Chapter 1 Flashcards
Steps to risk identification?
1) identification = recognize legal risks (can we be held liable?)
2) evaluation = assessment of legal risks (what are chances of something gooing wrong?)
3) response = reaction to legal risks (what are we going to do about it?)
What are the forms of risk management?
1) risk avoidance = eliminate the risk (ex: withdraw dangerous product from the market)
2) risk reduction = minimize risk in that same situation (ex: modify product ot reudce danger)
3) risk shifting = give it to someone else (ex: buy liability insurance for losses)
4) risk acceptance = live with it, we are willing to handle anythig that happens
What are 4 ways you could manage risk in the mcdonalds coffee situation?
avoid = stop selling coffee
reduce = add disclaimer on cups, redesign lids to be more secutre
shift = make customer sign waiver, get insurance
accept = do nothing!
What are the two main types of legal sysyem? where did they originate?
civil law jurisdictions (originated in ancient rome)
common law jurisdictions (originated in england)
What are the categories of law? What general things fall under each?
1) public - underneath: admin, criminal, tax, constitutional
2) private - underneath: contract, tort, property
What makes up public law?
a) constitutional = basic operation of law and polititics - fundamental laws that create canada
b) admin = goern creation and operation of agencies, boards, tribunals, commissions
c) tax law = collection of money for public spending
d) criminal = governing wrongs against society (so can be punished for immoral behaviour bc keeping peace for society), also crimes in biz world and crimes of entire companies
e) regulatory = rules abt operation of societal activites (food, pharma, trade, env., transpostation)
What makes up privatelaw?
contract law = voluntary rules governing creation and enforcement of agreements - you chose to agree to the rules in contract
tort law = involuntary tules governin wrongs against people (obligations we owe society as participants)
property = ruels abt acquisition, use, disposition of property
What are the sources and hierarchy of law?
Constitution + charter guides all
1) Legislation
– Criminal code
— regulations
2) courts
– supreme court
— court of appeal
—- court of kings bench (trial court)
—– provincial court
**rulings at each bind down
What is the constitution? when? # docs? important parts?
what = provides basis of Canada, rules for our society, legal and politial systems, limitations on gov power
when = 1867
26 docs approx
important:
- constitution act = sets up the country of Canada
- section 92 = desribes power of provinces
- section 91 = power that federal gov has
What govs are rexognized by constitution? What are parts of each?
1) federal
– lead by prime minister, rest of parliament (which helps run it) is made up of senate (appointed by PM) and House of Commons (elected)
2) provincial
– led by premier of each province/territory, which leads legislature (who are elected)
What does provincial gov handle?
- property + civil rights (contracts, torts)
- taxation within province for provincial purposes
- creation of municipalities
- matters of local/private nature within prov
What is the canadian charter of rights and freedoms? When?
= when Canada finally given own power + didnt need approval from UK for changes to constitution/pass legislation **it only applies ot the gov though! need look at human rights act for private law aplications
when: 1982
What is section 1 of charter?
guarantees rights and freedoms, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
= rights + freedoms are not absolute, can be limited to protect other rights/important national values
ex: freedom of expression may be limited by laws against hate propaganda or child pornography
What is section 2 of charter?q
fundamental freedoms!
= religion, expression, peaceful assembly, association
what is sections 7-14 of charter?
- right to life, liberty and security of the person
- right to be secure against unreasonable search or seizure
- right not to be arbitrarily detained or imprisoned
- right on arrest or detention to be informed promptly why, to have counsel without delay and to be informed of that right, to have the validity of the detention determined
- if charged with an offence has the right: to be informed, to be tried in reasonable time, presumed innocent until guilty, cant testify against self
- right not to be subjected to any cruel and unusual treatment or punishment
- if testify in trial to something, that info cant be used against you to incriminate you in other proceedings
- right to the assistance of an interpreter for language or hearing difficulties
What is the Oakes Test?
based on case where Oakes was caught for possession of drugs but rule previously was to also convict of trafficking, lawyer argued that this violated presumption of innocence law
Supreme court checked section 1 and said nah they are not rationally connected or proportional
test:
- is the law rationally connected to its purpose
- does the law minimally immpair the right infringed?
- is the infringement proportional to its purpose
What is section 33 of charter? limitations?
“notwithstanding clause” = can pass law that infringes on sections 2 and 7-15
it is intednded to be political and not used often - last resort kinda thing
limitations:
- has to be renewed after 5 years (so not indefinite infringement)
- it has to be tied to specific piece of legislation
What is charter dialogue?
gov makes laws through legislation, courts identify charter violations in those laws, gov can respond by amending or enacting laws to conform to charter
what is legislation? who creates it? categories?
legislation = laws!
created by parliament (federal) or legislature (provincial)
categories:
- statutes
- subordinate legislation
What is legislative process for statutes?
- bill is introduced into the House of Commons by an MP
- if the majority of MPs support it,
the bill passes the ‘first reading’, usually without much discussion - later, the bill re-appears for ‘second reading’, when it is the subject of debate amongst the MPs. if majority support, it is sent to a legislative committee for detailed study
- the bill re-appears for a ‘third reading’, when the MPs take a final vote. If bill passes
that stage - it is sent to the Senate + the three-stage process is repeated
- if all goes well (passed by senate/parliament) one last formality: bill must receive royal assent, which is approval given on King’s behalf by the governor general
What is subordinate legislation?
= regulations that are created with the authority of Parliament/legislature
— regulations address details of the act
ex: aviation act regulations address details of airplane maintenance
What are the functions of courts? what are steps of courts?
- Interpret and apply constitution
- Interpret and apply legislation
- Create and apply “common law” (judge-made law)
steps:
1) trial! could be at provincial court for small claims under $50k OR at AB court of kings bench
2) can appeal at AB court of appeal
3) final appeal goes to supreme court of Canada!
What is common law? can it be overridden?
3 definitions:
a) to refer to where law came from: judge-made law (judges make siimilar decisions and kinda establish a normal way to deal with ccertain things)
b) to refer to entire legal system: the common laws that govern canada that came from UK
c) to refer to specific court: used to have 2 types of courts (court of law and court of equity) and common law was from first one so can use common law to refer to those developed by judges in only those courts
overridden? YES by legislation
What is civil law?
2 definitions:
a) in reference to general legal system, civil law means the system from france used in quebec (vs common law the system from england used across Can)
b) within a legal system, civil law = private! (vs criminal law = public)
