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Business Law 101 > Chapter 2 -Litigation and Alternative Dispute Resolution > Flashcards

Chapter 2 -Litigation and Alternative Dispute Resolution Flashcards

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1
Q

What is litigation?

A

The system of resolving disputes in court

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2
Q

What is the general rule about the court system?

A

All adults are free to use the Canadian courts, whether or not they are Canadian citizens

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3
Q

What is required when someone who is suffering from a mental incapacity is in court?

A

They must use a court-appointed representative

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4
Q

Who must represent children in court?

A

Either a parent or a litigation guardian

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5
Q

True or false: a corporation or company is deemed to be a type of person

A

True, as a matter of law, therefore can sue or be sued

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6
Q

Which type of organizations cannot sue or be sued?

A

Unincorporated organizations, such as clubs and church groups are not classified as legal persons, therefore cannot sue or be sued

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7
Q

What is the result of this prohibition on suing unincorporated organizations?

A

Can sue the individual members of the organizations

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8
Q

True or false: Trade unions can sue or be sued directly?

A

True, although a unincorporated organization, some provinces have legislation in place that allows them to sue or be sued directly

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9
Q

True or false: The government can be sued?

A

True, special rules apply must have consent

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10
Q

What is a class action?

A

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

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11
Q

What are the conditions of class action claims?

A

Common issues, representative plaintiff, notification, preferable procedure, certification

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12
Q

What does “common issues” mean?

A

There must be common issues amongst the various members of the class, every claim does not have to be identical.

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13
Q

What does “representative plaintiff” mean?

A

Must demonstrate a workable plan for fairly representing the interests of the class members

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14
Q

What does “notification” mean?

A

A representative plaintiff must also have a workable plan for notifying potential class members.

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15
Q

True or false: class actions automatically includes every claimant?

A

True, unless the person has expressly opted out within a certain length of time

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16
Q

True or false: every member of that class will be bound by the decision of the court

A

True, people who have not opted out cannot bring separate actions on their own

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17
Q

What does “preferable procedure”?

A

The courts must be convinced that a class action is the preferable procedure, is it too complicated?

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18
Q

What does “Certification” mean?

A

The courts decision to allow the class action.

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19
Q

What is Self-representation?

A

You have the right to represent yourself

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20
Q

Qualifications for becoming a lawyer?

A

Graduate law school, complete a apprenticeship (articling), and pass the bar (exams)

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21
Q

What is the Law Society?

A

A body created to regulate the law profession, imposes codes of conduct and punishes members who act improperly

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22
Q

What is a lawyer?

A

A lawyer is someone who practices law, is qualified to offer advice about the law or represent someone in legal matters.

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23
Q

What is professional liability insurance?

A

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

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24
Q

What is an assurance fund?

A

Law societies create assurance funds to provide compensation to people who have been hurt by dishonest lawyers

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25
Q

What is a paralegal?

A

Not a lawyer but provides legal advice and services

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26
Q

True or false: Paralegals must carry liability insurance?

A

True

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27
Q

What are pleadings?

A

The documents that identify the issues and clarify the nature of a dispute. Prepared by both the plaintiff and the dependant

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28
Q

When do the plaintiff and defendants prepare their pleadings?

A

Must be prepared before the case can appear in court

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29
Q

What is a plaintiff?

A

A person who brings a case against another in a court of law

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30
Q

What is a defendant?

A

A individual, company, or institution sued or accused in a court of law

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31
Q

What is a limitation period?

A

A period of time within which an action must be started

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32
Q

When do claims in contract have to be started?

A

Within six years

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33
Q

When do claims in tort have to be started?

A

Within two years

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34
Q

True or false: There is a move toward a simplified system in relation to limitation periods?

A

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

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35
Q

What are special periods?

A

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

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36
Q

What does Effect of Lapse mean?

A

The consequences of missing a limitation period deadline may also vary. A plaintiff’s rights may end along with the limitation period

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37
Q

What is a statement of claim?

A

Filed by the plaintiff, outlines the dispute, states facts and desired remedies. A lawsuit starts with a statement of claim

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38
Q

What is a relevant period?

A

Period in which the defendant must react, usually less than a month, if they do not react, plaintiff can receive a default judgment

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39
Q

What is a statement of defence?

A

States its version of the facts, how it intends to deny the claim, deny liability

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40
Q

What is a counterclaim?

A

A claim that the defendant makes against the plaintiff

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41
Q

What is a reply?

A

A document in which a party responds to a statement of defence

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42
Q

What can a plaintiff do when they receive a counterclaim?

A

May use a statement of defence to the counterclaim

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43
Q

What is a demand for particulars?

A

Requires the other side to provide additional information (can be either requested of the plaintiff or the defendant)

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44
Q

What is an examination for discovery?

A

A process in which the parties ask each other questions to obtain information about their case (pre-trial activity)

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45
Q

True or false: discoveries are under oath?

A

True, although they occur outside of court, they re still under oath

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46
Q

What is a settlement?

A

Occurs when the parties agree to resolve their dispute out of court

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47
Q

What is a pre-trial conference?

A

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

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48
Q

When are pre-trial conferences initiated?

A

May be required by legislation within the particular jurisdiction, or initiated by either the parties or the judge

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49
Q

What is mediation?

A

A process in which a neutral person -called the mediator- helps the parties reach an agreement. Alberta has adopted a system of mandatory mediation

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50
Q

What occurs when a lawsuit goes to trial?

A

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

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51
Q

What occurs when there is a jury?

A

The judge is responsible for finding the law, the jury is responsible for finding the facts and applying the law

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52
Q

Who does the court hear first from?

A

The plaintiff then the defendant

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53
Q

How does evidence get presented in front of the court?

A

Each side will call witnesses

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54
Q

What are ordinary witnesses?

A

Testify about the facts that they know first-hand

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55
Q

What are expert witnesses?

A

Provide information and opinions based on the evidence

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56
Q

What is an examination-in-chief?

A

When one party, who calls a particular witness will ask questions and receive answers

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57
Q

What is a cross-examine?

A

Provides the other opportunity to vigorously cross-examine the same witness

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58
Q

Canadian law is based on what belief?

A

An Adversarial system is the best way to get to the truth.

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59
Q

What is hearsay evidence?

A

Information that a witness heard from another person. Cannot be tested in court

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60
Q

What is the “standard of proof” in civil lawsuit?

A

the plaintiff has to prove the claim on a balance of probabilities

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61
Q

What does balance of probabilities mean?

A

Every important part of the claim must be probably true.

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62
Q

When is a defendant found liable?

A

Only if the scales are tipped in the plaintiff’s favour.

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63
Q

When is a defendant not found liable?

A

If the scales are either evenly balanced or tipped in the defendant’s favour, then the defendant will not be held liable

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64
Q

What is the “standard of proof” in criminal cases?

A

The Crown has to prove the accused’s guilt beyond a reasonable doubt.

65
Q

What are the usual remedies for criminal cases?

A

The court may impose a fine or prison sentence. Can impose conditional sentences

66
Q

What is a conditional sentence?

A

Allow the criminal to serve time in their own house, rather than in a prison

67
Q

What are the common remedies in civil litigation?

A

Compensatory damages, punitive damages, nominal damages, injunctions, specific performance and rescission

68
Q

What are compensatory damages?

A

Financially repair a loss

69
Q

What are punitive damages?

A

Punish and discourage bad behaviour

70
Q

What are nominal damages?

A

Symbolically recognize wrongful acts even if plaintiff suffered no loss and defendant received no gain

71
Q

What is an injunction?

A

Compels fulfillment of an obligation

72
Q

What is “specific performance”?

A

compels performance of a positive obligation

73
Q

What is rescission?

A

Reverses or eliminates a transaction

74
Q

What is a judgment debtor?

A

A defendant who has been found liable and ordered to pay money to the plaintiff

75
Q

What is a garnishee order?

A

Order from the court that forces the debtors employer to pay part of that income directly to the plaintiff

76
Q

What can occur when a judgment debtor cannot pay their debt?

A

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

77
Q

What is an appeal court?

A

Decides whether a mistake was made in the court below

78
Q

True or false: the losing party is entitled to appeal to a higher court?

A

True

79
Q

What is an appellant?

A

The party who attacks the decision of the lower court

80
Q

What is a respondent?

A

The party who defends the decision of the lower court

81
Q

When must an appeal be started?

A

Normally within 30 days after the trial court gave its decision

82
Q

What is the first difference between trials and appeals?

A

There is only one judge at a trial, appeals are often heard by three judges (can be more).

83
Q

What is the second difference between trials and appeals?

A

Appellate courts do not listen to witnesses or receive evidence.

84
Q

What is the third difference between trials and appeals?

A

Appellate courts normally deal with law, but not facts

85
Q

Role of appellate courts?

A

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

86
Q

True or false: Appeal courts can correct a clear, but reasonable, error of fact?

A

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

87
Q

How do appeal courts operate?

A

by majority rule, therefore appeals are almost always heard by an odd number of judges

88
Q

What is an “appeal dismissed”?

A

If the majority believes that the decision in the court below was correct, it affirms the lower court’s decision

89
Q

What is an “appeal allowed”?

A

If the majority believes that the lower court decision was wrong

90
Q

What are the options available when an “appeal allowed” occurs?

A

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)

91
Q

What is a dissent?

A

An appellate judge who disagrees with the majority

92
Q

What are costs?

A

The expenses that a party incured during litigation

93
Q

True or false: Courts charge fees for filing documents

A

True

94
Q

What do Lawyers charge?

A

Charge for “per hour services” and disbursements

95
Q

What are disbursements?

A

The costs of mailing letters and hiring expert witnesses

96
Q

What is a taxing order?

A

Can order the lawyer to reduce the amount being charged on its client

97
Q

How can a litigant get relief from some of the expenses?

A

A judge has the discretion to order one party to pay costs to the other

98
Q

What is the general rule of costs?

A

Awarded to the side that wins the lawsuit

99
Q

When a judge orders the losing part to pay costs, what basis is this on?

A

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

100
Q

What other order can a judge give?

A

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

101
Q

How can costs be affected? read pg.41-42

A

By an offer to settle. Designed to encourage litigants to accept reasonable offers to sett out of court

102
Q

What is a contingency fee agreement?

A

Requires a client to pay their lawyer only if the lawsuit is successful

103
Q

True or false: A law firm can defer collection of its bill until after the case is finished?

A

True

104
Q

True or false: A contingency fee agreement can allow a lawyer to keep 25 to 40 percent of everything that is won?

A

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

105
Q

What is the Supreme Court of Canada?

A

The highest court in the country, it has nine members: the Chief Justice and eight others (called puisne judges), appointed by the federal government

106
Q

True or false: The Supreme Court is a trial court?

A

False, it hears only appeals from other appellate courts, as a plaintiff must successfully apply for leave, or permission to appeal.

107
Q

When does the Supreme Court grant leave to appeal?

A

Only if a case raises an issue of national importance

108
Q

When a justice dissents a decision made by the Supreme Court, what happens?

A

The majority opinion prevails

109
Q

What are references?

A

Heard by the appellate courts, references are when the government asks for an opinion as to whether a statute is constitutionally valid

110
Q

What is a superior court?

A

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

111
Q

What is a federal court?

A

Federal government appoints the members of three specialized courts that deal only with cases that affect the federal government

112
Q

What is the Tax Court of Canada?

A

Allows a person to dispute the government’s demand for the payment of a tax

113
Q

What sort of trials does the Federal court hear?

A

Trials concerning issues that the Constitution assigned to the federal government

114
Q

What is the Federal Court of Appeal?

A

Hears appeals from the Federal Court and the Tax Court of Canada

115
Q

What is a provincial court?

A

The provincial government appoints members of the provincial courts. Provincial Trial courts include: small claims court, family matters, youth matters and most criminal cases

116
Q

What is small claims court?

A

A type of court that deals with disputes involving limited amounts of money, private disputes

117
Q

What is family court?

A

Deals with matters, such as support payments

118
Q

What is youth court?

A

Deals with matters, such as young offenders and neglected children

119
Q

True or false: more serious trials are moved to the superior courts?

A

True, including private claims involving large amounts of money and crimes such as murder

120
Q

True or false: Decisions in the provincial courts can be appealed to the superior court?

A

True, and in some circumstances, directly to the court of appeal

121
Q

True or false: Small claims courts are very popular with business people

A

True, because they are faster, simply, and less expensive than regular courts

122
Q

What is the advantage of small claims court?

A

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

123
Q

What are disadvantages of small claims court?

A

Geographical limits, types of claim, types of remedies, monetary limits

124
Q

What are the geographical limits of small claims court?

A

The plaintiff must sue either where the relevant event happened or where the defendant lives or carries on business

125
Q

What are the types of claims in small claims court?

A

A case must entail a defendant being asked to pay money or return property that belongs to the plaintiff, cannot evict tenants

126
Q

What are the types of remedies in small claims court?

A

Order the defendant to pay money or return propriety to the plaintiff. Cannot award equitable relief, such as specific performance (fulfilling contract) or injunctions

127
Q

What are the monetary limits of small claims court?

A

The court can only hear small claims. The size of the claim is determined by the amount of money at stake

128
Q

True or false: a claim can be brought in that is worth more than the limit?

A

True, but the excess amount has to be abandon, cannot split a single large claim into two smaller ones

129
Q

What is the Monetary limit on small claims court in Alberta?

A

50 000$

130
Q

What are court hierarchies? there is not just one single court hierarchy

A

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

131
Q

What is the doctrine of precedent?

A

Requires a court to follow any other court that is above it in a hierarchy

132
Q

True or false: there is a separate hierarchy for each province/territory and another for the federal courts?

A

True

133
Q

How many separate court systems are there in Canada?

A

14

134
Q

Features of the Supreme Court of Canada?

A

Is not required to obey an other court but is required to obey the Constitution and legislation

135
Q

Features of the court system within a province?

A

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

136
Q

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?

A

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

137
Q

What is the doctrine of federal paramountcy?

A

States that if a provincial statue and a federal statue are in conflict, the federal statue wins. That rule does not apply to courts

138
Q

True or false: A superior court in Province A is bound by a decisions of the Federal court of appeal?

A

False, provincial courts are not required to follow the federal courts

139
Q

Influence of lower courts?

A

A decision may be persuasive even though it comes from a lower court, especially when the Supreme Court has not yet answered

140
Q

Can a court overuse itself?

A

Yes

141
Q

Rules about obeying within the same line of courts?

A

Although a court does not have to obey a court below it it must obey one that is above it

142
Q

What is the Rule of Law?

A

States that disputes should be settles on the basis of laws, rather than personal opinions

143
Q

How does the concept of a hierarchy and the doctrine of precedent support the Rule of Law?

A

By requiring judges to follow the courts above them, the benefit of this is consistency and respect for the legal system

144
Q

What is an administrative tribunal?

A

A body. somewhere between a government and a court, that resolves issues and disputes that arise in administrative law

145
Q

What is a competition tribunal?

A

Resolves disputes involved unfair business practices, such as price fixing

146
Q

What is the Canadian International Trade Tribunal?

A

Resolves disputed involving Canadian businesses that are affected by unfair trade practices

147
Q

What is an Employment Equity Review Tribunal?

A

Resolves disputes involving discrimination in the workplace

148
Q

What is a Workplace Safety and Insurance Appeals Tribunal?

A

Resolves disputes involving workplace safety and insurance

149
Q

What is a Human rights tribunal?

A

Resolves disputes involving businesses under the Human Rights Codes

150
Q

True or false: Administrative tribunals are quasi-judicial?

A

True, tribunals hear witnesses, receive evidence, provide detailed reasons for their decisions

151
Q

Can decisions made by an administrative body be reviewed?

A

Yes, they can be judicial reviewed but often are not appealed as the people staffed have specialized knowledge and extensive experience in that area

152
Q

What is alternative dispute resolution?

A

Any process that allows the parties to resolve their dispute without going to court. Can be required but is usually voluntary

153
Q

What are the three major types of ADR?

A

Negotiation, Mediation, Arbitration

154
Q

What is negotiation?

A

Discussion aimed at settling a dispute, most common form of ADR

155
Q

What is mediation?

A

A process in which a neutral party -called a mediator- helps the parties reach an agreement

156
Q

What is Arbitration?

A

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

157
Q

What is an arbitration clause?

A

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

158
Q

Who often are arbitrators?

A

Often lawyers or professes who have greater expertise than a judge, as they deal exclusively with specific areas of law

Business Law 101 (6 decks)

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