BLAW 201: Chapter 2: Litigation and Alternative Dispute Resolution

What is litigation?

The process of resolving disputes through the court system.

Who can sue in a litigation process?

Adults, corporations, and governments (with special rules).

What is a class action?

A lawsuit where one person or a small group sues on behalf of many, allowing individuals to take on larger organizations.

What are the benefits of class actions?

They are cost-effective for widespread small claims and may deter large organizations from harmful behavior.

What are the criteria for a class action?

Common issues among members, a representative plaintiff, notification to potential members, preferable procedure, and court certification.

What options do individuals have for legal representation?

Self-representation, hiring a lawyer, or using a paralegal.

What is self-representation in legal matters?

The right of individuals to represent themselves, advised only for simple matters.

What qualifications must lawyers have?

Complete training, pass exams, and be governed by provincial bodies (Law Societies).

What is the role of Law Societies?

They impose codes of conduct, investigate misconduct, and manage professional liability insurance.

What is a paralegal?

A non-lawyer providing legal advice and services within regulated areas.

What are the differences between paralegals and lawyers?

Paralegals are less expensive, handle specific issues, and may not be licensed, while lawyers have more rigorous training and broader expertise.

What are pleadings in the litigation process?

Documents used to identify legal issues and clarify disputes, drafted by parties and served on the opposing party.

What is a Statement of Claim?

A document filed by the plaintiff to initiate a lawsuit, outlining the dispute and remedies sought.

What is a Statement of Defence?

Filed by the defendant to set out their version of facts and deny liability.

What is a Counterclaim?

A claim made by the defendant against the plaintiff, which can be combined with the Statement of Defence.

What is the purpose of a Demand for Particulars?

To require the opposing party to provide additional information or clarify pleadings.

What activities occur during pre-trial?

Documentary discovery, examinations for discovery, pre-trial conferences, and mandatory mediation.

What is the general limitation period for legal remedies?

2 years from the discovery of the claim, with specific exceptions.

What is the burden of proof in civil litigation?

The balance of probabilities, meaning the evidence must show that something is more likely true than not.

What outcomes can result from civil litigation?

If the case is proven, a legal or equitable remedy is granted; if not proven, the case is dismissed.

What does it mean to enforce a judgment?

The winning party must take steps to ensure the judgment debtor pays, which may include garnishing income or seizing assets.

What is the role of the appellant in an appeal?

The party disputing a lower court decision.

What is a respondent in a legal appeal?

The party supporting the lower court decision.

What is the focus of an appeal?

The focus is on law rather than fact, operating from the court record at trial.

What is the typical composition of an Supreme Court of Canada?

It comprises nine justices

What are the possible outcomes of an appeal?

Affirm, reverse, vary the decision, or send back to lower court for retrial.

What are costs in the context of litigation?

Expenses incurred during litigation, typically paid by the losing party.

What is the general rule regarding litigation costs?

The loser pays the winner's costs, with exceptions.

What are contingency fees?

Fees paid to a lawyer only if the lawsuit is successful, often a percentage of the judgment.

What is the role of the Supreme Court of Canada?

It is the highest court in Canada, with nine justices appointed by the Government of Canada.

What distinguishes Courts of Appeal from Superior Trial Courts?

Courts of Appeal hear appeals, while Superior Trial Courts handle civil law trials and serious criminal matters.

What types of cases do Federal Courts handle?

Tax disputes, federal division of powers trials, and appeals from the Trial Division and Tax Court.

What are the advantages of Small Claims Courts?

They are quicker, less expensive, and less formal compared to Superior Courts.

What is the monetary limit for claims in Small Claims Courts?

$6,000 to $35,000 depending on jurisdiction.

What is the Doctrine of Precedent?

Judges must follow similar decisions from higher courts in the same hierarchy.

What is the purpose of administrative tribunals?

To resolve issues and disputes, functioning somewhere between government and court.

What are the two standards of judicial review?

Reasonableness standard and correctness standard.

What is Alternative Dispute Resolution (ADR)?

Dispute resolution outside of court, which can be quicker and more private.

What are the types of ADR?

Negotiation, mediation, and arbitration.

What is the difference between mediation and arbitration?

Mediation involves a mediator assisting in discussions, while arbitration results in a binding decision by an arbitrator.

What is the effect of a successful appeal?

It may affirm, reverse, or vary the lower court's decision.

What is the significance of the rule of law in dispute resolution?

Disputes are solved based on law, not opinion.

What is a privative clause in judicial review?

A clause that protects a decision from being reviewed by a court.

What happens if a party believes litigation costs are excessive?

They can have the costs 'taxed' to determine their reasonableness.