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LAW 122 Lecture Notes

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Ryerson University
Law and Business
LAW 122
Theresa Miedema

Law 122 Lecture #1  Compensatory Damages- to compensate for damages done in a dollar amount  Punitive Damages- to punish the defendant for damages done in a dollar amount they owe the money  Reasonable vs Unreasonable- must compare to other situations to find the median, average or general answer, known as Baseline  Never assume always know for a fact  Liable- legally responsible  Principles and reasons to impose a liability  Legal perspective would be to look at who is liable, liability  Business perspective looks at the risks, maximization of profit, brand image  Ethical perspective looks at whether or not it is the right thing to do, as well as morally  Managing The Law 3 Edition  Test- 30% February 12, Test 2- 30% March , Final Exam- 40%  Risk Avoidance- create less liability by entirely avoiding the risk  Risk Reduction- to reduce the amount of risk possible  Risk Shifting- spreading the risk around such as insurance For Example a company is liable for anything done by an employee but a company is not liable for the actions of an independent contractor  Risk Acceptance- the acceptance of the results from the risks taken  Liability Insurance- provides a benefit if the purchaser is held liable for doing something wrong  Property Insurance- provides a benefit if the purchasers property is damaged, lost or destroyed  Exclusion and Limitation Clauses- a contractual term that changes the usual rules of liability, may attempt to exclude all risk of liability or may exclude liability for certain types of acts  The law is very subjective which means nothing is certain  Jurisdiction- a geographical area that uses the same set of laws  Public Law- is concerned with govt and the ways in which they deal with their citizens  Constitutional Law- provides the basic rules of our political and legal systems  Administrative Law- is concerned with the creation and operation of administrative agencies and tribunals for example discrimination within a company female and male pay wages  Criminal Law- deals with offences against the state  Tax Law- is concerned with the rules that are used to collect money for the purposes of public spending  Private Law- is concerned with the rules that apply in private matters  Tort- is a private wrong  Intentional Tort- an assault or false imprisonment  Business Tort- deceit and conspiracy  Negligence- one person carelessly hurts another  Law of Contracts- concerned with the creation and enforcement of agreements: sale of goods, negotiable instruments, real estate transactions, operations of corporations and employment  Law of Property- concerned with the acquisition, use and disposition of property: Real Property, Personal Property and Intellectual Property  Law of Succession- deals with the distribution of a person’s property after death  Law of Trusts- deals with a situation in which one person holds property on behalf of another  Residual Power- gives the federal govt authority over everything that is not specifically mentioned  Ultra Vires- Beyond the power Lecture #2  Looking at contracts would be dissecting the case through a legal perspective  Contractual rights must be obeyed due to litigations and obligation if contracts are not obeyed than someone is legally liable  The business perspective will look at in any case which person benefits how, when and amount  Due diligence can be done to verify whether or not things are what they are to be said this is a form of risk assessment to make up for a business case  Stick with the facts, use the facts to support the outcome of the cases usually hinted through the facts  The Constitution states that any and all law must coincide and abide to the constitution which is the supreme law of Canada  Supreme law of Canada higher than legislation of case law  Any law that is inconsistent with it cannot be enforced  Special Constitution Amending Formula in Textbook  Federalism- a system of governance where the power to govern is shared between different levels of gov`t  The POGG Peace Order and Good Gov`t- the authority to create legislation relating to the `` peace, order and good government`` of Canada  Look at Section 91, 92 and 52 in Textbook  Provinces can only enact legislation that relates to matters in Section 92  Provinces do have the authority to enact legislation over generally all matters merely local or private nature in the province  Intra Vires- Within the jurisdiction of usually the federal gov`t  Ultra Vires- Outside the jurisdiction of usually the federal gov`t  Law is never must always never pick must always  Federal Paramountcy- when there is a conflict between valid federal legislation and valid provincial legislation than federal paramountcy is applies, this doctrine says that the federal legislation trumps the provincial legislation which leads to only having to follow the federal law  Doctrine of Federal Paramountcy- determines which law is pre eminent based on the Constitutions division of powers  Paramountcy- Pre eminent (important) or trump  Legislation- Federal level a bill has to go through a senate and signed by the governor general whereas provincial laws don’t have to go through a senate and have to be signed by a lieutenant governor  Courts of Equity- courts that deal with fairness, are more flexible like covering cases such as reliance  Small Claims Courts cannot give you an injunction Charter of Rights and Freedom  What? –Protected Rights: Fundamental Freedom, Conscience, Religion, Peaceful Assembly, Expression, Mobility and Equality etc. Unprotected Rights: Property, Economic  Who? –All human, Citizens, Residents, Legal Persons including Corporations, Fundamental Freedoms Section 2: Everyone, All legal persons and Corporations Mobility Section 6(1): Every Citizen that lives in Canada Mobility Section 6(2): Citizens such as permanent Residents Equality Section 15: Every Individual, Human Beings not corporations  From Whom? – Section 32(1) Only protects you from the Government, federal parliament and the provincial legislation  Section 1- limits our rights/protection, a reasonable limit looks at whether or not there is a compelling purpose as well as a rational connection to the purpose, also has to have the least possible means, if a case is too broad and covers to much ground than the case will not even be evaluated Charter CheckList G- Government Section 32(1) R- Rights (Everything but Property or Economic) E- Eligibility look at the Right holders A- Actual Violation in all cases S- Saved in section 1 (Reasonable Limit)  Property Rights- rights to enjoy property not part of the Charter  Economic Rights- rights to carry on economic activities not part of the Charter  Declaration- a court may simply declare that the Charter has been violated. The legislature must then find some solution to the problem  Injunction- requires the government to address the problem in a certain way, the choice therefore lies with the judge rather than the legislature  Striking Down- strike down or eliminate a statute that violates the Charter  Severance- a court may save a statute by rewriting part of it if only a part of it is offensive  Parliamentary Supremacy- while judges are required to interpret constitutional and statutory documents they must also obey them.  Legislation- law that is created by Parliament or a legislature  Common Law- Systems: the common law system that operate throughout most of Canada adopted from England Sources: rules that are created by judges rather than by legislators Courts: 2 sets of courts -> Courts of Law and Courts of Equity Case page 25  Legal- No. $150,000 paid – Section 9 of the Contract – No Obligation  Business- Potential for 2 Sales – Satisfied Customers (Repeat Business and Word of Mouth) – Risks (Crop quality, interest rate)  Ethical- Did not mention in advance – Serious harm to Inga Lecture #3  Plaintiff- person filing the complaint, suing  Defendant- person being sued  Action- the lawsuit  Cause of Action- Reason for suing  Lawsuit involving a child- litigation, negligence or contractual incapacity  Corporation- they can be sued or sue  Unincorporated- Cannot be sued or sue as a group, but individuals that are members of the groups may sue or be sued  Class Actions- one person brings a claim on behalf of a group Class Action Procedures 1. Courts must Certify the Class Action 2. Common Issues- Must be common issues amongst the various members of the class 3. Representative Plaintiff- Plaintiff must qualify as a representative plaintiff, must demonstrate a workable plan for fairly representing the interests of the class members 4. Notification- Representative Plaintiff must notify potential class members through any means such as newspaper ads 5. Preferable Procedure- the court will consider the case if the class action is not too complicated and whether there are enough similarities between the class members 6. Certification- represents the court’s decision to allow the various claims to be joined together and to proceed as a class action Case page 56 #1  Systematic Under Payment, Injured Workers (Health Safety Violations), 3-4 Individuals have been Sexually Assaulted  There is a Cause of Action , all issues are common similar but not necessarily identical  Must find a representative plaintiff in the group Antonio cannot be a representative plaintiff for all of the sub classes because of conflict of interest. Antonio previously had stakes within the company  Representative plaintiff must have a workable plan to notify members of the class, if a member does not want to be part of the class action than he or she must opt out  Preferable procedure whether it’s a class action or a single representative action  Time concern for Cause of Action- Bringing up a case within a time frame usually 2 years  Pleadings- initiate the case, first exchange of information from plaintiff to defendant, there is time limit for gathering information to create a statement of claim usually 3 weeks time limit  Pre-Trial – Both Plaintiff and Defendants meet with the judges outline positions, persuaded to settle through the judge determining which party is more likely to lose  Enforcement- Garnish Wages the wage of the defendant is skimmed off until all fees are paid off , Seize and sell assets, This is determines from a judgement debtor exam, you cannot take away an asset of the defendant that is used to earn a living  Appeal Court- Decides whether a mistake was made in the court below  Appellant- The party who attacks the decision of the lower court  Respondent- The party who defends the decision of the lower court  Courts must follow the decisions of the higher courts in its hierarchy For Example the Ontario Courts MUST follow only the higher courts of Ontario they cannot abide to the decisions of any other province or even the Federal Courts  Doctrine of Precedent- requires a court to follow any other court that is above it in a hierarchy  Small Claims Court- a type of provincial court that deals with disputes involving limited amounts of money, plaintiff must sue either where the relevant event happened, cannot award an injunction, limited to only ordering the payment of money, small claims courts can only hear small claims determined by the amount of money at stake  Injunction- a court order that requires the defendant to do something or refrain from doing something  Alternative Dispute Resolution (ADR)- process that allows the parties to resolve their disputes without going to court  3 Major types of ADR- Negotiation, Mediation and Arbitration  Negotiation- is a discussion aimed at settling a dispute  Mediation- a process in which a neutral party, called a mediator, helps the parties reach an agreement, in Ontario there is a Mandatory Mediation Program (MMP) prior to the trial and 90 days after the defence has been filed  Arbitration- a process in which a neutral third person, called an arbitrator, imposes a decision on the parties, the parties do not control the outcome and they are required to obey someone else’s decision  Arbitrator- often lawyers or professors who have spent decades dealing exclusively in specific areas of law.  Tort- generally consists of a failure to fulfill a private obligation that was imposed by law  Intentional Torts- person intentionally acts in a certain way, even if the defendant merely intended to act in a certain way but ended up hurting to plaintiff  Intentional Tort- Occurs when a person intentionally acts in certain ways, torts either require proof that the defendant intended to hurt the plaintiff whereas others are satisfied by proof that the defendant intended to act in a certain way.  Negligence Torts- occurs when a person acts carelessly  Strict Liability Torts- occur when a person does something wrong without intending to do so and without acting carelessly. It is enough that the defendant was responsible for the situation that resulted in the plaintiffs injury, a defendant may require to simply avoid the relevant activity all together, For example owners of livestock are strictly liable for any damages that the animals cause  Liability Insurance- a contract in which an insurance company agrees to pay damages on behalf of a person who incurs a liability, does not protect you from intentional or negligent acts  Duty to Defend- requires the insurance company to pay the expenses that are associated with lawsuits brought against the insured party  Compensatory Function- aims to fully compensate people who are wrongfully injured  Deterrence Function- discourages people from committing torts by threatening to hold them liable for the losses that they cause  Vicarious Liability- occurs when an employer is held liable for a tort that was committed by an employee, one person is responsible for another person’s actions, the plaintiff will claim damages from both an employee and an employer, this liability makes employers think twice when hiring employees, if an employee commits a tort outside of the employment relationship than the employer is not liable,  Litigation- the system of resolving disputes in court  Children and adults with mental incapacities must be represented with a litigation guardian  Organizations normally cannot be sue or be sued instead the individual members of the organizations are usually sued  Professional Liability Insurance- allows a client to receive compensation from the lawyers insurance company if the lawyer has acted carelessly, result of professional negligence  Assurance fund- provides compensation to people who are hurt by dishonest lawyers  Statement of Claim- is a document in which the plaintiff outlines the nature of the complaint  Statement of Defence- is a document in which the defendant sets out its version of the facts and indicates how it intends to deny the claim.  Counterclaim- is a claim that the defendant makes against the plaintiff  Demand for Particulars- requires the other side to provide additional information  Examination for discovery- a process in which the parties ask each other questions in order to obtain information about their case  Pre trial Conference- a meeting that occurs between the parties and a judge  Ordinary Witnesses- testify about facts that they know first hand  Expert Witnesses- provide information and opinions based on the evidence  Examination In Chief- the party who calls a particular witness will ask questions and receive answers  Cross Examine- when the other party gets a chance to question the witness  Adversarial System- each side is encouraged to present its own version of events and to attack the other side’s story  Hearsay Evidence- is information that a witness heard from another person, rather than directly from the source  Judgement Debtor- is a defendant who has been found liable and ordered to pay money to the plaintiff  Appeal Court- decides whether a mistake has been made in the lower courts  Appellant- the party who attacks the decision of the lower court  Respondent- the party who defends the decision of the lower court  Normally appeals are judged by an odd number usually 9 in order for no ties if the vote is that the lower court is correct it affirms the lower courts decision  The judges may also reverse, vary or retrial the case  The appellate judge who disagrees with the majority is entitled to write a separate judgement called a dissent  Contingency fee agreement- requires a client to pay its lawyer only if the lawsuit is successful, all provinces except Ontario  Provincial Court- deals with small claims, family matters, youth matters, most criminal cases  Small Claims Courts- type of provincial court that deals with disputes involving limited amounts of money, very popular with business people because they are faster, simpler and less expensive  Small Claims Courts Drawbacks- Geographical Limits- plaintiff must sue either where the relevant event happened or where the defendant lives. Types of Claims- most cases where plaintiff is suing for either a limited amount of money or the return of property that it already own does not deal with income tax act and the copyright act cannot evict tenants or grant divorces. Types of Remedies- cannot award equitable relief such as specific performance and injunctions. Monetary Limits- court can only hear small claims Ontario limit is $25,000.  Doctrine of Precedent- requires a court to follow any other court that is above it in a hierarchy  Rule of Law- state that disputes should be settled on the basis of laws, rather than personal opinions  Administrative Tribunal- Is a body somewhere between a government and a court that resolves issues and disputes that arise in administrative law, Examples: Canadian Human Rights Tribunal, tribunal members are usually selected either by the parties or by a statutory process based on their experience in an area  Privative Clause- is a statutory provision that attempts to prevent a court from exercising judicial review over a tribunal decision  Alternate Dispute Resolution- any process that allows the parties to resolve their dispute without going to court, this form of resolution is voluntary  Tort- a failure to fulfill a private obligation that was imposed by law, an obligation in tort law is owed to a person  Tortfeasor- a person who has committed a tort  A tort is broken during a private obligation where as a crime is broken during a public obligation  Both Contracts and Torts: Structure- Involve primary and secondary obligation, primary will be to tell people how they ought to act and secondary will be to tell people whoo they must act after primary obligations have been broken. Source of Primary Obligation- Obligation for tort comes from the law whereas the obligation of a contract comes from both parties. Privity- The only people that can or be sued on a contract are the parties themselves; in cases for tort anybody can be sued. Compensation- In tort you will get repaid whereas in a contract agreement you will get benefits, Tort looks backward whereas Contract looks forward. Risk Management- Tort obligation will come more as a surprise because a person might not be educated on the law whereas in a contract all parties know what to expect towards obligation therefore it shouldn’t be a surprise. Lecture #4 Continuation Chapter #4  An Independent Contractor- is a worker who is not as closely connected to the employers business as is an employee  Employee- employer controls most of what is done, the employee uses the employers equipment and premises, the worker is paid a regular wage or salary rather than a lump sum at the end of each project and the worker in integrated into the employers business rather in their own business  Insurance does not cover intentional acts such as molestation at a child care centre  Vicarious Liability- is only based on the intentional acts of the employee unless the employer hires independent contractors where they are not responsible  Tort Remedies- Compensatory damages, Punitive damages, Nominal damages and Injunctions  Compensatory Damages- The defendant is required to pay for the losses that
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