Class Notes (838,095)
Canada (510,678)
MGSC30H3 (54)
Jeff Rybak (18)

Ch 2.docx

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Management (MGS)
Jeff Rybak

Ch 2: Litigation and Alternative Dispute Resolution  Litigation- system of resolving disputes in court. The Litigation Process WHO CAN SUE AND BE SUED? Class Actions- allows a single person, or a small group of people, to sue on behalf of a larger croup of claimants The Basics must be the same:  Common issues among various members of class with a few exception  Representative plaintiff must demonstrate a workable plan for fairly representing the interests of the class members.  Notification must have a workable plan to notify all potential class members (i.e. newspaper) o Decisions are made for those who don’t express opting out cannot bring separate actions on their own.  Preferable procedure whether it is acceptable by court o Whether class action will become too complicated, enough similarities between class members.  Certification actions must be certified o Represent the court’s decisions to allow the various claims to be joined together and to proceed as a class action. LEGAL REPRESENTATION  Self-representation small claims courts have been set up to encourage people to deal with some sorts of disputes by themselves.  Lawyerspart of Law Society , who impose codes of conduct and punishes members who act improperly (fined, suspended, or disbarred) o Required to hold:  Professional Liability Insurance- allows a client to receive compensation from the lawyer’s insurance company if the lawyer has acted carelessly o Assurance fund- provides compensation to people who are hurt by dishonest lawyers.  Paralegal- a person who is not a lawyer, but who provides legal advice and services o Common use in small claim courts and landlord and tenant tribunals administrative tribunals and some criminal cases with a max jailed time of 6 months o Cannot draft wills or handle real estate transactions or estates o Cannot work on a contingency fee basis PLEADINGS- the documents that are used to identify the issues and clarify the nature of a dispute  Some are prepared by o Plaintiff- a person who is making the complaint o Or defendant- a person about whom the complaint is being made  Limitation period- a period of time within which an action must be started.  Statement of Claim- a document in which the plaintiff outlines the nature of the complaint  Defendant must act quickly within a month or else the plaintiff will win by default  Statement of defence- a document in which the defendant sets out its version of the facts and indicates how it intended to deny the claim  Counterclaim- a claim that the defendant makes against the plaintiff  Reply- a document in which a party responds to a statement of defence  Demand for particulars- requires the other side to provide additional information PRE-TRIAL ACITIVITY  Conduct before going to court: o Examination for discovery- a process in which the parties ask each other questions in order to obtain information about their case  Conducted under oath and the answers can be used as evidence o Discoveries encourage settlements:  Settlement- occurs when the parties agree to resolve their dispute out of court  More than 95% of claims are settled outside of court  Pre-trial conference- a meeting that occurs between the parties and a judge. o The judge could indicate who might loose, encouraging settlements could be called upon by anyone  Mediation- a process in which a neutral person- called a mediator- helps the parties reach an agreement. o Must occur within 90 days after the defence has been filed. THE TRIAL  Crime appear before a jury  Civil litigation decided by a judge alone  Court will hear first from the plaintiff and then defendant  Evidence- consists of the information that is provided in support of an argument  Ordinary witness testify about facts that they know first-hand  Expert witnesses provide info and opinions based on evidence  Examination-in-chief process when a party calls upon a witness to ask questions and to receive answer  Cross-examine after examination-in-chief  Adversarial system present own version of events and attack one another. The truth lies in the middle  Evidence must be admissible want direct evidence not hearsay evidence  Hearsay Evidence- information that a witness heard from another person, rather than directly from the source.  Must prove claim on the balance of probabilities probably true o Tip more in favour for plaintiff defendant is liable o For defendant not liable o If the case has to be proved beyond a reasonable doubt then:  Guilty or not guilty THE REMEDY ENFORCEMENT  Judgement Debtor- a defendant who has been found liable and ordered to pay money to plaintiff  To enforce this garnishee a judgement debtor’s income, seize and sell their assets help from public authorities APPEALS  Appeal court (appellate court)- decides whether a mistake was made in the court below.  Appellant- the party who attacks the decision of the lower court  Respondent- the party who defends the decision of the lower court  Appeal should start within 30 days after the trial court gave its decision  Trial vs. Appeal o Trials have 1 judge; appeal is heard by 3 judges or more odd number for voting (majority rules) o Appeal court does not listen to witnesses or receive evidence hear and read arguments o Appeal court deals with law not facts only overturn a fact if trial judge made a palpable and overriding error.  Appeal court could affirms, reverse lower court decision, vary some parts, or call for a re-trial if not enough info.  Dis
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