BSEN 395 Chapter Notes - Pre-Midterm PDF

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BSEN Practice Questions: mheducation/olc/willes Chapter 1: Tort Law - Injuries to another person, property, or reputation. Contract Law - Day-to-day operations of a business. Rights – are things we can do with impunity. Others have a duty not to interfere with our rights i. Freedom of Speech. Privil...

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BSEN Practice Questions: www.mheducation.ca/olc/willes

Chapter 1: Tort Law - Injuries to another person, property, or reputation. Contract Law - Day-to-day operations of a business. Rights – are things we can do with impunity. Others have a duty not to interfere with our rights i.e. Freedom of Speech. Privilege – We earn a privilege under certain circumstances and if improperly exercised it can be taken away by the state (i.e. Driver’s License) Three Functions of the Law 1. Settling Disputes 2. Establishment of Rules – to bring order and minimize conflict 3. Protection – of one’s self, possessions, ideas. Customary Law: Authority due to religious position or community based position. Canadian law comes from England (except Quebec).. The underlying sources of modern Canadian law are: Common Law: Law as found in the recorded judgments of the courts. Case Law: The law as established by the outcome of former cases. Canon Law: Church law over family, relationships, marriage, etc. Merchant Law: Customs or rules established by merchants to resolve disputes Equity: In common law countries equity is based on a judiciary assessment of fairness. It is what is often what is considered fair and right under natural law. It is used when the laws themselves do not address an issue or are inadequate in some way. Overcomes the harshness and rigidity of the common law. Takes precedence over common law when equity and common law conflict. Statutes - Laws created by a legislative body. Debated, voted upon and passed through a strict process established to protect democratic principles. Statute (law) process: 1. Bill – proposed law presented to a legislative body (Federally also goes through Senate; not provincially) 2. Motion – decision to read a bill the first time 3. Royal Assent – granted by the Governor General or Lieutenant Governor after required readings. Required in order to become law 4. Proclaimed – when a law becomes effective.

Fed Gov’t - Bill -> 1. 3 Readings in House of Commons. 2. 3 Readings in Senate. 3. Royal Assent - Gov General. 4. Proclaimed in force. Quebec’s civil code: Influence of the French Civil Code system. Sets out private rights of citizens of the state. Administrative Law: A body of rules governing the application of statutes to activities regulated by administrative tribunals or boards. Law that governs the activities of administrative agencies of government. Regulations – procedural rules made under a statute. Administrative Tribunals – agencies created by legislation to regulate activities or do specific things. Constitution - Basis upon which a state is organized, and the powers of government defined Constitution is “The supreme law”. Federal/Prov Gov’t System. Division of Powers Section 91: Federal powers (criminal, tax, treaties, etc.) - Powers to keep Canada together. Section 92: Provincial powers (property, civil rights, establishing municipalities, etc.) - Powers to respect different identities. Residual power: All matters not expressly given to the provinces belongs to the federal gov’t. 2 Major Parts of the constitution. -Canadian Charter of Rights and Freedoms -Amending Formula Charter of Rights and Freedoms: Sets out basic rights and freedoms of all Canadians that governments are to respect Entrenched in the Constitution – difficult to change

Section 1 (Reasonable Restrictions) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 2- Fundamental Freedoms Freedom of conscience and religion Freedom of thought and expression Freedom of the press Freedom of peaceful assembly Freedom of association

Section 7 - 14 - Legal Rights Notwithstanding Clause (s.33) Permits the government to pass legislation that conflicts with or overrides charter rights by way of a “notwithstanding clause”. Sunset clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date. Substantive Law: All laws that set out the rights and duties of individuals Procedural Law: Procedures taken to enforce a substantive law Public Law: Relates to relationship between governments and persons (criminal law, tax law) Private Law: Relates to relationship between individuals (torts, contracts, employment)

Chapter 2: Jurisdiction – different courts with different jurisdictions. Right or authority of a court to hear a matter Types of Courts: Courts of Original Jurisdiction (also called trial courts): Case heard for first time. Courts of Appeal Hear appeals from trial courts Superior or higher courts Do not hear evidence Look for errors of law Federal Courts Deals with federal matters under federal government jurisdiction Admiralty, patents, tax, trademark, immigration, copyright Structure Federal Court Trial Division Federal Court of Appeal Provincial Courts Each province has authority to establish own system Variation in names and powers exist but overall similar in function Alberta Provincial Court Court of original jurisdiction Initially deals with all criminal matters Holds preliminary hearings of more serious crimes to determine if sufficient evidence exists to send it to a higher court Civil Courts: Deals with disputes that arise between people or corporations and the government.

Alberta Provincial Court (Small Claims): Hear disputes up to a certain amount of money Amount varies by each province; $50 k in Alberta Alberta Court of Queen’s Bench Hears more serious criminal matters. Hears civil disputes over and above small claims matters or those matters specifically set in the superior court Hears appeals from Small Claims Civil Courts of Appeal: Provincial Court of Appeal Hears appeals in each province from lower courts Supreme Court of Canada Highest court in Canada Hears all appeals from all courts including federal court Right to appeal is restricted, leave (permission) by the court must be granted Levels of Court (Highest to Lowest): Supreme Court of Canada -> AB Court of Appeal -> Queen’s Bench -> Provincial Court.

Family Courts (Alberta Provincial Court) Not criminal courts in the ordinary sense Deal with domestic issues Support payments, custody issues

Surrogate (Probate) Court- Queen’s Bench Deals with administration of wills and estates Criminal Court Procedure: Offence is read by crown Accused makes a plea (guilty or not guilty) Guilty plea – speak to sentence and penalty imposed Not guilty plea – hear evidence at trial and court makes a decision Precedent - Judicial Decisions interpreting law. Stare Decisis - Judges at the same level + lower level have to follow higher or same level court decisions. Pleadings Written statements prepared by parties that set out facts and claims Plaintiff – party bringing an action Defendant – party defending an action Discovery Examinations for discovery may take place to clarify points in either parties’ pleadings (purpose is to know the other sides case) Right to discovery is conditional upon delivering a list of all documents the party will rely on in trial (called an affidavit) Any question of fact relating to the issue in the action may be asked Trial (Procedure) Plaintiff opening Defendant opening Plaintiff presents evidence and calls witnesses Defendant can cross examine Defendant presents evidence and calls witnesses Plaintiff right to cross examine Parties sum up their cases Judge or jury deliberates to decide matter Ordinary Witnesses Give (direct) evidence of what they saw or heard Expert Witnesses Recognized experts on a subject and give opinion evidence Medical experts, accountants, Best Evidence Not allow “hearsay” evidence – what someone heard someone else say Can appeal to a higher court if one feels the judge erred in application of the law or admission of evidence.

Court costs and fees are awarded at the discretion of the court (typically the loser). Contingency Fees: A lawyer’s fee payable on the condition of winning the case If the lawyer does not win the case, the lawyer does not get paid Practiced in the United States Pros: allows for greater access of justice for plaintiffs who would not otherwise be able to hire a lawyer Cons: encourages frivolous litigation and compromises a lawyer’s sense of justice in the search for profit Class Actions: An action where a single person represents the interests of a group, who will share in any reward. Ex. An act that derails a passenger train and injures many people. Law Reports: If a common law principle is applied to a new or different situation, the decision of the courts in published and circulated and is called law reports. Administrative Tribunals: Boards or commissions charged with regulation of certain matters Tribunals powers set forth in statutes Limited to powers granted to them under statute Administrative tribunals regulate the radio and tv industry, telephone companies etc. Ad hoc tribunal: Tribunal established to deal with a particular dispute between parties Alternative Dispute Resolution Types: Mediation: Mediator is a third party and will move back and forth between the parties with suggestions or proposals for settlement to resolve a dispute. Arbitration: Arbitrator is selected. Each parties present their site of the dispute and the arbitrator makes a binding decision. Arbitration allows parties to take their dispute to a third party for a prompt decision, then move on with their business. Usually it is quicker and cheaper. Two main types: Commercial arbitration and labour arbitration. Attorney – a lawyer (U.S. terminology) Solicitor – a lawyer whose practice consists of preparation of documents, traditionally in England could not appear in court Barrister – a lawyer who appeared in court Canada – all lawyers are both barristers and solicitors

Chapter 7 (USE CONTRACT MAP DOCUMENT): Contract An agreement made between two or more persons that is enforceable at law Freedom of contract, the general ability of the parties to create specific rights and duties

Elements of a valid contract (must be met to be enforceable by a court of law): 1. 2. 3. 4. 5. 6.

An intention to create a legal relationship Offer Acceptance Consideration Capacity to contract Legality

In addition to the six basic elements, some contracts must also be in writing: Statute of Frauds (Chapter 10). Valid contracts must also be free of vitiating elements (Chapter 11): Mistake Misrepresentation Undue influence Duress General Rule of Contract: Meeting of the minds (consensual agreement). Consensus applies to subject and object of the contract. Latin principle: consensus ad idem Essential element of intention is a promise by and individual or entity (a “Party”). Presumptions in contract law Strangers intend to be bound by their promises Family members and close friends do not intend to be bound in contracts Both are presumptions that can be rebutted Requirement 1: Intention Intention to Contract vs. Invitation to do Business (aka “Invitation to Treat”) Presumption: Advertisements are not offers Advertising boasts generally classified as “puffery” (Advertising puffery is a legal advertising technique that uses 'puffed up' or exaggerated claims in general terms about a product or service that are a matter of opinion, or subjective, in nature. The claims can neither be proven nor disproven. For example, a company can claim they make the best blankets in the world.) Advertisements generally invite offers that seller may accept or reject. Display of goods is an invitation to do business. Once goods are purchased then the contract was made, not before.

A Party must intend to be bound by promise made.

Requirement 2: Offer A tentative promise subject to a condition An offer must be communicated to the other party to be accepted Cannot accept an offer you do not know of Example: reward situation A mere invitation to do business is not an offer to make a contract. An offer cannot be accepted by the offerent until he has first learned of it. Only person or people to whom the offer is made may accept it Rejection of an offer ends an offer. Acceptance cannot occur before an offer is made Crossed offers – Identical offers in the mail do not constitute a contract Offer needs to have 4 things to be valid: Product, Price, Parties, Performance (any important details). How long does an offer stay open. Offers will end (lapse): 1. After a reasonable amount of time. 2. At the expiry of a set time. 3. On retraction - revocation. 4. On death or insanity of offeror. Requirement 3: Acceptance A statement or act given in response to and in accordance with an offer. Acceptance must be communicated in the manner requested or implied by the offeror in the offer Can accept by words or conduct if in accordance with the terms of offer. Offeror is the master of their offer and can dictate form of acceptance If acceptance is to be by oral means Acceptance can be completed by either phone (Skype, Facetime) or direct speaking to offeror

Acceptance by post (Post Office Rule) *PROBABLY QUESTION ON EXAM* Acceptance takes place when the letter, properly addressed and postage paid, is placed in the postbox Acceptance effective where letter is placed in the postbox Governing law, unless otherwise stated, is the law of the place where the letter is posted Postal acceptance allowed even if not specifically stated if it is the normal or usual mode of acceptance Offeror can stipulate different timing that will change this default rule. All other modes Acceptance not complete until offeror made aware of acceptance Until it reaches offeror Acceptance complete when and where received E-documents are deemed to be sent when they enter a system outside of the sender’s control , or when they become capable of being retrieved and processed by the addressee E-contractors can opt out of statutory provisions in their “terms of use” Location of the transaction – determining where contract is located is more difficult on-line Ontario courts have confirmed the “I Accept” click box as creating acceptance to the terms, even if not scrolled through. Nature of Acceptance: Must be clear and unconditional Acceptance can be through conduct, statement or signature. Counter-offer is a new offer and a rejection of original offer Note: Inquiry vs. Counter-Offer. A nuance with big commercial implications Silence is not acceptance unless pre-existing agreement to this effect exists. Silence can be implied as acceptance if you stand by and accept benefit knowing that the other side expects payment on certain terms. Look to conduct of offeree and reasonable person standard. If a method other than the method mentioned in the offer is selected, the acceptance would only be effective when it was received by the offeror Unilateral Contract- A special type of contract where acceptance occurs through undertaking a specified action (do not require communication of acceptance first). Unilateral Offers An offer made to the world at large The performance of the act is acceptance Generally, can revoke prior to completion of act of acceptance. However, Offeror cannot revoke offer if offeree is in the course of performing their part (unless the right is expressly reserved to do so).

Revocation The termination of an offer by notice communicated to the offeree before acceptance Offers can be revoked anytime before acceptance (even if offeror has gratuitously offered to keep it open for a fixed term) unless there is a formal option. Formal option is a separate promise and requires consideration or execution under seal to be irrevocable. Revocation must be communicated to the offeree (Note: Must actually be received; Post Office Rule doesn’t apply) Revocation can be communicated in any form as long as it is communicated. Doesn’t have to be communicated by offeror if it is communicated otherwise and it is a reliable source. Onus on offeror to prove reliability and timing of communication here.

SUMMARY: Contracts Promises enforced by the courts Requirements Intention to create legal relationship Presumptions certain people intend to contract and certain people do not intend to contract Offer Must be communicated to offeree and only one to whom offer is communicated can accept

Acceptance Must be communicated in manner requested by offeror Postal rule – acceptance is valid when and where placed in post box Other forms – when and where acceptance received by offeror Counteroffers – are a rejection and new offer Lapse Passage of time, counteroffer, or death of party Revocation (Revoking an offer). Anytime before acceptance unless an option is given

Chapter 8: Consideration Something that has value in the eyes of the law Each party must get something of value to bind there promises. An offer to do something for free is not binding (gratuitous promise), unless contract is under seal. Past consideration cannot bind a future promise. If I do something for you, I cannot force you to do something for me unless we agreed in advance. Types of consideration: Money Services Promise not to do something Relinquishment of a right Delivery of property Promise for a promise Characteristics A form of the bargaining theory Consideration must be something done for the promise given General rule is “no consideration = no contract” Gratuitous Promise: The promisor must get something in return for the promise or the promise is merely gratuitous Gratuitous promise is not enforceable under law

Seal: A formal mode of expressing the intention to be bound by a written promise or agreement A contract under seal is a formal contract which does not require any consideration and has the seal of the signer attached. Tender Differs from the ordinary offer Merely an invitation to submit offers Firm asking for tender can reject or accept such tenders

Quantum Meruit A reasonable sum of money to be paid for services rendered or work done when the amount due is not stipulated in a legally enforceable contract. Gratuitous reduction of a debt Creditors agreeing to accept less than what is owed is a gratuitous promise without consideration. Foakes and Beer Case - F lends B $100 + B promised to repay $100. F said give me $50 and then the debt is gone. Because B did not give anything of value to bind the promise to forgive half the debt that promise was not binding. B had to pay the next $50 in court. But in the Western provinces law has been passed that overrules FvB and a promise to accept a part payment in satisfaction of a debt is binding. Estoppel: A rule whereby a person may not evade a promise or deny the truth of a statement of fact made by him or her when another person has relied and acted upon the promise or statement Promise enforceable without consideration. Promissory Estoppel: If a party suffers a risk or a negative consequence to stay in contract, that has forgiven obligations the forgiven party is estopped from going back on their promise to forgive the obligations. Can’t go back on something that was forgiven, even if made without formal consideration. Capacity of Parties: Under common law some types of people lack the ability, competence or capacity in certain respects to enter into contracts which will be binding upon them or can enter only into certain kinds of binding contracts. Such as infants or minors, mentally incompetent person, Indians, Corporations, enemy aliens. THE FOLLOWING COMES JUST FROM LECTURE: Chapter 9: Capacity: Minors - Cannot be bound in a contract unless: - Necessaries - To sustain life according to your station in life (EXAM QUESTION ON THIS). Beneficial Contract of service - Apprenticeship - Someone hiding their impairment cannot claim a lack of capacity to get out of contract. Legality - The court will not enforce a contract for an unlawful purpose. Statute of Frauds (These things need to be in writing to be legally enforceable): (SHORT ANSWER EXAM QUESTION BASED ON ONE OF THE LISTS BELOW). 1. Contracts of a year or more (If there is a contract for more than a year it needs to be in writing). 2. Contract for an interest in land. 3. Contemplation of marriage. 4. Executors of wills.<...