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Midterm

GMS 200 Study Guide - Midterm Guide: Professional Liability Insurance, Liability Insurance, Counterclaim


Department
Global Management Studies
Course Code
GMS 200
Professor
Ricardo Reyes
Study Guide
Midterm

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CHAPTER 2
Litigation (pg 29)
Litigation - dispute resolution in court
The risks
oexpensive
otime consuming
ounpredictable
ofrequently 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:
oIssue must have commonality
oRepresentative plaintiff will act in interests of all members
oNotification
oPreferable 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:
oRequired to complete training
oGoverned by provincial law societies
oMust carry professional liability insurance
oCommunications are confidential and privileged
Paralegal:
oTraditionally, no formal training, no mandatory code of conduct, and no assurance funds
or mandatory insurance.
o2007 Reform in Ontario: training, code of conduct, liability insurance.
oStill, confined to certain type of work and cannot work on a contingency fee basis.
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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.
oCounterclaim: 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”.
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