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University of British Columbia
COMM 393

COMM 393 January 08, 2013 Readings • pp 32-46 • pp 187-188 Types of Law 1. Procedural o The laws that organize the legal system o Method of conducting a trial o Rules of evidence o Process for initiating court action o Machinery through which the Substantive law is enforced 2. Substantive o The law that creates, defines an regulates our rights in society (textbook definition) o Who makes laws? 1. Government – Federal, Provincial, Municipal (10%) • Legislation or Statute Law 2. Courts – Judges have the authority to make laws (90%) • Judge made law • Common law 3. Administrative tribunals • Human Rights Commissions • Labour Relations Board o Laws must be enforceable through government or courts o Laws must have sanctions • Fines, jail 1. Public Law o The laws that govern the relationship between “persons” and the Government (all levels) o Government will ALWAYS be a party to the lawsuit o Examples COMM 393 • Criminal Law • Tax Law • Immigration • Constitutional Law 2. Private / Civil Law o The law that governs the relationship between “persons” o Examples: • Contract Law • Employment Law • Tort law (negligence) As business students, we will be  encountering more of Civil Law in  • Agency our careers. This is where the focus  • Company of the course lies. • Partnership • Land Law • Wills / Estates Criminal Law vs. Civil Law Purpose: PUNISHMENT of the Purpose: COMPENSATE the victim of offender (remove offender from the civil wrong (usually through $$) society), Rehabilitation, Protecting society, Restitution to Victim Who Commences a criminal Who Commences a lawsuit? A Plaintiff action? The “Crown” (government) – represented by the letter ‘R’ Eg. Ellen v. Denis (which stands for Rex or Regina) Eg. R v. Ellen – We known now that this is a criminal case Who had to Prove the Case? Who had to Prove the Case? -The “Crown” -Plaintiff -“Innocent until proven guilty” -“On a balance of probabilities” -How much evidence? “Beyond -51% rule reasonable doubt” -Burden of proof is lower because the consequences are not as severe -Might be a jury (depending on the -Jury 8 members case) -Defendant decides -Jury = 12 jurors (members) -Majority decision COMM 393 -Each side, the defendant and the plaintiff chooses 6 members of the jury -The defendant decides whether or not to have a jury -The jury decides the case if there is a jury – Unanimous decision -If defendant chooses not to have a jury, the judge decides the case • Judges: o Appointed federally o All have multiple law degrees o Must have at least 14 years experience as a trial lawyer • Example of Ellen’s friend: Civil & Criminal Case o Embezzled money and property from her employer, Northlands Golf Course  Worked as an accountant, CA designation o Civil suit possibility: $300,000 value  But, She paid the money back to Northlands  So, they had no further course of action o Who can decide to charge her with a criminal suit?  Only the Crown o Crown took 1 year to make a decision on the case  She lost the case and was sentenced to 1 year house-arrest o CA designation was stripped January 15, 2013 Systems of law 1. Civil Law system (only in Quebec) 2. Common Law system (all other provinces, territories, US, UK, India) 3. Equity system (all other provinces, territories, US, UK, India) 1. Civil law • Comes from the Roman Empery • Most European/South America countries • All laws created by the government • Interpretation of the code by a judge • Rigid, no flexibility – create amendments COMM 393 • Can become outdated • Inconsistent cases – difficult to predict results • Judges cannot make law; they just apply it 2. Common law • Created in the 13 century in the UK • Theory of Precedents – STARE DECISIS (let the former decision stand): Judges must look to past cases (precedents) with similar or identical facts from a higher or equal court to decide new cases • Common law system provides a higher degree of consistency and predictability of results. The system makes it easier for lawyers to provide legal advice. • The main drawback is that it takes a long time to judge cases 3. Equity system Courts of Chancery Principles used: morals, conscience, ethics, fairness Remedies: specific performance, injunctions, rescission While Common Law courts only remedy is money Two courts merged in 1875, but the system remains distinct Today: 2013 Rules A plaintiff can only ask for equitable remedy in BC Supreme Court if 1. The remedy of money $ would be inappropriate or inadequate to compensate the individual 2. The plaintiff acts quickly to bring a court decision (“fast feet”) 3. The plaintiff must have “clean hands” (plaintiff’s conduct can’t be the reason for the lawsuit) 4. To get specific performance the plaintiff must prove that the good or land bargained for in UNIQUE The remedies are always discretionary Example: Ellen receives an offer to by the house ($1million) and she accepts it. Written contract - Completion date for the contract (April 1, 2013) COMM 393 March 1, Another offer $1.1million Ellen phones the first buyer and says she won’t sell/ complete contract. Ellen is going to sell to X. Title hasn’t passed to the first buyer yet.  Anticipatory breach of contract (broken promise) First buyer decides to sue  will win Common law remedy: money $ Equitable remedy: Specific Performance – court order for the parties to live up to their promises. If the second buyer already bought the house – money would be the only remedy *Montane Case Diagram with court hierarchy – supplement material BC Procincial Court: This court has a number of divisions: Youth, Family, Traffic, Criminal (Youth and Adults) and small claims (<25,000) BC Supreme Court: most serious criminal civil cases (>25,000) BC Court of Appeal: only review questions of law BC Provincial Court –appeal – BC Supreme Court – BC Court of Appeal – Supreme Court of Canada (only hear cases of national importance) Tax Court of Canada – appeal – Federal Court of Canada (Trial Division) – appeal – Federal Court of Canada (Court of Appeal) – appeal – Supreme Court of Canada The civil process A civil wrong is committed – litigant consults lawyer; the lawyer will try an alternative dispute method to resolve the dispute out of the court (demand letters, negotiation, mediation). if this is unsuccessful, the plaintiff may instruct the lawyer to commerce a legal action Plaintiff will file a notice of civil claim This notice must be served on the defendant, this service is provided by filling an affidavit of service at the court house. The defendant has 21 days from the date he/she is served with the notice of civil claim to file a response COMM 393 The defendant ill file a response to the civil claims Discovery process Trial (average trial lasts between 3 -4 days) January 17, 2013 Cost 1.Solicitor/Client costs: What you pay lawyer to bring/defend an action for you Hourly $300 to 500 (trial) Fixed fee (will, conveyance of land, incorporation) Contingency: lawyer will take 30-40% of award of money $ should he/she win the case. If case is lost lawyer does not get paid. 2. Party and Party “cost” Judge may award winner in a trial “costs” paid by the loser to partially (40%) compensate winner for his/her solicitor/client costs. Cost based on a published Tariff. Method of Dispute Resolution ideally the parties want control over content, process and outcome + control over process and outcome - negotiation mediation conciliation arbitration adjudication • Negotiation: two or more parties meet face to face to resolve their conflict. This is done without the assistance of another party. • Mediation: a neutral party assists conflicted parties to confer with the goal of resolving differences between them, in a manner that leaves the COMM 393 outcome in the hands of the parties. The neutral third party controls the process but has no control over the content of the discussion or the final outcome. • Conciliation: a neutral third party acts as a go – between with the conflicted parties to assist them in resolving differences between them. He conciliator tends to act as a shuttle diplomat and has more control over content and process. • Arbitration: a third party with particular expertise in certain disputes will be asked by conflicted parties to assist them in listening to them and to make a decision regarding the issues in dispute. The parties have more control over the process than in adjudication, but may have fewer options regard to the appeal of the outcome. • Adjudication/Litigation: a judge listens to the conflicted parties and makes a decision regarding issues in dispute between them, which the parties may accept or appeal. The parties do not have control over the process but may be able to appeal the outcome. Advantages of alternative dispute resolution • Flexibility – the process can be designed to suit the dispute and the parties (in mediation) can reach their own solution • Less expensive • Speed and finality • Confidentiality • Choice of mediator/arbitrator • Less damaging to business relationship Constitutional Law Canada – Constitution Act 1982 Charter of Rights and Freedom was “entrenched” into the constitution. Charter of Rights applies to Government (all levels) and Government “action” (decision making). It prevents the government from creating laws that infringe the Charter. Section 15: Focus on Equality Right: every individual is equal before and under the law. None of the rights set out in the Charter is absolute. Section 1 states that they are all subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Burden of proven shifts to the government. COMM 393 Section 33: permits a legislature to override certain sections. That is, is a statute states expressly that is “shall operate notwithstanding” those specified sections, a legislature… Charter is subject to section 1. All law is presumed valid unless challenged in court. If law is challenged and found unconstitutional  law is declared “ULTRA VIRES” (outside the power) and the law is declared null, it is voided. study page 2 of the supplemental notes Facts  create legal issues (1, 2, 3) Attacking Issue 1: 1. Law: textbook, case and class notes 2. Application: look for plaintiff applies Law to fact – then defendant 3. Conclusion: answer issue  Proceed same reasoning through other issue and overall conclusion. January 22, 2013 Practice Question Issue 1: Can Grace bring her case to the Charters of Rights and Freedom? • Law: Charter is applied to the Government and actions taken by the Government Remedy to a Charter challenge – decision is voided, do not include $ compensations Section 15 • Application: The Charter of Rights do not apply. The action was not taken by a governmental institution. • Conclusion: She will not win Issue 2: Does this case belong in the small claims court? • Law: The government legislation says that the maximum that the plaintiff can sue in the small claims court is $25,000. • Application: Situated in the wrong law and in the wrong court • Conclusion: She will not win Contract Law COMM 393 Contract = K Reduce Damages – favorable in the courtroom Is there a contract? If so, is there a breach of K? *unforeseeable event might make it impossible to complete contract If so, what are the damages? Is there a contract? A K exists only where there are 6 legal elements: • Intent • Offer • Acceptance • Consideration K • Capacity (mental) • Legality The plaintiff has to prove all 6 elements. The defendant has to prove that at least one of the elements does not apply. K do not have to be in writing to be enforced. Two exceptions in BC: 1. K for land (includes sale of land and whatever is on the land, mortgage of land, lease of land > 3 years) 2. Personal guarantee INTENT 1. Both parties must have intend to be bound by their promises 2. Where the parties are dealing in a (commercial) business context, the law presumes intents to exist (can be rebutted, that is, argued against) 3. The law presumes (can be rebutted) there is NO intent in a K between close friends, family members 4. Where intent is an issue, the court asks this question: Would a reasonable person looking at the OUTWARD CONDUCT (objective test) of the parties say they showed intent? (Carlill v. Carbolic Smokeball 1893) OFFER Proposal of some sort (considering there is an intent) Must have clarity and certainty on at least 3 terms: • Parties • Price/exchange • Object of K/ subject matter of K Can be oral or written (K for land and personal guarantees have to be in writing) COMM 393 * Invitation to treat is not an offer. It is a solicitation for an offer * Generally speaking, an ad in a newspaper is a mere invitation, not a offer. Unless, the advertisement asks the buyer to complete an act (Carbolic – the ad invite customer to buy the product, use it and redeem reward if it does not work). January 24, 2013 R. v. 279707 Alberta Ltd. The Court – the criminal charges here consisted of a series of counts. For each of a number of days, the accused was charged with (a) Misleading advertising under s.52 of the Competition Act. and (b) Not supplying bargaining goods advertised under s.57 of the Competition Act. Offer – request to perform some act Should add expire date to avoid problems. If there is no time limit, the judge will determine a reasonable time. Offers lapse/expire 1. when time limit in offer expiries 2. after a “reasonable time” if no time is specified 3. if the offers is rejected 4. if the offer is revoked (withdraw) by offeror. (must happen before acceptance) 5. if a counter offer is made. (any change to the terms of the original offer) Bank  MBA student ($80,000 + 2 weeks) MBA student  Bank ($85,000 + 3 weeks) Bank’s option: accept, reject or counter offer. 6. If either party dies or becomes insane prior to acceptance Livingstone v. Evans 1925 Evans  letter will sell land for $1,800  Livingstone Livingstone  send lowest cash price will pay $1,600  Evans Evans  will not reduce price  Livingstone Livingstone  accept $1,800  Evans Evans sold land to Williams. COMM 393 Livingstone believes there is a K breach  Livingstone sues Evans and Williams to request the land (sue for specific performance). Send lowest cash price (considered a inquiry – no effect on the original offer) Will pay $1,600 (considered a counter offer – open precedents to eliminate offer) Cannot reduce price (Evans consider it as a rejection and Livingstone consider it a counter offer at $1,800) Court found that “cannot reduce price” is considered to be a counter offer. Now Williams might sue Evans for damages. Acceptance Until an offer has been unequivocally accepted (without any charges) there is a K. Acceptance must be the MIRROR IMAGE of the offer Offer should control: 1. terms 2. how long offer is open for 3. how acceptance is made • phone: acceptance is complete when words are HEARD • fax: when received • email: electronic transactions act. Acceptance complete when the record is capable of being retrieved. Can modify these rules in your offer. • Government postal service: postal acceptance rule. If the offer does not stipulate a method of acceptance, accept by same method used to send the offer. If offer does stipulate mode of acceptance: follow instructions. Offer mail  accept by mail. Send email to accept. Company can reject it. Postal Acceptance Rule: If the offer comes by MAIL (without directions on acceptance) or the offer stipulates acceptance by mail or (reasonable to accept by mail): then acceptance is complete when the letter is posted (registered mail). Washington State Co.  offer by mail  Vancouver Co.  accept by mail When K is made? When posted Where is K made? Where acceptance is made?  Vancouver What law applies?  BC law, BC courts have jurisdiction COMM 393 Manipulating, avoiding this issue • acceptance complete upon receipt • forum selection clause – Washington state courts Rudder v. Microsoft Corp. January 29, 2013 Revocation by MAIL is complete when the letter is delivered to the to offeree’s usual address. Can only prove with registered mail. Montane Case Montane v. Schroeder Montane offers to buy building for $215,000 subject to receiving a copy of lease by Sept 10  legal effect: operation of K suspended until the event is fulfilled. If event is not fulfilled K unravels. Schroeder accepted Subject to clause – condition precedent Sept 8 Schroeder faxes Montane a copy of lease. When the condition (subject to) is fulfilled this must be documented 
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