233820865 The Law and Business Administration in Canada 13 Ed Summary Notes PDF

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Part 1 Law and Its Social and Business Context Chapter 1 Law, Society, and Business The Role of Law How Do We Define the Law? Why do we have and need law? 1. Protect persons, property, and society as a whole Prohibits conduct society believes to be harmful Prescribes rules that allow us to get on wi...

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Part 1 – Law and Its S ocial and Business Context

Chapter 1 – Law, Society, and Business The Role of Law How Do We Define the Law? Why do we have and need law? 1. Protect persons, property, and society as a whole  Prohibits conduct society believes to be harmful  Prescribes rules that allow us to get on with our everyday lives 2. Gives government the power to act for the benefit of society  Power to provide policing and other essential services and to charge taxes for these things Rule of Law

Established legal principles that treat all persons equally and that the government obeys. EXCEPTION: diplomatic immunity. Public Law

Law that regulates the conduct of the government and the relations between government and private persons.   

Regulates individuals’ interactions with each other Plan and organize affairs Bargain with others for mutual advantages

Private Law

Law that regulates the relations between private persons and groups of private persons. AKA Civil Law.  Influences and controls the behaviour of individuals and society  Empowers, influences and controls the actions of the government  Influences and controls interaction between individuals Is It Ever Right to Break the Law?    

There are times, but generally the law should be obeyed There are unjust laws  should be obeyed due to chaotic consequences if many people do not obey them. Speed limit is in place with safety in mind Endangered others to save life of her child  she would say she was justified in breaking the law given the circumstances

Is and unjust law really law? 

If it is very unjust, no one needs to abide by it

Is there a point in having laws that no one will obey? 

Laws must be rooted in the morals of society in order to be effective.

How Does Law Influence Behavior? 

Most people understand the need to comply with the law 1

Legal Liability

Responsibility for the consequences of breaking the law. 

How offensive society finds the crime determines the area of law that regulates the behavior and the types of liability it will attract

Criminal Liability

Responsibility arising from commission of an offense against the government or society as a whole. Regulatory or Quasi-Criminal Liability

Responsibility arising from breaches of less serious rules of public law, often enforced through regulatory tribunals set up by government for specific purposes. Civil Liability

Responsibility arising from a breach of private law, enforced through a lawsuit initiated by the victim. 

It is possible to attract all types of liability with one offence

Who Makes Law? The constitution Basic Law

A constitution that is habitually obeyed by the citizens of a country and that they regard as legitimate and binding.  

Created by a monarch or by the government The basic law from which all others draw their power  All other laws must comply with the constitution in order to be valid and enforceable

Legislation AKA statute law, acts Statute

A piece of legislation passed by government. 

i.

Passed by Parliament and provincial legislatures in compliance with the Canadian Constitution Subordinate Legislation

Passed under authorization of statute by a body designated in the statute, such as a cabinet or a commission Regulations

Administrative rules implemented by government as a result of authorization given in a statute. ii.

Administrative Rulings

Rulings handed down by administrative bodies created to hear complaints and applications by individuals, as outlined in legislation 2

Court Decisions Judgments handed down by judges after hearing a court case. Court Law

A collection of individual cases decided by the courts that develop and shape legal principles. 

Courts are central to law enforcement  Legislation plays small role in private disputes  Apply principles of case law developed over courts’ history to deliver decisions  In novel situations, they develop new principles  set precident

Courts and Legislation 

Courts play important role even where legislation exists  Determine if statute is valid and enforceable (based on constitution)  Decide what the statute means an is it covers the subject of a dispute

Federalism and the Constitution 

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Two distinct levels of government, each independent with own sphere of activity – under the Constitution Act of 1867  Powers divided between the two under sections 91 (federal) and 92 (provincial) If conflict arises, courts determine who has jurisdiction

Ultra Vires

Beyond the powers of the enacting government and therefore void. Residual Powers

Powers that fall within the federal jurisdiction because they are not expressly allocated to the provinces in the Constitution. 

 Usually activities developed after 1867 such as telecommunications or air traffic. Practical problems often overlap the boundaries of jurisdictions

Concurrent Powers

Overlapping powers of both levels of government to regulate the same activities.  

When conflict arises, federal legislation prevails  Need for uniformity across Canada in areas of federal jurisdiction Supreme Court of Canada plays umpire role between levels of government  Does not easily strike down legislation  Respects intent of legislatures  Only strikes down if it is inconsistent with the Constitution

The Charter of Rights and Freedoms  

Became part of the constitution in 1982 Limits aspects of government action and protects human rights

Human Rights

Recognized entitlement encompassing traditional freedoms associated with civil liberty and basic human necessities 

Property and civil rights are part of provincial responsibility 3

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 Relate to ownership of property, contract law, and family relations. Charter is entrenched in the Constitution  cannot be repealed by any ordinary act of legislatures  Amendments require consent from Parliament, legislatures from two thirds of the provinces representing at least 50% of the population of all the provinces  very difficult to change Rights in the charter cannot be infringed upon by ordinary legislation  Cannot interfere with right founded on a higher law  Supreme Court will strike down any legislation that violates the explicit rights in the Charter as per section 52 (1) of Constitution  Has read more into the Charter to prevent discrimination based on aspects not explicitly listed in the charter Section 33 allows legislature to override certain other section of the Charter  “Shall operate notwithstanding” clause allows legislation to do this  Expires after five years unless reenacted  Only do this in special circumstances  Not politically easy to override human rights because it sets bad precedent No rights in the charter are absolute  Section 1: all are subject to such reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society  Statute is usually presumed valid  Person must show that one of their guaranteed rights has been infringed upon by a provision in the statute  Statute then presumed invalid  Unless government can show that the infringement was demonstrably justified

Burden

The requirement that, unless a party can establish facts and law to prove its case, it will lose 

Charter applies to government and governmental activities  has little application between private persons  In private sector, rights are a matter of human rights codes passed by the provinces  Charter states is applies in respect of all matters within the authority of Parliament and of the legislature of each province  not extended to corporations

The Rights and Freedoms Protected by the Charter Subject to override through use of section 33: Fundamental Freedoms 2. Everyone has the right to the following fundamental freedoms: a) Freedom of conscience and religion; b) Freedom of thought, belief, opinion and expression, including freedom o the press and other media of communication; c) Freedom of peaceful assembly; and d) Freedom of association.

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Legal Rights 7) Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8) Everyone has the right to be secure against unreasonable search and seizure. 9) Everyone has the right not to be arbitrarily detained or imprisoned. 10) Everyone has the right on arrest or detention a) To be informed promptly of the reasons therefor; b) To retain and instruct counsel without delay and be informed of that right; and c) To have the validity of detention determined by way of habeas corpus and to be released if the detention is not lawful. Sections 11 – 14 deal with rights of those accused of crimes during criminal proceedings Equality Rights 15. (1)Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2)Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.  

(2) allows for reverse discrimination NOT SUBJECT TO SECTION 33: the rights and freedoms are guaranteed to men and women equally. Does (2) violate this?

Not subject to legislative override: Democratic Rights 3. Every citizen of Canada has the right to cite in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. Mobility Rights 6. (1)Every citizen has the tight to enter, remain in and leave Canada (2)Every citizen and person with the status of permanent resident has the right a. To move to and take up residence in any province; and b. To pursue the gaining of livelihood in any province. (3)The rights in (2) are subject to a. Any laws or practices if general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and b. Any laws providing reasonable residency requirements as a qualification for the receipt of publicly provided social services. (4)Subsections (2) and (3) so not preclude any law, program or activity that has its object the amelioration in a province or conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate in Canada. 5

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(4) gives affirmative action provision to give preference to local workers in areas with higher-than-average unemployment

The Significance of the Charter for Business 

Government regulates business through legislation  If it violates the Charter, it can be declared invalid

Challenging the Validity of a Statute Statute is declared invalid if:  

Subject matter is ultra vires It violates the Charter

Supreme Court must determine the purpose and effect of the statute    

Narrow interpretation  valid  Restrict meaning to small cases Broad interpretation  invalid  Take meaning in all possible ways Court may interpret it as partially out of the jurisdiction of the government  restrict application to fewer areas  legislation does not have desired effect Courts often criticized for taking too narrow of an interpretation  Avoid interference with existing civil rights

Constitutional defeat more serious than narrow interpretation.  

Defeat  constitution must be changed in order to overcome court decision Interpretation  introduce an amendment to broaden the application of the statute

Chapter 2 – The Machinery of Justice Classifying Law 

To help us understand organize and explain laws that govern us

Criminal

Torts Constitutional

Taxation

Contracts

Public Law

Property

 Business law draws from both public and private law Substantive Law

Private Law

The rights and duties each person has in society.

Procedural Law

Rules that deal with how substantive rights and duties may be enforced. 

Lawmakers designate the acceptable conduct and a way to enforce it.  Substantive: Right to own property  Procedural: How to protect property

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Legal Systems: Civil Law and Common Law Regions of the World Under Each System Two legal systems around the world: Roman Law

A system developed by Eastern Roman Emperor Justinian in the 6 th century. Civil Law

A system of law involving a comprehensive legislated code, evolved from Roman Law.    

Used in Quebec All law must be collected into a body of legislation called the civil code The code is more important than any individual case decision Always refers to code to settle a dispute

Legislation > Case Law Common Law

A case-based system of law originating in England and covering most of the English-speaking world. Based on recorded reasons given by courts for their decisions. Case Law ≥ Legislation The Need for Consistency and Predictability Like cases should be treated alike 

Judges must be influenced or concerned by previous decisions  Reduces the number of cases that go to court  The law itself must be fairly predictable

 civil law countries try to decided similar cases in similar ways even through they are not bound to do so

Common Law: The Theory of Precedent Certainty vs. Flexibility 

Consistency and predictability are the primary goal of common law judges

Theory of Precedent: follow already decided cases Stare Decisis

To stand by a previous decision. 

Not an ironclad rule  Circumstances change, so should the decisions made by the courts

Judges only bound to decisions made by a higher court.

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 Lower court decisions have influential value only  Precedent only bind the same circumstances Vagueness in these definitions allows judges to draw distinctions between situations and not follow precedents

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Distinguish

Identify factual difference that renders precedent inapplicable to the case before the court. Accommodating Change Overrule

To declare an existing precedent no longer binding or effective.  

To overrule an existing precedent, issue must be addressed by a higher court Reluctant to override decision by court at the same level  takes away from the consistency and predictability

The Sources of Law The Variety of Sources  

Courts Legislation  Government  Cabinet  Municipalities

Subordinate Legislation

Law created by administrative agencies whose authority is granted by statute in order to carry out the purposes of the legislation. Statutes Codify

Set down and summarize in a statute the existing common law rules governing a particular area of activity.  

Statutes to codify existing precedents make the law easier to access  In one bill rather than in several cases Courts often called upon to interpret a statute, whether it applies the facts of a case, and what its consequences are  Not likely to apply the provisions if the details of the case are not covered specifically

Strict Interpretation

Courts apply the provisions of a statute only where the facts of the case are covered specifically by the statute. Liberal Approach

Statutory interpretation that considers legislative intent, purpose, and history of the stature, as well as the context of the language. 

Takes into consideration the state of the law at the time of the passage and the language used when debating the bill

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Interpretation Act tells courts to take a fair, liberal and large interpretation of statutes

Legislation Framework Two main classes: passive and active 8

Passive    

Statutes that change the law  Make a formerly illegal activity legal or vice versa Provides legal framework for people to go about their business Does not propose to supervise or regulate these activities Leaves it to an injured party or enforcement official to complain and initiate court proceedings

Active Legislation  

Gives government power to carry out a program Parliament itself is not the right body to carry out the program  Agencies created through legislation execute the projects authorized by the government

Subordinate Legislation   

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Administrative agencies create new law by exercising their regulatory powers Set out broad or detailed criteria Important regulations require authorizations by the Cabinet in form of order-in-council  Agency drafts regulations and minister responsible for agency brings it forward for approval Less important regulations can be approved by the minister, head of the agency or designated officer

Case Law: Judge-Made Law The Common Law 

Case law still represents the bulk of private law, especially for contract disputes

System of Courts

The organization of courts into a hierarchy that designates the responsibilities of the court and determines the importance of the precedent. Usually has three levels: trial, appeal, and final appeal. 

Common law is based on the flow of cases from the system of courts, the decisions need to be with a recognized level of court in order to influence other judges decisions

Collection of case law precedents = common law Earliest decisions made without benefit of precedent  had to look to outside sources for direction Canon Law

Created by the Church, which had its own jurisdiction and courts in matters pertaining to itself, family law, and wills. Feudal Law

A system of land ownership rooted in sovereign ownership: exchange of land handed down from royals in exchange for military service and loyalty. Merchant Law

Rules and trade practices developed by merchants and administered by their own courts 9

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As number of precedents increased the need to draw from outside sources was reduced

Equity  

Common law system was originally very rigid Needed specific writ to have case heard by court

Writ

An ancient form required in order to take a grievance to court.  

As times changed the appropriate writs were not available, king would hear petitions, make decisions inconsistent with existing common law Kings chancellor began to take over this job

Courts of Chancery

A system of courts under the king’s chancellor and vice-chancellor developed from the hearing of petitions to the king AKA Courts of Equity  

Created exceptions to common law rules when they were too harsh, created new precedents: called principles of equity Common law remedies were too narrow (money damages only) and did not meet needs of π

Equitable Remedies

New remedies created by the courts of equity to address situations...