part 1 – introduction to the law chapter 2 – the judicial system and alternative dispute...

Part 1 – Introduction to the Law

Chapter 2 – The Judicial System and Alternative

Dispute Resolution

Prepared by Michael Bozzo, Mohawk College

© 2015 McGraw-Hill Ryerson Limited 2-1

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


Courts roleDecide disputesInterpret the ConstitutionDecide division of powersInterpret contracts Determine responsibility and

damages for loss

Introduction


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


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


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


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


Structure

Federal CourtsDeals with federal matters under federal

government jurisdiction Admiralty, patents, tax, trademark,

immigration, copyrightStructure

Federal Court Trial Division Federal Court of Appeal


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


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


Criminal Courts

Criminal Appeals


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


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


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


Appeal Courts


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


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


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



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



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



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


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


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


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


An action where a single person represents the interests of a group, who will share in any reward


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


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


Alternative Dispute ResolutionAlternatives to the courts

TypesMediationArbitration○ Commercial arbitration○ Labour arbitration

AdvantagesQuicker, cheaper, confidentiality

ADR


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


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


SUMMARY

part 1 – introduction to the law chapter 2 – the judicial system and alternative dispute...

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