GMGT 3300 midterm

What is Law?

• A set of rules come together with a set of sanctions for those who don't follow

A code of behaviour

• Has two components (Substantive & Procedural)

Substantive Law

• The rights, duties & liabilities that each person has in society

• The right to own property/enter into a contract

• The duty of avoiding injuring people carelessly

• 2 Type of substantive law (Public & Private)

Procedural Law

• Law that deals with protection and enforcement of substantive law rights and duties.

• (e.g., Someone breaches a contract - what is the process?)

Public law

• Law that regulates the conduct of government and the relationships between government and people

• Law that always include the government some way

Private law

• Rules that goven relations between private persons or groups

• Gov does NOT need to be included

• Sometimes refer as civil law

Systems of Law

• Civil Law system of Law

• Common Law system of Law

What is Civil Law? (2 meanings)

• Civil law/Private law & Civil Law System of Law

• Judge doesn’t make law in this system

• Law is in Civil code and judges apply the law set out

What is Common law? (3 meanings)

1. Common Law System of Law: Law based on the desicion of judge

2. Common Law as opposed to Equity

   • Common Law: Case law (Law made by judge)

   • State Law: Law made by legislatures. Statute/Act is the legislation made in the gov

3. Common law as opposed to statute law

   • Common: Started in England with case law, very ridged

   • Equity Laws: Law of fairness, becoming very ridged. Specific rules must be followed. In the court discretion

Common Law system

• Principles of stare decisis (Theory of Precedent)

• Hierachy of Courts

  • Trial court → Court of Appeal → Final court of Appeal

Hierachy of Courts

1. Trial courts

2. Court of Appeal

3. Final court of Appeal

Trial Court

• 1 Judge

• Start of lawsuit

• Judge listen to both side’s and their witnesses

• Make finding of fact and finding of law, and apply the law

• Based more on facts sometimes

Court of Appeal

• 3 to 5 Judges (odd numbers)

• No witness

• Uses transcript, both side pays for it

• No change of facts

Final court of appeal

• last chance to appeal

• More odd # of judge

• No witnesses & change of fact

Principles of Stare Decisis

1. Judge is bound to decision of higher level of court

2. Precedents bind only the same circumstances

3. The past judicial decision is only a binding precedent on lower courts in the same jurisdiction/judicial system

4. Non-binding decisions can be persuasive

5. Not everything a judge says in deciding a case is binding on judges in later cases

   • Only ratio decidendi is binding

   • Obiter dicta is not binding

Ratio decidendi

Part of a judional decision explaining why they did it

Obiter dictum

Everything judge said

Three C’s for stare decisis

1. Certainty - law needs to be fairly predictable

2. Consistency - like cases treated similarly

3. Continuity - rule should stay the same over time

The constitution

Fundamental law of a nation or state

1. Provides creation of institutions of public authority

2. Defines powers of institutions and defines relationships

3. Provides the process for how laws are created and the limitations of power

4. Method of amending the constitution

Where do you find the constitution?

• Authoritative: Create law

• Persuasive: Creates rules of the constitution not a part of it but influence it

• Entrenchment: Parts of the Constitution so important only be changed extraordinarily

Authoritative Sources of the Constitution

• Legislatures: UK parliament, Canadian Parliament, Provincial legislature.

• Courts: Create amending formula laws interpreted by jurisdiction and charter.

• Royal Prerogative: Can appoint and dismiss PM, dissolve elected assembly, declare war

Federalism

• A method of dividing powers in which general and regional governments operate in a sphere of both coordination and independence.

• Two authorities not legally subordinate, not subordinate to one another

• Two corollaries

  • Final arbitrator that neither can control

  • Constitution Amendment in areas which neither level can control

Who creates Law?

1. Courts - Make case law (aka common law/judge-made law)

2. 11 Legislatures - Make statute law (statutes, Acts or primary legislation)

   • Federal and provincial governments

   • Make statutes and Acts

   • Create entities called administrative entities

3. Administration Legislation & Entities - Make subordinate legislation

   • The city of Winnipeg council makes bi-laws (subordinate legislation)

Suborbinate legislation

Law created by board/commission that is below a sovereign legislative body

What law wins out when there is a conflict?

A valid statute overrides all case law made

What are the branches of Law?

• Legislative - Make the laws

• Executive - Manages the laws

• Judicial - Interprets the laws

Roles of the courts

• Arbiter of the Constitution (like a referee)

• Legislation interpreter

• Protects Civil Liberties

  • 5 points about the Charter

• Private disputes

• Public disputes

Arbiter of the Constitution

• NOT the same as arbitrator

• Where a judge acts as an umpire or referee dealing with issues involving Canada’s constitution

• Determines whether a statute or Act is valid

Legislation Interpreter

• The judge must determine what the legislature intended the wording to mean (NOT what the judge thinks it should mean)

  • Uses literal interpretation for statutes

Protects Civil Liberties (aka Rights)

• Freedom of expression, freedom of religion, freedom of association, freedom from arbitrary arrest and detention, freedom from discrimination

• 5 Main points about the Charter of Rights

5 Main points about the Charter of Rights

1. The Charter of Rights is Entrenched

2. Subject to next two points, Statues are not permitted to violate rights set out in charter

3. Section 33 of the charter permits Parliament and provincial legislature to expressly overside the application of section 2 and 7 to 15 of the Charter of Rights

4. None of the right is absolute

5. The charter applies to statue law, any other law made by legislatures, government and government bodies

Inferior Court of Record

Judge only have juridiction under law

Ex. Family law court, small claims

Superior Court

Judge can hear any case they want to unless the statute says no

Ex. Court of appeal and Supreme Court

Adversarial System

• System to engage and initiate litigation

• Based on fact finding and moral force

• Issues: Different means, self-interest

Mediation

Thrid party that is acceptable to both sides act like mediator and help them reach a settlement

Provincial Court System (Manitoba)

• Inferior trial court.

• Judge hear matters that are given to them

• Mainly deals with criminal cases

• 1 judge no jury

• 2 divisions

  • Criminal & Family

Small Claims Court

• Inferior speciality trial court

• Lawyer not needed

• Multiple location

• Deals with: Contact disputes, debt owing, damages

• Hear matters where you can sue for up to 10k max

• Almost impossible to get appeals unless judge doesn’t have jurisdiction in decision they made

Manitoba Court of Appeal

• Superior court

• 1 location

• Judge appointed by the Federal cabinet

• min 3 judge, can be 3 5 or 7

Standard of Proof

• How convincing the evidence has to be for the judge to rule in your favour

• Criminal - beyond a reasonable doubt

• Civil - On a balance of probabilities

Res judicata

A case that has already been decided by a court and cannot be brought before a court again

Processes of the Court

• Who may sue?

• Standing to sue

• Class actions

• Recovery in court

• Settlement out of court

• Statute of limitations

• Party and party cost

• Soliciter costs

• Procedure in KB

3 Rules of appeal

• If criminal matter and your finding of law, you have right to appeal

• If criminal case and your finding of fact, and finding of law, you have to seek permission from the Court of Appeal to appeal

• If criminal appeal is against conviction based on an unreasonable verdict, it is treated as a question of law

What results are given judge hear appeal?

• Allow appeal: Continue in court

• Dismiss appeal: You lost

• Modify: Judge may vary final juridiction

• Send back for new court

Who may sue?

• All legal persons may sue, even corporations. If you are incompetent or under 18 then your litigation guardian can sue

• Unincorporated collectivity (i.e: a club) can’t sue. Each person in the club has to sue on their own

• Judge/court may not let you sue if it’s against public law

Standing to Sue

• Only people affected by the issue more than the general public can sue

• If the impact on you is no greater than the general public, not given the right to sue

Class action

A person or small group of persons is commit to legal action on behave of, an as yet unidenitfy group of persons

Recovery in Court

Obtaining a legal judgment or award for money, property, or rights owed to you through court

Statute of Limitations

• Timeline where an individual can bring an claim

• 2 years in Manitoba

Party and party costs

• Refered as ‘Costs’

• Losing party have to pay a contribution to winner legal fee and disbursement that’s reasonable

• Have to be requested

Solicitor costs

• Loser has to pay the entire legal fees and disbursements of the winner

• Likely to be granted if loser commited fraud

• Granted if it’s part of the contract

Procedure

Procedure such as evidences and form must be adhered to in Court of King’s Bench Rules

Definitions of Lawyers

• Barrister and Solicitor

• Litigation Counsel

• Counsel: Used in court

• In-house Counsel: Work for a business full-time

• Outside Counsel: Hire by person

Solicitor

• The person who handles the paperwork for legal matters, transactional work, legal advice, or drafting documents

• Draft contracts, handling wills, and conducting transactional business

Barrister

• The person that takes the matter to court, presenting case to the judge

Settlement out of Court

• Settlement where one of the parties agrees to pay money or do something for the other party wavies the right to pursue legal action

• Can happen anytime

Contingent fee Agreement

• A contact between the lawyer and the client where it’s agreed that the client pay a legal fee if they can collect money

• If nothing is collected, the lawyer gets nothing. The client is still expected to pay out-of-pocket expenses

• 20-40%

• Usually for personal injury cases

Legal Aid (2 systems in MB)

• Providing a lawyer for free or cheaper than usual

• Legal Aid Clinic & Judicare

Legal Aid Clinic

• Government pays for legal services

• Staff lawyer model

• Usually family or criminal cases

Judicare

• Any lawyer can agree to represent you on a legal aid certificate basis if you qualify

• Legal Aid pays the fee

Trial Process

1. Pleadings

2. Pre-trial

3. Trial

4. Post-Trial

   
   

Pleadings Stage

• Doc filed by each party that they will try to prove in court

• Statement of Claim: The doc that starts the case, filed in KB & serve personally on defendant

• Statement of Defence: File in KB & serve on defendants’s lawyer

• Reply (Optional): File in KB & serve on plaintiff’s lawyer

Pre-trial stage

• Meeting that the plaintiff's lawyer schedules with a judge and the lawyers, held in the judges chamber (office)

• Find dates of availability for both lawyers to meet up with the judge in the Judge’s Chamber, no clients present, the judge tries to find a way for settlement with agreement without needing to go to trial

Trial Stage

• Opening Statement → Plaintiff’s Case → Defendant’s Case → Legal argument - regarding fact & law → Judgement - may or may not be reserved

• The judge that hear the trial is NEVER the one from pre-trial

• Plaintiff’s lawyers direct examine their witnesses, the defendant’s lawyer cross-examines the witness, and they will ask open-ended questions. Lawyer can’t suggest answers

• Once the lawyers directly examine their witness, the defendant's lawyer cross-examines the witness; they will ask close-ended questions that they already know the answer to to make the witness look bad

Post-Trial

• Appeals and sentencing

• Judges give their decision on the case

  • Can be verbal or published

Reason for Appeal

1. Legal issues: Judge didn’t follow precedent or cases

2. Procedural issues: Court failed to follow procedures

3. Evidence: Evidence which wasn’t readily available

Judgement - may be reserved

• Judge can reserve their judgement = give their decision another time

  • Give you a timeframe: Days, weeks, months (within 3 months usually)

• Judge can give judgement right away or after a short recess

Statutes

pieces of legislation passed by government

Legal liability

• responsibility for the consequence of breaking the law

• 3 forms of liability

  • Criminal, quasi-criminal, civil

Criminal liability

responsibly arising from commission of an offence against the government or society as a whole

Regulatory or quasi-criminal liability

responsibility arising from breaches of less serious rules of public law, often enforced through specialized regulatory tribunals set up by the government for specific purposes

Regulations

administrative rules implemented by government as a result of authorization given in a statute

Case law

a collection of individual cases decided by the courts that develop and shape legal principles

Ultra vires

beyond the powers and therefor void

Party presentation

• Come from the plaintiff

• Try to get the most info

Party proscution

Plaintiff’s lawyer trying to push the case ahead

Dealing with lawyers

• Fees - method of payment

  • Lawyer cannot give the exact amount of money needed in a case

  • May charge by hours, transaction fee, or contingent fee agreement

• Retainer - A retainer fee is a set amount of money sent to the lawyer office under the client’s name

  • Lawyer way of ensuring they’re getting paid

• Fee disputes

  • Speak to the lawyer if in disputes about the fees

  • Client may be unaware of how much goes into a court case

• Barrister & Solicitor Attorney-at-Law/Lawyer Litigation Counsel

Tax a Bill

Formal process of having Law Society review the a lawyer’s invoice to determine if the fees and disbursement cahrged to client are reasonable

Vicarious liability

• Employers are “vicariously liable” for the torts (negligence, harm) committed by their employees in the course of their employment

• Important to know who the employer is so owner can know if they are liable