BLAW Midterm - Summary Business Law in Canada PDF

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BLAW 3100 BLAW CHAPTER 2- 6 MIDTERM REVIEW

CHAPTER 2 – INTRODUCTION TO THE LEGAL SYSTEM What is Law? 

Law = enforced rules created by the government or court o Disagreements o Crime committed? o Breech of Contracts?

Categories of By-Laws: 1. Substantive law – rights and limits of an individual in society 2. Procedural law – Asses the after math of substantive law governing arrest, investigation, pre-trial, & court process 3. Public law- includes Constitutional law and determines how the country is governed and regulate (ex. Charter of Rights and Freedoms) 4. Private law – Regulates personal, social and business relationships

Origins of Law

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Civil Law Legal System: o Used in Europe o Napoleonic Code o List of rules stated as broad principles of law that judges apply to the cases that come before them o People wanting to know their legal rights or obligations refer to Civil Code o Prior decisions do not constitute binding precedents in a civil law jurisdiction Quebec adopted French Civil Code o Noncriminal legal system o Resolves: private disputes in their province

L = CL + E + Stat Law = Common Law + Equity + Statues 

Common Law Legal System: o Emerges from England  Feudal system centralized power in hands of king  Royal judges became fairer to attract more litigants and broadened the authority of the state o Based on judges applying the customs and traditions of the people and then following each other’s decision o Doctrine of following precedent – judges required to look at similar cases for the principles to be added o Stare Decisis: - system of justice where judges follow each other’s decisions  Judge decision is binding on all judges in lower courts  Allows parties to predict outcome of litigation and thus avoids court  Inflexible and does not acknowledge the changing social society  Plays a role in the English common law legal system = Civil code in French system o Distinguishing the Facts – process judges use to avoid applying precedent decisions by finding the differences in the two cases if they feel it will create injustice cases.

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Statues/ Legislations o Parliamentary enactments  Takes precedence over judge-made law  Legislation overrides common law  Courts have authority to affect a statue once it is passed by the federal parliament

Sources of law 

Common law: o 3 historical English courts – theory law: 1. Court of Common Pleas 2. Court of King’s Bench 3. Exchequer Court o Can’t be based just on customs and traditions; borrow legal principles from others  Roman Civil law: - property and possessions  Canon or Church law – relations to families and estates  Law merchant – negotiable instruments (cheques and promissory notes) o Law of Equity (Court of Chancery):  Flexibility  Asking for the rules of chancery to be applied to their case  Principle in law: trust – one property holds property for another

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Statues: Legislative, Judicial and Administrative 1. Legislative branch- Government: Federal parliament and legislatures 2. Judicial branch- Government: courts and officers of courts 3. Executive branch- Prime minister, cabinet, deputy…

Constitution of Canada  Confederation – process that united British in North America (1867) o Canada except Quebec joined the confederation 

Constitution Act, 1867 – dominion of Canada, establishes its structures

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Constitution Act, 1982 – Including Charter of Rights and Freedoms

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3 elements of Canada’s Constitution: (S.C.C) o Statues o Case law o Conventions: unwritten rules stating how the government should operate and includes rule of law

Constitution and Division of Powers

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Part of Constitution Act 1867 When government claims to control a particular activity o courts act as a referee

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POGG= Peace, Order and good Government

Conflicting Powers  Ultra vires = when a government (federal or provincial) acts outside its authority under the Constitution o Courts attempt at controlling moral conduct, matter to be dealt with under criminal jurisdiction  Paramountcy = federal and provincial conflict and are valid; federal takes precedence   

Municipalities are creations of the province. Their power grows from the province, not directly from the constitution Canadian Constitution can now be amended by Canadians without needing the cooperation of the British Government Supreme court has final word on interpretation of the Constitution

Legislative Power  Canada’s Constitution requires legislation to proceed through: 1. Introduction 2. Debate 3. Modifications 4. Approval  Gains status of law after royal assent  Federal and provincial statues are compiled and published  Judges interpret and apply statues

Protection of Rights and Freedoms  Two types of legislation were made to entrust the protection of personal rights and freedoms: o Dealing with protecting human rights against abuses by the government o Protecting individuals against discrimination and intolerance by society at large Fundamental Freedoms  Freedom of conscience and religion  Freedom of thought, belief and opinion  Freedom of expression (press)  Freedom of peace assembly and association Democratic Rights  Right to vote and be elected  Reasonable limitations = restrictions to those underage or mental  Section 4 ensures there will be an election at least every five years Mobility Rights  Section 6 of Charter = right to travel and live anywhere in Canada (enter and leave) o Provincial licensing and educational requirements may create expectations Legal Rights  Section 7: right to life, liberty and security of person  Protects individuals from unreasonable interference from the government  Procedural fairness = rules of natural justice that a hearing must follow  Section 8 & 9: prohibits such activities as unreasonable search and seizure and arbitrary imprisonment Equality Rights  Section 15: prohibits discrimination in the application of the law and a general prohibition against discrimination  Federal and Provincial laws must be applied equally to all  Equality provisions are important for business people o Government-funded projects Language Rights  French and English have equal status  All federal government activities must be available in both official languages  Minority-language rights  Language Rights and minority-language educational rights cannot be overridden by section 33 of the Charter

Human Rights Legislation 

Canadian Bill of rights – o provincial and federal governments were free to interfere with civil rights through legislation o 1960 – attempted to limit authority of federal government to violate human rights o Not entrenched/ firmly established in Constitution o Effectiveness is limited

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Charter of Rights and Freedoms – guarantee of basic rights and freedoms in 1982 o Eliminates power to interfere with human rights except Constitutional amendment o Rights protect by judges rather than governments

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o Limitations on Charter rights:  Section 1: allows interference with rights and freedoms  Section 33: legislatures can pass acts that infringe on rights “notwithstanding” the Charter, but legislation must be reviewed every 5 years (sunset clause)  Section 31(1) Canadian Human Rights Act applies to abuses in sectors regulated by federal legislation o Ensure individuals have access to employment without barriers o Access to facilities, services, and accommodations also addressed o Prohibits discrimination against gender, religion, ethnic origin, race, age, and disabilities Tribunal hearings o After complaint and investigation o Can impose significant sanctions and remedies

CHAPTER 3 – RESOLUTION OF DISPUTES: COURTS AND ALTERNATIVES TO LITIGATION Alternatives to Court Action  Alternative dispute resolution – ADR = N.A.M o Negotiation o Arbitration  Third party assists  make binding decision in the matter under dispute o Mediation  Neutral third party assists  Coming to a resolution on their own 

Advantages of ADR VS. LITIGATION o Low cost o Private o Flexible o Good will o Less delays and faster resolution o Diminishes risk of other judgement

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Disadvantages of ADR VS. LITIGATION o Judicial fairness and impartiality are not ensured o Courts have more power to extract information (parties can hide certain information) o Decisions do not follow precedent o Resolutions may not be enforceable o No public record of dispute or decision

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Negotiation o 1st recourse for people with disagreements ( between the parties only) o can happen anywhere o non-binding; NO ENFORCEMENT o Requires co-operation and compromise o May enhance relationship o Concessions and admissions made without prejudice will not hurt future litigation Mediation (family disputes) o Involves a third party who helps parties come to an agreement o Mediator don’t not make decisions but makes discussions easier  Finds common ground  Encourages compromise  Should be skilled and trained in handling neutrality o Non-binding; CAN BE ENFORCED o DISADVANTAGES:  Not the process to use where blame or liability for injury must be determined  Parties must be willing to disclose info.  Power is imbalanced

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Arbitration o Parties agree on independent third party to make a binding decision o Often for resolving disputes in labor relations o Arbitrator is chosen from a pool of trained and certified professionals  Avoids bias decisions and keep confidentiality  MAKES THE DECISION BINDING!!! (LIKE LITIGATION but still private) o DISADVANTAGES:  Parties waive their right to go to court but process may be reviewed in court  More formal, costly, and time consuming than other ADR’s  Little certainty and predictability; from not referring to precedent cases

Online Disputes Resolutions (ODR)  Great for e-commerce involving small amounts of money  common Mediation and Arbitration

The Courts  Procedures vary by province  Trials are open to the public, justice must be seen to be done  All litigants have equal access to the courts  Civil matters: o two private persons use the court as a referee to adjudicate a dispute o decide the matter on the balance of probabilities (judge must be convinced beyond any reasonable doubts if the guilt of the accused)  Criminal proceedings – (can’t be any doubt) o The government pursues the matter and prosecutes the accused o The judge (or jury) must be convinced beyond a reasonable doubt of the guilt of the accused  May face both criminal trial and civil action over same conduct  Regulatory offences: o Federal: environmental, fishing and employment offences o Provincial: motor vehicles, securities o Subjects people to fines and imprisonment

Trial Courts of the Provinces  Provincial Court: o Lowest level in the Canadian court hierarchy o Have criminal jurisdiction over the less serious criminal matters o Small claims courts and family court are separated bodies but a division of provincial court system ($10,00 to $50,000)  Superior court of a province (highest trial court): o Unlimited monetary jurisdiction in civil matters and deals with serious criminal issues o Deals w/ administration of wills and estates o Bankruptcy courts operate within the superior court system

Provincial Courts of Appeal  Appellate courts hear appeals from the lower courts of the province (Provincial and Superior Courts)  An appeal court will consider a case only when questions of law are in dispute, not questions of fact  Not a new trial usually  Appeal court judges o Read the transcript of the trial as well as the trial judge’s decision o Deal with the specific objections to the trial judge’s decision submitted by the appellant’s lawyers Courts at the Federal Level  Federal Court and the Federal Court of Appeal serve a function similar to that of the provincial superior courts  Tax Court of Canada were established to hear disputes about federal tax matters  Supreme Court of Canada: o Highest court in the country o Strictly appellate function o Nine judges appointed by the Government of Canada o Decisions set binding precedent $$$ COST for Court System:  CTR – Online, up to $5,000  Provincial Court, Small Claims Division - $5,001 to $35,000 in B.C  B.C. Supreme Court- highest trial court  B.C. Court of Appeal – highest court in B.C. Process of Civil Litigation  Before a decision is made to sue, all avenues for settling should be tried (ADR)  Civil litigation = process of one party’s suing another in a private action, conducted in a trial court  Often the court requires the disputing parties to have tried these dispute resolution mechanisms before a trial procedure will be instigated

Limitations Periods  Court action must be brought within a relatively short period of time from the even giving rise to the complaint  The plaintiff must commence an action by filing the appropriate pleadings with the appropriate court  Varies depending on the jurisdiction and the nature of the complaint involved Jurisdiction  Which province or territory? o Where defendant resides or incident occurred  Location of parties is not clear over internet o Must be a connection or degree of interactivity before a local court will take jurisdiction  To avoid battles over jurisdiction, the parties should specify what jurisdiction is to apply in their contract  Must Choose what court to use o Small claims are simpler but awards are restricted  Land = decisions will take place where the land is Pre-Trial Procedures  Plaintiff = if you start it  Defendant = person you are suing  Pleadings o To start a lawsuit = Statement of Civil Claim (plaintiff) o Response/Answers to lawsuit file = Statement of Defense (defendant) o If defendants believe he is the real victim = Counterclaim/Defense to Counterclaim  Applications for directions: concern what details have to be disclosed, what questions have to be answered, etc.  Discovery 1. of documents/ records 2. examination for discovery: Verbal examination of witnesses under oath  Pre-trial conference: meeting to determine which issues remain to be tried and whether the parties can themselves resolve the dispute  Payment into court (formal offer to settle) Recent Initiatives  Reforms to speed up the litigation process, especially when smaller amounts involved o Summary trials with evidence adduced by affidavit (statement made by witness out of court but under oath)  All jurisdictions have created small claims courts with dramatically simplified procedures and reduced costs- in B.C up to $35,000

The Trial  Plaintiff presents case o Burden of proof rests with plaintiff o The plaintiff’s case and witnesses are presented first o Cross examination by defendant’s lawyer o Plaintiff’s lawyer is prohibited from asking leading questions  Rules of evidence must be followed  Defendant presents case  Summarize evidence and make argument to court Judgment  If there is a jury, the judge will instruct it on matters of law  The function of the jury is to decide questions of fact; the judge decides question of law  Judge-alone decisions may be delivered immediately; more common for judge to hand down a judgment in writing later Cost  

Litigation costs are high Judgments may award legal costs o Usually awarded to the victor but this is always at the discretion of the court

Remedies  Damages (monetary compensation) o General – not precisely calculated (ex. Car accident, depression) o Special – precisely calculated o Punitive – punish the wrongdoer (usually an action)  Other remedies: o Accounting – defendants wrong conduct paid to victim o Injunction –wanting someone to stop an offending conduct o Specific performance – breaching party that it lives up to terms of agreement o Declaration – official statement by court on the law that goes with the case Enforcement  Examination in aid of enforcement / execution  Seizure of personal property  Sale of real property  Garnishment of wages, account, depts.  Equitable receiver  Prejudgment remedies/attachment  Detain in prison? NEVER!

Seizure of Property  Execution process allows seizure and sale  Proceeds shared by creditors: o Secured creditor- security for a loan or other indebtedness o Preferred creditors – must be paid before other unsecured creditors  Ex. Landlords owes unpaid rent and employees owe unpaid wages  Necessities of life = exempt from seizure  Funds owed to a debtor can be garnished Judicial Remedies before Judgment  Extraordinary remedies granted only when there is risk that the debtor’s property will be removed from the jurisdiction o Bank accounts and other debts o Property other than money is at risk of being removed or sold  Temporary order granted by the court before the actual trial Class Actions – lawsuit where many people join together to sue because they were harmed by the same person or group (class proceedings)  Identifiable class of persons with a common issue  Avoids inconsistent results  Lower costs for parties and court system  Judgment binds every member of the class Dealing with Regulatory Bodies  Executive branch of government delegates to public administrators and regulators  Complaints against the actions of regulators and administrators are usually heard by “administrative tribunals” o Labor relations boards o Human rights commissions o Workers’ compensation boards  Advantages: o Faster o less costly o discretion o decision making panels – experts in the matter  Tribunal processes may be reviewed by courts to protect public interest Procedural Fairness in Tribunals  From where did the tribunal derive its authority?  Was the decision-making process fair?  What recourse is there has been a failure in jurisdiction or procedure? The Authority of the Decision Maker  Decision makers must be able to point to statutory authority that empowers them to make decision  Rules of statutory interpretation used to guide reading in harmony with the objective and other provisions of the stature  Statues must be passed by appropriate level of government and be complaint with Charter

The Fairness of the Process  Rules of Natural Justice set basic standard: o Fair Hearing: complainant must have notice and opportunity to be heard o Decision: must be made by persons hearing all evidence o Impartiality: no bias, or appearance of bias in decision makers  Principles of fundamental justice include procedural fairness, natural justice rules, offends our basic concepts of justice – applicable to private companies and institutions Reviewing a Decision  Judicial review: not the decision, but the process by which it was made  One of the following must be present: o Invalid statue o Decision or remedy goes beyond power set out in legislation o Errors of law on the record o Failure to follow procedural justice o Abuse of discretionary power Methods of Judicial Review  Prerogative Writs – when a public official or tribunal has breached their duty o Certiorari- nullifies a tribunal’s decision o Prohibition – prohibits a tribunal from proceeding o Mandamus – an order compelling a government to perform its duties  Declaratory Judgment – declaration of the law and providing remedies (damages or an injunction to enforce declaration)  Privative clauses may constrain judicial reviews: o Courts interpret it to apply only when the board is acting within its jurisdiction o Court retains right to interpret statutory provisions o Subject to the Charter  Challenging administrative decision may be futile and costly

CHAPTER 4 –INTENTIONAL TORTS AND TORTS IMPACTING BUSINESS The Nature of Torts  Tort: social or civil wrong that gives rise to the right to sue and to seek one of several remedies (injunction, punitive or general damages)  Tort has usually been committed when an intentional or careless act harms another...