LAW 2401

What is Law?

Publicly prescribed rules that we must follow

What happens if we disobey the law?

We may suffer from adverse consequences

What are statutes?

Statutes, which are broadly applicable rules passed by legislatures and can be enacted in anticipation of future events

What are regulations (also known as ‘subordinate legislation’)?

Detailed rules refining, applying, or further describing broad statutory statements that are passed by the Governor in Council. They are also easily hidden

What is common/case law?

‘Rules’ laid down by the courts in which each decision determines the law as it applies to that dispute and in theory, helps determine whether the law is applicable to other similar matters. It was also based on the principle of stare decisis, an idea that like cases should be decided alike

What is the constitution?

Supreme law of the country, to which all other laws must conform

What role does the federal government have in making laws?

The federal government can make laws that apply across the country respecting matters assigned to it by the Constitution act. It is also technically responsible for government of the territories

What role does the provincial government have in terms of making laws

The laws that the provincial government sets only apply within the province. They are authorized to make laws only respecting matters assigned to it by the provincial government

What role do municipal councils have in creating legislature?

Laws only apply within the municipality. They are authorized to make laws only respecting matters assigned to it by the municipal government

Judges

Appointed, not elected. They make laws in the course of resolving specific disputes. They have the authority to make up random law but do not usually because it is guided by precedent, principle, statute, and constitution. They are as independent and as impartial as possible

Divisions of Law

Public vs Private

Public Law

Relating to relationship between individual and society and the powers of various levels of government

Private law

Law relating to relationships between private individuals, corporations, and other entities

Civil vs Criminal Law

Private lawsuits between individuals vs prosecution by the government to enforce a public law

Civil law vs common law

Common law is a whole body of decisions rendered by courts in particular matters (private and public). This applies to private law matters outside of Quebec, and public law

Substantive vs Procedural

Generally, laws dictating what rights people have vs. Laws. It dictates how rights can be enforced

Common Law vs Equity

No longer any official division, but equitable doctrines continue to have importance such as trustsCo

Court Systems

Hierarchical system in which the decisions of higher events are binding on lower courts. They are both in the matter at hand and for future cases. Another aspect of stare decisis

Adversial Systems

Not a scientific inquiry. Decision is to be based on evidence added by parties, who are presumed to be best abled to advance their case. The judge is the neutral arbitrator and the system itself is distinguished from inquisitorial systems

Is a mushroom a vegetable?

Ontario employment standards act enacts a minimum wage. Per regulation, the minimum wage provisions “ do not apply” to work performed by (f) a person employed on a farm whose employment is directly related to the primary production of vegetables. The issue with this is whether a mushroom is a vegetable or not, and whether this aw applies to mushroom growers

The law sets down various rules

Rules must be interpreted and there are rules to how said rules should be interpreted

Statutes interpretation

Courts must decide if facts of a particular case fits within general language, involving the determination of the meaning and applicability of statutory terms. There is no set formula for determining legislative meaning

Stare decisis

To stand by decisions and not to disturb settled matters

Torts

• Wrong to plaintiff

• Plaintiff drives litigation

• Results in damages and/or injunction

• Burden of proof: balance of probabilities

Criminal Law

• wrong to society

• Police lay charge & gather evidence, Crown leads prosecution

• Imprisonment, probation, fine

• Burden of proof: beyond a reasonable doubt

Battery

• Intentionally causing harmful or offensive behaviour with another person

• Protects physical integrity

• Harmful contact: punching, slapping, kicking, striking with implements, etc

• Offensive contact: spitting, kissing, poking, cutting hair, etc

• Includes nonconsensual medical treatment and sexual contact

Assault

• Creation of a reasonable apprehension of imminent physical contact

• For example, approaching someone with fists raised

• Prelude to battery

Consent

• Defendant is not liable if plaintiff consented to alleged actions (battery, imprisonment)

• Can be expressed or implied

• Extends to risks normally inherent in that act

• Wright v McLean

• Contact sports

Self defense requirements

• Honest and reasonable belief that harmful contact is imminent

• Force is reasonably proportionate

• Cannot be used once danger has passed

• Same requirements when defending third parties

Negligence Claims:

• Motor vehicle crashes

• Defective products: failure to warn

• Medical malpractice

• Slip & fall

• Misrepresentation leading to economic loss

Elements of a negligence claim

• Duty of care

• Breach of standard of care

• Causation of harm to pplaintiff

• Damages (plaintiff must suffer actual loss)

Defence arguments

• Damages were too remote

• Contributing negligence

• Voluntary assumption of risk

• Inevitable accident

Neighbor principle

Reasonable people must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor

Duty to rescue

• No general common law duty to rescue

• Exceptions include:

  • Special relationship between the parties (eg parent/child or employer/employee

  • Defendant prevents others from assisting the plaintiff

  • Defendant worsens the plaintiff’s situation

  • Defendant induces reliance

Duty to Control/Protect

• Where the defendant places plaintiff in a dangerous situation

• Where defendants role is aimed at protecting those in the plaintiff’s position

• Defendant’s role is to protect people from a dangerous person

Manufactur’s Duty to warn

• Product may be dangerous when used or misused

• No need to warn about obvious risk

• More stringent duty for pharmaceuticals or products that might be ingested

Duties related to reproduction

• Wrongful pregnancy

  • Claim by parents for costs/harms associated with unwanted (but healthy) child, often limited to costs of pregnancy/childbirth

• Wrongful life

  • Claim by a child born with disability

  • What policy considerations play a factor in these cases?

Standard of Care

• Reasonable person test

• Not perfect or super human

• Neither risk averse nor reckless

• Baseline of conduct we can all expect of each other

Breach of the Standard

• Probability of Injury

• Cost of avoiding the risk

• Reasonable person disregard some risks if cost of avoidance is too high

Professional standards and customary practices

• Standard is that of a reasonable professional in the field

• Compliance with customary practice is usually sufficient

• Expert importance

Damages

• Plaintiff can only sue in negligence if they suffer loss

  • Physical Injury

  • Psychiatric Injury

    • Consider related loss: lost earning capacity, costs of future care, pain and suffering

Remoteness of Damage

• May allow defendant to avoid liability if losses are unforeseeable or disproportionate to the negligent act

  • Bizarre or unforeseeable injury

  • Difficult to predict

Contributory negligence

• Allows for appointment of loss between plaintiff and defendant where plaintiff is partly responsible for injury or extent of injury

Voluntary assumption of risk

• Waivers

• Plaintiff must accept both physical & legal risk of the activity and agree not to see even if defendant is negligent

Participation in Criminal or Immoral Act

• Construed narrowly in Canada

• Doesn’t prevent plaintiff from collecting compensation for injury

• Cannot profit from Criminal wrongdoing

Competing Interests

• Right to reputation

• Freedom of expression

Elements of a defamation action

• reference to the plaintiff

• Defamatory material

• Publications

Defamatory material

• Anything that lowers the plaintiff’s esteem

• Includes literal meaning & innuendo

• Words, images, gestures, overall impression

• Examples

Reference to the plaintiff

• Includes name or image

• Includes identification by association

• Does not generally include individual members of large group

Publication

• Need not to be in traditional media

• Includes any communication to a third party who hears and understands it

• Every repetition is a new publication

• Anyone involved in the publication can be found liable

Defenses Justification

• Complete defense

• Plaintiff cannot complain about damage to reputation that plaintiff deserves

• Includes publication out of spite or malice

Defenses: Absolute privilege

• Attaches to specific occasions or parties

  • Executive officers of government

  • Parliamentary proceedings

  • Judicial proceedings

• Honesty & candour are very important, so that people must be allowed to speak freely

• Includes publication out of malice

Defences: Qualified privilege

• Where speaker has duty to make statement, and receiver has duty to receive it

• Defeated by evidence of malice

  • Erickson v X

• Includes:

  • Protection of our own or others interests

  • Protection of common interests

  • Protection of the public interest

  • Fair and accurate reporting of public proceedings

Defenses: Fair comment

• Protects statements of opinion, not fact

• Comments must be based on true facts

• Must relate to matters of public interests

• Need not reflect on the speaker’s actual opinion

• Defeated by evidence of malice

• Includes political speech but also sporting commentary, book & music reviews, restaurant reviews

Defenses: responsible communication

• Protects statements on fact on matters of public interest, if standards of responsible communication (journalism) are met

Remedies

• Injunction

• Damages (Hill v Church of Scientology)

  • Damage to plaintiff presumed

  • Consider totality of defendant’s conduct (retractions, apologies, etc)

• Deterrence factor

• Punitive damages

Defamation and the internet

• Ruining reputations

  • Internet allows defamatory material to be published instantly to a worldwide audience

  • May never be possible to know what people believe even if posts are retracted

Material defamatory

• Online material often exaggerated, inflammatory

• Give and take to internet spats

• Do ordinary people read online statements with a grain of salt

Where is online material “Spilled”

• Where is it posted? Where is it read?

• Where does the plaintiff suffer reputational harm?

• Potential for forum shopping

Who participates in publishing?

• The person who posts the material? What if a pseudonym is used

• The website or social media platform?

• What about hyperlinks?

What is a contract?

Exchange of value (often in promises) in which the law will enforce

What is the purpose of a contract

Promote trade and commerce

Contract law assumptions

• People will not enter into contracts if they do not receive a benefit

• Terms of contracts voluntarily entered into are fair

Contract Essentials

• Consensus (Offer & Acceptance)

• Consideration

• Intent

• Legality

• Capacity

Contract Formation

• Offer & Acceptance

• Consideration

• Intention

• Promissory & proprietary Estoppel

• Remedies for Breach of Contract

Corbin on the Definition of Offer

An offer is an expression by one party of their assent to certain definite terms which looks forward to acceptance by other to the exact same terms

Consensus = Offer & Acceptance

• Distinguish offers from mere “invitations to treat”

• Offers must be communicated

• Offers are effective when received and understood

When does an offer relapse?

• Rejected

• Counter offer

• Expires

• One of the parties dies or becomes incompetent

Acceptances

• Must be communicated

• Effective once received and understood

Post box acceptance rule

• When acceptance may be made by mail, the acceptance is effective when mailed, not when received

Manchester Diocesan Council v. Commercial & General Investments Ltd. [Q.B. 1969]

• The general rule is that when an offer is made which does not fix a time limit for acceptance, the offer must be accepted within a reasonable time for a valid contract to be created

• Notification of acceptance may come through any means whereby the offeree makes his intention known to the offeror and responds to the offer

Contracts focus

• Not intent, but what they did

• “A contract is formed where there is proof to outward appearances”

Consensus

The test for whether there has been an offer and acceptance is objective, not subjective

Consideration

• Something of value exchanged between the parties in order to create a contract

• Past consideration = no consideration

Pao On v. Lau Yiu Long

• The act must have been done at the promisor’s request

• Parties must have understood that the act would be remunerated

• Payment would have been legally enforceable if it had been agreed upon in advance

Pre-Existing legal duty

• Neither the promise to do nor the actual doing of X will be good consideration if X is a thing that the party is already bound to do

Contracts for the Partial Payment of a debt

Contracts for the partial payment of a debt are enforceable, despite the lack of consideration, because of the Mercentile Law Amendment Act

Promissory Estoppel

• Pre-existing legal relationships

• Clear promise or representation

• Detrimental reliance

• Unjust to enforce the promise

• Promissory estoppel can be used only as a shield, not as a sword

Proprietary Estoppel

• Must involve a property interest

• Does not require a pre-existing legal relationship

• May be used as a cause of action

Intention

• Parties must intend to create a legally binding relationship

• Test is objective not subjective

Legality

Contracts may be unenforceable for illegality because:

• They are statutorily illegal

• They are illegal under the common law

• Result: contract is void

Contracts are unenforceable because they are illegal under the common law

• Contracts in restraint of trade

• Contracts to commit crimes, torts, or fraud

• Contracts that interfere with good public administration

• Contracts that interfere with the administration of justice

• Contracts against morals

Contracts to commit crimes, torts, or fraud:

• Assault

• Extortion

• Evade currency controls

• Deal w/ prohibited substances

• Distribute obscene material

• Print libeous material

• Commit fraud

• Induce breach of contract

• Facilitate a fraud for tax purposes

• Evade securities regulatory controls

• Inflate value for financing purposes

Contracts that interfere with good public administration or the administration of justice

• Improperly influence public officials

• Witnesses to commit perjury

• Withhold testimony

• Avoid prosecution

• Maintenance (interfering with a lawsuit)

• Champerty (financing a lawsuit)

Two types of incapacity in contract law

• Mental incapacity or intoxication

• Minority (age, set by province)

• Result: contract is voidable

Void, voidable and unenforceable contracts

• Void contracts do not exist

• Voidable contracts exist, but may be avoided by one of the parties

• Valid but unenforceable contracts exist, but cannot be enforced

Examples of voidable contracts

• Lack of Capacity

• Duress

• Undue influence

• Unconscionability

• Misrepresentation

Equitable remedies

• Rescission

• Injunction

• Specific performance

• Rectification

• Accounting of Profit

• Quantum Mervit

Equitable principles

• Damages not available/adequate

• Acted immediately

• Clean hands

• No prejudice to innocent 3rd party

• Always discretionary

Protection of weaker parties

• Duress

• Undue influence

• Unconscionability

• Result: contract is voidable

Misrepresentation

• Statement of fact that is false… or an expression of an opinion by an expert that’s wrong

Types of representation

• Innocent misrepresentation (rescission only)

• Breach of a term of the contract

• Negligent or fraudulent misrepresentation

Types of Mistakes

• Mistake as to the terms of the contract

• Mistake as to an assumption underlying the contract

• Mistake in integration

Mistake as to the terms of the contract

• Mistake as to the terms of the contract occurs when both parties without fault, are mistaken about the meaning of an essential term of the contract

Mistake as to Assumptions

• A mistake as to an assumption underlying a contract occurs when the parties wrongly assumed at the time consensus was reached, that a fact which was fundamental to the creation of the contract was true when, in fact, it was not true

Mistake in integration

• A mistake in integration occurs when the parties reach a consensus through their negotiations, but an error is made when the agreement is reduced to writing

• The remedy for a mistake of integration is the equitable remedy of rectification

Frustration

• Performance of the contract has become impossible

• The reason the contract is incapable of being performance is not the fault of either party

• Event rendering the contract is impossible to perform was not contemplated in the contract

Conditions & warranties

A condition is a term of the contract that, if breached, deprives the innocent party of substantially the entire benefit of the contract as at the end and sue for damages

Expectation interest

• Plaintiff entitled to damages which would put him in the position he would have been in had the contract been performed, plus any reasonably foreseeable consequential losses

Reliance Interest

• If the expected losses were not taken into consideration, the plaintiff would be getting than compensation

• The plaintiff cannot be put in a better position than it would have been had full performance occurred