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LAW 534 (50)
Gil Lan (27)
Chapter 4

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Law and Business
LAW 534
Gil Lan

C HAPTER 4: DUE DILIGENCE The Reasonable Person Pg. 4 -2 Dickson J. – due diligence defense centered on what the reasonable person would have done Smith J.A. – negligence consists of an unreasonable failure to know the facts that make an offence Principle of defense that all reasonable care was taken Laidlaw J.A. – Person of normal intelligence who makes prudence a guide to his conduct Fitzpatrick J. – Reasonable care involves high standard of awareness, decisive, prompt and continuing action. Key to due diligence is the existence of a proper system, that must be deployed in a timely fashion with appropriate staffing Lines between regulatory offences and true criminal offences are blurring Justices Weiler and Gillese – label attached to the offence no longer determinative. Penalites, the values underlying the offence and whether mens rea is required must be considered Cory J. (Licensing Requirement) – unnecessary for court to establish accused intended or was aware of consequence. Minimum standard of well-being with basic knowledge of standard of care obviate that requirement Res Ipsa Loquitur and the Common Law Flaw Pg. 4-7 Courts assume that if the defendant is unable to present some evidence tat explain why a regulatory failure occurred, negligence is presumed and liability follows Res ipsa loquitur has the effect of forcing defendant to provide an explanation rather than being able to simply move for a non-suit  Logically flawed because it fails to consider appropriate periods and benchmarks required by basic risk analysis Prosecution must prove the violation itself beyond a reasonable doubt, but dault is not in issue. Representative Heuristic reflects the tendency of people to jump to conclusion without considering a statistical baseline Inverse Fallacy refers to the tendency to treat the probability of a hypothesis given the as the as, or close to, the probability of the evidence given the hypothesis Goudge J.A – Doesn’t think law requires accused to prove precisely how discharge came about. May be able to narrow the range of preventative steps. Accused must show that it took all reasonable care to avoid foreseeable case C HAPTER 4: DUE D ILIGENCE Second Restatement – harm suffered by the plaintiff is cause by the defendant’s negligence when the event is of a kind that ordinary does not occur in the absence of negligence Third Restatement – inferred that defendant has been negligent with the accident causing harm is a type of accident that ordinarily happens because of the negligence of the class of actors of which the defendant is the relevant number  Track records. Reflects likelihood of harm balanced against the gravity of the adverse effect Hindsight Bias – People overstate their own ability to have predicted the past and believe that other should have been able to predict events better than was possible  Influence judgment of legal liability: overestimate the defendant’s ability to have foreseen the event or to have taken preventative measures  Court of Appeal avoids hindsight bias by applying the probability analysis Normality Bias – people react more strongly to bad outcomes that result from abnormal circumstances than to otherwise identical outcomes from ordinary circumstances Regulatory Offences: A Paradoxical Tale of Two Levels of Risk Analysis Risk assessment is central to codified standards that the prosecution must prove were violated. (Risk Assessment) When focus shifts to due diligence, issue relates to fault and punishment (Risk Management) Violation of the Actus Reus of a regulatory statue may be proven by the prosecution, not determinative without the consideration of due diligence Dickson J. – Proof of statutory breach causative of damages, may be evidence of negligence PL = OC type of basic risk management  Probability multiplied by the loss is greater than the object times the cost, liability ensues; if probability times the loss is less than the object times cost, the conduct is blameless Linden J. – formulas are somewhat misleading because evaluation of risk is not an exact science but rather betrays the subjective human preference of the judicial officer Steps Taken to Prevent the Particular Event Pg. 4 – 20 Justice Weiler – employer must show it acted reasonably regarding prohibited act, not broad notion of reasonableness Weiler J test – Has sufficient due diligence been taken to avoid the TYPE or CATEGORY of event that has happened? C HAPTER 4: DUE DILIGENCE Justice Hill – rejecting a defense of due diligence, significant evidence of general due diligence, insufficient evidence of specific due diligence Due diligence must relate to the type of problem in issue BC Supreme Court – Law requires respondent to prove due diligence in regard to errors subject of the charges, not sufficient to point to a past history of accuracy Due diligence does not require perfection, must be designed for the type of problem in issue Mistake of Fact Pg. 4 – 24 Dickson J. – defense will be available if the accused reasonable believed in a mistaken set of facts, which if true would render the act innocent The belief must be reasonable  S. 273.2 of the Code codifies an air of reality test Lawyer’s advice is not a defense and does not fall within due diligence Court of Appeal – reliance on a lawyer’s advice is a mistake of law that affords no defense to the commission of an offence Policy reasons to justify lawyer’s advice does not constitute as due diligence: 1. Encourages counsel to provide careful and correct legal advice 2. If false legal advice was a defense, victims of offences would be deprived of remedy. Would have no cause of action 3. Reliance on false legal advice should be a mitigating factor at the sentencing stage Officially Induced Error Pg. 4 – 25 Accused must show six factors: 1. Error in law or mixed law and fact was made 2. Person who committed act considered legal consequences of their actions 3. Advice obtained cam from an appropriate official 4. Advi
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