Courts and Alternative Dispute Resolution in Canada

Once in litigation, the process moves through Discovery, where parties exchange documents and undergo "examinations for discovery" (verbal questioning under oath). If the case proceeds to trial, the plaintiff bears the burden of proof. If the plaintiff wins, the court may award damages (monetary compensation) or other remedies like injunctions (ordering someone to stop a behavior) or specific performance (ordering someone to fulfill a contract).

Exam Tip: If a question asks about the difference between a question of fact and a question of law, remember: a question of fact is what happened, while a question of law is what the correct legal test is.

Alternative Dispute Resolution (ADR)

Because litigation can be expensive, slow, and public, many parties turn to Alternative Dispute Resolution (ADR). ADR methods generally offer more control, lower costs, and higher privacy than the court system.

Negotiation

Negotiation is often the first step in any dispute. It is an informal process where parties (or their representatives) discuss the problem to find a compromise. It is non-binding, meaning parties can withdraw at any time.

A vital concept in negotiation is the term "Without Prejudice". When discussions are conducted "without prejudice," the admissions or concessions made during those talks cannot be used against the parties in court later. This encourages "honest and frank discussions" because parties can try to settle without fear of hurting their legal position if the settlement fails.

Mediation

Mediation involves a neutral third party—the mediator—who facilitates communication between the disputing parties. Unlike a judge, a mediator does not make a decision; instead, they help the parties find common ground and encourage compromise.

There are two main types of mediation:

• Public Mediation: Provided by the courts (e.g., at the Alberta Court of Justice). It is free to the parties, but you do not choose the mediator, and they are typically not lawyers.
• Private Mediation: The parties choose an experienced lawyer to act as the mediator. This is more effective for complex disputes but requires the parties to share the costs.

Arbitration

Arbitration is more formal than negotiation or mediation and is often described as a private "court" proceeding. In this process, the parties agree to an independent third party (the arbitrator) to make a binding decision.

The rules of the process are governed by an Arbitration Agreement, which allows the parties to tailor the procedure, such as setting specific deadlines or deciding what types of documents must be produced. While arbitration is more adversarial and costly than mediation, it is often more efficient for large commercial or construction disputes.

Warning: While arbitration is efficient, it has downsides. Decisions do not follow legal precedent, and judicial fairness is not always guaranteed. Furthermore, as seen in the Disney example, arbitration clauses in consumer contracts can sometimes be used to prevent consumers from accessing the public court system.

Summary Comparison

To choose the best method, one must weigh the trade-offs between control, cost, and finality:

If a judgment is reached through litigation, the winner may still face the challenge of collection. In Alberta, the Civil Enforcement Act provides the legal tools to enforce a judgment, allowing for the seizure of land, personal property, bank accounts, or even garnishing employment wages.