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Global Management Studies
GMS 200
Ricardo Reyes

CHAPTER 2 Litigation (pg 29) • Litigation - dispute resolution in court • The risks o expensive o time consuming o unpredictable o frequently fatal to business relationships • Litigation is therefore rare. Who can sue and be sued? (pg 29) • Basically, a “legal person”, i.e. an adult, or a corporation. • Unincorporated organizations are not legal persons. Individual members must take responsibility. • The exceptional case of trade unions. • Traditionally difficult to sue government. Today, statutory authority is required. Class Action (pg 30) • Allows a single person, or small group to sue on behalf of a larger group of claimants. • Class Action Claims (pg 31) • Most provinces have legislation: o Issue must have commonality o Representative plaintiff will act in interests of all members o Notification o Preferable procedure to individual claims • Once Court is satisfied re the above, the action (lawsuit) will be certified. • Possible in other provinces (Western v. Dutton). Legal Representation (pg 32) • Self representation • Lawyer: o Required to complete training o Governed by provincial law societies o Must carry professional liability insurance o Communications are confidential and privileged • Paralegal: o Traditionally, no formal training, no mandatory code of conduct, and no assurance funds or mandatory insurance. o 2007 Reform in Ontario: training, code of conduct, liability insurance. o Still, confined to certain type of work and cannot work on a contingency fee basis. How a Lawsuit begins: Pleadings (pg 34) • Pleadings are the documents that identify the issues and clarify the dispute. • Initially, the plaintiff who begins the action prepares the statement of claim, files it with the court and serves it on the defendant. • The defendant then prepares a statement of defence, files it, and has it served on the plaintiff. Limitation Period • This is the period of time within which an action must be started. • Legislation has changed traditional limitation periods. • Most claims must be started within 2 years from day on which plaintiff discovered or should have discovered the cause of action. • Much shorter periods to sue municipalities or the Crown. • Late claim is generally unenforceable. • You should get to a lawyer quickly if you think you have a cause of action. • Statement of Claim: the plaintiff outlines dispute and states desired remedies. • Statement of Defence: the defendant denies facts or liability. o Counterclaim: if the defendant wants, may make claim against the plaintiff. The plaintiff will in turn issue a statement of defence to the counterclaim. • Reply: a response by the plaintiff to a statement of defence. • Demand for particulars: used by either party to demand additional information. Pre-Trial: Discovery Process (pg 36) • Discovery of principal witnesses and documents • Examination for discovery: conducted under oath before a court reporter. • Eliminates the surprise element we see on TV. • Reveals the strengths and weaknesses of claim. • Settlement often follows. • Pre-trial conference: judge meets with parties to summarize case • Mandatory mediation program (Ontario) • Settlement: parties avoid trial by agreeing to resolution Trial (pg 36) • In Canada, jury trials are not common for civil cases. If used, jury is confined to deciding issues of fact and the judge makes decisions on the law. • Evidence is heard from witnesses – ordinary or expert, and only in trial courts. • Rules of evidence ensure that unreliable evidence is excluded, e.g. hearsay evidence. • Burden of proof in civil cases is a “balance of probabilities”, unlike criminal cases where it is “beyond a reasonable doubt”. So you won: Remedy (pg 37) • Potential remedies: compensatory damages, punitive damages, nomin
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