C13 - Understanding Civil Procedures

Private Law Procedures

• private law: law that deals with disputes between X and Y (X and Y may be:)
  • state
  • individuals
  • corporations

Categories of Private Law

flowchart LR
	a[Substantive Law] --> b[Private Law]
	b --> c[Tort Law]
	b --> d[Contract Law]
	b --> e[Family Law]
	b --> f[Wills and Estates]
	b --> g[Property Law]
	b --> h[Employment Law]

Parties Involved in Civil Actions

• litigant: parties involved in civil action
• plaintiff: party initiating a legal action
• litigation: legal action to resolve a civil dispute
• damages: compensation for a wrong suffered (usually money)
• defendant: party being sued in a civil action
• liable: legally responsible for wrongful action

Citation: Plantiff v. Defendant

Plaintiff must prove case on a balance of probabilities

balance of probabilities: weighing of evidence to decide whether plaintiff’s or defendant’s version of events is more convincing or likely to be correct

Minors and Parties with Disability

• minor: person under age of majority (<18-19 yrs., depending on province)
  • cannot sue or be sued in their own name
• next friend: adult who represents a child or a person under a disability who initiates civil lawsuit
  • a.k.a. litigation guardian
• guardian ad litem: person appointed to act on behalf of a minor or person under a disability being sued
  • literal meaning: “a guardian for the suit or for the purposes of the suit.”
• person “under a disability”: someone who cannot pursue activity due to a physical impairment

Civil Action

• Complex civil actions or those involving significant amount of money are brought before a Superior Court
• pleadings: documents stating formal allegations by the parties regarding their claims and defences

Stages in a Civil Action

flowchart TD
	a["`**Cause of Action**
	(complaint or reason for suing)`"] --> b
	b["`**Writ of Summons**
	(in some provinces only; issued by the Court)`"] --> c
	bc["`**Notice of Action**
	(interim document)`"] -.-> c
	c["`**Statement of Claim**
	(the facts according to plaintiff)`"] --> d
	cd["`**Notice of Defense**
	(interim document)`"] -.-> d
	d["`**Statement of Defence**
	(defendant's response or counterclaim)`"] --> e
	e["`**Reply**`"] --> f
	f["`**Discovery of Documents**`"] --> g
	g["`**Examination for Discovery**
	(evidence examined by both sides)`"] --> h
	h["`**Pretrial Conference**
	(informal meeting attended by both sides and a judge or master)`"] --> i
	h --> j
	i["`**Settlement Out of Court**
	(agreement reached without a trial)`"]
	j["`**Trial Court**
	(case presented and ruling deliverd)`"] --> k
	k["`**Appeal**
	(decision challenged by either party)`"]

Starting an Action

Each province makes own rules about how actions are started and carried out

• In some provinces, process of civil suit begins with a writ of summons
  • issued by Court, informs defendant of claim, orders defendant to respond
• In most provinces civil suit starts with a statement of claim
• writ of summons: legal document that starts civil actions in some provinces
• statement of claim: document outlining facts supporting a civil action and remedy desired
  • should be concise and clear
  • defendant can ask for particulars if information is lacking
• remedy: relief sought by plaintiff
• particulars: specific details of a claim in civil action
• default judgment: judgment against party who has failed to defend a claim; awarded against defendant
• OPTIONS FOR DEFENDANT
  • ignore summons and statement of claim → default judgment
  • file statement of defence
  • accept liability and settle out of court

Statement of Defence

• statement of defence: response to the plaintiff’s complaint, denying allegations in part or in whole
  • insufficient time: defendant files notice of defence and files statement later within specified period
• counterclaim: independent cause of action brought by the defendant against the plaintiff
  • defendant counter-sues plaintiff

Third-Party Claim

• third-party claim: complaint filed by defendant claiming that another party is at fault
• alternative to counterclaim
• claim alleges that a third party may be liable for all / part of damages plaintiff is seeking from defendant
• cross-claim: claim made between parties on same side of litigation
  • if plaintiff identifies >1 defendant

Reply

• Plaintiff has opportunity to reply to statement of defence
• if plaintiff intends to rely on different version of the facts that may…
  • take defendant by surprise
  • raise new issue

Examination for Discovery

• examination for discovery: examination of evidence by both sides before a civil trial
• parties entitled to question each other before a trial
• counsel has right to question any party with adverse interest in proceeding
• fewer restrictions on types of questions that may be asked
• lawyers may ask about
  • actual knowledge or events (also at trial)
  • any other information
  • beliefs they may have
• information usually recorded and used at trial
  • can be used to contradict testimony and speech before trial
• if litigant a corporation, officer or director is examined
  • obligation to be informed about case
  • may even have specific personal knowledge about it
• prevents element of surprise at trial
• provides both sides w/ opportunity to assess each other’s strengths and weaknesses

Examination of Documents

• each side entitled to examine all relevant documents that other parties have in their control
• affidavit of documents: a list of documents relevant to the case that will be used at trial
  • must prepare before trial
  • documents outside affidavit cannot be used
• privileged documents: records and information that can be excluded from examination by other side in civil action
  • i.e. communications between lawyer and client
  • comments made by parties when they negotiate to settle case

Pretrial Conference

• pretrial conference: meeting where litigants meet their respective and a judge to try and reach a settlement before going to trial
• judge assists both parties to resolve as many unsettled issues as possible
• judge gives litigants unbiased opinion on possible outcome if they decide to take case to trial
• if parties fail to reach a settlement, different judge assigned for trial

Settlement Out of Court

settle out of court: all parties agree to resolve the dispute instead of going to court

• Court encourages settlements
• if person refuses to accept settlement that turns out to be as good as or better than result that refusing party obtains at trial…
• resulting party is penalized by having to pay costs for other party
• i.e. I sue for $10,000anddefendantofferstosettlefor$8,000
  • I refuse offer and win, but am offered only $7,000
  • I wasted everyone’s time and I could’ve had $8,000 without a trial

Trial Court

• Most civil trials heard by Judge alone
• If trial is by jury, judge instructs jury on how to apply law to facts of the case
• no jury: Judge decides whether plaintiff or defendant should succeed
• quantifying damages, especially ones inv. serious personal injury, most difficult part of case
• Court can order plaintiffs to provide security for a defendant’s legal costs
  • ensures court costs are covered and to deter frivolous lawsuits
  • only plaintiffs who feel they have good grounds are prepared to provide security
  • security usually ordered when plaintiff does not live in or own property in province
• Defendant who loses responsible for all damages awarded by the Court
  • may also required to pay part of all of legal costs of other litigant
  • for many, cost of going to court so prohibitive it may act as deterrent

Appeals

• Challenge decision of trial to a higher court
• appellant: party that appeals
• respondent: party that responds to appeal
• some cases: litigants have automatic right to appeal
• other cases: they have to ask for “leave” to appeal
  • get permission to appeal decision
  • based on question of law or question of fact
  • Judge may have made a mistake
  • in some cases, appeals only granted on questions of law
  • usually required to appeal to SCC and only granted if case raises issue of national concern

Class Action Lawsuits

• class action suit: lawsuit filed by 1+ individuals on behalf of a group
• Purpose: enable avg. citizens with a common complaint to challenge large corporations or…
• private citizens who can afford best and most expensive legal services
• 2008: 8 provinces: Ont., B.C., Qc., Alb., Sask., Mb. N.B., N.F.L. have class action legislation
  • N.S. and P.E.I. have pending legislation
• In all provinces, must first be established that class action procedure is the best way to resolve issue
• Prohibitive legal costs
  • Plaintiffs’ lawyers will receive a cut of the monetary award only if successful

Civil Courts

binding: final and enforceable in the courts

Canadian Civil Court Structure and Avenues of Appeal

flowchart BT
a["`**Provincial Small Claims Court or Small Claims Division**`"] --> b
b["`**Superior Court of Province or Territory**
(Trial Division)`"] --> c
c["`**Superior Court of Province or Territory**
(Appeal Division)`"] --> f
d["`**Federal Court of Canada**
(Trial Division)`"] --> e
e["`**Federal Court of Canada**
(Appeal Division)`"] --> f
f["`**Supreme Court of Canada**`"]

Provincial Small Claims Court or Small Claims Division

• fastest, least expensive way to settle disputes
• parties generally represent themselves or bring lawyer, law student, or agent to assist / speak on their behalf
• financial limit of cases varies by province, up to $25,000
• examples of cases heard
  • money owed for unpaid loans or rents
  • services performed
  • goods bought on credit or with bad cheques
  • property damage
  • personal injury

Superior Court of Province or Territory (Trial Division)

• cases involve larger sums than Small Claims Court and more complex disputes
• involve lawyers
• most trials heard by a judge alone
• some trials heard by a judge and jury
• examples of cases heard
  • class action lawsuits
  • contract disagreements
  • serious personal injury cases

Superior Court of Province or Territory (Appeal Division)

• hears appeals from Superior Court of province / territory
• cases generally heard by panel of 3 judges
• decisions can be appealed to S.C.C.

Federal Court of Canada (Trial Division)

• tries civil cases involving federal gov’t.
• examples of cases heard
  • copyright and trademark claims
  • citizenship appeals
  • disputes about employment insurance or federal income tax

No notes for Federal Court of Canada (Appeal Division)

Supreme Court of Canada (S.C.C.)

• highest Court of Appeal for civil cases
• parties must get leave, or permission, to appeal
• decisions binding in all jurisdictions in the country

Civil Remedies

General Damages

Pecuniary

• pecuniary damages: monetary compensation for plaintiff’s losses that can be calculated
  • i.e. loss of future earnings
  • cost of future case
• Judge must consider plaintiff’s future earning capacity
  • i.e. potential earnings of seriously injured highly-paid actor or athlete vs. junior store clerk
  • also takes in to account life expectancy
  • young age = higher compensation
  • too young — factors to consider
    • plaintiff’s marks high enough to get admitted to uni. or college?
    • demonstrate athletic or artistic ability?
    • plans for future career been discussed w/ anyone who could testify at trial?
• pecuniary losses for future care can mount to $1,000,000s 💲💲💲💲💲
• if arising from criminal case, defendant may be in prison and have no moolah

Non-Pecuniary

• non-pecuniary damages: compensation for losses that do not involve an actual loss of money and are difficult to quantify
• Courts tend to award similar amounts for similar non-pecuniary losses
• stare decisis applies — c1-law-and-society
• Upper limit for max. compensation for non-pecuniary damages
  • 1978: $100,000
  • as of textbook release: $311,000
• aggravated damages: compensation for intangible losses like humiliation or distress

Special, Punitive, and Nominal Damages

• special damages: compensation for out-of-pocket expenses like…
  • drugs
  • therapy
  • ambulance services
  • vehicle repairs
• punitive (or exemplary) damages: damages imposed to punish the defendant for their conduct
  • awarded when defendant’s conduct is so bad that court finds it “reprehensible” or “malicious”
• nominal damages: minimal compensation to acknowledge legitimacy of their complaints
  • i.e. Yves buys transit tokens
  • Fares increased by 10 cents
  • Yves informed he’d have to purchase more expensive tokens or incl. additional 10c
  • Yves argues he entered a contract with the transit agency, and they couldn’t just change the terms later on
  • Yves won and permitted to exchange tickets for tokens w/o paying extra 10c

Specific Performance

specific performance: court order requiring a party to fulfill the terms of a contract

• i.e. I go to buy a dog from a breeder and wait until dog is weaned
• When I go to pick up puppy, breeder informs you she changed her mind and doesn’t want to sell the dog
• She offers to return deposit but you want the dog
• Court can order the breeder to sell you the dog

Injunction

• injunction: court order requiring or prohibiting an action
• mandatory injunction: injunction that requires person to do smth.
• prohibitory injunction: injunction that prohibits person from doing smth.
• permanent injunction: permanent requirement / prohibition
• interlocutory injunction: temporary injunction
• Courts grant them to stop activities like…
  • applying dangerous chemicals
  • using copyrighted trademarks or materials
  • failure to comply = charge of contempt

Enforcing a Judgment

Examination of a Judgment Debtor

• Defendant refuses to pay?
• Defendant examined as a judgment debtor
• judgment debtor: person who owes the defendant money
• Involves being questioned under oath to find out about assets
  • i.e. car, boat, motorcycle?
  • bank accounts or stocks?
  • who owes debtor money?
  • place of work? earning / salary?

Garnishment

garnishment: court order requiring third party (i.e. employer) to pay plaintiff money owed to defendant

• i.e. Court orders a cut of the wages earned to be paid to defendant until total amount paid
• Bank accounts, money due on contracts, and money owed by a third party to defendant can also be garnished
• Most provinces impose time limit
  • If settlement not paid, possible to renew order to debtor

Execution or Seizure

• Assets of debtor can be seized by sheriff or bailiff and sold to settle judgment
• Writ of execution typically filed w/ sheriff who arranges for seizure
• Notifies debtor if settlement is not paid within certain period, assets will be sold in payment
• Sometimes assets sold at public auction
  • after deducting costs for sale
  • rest of money paid to settle judgment
  • certain assets cannot be sold: clothing, furniture, tools worker needs to earn living

Alternative Sources of Compensation

Motor Vehicle Liability Insurance

• For cases involving personal injuries from motor vehicle accidents
• Injured party may be able to recovery money from insurer of defendant’s vehicle
• To address people who don’t have liability insurance (legally required)
  • provinces set up uninsured driver funds to compensate ppl. suffering from uninsured drivers

No-Fault Motor Vehicle Insurance

• Provides immediate funds w/o evidence of fault
• May take many years to bring civil action to court and prove fault
• If someone suffers loss beyond coverage, victim may still bring in action for damages
• Victim’s suit successful
  • earlier settlement deducted from eventual award

Workers’ Compensation

• Compensation through provincial Workers’ Compensation Fund
• Not available in all workplaces → below talks about covered workspaces
• Employer pays into fund, based on size and type of biz. op.
• Employee can still receive compensation even if they were at fault
• Claims usually settled quickly, benefits paid immediately
• If settlement insufficient to cover medical costs, worker can ask for case to be reopened and payments reviewed
• Workers’ Compensation does not award for
  • pain and suffering
  • loss of enjoyment of life
  • amount of money paid considerably less than under a lawsuit
• Employees must apply to Workers’ Compensation Board to receive benefits
  • Board decides who receives benefits, how much and for how long
  • Medical expenses usually covered
  • Lost wage awards limited to max. percentage of worker’s avg. salary before injury

Criminal Injuries Compensation

• Victims of violent crime find very difficult to recover court-awarded damages in civil suit
• Assailant may not have any assets, criminals rarely insured
• Criminal injuries compensation boards created to compensate victims
  • many plans incl. those of BC and Ont. have specific eligiblity criteria
  • i.e. victim must be completely innocent
  • victim did not instigate or participate in violent act in any way
  • limits to amount of money awarded

Alternative Dispute Resolution

alternative dispute resolution (ADR): a way to settle disagreements other than by litigation

Negotiation

negotiation: both parties discuss to reach agreement that benefits both parties

Good communication is key

Mediation

mediation: process where neutral third party intervenes to bring two opposing parties to an agreement

• widely used alternative method for resolving dispute
• participation not always voluntary
• certain cases, Court orders parties meet with a mediator before a trial is scheduled
• mediator’s purpose is to keep negotiations on track, cannot force either party to agreement
• both parties benefit
  • eventual solution is “shared” and not imposed by Courts will be more long lasting
  • creates sense of fairness
  • mediator can help create new ideas
  • mediation process is confidential and private, unlike court process

Arbitration

arbitration: process where neutral third party hears both side of dispute, then makes a binding decision

• arbitrator has greater role
• arbitration can be legislated, often is in labour disputes
• both parties agree to choice of arbitrator and share cost for service
• arbitrators usually experts in specific area of law or in particular industry
• they hear and consider merits of dispute based on facts and applicable laws
• someone wins and someone loses
• many Aboriginal rights, titles, land claims and self-governments are resolved through ADR

Pros and Cons of ADR

Pros	Cons
Success rate 80-85%	Inappropriate for violence disputes
Informality	Not best option for those who want to publicize outcome
Privacy	Poor choice to establish legal precedent
Control of parties	Poor choice when outcome affects large group

Sources

Law in Action 2nd Ed., Pearson