Business and Family Law

Question 1

One of the functions of the Constitution Act 1867 was to divide the powers between the Federal and the Provincial Governments. Using the website www.canlii.org

a. Find the Constitution Act 1867 and name what matter is covered under section 91 point 10 and section 92 point 11. (2 marks)

Answer

In the Constitution Act 1867 section 91 is about legislative authority of parliament of Canada. Point 10 states the Navigation and Shipping. In the Constitution Act 1867 section 92 is about subjects of exclusive provincial legislation. Point 11 states the incorporation of companies with provincial objects.

b. Explain one other function of the Constitution Act 1867. (1 mark)

Answer

One other function of the Constitution Act 1867 was to separate powers of the provinces with regards to taxes, education, as well as property and civil rights.

Question 2

You have been approached by your boss who himself has been approached by several clients who seem to be having issues. One is considering divorcing her spouse, another is having a dispute with their neighbour, another is in a dispute with a supplier regarding terms of a contract and another is in the process of drafting a contract containing a clause regarding how to settle a dispute should one arise. You are asked to research into the 4 main ways of trying to settle civil law disputes. In your report to him you must

a. Name AND explain each of the 4 ways. (8 marks)

Answer

Alternative dispute resolution would be settlement negotiation, mediation, arbitration and summary jury trial.

Settlement Negotiation

Negotiation is the process of one party contacting with another party to work out some settlement of a dispute that is fair to both parties. Before bringing the issues to court, both parties are able to try and resolve their issues through negotiation. This would have the individual able to list what problem is and what they feel they would be entitled to, as well as consequences like a suing if there is no agreement after negotiation. If parties come to an agreement, a settlement outlining the terms will be put together and both parties will need to sign. In the case above, when divorcing the spouse both parties are able to talk and see what they can come to an agreement before taken into court as well as if there are children involved the custody would be lined. Dispute with neighbours has a solution to talk the issue over before taking to court. Let’s say that it was for noise disturbance, you can come to an agreement that past a specific time there will be no nose disturbance.

Mediation

In mediation, means a process in which two or more parties meet and attempt to resolve issues in dispute between them with the assistance of a mediator. Mediator meaning a person who assists parties in resolving issues in dispute between them, but has no power to unilaterally resolve the dispute. Each party shall deliver to the mediator and the other parties a statement of facts and issues not less than 10 days before the first mediation session is scheduled to be held. A mediation is concluded when all the issues are resolved, or the mediator terminates the mediation before the issues are resolved.

Arbitration

In arbitration, a third party acts as a private judge and makes a decision about the parties' dispute. The arbitrator might be an attorney, an expert in a particular field or maybe even a retired judge. Sometimes the parties decide to submit their disagreement to arbitration simply because it can be faster, simpler, and less costly than going to court. Sometimes the parties are obligated to use arbitration because they signed a contract that contains an "arbitration clause" that requires arbitration of any dispute relating to the contract.

Summary Jury Trial

A summary jury trial may be privately arranged or court ordered. A relatively new procedure, it is similar to an actual jury trial except each attorney presents a summary of his or her client's evidence to a jury instead of presenting evidence through witnesses. The jury decision can be helpful in resolving a dispute or reaching settlement. Trial proceedings which might take weeks are at times resolved in a few days using this method.

b. Explain one advantage OR one disadvantage of each of the 4 ways. (Note you must give a different advantage or disadvantage in each of your answers). (4 marks)

Answer

Alternative dispute resolution would be settlement negotiation, mediation, arbitration and summary jury trial.

Settlement negotiation

An advantage within settlement negotiation is that if both parties an agreement / think the terms are fair between the both pairs therefore there is no need for a court.

Mediation

One advantage is that the parties that are involved are given the freedom of choice. Most parties prefer making the decisions to resolve their conflicts themselves rather than have an arbitrator or judge tell them the proper course of action. This is especially true when the conflict involves complex and interests. If given these complex tradeoffs and interests, a judge may not understand what a particular ruling could mean for the parties’ relationships, and the ruling could leave all parties feeling like the losers in the dispute.

Arbitration

One disadvantage of arbitration is if arbitration is binding, both sides give up their right to an appeal. With that being said, there is really no real opportunity to correct what one party may feel is an erroneous arbitration decision.

Summary Jury Trial

One advantages of the summary jury trial is the savings for all concerned if it is successful in prompting a settlement. If the parties reach a settlement, they may save time in conducting discovery and presenting motions and, of course, in conducting the trial and the appeal process is also avoided.

Question 3

Joe offered to sell Harry his car for $500. Harry responded by saying, "I