Week # 3 - Administration of Justice (1)

8/9/2019 Week # 3 - Administration of Justice (1)

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Todays TopicTodays Topic

The Administration of Justice

02/08/2010 Accounting Law 1


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Todays Agenda1. The Court System

a. Federal Courts

b. Provincial Courts

2. Civil Procedure (Ontario)

a. Commencement & Pleadings

b. Discovery

c. Pre-trial & Trials

d. Enforcement3. Alternative Dispute Resolution (ADR)


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The Court System

In Canada, there are Federal andProvincial Courts.

1. Federal Court Systemincludes 5 courts:


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Federal Court System

1. Federal Court of Canada

2. Federal Court of Appeal

3.

Court Martial Appeal Court4. Tax Court of Canada

5. Supreme Court of Canada


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1)Federal Court of Canada

- This is a national trial court that hearscases dealing with:

1) Civil lawsuits against the Federal Govt or its agencies,departments or federal crown corporations

2) Private civil lawsuits regarding navigation, shipping and maritimematters

3) Intellectual Property

4) Prosecutions related to Federal Competition and Advertising Laws

5) Immigration & Citizen Proceedings


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2)Federal Court of Appeal2)Federal Court of Appeal

- This is an appeal court that hearsappeals from the Federal Court TrialDivision & Federal Administrative

Tribunals.

- This court sits in panels of 3 Judges



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3) Court Martial Appeal Court3) Court Martial Appeal Court

This is an appeal court that hears appeals

from military courts where members ofthe armed forces have committed anoffence.



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4) Tax Court of Canada4) Tax Court of Canada


This is an appeal court used for appealingdecisions regarding:

a) Income taxb) GST

c) Employment Insurance

d) Canada Pension Plane) Veterans Pensions


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4) Tax Court of Canada Contd

The Tax Court also hears Referencesfrom Canada Customs and RevenueAgency.

A Reference is used to receive aninterpretation of Legislation


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5) Supreme Court of Canada



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5) Supreme Court of Canada

Contd-This is the highest court in Canada

-It is the final court of appeal for Civil &

Criminal matters-It has jurisdiction to hear references onConstitutional Matters

-Appeals may come from ProvincialCourts of Appeal or Appeal courts withinthe federal system


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5) Supreme Court of Canada Contd

The court sits in panels of either 5, 7, 9 always inodd numbers.

The decision of the majority is the decision of thecourt.



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2) Provincial Courts

1) Ontario Superior Court of Justice

2) Ontario Court of Justice

3) Ontario Court of Appeal


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1) Ontario Superior Court of

Justice- This is the highest trial court in Ontario.It

deals with:- A) Private civil lawsuits

- B) Serious criminal prosecutions

- C) Family law proceedings related to divorce & relatedcustody/support & property division issues

- D)Wills and Estates ofDeceased



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Ontario Superior Court of JusticeOntario Superior Court of Justice

contdcontd

Trials may be with Judge alone, or withjudge and jury.

Civil jury trials have 6 jurors and require amajority of at least 5 -1 for a decision

Criminal jury trials have 12 jurors andrequire unanimity



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ContdContd

- The Small Claims Court is a branch of theSuperior Court.It deals with cases where aclaim is under $25,000. This has been raised

from $10,000.

- Cases are heard by a judge alone.

- Procedures are simplified so laypeople canrepresent themselves without lawyers



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ContdContd

- The Divisional Court is another Branch ofthe Superior Court.

- It is the intermediate appeal court thathears appeals of decisions in minor civilcases and reviews decisions of govtadministrative agencies.



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2) Ontario Court of Justice

It is the lowest trial court in Ontario &

deals with:

a) Young offenders

b) Minor criminal offences

c) Provincial offences, municipal bylawinfractions

d) Bail hearingse) Family Law matters involving

custody/support where no divorce involved


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Ontario Court of Justice contd

Legal proceedings at this courts areconducted by judge alone.

There are no jury trials.

Unlike all other Federal and Provincialcourt systems, the judges of this court areappointed by the Provincial govt.


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3) Ontario Court of Appeal

This is the final court of appeal for Ontario andthe highest court in the province.

It deals with Civil and Criminal matters.

Three judges typically sit to hear cases except in

in very important cases when 5 judges may sit.The majoritys decision determines the appeal.



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Civil Procedures (Ontario)

The five stages in a civil lawsuit:

1) Commencement and Pleadings

2) Discovery

3) Pretrial Conference

4) Trial and Judgment

5) Enforcement



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1) Pleadings

Plaintiffs initiate a civil lawsuit by issuingand serving a Statement of Claim.


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Statement of Claim

-A Statement of Claim gives notice to the defendantthat he/she are being sued.

-I

t gives the facts on which the claim is based.

-It specifies the order that the plaintiff wants the court toprovide.

-This statement is taken to the court clerk whosigns/affixes this is called Issuing of the Statement ofClaim.


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Service

Once the Statement of Claim is issued, it mustbe served.

Service is when the documents are personally

delivered by a Sheriff or Process Server.

A Sheriff is a govt employee. A Process Server

is a private business person.


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Defence-Once a statement of claim is served, the defendant must

prepare/deliver a Statement ofDefence within aspecified time.If he/she does not, the plaintiff will receivea default judgment

-A Statement ofDefence details the defence and showsthat the defendant is disputing the claim.

-A defendant may also add a Counterclaim to the

statement of defence.

-Once the plaintiff receives the Statement ofDefence,he/she deliver a Reply responding to the defence.


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2) Discovery

Discovery involves a number of methodsthrough which the parties gather informationabout the case.

Discovery has 2 purposes:

a) To clarify the differences between bothsides positions and possibly to agree on

certain facts.b) Promoting out of court settlement.


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Discovery Contd

There are 3 forms ofDiscovery:

1) Inspection ofDocuments

2) Oral Examination forDiscovery

3) Physical Examination independent physicalexamination of plaintiff for physical lawsuit.



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3) Pre-trial Conference- an informal conference between a judge and

lawyers from both sides.

- Purpose is to negotiate a settlement.

- Strengths/weaknesses of each sides case arereviewed and the judge can indicate how she/hewould decide the case.

- The judge at the pre-trial conference is NOT thejudge who would hear the case at trial.



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4) Trial

-It may with or without Jury.

-The plaintiff has the onus of proving his/hercase on a Balance of Probabilities



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Trial Contd

- If successful, the plaintiff will receive a Judgment and inmost cases receive an award of damages

- Damages = Money

- An award of Costs can also be granted. This allows forthe winning party to receive partial compensation for the

costs he/she spent on the lawsuit.



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5) Enforcement

When the Defendant fails to pay the

money owed from judgment, the plaintiffhas several means through which tocollect the damages.



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Enforcement Contd

1) Writ of Execution gives the Sheriff the power toseize assets owed by the defendant. These can besold at auction.

Once per year, the plaintiff can conduct a Judgment

Debtor Examination. Under oath, the defendant canbe questioned about his/her assets. This can becommunicated to the Sheriff.


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Enforcement Contd

2) Writ of Execution filed with the LandRegistry Office in an area where thedefendant owns real estate.

A lien will be created. The defendant will beprevented from selling the property withoutpaying the judgment.If judgment not paid

within a year, the real estate can be sold atauction.


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Enforcement Contd

Notice of Garnishment allows the plaintiff to collectmoney from third parties who owe money to thedefendant (ie. Employers, tenants, customers).

The third party, upon receiving this notice must paymoney to the court, which will distribute it to theplaintiff.



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Alternative Dispute Resolution

(ADR)Many parties prefer to have their disputes settled by

means other than trial.

Advantages include:1)Speed ADR can be a faster way to resolve the matter

than trial

2)Costs it is typically less expensive than courtproceedings

3)Confidentiality Trials are public events and couldresult in disclosure of confidential information. ADR isheld in private.



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ADR contd

4) Choice of Mediator/Arbitrator Parties can choosewho will adjudicate the matter. This is not possiblein the court system.

5)Preservation of Business Relationships ADR ismuch less adversarial than litigation.It is morelikely that parties can put the matter behind themonce it has been decided.



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ADR Contd

1. Mediation

2. Arbitration


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Mediation/Arbitration

1)Mediation a neutral third party is selected

by the parties. She/he does not decide thematter. Rather, the mediator attempts to helpthem to reach a settlement.

2) Arbitration a neutral third party isselected by the parties. He/she will decide thematter. The parties agree beforehand that

they will be bound by the arbitrators decision.


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The end!

for now