10.1 - Introduction to Civil Law

What is Civil Law?

Section 3.1 introduced the major classifications of law in Canada.  One of the major categories of law is private, or civil law.  Civil law is that area of law that deals with disputes between individuals, between organizations, or between individuals and organizations.  Civil law is further divided into tort law, contract law, family law, wills & estates law, property law, and employment law.  Each type of civil law has some commonalities between them.

Fundamentals of Civil Law

Just as criminal law has some of its own language and terms that are used, civil law also uses some unique language.  The legal action to resolve civil disputes is called litigation; and the parties involved in a civil action are called litigants.  The plaintiff is the party that starts the litigation, and is the one that is alleged to have been the victim of some kind of harm.  On the other hand, the defendant is the party being sued in the civil action, and is alleged to have harmed the plaintiff in some way.  When a plaintiff sues a defendant, they do so to receive some kind of remedy, or fix, to the harm that has allegedly been done to them.  The compensation that it received for a harm done in a civil action is called damages.  So, considering the above terms, it can be seen that civil law uses some of its own language, as does criminal law.

Civil law cases are also different from criminal law in terms of how they’re titled, and how cases are proven.  First, remember that criminal case titles follow this format:  R. v. Smith (2017), where “R” represents Regina (the Queen), and “Smith” is the person convicted of a crime.  Civil cases, on the other hand, follow this format:  Brown v. Henderson (2017), where “Brown” is the plaintiff, and “Henderson” is the defendant.  Second, remember that in criminal law, ‘guilt must be proven beyond a reasonable doubt’.  In civil law, decisions are made on the ‘balance of probabilities’.  This means that the evidence is weighed in order to determine which side is more convincing, or is most likely to be most right.

Civil Actions and Minors

Minors may not directly act as a plaintiff or a defendant in a civil action.  However, they may be involved in civil actions if they have an adult that represents their interests in court.  A next friend is an adult who represents a minor, or person with a disability, who starts a civil action.  That is if a minor is a plaintiff, then a next friend will represent them.  However, if a minor or person with a disability is being sued (ie.  they are the defendant), then the court will appoint an adult to act on their behalf.  This role is called a guardian ad litem.  So, although minors may not sue or be sued, they may be indirectly involved in civil lawsuits by using either a next friend or a guardian ad litem.

Steps in a Civil Action

Here is an illustration of the typical steps followed in a civil law matter:

Civil cases in BC involving damages less than $5000 are now filed and resolved online via the Civil Resolution Tribunal.  Civil cases that go to trial are heard in either BC Provincial Court, or BC Supreme Court.  If the amount of damages being sought is between $5001 and $35,000, then the case is typically heard in BC Provincial Court, in Small Claims Court; while cases involving damages over $35,000 are heard in BC Supreme Court.

It is possible to appeal a civil court decision, but only if there is a mistake of law, or a mistake of fact.  Occasionally, a number of people will have the same conflict with one specific party.  If they do, they may launch a class action lawsuit.  This is a single civil action launched by a group of people against the same defendant over the same complaint.  If a civil action is decided in court, the judge decides both which side is more likely to be right, and also what, if any , should be the amount of damages awarded.

Civil Remedies

There are three main categories of remedies that a plaintiff may seek as the result of the harm done to them by the defendant.  The first type of remedy that may be sought is pecuniary (or special) damages.  This is monetary compensation for losses that can be calculated.  These losses may include compensation for out-of-pocket expenses such as medication, wages lost, other direct costs, etc.  Pecuniary damages are often referred to as ‘general’ or ‘compensatory’ damages.  The second type of remedy that may be sought is non-pecuniary (or aggravated) damages, and these include compensation for losses that don’t include an actual loss of money, and therefore are difficult to calculate.  Non-pecuniary damages may include intangible losses such as pain, humiliation, distress, etc.  Losses such as these are difficult to calculate, but claims are limited to $447,550 for non-pecuniary losses in Canada (2024).

Other than pecuniary and non-pecuniary damages, there are still several other types of damages that may be awarded as the result of a civil action.  The first type is punitive damages.  Punitive damages are damages awarded to the plaintiff simply to punish the defendant for their actions.  The second type of damages is called nominal damages, and this is minimal compensation awarded simply to acknowledge a moral victory.  Third, specific performance may be awarded.  This is a court order that requires a party to do something to fulfill the terms of a contract, instead of paying money.  The final type of remedy is an injunction, which is a court order that requires a party to start doing something, or stop doing something.  So, it can be seen that there are numerous manners in which a dispute between two parties may be settled.

So then, what happens after parties have settled out of court, or a decision has been made in court?  The short answer is that the defendant supplies to the plaintiff whatever remedies have been agreed to, or awarded.  Unfortunately, it sometimes takes some time for the damages to be paid.  If a party is slow to pay, a plaintiff has three options.  They may force an examination of a judgment debtor, which involves the defendant appearing in court with their personal financial records to prove that they are financially capable of paying the awarded damages.  The second option to collect money owed, is to garnish the defendant’s wages.  This is when the court collects money directly from the defendant’s employer, and sends it directly to the plaintiff.  Finally, the court may order that assets of the defendant be seized and sold, and the proceeds be given to the plaintiff to help pay for the damages.  Going to trial over a civil dispute can be both costly and resource-draining for all parties.  For this reason, most civil disputes are settled before a trial happens, and the use of alternative dispute resolutions are commonly used as an alternative to going to trial.

Alternative Dispute Resolution

There are three common methods for parties in a civil dispute to try to solve their issues instead of going to court.  The first such method is negotiation.  This is the process where both parties communicate in order to reach a mutual solution.  Alternative dispute resolution method number two is mediation.  Mediation is the process that includes a neutral third party intervening in the dispute resolution to help bring the parties to an agreement.  Finally, parties in a dispute may agree to arbitration - the process of using a neutral third party to hear the arguments for both sides, and then make a binding decision.  The vast majority of civil disputes never make it to trial.  The successful use of alternative dispute resolutions is one reason for this.

Summary

The process and players in any civil law dispute follow the general process discussed in this section.  However, each type of civil law will have specific procedures to address its unique claims.  The next section, 10.2, introduces tort law.