Business Law II - 2276 - Midterm Review Notes

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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
- The 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 case.
- If 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 apply
- The 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 court‘s 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 obiter
- Reasons for doctrine of precedent: consistency, fairness, efficiency, certainty and
- 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
- Provincial 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 SCC.
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Tort Law Cases (pgs.40-79):
- Assault/Battery: 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 necessary.
- As distinguished from battery, assault need not involve actual contactit only
needs intent and the resulting apprehension.
- Malette v. Shulman (pg.41):
o 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 Dr.Shulman. He
was found liable for the tort of battery, and Malette was awarded $20,000.
This is the appeal decision)
o Robins, J.A. (Appeal judge giving decision)
o First notes that he was not found liable of negligence. Acted ―promptly,
professionally and was well-motivated throughout‖
o Liability imposed on the basis that the doctor tortuously violated his
patient‘s rights over her own body by acting contrary to the Jehovah‘s
Witness card.
―His 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
o The doctor was clearly faced with an emergency. The victim was
unconscious, critically-ill and needed a blood transfusion to save her life.
If there were no Jehovah’s 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
o Had the patient explicitly expressed her non-consent 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 patient‘s life, then he must
respect their beliefs.
o ―A doctor is not free to disregard a patient‘s 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
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doctor from following his patient‘s 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 consent‖
o Appeal Dismissed
- Fortey (Guardian ad Litem) v Canada (A.G.) (pg.42)
o Court of Appeal for British Columbia
o Negligence case police officers failed to override refusals of a man to
receive medical attention (the man was a minor and intoxicated).
o 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
- Defense of Consent:
- A defence against criminal liability may arise when a defendant can argue that,
because of consent, there was no crime (e.g., arguing that permission was given to
use an automobile, so it was not theft)
- Halushka v. The University of Saskatchewan (pg.43)
o Court found that a consent form signed by a university student who had
submitted to medical testing at the University‘s 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. (pg.44)
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
o There were issues of deceit, extortion, infringement of trade secrets,
damage to personal property, etc.
o The judge ordered the return of personal property and awarded the Gu
Group punitive damages of $50,000 and conversion for $25,000.
o Court of Appeal citing Whiten v. Pilot Insurance Co. on punitive damages
- A conversion (trespass to chattle) is a voluntary act by one person inconsistent
with the ownership rights of another.[1] It is a tort of strict liability.[2] Its criminal
counterpart is theft.
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