midterm 1 Flashcards
Substantive Law
The rights and rules that govern behavior and set limits on conduct
Procedural Law
Determines how Substantive Laws will be enforced
Public Law
Includes Constitutional Law, Criminal Law, Administrative Law and determines how country is governed and regulates our relationship with government.
Private Law
Governs personal, social and business relationships
Includes tort law, business law, and contract law
also referred to as civil law
Stare Decisis
a system where judges must follow precedent
feature of common law the decision of a judge is binding on all judges in lower courts
Allows the parties to predict the outcome of the litigation and thus avoid going to court
Following precedent can be inflexible and may not acknowledge changing social attitudes
Law of equity
Provides equitable relief/remedies when there is a recognizable right but no remedy under the common law
Allowed flexibility in decisions but also appeared arbitrary
Statute Law
The body of principles and rules of law laid down in statutes
Paramountcy
Powers of the federal and provincial governments can overlap considerably\
if they overlap incidental both laws are valid and apply
Laws truly conflict paramountcy may require that the federal legislation no longer apply
Purpose of tribunals
Specialized courts
provide faster less expensive and more informal process to solve disputes between people
Alternative Dispute Resolution (ADR)
Negotiation - Mediation - Arbitration
Advantages of ADR
-Parties to dispute maintain control of the solution
-Fewer meetings
-Less distraction
-Lower cost
-Less adverse judgements
-Preserves good will
Disadvantage of ADR
-Judicial fairness is not ensured
-Courts could extract more information
-Decisions do not follow precedent
-Resolutions may not be enforceable
-No public record of dispute or decision
Negotiation
-First step in to solve disagreement
-Discuss issue to find solution between parties
-Cooperation and compromise is needed
-Could use representative
-could enhance relationship
Mediation
-Neutral third party helps to settle dispute
-Very common
-Helps find common ground
-Encourages compromises
Disadvantage of mediation
-Parties must be willing to disclose information
-When power is imbalanced, mediation may just exacerbate the weakness of on party
Arbitration
-Third party makes a binding decision
-Very common in Employment Law
-Arbitrators may be specialist in disputes
-Decisions may not be changed but process may be reviewed by a court
-Process is faster more costly more private more formal
Civil Matters
-Two private persons use the court as a referee to adjudicate a dispute
-Decide the matter on the balance of probabilities
Criminal Proceedings
-The government pursues the matter and prosecutes the accused
-The judge or jury must be convinced beyond a reasonable doubt of the guilt of the accused
Remedies
-Damages
General remedies
-Pain and suffering or for future lost wages
Special Remedies
Reimburse the litigant for expenses or cost incurred before trial - Ex. Medical expenses
Punitive Remedies
Not to compensate the victim but rather to punish the wrongdoer - Ex. Prolonging litigation, abusing court process
Class Action
-Identifies class of persons with a common issue
-Reduces the numbers of lawsuits and avoids inconsistent results
-Lower costs for parties and court system
-Court must certify the litigation as a class and appoint a representative plaintiff
-Judgment binds every member of the class
Common Law Legal system
-Function of the royal court was to be impartial and enforce customs and traditions already in place
-Uses stare decisis
