Deck 4: Dispute Resolution

Question 1

What is the role of common law and statue law with regard to the litigation of a commercial dispute?

A) Both provide a source of the objective rules applicable to the disputed matter.
B) Each provides a source of the substantive rules applicable to the contested matter.
C) Both provide rules governing the legal foundation for determining how trials proceed.
D) Each contains rules that determine what the process leading up to trial will be.

Answer 1

B

Question 2

The activities of a large multinational corporation violated federal and provincial environmental laws.The resulting pollution of a clean water source caused illness among both Aboriginal and Canadian peoples,as well as more immediate suffering and death of wildlife inhabiting the affected area.Which of the following would the corporation's lawyers most likely suggest as the main reason for attempting to force resolution of the legal dispute through ADR?

A) a desire to avoid establishing a common law precedent for damages arising from environmental infractions
B) a need to sustain the operation based on the amount of capital resources committed to it business activities
C) the ability to keep details of the contamination and of the settlement private and confidential
D) the fact that an arbitrator's decision will be binding and likely be favourable to the corporation

Answer 2

C

Question 3

Which of the following terms correctly identifies the role of the individual characterized as a good listener whose professional function is to provide assistance to disputing parties wanting to negotiate a settlement of their dispute?

A) judge
B) mediator
C) lawyer
D) arbitrator

Answer 3

B

Question 4

Which of the following is an example of the circumstances that would cause the risk management department to consider referring a commercial dispute to alternative dispute resolution as an appropriate action?

A) The parties are unconcerned about privacy or confidentiality.
B) The parties disagree about the nature of the disputed issues.
C) The parties both desire a quick resolution of minor problems.
D) One or more of the parties does not respond to cost incentives.

Question 5

Two mid-sized business enterprises are desirous of entering into a long-term commercial relationship.Both negotiating teams have been instructed to ensure that any disputes that may arise will proceed through the alternative dispute resolution governed by legislation.Which of the following actions would a lawyer most likely advise the negotiating teams to take in order to satisfy that requirement?

A) The parties must include a mutually agreeable arbitration clause in their agreement.
B) The parties must choose an acceptable adjudication clause in their contract.
C) The contract should include a mutually agreeable alternative dispute resolution clause.
D) The parties' contract should include an acceptable mediation clause.

Question 6

Two companies involved in an international transaction contractually agreed on which country's laws would apply and which country's court would preside over litigation of disputed matters.According to those provisions,an English court awarded judgment in favour of the Canadian company against the Italian company for breach of contract.Which of the following would immediately indicate that the Canadian company continues to face a significant hurdle with regard to successfully concluding the disputed matter?

A) refusal by the New York Commercial Award Enforcement Agency to recognize the validity of the U.K. court's decision
B) the refusal of an Italian court to accept jurisdiction to enforce the judgment obtained from the English court
C) the filing of an appeal of the English court's decision with the UNCITRAL International Commercial Appeal Court
D) the tardiness of the Italian company to submit payment in honour of the judgment given by the English court

Question 7

Which of the following will be applied to determine how a disputed commercial claim will proceed through the civil justice system?

A) substantive rules
B) procedural rules
C) objective rules
D) mandatory rules

Question 8

Tess Mikilson,a successful commercial litigation lawyer,has just returned from the first of a series of ADR training seminars she arranged to attend.Which of the following correctly identifies the area of training "ADR"refers to?

A) alternative dispute restitution
B) alternative dispute resolution
C) alternative dispute regulations
D) alternate director responsibilities

Question 9

Which of the following would be a valid criticism of the use of arbitration clauses in contracts between investment brokers and their clients?

A) a code of conduct includes legislated procedures for resolving consumer complaints
B) a client's inability to ensure the independence and expertise of a suggested arbitrator
C) a finding that arbitration firms favour brokers and deny the clients due process
D) an arbitration procedure requires clients to pay a fee to have their complaint remedied

Question 10

Negotiating teams from two small companies reached a mutually agreeable compromise to settle a contractual dispute.The parties shook hands and parted company with feelings of relief.Which of the following likely had the greatest motivating influence on the disputing parties to achieve a remedy through this form of dispute resolution?

A) realizing cost savings for concerned parties
B) assurance that insurance covered the risk
C) justification of the use of the firm's resources
D) hourly rate charged by expensive lawyers

Question 11

Which of the following correctly identifies the goal of negotiation?

A) to set priorities for dispute resolution
B) to prolong the negotiation process
C) to reach a fair and acceptable outcome
D) to assess resolutions to legal disputes

Question 12

A mediator attempting to negotiate a resolution to a commercial dispute has conceded that she is unable to move the dispute through the mediation process.Which of the following would the mediator most likely attribute as the main factor contributing to the failed mediation?

A) the parties' inability to choose effective teams of negotiators
B) the unwillingness of a party to compromise and quickly resolve the issues
C) the mediator's lack of familiarity with the industry and the businesses
D) the parties' mutual failure to include an arbitration clause in their contract

Question 13

SolarCell Corp.has decided to litigate a dispute over an $8,000 outstanding account.Over the course of the business relationship,the customer has proven to be both unreliable and unreasonable.SolarCell is no longer interested in maintaining the business relationship.Which of the following correctly identifies the court that will have jurisdiction to decide the outcome of SolarCell's claim?

A) the Small Claims Court
B) the Civil Claims Court
C) the Trial Court of Canada
D) the Superior Court of Justice

Question 14

A store manager of a large grocery chain made a verbal offer to compensate a customer for a serious hand injury requiring medical attention.Even though the store manager's offer was refused,he was seriously reprimanded by the vice president of the legal risk department.Which of the following likely held the greatest significance with regard to the vice president's concern?

A) an objective to pay as small a settlement as possible
B) a need to clarify the situation before entering negotiations
C) the primary goal of reaching a fair and acceptable outcome
D) negotiating could imperil risk insurance coverage

Question 15

Which of the following characterizes a required element in circumstances where ADR has been chosen as the preferred method of resolving a dispute between commercial entities?

A) the wish to avoid rushing a settlement
B) a mutual desire to retain the relationship
C) one party will make a large payout of cash
D) the wish to amicably terminate the relationship

Question 16

Davey Jones Law Offices acts as legal counsel to a large commercial client.The client has instructed Mr.Jones to prepare and file a litigation claim naming a competitor as the opposing party in the law suit.Which of the following correctly identifies the title given to Davey Jones's client in the initiating document?

A) respondent
B) petitioner
C) plaintiff
D) defendant

Question 17

Reports of Canadian women being victimized with unnecessary radical surgeries as a result of the misreading of pathology reports and inappropriate denial of a second opinion within the nation's medical system continue.Ultimately,there may be thousands of women entitled to substantial compensation for these wrongful acts.Which the following would meet the goal of providing increased access to the legal system and increased professional and corporate accountability?

A) certification of a class action law suit by a court in each affected jurisdiction
B) requiring unsuccessful citizen plaintiffs to pay corporate defendants' legal bills
C) mandatory pretrial conferences to narrow the issues and force confidential arbitration
D) adhering to the principle that civil awards serve as a deterrent to misconduct

Question 18

Dante is a senior risk manager employed with a large manufacturer of solar energy converters.He has been assigned the task of determining the viability of proceeding to obtain an enforceable remedy regarding the non-payment of a customer's account.Which of the following questions must initially be answered in the positive in order for Dante to proceed further?

A) If litigation is successful, will the offending party's assets satisfy the judgment?
B) Is the offending party willing to negotiate a compromise in good faith?
C) Does the significance of the dispute justify the expenditure of time and resources?
D) What priority will the offending party give to providing an effective negotiator?

Question 19

Walter received and considered submissions from both parties involved in a commercial dispute.He will deliver his decision shortly.In accordance with the terms of the contract governing the disputing parties' relationship,they are bound to comply with that decision.Which of the following correctly identifies the role Walter has played in providing a resolution to this commercial dispute?

A) mediator
B) judge
C) arbitrator
D) adjudicator

Question 20

Which of the following correctly identifies the meaning of the term "limitation period"?

A) time covered by the retainer paid for the lawyer's services
B) set period of time in which a legal action must be commenced
C) period of time that must pass before a claim can be filed
D) maximum amount recoverable for breach of contract

Question 21

Davey Jones Law Firm has filed a claim with the court on behalf of its client naming Gaston's Commercial Fabricators Inc.,as the opposing party.Which of the following correctly identifies the title given to Gaston's in the initiating document?

A) plaintiff
B) defendant
C) respondent
D) petitioner

Question 22

If John is hoping for an opportunity to settle his lawsuit based on the strength of his evidence before an actual trial has taken place,how should he instruct his lawyer to proceed with respect to the litigation process?

A) undertake the informal pre-trial discovery of evidence process
B) complete formal discovery involving disclosure of supporting evidence
C) file formal evidence for presentation to the judiciary to support a claim
D) initiate the informal disclosure process of all supporting evidence

Question 23

Sian has been named in a law suit alleging a large balance owed on an automobile lease.Sian believes the contract was voided when the vehicle's motor ceased operating the day after signing the lease agreement.Sian is still owed the compensation the dealership promised to pay her as reimbursement of the towing cost to have the vehicle returned to the dealership after it broke down.If Sian wants to avoid default judgment and recover her losses,how should she proceed?

A) issue a request discovery of documents
B) issue a request for a pretrial conference
C) immediately file a defence and counterclaim
D) file a statement of claim based on her losses

Question 24

Which of the following correctly identifies the term given to the losing party who will be filing an appeal within 30 days from the date the trial court's decision?

A) defendant
B) appellant
C) petitioner
D) respondent

Question 25

Which of the following identifies the burden of proof required to be satisfied in a civil lawsuit?

A) proof on the balance of probabilities
B) proof that is beyond question
C) proof beyond a reasonable doubt
D) proof that is beyond any doubt

Question 26

In which of the following scenarios would personal income and assets consisting of land,houses,and vehicles be at risk?

A) for as long as 20 years in some provinces to satisfy payment of a judgment
B) for as long as 20 years in some provinces beginning on dissolution of a partnership
C) for up to a 10-year period in cases of commercial bankruptcy
D) for up to a 10-year period in cases of corporate insolvency

Question 27

Justice Blackbeard has released his determination of an appropriate legal remedy arrived at following the trial of a case involving a commercial dispute.In addition to setting out the details of who must pay how much to whom,which of the following applies to the court's decision?

A) will introduce its own account of events and apply relevant case law
B) will identify relevant legal guidelines for interpretation of contracts
C) is supported by appropriate justification based on the evidence and legal rules
D) will detail the provincial jurisdictions where enforcement is possible

Question 28

To a business that has become the target of litigation,contingency fees can result in more litigation by improving accessibility to the legal system for claimants who might otherwise lack the resources to sue.

Question 29

There is a short-term concern that widespread use of ADR will result in diminished openness and accountability of the legal system.

Question 30

Martha's lawyer is not satisfied with the court's decision and he has urged his client not to accept it.Which of the following correctly identifies what step in the litigation process Martha's lawyer is recommending?

A) appeal
B) adjudication
C) litigation
D) ADR

Question 31

Which of the following explanations could you reasonably expect a lawyer to use when describing the concept of a counterclaim to a new client who is unfamiliar with the litigation process?

A) It formally sets out judiciary evidence filed to counter the plaintiff's claim.
B) It documents the response to a defence claimed by the countering party.
C) It documents the claim for loss filed against the party initiating the process.
D) It formally sets out facts to be relied in defence against the plaintiff's claim.

Question 32

Quintessance Spas Inc.has instructed its lawyer to register the judgment it was awarded at trial against the lands and buildings of the unsuccessful party.Which of the following correctly identifies the litigation term used to describe the party with a judgment registered against them?

A) judgment indebted
B) the judgment creditor
C) judgment proof
D) the judgment debtor

Question 33

Even though the amount of accumulated interest awarded previously by the trial judge was reduced,management of Renna Inc.indicated to its lawyer that it was pleased with the result of her efforts on the company's behalf.Which of the following would Renna Inc.'s lawyer have most likely stated as an explanation of the decision rendered by the appeal court?

A) The appeal court confirmed the original decision due to the trial judge's understanding and application of the law.
B) The appeal court varied the original decision due to the trial judge's misunderstanding and application of the law.
C) The appeal court reversed the original decision based on rehearing arguments of the facts cited by the trial judge.
D) The appeal court quashed the original decision based on rehearing arguments of the facts cited by the trial judge.

Question 34

The document originating a claim in a Canadian court contains a notice provision in a form prescribed under the Rules of Court.The notice provision states the limited period of time allowed for filing of the defendant's response.Following the court's registration of the claim,which of the following immediately activates the limitation period with respect to the deadline for filing of the defendant's response?

A) e-mail transmission of the claim to the respondent's lawyer
B) publication of the notice of claim in the local newspaper
C) personal service of the notice of claim on the respondent
D) personal service of the claim on the defendant

Question 35

Wilhelm Commercial Insurers Inc.is considering initiating a claim against an individual it now believes fraudulently misrepresented the facts of an insurance claim.The individual had been paid a substantial sum for a serious neck injury alleged to have been sustained in a slip and fall accident on a staircase in a retail store.If Wilhelm proceeds with the claim,how will the court place the burden of proof?

A) on the party alleging the loss
B) on each party's lawyer at the discovery stage
C) on each party to support their respective positions
D) on the party denying the loss

Question 36

NoTangles Wireless Connections Inc.entered the details required on the claim form provided by the Small Claims Court setting out each party's name and address,nature of the dispute and claim amount of $25,050.Which of the following could you reasonably expect the Small Claims Court clerk to give as the reason for refusing to register NoTangles's claim?

A) that the jurisdiction's small claims court dollar limit is $2,500
B) that the amount claimed exceeds the court's jurisdiction
C) that the court lacks jurisdiction to hear commercial disputes
D) that all litigation claims must be filed by law firms

Question 37

The Ultimate Caterer Inc.did not fare well in court.In addition to damages,the company was ordered to pay costs to the young couple whose wedding dinner left them and many of their guests very ill.Which of the following correctly describes the meaning of costs in these circumstances?

A) the legal fees incurred by the defendant in a lawsuit
B) the amount a loser must pay toward a winner's expenses
C) the legal fees incurred by the plaintiff in a lawsuit
D) the amount of court fees charged for litigating the lawsuit

Question 38

Which of the following correctly describes the meaning of "evidence" in the legal environment?

A) the proof presented in court to support a claim
B) facts that are strictly documentary in nature
C) facts that are strictly verbal in nature
D) the oral details of the defence to the claim

Question 39

An unsuccessful litigant may appeal a trial decision as long as notice of that party's intention to appeal is filed within a specified number of days following the delivery of the trial court's decision.

Question 40

A law professor is introducing his first-year law students to the topic of commercial civil litigation.Which of the following could you reasonably expect the professor to state is the role of the pleadings stage of the litigation process?

A) to allow time for the parties to plead the basis of their case before a judge
B) to prepare a document containing the allegations supporting the claim
C) to allow time for the defendant to concede and allow default judgment
D) to facilitate the exchange of formal documents stating the basis of the suit

Question 41

One of the most important factors to be considered when deciding whether to proceed with a litigation of a conflict that failed to be remedied through negotiation is whether the business can devote the necessary resources to proceed with the dispute.

Question 42

Because the numerous disputes that arise in the operation of a business are all of equal importance,managers are not required to waste precious time prioritizing disputes or determining when legal advice is required.

Question 43

Explain the nature of negotiation as an alternative dispute resolution method used in a business setting.Include a brief description of the technical rules that govern the operation of the negotiation process,the parties involved in preparing for negotiations,who should conduct the negotiations,and the elements required for a negotiated resolution or settlement to be reached.

Question 44

According to the rules provided for under the Arbitration Act,an arbitrator's binding decision may be referred for appeal before a judge presiding in a superior court.

Question 45

A controversial development has been the awarding of legal costs against unsuccessful plaintiffs involved in class action suits.

Question 46

Procedural rules dictate how a claim is carried through the civil justice system.

Question 47

An oral agreement is a reliable means of determining which party to a commercial arrangement is responsible for damage to goods in transit.

Question 48

A commercial business should seek to manage risk of loss by securing a basic coverage insurance policy with a reputable insurance company.

Question 49

Discuss what a class action lawsuit is,including a brief description of the requirements that must be met under legislation passed in some provincial jurisdictions that would enable a class action law suit.Also include a brief explanation of how a determination is made as to whether a class action may proceed in a province that has not passed specific legislation governing the process.

Question 50

One of the factors influencing whether negotiations to remedy a dispute will succeed is the effectiveness of the parties involved in the negotiations.

Question 51

The legal foundation and outcome of a litigation claim are governed exclusively by the legal rules contained in relevant common law.

Question 52

It would be very rare to find a significant commercial contract,whether international or domestic,that would contain an arbitration clause in it.

Question 53

The party ordered by the court to pay a specified amount to a winner of a lawsuit is known as a judgment debtor.

Question 54

In addition to an employee's contract,a company's policy manuals,established company rules,and the relevant job description should specify an employee's authority and the consequences of exceeding that authority.

Question 55

It is considered unwise to undertake litigation without having an appreciation of its potentially adverse consequences.

Question 56

Upon learning that a problem with a faulty computer system design caused a customer's business to be disrupted,the risk manager should check the applicable supply contract to determine the extent of its liability.

Question 57

The process of discovery includes examination of documents,oral testimony,and expert reports.

Question 58

The filing and service of a defence is part of the pleadings stage of a legal action.

Question 59

The suitability of disputes for alternative dispute resolution is not dependent on the type of law involved.

Question 60

Identify the party on whom the burden of proof rests with respect to a trial of a commercial dispute.Briefly explain what satisfying the burden of proof will entail in the trial process,how the opposing party is entitled to respond at this stage,and what is required of the judge presiding over the litigation of the matter.

Question 61

Identify the stages of a law suit and briefly describe the parties who would typically be involved.

Question 62

How does a person who wins a case in civil court actually collect on the judgment? What limitations are there on his/her ability to collect?

Question 63

What are advantages and disadvantages of having electronic data as part of the documentary evidence in a lawsuit?

Question 64

Identify and briefly describe matters that will influence the best courses of action a business may chose to take with respect to dispute resolution.Include an indication of the key element involved in approaching this process.

Question 65

Contrast the advantages and disadvantages of alternate dispute resolution.