Final Flashcards
Difference between public and private law
Public law sets the rules for the relationship between the individual and society. If someone breaks a criminal law, it is seen as a wrong against society.
Private law sets the rules between individuals. It is also called civil law. Private law settles disputes among groups of people and compensates victims, as in the example of the fence. A civil case is an action that settles private disputes.
What is common law?
The common law is law that is not written down as legislation. Common law evolved into a system of rules based on precedent. This is a rule that guides judges in making later decisions in similar cases.
How to make a law?
1 Government ministers or senior public servants examine the problem carefully and suggest ways in which, under federal jurisdiction, a law could deal with pollution.
2 They would draft the proposed law.
3 The law has to be approved by the cabinet, which is traditionally made up of members of Parliament chosen by the prime minister.
4 This version is then presented to Parliament as a bill to be studied and debated by members.
5 The bill becomes law if it is approved by a majority in both the House of Commons and the Senate. It also needs to be assented to by the Governor General in the name of the Queen. All laws need royal assent.
Three branches of government
executive - Prime Minister
Legislative- parliament
judiciary - courts
what is a summary conviction?
offences, which are the most minor cases, for example causing a disturbance
what is an indictable offence?
offences, which are more serious and include theft, break and enter, and murder.
Agar v. Canning
Intentional tort, defendant brought stick down on plaintiffs face in retaliation, goes beyond limit exempting liability
what is an intentional tort?
intentional application of force directly against another person without that person’s consent
2 element of an intentional tort
1- intent
2- voluntary or volitional
Types of intent
transferred- tried to hit one person but hurts another instead
imputed- interpret intent by what the act shows
standard of proof
amount of evidence that the plaintiff has to present to win
Balance of probability
in civil - they tend to favour the defendant over the plaintiff
criminal - has to be beyond reasonable doubt
Difference between assault and battery
Battery is the intentional application of force directly against a person without their consent. Assault is creating the apprehension or threat to harm another person
What categorizes an assault
present ability, present intent, and not been made conditional
What is a pure defence?
defence presented when the element have been proved e.g consent, self defence, third party
Motive
the basis upon which someone attacks someone– not a defence
Mistake
not a defence– hunting but accidentally trespass
Provocation
someone is provoked– not a defence
Colby v. Schmidt
civil, rugby, plaintiff had fractured jaw after colliding with elbow, key factor: credibility
Babiuk v. Trann
civil, rugby, Trann punched babuk for stepping on teammates face, used pure defence of third party and case was dismissed, went to appeal court decided it was a reasonable amount of force and the case was dismissed
Crocker v. Sundance
civil, negligence, moguls tubes, trial Sundance found 75% liable, Sundance appealed was found not liable, at supreme court Sundance found liable for breach in duty of care
Karpow v. Shave
spectator punches player as leaving ice, uses 3rd party defence but loses, spectators should not be executing punishment on players
Sarian v. Pereira
ejected from soccer game in london and kicks ref in the back – concept of concurrence
Categories of damages
General – pain ad loss of income
Special– claims that can be clearly established on paper
Punitive – punishment– awarded when someone is in a position of power
Elements of negligence
duty, standard, breach, causation
Negligence–Dear Santa Bring Clarissa real Deal Diamonds
Duty Standard Breach Causation remoteness, Defences, Damages
Volenti non fit injuria
assumption of risk
Zapf v. Muckalt
Hit from behind, standard of care, determined it was a hit from behind so he has absolute accountability
absolute accountability
when you go to court you will lose because you have no defence, checking from behind, Zapf v. Muckalt
standard of care
to act as the reasonable person would in the situation
King v. Redlich
Redlich took a shot in warmup and it ricocheted and hit King in the head, plaintiff argued a breach in the standard of care, case dismissed, could not have forseen
waivers
can be used to defeat the plaintiff if they are properly constructed and presented to the person, brought to their attention
Temple v. Hallem
softball, base runner, difference in size, in trial found liable bc he broke sliding rules, in appeal found not liable because the catcher had broken the safety rule by blocking path– rules are crucial but don’t decide guilt
Hamstra v. BC rugby union
mismatch, untrained prop, no dominance so no advantage and case was dismissed
Occupier Liability Act
the coach and the facility have a legal requirement to protect those engaging in activity, duty to not create a danger and know the cardinal safety rules
Olinski v. Johnson
lacrosse players attack ref, coaches have a obligation to control his players, occupier liability act
Thomas v. Hamilton board of Education
football player breaks neck, determine whether coach should take careful prudent or supra parental standard, dismissed at trial and at appeal court
Vandenakker
first aid responder in Thomas case who removed helmet, found not liable, courts are unlikely to go after first aider unless they are grossly negligible
MacCabe v. Westlock
gymnastics, back flip, quadriplegic, used supra parental, school board found 100% negligible, appealed and decided there was some contributory negligence and reduced damages by 25%
Henderson v. Canadian Hockey Association
hockey player went over boards and collided with ref during shift change, court dismissed and provided summary judgement in favour of the hockey association
Chatelain v. Premont
Premont didn’t think about football rules and was to know that from the start to the end of the season there can be no change in weight up to a certain amount of lbs, issue of mismatch
Important Factors to make a safe environment
suitability, fitness knowledge, progressively taught, proper supervision, RTP, fatigue, mismatch, emergency procedures, rules of sport governing body
Smolden v. Whitworth
amateur ref found liable for taking care of rugby players, scrum collapse
Bowels v. Evans
ref found liable, didn’t follow the cardinal safety rules and allowed and unskilled player to replace another one, similar to Hamster
Difference between Can and USA
canada has carelessness standard and America has recklessness ( more protective of sport)
Elements of a criminal act
actus reus (conduct requirement) mens reus(fault requirement)
Difference between an intentional tort and assault
tort is directly where assault can be either direct or indirect
Difference between a summary and an indictable offence
indictable is more serious
R.v. Watson
Watson punched another player and the ref, no punishment or suspension, he is criminally charged with assault causing bodily harm
R.v. Jobidon
fight at wedding, punches and kills person, issue of whether you can consent to this, acquitted at trial, then found guilty at appeal,, left open the question of whether or not athletes can consent to harm inflicted by fist fight
R.v. Cey
check from behind into boards, concussion, acquitted because player said he would continue to play regardless and he consented to it; crown went forward and won; they were after social principle; you can no longer check someone close to the words and have a legal defence
R.v. Leclere
checking from behind,quadriplegic, knew it would cause harm but did it anyways, judge found him not guilty because he said you can’t find a hockey player guilty of a criminal act
R.v. Azanjac
basketball, chest bumped and punched ref, joint submission, talented player and didn’t want to affect his future; conditional discharge
suspended sentence v. conditional discharge
suspended is getting a conviction and ultimately means they can go to jail if they don’t complete the necessities
R.v. Bentz
Guy gets check from behind and then swings his stick breaking victims jaw, defence said he could not form intent because he was concussed affecting his frontal lobe
R.v. Faith
hits him in the jaw, injured party consented to fight, right to defend yourself but you can’t if you don’t see the blow coming
R.v. Claro
coach sends substitute in, Claro headsets his own teammate, found guilty of assault causing bodily harm , intermittent jail time
R.v.Muir
she takes slap shot in safe hockey league, victim is chirping her and Muir elbows her and she falls and breaks her leg, court said it crossed the line, will be appealed
R.v.RM
RM is minor, victim snows goalie , RM has helmet ripped off and suffers broken nose, originally no charge, parents went to the media, public opinion encouraged a charge
R.v. Tropea
cross checked victim and then kicked her with skate, given suspended sentence
R.v. Hepburn
sexual assault, assistant coach for ringette, found guilty
3 elements of sexual assault
Touching, Invitation, Exploitation
R.v.Leitch
figure skating, coach slapped player for bullying girl, tried to use s.43 as defence, coaches don’t stand in place of a parent
R.v.Vandergraaf
Winnipeg jets, threw penut butter jar and hit fan , found guilty of assault with a weapon, successfully appealed for failure to prove mens rea
R.v. Bond
threw bottle at football game in Ottawa, found guilty of criminal negligence
Purpose of administrative law
to prevent an abuse of power
requirements of natural justice
know the case against you, opportunity to be heard, unbiased hearing
Complainants in admin law must have:
exhaust all internal remedies. must have “clean hands”
interim injunction
extraordinary circumstances, strong case, balance of convenience(decision maker harmed less than compliant)
MacDougall v. OFFSAA
granted interim injunction, trying to submit transfer to take law course and play basketball, denied, many definitions of program change through each level, take it to court– won, it affected his education
Gretzky.v. OHA
tried to play in toronto, denied he didn’t exhaust all internal remedies
Gail Cummings
12 yr old girl in 80s, tried to play on boys team and was not allowed to play in tournament, didn’t win due to problems with the human rights code, Debbie Baszo, and Abigail Hoffman
UBC v. Berg
UBC argued that the human rights code doesn’t apply to them because they’re a private organizations; decision that human rights does not stop at the university gates
Human Rights code v. charter
Charter needs government connection, human rights is private or public
Types of Discrimination
Direct, Constructive, Systemic
Areas of human rights tribunal
goods, service and facilities
Allowable Discrimination
BFOR, affirmative action, special interests, age, public decency, recreation
Justine Blainey
2 barriers; services available to public §ion 19.2, went up to appeal where it was decided 19.2 conflicted with charters purpose to avoid government involvement, had to be rewritten
special program status
given to disadvantaged groups, why you can have a girls only hockey camp
Tammy McCloud
bowling with ramp, private, tribunal, decision made in Tammys favour after the competition, given compensation
