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LAWS 2202 Exam Preparation.docx

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Department
Law
Course
LAWS 2202
Professor
Neil Sargent
Semester
Fall

Description
LAWS 2202 B Final Exam Preparation Text: Private Law, Social Life Chapter two: Legal persons: an individual or group that is allowed by law to take legal action, as plaintiff or defendant. It may include natural persons as well as fictitious persons (such as corporations). Chapter three: Four elements of a valid legal contract:  Exchange: both parties must agree on terms of exchange which would result in the completion of the agreed upon contract.  Coincidence of offer and acceptance and consideration: often enough, when these two elements are met a legally binding relationship is established between the two agreeing parties  Mental element: this element consists of two related components in order to validate a contract. The first component being the intention to form the contract, and the second being called the ―meeting of the minds‖. The intention component stipulates that a court shall not validate and enforce the contract if neither one of the parties intended to enter into such a contract to begin with; for example, if someone says that they’d give someone a million dollars to wash their car and someone actually goes ahead and does it under the assumption that they’ll be paid a million dollars. The second component, being the meeting of the minds stipulates that not only must the two parties agree on the contract, but they must also make sure that they are agreeing on the same thing Excuses of non-performance of a contract:  When someone lacks the legal capacity and means to follow through with their end of the contract  There are four main grounds in which someone can be excused by the courts from a legal contract; they are as follows  Mistake: Generally what constitutes a mistake is when the offering party makes a mistake in their offer the court will instruct the recipient of the offer to not accept the offering parties offer and demand on a strict offer of performance from the offering party. there are two main types of mistakes which can be made which would excuse a party from their legal obligation to a contract. The first mistake is known as a bilateral mistake and that is when both parties are in the wrong of a contract; the courts will usually not enforce these mistakes. The second type of mistake is a unilateral mistake in which a mistake is made by one party of the contract  Misrepresentation: is when one party of the contract, usually the offering party gives false or misleading representation of the terms of the contract usually with the intent of doing so to in order to benefit them from the contract in some way. The courts will usually enforce this under the grounds of the party guilty of this being fraudulent.  Unconscionability: otherwise known as duress, this element stipulates that the conduct and terms of the contract was not consented to in good conscience of one party. This element has two factors, economic duress and physical duress. Both of which involve a compulsion to act by threat of coercion of something  Inequality of bargaining power: is where one party to a "bargain", or some kind of contract or agreement, has more and better alternatives than the other party. This results in one party having greater "power" than the other to choose not to take the deal and makes it more likely that this party will gain more favourable terms. If proven, the courts will often reinforce these contracts and order the violating party to rescind the contract made to the disadvantaged party. Relationship of dependency: Simply put, a relationship of dependency is a state in which one is dependent on another for support. These relationships are perhaps most obvious in family life dynamics and have been a contentious party of family law relations for the past 200 years. Common classifications of legal dependents which were outlined in chapter two of private law, social life include children, women of the family (such as the female spouse), and at times the elderly. An example of this can be seen in the case of Balfour v. Balfour. Chapter Six: Equity: In its broadest sense, equity is fairness. As a legal system, it is a body of law that addresses concerns that fall outside the jurisdiction of Common Law. Issues of equity were more or less separated from the jurisdiction of the main legal courts up until the nineteenth century. The notion of equity can also be used in land issues within the court to obtain the money value of the property in damages done to the property, and so on. A Court injunction of equity is often used in many private law cases today involving breach of contractual duties. Fiduciary duties and their nature: is a legal or ethical relationship of trust between two or more parties. Typically, a fiduciary prudently takes care of money for another person. One party, for example a corporate trust company or the trust department of a bank, acts in a fiduciary capacity to the other one, who for example has funds entrusted to it for investment. In a fiduciary relationship, one person, in a position of vulnerability, justifiably vests confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts. Fiduciary duties are considered the highest duty of care in the court of law. Chapter Seven: Remedy of damages: In law, damages are an award, typically of money, to be paid to a person as compensation for loss or injury. The rules for damages can and frequently do vary based on the type of claim which is presented (e.g., breach of contract versus a tort claim). Remedies of damages are perhaps the most commonly awarded and requested legal remedies in the litigation process. Remedies in equity: are judicial remedies developed by courts of equity from about the time of Henry VII to provide more flexible responses to changing social conditions than was possible in precedent-based common law. As discussed in chapter six, equitable remedies were granted by the Court of Chancery in England, and remain available today in most common law jurisdictions. Equitable remedies are distinguished from "legal" remedies (which are available to a successful claimant as of right) by the discretion of the court to grant them . Remedies of equity are often awareded when a remedy of damages or other means of financial compensation are simply not sufficient. There are two main types of equitable remedies awarded by the court; they are as follows (two main ones being injunction and specific performance):  Remedy of Specific performance: is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to award/ for awarding damages, and is classed as an equitable remedy  Remedy of Recession: In contract law, rescission has been defined as the unmaking of a contract between parties. Rescission is the unwinding of a transaction. This is done to bring the parties, as far as possible, back to the position in which they were before they entered into a contract  Injunction: An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing specific acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions. In some cases, breaches of injunctions are considered serious criminal offenses that merit arrest and possible prison sentences. The rationale behind injunctions is to make whole again someone whose rights have been violated. Lecture material: Lecture One: Three types of legal obligation (contracts, torts, fiduciary responsibility):  Contracts are legal obligations which represent the idea of voluntary relationships. We choose our obligations and we are not compelled into such a relationship. However, once we enter into such a relationship we are bound by it  Torts are legal obligations which are imposed upon us by law. They are not subjected to individual choice like contracts are. For example, everyone who is a driver owes a duty of care to other drivers on the road in regards to their safety  Fiduciary responsibilities are legal obligations which are based off trust. They are obligations imposed upon us by the law. It is a situation in which one person has an obligation to another person to take care of them. For example, doctors have a fiduciary responsibility to do what is best for their patients. Part of the reason why these are relationships of trust is because one party has a supposed expertise which makes it so that one party can foresee and prevent any complication within the relationship which can come to harm the other respective party involved. Private law: is a part of the civil law legal system which pertains to the relationships between individuals such as the laws of contracts and torts. It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state Donoghue v. Stevenson: A historic case which has formed much of the basis today for English common law and has created the concept of negligence. It started when the plaintiff, Mrs. Donoghue was drinking a bottle of ginger beer in a cafe in Paisley, Renfrewshire. A snail was in the bottle. She fell ill, and she sued the ginger beer manufacturer, Mr. Stevenson. The court held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers. Lecture Two: Theories of contract:  The Promise theory of contract: promise theory of contracts stipulates that contracts are made through promises which should be kept and not broken. The reason for this is there is a moral obligation attached to making a promise with another party. A covenant is established between the parties involved and it must not be broken at any point. (ex: God’s covenant to Noah that he would never destroy the earth again with a great flood; despite how much humans may come to spite God in the future)  The will theory of contract: the will theory of contracts stipulates that contracts are agreements made between two parties. Under this theory, contracts are considered expressions of human will and as such should be respected. You can break the contract so long as you pay the damages associated with walking away and breaching that said contract.  The Reasonable Expectation of Contract: the reasonable expectation of contract stipulates that all contracts are always an expression of will. It suggest that contracts creates certain expectations which must be fulfilled if the contract is agreed upon between two parties. Legal requirements for a legally binding contract: 1. The offer: offers and counter offers of exchange are considered before the contract is finalized and agreed upon 2. The acceptance of the offer made: a contract cannot be legally binding if it isn’t agreed upon by all parties involved 3. Consideration of the offer: without consideration of the contract on both sides, the contract is not legally enforceable. Both parties must have an obligation under the contract 4. Intention to create legal relations: the intention on all parties involved in the deal to bind themselves legally to the contract being made and carried out 5. Implicit legal capacity Carhill v. Carbolic Smoke Ball Co.:  Carhill v. Carbolic Smoke Ball Co. pertains to issues surrounding the nature of a legally binding contract  In this case, a company advertised on their product that the use of their product would guarantee the user protection from the influenza virus. The company was so confident in their claim and the quality of their product that they guaranteed on the product packaging that if the user got the influenza virus after its use they would give that person 100 English pounds  The plaintiff, Carhill purchased and used this product and ended up getting influenza. Upon asking the company for compensation the company refused her. Thus, Carhill sued the company for breach of contract.  In their defense, the company claimed that there was no established contract made and agreed upon between the two parties involved in this hearing. They claimed that no consideration of an offer was made as well as no real exchange either; they also claimed that the message on the product packaging was not enough to be taken seriously (contracts cannot be made off of marketing ploys)  The court ruled in favour of Ms. Carhill. They claimed that an implicit offer was made on the product packaging. There was no question in clarity or intentions on the product packaging to show that the company did not have a serious intent to establish a contract between the company and the consumer Lecture Three: Balfour v. Balfour: A case between Mr. Balfour (D) and Mrs. Balfour (P). The plaintiff remained in England for medical treatment and the defendant agreed to send her a specific amount of money each month until she could join the husband in Sri Lanka. The defendant later asked to remain separated and Mrs. Balfour sued for restitution of her conjugal rights and for alimony equal to the amount her husband had agreed to send. The legal issues pertaining to this case was whether both parties intend that an agreement be legally binding in order to ben an enforceable agreement as well as under what circumstances will a court decline to enforce an agreement between spouses? The court ruled that there was no enforceable agreement established between the two spouses. This case is one of the main indicators which lead to the legal shift from marriage as a promise theory of contract to a will theory of contact. Baby ―M‖ Case: The Sterns entered into a surrogacy contract with the Whiteheads whereby Mrs. Whitehead would bear the child of Mr. Stern through artificial insemination and relinquish custody of the child to the Sterns upon birth. Once the child was born Mrs. Whitehead found herself unable to part with the child, and sought to retain custody. The legal issue at hand in this case was whether a surrogacy contract is enforceable, and if not, who should gain custody of Baby M? The Court found that the surrogacy contract was unenforceable because it violated state statutes and public policy. Nonetheless, based solely on the best interests of the child custody was granted to the Sterns, with visitation rights to Mrs. Whitehead. Lecture four: Freedom of contract: parties are free to enter into whatever contract they so wish, without the state intervening in such a relationship. It is a noninterventionist principle which tries to minimize the role of the state, specifically in legal relations Judicial intervention in contract: under the following circumstances parties of a contract are allowed to avoid the legal consequences of contracts that they have signed.  Proof of coercion in making the contract  Proof of misrepresentation by one party at the time of making the contract  Unconscionability of the contract (ex: Lloyds Bank v. Bundy)  Fraud Tilden Rent-A-Car Inc v. Clendenning: -Clendenning wished to rent a car from a company for his travels -was asked if he wanted add insurance to his rental for extra coverage -Clendenning agreed to the extra insurance coverage for a daily fee -Clendenning got into a collision days after and was charged by the police for impaired driving -since the coverage did not cover damages caused by impaired driving, the rental company charged him for the damages on the car -when the case was taken to court for his impaired driving, he was advised by his lawyer to plead guilty to avoid the risk of losing points. Clendenning claimed that he was not impaired though, he just had one beer with his dinner; however due the legal complications of his impaired driving case, he had to plead guilty. As such, he believed that he should be covered by the damages inflicted to the car due to the extra coverage he paid for while renting the car -in Clendening's defence he claimed he got into a collision with the poll in order to avoid a far greater collision with another vehicle who veered onto Clendening's side of the road; thus trying to further assert that he was not really impaired -Clendening argued that the clause on the contract was not legible and noticeable on the contract and thus demanded coverage for his collision -the court ultimately ruled in favour of Clendening for they believed the contract was unfair due to its small print. The company was also forced to rewrite their contract to make such clauses more noticeable Lloyds Bank v. Bundy: -Mr. Bundy and young Mr. Bundy were clients with one of the major banks within their country -young Mr. Bundy's business was not doing too well, so the bank informed him that if his business did not improve, they would cut off his business line of credit -young Bundy pleaded with the bank to not cut his line of credit. In order to give the bank manager more security on their investment, they needed more financial security from young Bundy (ie: mortgaging his property to the bank) -young Bundy asked his father, who also was with the same bank and bank manager, asked his father if he would mortgage his property in order to guarantee that the bank would keep his business' line of credit open -the Bundy families lawyer advised the family that if they were to follow through with the deal, do not lease the entire value of the property, at least leave half of the value as a safety net -the Bundy family agreed with this proposal and brought the offer to the bank manager, they agreed and the sons line of credit was extended -time comes to pass, the old bank manager retired and a new one stepped into place -the new bank manager looked at young mr. Bundy's loan portfolio and is skeptical of the conditions of the loan. As such, the bank manager goes to young mr Bundy and informed him that they will be withdrawing the line of credit due to poor reciprocal business practices -similar to the last time, the bank manager was asking for more security for their loan to young mr. Bundy. Young Bundy went to his father and asked his father to lease off the remaining value of his property to provide a guarantee for the bank to continue the business' line of credit. The father agreed and young mr Bundy proposed the offer to the bank manager -the bank manager agreed to this offer and extended the loan -after a while, the bank called on the loan and young Bundy could not afford the loan. As a result, young mr Bundy's business went under and the bank foreclosed young mr Bundy fathers house to pay for the loan -old mr Bundy refused to give up his house to the bank so the case was brought to court -the Bundy's claim there was unequal bargaining power involved in the second part of the loan agreement that had taken place with the new bank manager. Said that the new bank manager claimed that the loan was called in too soon and that not enough time was given to the consideration of the offer like the last offer which the previous bank manager left the contract with the Bundy family for a night to consider the deal with a lawyer -the court sided with the Bundy' and believed that there was unequal bargaining power involved in the deal. The ruling stated that the bank manager was being too pushy and thus not enough consideration was given by the Bundy's Sevidal v. Chopra: -was a case which dealt with the sale of a home -property was believed to have radiation which was not picked up by the inspection team and the seller -since the defect was classified as a latent defect, such information should have been disclosed to the buyer of the property for it wold have sufficiently effected the buyers choice in purchasing the property -court agreed that the responsibility on the seller to disclose the information was necessary and such information was significant to the buyer in their choice to purchase the property Pelech v. Pelech: -case concerning a separation and divorce agreement (financial support for the children, value of the property, assets, etc) -wife worked as a receptionist and bookkeeper for the Pelech's business -since the business' profits went directly to the family account, Mrs. Pelech did not see the need to have a substantial salary since business revenue went directly to the family as a whole anyways -mrs Pelech was not a partner in the business, as such, a not entitled to any of the asses of the business -in May, the couple ended up filing for a divorce and a court hearing was held to determine the divide of the couples assets -custody of the children was given to mr Pelech for the wife was seen as mentally unstable -the assets for the property they shared were divided and maintenance funds were given to ms. Pelech -later down the road, Mr. Pelech's business was doing exceptionally well and his net value went up exceptionally -Ms. Pelech's physical and mental state was deteriorating over the years and had to use up all of her maintenance funds allotted to her, and even some of her personal funds to get by -being financially desperate, she attempted to reopen the case previously between the two formal couples to obtain more maintenance fees for she needed more to survive -part of her reasoning for this was hat due to her current state and age, her prospects for employment was unlikely. As such, she needed more maintenance funds allotted to her out of necessity of need -court had eventually ruled that need was not sufficient to reopen the contract and that Mr. Pelech could not be held financially liable for how his former wife developed after the divorce Lecture five: Remedies for breach of contract: there are five main remedies awarded by the court for a breach of contract. They are as follows:  Award of damages: is a remedy of financial compensation for a party not performing their end of the contract plus any losses incurred from not complying with the contract  Remedy of specific order for performance: a remedy given by the courts which forces the party responsible for the completion of the service to fulfill their obligations of the contract to the other party  Remedy of rescission: a legal order rescinding the contract, meaning that the contract is no longer enforceable and thus not valid. It is a remedy which is used to get a party out of a contract rather than provide any sort of other means of compensation  Remedy of restitution: a remedy which brings the party back to a stage in the contract in which an agreement is still being deliberated on. It is a remedy in which payment in advance is repaid back to the party who hired the other party to fulfill an agreed upon service  Remedy of injunction: a remedy of injunction is a remedy in which a court order is issued which requires a party to do or refrain from doing specific acts Hadley v. Baxendale: -legal issue: Are Defendants liable to Plaintiffs for damages suffered by Plaintiffs due to lost profits? -Plaintiffs operated a mill, and a component of their steam engine broke causing them to shut down the mill. Plaintiffs then contracted with Defendants, common carriers, to take the component to W. Joyce & Co. to have a new part created. When delivery was delayed due to Defendants’ neglect, causing Plaintiffs’ mill to remain closed longer than expected, Plaintiffs sued to recover damages -The damages to which a non-breaching party is entitled are those arising naturally from the breach itself or those that are in the reasonable contemplation of the parties at the time of contracting. -the legal decision of the court was that damages are limited to those that arise naturally from a breach and those that are reasonably contemplated by the parties at the time of contracting Peevyhouse v. Carland Coal Co.: -legal issue: Is Defendant liable for the costs of the remedial work? -Plaintiffs leased their farmland to Defendant for strip mining on the condition that Defendant fill in the holes Defendant made after the completion of the mining. Defendant did not fill in the holes and thus the plaintiff is suing the defendant for the damages caused by this breach of contract -the jury awards $500 of damages; both sides appealed the decision for they were both not satisfied with the cost of damages payed out -Carland coal thought that this was too much to pay out to the land loaner, whilst Peevyhouse thought that this remedy of $500 did not come even close to amending te damages caused to them due to the breach of contract -Case law, statute and Restatement of Contracts limit damages to those that do not cause economic waste or to those damages where the costs involved are not disproportional to the end obtained. Plaintiffs may not gain more in damages for a breach of contract that actual performance is worth. It is unlikely that a reasonable landowner would spend $29,000.00 to increase the value of a piece of land by $300.00 -comes down to the argument of punitive damage vs efficient breach of contract Lecture six: Torts: obligations which are imposed by law independently of agreement. In contrast, a contract is imposed by individual agreement. An example of a tort obligation is that it is generally accepted that one cannot trespass on one’s private property. Torts refer to a legal wrong being committed. These torts are then brought to the courts to be enforced. Donoghue v. Stevenson was one of the few landmark cases surrounding torts. Pittman Estates v. Bain et al: ● sometime during 1984, Mr. Pittman had undergone blood transfusions in a Toronto hospital ●the individual whose blood was donated to Mr. Pittman was HIV positive. This became known after the transfusion process involving Mr. Pittman ●the Red Cross traced the source of this blood donation and informed both the blood donor and the hospital in which this process took place that the donor has HIV and the donated tainted blood ●the hospital then informs Mr. Pittman’s personal physician, Dr. Bain that his client had been transfused with tainted blood ●the physician did not inform Mr. Pittman of this information when he received it around 1989 and a year after, Mr. Pittman had died due to pneumonia complications which may or may not have been a result of the HIV virus he was infused with ●shortly after, Mr. Pittman’s wife is tested HIV positive in 1990. finding this out, she goes to sue the physician, the blood donation institution, and the hospital on behalf of the late Mr. Pittman (because his state is still in existence) and herself ●Ms. Pittman received a judgment of liability for $500,000 on the terms of the delay in look back on behalf of all parties in involving Mr. Pittman about the risks of being transfused with contaminated blood Lecture seven: Negligence: is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm. Duty of care: In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. Requirements for establishing liability in negligence:  Proof of duty of care: duty to not take care but to take reasonable care to avoid reasonably foreseeable risks  Standard of care  Causation  Foreseeable risk to cause injury: the plaintiff initiates the litigation, claiming that they have suffered injury through the case of the cause of the defendant’s own actions. During the litigation process the plaintiff must prove that the defendant’s actions were legally wrongful and that through their negligence a specific harm was inflicted upon them. Thus, the ownice of proof is on the plaintiff to claim that they have suffered injury based off the actions of the defendant(s).  Requirement for establishing liability in negligence  Foreseeable risk of care Palsgraf v. Long Island Railway Co.: ●Mrs. Palsgraf (P) was standing on a Long Island Railroad (D) train platform when two men ran to catch a train ●The second man was carrying a small package containing fireworks. He was helped aboard the train by one guard on the platform and another on the train. The man dropped the package which exploded when it hit the tracks ●The shock of the explosion caused scales at the other end of the platform many feet away to fall, striking and injuring Palsgraf ●Palsgraf brought a personal injury lawsuit against Long Island Railroad and the railroad appealed the court’s judgment in favor of Palsgraf. The judgment was affirmed on appeal and Long Island Railroad appealed ●The court held that the conduct of Long Island Railroad’s guard was wrongful in relation to the man carrying the parcel, but not in relation to Palsgraf standing far away. No one was on notice that the package contained fireworks which when dropped could harm a person as far from the zone of danger as Palsgraf ●To find negligence there must first be a finding that a duty was owed and breached, and that the injury could have been avoided if the defendant had been following that duty. The orbit of the danger or risk associated with a danger or risk is that which a reasonable person would foresee ●Even if the guard had intentionally taken the package and thrown it he would not have threatened Palsgraf’s safety from the appearances of the circumstances to a reasonable person. Long Island Railroad’s liability for an inadvertent or unintentional act cannot be greater than it would be if the act had been intentional ●There are two notable legal issues which arise in this case which must be addressed: how is the duty of due care that is owed determined and to whom does a party owe the duty of due care? ●There was one dissenting view to the case. Everyone owes the world at large the duty of refraining from acts that may unreasonably threaten the safety of others. In determining proximate cause the court must ask whether there was a natural and continuous sequence between the cause and effect and not whether the act would reasonably be expected to injure another. The court must consider that the greater the distance between the cause and the effect in time and space, the greater the likelihood that other causes intervene to affect the result. In this case there was no remoteness in time and little in space. Injury in some form was probable. Lecture eight: Dobson v. Litigation Guardian of Dobson: Cynthia Dobson was a pregnant woman. While in the 27th week of pregnancy she was driving her car when her negligent actions caused a car accident. The foetus was permanently injured, and was born prematurely that day. Her son, Ryan Dobson, suffered physical and mental injuries, including cerebral palsy. His grandfather launched a tort claim for damages against his mother. Ryan was successful at the Court of Appeal, which his mother appealed. The main legal issue in this case was whether a mother should be held liable in tort for damages to her child arising from a prenatal negligent act that allegedly injured the fetus in her womb? Supreme Court decision RE: Dobson v. Litigation Guardian of Dobson: ●Judge Cory, writing for the majority, finds that the mother should not be held liable in the situation because of the policy implications. They employ the Kamloops test to determine if a duty of care should be owed. It has two parts: 1. Is there a sufficiently close relationship between the two parties closes enough to create a reasonable duty of care? 2. Are there any public policy implications that should negate or limit the scope of the duty of care? ●They find that the first part is satisfied; however the public policy implications negate the duty. They state that there are two main reasons for this: it would violate the privacy and autonomy of women, and it is impossible to judicially define a reasonable standard of conduct for pregnant women. The decision is split 4 to 3 ● McLachlin, in a concurring judgment, states that another main reason why this duty cannot be imposed is that it would violate pregnant women's rights under the Charter – specifically liberty and equality. They would lose their liberty, and not be treated equally with other women in society Alcock v. Chief Constable of South Yorkshire: Is considered a leading case in English Tort law related to the liability for nervous shock and or other types of psychiatric injury .The claims were brought by Alcock and several other claimants after the Hillsborough disaster in 1989, where 96 Liverpool fans died in a massive crush during the FA Cup Semi Final at Hillsborough Stadium in Sheffield. According to the Taylor Report as well as the later report of the Hillsborough Independent Panel, the accident was caused by the police negligently allowing too many supporters to crowd in one part of the stadium. Many alleged to have seen their friends and relatives die in the crush and suffered psychiatric harm or nervous shock after the incident. The Kamloops Test: Established by the supreme court after the trial of Kamloops city v. Nielsen. Since its decision in Kamloops, the SCC has enumerated five categories of compensable loss and liability due to negligence. The following test was also applied in the case of Dobson v. Litigation of Guardian of Dobson. a. The Independent Liability of Statutory Public Authorities; b. Negligent Misrepresentation; c. Negligent Performance of a Service; d. Negligent Supply of Goods or Structures; e. Relational Economic Loss. Lecture nine: Establishing a claim of negligence: 1. What degree of injury did the plaintiff suffer as a result of the defendant’s failure to take reasonable care? Does the defendant owe a duty care to the plaintiff? 2. If yes to question 1, did the conduct fall below the appropriate standard of care? 3. did the defendant's failure to take reasonable care cause the plaintiff injury 4. Was the risk of injury to plaintiff reasonably foreseeable? 5. What degree of injury did the plaintiff suffer as a result of the defendants failure to take reasonable care? Jordan House v. Menow: is a landmark decision of the Supreme Court of Canada on the commercial host liability where the Court held that a bar owner has a duty to reasonably ensure their intoxicated patrons are able to make it home safely. Menow had a reputation of behaving badly and was banned from the Jordan House Hotel for drunken behavior. Eventually he was allowed back and was allowed to be served alcohol on the condition that he be escorted by a responsible adult. On a later night he went to the hotel bar but was abandoned by his escort for three hours while he was served drinks. He became extremely intoxicated and began to harass other patrons. Menow was soon ejected from the hotel bar and started to make his way home down a highway but was hit by a car. Menow brought an action against the hotel in tort for violating their duty of care by serving him alcohol and not ensuring he was safe when he left the hotel. At trial, the court held that the hotel violated a common law duty of care to protect patrons from "danger of personal injury, foreseeable as a result of the eviction". The duty, the trial judge found, could have easily been discharged by calling the police or arrange for a safe way home. The Supreme Court upheld much of the trial judge's ruling. Ritchie J. found that the hotel was aware of Menow's behaviour yet still assisted him in becoming intoxicated, which they ought to have known might result in danger to Menow. This awareness should have "seized them with a duty to be careful not to serve him with repeated drinks after the effects of what he had already consumed should have been obvious." The breach of duty was a result of both a failure to protect Menow once he became intoxicated and a failure to ensure he did not become intoxicated in the first place. Stewart v. Pettie: is leading decision of the Supreme Court of Canada on the duty of care owed by commercial establishments serving liquor. In December 1985, two couples, Gillian and Keith Stewart and Stuart and Shelley Pettie, went to a dinner theatre in Edmonton. At dinner Stuart was served a number of rum-and-cokes but showed no signs of intoxication. Afterwards the four discussed who should drive and Stuart insisted he was fit to drive, and so they agreed to let him drive. On the way back Stuart got them in an accident. Among the injuries, Gillian was rendered quadriplegic. At trial the judge found that the dinner theatre could not have been aware of Stuart's degree of intoxication and did not impose liability based solely on the number of drinks served. On appeal the Court of Appeal overturned the decision and allocated 10% liability to the theatre. The court held that the Mayfield investments (owners of the theatre) did not breach the duty that they owed to Gillian Stewart. Childs v. Desormeaux: is a Supreme Court of Canada decision on the topic of social host liability. The Court held that a social host does not owe a duty of care to a person injured by a guest who has consumed alcohol. Julie Zimmerman and Dwight Courrier hosted a New Year's pot-luck dinner to which guests were to bring their own alcohol. Desmond Desormeaux, a guest at the party and long-time heavy drinker, drank approximately 12 beers in over 2 and half hours that evening. According to the version of events accepted by both sides, the hosts did not monitor his drinking more closely than the drinking of the other guests. Desormeaux drove home after a brief conversation with Courrier, who asked him, "Bro, are you going to be all right?". On the way home, he was involved in a car crash, paralyzing the passenger Zoë Childs and killing another passenger. The trial judge at the Ontario Superior Court of Justice found that the injury to Childs was reasonably foreseeable, that is, a reasonable person in the position of Mr. Courrier and Ms. Zimmerman would have foreseen that Mr. Desormeaux might cause an accident and injure someone else—but refused to impose a duty of care based on public policy grounds. Like the trial court, the Court of Appeal for Ontario held that Zimmerman and Courrier did not owe a duty of care to Childs, but for different reasons: the relationship between the hosts and the guest was not proximate enough to ground a duty of care Clarke v. Canada (RCMP): In Clark v. Canada the plaintiff, an RCMP officer, sued for negligent and intentional infliction of nervous shock. She had been harassed by her male colleagues and suffered a mental crisis as a result. Her superiors failed to come to her assistance. The court ruled in favour of Clark, saying that her higher ranked officers had owed a duty of vicarious liability to her and thus awarded Clark a remedy of special damages. Bazley v. Curay: is a Supreme Court of Canada decision on the topic of vicarious liability where the Court held that a non-profit organization may be held vicariously liable in tort law for sexual misconduct by one of its employees. The decision has widely influenced jurisprudence on vicarious liability outside of Canada. The Children's Foundation is a provincially funded, non- profit organization which operated two residential care facilities for children aged six to twelve. In April 1966, the foundation employed Leslie Charles Curry to work in its Vancouver home, where he was hired as a childcare counsellor practising "total intervention" in the lives of the children he was caring for. He worked there until March 1980, when the Foundation received a complaint. They investigated and discovered that Curry was in fact a paedophile and had been abusing the children under his care. In 1990 he was charged with 18 counts of gross indecency and two counts of buggery, and was convicted on all but one count, two of those convictions were in relation to the respondent in this case, Patrick Allen Bazley. Curry died not long thereafter. In this case, Bazley sought damages from The Children's Foundation, alleging that they are vicariously liable for the misconduct of its employee. The main issue in this appeal was whether or not the Children's Foundation should be held vicariously liable for the actions of its employee. There were two questions before the court: May employers be held vicariously liable for sexual assaults on clients or persons within their care?; If so, should non-profit organizations be exempted from liability as a matter of policy? Vicarious liability: a form of secondary liability which stipulates that the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. Lecture ten: Damages:  the primary purpose of a remedy of damages is to compensate the injured party (the plaintiff) for the injury suffered through the defendants wrongful or negligent actions  in order to establish a remedy of damages, the plaintiff must establish a causal link between the injury he or she suffered and the defendants actions  Punitive damages, unlike regular compensation damages are a remedy of financial compensation with an additional punishment. this comes to serve as an extra deterrent for the violating party to repeat the same dispute (specifically in cases where the defendant had enough financial capital in which they can afford to be taken to court again) Punishment:  a punishment is primarily found in criminal law hearings, the law of torts  The concept of deterrence has two key assumptions: the first is that specific punishments imposed on offenders will "deter" or prevent them from committing further crimes; the second is that fear of punishment will prevent others from committing similar crimes  The notion of deterrence underlines the criminal justice systems in most democratic societies, although punishment and incarceration traditionally have a variety of goals – including incapacitation, punishment, deterrence and rehabilitation. In the United States in particular (but also in other Western democracies), sentencing policy initiatives have often been enacted with the goal of enhancing the deterrent effect  Under the rubric of "getting tough on crime", policies such as "mandatory minimums", "truth in sentencing", and "three strikes and you’re out" have been designed to deter offending with the threat of substantial terms of imprisonment. Deterrence:  Deterrence is the use of punishment as a threat to deter people from offending  Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done. Class action lawsuit:  Is a lawsuit in which a case is brought on behalf of the claimants. An individual claimant who sues as a representative claimant  In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued  Class actions are commonly referred to as class action suits; however, this phrase is redundant as the historical distinction between "actions" at law and "suits" in equity is no longer recognized Categories of damages:  pecuniary (financial damages): ex- loss of past or projected income, cost of care, any damages which can be measured easily financially  non-pecuniary (non-financial damages): pain and suffering, loss of amenities of life Alternatives to establishing liability in negligence accident compensation where injury caused through actions of another: 1. no fault compensation system such as workers compensation  a form of compensation which is for injuries caused within the workplace  this form of compensation is designed for temporary income replacement 2. out of court settlements agreement based on no acknowledgement of fault  ex: if a lady sues McDonald's for being harmed by coffee, the company would see it in its benefit to settle outside of court and grant that lady more financial compensation if she would have settled in court. the reason for this is if the lady is successful in her case against McDonalds in court, it would set a precedent of liability that McDonald's is liable for everyone who may be harmed by their coffee beverage. if McDonald's is able to settle outside of court, the lady still recieves her compensation while McDonald's is no longer has to admit legal liability to anyone who is harmed by their coffee beverage for they now have ample opportunity to make a warning to future consumers that McDonalds is no longer to be held liable for any harm caused to the consumer through their coffee Lecture eleven: Fiduciary obligations:  are obligations which are enforceable in equity rather than common law  obligations in general arise out of a relationship based on trust and confidence  These obligations usually deal with asymmetrical relationships, usually structured between what is known as the trustee and the beneficiary. The trustee is required to carry out a certain obligation for the beneficiary is to benefit from such a transaction. when the trustee fails to carry out their agreed upon responsibility in the relationship, the beneficiary can sue the trustee for breach of fiduciary obligation Guerin v. Canada [1984]: ● was a landmark Supreme Court of Canada decision on aboriginal rights where the Court first stated that the government has a fiduciary duty towards the First Nations of Canada and established aboriginal title ● R. v. Guerin acknowledged that Canada (the federal government) has a trust-like relationship, or ―fiduciary duty‖ towards First Nations, specifically in regards to reserve lands. In other words, the federal government has the obligation to act in their best interest ● In 1956, Musqueam held just over 400 acres of reserve land overlooking the Fraser River in Vancouver’s prestigious Southlands neighbourhood. At that time, the Shaughnessy Golf and Country Club was looking for land for its golf course. The Club approached the Department of Indian Affairs (DIA) in the hopes of leasing 162 prime acres of the Musqueam reserve. The DIA obtained Musqueam consent by assuring them that the band would receive revenue from the lease. According to Musqueam, the band was denied legal representation ● They consented to the deal regardless. After the DIA obtained their consent, DIA representatives re-negotiated the deal with the Club and leased the land on substantially different terms than what Musqueam had agreed to. ● Musqueam had been told that they would profit off of the 75-year lease, with rents being adjusted to fair market rates every decade. Unbeknownst to the band, however, the deal was re-negotiated to allow the Club to only pay what amounted to 10% of the fair market rent for the land. ● Chief Justices Wilson and Dickson interpreted this fiduciary duty as stemming from an Aboriginal interest and title to the land, and the Crown’s relationship to Aboriginal peoples. Wilson understood this relationship to be characterized by Section 18 of the Indian Act, which specifies that reserves are held by the Crown ―for the use and benefit of the respective bands for which they are set apart,‖ and that ―the Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band"4 (emphasis added) ● Thus the government demonstrated it did not act in Musqueam best interest by not consulting them about the revised terms of the lease. ● The concept of ―fiduciary duty‖ has gone on to inform other Aboriginal rights cases as well as the protection of Aboriginal rights under Section 35 of the Canadian Constitution Canadian Aero Services v. O’Malley: is a leading civil case decided by the
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