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LAW 122 (599)
Chapter 2

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Ryerson University
Law and Business
LAW 122
Theresa Miedema

Managing the Law: The Legal Aspects of Doing Business Chapter 2: Litigation and Alternative Dispute Resolution The Litigation Process: Who can be Sue and be Sued? Who has access to courts in Ontario and who can be sued in the Ontario courts? All Adults o citizens or not Corporations o even if they are incorporated outside of Canada o Note: law treats corporations as legal persons for some purposes Trade unions Special cases: o Children: can be sued and sue if they are represented by a guardian o Adults with mental illness: can sue and be sued, if represented by guardian Unincorporated Organizations o Cannot be sued as an organization because theyre not recognized as persons in law o To sue: must sue individual members of the club o To pursue action: members of the club must bring their legal action as individuals o Cannot sue in the name of the club or organization o (ex) clubs, amateur teams, and community groups Government o Was possible to sue the government but now can only sue under certain circumstances The Litigation Process: Class Actions Class Action o Allows a single person or a small group of people to bring a legal claim on behalf of a larger group of people o Class: group of people on whose behalf the legal claim is brought o Range: from 2 people to a very large group of 1000s of people o Certified: the representative plaintiff must take steps to have to class certified Certification means that the court has decided to allow claims to be joined The Class Proceeding Act o Act states that a judge will certify a class if the following requirements are met: Must have Cause of Action (legitimate claim recognized by law) Dont need to prove case but must show there is some basis in law for the claim to be made Must have Common Issues (members of the proposed class) Claims of class members must involve similar questions of fact or law (ex) class members suffered same type of injury (ex) class members suffered different injuries but arose from the same incident (ex) class members are suing the same defendant in relation to the same product line or service Must be a Representative Plaintiff Law 122 Chapter Notes Mariam Chaudry Managing the Law: The Legal Aspects of Doing Business Chapter 2: Litigation and Alternative Dispute Resolution Facts must be typical of all the members of the class Liable for the costs related to the action Can ask other members to contribute to lawyer fees and disbursements Contingency Fees: only payable if the case is successful o Lawyers are permitted to charge this fee in class actions Numerous responsibilities o Must have a workable plan to represent all members fairly o Must notify all potential members of the proposed class Opt- Out Option o People are in the class action unless they specifically opt-out o Representative plaintiff must give notice to everyone Notice is usually published in newspapers or magazines Must be the Preferable Procedure (ex) if the members of the proposed claim do not have enough in common or if joining the claims would result in an overly complex proceeding, the judge may find the class action is not appropriate Legal Representation Represent yourself Hire a Paralegal or Hire a Lawyer o Regulated by Law Society of Upper Canada o Clients can sue for Paralegal or Lawyer for: Carelessness Negligence Intentional wrong doing o Required to hold Liability Insurance Provides compensation to clients who have suffered losses due to carelessness o Assurance Fund Compensate people who have suffered losses due to dishonest conduct An Overview of the Life of A Legal Action Cause of Action Occurs Action must begin within an applicable limitation period Pleadings Parties exchange filings that outline various issues they will raise at trial and facts to back them up Law 122 Chapter Notes Mariam ChaudryManaging the Law: The Legal Aspects of Doing Business Chapter 2: Litigation and Alternative Dispute Resolution Pre- Trial Activity Parties have the opportunity to discover each others case through the exchange of documents and pre-trial examination of witnesses, under an oath Parties have a pre-trial conference in which they meet with the judge. Judge gives parties an assessment of which side is likely to win if it goes to trial Some cases there is court mandated mediation Determination of Claim Parties either settle or the case goes to trial. Most cases settle before trial If case goes to trial plaintiff must prove its case on a balance of probabilities Every important part of the plaintiffs claim must be shown to be more likely true At trial, the defendant is either found liable (responsible) or not liable If held liable the plaintiff is awarded a remedy Most common remedy is compensatory damages Enforcing the
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