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LAW 122 (646)
Chapter 2

Chapter 2 - Litigation and alternative dispute resolution

12 Pages
120 Views
Summer 2011

Department
Law and Business
Course Code
LAW 122
Professor
Theresa Miedema
Chapter
2

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Chapter 2
THE LITIGATION PROCESS
Litigation: the system of resolving disputes in court
orisks of litigation
expensive
time consuming
unpredictable
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
representative
child (litigation guardian)
adult with mental disability (court-appointed representative)
oOrganizations
corporation
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
ogovernments
www.notesolution.com
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
oRequirements
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?)
oSelf-representation
oLawyers
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
www.notesolution.com
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
advantages
usually very knowledgeable in specialized areas
generally less expensive
often more accessible
disadvantages
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
www.notesolution.com

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Description
Chapter 2 THE LITIGATION PROCESS Litigation: the system of resolving disputes in court o risks of litigation expensive time consuming unpredictable frequently fatal to business relationships o litigation is rare very few cases are decided by judges in court Who can sue and be sued? o human 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 representative child (litigation guardian) adult with mental disability (court-appointed representative) o Organizations corporation 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 o governments www.notesolution.com 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 o multiple claims against single defendant joined together in one action o small claimants able to share costs of litigation against large defendant o Requirements 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?) o Self-representation o Lawyers 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 www.notesolution.com
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