Civil Law
Private Law (Civil)
Deals with disputes between individuals Deals with disputes between individuals and companies (or between individuals and the “state”)
Civil Law differs from Criminal law in a number of ways: The citation: E.g. Smith v. Jones in place of R. v. Jones The case bears the names of the litigants (the parties involved in the civil action) The plaintiff (party initiating the legal action) is listed first, followed by the defendant (party being sued) If an individual is suing the government, the government would be listed as the province, city, or division (e.g. Jones v. New Brunswick (Attorney General) The legal action to resolve a civil dispute is called litigation
Proof – balance of probabilities instead beyond a reasonable doubt If the plaintiff can prove that his/her version of the story is more probable, he/she may win Defendant is responsible to prove the facts of his/her case in a defence (if one is raised)
Civil Courts - Small Claims Court Informal Faster Less expensive Cases that are not too complex No examination for discovery $5000 limit in NB (some other provinces $10,000)
- Superior Courts of Provinces and Territories
Amounts greater than allowed in small claims and requires the assistance of a lawyer.
- Provincial and Territorial Courts of Appeal.
- Supreme Court of Canada
Civil Remedies
General damages Pecuniary (money) Lost wages, future earnings, cost of future care Feature earning capacity must be considered (CEO vs. clerk, life expectancy) Difficult to calculate for younger individuals Non-pecuniary For items that you cannot put a price on Pain and suffering Upper limit of $100,000 set in 1978 (has since been adjusted for inflation) Aggravated damages Compensation for humiliation or mental distress Special Damages Awarded to pay for out of pocket expenses. Examples: Drugs, Therapy, Ambulance services, Vehicle repairs Punitive Damages Awarded to punish the defendant. Awarded in cases where the defendant’s conduct has been so poor that the courts describe it as “reprehensible” or “malicious” Examples: False imprisonment/arrest, assault, battery, libel, slander Nominal Damages For cases where the financial losses suffered are minimal. Award of damages to demonstrate that the Court recognize the legitimacy of the complaint. Moral victory Specific Performance Court order compelling someone to fulfill the terms of service/contract Injunctions A Court order requiring someone to do (mandatory) or not to do (prohibitory) something. Permanent or temporary.
Enforcing a Judgement Up to the plaintiff to collect (the court does not cut the victor a cheque) from the judgement debtor Examination of a Judgement Debtor If the defendant refuses to pay, the court may question the judgement debtor under oath to determine their assets Garnishment Courts can order a percentage of the defendant’s wages, bank accounts, money due on contracts, money owed by a third-party to the defendant. Normally there is a time limit to the garnishment (may be renewed is money is still owing) Execution or Seizure Assets of the judgement debtor may be seized by a sheriff or bailiff and sold to settle the judgement. Certain assets cannot be sold: clothing, furniture, or tools used by the debtor to earn a living.
Alternative Dispute Resolution (ADR)
Negotiation Discussion for the purpose of reaching an agreement beneficial to both parties Agreements are recorded as a formal contract Mediation Neutral third-party intervenes to bring the two opposing parties to an agreement Participatation is not always voluntary Agreement cannot be forced Arbitration A neutral third party (usually an expert in the field) hears both sides and makes a binding decision Often used in labour disputes
Advantages Cost savings Time savings Privacy Control
Disadvantages Not appropriate to situations involving violence Confidentiality (non disclosure agreements) No legal precedents set
Alternate Sources of Compensation
Motor Vehicle Liability Insurance Helps to cover costs relating to personal injuries suffered in a motor vehicle accident as well as the costs of damages to the vehicle No-fault insurance Funds made available without evidence of fault Amounts paid are deducted from future awards from future “fault” awards Workers’ Compensation Available to workers injured on the job Not available in all workplaces Paid into by the employer May cover employees injured even if they were at fault Criminal Injuries Compensation Victims of violent crime Often difficult to collect from convicted criminals May be conditions for awards/payments from these funds – i.e. completely innocent and did not instigate or participate in the violent act