Litigation Dispute Resolution and the Administration of Justice Colloquium

This seminar is the capstone course for the LDA Stream. It provides students with the opportunity, in collaboration with their peers, and the Instructor, to develop and refine a major research paper on a scholarly project commenced in a previous seminar or course. The seminar proceeds in three phases.

First, students identify the research they wish to develop in the seminar, and they consult on ways to develop and refine the research. They present their paper proposal to the class for comment and discussion and they prepare a formal commentary on one other proposal.

Second, based on the proposal and the discussion, students conduct further research and writing in order to craft the substance and structure of their papers. Based on an outline prepared for the class, they present their papers and receive feedback on the analysis and the direction of the argument.

Third, as the papers progress through initial drafts, the students participate in intensive editing workshops to provide them with techniques for improving the quality of their writing.

Labour Arbitration

This seminar is intended to provide an overview of the labour arbitration process applicable to unionized workplaces. The seminar primarily addresses grievance arbitration although it may also introduce interest arbitration, and mediation and med-arb as alternative dispute resolution mechanisms. The seminar will examine both procedural and substantive issues, including the regulatory framework, arbitral jurisdiction, pre-arbitration and arbitration processes and select issues in arbitration such as collective agreement interpretation, discipline and discharge, discrimination and accommodation, and privacy.

Legal Values: Access to Justice

Faced with the reality of an increasingly inaccessible justice system that is failing to meet the needs of the public, access to justice has been described as a crisis by the former Chief Justice of Canada. Given the significance of access to justice as a challenge facing Canadians, it is important to examine the causes as well as the consequences of a failure to provide access to justice from sociological, philosophical, democratic, legal, and practical perspectives. By studying the problem, it is hoped that we can begin critically to explore some long-term and meaningful solutions. A recurring consideration will be the role of the lawyer, both individually and collectively, as part of the problem as well as part of the solution. Students will be encouraged to explore a critical approach in order better to understand the scope of the problem, the goals and objectives associated with improving access to justice, and the feasibility of potential solutions. Topics, to be finalized, will include an introduction to current research and thinking on access to justice from a variety of different perspectives.

Intensive Legal Research & Writing

This intensive seminar provides students with the opportunity to refresh and update their research and writing skills. Skills reviewed will include the identification, analysis, citation and presentation of authorities; and standard research techniques, tools, and concepts, such as noting-up, controlled subject vocabularies, digests, and boolean searching. We will review the formats and media used to publish legal information, including commercial databases, open access web sites, and print. Additional topics covered will include the publishing and record-keeping practices of the major decision-makers, rule-makers, lobbyists, interest groups, etc.; the publishing and business activities of the significant commercial and non-profit disseminators of information and libraries; and the institutionalization of research activity in law firms, government and academia.

Constitutional Litigation

This seminar considers the adjudication process in constitutional litigation.  We will cover questions of procedure, evidence (adjudicative and legislative) and judicial notice. A key focus is on the importance of remedies as an initial consideration, not as an afterthought.  Debate, questions, banter and discourse are encouraged.

The seminar involves working through problems in small groups and presenting positions in class. Students will participate in the preparation of, and advocacy in, a constitutional case.  A final factum and moot before a panel of three judges will complete the course with students receiving both oral and written feedback.
Seminar topics may include: the role of the courts in constitutional litigation; commencing a constitutional case; drafting pleadings; government action under s.32 of the Charter; standing; selecting the appropriate court and procedure; mootness, interventions; role of the Attorney General; evidence in constitutional cases, proving constitutional facts, the role of experts and drafting effective affidavits, examination of government witnesses, presentation and assessment of social science data in the adversarial system; drafting constitutional arguments and presenting them effectively; oral advocacy; the importance of remedies for constitutional infringements; litigation strategies for public interest groups and case studies.

Theory and Practice of Mediation

This mediation seminar offers students an opportunity to develop an understanding of the utility and impact of mediation within the context of dispute resolution in Canada. Students will gain an understanding of mediation through the weekly seminars, simulations, reflections, and, circumstances permitting, co-mediations at Small Claims Courts in Ontario. The seminar will examine the utility of mediation and alternative dispute resolution, ethical and professional responsibility issues that arise in practice, the role of emotion, gender and culture in the process, and analyze the issues that students encounter in their own mediations and simulations. The seminar includes i) mediation training, including weekly simulations, and introduction to mediation and mediation-advocacy theory; ii) weekly seminars, guest lectures, and discussions and critiques of the course readings; iii) mediations in small claims courts (circumstances permitting); and iv) a reflective research paper comprised of issues discussed in the seminar, raised in assigned readings and confronted in students’ mediations.

Trial Advocacy

An introduction to the techniques of trial advocacy in civil and criminal trials. Consideration is given to pre-trial preparation and case analysis, opening and closing statements, examination and cross-examination of witnesses, evidence issues, expert evidence, tactical questions and ethical issues that confront the trial lawyer. Students perform simulation exercises in small groups under the critical guidance of experienced trial lawyers and Judges.  Students conduct 1/2 day jury trials with two-student counsel acting on each side of the case.  Trials are presided by Judges of either the Ontario Court of Justice or the Superior Court of Justice.

Administration of Civil Justice: Estate Litigation

This seminar will examine the substantive, procedural, and practical issues surrounding litigating certain claims by and against estates. Topics may include, depending upon available time, a detailed review of will challenges, dependant support claims, appointment and removal of estate trustees, passing of accounts, quantum meruit claims, and solicitor’s negligence in drafting wills. We will also examine the role of mandatory mediation and other negotiation techniques in resolving estate litigation. Students will also participate in a mock mediation exercise.

For each of these topics, we will explore how a client’s case is developed through the interaction of the case law, the Rules of Civil Procedure, the applicable statutes, the rules of evidence, and the psychology of the family unit.

Lawyer as Negotiator

Law schools have traditionally prepared lawyers for litigation and the courts, although in practice lawyers spend much of their time resolving disputes through forms of dispute resolution, including negotiation and mediation. Lawyer as Negotiation is designed to familiarize students with representative negotiation theory and practice, and specifically how theory informs the development of bargaining strategy in a legal setting. Students will attend weekly lectures, conduct negotiation simulations, and participate in small group discussions and reflections which will introduce and critique the principles of representative negotiation. Students will be expected to prepare detailed negotiation plans for their weekly negotiations as well as a final negotiation held at the end of the semester. Students will be coached and critiqued by dispute resolution practitioners throughout the year and will be encouraged to reflect on and discuss their weekly negotiations in small working groups of either 14 or 16 students.
The first half of the course will introduce students to distributive and integrative bargaining techniques as well as the importance of developing a negotiation strategy and a detailed plan for each negotiation. The second half of the course will focus on the importance of power, gender, culture, ethics, and emotions, among other issues, in representative negotiations.

Class Actions

Class actions have become a key element of the Canadian civil justice system. Building on the tradition of public interest litigtation, they seek to promote access to justice, judicial economy and behaviour modification, while supporting traditional procedural values. The interface between these aspirations has generated considerable interest and debate among practitioners and academics alike.

In this seminar, we welcome a series of leading counsel, judges and professors to discuss with us topics such as the roles of class counsel and defense counsel, and related ethical issues; costs (who should pay and when and how much) and principals of funding and financing; the role of court-approved settlements in maximizing value for the class; the role of the representative plaintiff and the ways in which the interests of the class can best be served; and parallel and overlapping cross-border class actions.

This is an excellent seminar for those considering a career in civil litigation and for those interested in the way class actions are transforming the role of civil justice in society.