Chapter 3: The Resolution of Disputes: The courts and Alternative to Litigation

What is Alternative Dispute Resolution (ADR)?

ADR is the use of processes like negotiation, mediation, and arbitration to resolve disputes instead of going to court.

How can ADR and litigation work together?

The threat of litigation can encourage parties to settle through ADR, while ADR can provide a less formal resolution before or during court proceedings.

Give an example of ADR in practice.

Collaborative divorce: parties and lawyers sign a contract agreeing not to go to court and resolve issues collaboratively.

What are the three main approaches to ADR?

Negotiation: Direct communication between parties to resolve the dispute themselves.

Mediation: Neutral third party facilitates discussion to help parties reach an agreement.

Arbitration: Third party makes a binding decision on the dispute.

What are the advantages of ADR versus litigation?

Parties retain control over the process.

Flexible, allowing accommodation of multiple parties' interests.

Often quicker, informal, and satisfactory to all parties.

Common in civil law jurisdictions for business disputes.

What are the disadvantages of ADR?

May lack judicial fairness and impartiality.

Courts have powers to compel evidence not available in ADR.

May not suit parties with unequal bargaining power.

Can be costly or adversarial in arbitration.

What is negotiation in ADR?

Parties meet or communicate to resolve a dispute cooperatively without a third party; it is non-binding and voluntary.

What are some methods of negotiation?

Phone calls, written correspondence, or private meetings.

What is the role of "without prejudice" in negotiations?

Any concessions or admissions made cannot be used against a party in later litigation.

What is mediation?

A neutral third party (mediator) facilitates discussion and helps parties reach a resolution without making decisions.

What is the mediator's role?

Ensures both sides are heard, identifies compromises, elicits information, and encourages settlement.

What are the limitations of mediation?

Relies on cooperation and goodwill; improper disclosure or blame issues may prevent resolution.

What is arbitration?

A third party (arbitrator) makes a binding decision on a dispute.

When is arbitration used?

Voluntary in most cases; sometimes mandatory by statute, e.g., labour disputes.

What are the steps in arbitration?

Disclosure of information before the hearing.

Examination of witnesses, presentation of evidence, and arguments.

Arbitrator makes a binding decision; precedents not binding.

What are the disadvantages of arbitration?

More formal and costly than negotiation or mediation; limited predictability; may increase animosity.

What is online dispute resolution (ODR)?

ADR conducted online, especially for e-commerce disputes.

What are the advantages of ODR?

Overcomes geographical issues, reduces costs, quick resolution, improves accessibility.

Give an example of ODR in Canada.

BC Civil Resolution Tribunal Act (2016) created Canada's first online tribunal for strata disputes, motor vehicle accidents (<$50,000), and small claims (<$5,000).

What is jurisdiction?

Legal authority of a court to hear and resolve a dispute; delegated under Constitution Act, 1867.

What are in-camera hearings?

Court proceedings closed to the public when public access could harm national security or privacy.

What is the difference between civil and criminal actions?

Civil: Private dispute, judged on balance of probabilities (>50%).'

Criminal: Offence against the state, judged beyond reasonable doubt; prosecuted by the Crown.

What types of matters do provincial courts handle?

Less serious criminal offences

Small claims ($15,000-$50,000)

Family matters (custody, maintenance)

Youth justice under Youth Criminal Justice Act

What is the superior court of a province?

Highest trial-level court; unlimited civil jurisdiction; handles serious criminal matters; may have specialized courts (probate, estates).

What is the role of judges vs juries?

Judge: decides law; alone, decides fact and law.

Jury: decides fact.

Matters of fact: what happened

Matters of law: rules or obligations

What is an appeal?

Higher court re-examines a lower court's decision, usually on questions of law, not fact.

What is the role of provincial courts of appeal and federal courts?

Provincial appellate courts: review trial court decisions for errors of law or procedure.

Federal Court & Federal Court of Appeal: handle federal regulatory and administrative disputes.

Tax Court of Canada: handles federal tax disputes.

What is the Supreme Court of Canada's role?

Highest appellate court; hears cases of national significance; panel of 5-9 judges.

What is civil litigation?

Process of suing another party in a trial court.

What is a limitation period?

Timeframe within which legal action must be commenced; failure bars the claim.

What is the first step in civil litigation?

Determine court jurisdiction and file initial pleadings (Statement of Claim / Notice of Civil Claim).

What is discovery?

Pre-trial process:

Discovery of documents: access to all relevant evidence

Examination for discovery: questioning parties under oath

What is the purpose of a pre-trial conference?

Identify issues to be tried; encourage settlement; save time and costs.

What is an "Offer to Settle"?

Formal proposal to compromise claims before trial; refusal may affect costs.

How is the burden of proof distributed in civil trials?

Plaintiff presents evidence first; must prove claims on balance of probabilities.

What are rules of evidence?

Rules governing admissible evidence, including restrictions on leading questions.

What are the types of damages?

General: pain, suffering, future losses

Special: actual monetary losses

Punitive/Exemplary: punish outrageous conduct

What is an injunction?

Court order to stop or compel certain conduct.

What is a declaration?

Court statement clarifying the law or parties' rights.

Who is a judgment creditor and debtor?

Creditor: awarded damages by the court

Debtor: ordered to pay

How is a judgment enforced?

Execution against property, garnishment of wages or bank accounts, seizure of assets.

What are exempt assets?

Necessities of life: food, clothing, tools, limited personal property, vehicles, medical aids.

What are judicial remedies before judgment?

Prevent debtor from hiding/dissipating property; may attach accounts or property.

What is a class action?

Collective lawsuit where plaintiffs pool resources to reduce cost, avoid inconsistent results, and pursue similar claims against a defendant.

What is administrative law?

Rules governing powers and functions of government executive branch and regulatory bodies.

What are the three branches of government?

Legislative, judicial, executive

What is procedural fairness in tribunals?

Minimum standards of natural justice:

Right to notice

Opportunity to respond

Decision free from bias

What is judicial review?

Courts review administrative decisions for:

Statutory validity

Acting beyond authority

Errors of law

Procedural fairness violations

Abuse of power

What is a privative clause?

Statutory provision limiting courts' ability to review administrative decisions.

What remedies are available for administrative law violations?

Writs (certiorari, prohibition, mandamus), declaratory judgments, damages, injunctions.