CH 2 - Machinery of Justice

Question 1

Distinguish the Civil Law system from the common law system

Answer 1

Civil law values legislation over case law, and common law gives case law the same or sometimes greater value than legislation. The two courts often reach the same conclusions, but their are some important differences.

Civil Law - The system of law involving a comprehensive legislated code, derived from Roman law that developed in continental Europe and greatly influenced by the code of Napoleon of 1804

Common Law - the case based system of law originating in England and covering most f the English speaking world - based on recorded reasons given by courts for their decisions.

Question 2

Explain the theory of precedent and its values

Answer 2

Stare decisis: to stand by a previous decision - defines the theory of precedence. It means that decisions of higher courts must be followed by lower courts, most of the time.

1st - judges may be influenced by all prior decisions, they are only bound to follow decisions of a higher court; decisions of lower courts have influential value only.

2nd - precedents bind only to the exact same circumstances. judges can distinguish the current case from an earlier precedent by dwelling upon factual differences.

Changing a precedent is possible but takes time.

Question 3

Describe the relationship between the courts of common law and equity

Answer 3

> The courts of common law offered very few remedies; they would award money damages only to a party injured by a breach of contract. Yet sometimes money alone was not adequate compensation.
By contrast the courts of equity were prepared, if they thought fit, to grant equitable remedies such as specific performance. Deals with equity exceptions to existing rules of common law.

Question 4

What is the purpose of codifying law in a statute?

Answer 4

To codify is to summarize in a statute the existing common law rules and precedents governing a particular area of activity.

Question 5

Why is subordinate legislation important?

Answer 5

Subordinate legislation: law created by administrative agencies whose authority is granted by statute in order to carry out the purposes of the legislation. examples are the Ontario Securities Commission or the Landlord Tenant board.

Question 6

How does the operation of an appeal court differ from that of a trial court?

Answer 6

Trials take place in the courts of first instance; this is the place where witnesses are called and an initial judgement is rendered.

The court of appeal is the next levels. Actions do not start in this court, but a party who is dissatisfied with the decision of a court of first instance may appeal to the Court of Appeal to reconsider the decision.

Question 7

Do you think motion pictures and television programs are responsible for a misconception about the way in which trials proceed?

Answer 7

absolutely. There is rarely such a thing as surprise evidence. And the lead up to trials is not quick.

Question 8

What are the advantages of a settlement over a court trial?

Answer 8

Settlement provides quick compensation and avoids the expense of trial. Each party to a settlement also avoids the risk that the court will find against them.

The court is the last resort when all compromise fails; it settles the issue when the parties themselves cannot.

Question 9

Define appellant and respondent

Answer 9

Appellant - the party who petitions for an appeal

Respondent - the party who defends on an appeal

Question 10

Define counterclaim and pleadings

Answer 10

Counterclaim - a claim by the defendant arising from the same facts as the original action by the plaintiff to be tried along with that action

pleadings - documents filed by each party to an action providing information it intends to prove in court

Question 11

Define counsel

Answer 11

the lawyer representing a plaintiff or defendant

Question 12

Define settlement

Answer 12

When one of the parties agrees to pay a sum of money or perform an act in return for a waiver by the other party of all rights claimed in the lawsuit

Question 13

Define party and party costs

Answer 13

a court order that shifts some of the winning party’s costs to the losing side according to a published scale of fees.

Question 14

define res judicata

Answer 14

A case that has already been decided by a court and cannot be brought before a court again

Question 15

What is a class action? and when do parties use them?

Answer 15

An action in which an individual represents a group of possible plaintiffs, and the judgement decides the matter for all members of the class.

It is used when many peoples interests are affected by the same conduct

Question 16

How does a judge decide a case when there is no precedent available in earlier decisions?

Answer 16

They interpret statutes or whether a particular law applies to the facts of a case.

Question 17

Explain why a legal rule in one province may differ from that in another province

Answer 17

Because each province has its own court system

Question 18

How can a successful litigant lose?

Answer 18

It is likely that the costs are more than the victory awarded. And likely not all costs will be returned.

Full indemnity is rare. then substantial, then partial

Question 19

Explain the basis of a contingency fee. How are contingency fees used in Canada?

Answer 19

contingency fee: a fee paid for a lawyer’s services only if the client is successful; there is no charge if the client is unsuccessful

Canada was slow to adopt contingency fees as a result of concerns that such arrangements:
> encourage unnecessary and even frivolous litigation
> Expose defendants to the costs of defending themselves against claims that have no merit
> Encourage some clients to agree to unconsciously large percentage fees demanded by their lawyers
> Drive up the cost of settlements and court awards and thus affect insurance premiums
> cloud judgement of the lawyer who becomes a stakeholder in the litigation

Question 20

What are the advantages that make ADR an attractive means of settling a dispute?

Answer 20

1. Speed > cases are resolved by mediation or arbitration much more promptly than through the courts
2. Cost > speed itself saves money; parties do have to pay the ADR fees themselves
3. Choice or adjudicator or mediator > unlike the courts, the parties can choose a person whom they believe is well suited with experience and expertise.
4. Confidentiality > the parties can agree to keep the dispute private to minimize harm from confidential info. or to encourage similar complaints.
5. Preservation of ongoing relations > ADR is typically less adversarial than litigation and may preserve a relationship to continue working afterward.

Question 21

What are the pros and cons common law?

Answer 21

Pros

It is predictable and therefore promotes settlement.

Cons

It is hard to change
and there are gaps in areas where statutes are needed

Question 22

What is the purpose of legislation, regulations, administrative tribunals, and statutory interpretation?

Answer 22

Legislation/statutes/acts > are passed by legislatures depending upon the constitutions allocation of power. will create laws and regulations

Administrative tribunals/agencies/departments > established by a statute with regulatory powers and able to create subordinate legislation

As any agencies creates subordinate legislation it depends on their interpretation of a statute. Courts may be asked to decide on the validity of the interpretation.

Statutory interpretation is determining the meaning of words in a statute by considering the legislative intent, purpose, and object of the statute as well as the definition and entire context of the language.

Question 23

What are the steps in action?

Answer 23

1. Pleadings > a broad statement of complaint
   > the defendant will respond
2. Discovery > of facts and evidence
3. motions > if more info or guidance is needed
4. pre-trial > before the judge to review the facts and attempt to settle as many issues as possible.
5. trial > the burden is now on the plaintiff to present her case.

Question 24

Who pays for the courts system? What are costs?

Answer 24

government pays for the court system as a public service, a forum for peacefully settling disputes.

Costs do not refer to the running of the court system. It refers to legal fees and disbursements that a party incurs in processing a claim or defense. the court will typically order the losing party to pay some portion of the costs of the winning party

Question 25

What is legal aid?

Answer 25

A system where the government pays for many legal services provided to low income litigants.

Question 26

Describe the system of courts in Canada.

Answer 26

It is the organization of courts into a hierarchy that designates the responsibilities of the court and determines the importance of the precedent; the standard system has three levels; trial, appeal, and final appeal.

Question 27

What is a court of first instance?

Answer 27

The courts of first instance are trial courts where witnesses give evidence and initial judgments are made. the subject matter of the dispute determines which trial court hears the dispute.

Question 28

What are the federal courts of first instance?

Answer 28

There are two federal courts of first instance.

1. Tax court > hears the appeals of taxpayers against assessments of revenue Canada
2. Federal court of Canada

Question 29

What are the courts of appeal?

Answer 29

each province has a court of appeal that hears appeals from the courts of first instance

There is also a federal court of appeal for matters within the federal jurisdiction.

finally their is the supreme court of Canada which hears appeals from provincial and federal court systems. there is no higher court.

Question 30

What are the provincial courts of first instance

Answer 30

Small claims court > handles private disputes for smaller amounts of money
Provincial division > decides little private law. It hears criminal cases for all but the most serious offences which are referred to superior trial courts.
Superior Trial courts (surrogate courts/probate court) > supervises the estates of deceased persons
Superior trial courts (superior court) > unlimited jurisdiction in civil and criminal trials. Federally appointed judges deal with divorce serious crimes and civil disputes above small claims court