Chapter 3 – The Resolution of Disputes – The Courts and Alternatives to Litigation

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Published on 21 Oct 2011
School
Simon Fraser University
Department
Business Administration
Course
BUS 393
Professor
Chapter 3 – The Resolution of Disputes – The Courts and Alternatives to
Litigation
The Courts
Courts are open to the public; exceptions: if affects security of the nation, in-
camera hearings (closed to public); if children or sexual assault, hearing is
open but no publication of names
Civil actions: two people use court as a referee to adjudicate a dispute –judge
chooses between two positions based on balance of probabilities
Criminal prosecutions: offence is against state and victims are witnesses,
government prosecutes accused through a Crown prosecutor; judge/jury
must be convinced beyond a reasonable doubt
Someone may face both criminal and civil trials for same matter – can lose
one and win other
Regulatory offences (eg. environmental, fishing, employment, hunting,
securities, etc.) are quasi-criminal matters, not under the Criminal Code –
criminal law is federal responsibility
Trial Courts of the Provinces
Lower provincial courts:
oProvincial Courts – criminal jurisdiction over less serious offences
oSmall claims courts – civil matters less than $25,000
oFamily courts – family matters such as custody, maintenance, alimony
(not divorce)
oYouth courts – under the Youth Criminal Justice Act, age 12-18 subject
to same Criminal Code but different level of punishment
Superior court of the province – high trial level court: unlimited monetary
jurisdiction, serious criminal matters
Cases first appear before trial courts
Judge makes findings of law, and jury of fact
Recent Developments
Sentencing circles – used for aboriginal cases, where all interested
persons meet to discuss the offence and sentencing options,
restorative justice method
Courts of Appeal of the Provinces
Provincial appellate courts hear appeals from lower courts of that province;
must hear a case before it can go to the Supreme Court of Canada
If dissatisfied with trial court decision and error in law/procedure, decision
may be appealed
Only look at questions of law, not of fact (but usually mixed law and fact)
Appeal court does not hold a new trial – only review trial transcript and
reasons for decision
Courts at the Federal Level
Federal Court (trial court) – hears disputes within federal jurisdiction (eg.
copyrights, federal boards/commissions, federal lands/money, federal gov’t
contracts)
Federal Court of Appeal - hears appeals from Federal Court and
administrative tribunals
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oAppeal from the Federal Court of appeal goes to Supreme Court of
Canada
Tax Court of Canada – hears disputes concerning federal tax
Supreme Court of Canada – has a strictly appellate function (for private
citizens)
o9 judges appointed by the gov’t
oOnly deals with cases that have national significance or Constitutional
or Charter matters
oAlso used to hear conflicts between provincial and federal gov’ts
oSets binding precedents on all other courts
The Process of Civil Litigation
Suits must be filed in a timely manner, should try to settle disputes outside of
litigation
Case: court found that limitation can’t expire before victim of negligence is
aware of damage
Jurisdiction
First step: determine which court should hear the action
oProvince where the defendant lives or where the matter occurred
oSmall claims vs. superior court, depends on matter/amount you’re
suing for
Pre-Trial Procedures
Pleadings:
1. Plaintiff: Writ of summons (if required) – document saying “I will sue
you” with brief summary – still required in B.C.
2. Defendant: Appearance (if required) – if defendant chooses to dispute
claim, must file appearance with the court clerk
3. Plaintiff: Statement of claim – details the plaintiff’s allegations
4. Defendant: Statement of defence – provide answers to claims, state
areas of agreement, dispute, or contrary allegations
5. Defendant: Counterclaim (optional) – similar to ‘Statement of claim’,
plaintiff must then also file a ‘Statement of defence’
Discovery:
1. Discovery of documents – each party inspects other party’s
documents (evidence)
2. Examination for discovery – Answer questions under oath, may be
used at trial
Pre-trial conference may be held by parties/lawyers/judge to determine which
issues remain to be tried and whether parties can resolve it themselves
Offer to settle – either party can make offer to settle; if accepted, matter is
ended
oIf plaintiff rejects offer and judgment is for less than the offer, plaintiff
will not be compensated for legal expenses from the time of refusal
Purpose is to bring information forward and encourage settlement between
parties
Recent Initiatives
B.C. has summary trials where evidence is adduced by affidavit; Fast
Track Litigation can be completed in 2 days
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Document Summary

Chapter 3 the resolution of disputes the courts and alternatives to. Judge makes findings of law, and jury of fact: sentencing circles used for aboriginal cases, where all interested persons meet to discuss the offence and sentencing options, restorative justice method. Courts of appeal of the provinces: provincial appellate courts hear appeals from lower courts of that province; must hear a case before it can go to the supreme court of canada. Federal court (trial court) hears disputes within federal jurisdiction (eg. copyrights, federal boards/commissions, federal lands/money, federal gov"t contracts) Canada citizens: 9 judges appointed by the gov"t, only deals with cases that have national significance or constitutional, also used to hear conflicts between provincial and federal gov"ts, sets binding precedents on all other courts or charter matters. The process of civil litigation: suits must be filed in a timely manner, should try to settle disputes outside of, case: court found that limitation can"t expire before victim of negligence is.