BUSINESS (Courts,Torts, Negligence) Flashcards
Statute law:
-legislation
-acts
-codes
-bylaws
*passed in parliament, legislature, municipal levels of government
Common law:
-“judge made law”
-precedent setting law
>created by judges
Severance:
-good example of where both statute and common exist
-individual: different amount of weeks depending on how long you have been there
-common law: centered on compensation or damages
>how long will it take to get re-hired in a similar position (depends on age, job)
Termination with and without just cause:
-an employer can fire an employee for just cause and not owe any termination pay at common law
Criminal law:
-accounts for less than 0.5% of all law
-the relationship between the State and the individual
2 types of criminal offences:
-summary convictions
-indictable convictions
Civil law:
-relationship between two individuals
Summary conviction (indictable offense):
-equivalent to “misdemeanor” or “felony” charges
-summary: quick and simple manner
-less serious than indictable offences
-legal procedures and punishments tend to be less onerous
Max fine for summary conviction:
-$2000 and/or 6 months in jail
Summary convictions examples:
-engaging in a prize fight
-disorderly conduct
-disturbing religious worship or certain meetings
Indictable offenses:
-murder
-manslaughter
-sexual assault
-break and entry
Court system:
-administrative tribunals
-justice of the peace
-provincial court
-king’s bench
-court of appeal
-supreme court
Administrative tribunals:
-quasi-judicial
-take care of a lot of rules/regulations that would overwhelm the judiciary
-created by specific statue
Ex. vet: go before you peers (better than having a judge that doesn’t know about vet med)
Justice of the peace:
-don’t conduct marriages (unless also a marriage commissioner)
-primarily function to release people on bail
-handle some summary offences
Provincial court (peoples court):
-90% of cases end up in this court
-95% of all criminal matters
-preliminary hearings
-quasi-criminal matters
-civil claims limits vary by province
-all summary offenses
-indictable offences: expect murder (Queen’s court)
Provincial limits small claims court:
-Sask: $30,000
-AB: $50,000
BC: $35,000
Court of King’s bench
-civil cases
-wills, estates, family law
-indictable offences where elect to be tried by a judge and jury
“trial courts”:
-provincial and queen’s court
“appellate” courts:
-court of appeal and supreme court
Supreme court of Canada:
-queen’s bench appeals to court of appeal
-court of appeal appeals to supreme court of Canada
*automatic right to appeal to court of appeal, but must apply to supreme court and issue must be National importance
Federal court:
-deals with lawsuits relating to Government of Canada
Tort:
-the wrong on injury when a person or corporation causes a wrong or injury to an individual
2 types of tort:
- Intentional
- Unintentional
Intentional tort:
-intend to cause harm or injury
1. personal harm: assault(verbal) and battery(when actually do it), false imprisonment
2. Economic harm: defamation, slander (verbal) and libel (written)
3. Interference with land or chattel (things you own): trespassing
Remedy for damages related to breaching a contract or committing a tort:
-essentially the same and usually involves money
Strict liability (intentional tort):
-build a dam next to a coal mine
-water overflows the dam, even though built to specifications
-the dam owner blames the enginers
-court finds dam owner at fault
*anyone storying dangerous goods are responsible
Unintentional tort (negligence):
-up until 1932 it was difficult to decide whether conduct was negligent or not
>could only sue someone if they had a ‘contract’ with them
*court corrected it a came up with “LOVE THY NEIGHBOUR DOCTRINE”
Love they neighbour:
4 elements
-was a duty of care owed?
-if owed, the what standard of care is required?
>every activity requires a reasonable level of care
-was there a breach in this standard?
-is there legal causation?
Why is the Love thy neighbour doctrine of significance to veterinarians?
-occupier’s liability (trespasser, licensee, invitee)
-Occupier has a duty of care to those coming onto their land (DUTY OF CARE OWED)
Trespasser:
-uninvited, generally enter at own risk
-even if not invited some duty of care still exists
-“attractive nuisance”
“attractive nuisance”:
-duty of care applies to a trespasser who is enticed to trespass and then gets injured
Ex. swimming pool with not high enough fence
Licensee:
-comes as a social visitor
-occupier must warn of potential risks
Invitee:
-people coming to a business: enticed to come
-highest standard of care
>must warn of all known dangers, and anticipate other dangers within reason
*veterinary clinic: clients are invitees
Vicarious liability:
-extension of negligence beyond the person who was negligent
-employer negligent for acts of the employee
Saying I’m sorry:
-not considered an admission of guilt
Agent:
-person appointed to act for another, usually in contract matters
-fiduciary relationship: “relationship of utmost faith” or “duty of loyalty”
-must act selfishlessly and must put the principal first
Business types:
-sole proprietorships
-partnerships
-coporations
-agency
-nonprofit or not-for-profit
-business trusts agent
Sole proprietorship:
-simplest form of a business organization
-one person owns the entirety of the business but may have many employees
-may have business name (may or may not be registered)
*income tax is treated as an individual
-responsible for all net losses and sole proprietor makes all the business decisions
-most vets will incorporate b/c of tax issues
Partnership Act;
-same in all provinces
-two or more people who jointly carry on a common business with the objective being to share profits and losses
-each partner is the agent of the other
Hallmark of partnership:
-sharing of profits, but not necessarily EQUAL
Limited liability partnerships:
-general partners still have unlimited liability but not the Limited Liability Partners (cannot share in the control of the business)
>liability is limited to what they invested in the partnership
*those who take on the risk, bare the liability of it
Corporations:
-neither an individual or partnership
-SEPARATE legal entity (“person”)
-possess attributes of a natural person, but is created artificially and never dies in a natural sense
Benefits of incorporating:
-separate legal entity
-limited liability
-succession is simple
-tax avoidance
-better access to financing (lower interest rates, ‘less of a risk’)
-continuous existence
Vets and corporations:
-cannot incorporate to avoid liability
-if are found negligent and practice is sued: there is no shield
>plaintiff can come after you personally
Limited liability:
-not personally responsible for the corporation’s debts
-only limited to loss what they invested
Tax avoidance:
-lower tax rates
-paying yourself dividends vs. a wage
-lifetime capital gains exceptions (can shelter $867,000) in capital gains from personal tax)
Corporate control:
-Directors of the corporation (shareholders), select officers who operate and manage the company
-in Vet corp: shareholders may be a couple of owners
Incorporate without a lawyer:
-very inexpensive
-best to consult a lawyer and an account to ensure the business is set-up properly
>need proper share structures, articles of incorporation, bylaws, minutes, etc.
holding company:
-incorporated company used for holding investments (such as other companies)
-is a corporation=lower income tax rates
-used for tax deferral (removes assets in timely manner after retiring)
