Management and Organizational Studies 2275A/B Lecture Notes.pdf

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Department
Management and Organizational Studies
Course
Management and Organizational Studies 2275A/B
Professor
Prof
Semester
Fall

Description
Lecture One 9/18/2012 5:36:00 AM What is law? The set of rules and principles guiding conduct in society ▯ But what makes this different than rules? o Breaking the law can sacrifice their civil liberties and freedom o **The connection with the government is what makes law different than any other rule ▯ Law is set by the state/government A set of rules proposed by the state that are enforced ▯ Enforced o Remember the Henry Morgan abortion case ▯ Against the law, but in front of a jury of his peers he was found not guilty, even after admitting his guilt o The store owners case ▯ Closing on Sundays, discriminatory and unfair ▯ But the SCC crushed him with financial fines, so much so that he was bankrupt by the end of it ▯ The law clearly changes over time, as society values change the laws change to keep up with these changing values o Sometimes too quickly, sometimes too slowly o What the law is, and what the law should be are two different things ▯ Incredible debate happens in the limbo between these two ideas Law theories Legal positivism ▯ A law is a law as long as it can be enforced o Syrians killing their people o Anti abortion in the States Natural Law ▯ Human law is just the approximation of the natural law ▯ The moral code is out there, and we try and find it regardless if the human made laws enforce it Social Utilitarism ▯ Measures of the law should be based on social utility ▯ Laws have to serve the interest of society ▯ “greatest  happiness  for  the  greatest  number  of  people” Legal Realists ▯ The law is arbitrary ▯ Subject to human weakness and frailty ▯ (What the judge had for breakfast) How to understand the law ▯ Try and understand the policy behind the law o Why was this law enacted? What was the context ▯ Try and think about the end-game o In the end there will be a result o Its nice to talk about the debate and the different interests ▯ But at the end of the day, the decision has its outcomes, and we should focus on that ▯ It  isn’t  a  perfect  system Where does the law come from ▯ Constitution o Trumps all other laws ▯ Any law that is in conflict with the constitution is invalid and goes away o Made of many different parts ▯ Written (Constitution act 1867, Charter of rights and Freedoms) ▯ Oral  (British  tradition,  “The  way  things  have  been   done”) ▯ International Treaties o The government has to abide by our constitutional law o The government is subject to the law, and you can sue the government against the constitution ▯ Other countries the country is above the law, and they can do anything they please o Division of power ▯ Divides the government into two divisions that can create laws on certain subjects ▯ Federal ▯ Currency, trade, immigration, criminal ▯ Provincial ▯ Healthcare, education ▯ Paramountcy ▯ The Federal government law is supreme when both laws (provincial and federal) apply o Charter of Rights and Freedoms (1982) ▯ Passed to make Canada a leader in civil liberties ▯ Rights about discrimination, freedom of speech, immigration etc. etc. ▯ Any law or government action that is inconsistent of this charter, fails ▯ These freedoms and rights apply to not only citizens, but everyone in Canada, landed immigrants and the like ▯ However, the Charter effects the government, and its actions ▯ Private citizens are governed by the human rights code on basis of these same principles ▯ ▯ Statutes/Legislation o Passed in the house of commons o With a majority vote, the law can become an act (after going through the sober thought of the senate) o We have to looks at these laws in context ▯ Before and after ▯ Where the law is going, where has it been o It  isn’t  a  snapshot,  it’s  a  video  tape ▯ The law tends to change significantly at times as opposed to gradual shifts over time ▯ As different governments come into power and enact their policy objectives ▯ Common Law/ Case Law o Decisions made by judges today set precedent ▯ Precedent ▯ Like cases will be treated similarly to ensure that the law is fair in its decision ▯ Uniformity ▯ Continuity ▯ Fairness ▯ Predictability ▯ So that lawyers can predict their outcomes, and plan for the best outcomes possible ▯ Efficient ▯ We  don’t  have  to  reinvent  the  law,  same   case same facts then same result ▯ The facts are never the same however ▯ The judges determine if the facts are similar enough to follow the same precedent Lecture Two 9/18/2012 5:36:00 AM Litigation ▯ Happens at the provincial trial court level ▯ Trail courts o Hear evidence, testimony ▯ Appeal courts o Only rule on matters of law, not matters of fact o Cannot appeal a finding of fact, simply the decision is made ▯ Civil Procedure o Substantive laws define your rights and obligations o Procedural laws are the rulebook on how to access the law, how to proceed in the justice system ▯ Jurisdiction ▯ Where should this case be heard, which court of law ▯ Pleadings ▯ Filing a statement of claim with the court and physically served on the defendant ▯ A statement of defense is the defendants rebuttal to this claim ▯ Counterclaim: The defendant is actually owed money by the plaintiff ▯ Discovery ▯ Examining witnesses and evidence ▯ Thousands of pages of testimony ▯ Done so that in trial, lawyers can just draw attention to the problems in statements and evidence ▯ Trial ▯ Start with the pre-trail motions ▯ A day before trial, the judge and lawyers from both sides argue their pretreial motions ▯ Follows a very rigid procedure ▯ Evidence, testimony (experts, witnesses, physical evidence) then create an argument around the rules that should be applied to the evidence given in that case ▯ Draws attention to previous cases in order to apply precedence to the current case ▯ Finally, both parties have their closing arguments, and the judge rules ▯ Enforcement ▯ You win a piece of paper which says the defendant owes you money plus cost plus interest ▯ “cant  get  blood  from  a  stone” Alternatives to litigation ▯ Sums of money under $20,000 are typically not worth fighting in trial o Lawyer  costs  and  court  costs  take  up  more  than  this,  you’ll   LOSE money ▯ Monetary costs of litigation are ridiculous, it is about the money not the principle ▯ Non monetary costs: o Closure o Broken Relationships o Daily grind of litigation ▯ ADR o Negotiation ▯ Voluntary talks in order to come to an agreement o Mediation ▯ Third party who specializes in bringing people together for talks o Arbitration ▯ Third party makes a decision on the case ▯ Much less expensive ▯ Much faster ▯ Identify the risk ▯ Evaluate the risk o What’s  the  risk  of  harm? o What is the harm caused if the risk occurs? o Steps taken depend on cost being high or low ▯ Plan o Assume the risk, and make a plan accordingly o Avoid the risk o Minimize the risk o Shift the risk ▯ Insurance: ▯ A contract between the insurer and the insured ▯ The insurer will pay if the risk occurs ▯ Cannot insure unless you have insurable interests ▯ 9/18/2012 5:36:00 AM Strategic Planning is crucial to success ▯ Strategic thinking, long term, short term and medium term planning ▯ The skills and planning that we bring to business can be brought to our lives o “Where  do  I  want  to  go,  and  how  do  I  want  to  get  there?” o Homework: ▯ Take 15 minutes and plan out your life Contracts Continued: In order for a contract to be made, what needs to happen? ▯ Consensus o An offer must be made, and there must be an acceptance of that offer by the other party ▯ Consideration o Each party needs to be giving a form of consideration (a promise) in order for a contract to be legally binding ▯ Intention o An intention to be legally bound, family members typically do not want to be legally bound But what else needs to happen? Capacity: ▯ Either age or the mental competence/incompetence ▯ Age: o You cannot have a contract with a minor (typically 18 years old, but set by the province) o However, ▯ If a minor is entering a contract for a necessary, (food, water, shelter) then you can enter a contract with them ▯ But only if they need this item, if it is unnecessary it is not needed for life or to survive ▯ Mental Competence: o Insanity o Mental capabilities o Inebriated ▯ Two part process ▯ You must have been really drunk or under the influence in order for the contract to not be legal ▯ As well, the other person had to know that you were drunk Legality ▯ Public Policy o The courts will not enforce a contract that is contrary to public policy ▯ Whether this is fair and legal in the grand scheme of the law o When conflicting legitimate interests are involved, the law gets messy ▯ Protection of vulnerable people o If the courts can determine that one party had unequal bargaining power and used this to exert leverage onto the lesser party the courts will sometimes void a contract Duress: ▯ One party can claim that they were under duress, and therefore be exploited from the contract o Duress: ▯ Meaning the person was forced into the contract because they have no real practical choice but to agree ▯ Gun to head, economic duress (forced because the business is in a bad spot) Undue Influence: o One person has a position in a special relationship that puts one person, in a position of authority, taking advantage of the other person ▯ Unconscionability: o Governed by provincial law o Two factors required: ▯ Substantial inequality of the contract ▯ Homeless people, elderly, young, disadvantaged etc. ▯ Unfair terms ▯ Extortion There are three basic types of contracts: ▯ Enforceable/Valid Contracts ▯ Void Contract o The contract was never legal or never existed in the first place ▯ Voidable Contracts o Contracts with minors typically take this route ▯ The contract is enforceable, but one party can escape this contract by claiming that they are not bound ▯ Unenforceable/Valid o Statute of frauds ▯ The statute has specific rules determining what makes a contract enforceable ▯ The difference here is that the contract is not void, it still exists but it is not enforceable in the courts ▯ Cannot dispute what happened Misrepresentation ▯ Misrepresentation only applies to items on a contract that are material ▯ If the item is in fact material, then one of two things happens o If the item in question is a term: ▯ Can sue for damages, or be granted recision o If the item in question is not a term ▯ Then your only option is recision ▯ (details about machines for example would not be a term) ▯ Tort law o Was the misrepresentation made innocently or fraudulently ▯ Innocently: ▯ Cannot sue under tort laws ▯ Fraudulently: ▯ The person knowingly lied to you, then you can sue for damages under tort laws ▯ Tort law damages can be used in addition to recision Mistake: ▯ Mistakes need to be mutual, over an essential term of the contract in order for the courts to enforce mistake ▯ If one person is mistaken, the courts will act reasonably o If one person is expecting more money, then if the money received is reasonable, the courts will not grant mistake ▯ Mistake is either a mistake in the terms, or where there was a mistake in the assumptions that underlie the contract ▯ Or, where both parties acted reasonably Remedies: ▯ Equitable Remedies o Injunctions ▯ Forcing a party to do something, ex. Cannot sell in the states o Specific performance ▯ An order to perform a specific task that cannot be awarded through monetary gains o Quantum Meruit ▯ A court order to perform a reasonable task o Recision ▯ Returning the parties back to their original states ▯ Principles of Equity o No damages ▯ Only used in cases where damages would not suffice or would not be a remedy o Act Immediately o No prejudice ▯ No one is harmed by this o Clean Hands ▯ You come to court ready to prove that you acted morally o Discretionary ▯ You cannot demand anything from equitable solutions, it is up to the judge whether or not you deserve it Privity to a contract ▯ Only a party that is included in the contract can have rights and obligations to that contract o One person cannot sue if they are not included in the contract Damages for breach of contract ▯ Damages can only be accounted if they are reasonably foreseeable from the breach of the contract ▯ Expectation damages o Damages that one can reasonably expect from the breach of contract Termination of Contracts: ▯ Performance o The contract is termination by completing the contract ▯ Agreement o Term in the contract when the contract will end o A mechanism for when the contract ends (a way of figuring out when the contract ends) o Enter into a new agreement (Novation) ▯ Frustration o Where honouring the contract becomes impossible to complete o When two parties (at  no  fault  of  their’s) cannot complete it (new laws for example) o Something not specified in the original contract ▯ Breach (condition) o Conditions are essences of the contract o Warranties are qualities of the contract o You can still sue for damages Lecture notes 9/18/2012 5:36:00 AM For  the  record…  We  started  out  this  class  by  talking  about  raping  little  boys… Tort Law ▯ A wealth redistribution system in which we take monetary values from wrongdoers and provide compensation to those victims involved ▯ Also a deterrent for other people to not commit tort law o Tort law is derived from case law/common law o First two torts were trespass to the person, and trespass to the property ▯ Subdivided into two separate subcategories ▯ Intentional Tort ▯ Requires that the defendant intended to cause harm ▯ If it was accidental, then this cannot be proved ▯ Negligent Tort ▯ A reasonable person would have known this would cause harm ▯ The defendant ought to know better to not cause the plantiff harm ▯ Bigger part of tort law Tort law is fault based o This means that you must prove that the other person was at fault o Without fault, tort law does not assist anyone ▯ No fault examples: ▯ Automobile Industry ▯ Used to be fault based, but then switched into a no-fault base ▯ This was because insurance companies were largely more powerful than the injured victims ▯ Victims cannot claim future income, it is now based on current income ▯ Workers Compensation ▯ Again, not fault based ▯ The government just spits out money based on a formula ▯ If we used the fault based system, many employees  wouldn’t  get  the  compensation   because it could be their own fault o The effect of tort law has distributed the costs of tort lawsuits over the course of the business ▯ This in turn is redistributed to us, through higher prices ▯ Essentially we all share the cost Tort Law Cont. ▯ Tort law all comes from the cases o Burden of proof: ▯ In tort law, the plaintiff has the burden of proof ▯ This means that the plantiff has to prove (over 50%) that they have been wronged. ▯ The defendant does not need to prove anything is the plaintiff has not proved their case o Damages: ▯ You cannot sue in tort law unless you can prove damages ▯ Exception: ▯ Trespassing ▯ “Per  se”  or  without  the  need  to  prove   damages The Negligence Tort Law ▯ In order to prove a negligence case, the following must be proven for a reasonable person to forsee: o Duty of Care ▯ You do not always owe a duty of care ▯ For  example,  if  you  aren’t  on  duty  but  are  a  lifeguard,   you do not need to save someone from drowning ▯ But if you perform a rescue, you have to follow through in a reasonable manner ▯ You owe a duty of care to people that you can reasonably see them coming into harm ▯ “would  a  reasonable  person  see  this” ▯ Go back to the cases, always go back to the cases o Standard of Care ▯ A defendant would have to have acted reasonable to get away from this one ▯ Not the defendant, what a reasonable person would have done in the circumstances ▯ A reasonable person can be a reasonable brain surgeon for example o Causation ▯ You have to rule out every other cause for the harm that has occurred ▯ Very difficult to prove causation ▯ Many cases fail at this stage ▯ “But  for”  test ▯ But for me doing something, she would have been fine ▯ Two limitations: ▯ Damages must be of a type that are reasonably foreseeable ▯ Remoteness o Meaning, that the damages must be fairly direct o You  aren’t  negligent  because  you  are  wrong,  you  are   negligent  because  you  didn’t  do what a reasonable person would do ▯ Because you acted unreasonable ▯ Careless ▯ Reckless o Not if you are careful and diligent however Types of Negligence: ▯ Product Liability o Donaghue v. Stevenson ▯ The first time that a manufacturer owed a duty of care to their consumer ▯ A manufacturer owes a duty of care ▯ Occupiers Liability o If you occupy land you owe them a duty of care ▯ Tie down dogs, fence around a pool ▯ If you make money by letting them on your land, you REALLY owe a duty of care ▯ Professional Liability/Negligence o Detrimental reliance o Because of my professional ability, you relied on my opinion and it caused you harm ▯ Alcohol Related Cases o Drinking and driving ▯ Used to be okay, now it is completely unacceptable o A commercial host is liable for the injuries suffered because of someone who was drinking at that place of business Property Law 9/18/2012 5:36:00 AM `1Pages  that  we  don’t  have  to  read: ▯ 471-475 ▯ 484-492 Property Law ▯ We turn a corner in the sense of the law: o Before now, it is between two people, (you and me) ▯ Tort, Contract etc. ▯ Property opens the door to a set of legal relationships that is much broader than the types of law thus far ▯ We have rights to property, whether we own them or not o The person that owns them, has the most rights to the property o Everyone else does have rights to the same property, but very limited Ex) ▯ House ▯ Bank has rights on the mortgage ▯ City has rights, zoning laws ▯ Neighbors have the right to no nuisance ▯ Canada post has the right to come on the property to deliver mail ▯ London Hydro has the right to come and check their hydroelectric meter o To talk meaningfully about property is to talk about rights to said property, and who has which rights ▯ “The  relationship  between  people  with  regards  to  the   stuff” ▯ Intensely political ▯ Changes with the times, Obama vs. Romney for example Two types of property in the law: ▯ Real o Land, buildings and anything attached to them ▯ The more permanently something is attached, the more likely it is to be real property ▯ If it would damage the property, it is probably real property ▯ Possessory Interests ▯ Fee Simple ▯ Commonly known as ownership ▯ Best possessory interest you can have in real property o However, government may be able to expropriate your land ▯ Prior  land  claims,  natives… ▯ Leasehold ▯ Contractual right to posses the land or building ▯ Life Estate ▯ An interest that you only have when you are alive ▯ Non-Possesion ▯ Easements ▯ Gives people the right to use a piece of property o Shared driveway ▯ Rights of way ▯ Union gas can work on underground pipelines ▯ London Hydro ▯ Licenses ▯ “I  give  you  the  right  to  come  onto  my  land   and  collect  the  apples  from  my  orchard” ▯ Restrictive Covenants ▯ Run with the land ▯ Not being able to do certain things to the land o Such as you cannot have a swimming pool, satellite dish larger than x ▯ Apply against every person who owns the land o Attached to the title o Have to be prohibitive in nature, cannot make someone do something ▯ Condominiums ▯ Fee simple ▯ You own the property that is your apartment ▯ Exclusive use ▯ Shared use of the common areas ▯ Cooperatives ▯ No fee simple to anything ▯ The right to exclusive use of your unit, but you do not own it o Mortgages ▯ Property interest in real property ▯ Gives the lender a right in that property ▯ Lender gives the loan, the mortgagee secures the debt with a security (house) ▯ Power of sale ▯ Mortgager gains the house, and extinguishes the debt by sale of the house ▯ Anyone can give a mortgage\ ▯ Regulate mortgage brokerage because it is a fraud riddled industry o Residential landlord and tenant ▯ Residential is different than commercial ▯ Why? ▯ Because the social issues (homelessness for example) of residential property and tenant law is a serious concern ▯ Commercial tendencies do not have these same public concerns, so it is reliant on the terms of the lease (governed by) ▯ Residential ▯ Possessory right, leasehold in particular for the tenant ▯ In the landlord, the right to collect rent is personal property ▯ Personal o Everything else ▯ Tangible ▯ Lost and Found ▯ Original owner has the best claim ▯ The person who finds the personal property has the next best claim on that personal property o When you find something on personal property, it is the owners ▯ Quasi Personal property o Depends on the situation ▯ Public Portion ▯ Lost and found applies ▯ Private portion ▯ Offices, custodian closets
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