Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Law and Society > LWSO 203- Final Exam > Flashcards

LWSO 203- Final Exam Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards MPRE flashcards Civil Procedure 1L flashcards Sociology 101 flashcards
1
Q

How is Civil Law Defined

A
  • Private law governs the relationships between persons

- Persons being defined as individuals, corporations and governments in their civil capacity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Constitutional Basis for Civil Law

A
  • Civil procedure is a provincial jurisdiction (Section 92)
  • “Administration of justice including procedure in civil matters”
  • Depends on the province
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Sources of Civil Procedure

A
  • Embedded in various statues
  • Most contained in the Rules of Court written and adopted by the court itself
  • Common law can also be cited
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

List of Major Steps in Civil Action

A
  1. Initiate Proceedings
  2. Exchange Pleadings
  3. Discovery
  4. Trial
  5. Enforcing Judgement
  6. Appeals
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Initiate Proceedings

A

a) Determine what the appropriate court or judicial center is
- usually Queens Bench
- Provincial Court- Small Claims Courts under 25,000
- Provincial Family Court
b) Determine and describe the parties
- plaintiff is the person initiating the action and the defendant is the person against whom the claim is brought
- class must be properly defined in Class Action Suits
c) Originating Pleadings
- describes cause of action and the relief claimed
- STARTS WITH A STATEMENT OF CLAIM (originating application if specified by certain legislation)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Exchange Pleadings

A

a) State of Claim
- to be filed with clerk of court
- to be served on defendant (responsibility of the plaintiff) within 1 year
- must prove service with affidavit or registered mail
b) State of Defense
- addresses each particular in statement of claim. deny or admit
- can counterclaim against defendant
- can claim against co-defendants of third parties
- to be filed with clerk and served on plaintiff

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Discovery

A

a) Purpose- rules of court
- obtain evidence
- narrow and define issues
- early disclosure of facts and records
- resolution
- discourage delay of proceedings
b) Discovery of Documents
- each party files an Affidavit of Records
- parties can be examined about these documents
c) Examination for Discovery
- no judge present but there is a court reporter
- testimony is under oath
- transcripts read at trial
- corporate parties appoint an officer for discovery

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Trial

A

a) Introductory Comments by Both Sides
b) -Plaintiffs Case: has the burden of proof on a Balance of Probabilities (more likely than not), must rove substantive claim AND damages (that it happened and there was a loss incurred), present witnesses, evidence etc.
c) Defendants Case: presents evidence
d) Closing Arguments by both parties
e) Judgement
- judge or jury finds for the plaintiff, defendant OR BOTH.
- judge or jury awards damages or other specific remedies
- judge can award costs of proceedings in addition to damages
- all claims counterclaims etc addressed
- judge often gives reasons

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Enforcing Judgement

A
  • registered with the clerk of court
  • garnishment of wages, bank accounts or other receivables but must leave enough for them to live
  • Examination in Aid of Execution of Judgement
  • Can seize and sell assets (sheriff)
  • Secured creditors (repoman) can repossess assets without judgement
  • Some limitations
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Appeals

A
  • Alberta Court of Appeal
  • SCC with leave
  • On question of law not fact
  • factum- document of clear concise argument
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Alternative Dispute Resolution

A

a) Settlement during litigation
- most claims before trail
- can fine settlement agreement as judgement of court
b) Mediation
- non binding recommendations of agreed third party
- cheaper/more timely
- common in family law and labour disputes
c) Arbitration
- binding third party arbitrator
- must be agreed upon in advance by both parties
- must choose predefined Rules of Arbitration
- becoming more common in commercial transaction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Definition of a Contract

A

-A legally enforceable exchange of promises

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Source of Contract Law

A

-Mostly common law, some statues to fill in gaps or modify common law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Requirements for a Contract

A
  1. Concensus ad Idem- offer and acceptance
  2. Consideration
  3. Certainty of Key Terms
  4. Intention to Create Legal Relations
  5. Formalities

** FORMED AT TIME OF ACCEPTANCE**

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Consensus ad Idem

A

Offer:
-must be communicated to other party, orally or written terms of offer
-bust be capable of being accepted, contains key terms
Duration of Offer:
-for time specified in offer
-if none: for a reasonable amount of time
-until revoked and revocation is communicated to the other party.
Acceptance:
-offer must still be valid to be capable of being accepted
-must be unequivocal not a counter
-must be communicated to the other party orally or in writing
EXCEPTIONS: unilateral contracts: performance is acceptance (Carlill v. Carbolic Smoke Ball Company) mailed acceptance: @ time of posting. click is acceptance online

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Consideration

A
  • Some contribution to exchange by each party
  • Courts won’t enforce a bare promise (nudam pactum)
  • Can be either: benefit to the person receiving the consideration or a detriment to the person giving the consideration
  • Must only be adequate not necessarily sufficient ex) Courts do not care if it was a good deal
  • Need not be tangible
  • Contracts under seal don’t need consideration
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Certainty of Key Terms

A
  • Conditions: fundamental term, if not met contract is voidable
  • Warranties: not a fundamental term if not met can sue for damages
  • Expressed: written or oral
  • Implied: by reasonable extension of the intention of the parties, by custom or ordinary business practice, common law, stature, unless expressed otherwise
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Contra Preferendum Rule

A

-Contract interpreted strictly against the party who drafts it especially if the other party is unsophisticate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Intention to Create Legal Relations

A
  • Objective not subjective
  • Not merely social or familial relations unless otherwise stated
  • Contracts are unenforceable if: for illegal purposes, entered in to under duress, entered in to as a result of misrepresentation, parties lack the capacity to contract, entered in to under duress/power imbalance or a fundamental mutual mistake about a critical term
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Enforcement of a Contract

A
  • Privity of a Contract- only those privy to a contract can enforce it:
  • parties, principal of contracting agent, not merely the beneficiary of the contract, agency or trust relationship
  • Contract Performance:
  • Parties are held to precise obligations EXCEPT: force majeure- performance not possible due to an act of god or the contract is frustrated
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Remedies for a Breach

A

Compensatory Damages

  • But for test: if it wasn’t for the defendant’s actions i would not have had to blank. to put parties in to the position that they would have been in but for the breath
  • plaintiff is required to mitigate their damages
  • partial performance- quantam meruit damages
  • damages must naturally flow from the beach

Punitive Damages
-when defendant acts in a high handed or unfair manner
-to punish or send a message
Specific Performance
-equitable remedy where damages are not adequate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Carilil v. Carbolic Smoke Ball Company

A

-Ratio Decidendi: exception to notification of acceptance if the offeror makes clear that performance is enough. unilateral contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

General Forms of Contracts

A
  • Unilateral v.s Bilateral
  • Unilateral: act is acceptance
  • Bilateral: binding as soon as it is accepted, even if performance hasn’t occurred yet
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Rescission and Rectification- Contract Remedies

A
  • Rescission: contract is cancelled and the parties are returned to their state before the contract
  • Rectification: contract rewritten to correct mistake
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Individual Contracts of Employment

A
  • Oral or Written: company policies, communications
  • Employment Standards Code: minimum standards that cannot be avoided
  • Reasonable notice of termination is an implied term of the contract
  • How long it would take you to find another job in a similar position, length of service and age are factors
  • ***Bardal v. Globe and Mail (275)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Collective Agreements (Employment Contracts)

A
  • Labour Relations Code
  • Unions are certified as exclusive bargaining agents for a group of employees
  • Terms of employment are bargained for between companies and unions
  • Labour Relations Board- regulatory body governing labour relations
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Sale of Goods Act

A
  • Goods: personal property- move-able, not money
  • Real Property: affixed to land
  • Chattels: personal property
  • Property rights refers to the RIGHTS not the actual property
  • Necessities can be sold to minors and the mentally incapacitated
  • Enforcement over 50, with writing
  • Perishing of goods voids the contract
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Tort Law

A
  • Purpose: to provide remedies for people who suffer certain kinds of hard or injury at the hands of others in certain circumstances
  • Plaintiff must prove each element of the specific Tort on a Balance of Probabilities
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Intentional Torts

A

-Trespass- To land; Chattels
-Assault & Battery
-False Imprisonment
-Defamation- slander and libel
-Deceit, Fraud, Misrepresentation
Defenses: consent, self-defense, legal authority, lack of capacity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Negligence

A
  • Duty of Care
  • Breach of Standard of Care
  • Factual Causation
  • Legal Causation
  • Damages

Misfeasance: doing something carelessly v.s Nonfeasance: not doing something you should have

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Strict Liability

A
  • Release of Dangerous Substances: Ryland v. Fletcher

- Nuisance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Trespass

A
  • to real property: uninvited entry on to land
  • trespassers still owed a duty of care
  • trespass to chattels (personal property)
  • uninvited entry in to personal property
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Assault and Battery

A
  • assault: intentionally creating in another person on apprehension of harm threat
  • battery: the least touching of another without consent physical
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

False Imprisonment

A
  • Intentionally totally restraining (physically or by threat) the movement of another without lawful justification
  • Plaintiff must prove confinement
  • The defendant then must prove that there was lawful justification
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Defamation

A
  • A false statement which tends to damage a person’s reputation
  • Slander: verbal statements. historically were only actionable if also Libel: published written statements
  • Defenses: it is the truth; parliamentary privilege
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Misrepresentation

A
  • A false statement of facts- not merely silence
  • May give rise to other torts such as Negligence, Assault
  • May give rise to Breach of Contract
  • May be a separate tort- Deceit
  • False statement of facts
  • Intended that the plaintiff relied on it and suffered damages as a result
  • Criminal liability- fraud
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Duty of Care

A
  1. Was there a duty of care owed to the plaintiff?
    - was it REASONABLY FORESEEABLE that a person may be injured to one’s actions or in-actions
    - degree of proximity
    - probability of the risk of injury
    - possible seriousness of the injury
    - no duty to an unforeseeable plaintiff- neighbour principle
    - Donaghue v. Stephenson extended the neighbour principle from manufacturers to consumers
    - Generally no duty to take affirmative action to help
    - Good Samaritans have a duty of care
38
Q

Duty of Standard of Care

A
  1. Did the defendant provide the Standard of Care required?
    - the standard of acre is that which is REASONABLE under the circumstances
    - if the defendant acted REASONABLE there is no liability even if the plaintiff was injured
    - STANDARD: ORDINARY REASONABLE HUMAN
    - If the defendant had particular knowledge and/or skills
    - Gravity of the risk must be weighed against the utility of the conduct
    - Reference to statues and codes of conduct
39
Q

Causation

A
  • Factual Causation: did the defendants conduct cause the injury
  • But for Test: loss would not have occurred but for the defendants conduct. was the conduct the proximate cause of the loss
  • Material Contribution: did the defendants conduct materially contribute to the plaintiff injuries
  • Legal Causation: were the damages suffered by the plaintiff reasonably foreseeable but are there public policy reasons not to impose legal liability
40
Q

Damages

A

-Plaintiff must prove that they suffered damages
Compensatory Damages:
to try and put the plaintiff in a similar position:
physical
psychological: recoverable if associated with physical
economic: recoverable if reasonable foreseeable
-Contributory Negligence may reduce the amount of damages awarded: judges may portion liability
-Punitive Damages: to punish tortfeasor

41
Q

Donoghue v. Stevenson

A
  • Landmark case for consumer actions and protection
  • Neighbor Principle extended
  • Lord Atkin: owe duty to neighbour that can be injured if you can foresee it
  • Ratio: a manufacturer of products is liable, regardless of the chain, it is reasonable to assume that the consumer can be injured
42
Q

Defenses to Negligence

A
  • Onus on defendant
  • Contributory Negligence: not complete defense, only portions liability
  • Material Contribution Test Mathews v. Mclaren
  • Consent: voluntary assumption of risk
  • Illegality
  • Lack of capacity
43
Q

Strict Liability Torts

A

EVEN IF ACTIONS NOT INTENTIONALLY NEGLIGENT

  • Nuisance: interference with an occupiers interest in the beneficial use of his land
  • Interference: substantial and unreasonable annoyance or discomfort, social utility of the defendants conduct, abnormal sensitivity of plaintiff
  • Occupiers Interest: quiet possession- includes renters, leaseholders and condo
  • Beneficial Use: enjoyment, economic interests
44
Q

Rylands v. Fletcher

A
  • strict liability for the escape of animals or dangerous substances
  • reasonable care is no defense but must still prove damages
45
Q

Occupier and Vicarious Liability

A
  • Occupiers Liability: liability of occupiers of land for injuries that entrants sustain while on property in increasing level of care: trespasser, licensee, invitee, contractual entrant
  • Vicarious Liability: liability of one party for the fault o another due to special relationship between them ex) employee, employer
46
Q

Defamation

A
  • Published allegation of impropriety that injure a person’s reputation
  • Libel: written, Slander: oral
  • Justification: truth is a defence
47
Q

Three Property Rights

A
  1. Real: land including the surface, subsurface and airspace
  2. Personal: chattels which are tangible and not affixed to land
  3. Intellectual: intangibles- ideas, inventions, creative works
48
Q

Property Rights are

A

NOT PROTECTED BY THE CHARTER OF RIGHTS AND FREEDOMS (CONSTITUTION)

49
Q

Types of Property Rights

A
  1. Possession Rights
  2. Use Rights
  3. Alien ability Rights: right to grant right to someone else
  4. Reversionary Rights: property reverts to ‘owner’ after someone else has used it

Ownership tends to imply 3 & 4, these rights can also be subdivided

50
Q

Title

A

-description of rights held regarding that property

51
Q

Real Property

A
  • Crown has underlying title to all land in Canada
  • stems from declaration of sovereignty
  • subject to existing First Nations rights and titles
  • crown can grant certain estates (bundle of rights) to people
52
Q

Freehold Estate

A
  • most complete set of rights that can be granted
  • includes rights of possession, use and alienability
  • freehold owners can sell, lease, encumber, bequeth
  • minerals, oil and gas usually reserved for the crown today
  • reversionary rights revert to the crown if not alienated
  • can be expropriated by crown for public purposes
53
Q

Leasehold Estate

A
  • leasehold of crown land or of freehold land
  • includes rights of possession and use but limited alienability
  • can sublease or otherwise encumber during the term only
  • leasehold can be surface or subsurface
  • estates reverts to the crown at end of term of lease
54
Q

Constitutional Basis for Real Property: Provincial

A
  • Provincial government has jurisdiction in the management and sale of public lands belonging to the province
  • Property and civil rights
  • Exclusively for non-renewable natural resources
55
Q

Provincial Legislation for Real Property

A
  • Public Lands Act
  • Land Titles Act
  • Mines and Minerals Act
  • Oil and Gas Act
  • Water Act
56
Q

Constitutional Basis for Real Property: Federal

A
  • Preamble: Peace, Order & Good government of Canada
  • Indians and Lands Reserved for Indians
  • Seacoast and Inland Fisheries
57
Q

Federal Legislation for Real Property

A
  • Homestead Act
  • Northwest Territories Act
  • National Parks Act
  • Offshore Resources Act
58
Q

Crown Lands

A
  • Most of the land in AB- minerals reserved
  • Provincial government (fed in territories) can grant various land rights: surface, subsurface, subsurface where surface is freehold, water rights
59
Q

Surface Rights

A
  • surface leases, timer licences, razing, right of way, sand and gravel
  • administered by Alberta Environment and Sustainable Resource Development
60
Q

Subsurface Rights

A
  • mineral rights, mines and minerals, royalties go to crown
  • oil and gas- Alberta Energy
  • Often have conflicting subsurface rights ex) gas v.s oil
  • Oil and Gas are fluid- “Rule of Capture” modified by statute
61
Q

Subsurface Rights (Where Surface is Freehold)

A
  • holder of the mineral rights negotiates access with the owner of surface freehold
  • if unable to agree, can seek resolution from the Surface Rights Board
62
Q

Water Rights

A
  • all water, riverbeds, lake beds are owned by the province- Water Act
  • Water license to divert and use water
  • Water is free, we only pay for treatment and distribution
63
Q

Types of Freehold Interests

A
  • Sole Tenancy: one person (includes corporations)
  • Joint Tenants: two or more people- right of survivor-ship
  • Tenants in Common: two or more people with no right of survivorship, can own different amounts and different times
64
Q

Other Registered Encumbrances

A
  • Lease: quiet possession and use rights
  • Mortgage: reversionary interest if mortgage payments not paid (foreclosure)
  • Right of Way/Easement: limited use rights for particular purposes
  • Caveat: notice of another interest in the land agreement for sale
65
Q

Nemo dat qui non habet

A

-Can’t grant what you don’t have

66
Q

Torrens System

A
  • Used to have to prove the Chain of Title from the original crown grant
  • Basis for the Alberta Land Titles Act
    1. Mirror Principle
    2. Curtain Principle
    3. Insurance Principle
67
Q

Mirror Principle

A

-the certificate of Title reflects the accurate state of the title for that land. a title is free of any adverse claims or encumbrances unless they are listed

68
Q

Curtain Principle

A
  • the certificate of Title contains all the relevant information
  • a historical search to verify that a title is good is unnecessary
69
Q

Insurance Principle

A
  • The registrar compensates people for loss of rights due to faulty registration
  • an assurance fund has been established from registration fees
70
Q

Acquisition of Property Rights in Chattels

A
  • MAKE, BUILD, CREATE, HARVEST
  • Finders/Keepers subject to legal owners rights: Rule of Capture
  • Buy/Barter otherwise acquire by agreement with others
71
Q

Types of Property Rights in Chattels

A
  • Exclusive Possession
  • Exclusive Use
  • Alienability Rights- can sell, lease, bequeth and encumber
  • Reversionary Rights- possession and use rights return to owner
72
Q

Ownership

A
  • can involve all rights but owners can grant possession and use rights to others
  • lessees usually do not acquire alienability of reversionary rights
  • owners usually bear the risk of loss unless the risk is explicitly passed to the third party
73
Q

Possession RIghts

A
  • Criminal law- theft- Criminal Code
  • Tort Law- Unlawful Conversion of property
  • Need to identify your personal property
  • Lessees have right of quiet possession against owner
74
Q

Use Rights

A
  • Use rights usually go with possession but not necessarily
  • sold goods but not yet delivered- S 26 Sale of Goods Act
  • Law of Bailment- baillee possesses goods in safekeeping for another
  • Law of Carriers- Carrier must keep them safe and deliver them
75
Q

Reversionary Rights

A
  • Lessor has reversionary rights at end of lease or upon non-payment
  • Chattel Mortgage has reversionary rights upon non-payment
  • Can be registered under the Personal Property Security Act
76
Q

Alienability Rights

A
  • Applicability of Contract Law

- Title Documents- evidence of ownership, lawful possession

77
Q

Transfer of Property Rights- Sale of Goods Act

A
  • S 19 When the parties intend to transfer based on circumstances
  • S 20 Rules for Ascertaining attention
  • S 22 Risk of loss or damage is transferred with property rights
  • S 23 Cannot transfer what you don’t have
  • S 25 Property transferred when delivered
78
Q

Unpaid Sellers Rights- Sale of Goods Act

A
  • S 38 Definition from unpaid seller
  • S 39, S 40 lien, right to retain and sell even if the title has transferred
  • S 39, S 43, S44 right to stop goods in transit
79
Q

Intellectual Property

A

-intangible property, ideas, inventions, creative works, brands, franchises

80
Q

Social Policy Objectives of Intellectual Property Protection

A
  • these need to be protected so that those that put the effort in to developing these valuable assets are appropriately rewarded
  • Encourages sharing of ideas once the idea is protected
81
Q

Constitutional Basis for Intellectual Property Protection

A
  • Federal responsibility
  • Section 91- Patents of Invention and Discovery
  • Section 91- Copyrights
82
Q

Federal Legislation

A
  • Patent Act
  • Trademark Act
  • Copyright Act
83
Q

Patents

A
  • Scientific
  • Protects up to 20 years
  • In exchange for sharing- describing and filing your invention
84
Q

Additional Business Intellectual Property

A
  • Trademarks: symbols associated with business
  • Franchises: rights to sell, supply and markets
  • Goodwill: value of company beyond asset value- arises from takeovers
85
Q

Copyright

A
  • Creative
  • protects from being copied
  • exists in common law
  • Lifetime +50
86
Q

Business Law Contracts

A
  • Procurement of Goods and Services
  • Sales contracts- Consumer Law
  • Creditors Rights
87
Q

Business Law Employment

A
  • Labour relations

- Human rights

88
Q

Business Law Administrative

A
  • Regulatory Law
  • Environmental Law
  • Development Lae
89
Q

Business Law Corporate

A
  • Corporate governance
  • Tax law
  • Securities law- finance
  • Mergers and acquisitions
90
Q

Sole Proprietorship

A
  • Single owner with no separation between the business and the owner
  • Still need a business license
  • Owner is liable for the business
  • Owner pays taxes personally on business profits
91
Q

Partnerships

A
  • Two or more owners, no separation between business and the owners
  • Each partner pays taxes personally on his or her share of the business profits
92
Q

Corporation

A
  • One or more owners who hold shares of the company
  • Company is incorporated as a separate legal entity, a person in law
  • Corporation and share holders are separated
  • No personal liability but complex and costly

Law and Society (4 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions