Agrilaw and Policy Final

Sophisticated Client

Confident -Not in awe of or intimidated by lawyers

Knowledgeable - Identify, not necessarily solve legal issues

Up-to-date - Information sources on and offline: Law societies, government resources, etc.

Becoming a sophisticated client

• Understands the respective roles of the lawyer and the client • Knows when to represent themselves • Knows when and how to locate and hire a suitable lawyer • Understands the various costs to be paid to a lawyer • Knows how to deal with dissatisfaction with a lawyer

Sophisticated client decisions

• Consider appropriate laws • Importance of evidence means it is important to keep records (and know which ones) : \*This is easier now than ever with digital capacity for storage of files and records \*These types of business/legal documents should be kept for 6-7 years as per Canada Revenue Agency’s (CRA) recommendation

Role of lawyer

• Provides relevant legal advice: Advises and makes recommendations

• Client is the decision maker: Not the lawyer

• Lawyer bound to follow client’s instructions: If lawful, of course!

Role of lawyer

Solicitor-Client privilege: The duty of the lawyer to keep the information provided by the client confidential • All relevant information needed by lawyer in order to get the best result

Confidentiality • Access to justice would be significantly reduced without this fundamental part of our legal system

How lawyers bill their clients

1\. Fixed fee – a fee quoted for the entirety of the work

2\. Hourly rate – like it sounds…services completed and billed by the hour

3\. Contingency fee: the lawyer receives a percentage of what the client collects

4\. Disbursements: other charges incurred by lawyer on behalf of client

5\. Retainer: works as a deposit

substantive law

The rights and rules that govern behaviour and set limits on conduct (you can drive, vote etc. You can’t rob, murder etc.)

The part of the law that defines and creates legal rights and obligations of individuals or entities. It includes laws related to contracts, property, torts, criminal law, and more. Substantive law determines how legal disputes are resolved and what legal consequences result from certain actions.

Procedural law

determines how substantive laws will be enforced • based on outcomes of previous trials

The set of rules that govern the process of enforcing legal rights and duties. It outlines the steps to be taken in a legal case, from filing a complaint to the final judgment. It is concerned with the methods and procedures used to enforce substantive law.

Common Law origin

The original source of the common law system can be traced back to the English monarchy, which used to issue formal orders called “writs” when justice needed to be done. A writ is a formal, legal document that orders a person or entity to perform or to cease performing a specific action or deed

Because writs were not sufficient to cover all situations, courts of equity were ultimately established to hear complaints and devise appropriate remedies based on equitable principles taken from many sources of authority

common law system

• As decisions were collected and published, it became possible for courts to look up precedential opinions and apply them to current cases

• The common law is not written down as legislation. Common law evolved into a system of rules based on precedent. This is a rule that guides judges in making later decisions in similar cases. The common law cannot be found in any code or body of legislation, but only in past decisions. At the same time, it is flexible. It adapts to changing circumstances because judges can announce new legal doctrines or change old ones.

common law

about 80 countries practice this

• The United States • England • India • Canada

civil law system

• Civil codes contain a comprehensive statement of rules. Many are framed as broad, general principles to deal with any dispute that may arise. Unlike common-law courts, courts in a civil-law system first look to a civil code, then refer to previous decisions to see if they're consistent.

civil law

only Quebec uses this law

It is based on the Napoleonic code

Stare Decisis

a principle that a question once considered by a court and answered must elicit the same response each time the same issue is brought before the courts

• A system of justice where judges are required to follow precedent

• Most significant feature of the common law system is that the decision of a judge is binding on all judges in lower courts

• Allows the parties to predict the outcome of the litigation and thus avoid going to court

Stare Decisis

Since no court decision can have universal application, the courts, in practice, must often decide that a previous decision does not apply to a particular case even though the facts and issues appear to be closely similar. A strict application of stare decisis may lead to rigidity and to legal hairsplitting, whereas too much flexibility may result in uncertainty as to the law

Precedent

A previous court decision that serves as a guide for future cases. It establishes legal principles and can be binding or persuasive.

Statutes

1\. a written law passed by a legislative body

2. a rule of an organization or institution

3\. They are parliamentary (legislative body of gov’t not monarch) enactments

 Enactment “sanction, authorization, legislation, act, representation” ie citation for violating speed  Take precedence over judge-made law

Statutes

• Legislation (Statutes and Regulations) overrides common law (judge-made law)

• Statutes and legislation determine what we must do to carry on business in Canada. Example Canada’s criminal code.

Sources of Law

Legislative, Judicial, Executive

Legislative

Parliament or legislative assemblies

statute law (legislation)

legislates or creates laws

Executive

Fed: Prime Minister & cabinet ministers together with each departments civil servants/bureaucrats

Prov: Premier and cabinet with “““

Subordinate legislation: regulations made by order-in-council or as authorized by legislation and bylaws made by municipal governments

administer and implement (enforce) the law (military, RCMP)

Judicial

Judges appointed by the various provinces and federally appointed justices

Case Law

the “courts” which interprets the laws

Constitution of Canada

Constitution Act, 1867, and the Constitution Act, 1982

The Constitution sets out the basic principles of democratic government in Canada when it defines the powers of the three branches of government

Charter of rights and freedoms

What document outlines the fundamental rights and freedoms of Canadians, including freedom of expression, religion, and peaceful assembly, and protects against discrimination based on race, gender, and sexual orientation?

ADR methods

negotiation, mediation, arbitration

Negotiation

• Should be the first recourse for people who find themselves in a disagreement • Parties discuss the problem with each other in order to find a solution • Requires cooperation and compromise • Either party can have a representative • Process may enhance relationship • Parties can withdraw at any time • Negotiation is NON-BINDING • Can often be unbalanced

Mediation

• Mediators are trained professionals • Neutral 3rd parties • They do not make decisions • Will meet with both parties together and separately • Outcomes are enforced like any other contract, where a contract is involved• Neutral third party helps parties settle the dispute • Communication facilitated by mediator • Finds common ground • Encourages compromises • Parties are not bound to accept solutions offered by mediator • Successful mediators require considerable specialized training

mediation disadvantages

• Not the process to use where blame or liability for injury must be determined • Parties must be willing to disclose information • When power is imbalanced, mediation may just exacerbate the weakness of one party

Arbitration

• Involves a 3rd party decision maker (independent and neutral) • Certified professionals • Conform to an ethical standards code • Information is disclosed to arbitrator by both sides prior to commencement. • Decision is binding (and in most cases enforceable) • Typically voluntarily but often contract clauses dictate arbitration up front • More private than court

Arbitration

• Parties agree on an independent third party to make a binding decision • Often specified as means of resolving dispute in original contracts • Arbitrators may be specialists in the matter under dispute...

Decision cannot be appealed but process may be reviewed by a court • Process is faster, less costly and more private than litigation • But more formal, more adversarial than mediation, and more costly than other forms of ADR

ADR Advantages

• Parties to dispute maintain control of the solution • Fewer scheduling and procedural delays • Less distraction in ADR • Lower costs than associated with court process • Diminishes risk of adverse judgments • Preserves good will

ADR disadvantages

• Judicial fairness and impartiality are not ensured • Courts have more power to extract information • Decisions do not follow precedent • Resolutions may not be enforceable • No public record of dispute or decision

Jurisdiction

• Refers to the limits of a legal authority • Refers to both political territories and geographic regions, as well as the types of legal matters over which a legal body has authority. • A formally authorized legal body is a court, political or governmental office, and in many situations, law enforcement agency • When a legal body holds jurisdiction, it has the authority to administer justice within that jurisdiction

Litigation and the courts

• Procedural law ensures a fair hearing, equal access to the courts, and that parties have a notice of action to adequately respond. • Trials are open to the public (for the most part); justice must be seen to be done • All litigants have equal access to the courts

Civil matters

• two private persons (civilians) use the court as a referee to adjudicate (make a judgement on) a dispute

• When a criminal offence has taken place it is considered to be against the state/crown and the victim

Criminal matters

• The government (crown) pursues the matter and prosecutes the accused • The judge (or jury) must be convinced beyond a reasonable doubt (more evidence proving than disproving) of the guilt of the accused • Regulatory offences (quasi-criminal, lesser offences): • Federal: environmental, fishing, and employment offences; provincial: motor vehicles, securities • Subject's people to fines and imprisonment

Criminal Law

deals with acts of intentional harm to individuals but which, in a larger sense, are offences against us all.

Found Guilty or not Guilty

Civil Law

deals with disputes between private parties, or negligent acts that cause harm to others. For example, if individuals or companies disagree over the terms of an agreement, or who owns land or buildings, or whether a person was wrongfully dismissed from their employment, they may file a lawsuit asking the courts to decide who is right.

Found Liable or not liable

Civil litigation process

Often the court requires the disputing parties to have tried ADR methods before a trial procedure will be instigated

• Court action must be brought within a relatively short period of time from the event giving rise to the complaint (often 6 years) • The plaintiff must commence an action by filing the appropriate pleading with the appropriate court • Varies depending on the jurisdiction and the nature of the complaint involved

Pre-trial procedures

Pleadings stating claims that give rise to the disputes and may include (depending on nature and jurisdiction): • Statement of Claim (plaintiff) • Statement of Defence (defendant) • Counterclaim / Defence to Counterclaim

Discovery

• The parties must agree on a discovery plan if they wish to obtain evidence through the discovery process. • The parties must deliver to all other parties an affidavit that lists all relevant documents in the party's power, possession or control. Copies of the documents must be made available at a party's request.

Burden of proof

can define the duty placed upon a party to prove or disprove a disputed fact; “task of proving” • In criminal cases, the burden of proof is placed on the prosecution, who must demonstrate that the defendant is guilty before a jury may convict him or her.

Remedies

Damages (monetary compensation) typically incurred with TORTS • General - based on estimates, i.e. pain and suffering or future loss of wages • Special – calculated to reimburse victim for costs incurred before the trial • Punitive – not to compensate victim, but rather punish the wrongdoer for outrageous or extreme behaviour, in the belief that this will deter him from engaging in the same conduct in the future.

injunction

cease and desist

special performance

proper performance of a legal obligation, the performance of a contractual duty, as ordered in cases where damages would not be adequate remedy (Ie fulfill what was contractually promised or equivalent)

Sole proprietor

• Must comply with government regulations  Registration and licensing  Meet zoning bylaws  Comply with workers’ compensation, employment insurance and income tax regulations  Keep sufficient records to satisfy government agencies

• Unlimited liability for financial obligations

• Vicarious liability (legally responsible) for torts of employees

Sole Proprietorship

• Oldest and simplest form of business organization • YOU AND THE BUSINESS ARE ONE AND THE SAME

• Advantages include: ◦ Simple and inexpensive to start ◦ Individual control over operations ◦ All profits to the owner ◦ Tax simplicity

Sole proprietor disadvantages

• Unlimited liability • Higher tax rate • More difficult to obtain equity financing • Limited resources and opportunity

Partnership

An association of two or more individuals carrying on a business for profit.  Partners are called principals  Principals should prepare a partnership agreement and should register

Partnership

Evidence of the following will usually give rise to the presumption of a partnership:

 Joint contribution of capital to establish a business  Intention to share expenses, profits, or losses  Joint participation in the management of a business.  Although a partnership agreement is recommended!

Partnership as an agent

• Partners are each agents of each other  Agency law applies to partners  Contracts made by a partner are binding on all the partners • Vicarious liability - all partners are liable for the tortious conduct of a partner or an employee

General Partnership

Similar to a sole proprietorship, except that there are two or more people.

Advantages include:  Pooling of financial resources and talents  Simplicity and ease of organization  Increased ability to obtain capital  Potential for growth

General Partnership disadvantages

 Unlimited liability  Divided authority  Partners’ liability is not limited to the assets of the partnership Personal assets may be used to satisfy claims against partnership A third party can collect from any partner Retiring partners remain responsible

Limited Partnership

• Limited partners are liable only to the extent of their investment • To avoid risk of being considered a general partner (with unlimited liability)  Should register as limited partner  Refrain from participating in decision-making

Limited liability partnership

 Only available to groups of professionals (lawyers, accountants, doctors, etc.)  Enables them to limit their liability among the partners, meaning a partner is not personally liable for acts or omissions of employees or other partners  Regulations vary from province to province  The non-negligent LLP partner will not face persona liability where their professional coverage is not sufficient.

Separate legal entity

Incorporating creates a separate legal entity, that has a legal personality separate from the people who own shares in it  An “owner” owns shares (pieces) that can be bought and sold  Shareholders can be continually changing, while the company itself remains intact  Corporation is a “legal fiction”  Shareholders do not actually own the assets of the business

Separate legal entity

Allows for acquisition of capital without involving shareholders in operation of corporation • Allows purchase and sale of corporation’s shares without interfering with ongoing operation of business • Shareholders are “investors” and while they may participate in the running of the business as directors or officers as in the case on farms, most often in larger corporations, shareholders may have zero to do with the business. • Limits liability of shareholders

Corporation Pros

Limited Liability (…mostly!) Shareholders protected from unexpected corporate obligations such as: • torts committed by employees • the failure to properly perform contractual obligations • Or courts “lift corporate veil” and hold principals liable for company’s obligations and any wrong doings committed directly by managing officers/directors• Tax advantages may be gained through incorporation • Much lower tax rate than other business structures (yet corporations typically come with higher annual operating fees) • Succession and Transferability considerations • Continues to exist after death of a shareholder

Corporation disadvantages

• Major changes in corporate structure require amendments to the incorporation documents (this can be complex) • Position of minority shareholder is weak • The free transferability of shares may be restricted • Most expensive way to operate a business • Complex record keeping and filing requirements (everything documented in minute books • File corporate tax returns (in addition to personal)

Roles of shareholders

• Owe no duty to the company • May carry on business in competition

roles of board of directors

Directors are elected by shareholders who appoint officers/managers so are removed from day-to-day operation of company

Roles of officers

The roles of officers in an organization are crucial for smooth functioning. They manage finances, oversee operations, develop strategies, and communicate with stakeholders. Officers make critical decisions that impact the organization's success and work collaboratively to achieve common goals. Effective officers possess leadership skills, communication abilities, and the ability to motivate team members.

Elements of a contract

Consensus, Consideration, Capacity, Legality, Intention

Consensus

meeting of the minds of contracting parties

• Share an understanding of the bargain struck • Be willing to commit themselves to terms • Terms must be unambiguous (clearly defined) • Failure to read a contract is no excuse • Comprised of Offer and Acceptance

Offer (consensus)

Offer must contain: • All of the terms of the contract • A communication of willingness to be bound • Terms of offer must be clear An offer may contain a condition or “subject to” • If not satisfied the parties are not bound to proceed with the contract

Invitation to treat (consensus)

• Not an offer to sell • An invitation to the general public to engage in the bargaining process “pre-negotiation”  Advertisements or sales promotions are not binding offers  Articles displayed for sale are not offers but merely invitations for customers to offer to pay the price of the item

Offer by Conduct (consensus)

An offer by conduct is capable of being accepted • Taking goods to the cash desk in a store • Hailing a cab • Gesture at an auction

Communication of an offer (consensus)

• An offer must be communicated • Disclaimers of responsibility (Exemption clauses) if strict, must be brought to the attention of the person granting it • Only the person or group to whom an offer is made can accept it

Acceptance (consensus)

Parties are bound to the contract at the point of acceptance. • Must be unconditional (beyond counteroffers or conditions etc., time for negotiation is over) not to be confused with “conditional” offer • Must not specify any new terms

Consideration

Bargaining • trading promises for promises (be careful not to confuse this for the exchange, say $ payment, itself) • “The promise is to deliver the TV is a valid consideration, as is the promise to pay. ”

Consideration: • the price ($ or similar) one is willing to pay for a promise • all parties must derive some benefit from the deal

Consideration

• Not necessarily money • 3 heifers for one bull • Farm sitting for riding lessons • Could be a payment to do something or NOT do something (ie pay employees to stop smoking) • If the agreement is one sided and only one of the parties benefits from the deal this in known as gratuitous promise, or gift, and the courts will not enforce it.

Adequacy of Consideration

• Need not be fair (i.e. a friend’s new Porsche for $10,000), market value does not need to be reflected, but: • Unfair consideration may indicate:  insanity or fraud  undue influence • However, consumer protection statutes exist (B2C) can’t take advantage of merchants • Consideration, however MUST be specific

Capacity

• Refers to the ability to make a rational decision based upon all relevant facts and considerations. • In criminal law, the defendant must have the capacity to understand the wrongfulness of his or her actions. • In making a will, the maker of the will must have testamentary capacity, meaning that he/she must understand the nature of making a will, have a general idea of what he/she possesses, and know who are members of the immediate family or other "natural objects of his/her bounty.

Capacity

• Capacity to make contracts may be lacking in the case of minors or mentally disadvantaged persons. • A contract signed by a person lacking capacity may be void or voidable.

Capacity Fundamentals

• Contracting parties must have the capacity to contract • Lawmakers recognize that some people are more vulnerable and receive special protection • Protections include having the ability to have contract limited or eliminated completely in some cases

Minors capacity

• Minors (or infants): constitute those under age of majority (18 or 19) • Adults bound when contracting with minors  Voidable by minor, but not for some situations such as entertainment contracts (however not after that minor is of legal age) • Are parents liable for minor’s contracts?  No (subject to some conditions in certain jurisdictions)

Capacity

• Insanity  No understanding of the nature of the transaction  Person claiming insanity has onus to prove it  Other person knew or should have known of insanity (this will be examined to determine of there is a case)  May repudiate (refuse to fulfil) when sane • Drunk/intoxication  Treated like insanity • Weakened intellect Unconscionable transaction

Intention

• Not all agreements are legal contracts, meaning no intention to have legal obligation, ie “sure I can help you move on Saturday” • In contracts, intention refers to the intention to create legal relations • Protects reasonable expectations or intentions clearly stated in contract

Intention

• Intention presumed in commercial relationships. • No intention presumed in social or domestic relationships • Reasonable person test applied in cases of exaggerated claims “what would a reasonable person think in the person making the offer/promise was serious and that the agreement was legally binding”. “I was only kidding” is no excuse!

Legality

• ILLEGAL performance of a lawful contract involves a breach of legislation that is regulatory in nature, normally making the contract void.

Employee

* **Entitled to Benefits in the Employment Standards Act (ESA).** Employees are entitled to laws such as minimum wage, severance pay, overtime pay, among many other statutory benefits in the ESA.
* **Full Attention.** More often than not, employees need to dedicate their full time and attention to their employer. They cannot have a side business or second job in most cases. 
* **Payroll Deductions.** Wages earned by employees are subject to the Canada Pension Plan (CPP), employment insurance (EI) and income tax deductions straight from their paycheque. 
* **Tools and Equipment Provided.** Employees are provided all the necessary tools and equipment required to perform their job. This could include uniforms, computers, office space, vehicles, and the list goes on. 
* **Restricted to Salary or Wages.** The employee does not earn more when a company is profitable or less when the company is not profitable. In other words, they do not bear the risk of operating the business, their salary or wages are fixed. 
* **Constraints on Performance.** Employees must do their job on their own and perform the work in a manner specified by the employer. Furthermore, an employee can’t hire someone else to do their job for them and aren’t allowed to perform the work however they’d like. 

Contractor

* **Employment Standards Act (ESA) Does Not Apply.** As a contractor, you are not covered by the ESA. 
* **No Limitations on Work.** Contractors are not limited in how much work they can perform. They can have multiple customers at one time. 
* **Work is Invoiced and Taxes Are Remitted by the Contractor.** Any work completed by the contractor is invoiced to the business. The contractor is responsible for tracking income and remitting taxes to the government, such as income tax and HST. 
* **Supply Their Own Tools and Equipment.** Contractors are responsible for supplying their own tools and equipment to perform their work. 
* **Bear the Risk of Gain or Loss.** If the business a contractor runs is profitable, the contractor will benefit directly. On the contrary, if the business is not profitable, the contractor will face the loss directly. The business risk is placed on the contractor entirely. 
* **Business is Theirs to Operate.** However a contractor wants to run their business is acceptable, so long as they abide by the appropriate laws and regulations. They can hire employees to help with work and control the way work is performed. 
* **Eligible Expenses are Deductible.** Contractors essentially run their own business which means that they can deduct eligible expenses against their income on their tax return.

Employee Advantages

* Various employee benefits including, but not limited to, disability insurance, provincial medical plan, vacation pay, extended health benefits, workers compensation coverage, and pension plans
* Compensated for overtime hours and at a higher rate
* Record keeping of income and expenses not required
* Eligible for employment insurance (EI)
* 50% of Canada Pension Plan (CPP) premiums paid by employer
* Qualify for Canada employment tax credit
* Difficult to be terminated, more job security
* Severance pay is usually applicable on terminations

Employee disadvantages

* Expenses are rarely tax-deductible
* Required to pay employment insurance (EI) premiums
* Little control over work schedules and conditions

Contractor advantages

* Many expenses are tax-deductible, such as client entertainment or business travel
* Registering for a GST, PST or HST account can improve cash flow
* Unless voluntarily paid, no employment insurance (EI) premiums required
* Able to work with multiple customers at a time
* Flexible working conditions and hours
* Opportunity to control and increase your own profits

Contractor disadvantages

* Responsible for paying employee and employer portions of Canada Pension Plan (CPP)
* Cannot collect employment insurance (EI), unless voluntarily paid
* Severance pay not applicable to terminated contractors
* Contractors bear the risk of loss
* Responsible for purchasing and maintaining tools and equipment
* Contractor liable if contractual obligations are not fulfilled, liability insurance might be necessary
* Record keeping of income and expenses is needed and might require a bookkeeper or accountant 
* Financial management necessary to ensure timely payment of taxes, payroll, and other large expenses
* No employee benefits
* Registering for a GST or HST account is usually required

organizational test

• Question if the person is an integral part of employer’s organization?  Management, bringing in clients (business dev), decision making for the organization.

Termination

refers to the end of an employee’s employment relationship with a company. • An employee may be terminated from a job of their own free will or following a decision made by the employer.

Voluntary dismissal

Voluntary termination of employment could also be a result of constructive dismissal. This means that the employee left the company because they had no other choice. They could have been working under significant duress and difficult working conditions for the employer—which could include: • a too-low salary (or decrease) • harassment • a new work location that is farther than the employee can reasonably commute • increased work hours

Voluntary dismissal

On the other hand, an employee may voluntarily terminate their employment with a company. • An employee who decides to terminate employment with a company usually does so when  they find a better job with another company  retire from the labor force  resign to start their own business or  take a break from working.

involuntary dismissal

Involuntary termination of employment occurs when an employer lays off or fires an employee. • Companies decide to lay off workers or downsize their organizations to:  lessen their operating costs  restructure their organizations  they no longer need an employee’s skill set • In a layoff, employees are usually let go through no fault of their own, unlike workers who are fired.

involuntary dismissal

An employee is usually fired from a job as a result of:  unsatisfactory work performance  poor behavior or attitude that does not fit with the corporation’s culture  unethical conduct that violates the company’s policies.

Just Cause

means you have been let go because of some type of misconduct on your part and your employer had just cause to fire you. • Usually the employer will give the employee warnings unless the behaviour is so serious that it requires immediate dismissal.

Without cause

• When an employee is terminated without cause, it means they are being let go, but not for significant workplace misconduct. • The reasons behind a termination without cause may include restructuring, cost cutting, realignment, or poor work performance. • A company can also let you go simply because they don’t like you…or the famous “you’re just not a fit”. • As long as the reason for the termination or lay off is not discriminatory, it is completely legal for the employer to terminate your employment.

Wrongful dismissal

A termination that was improperly done: • Without proper notice • Without Pay in lieu of notice • Without cause (lacking the element discussed with cause)

What can be done? • Damages awarded based on what the employee would have received had proper notice been given • Damages for defamation or intentional infliction of mental stress are possible • Reinstatement is rare, but possible

insubordination

Disobeying authority or refusing to follow orders is known as this term. It may result in disciplinary action, including termination.

incompetence

The inability or lack of skill to perform tasks or duties required by a job or position. It can lead to poor work quality, mistakes, and even accidents.

Can be dismissed without notice

Negligence

• Negligence is inadvertent, careless conduct that causes injury to another

• Four required elements must all be established to succeed in a negligence action

 A duty of care

 Breach of duty (experts held to higher standard)

 Causation

 Damage

But-for test

• Damage must also be a direct result of the careless conduct • “But for” test: “but for” the conduct of the plaintiff, no injury would have resulted (causation)

domino effect

Insurance

• Purpose: to reduce the cost of loss by spreading the risk • Insurance transfers the risk from the insured (you and I) to the insurer (Ins. Co) • Premiums increase with the amount of risk involved (newer, more expensive vehicle, your driving record) • Tightly regulated  Federal and provincial legislation