Chapter 1 Flashcards
Legal risk management plan?
A plan that allows businesses to take action and prevent and or reduce loss. This is by by 1. Identify the legal risks 2. Evaluate the legal risks 3. Manage the legal risk by devising and implementing a legal risk strategy. 4.review and revise the strategy
What are the 4 main ways to manage legal risk?
- Risk avoidance 2. Risk transfer (such as contracting work to others, which transfer liability and risk) 3. Risk reduction 4. Risk retention ( take the risk if it is better to instead of transferring it or avoiding it)
What distinguishes law from other rules?
Enforcement via the authority of the state; courts and government agencies have the power go enforce the law
What two legal systems are incorporated in the Canadian constitution?
English common law, and European Civil law. With influence from indigenous law systems as well.
What is the rule of law?
The legal principle that everyone and everything has equal rights and are not above the law itself
What is jurisdiction?
The authority to enforce or make the law in one’s respective area of governce
What is the constitution?
The Supreme law that establishes the basis in which all other laws are created. It also establishes the extent and limits of government authority, as well as the framework in which all laws must conform too.
What is the civil law system? (Aka private law)
The system of law where all rules are made in statue, and courts lack authority to act without a statute; judges act independently and can interpret statutes without the worry of precedent.
What is common law?
The system of law that recognizes court decisions with the same force of law as Statutes. Basically, Statutes are what the courts interpret them to mean, and the courts have the authority to make law where no Statutes exist, this creating precedent.
What is Stare Decisis? (Aka the doctrine of precedent)
The principle that requires judges to follow decisions of higher courts in similar cases
Where is law found ?
Within the constitution, statues, regulations, by-laws, and in common law.
What are the two main documents within the constitution?
The constitution act 1867, and the constitution act 1982. The 1982 act contains the charter of rights and freedoms
Within in thr constitution, what documents are found ?
Statutes, judicial decisions that interpret these doucments, and unwritten rules called constitutional conventions
What is the federal system of government ?
The system whereby law making powers are divided between the federal and provincal governments according to subject matter
What three branches of government does the constitution establish?
The legislative, executive, and judicial branches. Of which, these branches work at both federal and provincal levels
What is the legislative branch of government?
They introduce, vote on, and pass legislation (statutes) and are made up of Parliament (federally elected by the country) or legislative assemblies (provincally elected by the province) Statues are their source of law
What is the executive branch?
They administer the day to day business of government. Federally, this branch is made up of the PM, cabinet, and each departments civil servants. Provincally, it is made up of the premier, cabinet, and department civil servants. Source of law is regulations
What is the judicial branch ?
They are made up of federally and provincally appointed judges. Source of law is case law
What areas does the federal government control via powers laid out in the 1867 constitution act?
Citizenship, criminal law, national defense, banking, printing of money, postal services, taxes, intellectual property, shipping, and interprovincial trade.
What powers are afforded to the provinces via the Constitution Act 1867?
Education, Hospital admin, administration of justice, social services, property rights, natural resources, and direct taxation. The province also controls incorporation, real estate, sale of goods, business licenses, and employment
What is concurrent jurisdiction?
When both the federal and provincal government share power over a area. For example, agriculture and the environment.
What is the doctrine of paramountcy?
The rule that establishes that where a conflict between federal and Provincal laws occurs, the federal govnerment law will prevail
Which branch of government interacts with business the most?
The executive branch
What are regulations?
Rules created by the executive branch of government that have the force of law
What does the executive branch of government actually do?
At both levels of government, the executive branch are responsible for implementing and enforcing laws made by the legislative branch
What does the judicial branch do?
Courts at both levels of government are responsible for interpreting and applying the law passed by the legislative branch. They are also responsible for determining that laws are valid within the authority of the constitution
What does judiciary mean?
A collective term for judges
What is Ultra Vires?
This rule is when a law is found unconstitutional by the judiciary, and thus has no effect or force in law. The judges will then strike it down.
What is parliamentary supremacy ?
The constitutional convention that holds that the legislative branch of government is supreme over the other branches, thus allowing for new legislation to override judge made law (common law)
What is substantive law?
Any and all laws that set out the rights and obligations of individuals. For example, speed limits are obligatory to be followed by drivers.
What is procedural Law?
Procedural law is the set of rules that govern how substantive law should be enforced. For example, if someone breaks the speed limit, there is a process that must be followed before they can be convicted of speeding; a ticket must be given, the person must be able to challenge it etc.
What is public law?
All areas of law that concern itself between the people as a whole and the government; tax law, criminal law, administrative law etc.
What is private law?
The law that concerns itself with relationships between persons, including corporations, where there is no government involvement.
What is a tort?
A civil wrong, other then breach of contract, for which damages may be sought to compensate for any harm or injury sustained.
What is civil law?
Civil law and private law can be used interchangeably. It’s concerned with private relations of individual. However, Civil law and the Civil law system quebec uses a not the same.
What is criminal law?
Rules established by the federal government that govern the standard of acceptable behavior in society. Breaching these results in fines or imprisonment
What is a regulatory offense?
Regulatory offenses are seen as “quasi criminal”, as while provinces can not make criminal law themselves, these offenses still result in fines or imprisonment; fishing without a license for example. Note, these offenses do not result in a criminal record
What is a plaintiff?
The plaintiff is used to refer to someone whom seeks to sue another; this term is only used in lawsuits. The person being sued is called the defendant.
What is balance of probabilities ?
The standard of proof in civil law indicating thst one version of events if more likely than another (as opposed to criminal law, which it is called beyond a reasonable doubt)
What is administrative law?
The body of law that is concerned with the regulation of business and government activities; including rules applied to government agencies. For example, provincial alcohol commissions grant licenses to bars and restaurants.
What is a administrative agency?
Government bodies that are established via legislation to regulate or oversee a specific area that requires special knowledge
What is a administrative tribunal?
Any government body, even if it has a different name, that has decision making functions. Note, these bodies only have power regarding administrative matters, and must be authorized to use its power by legislation or regulations
What is “ rules of natural justice “? Aka procedural fairness
The principle encompassing the right to be heard, the right to hear the case against you, the right to reply to said case, and the right to an unbiased decision maker
What is a judicial review ?
The process in which a court reviews the decision of an administrative tribunal
