Chapter 2: Litigation and Alternative Dispute Resolution Flashcards
Litigation
The system of resolving disputes in court.
Do many cases go to court?
No, very few do.
Can a non-citizen be involved in Canadian litigation?
Yes.
Can a mentally incapacitated person be involved in Canadian litigation?
Only if they use a court-appointed representative.
Can a child be involved in Canadian litigation?
Only if they are represented by a parent or litigation guardian.
What is the exception to the rule that unincorporated organizations cannot sue or be sued?
Trade unions.
Special rules apply when the ___ is sued.
Crown.
What rules apply when the Crown is being sued?
You cannot sue the Crown unless the Crown permits it.
Class Action
Allows a single person, or a small group of people, to sue on behalf of a larger group of claimants.
What are some common class action claims?
- Product liability (prescription drugs).
- Mass torts (contaminated water).
- Workplace discrimination.
- Clubs and churches (sexual abuse of children).
- Banking law (improper fees).
- Business law (price fixing).
- Company law (misleading information).
- Securities law (insider trading).
What is the attraction of class action lawsuits?
- Allow small individuals to take on organizations.
- Threat may prevent wrong from occurring in first place.
- Class actions save society money, as each claim is not dealt with individually.
What are the 5 things required for a class action?
- Common issues.
- Representative plaintiff.
- Notification.
- Preferable procedure.
- Certification.
Common Issues
Indicates that class action lawsuits must have a common issue between the various members of the class.
Do all members of a class have to be identical?
No, special conditions can be set up.
Representative Plaintiff
A plaintiff muts demonstrate a workable plan for fairly representing all plaintiffs.
Notification
A class action lawsuit concept where the representative plaintiff must notify all potential members of a class.
A class action includes all members of a class who have opted in. True or false?
False, they include all members of a class who have not opted out.
Preferable Procedure
A class action lawsuit concept that says that the court must be convinced that the class action lawsuit is the preferable procedure for dealing with the claims.
Certification
The court’s decision to allow the various claims to be joined together and proceed as a class action.
What is the most important part of a class action lawsuit?
Certification.
Conversations with your lawyer are ___ and ___.
Confidential and privileged.
Professional Liability Insurance
A client to receive compensation from a lawyer’s insurance company if the lawyer has acted carelessly.
Assurance
Fund that provides compensation to people who have been hurt by dishonest lawyers.
Paralegal
Not a lawyer, but provides legal advice and services.
Pleadings
The documents used to identify the issues and clarify the nature of the dispute.
Plaintiff
The person who is making the complaint.
Defendant
The person about whom the complaint is being made.
Limitation Period
A period of time within which an action must be started.
Statement of Claim
A document in which the plaintiff outlines the nature of the complaint.
Statement of Defence
A document in which the defendant sets out in its version of the facts and indicates how it intends to deny the claim.
Counterclaim
A claim that the defendant makes against the plaintiff.
Reply
A document in which a party responds to a statement of defence.
Demand for Particulars
Requires the other side to provide additional information.
Examinations for Discovery
A process in which the parties ask each other to obtain information about their case.
Settlement
Occurs when the parties agree to resolve their dispute out of court.
Pre-Trial Conference
A meeting that occurs between the parties and a judge.
Mediation
A process in which a neutral person – called a mediator – helps the parties reach an agreement.
Evidence
Consists of the information that is provided in support of an argument.
Hearsay Evidence
Information that a witness heard from another person, rather than directly from the source.
Judgement Debtor
A defendant who has been found liable and ordered to pay money to the plaintiff.
Can information uncovered during an examination for discovery be used in court?
Since it is under oath, yes.
What percentage of claims are resolved outside of court?
Over 95%.
True or false? You can have a jury in civil litigation.
False.
Ordinary Witnesses
Testify about facts they know first-hand.
Expert Witnesses
Provide information and opinions based on evidence.
Examination-In-Chief
Party that calls witness.
Cross-Examination
Opportunity for the opposing party to vigorously question the same witness.
Adversarial System
Each side is encouraged to present its own version of events and attack the other’s story.
Courts typically only hear ___ evidence.
Direct (as opposed to hearsay).
Plaintiffs must prove their case based on…
A balance of probabilities.
Balance of Probabilities
Every part of their claim must be probably true.
What must the Crown prove their case on?
The standard of “beyond a reasonable doubt.”
Garnishee
Obtain the judgement debtor’s income from their employer.
Seize and Sell
Obtaining the judgement debtor’s assets (but with some limitations).
Appeal Court
Decides whether a mistake was made in the court below.
Appellant
The party who attacks the decision of the lower court.
Respondent
The party who defends the decision of the lower court.
When do appellant judges look at evidence?
When the presiding judge in the lower court made a palpable and overriding error.
How many judges are there in an appellate court?
Three.
What does the appellate court mainly deal with?
The law, not facts or evidence.
True or false? A unanimous decision is required in appellate court.
False, majority rules.
What are possible outcomes resulting from an appellate trial?
- Affirm lower court’s decision.
- Reverse lower court’s decision.
- Vary lower court’s decision.
- Send the case back for re-trial.
Dissent
Judge who separates themselves from the majority.
Taxing Officer
A member of the court that orders a lawyer to lower the amount they charge to clients.
Examples of disbursements:
Mailing letters or calling expert witnesses.
Costs
Expenses that a party incurred during litigation.
Why is losing a court case like losing twice?
Because they lose the lawsuit, and they typically have to pay costs.
Costs on a party-and-party basis:
The idea that you do not recover costs, even if you win the court case. The costs you recover from the losing party is less than what the lawyer charges you.
Costs on a solicitor-and-party basis:
Losers have to pay a much greater share of the winner’s actual costs. Awarded when the lawsuit was frivolous and vexatious.
Frivolous and Vexatious
If the plaintiff knew they did not have a good claim, but sued the defendant anyways.
Contingency Fee Agreement
Requires a client to pay their lawyer only if the lawsuit is successful.
Pros of contingency fees:
Allow individuals or small businesses to take on larger corporations with deeper pockets without fear of being financially ruined.
Cons of contingency fees:
Client is required to pay more than usual if the case is won (25 to 40%).
The SCC is made of of the Chief Justice and the ___ ___.
Puisne Judges.
You must request permission from the SCC to have your case heard, also known as ___.
Leave.
What are the judges of the SCC called?
Justices.
Federal Court
Deals with issues such as tax, constitutional issues, copyright, bills of exchange, and telecommunications.
What are the 4 types of cases in provincial court?
- Small claims.
- Family matters.
- Youth matters.
- Criminal matters.
Small Claims Court
A type of court that deals with disputes involving limited amounts of money.
Limits on small claims courts:
- Geographical.
- Types of claims.
- Types of remedies.
- Monetary limits.
Hierarchy of Courts
Courts are arranged in a hierarchy according to their importance.
Doctrine of Precedent
Requires a court to follow any other court that is above it in a hierarchy.
Does the Superior Court have to obey the Court of Appeal in a separate province, or the appeal division of the federal court?
No.
Do courts always have to abide by their own past rulings?
Not necessarily. They can overrule themselves in appropriate circumstances.
Rule of Law
States that disputes should be settled on the basis of laws, rather than personal opinions.
Give examples of administrative tribunals:
The NPB or the egg-marketing board.
Administrative Tribunal
A body, somewhere between a government and a court, that resolves issues and disputes that arise in administrative law.
True or false? Judges sit on administrative tribunals.
False.
Privative Clause
A statutory provision that attempts to prevent a court from exercising judicial review over a tribunal decision.
Judicial Review
A process aimed at determining whether an administrative body’s decision is valid.
Ultra Vires
Beyond the authority. Occurs when an administrative body acts outside of the scope of authority granted to it by the Constitution.
What can judicial review be conducted on?
Issues of substance of issues of procedure.
What are the 2 standards for judicial review?
- Reasonableness.
2. Correctness.
What are the 4 questions that have to be considered in the process of judicial review?
- Privative clause.
- Expertise.
- Purpose.
- Nature.
Rules of Natural Justice
Requires that a decision must be the product of a fair process.
What is the two part test determining whether the rules of natural justice apply?
- The governing legislation may settle the matter.
2. If the answer is not clear from legislation, consider nature, relationship, and effect.
Certiorari
Brings an administrative decision into a court to have it struck down.
Prohibition
Orders an administrative body not to proceed with a matter.
Mandamus
Directs an administrative body to perform its duties correctly.
Declaration
Issued by a court to provide an enforceable statement of a parties’ rights and obligations.
Alternative Dispute Resolution (ADR)
Process that allows the parties to resolve their dispute without going to court.
Is ADR always voluntary?
It is most of the time, but not always.
When is ADR used in criminal cases?
Sentencing circles.
What are the three major types of ADR?
- Negotiation.
- Mediation.
- Arbitration.
Negotiation
A discussion aimed at settling a dispute.
What are the advantages of negotiation?
- Quicker, less complicated, less expensive.
- Parties control process and decide outcomes.
- Helps parties remain on good terms.
- Private.
What are the disadvantages of negotiation?
- Requires co-operation.
- Can be used to drag matter out.
- Ineffective when unequal bargaining power.
- Confidentiality may be undesirable.
- No guarantee of success.
- Insurance complications.
Mediation
A process in which a neutral party – called a mediator – helps the parties reach an agreement.
Is mediation binding?
No.
Does the mediator give a decision?
No.
Do parties have to obey orders in mediation?
No.
Arbitration
A processi n which a neutral third person, called an arbitrator, imposes a decision on the parties.
Arbitration is between ___ and ___.
Mediation, litigation.
What are the 2 important features of arbitration that is shared with the court process?
Parties do not control the outcome, and parties are required to obey someone else’s decision.
Arbitration Clause
Clause that requires parties to submit to binding arbitration.
True or false? Judges are often more knowledgeable in the subject matter they are hearing than arbitrators.
False, arbitrators are often more knowledgeable.
Pleadings
Documents used in a lawsuit.
Before parties go to trial, an ___ ___ ___ is conducted.
Examination for discovery.
Instead of guilty / not guilty (in criminal), civil courts determine whether…
You are liable / not liable.
