Term
Jurisdiction of Small Claims Court
1) up to $50,000 claims
2) Abandonment of excess claim over $50,000
Which matters are excluded from small claims court? |
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Definition
| Title to land / validity of wills / tort actions/ breach of promise of marriage / false imprisonment |
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Term
| Limitations periods are outlines by the Limitations Act. What is the general rule? |
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Definition
Most lawsuits must be commenced w/in 2 YEARS of DISCOVERING the claim.
&
No later than 10 YEARS from when the claim arose (ultimate period rule) |
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Term
| What are 5 exceptions to limitation periods? |
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Definition
1) Other legislation providing longer periods
2) Parties agreement to extend
3) Acknowledgement of part payment at end of limitation period, restarts limitation period
4) Fraudulent Concealment
5) Claimant "disability" |
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Term
A minor w/out custody of a parent/guardian
or a minor w/ parent/guarding but experience sexual abuse
or a functional disability
are examples of what?
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Definition
| exceptions to the limitation period due to a disability |
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Term
| Cost, Risk & Evidence should all be considered before what? |
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Definition
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Term
T/F
You can sue parties or legal names of individuals/businesses |
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Definition
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Term
Documents filed in civil action
& setting out position of parties
are referred to as? |
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Definition
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Term
| Provinicial (small court) pleadings are known as? |
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Definition
| Civil Claim or Dispute Note |
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Term
| a written statement, filed by the palintif, issued to prove that the defendant is aware of the claim, and confirmed by oath/affirmation for evidence is... |
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Definition
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Term
You may serve a civil claim by:
1) Personal Service
2) Registered mail
3) Obtain court order for service
or
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Definition
4) Leave at residence w/ person apparently 16 yrs. or older
**WAIT 20 DAYS (in Alberta, 30 outside) |
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Term
(T/F)
If defendant does not reply to dispute note, plaintiff can apply for a "default judgement" or "note in default" |
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Definition
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Term
If Defendent replied, matter dealt with in 1 of 3 ways:
1) Mediation (parties & court mediators)
2) Pre-trial conference
3) ... |
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Definition
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Term
| When parties meet w/ mediators to facilitate communication (can be exempt from mediation is they apply to court) process used was? |
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Definition
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Term
| If parties meet w/ a judge to discuss case, which method was used? |
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Definition
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Term
| If parties have evidence, witnesses, documents, photographs & hearsay, they are likely using which method? |
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Definition
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Term
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Definition
Second-hand evidence (ex. he said she said)
Not likely to be accepted by court |
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Term
Witnesses receive a notice to attend 21 days before trial, endure a witness fee, have an affidavit of notice to attend and undergo "exclusion of witness" until it is their turn to testify.
What are witnesses exempt from? |
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Definition
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Term
(T/F)
Defendent delivers statement first in small claims court |
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Definition
FALSE
Plaintiff starts and has burden of proof,
Plaintiff explains case first |
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Term
| what 3 processes do witnesses endure? |
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Definition
1) Direct examination (no leading q's)
2) Cross-examination (leading q's, to bring out inconsistancies)
3) Re-examination (purpose is for witnesses to elaborate) |
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Term
(T/F)
After summation, judge delivers decision immediately |
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Definition
FALSE
Judge may reserve their decision until later.
** Given orally or in writing |
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Term
After the trial, a clerk send a Certificate of Judgement to all parties.
The defendent can choose to... |
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Definition
Pay or Appeal
** Appeals to Court of Queen's Bench w/in 30 days |
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Term
| If judgement is not paid or appealed, what may happen? |
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Definition
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Term
| What are the two types of Enforcement Proceedings? |
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Definition
1) Seizure
2) Garnishment |
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Term
| What steps should be taken after judgement? |
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Definition
1) File judgement w/ clerk of Court of Queen's Bench
2) File Writ of Enforcement w/ clerk and at Personal Property Registry
3) File write of enforcement against debtor at Land Titles Office
4) Status Report filed at PPR updates every 2 yrs.
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Term
| Which ways can you determine assets/income of enforcement debtor? |
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Definition
1) Statutory Declaration (w/out court order)
2) Questioning person to assist in enforcement |
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Term
| Selling of assets by the Civil Enforcement Agency w/ a notice of seizure of personal assets is which collection type? |
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Definition
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Term
| Intercepting money owed to enforcement debtor by third party, by an enforcement creditor, done with a garnishee summons & affidavit (excluding bank accounts) distributed by the Clerk of the Court of Queens Bench is which collection method? |
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Definition
Garnishment
Essentially, taking money from their paycheck. |
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Term
| Who has priority in distribution of enforcement proceeds? |
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Definition
Instructing creditor
(first $2000)
remaining funds go divided "pro-rata"
then, excess monies go to debtor |
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Term
The Bay example. $8000 paid to enforcement agency. Bay is instructing creditor, has costs of $1000.
Is there any fund left available to debtor? |
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Definition
Bay collects $1000.
Then $2000 goes to instrusting creditor (Bay)
8000 - 3000 = 5000
$5000 back to debtor. |
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Term
| Which court has limited jurisdiction, mostly self-representation, brief pleadings, a limited settlement process, faster resolution, and is less costly? |
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Definition
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Term
| Which court has unlimited jurisdiction, involves parties' lawyers, has complex pleadings drafted by lawyers, has an important discovery phase, is costly and is a lengthy process? |
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Definition
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Term
| Which process involves an exchange of pleadings, discovery stage and an encouraging settlement/resolutinon process? |
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Definition
| The pre-trial conference process |
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Term
| Legal costs are generally awarded to whom? |
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Definition
usually the successful party
** Judge has discretion |
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Term
| What types of legal costs are there? |
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Definition
Party/Party costs
or
Solicitor/Client costs (rare) |
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Term
3-day trial costs $60,000.
Legal Costs. A sues B for $70,000.
Part/party $ = 10,000
Solicitor/Client $ = $30,000 ea
A wins case and is awarded legal costs.
What is A & B's financial position? |
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Definition
** either way, court must be paid $60,000
A: +$70,000 B: -$70,000
+$10,000 -$10,000
-$30,000 -$30,000
= $50,000 =($110,000)
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Term
| What does it mean "costs awarded" |
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Definition
The legal costs associated with party/party, essentially lawyer fees, are given back to the winning party (whether the winning party if the plaintiff or defendant)
Success is awared w/ relief of fees, basically. |
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