Chapter 3 Flashcards
Why are trials open to the public?
Justice must be seen to be done
What is needed for a criminal proceeding to find the defendant guilty
Beyond a reasonable doubt
What is the lowest level provincial Canadian court?
The court of Justice.
This account for criminal jurisdiction over the less serious criminal matters, and small claims court, which is around $15-$100,000
Importantly, family courts are a separate body in the provincial system
Court of Kings bench is the highest trial level court. What do they do?
Have unlimited monetary jurisdiction and civil matters and deals with serious criminal issues. Administration of wills estate and bankruptcy courts.
What do the provincial courts of appeal do?
They hear appeals from the lower courts of that province.
An appellant court will only consider a case when there are questions of law and dispute and not questions of fact .
These courts typically do not hold new trials.
They will typically read the transcript the trial as well as trial, judges, decision, and deal with specific objections to the trial, judges, decision submitted by the appellants lawyer
What are the characteristics of the Supreme Court of Canada?
It is the highest court in the country, strictly an appellant function.
Consist of nine judges appointed by the government of Canada. And the decisions present and set binding precedent.
T/F: The court typically requires the disputing parties to have tried dispute resolution mechanisms before a procedure will be instigated.
T
What are limitation periods?
Limitation periods are the fact that court action must be brought within a relatively short period of time from the event, giving rise to the complaint or plaintiff is barred from pursuing the action
Alberta’s limitation act is two years (10 year ultimate drop dead limitation)
What is the test for jurisdiction?
The defendant must prove a real and substantial connection by identifying a connecting factor that links the litigation to the court.
- What is fair to the parties
- What is an efficient resolution of the dispute
Small claims courts are simpler, but why may you not chose this court?
Awards are restricted.
What are the documents used to start and defend a lawsuit?.
Pleadings: statement of claim, statement of defence, statement of counterclaim and defence to counter claim.
What are applications for directions?
Concern what details have to be disclosed, and what questions have to be answered.
In discovery, what is required?
Documents and records, and examination for discovery (which is a verbal examination of witnesses under oath)
What is a pre-trial conference?
Meeting to determine which issues remain to be tried and whether the parties themselves can resolve the dispute.
During the trial what are some key elements when the plaintiff presents their case?
- Burden of proof rests with plaintiff
- Plaintiffs case and witnesses are presented first
- Cross examinations by defendants lawyer
- Plaintiffs lawyer is prohibited from asking leading questions
After the plaintiff presents their case, and the rules of evidence are followed, what happens next?
The defendant will present their case, and both parties summarize evidence to make argument to the court.
During the judgement, what occurs if there is a jury?
The jury will be instructed on matters of law by the judge. The jury is to decide matters of fact and the judge is to decide questions of law.
How are judge alone decisions delivered?
May be immediate, but more typically it will be handed down later in writing.
What are the cost insurances associated with litigation?
The victor may be awarded legal costs, however this is discretionary and typically only cover portion of actual costs.
What are the remedies in litigation?
Damages
-Special, general, or punitive
Accounting
Injunction
Special performance
Declaration
What are special damages?
To reimburse the litigant for expenses or costs incurred before the trial.
What are general damages?
Pain and suffering, or for future lost wages.
What may be a result of enforcement?
Importantly there are no guarantees that the amount awarded will be paid.
There may be seizure of property, garnishment of wages.
T/F: A defendant may have their only car seized for sale in the case that they are unable to pay damages
F - the car is a necessity of life and must not be seized
When is there a case where mediation should not be used?
When blame or liability for injury must be determined.
