Chapter Three-Resolution Of Disputes Flashcards
ADR
Alternative dispute resolution, is any solution that substitutes for court action
Three main approaches to ADR
Negotiation, Mediation, Arbitration
Negotiation
When the disputing parties work out their problem themselves
- can often improve relationships
- can be simple like a phone call
Mediation
When a neutral third party assists the parties in coming to an agreement on their own
- used in labour relations
- facilitates the discussion
- can be informal or very structured
Arbitration
When a third party makes a binding decision in the matter of the dispute
- commonly used in international relations
- parties ca choose to have provincial arbitration legislation apply to process
Advantages to ADR
- control
- no delays
- privacy
- saves relationships
- act internationally
Disadvantage
- not necessarily just
- cannot extract info per say
- imbalance
- no precedent
- no court of appeal
Criminal law decision maker
Beyond a reasonable doubt-judge must be convinced beyond a reasonable doubt of the guilt of the accused
Civil law decision factor
Balance of probabilities: requires the person making the claim to show the court there is more than a 50% likelihood the events took place
Criminal law is made by what type of government?
Federal
Judges in the provincial court are paid and appointed by?
Relevant provincial government
Provincial courts of appeal
Hears appeals from lower courts, appeal courts will only consider cases that question facts of law not matter of facts although they are usually a mix of both
How are judges of appeal appointed?
Federally
What does the federal court of appeal do?
Hears appeals from the federal court
Supreme court of Canada about
Nine judges, strictly for appellate function as far as private citizens are concerned. No automatic right to get to court. Hears both criminal and civil.
Limitations of tort action
Must be commenced within 2 years of tort-many exceptions
Civil litigation process order
Pleadings written Cause of action Determine jurisdiction File and serve statement of claim File and serve statement of defence Pleadings close Discovery Questioning Settlement before trial
Examination for discovery
Parties will meet before a court reporter and under oath are asked detailed questions relevant to the problem to be tried
Pre-trial conference
Usually scheduled to make offer to settle.
When can you ask leading questions
In cross examination
Costs
Winning party might be awarded costs as part of judgement
Party and party costs are usually…
Awarded to victorious party and are determined using a predetermined scale
Damages
Involves payment of money
General damages
Based on estimates
Special damages
Calculated to reimburse the litigant
Punitive damages or exemplary
Do not compensate victim but punish wrongdoer
Accounting
Any profits derived from defendants wrongdoing awarded to victim
Injunction
Order to stop wrongful conduct or correct a continuing wrong
Declaration
The courts to simply make a declaration as to law and legal rights of parties
If judgement debtor refuses to pay…
Judgement creditor must enforce it
Dry judgement
A judgement that was unwise to have pursued in first place (debtor has no assets)
Once a judgement has been made many provinces offer…
A further hearing called an examination in aid of execution to determine assets that can be seized
Pro rata
Proportional
Is all property considered subject to seizure?
No, food, clothing, and household are exempt
Garnishment
Interception of funds owed to the judgement debtor
What can be used if there is a risk the judgement debtor’s property will be removed from jurisdiction
Judicial remedies although some provinces forbid them
What do regulatory bodies do?
They implement and enforce policies
Do courts have jurisdiction to supervise regulatory bodies?
Yes
How must regulatory bodies make decisions? By what concept?
Rules or natural justice meaning it must be a fair hearing, decision makers must be impartial
