A
Act: An Act is a written law that has been passed by the federal or provincial legislature. Also called legislation or statute.
Admissible Evidence: Evidence that may be received by a trial Court to aid the judge or jury. Generally, evidence must be both relevant and material to be admissible, as well as not barred by any specific rule. In addition, the inclusion of the evidence should not be significantly unfair or prejudicial to a party.
Adjournment: The postponement, suspension or interruption of an ongoing hearing, proceeding, or trial, to resume at some future date. This may be at the request of one of the parties, or directed by the Court. It is always the Court who decides whether or not to adjourn the proceedings.
Affidavit: A document that contains facts that a person swears or affirms to be true. A lawyer, notary public, or commissioner for affidavits must witness the person’s signature and sign it.
Alternative Dispute Resolution (ADR): Alternative Dispute Resolution is the use of arbitration, negotiation, mediation and out-of-court settlements (as opposed to court litigation) in the resolution of legal disputes. In family law, the purpose of ADR is to offer a less conflict-oriented and often less expensive way to resolve a dispute than litigation.
B
Balance of Probabilities: The burden of proof in a civil trial. The court must be convinced the evidence shows it is more likely than not that the person asking for an order is entitled to the order, or the court will not give the order.
C
Case Law: Decisions of courts relating to a particular matter or issue. Case law from the same level of court or other jurisdictions may be persuasive, but the court does not have to follow it. Case law from a higher court is binding on the lower court.
Chambers: A courtroom at the superior trial court level where applications (not trials) are heard. In Quebec, “chambers” is called “practice court” and is used for ex parte applications like seizures, or injunctions, or special modes of service.
Chambers Applications: In a proceeding started by notice of civil claim, chambers applications usually deal with pre-trial procedural issues that come up as the case progresses.
Civil Litigation: A lawsuit that is brought to enforce, redress, or protect a private or civil right. It is initiated by the person who actually suffered the effects of the harm. Civil litigation usually deals with private disputes such as a breach of contract.
Costs: In a superior court, a master or judge’s order that the losing party in an application or trial, pay an amount of money to the other party based on the time or money the other party spent to go to court. This may include all or part of court fees, disbursements, and legal fees.
Counterclaim: A document that sets out any claim the defendant might have against the plaintiff or another party related to the lawsuit started by the plaintiff. It is an independent action raised by a defendant that can heard at the same time as the plaintiff’s claim. The counterclaim acts as the defendant’s statement of claim against those parties.
Court Order: A legally binding direction by the Court to do something. There are serious legal consequences for disobeying a court order.
Court Reporter: A trained professional who creates official records of things said during examination for discovery / questioning, and court proceedings. This may also be done electronically.
Cross Examination: The questioning of a witness by a lawyer or party on the other side - who did not call the witness to testify. Cross-examination takes place after the lawyer or party who called the witness to testify has finished asking question in direct examination (or examination in chief). The purpose of cross-examination is to test the witnesses’ truthfulness or reliability. Questions in cross-examination are allowed to be leading, that is, to suggest a certain answer.
D
Damages: Damages include monetary compensation for financial loss, property loss, emotional injuries, physical injuries, loss of earnings, and costs of care.
Default Judgment: If you do not file a response to a notice of claim or application, the judge may make a decision granting judgment in your absence and without your input.
Direct Examination: The questioning of a witness in court by the person who called the witness to court. The questions must be open ended and must not suggest a specific answer – i.e. they cannot be leading questions. Direct examination is also called examination in chief.
Disbursements: Out-of-pocket expenses incurred in lawsuit (e.g. court filing fees, the costs of registry searches, or the costs to obtain medical evidence).
Disclosure: The process of exchanging information (e.g. financial statements) that is related to the lawsuit and tend to prove or disprove the issues in dispute. Each party to a lawsuit must disclose all of their relevant information to the other side. Failing to disclose required documents can have serious consequences. Also called Discovery.
Duty Counsel: Lawyers paid by Legal Aid or otherwise publically funded, or pro bono, who may help unrepresented persons, generally at courthouses or places of detention, in providing brief, summary services, related to various civil, family, criminal, or immigration law problems, depending on the jurisdiction, Duty counsel provide free legal advice for a specific court appearance, but do not take on your whole case or represent you at trial. Examples include: in civil court, assisting parties in presenting pre-trial civil applications; in family court, assisting parties in presenting pre-trial family laws, including in relation to obtaining or maintaining restraining orders in family violence cases; in immigration court, providing basic advice and release on first appearances; and in criminal court, providing basic advice and release / bail on first appearance.
E
Evidence: Oral or written statements under oath or affirmation by a witness, or “real” evidence, such as documentation or objects (which become exhibits), presented to the court by agreement of all parties, and the judge, or under evidentiary rules, to prove the facts that are necessary to establish a claim or defence in a civil or family case, or to determine the guilt or maintenance of innocence of an accused in a criminal case.
Examination for Discovery or Questioning: In civil and family proceedings, a process by which the parties to an action question one another, or another person, under oath or affirmation on the facts and issues. A transcript of the questions and answers is produced. The term “questioning” is used in some jurisdictions.
Exhibit: A document or object admitted as evidence in court.
Expert: A witness who gives evidence to help the court understand technical and scientific issues in the legal action. He or she may give opinions in areas that would not normally be within the judge’s knowledge. The expert must be shown to possess the necessary skill and qualifications in the area in which their opinion is sought. An expert can give evidence in person, and / or by writing a report called an expert report.
F
Final / Closing Arguments or Submissions: At the end of the trial, you will present your argument to the court (judge alone in civil and family trials and judge and jury in some criminal trials). It is a summary of your position based upon the evidence that has been presented to the court about the decision that the court should make.
H
Hearing: In law, a proceeding before a judge or master (only in some civil and family cases) to determine questions of law and / or questions of fact, whether the hearing of an application or the hearing of a trial.
Hearsay: Inadmissible testimony that is given by a witness for the truth of its contents, who relates what others have said rather than what they personally witnessed or observed. There are a number of exceptions to hearsay being inadmissible – it is a complex legal area.
I
Interim Application: One party asks the court to make an order, which in most cases is not a final one. These applications often deal with issues that arise in the course of a lawsuit that require a court order before a trial.
Interrogatories: Pre-trial written questions sent to the other party in litigation lawsuit, and for which a reply is mandatory.
J
Judicial review: A court’s power to review the actions of other branches or levels of government as provided for by law. A court’s review of a lower court’s or an administrative body’s factual or legal findings.
L
Leading Question: A question that prompts or encourages a desired answer. Usually allowed in cross examination but not allowed in direct examination (or examination in chief).
Leave of the Court: The court’s permission to proceed with certain types of applications or appeals or to proceed in a certain way.
Legal Advice: Advice from a lawyer about the law as it applies to a particular case. It usually includes information about whether, why and how a party should do something.
Limitation Period: The period of time that a party is allowed to wait before starting a case. After a limitation period has passed a lawsuit cannot be successfully started.
Limited Scope Retainer: See “Unbundled Services”.
List of Documents: A list of all the documents that relate to the issues in a case and are in a party’s possession or under a party’s power and control. The list also includes a list of any documents that may be privileged. This list is provided to the other parties in the discovery process and tells them where the documents can be examined (unless privileged).
M
Master: A judicial officer of a superior trial court in a province or territory (called “Special Clerks” in Quebec), who may decide certain matters before or after a trial. Masters hear many chambers applications. In some areas of the law (it may vary from jurisdiction to jurisdiction), a master has powers as a judge to make interim or temporary, or, in some cases, final orders, but cannot make final orders in divorce matters.
Material Fact: A fact that is important to proving your case.
McKenzie Friend: A McKenzie Friend is allowed to sit with you during the trial, and may provide moral, emotional and practical support like organizing documents and taking notes. They can make quiet suggestions, but they cannot address the court or give you legal advice.
Mediation: A non-binding process in which a neutral third party with no decision-making authority attempts to facilitate a settlement between disputing parties. Mediation is usually a private, voluntary dispute resolution process.
N
Negotiation: Any form of non-facilitated (no third party) communication that allows the parties to discuss the steps they need to take to resolve the dispute. Negotiations can take place between the parties directly, or through others (such as lawyers) acting on behalf of the parties.
O
Objection: A statement made by a party during a hearing or trial for the purpose of challenging any specific evidence sought to be introduced. Common objections during trial include when a party inappropriately asks leading questions, when a party asks multiple questions at once, when a party asks vague or confusing questions, when a witness gives inadmissible hearsay evidence or opinion evidence, and when a party tries to introduce privileged information as evidence. The judge determines whether the objection succeeds or not, and may suggest a different form of question. See also Hearsay.
Onus: The burden of proof – who (which party) has to prove something.
Open or Open-ended Questions: Questions that cannot be answers with a simple yes or no. They usually begin with who, what where, why, and how.
Order: A ruling made by a judge or master that tells a party to do something or not do something. It can also be the document that sets out the decision of the judge or master (in some civil and family cases).
P
Petition: In some jurisdictions, a document that starts some court cases. It sets out the basic facts of the event or transaction, the legal consequences and the remedy or relief the petitioner is asking for.
Pleadings: A statement in writing of material facts and law on which a party to a dispute relies in support of a claim or defence – the documents that start a lawsuit or explain a party’s defence to a lawsuit.
Precedent: An earlier decision of a court or a higher court that should generally be followed in subsequent similar cases.
Privileged Document: A document the other party is not entitled to see because it was created during confidential communications between a lawyer and his or her client, or was created to help conduct or settle the litigation.
Pro Bono Legal Services: Legal services donated to individuals, free of charge.
Process Server: A professional document server.
R
Re-Examination: Questions asked by the party or counsel who called the witness, after cross-examination by the other party or counsel. Re-examination happens if the cross-examination has brought out new facts, or if something raised for the first time in cross-examination was unclear.
Registered Office: A head office or chief place of business. It is the office where documents may be served on a company and where certain documents and books must be kept. The address of this office is on file with the provincial Registrar of Companies.
Regulations: Laws that usually set out practical information or procedures relating to a particular statute. They provide specific instructions about how to implement the statute and tend to change more often than the statute itself.
Release: A document signed by the parties to acknowledge that they are giving up all or some part of claims in connection with the legal dispute. It is usually signed as part of a settlement.
Requisition: A document that asks the court registry to do something. For example, a document that asks the registry to search the court file for a response to the notice of civil claim.
Retainer: An agreement with a lawyer for legal work is called a “retainer”. A written retainer letter sets out the work that the lawyer has agreed to do, what the lawyer will not do, and how the lawyer’s pay will be calculated. The retainer agreement sets out the scope of your lawyer’s involvement in the file.
Rules of Court: Rules that govern the practice and procedure of the Court. They provide guidelines for each step in the litigation and set time limits for when certain steps must be completed. Additional guidance with Rules of Court type effect include, Practice Notes, or Practice Directions, or Notices to the Profession and Public.
S
Serving a Document: Giving a legal document to the parties to the lawsuit. The Rules of Court set out certain procedures that must be followed when serving a document.
Settlement: An agreement between the parties in a dispute. A settlement can end or avoid or reduce the scope of a court proceeding. It usually involves the payment of money, or the release of rights.
Sheriff / Bailiff: The Sheriff’s / Bailiff’s responsibilities are to make sure the courtroom is safe, and to look after witnesses, jurors or prisoners.
Standing: A party’s right to make a legal claim or seek judicial enforcement of a duty or right.
Statute: See Act.
Subpoena: A document that notifies a witness that he or she is required to go to court to give evidence at a trial and that failure to do so could have serious negative consequences.
Superior Trial Court: Hears civil and criminal cases. Depending on the province or territory, they may be called the Supreme Court, the Court of Queen’s Bench, or the Superior Court of Justice.
T
Torts: The legal term for negligent injury or harm caused to a person, for which another person is legally and financially responsible.
U
Unbundled Services: This is a method of legal representation in which a lawyer and a client agree limit the scope of the lawyer’s involvement in a legal action, leaving the responsibility for those other aspects of the case to the client in order to save the client money and give them more control and responsibility.
W
Without Prejudice: This principle will generally prevent statements, whether made in writing or orally, in a genuine, but unsuccessful, attempt to settle or resolve an existing dispute from being put before the court as evidence of admissions against the interest of the party who made them. If they are used to successfully settle or resolve the dispute, they become “with prejudice”, and are admissible.
Witness: A person who gives evidence in a court proceeding orally under oath or affirmation, in person or by affidavit. Witnesses are persons who testify in court because they have some information about the case. A witness may volunteer to testify or may receive a subpoena (a legal document which orders them to come to court at a certain time to testify).