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To Sue

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					Civil Law – Private Law
     Civil Courts
“I’ll See You In Court”
   To Sue Someone
      Chapter 12
                 The Right To Sue
• To settle disputes between people
   • Jones v Smith, et al
• Who is involved?
   • Plaintiff
       • person who believes they have been wronged
   • Defendant
       • person who allegedly committed the wrong
   • Litigants
       • the plaintiff and the defendant
• Litigation – the process of suing
             The Right To Sue
• Are You Old Enough?
  • A child may sue or be sued
  • Under the age of majority called infant in law, or minor
  • Minor does not have legal rights
     • Must have adult representation
     • Next Friend if representing the plaintiff
            • to ensure the action is serious and that the
            minor follows the rules and orders of the court
     • Guardian ad litem if representing the defendant
         • to ensure the rights of the minor are protected
              The Right To Sue
• Is It Worth Going to Court?
   • Very often – not
   • Litigation is very costly and time-consuming
      • Case may take years, especially if in a high court
   • Can the defendant pay if Judgement is against them?
      • Defendant may not have enough money to pay
   • Judgements valid for 10 years and may be renewed
      • defendant may be able to pay later
                The Right To Sue
• Is There A Cause of Action?
   • a reason to sue
   • must have a remedy in law to be a Cause of Action
   • Examples
      • Tort – an injury (mental or physical)
      • Breach of Contract
      • Property disputes
             The Right To Sue
• When Should You Sue?
  • Usually a Limitation Period
     • Maximum 6 years
     • Medical must be within 1 year

• Where Do You Sue?
  • Civil Court
     • see pages 216 - 218
    Civil Procedure – How to Sue
Small Claims Court
     Claims Under $25,000.00
  • Summons or Claim
     • Plaintiff must file papers – summons
        • Stating the facts of the dispute (biased) and
            remedy sought
        • Usually requests costs
     • Defendant has certain time to respond
        • May file Counter-Claim
                Civil Procedure
Small Claims Court
  • The Trial
     • Only if parties cannot agree
     • May represent oneself (lawyer not necessary)
     • Both plaintiff and defendant take the stand
     • Either side may call witnesses or present evidence
     • Judge makes a decision
               Civil Procedure
County or Superior Court
   Claims over $10,000.00
   Time consuming and expensive
   • Writ of Summons
      • The Plaintiff stating their side of the problem
   • Entering an Appearance
      • The Defendant responding to the summons
   • The Pleadings
      • Detailed statements of fact
          • To give notice of the action to both parties
          • To define the matters in dispute
          • To assist the court in understanding the dispute
          • To serve as a record of the litigation
              Civil Procedure
County or Superior Court

  • The Discovery
     • Pre-trial meeting of the litigants (with lawyers)
     • Questioning of parties under oath
  • The Pre-Trial Conference
     • Meeting with lawyers and a judge
     • Judge will often say how he will rule at trial
  • The Trial
     • Takes a long time to come to trial
     • May be Judge, or Judge and Jury
     • Decision made on Balance of Probabilities,
         Not Beyond a Reasonable Doubt
              Civil Procedure
• Judgement
  • Must consider 2 factors
     • What harm has been suffered
     • What is appropriate remedy
  • May be in favour of Plaintiff or Defendant
  • Judge may award costs plus remedies
     • Costs may include all, or part of, court costs and
            legal fees
             Civil Procedure
• Remedies
  • Damages – Money
     • Specific Damages
       • Medical expenses, loss of wages, other
          monetary expenses
     • General Damages
       • Pain and Suffering, Loss of Life, etc
     • Punitive Damages
       • To impose punishment
       • Rarely used in Canada
             Civil Procedure
• Remedies
  • Specific Performance
     • To ensure that something is done
        • eg That the construction be completed

  • Injunction
     • To stop something from being done
        • eg that the source of pollution must be stopped
                           Civil Procedure
• Enforcement
   • Garnishment
      • To take money directly from the defendant’s wages
   • Writ of Execution
      • To seize personal assets
   • Lien
      • Registration against property
   • Judgement Summons
      • Appear before a judge to explain financial situation
   • Motor Vehicle Enforcement
      • Driver’s licence suspended until payment made
Alternate Methods of Dispute Settlement
   • Negotiation
   • Mediation
   • Arbitration
   • Litigation
   • These are methods that the court would like people
          to try, with litigation being the last
      • This reduces court time and litigation costs
           See Text P 230 for explanations

				
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posted:9/19/2011
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