BLAW Chapter 1

What must businesses do in terms of risk?

Businesses must manage legal risks

What are the 3 steps in the risk management process?

1. Identification - recognize legal risks

2. Evaluation - assessment of legal risks

3. Response - reaction to legal risks

What are the 4 forms of risk management?

1. Risk avoidance - eliminate risk

2. Risk reduction - minimize risk

3. Risk shifting - shift risk to someone else

4. Risk acceptance - live with the risk

What are 3 examples of risk management?

1. Insurance - liability or property

2. Exclusions and limitation clauses Incorporation- contract with terms that exclude liability for certain act/losses

3. Incorporation - “limited liability” where SHL not usually liable for company debts

What is a jurisdiction?

A geographical area that applies and enforces a certain set of laws (eg. Ontario) or uses the same legal system (eg. Common law)

What are the 2 main types of legal systems?

1. Civil law jurisdictions

2. Common law jurisdictions

Where does civil law jurisdictions originate? And examples

Ancient Rome

Eg. France and most of Europe, Louisiana’s and Quebec

Where do common law jurisdictions originate from? And examples

England

Eg. England, Australia, New Zealand , most of Canada

What laws stay the same across Canada regardless of the jurisdiction?

Criminal, federal tax laws and constitutional laws

What are the 5 components of public law?

Matters of public concern:

1. Constitutional law

2. Administrative law

3. Tax law

4. Regulatory law

5. Criminal law

What is constitutional law?

Rules governing basic operation of law and politics

What is administrative law?

Rules governing creation and operation of agencies, boards, tribunals, and commissions that exercise delegated authority

What is tax law?

Rules regarding the collection of money for public spending

What is regulatory law?

Rules governing operation of societal activities: food and pharmaceuticals, trade, environment, transportation modes, telecommunications, broadcasting

What is criminal law?

-rules governing wrongs against society eg. Punching a person

-crimes in the business world (white collar and corporate)

Can a company be convicted under the criminal code?

Yes, for acts of the directors, officers, employees and others

What are the 3 components of private law?

Matters of private concern:

1. Tort law

2. Contract law

3. Property law

What is tort law?

Involuntary rules governing wrongs against persons

What is contract law?

Voluntary rules governing creation and enforcement of agreements

What is property law?

Involuntary rules governing voluntary acquisition, use, and disposition of property

What is the hierarchy of sources of law?

• constitution

• Legislation

• Courts

What is the constitution?

The highest source of law

• It provides basic rules for society, including our legal and political systems

Is the constitution easy to amend?

No, it is quite difficult and requires the consent of both the parliament and 2/3 of all provinces with at least 50% of population

What is federalism?

A system of government that Canada uses that has 2 constitutionally recognized levels of government:

1. Federal government

2. Provincial (territorial) government

What is a federal government?

A government that represents the entire county: parliament, made up of senate (appointed) and House of Commons (elected)

-led by the prime minister

What is a provincial (territorial) government?

It represents the province (territory), called the legislature (elected)

-led by the premier

What is the division of powers?

The constitution divides legislative authority:

• federal government - crime bankruptcy, copyright

• Provincial governments - property, civil rights

  *federal government holds residual power

What is the doctrine of federal paramountcy?

It determines which law trumps when federal and provincial statutes conflict

• when a government legislates outside of its authority, law is ultra vires and has no force or effect

What is ultra vires?

It means “beyond the power”; created by a government acting outside its area of authority

What is the charter of rights and freedoms?

-a part of the constitution since 1982

-includes rights and freedoms that affect people and businesses

What are some of the common business rights protected in the charter?

-freedom of religion

-freedom of expression

-freedom of mobility

-right to equality

What are some business interests that are not protected by the charter?

Economic and property rights

What are the limitations on charter rights?

-charter only applies to government action

-charter may apply in favour of private business

-charter rights subject to “reasonable limitations”

-charter subject to “notwithstanding clause”

What does charter only applies to government action mean?

It is not directly applicable against private businesses

What does charter may apply in favour of private business mean?

Some provisions are limited to “individuals”

What does charter rights subject to “reasonable limitations” mean?

Balance individual rights and community interest

What is the notwithstanding clause?

A clause in the charter where a government can legally override some rights and freedoms

-what the UCP invoked going against tams rights

*very rarely used

What are the 2 charter remedies?

1. Section 52 - constitution as supreme law

2. Sectioning 24 - enforcement of rights and freedoms

What is section 52?

A charter remedy that states Constitution as supreme law

-laws inconsistent with charter is “Of nor force or effect”

What is section 24?

Enforcement of rights and freedoms

-judge may award any appropriate remedy, including a declaration, injunction, striking down legislation, severance, reading in, and damages

What is a declaration?

When a judge states that the legislation is not in line with the charter and does nothing

What does “reading down” mean?

To simplify

What are the appropriate remedies in section 24?

A judge can find a legislation to be non-charter compliant and stick it down, often they give them a time frame (approx a year) to amend the legislation to make it charter compliant

What is the parliamentary supremacy?

Democracy! Where the ultimate authority rests with the governments (elected and accountable), not judges (appointed in Canada)

What is charter dialogue?

How the rover meant and courts communicate in relation to their charter

-government creates laws through legislation

-courts identify charter violations

-government may respond by amending or enacting laws to conform with Charter

What section of the charter covers indigenous rights?

Sections 35!

What is section 35?

It provides the basis for recognition and enforcement of indigenous and treaty rights

-includes treaty rights, indigenous rights and their relation to the crown

What are treaty rights?

Rights contained in treaty documents created between Indigenous Peoples and the Crown

What are Indigenous rights?

Collective rights held by Indigenous Peoples that reflect their original use and occupation of the land

What does “The Crown” mean?

It refers to the King or Queen, the House of Commons, the Senate, and the provincial and territorial legislatures

What is “the duty to consult”?

It refers to the requirement the crown to consult with Indigenous Peoples whenever it intends to act in a way that may adversely affect Indigenous rights

What are the 3 elements for the duty to consult?

1. Crown conduct

2. Potential harmful impact on rights

3. Actual or possible Inidgenous rights

Is the duty to consult a strict yes or no?

If there is both a stronger claim AND impact, it requires more of a consultation where on the low end it is more of a notification

What is required in the content of the duty to consult?

-If a project involves a weak claim with a minor impact, the duty may be fulfilled by notification

-If a project involves strong claim with serious impact, the duty may require deep consultation

What are accommodations in relation to the duty to consult?

They occur when the proposed project (typically with stronger claims and impacts) is adjusted or modified in response to Indigenous concerns

What are the 2 ways for new laws to implemented in Canada?

1. Laws created by parliament or legislature

2. Statutes - legislative process

What are the 2 categories of laws created by parliament or legislature?

1. Statues

2. Subordinate legislation

What is the legislative process?

The formation of a statute

-introduced as a bill

-gets majority support through series of readings

-sometimes public consultation follows

-finalized by royal assent (governer general)

What is subordinate legislation?

-created under parliaments or legislative authority

-regulations address the details of the act

What are examples of acts on subordinate legislation?

-food and drug act regulations address the details irradiation

-aviation act regulations address the details airplane maintenance

What are examples of subordinate legislation municipality?

province creates municipality then gives the municipality power to pass by-laws

What are the 3 main functions of courts?

1. Interpret and apply constitution

2. Interpret and apply legislation

3. Create and apply common law (judge made law)

What is common law in relation to systems?

Judge made law

What is civil law in the context of the legal system?

-civil law eg. Quebec/France

-common law eg, England

What is civil law in the context of within a legal system?

-civil law, private eg, divorce

-criminal law, public

What was Phase I of the historical development of common and law equity?

Courts of law

-only one set of courts in England

-rules often rigid and harsh

-people sought other relief from the King or his representative then known as the Chancellor

What was Phase II in the historical development of common law and equity?

Law and equity

-courts of law supplemented by courts of equity (or Chancery)

-2 separate but parallel courts, judges, and rules

What was Phase III in the historical development of common law and equity?

Fusion

-law and equity combined into single court

-ongoing rationalization of legal and equitable rules

What happens if there is an inconsistency with common law and equity?

The equitable rules apply or “equity prevails over law”

Does the law have formal limitation periods?

yes, typically 1-2 years

-but equity requires speed (eg, injunctions must be sought as soon as practicable)

What are the 8 common equitable remedies?

1. Injunction

2. Specific performance

3. Accounting for profits

4. Disgorgement

5. Rescission

6. Rectification

7. Estoppel

8. Trusts

How do trusts work?

Common law creates the split title:

-trustee holds legal title to property

-beneficiary enjoys equitable title to property

What is an express trust?

Settlor transfers property to the trustee to hold for the beneficiary