Copyright © 2008 Pearson Education Canada3-1 Chapter 3: The Resolution of Disputes—The Courts and...

Copyright © 2008 Pearson Education Canada 3-1

Chapter 3:Chapter 3:The Resolution of The Resolution of

Disputes—The Disputes—The Courts and Courts and

Alternatives to Alternatives to LitigationLitigation


The Courts The Courts

Criminal & Civil FunctionsCriminal & Civil Functions Trial & Appellate FunctionsTrial & Appellate Functions Federal CourtsFederal Courts Provincial CourtsProvincial Courts Administrative TribunalsAdministrative Tribunals


Criminal Function Criminal Function

In a criminal case, the state (crown) In a criminal case, the state (crown) prosecutes the accused who is convicted prosecutes the accused who is convicted only when state proves the case beyond only when state proves the case beyond a reasonable doubta reasonable doubt

Victims are merely witnesses at the trialVictims are merely witnesses at the trial The state assesses and enforces The state assesses and enforces

penaltiespenalties Victims are not compensated for their Victims are not compensated for their

injuries injuries


Civil Function Civil Function

Private individuals ask the court to Private individuals ask the court to adjudicate a dispute.adjudicate a dispute.

Court's decision is based on balance of Court's decision is based on balance of probabilitiesprobabilities

Court assesses liability and can enforce Court assesses liability and can enforce judgmentjudgment

Compensation and remedies imposed on Compensation and remedies imposed on defendantdefendant


Court Hierarchy Court Hierarchy Supreme Court of Supreme Court of

CanadaCanada

Federal Court of Federal Court of AppealAppeal

Court of Appeal of the Court of Appeal of the ProvinceProvince

Federal Trial CourtFederal Trial Court Superior Trial Court of Superior Trial Court of the Provincethe Province

Provincial CourtsProvincial Courts


Process of Civil Litigation Process of Civil Litigation

Pre-trial ProceedingsPre-trial Proceedings PleadingsPleadings

Writ of summons (plaintiff)Writ of summons (plaintiff) Appearance (defendant)Appearance (defendant) Statement of claim / Statement of defenceStatement of claim / Statement of defence CounterclaimCounterclaim

Chambers ApplicationsChambers Applications


Pre-trial Proceedings/2 Pre-trial Proceedings/2

DiscoveryDiscovery Of documentsOf documents Examination of witnessesExamination of witnesses

Payment into courtPayment into court Purpose of Pre-trial ProceedingsPurpose of Pre-trial Proceedings

To focus dispute and provide opportunity To focus dispute and provide opportunity and encouragement to settle before trialand encouragement to settle before trial


Question for Discussion Question for Discussion

The pre-trial process is long and involved The pre-trial process is long and involved and adds greatly to the expense of and adds greatly to the expense of having a matter decided by the court.having a matter decided by the court.

Consider the advantages and Consider the advantages and disadvantages of the various steps and disadvantages of the various steps and suggest how they might be simplified.suggest how they might be simplified.


Trial Trial

Plaintiff presents casePlaintiff presents case Burden of proof rests with plaintiffBurden of proof rests with plaintiff Cross examinationCross examination

Rules of evidence must be followedRules of evidence must be followed Defendant presents caseDefendant presents case Jury decides on the factsJury decides on the facts Judge determines the lawJudge determines the law


Judgment Judgment

CostsCosts Party and party v. Solicitor/client costsParty and party v. Solicitor/client costs

RemediesRemedies Damages (monetary compensation)Damages (monetary compensation)

• General and specialGeneral and special• Punitive damages may also be awardedPunitive damages may also be awarded

Accounting, injunction, specific Accounting, injunction, specific performanceperformance

Declaration of the applicable lawDeclaration of the applicable law


Enforcement Enforcement

Examination in aid of executionExamination in aid of execution Seizure of propertySeizure of property Garnishment of wagesGarnishment of wages Attachment of debtAttachment of debt Prejudgment remediesPrejudgment remedies InjunctionInjunction Limitation periodsLimitation periods



Consider the phrase, “justice delayed is Consider the phrase, “justice delayed is justice denied,” and apply it to the justice denied,” and apply it to the process of civil litigation in Canada.process of civil litigation in Canada.

Complex procedure of court adjudicationComplex procedure of court adjudication Expense and delay because of an Expense and delay because of an

overburdened court systemoverburdened court system Do the process and the system serve or Do the process and the system serve or

defeat the ends of justice?defeat the ends of justice?


Regulatory Role of Government Regulatory Role of Government

Executive branch of government is Executive branch of government is responsible for regulatory bodies created responsible for regulatory bodies created by legislation.by legislation.

Complaints against the actions of Complaints against the actions of regulatory agencies are usually heard by regulatory agencies are usually heard by administrative tribunals.administrative tribunals.

Administrative tribunals must function by Administrative tribunals must function by the rules of natural justicethe rules of natural justice


Administrative Law Administrative Law

Administrative tribunals include Administrative tribunals include government regulatory bodies or their government regulatory bodies or their agents that make decisions affecting the agents that make decisions affecting the rights of others.rights of others.

The rights of people facing an The rights of people facing an administrative tribunal are covered by administrative tribunal are covered by administrative law administrative law


Authority of Decision Maker Authority of Decision Maker

Rule of law - government officials must Rule of law - government officials must rely on legislation to authorize their acts. rely on legislation to authorize their acts. They cannot interfere with a person’s They cannot interfere with a person’s rights by virtue of their position.rights by virtue of their position.

Ultra vires v. Intra viresUltra vires v. Intra vires Authority of decision maker may be Authority of decision maker may be

challengedchallenged Validity of statute or regulation can be Validity of statute or regulation can be

determined by the courtsdetermined by the courts


Statutory Interpretation Statutory Interpretation

Determination of whether a rule has Determination of whether a rule has been properly imposed is based on been properly imposed is based on judicial interpretation of the statute.judicial interpretation of the statute.


Statutory Interpretation/2 Statutory Interpretation/2

Rules of interpretation include:Rules of interpretation include: Golden rule - reasonable interpretationGolden rule - reasonable interpretation Mischief rule - specific purpose of rule Mischief rule - specific purpose of rule

identifiedidentified Strict interpretation - must be clear and Strict interpretation - must be clear and

unambiguousunambiguous


Rules of Natural Justice Rules of Natural Justice

Fair hearing - complainant must have Fair hearing - complainant must have notice and opportunity to be heardnotice and opportunity to be heard

Heard by decision maker - the people Heard by decision maker - the people making the decision must be the same making the decision must be the same ones hearing the evidenceones hearing the evidence

Impartiality - no bias on part of decision Impartiality - no bias on part of decision makersmakers


Judicial Review Judicial Review

Courts review - not the decision but Courts review - not the decision but the process by which it was made.the process by which it was made.

All other remedies must be All other remedies must be exhausted before courts will hear exhausted before courts will hear the casethe case


Judicial Review/2 Judicial Review/2

Hears challenges to authority of decision Hears challenges to authority of decision makermaker

Questions of procedural fairnessQuestions of procedural fairness Decision and remedy go beyond power Decision and remedy go beyond power

set out in legislationset out in legislation Decisions that involve errors of lawDecisions that involve errors of law


Methods of Judicial Review Methods of Judicial Review

Prerogative Writs - available when a Prerogative Writs - available when a duty to act fairly has not been metduty to act fairly has not been met

Certiorari nullifies administrator’s Certiorari nullifies administrator’s decisiondecision

Prohibition - prevents a decision being Prohibition - prevents a decision being mademade

Mandamus - forces a decisionMandamus - forces a decision


Methods of Judicial Review/2 Methods of Judicial Review/2

Declaratory Judgment - declaration Declaratory Judgment - declaration of the lawof the law

After decision has been made, court After decision has been made, court may assess damages, grant may assess damages, grant compensationcompensation


Methods of Judicial Review/3 Methods of Judicial Review/3

Injunction - a court order to stop breaking Injunction - a court order to stop breaking the lawthe law

Inappropriate when damage has already Inappropriate when damage has already occurredoccurred

Government officers may be immune from Government officers may be immune from injunctionsinjunctions

Specific statute may modify rights. Specific statute may modify rights. Judicial review process may be Judicial review process may be

streamlined by statutestreamlined by statute


Privative ClausesPrivative Clauses

Statutes contain provisions that make it Statutes contain provisions that make it difficult for courts to conduct reviewsdifficult for courts to conduct reviews

Courts deem them not to apply when the Courts deem them not to apply when the board has gone beyond its jurisdiction or board has gone beyond its jurisdiction or authorityauthority

Court retains right to interpret statutory Court retains right to interpret statutory provisionsprovisions

Subject also to the CharterSubject also to the Charter Court will only interfere where serious Court will only interfere where serious

problemproblem



Administrators who make decisions Administrators who make decisions affecting individuals must follow affecting individuals must follow minimum standards of procedural minimum standards of procedural fairness.fairness.

Is this appropriate or should Is this appropriate or should administrators remain unfettered by administrators remain unfettered by these rules and procedures that are these rules and procedures that are more akin to the courts?more akin to the courts?


Alternative Dispute Resolution Alternative Dispute Resolution

Process for resolving disputes outside of Process for resolving disputes outside of the courtsthe courts

Main methodsMain methods NegotiationNegotiation MediationMediation ArbitrationArbitration


Alternative Dispute Resolution/2 Alternative Dispute Resolution/2

AdvantagesAdvantages Parties of dispute maintain control of the Parties of dispute maintain control of the

solutionsolution Disputants determine and schedule Disputants determine and schedule

resolution processesresolution processes Minimal costs associated with processMinimal costs associated with process Matters remain privateMatters remain private Preserves good willPreserves good will


Alternative Dispute Resolution/3 Alternative Dispute Resolution/3

DisadvantagesDisadvantages Courts have more power to extract Courts have more power to extract

informationinformation Fair process cannot be ensuredFair process cannot be ensured Decisions do not follow precedentDecisions do not follow precedent Agreements may not be enforceableAgreements may not be enforceable No public record of dispute or decisionNo public record of dispute or decision


Negotiation Negotiation

Parties discuss the problem with each Parties discuss the problem with each other in order to find a solutionother in order to find a solution

Process requires cooperation and Process requires cooperation and compromisecompromise

Good communication skillsGood communication skills May be conducted through May be conducted through

representativesrepresentatives Process may enhance relationshipProcess may enhance relationship Agreement may not be legally bindingAgreement may not be legally binding


Mediation Mediation

Neutral outsider helps party settle the Neutral outsider helps party settle the disputedispute

Communication facilitated by mediatorCommunication facilitated by mediator Finds common groundFinds common ground Encourages concessionsEncourages concessions

Mediator does not make decisionMediator does not make decision Mediation sometimes required before Mediation sometimes required before

court will hear casecourt will hear case Court may affirm mediated resolutionCourt may affirm mediated resolution


Mediation/2 Mediation/2

Not the process to use when there is an Not the process to use when there is an imbalance of power or where blame or imbalance of power or where blame or liability for injury must be determinedliability for injury must be determined

Parties must be willing to disclose Parties must be willing to disclose informationinformation

Forms of mediated process includeForms of mediated process include Mini-trialsMini-trials Summary jury trialsSummary jury trials


Arbitration Arbitration

Parties agree on an independent third Parties agree on an independent third party to make a decision that will be party to make a decision that will be binding on the disputantsbinding on the disputants

Often required in contractOften required in contract Arbitrators are specialists in the matter Arbitrators are specialists in the matter

under disputeunder dispute Procedure must be fairProcedure must be fair


Arbitration/2 Arbitration/2

Decision of arbitrator is binding on the Decision of arbitrator is binding on the partiesparties

Decision cannot be appealed although Decision cannot be appealed although procedure may be reviewed by the procedure may be reviewed by the courtscourts

Process is private, faster, less costly Process is private, faster, less costly than litigation, but more formal and more than litigation, but more formal and more adversarial than mediationadversarial than mediation



Consider the advantages and Consider the advantages and disadvantages of alternative dispute disadvantages of alternative dispute resolution processes.resolution processes.

Would a businessperson benefit from Would a businessperson benefit from using such a process in a dispute over using such a process in a dispute over the delayed delivery of material required the delayed delivery of material required in the manufacturing process?in the manufacturing process?

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