Chapter 2 Flashcards by Matthew Short

Litigation

Resolving disputes in the court system

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Class actions

Allowed in most provinces

Allows a single person or small group to sue on behalf of a larger group of people

Allows small individuals to take on organizations

Cost-effective way to sue for small, but widespread claims

Threat of class action may improve big business behaviour

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Class action criteria

Common issue among class members

Representative plaintiff who has workable plan for fairly representing all members

Notification to all potential members

Preferable procedure to traditional litigation
- more efficient than everyone suing individually

Certification by court to allow class action to proceeded

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Legal representation

Self representation lawyer paralegal

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Self representation

Usually only advisable for very simple matters

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Representation by lawyer

Must complete training and be called to the bar after passing exams

Covered by provincial loss societies

Must have professional liability insurance

Communications are confidential and privileged

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Representation by paralegal

Non-lawyer, providing legal advice

Only regulated in some provinces

Regulated paralegals
- Require training and examination
-Have a code of conduct
- Can be punished for wrongdoing
- must have liability insurance
- Are limited in work

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Pleadings

Documents used to identify issue and clarify dispute

All those document from plaintiff and defendant

Drafted by a party
Issued by court
Served on opposing party

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Statement of claim

Filed by plaintiff

Outlines the dispute and states facts and desired remedies

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Statement of defence

Filed by defendant within time limit

Set out defendants version of fax and denies liability

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Petition

Certain action started by petition (bankruptcy)

Initiating party: petitioner

Responding party: respondent

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Counterclaim

Filed by defendant against plaintiff

Defence and counterclaim can be combined

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Statement of defence to counterclaim

Prepared by plaintiff to defend against counterclaim

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Filed by plaintiff to dispute anything in the statement of defence

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Demand for particulars

Either party may require opposing side to provide additional information or clarification

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Third-party claim

Neither plaintiff nor defendant but third-party

Pretrial activity

Documentary discovery

Examinations for discovery
- gathering information under oath

Pretrial conference
- meeting to encourage settlement

Mandatory mediation (Albert and Ontario)

Settlement
- resolving dispute before trial

Limitation periods

General limitation. Is two years from date plaintiff discovered cause for action

Exceptions depending on claim

Equitable remedies

Many on them, something done now, Actionable remedy

Injunction
- warning or order prohibiting person from beginning or continuing action

Trial

Decision-makers
- judge and jury or just judge
Jerry determines facts judge determines laws

Burden of proof
- Criminal: beyond reasonable doubt
- Civil: more likely than not

Criminal litigation outcomes

Guilty or not
Fine or imprisonment

Civil litigation outcomes

Case is proven: legal, or equitable remedy

Case is not: dismissal

Enforcement of litigation

Winning does not guarantee your payment

Can garnish income or seize and sell assets

Appeals

A party may appeal a decision to a higher court

appellant: party disputing lower court decision

Respondent: party supporting lower court decision

No new witnesses or evidence allowed

Re-examining the law not the facts

Panel of three are more judges
-Majority decision prevails

Result of appeal

Affirm decision below Reverse decision below Very decision below Sent back to lower courts for retrial

Costs

General rule that loser pays winners cost

Contingency fees

Client pays lawyer only if lost you to successful Lawyer is paid from judgement proceedings End up paying more than normal But Poor parties can afford litigation

Supreme court of Canada

Highest court in Canada Nine appointed judges No right to proceed to the supreme court - they pick what cases they do

Federal courts (3 kinds)

Tax court Federal court trial division - trials concerning federal division of powers areas Federal court appeal division - appeals arising from trial division and tax court Court Marshall trial and appeal courts - military justice under military code of conduct Judges are appointed by government of Canada

Provincial court

Family court Youth court Criminal court - less serious crimes Small claims court

Small claims court advantages

Ideally, suited for small business disputes Quicker less expensive and less formal than superior courts

Small claims court disadvantages

Geographical limits -must sue where event occurred or defendant lives Types of claims - No federal issues Types of remedies - monetary limits - 15k to 50k

Court hierarchy and precedent

Hierarchy determines appeal route Supreme court is the end of all routes

Administrative tribunals

Somewhere between government and courts Decision-maker usually experts and Fields rarely judges

Judicial review

Administrative tribunal decisions are highly respected and not easily overturned, but can sometimes seek judicial review by court Reasonableness Standard - court defers to tribunal exercise, only overturns unreasonable decisions Correctness Standard - court may overturn any error Substantive decisions -

Alternative dispute resolution

Dispute resolution outside of court Sometimes better than Litigation cuz it’s - slow, expensive, unpredictable - Limited remedies

Advantages of ADR

Sometimes quicker and cheaper Sometimes mandatory sometimes voluntary

Types of ADR

Negotiation - Discussion aimed for settlement between parties Mediation - negotiation with mediator - aimed at settlement Arbitration - dispute resolved by an arbitrator - arbitrators decision is binding on parties -process may be informal or core like

Hearsay

When it’s not first-hand information, for example, my sister saw