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Law and Business
LAW 122
Gil Lan

Chapter 1 Risk Management – Process of identifying, evaluating, and responding to the possibility of harmful events.  Identify  Respond  Evaluate Risk Avoidance – Avoid a serious all together Risk Reduction – Pass the risk off to an independent person Risk Acceptance – Accept the risk if it’s small or try to minimize it Exclusion Clause – contractual term that changes the rules of liability  Allows people to sign away their rights to sue Incorporation – If a business is a corporation, it has a benefit of having limited liability.  If something goes wrong the company is held responsible, not the people running it. Civil litigation is a legal dispute between two or more parties that seeks money damages or specific performance rather than criminal sanctions (Torts or contracts). A lawyer who specializes in civil litigation is known as a “litigator” or “trial lawyer.” Lawyers who practice civil litigation represent parties in trials, hearings, arbitrations and mediations before administrative agencies, foreign tribunals and federal, state and local courts. Law – rules that can be enforced by the courts Jurisdiction – Geographical are that uses the same set of laws Law comes from  Civil Law – systems trace their history to ancient Rome. Quebec & Louisiana (Borrowed from France) is the only civil law jurisdiction in Canada and the US. o Big book of law  Common (Case) Law – systems trace their history to England. Most jurisdictions that were settled by English colonists are common law. Examples: Canada, New Zealand, Australia, and most of US. o Judge made law, its written down and passed down the years 2 Divisions of Law - They can overlap like government charges you for criminal activity and you get charged for a tort Public Law (Government vs. Individual) – Concerned with governments and the ways n which they deal with their citizens  Constitutional Law – Provides the basic rules of our politician and legal systems. Determines who is entitled to create and enforce laws, and it establishes the fundamental right and freedoms that Canadians enjoy.  Administration Law – Concerned with the creation and operation of administrative agencies and tribunals  Criminal Law – deals with offences against the state o You have committed a crime to the community, police may continue to prosecute even if charges are dropped by the victim  Tax Law – Concerned with the rules that are used to collect money for the purpose of public spending Page 1 of 14 Private Law (Between Individuals) – Concerned with the rules that apply in private matters (Government may apply in private if it gets involved in private transactions)  Law of torts  Law of contracts  Law of property Tort – a private wrong  Intentional torts  Business torts  Negligence torts Law of contracts – concerned with the creation and enforcement of agreements Law of property – concerned with the acquisition, use, and deposition of property  Real property – lands and things attached to land  Personal property – things that can move from one place to another  Intellectual property – involves things that consist of original ideas Law of succession – deals with the distribution of a person’s property after death Law of trusts – deals with a situation in which one person holds property on behalf of another Sources of Law: Constitution – the document that creates the basics for Canadian society including its political and legal systems  Every other law in the country must be compatible with it, Section 52 – “The constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the constitution is, to the extent of the inconsistency, of no force or effect” a) Very difficult to change Division of powers – states the areas in which each level of government can create laws  Canada is federal country because it has two levels of government a) Federal – Governments the country as a whole, composed of two parts: Common consists of members of Parliament (MPs who are elected from every province and territory) and the senate who is appointed to their jobs. b) Provincial and territorial – Canadians elect politicians to represent them in their own provinces and territory Residual power – gives the federal government authority over every that is not specifically mentioned Federal has powers in: Provincial/Territorial has powers in: -Criminal Law -Property and civil rights (e.g. Contracts, torts) -Taxation -Direct taxation to raise money for provincial purposes -Unemployment insurance -Corporations with provincial objects -Banks -The creation of municipalities -Bankruptcy and insolvency -Matters of a local or private nature within a province -Money -Negotiable instruments (such as cheques) -International and interprovincial trade & commerce -Navigation and shipping -Copyright -Any matter that is not exclusively given to the provinces Page 2 of 14 Ultra Vires – When a government sometimes tries to create a law outside of its own area Charter – Protects a large number of rights and freedoms  Section 2 – Fundamental Freedoms a) Freedom of conscience and religion; b) Freedom of thought, belief, opinion, and expression, including freedom of the press and other media communication c) Freedom of peaceful assembly; and d) Freedom of association  Section 6 - Mobility Rights 1) Every citizen of Canada has the right to enter, remain in and leave Canada 2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right a) To move to and take up residence in any province and b) To pursue the gaining of a livelihood in any pressure  Section 15 – Equality Rights a) Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. b) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental disability.  Notes: Companies has freedom of expression but does not have right to equality, though it cannot believe in a religion, its employees can.  Reasonable Limits – Section 1 says the rights and freedoms are subject to reasonable limits. Sometimes it’s okay to violate a person’s right if it’s really bad.  Notwithstanding Clause (Section 33) – Allows parliament to violate the charter. - Can override section 2 and 15 but not section 6 - Can only be used for 5 years at a time, must be reapplied to ensure rules are re-examined  Charter Remedies (Section 24) – Courts may use remedies in response to the circumstances a) Declaration – Court may declare the charter has been violated, the legislature will then have the obligation of finding some solution to the problem b) Injunction – Requires government to address the problem in a certain way. The choice therefore lies with the judge, rather than the legislature c) Striking down – A court may eliminate a statute that violates the charter, usually there’s a temporary suspension d) Severance – Rewriting a statute, if a part of it is offensive then its cut out. It’s read down if it’s too broad and read in if it’s to narrow. e) Damages – Money are given to someone who has suffered a loss due to a charter violation Parliament Supremacy – means that while judges are required to interpret constitutional and statutory doctrines, they must also obey them Legislation – law that is created by parliament or a legislature Municipality is a town or city who can make the laws Page 3 of 14  By-Law is a type of subordinate legislation that is created by the municipality  Lowest level of government The Courts -Interpret and apply the words that appear in the constitution and legislation Court of Equity – In older times there were cases that had to be taken to the king. As it got to busy the cases got passed down to the chancellor and so on. Usually the decisions were decided by how they felt about which one was right. Equity is in a general sense, fairness Chapter 2 Legislation – The system of resolving disputed in court  Doesn’t matter if your Canadian or not, you can use the Canadian courts to sue  Mentally handicapped person needs a court appointed representative  Children need a parent or a litigation guardian  Corporations are a type of person  unincorporated organizations cannot sue or be sued (Clubs & Church) but the individual persons running the organization can (May need license) In some provinces trade unions can be sued or sue  Its complicated when suing the government (Lots of rules) Class action – allows a single person, or a small of people to sue on behalf of a larger group of claimants  Basic Requirements:  Common issue- must be a common issue amongst the various members of the class  Representative plaintiff- the plaintiff must qualify as a representation plaintiff, must demonstrate a workable plan for fairly representation the interest of the class members  Notification- representation plaintiff must also have a workable plan for notifying potential class members  Preferable procedures- court must be convinced that a class action is the preferable procedure for dealing with the claims  Certification- represents the court decision to allow the various claims to be joined together into a class action, demonstrates the court that the court believes there is a serious claim o Residence in province are included but if they living outside they have to apply to opt in (Quebec and Ontario are exceptions) Self-representation- you have the right to defend yourself  small claims courts encourages people to deal with some sorts of disputes by themselves  Better to have lawyer in the long run (Less expensive) Lawyers-provides you with competent and increases chance of success  communication are confidential and privileged  required to complete trainings, governed by provincial law societies, must carry professional  liability insurance - allows a client to receive compensation from the lawyers insurance company if the lawyer acted carelessly  Assurance fund - provides compensate to people who are hurt by dishonest lawyers Page 4 of 14 Paralegals-person who is not a lawyer but provides legal advice and services  Common in small courts & land lord and tenant tribunals How a law suit begins: Pleadings- are the documents that are used to identify the issues and clarify the nature of dispute Limitation Period – a period of time within which an action must be started  most claims must be started within 2 years from day on which plaintiff discovered the cause of action  much shorter periods to sue municipalities or the crown (Claims against municipalities within 3 months, give notice within 7 days)  deadline may vary if it is unenforceable  2 Reasons there are limits: (1)Loss of evidence (2) Unfair to have claim hanging over some ones head Plaintiff-person who makes the complaint  plaintiff starts by preparing the statement of claim files it with the court & serves it on the defendant  Statement of claim-is a document in which the plaintiff outlines the nature of the complaint  Reply-a response by the plaintiff to a statement of defence  Writ – in some jurisdictions, this comes before claim. Notifies defendant that you plan to sue Defendant- person who is complaint about (If you don’t reply in 30 days, you receive a default judgement)  the defendant then prepares a statement of defense, files it, and has it served it on the plaintiff  Statement of defence-the defendant denies fact or reliability, with their own facts  Counterclaim- is a claim that the defendant makes against the plaintiff, the plaintiff will in turn issue a statement of defence to the counterclaim Demand for particulars-used by either party to demand additional information Pre-trial activity: - Discovery of principal witnesses and document  Examination for discovery-is a process in which the parties ask each other questions in order to obtain information for their cases  Documentary discovery-every document relating to the issue in an action that has been in the possession or the control of a party to the action shall be disclosed. This is a very important mechanism that applies also to e-document  Eliminates the surprise element we see on TV  Reveals the strength and weaknesses of claim, settlement often follows Settlement- occurs when the parties agree to resolve their dispute out of court  More than 95% of cases are settled out of court Pre-trial conference- is a meeting that occurs between the parties and judge, judge may indicate which party is likely to lose if it goes to trial Page 5 of 14  Can be initiated by the parties or the judge Mandatory mediation program-is a process in which a neutral person-called a mediator-helps the parties reach an agreement Trial:  -while person who is accused of crime generally has the option of appearing before a jury, civil litigation it is almost always decided by a judge alone  -if there’s a jury the judge is responsible for the law the jury is responsible for finding the facts and applying the law  -the court first hears from the plaintiff than the defendant each side provides evidence  Evidence-information provided to support the arguments, in order to get the evidence in front of the court, each side will call ordinary witnesses to testify facts they know firsthand, expert witnesses rely info based on the evidence e.g. how he drives drunk  Examination in chief -the party part who calls a certain witness will question him called  Cross-examine- the other party then vigour sly examines the witness  Adversarial system- each side presents its own events and to attack the other sides story this is believed to be the best way to get the truth  Hearsay evidence-is information witness hears from one else, direct evidence is preferred because it cannot be tested in court  On the basis of evidence the plaintiff has to prove its claim on balance of probability meaning every important part must be probably true. If scale is balanced or favours defendant then defendant wins  while in criminal cases the accused must be proved beyond a reasonable doubt Remedy Now that you won:  When convicted of crime the court may impose fine or prison sentence  Canada courts also use conditional sentences which allows criminals to serve time in their own house  usual remedy in cases is a money judgement against the case  Potential remedies-compensation damages (reimburse plaintiff for loss not punishment), punitive damages (punishment), nominal damages (small $ awarded plaintiff was hurt but nothing serious), specific performance (requires defendant to fulfil a promise), injunction (directing defendant what he can’t and can do), rescission (terminates a contract/returning whatever plaintiff state was before)  important before suing to make sure defendant (judgment debtor-someone liable to pay money) has assets to pay  -possible to garnishee judgement debtor (getting there company to pay) but requires more fees or to seize and sell their assets but there’s a limit, cannot be stripped of all assets, stills needs a way to make income) Appeals what if you lose:  The losing party is often entitled to appeal to a higher court  Appeal court- decides whether a mistake was made in the lower court  Appellant-person who attacks the decision of the lower court Page 6 of 14  Respondent- person who defends the decision of the lower court  -an appeal must be started promptly, normally within 30 days after trial gave its decision  -difference between trial and appeal: 1 judge at trial while 3 or more at appeals, appeal courts do not listen to witness or receive evidence, they just simply listen to arguments between parties, appeal courts deal with deal with law not fact, correct any mistake trial judge made with the law, will only over turn facts if trial judge made a palpable and overriding error  -majority rules in an appeal court, for that reason there are odd amount of judges to avoid ties  -they can affirm the case (trial judge was right), vary some parts (pays 15000 instead of 10000), reverse lower court decision, or retrial if there’s not enough info  Dissent- judges who disagree to write a separate judgment, useful to calling attention to some weakness Litigation costs:  -litigation is an expensive exercise, which the government do with collection of taxes  -most obvious expenses are associated with lawyers, or filing court documents & other services  -lawyers charge a substantial amount of money for disbursement such cost of mailing letters, witnesses  -Judges have discretion for one party to pay the cost of the other  Costs- expenses that a party incurred during litigation many get relief from the court o in that case losing case usually hurts twice because they pay for the other party o Party and Party basis - awarded by judgment or court order, winner still pays some costs o Solicitor and client- loser pays a much greater share of the winners actual costs but on
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