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17 Cards in this Set
- Front
- Back
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Common law |
A system of law where later cases follow principles of law developed in earlier decisions, called stare decisis, or the theory of precedents. The previous case must be similar in all material respects to the case before the court, referred to as on point. Used in all provinces except Quebec. A court is bound to follow earlier decisions only if it was made by an equal or higher level of court. |
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Statute Law |
Parliamentary enactments, made by legislature. The British North America Act of 1867 (aka the Constitution Act) divided the power to make law (statutes) between federal and provincial levels of government.
Statute law overrides any existing law on the same point. |
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Subordinate Legislation |
Governments often delegate some of their legislative power to ministers, departments, boards, or other such bodies. These bodies are empowered to pass subordinate legislation, within limits. |
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Courts of Equity |
The Courts of Chancery, or Courts of Equity, were developed in response to the rigidity of common law, and embodied principles of law that are flexible and based on good conscience. Both courts were merged into one around 1875, but the court needn't apply the principles of equity in every case. Equity prevails over common law. |
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Structure of the Courts |
1. Supreme Court of Canada 2. Provincial Court of Appeal 3. Provincial Supreme Court 4. Provincial Court - Small Claims Division |
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Criminal vs. Civil Law |
- Parties are different: Crown vs. Accused, Plaintiff vs. Defendant - Burden of Proof is different: Beyond a reasonable doubt, balance of probabilities - Outcome is different: Punishment, compensation |
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Substantive & Procedural Law |
Procedural law is the body of law governing the process by whereby substantive rights are enforced. Substantive Law involves the content of the law, such as how a contract is formed, was it breached, etc. Procedural law refers to the rules of the court, such as which court a complaint should be heard in. |
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Civil Lawsuit: Procedure for bringing a claim |
1. WRITE: Plaintiff serves the defendant with a notice of civil claim. The defendant may file a response to civil claim. These are referred to as written proceedings. Appearance. 2. Examination for discovery is like a mini-trial to bring out evidence prior to trial. 3. The pleading process is intended to reveal as many relevant facts as possible before the actual trial. The purpose is to encourage settlement. 4. A pre-trial conference is held. |
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Civil Lawsuit: The Trial |
May be heard by judge and jury, or by judge alone. The burden of proof is on the plaintiff to prove its case on what is known as the balance of probabilities. |
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Civil Lawsuit: The Judgement |
The court will issue a decision which will resolve issues between the parties. The judgement will set out the duties and liabilities which are owed by each party to the other. Actions may include damages, injunction, specific performance, court costs. |
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Appeal |
Either party may bring an appeal if they are unsatisfied with the result of the trial. The party bringing the appeal is known as the appellant. The party against whom the appeal is brought is known as the respondent. |
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Enforcing Judgements |
The judgement creditor has a number of options for enforcing judgement of the judgement debtor. 1. Examination of the JD to determine assets. The court may order him or her to pay the judgement by regular instalments of a certain amounts. 2. Execution: If the JD has assets, these can be seized and sold. 3. Remedies Against Land: A judgement can be registered against an interest in land at the land titles office. 4. Garnishing Order |
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Legal Fees |
Party & Party costs: - Only a portion of the actual costs incurred - Set out in a published tariff - Usually awarded to winning party Solicitor & Client Costs: - Higher tarrif, usually only in special circumstances such as a frivolous or vexatious claim |
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Case Brief |
- Facts - Issue(s) - Decision - Reasons - Ratio (Legal Principle) |
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Organization and Regulation of the Real Estate Industry |
- Both governmental regulations and voluntary organizations - Concerned with standards of real estate practice and protection of the public - Legislations may vary provincially - Licensing of real estate professionals |
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Provincial Real Estate Acts |
Makes sure licensees are Competent and adhere to certain standards. |
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The Appraisal Profession |
- Licencing not in force in all provinces - Appraisal Institute of Canada (1938) - Canadian Uniform Standards - ethics, appraisal, review and consulting |
