LWSO 203- Final Exam 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
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
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
4
Q
List of Major Steps in Civil Action
A
- Initiate Proceedings
- Exchange Pleadings
- Discovery
- Trial
- Enforcing Judgement
- Appeals
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)
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
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
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
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
10
Q
Appeals
A
- Alberta Court of Appeal
- SCC with leave
- On question of law not fact
- factum- document of clear concise argument
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
12
Q
Definition of a Contract
A
-A legally enforceable exchange of promises
13
Q
Source of Contract Law
A
-Mostly common law, some statues to fill in gaps or modify common law
14
Q
Requirements for a Contract
A
- Concensus ad Idem- offer and acceptance
- Consideration
- Certainty of Key Terms
- Intention to Create Legal Relations
- Formalities
** FORMED AT TIME OF ACCEPTANCE**
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
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
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
18
Q
Contra Preferendum Rule
A
-Contract interpreted strictly against the party who drafts it especially if the other party is unsophisticate
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
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
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
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
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
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
25
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)
26
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
27
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
28
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
29
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
30
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
31
Strict Liability
- Release of Dangerous Substances: Ryland v. Fletcher
| - Nuisance
32
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
33
Assault and Battery
- assault: intentionally creating in another person on apprehension of harm **threat**
- battery: the least touching of another without consent **physical**
34
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
35
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
36
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
37
Duty of Care
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
Duty of Standard of Care
2. 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
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
40
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
41
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
42
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
43
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
44
Rylands v. Fletcher
- strict liability for the escape of animals or dangerous substances
- reasonable care is no defense but must still prove damages
45
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
46
Defamation
- Published allegation of impropriety that injure a person's reputation
- Libel: written, Slander: oral
- Justification: truth is a defence
47
Three Property Rights
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
Property Rights are
NOT PROTECTED BY THE CHARTER OF RIGHTS AND FREEDOMS (CONSTITUTION)
49
Types of Property Rights
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
Title
-description of rights held regarding that property
51
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
52
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
53
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
54
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
55
Provincial Legislation for Real Property
- Public Lands Act
- Land Titles Act
- Mines and Minerals Act
- Oil and Gas Act
- Water Act
56
Constitutional Basis for Real Property: Federal
- Preamble: Peace, Order & Good government of Canada
- Indians and Lands Reserved for Indians
- Seacoast and Inland Fisheries
57
Federal Legislation for Real Property
- Homestead Act
- Northwest Territories Act
- National Parks Act
- Offshore Resources Act
58
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
59
Surface Rights
- surface leases, timer licences, razing, right of way, sand and gravel
- administered by Alberta Environment and Sustainable Resource Development
60
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
61
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
62
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
63
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
64
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
65
Nemo dat qui non habet
-Can't grant what you don't have
66
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
67
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
68
Curtain Principle
- the certificate of Title contains all the relevant information
- a historical search to verify that a title is good is unnecessary
69
Insurance Principle
- The registrar compensates people for loss of rights due to faulty registration
- an assurance fund has been established from registration fees
70
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
71
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
72
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
73
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
74
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
75
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
76
Alienability Rights
- Applicability of Contract Law
| - Title Documents- evidence of ownership, lawful possession
77
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
78
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
79
Intellectual Property
-intangible property, ideas, inventions, creative works, brands, franchises
80
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
81
Constitutional Basis for Intellectual Property Protection
- Federal responsibility
- Section 91- Patents of Invention and Discovery
- Section 91- Copyrights
82
Federal Legislation
- Patent Act
- Trademark Act
- Copyright Act
83
Patents
- Scientific
- Protects up to 20 years
- In exchange for sharing- describing and filing your invention
84
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
85
Copyright
- Creative
- protects from being copied
- exists in common law
- Lifetime +50
86
Business Law Contracts
- Procurement of Goods and Services
- Sales contracts- Consumer Law
- Creditors Rights
87
Business Law Employment
- Labour relations
| - Human rights
88
Business Law Administrative
- Regulatory Law
- Environmental Law
- Development Lae
89
Business Law Corporate
- Corporate governance
- Tax law
- Securities law- finance
- Mergers and acquisitions
90
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
91
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
92
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
