Civil Law

1. Civil Law

2. Differences between Civil Law and Criminal Law • What happens when you go to civil court? • Will the cost and worry of litigation be worth it? • What alternatives are available? • Stay tuned to find out….

4. Before Litigation • You think you've been wronged and could take legal action. Should you sue? • Perhaps someone has started a civil action against you. Should you respond? If you don't defend yourself, the plaintiff will win by default and there'll be a judgement against you • Is court action worth it? • Are there alternatives?

5. I Want to Sue… What Now? • Do you have a cause of action for which the law provides a remedy? • Do have you evidence to prove your case? • If not, there's no point going further • Is there a valid defense that can be raised against your lawsuit? • How strong is the defendant's evidence? • Does the limitation period for your particular action still give • you time enough to sue? • If not, you've lost your chance

6. I’m getting Sued…. What Now? • Does the plaintiff have a cause of action and strong evidence? • Do you have a valid defense and strong evidence? • Was the action begun within the limitation period? • Is it worth it? • Consider costs, risk, stress, delay, time, and uncertainties • If not, should you consider alternatives?

7. Why Time Limitations? • Time limits prevent the threat of action from hanging over someone's head forever, and ensure evidence is reasonably fresh • Limits can range from a few days to many years • The Manitoba Limitation Act puts a two-year limit on most personal injury actions, • beginning from when the victim knows about the injury and learns the defendant's identity • In the case of a minor, the two-year period begins when the minor becomes an adult • If people become mentally incompetent, the clock stops running during the period they're incapable of handling their own affairs

8. How Solid Is Your Case? • You must be realistic about your chance of success • Weigh the odds: • Are there grounds for action, with all necessary elements present? • Is the evidence solid? • Is a defense available? • If you're on uncertain ground, you might be wise to seek an out-of-court settlement • A good lawyer will advise you of your chances • An inexperienced lawyer may misjudge them • A greedy or aggressive lawyer may be eager to ignore them and fight to the last dollar-your dollar, of course

9. Is It Worth lt? • Once you've estimated your odds of success, consider if it's worth fighting about • What do you gain if you win? • If you win, can you collect? • How much will it cost to win? • Alternatively, how much will it cost to lose? • Can you afford the emotional stress, which can be severe and prolonged? • There are good reasons why most civil suits are dropped or are settled out of court…

10. What Is This Going To Cost Me? • There are various ways of determining fees: • Fixed: a flat amount for a routine service • Hourly: when it's hard to predict the time required, the lawyer might bill on an agreed-upon hourly or daily basis • Percentage: a value of the subject matter (debt, estate, etc.) • Contingency: a percentage of the award if you win; this is common in personal injury suits • Lump sum: an amount determined after the case is over • In addition to fees, there will be disbursements-out-of-pocket costs such as court fees, photocopying, expert reports, etc • you'll pay these fees regardless of the fee method used

11. Fees • Strangely enough, clients are often reluctant to talk about fees before a case begins • It's only when the bill arrives that reality is faced • Don't be shy-ask about fees, and then get it in writing • Expect to pay a retainer before work begins (a deposit paid into the lawyer's trust account to cover fees and disbursements as the case proceeds) • If you and your lawyer can't agree on the bill, you can tax it by submitting it to a Supreme Court Registrar who will review and arbitrate

12. Can I Do This On The Cheap? • There are many free or inexpensive sources of advice and information • These can help you handle a simple situation or prepare you for a more complex one: • Legal education societies • Self-counsel books can be found in most public libraries • Community legal services offer assistance to low income earners • Many lawyers offer an initial consultation at little or no charge • The Lawyer Referral Service directs you to a lawyer for a charp first half-hour consultation • Court Registry employees can provide literature, and answer procedural questions • The Legal Services Society offers pamphlets, the Law Line phone service, and advice on civil matters

13. DIY • Most small actions can be settled in small claims court at minimal cost • Other parts of the legal process are also undergoing continuous simplification, so that people can do more of the work themselves with a little guidance

14. Can You Collect Your Judgment? • “You can't get blood from a stone." • When deciding if it's worth going to court, make sure you'll actually be able to collect the damages awarded you • Some defendants are too poor to pay the judgment • Others are evasive or hard to find, and you'll face further costs and delays before squeezing even a dollar from them • However, if the defendants have any property or income, there are methods of getting money from them. • Or if you are the defendant, methods of getting money from you!

15. Civil Courts and Procedures

16. Small Claims Court • A division of Provincial Court, Small Claims Court is the one you'll most likely use for a typical tort or contract damages claim • You don't need a lawyer. • There's no jury, just a judge • Pre-trial settlement conferences were added in 1991 • These settlement conferences now resolve about 50% of all small claim cases before trial

17. Residential Tenancy Arbitration Hearings • Small Claims Courts do not hear residential landlord-tenant disputes • These are settled by arbitrators of the province's Residential Tenancy Office • There's a $10,000 limit • It's almost like Small Claims Court, but it's not exactly a court

18. Supreme Court and Other Higher Courts • Higher courts deal with: • All civil actions for over $7500 (and ones for less when the plaintiff so chooses) • Defamation suits • Suits involving property title • Appeals • You'll probably need a lawyer. • Jury trials are sometimes chosen (strategically) • Juries are popular for large injury suits

19. Enforcement-Collecting a Judgment • After a settlement or trial judgment is made, one party usually owes the other some money • Once the judgment is made, it's best to refer to the litigants as creditor and debtor • A creditor is owed money by the debtor

20. Give Me My Money! • The courts don't collect money for you, but they can help • Court orders: • Garnishment: when wages are automatically deducted from someone's bank account • usually only about 30 percent of take-home pay can be garnisheed • A Seizure and sale of the debtor's clear-title goods by the bailiff • The debtor can choose $2000 worth of personal goods to keep • A Registration of a lien against the debtor's land • or other property in some cases, such as vehicles or boats

21. Small Claims Payment • In small claims court, after making an award (called a payment order) the judge may inquire about the debtor's ability to pay and the creditor's need for payment. • The judge may then order either: • A payment schedule agreed to by debtor and creditor; if they can't agree, the judge may order one that seems reasonable • No payment schedule at all, meaning the debt is due immediately • A payment hearing so that more financial background can be provided • Apayment order will be made at that time

22. If They Don’t Pay • If a small claims debtor doesn't pay, the creditor has a number of options • The most common ones are: • A payment hearing to set up or accelerate a payment schedule • A hard-pressed debtor may also request a hearing to make an existing payment schedule easier • a default hearing if the debtor isn't paying as required under an existing payment schedule; • the judge can jail the debtor for up to 20 days for contempt of court; the debtor will still owe the money, even after going to jail • And, of course, those good old favorites: • a garnisheeing wages, bank accounts, or other money • a seizure and sale of the debtor's goods by the bailiff • registration of a lien against the debtor's property

23. Small Claims Court Process • Small claims court uses the term claimant instead of plaintiff • Within its jurisdiction it can order payment of damages, specific performance, and such other relief conduct as is needed and appropriate for the case • There are several basic steps in the small claims process: • A claimant prepares a notice of claim and files it with the court • A claimant serves defendant with notice of claim and reply form • A defendant completes and returns reply form within time limit; may make an offsetting counterclaim against claimant • A settlement conference where a judge meets privately with both parties to discuss case and see what they agree on, and to help plan information needed for a trial; no witnesses are heard • A trial-witnesses give evidence under oath

24. Identifying the Defendant • It's very important to know exactly whom you're suing. • Is it a limited company? • A partnership? • An individual? • A minor? • This can make a big difference when you reach trial • Check invoices • Do a little detective work if necessary

25. Serving Defendants with Documents • Service of documents just means delivering the paperwork • Exact rules exist and must be followed exactly; a free booklet from the court describes each step clearly • The process varies when serving minors, companies, partnerships, or other legal entities such as municipalities • If the defendant is an adult person, you can: • Deliver it in person: yourself, a friend, or a process server who'll charge you a fee; you simply hand over the document; • If the defendant refuses to take it you can drop it at his/her feet • Send it by registered mail • If the defendant is hard to locate, you can ask the court registrar for permission to serve documents by another appropriate method such as leaving it with a relative or placing a newspaper legal notice

26. Winning or Losing by Default • The case may automatically be lost by a party who fails to: • Return the reply form in time (within 14 days after service, or 30 days if served outside the province • Appear at the settlement conference • Appear at the trial • If the defendant loses this way, the claimant can obtain a court default order for the entire amount originally claimed • It has the same legal force as a trial payment order

27. The Trial • First comes a settlement conference to see if you can resolve some or all of the dispute • If not…

28. Review • You intend to sue for slander and ask $8000 in damages. Which court will you use? Why? • A Canadian armed forces vehicle killed your pig. You want to sue. Which court will you use? Why? • In addition to damages, there are other remedies a court can order. Briefly describe two of them. • Jed owes you a $2800 judgement but isn't paying it. He takes home $2500 per month and owns a $2000 car that's encumbered by a bank loan chattel mortgage. What's the best way to collect? Why? • After a $900 small claims settlement, Eric agreed to a payment schedule of $100 a month. But he's not been paying it, although he could. What action will you take to enforce payment? Why?

29. Alternatives to Court

30. Alternatives • Going to court may not be worth the costs, effort, risks, delays, stress, and uncertainties • Alternatives are widely used: • Settling out of court before or during the court process • Insurance coverage and adjustment services • Arbitration and mediation services • Victim compensation programs

31. To settle, or not to settle… That is the question…. • Settling out of court is how most cases are resolved • Oneadvantage is that you know what's going to happen • You're not risking the decision of a judge or jury • It's an agreement between the two parties, not a court order • Another advantage is that you avoid the cost, delay, stress, and uncertainty of further legal wrangling

33. Ouch!!! They Chose Poorly…. • Why did they not settle? • There are two not-so-minor details in this case 1. the cartoonist and newspaper felt strongly that they were fighting for a principle-the right to freely make editorial comments about politicians • To them, more was at stake than this one case or these dollars 2. This decision was later appealed and the defendants won • The BC Court of Appeal said that the defense of fair comment applied because the cartoon represented the cartoonist's honest opinion. • The $3500 award was dismissed, and Mr. Vander Zalm had to pay the defendants‘ costs (which by now were very high)

34. So, Should I Always Wait For a Better Offer? • There may be occasions when it's not wise to settle out of court, or at least not on the first offer • Do your homework before signing any settlement offer, including insurance adjustments • Don't be rushed • Informed advice may help you get a better deal, but get that advice before you sign; after you sign is too late

36. Insurance • Insurance spreads risk • Everyone pays a little, then large amounts can be paid out to the few who need it, • You're foolish not to insure yourself against liability if you rent or own property, are self-employed, drive a vehicle, or in any other way are exposed to possible lawsuits • We're not talking here about loss, theft, or fire • That's self insurance • Rather, we’re talking about lawsuits, called public, or third partyliability • The insurance firm is the first party • You, the insured, are the second party • anyone suing you is the third party • Compulsory auto insurance protects victims by ensuring there's enough money available to pay them • It also protects owners from being ruined by huge judgements • More on risk later…

37. Arbitration and Mediation Services • Arbitration means having a neutral third party make the decision • It’s a similar concept to a judge, except that it's outside the court system • Arbitration can be initiated in many ways, ranging from voluntary agreement to force of legislation • Mediation means having a neutral third party help the parties come to an agreement themselves • Ex: labor disputes • A growing number of dispute resolution services and organizations can help parties come to an agreement • Recall restorative justice….

38. Victim Compensation • If you have a work injury or suffer a disease as a result of your work, the Workers' Compensation Board pays: • medical expenses • wage-loss benefits • a pension if permanent disability results • it may also help train you for alternative employment • WCB claims are determined by adjudication withrecourse to review and appeal processes • Employers pay WCB premiums based on accident rates • WCB safety regulations and training programs attempt to prevent injuries before they occur • If you're a worker under the WCB Act, and your employer is also covered by the Act, you are barred from suing your employer or fellow worker in tort • You must accept WCB compensation

40. WCB 1. You're probably not covered by WCB if your employer doesn't have to register with WCB • Private homes • Most farms • Unless you apply, you're not covered if you work independently (casual labour, freelancer, small business) 2. If you employ uninsured workers in your home, farm, or business, you're open to lawsuits from them for any work injuries

41. Criminal Injury Compensation • You may be entitled to compensation for injuries you suffer as an innocent victim of a crime, or while helping a police officer, or trying to prevent a crime • You may also be eligible if you were dependent upon an innocent victim killed in a crime • Thisprogram is administered by WCB and compensation is similar to that offered to workers • It is not as generous as civil lawsuit settlements, which are often based on estimated future losses and suffering • However, it nicely avoids the problem of finding, suing, and dunning criminals who may well be unidentified, unpleasant, and broke

42. Review 1. Who is the third party in the phrase third-party liability? 2. Explain the difference between arbitration and mediation. 3. Why should you have public liability insurance if you rent an apartment? 4. You hire a house cleaner or a handyperson to do repairs in your house. Are they protected by WCB? If not, what protects you?

43. Tort Law

44. What is a Tort? • A tort is a civil wrong • A tort is generally not a crime, however, some torts can also be crimes and a person may be charged and convicted of a crime and sued for the wrongdoing in another court action • See OJ • The purpose of tort law is to right a wrong or compensate the victim of a tort for loss or injury • The victim of a tort can sue the wrongdoer in court to establish legal liability or responsibility in order to get compensated

45. Key Characteristics of a Tort • It's a civil matter (not a criminal one) • It’s a private dispute between the victim (plaintiff) and the wrongdoer (defendant) • The victim must have been wronged, it's not just bad luck • Someoneelse is at fault for: • Doing something wrong (an act) • Failing to do something right (an omission) • Being legally responsible for another's act or omission

46. Is It a Tort? • The victim has suffered emotional, physical, or financial injury and deserves compensation (usually money) and/or relief (usually a court injunction forbidding the harmful conduct). • Ex: A drunk driver is breaking the law and will be charged by the Crown whether an accident results or not • If the drunk injures you, that's a tort and you can sue in civil court to recover damages • Much of tort law is based on common law, however, some parts of tort law are based on statutes • As society's standards change over time, so does the common law; new decisions reflect new attitudes and become the basis for future cases

47. What Is Fair? • Tort cases often raise challenging questions about what is fair • If you lend someone your car, should you be legally responsible for the borrower's accident? • In a contact sport, where is the line between a fair check and an assault? • What responsibility for self-protection does the victim have? • How can you put a value on pain, loss of health, embarrassment, or theoretical future expenses?

48. Steve Moore • On March 8, 2004, Bertuzzi, then with the Canucks, jumped on Moore from behind 8:41 into the third period of a 9-2 loss to the Colorado Avalanche, driving Moore's body to the ice. Two more players piled on, one from each team. Moore lay motionless for 10 minutes before being taken off on a stretcher. He suffered three broken vertebrae and a concussion — and never played pro hockey again • Bertuzzi later claimed that Vancouver head coach Mark Crawford said in the dressing room during that game that Moore must "pay the price" for a hit he had given to Canucks captain Markus Naslund in a previous game • Moore’s $68-million suit included a demand for $38 million in lost hockey wages and punitive and compensatory damages, plus $30 million for lost wages from a post-hockey career. Moore has a Harvard University degree, but claimed his post-concussion syndrome prevented him from getting work commensurate with an Ivy League education • Burtuzzi assaults Moore

49. The Many Kinds of Torts • Torts usually are grouped into three areas: • Negligence(unintentional tort)—failing to prevent harm; sometimes called an omission • Intentionaltorts—causing harm by an act (though some intentional torts may not have harmful intent) • Strictliability—responsible for harm caused by something that is especially dangerous

50. Negligence and Related Torts • Negligence occurs if you should have done something, but you failed to do it, and so caused someone to suffer loss or injury. • Typical cases of negligence are: • A mechanic incorrectly repairs brakes and causes an accident • A driver fails to signal and causes an accident • An engineer miscalculates the design of a beam and causes a store roof to collapse • A surgeon amputates a patient's healthy leg, not the diseased one • A chemistry teacher doesn't advise lab students to wear goggles while heating an acid, leading to injuries when the acid splatters • Negligence is unusual because it's based on what you didn't do, not on what you did • It's an act of omission rather than one of commission