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Lecture

LAW 122 Lecture Notes - Personal Information Protection And Electronic Documents Act, Contingent Fee, Judgment Debtor


Department
Law and Business
Course Code
LAW 122
Professor
Pnina Alon- Shenker

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Ch 1 intro to law
Studying Law
Success or failure of a business generally depends on ability to minimize losses & max gains.
Legal education plays a critical role in risk management.
Risk Management process of identifying, evaluating & responding to possibility of harmful events
Decisions have legal consequences which may negatively/positively affect profitability, must manage
legal risks.
o Identification: recognition of legal risks Evaluation: assessment of legal risks
o Responding: reaction to legal risks
Forms of Risk Management
Risk avoidance: withdraw dangerous product from market
Risk reduction: modify product to reduce danger
Risk shifting: liability insurance & exclusion clauses Risk acceptance
Nature of Law
Rules & Laws: all laws are rules but not all rules are laws. Law is a rule that can be enforced by
the courts.
Morality & Law: moral wrongs are informally sanctioned. Legal wrongs are formally sanctioned.
Map of the Law
Civil (private) law written law is the primary source of legal rules
o Originated in ancient Rome, Quebec & most of the countries in Europe.
Common law
o Originated in England, Australia, NZ, US, all of Canada except Quebec.
o Operates on the principle of stare decisis (precedent). based on past court decisions
o May also refer to rules that are made by judges rather than by legislatures.
Within Canada’s Common Law System areas may overlap
Public Law Matters of public concern
o constitutional law **
o administrative law
o criminal law **
o tax law
Private Law - Matters of private concern
o The law of torts ** (ch1-6)
o The law of contracts ** (ch7-end)
o The law of property
Sources of Law
Hierarchy of sources of law
o The Constitution
Constitution Act, 1867 division of powers (ss. 91-92)
Constitution Act, 1982 contains the Charter of Rights and Freedoms
o Legislation Parliament or Legislative Assembly
o The Courts decisions (judge made law)
The Constitution
Provides basic rules for legal and political systems.
All laws should be compatible with the Constitution.
Section 52 of the Constitution: The Constitution of Canada is the supreme law.
Any inconsistent law is of no force or effect.
Very complicated to amend the Constitution, amending formula which requires consent of both:
o Parliament
o Legislatures of at least 2/3 of all provinces. Consenting provinces represent at least 50% of
population.
Federalism
Canada is a federal country that has two levels of government:
Federal Represents entire country.
o The Parliament of Canada:

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The House of Commons (elected), The Senate (appointed).
Prime Minister (leader with most members in Commons).
Provincial & Territorial
o Legislative Assembly (elected), No Senate, Premier (leader of party forming government)
Division of Powers
Constitution creates division of powers (ss. 91-92)
Topics divided into federal or provincial authority:
o Federal: criminal law, tax law, banks, copyright, etc.
o Provincial: property and civil rights (such as contracts and torts), the creation of municipalities,
etc.
Federal government holds residual power (e.g. telecommunications & air travel).
Ultra vires legislation Created outside the scope of authority of the enacting body, has no force/effect
(s. 52).
Charter of Rights & Freedoms Part of the Constitution since 1982
Any law that is inconsistent with Charter is of no force & effect (unlike the Bill of Rights, 1960).
Rights and freedoms commonly affecting business:
o Section 2: Fundamental Freedoms (freedom of religion, freedom of expression) “everyone”
o Section 6: Mobility Rights “individual” Section 15: Equality Rights
Democratic rights (ss. 3-5), criminal law rights (ss. 8-14), minority language education (ss. 16-23),
aboriginals & multiculturalism (ss. 25-27).
Economic and property interests are not protected.
To whom does the Charter apply? Actions of government officials/government
The Charter only applies to government action (s. 32).
o Applies to the Parliament and government of Canada and to the legislature and government of
each province and territory and municipalities (i.e. governs statutes, regulations and by-laws).
o Applies to actions of government officials (e.g. the police).
Charter does not apply directly to disputes involving private parties.
While Charter does not apply against private corporations, it may apply in favour of them.
A "person" (as opposed to individual) = corporation.
Limitation on Charter Rights
Section 1:
Rights & freedoms subject to "such reasonable limits prescribed by law as can be demonstrably
justified in a free & democratic society".
A law may limit one of the Charter rights if it is a reasonable limit.
Section 33 (“notwithstanding clause”):
This clause allows Parliament or the legislature of a province to create & enforce a law despite fact that
it violates a Charter right & is not saved under s. 1.
However:
o Only ss. 2, 7-15 can be suspended by s. 33.
o The legislation must explicitly declare its intention to override a fundamental right.
o The legislation is for a maximum life span of 5 years.
o A jurisdiction may only invoke this clause in areas over which it has jurisdiction. (e.g. marriage)
Understanding Charter Cases
Charter cases usually have 4 parts:
1. Court determines whether legislation was within jurisdiction of Parliament or provincial
legislature. If legislation is ultra vires, case ends there. (section 91-92; ultra vires = beyond legal
power)
2. If the legislation is intra vires, court decides whether the legislation violates the Charter section
as alleged. (intra vires = within legal power)
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3. If it does violate, court determines whether it is justified under s.1.
4. Remedies
Charter Remedies
Section 52: Constitution as Supreme Law Law inconsistent with the Charter is “of no force or effect”.
Section 24: Enforcement of Rights and Freedoms court may award “such remedy as [it] considers
appropriate & just in the circumstances”:
- Declaration that the Charter has been
violated.
- Injunction limiting action.
- Striking down the legislation (immediate or
temporarily suspended effect).
- Severance, “reading down” or “reading in”.
change wording
- Damages to person who has suffered a
Charter violation.
Charter Dialogue
Parliamentary supremacy:
o Democratic society
Members of Parliament are elected & accountable, Judges are appointed & unaccountable.
o Ultimate authority should rest with Parliament.
Charter Dialogue:
o Parliament creates laws through legislation, Courts identify Charter violations.
o Parliament may respond by amending or enacting laws to conform to Charter.
Legislation
Laws are created by the Parliament or a legislature (e.g. statutes, regulations, by-laws).
Legislation allows the government to change the law.
It also reflects the will of the people who have elected the Parliament or the legislature.
The Legislative Process:
o A bill is introduced by an MP into the House of Commons.
o Majority support through series of readings. (3)
o Finalized by Royal Assent.
Subordinate Legislation
Rules created by different bodies with the authority of the Parliament or a legislature.
Eg. of Municipality: The Constitution provides the provinces with the power to create municipalities.
o Provinces give municipalities power to pass by-laws.
Courts
Function of Courts
o Interpret and apply Constitution & legislation, Create & apply “common law” (judge-made law)
Common Law Three Different Meanings:
o System: the legal system originated in England.
o Source: rules that are created by judges.
o Type of court: rules made by judges of law in the courts of law (as opposed to courts of equity).
2 sets of courts (law and equity) have been merged. Judges no longer allowed to decide cases simply on
basis of fairness
Ch2 Litigation & ADR (Alternative dispute…)
Litigation = dispute resolution in court (rare)
The risks: Expensive, time consuming, unpredictable, frequently fatal to business relationships
Who can sue & be sued?
Basically, a “legal person”, i.e. an adult, or a corporation.
Unincorporated organizations are not legal persons. Individual members must take responsibility.
The exceptional case of trade unions.
Traditionally difficult to sue government. Today, statutory authority is required.
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