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York University
Administrative Studies
ADMS 2610
Sam Ling

Chapter 1: The Law and the Legal System Learning the Law  Business law is important to business persons  A knowledge of legal issues is essential to the making of proper risk management decisions  Learning the history of law helps us to better understand the law in its present day context  People need to understand the types of basic legal issues that affect business planning/operations  People need to be aware of developments in law that may impact our specific type of business The Legal Environment for Business Business law can be divided into a number of general areas which includes:  Tort law- injuries to another's person, property or reputation  Contract law- day-to-day operations of a business  Business Organizations—sole proprietorship, partnership, corporation  Land Law- the purchase or leasing of premises or the financing of the purchase of land and buildings  Intellectual Property  Environmental Law The Nature of the Law  Reflects the society we live in  Based on historical influences Definitions of “Law”  Difficult to define in a precise manner, because of the nature of law itself—more of a concept rather than an object or thing that has clearly defined limits or parameters. However law has been defined as (though may not be precise and all en-compassing):  A set of rules that enable people to live together and respect each other’s rights  Rules of civil conduct Rights versus Privileges Right – are things we can do with impunity  Others have a duty not to interfere with our rights i.e. Freedom of Speech Privilege – actions that may be taken by an individual under specific circumstances and if improperly exercised it can be taken away by the state example: driver’s license - Rights can become privileges due to social pressure or the state’s desire for funds The Role of Law  The Law – the body of rules that are obligatory in the sense that sanctions are normally impose if a rule is violated. Common law and statute law are two major sources of law - Normally enforced by sanctions Social Control  using laws to shape society Settlement, Rules and Protection There are 3 functions of the law: settling disputes, establishing rules of conduct and providing protection for individuals. Early Development of Law Within the Family  word of mouth from generation to generation  early form of precedent Within City-State  Formation of governments to deal with disputes  Balance between common good and individual freedom  Roman Empire spread rule of law over much of Western Europe, Middle East The Rise of the Courts and the Common Law Customary law  Religious laws  Community based Pre-Norman England  Roman law followed by Germanic influence to the Norman conquest in 1066 Norman England and the Common Law  Power consolidated with the King and the King’s justices  Central judiciary established under King Henry II o Beginning of the precedent system of common law o Written records began to be kept The Sources and Components of Modern Canadian Law  The Common Law or Case Law – the law as found in the recorded judgments of the courts o Common Law could be determined from judges through the doctrine of stare decisis (to stand by a previous decision) i.e. the doctrine means that a judge must apply the previous decision of a similar or the same case. The decision can be provided from the 1) judge’s own court, 2) a court of equal rank, or 3) higher court.  The Statute Law – the law passed by a properly constituted legislative body  The statutes laws are the product or end result of a legislative process  Steps in the legislative process o Idea for legislative proposal o Ministry review of proposal o Minister approval o Cabinet submission by minister o Cabinet submission reviewed by Management o Board of Cabinet o Approved cabinet submission sent to Legislative o Drafting Office o First Reading of the bill o Second reading o Select or standing committee o Committee of the whole house o Third reading o Royal assent o Proclamation in force - Judicial interpretation and application of ``statute law`` creates case law. Common Law Stare decisis—Latin phrase—``to let a decision stand`` or ``to stand by a previous decision`` Applies if a decision:  From the judges own court—persuasive  From a court of equal rank—persuasive  From a court of higher rank—binding - This is a basic judicial principle that judges in lower courts must follow higher court direction when dealing with similar facts and issues. - Creates certainty and predictability - Predictable yet flexible  More flexible than a civil code  Can adapt to social changes such as same sex marriage  Requires familiarity with ongoing evolution of statute and case law Canon Law Canon Law: the law developed by the church courts to deal with matters that fell within their jurisdiction (also known as church law) - Original jurisdiction over religion, family, marriage, morals, estates - Influence today (Sunday shopping laws, ecclesiastic courts) Merchant Law Law Merchant: The customs or rules established by merchants to resolve disputes that arose between them and that were later applied by Common Law judges in cases that came before their courts. - Example today would be the sales of goods legislation Equity Equity: Rules originally based on decisions of the king rather than on the law and intended to be fair  Based on fairness, equality, justice  Overcome the harshness and rigidity of the common law  Takes precedence over common law when equity and common law conflict  Over time decisions of the King became principles of equity and eventually equity and common law merged Statute Law  Statute—Latin word statutum meaning ``it is decided``  Laws made by governments  Result of legislative process  Debated, voted upon and passed through a strict process established to protect democratic principles  Process fairly different Federally and Provincially 1. Bill: a proposed law presented to a legislative body 2. Motion: the decision to read a bill 3. Royal Assent: Needed in order for a bill to become law 4. Proclaimed: When a law becomes effective  Revised Statuses: updated or amended statuses in order to reflect changes in society (update on current laws are now done online) Quebec’s Civil Code  Influence of the French Civil Code system Civil Code: A body of written law that sets out the private rights of the citizens of a state  Historical from Prussia and codified by Napoleon in the 1800’s.  Recent Code is from 1994 Codification of Common Law Codification of the common law into statutes  Bills of exchange act; partnership act; sale of good act  Took place during late 1800s  Advantage over common law is certainty  Still requires judges interpretation Administrative Law Administrative law: A body of rules governing the application of statutes to activities regulated by administrative tribunals or boards Regulations: Procedural rules made under a statute Administrative Tribunals: Agencies created by legislation to regulate activities or do specific things - Power is delegated from legislative body to tribunal or board - Decisions may be subject to judicial review The Constitutional Foundations of Canadian Law Constitution: The basis upon which a state is organized and the powers of its government defined - The supreme law-rules for making laws The Canadian Constitution 2 major parts  Canadian Charter of Rights and Freedoms  Amending formula - 1867 BNA (British North America) Act and 1982 Canada Act - Legislative bodies that do not follow constitutional rules risk having their laws declared unenforceable or ultra vires - Section 91: Federal powers -Section 92: Provincial powers - Governments are limited to making laws within their area of power Residual power →given to the federal government; all matters not expressly given to the provinces belongs to the federal government The Canadian Charter of Rights and Freedoms - Sets out basic rights and freedoms of all Canadians that governments are to respect - Entrenched in the Constitution – difficult to change - Section 1 (Reasonable Restrictions)→The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. - Notwithstanding Clause (s.33)  Permits the government to pass legislation that conflicts with or overrides charter rights by way of a “notwithstanding clause”  Some sections of the Charter cannot be overridden  Sunset clause – s.33 laws passed under this section last for a five year period, unless renewed Fundamental Freedoms Everyone has the following fundamental freedoms:  Freedom of conscience and religion  Freedom of thought and expression  Freedom of the press  Freedom of peaceful assembly  Freedom of association Mobility and Personal Liability Mobility →Permits free movement within Canada Personal Liberty  Enjoy life without interference of the State  Life, liberty and security of the person  Right to be free from unreasonable search and seizure  Free from arbitrary detention or imprisonment Right to Due Process  Informed of rights on arrest  Right to a lawyer  Only arrested for committing an offence  Innocent until proven guilty  Right to fair trials, reasonable bail Equality Rights  Every individual is equal before the law  Note language of charter language: person, citizen, individual  No discrimination based on race, creed, colour, religion, sex, age, national or ethnic origin or any mental or physical disability  Affirmative action is allowed for disadvantaged groups  2 official languages of English and French  Government (federal) to provide services in both official languages  Rights of education to be made available in preferred official language Enforcement of Rights  Apply to the courts to challenge legislation that offends Charter rights  Charter only applies to governments not to private groups or individuals  Private matters are dealt with through Provincial human rights legislation  “Read Into” the recent trend of courts to read into the Charter words or provisions that the legislative bodies did not Classification of Laws Statute law and common law may be classified in 2 broad, general categories: substantive law and procedural law Substantive Law: All laws that set out the rights and duties of individuals Procedural Law: The law or procedures that a plaintiff must follow to enforce a substantive law right Substantive right: An individual right enforceable at law Substantive law can be further subdivided into 2 types of law: public law and private law Public Law: The law relating to the relationship between the individual and the government Private Law: The law relating to the relationship between individual Chapter 2: The Judicial System and Alternative Dispute Resolution Introduction  Courts role: o Decide disputes o Interpret the Constitution o Decide division of powers o Interpret contracts o Determine responsibility and damages for loss Development of Law Courts  Long period of development o 1794 - Judicature Act o 1837 - Court of Chancery o 1849 - Court of Common Pleas o 1856 - Merger of Queen’s Bench and Common Pleas o 1867 - BNA Act Early Law Reform  Many reforms passed between 1873 and 1925 o Beginning of development of the Supreme Court o Gradual reduction in formal process  1982 –Introduction of the Charter of Rights and Freedoms The Structure of the Judicial System  Jurisdiction – right or authority of a court to hear a matter o Different courts with different jurisdictions o Authority over the parties or the property or the matter o Authority can be divided in many different ways - Monetary – up to a certain amount - Geographic – federal, by province or provincial areas - Subject matter – by area of law (criminal, civil, etc.) - 2 general classifications of courts: trial and appeal  General classifications o Courts of original jurisdiction - Cases heard for the first time (trial courts) o Courts of appeal - Hear appeals from trial courts - Superior or higher courts - Do not hear evidence - Look for errors of law Federal Courts  Deals with federal matters under federal government jurisdiction o Admiralty, patents, tax, trademark, immigration, copyright  Structure o Federal court trial division o Federal court of appeal Provincial Courts - Each province has authority to establish own system - Variation in names and powers exist, but overall similar in function Criminal Courts  Magistrate’s or Provincial Court o Court of original jurisdiction o Initially deals with criminal matters o Holds preliminary hearings of more serious crimes to determine if sufficient evidence exists to send it to a higher court  Provincial Supreme Court o Hears more serious criminal matters  Youth courts o Hears cases of youth who commit crimes o 12 years or older to under 18 years old  Criminal Courts of Appeal o Hear appeals from lower courts Civil Courts - Deals with disputes between private persons (i.e. disputes that arise between corporations and individuals, or between corporations or individuals and the government)  Small claims court o Hear disputes up to a certain amount of money o Amount varies by each province  Provincial Supreme Court o Hears civil disputes outside the jurisdiction of lower courts o Also deals with matters specifically set in the superior courts  Surrogate (Probate) Court o Deals with administration of wills and estates Civil Courts of Appeal  Provincial Court of Appeal o Hear appeals in each province from lower courts Supreme Court of Canada  Highest court in Canada  Hears all appeals from all courts including federal court  Right to appeal is restricted  In civil cases, leave (permission) by the court must be granted The Judicial System in Action Criminal Court Procedure  Enforcement of criminal law o Usually same court that deals with civil matters o Minor or lesser offenses dealt with by way of summary conviction rules o Serious matters by way of indictment o Procedure: 1. Offense is read by crown 2. Accused makes a plea (guilty or not guilty) 3. Guilty plea – speak to sentence and penalty imposed 4. Not guilty plea – hear evidence at trial and court makes a decision Civil Court Procedures Pleadings: Written Statements prepared by the plaintiff and defendant that set out the facts and claims of the parties in a legal action, and are exchanged prior to the hearing of the case by the court  Claim o Plaintiff – party bringing an action o Defendant – party defending an action o Various documents: - Statement of claim or defense - Writ of summons - An appearance  Close of Pleadings o Once pleadings have been closed, either party sets it down for trial o May require some form of attempt at dispute resolution before going to trial o Examinations for discovery may take place to clarify points in either parties’ pleadings (purpose is to know the other sides case) Trial  Procedure: 1. Plaintiff opening 2. Defendant opening 3. Plaintiff presents evidence and calls witnesses 4. Defendant can cross examine 5. Defendant presents evidence and calls witnesses 6. Plaintiff right to cross examine 7. Parties sum up their cases 8. Judge or jury deliberate to decide matter 2 types of Witnesses 1. Ordinary Witnesses o Give (direct) evidence of what they saw or heard 2. Expert Witness o Recognized experts on a subject and give opinion evidence – medical experts, accountants  Only “best evidence” may be presented – no hearsay evidence (what someone heard someone else say) Appeals - Can appeal to a higher court if one feels the judge erred in application of the law or admission of evidence - Must serve a notice of appeal within a short time after the trial judgment - Court can: - Affirm - Reverse - Send back for a new trial Court Cost  Party costs o Award successful party the costs incurred plus a fixed counsel fee according to a schedule or tariff o Usually at discretion of court, but almost always rewarded  Solicitor client costs o Awarding entire legal expenses if in opinion of court for unwarranted suits or defenses Contingency Fees Contingency Fees: A lawyer’s fee payable on the condition of winning the case - Practiced in the United States - Pros: allows for greater access of justice for plaintiffs who would not otherwise be able to hire a lawyer - Cons: uncourageous frivolous litigation and compromises a lawyer’s sense of justice in the search for profit Class Actions: An action where a single person represents the interests of a group, who will share in any reward The Law Reports  The published decisions of the courts o Found in different series of reports Case citations  Used by legal profession to identify cases as persuasive argument before the courts  Set system of citation must be used Judicial Appointment Process  Federal Government o Appoints Supreme Court, federal court, tax court, provincial Supreme Court  Provincial government o Appoints provincial court judges (trial courts)  Process o Commissioner makes recommendations to a committee Administrative Tribunals  Purpose: o Boards or commissions charged with regulation of certain matters o Tribunals powers set forth in statutes o Limited to powers granted to them under statute Ad hoc tribunal: A tribunal established to deal with a particular dispute between parties Alternative Dispute Resolution  Alternative to the courts  2 types o Mediation o Arbitration: A process for the settlement of disputes whereby an impartial third party or board hears the dispute then makes a decision that is binding on the parties. Most commonly used to determine grievances arising out of a collective agreement, or in contract disputes - Commercial Arbitration - Labour Arbitration The Legal Profession Attorney: A lawyer Solicitor: A lawyer whose practice consists of the preparation of legal documents, wills and other documents that could not appear in court (traditionally in England) Barrister: A lawyer who acts for clients in litigation or criminal court proceedings Canada – all lawyers are both barristers and solicitors Chapter 3: Business Regulation Introduction Administrative law: - includes laws, rules, decisions, and directives of boards, agencies, officials, and commissions - includes all levels of government Administrative tribunals: agencies created by legislation to regulate activities or do specific things Process: - Statute creates the board, commission, or agency to supervise an activity - Sets out broad policy guidelines for the regulation of the activity - Sometimes boards can be in conflict with each other Government Regulation of Business  Regulation of Business and Professions o Much of business activity is regulated o Important that businesses are aware of such regulation o Failure to comply can lead to closing of business or penalties o Most professions are regulated by self-governing bodies - Law societies, College of physicians and surgeons, etc. Regulatory Control of Professions and Skilled Service Providers  Professionals: usually a self-governing body  Business persons or traders: branch of a particular ministry of the government to handle the regulation of individuals  Policy Goals: o Certification or entry requirements o Education/training process set up o Registration or licensing process - Body has the right to revoke the license The Hearing Process  Authority: o Bodies have power to deny or revoke the rights of a person to practice a profession or engage in trade o May be empowered to levy sanctions and/or penalties  Natural Justice o Such powers must comply with natural justice - Notice of charges against a member - Opportunity to prepare and present a case - Right to a decision with reasons which can be appealed to the courts and overturned if unreasonable Broad Policy Administrative Law Employment  Labour relations legislation o Union certification, collective bargaining, etc  Human rights board  Pay equity  Employment standards  Workers compensation Securities Regulation  Issuance of securities  Regulation of investment dealers and brokers  Protection from unfair or fraudulent practices Control of Supplies and Services  Energy boards, gas boards, agriculture boards  Telecommunications, inter-provincial transportation, banking and many other commercial activities Municipal regulation  Delegated by provincial governments to municipalities  Land Development o Planning legislation – sets out broad policy guidelines and procedures o Zoning by- laws - How land may be used - where buildings and other structures can be located - the types of buildings that are permitted and how they may be used - the lot sizes and dimensions, parking requirements, building heights and setbacks from the street. The Appeal Process for Administrative Decisions  Administrative boards decisions are quasi-judicial in nature  Decisions must be reached in a fair and just manner  Requires an appeal process to ensure natural justice  Some provide for internal appeal process Judicial review: The judicial process whereby the decision of an administrative tribunal is examined by the court to determine if the decision making process and decision was unfair or flawed - if no appeal process exists, then decision is final and binding unless the decision or process is flawed - if decision or process is flawed can appeal to courts or judicial review of the decision - usually not overturned unless patently unreasonable, biased decision maker or rules of natural justice are not followed Chapter 4: Intentional Torts Tort Law Defined Tort- legal term derived from the Latin word tortus meaning “wrong”. - Person’s behaviour has unfairly caused someone else to suffer loss or harm The Development of Tort Law  A tort and crime can arise from the same incident; Distinction between criminal and tort law: o Criminal is public (crown brings the action)—public wrongs or wrongs by society o Tort law is private (injured party brings the action in civil court)—private wrongs or wrongs against the individual Intentional Interference with the Person Assault and Battery Assault: A threat of violence or injury to a person Battery: The unlawful touching or striking of another person - Not every application of force is a battery in law; applied with the intention of causing harm. If it does not cause harm, it must be done without consent or in anger Damages—to compensate victim for injuries; and punitive damages awarded in situations of vicious and unprovoked attacks - Defenses: Provocation and Self Defense Provocation—only taken into account in determining punitive damages; i.e. still have liability Self Defense—can be a complete defense if defendant can establish that he/she had a genuine fear and force used was reasonable in circumstances Employer Vicarious Liability: The liability of an employer for acts of his or her employees in the course of business - employer liable only for civil consequences not criminal unless directed or authorized the act False Imprisonment - unlawful restraint or confinement of the individual by a person - most common in security personnel situations - need not require actual physical restraint - may restrain if a crime was committed - Peace officers may mistakenly restrain without committing the tort of false imprisonment - Police must have reasonable and probable grounds Forcible Confinement: confinement against a person’s will - a criminal offence - lack of resistance is generally not a defense Defenses (to false imprisonment) - if you find someone committing an indictable offence you can arrest the person - if you have reasonable grounds to believe a criminal offence has been committed, and the person committing it is escaping from someone who has authority to arrest the person you may arrest that person - if you own or are in charge of property and you find someone committing a criminal offence on or in relation to the property, you may arrest the person - person seized in process of committing a crime - innocent person falsely seized but with reasonable and probable grounds to believe that person committed a crime (not mere suspicion) Defamation Defamation: False statements that injure a person’s reputation - 2 forms of defamation: Libel and Slander Libel (printed or published): defamation in some permanent form, such as in writing, a cartoon, etc; applies to the internet today Slander (spoken): false statements or gestures that injure a person’s reputation Defenses (for defamation)  Truth- as to the statements made  Absolute privilege- protects the speaker whether statements are true or false or even made maliciously o Limited to statements made in parliament, Royal Commissions, courts  Qualified privilege- Statements made in good faith without malicious intent; to allow free speech on matters of public importance example: letters of reference  Death of a party- cannot defame the dead Criminal Element- Libel can be criminal if published without lawful excuse or justification exposing the person to hatred, contempt or ridicule Fair Comment—Elements: 1. Reasonable person recognizes the statement as a comment based on true facts 2. Comment must be of public interest 3. Comment must be “fair” or represent an honest expression of the real view of the person making the comment Intentional Interference with Land and Chattels Trespass: A tort consisting of the injury of a person, the entry on the lands of another without permission, or the seizure or damage of goods of another without consent Trespass to Land - Act of entering land without the express or implied consent of the person in lawful possession - Originally there with permission, but refusing to leave when requested to do so - Tunnelling under another’s land without permission - Erecting a wall or fence on another’s land, stringing wires over another’s land - Things can trespass such as overhanging eaves or trees Conversion and Willful Damage to Goods Conversion: The refusal to deliver up (return) chattel to its rightful owner by a bailee - lawful owner must be denied possession and enjoyment of the goods (e.g. refuses to return goods to owner) and defendant must retain the goods without rights - willful damage to goods while in owner’s possession (e.g. puncturing tires of cars on dealer’s lot) Remedy – monetary damages equal to the value of goods taken Consists of:  Originally there with permission but refusing to leave when requested to do so  Tunnelling under another’s land without permission  Erecting a wall or fence on another’s land, stringing wires over another’s land  Things can trespass such as overhanging eaves or trees - Rights of bailee in possession o The bailee does not acquire ownership o Bailee may act like an owner against those who interfere with his possession as a bailee o If the bailee sues to recover damages, they are held in trust for the owner-bailor o The bailor can also sue someone who interferes with the bailee’s possession for negligence or interference with the bailor’s property rights - The right of the bailee to return the goods o The bailor has the right to the returnof the identical goods originally delivered to the bailee, unless they are fungible goods o Fungible goods are those which are indistinguishable for other goods of the same type, and which are interchangeable Business Related Torts - Covers situations where business engage in improper practices that cause injury to others - Untrue statements about competitor’s goods or services - Attempts to steal trade secrets - Agreements to restrict trade between businesses - Protected through common law and statute law (Competition Act) Slander of Goods and Injurious Falsehood Slander of goods: A statement alleging that the goods of a competitor are defective, shoddy or injurious to the health of a consumer - can apply to consumers and businesses - e.g. Salesperson: Don’t buy the other store’s plasma televisions, I’ve checked them out and they’re all defective Injurious Falsehood: False statements about a firm, its products or business practices intended to dissuade others from doing business with the firm - wider scope than with slander of goods Slander of title: An untrue statement about the right of another to the ownership of goods - similar to slander of goods - statements that the competitor or seller has improperly acquired the goods put up for sale - e.g. Spokesperson: You don’t want to buy the other store’s Toronto Maple Leaf hockey shirts, they’re not even officially licensed NHL products Breach of Confidence - Improper dealings with a competitor’s employees (e.g. offering money for trade secrets) - Damages: monetary damages, dismissal of employee Restraint of trade: agreement between firms to fix prices, injures competition, or prevents others from entering a market - covered by Common law and Competition Act - E.g. Gas manager to another: Why don’t you duplicate my gas prices this month, and I’ll copy your prices next month? Inducing breach of contract – inducing another to break or sever a business relationship - e.g. A force B stop doing business with C; otherwise A won’t buy from B. C can take action against A Deceit: A tort that arises when a party suffers damage by acting upon a false representation made by a party with the intention of deceiving the other - arises from fraudulent misrepresentation - must be; 1) a material nature; 2) made with the intention of deceiving; 3) other party relied upon statement Fraudulent Conversion – obtaining goods under false pretenses; not theft since the owner did give the party the goods - E.g. Supposed Employee: I’m the personal assistant of Bill Gates, and he wants his new Xbox 360 delivered tomorrow Unfair Business Practices Unfair Business Practices: Business practices designed to take advantage of consumer inexperience or ignorance - usually dealt with through consumer protection laws - E.g. Salesperson: I just made a killing selling that use car that was ruined in the flood to that elderly illiterate man who doesn’t even really speak English and knows nothing about cars Chapter 5: Negligence and Unintentional Torts The concept of tort liability: one should not intentionally cause injuries to another. Initially only deliberate direct injury was actionable Negligence  3 Requirements of Negligence: 1. Someone owes a duty not to injure (defendant owes plaintiff a duty not to injure) 2. There is an act or omission in breach of that duty (defendant’s actions constitute a breach of that duty) 3. An injury is suffered (plaintiff suffers some injury as a direct result of the defendant’s actions) The Duty Not to Injure Duty of Care: The duty not to injure another person - a right-duty relationship - duty not to injure must be owed to the party who could potentially suffer from the possible injury Standard of Care and Breach Reasonable person: A standard of care used to measure acts of negligence  Standard of care increases when persons owing the duty have special skills or professionals  Breach of standard of care occurs when performance falls below that which the injured party had a right to expect  Expectations and standard of care may be high or low as circumstances change (e.g. we expect greater care and prudence from drivers when roads are slippery or wet)  Based on one standard – what a reasonably prudent person would do if they are in that specific situation Damage and Foreseeability  A reasonable person would foresee that their actions would cause harm to another  If yes = liable If no = not liable  Flexible concept Determining negligence (unintentional):  Usually an omission on the part of someone  Duty to refrain from acting negatively  No duty to act a certain way (positive duty) Causation Causation or “proximate cause”: A cause of injury directly related to an act of a defendant - must be a connection between the defendant’s act and the plaintiff’s injury; cannot be too remote Strict Liability Strict Liability: Responsibility for loss regardless of the circumstances - some activities are inherently dangerous that the public has a right to recover regardless of how remote or unforeseeable the causation of injury may be - e.g. a person or business who maintains a potentially dangerous thing (such as hazardous chemicals, toxic contaminants or hazardous waste) on its land may be held strictly liable for any damage should it escape -still liable if the landowner takes precaution to protect others from injury - not based on intent nor negligence, but it’s so inherently dangerous that any risk associate with it should be borne entirely by the individual wishing to proceed Vicarious Liability Vicarious Liability: The liability at law of one person for the acts of another - employers are responsible for the firm’s employees while working - insurance coverage Res Ipsa Loquitur  Res ipsa loquitur: “The thing speaks for itself” o Plaintiff must prove 1. Cause of injury is something in the exclusive care and control of the defendant 2. Circumstances constitute events that would not normally occur if proper care had been taken by the defendant o Burden shifts to defendant to prove they are not liable if items 1 and 2 above are proven Occupier’s Liability - Duty of care owned by occupier to those who come on their land - Duty owned depends on kind of person entering (ascending order of importance – trespassers to those entering for the benefit of the occupier) Occupier’s Liability  Duty of care owned by occupier to those who come on their land  Duty owned depends on kind of person entering (ascending order of importance – trespassers to those entering for the benefit of the occupier) o Trespassers - lowest duty of care owed - Duty of common humanity, not deliberately injure o Licensees - Enter land with express or implied permission - Medium duty – duty to protect from concealed dangers o Invitees - A person who enters upon the land of another by invitation - owed the highest duty of care o Contractual Entrant - A person who enters on the premises with a colour of right stemming from a contract with the occupier. E.g. hockey game, movie theatre, opera, night club - Duty to warn or protect from any unusual dangers or hazards of which the occupier is aware or ought to be aware Manufacturer’s Liability  Manufacturer’s now owe a duty of care to any foreseeable users of their products if: o they were negligent in their manufacture o they were aware of the dangers associated with the goods and failed to warn  When a manufacturer produces a product which is defective and causes a consumer or user to be injured, the manufacturer may find itself sued for negligence in the design or manufacture of the product  Product liability suits often involve many injured consumers who participate in class proceedings  The use of the doctrine res ipsa loquitur by the plaintiff isn’t uncommon in product liability suits Nuisance  Nuisance: Interference with the enjoyment of real property or in some cases, material interference with a person’s physical comfort - noise, vibration, smoke, fumes and contaminants of all sorts that may affect the use of land  Balance the reasonable use of land by one person with the decrease in enjoyment by another; Requirements: o Serious decrease in enjoyment of land o Specific damage to the land  Remedies for damage: o Injunction: Equitable remedy of the court that orders the person to refrain from doing certain acts o Environmental nuisance – covered through legislation General Tort Defences Contributory Negligence and Volenti Non Fit Injuria  Actions of the injured party contributed to their injuries (plaintiff’s carelessness)  Injured party is the author (partially or wholly) of their own misfortune  Responsibility is apportioned  Volenti non fit injuria: Voluntary assumption of risk of injury e.g. a boxer consents to being hit Act of God Act of God: Unanticipated event that prevents the performance of a contract or causes damages to property - i.e. causes are beyond one’s control - e.g. lightning causes fire in A’s house and spread to B’s house. If B sues A, A can use Act of God as defence Waiver Waiver: An express or implied renunciation of a right or claim - usually must be written and cover the injury contemplated by the parties at the time Release Release: Promise not to sue or press a claim, or a discharge of a person from any further responsibility to act Statute of Limitations - Legislation sets forth time periods within one must bring an action - Most provinces it is 2 years from the date the injury occurred Doctrine of laches: An equitable doctrine of the court which provides that no relief will be granted when a person delays bringing an action for an unreasonable long period of time Tort Remedies Compensatory Damages  Money damages – purpose is to restore the injured party to a whole state (undo the harm done) o Special damages: covers specific losses or costs (actual amounts) o General damages: compensation for pain and suffering, future health issues, permanent incapacity (estimated by courts) Nominal Damages  No actual damages and tort does not result in a monetary loss o Award nominal damages i.e. $1 (as well as court cost and legal fee of plaintiff) Punitive Damages Exemplary/Punitive damages: Damages awarded to “set an example” to deter similar behaviour by others Court Orders  Order by a court to a person to stop doing something or to do something o Contempt of Court: refusal to obey a court order →fine or jail sentence o Order of Replevin: court action that permits a person to recover goods unlawfully taken by another Chapter 6: Special Tort Liabilities of Business Professionals The Professional Professional: A person with special skills not possessed by most individuals -These special skills distinguish professionals from others - Usually has an accompanying professional body (self-regulating body) - A system of accreditation, educational and training Professional Standards and Professional Associations  Purpose: o Protection of the public by ensuring professionals are licensed and qualified  Professional associations ensure the above by having: o Right to revoke or prevent a member from practicing o Establish standards of competence o Review membership conduct and practice complaints o Often provide negligence to their members Professional-Client Relationship Contract  Created by Contract – contractual duty of professional to perform services o Negligent performance is a breach of contract  Implied – by providing services Fiduciary Duty Fiduciary Duty: Duty to place a client’s interests above the professional’s own interests - distinguishes a professional from others - avoid conflicts of interest Tort Duty of Care  Professionals must perform their duty according to the accepted industry standards. It’s determined by the self-regulating body  Professionals must perform their duties according to the standard of skill, knowledge and judgment of a professional of like training and experience  Industry standards are established by expert opinion (i.e. peers)  “As at” the time of the alleged negligence  based on specific situations o Specialist vs. generalist o Locations – rural vs. city o situation – emergency room vs. roadside accident  Error vs. Negligence o Standard does not require perfection  - Not all errors are negligence Informed Consent Informed Consent: Full and understandable explanation of the risks associated with a course of action, and the clear understanding by the client or patient - if not done →a cause of action - if done → a defense Moral obligation (the right thing to do)  Question of law: who is owed a duty? o Two Determinations - Relationship - Client/patient - No duty generally owed to a third party - Reliance - On the professional by the person Negligent Misrepresentation: negligent misstatements made by a professional to a client - may constitute a breach of the standard of care - scope of liability extends to those whom the professional knew would rely on such statements and was intended to be relied upon  Threefold test (determines liability) o Whether the harm was foreseeable o Whether there was a relationship between the parties of sufficient proximity o Terms of public policy it would be just and reasonable to impose the duty on the party making the statement Professional Liability  General rules of professional liability apply regardless of the profession  Certain statutes may impose extra duties for certain professions (i.e. accountants)  Some differences exist for certain professions i.e. Solicitor Client Privilege (for lawyers): the duty of lawyer to keep confidential information provided by a client  Engineers more specialized and restrict their practices to areas of expertise  Architects – liable for design flaws not construction flaws Chapter 7: An Introduction to the Legal Relationship Introduction Contract- an agreement made between two or more persons that is enforceable at law Freedom of contract- the general ability of the parties to create specific rights and duties Historical Development of the Law of Contracts  Merchant law  Ecclesiastic law  Manor courts  17 century development of the bargain theory of contract The Elements of a Valid Contract 1. An intention to create a legal relationship 2. Offer 3. Acceptance 4. Consideration 5. Capacity to contract 6. Legality Intention to be bound: The assumption at law that strangers intend to be bound by their promises Certain types of contracts must be in writing ***All contracts must meet the 6 required elements of a valid contract in order for the contract to be enforceable by the Courts*** Contracts must also be free from any vitiating elements including:  Mistake  Misrepresentation  Undue influence  Duress Intention to create a Legal Relationship  Meeting of the minds (consensual agreement)  Consensus ad idem: Agreement as to the subject or object of the contract  Essential element is a promise o Party intended to be bound by promise made  Intention is a presumption at law Presumptions in Contract Law  Strangers intend to be bound by their promises  Family members and close friends do not intend to be bound in contracts  Both are presumptions that can be rebutted Invitation to do Business  Advertisements are not offers  Invite offers that seller may accept or reject Offer and Acceptance The Nature of an Offer Offer: A tentative promise subject to a condition Communication of an Offer  A offer must be communicated by the offeror to the offeree before acceptance may take place  Offer is not valid until it is received by the offeree, and the offeror is not bound by the offer until such time as it is accepted  Cannot accept an offer you do not know of  Crossed-offers—in the mail do not constitute a contract  Only the person to whom the offer is made may accept the offer Acceptance of an Offer Acceptance: A statement or act given in response to and in accordance with an offer Acceptance—Specific Rules  Offeror is master of their offer and can dictate form of acceptance  If acceptance is to be by oral means then complete by either phone or directly speaking to offeror Acceptance—Postage Rules  Acceptance must be communicated in the manner requested or implied by the offeror in the offer  The acceptance of the offer takes place when the letter of acceptance, properly addressed and the postage paid, is placed in the postboxes or post office  If the acceptance lost while in the hands of the post office, the contract would still be binding  The acceptance would not be complete until the offeror was made aware of the acceptance Acceptance—Other modes of acceptance  Acceptance not complete until offeror made aware of acceptance o Until it reaches offeror o Acceptance complete when and where received Acceptance—Electronic Offer and Acceptance  Electronic documents are covered by federal law, the Personal Information Privacy and Electronic Documents Act  E-documents are deemed to be sent when they enter a system outside of the sender’s control , or when they become capable of being retrieved and processed by the addressee  E-contractors can opt out of statutory provisions in their “terms of use”  Location of the transaction – determining where contract is located is more difficult on-line  Must be clear and unconditional  Counteroffer is a new offer and a rejection of original offer  Silence is not acceptance unless pre-existing agreement to this effect exists  Exception: party assented to the contract  Consumer protection reinforces common law rule of silence is not acceptance  If a method of acceptance is stated, offeree must comply with requirements  If only preference for a particular method of acceptance is stated then o If a method other than the method mentioned in the offer is selected, the acceptance would only be effective when it was received by the offeror Unilateral offers  An offer made to the world at large  The performance of the act is acceptance  Offeror cannot revoke offer so long as offeree is in the course of performing their part Location of the Transaction  Data messages are deemed to be dispatched from the originator’s place of business and received at the addressee’s place of business  Location of contract (choice of law) is not readily evident when messages are routed through multiple nations or provinces servers. The deeming provisions above mark the location of offer and acceptance , not necessarily the location of the contract  Location of contract is quite often stipulated in the express “terms of use” agreed to by the parties  Courts are willing to seize jurisdiction based upon locus of harm or based on taxation/customs issues Effect and Timing of the Click as Offer and Acceptance Click-wrap agreement: An Internet click box of “I agree”, which constitutes valid acceptance of enumerated contractual responsibilities Lapse of an Offer Lapse: The termination of an unaccepted offer by the passage of time, a counteroffer, or the death of a party Rejection of an offer: offer cannot be accepted later unless the original offer is revived Offer lapses after:  Stated time in the offer expires  If not stated period of time, after a reasonable period of time—reasonable period depends on subject matter and circumstances of the transaction Revocation of an Offer  Revocation: The termination of an offer by notice communicated to the offeree before acceptance - Unlike lapse, it requires an act on the part of the offeror to be effective. - Offers can be revoked any time before acceptance unless there is an option - Revocation must be communicated to the offeree - Revocation can be communicated in any form as long as it is communicated  Option: A separate promise to keep an offer open for a period of time - It requires consideration or signed under seal  Indirect Revocation—revocation can be communicated through someone else (indirect) - Must prove offeree had notice of revocation indirectly from a reliable source Part 3: The Law of Contracts Chapter 8: The Requirement of Consideration Consideration Nature of Consideration Consideration: Something that has value in the eyes of the law, and which a promisor receives in return for a promise - What a party gets in return for their promise - A benefit or a detriment Consideration can take many forms including: 1. Money 2. Services 3. Promise not to do something 4. Relinquishment of a right 5. Delivery of property 6. Promise for a promise - A form of the bargaining theory - Consideration must be something done for the promise given - General rule is “no consideration = no contract” Gratuitous Promise—generally not enforceable under law because they lack consideration - The promisor must get something in return for the promise or the promise is merely gratuitous Exceptions (gratuitous services, negotiable instruments and charitable donations) 1. Gratuitous services- If consideration is a service, it must be performed with care and skill; otherwise, the promisor will be liable for any loss suffered due to carless performance or negligence (not breach of contract, but tort committed) 2. Negotiable instruments- One is still liable on a check or note, and to subsequent endorsers even though no consideration exists 3. Charitable donations- most charitable donations are gratuitous promises. If charity can show a specific project undertaken on strength of a donor’s pledge may be enforceable promise. Only on certain circumstances a court will enforce the gratuitous promise: o Needs to be a substantial portion o Not enforceable if it is not a significant donation o Generally difficult to enforce charitable donations without strong consideration Seal as a consideration Seal: A formal mode of expressing the intention to be bound by a written promise or agreement. This expression usually takes the form of signing or affixing a wax or gummed paper wafer beside the signature, or making an engraved impression on the document itself A major exception to the rule of consideration The deliberate act of placing a seal on a document is intention to be bound by the agreement Contract under seal requires no consideration Tenders Differs from the ordinary offer Merely an invitation to submit offers Firm asking for tender can reject or accept such tenders Unless provided to the contrary in the call for tenders, an offer made in response to the call may be revoked at any time before acceptance Tender generally uses seal to render offer irrevocable; payment as money (deposit) as consideration Adequacy of Consideration Court not concerned about the adequacy of consideration Price or value is up to the parties not the courts Exception: if the promise was made under unusual circumstances 1. One cannot snap up an offer 2. Inadvertent typos (rule of rectification) Past Consideration Consideration must be given before contract entered into and not after Cannot be something the person received before promise is made Cannot be something a person is already entitled to receive at law or under a present contract Past consideration is no consideration at all, and the promise is gratuitous New contract requires new consideration Legality of Consideration Consideration must be legal  The promises cannot be illegal or a violation of public policy  Asking for additional funds to complete a construction project o Promise to provide extra funds is gratuitous; new promise requires new consideration Cannot violate Statutes  Contracts with clauses that buyer must resell at fixed or minimum price are unlawful under Competition Act Quantum Meruit Quantum Meruit: A reasonable price for the services rendered (unless family or friends)—As much as he has earned.” A quasi-contractual remedy that permits a person to recover a reasonable price for services and/or materials requested, where no price is established when the request is made Court decides on price based on price of similar goods or services in area Quantum meruit payments may be required where: 1. There is an agreement to provide goods or services, but the price is unspecified 2. The context of the contract or the customs of a trade indicate an expectation that a market price will be paid The Debtor-Creditor Relationship Known as a gratuitous reduction of debt—once a creditor accepts a lesser payment, can’t sue for more later Creditors agreeing to accept less than what is owed is a gratuitous promise New promise requires new consideration Exceptions to this rule exists for business efficiency: 1. Sign under seal 2. Acceptance of something other than money 3. Pay before the due date 4. Third party makes the payment Equitable or Promissory Estoppel Estoppel: A rule whereby a person may not deny the truth of a statement of fact made by him or her when another person has relied and acted upon the statement Promise is enforceable without consideration Only used as a shield (defense) and not a sword (an action) 4 elements prevents the retraction of a promise (requirements of an estoppel) 1. Promise relates to an existing legal relationship 2. Expression of a fact as being true 3. Reliance on statement by other party 4. Reliance is a detriment to the other party Chapter 9: Legal Capacity to Contract and the Requirement of Legality The Minor or Infant Infant: A person who has not reached the age of majority (common law: under 21, most provinces: under 18 or 19)  Minor contracts for necessities (food, clothing, etc.) are enforceable against minors  Minors can repudiate other contracts o The sale of goods act in most provinces provides that a minor must pay a reasonable price for goods that are necessaries that are sold and delivered to the minor o Where a contract is voidable it contains a potential unfairness or invalidity, but it is enforceable until one party exercises and equitable right to repudiate the terms o Where a contract is void its defects and unfairness are manifest and obvious, and the contract is deemed to be unenforceable from the very beginning The Effect of Repudiation  If the contract made by the minor has been fully performed (contract for non-necessary item) then the minor may be bound by the agreement, unless he can show that he had been taken advantage of by the merchant and can return all the goods purchased o Executed Contract: fully executed by the minor (enforceable against minor) unless minor was taken advantage of o Executory: yet to be performed (may not be enforceable against minor) - General rule to executory contracts for non-necessary goods or services is that the minor or infant may repudiate the contract at any time at his or her option (rule applies even when terms of contract are fair for the infant) - Once the contract is repudiated, the minor is entitled to a return of any deposit paid to the adult contractor - If the minor has purchased goods on credit and taken delivery, the minor must return the goods before the merchant is obliged to return any monies paid - Any damage to the goods that is not a direct result of the minor’s deliberate act is not recoverable by the merchant (merchant cannot deduct “wear and tear” to the goods from funds repayable to minor) - If the minor deliberately misrepresents the use intended for the goods, and the goods are damaged, then the merchant may be entitled to recover the loss by way of an action for tort Fraudulent Misrepresentation as to Age - A minor who has falsely presented himself as having attained the age of majority will not be permitted to hold the minor to the contract, so the merchant may be entitled to recover the goods on the basis of the minor’s fraud Ratification and Repudiation Repudiation: The refusal to perform an agreement or promise Ratification: The adoption of a contract or act of another b a party who was not originally bound by the contract or act  When minor has entered into a contract of a continuing or permanent nature and receives benefits and incurs obligations: o The contract must be repudiated within a reasonable time after attaining the age of majority (or the contract is binding) If a minor (engaged in business) continues to accept benefits under a contract after attaining age of majority will be bound Drunken and Insane Persons - Courts treat drunken and inane persons the same way as an infant - liable on any contract for necessaries negotiated by them, and they will be obliged to pay a reasonable price for the goods and services - Contracts for non-necessary items: contract may be voidable by that person when he or she becomes aware of the contract on his or her return to a sane or sober state - Contract must be repudiated as soon as it is brought to the person’s attention after their return to sanity or sobriety - If contract is not repudiated promptly, and all of the purchased goods in returned, the opportunity to avoid liability will be lost Corporation - 2 types of Corporations: Regular Corporations and Special Act Corporations 1. Regular Corporations o Same powers as a natural person o Limitations through internal bylaws (articles of incorporation) are not public knowledge but may in certain cases bind the public 2. Special Act Corporations o Powers controlled by Special Act o Limitations are public knowledge because are contained in a statute Ultra Vires: An act that is beyond the legal authority or power of a legislature or corporate body - Special Act Corporations—not bound by contracts that are ultra vires - Regular Corporations—bound by contracts that are ultra vires – Internal Management Rule Labour Unions - Ability to enter into contracts (collective bargaining agreements) allowed under labour legislation - Normally would be unenforceable (restraint of trade) Bankrupt Persons - Declared bankrupts have limited capacity to contract - Until receipt of discharge bankrupts can only enter into contracts for necessaries - Contract unenforceable against bankrupt parties if agreement is for non-necessities The Requirement of Legality - Contracts that offend public good are unenforceable - Contracts whose purpose is illegal or may be illegal are not enforceable - Some contracts are only rendered voidable by public policy or by specific statutes—Voidable if the parties do not comply with statute or the policy Legality Under Statute Law Generally  Illegal contract o Agreement to commit a crime (rob, assault, abduct, murder, steal goods, or any other act prohibited by the Criminal Code) o Embezzlement – when crime discovered, employee promises employer restitution in return for not reporting (unenforceable) Competition Act  Restraint of Competition o Unenforceable o Act covers a number of business practices contrary to public policy Administrative Acts  Agreements to avoid Workers Compensation, land use planning or wagering laws are void and unenforceable Insurance Policies  Wagers (bets) are unenforceable contracts as a general rule  Exception is insurance contracts (life insurance)  Requirement: an insurable interest o Distinguishes insurance contracts from normal wagers Unlicensed Persons  Contracts with unlicensed trades or professions are illegal  Purpose is protection of the public  Must still pay for goods supplied but not for services rendered  Only voidable at option of party who is not the tradesperson or professional Legality at Common Law: Public Policy Public Policy: The unwillingness of the courts to enforce rights that are contrary to the general interests of the public  Examples: o Obstruct justice, injure public service, injure the state, stifle prosecution o Contracts for the commission of a tort, immoral acts o Exorbitant interest rates o Some are merely unenforceable whereas others are unenforceable and illegal Contracts in Restraint of Trade 1. Agreements contrary to the Competition Act 2. Non-competition agreements with the purchase and sale of a business 3. Non-competition agreements in employment contracts  Last 2 dealt with under public policy - restrictions must be reasonable and not adversely affect public Restrictive Agreements Concerning the Sale of a Business Restrictive Covenant: A contractual clause limiting future behavior - Prima facie void is a restraint of trade - Allowed if the restriction is reasonable as to: 1. Time 2. Business restricted 3. Geographical area Restrictive Agreements between Employees and Employers Non-Competition Clauses - Treated differently than the sale of a business - Serious consequences if someone not able to earn a living - Not enforceable unless serious injury to an employer can be clearly demonstrated - Bargaining position at time contract entered into (employee seldom in a strong bargaining position) is considered Confidentiality Agreements - Enforceable more often than non-competitions clauses - Based on duties of employee in the employment relationship not upon a restraint in trade Public Interest - Restrictive covenant against employees who provide an essential service may not be enforceable if would result in injury to the public Chapter 10: The Requirements of Form, Writing and Privacy Formal and Simple Contracts There are two general classes of contracts: Formal (covenant) and Informal (simple) 1. Formal  Not common 2. Informal (simple) –most common  Implied  Oral  Written Power of Attorney: A legal document usually signed under seal in which a person appoints another to act as his or her attorney to carry out the contractual or legal acts specified in the document - Example of a formal contract Statute of Frauds  Introduced from the UK into Canada as a colony  Still exists in some provinces, in others it has been repealed but incorporated into other statutes  Certain contracts if not in writing are not enforceable  Still valid and existing contracts for other purposes (not void or prohibited) Following contracts covered by the Statute of Frauds (Certain type of contracts must be in writing or they are unenforceable) 1. Contracts by Executors and Administrators – generally not liable for the debts of the testator (the estate), unless they personally assume such debts but only if such contract is in writing 2. Guarantees: a collateral promise (in writing) to answerf or the debt of another (the principle debtor), if the debtor should default in payment. 3 parties in a guarantee o Creditor o Debtor (primary liability) o Guarantor (secondary liability) 3. Assumed Liability for a tort – any agreement whereby a third party promises to answer for the tort of another o Must be in writing o Signed by the party to be charged 4. Contracts concerning an interest in land – land contracts concern an interest in land, including sale of land or lease of land; does not include those ancillary to the land or remote (repairs, renovations, etc); does not include room and board contracts  Part Performance: a doctrine that permits the courts to enforce an unwritten contract concerning land where certain conditions have been met: o Acts performed relate to land in question o Lack of written memo would perpetuate a fraud and a hardship on the person o Agreement must relate to an interest in land o Agreement must be valid and enforceable apart from the requirement of writing and verbal evidence must be available to establish the existence of the agreement Requirements for a Written Memorandum  Need not be in a formal document  Need all terms of contract (3Ps’: parties, property, price)  Can be an exchange of letters – 2 letters can constitute an agreement in writing  Must be signed by the party against whom it is being enforced  A contract under seal is enforceable even if there is no consideration Parol Evidence Rule  Parol Evidence Rule: A rule that prevents a party from introducing evidence that would add to or contradict terms of a contract o Limits the kinds of evidence that may be used to prove terms of a contract o Cannot contradict a clear unambiguous contract o If the language of the written agreement is unclear or ambiguous, oral evidence or other written evidence may be used to assist in interpretation o If there is a collateral contract, it may be used to interpret and modify the main written agreement  Exceptions to the Parol Evidence Rule: o Condition Precedent: A condition that must be satisfied before a contract may come into effect. If condition isn’t met then contract is cancelled o Doctrine of Implied Term: The insertion by the court of a standard or customary term omitted by the parties when the contract was prepared - Implied terms cannot conflict with express terms - Usually implied in order to implement the agreement o Collateral Agreement: An agreement that has its own consideration, but supports another agreement - Could alter or add to the main agreement - Courts usually don’t allow unless one can prove it exists as a separate and complete agreement with its own consideration o Subsequent Agreement: An agreement made after a written agreement that alters or cancels the written agreement Reduction to Writing  Negotiations: o Issue of when a contract agreed to orally becomes enforceable if it is never reduced to writing o Issue of interim enforceability between time of oral agreement and being put into writing Sale of Goods Act  Writing Requirement: o Certain transactions over a certain value if not in writing are unenforceable (Sale of Goods Act)  Methods of enforcement (without written requirement) o Payment of a deposit o Acceptance of delivery of part of the goods o Giving of something “in earnest” (such as a trade in) Privacy Legislation  Federal law – Personal Information Protection and Electronic Documents Act (PIPEDA) requires business and personal accountability for the use and collection of personal information – in contract and otherwise  PIPEDA applies in the absence of equivalent provincial legislation PIPEDA Compliance Requirements 1. Accountability – Someone must have delegated personal responsibility at each business. 2. Identifying Purposes – Reason for collection shall be documented before collection and use of info. 3. Consent – Use of Personal Info. (P.I.) requires consent of individuals concerned. 4. Limited to Necessary Info. – Fair and lawful. 5. Limited Use, Disclosure and Retention 6. Accuracy – Accurate, complete and up-to-date. 7. Safeguards Required – Appropriate to sensitivity. 8. Openness – about P.I. policies and practices. 9. Individual Access – Individuals may request disclosure of their P.I. and may challenge its accuracy and completeness; having it amended where appropriate. 10. Challenging Compliance – May challenge parties responsible under the legislation where there is non-compliance with the requirements of the Act. Chapter 11: Failure to Create an Enforceable Contract Introduction  Essential elements (offer, acceptance, intention, consideration, capacity) may all exist, but contract may still not be enforceable  Four situations which may render a contract unenforceable o Mistake, misrepresentation, undue influence, duress  Also determines who bears the brunt of a given loss Mistake  Mistake: A state of affairs in which a party (or both parties) has formed an erroneous opinion as to identity of subject matter or existence of the subject matter, or of some other important term  2 types of mistakes o Mistake of Law o Mistake of Fact Mistake of Law Mistake of Law – presumed to know the law; usually no relief provided - Exception: if statute provided for recovery Mistake of Fact Mistake of Fact: Mistake as to the existence of the subject matter of the contract or the identity of a party (i.e. dealing with someone else)  Court may provide relief if: o Mistake as to subject matter of contract - General rule contract is void o Mistake as to the identity of the Party - Depends if the identity of the person is an essential element to the agreement - if yes →may not be enforceable - if no → it will be enforceable Non Est Factum Non Est Factum: A defense that may allow illiterate or infirm persons to avoid liability on a written agreement if they can establish that they were not aware of the true nature of the document, and were not careless in execution - narrow form of defense - applies only to the type of agreement being signed not to the terms of the agreement Unilateral and Mutual Mistake  Unilateral Mistake: A mistake made by one party of the agreement  Mutual Mistake: A mistake where both parties have made mistaken assumptions as to the subject matter of the agreement o Can be same mistake or different mistake o Mistake as to the subject matter of contract, then the contract is unenforceable o Courts will not enforce agreements when the other party is aware of the mistake being made  Rectification: The cor
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