Lesson 1: Introduction to Civil Law

Assessment

Pre–Activity

Handout 2: What Do You Know About Civil Law? Can be submitted for marking or marked as a class.

Answer Key: Handout 2: What do you know about Civil Law?

  1. What are civil laws?
    Laws that are not criminal or quasi-criminal.
  2. What do civil cases involve?
    Private disputes between two or more individuals or groups.
  3. Do civil cases always affect the whole of society negatively?
    No, they deal with disputes between parties. Protection of society is not an overriding issue as it is in criminal law.
  4. List four types of civil disputes.
    Contract disputes, divorces, custody disputes, personal injury, contested wills or estates.
  5. What does the court call the person who is suing? and defending?
    Plaintiff, Defendant

Write "True" or "False" on the line provided.

  1. FALSE : A civil case starts when one person files a complaint with the court. That person is called the defendant.
  2. TRUE: The case would be written as Plaintiff (Jones) versus Defendant (Smith).
  3. TRUE : The burden of proof in a civil case is on the balance of probabilities, which means that it is more probable that one side is right.
  4. FALSE : The penalty in a civil case is imprisonment rather than a monetary in the form of damages.
  5. TRUE : Claims of $10,000 or less are heard in Small Claims Court.
  6. How many jurors sit on a civil jury?
    8
  7. Do all the members of a civil jury have to make the same decision? Explain.
    No, as long as three-quarters or six out of eight agree after at least three hours of deliberation.
  8. Name two courts that deal with civil cases.
    The Provincial Court (Small Claims Division and Family Division), the Supreme Court, and the Court of Appeal.

Activity 1: Examining a Civil Case

It is not necessary to give marks for this activity. You may choose, however to give students participation marks for their contribution in answering the questions on Handout 3: Examining a Civil Contract.

Activity 2: Comparing Civil Law to Criminal Law

Once students have completed the handouts, they can turn them in for marking. The answer keys to Handout 5: Civil or Criminal? You Decide! and Handout 6: Civil and Criminal: Review are below.

Answer Key: Handout 5: Civil or Criminal? You Decide!

  1. Peter Rabbit stole carrots from Mr. McGregor’s garden.
    Criminal/Theft Civil/Conversion
  2. The Queen gave Snow White a poisonous apple that she knew was poisonous.
    Criminal/Attempted Murder Civil/Battery
  3. The bean seller sold Jack seeds that the seller knew would not produce beans.
    Criminal/Fraud Civil/Breach of Contract
  4. Papa Bear and Mama Bear no longer wanted to be married.
    Civil/Divorce
  5. The second little pig didn’t complete building the other pig’s house as he said he would.
    Civil/Breach of Contract
  6. Humpty Dumpty fell off the wall that the Queen’s men built because it collapsed.
    Civil/Personal Injury
  7. Cat Woman scratched Batman with her claws.
    Criminal/Assault Civil/Personal Injury
  8. Goldilocks broke Baby Bear’s chair.
    Criminal/Mischief Civil/Damages
  9. Give three examples of each type of case. Answers Vary
    Criminal Robbery Break and Enter Murder
    Civil Libel or Slander Negligence Custody

Answer Key: Handout 6: Civil and Criminal Law: Review

  1. What is the definition of a “criminal case”?
    A case where a person is accused of breaking one of our criminal laws.
  1. What is the definition of a "civil case"?
    A case where individuals or parties have a dispute and cannot come to an agreement.
  1. Who approves the charge in a criminal case?
    Crown counsel
  1. Who starts the proceedings in a civil case?
    The plaintiff
  1. How many jury members are there in a criminal trial?
    Twelve
  1. How many jury members are there in a civil trial?
    Eight
  1. What is the difference between proof "beyond a reasonable doubt" and proof "on a balance of probabilities"?
    The first means that there is no reasonable doubt that the accused committed the crime. The latter means that it is more likely that one version of the events is more probable or true than the other.
  1. Identify these cases as civil or criminal. Write your answer next to each case.
    1. Criminal
    2. Civil
    3. Civil
    4. Criminal
    5. Criminal
    6. Civil

Match these criminal offences with their civil counterpart.

Criminal Answer Civil
a) Assault 4 1) Conversion
b) Theft 1 2) Battery
c) Attempted murder 2 3) Breach of contract
d) Mischief 6 4) Personal injury
e) Fraud 3 5) Personal injury
f) Criminal negligence 5 6) Damages

Activity 3: Introduction to Alternatives to Civil Court

Handout 8: Alternatives to Civil Court Questions can be discussed and marked as a class or be taken in for marks. The answer key is below.

Answer Key: Handout 8: Alternatives to Civil Court Questions           

  1. What does Alternative Dispute Resolution mean?
    It means alternatives for going to court or finding other ways to work out a disagreement.
  1. Why would it be important to have alternatives to the civil court system?
    Alternatives can provide a wider range of potential positive results especially where there are on-going relationships among neighbours, family and community. Some people believe that having alternatives helps everyone and brings down the costs of court time and court personnel. It also will not take as much time to resolve if it goes through an alternative. It takes years to get through a court issue.
  1. Describe negotiation, mediation and arbitration.
    Negotiation: Occurs when you compromise and reach an agreement with another party. You both work to make the situation fit both of your interests so it is a win/win situation. It is a good idea to sign an agreement stating that the negotiations are “without prejudice”, meaning that anything you discuss will not be used against you if you do decide to go to court.

    Mediation: Occurs when two people who are in a dispute agree to call in a third person, who is neutral and impartial, to help resolve their dispute. The mediator manages the process, organizes how the discussions should go, promotes understanding and diffuses tension so that both parties are working to solve the problem. The mediator cannot make a decision or force the two sides to accept a solution.

    Arbitration: Is something you would turn to if you are really having difficulty resolving your dispute. It is more formal than mediation but less formal than court. If the two people with the dispute choose, they can have a neutral party or panel, decide how the dispute should be resolved. The two parties decide beforehand how the process should unfold and what the arbitrator should rule on. You both present your case and then the arbitrator makes a decision. The arbitrator is usually an expert in the field he or she is hearing and this works well for business disputes. It is a good idea to decide before you go through arbitration whether or not you will be able to go to court after the arbitrator has made their decision.

  1. Of the three options available to you, which one would you most likely use? Explain your answer.
    Answers will vary.

Activity 4: Speaker’s Corner

Handout 9: Speaker’s Corner can be taken in for marks. The answer key is below.    

Answer Key: Handout 9: Speaker’s Corner

Your students should be covering similar points for each scenario in their speeches. These common points are below.

Mediation

  • Cheaper than litigation.
  • Faster than litigation. It could take up to a year or more just to get to court and the trial could take months, depending on the experts involved.
  • Having someone to help in a dispute but in a less formal and intimidating way.
  • Can always go to court if the mediation fails.

Collaborative Law

  • Cheaper and faster than litigation.
  • Each side has legal advice and advocacy at all times during the process.
  • Even if one side or the other lacks negotiating skill or financial understanding or is emotionally upset or angry, the playing field is leveled by the presence of the skilled advocates.
  •  It is the job of the lawyers to work with their own clients and if the clients are being unreasonable, to make sure that the process stays positive and productive.
  •  Less worry about “mediator bias”.
  • If there is an issue that cannot be resolved this way, it can be submitted to the court for determination without having the court decide on the whole divorce.

Litigation

  • Provides for a completely independent adjudication.
  • A trial provides certainty and closure for the parties.
  • Judge will consider what similar previous cases have decided and come to a reasonable decision based on the individual circumstances.
  • Judge’s decision is final.

Specific points for each scenario are outlined below each scenario.

Speaker’s Corner Scenarios

  1. Mediation: Faster if mediator can get the parties to negotiate over the property and custody (get out of the media spotlight and reduces the media attention on the child). The couple will not have to go through the time and expense of a trial and can get on with their lives and jobs.

    Collaborative Law: A positive outcome will give less fuel to media and will help maintain a positive relationship during custody.

    Litigation: The judge’s decision is final, which may be useful when it comes to getting the parties to stick to the terms of the custody order. Judge will consider the best interests of the child.

  1. Mediation: Cheaper as the farmer may not have financial means to go to court. Faster if mediator can get the parties to negotiate over the responsibility and compensation in order to minimize the bad publicity for gas station as well as allow the farmer to start the clean-up and spend more time farming than in court. It could take up to a year or more just to get to court and then there will be the trial, which could take months, depending on the experts involved, and calculating how much damage the farmer has suffered.

    Collaborative Law: Faster than litigation, so farmer can get on with clean-up and his business. A positive outcome will help maintain a positive relationship for the future, as these two parties may be stuck with each other for a long time.

    Litigation: A judgment in favour of the farmer could send a message to other gas stations that they have to be more careful in their operations.

  1. Mediation: Owners may not have financial means to go to court. Minimizes the bad publicity for the builder and the owners can get on with clean-up. It could take up to a year or more just to get to court, and then there will be the trial, which could take months, depending on the experts involved and how many owners there are, as well as figuring out how much damage each owner has suffered. Also, if the builder has used this product on other buildings, there may be other lawsuits- by the time this case gets to court, the builder may go bankrupt.

    Collaborative Law: Faster than litigation, so owners can get on with repair and their lives.

    Litigation: If the judge finds the builder’s conduct to be especially bad, the judge can award extra money to the owners. The owners might want to go to court so that the issue can get aired out in public and other condo owners as well as the general public are aware of the leaky condo problem. A judgment in favour of the owners could send a message to other builders that they have to be more careful in their operations.

  1. Mediation: The City is not likely to recover the costs of the damaged property nor of the lawsuit if they sue the youth in Tort since the youth likely will not have the money to pay. Then the parties can get on with clean-up and restoration rather than wasting time in court and waiting for court. Mediation also affords a wide range of remedies, which could include the youth going out in the community to educate other youth about the value of the building and the negative consequences of committing crime.

    Collaborative Law: Focus is on a positive, cooperative, successful process that models good relationships for youth.

    Litigation: If the judge finds the youths’ conduct to be especially bad, the judge can award extra money to the City. Depending on the circumstances, the formality of the court’s processes and decision might be needed to provide the necessary deterrent for these youth.

  1. Mediation: Mediation also affords a wide range of remedies, which could include having a “gentleman’s agreement” in place until a court or the Land Registry can make a conclusive determination. Time is of the essence for the farmers’ plantings and they likely will not want to sacrifice a year’s worth of planting waiting for the courts.

    Collaborative Law: Since these parties will likely have to put up with each other in the future for quite some time, fostering a good relationship here and now will set the tone for future dealings.

    Litigation: A definitive pronouncement from the court about the boundaries may be necessary and desirable “for the record” and in case either of the parties wants to sell or transfer the land to someone else, who will want to know exactly what they are getting.

  1. Mediation: Model may not have financial means to go to court and it minimizes the bad publicity for the donut shop and the parties can get on with business rather than court. Wider range of solutions available compared to litigation, such as an apology for the derogatory remark.

    Collaborative Law: Sends less of a message of opportunism on the model’s part. Faster than litigation, so parties can get on with their lives.

    Litigation: If the judge finds the donut shop’s conduct to be especially bad, the judge can award extra money to the model. A judgment in favour of the model could send a message to other restaurants that they have to be more careful in their operations. The public nature of the court proceedings could also give the model more media attention, which could help his career.

  1. Mediation: Seniors may not have financial means to go to court and it minimizes the bad publicity for the company.

    Collaborative Law: Since the company has not had prior violations of this nature, adhering to a positive process may help maintain its reputation. Often times, it is the negative energy involved in protracted litigation that takes the real toll on the parties. A collaborative process would allow the seniors to resolve the problem but in a less negatively-charged atmosphere.

    Litigation: A judgment in favour of the seniors could send a message to other companies that they have to be more careful in their operations and also could provide the motivation for legislative and policy changes as to how these companies are regulated and monitored.

  1. Mediation: Cheaper and faster if mediator can get the parties to negotiate over the injury and responsibility. They will get out of the media spotlight and reduce the amount of time the singer will have to spend with her ex so both parties can get on with their lives and jobs. A wider range of remedies is possible – the singer may be able to get her ex to give written consent that he will stay away from her and the ex might be able to get the singer to make a public apology over the untrue claims she made.

    Collaborative Law: A positive outcome will give less fuel to media and will help the situation and negative feelings to deteriorate any further. A similarly wide range of remedies to mediation exists.

    Litigation: A court decision might be seen by the parties to have more “legitimacy”. If a restraining order against the ex-boyfriend is necessary or desirable, this will have to take place in a civil court anyways. If the ex-boyfriend is more concerned with clearing his name in public over the allegations of unfaithfulness, he may want to pursue court proceedings, although the trade-off may be the consequences for the pit bull attack.

  1. Mediation: If the mayor is willing to comply with the law, going to court may be an unnecessary expense and it minimizes the bad publicity for mayor.

    Collaborative Law: Faster than litigation, so mayor can get on with compliance and renovations. A positive outcome may be better in terms of public image – to have internal conflicts of this kind may be embarrassing.

    Litigation: A trial may be a way to affirm the rule of law, by ensuring the mayor does not receive special treatment by way of his public office.

  1. Mediation: The man may not have the financial means to go to court. A mediator can get the parties to negotiate over the interpretation and compensation which will be cheaper and faster.

    Collaborative Law: Cheaper and faster than litigation, so the man can get on with his life.

    Litigation: A trial provides certainty and closure for the parties. Judge will come to a reasonable decision based on the individual circumstances. An official pronouncement from the court will set a precedent for future cases of this kind, as well as others where a similar provision is sought to be interpret.

Activity 5: Watching the Paisley Snail

Handout 12: Questions on the Paisley Snail, which is a homework assignment to complete after watching the video, can be submitted for marks. The answer key to these questions is below.

Answer Key: Handout 12: Questions on the Paisley Snail

  1. Mrs. Donoghue did not have a contract with Mr. Minghella. Mrs. Donoghue’s friend brought the ginger beer so the friend was the one who had the contract.
  1. There was nothing that the café did or failed to do that could be considered negligent. The ginger beer came in a sealed bottle from the manufacturer with the intention that it be delivered in the state to the consumer and that it be opened just prior to delivery. Also, the bottle was opaque, so the café owner was prevented from inspecting the contents prior to delivery to the consumer.
  1. Assuming that Mrs. Donoghue ‘s claim today would be for more than $10,000, then in British Columbia , she would go from the Supreme Court to the Court of Appeal for British Columbia and finally to the Supreme Court of Canada.
  1. No. From the very beginning, Stevenson had raised the legal argument that Mrs. Donoghue has no cause of action against him. The House of Lords decision in effect said the Mrs. Donoghue did have a cause of action against Mr. Stevenson and that she would be entitled to damages if she proved the facts of her case at trial. Shortly after the House of Lords decision, Mr. Stevenson died and the executors of his estate decided to settle the case rather than fight it in court. The settlement is said to have been for £200.
  1. We do not know whether Stevenson was negligent or not. The House of Lords was not concerned with that aspect of the case in their decision. Negligence would have been one of the elements that Mrs. Donoghue would have had to prove at trial.
  1. The friend probably would only have recovered the price of the defective ginger beer. Her only claim would have been that the café owner sold her a drink that was not fit for consumption: a breach of the implied promise contained in their oral contract that the ginger beer would be drinkable. Since the friends did not drink any of the ginger beer and become ill, she did not suffer any other loss.
  1. Prior to the decision in Donoghue vs. Stevenson, the legal concept of who our neighbours were was confined to physical of geographic closeness. Lord Atkin said that closeness or proximity should not be thought of strictly in a physical sense but more in a mental sense. He stated that: (My neighbours are) … persons who are so closely and directly affected by y act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
  1. In forma pauperis is a Latin term meaning, literally, “in the form of a poor person.” A litigant (a person suing or being sued in court), allowed to proceed in forum pauperis is not liable to pay court costs. In Canada, legal assistance is often available to people who cannot afford lawyers for serious criminal charges and for some family law. Contact the Legal Services Society for more information or for eligibility requirements.
  1. In England, barristers only do court work and are trained only to do that. They do not have “clients” in the same sense that court lawyers do in Canada. Rather, barristers accept “briefs” or cases from solicitors. The solicitors do all of the investigating and interviewing work and the paper-work for the case.
  1. The barrister’s sole job is to argue the case in court. Solicitors practice in areas of the law other than in court; for example, real estate, tax, company law, wills, or estates. Lawyers in Canada are generally licensed as both barristers and solicitors. While some lawyers do practice as both, most choose to specialize in either barrister’s or solicitor’s work. In Scotland barristers are called “advocates”.

Activity 6: The Paisley Snail – Discussion

Since this activity is a discussion, marking is not required. You may, however, choose to grant participation marks to students for their contribution to the discussion.

Answer Key: Discussion Questions: The Paisley Snail

  1. Why has the concept of “neighbour” following Donoghue vs. Stevenson changed the law of negligence so much?
    By broadening the concept of “neighbour” to include people whom we should have in mind when we start an activity, the number of potential plaintiff and the number and types of potentially harmful activities expand enormously. For example, we can all imagine doing financial harm to someone across the country simply imaging that the physical harm we do to one person’s property may have a severe financial effect on another person.
  1. Do you have to have a contract or some other special relationship with someone to sue them for negligence under the law of tort?
    You do not need a contract. That issue was settled once and for all in Donoghue vs. Stevenson. The only relationship that is necessary is that of being a neighbor as described by Lord Atkin.
  1. What is the difference between “pure economic loss” and a loss resulting from personal injury or property damage? After all, both types of loss are compensated for in terms of money.
    A pure economic loss is a financial loss or a reduction in the value of his property suffered by a plaintiff but not incurred as a result of personal injury to him or physical damage done to his property. Some examples are:
  • An investor relies upon the negligent advice of a financial adviser, invests in the stock market and loses money when the company he invested in goes bankrupt.
  • A railway which uses but does not own a bridge is put on additional expense to reroute traffic when the bridge is damaged and temporarily put out of service by the negligence of a tug-boat operator.
  • A company loses business (and therefore money) when it is forced to repair defective equipment during the busiest part of the year. The manufacturer knew the equipment was defective a long time before the plaintiff found out and the manufacturer was negligent in not warning the equipment user.