Class Notes (835,673)
Canada (509,326)
LAW 122 (825)
Lecture

LAW 122 Notes for ENTIRE COURSE.docx
Premium

113 Pages
171 Views
Unlock Document

Department
Law and Business
Course
LAW 122
Professor
Theresa Miedema
Semester
Fall

Description
LAW 122 Notes Chapter 1: Risk Management and Sources of Law  Why study law?  risk management (know the rights/rules)  Factors affect success and failure in business  decision-making: eg location choice, product, marketing  Business decisions have legal consequences  Negative: eg dumping pollutants into environment  Positive: eg binding contractual party to promise  Legal consequences affect profits and losses  Some decisions impose liability, others create opportunities  An introduction to the legal system  the nature of law  a map of the law  sources of law  Risk Management Process  Businesses must manage legal risks  Three steps:  identification: recognize legal risks  “Can we be held liable for this?”  evaluation: assessment of legal risks  “What are the chances of something going wrong?”  response: reaction to legal risks  “What are we going to do about it?”  Forms of Risk Management  nearly every business decision creates some risk  different risks must be treated differently   Reduction (bank collateral)  Shifting (insurance/waiver)  Acceptance (ford pinto car)  Examples  Insurance  liability insurance or property insurance  Exclusion and limitation clauses  contractual terms that exclude liability for some acts/losses, or limit compensation available  Incorporation  “limited liability”: shareholders not usually liable for company debts  The Nature of Law  Rules and laws  all laws are rules but not all rules are laws  Morality and law  moral wrongs are informally sanctioned  eg damaged friendships or reputation  legal wrongs are formally sanctioned  eg fines or imprisonment  Laws are rules that can be enforced by courts  Set of principles, mode of reasoning – thinking about problems and finding solution  Applying legal principles  Journey as well as destination  Morals is not equal ethics (letting the fisherman drown)  Identify the issue  State the law  Transition to the facts  Application (law and facts) is conclusion  sharks and ladders  virtue  rights + duties  fairness  consequences  Legal Jurisdictions  “Jurisdiction” means a geographical area that uses the same set of laws  Two main types of jurisdictions or legal systems  civil law jurisdictions  common law jurisdictions  Civil Law and Common Law  Civil law jurisdictions:  Originated in ancient Rome  eg France and most of Europe, Louisiana, and Quebec  Common law jurisdictions:  Originated in England  eg England, Australia, New Zealand, most of Canada  Some laws are the same across Canada  eg criminal laws and constitutional laws  Categories of Law   Public Law  Matters of public concern, such as:  constitutional law: rules governing basic operation of law and politics  administrative law: rules governing creation and operation of agencies, boards, tribunals, and commissions that exercise delegated authority  tax law: rules regarding collection of money for public spending  Criminal law  rules governing wrongs against society  eg punching a person  crimes in the business world:  white collar crimes (committed by “people in suits”)  corporate crimes (committed by a company itself)  A company can be convicted under the Criminal Code for acts of directors, officers, employees and others  Private Law  Matters of private concern, such as:  tort law: rules governing wrongs against persons (involuntary)  contract law: rules governing creation and enforcement of agreements (voluntary)  property law: rules governing acquisition, use, and disposition of property  Sources of Law  Hierarchy of sources of law  Constitution  legislation  courts  The Constitution  Provides basic rules for society, including our legal and political systems  Highest source of law  law inconsistent with Constitution: no force or effect  section 52 of Constitution  Difficult to amend  requires consent of both Parliament and two-thirds of all provinces with at least 50% of population  Federalism  Two constitutionally recognized levels of government  Federal government: represents entire country  Parliament, made up of Senate (appointed) and House of Commons (elected)  lead by Prime Minister  Provincial (territorial) government: represents province (territory), called the Legislature (elected)  lead by Premier  Division of Powers  Constitution divides legislative authority  federal government: eg crime, bankruptcy, copyright (section 91)  provincial government: eg property, civil rights (section 92)  federal government holds residual power  doctrine of federal paramountcy determines which law trumps when federal and provincial statutes conflict  when a government legislates outside its authority, law is ultra vires and has no force or effect (s. 52)  Charter of Rights and Freedoms   Part of Constitution since 1982  Rights and freedoms commonly affecting business:  freedom of religion  freedom of expression  freedom of mobility  right to equality: prohibited grounds of discrimination include race, sex and religion, but not poverty  Some interests not protected: economic and property  Limitation on Charter Rights  Charter only applies to government action  not (directly) applicable against private businesses  Charter may apply in favour of private business  some provisions limited to “individuals”  Charter rights subject to “reasonable limitations”  balance individual rights and community interest  Charter subject to “notwithstanding clause”  government can override some rights and freedoms  Charter Remedies  section 52: Constitution as supreme law  law inconsistent with Charter “of no force or effect”  section 24: enforcement of rights and freedoms  judge may award any appropriate remedy, including a declaration, injunction, striking down legislation, severance, reading down, or reading in, and damages  Charter Dialogue  Parliamentary supremacy: democracy  ultimate authority rests with governments (elected and accountable), not judges (appointed in Canada)  Charter dialogue  Government creates laws through legislation  Courts identify Charter violations  Government may respond by amending or enacting laws to conform with Charter  Legislation  Laws created by Parliament or Legislature  Two categories: statutes and subordinate legislation  Statutes: legislative process  introduced as “bill”  majority support through series of “readings”  sometimes public consultation follows  finalized by “royal assent”  Subordinate Legislation  Subordinate legislation (eg regulations, by-laws)  created under Parliament’s or legislature’s authority  example of municipality  province creates municipality  province gives municipality power to pass by-laws  Courts  Function of courts  interpret and apply Constitution  interpret and apply legislation  create and apply “common law” (judge-made law)  Definitions of “Common Law”  The term “common law” has different meanings depending on context:   Definitions of “Civil Law”  The term “civil law” has different meanings depending on context:  Legal system: Civil law (eg Quebec/France) vs. common law (eg England) jurisdictions  Private vs. Public Law (eg civil law vs. criminal law)  Common Law and Equity  Historical developments  phase I: courts of law  only one set of courts in England  rules often rigid and harsh  People sought other relief from the King  Historical developments (cont’d)  phase II: law and equity  Courts of law supplemented by courts of equity (or chancery)  separate courts, judges, and rules  phase III: fusion  law and equity combined into single court  ongoing rationalization of legal and equitable rules  in the event of an inconsistency, the equitable rules apply  Equity  Nature of equity  traditional equity: disputes resolved by conscience of king or chancellor  modern equity: disputes resolved by rules (essentially same as law)  occasional differences remain between law and equity (eg damages at law — specific performance at equity)  Trusts  Property held for benefit of another person  trustee holds legal title to property  beneficiary enjoys equitable title to property  Express trust: settlor transfers property to trustee to hold for beneficiary Lec 2: Ch 2: Litigation and Alternative Dispute Resolution • The litigation process o Resolving disputes using the court system o Business people can deal with lawsuits themselves, but experts are recommended for serious matters o Who can sue?  Adult people, even non-Canadians  Some organizations (corporations) but not others (eg usually not unincorporated associations)  Special rules apply when suing governments • Class actions o Most Canadian provinces allow class actions o Allows a single person or small group to sue on behalf of a larger group of claimants o Benefits  Allows small individuals to take on large organizations  Cost effective way to sue for small but wide-spread claims  Threat of class action may curtail big business behavior • Class action criteria o Common issues among all class members o Representative plaintiff who demonstrates workable plan for fairly representing all class members’ interests o Notification to all potential members of class o Preferable procedure to traditional litigation o Certification by court to allow class action to proceed • Legal representation o Self-representation o Lawyer o Paralegal • Self-representation o You have the right to represent yourself in court o Usually advisable only in simple matters  Remember the saying: a self-represented person has “a fool for a lawyer and a fool for a client.” • Representation by lawyers o Must complete training and be “called to the bar” after passing examinations o Governed by provincial bodies (Law Societies)  Imposes codes of conduct  Investigates and punishes misconduct  Victim assurance funds to compensate for misconduct o Must carry professional liability insurance o Communications are confidential and privileged • Representation by paralegals o A non-lawyer providing legal advice and services o Are regulated in some provinces (eg Ontario) o Regulated Paralegals:  Require some training and examinations  Have Codes of Conduct  Can be punished for wrongdoing  Must carry liability insurance  Are limited to certain types of work • Lawyers and paralegals compared o Paralegals may be less expensive than lawyers o Paralegals may be more specialized in their areas o Lawyers require more rigorous training o Lawyers can assist on a wide variety of matters, while Paralegals are restricted in their practice options o Not all provinces yet require Paralegals to be licensed o Paralegals may not work on contingency fee basis • Pleadings o Documents used to identify issues and clarify dispute  Drafted by a Party  Issued by Court  Served on opposing party o Parties:  Plaintiff or Claimant: person starting lawsuit  Defendant: person defending lawsuit • Types of pleadings o Statement of Claim  Used by plaintiff to start lawsuit • Some provinces use “writ” before a statement of claim  Outlines the dispute and states facts and desired remedies o Statement of Defence  Defendant should file within time-limit  Sets out defendant’s version of facts and denies liability o Counterclaim  Claim the defendant makes against the plaintiff  Defendant may combine defence and counterclaim in a “Statement of Defence and Counterclaim” o Statement of Defence and Counterclaim  Prepared by plaintiff to defend against counterclaim o Third Party Claim o Reply  Filed by plaintiff to dispute anything in the Statement of Defence o Demand for Particulars  Either party may require opposing side to provide additional information or clarify pleadings • Limitation periods o Period within which action must be started o General limitation period:  2 years from date plaintiff discovered (or ought to have discovered) the cause of action o Several exceptions to general rule depending on claim:  eg 20 years to recover land  eg 7 days to sue city for damages from poor road repair o Late claim generally unenforceable • Pre-trial activity o Documentary discovery o Examinations for discovery  Information gathered under oath outside court o Pre-trial conference  meeting between lawyers and judge to encourage settlement o Mandatory mediation (in Ontario and Alberta) o Settlement: resolving dispute before trial • Trial o Decision makers: judge and jury, or judge alone  Jury is very rare in civil litigation, more common in criminal  If jury, judge determines law, jury determines facts and applies law o Evidence: information provided by witnesses  Ordinary witnesses  Expert witnesses  Judge determines admissibility of evidence o Burden of Proof  Criminal: beyond a reasonable doubt  Civil: balance of probabilities o Criminal litigation outcomes: guilty or not guilty  Fine or imprisonment for conviction o • Enforcement in litigation o Winning a judgment does not guarantee judgment debtor will pay o Winning party must “enforce” their judgment o Enforcement techniques include:  Garnishee income  Seize and sell judgment debtor’s assets  Court officials and others such as sheriff can help • Appeals o A party may appeal a decision to a higher court  Appellant: party disputing lower court decision  Respondent: party supporting lower court decision o No new witnesses or evidence o Focus on law rather than fact  Overrule any errors of law, but only palpable and overriding errors of fact o Normally a panel of three or more judges  Majority decision prevails  Disagreement expressed through judge’s dissent o Effect of appeal judgements  Affirm decision below  Reverse decision below  Vary decision below  Send back to lower court for retrial • Costs o Expenses incurred during litigation (fees and disbursements) o If client believes excessive, can have costs “taxed” o General rule: loser pays winner’s costs (exceptions)  Usually party-and-party costs (partial)  Exceptionally solicitor-and client costs (substantial)  May be awarded if frivolous or vexations action  May be awarded if reasonable offer to settle rejected • Contingency fees o Client pays lawyer only if lawsuit is successful o Not allowed for certain types of lawsuits o Often covers legal fees but not disbursements o Not unusual for fee to be 25 – 40% of winnings o Effect of contingency fees  Benefit: poor parties able to afford litigation  Detriment: legal fees often higher than normal • Canada’s court system o • Supreme court of canada o Highest court in Canada o Nine justices: Chief Justice and eight puisne justices  Appointed by Government of Canada o No right to proceed to Supreme Court of Canada  Court may normally choose which appeals it will hear  You must apply for leave to appeal  Only hears cases of national importance • Appeal and trial courts o Courts of Appeal  Highest court in province or territory  Judges appointed by Government of Canada o Superior Courts  Hears civil law trials, and serious criminal matters  Judges appointed by Government of Canada  Occasionally hears appeals from lower courts • Federal courts o Three specialized courts:  Tax Court: disputes regarding payment of taxes  Federal Court, Trial Division • Trials concerning federal division of powers areas  Federal Court, Appeal Division • Appeals arising from Trial Division and Tax Court o Judges are appointed by Government of Canada • Provincial courts o Judges are appointed by provincial government  Family Court (eg support payments)  Youth Court (eg young offenders, neglected children)  Criminal Court: less serious crimes  Small Claims Courts • Usually division of Provincial Courts (except Ontario) • Small claims court disadvantages o Geographical limits  Normally must sue where event occurred or defendant lives o Types of claims: money or goods  No federal issues o Types of remedies: cannot award equitable relief o Monetary limits:  $6000 - $135,000 depending on jurisdiction • Court hierarchy and precedent o Hierarchy determines appeal route o All hierarchies end with Supreme Court of Canada o Also determines what decisions are binding on courts  Doctrine of Precedent  Judge must follow similar decisions from courts higher in same hierarchy  Other court decisions may be persuasive but not binding o Rule of Law: solve disputes based on law, not opinion • Administrative tribunals o Body that resolves issue and disputes o Somewhere between the government and a court  e.g., Human Rights Tribunals, Labour Relations Board, Competition Tribunal o Exercise a “quasi-judicial” function o Some are informal, some operate like courts o Decision makers generally experts in field, seldom judges • Judicial review o Administrative tribunal decisions are highly respected and not easily overturned o Can sometimes seek judicial review by a court on substantive or procedural questions  Standards of judicial review for substantive decisions: • Reasonableness standard: court defers to tribunal’s expertise, only overturns unreasonable decisions • Correctness standard: court may overturn any error • Judicial review: substantive decisions o To chose between two standards of review, court looks to doctrine of precedent o If standard not set by doctrine of precedent, court asks:  Is decision protected by a privative clause?  What is tribunal’s expertise compared to court’s?  What purpose did government intend tribunal to serve?  What is nature of the issue under review? • Judicial Review: Procedural Decisions o Normally on basis that rules of natural justice (or procedural fairness) were not followed o A tribunal is bound by rules of natural justice:  If the governing legislation indicates it is  If court determines it is after considering: • Nature of decision (was a specific dispute resolved?) • Relationship between decision maker and affected party • How the decision affected the party’s rights and interests • Remedies on Judicial Review o Court can issue:  Writ of certiorari: quash an administrative decision  Writ of prohibition: orders tribunal not to proceed with matter  Writ of mandamus: directs tribunal to perform duties correctly  Declaration: provides enforceable statement of parties’ rights and obligations • Alternative dispute resolution (ADR) o ADR is dispute resolution outside of court o Litigation:  slow, expensive, unpredictable, adversarial, public  Limited remedies, sometimes plaintiff just wants apology or explanation (but see some provinces Apology Acts) o ADR  quicker, cheaper, controlled, cooperative, private  sometimes ADR is mandatory, usually voluntary • alternative dispute resolution (ADR) o ADR is dispute resolution outside of court o Litigation:  slow, expensive, unpredictable, adversarial, public  Limited remedies, sometimes plaintiff just wants apology or explanation (but see some provinces Apology Acts) o ADR  quicker, cheaper, controlled, cooperative, private  sometimes ADR is mandatory, usually voluntary • types of ADR o Negotiation: discussion aimed at settling a dispute o Mediation: mediator assists with discussions aimed at settling dispute  Mediator’s decisions are non-binding o Arbitration: dispute resolved by an arbitrator  Arbitrator’s decision is binding on parties  Process may be informal or court-like o Also Online Dispute Resolution (ODR) in Chapter 19 • Litigation and ADR Compared o • Law suit = “action” • Cause of action (legal reason you are suing) o Breach of contract o Tort of battery/trespass • Plaintiff (complaint) the one that is suing, complaining about something (pi sign) • Defendant (the one being sued) (delta sign) Chapter 1: Case 1 • No obligation to deliver the machine to inga o She cant pay for the service o They don’t have to fufill the side to deliver o Principles of contract • What sort of considerations might come up o Ethics (Consequences, Fairness, Rights/Duties, virtue) o If she goes bankrupt she fails her creditors, the economy falls, less supply to the market (her crop) o If the company has shareholders, must look at rights and duties Week 3: Chapter 3: Introduction to Torts • Tort o A tort is a failure to fulfill a private obligation imposed by law o Tortfeasor is a person who commits a tort o Tort law includes almost every sort of private law wrong outside of breach of contract o Tort law discourages people from committing private wrongs by requiring them to compensate victims • o Same event may be both a tort and a crime o eg beating is both tort of battery and crime of assault • Torts and Contracts o Both involve primary and secondary obligations  Breach of primary obligation creates secondary duty • Tort • Primary duty: do not harm another • Secondary duty: compensatory damages o Contract  Primary duty: fulfill your promises  Secondary duty: compensatory damages • • Types of Torts o Torts law tries to balance competing interests o o Tort law therefore focuses on mental culpability, on basis of strict liability, intention, or carelessness o • Intentional Torts o Occur when a person intentionally acts in certain ways o Meaning of “intention” differs depending on tort:  Some require intention to harm plaintiff (See Chap. 5) • Protects financial interests from purposeful harm o eg inducing breach of contract, intimidation o Some require only intention to act a certain way (Chap. 4)  Protects valuable interests such as physical safety and freedom • eg battery, false imprisonment • Negligence Torts (Ch 5, 6) o Occurs when a person acts carelessly  eg negligence, product liability, professional negligence, occupier’s liability, nuisance o Activity is permitted if reasonable in circumstances o Will be dealt with in detail in Chapter 6 • Strict Liability Torts o Liability regardless of intention or carelessness o Create special problems for risk management  Liability imposed simply because defendant responsible for situation that cased harm o Strict liability torts are rare, limited to extraordinarily dangerous activity  activity permitted, but liability imposed for any harm o Examples: livestock, ownership of wild animals • Liability Insurance o Unexpected tort liability imposes challenges for risk management o Liability insurance can be used to manage tort liability  Contract in which insured pays insurance company to • Defend claims against insured • Indemnify insured for loss if held liable  Does not normally cover all torts of insured • Vicarious liability o Being held liable for torts committed by another o Common business risk  employer often vicariously liable for employees’ torts o Justifications for vicarious liability  Enhances compensatory function  Enhances deterrence function  Requires businesses to bear costs of operation • Scope of vicarious liability o Vicarious liability only for employee torts committed in course of employment:  Employee performing employer authorized actions, or acts closely connected thereto o Businesses not liable for torts committed by independent contractors:  Vicarious liability risk can be shifted by hiring independent contractors instead of employees • Effects of vicarious liability o Victim can sue both employer and employee  Employees are directly liable for their own tort  Employers maybe vicariously liable for employee’s tort • Employer normally entitled to indemnity from employee, however rarely enforced o Employer may also be directly liable if it committed a separate and independent tort  eg careless training of careless employee o • Remedies in Tort o General remedies for torts  Damages (order for monetary payment) • Compensatory damages • Punitive damages • Nominal damages  Equitable remedy: Injunction • Compensatory Damages o Backward-looking  Plaintiff monetarily placed as if tort never occurred • Compare to forward-looking contractual damages  Limitations • Remoteness: unless an intentional tort, no liability imposed if loss not reasonably foreseeable • Mitigation: no liability for losses a plaintiff unreasonably failed to minimize or avoid • Other Remedies o Punitive Damages: punish outrageous, harsh, vindictive, malicious, or reprehensible behavior  In Canada, available only in exceptional circumstances o Nominal Damages: symbolically recognize commission of tort, even though plaintiff suffered no damages o Injunction: order to act or refrain from acting • Alternative Compensation Schemes o Compensation schemes outside of tort law o Compensation based on injury rather than wrong o Paid by central fund rather than tortfeasor o Examples include:  Workers’ compensation schemes (all provinces)  No-fault insurance schemes (some provinces) • Torts vs Alternative Compensation o • Worker’s Compensation o Created because job related injuries are common o Involves a series of trade-offs  Workers normally lose right to sue in tort for workplace injuries, but may claim compensation from a fund  Employers must contribute to liability fund, but escape risk of tort liability for workers’ injuries  Employers may pass liability fund costs to consumers through product and service pricing • No-Fault Automobile Insurance o Compensation normally available regardless of fault  Manitoba and Quebec: No right to sue in tort, but can claim compensation from fund  British Columbia: Right to no-fault exists alongside right to sue in tort  Saskatchewan: Victim chooses tort or no-fault coverage  Ontario: No-fault system prevents tort action unless harm especially serious Week 4: Ch 4: Intentional Torts • Intentional torts o Occur when a person intentionally acts in certain ways, rather than merely acting careless o Meaning of “intention” differs depending on tort:  Some require intention to harm plaintiff (see Chapter 5)  Others require only intention to act a certain way • eg intent to build a fence, whether or not you knew it was on my land (tort of trespass to land) • These torts are examined here in Chapter 4 • Assault o Definition  To intentionally create reasonable belief that offensive bodily contact is imminent o Purpose of tort  Discourages threats and maintains peace • Elements of assault o Reasonable belief of imminent offensive bodily contact:  Reasonable: even if defendant lacked ability (eg unloaded gun)  Belief: Actual bodily contact irrelevant (eg missed punch)  Imminent: distant threat insufficient (eg kick you next week)  Offensive: even if not harmful or frightening (eg threat to punch even if too small to hurt victim) • Battery o Definition  To intentionally create offensive bodily contact o Purpose of tort  Discourage violence and maintain peace • Elements of battery o “Bodily contact” broadly defined o “Offensive” generally excludes normal social interactions  includes actions not harmful (eg unwanted life-saving blood transfusion) o Risk management  To avoid vicarious liability, employers should train employed security personnel to use reasonable force • Assault and battery o Frequently committed together o Occasionally committed apart  Threat of contact without actual contact (assault only)  Actual contact without warning (battery only) • Invasion of privacy o Currently no general tort of “invasion of privacy”  Wish to support freedom of expression and information  Desire to strike fair balance • eg courts reluctant to award damages to celebrities for bad publicity when they seek out good publicity o Losses are often intangible and difficult to quantify  eg embarrassment • indirect protection of privacy o • Developments in privacy law o Some jurisdictions appear to be developing a tort of invasion of privacy o Canadian courts have imposed liability for:  Surveillance camera to monitor neighbour’s backyard  Unauthorized use of photograph in magazine  Unauthorized disclosure of HIV-positive status • Statutory protection of privacy o Crime of voyeurism: s. 162, Canada’s Criminal Code  Secretly observing or recording a person who has reasonable expectation of privacy if nude or in place reasonably expected to be nude, or engaged in sexual activity o Privacy Legislation (eg Privacy Act of BC, Manitoba, and Saskatchewan) • False imprisonment o Definition  Unjustified confinement within a fixed area o Purpose of tort  protects individuals’ freedom of movement • elements of false imprisonment o Unjustified confinement within a fixed area o Unjustified: no consent  eg bus passenger cannot demand unscheduled stop o Confinement: includes physical and psychological o Complete confinement in fixed area: not applicable if alternate path, or plaintiff can easily escape o Without authority to confine, or “make an arrest” • Powers of arrest and detention o Imprisonment may be justified by Criminal Code o o Risk management:  Call police instead of personally arresting suspect  Be cautious of directing police officer to make arrest • Malicious prosecution o Definition  Improperly causing the plaintiff to be prosecuted o Elements of tort  Plaintiff must prove defendant started proceedings • Out of malice or for some improper purpose • Without honest belief in guilt on reasonable grounds, and • Plaintiff was eventually found not guilty of crime • Trespass to land o Definition  Intentional interference with land o Elements of trespass to land  Lack of consent  Lack of legal authority (some public officials have authority) • Trespass to land by customers o Consent and customers  Customers normally have consent to access business during business hours  Businesses may revoke consent for certain customers  Businesses cannot violate human rights when revoking consent • Remedies for trespass to land o Damages: compensatory, nominal, or punitive o Injunction:  Preventing ongoing trespass  Requirement to remove trespassing structure o Removal of Trespassers  Arrest of trespassers  Use of reasonable force in arrest • Interference with chattels o Chattels are moveable forms of property o Category includes several torts o • Trespass to chattles o Definition  Interference with plaintiff’s chattels o Elements of tort  Interference includes taking, destroying, using, and sometimes touching o Remedy  Usually compensatory damages • eg replacing destroyed chattel or repairing damaged chattel • conversion o definition  Interference serious enough to justify forced sale o Remedy  Defendant required to buy chattel at market value at time tort committed • Test for seriousness in conversion o Court considers  Degree of ownership or control exercised by defendant over chattel  Degree of defendant’s intention to assert right inconsistent with plaintiff’s right to chattel  Duration of defendant’s interference  Expense and inconvenience caused to plaintiff • Conversion: risk management o Innocent purchaser of stolen goods may be liable for conversion o Risk management  Use every reasonable effort to ensure vendors have authority to sell to you o Exception to conversion  Does not apply to stolen money • Detinue o Definition  Failure to return chattel plaintiff is entitled to possess o Elements of tort  Normally requires demand by plaintiff for return o Remedy  Usually compensatory damages  Sometimes return of chattel to plaintiff • not available for trespass or conversion • reception o Remedy available for trespass to chattels, conversion, and detinue o Definition:  Re-acquisition of chattel by owner • eg grab item from shoplifter o Risk management  Owner cannot use unreasonable force  Owner risks liability for battery • Defences to intentional torts o Complete defence: Tortfeasor released from all liability o Partial defence: Damages reduced due to plaintiff’s own responsibility for harm o • Defence of consent o Definition  Plaintiff voluntarily agrees to interference with their body, land, or chattels o Consent must be free and informed  eg not valid of plaintiff tricked or threatened o Consent usually revocable, and can be either:  Express (eg surgeon detailed consent for procedure) or  Implied (eg normal hits in hockey game) • Defence of legal authority o Definition  Provides a person a lawful right to act in a certain way o Legal authority may  Arise through common law or  Be provided by statute o Examples  Power of arrest by police officer  Meter readers entering land to perform job duties • Self-defence & third party defence o Definition  Right to protect oneself from actual and threatened violence o Elements  Defence to torts of assault and battery  Available only if person at immediate risk  Cannot use more force than necessary in circumstances o Also allowed to defend third party  eg parent protecting child • limits to defence of property o Self-defence and defence of third party are broadly defined because they protect human life and well-being o Defence of property less generous o Must use only reasonable measures to protect property o If only threat is to land and chattels, may never be reasonable to deliberately cause death or serious injury • Defence of necessity o Definition  Defendant’s actions are justified by an emergency o Elements  Immediate action must be required to avoid calamity  Benefits flowing from conduct weighed against harm • eg doctor giving urgent medical care to unconscious patient • eg tearing down house to prevent spread of fire o Usually a complete defence but sometimes only partial defence o Consider American case:  Emergency caused by storm caused ship to moor to dock  Damage caused to dock during storm  Trespass was justified, however compensation required for damages • Partial defences to intentional tort o Allows court to reduce damages on basis of plaintiff’s own responsibility for injury o Applies even though defendant committed an intentional tort o Includes (among others)  Provocation  Contributory negligence • Provocation o Definition  Words or actions that would cause a reasonable person to lose self- control o Typically, defendant “snaps” after being taunted or insulted o Tied to torts of assault and battery o Defendant liable for attack, but plaintiff’s damages are reduced • Contributory neglicence o Definition  Occurs when plaintiff partially responsible for injury defendant tortiously caused o Damages reduced to reflect plaintiff’s contribution to harm o Elements of the defence differs through Canadian jurisdictions  some divide responsibility on basis of parties’ fault • allows defence to apply to any tort, including intentional o some divide responsibility on basis of parties’ negligence  courts have found the defence difficult to apply to intentional torts as concept of negligence does not naturally fit intentional torts lec 5: ch 5: Miscellaneous Torts Affecting Business • overview o conspiracy o intimidation o interference with contractual relations o unlawful interference with economic relations o deceit o occupiers’ liability o nuisance o the rule in Rylands vs Fletcher o defamation o injurious falsehood • intentional torts o Occur when a person intentionally acts in certain ways, rather than merely acting careless o Meaning of “intention” differs depending on tort:  Chapter 4 torts require mere intention to act a certain way  Some torts require intention to harm plaintiff • Includes knowledge by tortfeasor that injury was reasonably foreseeable • These torts are examined here in Chapter 5 • Conspiracy o Definition  Two or more persons agree to act together with primary purpose of causing plaintiff to suffer financial loss o Aggressive competition by an individual generally fine o Plaintiff must prove  If actions lawful, primary purpose was to hurt plaintiff  If actions unlawful, merely that defendants should have known their actions may hurt plaintiff • Intimidation o Definition  Loss results from threat to commit unlawful act o Plaintiff must prove  threat to break duty in tort, contract, or crime  intimidated party submitted to threat o Plaintiff need not prove defendant intended to cause loss or damage o May involve two or three parties  • Interference with contractual relations o Definition  disruption of contract between plaintiff and another o Risk management  danger in luring away competitor’s customers  danger in luring away competitor’s workers o Forms of interference with contractual relations  direct inducement to breach of contract  indirect inducement to breach of contract • direct inducement to breach contract o Directly cause breach with plaintiff  e.g., convince customer to break agreement, or employee to quit job o Plaintiff must prove  defendant knew about contract  defendant intended to cause breach of contract  defendant actually caused breach of contract  plaintiff suffered loss • indirect inducement to breach contract o Indirectly cause breach with plaintiff  eg prevent employees from going to work, or steal worker’s tools to prevent performance o Plaintiff must prove  same factors as direct inducement  plus defendant’s actions were themselves unlawful • unlawful interference with economic relations o Definition  act intended to cause economic loss to plaintiff o Newly emerging tort: Reach MD vs PMAC o Plaintiff must prove  intent to injure plaintiff (act directed toward plaintiff)  unlawful or illegal act (unauthorized action sufficient)  plaintiff suffered economic loss • deceit o Definition  intentional known misleading statement made with intent to mislead plaintiff which causes loss o Plaintiff must prove  defendant made false statement • includes half-truths, failure to update information, and silence when defendant has duty to disclose  defendant knew statement was false or was reckless in determining truth • elements of deceit o Plaintiff must prove (cont’d)  defendant intended to mislead plaintiff  plaintiff reasonably relied on statement • generally unreasonable to rely on puff, prediction, or opinion  plaintiff suffered loss o Risk management  To avoid liability, business people should not only avoid lying, but also creating the wrong perception • Occupier’s liability o Definition  Requires an occupier of premises to protect visitors from harm • Occupier: person with substantial control of premises • Premises: includes land, ships, trains, planes, elevators, etc • Visitor: any person who enters onto premises o Occupiers’ liability differs across jurisdictions • Occupiers’ liability: traditional common law o Traditionally, occupiers’ obligation varied with type of visitor o • Challenges with traditional rules o Categories are too broad  eg burglar and curious child both trespassers o Difficult to distinguish categories  eg uncertain economic gain: licensee or invitee? o Visitor’s status may change over time  eg unruly customer: from invitee to trespasser • Occupiers’ Liability: Modified common law o Variations between categories eliminated  duty of common humanity to all trespassers  specific duty formulated to reflect facts of case  licensee and invitee generally treated same  Some jurisdictions (Newfoundland and Labrador) require occupiers to use reasonable care toward all lawful visitors • Occupiers’ liability: Statutory law o Six provinces enacted Occupier Liability legislation  Alberta, BC, Manitoba, Nova Scotia, Ontario and PEI o Another (New Brunswick) removed the tort of Occupiers’ Liability, using tort of negligence instead • Statutory changes to occupiers’ liability o Duty applies to condition of premises and activities  Common law applied to condition only o Standard of care no longer related to type of visitor  General requirement to use reasonable care  Some exceptions for adult and other trespassers o Liability can be avoided by issuing warnings o Landlord now liable for failure to repair under lease  no duty at common law because not “occupier” • nuisance o Definition  interference with use and enjoyment of plaintiff’s land o Involves tensions between competing uses of land • forms of nuisance o Physical damage: vibrations cause foundations to crack o Impaired enjoyment: nauseating stench from pig farm o Non-intrusive: brothel attracts traffic and criminals to neighbourhood o Activities not likely to be held a nuisance  Blocking view or sunshine  Ugly building reducing property value • Determining if unreasonable interference o Courts consider a number of factors  nature of neighbourhood  time and day of interference  intensity and duration of interference  social utility of interference  defendant’s motivation • defences to nuisance o Generally interpreted very narrowly  consent to activity  statutory authority • defendant acted pursuant to legislation • nuisance inevitable result of statutory action o Moving to nuisance is not a defence  irrelevant who was in neighbourhood first • remedies for nuisance o Compensatory damages to repair losses o Injunction to prevent future losses  Injunction unlikely if  Damages sufficient to compensate, or  Will create intolerable hardship to defendant or community • eg huge loss due to town’s single factory being closed down o Sometimes injunction and compensatory damages awarded together • Rule in Rylands v Fletcher o Definition o strictly liable for non-natural use of land if something escapes their property and injures plaintiff o Plaintiff must prove  non-natural land use created special and unusual danger  escape from defendant’s land  loss or injury to plaintiff o No need to prove fault or carelessness • Defences to Rule in Rylands v Fletcher o Plaintiff consented to non-natural land use o Unavoidable act of God or third party caused escape o Injury inevitable result of defendant’s exercise of statutory authority o Risk management:  Businesses should take special precautions when engaging in non-natural land use • Defamation o Definition  Making a false statement that could lead a reasonable person to have lower opinion of plaintiff o Purpose: to protect reputations • Elements of defamation o Plaintiff must prove  statement reasonably refers to plaintiff • irrelevant that defendant did not intend reference • plaintiff must be living person • group statement must refer to plaintiff personally  statement could hurt plaintiff’s reputation  statement was published to third party • defamation o Includes any communication (eg spoken, written, gestures, documents, and puppet shows) o Risk management:  Business faces special risk when trying to enhance own reputation by disparaging competitors  Social media presents risks to employers • Vicarious liability for employees’ defamation, and • Directly as potential publisher of defamatory material • Defences to defamation o Include:  Justification  Privilege: encourages free speech • Absolute privilege • Qualified privilege  Fair comment: encourages useful debate on significant issues o Justification: statement is actually true  honest and reasonable belief in truth insufficient • defence: absolute privilege o Complete immunity from liability o No liability even if statement made in bad faith o Limited to statements made:  during parliamentary proceedings  between high government officials dealing with government business  by a judge, lawyer, litigant, or witness in legal proceedings  between spouses • defence: qualified priviledge o Applies when legal, moral or social obligation to make a statement to someone with a similar duty or interest in receiving it o Liability if statement made in bad faith or motivated by malicious purpose o Important application of this defence arises under the label of “public interest responsible journalism” • Defence: Fair Comment o Expression of an opinion on a matter of public importance:  Opinion must be informed  Opinion must relate to issue of public interest  Defence applies as long as the opinion in question could honestly be held by some person – even if the defendant is prejudiced or opinionated • Remedies for defamation o Usually compensatory damages to repair losses and sometimes for personal distress o Sometimes punitive damages for outrageous conduct o Injunction to prevent defamation  rarely awarded due to concern for free speech  requires clear evidence that defamation is likely • injurious falsehood o Definition  false statement about a business causes loss to business o Tort may take variety of forms  Slander of Title: false statements that plaintiff does not own land, making sale difficult  Slander of Quality: false disparagement of plaintiff’s products  Other false statements: eg that property haunted • Elements of injurious falsehood o Plaintiff must prove  defendant made false statement to third party  defendant acted out of malice  persuasive evidence that false statement caused loss Chapter 6: Negligence • overview o Duty of care o Breach of the Standard of Care  Professional negligence  Product liability o Causation of Harm o Defences  Contributory negligence  Voluntary assumption of risk  Illegality • tort of negligence o Definition  Careless causing of injury to the plaintiff o Most important tort of all o Negligence requires a balancing of social values, else individuals would not engage in useful but risky activity  compensation for carelessly caused harm  encouragement of socially useful activities  flexibility arises at each stage of analysis • elements of negligence o To succeed with negligence claim, plaintiff must prove  Duty of care was owed to plaintiff  Tortfeasor breached of standard of care  Breach of standard caused harm to plaintiff o Defendant may then avoid liability by proving  Contributory negligence  Voluntary assumption of risk or  Plaintiff injured during illegal behaviour • Negligence Element 1: Duty of Care o A duty of care exists if defendant is required to use reasonable care to avoid injuring plaintiff  duty of care exists: defendant may be liable  no duty of care: defendant not liable for negligence • determining existence of duty of care o First, look to the Common Law for precedent o If no precedent, apply following test:  Was it reasonably forseeable that plaintiff could be injured by defendant’s action?  Was there sufficient proximity between parties? • Special rules apply to careless statements  If yes to first two questions, should duty be denied for policy reason? • Reasonable foreseeability o Objective test  “would reasonable person have foreseen risk of loss?” • sufficient if not far-fetched (even if not probable) o Purpose of requirement: fairness  unfair to hold defendant liable for every loss • impossible to prevent unforeseeable event  unfair to deny liability for subjective deficiencies • plaintiff entitled to expect reasonable conduct • proximity o Proximity means close and direct connection, including  Physical: eg hit by swung baseball bat  Social: eg bond between parent and child  Commercial: eg alcohol sold to driver  Direct causal connection: eg loss occurred directly related to careless activity  Reliance: eg continuing an initial voluntary activity that people have come to rely on • Proximity and careless statements o Negligent statement: common business risk  increasingly based on information o Careless statements differ from careless actions:  need for precaution less clear with words • “words are more volatile than deeds” • words more likely to cause pure economic loss o Courts apply special rules when determining existence of duty of care related to statements o Liability more likely if  defendant claimed special knowledge  statement communicated on serious occasion  statement made in response to inquiry  defendant received financial benefit  statement of fact rather than pure opinion o Liability less likely if  statement accompanied by disclaimer o Test for duty of care existing for statements  Defendant knew that plaintiff, either individually or as member of defined group, might rely on statement, and  Plaintiff relied on the statement for its intended purpose o Risk management  Be careful about providing information and advice  Use disclaimers  Be careful relying on statements made by others • Duty of care and policy  Sometimes hard to distinguish proximity from policy  proximity: focus on parties’ relationship  policy: focus on effect existence of duty would have on society and legal system.  Courts ask if recognition of duty would: • open the floodgates • Interfere with political decisions • Hurt a valuable type of relationship • Examples of policy’s effect on duty o No duty of care on mother to unborn child  fear of intolerable burden on pregnant women o No duty on employer for carelessly causing employee mental distress on the job  Would be a considerable intrusion into the workplace o No duty on regulatory bodies for careless professionals  Floodgates would open, and political and judicial interference • Negligence Element 2: Breach of Standard of Care o Standard of care: how defendant with duty must act  liability possible only if standard of care breached o Standard of care based on reasonable person test  “how would a reasonable person act in this situation?”  objective test • defendant cannot hide behind own deficiencies • plaintiff entitled to expect reasonable conduct • standard applied at time of alleged breach (no hindsight) • Formulation of Standard of Care o Reasonable person adjusts conduct to situation  reasonable foreseeability of risk: • any realistic risk may require precaution • • Standard of Care for Professionals o Standard is higher than mere reasonable person  must act as reasonable professional  no allowance for inexperience  no allowance for exaggerated credentials o Standard may be higher still for specialist or expert  eg must act as a reasonable expert would act • Limits to professional standard o Unfair to judge reasonableness using hindsight o Errors of judgment are different than carelessness o Compliance with approved practice may remove liability (unless approved practice itself is careless) o Compliance with a statutory standard may also protect a defendant • Standard of care: product liability o Injury caused by manufactured products  American courts, product liability uses strict liability • manufacturer liable for any defects  Canadian courts use negligence • manufacturer liable only for careless defects o In product liability actions, easy to prove duty is owed, so case usually turn on whether standard was breached • Standard: product liability o Types of product liability  careless manufacture of specific item • liability is likely to be imposed  careless design of product line • widespread issue: narrower scope of liability based on balancing  careless failure to warn of risk of harm • specific requirement reflects circumstances • manufacturer, seller, or installer may be liable • “learned intermediary rule” in appropriate situations • Negligence element 3: causation of harm o Liability only if breach of standard caused loss o Causation involved a two-step inquiry  step 1: factual causation, primarily question of fact • the but-for test  step 2: legal causation, primarily question of fairness • the remoteness principle o no liability – even if factual causation – if unfair • causation: step 1 o General approach: but-for test  If the defendant had not acted carelessly, would the plaintiff still have suffered the same loss? • if yes: defendant did not cause loss, so not liable • if no: defendant did cause loss, so may be liable • causation: step 1 rules o Proof on balance of probabilities (at least 51%) o All-or-nothing approach: full compensation if probable causal connection, none if not o Breach was a cause – not necessarily only cause o Several defendants may cause single injury  joint and several liability to plaintiff  proportionate contribution between defendants o Alternative test if but-for test creates injustice • Causation: Step 2 Remoteness o Even if defendant caused harm, no liability if loss was too remote  reasonable foreseeability of harm • sufficient if not far-fetched (even if not probable)  reasonable foreseeability to type of harm is relevant • not whether the manner in which harm occurred was not reasonably foreseeable • thin skull principle o Thin skull refers to those unusually vulnerable to loss o The rule: if some harm reasonably foreseeable to normal person, thin skull person entitled to full recovery  some harm reasonably foreseeable • plaintiff can recover for entire injury  if no harm reasonably foreseeable • plaintiff cannot recover for any part of injury • remoteness and intervening acts o Intervening act is an event occurring after defendant’s carelessness that causes subsequent harm o The rule: liable if foreseeable chain of events  eg patient infected while in hospital for surgery • defendant liable for injury requiring surgery • defendant also liable for foreseeable infection  eg patient struck by lightning in hospital parking lot • defendant liable for injury requiring hospitalization • defendant not liable for unforeseeable accident • defences o Duty + breach of standard + causation of loss = presume liability o Defendant may limit or avoid liability through defence o Most important negligence defences  contributory negligence  voluntary assumption of risk  illegality • contributory negligence o Basis: loss is caused partly by defendant and partly by plaintiff’s own carelessness  forms of contributory negligence include unreasonably entering into dangerous situation, contributing to creation of accident, or contributing to extent of injury o Effect of defence  apportionment of responsibility  damages reduced to reflect plaintiff’s contribution • voluntary assumption of risk o Basis: plaintiff freely accepted both physical and legal risk of injury (gave up right to sue for injury) o Effect of defence  complete defence (not merely apportionment)  courts interpret this narrowly because of harsh result o Risk management  consider proper use of effective exclusion clauses (see Chapter 9) • illegality o Basis: plaintiff injured while engaged in illegal activity o Defence applies only when plaintiff’s claim undermines integrity of legal system, which occurs when  plaintiff tries to profit from wrongdoing  plaintiff tries to escape criminal penalty o Effect of defence  Complete defence (not merely apportionment)  Courts interpret narrowly because of harsh result Chapter 7: • Overview o Comparing torts and contracts o Intention to create legal relations o Offer o Acceptance • Intro to contracts o Contract is a legally enforceable agreement o Promises and contracts  simple promise is not legally enforceable  contractual promise is legally enforceable o Essential elements of a contract  intention to create legal relations  meeting of the minds (offer and acceptance)  exchange of value (consideration)  capacity and legality • torts and contracts o Both involve primary and secondary obligations  Breach of primary obligation creates secondary duty • Tort: o Primary duty: do not harm another o Secondary duty: compensatory damages • Contract o Primary duty: fulfill your promises o Secondary duty: compensatory damages o • Intention to create legal relations o Parties must intend to create legal relations o Objective test of intention  what would a re
More Less

Related notes for LAW 122

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit