BUSINESS LAW Flashcards
1
Q
What are the five requirements for proving negligent misrepresentation?
A
- Duty of care based on a special relationship.
- representation must be untrue, inaccurate, or misleading.
- representer must have acted negligently in making the misrepresentation.
- representer must have reasonably relied on the negligent misrepresentation.
- reliance must have been detrimental to the representer, that is, damages resulted.
2
Q
What are the 4 elements of deceit?
A
- false representation is made by defendant.
- the defendant has some level of knowledge of the falseness.
- false representation causes the plaintiff to act.
- plaintiffs action result in loss.
3
Q
What did the Supreme Court of Canada identify as the three characteristics of fiduciary relationships?
A
- acts in best interest of client
- client at mercy of the fiduciaries control or discretion
- legal or practical harm of the beneficiary by fiduciary’s excursus or discretion or control.
4
Q
What is the first step to imposing liability for breach of fiduciary duty?
A
establishing the relationship is a fiduciary one.
5
Q
Fiduciary duty
A
a duty imposed on a person who stands in a special relation of trust and loyal to another.
6
Q
The three relationships liability arises from?
A
- breach of contract
- breach of fiduciary duty
- tort of negligent misrepresentation
7
Q
Injunction
A
court order restraining a person from doing or continuing to do, a particular act.
8
Q
Does an occupier have any duty to trespassers?
A
duty is still owed but standard of care that must be met is lower than that for expected visitors.
9
Q
What are the three different types of visitors who duty could be owed?
A
- Inviteees: permitted to enter the premises for business purposes.
- license: visitor other than invitee, permitted by occupier.
- trespassing.
10
Q
Subrogation
A
where one persons becomes entitled to the rights and cause of action of another.
11
Q
libel
A
written defamation
12
Q
defamation
A
making an untrue statement that causes injury to the reputation of another person.
13
Q
What are the requirements to get charged with false imprisonment
A
physical restraint is not necessary, even if there is a threat of imprisonment, one can be accused of false imprisonment if they do not have concrete evidence that the person was committing an illegal act.
14
Q
Difference between assault and battery?
A
A - Threat of violence to a person
B- unlawful physical contact with a person.
15
Q
Vicarious liability
A
Strict liability of an employer to compensate for torts committed by an employee during the course of his or her employment.
16
Q
What are two policies that would eliminate fault?
A
no fault insurance
workers compensation
17
Q
What are two principles when it comes to tort law?
A
- the fault of the defendant, whether behaviour was improper.
- cassation of harm, whether the plaintiffs injury was the result of the defendants conduct.
18
Q
What is the purpose of tort law?
A
the purpose is to compensate victims for harm caused by the activities of other.
19
Q
Canadian Environment Assessment Act
A
Regulations under the CEAA identify specific types of projects that may require an environmental assessment.
20
Q
Canadian Environmental Protection Act
A
separate statutes address specific types of pollution or dangers to the environment.
21
Q
Food and Drug Acts
A
a comprehensive statute regulating many aspects of foods and medical and cosmetic products, since virtually all of them, if improperly processed, manufactured, stored, or labelled, may adversely affect consumers health or safety.
22
Q
Motor Vehicle Safety Act
A
a set national safety standard for motor vehicles
23
Q
Hazardous product Act
A
deals with controlled products have must be manufactured and handled in confomity with regulations under the act.
24
Q
Department of Industry Act
A
establishes the framework for the many regulatory regimes assigned to this government agency.
25
Textile Labelling Act
requires clothing to have labels with the generic name of the fabric.
26
What are key non contractual consumer protection issues?
regulation misleading advertising; regulation of quality standards affecting labelling safety performance and availability of servicing and repairs; and regulation of high risk industries that deal with the public through licensing bonding and inspection.
27
What does section 45 of the competition act say?
price fixing
market allocation
output restriction
28
What are the 3 forms of competition act
conspiracies
monopolies
mergers
29
What happens when valid federal and provincial laws conflict with each other?
Federal paramountcy rule - federal law overrides the provincial one
30
Contingency fee
a fee paid for a lawyers services only if the client is successful; there is no charge if the client is unsuccessful.
31
res judicata
a case that has already been decided by a court and cannot be brought before a court again
32
provincial divisions
no jury trials, decide whether there is enough evidence to proceed to superior court trial.
33
2 Types of trial Courts
inferior trials - created by provincial legislation
| superior trials - constitutionally, created, federal appointed judges.
34
equitable remedies
new remedies created by the courts of equity to address situations where money damages did not solve the problem.
35
equity
rules developed by the courts of equity as exceptions to existing rules of common law
36
Courts of Chancery
If common law rejects a request, an unhappy party can ask for the courts of chancery. courts created exceptions to the common law rules when they felt precedent was too harsh. They become known as courts of equity, and the rules that they developed also created precedents called the principles of equity or simply equity
37
Feudal Law
system of land ownership rooted in sovereign ownership; land was handed down to lords who gave possession of parcels of land to lesser royals in exchange for military service and loyalty.
38
Canon Law
law created by the church, which had its own jurisdiction and courts in matters pertaining to itself family law and wills.
39
What are the three meanings of common law?
A.) legal system of a common law country as opposed to a civil law country as opposed to a civil law country
b.) judge made law including equity as opposed to statute law; and (c) strict legal rules as opposed to equity (flexible principles of fairness)
40
Interpretation Act
Directs a court to take fair liberal and large interpretation of statutes
41
codify
summarize in a statute the existing common law rules governing a particular area of activity
42
Who creates subordinate legislation
Administrative law created by administrated agencies
43
Subordinate legislation
laws created by agencies whose authority is granted by statute in order to carry out purposes of the legislation.
44
Distinguish
identify a factual difference that renders a precedent inapplicable to the case before.
45
stare decisis
to stand by a previous decision
46
common law
cased based system of law originating in England and covering most of the English- speaking world - based on the recorded reasons given by courts for their decisions
47
roman law
the system of law codified by the eastern roman emperor Justinian in the 6th century.
48
civil law
the system of law involving a comprehensive legislated code.
49
Substantive law
rights and duties each person has in society
50
What are three ways to challenge statute?
Out of jurisdiction violates charter of rights and freedoms interpretation of legislation is wrong.
51
Two reasons a business may ask a court to declare a statute invalid?
the subject matter is outside the constituitional jurisdiction of the government, or the statute violates the Charter of Rights and Freedoms.
52
What does the first section of the charter state?
none of the rights set out in the charter is absolute. Section 1 states that they are all subject "to such reasonable limits prescribed by law as can be democratic society
53
When is the only time the charter of rights and freedoms can be changed?
the provinces containing at least 50 percent of the population of all the provinces.
54
Human rights
recognized entitlements encompassing traditional freedoms assiciated with civil liberty and basic human necessities
55
Federal Paramountcy
the principle that a federal law prevails over a conflicting provincial law
56
Concurrent Powers
Overlapping powers both levels of government to regulate the same activities
57
What is the courts two step process when deciding jurisdictional disputes between federal and provincial powers?
1. What does the law do and why?
The primary topic or dominant feature known as the "pith and substance' of the law is identified.
2. the court decides under which delegated power identified topic falls- where does this primary subject fit
58
Residual Powers
powers that fall within federal jurisdiction because they are not expressly allocated to the provinces by the constitution
59
Ultra Vires
beyond the powers and therefore void
60
What level does the constitution give residual powers to?
Federal government
61
What are the two levels of government in a federal country?
Federal and provincial
62
What do sections 91 and 92 of the constitution allocate?
allocates certain areas to the federal parliament and others (including power over municpalities) to the provincial legislature.
63
What do courts do?
They determine the validity of legislation. They interpret legislation. They protect humans rights. They develop case law, creating new principles to be applied to resolve disputes without court intervention. They determine disputes for the parties before the courts.
64
Case Law
a collection of individual cases decided by the courts that develop and shape legal principles.
65
Regulations
Administrative rules implemented by government as a result of authorization given a statute.
66
Statutes
pieces of legislation passed by government.
67
Basic Law
a constitution that lists the founding legal principles accepted by the citizens of a country and that they regard as legitimate and binding.
68
Who makes law?
1. The Constitution
2. Legislation
3. Court Decision
69
Why should a firm commit itself to observing a higher ethical standard than the law requires?
behaves ethically because that is how owners or managers believe it should behave. More often, however, ethical behaviour is a matter of enlightenment self interest.
70
Corporate Social Responsibility
a concept that suggests business decision makers consider ethical issues - including the interests of customers, employees, creditors the public and other stakeholders - in addition to legal and financial concerns
71
Compliance Officer
an employee who monitors regulatory and legislative requirements applicable to the business and ensures that the business complies
72
In-house counsel
a lawyer who provides legal services to a business as a full time employee of the business
73
retainer
contract between lawyer and client that describes the work that will be done and the fee that will be charged.
74
Paralegal
a non-lawyer who provides some form of legal service to the public.
75
Solicitor- client privilege
clients right to have all communications with his or her lawyer kept confidential.
76
Purpose of the National Mobility Agreement
sets the rules for temporary and permanent movement of lawyers between provinces
77
Disbarred
expelled from the law society deprived of privileges
78
Attorney
encompasses both barrister and solicitor
| lawyer in United States
79
Advocate
a barrister in Quebec
80
Notary
a solicitor in Quebec
81
Barrister
a lawyer in England who accepts cases from solicitors and presents them in court and also acts as consultant in complex legal issues
82
Solicitor
an office lawyer in England who interviews clients, carries on legal aspects of business and family affairs, and prepares cases for trial.
83
Strategies to manage legal risks
avoid the risk reduce the risk transfer the risk absorb the risk.
84
Steps to develop a legal risk management plan
1. Legal Audit
2. Prioritize legal risks based on likelihood and magnitude.
3. Strategize to address each risk from both proactive and reactive perspectives.
4. Implement the Plan
5. Regularity review and update the plan
85
Legal Audit
a review of each area, action, and interaction of the business to identify potential legal liability and legal compliance risks
86
Legal Risk Management Plan
a plan developed by a business that identifies potential legal liability and provides preventive and remedial strategies
87
Legal Risk
business activities, conduct, events, or scenarios that could expose a business to some type of legal liability
88
Super Government Organizations
Non-profit associations of governments from around the world working to find common approaches to international issues, such as the World Trade Organization or the United Nations
89
Model Law
Recommended templates for domestic laws that are developed by advisory organizations such as law reform commissions
90
Civil Liability
responsibility arising from a breach of a private law, enforced through a lawsuit initiated by the injured victim.
91
Regulatory or quasi-criminal liability
responsibility arising from breaches of less serious rules of public law, often enforced through specialized regulatory tribunals set up by the government for specific purposes.
92
Criminal Liability
responsibility arising from commission of an offence against the government or society as a whole
93
Legal Liability
responsibility for the consequences of breaking the law
94
What do judges decide?
How or if the law should be applied in the circumstances of a particular situation
95
Private Law
Law that regulates the relations between private persons and groups of private persons
96
Public Law
law that regulates the conduct of government and the relations between government and private persons.
97
What does the court have to find before they we will see an agreement as a contract?
Offer and an acceptance
98
What are the risks and benefits of standard form contracts?
Benefit:
- allows companies to lay the terms of dealing with another company.
- it allows for risk to be transferred somewhere else.
Risks:
- maybe left with no contractual rememdy
- no ability to negotiate the terms
- clauses can thought as unforeseeable
99
Revocation
Offerer ability to back out of an offer before it is accepted.
100
What are the two devices used to keep an offer open?
option - receives something in exchange for keeping offer open for an extended period.
seal - binding the contract
101
Consideration
is the price for which the promise of another is obtained. Putting it in its most basic terms the law does not enforce freebies. Both given up something. give half lottery earnings because I am nice (no consideration) water my plants give you half lottery earnings (consideration)
102
When is consideration not required?
When under seal or the court deems it promise contractual
103
Promissory Estoppel
an equitable principle where someone who relies on a gratuitous promise of another and changes his or her position as a result may be able to enforce the agreement.
104
What is the time frame to sue for breach of contract?
6 and a half years
105
Where does the burden of proving there was no contractual agreement fall on?
The one denying there was a contract.
