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Law 122 - Chapter 1-3.docx

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Law and Business
LAW 122
Theresa Miedema

CHAPTER1 – Risk Management & Sources of Law Laws are rules and guidelines, but not all rules and guidelines are laws. Law is a rule that can be enforced by the courts. Just because you have broke a moral obligations, doesn’t mean you broke any legal obligations. Civil law: (ROME) more refer to as private law than public law, more have to do with contacts and torts Common law: (ENGLAND) judges who sat in the courts of law as opposed to courts of equity Under the Canadian law, there are 2 different types: 1. Public Laws: how governments and the ways in which they deal with their citizens  Constitutional Law: basic roles of political and legal systems; establish rights and freedoms  Administrative Law: concerned with the creation and operation of: agencies, boards, commissions, tribunal  Criminal Law: deals with offences against the state: people who broke the law (can also white collar crimes)  Tax Law: concerned with the roles used to collect money for the purpose of public spending Crime is a public wrong (against the whole society) ; torts is a private wrong (against another person) 2. Private Laws (main focus):  law of torts: (i) intentional torts: assault and false imprisonment (ii) business torts: deceit and conspiracy (iii) negligence: when one person carelessly harms another  law of contracts: concerned with creation and enforcement of agreements (ex. negotiable instruments, employment, etc)  law of property: concerned with the acquisition, use, and disposition of property (i) real property: involves land and other things attached to land (ii) personal property: involves things that can be moved from place to place (iii) intellectual property: things that consists of original ideas (patents, copyrights, etc.) Sometimes laws do overlap, one events could arise 2 or more breach of different laws SOURCES OF LAW: (Constitution, legislation, courts) THE CONSTITUTION:  the most important source of law; the document that creates the basic rules for Canadian society, including its political and legal systems.  “The constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the constitution is, to the extent of the inconsistency, of no force or effect”  It is very difficult to change the constitution, unlike other laws, the constitution can only be changed through a special AMENDING FORMULA. This requires the consent of Parliament plus the legislatures of at least 2/3 of the provinces, which those consenting provinces represent at least 50% of the country’s population. Division of Powers:  Federal: The parliament of Canada; governs the whole country; Part 1:  House of Commons consists of members of parliament (MPs), who are elected from every province and territory. Part 2:  The Senate consists of senators, who are appointed to their job.  Queen of England remains our head of state since Canada began as a British colony and is still part of British Commonwealth. In reality the country is run by the political party that has the most MPs, and the leader of that party is the prime minster  Provincial or Territorial: Legislative Assembly or legislatures who are politicians representing their own provinces and territories. The each 13 legislature’s body is similar to Parliament and whose leader is the premier. Federal government has the REDISUAL POWER, the power over everything that is not otherwise mentioned, and has authority over the number of topics that didn’t exist when the Constitution was written. A government sometimes tries to create law outside of its own area. When it does, it acts (ultra vires), which means beyond the power. Charter of Rights and Freedoms: As long as the government acts within its own area (intra vires), the laws were generally valid. The charter of rights and freedoms was written unto the Constitution in 1982. It protects the basic rights and freedoms.  Fundamental Freedom (2) 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 d) freedom of association  Mobility Rights (6) a) every citizen of Canada has the right to enter, remain in and leave Canada b) every citizen of Canada and every person who has the status of a permanent resident of Canada has the right :1) to move to and take up residence in any province :2) to pursue the gaining of a livelihood in any province  Equality Rights (15) a) 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 b) 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, sec, age or mental or physical disability Government Action: The Charter does not directly apply to disputes involving private parties. Corporations: A corporation is type of person, but not an individual. Generally charter rights do not apply against private corporations. Reasonable Limits: limits prescribed by law as can be demonstrably justified in a free and democratic society. THEREFORE – recognizes that it is occasionally acceptable to violate a person’s rights (ex. Prevention of store owner to sell violent pornography) Notwithstanding Clause: allow parliament or legislature to create and enforce a law “notwithstanding” the fact that it violates the Charter. Charter Remedies: action taken when Charter has been violated  Declaration: court declares the Charter been violated, and the legislature must find solution to it  Injunction: Court impose an injunction that requires the government to address the problem in a certain way. Choice lies with the judge, not legislature.  Striking Down: eliminate a statute that violates the Charter  Severance, reading down, and reading in: re-writing part of statute by either cutting parts of it out, read down and make it more specific then too broad, and read in when it’s too narrow.  Damages: some remedy awarded to a person who has suffered a charter violation LEGISLATION: law created by Parliament or a legislature. The most important kind of legislation is statutes, or acts.  Process: a bill introduced into the House of Commons by an MP (first reading), if majority of MPs support it, sometime after the bill re-appears for second reading. If once again it has the majority of supports, it is sent to a legislative committee for detailed study. After it re-appears for third reading, if all goes well, it is sent to the senate, there the 3 stages is repeated. If the bill is passed by Parliament, it only requires the royal assent, which is her majesty’s approval. That approval is given on her behalf by the Governor General.  Subordinate Legislation: they are the regulators that regulates the legislations created by the parliament and legislatures. They create specific rules without the need to go through the entire legislative process.  Municipalities: a city or a town created by the provinces with the power given from the constitution. They are there to regulate their own town and have authority to pass by-laws which is a type of subordinate legislation THE COURTS: third source of law, it is the law that the courts created.  Common Law: it has 3 different meanings  System of Law: common law system that traced to England compared to the common law Quebec use which borrowed from France  Source of Law: the term common law can be refer to rules created by judges rather than legislator or constitution.  Type of Court: courts of law or courts of equity CHAPTER2 – Litigation & Alternative Dispute Resolution Litigation: is the system of resolving disputes in court.  Who can sue or be sued? Usually every adult can sue or be sued, they don’t have to be Canadian, and also since a corporation is a legal person, they can directly be sued or sue others. There are exceptions such as in some provinces, trade union (unincorporated organizations) can sue or be sued directly. Lastly, special rules apply when the government is sued, because “the king can do no wrong”, the crown cannot be sued without consent. Class Actions: allows a single person or a small group of people, to sue on behalf of a larger group of claimants. Class actions also could benefit the society because court time is very expensive, by doing similar claims at once can save money.  Common issues: a common issue that ties all the people in the class action together. (Ex: Walmart paying female less than male)  Representative plaintiff: he/she must demonstrate a workable plan for fairly representing the interest of the class members.  Notification: representative plaintiff must also have a workable plan for notifying potential class members.  Preferable procedure: court must be convinced that a class action is the preferable procedure for dealing with the claim.  Certification: When all above requirement are met, court shall allow the claim to be joined together as a class action. (Most important step in process – demonstrates that the court believes there is serious claim to be considered.) Self Representation: you have the right to, but due to your lack of experience, there a chance you will lose the lawsuit and cause a far greater loss then hiring a lawyer. Lawyers: there’s no guarantee success, but it provides the competent help and it increases your likelihood of success. And to further assure the client, lawyers must get professional liability insurance in case the lawyer acted carelessly, and if you have been hurt by dishonest lawyers, assurance fund will provides compensation. Paralegals: is a person who is not a lawyer but who provides legal advice and services. But they have not received formal training, not been regulated by government, have not been governed by a code of conduct, and have not been required to carry liability insurance. BUT after 2007, Ontario not has licensed paralegals, and they must successfully complete examinations. Pleadings: Pleadings are the documents that are used to identify the issues and clarify the nature of a dispute. Some are prepared by the plaintiff and some are from the defendant. Plaintiff is the person making the complaint and the defendant is the person about whom the complaint is being made. Limitation Period: period of time within which an action must be started. In terms of – contacts: must be commenced within 6 yrs - torts: within 2 yrs Recently, however, there has been a move toward a simplified system in which most claims must be stated within 2 years from the day the plaintiff discovered, or should have discovered, the cause of action.  When suing a municipality in Ontar
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