LAW INDEX CARDS Flashcards
NEGLIGENCE
An action is negligent only when:
• a duty of care is owed, and
• the standard imposed by this duty is breached, and
• harm or loss is suffered, and
• the breach of the standard causes or substantially contributes to the harm or loss
Interpreting the Law
• Jurisdiction–therulethatdetermineswhothe
court has jurisdiction over, and to what degree
• Precedent–therulethatrequiresacourtto follow a decision in a previous case with similar facts
• Stare decisis – this blends the two and is the rule that requires a court to respect a precedent and to respect the decision of other courts of the same or higher status (depending on province and on level of court)
STANDARD OF CARE
- WRITTEN
- UNWRITTEN
- COMMON SENSE
- CASE LAW
CONTRACT PRINCIPLES
- Offerandacceptance • Consideration
• Proper parties
• Contract length, renewal, termination – Right of first refusal
– Option for renewal, Right to negotiate
• Contentofthecontract - Damages
LIMITING CONTRACTUAL LIABILITY
• Age of majority
• Duress or undue influence • Honest mistake
• Misrepresentation
• Illegality
LEE v. SHOWMEN’S GUILD OF GREAT BRITAIN - 1952
- The legal basis of a tribunal is founded on a contract between the organization and its members, and the terms of this contract are found in the organization’s bylaws and governing documents.
- Tribunals are subject to the rules of natural justice (also known as procedural fairness). In other words, an organization must be fair in how it carries out its powers and makes decisions.
FAIRNESS - 3 RULES
- AUTHORITY – The authority to make a decision must be properly vested in the decision-maker and he must exercise that authority according to established policies, rules and procedures
- RIGHT TO A HEARING – The person affected must know the case to be met and must have an opportunity to be heard
- RULE AGAINST BIAS – The decision-maker has a duty to listen fairly to both sides and to reach a decision untainted by any form of bias
STANDARD OF REVIEW
“The role of an arbitrator hearing an appeal under the Code is not to mount the judge’s chair and decide between dueling coaches or judges as regards the relative merits of the performance of one or more athletes, or their differing interpretation and application of national or international rules of their sport. Boards of arbitration are neither qualified nor mandated to substitute their judgment for that of expert bodies in matters of technical athletic performance or achievement. The role of an SDRCC arbitrator, who does bring a degree of knowledge in the principles of administrative law and procedural fairness, is to determine whether an NSO has fairly communicated its own rules to athletes vying for team selection, has faithfully adhered to those rules and has administered its selection process in a manner devoid of arbitrariness, discrimination or bad faith”.
Four Further Principles
- Procedural fairness is a flexible concept
- Expert tribunals are owed a high degree
of deference - Where rules are unclear, one can look to a purposive interpretation to resolve the issue
- Where a contract is ambiguous, such ambiguity should be resolved in favour of the party adversely affected
DEFINITION - ANDREWS
“…discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages, on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society.”
Law Society of British Columbia v Andrews (1989)
THE LEGAL ANALYSIS
• Istherejurisdiction?
• Isthereaservice?
• Isitcustomarilyavailabletothepublic?(Berg, Gould)
• Istherediscrimination?(Andrews)
• Is the discrimination on a prohibited ground? (as
defined in the statute)
• Istherejustification(Grismer)?
• Has there been reasonable accommodation?
EMPLOYEE v. CONTRACTOR LEGAL DIFFERENCES
Liability
- Employer is vicariously liable for employees and volunteers, while contractor is personally liable
Taxes, benefits, pensions - Employer deducts taxes and contributes to employment benefits, paid holidays, sick days, income security
Termination - Employer must give notice (unless for cause), contractor requires no notice
EMPLOYEE or CONTRACTOR? The Legal Test
- Control test (to what extent is the worker independent?)
- Integration test (are worker’s tasks integral to organization’s day-to-day business?)
- Economic reality test (does worker own tools, provide supplies, incur financial risk?)
- Specific result test (is work time- specific or ongoing?)
RISK DEFINITIONS
RISK
- The chance of something happening that can
have an impact on achieving desired outcomes
RISK MANAGEMENT
- The process used to identify, assess and control risks so as to
better achieved desired outcomes
RISK MANAGEMENT PROGRAMS
- Formal commitments by an organization to implement, monitor
and evaluate risk management strategies
TECHNIQUES TO CONTROL RISKS
- Retain the risks You don’t do anything because the risk is inherent in the sport
- Reduce the risks You take steps to reduce the likelihood of occurrence, and/or the consequences,
largely by changing human behaviour - Transfer the risks You accept the level of risk but you transfer this risk to others through contracts
- Avoid the risks You decide simply to NOT do something
