Background & purpose of the system 1 basic institutions, processes, and players 3

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Legal Process II (Farrow) - 2021 Winter

Should all matters go to court?

  • Consider the type of issue at play (Black v. Slo-Pitch)

    • Sued operators of the field for being hit in the face during a recreational baseball game – argued should have had the foresight to build a screen protecting players by the sun. $1.5m tort law suit. Is this is a good thing?

    • Judge determined there was a triable issue; Dofasco loses motion for summary judgement

    • Dofasco meeting minutes indicated they had specific knowledge of a specific concern on a specific diamond

  • Consider whether the matter is better handled by government

    • Consider the cost, practicalities of the court – it takes energy and capacity.

    • Balancing who has the knowledge and the power – are there question marks around what is required and who is to blame? Is the suit a political manoeuvre?

      • E.g. Gun Control (Patrick White, “Victims of Toronto’s Danforth shooting sue U.S. gun maker)

        • Why should it be on the victims of gun violence to be responsible, proactivity of

government in policy is their raison d’etre

          • Here:

            • Victims of Toronto mass shooting launch class action against Smith and Wesson

            • Asserting that they failed to incorporate certain safety features into the design of the handgun that could have prevented bloodshed

            • Seeking $50 million in general damages and $100 million in punitive damages

            • Smith and Wesson failed to incorporate smart gun technology that would have ensured only authorized users can fire the weapon, the gun used in this instance was stolen

            • S & W had an agreement George Bush shielding gun makers from liability lawsuits

            • However, no such law exists in Canada

  • Consider the system from the perspective of the user, rather than the provider (Public Perspective: Everyday Legal Problems and the Cost of Justice in Canada)

    • 19% of people use lawyers to solve their problems. Those who do are happier and do better

    • Everyday Legal Needs Research: how does the public view justice and how they use the system

    • Why was this report assigned? Shows how prevalent these types of legal problems are in Canada, and how often they are not resolved through the court system. “invest a dollar in justice, and return is between $9-16. Evidence on economic justification for access to justice focus building”

    • Legal needs do not typically look like SCC case- more about the facts than the law. Clients don’t care about law, clients, lawyers, or the courts- they want their legal problem resolved, and their life secured. Is about security and wellbeing at root.

    • We are obsessed about courts, judges, lawyers, the profession at large- is as if clients do not really exist. Need to look at how people experience life- examine their everyday legal needs- as opposed to looking at lawyers/judges/processes.

    • Remember, are venturing into a course on legal processes/civil dispute resolution procedures, or in other words, 9% of peoples legal problems (compare object(s) of course to data in report)

    • Take serious peoples justice health, in the same way as society has taken serious peoples physical health, education etc research like this helps put justice on the map in financial allocation discussions. People assume justice will always be there regardless, they do not see the link between civil procedure and health, as well as they do not see themselves as subjects/objects of the legal system. May not also see housing/racism/immigration problems as justice issues, but rather social/political/economic issues. Those with power do not see themselves in the system, and those without have been excluded from the system to the extent they are disillusioned

    • Access to justice must be situated in a broader context than from within the courts

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