Sunday, January 10, 2016

Parties to a disputed claim

In any court or regulatory tribunal there are a minimum of three participants. First, the party seeking an order. This the prosecutor in a criminal or regulatory matters or the plaintiff or applicant in a civil or family case. Second, the party seeking to avoid an order. This is the defendant or accused in a criminal or regulatory matter or the defendant or respondent in a civil or family matter. Finally the party who decides whether to make an order. This is the judge, justice of the peace or tribunal. Often the parties are made up of more than one person. So person making the decision is sometimes a judge with a jury and tribunals are usually made of more than one person. The accused in a criminal case can be several people and the plaintiff in a civil case can actually be many different people. It's important to remember the parties seeking an order or seeking to avoid an order are not impartial. They want to win. Accordingly they will focus all their energy on digging up evidence that supports their position and trying to find ways to  uncut evidence that hurts them. As a result, at least if the parties prepare properly, all conceivable evidence for both sides will come forward. The party deciding, by contrast, is and must be totally impartial. The deciding party cannot be inclined to anyone and must consider the evidence in a dispassionate way. A biased judge is no judge at all. 
We are lucky in Canada that, in general, parties are well prepared and cases are fully put forward. As for the judges and tribunals Canada has an admirable history -- I have never seen, or even heard of, a corrupt judge or tribunal. Many times I have disagreed with judges' decisions but I have never seen them as biased or corrupt. 

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