LITIGATION
:
GOING TO COURT
Customers don’t pay, suppliers
fail to deliver, products are defective, contacts are broken, people lie,
misrepresent and commit acts of deceit, trusts are breached, negligence occurs,
people are wrongfully dismissed from employment, reputations are defamed and
sullied, property is misappropriated or not returned, families break up, heirs
are disinherited, governments, schools, boards, police fail to act in accordance
with their statutory authorities and duties of care; in short, events transpire
which put your life and your interests in conflict with others.
When people are in a dispute which
they cannot resolve directly they are usually faced with three choices
It is that third alternative that
is encompassed by the term, litigation.
The parties, whether they are
the plaintiffs, who bring the action, or the defendants who are responding
to the action are looking to the judge, who after hearing the evidence, the
arguments of counsel and after consideration of the law, makes a decision
as to who proved their case, who was right, who was wrong and resulting consequences
of these determinations.
These consequences may consist
of
Judges may err, and this is why
there are courts of appeal. Opinions of lawyers differ, and this is why a
town that cannot support one lawyer frequently can support two.. (this is
not my expression and I would appreciate knowing who did author this).
In Ontario, in most instances unless
the claim seeks declatory, injunctive relief or pertains to an interest in
land, defamation, or family matters, the amount of money involved in the litigation
dictates where or how the litigation should be brought.
A case under $10,000.00
should be brought in the small claims court in the geographical district where
the defendant resides.
A case over $10,000.00 and
under $50,000.00 should be brought in the Superior Court of Justice under
the simplified rules.There is no discovery of the parties. Although the parties
cannot examine the other under oath to test the case and evidence before trial,
there is a significant costs savings which frequently offsets the uncertainty
and risk of surprise at trial. The parties continue to make disclosure of
their relevant documents and potential witnesses.
In excess of $50,000.00
the proceedings are brought in the Superior Court of Justice. These cases
have full discovery. If you are in a dispute which you cannot resolve directly
or are uncertain of your rights and the law pertaining to any issue which
you believe may impact upon you, or you have any questions regarding the court
process in which you are or may be involved, you should consult a lawyer.
ALTERNATIVE DISPUTE RESOLUTION
I would be pleased to receive your
consultation and feel free to contact me through the contact link regarding
Alternative Dispute Resolution (A.D.R.)
In the alternative to litigation,
or in an effort to avoid litigation, resort may be had to what is referred
to as alternative dispute resolution. This is a private system whereby the
parties agree to either a mechanism whereby their dispute will be determined
by another, that is Arbitrated, or the parties will retain a person who will
facilitate the parties negotiating and settling the dispute between them,
that being Mediation. Both of these processes are voluntary and must be agreed
to by the parties.
Arbitration is a private
court, although the rules and powers of the arbitrator are set out in the
Arbitration Act and in what ever agreement entered into by the parties to
obligate the parties to arbitrate.
Mediation deals not simply
with the facts and law, but also to the underlying reasons behind the dispute.
Mediation is most appropriate when the parties have an ongoing relationship
extending beyond the matter in immediate contention or when the parties desire
a long term relationship or can honestly agree to disagree.
Mediation requires the parties
to act from positions of relative equality, without duress or fear of retribution,
with full and complete disclosure of all material facts. It requires the participants
have an open mind to assess the positions of the others, and an honest desire
by the participants to resolve the matters in contention .
Mediation and arbitration are
private processes, which means the parties make up the rules and the parties
bear the full costs of the process.
Please feel free to contact me
at should you have any questions pertaining to either process, or wish to
consider retaining me to represent your interests at mediation or arbitration
or act as an arbitrator or mediator.
These
commentaries are not legal advice. To consult
with us, contact [email protected]
- an award of damages
- a declaration, an injunction
restraining or directing that something be done by one or more of the parties - the costs burden of the litigation
or otherwise.
- do nothing
- self-help, which may unfortunately
imply the use of force, which will likely result in a urgent telephone call
to a member of the criminal bar - go to court