Flashcards in PowerPoint 2 Deck (133):
2 views of what a constitution should protect:
Ideas of individual liberty, constitutionally limited government, peace, and reliance on the institutions of civil society and the free market for social order and economic prosperity.
Protection of the community, as opposed to libertarianism.
Emphasizes the need to balance individual rights and interests with that of the community as a whole, and argues that individual people (or citizens) are shaped by the cultures and values of their communities.
Social Contract Theory
Addresses the questions of the origin of society and the legitimacy of the authority of the state over the individual.
Constitutionalism comes from the ___ ___ ___.
Social Contract Theory.
Can corporations possess rights?
What does the term "person" include?
Living people and corporations.
What does the term "individual" or "citizen" include?
Living people, not corporations.
What sorts of things are included in the Charter?
- Freedom of religion.
- Freedom of expression.
- Democratic rights.
- Freedom of mobility.
- Life, liberty, and "security of person."
- Right to equality.
Interests not protected by the Charter:
Economic and property interests.
Example of corporations arguing freedom of expression:
Corporations “nagging” children through advertising to buy toys.
Example of corporations arguing freedom of religion:
Corporations arguing that they should be able to be open on Sunday.
Examines the harm that the action could cause people. Child pornography fulfils the harm principle, but normal pornography does not.
What is an argument against judges making decisions?
They are not elected, they are appointed. They have a secure job until 75.
The Charter is about ___, not ___.
The government leaving you alone, not what the government owes you.
Are corporations allowed to donate as much as they want to political parties?
No, there is a restriction on how much persons (individuals or corporations) can donate to political parties.
Freedom of Assembly
Ability to protest.
The Charter of Rights and Freedoms only applies against...
Government entities or government action.
Does Charter apply to cases of discrimination in the workplace or for a service?
No, it is covered by human rights tribunals.
Section 1 of Charter
It is okay for the government to violate certain rights in society.
Section 33 of Charter
Legislatures can pass acts that infringe on rights "notwithstanding" the Charter but legislation must be reviewed every 5 years. Notwithstanding Clauses.
Government can ignore courts.
Quebec has one notwithstanding clause that is renewed every 5 years.
Quebec should be bilingual under the Charter. However, only French is required.
MP's are elected and accountable. Judges are appointed and unaccountable. Ultimate authority should rest with parliament.
Parliament creates laws through legislation. Courts identify Charter violations. Parliament may respond by amending or enacting laws to conform with Charter.
Court of Queen's Bench
- Family law.
- Civil matters/tort.
In the Court of Queen's Bench, how many judges are there?
What is the difference between provincial court and Court of Queen’s Bench.
- In civil court, anything below $25,000 goes to provincial court, while anything above goes to Court of Queen’s Bench.
- Court of Queen's Bench can grant divorce.
- No jury in provincial court.
Which court is higher? The provincial court or the Court of Queen's Bench?
The Court of Queen's Bench.
Which court is easier and cheaper to deal with (Court of Queen's Bench or provincial court)?
Summary offences are tried in ___.
Indictable offences are tried in ___.
Court of Queen's Bench.
What is the difference between trial courts and appellate courts?
With trial courts, you are entitled to a trial, but with appellate courts, you must convince the courts that you deserve another trial.
What is a good appeal?
Judge did not interpret case properly. Appeal is questioning legal question. Needs to be a legal argument.
What is a bad appeal?
Judge got facts wrong. That did not happen.
How many judges are in the appellate court?
Do decisions in appellate court have to be unanimous?
No. Majority wins.
What is the judge called when they are not in the majority?
When most but not all judges agree to a decision, the decision is called a...
After the appellate courts, where can you appeal the decision?
How many judges are with the SCC?
Why are there federal courts?
Because of the Constitution. Some things are federal law, and must be isolated.
What is dealt with by the Federal Court of Canada?
Tax, copyright, members of armed forces, or immigration disputes.
Are criminal matters heard in federal courts because the federal government deals with the Criminal Code?
No, they are heard by the provincial courts.
Who can sue?
Adult people, even non-Canadians. Some organizations, but usually not unincorporated associations. Special rules apply when suing government.
Can you sue the government?
No. Basic argument of the Crown of Unity is that people cannot sue the Crown.
Who can act as legal representation?
Differences between lawyers and paralegals:
- Paralegals may be less expensive than lawyers.
- Paralegals may be more specialized in their areas.
- Lawyers can assist on a wide variety of matters, while paralegals are restricted in their practice options.
- Not all provinces yet require Paralegals to be licensed.
- Paralegals may not work on contingency fee basis
Class Action Lawsuits
Group litigation. Allows a single person or small group to sue on behalf of a larger group of claimants.
Benefits of class action lawsuits:
- Allows small individuals to take on large organizations.
- Cost effective way to sue for small but widespread claims.
- May curtail big business behaviour.
- Promotes citizen empowerment and deliberation.
- Powerful as historical record where victims have opportunity to tell story in public proceeding.
Criteria for class action lawsuits:
1. Common issues among all class members.
2. Representative plaintiff who demonstrates workable plan and fairly represents all interests.
3. Notification to all potential members of class.
4. Preferable procedure to traditional litigation.
5. Certification by court to allow class action to proceed.
Why is certification important in class action lawsuits?
Once certified, corporations would normally settle.
Off the bat, the legal fees can amount to 25-40 percent of the settlement.
The richest lawyers in the world are those that work with...
Class action lawsuits.
Contingency fees are common in...
Class action lawsuits.
Contingency fees are paid to the lawyer only if...
The lawsuit is successful.
Do contingency fees cover disbursements?
No, just legal fees.
What is the benefit of contingency fees?
Poor parties are able to afford litigation.
What is the detriment of contingency fees?
- Legal fees are often higher than normal.
- Questionable whether lawyers ask for as much money as the claimants deserve.
3 functions of courts in Canada:
1. Interpret and apply Constitution.
2. Interpret and apply legislation.
3. Create and apply "common law."
Party disputing lower court decision.
Party supporting lower court decision.
Are new witnesses or evidence allowed in appeal courts?
Appelant courts focus on...
Law rather than fact.
Person or corporation that is suing.
Person or corporation that is being sued.
What is the purpose of a civil trial?
Plaintiff suing for monetary compensation or some other civil remedy that does not involve jail or a criminal record.
Documents used to identify issues and clarify dispute. This is how you raise a lawsuit.
Pleadings are ___ on the opposing party to inform them that they are being sued.
Pleadings are drafted by a ___ and issued by ___.
Why can't you send a lawsuit by mail?
You must prove the person received it.
Statement of Claim
Write out why you're suing them.
Statement of Defence
Is always required, need to dispute the statement of claim.
Statement of Defence and Counterclaim
Instead of just saying that they are innocent, they accuse the other party (plaintiff) of something.
Third Party Claim
You deflect blame onto someone else. Most common in three car collisions where the car at the back pushes the car in front into another car.
Demand for Particulars
A demand for more particular information.
Comes up in the context of life insurance. Someone has died with a policy with them. The insurance company does not know who to pay it out to, and want the potential recipients to litigate. Egg them on to sue.
Less than __ of all lawsuits actually proceed to a full trial and a judicial decision.
Courts are set up to...
Deliberately ensure cases do not go to court.
Cannot bring up new information in trial, you need to disclose what evidence you have.
Examination of Witnesses
- Sworn in.
- Both parties have a right to be there.
Who presents case first in a trial?
Plaintiff (as opposed to the defendant).
Who does the burden of proof rest with?
What is the civil trial standard on?
Balance of probabilities (as opposed to beyond a reasonable doubt in criminal trials).
Lawyer makes the person read their own transcript when facts don’t match up. That witness is not credible anymore. You cannot change your story.
Why doesn't defendant present case first?
They have not done anything wrong yet. Plaintiff has to show that the defendant has done something wrong.
Balance of Probabilities
More like a scale, more like 51%. Balance needs to tip.
Beyond a Reasonable Doubt
Nothing else you can think of would make sense. Very certain, like 98%.
Burden of proof higher in criminal because...
Consequence are more severe.
Direct Examination of a Witness
When you question your witness.
Cross Examination of a Witness
When the opposition questions your witness.
Which examination of witnesses is friendly and which is adversary?
Direct is friendly and cross is adversary.
What is the rule on direct examinations?
Cannot ask leading questions.
Are cross-examiners allowed to ask leading questions?
Yes, good cross-examiners often do.
Monetary remedies can be for different reasons, including:
Law of Collections
Winning a judgement does not guarantee judgement debtor will pay. Winning party must enforce their judgement.
What is the interest rate on the Law of Collections?
Calculating the interest rate that is accurate for that year.
What is the costs collected under the Law of Collections?
Recovering legal costs, such as lawyer fees, court reporters, filing fees.
Do you recover full lawyer costs under the Law of Collections?
No, typically not.
When do you recover full costs under the Law of Collections?
Solicitor Client Costs.
When are Solicitor Client Costs enforced?
- When a party does something especially egregious.
- When a party challenges something in the interests of the public.
When would courts put costs on the winner, at the discretion of the judge?
When you charge someone with something carelessly. For example, they were negligent, but you charged them with an intentional tort.
When someone makes a reasonable offer of settlement, but the settlement is rejected. If they take it to the judge and the judge deems it was reasonable, the party that made the offer is awarded double costs.
What is the purpose of double costs?
Ups the ante, ensures that parties accept offers that are reasonable.
What are the two options to obtain information about assets after a lawsuit is settled?
- Can send them a form to ask them about their assets.
- Can subpoena them to ask them about their assets.
What is problematic about sending a form to ask the debtors about their assets?
They are never sent back.
What is problematic about subpoena the debtors about their assets?
You have to pay for their time.
Garnishment of Wages
Sending a letter to the employer to get them to pay the legal bills out of the debtor's paycheque.
Why can't you always get 100% of your settlement?
The court has rules to prevent this, as it can ruin the debtor's life.
Seizure of Property
Most often cars, but can also seize property such as condos or homes.
Are you allowed to seize the home and kick them out?
No, you have to wait for them to freely sell it. You put a lien on the house.
What kind of payment do people have to make, where not paying can ruin your life?
- Attachment orders.
- Security of cost.
When the winner doesn't think the loser will pay. Asking the courts to take away property, so that the transfer happens between the court and the winner of the lawsuit.
Security for Cost
Money for cost has to be put up front. Happens when someone is litigious, and has a tendency to lose and not pay.
Alternative Dispute Resolution
Avoid going to court. It is costly, time consuming, and harms relationships.
What are the 3 main methods of ADR?
Only the parties (or representatives) discuss the problem with each other in order to find a solution. Process requires cooperation and compromise. May be conducted through representatives. However, agreement may not be legal binding.
Neutral outsider helps party settle the dispute. Communication facilitated by mediator.
How is mediation different than negotiation?
Third party is involved facilitating a settlement.
Things that are said in mediation are privileged. They are not admissible in court.
Does a mediator make a decision?
___ is sometimes required before court will hear case.
Court may ___ mediated resolution.
Parties agree on an independent third party to make a binding decision.
Difference between arbitration and mediation:
- People are often not forced to go to arbitration, they agree to.
- Arbitration is binding.
Arbitration is often required in ___.
Arbitrators are specialists in...
The matter under dispute.
Can arbitration decisions be appealed?
The decision cannot be appealed, although procedure may be reviewed by the court.
Why is an arbitration so difficult to overturn?
Unlike a mediation where parties are required to partake, arbitrations are a voluntary process.
Advantages of the ADR process:
- Parties remain in control.
- Disputants determine and schedule resolution processes.
- Minimal costs associated with process.
- Matters remain private.
- Preserve good will.