1. Copyright © 2008 Pearson Education Canada3-1 Chapter 3: The Resolution of Disputes—The Courts and Alternatives to Litigation

2. Copyright © 2008 Pearson Education Canada3-2 The Courts  Criminal & Civil Functions  Trial & Appellate Functions  Federal Courts  Provincial Courts  Administrative Tribunals

3. Copyright © 2008 Pearson Education Canada3-3 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

4. Copyright © 2008 Pearson Education Canada3-4 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

5. Copyright © 2008 Pearson Education Canada3-5 Court Hierarchy Supreme Court of Canada Federal Court of Appeal Court of Appeal of the Province Federal Trial Court Superior Trial Court of the Province Provincial Courts

6. Copyright © 2008 Pearson Education Canada3-6 Process of Civil Litigation  Pre-trial Proceedings  Pleadings Writ of summons (plaintiff) Writ of summons (plaintiff) Appearance (defendant) Appearance (defendant) Statement of claim / Statement of defence Statement of claim / Statement of defence Counterclaim Counterclaim  Chambers Applications

7. Copyright © 2008 Pearson Education Canada3-7 Pre-trial Proceedings/2  Discovery Of documents Of documents Examination of witnesses Examination of witnesses  Payment into court  Purpose of Pre-trial Proceedings To focus dispute and provide opportunity and encouragement to settle before trial To focus dispute and provide opportunity and encouragement to settle before trial

8. Copyright © 2008 Pearson Education Canada3-8 Question for Discussion  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.

9. Copyright © 2008 Pearson Education Canada3-9 Trial  Plaintiff presents case Burden of proof rests with plaintiff Burden of proof rests with plaintiff Cross examination Cross examination  Rules of evidence must be followed  Defendant presents case  Jury decides on the facts  Judge determines the law

10. Copyright © 2008 Pearson Education Canada3-10 Judgment  Costs Party and party v. Solicitor/client costs Party and party v. Solicitor/client costs  Remedies  Damages (monetary compensation) General and specialGeneral and special Punitive damages may also be awardedPunitive damages may also be awarded  Accounting, injunction, specific performance  Declaration of the applicable law

11. Copyright © 2008 Pearson Education Canada3-11 Enforcement  Examination in aid of execution  Seizure of property  Garnishment of wages  Attachment of debt  Prejudgment remedies  Injunction  Limitation periods

12. Copyright © 2008 Pearson Education Canada3-12 Question for Discussion  Consider the phrase, “justice delayed is justice denied,” and apply it to the process of civil litigation in Canada. Complex procedure of court adjudication Complex procedure of court adjudication Expense and delay because of an overburdened court system Expense and delay because of an overburdened court system  Do the process and the system serve or defeat the ends of justice?

13. Copyright © 2008 Pearson Education Canada3-13 Regulatory Role of Government  Executive branch of government is responsible for regulatory bodies created by legislation.  Complaints against the actions of regulatory agencies are usually heard by administrative tribunals.  Administrative tribunals must function by the rules of natural justice

14. Copyright © 2008 Pearson Education Canada3-14 Administrative Law  Administrative tribunals include government regulatory bodies or their agents that make decisions affecting the rights of others.  The rights of people facing an administrative tribunal are covered by administrative law

15. Copyright © 2008 Pearson Education Canada3-15 Authority of Decision Maker  Rule of law - government officials must rely on legislation to authorize their acts. They cannot interfere with a person’s rights by virtue of their position.  Ultra vires v. Intra vires Authority of decision maker may be challenged Authority of decision maker may be challenged Validity of statute or regulation can be determined by the courts Validity of statute or regulation can be determined by the courts

16. Copyright © 2008 Pearson Education Canada3-16 Statutory Interpretation  Determination of whether a rule has been properly imposed is based on judicial interpretation of the statute.

17. Copyright © 2008 Pearson Education Canada3-17 Statutory Interpretation/2  Rules of interpretation include: Golden rule - reasonable interpretation Golden rule - reasonable interpretation Mischief rule - specific purpose of rule identified Mischief rule - specific purpose of rule identified Strict interpretation - must be clear and unambiguous Strict interpretation - must be clear and unambiguous

18. Copyright © 2008 Pearson Education Canada3-18 Rules of Natural Justice  Fair hearing - complainant must have notice and opportunity to be heard  Heard by decision maker - the people making the decision must be the same ones hearing the evidence  Impartiality - no bias on part of decision makers

19. Copyright © 2008 Pearson Education Canada3-19 Judicial Review  Courts review - not the decision but the process by which it was made.  All other remedies must be exhausted before courts will hear the case

20. Copyright © 2008 Pearson Education Canada3-20 Judicial Review/2  Hears challenges to authority of decision maker  Questions of procedural fairness  Decision and remedy go beyond power set out in legislation  Decisions that involve errors of law

21. Copyright © 2008 Pearson Education Canada3-21 Methods of Judicial Review  Prerogative Writs - available when a duty to act fairly has not been met Certiorari nullifies administrator’s decision Certiorari nullifies administrator’s decision Prohibition - prevents a decision being made Prohibition - prevents a decision being made Mandamus - forces a decision Mandamus - forces a decision

22. Copyright © 2008 Pearson Education Canada3-22 Methods of Judicial Review/2  Declaratory Judgment - declaration of the law  After decision has been made, court may assess damages, grant compensation

23. Copyright © 2008 Pearson Education Canada3-23 Methods of Judicial Review/3  Injunction - a court order to stop breaking the law Inappropriate when damage has already occurred Inappropriate when damage has already occurred Government officers may be immune from injunctions Government officers may be immune from injunctions  Specific statute may modify rights.  Judicial review process may be streamlined by statute

24. Copyright © 2008 Pearson Education Canada3-24 Privative Clauses  Statutes contain provisions that make it difficult for courts to conduct reviews Courts deem them not to apply when the board has gone beyond its jurisdiction or authority Courts deem them not to apply when the board has gone beyond its jurisdiction or authority Court retains right to interpret statutory provisions Court retains right to interpret statutory provisions Subject also to the Charter Subject also to the Charter Court will only interfere where serious problem Court will only interfere where serious problem

25. Copyright © 2008 Pearson Education Canada3-25 Question for Discussion  Administrators who make decisions affecting individuals must follow minimum standards of procedural fairness.  Is this appropriate or should administrators remain unfettered by these rules and procedures that are more akin to the courts?

26. Copyright © 2008 Pearson Education Canada3-26 Alternative Dispute Resolution  Process for resolving disputes outside of the courts  Main methods Negotiation Negotiation Mediation Mediation Arbitration Arbitration

27. Copyright © 2008 Pearson Education Canada3-27 Alternative Dispute Resolution/2  Advantages Parties of dispute maintain control of the solution Parties of dispute maintain control of the solution Disputants determine and schedule resolution processes Disputants determine and schedule resolution processes Minimal costs associated with process Minimal costs associated with process Matters remain private Matters remain private Preserves good will Preserves good will

28. Copyright © 2008 Pearson Education Canada3-28 Alternative Dispute Resolution/3  Disadvantages Courts have more power to extract information Courts have more power to extract information Fair process cannot be ensured Fair process cannot be ensured Decisions do not follow precedent Decisions do not follow precedent Agreements may not be enforceable Agreements may not be enforceable No public record of dispute or decision No public record of dispute or decision

29. Copyright © 2008 Pearson Education Canada3-29 Negotiation  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

30. Copyright © 2008 Pearson Education Canada3-30 Mediation  Neutral outsider helps party settle the dispute  Communication facilitated by mediator Finds common ground Finds common ground Encourages concessions Encourages concessions  Mediator does not make decision  Mediation sometimes required before court will hear case  Court may affirm mediated resolution

31. Copyright © 2008 Pearson Education Canada3-31 Mediation/2  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 Mini-trials Summary jury trials Summary jury trials

32. Copyright © 2008 Pearson Education Canada3-32 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

33. Copyright © 2008 Pearson Education Canada3-33 Arbitration/2  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

34. Copyright © 2008 Pearson Education Canada3-34 Question for Discussion  Consider the advantages and disadvantages of alternative dispute resolution processes.  Would a businessperson benefit from using such a process in a dispute over the delayed delivery of material required in the manufacturing process?