January 08, 2013
• pp 32-46
• pp 187-188
Types of Law
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
o The law that creates, defines an regulates our rights in society
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
• Constitutional Law
2. Private / Civil Law
o The law that governs the relationship between “persons”
• 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.
• 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
-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
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
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
• 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
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
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
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
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
Trial (average trial lasts between 3 -4 days)
January 17, 2013
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
• 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
• Choice of mediator/arbitrator
• Less damaging to business relationship
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
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
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
Issue 1: Can Grace bring her case to the Charters of Rights and Freedom?
Charter is applied to the Government and actions taken by the
Remedy to a Charter challenge – decision is voided, do not include $
The Charter of Rights do not apply. The action was not taken by a
She will not win
Issue 2: Does this case belong in the small claims court?
The government legislation says that the maximum that the plaintiff can
sue in the small claims court is $25,000.
Situated in the wrong law and in the wrong court
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:
• Consideration K
• Capacity (mental)
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
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)
Proposal of some sort (considering there is an intent)
Must have clarity and certainty on at least 3 terms:
• 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
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.
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
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.
Until an offer has been unequivocally accepted (without any charges) there is a
Acceptance must be the MIRROR IMAGE of the offer
Offer should control:
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 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.
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