Our Court System and Solving Disputes (Script 432)

From Clicklaw Wikibooks

This script explains our court system and other ways to solve legal disputes instead of going to court. These other ways are called “alternative dispute resolution” or ADR.

Our Court System

British Columbia has two levels of trial court

These two levels are:

Trial courts hear evidence and decide cases.

Most cases start in Provincial Court

There are provincial courts in nearly 100 BC communities. Provincial Court has the following four main parts or divisions:

  • Criminal Division, known as Criminal Court
  • Family and Youth Division, sometimes called Family Court and Youth Court
  • Small Claims Division, known as Small Claims Court
  • Traffic Division, or Traffic Court

Criminal Court deals with criminal issues

A person accused of a crime makes a first appearance in Criminal Court. If the person is in jail, a judge decides whether to release the person or keep them in jail until the trial. For less serious crimes, the trial is also held in this court. For more serious crimes, the accused person may be able to choose a trial here or in BC Supreme Court. The most serious crimes, like murder and treason, must be tried in Supreme Court. But even for those cases, a provincial court judge will still hold a preliminary inquiry to decide if there's enough evidence to have a trial in Supreme Court. For more information, check script 211.

The Family and Youth Division handles family, youth and criminal cases

It deals with family problems like maintenance for spouses, child support, custody and access, as well as some criminal cases involving families, like spousal abuse. This court also hears young offender cases involving youth aged 12 to 17. Check script 110 for more information.

Small Claims Court deals with civil cases between $5,000 and $35,000

In these cases, someone sues someone else for money. People don't need a lawyer in this court; for example, all the forms are in plain language. For more information, check scripts 165, 166, 167, 168 and 169. Claims of $5,000 and less are dealt with by the Civil Resolution Tribunal.

Traffic Court handles traffic and some other offences

These other offences include by-law offences like zoning and building code violations, plus some other offences under provincial law.

BC Supreme Court deals with serious criminal and civil trials

Supreme Court handles both criminal and civil cases. The most serious criminal trials, for murder and treason, are heard in this court, not in Provincial Court. Other serious criminal cases involving drugs, rape and attempted murder are usually tried here too. For civil cases, Supreme Court hears cases for more than $25,000 and some cases for less than that. For example, the law requires some types of cases, such as builders’ liens and divorce, to be handled in Supreme Court.

Both criminal and civil trials can be in front of a judge, or a judge and jury. BC has several Supreme Court “resident” judges. These judges also travel to other places throughout BC to hold trials. Cases in Supreme Court are usually complicated, so most people use lawyers, but they don’t have to.

BC Supreme Court also hears appeals of some Provincial Court decisions.

The BC Court of Appeal

The BC Court of Appeal is the highest court in BC. It doesn't hold trials. The Court of Appeal reviews decisions of trial courts if any of the people in a case disagree with the decision and appeal it. It hears appeals of civil and criminal cases from the BC Supreme Court and appeals of some criminal cases from Provincial Court. The Court of Appeal is in Vancouver, but it also travels to Victoria, Kamloops, and Kelowna to hear cases.

The federal courts

The Federal Court of Canada and the Supreme Court of Canada are the two federal courts.

Federal Court has two parts and deals with federal laws

The Federal Court of Canada consists of the Federal Court, which is a trial court, and the Federal Court of Appeal. The Federal Court holds trials for cases on federal laws, mainly in the areas of immigration, income tax, and maritime law. These trials are before a judge only. The Federal Court of Appeal hears appeals of decisions by the Federal Court.

The Supreme Court of Canada is the highest appeal court

Based in Ottawa, the Supreme Court of Canada hears appeals from decisions of the BC Court of Appeal, from the appeal courts of other provinces, and from the Federal Court of Appeal. Usually, the Supreme Court must agree to hear an appeal—and it doesn't agree to hear every appeal that people request. In some cases, the right to appeal is automatic. Until recently, people often had to go to the court in Ottawa, but now the court hears some appeals by a live video link to a court in Vancouver.

Courts are normally open to the public

All courtrooms are normally open to the public, so you can attend and watch. You can walk in and no one will ask you what you’re doing, if you’re quiet and don't disturb the proceeding. Some high profile trials (such as gang and biker trials and the Air India trial) are not completely open to the public. They have intense screening of anyone who wants to attend.

Alternative Dispute Resolution

What is alternative dispute resolution?

Alternative dispute resolution, or ADR, is an alternative to going to court. The four most common alternative ways to solve legal disputes are:

  • negotiation
  • collaboration
  • mediation
  • arbitration

ADR often works best at an early stage of a dispute (unless the issues are very complex, in which case, examining the documents and questioning the people involved might first be required). For less complex cases, the more time that goes by, the more likely it is that you and the other person will believe that you’re each right and the other person is wrong. Once you become stuck or entrenched in your positions, and ignore the common interests you may have, it’s harder to reach a solution you can both accept.

Why choose ADR over court?

Courts are often slow and expensive. They’re not always the best place to solve a dispute. Going to court can often end up costing more than the dispute is worth. And going to court may not work if you need a quick solution. Also, court proceedings are open to the public, while ADR is private.

Even if you go to court, you can still try ADR in most cases. After a lawsuit has started, lawyers often negotiate settlements for their clients, so they don’t have to go to trial. Or your lawyer might recommend you try mediation or arbitration before going further with a lawsuit.

How does negotiation work?

Negotiation involves reaching an agreement with another person—you both work out a solution together that fits both of your interests. Negotiation happens every day. It’s probably something you often do, perhaps without even realizing it. If you try to negotiate a legal dispute without a lawyer, you should both sign an agreement first that says your negotiations are “without prejudice” to your legal rights—meaning that your discussions won’t be used against either person if one of you decides to go to court.

A lawyer or counselor may be able to help you negotiate an agreement. But a negotiator represents only one side of the dispute, and acts only for that side.

How does collaboration work?

Collaboration involves both sides agreeing not to go to court, to disclose all relevant information, and to seek an agreement that suits everyone. Collaborative negotiation is used in some non-criminal cases, but it’s most widely used in family law. Both spouses have their own lawyers, who act only for them in the collaborative process. The lawyers focus on settlement, not on conflict. They meet with you and your spouse to minimize conflict and reach an agreement. If you can’t reach an agreement, the collaborative process ends, and each of you must look for a resolution elsewhere and hire new lawyers.

Collaborative negotiation is an effective process for moving past conflict to resolution—even if you’ve tried other ways to come to an agreement. It also gives you emotional support and legal guidance. And it’s more private than going to court (court documents are public, but your collaborative agreement is not).

For more on collaborative divorce and collaboration in family law, check script 111 on “Mediation and Collaborative Settlement Processes”.

How does mediation work?

Mediation is a voluntary process that both people in the dispute agree to. A neutral person, called a mediator, listens to you and the other person in the dispute, and helps the two of you reach a solution that works for both of you. The mediator doesn’t work for either person, or favour one person over the other. The mediator manages the process and organizes your discussions, remaining a neutral facilitator throughout the process. They help clear up misunderstandings and reduce tension, so you and the other person feel comfortable sorting out your problems together. But while the mediator helps the two of you to come to an agreement, they don’t decide for you, or force you to accept a solution.

Mediation works well for most disputes—especially when the facts are clear, the people are in an on-going relationship, and they want to protect their privacy. For example, mediation can be ideal for solving family disputes and divorce issues, where the spouses have a continuing relationship and need to work together as parents.

But mediation works only if both people are willing to resolve their dispute. It doesn’t work if one person isn’t interested in a solution that satisfies both people. In that case, court may be the only solution.

For more information, check script 111 on “Mediation and Collaborative Settlement Processes”.

How does arbitration work?

Arbitration is more formal than mediation, but less formal than court. An arbitrator (a neutral person or a panel of them) listens to the evidence you each present and then decides. You and the other person agree in advance on the rules for the arbitration process. You can both agree on a process that will allow the arbitrator to reach a decision on a limited budget.

Arbitration works well for commercial and business disputes. An arbitrator is often experienced with the type of dispute you have. They may be an expert on the subject.

Before arbitration begins, you and the other person must decide if you can still go to court if you don’t like the arbitrator’s decision. This may depend on the law that applies to your problem. Usually, you cannot go to court later if you’re unhappy with the arbitration result.

Where can you find a mediator or arbitrator?

Professionals who provide alternative dispute resolution include lawyers, social workers, and psychologists. When looking for a mediator or arbitrator, it’s important to work with a qualified and skilled professional experienced in the type of dispute resolution process you want to use.

  • The ADR Institute of BC can direct you to a chartered mediator or arbitrator who is a member of the ADR Institute of Canada. Its phone number is 604.736.6614 in Vancouver and 1.877.332.2264 elsewhere in BC.
  • The ADR Institute of Canada is a national, non-profit organization that sets education and training standards for its chartered mediators and arbitrators.
  • The Mediate BC Society has a list of mediators. Its numbers are 604.684.1300 in Vancouver or 1.877.656.1300 elsewhere in BC.
  • Call the Lawyer Referral Service, operated by the BC Branch of the Canadian Bar Association, for a lawyer experienced in alternative dispute resolution. Call 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in BC.
  • Organizations related to a specific business, product or service may also offer ADR. For example, the Canadian Motor Vehicle Arbitration Plan has an arbitration program for disputes between consumers and vehicle manufacturers about alleged manufacturing defects or new vehicle warranties. If you have a complaint involving a business, the Better Business Bureau offers both mediation and arbitration. The BC Arbitration and Mediation Institute has a new program specifically for resolving strata bylaw disputes through mediation.

More information

[updated March 2018]

The above was last reviewed for accuracy by Steven Gjukich and edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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