MGT393H5 Study Guide - Midterm Guide: 6 Years, Alternative Dispute Resolution, Precedent

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Published on 18 Feb 2015
School
Department
Course
Overview of Canadian Legal System
Why study law?
Effect success/failure in business
Impact decisions made by businesses (location, product, marketing, ideas and business
property)
Legal consequences affect profit / losses
Part of risk management and advice provided by managers
3 steps of risk management
1. Identification (recognize legal risk – who held liable?)
2. Evaluation (assess legal risk – chances of something wrong)
3. Response (reaction of legal risk)
Forms of risk management
Risk avoidance: elimination of risk – withdraw dangerous good from market
Risk reduction: minimization of risk – modify product to reduce danger
Risk shifting: make risk someone else’s problem – buy liability insurance for losses caused by
danger – outsource (transfer delivery of goods risk to another company)
Risk acceptance: choose to live w/ risk – do nothing
Operation of legal system: political process, environment, sociology
Law = rules that govern individual in given society (different society = different rules)
Sources of Law
Constitution: charter of rights and freedoms  deals w/ powers of provincial, federal, municipal
charter
Statutes: RSO, RSC, etc  laws created by municipalities called Bi-Laws
Common Law – judge made law (precedence) – creates law
Precedents – consider jurisdiction of same province, date of precedent  next time similar
case occurs, must follow previous solution
Purpose of stare decisis – certainty, predictability, continuity
Stere decisis – court stands by previous decisions  similar case solution followed
Trial Level (Supreme court of justice) 1 judgeAppeal – binding (SCC (supreme court of
canada) 3 judges  OCA (Ontario court of appeal)) 9 judges
Civil Action
Bringing claim (prepare statement of claim w/ material facts on which plaintiff relies) defending
claim (prepare statement of defense and serve to plaintiff, file copy w/ court together w/ proof
service)  discovery (list all relevant docs in party’s power, possession, control) setting action
down for trial (set action down for trial) pre-trial conference (judge on own initiative at request
of party, direct parties to attend pretrial conference) trial (plaintiff/defendant make opening
statements, examined, closing arguments)
Limitation Period: period w/ which action must be started
Civil lawsuit can only sue within certain amount of time when you become aware of
breach of contract (2 years typically), no time limit for crime
Traditional length of period – 6 years for contract, 2 tort, 20 years to recover land, 7 days to
sue city
Civil Procedure  expensive, public, can take years
Alternative dispute resolution (ADR) dispute resolution outside of court (negotiation,
mediation or arbitration)  hire private judge and agree to be bound by it
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Adv: quick, cheap, controlled, cooperative, private, can be win win situation as less
expensive
Class Action  multiple claims against single defendant joined together in one action – claimers
can share cost of litigation (e.g. product liability, mass torts (toxin spreads by industrial disaster)
Requirements: common issue among all class members, rep plaintiff who act in interest
of all class members, notification to all potential members of class, preferable procedure
to individual claims, certification by court to allow class action
Costs (loser pays)  party vs party (based on scale of fees) – if hire expensive lawyer, will not get
all $ back for legal fees even if you win, do get some reimbursment , solicitor vs client (actual) –
consider implication of offer to settle on costs
e.g. Jan 10: legal fees = $100,000 + cost
april 10: offer settle w/ plaintiff for $400,000 yet settlement offer not accepted
during trial defendant wins
instead defendant gets paid by plaintiff – you must pay
if had settled – would not have paid legal fees
Case Analysis  Facts, Issue, Law, Analysis, Conclusion
Jury decides facts, judge decides law
Taxable Entities: individuals (T1), corporations (T2), trusts (T3)
Employment income + business income + property income + other income + taxable capital
gains – deductions allowed by ITA – employment loss – business loss – property loss – other =
taxable income
Partnership: relation which subsides b/w persons carrying on business in common w/ view to
profit
Elements of Partnership
1. Some form of agreement  express or implied (not necessary parties intended to create
partnership)
2. Common Business for common profit  common interest in benefit from joint activity
3. Other practical – contractual relationship, mutual trust, partners share in partnership
property = never real property
Determining existence of partnership  determined by intentions of parties, sharing of gross
returns does not of itself create a partnership, receipt by person of share of profits = business is
proof in absence of contrary, that person = partner
Joint Tenant: one tenant dies, asset automatically goes to other tenant
Overview of Civil Procedure
1. Statement of claim – alleged issue
2. Serve
3. Statement of defense – defendant file to deny statement of claim
a. Counter claim – defendant could sue plaintiff back
b. Cross claim  defendant sues another party (separate) another party
c. 3rd party claim  enter law suit
4. Affidavit of documents  all docs related to law suit released between both parties except
convos between lawyer and plaintiff/defendant
5. Examination for discovery  ask questions based on evidence to other parties, etc
6. Motions  quantum of results (how much to pay back)
7. Pretrial
8. Trial
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Document Summary

Why study law: effect success/failure in business. Impact decisions made by businesses (location, product, marketing, ideas and business property: legal consequences affect profit / losses, part of risk management and advice provided by managers. Identification (recognize legal risk who held liable?) 1: evaluation (assess legal risk chances of something wrong, response (reaction of legal risk) Risk avoidance: elimination of risk withdraw dangerous good from market. Risk reduction: minimization of risk modify product to reduce danger. Risk shifting: make risk someone else"s problem buy liability insurance for losses caused by danger outsource (transfer delivery of goods risk to another company) Risk acceptance: choose to live w/ risk do nothing. Operation of legal system: political process, environment, sociology. Law = rules that govern individual in given society (different society = different rules) Constitution: charter of rights and freedoms deals w/ powers of provincial, federal, municipal charter. Statutes: rso, rsc, etc laws created by municipalities called bi-laws.

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