Deck 2: Litigation and Alternative Dispute Resolution

Question 1

Which of the following statements is TRUE?

A) A law suit may be brought against human beings, corporations, and unincorporated associations.
B) In order to sue in Canadian courts, a person must either be a Canadian citizen or be represented by a lawyer who is a Canadian citizen.
C) A young child who is sued will be represented by an adult who acts in parens patriae.
D) Foreign corporations, like Canadian corporations, have an absolute right to sue in Canadian courts.
E) Trade unions sometimes can sue or be sued even though they are unincorporated associations.

Answer 1

E

Question 2

Which of the following statements regarding the right to sue and representation in court is TRUE?

A) For public policy reasons, a person who wants to sue the government cannot hire a lawyer on a contingency fee basis.
B) Paralegals are entitled to appear in a Provincial Court, but not in a Superior Court.
C) because they are legally incapable of providing consent, children and people with mental disabilities cannot be members of class actions
D) A lawyer who acts for the plaintiffs in a class action must work on a contingency fee basis.
E) Trade unions can sue or be sued even though they are unincorporated associations and therefore are not a type of legal person.

Answer 2

E

Question 3

Rejean is a world class athlete, who was was recently suspended by the Canadian Athletics Association. If that suspension remains in place, Rejean will not be allowed to compete in the upcoming world championships. Rejean therefore hopes to quickly and conclusively have the suspension overturned. The contract that Rejean had signed with the Canadian Athletics Association gives him the right to choose any form of dispute resolution. Which of the following alternatives is likely his best option?

A) mediation
B) arbitration
C) litigation
D) small claims court
E) negotiation

Answer 3

B

Question 4

Which of the following statements is TRUE with respect to remedies?

A) If a judgment debtor is bankrupt, a claimant who is entitled to a trust may be able to fully enforce a judgment, even if other creditors are forced to accept something less than full payment.
B) Nominal damages are awarded if a case involves several plaintiffs and the court must decide, or nominate, which plaintiff is entitled to enforce a remedy.
C) Punitive damages are available only in criminal proceedings.
D) Each law society has an assurance fund in order to provide a source of compensation for claimants who are unable to fully enforce their judgments against bankrupt judgment debtors.
E) Nominal damages are defined as damages that are awarded against a named defendant, rather than against a corporation.

Question 5

Class actions have become more common in Canada in recent years. That increase in popularity can be explained, at least in part, by the fact that

A) the rules governing class actions are now contained in statutes in every province.
B) liability in a class action can never be appealed.
C) lawyers conducting class actions must work on a contingency fee basis, with the result that their clients are liable for their expenses only if the case is won.
D) they save society money by eliminating the need for similar actions to be brought to court separately.
E) the Supreme Court of Canada recently said that, in contrast to the past, class actions can now be certified even if success for one claimant does not necessarily mean that all of the other claimants will also enjoy success.

Question 6

A company that manufactures cigarettes has been named as the defendant in a class action. Which of the following statements is TRUE?

A) The company will likely place notifications in newspapers in an attempt to avoid certification.
B) The company will probably have to pay costs on a solicitor- and- client basis if it loses the case.
C) because they have sued by way of a class action, the plaintiffs necessarily have hired lawyers on a contingency basis
D) the class action will be certified even if some other form of litigation is the preferable procedure.
E) The fact that the defendant has been sued in a class action necessarily means that other companies have also been sued in the same action.

Question 7

Arvid Dunston was severely injured when a large rock tumbled off a steep cliff and crashed through his windshield as he drove. Arvid sued the company that manufactured his vehicle on the basis that it had tortiously failed to use a type of glass that might have prevented the rock from entering the vehicle. He also sued the provincial government on the basis that the government had tortiously failed to inspect the area for rocks that might fall onto the road and hurt motorists. Which of the following statements is TRUE?

A) While the common law traditionally said that "the King can do no wrong," the relevant rules have been changed so that the same rules will govern both of Arvid's claims.
B) Arvid's two claims cannot be heard together because all claims against the government must be heard in a special type of court that is not available for disputes between two private parties.
C) In order to sue both the company and the government at the same time, Arvid will be required to satisfy the rules governing class actions.
D) The limitation periods that are applicable to the two claims will almost certainly be the same.
E) Even though one of the defendants is a private company and the other is a government, both claims will require Arvid to prove his allegations on a balance of probabilities.

Question 8

Rawls Inc recently sued Nozick Ltd. As Nozick has pointed out, however, Rawls' statement of claim was not filed within the limitation period. Which of the following statements is TRUE?

A) The primary purpose of limitation periods is to save society money by reducing the number of cases that need to be heard by courts.
B) If Rawls' claim was for breach of contract, the limitation period was probably ten years.
C) The length of the limitation period depends upon the nature of Rawls' claim.
D) There would not be a limitation period if Rawls sued the government.
E) If Rawls' claim was for breach of contract, it was probably extinguished once the limitation period lapsed.

Question 9

Hobbes has sued Kant for breach of contract. The facts and issues are very complicated. Which of the following statements is TRUE?

A) Hobbes must prove his cause of action on a balance of probabilities.
B) A pre- trial conference will require the parties to explain their arguments to a mediator, who has the power to decide the case in favour of the defendant if the plaintiff's evidence is very weak.
C) because they occur outside of court, examinations for discovery are entirely voluntary and neither party could be compelled to answer the other's questions
D) If Hobbes wins the case at trial, but is awarded less than Kant offered in a formal settlement, the court will probably award costs against Hobbes on a solicitor- and- client basis.
E) Although it would be quicker and less expensive to have the case decided by arbitration, arbitrators usually have less expertise than judges.

Question 10

Herbert & Hart Inc, an accounting firm, was legally represented in a recent dispute by Alan Munt, who is a lawyer. Herbert & Hart have now learned that Munt misbehaved by passing confidential information to the other side in the dispute. Herbert & Hart consequently lost approximately $12 000 000. Which of the following statements is TRUE?

A) Munt probably does not have liability insurance that will help to pay for his liabilities.
B) If Herbert & Hart are unable to recover their loss from Munt, they may be entitled to receive compensation from the law society's assurance fund.
C) Munt may be investigated by the law society only if he is an articling student.
D) Munt may be sued, but his behaviour cannot be investigated by the law society.
E) Herbert & Hart very likely violated the law society's code of conduct.

Question 11

The front window of Polly's Flower Shop was recently broken when someone threw a rock through it. Which of the following statements is TRUE?

A) If the person who threw the rock is insane, Polly's Flowers will not be able to sue unless it receives permission from the Public Trustee.
B) because a law suit can be brought only by a human, the plaintiff named in the statement of claim cannot be the corporation that owns Polly's Flower Shop
C) If the person who threw the rock is thirteen years old, there will not be a law suit because children under the age of majority cannot be sued.
D) The person who threw the rock may be sued even if that person worked for the government.
E) If the person who threw the rock is a European who is visiting Canada for less than a year, the case will have to be heard in the International Court of Justice.

Question 12

Wolodko Engineering Inc sued Dhaliwal Ltd for the tort of negligence. At one point during the litigation process, an examination- in- chief occurred. That means that

A) the case must have been heard by at least one appellate court.
B) the judge asked one of the parties a direct question.
C) questions were answered under oath.
D) one of the parties hired an expert witness to conduct a scientific investigation on a piece of physical evidence.
E) one of the parties asked the other party's witness a question during examination for discovery.

Question 13

A court recently held Acme Corp responsible for spilling pollutants into a stream. Which of the following statements is most likely TRUE?

A) If the court required proof beyond a reasonable doubt, Acme Corp was called the accused.
B) Since Acme Corp is not a human being, the case was heard in a special court called the Commercial Court of Canada.
C) If the claim against Acme Corp arose in private law, it almost certainly was heard by a jury, as well as a judge.
D) If the court required proof beyond a reasonable doubt, the claim against Acme Corp arose in private law.
E) If Acme Corp is dissatisfied with that decision, it is entitled to appeal, but only if it is willing to pay for the other side to bring its witnesses back into court.

Question 14

Kirndeep recently received a Bachelor of Business Administration. She has, however, always dreamed of representing people with legal problems. She has come to you for advice and guidance regarding the various possibilities. Which of the following statements is TRUE?

A) Lawyers always make more money than paralegals.
B) Before starting a private practice, a paralegal is required to complete a period of articles with a law firm.
C) Paralegals are allowed to represent clients in small claims courts.
D) Paralegals are more heavily regulated than lawyers.
E) Paralegals are permitted to help clients draft legal documents, but they are never entitled to appear in courts or tribunals.

Question 15

Examinations for discovery

A) are designed primarily to determine the defendant's financial situation, and therefore to help the plaintiff decide whether or not it makes sense to sue.
B) take place before the plaintiff drafts a statement of claim.
C) usually discourage settlement by demonstrating the weaknesses of each party's arguments.
D) take place after a jury has decided a case.
E) are conducted under oath.

Question 16

Josie lost a breach of contract case against Charles. She has now launched an appeal of the trial judge's decision. Which of the following statements is TRUE with respect to that appeal?

A) Josie's first appeal will likely be heard by three judges of the appellate court.
B) Although the appellate court is always entitled to apply its own view of the law, the trial judge's finding of facts can be overruled only if the members of the appellate court are unanimously agreed that the trial judge made a mistake.
C) The appellate court may accept or reject the trial judge's decision, but it cannot vary the terms of the trial judge's final order.
D) Although an appellate court is entitled to award damages, it cannot order specific performance of a contract.
E) If Josie loses her first appeal, she has a right to appeal to the Supreme Court of Canada as long as her claim is worth at least $100 000.

Question 17

The doctrine of precedent

A) prevents a judge from resolving a dispute on the basis of a decision from another jurisdiction.
B) prevents the Supreme Court of Canada from relying on a decision of a lower court.
C) requires the Supreme Court of Canada to follow decisions of the Judicial Committee of the Privy Council in England.
D) is never relevant if the resolution of a case involves the interpretation of a statute.
E) draws a distinction between binding authorities and persuasive authorities.

Question 18

At the end of a case, a court awarded costs against Craig. Which of the following statements is TRUE?

A) The court almost certainly awarded costs against the other party as well.
B) Craig probably won a private law case.
C) Craig must pay money to the other side, even if he won his case.
D) Craig probably was convicted of a serious crime.
E) Craig necessarily must reimburse the other party for all of the expenses that it incurred in connection with the case.

Question 19

A trial judge in Manitoba has heard a case dealing with a particular issue. Which of the following statements is TRUE according to the doctrine of precedent?

A) If there are no precedents, the judge is not entitled to decide the case, and therefore must refer the matter to the legislature because of the doctrine of parliamentary supremacy.
B) If there are conflicting precedents from the Court of Appeal of Ontario and the Court of Appeal of Saskatchewan, the judge must follow the former, because it comes from a jurisdiction with a larger population.
C) If there are no binding precedents, the judge may consider cases from anywhere in the world.
D) If there are conflicting precedents from the Court of Appeal of Ontario and a trial court in the Bahamas, the judge must follow the former, because it is Canadian.
E) If there are no other precedents, the judge is required to follow a decision of the Alberta Court of Appeal.

Question 20

Retailers Inc hired Clean Air Services (CAS) to develop and install an air conditioning system in a large office complex. The system that CAS installed turned out to be grossly inadequate, largely because, contrary to the terms of its contract, it used inferior materials. It did so in order to save money and increase its profits. A court has found CAS liable for breach of contract. In terms of a remedy, the judge

A) will probably impose a conditional sentence, unless CAS's breach caused someone to suffer an injury, in which case the judge would probably prefer imprisonment.
B) cannot hold CAS liable for damages unless Retailers Inc has demonstrated that CAS has sufficient assets to satisfy judgment.
C) assuming that it is entitled to receive money from CAS, Retailers Inc will be classified as a judgment debtor.
D) award nominal damages if the defendant's breach of contract did not actually cause any loss.
E) may hold CAS liable for a payment of money, in which case Retailers Inc may have some of CAS's assets seized and sold under the garnishee process.

Question 21

Geetha has been diagnosed with skin cancer. Based on her physician's diagnosis, she believes that her condition was caused by SofSkin, a lotion that she used for many years. She wants to sue the manufacturer of SofSkin, but she realizes that a law suit would require a great deal of complicated evidence, and therefore would likely be long and expensive. Which of the following statements regarding class actions is TRUE in this situation?

A) A class action is possible only if Geetha's lawyer works for a contingency fee.
B) Even if a court allowed a class action to proceed, it would be possible for other people in the same situation as Geetha to sue by themselves.
C) Regardless of which province or territory the class action occurred in, it would be governed by statute.
D) By participating in a class action, Geetha almost certainly would be able to avoid any expense if the claim failed.
E) A court would not allow a class action to proceed unless Geetha was joined by a substantial number of other people with virtually identical claims against the manufacturer of SofSkin.

Question 22

A number of commentators have referred to litigation as a "lottery." By using that word, they are suggesting that

A) many cases involve the enforcement of gambling debts.
B) jurors are selected in a random manner.
C) there are far more losers than there are winners.
D) the government heavily regulates trials in the same way that they heavily regulate lotteries.
E) the results are often unpredictable.

Question 23

The requirements for certification in a class action include

A) proof that all of the claimants are being represented by the same law firm.
B) proof that every potential member of the class has been personally notified of the proceedings.
C) proof that the class action will be substantially less convenient than individual proceedings.
D) a clearly defined class and issues that are common to every claimant.
E) a payment of bond money to the court, to be used to pay for the defendant's costs if the claim is unsuccessful.

Question 24

Which of the following statements is TRUE with respect to small claims courts?

A) The fee for filing a document in a small claims court often depends upon whether or not the party is classified as a frequent claimant.
B) In order to minimize costs and delays, small claims court judgments cannot be appealed.
C) A plaintiff has the right to have a claim heard in the small claims court that is closest to his or her home.
D) Small claims courts are a type of superior court.
E) Cases heard in small claims courts are decided by magistrates, rather than judges.

Question 25

Justice Veritas is hearing a case in court. Which of the following statements is TRUE?

A) The rules regarding hearsay apply to both oral testimony and written evidence.
B) Justice Veritas will allow an expert witness, but not an ordinary witness, to present hearsay evidence.
C) If the case involves a civil matter, rather than a criminal matter, the plaintiff must prove the elements of the cause of action on a balance of possibilities.
D) If the case involves a civil matter, rather than a criminal matter, the only party entitled to conduct a cross- examination is the plaintiff.
E) If the case involves a minor crime, Justice Veritas will require proof on a balance of probabilities.

Question 26

Kirndeep Khan wants to sue her employer for sexual harassment. She has therefore hired Rory McAngus to represent her. Which of the following statements is TRUE?

A) Rory is probably the employer's in- house counsel.
B) Whether he is a lawyer or a paralegal, Rory cannot act for Kirndeep unless he has completed a period of articles.
C) If Kirndeep loses her case against her employer because of Rory's incompetence, and if Rory is bankrupt, Kirndeep may eventually be entitled to receive compensation from an assurance fund.
D) If Kirndeep hired Rory on a contingency fee basis, and if she wins her case, then the judge will increase the measure of damages to ensure that Kirndeep receives full compensation even after Rory has received payment of his fee.
E) If Rory is a lawyer, then Kirndeep's conversations with him will be privileged, meaning that Rory cannot reveal what Kirndeep said to him unless a judge orders him to do so.

Question 27

Which of the following statements is TRUE with respect to pleadings?

A) A demand for particulars is always created by a plaintiff.
B) The party that creates a counterclaim is usually also the same party that creates the statement of claim.
C) The party that creates a reply is usually the same party that created the statement of claim.
D) The purpose of a counterclaim is to counter, or contradict, a statement of claim by alleging facts that have the effect of denying liability.
E) Each pleading must be filed with the opposing party and served on the court.

Question 28

Which of the following statements is TRUE?

A) The phrase "court hierarchy" refers to the fact that the courts must obey the words of a valid statute.
B) Arbitration is often binding.
C) The phrase "court hierarchy" refers to the fact that the Supreme Court of canada contains one Chief Justice and eight puisne justices.
D) The phrase "rule of law" refers to the fact that a law must contain a rule that either prohibits someone from doing something or allows someone to do something.
E) The judges of the superior court in each province are appointed by that province's government.

Question 29

Which of the following statements is TRUE with respect to small claims courts?

A) Although small claims courts often hear contractual cases, they may also resolve some types of personal injury claims.
B) because small claims courts often hear contractual disputes, they have the ability to order specific performance
C) Assuming that the amount in dispute is under $10 000, a taxpayer has the right to recover an improperly collected tax in the federal small claims court.
D) The only remedy that may be awarded in a small claims court is an order that requires the defendant to pay money to the plaintiff.
E) If a claim exceeds the monetary limit of a small claims court, the plaintiff is entitled to use the small claims court for part of the claim and another court for the remainder of the claim.

Question 30

Kaelen works as a sales representative for a large book publisher. She was recently held liable in tort and ordered to pay $35 000 to Antony. Which of the following statements is TRUE?

A) If Kaelen wants to appeal the trial judge's decision, she normally must do so within one year of that decision.
B) If Kaelen does not have enough money to fully pay her debt to Antony, Antony will be entitled to collect the remainder either from Kaelen's lawyer or, if Kaelen's lawyer does not have sufficient funds, from the law society's assurance fund.
C) The garnishee process will allow Antony to seize and sell some of Kaelen's assets in order to satisfy judgment.
D) Antony may be able to directly receive money that Kaelen normally would receive as income from her employer.
E) The court's award can be classified as nominal damages because Antony is entitled to receive damages of a certain denomination in money.

Question 31

Justice Major dissented in the case of Dobson v Dobson. That means that

A) was unable to decide the case because he had some personal connection to it.
B) he held that a statute was invalid because it violated the Charter.
C) he disagreed with the result reached by most of his colleagues in an appeal that they heard together.
D) he was hearing the case as a trial judge and rejected the plaintiff's claim.
E) he rejected a party's application to appeal an earlier decision.

Question 32

Demartini Inc sued Bentley Regehr for breach of contract. Demartini argued that it was entitled to receive a payment of $50 000 from Regehr. After failing to reach a settlement, the parties took their case to court. Which of the following statements is TRUE?

A) While the courts generally refuse to receive hearsay evidence, the judge in this case will probably allow expert witnesses to provide such evidence.
B) If Regehr offered to settle the claim out of court for $30 000, and if the judge eventually decides that Demartini is entitled to receive $35 000, the judge may award an unusually large amount of costs against Regehr in order to punish him for making an inadequate settlement offer.
C) The parties' case will almost certainly be heard by a judge of the Provincial Court of whichever province has the closest connection to the parties and their agreement.
D) In several jurisdictions in Canada, a claim for $50 000 or less can be heard in a Small Claims Court.
E) If the court finds Regehr liable for $50 000, Demartini may try to obtain payment from Regehr by garnisheeing money that Regehr is entitled to receive from his employer.

Question 33

Which of the following statements is TRUE?

A) ADR, by its very nature, can be used in private law, but not in criminal law.
B) ADR stands for "additional decision resolution."
C) The decision received from an arbitrator is frequently immune from appeal.
D) The process of negotiation tends to correct any imbalance in bargaining power, and therefore is usually preferred if one party is a consumer and the other is a large corporation.
E) Mediation is normally binding, unless the parties agree otherwise.

Question 34

Hughes Inc hired Liz to act as the chief architect for a major shopping development. After about a year, however, the parties' relationship began to deteriorate and the situation quickly became intolerable and irreparable. Each side blamed the other. Hughes Inc sued Liz for breach of contract. Liz defended that claim and started a counterclaim in which she alleged that Hughes Inc had broken their agreement. The dispute was eventually resolved through arbitration. Which of the following statements is TRUE?

A) Although the arbitration would not have taken place in a court, it was probably conducted by a judge.
B) The parties probably used arbitration, rather than litigation, because a judge decided that the issues were too complicated to be understood by jurors.
C) Some provinces require the parties in commercial disputes to participate in a mandatory arbitration program before taking a case to trial.
D) Assuming that the parties served a complete set of pleadings on each other, Hughes Inc would have used a document called a reply in order to respond to Liz's counterclaim.
E) Even if both parties are based in Manitoba, even if the contract was signed in Manitoba, and even if the shopping development was intended to be located in Manitoba, the arbitration could have taken place in a different province.

Question 35

Marisa successfully sued Ivan, a stockbroker who works for Blue Sky Investments, for breach of contract. The court held that Ivan's breach caused Marisa to suffer a financial loss of $50 000. The court also held that Ivan is personally liable to pay that amount to Marisa. Which of the following statements is TRUE?

A) An award of damages for breach of contract is the same as an order for specific performance.
B) because Ivan acted wrongfully, the damages are properly classified as punitive damages
C) Once judgment has been decided in her favour, Marisa became a judgment debtor.
D) Marisa may garnish Ivan's income if he does not otherwise pay his debt.
E) If necessary, Marisa is entitled to have all of Ivan's assets seized and sold in order to pay for the judgment.

Question 36

Which of the following statements regarding the Supreme Court of Canada is TRUE?

A) The court is never required to hear an appeal unless it has granted leave.
B) Unless a member voluntarily retires, he or she is entitled to hold office for life during good behaviour.
C) The court consists of the Chief Justice and eight Filial Justices.
D) Each member of the court was appointed by the premier of the judge's home province.
E) In addition to appeals, the court occasionally hears references for the purpose of advising governments on the constitutional status of laws.

Question 37

Which of the following statements is TRUE with respect to representation in legal disputes?

A) A lawyer who acts against a client's interests may be investigated by a law society.
B) In- house counsel refers to a situation in which a law firm that has been sued is represented by one of its own lawyers.
C) Communications between a paralegal and a client are confidential and privileged.
D) The Law Society of Canada has the responsibility of regulating lawyers across the country.
E) Litigants are entitled to represent themselves in trials, but not in appeals.

Question 38

Which of the following statements is TRUE with respect to alternative dispute resolution?

A) because they work outside of the regular court system, small claims courts are considered a form of binding arbitration
B) Negotiation is often considered a binding process when used by large corporations.
C) Arbitration cannot be used unless the parties previously created a contract that required all disputes to be sent to arbitration.
D) Arbitration is often preferred to mediation when the parties want to receive a binding decision from a third party.
E) While negotiation and mediation are confidential procedures, arbitration is not confidential because arbitrators' decisions are always reported in public documents.

Question 39

Fuller Inc has sued Perdue Corp. Which of the following statements is TRUE?

A) The judge may draft a demand for particulars in order to receive more information regarding Fuller's claim.
B) All of the parties' pleadings must be stamped and issued by the court.
C) A counterclaim usually is used if the plaintiff wants to change the details in a statement of claim.
D) If Perdue counterclaims, Fuller will use a reply in order to deny Perdue's allegations.
E) If the case goes to court, it will likely be heard by a jury.

Question 40

Jinyan has been involved in a law suit for several years. She recently sought "leave" from the Supreme Court of Canada. That means that she

A) wants the court to reverse its own decision in her case.
B) wants the court to hear her appeal.
C) wants to appeal the court's decision in her case to another court.
D) wants the court to release her from jail.
E) wants the court to appoint a new lawyer to work for her.

Question 41

Katrina has sued Bensam Inc, her former employer, for unfairly firing her from her job. The company denies that it has done anything wrong. The parties have exchanged pleadings and are now preparing to participate in a pre- trial conference. That means that they will meet with a mediator, rather than a judge, for the purpose of discussing their case and possibly reaching a settlement.

Question 42

The Crown can be sued only if a statute allows an action to be brought against the Crown.

Question 43

A person generally is not entitled to act as a lawyer in Canada unless they have completed a "period of articles." That phrase refers to the fact that admission to the bar depends upon proof that a person went to law school for a certain length of time.

Question 44

The federal government is concerned about the possibility that one or more provinces might try in the future to separate from Canada and become independent countries. The federal government has therefore created legislation to govern the validity of any attempts at separation. It would like to have the Supreme Court of Canada's advice as to whether that legislation is constitutionally valid. As a matter of fact, however, the legislation is not yet the subject of any lower court decisions. Is there any way in which the federal government can bring its statute before the Supreme Court of Canada? Or is that Court limited to hearing appeals from lower court decisions?

Question 45

Kabesa Inc sued Mahuja Ltd. The court held in favour of the defendant. The court probably also ordered Kabesa Inc to pay Mahuja Ltd's costs.

Question 46

Longhorn Inc has served a statement of claim on Trojan Ltd for breach of contract. Given the current trends in Canadian litigation, there is approximately a 1 in 4 chance that the case will eventually be resolved by a judge.

Question 47

Even if a cause of action is not caught by any statutory limitation period, a plaintiff who waited many years before attempting to sue may be prevented from doing so by the equitable doctrine of laches.

Question 48

Makayla was recently served with a statement of claim that alleges that she committed a breach of contract. Makayla simply denies that allegation. She will likely present her arguments against the allegation by using a document called a counterclaim.

Question 49

There is no guarantee that things will go well merely because you hire a lawyer. There are, however, certain factors that provide some assurance that (i) a lawyer is competent, (ii) a lawyer will act ethically, and (iii) compensation will be available if you suffer a loss as a result of a lawyer's careless or wrongful behaviour. Identify and briefly describe the relevant factors for each of those three propositions.

Question 50

Panaural Inc is a long- established entertainment company. Among other things, it manufactures and sells music CDs. One of its best selling artists is a group called Funky See Funky Do. Under the contract that exists between Panaural and Funky See Funky Do, copyright in all of the group's songs is held by the company. Panaural was therefore especially upset when it discovered that Noize Records, a small music company, has been manufacturing and selling CDs containing music by Funky See Funky Do. Panaural intends to sue Noize Records in an attempt to receive (i) an injunction to stop Noize Record's illegal sales, and (ii) $50 000 in compensation for the losses that it has suffered as a result of Noize Record's breach of copyright. In an effort to keep costs down, however, Panaural wants to bring its case in a small claims court. Is it entitled to do so? Provide several reasons for your answer.

Question 51

Geeta was one of several hundred people who received tainted blood from a hospital that carelessly collected and stored blood. Although each of the victims will be able to make essentially the same arguments against the hospital, a court will not certify a class action unless each of the victims also intends to claim roughly the same amount of damages.

Question 52

While a cross- examination usually occurs in court, examinations for discovery occur outside of court.

Question 53

Morley suffered a minor injury as a result of using a toothbrush manufactured by DentPlus Inc. The evidence indicates that the type of toothbrush in question suffers a from a design defect and therefore is likely to have injured every person who used it. In the circumstances, Morley wants to bring a class action against DentPlus. Class action proceedings are, however, available only if certain requirements are met. Morley must, for instance, satisfy the court that he has developed a workable plan for notifying all of the other members of the class.

Question 54

A contractual dispute has arisen between Jyoti and Arlen. She believes that he owes her money, but he disagrees. The parties do, however, agree that it would be desirable to resolve the dispute as quickly and as amicably as possible. For that reason they should use litigation, rather than negotiation. Negotiation tends to take much longer, and is much more likely to generate hostility, because it requires the parties to discuss the matter between themselves, rather than through their lawyers.

Question 55

Screaming Eagle Inc, a company based in Los Angeles, wants to sue Canuck Manufacturing Inc in a court in Vancouver. While the American company is entitled to sue in Canada, it must be represented by a litigation guardian.

Question 56

Citizens are protected from shady lawyers by the law society's assurance fund. That fund consists of the professional liability insurance that each lawyer is required to hold while practicing.

Question 57

Omicron Inc is one of several companies that manufactures widgets. For many years, almost half of its annual sales have been made to Sigma Ltd. Despite those sales, its financial position has always been somewhat precarious. A dispute recently arose with respect to financial losses that Sigma claims to have suffered as a result of a defective widget. Omicron strongly denies that it is responsible for those losses. Sigma, however, has announced that it will not purchase any more items until the matter is resolved. Omicron has asked for your advice. Analyze the situation from a risk management perspective by outlining the advantages and disadvantages associated with the various ways in which the case might be resolved.

Question 58

Although trade unions are unincorporated associations, and therefore are not legal persons, they generally can sue or be sued.

Question 59

Scalia Inc sued Ginsberg Ltd in tort. Scalia claimed that it was entitled to receive $15 000 in compensation. Ginsberg denied liability, but in an attempt to resolve the issue quickly and quietly, formally offered to settle the claim for $9000. Scalia rejected the offer and took the case to trial in the Federal Court. The trial judge has now decided the case in favour of Scalia, but damages were limited to $8000. In the circumstances, the trial judge is also likely to award party- and- party costs against Ginsberg for the period up to the day when the settlement offer was made, and double party- and- party costs against Ginsburg for the period between that day and the end of the trial.

Question 60

List and briefly describe the options that are available in terms of legal representation.

Question 61

In a case filed in the Federal Court, Gamma Inc sued Delta Ltd for breach of contract. Gamma claimed damages of $500 000. Although Delta denied liability, it formally offered to settle the claim for $200 000. Gamma rejected that offer, but in response, it formally offered to settle it claim for $400 000. Delta rejected that offer. The case has now gone to trial. Explain what order the judge will likely make with respect to costs if (a) Delta is held liable for $450 000, (b) Delta is held liable for $100 000, or (c) Delta is held not liable?

Question 62

Chad purchased an economics text book online from Shady Press Inc for $40. While the information contained in the book appears to be correct and current, the book itself began to fall apart almost immediately. After he complained about the situation in an electronic chat- room that had been set up by his course instructor, Chad discovered that a large number of other students had suffered through the same experience. Chad then emailed Shady Press to register his complaint and to ask for a rebate on at least part of the price. The company responded by saying that, as a matter of policy, it would not provide any sort of financial relief unless ordered to do so by a court. Although he is now even more annoyed at Shady Press than before, he assumes that he is, practically speaking, powerless to do anything. He has heard that litigation is expensive and he is unwilling to spend a lot of money in the hope of getting a refund on a book that cost only $40. Assuming that the company will not pay unless compelled by a judge to do so, what advice can you offer to Chad? Suggest, and briefly describe, several strategies that might overcome Chad's concerns about costs. (You need not go into great detail on each strategy.)

Question 63

Until recently, Enya did all of her banking at the Bank of the Prairies (BOP). She transferred her business to a different bank when she discovered that BOP had been systematically overcharging for a number of services. Enya was, for instance, charged excessive amounts every time that she wrote a cheque or withdrew money at an ATM. She knows that friends and relatives were similarly overcharged when, for example, they paid bills by telephone or received payment by way of direct deposit. Enya suspects that she personally was overcharged about $750. While that represents a substantial amount for her, she also realizes that litigation against BOP might involve a great deal of time and expense. She consequently wonders if her case might be a suitable candidate for a class action. She would like to participate in a class action alongside all (or many) of the other people who have been overcharged by BOP. What requirements must be satisfied before a court will grant certification to a class action?

Question 64

In the context of the ability to sue or be sued, what is the meaning and effect of the doctrine that "the King can do no wrong"?

Question 65

Describe the relationship between the concept of hierarchy and the doctrine of precedent. How are those concepts related to the rule of law?

Question 66

In a case filed in a superior court, Alpha Inc sued Beta Ltd for breach of contract. Alpha claimed damages of
$250 000. Although Beta denied liability, it formally offered to settle the claim for $100 000. Alpha rejected that offer, but in response, it formally offered to settle its claim for $200 000. Beta rejected that offer. The case has now gone to trial. Explain what order the judge will likely make with respect to costs if (a) Beta is liable for $150 000, or (b) Beta is liable for $50 000?

Question 67

As a result of recent events, Marshall requires legal representation. Because he has limited knowledge of the law, he has ruled out the possibility of self- representation. He realizes that he therefore must hire someone to act on his behalf. In choosing between hiring a lawyer and hiring a paralegal, what factors should he take into consideration?

Question 68

Your company has purchased a wide variety of supplies from Acme Inc over the course of many years. Much to your surprise, Acme has just served a statement of claim on your company. You are puzzled and annoyed. First, you are puzzled because while the statement of claim clearly alleges that you owe Acme $15 000, the precise basis for that allegation is unclear. Given the amount of business that your company does with Acme, that claim might be made in reference to any one of literally dozens of recent transactions. You are quite sure, however, that you have not done anything wrong under any of those transactions. Second, you are annoyed because, in the interests of goodwill, your company has often accepted from Acme goods that were somehow defective. In the past, you said nothing to Acme about those problems because you did not want to create bad feelings. But now that Acme has sued your company, you are feeling far less lenient. You are, in particular, dissatisfied with a shipment of shelving units that you received from Acme last week. Those shelves stand only 1.8 metres high, even though Acme promised in the contract of purchase and sale that the shelves would stand two metres high. In the circumstances, you have decided that you should sue Acme for breach of contract. Identify and briefly explain the pleadings that you will need to serve on Acme Inc in the near future.

Question 69

Briefly explain the difference between (i) examinations- in- chief and cross- examinations, (ii) direct evidence and hearsay evidence, (iii) ordinary witnesses and expert witnesses, and (iv) proof on balance of probabilities and proof beyond a reasonable doubt.

Question 70

Briefly explain the rules that determine the circumstances under which the following types of parties can sue or be sued: (i) children, (ii) adults suffering from a mental incapacity, (iii) corporations, and (iv) unincorporated associations.