midterm 1 Flashcards
Substantive Law
The rights and rules that govern behavior and set limits on conduct
Procedural Law
Determines how Substantive Laws will be enforced
Public Law
Includes Constitutional Law, Criminal Law, Administrative Law and determines how country is governed and regulates our relationship with government.
Private Law
Governs personal, social and business relationships
Includes tort law, business law, and contract law
also referred to as civil law
Stare Decisis
a system where judges must follow precedent
feature of common law the decision of a judge is binding on all judges in lower courts
Allows the parties to predict the outcome of the litigation and thus avoid going to court
Following precedent can be inflexible and may not acknowledge changing social attitudes
Law of equity
Provides equitable relief/remedies when there is a recognizable right but no remedy under the common law
Allowed flexibility in decisions but also appeared arbitrary
Statute Law
The body of principles and rules of law laid down in statutes
Paramountcy
Powers of the federal and provincial governments can overlap considerably\
if they overlap incidental both laws are valid and apply
Laws truly conflict paramountcy may require that the federal legislation no longer apply
Purpose of tribunals
Specialized courts
provide faster less expensive and more informal process to solve disputes between people
Alternative Dispute Resolution (ADR)
Negotiation - Mediation - Arbitration
Advantages of ADR
-Parties to dispute maintain control of the solution
-Fewer meetings
-Less distraction
-Lower cost
-Less adverse judgements
-Preserves good will
Disadvantage of ADR
-Judicial fairness is not ensured
-Courts could extract more information
-Decisions do not follow precedent
-Resolutions may not be enforceable
-No public record of dispute or decision
Negotiation
-First step in to solve disagreement
-Discuss issue to find solution between parties
-Cooperation and compromise is needed
-Could use representative
-could enhance relationship
Mediation
-Neutral third party helps to settle dispute
-Very common
-Helps find common ground
-Encourages compromises
Disadvantage of mediation
-Parties must be willing to disclose information
-When power is imbalanced, mediation may just exacerbate the weakness of on party
Arbitration
-Third party makes a binding decision
-Very common in Employment Law
-Arbitrators may be specialist in disputes
-Decisions may not be changed but process may be reviewed by a court
-Process is faster more costly more private more formal
Civil Matters
-Two private persons use the court as a referee to adjudicate a dispute
-Decide the matter on the balance of probabilities
Criminal Proceedings
-The government pursues the matter and prosecutes the accused
-The judge or jury must be convinced beyond a reasonable doubt of the guilt of the accused
Remedies
-Damages
General remedies
-Pain and suffering or for future lost wages
Special Remedies
Reimburse the litigant for expenses or cost incurred before trial - Ex. Medical expenses
Punitive Remedies
Not to compensate the victim but rather to punish the wrongdoer - Ex. Prolonging litigation, abusing court process
Class Action
-Identifies class of persons with a common issue
-Reduces the numbers of lawsuits and avoids inconsistent results
-Lower costs for parties and court system
-Court must certify the litigation as a class and appoint a representative plaintiff
-Judgment binds every member of the class
Common Law Legal system
-Function of the royal court was to be impartial and enforce customs and traditions already in place
-Uses stare decisis
Civil Law Legal System
-a list of rules stated as broad principles of law that judges apply to the cases before them
-Prior decisions do not constitute binding precedents
Trial
-Plaintiff presents case
-Plaintiff case and witnesses are presented first
-Cross examination by defendant’s lawyer
-Plaintiff’s lawyers is prohibited from asking leading questions
Types of Business Organization
-Sole Proprietorship
-Partnership
-Corporation
Sole Proprietorship
-Must adhere to licensing and governing laws
-Unlimited liability for financial obligations
Partnership
-A group of people carrying on business together with the object of making profit
-Not a separate legal entity
-Partnership agreement
-Partnership liability
What dose not create a partnership?
-Owning property in common
-Commission selling or profit-sharing schemes
-A loan is made in relation to a business and payment of interest varies the profit
How could a partnership start?
-Joint contribution of capital to establish a business
-Intention to share expense, profit, or losses
-Joint participation in the management of a business
-Contract
Fiduciary Duty
-a partner must act in best interest of other partners
-Nit use partnership property for personal benefit
-Cannot compete with partnership
-Disclose all information and not use it for personal gain
Unlimited Liability
-Partners liability is not limited to the assets of the partnership
-Personal assets may be used to satisfy claims against partnership
-A third party can collect from any partner
-Retiring partners remain responsible for existing liabilities
Dissolution of Partnership
-Notice of intention to dissolve can bring partnership to an end or the death, bankruptcy or insolvency of a partner
-fixed term expiry of partnership
-by a court
-Public notice
Joint Ventures
-Joint venture occurs when two or more individuals or corporations wish to cooperate in completing a project together
Agency Relationship
-Agents represent and act on behalf of a principle in dealing with third parties
-Principal vicariously liable for agents acts
The Agents Liabilities
-Third party can sue the agent when agents go beyond authority
-Intentional deception on part of the agents may lead to an award of damage
Corporation
-Separate Legal entity
-Has shareholders
-Limited liability for shareholders
Pros of Corporation
-Limited Liability
-Taxes
-Succession of Transferability
-Obligations of the participants
-Management
Cons of Corporation
-Major changes in corporate structure require amendments to the incorporation documents
-Taxed on dividends and the corporation profits
-No tax write offs
-Most expensive way to operate a business
Termination of Corporation
-may be voluntary or involuntary
-voluntary process called winding up
-involuntary through bankruptcy or neglecting to file annual return
Intellectual Property
-a subcategory of intangible personal property referring to ideas, information, and creative works
Purpose of law for IPs
-Protect the product of mental effort
-Encourage the free flow of new ideas
Five types of IPs
-Copyright
-Patents
-Trademarks
-Industrial Design
-Integrated Circuit Topogrpahy
Copyright
-the monopoly to copy or reproduced a created work
-exclusive rights for artists and authors: 50 years after death
-for corporations: 50 years
-After expiry for copyright work becomes part of the public domain
Copyright Infringement
-Benefiting from sale reproduction, distribution, or other commercial use of the work
-Plagiarism
-Someone else asserting authorship
Patents
-The exclusive right to produce, market and sell or otherwise profit from a specific invention
-to qualify
>New and no one else has patent for it
>Original work of the inventor
>Unique and distinguishable
>Useful
>Possible to build on basis of improvement’s are not patentable
What qualifies you for a patent?
-to qualify
>New and no one else has patent for it
>Original work of the inventor
>Unique and distinguishable
>Useful
>Possible to build on basis of improvement’s are not patentable
What cannot be patentable?
-Scientific principles or abstract theories
-Products designed for illegal purposes
-Computer Programs (Canada)
Trademarks
-Protect terms, symbols, design, sounds or colors that identify a productor company and distinguishes it from a competitor
Industrial designs
-No legal protection against imitation unless an industrial design is registered
-Must take place within one year of publication
-Protection last 15 years
-Must be original and not a copy of existing product
Integrated Circuit Topography
-Protects 3-D design
-Registration protects for 10 years
Fixtures
-is part of the land, and is therefore included in the APS, even if not expressly stated so. Unless expressly excluded, it is part of real estate
Chattels
-Personal property that is not land and included in the sale unless expressly included in the APS
Estates in Land
the right to of possession to land granted by the crown
Condominiums
-Own a unit, share ownership of common elements
-Common elements - lobbies, hallways, elevators, amenities
-Become a member of the condominium corporation
What are the 3 mortgage Defaults?
-Contractual Power of Sale
-Judicial Sale
-Foreclosure
Contractual Power of Sale
-mortgage documents that contain the provisions for the power of sale
Judicial Sale
the lender is the plaintiff, who wants a decision against the owner who is in foreclosure
Foreclosure
the action of taking possession of a mortgaged property when the mortgagor fails to keep up their mortgage payments
Finders Keepers
-Finder gets good title against all but the original owner
-Rights depend on where item is found
-in public place - its the finder
-In private place - the owner of the place
-Finder has obligation to return found goods to proper owner it is possible to do so
Termination of Lease - Tenant
-landlord and tenant have agreed to terminate
-Tenant has experienced violence
-if LTB has issued an order for termination
Termination of Lease - Landlord
-non payment of rent
-misrepresentation of income
-illegal acts
-causing damages
-disturbing or interfering with other tenants and landlord
-having too many people in the unit
