Chapter 3: The Resolution of Disputes: The Courts and Alternatives to Litigation Flashcards
Administrative Law
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
Alternatives to Court Action
LO 3.1 Examine the alternative dispute resolution (ADR)
methods: negotiation, mediation, and arbitration
Alternative dispute resolution (ADR)
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
What qualifies as a method of ADR?
Any strategy that is used as a substitute for court action
3 main types of ADR
1) Negotiation
2) Mediation
3) Arbitration
1) Negotiation
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
2) Mediation
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
3) Arbitration
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 ($$$)
Summary and Comparison of Litigation and ADR Methods
See Table 3.1
Advantages of ADR Versus Litigation
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
Disadvantages of ADR Versus Litigation
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
_________ should be the first recourse for people who find themselves in a disagreement—too often, it is the last
Negotiation
Without prejudice
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
Mediator (aka conciliator)
a neutral third party who facilitates discussion between parties to a dispute to encourage and assist their coming to an agreement
Successful Mediator
Require considerable specialized training
There are organizations that provide membership and certification and set recognized professional standards
Disadvantages of Mediation
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
Arbitrator
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
Disadvantages of arbitration
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.
Finally, _______ and ________ are becoming more common in resolving online disputes
mediation and arbitration
Using ADR for online disputes overcomes geographical issues, reduces costs, and enables a quick resolution of disputes
Online dispute resolution (ODR)
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
The Courts
LO 3.2 Describe the court system in Canada
Jurisdiction definition
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?
As a general rule, Canadian courts are open to the public
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
In-camera hearings
part of a trial proceeding that is closed to the public
When are names not disclosed in court?
When children are involved
Or in cases involving sexual assaults
Balance of probabilities
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
Criminal prosecutions
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)
“R. v. Jones”
(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
Beyond reasonable doubt
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
Criminal law is restricted to the matters found in the _________,
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
Quasi-criminal matters
includes such areas as environmental, fishing, and employment offences, as well as offences created under provincial jurisdiction, including motor
vehicle, securities, and hunting offences.
Who has he authority to make criminal law
The federal government
Canada’s Court System
the levels of court systems
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
Small claims courts
BC Provincial Court
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
Family courts
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
Youth Criminal Justice Act.
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
The highest trial level court, referred to generally as the ________
superior court
Superior court definition
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
Surrogate (aka probate courts)
**Found in Nova Scotia
specialized courts dealing with wills and estates;
Matters of fact are those regarding the details
of an event
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?
Questions of law, on the other hand, concern the rules
or laws that are to be applied in the situation
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?
Recent Developments In the Courts System
- 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
Drug treatment courts
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
Domestic violence courts
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
Unified family courts
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.
Mental health courts
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
Specialized courts dedicated to serving Indigenous
persons
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
Sentencing circles
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
The Nunavut Court of Justice
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
Provincial Courts of Appeal
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
Appeal
a formal process whereby a higher court will re-examine a decision made by a lower court
When will the appeal be successful?
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)
Courts at the Federal Level
The Federal Court and the Federal Court of Appeal serve a function similar to that of the provincial superior courts
Courts Administration Service Act
July 2, 2003
making the two divisions of the Federal Court separate courts.
The Trial Division
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
The Federal Court of Appeal
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
The Tax Court of Canada
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
The Supreme Court of Canada
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
The Process of Civil Litigation
LO 3.3 Outline the process of civil litigation
Civil Litigation
Civil disputes (when you are asking for money like in a law suit)
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)
Process of Civil Litigation
See figure 3.2 titled Process of Civil Litigation
Limitation Periods (time periods)
Only civil (not criminal)
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)
What is the first step when starting a lawsuit?
Determine which court will
assume jurisdiction to hear the action
How to determine which court will assume jurisdiction to hear the action?
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
In tort cases, there are four factors that entitle a
court to assume jurisdiction over the dispute:
- The defendant is a resident of the province,
- The defendant carries on business in the province,
- The tort was committed in the province, or
- A contract connected with the dispute was made in the province.
Once the province has been chosen, the plaintiff must then choose the court in which to commence the litigation
In a civil action, this is either
the province’s small claims court or its superior court
Pre-Trial Procedures
Slide moving forward
The traditional way to commence an action in a superior court was for the
plaintiff to issue a ___________
writ of summons
**Note this is now abandoned
Writ of summons
the written judicial order by which legal actions are commenced in some
jurisdictions
Statement of claim (aka notice of civil claim)
the document setting out the nature of complaint and the facts alleged that form the basis of the action
Statement of defense (aka reponse to civil claim)
*Filed by the defendant
response by the defendant to a statement of claim
Counterclaim
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
Pleadings
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
Applications for directions
interim applications and questions that are brought before a judge (before the actual trial) for a ruling
The process of_______ has two distinct parts:
discovery
Discovery
Sometimes known as disclosure
pre-trial disclosure of information, consisting of discovery of documents and examination for discovery
Two distinct parts of discovery
1) Discovery of documents (document discovery)
2) Examination for discovery
1) Discovery of documents
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
2) Examination for discovery
USA version = depositions
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
Pre-trial conference
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.
Offer to settle
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
Recent Initiatives
Provinces have implemented reforms to speed up the litigation process, especially when
smaller amounts are involved
Alberta and British Columbia, for example,
allow for summary trials in which evidence is adduced by _______ instead of by the testimony of witnesses
affidavit
Affidavit
a written statement made by a witness out of court but under oath
The Trial
Slides beyond this
In trial, what is presented first?
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
Rules of evidence
minimum standards of procedural fairness
Cross-examination
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
Judgment
Slides beyond this this
Who decides questions of law and who decides questions of fact?
The function of the jury
is to decide questions of fact; the judge decides questions of law
Party and party costs
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
Solicitor and client costs
costs based on what a lawyer ought to actually charge his client
Remedies
Slides beyond this
Damages
monetary compensation to a victim
General damages
compensation for future pecuniary losses and incalculable losses such as pain and suffering
Special damages
monetary compensation awarded by a court to cover actual expenses and calculable pre-trial losses
Punitive damages (aka exemplary damages)
damages in excess of the plaintiff’s actual losses, intended to punish the wrongdoer for outrageous or extreme behaviour
Accounting
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
Injunction
a court order to stop some offensive conduct or to do something to remediate wrongful conduct or to not do something in the future
Specific performance
an order by a court to a breaching party that it live up to the terms of an agreement
Declaration
an official statement by the court on the law applicable to a particular
case as an outcome of a trial
Enforcement
Slides beyond this
Judgment debtor
the person ordered by a court to pay damages or costs
Judgment creditor
the person to whom a court awards damages or costs
Examination in aid of execution
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
Enforcement of Judgement
Figure 3.3 based on the same title
Seizure
when the court authorizes property of the defendant to be seized and sold to satisfy a judgment
Secured creditor
a creditor who has a claim on property of the debtor, giving him priority on that property over other creditors
Preferred creditors
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)
Is all property subject to seizure?
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
Garnishment (aka Attachment of debt)
a court order that monies owed to the judgment debtor (defendant) by third parties be paid into court and applied toward judgment debts;
Garnishee
person owing money to a judgment debtor (the person who was the plaintiff)
Class Actions (aka class proceeding)
Class Action Lawsuit
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
-
The Nature and Function of Regulatory Bodies
LO 3.4 Explain the nature and function of regulatory bodies
Regulators
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!
Government can be divided into three functions:
1) legislative,
2) judicial,
3) executive
1) legislative,
in Canada consists of the federal Parliament and its provincial counterparts
2) judicial,
consists of the courts at both the federal and provincial levels
3) executive (aka the Crown)
includes the prime minister, the premiers of the provinces, the cabinet ministers, and all of the civil servants in the various government departments
Civil servants or the bureaucracy of the executive branch at both the federal and provincial levels
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
Administrative tribunals
Regulatory bodies
Regulatory body
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
Advantages to administrative tribunals
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.
To determine our rights before administrative tribunals, there are three questions that must be addressed:
- From where did the tribunal derive its authority?
- Was the decision-making process fair?
- What recourse is there if there has been a failure in jurisdiction or procedure?
- The Authority of the Decision
Maker
Authority is granted by statute or by a regulation created pursuant to that statute
Interpretation statute
A statute that directs the court to interpret legislation in a specific way
- The Fairness of the Process
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
Rules of natural justice
minimum standards of procedural fairness
Fair hearing
a hearing conducted in accordance with the rules of procedural fairness; the person affected negatively by a decision has the right to receive
Requirement 2 Example: the decision be
made by the persons hearing the evidence
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
Bias
Prejudice against or partiality toward one party, for example, based on a decision maker’s personal interest in the decision
Principles of fundamental justice
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
- Reviewing a Decision
The rights
under any such appeal process must be exhausted before the courts are
asked to exercise their right to review the decision
Judicial review
power held by the courts to review decisions made by administrative decision makers
For the courts to exercise their right of judicial review, one of the following must be present:
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
Error of law
when a decision maker incorrectly states the legal interpretation or effect of the statute or common law
Abuse of power
an action by a tribunal beyond the jurisdiction set out in the legislation governing it, or in making an unreasonable decision
Methods of Judicial Review
Slides moving forward
Prerogative writ
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
The three main writs are the writs of
1) Certiorari
2) Prohibition
3) Mandamus
1) Certiorari
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
2) Prohibition
an order that prohibits a tribunal
from proceeding
an order not to proceed with a hearing or other administrative process
3) Mandamus
an order compelling a government
to perform its duties
a court order directing that a specific act be performed
Declaratory judgment
a declaration by the court as to what the law is in any matter brought before it
Privative clause
terms in a statute that attempt to restrict the right of judicial review
Can you have both a criminal case and a civil case?
There may be a civil and criminal proceeding over the same hearing
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
Civil resolution Tribunal
Trial by app, as it is mostly online
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
BC Supreme Court - as per lecture part 1
- Hears civil matter over $35,000
- Hears some family law matters
- Hears some criminal matters (mainly indictable offence or more serious)
Federal Courts - as per lecture part 1
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
The Process of Litigation - as per lecture part 2
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
Summary conviction and indictable offences
American law translation
Felonies = indictable offence
Summary conviction in Canada = Misdemeanor in USA
Court of Appeal (as per lecture)
- 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
