1 Unit 4 – Civil Law Procedures
2 Chapter 13 – Understanding civil procedures
3 What is Private Law? Private law deals with disputes between persons and between individuals and companies. It is also known as civil law There are many branches of civil law – we will look at tort law, family law and contract law
4 Parties involved Litigants are the parties involved in the civil action Jones v. McDonalds Corporation of Canada Jones is the Plaintiff –she has initiated the litigation (legal action). She is suing for damages or compensation (usually money) for a wrong suffered McDonalds is the defendant – the party against whom the action is being taken Standard of proof is on the Plaintiff to prove the case on the balance of probabilities – plaintiff has to prove that his/her version of facts is more the more likely or more truthful version
5 Minors and persons with disabilitiesMinors (persons under 18) are under the age of majority and cannot be sued or sue in their own name A minor/person with disability who wishes to sue must be represented by an adult – next friend or litigation guardian A minor who is being sued must also be represented by an adult – Guardian ad litem - person appointed to act on behalf of the minor or person with a disability
6 civil action Pleadings – documents stating formal allegations by the parties regarding their claims and defences Complex civil actions – those regarding a significant amount of money, are brought before a Superior Court Less serious matters are brought before Small Claims Courts
7 Starting an action Civil suit begins with a Writ of Summons – A legal document that commences civil actions. It is issued by the court and informs the defendant of the claim and orders them to respond A Statement of Claim – outlines the facts supporting a civil action and the remedy desired (relief sought). Must be precise and detailed and not include personal opinions, exaggerations, or evidence. Defendant can ask for particulars – more/specific details to prepare a defence
8 Choices for defendant Ignore the claim which results in a Default Judgment (award against the defendant) Accept liability and settle out of court File their own Statement of Defence
9 Statement of Defence The defendant’s version of events/facts in response to the plaintiff’s complaint – denies the allegations in part or in whole Defendant could file a counterclaim – an independent cause of action against the plaintiff Third party claim – someone else is liable or at fault
10 Examination Examination for Discovery – each party is entitled to conducts its own examination of the evidence. There can be no surprises or new evidence Information is gathered through oral examination and recorded with fewer restrictions on the types of questions asked. It provides both sides with the opportunity to assess strengths and weaknesses; identify issues both sides agree with to save court time and money and encourage settlement
11 Evidence Both sides are entitled to examine all documents that the other parties have in their possession, power and control. Each side must prepare an affidavit of documents which is a list of all relevant documents that will be used at trial. If a document is not listed, it usually cannot be used at trial Privileged documents – documents which cannot be used – excluded (documents between lawyer and client or any comments made when they are attempting to settle outside of court)
12 Settling outside of courtParties are encouraged to settle out of court. Some ways are: Defendant does not respond within time frame Court considers case to be trivial or frivolous and strikes out the plaintiff’s actions Party makes an offer to settle If a party makes an offer to settle that turns out to be as good as or better than the result at trial, then the refusing party can be penalized by having to pay the costs of the other party Example – X is suing Y for $15,000. Y offers to settle for $12,000 by X refuses. X wins at trial but only gets $10,000 – X could be ordered to pay Y’s court fees starting from when X refused settlement
13 Class Action Lawsuits This is a lawsuit filed by one or more individuals on behalf of a group of people. Purpose it to enable average citizens with a common complaint to challenge a large corporation who can afford the best and most expensive legal services
14 Civil remedies General Damages Pecuniary – “money”Award for losses that can be easily calculated by determining how much money the plaintiff lost. Loss of future earnings or the cost of future care The judge considers the plaintiff’s future earning capacity and life expectancy Pecuniary losses for future care can amount to millions of dollars – may need special facilities, professional help, and expensive equipment to help them with everyday tasks
15 Civil remedies General DamagesNon-pecuniary – compensation for losses you cannot put a price on. Doesn’t involve actual loss of money and is difficult to measure Looks at the pain and suffering you would endure Courts tend to award similar amounts for similar non-pecuniary losses – look at common law Supreme Court set an upper limit of $ as the max compensation that could be awarded. (The “Trilogy”). The court has allowed this figure to fluctuate with inflation. Now it would be about $300,000 Assessing these kinds of damages is the responsibility of the judge or civil jury
16 Minds on… Read and make notes on Civil Court structure and appeals, the “Trilogy”, Civil Remedies & Enforcement and Alternative Dispute Resolution (1) Handout & pages 350 – 360 Pg. 350 #1 & 5 Pg. 352 #1 Pg. 357 #1a, 2, 3, 5 Pg. 360 #1 & 2 (2) pages 394 – 408 Pg. 396 #1 & 2 Pg. 398 #1 Pg. 404 #1, 2, 3, & 5 Pg. 408 #1 & 2
17 Chapter 14: Negligence & unintentional torts
18 Weird tort claims Bill Smith filed a lawsuit against the estate of Elvis Presley, charging that the estate has been “perpetrating a fraud” that Elvis died in He claimed the fraud interferes with his attempts to sell his book regarding Elvis’ current whereabouts A law student sued his law school for admitting him. He claimed that they should not have done so as he stood no chance of passing the course Ernesto Mota suffered brain damage for swallowing a bag of cocaine in a police station so that it couldn’t be used against him as evidence. He sued for $7 million claiming police should have stopped him
19 Negligence and torts Damage done to a property or a personal injury caused by another person is tort Unintentional torts – are the result of an accident or an action that was not intended to cause harm Negligence – is doing or omitting to do something that a reasonable person would or would not do under the circumstances Reasonable Person – reflects the community standards of appropriate behaviour
20 Negligence Involves the failure to exercise a duty of care (conduct) towards others where a reasonable person could foresee the neighbour would be injured You must take reasonable steps to avoid acts or omissions which you should be able to foresee might injure those around you - Neighbour principle – Anyone who you can reasonably foresee being injured by your actions Foreseeability – people are only required to exercise care towards those whom they can reasonably foresee might by injured by their acts or omissions This means that everyone should be aware of what is likely to happened to other ordinary persons. That the defendant must have been able to foresee that the plaintiff belonged to a group of people which might be affected by the defendant’s actions
21 Negligence Negligence is a form of conduct that falls below that Standard of Care required by society, and it involves an unreasonable risk of harm to others Standard of care is reduced for a minor Standard of care is greater for professionals acting within their professional capacity Specialized standard of care
22 How do you prove negligenceThe civil law standard of proof, balance of probabilities, applies To win a negligence case, all of the four elements must be proven: Duty – Plaintiff must show that the defendant owed them a duty of care Breach of care – The plaintiff must show that the defendant failed to meet the standard of care expected Damage- Plaintiff must show they suffered some damage, injury or loss because of the plaintiff’s actions Cause - Plaintiff must show that the damage, injury or loss was caused by the defendant’s breach of duty. There must be a relationship between the defendant’s actions and the damage, injury or loss to the plaintiff. If there is no relationship, the case is dismissed Remoteness – harm that could not have been foreseen by the defendant because of the lack of close connection
23 Minds on… Luke knows Sam is coming over. Sam slips and falls on Luke’s driveway which is covered in snow and ice. Sam breaks his hip and slides down the icy driveway to the street and into the path of an oncoming car driven by Jane. Jane swerves to avoid Sam but hits an icy patch on the road. She slides into Amy and Joe who are walking on the sidewalk and then hits a telephone pole. Amy is knocked unconscious and Joe’s dog is killed. Jane’s car is damaged and Rob, a passenger in the car, was badly injured. The telephone lines are all out of service as a result of the collision. Doug us unable to call an ambulance for Steve, who has suffered a heart attack. Steve dies
24 Minds on… Should Luke have reasonably foreseen that someone might slip and fall as a result of the snow and ice building up on his driveway? Should Luke have reasonably foreseen that someone could slip, fall and slide down the driveway to the street and into the path of a car? Should Luke have reasonably foreseen that these events would result in Sam’s injuries? Should Sam have reasonably foreseen that the injuries suffered by Amy, Joe and the dog? And the loss of telephone service which resulted in Steve's death? Is there a direct, or remote, relationship between the fact that Luke did not shovel his driveway and Sam’s injuries? Is there a direct, or remote relationship, between Luke not shoveling his driveway and Jane’s accident? Is there a direct, or remote relationship between Luke not shoveling his driveway and Steve’s death?
25 Parental ResponsibilityAlthough parents are not automatically liable for damages caused by their children, they can be held liable for negligence if they fail to train their children or supervise their activities Ontario Parental Responsibility Act, 2000 – a person who has property destroyed or damaged may bring an action against the parent of the child in Court up to the maximum allowed by that court If a child is injured because of their parent’s negligence, they can sue their parents
26 Special types of liabilitySpecial Liabilities Occupiers’ Liability Vicarious Liability Hosts Automobile Negligence Strict Liability Product Liability
27 Special Liabilities Product Liability – Consumers can sue manufacturers who fail to meet a standard of care to prevent injuries to consumers who use their product Occupier’s Liability – People who own or occupy property have a duty to maintain their property so that no one is injured when entering their premises Vicarious Liability – person found liable for damages even though that person did not cause injury. Usually applies in workplaces – employers held responsible for actions of their employees Hosts – someone who serves alcohol to their guests or paying customers – duty of care to their patrons and guests and to anyone who may be injured by negligent driving BYOB different – supplying the venue not the alcohol
28 Special Liabilities (cont’d)Automobile Negligence - owner of vehicle is liable for damages that result from the negligent behaviour of anyone who drives the owner’s car Strict Liability – defendant is automatically liable for an injury caused by a dangerous substance or activity even if the defendant was not negligent (fires, vicious animals, toxic waste or fumes)
29 DEFENCES TO negligenceVoluntary Assumption of Risk – a person who participates in an activity known to be risky cannot sue for damages if the injury is of the type known to occur in that activity It is assumed that the person is aware of the risks involved in the activity, and by participating in it has volunteered to accept that risk Skydiving
30 DEFENCES TO negligence (cont’d)Participation in Illegal Activities – Injuries related to participation in illegal activities are not eligible for compensation Puddle of water on the floor of gas station. Manager leaves it and a thief breaks into the station and slips and breaks an arm
31 DEFENCES TO negligence (cont’d)Inevitable Accident – Defendant to prove that conditions beyond their control occurred and that an accident could not have been avoided, even with great skill and care Lightening strikes beside your car while you are driving. Scared you fishtail and come to a sudden stop, causing a large pile up
32 DEFENCES TO negligence (cont’d)Contributory Negligence – defendant tries to prove that the plaintiff contributed to his/her own injuries by his/her own negligence. He/she is partially responsible for the problem and shares some of the responsibility. Plaintiff’s actions made the accident more likely to occur or the injuries more serious Passenger injured in a car accident because the driver was reckless. However, the injuries were made more severe because the passenger wasn’t wearing a seatbelt
33 Minds On The plaintiff participated in the activity knowing it was dangerous. The actions of the plaintiff helped cause his or her injuries. Although one person caused the injuries, someone else may be liable for the damages. The manufacturer is liable if its product harms anyone. The responsibility to avoid injuring someone. The injury suffered by the plaintiff was the result of the defendant’s actions. A civil wrong. Harming another person through carelessness. TORT VCARIOUS LIABILOITY PRODUCT LIABILOITY DUTY OF CARE NEGLIGENCE VOLUNTARY ASSUMPTION OF RISK CONTRIBUTORY NEGLIGENCE CAUSE-IN-FACT
34 Minds On… List and describe the three factors that must be proven in an action for negligence. Distinguish between Duty of Care and Standard of Care and provide an example of each. Give an example between an invitee, a licensee and a trespasser
35 Chapter 15: intentional torts
36 What is an intentional tort?Actions what are intended to cause injury to others by interfering with their personal safety, health or enjoyment of property. Examples of intentional torts are assault, (threat of harm), battery (harmful physical contact), trespass and defamation There must be the intent or desire to bring a specific result or consequence or know that the actions will have a specific result or consequence
37 Examples Your neighbour spreads a false rumour that you are using your basement as headquarters for money laundering, and as a result you are asked to resign from your coaching position on the local hockey team – your reputation has been damaged and an injury has taken place
38 Intentional torts & criminal actsAn event that involves a criminal act might lead to a civil action as an intentional tort Same act can result in two legal consequences – criminal law and civil law Purpose of criminal – justice and protect society Purpose of civil – compensate victims for loss or injury
39 If one person: It is the crime of: And also the tort of: Hits another Holds another against their will Breaks into another’s house (with the intent to steal Takes another’s stuff Kills another Assault Forcible confinement Break and enter Theft homicide battery false imprisonment trespass to land conversion, trespass to goods wrongful death
40 Intentional Interference with a personOne of the largest categories of intentional torts is known as “intentional interference with a person” Includes assault, battery, medical battery, false imprisonment, malicious prosecution, intentional infliction of mental suffering, and invasion of privacy
41 Intentional Interference with the personAssault: plaintiff has to prove that the defendant intended harm, the plaintiff believed the threat was real and true and that the defendant could have carried out the threat Harm does not have to be physical. Plaintiff can recover damages even if no physical injury happened. Battery: intentionally touching someone without his or her consent. It does not have to injure, it just has to offend the plaintiff in some way Sexual assault: people who are sexually abused while in the care of residential facilities such as group homes, camps, long-term care hospitals, boarding schools
42 Intentional Interference with the personMedical battery: when a doctor does not explain the procedure properly, performs a different procedure from what was proposed, or obtains consent through fraud or misrepresentation False imprisonment: being confined by someone without legal justification and against your will and you cannot escape. The defendant has restrained the plaintiff’s liberty but the defendant must show that the restraint was justified in order to avoid liability. Does not have to be held in jail – just held against your will (car, house, work – wherever you feel you have no choice but to stay)
43 Intentional Interference with the personMalicious prosecution: when criminal proceedings against you were unjustified, you may be able to claim malicious prosecution. Individuals abuse the process of the courts by allowing proceedings to be brought or continued even though they know that the prosecution is wrong. Several conditions have to occur: Someone has to be charged with a crime when there are no reasonable grounds for the charge The person investigating or continuing with the proceedings is motivated by the desire to harm The proceedings against the defendant must be resolved in their favor The defendant suffers damage as a result of the proceedings
44 Intentional Interference with the personNervous Shock and suffering: when someone deliberately shocks another person or acts in a way that causes a person mental anguish resulting in emotional stress and illness. The conduct must be extreme and intentional and the victim must be able to prove that they suffered mental or physical harm as a result.
45 Intentional Interference with propertyYou should be able to enjoy your property and possessions without interruption or disturbance. Interference with enjoyment happens if people enter your premises without permission, play loud music, create constant noise or use items that belong to you. Includes trespass to land, nuisance, trespass to chattels, and conversion
46 Intentional Interference with propertyTrespass to land: anyone who intentionally enters your property without permission or legal authority Damage does not have to be done, and the person does not need to be aware that the property is private. Intent means to “go on the land” – simply by being there without permission Conversion: equal to theft. The defendant “converted” your property to their own use
47 Intentional Interference with propertyNuisance: Things that prevent you from enjoying your property. For example, loud noise, fumes, barking dogs Private Nuisance – unreasonable and substantial interference with someone’s right to enjoyment of property. If an activity on your neighbor’s property physically damages yours. Public Nuisance – when a nuisance interferes with the public interest in areas of safety, health, comfort, convenience, or morality Trespass to Chattels: if people intentionally and directly interfere with another’s movable personal property. The property does not have to be damaged
48 Defences to Intentional InterferenceDefences to interference with the person Anyone sued for intentional interference can raise the following defences Consent – given voluntarily and to a specific act Onus is on the defendant to prove consent Self-defence – using reasonable force to protect oneself against injury or the threat of injury Defendant’s must prove they were in immediate danger of actual or threatened harm, that the use of force was necessary to prevent personal injury and that the force used was not excessive. Threat of violence must be real to the defendant Defence of a third party – use force if they believed that at the time someone else was in immediate danger The force must be reasonable Legal authority – person has the right to perform an action
49 Defences to Intentional InterferenceDefences to interference with Property Consent – given permission to be on the property Defence of property – use reasonable force to get rid of trespassers from the property If the trespasser was on the land peacefully or originally there legally, the person must be asked to leave and given a chance to before forces is used Legal authority – person has the legal right to be on the premises. Example: police officer, public officials Statutory Authority – main defence to actions of nuisance A statute authorizes the activity being complained about, and the nuisance is the inevitable result of carrying out the activity. (example: government authorizes the building of an airport – there is going to be noise)
50 Defamation of CharacterDefamation – if accusations made are unfounded and cause injury to a person’s fame, reputation or character Person’s good name and status in the community is damaged Two categories – slander & libel Slander – oral statement or a gesture that damages a person’s reputation The plaintiff must establish that the statements were made to someone other than the plaintiff, that the statements referred to the plaintiff and that they would lower the plaintiff’s reputation Libel – Defamation of a permanent form – written, printed, recorded or filmed. May also include drawings, cartoons and carvings. Courts consider libel more serious than slander: damage is greater because more widespread
51 Defences Truth – defendant can prove that the statements made were true Fair comment – comments were honest and made without malice. Expressing comment or personal opinion based on a matter of public interest. Must be fair and without malice Absolute privilege – allows members of parliament to speak openly about others without fear of legal action.
52 Defences Qualified Privilege - protection from liability for statements made in certain situations as long as the statements are made without malice Example: letters of reference from employers, teachers, coaches – makes it possible for them to be honest in their assessment without worrying about being sued later Employers may be sued for not telling the truth about employees when supplying a reference
53 Minds On… Dunne v. Gauthier (2000) p. 393 Oniel v. Marks (2001) p. 396Herman v. Graves (1998) p. 403 Page 409 (1) 463 (2) and complete the following questions: #1 a – d # 9 a – c #10 – a & b
54 AnSwers You may say you’re not guilty – the whole world may say your not guilty – but I will prosecute you to the ends of the earth and put you behind bars for the rest of your life Malicious Prosecution “Well, if you will build your house next to a pig farm, you’d expect to get an unpleasant whiff now and then” Private Nuisance
55 answers “Its not as if I stole your boat; it was just sitting there, and I decided it was a nice day to go for a little ride. I only had it a week.” Conversion “No one else ever complained about a little peck on the check, I was just being affectionate” Battery
56 Answers #9 Ms. Johnston was carrying an expensive vase she had just bought as a wedding present. A strong gust of wind pushed Mr. Bristow into Ms. Johnston, causing her to drop the vase, which smashed to the ground. unintentional tort. Ms. Johnston would have to establish that Mr. Bristow owed her a duty of care, that he failed to meet the appropriate standard of care, and that his actions were the cause-in-fact of her damages Mr. Bristow might plead the defence of inevitable accident or that it was an act of God. He might also plead the defence of contributory negligence: Ms. Johnston should not have been carrying a valuable vase on such a windy day.
57 Answers #9 Michael hadn’t paid the rent. His landlord banged at his door and yelled, “If you don’t pay up, I’m going to break both your legs.” intentional tort of assault. Michael would have to establish that he believed the threat was genuine, that the landlord was capable of carrying it out, and that Michael would suffer actual harm if the threat was carried out. The landlord’s best defence might be to challenge Michael on the facts. For example, it would be hard for Michael to prove his case if the landlord was a frail and weak senior citizen (assuming that the landlord was not going to hire someone else to carry out the assault).
58 Answers #9 Colin was in a serious snowmobile accident and lay unconscious in the snow, resulting in frostbite to his leg. When he got to the hospital, he told the doctor that no matter what, he did not want his leg amputated. The doctor agreed. Unfortunately, when the doctor began the operation, he realized he could not save Colin’s leg. He called the orthopedic surgeon who agreed that the leg had to be removed or Colin would die. The doctor amputated the leg. Intentional tort of medical battery. Colin did not consent to the amputation. If Colin’s chances of survival changed after Colin was anaesthetized, the doctor might plead that he could not obtain consent under the new circumstances and he did what was necessary to save Colin’s life. However, if the doctor failed to explain to Colin in advance that not amputating would result in death, he may not have fully explained the risks of the surgery to Colin. This act of omission may make the doctor liable.
59 Answers #9 Camilla was having major problems with her computer. She had been up all night trying to finish writing an article for which she had a tight deadline. When the repairman arrived he said that he needed to order a new part for the computer and started to leave. Camilla became extremely upset and stood in front of the door, blocking his exit, and told him that he could not go until the computer was fixed. She finally let the repairman leave half an hour later, after he arranged with his boss to lend Camilla a replacement computer. intentional tort of false imprisonment. The computer repairman would have to prove that Camilla confined him without legal justification against his will and that he could not escape. In her defence, Camilla might argue that the repairman could have left her home. This would be more reasonable if Camilla was a small woman and the repairman could easily have gotten past her. However, if the Court believed that the repairman was so intimidated by Camilla’s action he did not feel it was safe to leave, then he may have grounds for a civil action.