LWSO 203- Final Exam Flashcards
How is Civil Law Defined
- Private law governs the relationships between persons
- Persons being defined as individuals, corporations and governments in their civil capacity
Constitutional Basis for Civil Law
- Civil procedure is a provincial jurisdiction (Section 92)
- “Administration of justice including procedure in civil matters”
- Depends on the province
Sources of Civil Procedure
- Embedded in various statues
- Most contained in the Rules of Court written and adopted by the court itself
- Common law can also be cited
List of Major Steps in Civil Action
- Initiate Proceedings
- Exchange Pleadings
- Discovery
- Trial
- Enforcing Judgement
- Appeals
Initiate Proceedings
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)
Exchange Pleadings
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
Discovery
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
Trial
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
Enforcing Judgement
- 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
Appeals
- Alberta Court of Appeal
- SCC with leave
- On question of law not fact
- factum- document of clear concise argument
Alternative Dispute Resolution
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
Definition of a Contract
-A legally enforceable exchange of promises
Source of Contract Law
-Mostly common law, some statues to fill in gaps or modify common law
Requirements for a Contract
- Concensus ad Idem- offer and acceptance
- Consideration
- Certainty of Key Terms
- Intention to Create Legal Relations
- Formalities
** FORMED AT TIME OF ACCEPTANCE**
Consensus ad Idem
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
Consideration
- 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
Certainty of Key Terms
- 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
Contra Preferendum Rule
-Contract interpreted strictly against the party who drafts it especially if the other party is unsophisticate
Intention to Create Legal Relations
- 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
Enforcement of a Contract
- 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
Remedies for a Breach
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
Carilil v. Carbolic Smoke Ball Company
-Ratio Decidendi: exception to notification of acceptance if the offeror makes clear that performance is enough. unilateral contract
General Forms of Contracts
- Unilateral v.s Bilateral
- Unilateral: act is acceptance
- Bilateral: binding as soon as it is accepted, even if performance hasn’t occurred yet
Rescission and Rectification- Contract Remedies
- Rescission: contract is cancelled and the parties are returned to their state before the contract
- Rectification: contract rewritten to correct mistake
Individual Contracts of Employment
- 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)
Collective Agreements (Employment Contracts)
- 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
Sale of Goods Act
- 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
Tort Law
- 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
Intentional Torts
-Trespass- To land; Chattels
-Assault & Battery
-False Imprisonment
-Defamation- slander and libel
-Deceit, Fraud, Misrepresentation
Defenses: consent, self-defense, legal authority, lack of capacity
Negligence
- 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
Strict Liability
- Release of Dangerous Substances: Ryland v. Fletcher
- Nuisance
Trespass
- 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
Assault and Battery
- assault: intentionally creating in another person on apprehension of harm threat
- battery: the least touching of another without consent physical
False Imprisonment
- 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
Defamation
- 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
Misrepresentation
- 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
Duty of Care
- 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
Duty of Standard of Care
- 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
Causation
- 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
Damages
-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
Donoghue v. Stevenson
- 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
Defenses to Negligence
- 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
Strict Liability Torts
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
Rylands v. Fletcher
- strict liability for the escape of animals or dangerous substances
- reasonable care is no defense but must still prove damages
Occupier and Vicarious Liability
- 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
Defamation
- Published allegation of impropriety that injure a person’s reputation
- Libel: written, Slander: oral
- Justification: truth is a defence
Three Property Rights
- Real: land including the surface, subsurface and airspace
- Personal: chattels which are tangible and not affixed to land
- Intellectual: intangibles- ideas, inventions, creative works
Property Rights are
NOT PROTECTED BY THE CHARTER OF RIGHTS AND FREEDOMS (CONSTITUTION)
Types of Property Rights
- Possession Rights
- Use Rights
- Alien ability Rights: right to grant right to someone else
- Reversionary Rights: property reverts to ‘owner’ after someone else has used it
Ownership tends to imply 3 & 4, these rights can also be subdivided
Title
-description of rights held regarding that property
Real Property
- 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
Freehold Estate
- 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
Leasehold Estate
- 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
Constitutional Basis for Real Property: Provincial
- 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
Provincial Legislation for Real Property
- Public Lands Act
- Land Titles Act
- Mines and Minerals Act
- Oil and Gas Act
- Water Act
Constitutional Basis for Real Property: Federal
- Preamble: Peace, Order & Good government of Canada
- Indians and Lands Reserved for Indians
- Seacoast and Inland Fisheries
Federal Legislation for Real Property
- Homestead Act
- Northwest Territories Act
- National Parks Act
- Offshore Resources Act
Crown Lands
- 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
Surface Rights
- surface leases, timer licences, razing, right of way, sand and gravel
- administered by Alberta Environment and Sustainable Resource Development
Subsurface Rights
- 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
Subsurface Rights (Where Surface is Freehold)
- 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
Water Rights
- 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
Types of Freehold Interests
- 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
Other Registered Encumbrances
- 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
Nemo dat qui non habet
-Can’t grant what you don’t have
Torrens System
- 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
Mirror Principle
-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
Curtain Principle
- the certificate of Title contains all the relevant information
- a historical search to verify that a title is good is unnecessary
Insurance Principle
- The registrar compensates people for loss of rights due to faulty registration
- an assurance fund has been established from registration fees
Acquisition of Property Rights in Chattels
- MAKE, BUILD, CREATE, HARVEST
- Finders/Keepers subject to legal owners rights: Rule of Capture
- Buy/Barter otherwise acquire by agreement with others
Types of Property Rights in Chattels
- Exclusive Possession
- Exclusive Use
- Alienability Rights- can sell, lease, bequeth and encumber
- Reversionary Rights- possession and use rights return to owner
Ownership
- 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
Possession RIghts
- 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
Use Rights
- 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
Reversionary Rights
- 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
Alienability Rights
- Applicability of Contract Law
- Title Documents- evidence of ownership, lawful possession
Transfer of Property Rights- Sale of Goods Act
- 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
Unpaid Sellers Rights- Sale of Goods Act
- 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
Intellectual Property
-intangible property, ideas, inventions, creative works, brands, franchises
Social Policy Objectives of Intellectual Property Protection
- 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
Constitutional Basis for Intellectual Property Protection
- Federal responsibility
- Section 91- Patents of Invention and Discovery
- Section 91- Copyrights
Federal Legislation
- Patent Act
- Trademark Act
- Copyright Act
Patents
- Scientific
- Protects up to 20 years
- In exchange for sharing- describing and filing your invention
Additional Business Intellectual Property
- Trademarks: symbols associated with business
- Franchises: rights to sell, supply and markets
- Goodwill: value of company beyond asset value- arises from takeovers
Copyright
- Creative
- protects from being copied
- exists in common law
- Lifetime +50
Business Law Contracts
- Procurement of Goods and Services
- Sales contracts- Consumer Law
- Creditors Rights
Business Law Employment
- Labour relations
- Human rights
Business Law Administrative
- Regulatory Law
- Environmental Law
- Development Lae
Business Law Corporate
- Corporate governance
- Tax law
- Securities law- finance
- Mergers and acquisitions
Sole Proprietorship
- 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
Partnerships
- 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
Corporation
- 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
