Chapter 4 PDF

Chapter 4 Thursday, September 12, 2024 11:16 AM The duty to consult and accommodate aboriginal peoples Section 35 of the constitution act, 1982 recognizes and affirms the existing aboriginal and trea rights of the aboriginal peoples of Canada ○ This section defines abor...

Chapter 4 Thursday, September 12, 2024 11:16 AM The duty to consult and accommodate aboriginal peoples Section 35 of the constitution act, 1982 recognizes and affirms the existing aboriginal and trea rights of the aboriginal peoples of Canada ○ This section defines aboriginal people as including Indian, Inuit and Metis ○ Treaty rights are rights that arise as a result of treaties entered into between Canada and Aboriginal peoples ○ Both federal and provincial crowns (but not private industry) have a duty to consult aboriginal peoples and accommodate their interests whenever a crown decision or actio may adversely affect aboriginal or treaty rights ○ The duty to consultation and accommodation rests with eh crown, but the failure to fulfi this duty adequately may end up being borne by business and indigenous communities ▪ Although the duty to consult rests with the crown and business are not legally liab for the crown's failure to consult, this does not mean businesses are not liable to indigenous communities in other aspects of their dealings with them ▪ Therefore businesses can be held liable for negligence, breach of contract, or fraud their dealings Question 4.2: Which statement best describes the duty to consult Aboriginal Peoples? ○ The duty arises even where the Aboriginal rights have not yet been proven in court. Alternative dispute resolution (ADR): There are other ways to resolve dispute besides litigation The most common methods of ADR are: ○ Negotiation, mediation and arbitration Negotiation: Problem solving process in which parties discuss their differences and attempt to reach mutua agreeable resolution Most common alternative dispute resolution method as it is cost effective and quick ○ It also preserves relationship between parties When negotiation is used it can be employed at any stage of a dispute, including on the eve of midway through trial.  Steps: 1) Pleading (Preligation step) Plaintiff- the party that has been harmed aty ○ Has to file a statement of claim ▪ *the issues that plaintiff is suing for, outlines the case ▪ File and serve (1 year) d You have to respond the claim or it will be a default judgement If you respond you can file a statement of defense The defendant may file a counter-claim on ○ Statement of defense is filed and served ill 2. Discovery – the process of disclosing evidence to support the claims in a lawsuit Each side has to provide relevant documents ble Discovery of witness Discovery of experts Sign a certificate of readiness signed by both sides d in 3. Trial and decision Either win or lose, appeal within 90 days. a. Trial – a formal hearing before a judge that results in a binding decision b. Burden of proof- the obligation of the plaintiff to prove its case c. Evidence – proof of presented in court to support a claim d. Decision – the judgement of the court that specifies which party is successful an e. Costs – legal expenses that a judge orders the loser to pay the winner 4. Enforcement a. Judgement debtor – the party ordered by the court to pay a specified amo the winner of a lawsuit Appeals: ally The process of arguing to higher court that a court decision is wrong ○ Appellant – the part who begins or files an appeal ○ Respondent – the part against whom an appeal is filed Contingency fee – a fee based on a percentage of the judgement awarded, and f or by the client to the lawyer only if the action is successful nd why ount to paid  agreeable resolution Most common alternative dispute resolution method as it is cost effective and quick ○ It also preserves relationship between parties When negotiation is used it can be employed at any stage of a dispute, including on the eve of midway through trial. It is not appropriate to negotiate as an example when insurance covers the risk that is the subj of the dispute ○ In this case the business must allow the insurer to conduct settlement negotiations When negotiating it is advisable to hire a lawyer, advocate or canceller who has the expertise t aid in the negotiation Saying sorry may not always be the best case ○ An apology might lead to an admission of liability that "could void an insurance policy, encourage a lawsuit, or result in a court holding the apologizer liable" ○ Jurisdiction in Canada have passed the broad apology legislation which covers statement admitting or implying wrongdoing as well as expression of regret or sympathy – provides that an apology ○ Some jurisdictions do not have a broad apology legislation and even in jurisdictions that it may not provide the protection expected ▪ In Alberta's court of Queen's bench has held that factual statements that accompa an apology are not part of the apology and are admissible in court ▪ As Mary Paterson of Osler, Hoskin & Harcourt observes: “In short, you can say you sorry, but you cannot say what you are sorry for without risking making an admissi If negotiation is successful the parties reach a settlement and they enter into a settlement agreement or release (an agreement where a party agrees to relinquish past, present and futu claims arising from a certain event) ○ They may also have a confidentiality clause as part of the release to prohibit parties of revealing the terms of the settlement and prevents others from using the settlement to advance claims against the parties. Question 4.3: Negotiation can be used at any stage of the litigation process, including trial: ○ True Question 4.5 It is unusual and not advisable for the defendant to insist that a confidentiality clause be incorporat into a settlement agreement or release ○ False Question 4.6 Dante is a claims adjuster with the insurer of a supermarket chain and has just concluded successfu negotiations with a customer who was injured as a result of slipping on ice in a store parking lot. W step should now take place? ○ The parties should now enter into a settlement or release agreement. Question 4.7 While negotiation can be used to resolve almost any type of dispute, what is one situation where a business should not proceed with negotiation?  ○ Appellant – the part who begins or files an appeal ○ Respondent – the part against whom an appeal is filed Contingency fee – a fee based on a percentage of the judgement awarded, and f or by the client to the lawyer only if the action is successful ject to ts s do, any u are ion.” ure ted ul Which a paid  negotiations with a customer who was injured as a result of slipping on ice in a store parking lot. W step should now take place? ○ The parties should now enter into a settlement or release agreement. Question 4.7 While negotiation can be used to resolve almost any type of dispute, what is one situation where a business should not proceed with negotiation? ○ when insurance covers the risk that is the subject of the dispute Mediation: An ADR process in which a neutral person known as a mediator assists the parties to reach a settlem of their dispute It is a popular method for resolving disputes for the following reasons: ○ Less expensive and quicker than more formal dispute methods ○ It is private and confidential if the parties choose ○ Helps to preserve relationships ○ Can result in a resolution tailored to the needs of the parties Mediators are commonly used for family disputes and divorce issues, but it is now commonly used settle commercial disputes Sometimes mediators are required or imposed ○ For example Ontario has a mandatory mediation program that requires many civil (non-crim cases to be referred to mediation before a trial is scheduled Mediators are often lawyers, retired judges, or anyone eligible to become a full-time/part-time practitioner Mediators do not work for either party but instead manage the process, organizes the discussion a clears up misunderstanding and helps reduce tensions between the parties. ○ They also do not impose a solutions, and parties must reach resolution voluntarily Mediation is a successful progress with 90% of cases being settled prior to trial. At the end of mediation parties will enter a settlement agreement setting out the essential terms o their agreement Question 4.8 Which statement accurately describes one of the features of alternative dispute resolution using mediatio a In mediation, a neutral third party is hired by the parties to make a binding ruling. b Mediation will always result in the resolution of the dispute. c Mediation is governed by formal rules established in legislation. d Mediation is usually less expensive and quicker than other more formal dispute resolution methods. Arbitration: Which a ment to minal) and of on? d Mediation is usually less expensive and quicker than other more formal dispute resolution methods. Arbitration: The method for resolving a dispute whereby a third person (or persons) appointed by parties makes a decision ○ Similar to litigation in that it usually involves a hearing where the parties or their representatives make submissions, and the resolution is outside the control of the partie ○ The parties in arbitration control the process in that they choose the rules for conduction the arbitrator, including the degree of formality, privacy, and finality of the decision, the timing and the arbitrator ○ Parties have an opportunity to review the arbitrators background prior to giving them decision making power and may choose one with expertise in their particular dispute, bu this is not available in a court action. Arbitration is used for commercial and business disputes Agreements to settle a dispute by arbitration are subject to arbitration legislation in the releva jurisdictions ○ The statutes oust the jurisdiction of the courts and provide general guidelines for the conduct of the arbitration ○ Canada maintains a roster of arbitrators, the key is to retain the services of qualified and skilled professionals experienced in both the type of dispute resolution process At the end of arbitration, the arbitrator will render a decision ○ The decision will depend on what the parties agreed to in their agreement to submit the dispute to arbitration ○ The final decision will usually be with no right of appeal ○ The parties may agree to preserve rights of appeal and may provide for an appeal proces ○ The award for arbitration unless overturned is binding (final and enforceable by courts) Question 4.11 Review Which statement best describes one of the features of alternative dispute resolution? a It is free because it is not necessary for the parties to hire lawyers. b It is only available before a lawsuit has been commenced. c It usually results in the faster resolution of a dispute than litigation alone. Your answer d It is only available when litigation has already been commenced. Question 4.13 es n e ut ant d e ss  Your answer d It is only available when litigation has already been commenced. Question 4.13 Review Which statement describes one of the features of arbitration? a Arbitration can be adopted at any point in a dispute if the parties agree. Your answer b Arbitration is the norm in consumer contracts. c Arbitration agreements never preclude one of the parties from suing instead of arbitrating. d Arbitrators must meet certain mandatory qualifications. Litigation process: Litigation arises when one party brings a legal action against another A plaintiff or claimant (party which initiates a legal action against another) sues the insurer kno as defendant (the party being sued) Litigation should only be started when all other methods have failed and the claim cannot be abandoned ○ It can harm relationships and bring unwelcome publicity ○ Drains corporate resources, diverts operations from profitable business activities and cau stress for all the ones involved in the process ○ No guarantee of success in obtaining a favorable decision from the court or in collecting judgement from the defendant. ○ In short, it is expensive, slow and unpredictable. The claim is carried through the civil justice system and dictated by the procedural rules, mean rules that mandate such matters as: ○ what documents are to be filed with the court ○ And how trial will proceed Each province has specific time period within which to commence legal action ○ The limitation period will vary depending on the nature of lawsuit and the province in w the litigation will occur ○ Provinces like Ontario, New Brunswick, British Colombia, Saskatchewan, Nova Scotia and Manitoba have a limitation period of 2 years, meaning the action must be started within years when the cause is discovered. ○ Alberta has a limitation period of two years and an ultimate limitation period of 10 yrs. The reason for limitation is due to: own uses a ning which d n two  the litigation will occur ○ Provinces like Ontario, New Brunswick, British Colombia, Saskatchewan, Nova Scotia and Manitoba have a limitation period of 2 years, meaning the action must be started within years when the cause is discovered. ○ Alberta has a limitation period of two years and an ultimate limitation period of 10 yrs. The reason for limitation is due to: ○ Strong incentive for plaintiffs to advance their claims within a reasonable time ○ Prevents plaintiffs from advancing old claims in which evidence has been lost because tim has passed ○ Provides defendants with a time after which the threat or possibility of litigation comes t end. Question 4.14 Review What term refers to the crucial rules in each province that set out specific time periods within which to commence a lawsuit? a deadlines b limitation periods Your answer c initiation periods d limit of liability periods Class Action Lawsuits: A class action is a proceeding brought by a representative plaintiff on behalf of, or for the bene of a class of persons having similar claims against the same defendant ○ This is to improve access to justice by enabling claimants to combine their resources in o action. A class action can only proceed if a judge approves of it The legislation enables a class action to be certified if: ○ The pleadings disclose a cause of action ○ There is an identifiable class of two or more persons ○ The claims of the class raise issues that are common to all class members ○ The class proceeding is the preferable procedure for the resolution of the common issue ○ There is a representative plaintiff who fairly and adequately represents the interests of t class and who does not have a conflicting interest with other class members An advantage of class action in Canada is that class actions make it less onerous for individuals seek redress against large companies, but also forcing companies to change behaviors in a pos way Question 4.16 Review Which statement describes one of the advantages of class action lawsuits? Select an answer and submit. For keyboard navigation, use the up/down arrow keys to select an answer. d n two me to an efit one es the s to sitive  seek redress against large companies, but also forcing companies to change behaviors in a pos way Question 4.16 Review Which statement describes one of the advantages of class action lawsuits? Select an answer and submit. For keyboard navigation, use the up/down arrow keys to select an answer. a Claimants avoid having to pay legal costs if they lose the lawsuit. b Equal compensation for all claimants is guaranteed. c Risk for companies is reduced by having the claims of all claimants resolved at once. d The process is less onerous for individuals seeking redress from large companies. Pleadings: Involves the exchange of the formal documents outlining the basis of the suit Plaintiff will initiate the action by preparing a document that contains the allegations to suppo the claim. The claim will also state the insured had made demand for payment of the loss from the insure under the policy and that the insurer had refused to do so in breach of policy This initial document is a notice of the claim and is registered or "filed", with the appropriate c office ○ It is then delivered to the party being sued (defendant) through a process known as serv The first stage does not include evidence, but outlines key points the plaintiff needs to prove a trial in order to succeed. If the defendant does not respond to the claim within the allowed time, then they are admittin the claim ○ If they have no defense to the claim, they may choose to allow the plaintiff to "win" the case/ If the defendant does respond, they will seek legal advice and prepare a formal response to th claim known as defence. ○ In this case the lawyer may allow the defendant longer than the minimum period in whic prepare the defense ○ The statement of defense would then state that the loss did not arise as a result of accid but as a result of poor maintenance. ○ The defendant can also file a counterclaim against the plaintiff in the appropriate case ▪ Ex when the defendant is sued for a vehicle accident resulting in injury of the plain the defendant can file a counterclaim alleging the plaintiff caused the accident and injury to defendant. Question 4.17 Review sitive ort er court vice at ng he ch to dent ntiff, d  ▪ Ex when the defendant is sued for a vehicle accident resulting in injury of the plain the defendant can file a counterclaim alleging the plaintiff caused the accident and injury to defendant. Question 4.17 Review What type of information is normally exchanged in the pleadings stage of a lawsuit? a the documents the parties intend to use to prove their claims b the evidence the parties will use to prove their claims c the allegations supporting the claim and the amount of the loss being claimed Your answer d the names and addresses of the witnesses to the event giving rise to the dispute Discovery: Once the claims have been clarified, the suit proceeds to the second stage known as discovery Both parties must now reveal the facts to support their allegations The time frame of this stage is undefined as it depends on the complexity of the case The discovery stage is to test the strength of the opposing positions and parties will reach a compromise ○ At this point, initiatives in various provinces come into play for the purpose of clearing th backlogs in the courts and streamlining the litigation process ○ These initiatives require the parties involved in litigation to engage in a formal attempt t resolve their dispute before it actually goes to court ○ These attempts my require parties to engage in process of mediation to avoid a trial ○ In many jurisdictions the parties can proceeds to trial only when mediation phase is complete Question 4.18 Which of the following is one of the purposes of the discovery phase of a lawsuit? a to give each side an opportunity to convince the judge that their side should win the lawsuit b to allow each side to make submissions to the judge regarding who should bear the costs of the litigation c to ensure that each side has enough evidence to satisfy the burden of proof d to test the strength of each position so that the parties will be encouraged to reach a compromise ntiff, d y he to n to allow each side to make submissions to the judge regarding who should bear the costs of the litigation c to ensure that each side has enough evidence to satisfy the burden of proof d to test the strength of each position so that the parties will be encouraged to reach a compromise Trial and Decision: If there is no settlement in the discovery stage, the plaintiff an make a motion for summary judgment (procedure which allows a party to obtain judgement on all or part of a claim withou having to proceed to trial) or they ca proceed to trial In a summary application, the parties avoid oral testimony in court and the judge decides the c based on written evidence submitted by the parties ○ The judge then decides if they are satisfied that there is no genuine issue requiring trial, the case should proceed to trial. ○ The timing of trial depends of availability of courts ○ Most trials will proceed with a single judge no jury ▪ Jury trials are available for commercial matters, but jury can be opposed if the case deemed too complex for a jury to understand During trial the burden of proof falls on the plaintiff ○ Must introduce evidence to prove that its version of events is more likely true, known as proving the case on the balance of probabilities". The defendant can challenge the plaintiff's witnesses and documents and to introduce its own account of events to oppose the claim Judge must judge both sides of evidence provided and deem what law will be relevant to apply towards the case. ○ The decision by the judge will contain the judge's resolution of the case, and who must p how much to whom based on proper justification. Monetary awards can include basic amount of the claim plus interest and in the usual case, the legal costs of the successful party ○ Costs are awarded by the judge based on a predetermined scale combined by the judge' view of the complexity of the case ○ In Alberta costs typically only cover up to about one third of the successful party's actual legal costs. ○ Even successful litigation involves expense In some cases where the conduct of the losing party has been seriously objectionable, the cour may award what are known as solicitor and client costs. ○ Reflects actual legal expenses incurred by the successful party so that they are fully indemnified for their litigation expenses, this is known as solicitor and client costs. Question 4.19 Review What is the role of the judge when presiding over a trial in a private or civil lawsuit? A. to help the parties achieve a result that is satisfactory to each side n ut case or if e is s" n y pay e 's l rt Question 4.19 Review What is the role of the judge when presiding over a trial in a private or civil lawsuit? A. to help the parties achieve a result that is satisfactory to each side b to determine if the plaintiff has met the burden of proof and is entitled to the remedy it sought Your answer c to determine if the plaintiff has proven their case beyond a reasonable doubt d to ensure that each side presents all of their evidence at the trial and to cross-examine the witnesses of e side Enforcement: The fourth and final stage of the litigation process if the enforcement of the judgement awarde to the winning party The judge issues a judgement for a certain amount of money which can be enforced against th loser, now known as the judgement debtor. If the judgement debtor refuses to pay the judgement, court officials will assist in seizing and selling the assets of the debtor ○ However, laws in every jurisdiction limit the extent to which the winning party can take assets when the losing party is a human being rather than a corporation to ensure the individual is not left penniless. Question 4.21 Carter Industries Inc has just won its trial in which it sued a former client for non-payment of an account. What is the most likely consequence of Carter’s success in the trial? a Carter Industries Inc will now immediately receive the outstanding payment from the former client. b Carter Industries Inc will automatically receive payment for all of its legal costs. c Carter Industries Inc is now a judgment creditor and can take steps to enforce the judgment against the former client. Your answer d Carter Industries Inc now has two years to collect its judgment, after which the judgment will expire. Appeal: A party who does not wish to accept the trial decision can appeal to the next court hierarchy ○ Must be initiated within a specific time period (30 days) each ed he Carter Industries Inc now has two years to collect its judgment, after which the judgment will expire. Appeal: A party who does not wish to accept the trial decision can appeal to the next court hierarchy ○ Must be initiated within a specific time period (30 days) Disadvantages of starting an appeal: ○ Limited chance of success ○ Not a rehearing of the case, but just an opportunity to argue the trial decision was erroneous ○ Not possible to dispute the conclusions regarding what events transpired between the parties, but only to dispute the judge's understanding and application of law Appeals at higher levels are normally conducted by a panel of at least three judges ○ No new evidence is presented A lawyer will represent the appellant (who makes the appeal) and another represents the respondent (who defends the appeal) After the court of appeal rules, the unsuccessful party can consider a further appeal to the Supreme court of Canada ○ Must obtain leave from the supreme court to proceed with that appeal ○ Only successful is the case involves a matter of "public importance" or "important issue o law" Question 4.23 Review What is the name of the party that begins or files an appeal? a defendant b respondent c litigant d appellant of