Often the best way to pick a lawyer is by speaking with family and friends about their experience with a particular lawyer. If you are trying to choose a lawyer where you don’t have a friend or family member’s referral to the lawyer, the most important thing in my opinion is that you need to feel ‘comfortable’ with the lawyer you selected.

For cases that operate on contingency, you do have an opportunity to try visiting or speaking to a few different lawyers to determine who you trust or click with more. Take advantage of meeting multiple law firms to get a feel. It may seem like an extra step but it will help you compare.

Lastly, you can look a the history of Google Reviews to ascertain an overall feel and assessment of the firm. Google currently has the most trustworthy review system, whereas many other ‘local review’ websites are more manipulated with ‘fake’ reviewers.

Other preferences:

Some want their lawyer to be located downtown in a high-rise office tower and be dressed in a three-piece suit. If that’s what makes you feel comfortable and gives you a sense trust in your lawyer, then that’s where you should look for your lawyer. Alternatively, some folks find a smaller law firm where the lawyers are ‘approachable’ and give you a good first impression.

You want someone who is experienced in the field where you need help, will listen to you and work hard for you. Ultimately you should hire the lawyer who provides a sense of comfort and trust.

* Input from Ofee Injury Law.

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By the time the pleadings are closed, there will be a precise definition of the issues between the parties.

There are 3 fundamental principles of pleading:

a) Each party must plead the material facts on which he/she/it relies for the claim
or defence;

b) The material facts stated in the preceding pleading will be deemed to be admitted if not expressly denied or joined in issue by the other side; and

c) Any fresh matter must be specifically pleaded if it might have the effect of

(i) making the claim or defence in the preceding pleading not maintainable;
(ii) taking the opposite party by surprise; or
(iii) raising issues of fact not arising out of the preceding pleading.

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The Elements of a Negligence Action –

Remember, the plaintiff usually has the burden of proving the first five, while the defendant has the burden of proving the sixth.

1. Duty of Care (limiting step) – there are policy considerations that can lead to the finding and non finding of a duty of care; this duty of care exists when it is reasonably foreseeable that your actions will have an effect on another person.

2. Standard of Care and its Breach – in most (but not all) negligence actions, the standard of care is the reasonable person standard .

3. Causation – has the breach of the duty of care caused an injury to the plaintiff? But for the breach of the duty of care, would the injury have occurred?

4. Remoteness of Damages (limiting step) – also called legal causation; if the damages are found to be too remote from the breach of the standard of care, then the plaintiff will not win the case.

5. Actual Loss – without loss, the plaintiff will not be successful (as opposed to intentional torts)

6. Defences – voluntary assumption of risk, illegality

The post Introduction to the Tort of Negligence appeared first on Anonymous Law Student.

1) ex ante: precedent used as deterrent,
2) ex post: used to compensate victims.

Both of these approaches may work yet expost may have additional complications.

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Battery – unwanted intentional touching
Assault – threat of battery
Intentional infliction of mental suffering
Intentional interference with chattels (theft)
Recklessness

Defences to intentional torts include:

1) Provocation (self defence)
2) Consent (not informed or can’t make decision)
3) Necessity

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Judicial review: administrative actors are subject to judicial review. It is part of public law where superior courts under s96 engage in surveillance of lower tribunals to ensure they are acting legally. S96 courts derive their power from s96 of constitution, hence the name. The role of s96 courts in judicial review is part of their inherent authority. Federal courts operate differently they operate as equivalent as s96 court however they have statutory power, not inherent power. When they invented federal courts they took some powers that should belong to s96 courts and gave them to federal courts.

Sample cases where judicial review does or does not apply.

-Boucher v. Metis Nation of Alberta Sssn., 2009, ABCA 5
-Herd v. Port Severn Campers Assn., 2010 ONSC 1567
-Kaplan v. Canadian Institute of Actuaries (1997), 151 DLR (4th) 481 (CA)
-Egerton v. Appraisal Institute of Canada, 2009, ONCA 390
-Community organizations, sports organizations

Prerogative Power: a residual Monarch power that has not yet been displaced by statute. For example, in Canada, the granting of granting honours, pardons, and passports remains a pregogative power.

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E.g. a persistent objector cannot opt out of a jus cogens norm.

Jus cogens is in contravention on a strict positivist approach because it does not seem to based on state consent because states are bound by these norms even if they do not consent to them. The existence of jus cogens still remains somewhat controversial, however they have achieved quite an wide scope of acceptance. The notion of jus cogens is that these norms are owed by states to all of the international law community.

Vienna Convention (VCLT) is an important document that references jus cogens norms. They have also been supported and referenced in ICJ decisions. They are regarded to obligations erga omens i.e. owed to all. There is some controversy as to which rules of customary law are jus cogens norms. There is a short list of generally accepted jus cogens norms: you cant invade another state unless you have security council approval or are acting in self defence (prohibition on use of force); the international crimes under IL such as slavery, piracy, apartheid, torture.

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ex ante: the effect that decisions in this case will ahve on future behaviour (punish the tortfeasor).
ex post: ignores future behaviour, observes equitable distance between two parties (compensation of victims).

2 Functions of Tort Courts:

1) Determine Liability: who pays
2) Damages: how much they pay.

Liability aspects to consider include:

1) Duty of Care: did defendant owe a duty of care?
2) Causation: did your actions cause the accident?
3) Standard of Care: did the parties exhibit a standard of care? If no, then they are negligent.
4) Liability: If party did take standard of care. If they are not negligent they are not liable most of the tiem.
5) Onus of Proof: Who’s responsibility to prove? It’s usually the plaintiff.

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What are treaties? Treaties are instruments that establish international rights and obligations. Treaties go by many names: conventions; memorandums, etc. at the root at ii if it’s a binding instrument subject to international law then it’s a treaty.

Where does the legal weight of treaties come from? Pacta servanta – there ought to be an obligation amongst states to adhere to their treaty obligations.

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“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prereogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96”.

There are exceptions to the above definition:
-if statute gives power to another Court
-if remedy is not provided by Federal Court act e..g habeus corpus application

There are two grounds for judicial review – Procedural and Substantive.

Procedural occurs if you are unhappy with the process in which a decision was made. Substantive review occurs if you think the decision that was reached was wrong or unreasonable. Even if you have no statutory right of appeal…it is still available…it is part of the inherent jurisdiction of the court.

Why do we consider the role of the court (i.e. inherent jurisdiction) important? It’s because it relates to the fundamental relationships between the different branches of government. Should the legislature be allowed to create a body that is immune to judicial review (i.e. Guantanamo)? What would the consequences of having no legal recourse from administrative decisions? There would be no protection against arbitrary uses of power. Inherent jurisdiction of courts makes them the guardians of The Rule of Law. They ensure that entitites exercising public power will not abuse that power.

Three elements of the Rule of Law (as per Manitoba Language Rights Reference):

1. The law is supreme over the acts of both government and private persons.
2. The rule of law requires the creation and maintenance of an actual order of positive laws
3. The exercise of all public power must find its ultimate source in a legal rule. The relationship between the state and the individual must be regulated by law

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