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Law 122 Chapter Notes

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Department
Law and Business
Course
LAW 122
Professor
Jane Monro
Semester
Winter

Description
Law 122 Chapter Notes Winter 2013 LAW122 Chapter Notes Chapter 1 – Risk Management and Sources of Law Risk Management - The process of identifying, evaluating and, responding to the possibility of harmful events. Risk Avoidance - Steering clear of potentially damaging situations altogether. (i.e. Refusing to engage in an activity that carries risk/liability) Risk Reduction - Instead of assuming entire risk, receiving collateral to ensure you cannot lose. (i.e. Offering mortgage) Risk Shifting - Making sure that you cannot be singled out as responsible for payment of damages though avenues such as hiring independent contractors (vicarious liability, having insurance (paying a fee to be covered financially in case of an incident), having exclusion/limitation clauses (Parking lot signs that state the owners of the lot assume no responsibility for damages to vehicles), or operating as an Incorporation (providing limited liability status to shareholders, CEOs and board members) Risk Acceptance - Accepting that damage or loss might occur, and that other avenues to prevent this would not be feasible. (i.e. – Being aware of issues and risks and dealing with them as they arise) Law - A rule that can be enforced by the courts. Civil Law - Trace their history to ancient Rome. The only civil law jurisdiction in Canada today exists in Quebec. Common Law - Trace their history to England - exists in rest of Canada, Australia, New Zealand and most of US. Jurisdiction - A geographical area that uses the same set of laws. Public Law - Concerned with Governments and how they deal with their citizens • Constitutional Law – Basic rules of our political/legal systems; who is entitled to create and enforce laws. Establishes fundamental rights and freedoms • Administrative Law – Concerned with creation and operation of administrative agencies and tribunals. “Corporate/Business law” • Criminal Law – Deals with offences against the state (people who break laws) • Tax Law – Concerned with the rules that are used to collect money for public spending. Page | 1 Law 122 Chapter Notes Winter 2013 Private Law - Concerned with the rules that apply in private matters. Usually a dispute between two private persons, however it is possible for a private individual to sue a public body (suing the city for failing to ensure building codes were met). Private law is usually divided into three main parts (Tort, Contract & Property). The Law of Torts - A private wrong, or offence against a particular person. Can be further divided into three forms of Torts. • Intentional torts (Assault, false imprisonment) • Business torts (Deceit, conspiracy) • Negligence (Careless damage/Injury to another) The Law of Contracts - Concerned with the creation and enforcement of agreements – especially important in business. The Law of Property - Concerned with the acquisition, use and disposal of property which can be divided into three main forms. • Real Property, which involves land and things attached to land (structures, buildings...) • Personal Property, which involves things that can be moved from one place to another (vehicles, computers, furniture) • Intellectual Property, which involves things that consist of original ideas (patents, trademarks, copyrights) Three Sources of Law - Constitution, Legislation and courts. Constitution - A document that creates the basic rules for Canadian Society, including our political and legal systems. Every other law in the country must be compatible with it. It cannot be changed, except through amendments. Division of Power - Canada is a Federal country because it has two levels of government, each having their own areas of rule where laws can be created and enforced. • Federal – The Parliament of Canada, which governs the country as a whole, consisting of Members of Parliament elected from each province and territory. Composed of political parties, the majority of which run the country, and the leader of that party is the Prime Minister • Provincial/Territorial – Thirteen elected bodies of Legislature, similar to Parliament, with the leader of the majority of parties being the Premier of the province/territory. Residual Power - Gives the federal government authority over everything that is not specifically mentioned in the constitution, including things that did not exist when it was written. (i.e. – Telecommunications, Air Travel, Internet laws) Ultra Vires - When a government tries to make laws outside its area. (“Beyond the Power”) (i.e. – Banning the production of Margarine.) Intra Vires - When a government acts within its scope of power. (“Within the Power”) (i.e. – Banning the importation of Margarine.) Page | 2 Law 122 Chapter Notes Winter 2013 Three main sections of the Charter; Fundamental - Everyone has the following freedoms Freedoms • Freedom of conscience and religion (Section 2) • Freedom of thought, belief, opinion and expression, incl. freedom of the press and other media of communication • Freedom of peaceful assembly • Freedom of association 2- Mobility Rights - Every citizen of Canada has the right to remain in and leave Canada. (Section 6) - Every citizen of Canada and every person who has the status of Permanent Resident of Canada has the right… • to move to and take up residence in any province; and • to pursue the gaining of livelihood in any province Equality Rights - Every individual is equal before and under the law and has the tight to the (Section 15) 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. - Subsection (1) does not preclude any law, program or activity that 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 or physical disability. Property Rights - The rights to enjoy property. Economic Rights - The rights to carry on economic activities. Chapter 3 - Introduction to Tort Law Tort - Generally consists of a failure to fulfill an obligation that was imposed by law. Tortfeasor - A person who has committed a tort. Tort vs. Crime - Torts are against private obligations, Crimes are against public obligations. Page | 3 Law 122 Chapter Notes Winter 2013 Tort vs. Contract Similarity: - Both involve primary obligations (what you ought to do, and secondary obligations (remedial actions for breaking primary obligations) Differences: - Source of Primary: Tort  Imposed by law Obligations Contract  Created by parties - Privity: Tort  Anyone can be sued, because torts are imposed by law Contract  Only the parties in the contract can be sued, because they agree to the terms. - Compensation: Tort  Must return Plaintiff to position previously enjoyed at outset of the tort. Contract  Expected to put Plaintiff in position expected at contract end. - Risk Management: Tort  Imposition by law ∴ more likely to take a person by surprise, and may require more than a person can give/provide to fulfill duties. Contract  Obligations are created voluntarily ∴ should never take a party by surprise, and never require more than the parties believe they can provide. Types of Torts - Intentional Torts: Occur when a person intentionally acts in certain ways. Some torts require proof that the defendant intended to do harm, other are satisfied by proof that the defendant chose to act in a certain manner even if they didn’t realize the plaintiff would be hurt. - Negligence Torts: Occur when an individual acts carelessly. - Strict Liability Torts: Occur when a person does something wrong without intending to do so and without acting carelessly. It is enough that the defendant was responsible for the situation that resulted in the plaintiff’s injury. (Very specific and rare form of tort law) General Principles - Three main concepts of Tort Law • Liability Insurance • Vicarious Liability • Remedies Liability Insurance - A contract in which an insurance company agrees, in exchange for a price, to pay damages on behalf of a person who incurs liability. This also includes a duty to defend. Page | 4 Law 122 Chapter Notes Winter 2013 Duty to Defend - A requirement of an insurance company to pay the expenses that are associated with lawsuits brought against the insured party. Compensationary - Aims to fully compensate people who are wrongfully injured. Function Deterrence Function - Discourages people from committing torts by threatening to hold them liable for the losses they cause. Vicarious Liability - Occurs when an employer is held liable for a tort that was committed by an employee. Independent - A worker who is not as closely connected to the employer’s business as an Contractor employee, and therefore cannot cause vicarious liability to an employer. Remedies - There are four main types of remedies available in tort. • Compensatory Damages • Punitive Damages • Nominal Damages • Injunctions Compensatory - Standard remedy for tort or contract. In tort, it is used to return the plaintiff to Damages the position prior to the tort. In contract, it is used to put the plaintiff into the position intended at what would have been the end of the contract. Remoteness - Defendants are only responsible for the losses that it in fact caused. If the connection between the tort and the loss is too remote, the court will not award damages for them. Mitigation - Occurs when the plaintiff takes steps to minimize the losses that result from the defendant’s tort. Compensation will not take place if the plaintiff does not make a reasonable attempt to mitigate their losses. (i.e. if someone fails to take reasonable precautions before engaging in an activity, [wearing recommended safety gear, getting vaccinated). Punitive Damages - Damages with the sole reason of providing punishment for a tort, usually applied in supplement of another form of compensation. Defendant must have acted in a “harsh, vindictive, reprehensible and malicious” manner. Nominal Damages - Compensation rewarded to the plaintiff, even if they did not suffer any loss, as a symbolic recognition that the defendant committed a tort. They are usually awarded in very small amounts, even as low as $10. Injunctions - A court order requiring a defendant to refrain from doing something. Page | 5 Law 122 Chapter Notes Winter 2013 Chapter 4 – Intentional Torts Intentional Tort - Involve intentional as opposed to careless conduct. Assault - Occurs when a defendant intentionally causes a plaintiff to reasonably believe that offensive bodily contact is imminent. • Is not based on offensive physical contact – based on the simple reasonable belief that such contact will occur imminently. Battery - A tort consisting of offensive bodily contact. • Does not require physical contact – can come in the form of a weapon, or if the defendant makes contact with the plaintiff’s clothing, or something the plaintiff is holding. • Cannot be in the form of normal social interaction – such as bumping into someone in the subway, or a crowded street. However it can be considered battery even if the contact is highly beneficial to the plaintiff (i.e. CPR, pushing someone out of the way of a car that would hit them.) Invasion of Privacy - Privacy is a tricky area of law, as personal rights of some and the freedom of expression and freedom of information right of others is always in conflict. Furthermore, damages of invasion of privacy are often hard to calculate compensation for (i.e. embarrassment, humiliation) Privacy is instead protected indirectly by several torts. (Trespassing, breach of confidence, etc.) False Imprisonment - Occurs when a person is forced to be confined in a fixed area without justification. A physical prison is not required, can be committed by locking someone in a car, or set adrift on a boat. Does not even have to be a physically forced detention, can be a psychologically forced act, such as intimidating someone and telling them to stay in an area. Malicious Prosecution - Occurs when the plaintiff improperly causes the defendant to be prosecuted. Focus on fact that the defendant has to face criminal proceedings, rather than imprisonment itself. Trespass to Land - Occurs when the defendant improperly interferes with the plaintiff’s land. Interference with Chattels Chattels - Movable forms of property. (Furniture, Vehicles, Books.) Three most important torts in relation to chattels: • Trespass to Chattels • Conversion •Detinue Trespass to Chattels - Occurs when the defendant interferes with chattels which are in the plaintiff’s possession – such as causing damage to an expensive painting, or damaging a vehicle. Page | 6 Law 122 Chapter Notes Winter 2013 Conversion - Occurs when the defendant interferes with the plaintiff’s chattels in a way that is serious enough to justify a forced sale. Conversion can be applied in examples such as the defendant caused so much damage to an item that they were required to pay the plaintiff market value for the item in exchange, or if the plaintiff’s item was vandalised or stolen. Conversion can be applied even if the defendant is a seemingly innocent party – for example if they are caught with property they purchased from an individual that stole it. Detinue - Occurs when a defendant fails to return a chattel that the plaintiff is entitled to possess. Recaption - The right of a person to take back possession of their property. Complete Defence - Complete defences protect the tortfeasor from all liability, there are four main defences: • Consent • Legal Authority •Self-Defence •Necessity Consent - Consent is a reasonable defence to all intentional torts and can be express or implied. It exists if a person voluntarily agrees to experience an interference with their body, land or goods. If the plaintiff knowingly agreed to the possibility of restriction of freedom unless their requirements were fulfilled, the defendant cannot be found guilty. (i.e. Not being allowed to remove your car from a repair shop without paying for services, or being left at a job site until a shift ends.) Legal Authority - Provides a person with a lawful right to act in a certain way, and therefore cannot lead to liability in tort. Self-Defence - Consists of the right to protect oneself from violence and the threat of violence. There is a fine line between respecting the natural reaction to fight back and the danger of giving people an excuse to cause harm. Necessity - This applies if the defendant’s actions were justified by an emergency situation, and immediate decisions to act had to be made. Partial Defences - Allows a court to reduce damages on the basis of the plaintiff’s own responsibility for a loss or an injury. There are two main defenses: • Provocation •Contributory Negligence Provocation - Consists of words or actions that would cause a reasonable person to lose self- control. This entitles plaintiff to damages for a physical attack, but not for full damages. Contributory - Occurs when the plaintiff is partially responsible for the injury that the Negligence defendant caused. Damages are awarded but reduced to reflect the plaintiff’s contribution to the injury. Page | 7 Law 122 Chapter Notes Winter 2013 Chapter 5 – Miscellaneous Torts affecting Business Conspiracy - Usually occurs when two or more defendants agree to act together with the primary purpose of causing the plaintiff to suffer a financial loss. Intimidation - The tort of intimidation occurs when the plaintiff suffers a loss as a result of the defendant’s threat to commit an unlawful act against the plaintiff or a third party. In order for a tort of intimidation to be valid, the plaintiff must: i) Prove the defendant threatened to commit an unlawful act (crime/tort/breach of contract/etc.) ii) Threatened party has to have given into the intimidation. iii) As long as the other elements of the tort are established, there is no need to prove that the defendant intended to hurt the plaintiff. For instance, intimidation may occur even if the tortfeasor was motivated by a desire to benefit itself, rather than injure the plaintiff. The two forms of intimidation are: • Two-Party Intimidation – Where the defendant directly coerces the plaintiff into suffering a loss (i.e. “I’ll beat you up if you don’t close your business”) • Three-Party Intimidation – occurs when the defendant coerces a third party into acting in a way that would hurt the plaintiff (i.e. Union threatening a strike unless you fires the plaintiff. Direct Inducement - Occurs when the defendant directly persuades a third party to break its to Breach of Contract contract the plaintiff. Liability requires four factors. st 1 ) Defendant must know about the contract that exists between the third party and plaintiff, but does not need to know details. 2 ) Defendant must intend to case the third party to break that contract, but intention to hurt plaintiff not required. 3 ) The Defendant must actually cause the third party to break its contract with the plaintiff – for example, making arrangements with the third party that would make it impossible for the third party to fulfill obligations to plaintiff. Indirect Inducement - Occurs when the defendant indirectly persuades a third party to break its to Breach of Contract contract with the plaintiff. It requires same proof as Direct Inducement, plus proof that the defendant’s actions themselves were unlawful. Unlawful Interference - Occurs if the defendant commits an unlawful act for the purpose of causing With Economic the plaintiff to suffer an economic loss. Relations Deceit - Occurs if the defendant makes a false statement, which it knows to be untrue, with which it intendeds to mislead the plaintiff, and which causes the plaintiff to suffer a loss. Includes: • Telling Half-Truths •Failing to Update Information Page | 8 Law 122 Chapter Notes Winter 2013 Occupiers’ Liability - Requires the occupier of a premises to protect visitors from harm. Nuisance - Occurs when the defendant unreasonably interferes with the plaintiff’s use and enjoyment of its own land - can involve physical or non-physical interferences. Statutory Authority - Means that the defendant caused a nuisance while acting under legislation, and the nuisance was an inevitable result. Defamation - Occurs when the defendant makes a false statement that could lead a reasonable person to have a lower opinion of the plaintiff. The tort of defamation can be applied even if the defendant did not intend to refer the plaintiff negatively, can be made by any sort of living person/persons (including things such as corporations), and the defaming statement must be proven to be referring to each defamed person personally. Slander vs. Libel - Slander is spoken defamation while Libel is written defamation. Publication - Defamation cannot exist without publication, which is the communication of a defaming statement to a third party. A new tort can be accounted for each time that a statement is repeated. Justification - Occurs only when the statement is true. Privilege - An immunity from liability. Come in the forms of: 1) Absolute privilege – Complete Immunity, which is used when the law needs individuals to communicate without fear of being sued. 2) Qualified privilege – Applies whenever the defendant has a legal, moral, or social obligation to make a statement and the statement is being made to someone who had similar duty or interest in receiving it. Public Interest - Occurs when a journalist, despite getting some facts wrong, acted in Journalism accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear. Fair Comment - An expression of an opinion regarding a matter of public importance, which must be intended to protect informed opinions, and be concerning an issue of public interest. Page | 9 Law 122 Chapter Notes Winter 2013 Injuries Falsehood - Occurs when the defendant make a false statement about the plaintiff’s business that causes the plaintiff to suffer a loss. The statement must prove to be false, an act of malice and caused a loss. This tort can take a variety of forms such as: • Slander of Title – Claiming the plaintiff does not actually own an object it is trying to sell. • Slander of Quality - The defendant disparages the quality of the plaintiff’s products, causing potential customers to take business elsewhere. Chapter 6: Negligence Tort of Negligence - Determines whether the defendant can be held liable for carelessly causing injury to the plaintiff. Duty of Care - Exists if the defendant is required to use reasonable care to avoid injuring the plaintiff. There are a number of tests for determining the existence of duty of care: • Reasonable Foreseeability – This test is objective, in that the issue is not to see if the plaintiff personally knew, that its activities would injure the plaintiff, it is whether a reasonable person would have known. • Proximity – There must somehow be a close and direct connection between the two parties, such as physical proximity, or a social/commercial relationship) Policy - Whether or not liability should be denied on grounds that the plaintiff’s position or title implied a duty of care – very tricky grounds for courts as it a very grey area. Standard of Care - Tells the defendant how it should act. When this is not met, and the defendant has acted carelessly, it has breached its duties. Page | 10 Law 122 Chapter Notes Winter 2013 Chapter 7: The Nature and Creation of Contracts Consensus ad idem - A share mutual agreement to enter into an enforceable transaction on a (Meeting of the minds) particular basis. Steps required in order to create a contract: 1) Both parties must have an intention to create legal relations. - Arises if a reasonable person would believe that the parties intended to create a legally enforceable agreement. This test is more objective than subjective – a judge would look at what a reasonable person would have thought – not the thoughts of the actual party. Also looks at reasonable expectations – i.e. I gave you money, and expect to receive my product, even if secretly, you intended to keep my money and the product. 2) They must reach a mutual agreement through the process of offer and acceptance. - Offer must be made (by “Offeror” to the “Offeree”) which an indication of a willingness to enter into a contract on certain terms. 3) They must enter into a bargain by each giving consideration. Invitation to treat - Not classified as an “offer” rather an indication of a willingness to receive an offer. Individual who presents an offer is still offeror, and individual who presented the invitation is offeree. Communication - A statement is not an offer unless it is communicated and received as an offer. of an Offer Life of an Offer - Offers are valid until accepted or denied, or until they are revoked, a designated time period has passed, one of the parties passes away or loses mental capacity, or a counter offer is made. Firm Offe
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