business law Flashcards
1
Q
are justice and law the same thing?
A
no
2
Q
what is jurisdiction?
A
the authority of a court to hear and determine cases
3
Q
is jurisdiction limited?
A
Always limited→ not one tribunal that deals with everything. It is limited through Territory, subject matter and persons
4
Q
what is public law
A
sets the rules for the relationship between the individual and society. If someone breaks a criminal law, it is seen as a wrong against society.
5
Q
what’s an example of public law?
A
taxes. the government will come after you for taxes
6
Q
what is private law?
A
conflicts between private individuals (citizen vs citizen)
Between two people
7
Q
what is an example of private law?
A
Ex: someone breaks your window (nothing to do with the government!)
8
Q
what is public national law?
A
conflicts between the state and a person (taxes, criminal law, constitutional law )
9
Q
what is public international law?
A
Laws between all the countries
10
Q
what is private national law?
A
Basically private law
Conflicts between individuals
11
Q
what is private international law?
A
also called the conflict of laws. conflicts between individuals where the laws of more than one jurisdiction are involved
12
Q
in private law is there a prosector and how many défense sides?
A
no prosecutor and two defence side s
13
Q
does Canada believe in the rule of law?
A
yes
14
Q
what is the civil code?
A
a body of rules that is the foundation for all other laws
15
Q
what is the rule of law?
A
rule of law, the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power. (china doesn’t believe in this)
16
Q
what is natural justice?
A
there should be no prejudgment or bias on the part of the judge and that the parties should be given an oppournity to be heard
17
Q
what is Audi alter parted?
A
under natural justice, the parties have to be given an opportunity to be heard
18
Q
what does the law come from?
A
legislation, jurisprudence, doctrines and custom and usage
19
Q
what is legislation?
A
the laws
20
Q
what is Jurisprudence
A
decision of the courts –> the philosophy of law
21
Q
what are Doctrines
A
the writings of legal documents
22
Q
why are section 91 and 92 important from the BNA act/ the constitution?
A
divide legislative powers between the the federal and provincial governments
23
Q
what is the difference between federal gvt and provincial gvt?
A
The federal government creates laws and manages programs and services that tend to affect the whole country, the provincial and territorial governments have powers to make decisions relating to areas of law that affect their province or territory directly
24
Q
how is the court of Quebec set up?
A
by a provincial gvt
25
what are your fundamental freedoms?
Freedom of conscious and religion
Freedom of the press
Freedom of speech
Freedom of assembly
Freedom of association
26
what is Habeas Corpus?
a writ in the constitution where a person is being detained against their will. the person is brought before a judge who will then determine if they are guilty. they feel like they are not at fault (show me the body)
27
does every province have their own charter?
yes
28
what is a charter of rights?
it protects basic rights and freedoms that are essential to keeping Canada a free and democratic society.
29
what is the federal charter?
the canadian charter of rights and freedoms
30
what is ex parte judgement?
default judgment is granted → if one party doesn't show up, other party presents all documents, witnesses to judge - judge asks like a referee (party that shows up will probably win)
31
is the Quebec charter of the federal charter more progressive?
The quebec charter is more progressive
32
what is preamble?
introductory statement in a document which states the reasons for the rest of the document
33
what is Inviolability
you can't do anything bad to a fellow citizen
34
if a persons life is in peril, does every person need to assist them?
Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.
35
what does the federal charter say about race?
every individual is equal before and unde the law based on race, national or ethic order, sex, age, mental or physical disability.
You cannot discriminate based on race, sex, civil status, age, religion, political convictions, language, social condiiton (homeless,)
36
what does the fundemental law considerations say in article 6 of the civil code of Quebec?
every person is bound to exercise his civil rights with the requirements of good faith (good intentions)
37
what is procedural law?
how a right may be exercised before the courts. how a court should be conducted
38
what are the three courts of civil law
i. The court of appeal
ii. The supreme court
iii. The court of Quebec
39
what is the court of first instance?
Lawsuit starts/originates here
First court that litigants or parties enter
Trial takes place and witnesses are heard
Sometimes jury is present
40
in the court of first instance, what is the party suing called?
plaintiff
41
in the court of first instance, what is the party being sued called?
defendant
42
what is the court of second instance?
it is an Appeal court
More than one judge (usually 3 → so they can vote at the end)
no witnesses are heard
43
in the court of second instance, what is the party appealing called?
appellate
44
in the court of second instance, what is the party being appealed called?
respondent
45
what are the two levels of the court of second instance?
court of appeal & supreme court of canada
46
what does the court of Quebec deal with?
Hears first instance (criminal or civil -- NO family or divorce matters)
47
which cases does the court of Quebec deal with? (price)
hears cases where value claimed or contract in dispute is less than $85,000
48
how are judges from the court of Quebec appointed?
the provincial gvt appoints them
49
what is the small claims court goal?
to enable people to obtain faster and less expensive settlement of minor court cases, to protect the little guy
50
how are judges appointed in a small claims court>
the provincial gvt appoints them
51
what type of cases can go see a small claims court?
- Not more than $15,000
- Plaintiff or corporation has less than 10 employees
- Debt is owed personally or directly to creditor (person suing)
52
in a small claims court, can lawyers represent litigants?
Lawyers are not allowed to represent litigants
53
in a small claims court, is there a right to appeal?
no. all decisions are final
54
what is appealing?
when someone who loses a case in a court asks a higher court to review the trials court decision
55
what is the superior court?
deals with civil and criminal cases and starts at 85,000 deals with divorce, family matters and bankcrupty
56
what is the court of appeal?
court of second instance, highest court in quebec, its the last resort, if you want to appeal go here
57
what does the court of appeal apply to?
Final judgements from superior court or court of quebec where disputed value is greater than $60,000
58
what is the supreme court of Canada?
highest Canadian court. Cases that deal with fundamental freedoms and rights → national importance
59
how many judges are in the supreme court of Canada?
9
60
are all judgments in the supreme court of Canada final?
yes. All judgements in supreme court are final (no right to appeal)
61
what is a tribunal?
specialized courts that deal with certain issues
62
what is first instance?
the first time the letigates go to court
63
what is the procedure in first instance?
to prevent or resolve a dispute, parties can privately formulate a resolution process (do this before you go to court)
64
how does legal action start?
Legal action starts with original application and summons
65
what is the original apllication?
sets out names of parties, their addresses and states the objective of the demand. the plaintiffs version of the facts
66
what is summons? (legal action)
document issued by a court ordering a specific person to appear at a specific time for some specific purpose. calls upon defendant to answer the original application from the plaintiff. the defendant will say if they will want to defend themselves or just walk away from the case. within 15 days after its service
67
what are proceedings?
document such as originating application that is a written defence to court → also called written pleadings, explain the case
68
what is a bailiff?
officer of court → serves people with papers
69
who does the plaintiff give their summons and original application to?
their bailiff
70
how many days does the defendant have to answer the original application?
only 15 days
71
what is the purpose of written pleadings? aka proceedings
to clarify the issues and to permit the parties to know each other's positions → parties may examine each other and their evidence before trial
72
what does a trial consist of?
the evidence stage, followed by an oral argument
73
what happens during the evidence stage of a trial?
the party who is supposedly at fault examines the witnessses. then the other party subits the evidence and the first party could submit evidence to rebuttal
74
what happens after the evidence stage of a trial?
the party at fault presents their arguments followed by the other party.
75
what is a subpoena?
an order to a person to present themselves at court at a specific time
76
whats an ordinary witness?
questioned on what they know, not on their opinion or what they believed happen
77
what is an expert witness?
allowed to give their opinion
78
what is hearsay evidence?
witness who tells the court something that was told to him, but not what he actually saw firsthand → this is illegal
79
what is a leading question?
a question that prompts or encourages the desired answer.
You vacant ask a leading question. The person needs a choice on what to answer, not a yes or no question.
80
what is cross examining?
you can ask leading questions
Can only reexamine something if the other side brings something up that wasn't discussed before. attempt to get the witness to say something helpful to their side
81
what is the spin doctor?
putting the fire out. If someone says something dumb, then you must spin it to make it seem smarter
82
what happens during the argument part of the trial?
The plaintiff speaks first
The defendant will point out where the plaintiff missed, the plaintiff is allowed a rebuttal
Advantage because they speak last
If the defendant does not bring witnesses they could speak first
There is some glaring point of law only
No jury in civil matters → there is one judge who makes the whole decision
83
in the procedure of appeal, who is the respondent and what does he do?
the opposing party is the respondent, the guy who responds
respondent fills out of a factum
84
does the appeal court re hear evidence?
no
85
in the procedure of appeal, what does the appellant do?
Appellant writes a brief or memorandum→ books that includes facts, jurisprudence…
86
after the appeal is heard, what do both lawyers do from each party?
lawyers for both parties make oral presentations
87
what is the factum?
A factum contains everything you can think of → all original forms, evidence… all typed out
88
what is a class action?
A group of people suing an individual or corporation
89
when can you have a class action?
you can have a class action if you've gone to superior court
90
in the class action, who represents who?
One person represents a whole class of people. The class is depending on what you are suing for
91
does the losing party pay for legal costs?
losing party pays legal costs (professional fees of lawyers not included) unless the judge says no and needs to indicate why not
92
what is execution?
the order contained in the judgment is carried out
93
can the law seize things
The law can't seize things even if you owe money.
94
what are examples of things that the law can't seize?
food, fuel, clothing necessary for life, family papers, pets, the instruments of work or tools of a persons job
95
how is the status of a person governed?
by law of his domicile
96
why is domicile important?
because it defines which laws apply to you (tax & marriage - how you split the property )
97
what are connecting factors of domicile?
kids, work
98
what are the three categories of persons?
Human beings
The state (government)
Legal persons (corporations)
99
what two rights does every person have?
patrimonial rights and personality rights
100
what are patrimonial rights?
financial rights and obligations of a person, a person’s assets, liabilities, net worth. (if you break your arm, whats that worth?)--> linked to money. if your patrimonial righyts are broken, you can be compsentaed with money.
101
can patrimonial rights be traded or sold?
yes
102
what are personality rights?
like a broken arm. cannot be sold or traded
103
can someone change their name?
yes.every person whose gender does not correlate with the one that they are born with may change their name
104
how can a person change their name?
Only a person of full age, has been domiciled in quebec for at least one year and a canadian citizen can change this (because you need to change your passport status)
105
what is the saloman vs Solomon case?
the main idea is that a corporation is a legal person distant from its shairhiolders and directors. Solomon was a sole shareholder of a company called solomon and company.
106
if the company is in debt, is the shareholder responsible?
no
107
what is a secured creditor?
A lender such as a bank who has placed a lien on a borrower's assets
108
what is the certificate of incorporation?
the date of the company, when it was created and shows the existnece of a company
109
how can businesses incorporate?
Articles of Incorporation must be filed with Industry Canada (federal companies) or Registraire des Entreprises Québec (REQ)
110
Who owns a corporation?
shareholders
111
how do you create a provincial company?
write out articles of incorporation stating who the shareholders are … and send it to the province of quebec. If they approve they send you a certificate of incorporation.
112
when should a business be run by a corporation?
when there is a lot of risk involved in creating the business
113
why do you need an accountant more than a lawyer?
because they see the tax benefits at every turn
114
what is goodwill?
the value a company gets from its brand, customer base and reputation associated with its intellectual property.
115
how can someone protect their band name?
through a trade mark
116
what are the three forms of businesses
Sole proprietorship
Partnership
Corporation
117
what is a sole propreirtoship business?
business that you are the only owner, not much risk involved
118
why is sole propprietoship very popular?
you are the one owner, its the easiest to do, doesn't cost much, don't have to know much.
119
where does a sole proprietors enter their trade name?
must enter his trade name with Registraire des Entreprises (REQ) .
120
what are some advantages of being a sole proprietor?
in charge → doesn't have to consult anyone
Many tax deductions (can write off a lot of income)
Easy to dissolve
owner of all profits → doesn't have to share them
you appoint the management
121
what are some disadvantages of being a sole proprietor?
Unlimited and personal liability for debts of the business (personal form) (BIG DISADVANTAGE)
Depends on own skills therefore cannot easily diversify
No continuity when sole proprietor leaves the business
Hard to transfer goodwill when company is sold (depends on owner)
If too much $ is made, a lot of income tax (high tax bracket)
Need to declare personal bankruptcy
122
what is a partnership form of business?
2 or more people working together.
It is still a personal form of business which means you can call yourself any name but its still you and your partner.
share the profits
123
what are the two forms of partnership?
General (commercial)
Limited (special) partnership→.
124
what is a general parternship?
partners who share and speak for each other. they are liable for the debts
125
hoe does management work in a general parternship?
both decide on how the company will be managed. the partner has strengths in all areas
126
how does profit work in a general partnership?
split the profits the way they want. if they cant decide then its split equally
127
what is a limited partnership?
partners do not speak for you, you are investing money and are responsible for that sum. rarely involved in the business and are only liable for what they put into the business
128
what is a disadvantage of limited parternships?
largely tax related
personal liability for the debts
129
what is a corporation?
a business entity that is owned by its shareholder(s), who elect a board of directors to oversee the organization's activities.
130
what kind of liability do corporations have?
limited
131
in corporations, what happens when a business owner dies?
nothing. the business continues on
132
what is Fiduciary duty
director must act with honesty, loyalty, prudence and diligence, duty to the legal person if you are a director
133
what is a private company?
50 employees or less, restriction of transfer of shares, no public offering of its shares
134
what is natural justice?
there should be no prejudgment or bias on the part of the judge and that the parties should be given an oppournity to be heard
135
when can the federal charter be changed?
only when an act of parliament being ratified by at least seven provinces that approve the change
