Chapter 3: The Resolution of Disputes: The Courts and Alternatives to Litigation

Question 1

Administrative Law

Answer 1

the rules and regulations governing the function and powers of the executive branch of government

Look like courts but they are not!

Decision-making powers are often abused

Question 2

Alternatives to Court Action

Answer 2

LO 3.1 Examine the alternative dispute resolution (ADR)

methods: negotiation, mediation, and arbitration

Question 3

Alternative dispute resolution (ADR)

Answer 3

the use of processes such as negotiation, mediation, and arbitration to resolve disputes instead of court action

For example, the collaborative divorce process involves an ADR approach in which the parties and their lawyers sign a contract agreeing not to go to court

Question 4

What qualifies as a method of ADR?

Answer 4

Any strategy that is used as a substitute for court action

Question 5

3 main types of ADR

Answer 5

1) Negotiation
2) Mediation
3) Arbitration

Question 6

1) Negotiation

Answer 6

When the decision making is left in the hands of
the disputing parties to work out for themselves

direct communication between the parties to a dispute in an effort to resolve the problems without third-party intervention; transferring negotiable instruments to third parties

Should be the first recourse for people in disagreement!!!

Both sides must be willing to enter into negotiations, and the goal must be to find a solution even if
that means making concessions

Negotiation can be as simple as a phone conversation, an exchange of correspondence, or sitting down together in a private meeting; any meeting with the goal of resolving a dispute qualifies as a negotiation.

the process is cooperative and non-binding, either side can withdraw from the negotiations if the other is being unreasonable or intransigent

Successful negotiation requires an understanding of the issues and a willingness to cooperate and compromise

It may not always be possible to reach a win–win
solution, but satisfactory results often involve both sides cooperating to minimize their losses

Question 7

2) Mediation

Answer 7

When a neutral third party assists the parties in
coming to a resolution on their own

a discussion between the parties to a dispute that is facilitated by a mediator in an effort to encourage and assist them in coming to an agreement

Biggest difference between negotiation: mediation involves a neutral third party, hopefully properly trained, who assists the parties to come to an agreement

Often only a few meetings are necessary, with the main objective of the mediator being to find some common ground between the parties

The mediator will meet with both parties together and separately, using a variety of techniques to find some area of agreement and developing compromises between the parties, which can be used to encourage a settlement

Once an agreement is reached it can be enforced just like any other contract

Mediation works well when highly confidential or sensitive information that should not be disclosed to the public is involved, a speedy resolution is vital, good ongoing relations must be maintained, there is some trust involved, or both parties are desirous of reaching a settlement

Question 8

3) Arbitration

Answer 8

When a third party makes a binding decision in the
matter under dispute

the submission of parties in a dispute to having an arbitrator make a binding decision on their claims

In most cases arbitration is voluntary but, in some situations, such as labour relations, the parties are required by statute to agree to some arbitration
mechanism as part of the collective agreement process

In some instances, arbitration is agreed upon before any dispute has arisen by including a requirement to arbitrate in the original contract

Arbitration can be very effective when external disputes arise with creditors, suppliers, or customers, and even internally with employees and shareholders or between departments

Commonly used in resolving disputes arising from international trade agreements

Uses an arbitrator

Formal rules of evidence need not be adhered to, nor is the arbitrator required to follow precedent in reaching the decision

An arbitrator’s decision is binding on the parties and
is generally not appealable

Most jurisdictions provide that the decisions reached by arbitrators are binding and enforceable

Arbitration is more costly than other
forms of ADR because it is more formal and involves more people, but it is still much less expensive than the litigation process ($$$)

Question 9

Summary and Comparison of Litigation and ADR Methods

Answer 9

See Table 3.1

Question 10

Advantages of ADR Versus Litigation

Answer 10

One is the retention of control of the matter by the people most affected by it.

When other resolution processes are used, there are fewer procedural and scheduling delays because these matters are controlled by the parties themselves.

ADR allows directors, managers, and employees to not be distracted with a court battle and stuck providing information, preparing to testify, and over see the process

The matter can be kept private, avoiding negative publicity and the disclosure of sensitive information, as well as the reduced risk of an adverse judgment

Litigation—in which questioning the
opposition’s credibility and honesty is routine—is adversarial in nature, often resulting in bitterness and animosity between the parties, thereby poisoning any future business relationship. ADR can avoid this and may strengthen the relationship

ADR has flexibility

Even cultural differences can be taken into
consideration (resolve international conflicts)

ADR can even be used to resolve internal disputes within an organization, often in an informal atmosphere with a quick resolution that is satisfactory to all.

Arbitration is faster, less
costly, and more private than litigation

From Class:

• Less delay
• Less distraction
• Less expensive (hmm not always)
• Risk of adverse judgment reduced)
• Good relationship can be maintained
• More flexibility
• Can resolve international conflict

Question 11

Disadvantages of ADR Versus Litigation

Answer 11

ADR does not always judicial fairness and impartiality

The courts have no prior interest in the parties but can easily extract information from parties, which is not present outside the litigation process

A mediator cannot ensure that all relevant information has been brought forward

In the court system, there are safeguards and rules in place to ensure that each side gets a fair hearing.

If parties are using ADR and there is a power imbalance, there is the danger that the stronger party
will take advantage of the weaker

ADR does not use or set precedent, and decisions will not be made public to set deterrence for future criminals

There is no appeal system like courts have

From Lecture:

• Cannot ensure fair hearing
• Does little to overcome power imbalance
• Cannot ensure consistent outcomes
• Decisions are not usually appealable

Question 12

_________ should be the first recourse for people who find themselves in a disagreement—too often, it is the last

Answer 12

Negotiation

Question 13

Without prejudice

Answer 13

words that, when used during negotiation, are a declaration that concessions, compromises, and admissions made by a party cannot be used against that party in subsequent litigation

Question 14

Mediator (aka conciliator)

Answer 14

a neutral third party who facilitates discussion between parties to a dispute to encourage and assist their coming to an agreement

Question 15

Successful Mediator

Answer 15

Require considerable specialized training

There are organizations that provide membership and certification and set recognized professional standards

Question 16

Disadvantages of Mediation

Answer 16

Mediators have little power to compel parties to produce evidence and documentation when they are unwilling to do so.

Also, when one of the parties is weaker, mediation may just exacerbate that weakness (i.e. family disputes)

Also, when one of the parties is suspected of acting
in bad faith, mediation is simply inappropriate, because trust is such an important component of the mediation process

Question 17

Arbitrator

Answer 17

A panel or other third party that has been given the authority to make a binding decision on a dispute between parties

Organizations of professional arbitrators not only provide training and certification, but also set professional and ethical standards requiring that their members be properly trained, avoid conflicts of interest, be free of bias, and keep in strict confidence all information they obtain

Question 18

Disadvantages of arbitration

Answer 18

Arbitration is still more costly and likely more time consuming than other forms of ADR

There may be little certainty or predictability, as
precedents are usually not binding, and animosity between the parties may actually increase as a result of this adversarial process.

Question 19

Finally, _______ and ________ are becoming more common in resolving online disputes

Answer 19

mediation and arbitration

Using ADR for online disputes overcomes geographical issues, reduces costs, and enables a quick resolution of disputes

Question 20

Online dispute resolution (ODR)

Answer 20

Programs have been developed to help
resolve disputes between parties

Consumer Protection BC provides an
online dispute resolution portal designed to enable consumers and businesses to resolve their disputes using ODR

Question 21

The Courts

Answer 21

LO 3.2 Describe the court system in Canada

Question 22

Jurisdiction definition

Answer 22

Legal authority and scope of power; the Constitution Act, 1867 delegated responsibility for matters to federal or provincial governments, thus giving them distinct jurisdiction to create laws in those areas.

Also refers to the province whose courts have the right to hear and resolve a dispute

For example, is this civil law or criminal law, each has their own jurisdiction?

Question 23

As a general rule, Canadian courts are open to the public

Answer 23

The principle is that justice not only must be done but also must be seen to be done; no matter how prominent the citizen and no matter how scandalous the action, the procedures are open and available to the public and the press

Question 24

In-camera hearings

Answer 24

part of a trial proceeding that is closed to the public

Question 25

When are names not disclosed in court?

Answer 25

When children are involved

Or in cases involving sexual assaults

Question 26

Balance of probabilities

Answer 26

the burden of proof in civil matters; the person making the claim must provide evidence to convince the court that there is a greater than 50 percent likelihood that the event took place as claimed

Question 27

Criminal prosecutions

Answer 27

When a crime has been committed, the offence is against the state and the victims of the crime are witnesses at the trial

Since the action is taken by the government (the Crown) against the accused, such cases are
cited as “R. v. Jones”

Burden of proof: Beyond a reasonable doubt (this is extreme, like you are 99% sure they are guilty)

Question 28

“R. v. Jones”

Answer 28

(The “R.” stands for either Rex or Regina, depending on whether a king or queen is enthroned at the time
of the prosecution.)

Jones is the last name of the criminal

Question 29

Beyond reasonable doubt

Answer 29

the burden of proof in criminal matters; the government must provide evidence to convince the court that the accused committed the crime beyond a reasonable doubt; the accused will be found “not guilty” if there
is reasonable doubt that he committed the crime

Question 30

Criminal law is restricted to the matters found in the _________,

Answer 30

Criminal Code

as well as certain drug control legislation and a few other areas under federal control that have been characterized as criminal matters by the courts

Question 31

Quasi-criminal matters

Answer 31

includes such areas as environmental, fishing, and employment offences, as well as offences created under provincial jurisdiction, including motor
vehicle, securities, and hunting offences.

Question 32

Who has he authority to make criminal law

Answer 32

The federal government

Question 33

Canada’s Court System

the levels of court systems

Answer 33

1) Supreme Court of Canada
2) Court of Appeal?
3) Superior courts?
4) Provincial courts?

**Go see Figure 3.1 Outline of Canada’s Court system

Question 34

Small claims courts

BC Provincial Court

Answer 34

deal with civil matters that involve relatively small amounts of money, between $10 000 and $50 000, depending on the province or territory.

Based on the lecture this court only goes up to $35,000

• Hears some family matters up to $35,000
• Hears some family law matters
• Hears some criminal matters

Question 35

Family courts

Answer 35

handle family matters, such as custody issues
that arise once the parents have separated.

Enforcement of maintenance and alimony can also be dealt with by these courts, but they have no jurisdiction to issue divorces, which must be obtained in the province’s superior trial court

Question 36

Youth Criminal Justice Act.

Answer 36

In Canada, youth offenders between 12 and 18 years of age are subject to the same Criminal Code provisions as adults, but they are subject to a different level of punishment, and so the role of youth courts is very important

Question 37

The highest trial level court, referred to generally as the ________

Answer 37

superior court

Question 38

Superior court definition

Answer 38

the highest trial court in a province or territory

has an unlimited monetary jurisdiction in civil matters and deals with serious criminal issues

bankruptcy courts operate within the superior
court system

Question 39

Surrogate (aka probate courts)

**Found in Nova Scotia

Answer 39

specialized courts dealing with wills and estates;

Question 40

Matters of fact are those regarding the details

of an event

Answer 40

For example, was Erasmus at the corner of Portage and Main in the city of Winnipeg at 7:00 a.m. on March 5, 2007?

Did a portion of the building owned by Bereznicki fall on Erasmus?

Was he paralyzed as a result of his injury?

Was Bereznicki aware of the danger? Had she taken
steps to correct it?

Question 41

Questions of law, on the other hand, concern the rules

or laws that are to be applied in the situation

Answer 41

For example, was Bereznicki obliged to keep the outside of her building in good repair?
Would this obligation be affected if Bereznicki were unaware of the danger?

Question 42

Recent Developments In the Courts System

Answer 42

• Drug treatment courts have been established in several large Canadian cities
• Domestic violence courts have been established in several provinces in Canada
• Unified family courts have jurisdiction over all legal issues related to the family (including divorce) and do not deal with any other types of cases

-Several provinces have implemented mental health
courts

• One initiative to try to remedy this situation involves the establishment of specialized courts dedicated to serving Indigenous persons.
• Sentencing circles are found in several provinces and are used primarily at the provincial court level for cases involving Indigenous offenders and victims
• The Nunavut Court of Justice, established in 1999, is Canada’s first sing-lelevel court

Question 43

Drug treatment courts

Answer 43

The emphasis in these courts is on the treatment of addicts, not on incarceration

Non-violent offenders involved in minor drug offences
agree to be bound by the terms of a structured outpatient program designed to reduce their drug dependency

They are released on bail, subject to random drug tests, and must appear regularly in court. If they
demonstrate control of their addiction, the criminal charges are stayed or the offender receives a non-custodial sentence

Question 44

Domestic violence courts

Answer 44

These courts deal with spousal, elder, and child abuse

Vary province-province but most of them offer specialized investigations by police, counselling for first-time offenders, prosecution of repeat offenders by specialized prosecutors, and support services for victims

Question 45

Unified family courts

Answer 45

Such courts have been created in several provinces

In addition, the court procedures and rules for family cases have been simplified. As is the case with all specialized courts, judges in unified
family courts develop expertise in family law.

Question 46

Mental health courts

Answer 46

These are specialized courts that focus on the treatment and rehabilitation (rather than the punishment) of those who have committed
criminal acts because of mental disorders

This gives accused persons with mental disorders the opportunity to access appropriate resources and services while ensuring public safety

Question 47

Specialized courts dedicated to serving Indigenous

persons

Answer 47

In these courts, Indigenous communities and outreach services are involved to ensure that cultural sensitivity and respect are incorporated into the criminal justice process, including the levying of sentences that emphasize a rehabilitative and reconciliatory approach

Available in Alberta, British Columbia, Ontario, and Saskatchewan

Question 48

Sentencing circles

Answer 48

meetings to suggest sentences in cases involving Aboriginal offenders and victims

Sentencing circles are NOT courts

They involve all interested persons meeting in a circle to discuss the offence, including sentencing options. The circle may suggest restorative community
sentences, including restitution to the victim and treatment or counselling for the accused

The judge is not bound to accept a circle sentence

Question 49

The Nunavut Court of Justice

Answer 49

Judges in this court are given the powers of both the superior trial courts and the territorial courts.

These judges can, therefore, hear all
of the cases that arise in the territory.

The court is a “circuit court” that travels throughout the territory hearing cases

Question 50

Provincial Courts of Appeal

Answer 50

They must hear a matter before it can go to the Supreme Court of Canada.

In most cases, this is the court of last resort

Question 51

Appeal

Answer 51

a formal process whereby a higher court will re-examine a decision made by a lower court

Question 52

When will the appeal be successful?

Answer 52

If an error in law or procedure is identified, the appeal will be successful

As a general rule, an appeal court will consider a case only when questions of law are in dispute, not questions of fact (so no introducing new evidence)

Question 53

Courts at the Federal Level

Answer 53

The Federal Court and the Federal Court of Appeal serve a function similar to that of the provincial superior courts

Question 54

Courts Administration Service Act

Answer 54

July 2, 2003

making the two divisions of the Federal Court separate courts.

Question 55

The Trial Division

Answer 55

became the Federal Court, a trial court

It hears disputes that fall within the federal sphere of power, such as those concerning copyrights and patents, federal boards and commissions, federal lands or money, and federal government contracts

Question 56

The Federal Court of Appeal

Answer 56

it is an appellate court.

Your last resort (court of last resort)

It It hears appeals from the Federal Court. Both of the federal courts can hear appeals from decisions of federal regulatory bodies and administrative tribunals appeals from the Federal Court.

Both of the federal courts can hear appeals from decisions of federal regulatory bodies and administrative tribunals

Question 57

The Tax Court of Canada

Answer 57

another specialized court that was established in 1983 to hear disputes concerning federal tax matters

hears appeals from assessment decisions made by various federal agencies enforcing taxation statutes, such as the Income Tax Act, the
Employment Insurance Act, and the Old Age Security Act

Question 58

The Supreme Court of Canada

Answer 58

the highest court in the land

It has a strictly appellate function as far as private citizens are concerned

There are nine judges appointed by the Government of Canada

There is no longer an automatic right of appeal to the Supreme Court of Canada (except in criminal cases where a judge in the appellate court dissents on
a point of law or when an appellate court sets aside an acquittal and enters a verdict of guilty)

The Supreme Court hears both criminal and civil cases

Question 59

The Process of Civil Litigation

Answer 59

LO 3.3 Outline the process of civil litigation

Question 60

Civil Litigation

Civil disputes (when you are asking for money like in a law suit)

Answer 60

the process of one party’s suing another in a private action, conducted in a trial court

Burden of proof: Balance of probabilities (much lower than criminal percentage, this is like 51% sure they are guilty)

Question 61

Process of Civil Litigation

Answer 61

See figure 3.2 titled Process of Civil Litigation

Question 62

Limitation Periods (time periods)

Only civil (not criminal)

Answer 62

The period of time within which legal action must be taken

The plaintiff must commence an action by filing the appropriate pleading (the writ of summons, the statement of claim, or the notice of civil claim) with
the appropriate court (if failed to do so, plaintiff cannot pursue the action)

Many matters must be brought up within the 2 years (but always check with a lawyer)

Question 63

What is the first step when starting a lawsuit?

Answer 63

Determine which court will

assume jurisdiction to hear the action

Question 64

How to determine which court will assume jurisdiction to hear the action?

Answer 64

The Supreme Court of Canada has provided a two-step analysis:

First, the plaintiff must prove that there is a “real and
substantial connection,” by identifying a connecting factor that links the litigation to the court

Second, if the plaintiff proves a real and substantial connection, the defendant may argue that the court should decline to exercise its jurisdiction as there is a more appropriate court to hear the matter

Question 65

In tort cases, there are four factors that entitle a

court to assume jurisdiction over the dispute:

Answer 65

1. The defendant is a resident of the province,
2. The defendant carries on business in the province,
3. The tort was committed in the province, or
4. A contract connected with the dispute was made in the province.

Question 66

Once the province has been chosen, the plaintiff must then choose the court in which to commence the litigation

Answer 66

In a civil action, this is either

the province’s small claims court or its superior court

Question 67

Pre-Trial Procedures

Answer 67

Slide moving forward

Question 68

The traditional way to commence an action in a superior court was for the
plaintiff to issue a ___________

Answer 68

writ of summons

**Note this is now abandoned

Question 69

Writ of summons

Answer 69

the written judicial order by which legal actions are commenced in some
jurisdictions

Question 70

Statement of claim (aka notice of civil claim)

Answer 70

the document setting out the nature of complaint and the facts alleged that form the basis of the action

Question 71

Statement of defense (aka reponse to civil claim)

*Filed by the defendant

Answer 71

response by the defendant to a statement of claim

Question 72

Counterclaim

Answer 72

a statement of claim by the defendant alleging that the plaintiff is responsible for the losses suffered and claiming back against the plaintiff for those losses

Basically the Uno Reverse Card

Question 73

Pleadings

Answer 73

the documents used to initiate a civil action, including the statement of claim, the statement of defence and counterclaim, and any clarification associated with them

Question 74

Applications for directions

Answer 74

interim applications and questions that are brought before a judge (before the actual trial) for a ruling

Question 75

The process of_______ has two distinct parts:

Answer 75

discovery

Question 76

Discovery

Sometimes known as disclosure

Answer 76

pre-trial disclosure of information, consisting of discovery of documents and examination for discovery

Question 77

Two distinct parts of discovery

Answer 77

1) Discovery of documents (document discovery)

2) Examination for discovery

Question 78

1) Discovery of documents

Answer 78

Each party has the right to inspect
any document in the possession of the other party that may be used as evidence in the trial. This includes email and computer files on a disk or a hard drive.

pre-trial inspection of any document that is held by the other party and may be used as evidence

Question 79

2) Examination for discovery

USA version = depositions

Answer 79

The parties (with their lawyers) meet before a court reporter and, under oath, are asked detailed questions relevant to the problem to be tried. The parties are required to answer these questions fully and truthfully

a pre-trial meeting in which lawyers from opposing sides question the plaintiff and defendant in a civil suit under oath—their responses can be entered as evidence; a method of making all relevant information known to both sides before trial

Question 80

Pre-trial conference

Answer 80

a meeting of the parties, their lawyers and a judge to attempt to settle any or all of the issues in the proceeding

It is held to determine which issues remain to be tried and whether the parties can themselves resolve the dispute. In fact, most disputes are resolved by the parties during these pre-trial processes.

Question 81

Offer to settle

Answer 81

A formal offer by either party to modify or compromise its claim to settle the matter before trial, refusal of which offer may affect costs

Question 82

Recent Initiatives

Answer 82

Provinces have implemented reforms to speed up the litigation process, especially when
smaller amounts are involved

Question 83

Alberta and British Columbia, for example,

allow for summary trials in which evidence is adduced by _______ instead of by the testimony of witnesses

Answer 83

affidavit

Question 84

Affidavit

Answer 84

a written statement made by a witness out of court but under oath

Question 85

The Trial

Answer 85

Slides beyond this

Question 86

In trial, what is presented first?

Answer 86

Because the burden of proof at trial rests with the plaintiff, the plaintiff’s case and witnesses are presented first

The plaintiff’s lawyer assists witnesses in their testimony by asking specific questions, but the types of
questions that may be asked are restricted

Question 87

Rules of evidence

Answer 87

minimum standards of procedural fairness

Question 88

Cross-examination

Answer 88

the defence has more latitude in the
types of questions asked and is permitted to ask leading questions. If something new arises from the cross-examination, the plaintiff’s lawyer may re-examine the witnesses on those matters

Question 89

Judgment

Answer 89

Slides beyond this this

Question 90

Who decides questions of law and who decides questions of fact?

Answer 90

The function of the jury

is to decide questions of fact; the judge decides questions of law

Question 91

Party and party costs

Answer 91

court costs determined by a tariff establishing what losing parties in a civil action ought to pay

are determined using a predetermined scale and normally fall short of the actual fees charged

Question 92

Solicitor and client costs

Answer 92

costs based on what a lawyer ought to actually charge his client

Question 93

Remedies

Answer 93

Slides beyond this

Question 94

Damages

Answer 94

monetary compensation to a victim

Question 95

General damages

Answer 95

compensation for future pecuniary losses and incalculable losses such as pain and suffering

Question 96

Special damages

Answer 96

monetary compensation awarded by a court to cover actual expenses and calculable pre-trial losses

Question 97

Punitive damages (aka exemplary damages)

Answer 97

damages in excess of the plaintiff’s actual losses, intended to punish the wrongdoer for outrageous or extreme behaviour

Question 98

Accounting

Answer 98

a court-ordered determination of the injuries suffered; the agent must pay over money or property collected on behalf of the principal; a court order that any profits made from wrongdoing be paid over to the victim

Question 99

Injunction

Answer 99

a court order to stop some offensive conduct or to do something to remediate wrongful conduct or to not do something in the future

Question 100

Specific performance

Answer 100

an order by a court to a breaching party that it live up to the terms of an agreement

Question 101

Declaration

Answer 101

an official statement by the court on the law applicable to a particular
case as an outcome of a trial

Question 102

Enforcement

Answer 102

Slides beyond this

Question 103

Judgment debtor

Answer 103

the person ordered by a court to pay damages or costs

Question 104

Judgment creditor

Answer 104

the person to whom a court awards damages or costs

Question 105

Examination in aid of execution

Answer 105

a court-ordered review of the judgment debtor’s finances to arrange for payment of the judgment; called an examination in aid of enforcement in
Alberta

The plaintiff can question the judgment debtor (who is under oath) about his property, income, debts, recent property transfers, and present and future means of
satisfying the judgment

Question 106

Enforcement of Judgement

Answer 106

Figure 3.3 based on the same title

Question 107

Seizure

Answer 107

when the court authorizes property of the defendant to be seized and sold to satisfy a judgment

Question 108

Secured creditor

Answer 108

a creditor who has a claim on property of the debtor, giving him priority on that property over other creditors

Question 109

Preferred creditors

Answer 109

creditors who, by legislation, must be paid before other unsecured creditors

Examples: Landlords owed unpaid rent and employees owed unpaid wages (both for a limited number of months)

Question 110

Is all property subject to seizure?

Answer 110

The “necessities of life” are exempt from seizure

Exempt assets vary from province to province, but generally include—within specified limits—food, clothing, household furnishings, tools or other personal property needed to earn income, motor vehicles,
and medical and dental aids

Question 111

Garnishment (aka Attachment of debt)

Answer 111

a court order that monies owed to the judgment debtor (defendant) by third parties be paid into court and applied toward judgment debts;

Question 112

Garnishee

Answer 112

person owing money to a judgment debtor (the person who was the plaintiff)

Question 113

Class Actions (aka class proceeding)

Class Action Lawsuit

Answer 113

A legal action undertaken by one or more plaintiffs on behalf of themselves and all other person have an identical interest in the alleged wrong

when a plaintiff launches a legal action on behalf of him/herself and others with the same interest

when different persons combine their
lawsuits into one opposed to a common defendant, because the facts are sufficiently similar.

Benefits:
-Not everyone needs the funds to pay for their lawyer, they can pool their sources and have a great firm back them
-

Question 114

The Nature and Function of Regulatory Bodies

Answer 114

LO 3.4 Explain the nature and function of regulatory bodies

Question 115

Regulators

Answer 115

government agencies including ministries, departments, boards, commissions, agencies, tribunals, and individual bureaucrats at the federal, provincial, and municipal levels

May or act like courts but they are not!

Question 116

Government can be divided into three functions:

Answer 116

1) legislative,
2) judicial,
3) executive

Question 117

1) legislative,

Answer 117

in Canada consists of the federal Parliament and its provincial counterparts

Question 118

2) judicial,

Answer 118

consists of the courts at both the federal and provincial levels

Question 119

3) executive (aka the Crown)

Answer 119

includes the prime minister, the premiers of the provinces, the cabinet ministers, and all of the civil servants in the various government departments

Question 120

Civil servants or the bureaucracy of the executive branch at both the federal and provincial levels

Answer 120

Assist people in their dealings with government. They provide service functions such as security, education, health and welfare; they administer departments such as customs and revenue; and they manage government affairs generally

Question 121

Administrative tribunals

Regulatory bodies
Regulatory body

Answer 121

specialized dispute adjudication forums created by statute, that have been given quasi-judicial powers to resolve disputes and enforce legislation

Examples: labour relations boards, human rights commissions, and workers’ compensation boards to implement and enforce their policies

Question 122

Advantages to administrative tribunals

Answer 122

Government employees who make up these
decision-making panels usually have specific expertise in the matter being decided, and the tribunals generally have more discretion than a judge.

This flexibility creates a more efficient, quicker, and less costly
process.

Question 123

To determine our rights before administrative tribunals, there are three questions that must be addressed:

Answer 123

1. From where did the tribunal derive its authority?
2. Was the decision-making process fair?
3. What recourse is there if there has been a failure in jurisdiction or procedure?

Question 124

1. The Authority of the Decision

Maker

Answer 124

Authority is granted by statute or by a regulation created pursuant to that statute

Question 125

Interpretation statute

Answer 125

A statute that directs the court to interpret legislation in a specific way

Question 126

2. The Fairness of the Process

Answer 126

What constitutes fair treatment will vary with the circumstances, but the minimum standards of procedural fairness, otherwise known as the rules of natural justice , set a basic standard

Requirement 1 = fair hearing
Requirement 2 = the decision be made by the persons hearing the evidence
Requirement 3 = Decision maker must be impartial

Question 127

Rules of natural justice

Answer 127

minimum standards of procedural fairness

Question 128

Fair hearing

Answer 128

a hearing conducted in accordance with the rules of procedural fairness; the person affected negatively by a decision has the right to receive

Question 129

Requirement 2 Example: the decision be

made by the persons hearing the evidence

Answer 129

If, for example, a panel of five is hearing a case and one member has to leave because of illness, that
person cannot be replaced by another partway through the proceedings because the replacement would not have heard all of the evidence

Question 130

Bias

Answer 130

Prejudice against or partiality toward one party, for example, based on a decision maker’s personal interest in the decision

Question 131

Principles of fundamental justice

Answer 131

principles set by tradition and convention that protect the right to a fair hearing by an impartial decision maker acting in good faith to implement a valid law

Question 132

3. Reviewing a Decision

Answer 132

The rights
under any such appeal process must be exhausted before the courts are
asked to exercise their right to review the decision

Question 133

Judicial review

Answer 133

power held by the courts to review decisions made by administrative decision makers

Question 134

For the courts to exercise their right of judicial review, one of the following must be present:

Answer 134

1) When the validity of the statute or regulation (or provision under it) relied on by the decision maker is in question
2) When the decision maker has acted outside his authority under the statute or regulation.
3) When an error of law on the record has been made
4) When the decision-making process itself has failed to follow the requirement of procedural fairness (the rules of natural justice)

5) When there has been an abuse of power (including
discretionary power) by the decision maker

Question 135

Error of law

Answer 135

when a decision maker incorrectly states the legal interpretation or effect of the statute or common law

Question 136

Abuse of power

Answer 136

an action by a tribunal beyond the jurisdiction set out in the legislation governing it, or in making an unreasonable decision

Question 137

Methods of Judicial Review

Answer 137

Slides moving forward

Question 138

Prerogative writ

Answer 138

one of the remedies the court may apply if it finds that an administrator has acted beyond his jurisdiction, made an unreasonable decision, or not followed the rules of natural justice

Question 139

The three main writs are the writs of

Answer 139

1) Certiorari
2) Prohibition
3) Mandamus

Question 140

1) Certiorari

Answer 140

an order that quashes and sets aside a tribunal’s decision as void and of no effect

a court order overturning a decision and making it null and void

Question 141

2) Prohibition

Answer 141

an order that prohibits a tribunal
from proceeding

an order not to proceed with a hearing or other administrative process

Question 142

3) Mandamus

Answer 142

an order compelling a government
to perform its duties

a court order directing that a specific act be performed

Question 143

Declaratory judgment

Answer 143

a declaration by the court as to what the law is in any matter brought before it

Question 144

Privative clause

Answer 144

terms in a statute that attempt to restrict the right of judicial review

Question 145

Can you have both a criminal case and a civil case?

There may be a civil and criminal proceeding over the same hearing

Answer 145

Yes, if someone was to punch you in the face and break your nose that would be in criminal court as assault, but say you needed to miss work as you were in the hospital, you can also take them to civil court for the missing of work

Therefore this would have two burdens

Question 146

Civil resolution Tribunal

Trial by app, as it is mostly online

Answer 146

ONLY hears civil matters up to $5000

*NO Criminal matter

• Low cost way to access justice for small claims
• New in the last 2ish years

Question 147

BC Supreme Court - as per lecture part 1

Answer 147

• Hears civil matter over $35,000
• Hears some family law matters
• Hears some criminal matters (mainly indictable offence or more serious)

Question 148

Federal Courts - as per lecture part 1

Answer 148

Plays a similar role to provincial Superior Courts but hears disputes that fall within the federal powers (i.e. copyrights, patents, federal lands or money, federal government contract, etc.)

Has both a trial and appellate division

Question 149

The Process of Litigation - as per lecture part 2

Answer 149

1) Determine jurisdiction
2) Plaintiff files Notice of Claim (aka Statement of Claim)
3) Defendant files a Reply (Statement of Defense) and perhaps a counterclaim
4) Perhaps there is an application for directions or other interim applications
5) Process of discovery / disclosure:
a) Document discovery
b) Examination for discovery
6) Perhaps there is an offer to settle
7) Pre-trial conference
8) Perhaps there is mediation
9) Trial (plaintiff’s case, defendant’s case, rules of evidence)
10) Judgement (decisions, reasons, remedies, and costs
11) Enforcement of judgment

Question 150

Summary conviction and indictable offences

American law translation

Answer 150

Felonies = indictable offence

Summary conviction in Canada = Misdemeanor in USA

Question 151

Court of Appeal (as per lecture)

Answer 151

• In most cases the court of last resort
• If an error in law or procedure is established an appeal will be successful
• Generally will only consider questions of law and not questions of fact
• An appeal is not a new trial