Part 1 – Introduction to the Law
Chapter 2 – The Judicial System and Alternative
Dispute Resolution
Prepared by Michael Bozzo, Mohawk College
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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
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Courts roleDecide disputesInterpret the ConstitutionDecide division of powersInterpret contracts Determine responsibility and
damages for loss
Introduction
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Long period of development1794 Judicature Act1837 Court of Chancery1849 Court of Common Pleas1856 Merger of Queen’s Bench
and Common Pleas1867 BNA Act
Development of the Law Courts
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Many reforms passed between 1873 and 1925Beginning of development of the Supreme
CourtGradual reduction in formal process
1982 Charter of Rights and Freedoms
Early Law Reform
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Jurisdiction – different courts with different jurisdictionsRight or authority of a court to hear a matterAuthority over the parties or the property or the
matterAuthority: 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
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General ClassificationsCourts 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
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Structure
Federal CourtsDeals with federal matters under federal
government jurisdiction Admiralty, patents, tax, trademark,
immigration, copyrightStructure
Federal Court Trial Division Federal Court of Appeal
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Types of Courts
Provincial CourtsEach province has authority to
establish own systemVariation in names and powers exist
but overall similar in function
Types of Courts
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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
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Criminal Courts
Criminal Appeals
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Provincial Supreme CourtHears civil disputes over and above small claims
matters or those matters specifically set in the superior court
Civil CourtsDeals with disputes between private persons
Small Claims CourtsHear disputes up to a certain amount of moneyAmount varies by each province
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Other Courts
Family CourtsNot criminal courts in the ordinary senseDeal with domestic issuesSupport payments, custody issues
Surrogate (Probate) CourtDeals with administration of wills and
estates
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Other Courts
Civil Courts of AppealProvincial Court of Appeal
Hears appeals in each province from lower courtsSupreme 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
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Appeal Courts
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Civil Appeals
Enforcement of Criminal lawUsually same court that deals with civil mattersMinor or lesser offences dealt with by way of summary
conviction rulesSerious matters by way of indictmentProcedure○ 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
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PleadingsWritten statements prepared by parties that set
out facts and claimsPlaintiff – party bringing an actionDefendant – party defending an actionVarious documents○ Statement of Claim or Defense○ Writ of Summons○ An Appearance
Civil Court Procedure
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Close of PleadingsOnce pleadings have been closed,
either party sets it down for trialMay require some form of attempt at
dispute resolution before going to trial
Civil Court Procedure
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DiscoveryExaminations 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
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Trial (Procedure)Plaintiff openingDefendant openingPlaintiff presents evidence and calls witnessesDefendant can cross examineDefendant presents evidence and calls witnessesPlaintiff right to cross examineParties sum up their cases Judge or jury deliberates to decide matter
Civil Court Procedure
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2 TypesOrdinary Witnesses ○ Give (direct) evidence of what they saw or heard
Expert Witnesses○ Recognized experts on a subject and give
opinion evidenceMedical experts, accountants,
Best Evidence○ Not allow “hearsay” evidence – what someone
heard someone else say
Witnesses
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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:
AffirmReverseSend back for new trial
Appeals
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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 CostsAwarding entire legal expenses if in opinion of
court for unwarranted suits or defenses
Court Costs
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A lawyer’s fee payable on the condition of winning the caseIf the lawyer does not win the case, the lawyer does
not get paidPracticed in the United StatesPros: allows for greater access of justice for plaintiffs
who would not otherwise be able to hire a lawyerCons: encourages frivolous litigation and
compromises a lawyer’s sense of justice in the search for profit
Contingency Fees
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An action where a single person represents the interests of a group, who will share in any reward
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Class Actions
The published decisions of the courtsFound in different series of reports
Case CitationsUsed by legal profession to identify cases
as persuasive argument before the courtsSet system of citation must be used
Law Reports
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PurposeBoards or commissions charged with regulation of
certain matters Tribunals powers set forth in statutes Limited to powers granted to them under
statuteAd hoc tribunal
Tribunal established to deal with a particular dispute between parties
Administrative Tribunals
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Alternative Dispute ResolutionAlternatives to the courts
TypesMediationArbitration○ Commercial arbitration○ Labour arbitration
AdvantagesQuicker, cheaper, confidentiality
ADR
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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
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Legal system evolutionary in nature Purpose of judicial system is to ensure justice Courts have jurisdiction based on
Geographic;Subject matter; orMonetary amount
Appeals court hear appeals from lower courts ADR is used often in business for the
advantages it offers to litigation
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SUMMARY