Part 1 – Introduction to the Law Chapter 2 – The Judicial System and Alternative Dispute Resolution Prepared by Michael Bozzo, Mohawk College © 2015 McGraw-Hill Ryerson Limited 2-1

 Courts Role in society  Development of the Law Courts  Structure of the Judicial System  Jurisdiction – Courts are specialized  Court procedure  Administrative tribunals  ADR  Judicial appointment  Legal profession Chapter 2 - Overview © 2015 McGraw-Hill Ryerson Limited 2-2

 Courts role  Decide disputes  Interpret the Constitution  Decide division of powers  Interpret contracts  Determine responsibility and damages for loss Introduction © 2015 McGraw-Hill Ryerson Limited 2-3

 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 Development of the Law Courts © 2015 McGraw-Hill Ryerson Limited 2-4

 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 Early Law Reform © 2015 McGraw-Hill Ryerson Limited 2-5

 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 – federal, by province or provincial area ○ Subject Matter – by area of law (Criminal, Civil, etc.) ○ Trial or Appeal Court Structure of Judicial System © 2015 McGraw-Hill Ryerson Limited 2-6

 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 © 2015 McGraw-Hill Ryerson Limited 2-7 Structure

 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 © 2015 McGraw-Hill Ryerson Limited 2-8 Types of Courts

 Provincial Courts  Each province has authority to establish own system  Variation in names and powers exist but overall similar in function Types of Courts © 2015 McGraw-Hill Ryerson Limited 2-9

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 © 2015 McGraw-Hill Ryerson Limited 2-10 Criminal Courts

Criminal Appeals © 2015 McGraw-Hill Ryerson Limited 2-11

 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 © 2015 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 © 2015 McGraw-Hill Ryerson Limited 2-13 Other 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 © 2015 McGraw-Hill Ryerson Limited 2-14 Appeal Courts

© 2015 McGraw-Hill Ryerson Limited 2-15 Civil Appeals

 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 Criminal Court Procedure © 2015 McGraw-Hill Ryerson Limited 2-16

 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 Civil Court Procedure © 2015 McGraw-Hill Ryerson Limited 2-17

 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 Civil Court Procedure © 2015 McGraw-Hill Ryerson Limited 2-18

 Discovery Examinations for discovery may take place to clarify points in either parties’ pleadings (purpose is to know the other sides case) Right to discovery is conditional upon delivering a list of all documents the party will rely on in trial (called an affidavit) Any question of fact relating to the issue in the action may be asked Civil Court Procedure © 2015 McGraw-Hill Ryerson Limited 2-19

 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 Civil Court Procedure © 2015 McGraw-Hill Ryerson Limited 2-20

 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 Witnesses © 2015 McGraw-Hill Ryerson Limited 2-21

 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 Appeals © 2015 McGraw-Hill Ryerson Limited 2-22

 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 Court Costs © 2015 McGraw-Hill Ryerson Limited 2-23

 A lawyer’s fee payable on the condition of winning the case If the lawyer does not win the case, the lawyer does not get paid Practiced in the United States Pros: allows for greater access of justice for plaintiffs who would not otherwise be able to hire a lawyer Cons: encourages frivolous litigation and compromises a lawyer’s sense of justice in the search for profit Contingency Fees © 2015 McGraw-Hill Ryerson Limited 2-24

 An action where a single person represents the interests of a group, who will share in any reward © 2015 McGraw-Hill Ryerson Limited 2-25 Class Actions

 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 Law Reports © 2015 McGraw-Hill Ryerson Limited 2-26

 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 Administrative Tribunals © 2015 McGraw-Hill Ryerson Limited 2-27

 Alternative Dispute Resolution Alternatives to the courts  Types Mediation Arbitration ○ Commercial arbitration ○ Labour arbitration  Advantages Quicker, cheaper, confidentiality ADR © 2015 McGraw-Hill Ryerson Limited 2-28

 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 Legal Profession © 2015 McGraw-Hill Ryerson Limited 2-29

 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 © 2015 McGraw-Hill Ryerson Limited 2-30 SUMMARY