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LAW 122 (625)
Chapter 2

Chapter 2 Litigation and Alternative Dispute Resolution.doc

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Law and Business
LAW 122
Theresa Miedema

Chapter 2 Litigation and Alternative Dispute Resolution law 122 Litigation: the system of resolving disputes in court Business people realize that litigation is a poor way to settle a dispute Expensive, unpredictable, fatal to business relationships THE LITIGATION PROCESS (PG29) Who can sue and be sued? • A company is a type of person and is liable to be sued • Churches, clubs, unincorporated organizations are not able to be sued but individuals members can be sued. • Trade unions can be sued • Children can be sued through a litigation guardian, negligence, contractual capacity Class actions (PG 30) • Class actions allow a single person or a small group of people to sue on behalf of a larger group of claimants. • They allow small individuals to take on large organizations • Class actions may save society money Class actions main issues • Common issues- must be a common/similar not identical issue among members of the class • Representative plaintiff- must be able to show a workable plan • Notification- a representative plaintiff must also have a workable plan for notifying potential class members • Preferable procedure- the court must be convinced that a class action is the preferable procedure for dealing with the claim • Certification-represents the courts decision to allow the various claims to be joined together and precede as class actions LEGAL REPRESENTATION (PG 32) Self-Representation- • Have the right to represent yourself • Small claims court people resolve disputes themselves Lawyers 1 • Does not guarantee success but does increase likelihood of success Professional liability insurance-allows a client to receive compensation from the lawyers insurance company if the lawyer has acts carelessly Assurance fund provides people compensation to people who are hurt by dishonest lawyers PARALEGALS • A person who is not a lawyer but provides legal advice and services • small claims court or tenant and landlord tribunals • paralegals do not: o always have a formal legal education o are not regulated and controlled by a governing body like a law society o not subjected to mandatory codes of conduct o not required to carry liability insurance PLEADINGS (PG 34) • the documents that are used to identify the issues and clarity the nature of a dispute • some prepared by plaintiff- who makes to complaint, defendant who defending • Limitation period- a period of time within which an action must be started • Law suit requires a STATEMENT OF CLAIM- document where plaintiff outlines the nature of the complaint, call lawyer Right away • Statement of defense is a statement that the defendant has to give in order to make clear that they deny the claim and that it is false; can go to jail if a statement of defense is not made, lose the case without a word being said. • Counter-claim- claim that the defendant makes against the defendant • Reply- a document in which a party responds to a statement of defense • Demand for Particulars- requires other side to provide additional information • Must include all legal arguments and facts PRE-TRIAL ACTIVITY (PG 36) • Examinations for discovery- process in which the parties ask each other questions in order to obtain information about their case • Court time expensive and difficult to schedule • Settlement- occurs of both parties agree to settle dispute out of court • Pre-trial conference- is a meeting that occurs between the parties and a judge • Mediation- is a process which a neutral person is called a mediator helps the parties reach an agreement. 2 THE TRIAL • Evidence- consists of the information that is provided in support of an argument • Each side will provide witnesses ordinary witnesses testify about facts that they know first hand ( eg may describe a car accident that they saw) …. Expert witnesses provide information and opinions based on evidence ( eg physician etc) • Court wants direct evidence now hearsay evidence- is information that a witness heard from someone else rather than directly from the source… it cannot be tested in court • The plaintiff has to prove its claim on a balance of probabilities which is that every part of the claim must be probably true. • Liable or not Liable • Losing party pays cost (cost rewards are between 40-50%) THE REMEDY • Various punishments such as fine or imprisonment sentences or conditional sentences which allow criminals to serve time in their own house • Types of remedies • Compensatory damages- financially compensate the plaintiff for a loss • Punitive Damages- punish the defendant for acting very badly • Nominal Damages- symbolically recognize that the defendant acted wrongfully, even though the plaintiff did not suffer any loss • Specific performance - requires the defendant to fulfill a promise • Injunction- requires the defendant to act in a particular way • Rescission – terminates a contract ENFORCEMENT • Judgment debtor- is a defendant who has been found liable and ordered to pay money to the plaintiff. • Judgment debtor exam- the judgment debtor discloses are assets • Garnish wages- judgment debtor skims % of wage or over a period that is paid to the courts then pays you • Seizure and sell Assets- take assets and hold an auction and gives money to plaintiff, 1 restriction can’t take assets that they use to make a living APPEALS • Can appeal to higher court which is an Appeal Court (appellate court) decide whether a mistake was made in the court below? • Appellant – Is the party who attacks the decision of the lower court • Respondent- is the party who defends the decision of the lower court 3 Differences between trials and appellate courts one judge at a trial and 3 judges at a appeal court. Appellate do not listens to witnesses or receive evidence, hear arguments from the lawyers • Appellate courts majority rules • An appellate judge who disagrees with the majority is entitled to write a separate judgment called a dissent • Dissent- often calls attention to some weakness in the majority’s decision, and since law is evolving today’s Dissent may become tomorrow’s law Costs • Are the expenses that a party incurred during litigation • Substantial difference between court costs and actual costs • Can pay costs on a party to party basis • Can also pay on a Solicitor and client basis Contingency Fees • Requires client to pay its lawyer only if the lawsuit is successful • Can cut both ways as the client has to pay more if the case is won • Lawyer can keep 25-40% of everything that is won THE COURT SYSTEM (PG 40) The supreme court of Canada • Highest court in the country • Nine members chief justice and 8 others puisne judges • All appointed by federal government • Agrees to hear an appeal only if the case raises an issue of national importance • Appeals heard by 5.7 or 9 judges (justices) Court of appeal • Heard usually by three justices Superior court • Main point is to hear trials • Occasionally hear appeals from lower courts • Allowed to get injunction Federal courts 4 • Federal gov appoints the members of 3 specialized courts that deal only with cases that affect the federal gov • Tax court, • Trial division of fed court – hears issues based on copyright bills of exchange and telecommunications • Appeal division of the federal court Provincial courts four types of cases 1. small claims private disputes involving small amounts of money 2. family matters such as support payments 3. youth matters young offenders and neglected children 4. most criminal cases Small claim courts • type of provincial court that deals with disputes involving limited amounts of money • no equitable jurisdiction, cannot award injunctions Certain drawbacks 1. Geographical limits: decision has to be made in region where incident occurred 2. types of claims: limited amount of money or the return of property 3. Types of remedies: small claim courts are limited to ordering the payment of money 4. Monetary limits: court can only hear small claims max 25 000 in Ontario COURT HIEARCHY (PG45) Federal court of appeal – only covers section 91 of charter not bigger than superior court SCC-Court of Ontario-superior c
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