LECTURE MATERIALS: WEEK 2

Agenda Review Exercise Litigation Court Processes Class Action Proceedings Overview Of Canadian Courts Administrative Tribunals Alternative Dispute Resolution Weighing The Merits Of Litigation Before Courts And Tribunals

A. LITIGATION AND ALTERNATIVE DISPUTE RESOLUTION

Litigation: The Systems and Processes Used to Resolve Disputes in Court

Who Participates in Litigation?

Adults

Litigation Guardians
Representing Children and Mentally Incapable Litigants

Organizations
Businesses, Public Bodies, Civil Society Groups

Intervenors
People or Groups Interested In a Case's Outcome

The Litigation Cycle: Part 1

Pleadings

Pre-Trial Activity

Trial

Ruling

The Litigation Cycle: Part 2

Remedy/Enforcement

Appeals

 How Many Different Kinds Of Litigants Are Involved In The Case Cited Below?

Overview of Key Parties in the Courtroom

Judges

Judges: Experienced lawyers specially appointed to preside over court proceedings Oversee cases at various stages of the litigation process Bound by very strict professional standards requiring them to be unbiased and impartial

Lawyers and Paralegals

Lawyers:

Professionals with special training needed to represent parties/litigants in court For lawyers, this special training includes a) Completion of undergraduate, pre-law education at a degree-granting institution (and sometimes additional graduate education) b) Completion of law school c) The completion of bar admission examinations d) Completing an Apprenticeship period, known as articling e) In Ontario, Lawyers most hold professional liability insurance and maintain membership in the Law Society of Upper Canada Lawyers can appear in Canadian courts

Paralegals: Professionals who are not lawyers but have specialized legal expertise Paralegals are also required to train at approved institutions, sit qualification exams, have professional liability insurance and maintain membership in the Law Society of Upper Canada Paralegals appear most frequently handle matters in small claims courts, traffic courts and minor criminal cases in provincial courts Paralegals also appear before administrative tribunals such as the Ontario Rental Housing Tribunal or the Workplace Safety and Insurance Appeals Tribunal There are some things paralegals cant do. Unlike lawyers, they cannot: a) Appear in all courts; b) Draft wills or manage estates; or c) Complete real estate transactions.

Unrepresented Parties/Litigants

Self-Represented Parties: Litigants who either cannot afford or do not want lawyers or paralegals representing them Most common in lower level courts, such as small claims court, traffic court, etc. Unrepresented parties are increasingly common in courts, especially when the economy deteriorates and fewer people can afford legal representation

B. COURT PROCESSES ~ The Litigation Cycle: Part 1

Pleadings

Pre-Trial Activity

Trial

Ruling

PLEADINGS:
DOCUMENTS USED TO COMMENCE LITIGATION AND TO IDENTIFY ISSUES OUTLININGTHE NATURE OF THE DISPUTE
Drafted by party Issued by court Served on opposing party

Party
Plaintiff Defendant

Status
Party Making The Complaint Subject Of The Complaint

Documents
Statement Of Claim Statement Of Defence a denial of facts or legal liability in counterclaim

Defendant

Subject Of The Complaint

Counterclaim used if defendant wants to claim against plaintiff in same proceedings

Plaintiff

Party Making The Complaint

Reply used by plaintiff to dispute contents of statement of defence Demand For Particulars

Either Party

Most Civil Cases Are Subject to A Limitation Period: The Amount Of Time Parties Have To Start Legal Proceedings

General rules regarding the length of limitation periods Traditional guideline: 6 years for contract and 2 years for tort Modern trend: 2 years for contract and tort Other periods vary widely E.g. 20 years to recover land E.g. 7 days to sue city if you slip and fall on ice Late Claims Are Generally Unenforceable, Which is Why Missing a Limitations Period Is Serious

Pre-Trial Activity in Litigation: The Stage Where Most Cases Settle

Examination For Discovery Information gathered under oath outside court http://www.youtube.com/watch?v=7kFvfEy9K98 Pre-Trial Conference Settlement Mediation Judge meets with parties to narrow issues to be litigated at trial and to determine how long the trial will last Method whereby parties may avoid trial by agreeing to resolution There is a mandatory mediation program currently operating in Ontario http://www.youtube.com/watch?v=nEzSUVSSN-o Pre-Trial Settlement Conference Mediation session with a judge present

Trial
Two Options: Judge Alone or Jury (Civil Jury Trials Are Rare) Overview of Civil Trials http://www.youtube.com/watch?v=9MScGHu60iM

Evidence

Information heard by the court during proceedings and provided by ordinary witnesses or expert witnesses Evidence may be inadmissible, based on: Rules set out in statutes (like the Canada Evidence Act) Common law precedent established by past court rulings The court may use these rules to conclude evidence cannot be admitted because it is: Unreliable Unlawfully obtained Hearsay Testimony from a lawyers own witness Testimony by another lawyers witness

Examination-in-Chief Cross-Examination

Criminal Law Standard of Proof: Beyond a Reasonable Doubt Civil Law Standard of Proof: Balance of Probabilities Criminal Proceedings: Preliminary Hearing (Similar to a Discovery, but designed to access the strength of the case against the accused) Trial (With or Without a Jury) http://www.youtube.com/watch?v=Jj8YbsBdXiE

The Litigation Cycle: Part 2

Remedy/Enforcement

Appeals

Appeals
Cases Before Appellate Courts (Usually Consisting of Three or More Judges) Majority Decision Prevails Judge Who Disagrees Writes A Dissenting Opinion In Civil Cases There Is No Right Of Appeal Parties Must Ask Permission By Seeking Leave To Appeal Parties Fall Into Two (Or Three) Camps Appeal Process The appellant disputes the lower courts decision The respondent supports lower courts decision One or more intervenors may also have an interest in the appeal No new evidence or witnesses Appellate court focuses on whether a lower court mistakenly applied the law or somehow misunderstood the evidence before the court. affirm decision below (appeal dismissed) reverse decision below (appeal allowed) vary decision below (appeal allowed) Remedies on Criminal or Regulatory Litigation Conviction Fine Jail sentence Order to carry out a specific task or Order to refrain from a specific behaviour

Possible Outcomes

Remedies in Civil Litigation Compensatory damages Punitive damages Nominal damages Specific performance Injunction Rescission

Enforcement Whats the difference between winning a judgment and enforcing a judgment? Enforcement techniques garnishee income seize and sell assets

 Methods of Paying for Litigation Deferred Fees = Pay Only After Case Is Resolved Contingency Fees = Pay Only If Case Is Won: Often Covers Only Fees (Not Disbursements) Often Calculated At 25 - 40 Percent Of Winnings Effect Of Contingency Fees: Benefit: Poor Parties Able To Afford Litigation Detriment: Fees Higher Than Normal The Structure of Fees Associated With Winning or Losing Your Case Costs = expenses incurred during litigation, which include disbursements + lawyer fees General rule: loser pays winners costs on what is called a party-and-party/partial indemnity basis Exceptionally, fees may be awarded on a solicitor-and-client/substantial indemnity basis requires losing party to pay their opponents entire legal bill May be awarded if the lawsuit was considered frivolous or vexatious May be awarded if reasonable settlement rejected

C. CLASS ACTION PROCEEDINGS: A Litigation Process Allowing A Person Or People To Sue On Behalf Of A Larger Group Of Claimants
Multiple Claims Against Single Defendant Joined Together In One Action Small Claimants Able To Share Costs Of Litigation Against Large Defendant

1. Do Common Issues Exist? 2. Is There A Representative Plaintiff? 3. Is There a Process for Notifying Other Claimants? 4. Is There An Effective Claims Management Process? 5 The Court CertiGies the Plaintiffs, which Allows Them to Proceed as a Class Action

 COMMON KINDS OF CLASS ACTION CLAIMS Topic Area Product Liability Legal Issue Forming the Basis of Litigation 2008 Listeriosis contamination of meats produced by Maple Leaf Foods 2000 water contamination in Walkerton, Ontario Ongoing legal process surrounding compensation of aboriginals who lived in residential schools and suffered various kinds of abuse 2000 allegations of excessive late payment/interest charges on the part of Consumers Gas Company Ltd.

Mass Torts Clubs Or Churches

Consumer Protection

D. OVERVIEW OF CANADAS COURTS

Supreme Court of Canada

Provincial Appeal Courts

Federal Appeal Courts

Superior Courts

Federal Courts

Provincial Courts

Small Claims/ Traffic Courts

The Doctrine Of Precedent:

The Requirement That All Courts Must Follow The Rulings Of Courts Above Them Other Court Rulings Such As Those In Other Provinces - May Be Persuasive But Not Binding

Court
Supreme Court Highest Court In Canada 9 Judges Who Are Appointed By Federal Government This Court Only Hears Appeals And Special References Generally No Right Of Appeal Appellant Must First Obtain Leave To Appeal Judges Appointed By Federal Government Oversees Matters Of Federal Jurisdiction Think Division Of Powers! Tax Court Of Canada Federal Court Trial Division Federal Court Of Appeal Appointed By Federal Government Highest Court In Province Or Territory Binding On Lower Courts In The Province Appointed By Federal Government Generally Hear Serious Trials Occasionally Hear Appeals From Lower Courts Rulings Are Binding On Lower Courts In The Province, Provincial Courts Judges Appointed By Provincial Government Legal Cases Include Family Court Youth Court Minor Criminal Matters Small Claims Courts Subdivision Of Provincial Courts Provides Easy Access To Justice Ideally Suited For Small Business Disputes (E.g. Repayment Of Loan, Defective Goods, Rent, Wages)

Federal Courts

Provincial Courts of Appeal Provincial Superior/Supreme Courts Provincial Courts

Small Claims Courts

Advantages Relatively Fast and Relatively Less Expensive Relatively Informal Proceedings Limitations Generally Must Sue Where Event Occurred Or Defendant Resides There is a Ceiling or Limit on Claims And Remedies Generally Limited To Claims For Payment Of Money Or Delivery Of Goods No Claims On Federal Issues (E.g. Copyright, Taxes) No Equitable Relief (E.g. Injunction Or Specific Performance) Monetary Limits ($5000 - $25 000, Depending Upon Jurisdiction)

E. ADMINISTRATIVE TRIBUNALS
Specialized decision-making bodies created to regulate particular fields of activity

Examples of Federal and Provincial Tribunals Human Rights Tribunal Ontario Securities Commission Environmental Review Tribunal Competition Tribunal Patent Appeal Board
Administrative Tribunals: Core Features

In an attempt to control judicial oversight, governments will often put privative clauses in within enabling statutes to control the courts ability to intervene. This highlights the tension between courts and regulators in the fight for control over decision-making in a particular area of activity?

F. ALTERNATIVE DISPUTE RESOLUTION Dispute Resolution Outside Of Court

General Disadvantages Of Litigation Slow, Expensive, Unpredictable, Adversarial, Public General Advantages Of ADR Quicker, Cheaper, Controlled, Cooperative, Private Examples Of ADR Drawbacks Of Litigation In Most Situations, Court Can Only Award Damages Against The Defendant Plaintiffs Real Goal In Litigation May Be To Receive An Explanation And An Apology Instead Of Monetary Compensation Some Provinces Have Taken Steps To Allow Apologies To Occur, Without Any Admission Of Liability, E.G. Apology Act Of British Columbia Types Of ADR Negotiation Mediation Arbitration Negotiation = Discussions Between Parties Negotiation Process No Intervention By Third Party No Guarantee Of Binding Resolution

Mediation = Discussions Through Mediator Mediation Process Mediation Usually Voluntary May Be Required By Contract Or By Law (In Ontario) Mediator Generally Chosen By Parties Mediator Suggests Resolution Either Party May Reject Mediators Suggestion Mediators Decision Non-Binding http://www.youtube.com/watch?v=eWGwaEUD0SY Arbitration = Dispute Resolved By Arbitrator Arbitration Process Arbitration Often Required By Prior Contract Arbitration Clause May Settle Details (E.G. Time, Place) Arbitrator Usually Chosen For Expertise In Area Arbitrator Imposes Decision On Parties Arbitrator Hears Witnesses And Reviews Evidence Decision Usually Binding And Enforceable Decision Often Cannot Be Appealed http://www.youtube.com/watch?v=C_QcesKYlc8

G. WEIGHING THE MERITS OF LITIGATION: The Possible Risks & Benefits of Going to Court
Advantages Of Litigation Legal decisions are made strictly on the basis of evidence before the court Judicial decision-making is free from political interference Judicial decision-making can be made free from voter influence Both parties are bound by established rules of evidence, forcing them to meet certain evidentiary standards in order to make their case Courts have an opportunity to address contentious policy issues that politicians might prefer not to put to a popular vote Common law precedent may bind courts in ways that can only be corrected by legislative reform The process can be unpredictable and time consuming, dragging on for several years A courts view of a problem may be different from that of voters and politicians Disadvantages of Litigation High costs of paying for lawyers and disbursements limits access to justice, especially for smaller businesses Courts narrow focus on an issue may not address every aspect of a policy problem

Other Strategic Business Concerns: How might a case harm a companys reputation? How can a case impact a companys share price or its overall value? Might the case potentially impact specific plans, such as completing a business transaction? In the event of a loss, is the damage award enough to ruin the business?