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Chapter 2

Chapter 2 - Litigation and alternative dispute resolution

Law and Business
Course Code
LAW 122
Theresa Miedema

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Chapter 2
Litigation: the system of resolving disputes in court
orisks of litigation
time consuming
frequently fatal to business relationships
olitigation is rare very few cases are decided by judges in court
Who can sue and be sued?
ohuman beings
general rule: any person can sue or be sued, Canadian citizen or not
*person who lacks legal capacity can sue or be sued but must act through a
child (litigation guardian)
adult with mental disability (court-appointed representative)
a type of legal person generally can sue or be sued
some restrictions on foreign corporations
unincorporated association
not a type of legal person generally cannot sue or be sued
exception in some provinces: trade unions generally can sue and be sued

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general rule: The King can do no wrong
statutory authority required to sue government
statutes are broad but often complicated (must be read careful)
Class Actions: allows a single person, or a small group of people, to sue on behalf of a
larger group of claimants
omultiple claims against single defendant joined together in one action
osmall claimants able to share costs of litigation against large defendant
Common issues: there must be common issues amongst the various members of
the act
Representative plaintiff: He or she must demonstrate a workable plan for fairly
representing the interest of the class members
Notification: A representative plaintiff must also have a workable plan for
notifying potential class members. (i.e: newspapers or magazines)
Preferable procedure: the court must be convinced that a class action is the
preferable procedure for dealing with the claims.
Certification: represents the courts decision to allow the various claims to be
joined together into a class action (most important step)
Legal representation (who will argue your side?)
lawyers are required to complete training
governed by provincial law societies
establish and apply Codes of Conduct
investigate and punish misconduct
administer assurance funds for victims of misconduct

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communications are confidential and privileged
Law societies require every lawyer to hold a professional liability insurance
This insurance allows you to receive compensation from the lawyers
insurance company (incase the lawyer doesnt have enough money to pay
for that loss)
Assurance funds: provides compensation to people who have been hurt by
dishonest lawyers
oParalegals: a person who is not a lawyer, but who provides legal advice and services
usually very knowledgeable in specialized areas
generally less expensive
often more accessible
traditionally no formal training requirements
traditionally not regulated by a governing body
traditionally no mandatory codes of conduct
traditionally have not been required to carry liability insurance
Pleading: the documents that are used to identify the issues and clarify the nature of a
dispute (drafted by party, issued by court, served on opposing party)
oPlaintiff (): is the person who is making the complaint
Statement of claim: used by plaintiff to start claim document in which the
plaintiff outlines the nature of the complaint
Statement of defense to counterclaim: denial of facts or liability in counterclaim
oDefendant(): the person about whom the complaint is being made
Statement of defense: a document in which the defendant sets out its version of
the facts and indicates how it intends to deny the claim
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