Legal Glossary for Atlantic Canada

A tort is a civil wrong one person commits against another, separate from any contract between them. Most injury claims are tort claims: a driver, an occupier or a manufacturer owed you care, failed to give it, and you were hurt. The remedy for a tort is money, not punishment.

Negligence is the tort behind almost every car accident claim. It has four parts: a duty of care, a failure to meet the standard of care, harm, and a causal link between the failure and the harm. Losing one of the four ends the claim.

A duty of care is the legal obligation to take reasonable care not to injure someone. Drivers owe it to other road users, occupiers owe it to visitors, doctors owe it to patients. Whether a duty exists is decided by the relationship between the parties, not by how badly someone was hurt.

The standard of care is the level of care the duty requires: what a reasonable person in the defendant’s position would have done. For a professional it is the standard of a reasonably competent member of that profession, which usually has to be proved by an expert from the same field.

Causation links the defendant’s conduct to your injury. The usual test is whether the injury would have happened but for what the defendant did. Where an injury has more than one cause, or where an old problem was made worse, causation is often the hardest part of the claim to prove.

Liability is legal responsibility for the harm. An insurer that admits liability has accepted the fault question and is arguing only about money. Liability and quantum are decided separately, and either one can be settled while the other is still in dispute.

Contributory negligence is your own share of the fault, for example riding without a helmet or not wearing a seatbelt. Each Atlantic province has a statute that splits the loss by percentage, so a plaintiff found 25 percent at fault recovers 75 percent of the damages. It reduces a claim; it does not end it.

Where two or more defendants caused one injury, each of them can be made to pay the whole judgment, and it is then for them to sort out their shares between themselves. It matters most when one defendant has no insurance and no money.

Vicarious liability makes one party responsible for another’s wrong without any fault of its own: an employer for an employee acting in the course of employment, or the registered owner of a vehicle for the person driving it. It usually brings an insured defendant into a claim.

Occupiers’ liability is the responsibility of whoever controls land or a building for the safety of people on it. It is the basis of most trip and fall claims, including ice and snow cases. Some Atlantic provinces set the duty by statute and others by the common law, so the standard is checked province by province.

A product liability claim says a manufacturer, distributor or seller put a defective or unreasonably dangerous product into your hands. The defect can be in the design, in the manufacture, or in the warning that should have come with it. Keeping the product itself, unrepaired, is usually the first step.

The plaintiff is the person who starts the civil claim, normally the injured person. A claim can have more than one plaintiff: a spouse or a parent may have a claim of their own arising from the same accident.

The defendant is the person or company sued. In practice the defence is run and paid for by the defendant’s liability insurer, which chooses the lawyer, sets the reserve and controls the settlement decision up to the policy limit.

The limitation period is the deadline to start a court claim. For personal injury it is two years in each of the four Atlantic provinces, and it usually runs from the day you knew or ought to have known you had a claim. Claims against a municipality or a provincial body can carry a much shorter notice deadline, which is why the dates are checked at the first meeting; see what we can do for you.

Discoverability is the rule that a limitation period starts when you knew, or reasonably should have known, that you had a claim and against whom. It matters where an injury shows up late, as some brain injuries do, or where the responsible party was not obvious at the time.

A child, or an adult who cannot manage a claim, sues through a litigation guardian, usually a parent. The guardian instructs the lawyer. A court must approve any settlement of a child’s claim, and the money is normally held for the child until the age of majority in that province.

When someone dies of an injury, a fatal accident claim is brought by the estate for the losses to the deceased and by the dependants for their own losses. Each province has a fatal accidents statute that names who may claim and what the claim covers.

A dependant is a family member the fatal accidents statute allows to claim: usually a spouse, a child, a parent or a sibling, with the exact list set by each province. The claim covers lost financial support and lost care, guidance and companionship, not grief on its own. The chapter on fatal claims sets out how those losses are valued.

Damages are the money a court awards to put you back, so far as money can, in the position you would have been in without the injury. They divide into losses that can be counted in dollars and losses that cannot. Each settlement figure is built by comparing the case against the same heads a court would use.

General damages are the award for pain, suffering and loss of enjoyment of life. They are set by comparing your injury and its effect on your life with what courts awarded in similar cases, not by a formula. The general damages guide works through the ranges injury by injury.

Non-pecuniary damages are the same thing as general damages: compensation for the loss itself, separate from money spent or lost. Canada puts a ceiling on them, set by the Supreme Court of Canada in 1978 and indexed for inflation since. See the Supreme Court cap.

Special damages are the out-of-pocket amounts already spent because of the injury: prescriptions, physiotherapy, mileage to appointments, crutches, paid help with the house. Keeping every receipt from the first week is the difference between claiming them and losing them.

Past loss of income is the money you did not earn between the injury and the settlement or trial. It is proved with tax returns, pay records and a letter from the employer. What is recoverable is the net figure after income tax, not the gross.

This is compensation for the earning power the injury took away, not for a salary you can point to. Someone who can still work but cannot do overtime, cannot go back to a trade, or is now a less attractive hire has lost capacity. In a serious file it is usually the largest single item.

Cost of future care pays for the treatment, equipment, medication and attendant help you will need for the rest of your life. It is built from a care plan written by an occupational therapist and priced by an economist. In a brain injury claim it can outweigh every other head of damages.

This is the claim for household work you can no longer do, whether or not you pay someone else to do it. Courts in Atlantic Canada award it as a head of damages in its own right. See loss of housekeeping capacity.

An in-trust claim compensates a family member who gave up work or time to nurse you. The award is made to you and held for that person. It needs a record of what was done and how long it took, kept as it happens rather than reconstructed years later.

Aggravated damages are extra compensation where the defendant’s conduct made the injury worse, for example by humiliating or frightening the plaintiff. They are still compensation rather than punishment, so they need evidence of the added suffering.

Punitive damages punish conduct the court finds high-handed or malicious. They are rare in injury claims and more common where an insurer has handled a claim in bad faith. They are awarded on top of full compensation, never instead of it.

Every Atlantic province limits general damages for injuries its insurance legislation calls minor, mostly sprains, strains and whiplash that do not cause a serious impairment. The definition and the amount differ from province to province, and the amount is indexed each year. The minor injury cap guide sets out each province’s version.

A deductible is an amount subtracted from an award before it is paid. In some provinces a statutory deductible applies to the general damages in a motor vehicle claim, which can remove a small award almost entirely. It is a different thing from the deductible on your own collision coverage.

Prejudgment interest is interest on your damages for the period between the injury and the judgment, at a rate set by provincial legislation or by the court. It compensates you for having waited. It does not normally run on losses you have not yet suffered.

Costs are a contribution to the winning party’s legal fees, ordered by the court against the losing party. They rarely cover the whole fee. A formal offer to settle that the other side failed to beat at trial can reverse who pays costs from the date of the offer.

Disbursements are the money a law firm spends to run your file: medical records, expert reports, filing fees, court reporters. They are separate from the fee. On a contingency file the firm funds them and recovers them out of the settlement at the end.

A contingency fee is a percentage of the recovery, payable only if the claim succeeds. It is what makes an injury claim possible without savings. The percentage and the treatment of disbursements are set out in a signed agreement before any work begins.

A structured settlement pays part of a settlement as a stream of tax-free periodic payments bought from a life insurer. It suits someone who will need income for decades, or who would rather not manage a large sum. Once it is bought it cannot be changed.

Quantum is the size of the claim. Liability is who is at fault. A file where liability is admitted is a quantum dispute, and the argument turns on medical evidence and income records instead of on how the crash happened.

Mitigation is your duty to take reasonable steps to limit your own loss: attending treatment, following medical advice, looking for work you can still do. An insurer that shows you unreasonably refused treatment can have the damages reduced by the difference the treatment would have made.

A settlement is an agreement to end the claim for an agreed sum. Most claims settle, and most settle once the medical picture has stopped changing. How a settlement figure compares with what a court would award is set out in settlements and awards.

A release is the document you sign when a claim settles. It ends every claim arising from that accident, including a claim for an injury that gets worse afterwards. It is final, which is why it is signed only once the injury is understood.

Section B is the part of a standard Atlantic Canadian auto policy that pays for medical treatment, some income replacement and a funeral benefit after a crash, whoever was at fault. Your own insurer pays it, and claiming it does not stop you from suing the other driver. The Section B benefits guide sets out the limits in each province.

Section A is the third party liability part of the same policy: the coverage that pays other people when you are the one at fault. It pays their injury and property claims up to the policy limit, and it pays for the lawyer who defends you.

The policy limit is the most an insurer will pay under a coverage. When the injuries cost more to compensate than the at-fault driver’s limit covers, the shortfall is looked for in your own underinsured coverage or in a second defendant with its own insurance.

The SEF 44 family protection endorsement is an add-on to your own auto policy that tops up your recovery when the at-fault driver’s limit is too low to cover your loss. It pays the difference between their limit and the value of your claim. The premium is low and it is checked on every motor vehicle file.

Where the driver who hit you is never identified, as in a hit and run, the claim is made against your own insurer under the unidentified motorist provisions. Reporting the incident to the police promptly is normally a condition of that coverage.

The Facility Association is the industry pool that insures drivers no ordinary insurer will take. Depending on the province it also administers the fund that can respond where the at-fault driver had no insurance at all.

The named insured is the person the policy is issued to. Coverage often reaches a spouse and other household members, which is why a passenger who owns no car may still have benefits through a relative’s policy. See who pays Section B.

The adjuster is the insurance employee who investigates the claim, sets the reserve and makes the offers. The adjuster on the other driver’s file works for that insurer, and the statement they ask you for is taken to defend the claim rather than to advance yours.

A proof of loss is the sworn form an insurer requires before paying a first party claim, setting out what was lost and what is claimed. Missing the deadline in the policy can hand the insurer a defence, so the date goes in the diary as soon as the claim is opened.

An examination under oath is a questioning under your own policy, held before any lawsuit, that most policies make a condition of payment. Refusing to attend can end the claim. It is a different thing from an examination for discovery, which happens inside a lawsuit.

A reservation of rights letter says the insurer will handle the claim while keeping the argument that the policy may not cover it. It is a warning that coverage itself is in question, and it is worth a lawyer reading before anything else is sent in.

A denial letter is the insurer’s written refusal to pay, and it should state the reason and the policy wording relied on. It starts the clock on any internal appeal and, in a disability file, on the deadline to sue.

Subrogation is the right of an insurer that paid you to step into your shoes and recover that money from whoever was at fault. It is why a health plan or a disability insurer may take part of a settlement, and why those interests are settled at the same time as the main claim.

A vehicle is a total loss when repairing it costs more than it is worth. The insurer pays actual cash value, which is what the vehicle was worth the moment before the crash, not what a new one would cost.

Excess insurance is a second layer of coverage that responds after the first policy’s limit is exhausted. Commercial defendants often carry it, which matters in a truck accident claim where the injuries are severe and the primary limit is not enough.

A broker sells and services policies for one or more insurers. The broker’s file often shows what coverage was offered, refused or never mentioned, which can matter when a policy turns out to be too thin for the loss.

An insurer owes its own policyholder a duty of good faith in handling a claim. Where it denies without investigating, delays without reason, or uses the denial to force a cheap settlement, a court can award damages beyond the benefit that was owed.

Every auto and property policy in Atlantic Canada carries statutory conditions set by provincial legislation: report the loss promptly, cooperate with the insurer, do not misrepresent the claim. A breach can reduce the coverage or end it.

The statement of claim is the document that starts a lawsuit. It names the defendants, sets out the facts relied on and states what is asked for. Filing it before the limitation period expires is what protects the claim; the guide on suing after a car accident sets out the steps around it.

In some provinces a claim can be started with a short notice of action, with the full statement of claim to follow. It is used where a limitation period is about to expire and the facts are still being gathered.

The statement of defence is the defendant’s written answer: which facts are admitted, which are denied, and what defences are raised. A defendant who files nothing in time can have judgment entered against it.

The pleadings are the claim, the defence and any reply, taken together. They fix what the case is about, and the evidence at trial has to fit inside them. Changing them later usually needs the court’s permission.

Service is the formal delivery of court documents to the other side, done in the way the rules require. A claim that is filed but never properly served can be struck out, so proof of service is kept on the file.

Discovery is a questioning under oath, out of court, with a transcript. Each side asks the other about the facts, the injuries and the losses. What you say there can be read back at trial, so preparation with your lawyer takes a full session beforehand.

Each side must list, under oath, every document it holds that is relevant to the case, and produce the ones that are not privileged. A party that holds a document back risks losing credibility at trial fast.

An undertaking is a promise made at discovery to produce a document or find an answer. Undertakings are tracked and answered in writing, and a file rarely moves toward trial while any are outstanding.

A motion is an application to the court for an order before trial: to compel an answer, to add a party, to fix a timetable. It is decided on affidavits and argument rather than on live witnesses.

Summary judgment ends a claim or a defence without a trial, where the court finds there is no genuine issue that needs one. Insurers use it against claims they say have no evidence of causation, which is why the medical file is built early.

A formal offer is an offer made under the rules of court, with cost consequences attached. A party that refuses one and then does no better at trial usually pays a higher share of the other side’s costs from the date of the offer.

Mediation is a settlement meeting run by a neutral mediator who has no power to decide anything. Most Atlantic Canadian injury claims settle at or shortly after mediation, once both sides have seen the same medical evidence.

A settlement conference is a meeting before a judge who gives a view on the case to help the parties settle. What is said there cannot be used at trial, and the judge who conducts it does not try the case.

A pre-trial conference sets the trial up: how many days it needs, which experts will be called, what is admitted and what remains in dispute. It is usually where a trial date is fixed.

At trial the plaintiff calls evidence first, the defence follows, and the judge or jury decides liability and quantum. Most files never reach it, but the way a file is built for trial is what sets its settlement value. The trial process chapter sets out the order of a civil trial.

In a civil action either party can sometimes ask for a jury to decide the facts instead of a judge sitting alone. Whether a jury is available, and on what terms, differs between the four Atlantic provinces and is decided early because it changes how a case is prepared.

A judgment is the court’s decision and the order that follows it. It states who was at fault and in what shares, and sets the amount for each head of damages. Interest and costs are dealt with after it is given.

An appeal argues that the trial judge made an error of law, or a clear error about the facts. It is not a second trial and no new evidence is heard. The deadline to appeal is short and it runs from the judgment, not from the reasons.

The Court of King’s Bench of New Brunswick is the trial court for New Brunswick injury actions. Two of the largest personal injury decisions in Atlantic Canada came out of it, and both are set out at injury results.

The Supreme Court of Nova Scotia is the trial court for Nova Scotia injury actions. Prince Edward Island and Newfoundland and Labrador each have their own supreme court doing the same work, and the offices page names the court each office appears in.

Each province has an appeal court that reviews trial decisions. Its published reasons set the ranges the trial courts then follow, which is why a settlement discussion often turns on one appeal decision rather than on a dozen trial ones.

Small Claims Court hears money claims below a limit set by each province, with simpler procedure and lower costs. Minor property damage from a crash often ends there. A serious injury claim does not, because the limit is well below what the injury is worth.

An information is the sworn document that lays a criminal charge. It names the accused, the offence and the date it is said to have happened. Everything that follows, including the first appearance, runs from it.

A release order sets the conditions you live under while a charge is outstanding: where you live, who you may not contact, whether you may drink. Conditions can be varied on consent or on application, and breaking one is a separate charge.

The first appearance is your first date in Provincial Court. Nothing is decided: the charge is put, disclosure is requested and the matter is adjourned. See the first appearance.

Disclosure is everything the police gathered, which the Crown must hand over: statements, officer notes, video, test results. No decision about how to answer a charge is made before it has been read. See disclosure.

For a hybrid offence the Crown chooses whether to proceed summarily or by indictment. That choice sets the maximum sentence, the court and whether you can elect trial by jury. See the Crown election for how that choice is made.

A summary conviction offence is the less serious track. It is tried in Provincial Court by a judge sitting alone and it carries lower maximum penalties than the same conduct prosecuted by indictment.

An indictable offence is the more serious track, with higher maximum penalties and, for many offences, a choice between trial by a judge alone and trial by judge and jury in the superior court.

Most Criminal Code offences are hybrid: the Crown may take them either way. Assault, impaired driving and theft are all hybrid, which is why the Crown election is the first thing looked at on a new file.

Judicial interim release is the formal name for bail. Section 11(e) of the Charter gives the right not to be denied reasonable bail without just cause. A bail hearing decides release and the conditions attached to it.

A surety is a person who promises the court to supervise you and to forfeit a named sum if you break your conditions. Courts look at the surety’s relationship to you, their own record, and whether they can realistically supervise you day to day.

A peace bond is an order to keep the peace for up to twelve months, entered without any admission of guilt and without a criminal conviction. It is a common way to resolve an allegation where the complainant wants distance instead of a trial.

A plea is your answer to the charge. A guilty plea is taken only where it is voluntary, unequivocal and informed, and where you accept the facts read into the record. It is entered after disclosure has been reviewed with a criminal lawyer, never before.

Diversion resolves a less serious charge without a conviction, usually through community work, a donation or counselling, after which the charge is withdrawn. Eligibility differs by province and by Crown office. See resolution without a trial.

A conditional discharge is a finding of guilt with no conviction registered, provided you complete a period of probation. An absolute discharge is the same finding with no conditions at all. Both leave a record of the discharge for a set time, after which it is removed.

Probation is a court order to live under conditions for a period of up to three years, supervised by a probation officer. Breaching it is a separate offence, and a breach usually costs more at sentencing than the original charge did.

A conditional sentence is a jail sentence served in the community under strict conditions, often including house arrest. It is available only where the sentence is under two years and the offence is not one the Criminal Code excludes. See sentencing for how a judge chooses between options.

A criminal record is the federal record of convictions kept by the RCMP. It affects hiring, volunteering, bonding and border crossings into the United States. See criminal records and pardons.

A record suspension, once called a pardon, keeps a conviction out of an ordinary police check. The Parole Board of Canada grants it after a waiting period set by federal law. It does not erase the conviction and it can be revoked.

Impaired driving covers driving while impaired by alcohol or a drug and driving with a blood alcohol concentration at or over eighty milligrams in one hundred millilitres of blood. A conviction carries a mandatory minimum penalty and a driving prohibition, and a DUI lawyer reviews the stop, the demand and the testing before anything else.

Failing to obey a release order, a peace bond or a probation order is a separate charge, and it can be laid even where the original charge is later dropped. A breach of conditions charge is often what turns a small file into a serious one.

Section 10(b) of the Charter gives you the right to be told you may speak to a lawyer without delay, and to do so in private before questioning goes on. Where the police get that wrong, the evidence that followed can be excluded. See the right to counsel.

The Youth Criminal Justice Act governs charges against people aged twelve to seventeen. It uses separate courts, separate sentences and separate publication rules, and youth charges are handled differently from the first appearance onwards.

Long-term disability coverage replaces part of your income when illness or injury stops you working. Most policies are group policies through an employer. A long-term disability claim is a contract claim against the insurer, not a tort claim, and it runs on the policy’s own wording.

Short-term disability, or a sick leave plan, pays for the weeks immediately after you stop working. It usually runs until the long-term policy takes over. A denial at the short-term stage often decides how the long-term claim is treated.

The elimination period is the waiting time between the day you stop working and the first long-term payment, commonly the length of the short-term plan. Nothing is payable during it, and you must remain disabled throughout it to qualify. See the elimination period.

Own occupation is the first test in most policies: you are disabled if you cannot do the substantial duties of your own job. It applies for a limited period, often the first two years of payments. See own occupation and any occupation.

Any occupation is the second, harder test: you are disabled only if you cannot do any work you are reasonably suited to by education, training or experience. The wording differs between policies and the difference decides most disputed claims.

The change of definition is the date the test switches from own occupation to any occupation. Insurers reassess the file at that point, and a large share of terminations happen there instead of at the start. See the change of definition.

An internal appeal is a review of the denial by the same insurer, usually offered in the denial letter. It is optional in most cases, it does not extend the deadline to sue, and it is worth doing only where new medical evidence answers the stated reason. See the internal appeal.

A group policy is the contract between the employer and the insurer under which you are covered. The booklet you were given is a summary, not the contract, and the two can differ. The policy itself is requested at the start of any LTD denial file.

CPP disability is a federal benefit for a severe and prolonged disability, paid to people who contributed enough to the Canada Pension Plan. Applying is usually worthwhile, and most private policies require it. See CPP disability for how the two interact.

An offset is money the insurer subtracts from your monthly benefit because you receive it from another source, such as CPP disability, a workers compensation award or Section B income replacement. Offsets are set by the policy and they are the reason a payment can drop without the claim being denied.

Clinical notes and records are the day-to-day file kept by a family doctor, a hospital or a physiotherapist. They are the backbone of an injury claim because they were written at the time and for treatment, not for the litigation. See medical records and credibility.

An independent medical examination is an assessment by a doctor chosen and paid for by the insurer or the defence. It is an examination for a report, not for treatment. What you say and do at it is written down, so you are prepared for it beforehand.

An expert report is written evidence from a specialist qualified to give an opinion: an orthopaedic surgeon, a psychiatrist, an economist, an engineer. The rules of court set what a report must contain and when it must be served, and a report served late may not be heard.

A functional capacity evaluation measures what you can physically do over a working day: lifting, sitting, standing, repetition, endurance. It converts a diagnosis into work limits, which is what a judge needs in a chronic pain claim where imaging shows little.

Surveillance is video taken of you in public by an investigator hired by the insurer. It is common in injury and disability files and it is usually disclosed late. It does damage only where what it shows contradicts what you told a doctor. See surveillance and social media.

Solicitor and client privilege protects what you tell your own lawyer for the purpose of legal advice. It belongs to you, not to the lawyer, and it survives the end of the file. Bringing another person to a meeting can put it at risk.

An authorization is the signed form that lets a doctor, an employer or an insurer release your records. Insurers often ask for a broad one covering your whole history. Narrowing it to the records that matter is normal and is done before it is signed.

A pre-existing condition is a health problem you had before the accident. It does not defeat a claim: the defendant takes you as you were, and the question is how much worse the accident made things. See pre-existing conditions for how courts handle the calculation.