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MCS 3040 midterm

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Marketing and Consumer Studies
MCS 3040

MCS Midterm #1 – Key Term Definitions Chapter #1 Definitions Law  Consists of rules with penalties that are likely to be enforced either by courts or by other agents of government Substantive law  Substantive Law, body of law concerned with rights and obligations, as opposed to Procedural Law, which concerns how to enforce and defend such rights and obligations.  The Rules determining behavior Common law  The Canadian provinces and territories except for Quebec adopted a system of law derived from England, referred to as common law  The judge looks at prior case law and choose the particular case that moat closely resembles the one at hand Rule of law  The principle that everyone is subject to the law and legal process  Part of the constitutional tradition inherited by Canada from England  Canada would have a constitution similar in principle of that of the United Kingdom Paramountcy  The business person may face both federal and provincial statutes that apply and it is not possible to obey both  When this happens and there is a true conflict, the federal legislation takes precedence over the provincial. Mobility rights  Section 6 of the Chart of Rights and Freedoms  The right to live and work in any part of Canada, as well as to enter and leave. Questions of fact  Where a jury is involved, it’s function is to hear evidence and decide questions of fact.  What happened that gave rise to the action?  Jury is guaranteed under the Charter of rights and Freedoms for any case with a potential penalty of over 5 years Default judgment  The plaintiff initiates action by issuing a writ of summons, registering it with the court and serving it on the defendant. The defendant responds by filing an appearance as an indication that the matter will be disputed  If the defendant fails to file an appearance, the plaintiff can proceed to judgment without any further notification to the defendant and is considered default judgment Notice of action  Includes the statement of claim which contains a summary of all the allegations that the support the cause of action (summary of what plaintiff says happened)  In Ontario the action is commenced with an issuance of a notice of action. Direct examination  The trial usually begins with an opening statement by the lawyer for the plaintiff, followed by the witnesses called by the plaintiff who respond to questions from the plaintiff’s lawyer Cross-examination  As each of the plaintiff’s witnesses testifies, the defendants lawyer has the opportunity to cross- examine.  The types of questions that can be asked are much broader on cross-examination than direct examination  Leading questions where the question suggests the answer are permitted in cross-examination and not direct-examination  The opposite happens for the defendants witnesses Strict liability offences  Where only fines can be levied, it may be sufficient to prove that the offensive conduct took place  The only defense normally available for strict liability offenses is that the accused acted with due diligence which means that the person to the appropriate steps to ensure that the offensive conduct wouldn’t take place Chapter #2 Definitions False imprisonment  A type of intentional tort amounting to trespass to another person  An imprisonment done improperly or without authority is an actionable false imprisonment  When a person demands another person to accompany them or even remain in a certain location an the person complies thinking they don’t have a choice, as imprisonment has taken place.  If the person really has committed the crime for which he can be arrested and is caught in the act anyone has the authority to arrest them.  Where no crime has taken place the imprisonment is false and the person can sue Trespass to land  Involves someone coming on to another’s land without permission or authority  A person can be a trespasser without even realizing they are on somebody else’s property because it’s considered a trespass as long as it’s done voluntarily  A trespass can also take place indirectly when somebody throws something onto the land or where a permanent incursion takes place.  Trespass can take place if someone overstays their welcome, causes damage or breaks the rules of the premise.  The owner can eject them with reasonable force after giving them a warning and enough time to leave.  Trespassers are responsible for any damage they cause to the property Mistake  Mistake is no defense for defamation, you must be sure of what you say  Defamation is a false statement about someone to his or her detriment Negligence  Of all the ways of incurring liability in tort, negligence is by far the most important for the business person  Involves inadvertent or careless conduct causing injury or loss to another. Must be clear that negligence is not a state of mind  Involve failure of one person to live up to a standard of care required in his or her dealings with others  Requirements of Negligence Action Must Establish o Duty to Take Care – that injury or loss was reasonably foreseeable o Failure to Take Care – That the conduct complained of fell below the reasonable person standard (or other standard imposed by statute) o Causation and Damage – That the conduct complained of caused loss or injury to the plaintiff Contributory negligence  If it could be shown that the person who was suing had also contributed to the loss, the courts assign proportional liability, making both parties responsible for the loss  Amount awarded are changed based on the appropriate calculations  When contributory negligence is present the court reduces the amount of compensation paid to the victim of negligence when the victims own carelessness contributed to the loss Voluntary assumption of risk  People who deliberately put themselves in harm’s way are disqualified from suing for the injury or loss that results  Complete bar to recovery of loss  To raise this defense, the defendant must show that the injured party voluntarily put himself or herself in danger  Must also show that he or she did so in such a way as to absolve the defendant of any legal responsibility for the consequences  The victim must have assumed the physical and legal risks Privity of contract  The principle that only the parties to a contract have obligations under it is referred to as privity of contract  When there is no contractual relation between the parties, the only option is to sue for negligence  In tort action fault must be demonstrated in addition to showing that the defective product cause the injury  The plaintiff must show that the defendant was negligent, having failed to live up to the standard of reasonable manufacturer in the circumstances Fraud  When a person intentionally misleads another, cheating him or her out of money or obtaining some other advantage, this is fraud or deceit  Such fraud can amount to criminal conduct Product defamation  Defamation has many different forms, and one way it can take place is when false information is intentionally spread to harm the sales of a particular product.This is called injurious falsehood or product defamation Trespass to chattels  Takes place when someone damages or otherwise interferes with some item of personal property such as vehicle or other equipment Chapter #3 Definitions Consensus  Normally achieved through a process of offer and acceptance, which results in a shared commitment when both parties clearly understand the obligations and responsibilities they are assuming  The bargaining process includes enticements, offers, questions, arguments, and counter-offers, until the parties eventually reach an agreement, when a valid offer is accepted.  The courts are willing to find that a consensus has been reached by looking at the subsequent behavior of the parties Offer and acceptance  Process used to achieve a consensus  The bargaining process includes enticements, offers, questions, arguments, and counter-offers, until the parties eventually reach an agreement, when a valid offer is accepted.  The court may find that a consensus exists even when no specific offer or acceptance can be identified Offer  The offer creates the first legal consequence  It is a tentative promise that contains the terms of the anticipated contract.  It is tentative in the sense that the other party need only indicate a willingness to be bound by the stated terms (to accept) to create a binding contract  The actual offer only takes place when all of the important terms are present, and it is clear that the person making the offer has reached the point where he or she Is serious and expects to commit to those terms Invitation to treat  Pre-contact communications, do not create contractual obligations  They can take the form of advertising, product or service information, catalogues, brochures, window and floor displays, marked or priced goods set out on a shelf Counter-offer  A counter-offer in offered after a previous offer was denied  Once an offer ends the counter offer is the new offer and all previous offers cannot be accepted unless offer again on a counter offer  A counter-offer ends all previous offers Consideration  The second qualification that must be met for the formation of a contract is the exchange of consideration  Both parties must some benefit from the deal  This may take the form of money, service, goods, or some other type of benefit  It is not necessary for the consideration to actually change hands at the time of the acceptance, both parties must make a commitment to give the other some form of consideration pursuant to the agreement  Often referred to as the exchange of promises Quantum Meruit  When services are requested, the requester is obligated to pay a reasonable amount for the services delivered  What is promised must be possible, legal and of some value Promissory estoppel  An exception to unenforceability of gratuitous or one-sided promises  Promissory estoppel will only be used where there is a gratuitous promise, and then only where it can be used as a defense Seal  An exception to unenforceability of gratuitous or one-sided promises  The use of a seal predates the requirement of consideration and was used to indicate a person’s commitment to the deed or transaction in question  Today, where a seal has been affixed to a document, there is no need to establish consideration  The presence of a seal does not replace the need for consensus or any other requirement of contract law, only consideration Capacity  People are considered incapable of negotiating a contract because they don’t have the capacity  A person's capability and power under law to engage in a particular undertaking or transaction or to maintain a particular status or relationship with another Unenforceable  An unenforceable contract is a valid contract that cannot be fully enforced due to some technical defect.  Unenforceable contract has some legal consequences which may not be enforced in an action for damages or specific performance in the face of certain defenses including the statute of frauds.  A contract may be good, but incapable of proof due to lapse of time, want of written form, or failure to affix a revenue stamp. Chapter #4 Definitions Negligent misrepresentation  The victim was unknowingly mislead  The courts award damages where it can be established that the wrongdoer should have been more careful, in such cases negligence has been established  Damages are available where it can be established that the misrepresentation was fraudulent,, negligent, or where the misleading term became part of the contract Undue influence  It involves the loss of free will to bargain causing the resulting contract to voidable  Instead of force, the unique influence of the other contracting party takes away the free will of the victim  The presumption of undue influence means that in the absence of other evidence to the contrary, simply showing that the relationship exists is enough for the court to allow the victim to escape the contract on the basis of undue influence  Where there is no legal presumption based on the relationship between the parties, the person trying to escape the contract must produce evidence of actual undue influence Unconscionability  Allows the court to set aside or modify the contract on the basis of vulnerability, such as poverty or mental impairment (short of incapacity), that has allowed one party to unfairly take advantage of the other.  It must be shown that because of these factors the bargaining position of the parties was unequal resulting in an unjust contract that was unfair to the victim Discharge by performance  A contract is discharged by performance once both the parties have performed as required under the agreement and there are no further outstanding obligations Chapter #5 Definitions Quiet possession  Implied warranty that requiring the seller to provide quiet possession with respect to the goods supplied  The goods have to be usable as intended without interference Executory contracts  Contracts to be performed in the future  Where executory contracts are involved a written contract is required  The consumer’s obligations, before performance, are limited. Price fixing  The most common form of conspiracy in restraint of trade is simple price fixing  Involves two or more parties agreeing not to sell products below a specified price.  Offences include manipulating the market through the control of the resale price or credit Assignment in bankruptcy  One way that bankruptcy can be accomplished  When a debtor voluntarily transfers his or her assets to a trustee in bankruptcy (a private professional authorized to act in the area)  Voluntary assignment in bankruptcy is a legal process whereby an insolvent organization with debts assigns or transfers its assets to a licensed trustee who then oversees their sale and distribution to various classes of creditors with proven claims Secured creditors  Retain their privilege position with respect to the assets taken as security.  Assets are distributed first to secured creditors  The trustee must surrender the asset to the secured creditor pay out the valuation amount the creditor has estimated for the security Bankruptcy offence  Bankruptcy offenses include failing to disclose information, lying, or transferring property to a spouse or friend  Punishable offence and may ultimately interfere with him or her being discharged from the bankruptcy Preferred creditors  Preferred creditors are paid next after secured creditors  Include funeral expenses, costs of the bankruptcy process, some taxes, and other fess such as employment insurance and worker’s compensation Unsecured creditors  Any amount left over is distributed to the unsecured creditors  Each receives a percentage of what was originally owed  Often the amount they receive is a very small portion of the actual debt, which underlines the wisdom of taking security when debt is created MCS Midterm #1 – Case Summaries Chapter #1 Case Summaries Case name Summary of facts Key concept R v. Clough  Clough was sentenced by a British Columbia Provincial court judge to nine- Provincial supreme month jail term for possession of cocaine for the purpose of trafficking. court judge must  That trial judge refused to follow a court of appeal case in a similar matter follow appeal court decision. where a conditional sentence had been imposed (no prison time), claiming that the case had been “wrongly decided”  ISSUE: was the judge right in refusing to follow the court of appeal decision? Stare Decisis  DECISION/REASON: Overturned the decision and imposed a conditional sentence because the trial judge was bound by the rule of stare decisis to accept the decisions of this court to the extent that they may apply to the case  Judges who are lower in hierarchy are bound to follow the decisions made of the courts above them, even when they think it is wrong. BC AG v Lafarge  A group of Vancouver ratepayers filed an application to require Lafarge to get a Federal law development permit from the city to build a cement plant on Vancouver supersedes city by- waterfront law  Lafarge opposed this, and he lost at that level and appealed it because he felt he was under the jurisdiction of the Vancouver Port Authority (a federal entity created under Canada Marine Act) and it didn’t have to comply with provincial Paramountcy or municipal regulations.  The appeal court decided in favour of Lafarge and the Ratepayers appealed to the Supreme Court.  Supreme Court looked at power granted to province and to the city under the constitution act and decided the municipal by-laws and zoning rules did apply to the Lafarge project. Vancouver Port Authority was properly created under the Canada Marine Act and Lafarge’s project fell within this mandate Walsh v Mobil Oil  When Walsh applied for a field position she was denied because of her gender, Prohibition against the company claimed concern for her well being and safety in the field. Her rate gender of pay was also lower. discrimination and  She eventually got the field position and filed a complaint for gender retaliation. discrimination after.  She was asked to withdraw the complaint and refused, her performance ratings went down and she was terminated shortly after  She brought a second complaint against the company to the Human Rights Commission  The Appeal court found that the lower rate of pay and keeping her back from the position did constitute as discrimination  The court also found that there was sufficient connection between her termination and the complaint and determined that the termination was in retaliation and not for cause AB v Hutterian  In 2003 Alberta government introduced a change in regulation resulting in a Required photos Bros requirement that all driver’s licenses have a photo of the driver and that this beviolate Charter used in a central database rights.  Hutterian Bretherian colonies had religious objections to having their photo used like this and brought this action challenging the regulation as violation of Section 1 limitation their section 2a Charter of Right of Freedom and Religion  The Alberta government acknowledged that this was a violation but argued that it was justified under the section 1 limitation. Was it a reasonable limitation?  The Supreme Court decided that the requirement was justified as a reasonable limit to their right of freedom and religion  For section #1 to apply “The government is entitled to justify the law by establishing that the measure is rationally connected to a pressing and substantial goal, minimally impairing the right and proportionate effects” GVTA v CFS BC  The Canadian Federation of Students went to the Greater Vancouver Freedom of Transportation Authority to arrange to put an advertisement on the side of expression included buses in buses.  The company refused to accept the add because the considered it political in nature and it was their policy to refuse any ads with political content  The student federation brought this action claiming that their section 2b Charter rights (the right of freedom of expression) had been violated  The Supreme Court found if clearly was a valid means of expression.  The charter only applies to government agents but Translink is not a government agent but is completely controlled by local government so it’s still under the charter.  The court also found that these limitations were not a reasonable limit proscribed by law (section 1) and the policies limiting such ads to commercial content and prohibiting any political content clearly infringes on the students’ freedom of expression Castillo v Castillo Expiration of  Mr. and Mrs. Castillo were in the process of moving from BC to Alberta when they were in a single car accident in California. Mrs. Castillo waited till she got limitation period back to Calgary to get medical treatment. causes loss of right  In this action brought in Alberta, Mrs. Castillo is seeking compensation from to sue. her husband, the owner and driver of the vehicle for her injuries after 2 years of the accident  The Alberta limitation period is 2 years, but the California period is only 1 year.  Which limitation period should be applied?  Alberta Court of Appeal found in effect that both limitation periods applied and she had to comply with both.  Since she failed to comply with the California period the action was barred by statute in Alberta as well Lawton’s Drug v Discovery requires  When Mifflin sold their business to Lawton’s Drug Stores, the contract included Mifflin a clause restricting them from opening a similar business in competition the production of  Lawton’s had paid extra for customer goodwill which would be lost if Mifflin customer lists. were to start up again and recapture customer loyalty  Six months later Mifflin opened up a business in competition and Lawton’s Sued for Breach of Contract Requiring disclosure of information  Lawton’s demanded a copy of Mifflin’s customer list and Mifflin refused  The judge ordered that the customer list be produced because it was relevant information about whether the restrictive covenant was beached and to what extent.  To prevent it’s misuse, it was ordered that the list be kept in the hands of the lawyer, not be shown to Lawton and only used for trial purposes Majormaki v  Majormaki Holdings established a prima facie case that they had been Contempt warrants Wong fraudulently induced to pay the defendant 3.5 million to purchase a business jail sentence.  They were granted a Mareva Injunction requiring the Wongs to account for the Mareva Injunction 3.5 million and freeze their assets so that they would be available to satisfy an ultimate judgment  The defendant improperly spent 190 000 and provided plaintiffs with a Prima Facie Case misleading accounting of their assets. Wong’s were found in contempt of the court order, and despite and apology and settlement, Wong was still sentenced to 21 days in jail for contempt  He appealed this action arguing that the judge treated the matter as criminal rather than civil and failed to take into account the apology and settlement  For a criminal contempt to be imposed there has to be an element of public defiance and that was not present when Mr. Wong tried to hide his conduct  The court of Appeal found that although it was unusual for a civil case the jail sentence was appropriate in such a serious case. And the judge also found Mr. Wongs apology not genuine Wong v College of  Wong was employed as a registrar to implement an accounting system and an Fairness vital before TCMPA BC audit determined he had failed to do so. termination.  Report showed that Wong had committed several irregularities including improper overtime pay and expenses and diversion or property belonging to the college.  The board sent him a letter terminating his employment  Mr. Wong claimed he had been improperly terminated because he received no notice or opportunity to respond.  The court of Appeal determined that because this was a statutory position Mr. Wong was entitled to procedural fairness in the termination process  The decision of the board to terminate his employment was overturned because the minimum standard of fairness required notice of the grounds for termination and an opportunity to respond to the accusation Crown v  MacMillan Bloedel’s underground pipeline leaked into a watercourse, and the Due diligence not MacMillan company was charged under the Federal Fisheries Act with allowing a established. deleterious substance to escape, contaminating water frequented by fish  Strict Liability offense in that it is sufficient to prove that the offensive conduct took place to obtain a conviction. The court must decide if the defendant acted with due diligence  The company and government inspector had recently inspected and found no indication of trouble. It was discovered that microbiological corrosion caused the leak, not anticipated  The court of Appeal rejected the company’s due diligence defence because the pipes were old and leaking in general was foreseeable and had no plan in place to deal with any leakage Chapter #2 Case Summaries Case name Summary of facts Key concept Babiuk v. Trann  Babiuk and Trann were on opposing teams in a rugby league Force justified in defense of another  At one point Trann’s teammate was on the ground and Babiuk was stepping on his face, so Trann stepped in a struck Babiuk in the face breaking his jaw  Babiuk is seeking compensation for his injuries  The decision was held for Trann at the trial level and Babiuk’s appeal was dismissed  Was the battery justifiable in protecting another player from being stepped on?  Trann entitled to use reasonable force in protecting his teammate (not retaliating) and his response of a single blow to the face was justified in the circumstances and not excessive Trew v. 313124 Suspicious  Larry Trew was a customer at the store of the defendant Saskatchewan  He seemed suspicious to the clerk and was asked to empty his pockets but Conduct No Ltd refused. He was asked to remain in the store and when he tried to leave he was Defence for False stopped from doing so until the police came
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