Difference between revisions of "Causes of Action (20:App G)"

The cause of action is the claimant’s reason for bringing a suit against the defendant. While there must always be a cause of action, in Small  Claims it is generally sufficient to cite the facts; Small Claims judges will take a liberal view of pleadings and allow litigants to assert claims in non-legalistic language. However, the judge must still be able to find a cause of action in the facts the claimant alleges. Potential claimants should therefore review the following, non-exhaustive list of causes of action to determine if they have a valid claim. Claimants may claim for more than one cause of action on a notice of claim and are advised to do so if they believe more than one cause of action applies or are not sure which one is valid; it is easier to name superfluous causes of action on the notice of claim than to get the claim amended after filing it. The following causes of action may be brought in Small Claims unless the amount claimed is over $35,000 or it states otherwise in the list. They are organized into 3 categories: (1) common; (2) rare; (3) see a lawyer.  

#'''Unconscionability:''' A contract is said to be unconscionable and therefore unenforceable where the circumstances surrounding the creation of the contract gave rise to a grave inequality in bargaining power between parties. This is complicated area of contract law, and legal advice should be sought.  

#'''Misrepresentation:''' If the other party made a statement to you before the contract came into existence that you relied on in entering the contract and that turned out to be false, you may be able to have the contract set aside.  

#'''Frustration:''' frustration occurs when an unforeseen event renders contractual obligations impossible or radically changes the primary purpose of the contract. Frustration is also another complicated area in contract law. Legal advice should be sought.

#'''Undue Influence:''' If one of the parties to a contract was unduly influenced by someone else (either the other party of the contract or a third party), the contract can be set aside on the grounds that the unduly influenced party had their consent vitiated due to an inability to exercise their independent will. This is complicated area of contract law, and legal advice should be sought.

Breach of confidence occurs when the defendant makes an unauthorized use of information that has a quality of confidence about it and was entrusted to him/her by the claimant in circumstances giving rise to an obligation of confidence.   

Nuisance may be private or public. Private nuisance is defined as interference with a landowner or occupier’s enjoyment of his/her land that is both substantial and unreasonable. It can include obnoxious sounds or smells or escaping substances, but does not usually arise from the defendant’s normal use of their own property. An interference with the enjoyment of land is “substantial” if it is not trivial; that is, it amounts to something more than a slight annoyance or trifling interference. Whether the interference is “unreasonable” depends on the circumstances. Factors that courts will consider (but are not bound to) in assessing reasonableness include the seriousness of the interference, the neighbourhood and surrounding area, and sensitivity of the plaintiff.   

Public nuisance may be thought of as a nuisance that occurs on public property or one that affects a sufficient number of individuals that litigating to prevent it becomes the responsibility of the community at large.  

*Appropriation of likeness: where a person’s personal image, including portraits, caricatures, photos or video footage, are used for commercial gain without their consent.  

*#'''Standard of Care''' – Once a duty of care is established, the level of care that the defendant owed to the claimant must be determined.   This is usually based on the standard of care that a reasonable person would exercise, such as avoiding acts or omissions that one could reasonably foresee might cause the claimant a loss or injury. The level of care expected of professionals in the exercise of their duties is usually higher.  

*#'''Causation''' – The claimant must show that the defendant’s carelessness actually caused the claimant loss or injury. The basic test is whether the claimant’s loss would not have occurred without the defendant’s action and no second, intervening act occurred that contributed to the loss.   

**'''Innocent misrepresentation''' – where the defendant made the untrue statement in the genuine belief that it was true. This form of misrepresentation is the easiest to prove, but it may only be claimed in contract law, so the remedy for a successful claim is always setting aside of the contract (rescission).