Bullshit Flashcards
the duty of the lawyer to keep the information provided by the client confidential is called what?
Solicitor-Client privilege
Describe some situations when you should hire a lawyer?
- forming a business organization
- intellectual property
- selling a business
- forming contracts
How do you find an appropriate lawyer?
- make a list of referrals, and use legal referring website (provincial law society)
- meet with each lawyer you find appropriate
- Establish mutual trust
- Continuously reevaluate relationship
How do lawyers bill their clients
- fixed fee
- hourly rate: time spent
- contingency fee: the lawyer receives a percentage of what the client collects.
- disbursements; cost incurred by lawyer of client, reimbursed by client.
- retainer; a deposit held in a trust account
What is the law society’s complaint resolution process for lawyer conduct?
- mediation
- formal investigation (if warranted)
What is the law society’s complaint resolution process for lawyer conduct?
- mediation
- formal investigation (if warranted)
What is the Law?
The body of rule made by government that can enforced by the courts or by other government agencies.
Substantive Law
the rights and rules that govern behaviour and set limits on conduct.
Procedural Law determines what?
how substantive laws will be enforced.
Branch of law including constitutional law that determines how the country is governed and regulated our relationship with the government.
Public Law.
Branch of the law that governs personal, social, and business relationships;
private law
what province has a different noncriminal system based on the French civil code (that emphasizes that prior decisions do not constitute binding precedents)
Quebec.
what province has a different noncriminal system based on the French civil code (that emphasizes that prior decisions do not constitute binding precedents)
Quebec.
What is Stare Decisis?
A system of justice where the decision of a judge is binding on all judges in lower courts.
What is bijuralism
the idea that two legal traditions - civil law and common law coexist in Canada (does no exclude rules such as international law)
What does the court of Chancery (equity) deal with?
matters that could not be handled adequately or fairly by the common law courts
When was the first Constitution Act (British North American act)?
1867.
When was the Statute of Westminister
1931.
When was the second constitution Act (Pierre Trudeau)
1982.
What are the three elements of Canada’s constitution?
- statutes
- case law: jurisdiction to create statutes
- conventions: unwritten rules dictating how government is to operate and include the law
What does sections 91 and 92 of the constitution delegate?
powers between federal (S.91) and provincial (S.92) governments.
The government divides the law making authority among the following three branches?
- legislative branch: creates legislation/statutes
- Judicial: makes case law
- Executive branch: implements the law
What groups have exclusive self-governing powers?
First Nations people.
the first piece of indigenous self-governing legislation was called the…
Cree-Naskapi (of Quebec) Act
Which section of the constitution act (1982) recognizes existing indigenous treaty rights?
Section 35.
Paramountcy
the event when prov/fed laws overlap, the federal legislation is followed
When was Canadian Bill of Rights made, and what did it attempt to do?
-made in 1960. Attempted to limit authority of federal government to violate human rights.
When was the Charter added to the constitution?
1982.
What sections of the constitution state the limitations of the Charter?
S.1: states interference may be justified in a free . , democratic society
S.33: not-withstanding clauses; allows infringement on the charter rights but must be reviewed every 5 years.
S. 32 (1): restricts charter to government activities
What are fundamental freedoms in the Charter?
- freedom of conscience and religion
- freedom of thought, belief, opinion, and expression
- freedom of peaceful assembly and association
What are fundamental freedoms in the Charter?
- freedom of conscience and religion
- freedom of thought, belief, opinion, and expression
- freedom of peaceful assembly and association
What are some of our democratic rights?
- right to vote and be elected (if of age and mental ability)
- S.4 ensures election must be at least every 5 years.
What are some of our democratic rights?
- right to vote and be elected (if of age and mental ability)
- S.4 ensures election must be at least every 5 years.
What section of the charter regards mobility rights?
S.6: we can live anywhere in Canada as well as enter and leave the country at will.
What section of the charter regards mobility rights?
S.6: we can live anywhere in Canada as well as enter and leave the country at will.
What does section S.7 state rights to?
- right to life, liberty, and the security of person.
What do sections 8/9 of the charter prohibit?
- unreasonable search/seizure (8)
- arbitrary imprisonment (9)
What section of the charter prohibits discrimination?
S.15.
What do are language rights entail?
French and English have equal status.
- all federal government activities must be available in both official languages.
- guarantee for minority language education rights
- cannot be overridden by S.33
Quebec dissent and referendum:** might not be important but learn more
- meech lake accord
- Charlottetown accord
- re: unilateral secession of Quebec
Quebec dissent and referendum:** might not be important but learn more
- meech lake accord
- Charlottetown accord
- re: unilateral secession of Quebec
What does the Canadian Human Rights Act (CHRA) ensure?
individuals have access to employment without barriers
- access to facilities, services, and accommodations
Where are humans rights legislations cases heard?
tribunals.
Who did S.67: (prohibited complaints related to Indian act), disproportionately affect?
registered First Nations people, who did not have access to human right protections (they were discriminated by the very nature of the Indian act)
What is ADR?
Alternative Dispute Resolution.
What are the main methods to ADR
negotiation: decision making is left to disputing parties
mediation: neutral third party assists resolution making
arbitration: independent third party makes binding decision in matter under dispute
What are the main methods to ADR
negotiation: decision making is left to disputing parties
mediation: neutral third party assists resolution making
arbitration: independent third party makes binding decision in matter under dispute
What is balance of probailities
to succeed plaintiff must prove their case to be likelier then 50%, (***51% - to tip scales in their favour)
what is the hierarchy of courts (in typical system)
lowest level: provincial trial court
2nd level: superior court (highest provincial trial court or federal court)
3rd level: Provincial/Federal Court of Appeal
highest level: Supreme Court of Canada
what is the hierarchy of courts (in typical system)
lowest level: provincial trial court
2nd level: superior court (highest provincial trial court or federal court)
3rd level: Provincial/Federal Court of Appeal
highest level: Supreme Court of Canada
What are the main steps of civil litigation?
1) Discovery
2) Trial
3) Judgement
What are the pre-trial procedures?
- Pleadings
- Discovery
What are the components of pleadings (pre-trial procedure)
- Statement of claim (plaintiff)
- Statement of Defence (defendant)
- Counterclaim/Defence to Counterclaim
What are the components of pleadings (pre-trial procedure)
- Statement of claim (plaintiff)
- Statement of Defence (defendant)
- Counterclaim/Defence to Counterclaim
What are the components of discovery? (pre trial procedures)
- Documents/records
- Examination for discovery: verbal examination of the witnesses under oath (***DEPOSITION)
- pre trial conference
- offer to settle
What are the process of trial
Plaintiff presents case and witnesses
- attempt to achieve burden of proof
- cross examination by defendant’s lawyer
- plaintiff’s lawyer is prohibited from asking leading questions.
What are the process of trial
Plaintiff presents case and witnesses
- attempt to achieve burden of proof
- cross examination by defendant’s lawyer
- plaintiff’s lawyer is prohibited from asking leading questions.
is it guaranteed that the money awarded in a judgment will be payed?
no.
What are class actions?
identifiable class of persons with a common issue.
- reduce number of lawsuits, leads to consistently result.
- lower cost for parties and court system
- judgement is binding to every member of the class.
What are class actions?
identifiable class of persons with a common issue.
- reduce number of lawsuits, leads to consistently result.
- lower cost for parties and court system
- judgement is binding to every member of the class.
What is done to ensure a tribunal is fair?
- Authority of decision maker (points to statutes in charter to justify decision)
- Fairness of procedure (remains impartial)
What do the words certiorari and mandamus mean?
certiorari: nullifies tribunals decision
Mandamus: compelling order for government to perform a duty
What do the words certiorari and mandamus mean?
certiorari: nullifies tribunals decision
Mandamus: compelling order for government to perform a duty
What is a tort?
a social or civil wrong that gives rise to the right to sue.
What is a tort?
a social or civil wrong that gives rise to the right to sue. (negligence)
what are remedies for tort damages?
money.
what is the basis of tort law?
someone was negligent. (they owed you a certain duty of care, and did not abide by their duty)
ex. you slip and fall on a wet hallway. However, there was no wet floor sign. The custodian had a duty of care to you to put that sign up but didn’t which shows negligence).
What are the different tort classification?
- Intentional (they intended to be negligent)
- Non-intentional (vice-versa)
- Strict-liability
What is an example of an intentional tort?
Assault/Battery: the person intended to cause you harm.
what is the basis of Self-Defence
- necessary force to defend self or eject trespassers is permissible.
- consent is a defene
What are the conditions that constitutes false imprisonment?
- Personal Liberty is totally restrained.
- Restraint is unlawful
What is the defence against false imprisonment?
Citizen’s arrest, s.494 of criminal code.
- restraint may be justified if person has done something warranting arrest.
What is section 494 (1) of criminal code?
Anyone may arrest without warrant.
a) a person whom he find committing indictable offence.
b) a person who, on reasonable grounds he believes
i. has committed a criminal offence.
ii. is escaping from and freshly pursued by persons who have lawful authority to arrest that person/
What is included in section 494 (2) + (3) of the criminal code?
(2) the owner of a property may arrest a person without a warrant if they find them committing a criminal offence related to the property
a) at the time
b) within reasonable time after, on reasonable grounds w/o police.
(3) Anyone other than police who arrests without warrant shall deliver person to police officer.
What are the conditions malicious prosecution?
- Defendant in the tort action must have ignited a criminal (/quasi criminal) prosecution
- Accused acquitted or prosecution abandoned.
- Prosecution motivated by malice.
- Not reasonable to originally prosecute with criminal action.
What is private nuisance?
when a party uses property in a way that causes damages to property or interferes with a neighbour’s use or enjoyment of their property.
- Grounds for private nuisance (1) substantial and (2) unreasonable
What is private nuisance?
when a party uses property in a way that causes damages to property or interferes with a neighbour’s use or enjoyment of their property.
- Grounds for private nuisance (1) substantial and (2) unreasonable
What is defamation?
a detrimental false statement about someone.
Must be public (communicated to 3rd party) and broadcast.
What is defamation?
a detrimental false statement about someone.
Must be public (communicated to 3rd party) and broadcast.
What is cyber libel?
a post on internet that is untrue and damaging about someone else.
What is cyber libel?
a post on internet that is untrue and damaging about someone else.
What is the difference between slander and libel?
Slander: spoken defamation
Libel: “written” defamation
What are defences to defamation action:
- Truth (defence of justification)
- Absolute privilege
- Qualified privilege
- Fair comment
- Public Interest responsible journalism
What are defences to defamation action:
- Truth (defence of justification)
- Absolute privilege
- Qualified privilege
- Fair comment
- Public Interest responsible journalism
What must be proved by the plaintiff in the case of injurious falsehood (product defamation/ trade libel)
- A false statement was. made by the defendant disparaging the plaintiff’s business, goods, or property;
- It was published to a third person;
- Maliciously and without just cause or excuse; and
- It resulted in special damages in the form of pecuniary loss
What is injurious falsehood:
- also known as trade (mark) libel.
- statement that damages interest in a person’s property, products, or business
What is injurious falsehood:
protects an interest in a person’s property, products, or business
What are some other torts
breach of contract, intimidation, deceit, conspiracy to injure, passing off, misuse of confidential information, invasion of privacy.
What is the reasonable foreseeability test:
Test to see if it would be apparent to a prudent person that the conduct was likely to cause an injury, a duty is owed.
What is the anns case:
two step test for determining duty of care
1. foreseeable injury and proximity
2. provides exceptions or modifications to the primary test for policy reasons.
What is misfeasance?
An act that cause harm to another (wrongdoing)
- court will provide remedy
what is nonfeasance?
failure to prevent an injury?
- courts reluctant to provide remedy
What is question asked in the reasonable person test:
what would a reasonably prudent person, in possession of all the facts of the case, have done is this situation?
what does the “But For” test try to answer?
whether the damage is the direct result of the plaintiffs careless conduct.
What is the remoteness test:
test to determine whether the specific type of injury suffered was reasonable forseeable.
- how foreseeable was injury:
What is the thin skull rule:
we take our victims as we find them (one is liable for the full extent of injuries suffered)
What are the three defences to a negligence claim:
- voluntary assumption of risk
- contributory negligence
- Illegality
What is occupier’s liability?
In common law, an occupier of property owes a duty to people who come onto the property as visitors.
What is the duty of care of the owner in occupier’s liability?
- the condition of the premises
- the activities on the premises
- the conduct of third parties on the premises
What is innkeepers liability?
duty of innkeeper to safeguard guests from wrongful acts of others.
What is strict liability?
Liability on the owner/occupier when there is no fault.
- Ex. a dangerous situation is created by an employee unusual use of property which is inherently dangerous, the employer is responsible, although the employer has done nothing wrong.
What is product liability?
Manufacturers are liable for injuries caused by defective products
negligent misstatement:
people who suffer economic loss because of professional’s negligent statement may recover damages.
Breach a standard of care? (professional liability)
professional are experts held to a high standard.
What is professional insurance?
covers damages for errors and omissions.
premiums may be significant business expense.
may cover legal costs when professional is sued.
what is the purpose of insurance
to reduce the cost of loss by spreading the risk from the insured to the insurer.
What is liability insurance?
covers damage caused by negligence of self or employees.
what does property insurance cover the loss of?
building (due to fire, etc.)
- comprehensive covers everything except for what is specifically excluded.
what is business interruption insurance?
covers loss of profits in the case of unforeseen event that causes business to cease operations. may also cover the expenses of bring the business back into operations.
health and l life insurance?
life, provides dependants / key person
- happens after death of insured.
health
- medical: covers health care expenses
- disability: provides income for sable worker.
health and l life insurance?
life, provides dependants / key person
- happens after death of insured.
health
- medical: covers health care expenses
- disability: provides income for sable worker.
What is bonding;
a written agreement where a person decides to perform a specific act, such as fulfilling a contract’s obligations or appearing in court
What is fidelity bond?
employee becomes liable to bonding company
What is surety bond?
pays compensation if a job is not completed or completed on time.
What is the contra preferentum rule?
- contract ambiguities are interpreted to favour the party that did not draft the contract.
- coverage broadly construed
- exclusion narrowly construed
What is the contra preferentum rule?
- contract ambiguities are interpreted to favour the party that did not draft the contract.
- coverage broadly construed
- exclusion narrowly construed
What is the duty of the insured:
- must disclose pertinent information and changes in pertinent information.
- affects risk and insurance rates.
what is the duty of insurers?
to process claims fairly
- arrange legal representation and a defence for the insured.
what is the duty of insurers?
to process claims fairly
- arrange legal representation and a defence for the insured.
What is subrogation?
- once an insurer has paid out on a claim, they an step into the shoes of the insured.
What is the insurers right to salvage?
right to sell damaged or recovered goods.
