Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Business Law in Canada, 7/e Chapter 2 The Resolution of Disputes The Courts, Litigation and Its Alternatives 2-1

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 The Courts Criminal & Civil Functions Trial & Appellate Functions Federal Courts Provincial Courts Administrative Tribunals 2-2

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Criminal Function In a criminal case, the state (crown) prosecutes the accused who is convicted only when state proves the case beyond a reasonable doubt Victims are merely witnesses at the trial The state assesses and enforces penalties Victims are not compensated for their injuries 2-3

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Civil Function Private individuals ask the court to adjudicate a dispute. Court’s decision is based on balance of probabilities Court assesses liability and can enforce judgment Compensation and remedies imposed on defendant 2-4

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Court Hierarchy 2-5 Supreme Court of Canada Federal Court of Appeal Federal Court Trial Division Court of Appeal of the Province Superior Trial Court of the Province Provincial Courts

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Process of Civil Litigation Pre-trial Proceedings Writ of summons (plaintiff) Appearance (defendant) Pleadings Statement of claim / Statement of defence Counterclaim Chambers Applications 2-6 Continued on 2-7

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Pre-trial Proceedings/2 Discovery Of documents Examination of witnesses Payment into court Purpose of Pre-trial Proceedings To focus dispute and provide opportunity and encouragement to settle before trial 2-7

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Question for Discussion 2-8 The pre-trial process is long and involved and adds greatly to the expense of having a matter decided by the court. Consider the advantages and disadvantages of the various steps and suggest how they might be simplified.

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Trial 2-9 Plaintiff presents case Burden of proof rests with plaintiff Cross examination Rules of evidence must be followed Defendant presents case Jury decides on the facts Judge determines the law

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Judgment 2-10 Costs Party and party costs Solicitor client costs Remedies Damages (monetary compensation) General and special Punitive damages may also be awarded Accounting, injunction, specific performance Declaration of the applicable law

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Enforcement 2-11 Examination in aid of execution Seizure of property Garnishment of wages Attachment of debt Prejudgment Remedies Injunction Limitation Periods

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Question for Discussion 2-12 Consider the phrase, “justice delayed is justice denied,” and apply it to the process of civil litigation in Canada. Complex procedure of court adjudication Expense and delay because of an overburdened court system Do the process and the system serve or defeat the ends of justice?

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Alternative Dispute Resolution 2-13 Process for resolving disputes outside of the courts Main methods Negotiation Mediation Arbitration Continued on 2-14

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Alternative Dispute Resolution/ Advantages Parties of dispute maintain control of the solution Disputants determine and schedule resolution processes Minimal costs associated with process Matters remain private Preserves good will Continued on 2-15

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Alternative Dispute Resolution/3 Disadvantages Courts have more power to extract information Fair process cannot be ensured Decisions do not follow precedent Agreements may not be enforceable No public record of dispute or decision 2-15

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Negotiation 2-16 Parties discuss the problem with each other in order to find a solution Process requires cooperation and compromise Good communication skills May be conducted through representatives Process may enhance relationship Agreement may not be legally binding

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Mediation 2-17 Neutral outsider helps party settle the dispute Communication facilitated by mediator Finds common ground Encourages concessions Mediator does not make decision Mediation sometimes required before court will hear case Court may affirm mediated resolution Continued on 2-18

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Mediation/ Not the process to use when there is an imbalance of power or where blame or liability for injury must be determined Parties must be willing to disclose information Forms of mediated process include Mini-trials Summary jury trials

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter Arbitration Parties agree on an independent third party to make a decision that will be binding on the disputants Often required in contract Arbitrators are specialists in the matter under dispute Procedure must be fair Continued on 2-20

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Arbitration/ Decision of arbitrator is binding on the parties Decision cannot be appealed although procedure may be reviewed by the courts Process is private, faster, less costly than litigation, but more formal and more adversarial than mediation

Copyright © 2005 Pearson Education Canada Inc. Business Law in Canada, 7/e, Chapter 2 Question for Discussion 2-21 Consider the advantages and disadvantages of alternative dispute resolution processes. Would a business person benefit from using such a process in a dispute over the delayed delivery of material required in the manufacturing process?