Textbook Notes (369,074)
Canada (162,369)
LAW 122 (625)
Chapter 2

Chapter 2

6 Pages
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Department
Law and Business
Course Code
LAW 122
Professor
Avi Weisman

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Monday September 19 , 2011 Chapter 2 Litigation & Alternative Dispute Resolution The Litigation Process -Litigation  is the system of resolving disputes in court -Risks of litigation:  expensive  time consuming  unpredictable  frequently fatal to business relationships -Litigation is rare  very few cases are decided by judges in court  Most disputes are settled out of court; we rarely hear about those details  Fewer than 1% of private disputes are decided by judges Who Can Sue? -General Rule: Any person or corporation can sue or be sued -person who lacks legal capacity can sue or be sued but must act through a representative  Example: child or adult with mental disability) -statutory authority required to sue government -a corporation is a type of a person  A company may therefore sue or be sued -unincorporated organizations such as clubs and church groups are not classified as a legal person  Normally cannot sue or be sued Class Actions: -Purpose: multiple claims against single defendant joined together in one action -suing on behalf of large group of claimants; allows small individuals to take on large organizations -small claimants able to share costs of litigation against large defendant  Example: product liability, mass torts, workplace discrimination -a company may not worry about thousands of claims worth a few dollars each, but it will worry about a single claim worth $50 million -class actions are becoming increasingly common in Canada  Primary attraction: they allow small individuals to take on a large organization -class action requirements: 1. Common Issues:  must be common issues amongst the various members of the class  Example: there may be a women who received defective breast implants from the same manufacturer as another women, not necessary every claim is to be identical 2. Representative Plaintiff:  he/she must demonstrate a workable plan for fairly representing the interests of the class member  Example: this situation will not be true; the plaintiff wants the court to rely on a rule that will help some circumstances that affect some claim acts Monday September 19 , 2011 3. Notification:  must have plan for notifying potential class members as members of that class are bound by the decision  it is not unusual for instance to see class action notices in newspapers or magazines 4. Preferable Procedure:  class action is the preferable way of dealing with the claims  considers whether a class action will become too complicated and whether there are enough similarities between the class members 5. Certification:  court’s decision to allow the class action to proceed (allows the claims to be joined together as a class action)  most important step in the entire process as a class  it demonstrates that the courts believes that there is a serious and genius claims to be considered Legal Representation: -if you have been sued or want to sue it is important that you make a decision regarding legal representation, who will argue for your side? -question raises an important risk management issue 1. Self Representation:  right to represent yourself  usually advisable only in simple matters  it is expensive to hire a lawyer however, it may be far expensive to lose a lawsuit in the long because due to the lack of experience  you can go to the court and argue your case before the judge without being a lawyer 2. Lawyers:  required to have graduated from Law School, articled, passed bar  Law Society regulates the profession  Law Society establishes and applies Codes of Conduct and investigates/punishes misconduct  Punishes people who do not act responsibly  Other advantages: lawyers must carry professional liability insurance  If your lawyer acts careless and you suffered a loss, you may sue for professional negligence  communications are confidential and privileged  there are a number of advantages of hiring a lawyer:  Example: conversation with your lawyer generally confidential and privileged meaning that your lawyer cannot share your information with anyone without your consent  Law societies also provide assurance funs which provides compensation to people who have been hurt by dishonest lawyers 3. Paralegals – not a lawyer but provides legal services  Since 2007, Law Society of Upper Canada has licensed paralegals in Ontario  Now Paralegals must:  train at an approved institution  complete examinations just as lawyers need to write the Bars  abide by a Code of Conduct (punishable by misconduct)  carry liability insurance Monday September 19 , 2011  Restrictions on paralegals:  confined to certain types of work, e.g. representation in Small Claims Court, administrative tribunals  cannot work on a contingency fee basis  paralegals are common in small claim courts, land lords and tenant tribunals  vast majority are knowledgeable, professional, honest paralegals remain somewhat controversial Pleadings: -The documents that are used to identify the issues and clarify nature of dispute -Needs to be drafted by party, issued by court, served on party -Plaintiff = person making complaint -Defendant = person about whom complaint is made -Need to start pleadings process promptly; limitation periods!  Limitation period is a period of time within which an action must be started -Limitation Periods because:  after time evidence gets lost/ becomes murky  can’t hold the threat of litigation over someone forever -Lawsuit starts w:  Statement of Claim  A document in which the plaintiff outlines the nature of the complaint, it states facts that the plaintiff intends to rely upon and the remedy it wants to receive  Statement of Defense – denies the facts or any liability  Document in which the defendant sets out its version of the facts and indicates how it intends to dent the claim  Counterclaim  claim that the defendant makes against plaintiff o Example: if the plaintiff sues for the price of goods that it delivered to the defendant, the defendant may believe that those goods are
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