Comm 304 Midterm 1 Flashcards

1
Q

Role and Function of Law

A

law determines rights, freedoms and obligations of society, represents values and beliefs of society, It is made by the sovereign to regulate the conduct of participants in society within its jurisdiction
Law is typically backed up by sanctions for noncompliant participants
It has three main roles:
Establish rules of conduct in society
Dispute settlement
Protect individual/business

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2
Q

Common Law vs Civil Law

A

Common Law: Based on English Law
Found in many anglo-saxon countries (Ireland, UK, US, Canada, Australia)
Sources of law:
Past cases
Statutes/Codes/Acts and accompanying regulations
Regulate isolated matters in detail
Often interpreted literally
Concept of precedent applies
Civil Law: Based on Roman Law
Found in many European countries (France, Italy, Germany, Spain) and in Quebec
Sources of law:
Statutes/Codes/Acts and accompanying regulations only
Comprehensive regulation in broad terms
Often interpreted teleologically
Concept of precedent does not apply

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3
Q

Common Law concept of Precedent

A

Known as “stare decisis”, i.e., to stand by a previous decision
Only applies to courts in the same jurisdiction

Example: a decision by the BC Court of Appeal does not bind the SK Court of King’s Bench
Only applies to decisions of a higher court
Example: a decision by the SK Court of King’s Bench does not bind the SK Court of Appeal
Even if a decision is not binding upon it, a court may still decide to follow it
Common law Supreme Courts rarely overrule themselves; they prefer to argue on cases being “distinguishable on facts”
Lower courts rarely overrule themselves and state new rules
Any act of parliament can overrule the most established common law rule

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4
Q

Sources of Law

A

Common law, equity and statute law (acts, statutes regulations)

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5
Q

Substantive Law

A

body of law that establishes rights and obligations of individuals/businesses

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6
Q

Procedural Law

A

body of law that establishes how a substantive right is enforced

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7
Q

Private Law

A

body of law regulating the relationship between individuals/businesses

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8
Q

Public Law

A

body of law regulating the relationship between individuals/businesses and the state/government

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9
Q

Charter of Rights and Freedoms

A

Is part of the constitution
Sets out basic rights and freedoms for all Canadians (and some for permanent residents) regulating the citizen-state relationship
Applies to acts of governments only, i.e.
Laws & regulations need to be in compliance with the charter
Governments in their capacity as participants in business activities need to be compliant with the charter
It does not directly apply to actions between private people and businesses
Unlike Charters in other countries (US, Germany), the Canadian one does not include a right to own property
Charter rights are not absolute!

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10
Q

Federal vs Provincial Law Making Power

A

Examples of exclusive federal jurisdiction:
Currency and Banking
International Trade and Interprovincial Trade
Shipping
Intellectual property
Bankruptcy & Insolvency
Postal services
**Examples of exclusive provincial jurisdiction: **
Laws on property and civil rights
Local trade and commerce
Provincial incorporation of companies
Education and schools
Municipalities
Hospitals and prisons

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11
Q

Judicial System Provincial

A

Provincial courts hear most business-related disputes
Jurisdiction of trial court depends on amount in dispute and/or subject matter of lawsuit
Judicial review of decisions of provincial administrative tribunals

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12
Q

Federal Judicial System

A

Disputes between provincial governments and the federal government
Disputes on intellectual property matters (patents, copyrights, trademarks) and maritime law
Judicial review of decisions of federal administrative tribunals

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13
Q

Parties involved

A

Plaintiff vs. defendent

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14
Q

Burden of proof:

A

plaintiff

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15
Q

Standard of Proof

A

balance of probabilities (not: beyond a reasonable doubt which applies to criminal matters)

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16
Q

Administrative Tribunals (AT)

A

Are set up under federal or provincial legislation
Specialized governmental agencies with quasi-judicial decision-making powers on very wide range of topics
Are expected to be independent and non-political
Apart from decision-making power, may also have regulatory/licensing functions (example: law societies)
Often called “Board”, “Commission”, or “Tribunal”

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17
Q

Alternative Dispute Resolution (ADR)

A

outside the court system
Different forms of ADR for different types of disputes with different outcomes
Tremendous growth in ADR over past two decades in Canada
Reasons for parties opting for ADR are:
Speed (court proceedings are very slow)
Flexibility and control over proceedings
Confidentiality (award may not be published)
Costs (though some ADR can be expensive)
Choice of forum/adjudicators
More suitable to retain long-term relationship
Solution-oriented/effective results
Limited/no appeal
In international setting: no other effective dispute resolution mechanism may be available

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18
Q

Negotiation

A

Should be a first step in attempting to settle any business dispute
Typically done between the parties with no third party involved
Outcome very much depends on skills and negotiation style/tactics of involved parties

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19
Q

Negotiation Pros

A

Inexpensive, flexible and fast
Parties control the process
Confidential (based on trust)
Can lead to win-win business outcomes
Prevent further conflict escalation
Retain long-term business relationships

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20
Q

Negotiation Cons

A

No guarantee for satisfactory outcome
Power imbalance can be of disadvantage for the weaker party
Even if agreement is reached, enforcement might be a challenge
May be used as a delay tactic by one party with no real interest in resolving the dispute

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21
Q

Mediation

A

Involves a third party (mediator) to assist parties in settling their dispute
Wide range of types and styles of mediations available
Mediator assists parties to reach an agreement, they do not to impose a solution upon the parties
Focuses on non-confrontational settlement, thus preserving the business relationship
Flexible, speedy, confidential and cost-effective allowing for outcomes not available in traditional court proceedings
If successful, outcome is an agreement which is enforceable as a contract (with all limitations inherent in contract enforcement)
Mandatory mediation applies in some civil court proceedings prior to trial
Mediation also has some drawbacks:
Parties can withdraw at any time (unless mediation is mandatory)
Dependence on skill of mediator
If unsuccessful, other means of dispute resolution may get more difficult
Due to lack of formal process, unsuccessful mediation may be a waste of time and money as there is no guarantee for an outcome

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22
Q

Arbitration

A

Mirrors to some extent a court process with one or more arbitrators deciding the dispute for the parties by issuing a binding arbitration award
Arbitrators appointed by parties, who are typically subject matter experts in a given field or appointed by an institution from a list of arbitrators
Hearings are less formal with simpler and more flexible proceedings than court proceedings
Available remedies are more limited than in court proceedings (no injunctions)
Arbitral awards can be enforced by law and may be subject to judicial review (but no formal appeal)
Preferred by businesses over litigation due to its speed, cost-effectiveness, confidentiality and fairness
Increasing practical relevance in areas such as:
Consumer disputes
Disputes between businesses
Labour disputes (see below)
Family law disputes

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23
Q

When not to arbitrate

A

If need to/want to set a precedent
If relationship is damaged beyond repair and does not need to be preserved
If concerned about the lack of transparency/appeal possibility in the process
If litigation is the better alternative (in some countries it is not)
If a remedy is sought which an arbitrator cannot grant

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24
Q

Labour Arbitration

A

Is of essence in unionized workplaces to settle disputes over the interpretation, application and enforcement of a collective bargaining agreement (CBA)
Decisions by one arbitrator or an arbitration board (typically 3) are final and binding but subject to judicial review; arbitrators are chosen by the parties
Arbitrators are not bound by stare decisis, but still arbitrators strive for consistency in their reasoning
Arbitration process is set out in the CBA or failing this, in applicable legislation
Arbitration is the next step after initially trying to resolve the dispute through the grievance process
In practice, many arbitration cases focus on employee discipline, especially on whether the employer had “just cause” for dismissing an employee
Labour Arbitrators are not to be confused with Labour Relations Board and typically have wide powers in deciding a suitable remedy for a given case
Relevant legislation in SK: The SK Employment Act, part VI, sections 6-45 to 6-53

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25
Q

Contract Law in Context

A

A contract is a legally enforceable promise between two or more parties
Very old and comprehensive area of law
Contract law derives from both common law and equitable sources
Contract law of fundamental importance for business transactions
Pacta sunt servanda – promises ought to be performed
Specific rules apply to specific types of contract, e.g.
Insurance contracts
Contracts for the sale of land
Lease Agreements
Construction contracts

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26
Q

Elements of a valid contract

A

Intention of the parties to create a legally binding contact
Offer
Acceptance
Consideration
Legal Capacity
Legality
Sometimes, form requirements

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27
Q

letters of intent, memoranda of understanding (MOU) & agreements “subject to contract”

A

Preliminary agreement might be “agreement to agree” and thus unenforceable as it would lack key/certain terms
Some elements of “agreement to agree” may be binding, e.g., obligation to maintain confidentiality
In professionally drafted letters of intent and MOUs, intention to be bound is typically explicitly excluded
By contrast, commitments letters by lenders, indicating commitment to enter into a loan with a borrower on certain terms and conditions in the future are considered binding contracts

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28
Q

Practical relevance in letter of comfort (LOC) situations where:

A

Large commercial loan is negotiated between a bank and a corporation which is a subsidiary of another (large) corporation
Lender and parent company agree on a LOC
Parent provides various assurance in LOC regarding the state of affairs of the subsidiary
Thus, bringing costs of borrowing for subsidiary down
Enforceability of LOC questionable and subject to controversy

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29
Q

Lack of Inention to create legal regulations

A

Scenarios where dealings between family members do create legal obligations:

Commercial transactions between family members, e.g., sale of real property
Non-commercial transactions between family members, e.g., a family member needing care might compensate another family member for providing the service
Marriage contracts regulating e.g., ownership and division of property upon divorce, support obligations, etc.
Co-habitation agreements regulating e.g., payment of rent, utilities, car usage
Winning Lottery and splitting it

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30
Q

Offer

A

Offer is a communication of the offeror to the offeree to enter into an agreement on certain terms
Offers are to be distinguished from invitations to start negotiations/bargaining
Mere quotations of prices are not offers
Advertisement of items for sale are not offers
Offers can be made to the public at large, typically in form of a unilateral contract (reward): “if you do X, I will pay you Y”
Special rules apply for tender processes

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31
Q

Offer Retail

A

Display of items in shop does not constitute an offer
Nor does placing the items in a basket by the customer
Presentation of items by customer to cashier amounts to offer

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32
Q

Offer Auctions

A

Involve 3 parties (owner, auctioneer (agent of owner) and highest bidder)
Individual bids are offers that may/may not be accepted by auctioneer
Seller not bound prior to fall of the hammer and can withdraw item for sale
Bids exceeded by higher bids lapse

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33
Q

Acceptance

A

Acceptance has to mirror the offer – otherwise no meeting of minds and no contract
Acceptance can be explicit or inferred from the party’s conduct and must be unconditional
A counteroffer is not acceptance and it “kills the original offer”, meaning the original offer can no longer be accepted
Acceptance must comply with instructions of the offer for the manner, place, mode of communication and timing of acceptance
Late acceptance is ineffective if offer specifies date/time until which it can be accepted
If no deadline for acceptance is stated in offer, a reasonable period of time is assumed depending on circumstances of the case (e.g., reasonable period of time for the sale of land different from transaction for sale of perishable goods)
Silence is not acceptance unless a pre-existing contract is in place between the parties which stipulates otherwise

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34
Q

Issue of Battle of Forms

A

Often occurs in commercial settings when parties use standard terms of contract
Likely neither party explicitly agreed to the forms of the other party
Reply of each party forms a counteroffer
Result: the “last shot” rule – party who sends the last document before performance prevails
Approach has been criticized as arbitrary

35
Q

Communication of Acceptance

A

Acceptance must be communicated unless offeror waives the requirement, e.g., unilateral contracts such as rewards
If offer requires acceptance in a given form it needs to be adhered to, e.g., written acceptance v. verbal acceptance

36
Q

Revocation of Offer

A

An offer can be revoked as long as it is not accepted (revocation rule is reflective of the voluntary nature of contracts)
Revocation of offer requires communication by offeror to offeree
Revocation may be effective even if not communicated if the offeree becomes aware that offeror is no longer intending to be bound by the offer

37
Q

Consideration

A

Doctrine of consideration requires for a contract to be enforceable that the promise must be given for something of value in return
Exceptions: contracts under seal, promised donations to a charity which the charity relied on
Promises which lack consideration are gratuitous, sometimes called “naked” or “bare”
Consideration does not need to move between the parties of the contract, it can be given to a 3rd party
Consideration can be an act or forbearance
Forbearance does not need to be for a specific time, if no specific time is agreed, it is for a “reasonable” time
Forbearance typically arises in release cases, where one party promises to forbear from suit in exchange for payment of a certain amount

38
Q

Legal Capacity- Minors

A

Someone under the age of 18 (under The Age of Majority Act in SK) or 21 (under common law)
Protected due to lack of maturity, inability to understand the consequences of their acts and lack of experience
Contracts with minor are typically voidable if for non-essential goods/services and not fully performed by the minor
Contracts with older minors for necessities will bind the minor for a reasonable price
No liability of parents for debts of a minor for non-necessities; if their liability is wanted obtain a guarantee from parents
Employment contracts often perceived as beneficial for minor and enforceable against them unless the terms are unfavourable

39
Q

Legal Capacity- Impaired Parties

A

Are legally treated similar to minors
There are varying degrees of impairment with moments of clarity and capacity to enter into a contract
Significant impairment may be caused by alcohol, drugs or cannabis
Impaired persons will be held liable for contract for necessaries entered into by them
If impaired person is incapable of understanding the nature of their action when entering into a contract for a non-necessary item, it makes the contract voidable, requiring repudiation soon after returning to sobriety

40
Q

Legal Capactity; other stakehoders

A

Corporations: Consequences of separate legal existence are*:
The corporation can own property
Shareholders can be employees (unlike partners in a partnership)
Shareholders can be (secured) creditors
Trade Unions: Unions have a legal existence separate from their members
Consequently, unions can sue and be sued in common law courts in matters not related directly to collective agreements (addressed through arbitration) or an employment related statute (addressed though an administrative tribunal)

41
Q

Legality

A

Agreements to commit an unlawful act
Example: agreements to commit a tort or a crime
Also includes agreements for defrauding or injuring 3rd parties
Rule is not absolute if misconduct is very minor to performance of the contract
Agreements facilitating immoral conduct
Example: agreements to conduct a business to provide services of prostitution

42
Q

Consequences of illegality

A

If an agreement is found to be void due to illegality, a claim for damages of breach of contract cannot succeed because there is no contract. Alternative claims might be:
Restitution, collateral claims, passage of property

43
Q

Legality- The issue of Severance

A

Severance means disregarding the illegal clause and keeping the remainder of the contract in place
Traditional test for severance:
Can remainder of agreement meaningfully be enforced?
Enforceability of the remainder would not be inconsistent with policy considerations rendering the provision illegal in the first place
The blue-pencil rule (courts delete provisions without adding new terms)
Supreme Court of Canada introduced concept of “notional” severance under which a contract clause might be “re-written”

44
Q

Form Requirements

A

Vast majority of contracts today do not require a written form to be enforceable
BUT: in commercial context written form strongly recommended
Often written document provided by one party to the other, at times on “take it or leave it” basis
Issues can arise on matters of incorporation of written terms
Courts are reluctant to incorporate written terms that are unfair or a surprise to the other party
Practical problems can arise with unsigned documents containing terms (e.g. the “ticket” issue)
Reasonable notice of terms might need to be provided to other party

45
Q

The Parole Evidence Rule

A

Two versions of the rule have emerged over time:
**Traditional approach: **in written agreement which on its face appears to be complete agreement, the rule prevents evidence to be admitted which varies, adds or subtracts from the terms
**Modern approach: **in written agreement which on its face appears to be complete agreement, a party could lead evidence suggesting the written terms are only one component of an overall agreement that is partly written and partly oral
Canadian courts not entirely clear which approach to favor with Supreme Court seeming to prefer the traditional rule

46
Q

Privity of Contract

A

Means that only a person party to a contract is bound by it
Can give rise to difficulties in 3-party contexts leaving the 3rd party without redress
Example: A and B enter into a service contract under which B provides services to A
A in turn should pay C (not B)
A fails to pay
Consequence: C cannot enforce A’s obligation
Due to unjust results produced by rule, it has received much criticism in Canada and other common law jurisdictions

47
Q

Why Contracts Fail

A

Contracts fail because of misrepresentation, mistakes and other reasons

48
Q

Misrepresentation

A

Occurs if one party makes a false statement about a material fact which induces the other party to enter into the contract
Misrepresentation has to be about a fact, not an opinion or belief, not “sales talk”
BUT: one who has superior knowledge with respect to matter on which opinion is offered might have made an implicit statement
Example: Esso Petroleum Company v. Mardon
Different forms of misrepresentation:
Innocent (party making the false statement honestly believes it its true)
Negligent (party making the false statements lacks diligence)
Fraudulent (party making the false statement knows or ought to have known that it is f

49
Q

Consequences of Misrepresentation

A

Rescission: Party who was misled may seek rescission, i.e. setting aside of the contract
Rescission must be communicated to the other party and not be unduly delayed
Yet unperformed contractual obligations become unenforceable
Rescission aims at putting the parties in the pre-contractual state by requiring restoration of benefits already transferred
Courts more likely to grant rescission in cases of fraudulent than innocent misrepresentation
Numerous limitations to rescission e.g.:
Rescission is not available if it is impossible to restore benefits already transferred
Example: title to property has been passed to 3rd party who was in good faith acquiring the property

50
Q

Consequences of Misrepresentation

A

Restitution: Means awarding monetary compensation instead of or in addition to rescission
Might be an available remedy where restoration to pre-contractual status is not possible
Traditionally, no such remedy was available even if rescission was not possible
In recent years, Canadian courts recognized restitutionary claims in context of misrepresentation
If misrepresentation amounts to deceit (in case of fraudulent misrepresentation) or negligence (in case of negligent misrepresentation), the party who misrepresented may be liable in tort too

51
Q

Mistake- Misunderstanding

A

Misunderstandings occur if one or both parties are not clear about the meaning of a term/terms of the agreement
Critical question: has there been consensus between the parties? If no consensus, the contract is void.
No consensus if one party is aware of the other party’s mistaken understanding (no “snapping up an offer”) or ought to have known the error
No consensus if the term of the contract are so unclear that neither party can insist on “correct” meaning
No consensus in cases of mistaken identity at least where one party was actively involved in inducing the mistake
No consensus in non est factum cases (rare), i.e. person signing a contract assumes he/she is signing something different
Arising in practice where literate parties fail to read a contract prior to signing and act careless (courts tend not to find non est factum)
Different from where literate parties do not understand what they are reading/signing where no carelessness can be established

52
Q

Duress

A

Rare reason why contracts fail
If coerced party wants, contract can be treated as enforceable
Doctrine also provides basis for restitutionary claim for recovery of any benefits conferred
There are three forms of duress:
Duress to a person
Includes threats to family members
Includes threats of unlawful confinement and imprisonment
Sufficient for threatened party to learn about the threat from 3rd party, no direct communication of threat required
Duress of Goods
Interference with property rights can amount to duress
Includes payment extracted through improper seizure/retention of the other party’s property
Applies to both actual seizure and threatened seizure

53
Q

Undue Influence

A

Can occur if one party dominates the other in such a way that the latter cannot make his/her own decision
Can take the form of actual or presumed undue influence
If party can establish the presumption of undue influence, rescission is available to the weaker party, unless the presumption can be rebutted
Important element of presumed influence is a degree of influence that undermines weaker party’s capacity for independent action
Independent legal advice is neither necessary nor sufficient for establishing independence; the quality of advice is what matters and that it is given in the absence of the dominant party
Traditional remedy for weaker party is rescission, and in some cases, monetary compensation might be available

54
Q

Unconscionability

A

Applies in dealing between complete strangers as well as parties with a pre-existing relationship
For long time, doctrine was based on test of:
Inequality of bargaining power between the parties
Undue advantage for one party resulting from the inequality
Typical examples include:
Sale of land for much less than its value
Giving of improvident guarantees
Disadvantageous release of claims for personal injury
Statutory Unconscionability addressed in all provinces, for SK:
The Unconscionable Transactions Relief Act, 1978 on excessive loans
Available remedy for weaker party is rescission or claim for compensation for value of the benefit conferred if rescission is not available

55
Q

Performance of Contractual Obligations

A

A contract is discharged by complete and precise performance
If performance is not complete and precise the agreement remains in effect
Typical commercial contract requires (a) the payment of money by one party and (b) the delivery of goods and/or services by the other party
Payment requires payment in the correct form (cash, e-transfer, credit card, etc.) and in the correct currency and amount at the due date
Providing goods and/or services requires the seller/vendor to delivery the goods and provide the service at the time, amount and according to the specifications of the contract

56
Q

Conditions Precedent and Subsequent

A

A condition is an essential and important term of the contract
Parties should contractually agree on which terms qualify as conditions
The breach of a condition entitles the innocent party to terminate the agreement and thus being no longer obliged to perform his/her obligations under the contract
A condition inserted for the benefit of one party can be waived by that party (subject to certain exceptions)

57
Q

Breach of Contract

A

Occurs if one party expressly or impliedly refuses to perform the contract and is called repudiation,
Typically giving the innocent party a right to treat the relationship as terminated, if the term that was broken was a condition classified as such by the contract (or through contract interpretation) or legislation
Thus, legal consequences of breach of contract and the rights of the innocent party differ depending on which contract provision was broken and whether the party at fault already performed some part of the contract
If party at fault performed substantial part of the contract, innocent party might be precluded from disaffirming the contract
Repudiation can occur even before performance is due in which case it is an anticipatory repudiation and has the same effect as if the breach of the contract has already occurred
Innocent party can affirm (awaiting performance) or disaffirm (elect to terminate) the contract
If innocent party elects to disaffirm the contract, he/she can commence action for breach immediately, not needing to wait until date of performance
Disaffirming the contract does not make it ab initio void but excuses the innocent party from future performance

58
Q

Damages- The Expectancy Principle

A

Compensatory damages are the usual – but not the only - remedy for breach of contract
Damages are calculated based on the expectancy principle, meaning the victim is financially put in the position as if the contract would have been performed
Damages awarded on the expectancy principle are “forward-looking”, unlike in tort cases, which are “backward looking”
Damages do include consequential damages, such as loss of profit

59
Q

Specific Performance

A

Is an equitable remedy only available in rare circumstances where damages are inadequate
Means the court orders the party in breach to perform the obligation that has been breached
Typical settings in which specific performance plays a role:
Sales of land – presumption of uniqueness of land, but presumption can be overturned
Sales of goods – purchaser must prove that subject matter is rare/unique with no substitute readily available
See also: Sale of Goods Act (SK), section 51 on the availability of the remedy for the buyer
Sales of shares
Not an issue for shares in publicly traded companies
Specific performance likely to be ordered for shares in a privately held corporation (issue of difficulty of evaluating the shares)
Specific performance can be combined with a monetary award
Most commonly occurs in real estate transactions
Example: seller unable to provide ownership rights/quality of land promised in contract leading to specific performance with an abatement, i.e., a reduction in purchase price

60
Q

Injunctions

A

Commonly, play a role in scenarios where one party has contractually committed not to do something
Typical cases arises on post-employment non-competition clauses or a celebrity refusing to abide by a negative covenant
Power to issue interlocutory injunctions usually conferred by statute
Issuance of interlocutory injunction often contentious
Factors taken into account by courts to determine whether to issue an interlocutory injunction:
Does the plaintiff have a strong case?
What is the defendant’s defence?
Would not issuing the injunction result in irreparable harm?
What is the balance of (in)convenience, i.e. which party would suffer greater harm by granting/refusing the injunction?

61
Q

Disgorgement

A

Disgorgement is a claim to the profits enjoyed by the party in breach because of the breach
Traditionally, the victim’s claim for damages was limited to the expectancy principle, i.e., to put the victim in the position it would have been in had the contract been performed
In more recent decisions, awarding the victim the profits made by the defendant through the breach was accepted by courts in narrow circumstances (example: breach also amounted to a criminal offence)
Fact that breach was cynical or deliberate is not sufficient to grant disgorgement relief
Fact that purpose of breach was to enjoy more profitable contract with a 3rd party also not sufficient to grant disgorgement relief

62
Q

What is Tort

A

Comes from the Latin term “tortus” meaning wrong
Very old and broad area of law
Involves a wrong committed by one person against another person, another person’s property or another person’s reputation
No need for business transaction between the involved parties, often there is none
Not all wrongs are torts, but some torts are criminal acts
Not all torts involve intentional acts
Typical elements of a tort include:
A wrongful act or omission
Causation, i.e. the wrongful act/omission caused harm
Quantifiable harm

63
Q

Battery

A

Unlawful touching or striking of a person
Requires intention to harm
Actual violence not required if injury occurred
If no harm is done, must be offensive or accompanied by threat of violence

64
Q

Assault

A

Is a threat of violence or injury causing reasonable fear of imminent danger
Does not need to be accompanied by the application of force to be actionable

65
Q

Defamation

A

Can take the form of libel or slander and requires “publication”
Occurs if false statement is made that can injure a person’s reputation
Increasing practical importance due to social media
In order to avoid defamation claims as a business:
do not engage in negative advertising
internet/social media policy
for large(r) business: involve your media/public relations department
review public statements which criticize your competitor/its products with a lawyer prior to publication (or do not publish in the first place)

66
Q

Slander of Goods

A

Also known as “trade libel” or “commercial disparagement”
Arises typically in the context of negative advertising
Includes for example false statements about products of competitors claiming such products are faulty or unsafe to use
Tort can also arise in consumer context where consumers make such untrue statements about the products of a business

67
Q

Slander of Title

A

Refers to untrue statement about another person’s right to the ownership of goods
Includes accusations of goods being stolen, produced in violation of laws (e.g., patent violations) or improperly imported
Can also take form of allegations of “passing off”, e.g., claiming a competitor is selling off its own goods as those of a famous manufacturer/label

68
Q

The Tort of Unlawful Means

A

Allows suing for economic loss resulting from a civilly actionable wrong against a third party

69
Q

The “But For” Test in Causation

A

issue whether the wrongful conduct actually caused the injury of the victim
Acts or omission must be connected in a direct way to the injury without intervening events breaking that chain
Thus, courts ask: would the injury have occurred “but for” the conduct of the wrongdoer?
Only foreseeable damages from the wrongdoer’s conduct are compensable in negligent tort cases, not any extreme reactions to events not foreseeable by a reasonable person
Issue in practice of what can reasonably be foreseen?
In reality, often combination of factors lead to injury with multiple parties at times playing a contributory role
Test is irrelevant in cases of strict liability where intent or negligence does not matter

70
Q

Vicarious Liability of Employers

A

Vicarious liability means liability at law of one person (employer) for acts of another person (employee)
Is a departure from basic theory that a person who injures someone should bear the resulting loss
Employment relationship is the one most commonly giving rise to vicarious liability, others include liability of partners in a partnership or motor vehicle owners for negligent drivers
Reasons for holding employer liable:
Employees may not have financial means for damages they cause, while employers do
Employer should bear responsibility for loss caused by work the employer is directing
Employer can obtain insurance coverage for such liability
Encourage employers to take proactive steps to reduce potential harm
Requirements for holding employer liable:
Tort must have been committed by employee “in the course of their employment”
Tort just happening during working hours not sufficient
Must have a direct link to the duties the employee ought to perform

71
Q

Occupiers Liability

A

Can be triggered by someone injured at/near a business premises
Occupier does not need to be the owner of the premise
Occupier owns duty of care to anyone entering their business premises
Example: snow/ice removal in winter
Keeping premises safe (e.g., no falling pieces from the roof)
Standards of care depends on nature of business and ability to patrol property (if hard to patrol, lower standard)
Today mainly addressed through provincial legislation in most provinces, but not in SK
Therefore, in SK, traditional common law principles apply

72
Q

Manufacturers Product Liability

A

Arises out of damage caused to people or property by defective or dangerous products
Manufacturer owns duty of care to anyone reasonable foreseen to use the product
Certain products are inherently dangerous, thus consumer/customer has to be warned of danger and instructed on proper use of product
Manufacturers over time came up with other innovative risk management techniques, e.g., bitter taste of colourful household cleaning liquids
Defective v. dangerous goods
If design issue, then all products impacted
If manufacturing problem, only some products may be impacted

73
Q

Nuisance

A

Arises if one party interferes with use and enjoyment of someone else’s real property
Can result from intentional, negligent or no-fault conduct
No need of ownership of the impacted property to bring a claim for nuisance
Tenants of a business premises can bring a nuisance claim against their neighbours
Can come from wide variety of sources, e.g., noise, smoke, fumes, smells, spills, vibration or contamination, but also non-environmental sources
Accidents such as broken water/sewage pipes can result in nuisance lawsuits
Nuisance can occur even without actual or physical damage to the real property
Interference with property has to have substantial and serious impact on enjoyment of property to be actionable
Very much depending on individual circumstances, esp. location
Municipal zoning by-laws, building codes and environmental laws address impact of different kinds of land/real property use, but do not entirely replace the tort of nuisance
Injunctions are an important remedy in nuisance cases, esp. if no damage to the property is done

74
Q

Sale of Goods

A

Tremendous practical importance both in transactions between businesses and between businesses and consumers
Is a transaction based on a contract and thus common law contract law applies unless modified by legislation
For SK: The Sale of Goods Act, 1978; very similar legislation exists in all provinces except Quebec
Typical features of a contract for the sale of goods include:
Transaction is in movable goods (chattel)
Sale of goods can be absolute or conditional for goods existing or future goods
Difference between “contract of sale” (ownership transfers immediately) and “agreement to sell” (ownership
transfers in the future)
Sale of Goods Act does not apply to real estate transactions and transfer of intellectual property rights
Not to be confused with the contract for work and material
Transaction must be for money, not a barter of goods
No form requirement (can be oral, in writing, implied from conduct) unless goods exceed certain value ($50 in SK)
Numerous exceptions to form requirements in practice
Example: buyer accepts part of the goods sold and receives them

75
Q

Transfer of Title

A

Timing of title transfer critical as risk of goods being destroyed/damaged passes at this time
Timing of transfer of title might impact 3rd party rights
Parties to the contract may determine when title passes
If they fail to do so, Sales of Goods Act determines when title passes
Transfer of title may also be determined based on parties’ conduct
Transfer of title may not be at the same time as obtaining possession of goods
Depending on the nature of the goods sold (specific goods v. goods not in deliverable state) title passes at different time

76
Q

Lien

A

A lien is a security interest by the seller in goods allowing seller to retain possession
Applies if seller is unpaid but still in possession of goods and certain additional criteria are met

77
Q

IP Law

A

Value of an IP is the owner’s right from preventing others copying it
In practice, almost all businesses have some type of IP worth being protected
Most IP law is under federal jurisdiction resulting in uniformity across Canada
Trade secrets are protected under common law
Copyrights and trademarks are protected by both under common law and by legislation

78
Q

Patents

A

Patent is granted by a government body (the Canadian Intellectual Property Office (CIPO)) and thus requires an application
The invention must be:
(a) something new,
(b) something useful (low threshold for that) and
(c) something inventive, i.e. showing ingenuity, not something obvious

79
Q

Patent Procedures

A

Time is of essence in patent applications (first-to-file approach)
If you wish to patent an invention quick filing is recommended
Issues of patentable inventions can arise in context of employment (best be regulated in the employment contract)
Once patent is granted, the holder should meet public demand for the invention, if not a compulsory license may be ordered
Holder can seek damages (incl. profits made from unauthorized use) and injunctions for patent infringements
Enforcement can be slow and expensive
Enforcement complicated in cases of infringement abroad

80
Q

Copyright

A

Is the right of the copyright owner/original author to control the use and reproduction of work and prohibits reproduction without permission
Wide application to all written and artistic work, including translations of written work and conversion to another medium

81
Q

Infringement

A

Is the unlawful interference with someone else’s copyright
Enforcement of the copyright rests with the holder
Copyright infringement does NOT require any (financial) gain by the wrongdoer
Typical remedies include injunctions and damages
Some infringements, such as software piracy for commercial gain might be subject to criminal proceedings

82
Q

Trademarks

A

Is the unlawful interference with someone else’s copyright
Enforcement of the copyright rests with the holder
Copyright infringement does NOT require any (financial) gain by the wrongdoer
Typical remedies include injunctions and damages
Some infringements, such as software piracy for commercial gain might be subject to criminal proceedings

83
Q

Industrial Design

A

Is the unlawful interference with someone else’s copyright
Enforcement of the copyright rests with the holder
Copyright infringement does NOT require any (financial) gain by the wrongdoer
Typical remedies include injunctions and damages
Some infringements, such as software piracy for commercial gain might be subject to criminal proceedings

84
Q

Trade Secrets

A

Trade secrets include technical information such as methods, processes, recipes, etc. which provide an economic value
In practice, equally important is confidential information, such as clients lists, financial data, business plans and strategies
Trade secrets and confidential information are not addressed in specific legislation but protected in common law