Canadian Law Dictionary.
The law of the Christian Church. Has little or no legal effect today.
The most severe of all sentences: that of death. Also known as the death penalty.
That body of Court decisions that act as precedents in the interpretation of various Acts. In some cases, the rule is not in statute books but can be found as a principle of law established by a judge in some recorded case.
A formal warning. Beware!
Let the buyer beware.
- Companies' Creditors Arrangement Act:
An Act under which proposals or arrangements or compromising of debt is structured. For a company to be eligible to file under the CCAA, it must have at least $5 million in debt.
Canada - Bank of Canada;
United States - Federal Reserve Bank.
of Indefeasible Title:
Certificate obtained from land titles office indicating title, charges and encumbrances against a particular piece of property. The certificate is conclusive evidence of title.
A writ of certiorari is a form of judicial review whereby a court is asked to consider a legal decision of an administrative tribunal, judicial office or organization (eg. government) and to decide if the decision has been regular and complete or if there has been an error of law.
Que Trust or Cestui Que Use:
The formal Latin word for the beneficiary or donee of a trust.
Latin" all things being equal or unchanged
When a person agrees to finance someone else's lawsuit in exchange for a portion of the judicial award.
An encumbrance, lien or financial obligation that is attached to some property. For example, a person who files a lien against a piece of property might say that he has a charge against that property.
Assets that are movable and not attached to land or real property.
An interest that is given by one person in, say, a piece of property such as a piano to another person to secure a debt.
The right of property in intangible things which are not in one's possession, but that are enforcible through legal or Court action, such as debts, insurance claims, shares in a company, pensions and salaries.
Evidence which may allow a judge or jury to deduce a certain fact from other facts which have been proven. In some cases, there can be some evidence that can not be proven directly, such as with an eye-witness. And yet that evidence may be essential to prove a case. In these cases, the lawyer will provide the judge or jury with evidence of the circumstances from which a jury or judge can logically deduct, or reasonably infer, the fact that cannot be proven directly; it is proven by the evidence of the circumstances; hence, "circumstantial" evidence.
An order of a court to either do a certain thing or to appear before it to answer charges. The citation is typically used for lesser offences (such as traffic violations) because it relies on the good faith of the defendant to appear as requested, as opposed to an arrest or bail.
Law inspired by old Roman Law, the primary feature of which was that laws were written into a collection; codified, and not determined, as is common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow.
Provable In Bankruptcy:
Any claim or liability that is provable in a proceeding under the Bankruptcy and Insolvency Act.
When different persons combine their lawsuits because the facts and the defendant are so similar. This is designed to save Court time and to allow one judge to hear all the cases at the same time and to make one decision binding on all parties.
An English case which established a presumption that monies withdrawn from a money account are presumed to be debits from those monies first deposited; first in, first out. The proper citation is Devaynes v. Noble (1816) 1 Mer. 572) and the presumption is not applicable to fiduciaries, who are presumed to withdraw their own money first, and not trust money.
A maxim of the law to the effect that any person, individual or corporate, that wishes to ask or petition a court for judicial action, must be in a position free of fraud or other unfair conduct.
A certificate issued by a statutory body signifying that they are not owed any money in regards to a certain file or company.
A right that belongs to the client of a lawyer that the latter keep any information or words spoken to him during the provision of the legal services to that client, strictly confidential. This includes being shielded from testimony before a court of law.
An amendment to an existing will. Does not mean that the will is totally changed; just to the extent of the codicil.
Property that has been given or committed in order to guarantee a loan.
A descendant that is not direct, such as a niece or a cousin.
A rule of tort law which holds that the tort-feasor is not allowed to deduct from the amount he or she would be held to pay to the victim of the tort, any goods, services or money received by that victim from other "collateral" sources as a result of the tort (eg. insurance benefits).
A secret agreement and co-operation for a fraudulent or deceitful purpose.
Commissioner for taking affidavits in a province as authorized by provincial statute.
A written order of a Court directing that someone be confined to prison, normally issued as a result of non-compliance with a previous Court order.
Judge-made law. Law which exists and applies to a group on the basis of historical legal precedents developed over hundreds of years. Because it is not written by elected politicians but, rather, by judges, it is also referred to as "unwritten" law. Judges seek these principles out when trying a case and apply the precedents to the facts to come up with a judgement.
A person (defined under the Income Tax Act) who is cohabitating with an individual in a conjugal relationship and has been so for a period of at least one year.
That date on which the transfer of title is to be made.
A contractual condition that is required to be met before a contract can be completed.
A condition in a contract that causes the contract to become invalid if a certain event occurs.
Divorces can be obtained by showing a fault of the other spouse, such as adultery or cruelty. But a court will refuse to grant a divorce based on these grounds if there has been "condonation", which is the obvious or implied forgiveness of the fault.
The person to whom the court grants the power to negotiate a sale, subject to court approval, in a forclosure proceedings. If there may be equity in the property the conduct of sale will be given to the owner. If not it could be given to the mortgage holder.
The circumstance of a person who finds that one of his activities, interests, etc. may have a contrary interest on another of his interests or activities.
To comply with a specified use, particularly involving real estate zoning by-laws.
A result achieved through negotiation whereby a hybrid solution is arrived at between parties to an issue, dispute or disagreement, comprising typically of concessions made by all parties, and to which all parties then subscribe unanimously as an acceptable resolution to the issue or disagreement.
Latin term meaning an agreement, a meeting of the minds between the parties where all understand the committments made by each. This is a basic requirement for each contract.
Under common-law, one of the three criteria that have to be met before a contract is binding. Refers to money or payment of money or some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.
To hand over or give poccession of an asset to someone.
The legal process of interpreting a phrase or document; of trying to find it's meaning. Whether it be a contract or a statute, there are times when a phrase may be unclear or of several meanings. Then, either lawyers or judges must attempt to interpret or "construct" the probable aim and purpose of the phrase, by extrapolating from other parts of the document or, in the case of statutes, referring to a interpretation law which gives legal construction guidelines.
Under the employment law of some jurisdictions, judges will consider a situation where there has been a fundamental violation of the rights of an employee, by the employer, so severe that the employee would have the right to consider himself as dismissed, even though, in fact, there has been no act of dismissal on the part of the employer. For example, if an employer tries to force an employee to accept a drastic demotion, the employee might have a case for constructive dismissal and would be able to assume that the employment contract has been ended and seek compensation from a court.
A trust which a court declares or imposes onto participants of very specific circumstances such as those giving rise to an action for unjust enrichment, and notwithstanding the lack of any willing settlor to declare the trust.
A natural person who is bankrupt or insolvent and whose aggregate debts, excluding any debts secured by the person's principle residence, do not exceed $250,000 or such other maximum as is prescribed.
Goods that are used or acquired for use primarily for personal, family or household purposes.
A simplified form of Proposal available to debtors owing consumer and commercial debt less than $250,000.00, excluding a mortgage on the principal residence.
That fee which a person, often a lawyer, is entitled to per agreement upon the successful completion of some action. For example, a lawyer can take on an action for, say, 25% of the proceeds which he would only be entitled to if the action is successful.
The setting off of mutual debt. For example, if a company owes $100 to another company that is owed $30 by that company in turn, the company is allowed to set off the $30 against the $100 and make a net payment of $70.
An oral or written agreement between two or more parties which is enforceable by law. In order to be valid, a contract requires an offer, an acceptance of that offer and, in common-law jurisdictions, consideration.
The negligence of a person which, while not being the primary cause of a tort, nevertheless combined with the act or omission of the primary defendant to cause the tort, and without which the tort would not have occurred.
The action of conversion is a common law legal proceeding for damages by an owner of property against a defendant who came across the property and who, rather than return the property, converted that property to his own use or retained possession of the property or otherwise interfered with the property.
That act which transfers property from one person to another.
An obsolete co-ownership mechanism of English law where property, if there was no will, always went to the eldest son. If there was no male heir, the property went to all the female children collectively as a form of co-ownership.
The exclusive right to produce or reproduce (copy), to perform in public or to publish an original literary or artistic work. Many countries have expanded the definition of a "literary work" to include computer programmes or other electronically stored information.
Individuals are required to take counselling from trustees or administrators when they file for bankruptcy or make consumer proposals. If they do not take counselling they may not be discharged from bankruptcy or have their consumer proposal satisfied.
A rather archaic term used to denote the court which has the right to hear shipping, ocean and sea legal cases. Also known as "maritime law".
A written document in which signatories either commit themselves to do a certain thing, to not do a certain thing or in which they agree on a certain set of facts. They are very common in real property dealings and are used to restrict land use such as amongst shopping mall tenants or for the purpose of preserving heritage property.
A person to whom money, goods or services are owed by the debtor.
That person who has a claim, preferred, secured or unsecured, provable under the Bankruptcy and Insolvency Act.
Synonymous with adultery. In old English law, this was a claim for damages the husband could institute against the adulterer.
That point in time where a contract or agreement triggers certain clauses in that contract. For example, when a bank appoints an Agent pursuant to its General Security Agreement, all the assets of the company in question, that are not secured by other creditors, are captured by that General Security Agreement.
est Solum, Ejus est Usque ad Caelum et Ad Inferos:
Latin: who owns the land, owns down to the center of the earth and up to the heavens. This principle of land ownership has been greatly tempered by case law which has limited ownership upwards to the extent necessary to maintain structures. Otherwise, airplanes would trespass incessantly.
Latin for gross negligence. It is more than just simple negligence and includes any action or an omission in reckless disregard of the consequences to the safety or property of another.
The yard surrounding a residence or dwelling house which is reserved for or used by the occupants for their enjoyment or work. It is a term one might come across in a search warrant which calls for a search of the residence its' curtilage of a particular person.
Means the charge and control of a child including the right to make all major decisions such as education, religious upbringing, training, health and welfare. Custody, without qualification usually refers to a combination of physical custody and legal custody. For other varieties of custody, see joint custody, split custody and divided custody.
"As near as may be": a technical word used in the law of trusts or of wills to refer to a power that the courts have to, rather than void the document, to construct or interpret the will or a trust document "as near as may be" to the actual intentions of the signatory, where a literal construction would give the document illegal, impracticable or impossible effect.