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This Latin expression refers to the reasoning accomplished when an idea or argument is better understood by considering a contrasting idea or argument. This method of reasoning is often referenced in jurisprudence.
This Latin expression means “with greater reason”. It is often presented as a legal argument, aiming to demonstrate that given the appropriate presence of a certain conduct or the appropriate use of a certain rule in a specific situation, the application of that same conduct or of that same rule is even better justified in the present situation.
The Aboriginal peoples are described as the natives who have lived on territories inhabited since time immemorial by their ancestors and who were present on these territories long before European colonisation.
Aboriginal law is a branch of law concerning the relationship between the federal or provincial State and the Aboriginal peoples in Canada.
There is abuse of process (or procedural impropriety) when a person makes use of legal proceedings in an excessive or unreasonable manner. This is often done in bad faith or with the intention of causing prejudice to the adverse party. There is also abuse of process when a party, ignorant to the clear fact that his claim is unfounded or frivolous, continues his legal proceedings. In all cases, the abuse of process is equivalent to the abuse of rights.
The term "abuse of rights" refers to the situation in which a person exercices otherwise legitimate rights in an excessive or malicious manner.
Acceptance is one person's compliance with the terms of an offer made by another. It demonstrates a consent to the proposal made and the willingness to be binded by the contract. Unless the law requires that the acceptance take a specified form, it can either be express or implied.
Accession is a method by which movable or immovable property can be acquired. This term is also used to refer to that which is produced by, joined to or united with a given property. By accession, the owner will obtain the right to own all that is subsequently added to his original property.
The law defines the term "accessory" as being a thing that, given its dependance on and its relation to another thing (the principal), shares with it, a similar legal status. Consequently, the principal right will often be followed by the right that is accessory to it, and both will be subject to the same rules. For example, in the case where the owner of an appartment building rents out one of his appartments, the resulting lease will be considered an accessory to the right of property that the owner exercices on the appartment building. Upon the sale of the appartment building, not only the property right but also the accessory lease will be transferred to the buyer.
"Accipiens" is a word of Latin origin, referring to the person who, given the existence of a contract to this effect, obtains or awaits the performance of an obligation or having performed his own obligation, awaits the performance of a correlative obligation by the other contracting party. In this legal relationship, the term “solvens” designates the person who must perform the correlative obligation for and in benefit of the accipiens.
The law recognizes the term “accommodation” as referring to the conciliation, the arrangement or the compromise that two or more persons must achieve in order to avoid all possible legal action.
This expression is generally used in civil procedure and refers to the decision made by the defendant to not object to or contest a court action brought against him.
The term "acquiescence" is defined as the decision made by a person to comply with an offer made to him or to agree without protest to a court action brought against him. It implies an acceptance.
The term "acquisition" is defined as the act of acquiring ownership of a given property by any means including by purchase, gift or exchange, or the act of becoming the holder of a right on a given property.
Civil law defines the term "act" as being a written and often, signed document, by which persons contract obligations or recognize rights.
This term designates all conduct, honest or condemnable, generally used in order to obtain an unjust advantage or to achieve any other purpose.
The action in warranty is the legal procedure usually followed when the defendant to a lawsuit believes that a third person should be held liable for the damages that may eventually be awarded to the plaintiff. By instituting an action in warranty, the defendant takes the person who he believes should be held liable in the circumstances before the competent court. For example, the insured, having caused a car accident resulting in material damages, may institute an action in warranty in order to set up the final judgement against his insurance company so that all monetary damages awarded to the plaintiff may ultimately be paid by the insurer.
"Ad hoc" is a legal term literally meaning “for this”. It generally signifies a solution designed for a specific situation that is not intended to be adapted to any other purpose. For example, an ad hoc judge is a judge who has been specifically selected to hear a particular case. In Québec civil law, the expression “ad hoc tutor” is often used; this refers to a temporary tutor who has been selected to represent a minor or a person of full age, incapable of giving his consent, whose regular tutor, due to the existence of a conflict of interest, cannot properly represent him.
A contract is a contract of adhesion when its essential stipulations are imposed or drawn up by one of the parties, on his behalf or upon his instructions, and are not negotiable at the time of the contract's conclusion. Insurance policies are generally considered to be contracts of adhesion.
An adjournment signifies the postponement of a given event to a later date. In civil procedure, this term is often used to describe the decision, taken by the court, to interrupt a hearing and to defer it until a later time. In this situation, the judge will have adjourned the hearing.
Administrative law is a branch of public law concerning the relationship between the State and its citizens. It can be compared to civil law, which instead concerns the relationship between citizens.
In civil law, all evidence and proceedings that respect the rules of civil procedure and that meet the formalities required by law are admissible.
The term “admission” is defined as a party’s acknowledgement of the genuineness of an alleged fact or situation, thus reducing the adverse party’s burden of proof. An admission can be judicial or extrajudicial by nature. The former type of admission is made in the same legal proceedings for which it is admitted into evidence, such as within a written pleading or during witness testimony. The latter type of admission is instead made outside the legal proceedings in question; a declaration made to a third person could therefore constitute an extrajudicial admission. A person can never admit the law by admission; only a fact or an act can be admitted.
"Affidavit" is a term originating from the legal vocabulary of Ancient Rome and referring to a written statement supported by the oath of the deponent and received and attested by any person authorized for that purpose by law. This statement can be used during the legal process.
The term "alienation" refers to the transfer of property or of a right from one owner or holder’s patrimony to another’s patrimony. Alienation usually results from the sale, the assignment, the legacy or the gift of a given property to another.
An "allegation" can be defined as a statement asserting facts that have not yet been proven. It constitutes a legal claim that one party aims to enforce, that the adverse party aims to dispute, and that the court must still examine in order to determine its validity.
When a legal person is represented by a natural person, usually a mandatary or an employee, this individual becomes the legal person’s alter ego. As the “directing mind” of the corporation, the alter ego can be held personally liable for the acts concluded in the name and for the benefit of the corporation. For example, the sole administrator who acted for a corporation declared guilty of fraud can also be personally accused of fraud.
The amendment is a proposed modification to a written text (usually a law, a bill or a regulation), submitted to a deliberative body, such as the National Assembly or a municipal council.
In civil procedure, it is possible for a party in a lawsuit to amend his legal proceedings by modifying the allegations that they contain. The adverse party may then oppose to the amended proceeding and may even require that the proceeding in question be instead amended by the removal of certain allegations that he believes to be frivolous or defamatory.
The term "annulment" refers to the sanction used to address the invalidity of a juridical act or a legal proceeding. This sanction is notably applied when the act or the proceeding fails to satisfy all legal requirements or when a fundamental condition to its existence, for example, the free and enlightened consent of the parties involved, is not respected. When consent is vitiated following a false declaration, an error or because one of the parties was incapable of consenting at the time that the act was concluded, the act in question is likely to be annulled.
To appeal means to resort to or to request that a case be transferred to a higher court for rehearing. This is done in hopes of obtaining the reversal or reformation of a decision or judgement.
The appearance is the act or the proceeding by which a party appears before a court in order to face charges, to testify, to be heard concerning the facts of a given lawsuit, to make a declaration or to provide expert testimony.
In order to inscribe a case for proof and hearing, one must file an application for setting down (or an inscription form) delivered by the court’s clerk. The clerk will only delivery this application once both parties have served and filed in the office of the court a declaration requesting that the case be placed on the roll. This declaration must be accompanied by a list of the exhibits that have been communicated to all other parties involved.
The term "arbitration" is defined as the settlement of a dispute by one or several third parties, who are referred to as "arbitrators". In collective labour relations, the victims of a grievance may have their complaints submitted, by their association, to an arbitrator, in which case the resulting procedure is referred to as the "arbitration of grievances". In civil law, the parties to a given contract may also stipulate that all disputes arising from the application of that very contract will be submitted to an appointed and impartial arbitrator, rather than to the court system.
The term "asset" refers to all property constituting a natural or a legal person’s patrimony. On the contrary, the term “liability” refers to all debts affecting a natural or a legal person’s patrimony.
The term “assignment” can be defined as the judicial operation by which a property or a right is transferred from one person’s patrimony to another’s patrimony, notably by transmission, by exchange, by sale, by gift, etc. The person who transfers the property or the right is referred to as the assignor, whereas the person who benefits from the assignment is better known as the assignee.
Audi alteram partem is a Latin phrase which literally means "hear the other side". It is a principle of fundamental justice, aiming to ensure that no person be judged without a fair hearing and without the right to respond to the evidence presented against him. Audi alteram partem not only includes the right to know and understand the adverse party’s arguments, but also the fair opportunity to challenge these arguments by summoning one’s own witnesses or by being represented by a lawyer.
An authentic act is an act that has been received or attested by a competent public officer according to the laws of Québec or of Canada. To be authentic, the act must respect the formalities required by law.
To authenticate means to make an act authentic by following all the formalities required by law or by regulation. The authentication of an act may also be accomplished by a declaration by its author, confirming that the act in question does indeed come from him.
The expression “res judicata" refers to the definitive decision rendered by a court in order to settle a lawsuit and to put an end to the litigation.
However, in the case where one of the parties to the given lawsuit decides to appeal the decision, the case is considered to be pending before the Court of Appeal and the judgement rendered in first instance maintains its authority of res judicata until the Court of Appeal decides otherwise.
This French term describes the person who is the holder of a right or an obligation acquired from another person, his author, and literally means “having right to”. The author is therefore the person for whom the right is being held. For example, the seller of a motor vehicle is the buyer’s author, as it is the buyer who, having acquired the vehicle from the seller, now holds its right to property. The buyer can therefore be referred to as the “ayant droit”.
Initially, the term “bar”, as the term “barrister”, made reference to the wooden railing marking off the area around the judge’s seat in a courtroom, the area in which all lawyers would stand to plead. Today, this same word is simply used to designate the legal profession.
According to its most common definition, however, the term “bar” refers to an association or a professional body of lawyers within a specific region. These lawyers, as members of the bar, are registered on the “Roll of the Order of Advocates” (the official list of all members registered to the bar) and are the only ones legally authorized to practice law; for example, the Barreau du Québec.
According to its general legal definition, the term “benefit” refers to a right, a prerogative or a privilege acquired by way of the law.
Commercial law, however, uses this term in order to designate a profit or an economic gain obtained through the carrying on of a business.
Civil law describes the benefit of discussion as being a right belonging to the surety (the person who binds himself to a creditor, by agreeing to perform all contractual obligations that the principal debtor fails to fulfill). This right allows the surety to avoid all civil action that may be personally taken against him, by requiring that the property of the principal debtor first be applied in satisfaction of the obligation in question. In practice, however, many creditors require that the surety renounce to the benefit of discussion within the suretyship contract.
Civil law dictates that when several persons have accepted to act as sureties, each is bound for the whole debt. However, it is possible for a surety sued for the totality of the debt in question to invoke his right to the benefit of division, a right requiring the creditor to divide his action and to reduce it to the amount of the share and portion of each surety.
The benefit of subrogation consists of the surety’s right to have a civil action, initiated by the creditor, dismissed on the basis that the creditor, through his recourse, has made the operation of subrogation impossible. See the definition of the term “subrogation” in the present glossary.
The setting up of boundaries occurs when the dividing line between two contiguous lands is determined by the fixing of material signs, referred to as “boundary markers”. The setting up of boundaries permanently establishes the limits of the two properties involved, notably when their extremities are put into question. Boundaries are generally determined by a land surveyor who will draw up minutes concerning his findings and will later enter them into the land registry.
The physical fixing of boundary markers is referred to as “demarcation”.
The abusive clause creates a significant imbalance between the contractual parties' rights and obligations by generally conferring an excessive or an unreasonable advantage to the more powerful or the more economically advantaged party.
A clause that so departs from the fundamental obligations arising from the rules normally governing the contract, that it changes the very nature of that contract is said to be an abusive clause.
The term “arbitration clause” designates the stipulation, found within a given contract, by which the parties agree to refer any disputes arising from the interpretation or the application of their contract to an arbitrator.
The external clause is a contractual clause that is not stipulated within the contract to which it is part, but is rather stipulated in a second legal document referred to by the contract in question. The existence of this clause is often expressly brought to the attention of the adhering party at the time of the formation of the contract.
A hypothec gives a creditor not only a non-possessory security interest in his debtor's real property, whether it be an immovable or a movable property, but also a preferential right to have his claims paid through the selling of that property if ever his debtor is in default. The hypothecary creditor is therefore the creditor who benefits from this right. There may be several creditors holding a hypothec on the same property, in which case, they shall be collocated in the same order in which their respective hypothecs were published. This order is established according to the date, hour and minute of registration of the hypothec in the land register (when the hypothec is immovable) or in the register of personal and movable real rights (when the hypothec is movable).
A municipal court is the court that has jurisdiction only on the territory of the municipality in which it is located. It generally hears cases resulting from the violation of a municipal by-law, such as in matters concerning zoning, parking and traffic, animals, public security, etc.
The non-competition clause is a stipulation, usually found within a contract of employment, by which an employee agrees to not compete with his employer nor to participate in any enterprises that compete with him, following the termination of the contract.
To be valid, however, the non-competition clause must be limited in time, in geographical area and in type of employment. Otherwise said, this clause will be considered illegal and thus, unenforceable, if it unreasonably limits the employee's right to work.
A penal clause is one by which the parties assess anticipated damages by stipulating that the debtor who fails to perform any obligation arising from the terms of the contract will pay a penalty to his creditor.
Therefore, a clause, stipulating that any party failing to live up to his contractual obligations will pay his creditor a sum having a value generally superior than his non-performance, will be considered penal by nature.
The prior creditor is the creditor who holds, in accordance with the law, the right to be preferred over his debtor's other creditors, even those who hold hypothecs. The Civil Code of Québec defines the following claims as prior claims: legal costs and all expenses incurred in the common interest, the claim of a vendor who has not been paid the price of a movable sold to a natural person, the claims of persons having the right to retain movable property, the claims of the State for amounts due under fiscal laws and the claims of municipalities and school boards for property taxes.
By stipulating, within their contract, a resolutory clause, the parties may indicate the situations in which their contract will be resolved. The resolutory clause thus allows either party to invoke the termination of the judicial act in question, following the other's failure to perform one of his contractual obligatons.
This type of clause is often found within a property purchase agreement.
The Superior Court is the court of original general jurisdiction in the province of Québec; it hears, in first instance, all cases not exclusively assigned to another court by a specific provision of the law. In civil matters, the Superior Court has jurisdiction to hear all suits in which the sum claimed is greater than $70 000. It also has jurisdiction to hear lawsuits based on family, administrative or bankruptcy law. In criminal and penal law, trials by jury and appeals concerning summary conviction offences take place before the Superior Court.
An unsecured creditor is a creditor who does not have the benefit of a security interest in the assets of his debtor (as opposed to a prior or a hypothecary creditor). In other words, the unsecured creditor does not benefit from a preferential right over his debtor's secured creditors. An unsecured creditor can also be referred to as an ordinary creditor.
The Québec cadastre maps all properties on the province’s territory and identifies them by assigning each one a corresponding lot number. This public survey shows all details of ownership, notably the measurements, the superficies, the boundaries, and the location of each property.
The cadastre is an official register retaining several maps and documents prepared by land surveyors. The information thus contained can also help to define the value of the properties in question as a basis for taxation.
In law, capacity refers to the ability, capability or fitness required to acquire or exercise a given right. When an individual has the necessary capacity to do so, he can legally contract, take responsibility for his actions and commit his personal assets, if in default. On the contrary, the term "incapacity" can be defined as the judicial incapability preventing an individual from acquiring or exercising his rights himself; this is generally the case for minors and protected persons of full age who can only act if represented by a tutor or curator.
In succession law, the testator must necessarily have testamentary capacity in order for his will to be considered valid.
The expression “case by default” can be used to refer to the situation where the defendant to an action fails to appear in court or to plead. In this situation, the plaintiff may inscribe the case for judgement by default or for proof and hearing before the court. A judgement will then be rendered.
A case concerning the State is a case taken directly against the State or one of its agencies or ministries. This expression can also refer to an action not necessarily taken against the State or one of its organisations, but rather an action whose final judgement may have an impact on State affairs.
In this expression, the term “case” signifies the court instance and the development of the procedural process. A case ready for judgement therefore refers to the case in which the trial has been completed and which has been taken under advisement by the court.
The advisement is the period following the presentation of the arguments and the evidence by the parties, but preceding the delivery of the judgement. It is the period during which the court aims to reach a final decision. The case that is taken under advisement is one where the hearing has been finalized and where the parties now await a judgement.
At this stage of the proceedings, the competent court will isolate itself in order to allow for reflection and thorough examination of the issues in litigation. The case taken under advisement is therefore studied outside the presence of the parties involved, of their attorneys, of intervening parties and of all third persons.
Finally, when the delivery of a judgement has been extended to a later date, the case is also considered to have been taken under advisement.
The rules governing civil liability require the existence of a fault (for example, the failure to clear the snow from a public staircase), an injury (the bodily and material injury resulting from the accident), and a causal relationship between the two (the fact that the damages suffered, following the victim’s fall down the staircase, are attributable to the proprietor’s failure to clear the staircase). The presence of a causal link between the fault committed and the injury suffered is therefore necessary to prove civil liability.
The cause of action can be described as the very basis for the filing of legal proceedings. The term “cause of action” thus refers to all facts that are sufficient enough to demand judicial attention and to give rise to a person’s right of action.
A lawyer, who acts on behalf of or defends a person in legal proceedings, represents his client before the court. Consequently, when a lawyer decides to withdraw himself from a case, he ceases the representation of the client in question. The Code of ethics of advocates establishes the situations where a lawyer should cease representing his client.
Certified (or registered) mail is a service offered by most post offices, allowing the sender to track the sent mail, as to assure safe delivery, and to obtain written proof once it has been sent to and recieved by the recipient. Legal documents are often transferred by means of certified mail.
The expression “change of civil status” refers to the situation where a party cannot benefit from the same status as he did at the time he instituted legal proceedings or at the time that the action was taken against him. For example, a minor who has reached full age, a bachelor who has contracted a marriage or a civil union, a person who has become incapable of consenting as a result of a severe illness or accident, etc.
A clause is a section, a phrase or a paragraph found within a legal document (such as a contract, a regulation or a law). The clause, as an essential part of any judicial act, specifies the rules that the act is subject to and identifies its fundamental elements and its terms of application.
In the case where the clause is found within a contract, a convention or any other type of agreement existing between two or several parties (a contractual clause), the term “stipulation” can also be used. When the clause is found within a law (a legal clause) or a regulation (a regulatory clause) however, the term “provision” will instead be used. In effect, a contract stipulates and the law provides.
The Civil Code of Québec defines co-ownership as being the ownership of the same property, jointly and at the same time, by several people, each of whom is privately invested with a share of the right of ownership. Co-ownership is undivided when there is no physical division of the property in question; it is instead considered divided when the right of ownership is approportioned among the co-owners in fractions, each comprising a physically divided private portion and a share of the common portions.
The term "co-plaintiff" can be defined as any plaintiff, who joins forces with another or other plaintiffs in order to take legal proceedings against a defendant.
A code consists of a systematic and comprehensive compilation of laws, rules, or regulations that are consolidated and classified according to books, titles, chapters and finally, articles. The Civil Code of Québec respects this definition.
The codebtor is the person who, along with one or more other debtors, agrees to pay a debt or perform an obligation in benefit of a common creditor. Except in the cases where solidarity has been expressly mentioned, a codebtor will only be liable towards the creditor for his part of the debt. Consequently, the debt is considered to be a joint obligation.
In collective labour relations, the collective agreement is the written accord existing between an employer or an employers' association and one or more certified associations. It determines the conditions of employment and the social benefits that will be applied to the employees concerned.
The law provides that, in certain circumstances, proof by testimony in order to establish the existence of a judicial act is only admissible when the party, aiming to demonstrate the very existence of the judicial act, first establishes a commencement of proof. The party in question thus has the burden of establishing, before the court, that given all supporting evidence presented, the proof by testimony is worth hearing and considering.
To constitute a commencement of proof, the supporting evidence put forward must imply the likeliness of the judicial act's existence. Likeliness or probability is therefore the standard that best describes the commencement of proof.
The term "commissioner" can be used to define the commissioner of oaths, as in the person who is authorized by law to administer oaths or solemn declarations.
The term can also be used to refer to a commissioner of the court, who has the necessary power and responsibility to administer laws or rules that relate to a specific subject matter over which he has authority. This commissioner is usually appointed to render decisions on behalf of a public or parapublic organisation on the basis of information that he has recieved and examined (for example, the commissioner for the Refugee Protection Division of the Immigration and Refugee Board and Immigration Appeal, the Lobbyists Commissioner, etc.).
This term refers to the commissioner appointed by the Minister of Justice in order to administer oaths or selomn declarations in one of the province's judicial districts.
The expression "common law" is often used to designate the law applicable in countries that have adopted the Anglo-Saxon judicial system. In fact, Canada, with the exception of the province of Québec where the French civil law system prevails, is a common law country.
In addition, the expression "common law" can also be used to refer to the principles and rules embodied in case law, rather than in legislative enactments.
The term "exhibit" refers to all documents filed in the office of the court during legal proceedings. A party to a given lawsuit must necessarily communicate to the other party involved all exhibits supporting his claim that he intends to refer to at the hearing. This being said, one party cannot take the other by surprise by invoking an exhibit that was not communicated to the other prior to the beginning of the hearing.
As an alternative method of resolving disputes, conciliation can be explained as the process of adjusting or settling a given dispute, through extrajudicial means, in hopes of reaching a compromise. Following the failure of negotiations between the parties, conciliation aims to help all involved parties reach a mutual agreement and avoid taking the case to trial. It is often used to settle labour disputes and divorce proceedings.
However, it is only in the situation where the parties ask that a third person intervene that a conciliator will be nominated to oversee the process of conciliation; generally, the conciliator will play a less active role than will the mediator in cases involving mediation.
The term "conclusions" can be defined as the final results that the parties to a given lawsuit aim to achieve through the institution of legal proceedings (for example, the compensation for an injury suffered, the performance of a contractual obligation, the court order to do or to cease doing something specific, etc.).
In civil law, a condemnation is a decision rendered by a civil court, by which the losing party is enforced to perform one or several obligations. For example, a party to a lawsuit may be condemned to pay damages, or to accomplish or to cease accomplishing a specific act, etc.
In criminal law, a condemnation is the decision rendered by a criminal court, by which the accused is convicted of a criminal offence and by which the applicable sentence or penalty is determined.
This expression refers to the condemnation of a party, upon completion of the legal proceedings, to pay all or part of the court costs incurred by the adverse party.
This condemnation can be described as the decision, by which a court imposes a monetary penalty upon a person who committed a criminal offence.
The clause by which the performance of an obligation depends on the occurrence of a future and uncertain event is referred to as a condition. The clause in question may make reference to a suspensive condition; for example, a person may promise another a monetary gift under the condition that the latter gets married. In order for this obligation to be enforceable, there must be a marriage, that is a future and uncertain event. The condition is considered suspensive, as the performance of the obligation (the payment of the monetary gift) is suspended until the condition is fulfilled.
On the other hand, the clause may instead make reference to a resolutive condition; for example, a commercial lease may stipulate that, in the situation where the lessee fails to pay his rent, the lease will be resolved. In order for the resolution of the contract to occur, the lessee must therefore default on the payment of rent.
There is confusion when an individual acquires a new judicial situation that absorbs the rights and obligations that existed in accordance with his previous judicial situation. In fact, where the qualities of creditor and debtor are united in the same person, confusion results, thus extinguishing the obligation in question.
There is therefore confusion when a person becomes his creditor's sole heir or when a lessee purchases the commercial building he once rented.
The term "consent" can be defined as the voluntary acquiescence to the proposal of another; it is the act or result of reaching an agreement through the concurrence of minds. In order to be recognized by the law, consent must always be free and enlightened.
When the willingness to accept is given in an apparent manner, consent is express (for example, the signing of a written agreement). Consent is instead considered to be tacit when it can be presumed from the occurence of certain elements implying voluntary acceptance, such as a gesture (for example, a handshake) or an unequivocal attitude (for example, the acceptance of a delivery).
A conservatory measure is a decision taken by a judge, following a creditor's request, to place property belonging to the debtor under judicial control in order to ensure the efficiency of the mesures of execution taken once all delays have expired and all judicial recourses have been exhausted.
The term "conservatory" is often used to make reference to an urgent situation, such as when it becomes urgent to conserve, to safeguard or to preserve what risks being eliminated or annulled. This being said, conservatory measures aim to protect property from an imminent danger. Indeed, one will ask that conservatory measures be taken when he fears that the property belonging to his debtor risks being squandered, destroyed or damaged.
The term "consumer" can be defined as the individual who purchases goods and services for his personal use. The consumer must therefore be distinguished with the individual who instead purchases goods and services for the operation of his enterprise, as well as with the merchant, who offers goods and services to the general public and profits from all resulting sales.
The term "merits" (or "substance") must be distinguished from the term "form" (or "format"), as the latter concerns all legal proceedings and their respective formalities. The term "merits" instead makes reference to the fundamental issues raised by the conflict in question, the content and legitimacy of the action, and the fact that the case is well-founded in law. The expression "contestation on the merits" therefore applies to all situations where a party chooses to contest the legal validity of a lawsuit.
The contract is an agreement by which a party gives his voluntary consent to perform a prestation in benefit of another contracting party, thus obligating himself towards the latter. In general, the contract creates reciprocal obligations between the parties involved, but may, in other cases, modify or extinguish obligations.
A party's failure to respect his contractual obligations gives all other contracting parties a right to recourse; consequently, the non-performance of an obligation can be assimilated to a violation of a legal duty. In fact, the contract, enforceable by nature, is often described as "the law binding the parties".
The term "contract" can also be used in order to refer to the tangible document on which clauses, defining the rights and the obligations of each party and the conditions to which the agreement is subject, are stipulated. This written document, often enclosing the signatures of the contractual parties, demonstrates a meeting of the minds. It therefore materializes the contract and can be used as evidence before a court.
A cooperative can be described as an association or corporation established for the purpose of providing services on a non-profit basis to its members who own and control it.
The expression "counter letter" can be defined as the secret contract by which dispositions found within an apparent contract are contradicted, struck down or modified. For example, two individuals may conclude an apparent contract stipulating the sale of a given property for a specific price, as well as a counter letter, that instead aims to define the actual price for which the property was sold. If faced with a dispute arising from the existence of a counter letter, the court must considered the true intent of the parties involved and the negative effects that the counter letter may have on third perons in good faith.
The term "countersignature" can be defined as the signing of a document, following its signing by an official authority. These double signatures allow for the authentication of the authority's signature as well as the confirmation that the content of the document has been approved by all who have signed it. For example, the pre-trial minutes are signed by the parties involved and are countersigned by the presiding judge.
The Court of Appeal is the highest court within the province of Québec; its decisions can only be contested before the Supreme Court of Canada. The Court of Appeal, usually composed of a panel of three judges, has the necessary jurisdiction to review, on appeal, the decisions rendered by the Superior Court or the Court of Québec in matters concerning civil law, criminal or penal law and adminstrative law.
The Court of Québec has the necessary juridiction to hear, in first instance, all civil suits in which the sum claimed is less that $70 000, as well as criminal and penal suits and cases involving youth protection. In addition, the law provides that certain administrative decisions may be contested, on appeal, before the Court of Québec.
The creditor is the person who holds a claim or a right against another person, known as the former's "debtor". The debtor must therefore satisfy his obligation in benefit of the creditor, such as paying him a sum of money, providing him with a specific service, etc.
A cross-examination consists of all questions asked by a given party to the witness who was called to testify on behalf of the adverse party, in order to further develop or to clarify the initial testimony given during his direct examination. On the other hand, a direct examination (or examination in chief) consists of all questions asked to a witness by the party who produces him.
A cross-examination is limited to the subjects dealt with during the examination in chief and aims to highlight the contradictions and the inconsistencies of the testimony rendered, as well as to weaken or eliminate the credibility of the witness in question.
When an individual's mental faculties are altered or when, following a severe illness or old age, an individual is no longer autonomous enough to manage his property or personal life, the law provides that this individual may be placed under protective supervision. A relative will therefore be legally appointed as the individual's curator and will be entrusted with the administration of his property and with his representation in the contracting of all judicial acts. In the case where no relative or close friend can assume the role of curator, the Public Curator will take on this role.
The expression "motivated decision" is generally used in a context pertaining to administrative law. Several acts and by-laws specify that the decisions rendered by an administrative organism must be based on and justified by pertinent, intelligible and legally sound grounds.
The debtor can be described as one who owes a debt or the performance of an obligation to another, his creditor. More often than not, this debt is the direct result of a contractual obligation or the conclusion of a judgement, rendered in favor of the creditor.
The decision made on a legal point consists of the court's response to a question of law, rather than to a question concerning the facts of a given case.
The term "declarant" can be defined as one who makes a declaration before a judicial or governmental authority or one who, under oath or affirmation, gives an out-of-court testimony in a signed deposition. In theory, a declarant who knowingly lies is subject to the criminal charge of perjury.
The declaration is a solem act given before a judicial or a public authority and producing rights (for example, the declaration of birth or the declaration of death).
The term "declaration" can also be used to designate the testimony given before a court of justice, a police officer or a public authority.
It can also be used to refer to statements that fraudulently aim to affect or force contractual relations. This is notably the case when an insurer produces a false declaration in hopes of illegally obtaining insurance proceeds, or when a vendor makes a false declaration in order to convince an uninformed person to quickly conclude a contract of sale.
In civil procedure, declinatory exceptions can be described as the measures used in order to demonstrate that the court before which the plaintiff has instituted his legal proceedings does not have the necessary jurisdiction to render judgement, either because the subject matter in question does not fall within the realm of its jurisdiction or because the residence of the defendant justifies that the case be heard elsewhere. The Code of civil procedure provides that the defendant who is summoned before a court other than that before which the suit should have been instituted may ask that it be referred to the competent court or that it be dismissed.
The term "decree" can be defined as an administrative and unilateral act, taken by the executive branch of government, in accordance with its legislative power. The decree can be general and impersonal; it may also be individual by nature.
What is now referred to as a "decree" was previously referred to an "order in Council".
Once the motion to institute proceedings is served to a given person (the defendant), he must appear in court within ten days from the service of the notice. In the event where he fails to do so, the plaintiff may ask that a judgement by default be rendered against the defendant. In this case, the judge will render a decision, usually in favor of the plantiff, without first hearing the parties.
If the defendant is in default to plead, by failing to or refusing to file his defence within the delay agreed to by the parties, the plaintiff may ask the court to render a judgement for default to plead.
In this situation, however, the defendant must be given a two-day notice prior to the inscription of the case for judgement. No such notice is necessary if the defendant has failed to appear.
The defence includes all arguments of fact or of law that are invoked by the defendant to counter the plaintiff's action and to refute his cliams. In general, the defence constitutes the defendant's answer to the charges or claims made by the plaintiff within his motion to institute proceedings. In his defence, the defendant must admit to the allegations of the introductory motion that he knows to be true, deny those that he knows to be false, and ignore all others; he must also make mention of all arguments that he tends to invoke in order to contest the validity of said motion. All in all, the defence aims to strike down, all or some, of the conclusions sought by the plaintiff.
In civil law, the defendant is the natural or legal person who is summonded to appear before a court of justice, following a motion to institute proceedings that is filed against him by the plaintiff.
In criminal and penal law, the term "defendant" instead refers to the person accused of having committed a crime ou having infringed a law or by-law. In practice, however, lawyers and legislators alike tend to use the term "accused" to refer to this type of defendant.
In both cases, the defendant is the party against who the action or suit is brought.
In a given lawsuit, a defendant in warranty (or in guarantee) is the defendant called upon by the principal defendant in all cases where the latter believes that the former is liable, entirely or in part, for the injury suffered by the plaintiff.
For example, the buyer of a residence, having suffered injury caused by the discovery of a latent defect, may take action against his seller who, following the motion to institute proceedings, will become the principal defendant. This defendant, convinced that he is not entirely liable, may call into warranty (or into guarantee) his own seller and previous owner of the property in question, and invoke that the latent defect existed at the time of the initial sale and that the defendant in warranty should also be held liable for the resulting injury.
The expression "deprivation (or withdrawal) of an attribute" refers to a party's incapability of having a previously held right recognized or enforced by the justice system. For example, a contract of sale can stipulate that payment for the purchased property will be made in instalments over a specified period of time. In this same contract, an additional clause may stipulate that in the event where the debtor fails to make a payment on time, he will automatically be deprived of his right to continue instalment payments. Consequently, the creditor may require that the remaining debt be paid in full.
Legal disbursements include all sums of money, with exception to representation fees, that a lawyer will pay on behalf of his client for the duration of the legal services rendered. The amount spent will then be recuperated by the lawyer in question, at the end of the mandate or at the end of the court proceedings, and will be reimbursed by the client or by the adverse party who loses his case.
However, it is only in the situation where the court confirms the abusive or improper nature of the action or pleading that the party in fault will also be condemned to the adverse party's representation fees.
According to the Commission des normes du travail du Québec, the term "dismissal" can be defined as the permanent severing of the employment relationship at the employer's initiative for reasons related to the competence or the behavior of the employee. The dismissal must be distinguished from the layoff and the permanent layoff (see the definitions of these two words in the present glossary).
A lawsuit is dismissed when a court decides, after having considered the suit on the merits, that the plaintiff's arguments are inadmissible in law, because unfounded or unjustifiable by nature. A motion can be dismissed in whole or in part.
The Federal Court of Canada is the court hearing all cases falling under federal juridiction in first instance, such as claims made against the Canadians government, cases stemming from an area of civil law that is subject to federal regulation and requests for the judicial review of administrative decisions.
The expression “good faith” can be defined as the sincere belief, even if mistaken, that one is acting legally and within his rights. It also encompasses the desire to deal fairly with others at all stages of a contract; its negotiation, its conclusion and its execution. In general, good faith is presumed and it is therefore the burden of proof of the party contesting it to establish the existence of bad faith in the circumstances.
Commercial law defines "goodwill" as being the incorporeal property that increases the value of a given enterprise. It includes costumers, facility location and all measures that the enterprise may use in order to maintain and expand its business. Goodwill is therefore considered an asset.
The term "hearing" refers to a sitting of the court, during which the judge will hear the parties’ argumentation and all witness testimonies.
The law defines an "industrial accident" as being a sudden and unforeseeable event, attributable to any cause arising out of or in the course of the work of a person and resulting in an employment injury to him. Québec courts have generally interpreted the notion of a "sudden and unforeseeable event" largely, as to include several isolated events that have occurred over a longer period of time. This interpretation also allows for a better analysis of certain employment injuries. The Act Respecting Industrial Accidents and Occupational Diseases creates a presumption in benefit of the worker: when the injury occurs in his place of employment during work hours, it will be presumed that the worker suffered an employment injury.
An infringement is an encroachment, breach or violation of a right, law, regulation or contract. This being said, the term "infringer" can be defined as he who contravenes or disobeys.
The term "insolvency" can be described as a person's incapacity to pay his debts by the date upon which they become due, as well as the state of a person whose property and assets, even though inadequate to discharge his debts, are targeted by collective legal proceedings instituted by his creditors.
The term "insurance" can be defined as the operation by which a party (the insurer) undertakes the contractual obligation to make a payment, if an event covered by the contract occurs, to another party (the insured). The latter must, in turn, pay a premium or assessment to the insurer.
This expression literally signifies "without a valid will". It refers to the situation in which the deceased, having the lawful power to draft a will when alive, failed to do so. This situation is therefore described as being an intestate succession.
A judicial authority will issue a warrant for arrest when a given party or witness, who is duly summoned, fails to appear in court to testify. This warrant allows for the individual's arrest and orders that he be imprisoned until he has been interrogated by the adverse party's lawyer or by a judge.
The territorial jurisdiction of a court (the jurisdiction ratione loci) refers to the geographical area over which its authority extends. Territorial jurisidiction is determined by the conditions provided by law, but the competent court is generally in the district in which the defendant has his domicile or in the district in which the conflict first arose.
In the law of obligations, two or more persons can be jointly held liable towards one or more persons to perform a specific obligation (such as the payment of a sum of money). The term "jointly" is used to describe the situation where each person can only be held liable for his part of the obligation. The term "solidarily" is instead used to describe the situation where any of the responsible persons can be held liable for the totality of the obligation.
In administrative law, the expression "judicial review" signifies the process by which a party adresses a court of justice in hopes of having a decision, rendered by an administrative tribunal (for example, a tribunal created by a public body or a professional order), set aside or modified.
The term "jurisdiction" refers to the inherent authority of a court to hear a case and to render a judgement. Court jurisdiction is determined by law.
In commercial real estate, there exists two types of leases: the "gross lease" and the "net lease". The former type, usually used for smaller rental spaces, results in the lessee paying a flat rental price monthly, as would a residential tenant. The lessor, as owner of the immovable, must then pay all property expenses stemming from ownership.
The net lease provides that the lessee must pay, in addition to a monthly rent, a part of or the totality of all real estate taxes. Similarly, the net-net lease requires that the lessee pay not only a monthly rent and all real estate taxes, but also all insurance premiums corresponding to the space rented. Finally, the net-net-net lease transfers the totality of all expenses related to the rented space to the lessee.
The net, net-net and net-net-net leases are, without a doubt, advantageous to the lessor (and owner of the immovable in question), as he collects, in whole or in part, the operating costs resulting from the commercial use of the building. The lessor will thus obtain, as net earnings, a price set per square foot. It is very important that all commercial leases specify the costs that will be incurred by the lessee, rather than by the lessor.
The term “lapse” is used to describe the state of a judicial act that cannot produce any effects, due to the occurrence of an event previous to its formation. Although the lapsed act remains valid, its content cannot be carried out. This constitutes the legal sanction often resulting from the negligence or the disuse, by any given person, of a right or privilege.
The expression “leading case” is sometimes used to signify the juridical decision rendered by a court of appeal or by the Supreme Court of Canada. In general, the term “judgment” can be used to make reference to any decision regardless of the deciding court’s level of hierarchy, but may instead be used in order to specifically designate the decision rendered by an inferior court, such as Superior Court or the Court of Québec.
The law defines the term “lease” as the contract by which a person (the lessor or the landlord), owner of the property involved, agrees to provide another person (the lessee or the tenant), with the enjoyment and the use of the property for a certain period, in return for rent. A lease can either be residential or commercial by nature.
The lease is a contract by which one party, the lessor, loans movable property to another party, the lessee, for a fixed term and in return for payment. The lessee may then decide to acquire and become owner of the property in question.
The term "letters rogatory" can be defined as the formal written request made by one judicial body to another court in a different, independent jurisdiction to handle a specific proceeding or investigation that it cannot handle itself.
The term "litigation" can be defined as all actions susceptible of being brought before a court, as well as all lawsuits that can only be decided by the resolution of a legal question or matter by the justice system. Litigation notably refers to all judicial disputes and must be distinguished with cases that are not contested and that do not give rise to conflicting interests.
The merit of a motion or of a claim refers to its conformity with all applicable legal rules. It consists of ensuring the intrinsic value and legitimacy of a motion or of a decision.
A municipal corporation is an administrative and local entity, possessiong governmental powers on a limited territory (a municipality). It is considered a legal person having the power to enforce and collect taxes and to enact by-laws that will govern its organisation.
A party to a given lawsuit may raise an objection to the content of a witness’ testimony, notably when this party is aiming to discredit the witness in question. All objections to a witness’ credibility must necessarily be serious and pertinent.
Immovable property can be described as any object that cannot be transported from one place to another. This includes movables that are permanently and physically attached to an immovable, as well as movables that have been incorporated within an immovable in such a way that they have lost their individuality.
The term “movable property” can be defined as all objects capable of being transported from one place to another. This includes all things which can move themselves, as well as all things that can only be moved by an extrinsic force.
A case is considered to be pending when a matter has been brought before a court, but has not yet been decided on. The case will remain pending until a final judgement is pronounced.
In Québec, the expression “practice division” refers to the periodic court sitting during which the court conducts the presentation of motions to institute proceedings, decides on case management and hears all incidental proceedings.
The pre-trial can be described as the judge's invitation to the attorneys of each party to discuss the appropriate measures to simplify the suit and to shorten the hearing. During the pre-trial, the issues in dispute are usually specified.
The term "private writing" is defined as a writing setting forth a juridical act and bearing the signature of the parties; it is not subject to any other formality.
In general, the term “property” refers to all physical objects capable of being handled (corporeal, tangible and material property, such as a vehicle, a boat, etc.). Property can also refer to the rights or the interests belonging to a beneficiary or right-holder (incorporeal, intangible and immaterial property, such as a claim). All property, whether physical or not, belonging to a person falls within his patrimony.
This expression, of Québec origin but generally used by all French-speaking communities, stems from the Charters’ protection against discrimination on the basis of nationality or ethnic origin, religion, gender, age, handicap, sexual orientation, etc. A “reasonable accommodation” constitutes a corrective measure that aims to ensure that all individuals, regardless of their personal characteristics, have access to the same services, establishments and employment opportunities.
The expression “registration division” can be defined as the territory over which a registry office exercises its jurisdiction. The very existence of the land registry allows for the proper protection of all property rights within the province of Québec. In fact, the publication of immovable rights always results in a person’s property rights being generally accepted.
The term "registry office" can be defined as the office, belonging to a specific territorial division, where all acts relating to immovable rights and certain acts relating to movable and personal rights are published and retained.
The defendant to an action may ask that the court require the plaintiff, who resides abroad, to give a security to cover all costs that may result from the legal proceedings instituted; the amount given is referred to as a security for costs.
To determine the amount of the security, the court will consider the nature and the importance of the case and all costs associated with incidental proceedings, experts’ appraisals, the examination of witnesses outside the courtroom, the type of hearing and the length of the trial. Other factors to be considered include the value of the property in Québec belonging to the plaintiff and his ability to pay.
The solemn affirmation is a legal substitute for the oath, allowing witnesses who are non-believers or who have religious reservations to testify, after having promised to tell the truth.
The expression "specified period" refers to the delay, determined or attributed by a given law or by-law, in which one must accomplish an act, comply with a formality or fulfull an obligation. In many cases, the specified period establishes a deadline, a maturity date or an expiration date. In other cases, however, a waiting period is determined, thus obligating the individual to wait before acting or abstaining to act.
The term “subpoena” can be described as the act issued by a lawyer or by a court authority to compel a witness to testify at a judicial proceeding or to bring documents that the he has in his possession (the subpoena duces tecum). Failure to appear in court or to bring the documents specified by the subpoena may result in the witness concerned being declared guilty of contempt of the court, or being the object of a writ of capias, by which he will be physically brought before the court.
To "sue" is to institute legal proceedings or to bring a lawsuit against another.
A summons is an act by which a person is ordered to appear in court in order to present a defence, to testify or to otherwise participate during the hearing.
The civil law defines the term "support" as being all sums of money paid to a person in order to ensure that his daily needs are met. However, support can also refer to other costs; for example, a parent who owes support to his school-aged child must pay the funds necessary to cover all school fees. This term therefore includes a much larger domain than does support in its strict meaning.
The Supreme Court is the highest court of Canada and constitutes the final court of appeal in the Canadian justice system. It has the jurisdiction to hear, on appeal, all decisions rendered by provincial, territorial and federal appellate courts. The Supreme Court of Canada, composed of a total of nine judges, delivers final decisions that are of a great importance to the Canadian population and that are binding upon all lower courts in Canada. These decisions are to be recognized as the ultimate expression and application of Canadian law.
The surety is a guarantor who accepts to make a payment or perform an obligation contracted by a debtor in benefit of a creditor, in the case where this principal debtor defaults. The term “surety” can also be used to refer to the commitment made to a creditor by a third person (also referred to as the surety) to perform an obligation that the debtor has failed to perform himself.
This being said, the term “suretyship” can be defined as the accessory act to an initial contract, by which a person agrees to take on the role of a surety and to guarantee the performance of a debtor’s obligations
The expression "sworn statement" refers to the written declaration supported by the oath of the depondent and received and attested by any person authorized for that purpose by law. This form of declaration can also be designated by the term "affidavit".
The transmission form is often used in civil procedure, as it fully describes the transmission of a given document. It also constitutes a proof of delivery. The transmission form generally contains the name of the recipient, that of the sender, certain information concerning the reception of the document, as well as certain information concerning the nature of the document sent.
The term “writ” can be defined as the written order issued by a court in order to prevent a person from abusing a right or abusing the procedure. A writ can also be issued in order to summon the parties (the writ of summons) or their witnesses (the subpoena) before the court, or to command the party to whom it is addressed to perform or to cease performing a specific act (for example, the writ of expulsion, the writ of execution, the writ of seizure, etc.).
A writ of certiorari is a discretionary act granted by a higher court, ordering an inferior court to produce a certified record of a specific case it has heard, in order to determine whether any irregularities or errors, namely the incompetence of the inferior court in question, may justify the review of the case. The term “certiorari” literally means “to be certified of” or “to be informed of”.
The writ of execution is the act by which a court enforces a party in default to perform an obligation that he committed to performing.
The writ of expulsion is the act by which a court, having condemned a party to deliver, surrender, leave or abandon a property, can ensure the execution of its decision by a sheriff.
The writ of seizure by garnishment is the act by which a court allows a creditor to seize, within the hands of a third person, a sum of money belonging to the debtor. For example, a creditor who has obtained a writ of seizure by garnishment can legally seize the salary of the debtor in default through the latter’s employer.
The writ of seizure of movable property in execution is the act by which a party is permitted to seize a movable property belonging to the adverse party, namely any property that can be physically moved from one place to another without alteration. This seizure is generally practiced when the owner of the property in question has failed to perform a specific obligation.
The writ of summons is the act by which a party is directed to appear in court in order to answer to an action taken against him or by which a witness is directed to appear in court in order to testify.