Civil Law/Private Law

CIVIL LAW – law that governs the relationship between individuals Civil law deals largely with private rights and obligations. These include: Contractual rights Property rights Torts (civil wrongs)

Parties are called litigants (Litigation is the action) Plaintiff - party that initiated the legal action Defendant -litigant against whom the action is taken ie: McFadden v. Harris Onus is on the plaintiff to prove the case on a “ balance of probabilities ”-the weighing of evidence to decide whether it is the plaintiff’s or the defendant’s version of the events that is more convincing.

Did you know that… Persons under the age of majority (19 in NS) cannot sue or be sued in their own name. A minor who wishes to sue must be represented by an adult, known as a next friend. If an infant or a person “under a disability” is sued, the court will appoint a guardian or adult to act as the minor’s representative. This person is also known as a “guardian ad litem”.

The proper court: Remember: $15000 or less – Small Claims Court More than $ Superior Court/Provincial Court

Class action suit – a lawsuit initiated by a group of people over a complaint common to all. Examples?

Exxon Mobil (Valdez 1989)

Master Tobacco Settlement

Anderson v. Pacific Gas and Electric

KINDS OF CLAIMS GENERAL DAMAGES SPECIAL DAMAGES PUNITIVE DAMAGES NOMINAL SPECIFIC PERFORMANCE INJUNCTIONS

GENERAL DAMAGES I Pecuniary – monetary compensation for losses that can be calculated based on how much money the plaintiff lost. Example: car accident victim that confines the victim to a wheelchair for life. You can sue for damages to replace the car and also loss of future earnings. Q: How would age play a factor in complicating this matter?

GENERAL DAMAGES II Non-pecuniary – terrible personal loss which does not involve an actual loss of money and is difficult to quantify. Example: pain and suffering, loss of a loved one, mental anguish, aggravated damages (humiliation or distress) CAN A PRICE BE PUT ON THESE? Judges will usually make the monetary compensation based on rule of precedent. However, there is a maximum of $ (recently increased from $ due to inflation) WHAT DO YOU THINK?

SPECIAL DAMAGES -compensation for out of pocket expenses Example: medication, therapy, ambulance services, medical expenses, lost income (fixed period of time), car repairs

PUNITIVE DAMAGES – punish the defendant for reprehensible /malicious conduct Example: false imprisonment or arrest, assault, battery, libel and slander

NOMINAL -minimal compensation to acknowledge a moral victory Example: someone was using your land and you wanted them to stay off, you may be awarded $1 for you suffered no loss but merely wanted to assert your rights

SPECIFIC PERFORMANCE -court order compelling someone to fulfill the terms of a contract Example: buy a puppy from a breeder but the breeder changes her mind and gives you your deposit back. You don’t want the deposit, you want the puppy!

INJUNCTIONS a court order requiring someone to do or not do something Mandatory injunction – to do Prohibitory injunction – forbid to do *These may be permanent or temporary Example: apply dangerous chemicals, copyright trademarks, force striking workers to return to work

ENFORCING A JUDGEMENT You are on your own. The court doesn’t cut a cheque. But….if the defendant doesn’t pay you can take the following steps:

ENFORCING A JUDGEMENT Examination of a Judgment Debtor – being questioned under oath to find out about the debtor’s assets Garnishment – courts can order a % of wages, bank accounts be deducted to pay to plaintiff Execution or Seizure – sheriff seizes assets of debtor and sells them

Alternative Sources of Compensation I Motor Vehicle Liability Insurance – money from the insurer of the defendant’s vehicle (only in motor vehicle accidents) Problem: not everyone has liability insurance II No Fault Insurance – provides immediate funds without evidence of fault III Worker’s Compensation – provincial Workers Compensation Fund IV Criminal Injuries Compensation – criminal injuries compensation boards have been created to compensate innocent victims when the assailant doesn’t have any assets or insurance.

Civil Law quasi ICA Section One (12 pts): –Page 345 Case Study –Page 346 #1-9 Section Two (6 pts): –Page 349 Case Study –Page 352 Case Study Section Three (6 points): –Page 357 # 1-5a

Tomorrow: Torts and Negligence

Civil Law In determining which court will be hearing which case there are different courts for different cases. ● The courts are ● Supreme Court of Canada ● Federal Court of Canada (Appeal Division) ● Federal Court of Canada (Trial Division) ● Supreme of Court of a Province or Territory ● Various Small Claims Courts

Supreme Court of Canada The highest court in Canada ● Parties must get permission to file an appeal at this level ● The decision that is made in this court is legally binding for the entire country

Federal Court of Canada (appeal) ● It hears appeals that deal with matters that impact the entire country

Federal Court of Canada (appeal) ● Tries civil cases that involve the federal government ● Will listen cases such as: ◦ Copyright ◦ Trademark Claims ◦ Citizenship Appeals ◦ Federal Income Tax

Superior Courts of Provinces & Territories (appeal division) ● Listens to appeal cases ● Cases are heard by a panel of three judges ● The decisions can be forward all the way up to the Supreme Court of Canada

Superior Courts of Provinces & Territories ● Cases that include large amounts of money ● Will always have a lawyer ● Trials are heard by a judge and jury ● Examples of cases that are heard: ◦ Class Action Lawsuits ◦ Contract Disagreements ◦ Serious Personal Injury

Provincial Small Claims Courts ● Are the fastest ● The cheapest ● The parties don’t always have a lawyer as they represent themselves ● The financial limit is $25,000

Categories of Torts Intentional Torts Unintentional Torts (Negligence) Strict Liability Torts

Unintentional Torts (Negligence) Unintentional Tort ◦ A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions.

Unintentional Torts (Negligence) Negligence ◦ The omission to do something which a reasonable person would do; or doing something which a prudent and reasonable man would not do.

Agenda Finish notes on Negligence Tort Cases. Assignment Sheet Defamation of Character Learning Target: You will be able to identify the 4 elements of negligence and be able to define defamation of character.

Factors in Negligence Action (pg. 367)

Unintentional Torts (Negligence) To be successful in a negligence lawsuit, the Crown must prove that: 1. The defendant owed a duty of care to the plaintiff 2. The defendant breached the duty of care 3. The plaintiff suffered injury 4. The defendant’s negligent act caused the plaintiff’s injury

Unintentional Torts (Negligence) Duty of Care – the obligation we all each other not to cause any unreasonable harm or risk of harm. ◦ The courts apply a reasonable person standard. ◦ Defendants with a particular expertise or competence are measured against a reasonable professional standard.

Unintentional Torts (Negligence) ● Breach of Duty – a failure to exercise care or to act as a reasonable person would act. ● Injury to Plaintiff – the plaintiff must suffer personal injury or damage to his or her property to recover monetary damages for the defendant’s negligence. ◦ Effect on the plaintiff’s life or profession.

Unintentional Torts (Negligence) ● Causation – a person who commits a negligent act is not liable unless his or her act was the cause of the plaintiff’s injuries. ◦ Causation in Fact (actual cause) ◦ Proximate Cause (legal cause)

Unintentional Torts (Negligence) Causation in Fact (actual cause) ◦ The actual cause of negligence. ◦ A person who commits a negligent act is not liable unless causation in fact can be proven.

Unintentional Torts (Negligence) Proximate Cause (legal cause) ◦ Under the law, a negligent party is not necessarily liable for all damages set in motion by his or her negligent act. ◦ The law establishes a point along the damage chain after which the negligent party is no longer legally responsible for the consequences of his or her actions.

Unintentional Torts (Negligence) ● Negligent Infliction of Emotional Distress ◦ A tort that permits a person to recover for emotional distress caused by the defendant’s negligent conduct. ● Professional Malpractice ◦ The liability of a professional who breaches his or her duty of ordinary care.

The Four Basic Elements of Negligence: 1. Presence of a Duty of Care. The first element is establishing the presence of a duty owed by one person to another Someone Breached Their Duty. The second element is a breach of the duty owed by one person to another (Causation) 3. The Breach Directly Causes Injuries 4. Proving Monetary Losses.

Assignment: Negligence Cases (12 points) 2 points for each case, 0.5 for each elements of Negligence. Readings: Defamation of Character pg Case Study pg. 407 Tomorrow: More on Defamation of Character

Intentional Torts

● A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff’s injuries. ● There are two categories of intentional torts: ● Intentional torts against persons ● Intentional torts against property

Intentional Torts Against Persons ● The law protects a person from unauthorized touching, restraint, or other contact. ● The law also protects a person’s reputation and privacy. ● Violations of these rights are actionable as torts.

Intentional Torts Against Persons (continued) Assault ◦ The threat of immediate harm or offensive contact; or any action that arouses reasonable apprehension of imminent harm. ◦ Actual physical contact is unnecessary.

Intentional Torts Against Persons (continued) Battery ◦ Unauthorized and harmful or offensive physical contact with another person. ◦ Actual physical contact is unnecessary.

Intentional Torts Against Persons (continued) False Imprisonment ◦ The intentional confinement or restraint of another person without authority or justification and without that person’s consent.

Intentional Torts Against Persons (continued) False Imprisonment (continued) ◦ Merchant Protection Statutes – allow merchants to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment if: ● There are reasonable grounds for the suspicion, ● Suspects are detained for only a reasonable time, and ● Investigations are conducted in a reasonable manner.

Intentional Torts Against Persons (continued) Defamation of Character False statement(s) made by one person about another. The plaintiff must prove that: ●The defendant made an an untrue statement of fact about the plaintiff; and ●The statement was intentionally or accidentally published to a third party.

Intentional Torts Against Persons (continued) Defamation of Character (continued) ◦ Slander – oral defamation of character. ◦ Libel – a false statement that appears in a letter, newspaper, magazine, book, photo, video, etc.

Intentional Torts Against Persons (continued) Misappropriation of the Right to Publicity ◦ An attempt by another person to appropriate a living person’s name or identity for commercial purposes. ◦ Also known as the tort of appropriation.

Intentional Torts Against Persons Invasion of the Right to Privacy ◦ A tort that constitutes the violation of a person’s right to live his or her life without being subjected to unwanted and undesired publicity.

Intentional Torts Against Persons Intentional Infliction of Emotional Distress ◦ A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress. ◦ Also known as the tort of outrage.

Intentional Torts Against Property There are two general categories of property: ◦ Real Property – consists of land and anything permanently attached to that land. ◦ Personal Property – consist of things that are movable. ● Automobiles ● Books ● Clothes ● Pets

Intentional Torts Against Property A tort that interferes with an owner’s right to exclusive possession of land.

Intentional Torts Against Property Trespass to Personal Property ◦ A tort that occurs whenever one person injures another person’s personal property; or ◦ Interferes with that person’s enjoyment of his or her personal property.

Intentional Torts Against Property Conversion of Personal Property ◦ A tort that deprives a true owner of the use and enjoyment of his or her personal property by: ●Taking over such property; and ●Exercising ownership rights over it.