Entire Textbook Notes.docx

49 Pages
Unlock Document

Western University
Management and Organizational Studies
Management and Organizational Studies 2275A/B
Susan Mc Grath

Chapter 2 - Introduction to the Legal System September-14-12 1:43 PM What is law? There is no wholly satisfactory definition of law. However, the following simplified definition is helpful. Law is the body of rules made by government that can be enforced by the courts or by other government agencies. Do not confuse law and morality: legal compliance and ethical behaviour are two different things. Categories of law The primary categories of law are substantive law and procedural laws. Substantive law establishes the rights and limits that an individual has in society. Procedural law determines how substantive law will be enforced. Law can also be distinguished by its private and public function Public law includes constitutional law that determines how the country is governed and the laws that affect an individual’s relationship with government, including criminal law and the regulations created by government agencies. Private law involves the rules that govern our personal, social, and business relations, which are enforced by one person suing another in a private or civil action. Origins of law Quebec has adopted the civil law legal system whereas all the other provinces are using the common law legal system. Civil law legal system Civil Code is used throughout the world; it is the central Code, a list of rules stated as broad principles of law that judges apply to the cases that come before them. It includes people’s legal rights or obligations. Civil Code system – the Civil Code ultimately determines the principle to be applied in a case, prior decisions do not constitute binding precedents in a civil law jurisdiction. Civil Code provides predictability In the Civil Code system, precedents can be ignored – a new law is in effect, passed precedents will no longer be applicable. Consistency is reduced where preceding court decisions can be ignored. Common law legal system Common law grew from struggle for power. Relations between the existing English and French kingdoms were frequently strained. This strain might the reason England maintained its unique common law system of justice rather than adopting the more widely accepted Roman civil law. Common law principles came from the common people – their traditions and customs. Stare Decisis It is the process of “following precedent”. Judges follow decisions – if made within that court’s hierarchy. The decision of a judge at one level is binding on all judges in the court hierarchy who function in a court of lower rank, provided the facts in the two cases are similar. (Stare Decisis) The role stare decisis plays in the English common law legal system is similar to the role the Civil Code plays in the French system. It allows the parties to predict the outcome of the litigation and thus avoid going to court. Predictability Flexibility – a judge can choose not to apply precedent decisions by finding essential differences between the facts of the two cases. Distinguishing the facts Sources of law Common law – traditions and customs are the major sources of common law Common law, in theory, was not created but merely discovered in the customs and traditions of the people to whom it was to be applied. Common law borrowed legal principles from many different sources: Roman civil law – concepts of property and possessions Canon law – law in relation to families and estates Law merchant – law relating to negotiable instruments, such as cheques and promissory notes Equity Common law had serious limitations. The inflexibility and lack of remedies, therefore the Court of Chancery (Court of Equity) is created to try to resolve this problem. Court of Equity ignored the rules of precedence, resulting in the law of equity, deciding a case on its merits. There was no uniformity within the system, every decision looked arbitrary. Although the two court system merged, but the bodies of law they created did not. Equity does not simply mean fairness, they are rules developed by the court of chancery. Equity is a supplement to the common law. Statues Parliamentary enactments are referred to as statues or legislation; it overrides judge-made law. Government functions 1. Legislative - Parliament legislate the law. 2. Judicial – The court system makes judicial decisions and interprets legislation & makes case laws 3. Administrative – this is the executive branch for which it implements the laws Law in Canada Confederation Every jurisdiction except Quebec adopted the English common law legal system. The British North America Act (Constitution Act) created Canada and divided powers. Rule of Law – although the parliament is supreme and can create any law considered appropriate, citizens are protected from the arbitrary actions of the government. All actions of government must be authorized by a valid legislation. There is more to Canadian Constitution than BNAACT and Charter: Constitution Act 1867, Statue of Westminster 1931, Constitution Act 1982, Charter of Rights and Freedoms, Constitution Act 1999 Canada's Constitution is, the “rulebook” that government must follow. It is comprised of the following three elements: 1. Statues, such as the Constitution Act 1. Conventions, unwritten rules dictating how the government is to operate and include the rule of law 1. Case law on Constitution issues, such as whether the federal or provincial government has jurisdiction to create certain statues Constitution and Division of Powers Although the Parliament is supreme, Constitution Act and Charter of Rights and Freedoms place some limitation to federal and provincial governments. Constitution Act 1867 divide powers between federal and provincial governments Federal powers set out in sec. 91 Provincial powers set out in sec. 92 Division of Powers Federal – Section 91 Provincial – Section 92 Trade and commerce Municipal institutions Employment insurance Hospitals Raising monies by any mode of Direct taxation within the province taxation Administration of justice within the province Criminal law Property and civil rights Banking, currency, postal service Generally, matters of a local or private nature Residual power under the POGG clause When determining the constitutional validity of legislation, courts examine the essence of laws – what is the main purpose of the law and does the government which enacted the law have the constitutional jurisdiction to regulate that concern. Laws upheld if interference with another jurisdiction’s ;ower is incidental – Intra vires Conflicting Powers Validity of statue determined by its true nature E.g. Municipal governments have tried to control prostitution or pornography, using their zoning or licensing power, when in fact these matters are controlled by criminal law, a federal area. Such bylaws have been struck down as ultra vires, (beyond one’s jurisdiction or power) The principle of paramountcy require that the federal legislation to be operative and that the provincial legislation go into abeyance and no longer apply when the powers of the federal and provincial governments overlap. An individual must obey both by adhering to the higher standard, whether provincial or deferral. It is only when the laws are such that only one can be obeyed that a true conflict exists, and then the federal provision will prevail. Delegation of Powers, Direct delegation of power is prohibited however, indirect delegation is permitted. E.g. Federal government can delegate its power to an inferior body so can provincial governments. (i.e. federal boards, provincial boards) Agreements of Share Powers 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 enact, is has a status of statute. Statue needs to receive the approval of the Governor General in the federal level or the Lieutenant—Governor in a province, this process is referred to as receiving royal assent. Federal and provincial statues complied and published, regulations are also published, judges interpret and apply statutes, decisions then create precedents. Protection of Rights and Freedoms Because Canada adopted the common law legal system,Rights and freedoms were historically protected by convention. However, since WWII, issue arises. Canadian Bill of Rights Because it is not entrenched in the Constitution, Bill of Rights is another statue, although it is the first attempt at limiting the feral government's power to pass legislation that violates basic human rights. Charter of Rights and Freedoms Since the Charter is within the Constitution, neither federal government nor provinces have the power to modify or interfere with the basic rights set out in the Charter. (Except through constitutional amendment) The Constitution includes the Charter, for which they are both the supreme law of Canada, courts are empowered to strike down offending statues, Limitations (1) Limitation: 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" Government can interfere with basic rights and freedoms if it is reasonable to do so (2) Limitation Section 33 "Notwithstanding Clause" can override sections of fundamental freedoms (freedom of thought, belief, and opinion), legal rights(right of life, liberty, security and unreasonable imprisonment) , and equality rights(the right not to be discriminated) simply by stating that the new legislation operates "notwithstanding" the Charter. Sunset clause: this ensures that if the notwithstanding clause is invoked, the statute must be re-enacted by that legislative body every five years. This forces a re-examination of the decision to override the Charter. (3) Limitation Section 32(1) The third limitation is the restriction of the operation of the Charter to government and government-related activities. The Charter applies only to matters falling within the authority of "the Parliament and government of Canada" and the territories Where does the government stop, when does the government start acting in a private capacity? When government agencies act in their private capacity, they must in turn comply with the provisions of the Charter. If a section of a statue is in conflict with the provisions of the Charter, the offending section will be void, or an appropriate section will be added. Charter applies to private institutions acting as arms of government. It is important to remember that the provisions of the Charter apply not only to the regulations and enactments of these government bodies but also to the conduct of government officials employed by them. If they acting in a way that violates the provisions of the Charter, either they are not acting within their authority or the statue authorizing their conduct is itself in violation of the Charter. In either case, such offending conduct can be challenged under the Charter. Charter Provisions 1. Fundamental Freedoms (Section 2) Everyone in Canada has right to freedom of conscience and religion; of thought, belief and opinion; of the press; of peaceful assembly; of association However, when the expression of those freedoms or the activities associated with them interferes with the freedoms of others, the courts may restrict those freedoms by applying section 1 of the Charter. Freedom of expression, includes freedom of press, it builds the democratic nature of Canada However, limitations such as the laws of defamation and obscenity may apply. Collective bargaining is the most significant collective activity through which freedom of association is expressed in the labor context. Laws that restrict collective bargaining rights are thus subject to Charter scrutiny. 1. Democratic Rights (Section 3,4 and 5) The 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 (i.e. underage, mentally incompetent, etc.) Section 4 ensures that there will be an election at least every five years, except in the times of war, section 5 requires that the elected body be called into session at least once every 12 months. 1. Mobility Rights (Section 6) This section ensures that Canadians can travel and live anywhere within the geographic limitations of Canada as well as enter and leave the country at will. 1. Legal Rights (Section 7, 8 and 9) Section 7: 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. The right to life, liberty, and the security of person and the right not to have these rights taken away, except in accordance with the "principles of fundamental justice." Everyone has a right to life, liberty, and security of person - everyone is entitled to procedural fairness. Section 8 and 9: Ensures everyone to be secure from unreasonable search and seizure and arbitrary imprisonment The court can exclude evidence obtained in violation of these where not to do so "would bring the administration of justice into disrepute" 1. Equality Rights Section 15 This section prohibits discrimination in the application of the law on the basis of gender, religion, race, age, or national origin and sure that all people in Canada have the same claim to the protection and benefits of the law. Every person is to be equal before and under the law. Anytime a distinction is made in any provincial or federal law or by a government official on the basis of one of these categories, it can be challenged as unconstitutional. Even though a category may not be listed, there is a general prohibition against such discrimination, the courts tend to interpret the Constitution and its provisions broadly. Discrimination may be allowed if its purpose is to correct an imbalance. Section 28 guarantees that the provisions of the Charter apply equally to males and females. Section 15 can be overridden by a notwithstanding clause, however, section 28 cannot. Section 35 states that the Charter in no way affects the aboriginal and treaty rights of the native people of Canada. Even though this may seem to preserve inequality rather than eliminating it. The purpose of this provision is protect the special-status that the natives groups obtained through the land claim disputes. 1. Language Rights (16-22) Ensures that French and English have equal status and that the rights of minorities to use those languages are protected. Section 16 of the Charter declares that English and French are the official languages of Canada (federally) French and English have equal status - Canada and New Brunswick. Only province in the federation that is constitutionally bilingual Section 23 guarantees the citizens of Canada can receive their primary education in English or French. 1. Section 52 Important amendments are made: Section 92A, this section expands the power of the provinces to make law with respect to non-renewable natural resources, including the generation of electric power and forestry resources. Due to the broad and generalized nature of the Charter, the court has been forced to play a more active role in interpreting the broad statements and filling in the gaps and thus making new laws. The Constitution Act 1982 also eliminated the requirement that nay major change involving Canada's Constitution had to be made by an act of the Parliament of Great Britain. Quebec did not agree with patriating the Constitution Human Rights Legislation The Canadian Bill of Rights and the Charter address protecting individuals' rights from abuses by government, and from abuse by other members of the public. Complaints coming from a federally regulated institution goes to The Canadian Human Rights Commission (CHRC) Whereas, from a provincially regulated institution, it goes to The Provincial Human Rights Commission These statues aim to ensure that individuals will have access to employment, access to facilities and services customarily available to the public, accommodation, without the barriers created through discrimination. Human rights commissions: Both the federal and the provincial governments have set up special human rights tribunals authorized to hear complaints of human rights violations, to investigate, and where appropriate, to impose significant sanctions and remedies. Though, a complaint before the CHRC must be filed within 12 months of the alleged incident. Then Commission will attempt settlement through conciliation and investigation, if not, a panel hearing is convened. • Discrimination by private facilities is not prohibited by the legislation. • On the other hand, the field of employment is impacted significantly by human rights legislation. (i.e. religious belief worship day day-off, accommodation to the disabled, protection again sexual harassment etc.) Summaries A workable definition Law is the body of rules made by government that can be enforced by courts or government agencies Categories of law Substantive law governs behavior Procedural law regulates enforcement processes Public law comprises constitutional, criminal, and administrative laws, Private law involves one person's suing another Origins of law Codes in civil law jurisdictions Judge-made laws and precedents in common law jurisdictions Sources of Canadian law Common law Equity from chancery courts Statutes - legislation of federal and provincial governments Constitution of Canada Constitution Act 1867 (BNAAct) Constitution Act 1982, including the Charter of Rights and Freedoms Various other statutes Various statutes that have Constitutional status Conventions and traditions Case law on constitutional issues Constitution Act 1867 Created the Dominion of Canada and established its structures Divides power between federal and provincial governments Legislative powers are set out in sections 91 and 92 Courts interpret and rule on constitutional issues Charter of Rights and Freedom All legislation must be compliant with the Charter Applies to relationships with government Limited by sections 1, 32 and 33 Human rights legislation Federal - provides protection against discrimination by businesses that fall under federal jurisdiction Provincial - protects individuals in private relationships; addresses discriminatory practices by parties under provincial regulation Chapter 3 The Resolution of Disputes - The Courts and Alternatives to Litigation September-18-12 11:37 AM Chapter Objectives 1. Describe the court system in Canada 2. Outline the process of civil litigation 3. Explain the nature and function of regulatory bodies 4. Identify the restrictions on the decision-making power of such bodies 5. Explain the power of the courts to review the decisions of these bodies 6. Describe the alternative dispute resolution (ADR) methods - negotiations, mediation, arbitration 7. Identify the advantages and disadvantages of ADR The Courts As a general rule, Canadian courts are open to the public. However, there are important exceptions - when children are involved, or in cases involving sexual assaults, the more common practice is to hold an open hearing but prohibit the publication of the names of the parties. The courts in Canada functions in both criminal prosecutions and civil disputes. Balance of probabilities - Civil and criminals actions are different. In civil actions, the court act as an referee to adjudicate a dispute, the claim needs to show that there is greater than 50 percent likelihood that the events took place as claimed. Beyond reasonable doubt - In criminal prosecutions, a judge must be convinced beyond a reasonable doubt of the guilt of the accused. This is a much more stringent test that, even when it is likely or probably that the accused committed the crime, the accused must be found not guilty if there is any reasonable doubt of guilt. However, It is possible for a person face both criminal and civil trial at the same time. Criminal law is restricted to the matters found in the Criminal Code. However, there is a broader area of law that subjects people to fines and imprisonment but does not qualify as criminal law - environmental, fishing, and employment offences (regulator offences) Trial Courts of the Provinces The nature and structure are different between provinces. However, there is essentially four levels: (1) Supreme Court of Canada, (2) Provincial Court of Appeal (3) Provincial Superior Courts (4) Provincial Courts • Small claims courts and family courts It is before the trail courts that the disputing parties in a civil case first appear and testify, the witnesses give evidence, the lawyers present arguments, and judges make decisions. Judge & Jury A judge makes findings of the law, and a jury makes findings of the facts When only a judge is present, he/she makes both matters of laws and facts. Recent Developments Canada's system of courts is dynamic; it is constantly changing o reflect changes in Canadian society. Court reforms dictate change. • Drug treatment courts have been established. These courts emphasize on the treatment of addicts, not incarceration. Drug treatment has been proven more effective than incarceration. • Domestic violence courts have been established. • These courts deal with spousal, elder, and child abuse. • It officers specialized investigations by police, counseling services, prosecution of repeat offenders and support service for victims • Unified family courts It has jurisdiction over all legal issues related to the family and do not deal with any other types of cases • Mental health courts (those guilt because of mental disorders, ) • Focus on treatment and rehabilitation • Sentencing circles • For cases involving aboriginal offenders and victims • Specialized courts dedicated to Aboriginals are established. Courts of Appeal of the Provinces This is the court of last resort for most cases. It will only consider a case when questions of law are in dispute, not questions of fact. It does not hold a new trail, the assumption is that the judge who saw and heard all of the evidence presented are best qualified to determine questions of fact. Courts at the Federal Level The Federal Court and Federal Court of Appeal serve a function similar to that of the provincial superior courts. It hears disputes that fall within the federal sphere of power. (such as those concerning copyrights and patents, federal boards and commissions, federal lands or money, and federal government contracts. The Tax Court of Canada is a specialized court that deals with disputes concerning federal tax matters. Enforcing the following taxation statutes, Income Tax Act The Employment Insurance Act Old Age Security Act Courts Administration Service Act The Supreme Court of Canada It is the highest court in the land. It has a strictly appellate function as far as private citizens are concerned. Supreme Court decisions set binding precedents for all other courts in Canada The Process of Civil Litigation Before a decision is made to sue someone, all avenues for settling the dispute outside of litigation ought to be exhausted. Alternative methods include: negotiation, mediation, and arbitration. Before a trial procedure is instigated, all of the above dispute-resolution mechanisms should have been used. The discussion below is based on the procedure followed in British Columbia, since there are some variations from province to province. Limitation Periods limitation period • Court action must be brought within a relatively short time from the event giving rise to the complaint • Failure to commence an action by filing the appropriate pleading, will result in the plaintiff being barred from pursuing the action. Jurisdiction Generally, the plaintiff choose a court in the area where the defendant resides or in the area where the matter arose. Once province has been chose, the plaintiff must then choose the court in which to commence the litigation. In a civil action, this is either the province's small claims court or superior court. Small claims court is simple but only minimal costs are recovered. Pre-trial Procedures The traditional way to commence an action in a superior court was for the plaintiff to issue a writ of summons. If the defendant chooses to dispute the claim, he must promptly file an appearance with the court clerk. A statement of claim is to be served on the defendant (it sets out in detail the plaintiff's allegations) A statement of defense, it provides answers to the claims of the plaintiff stating areas of agreement, disputed claims, and contrary allegations must be filed by the defendant. The documents used to start and defend a lawsuit constitute the pleadings. Once pleadings have been closed, parties often set a date for trial and begin the process of discovery. 1. Discovery of documents Each party has the right to inspect any document in the possession of the other party that may be used as evidence in the trial. 1. Examination for discovery The parties meet before a court reporter and, under oath, are asked detailed questions relevant to the problem to be tried. (Parties are required to answer fully and truthfully) A pre-trial conference must be scheduled (both parties, lawyers and judges) It is held to determine which issues remain to be tried and whether the parties can themselves resolve the dispute. Either parties can make an official offer to settle to end the matter. Recent Initiatives Provinces have implemented reforms to speed up the litigation proces, especially when smaller amounts are involved. The Trial The burden of proof at trial rests with the plaintiff, the plaintiff's case and witnesses are presented first. The types of questions that may be asked by the plaintiff's lawyer maybe very limited. (e.g. no leading questions,) Direct examination Cross-examination • The defense has more latitude in the type of questions asked. • The rules governing the type of testimony that can be obtained from witnesses are referred to as rules of evidence. When the plaintiff is finished, the defense presents its case. Judgment If a jury is involved, the judge will instruct it on matters of law The jury will then consider and make its decision. The function of a jury is to decide the matters of fact. Costs In small claims court, the winning party normally will not recover the costs of obtaining the services of a lawyer from the losing party. In higher-level courts, a judge has the discretion to award cost. Party and party costs are usually awarded to the victorious party in a civil action. Losing party usually pays costs, & legal expenses usually not completely recovered Remedies The most common remedy is monetary payment in the form of damages. It is 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 are calculated to reimburse the litigant 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 behavior. Other remedies include, Accounting - any profits derived from the defendant's wrongful conduct to be paid over to the victim. Injunction - stops the wrongful conduct or correcting some continuing wrong. Specific performance - compel proper performance of a legal obligation by specific performance Declaration - A declaration made as to the law and the legal rights of the parties Enforcement If the judgment debtor refused to pay, steps must be taken by the plaintiff, now the judgment creditor, to enforce the judgment. A dry judgment - the judgment debtor cannot pay and owns no assets. Then the judgment creditor gets nothing and also has to pay its own legal expenses. *A judgment does not ensure payment. Enforcing Judgment: When judgment has been obtained, a further hearing is provided, sometimes called the examination in aid of execution, to determine the judgment debtor's asset and income that can be seized or garnished to satisfy the judgment. Seizure of Property • The execution process allows for the seizure and eventual sale of the debtor's property to satisfy the judgment. The proceeds are distributed first to secured creditors, then to preferred creditors, and finally on a pro rata (proportionate) basis, to the remaining unsecured creditors. • Proceeds of sale are shared by all creditors. • Secured creditors, they used the property in question as security for a loan. • Preferred creditors are those who, by legislation must be paid before other unsecured creditors. (e.g. landlords, employees, and etc.) • Not all property is subject to seizure. "Necessities of life" are exempt fro seizure. (e.g. food, clothing, household furnishings and etc.) • Garnishment involves the interception of funds owed to the judgment debtor and the payment of those funds into court. Judicial Remedies Before Judgment Due to the risk of properties or assets being removed or sold from the defendant, the court may sometimes grant an interim order to ensure that the goods will be available to satisfy a judgment if one is ultimately guilty. (It prevents the debtor to dissipate or abscond with them) Dealing with Regulatory Bodies Government can be divided into three different functions: (1) Legislative (2) Judicial (3) Executive 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. (The theoretical head of the executive branch is the Queen) Government objectives are achieved through rule enforcement, economic incentives, and education Government departments establish regulatory bodies, or administrative tribunals, such as labor relations boards, human rights commission, and workers' compensation boards to implement and enforce their policies. A administrative tribunal generally has more discretion than a judge. As long as the administrative decision maker acted within the authority granted, and any discretion was exercised in a fair and honest way so that the decision can be said to be reasonable, the decision will stand. Procedural Fairness in Tribunals To determine our rights before such tribunals, there are several questions that must be addressed: 1. From where did the tribunal derive its authority 2. Was the decision-making process fair 3. What recourse is there if there has been a failure in jurisdiction or procedure (1) The authority of the decision maker • Authority is granted by a statute or by a regulation created pursuant to that statute. • Rules of statutory interpretation • Most jurisdictions provide a general interpretation statute to provide further guidance. • Statutes must be passed by appropriate level of government • Statutes and regulations must comply with the Charter (2) The fairness of the process • The minimum standards of procedural fairness, (rules of natural justice) set a basic standard. • Fair hearing: the person affected by the decision must be notified hat a decision was going to be made and he must be given an opportunity to respond. (Notice must be given and all information must be disclosed) • Decisions to be made by the persons hearing the evidence • The decision makers must be impartial ( 公公公). Any indication of bias will normally be sufficient grounds to have he decision overturned. (3) Reviewing a decision For the courts to exercise their right of judicial review, one of the following must be present 1. When the validity of the statute or regulation is in question (invalid statue or regulation) 2. When the decision maker has acted outside his authority 3. When an error of law on the record has been made 4. When the decision-making process itself has failed to follow the requirements of procedural fairness (the rules of natural justice) 5. When there has been an abuse of power Methods of Judicial Review Obtaining a prerogative write from the court: Certiorari An order declaring that the decision made by the tribunal is void and of no effect Prohibition A writ of prohibition is given before a hearing to the tribunal, ordering it not to proceed. Mandamus An order of mandamus is given to a tribunal that is stalling, ordering it to get on with it and make a decision. In addition, the court always have the right to make a declaratory judgment. Private clauses, designed to stop the courts from reviewing the board's decision. Challenging administrative decisions may be futile and costly Alternatives to Court Action What is Alternative Dispute Resolution 1. Negotiation When the decision making is left in the hands of the disputing parties to work out for themselves 1. Mediation When a neutral third party assists the parties in coming to a resolution on their own 1. Arbitration When a third party makes a binding decision in the matter under dispute The arbitrator is chosen from a pool of trained and certified professionals, often with expertise in the subject matter of the dispute. (Procedure must be fair) Chapter 2&3 Lecture September-18-12 5:29 PM The Legal System and Resolution of Disputes What is law? Different perspectives in defining what a law is. Natural law Abstract code of conduct, it pre-exists. All born with this inherent right to be treated right. Positivist Laws are created by those who has authority. Legal realist Not only a law needs to be passed. A court also has to be willing to enforce that law. Law and morality Law and morality is different. Working definition of law: Law is the body of rules made by government that can be enforced by the courts or by other government agencies. (i.e. Rules the state will enforce) Categories of Law Substantive What you get the rights and limits that an individual has in society Procedural How you get it determines how substantive law will be enforced. Public Constitutional, criminal, administrative Private Tort, contract, property, wills, and estates (Normally one needs to hire a lawyer to pursue actions) Two main legal systems: Common Law (English) Used in commonwealth countries, and all provinces except Quebec • Governmental statutes • Precedents Civil Law (Roman/French) Used in Quebec and most countries in South America, Africa, and continental Europe • Civil Code Civil System - codified (Quebec) Emperor Justinian had Roman Law codified in Roman times, modified by Napoleon. Common Law - Judge-made law, precedents are important Stare decisis: the decision of a judge at one level is binding on all judges in the court hierarchy who function in a court of law rank, provided the facts in the two cases are similar. • Provinces to province are different, however, it is not binding to the same level R V. Clough (pg. 27) • Decision of judge at one level only apply to courts of a lower rank. • Decision in a different jurisdiction would be persuasive, not binding. • Persuasive versus Binding • Distinguishing the facts Sources of law Common law (Complete) • Law wasn't created, rather, it was discovered in the common customs and traditions of local communities • Borrowed from  Roman civil law  Canon (Church) law  Law merchant • Historically extremely rigid. The law was too restrictive. • People went straight to the King, therefore the Court of Chancery is then created Equity - Court of Equity(own separate body of law) • Supplement to common law • What is really fair? Intuitively, what is the right thing to do • Not applying the law, therefore, they apply equitable rights (what is really equitable) • Two amalgamated because the two • Equitable remedies Statues • Parliament became supreme, and their enactments known as statutes Three branches of the government • Judicial • Executive (Administrative) Any agencies created by the government, tribunals, any administrative bodies 1. Legislative (Parliament) Enacts the law Regulations Legislation, through enabling statues, create bodies and delegates power to them to create regulation Regulation = subordinate legislation e.g. Ontario Disability Support Program The Act sets out what it means to be a disabled person The regulations will say when you are eligible, how the money will be sent out and etc. Law in Canada Statues: • Dominion of Canada created in 1867, through the British North American Act (BNAAct) • Preamble "similar in principle to UK" Unwritten conventions: Rule of Law Case law BNAAct 1867- Division of Powers Federal: banking, shipping, navigation, criminal law, and POGG (Peace, Oder, and Good Governance) - residual power, Provincial: Property and Civil rights What jurisdiction are matters of pollution under? Federal or Provincial governments? Ultra vires vs intra vires Ultra vires to their jurisdiction - meaning the government does not have jurisdiction over such matters Pith and substance Doesn't matter what the law disguises itself to be, the jurisdiction depends on the nature of the law. Constitution Act 1982 Gave Canada power to amend its constitution (i.e. ending ties with England) Lists government enactments having constitutional status Establishes amending formula for constitutional change Charter of Rights and Freedom: limits supremacy of Parliament Laws are passed by both provincial and federal powers Conflicts of Laws Paramountcy • The principle of paramountcy require that the federal legislation to be operative and that the provincial legislation go into abeyance and no longer apply when the powers of the federal and provincial governments overlap. • The federal government wins if there is a conflict. Delegation of Power Federal and Prov Gov't can delegate power to federal/prov' boards Giving authority Agreements to share power Passages of Bills Bill Vote Pass - Law Need Stamp of Approval - Governor General/ Lieutenant General Protection of Rights and Freedoms Charter of Rights and Freedoms • Constitution Act 1982 • Supreme Law • Entrenched in the Constitution • Applies to government action only • S.33 notwithstanding clause • S.1: reasonable limits clause • S.24: remedies s. 2 fundamental freedoms s. 3, 4, 5: democratic rights s. 6: mobility rights s. 7, 8 and 9: legal rights s. 15: equality rights (and affirmative action) s. 16-22: language rights S1. Reasonable limits clause Limitations S2. Fundamental freedoms S7 Legal rights (life, liberty and security of person) S15 Equality rights (affirmative action is okay) Section 15(b) Everyone has the right to be treated equally S33. Notwithstanding Clause Resolution of Disputes The Courts Criminal and Civil • Standard of Proof • One can be liable in both courts • Civil Court - Balance of Probabilities Is it more like than not, that the plaintiff is entitled to damages More than 50% of likely • Criminal Court Beyond unreasonable doubt Superior Courts have inherent jurisdiction Trial and appellate Federal Provincial Specialized Courts Open to Public Regulatory offences Court Hierarchy Supreme Court of Canada Provincial Court of Appeal Provincial Superior Court Provincial Administrative Tribunals Provincial Courts Courts of Appeal deal with questions of law, not fact. Civil Litigation Jurisdiction Geographic Monetary Court Limitation Periods Pre-Trial Procedures Pleadings Discovery Pre trial conference Offers to settle Trial Plaintiff has the burden of proof Examination in chief Cross examination Follow rules of evidence Judgment Costs Damages Pecuniary damages: Economic Loss Non-pecuniary damages: Non-economic loss General damages: non-pecuniary damages + future pecuniary losses Special Damages: pre-trial pecuniary losses Punitive/exemplary/aggravated Nominal Enforcement judgment debtor/judgment creditor examination in aid of execution Seizure of property garnishment Regulatory Bodies Administrative tribunals Usually have specific expense Quicker, more flexible, cheaper Procedural Fairness: Authority of decision maker - the authority has to be authorized by some sort of law Fairness of the process Rules of Natural Justice Bias Principles of Fundamental Justice The following concepts hasn't talked about: Judicial Review Alternative Dispute Resolution Chapter 4 - Intentional Torts and Torts Impacting Business September-21-12 11:47 AM The Nature of Torts Definition: Tort is committed when one person causes injury to another, harming his or her person, property, or reputation. The right to sue for redress arises when then injurious conduct falls below a minimum social standard. In others, a tort is a social or civil wrong that gives rise to the right to sue and to seek one of several remedies. The role of tort law is to compensate victims and deter wrongful conduct. (Requiring the party at fault to bear the burden of loss suffered) Crimes must be distinguished from torts. Harmful conduct that is so serious that it poses a threat to society generally is said to be criminal in nature. It is much easier to win a tort law sue than a crime because the standard of proof is based on "balance of probabilities" rather than "beyond a reasonable doubt" A criminal court's goal is to punish the wrongdoer, not to compensate the victim, because the conduct poses a threat the general society. Whereas tort is considered a private matter where the victim of the injurious conduct sues the person responsible for remedy. (Crimes are wrongs that affect society as a whole) A tort must also be distinguished from a breach of contract. An act that breaches a contract may not be inherently wrong, but the contractual relationship makes the violation of its terms unacceptable. A tort is inherentl
More Less

Related notes for Management and Organizational Studies 2275A/B

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.