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MGT393H5 (23)

Class One .pdf

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Manfred Schneider

MGT 393 - BUSINESS LAW Class One – Handout REVIEW OF COURSE CONTENT/OBJECTIVES /TEACHING APPROACH ▯ Note → for Chapter 1 and 2 – focus on classroom coverage WHY STUDY LAW? - can effect success and failure in business - impacts decisions made by businesses ▯ choice of location, product, marketing, etc ▯ protect business ideas and other business property - legal consequences affect profits and losses ▯ liability imposed for poor decisions ▯ opportunities exploited by good decisions - part of risk management and advice we as managers provide - businesses must manage legal risks ▯three steps to risk management -identification: recognition of legal risks -can we be held liable for doing something wrong? -evaluation: assessment of legal risks -what are the chances of something goi ng wrong? -response: reaction to legal risks FORMS OF RISK MANAGEMENT ▯every business decision creates some risk ▯different risks must be treated differently ▯forms of risk management -risk avoidance: elimination of risk -withdraw dangerous product from ma rket -risk reduction: minimization of risk -modify product to reduce danger -risk shifting: make the risk someone else’s problem -buy liability insurance for losses caused by danger -risk acceptance: choose to live with the risk -do nothing WHAT IS LAW?/GENE RAL CONSIDERATIONS UNDERSTANDING THE OPERATION OF OUR LEGAL SYSTEM ▯ political process ▯ environment ▯ sociology LAW IS DYNAMIC ▯ illustration(s) – consider …. pornography, drunken parties [host] etc. WAYS TO CATEGORIZE LAW (discussed in class; MSS example on classroom blackboard) 1 of 6 SOURCES OF LAW ▯ Constitution → includes the Charter of Rights and Freedoms ▯ Federalism → division of powers → ultra vires ▯ ▯ Statutes (e.g. RSO; RSC etc) → see page 5 ▯ common law ▯ integrate – Courts of Equity IMPORTANT → understand the interrelationship between the various sources Common Law → STARE DECISIS PRECEDENTS ▯ consider jurisdiction – same province, Canada ▯ persuasiveness - level of court ▯ date of precedent PURPOSE OF STARE DECISIS ▯ certainty and predictability ▯ continuity ▯ consistency ▯ cases distinguished on their facts ROLE OF THE COURTS ▯ determine the validity of legislation; ▯ interpret legislation; ▯ protect civil liberties; ▯ resolve disputes between private parties OVERVIEW OF COURT STRUCTURE (see text for more details) ▯ trial level ▯ appeal (appellate court(s)) → error of law; error of fact OVERVIEW OF RULES OF CIVIL PROCEDURE (these are not all of the steps) ▯ Statement of Claim ▯ Serve Statement of Claim ▯ Statement of defense rd ▯ Counterclaims; cross claims; 3 party claims (pleadings) ▯ Affidavit of documents ▯ Examination for discovery ▯ Motions ▯ Setting down for trial ▯ Trial 2 of 6 Overview of a civil action Step Description Bringing a claim The plaintiff prepares a statement of claim, which contains a concise statement of material (i.e. legally significant) facts on which the plaintiff relies. The court issues the statement of claim. The plaintiff serves the statement of claim on all defendants and files an affidavit of service with the court. If the defendant does not defend the action, this affidavit of service is necessary for the plaintiff to obtain default judgment. Defending a claim The defendant prepares a statement of defence and serves it on the plaintiff, and files a copy with the court together with proof of service. The defendant may counterclaim against the plaintiff, crossclaim against a co-defendant, or make a 3 party claim against a non-party. Where a defendant fails to deliver a statement of defence within the prescribed time, the plaintiff may obtain default judgment from the court registrar or a judge , depending on the type of claim. Discovery Within 10 days of the exchange of all pleadings, the parties must deliver to all other parties an affidavit that lists all relevant documents in the party's power, possession or control. Copies of the documents are to be made available at a party's request. A party may serve a notice of examination on an opposing party, indicating a time and place where the party must attend to answer questions under oath. The examination is recorded, and where requested, transcribed. Generally, only parties may be examined. Setting an action down for A trial record is required to set an action down for trial. Either party trial may set the action down for trial by serving and filing the trial record. A trial record includes a copy of all pleadings an d orders relating to the trial. If the action is proceeding under Simplified Procedure (Rule 76), a Notice of Readiness for Pre-Trial Conference should be served and filed in order to set the action down for trial. The registrar places the action on the trial list 60 days later, or in some locations, trial dates are fixed by a judge in assignment court. Pre-trial conference The judge, on his or her own initiative or at the request of a party, directs the parties to attend a pre -trial conference before a judge or court officer to attempt to sett le the case or narrow the issues. Trial The plaintiff and defendant make opening statements. The plaintiff's witnesses are examined and cr oss-examined. The defendant's witnesses are examined and cross -examined. The plaintiff and defendant make closing arguments.
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