Chapter 6

Question 1

3 Phases/Stages of the dispute process

Answer 1

1. Grievance or pre-conflict stage
   - Refers to situations that an individual or group perceives to be unjust and considers grounds for resentment or complaint.
   - if unresolved it moves to conflict
2. Conflict stage
   - the aggrieved party confronts the offending party and communicates resentment or feelings of injustice to the person or group.
   - dyadic (two parties)
   - if unresolved moves to dispute
3. Dispute stage
   - the involvement of a third party in the disagreement.
   - egal approach to dispute resolution involves the transition from a dyad of the conflicting parties to a triad where an intermediary outside the conflict has been added.

Question 2

Difference Between a Grievance, Conflict, and Dispute

Answer 2

A grievance is monadic, involving one person or a group;

A conflict is dyadic, involving 2 parties

A dispute is triadic, since it involves two parties and the participation of a third party who is called upon as an agent of settlement.

Question 3

2 Basic Methods of Dispute Resolution

Answer 3

• the parties to a conflict resolves it themselves through mediation, or
• the conflict is adjudicated by a third, impartial party who decides the outcome.

Question 4

Methods of Dispute Resolution (6)

Answer 4

1. Direct Personal Violence (duel, feud; revenge)
2. Rituals (cultural)
3. Shaming (public reprimand)
   - reintegrative shaming: Brief and controlled disapproval is expressed toward the rule-violating act, not the person.
   - essential value of the offender as a person is reaffirmed, and they are able to be re-accepted.
4. Supernatural Agencies (cause the harm and are the only way to fix the harm)
5. Lumping it (weigh worth/ability to make complaint)
   - The issue or problem that gave rise to the dispute is simply ignored and the relationship with the offending party continues.
6. Avoidance (limited relationship/ one party leaves, therefore irrelevant)

Question 5

4 Primary Resolution Processes

Answer 5

1. Negotiation: is voluntary and arranged by the disputants themselves.
   - both must be committed to not using a third party
   - does not set precedent
2. Mediation: in which a third party facilitates a resolution by assisting parties to reach a resolution.
   - do not decide the resolution only facilitate discussion
   - cooperation and open communication
3. Adjudication (both administrative and judicial) at the other end of the continuum. Parties are compelled to participate
   - The case is decided by a judge or hearing officer, - Parties are represented by counsel
   - Procedures are formal and outcomes enforceable by law.
   - narrow definitions of issues in problems: with legal issues and facts. (must be legal issues)
   - one party faces a total loss (win-lose)

4.Arbitration is close to adjudication.
It is more informal but results in a binding decision.
- There is often a clause in business contracts stipulating arbitration as the only means of dispute resolution in the event of a breach of the contract.
- The parties themselves choose the arbitrator.
- They present their case, much like in a hearing, but the setting is not as formal as in a trial.
-proceeding can remain private

Question 6

2 types of mediation

Answer 6

1. Facilitative or “Interest-based” Mediation
   - process-oriented, client centered, and communication focused
   - does not direct parties to a particular settlement
   - encourages parties to identify needs and expectations and arrive at a win win solution
2. Rights-based Mediation
   - mediator’s evaluation of the case in the context of formal rules to ensure the agreement mediated reflects both statutory rights and legal entitlements, such as accounting rules or legal principles
   - Labour mediation

Question 7

Advantages of Mediation

Answer 7

• less time consuming, complicated, and expensive than litigation or arbitration
• costs typically shared
• may look beyond legal issues to the root cause of the conflict
• parties have greater autonomy and control the process

Question 8

Obudsperson Process

Answer 8

• Combines mediatory and investigatory functions in dispute resolution.
• independent agents of the legislature and can criticize, publicize, and make recommendations, but they cannot reverse administrative actions
• can be reviewed by a judge in rare exceptions of alleged arbitrator misconduct

Question 9

3 types of mandates under which Canadian Ombudspersons operate

Answer 9

1. Ombudsman/person established by provincial, territorial or federal legislation with strong powers of investigation and structural independence.
   - E.g. provincial and territorial ombudsman/person, some federal ombudsman/person offices.
2. Ombudsman/person established by policy or terms of reference by both private and public sector organizations.

• They primarily use various forms of early resolution methods but may also have the power to investigate and the authority to publish annual and special reports.
  E.g.: ombudsman/ombudspersons in universities and colleges, banks, utilities.

3.Ombudsman/person established by corporate or organizational policy or terms of reference, which generally use only facilitative methods for assisting with the resolution of complaints.
E.g. Employee ombudsman for banks and some federal agencies.

Question 10

Hybrid Resolution Processes (3)

Answer 10

• These processes incorporate features of the primary processes
  1. Rent-a-judge Process
• Basically a form of arbitration.
• The disputants, in an attempt to avoid the use of a regular court, select a retired judge to hear and decide a pending case as an arbitrator would.
• Decision is legally binding
• Unlike in arbitration, the “referee’s” decision can be appealed for errors of law or on the ground that the judgment was against evidence, though such appeals are rare.

2. Med-arb Process
   - The issues not solved by mediation are submitted to arbitration.
   - Sometimes, the same person serves first as mediator, then as arbitrator.
   - Med-arb has been used often in contract negotiation disputes between public employers and their unionized employees.
3. Mini Trial
   - Lawyers for each disputant are given a short time (not more than a day) to present the basic elements of the case to senior executives of both parties.
   - after the presentation, senior executives try to negotiate a settlement of the case, usually with the aid of a neutral adviser
   - If no settlement, the adviser gives the parties an opinion of the likely outcome if the dispute were litigated. At times, this dose of reality helps to break the deadlock.

Question 11

3 Generic Factors of Increased Litigation

Answer 11

1. social development
   - Variation in the frequency of litigation is a function of changes in the level of complexity, differentiation, and skill of the society in which courts operate.
   - social development changes the structure of society and increases reliance on courts

2.subjective cost–benefit calculations on the part of disputants
- objective, well thought out decision calculating a risk factor and weighing losses against benefits
(monetary, revenge, etc)

3. creation of more legally actionable rights and remedies by legislatures and courts.
   - The growing scope of law increases litigation implicitly or explicitly by expanding the jurisdiction of the courts.
   - Rights, protections, and entitlements for whole groups of people can generate potentially conflict-laden situations conducive to further litigation.
   - class action lawsuits (Residential Schools)

Question 12

Justifiability

Answer 12

• the conflict must be valid in court
• the court must be able to provide remedy
• the potential litigant must turn the grievance into a legal dispute and demonstrate whether the complaint is justified
• must be a real and substantial legal controversy that is appropriate for judicial determination.

Question 13

Standing

Answer 13

• Traditional: only the person whose legal rights have been infringed can bring an action
• through legislation rules for standing can be expanded to plaintiffs that must show a ‘genuine interest’ in issue and outcome (SCC precedent)

Question 14

Limits on the Use of Courts (6)

Answer 14

1. must be Justifiability
2. must have Standing
3. Trivial Matters will not be Litigated
4. Must fall within the Limitation Periods
   - failure results in being statute barred and unable to proceed without special court order
5. Economic Resources
   - must be able to afford the costs of litigation and delay when disputes are submitted to courts
   - deters many people
6. Must recognize the relevance of court services to their problem
   - those with greater levels of education may have greater knowledge of the law and/or more skill in obtaining legal assistance.

Question 15

Disputes Between Individuals

Answer 15

Economic disputes: include claims associated with contests over wills, trusts and estates, landlord–tenant controversies, and disputes over property, titles, and sales.

Non-economic disputes: include allegations of slander and libel, custody cases, divorce proceedings, involuntary commitments, and malpractice suits

• encouraged to make settlements outside of court, even after the pretrial hearing with the judge

Question 16

Disputes between Individuals and Organizations (4)

Answer 16

(1) disputes over property and money (economic disputes);
(2) claims for damages and restitution;
(3) issues of civil rights; and
(4) disputes concerning organizational actions, procedures, and policy.

NOT MUTUALLY EXCLUSIVE

Question 17

Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. (2013)

Answer 17

• The SCC ruled that an employer’s implementation of random drug and alcohol testing is not automatically justified even in inherently dangerous work environments.
• The employer had exceeded the scope of its rights by unilaterally imposing random testing without evidence that alcohol or drug use was a problem in the workplace.
• The Court ruled that “even in a non-unionized workplace, an employer must justify the intrusion on privacy resulting from random testing by reference to the particular risks in a particular workplace” (at 20). The Court also provided guidance on the standard that employers must meet in order to subject their employees to these types of tests.

Question 18

Law as a Method of Dispute Resolution in Academe (3)

Answer 18

1. Faculty–administration
   - arises by faculty members to redress their grievances against university administrations
   - often over meaning and interpretation of contracts
   - In the context of contract interpretation, legal disputes arise most often in the context of contract termination and due notice for such termination.
   - procedural matters
   - discrimination
2. Student–faculty
   - The SCC recognized the relationship between a student and a university does have “a contractual foundation that gives rise to duties that sound in both contract and tort”.
   - contract established through university calendars, internal admission, withdraw and appeal procedures, and academic policies
   - An institution failing to meet its expressed or implied obligations may be liable to a student for either breach of contract or the tort of negligence
   - Pleadings must provide necessary information to demonstrate that the university or its employees have surpassed their broad discretion or the court may strike out the cause of action

3.Student–administration Relations
- Unis have the right to dismiss, suspend, and sanction students for misconduct or academic deficiency
- Under the due process clause students are entitled to a hearing and notice before disciplinary action is taken
-

Question 19

Pridgen v. University of Calgary (2012)

Answer 19

• created and posted in a facebook page that highly criticized a professor
• instructor complained to the university’s administration about these public accusations of incompetence
• 10 students on the Facebook page (including those who had not posted any comments) were sanctioned.
  
  • found it constituted “non-academic misconduct.”
• Some of the students appealed to the university’s General Faculties Council Review Committee; they were unsuccessful. The Pridgens (2 brothers) also appealed to the University’s Board of Governors, arguing, in part, that the university’s decision violated Section 2(b) of the Charter of Rights and Freedoms.
• They were unsuccessful at this level.
• The court ruled that the students’ freedom of speech was protected under section 2(b) of Charter and that universities are not “Charter-free zones.”
• This decision was later upheld by the Alberta Court of Appeal.
• The court rejected the university’s argument that the application of the Charter in these circumstances would undermine or threaten the University’s “academic freedom or institutional autonomy”.

Question 20

B.C. Civil Liberties Association and Cam Côté v. University of Victoria (2016)

Answer 20

• Pro life group stripped of privileges on campus and threatened with sanctions
• hey argued that a university is “not a purely private entity” but a “complex corporate body that can be subject to the Charter for some purposes.”
• sought a declaration that the university’s decision in relation to YPY had failed to appropriately weigh the infringement of section 2(b), (c), and (d) of the Charter against the justifications for such infringement and was therefore unreasonable and should be quashed.
• The judge ruled that the Canadian Charter of Rights and Freedoms does not apply to public universities, and that the University’s impugned decision fell within its “autonomous operational decision-making.”

-In 2016, the BC Court of Appeal dismissed an appeal of this decision and found ”no basis upon which it can be said on the evidence that when (UVic) regulated the use of space on the campus it was implementing a government policy or program (that would be subject to the Charter)” (at 33).

Question 21

Disputed Between Organizations (2)

Answer 21

1. Social Policy
   - when the government pursues broad national objectives that may involve or impinge upon many interests and groups, such as equality and economic opportunity, environmental protection, income security, and public health and safety.
   - Social-policy disputes raise difficult political and value questions.
   ex. Large-scale social welfare programs have often generated complex public-policy disputes.
2. Regulatory
   - frequently involve difficult technical questions (such as environmental matters)

• In both types of dispute, information about important variables is often incomplete or inaccurate, effects of alternative choices are hard to ascertain, and often there are no easy answers to cost–benefit questions or to questions of trade-offs among various interests.

-

Question 22

SLAPPs

Answer 22

• Strategic Lawsuits Against Public Participation
• large companies use multi-million dollar lawsuits to suppress protests, NGOs, etc that oppose them
• legal fees cripple the agencies
• Dashawa v. Friends of the Lubicon
  
  • paper company sued for defamation and interference in business after they started a consumer boycott on their paper products
  • “The plaintiff did establish a prima facie case that attributions of genocide on the activities of the logging company were misleading and constituted misrepresentation. With regard to the issue of irreparable harm, the plaintiff succeeded in showing that even if it recovered damages at the trial, the defendants would not be able to pay any large award. The loss to the plaintiff’s reputation and business might not be permanent, given the indication by some customers of their intention to go back to using the plaintiffs products after the dispute had ended. The balance of convenience favoured the defendants as the Charter rights of the defendants were to be favoured over the economic rights of the plaintiff.”