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NPPE > NPPE Topic 3: Law for professional practice Part 1 > Flashcards

NPPE Topic 3: Law for professional practice Part 1 Flashcards

1
Q

Common Law vs Civil Law

A

Civil law: govt is the source of law
Common Law: judges make laws called precedent

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2
Q

Precedent

A

Ruling made by judges (laws) that determine the outcome of future cases

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3
Q

Ranks of precedent (court systems)

A

Supreme court > Provincial court of appeals > Trial Court

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4
Q

Trial Courts

A

have local jurisdiction and care about fact

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5
Q

Appeals Court

A

Have broader jurisdiction and set a more powerful precedent. They are more concerned with the process rather than case facts or evidence

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6
Q

Legislation

A

Written law by the government

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7
Q

Legislation includes: ____ and ____

A

Statutes and Regulations

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8
Q

Difference between statutes and regulations

A

statutes are government written laws
regulations are written by other parties

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9
Q

Branches within Canadian Law

A

Public law (criminal, constitutional, and administrative law) and private law (contracts and tort)

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10
Q

Criminal law

A

criminal code violations

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11
Q

In criminal law, most of the time you’re guilty when

A

You’re proven that you did the guilty act (actus reus) beyond a reasonable doubt
Did it with a guilty mind (mens rea)

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12
Q

Types of liability in criminal law

A

normal liability
strict liability
absolute liability

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13
Q

Normal liability (criminal law)

A

if you did the criminal act, the court must also prove that you did it with a mens rea (most criminal offenses)

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14
Q

Strict liability (criminal law)

A

if you did the criminal act, you’re liable unless you can prove that exercised due diligence

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15
Q

Absolute liability (criminal law)

A

if you did the criminal act, you’re liable

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16
Q

Type of liability most applicable to regulatory offenses in criminal law?

A

strict liability

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17
Q

Private law liability:

A

You’re liable in tort or contract action if there is proof you’ve done the act on the balance of probability

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18
Q

The Canadian Charter of Rights and Freedoms states that everyone has the following fundamental freedoms:

A
  1. freedom on conscience and religion
  2. Thought, belief, opinion, and expression, including freedom of the press and other media of communication
  3. freedom of peaceful assembly
  4. freedom of association
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19
Q

Laws that are not consistent with the constitution (charter of rights and freedom) are:

A

of no force of effect

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20
Q

How the constitution allows for governments to enact laws that do not comply with the charter of rights and freedoms?

A

Govt can enact laws that put reasonable limits on your charter rights as long as they can be shown as being necessary
They can override parts of the charter if they are expressing that they are doing so

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21
Q

Ways to fight a statute:

A

Argue the following:
- statute doesn’t apply to the case
- it was out of the authority of the government that enacted it
- argue that it infringes on your charter rights

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22
Q

Ways to fight a precedent:

A

Argue the following:
- factual distinctions are significant
- values have changed
- a different precedent could apply instead

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23
Q

Define contract

A

legally enforceable agreement (if you don’t do what is said in the contract - the government will make you do so)

24
Q

Elements of a contract

A
  1. Offer and acceptance
  2. mutual intent (both must have entered the contract - cannot be duress)
  3. Consideration or a seal (each person must get something out of it & if not, losing party would need to seal it)
  4. capacity (each person needs to have the ability to legally make agreements)
  5. Legality (cannot be illegal)
25
Q

What is the rule of contra proferentem

A

If a term in the contract is ambiguous, courts will interpret it against the party who wrote it

26
Q

Explicit vs implicit contract terms

A

Explicit: usually said or written
Implicit: implied

27
Q

What is breech of contract?

A

You didn’t do what you agreed to do

28
Q

Ways to breech a contract:

A
  1. It becomes clear that you can’t do what you agreed to do
  2. You didn’t do what you agreed to do or the deadline has passed
  3. You’ve announced that you’re not going to do what you agreed to do
29
Q

The person that breeches the contract owes the other party ____

A

remedy (damages)

30
Q

What are damages?

A

Money the court orders you to pay for breeching a contract

31
Q

Types of damages

A

direct damages (the other party gets what they originally paid for)
indirect damages (amount paid to recover what losses happened because of the breech)
liquidated damages (pre-agreed damages for different ways the contract could have been breeched)

32
Q

direct damages

A

the other party gets what they originally paid for

33
Q

indirect damages

A

amount paid to recover what losses happened because of the breech

34
Q

liquidated damages

A

pre-agreed damages for different ways the contract could have been breeched

35
Q

What is duty to mitigate in damages?

A

If you suffered a loss, you have a duty to minimize it (you don’t get compensated extra for failing to mitigate losses)

36
Q

Ways to discharge (end) a contract

A
  1. Performance (both parties do what they agreed to do)
  2. Agreement (both parties agree to end the contract)
  3. Express Terms (the contract has a clause that causes the contract to be discharged)
  4. Frustration (a court order can rule discharged if unexpected circumstances have changed the obligations of one of the parties)
37
Q

What is a disclaimer in a contract?

A

An exemption clause that is a term in a contract that removes or limits liability for some breech of contract

38
Q

What is a liability-limiting provision in a contract?

A

Does not totally remove your liability but it does remove some amount

39
Q

Disclaimers in contracts will hold as long as they are:

A

they are written clearly enough and are not illegal

40
Q

What is the Hadley v. Baxendale principle in damages

A

Contract damages should flow naturally from the breech (damages should be expected when agreeing tot he contract)

41
Q

What is substantial payment?

A

If you basically fulfill your contract but fail in some small part you have substantially complied with the contract. You should be paid what you were promised minus the amount required to fix the contract

42
Q

What is Quantum Meruit?

A

If you need to stop working on a contract due to some unexpected circumstance (ex: you’re injured) and there is no agreed payment on the amount of work that has been completed, the court will order a quantum meruit (amount deserved) remedy - you will get the amount deserved for the work that was done

43
Q

Three types of duress?

A

violence or imprisonment, economic, undue influence (your boss makes you purchase something off him)

44
Q

If you were under duress, you can have the contract ______

A

reupdated (cancelled)

45
Q

Do most contracts need to be written? Why?

A

No, contracts can be video, audio recording, having a witness, notes, etc.
Why? in private law, burden of proof is on the balance of probability. You don’t need that much proof to show that it is true.

46
Q

What is statute of frauds?

A

Some contracts must be in writing, these must be written: who own land and loans

47
Q

What is a gratuitous promise?

A

An agreement where one person gets no consideration and hasn’t sealed it.

48
Q

Is a gratuitous promise enforceable?

A

No

49
Q

What is estoppel?

A
  • If there is an existing contract and you gratuitously promise the other person they can bend the rules you can’t use this to trick them into breeching the contract
  • If you do this, you will be equitably stopped - stopped by the court to create a more equitable contract
50
Q

Two types of misrepresentation in contracts?

A
  • Innocent Misrepresentation: person making the statement believes it but are wrong
  • Fraudulent Misrepresentation: person making the statement knows it’s false or couldn’t care less
51
Q

What re the remedies if you have been misrepresented to?

A
  • have the contract rescinded
  • be compensated for your damages
  • sue for tort of deceit
52
Q

Three things required to be liable in tort:

A
  • you owe someone a duty of care
  • you breech this duty
  • someone suffers a loss/injury as a result of your breech
53
Q

The fundamental purpose of tort law is:

A

to compensate victims

54
Q

What is a limitation period in tort

A

How long after a breech you can still sue

55
Q

What is the limitation period in tort in Canada?

A

The earlier of:
- Ultimate liability period (15 years from when the act was performed)
- Discoverability concept (2 years from when a reasonable person would have discovered the mistake)

56
Q

Other types of torts:

A

trespassing, tort of nuisance, tort of deformation, duty to warn, products liability

NPPE (8 decks)

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