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LAW MIDTERM GUIDE!.docx
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Department
Law and Business
Course
LAW 122
Professor
Asher Alkoby
Semester
Fall

Description
TOPIC PAGE BRIEF SUMMARY FURTHER NOTES (IE. FOOTNOTES) CHAPTER ONE: RISK MGM'T AND SOURCES OF LAW Risk Strategies 4 Risk Avoidance, Reduction, Shifting and Acceptance Insurance and 5 Liability (done wrong) and Property Exclusion/limitation clauses (damaged, lost or destroyed) Insurance Overview of the Law: Diagram 8 n/a Public Law 8 to 10 Constitutional, Administrative, Criminal and Tax Laws Private Law 10 to 11 Law of Torts, Contracts and Property The Constitution 12 "Document that creates the basic rules for (1st Source of Law) Canadian society, including its political and legal systems Division of Powers 12 to 14 Sections 91 and 92, Residual Power, Ultra Vires, Doctrine of Paramountcy Charter of Rights and Freedoms 14 to 16 Fundamental Freedoms, Mobility Rights Not for private businesses: protected by federal of and Equality Rights provincial legislation Charter Limits 16 to 17 Property and Economic Rights, Gov't *Term "government" can refer to Parliament, Action, Corporations, Reasonable Limits, legislatures, police and community colleges Notwithstanding Clause *Not all freedoms under Section 2 applies to companies *Notwithstand Clause: Parliament or legislature can override Section 2 (Fundamental Rights) or Section 15(Equality Rights) but NOT Section 6 (Mobility Rights) Charter Remedies 18 to 19 Declaration, Injunction, Striking down, Severance, Reading Down or In, Damages Legislation: The Legislation 20 Introduce bill, 1st, 2nd and 3rd readings, *Provinces and territories DO NOT HAVE SENATES Process Senate, Her Majesty's Approval (2nd Source of Law) Subordinate Legislation and 20 to 21 Type of subordinate legislation: Muncipalities Municipalities, By-Laws The Courts 21 to 22 Three meanings of "Common Law": (3rd Source of Law) Systems, Source and Courts Law and Equity 22 to 23 Courts of Law and Court of Equity/Chancery, Trusts. Settlor, Trustee, Beneficiary CHAPTER TWO: LITIGATION AND ALT. DISPUTE RESOLUTION Who can sue and be sued? 29 to 30 Corporations can sue or be sued. Trade unions, Gov't being sued Class Actions 30 to 32 Common Issues, Rep. Plaintiff, Notification, Residents of the Ont. are automatically included in Preferable Procedure, Certification class action unless they have opted out Benefits  Cheaper for all, quicker settlement, taken more seriously Legal Representation 32 to 34 Self, Lawyers, Paralegals, Professional In-house counsels are expensive BUT increases Liability Insurance, Assurance Fund chances that potential problems will be identified before they become a major problem Pleadings 34 to 36 Limitation Period, Statement of Claim and Most claims started within 2 years from day Defence, Counterclaims, Default Judgment, plaintiff discovered cause of action Reply, Demand for Particulars Pleadings must be stamped and recorded by court official Pre Trial Activity 36 Examination for Discovery 1. Parties (Plaintiff & Defendant) meets in front of court reporter 2. Questions asked under oath by opposite lawyers (can be used as evidence in trial) Settlement, Pre trial conference, Mediation The Trial 36 to 37 Evidence, Adversarial System, Balance of Prove beyond a reasonable doubt for: Criminal Probabilities, Beyond a Reasonable Doubt cases only The Remedy 37 Enforcement 37 to 38 Judgment Debtor, Garnishee (employer Judgment: defendant found liable and pays money pays), Seize and Sell to plaintiff Appeals 38 to 39 Appeal to higher Court, Palpable and Job: hear and read argument from parties or overriding error, Reversing, Vary, Re-trial lawyers Deals with LAW NOT FACTS DO NOT listen to witnesses or receive evidence MAJORITY RULES! Costs 39 to 40 Party and Party Basis, Solicitor and Client P-P Basis: less than winning party has to pay their Basis lawyer [settlement: you refuse to settle with my offer and ends up I am liable for less] S-C Basis: loser pays for greater share of winner's actual costs (only for exceptional cases) [settlement: I refuse your offer and ends up I am liable for more than offer] New: Partial Indemnity and Substantial P-I: Provides winner with 40-50% of their actual Indemnity costs S-I: covers 70-80% Costs based on: # years of experience, # hours spent on case, type of proceedings Federal Court: Double Party and Party If defendant liable for at least the amount Costs contained in plaintiff's settlement offer Contingency Fees 41 Contingency Fee Agreement Pros and Cons Pros: Sue without fear of being BROKE AS HELL!, Encourage lawyer to settle faster Cons: Pay more if case wins! [ie. Allows lawyer to keep 25 to 40% of everything you won] Supreme Court of Canada and 42 to 43 Highest Court in country, NOT a trial court, Hears appeals from other appellate courts [RARE Court of Appeal Process to have appeal heard EXCEPTION] Apply for leave; passes only if national importance Superior and Federal Courts 43 Superior: hear trials/ Federal: only cases dealing with fed. Gov't Provincial Courts: Small Claims 44 to 45 Small claims, Family matters, Youth Small claims courts: limited amount of money Courts matters, most criminal cases $25,000 Pros: faster, simplier, cheaper, rules less complicated Cons: geographical, types of claims, types of remedies, monetary limits Court Hierarchy: Diagram 46 to 48 Doctrine of Precedent, Rule of Law "Requires court to follow any other court above in its hierarchy Rule of Law: disputes settled on basis of LAWS NOT PERSONAL OPINIONS Administrative Tribunals 49 to 52 Privative Clause Clause: statutory privision to prevent court of exercising judicial review over tribunal decisions Judicial Reviews 51 to 52 Reasonableness, Correctness, Four Part Test, Rules of Natural Justice Remedies on Judicial Reviews 52 Certiorari, Prohibition, Mandamus, Struck down, Not to proceed with matter, Tells to Declaration perform correctly, Enforcable statement of parties rights and obligations Alternative Dispute Resolution 53 to 54 Voluntary, Business Disputes, Pros and Examples: int'l sales, franchises, employment, Cons consumer protection, leases, Professional fees, Intellectual Property, Sports Advantages  Saves money, relationship, less time consuming, bad publicity, private, control Disadvantages  No safeguards (don’t have all info to make settlement), Power, Can’t appeal a decision ADR: Negotiation 55 Aimed at settling dispute, Pros and Cons Pros: quicker, cheaper, less complicated, control process and decide outcome, keep on good terms, private procedure to avoid bad publicity Cons: May not come to solution if parties non co- operative, drag out matter, unequal bargaining power, too less publicity ADR: Mediation 55 to 56 Third party, mediator helps parties reach Pros: in control of process (selects mediator), agreement control outcome (non-binding), not required to obey orders, mediator doesn't GIVE decision ADR: Arbitration 56 Neutral third person, arbitrator imposes Pros: select own arbitrator, maintain ongoing decision on parties relationships, confidential Arbitration caluse, submit to binding Cons: cannot control outcome, usually required to arbitration obey someone else's decision CHAPTER THREE: INTRODUCTION TO TORTS Torts vs Criminal Law 63 to 64 Obligation, remedies differences Tort Law: Private Law, Defendant owes obligations to plaintiff, remedy: compensatory damages Criminal Law: Public Law, Accused owes obligation to society, Gov't prosecutes accsued, punish (fine/imprison) Torts and Contracts 64 to 65 Similarity: Structure/ Differences: Source Structure: primary obligations: how people ought of Primary Obligations, Privity, to act/secondary obligations: tell people how they Compensation, Risk Management must act after primary broken Source of Primary Obligations: Torts -> imposed by law/ Contracts -> created by parties Privity: Torts -> no need for special relationship / Contracts -> Doctrine of Privity states only people who can sue or be sued are parties themselves Compensation: Tort -> looks backwards /Contracts -> looks forwards Risk Management: Tort -> Taken by surprise and require to provide more than capable of/Contract - > never taken by surprise and never require more than they can provide Strict Liability 66 to 67 Person does something wrong without NOTE: Enough that defendant was responsible for intending to do so & without acting situation resulted in plaintiff's injury carelessly No proof needed of any intentional or carless wrongdoing ie. Animals and Rylands v Fletcher Liability Insurance 69 to 70 Pay damages on behalf of person who Compensatory Function: fully compensate people incurs liability, DUTY TO DEFEND, who are wrongfully injured Compensatory, Deterrence Deterrence Function: discourages people from committing torts by threatening to hold them liable for losses they cause **WILD ANIMALS VS TAME ANIMALS P.68 FOOTNOTE 14 Vicarious Liability 70 to 72 One person held liable for tort committed ie. Vehicle Owners by another Claim from both employer and employee, employers bear responsibility! Not liable for independent contractors Remedies: Compensatory 73 to 74 Limitations Limits: plaintiff can only recover ONE, either from Damages TORT or CONTRACT Remoteness Remoteness: responsible only for losses defendant CAUSED, but NOT if connection too remote -> decide if reasonable person would realize might cause harm plaintiff suffered Mitigation Mitigation: plaintiff took steps to minimize losses resulting from defendant's tort Remedies: Punitive Damages 74 to 75 Intended to punish, unusual Remedies: Nominal Damages 75 Symbolically recognize defendant Small sums awarded committed to tort even if plaintiff didn't suffer loss Remedies: Injunctions 75 Court order requiring defendant to do something or refrain from Alternative Compensation 76 to 77 Allows injured to receive compensation Worker's compensation: series of tradeoffs -> Schemes without bringing action in tort workers lose right to sue in tort for injuries but gain right to claim $$ without proving that anyone was at fault from fund No Fault Insurance: prevents action in tort unless victim's losses are especially serious Pros: Provided compensation more often, operate no fault basis, less lengthy disputes and investigations Con: less money CHAPTER FOUR: INTENTIONAL "Intentional rather than careless conduct” TORTS Assault 83 to 84 “Defendant intentionally causes plaintiff to1. NOT based on PHYSCIAL CONTACT/ 2. Enough reasonably believe offensive bodily contact is that plaintiff REASONABLY BELIEVED bodily about to happen” contact would occur/ 3. Plaintiff doesn't need to be frightened/ 4. Threat must be immediate Battery 84 "Offensively bodily contact" 1. Defendant causes something to touch plaintiff (even its clothes or something they're holding/ 2. Offensive even if not harmful (ie. Kissing) or highly beneficial REASONABLE FORCE! Invasion of Privacy 85 to 87 Indirectly protected by other torts ie. Trespass to Land, Breach of Confidence, Abuse of Private Information, Misappropriation of personality, negligence Crime of Voyeurism: secretly observing/recording False Imprisonment 87 to 90 "Person confined within fixed area without I. NO PHYSICAL PRISON/ PHYSICAL FORCE justification" NECESSARY (ie. Psychological) Call cops arrest: REDUCE liability not ELIMINATE! 88 Malicious Prosecution Proof: "Defendant improperly causes plaintiff to 1. defendant started proceedings be prosecuted" 2. out of malice or improper purpose 3. without honestly believing on reasonable grounds that a crime has been committed 4. plaintiff acquitted of alleged crime 89 Rules under Criminal Code: Police Officers Arrest anyone if: 1. being act of committing crime 2. having committed serious crime in past 89 Private Citizens (including security guards) Arrest ONLY IF crime is ACTUALLY BEING Section 494 of Criminal Code COMMITTED by suspect ***READ FOOTNOTES 30, 31 AND 32 REGARDING ARRESTS*** Trespass to Land 91 to 93 "Defendant improperly interferes with Using REASONABLE FORCE to remove customer plaintiff's land" Remedies 92 1. Compensation 2. Nominal (ie. If no loss) 3. Punitive (ie. If really bad) 4. Injunction (if ongoing) -> consider defendant's motivation, cost of removing SUMMARY OF TORTS 93 Assault, Battery, False Imprisionment, Malicious Prosecution, Trespass to Land Interference with Chattels 94 to 96 Trespass to Chattels occurs -> destroying, damages, takes or uses "defendant interferes with chattels in plaintiff's goods plaintiff's posession" Remedy: compensatory damages Tort of Conversion occurs when ->takes, detains, uses, buys, sells, "defendant interferes with plaintiff's damages, or destroy's plaintiff's property chattels in a way that is serious enough to Required: BUY AT MARKET VALUE justify forced sale" Detinue Right of Recaption: allows person to take their own "defendant fails to return chattel plaintiffshit back! entitled to possess" ie. Shoekeeper grabbing stolen watch away from shoplifter who is triyng to leave store Defences to Intentional Torts: 97 to 99 1. Consent COMPLETE "Person voluntarily agrees to experience an interference with their body, land or goods" ..Expressed or Implied ie. Hockey ONLY EFFECTIVE WHEN: FREE AND INFORMED (ie. Not if tricked or threatened) 2. Legal Authority ie. Power of arrest by police officers, Meter readers "Provides person with lawful right to act in certain way" 3. Self Defence NOTE: threat is to land or chattels -> never "Right to protect oneself from violence and reasonable cause death or serious injury threat of violence" 4. Necessity FEW AND RARE !!!!! "defendant's actions were justisfied by emergency” Defences to Intentional Torts: 99 to 100 1. Provocation PARTIAL "words or actions causing reasonable person to lose self-control" 2. Contributory Negligence Apportion or divide responsibility on basis of "plaintiff partially responsible for injury parties' fault defendant caused CHAPTER FIVE: MISC. TORTS AFFECTING BUSINESSES Conspiracy 106 to "2+ defendants agreeing to act together NO TORT if 1 person inflicts an economic injury on 107 with primary purpose to cause plaintiff to another suffer a financial loss" HARD TO PROVE!!\ Lawful actions -> difficult b/c requires proof primary purpose = hurt plaintiff Unlawful acts -> agree to commit a tort violate Criminal Code requires proof should have known Intimidation 107 to "Plantiff suffers loss as result of defendantsTwo Party Intimidation: defendant DIRECTLY 109 threat to commit unlawful act against coerces plaintiff into suffering loss plaintiff or third party" Three Party Intimidation: Defendant coerces third party into acting in a way hurts plaintiff 108 1. Plaintiff must prove defendant threatened to commit an unlawful act (ie. Crime/tort/BOC) NOTE: Supreme Court stated threat to break contract NOT intimidation if defendant reasonably believed threat was lawful 109 2. Threatened party must have given in to intimdation 3. No need to prove defendant intended to hurt plaintiff Note: Can occur even if tortfeasor was motivated by desire to benefit themselves! Interference with Contractual 109 to "Defendant disrupts contract that exists b/w Relations 110 plaintiff and third party" 109 DIRECT Inducement to Breach of Contract 1. Defendant MUST KNOW ABOUT CONTRACT "defendant directly persuages third party texisting b/w plaintiff and third party break contract with plaintiff" 2. Defendant MUST INTEND TO CAUSE third party to breach contract Note: Defendant DOES NOT have to intend to HURT plaintiff (ie. Desire to benefit self) 110 3. Defendant MUST ACTUALLY CAUSE third party to break its contract with plaintiff 4. Plaintiff MUST SUFFER A LOSS as a result of defendant's actions 110 INDIRECT Inducement to Breach of SAME FACTORS + proof defendant actions were Contract unlawful "defendant indirectly persuades third partyFootnote 11: Defendant must have intended to BOC to break contract with plaintiff" even if they didn't intend to hurt plaintiff Unlawful Interference with 111 to "Defendant commits an unlawful act for the 1. INTENT TO INJURE Economic Relations 112 purpose of causing plaintiff to suffer economic loss' 2. MUST be an UNLAWFUL or ILLEGAL ACT 3. Plaintiff MUST SUFFER ECONOMIC LOSS; ie. Revenue earned SUMMARY: BUSINESS TORTS UNLAWFULNESS INTENT TO HARM Conspiracy Defendant's acts may be UNLAWFUL or LAWFUL ACT -> hurtin
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