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Civil Law


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The following is no substitute for advice provided by a lawyer specifically for you. It is intended only to help you understand that advice. No responsibility is taken for any problems arising except due to paid legal advice.

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Since 2005, we focus on Real Estate, Wills and Estates, and Small Business. We have left this web page in place as a public service.

Principles

Penal law concerns conflict between a person and the government. Civil law involves conflict between people. Remember though, the government is a (legal) person too, so it can be involved in Civil law.

Civil law is mostly judge-made law ('common law'). In theory, every time a judge decides a case, the minimum necessary reason for the decision becomes law. The government from time to time will override or codify the common law. Since we inherited our law from England, although we continue to develop it on our own and new English law is not binding, though influential, some of the cases go back nearly one thousand years. In my first year of practise, I was tickled to cite a case from the 1600s.

Since it develops organically, it is an oversimplification to impose simple patterns on it. However, for the purpose of this web page, I will do so.

The courts will give help to claimants (Plaintiffs) who can show that some person (the 'Defendant') owed them a duty and failed to perform that duty. The duty is generally created by a contract, by a 'trust', by a 'tort', or by a law (e.g. the Builder's Lien Act..

A Contract is an agreement. To be enforceable, each party must get something out of it ('consideration') and it must be specific enough that the court can figure out who made the contract (the 'parties'), and what the consideration was. Obviously, delivering the promised consideration is the duty.

Generally, a gift is not enforceable by the law. However, once it is performed, then the court will honour it. So, if I say I will give you my hat, the courts will do nothing if I don't. If I say, as I hand you the hat, "I give you my hat," then the courts will protect your ownership of the hat.

A trust is a bizarre notion where legal and equitable ownership are different. We inherited much of our law from England. In England, there were two courts, the legal courts of the King, and the Chancery Courts of the Church, also known as the Courts of Equity. Their laws developed separately, but they had to operate together. Finally, they were merged into one court, but preserved the law made by and for both.

So, with a trust, the legal owner is the 'trustee', who must look after the property for the equitable (also called 'beneficial') owner, who is the 'beneficiary. It can be created by contract, by implication of law, or by action. For instance, if I say, "This is now your hat," then you are the beneficiary of the hat which I am now holding in trust for you. The courts must be able to determine the parties, the property, and the purpose of a trust.

Some torts are ancient. For instance, the tort of assault may have begun even before the crime of assault. Ancient torts include fraud, defamation, assault, etc. Obviously, they can overlap the criminal law. But most torts nowadays are based upon negligence. Less than two hundred years ago, a woman named Donohue purchased a beer in a pub in Britain. Unbeknownst to her or the pub owner, the bottle contained a dead mouse. She had no contract with the manufacturer, only with the pub owner, who was innocent. The court found the manufacturer liable by creating a new tort, 'negligence', deciding that everybody owes a duty to his 'neighbour' (the 'good neighbour principle') to take reasonable care to avoid reasonably foreseeable harm to them.

Since then, the tort of negligence has expanded enormously, even to relations already governed by contract. Even where it has not expanded, it has been influential, adding the doctrine of reasonable foreseeability to most areas of the law. The law is much more flexible, but much less predictable and much more pervasive.

Many people complain that tort awards are too high. To some extent, they are confusing Canadian with American courts. The American courts routinely offer immense punitive awards. However, often the same people complain that criminal punishments are too low. Yet expanding criminal law risks jeopardizing civil liberties. As a result, criminal law imposes a very high standard of proof ('beyond reasonable doubt'), and will reject evidence that the government took improperly. Criminal law is condemned for ignoring both the crime and the victim, instead focusing on the government's use of power. Yet that is exactly what it is designed for. In the ancient days, a ruler maintained order according to his own whim. When the 'rule of law' developed, the ruler could only punish citizens for breaking clear, known rules, to which the ruler was also subject. Criminal law is intended primarily to restrain the ruler's over-abusive desire to keep order. Criminal law will never escape its punitive origins, and over the centuries, it has become apparent that punishment's effectiveness is very questionable, especially on crimes of passion.

Civil law, being between citizens, does not risk civil liberties, so the court simply decides who to believe according to the evidence ('balance of probabilities'), and accepts and rejects evidence according to time tested standards of reliability. So it is focused on the truth. It awards compensation based on the amount of damage reasonably foreseeable, so it is proportionate to both the injury and the offense. It is restorative, not punitive.

In short, I take the opposite position, that criminal law should be gradually supplanted by civil law.

Conflict Resolution

The business of the law is conflict. Lawyers are just as happy avoiding conflict with properly drawn agreements and corporate documents and providing good advice. However, once a conflict develops, there are escalating levels of intervention available to resolve it. A lawyer can help with any level.

The first is representation. When an articulate, knowledgeable lawyer presents your case in a calm, impersonal way, it is more persuasive.

The next is mediation, where a third party controls the discussion, but not the solution. Generally, the parties agree on whether to participate in mediation. In Saskatchewan, the lawyer's professional body, the Law Society, licenses and trains mediators, who are also often lawyers. However, obviously the parties may agree to use an unlicensed mediator.

Next is arbitration. In that case, the parties agree on a decision maker (Arbitrator) and may also agree on the procedure and subject matter. The Arbitrator is supposed to be someone both sides trust, with a special expertise in the subject matter. The Arbitrator controls both the procedure and the decision. The result is enforceable at least as a contract, and in some contexts, the government allows the decision to be enforced directly, like a court order.

Finally, there is litigation. This is the ugliest, harshest, least appropriate way to solve conflicts. But if the parties fail to resolve it with the lesser methods, it is the only option left. One side can force the other side to participate, the procedure is imposed, the subject matter is controlled by law, and the result is binding.

Litigation

Jurisdiction

The court must have jurisdiction over the parties and the subject. The claimant (Plaintiff) submits to the jurisdiction of the court by starting the action ('suing'). The Plaintiff must give notice to ('serve') the Defendant for the court to have jurisdiction over the Defendant. However, if the Defendant tries to evade service, the court can order notice by other means, such as advertising in a newspaper. Once served, the Defendant may object to the jurisdiction or defend. If the Defendant defends, then s/he has submitted to the jurisdiction.

The subject must be within the court's power, which is limited by the power granted to the court by the government, and of course, by the power of the government. Obviously a Saskatchewan court has no power over property in Hungary, because neither Canada nor Saskatchewan can give it that power. Likewise, the Small Claims Court has been granted power only over claims up to $5,000.00 and certain types of claims.

In Saskatchewan, there are mainly three courts of first resort (where you can commence an action, namely the Queen's Bench Court, the Federal Court, and the Small Claims Court. The Federal Court mainly involves actions by and against the Federal government.

Procedure

Queen's Bench Court

The Queen's Bench Court is a direct descendant of the English Queen's Bench Court, and its powers are extremely broad.

You start the action by filing a Statement Of Claim. It is a 'pleading'. It must set out the facts, but not the evidence, necessary to permit the judge to give the judgment that you are asking for, and of course, say what you are asking for. The Court will issue a Notice To Defendant, which is an order that the Defendant must file a Statement Of Defence within a specified period or lose by default. Once the Statement Of Defence, another 'pleading', is filed, there is a mandatory mediation session for non-family cases, unless a party gets an order from the court exempting them.

The parties can, once the action has started, apply at any time for temporary ('interim') orders. In an emergency, the court will grant an order without notice ('ex parte'), which will last just long enough to give notice. Otherwise, notice must be given to the other parties in the action by Notice Of Motion. For these motions, the evidence is taken on paper ('affidavits'), and the lawyers argue in 'Chambers'. Nowadays, Chambers is no longer the judge's bedroom, or even office, but a small court room set aside for these applications. Generally they are held at regular, fixed times, and the lawyers all wait their turn.

However, a Superior Court Judge is a Superior Court Judge whereever they are. We once obtained an order in a parking lot. The only problem was that the other side had difficulty believing it was valid.

The next step is 'discovery', where each side is able to determine what the other's side's case is, and to examine any documents they intend to use. There are several methods. The Court's rules require each side to deliver an Affidavit Of Documents, listing all relevant documents they control or possess. They can flag certain documents as 'privileged'. If the claim to privilege is valid, they cannot be forced to produce those documents, but they cannot use them either.

Each side is entitled to examine the other side under oath, in Examinations For Discovery. In addition to learning the party's case, their answers may be used as 'admissions' in evidence, or even if the answer is unhelpful, it may still be useful in cross-examination to challenge a witness' credibility.

If the claim is under $50,000.00, and if certain other requirements are met, the parties may use the Summary Procedure. Under that procedure, they each file sworn written statements (Affidavits), and may pick and choose which ones to challenge and cross-examine.

There are other, more specific disclosure requirements, such as for notices for expert evidence, actuarial evidence, and so forth.

Once the discovery is complete, the next step is the Pre-Trial Conference. This retains its original purpose of trial planning. A judge will organize how much time will be needed for the trial, what admissions will be made, what issues of law are contested, and so forth. But nowadays, the judge generally embarks on a mediation session between the parties. This is amazingly effective in obtaining an agreed solution. Fewer than 10% of actions go past this stage.

Finally, it is the trial. The Plaintiff goes first, placing each witness under oath and asking general, not leading questions, gradually building their case. With each witness, the other parties may ask questions, including leading questions, to undermine the witness, and to bring out favourable facts. When the Plaintiff is done, it is the Defendant's turn. When all the parties have led their evidence, the lawyers present argument. Finally, the judge renders a decision.

Any stage may be postponed (adjourned). There are provisions for trying to reverse bad decisions by 'appealing' to a higher court.

The parties must obey the Judgment. If they don't, then there are several remedies. The other party may bring an application to punish the party for contempt of court. They may issue a Writ Of Execution to order the Sheriff to seize and sell property. They may issue a Garnishee Summons to compel people who owe money to the offending party to pay the debt to the court instead. They may register the Writ Of Execution as an encumbrance against the offending party's goods and lands. There are other remedies too.

The winning party should expect to receive some compensation for legal costs. This is only intended to be a partial compensation, since the winner did, after all, fail to settle the matter. The Rules of Court set out a tariff for various items, which must be calculated.

However, if the winner proves that the award meets or exceeds a formal offer which they made, they get double costs after the time of that offer.

Ultimately, Court Costs are in the discretion of the trial judge. The judge may lower or raise them. Sometimes the award will be for the entire legal cost, if the loser's conduct in the proceeding was particularly bad. These are then called 'solicitor client costs'.

Small Claims Court

A Statement Of Claim is also filed with the court. The court issues a Summons, which must be served. It compels the other side to appear for a trial date. There is no provision for default judgments or discovery or interim orders, but the trial judge may make some interim orders at the trial, simply as an aspect of controlling the procedure of the trial. The trial is essentially the same, though the judge has a lot of latitude in changing the procedure, and is expected to guide parties without lawyers.

Once Judgment is obtained, it is filed at the Queen's Bench Court, and becomes, for the purposes of enforcement, an Order of the Queen's Bench Court, and may be enforced in the same way. There are provisions for trying to reverse bad decisions by 'appealing' to a higher court.

Court costs are not awarded, except for the court fees and costs of serving the documents.

Other Tribunals

Often the government will create specialized tribunals for specific subject matters. The procedure and rules may vary for each. Examples include the Rentalsman and the Labour Board. Practise before these tribunals is called 'Administrative' Law.

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Office Kevin Jaques, B.A., LL.B.
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