Chapter 1, 2 Flashcards
(37 cards)
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
* A privilege is something you are allowed to do, but it’s conditional.
* The government (or another authority) can grant, limit, or take it away based on certain rules or situations.
Example: Driving a car – you must pass a test and follow traffic laws. If you break the rules, the government can suspend or revoke your license.
- 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”
Summarize the creation of Statute Law
- Bill Introduction
○ A bill (proposed law) is introduced in the House of Commons or a provincial legislature. - First Reading and Motion
○ A motion (decision) is made to read the bill for the first time and print it for circulation.
○ No debate happens at this stage. - Second Reading and Debate
○ The bill is read a second time and debated.
○ If passed, it moves forward. - Committee Stage
○ A committee studies the bill in detail, may suggest amendments (changes). - Report Stage
○ The committee reports the revised bill back to the legislature for review. - Third Reading and Final Debate
○ The bill is debated again and voted on in its final form. - Senate (Federal Only)
○ Federally, after passing the House of Commons, the bill goes through a similar process in the Senate. - Royal Assent
○ Once both houses approve the bill, it must receive royal assent (official approval by the Governor General or Lieutenant-Governor).
○ After this, it becomes law. - Proclamation
○ Sometimes, the law (or parts of it) only becomes active after it is proclaimed — meaning the government announces when it takes effect. - Revised Statutes
○ Over time, revised statutes are created to update and organize older laws that have been amended.
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.
The constitution of Canada is divided into two major parts:
- British North America Act: 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.
- The Constitution Act subdivided into two parts:
- the Canadian Charter of Rights and Freedoms;
- 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
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
* What it is:
Rules that tell you what your rights and duties are.
* Example:
○ You have the right to own property.
○ You have the duty not to steal from others.
Procedural Law
* What it is:
The steps you must follow if you want to enforce your rights or solve a legal problem.
* Example:
○ How to file a lawsuit if someone steals your property.
○ What papers you must fill out and what deadlines you must meet.
Substantive Right
* What it is:
A real right you have that the law will protect and enforce.
* Example:
○ Your right to free speech.
○ Your right to get paid for work you did.
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
whats the difference to Trail Court?
A Magistrate’s Court or Provincial Court: is run by a judge or magistrate who is appointed by the province. Its a lower-level court that typically handles:
- Minor criminal offences (e.g. theft under a certain amount)
- Violations of provincial statutes (e.g. traffic or municipal by-laws)
- Preliminary hearings for more serious crimes
- Occasionally, less serious civil matters depending on jurisdiction
Provincial Supreme Court
Each province has a Supreme Court or Superior Court empowered to hear the most serious criminal cases
Trail court: refers more broadly to any court of original jurisdiction where a case is heard for the first time.
Includes: Provicial Courts, Surpreme courts of the province, small claims, etc.
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?
- The plaintiff (person starting the case) sends a writ of summons to the defendant (the person being sued), saying they’re taking legal action.
- The defendant responds by filing an appearance to say they’ll take part in the case.
- The plaintiff then sends a statement of claim with more details.
- The defendant replies with a statement of defense, and maybe a counterclaim (if they also want to sue the plaintiff).
- The plaintiff might respond again. This back-and-forth is called the pleading stage.
- Once this stage is done, either side can ask for a trial date. Sometimes, they must try mediation first, where a neutral person helps them try to settle the case.
If no agreement is reached, the case moves to discovery. In this phase, both sides share more documents and ask each other questions under oath.
At the trial, the plaintiff goes first—presenting their case, calling witnesses, and showing evidence. The defense can respond and ask the judge to dismiss the case if they think the plaintiff hasn’t proven it.
Both sides may bring in experts to give their opinions. After all the evidence is shown, each side summarizes their arguments, and the judge decides the outcome.
If one side thinks the judge made a legal mistake, they can appeal to a higher court. That court can keep the decision the same, change it, or order a new trial.
What is the Contingency Fee?
Contingency fee: a lawyer’s fee payable on the condition of winning the case.
* If the lawyer does not win the case, the lawyer does not get paid.
* If the lawyer does win the case, the lawyer will then receive a previously-agreed amount of the award that his or her client expects to receive from the losing party.
Define Class action
Class action: an action where a single person represents the interests of a group, who will share in any award.
Ex. Consider a case of a single negligent act that derails a passenger train, injuring a hundred persons. There is nothing to be gained through a series of a hundred trials on the same facts, so judicial economy would be achieved by combining all the actions into one
