The Trial

A trial is an oral hearing of the issues by a judge alone, or by a judge and jury, to render a judgment on the matter. If a jury is used, the judge determines the law, while the jury is responsible for finding the facts and applying the law.

The plaintiff is the first to present his or her evidence to the judge. This involves the plaintiff and the plaintiff’s witnesses taking the stand and answering questions from the plaintiff’s lawyer under oath. The plaintiff and the plaintiff’s witnesses are then cross-examined by the defendant’s lawyer. Following the plaintiff, the defendant has an opportunity to present his or her version of the facts to the judge and call witnesses. Once the defendant and the defendant’s witnesses have been questioned by the defendant’s lawyer, they are cross-examined by the plaintiff’s lawyer.

Rules of evidence apply to determine the admissible evidence that may be provided in support of an argument. Ordinary witnesses may testify only about the facts they know firsthand, while expert witnesses may provide information and opinions based on the evidence. The courts also do not normally listen to hearsay evidence (information that a witness heard from another person). As well, if a party attempts to introduce surprise evidence, the court may refuse to hear it or may delay proceedings to give the other side an opportunity to reply and, in addition, may penalize the party with loss of costs.

The burden of proof in a non-criminal action is on the plaintiff. To win, the plaintiff must establish the facts that prove the plaintiff’s case and then prove the case in law. The plaintiff must prove his or her complaint on a balance of probabilities. This means that the “defendant will be held liable only if the scales are tipped in the plaintiff’s favour.”25 (This is in contrast to criminal cases, where the higher standard of beyond a reasonable doubt is imposed. In complex cases, the judge will reserve judgment and postpone giving a decision until after the court hearing ends and the judge has had time to review the evidence.

In civil litigation, a variety of remedies are available, as illustrated in Figure.

Figure : Remedies in Civil Litigation

The winning party is also normally awarded costs, the expenses incurred by it during the litigation. However, the costs are usually partial indemnity costs, which only partially indemnify (usually around 40 to 50%) the winner for fees and disbursements paid to his or her lawyer. In exceptional cases, if the action is deemed to be frivolous or vexatious, or if a reasonable settlement offer is rejected, substantial indemnity costs may be awarded (usually around 65 to 75% of the winner’s actual costs). Neither of these costs in any way compensates the winner for the time, energy, and emotional toll that a court case can take. Thus, in the end, it may be questionable whether the winner really won at all.

Appeals

An appeal must be requested within a certain time limit, usually within 30 days after the trial court renders its decision. The person who challenges the decision of the lower court is the appellant, and the person who defends the original decision is the respondent. The appellate court (appeal court) decides whether a mistake was made in the trial court. Normally, appeals are heard by at least three judges. The judges hear and read arguments from the parties or their lawyers, but do not hear witnesses or receive evidence. Generally speaking, appeal courts accept the findings of fact of the trial judge and reconsider only the application of the law. However, sometimes an appeal may be launched on the basis that the judge made procedural errors such as excluding important evidence or admitting improper evidence or, more rarely, on the basis that the evidence does not support the judge's finding of fact.

Alternative Dispute Resolution

Alternate dispute resolution (ADR) refers to private procedures to resolve disputes without going to court. The advantages of ADR include speed, reduced cost, choice of mediator or adjudicator, confidentiality (not generating bad publicity or divulging confidential information), and the preservation of ongoing relations between the two parties. ADR may be preferable because the outcome of a trial is unpredictable, given the number of factors that go into a trial. Furthermore, sometimes no amount of money awarded in damages by a judge will make the situation right, and ADR may allow for an alternative outcome, such as an explanation and an apology. Finally, ADR may allow for a win-win resolution.

There are three major types of ADR:

1. Negotiation does not involve a third party, nor is there any guarantee of binding resolution. It is the most common type of ADR since business people routinely settle their differences through discussion.

2. Mediation is a process by which a neutral third party who is acceptable to both sides assists them in reaching a settlement by clarifying issues, outlining the strengths and weaknesses of both sides, and suggesting possible solutions. The mediator does not render a decision. Mediation is usually voluntary but may be required by contract or, as is sometimes the case in Ontario, by law.

3. Arbitration is a process where the parties agree to be bound by the decision of a neutral third party who adjudicates the matter, although there may be a right to appeal to the courts. The arbitrator, who is chosen by the parties for his or her expertise in an area, hears witnesses and reviews evidence. Again, arbitration may be required by contract or law. For example, pursuant to the Canadian Motor Vehicle Arbitration Plan (CAMVAP), contracts between customers and dealers require disputes to be arbitrated before that body rather than through litigation.

Increasingly, mediation and arbitration are combined into Med-Arb, a two-step process that first attempts mediation but, if that does not work, empowers the mediator to impose a binding solution.

Administrative Tribunals

An administrative tribunal is a body that resolves disputes arising in administrative law. It is sometimes said to exercise a “quasi-judicial” function. It can make binding decisions that affect legal rights but generally operates more informally than courts in that, for instance, strict rules of evidence typically don’t apply. Thus, it is “somewhere between a government and a court.” The members of a tribunal are usually selected by the parties or by a statutory process, and are appointed on the basis of special knowledge or extensive experience in an area. Tribunal decisions are highly respected and not easily overturned. If a party is dissatisfied with a tribunal decision, the party can sometimes ask a court for judicial review.

A court will apply one of two standards during a judicial review. If it uses a reasonableness standard, the court will defer to the tribunal’s expertise and will overturn only those tribunal decisions that are unreasonable. On the other hand, a correctness standard does not require judicial deference, and the court is free to impose the “correct” judgment. The latter standard is used for general issues of law that are not within the tribunal’s area of special knowledge.

The government often inserts a privative clause into legislation that creates and empowers a tribunal. Such a clause attempts to prevent a court from exercising judicial review over a tribunal decision. If the clause is properly drafted, the tribunal’s jurisdiction is “final and conclusive” and not usually subject to judicial review.