COMM 393 Study Guide - Final Guide: The Employer, Financial Statement, Specific Performance
I. DISPUTE RESOLUTION
A. Court Systems and Procedures
Provincial:
(I) Court of First Instance (Small Claims, Criminal, Traffic Court, Family Court)
(II) Provincial Court (III) Supreme Court (IV) Court of Appeal (V) Supreme Court of Canada
Federal:
(I) Tax Court of Canada (II) Federal Court of Canada (Trial) (III) Federal Court of Canada (Appeal)
(IV) Supreme Court of Canada
Court of Appeal:
Party (appellant) unsatisfied with decision of court
Respondent – the other party
Lawyers only argue questions of law -> not a trial; no witnesses called
The Civil Process
Civil Wrong (i.e. Breach or Tort) → Litigant Consults Solicitor → Writ of Summons Issued → Writ Served on Defendant
(optional: Third Party Notice) → Three Options: (i) accept claims (ii) enter an appearance → if (ii), Defendant Enters an
Appearance → Pleadings: (I) Statement of Claim – state facts & damages suffered (II) Defence & Counterclaim – admit
facts & deny others; & add new facts. Counterclaim (III) Reply and Defence to Counterclaim → (1 yr) → Discovery –
pl./def. under oath exchange documents, list witnesses (prevents surprises at trial) → (1yr) → Trial
Costs at trial: max compensation is 40% for court costs
B. Sources of Law
- Substantive Law: rights and duties of each person -> (Public Law and Private Law)
- Procedural Law: protects and enforces rights and duties
- Common law: based on the recorded reasons given by courts for the their decisions
- stare decisis: to stand by a previous decision
- theory of precedent -> over time, prior decisions become increasingly important
- Equitable Remedy if:
1) $ is inadequate
2) subject is unique to K
3) fast feet – must bring legal action quickly
4) lea hads – your conduct as a plaintiff is good
C. Alternate Dispute Resolution
- Negotiation – w/o assistance of 3rd party
- Mediation – N3P (neutral 3rd party) facilitates process, outcome in control of parties
- Conciliation – N3P party acts as go-between conflicted parties
- Arbitration – N3P makes decisions regarding issues of dispute, parties have more control over process, but fewer
options with appeal of outcome
- Adjudication – N3P listens to conflicted party, parties have no control over process, may appeal outcome
Advantages of ADR:
- Speed
- Cost
- Choice of adjudicator/mediator
- Confidentiality
- Preserving ongoing relationships
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II. FORMATION OF THE CONTRACT
A. Offer and Acceptance, Writing
- We have contracts for land (must be in writing to be enforceable)
- A otat fo a pesoal guaatee ust e i itig to e efoeale
Elements for every contract:
1) Intent
2) Offer
3) Acceptance
4) Consideration
5) Capacity
6) Legality
1) Intent
- Law: Both parties must intend to be bound by their promises
- Pesuptio that itet eists hee the paties ae stages o i oee geeall usiess
relationships)
- Presumption- between family members, it is presumed that they would be paid back
- La if eutted: ould a easoale peso lookig at the outad odut of the paties sa the shoed
itet to e oud thei poises
- Law: if a c/o is present, the old contract is cancelled. But not every suggestion is a c/o, depends on intent
2) Offer
- Proposal and Intent
- Contains terms and conditions, must be unequivocal
- Carlil vs. Carbolic -> Law: Advertisements = invitation to do business
- Offeror controls: (i) Terms, (ii) how long offer is open for & (iii) how acceptance should be made
- Offer expires (lapses) when:
o time limit expires or if o tie liit speified, easoale aout of hae tie has passed
o If the offeror revokes the offer prior to acceptance
o If the offeree rejects the offer
o Either party dies or becomes insane prior to acceptance
o If a counteroffer is made - any changes to terms of original offer
3) Acceptance
- Must be a clear acceptance of all the terms (without change)
- If acceptance ethod uspeified, epl io iage ule- the acceptance has to look identical to the offer
- Postal acceptance rule: if the offeror stipulates acceptance by mail or the offer comes by mail without directions
on acceptance. Then acceptance is complete when the offeree places the letter in the mailbox (properly
addressed and stamped). If letter gets lost, contract is still binding
- Rule: eoatio ouiated he it is delieed to offeees addess
- Forum Selection clause: dictates which jurisdiction will have precedent over legal battles
o Law: Forum selection clause is treated with respect, unless there is strong cause to override
▪ I.e. differences in law, looking for prejudices, geographical location where all the evidence is,
one party gaining an advantage in a jurisdiction
- Subject to clause: condition precedent – this term (precedent) must be performed before the contract comes
into play.
o Must e eoed i itig ia a addendum
- Jurisdiction: place where contract was accepted:
o Mail -> offeree location
o Instant communication -> offeror location
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B. Consideration
4) Consideration/Exchange
- is the price for which the promise (or the act) of the other is bought
- In a unilateral contract, the pie paid fo the offeos poise is the act done by the offeree
- In a bilateral contract, the pie paid fo eah pats poise is the poise of the othe poise ust hae a
value in the eyes of law)
- Under Seal: consideration for a party. A promise signed under seal is binding, can replace a promise.
o Methods: (i) affixed wafer (i.e. wax seal or red circle) (ii) words - siged ude seal
- Gratuitous promise – a promise made without bargaining for or accepting anything in return
- Equitable Estoppel - applies to make the promise enforceable, where it is unenforceable at common law
o If all three of the following conditions are fulfilled, then the equity courts will enforce a gratuitous
promise, even though no consideration for the promise existed:
1) pre-existing legal contract or relationship between parties, which is modified by one party making a
gratuitous promise to the other
2) This promise is relied on by the promisee and the promisee would suffer a detriment or a hardship if
the promise were not lived up to
3) The argument must be used as a defence to a claim made by the promisor where a legal relationship
already exists between the parties. (equitable estoppel may only e used as a shield, ot a sod
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Provincial: (i) court of first instance (small claims, criminal, traffic court, family court) (ii) provincial court (iii) supreme court (iv) court of appeal (v) supreme court of canada. Federal: (i) tax court of canada (ii) federal court of canada (trial) (iii) federal court of canada (appeal) (iv) supreme court of canada. Lawyers only argue questions of law -> not a trial; no witnesses called. Appearance pleadings: (i) statement of claim state facts & damages suffered (ii) defence & counterclaim admit facts & deny others; & add new facts. Counterclaim (iii) reply and defence to counterclaim (1 yr) discovery pl. /def. under oath exchange documents, list witnesses (prevents surprises at trial) (1yr) trial. Costs at trial: max compensation is 40% for court costs: sources of law. Substantive law: rights and duties of each person -> (public law and private law) Procedural law: protects and enforces rights and duties.
