Being involved in a legal proceeding can be a very stressful and overwhelming process, regardless of if a person is legally trained or if it is their first time being exposed to the court system.  Having an understanding of what to expect and an overview of the Canadian legal system can help to alleviate some of those feelings. Each province and territory will have different court procedures and rules, so it is important to consult information for the correct province/territory and a legal representative who is local to that area.  For example, it would not make sense for a person being sued in Vancouver, British Columbia to contact a lawyer in Toronto, Ontario for help with their lawsuit.  A better choice would be to contact someone in Vancouver, or at the bare minimum, a representative in British Columbia.

Understanding the Canadian Courts

The courts in the Canadian legal system are created by both the Provincial and Federal goverments.  Provincial court structures include trial level courts, superior courts, and appellate courts.  Federal court structure includes the Federal Court, the Federal Court of Appeal, the Tax Court of Canada, and the Supreme Court of Canada.

Additionally, there are administrative tribunals in both of the provincial and federal levels. It is important to note that tribunals are not technically a part of the judicial system as they are independent government organizations, rather they are considered quasi-judicial as they engage in fact-finding and have the ability to impact an individual's rights.  Tribunals are composed of adjudicators who are highly knowledgeable in certain areas of law, and how to apply the law and it's regulations.

The Role of Judges in the Canadian Courts

Judges provide an impartial and independent assessment of facts and evidence presented in the courtroom and interpret the relevant law.  During a proceeding, the judge is the "trier of fact", meaning that they decide whether the evidence presented is credible and which witnesses are telling the truth.

In civil cases, the judge then determines whether a claim has been established on a balance of probabilities. They decide whether a claim is valid and assessed damages, grants an injunction, or orders the requested remedy to the plaintiff.

In criminal cases, the judge determines whether an accused is guilty beyond a reasonable doubt.  The judge then determines the appropriate sentence, which depending on the crime, can range from a fine to prison time.

The decisions made by the courts are based on what the law says and what the evidence presented to the Judge proves. Judges have independence, meaning that their deciisons are based only on facts and laws.  This independence is ensured by three separate mechanisms.

  • Security of tenure: a judge remains in position until the age of retirement, unless there is a valid reason for them to be removed from office;
  • Financial security: the salary paid to a judge is sufficient enough for them to not be enticed by a bribe; and,
  • Administrative independence: the chief justice in the provinces and territories decides how the litigation process is managed by the courts and which cases are to be heard by judges. 
Preparing to Go to Court for the First Time

Anyone can represent themselves in court, but it is a good idea to contact a legal professional (either a paralegal or lawyer) before making this decision.  Navigating the court processes to ultimately obtain a trial date can be a very lengthy and stressful process to navigate without the appropriate knowledge and skill. There are different court procedures for civil, family, and criminal matters, along with different procedures at different levels of court.

In situations where an individual chooses to proceed without obtaining legal representation, it can be very difficult to obtain representaiton once a trial has started.  Additionally, an individual may not appeal a trial decision on the basis of failing to have adequate representation.

Alternatives to Going to Court (Alternative Dispute Resolution)
Negotiations

Negotiations can take place at any point between the parties to reach a compromise and avoid unneccessary legal costs.  Negotiations allow the parties to develop a mutually agreeable solution and can allow for creative solutions, which would not be otherwise available through the courts.

Negotiations can be either formal or informal and are the least formal process out of negotiations, mediation, and arbitration.

Mediation

Mediation involves hiring an independent third party professional to facilitate discussions between the parties and come to a conclusion.  The mediator does not make a decision, rather they are there to help the parties speak to each other and see which creative solutions may be possible.

A mediator is often highly knowledgeable in a specific area of law.  Mediation is a more formal process than negotiations and can be mandatory in some courts and jurisdictions before parties can proceed to a trial.

Arbitration

Arbitration involves hiring an independent third party neutral professional to hear the parties and come to a final decision, similar to the role of a judge.  The decision of an arbitrator is usually final and can be filed with the courts to be enforced.  Arbitration is the most formal process out of negotiations, mediation, and arbitration.

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