Chapter 2 -Litigation and Alternative Dispute Resolution Flashcards
What is litigation?
The system of resolving disputes in court
What is the general rule about the court system?
All adults are free to use the Canadian courts, whether or not they are Canadian citizens
What is required when someone who is suffering from a mental incapacity is in court?
They must use a court-appointed representative
Who must represent children in court?
Either a parent or a litigation guardian
True or false: a corporation or company is deemed to be a type of person
True, as a matter of law, therefore can sue or be sued
Which type of organizations cannot sue or be sued?
Unincorporated organizations, such as clubs and church groups are not classified as legal persons, therefore cannot sue or be sued
What is the result of this prohibition on suing unincorporated organizations?
Can sue the individual members of the organizations
True or false: Trade unions can sue or be sued directly?
True, although a unincorporated organization, some provinces have legislation in place that allows them to sue or be sued directly
True or false: The government can be sued?
True, special rules apply must have consent
What is a class action?
Allows a single person, or a small group of people to sue on behalf of a larger group of claimants
What are the conditions of class action claims?
Common issues, representative plaintiff, notification, preferable procedure, certification
What does “common issues” mean?
There must be common issues amongst the various members of the class, every claim does not have to be identical.
What does “representative plaintiff” mean?
Must demonstrate a workable plan for fairly representing the interests of the class members
What does “notification” mean?
A representative plaintiff must also have a workable plan for notifying potential class members.
True or false: class actions automatically includes every claimant?
True, unless the person has expressly opted out within a certain length of time
True or false: every member of that class will be bound by the decision of the court
True, people who have not opted out cannot bring separate actions on their own
What does “preferable procedure”?
The courts must be convinced that a class action is the preferable procedure, is it too complicated?
What does “Certification” mean?
The courts decision to allow the class action.
What is Self-representation?
You have the right to represent yourself
Qualifications for becoming a lawyer?
Graduate law school, complete a apprenticeship (articling), and pass the bar (exams)
What is the Law Society?
A body created to regulate the law profession, imposes codes of conduct and punishes members who act improperly
What is a lawyer?
A lawyer is someone who practices law, is qualified to offer advice about the law or represent someone in legal matters.
What is professional liability insurance?
Allows a client to receive compensation from a lawyer’s insurance company if the lawyer has acted carelessly (sue for professional negligence). Law societies require every lawyer to hold professional liability insurance
What is an assurance fund?
Law societies create assurance funds to provide compensation to people who have been hurt by dishonest lawyers
What is a paralegal?
Not a lawyer but provides legal advice and services
True or false: Paralegals must carry liability insurance?
True
What are pleadings?
The documents that identify the issues and clarify the nature of a dispute. Prepared by both the plaintiff and the dependant
When do the plaintiff and defendants prepare their pleadings?
Must be prepared before the case can appear in court
What is a plaintiff?
A person who brings a case against another in a court of law
What is a defendant?
A individual, company, or institution sued or accused in a court of law
What is a limitation period?
A period of time within which an action must be started
When do claims in contract have to be started?
Within six years
When do claims in tort have to be started?
Within two years
True or false: There is a move toward a simplified system in relation to limitation periods?
True, in which most claims must be started within two years form the day on which the plaintiff discovered, or should have discovered, the cause of action
What are special periods?
Outside of the general limitation provisions, periods vary considerably. Ex: necessary to act quickly if you intend to sue the Crown, but may have 20 years to sue someone who has been improperly occupying your land
What does Effect of Lapse mean?
The consequences of missing a limitation period deadline may also vary. A plaintiff’s rights may end along with the limitation period
What is a statement of claim?
Filed by the plaintiff, outlines the dispute, states facts and desired remedies. A lawsuit starts with a statement of claim
What is a relevant period?
Period in which the defendant must react, usually less than a month, if they do not react, plaintiff can receive a default judgment
What is a statement of defence?
States its version of the facts, how it intends to deny the claim, deny liability
What is a counterclaim?
A claim that the defendant makes against the plaintiff
What is a reply?
A document in which a party responds to a statement of defence
What can a plaintiff do when they receive a counterclaim?
May use a statement of defence to the counterclaim
What is a demand for particulars?
Requires the other side to provide additional information (can be either requested of the plaintiff or the defendant)
What is an examination for discovery?
A process in which the parties ask each other questions to obtain information about their case (pre-trial activity)
True or false: discoveries are under oath?
True, although they occur outside of court, they re still under oath
What is a settlement?
Occurs when the parties agree to resolve their dispute out of court
What is a pre-trial conference?
A meeting that occurs between the parties and a judge. After the parties outline their positions, the judge may indicate which of them is likely to win if the case goes to trial, may persuade to settle
When are pre-trial conferences initiated?
May be required by legislation within the particular jurisdiction, or initiated by either the parties or the judge
What is mediation?
A process in which a neutral person -called the mediator- helps the parties reach an agreement. Alberta has adopted a system of mandatory mediation
What occurs when a lawsuit goes to trial?
Decided by a judge, especially in civil litigation. In criminal cases, the person accused of a crime generally has the option of appearing before a jury
What occurs when there is a jury?
The judge is responsible for finding the law, the jury is responsible for finding the facts and applying the law
Who does the court hear first from?
The plaintiff then the defendant
How does evidence get presented in front of the court?
Each side will call witnesses
What are ordinary witnesses?
Testify about the facts that they know first-hand
What are expert witnesses?
Provide information and opinions based on the evidence
What is an examination-in-chief?
When one party, who calls a particular witness will ask questions and receive answers
What is a cross-examine?
Provides the other opportunity to vigorously cross-examine the same witness
Canadian law is based on what belief?
An Adversarial system is the best way to get to the truth.
What is hearsay evidence?
Information that a witness heard from another person. Cannot be tested in court
What is the “standard of proof” in civil lawsuit?
the plaintiff has to prove the claim on a balance of probabilities
What does balance of probabilities mean?
Every important part of the claim must be probably true.
When is a defendant found liable?
Only if the scales are tipped in the plaintiff’s favour.
When is a defendant not found liable?
If the scales are either evenly balanced or tipped in the defendant’s favour, then the defendant will not be held liable
What is the “standard of proof” in criminal cases?
The Crown has to prove the accused’s guilt beyond a reasonable doubt.
What are the usual remedies for criminal cases?
The court may impose a fine or prison sentence. Can impose conditional sentences
What is a conditional sentence?
Allow the criminal to serve time in their own house, rather than in a prison
What are the common remedies in civil litigation?
Compensatory damages, punitive damages, nominal damages, injunctions, specific performance and rescission
What are compensatory damages?
Financially repair a loss
What are punitive damages?
Punish and discourage bad behaviour
What are nominal damages?
Symbolically recognize wrongful acts even if plaintiff suffered no loss and defendant received no gain
What is an injunction?
Compels fulfillment of an obligation
What is “specific performance”?
compels performance of a positive obligation
What is rescission?
Reverses or eliminates a transaction
What is a judgment debtor?
A defendant who has been found liable and ordered to pay money to the plaintiff
What is a garnishee order?
Order from the court that forces the debtors employer to pay part of that income directly to the plaintiff
What can occur when a judgment debtor cannot pay their debt?
The courts can allow some of the judgment debtor’s assets to be seized and sold. The sale proceeds can then be used to satisfy the judgment
What is an appeal court?
Decides whether a mistake was made in the court below
True or false: the losing party is entitled to appeal to a higher court?
True
What is an appellant?
The party who attacks the decision of the lower court
What is a respondent?
The party who defends the decision of the lower court
When must an appeal be started?
Normally within 30 days after the trial court gave its decision
What is the first difference between trials and appeals?
There is only one judge at a trial, appeals are often heard by three judges (can be more).
What is the second difference between trials and appeals?
Appellate courts do not listen to witnesses or receive evidence.
What is the third difference between trials and appeals?
Appellate courts normally deal with law, but not facts
Role of appellate courts?
Appellate courts will correct any wrong of law that occurred in the lower court. They will not overturn a finding of fact unless the trial judge has made significant error
True or false: Appeal courts can correct a clear, but reasonable, error of fact?
No they cannot, in order to promote respect for trial courts and recognizes that trial judges, who actually see and hear witnesses, have the best opportunity to find facts
How do appeal courts operate?
by majority rule, therefore appeals are almost always heard by an odd number of judges
What is an “appeal dismissed”?
If the majority believes that the decision in the court below was correct, it affirms the lower court’s decision
What is an “appeal allowed”?
If the majority believes that the lower court decision was wrong
What are the options available when an “appeal allowed” occurs?
May reverse the lower court decision, vary some part of the decision, or send the case back for a re-trial (if the appeal court does not have enough information to make the right decision itself)
What is a dissent?
An appellate judge who disagrees with the majority
What are costs?
The expenses that a party incured during litigation
True or false: Courts charge fees for filing documents
True
What do Lawyers charge?
Charge for “per hour services” and disbursements
What are disbursements?
The costs of mailing letters and hiring expert witnesses
What is a taxing order?
Can order the lawyer to reduce the amount being charged on its client
How can a litigant get relief from some of the expenses?
A judge has the discretion to order one party to pay costs to the other
What is the general rule of costs?
Awarded to the side that wins the lawsuit
When a judge orders the losing part to pay costs, what basis is this on?
A party-and-party basis. The amount that the winning party is entitled to receive is determined by regulations, and is almost always less than what the winning party must pay their own lawyer
What other order can a judge give?
May award costs on a solicitor-and client basis, meaning the loser will have to pay for a much greater share of the winner’s actual costs
How can costs be affected? read pg.41-42
By an offer to settle. Designed to encourage litigants to accept reasonable offers to sett out of court
What is a contingency fee agreement?
Requires a client to pay their lawyer only if the lawsuit is successful
True or false: A law firm can defer collection of its bill until after the case is finished?
True
True or false: A contingency fee agreement can allow a lawyer to keep 25 to 40 percent of everything that is won?
True, as one of the disadvantages, the amount will depend upon the circumstances, may also encourage a lawyer to settle a claim quickly and cheaply
What is the Supreme Court of Canada?
The highest court in the country, it has nine members: the Chief Justice and eight others (called puisne judges), appointed by the federal government
True or false: The Supreme Court is a trial court?
False, it hears only appeals from other appellate courts, as a plaintiff must successfully apply for leave, or permission to appeal.
When does the Supreme Court grant leave to appeal?
Only if a case raises an issue of national importance
When a justice dissents a decision made by the Supreme Court, what happens?
The majority opinion prevails
What are references?
Heard by the appellate courts, references are when the government asks for an opinion as to whether a statute is constitutionally valid
What is a superior court?
Main role is to hear trials. Federal governs appoints judges to the superior court in each province/territory. Can hear appeals from lower courts. In Alberta, it is the Queen’s Bench
What is a federal court?
Federal government appoints the members of three specialized courts that deal only with cases that affect the federal government
What is the Tax Court of Canada?
Allows a person to dispute the government’s demand for the payment of a tax
What sort of trials does the Federal court hear?
Trials concerning issues that the Constitution assigned to the federal government
What is the Federal Court of Appeal?
Hears appeals from the Federal Court and the Tax Court of Canada
What is a provincial court?
The provincial government appoints members of the provincial courts. Provincial Trial courts include: small claims court, family matters, youth matters and most criminal cases
What is small claims court?
A type of court that deals with disputes involving limited amounts of money, private disputes
What is family court?
Deals with matters, such as support payments
What is youth court?
Deals with matters, such as young offenders and neglected children
True or false: more serious trials are moved to the superior courts?
True, including private claims involving large amounts of money and crimes such as murder
True or false: Decisions in the provincial courts can be appealed to the superior court?
True, and in some circumstances, directly to the court of appeal
True or false: Small claims courts are very popular with business people
True, because they are faster, simply, and less expensive than regular courts
What is the advantage of small claims court?
Because rules and procedures are less complicated, many parties act on their own belief (though entitled to use lawyers or paralegals). Still must pay court fees
What are disadvantages of small claims court?
Geographical limits, types of claim, types of remedies, monetary limits
What are the geographical limits of small claims court?
The plaintiff must sue either where the relevant event happened or where the defendant lives or carries on business
What are the types of claims in small claims court?
A case must entail a defendant being asked to pay money or return property that belongs to the plaintiff, cannot evict tenants
What are the types of remedies in small claims court?
Order the defendant to pay money or return propriety to the plaintiff. Cannot award equitable relief, such as specific performance (fulfilling contract) or injunctions
What are the monetary limits of small claims court?
The court can only hear small claims. The size of the claim is determined by the amount of money at stake
True or false: a claim can be brought in that is worth more than the limit?
True, but the excess amount has to be abandon, cannot split a single large claim into two smaller ones
What is the Monetary limit on small claims court in Alberta?
50 000$
What are court hierarchies? there is not just one single court hierarchy
Cours are arranged in a hierarchy according to their importance, Determines where a party needs to go for the purposes of a trial or an appeal, also determines which rules each court must apply
What is the doctrine of precedent?
Requires a court to follow any other court that is above it in a hierarchy
True or false: there is a separate hierarchy for each province/territory and another for the federal courts?
True
How many separate court systems are there in Canada?
14
Features of the Supreme Court of Canada?
Is not required to obey an other court but is required to obey the Constitution and legislation
Features of the court system within a province?
The superior court of province A must obey both the Court of Appeal of Province A and the Supreme Court. A Province B does not have to obey the court of appeal in province A
What can a trial judge in Province A do when they have a difficult case and neither the Court of Appeal for Province A nor the Supreme Court has decided one like it?
Can look elsewhere, help may be found in the Court of Appeal of Province B, or from a court in another country. Decisions are not binding but merely persuasive
What is the doctrine of federal paramountcy?
States that if a provincial statue and a federal statue are in conflict, the federal statue wins. That rule does not apply to courts
True or false: A superior court in Province A is bound by a decisions of the Federal court of appeal?
False, provincial courts are not required to follow the federal courts
Influence of lower courts?
A decision may be persuasive even though it comes from a lower court, especially when the Supreme Court has not yet answered
Can a court overuse itself?
Yes
Rules about obeying within the same line of courts?
Although a court does not have to obey a court below it it must obey one that is above it
What is the Rule of Law?
States that disputes should be settles on the basis of laws, rather than personal opinions
How does the concept of a hierarchy and the doctrine of precedent support the Rule of Law?
By requiring judges to follow the courts above them, the benefit of this is consistency and respect for the legal system
What is an administrative tribunal?
A body. somewhere between a government and a court, that resolves issues and disputes that arise in administrative law
What is a competition tribunal?
Resolves disputes involved unfair business practices, such as price fixing
What is the Canadian International Trade Tribunal?
Resolves disputed involving Canadian businesses that are affected by unfair trade practices
What is an Employment Equity Review Tribunal?
Resolves disputes involving discrimination in the workplace
What is a Workplace Safety and Insurance Appeals Tribunal?
Resolves disputes involving workplace safety and insurance
What is a Human rights tribunal?
Resolves disputes involving businesses under the Human Rights Codes
True or false: Administrative tribunals are quasi-judicial?
True, tribunals hear witnesses, receive evidence, provide detailed reasons for their decisions
Can decisions made by an administrative body be reviewed?
Yes, they can be judicial reviewed but often are not appealed as the people staffed have specialized knowledge and extensive experience in that area
What is alternative dispute resolution?
Any process that allows the parties to resolve their dispute without going to court. Can be required but is usually voluntary
What are the three major types of ADR?
Negotiation, Mediation, Arbitration
What is negotiation?
Discussion aimed at settling a dispute, most common form of ADR
What is mediation?
A process in which a neutral party -called a mediator- helps the parties reach an agreement
What is Arbitration?
A process in which a neutral third person -called an arbitrator- imposes a decision on the parties, parties do not control outcome and are required to obey someone else’s decision
What is an arbitration clause?
A clause within a contract, that requires the parties to submit to binding arbitration, an arbitrator’s decision can usually be taken to court and enforced in much the same way as a judgment
Who often are arbitrators?
Often lawyers or professes who have greater expertise than a judge, as they deal exclusively with specific areas of law
