Small Claims Glossary (20:App E)

AMENDMENT

• Modification of submitted materials. Amendments can consist of additions, deletions, and corrections.

ADJOURNMENT

• In court settings, postponement of an appearance date until a later, fixed, date.

BALANCE OF PROBABILITIES

• The civil standard of proof. To prove a civil case, it need only be established that the case is more probable than the other.

BEYOND A REASONABLE DOUBT

• The criminal standard of proof. Explained concisely in widely-cited case R v W.(D.), [1991] 1 SCR 742, which is discussed in Chapter 1: Criminal Law.

CAUSE OF ACTION

• Legal cause for which an action may be brought. The legal theory giving basis to a lawsuit.

CIVIL LAW

• The system of law concerned with relations between individual parties, rather than criminal affairs.

COMMON LAW

• Law derived from custom and judicial decisions rather than statutes.

COMPLETE DEFENCE

• An argument, which, if proven, will effectively end the litigation in favour of the defendant.

CONTINGENCY

• In legal circles, is commonly used to refer to a contingent fee,which is a fee for legal services provided only if the legal action is settled favorably or out of court.

CONTRIBUTORY NEGLIGENCE

• Negligent behavior of the plaintiff that contributes to the harm resulting from the defendant’s negligence.

COUNTERCLAIM/COUNTERCLAIMANT

• A claim by a defendant seeking relief from the plaintiff. Generally made as a response to the same facts that make up the issue the plaintiff originally claimed for.

CROWN

• Generally a reference to the government or state acting as a party in legal proceedings.

DEBTOR

• A person judged to owe money after the resolution of a civil case.

DEDUCTIBLE

• In an insurance policy, the amount that must be paid out-of-pocket before an insurer will pay any expenses. Generally, a clause used by insurance companies as a threshold for policy payments.

DEFAULT

• Often used in legal contexts as a verb meaning to fail to fulfill an obligation, generally referring to failure to pay a loan or make a court appearance.

DISBURSEMENT

• Money paid to cover expenses for goods and services that may be currently tax-deductible. Commonly used in the context of business expenses.

DISGORGEMENT

• Stolen money that must be repaid to victims of theft, fraud, or other financial crime.

DISMISS

• 1. The discharge of an individual or corporation from employment.
  2. Judgment in a civil or criminal proceeding denying the relief sought by the action.

EQUITY

• Can mean different things in different contexts. The most common definitions for equity include:

1. The broad concept of fairness
2. An alternative legal system that originated in the English courts as a response to the common-law system

ESTATE

• The degree, quantity, or nature of interest that a person has in real or personal property.

EX PARTE

• In the interests of one side only or an interested outside party.

EXECUTOR/EXECUTRIX

• A person specifically appointed by a will to carry out its wishes. Some of the administrative responsibilities typically added to executor’s duties include:
  • Gathering up and protecting the assets of the estate;
  • Locating beneficiaries named in the will and/or potential heirs;
  • Collecting and arranging for payments of debts to the estate;
  • Approving or disapproving creditors’ claims;
  • Making sure estate taxes are calculated.

EXTRAPROVINCIAL CORPORATION

• A corporate body which is not incorporated in the province where action has been started.

GARNISHEE

• A third party ordered to surrender money or property lost by a defendant. The third party must possess the money or property but the defendant must own it.

HEARSAY

• A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible but there are many exceptions to the hearsay rule.

IN FORCE

• Commonly refers to when a law becomes legally applicable.

INDEMNIFY

• Contract with a third party to perform another’s obligations if called upon to do so by the third party, whether the other has defaulted or not.

INDIGENT

• Used in legal contexts to identify a person with no reasonable ability to pay; often used to identify those deserving of legal aid or waived filing fees.

INJUNCTION (MANDATORY, PROHIBITORY, MAREVA, ANTON PILLER)

• A court order requiring an individual to either perform or not perform a particular act.

JUDGMENT PROOF

• Commonly used to refer to defendants or potential defendants who are financially insolvent.

JUDICIAL REVIEW

• A process where a court of law is asked to rule on the appropriateness of a decision of an administrative agency, tribunal, or legislative body.

LEAVE

• Commonly used in the context of leave of the court. Generally refers to permission to perform an action or make a statement.

LITIGANT

• Any party involved in a lawsuit.

MALICIOUS PROSECUTION

• A cause of action relating to a civil suit or criminal proceeding that has been unsuccessfully committed without probable cause and for a purpose other than bringing the alleged wrongdoer to justice.

MISNOMER

• An inaccurate use of a word or term.

PARTNERSHIP

• An association of two or more persons engaged in a business enterprise in which the profits and losses are shared proportionally.

PRIMA FACIE

• Based on first glance; presumed as true until proven otherwise.

PROPRIETORSHIP

• An unincorporated business owned by a single person who is responsible for its liabilities and entitled to its profits.

QUANTUM MERUIT

• Latin for “what one has earned.” The amount to be paid for services where no agreement exists.

QUANTUM VALEBAT

• Latin for “what it was worth.” When goods are sold without a price specified, the law generally implies that the seller will pay the buyer what they were worth.

REGULATION

• A law on some point of detail, supported by an enabling statute, and issued not by a legislative body but by an executive branch of government.

RELIEF

• A legal remedy – the enforcement of a right, imposition of a penalty, or some other kind of court order – that will be granted by courts in response to a specific action.

ROYAL ASSENT

• In Canada, where the Lieutenant Governor signs a bill to bring it into law. New legislation can exist as a bill but not as binding law if it has not received Royal Assent.

SET-OFF

• A claim by a defendant in a lawsuit that the plaintiff owes the defendant money which should be subtracted from the amount of damages claimed.

SPECIFIC PERFORMANCE

• A legal remedy that compels a party to complete their specific duty in a contract rather than compensate the claimant with damages. Often used when a unique remedy is at issue.

STAND DOWN

• In court, when a matter is postponed for a short period of the time. Differs from adjournment in being less formal; to stand a matter down is usually to postpone it for a short, indefinite period, while adjournments are often for longer fixed periods.

STATUTE

• A written law passed by a legislative body.

STAY OF PROCEEDINGS

• Stoppage of an entire case or a specific proceeding within a case.

SUBROGATE

• To substitute one party for another in a legal proceeding. The facts of each case determine whether or not subrogation is applicable.

SUBSTITUTIONAL SERVICE

• Under court authorization, serving an alternate person when the original named party cannot be reached.

TORT

• A private, civil action stemming from an injury or other wrongful act that causes damage to person or property.

UBERRIMAE FIDEI

• Utmost good faith; commonly used as the standard for dealing in insurance contracts.

WITHOUT PREJUDICE

• A reservation made on a statement that it cannot be used against in future dealings or litigation.