Commercial Law

What is the point of law

Protect people, regulate individuals, save time (time is money) and give power to the government to create law

Private law

Between individuals an businesses

Public law

Involves the government

Types of Federal law

Criminal, businesses, public health care, tax, constitutional, defence

Types of provincial law

Health care, family, education, property, civil

Rule of law

Laws apply equally to everyone, including the government

Binding codes of conduct

A governing body creates the code

Voluntary

Strong persuasive effect

Self-imposed

Self-published and enforced

Barrister

A lawyer that represents clients in trials, mediation and arbitration (go to court to solve the issue) 

Solicitor

A lawyer who handles out-of-court obligations like drafting contracts or preparing wills (prevents the problem)

Main ways of paying a lawyer

Hourly rate, contingency fee, retainer

Retainer

A fixed fee paid upfront and then draw from

Contingency fee

In the case is settled or won, the lawyer wins a % of earnings

Contract of adhesion

The contract is take-it or leave-it

Commercial law

Governs the rights, relationships and conduct of individuals and businesses engaged in commerce, merchandising, trade and sales 

Is contract law mostly public or private

Private

Goal of criminal law

To put someone in jail

Conviction for criminal law requires

Guilt beyond a reasonable doubt (>90% probability)

Conviction for regulatory offences requires

Balance of probabilities (>50% probability)

Civil law

Private law, requires written law, most often seeks financial compensation or specific action and a ruling is given by the government

Civil disobedience

Breaking the law to advance social issues

Claimant/Plantiff

The person suing

Defendant/respondent

The person against the claimant

Arbitrator

The final decision is an award

Judge

The final decision is a ruling

Constitutional Law

Creates governments, divides power between federal and provincial bodies and contains the Charter of Rights and Freedoms

Legislation

Statutes (provincial or federal laws), regulations (enforce statutes) and administrative rulings (clarify how regulations and statutes apply) 

Common law

Law created through court decisions (Canada’s system)

Section 1 of the charter

Guarantees the rights set out within it, but explicitly allows the government to legally limit rights with justification (allowable discrimination)

Section 2 of the charter

Fundamental freedoms (religion, expression, peaceful assembly and association)

Section 3-5 of the charter

Democratic rights (vote, protest, run for office)

Section 6 of the charter

Mobility rights (remain and move within Canada)

Section 7-10 of the charter

Legal rights

Section 15 of the charter

Equality rights and protected grounds (religion, race, gender, age, ethnicity, physical or mental disability

Division of powers

Law made outside federal or provincial jurisdiction can be declared invalid

Section 33 of the Charter

Notwithstanding clause (sunset clause —> only lasts for 5 years).

Provincial and Federal government can use the notwithstanding clause whenever they want

How legislation is made

Parliament votes on a law and passes it to the public

How to permanently amend the Charter

⅔ of provinces agree and make up at least 50% of the population

Double aspect

Federal and provincial governments pass complementary laws

Example of double aspect

Provincial highway control and federal drunk driving criminal law

Federal paramountcy

Where there is conflict, the law of the federal government is paramount 

MLA (member of legislative assembly)

Create provincial laws

MP (member of parliament)

Create federal laws

Legal Analysis steps

ILAC
Issue: state the issue 

Law: state the applicable law (state the full legal test) 

Application: apply the law to the facts (complete all steps of the legal test based on the case) 

Conclusion: state the outcome (answer the question)

What group does the Charter protect from

The charter only protects citizens from the government, not private players

Unconstitutional claims against a private group are handled through…

BC Human Rights Tribunal

Example of Charter limitations on private groups

Lululemon cannot be prosecuted under the Charter for discriminating against a protected ground (does not include the government)

When to use the ultra-vires test

Division of powers

When to use the charter challenge

Involves the government and there is infringement of section 15

Equitable remedies

Order someone to start or stop doing an action

Common law remedies

Damages

Types of equitable remedies

Specific performance: requires a party to fulfill their contractual obligations exactly as they were promised

Injunction: compelling a party to either perform a specific action or entirely refrain from certain conduct

Rescission: the legal cancellation of a contract

Court hierarchy (highest to lowest)

Canadian Supreme Court, BC Court of Appeal, BC Supreme Court, BC intermediate court and BC court of first instance (trial courts)

When to use the BC Supreme court for damages

Requested damages exceed $35,000

Standing

The legal right to bring an issue to court

Class Action

One or more representative plaintiffs sue on behalf of a larger group of people with common issues.

Steps in litigation

1. Plaintiff files a claim 

2. Claim is served to defendant 

3. Defendant files a response or a counter claim

4. Discovery → plaintiff and defendant exchange documents and obtain evidence 

5. Trial

6. Judgment and remedy 

7. Appeal 

Ways to come to an agreement outside of court

Arbitration

Mediation

Arbitration

A decision is made by a specialized third party (judge). The decision of an arbitrator is like that of a judge and can be appealed.

Mediation

A mediator is a facilitator of the process. The claimant, the defendant, and both lawyers meet with a mediator.

What type of intention is required to make a contract

Mutual intention

When is commercial intention presumed

Automatically (unless stated otherwise in writing)

Is social/domestic intention presumed

Not legally assumed

What is the point of making a contract

Create legally enforceable obligations between parties and provide a remedy if a party fails to perform

What constitutes as an offer

A clear expression of willingness to enter a contract on definite terms

When is an offer communicated

When it is brought to the attention of the offeree (an agreement does not make to be physically signed to be legally binding)

Example of when an offer is officially communicated

If an offer is mailed, even if the other party does not receive or sign it, it is legally binding

How can an offer end

• Revocation → offeror withdraws it before acceptance

• Rejection → offeree rejects it

• Counteroffer → usually kills the original offer

• Lapse of time → deadline passes or a reasonable time expires

• Death/incapacity in certain circumstances

• Failure of a condition required for the offer

Elements of offer acceptance

• Mutual and absolute agreement to all terms   

• Communication of acceptance to the offeror

• The agreement must be definite and unconditional

What does it mean when parties are at a distance

The parties are not communicating face-to-face or instantaneously; traditionally, they are communicating by mail or other distant methods.

Forum

A public meeting spot

Relevant forum selection factors

• Where the evidence is located and the convenience/cost of trial

• Which country's law applies and differences between the laws

• Strength of the parties' connections to each jurisdiction

• Whether the defendant genuinely wants the chosen forum or is seeking a procedural advantage

• Whether the plaintiff would suffer prejudice, such as inability to enforce a judgment, a time-bar, loss of security, or an unfair trial

Pompey test

1. Is the forum selection clause valid, clear, and enforceable?

2. If yes, can the plaintiff show strong reasons not to enforce it?

Modifications to the Pompey test in a consumer context

Greater attention to public policy, unequal bargaining power and fairness

Commercial contract

Courts are more likely to respect and enforce the agreement made between the parties.

Consumer contract

Greater scrutiny of whether enforcing the clause is fair.

Benefits of a common law system

Enables flexibility as society changes and provides more detail for specific situations 

Stare Decisis

To stand by things decided (in the common law system)

Bidding contract law

Once a company gives a bid, there is a mini-contract between the parties (before the main contract is signed) 

Supreme courts in BC

BC appeal court and supreme court

Provincial courts in BC

Family court, small claims court, criminal and youth court and traffic and bylaw court

When is precedent applicable in the court system

When the decision comes from the same level of court or higher

(If it’s not applicable, it is only persuasive)

Qualification to appeal

There is a legal issue (not just a disagreement with the decision)

Precedent

The decision of a judge from the same level of court or higher

is binding

What does a claimant/plantitff file

Statement of Claim/Notice of Civil Claim

What does a defendant/respondent file

Statement of Defence/Response to Civil Claim

Substitutional service

Giving someone the legal papers to sue not in person because you can’t get to them (online or physical mail)

Why would you want to use alternative dispute resolution

Faster, cheaper, less adversarial, parties have more control over the process and confidential