Lecture 3 (Keller)

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Management and Organizational Studies
Management and Organizational Studies 2275A/B
Cristin Keller

Chapter 3: Civil and Criminal Proceedings • Generally, courts are open to the public to ensure that justice is seen to be done, But publication bans and in camera (closed) hearings are possible • One incident may result in both criminal and civil trial proceedings - with the accused being charged and sued Notes: - Criminal cases are disoutes between government and the accused o Public law o Looking at criminal code which is federal legislation  Constitution act of 1857 allows federal government to control criminal law - Civil cases are beteen people and business but government is not ivolved o Example: Sueing another person o Civil cases usuall deal with compensation (money) or an equitable remedy (an apoloy) Criminal Function • In a criminal case, the “Crown” prosecutes the “accused” • The accused is convicted only when the Crown proves the case “beyond a reasonable doubt” – (“burden of proof”) – Jury has to come to the conclusion that there is no reasonable doubt that that person is not guilty – If there is reasonable doubt, you have to find not guilty • Victims are usually not compensated for their injuries or loss (but sometimes restitution of property may be ordered) Courts of Appeal of the Provinces - Hears appeals from lower courts • Not a new trial But sometimes a trial de novo prescribed by legislation • If Error of law not fact occurred then it will be appealed and the appeal court will review it • Total failure of evidence may be an error of law • Leave (permission) to appeal may be required (S.C.C.) – If you don’t like decision made at court of appeal or province • A panel of judges hears appeals • The appeal court will – Review the transcript of the trial – Review the trial judge’s reasons for decision – Hear verbal arguments – Review written arguments • Federal cases can appeal to the federal court of appeal Notes: - Lowest level are provincial courts o Jurisdiction over less serious matters - Small claims courts deal with matters ranging from 20,000 to 25,000 dollars - Highest trial level of provincial court is superior court o Deals with serious criminal matters - Judge and Jury o Judge makes findings of law o Jury makes findings of fact - Sentencing circles: not courts, just people talking in a circle about outcome o Most often used with aboriginal folk Civil Function • Individuals or organizations ask the court to adjudicate a dispute • Court's decision is based on “balance of probabilities” – (“burden of proof”) • Court assesses liability and renders judgment • Compensation awarded to the “plaintiff” and remedies for plaintiff imposed on “defendant” Notes: - Plaintiff is those that are accusing o Submits amount that they want (suing) - Defendant is that who is being accused - Balance of probabilities = have to prove that it is more likely than not (more than 50%) o As opposed to criminal function where if you have any doubt then you are not guilty Recent Developments • Drug treatment courts • Domestic violence courts • Mental health courts • Nunavut Court of Justice • Sentencing circles Notes: - More specialized courts are opening!! Yay. Limitation Periods • A time limitation after an event occurs to bring a court action based on the event • Six years to two years? - ask Jurisdiction (what court should hear this case?) • Which province or territory? – Where defendant resides or incident occurred • Internet largely borderless – Interaction with a resident of province’s court • Choice of law and court provision in a contract • Some courts have restrictions on the types of cases they may hear – Monetary limit – Wills and Estates – Injunctive relief – Bankruptcy Pre-Trial Procedures • “Pleadings” (purpose is to state claims giving to rise of dispute) – Some provinces: Writ of summons (plaintiff) – Some provinces: Appearance (defendant) – Statement of Claim (issued by plaintiff) / Statement of Defence (issued by defendant) – Counterclaim / Defence to Counterclaim (refer to chart) • Chambers (Interlocutory) Applications • Discovery 1. Of documents / records • Each party can analyse the others documents/evidence 2. Verbal examination of witnesses • Ask questions under oath • Payment into court (formal offer to settle) • Purposes of Pre-trial Proceedings – To focus dispute – To discover weaknesses / strengths of opposing parties’ case and your own – Facilitate settlement before trial • Summary trials and expedited actions • Offer to settle – Meet before courts and offers amount to settle the case The Trial • Plaintiff presents case – “Onus of proof” rests with plaintiff • Plaintiff has to prove that it is more likely than not that the defendant is liable • Defendant presents case – Direct examination by plaintiff (no leading questions from plaintiffs lawyer) – Cross examination by defendant (more leeway in questions asked but plaintiffs lawyer can object to any unfair questions) • Trier of Fact: Jury decides on the facts, if there is a civil jury – Facts are what happened in the story – Law is what has to be applied based on facts • Trier of Law: Judge determines the law (jury determines the facts) • Joint Trier of Fact and Law: Judge sitting alone Costs – granted by court to winning party to cover costs such as time lost at work, court costs etc… • Usually awarded to the victor • Always at the discretion of the court • Party and party costs – Also called taxable costs – Only a portion of actual costs – Awarded to victorious part • Solicitor and own client costs – Judge makes losing party pay for other parties expenses • If losing party – Your own full legal bill, and All or part of the other party’s legal bill Remedies • Damages (monetary compensation- common law) • 4 types: – Liquidated • Seen in contract law • If someone breaches the contract then one owes the other money – General • Future estimates of law (ex. because of what defendant did I might be able to work as long as I could have so give me five years of working pay) – Special • Specific damages (things you could show a receipt for) • Exoenses or costs during trial – Punitive • Extra punishment based on incidence • Some other remedies – Accounting (paying someone for your wrongdoing), injunction (stopping conduct and making someone act the right way), specific performance, declaration (equitable remedies) Notes: -
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