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BLAW 301 > Chapter 1 & 2 > Flashcards

Chapter 1 & 2 Flashcards

1
Q

Who’s the lieutenant governor of the province of Alberta?

A

Alberta’s Lieutenant Governor is Honourable Salma Lakhani

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2
Q

Why Study Law?

A
  • Affects how we live
  • How society functions
  • How business operates
  • Business decisions have legal consequences
  • –Negative: e.g. dumping pollutants into environment
  • –Positive: e.g. binding contractual party to promise

•Legal consequences affect profits and losses–Some decisions impose liability, others create opportunities

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3
Q

Risk Management Process

A

Businesses must manage legal risks

•Three steps:

  1. –Identification: recognize legal risks → “Can we be held liable for this?”
  2. –Evaluation: assessment of legal risks → “what are the chances of something going wrong?”
  3. –Response: reaction to legal risks → “What are we going to do about it?”
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4
Q

Forms of Risk Management

A
  • Nearly every business decision creates some risk
  • Different risks must be treated differently
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5
Q

Risk Management Examples

A

Insurance

  • –Liability insurance or property insurance

Exclusion & Limitation Clauses

  • –Contractual terms that exclude liability for some acts/losses, or limit compensation available

Incorporation

  • –“Limited liability”: shareholders not usually liable for company debts
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6
Q

Legal Jurisdictions

A
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7
Q

Civil Law and Common Law

A
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8
Q

Categories of Law

A
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9
Q

Public Law

A
  • Constitutional law: rules governing basic operation of law and politics
  • Administrative law: rules governing creation and operation of agencies, boards, tribunals, and commissions that exercise delegated authority
  • Tax law: rules regarding collection of money for public spending
  • Regulatory law: rules governing operation of societal activities: food, pharmaceuticals, trade, environment, transportation modes, telecommunications, broadcasting
  • Criminal law
  • –Rules governing wrongs against society§e.g. punching a person
  • –A company can be convicted under the criminal code for acts of directors, officers, employees and others
  • –Crimes in the business world:
    • White collar crimes (committed by “people in suits”)
    • Corporate crimes (committed by a company itself)
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10
Q

Private Law

A

Matters of private concern, such as:

  • Tort law: involuntary rules governing wrongs against persons
  • Contract law: voluntary rules governing the creation and enforcement of agreements
  • Property law: involuntary rules governing the voluntary acquisition, use, and disposition of property
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11
Q

Sources of Law

A

•Hierarchy of sources of law

  1. Constitution
  2. Legislation
  3. Courts
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12
Q

The Constitution

A
  • Provides basic rules for society, including our legal and political systems
  • Highest source of law
  • If the Law is inconsistent with Constitution → no force or effect as per section 52 of Constitution

•Difficult to amend

  • Requires consent of both Parliament and two-thirds of all provinces with at least 50% of the population
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13
Q

Federalism

A
  • Two constitutionally recognized levels of government
  • Federal government:
  • represents entire country–Parliament, made up of Senate (appointed) and House of Commons (elected)
  • Lead by Prime Minister

•Provincial (territorial) government:

  • represents province (territory), called the Legislature (elected)
  • Lead by Premier
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14
Q

Division of Powers

A

Federal

Provincial or Territorial

criminal law

property and civil rights (e.g. contracts, torts)

any mode or system of taxation

direct taxation within the province to raise revenue for provincial purposes

employment insurance

creation of municipalities

banks

matters of a local or private nature within a province

bankruptcy and insolvency

Blank

money

Blank

negotiable instruments (e.g. cheques)

Blank

international and interprovincial trade and commerce

Blank

navigation and shipping

Blank

copyright

Blank

any matter that is not exclusively given to the provinces

Blank

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15
Q

Charter of Rights & Freedoms ⅓

A
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16
Q

Charter of Rights and Freedoms ⅔

A
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17
Q

Charter of Rights and Freedoms 3/3

A
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18
Q

Limitations on Charter Rights

A
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19
Q

Charter Remedies

A
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20
Q

Charter Dialogue

A
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21
Q

Legislation

A
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22
Q

Subordinate Legislation

A
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23
Q

Courts

A
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24
Q

Definitions of “Common Law”

A
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25
Q

Definitions of “Civil Law”

A
26
Q

Common Law and Equity

A

•Historical developments

  • –Phase I: Courts of Law
    • Only one set of courts in England
    • Rules often rigid and harsh
    • People sought other relief from the King or his representative then known as the Chancellor.

–Phase II: Law and equity

  • Courts of law supplemented by courts of equity (or Chancery)
  • Two separate but parallel courts, judges, and rules

–Phase III: Fusion

  • Law and equity combined into single court
  • Ongoing rationalization of legal and equitable rules
  • In the event of an inconsistency, the equitable rules apply or “equity prevails over law”
27
Q

Nature of Equity

A
  • Occasional differences remain between law and equity (e.g. damages at law — specific performance injunction at equity)
  • Law has formal limitation periods, typically 1-2 years
  • Equity requires speed, i.e. injunctions must be sought as soon as practicable.
28
Q

Law and Equity in Play

A
  • Lawful strike at a hospital
  • Employees are lawfully picketing
  • Employees are lawfully blocking hospital access
  • Hospital will seek an injunction to preclude the blocking of access to the hospital by the employees, notwithstanding legality of employees’ actions
  • Hospital must seek the injunction promptly and damages are not a viable alternate remedy
29
Q

Common Equitable Remedies

A
30
Q

Trusts

A
  • Considered the greatest creation of common law
  • Express trust: settlor transfers property to the trustee to hold for the beneficiary
  • Common law creates the split title:
    • –Trustee holds legal title to property–
    • Beneficiary enjoys equitable title to property
31
Q

Who can sue?

A
  • Adult people, even non-Canadians
  • Some organizations (corporations) but not others (e.g. usually not unincorporated associations)
  • Special rules apply when suing governments
32
Q

Class Actions

A
  • Most Canadian provinces allow class actions
  • Allows a single person or small group to sue on behalf of a larger group of claimants
  • Benefits
    • Allows small individuals to take on large organizations
    • Cost effective way to sue for small but wide-spread claims
    • Threat of class action may curtail big business behavior
33
Q

Class Action Criteria

A

To do a class action lawsuit, you need…

  • Common issues among all class members
  • Representative plaintiff who demonstrates workable plan for fairly representing all class members’ interests
  • Notification to all potential members of class
  • Preferable procedure to traditional litigation
  • Certification by court to allow class action to proceed
34
Q

Legal Representation Options

A
  • Self-representation
  • Lawyer
  • Paralegal
35
Q

Self-Representation

A
  • You have the right to represent yourself in court
  • Usually advisable only in simple matters
    • Remember the saying: a self-represented person has “a fool for a lawyer and a fool for a client.”
36
Q

Representation by Lawyers

A
  • Must complete training and be “called to the bar” after passing examinations
  • Governed by provincial bodies (Law Societies)
    • Imposes codes of conduct
    • Investigates and punishes misconduct
    • Victim assurance funds to compensate for misconduct
  • Must carry professional liability insurance
  • Communications are confidential and privileged
37
Q

Representation by Paralegals

A
  • A non-lawyer providing legal advice and services within the areas allowed by law or regulation
  • Are regulated in some provinces (e.g. Ontario)
  • Regulated Paralegals:
    • Require some training and examinations
    • Have Codes of Conduct
    • Can be punished for wrongdoing
    • Must carry liability insurance
    • Are limited to certain types of work
38
Q

Parelegals vs. Lawyers

A
39
Q

Pleadings

A
  • Documents used to identify issues and clarify dispute
    • Drafted by a Party
    • Issued by Court
    • Served on opposing party

Types of Pleadings

Statement of Claim – Filed by Plaintiff

  • Used by plaintiff to start lawsuit
    • Some provinces use “writ” before a statement of claim
  • Outlines the dispute and states facts and desired remedies

Statement of Defence – Filed by Defendant

  • Defendant should file within time-limit
  • Sets out defendant’s version of facts and denies liability

Counterclaim – Filed by Defendant

  • Claim the defendant makes against the plaintiff
  • Defendant may combine defence and counterclaim in a “Statement of Defence and Counterclaim”

Statement of Defence & Counterclaim – Filed by Defendant

  • Prepared by plaintiff to defend against counterclaim

Third Party Claim – Neither Plaintiff nor Defendant, but a 3P

Reply – Filed by Plaintiff

  • Filed by plaintiff to dispute anything in the Statement of Defence

Demand for Particulars – Any Party

  • Either party may require opposing side to provide additional information or clarify pleadings

Petition

  • Certain actions started by petition (i.e. bankruptcy)

Initiating Party: Petitioner, Responding Party: Respondent

39
Q

Pleadings

A
  • Documents used to identify issues and clarify dispute
    • Drafted by a Party
    • Issued by Court
    • Served on opposing party

Types of Pleadings

Statement of Claim – Filed by Plaintiff

  • Used by plaintiff to start lawsuit
    • Some provinces use “writ” before a statement of claim
  • Outlines the dispute and states facts and desired remedies

Statement of Defence – Filed by Defendant

  • Defendant should file within time-limit
  • Sets out defendant’s version of facts and denies liability

Counterclaim – Filed by Defendant

  • Claim the defendant makes against the plaintiff
  • Defendant may combine defence and counterclaim in a “Statement of Defence and Counterclaim”

Statement of Defence & Counterclaim – Filed by Defendant

  • Prepared by plaintiff to defend against counterclaim

Third Party Claim – Neither Plaintiff nor Defendant, but a 3P

Reply – Filed by Plaintiff

  • Filed by plaintiff to dispute anything in the Statement of Defence

Demand for Particulars – Any Party

  • Either party may require opposing side to provide additional information or clarify pleadings

Petition

  • Certain actions started by petition (i.e. bankruptcy)

Initiating Party: Petitioner, Responding Party: Respondent

40
Q

Pre-Trial Activity

A
  • Documentary discovery
  • Examinations for discovery
    • Information gathered under oath outside court
  • Pre-trial conference
    • meeting between lawyers and judge to encourage settlement
  • Mandatory mediation (in Ontario and Alberta)
  • Settlement: resolving dispute before trial
41
Q

Limitation Periods – Legal Remedies

A
  • Period within which action must be started
  • General limitation period:
    • 2 years from date plaintiff discovered (or ought to have discovered) the cause of action
  • Several exceptions to general rule depending on claim:
    • e.g. 20 years to recover land
    • e.g. 7 days to sue city for damages from poor road repair
  • Late claim generally unenforceable
42
Q

Limitation Periods: Equitable Remedies

A
  • Equitable remedies generally have time lines of days
  • Special rules when applicable
  • Typical equitable remedies
    • Injunction (mandatory or prohibitory)
    • Specific Performance
    • Accounting for Profits
    • Rescission
43
Q

Trial

A
  • Decision makers: judge and jury, or judge alone
    • Jury is very rare in civil litigation, more common in criminal
    • If jury, judge determines law, jury determines facts and applies law
  • Evidence: information provided by witnesses
    • Ordinary witnesses
    • Expert witnesses
    • Judge determines admissibility of evidence
  • Burden of Proof
    • Criminal: beyond a reasonable doubt
    • Civil: balance of probabilities (more likely than not)
  • Criminal litigation outcomes: guilty or not guilty
    • Fine or imprisonment for conviction
  • Civil litigation outcomes
    • Case is proven, legal or equitable remedy granted
    • Case is not proven, dismissal
44
Q

Enforcement in Litigation

A
  • Winning a judgment does not guarantee judgment debtor will pay
  • Winning party must “enforce” their judgment
  • Enforcement techniques include:
    • Garnishee income
    • Seize and sell judgment debtor’s assets
    • Court officials and others such as sheriff can help
  • Only applies within the province of the court that issued the judgement
45
Q

Appeals

A
  • A party may appeal a decision to a higher court
    • Appellant: party disputing lower court decision, appealing
    • Respondent: party supporting lower court decision
  • No new witnesses or evidence – appeal operates from the court record at trial
  • Focus on law rather than fact
    • Overrule any errors of law, but only palpable and overriding errors of fact
  • Normally a panel of three or more judges
    • Majority decision prevails
    • Disagreement expressed through judge’s dissent
  • Effect of appeal judgements
    • Affirm decision below
    • Reverse decision below
    • Vary decision below
    • Send back to lower court for retrial
46
Q

Costs

A
  • Expenses incurred during litigation (fees and disbursements)
  • Operates by way of a court approved tariff and not the actual lawyer invoices
  • If client believes excessive, can have costs “taxed”
  • General rule: loser pays winner’s costs (exceptions)
    • Usually party-and-party costs (partial)
    • Exceptionally solicitor-and client costs (substantial)
      • May be awarded if frivolous or vexations action
      • May be awarded if reasonable offer to settle rejected
47
Q

Contingency Fees

A
  • Client pays lawyer only if lawsuit is successful
  • Lawyer paid from judgement proceeds
  • Not allowed for certain types of lawsuits
  • Often covers legal fees but not disbursements
  • Not unusual for fee to be 25 – 40% of winnings
  • Effect of contingency fees
    • Benefit: poor parties able to afford litigation
    • Detriment: legal fees often higher than normal
48
Q

Canada’s Court System

A
49
Q

Supreme Court of Canada

A
  • Highest court in Canada
  • Nine justices: Chief Justice and eight puisne justices
    • Appointed by Government of Canada
  • No right to proceed to Supreme Court of Canada
    • Court may normally choose which appeals it will hear
    • You must apply for leave to appeal
    • Court grants leave to appeal only to those cases of national importance
50
Q

Appeal and Superior Trial Courts

A
  • Courts of Appeal (provincial appellant courts)
    • Highest court in province or territory
    • Judges appointed by Government of Canada
    • Sit primarily as 3 rarely as 5 or 7.
  • Superior Courts (provincial superior courts)
    • Hears civil law trials, and serious criminal matters
    • Judges appointed by Government of Canada
    • Occasionally hears appeals from lower courts
    • Trial court so only 1 judge presides
51
Q

Court Names

A
52
Q

Federal Courts

A
  • Three specialized courts:
    • Tax Court: disputes regarding payment of taxes
    • Federal Court, Trial Division
      • Trials concerning federal division of powers areas
    • Federal Court, Appeal Division
      • Appeals arising from Trial Division and Tax Court
    • Court Martial Trial and Appeal Courts
      • Military Justice under military code of conduct
  • Judges are appointed by Government of Canada
53
Q

Provincial Courts

A
  • Judges are appointed by provincial government
    • Family Court (e.g. support payments)
    • Youth Court (e.g. young offenders, neglected children)
    • Criminal Court: less serious crimes
    • Small Claims Courts
      • Usually division of Provincial Courts (except Ontario)
54
Q

Small Claims Court Advantages

A
  • Ideally suited for small business disputes
  • Advantages compared to Superior Courts
    • Relatively quicker
    • Less expensive
    • Less formal
55
Q

Small Claims Court Disadvantages

A
  • Geographical limits
    • Normally must sue where event occurred or
      defendant lives
  • Types of claims: money or goods
    • No federal issues
  • Types of remedies: cannot award equitable relief
  • Monetary limits:
    • $6 000 – $1 35 000 depending on jurisdiction
56
Q

Court Hierarchy and Precedent

A
  • Hierarchy determines appeal route
  • All hierarchies end with Supreme Court of Canada
  • Also determines what decisions are binding on courts
    • Doctrine of Precedent
      • Judge must follow similar decisions from courts higher in same hierarchy
      • Other court decisions may be persuasive but not binding
  • Rule of Law: solve disputes based on law, not opinion
57
Q
A
58
Q

Administrative Tribunals

A
  • Body that resolves issue and disputes
  • Somewhere between the government and a court
    • e.g., Human Rights Tribunals, Labour Relations Board, Competition Tribunal
  • Exercise a “quasi-judicial” function
  • Some are informal, some operate like courts
  • Decision makers generally experts in field,
    seldom judges
59
Q

Judicial Review

A
  • Administrative tribunal decisions are highly respected and not easily overturned
  • Can sometimes seek judicial review by a court on substantive or procedural questions
    • Standards of judicial review for substantive decisions:
      • Reasonableness standard: court defers to tribunal’s expertise, only overturns unreasonable decisions
      • Correctness standard: court may overturn any error
60
Q
A

BLAW 301 (3 decks)

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