Term
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Definition
| A government agency created by statute to deal with specific matters covered by that statute, including the hearing of disputes, in which case it can exercise court-like (i.e. quasi-judicial) powers.. Examples in B.C. include Labour Relations Board, Workers Compensation Board, and Human Rights Tribunal.
The administrative agency created under the Labour Relations Code is the Labour Relations Board. |
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Term
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Definition
| A section in a statute that precludes the decision of an administrative agency from being reviewed by the courts. Courts will generally honour such clauses unless a party can show that the administrative agency’s decision was “patently unreasonable” or that it had breached some principle of natural justice.
Because of the privative clause in the Labour Relations Code, the employer was bound to accept the decision that the Labour Relations Board made on the matter and it could not appeal the matter to the Supreme Court of B.C. |
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Term
| Alternative dispute resolution |
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Definition
| The term given to those methods of resolving legal disputes that parties may resort to as an alternative to legal proceedings. These methods include negotiation, arbitration, or mediation. These methods have become increasingly popular in recent years with the increased costs and delay of legal proceedings.
The parties resorted to alternative dispute resolution when, instead of fighting an action in Small Claims Court, they appointed an arbitrator to handle their disagreement. |
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Term
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Definition
| The principle in administrative law that says any person dealing with administrative agencies should be afforded procedural fairness before any decision is made; this includes her having a fair opportunity to be heard at any hearing, that the hearing should be heard by the decision-maker, and that she should not be subject to real or apprehended bias on the part of the decision-maker.
The petitioner’s lawyer argued that he had been denied natural justice because the Board’s chairperson had displayed a negative attitude from the very moment the proceedings began. |
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Term
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Definition
| The process whereby the courts will review the decisions of administrative agencies. This review is limited by privative clauses that may make an agency’s decision final and by the principle of curial deference whereby courts are reluctant to review decisions in certain areas where agencies have more expertise. It is most often available when a party can show there has been a breach of natural justice, abuse of discretion, error of law on the face of the record, etc.
The petitioner made an application for judicial review after alleging that the Workers Compensation Board had failed to give him an opportunity to be heard at the hearing. |
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Term
Mediation
(also referred to as “conciliation”) |
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Definition
| The process whereby disputing parties agree to have a third party hear both sides and then make recommendations tending towards settlement. Unlike arbitration, a mediator’s recommendations are not binding upon the parties. This process is resorted to in alternative dispute resolutions and in labour disputes between employers and unions after the expiration of a collective agreement.
Before resorting to job action, the labour union and the employer agreed to mediation in the hopes that a settlement could be reached, but neither side was optimistic that mediation would avert a strike or lockout. |
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Term
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Definition
| A court to which an appeal from a trial court may, with leave, be heard. A panel of three, five, seven or nine judges will review the lower court’s decision, usually on an issue of law rather than facts.
The B.C. Court of Appeal is an appeal court; at the federal level the Federal Court of Canada: Appeal Division and the Supreme Court of Canada are appeal courts. |
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Term
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Definition
| The name of the document filed at a Supreme Court Registry that commences a civil action in B.C. It names the parties to the action and contains a brief description of the plaintiff’s claim against the defendant.
John was served with the Writ of Summons on Monday in which he is being sued for owing the plaintiff $20,000 for breach of contract. |
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Term
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Definition
| The name of a court order that prohibits a party in a legal proceeding from doing something; often it is a remedy in tort actions or for breach of contract. Failure to comply with the injunction can result in a finding of contempt of court. An injunction obtained temporarily, before the final resolution of a matter at a hearing or trial, is called an interlocutory injunction.
In her suit for trespass against the defendant, the plaintiff asked the court for an injunction that prohibited the defendant from coming onto her property at any time in the future unless with her written permission. |
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Term
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Definition
| A sum of money awarded by a court to compensate a successful party in civil proceedings. Special damages pay the actual, out-of-pocket expenses that the plaintiff has incurred; general damages are a global amount for such things as pain, suffering, loss of future earnings, etc.; and punitive (exemplary) damages are an additional amount awarded when the defendant’s conduct has been particularly outrageous.
The court awarded damages of $40,558.63 to the plaintiff in her accident for injuries in a motor vehicle accident. |
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Term
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Definition
| The execution process whereby a judgment creditor can compel a third party owing money to the judgment debtor to pay that money instead into court where it can be accessed by the judgment creditor. The third party can be the debtor’s employer or it can be (usually) a bank or credit union where the debtor has deposited money. The law recognizes garnishment even before judgment in the case of the latter.
Because the judgment debtor failed to pay the judgment awarded against her, the judgment creditor has resorted to garnishment of her bi-monthly wages at Sears. |
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Term
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Definition
| The court that first hears any contentious issue in litigation in which the parties and their witnesses provide direct testimony to one judge who then makes a decision as to the outcome based on the law and facts. In B.C. there are two trial courts: Provincial Court and Supreme Court of B.C. At the federal level, the Federal Court: Trial Division is a trial court.
In pursuing his claim for damages, Maureen had to commence her action in trial court; her lawyers advised her that unless an error in law was made in that court, it would be difficult for her to appeal the decision to a higher court. |
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Term
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Definition
| The obligation lying upon a party in legal proceedings to make his case. In most civil actions, the burden of proof lies upon the plaintiff; if the plaintiff cannot prove what he has to, the action will be dismissed. In some cases the law will put the burden of proof on the defendant (eg. when he is being sued for libel), but this is an exception to the general rule.
Because she could not show that she suffered any injuries, the plaintiff had failed to meet the burden of proof in her action against the defendant for negligence; her suit was dismissed. |
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Term
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Definition
| The name of the document filed at Supreme Court Registry that is the first document of formal pleadings in a civil action in B.C. It consists of numbered paragraphs setting out in greater detail the particulars of the plaintiff’s claim against the defendant, and ends with a prayer for the relief the plaintiff is asking the court to grant her.
In paragraph 14 of their Statement of Claim, the plaintiffs allege that the hotel underwent extensive renovations in 1997. The defendant did not deny this in its Statement of Defence. |
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Term
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Definition
| An action commenced in the courts at the initiative of a person (known as the plaintiff) against another party (known as the defendant). These actions do not directly involve the state (Her Majesty the Queen), and so they do not relate to criminal matters.
The plaintiff had to commence a civil action after she was injured in a motor vehicle accident: she instructed her lawyers to file a Writ of Summons against the driver in the Supreme Court of B.C. |
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Term
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Definition
| A legal proceeding in which numerous plaintiffs have consolidated their actions against a defendant into one court action to save time and expense.
The forty-five condominium owners have commenced a class action against the developer who constructed their building but failed to comply with the National Building Code. |
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Term
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Definition
| In a civil action in Supreme Court of B.C. the formal written allegations in numbered paragraphs that are exchanged between plaintiff and defendant with respect to the action. They commence with the plaintiff’s filing and delivering a Statement of Claim, to which the defendant will respond with a Statement of Defence and (sometimes) Counterclaim.
In paragraph 7 of his pleadings, namely his Statement of Defence, the defendant denies that he agreed to pay the plaintiff any sum of money for her services as a pianist. |
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Term
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Definition
| A party who commences a civil action in the Supreme Court of B.C. by filing and serving upon the defendant a Writ of Summons. (In Small Claims court he is referred to as the “claimant.”)
The plaintiff claims that the defendant owes her the sum of $25,000 in damages for breach of contract, and she has already pursued her action to the end of examinations for discovery. |
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Term
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Definition
| A party being sued in a civil action; in B.C. specifically, this would be a party being sued in either Small Claims Court or in the Supreme Court of B.C.
In her Statement of Claim against the defendant, the plaintiff alleged that he was negligent and she is asking for both special and general damages. |
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Term
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Definition
| That stage in a civil proceeding, after pleadings, in which the parties are allowed, under the Rules of Court, to obtain further and better particulars of each other’s case. This includes primarily discovery of documents in each party’s custody and the holding of examinations for discovery. After discovery is over, each side has a better idea of the strengths and weaknesses of himself and his opponent if the matter is to proceed further to trial.
discovery process in the civil action was limited to examinations for discovery; after that, the defendant made an offer to settle the dispute. |
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Term
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Definition
| The period of time, as stipulated either in the Limitation Act or some other specific statute, that a person has to commence an action. For most civil actions involving debt and contract claims, it is 6 years; for most tort actions it is 2 years from the time the cause of action arose.
As the man injured by the company on July 3, 1998, did not file his Writ of Summons against the company on or before July 2, 2000, the limitation period for commencing his action had expired. |
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Term
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Definition
| A party in a civil action who has succeeded in a civil action and to whom the judge has awarded a judgment in damages against the other party (judgment debtor). A judgment creditor can be either the plaintiff or defendant (by way of a counterclaim).
The judgment creditor, Mr. Jones, is now looking at what execution proceedings he can take against the judgment debtor. |
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Term
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Definition
| The name given to the legal process that can be taken by judgment creditors against judgment debtors. Depending upon the assets and financial situation of the debtor, it can take various forms: garnishing wages or bank accounts, issuing a writ of seizure and sale, registering the judgment against real estate, and taking either subpoena to debtor or examination in aid of execution proceedings against the debtor.
The most appropriate form of execution proceedings to be taken against the judgment debtor is the garnishment of his bank account at Scotia Bank as he has a substantial sum of money deposited there. |
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