Chapter 11
90
Resolving Civil
Disputes
Civil Law
• Civil law, also known as private law or tort law,
regulates disputes between individuals.
• 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 in90the form of damages - $$$
awarded to a plaintiff for harm, loss, or injury.
• Plaintiff: the person or party that initiates the
lawsuit.
• Defendant: the party that must respond to the
lawsuit.
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.”
Family Law: personal disputes that involve marriage,
90 adoption, and support claims.
divorce, child custody,
Contract Law: failing to fulfill the terms of an agreement,
such as non-payment for a service.
Labour Law: disputes in the workplace such as wrongful
dismissal, unpaid overtime.
Property Law: disputes about ownership or
maintenance of property.
2.
3.
4.
5.
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.
• Example: A person90who 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.
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
90 supreme court and may be
tried in a provincial
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.
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.
90
• 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.
Small Claims Actions
• Common examples of small claims actions:
– breach of contract
– minor accidents
– damage to property
– recovery of property
90
– unpaid bills, loans, rent, or wages
• The dollar limit for small claims court ranges
from $5000 to $25,000, depending on the
province.
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
90
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.
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
90 paid by the plaintiff and a
• A court fee must be
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.
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.
Ignore the claim—if so, a default judgment will be
awarded for the plaintiff.
90
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.
Fight the plaintiff’s claim by filing a statement of
defence and going to trial.
Make a third-party claim, in which the defendant
claims a third party is completely or partly responsible
for the dispute.
2.
3.
4.
5.
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).
90
• 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).
Civil Trials
• 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 followed90by 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.
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
90 overdoses to illness.
effects ranging from
• 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.
Remedies
•
In private law, compensation is usually
provided in the form of damages. There are
various types of damages, including:
1.
2.
3.
4.
5.
General
Special
Punitive
Aggravated
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:
90 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.”
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 and therapy.
90
Punitive Damages
• This type of damages is meant to punish the
defendant for what is considered to be malicious
behaviour.
• If the defendant has already been convicted in
criminal court for the offence, punitive damages
are not usually awarded.
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. 90
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.
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
90 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.
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 fees90are 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.
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:
90
– 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.
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
90 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.
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
90
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.