LAW 122 - Midterm

Factors of Risk Management

-Risk avoidance

-Risk reduction

-Risk shifting

-Risk acceptance

Insurance

is a contract in which one party agrees, in exchange for a price to pay a certain amount of money if another party suffers a loss.

Types of Insurance

-Liability

-Property

Liability Insurance

provides a benefit if the purchaser is held liable for doing something wrong

Property Insurance

provides a benefit if the purchaser's property is damaged, lost, or destroyed

Law

rule that can be enforced by the courts

Civil Law

systems trace their history to ancient Rome

Jurisdiction

geographical area that uses the same set of laws

Common Law

systems trace their history to England

Two Types of Canadian Law

-Public

-Private

Public Law

concerned with gov't and the ways in which they deal with their citizens:

-constitutional law

-administrative law

-criminal law

-tax law

constitutional law

provides the basic rules of our political and legal systems

administrative law

is concerned with the creation and operation of administrative agencies, boards, commissions, and tibunals

Criminal Law

deals with offenses against the state (designed to protect society)

White-Collar Crimes

are committed by people in suits ( a manager who steals money from the petty-cash drawer)

Tax Law

is concerned with the rules that are used to collect money for public spending

private law

is concerned with the rules that apply in private matters

Three parts to private law

-law of torts

-law of contracts

-law of property

tort

private wrong, generally consists of a failure to fulfill a private obligation that was imposed by law

the law of contracts

is concerned with the creation and enforcement of agreements

the law of property

is concerned with the acquisition, use, and disposition of property

Sources of Law

-the constitution

-legislation

-the courts

The Constiution

is the document that creates the basic rules for Canadian society, including its political and legal systems

Division of Powers

States the area in which each level of gov't can act

-federal

-provincial & territorial

Federal

when a country has two levels of government

Provincial & territorial

elects MPs to represent them nationally in Ottawa, Canadians elect politicians to represent them within their own provinces & territories.

Legislative Assembly

the elected body or legislature

Residual Power

gives the federal gov't authority over everything that is not specially mentioned

Ultra Viras

Beyond the power

Doctrine of federal paramountcy

determines which law is pre-eminent based on the Constitution's division of powers

Intra Viras

Gov't acted within the scope of its power

Charter does not include two rights:

-property rights

-economic rights

property rights

are rights to own and enjoy assets

Economic Rights

are rights to carry on business activities

Charter's restrictions

-Government Action

-Corporations

-Reasonable Limits

-Notwithstanding clause

Government Action

the charter was introduced to govern the relationship between the individual and the state.

Corporations

The charter generally doesn't apply against private corporations

Reasonable Limits

occasionally acceptable to violate a person's rights that is demonstrably justified in a free and democratic society

Notwithstanding clause

the fact that it violates the Charter , may allow parliament or legislature to create & enforce a law "notwithstanding" in section 33.

Declaration

a court may simply declare that the charter has been violated. Legislature must then find a solution to the prob

Injunction

a court may take a more active role. It may impose an injunction that requires the gov't to address the problem in a certain way. Requires the defendant to act in a particular way

Striking down

takes effect immediately or it may be temporarily suspended

Severance, reading down & reading in

a court may save a statute by re-writing part of it.

-Served: only one part of a statue is offensive

-Read down: if a statute is written too broadly

-Read in: if a statute is written too narrowly

Damages

a plaintiff who wins a private law suit usually receives damages for the injuries or losses that have been suffered

parliamentary supremacy

while judges are required to interpret constitutional and statutory documents, they must also obey them.

Legislation

is law that is created by parliament or legislature

Subordinate Legislation

regulations that are created with the authority of parliament or legislature

Munipality

a town or a city

By-law

a type of subordinate legislation that is created by a municipality

Three different meanings of Common Law

-system of law

-sources of law

-type of court.

System

compares the common law system that operates throughout most of Canada to the civil law system that Quebec borrowed from France

Sources

within a common law system, refers to rules that are created by judges rather than by legislators or the drafters of the constituion

Courts

two sets of courts in England: courts of law and courts of equity

Nature of equity

equity no longer allows judges to decide cases simply on the basis of fairness

One set of courts

courts of law and equity were joined together.

Trust

exists anytime that one person owns property for the benefit of another

Litigation

is the system of resolving disputes in court

Class action

allows a single person or small group of people, to sue on behalf of a larger group of claimants

Common Issues in class action

must be a common issue amongst the various members of class

Representative Plaintiff

the plaintiff must qualify and demonstrate a workable plan for fairly representing the the plaintiff wants the court to reply on a rule that will help some claimants, while hurting others

Notification

a representative plaintiff must also have a workable plan for notifying potential class members.

preferable procedure

the court must be convinced that a class action is the preferable procedure for dealing with the claims

Certification

represents the court's decision to allow the various claims to be joined together and to proceed as a class action

Professional Liability Insurance

allows a client to receive compensation from a lawyer's insurance company if the lawyer has acted carelessly

Assurance Fund

provides compensation to people who have been hurt by dishonest lawyers

paralegal

is not a lawyer but provides legal advice & services

Pleadings

are the documents used to identify the issues and clarify the nature of a dispute

Plaintiff

the person who is making the complaint

Defendant

is the person about whom the complaint is being made

limitation period

is a period of time within which an action must be started

Statement of claim

document in which the plaintiff outlines the nature of the comlaint

Statement of defence

document in which the defendant sells out its version of the facts and indicates how it intends to deny the claim

counterclaim

is a claim that the defendant makes against the plaintiff

Reply

is a document in which a party responds to a statement of defence

Demand for particulars

requires the other side to provide additional info

Examination for discovery

process in which the parties ask each other questions to obtain info about their case

Settlement

occurs when the parties agree to resolve their dispute out of court

Pre-trial conference

is a meeting that occurs between the parties and a judge

Mediation

process in which a neutral person helps the parties reach an agreement

Evidence

consists of the info that is provided in support of an argument

Hearsay Evidence

is info that a witness heard from another person, rather than directly form the source

Judgment debtor

is a defendant who has been found liable and ordered to pay money to the plaintiff

Compensatory damages

financially compensate the plaintiff for a loss

Punitive Damages

punish the defendant for acting very badly

Nominal Damages

symbolically recognize that the defendant acted wrongfully, even though the plaintiff didn't suffer any loss

Specific performance

requires the defendant to fulfill a promise

Recession

terminates a contract

Appeal Court

decides whether a mistake was made in the court below

Appellant

is the party who attacks the decision of the lower court

Respondent

is the party who defends the decision of the lower court

Costs

are the expenses that a party incurred during litigation

contingency fee agreement

requires a client to pay their lawyer only if the lawsuit is sucessful

Small claims courts

is a type of court that deal with disputes involving limited amounts of money

Doctrine of Precedent

requires a court to follow any other court that is above it in a hierarchy

Rule of law

states that disputes should be settled on the basis of laws, rather than personal opinions

Administrative Tribunal

is a body, somewhere between a government and a court, that resolves issues and disputes that arise in administrative law

Private clause

is a statutory provision that attempts to prevent a court from exercising judicial review over a tribunal decision

Judicial review

is a process aimed at determining whether an administrative body's decision is valid

Reasonableness Standard

requires judicial deference, the administrative decision is allowed as long as it was reasonable.

Correctness Standard

does not require judicial deference, an administrative decision will be overturned if it is found to be incorrect