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Business Administration
BUS 393
Shafik Bhalloo

CH1–CanadianLegalSystem Division of Law  Law = body of rules with penalties, enforceable by courts and government agencies o May not always be ethical! Eg cheating on your spouse o Business people should make every effort to avoid litigation, settle disputes without going through courts  1. Procedural law = govern legal procedure and how legal institutions wok  2. Substantive law = set out rights and responsibilities, determine behaviour o Public Law – regulates our relationship with government = Crown vs Accused  Eg Constitutional, criminal, administrative o Private law – regulates personal/social/business relationships  Plantiff vs defendant // Appellant vs respondent  Eg Contract, property, tort, family law, employment law Legal Systems  Private law is a provincial matter, so provinces can adopt their own laws  A) Civil Code o Originated with romans, then Napoleon, now still used in some European countries o Quebec’s legal system is based on the French Civil Code o The judge will apply provisions/section of the code to a problem, not bound by precedent  B) Common Law o Used in Britain & Commonwealth, adopted by Canada’s English provinces o Judge-made law developed in courts  When faced with a problem, judge looks to prior cases (brought to judge by lawyers arguing the case) and choose the case that most closely resembles the one at hand  Concept of Precedent = Must follow the decision in previous case, if facts/law similar  Concept of Stare decisis = Decisions of higher courts is binding to lower courts, if same jurisdiction o Other jurisdiction’s precedents are persuasive, not binding o Same level of court, should follow, but not a must  To argue a case is distinguishable, show why/what is different so should not be precedent o Law of equity  Decisions made by Courts of Chancery  Based originally on fairness, developed to counter rigid common law  Courts later merged, courts of chancery don’t exist anymore but its principles remain o Statues/Legislation  Most new law today takes new form of statutes enacted by government legislatures  “Parliamentary supremacy” = legislation overrides common law and law of equity Courts  Provincial court o Small claims court, youth, family, criminal (summary offences), specialized courts (mental health, domestic violence)  Provincial Supreme (Trial court) “Queen’s bench” o Serious civil/criminal matter  Provincial Court of Appeal o Hears appeals from lower, juries only if penalty + 5years for criminal, rare for civil  Supreme Court of Canada o Hear appeals from all provincial courts/federal courts o References cases = question of legal issues from government  Tribunals/Tax courts/federal trial  appeal courts  SCC Constitution BNA Act / Constitution Act 1867  Declared Canada have a constitution “similar in principle to that of UK”  Inherited these conventions from Britain: 1. Rule of Law – all subjected to same law and legal process, no one is above the law  Protects from arbitrary action; government must point to some statue/regulation authorizing them to do what they have done.  The law applies equally no matter race, color, sex, profession, etc 2. Basic fundamental rights - Principles established in Magna Carta, written promise by king that he would rule with respect to his subject’s rights 3. Parliamentary Supremacy – before kings/queen had absolute power, people demanded democracy and right to govern themselves, so now legislature has absolute legislative power – even monarchs and judges is subjected to the law made by government  Main function: divide powers between federal/provincial government under section 91 + 92 o Each supreme in its own jurisdiction. o S91 – fed = banking, military, criminal law + POGG “all other issues” o S92 – prov = health, education, local commerce, solemnization of marriage  Property & civil rights (car, land, property, human rights code)  unless is government institutions problem (bank discriminate and not hire) then it is federal area of dispute o If conflict/overlap – fed wins b/c principle of paramountcy Constitution Act 1982  Gave Canada independence & established amending formula for constitutional change  Added Charter of Rights and Freedoms  prevent government from making a law that is inconsistent with the Charter o With limitation: o S.1 “reasonable limits prescribed by law”  Allows reasonable exception, no rights are absolute!  Eg: violate mobility rights of prisoners, violate guarantee of free speech for those liable for defamation o S.33 notwithstanding clause  Allow government to make a law that overrides section of the Charter (s.2, 7-15)  But comes at a high political cause, must renew every 5 years, used rarely o S.32 charter applies only to government actions  Include all levels of government, government institutions, agents acting on behalf of government  Cannot be used to challenge other infringements on fundamental rights such as discrimination at work place – must seek help from provincial human rights legislation BC Human rights code  Govern private parties/government discrimination/infringement of rights  Applies to all private parties and government  Provincial law; gives all people equal rights and opportunities without discrimination in specific areas such as jobs, housing and services  Prevent discrimination and harassment because of: o race; colour; place of origin; o political belief; religion; o marital status; family status o physical disability (including HIV and AIDS), mental disability, o sex; sexual orientation, o Age (if you are 19 years of age or older); o Criminal or summary convictions, and may extend to conduct /acts that did not result in a charge or conviction, as long as they are unrelated to the job Litigation process  Civil action = plaintiff sue defendant  Many complex steps designed to uncover information and encourage settlement before trial  May represent self or have Lawyers o Barristers = courtroom, litigator o Solicitor = contracts, legal transactions  To sue, actions must be commenced within a limitation period (specified in statues)  May decide/negotiate jurisdiction (more favourable laws, more access) In terms of contract PRE-TRIAL PROCESS  A. Pleadings o P issue writ of summons (BC-notice of civil claim) = start civil action, register with court, served on defendant o D file an appearance = acknowledge matter (if ignored writ of summons, P proceed to judgement “default judgement”) o P issue a statement of claim = identify issue, contains allegations that support cause of action (what paintiff said happened) and nature of legal claim (breach of contract? Negligence?) o D issue a statement of defence (response to civil claim) = state what he agrees/dispute in the statement of claim  Can also issue counterclaim  B. Discovery o a) Examination of documents (each party reveal and copy documents) o b) Examination of party under oath (defendant or plantiff be questioned, recorded transcript)  C. Payment into court o To encourage settlement, party can make formal offers before trial o D may pay money to court inform P to accept, P may make offer he is willing to accept, file with court, D is informed of offer and may accept/reject  if the result was the same as offer, then have to pay the legal costs of other party’s  * class action suits = many plaintiff suffer same loss, represented by one procedure, sue together TRIAL  A) Plaintiff present case first o Has burden of proof, on balance of probabilities (only need to prove P was more correct than D) o Present witness direct examination by P’s lawyers, and cross examination by D’s lawyers  Cross examination (broader, allow leading/suggestion questions)  B) Defendant present case o Bring own witness/evidence - Also direct and cross examination by P’s lawyer o Tries to put enough doubt into plaintiff’s case to plaintiff cannot prove his/her case   Both lawyers summarize case & make arguments  C) Judgement – juries are rare, usually 7 and decision don’t need to be unanimous o Jury = hear the evidence and decide questions of facts (what happened that gave rise to the action) o Judge = instruct jury + decide question of law (what are the legal obligations and what legal rules are to be applied) o If judge alone, he/she determines both facts and law REMEDIES  Once liability is established   A) Standard remedy is defendant pay plaintiff damages = monetary compensation o General damages – non quantifiable losses, eg future wage, pain and suffering o Special – calculate-able, eg medical expense, wage lost o Punitive damage – if action was deliberate, this is to punish, not just compensate  B) If money is not appropriate, can issue equitable remedies o Injunction – stop action, or do something (eg go back to work stop striking) o Specific performance – fulfill terms of agreement (transfer title of house, example: Michael jackson’s gloves) o Accounting - pay for profits earned from misdeed o Mareva injunction – freeze assets of D to ensure they satisfy eventual judgement o Anton Piller order – w/o warning search/seize evidence (assets, docs) to ensure not destroyed o Losing party also pay substantial amount to compensate winners court/lawyer fees ENFORCEMENT  Now referred to as judgement debtor (defendant) and judgement creditor (plaintiff)  Court cannot guarantee payment of damages, Plaintiff must take extra steps to avoid failure of payment o Post-trial hearing = identify debtor’s assets & what steps to execute  eg  Against land = sale or title transfer (land, buildings)  Against personal property = seizure and sale by official (cars, boats, valuable equipment)  Against wages/bank accounts o If debtor fail to comply with injunction/specific performance OR conceal assets/avoid payment – may be charged contempt of court – fines or even imprisonment o ** Is the litigation worth the trouble?  cost a lot for expert witness and lawyer, if debtor is bankrupt/poor it is useless to collect, should consider before sue-ing  Can take some security deposit before conflict arise or have 3 party guarantee debt, then can take possession and resell without court order Alternate Dispute Resolution (ADRs)  Process of resolving disputes outside of courts  1) Negotiation o Discuss problem and reach settlement o May or may not be through lawyers o Have goodwill, willing to cooperate and compromise o ?Agreement may not be legally binding (** but can sue for breach of contract??)  2) Mediation o Neutral Third party act as facilitator and help settle dispute o Mediator find common grounds, help communication, make suggestion – but do not make final decision o Mediation sometimes required in some jurisdiction as part of pre-trial proceedings in civil litigation o Courts may affirm mediated resolution  3) Arbitration o Parties agree on same 3 party (or panel of 3), to make decision that is binding (makes final decision) o Often set out in initial contracts b/t parties, both agree to be bound by decision, but can place limitation of scope of decision (if arbitration is in contract, and one party litigate anyways, court may refuse to hear the case) o Arbitrators are usually specialist in the matter under dispute o Cannot be appealed although procedure may be reviewed by court  Should only resort to courts as last resort! Court cases determine law, so if understand law, can use those standards to help negotiate/mediate/arbitrate disputes, reduce cost and risk  Advantages o Lower cost o Private, less publicity o Avoid delay and lost productivity o Parties maintain control of solution, determine and schedule process o More flexible o Can achieve Win-win resolution  Disadvantages o Not appropriate when there is a power imbalance o Do not follow precedent o Agreements may not be enforceable o Less power to extract information compare to courts o No public record of dispute/decision – don’t satisfy public demands Administrative Law  Regulatory bodies (boards, tribunals, employees of government) that make decisions with respect to the law o Eg human rights tribunal, workers compensation tribunals, employment insurance appeal tribunals, etc o Administrative laws govern how these government institutions are run  Administrative decisions must comply with, else will be void 1. Constitutionally mandated jurisdiction 2. Charter rights 3. Principles of procedural fairness  Fair hearing  Defendant must receive reasonable notice of the hearing  Made aware of what hearing is about so can prepare appropriate response  Given the opportunity to speak before the decision is made  Decision-maker must hear all evidence and not be biased or have personal interest o If violate any of these, the statue OR decision of that tribunal can be challenged/reviewed by courts  Courts may review (NOT appeal) decision process and determine if appropriate  Only consider whether it was proper procedure, not the merits of the decision (eg accounting example, even tho he was at fault and termination was justified, but he did not get hearing so the decision was void)  Privitive clauses = give exclusive authority to tribunals in specific Act o Protect tribunal decision from judicial review  Advantage of tribunals (compared to courts) o More efficient, make decision faster o Involve experts in field under dispute o More cost effective Criminal Law  Civil law = individual sue another for compensation  Criminal law = state prosecutes accused to punish o Federal jurisdiction! – eg Criminal Code, Controlled Drugs and Substances Act, Copyright Act o Provincial can make statutes, only if similar to criminal law in terms of penalties  Crown has burden of proof 1. Must prove beyond a reasonable doubt 2. Act – wrongful conduct actually took place 3. Intent – had intention to commit the act  Defence can try to show no intent (eg insanity) but not ignorance of law  Strict Liability Offences o Only need to prove act, not intent o Only if fines is the punishment o Only defence is due diligence = did take reasonable steps to ensure conduct would not happen (what is reasonably expected)  Power to arrest by police, and some citizen arrest (if see crime committed) o Judicial official issue search warrants, arrest warrants, summons to appear o Accused must be brought to judge within 24 hours of arrest  Categories of crimes o Summary conviction – minor offence, less penalty, shorter judicial process o Indictable offence – more serious offence  Plea bargaining – giving accused opportunity to plead guilty to a lesser offence o Advantage – ensure conviction, avoid lengthy trial/cost, get evidence on others  Trial  o Crown present witness & evidence o Defence present witness & evidence o Decision made by judge/jury o Sentence = fine or imprisonment / conditions, etc CH6–AGENCY&EMPLOYMENTLAW  Independent contractor = performs specific service described in a contract, not ongoing  Dependent contractor = owns separate business, but have an ongoing, dependent relationship w/ one employer  Employee = commits to employer, ongoing, more rules + control from principal Agency  Agent = represent a principal in dealings with third party o Eg plumber order fixtures, restaurant server; store clerk (employees); travel/insurance agents (independent contr.)  Duties: include entering into contracts on behalf of their principal o Not always, eg lawyers file documents, accounts file tax returns  represent the clients but not entering the contract  Created: usually by contract, when principal grants authority to agent to act on his/her behalf rd Principal vs 3 Party Relationship  Agents function as an intermediary, question is how to hold principal responsible for the conduct of agent  Bound in contract, if agent has authority o Actual authority  Expressed = when principal directly grants (eg go meet this client and sell)  Implied = implied from surrounding circumstances (eg sell gas to all car, even tho no specifically said which) o Apparent authority rd  If principal did something to lead 3 party to reasonably believe that the agent has authority, even if agent did not, the 3 party can rely on that representation, agent is said to act within apparent authority  Estoppel: Principal is “estopped” from denying the authority  Thus still bound to contract, where agents acts within apparent authority  Eg store said don’t sell under 70, he sells for 60 anyways, the contract is still binding on store  Distinction from implied authority: there is expressed instructions to agent to NOT act  Not bound anymore, if agent exceeded authority o Ratification = if principal like deal, can ratify, to create a binding contract  Intentionally = principal expressly ratify  Inadvertently = principal take some benefits under agreement (eg deposit check accidently)  Grants retroactive authority to agent (taking effect from a date in the past, as if agent always had authority)  Vicarious Liability = tort by agent, principal also responsible o Employee/Dependent Contractor  if conduct was closely related to job, will be VL  Eg truck driver deliver supplies, run over woman, company responsible too, NOT if buying groceries o Independent Contractor  (more restricted) principal only liable if tort causing injury took place DURING actual exercise of authority granted  Eg fraud or negligent misstatement; but NOT if agent ran over someone while going to see clients  If principal gave false info, and agent innocently passed, then only principal will be responsible o May be imposed by statue  Eg owner of motor vehicle (company) is vicariously liable when lending their vehicle out (to employee) Agent vs 3 Party Relationship rd  Normally, 3 party has no claim against agent  Exception: Tort of “breach of warranty of authority” o If agent exceed authority, 3 party can sue agent for claiming authority not possessed + can claim compensation from agent for what was lost due to unauthorized transaction  Exception: Undisclosed Principal: rd o If agent do not say who principal is, 3 party can sue agent  If goes wrong, normally disclose, then make a binding choice to sue which (cannot change even if no $) o Contract not bound where identity of undisclosed principal is important (eg celeb agree to sing, then send student claiming he (celeb) was acting as an agent for an undisclosed principal (the student) Agent vs Principal Relationship  Fiduciary duty = agent’s obligation to act in the best int
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