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Western University
Management and Organizational Studies
Management and Organizational Studies 2275A/B
Terry Biggs

MOS 2275 Notes: Test 1 Chapter 1: Managing Your Legal Affairs Becoming a Sophisticated Client  Sophisticated clients: 1) Are confident (not in awe of lawyers, have proper documentation, etc.) 2) Are knowledgeable (able to identify, not necessarily solve legal issues) 3) Are up-to-date 4) Understands the role of client and agent 5) Knows when to represent themselves 6) Knows how to locate and hire a suitable lawyer 7) Understands the costs associated 8) Knows how to deal with dissatisfactory lawyer  Becoming a sophisticated client is empowering – but business decisions can have serious consequences, so make sure to: 1) Consider appropriate laws 2) Keep proper records (e.g. written contracts), because evidence is important The Role of the Lawyer  In a legal relationship, you have: the lawyer (an agent), the client (the principle) and a potential 3 party (which interacts with the client) o The agent acts in the client’s best interest and must follow their instructions (provided they are lawful) – they are only in an advisory capacity o Solicitor-client privilege: duty of the lawyer to keep their client’s information confidential, so the client can be represented to the lawyer’s full potential  When to hire a lawyer: when you require legal advice, not information o Making major business or personal decision that can expose you to major legal risk o Criminal charges or a civil claim that goes above the small claims court o Compliance (ignorance is no excuse), contracts, etc. How to Find the Right Lawyer  Use sources such as: relevant referrals, provincial law society, yellow pages and the internet o Meet with each appropriate lawyer to see if a working relationship can be established o Keep an ongoing relationship (especially important for businesses)  Paralegals: are employees of law firms that operate under the supervision of a lawyer, no J.D. o Licensed by the Law Society and can sometimes represent clients in small claims court How Lawyers Bill Their Clients  Fixed fee: usually happens for specific tasks (preparing a will)  Hourly rate: depends on the experience/success of the lawyer  Contingency fee: lawyer receives percentage of amount that the client receives  Disbursements: out-of-pocket expenses charged to the client  Retainer: deposit made into a trust account from which the lawyer is paid –acts as an insurance policy and ensures the lawyer gets paid Legal Aid  Made for those who have a legal problem but can’t afford a lawyer o Not everyone qualifies, and some of those who do may have to partially pay o Not all types of cases are entitled to legal aid, regardless of eligibility  Duty counsel: court lawyers who assist individuals who aren’t represented by a lawyer o They can give advice and speak on your behalf for simple court matters o They will not take on your whole case or represent you at a trial How to Complain About Your Lawyer  Fees: o Client must first discuss issue directly with the lawyer o If that doesn’t work, then some law societies provide fee mediation services o If mediation doesn’t work, client can have the bill reviewed by a court official  Misconduct: o Client must first discuss issue directly with the lawyer o Law societies provide mediation services to help with the process o The complaint could be reviewed by a court official, at which point there could be a formal investigation and a hearing  Penalties range from reprimands to disbarment  Lawyers are required to have insurance for being sued for negligence  If the client wants restitution, they have to go to a civil court Ethics of Lawyers  Ethics refers to the line between right and wrong, not necessarily what’s legal and illegal  All provincial law societies have mandates to govern the conduct of lawyers in the public interest – both professional and ethical obligations are set out  There isn’t such a code for business people: therefore, the best approach is to make a commitment to ethical behaviour and be a role model for others o Prepare a code of conduct to communicate the importance of ethics to employees o Code of business conduct: formal statement that sets out the values and standards for a company and establishes procedural and behavioural norms o Core ethical values: trustworthiness, respect, responsibility, fairness, caring and citizenship Chapter 2: Introduction to the Legal System What is Law?  Law is the body of rules made by government that can be enforced by the courts or other government agencies o Definition is affected by history, theories, social realities and the current system  In Canada, there is parliamentary supremacy: legislation overrides all other laws and must be consistent with the constitution o Overrides: municipal bylaws, cabinet regulations and rules made by administrative tribunals Categories of Law  All laws are either: o Substantive law: rules that govern behaviour and set limits on conduct o Procedural law: how substantive law is enforced  Substantive and procedural laws are either: o Public law: regulates our relationships with the government o Private law: regulates personal, social and business relationships Origins of Law  Civil Law Legal System: o Started with Emperor Justinian codifying Roman law, modified by Napoleon o Used in Quebec, continental Europe and former French colonies o Only Quebec’s non-criminal legal system is based on the French Civil Code  Common Law Legal System: o Started in England with travelling judges as an alternative to the feudal system o Developed stare decisis: following precedent o Decisions of a judge is binding as precedent to all courts of equal or lower level o Distinguishing the facts: finding justification to deviate from precedent Sources of Law  Common law (case law): started with the common law courts in England o Discovered in the customs and traditions of people who it’s applied to  Equity: started with the Court of Chancery (Court of Equity), which was made to deal with grievances of people that the system couldn’t adequately address due to precedent o Resulting principles known as the Law of Equity, which provides more flexible remedies o Today, the Common Law Court and the Court of Equity are one body  Statutes: parliamentary enactments, superior to judge made common/equity law o Parliament and the provinces legislate the law (11 bodies: 1 federal, 10 provincial), the judicial branch is the court system and the executive branch implement the law o Empowers government agencies to create regulations, which have the effect of law as long as they’re in line with the statute (overrides case law and prior legislation) Law in Canada  Confederation happened with the British North America Act (Constitution Act, 1867): o Divided power between executive, judicial and legislative branches of government o Determined functions of provincial and federal levels of government (Sec. 91 & 92) o The majority of business activities within provinces are governed by provincial legislation or municipal bylaws except things like banking and railways o Peace, Order and Good Government (POGG) clause: federal government has residual power to make law with things not listed in the Constitution Act, 1867  Constitution Act, 1982: o Listed government enactments as having constitutional status o Ended ties with the British Government and created the Charter of Rights and Freedoms o Established domestic formula for constitutional change o The constitution includes case law on constitutional issues  Constitutional validity of legislation: courts look at pith and substance (what is the main purpose, and does that section of government have the power to do so) o Intra vires – within one’s power  Conflicting powers: paramountcy may require that the lower level of government’s law no longer apply, if only one of the two can be obeyed o If not, then people must obey whichever one has the higher standard o Ultra vires – outside one’s power  Delegation of powers: direct delegation between federal and provincial governments is prohibited, but they can be delegated to inferior bodies (e.g. boards, civil servants) associated with the other level of government  Sharing powers: using transfer-payment schemes by setting national standards to which funding is tied so that everyone gets similar levels of service  Legislation: introduced in the form of a bill (three readings) and enacted as a statute, but doesn’t have status of law until royal assent is given (Governor General or Lieutenant Governor) Protection of Rights and Freedoms  Bill of Rights, 1960: meant to limit government’s power to violate basic rights, but ended up being treated like a normal bill and overridden by other statutes  Charter of Rights and Freedoms: o Can’ t be modified except through constitutional amendment o Overrides all other laws: entrenches rights and freedoms o Not necessarily consistent to every party in every instance o Limitation sections:  Sec. 1: allows reasonable limitations of rights and freedoms  Sec. 33 (sunset/notwithstanding clause): legislatures can infringe on rights and freedoms as long as the legislation is reviewed every five years o Fundamental freedoms (2):  1) conscience and religion, 2) thought, belief, opinion and expression, 3) peaceful assembly and 4) association o Democratic rights (3-5):  Right to vote and be a member of legislative assemblies  Ensures elections take place every 5 years except in times of war  Elected body must be called into session once every 12 months o Mobility rights (6):  Ensures that Canadians can travel and live anywhere within Canada, enter and leave the country at will and earn a livelihood anywhere (can be limited by qualification requirements in provinces) o Legal rights (7-14):  Common theme is protection from abusive, unequal or arbitrary application of police or prosecutorial power o Equality rights (15 & 28):  Protection from discrimination based on various characteristics o Language rights: (16-22):  Says that English and French are the major languages, minorities are protected o Charter is supreme law of Canada (52)  Quebec never agreed to the Charter, and subsequent attempts to change that failed (Meech Lake/Charlottetown Accords), leading to a failed referendum in 1996 for separation  Federal and provincial legislation (Canadian Human Rights Act CHRA) protect from discrimination in social, business and private relationships on certain grounds o Complaints sent to Canadian Human Rights Commission (CHRC) o Has both provincial and federal levels Chapter 3: The Resolution of Disputes The Courts  Most hearings are made public to showcase how justice is done, unless an in-camera hearing is held (closed to the public)  One incident can lead to both a criminal and a civil trial  In a criminal case, the crown prosecutes the accused o Burden of proof is beyond a reasonable doubt o Victims are only witnesses, nothing else – the state assesses/enforces the penalty o Victims aren’t usually compensated (restitution of property is possible)  In a civil case, it’s a plaintiff versus a defendant (adjudication of a dispute) o Decision is based on a balance of probabilities o The court will assess liability and pass judgement  Provincial courts: less serious criminal matters, also have small claims/family courts o Judges appointed and paid by the respective provinces o Some provinces are creating new courts for: drug treatment, domestic violence, family and mental health o Sentencing circles: for Aboriginals, all interested persons gather to give judgement on a case, not considered a court and a judge doesn’t have to allow it  Superior provincial courts: serious criminal matters and claims above $25,000 o Some provinces have surrogate/probate courts that deal with wills/estates  Appeal courts: hears cases due to error of law or trial de novo (case that’s been started over) o Permission may be required, panel of judges hears appeals o Present at both provincial and federal level, judges picked federally  Federal courts: deals with cases that fall within federal sphere of power o Tax Court is a separate court that deals disputes for federal tax matters  Supreme Court of Canada: only an appellate court for private citizens o Only hears cases that have nation o nal significance Process of Civil Litigation  Limitation period: court action must be taken within a reasonable period of time after the plaintiff has been harmed (2-6 months, can be extended in some circumstances)  Jurisdiction: the geographic location in which to bring an action (usually either in the place where the incident happened, or in the home province of the defendant)  Pre-trial procedures: o Pleadings: all the documents meant to start/defend a lawsuit, which are meant to state the claims of the dispute, not to argue positions  Traditional way of commencing an action was to issue a writ of summons (abandoned in most provinces)  Statement of claim: sets out the allegations made against the defendant  Statement of defence: provides answers to the statement of claim, including areas of agreement, disputed claims and contrary allegations  If the defendant believes they’re the victim, they can file a counterclaim  Application for direction: questions to judge on what details have to be disclosed, which questions have to be answered, etc. o Discovery:  Discovery of documents: both parties have the right to inspect and document that can be used as evidence  Examination for discovery: both parties (and lawyers) meet and are asked questions about the problem: may be used as evidence during a trial o Pre-trial conference: meeting between parties, lawyers and judge to determine which issues remain to be tried and which ones can be resolved o Offer to settle: if not taken and the trial results differently from the offer, the costs awarded can be adjusted to punish parties for not acting reasonably  Some provinces have ways to expedite the process o The purpose of pre-trial is to focus the dispute, discover weaknesses/strengths of either side and facilitate settlement before trial  The Trial: o Plaintiff has the burden of proof, so they present their case and witnesses first o Leading questions cannot be asked during direct examination o Rules of evidence: rules governing the type of testimony that can be obtained from witnesses o After both sides have presented their case, they make closing statements: if anything new comes up, the other party has a chance to respond to it o The judge determines the law and the jury is the trier of fact (unless it’s the judge alone)  Legal costs: o Party and party costs: predetermined scale and normally only a portion of actual fees, awarded to victorious party in a civil action o Solicitor and client costs: If judge finds conduct of losing party objectionable, losing party pays all costs for both sides  Remedies: o General: based on estimates, for pain/suffering or future losses o Special: reimbursement for costs before the trial o Punitive/exemplary: punishing wrongdoer o Accounting: profits from wrongdoing go to the victim o Injunction: stopping an action from happening o Specific performance: proper performance of a legal obligation (e.g. contracts) o Declaration: notifying the law and the legal rights of each party  Enforcement: o If judgement debtor refuses to pay, judgement creditor needs to take action o Examination in aid of execution: follows judgement, used to determine assets and income of debtor that can be seized/garnished o Seizure and sale of assets: broken down into:  Fee for the government official/firm that sells it  Preferred creditors: people who used the asset as collateral  Secured creditors: people who take priority due to legislation  Unsecured creditors: all others, including judgement creditor (pro rata) o Necessities of life and property needed to earn income are exempt from seizure o Garnishment: part of funds due to judgement debtor redirected to court  Judicial remedies before judgement: o Bank accounts and money owed to the po
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