Chapter 1-5 Midterm Notes.docx

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Management and Organizational Studies
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Management and Organizational Studies 2275A/B
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Prof
Semester
Winter

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Business Law 2275 Textbook Notes Chapter 1 Sophisticated Client A sophisticated client understands the role of the lawyer and the client. A sophisticated client also has an understanding of when to represent him/herself, when to hire a lawyer, and how to hire the lawyer. Also the client understands what actions can be taken with the dissatisfied conduct of their lawyer. Three major components are:  The law will protect you from people who try to take advantage of you.  The law is sophisticated  So, too, must you be. The Role of the The Role of the Lawyer is to present the client with legal advice relevant to the clients situation. While Lawyer lawyers are typically experts in there area of practice, and may be able to provide invaluable assistance to their clients, lawyers are simply providers of advice. They are hired by the client who provides them with instructions and the lawyer is bound to follow these instructions, provided they are lawful. An emphasis on one aspect of the client-lawyer relationship is that no advice is appropriate unless the lawyer has received all information. Solicitor-Client Refers to the duty of the lawyer to keep all information provided by the client confidential. It is thus Privilege fundamental to our legal system, as without it, the access to justice would be significantly reduced. Most lawyers will advise their clients about solicitor-client privilege and encourage their clients to disclose all relevant information. Solicitor-Client When to hire a lawyer: Relationship (small  The first thing the owner should do is consider how he will organize his business. i.e. Sole business) proprietor; will he have a partner? Will the business be operated as a franchise? A lawyer can provide information and advice that will help the owner make decisions appropriate for achieving his objectives.  If the owner is purchasing an existing business, the lawyer can provide advice and information that will enable the owner to minimize his potential risk and liability.  The lawyer can, of course, determine the relevant municipal, provincial and federal laws that are relevant to the business and provide advice required to ensure compliance with them. This could cover everything from obtaining a business license to complying with municipal noise bylaws, to satisfying provincial and federal environmental standards. When to represent yourself:  If you need to make a business decision, and you do not retain a lawyer, then you will either not be considering relevant legal information when you are making your decision or you will be obtaining it yourself. For small insignificant decisions it may be appropriate to avoid taking the time to find relevant legal information. However, in most cases it would be beneficial to proceeding only after completing some research of the relevant law. Anyone with computer access and access to the Internet can find legal information online. A sophisticated client will capitalize on this, she will use the sources provided to answer her current legal questions only hiring a lawyer if absolutely necessary.  Important to note not all-online information is true. Other distinguishing factors that determine when to or not hire a lawyer are the time and costs incurred if a lawyer is consulted for assistance or representation in making a particular business decision. Small claims court (limited to 25,000 in winnings). Anything greater than this is taken to a superior court and that’s when a lawyer should be retained. In a small claims court, a lawyer may be retained due to the complexity of the caste, but a sophisticated client will understand if the cost of one is worth it. If you break the law and harm someone else, there will likely be two different legal proceedings. First there will be a criminal prosecution in which you will be charged by the government (state) with committing a crime. If you are convicted, you will be punished and have a criminal record. The civil litigations may take place if a small claims court, where you will most likely represent yourself. If the litigation involves an amount of money greater than the monetary jurisdiction of small claims court you should then hire a lawyer to represent you, as the trial will take place in a superior court. Business Law 2275 Textbook Notes Legal aid You are eligible for legal aid if you have legal problems and you can’t afford a lawyer. Legal Services Society (LSS) may pay for legal problems involving criminal charges, mental health and prison issues, serious family problems, child protection matters, or immigration problems. To receive legal aid, a client must meet certain financial guidelines involving household income and assets. Furthermore, if you collect money as a result of the settlement or judgment, you will probably have to repay some or all of the benefits you received from legal aid. Duty council is court lawyers who assist individuals who are not represented by a lawyer. Duty council may be available in criminal courts, family and immigration courts. The assistance of a duty council is considered legal advice, not legal representation. In a duty court, duty council may provide advice to an accused about the charges he faces, the relevant court procedures, and his legal rights. How Lawyers bill There are three main ways lawyers will calculate there fee’s: their Clients  First, the lawyer may charge a fixed fee for the work required, regardless of the time involved. This is often used in specific tasks like creating a will, purchasing a house, or incorporating a business.  Secondly, the lawyer may bill the client for all of the time she spends on the activity; with the hourly rate depending on numbers of years the lawyer has been to practice.  Third, the lawyer may receive a percentage of the amount the client collects, either through a settlement or a court judgment. This contingency fee agreement usually happens when a client does not have enough funds to pay the lawyer at the beginning of the case. In addition to paying for the lawyer’s time, the client is also responsible for disbursements that are the out of pocket costs incurred by the lawyer on the clients behalf (filing documents, long distance phone charges, courier charges, fee charged by an expert for testifying, and photocopying costs). In most cases the lawyer will ask for a retainer (initial deposit into trust account) from the client before she commences work. How to Complain Fee Mediation Service – a neutral mediator who tries to facilitate a mutually acceptable about your Lawyer resolution of dispute. Court Officials – taxation officers and assessment officers have the power to decide that the lawyer’s bill is fair and does not need to be changed. Complaint Resolution Process – Complains are investigated and may need to be sought deeper in hearing. Ethics of Lawyer  Ethical behavior implies integrity, honesty and professionalism  Failure to observe ethical behavior may result in a fine Ethics of Clients  No code of conduct for business people Paralegals  Operate under the supervision of a lawyer  Authorized to represent clients in small claims court Chapter 2 What is Law Law has been defined in moral terms, where only good rules are considered law (natural law theorists). Others have defined law by looking at its source, stipulating that only the rules enacted by those with authority to do so qualify as law (legal positivists). And some have defined law in practical terms, suggesting that only those rules that the courts are willing to enforce are considered law (legal realists). A simplified definition of law is “Law is the body of rules made by government that can be enforced by the courts or by other government agencies”. While this definition as enforceable rules has practical value, it does not suggest what is moral. Just because someone is obeying the law doesn’t mean that they are acting ethically. Categories of Law Substantive Law – established not only the rights an individual has in society but on the limits of his or her conduct. Substantive law guarantees all the right to travel, to vote, and the right to own property. Procedural Law determines how the substantive laws will be enforced. The rules governing arrest, investigation and pre-trial and court processes in both criminal and civil cases Business Law 2275 Textbook Notes are examples. Law can also be distinguished by its private or public function. Public Law includes constitutional law that determines how the country is governed and the laws that affect an individual’s relationship with the government, including criminal law and regulations created by government agencies. Private Law involves the rules that govern our personal, social, and business relations that are enforced by one person sulting another in a private and civil action. Origins of Law Common Law Legal System adopted by all provinces in Canada and has developed over the last millennium initiating in England. Civil Law Legal System is used by and only by Quebec in Canada. It is based on the French civil code and originated from Europe, and is to used in many jurisdictions, outside of Canada. The terms Civil Court, Civil action, and Civil Law are all definitions used within the Common Law Legal System and should not be confused with the French “Civil Code” or Civil law as used in Quebec. Civil Law Legal Civil Law is a Code – a list on rules stated as broad principles of law that judges apply to the cases System that come before them. The code determines the principles to be applied. Common Law Legal The early Norman kings established a strong feudal system in English that centralized power in System their hands. As long as they remained strong, they maintained their power; but when weak kings were on the throne, power was surrendered to the nobles. The growth of the common law legal system was much affected by this ongoing struggle for power between kings and nobles and later kings and parliament. During times when power was decentralized the administration of justice fell to the local lords, barons, or sheriffs, who would court as part of their feudal responsibility. Their courts commonly resorted to such practices as trial by ordeal was done by a physical test. The assumption here was that God would intervene on behalf of the righteous party. Strong kings such as Henry II introduced travelling courts, which were very attractive in resolving disputes. As more people begin to use them their power base grew. The fairer the royal judges were, the more people they attracted. Eventually this turned into royal courts where there function was no to impose any et of laws, but to be as fair and impartial as possible. Stare Decisis Gradually a system of justice developed in which the judges were required to follow each other’s decisions. This process was then named stare decisis or “following precedent”. Another factor, which lead to the development of stare decisis, was the creation of the appeal courts. The most significant feature of our legal system today is that the decision of a judge at one level is binding on all judges in the court hierarchy in a court of lower rank, provided the facts in the two cases are similar. The Supreme court of Canada is the highest court in the land; its decisions are binding on all Canadian courts. The role stare decisis has in the common law legal system is that it allows parties to predict the outcome of the litigation and thus avoid going to court. However, a significant disadvantage of the following precedent is that a judge must follow another judge’s decision even though social attitudes may have changed. The system is anchored to the past, with only limited capacity to make corrections or to adapt and change to meet modern needs The judge’s job is to analyze the facts of the precedent cases and compare them with the case at hand. Since no two cases are ever exactly alike, the judge has some flexibility in deciding whether or not to apply a particular precedent. Judges try to avoid applying precedent decisions by finding essential differences between facts of the two cases if they feel the prior decision will create an injustice in the present case. This process is called Distinguishing the Facts of opposing precedents. Sources of Law Common Law: At an early stage in the development of common law, three great courts were created: the court of common pleas, the court of kings bench, and the exchequer courts, referred to all together as the common law courts. The rules developed in the courts we called “common law” because judges, at least in theory, did not create law but merely discovered it in the customs and traditions of the people to whom it was to be applied. However, the foundation of a complete legal system cannot Business Law 2275 Textbook Notes be crated on the local tradition and custom alone, so common law judges borrowed legal principles from many different sources. Roman Civil Law gave us our concepts of property and possessions. Canon or Church Law contributed law in relation to families and estates. Law Merchant contributed to law when trading between nations was performed by merchants who were members of guilds, which developed their own rules to deal with disputes between members. Equity: Because of rigidity of the process in common law, the inflexibility of the rules applied, and the limited scope of the remedies available, people often went to the king (instead) for satisfaction and relief. The burden of this process made it necessary for the king to delegate the responsibility of the chancellor, who, in turn, appointed several vice chancellors. This body eventually became known as the Court of Chancery, sometimes referred to as the Court of Equity. It dealt with matter that, for various reasons, could not be handled adequately or fairly by the common law courts. The court of Chancery did not hear appeals from the common law courts; rather it provided an alternative form. If people seeking relief knew that the common law courts could provide no remedy or that the remedy was inadequate, then they would go to the court of chancery instead. The court could decide a case on its own values. The system of law delivered by the court of Chancery became known as the Law of Equity. This flexibility was the courts most significant asset but also was its greatest drawback. Finally the two separate court systems were combined by the Judicature Act of 1873-1875. Although the two court systems merged, the bodies of law they created didn’t, and it is still best to think of common law and equity as two distinct bodies of rules. Rules of equity may have been developed on fairness and justice, but when a person today asks a judge to apply equity, they are not asking for fairness, they are asking for rules developed by the court of chancery. Statues Justice was not available in either the common law or chancery courts and another method was needed to correct these inadequacies. Parliament handled any major modification to the law. Parliamentary enactments are referred to as Statutes or legislation and take precedence over judge made law based on common law or equity. The government has several distinct functions. Legislative or Parliament creates law, the Judicial Branch is the court system, and the judiciary interprets legislation and makes case law. The Executive or Administrative branch are the agencies, which administer and implement the law. Law in Canada Confederation Confederation was accomplished when the British Parliament passed the British North American Act (BNA ACT), which is now referred to as the Constitution Act, 1867. The BNA Act’s primary significance is that it created the dominion of Canada, divided power between the legislative, executive, and judicial branches of government and determined the powers and functions of the federal, judicial, and provincial levels of government. Rule of Law recognizes that although Parliament is supreme and can create and law considered appropriate, citizens are protected from any uninformed actions of the government. Canada’s constitution is, in essence, the “rulebook” that government must follow. It is comprised of tree elements; 1. Statutes such as the constitution act and statutes creating various provinces, 2. Conventions, which are unwritten, rules dictation how the government is to operate and include the rule of law, and 3. Case law on constitution issues such as if the federal or provincial government has jurisdiction to create certain statutes. Constitution and Division of Powers Because of the Constitution Act, the 3 different governments all received different powers. The Federal Government has power over such matters as banking, currency, the postal service, criminal law (although its not enforcement), and the appointment of judges in the federal and higher level provincial courts. The federal government passes considerable legislation affecting such matters as the regulation of all import and export activities, taxation, environmental Business Law 2275 Textbook Notes concerns, money and banking transportation, patents, and trademarks. The provinces have jurisdictions over such matters as hospitals, education, administration of the courts, and commercial activities at the provincial level. Thus most business activities that are carried on within the province are governed by Provincial Legislation or Municipal Bylaws, including statutes dealing with the sale of goods, consumer protection, employment, workers, compensation, collective bargaining, secured transactions, incorporation, real estate, and licensing. When determining the constitutional validity of legislation, the courts often resolve the issue by looking to the “Pith and substance” of the challenged law. In other words, what is the main purpose of the law and does government, which enacted the law, have the constitutional jurisdiction to regular that concern. Intra Vires Parliament, meaning that it was within its power. Conflicting Powers On occasion one level of government passes legislation that may infringe on the powers of another. Such bylaws have been struck down as ultra vires (beyond one’s jurisdiction or power). One level of government cannot invade the area given to another by trying to make it look like the legislation is of a different kind. This would be referred to as colorable legislation. Federal and provincial governments can overlap, and when it does, the principal paramountcy may require that the federal legislation be operative and that provincial legislation go into abeyance and no longer apply. If the overlap is incidental, they may both be valid Legislation Legislation is introduced to the parliamentary process in the form of a bill, which goes through a sequence of introduction, debate, modification, and approval that is referred to as first, second, and third readings. When a bill is finally enacted it has the status of a statute. Such a statute does not have the status of law until it receives the approval of the Governor general at the federal level or the Lieutenant Governor in a province, a process referred to as receiving royal assent. Governor General and Lieutenant General are the queen’s representatives in Canada. Because a signature is required for a bill to pass, the government can use this requirement to delay the coming into effect of legislation. Protection of Rights Among these unwritten conventions are the practices of protecting and preserving fundamental and Freedoms rights and freedoms. Canada has, thus, inherited the British tradition of protecting human rights and individual freedoms through unwritten conventions (practices) as supported by common law. Canadian Bill of The basic human rights protections set out in ordinary statutes passed by the federal or provincial Rights governments may not protect people from abuses by government. Charter of Rights A constitutional guarantee of basic rights and freedoms. The effect of include the Charter in our and Freedoms constitution is twofold. First, neither the federal government nor the provinces have the power to modify or otherwise interfere with the basic rights set out in the charter except through constitutional amendment. Ordinary legislation will not override the charter simply because it is passed after the charter. Second, the burden of protecting those rights shifted from the politicians to the judges. Now, an individual who feels that his or her rights have been interfered with by legislation or other forms of government action can seek redress from the courts, relying on the provisions of the charter. The courts can even strike down statutes that infringe those rights. Limitations There are three important limitations on the entrenchment of these rights. First, Section 1 of the Charter of Rights and Freedoms allows “reasonable limits” on those rights and freedoms when limiting them can be “demonstrably justified in a free and democratic society.” This gives the courts the power to interpret the provisions of the Charter to avoid an unreasonable result. Therefore, the rights and freedoms set out in the charter are not absolute. A law that restricts Charter rights, though apparently justified, will be rejected if it goes to far. The second limitation is contained in section 33, and is referred to as the “nonwithstanding clause.” It allows each of the provinces and the federal government to override the basic rights in section 2 and sections 7 through 15 of the charter simply by stating that the new legislation operates “nonwithstanding” (regardless of) the charter. The sections included in these sections are Business Law 2275 Textbook Notes fundamental freedoms (such provisions as freedom of conscious and religion, of thought and belief, of opinion and expression, and of assembly and association), legal rights (the right to life, liberty, and security of person, security against unreasonable search and seizure, arbitrary imprisonment and detention), and equality rights (the right to not be discriminated on the basis of gender, age, religion, race, or color, and the guarantee of equality before the law). The nonwithstanding clause does not apply to the sections guaranteeing democratic rights (the right to vote, to elect members of Parliament, and legislative assemblies), mobility rights (the right to enter and leave Canada), or language rights (the right to use both official languages). In addition the rights of aboriginal people and the rights guaranteed to both genders cannot be overridden by the federal or provincial governments Charter Provisions A brief summary of the types of rights and freedoms Canadians now enjoy because of the charter of rights and freedoms are listed below. The charter sets out several rights that are available in some cases only to citizens of Canada and in some cases only to citizens of Canada and in order cases everyone in Canada. The extent of these rights and freedoms, their meaning, and the limitations on those rights are still being defined by court decisions. Fundamental Freedoms – Section 2 of the charter declares certain underlying fundamental freedoms available to everyone in Canada. These are freedom of conscience and religion, freedom of belief, opinion, and expression; and freedom of assembly and association. The charter protects the right to believe in whatever we wish, to express that belief, and to carry on activities associated with it free from interference. They may only be restricted when they interfere with the freedoms of others. Democratic Rights – Sections 3, 4, and 5 protect our rights to vote and to qualify to be elected to the House of Commons or the provincial legislative assemblies. Reasonable limitations can be put on the right to vote, restricting those who are to young and most likely, mentally incompetent. Mobility Rights – Section 6 of the charter ensure that Canadians can travel and live anywhere within the geographical limitations of Canada as well as enter and leave the country at will. It also ensues that all Canadians have the right to earn a livelihood in any part of Canada. Legal Rights – Intended to protect individuals from unreasonable interference from the government or its agents and to ensure that when there is interference, it is done in a way that is both procedurally fair and consistent with basic principles of fundamental justice. Section 7 states that we have the right to life, liberty, and the security of person and the right to not have these taken away, except in accordance with the principles of “fundamental justice”. The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. Sections 8 and 9 prohibit such activities as unreasonable search and seizure and arbitrary imprisonment. Subsequent sections provide for the right to be informed of the reason for an arrest, the right to retain counsel, the right to be tried within a reasonable time, the presumption of innocence, the right not to be tried for the same offence, and the right not to be subjected to any cruel or unusual punishment. The purpose is to protect people form abusive, arbitrary, or unequal application of police and prosecutional power. Equality Rights – The equality rights set out in section 15 of the charter prohibit discrimination in the application of the law on the basis of gender, age, religion, race, age, or national origin and ensure that all people in Canada have the same claim to the protection and benefits of the law. This means that the various provisions of the federal and provincial laws must be applied equally to all. Anytime a challenged is made on the bases of one of these categories, it can be challenged as unconstitutional. When a provision is intentionally introduced that has the effect of discriminating against one group of people, it may still be allowed if its purpose is incorrect an imbalance that has Business Law 2275 Textbook Notes occurred through discrimination in the past (hiring more women, because in the past you only hired men). Language Rights – the part of the charter headed “official languages of Canada” outlined in section 16-22 ensures that French and English have equal status and that the rights of minorities to use those languages is protected. Section 52 – The Constitution Act of 1892 makes other important changes to Canada’s Constitution. In addition to declaring that the constitution is the “Supreme Law of Canada” section 52 also sets out all the statutes that have constitutional status in an attached schedule. The Importance of The significance of the 1982 additions to the constitution cannot be over emphasized; The Charter Changes of rights and freedoms will continue to affect the development of Canadian law over the next century. Traditionally, Canadian courts adopted the position that their function was to apply the law, as it existed. If the law needed to be changed, it was left to parliament to do so. The constitution act of 1982 eliminated the requirement that any major change involving Canada’s constitution had to be made by an act of the Parliament of Great Britain. Because the original BNA act was an act of the British Parliament, any changes to it had to be made by that body. When the provinces and the federal government agreed on a formula for amending the constitution, the British Parliament passed the Canada Act, making Canada completely independent of Britain. Human Rights Human rights legislation was designed to stop discrimination against identifiable minority groups Legislation in specific areas, such as hotels and restaurants. Today’s Statutes are broader in scope, protecting individuals against human rights violations by the public at large in a variety of settings. The Canadian Human Rights Act (CHRA) applies to abuses in sectors regulated by federal legislation, such as the broadcast and telecommunication industries; similar provincial statutes apply only in areas controlled by provincial legislation. These acts prohibit discrimination relating to gender, religion, ethnic origin, race, age, disabilities, and various other prohibited grounds. The CHRA now specifically protects against discrimination on the grounds of sexual orientation and pardoned criminal conviction; not all-provincial legislation goes so far. Chapter 3 The Courts Procedural Law ensure that the hearing will be fair, that all litigants have equal access to the courts, and that parties have notice of an action against them and an opportunity to reply. Canadian Courts are open to the public. The principle is that justice might not only be done, but also seen to be done. When the information coming out at a trial may be prejudicial to the security of a nation, the courts may hold in-camera hearings, which are closed to the public. When children are involved, or in cases involving sexual assaults, the more common practice is to hold an open hearing and prohibit the publication of the names of the parties. The difference between civil actions and criminal actions are in civil actions two persons use the court as a referee to adjudicate a dispute, and the judge chooses between the two positions presented. The decision will be made in favor of the side advocating the more probable position. In such cases, deciding the matter is based on the balance of probabilities, which required the person making the claim to show the court sufficient proof so that there is greater than 50% likelihood that the events took place as claimed. When a criminal action has been committed the offense is against the state and the victims of the crime are witnesses at the trial. The government pursues the matter and prosecutes the accused through a Crown prosecutor. In a criminal prosecution, the judge must be convinced beyond a reasonable doubt of guilt of the accused. There is a much broader area of law that subjects people to imprisonment and fines but does not quality as criminal law. This involves regulatory offenses and includes such areas as environmental, fishing, and employment offenses as well as offenses created under provincial jurisdiction, including motor vehicle, securities, and hunting offenses. Business Law 2275 Textbook Notes The provincial and federal governments have authority to create enforcement provisions including fines and imprisonment for laws that have been enacted under the powers they have been given under the constitution act. Only the Federal Government has the ability to make criminal law. Trail Courts of the There are Four levels of courts in Canada, including the supreme court of Canada. At the lowest Provinces level are the Provincial Courts. These courts have a criminal jurisdiction over the less serious criminal matters that are assigned to magistrates and judges under the Criminal Code. Small Claims Court deals with civil matters that involve relatively small amounts of money, no more than $5000 - $25,000 depending on the province. Family Courts handle family matters; such as custody issues once the parents have separated. The relative provincial government pays the judges in provincial courts. The highest trial level court is generally referred to as the Supreme Court of a Province, and has an unlimited level of monetary jurisdiction in civil matters and deals with serious criminal matters. Some provinces have also retained specialized courts, referred to as surrogate, or probate courts, dealing with the administration of will and estates. Bankruptcy Courts deal with the legal aspects of bankruptcy and must comply with the procedural rules set out in the Bankruptcy and Insolvency Act. When both a judge and jury are present, the judge makes finding of law and the jury make finding of facts, and when the judge is operating alone, he simply operates in both fields of finding Law and Facts. Matters of Fact are those regarding details of an event. Other Inter-Provincial Courts:  Drug Treatment Courts – established in several large Canadian cities for the treatment of addicts, not incarceration.  Domestic Violence Courts – These courts deal with spousal, elder, and child abuse.  Unified Family Courts – Have jurisdiction over all legal issues related to the family and do not deal with any other type of cases.  Mental Health Courts – Specialized courts that focus on the treatment and rehabilitation of those who have committed a criminal act due to mental disorder. Sentencing Circles are found in many provinces and are primarily at the provincial court level for cases involving aboriginal offenders and victims. Courts of Appeal in Each provinces appellate court hears appeals from lower courts of that province. They must hear a the Provinces matter before it can go to the supreme court of Canada. In most cases, this is the court of last resort. When one of the parties is dissatisfied with the decision of a provincial trial court and an error in law or procedure is identified, the decision may be successfully appealed. As a general rule an appeal court will consider a case only when questions of law are in dispute, not questions of fact. The appeal court judges (usually 3) read the transcript of the trial, as well as the trial judges reasons for decisions. They then deal with the specific objections to the trial judges decision submitted by the appellants lawyers, hearing the arguments of both the appellant and the respondent. The federal government from a list of candidates supplied by the provinces appoints the judges who serve on provincial superior and appeal courts. Courts at the The Federal Court is a trial court it hears disputes that fall within the federal sphere of power, Federal Level such as those concerning copyrights and patent, federal boards and commissions, federal lands or money, and federal government contracts. The Federal Court of Appeal kept its previous name; it is an appellate court. It hears the appeals from the federal court. An appeal from the Federal Court of Appeal goes directly to the Supreme Court of Canada. This court is the highest court in the land, and has a strictly appellate function as far as private citizens are concerned. There are nine judges appointed by the government of Canada. The Process of Civil Limitation Periods to remove ongoing uncertainty or to ensure fairness when memories dim or Litigation witnesses become unavailable, court action must be brought within a relatively short time from the event giving rise for the complaint. This time will vary depending on the jurisdiction and the nature of the complaint involved. Business Law 2275 Textbook Notes Jurisdiction: The first step when suing someone is determining which court should hear the action. Generally the plaintiff or person bringing the action can choose a court in the area where the defendant resides or in the area where the matter complained about rose. A court has the choice to refuse a case if it figures another jurisdiction would be more appropriate. Once the province have been chosen the plaintiff must then choose the court in which to commence the litigation. In a civil action, this is either the provinces small claims court of its supreme court. The monetary jurisdiction of a small claims court varies from jurisdiction to jurisdiction. Although it is less expensive to bring case to small claims court, its disadvantage is the limit on how much money can be awarded. Pre-Trail Procedures Writ of summons – Traditional way to commence an action in a superior court was for the plaintiff to issue a write of summons. Where it is still in use, if the defendant decides to dispute the claim, he must promptly file an appearance with the court clerk. Statement of Claim – the second step (or first in some provinces) is for the statement of claim to be served on the defendant. The statement of claim sets out in detail the plaintiffs allegations. Statement of Defense – the defendant must then prepare a statement of defense, in which he provides the answers to the claims of the plaintiff stating areas of agreement, disputed claims, and contrary allegations. Counterclaim – This if filed when the defendant feels he is the actual victim. A counter claim requires a filing of a statement of defense from the plaintiff. Pleadings – documents that are used to start and defend a lawsuit constitute the pleadings. The purpose of the pleadings is not to argue or justify positions, rather, the parties are merely stating claims giving rise to the dispute and establishing the required elements of the legal action. Once the pleadings have closed, the parties have the right to apply a set date for trial and begin the process of discovery. Throughout the pre-trial process, the parties have the right to make applications to the court for direction regarding what details have to be disclosed, what questions have to be answered, and other matters that may arise. The process of discovery has 2 distinct parts:  Discovery of Documents - each party has the right to inspect any documents in the possession of the other party that may be used as evidence in the trial.  Examination for Discovery – The parties (with their lawyers) meet before a court reporter and are asked detailed questions relevant to the problem to be tried. The parties are required to answer these questions fully and truthfully. In some jurisdictions a pre-trial conference must be scheduled, this is a meeting of the parties, their lawyers, and the judge. Offer to Settle – Either party can make an official offer to settle; if it is accepted, that ends the matter. If it is refused and the judgment at the trial is different from the offer made, the costs awarded are adjusted to punish the parties for filing to act more reasonably. The plaintiff can make an offer to settle showing willingness to take less than originally claimed. The Trial –Because the burden of proof at trial rests with the plaintiff, the plaintiff’s cases and witnesses are presented first. The Plaintiffs Lawyer assists witnesses in their testimony by asking specific questions, but those questions are very restricted. When the plaintiff’s lawyer completes this direct examination of the witness, the defendant’s lawyer is given the opportunity to cross- examine the witness. In Cross-examination, the defense has more latitude in the type of questions asked and so is permitted to ask leading questions. When the opposing lawyer believes that the lawyer questioning the witness is abusing the process by asking prohibited questions, she can object to the question. Rules of Evidence are the rules governing the type of testimony that Business Law 2275 Textbook Notes can be obtained from witnesses and all other types of evidence. If something new arises from the cross-examination, the plaintiff’s lawyer re-examines the witnesses on those matter. When the plaintiff has completed presenting evidence, the lawyer for the defense will then present its case calling witnesses and presenting evidence that supports its side, and then the plaintiff cross- examines. Judgment – If a jury is involved, the judges will instruct the case on the matters of law. The jury then retires to consider the case and returns to announce the decision to the judge. When the judge is alone it is up to him to decide the using both fact and law.  Costs – winning party must pay her own legal expenses, however may obtain as a part of the judgment an Order for Costs, which means that the defendant will be required to compensate the successful plaintiff for at least a portion of her legal expenses. Party and Party costs are usually awarded to the victorious party in a civil action. These costs are determined using a predetermined scale and normally fall short of the actual fee’s charged.  Remedies – The most common remedy requested is monetary payment in the form of damages, which are designed to compensate the victim for any loss suffered. General Damages are based on estimates such as when the court awards compensation to a litigant for pain and suffering or for future lost wages. Special Damages, on the other hand are calculated to reimburse the litigants for expenses or costs incurred before the trial. Punitive or Exemplary Damages are intended not to compensate the victim but rather to punish the wrongdoer for outrageous or extreme behavior. In rare cases, remedies other than damages may be awarded. Accounting results in any profits derived from the defendants wrongful conduct is to be paid over to the victim. Injunction is the courts power to stopping wrongful conduct or correcting some continued wrong. Enforcement – Even when the litigation process is completed and judgment is obtained, there is no guarantee that the amount awarded will be paid. If the Judgment Debtor refuses to pay, the Judgment Creditor must take steps, to enforce the judgment. A dry judgment is when the judgment debtor cannot afford to pay and owns no assets. If the judgment debtor has prospects of owning future assets, the judgment does remain enforceable for several years and could be enforced in the future. Once judgment has been obtained, most provinces provide for a further learning, sometimes called an examination in aid of execution to determine the judgment debtors assets and income that can be seized or garnished to satisfy the judgment. The “necessities of life” are exempt from this seizure. Garnishment involves the interception of funds owed to the judgment debtor and the payment of those funds into court. A creditor may Garnish funds such as wages earned by the debtor but not yet paid to him, or the balance of the debtor’s bank account. Judicial Remedies before Judgment – Some Judicial remedies may be available to creditor even before judgment. These are extraordinary remedies that are not normally granted only when there is a risk that the debtor’s property will be removed from the jurisdiction or otherwise made unavailable to the creditor. Dealing with Government can be divided into three different functions: legislative, judicial, and executive. The Regulatory Bodies legislative branch in Canada consists of the federal parliament and its provincial counterparts. The judicial branch consists of courts at both the federal and provincial levels. The executive branch includes the Prime Minister, the Premiers of the provinces, the cabinet ministers, and all of the civil servants in the various government departments. Civil Servants assist people in their dealings with the government. They provide service functions such as security, education, health, and welfare; they administer departments such as customs and revenue and they manage government affairs generally. They also regulate such matters as human rights, the environment and employment. Government departments establish regulatory bodies or administrative tribunals such as labor relation’s boards, human right commissions, and workers compensation boards to implement and Business Law 2275 Textbook Notes enforce there polices. Administrative tribunals make decisions that impact businesses and individuals and have powers of enforcement that can be abused; the courts have some jurisdiction to supervise their actions. It is a review rather than an appeal of the decision. Procedural Fairness To determine our rights before such tribunals, there are several questions that must be addressed:  From where did the tribunal derive its authority?  Was the decision making process fair?  What resource is there if there has been a failure in jurisdiction or procedure? The authority of the decision maker: Decision makers cannot act arbitrarily. They must be able to point to some statutory authority that empowers them to make a decision. The statutes usually start out with a definition section, which must be used to interpret the terms used in a statute. Most jurisdictions provide a general interpretation statute to provide further guidance. If the statute goes beyond the power of the
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