Canadian business law summary PDF

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Chapter 1 The law and legal system of others. Neglecting production of goods that cause injury to customer, careless professional service that cause physical or economic loss, a unsafe workplace, direct and indirect injury through actions of employees. Contract and sale of goods, employment of staff...

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Chapter 1 The law and legal system Tort=injury of others. Neglecting production of goods that cause injury to customer, careless professional service that cause physical or economic loss, a unsafe workplace, direct and indirect injury through actions of employees. Contract law=Purchase and sale of goods, employment of staff, reduction of risk (Insurance) etc. Right= Do act with the force of state behind us. Connected to duty, we have a right to do something and that impose a duty of others to not interfere. Right often permit person to do something that interfere with others. Therefore laws also include duties or obligations on the person exercising their right to minimize interference with others. Privilege= actions that might be withdrawn by the state. Acts that state allow or that are allowed under certain circumstances at the pleasure of state. Role of law= 1. Settle disputes of individuals. 2. Degree of fairness and don’t disturb other people. 3. Protect people. Common law= “Case law”. Answers not found in code (except statutes law) but rather recorded judgements of court. - Stare decisis: “let decision stand” or “stand by previous decision” the theory of precedent in common law. Judge must apply previous decision of a similar case of the two cases are the same if decision was. A) from judge’s own court. B)from a court of equal rank. C)from higher court. - Only supreme court of Canada can overrule previous decision, but do so with care. Decisions of supreme court are binding for all court of lesser ranking. Canon law=Church law. Marriage, deceased person etc. Law merchant=Commerce and trade Statutes= “It is decided”. Law by government, government have power to make laws under the terms of a written constitution (US/Canada) or as result of long-standing traditions (England). Legislative not judicial. -Bill: Proposed statue law presented to legislative body (house of commons or on provincial level) -Motion: a decision to be read and spread for reading. -Royal assent: Bill have been passed to house of commons and Senate or provincial legislature. Bill must receive royal assent by Governor general (federal level) or Lieutenantgovernor (provincially). Have never been refused at federal level, have been refused at province level. If bill get royal assent it become a statute and it will affect residents of province (if at provincial level) or all residents of Canada (if federal). -Québec: Civil code instead of common law

Constitution= The basis upon which the state is organized, and the power of government. written authority, fundamental rights and the freedom of citizens and law-making powers. -Canadian constitution: “The Canadian Charter of rights and freedoms”. Written document sets out right and freedom of Canadians, as well as power of federal government and provinces. Two major parts – 1. Canadian Charter of Rights and Freedoms. 2. Amending formula (ändra, korrigera). -Section 92 states the specific authority of provinces to make law regarding different areas. Eg. Licensing of business or natural resources. While Section 91 states authority to make law on federal level, such as criminal law, bankruptcy etc 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.” Only government not individual against individual. Only right in the charter have charter protection meaning that governments can’t get rid or change these. Parliament and provincial legislature can be restricted if "be demonstrably justified in a free and democratic society." - Not withstanding clause: allows Parliament or provincial legislatures to override certain portions of the Charter, temporarily overridden 5 years or less. -Limitations: if the rights or freedom of one individual will not be exercised to the detriment of the public. (enskild persons rättigheter eller friheter inte kommer att utövas till allmänhetens nackdel.) -Fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

-Change of charter right: The Charter of Rights and Freedoms may only be changed by agreement of Parliament and 2/3rds of the provinces, provided that the provinces represent at least 50% of the population of all of the provinces. The original British North America Act of 1867= Structure of government, the legislative powers and jurisdiction of the provincial governments and parliaments.

Right to due process: In arrest, right to lawyer, right to trail in a reasonable amount of time etc. Miranda rights. Substantive law= Right and duties of individuals and corporations. Procedural law=Law which sets out the procedures by which individuals may enforce their right and duties. Private law=Law between individuals. Most of common law. Ex. Law of contract. Public law= Crown against individuals, between individual and government. Ex. Criminal code and tax law (federal), Highway traffic acts (provincial).

Chapter 2 Judicial system Jurisdiction= Right or authority of court to hear and decide in a dispute. -Monetary: court can view cases up to a set amount -Geographic: cases concerning land within province or other area. Courts of original jurisdiction/court f first instance= Dispute or case heard for the first time by judge, all facts presented. Both civil and criminal cases. Number of courts in each province.  Trial courts Courts of appeal= Hears appeals from original jurisdiction. Higher court which mean that they can overrule decision of lower court. Don’t hear evidence but rather arguments for why parties are concerned with decision in previous court. At least one in each province. Federal court of appeal= Deal with appeal from tax court or federal court. national level. Supreme court of Canada= Hear appeals from provincial appeal courts or federal court of appeal, but right to appeal is restricted. Civil court= Disputes between corporations and individuals or individuals/corporations and government. - Small claims court: amount of money small. - Provincial supreme court: Alberta court of queen’s bench. Civil disputes beyond or outside of small claims. - Appeal court of province: Alberta court of appeal. A Court of Appeal may (1) reverse the decision, if the trial judge erred. (2) affirm the decision of the trial judge, or (3) send the matter back to the lower court for a new trial.

Pleadings= issue of dispute and fact surrounding conflict. 1. Claim 2. Defense 3. Close of pleading 4. Discovery 5. Trail

6. Appeal Contingency fees= A lawyers dee payable on the condition of winning the case. Class action= One person represent interest of group who will share award. Arbitration= Like court but less formal. Not as high cost as court. Mostly used to resolve disputes in term of contracts, also between businesses who wants to maintain a relationship. -Commercial arbitration: International business where parties are in different countries.

Chapter 7-11 Legal relationships/contract Elements of legal contract= 1. Intention to create legal relationship: The intent of the promisor to be bound to promise made. Agree or refrain from doing something in return for thing of a particular nature. Promise between family and advertisement is often not seen as intent. Consensus ad idem: agreement as to the subject or object of the contract.

2. Offer: Tentative (preliminärt) promise subject to a condition. Person makes offer with conditions attached to it that require the other party (promise) to do act or give a promise in return. An offer must be communicated by the offeror to the offeree before acceptance may take place. Offeror is therefore not bounded to contract if acceptance happen before offer (e.g. Case of printer in book). Only the person for which offer is made can accept offer. - Lapse= termination of an unaccepted offer by passage of time, counteroffer, bankruptcy of one party or death of party. -Revocation= Termination of offer by notice of communication to the offeree before acceptance. Act of offeror, no specific way it must be communicated as long as offeree get information before acceptance, however reliable source if not offeror itself. -Option= Offeror must keep option of offer open during specific time either in return of compensation or because of formal documentation under seal.

3. Acceptance: Bilateral contract: A statement of act given in response to and in accordance with offer, communicated. Acceptance must be communicated to the offeror in the manner requested or implied by offeror at the offer. By post, acceptance is made when letter of acceptance is placed in postbox or at post office since offoree has done everything it can to accept offer. Must accept offer as it is with those conditions (unconditional) otherwise, counteroffer, and original offer is terminated is offeror doesn’t wish to still go on with it. Unilateral agreement: The offer is accepted when offeree have completed their part of agreement, and then offeror complete their part (discounted price coupons).

4. Consideration (hänsyn): Something of value in the eyes of law which promisor will receive in return for promise (court doesn’t care if compensation is of proper value or not, just if it have some type of payment). E.g. Money, performance of service, promise not to do something, relinquishment (överlåtande) of right, delivery of property or promise in return of promise etc. Must have consideration in order to be legally binding. An error of consideration can still be enforced if it’s not evidence enough that the person made an error by previous offer or similar. -Gratuitous promise: Promise without consideration. Charity can be exception if it is made clear that donation is to be given, because of previous relationship or significant in amount/relies on donation. -Seal written document: A formal mode of expressing the intention to be bound by a written promise or agreement. Document in form of signing a wax impression. A written agreement would be enforced by court if promisor had placed seal on document. Seal is a sign that person have given it a considerable thought of being bound. Can be used to validate a gratuitous promise. -Legality of consideration: The consideration of contract must be legal. E.g. Business contract with clause of buyer toresell goods at fixed or minimum price would not be legal under competition act, therefor the consideration is illegal  contract not binding. -Quantum meruit: If no price is established when request is made then the person should recover a reasonable amount of the price of service or goods requested. E.g. plumbers or snickare. One-person request for service. -Equitable or promissory estoppel: A person may not deny the truth of a statement of fact made by him/her when another person has relied and acted upon statement. If promise rely on gratuitous promise they can use estoppel as a defense to a claim from promisor to enforce

contractual rights. -Checklist: consideration not past? Consideration legal? Consideration both directions? Value both directions? Exception (seal, donation, negotiable instruments, third-party settlement, quantum meruit, estoppel). If not any of these -> gratuitous promise and can’t be enforced by court. - Creditor- Debtor: Gratuitous promise of having the debtor pay back less than the amount owned. However legally binding if payment is done before due date. Payment of debt is made by someone else then the debtor. Payment in kind (giving something else then money in return).

5. Capacity to contract: Not everyone is permitted to enter contract that would bind them by law. -Minor/infants: Person under the age of 21, most provinces 18 or 19. Not bound by their promise. Only contract for necessary items enforceable against minors. (Food, shelter, employment or clothing on credit, not luxury goods). Whether a contract can be enforced on minors also depend on if contract have been fully excecated (most cases minor is then bound to contract if not he/she have been taken advantage of) or not yet performed (not bound, also for necessary items). Fraudulent misrepresentation of age doesn’t permit someone to hold the minor to a contract, in that case the minor has to give back goods and court tries to put them in same position as before entering contract with minor. Contract of permanent nature (partnership, long-term credit contracts) must be repudiated (refusal to perform agreement) by minor in a reasonable time after attaining the age of majority otherwise it’s binding or ratify (adopt contract). -Drunken and insane persons: Same way as infants with capacity to enter a contract. Even if seller knew person was drunk the drunk person can still buy necessary items as infant and be bound. Non-necessary items the seller must have known the state of person and the drunken person must repudiate the contract as soon as possible when sober. -Corporations: Formed under Royal charter or letters patent have same power to contract as normal person. Ultra vires: act beyond legal authority or power under legislature of corporation, if made by corporation (enter a contract without authority) the contract is not binding to corporation since everyone can find information about power. Most provinces a corporation have same power as every person. -First nation bands: Neither legal entities or person. -Bankrupt person: limitation of capacity to contract, until discharge can’t enter a contract. Person must declare bankruptcy to other parties. -Checklist: Is the other party to my transaction of full age and neither drunk or insane? Is contract for a good or service which is necessary? If no to both  contract might be repudiated by other party.

6. Legality: Agreement that offend public good are not enforceable. Agreement for illegal purpose, not only enforceable but also illegal. Agreement to commit crime (robbery, assault, abduction, murder etc.). -Competition act: Can’t contract to limit competition (fixed prices, reduce numbers of

competitors etc.). -Wagering contracts (vadslagning): are enforceable unless insurance since the insured person have interest. -Public policy: Court unwilling to enforce rights that are contrary to the general interest of public. E.g. agreement between vendor and purchasers of business that contain unreasonable restrictions of the right of the vendor to engage in similar business in competition of the purchaser, or agreement between employer and employee that unreasonably restrict the right of employee to compete with the employer after the employment relationship is terminated  Prima facie “on first appearance” void and unenforceable. -Checklist: Subject/object of contract contravene any law of Canada, province or municipality? Contravene “public policy”? if performance require license, do I have it? Forma and informal contract: A contract deriving its validity from the form is a formal contract or covenant. A simple contract oral or written is an informal contract. Power of attorney (Fullmakt): Legal document, must be signed under seal, which person appoints another to act as her attorney to carry out the contractual or legal acts specified in document. To be valid it must be written, signed, sealed and delivered. Statute of fraud: Require that particular transactions will be in writing. The failure to comply with written requirements renders the contract and become unenforceable by court. E.g. Land, long-term contracts, wills. -Document must include: Parties identified by name or description, terms of agreement in detail (offer, acceptance, payment, what land we are talking about) and document must be signed. Estate: Executor or administrator of estate undertake responsibility to collect, care for and distribute assets of a deceased person and to keep all assets in estate, separate from own personal funds. If funds are taken out of own pocket to pay debts of estate this should be in writing. Guarantee (borgensman): A person agree to answer for debt, default or tort of another person, must be in writing. Three parties= principal debtor, third party and guarantor. If principal debtor can’t make payment of debt the creditor may look for guarantor for payment, however guarantor never primary liable. In Alberta this type of agreement must not only be in writing, it must also be before public to make sure that guarantor understands the obligation. Corporations can’t be guarantors. If guarantor pay debt (because original debtor was not able to) the guarantor owns the rights of credit. -Indemnity: Third party become the principal debtor - Assumed liability – Tort: Third-party promise to answer for tort of another person, must be in writing and be signed by the party to be charges otherwise it’s not enforceable. -Parol evidence rule= Prevent party from introducing evidence that would add or contradict terms of contract. -Condition precedent=One event must occur before contract may come in effect. -Implied term/The doctrine= Parties leave out term that are usually found in same type of

contracts, court may conclude that the same term should be implied in contract. -Collateral agreement= Separate agreement between parties that may have effect on written agreement but that is not in the original one (add, alter with agreement). -Subsequent agreement= agreement made after written agreement that alters or cancels agreement, new agreement is made. Sale of goods act: Require sale of goods over certain amount to be in writing.

Failure to create enforceable contract:

- Mistake= The parties are mistaken as to some essential term in the agreement. Parties have entered into an agreement in such way that the contract does not express their true intentions. If one party mistaken and other party suspect it  unilateral mistake. If both parties unaware of mistake  mutual mistake. Mistake of fact: contract void due to mistake as to the existence of subject matter (e.g. bout burned up or identity of one of the parties) Rectification: correction of mistake if it renders performance to be impossible to perform.

- Misrepresentation= Innocent or fraudulent that induces a person to enter a contract. Injured person must cease to accept benefits under the agreement once the misrepresentation is discovered. Rescission: revocation of contract or agreement. Is only possible if the innocent or injured part relied on false statement made by the other party. Innocent misrepresentation: Misrepresentation of fact that the party making the statement

honestly believe to be true but discovered after the parties had entered the contract. Court will try to put parties back as before contract. Fraudulent misrepresentation: Known to party that information is false, made with intention to deceive the other party. Punitive damage against party committing tort. Misrepresentation by non-disclosure: If one party of contract possess information that if undisclosed might materially affect the position of the other party the court require this information to be disclosed in agreement. Negligent misrepresentation: statements that were sufficiently reckless.

- Undue influence= Under influence or power of another, decision is not his/hers own. Contract should be voidable as soon as party is free from dominated influence. Trust of good faith: limited to relationship of trust. (E.g. doctor-patient, parent-child, husband -wife etc). -Duress= Threat of violence, result of violence to person or family. Voidable contract as soon as person under duress is free.

Chapter 12-14 Contractual rights Third-party liability: Person can’t incur liability under contract which he/she is not a party, contracting parties can’t impose liability on third-party unless in circumstances when law imposes liability (e.g. partnership, where one party can enforce liability on the other party when entering into contract).  The doctrine of privity: A person not a party of contract could not acquire rights or liability under agreement. However, various statutes may p...