Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Mid 1: BLAW > Ch 1&2 + p 2-11, 11-19, 35-38 > Flashcards

Ch 1&2 + p 2-11, 11-19, 35-38 Flashcards

1
Q

Civil rights code (def)

A

A written code passed by the government. Eg. Quebec

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Common law is

A

Started in 1066. Would apply local law and customs. System of law based on precedent where no statue covers it. Can be changed by Statute ( govt made law) Thus created Stare Decisis.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Stare Decisis is

A

“Let the decision stand” Case law precedent law. Arguing by similarity or dissimilarity. First court is higher level than the second. First court is in same jurisdiction - if not can argue simmilarities. Important for business as it makes everything based on law predictable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Equity is

A

Based on fairness. Follow precedent. Used to be two courts, now it’s one. Equity prevails over common law. Ie. mortgage law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Foreclosure (def)

A

Lender process to end or close out the borrower’s equity. Courts give reasonable amount of time usually six months to either pay the debt or loose the land forever.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Canadian Constitution

A

Government written law.

Defines it’s form, structure, activities, character, and fundamental rules

Divides power between provincial (s.92) and national (s.91) governments.

Must follow steps to create law.

Parliament is supreme, it may change the law at any time by passing a new statute, amending, or cancelling.

Entrenches certain legal rights V. hard to change the law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

_S.91 of the Constitution _

A

Federal govt areas of authority

Criminal matters Banking Fisheries Immigration Federal tax Divorce

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Steps in bringing Statute (govt written law) into Law

A
  1. Introduced as a Bill given First Reading in parliament/legislature. W/o debate. Majority vote to move forward.
  2. Formally on agenda for Second reading. At Second Reading it’s debated. Approved in principle to move forward.
  3. Goes to Committee for further consideration, public input, lobby groups, etc.
  4. Goes for Third Reading. Amendments are debated. Passed to move forward.
  5. For Federal now bill goes through Three Readings in the Senate.
  6. Goes to Gov. general/Lt. Gov.
  7. Can be a long time btw introduction and law.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

S. 92 of the Constitution

A

Provincial govt areas of authority

Health, Education, Welfare, Inheritance, Prov taxes, Municipalities

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Ultra Vires (def)

A

A law that is challenged because it is beyond the authority of the government under the constitution. Can be used as a defence. If the court agrees it will strike down the law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Regulations are

A

Provide the details that give effect to that statute. Ie. workers compensation act.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Charter of Rights and Freedoms

A

Part 1 of the Constitution Act. Entrenched individual’s rights in the Constitution (1982) Cannot be amended or cancelled. Must have constitutional processed agreements of all provincial govts for changes. Can override our basic rights IF for the grater good of society (s.1, s.33) Trumps the principle of parliamentary supremacy Subject to reasonable limits

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Limits to rights under s.1

A

The charters is subject to such reasonable limits as the law prescribes provided these limits “can be demonstrably justfied in a free and democratic society.” Apply to all rights.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Grounds for attacking the validity of a statute

A

Ultra Vires Violates Charter of Rights and Freedoms.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Limits to rights under s.33

A

Notwithstanding clause. Govts. may pass laws that overrule our charter rights if they expressly state that such a law is to operate notwithstanding the provisions of the charter. Permits overruling of only s.2 ,s,7-15 Not usually used except in times of war.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Criminal Law

A
  • Offence by an individual(accused) against the state (crown).
  • Charges brought by the crown not an individual. Guilty beyond a reasonable doubt.
  • Many criminal offences are also civil wrongs.
  • Can’t be tried a second time for the same crime (Res Judicata)
  • objective is to punish & deter
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Municipal Government

A

Municipal Act of BC governs. Bylaws, permits, licences.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Civil Wrong

A

Wrong done by an individual against another individual. 4 Types of Civil Wrongs. Procedure: Lawsuit/Legal Action Purpose: Compensate for injury.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

4 types of civil worngs

A
  1. Tort –> non-contractual wrongs eg. neligence
  2. Breach of Contract –> common law
  3. Statutory Wrong –> ie. breaking Human Rights Code
  4. Equitable Wrong –> eg. breach of trust
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Consequences of Civil Wrongs

A

Creates a “cause of action” wronged individual can sue in court or make a claim to administrative body(tribunal). Judgement Damages and other remedies

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Fiduciary Trust (def)

A

Trust placed in people who have a high place of trust, therefore must act in the best interest of the company.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Supreme Court of Canada

A

Hears appeals from all provinces and federal cases decision is final does not have to hear appeal cases that are particular social or legal interest appeal on questions of law but not on questions of fact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is the structure of the court system (High to low)

A

Federal Court - federal laws Provincial Courts - Prov laws Supreme Court of Canada - all appeals, provincial & federal Federal court of appeal Provincial court of appeal Provincial Supreme court Federal trail court Provincial Court 1. Small claims court 2. family court 3. Youth court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Civil Court: Exchange of documents

A
  1. Demand letter to defendant incl. cause of action, formal demand for payment.
  2. If not resolved, lawsuit.

2a. Writ of summons starts legal action
2b. file with court
2c. limitation period starts when plaintiff first becomes aware of the wrong done by the defendant.
2d. Writ must be served by personal service, or can order substituted service if reasonable efforts have been made
3. Defendant must file an appearance - notice to the court that the defendant intends to defend the action
3a. defendant doesn’t file, plaintiff can file for default judgement
4. All parties pleadings filed with the court
4a. Plaintiff’s statement of claim - details of the facts
4b. Defendant’s statement of defence- why he’s not liable
5. Optional reply by Plaintiff
6. Optional Counter claim, and defence to counterclaim, third party notice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Civil Court Procedures

A
  1. Statute of limitations
  2. Determine jurisdiction
  3. The Exchange of documents
  4. pre-trial procedures
  5. Settlement
  6. Trial
  7. Enforcement of judgemnets
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Civil Court: Pre-trial procedures

A

1Discovery 1a. examination for discovery - each party gives statement 1b. Discovery of documents - demand to see all relevant documents

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Civil Court: Settlement

A

part of pre-trial after discovery where parties can settle the case before trial by using Alternatives sich as mediation, arbitration, or negotiation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Civil Court: Enforcement of Judgements

A

Defendant now called Judgment Debtor. Can find out under oath if the defendant has assets.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Civil Court: The Trial

A
  1. opening arguments
  2. Plaintif presents case, then defense. witnesses are called
  3. closing statements
  4. instruct jury if there is one
  5. judgement on law

Rules of evidence are followed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Alternatives to Court Action

A

Alternative dispute resolution (ADR)

  1. Mediation: mediator, good chance of agreement
  2. Arbitration: decision is binding
  3. Negotiation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Public Law

A

Rights and duties governing the individual’s relations with the state. IE. criminal law, constitutional law, administrative law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Public Law

A

Rights and duties governing an individual’s relations with another individual eg. contracts

32
Q

Hierarchy of Law

A

Highest –> constitution Statute law (legislation) judge made law (common & equity)

33
Q

Rule of Law

A

all people are subject to the same laws.

34
Q

Fundamental Freedoms (s.2)

A

Expression Religion Thought Belief Peaceful Assembly Association

35
Q

Fundamental Rights

A

Democratic rights Mobility rights [can’t abrogate either] legal rights equality rights language rights

36
Q

Complaint under Human Rights Legislation

A

person (ee) vs. other person (er) Is er governed under federal or provincial law? –> Federal = Canadian HRC, Provincial = BC HRC wide range of non-monetary remedies.

37
Q

Administrative Tribunals

A

To make decisions in specialized areas ie. employment standards. Have primary jurisdiction, except wrongful dismissal–> court system. Appeals “ Judicial Review” are limited by statute.

38
Q

Judicial Review

A

Appeal of an administrative tribunal decision. Only overturned if: decision was unreasonable (not incorrect) exceeded it’s jurisdiction showed bias or denied natural justice

39
Q

Natural Justice

A

a set of rules that provides due process to individuals involved in legal actions.

  • act in good faith
  • complainant must have reasonable notice of hearing
  • right to see and respond to all evidence,
  • right to hear all witnesses
  • be heard by decision maker
  • impartiality
40
Q

Federal Employment Statutes

A

Canadian Labour Code Canadian Human Rights Code Employment Equity Act Personal Informations Protection and Electronic Documents Act

41
Q

A limitation of the Charter or Rights and Freedoms is justifiable if:

A
  1. it enforces an important govt. objective 2. the limitation on individual rights or freedoms is minimal that is no greater than necessary to accomplish the objective, and 3. the law sets precise standards - is sufficiently clear about what conduct is prohibited
42
Q

Notwithstanding Clause (def)

A

S.33 allows the federal and provincial govt to enact legislation in spite of a violation to the charter.

43
Q

Precedent (def)

A

How judges decide cases. What previous courts have decided involving similar principals and circumstances.

44
Q

Binding Decision (Def)

A

decision made by a higher courts are binding on the lower courts of the same jurisdiction in circumstances in the cases are similar.

45
Q

Consideration (def)

A

When a judge is persuaded to follow a precedent from another jurisdiction or lower court though it is not bound to do so

46
Q

Distinguishable (def)

A

When a lower court decides not to follow precedent because it finds the facts or other elements in the previous case are so different that the legal principle in the previous decision should not apply.

47
Q

Undue Hardship (def)

A

Where an employer cannot accommodate

48
Q

Contract Law for Employment Law

A
  • Determine if an employer/emplpyee relationship exsists
  • What remedies apply to a breach
49
Q

Tort Law

A
  • Branch of civil law
  • Covers wrongs and damanges btw one person or company and another
  • Either deliberate or negligent
50
Q

Administrative Agencies (def)

A
  • Below tribunals
  • investigate complaints, make rulings and sometimes issue orders
  • Issues policy guidelines and perform educaitonal role
51
Q

BC Human Rights Code (1973)

A
  • takes precedent over all legislation
  • Effect of rule or action matters just as much as intention
  • No contracting out
  • Provides civil remedies
52
Q

Bona fide occupational requirement (def)

A

When an employer can demonstrate that a rule or qulificaiton that has a negative effect on a protected group that is normally discriminatory unless 3 part Meiorin test

53
Q

Meiorin Test

A
  1. adopted for a purpose rationally connected to the performance of a job
  2. adopted in an honest belief that it was neccessary to satisfy a legitimate business purpose, and
  3. Reasonably neccessary to accomplish that purpos. Employer must show that it was impossible to accommodate the individual without causing undue hardship
54
Q

Purpose of Human Rights Legislation +

A
55
Q

Human Rights: Prohibited Grounds of Discrimination

A
  • religion
  • colour
  • sex or sexual orientation
  • physical or mental disabilty
  • age
  • ancestry
  • place of origin
  • marital status
  • family status
  • political belief
  • criminal conviction if that offence is unrelated to the person’s employment
  • Race
56
Q

Remedial Legislation (def)

A
57
Q

Term “employment” includes

A
58
Q

5 Areas of social activity that everyone has the right to be free from discrimination

A
59
Q

Exemption from Prohibited grounds

A
60
Q

Prima Facie (def)

A

“On the Face of it”. If the facts are true then there is a breech of law.

61
Q

Establishing Prima Facie

A
  1. the complainant was qualified for the particular employment
  2. the complainant was not hired
  3. that either:
    1. someone no better qualified but lacking the distinguishing feature (aledged discrimination) subsequently got the position
    2. the employer continued to seek applicants with the complainant’s qualifications.
62
Q

Additional grounds for discrimnation

A
  • Equal pay where a wage difference based on a factor other than sex is permissible
  • Certain orgs grant preference to members belonging to identifiable groups
  • operates as not for profit
  • Special services program s. 41
  • employment equity programs s.42
63
Q

Human Rights Code: Job Ad Stipulations

A
  • Can’t advertise that express some discriminartoy limitation, specification or preference
  • make sure job descriptions are up to date
64
Q

Where and How to advertise a job

A
  • Consider as many candidates as possible
  • can advertise by word of mouth and ethnically based community paper BUT
    • perpetuates the status quo
    • can affect a tribunal’s view of the case
  • Use gender nutral words
  • watch wording is about the job tasks
65
Q

Job interviews

A
  1. Accomodate disabilities
  2. have a standard set of questions
  3. use interview teams
  4. beware of prohibited grounds
  5. use the Meiorin test
66
Q

Upon Conditional offer of employment

A

Once offer is made can collect prohibited info

  • drivers licence info
  • medical testing
  • Drug and alcohol testing
  • other pre-employment testing
67
Q

Pre-employment medical exams

A

All candidates must have the test, and must be review with a physician

68
Q

Pre-employment testing

A

tests that measure job related skills are acceptable and adhear to Meiorin test

69
Q

Human Rights Tribunal

A

Employees can complain about Human Rights Violations.

Employers defence can be BFOR or undue hardship

70
Q

Undue Hardship

A

Defense against discrimination in Human Rights Tribunal if it can prove that fulfilling the duty to accommodate would impose an excessive burden on a number of factors incl. finacntial and safety.

71
Q

Complaint under Constituion

A
  • Go go court if person vs. law
  • Courts have the right to declare legislation is “Unconstituional”
  • Go to tribunal if ee vs. er
72
Q

Descrimination (df)

A

Treating a person or group differntly or negatively based on prohibited ground of discrmination under the Human Rights Legislation

73
Q

Civil Law Jurisdiction

A

Can be either

  1. In the place where the defendant lives
  2. Where the action occured

Can outline in contracts before hand

74
Q

Types of remedies in civil cases

A

Remedies: injunctions

General damages: lost wages (past & future)

Special damages: out of pocket

75
Q

_Civil Court: _Discovery

A
  1. examination for discovery - one party examines the other party under oath,
  2. discovery of documents : parties allow the other side to see all documents

Purpose: chance to make agreement outside of court. To take the surprise out of court proceedings.

76
Q

Beyond a Reasonable Doubt

A

Criminal standard of proof. Burden of proof on the crown.

77
Q

Balance of Probabilties

A

The standard of proof required to prove a case in civil court. Must have a 51% chance that the plaintiff’s case is true.

78
Q

Case: Sangha

A

Found that not hiring people who are overqualified is discriminitory especially because it’s disporportionaely an immigrant (visable minority) experience.

Mid 1: BLAW (2 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions