In this feature, we explain the meaning of some frequently used legal terms. Following each issue of Risk Management Tidbits, new terms will be added to this growing glossary.
An affidavit is a written document containing the evidence of a witness. Affidavits are used for most pre-trial matters, such as
procedural applications and summary trials.
In an affidavit, the witness describes, in numbered paragraphs, his or her observations about the matter at hand. He or she may
attach documents, known as “exhibits”, to the affidavit. The witness must sign the affidavit before a commissioner such as a lawyer or notary and at that time swear or affirm that the evidence in the affidavit is true. The affidavit will then be filed at the court and counsel will rely on the affidavit to provide the factual basis when presenting argument to the court.
In some circumstances, a witness may be cross-examined on the evidence given in his or her affidavit by the lawyer for the
Canadian Charter of Rights and Freedoms
Enacted in 1982, the Canadian Charter of Rights and Freedoms (the “Charter”) is a part of the Canadian Constitution. It sets out a number of rights and freedoms, including the right to equality before the law, freedom of expression, freedom of assembly, and freedom of religion.
Because the Charter is part of the Constitution, the rights and freedoms it enshrines are considered to be part of the supreme law of the land and are therefore “guaranteed”.
The Charter applies to the laws and actions of all levels of government, including local government. This means that local government bylaws must comply with the Charter. It is not uncommon for bylaws to be challenged on this basis. For example, litigants have challenged sign bylaws under the Charter on the basis that they are an unreasonable intrusion on the right of freedom of expression.
The decisions and conduct of local government actors may also be challenged under the Charter. For example, a property owner may argue that a bylaw officer violated his right to be free from unreasonable search and seizure. Where a court finds a Charter right was infringed, it has a broad discretion to order a remedy.
The rights and freedoms protected under the Charter are not absolute. Section 1 provides that they are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” For example, a law that restricts the sale of pornography may be considered a justifiable intrusion on the freedom of expression. As a result, every analysis of an alleged infringement of a Charter right entails a two-step process. The first step is to determine whether or not a protected right has been infringed. If so, it is then necessary to determine if it can be justified under section 1.
Contributory negligence is a defence that is available in negligence, occupiers liability, and other types of tort claims. To rely on this defence, a defendant must establish that: a) the plaintiff failed to take reasonable care for his or her own safety or interests; and b) that such failure was a contributing cause of the damage. If these two elements are present, the court will apportion a measure of fault to the plaintiff and decrease the amount of damages by the percentage in which the plaintiff was at fault.
At the end of a lawsuit, the court may award “costs” to compensate a party for a portion of the legal fees and disbursements it incurred during the action. In the normal course, costs are awarded to the successful party, but the court may reduce, increase, or eliminate costs awards depending on the circumstances at hand. Costs are assessed on a tariff system and vary depending on the complexity of the legal issues involved, the amount of time and effort required, and, in some cases, the conduct of the parties. In most cases, a successful party will only receive a portion (typically 30%) of its actual costs.
Damages are amounts awarded to parties who have been harmed as a result of a legal wrong. There are many sub-categories of damages, depending on the nature of the wrong and the type of the injury or harm. Most types of damages are intended to compensate a person for the harm suffered. Exceptionally, the court may award “punitive” damages to punish the wrongdoer for particularly reprehensible conduct.
Duty of Care
A “duty of care” is a legal obligation owed by one person or entity to another person or entity. In a negligence lawsuit, the first step of the court is to determine whether the defendant owed a duty of care to the plaintiff. Not every person who causes injury to another person owes them a duty of care. A duty of care will only be imposed if there was sufficient proximity between the two parties and if it was reasonably foreseeable to the defendant that his or her negligence would cause damage to the plaintiff. There are many recognized categories of duties of care. For example, it is well established that a driver owes a duty of care to other users of the road, a municipality owes a duty of care to pedestrians using its sidewalks, and a doctor owes a duty of care to his or her patients.
Examination for Discovery
In legal actions brought in the Supreme Court of BC, each side has the right to conduct an examination of the opposing party(ies) under oath. The examination, which takes the form of questions and answers, occurs outside of court, usually at a lawyer’s office or a court reporter’s office. The answers given at an examination for discovery can help a party to learn more about the case and also can be used against the other side at trial. Where a party is not an individual, a representative will be chosen to be examined on its behalf.
In certain cases, a court may agree to hear expert evidence to assist it in determining issues that are complex or require specialized knowledge. The expert’s opinion is presented in the form of a written report, and usually the expert will also attend court to answer questions. Although the litigants are responsible for hiring the expert, he or she is responsible to the court and is expected to provide an unbiased opinion. In order to be accepted by the court, the expert must have specialized knowledge in his or her field. While an expert’s role is to assist the judge in making findings of fact, an expert must not opine on the ultimate issue before the court (i.e. who is liable for the injuries suffered).
Failure to Mitigate
Failure to mitigate is a defence available in most types of legal action. It is based upon the principle that a plaintiff cannot recover damages that he or she could have avoided by taking reasonable steps. For example, a plaintiff who is injured is expected to act reasonably in seeking medical treatment. If a court finds that a plaintiff has failed to mitigate his or her damages, it will reduce the plaintiff’s damages by the amount attributable to that failure.
Liability refers to a court’s determination of responsibility for a legal wrong, such as negligence or breach of the Occupiers Liability Act. The prerequisites for a finding of liability depend on the nature of the wrong.
An “occupier” is defined under the Occupiers Liability Act as a person who: (a) is in physical possession of premises, or (b) has responsibility for, and control over, the condition of the premises, the activities conducted on the premises and the persons allowed to enter the premises. The property owner is often but not always the occupier. For example, a tenant may be found to be the occupier if it has effective control over the premises.
Occupiers Liability Act
When a local government is sued for a trip-and-fall, slip-and-fall or other accident occurring on municipal property, the plaintiff usually relies on the Occupiers Liability Act. Under this statute, an “occupier” (defined below) is responsible to keep its property reasonably safe for those entering it. If the occupier fails to do so, the injured person may have a claim for damages.
A policy defence is a legal argument available to local governments to defend against tort claims.
In recognition that government entities have a diverse range of responsibilities but limited resources, the law exempts the “policy” decisions of government from the application of private standards of tort liability. In contrast, “operational” decisions are open to review by the courts.
It can, at times, be difficult to distinguish between policy and operational decisions. The Supreme Court of Canada has ruled that true policy decisions involve financial, economic, social, and political factors or constraints. They are typically (but not always) made by persons with a higher level of authority within the organization. Operations, on the other hand, are concerned with the practical implementation of the formulated policies.
For example, if a local government chooses, for bona fide policy reasons, to limit the number of inspections it undertakes, it will not be held liable if more frequent inspections would have prevented the damage. If, on the other hand, a scheduled inspection is missed or is carried out in a careless manner, that would be considered an operational decision, giving rise to a claim for damages.
Standard of Care
The “standard of care” refers to the minimum level of acceptable conduct of a defendant. In a negligence lawsuit, once the court has determined that the defendant owes the plaintiff a duty of care, the court will consider whether the standard of care was breached. The standard of care is based on reasonableness, not perfection. It will vary depending on the particular knowledge, experience and circumstances of the defendant. Generally speaking, where a municipal defendant has in place a bona fide policy, the terms of that policy will dictate the applicable standard of care.
A summary trial is available in some Supreme Court of BC cases to obtain final adjudication of all or part of a lawsuit without a traditional trial. Instead of in-court testimony, evidence is presented to the judge by written affidavit and/ or other documentary evidence, such as examination for discovery transcripts. In addition, there is a court hearing before a judge in which lawyers make oral submissions. Not all cases are considered appropriate for the summary trial procedure. If a case is factually complex and involves conflicting evidence, summary trial may not be available.
A Latin phrase meaning “with a living voice,” viva voce is most commonly translated as “by word of mouth.” In the legal context, this phrase refers to evidence given by a witness under oath directly to the judge in a courtroom. It is the most common way for a witness to present his or her evidence to the court in a trial.
After swearing or affirming that his or her evidence will be true, the witness gives answers in response to questions posed by
the lawyer for the party who called him or her as a witness. Next, the witness may be asked questions in cross-examination by the representative of the other party(ies). He or she may also be asked clarifying questions in re-examination by the initial lawyer.
Voluntary Assumption of Risk
Voluntary assumption of risk – also known by its Latin name, volenti non fit injuria – is a complete defence to a negligence or occupiers liability claim. To successfully invoke this argument, a defendant must establish that the plaintiff assumed both the physical risk of injury that may arise from a particular activity and the legal risk that there would be no right of action against the defendant in the event of such injury. The assumption of risk can be express or implied, but in practice this defence rarely succeeds unless the plaintiff has signed a clearly-worded waiver.