Ch.2 The Judicial System and Alternative Dispute Resolution Flashcards
Court plays important role in society
Decide disputes
Chief interpreters of constitution
Guardians of rights and freedoms
Deciding on legislative jurisdiction under Constitution Act
Interpret contracts
Determine responsibility and damage for loss
Jurisdiction
right or authority of a court to hear a matter
Authority to deal with cases of a particular type:
Monetary - up to a set amount
Geographic - within a particular province
Subject matter - criminal, family, civil, etc.
Trial or Appeal
Authority over the parties or property in dispute
Two classifications for courts of law:
- Original Jurisdiction - case heard for first time
a. Trial courts - court in which a legal action is first brought before a judge for a decision - Courts of appeal - hear appeals from trial courts
a. Superior or “higher” courts
b. Do not hear evidence
c. Look for errors of law
Federal Courts
Deals with federal matters under federal government jurisdiction
Disputes between provincial and federal governments
Actions against federal government
Admiralty, patents, trademark, copyright, taxation
Appeals from federal boards, tribunals and commissions
Provincial Courts
Each province has authority to establish own system
Variation in names and powers exist but overall similar in function
Criminal Courts
Magistrate’s or Provincial Court
Provincial Supreme Court:
Youth Courts:
Criminal Courts of Appeal
Magistrate’s or Provincial Court:
Court of original jurisdiction
Initially deals with all criminal cases
Holds preliminary hearings of serious cases to send it to higher court
Provincial Supreme Court:
Hears more serious criminal matters
Youth Courts:
Hears cases of youth who commit crimes - 12 years or older and under 18 years of age
Youth Criminal Justice Act
Criminal Courts of Appeal
Hear appeals from lower courts
Review convictions by other courts
Presided panel of judges
Typical Criminal Appeals* Process (refer to image)
Civil Courts
Provinces have several civil courts
Small Claims Court:
Provincial Supreme Court
Provincial Supreme Court
Hear civil disputes outside or beyond jurisdiction of lower courts
Unlimited jurisdiction in monetary matters
Presided over by a federally appointed judge
Designation of court varies by province
Small Claims Court:
Hear cases where amount of money involves is smaller (~$25,000 to $50,000)
Amount varies by province
Litigants frequently present their own cases
Typically small debt or contract disputes and damage cases
Provincial civil courts
Deal with disputes between corporations or individuals, or
Between corporations or individuals and government
Provincial Court of Appeal:
Hears appeals in each province from lower courts
Designation of court varies by province
Lines of appeal now always clear-cut
Supreme Court of Canada
Final and highest Appeal Court in Canada
Hears all appeals from all courts including Federal
Right to appeal is restricted, leave (permission) by the court must be obtained
Criminal Court Procedure
Enforcement of criminal law
Procedure:
-Offence is read to the accused by the Crown
-Accused makes a plea - guilty or not guilty
-Guilty plea
-Not guilty plea -
-Acteus reus
-Mens rea
-Record judgement
Guilty plea
court hears evidence, lodges conviction and imposes penalty
Not guilty plea
Crown proceeds with evidence
Acteus reus
accused committed a criminal act
Mens rea
- accused intended to commit the criminal act
Record judgement
- decision of the court
Civil Court Procedure
Pleadings:
Close of Pleadings:
Discovery:
Trial (Procedure):
Pleadings
written statements prepared by parties that set out facts and claims of legal action
Plaintiff
- party bringing an action; files statement of claim
Defendant
- party defending an action; files statement of defence
Counterclaim
- filed by Defendant if has claim against Plaintiff
Reply
- filed by Plaintiff if disputes statements in Statement of Defence
Close of Pleadings:
Once pleadings have been closed, either party sets it down for trial
In Ontario the court often requires the lawyers to agree to a schedule for moving the action forward
May require some form of attempt at dispute resolution before going to trial (Toronto actions require mandatory mediation)
Discovery
To clarify points in statement of claim, parties may hold examinations for discovery
Conditional upon delivering a list of all documents the party will rely on in trial, called an affidavit
Any question of fact relating to the issue in the action may be asked
Where questions cannot be answered during an examination or documents are unavailable the party being examined can either “undertake” to provide them later or “refuse” to provide them
affidavit
- a sworn, written statement, subject to penalty
examinations for discovery
- pretrial oral or written examination under oath
Trial (Procedure):
Opening statement sets out issues and facts
Plaintiff presents evidence and calls witnesses
Defendant can cross examine
Defendant presents evidence and calls witnesses
Plaintiff can cross examine
Parties sum up respective cases for the judge
Judge renders a decision with reasons = judgement
Witnesses
Ordinary witnesses
Expert witnesses
Courts insist that “best evidence” be presented
Hearsay evidence not allowed - evidence given by a person that is not within that person’s own direct knowledge
Ordinary witnesses
testify as to what they saw, heard or did (direct evidence)
Expert witnesses
- recognized experts on a subject and give opinion evidence within area of expertise
E.g. Medical experts, accountants
Damages
When a party is successful, the court will award the damages that would restore them to where they would be but for the defendant’s action
Therefore, the party must prove their damages. It is not enough to simply prove that a contract was breached
Many disputes are not about the facts, but about the quantum of damages
Appeal
Either party can appeal to a higher court if one feels the judge erred in application of the law or admission of evidence
Serve a notice of appeal within short time period
Court can:
Affirm decision and dismiss appeal
Admit appeal and reverse or vary decision
Send case back for new trial
Court Costs
Costs litigants incur:
Court costs and counsel fees awarded at discretion of court
Costs litigants incur:
Fees imposed by government
Fees of lawyers or paralegals
Court costs and counsel fees awarded at discretion of court
“Costs on a party-and-party” basis - judge awards successful party costs incurred plus a fixed counsel fee according to a tariff or schedule
“Solicitor-and-client” basis - court orders unsuccessful party to pay plaintiff’s legal expenses
Contingency Fees
Unlike Canada, US uses a contingency fee system
Cons: encourages frivolous litigation and compromises a lawyer’s sense of justice in the search for profit
Pros: allows for greater access to justice, as plaintiffs who could not previously afford to hire a lawyer now can
Most Canadian jurisdiction now allow for some type of contingency fee arrangement
Contingency fee
- lawyer’s fee payable on the condition of winning the case i.e. if lawyer does not win he/she does not get paid
Class Action
- action where a single person represents the interests of a group who will share in any reward
Proceedings require identification and legal recognition that a class exists
Representative plaintiff must fairly represent everyone with enough time, money, understanding of issues and no conflicts of interest
Administrative Tribunals
Boards or commissions charged with regulation certain business activities
Established under specific legislation
Powers set out in statutes
E.g. Canadian Radio-television and Telecommunications
Expected to hold hearings at which affected parties may fairly present their case
Ad hoc tribunals - tribunal established to deal with a particular dispute between parties
Alternative Dispute Resolution (ADR)
Alternatives to the courts
Types:
-Mediation
-Arbitration
Advantages include:
-Speed at which hearings are held
-Informality and confidentiality
- Lower cost
Most common is arbitration - process for settlement of disputes whereby impartial party hears the dispute, then makes a binding decision
Indigenous Justice Systems:
Indigenous Justice Systems:
Quasi-independent Indigenous justice system tries to incorporate traditional values and customs
Community elders and healers are vital
Focus on community inclusion, healing and support
2016 Mohawk band council of Akwesasne created Indigenous legal system outside federal framework
Attorney
- a lawyer
In Canada, all attorneys are both solicitors and barristers
Solicitor
- lawyer who prepares documents and other forms of non-litigious
Traditionally did not appear in court
Barrister
- a lawyer who acts for clients in litigation or criminal court proceedings
