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Final Exam notes

16 Pages

Law and Business
Course Code
LAW 122
Peter Wilson

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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 businessPersonal relationships family friends relationshipEducation school parents teachersWork employers employees customersNature of Law o Natural law derived from the concept of natural rights essential rightsRevolutions wanted natural rights to which everyone is entitledInternational 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 contento Canadas law Canada is both natural and positive law Maps of the law o Canadian lawCommon law concerned with judgemade legal precedent Civil law minimal relevance of judgemade legal precedento 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 legislaturesCommon law body of legal rights and obligations arising out of judges rulingo Canadian lawPublic 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 contract o Public lawConstitutional law describes Canadas 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 boardsCriminal 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 murderTax law rules for the collection of money by the governmento Private lawContract 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 unfairTort law a private wrong may be deliberate intentional tort or consequence of carelessness negligence business torts conspiracy deceitProperty law acquisition use and disposition of property real land and buildings personal moveable items intellectual inventions creations booksCanadian constitution dominant source of Canadian lawo Establishes Canadas system of government division of powers between federal government establishes and confirms the essential rights and freedoms of all Canadians through the Chartero 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 authorityo Residual power the authority over all subjects not specifically mentioned in the Constitution resides with the federal Parliament telecommunications air travelLegislation 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 countryo 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 bylawsCannot 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 ConstitutionChapter 1 Charter of Rights and Freedoms Canadian Constitution describes Canadas 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 1Charter 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 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 suedUnincorporated 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 limitationsClass actionso 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 actionCommon issuesRepresentative plaintiffNotification a workable plan for notifying class membersPreferable 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 expertise o Paralegals may be retained they are licensed and their conduct is governed by the law society of Upper CanadaThey are limited in what they can doPleadings o Plaintiff statement of claim reply to the statement of defense defense to counterclaim if needed o Defendant statement of defense counterclaim possiblyo 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 plaintiffs 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 claimedMotions parties can bring a contentious matter refusal to provide particulars before a judge on a motion 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 governmento Rules for civil procedure provide for time periods within which the other party has to respond Pretrail activityo Examinations for discoveryEach 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 caseo Pretrail conferenceAny informal meeting with a judge to review the case and obtain their opinion as to the likelihood of success not bound by the judges opiniono Mandatory mediationA requirement in ON for most civil actionsAn attempt by a mediator to effect a settlement is the primary objective of the pretrail 95 dont go to trailTrail o Most civil actions are before a judge alone the rule is for the plaintiff to lead evidence in support of its positionOrdinary witnesses testify as to the facts what they saw heardExpert witnesses provide information and opinion based on the factsInitial examination in chief of its witness defendant will question the witness in the cross examinationThe party engaged in cross examination has greater leeway in the aggressiveness of the questioning After the plaintiff called all their witnesses the defendant calls their witnesses vice versaPresenting 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 plaintiffs case must be determined to be probably true Appeals 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 ruleso Appellate courts do not hear witnesses or evidence considered on the basis of law Court systemSCC Canadas highest court since 1949 established in 1875 by the Supreme Court Acto The Chief Justice of the SCC is the Chief Justice of Canada judges are appointed by the federal governmento At least three judges must be appointed from QB and ON two from the west and one from Atlantic Canada
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