Chapter 2.docx

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15 Apr 2012
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Chapter 2 Litigation and alternative dispute resolution
The litigation process
Who can sue and be sued?
All adults can use Canadian courts even if they are not Canadian citizens
A corporation can sue or be sued
Incorporated organizations like clubs & church groups cannot sue or be sued
o But individual members of the organization can be sued
Crown could be sued without its consent
Class actions
o Ex. on pg 30
o Class action allows a single person, or a small group of ppl to sue on behalf of a
larger group of claimants
Becoming common in Canada
Ex. on pg 30
o 7 provinces have legislation dealing with class actions
Common issues
Must be common issues amongst the various members of the class
Ex. on pg 31
Representative plaintiff
Plaintiff (claimant) must qualify as a representative plaintiff
Must demonstrate a workable plan for fairly representing the
interests of the class members
Notification
Rep plaintiff must also have a workable plan for notifying possible
class members
Class action notices can be seen in newspapers or magazines
Class action automatically includes every claimant who did not
opted out within a certain length of time
Every member of that class will be forced by the decision court
gives
Preferable procedure
The court must be convinced that a class action is the preferable
procedure for dealing with the claims
Court will consider whether a class action will become too
complicated and if there are enough similarities btwn the class
members
Certification
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It represents the court’s decision to allow the various claims to be
joined together and to proceed as a class action
Most imp step in the entire process
It shows that the court believes that there is a srs and genuine claim
to be considered
Legal representation
Self-representation
o U can represent urself, u can go to court and argue ur case b4 a judge
o Small claims courts encourage ppl to deal with some sorts of disputes by
themselves
Lawyers
o Advantages of hiring lawyer
It provides u with competent help and may increase ur likelihood of
success
Conversations with ur lawyer are confidential and privileged
o Lawyers have to be graduated from law school, complete apprentice period and
pass the bar by writing exams
o Law Society regulates the lawyer profession
Imposes codes of conduct and punishes members who act improperly
o Professional liability insurance allows you to receive compensation from the
lawyer’s insurance company in the case of negligence acts by your lawyer
o Assurance funds provides compensation to ppl who have been hurt by dishonest
lawyers
Paralegals
o Paralegal is a person who is not a lawyer but provides legal advice and services
o Common in small claims courts and landlord & tenant tribunals
o Anyone providing legal services have to go through the steps of becoming a
lawyer and being admitted to the bar
Paralegal who operates outside of that system may be prosecuted for
practicing law without a license
o Paralegals
Have not received formal training
Have not been regulated by a governing body
Have not been governed by a detailed code of conduct
Have not been required to carry liability insurance
o More on paralegal on pg 34
Pleadings
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Pleadings are the documents that are used to identify the issues and explain the nature of
a dispute
o Some prepared by the plaintiff (claimant) and others come from the defendant
Plaintiff is the person who is making the complaint
Defendant is the person whom the complaint is being made
Limitation period is a period of time within which an action must be started
General observations on limitation period
o Pg 34-35
Statement of claim is a document in which the plaintiff outlines the nature of the
complaint
o It states the facts that the plaintiff intends to rely upon and the solution that it
wants to receive
o Once this statement is received, the party must react quickly
o If defendant does nothing with the time period, plaintiff may go to court and
receive default judgment and defendant lose by default
Statement of defendant is a document in which the defendant sets out its version of the
facts and indicates how it intends to deny the claim
o Defendant may also include a counterclaim
o Counterclaim is a claim that the defendant makes against the plaintiff
Ex. on pg 35
Reply is a document in which a party responds to a statement of defence
o If plaintiff received counterclaim from defendant, it may use a statement of
defence to the counterclaim
Demand for particulars requires the other side to provide additional info
Pre-trial activity
Examinations for discovery is a process in which the parties ask each other questions in
order to obtain info about their case
o Ex. on pg 36
Settlement occurs when the parties agree to resolve their dispute out of court
o Ex. on pg 36
Pre-trial conference is a meeting that occurs btwn the parties and a judge
o After the parties outline their positions, the judge may indicate which of them is
likely to win if the case goes to trial
o The possible losing party might be willing to settle
Mediation is a process in which a neutral person called a mediator helps the parties reach
an agreement
o The Mandatory Mediation Program (MMP) in Ontario applies to most claims
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