BUS 393 Chapter Notes -Alternative Dispute Resolution, Sunset Provision, Closing Argument
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21 Nov 2012
School
Department
Course
Professor
2 types of law:
1) Procedural
-form/organization of legal system
-method of conducting trials
-mechanisms necessary to enforce substantive law
2) Substantive
-creates/defines/regulates our rights in society
-must be enforceable
-created by government (federal, provincial, municipal), courts (common law, this is 90% of our laws),
and administrative tribunals
Public Law
-the law that governs the relatioonhsip b/w persons +government
Private Law
-the law that governs the relationship b/w persons
-includes contract law, company law, negligence, employment law, agency, wills&estates
Criminal Law
-purpose is punishment
-commenced by government
-case must be proven by prosecutor
-proof: beyond a reasonable doubt
-defendant decides whether to have a jury
Civil Law
-purpose is compensation
-most typical remedy is $$$
-is commenced by plaintiff (other party is defendant)
-plaintiff has responsibility to prove case
-proof: balance of probabilities (51% rule)
-defendant decides whether to have a jury, majority rules
Charter of Rights and Freedoms
-protects fundamental freedoms, legal rights, equality rights, democratic rights, language rights, mobility
rights
-protects people from the government
-can only be amended via a majority vote (very difficult)
Canadian Court System Hierarchy:
Supreme court of Canada>provincial>court of appeal>BC Supreme Court>BC Provincial Courts(trial
courts)
Alternative Dispute Resolution
-arbitration: bring in expert 3rd part, final decision is binding
-negotiation: parties involved talk it out
-mediation: a mediator is brought in to facilitate the discussion
-Conciliation: ???
-adjudication: you goin to court son
Advantages of ADR:
-less costly than going to court
-faster than court
-preserve business relationships
-confidentiality
-more flexible
Systems of Law
1) Common Law System 12th century UK
2) Equity
3) Civil Law System based on roman civil code, not adaptive, open to interpretation in new
cases, only used in Quebec
Theory of Precedent
-common law system is based on this system
-judges MUST look to past cases with similar or identical facts from a higher or equal court, from the
jurisdiction, to decide new cases
-STARE DECISIS
>>common law system is more predictable & consistent than the civil law system
Legal Reasoning Format
-judgements contain 5 key elements :
>Facts (what are the)
>Issues (legal)
>Law (case law, statutes, academic sources)
>Application (how should the law be applied, closing argument)
>Conclusion (answer to the legal issue)
Equity
-13th century UK
-based on church law, principles of morals, ethics, conscience, fairness
-1875 courts of equity merged with common law system BUT law remains distinct
-rules of equity prevail over common law