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Midterm

Midterm Notes - Combination of textbook and in class lecture.docx

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Department
Commerce 
Course
COMM 231
Professor
Joseph Radocchia
Semester
Fall

Description
Chapter 1 – Law, Society, and Business Rule of law – established legal principles that treat all persons equally and that government itself obeys Public law – law involving the govt.; regulates the conduct of govt. and the relations b/w govt and private persons Private law (civil law) – law that regulates the relations between private persons and groups of private persons Legal liability – responsibility for the consequences of breaking the law Criminal liability – responsibility arising from commission of an offence against the government or society as a whole Regulatory/Quasi-criminal liability –responsibility arising from breaches of less serious rules of public law, often enforced through specialized regulatory tribunals set up by the govt. for specific purposes Civil liability – responsibility arising from a breach of a private law, enforced though a lawsuit initiatied by the victim Who Makes Law? 1. Govt (Constitution) Basic law – a constitution that is habitually obeyed by the citizens of a country and that they regard as legitimate and binding 2. Courts Case law – a collection of individual cases decided by the courts that develop and shape legal principles 3. Administrative Tribunals; legislation Statute – a piece of legislation passed by government Regulations – administrative rules implemented by government as a result of authorization given in a statute -- Ultra vires – beyond the powers and therefore void Residual powers – powers that fall within federal jurisdiction because they are not expressly allocated to the provinces by the Constitution Concurrent powers – overlapping powers of both levels of government to regulate the same activities The Charter of Rights and Freedoms (part of constitution – 1982) – places limits on many aspects of government action and protects human rights - Applies to govt. and governmental activities; limited application b/w private persons (Human Rights Code) Human rights – recognized entitlements encompassing traditional freedoms associated with civil liberty and basic human necessities Private rights – individual rights arising from private law Burden – the requirement that, unless a party can establish facts and law to prove its case, it will lose Charter Sections 1. Reasonable Limits Clause -balance our rights in a reasonable way - law meeting reasonable objective (consumer protection – young children vulnerable  limited time of day of advertisement); freedom of speech – permissible Fundamental Freedoms 2. religion, speech, association (protest peacefully, unions) Democratic Rights 3. right to vote Legal Rights – 7. remain silent (police must inform you) through arrest and trial; right to full disclosure (all info. collected against you, so you can defend yourself) 8. Right to be secure against unreasonable search and seizure (police come to your home -> need permission from you OR a warrant (court order)) 9. Right not to be arbitrarily detained or imprisoned 10. Right on arrest or detention – to counsel or get lawyer; be informed of reasons 13. Right to self-incrimination – similar to 5 amendment of US; right to not testify against yourself (goes with right to remain silent) Equality Rights 15. Right to equal protection w/o discrimination based on race, ethnic origin, colour, relgion, sex, age, mental/physical disability Language Rights – 16. (English/French fed govt services) Not Withstanding Clause 33. govt (fed/prov) can suspend rights (accommodation made for Quebec), override parts of Charter - Applies to S. 2, 7-15. Not 16 b/c Trudeau wanted to make sure Canada was bi-lingual - Only lasts 5 years and must pass it again - Sets bad precedent -> where does it stop? Chapter 2 – The Machinery of Justice Substantive law- the rights and duties that each person has in society Procedural law- rules that deal with how substantive rights and duties may be enforced Common law – the case-based system of law originating in England and covering most of English speaking world – based on the recorded reasons given by courts for their decisions Civil law- the system of law involving a comprehensive legislated code, derived from Roman law that developed in continental Europe and greatly influenced by the Code Napoleon of 1804; French civil law (Quebec Civil Code – only applies in Quebec) State decisis – to stand by a previous decision; latin for precedent rule Overrule – to declare an existing precedent no longer binding or effective -Municipalities govt. created by statutes passed by provincial govt Subordinate legislation – law created by administrative agencies whose authority is granted by statute in order to carry out the purposes of the leglislation Codify – set down and summarize in a statute the existing common law rules governing a particular area of activity Strict interpretation – courts apply the provisions of a statute only where the facts of the case are covered specifically by the statute Liberal approach – statutory interpretation that considers the legislative intent, purpose, and history of the statute, as well as the context of the language Courts of Chancery/Equity – fairness, if felt can’t get proper decision in the restrictive court of common law; both courts merged overtime Equitable remedies – new remedies created by the courts of equity to address situations where money damages did not solve the problem Specific performance – an order by a court of equity to carry out a binding obligation Contempt of Court – a finding by a court that a party has refused to obey it and will be punished The System of Courts in Canada SCC Fed. Court of Prov. Court of Appeal Appeal Fed. Court Superior Courts Tax Court Trial Divison of First Instance Inferior Courts of First Instance Standing to sue – the person who didn’t breach contract; has a right to sue Intervener status – don’t have a direct relation to case; ex. North Albertans didn’t like cruise missiles; they went to court and other groups (Op. Dismantle) had an interest about dangers & ask to participate Plaintiff – party that commences a private (civil) legal action against another party Res Judicata – a case that has already been decided by a court cant be brought before a court again; applies to class action; EXCEPTION: new info. not available before, other party fraud Stages in Litigation Process; plaintiff starts court case 1. Pleadings – docs. filed by each party to an action providing information it intends to prove in court 2. Discovery – process allowing either party to examine the other in order to narrow the issues 3. Pre-trial – conference with judge/mediator; issues in dispute are reviewed in attempt to settle as many as possible 4. Trial – Private (civil) – burden of proof is on the plaintiff to prove their case Standard of proof – the balance of probabilities; enough evidence to convince a judge that it is “more likely than not” Hearsay – words attributed by a witness to a person who is not before the court 5. Appeal (Apellant and Respondent); only given evidence already been reviewing; need to show trial judge made a true mistake a. Uphold – lower court dec. (don’t change it) b. Overturn in part c. Overturn in whole/entirely d. Overturn and remit to new trial – technical/legal issue caused mistake; trial judge didn’t accept certain evidence Fees – - Canada has “loser pays” rule; part of the winning party legal costs paid by losing side - USA: contingency fees – a fee paid for lawyers services only if the client is successful; no charge if the client is unsuccessful; most Canadian provinces accept contingency fee arrangements now Alternative Dispute Resolution (ADR) 1. Negotiation 2. Mediation –neutral 3 party chosen by both parties or sometimes court appointed; no decision making power, only helps parties come to a common solution/settlement; parties sign mediation agreement (mediator can’t be called to testify at trial); “without prejudice” – if mediation fails, nothing can be used against parties If a success: Write up minutes of severment – lays out terms, confidential, how the case was resolved, paid, what needs to be done; if fails: “Mediation has failed” 3. Arbitration -Arbitrator makes final (binding) decision; conducted similar to trial but less strict; parties decide how arbitration is conducted; some cases already have a structure (ex. ex-employee and union) Arbitration Act – usually final/binding b/c parties gave up right to review/appeal for efficiency sake; parties may reserve right to appeal; some cases, mediator can become arbitrator ---The Legal Profession Barrister (British; to go to court)/Solicitor (Don’t go to court; office work)/Lawyer/Attorney(American term for lawyer) Chapter 3 – The Law of Torts NOT CRIMINAL LAW Tort - a wrongful act causing harm to the person or property of another Purpose: tries to put victim back to the position they would be in had the wrong not been done; compensate - A case can have both tort/criminal aspect (tort must be intentional; Tort: Battery; Criminal: Assault) Historically, 1. Strict Liability approach by courts – “prima facia on its face” – liability that is imposed regardless of the fault; plaintiff must show situation really occurred -> then defendant must establish they did nothing wrong (more responsibility); onus reverse to defendant 2. Overtime, too strict/unfair and is barely used today. Now, Fault based approach – plaintiff has burden of proof to prove that the defendant caused harm
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