Chapter 2 Litigation and Alternative Dispute Resolution

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25 Apr 2012
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Chapter 2: Litigation and Alternative Dispute Resolution
Litigation: is the system of resolving disputes in court
Who can Sue and Not Sue: A general rule is that all adults are free to use the Canadian courts even if
they are a foreigner. Mental disabled and children may be represented by a court representative.
Class Action: allows a single person, or a small group of people, to sue on behalf of a larger group of
claimants therefore letting small individuals take on large organizations.
Must have:
Common Issues: there must be a common issue amongst the various members of the class
Representative Plaintiff: the plaintiff must qualify as a representative plaintiff that demonstrates
a workable plan for fairly representing the interest of the class members.
Notification: a representative plaintiff must have a workable plan for notifying the potential
class members. A class action automatically includes every claimant who has not opted out with
a certain period of time. And every member of that class is bound by the decision that the court
give at the end of trial. People who have not opted out cannot bring separate actions on their
own.
Preferable Procedure: the court must be convinced that class action is the preferable procedure
because they will become too complicated and has to determine where there are enough
similarities between the class and members.
Certification: represents the court’s decision to allow the various claims to be joined together
into a class action
Legal Representation
1: Self Representation
-you can go to court and argue your case before a judge even if you are not a lawyer
Small Claim Courts: encourages people to deal with some sort of disputes by themselves
2: Lawyers
-you may hire someone to represent yourself in court, a lawyer
-a person cannot act a lawyer until they have graduated from law school, completed an apprentice
period known as a period of articles, and passed the bar by successfully writing a number of exams.
Law Society: a body that regulates the profession, it imposes codes of conducts and punishes members
who act improperly
Professional Liability Insurance: allows a client to receive compensation from the lawyer’s insurance
company if the lawyer has acted carelessly (Law Society requires)
Assurance Fund: law societies create assurance funds to provides compensation to people who are hurt
by dishonest lawyers
-conversations with your lawyers are confidential and privileged which means that your lawyers cannot
share your information with anyone without your consent and cannot be used against you in court
3: Paralegals
Paralegal: is a person who is not a lawyer, but who provides legal advice and services (common in small
claim courts and landlord/tenant tribunals)
- Law Society has licensed paralegals in Ontario in 2007 therefore they have to hold a law degree,
trained at an approved institution, must successfully complete examinations, must abide by the Code of
Conduct (allows Law society to punish wrong doers), and carry liability insurance
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Differences: Paralegals may appear in administrative tribunals, the small claims court, and the Ontario
Court of Justice under the Provincial Offense act, some criminal cases where maximum penalty is 6
months in jail, and draft documents related to those cases. They CANNOT appear in other types of cases,
nor can they provide services such as real estate or drafting wills, or work on contingency fees and more.
Pleadings
Note: Important to start the pleasing process promptly because of limitation periods
Pleadings: the documents that are used to identify the issues and clarify the nature of the dispute. Some
are prepared by the plaintiff and some are prepared by 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
Canadian limitation statue states that most claims must be started within two years from the
day on which the plaintiff discovered, or should have discovered the cause of action.
Period may vary considerably; sometimes it is very necessary to act very quickly. It is harsh that
the passage of time can prevent the enforcement of an otherwise valid claim.
Limitation Period Reasons:
1: after a time, memories fade and evidence is lost; the courts do not want to resolve disputes
on the basis of unreliable information
2: it would be unfair to allow the plaintiff to hold the threat of litigation over the defendant
forever
Note: Lawsuit starts with a statement of claim
Statement of Claim: is a document in which the plaintiff outlines the nature of the complaint. Like all
pleadings, it must be issued by the court and served to the other party. Once the other party is served, it
must react quickly.
-If the defendant does not respond by the relevant period (1 month), the plaintiff may go to court alone
and receive a default judgment (defendant lose by default)
Statement of Defense: a document in which the defendant sets out its version of the facts and indicates
who it intends to deny the claim
Counterclaim: is a claim that the defendant makes against the plaintiff
Reply: document in which a party responds to a statement of defense (the plaintiff is entitled to
respond to the defendant’s pleadings)
Demand for Particulars: requires the other side to provide additional information
Pre-Trial Activity
Note: case does not normally go to court immediately after the pleadings have closed. Parties will first
conduct examination for discovery
Examination for Discovery: is a process in which the parties ask each other questions in order to obtain
information about their case (using outside sources). By revealing strengths and weakness of a claim,
they may indicate which side is likely to lose if case goes to trial.
Note: Discoveries encourage settlement
Settlement: occurs when the parties agree to resolve their dispute out of courts
Pre-Trial Conference: is a meeting that occurs between the parties and a judge. After the parties outline
their positions, the judge may indicate which of them is likely to win if the case goes to trial
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