Prepared by Douglas Peterson, University of Alberta 2-1 Part 1 – Introduction to the Law Chapter 2 – The Judicial System

© 2006 McGraw-Hill Ryerson Limited 2-2 Chapter 2 - Overview  Courts Role in society  Development of the Law Courts  Structure of the Judicial System  22  Court procedure  Administrative tribunals  ADR  Judicial appointment  Legal profession

© 2006 McGraw-Hill Ryerson Limited 2-3 Introduction  Courts role  Decide disputes  Interpret the Constitution  Decide division of powers  Interpret contracts  Determine responsibility and damages for loss

© 2006 McGraw-Hill Ryerson Limited 2-4 Development of the Law Courts  Long period of development  1794 Judicature Act  1837 Court of Chancery  1849 Court of Common Pleas  1856 Merger of Queen’s Bench and Common Pleas  1867 BNA Act

© 2006 McGraw-Hill Ryerson Limited 2-5 Early Law Reform  Many reforms passed between 1873 and 1925  Beginning of development of the Supreme Court  Gradual reduction in formal process  1982 Charter of Rights and Freedoms

© 2006 McGraw-Hill Ryerson Limited 2-6 Structure of Judicial System  Jurisdiction – different courts with different jurisdictions  Right or authority of a court to hear a matter  Authority over the parties or the property or the matter  Authority: divided in different ways  Monetary – up to a certain amount  Geographic – province or area

© 2006 McGraw-Hill Ryerson Limited 2-7 Structure  General Classifications  Courts of Original Jurisdiction  Case heard for first time (trial courts)  Courts of Appeal  Hear appeals from trial courts  Superior or higher courts  Do not hear evidence  Look for errors of law

© 2006 McGraw-Hill Ryerson Limited 2-8 Types of Courts  Federal Courts  Deals with federal matters under federal government jurisdiction  Admiralty, patents, tax, trademark, immigration, copyright  Structure  Federal Court Trial Division  Federal Court of Appeal

© 2006 McGraw-Hill Ryerson Limited 2-9 Types of Courts  Provincial Courts  Each province has authority to establish own system  Variation in names and powers exist but overall similar in function

© 2006 McGraw-Hill Ryerson Limited 2-10 Criminal Courts  Magistrate’s or Provincial Court  Court of original jurisdiction  Initially deals with all criminal matters  Holds preliminary hearings of more serious crimes to determine if sufficient evidence exists to send it to a higher court  Provincial Supreme Court  Hears more serious criminal matters  Youth Courts  Hears cases of youth who commit crimes  12 years or older to under 18 years old  Criminal Courts of Appeal  Hear appeals from lower courts

© 2006 McGraw-Hill Ryerson Limited 2-11 Other Courts  Provincial Supreme Court  Hears civil disputes over and above small claims matters or those matters specifically set in the superior court  Civil Courts  Deals with disputes between private persons  Small Claims Courts  Hear disputes up to a certain amount of money  Amount varies by each province

© 2006 McGraw-Hill Ryerson Limited 2-12 Other Courts  Family Courts  Not criminal courts in the ordinary sense  Deal with domestic issues  Support payments, custody issues  Surrogate (Probate) Court  Deals with administration of wills and estates

© 2006 McGraw-Hill Ryerson Limited 2-13 Appeal Courts  Civil Courts of Appeal  Provincial Court of Appeal  Hears appeals in each province from lower courts  Supreme Court of Canada  Highest court in Canada  Hears all appeals from all courts including federal court  Right to appeal is restricted, leave (permission) by the court must be granted

© 2006 McGraw-Hill Ryerson Limited 2-14 Criminal Court Procedure  Enforcement of Criminal law  Usually same court that deals with civil matters  Minor or lesser offences dealt with by way of summary conviction rules  Serious matters by way of indictment  Procedure  Offence is read by crown  Accused makes a plea (guilty or not guilty)  Guilty plea – speak to sentence and penalty imposed  Not guilty plea – hear evidence at trial and court makes a decision

© 2006 McGraw-Hill Ryerson Limited 2-15 Civil Court Procedure  Pleadings  Written statements prepared by parties that set out facts and claims  Plaintiff – party bringing an action  Defendant – party defending an action  Various documents  Statement of claim or defense  Writ of summons  An appearance

© 2006 McGraw-Hill Ryerson Limited 2-16 Civil Court Procedure  Close of Pleadings  Once pleadings have been closed, either party sets it down for trial  May require some form of attempt at dispute resolution before going to trial  Examinations for discovery may take place to clarify points in either parties pleadings (purpose is to know the other sides case)

© 2006 McGraw-Hill Ryerson Limited 2-17 Civil Court Procedure  Trial (Procedure)  Plaintiff opening  Defendant opening  Plaintiff presents evidence and calls witnesses  Defendant can cross examine  Defendant presents evidence and calls witnesses  Plaintiff right to cross examine  Parties sum up their cases  Judge or jury deliberates to decide matter

© 2006 McGraw-Hill Ryerson Limited 2-18 Witnesses  2 Types  Ordinary Witnesses  Give (direct) evidence of what they saw or heard  Expert Witnesses  Recognized experts on a subject and give opinion evidence –Medical experts, accountants,  Best Evidence  Not allow “hearsay” evidence – what someone heard someone else say

© 2006 McGraw-Hill Ryerson Limited 2-19 Appeals  Can appeal to a higher court if one feels the judge erred in application of the law or admission of evidence  Serve a notice of appeal  Court can:  Affirm  Reverse  Send back for new trial

© 2006 McGraw-Hill Ryerson Limited 2-20 Court Costs  Party Costs –  award successful party the costs incurred plus a fixed counsel fee according to a schedule or tariff  Usually at discretion of court but usually always awarded  Solicitor Client Costs  Awarding entire legal expenses if in opinion of court for unwarranted suits or defenses

© 2006 McGraw-Hill Ryerson Limited 2-21 Law Reports  The published decisions of the courts  Found in different series of reports  Case Citations  Used by legal profession to identify cases as persuasive argument before the courts  Set system of citation must be used

© 2006 McGraw-Hill Ryerson Limited 2-22 Administrative Tribunals  Purpose  Boards or commissions charged with regulation of certain matters  Tribunals powers set forth in statutes  Limited to powers granted to them under statute  Ad hoc tribunal  Tribunal established to deal with a particular dispute between parties

© 2006 McGraw-Hill Ryerson Limited 2-23 ADR  Alternative Dispute Resolution  Alternatives to the courts  Types  Mediation  Arbitration  Commercial arbitration  Labour arbitration  Advantages  Quicker, cheaper, confidentiality

© 2006 McGraw-Hill Ryerson Limited 2-24 Judicial Appointment Process  Federal Government  Appoints Supreme Court, Federal Court, Tax Court, Provincial Supreme Courts  Provincial Government  Appoints provincial court judges (trial courts)  Process  Commissioner makes recommendations to a committee

© 2006 McGraw-Hill Ryerson Limited 2-25 Legal Profession  Attorney – a lawyer  Solicitor – preparation of documents, traditionally in England could not appear in court  Barrister – a lawyer who appeared in court  Canada – all lawyers are both barristers and solicitors

© 2006 McGraw-Hill Ryerson Limited 2-26 Summary  Legal system evolutionary in nature  Purpose of judicial system is to ensure justice  Courts have jurisdiction based on  Geographic;  Subject matter; or  Monetary amount  Appeals court hear appeals from lower courts  ADR is used often in business for the advantages it offers to litigation