Civil Litigation

 

If you are thinking of suing someone or you are being sued by someone else then you should know the basic three types of civil suits in Ontario.

1.      Contract  - when you had an agreement with someone (oral or written) that somehow went wrong

=         you can sue for ‘Expectation Damages’ - you want to ask the court for the profit that you believe you would have made had the contractual terms been completed; 

=         you can sue for ‘Rescission’ – you want to ask the court to put you back in the financial position you were in before the contract was made.  

Eg.  – sale of goods or services, renovations etc.  

2.      Tort –  a latin word meaning ‘wrong’ 

=         when there is no agreement but someone has caused you damage either physically or financially

Eg.  Damage to property, assault, defamation, negligence etc. 

3.      Restitution – when there is no contract and there is no ‘wrong’ as such but someone has something that is rightfully yours and it would be ‘unfair’ to let them retain that property.

      Eg.  – return of personal property, money had and received, etc.  

Each type of claim has its own rules and procedures and since you can’t ask a judge for something at trial that you did not plead in your claim or defence then how you draft your claim is crucial to your success.  

Many paralegals have basic training regarding the procedures and a cursory understanding of the law but the law and the rules are so vast and complex that it is important to find someone that specializes in civil litigation. 

Answers

#1 DID YOU KNOW?

In civil court, there are three general types of claims a plaintiff can make when initiating proceedings.  1.  Contract is based on an agreement between parties that went wrong.  2.  Tort is based on a wrong that is done to a party.  3.  Restitution is based on one party unfairly retaining money or property of another.  Do you know which categories each of the following are examples would be grouped?   (1, 2 or 3?)

Assault   (2)                                         

Renovations (1)

Defamation (2)

Lost and Found Wallet (3)

Sale of Goods (1)

Negligence (2)

Overpayment (3)

Employee Takes Cash from Till (2)

#2    Did You Know?  


Henry hires John, a building contractor, to build his front porch but decides to do the shingling himself.  Both buy their supplies from Gary ‘on account”.  
Both the porch and shingling work on the roof progresses very well but last week Henry fell off the roof and dies as a result of his injuries.
Henry was pretty much broke when died and there is only enough money left in the estate to pay either John and Gary but not both.

Who gets paid?

A) John gets paid because he can file a construction lien and secure priority payment by the estate.
B) Gary gets paid because he can file a construction lien and secure priority payment by the estate.
C) Neither get paid because of their competing claims
D) John and Gary should both file a lien and split the payment.

Answer

A right in contract differs from a right in tort (latin for ‘wrong’).

A tort  is said to exist ‘in personam’  against a particular person as opposed to a right ‘in rem’, which exists against all persons in general.  In modern terms an example of the latter is a construction lien which is technically held against a property not the owner, so the right does not transfer if the property is sold. The ‘right’ is invested in the property itself not the owner.  A contract for personal service, like employment, sale of chattel, or even getting a haircut is a right in personam and does not generally transfer with property or otherwise. 

* John gets paid because he has an 'interest' in the land since he actually added value to the property.  Gary simply sold chattle


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