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COMM 304 - BL > Session 1 > Flashcards

Session 1 Flashcards

The Canadian Legal System

1
Q

Law

A

Determines the rights, freedoms and obligations of participants in society.

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2
Q

True or False: The law represents society’s past values and beliefs.

A

False

The law represents the values and beliefs of a society at a given point in time.

(The law tends to change slower than society’s values, but this is the idea)

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3
Q

3 Main Roles of Law

A
  1. Establish rules of conduct in society
  2. Disputes settlement
  3. Protect the individual/business
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4
Q

Ways to Manage Legal Business Risks

A
  • Risk Avoidance
  • Risk Reduction
  • Risk Transfer
  • Risk Retention
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5
Q

How does law affect behaviours?

A

The law defines what behaviour is prohibited.

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6
Q

What would happen without the law (and its consequences)?

A

If there are no consequences, people will do what they want.

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7
Q

Example of the law affecting society in different countries:

A

In Germany there is no speed limit, there are more accidents there than in Canada.

People do not risk fines and other punishments for driving too fast, so they will drive whichever speed they want.

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8
Q

Risk Avoidance Example

A

Not going into business with a risky partner.

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9
Q

Risk Transfer Example

A

Passing the risk onto others, such as insurance.

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10
Q

Risk Reduction Example

A

Fully train employees to minimize injury.

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11
Q

Risk Retention Example

A

Planning to say “if something goes wrong I can deal with the worst case”.

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12
Q

Upon which law is common law based?

A

English Law

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13
Q

Where is Common Law found?

A

Ireland, UK, US, Canada, and Australia.

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14
Q

What are sources of law for common law?

A
  • Past cases
  • Statutes
  • Codes
  • Acts and accompanying regulations
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15
Q

What is the most important concept of common law?

A

Precedent

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16
Q

What law is civil law based on?

A

Roman Law

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17
Q

In which countries is civil law found?

A
  • France
  • Italy
  • Germany
  • Spain
  • And Quebec
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18
Q

What are sources of law in civil law?

A
  • Statutes
  • Codes
  • Acts and accompanying regulations
    (not past cases)
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19
Q

Does precedent apply in civil law?

A

No

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20
Q

What is “stare decisis”?

A

To stand by a previous decision.

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21
Q

Precedent

A

A judgment or decision of a court that is cited in a subsequent dispute as an example or analogy to justify deciding a similar case or point of law in the same manner.

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22
Q

True or false: a new law can overrule an older law.

A

True

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23
Q

True or false: precedent works from both top down and bottom up.

A

False: precedent only works from top down. Not the opposite.

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24
Q

True or false: precedent is interprovincial.

A

False: it is not interprovincial, but provinces can consider decisions in other provinces if they wish.

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25
What is the order (top down) of Sasks legal levels (for precedent).
Top: Supreme Court of Canada Next: SK Court of Appeal Last: SK Court of King's Bench AND SK Provincial Court.
26
3 Sources of Law
- Common Law - Equity - Statute Law
27
Common Law
Case law developed by judges.
28
How does common law change?
Slow to change, but offers flexibility to adapt to new situations.
29
When was common law developed?
Common law and case law were developed over centuries.
30
What parts of law does contract law cover?
- Contract law - Tort law - The law of restitution
31
To whom does common law apply?
It applies to all businesses and industries (and people).
32
Equity
A body of law which existed in England parallel to common law. Provides legal remedies when common law is not fair or adequate
33
Are there equity courts in Canada today?
There are no more courts of equity in Canada today, but equitable concepts still exist.
34
What is statute law comprised of?
Acts, statutes, and regulations.
35
Statute Law
Laws enacted by parliament/legislative assemblies. They cover a very wide range of topics.
36
To what does statute law apply?
It applies to specific circumstances it aims to regulate and will be strictly interpreted by courts/tribunals.
37
True or false: Statute law can be enacted quickly and easily amended.
True
38
What are the 2 major classifications of law?
1. Substantive law 2. Procedural law
39
What can private law sometimes be called?
Private law is sometimes called Civil Law, but not as Civil Law systems. We call it private law to avoid confusion.
40
Substantive Law
Body of law that establishes rights and obligations of individuals/businesses.
41
Procedural Law
Body of law that establishes how a substantive right is enforced.
42
Private Law
Body of law regulating the relationship between individuals/businesses.
43
Public Law
Body of law regulating the relationship between individuals/businesses and the state/government.
44
True or false: IP and bankruptcy are provincially regulated.
False: IP and bankruptcy are federally regulated.
45
Is the Canadian Charter of Rights and Freedoms part of the constitution?
Yes
46
What does the Canadian Charter of Rights and Freedom do?
It sets out basic rights and freedoms for all Canadians regulating the citizen-state relationship.
47
To what does the Charter of Rights and Freedoms apply?
It applies to acts of government only.
48
True or false: laws and regulations need to be in compliance with the charter.
True
49
True or false: the Canadian Charter of Rights and Freedoms applies to actions between private people and businesses.
False: it does not apply to actions between private people and businesses.
50
Does the Canadian Charter of Rights and Freedoms include the right to own property?
No, unlike charters in other countries, such as the US and Germany, the Canadian one does not include a right to own property.
51
List the 3 Charter Rights most relevant in the business context:
1. Fundamental Freedoms (section 2) 2. Mobility Rights (section 6) 3. Equality Rights (section 15)
52
True or false: the charter protects people from one another.
False: the charter protects people against the state/government, it is not to protect us from each other.
53
True or false: the charter does not allow discrimination based on sexual orientation.
The Charter does not mention sexual orientation, but laws have evolved to disallow discrimination on this basis.
54
True or false: municipal governments can make laws.
False: federal and provincial governments can only make law, municipal cannot. They may only make bilaws with authorization from the provincial government.
55
True or false: the federal government has risidual power over matters not expressly given to the provinces.
True
56
List 3 examples of exclusive federal jurisdiction.
- Currency and banking - International trade and interprovincial trade - Shipping - Intellectual property - Bankruptcy and insolvency - Postal services
57
List 3 examples of exclusive provincial jurisdiction.
- Laws on property and civil rights - Local trade and commerce - Provincial incorporation of companies - Education and schools - Municipalities - Hospitals and prisons
58
Concurrent Jurisdiction
Both levels of government have law-making power on a given subject matter. This can lead to conflicting laws.
59
True or false: if there is concurrent jurisdiction and conflict arises the federal government prevails.
True
60
Jurisdiction
The power of a court to hear a case.
61
Plaintiff
Brings the law suit.
62
Defendant
The one being sued.
63
Damages
The monetary compensation awarded.
64
Pecuniary Damages
Compensate the person done wrong.
65
Non-pecuniary damages
To punish the wrong doer.
66
Specific Performance
A remedy that's available when damages aren't adequate. A court order that requires a party to fulfill their contractual obligations.
67
Administrative Tribunals (AT)
Specialized government agencies with quasi-judicial decision-making powers on very a very wide range of topics.
68
True or false: AT are set up under federal or provincial legisation.
True
69
True or false: AT only have decision-making power.
False: Apart from decision-making power, they may also have regulatory and licensing functions.
70
How do proceedings before AT differ from court proceedings?
- Less formal - More flexible - Binding decisions, but not made by judges - Limited jurisdiction - No strict application of the stare decisis rule - Rules on evidence are more relaxed than in court hearings
71
Does AT use use precedent?
AT is not legally bound to use precedent, but they do consider it in some cases.
72
Alternative Dispute Resolution (ADR)
A means of dispute settlement agreed upon by the parties outside the court system.
73
Is ADR voluntary?
Yes, ADR is voluntary, you cannot force ADR on a party.
74
What are the 4 different forms of ADR?
- Negotiation - Mediation - Arbitration - Conciliation
75
Why are there different forms of ADR?
The different forms of ADR are for different types of disputes.
76
How does an ADR affect a brand's reputation?
Court decisions are public, as a business you may not want your disputes to be public.
77
What are reasons for parties opting for ADR are?
- Speed - Flexibility and control over proceedings - Confidentiality - Costs - Choice of forum/adjudicators - More suitable to retain long-term relationship - Solution-oriented/effective results - Limited/no appeal
77
True or false: ADR is cheaper than court preceedings in international issues.
For international issues ADR is usually more expensive, but domestically it is cheaper.
77
True or false: ADR can help preserve relationships.
True: court proceedings often end a relationship.
78
What are the types of mediation?
- Evaluative - Facilitative - Transformative
79
Mediation
Involves a third party (mediator) to assist parties in settling their dispute.
80
Is there such thing as mandatory mediation?
Yes, mandatory mediation applies in some civil court proceedings prior to trial.
81
Arbitration
One or more arbitrators deciding the dispute for the parties by issuing s binding arbitration award.
82
True or false: commercial arbitration is voluntary.
True
83
True or false: labour arbitration is voluntary.
False: labour arbitration is mandatory.
84
True or false: an arbitrator can reinstate an employee as well as grant damages (in union cases).
True
85
ICC
International Chamber of Commerce (Paris)

COMM 304 - BL (10 decks)

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