Bullshit Flashcards

1
Q

the duty of the lawyer to keep the information provided by the client confidential is called what?

A

Solicitor-Client privilege

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2
Q

Describe some situations when you should hire a lawyer?

A
  • forming a business organization
  • intellectual property
  • selling a business
  • forming contracts
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3
Q

How do you find an appropriate lawyer?

A
  1. make a list of referrals, and use legal referring website (provincial law society)
  2. meet with each lawyer you find appropriate
  3. Establish mutual trust
  4. Continuously reevaluate relationship
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4
Q

How do lawyers bill their clients

A
  1. fixed fee
  2. hourly rate: time spent
  3. 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
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5
Q

What is the law society’s complaint resolution process for lawyer conduct?

A
  1. mediation
  2. formal investigation (if warranted)
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5
Q

What is the law society’s complaint resolution process for lawyer conduct?

A
  1. mediation
  2. formal investigation (if warranted)
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6
Q

What is the Law?

A

The body of rule made by government that can enforced by the courts or by other government agencies.

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7
Q

Substantive Law

A

the rights and rules that govern behaviour and set limits on conduct.

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8
Q

Procedural Law determines what?

A

how substantive laws will be enforced.

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9
Q

Branch of law including constitutional law that determines how the country is governed and regulated our relationship with the government.

A

Public Law.

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10
Q

Branch of the law that governs personal, social, and business relationships;

A

private law

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11
Q

what province has a different noncriminal system based on the French civil code (that emphasizes that prior decisions do not constitute binding precedents)

A

Quebec.

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11
Q

what province has a different noncriminal system based on the French civil code (that emphasizes that prior decisions do not constitute binding precedents)

A

Quebec.

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12
Q

What is Stare Decisis?

A

A system of justice where the decision of a judge is binding on all judges in lower courts.

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13
Q

What is bijuralism

A

the idea that two legal traditions - civil law and common law coexist in Canada (does no exclude rules such as international law)

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14
Q

What does the court of Chancery (equity) deal with?

A

matters that could not be handled adequately or fairly by the common law courts

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15
Q

When was the first Constitution Act (British North American act)?

A

1867.

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16
Q

When was the Statute of Westminister

A

1931.

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17
Q

When was the second constitution Act (Pierre Trudeau)

A

1982.

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18
Q

What are the three elements of Canada’s constitution?

A
  • statutes
  • case law: jurisdiction to create statutes
  • conventions: unwritten rules dictating how government is to operate and include the law
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19
Q

What does sections 91 and 92 of the constitution delegate?

A

powers between federal (S.91) and provincial (S.92) governments.

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20
Q

The government divides the law making authority among the following three branches?

A
  1. legislative branch: creates legislation/statutes
  2. Judicial: makes case law
  3. Executive branch: implements the law
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21
Q

What groups have exclusive self-governing powers?

A

First Nations people.

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22
Q

the first piece of indigenous self-governing legislation was called the…

A

Cree-Naskapi (of Quebec) Act

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23
Q

Which section of the constitution act (1982) recognizes existing indigenous treaty rights?

A

Section 35.

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24
Q

Paramountcy

A

the event when prov/fed laws overlap, the federal legislation is followed

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25
Q

When was Canadian Bill of Rights made, and what did it attempt to do?

A

-made in 1960. Attempted to limit authority of federal government to violate human rights.

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26
Q

When was the Charter added to the constitution?

A

1982.

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27
Q

What sections of the constitution state the limitations of the Charter?

A

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

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28
Q

What are fundamental freedoms in the Charter?

A
  • freedom of conscience and religion
  • freedom of thought, belief, opinion, and expression
  • freedom of peaceful assembly and association
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29
Q

What are fundamental freedoms in the Charter?

A
  • freedom of conscience and religion
  • freedom of thought, belief, opinion, and expression
  • freedom of peaceful assembly and association
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30
Q

What are some of our democratic rights?

A
  • right to vote and be elected (if of age and mental ability)
  • S.4 ensures election must be at least every 5 years.
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30
Q

What are some of our democratic rights?

A
  • right to vote and be elected (if of age and mental ability)
  • S.4 ensures election must be at least every 5 years.
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31
Q

What section of the charter regards mobility rights?

A

S.6: we can live anywhere in Canada as well as enter and leave the country at will.

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31
Q

What section of the charter regards mobility rights?

A

S.6: we can live anywhere in Canada as well as enter and leave the country at will.

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32
Q

What does section S.7 state rights to?

A
  • right to life, liberty, and the security of person.
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33
Q

What do sections 8/9 of the charter prohibit?

A
  • unreasonable search/seizure (8)
  • arbitrary imprisonment (9)
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34
Q

What section of the charter prohibits discrimination?

A

S.15.

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35
Q

What do are language rights entail?

A

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

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36
Q

Quebec dissent and referendum:** might not be important but learn more

A
  • meech lake accord
  • Charlottetown accord
  • re: unilateral secession of Quebec
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36
Q

Quebec dissent and referendum:** might not be important but learn more

A
  • meech lake accord
  • Charlottetown accord
  • re: unilateral secession of Quebec
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37
Q

What does the Canadian Human Rights Act (CHRA) ensure?

A

individuals have access to employment without barriers
- access to facilities, services, and accommodations

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38
Q

Where are humans rights legislations cases heard?

A

tribunals.

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39
Q

Who did S.67: (prohibited complaints related to Indian act), disproportionately affect?

A

registered First Nations people, who did not have access to human right protections (they were discriminated by the very nature of the Indian act)

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40
Q

What is ADR?

A

Alternative Dispute Resolution.

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41
Q

What are the main methods to ADR

A

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

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41
Q

What are the main methods to ADR

A

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

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42
Q

What is balance of probailities

A

to succeed plaintiff must prove their case to be likelier then 50%, (***51% - to tip scales in their favour)

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43
Q

what is the hierarchy of courts (in typical system)

A

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

43
Q

what is the hierarchy of courts (in typical system)

A

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

44
Q

What are the main steps of civil litigation?

A

1) Discovery
2) Trial
3) Judgement

45
Q

What are the pre-trial procedures?

A
  1. Pleadings
  2. Discovery
46
Q

What are the components of pleadings (pre-trial procedure)

A
  • Statement of claim (plaintiff)
  • Statement of Defence (defendant)
  • Counterclaim/Defence to Counterclaim
47
Q

What are the components of pleadings (pre-trial procedure)

A
  • Statement of claim (plaintiff)
  • Statement of Defence (defendant)
  • Counterclaim/Defence to Counterclaim
48
Q

What are the components of discovery? (pre trial procedures)

A
  1. Documents/records
  2. Examination for discovery: verbal examination of the witnesses under oath (***DEPOSITION)
    - pre trial conference
    - offer to settle
49
Q

What are the process of trial

A

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.

49
Q

What are the process of trial

A

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.

50
Q

is it guaranteed that the money awarded in a judgment will be payed?

A

no.

51
Q

What are class actions?

A

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.

51
Q

What are class actions?

A

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.

52
Q

What is done to ensure a tribunal is fair?

A
  1. Authority of decision maker (points to statutes in charter to justify decision)
  2. Fairness of procedure (remains impartial)
53
Q

What do the words certiorari and mandamus mean?

A

certiorari: nullifies tribunals decision
Mandamus: compelling order for government to perform a duty

53
Q

What do the words certiorari and mandamus mean?

A

certiorari: nullifies tribunals decision
Mandamus: compelling order for government to perform a duty

54
Q

What is a tort?

A

a social or civil wrong that gives rise to the right to sue.

55
Q

What is a tort?

A

a social or civil wrong that gives rise to the right to sue. (negligence)

56
Q

what are remedies for tort damages?

A

money.

57
Q

what is the basis of tort law?

A

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).

58
Q

What are the different tort classification?

A
  1. Intentional (they intended to be negligent)
  2. Non-intentional (vice-versa)
  3. Strict-liability
59
Q

What is an example of an intentional tort?

A

Assault/Battery: the person intended to cause you harm.

60
Q

what is the basis of Self-Defence

A
  • necessary force to defend self or eject trespassers is permissible.
  • consent is a defene
61
Q

What are the conditions that constitutes false imprisonment?

A
  1. Personal Liberty is totally restrained.
  2. Restraint is unlawful
62
Q

What is the defence against false imprisonment?

A

Citizen’s arrest, s.494 of criminal code.
- restraint may be justified if person has done something warranting arrest.

63
Q

What is section 494 (1) of criminal code?

A

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/

64
Q

What is included in section 494 (2) + (3) of the criminal code?

A

(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.

65
Q

What are the conditions malicious prosecution?

A
  1. Defendant in the tort action must have ignited a criminal (/quasi criminal) prosecution
  2. Accused acquitted or prosecution abandoned.
  3. Prosecution motivated by malice.
  4. Not reasonable to originally prosecute with criminal action.
66
Q

What is private nuisance?

A

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
67
Q

What is private nuisance?

A

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
68
Q

What is defamation?

A

a detrimental false statement about someone.

Must be public (communicated to 3rd party) and broadcast.

69
Q

What is defamation?

A

a detrimental false statement about someone.

Must be public (communicated to 3rd party) and broadcast.

70
Q

What is cyber libel?

A

a post on internet that is untrue and damaging about someone else.

71
Q

What is cyber libel?

A

a post on internet that is untrue and damaging about someone else.

72
Q

What is the difference between slander and libel?

A

Slander: spoken defamation
Libel: “written” defamation

73
Q

What are defences to defamation action:

A
  1. Truth (defence of justification)
  2. Absolute privilege
  3. Qualified privilege
  4. Fair comment
  5. Public Interest responsible journalism
74
Q

What are defences to defamation action:

A
  1. Truth (defence of justification)
  2. Absolute privilege
  3. Qualified privilege
  4. Fair comment
  5. Public Interest responsible journalism
75
Q

What must be proved by the plaintiff in the case of injurious falsehood (product defamation/ trade libel)

A
  1. A false statement was. made by the defendant disparaging the plaintiff’s business, goods, or property;
  2. It was published to a third person;
  3. Maliciously and without just cause or excuse; and
  4. It resulted in special damages in the form of pecuniary loss
76
Q

What is injurious falsehood:

A
  • also known as trade (mark) libel.
  • statement that damages interest in a person’s property, products, or business
77
Q

What is injurious falsehood:

A

protects an interest in a person’s property, products, or business

78
Q

What are some other torts

A

breach of contract, intimidation, deceit, conspiracy to injure, passing off, misuse of confidential information, invasion of privacy.

79
Q

What is the reasonable foreseeability test:

A

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.

80
Q

What is the anns case:

A

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.

81
Q

What is misfeasance?

A

An act that cause harm to another (wrongdoing)
- court will provide remedy

82
Q

what is nonfeasance?

A

failure to prevent an injury?
- courts reluctant to provide remedy

83
Q

What is question asked in the reasonable person test:

A

what would a reasonably prudent person, in possession of all the facts of the case, have done is this situation?

84
Q

what does the “But For” test try to answer?

A

whether the damage is the direct result of the plaintiffs careless conduct.

85
Q

What is the remoteness test:

A

test to determine whether the specific type of injury suffered was reasonable forseeable.

  • how foreseeable was injury:
86
Q

What is the thin skull rule:

A

we take our victims as we find them (one is liable for the full extent of injuries suffered)

87
Q

What are the three defences to a negligence claim:

A
  1. voluntary assumption of risk
  2. contributory negligence
  3. Illegality
88
Q

What is occupier’s liability?

A

In common law, an occupier of property owes a duty to people who come onto the property as visitors.

89
Q

What is the duty of care of the owner in occupier’s liability?

A
  1. the condition of the premises
  2. the activities on the premises
  3. the conduct of third parties on the premises
90
Q

What is innkeepers liability?

A

duty of innkeeper to safeguard guests from wrongful acts of others.

91
Q

What is strict liability?

A

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.

92
Q

What is product liability?

A

Manufacturers are liable for injuries caused by defective products

93
Q

negligent misstatement:

A

people who suffer economic loss because of professional’s negligent statement may recover damages.

94
Q

Breach a standard of care? (professional liability)

A

professional are experts held to a high standard.

95
Q

What is professional insurance?

A

covers damages for errors and omissions.
premiums may be significant business expense.
may cover legal costs when professional is sued.

96
Q

what is the purpose of insurance

A

to reduce the cost of loss by spreading the risk from the insured to the insurer.

97
Q

What is liability insurance?

A

covers damage caused by negligence of self or employees.

98
Q

what does property insurance cover the loss of?

A

building (due to fire, etc.)
- comprehensive covers everything except for what is specifically excluded.

99
Q

what is business interruption insurance?

A

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.

100
Q

health and l life insurance?

A

life, provides dependants / key person
- happens after death of insured.

health
- medical: covers health care expenses
- disability: provides income for sable worker.

100
Q

health and l life insurance?

A

life, provides dependants / key person
- happens after death of insured.

health
- medical: covers health care expenses
- disability: provides income for sable worker.

101
Q

What is bonding;

A

a written agreement where a person decides to perform a specific act, such as fulfilling a contract’s obligations or appearing in court

102
Q

What is fidelity bond?

A

employee becomes liable to bonding company

103
Q

What is surety bond?

A

pays compensation if a job is not completed or completed on time.

104
Q

What is the contra preferentum rule?

A
  • contract ambiguities are interpreted to favour the party that did not draft the contract.
  • coverage broadly construed
  • exclusion narrowly construed
104
Q

What is the contra preferentum rule?

A
  • contract ambiguities are interpreted to favour the party that did not draft the contract.
  • coverage broadly construed
  • exclusion narrowly construed
105
Q

What is the duty of the insured:

A
  • must disclose pertinent information and changes in pertinent information.
  • affects risk and insurance rates.
106
Q

what is the duty of insurers?

A

to process claims fairly
- arrange legal representation and a defence for the insured.

106
Q

what is the duty of insurers?

A

to process claims fairly
- arrange legal representation and a defence for the insured.

107
Q

What is subrogation?

A
  • once an insurer has paid out on a claim, they an step into the shoes of the insured.
108
Q

What is the insurers right to salvage?

A

right to sell damaged or recovered goods.