Foundations of Business Law in Canada & Resolving Disputes

Flashcards covering key vocabulary from lecture notes on the foundations of business law in Canada, legal risk management, the Canadian legal system, sources of law, categories of law, business ethics, and methods for resolving disputes and navigating Canada's court system.

Legal Risk Management

The process of planning for and reducing, or even preventing, many business losses by anticipating what can go wrong and developing strategies.

Legal Risk Management Plan

A proactive plan that allows businesses to take action to prevent or reduce loss by identifying and addressing associated legal risks across all activities.

Risk Avoidance

A strategy for managing legal risk that involves a decision to stop a particular business activity because the risk is too great.

Risk Transference

A strategy for managing legal risk that involves transferring the risk to another party, most commonly by contract or through the acquisition of insurance.

Risk Reduction

A strategy for managing legal risk that involves putting practices in place to lower the probability and/or severity of identified risks.

Risk Retention

A strategy for managing legal risk involving a decision to simply accept a risk, especially when the impact of the risk is lower than the cost of avoiding or transferring it.

Law

The rules that are established and enforced by society to regulate the conduct of its members, aimed at creating a stable environment and safeguarding individuals and organizations.

Rule of Law

A fundamental legal principle that no one is above the law, preventing the arbitrary use of government power.

Canadian Constitution

The foundation upon which government is granted its authority to govern in Canada.

Constitution Act, 1867

The act that created a Federal System of Government in Canada and established its three branches of government.

Legislative Branch

The branch of government responsible for introducing, voting on, and passing legislation (statutes).

Executive Branch

The branch of government responsible for administering the day-to-day business of government.

Judicial Branch

The branch of government responsible for adjudicating legal matters and disputes.

Constitutional Law

A body of written and unwritten laws that set out how Canada will be governed, including the distribution of powers between the Federal Government and the Provinces.

Statute Law

Laws (also called legislation, acts, or statutes) passed by the federal or provincial government (legislative bodies).

Common Law / Case Law

Laws made by judges through court decisions, usually based on the previous decisions of other judges, known as precedent.

Canadian Charter of Rights and Freedoms

Adopted as part of the Constitution Act, 1982, it protects certain fundamental rights and freedoms, subject to reasonable limits.

Section 1 of the Charter (Reasonable Limits)

The provision that states Charter Rights are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Royal Assent

A largely symbolic process through which the English sovereign (the Crown) or his or her representative formally approves a new law passed by a Canadian Parliament.

Regulation

Detailed rules made under the authority of a statute (a law) to implement or administer the statute, or to specify exemptions.

Mischief Rule

A rule of statutory interpretation where judges examine the problem (or mischief) a statute was intended to correct and apply that corrective rationale to the issue.

Precedent

Decisions made by previous courts in similar circumstances, which form the basis for future judicial rulings in common law systems.

Stare Decisis

The principle meaning that decisions made by higher courts are binding on lower courts in the same jurisdiction and in similar situations.

Contract Law

A branch of common law that regulates contractual relationships, including the terms and conditions of non-union employment.

Tort Law

A branch of Civil Law (non-criminal law) that covers 'Torts' (or wrongs) for which there is a civil remedy, independent of any contractual relationship between parties.

Plaintiff

The party bringing a lawsuit or filing a complaint in court.

Negligent Tort

A civil wrong caused by a defendant's failure to exercise reasonable care, resulting in foreseeable damages to the plaintiff, who was owed a duty of care.

Supreme Court of Canada

The highest court in Canada and the court of last resort, hearing appeals from all Provincial Courts of Appeal and the highest Federal Courts.

Administrative Tribunals

Bodies that make decisions in specialized areas, such as employment standards or discrimination, often having primary jurisdiction over specific matters in Employment Law.

Judicial Review

A request to the court to review the decision of an administrative tribunal.

Substantive Law

The body of law that sets out the rights and obligations of individuals.

Procedural Law

The rules establishing how Substantive Law will be enforced.

Public Law

Rules governing the relationship between individuals and government at all levels (e.g., Tax Law, Criminal Law, Constitutional Law).

Private Law / Civil Law

Relates to the legal relationships between persons, including corporations, where there is no government involvement (e.g., Law of Torts, property, and contracts).

Burden of Proof

Refers to the responsibility to prove a case in court.

Standard of Proof

Refers to the degree of proof that must be provided to satisfy the court that the allegations are proven.

Beyond a reasonable doubt

The standard of proof required for Criminal Offences, indicating a very high degree of certainty.

Balance of Probabilities

The standard of proof required for Civil Offences, indicating that one version of events is more probable than another.

Administrative Law

The body of Law concerned with the Regulation of Business and other activities by government, including the rules created and applied to government agencies and their decision-making powers.

Business Ethics

The values and moral principles that help to identify right and wrong in a business context, often going beyond minimum legal requirements.

Litigation

The process of resolving disputes through a formal Court process, which can be costly and time-consuming.

Retainer (Lawyer's Services)

A deposit paid before a lawyer's work starts, placed in a trust account, or a contract setting out the fees to be charged by a lawyer.

Solicitor–Client Privilege

Legal protection for all communications between a client and their lawyer, preventing disclosure to third parties.

Paralegals (Ontario)

Legal service providers regulated by the Law Society of Ontario (LSO), restricted to practicing in certain areas such as Small Claims Court and Administrative Tribunals.

Small Claims Court (Ontario)

A court that hears matters involving claims of $35,000.00 or less, designed for quick, efficient, and inexpensive resolution.

Alternative Dispute Resolution (ADR)

The settlement of conflict through a process other than the Court System, including Negotiation, Mediation, and Arbitration.

Negotiation

A dispute resolution process in which parties interact directly in an attempt to reach an agreement about their respective rights or interests, controlling the process themselves without a third-party intervenor.

Mediator

A neutral individual invited by parties to supervise or oversee their negotiations, setting rules and agendas but not making binding decisions.

Mediation

A dispute resolution process where parties to a dispute invite a neutral individual (a Mediator) to supervise or oversee their negotiations, often aiming for a win-win solution.

Arbitrator

A neutral individual in a commercial arbitration who supervises the process and determines the result by making a binding decision, similar to a judge's role in a trial.

Commercial (Business) Arbitration

A formal dispute resolution process overseen by a neutral individual (an Arbitrator) who makes a binding decision at the end of the process, mirroring many aspects of a court trial.

Ontario Court of Justice

An inferior or Lower Court in Ontario, with limited power and status, consisting of Criminal, Family, and Provincial Offences Courts.

Ontario Superior Court of Justice

Consists of the Trial Division (highest trial court), Divisional Court (hears judicial review applications), and Small Claims Court (for claims under $35,000).

Ontario Court of Appeal

The court responsible for reviewing decisions of Lower Courts (e.g., Ontario Superior Court of Justice) for errors, not to re-try cases.

Notwithstanding Clause (Section 33 of Charter)

A provision in the Charter of Rights and Freedoms (Section 33) that permits federal or provincial governments to enact legislation 'Notwithstanding' a violation of certain Charter Rights, renewable every 5 years.

Pre-Litigation Process

The steps involved before a lawsuit formally begins, including lawyer consultations, determining limitation periods, and selecting the appropriate court jurisdiction.

Limitation Period

A time period in which a lawsuit must be commenced, after which the right to sue is lost.

Statement of Claim

A court document notifying a defendant of a lawsuit against them and outlining the reasons for the proceedings.

Statement of Defence

A court document notifying the plaintiff in a lawsuit that the defendant is denying the claim and identifying the defendant’s arguments.

Discovery

A procedure after the exchange of pleadings where both parties disclose all relevant information, including documents, and appear for examinations to answer questions about the case.

Damages (Legal Remedy)

Losses suffered as a result of a tort or breach of contract, or the monetary compensation awarded for these losses, primarily to compensate the victim.

Special Damages

Pecuniary damages (monetary losses) that have already been incurred and can be precisely measured, such as out-of-pocket expenses.

General Damages

Pecuniary damages (monetary losses) for pain, suffering, and future economic loss, including future loss of life expectancy or quality of life, which are not precisely measurable.

Aggravated Damages

A subcategory of non-pecuniary damages awarded for intangible harm, such as harm to reputation or humiliation, usually when the defendant's conduct was particularly malicious or insensitive.

Punitive Damages

A sum added to a damage award that is intended to punish a defendant and discourage similar outrageous behavior by others, applied only when conduct has been exceptionally egregious.

Mitigation of Damages

The expectation that plaintiffs make reasonable efforts to minimize their losses; failure to do so may result in a reduction of their compensation.

Injunction

A Court Order requiring a party to discontinue an action or prohibiting a party from taking a proposed action, designed to prevent future harm or escalation of present harm.

Specific Performance

A requirement by a Court that a party complete its obligations under a Contract, typically ordered when monetary damages are an inadequate remedy (e.g., for unique goods).

Writ of seizure and sale

A document obtained from the Court and filed with the sheriff that enables the sheriff to seize and sell personal property or real estate belonging to the defendant to satisfy a judgment.

Garnishment

A Court Order that requires a third party (e.g., a customer of the defendant) who owes money to the defendant, to pay that money into Court for the benefit of the plaintiff who holds a judgment.