Unit 3: The Resolution Of Dipute — The Couts and Alternatives To Litigation

Question 1

Branches of government power ( Both federal and provincial)

Answer 1

Legislative branch- branch that writes laws - legislative assemblies and parliament

Judicial branch - branch that consist of courts and they oversee the fairness of law and make case laws

Administrative executive branch – consists of Prime Minister and cabinet ministers and all government parties and agents (RCMP) , (CRA) - also known as the crown.

Question 2

The courts

Answer 2

Criminal and civil functions - because the courts will make decisions in both areas

Trial and a Appellate Function - can cinduct trail (first point of conduct) and also hearing appeals.

Question 3

Criminal case merits

Answer 3

Crown must proves the case beyond a reasonable doubt

Question 4

Civil case merits

Answer 4

Course decision is based on balance of probabilities ( 50 50)

Question 5

Pre-trial proceedings

Answer 5

1- Pleadings include:
- Notice of Civil Claim (BC) (Plaintiff)
- Response to civil Claim (BC) (Defendant)
-Counterclaim

2- Discovery includes:
- Documents
- Examination of witnesses under oath

3-Payment into court

Question 6

Trial rules

Answer 6

-Burden proof rests with claimant/plaintiffs

-Rules of evidence must be followed

-Jury decides questions of facts(what happened, was it raining call mom what was said, what was done)
– judge determines the question of law (which law is applied)
-If jury is not present, the judge will decide both.

Question 7

Party and party costs

Answer 7

Court costs determined by a tariff, stabbing about losing party in the civil action auto pay(will cover some, but usually not all the costs of opposing party.)

Question 8

Solicitor and client costs

Answer 8

The opposing party would pay all the costs incurred by the opposing party

Question 9

Remedies

Answer 9

Damages
Equitable Remedies

Question 10

Different type of damages

Answer 10

General damages: compensate for non-monetary aspects of harm suffered, such as pain and suffering, emotional distress, loss of enjoyment of life

Special damages: economic damages. These cover the monitor expense that can be calculated improving with receipts estimates (medical bills, repair costs, etc)

Punitive damages: these are meant to punish the defendant, for particularly reckless and malicious behaviour

Question 11

Different type of equitable remedies

Answer 11

Accounting: giving details report of financial transactions, or profits, must be provided by one party to another.

Injunction remedy: an injunction is and court order that requires one party to do or to refrain from doing specific acts

Specific performance: this remedy involves requiring a party to perform their obligation under contract ( sale of real estate, rare item)

Question 12

Enforcement

Answer 12

– Enforcement and aid of execution: an examination of debtors assets, in order to pay the damages

• seizure of property
• garnishment of wages: deducting the ordered amount from your paycheque before it even gets to your hands
• Attachment of debt: seizing debtor’s receivable

– Prejudgment remedies: designed to secure assets, and protect the interest of plaintive by preventing the defendant from transferring, hiding, or disposing on assets.

– Injunction: preventing, defendant from doing is a specific action

• Limitation Periods: you have a specific time to file a lawsuit, if that. Passes you cannot sue. The defendant (from the date claim was discovered.) - for BC the limitation period is two years for tort cases.

Question 13

Key aspects of administrative law

Answer 13

Rule-making: administrative agencies have the authority to create rules and regulations that have the force of law. These rules must create it through a transparent process, often involving public comments, to ensure that stakeholders have chance to participate in the role making process.

Adjudication : agencies often have quasi judicial powers, meaning they can make a decision on matters, such as dispute between parties, or disciplinary action against individuals or entities under regular purview. (These processes should follow the principles of natural justice)

Enforcement: taken enforce the rules they create.(inspections, fines)

Judicial review: decisions made by administrative agencies, can generally be reviewed by judiciary.

Question 14

Authority of decision maker in administrative branch

Answer 14

-rule of law - government officials must rely on legislation to authorize your acts. They cannot interfere with persons rights by virtue of their position.

• ultra vires (beyond jurisdiction) vs intra vires (inside jurisdiction)
  Authority of decision maker may be challenge, if they act beyond power or wrong decision

Validity of statue or regulation, can be determined by the court

Question 15

Rules of natural justice

Answer 15

Fair hearing – complaint must have noticed an opportunity to be heard

Heard by the same the decision maker - the people making decision must be the same ones hearing the evidence.

Impartiality - no bias on part of decision maker.

Question 16

Judicial review of administrative branch

Answer 16

Must have exhausted all the appeal mechanisms within administrative branch

Court review - not the decision but the process by which it was made

deals with questions of procedural fairness

Decides whether decisions and remedy go beyond powers set in the legislation

Decide whether the decision of administrative tribunal involves errors of law

Question 17

Methods of judicial review

Answer 17

Prerogative Writs - available when a DOT to act fairly (the administrative body) has not been met

    -Certiorari-notifies administrators decision
    -Prohibition-prevents a decision been made

    -Mandamus- force a decision

Question 18

Private clauses

Answer 18

Statue contain provision that make it difficult for the courts to conduct judicial reviews in administrative body decision.

  - Court deemed them not to apply win the administrative body/board has gone beyond its jurisdiction or authority

  -court retains rights to interpret statuary provisions

  Decisions/acts of administrative bodies are subject also to the charter of rights and freedoms

  Courts will only interfere where there is serious problem

Question 19

Alternative Dispute Resolution

Answer 19

Negotiation
Mediation
Arbitration