Civil Law Differences between Civil Law and Criminal

Civil Law

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….

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?

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

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?

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

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

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…

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

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

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 • • •

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

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!

Civil Courts and Procedures

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

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

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

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

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

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 • A payment order will be made at that time

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

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

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

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

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

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

Review 1. You intend to sue for slander and ask $8000 in damages. Which court will you use? Why? 2. A Canadian armed forces vehicle killed your pig. You want to sue. Which court will you use? Why? 3. In addition to damages, there are other remedies a court can order. Briefly describe two of them. 4. 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? 5. 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?

Alternatives to Court

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

To settle, or not to settle… That is the question…. • Settling out of court is how most cases are resolved • One advantage 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

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)

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

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 selfemployed, 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 party liability • 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…

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….

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 with recourse 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

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

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 • This program 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

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?

Tort Law

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

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 • Someone else 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

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

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?

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

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

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

Elliott Lake Algo Centre Mall Collapse • The head of the public inquiry into the fatal 2012 Algo Centre Mall roof collapse in Elliot Lake, Ont. , more than two years ago, says the real story behind the tragedy was “human failure. “ • “Apathy, neglect and indifference to mediocrity, ineptitude, incompetence and outright greed” riddled the fate of the mall, the report says. • Some engineering inspections were so cursory and incomplete, they were essentially meaningless, he continued • 2 people died, many ore were injured • The lawsuit lists Algo Centre Mall, Eastwood Mall Inc. , Robert Nazarian, the City of Elliot Lake, the Province of Ontario, and the unnamed engineer "who approved the structure of the mall a short time prior to this incident • Robert Wood, the engineer who signed off on the engineering report declaring the mall structurally sound just a few weeks before the roof collapse, was charged with two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm Elliot Lake Mall

Occupiers' Liability • Occupants of land (and of a structure on it) may be liable if persons are negligently injured on their premises • Typical cases of occupiers' liability are: • A landlord in an apartment building doesn't clean an icy sidewalk, and a guest slips and falls • A hotel delays repairing a faulty light switch, resulting in a guest receiving an electric shock • A homeowner doesn't securely fence and lock a backyard swimming pool and a young child falls in and drowns • Pub staff allow a drunken, threatening patron to stay, and eventually he assaults another patron

Product Liability • In 1932, a woman became ill after finding a decaying snail in her bottle of ginger beer • She sued, and for the first time, manufacturers were held responsible for their products even if there was no direct relationship between the customer and the manufacturer (Donoghue v. Stevenson) • Since then, courts have increasingly held manufacturers responsible for injuries resulting from products that are inadequately designed, badly assembled, or not accompanied by clear instructions and hazard warnings • Typical examples of product liability are: • A power saw manual doesn't warn buyers about hazards or show to use the saw correctly; a customer cuts off two fingers and sues • Thalidomide, a drug taken by expectant mothers, causes birth defects; parents sue the manufacturer on behalf of their children • A commonly used insulation material, asbestos, is found to cause lung cancer; manufacturers are sued by dying asbestos mill workers and by building owners who must remove the asbestos

Bailment • If you agree to care for someone's property temporarily, that's known as bailment • You must take reasonable care of the property • The standard of care depends or the type of bailment • If you do it as a business, or benefit by borrowing, a higher standard will be expected • Examples of possible negligence during bailment are: • • A computer is stolen while on loan to a friend You're dog-sitting a friend's dog; it escapes and bites the postal worker Furniture stored in a rented mini-warehouse is damaged by fire While your car is in for repairs, its stereo is stolen

Intentional Torts • Some torts are described as intentional to differentiate them from negligence • However, some so-called intentional torts (libel and slander, for example) often occur from carelessness rather than from intent

Assault • The tort of assault is a threat of bodily harm that causes emotional suffering • Physical contact does not occur (that would be battery), but there's a reasonable fear it will happen. • This is NOT the crime of assault, which covers both threat and contact • Examples of assault are: • After a near-accident, an angry driver comes over to your car door, yelling and making threatening gestures • You're parked in an isolated place and your date suggests that they can now do whatever they wants with you • A farmer orders you off his land; as you turn to leave, he aims a gun at your back, then fires a warning shot in the air

Battery • Battery occurs when physical contact causes injury, fear, or offence • Physical harm need not occur • Examples of battery are: • An aggressive man kisses or touches a woman against her will • A surly bar patron grabs your shirt and pulls you from your chair • A bouncer uses excessive force to expel a customer

False Arrest and Imprisonment • Unless there is a legal reason and right, you cannot deprive a person of freedom • Examples of potential false arrest and imprisonment are: • As a prank, students lock classroom doors while others are inside • An abusive husband orders his wife not to leave the house

Malicious Prosecution • This tort occurs when, for improper motives, a person deliberately makes false allegations to the police or instigates legal actions for spurious reasons • It is a form of harassment that misuses the justice system

Intentionally Causing Mental Suffering • This tort occurs when someone's deliberate or reckless behavior causes serious mental illness in an otherwise normal person • Examples of this are: • Repeated anonymous phone calls make a woman so frightened she is unable to leave her house or answer the phone • A prank medical diagnosis causes severe emotional shock to the alleged sufferer, and to friends and family

Trespass to Land • Trespass to land occurs when, without permission, someone or something enters real property occupied by someone else • Real property is land or buildings (real estate) • This can include public property • Examples of trespass are (if permission is not given): • • A person takes a shortcut through a neighbor's yard. A hunter enters a forest marked with no trespassing signs. Water lines are laid underneath a neighbor's property. Garbage is dumped in a vacant lot or a park. • There are some situations in which you can legally enter buildings or land without prior permission

Private Nuisance • Private nuisance is unreasonable indirect interference with people's rights to use and enjoy their real property • Direct interference is trespass • Plaintiffs generally seek an injunction to stop the nuisance, rather than ask for damages • Nuisance would occur if neighbors were seriously affected by: • • Odors from a chicken-processing plant Noise from a racetrack, outside speakers, car repair, or pets Smoke and ash issuing from a factory Herbicide applied during windy weather

Trespass to Chattels • Trespass to chattels occurs when someone deliberately damages movable property, or chattels • • • Furniture Cars Clothes Tools Etc. • Examples of this tort are: • A car window is intentionally broken • Graffiti is sprayed on a fence

Conversion • Contrary to the common saying, possession is not nine-tenths of the law • If someone has a right to an item in your possession, you can't interfere with the true owner's right to use or control it • Conversion can include taking, destroying, damaging, or disposing of someone's property without permission • Examples of conversion are: • Teens steal a car for a joyride; the owner sues them for stress, inconvenience, alternative transportation, wear and tear, and repairs • A departing tenant leaves behind furniture and clothes that the landlord sells, gives away, or throws out without first going through the proper legal steps • A shopper carries home purchases in the store's grocery cart but doesn't return it; neighbourhood kids push it into the river • A tenant sells the TV set that comes with a furnished apartment • Trades persons, landlords, and creditors have certain legal rights to seize and sell property to protect themselves from bad debts • However, they must follow proper legal procedures when exercising these rights; otherwise they may be guilty of conversion.

Detinue • Detinue is the wrongful detaining or withholding of goods from the owner • Examples of detinue are: • A neighbor who borrowed your boat avoids requests to return it • A woman is angry at a roommate who moved out, so won't let him enter the apartment to remove his piano • A mechanic has slapped a lien on your friend's car for unpaid repair bills; you want to get your golf clubs from the car trunk

Defamation (Libel and Slander) • Defamation is wrongful damage to a person's reputation. In most cases, libel is written; slander is spoken • In several provinces, actual financial loss must occur for a comment to be slanderous • Examples of slander or libel, if the statements cannot be proven to be true, are: • A restaurant owner openly complains about a former cook with other owners, saying the cook was unreliable and incompetent • An open-line radio caller alleges that a certain lawyer is a crook • A union official circulates a public letter accusing a leadership opponent of negotiating a sweetheart contract favoring the company, not the workers • A newspaper quotes a firefighter wondering out loud if a building owner may have set a fire • A cartoon shows a politician pulling wings off flies

Inducing Breach of Contract • If you encourage someone to break a contract they've signed, the other party to the contract may suffer and, if they do, can sue you for compensation • Examples of inducing breach of contract are: • A rock band with a hit song is tempted by a large recording company to break an existing contract with a small label • A new janitorial business offers a lower price if a building owner will break an existing fiveyear contract with another firm • A union leader encourages a local to stage an illegal walkout • As we'll see later, there a few special situations in which damaging and untrue comments can be legally made • These exist to protect the right of free speech • Note: the wrongdoer within this tort is a third party, someone outside the contract who causes someone else to break it. • If one of the signatories to the contract acted on his or her own, that would be a matter for contract law

Deceit • If someone causes a loss by deliberately making a false statement, the victim can sue for compensation under the tort of deceit • Examples of deceit are: • A salesperson assures you a house basement is always dry, but in fact knows that it had once flooded; you can sue the salesperson for flood damage or preventative repairs • You buy a stock because its promoter deliberately misrepresents an ore assay supposedly showing huge amounts of gold; he's eventually prosecuted by the Crown, but in the meantime you're stuck with 10, 000 worthless shares of Glitter Grab Mining Co.

Strict Liability • People who are responsible for extremely dangerous things or activities are liable for any resulting damage • Such situations are considered so obviously dangerous that there is no excuse for allowing an accident • Even if those responsible do not act negligently by normal standards, or do not intend to cause harm, they are strictly liable • Examples of strict liability are: • The owner of a pet cheetah is liable if the cheetah bites a child • A gas company is liable when gas escapes from a leaky main into a building and explodes • A farmer is liable when a pesticide spill ruins a salmon stream

Purpose of Tort Law

Crimes: Society-Initiated Justice • Crimes and certain other serious offences are violations of general 'thou shalt not' laws designed to protect everyone's safety and property • Society considers criminal behavior so undesirable that the emphasis is on both protection and deterrence • The focus of criminal law is to punish the criminal, not to compensate the victim

Torts: Victim-Initiated Justice • Torts are also violations of an individual's right to peace or property, but are considered to be a less serious threat to public safety than crimes • Think of tort law as primarily a remedy for a unique wrong • Prevention may be a result (if you know someone can sue you, you're less likely to do wrong) but it's secondary to compensation

Other Victim-Initiated Justice • Torts are not the only kind of civil law dispute between individuals • Contract and marriage disagreements are civil cases that often involve charges of wrongdoing and claims for financial redress

Contract Disputes • A tort is based on society's general standards of fair and reasonable conduct • However, people who sign a contract have made their own agreement about what each should do or not do • It's a unique description of what the signatories define as right and wrong for their particular situation

Marriage Disputes • Marriage, property, and other civil disputes are covered by specific statute laws and have their own legal processes

Crime or Tort? Both?

Parental Liability Laws • Parents have long been subject to laws such as contributing to the delinquency of a minor and providing dependent children with the necessities of life, including a suitable home environment • Most recently, North American parents have been subject to increased civil and criminal liability for their children's actions • Parental liability laws generally aim to involve parents in their children's lives, encourage improved parental control over children, and decrease youth crime • However, parental liability laws can cause more harm than good

Parental Liability Laws In Canada • Generally, there is a reluctance on the part of courts to hold one person liable to compensate a third party unless that person has done something to breach a duty to the third party • There are, however, areas of tort law where vicarious liability of parents can be found • The plaintiff must persuade the court that the parents knew or reasonably ought to have known that the young person would commit the act in question

MB Parental Responsibility Act • This legislation allows the victims of youth crime in Manitoba to recover damages from parents whose children (up to 18 years of age) have been involved in deliberately taking, damaging or destroying property • Victims who wish to obtain damages from these parents must file a claim in Small Claims Court • The Act does not apply to children who are wards of child and family service agencies https: //www. gov. mb. ca/justice/safe/parental. html Matt Foley

Review- Tort or Crime

Differences Between Torts and Crimes

Remedies: Damages and Relief • So you've been wronged by a tort. What kind of compensation or relief can you expect? • There are five basic types of remedies: • compensatory damages—compensation for actual and future financial losses, and for emotional or physical suffering • special damages are for actual out-of-pocket losses • general damages are based on an estimated value of other losses, pain, and suffering • punitive damages—a penalty charged the wrongdoer, sometimes called exemplary damages (to make an example of someone and discourage similar behaviour in the future) • nominal damages—a token such as $1 to symbolize victory in a case where there was little actual damage • costs—certain legal and court fees that are expenses of the case; these are usually awarded, in whole or in part, to the winner • injunction—the court orders the defendant to stop doing something that is or may become injurious, or to do something that helps to correct or prevent the wrong

Injuries and Damages • As you've seen earlier, the word "injuries" in tort law means all the forms of harm or loss a victim suffers • It's not just physical injury, but can also include financial losses, pain, and mental suffering • The word "damages" also has a special meaning in tort law • Damages are the monetary value the court awards • Ex: If your car suffers damage, that's a form of injury • Money awarded to repair it is damages

Compensatory Damages

Punitive Damages

Punitive Damages

Examples of Injunctions • Pickets at a factory gate must be limited to a certain number so they cannot blockade the entry • A concert promoter's advertisements must stop using artwork similar to a popular musical's registered trademark • Environmental activists must refrain from interfering with loggers using a forest access road • A logging company must stop building a road that may harm a salmon stream • A publisher of an allegedly libelous book not distribute it to bookstores until the libel suit is settled • Anti-abortion demonstrators not harass or photograph clients arriving at a private clinic • A homeowner relocate a new fence that trespasses on the neighbour's property

The Role of Insurance • What would happen if you were ordered to pay several million dollars in damages? • You'd probably lose almost everything you owned and would have to declare bankruptcy • The victims wouldn't get all the damages they deserved (collecting damages is not as easy as awarding them) • That's why car owners, property owners, doctors, engineers, business owners, school boards, and almost anyone you can think of has some form of liability insurance • It protects them and it protects the victim • The insurance adjustment process also can help settle most cases out of court, which is often faster, less expensive, and less troublesome for everyone

Is It a Tort? Why? Find a Partner and Discuss 1. A young man, driving his older brother's car, runs a red light and collides with a rented pickup truck proceeding on a green light. Both vehicles are damaged and both drivers are hurt 2. A guest arriving at a house slips on an unlit, unshovelled, unsanded icy sidewalk. She breaks a leg and is unable to work for two months 3. A hockey player, remaining on the bench during a mid-game brawl, is speared in the eye by an opponent's stick and suffers permanently damaged vision, ruining his career. 4. To get unauthorized photos of a film star's wedding on her private estate, a photographer uses super-telephoto lenses and rents a helicopter to fly overhead. Later he climbs over a locked gate to sneak into the estate grounds. 5. Environmental activists blockade a forest road to prevent a logging company from cutting old-growth trees in its timber licence area 6. A neighbour's dog repeatedly finds a way to get through the fencing of a farmer's field and kill sheep.

Negligence, Intentional, Strict Liability, or Other? 1. Loudly talking to friends in a school corridor, a student blames her atrocious new haircut on a certain hairdresser. In fact, the girl got exactly the style she asked for but afterwards didn't like it. Word gets around and people stay away from the hairdresser. 2. A newspaper advertisement says, "Joan Superstar drives a Guzzler Land Yacht BX 1000. Why don't you? " A photo shows Superstar driving down a public road in a convertible Guzzler Land Yacht BX 1000. Joan was not asked if they could use her name or photo. 3. While cleaning the bathroom, a man mixes a household cleanser containing bleach with a toilet bowl cleaner containing acid and ammonia. The resulting chemical reaction releases chlorine gas, causing him lung damage. Neither container has clear hazard warnings. 4. A student is injured during physical education class while trying flips on a trampoline, unsupervised and without a spotter. 5. A mail carrier falls through the rotten front stair board of a private house, breaking her leg.

Negligence, Intentional, Strict Liability, or Other? 6. After a bar argument, one person goes into the washroom; the other person angrily blocks the door so the first one can't get out. 7. Children steal blasting caps from a contractor's locked trailer and seriously injure themselves and a passerby. 8. A night guard orders youths partying in a parking lot to leave. As they go, one makes insulting remarks about the guard's sexual preferences. The angry guard grabs the youth in a martial arts hold and threatens to break his wrist and arm. 9. Trees on a neighbour's land have grown so much that they are now blocking a priceless view, so a property owner takes a chainsaw and cuts off the treetops. 10. Teens gather on the sidewalk outside a favourite hamburger restaurant in such large numbers that other pedestrians are unwilling to enter.

Unintentional Torts Part 1

The Changing Tort of Negligence • The most common type of tort is negligence and it is the fastest growing and most dramatic area of tort law • In fact today, most tort actions today involve negligence, sometimes for huge amounts of money • However, historically, tort law concerned itself with injuries caused by intentional acts • One obvious reason for the larger number of negligence suits is the many exciting new ways we've invented to accidentally injure each other: • airplanes, electricity, chemicals, pharmaceuticals, heavy machinery, complex consumer goods, and especially cars • It was a lot harder to die in a horse and buggy

Evolving Values • Another reason for the growth in negligence cases is that society's standards of reasonable behavior are much stricter today • Courts of the 1800 s would not even have considered most of the negligence claims accepted by modern courts • The following case had to be tried under contract law

Causation • Did the defendant's negligence cause an injury? • The court will apply two tests. 1. Was there a direct cause in fact? (Did the injury result only because of the defendant's behaviour? ) 2. Could the likelihood of the injury be foreseen by a reasonable person? • In deciding causation, courts use the balance of probability test: • if the defendant had behaved differently, would the injury probably not have happened? • The situation can't be recreated and tested, but it seems likely

A Reasonable Person • You're not responsible for so-called acts of God: events that are unforeseeable and beyond your control, such as lightning, earthquakes, floods, or a rutting moose • It's important to understand that as a reasonable person, what you should foresee is the possibility of injury, the potential danger in each situation. • If you're approaching a blind curve, you should foresee that another vehicle might be coming towards you, out of sight. You can't actually know it's there, but you should know it's a possibility • A reasonable person expects the unexpected and leaves a margin of safety

There’s Always An Exeption…. • There is an exception to the foreseeability test, called the thin skull rule • If a victim has an unusual weakness, such as an eggshell skull or other vulnerability, the defendant is liable for the resulting injuries even though they were unforeseeable • Not knowing, is no defense

To Foresee, Or Not To Foresee…. • OK, what's reasonable not to foresee? • Ex: Bars have been found to have a duty of care to protect their patrons from the consequences of excessive drinking

• Police can be sued like anyone else if they fail to carry out a duty of care owed to the public

Failure to Supervise • Parents and teachers have a duty of care and control to supervise children in their care • This is both to protect the child and to protect the public from the child • The younger the child is, the higher the expected standard of supervision • This concept is sometimes applied to others who exercise care and control, such as mental hospital staff or prison 'guards

Special Situation: Going (or Not) to the Rescue • You have a duty of care not to put someone at risk, but what if they're already in peril? • Do you have a duty of care to rescue them? • Yes, if you've caused their situation • Otherwise, probably not; members of the public do not have a legal duty under negligence law to go to someone's aid unless employed to do so (such as a firefighter) • If a person suffers while trying to help a negligence victim, is the rescuer also a victim of the negligence? • Yes, if the rescue attempt has a reasonable chance of success and is not reckless or rash • Ex: A high-school student tried to help two non-swimming friends who were swept into deep water during a school field trip She rescued one, but drowned while trying to save the second. The judge found the trip supervisor liable for the deaths of both the nonswimmer and her would-be rescuer

Good Samaritan Act • You've heard stories of doctors afraid to stop at an accident scene because victims have sometimes sued rescuers for medical negligence • Sadly, this has at times happened • In order to encourage medically trained people to help in emergencies, some provinces have passed a law called The Good Samaritan Act • It doesn't require a doctor, nurse, or anyone else to help, but it does protect volunteer rescuers from becoming the target of their patient's negligence suits unless they are grossly negligent Grossly Negligent? Good Samaritans

Unintentional Torts Part 2

Defenses to Negligence • How could you defend yourself against a negligence claim? • You'll remember that the court looks for proof of four elements: • • Actual injury Causation Duty of care Standard of care

Defenses to Negligence • Failure to prove any one of these four means the plaintiff has not proved the case and the defendant is not liable • But even if all four elements are proved, the defendant may present two further defences: • Voluntary assumption of risk—The plaintiff knew and voluntarily accepted the nature and degree of risk involved • Contributory negligence—The plaintiff also was negligent and was wholly or partly responsible for his/her own injuries

Voluntary Assumption of Risk • If you voluntarily agree to be exposed to a foreseeable risk (not a surprise), you accept the liability • You don't act voluntarily if you're forced to act out of necessity because of someone else's negligence

Contributory Negligence • If the plaintiff's injuries are found to have resulted in part from the plaintiff's own negligence, or failure to reduce (mitigate) the injuries, the court will divide the liability and damages • Ex: If a plaintiff is found to be 70% liable for his own injuries, the defendant is only liable for the other 30% • If the plaintiff suffered $1000 worth of injuries, they would receive $300

No Proof Required • There are some types of situations where proving negligent behaviour is not necessary • However it's still necessary to prove injury and cause

Res Ipsa Loquitur—The Act Speaks for Itself • In cases of Res Ipsa Loquitur, the mere fact that the accident happened is proof of negligence • It applies when the cause of the accident is: • Under the control of the defendant • Unexplained, so that negligence is the only reasonable explanation

Vicarious Liability • Vicarious liability means being legally responsible for another person's behaviour. • Typical examples are: • An owner who lends someone a car is liable for the borrower'snegligence; this is statute law under The Motor Vehicle Act • A person (called a principal) who engages an independent person (an agent) to act on her behalf is liable for the agent's actions within the agent's authority • An employer is liable for an employee's negligence within the scope of the employee's employment • Parents who fail to adequately supervise a child known to light fires may be liable for fire damages the child causes

Principal and Agent • You would be the principal in a principal/agent relationship if you hired the services of a subcontractor such as a construction company, a sales agent, a private detective, an engineer, or a maintenance firm; • They aren't your employees, but you can be held liable for their actions

Employer and Employee • While an employer likely would not want their employees to be negligent on the job, however, the employer is responsible if they are negligent • Does that sound fair? • Many service companies require that customers sign standard contracts that limit the company's liability to a set amount • Their employees' liability is usually left unlimited and uninsured • Now, does that sound fair?

Parent and Child • Minors are legally responsible for torts and can be sued, although children may not be expected to provide the same standard of care as an adult • Vicarious responsibility of parents is based on the principle that they are negligent if they fail to adequately supervise a child known to behave in a dangerous way

How About Manufacturers and Retailers? • Courts have subsequently held manufacturers responsible for injuries resulting from products that are inadequately designed, badly assembled, or not accompanied by clear instructions and hazard warnings • Distributors of products, such as retailers, may also become responsible if they allow product quality to deteriorate, offer their own advice to the consumer, or sell dangerous goods to children

Professional Liability • If consumers can be protected from faulty products, it follows that they can be protected from faulty services • A higher standard of care is expected from a person who has special knowledge or skills • This principle can apply to professionals such as engineers or accountants, to tradesmen such as mechanics and plumbers, or to anyone with training or certification such as pesticide applicators or propane handlers • Doctors have long been high-risk professionals as a result of the many difficult and life-critical decisions they make daily • They must carry expensive medical malpractice insurance in order to practice • Lawyers can also be sued for negligent professional conduct

Trespassers • A trespasser is someone who enters another person's property without permission, either intentionally or not • The occupier does not owe any duty of care to warn unseen trespassers about hazards • However, once the occupier is aware of the trespasser, he must warn him of unusual dangers • If the occupier does not tell the trespasser to leave, that may be considered as giving permission to stay with the rights of a guest • Occupiers should be careful to clearly establish who is allowed on their property and who is not • Additionally, an attractive nuisance or allurement is something on a property that may attract a child to trespass • Swimming pools, • Trampolines • Play structures • An occupier is expected to securely fence and lock such attractions to keep a young child from entering • Warning signs are not considered adequate since young children might not be able to read

Some Real Life Examples • A bird's nest on a hydro pole; a boy climbed the pole and suffered burns and electric shock • A taxi door lock; a five-year-old played with it and fell out • Poisonous berries in a botanical garden; a seven-year-old ate some

Intentional Torts

Wrongs to a Person • As we have seen, Intentional torts may affect your person, your property, or your reputation • A store detective suggests you accompany her to the security office. Do you have to go? • You're walking across a field and the owner appears, pointing a gun and telling you to leave. Have you been wronged? • A workmate tells the boss untruths and you lose your job. Can you sue to recover lost wages? • An intentional tort is an act that is deliberately or recklesslyharmful

Defence to Intentional Torts • First, the plaintiff must prove all the necessary elements of a tort • If the plaintiff doesn't do so, the action fails • Even if all the necessary elements of a tort are proven, however, the defendant can still claim defences appropriate to the case

Six Defences • There are six kinds of defence available to someone being sued for various intentional torts. 1. consent—The victim voluntarily agreed to the action and can't now take action against it 2. self-defence and defence of third party—Reasonable force may be used to protect yourself or another person from attack 3. defence of property—Reasonable force may be used to defend property under your care

Six Defences 4. necessity—The action was necessary to avoid an even greater wrong 5. legal authority—Individuals and organizations are authorized by statute law to do things, for the benefit of society, which would otherwise not be permitted 6. prescription—A nuisance which has persisted for 20 years without complaint becomes legalized

Consent • Harry the Hermit sued Wanda for walking along his section of a beachfront • "But there were no fences, markers, or signs saying I couldn't walk there, " testified Wanda, "and he didn't say anything when I waved. He just stared at me. " Her defence? • Consent

Necessity