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Final Exam notes

Law and Business
Course Code
LAW 122
Peter Wilson
Study Guide

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Chapter 1: Nature and Sources of Law
Why study law?
o The law describes, defines and intrudes on every aspect of life and business
Personal relationships (family, friends, relationship)
Education (school, parents, teachers)
Work (employers, employees, customers)
Nature of Law
o Natural law: derived from the concept of natural rights, essential rights
Revolutions: wanted natural rights to which everyone is entitled
International human rights
o Positive law: encompasses the rules, rights and obligations enacted by Parliament and the legislatures or
derived from the decisions of the court
The legal system is the processes and institutions involved in the creation, interpretation and
enforcement, no moral content
o Canada’s law: Canada is both natural and positive law
Maps of the law
o Canadian law:
Common law: concerned with judge-made legal precedent
Civil law: minimal relevance of judge-made legal precedent
o Canadian law:
Constitution: supreme law, all other laws must conform to the requirements of the constitution
Legislation: enacted by Parliament and the provincial and territorial legislatures
Common law: body of legal rights and obligations arising out of judge’s ruling
o Canadian law:
Public law: rights and obligations of Canadians to all levels of their government
Private law: rights and obligations of Canadians in dealing with each other, the government is subject
to private law when it deals with persons in the context of private matter (government as a party to a
o Public law:
Constitutional law: describes Canada’s government framework, the distribution of power among
federal government, provinces and territories, how laws are enacted and confirms basic rights and
freedoms in Canada
Administrative law: governs the establishment and operation of government agencies, boards and
commissions (worker compensation boards)
Criminal law: offenses against the state, actions which may be private in nature but are also
determined to be offences against the community as a whole (murder)
Tax law: rules for the collection of money by the government
o Private law:
Contract law: creation and enforcement of contracts, the means for the purchase and sale of product
services, it can be verbal or written, long or short, simple or complex, fair or unfair
Tort law: a private wrong, may be deliberate (intentional tort) or consequence of carelessness
(negligence), business torts (conspiracy, deceit)
Property law: acquisition, use and disposition of property, real (land and buildings), personal
(moveable items), intellectual (inventions, creations, books)
Canadian constitution: dominant source of Canadian law
o Establishes Canada’s system of government, division of powers between federal government, establishes and
confirms the essential rights and freedoms of all Canadians through the Charter
o Ultra vires: when a government legislates in an area outside its constitutional authority
o Federal paramounty: federal legislation and authority prevail where federal and provincial governments take
conflicting actions based on their respective areas of constitutional authority
o Residual power: the authority over all subjects not specifically mentioned in the Constitution resides with the
federal Parliament (telecommunications, air travel)
Legislation: second source of law after the Constitution, law created by Parliament and the provincial and territorial
legislatures reflected in acts that they have passed
o Act passed in Parliament applies to the entire country
o Subordinate legislation: statutes grant authority to others to create more specific rules because they are not a
complete statement of all legal rights
Regulations to statutes, power granted by Parliament, municipal by-laws
Cannot contradict the terms of the statutory provision under which it is effective
Common law: legal system inherited from England; settled or accepted legal rights arising out of judges’ ruling
o Cannot negate or override a legislative statute or the Constitution
Chapter 1: Charter of Rights and Freedoms
Canadian Constitution: describes Canada’s government (Parliament, provincial and territorial legislatures, division of
power between the two, how legislation is passed)
o Transfers control from UK to Canada
o Adds the Charter of Rights and Freedoms to the Canadian Constitution as Part 1
Charter scope:
o Stage 1: was there a violation of one or more of the rights; is yes go to stage 2
o Stage 2: was the violation a government action; if yes go to stage 3
o Stage 3: was the government action exempt from s. 33; if not go to stage 4

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o Stage 4: was the violation acceptable under s. 1 as a reasonable limit justifiable in a free and democratic society;
if no there is a sustained charter violation
Chapter 2: Court System, Litigation and Alternative Dispute Resolution
Civil litigation process:
o Any person, including legal persons (corporations) can sue or be sued
Unincorporated cannot
o The party who commences legal action is the plaintiff; the party defending the legal action is the defendant
o Governments may be sued, there are various statutory restrictions governing claims against the government
(time limitations)
Class actions:
o Lawsuits by a person or group of people on behalf of a much larger group of claimants (In ON, class actions
require leave (permission) of the court)
o Criteria for commencing a class action:
Common issues
Representative plaintiff
Notification: a workable plan for notifying class members
Preferable procedure: the court must be satisfied that class action is preferable procedure for dealing
with claims
Legal representations:
o Parties may represent themselves, obvious advantages to retain legal counsel (knowledge of law, court room
o Paralegals may be retained, they are licensed and their conduct is governed by the law society of Upper Canada
They are limited in what they can do
o Plaintiff: statement of claim, reply to the statement of defense, defense to counterclaim (if needed)
o Defendant: statement of defense, counterclaim (possibly)
o Other: demand for particulars, motions
Statement of claim: factual statement of the complain by the plaintiff
Statement of defense: factual rebuttal by the defendant to the statement of claim
Reply: response by the plaintiff to the statement of defense
Counterclaim: claim by the defendant against the plaintiff
Statement of defense to counterclaim: plaintiff’s responses to counterclaim
Demand for particulars: after the final exchange of pleadings, each party can issue a demand for
particulars, requiring clarification of what the other party has claimed
Motions: parties can bring a contentious matter (refusal to provide particulars) before a judge on a
o The parties must ensure that the action is commenced within the applicable time period
Two years for civil proceedings
Special rules for certain proceedings against the government
o Rules for civil procedure provide for time periods within which the other party has to respond
Pre-trail activity:
o Examinations for discovery:
Each party is entitled to question the other party for information regarding the case
This is done not in court under oath, and what is said can be used at the trial
Each party is entitled to obtain any documents from the other party relevant to the case
o Pre-trail conference:
Any informal meeting with a judge to review the case and obtain their opinion as to the likelihood of
success, not bound by the judges opinion
o Mandatory mediation:
A requirement in ON for most civil actions
An attempt by a mediator to effect a settlement is the primary objective of the pre-trail (95% don’t go
to trail)
o Most civil actions are before a judge alone, the rule is for the plaintiff to lead evidence in support of its position
Ordinary witnesses testify as to the facts (what they saw, heard)
Expert witnesses provide information and opinion based on the facts
Initial examination in chief of its witness, defendant will question the witness in the cross examination
The party engaged in cross examination has greater leeway in the aggressiveness of the
After the plaintiff called all their witnesses, the defendant calls their witnesses (vice versa)
Presenting of evidence is subject to strict rules; only direct evidence is allowed
The onus resides with the plaintiff to prove its case, each element of the plaintiff’s case must be
determined to be probably true
o The losing party may appeal the decision to a higher court, but need leave from the SCC; appeals are heard by a
panel of three judges- majority rules
o Appellate courts do not hear witnesses or evidence, considered on the basis of law
Court system:
SCC: Canada’s highest court since 1949, established in 1875 by the Supreme Court Act
o The Chief Justice of the SCC is the Chief Justice of Canada, judges are appointed by the federal government
o At least three judges must be appointed from QB and ON, two from the west and one from Atlantic Canada

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Appellate court only, does not do trials
Appeals are heard in panels of 5, 7 or 9- majority rules
Courts of appeal:
o Each province and territory has
o The number of appellate court judges varies with jurisdictions
Superior court:
o Trial court
o Judges are appointed by the federal government
o ON superior court has 51 locations, hears civil, criminal and family law matters
Provincial courts:
o Trail court
o Judges are appointed by the provincial government (small claims, family matters, most criminal cases)
Ontario court of appeal:
o Hears civil and criminal appeals, Charter appeals, and family law appeals
Federal court:
o By the minister of justice or the PM
o Cases are removable from office only for cause and by resolution of the senate and HOC
Court system and law are generally founded on precedence and the judicial doctrine of stare decisis
(let the decision stand)
All courts are bound by the SCC
Administrative tribunals:
o Exists to resolve disputes in certain areas of the law and economy
o Less formal than courts, members are often non-lawyers and rarely judges (selected for their expertise in the
particular area)
Alternative dispute resolution:
o Alternative court systems
Less costly, less formal, mediators can be selected by the parties to the dispute, confidentiality, more
time resolution
o Three types: negotiation, mediation, arbitration
Between the parties, failing which they will introduce a mediator, failing which the dispute will be
submitted to binding arbitration
Chapter 3: Introduction to Torts
Torts: common law doctrine legally imposed code of personal conduct
o Legal rights, duties and liabilities generated by judge-made law
o Private wrong: a failure to fulfill a private duty imposed by law
o Public wrong: breach of duty owned to the state (criminal offence)
o The person (corporations, who are legal persons) who commits a tort is referred to as a tortfeasor
o Tort in contrast to contract: parties voluntarily enter into a contract; in contrast, a tort is a private wrong arising
from a general duty owed to each other
o Privities: a contractual duty applies only to the parties to the contract
o Contractual damages: compensate for the loss incurred because the party in breach failed to fulfill their
obligation (look forward assessment)
o Tortuous damages: compensate the victim for any consequential loss or costs incurred (loss of wages’ look
backward assessment)
Types of torts:
o Intentional trots: an action intentionally undertaken by a person causing injury or damage to another
For certain torts the intention must have been to injure or damage another
For others, the intention must have been only to act in a certain way, not necessarily to cause injury
o Negligence: a careless act causing injury or damage to another
Whether they intended the action is irrelevant
o Strict liability: the tortfeasor did not intend to commit a wrongful act, nor did the act arise from their
It is sufficient that the action caused or resulted in injury or damage
Rare; restricted to situations where the actions of the tortfeasor result in dangerous situations
Offenses under the Occupational Health and Safety Act
The only defense is proof that the party who caused the situation exercised due diligence
Vicarious liability: legal liability is assessed against one person for the actions of another
o Parents legally liable for the actions of their children
o Employers liable for their employees
o The Church liable for their ministers or priests
o Social policy reasons for vicarious liability:
Deterrence incents employers to take particular care in the people they employ
Compensation: expands the range of those liable to compensate the injured party
Fairness: it serves a broader community purpose to hold employers, the Church, and parents
responsible for the actions of their people
o Compensatory damages: calculated to place the injured party in the position it occupied before the tortuous act
occurred (backward looking)
Contrast damages for breach of contract, designed to place the innocent party in the position it would
have occupied had the contract not been breached (forward looking)
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