gets hit (two lanes in each direction) ○ she was trying to cross the street (in the crosswalk) ● Negligence Case (motor vehicle) ● Vancouver Registry (Not New West or Chilliwack) ● Gray J (Judge) ● December 1st, 1999 was the date of the accident Both liability and quantum are an issue, they are deciding who’s at fault and t he amount of damages ● Pedestrian blames driver 100% but driver is trying to get partial blame on pedestrian Life before crash analyzed to see how the accident has changed and impacted individual The accident reviews all the facts from the crash very carefully ● The Judge reviews these to see what evidence is correct and consistent

Medical Evidence ● they agree on brain injury claim, don’t know if moderate or severe though ● they name doctors, to give the court expert opinion evidence Dr David ● Family Physician, knows the background and history of plaintiff Dr Hirsch ● Physiatrist, doctor who specializes in physical rehabilitation ● he took care of her injuries, the recovery process Dr James Schmidt ● Neuropsychologist, a psychologist who specializes in brain injury Dr Vondette ● Psychiatrist, hired by court as an expert who is not a treater to the plaintiff ● impartial opinion, plaintiff goes to doctor of defense choice The Courts find the defendant (Romanick) 100% at fault (a) Non-pecuniary Damages (i) general damages for pain/suffering (b) Past income loss (special damage/calculation) (i) income loss since accident (c) Loss of earning capacity (general damage/non-calculation) (i) physical capacity to earn money, future income loss (d) Cost of future care; and (i) out of pocket expenses, expected in the future (e) Special Damages (i) past expenses (up until trial) The non-pecuniary damages did overlap, the parties were close in agreement They were using precedent cases, similar cases to demonstrate their case ● awarded $185,000 for non-pecuniary damages ● awarded $120,000 for pre-trial loss of earnings (closer to plaintiff estimate) ● awarded $50,000 for post-trial loss of earnings (closer to defence estimate) ● awarded $160,000 for cost of future care, out of pocket expenses ● awarded $14,726.54 for special damages Out of Pocket Expenses ● psychological counseling ● kinesiologist ● fitness pass ● physiotherapy ● homemaking, transportation, etc

Summary: Dionne awarded $160,000 for her costs of future care Bill has lived in the same house for 70 years ● the family house, he grew up in this house and has many wonderful memories ● when Bill was a boy, his grandfather, father and him planted trees on the property line ● whenever the trees blossomed, reminded him of those warm memories of planting them ● when his grandfather and father died, he loved to admire the trees ● he last saw his father alive, sitting under the trees so he always thinks about them ● Big roots began to create a bumpy landscape, making Bill’s lawn unevening but also going onto the neighbours side ● Bill’s neighbour loves the trees as much as Bill does, they are family friends ● In April of that year, just as the trees were about to blossom, Bills neighbour has a heart attack and passes away, with the house going up-for-sale ● Mr. McGregor buys the property and moves in next-door ● Bill goes over to introduce himself, McGregor immediately brings attention to the roots and begins to complain about them (and the cherry blossoms creating a mess) ● Bill goes back over again, McGregor again complains about the tree and tells Bill “in 7 days, I will cut the roots along the property line” ● Bill hires an arborist, the expert informs him the trees will die when the roots are cut ○ and the trees could be unsteady, could blow over onto property ● Bill informs McGregor about the expert opinion, McGregor states that liability is on Bill if anything were to happen and it’s not his problem ● Bill ask a lawyer about the value of the tree and what damages would be, lawyer informs Bill that he will launch an injunction which will prevent him from removing the roots Injunction ● length of time they’re valid and what do they do, two types... ○ Prohibitory: prevent, prohibit or restrain somebody from doing something ○ Mandatory: require somebody to do something (require performance of an act) Three different types ● Interim Injunction: can be obtained right away, even before the actual civil claim is filed ○ only granted for a short time period (usually days/temporary situation) ○ the idea is to secure the status quo, the situation and give time to the plaintiff until the claim is filed (holds things in place until a interlocutory injunction is used) ○ the application for an interim injunction is an Ex Parte application ■ without notice to Defendant (McGregor) to serve to the defendant before they can act ●

Interlocutory Injunctions: temporary injunction (like Interim) but Interlocutory is usually up until the time of trial ○ the lawsuit has now begun, McGregor has now been served and has notice of the injunction (would be in contempt of court if he violated it) ○ this is after the claim has started, and interlocutory does not end the legal dispute

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available to ensure the fairness and justice is done on-the-way to settle dispute Interlocutory Injunction ex: Mr McGregor, his agents, servants or successors in title be restainted from cutting the roots of the trees or otherwise interfering or inhibiting in anyway the natural growth of the trees until the trial of this proceedings or until further order of this court.

What will the Judge ask before granting Injunction? ● Is there a serious question to be tried? (serious or substantial legal issue) ● Will the applicant suffer irreparable harm, if the application is refused? ● Who will suffer the greater inconvenience? Defendant (if injunction is granted) or Plaintiff applicant (if injunction is not granted) ● Case will go to trial, see if Judge grants a permanent injunction Man wants to buy an ice cream parlor ● he begins to talk to the owner, who states the parlor makes a good profit ● based on the representation, you agree to pay a down payment (20K) with the remainder due in 90 days (40K) ● labour day weekend ends, summer is over and business is absolutely dead ● there has been a pre-contractual representation that induced him into the contract and this is misrepresentation, he could… ○ affirm the contract (continue working) ○ or; can...