Business Law II - 2276 - Midterm Review Notes

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Western University
Management and Organizational Studies
Management and Organizational Studies 2276A/B
Phillip King

Learning from cases Binding Precedent For example in December of 2010 the Ontario Court of Appeal ruled that Conrad Black could sue various defendants in Ontario despite the argument of the defendants that Ontario was not the proper forum for the lawsuit Applying the doctrine of precedent if a trial court in Ontario now hears a similar case the trial court would be bound to follow the decision of the Court of AppealThe degree to which an earlier case from another jurisdiction will be persuasive depends on various factors including the jurisdiction in which the earlier case was decided the level of court which decided the earlier case the date of the earlier case and possibly even the reputation of the judge or judges who decided the earlier caseIf the doctrine of precedent only applied when all the facts of two cases were identical then the principle would never apply Instead the lower court must decide whether the facts of the later case are sufficiently similar to the earlier case so as to invoke the doctrine of precedent and yield a similar result If the lower court decides that the facts are sufficiently similar and the principle of precedent applies then the lower court must follow the precedent set by the higher court If the lower court decides that the facts are not sufficiently similar then the lower court is not bound to follow the decision of the higher court because the doctrine of precedent does not applyThe part of the decision that is binding on the lower court is called the ratio or ratio decidendi The ratio of a decision is defined as the reason for the decision It is a combination of the material facts of the case plus the courts decision Facts which are not material are not part of the ratio Everything in a decision that is not ratio including immaterial facts hypothetical situations and other material is obiter or obiter dicta It is sometimes difficult to determine what is ratio and what is obiter and lawyers and judges sometimes disagree Accordingly part of interpreting legal decisions is figuring out what is ratio and what is obiterReasons for doctrine of precedent consistency fairness efficiency certainty and predictability It is not entirely clear whether a Court of Appeal is bound by its own prior decisions In Ontario the Court of Appeal generally considers itself bound by its own previous decisions unless the liberty of the subject is involved or unless the court finds that the prior decision was given inadvertently without consideration of an applicable authority or statutory provision In other provinces Courts of Appeal have allowed themselves greater freedom in overruling their own prior decisions Accordingly it may be said that while the prior decisions of a Court of Appeal may not be binding on the same court they are nevertheless highly persuasiveProvincial courts are not bound to follow decisions of the Federal Court of Appeal and the Federal Trial Courts are not bound to follow decisions of the provincial Courts of Appeal Of course all of those courts are bound to follow decisions of the SCCTort Law Cases pgs4079 AssaultBattery assault is the tort of acting intentionally that is with either general or specific intent causing the reasonable apprehension of an immediate harmful or offensive contact Because assault requires intent it is considered an intentional tort as opposed to a tort of negligence Actual ability to carry out the apprehended contact is not necessaryAs distinguished from battery assault need not involve actual contactit only needs intent and the resulting apprehension Malette v Shulman pg41o Ontario Court of Appeal Mrs Malette sued multiple defendants for providing her with a blood transfusion to save her life against her will In the trail level decision the only person found liable was DrShulman He was found liable for the tort of battery and Malette was awarded 20000 This is the appeal decisiono Robins JA Appeal judge giving decision o First notes that he was not found liable of negligence Acted promptly professionally and was wellmotivated throughouto Liability imposed on the basis that the doctor tortuously violated his patients rights over her own body by acting contrary to the Jehovahs Witness cardHis honest and even justifiable belef that the treatment was medically essential did not serve to relieve him from liability for the battery resulting from his intentional and unpermitted conduct o The doctor was clearly faced with an emergency The victim was unconscious criticallyill and needed a blood transfusion to save her life If there were no Jehovahs Witness card he undoubtedly would have been entitled to administer blood transfusions as part of the emergency treatment and could NOT have been held liable for doing soo Had the patient explicitly expressed her nonconsent prior to being unconscious and that she knew the repercussions of her actions it would be a very different scenario Here the patient anticipating an emergency in which she might be unable to make decisions about her health care contemporaneous with the emergency has given explicit instructions that blood transfusions constitute an unacceptable medical intervention and are not to be administered to her After this the judge says that if a doctor is not entitled to perform the necessary operations to save a patients life then he must respect their beliefso A doctor is not free to disregard a patients advance instructions any more than he would be free to disregard instructions given at the time of the emergency The law does not prohibit a patient from withholding consent to emergency medical treatment nor does the law prohibit a doctor from following his patients instructions While the law may disregard the absence of consent in limited emergency circumstances it otherwise supports the right of competent adults to make decisions concerning their own health care by imposing civil liability on those who preform medical treatment without consento Appeal Dismissed Fortey Guardian ad Litem v Canada AG pg42 o Court of Appeal for British Columbiao Negligence casepolice officers failed to override refusals of a man to receive medical attention the man was a minor and intoxicatedo It could be noted that they did not want to commit the tort of battery by forcing him to have medical treatment but by not taking him to a hospital to be assessed by a doctor for the that diagnosis they were liable for negligenceDefense of Consent A defence against criminal liability may arise when a defendant can argue that because of consent there was no crime eg arguing that permission was given to use an automobile so it was not theft Halushka v The University of Saskatchewan pg43 o Court found that a consent form signed by a university student who had submitted to medical testing at the Universitys hospital was not valid in law because the doctors failed to give him a fair and reasonable explanation of the proposed treatment and probable effects or risks so he could make an informed consent o Student had suffered a complete cardiac arrest during treatment and was resuscitated by the manual massage of his heart o Student succeeded in his action for trespass to person Gu v Tai Foong International Ltd pg44 o Ontario court of Appeal o Someone from Lam Group stole a laptop from Gu during a joint venture agreement The action led Gu Group Company commencing an action against the Lam Group for among other claims conversion and return of propertyo There were issues of deceit extortion infringement of trade secrets damage to personal property etco The judge ordered the return of personal property and awarded the Gu Group punitive damages of 50000 and conversion for 25000o Court of Appeal citing Whiten v Pilot Insurance Co on punitive damagesA conversion trespass to chattle is a voluntary act by one person inconsistent with the ownership rights of another1 It is a tort of strict liability2 Its criminal counterpart is theft
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