Chapter 3

Question 1

Describe what Alternative Dispute Resolution (ADR) is

Answer 1

A process for resolving disputes as an alternative to the courts

Question 2

What are the three types of ADR?

Answer 2

(1) Negotiation - parties or their lawyers engage directly to find a solution. (2) Mediation - neural third party facilitates discussions. (3) Arbitration - neutral third party makes a binding decision after hearing evidence—cannot be appealed except under severe procedural errors.

Question 3

What are the advantages of using ADR?

Answer 3

Cost efficient, time saving, promotes privacy, higher compliance rate, maintains relationships.

Question 4

When should you not use ADR?

Answer 4

Legal precedent is required, there’s a power imbalance between parties, parties unwilling to negotiate or disclose key information.

Question 5

Describe the provincial court hierarchy

Answer 5

(Lower level) - provincial court. (Senior level) - Supreme Court or Court of Queen’s Bench. (Appellate level) - Provincial appellate courts. Supreme Court of Canada.

Question 6

What are some specialized courts?

Answer 6

Domestic Violence Court. Drug Treatment Court. Mental Health Court.

Question 7

What are the Federal courts?

Answer 7

Federal court, Federal Court of Appeal, Tax Court of Canada.

Question 8

What are the steps for civil litigation?

Answer 8

(1) issuing of a writ of summons (2) appearance (3) statement of claim (4) statement of defence (5) counterclaim and defence to counterclaim (6) discovery (7) trial proceedings (8) judgement and enforcement

Question 9

What is the limitation for pursuing civil litigation?

Answer 9

Must be within 2 years of the event or discovery of damage.

Question 10

What are the three government branches?

Answer 10

Executive, legislative and judicial.

Question 11

What are some disadvantages of using ADR?

Answer 11

Judicial fairness and impartiality are not guaranteed, courts have more power to extract info, decisions don’t follow precedent, resolutions may not be enforceable.

Question 12

What are the rules of Natural Justice?

Answer 12

(1) Fair hearing - complaint at must have notice and opportunity to be heard. (2) Decision must be made by persons hearing the evidence. (3) Impartiality - no bias or appearance of bias in decision makers.

Question 13

Describe Judicial reviewing of Administrative Decisions

Answer 13

(1) must adhere to natural rules of justice. (2) review of the process by which the decision was made not on the decision itself. (3) courts use prerogative writs for judicial review.

Question 14

What must be present for a Judicial review of an Administrative decision?

Answer 14

Invalid statute, decision or remedy goes beyond power set out in legislation, errors of law on the record, failure to follow procedural fairness, abuse of power.

Question 15

What is Prerogative Writs?

Answer 15

When a public official or tribunal has breached their duty

Question 16

What is Certiorari?

Answer 16

Nullifies a tribunals decision

Question 17

What is Prohibition?

Answer 17

Prohibits a tribunal from proceeding

Question 18

What is Mandamus?

Answer 18

An order compelling a government to perform it’s duties

Question 19

Canadian courts are now open to the public and the press, explain two exemptions to this rule

Answer 19

(1) national security or (2) a case involving children

Question 20

What is the burden of proof in criminal prosecutions? In civil litigations? Who must satisfy the burden in each case?

Answer 20

The burden of proof in criminal prosecution is beyond reasonable doubt. In civil limitation it is on balance of probabilities. The burden of proof is on the crow in a criminal matter and on the plaintiff in a civil case.

Question 21

What jurisdiction does a provincial court have? What is the monetary jurisdiction of the small claims court in Alberta?

Answer 21

Provincial courts have jurisdiction over less serious criminal offences, small claims disputes, family issues—except divorce—, and youth offences. The monetary jurisdiction of the small claims court in Alberta is $50,000

Question 22

What jurisdiction does a superior court have? Which court would you go to as the executor of an estate?

Answer 22

Superior courts have jurisdiction over serious criminal offences, civil disputes involving any amount of money, divorces, probate matter, and bankruptcy cases. The Surrogate Court handles estate matters

Question 23

Distinguish between questions of law and questions of fact, explain why this distinction is significant

Answer 23

(1) a question of fact is a question regarding the details of an event. (2) a question of law deals with the rules that are applied by the courts to the particular situation. As a general rule it is only questions of law or disputes over a legal question that can be appealed to a court of appeal.

Question 24

Describe the Nunavut Court of Justice

Answer 24

Canada’s first single level court. Judges in this court are given the powers of both the superior trial courts and territorial courts—meaning these judges can hear all of the cases that arise in the territory.

Question 25

Describe mental health courts

Answer 25

These courts focus on the treatment and rehabilitation of those who have committed criminal acts because of mental disorders.

Question 26

Does an appeal result in a new trial?

Answer 26

An appeal is not a new trial.

Question 27

Who appoints judges in Canada?

Answer 27

The federal and provincial justice ministers appoint federal and provincial judges. In the Supreme Court of Canada the judges appointed are by the Prime Minister.

Question 28

Who appoints judges in Canada?

Answer 28

The federal and provincial justice ministers appoint federal and provincial judges. The Supreme Court of Canada appoints judges by the Prime Minister.

Question 29

Can a judge be removed if she makes a decision that is against the policy of the government that appointed her?

Answer 29

the judicial branch of government is independent and a judge cannot be removed because a decision is unpopular with the government.

Question 30

Which court hears an appeal from a decision of the Canada Revenue Agency?

Answer 30

The Federal Court hears appeals from CRA.

Question 31

Which court hears appeals from a decision of the Federal Court?

Answer 31

The Federal Court of Appeal hears appeals from the Federal Court

Question 32

Which court hears appeals from The Federal Court of Appeals?

Answer 32

Appeals from the Federal Court of Appeals goes to the Supreme Court of Canada

Question 33

Describe what is meant when the leave to appeal to the Supreme Court of Canada would have to be obtained from it before the appeal could proceed

Answer 33

The courts would have to consider which was the most convenient forum in deciding where the law suit could proceed. The court will have jurisdiction if there is a real and substantial connection and it is the most appropriate court.

Question 34

If you’re unhappy with a decision of the provincial appellate court relating to damages you suffered in a car accident, do you have the right to appeal to the Supreme Court of Canada?

Answer 34

Leave to appeal to the Supreme Court of Canada would have to be obtained from it before the appeal could proceed.

Question 35

Why should an online business include a forum selection clause in its sales contracts?

Answer 35

Since commercial forum selection clauses are usually enforced. However they may not be enforced when there is an inequality in bargaining power and public policy concerns.

Question 36

How does the discovery process take place in civil litigation?

Answer 36

(1) The discovery and verbal examination for discovery are essential in the litigation process. Info is disclosed to both parties so there are no surprises later. (2) Discovery of documents or record involves each party to the litigation to inspect and copy the relevant records of the other party. (3) verbal examination is when, through a lawyer, one party is questioned under oath on matters relevant to the litigation.

Question 37

What is the significance of the discovery process in a civil litigation?

Answer 37

Disclosure of info makes settlement of the dispute more appealing to the parties, which can reduce costs and taking up the courts time.

Question 38

Explain how an offer to settle can affect the judgement award made by the court to the plaintiff.

Answer 38

If a settlement is refused by the other party, the eventual judgement awarded by the court differs from the original offer and therefore just costs more. (2) the plaintiff will not receive compensation for costs that have been incurred after the formal offer to settle.

Question 39

Compare party-party costs to solicitor-client costs. To whom are these costs generally awarded?

Answer 39

Either solicitor-client or party-party costs are awarded to the victor and paid by the loser in civil action.

Question 40

Distinguish among the various remedies available to a successful plaintiff in civil action

Answer 40

Damages (Money awarded) - which are usually compensatory but may be punitive. Accounting - where the wrongdoer must account for an amount and pay it to the victim, replevin or restoration of personal property. Injunction - an order to stop doing some inappropriate activity. Specific Performance - an order to do what is greed to in the contract. Declaration - where the court makes a declaration as to the law and is usually combined with other remedies.

Question 41

Explain the role of examination in aid of execution in enforcing remedies

Answer 41

Once judgement has been obtained it is possible for the judgement creditor to have an examination held to question the debtor as to the amount and location of all assets.

Question 42

What are the methods available to enforce a judgement against a debtor who is trying to avoid payment.

Answer 42

After the hearing a judgement creditor can ask the sheriff or civil enforcement agent to seize the various assets which will be sold to pay off the debt. Bank accounts and wages owing to the judgement debtor can be garnished to satisfy the judgement.

Question 43

Explain the value of an injunction as a prejudgment remedy.

Answer 43

An injunction can be obtained against an institution holding funds for the debtor to prevent the funds being surrendered to the debtor. This keeps the debtor from disposing of such funds.

Question 44

Under what circumstances will the courts review a decision made by a government bureaucrat or administrative tribunal?

Answer 44

(1) where administrative agencies have no authority to make a decision or stepped outside their authority. (2) when rules of natural justice have not been followed (3) error of law

Question 45

What must be examined to determine whether a decision maker has acted within their authority?

Answer 45

There must be a valid statute or regulation that empowers the decision maker.

Question 46

What are the requirements of a fair hearing?

Answer 46

Evidence and positions must be heard by both parties and decision maker and must have impartiality.

Question 47

What is a privative clause? How do the courts usually react to them?

Answer 47

A provision in state which prevents the courts from reviewing the decision of an administrative tribunal. The court reacts very strictly because this would be an attempt to exclude judicial review.