Module 6-10

Question 1

What is ADR or Alternative dispute resolution

Answer 1

ADR includes settlement offers, mediation, arbitration, and judicial dispute

Fact: most legal disputes are resolved without going to trial

Question 2

What are some advantages of ADR instead of suing in court

Answer 2

Save money 
Save time 
Confidentiality/ avoid publicity 
May preserve relationship 
Flexible 
Do we want to establish or avoid creating precedent ?

Question 3

What are the 4 different types of ADR?

Answer 3

Settlement offers/ negotiation - very common, offers can be made by either side at any time before or even during an on going lawsuit even during trial.

Mediation- the parties hire a non biased third party to help them reach a deal, mediators do not make decisions instead they help the parties reach agreement, parties pay for the mediatior and sometimes free mediation services ade available at the court house, mediation can be made mandatory by agreement in a contract

Arbitration - a non judge makes a legally binding decision, this may be mandatory or voluntary: parties can agree on contract to resolve disputes by arbitration, mandated by some legislation, very common in international business disputes

Judicial dispute resolution- a procedure offered by the Alberta court of Queens bench. Formally called a mini trial, parties meet together with an actual judge who provides a non binding decision, the parties often settle on the basis of the judges recommendation, it takes place at the court house

Question 4

Special advantages of JDR?

Answer 4

Free other then your own legal fees, the parties get to hear it from a judge, is without prejudice and all records are expunged from the court house

Question 5

Advantages of settling over going to trial ?

Answer 5

Offers can be made without prejudice which means your offer cannot be used against you later if you have to go to court

Can be inform ( a meeting or offer letter ) or formal ( using the rules of the court

Formal offers: added incentive because may result in a cost penalty for not accepting a reasonable offer

Question 6

Civil case

Answer 6

Private lawsuits initiated by people or business at their own expense

Example: negligence lawsuit or breach of contract lawsuit

Question 7

Criminal case

Answer 7

Part of public law system, case initiated by the crown ( government )

Example breach of traffic laws or criminal code

Question 8

How much evidence do you need to win ?

Civil vs criminal

Answer 8

Civil: beyond the balance of probabilities

Criminal: beyond a reasonable doubt

Question 9

Is it possible to be sued In a civil lawsuit and to also be prosecuted by the crown in a criminal case ?

Answer 9

It is possible to be sued in a civil lawsuit and to also be prosecuted by the crown in a criminal case example OJ Simpson case but you can only sue once in both a civil and criminal case

Question 10

Define res judicata

Answer 10

The civil case was decided already and the plaintiff cannot sue again

Question 11

Define double jeopardy

Answer 11

The criminal case was decided already and the crown cannot prosecute again

Question 12

List the levels of the court system in Canada in order from the top.

Answer 12

Supreme Court if Canada 
Federal court system 
Alberta court of appeals 
Court of Queen's bench 
Provincial court of Alberta 
Boards and tribunals

Question 13

For most lawsuits your right to sue expires on the sooner of:

Answer 13

A. Two years from when you knew or ought to have known of the claim against the defendant

OR

B 10 years after the legal wrong took place

Note: agreements to shorten limitation periods are void

Question 14

Other limitation rules include

Answer 14

Limitation periods are suspended if the legal wrong was deliberately concealed by the wrongdoer (ex fraud) and only runs from when discovered

Limitation periods are suspended while you are a minor or mentally incompetent

No limitation period for sexual abuse/ assault disabled person

Special rules for trespassers injury lawsuits

Special rules for claims by aboriginal peoples of breach of fiduciary duty by crown

Question 15

If you loose a lawsuit what are the two costs the court will order you to pay?

Answer 15

1. Party and party’s cost - the loser pays a set amount for each step in the lawsuit ( usually less than the real costs about 50-65% ) this is born award in most lawsuits
2. Solicitor and client costs - the loser has to pay the actual legal costs of the winner. The court will order these costs if the loser conduct was dishonourable such as:
   Frivolous lawsuit
   Improper conduct during the lawsuit
   Unproven allegation of fraud

Question 16

Provincial court of Alberta Steps in a lawsuit

Answer 16

1. Plaintiff prepares a civil claim form setting out the basis for the lawsuit and amount claimed
2. Plaintiff files civil claim ( 100 if the claim is less then 7500 and 200 If more up to 50k)
3. Plaintiff serves defendant
4. Defendant has 20 days to file a dispute and may counter claim
5. If not resolved in mediation, trial date will be set
   6 14 days before trial each party serves a trial statement with list of witnesses and documents you wish to rely on
   7 serve witness with notice to attend
   8 trial takes place ( usually 3-4 months after lawsuit started )

Question 17

Lawsuit steps in court of Queens bench

Answer 17

1. Plaintiff files a statement of claim filing fees 250
2. Serves defendant
3. Defendant has 20 days to file and serve statement of defence filing fee 50 and may counter claim
   4 discovery process begins
   - cross examination under oath by parties of eachother
   - exchange the affidavit of records
4. Parties answer undertakings requests for info docs
   6 trial is booked
   7 parties serve witness a notice to attend
   8 trial
   9 30 days to appeal to court of appeal

Question 18

2 types of settlement offers

Answer 18

Informal - very common and will be part of what your lawyer is working on for you, letters or meetings exchanged by both sides containing statements of legal position and an offer to settle, cannot be used against you later in court without prejudice

Formal - utilize a court procedure called formal offer, can be used by either side, must be kept open for 40 days, free other then the lawyers prep time

Question 19

What can you ask the court for when you sue some one ?

Answer 19

Damages
Default remedy the norm remedy in a lawsuit
Purpose is to compensate for losses not punishment
All losses must be proven or they will not be awarded
The court will only award enough to compensate not a penny more

Question 20

What are the types of damages? And 2 types of remedies in addition to damages

Answer 20

General damages

Special damages

Punitive damages

2 types in addition to:

Recesion

Accounting

Question 21

General damages

Answer 21

Includes pain and suffering damages upper limit of 350k
Includes future losses ex lost earning capacity
Future care costs, future expected expense/ losses of capacity

Question 22

Special damages

Answer 22

All out of pocket losses up to the time of trial ex income loss up to trial, property damage, repair costs, medications ect

Question 23

Punitive damages

Answer 23

Rare in Canada, common in the USA awarded soley to punish rare because we see punishment as the role of the criminal courts. May be awarded if particularly egregious behavior ( sexual assault, fraud ect)

Question 24

Recesion

Answer 24

The court orders that a contract be unwound parties restored to original position

This is equitable remedy

Question 25

Accounting

Answer 25

Court orders defendant to open the books and show what was wrongfully made and to pass it over to the plaintiff

Question 26

What does injunction mean ?

Answer 26

The court orders someone to stop doing something

This is equitable remedy

Question 27

Specific performance

Answer 27

A breach of contract remedy

Court orders fulfillment of a contract promise