Chapter 2 – The
Judicial System and Alternative
Dispute Resolution
© 2015 McGraw-Hill Ryerson Limited
Prepared by
Michael Bozzo, Mohawk College
2-1

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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
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 Courts role
 Decide disputes
 Interpret the Constitution
 Decide division of powers
 Interpret contracts
 Determine responsibility and damages for loss
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 Long period of development
 1794 Judicature Act
 1837 Court of Chancery
 1849 Court of Common Pleas
 1856 Merger of Queen’s Bench and
Common Pleas
 1867 BNA Act
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 Many reforms passed between 1873 and
1925
 Beginning of development of the Supreme
Court
 Gradual reduction in formal process
 1982 Charter of Rights and Freedoms
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 Jurisdiction – different courts with different jurisdictions
 Right or authority of a court to hear a matter
 Authority over the parties or the property or the matter
 Authority: 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
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 General Classifications
 Courts 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
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 Federal Courts
 Deals with federal matters under federal government jurisdiction
 Admiralty, patents, tax, trademark, immigration, copyright
 Structure
 Federal Court Trial Division
 Federal Court of Appeal
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 Provincial Courts
 Each province has authority to establish own system
 Variation in names and powers exist but overall similar in function
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Magistrate’s or Provincial Court
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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
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 Provincial Supreme Court
 Hears civil disputes over and above small claims matters or those matters specifically set in the superior court
 Civil Courts
 Deals with disputes between private persons
 Small Claims Courts
 Hear disputes up to a certain amount of money
 Amount varies by each province
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 Family Courts
 Not criminal courts in the ordinary sense
 Deal with domestic issues
 Support payments, custody issues
 Surrogate (Probate) Court
 Deals with administration of wills and estates
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 Civil Courts of Appeal
 Provincial Court of Appeal
 Hears appeals in each province from lower courts
 Supreme 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
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 Enforcement of Criminal law
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Usually same court that deals with civil matters
Minor or lesser offences dealt with by way of summary conviction rules
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Serious matters by way of indictment
Procedure
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Offence is read by crown
Accused makes a plea (guilty or not guilty)
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Guilty plea – speak to sentence and penalty imposed
Not guilty plea – hear evidence at trial and court makes a decision
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 Pleadings
 Written statements prepared by parties that set out facts and claims
 Plaintiff – party bringing an action
 Defendant – party defending an action
 Various documents
○ Statement of Claim or Defense
○ Writ of Summons
○ An Appearance
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 Close of Pleadings
 Once pleadings have been closed, either party sets it down for trial
 May require some form of attempt at dispute resolution before going to trial
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 Discovery
 Examinations 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
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 Trial (Procedure)
 Plaintiff opening
 Defendant opening
 Plaintiff presents evidence and calls witnesses
 Defendant can cross examine
 Defendant presents evidence and calls witnesses
 Plaintiff right to cross examine
 Parties sum up their cases
 Judge or jury deliberates to decide matter
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 2 Types
 Ordinary Witnesses
○ Give (direct) evidence of what they saw or heard
 Expert Witnesses
○ Recognized experts on a subject and give opinion evidence
 Medical experts, accountants,
 Best Evidence
○ Not allow “hearsay” evidence – what someone heard someone else say
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 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:
 Affirm
 Reverse
 Send back for new trial
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 Party Costs –
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 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 Costs
 Awarding entire legal expenses if in opinion of court for unwarranted suits or defenses
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 A lawyer’s fee payable on the condition of winning the case
 If the lawyer does not win the case, the lawyer does not get paid
 Practiced in the United States
 Pros: allows for greater access of justice for plaintiffs who would not otherwise be able to hire a lawyer
 Cons: encourages frivolous litigation and compromises a lawyer’s sense of justice in the search for profit
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 An action where a single person represents the interests of a group, who will share in any reward
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 The published decisions of the courts
 Found in different series of reports
 Case Citations
 Used by legal profession to identify cases as persuasive argument before the courts
 Set system of citation must be used
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 Purpose
 Boards or commissions charged with regulation of certain matters
 Tribunals powers set forth in statutes
 Limited to powers granted to them under statute
 Ad hoc tribunal
 Tribunal established to deal with a particular dispute between parties
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 Alternative Dispute Resolution
 Alternatives to the courts
 Types
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Mediation
Arbitration
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Commercial arbitration
Labour arbitration
 Advantages
 Quicker, cheaper, confidentiality
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 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
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Legal system evolutionary in nature
Purpose of judicial system is to ensure justice
Courts have jurisdiction based on
 Geographic;
 Subject matter; or
 Monetary amount
 Appeals court hear appeals from lower courts
 ADR is used often in business for the advantages it offers to litigation
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