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LAW 122 (614)
Chapter 2

ch. 2 -Litigation and Alternative Dispute Resolution .docx

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Ryerson University
Law and Business
LAW 122
Theresa Miedema

Chapter 2 - Litigation andAlternative Dispute Resolution The Litigation Process: Who Can Sue and Be Sued? Who has access to the courts in Ontario? Who can be sued in an Ontario court? • All adults, regardless of their citizenship. • Corporations, even if they are incorporated outside of Ontario. (Remember that the law treats corporations as legal persons for some purposes.) • Trade unions. • Special cases: o Children: children can sue and be sued, but a parent or litigation guardian must represent them. o Adults suffering from a mental incapacity (e.g., dementia orAlzheimer’s): they can sue and be sued, but a litigation guardian must represent them. - Unincorporated organizations: clubs, amateur teams, and community groups, are generally not recognized in law as “persons” so they can’t sue or be sued as an organization o If you want to sue a club, you must sue individual members of the club o If members of a club wish to pursue legal action against another party, they must bring their legal action as individuals – can’t sue in the name of the club or organization. o Trade unions are an important exception to this rule. - Legislation has now made it possible to sue the government under some circumstances - Plaintiff: the person who initiates a law suit - Defendant: the person being - Action: The law suit as a whole - Aclass action: allows a single person or a small group of people to bring a legal claim on behalf of a larger group of people o The class is the group of people on whose behalf the legal claim is brought; a class can range in size from very small (even just two people) to very large (thousands of people). o In Ontario, the Class Proceedings Act governs class actions o In order to bring a class action, a representative plaintiff must take steps to have the class certified – Certification: the Court has decided to allow the claims of the individual members of a proposed class to be joined together; o The Class Proceeding Act states that a judge will certify a class if requirements are met: • There is a “cause of action” (a legitimate claim recognized by the law). The representative plaintiff doesn’t have to prove his case during the certification phase, but must show that there is some basis in law and for the claim being made. • Members of the proposed class must have common issues - the claims of class members must involve similar (not necessarily identical) questions of fact or law. Ex. o The class members are all suing the same defendant in relation to the same product line or service or in relation to the defendant’s employment practices. o The class members all suffered the same sort of injury. o The class members suffered different injuries, but the injuries arose from the same incident. - Sometimes they have diff types of injuries, but their claims still have a lot in common with each other o The class might be certified with sub-classes that divide the class members into different sub-groups, based on the type of injury with its own rep. plaintiff - the facts of the representative plaintiff’s case must be typical of all the members of the class o Responsibilities of rep plaintiff:  Must have a workable plan for fairly representing the all members of the class  Must demonstrate that s/he has a workable plan to notify all potential members of the proposed class - People aren’t required to be part of a class action - they can sue the defendant on their own. o In Ontario, class actions are “opt-out”, people are deemed to be included in a class action unless they specifically opt-out – rep. should notify everyone they can opt-out • Aclass action must be the preferable procedure for addressing the various claims - if the members of the proposed claim don’t have enough in common or if joining the claims together would result in a complex proceeding, the judge may not find it appropriate - As with all legal class proceedings, someone has to pay for the costs of the action, including the lawyers’fees o Section 31(2) of the Class Proceedings Act – Rep. Plaintiff alone is liable for costs related to the action; other members of the class aren’t liable for the general costs of litigation. o Section 17(7) of the Act allows a Rep. Plaintiff to ask the court for an order that permits him or her to ask other members to contribute to the cost of lawyers’fees and disbursements. The Rep. isn’t entitled to any special form of compensation such as payment for the time and effort expended on bringing the class action. o The Class Proceedings Act also permits a lawyer to charge contingency fees in class actions - fees that are only payable if the case is successful The Litigation Process: Legal Representation 3 broad options for obtaining legal representation in the litigation process: 1) You can represent yourself 2) You can hire a paralegal 3) You can hire a lawyer - In Ontario, the Law Society of Upper Canada regulates both lawyers and paralegals o You must obtain certain credentials and meet certain requirements in order to be licensed to practise as either a lawyer or a paralegal o The licensing process is ensures that lawyers and paralegals are competent and remain competent. o Clients can sue their lawyers and paralegals for carelessness (negligence) and for intentional wrongdoing  The lawyer or paralegal may not have enough money to compensate the client.  There are mechanisms in place to protect clients  Lawyers and paralegals in Ontario are required to hold professional liability insurance - provides compensation to clients who have suffered losses as a result of a lawyer’s or a paralegal’s carelessness  The Law Society maintains an Assurance Fund to compensate people who have suffered losses as a result of a lawyer’s or a paralegal’s dishonest conduct. The Litigation Process: An Overview of the Life of a LegalAction The basic steps in a legal action: Cause of Action occurs. • Action must be commenced within applicable limitation period - time you have to start an action, take too long action can be initiated Pleadings • The parties exchange various filings that outline the issues that they will raise at trial and the facts upon which they will rely. - if not in pleading can’t bring it up in court - limited time - wait too long, plaintiff a can move to default judgement Pre-trialActivity • Parties have the opportunity to "discover" each other's case through the exchange of documents and pre-trial examination of witnesses, which occurs under oath. Discovery gives the parties an opportunity to evaluate the relative strength of the other party's case and to gauge how much the claim is really worth. • Parties have a pre-trial conference in which they meet with a judge. The judge may give the parties a frank assessment of which side is likely to win if the case goes to trial. This gives the potential losing party more incentive to settle. • In some cases, there is court-mandated mediation. Determination of Claim • The parties either settle or the case goes to trial. The vast majority of cases settle before trial. • If the case goes to trial, the plaintiff must prove its case on a balance of probabilities - every impt part of the plaintiff's claim must be shown to be more likely true than not. (The claim must be probably true.) • At trial, the defendant is found either liable (and responsible) or not liable. If the defendant is held liable, the plaintiff will be awarded a remedy. The most common remedy is compensatory damages. Enforcing the Judgment • If the plaintiff wins an award of damages, the defendant becomes a judgment debtor. The plaintiff now has the difficult task of getting its money from the defendant. Appeals • In some cases, a party may appeal all or part of a judgment. This means that the party (called an appellant) asks a higher court to review the case and to decide if the judge made the correct legal decision. Appeals are very different from trials. In civil litigation, the clock is always ticking. There are rules that require that claims be made and that various pleadings are filed in a timely way. - Limitation Periods: the period of time within which an action must be started o Legal claims must be made within a certain period of time or the court will not allow the claim to proceed o Time periods are governed by statute, can range from six days (if you want to sue a city in tort) to 21 years (if you want to assert certain property rights). o In Ontario, cases involving torts or breach of contract, common limitation period is two years from the date on which the plaintiff should have become aware that s/he had a claim against the defendant. o If the plaintiff misses the limitation period, she still has a claim, but can’t enforce that claim through the courts unless there are very special circumstances.  Practical perspective - the plaintiff likely won’t be able to get a remedy.  Special exception applies to debts – if a debtor acknowledges a debt after the limitation period expires, the creditor may bring an action to recover the outstanding monies even though the limitation period has passed. - Pleadings: There are strict limits on the time that each party has to respond to the other’s pleadings. o The failure to file your pleadings in response to the other party’s pleadings could have disastrous results o Ex. if a defendant doesn’t file a Statement of Defence on time, the plaintiff can move for a default judgment in favour of the plaintiff  The failure to file the Statement of Defence on time is interpreted as meaning that the defendant accepts all of the plaintiff’s allegations in the Statement of Claim, including the allegation that the defendant is liable! o If you are served with a statement of claim or other form of pleading, you should immediately contact your lawyer. Don’t wait. There are serious consequences to missing filing deadlines. The Litigation Process: Remedies and Enforcing Judgment - If the plaintiff wins its case at trial, the plaintiff will be entitled to a remedy - In civil litigation, the most common remedy is compensatory damages - Other remedies: Remedy Description Example Compensatory damages Pay the plaintiff money to compensate Provide an injured plaintiff with the for the plaintiff’s loss amount he lost as a result of not being able to work and the amount spent on medical bills Punitive damages Pay the plaintiff money as a means of Punish an insurance company that made punishing the defendant for acting very up allegations of arson in order to avoid badly paying a benefit under an insurance policy Nominal damages Pay the plaintiff a very small amount Recognize the right of a store that sued for of money (e.g., $1) to recognize trespass even though the unwanted symbolically that the defendant acted customer did not do any harm wrongfully even though the plaintiff did not suffer any loss Specific performance Order the defendant to fulfill a Force a defendant who promised to sell a contractual promise piece of land to the plaintiff to go through ***equitable remedy with the sale Injunction Require the defendant to act in a Force the defendant to stop cutting certain way (e.g., to do something or to through the plaintiff’s backyard or force a stop doing something) construction company to remove its ***equitable remedy equipment from a neighbour’s property Rescission Terminate a contract Eliminate a contract that was created by a con artist who tricked an elderly couple ***equitable remedy into signing - When a defendant is found liable and ordered to pay damages, the defendant becomes a judgment debtor (b/c the defendant owes the plaintiff a debt pursuant to a judgment) o If a judgment debtor doesn’t pay, the plaintiff has a few options o Ex. the plaintiff can garnish the judgment debtor’s income by getting a court order that requires the debtor’s
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