LAW ch 1-4.docx

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Murray Horowitz

Chapter One: Fundamental Rights • Businesses are becoming increasingly sophisticated in using law suits to harm competitors • Ensure consumer-protection laws fairness in most transactions Analyzing Court Decisions • Brief—a summary of a case (for use at trial) including evidence and law, or a summary of a court decision The Constitution of Canada • Four colonies of British North America—Upper Canada, Lower Canada, Nova Scotia and New Brunswick outlined the division of power in 1867 • Sections 91 and 92 of the BNAAct divide legislative powers between the federal and provincial governments and list specific areas of power • Section 92 gives the provinces exclusive jurisdiction over “all matters of a merely local or private nature in the province” • Guiding principle: whether it is a matter of national concern, crossing provincial boundaries or if it’s purely local • In 1982, the BNAAct—the constitution—was patriated , brought to Canada • Power to make changes rests with the governments of Canada • The Charter of Rights and Freedoms was incorporated in the constitution • Civil rights—rights of citizens (includes areas of law such as contracts, torts and so on) • Business can challenge a law as being ultra vires The Canadian Charter of Rights and Freedoms • The Canadian Charter of Rights and Freedoms—is a piece of legislation that sets out the fundamental rights of all Canadians • Constitution can only be altered according to a complex formula that involves agreement among the federal and provincial governments • Charlottetown Accord and Meech Lake Accord failed as it is difficult to amend • Companies used the charter to attack the legislation that affects their business • The charter applies primarily to laws but not to all situations where an individual’s rights are violated • The courts have moved toward requiring a government to pass legislation that is in conformity with the Charter Lawsuits for Protected Rights Used to Change Laws • One of the most controversial acts by the Supreme Court of Canada has been its pronouncements that it has the power to add protected rights to the charter by analogy to those already listed in it • Even if a protected right is violated, the court can uphold the law if it feels that the violation or limitation is reasonable in a free and democratic society • A clause in the charter permits governments to enact laws that can violate rights and freedoms called the notwithstanding or override clause • A law passed under the section 33 expires automatically after five years Human Rights Legislation • The Charter applies to the actions of government in making the administering laws • Human rights legislation is aimed at acts of discrimination in three main areas: o Employment o Housing o Provision of goods and services • Constitution—states which government (federal or provincial) can make laws • The Canadian Charter of Rights and Freedoms—tells whether the laws passed by all governments, federal and provincial, comply with the certain specific principles • Human rights acts—deal with discrimination by persons in employment, housing and provision of goods and services • The Canadian Charter of Rights and Freedoms applies strictly to matters in section 91 of the constitution, which covers the specifically named areas as well as government agencies and private businesses whose activities cross provincial borders • Discrimination—the act of treating someone differently on grounds that are prohibited by human rights legislation • Section 3 of the Canadian Human Rights Act sets out the grounds for discrimination • Systemic discrimination—is discrimination that is the consequence of a policy whether the effect of discrimination was intended or not • Harassment is any unwanted physical or verbal conduct that offends or humiliates the individual at whom it is directed • Human rights legislation recognizes the flirtation is not abnormal, and that it should not be prohibited for people of equal status in their employment situations • Being proactive in preventing harassment: o Clarity: will not be tolerated o No-harassment policy o Employee understands the policy o Inform responsibility o Investigate and correct harassment problems • Employer has a defence of due diligence (reasonable carefulness)—a defence to certain charges by doing everything reasonable to prevent the problem leading to legal liability • Undue hardship—excessive financial loss to a point where the business’ survivability is at risk • Duty to provide an environment that avoids discrimination (disability): o Accessible premises o Adaptive technology o Support services o Job restructuring o Modified work hours • Several exceptions in Human Rights Act that permit discrimination under very restricted circumstances • Bona fide occupational requirement (BFOR)—genuine requirement for a job; a BFOR is a defence that excuses discrimination on a prohibited ground when it is done in good faith and for a legitimate business reason • Legislation makes exceptions for affirmative action and other special programs; done in an effort to relieve the effect of discrimination on minority groups • Remedies: o Stop a discriminating practice o Adopt a special program o Compensation to the complainant o Reinstate a complainant into employment • Release—a written or oral statement freeing another party from an existing duty • Claim—a written statement or basic summary of a plaintiff’s allegations against a defendant in a lawsuit • A confidentiality clause agrees not to reveal details of the settlement • Confidentiality—obligation not to disclose any information without consent Summary • Five concepts: o Application: charter applies to governments; human rights legislation protects individuals o Protected Rights: only some rights protected o Reasonable Limitations: a law can be passed in violation of this protected right if it is reasonable to limit the right o Specific Charter Exemptions: laws can be passed even though they are in violation of protected rights o Legislative Exemption: “notwithstanding clause” permits a government to a pass a law which states that the law is valid in spite of the Charter Chapter Two: The Canadian Court System Law and the Legal System • Laws are rules of conduct that are enforced by government-sanctioned agencies • Private or civil laws—resolve disputes between individuals (or businesses) • Criminal or regulatory law—resolve disputes between society generally and certain individuals (or businesses) • Constitutional or administrative law—resolve disputes between individuals and governments or between governments and governments when governments are acting in their capacities as lawmakers • Civil law attempts to obtain compensation for the wronged party, criminal or regulatory law attempts to extract punishment • Constitutional or administrative law nullifies certain actions of government if certain rules are not followed • Civil law speaks of suing and liability; involves plaintiff and defendant • Criminal and regulatory law speak of charges or offences, involves prosecutor and the accused The Common Law System • Jude-made law—legal principles enunciated and embodied in judicial decisions that are derived from the application of particular areas of law to the facts of individual cases. • Black-letter-law approach refers to the strict application of laws • Courts of equity devised remedies to soften the harsh results of some of the common- law principles—can apply both common law and equitable law • Precedent—the principle in the common law system which requires judges to follow a decision made in a higher court in the same jurisdiction • Stare decisis—when a court has once laid down a principle of law as applicable to a set of facts, it will adhere to that principle and apply it to all future cases where facts are substantially the same • Common law was created by judges sometimes gathered as statutes • Statues—summarized or codified short-code formats of common law, comprising acts or legislation passed by parliament • Laws are not followed because they are unconstitutional or ultra vires • Government made laws have flexibility for judicial interpretation of the legislation • Quebec follows a civil-code system rather than a common law approach • A judge cannot create a new criminal offence—only governments can • Effectiveness of the constitution is a separation of powers between the government and the courts with an independent judiciary. The court can declare whether laws passed by the government are in accordance with the constitution • Citizens have a right to be brought before a judge (habeas corpus – “bring the body”) The Canadian Court System • Litigants are trying to experiment with private mediation known as ADR (alternative dispute resolution) • Two courts in Canada: appeal and trial • Trial level court has a judge, jury, lawyers and witnesses present • Appeal court normally hears based on the transcripts of the trial • Only a supreme court of Canada decision is binding throughout Canada • Lawyer—one who uses the law • Barrister—lawyers who represent clients in court • Solicitor—lawyers who deal with commercial and other legal matters that do not involve going to court • Many civil juries have been abolished however where they do exist they are comprised of 6 individuals (12 for criminal offence) • Juries decide issues of fact not law • The statement of claim and defence are referred to as the pleadings—they are very brief outlines of each party’s case • Plaintiff—person who starts the lawsuit • Parties exchange documents relevant to the case for review • Affidavit—document sworn under oath, used as evidence in a judicial proceeding (as opposed to questioning in person, document discloses testimony) • Examination for discovery—process in which each side may ask their opponent relevant questions pertaining to the case; usually leads to settlement • A pretrial conference occurs if no settlement is forthcoming, a counsel will asses the case • Trial process includes: fact finding and then application of law to those facts. Judge will then determine • Hearsay statements—statement said by someone else not by witness present in courtroom—exclusion based on form • Under business records exception to the hearsay rule, if the business can prove that the records were made in its ordinary course of business, then the records are admissible without having to question all staff • If the plaintiff can meet the standard of proof, he/she will win • PleadingsExchange of Relevant Documentsexamination for discoverypre-trial conferencetrialJudgementAppeal • Electronically stored docum
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