Lecture 2 Class

The litigation process The court system Administrative tribunals Alternative dispute resolution

Fact Situation #1
You loaned a friend your laptop for one week. She accidentally deleted all your les. No backups. She says all she did was her homework and she did not access the internet. She says your laptop already had a virus and it also deleted all her work. No backups. Shes no longer your friend - You want to sue her

Pleadings
Who are the parties? What should be claimed? When? Consider limitation period Where? Court jurisdiction Why? Relate facts to the law

Limitation Period
Purpose? Modern trend: 2 years for contract and tort From when knew or ought to have known of claim late claim is generally unenforceable exceptions

Pleadings contd
Statement of claim Statement of defence Reply Counterclaim Defence to counterclaim Demand for particulars

Who can be sued?

Suppose shes only 17 years old Suppose shes mentally retarded Capacity to sue and to be sued

Representation
self-representation a fool for a client lawyer highly qualied but expensive paralegal now regulated and insured but only certain cases

ADR alternative dispute resolution

Negotiation Mediation Arbitration (sometimes written into the contract)

Preliminary court proceedings

Issue and serve claim Motion to appoint litigation guardian? Discovery Pre-trial conference

The Trial
Judge or Jury? Who will decide the case? Burden of proof How sure does the judge have to be? Criminal proof beyond a reasonable doubt close to 100% certainty Civil proof on a balance of probabilities just over 50% sure Why the different standards of proof? What questions are being answered? Who are the parties involved?

How is the case proved? Evidence

information provided by witnesses ordinary witnesses expert witnesses hearsay evidence usually inadmissible hear say second hand information

You won! Now try and collect

See example p.39 set a precedent? enforcement techniques garnish income seize and sell assets limits on how much can seize

You lost now pay up!

General rule - loser pays winners costs usually party-and-party costs - partial indemnity in Ontario exceptionally substantial indemnity Effect of offers to settle and costs Risks of litigation time and money

Fact situation #2
You bought a new video-game from GameStore for $100.You loaded the game on your computer but some of the graphics didnt work. A week later, the game appeared to have infected the graphics on all of your computer games. Later, you nd out that hundreds of other gamers had their computers affected in the same way. Everyone is complaining but GameStore refuses to help anyone

Class action
multiple claims joined together in one claim small claimants able to share costs of litigation against large defendant Must be certied by court

Class Actions: 5 Requirements

common issues among all class members representative plaintiff responsible for costs if fail notication to all potential members of the class so individuals can opt out preferable procedure to individual claims certication by court to allow class action to proceed

Contingency Fees
deferred fees = pay only after case is resolved often calculated at 25 - 40 percent of winnings effect of contingency fees costs and benets for the parties

Who Can Sue and Be Sued? contd

corporation - a type of legal person unincorporated association - not a type of legal person exception: trade unions generally can sue and be sued

Can you sue the government?

Common law rule: The Crown can do no wrong Why? Protects ofcials if act within their authority Exceptions: Statutes allow suing Crown in tort and contract Charter of Rights

Rule of law
decisions based on laws and not beliefs doctrine of precedent must follow court higher in same hierarchy other courts may be persuasive but not binding

Levels of court
Provincial court small claims court up to $25,000 Provincial offences court Superior court claims over $25,000 and serious offences Federal court immigration and tax litigation

Administrative tribunals
Eg. Landlord tenant board, business regulation, etc. quasi-judicial function strict rules of evidence typically do not apply tribunal usually selected on the basis of special knowledge

Judicial review of administrative decision

Reasonableness standard v. Correctness standard: Privative clause: That tribunals jurisdiction is nal and conclusive and not usually subject to judicial review Tribunal decision may nevertheless still be reviewed in court if tribunal or legislature acted contrary to the Constitution in setting up or exercising the administrative scheme

Appeals
Appellant and respondent No new evidence usually just errors of law Have odd number of judges, in case disagreement Afrm, reverse or vary a trial decision