Midterm (Post Quiz 1) Flashcards
What is litigation?
Legal matter which has the potential to go to court.
What are the two differing types of courts?
Trial courts and appeal courts.
Whom does the burden of proof fall upon in a criminal case?
The crown (prosecution) to prove guilt.
Whom does the burden of proof fall upon in a civil case?
The plaintiff to prove liability.
In which trial courts of the Canadian hierarchy may juries be present?
In the Alberta Court of Queen’s Bench and above (SCC).
What are some main differences of appeal courts when compared to trial courts?
- No trial
- No witnesses or exhibits of evidence
- Only review past court decisions
How many judges partake in trial courts vs. appeal courts?
Trial Court: 1 judge
Appeal Court: Panel of judges
To what extent must evidence be proved in a criminal trial?
Beyond a reasonable doubt.
To what extent must evidence be proved in a civil trial?
On a balance of probabilities.
How is provincial court’s jurisdiction limited?
There is a $50,000 claim limit for civil cases.
What are the 5 divisions of Provincial Court?
- Criminal
- Traffic
- Youth
- Family
- Civil
Even though a lower provincial court cannot grant divorce, what can they do involving family matters?
Can deal with custody child/spousal support cases.
What are the courts established by the federal government, in order of hierarchy?
- SCC
- Federal Court of Appeal
- Federal Court
- Tax Court of Canada
What do federal courts deal with?
Intellectual property, immigration, tax, or any other federal government department.
Who appoints justices from the provincial superior and lower courts?
Federal government appoints provincial superior court justices.
Provincial government appoints provincial lower court justices.
When would a civil trial go to small claims court?
When the claim is less than $50,000
What is the general rule of the limitation act?
Most lawsuits must be within 2 years of discovering the claim and 10 years from when the claim arose (or when the accident happened). Whichever period expires first holds precedence.
What are some exceptions of the general rule of the limitation act?
- Agreement of both parties to extend
- Part payment of debt or acknowledgement of debt
- Fraudulent concealment
- Disability
How does one commence and litigate a suit in the provincial court, civil (small claims court)?
Fill out page 1 of provincial court of Alberta claims sheet.
What is the fee for making a claim in small claims court?
$100 for claims $7500
What must a claim include?
Proper names of both parties, amount of claim, what you’re claiming the money for. Satisfy five Ws
What are some methods of serving a defendant?
- Personal service (default)
- Substitutional service
- Service by registered mail
What are the defendants 4 choices in defending an action upon getting served?
- Do nothing
- Negotiate a settlement
- Pay the claim
- Defend the action, deliver dispute note
What happens if a defendant does nothing upon getting served.
He/she loses the lawsuit if the claim is ignored for 20 days (or 30 outside AB)
What are three matters of procedure that may occur after a dispute note is filed by a defendant?
- Proceed to mediation
- Proceed to pre-trial conference
- Proceed directly to trial
Who goes first in a small claims trial and why?
Plaintiff, he/she has burden of proof.
What are the three witness procedures?
- Direct examination (asking one’s own witnesses)
- Cross examination (asking opposite party’s witnesses)
- Re-examination (when first party allowed to re-direct questions to witness, but ONLY with regard to matters raised during cross examination)
What is a leading question and when can it be asked to a witness?
A harsher type of question, challenges witness’s recall of the fact, not very open. Can only be used in cross examination and not in direct examination.
What happens at the end of a small claims trial? What happens if the plaintiff is successful?
Judge renders a decision. If plaintiff is successful a writ of enforcement is obtained.
Where is a small claims court decision appealed? When must it be appealed by?
The ACQB.
Within 30 days, must prepare and file notice of appeal and ORDER a transcript of the evidence.
When must the transcript of evidence be filed after filing a notice of appeal to the ACQB?
Within 3 months.
What are the 5 steps of litigation in the court of queen’s bench?
- Exchange of Pleadings
- Discovery Process
- Settlement Attempts
- The trial
- Collection/enforcement of the judgment
What are the two sub-steps of the discovery process? (ACQB)
a. Discovery of records
b. Examinations for discovery
What is the discovery of records? (ACQB)
One party sends a notice to produce records to the other. Requires that the party disclose in an affidavit of records all papers/docs that may be relevant
What is the examinations for discovery? (ACQB)
Both parties, their lawyers, and a court reported attend to give lawyers the opportunity to cross-examine the opposite party under oath.
What are some benefits of settling out of court?
- Gives certainty of result
- Saves cost
- Saves time
- Saves stress
- Avoids possible embarrassment
When may a settlement be attempted?
Any time prior to trial.
Who goes first in a ACQB civil trial and why?
Plaintiff, he/she has burden of proof.
What are the two types of costs awarded to the successful party at the end of a trial? Explain each. Which is more common?
- Party/party costs: Each stage of the legal proceeding is assigned a “cost” (more common)
- Solicitor client costs: the entire legal bill (less common)
