Prepared by Douglas Peterson, University of Alberta 2-1 Part 1 – Introduction to the Law Chapter 2 – The Judicial System

Prepared by Douglas Peterson, Prepared by Douglas Peterson,

University of AlbertaUniversity of Alberta 2-2-11

Part 1 – Introduction to the Part 1 – Introduction to the LawLaw

Chapter 2 – The Chapter 2 – The Judicial SystemJudicial System

© 2006 McGraw-Hill Ryerson © 2006 McGraw-Hill Ryerson

LimitedLimited 2-2-22

Chapter 2 - OverviewChapter 2 - Overview

Courts Role in societyCourts Role in society Development of the Law CourtsDevelopment of the Law Courts Structure of the Judicial SystemStructure of the Judicial System

2222 Court procedureCourt procedure Administrative tribunalsAdministrative tribunals ADRADR Judicial appointmentJudicial appointment Legal professionLegal profession



IntroductionIntroduction

Courts roleCourts role Decide disputesDecide disputes Interpret the ConstitutionInterpret the Constitution Decide division of powersDecide division of powers Interpret contracts Interpret contracts Determine responsibility and damages for lossDetermine responsibility and damages for loss



Development of the Law CourtsDevelopment of the Law Courts

Long period of developmentLong period of development 1794 Judicature Act1794 Judicature Act 1837 Court of Chancery1837 Court of Chancery 1849 Court of Common Pleas1849 Court of Common Pleas 1856 Merger of Queen’s Bench and Common Pleas1856 Merger of Queen’s Bench and Common Pleas 1867 BNA Act1867 BNA Act



Early Law ReformEarly Law Reform

Many reforms passed between 1873 and 1925Many reforms passed between 1873 and 1925 Beginning of development of the Supreme CourtBeginning of development of the Supreme Court Gradual reduction in formal processGradual reduction in formal process

1982 Charter of Rights and Freedoms1982 Charter of Rights and Freedoms



Structure of Judicial SystemStructure of Judicial System

Jurisdiction – different courts with different Jurisdiction – different courts with different jurisdictionsjurisdictions Right or authority of a court to hear a matterRight or authority of a court to hear a matter Authority over the parties or the property or the matterAuthority over the parties or the property or the matter Authority: divided in different waysAuthority: divided in different ways

Monetary – up to a certain amountMonetary – up to a certain amount Geographic – province or areaGeographic – province or area



StructureStructure

General ClassificationsGeneral Classifications Courts of Original JurisdictionCourts of Original Jurisdiction

Case heard for first time (trial courts)Case heard for first time (trial courts) Courts of AppealCourts of Appeal

Hear appeals from trial courtsHear appeals from trial courts Superior or higher courtsSuperior or higher courts Do not hear evidenceDo not hear evidence Look for errors of law Look for errors of law



Types of CourtsTypes of Courts

Federal CourtsFederal Courts Deals with federal matters under federal government Deals with federal matters under federal government

jurisdictionjurisdiction Admiralty, patents, tax, trademark, immigration, copyrightAdmiralty, patents, tax, trademark, immigration, copyright

StructureStructure Federal Court Trial DivisionFederal Court Trial Division Federal Court of AppealFederal Court of Appeal



Types of CourtsTypes of Courts

Provincial CourtsProvincial Courts Each province has authority to establish own systemEach province has authority to establish own system Variation in names and powers exist but overall similar Variation in names and powers exist but overall similar

in functionin function



Criminal CourtsCriminal Courts

Magistrate’s or Provincial CourtMagistrate’s or Provincial Court Court of original jurisdictionCourt of original jurisdiction Initially deals with all criminal mattersInitially deals with all criminal matters Holds preliminary hearings of more serious crimes to Holds preliminary hearings of more serious crimes to

determine if sufficient evidence exists to send it to a determine if sufficient evidence exists to send it to a higher courthigher court

Provincial Supreme CourtProvincial Supreme Court Hears more serious criminal mattersHears more serious criminal matters

Youth CourtsYouth Courts Hears cases of youth who commit crimesHears cases of youth who commit crimes 12 years or older to under 18 years old12 years or older to under 18 years old

Criminal Courts of AppealCriminal Courts of Appeal Hear appeals from lower courtsHear appeals from lower courts



Other CourtsOther Courts

Provincial Supreme CourtProvincial Supreme Court Hears civil disputes over and above small claims Hears civil disputes over and above small claims

matters or those matters specifically set in the superior matters or those matters specifically set in the superior courtcourt

Civil CourtsCivil Courts Deals with disputes between private personsDeals with disputes between private persons

Small Claims CourtsSmall Claims Courts Hear disputes up to a certain amount of moneyHear disputes up to a certain amount of money Amount varies by each provinceAmount varies by each province



Other CourtsOther Courts

Family CourtsFamily Courts Not criminal courts in the ordinary senseNot criminal courts in the ordinary sense Deal with domestic issuesDeal with domestic issues Support payments, custody issuesSupport payments, custody issues

Surrogate (Probate) CourtSurrogate (Probate) Court Deals with administration of wills and estatesDeals with administration of wills and estates



Appeal CourtsAppeal Courts

Civil Courts of AppealCivil Courts of Appeal Provincial Court of AppealProvincial Court of Appeal

Hears appeals in each province from lower courtsHears appeals in each province from lower courts Supreme Court of CanadaSupreme Court of Canada

Highest court in CanadaHighest court in Canada Hears all appeals from all courts including federal courtHears all appeals from all courts including federal court Right to appeal is restricted, leave (permission) by the Right to appeal is restricted, leave (permission) by the

court must be grantedcourt must be granted



Criminal Court ProcedureCriminal Court Procedure

Enforcement of Criminal lawEnforcement of Criminal law Usually same court that deals with civil mattersUsually same court that deals with civil matters Minor or lesser offences dealt with by way of summary Minor or lesser offences dealt with by way of summary

conviction rulesconviction rules Serious matters by way of indictmentSerious matters by way of indictment ProcedureProcedure

Offence is read by crownOffence is read by crown Accused makes a plea (guilty or not guilty)Accused makes a plea (guilty or not guilty) Guilty plea – speak to sentence and penalty imposedGuilty plea – speak to sentence and penalty imposed Not guilty plea – hear evidence at trial and court makes a Not guilty plea – hear evidence at trial and court makes a

decisiondecision



Civil Court ProcedureCivil Court Procedure

PleadingsPleadings Written statements prepared by parties that set out Written statements prepared by parties that set out

facts and claimsfacts and claims Plaintiff – party bringing an actionPlaintiff – party bringing an action Defendant – party defending an actionDefendant – party defending an action Various documentsVarious documents

Statement of claim or defenseStatement of claim or defense Writ of summonsWrit of summons An appearanceAn appearance




Close of PleadingsClose of Pleadings Once pleadings have been closed, either party sets it Once pleadings have been closed, either party sets it

down for trialdown for trial May require some form of attempt at dispute resolution May require some form of attempt at dispute resolution

before going to trialbefore going to trial Examinations for discovery may take place to clarify Examinations for discovery may take place to clarify

points in either parties pleadings (purpose is to know points in either parties pleadings (purpose is to know the other sides case)the other sides case)




Trial (Procedure)Trial (Procedure) Plaintiff openingPlaintiff opening Defendant openingDefendant opening Plaintiff presents evidence and calls witnessesPlaintiff presents evidence and calls witnesses Defendant can cross examineDefendant can cross examine Defendant presents evidence and calls witnessesDefendant presents evidence and calls witnesses Plaintiff right to cross examinePlaintiff right to cross examine Parties sum up their casesParties sum up their cases Judge or jury deliberates to decide matterJudge or jury deliberates to decide matter



WitnessesWitnesses

2 Types2 Types Ordinary Witnesses Ordinary Witnesses

Give (direct) evidence of what they saw or heardGive (direct) evidence of what they saw or heard Expert WitnessesExpert Witnesses

Recognized experts on a subject and give opinion Recognized experts on a subject and give opinion evidenceevidence

– Medical experts, accountants, Medical experts, accountants, Best EvidenceBest Evidence

Not allow “hearsay” evidence – what someone heard Not allow “hearsay” evidence – what someone heard someone else saysomeone else say



AppealsAppeals

Can appeal to a higher court if one feels the judge Can appeal to a higher court if one feels the judge erred in application of the law or admission of erred in application of the law or admission of evidenceevidence

Serve a notice of appealServe a notice of appeal Court can:Court can:

AffirmAffirm ReverseReverse Send back for new trialSend back for new trial



Court CostsCourt Costs

Party Costs – Party Costs – award successful party the costs incurred plus a fixed award successful party the costs incurred plus a fixed

counsel fee according to a schedule or tariffcounsel fee according to a schedule or tariff Usually at discretion of court but usually always Usually at discretion of court but usually always

awardedawarded Solicitor Client CostsSolicitor Client Costs

Awarding entire legal expenses if in opinion of court for Awarding entire legal expenses if in opinion of court for unwarranted suits or defensesunwarranted suits or defenses



Law ReportsLaw Reports

The published decisions of the courtsThe published decisions of the courts Found in different series of reportsFound in different series of reports

Case CitationsCase Citations Used by legal profession to identify cases as persuasive Used by legal profession to identify cases as persuasive

argument before the courtsargument before the courts Set system of citation must be usedSet system of citation must be used



Administrative TribunalsAdministrative Tribunals

PurposePurpose Boards or commissions charged with regulation of Boards or commissions charged with regulation of

certain matterscertain matters Tribunals powers set forth in statutesTribunals powers set forth in statutes Limited to powers granted to them under statuteLimited to powers granted to them under statute

Ad hoc tribunalAd hoc tribunal Tribunal established to deal with a particular dispute Tribunal established to deal with a particular dispute

between partiesbetween parties



ADRADR

Alternative Dispute ResolutionAlternative Dispute Resolution Alternatives to the courtsAlternatives to the courts

TypesTypes MediationMediation ArbitrationArbitration

Commercial arbitrationCommercial arbitration Labour arbitrationLabour arbitration

AdvantagesAdvantages Quicker, cheaper, confidentialityQuicker, cheaper, confidentiality



Judicial Appointment ProcessJudicial Appointment Process

Federal GovernmentFederal Government Appoints Supreme Court, Federal Court, Tax Court, Appoints Supreme Court, Federal Court, Tax Court,

Provincial Supreme CourtsProvincial Supreme Courts Provincial GovernmentProvincial Government

Appoints provincial court judges (trial courts)Appoints provincial court judges (trial courts) ProcessProcess

Commissioner makes recommendations to a committeeCommissioner makes recommendations to a committee



Legal ProfessionLegal Profession

Attorney – a lawyerAttorney – a lawyer Solicitor – preparation of documents, traditionally in Solicitor – preparation of documents, traditionally in

England could not appear in courtEngland could not appear in court Barrister – a lawyer who appeared in courtBarrister – a lawyer who appeared in court Canada – all lawyers are both barristers and solicitorsCanada – all lawyers are both barristers and solicitors



SummarySummary

Legal system evolutionary in natureLegal system evolutionary in nature Purpose of judicial system is to ensure justicePurpose of judicial system is to ensure justice Courts have jurisdiction based on Courts have jurisdiction based on

Geographic;Geographic; Subject matter; orSubject matter; or Monetary amountMonetary amount

Appeals court hear appeals from lower courtsAppeals court hear appeals from lower courts ADR is used often in business for the advantages it ADR is used often in business for the advantages it

offers to litigationoffers to litigation

Documents

Prepared by Douglas Peterson, University of Alberta 2-1 Part 1 – Introduction to the Law Chapter 2 – The Judicial System