Ch.2 The Judicial System and Alternative Dispute Resolution

Question 1

Court plays important role in society

Answer 1

Decide disputes

Chief interpreters of constitution

Guardians of rights and freedoms

Deciding on legislative jurisdiction under Constitution Act

Interpret contracts

Determine responsibility and damage for loss

Question 2

Jurisdiction

Answer 2

right or authority of a court to hear a matter

Authority to deal with cases of a particular type:
Monetary - up to a set amount
Geographic - within a particular province
Subject matter - criminal, family, civil, etc.
Trial or Appeal

Authority over the parties or property in dispute

Question 3

Two classifications for courts of law:

Answer 3

1. Original Jurisdiction - case heard for first time
   a. Trial courts - court in which a legal action is first brought before a judge for a decision
2. Courts of appeal - hear appeals from trial courts
   a. Superior or “higher” courts
   b. Do not hear evidence
   c. Look for errors of law

Question 4

Federal Courts

Answer 4

Deals with federal matters under federal government jurisdiction

Disputes between provincial and federal governments
Actions against federal government
Admiralty, patents, trademark, copyright, taxation
Appeals from federal boards, tribunals and commissions

Question 5

Provincial Courts

Answer 5

Each province has authority to establish own system

Variation in names and powers exist but overall similar in function

Question 6

Criminal Courts

Answer 6

Magistrate’s or Provincial Court
Provincial Supreme Court:
Youth Courts:
Criminal Courts of Appeal

Question 7

Magistrate’s or Provincial Court:

Answer 7

Court of original jurisdiction
Initially deals with all criminal cases
Holds preliminary hearings of serious cases to send it to higher court

Question 8

Provincial Supreme Court:

Answer 8

Hears more serious criminal matters

Question 9

Youth Courts:

Answer 9

Hears cases of youth who commit crimes - 12 years or older and under 18 years of age
Youth Criminal Justice Act

Question 10

Criminal Courts of Appeal

Answer 10

Hear appeals from lower courts

Review convictions by other courts
Presided panel of judges
Typical Criminal Appeals* Process (refer to image)

Question 11

Civil Courts

Answer 11

Provinces have several civil courts
Small Claims Court:
Provincial Supreme Court

Question 12

Provincial Supreme Court

Answer 12

Hear civil disputes outside or beyond jurisdiction of lower courts
Unlimited jurisdiction in monetary matters
Presided over by a federally appointed judge
Designation of court varies by province

Question 13

Small Claims Court:

Answer 13

Hear cases where amount of money involves is smaller (~$25,000 to $50,000)
Amount varies by province
Litigants frequently present their own cases
Typically small debt or contract disputes and damage cases

Question 14

Provincial civil courts

Answer 14

Deal with disputes between corporations or individuals, or
Between corporations or individuals and government

Question 15

Provincial Court of Appeal:

Answer 15

Hears appeals in each province from lower courts
Designation of court varies by province
Lines of appeal now always clear-cut

Question 16

Supreme Court of Canada

Answer 16

Final and highest Appeal Court in Canada
Hears all appeals from all courts including Federal
Right to appeal is restricted, leave (permission) by the court must be obtained

Question 17

Criminal Court Procedure

Answer 17

Enforcement of criminal law

Procedure:
-Offence is read to the accused by the Crown
-Accused makes a plea - guilty or not guilty
-Guilty plea
-Not guilty plea -
-Acteus reus
-Mens rea
-Record judgement

Question 18

Guilty plea

Answer 18

court hears evidence, lodges conviction and imposes penalty

Question 19

Not guilty plea

Answer 19

Crown proceeds with evidence

Question 20

Acteus reus

Answer 20

accused committed a criminal act

Question 21

Mens rea

Answer 21

• accused intended to commit the criminal act

Question 22

Record judgement

Answer 22

• decision of the court

Question 23

Civil Court Procedure

Answer 23

Pleadings:
Close of Pleadings:
Discovery:
Trial (Procedure):

Question 24

Pleadings

Answer 24

written statements prepared by parties that set out facts and claims of legal action

Question 25

Plaintiff

Answer 25

• party bringing an action; files statement of claim

Question 26

Defendant

Answer 26

• party defending an action; files statement of defence

Question 27

Counterclaim

Answer 27

• filed by Defendant if has claim against Plaintiff

Question 28

Reply

Answer 28

• filed by Plaintiff if disputes statements in Statement of Defence

Question 29

Close of Pleadings:

Answer 29

Once pleadings have been closed, either party sets it down for trial

In Ontario the court often requires the lawyers to agree to a schedule for moving the action forward

May require some form of attempt at dispute resolution before going to trial (Toronto actions require mandatory mediation)

Question 30

Discovery

Answer 30

To clarify points in statement of claim, parties may hold examinations for discovery

Conditional upon delivering a list of all documents the party will rely on in trial, called an affidavit

Any question of fact relating to the issue in the action may be asked

Where questions cannot be answered during an examination or documents are unavailable the party being examined can either “undertake” to provide them later or “refuse” to provide them

Question 31

affidavit

Answer 31

• a sworn, written statement, subject to penalty

Question 32

examinations for discovery

Answer 32

• pretrial oral or written examination under oath

Question 33

Trial (Procedure):

Answer 33

Opening statement sets out issues and facts

Plaintiff presents evidence and calls witnesses

Defendant can cross examine

Defendant presents evidence and calls witnesses

Plaintiff can cross examine

Parties sum up respective cases for the judge

Judge renders a decision with reasons = judgement

Question 34

Witnesses

Answer 34

Ordinary witnesses

Expert witnesses

Courts insist that “best evidence” be presented
Hearsay evidence not allowed - evidence given by a person that is not within that person’s own direct knowledge

Question 35

Ordinary witnesses

Answer 35

testify as to what they saw, heard or did (direct evidence)

Question 36

Expert witnesses

Answer 36

• recognized experts on a subject and give opinion evidence within area of expertise
  E.g. Medical experts, accountants

Question 37

Damages

Answer 37

When a party is successful, the court will award the damages that would restore them to where they would be but for the defendant’s action

Therefore, the party must prove their damages. It is not enough to simply prove that a contract was breached

Many disputes are not about the facts, but about the quantum of damages

Question 38

Appeal

Answer 38

Either party can appeal to a higher court if one feels the judge erred in application of the law or admission of evidence

Serve a notice of appeal within short time period

Court can:
Affirm decision and dismiss appeal
Admit appeal and reverse or vary decision
Send case back for new trial

Question 39

Court Costs

Answer 39

Costs litigants incur:
Court costs and counsel fees awarded at discretion of court

Question 40

Costs litigants incur:

Answer 40

Fees imposed by government
Fees of lawyers or paralegals

Question 41

Court costs and counsel fees awarded at discretion of court

Answer 41

“Costs on a party-and-party” basis - judge awards successful party costs incurred plus a fixed counsel fee according to a tariff or schedule

“Solicitor-and-client” basis - court orders unsuccessful party to pay plaintiff’s legal expenses

Question 42

Contingency Fees

Answer 42

Unlike Canada, US uses a contingency fee system

Cons: encourages frivolous litigation and compromises a lawyer’s sense of justice in the search for profit
Pros: allows for greater access to justice, as plaintiffs who could not previously afford to hire a lawyer now can

Most Canadian jurisdiction now allow for some type of contingency fee arrangement

Question 43

Contingency fee

Answer 43

• lawyer’s fee payable on the condition of winning the case i.e. if lawyer does not win he/she does not get paid

Question 44

Class Action

Answer 44

• action where a single person represents the interests of a group who will share in any reward

Proceedings require identification and legal recognition that a class exists
Representative plaintiff must fairly represent everyone with enough time, money, understanding of issues and no conflicts of interest

Question 45

Administrative Tribunals

Answer 45

Boards or commissions charged with regulation certain business activities

Established under specific legislation
Powers set out in statutes
E.g. Canadian Radio-television and Telecommunications
Expected to hold hearings at which affected parties may fairly present their case
Ad hoc tribunals - tribunal established to deal with a particular dispute between parties

Question 46

Alternative Dispute Resolution (ADR)

Answer 46

Alternatives to the courts

Types:
-Mediation
-Arbitration

Advantages include:
-Speed at which hearings are held
-Informality and confidentiality
- Lower cost

Most common is arbitration - process for settlement of disputes whereby impartial party hears the dispute, then makes a binding decision

Indigenous Justice Systems:

Question 47

Indigenous Justice Systems:

Answer 47

Quasi-independent Indigenous justice system tries to incorporate traditional values and customs

Community elders and healers are vital

Focus on community inclusion, healing and support
2016 Mohawk band council of Akwesasne created Indigenous legal system outside federal framework

Question 48

Attorney

Answer 48

• a lawyer

In Canada, all attorneys are both solicitors and barristers

Question 49

Solicitor

Answer 49

• lawyer who prepares documents and other forms of non-litigious

Traditionally did not appear in court

Question 50

Barrister

Answer 50

• a lawyer who acts for clients in litigation or criminal court proceedings