Exam 2: The Judicial System and Alternative Dispute Resolution

As the representative of a major newspaper chain you are opposed to the recent tendency of judges to grant publication bans during the court proceedings of controversial and high-profile trials. Together with several of your colleagues from other media organizations you decide to challenge the most recent ban. Which of the following statements is correct?

Walter was the only witness to an unprovoked assault by Queenie on June. June was attacked from behind and did not see who hit her. Queenie has denied she did it, but Walter told June that he saw her do so. When the case comes to trial, Walter is serving in West Africa with a non-profit organization and cannot be reached. Since June was there and has the direct evidence of a witness, she may tell the court what Walter saw.

Explain in detail the information contained in the following case cite and annotations and explain how and why the information is relevant for the parties to the action. Who else may also find this information relevant and why? In this case, the defendant was successful at trial. Canadian Olympic Assn./Assn Olympique Canadienne v. Olympus Optical Co. (1987), 14 C.I.P.R. 259; reversed, (1990), 31 C.P.R. (3d) 479, Fed. Ct. - Trial Division; affirmed, (1991), 38 C.P.R. (3d) 1, Fed. CA; leave to appeal to SCC refused, (1992), 41 C.P.R. (3d) 11. The plaintiff is the Canadian Olympic Assn./Assn Olympique Canadienne. The defendant is Olympus Optical Co. The case was first decided at trial in 1987. That trial decision was reported in the 14^th volume of the Canadian Intellectual Property Reports at page 259. The unsuccessful party, the plaintiff, then appealed the case to the Federal Court - Trial Division. Therefore, the original trial could not have been heard in the Federal Court. The Federal Court - Trial Division, even though appearing to be a court of original jurisdiction, can hear appeals on matters within its jurisdiction that were decided in provincial trial courts. The plaintiff at trial became the appellant and the defendant at trial became the respondent. The Federal Court - Trial Division made its decision in 1990 and it allowed the appeal thereby reversing the trial decision. This appeal decision was reported in the 31^st volume of the third series of the Canadian Patent Reporter at page 479. The party who was unsuccessful at this appeal (the defendant at trial, respondent in the first appeal) then appealed further to the Federal Court of Appeal. So, in this further appeal, Olympus Optical Co. became the appellant and the Canadian Olympic Assn./Assn Olympique Canadienne became the respondent. In 1991 the Federal Court of Appeal affirmed or upheld the decision of the Federal Court - Trial Division in the first appeal which had reversed the trial decision. The decision of the court in this second appeal was reported in the 38^th volume of the third series of the Canadian Patent Reporter at page 1. The party who was unsuccessful at this second appeal (the defendant at trial, appellant in the second appeal) then appealed further to the Supreme Court of Canada. The right to be heard on appeal by the Supreme Court is not automatic and the Supreme Court itself will decide whether it believes there is any merit to hearing the appeal. In this case, the Supreme Court decided in 1992 that it would not hear and decide this further appeal. Its reasons for deciding in this way were reported in the 41^st volume of the third series of the Canadian Patent Reporter at page 11. Thus, the original trial outcome remains reversed meaning that the plaintiff at trial has succeeded in obtaining the relief it sought in the action. Other people for whom this would be useful information are those in similar situations trying to decide whether court action is justified or whether these decisions are sufficiently clear to define their legal rights without litigation. Legal researchers and historians will be interested in following and chronicling the decisions and reasoning to develop legal commentary on trends. A lawyer preparing a similar case will also be interested as he or she can present the case reasoning in court to the judge as a persuasive precedent to guide the judge's decision about his or her own client's matter.

Discovery is a process which is used to clarify points in the statement of claim or statement of defence.

Orange Shop Ltd. sells electronics and grants credit to its customers. It sold a laptop computer system to Kelly and granted a $3,000 loan to finance the purchase. Two days after purchasing the computer it fell off a low bench and the screen cracked. Kelly wanted to either exchange the computer or have it repaired. Orange Shop Ltd. refused to assist Kelly as an extended warranty had not been purchased. Kelly refused to repay the loan. Which pleading(s) will be filed by Kelly?

Lorna successfully sued the Hot Stuff Restaurant because she was injured by a piece of glass in a pie that she was served there. She believes the judge used too low a duty of care in assessing whether Hot Stuff had been negligent, which was the legal issue. Lorna may appeal on the basis of the judge's error.

Colin has sued Peter, and Peter has just sent a counterclaim. Since Colin has received it, the case can now be set down for trial.

As a witness for the plaintiff in a large upcoming civil suit, you are feeling nervous about giving testimony, and would like to know how the whole trial process works. A friend of yours explains how a trial proceeds and how witnesses are dealt with during the trial. Repeat here what she tells you.

American cases cannot be used in Canada because the legal systems in each country grew out of very different roots.

Raymond, who lives in Manitoba, appeals a trial court's decision in a case in which he sued a former business partner and lost. The highest court to which Raymond's case can possibly eventually be appealed is

A customer of the bank for which you work as Chief Systems Analyst is suing your bank. The customer alleges that money apparently withdrawn through an automated teller machine from her account must have been removed through a bank error, since she did not do so, and no one knows her identification number nor has access to her card. You are to testify as to the security processes in the bank's computer system and the accuracy of the computerized automated teller machine's records. In this role you are called upon as an

The State of Louisiana and the Province of Quebec both base their non-criminal laws on the French Civil Code.

You are part of a family business which manufactures children's clothing. There is a dispute among some of the family members about the appropriate division of profits. In order to have a judicial resolution of the dispute you would need to enter pleadings in the Family Court.

Your company, a manufacturer of household cleaning products, successfully defended a product liability suit brought by a customer for a serious skin irritation she suffered after using an oven cleaning solution made by your company. Your defence was based on the fact that adequate warnings were placed on the container that users should wear gloves. The plaintiff has appealed the court's decision on the basis that the judge failed to apply the legal principle of strict liability to this case, which would automatically find the manufacturer liable if the product itself were, in fact, found to be inherently dangerous. Select the most appropriate statement from the following:

You believe that an error has been made in the court's decision in your case at trial. You may be able to reach a more favourable decision by having a jury rehear and decide upon the case if you wish to appeal it.

Patricia successfully sued Mabel because Mabel's negligence in driving her car had caused injury to Patricia. It is up to the judge who heard the case to decide to what extent Mabel is required to compensate Patricia through the payment of damages.

The historical development of the court system in England shows a trend away from decisions being made by the community as a whole and towards decisions being made by one authoritative person.

While researching his family history, Norman discovered that his grandmother was the first Canadian woman lawyer to appear in front of a surrogate court. She was there to deal with a will.

Which of the following statements is false?

Orange Shop Ltd. sells electronics and grants credit to its customers. It sold a laptop computer system to Kelly and granted a $3,000 loan to finance the purchase. Two days after purchasing the computer it fell off a low bench and the screen cracked. Kelly wanted to either exchange the computer or have it repaired. Orange Shop Ltd. refused to assist Kelly as an extended warranty had not been purchased. Kelly refused to repay the loan. At trial, which party presents their case first?