Management and Organizational Studies 2275A/B Lecture 1: Whole Year Notes

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What is law
Law is the body of rules made by government that can be enforced by the courts or by other
government agencies
Natural law: human laws must not contradict natural laws
Utilitarian: only if a law is good for society
Sanitary?: laws are dirty, biased, depends completely on judges
As long as laws can be enforced, it is a LAW
Categories of law
Public law: constitutional law, government regulations
Private law: laws on personal, social and business relations
Substantive: individual rights and limits,
Procedural: determines how the substantive laws will be enforced
Origins of law
Judges base decision on civil code
Civil law legal system (civil code) - Quebec
Judges base decision on past cases
Only Supreme Court can make changes to past practices under new circumstances
Obliged to hierarchy (must follow the decision of judges from higher levels)
Judges can distinguish the facts of opposing precedents, but need to stay within a
limit
Stare decisis: follow precedent
Common law legal system (civil court, civil action, civil law)
Sources of law
3 courts, referred to as the common law courts
Roman civil law
Canon law
Law merchant
Common law borrows from
Common law
Common law was rigid --> Court of Chancery/Court of Equity --> provided relief, resulted in
law of equity --> flexibility made it hard to predict --> became rigid --> merged with
common law
Nowadays, equity supplements the common law
Equity
Statutes and regulations override judge-made l aw
Statutes
Law in Canada
British North America Act --> Constitution Act, 1867
Statutes
Conventions
Case law on Constitution issues
Constitution consists of
Confederation
Federal: banking, currency
Provincial: most of regulations concerning businesses
When validity of legislation get challenged, focus on the main purpose of the law
Constitution and division of powers
Colourable legislation: lower courts try to control issues beyond their jurisdiction or power,
by attempting to color it up
Paramountcy: when provincial and federal laws conflict, follow federal
Conflicting powers
Direct delegation is prohibited --> indirect delegation using boards or civil servant as
inferior bodies
Delegation of powers
Transfer-paymentschemes:health,socialprograms,educations…
Agreements to share powers
Bill --> statute --> receive royal assent --> status of law
Judges interpret and apply statutes --> decisions create precedents --> lower judges have to
follow
Legislation
Protection of rights and freedoms
Canadian bill of rights
Constitution including the Charter is the supreme law of Canada
Courts are empowered to strike down offending statutes
Effects
Government cannot interfere with basic rights and freedoms except if reasonable to
do so
Override certain sections of the Charter
"notwithstanding" clause may be a political gamble?
Charter only applies to government and government-related activities --> hard to
determine
Limitations
Charter of rights and freedoms
Freedom of expression, of the press
Freedom of conscience and religion
Freedom of thought, belief and opinion
Freedom of peaceful assembly
Fundamental freedoms (Section 2)
Charter provisions
Intra vires: within its power
Ultra vires: beyond one's jurisdiction or power
First need to know client's goal
Clear statement of expectation and communication is
important
Dr. Morganton
Courts of appeal cannot cancel the decision from a jury, but
only order a new trial
Administratively, some laws are decided to not be
enforced to save resources
Can a law be a law if it won't be enforced?
Constitution
Governs government
Governs other laws
Importance constitution
Limitation:
Human rights code applies to non-government
(provinces)
Has the power of law
Separate from charter: usually victims don't
have access to court
Controversy: are they allowed to create laws?
Determine between individual rights and
society rights?
Charter only applies to the government
"notwithstanding" clause
No absolute rights and freedom (to the extent of
being reasonable)
Charter of rights and freedom
Section 91 & 92: federal & provincial jurisdiction
Federal: peace & order, residual power (if any issue
falls out, belongs to Sec. 91)
BNA
Canadian constitution: partly written, partly based on
tradition
Statues
By parliaments
Changes a lot after elections
Case/common law
Trial courts
Court of appeal (provincial)
Federal trial courts
Federal court of appeal
Supreme Court of Canada
Structure:
Special courts
Advantages: efficiency, predictability, consistency
But must follow higher courts' judgement
Trial courts: no assurance that would follow precedence
Interpret statutes when in doubt
Trial and appeals
Get a decision at the end
Automatically have rights to appeal to provincial
courts within 30 days
Trial: hear evidence (criminal cases), sometimes have juries
Ask supreme court to hear appeal
Appeal: do not hear evidence, only decide on the law
Civil vs. criminal
More than 50% of doubt
Civil: A vs. B
Beyond any reasonable doubt
In favour of the accused
Criminal: always government/state vs. accused
Litigation
Fully disclosed, everyone have access to evidence
Judge in charge of evidence in dispute
Most of the trials get settled before trial
Chapter 2: Introduction to the Legal System
September-19-10
4:56 PM
MOS 2275A Page 1
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Freedom of peaceful assembly
Freedom of association
Can be overridden by notwithstanding clause
Maximum duration is five years unless crises loom
Cannot be overridden by notwithstanding clause
Democratic rights (Section 3,4,5)
Citizens enjoy right to enter and leave Canada
Mobility rights (Section 6)
Everyone has a right to life, liberty, and security of person
Everyone to be secure from unreasonable search, seizure, detention, or
imprisonment
Every person is to be equal before and under the law
Equality rights (Section 15, 28, 35)
French and English have equal status of Canada (federally) and of New Brunswick
Language rights (Section 16-22, 23)
Section 52
Canada independent of Britain
Quebec did not agree with patriating the Constitution
The importance of the changes
Human rights legislation prohibits discrimination on certain grounds
Human rights legislation
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The courts
Civil test -- balance of probabilities
Regulatory offences are not criminal
Small claims courts
Family courts
Provincial courts
Surrogate/probate courts
Superior court of province
Courts of appeal of the provinces
Superior court of Canada
Four levels
Question of law and fact
Drug treatment courts
Domestic violence courts
Mental health courts
Sentencing circles
Recent developments
Trial courts of the provinces
Courts of appeal of the provinces
Federal court and federal court of appeal
Supreme court of Canada
Courts at the federal level
The process of civil litigation
Before appeal, should try to settle dispute
Have to sue within a certain time period
Limitation periods
Small claims court is simple but only minimal costs are recoverable
Jurisdiction
Writ of summons (if in use) --> appearance
Statement of claim
counterclaim
Statement of defence
Documents needed
Discovery of documents
Examination for discovery
Discovery
Pleadings
Offer to settle
Recent initiatives
Pre-trial procedures
Rules of evidence
The trial
Judge: law
Jury: facts
Party and party costs: losing party usually pays costs, but legal expenses usually not fully
recovered
Solicitor and client costs
Costs
General damages: estimates
Damages
Remedies
Judgment
Chapter 3: The Resolution of Disputes
September-21-10
4:01 PM
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