midterm 1 Flashcards

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1
Q

Substantive Law

A

The rights and rules that govern behavior and set limits on conduct

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2
Q

Procedural Law

A

Determines how Substantive Laws will be enforced

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3
Q

Public Law

A

Includes Constitutional Law, Criminal Law, Administrative Law and determines how country is governed and regulates our relationship with government.

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4
Q

Private Law

A

Governs personal, social and business relationships
Includes tort law, business law, and contract law
also referred to as civil law

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5
Q

Stare Decisis

A

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

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6
Q

Law of equity

A

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

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7
Q

Statute Law

A

The body of principles and rules of law laid down in statutes

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8
Q

Paramountcy

A

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

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9
Q

Purpose of tribunals

A

Specialized courts
provide faster less expensive and more informal process to solve disputes between people

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10
Q

Alternative Dispute Resolution (ADR)

A

Negotiation - Mediation - Arbitration

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11
Q

Advantages of ADR

A

-Parties to dispute maintain control of the solution
-Fewer meetings
-Less distraction
-Lower cost
-Less adverse judgements
-Preserves good will

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12
Q

Disadvantage of ADR

A

-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

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13
Q

Negotiation

A

-First step in to solve disagreement
-Discuss issue to find solution between parties
-Cooperation and compromise is needed
-Could use representative
-could enhance relationship

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14
Q

Mediation

A

-Neutral third party helps to settle dispute
-Very common
-Helps find common ground
-Encourages compromises

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15
Q

Disadvantage of mediation

A

-Parties must be willing to disclose information
-When power is imbalanced, mediation may just exacerbate the weakness of on party

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16
Q

Arbitration

A

-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

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17
Q

Civil Matters

A

-Two private persons use the court as a referee to adjudicate a dispute
-Decide the matter on the balance of probabilities

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18
Q

Criminal Proceedings

A

-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

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19
Q

Remedies

A

-Damages

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20
Q

General remedies

A

-Pain and suffering or for future lost wages

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21
Q

Special Remedies

A

Reimburse the litigant for expenses or cost incurred before trial - Ex. Medical expenses

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22
Q

Punitive Remedies

A

Not to compensate the victim but rather to punish the wrongdoer - Ex. Prolonging litigation, abusing court process

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23
Q

Class Action

A

-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

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24
Q

Common Law Legal system

A

-Function of the royal court was to be impartial and enforce customs and traditions already in place
-Uses stare decisis

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25
Q

Civil Law Legal System

A

-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

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26
Q

Trial

A

-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

27
Q

Types of Business Organization

A

-Sole Proprietorship
-Partnership
-Corporation

28
Q

Sole Proprietorship

A

-Must adhere to licensing and governing laws
-Unlimited liability for financial obligations

29
Q

Partnership

A

-A group of people carrying on business together with the object of making profit
-Not a separate legal entity
-Partnership agreement
-Partnership liability

30
Q

What dose not create a partnership?

A

-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

31
Q

How could a partnership start?

A

-Joint contribution of capital to establish a business
-Intention to share expense, profit, or losses
-Joint participation in the management of a business
-Contract

32
Q

Fiduciary Duty

A

-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

33
Q

Unlimited Liability

A

-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

34
Q

Dissolution of Partnership

A

-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

35
Q

Joint Ventures

A

-Joint venture occurs when two or more individuals or corporations wish to cooperate in completing a project together

36
Q

Agency Relationship

A

-Agents represent and act on behalf of a principle in dealing with third parties
-Principal vicariously liable for agents acts

37
Q

The Agents Liabilities

A

-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

38
Q

Corporation

A

-Separate Legal entity
-Has shareholders
-Limited liability for shareholders

39
Q

Pros of Corporation

A

-Limited Liability
-Taxes
-Succession of Transferability
-Obligations of the participants
-Management

40
Q

Cons of Corporation

A

-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

41
Q

Termination of Corporation

A

-may be voluntary or involuntary
-voluntary process called winding up
-involuntary through bankruptcy or neglecting to file annual return

42
Q

Intellectual Property

A

-a subcategory of intangible personal property referring to ideas, information, and creative works

43
Q

Purpose of law for IPs

A

-Protect the product of mental effort
-Encourage the free flow of new ideas

44
Q

Five types of IPs

A

-Copyright
-Patents
-Trademarks
-Industrial Design
-Integrated Circuit Topogrpahy

45
Q

Copyright

A

-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

46
Q

Copyright Infringement

A

-Benefiting from sale reproduction, distribution, or other commercial use of the work
-Plagiarism
-Someone else asserting authorship

47
Q

Patents

A

-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

48
Q

What qualifies you for a patent?

A

-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

49
Q

What cannot be patentable?

A

-Scientific principles or abstract theories
-Products designed for illegal purposes
-Computer Programs (Canada)

50
Q

Trademarks

A

-Protect terms, symbols, design, sounds or colors that identify a productor company and distinguishes it from a competitor

51
Q

Industrial designs

A

-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

52
Q

Integrated Circuit Topography

A

-Protects 3-D design
-Registration protects for 10 years

53
Q

Fixtures

A

-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

54
Q

Chattels

A

-Personal property that is not land and included in the sale unless expressly included in the APS

55
Q

Estates in Land

A

the right to of possession to land granted by the crown

56
Q

Condominiums

A

-Own a unit, share ownership of common elements
-Common elements - lobbies, hallways, elevators, amenities
-Become a member of the condominium corporation

57
Q

What are the 3 mortgage Defaults?

A

-Contractual Power of Sale
-Judicial Sale
-Foreclosure

58
Q

Contractual Power of Sale

A

-mortgage documents that contain the provisions for the power of sale

59
Q

Judicial Sale

A

the lender is the plaintiff, who wants a decision against the owner who is in foreclosure

60
Q

Foreclosure

A

the action of taking possession of a mortgaged property when the mortgagor fails to keep up their mortgage payments

61
Q

Finders Keepers

A

-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

62
Q

Termination of Lease - Tenant

A

-landlord and tenant have agreed to terminate
-Tenant has experienced violence
-if LTB has issued an order for termination

63
Q

Termination of Lease - Landlord

A

-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