90 Divisions of Law Substantive Law –Consists of rules that outline your rights and obligations in society. –Divided into areas of Public Law – criminal, constitutional, administrative law Civil/Private Law –tort, family, contract, property, labour, employment, will, etc. Procedural Law –Outlines the steps involved in protecting our rights (police, courts)

90 Resolving Civil Disputes Chapter 11

90 What you should know? 1.What are the difference between criminal and civil law? 2.What is a tort? 3.What are the procedures involved in bring a civil action to trial? 4.What are the types of damages and other remedies available for resolving civil disputes? 5.What is alternative dispute resolution (ADR), and what are the most common forms?

90 Civil Law Civil law, also known as private law or tort law, regulates disputes between individuals. It also regulates disputes between individuals and organizations such as businesses or governments. The main purpose of criminal law is to punish offenders while protecting society. The main purpose of civil law is to compensate for harm, usually in the form of damages - $$$ awarded to a plaintiff for harm, loss, or injury. Does not concern all of society. Plaintiff: the person or party that initiates the lawsuit. Defendant: the party that must respond to the lawsuit.

90 Civil Actions Typical civil actions, or lawsuits, fall under these categories: 1.Tort Law: injuries or harm created by one person to another’s body, reputation, or property; “tort” is derived from a Latin word meaning “twisted” or “wrong.” 2.Family Law: personal disputes that involve marriage, divorce, child custody, adoption, and support claims. 3.Contract Law: failing to fulfill the terms of an agreement, such as non-payment for a service. 4.Labour Law: disputes in the workplace such as wrongful dismissal, unpaid overtime. 5.Property Law: disputes about ownership or maintenance of property.

90 Tort Law – a major division of civil law Tort –Means a wrong that could be either intentional or unintentional (negligent). Until the 19 century, tort law dealt mainly with intentional wrongs such as trespass. What made tort law important was the emergence of negligence (ch 12), and other important aspects are family, contract and employment.

90 You Be the Judge Page 359 Rudman v. Hollander, 2005 Bike and Car incident Saskatchewan Big Problems, Small Claims in Saskatchewan’s Peoples Court Leader Post July 6, 2015

Crimes and Torts Many crimes can also become torts. If a person is convicted of a crime, the victim does not usually gain from that personally. In many cases, a person can be sued in addition to being charged. Tried differently, in different courts and by different judges/lawyers. Example: A person who is charged with assault may also be sued by the victim for battery. If successful, the victim will receive compensation directly. Other common examples include –the crime of break and enter = the tort of trespass to land – the crime of theft = the tort of trespass to goods.

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11.2 People who can prove that they have suffered injury or loss through another person’s fault deserve some remedy. Remedies: financial payment, punishment, deterrence Media followings civil cases closely and therefore may impact people’s future actions. –Hot coffee – McDonald’s, Dead fly in water – Mustapha v. Culligan of Canada –Sales, publicity issues, similar suits, etc. –Affect other cases.

90 Lieback v. McDonald’s Woman Burned by McDonald’s Hot Coffee, Then the News Media Retro Report, The New York Times – COEhttps:// COE Case – 000F064F/FOV1-000FD0B9/FOV D5D/McDonalds%20Hot%20Coffee%2 0Case%20Assignment.pdfhttp://chatt.hdsb.ca/~ClarkSte/FOV1- 000F064F/FOV1-000FD0B9/FOV D5D/McDonalds%20Hot%20Coffee%2 0Case%20Assignment.pdf

90 RYU Page Define “tort”, give three examples of torts. 2.List the five main branches of civil law and provide two examples of each. 3.How can an offence be both a crime and a tort? Example. 4.Main purpose of tort law. 5.Explain how a judgement in a tort action might also contain an element of deterrence.

Civil Courts Civil actions can become very complex and almost always involve money. Similar to criminal law, there are different types of civil courts used to hear various civil cases. Cases that involve large sums of money are tried in a provincial supreme court and may be appealed to a provincial appeal court. Some cases that require important precedents may go the Supreme Court of Canada. Generally, cases that are relatively minor in nature are heard in small claims court.

90 Small Claims Court Often referred to as “the people's court,” small claims court resolves civil disputes of $10,000 or less, although some provinces have limits as high as $25,000. The trial itself is more informal, with the plaintiff and defendant representing themselves. Both parties present their sides of the story to a judge and do not need to know much about the law as the dispute is usually fairly simple. Plaintiffs file the paperwork themselves and pay a court fee. The defendant receives a copy of the lawsuit and then a court date is set.

90 Small Claims Actions Common examples of small claims actions: –breach of contract –minor accidents –damage to property –recovery of property –unpaid bills, loans, rent, or wages The dollar limit for small claims court ranges from $5000 to $25,000, depending on the province. SK: Claims cannot exceed $30,000 in value. Disputes involving title to land, slander, libel, bankruptcy, false imprisonment or malicious prosecution must be handled at Queen's Bench. SK:

90 Balance of Probabilities In a criminal case, verdicts are based on the concept of beyond a reasonable doubt. In a civil case, verdicts are based on the balance of probabilities, which means “more probable than not.” The plaintiff and defendant, also known as the litigants, must convince the judge that their version of the dispute is the correct one. The judge must then decide which version or story is more believable. If the plaintiff wins the case, the defendant is liable or responsible; if the defendant wins, he or she is not liable. Litigation: legal action to settle a civil dispute

90 If more than one person or party has suffered the harm, all injured parties should sue together as plaintiffs I one action (class action suit). Some provinces: Minors may sue their own up to $500, must have an adult act for the minor. Civil action burden of proof is on the plaintiff. The plaintiffs not required to prove the case beyond a reasonable doubt like a criminal trial. Instead, must try and convince a judge that the events most likely took place in the way they claim … balance of probabilities.

90 Case and You be the Judge: Case: Ferguson v. Birchmount Boarding Kennels Ltd., 2006 Page 363 Caused harm/injury – animals Judge: Martinig v. Powell River, 2002 Page 364 Softball

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Civil Trial Procedures What happens during a civil trial? Grounds to sue? Proper court (small claims court or provincial supreme/superior court)? $$? Other options?

90 Filing and Serving a Claim A plaintiff must begin a lawsuit by filing a statement of claim, which includes: –the plaintiff’s name and address –the defendant’s name and address –the amount of money or compensation being asked for –a brief, clear summary of the reason for the claim A court fee must be paid by the plaintiff and a copy of the lawsuit is served to the defendant. A civil action must be filed within a certain time of the incident; this is the limitation period. The time limit ranges from 2 to 5 years. A defendant has between 10 and 30 days to respond, depending on the province. Three main responses: accept and settle, file a defence/version of events, do nothing/ignore.

90 1.Defence or Reply Don’t owe the plaintiff anything, he/she prepares a statement of defence (the defendant’s response to the plaintiff’s complaint), enter a defence, will be sent to the plaintiff by court. 2.Payment into Court Defendant feels that the plaintiff is entitled to some but not all of the claim, he/she can pay the amount of the small claims court office. Plaintiff can either accept and drop the claim or pursue the case in the hope of getting the full amount.

90 3. Counterclaim The defendant might also make a counter claim (suit against the plaintiff for damages or other relief). Must relate to the problem that caused the plaintiff’s claim. Ex; damage to vehicles – counterclaim. Judge (60/40, 80/20, 100/0) 4. Third-Party Claim Involve a third party who the defendant feels is partly or completely responsible for the dispute. Ex: brakes fixed a week before the incident, the defendant might involve the repair shop/mechanic to share blame and the cost. Otherwise there might be a suit to the repair shop.

90 5. Default Judgement No reply in the required time period, known legally as entering an appearance, a default judgement is automatically against him. That means that the plaintiff wins and is awarded a judgement against the defendant by default, since he/her has not responded to the claim. 6. Out-of-Court Settlement When the parties to a lawsuit settle the case before trial. Can happen at any point, either party can make a formal or informal offer to settle the dispute. Settling before a trial saves time and money.

90 A Defendant’s Options When a defendant is served with a civil action, he or she has a number of options: 1.Accept total responsibility and settle the claim by providing a payment in court or settling out of court. 2.Ignore the claim—if so, a default judgment will be awarded for the plaintiff. 3.File a counterclaim, in which the defendant counters the lawsuit filed against him or her by filing his or her own lawsuit against the plaintiff. 4.Fight the plaintiff’s claim by filing a statement of defence and going to trial. 5.Make a third-party claim, in which the defendant claims a third party is completely or partly responsible for the dispute.

90 Higher Courts In higher courts with cases that are more complex and involve larger amounts of money, other individuals and mechanisms are brought in to assist the litigants. In a higher court, it is recommended that the plaintiff and defendant retain counsel (lawyers). An examination for discovery is a pre-trial process held to learn the evidence that each side intends to present in court. Similar to disclosure in criminal law, both sides agree to show each other all relevant types of evidence (e.g. documents, photos, files).

90 Pre-Trial Conference called settlement conference is the last change for the parties to resolve the dispute before trial. Both litigants will meet with a judge or a court-appointed case manager/referee who encourages the parties to settle the claim. Basic summary, surprises at trial, discussions, opinions of possible judgements. Many cases are settled with open and honest communication. If no agreement is met then a trial date will be set.

90 Saskatchewan - w-a-case-goes-to-small-claims-court w-a-case-goes-to-small-claims-court

90 Civil Trials Examination of Discovery – in civil cases, a pre-trial process to learn the other side’s evidence (can take long time), question and answer session/hours/days, limit surprises, helps reduce court time and money, disclose all relevant info. –If evidence is withheld – contempt of court/charges or case thrown out. Often parties settle the case after discovery, when both sides realize it would take a lot of time and money to pursue the case nay further. Civil actions (outside of small claims court) can be decided by a judge or jury. In civil court, a jury is comprised of six people. Juries are not often used in civil trials. The plaintiff presents his or her side of the story first and is followed by the defendant. Each party then summarizes, or provides a closing statement, to the judge and/or jury. A decision can be made to grant all, part, or none of the plaintiff’s claim.

90 Judge/Jury Judge – instructs the jury members on the law applicable to the facts of the case. Jury must consider the evidence, as well as questions such as these: –Who was at fault, and what caused injuries or loss? –Is that person totally at fault, or are both parties somewhat to blame –How should damages be determined –How much should be damages be?

90 You Be the Judge Thomas v. Hamilton (City), Board of Education, 1994 Page 369 Football Case

90 Class Action Suits A class action lawsuit is a single legal action that is brought forward on behalf of several people who share a common grievance. Example: In recent years, there have been a number of lawsuits against drug manufacturers by people who claim to have suffered side effects ranging from overdoses to illness. In this kind of situation, all the people who have suffered from a particular drug can sue the drug manufacturer together and can all be named as plaintiffs. Class action suits put more pressure on defendants and, if successful, often result in higher settlements.

90 Class Action A single legal action brought on behalf of all members of a group with a common grievance. Share the cost of the lawsuit and the outcome. Easier to afford. Ex: customers/defective product, 2007 – OxyContin, pain reliever, fatal overdoes … Atlantic provinces brought suit.. Current and former executives pleaded guilty in the US court lying about the drug’s risk of addiction.$634.5 million in fines

90 Class action suit - Aboriginal residential schools (longer in parts), students, native culture dismissed, sexual and physical abuse, Each of the former residents to receive compensation of about $ pulse $3000 for each year spent in the once- mandatory schools. Cost the government approximately $2 billion. Class action suits are more common in the states. More product liability matters and consumer disputes are being filed.

90 Erin Brockovich – movie/true story – e=1&v=ELzu636Xf6Yhttps:// e=1&v=ELzu636Xf6Y Tony Merchant – Indian Residential Schools Class Action – actions/current-class-actions/indian- residential-schools-class-actionhttp:// actions/current-class-actions/indian- residential-schools-class-action –

90 Benefits of Joining a Class Action Avoid the necessity for hundreds, or thousands, of people to file similar individual lawsuits. They seek to ensure that people with similar claims are treated similarly. They help eliminate common barriers, such as economic barriers, that prevent people from pursing legal actions.

90 RYU Page List five examples of classes heard in small claims court. 2.In a civil action, what does the “balance of probabilities” mean? How does it differ from the burden of proof in a criminal trial? 3.What three options are available to a defendant who has just received a plaintiff’s statement of claim? 4.What is the purpose of an examination for discover, and what are its benefits/ 5.What is a class action lawsuit, and what are the benefits of joining such an action?

Judgement and Civil Remedies Small Claims Court – judge give oral judgment while parties are still present Higher courts – judge usually needs some time to review evidence and relevant law – “reserving judgement” In private law, compensation is usually provided in the form of damages. Purpose is to return plaintiffs, as much as possible, to the same position they were in before the loss or injury. –Help with future care and to compensate for future loss of income I some cases. Judges try to award similar amounts for similar injuries. Past cases/Precedents – provide guidance.

90 There are various types of damages, including: 1.General 2.Special 3.Punitive 4.Aggravated 5.Nominal

90 General Damages This type of damages cannot be easily or precisely calculated and can be divided into pecuniary and non-pecuniary. Pecuniary damages: loss of income, future earnings, and cost of specialized future care Non-pecuniary damages: money awarded for pain and suffering and loss of enjoyment of life (much harder to calculate) The term pecuniary means “related to money.”

90 Looking Back/Case 1978 Supreme Court of Canada Trilogy Page 373 Case Young v. Bella, 2006 Job reference Page 374

90 Special & Punitive Damages Special Damages This type of damages is awarded for specific out- of-pocket expenses incurred before the trial. These include hospital costs, ambulance services and therapy. Punitive Damages – Exemplary Damages This type of damages is meant to punish the defendant for what is considered to be malicious behaviour, discourage offenders and general public from behaving in a similar manner. If the defendant has already been convicted in criminal court for the offence, punitive damages are not usually awarded. Awarded for intentional torts (Ch. 12)

90 You Be the Judge Wolf, Ward, and Luck v. Advance Fur Dressers Ltd. Et al, 2005 Page 375 Hunting

90 Aggravated & Nominal Damages Aggravated Damages This type of damages is awarded for mental distress and humiliation, or pain and suffering. In Canada, there are limits to how much money a person can receive for pain and suffering. Multi-million dollar lawsuits are more common in the United States. Nominal Damages This type of damages is awarded as a moral victory for the plaintiff. In these cases, the plaintiff has suffered little or no harm, but the judge agrees with his or her reasons for bringing the lawsuit forward.

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Cases McIntyre v. Grigg Impaired Driving – Criminal/Civil Page

90 Injunctions An injunction is a court order that directs a person to avoid doing something for a specific period of time and can be issued as a type of civil remedy. If a person served with an injunction fails to obey it, he or she may be found in contempt of court and receive a fine or jail sentence. Examples include staying away from a certain person or limiting certain types of behaviour. Ex: During the Olympic Games, injunctions are often issued to prevent unlawful use of the Olympic symbols and trademarks, such as the 2010 Olympic mascot – Vancouver.

90 Contingency Fees A contingency fee is an arrangement between a lawyer and a client regarding payment. Lawyers agree to be paid a certain agreed-upon percentage at the end of the trial or settlement but do not receive money otherwise. Contingency fees are common in class action lawsuits or if a person cannot afford a lawyer. The risk for lawyers is if they do not gain the verdict, they will not receive money for their services—but if they do win, they usually make more money than their standard fees.

90 Enforcing Judgments When a plaintiff wins a case, it is the plaintiff’s responsibility to collect any damages awarded from the defendant, who must cooperate. In order for a plaintiff to successfully claim his or her damages, a defendant’s ability to pay is analyzed. This is known as the examination of the debtor. A defendant must have: –money –assets that can be sold for money –money owed to them that can be redirected to the plaintiff A defendant may also have his or her wages garnished— a percentage of the defendant’s income is directed at paying the damages, similar to repaying a loan. If a defendant’s wages are garnished, the court must leave him or her with enough money to live on and provide for any dependants he or she may have.

90 Alternative Dispute Resolution Also known as ADR, alternative dispute resolution is designed to solve civil disputes without having a formal trial. Advantages to ADR include: –It is less expensive and faster than going to court. –It usually creates less stress on the parties involved. –It may result in a better or fairer resolution. –It often results in an acceptable compromise that benefits both parties while avoiding the animosity of going to court. There are three basic ADR models: negotiation, mediation, and arbitration.

90 ADR Models Negotiation: the parties involved try to resolve their dispute directly, with or without lawyers. Mediation: a neutral third party is brought in to help the parties resolve their dispute; a mediator has no actual decision-making power. Arbitration: a neutral third party is brought in to decide the case; an arbitrator’s decisions are binding and final.