Law 294 - Chapter 2

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Law 294 - Chapter 2
2010-12-06 17:47:48

Litigation and ADR
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  1. Who is able to use Canadian courts?
    All adults, even if they aren't Canadian.
  2. Who represents children in the courts?
    A litigation guardian.
  3. What is a class action?
    A single person, or small group, to sue on behlaf of a larger group of claimants.
  4. True or false.

    Class actions are becoming more popular in Canada.
  5. Does the threat of a class action prevent a wrong happening in the first place?
  6. Can class actions save society money?
    Yeah, it is cheaper to do one huge claim then to do thousands of little claims.
  7. What are the requirements for a class action to occur?
    1. Common issues - Same wrong doing, does not have to be affected in the same way.

    2. Representative plaintiff - Must have a workable plan for fair representation.

    3. Notification - Potential members of the class action must be notified. Automactically included if haven't opted out within a certain length of time.

    4. Preferable procedure - Court must think that a class action is prefered.

    5. Certification - Represents the court's decision to allow various claims to be joined together and proceed as a class action.
  8. Can you represent yourself in court?
    Of course.
  9. Why might you use a lawyer?
    They have graduated from lay school, apprenticed, and passed a bar.They are confidential and privileged. They have professional liability insurance which allows a client to recieve compensation if a lawyer acts carelessly.
  10. What is a paralegal?
    NOT A LAWYER, but provides legal advice and services.
  11. What are some negatives about a paralegal?
    • No licence.
    • Have no formal training.
    • Not regulated by a governing body.
    • No detailed code of conduct.
    • Not required to carry liability insurance.
  12. What are pleadings?
    The documents that are used to indentify the issues and clairify the nature of a dispute.
  13. Who is the plaintiff?
    The person making the complaint.
  14. Who is the defendant?
    The person whom the complaint is being against
  15. What is a limitation peroid?
    A period of time within an action can be started.

    • Claims in contract are 6 years.
    • Claims in tort are 2 years.
  16. Why is there a limitation period?
    Memories fade and evidence is lost.

    Unfair to allow the plaintiff to hole the threat of litigation over the defendant forever.
  17. What is a statement of a claim?
    A document in which the plaintiff outlines the nature of the complaint?
  18. What is a statement of defence?
    A document in which the defendant sets out its verison of the facts and indicates how it intends to deny the claim.
  19. What is a counterclaim?
    A claim that the defendant makes against the plaintiff.
  20. What is a reply?
    A document in which a party responds to a statement of defence.
  21. What is a demand for particulars?
    Requires the other side to provide additional information.
  22. What is an examination for discovery?
    A process in which the parties ask each other questions in order to obtain information about their case.
  23. What is a settlement?
    When the parties agree to resolve their dispte out of court.
  24. What is a pre-trial conference?
    A meeting that occurs between the parties and a judge.
  25. What is mediation?
    A process in which a neutral person helps the parties reach an agreement.
  26. What a mediator?
    The nutral party in a mediation.
  27. What is evidence?
    Information that is provided in support of an argument.
  28. What is the diference between an ordinary witness and an expert witness?
    Ordinary witness testifies about facts they know first-hand (what they saw/heard). Expert witness provides information and opinions based on the evidence.
  29. What is hearsay evidence?
    Infromation that a witness heard from another person.
  30. What are 3 popular remedies?

    Prision sentence

    Conditional sentence
  31. What is a conditional sentence?
    Allows the criminal to serve time in their own houses.
  32. What is a judgment debtor?
    Defendant who has been found liable and ordered to pay money to the plaintiff.
  33. What is an appeal court?
    Decides if a mistake was made in the court below.
  34. Who is the appellant?
    The party who attacks the decision of the lower court.
  35. Who is the respondent?
    The party that defends the decision of the lower court.
  36. How does the government support the court system?
    Through the collection of taxes.
  37. What is a contingency fee agreement?
    A client only pays their lawyer only if the lawsuit is successful. Usually is about 25% - 40% of everything won.
  38. What is the highest court in Canada?
    The Supreme Court of Canada.
  39. How many members does the Supreme Court of Canada have? How are they appointed?
    9 members, Chief of Justice and 8 others appointed by the federal government.
  40. Does each province and territory have their own court of appeal? How are they appointed?
    Yes mam'm. By the federal government.
  41. Does the federal government appoint judegs to the superior court in each province and territory?
    You betcha.
  42. What kind of cases does the federal court see?
    Only cases that deal with the federal government.
  43. Who appoints the members of the provincial court?
    Provincal government.
  44. What 4 types of cases do the Provincial courts see?
    1. Small claims

    2. Family matters

    3. Youth matters

    4. Most criminal cases
  45. What is a small claims court?
    A type of provincal court that deals with disputes involving limited amounts of money?
  46. Why are small claims court popular with business people?
    They are faster, simpler and less expensive.
  47. What are some drawbacks to small claims court?
    Geographical limits - plaintiff must sue where the relevant happened or where the defendant lives or carries on business.

    Types of claims - Only limited amount of money or the return of property that it already owns. Cannot evict tenants or grant divorces.

    Types of remedies - can only order payment or to hand over property that the plaintiff already owns.

    Monetary limits - In BC can only sue for up to $25,000.
  48. What is a doctrine of precedent?
    Requires a court to follow any other court that is above it in a hierarchy.
  49. Does the Supreme Court of Canada have to obey any other court?
    No, it is boss bitches.
  50. Which courts must the Superior Courts of Province A obey?
    Superior Court of Province A must obey the Court of Appeal of Province A and the Supreme Court of Canada.
  51. Does the Superior Court of Province A have to obey the Appeal Division of the Federal Court?
  52. Can a decision be persuasive even if it comes from a lower court?
  53. What is a ADR?
    Alternative dispute resolution, any process that allows the parties to resolve their issues without going to court.
  54. What are the 3 main types of ADR?
    1. Negotiation

    2. Mediation

    3. Arbitration
  55. What is negotiation?
    Discussion aimed at settling a dispute.
  56. What are some advantages and disadvantages of negotiation?
    • Quicker, less complicated, less expensive.
    • Parties control outcome.
    • Parties remain on good terms.
    • Avoids bad publicity.

    • Might not be possible.
    • Drag out matter.
    • Not equal bargianing power.
    • Confidentiality is not desirable.
    • No guarantee of success.
  57. Do the parties have to listen to the mediation?
    No, they can say fuck you and walk out.
  58. What is arbitration?
    Arbitrator tells the parties what to do.
  59. Who is an arbitrator?
    A neutral third party.
  60. Do the parties have to listen to the arbitration?
  61. Does an arbitrator have greater expertise than a judge?