Module 6-10 Flashcards
What is ADR or Alternative dispute resolution
ADR includes settlement offers, mediation, arbitration, and judicial dispute
Fact: most legal disputes are resolved without going to trial
What are some advantages of ADR instead of suing in court
Save money Save time Confidentiality/ avoid publicity May preserve relationship Flexible Do we want to establish or avoid creating precedent ?
What are the 4 different types of ADR?
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
Special advantages of JDR?
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
Advantages of settling over going to trial ?
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
Civil case
Private lawsuits initiated by people or business at their own expense
Example: negligence lawsuit or breach of contract lawsuit
Criminal case
Part of public law system, case initiated by the crown ( government )
Example breach of traffic laws or criminal code
How much evidence do you need to win ?
Civil vs criminal
Civil: beyond the balance of probabilities
Criminal: beyond a reasonable doubt
Is it possible to be sued In a civil lawsuit and to also be prosecuted by the crown in a criminal case ?
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
Define res judicata
The civil case was decided already and the plaintiff cannot sue again
Define double jeopardy
The criminal case was decided already and the crown cannot prosecute again
List the levels of the court system in Canada in order from the top.
Supreme Court if Canada Federal court system Alberta court of appeals Court of Queen's bench Provincial court of Alberta Boards and tribunals
For most lawsuits your right to sue expires on the sooner of:
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
Other limitation rules include
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
If you loose a lawsuit what are the two costs the court will order you to pay?
- 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
- 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
Provincial court of Alberta Steps in a lawsuit
- Plaintiff prepares a civil claim form setting out the basis for the lawsuit and amount claimed
- Plaintiff files civil claim ( 100 if the claim is less then 7500 and 200 If more up to 50k)
- Plaintiff serves defendant
- Defendant has 20 days to file a dispute and may counter claim
- 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 )
Lawsuit steps in court of Queens bench
- Plaintiff files a statement of claim filing fees 250
- Serves defendant
- 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 - 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
2 types of settlement offers
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
What can you ask the court for when you sue some one ?
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
What are the types of damages? And 2 types of remedies in addition to damages
General damages
Special damages
Punitive damages
2 types in addition to:
Recesion
Accounting
General damages
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
Special damages
All out of pocket losses up to the time of trial ex income loss up to trial, property damage, repair costs, medications ect
Punitive damages
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)
Recesion
The court orders that a contract be unwound parties restored to original position
This is equitable remedy
Accounting
Court orders defendant to open the books and show what was wrongfully made and to pass it over to the plaintiff
What does injunction mean ?
The court orders someone to stop doing something
This is equitable remedy
Specific performance
A breach of contract remedy
Court orders fulfillment of a contract promise
