MOS 2275 Business Law Ch 3

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Western University
Management and Organizational Studies
Management and Organizational Studies 2275A/B
Philip King

Business Law: Chapter 3: The resolution of Disputes The Courts & Alternatives to Litigation The Courts: Adjudicating civil/private disputes, assessing liability, awarding compensation, criminal Procedural law allows a fair hearing, litigants have equal access to courts, parties have notice of an action against them and opportunity to reply Canadian courts open to public: Justice not only must be done but also must be seen to be done Exceptions-security of nation, children Civil action: 2 private ppl use court as referee to adjudicate dispute, judge choose between 2 pos. decides in favor of side w/ more probable pos. Judge: deciding the matter on the balance of probabilities (proof +50%) Criminal: offence is against state & victims of crime are witnesses, crown prosecutor. Judge: convinced beyond a reasonable doubt. Only criminal code, drug control legislation. Only federal can make criminal law Quasi-criminal matters: regulatory offences (environmental, fishing, employment) Provincial jurisdiction (motor vehicle, securities, hunting) Person may face criminal & civil for same matter. Can be innocent @ criminal trial and liable @ civil (proof) Provincial and federal authority to create enforcement provisions for laws that have been enacted in the Constitution Act regulatory offences are manifestations of this power Trial Courts of the Provinces: Four levels: Lowest level: Provincial Courts Criminal jurisdiction over less serious criminal matters: magistrates & judges Small claims court, family courts, youth courts (12-18) Enforcement of maintenance and alimony, no jurisdiction to issue divorce (superior trial court) Judges appointed & paid by relevant provincial govt mandatory age of retirements Highest Level: Superior Court of a Province Unlimited monetary jurisdiction in civil matters, serious criminal matters Surrogate/probate courts: administration of wills and estates Bankruptcy courts Bankruptcy & insolvency act Trial court steps: Disputing parties in civil case appear and testify Witness gives evidence, lawyers present arguments, judges make decisions Judge makes finding of law, jury makes finding of fact (sometimes judge does both) (law & fact) Matters of fact: details of an event Questions of the law: rules or laws that are to be applied in the situation Recent Developments: Changes in court dynamics to reflect change in Canadian society, court reforms dictate change Drug treatment courts: not incarceration prevent reoffending Domestic violence: specialized investigations, counseling, prosecution for repeats, support service Unified Family courts: simplifies court process Increase in number of accused w/ mental illness treatment and rehabilitation (not punishment) volunteer Circuit court: Nunavut court of justice judges given power to superior trial courts & territorial Sentencing circles: provincial court level for aboriginal offenders & victims, not courts. (Discussion based) Business Law: Chapter 3: The resolution of Disputes The Courts & Alternatives to Litigation Many suggested reforms are resisted on the ground they would threaten to damage an effective system Courts of Appeal of the Provinces: Each province appellate court hears appeals from lower courts of that province (before to Supreme Court-last) When a party is dissatisfied w/ decision of provincial trial court & error in law/procedure identified: appealed Appeal court considers case only when questions of law are in dispute (not questions of fact) Mixed law and fact: whether person lived up to the standards of a reasonable person in a given situation Court exercising appellate jurisdiction doesnt hold new trial Assume judge who saw & heard evidence presented at trial are qualified to determine questions of fact Appeal court judges read transcript of trial & judges reasons for decision Deal w/ specific objections to decisions (both sides) Provincial/appeal judge: appointed by federal govt tenure till retirement/ new position, misconduct = removal Court at a Federal Level: Federal Court: trial division, hears disputes in the federal sphere of power Federal Court of Appeal: appellate court, hears appeals fro the federal court Both courts hear appeals from decisions of federal regulatory bodies & admin tribunals Quasi-judicial bodies Appeal from Federal Court of Appeal Supreme Court of Canada Tax Court of Canada: enforce taxation statutes, income tax act, employment insurance act, old age security act Supreme Court of Canada: Highest court, appellate function where private citizens are concerned, sets binding precedence 9 judges appointed by government of Canada. Quorum 5 judges, most appeals heard by 7-9 No automatic right of appeal (except criminal cases), leave to appeal obtained from Supreme Coe Leave granted only for national significance (criminal & civil) rule directly on constitutional disputeBusiness Law: Chapter 3: The resolution of Disputes The Courts & Alternatives to Litigation Process of civil litigation The Process of Civil Litigation: Before decision to sue someone all avenues for settling dispute outside of litigation should be exhausted Alt methods for resolving legal disputes: negotiation, mediation, arbitration Limitation Period: Court action must be brought within a period of time from the event giving rise to the complaint Filing appropriate pleading w/ appropriate court, failure within limitation period = barred from pursuing action Time limitation varies on jurisdiction & nature of complaint Exp
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