Chapter 1, 2, 3 Flashcards
Define Tort Law, Contract law, and Land Law and give examples
Tort Law: area concerned with injury to others
- Ex. Negligent production of goods causing injury to consumer, careless professional service causing physical or economic loss, unsafe operating premises, injury to others in a variety of ways directly or through actions of employees)
Contract law (most business activity): Area that facilitates the purchase and sale of goods, the employment of staff, the assignment or reduction of risk (through insurance contracts), and some forms of organization of the business itself
Land Law: Covers the purchase or leasing of premises or financing of the purchase of land and buildings, sets out the rules for these business activities
define Law
Law: is society’s rules and processes that try to create fair and predictable outcomes in our relationships
- Body of principles recognized and applied by the state in the administration of justice.
Rights versus Privileges
When we say we have the “right” to do something, we are saying that we may do the particular act with impunity (exemption from punishment), or with the force of the state behind us
- Law sets our rights
Privileges are actions that may be taken by an individual under specific circumstances and that may be withdrawn or limited by the state
- Rights enjoyed by individuals often become privileges as a result of social pressure or public policy
- ex. This includes things like property, education, and healthcare.
what are the two roles of Law?
Social Control
Settlement, Rules, and Protection
Explain Social control
Social Control
* Laws enforced by legislators that are not in the response to the demands of majority of citizens
- Tends to restrict individual rights and freedoms and transfers those rights to the governing body
Reason: for public good and don’t want interference/competition from private sector
Explain Settlement, Rules, and Protection
Law is subdivided into three functions:
Settling disputes
Establishing rules of conduct
- minimize conflict between persons engaged in similar activities or living close to one another
- Ex. “rules of the road” under the various Highway Traffic Acts - where/how and vehicle is driven
Providing protection for individuals
Protect people from intentional/careless assaults by others, expands to protection of house/possessions
What is Common Law?
Common Law “case law”: the law as found in the recorded judgments of the courts.
- Judicial reasoning and the principles applied by the judges were readily available by way of these reports, and the Common Law could be determined from them through the doctrine of stare decisis
Define Stare Decisis
Stare decisis: the principle requiring a judge to apply the judgment of a previous case when a later case presents similar facts.
* (“to let a decision stand,” or “to stand by a previous decision”)
* The doctrine means that a judge must apply the previous decision of a case similar to the one before the court if the facts of the two cases are the same, providing such a decision was (1) from the judge’s own court, (2) from a court of equal rank, or (3) from a higher (or superior) court * Only the Supreme Court of Canada has the unrestricted ability to overrule its previous decisions, and even then it does so only with caution.
Define Canon Law and Statute Law
Canon Law “church law”: the law developed by the church courts to deal with matters that fell within their jurisdiction.
* orginally the church had jurisdiction over family, religion, and marriage matters
* eventually became part of Common Law
Statute law: a law passed by a properly constituted legislative body.
- root in the Latin word statutum, meaning “it is decided”
Define Equity
In terms of the King
Equity: rules originally based on decisions of the king rather than on the law, and intended to be fair.
- The rules of equity are not a part of the Common Law but, rather, a body of legal principles that takes precedence over the Common Law when the Common Law and rules of equity conflict
- litigants (the accused) often could not obtain a satisfactory remedy from the courts.
○ To obtain the kind of relief desired, they would frequently petition the king.
The king heard these cases and in each case made what was called an equitable decision: one not necessarily based upon the law, but one that the king considered to be fair
Define Law Merchant
Law Merchant: the customs or rules established by merchants to resolve disputes that arose between them, and that were later applied by Common Law judges in cases that came before their courts.
Summarize the creation of Statute Law
A statute law starts as a bill, a proposed law presented to a legislative body like the House of Commons. The bill goes through stages including introduction, reading, and debate. If it passes these stages, it’s examined by a committee, possibly amended, then presented to the legislature for further debate and a final reading. After approval by both houses, it needs royal assent to become law, granted by the Governor General federally or the Lieutenant-Governor provincially. However, the government may delay its implementation until it’s proclaimed, making it effective.
Bill: a proposed law presented to a legislative body.
Motion: the decision to read a bill a first time.
Royal assent: approval of the sovereign, needed in order for a bill to become law.
Proclaimed: when a law becomes effective.
Revised statutes: updated or amended statutes.
What is Quebec’s Civil Code
Civil Code: a body of written law that sets out the private rights of the citizens of a state.
The Civil Code of Quebec is not merely a set of modern rules; the drafters of this code intended it to provide a comprehensive legal framework for various aspects of life, including birth, family, business dealings, death, inheritance, and the management of important obligations and assets throughout a person’s life journey.
Define Consitution, when was the Canadian Consitution, and what are the two major parts of it?
Also explain the British North American Act
Constitution: the basis upon which a state is organized and the powers of its government defined.
Canadian - Constitution Act, 1982,
The constitution of Canada is divided into two major parts:
1. the Canadian Charter of Rights and Freedoms;
2. An amending formula, some additional changes in the powers of government, and what was previously the contents of the British North America Act, 1867, as amended
British North America Act, 1867: was a law passed by the British Parliament. It created the Dominion of Canada by uniting several British North American colonies into a single self-governing entity.
Name some Charter of Rights and Freedoms
Fundamental Freedoms
Everyone has the following fundamental freedoms:
1. freedom of conscience and religion;
2. freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication;
3. freedom of peaceful assembly;
4. freedom of association.
Mobility and Personal Liberty
In the Charter is found in s. 6, which provides that Canadian citizens are free to remain in, enter, or leave Canada, and to move freely within the country
Right to Due Process
About having the right to be informed, on arrest or detention, of the reasons for the arrest, and the right to retain and instruct a lawyer promptly after the arrest or detention has been made.
Equality Rights
Every individual is equal before the law
Aboriginal Rights
Section 25 promises that no guaranteed rights found in the Charter may be used to diminish or alter any aboriginal, treaty, or other rights or freedoms of Indigenous peoples of Canada, including any rights pertaining to land claims agreements now or in the future
Enforcement of Rights
To provide for enforcement, the Charter states that persons who believe their rights or freedoms under the Charter have been infringed upon may apply to a court of law for a remedy that would be appropriate in the circumstances.
Protection of Other Special and General Rights and Freedoms
Statute law and the Common Law may be classified in two broad, general categories:
* Substantive law
* Procedural law
Explain them
Substantive law: all laws that set out the rights and duties of individuals.
Procedural law: the law or procedures that a plaintiff must follow to enforce a substantive law right.
Substantive right: an individual right enforceable at law.
Substantive law may be further subdivided into two other types:
* Public law
* Private law
Explain them
Public law: the law relating to the relationship between the individual and the government.
* Ex. The Criminal Code and the Income Tax Act are two examples of this kind of law at the federal level, and the various Highway Traffic Acts are examples of similar public laws at the provincial level
Private law: the law relating to the relationship between individuals.
* Much of the Common Law is private law, the Common Law of contracts is private law
- Ex. Partnerships Act and the Sale of Goods Act
Define Jurisdiction
Jurisdiction: the right or authority of a court to hear and decide a dispute.
Can take various forms:
1. the court’s jurisdiction can be related to monetary matters, meaning it can hear cases involving a specific amount of money as authorized by law.
2. jurisdiction may be geographic, allowing the court to handle cases related to individuals, property, or land within a particular province or region.
3. a court’s jurisdiction can extend to the parties involved in a dispute, provided the court has the power to compel their presence and enforce its decisions on them.
Define Trial court and Courts of appeal
Trial court: the court in which a legal action is first brought before a judge for a decision.
- where a dispute or case is heard for the first time by a judge, and where all the facts are presented so that the judge can render a decision.
Courts of appeal: a court reviewing the decision of a trial court.
- Courts of appeal are superior or “higher courts in that their decisions may overrule or vary the decisions of the “lower” or trial courts
- They review the decisions of trial courts if one of the parties to the action in the lower court believes that the trial judge made an erroneous decision (ex. judge hearing the case at trial made an error in the application of the law to the facts of the case)
Define Magistrate’s or “Provincial Court” and Provincial Supreme Court
Magistrate’s or “Provincial Court”: is a court of original jurisdiction that is presided over by a provincially appointed magistrate or judge
- generally deals with all criminal matters relating to accused individuals or corporations, some provincial courts deal with violation of provincial statutes and municipal by-laws where some sort of penalty is imposed.
Provincial Supreme Court
Each province has a Supreme Court or Superior Court empowered to hear the most serious criminal cases
What are Civil Courts? Small Claims Court? Surrogate or Probate Court?
Civil Courts: deals with disputes that arise between corporations or individuals, or between corporations or individuals and the government
Small Claims Court: have jurisdiction to hear cases where the amount of money involved is relatively small
* Ontario, Nova Scotia, and Newfoundland and Labrador use the $25,000 limit, with British Columbia at $35,000, and Alberta at $50,000.
* usually small debt or contract disputes, and damage cases, such as claims arising (in some provinces) out of minor automobile accidents
Surrogate or Probate Court: Is established to hear and deal with wills and the administration of the estates of deceased persons
What is the Supreme Court of Canada?
Supreme Court of Canada
* is the final and highest Appeal Court in Canada
- The Court also hears appeals from the Federal Court, and it is the body that finally determines the constitutionality of statutes passed by both the federal and provincial governments
What is the Crimial Court Procedure
Guilty:
* The Provincial Court or Magistrate’s Court procedure: During a hearing, the accused is informed of the charges brought by the Crown and asked for their plea. If the accused admits guilty, a guilty plea is recorded. Subsequently, the court listens to the Crown’s evidence to verify the offense and its circumstances. Upon confirmation, a conviction is recorded, and a penalty is imposed on the accused
Not Guilty:
* When the accused pleads not guilty, the Crown must present evidence to prove that the accused committed the criminal act (actus reus) and had the intent to commit the crime (mens rea). This typically involves calling witnesses who can identify the accused as the perpetrator and provide evidence to support these claims. The defense counsel then has the chance to cross-examine these witnesses. The defense can request a case dismissal if the Crown’s evidence is insufficient. If denied, they can present their own evidence, often through witnesses, who may be cross-examined by the Crown.
After evidence and arguments, the judge decides guilty or not guilty, with reasons. Recorded as judgment
What is the Civil Court Procedure?
In civil cases, before going to trial, parties exchange documents called pleadings. These written statements outline the issues and facts in dispute.
The plaintiff initiates by issuing a writ of summons against the defendant, who then files an appearance. The plaintiff provides details of the claim in a statement of claim, while the defendant responds with a statement of defense or a counterclaim if applicable. Further responses may occur with a reply from the plaintiff. Once pleadings are closed, either party can schedule a trial. Some cases require mediation before trial, where a mediator facilitates negotiation. If no settlement is reached, the case proceeds to discovery and trial.
In the discovery phase, parties can conduct examinations under oath to clarify points in the statements of claim or defense. This involves the exchange of affidavits (truthful) of documents.
During a civil trial, the plaintiff’s counsel presents an opening statement, followed by witness testimony and evidence. The defense may request dismissal if liability isn’t proven. Expert witnesses may provide opinions based on their expertise. After all evidence is presented, both sides argue points of law, and the judge delivers a verdict.
If either party believes the trial judge made errors, they can appeal to the Appeal Court. The Appeal Court reviews the case and may dismiss the appeal if no errors are found. If errors are found, they may reverse the decision, vary it, or order a new trial.
