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Comm 393 POWER NOTES.doc

25 Pages
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Department
Commerce
Course Code
COMM 393
Professor
A L L

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Description
Commerce 393 Midterm Summary NotesI Dispute ResolutionACourt Systems and ProceduresProvincialI Court of First Instance Small Claims Criminal Traffic Court Family CourtII Provincial Court III Supreme Court IV Court of Appeal V Supreme Court of CanadaFederalI Tax Court of Canada II Federal Court of Canada Trial III Federal Court of Canada Appeal IV Supreme Court of CanadaCourt of Appealparty appellant unsatisfied with decision of courtrespondentthe other partylawyers only argue questions of lawnot a trial no witnesses calledThe Civil ProcessCivil Wrong ie Breach or TortLitigant Consults SolicitorWrit of Summons IssuedWrit Served on Defendant optional Third Party NoticeThree Options i accept claims ii enter an appearanceif ii Defendant Enters an AppearancePleadings I Statement of Claimstate factsdamages suffered II DefenceCounterclaimadmit factsdeny othersadd new facts Counterclaim III Reply and Defence to Counterclaim1 yrDiscoverypldef under oath xchg documents list witnesses prevents surprises at trial1yrTrialTrial Max Compensation 40 for court costsBSources of Law Substantive Law rights and duties of each personPublic Law and Private Law Procedural Law protects and enforces rights and duties Common law based on the recorded reasons given by courts for the their decisions stare decisis to stand by a previous decision theory of precedentover time prior decisions become increasingly important Equitable Remedy if1 is inadequate2subject is unique to K3fast feetmust bring legal action quickly4clean handsyour conduct as a plaintiff is goodCAlternate Dispute ResolutionrdiNegotiationwo assistance of 3 partyrdiiMediationN3P neutral 3 party facilitates process outcome in control of partiesiiiConciliationN3P party acts as gobetween conflicted partiesivArbitrationN3P makes decisions regarding issues of dispute parties have more control over process but fewer options with appeal of outcomevAdjudicationN3P listens to conflicted party parties have no control over process may appeal outcomeAdvantages of ADR1Speed2Cost3Choice of adjudicatormediator4Confidentiality5Preserving ongoing relationshipsII FORMATION OF THE CONTRACT AOffer and acceptance writing We have contracts for land must be in writing to be enforceableA contract for a personal guarantee must be in writing to be enforceableElements for every contract1 Intent 2 Offer 3 Acceptance 4 Consideration 5 Capacity 6 Legality1IntentLaw Both parties must intend to be bound by their promisesPresumption that intent exists where the parties are strangers or in commerce generally business relationshipsPresumption between family members it is presumed that they would be paid backLaw if rebutted would a reasonable person looking at the outward conduct of the parties say they showed intent to be bound by their promises Law if a co is present the old contract is cancelled But not every suggestion is a co depends on intent2Offer Proposal and IntentContains terms and conditions must be unequivocal Carbill vs CarbolicLaw Advertisementsinvitation to do business Offeror controls i Terms ii how long offer is open foriii how acceptance should be madeOffer expires lapses when
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