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.
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.
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.
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.