Midterm (Post Quiz 1)

Question 1

What is litigation?

Answer 1

Legal matter which has the potential to go to court.

Question 2

What are the two differing types of courts?

Answer 2

Trial courts and appeal courts.

Question 3

Whom does the burden of proof fall upon in a criminal case?

Answer 3

The crown (prosecution) to prove guilt.

Question 4

Whom does the burden of proof fall upon in a civil case?

Answer 4

The plaintiff to prove liability.

Question 5

In which trial courts of the Canadian hierarchy may juries be present?

Answer 5

In the Alberta Court of Queen’s Bench and above (SCC).

Question 6

What are some main differences of appeal courts when compared to trial courts?

Answer 6

• No trial
• No witnesses or exhibits of evidence
• Only review past court decisions

Question 7

How many judges partake in trial courts vs. appeal courts?

Answer 7

Trial Court: 1 judge

Appeal Court: Panel of judges

Question 8

To what extent must evidence be proved in a criminal trial?

Answer 8

Beyond a reasonable doubt.

Question 9

To what extent must evidence be proved in a civil trial?

Answer 9

On a balance of probabilities.

Question 10

How is provincial court’s jurisdiction limited?

Answer 10

There is a $50,000 claim limit for civil cases.

Question 11

What are the 5 divisions of Provincial Court?

Answer 11

1. Criminal
2. Traffic
3. Youth
4. Family
5. Civil

Question 12

Even though a lower provincial court cannot grant divorce, what can they do involving family matters?

Answer 12

Can deal with custody child/spousal support cases.

Question 13

What are the courts established by the federal government, in order of hierarchy?

Answer 13

1. SCC
2. Federal Court of Appeal
3. Federal Court
4. Tax Court of Canada

Question 14

What do federal courts deal with?

Answer 14

Intellectual property, immigration, tax, or any other federal government department.

Question 15

Who appoints justices from the provincial superior and lower courts?

Answer 15

Federal government appoints provincial superior court justices.
Provincial government appoints provincial lower court justices.

Question 16

When would a civil trial go to small claims court?

Answer 16

When the claim is less than $50,000

Question 17

What is the general rule of the limitation act?

Answer 17

Most lawsuits must be within 2 years of discovering the claim and 10 years from when the claim arose (or when the accident happened). Whichever period expires first holds precedence.

Question 18

What are some exceptions of the general rule of the limitation act?

Answer 18

• Agreement of both parties to extend
• Part payment of debt or acknowledgement of debt
• Fraudulent concealment
• Disability

Question 19

How does one commence and litigate a suit in the provincial court, civil (small claims court)?

Answer 19

Fill out page 1 of provincial court of Alberta claims sheet.

Question 20

What is the fee for making a claim in small claims court?

Answer 20

$100 for claims $7500

Question 21

What must a claim include?

Answer 21

Proper names of both parties, amount of claim, what you’re claiming the money for. Satisfy five Ws

Question 22

What are some methods of serving a defendant?

Answer 22

• Personal service (default)
• Substitutional service
• Service by registered mail

Question 23

What are the defendants 4 choices in defending an action upon getting served?

Answer 23

1. Do nothing
2. Negotiate a settlement
3. Pay the claim
4. Defend the action, deliver dispute note

Question 24

What happens if a defendant does nothing upon getting served.

Answer 24

He/she loses the lawsuit if the claim is ignored for 20 days (or 30 outside AB)

Question 25

What are three matters of procedure that may occur after a dispute note is filed by a defendant?

Answer 25

- Proceed to mediation - Proceed to pre-trial conference - Proceed directly to trial

Question 26

Who goes first in a small claims trial and why?

Answer 26

Plaintiff, he/she has burden of proof.

Question 27

What are the three witness procedures?

Answer 27

- Direct examination (asking one's own witnesses) - Cross examination (asking opposite party's witnesses) - Re-examination (when first party allowed to re-direct questions to witness, but ONLY with regard to matters raised during cross examination)

Question 28

What is a leading question and when can it be asked to a witness?

Answer 28

A harsher type of question, challenges witness's recall of the fact, not very open. Can only be used in cross examination and not in direct examination.

Question 29

What happens at the end of a small claims trial? What happens if the plaintiff is successful?

Answer 29

Judge renders a decision. If plaintiff is successful a writ of enforcement is obtained.

Question 30

Where is a small claims court decision appealed? When must it be appealed by?

Answer 30

The ACQB. | Within 30 days, must prepare and file notice of appeal and ORDER a transcript of the evidence.

Question 31

When must the transcript of evidence be filed after filing a notice of appeal to the ACQB?

Answer 31

Within 3 months.

Question 32

What are the 5 steps of litigation in the court of queen's bench?

Answer 32

1. Exchange of Pleadings 2. Discovery Process 3. Settlement Attempts 4. The trial 5. Collection/enforcement of the judgment

Question 33

What are the two sub-steps of the discovery process? (ACQB)

Answer 33

a. Discovery of records | b. Examinations for discovery

Question 34

What is the discovery of records? (ACQB)

Answer 34

One party sends a notice to produce records to the other. Requires that the party disclose in an affidavit of records all papers/docs that may be relevant

Question 35

What is the examinations for discovery? (ACQB)

Answer 35

Both parties, their lawyers, and a court reported attend to give lawyers the opportunity to cross-examine the opposite party under oath.

Question 36

What are some benefits of settling out of court?

Answer 36

- Gives certainty of result - Saves cost - Saves time - Saves stress - Avoids possible embarrassment

Question 37

When may a settlement be attempted?

Answer 37

Any time prior to trial.

Question 38

Who goes first in a ACQB civil trial and why?

Answer 38

Plaintiff, he/she has burden of proof.

Question 39

What are the two types of costs awarded to the successful party at the end of a trial? Explain each. Which is more common?

Answer 39

- Party/party costs: Each stage of the legal proceeding is assigned a "cost" (more common) - Solicitor client costs: the entire legal bill (less common)