Glossary of Legal Terms

A

Action

A judicial proceeding where one party takes another party to court for the redress of a wrong.  An action is commenced by the filing of a plaintiffs claim that details a cause of action.

Adjournment

The rescheduling of a hearing to another time and/or place.  A matter may be adjourned to a specific date or adjourned sine die.

Affidavit

A written statement of facts that is sworn to be true.  An affidavit must be sworn, or affirmed, before a person with the authority to administer oaths (ie. a lawyer or court clerk).  It is a criminal offence to knowingly swear a false affidavit.

Affidavit for Jurisdiction

An affidavit indicating why a plaintiff’s claim can be filed in a territorial jurisdiction other than where the defendant resides.

Affidavit for Enforcement

In order to commence any type of an enforcement activity an affidavit must be produced detailing why a party is entitled to take such action.  Some enforcement methods use a general affidavit while others use a specific affidavit.

Affidavit of Service

An affidavit indicating how service of a particular document was effected upon another party.

Agent

A non-lawyer acting on behalf of an individual, corporation or other legal entity.  Paralegal‘s identify themselves as agent’s when appearing in court.

Appeal

An application to a higher court for a judicial review of a lower court’s decision.  An appeal of a Small Claims Court decision is heard in the Divisional Court.

Assessment of Damages

In an undefended action it is a hearing before a judge where the plaintiff is still required to prove the amount of damages listed in their claimLiability need not be established as a defendant‘s failure to defend is treated as an admission of liability.  After exercising judicial review, a judge may either issue a judgment for a specific amount or dismiss the claim.  Most assessments of damages involve claims for non-liquidated damages.  Compare with default judgment.

Appeal

An application to a higher court for a judicial review of a lower court’s decision.  An appeal of a Small Claims Court decision is heard in the Divisional Court.

B

Baliff

Also known as court enforcement officer.  An employee of the court empowered to enforce writs such as a writ of seizure and sale.

Balance of Probabilities

The standard of proof used in a civil action to discern between to competing versions of events.  At the end of a hearing, a judge must determine which litigant is more believable after weighing all the evidence.  This standard, sometimes referred to as 50% plus one, differs from criminal proceedings where an accused must be proven to be 100% guilty beyond a reasonable doubt.

Barrister

See lawyer.

C

Cause of Action

The set of facts which give a party the right to bring a claim against another party. [/three_fourths_last]

Civil Action

A non-criminal legal proceeding  to protect or assert a right.

Claim

The assertion of a right to money or property from another for damages.  A claim needs to be filed with a court of competent jurisdiction and within a certain period of time.  In order for a claim to succeed, a party must prove liability and damages on a balance of probabilities.

Contempt Hearing

Any hearing where a party is called before the court to account for their failure to follow a previously issued order.  If an individual does not attend as required, or otherwise fails to comply with an order of the court, a warrant may be issued for the individual’s arrest.  In the Small Claims Court, contempt hearings are generally held after a debtor fails to attend, or co-operate at, a debtor’s examination.

Counsel

See lawyer.

Counter Claim

A claim issued by a defendant against a plaintiff for damages arising from the same set of circumstances.  In a counterclaim, the original plaintiff then becomes the defendant by way of defendant’s claim.  Compare with third party claim.

Court Agent

See paralegal.

Court Clerk

A court official to whom certain duties and powers are given by law.  While court clerk’s have the power to issue default judgments in some cases they cannot exercise any type of judicial review.

Court Enforcement Officer

See bailiff.

Court Reporter

Also known as courtroom monitor.  A court employee who makes recordings of court proceedings and otherwise assists a judge in managing the court’s docket.

Courtroom Monitor

See court reporter.

Courts of Justice Act

An Ontario statute that sets out the general framework for the system and application of justice in Ontario.  It is this through this statute that the Small Claims Court exists.  The Rules of the Small Claims Court are part of the regulations for this statute.

Creditor

Also known as judgment creditor.  The litigant who is awarded a monetary judgment and is therefore entitled to commence enforcement proceedings.  For example, if a plaintiff won their claim for liquidated damages at trial henceforth they would be referred to as the creditor.  Compare with debtor.

D

Damages

A loss that must be compensated by another.

Debtor

Also known as judgment debtor.  The litigant against whom a monetary judgment is made and against whom enforcement proceedings may be commenced.  For example, if a defendant lost at trial to a plaintiff henceforth they would be referred to as the debtor.  Compare with creditor.

Debtor’s Examination

Also known simply as an examination.  A private hearing before a judge in order to assist a creditor with enforcement proceedings.  If a creditor has little or no financial information on a debtor, a creditor may request such a hearing.  At the hearing a debtor is required to advance payment terms and/or provide the creditor with relevant financial information such as place of employment, banking information, property owned, etc.  If a debtor fails to attend an examination or answer questions a contempt hearing may be ordered.

Default Judgment

A judgment obtained as a result of a defendant‘s failure to respond to a plaintiff‘s claim within a specified period of time or from some other failure to act.  For example, if a defendant fails to file a defence to a claim for liquidated damages then the court clerk, as opposed to an actual judge, may issue a default judgment for the amount claimed.  Compare with assessment of damages.

Defence

A written denial of the allegations set out in a claim.  To be valid a defence must be filed with the court by a defendant within a specified period of time.  A defendant may file a defence denying all or part of the allegations in a claim.  Depending on the type of claim, if no defence is filed then a plaintiff may proceed with either a default judgment or an assessment of damages.

Defendant

A person, corporation or other legal entity against whom a plaintiff has brought a claim.  A defendant that wishes to dispute a claim must respond by filing a defence with the court.

Defendant’s Claim

A claim issued by a defendant.  It may be a counterclaim filed against the plaintiff or it may be a third party claim filed against someone other than the plaintiff.

Deputy Judge

Generally a lawyer appointed to a three-year term to sit as a deputy judge.  Many are full-time practicing lawyers who sit as deputy judges on a part-time basis.  See also judge.

Divisional Court

A branch of the Superior Court of Justice that, among other things, hears the appeals of all Small Claims Court decisions and some Superior Court decisions.

Docket

The list of cases being heard by the court on a given day.

E

Endorsement

A signed written order by a judge or other authorized individual.

Endorsement Record

A document inside the court file for an action detailing all the order’s made by the court.  At a hearing, such orders are often hand-written by a judge who may say “I have endorsed the record as follows…”

Enforcement

See enforcement proceedings.

Enforcement Proceedings

Any method permitted by law to ensure and enact compliance with a judgment.  Enforcement proceedings are the responsibility of a successful litigant.  Some enforcement methods include garnishment, writ of seizure and sale and debtor’s examination

et al.

A Latin phrase meaning “and others.”  Abbreviated from et alii.  It is often used to simplify the title of a proceeding when there are multiple plaintiffs or defendants.  For example, a claim filed by Jane Doe against Adam Smith, Joe Brown and Tom Jones may be referred to as Doe v. Smith et al.

ex parte

A Latin phrase meaning “on behalf of.”  Usually used when describing a motion brought without notice to an opposing party due to insufficient time or an inability to effect service.

Examination

See debtor’s examination.

F

 

No Entries

G

Garnishee

A person, corporation or other legal entity against whom a garnishment is filed.  A garnishee is one who has a financial obligation to a debtor (eg. an obligation could be the wages paid by an employer to an individual).  A garnishment requires a garnishee to re-direct part or all of the obligation to a debtor’s creditor until the garnishment is satisfied in full.

Garnishee Statement

A statement to be served with a notice of garnishment on a garnishee.  Upon receipt, if a garnishee cannot remit all the funds being sought by a creditor the garnishee is required to return the garnishee statement detailing the reasons why.

Garnishment

A statutory process by which a debtor‘s money is seized in order to satisfy a judgment or some other statutory process.  A garnishment is often executed against a debtor’s bank account or wages.  Under such circumstances a bank or employer would be required to redirect money marked for the debtor and remit it to the court from which the garnishment originated.

Garnishment Hearing

A hearing before the court to determine or vary the obligations of a garnishee to a creditor.

 
H

Hearing Officer

See referee.

Hearsay

A statement made by someone not present at a hearing.  Hearsay is generally not admissible as evidence.

I

 

J

Judge

As circumstances and position warrant also known as deputy judge or justice.  A person authorized by special appointment to make findings of law and fact with respect to actions brought before the court.

Judgment

An order by the court awarding a litigant a sum of money.  Depending on the nature of the claim and how a defendant responds, a judgment may be obtained at trial, an assessment of damages hearing, or issued by the court clerk as a default judgment.  A successful litigant may seek enforcement of a judgment by any method permitted by law.

Judgment Creditor

See creditor.

Judgment Debtor

See debtor.

Judicial Review

The investigation and determination by a judge of the legal validity of an act, instrument, or transaction.

Justice

A tenured judge of the Ontario Court of Justice.

K

 

L

Lawyer

Also known as counsel, barrister or solicitor.  An individual who has been educated in the study and application of law and is a member in good standing with the Law Society of Upper Canada.

Law Society of Upper Canada

Liability

The situation where a person has a real or possible obligation to another

Liquidated Damages

A fixed amount of money owing pursuant to a written agreement such as a contract, invoice, cheque or promissory note.  Compare with non-liquidated damages.

Litigant

One of the parties to an action.  Either the plaintiff or the defendant.

M

Mediator

See referee.

Minutes of Settlement

A binding agreement whereby the plaintiff agrees to not proceed to trial in exchange for the defendant paying an agreed upon sum of money.  If a defendant fails to make payments pursuant to minutes of settlement then the plaintiff is entitled to obtain default judgment.

Motion

An application to a court for an order to be made for the benefit of the applicant.  A defendant, plaintiff or any interested third party to an action may bring a motion.

N

Notice of Motion

See motion.

O

Order

A directive from a judge, or other enabled individual within the court, which commands a party to do something.

P

Paralegal

Also referred to as a court agent.  An individual through experience or education engaged in the practice of law in specific courts, boards and tribunals as allowed by statute.  (For example, paralegals are permitted to appear in the small claims court, traffic court, and rental tribunal.)  Paralegals are lawyers are both licensed by the Law Society of Upper Canada.

Peremptory

Meaning final or absolute.  Usually used to refer to a hearing date.  A peremptory hearing date is generally a date that cannot be changed.  A hearing date may be made peremptory on a specific litigant if the court feels that the litigant has been unduly delaying a proceeding.

Plaintiff

A person, corporation or other legal entity who commences an action against a defendant.

Plaintiff’s Claim

A Claim commenced by a Plaintiff against a defendant.

Post-Judgment Interest

Interest that accrues on an award of money from the date of judgment.  The rate of interest that a creditor is entitled to may depend on a contract, the discretion of a judge or the Courts of Justice Act.

Pre-Judgment Interest

Interest that accrued on an award of money usually from the date of the cause of action to the date of judgment.  The rate of interest that a creditor is entitled to may depend on a contract, the discretion of a judge or the Courts of Justice Act.

Pre-Trial Conference

See settlement conference.

Process Server

A person for hire who serves and/or files court documents.

Q

 

R

Referee

Also known as mediator or hearing officer.  A person other than a judge who has authority to preside over a court hearing.  Referee’s generally only deal with settlement conferences.

Rules of Small Claims Court

The written rules that detail the procedures unique to the Small Claims Court.  The rules exist as a part of the regulations to the Courts of Justice Act.  The rules generally do not cover courtroom procedure, evidentiary matters nor standards for legal arguments.  The rules were last amended July 1, 2006.

S

Settlement Conference

A private meeting between the litigants in the presence of a judge, mediator, or referee.  The primary objective of a settlement conference is to try to resolve the matter without having to go to trial.  Settlement conferences only occur in defended actions.  These hearings are not open to the public and whatever is said at a settlement conference is not admissible at trial.

Service

The act of delivering a document to a party.  Proof of service is generally established by providing the court with an affidavit of service stating in writing how and when the document was served.  Depending on the document, service can be effected by personal delivery, mail or fax.

Sine Die

A Latin phrase meaning without a day.  When used in reference to an adjournment it often means that the hearing is being put off until one of the parties requests a new date from the court.

Small Claims Court

A branch of the Superior Court of Justice that hears claims for the granting of money or the return of personal property not in excess of $10,000 exclusive of interest.

Solicitor

See lawyer.

Stay

With respect to court proceedings, a stoppage or suspension of the proceedings pursuant to a court order.

Style of Cause

See title of the proceeding.

Subpoena

See summons to witness.

Summons to Witness

Also known as a subpoena.  A court document compelling the attendance of a witness to a trialService of a summons must be done in person.  If a witness fails to appear at court as required by a summons then a warrant may be issued for their arrest.

Superior Court of Justice

A branch of the Court of Ontario that also consists of the Ontario Court of Justice (largely criminal and some family matters) and the Court of Appeal for Ontario.  The Superior Court hears primarily civil and family matters.

T

Third Party Claim

A claim issued by a defendant against a person other than the plaintiff.

Title of the Proceeding

The name of an action.  For example, if Jane Doe sues Adam Smith then the title of the proceeding is Doe v. Smith.

Trial

A hearing before a judge where a determination is made with respect to the factual and legal issues raised in a claim.  At the conclusion of a trial a judge will issue a judgment.

U

 

V

v.

Short form of versus.

Versus

A Latin phrase meaning “against.”

W

Warrant

An written order issued by a court for the arrest and detention of a person.  In the Small Claims Court, if a summonsed witness fails to attend at trial, or if a debtor fails to attend at a contempt hearing, the court may issue a warrant for the individual’s arrest.

Writ

A written directive issued by a court instructing a court enforcement officer to enforce a court order, eg. a judgment.

Writ of Seizure and Sale

A written directive issued by a court instructing a bailiff to seize and sell property belonging to debtor in order to satisfy a judgment.

X

 

Y

 

Z