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Management and Organizational Studies 2275A/B Chapter Notes -Appellate Jurisdiction, Public Auction, Ouster Clause


Department
Management and Organizational Studies
Course Code
MOS 2275A/B
Professor
Philip King

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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)

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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

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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
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