Business Law Chapter 3.docx

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Management and Organizational Studies
Management and Organizational Studies 2275A/B
Cristin Keller

Business Law Chapter 3 The Courts -Criminal case – public law – because government represents the citizens against the defendant or accused -Want a penalty or punishment imposed -never get money out of the criminal case, only justice -victims do not get money, goes to government if any charges are imposed on him or her -Punishments of jail time is reserved to criminal lawsuits -if victims want remedy of money or equitable remedy, they can sue the defendant under a civil lawsuit -there’s a totally different standard in civil law vs. criminal law -in a civil lawsuit, the plaintiff brings up the case Civil and Criminal Proceedings -Generally, courts are open to the public to ensure that justice is seen to be done -But publication bans and in camera (closed) hearings are possible -One incident may result in both criminal and civil trial proceedings - with the accused being charged and sued Criminal Function -In a criminal case, the “Crown” prosecutes the “accused” -The accused is convicted only when the Crown proves the case “beyond a reasonable doubt”- (“burden of proof”) -Victims are merely witnesses at the trial -The state assesses and enforces penalties -Victims are usually not compensated for their injuries or loss (but sometimes restitution of property may be ordered) Courts of Appeal of the Provinces -Not a new trial usually -But sometimes a trial de novo prescribed by legislation -Error of law -Total failure of evidence may be an error of law -Leave (permission) to appeal may be required (S.C.C.) -A panel of judges hears appeals -The appeal court will – Review the transcript of the trial – Review the trial judge’s reasons for decision – Hear verbal arguments – Review written arguments Civil Function -Individuals or organizations ask the court to adjudicate a dispute. -Court's decision is based on “balance of probabilities” –(”burden of proof”) -Court assesses liability and renders judgment -Compensation awarded to the “plaintiff” and remedies for plaintiff imposed on “defendant” The Process of Civil Litigation • Pre-trial Proceedings • “Pleadings” • Statement of Claim / Statement of Defence • Counterclaim / Defence to Counterclaim • Chambers (Interlocutory) Applications Limitation Periods Six years to two years? Discoverability principle -Ultimate Limitation Date -Extending Limitation Date? Sometimes, but not very common to prevent unfair advantages Pre-trial Procedures -Discovery -of documents/ records -verbal examination of witness -Payment into court (formal offer to settle)- the defendant has the option of offering the settlement to the plaintiff (During pre-trial procedures) Purposes of Pre-trial Proceedings -To focus dispute -To discover weaknesses / strengths of opposing parties’ case and your own -Facilitate settlement before trial -A high percentage of Canadian civil cases settle before trial -No surprises when the trial comes The Trial -Civil trial -Rules of evidence must be followed -Plaintiff presents case -“Onus of proof” rests with plaintiff -Cross examination by defendant -Defendant presents case -Cross examination by plaintiff Judgment -Damages (monetary compensation) - $$ -Special damages: damages you can show a receipt for -General damages: future estimated damages -Punitive damages: damages intended to punish -Liquidated damages: damages that were conceited in contract damages -Some other remedies – assets Costs -usually awarded to the victor -always at the discretion of the court -party and party costs -also called taxable costs -only a portion of actual costs -schedule -disbursements -plaintiff might have to pay for defendant’s costs if plaintiff doesn’t have a case and dragged the defendant into it Solicitor and own client costs – contract provision • If losing party – Your own full legal bill, and – All or part of the party’s legal bill – Rare in some provinces Specialty courts • Family, Youth, Criminal, Civil Divisions • Reforms beyond those traditional divisions – Sentencing circle – Drug – Mental health – Unified – Single-level Enforcement • Examination in aid of enforcement / execution – if defendant says he or she can’t pay for it, plaintiff might request judge to call the defendant back in and require him or her to display his or her bills • Seiz
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