Management and Organizational Studies 2275A/B Chapter Notes -Appellate Jurisdiction, Public Auction, Ouster Clause
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Published on 22 Nov 2011
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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 gov’t – 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 doesn’t 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 gov’t 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 dispute
Business 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
•Expiry of limitation period + threat of court action removed
○Potential defendant not likely to settle out of court & plaintiff is left w/ no recourse
○Expiration of limitation period prohibits suing
Jurisdiction:
•Determine which court should hear the action – geographic jurisdiction (internet complicates) (can be refused)
•Once province chosen, plaintiff must choose court in which to commence litigation
•Civil action – province’s small claims court/superior court
•Small claims court is simple but only minimal costs are recoverable (lawyer costs isn’t recovered) streamlined
Pre-trial Procedures:
•Step 1: Writ of summons: issued by plaintiff, if defendant disputes claim must file an appearance w/ court
clerk