Combined

Divisions of Powers

Federal-S.91 Provincial-S.92

Common Law

judge-made law based on precedent/stare decisis, separate source of law from statue law

Precedent

earlier case used to resolve a current case due to similarity

Judgement

formal ruling/decision with reasoning for outcome

2 Laws Judges can Apply

common law rulesrules of equity

Equity

rules that focus on what would be fair given the specific circumstances rather than the strict rules of common law

Binding

all jurisdictions of The Supreme Court of Canada are \_______

Canadian Charter of Rights & Freedoms

supreme law that protects citizens from laws from the government

Supreme Law

can override any legislation or government action that is inconsistent with its principles

Categories of Rights

democratic rightsmobility rightslegal rightsequality rightsofficial languages of Canadaminority language educational rights

Stare Decisis et non Quieta Movere

stand by the thing decided & do not disturb the calm

3 Alt. Approaches to Resolve Dispute

negotiationmediationarbitration

Negotiation

least formal & least structuredneed both parties

Mediation

more structured form of negotiation3rd party is hired for communication (mediator), and still requires both parties

Arbitration

closest to litigation (suing); private form of litigationprivate judge collectively chosencommon for contract disputes

Litigation

publiccivil lawsuit for $50,000\>\=slow, expensive, unpredictable; last resort

4 Stages of a Lawsuit

pleadingsdiscoverytrial & decisionenforcement

Pleadings

identify nature of caseno evidence, just allegations; no surprisesdisclose all info

Statement of Claim

a lawsuit is started when the plaintiff prepares this in the Court of Queen’s Benchexplains: who is being sued, what happened, legal principles, amount of damages claimnot proof nor evidence, merely outline of allegations

Statement of Defence

defendant side of storynot evidence just allegationswill show why they are not responsiblecan make corrections of Statement of Claim

Counterclaims & 3rd Party Claims

if defendant views that plaintiff has caused damage to the defendant, it will issue Counterclaim against the plaintiffif defendant views someone else who hasn’t been sued caused damage, it will issue 3rd Party Claim

Provincial Court

disputes less than $50,000Civil Claim & Dispute Note instead of Statement of Claim and Statement of Defense respectively

Discovery

disclose all documentary & oral evidenceavoids surpriseslongest, slowest & most important phase

Purpose Rule 5.1 (1)

ensures everyone knows all information

Discovery of Documents

Plaintiff must deliver Affidavit of Records (AoR) within 90 days after a statement of defense is filedDefendant must deliver AoR 60 days after receiving the plaintiffs AoR

Affidavit of Records

agreement that swears everyone has exchanged all info

Questioning for Discovery

NOT in court - usually at lawyers office w/ privately hired court reporter under oathFirst point of contract w/ lawyers which makes this importantMay be multiple rounds of oral, can take years/months due to documents

Trial

usually judge alonejury trials are rare, and when there are, they act as trier-of-fact but it is the judge who applies lawBurden of Proof is on the plaintiff to prove their case on a Balance of ProbabilitiesJudge makes decision & determines who pays costs of case

Burden of Proof

“beyond reasonable doubt”

Balance of Probabilities

whose version of event is most likely right? 51% is the standard applied

Costs

legal expenses that a judge orders loser to pay winner

Enforcement

(if necessary)process of identifying assets, accounts, and income statements to seize themJudgement Debtor - party ordered by court to pay specified amount to winner of lawsuit

Binding Authority

Alberta Court of King’s Bench is bound to follow earlier decisions of the Alberta Court of Appeal The ACoA’s decisions are “binding” on the ACoKB

Persuasive Authority

The Alberta Court of King’s Bench is not bound to follow earlier decisions of the Manitoba Court of Appeal The MCoA’s decisions may persuade the ACoKB, but Alberta judges are not bound to follow the Manitoba decision

Tort Law

civil liabilities (found liable or not, not guilty/not guilty)wrongful act (other than breach of contract/crime) that results in injury to:personpropertydignityreputation

Purpose of Tort Law

to compensate injured party punishment is not a purpose of this

3 Categories of Tort

NegligenceIntentional TortsStrict Liability

Negligence

unintentional conduct - carelessness that causes harm to another ex: inattention while driving which results in an accident

Intentional Torts

intentionally causing harm, deliberate ex: road rage makes u ram another car causing damage

Strict Liability

does not matter whether you were intentional or not, you are still responsible if you do it ex: handling hazardous animals & animal harms someone

Types of Intentional Torts

TrespassConversionAssault & BatteryFalse Imprisonment

Trespass

unauthorized, intentional intrusion upon another’s’ land

Conversion

intentional appropriation of the goods of another person for appropriator’s own purpose (theft basically)

Assault & Battery

intentional interference with another person; aka trespass to person

False Imprisonment

holding a person against their will & without lawful authorityex: citizen arrest may be ok in some circumstances but risky

Detinue

all intentional invasion of the plaintiff’s legally protected interestleast commonhow the unlawful possessor got a hold of stolen propertyex: giving someone a car to borrow however they are not giving it back

Trespass to Land

actionable without proof of damagetrespassers are liable for all losses they cause even if accidentalex: even placing object on someone else’s landex: even if they give permission @ first then revoke consent & you don’t leave

Trespass to Chattel

low level direct interferencetaking/moving/disposing of someone’s propertyex: vandalism

Chattel

everything but land

Battery

focal tortdirect harmful or offensive contract with another personANY TOUCHING

Assault

threat of harm in tort law; intention to cause fearimmediateperson may be guilty of this without being guilty of a batteryplaintiff feels fear/anxiety

Defenses to Civil Battery Claim

self-defense - right to defend yourself from imminent harmconsent - ex: sport

Defamation

written/printed/spoken words that tend to lower a person in the estimation of others/causes them to be shunned/avoided or exposed to hatred Requirements: prove words were defamatoryprove words were referred to plaintiffprove that words were published (to at least one other person other than plaintiff)

Defenses to Defation

Truth - if you can prove what you said was trueFair Commentstatement of opinion on a matter of public interest - based on true factsAbsolute PrivilegeParliamentary proceedingsWithin legal proceedingsQualified Privilegeapplies when there is a duty to publish matter complained to persons w/ corresponding duty/interest to get it. No malice ex: character references: new employer reaching for older employer (no intent of maliciousness for trying to get info)

Injurious Falsehood

product defamation Plaintiff must show that: a. defendant used false words to 3rd parties b. words refer to plaintiff/their property/business c. words were malicious d. special damage followed & a direct & natural result of their publication ex: spreading false rumour abt competitors product ingredients

Inducing Breach of Contract

The test for inducing contract breach requires: (i)the existence of a contract; (ii)knowledge or awareness by the defendant of the contract; (iii)a breach of the contract by a contracting party; (iv)the defendant induced the breach; (v)the defendant, by his conduct, intended to cause the breach; (vi)the defendant acted without justification; and lastly, the plaintiff suffered damages

Interference with Economic Relations

The tort has three elements: The defendant have intended to injure the plaintiff’s economic interestsThe interference must have been illegal or unlawful meansThe plaintiff must have suffered economic harm or loss as a result ex: bribe made to ensure bid is given priority over plaintiffs bid

2 Types of Liability

Primary (Direct) Liability - arises bc of one’s own personal wrongdoingVicarious Liability - arises due to relationship someone has to the person who actually commits the tort

Vicarious Liability

idea that you can be liable for someone else’s wrongex: employers are VL to employees

Tortfeasor

person who commits a tort

Joint Tort-Feasors

when a concerted or common act by multiple parties produces/causes harm to another

Concurrent Tort-Feasors

when separate acts by unrelated/independent tortfeasors combine to produce/cause harm to another

Joint & Several Liability

Joint tortfeasors and concurrent tortfeasors will be jointly and severally liable to the injured party.

Contributory Negligence

plaintiff has contributed to their own misfortune by their own negligence ex: car accident injuries, but lawyer established some injuries were due to the fact that driver was not wearing seatbelt

Damages

Purpose is to compensate the victim for loss or injury caused by the defendant Types of Damages: General Damages (non-monetary)Special Damages (monetary)Aggravated DamagesPunitive Damages

General Damages

Compensation for pain and suffering, loss of enjoyment of life, and loss of life expectancy

Special Damages

precisely calculable expenses or losses incurred

Aggravated Damages

compensate for the aggravation of intangible injuries such as distress, anguish, grief, humiliation and damaged self-pride

Punitive Damages

designed to punish for malicious, oppressive, and high-handed conduct rare

Test for Negligence

Duty of CareStandard of CareCasual Connection - defendants breach is caused the plaintiffs damagesRemoteness of Damages

Duty of Care

does defendant owe plaintiff duty of care? legal duty to take care to prevent harm to others a. established relationships (ex: doctor/patient, driver/pedestrians) b. neighbour test

Standard of Care

did defendant breach standard of care? extent a reasonable person would act

Causation/Casual Connection

did the defendants careless act cause plaintiff’s injury? but for testmaterially contributed to occurrence of the injury?

Remoteness & Damages

was there an injury suffered by plaintiff that is not too remote? ASK:  Is there a sufficiently close relationship between the defendant’s action and the plaintiff’s injury?the question is whether the defendant could have foreseen that its breach of the standard of care would cause the kind of damage that the plaintiff experienced

Total Defense

voluntary assumption of riskmust be shown that the plaintiff voluntarily assumed both the physical and the legal risk of injury from the defendant's negligence ex: waivers for skiing

Partial Defense

contributory negligenceWhere the plaintiff has contributed to their own misfortune by their own negligence

Inevitable Accident

an accident is purely inevitable, and not caused by the fault of either party, the loss lies where it falls person invoking the defense must show that something happened over which he or she had no control, and the effect of which could not have been prevented by using great skill and care

Illegality

plaintiff and defendant were jointly involved in an illegal enterprise Courts will not hear a lawsuit brought by a party engaged in unlawful activity

Contract

a) A deliberate agreement between two or more competent persons; b) Supported by mutual consideration; c) To perform some act voluntarily; and, d) which agreement is enforceable in a court of law. e) (not necessarily in writing) contract is an agreement between two parties that is enforceable in a court of law.do not usually have to be in writing to be enforceableoral contract - need witnessesStatute of frauds: Requires that certain contracts be in writing to be enforceable

Example of Business Contracts

Even a simple casual/verbal sale (a pack of gum) is a contract.  ALL contracts are subject to the same basic legal rules.   Some formal business contracts include: LeasesSales contractsLoan contractsSupply purchase contractsEmployment contractsConfidentiality agreements

Legal Components of Valid Contract

intention to create legal relationship (binds them in law)offer & acceptancemutual considerationmust conform to the law (must be legal)

Acceptance of Contract

unqualified willingness to enter into a contract on the terms in the offer

Mutuality of Intention

it must be shown that the parties were at a “meeting of the minds” on all of the agreement’s essential terms (“consensus ad idem”)

Consideration

price paid for promise each party must receive & give something of valuepromises to pay purchase price in exchange for seller’s promise to providegratuitous promise - promise for which no consideration/contract

Termination of Offer

Revocation – “My offer is no longer on the table.”Lapse – Expiration of an offer after a specified or reasonable period.Rejection – The refusal to accept an offer.Counteroffer – Turning down an offer and proposing a new one in its place.Death or insanity

Void vs Voidable

Void: fundamentally flawed that it had no effect from the outset; did not ever create substantive rights and obligations Voidable: was formulated in a defective manner, but which is nonetheless binding unless and until it is rescinded by the affected party can be ratified

Recission vs. Repudiation

Recission: lawful renunciation of a contract Repudiation: unlawful renunciation of a contract

Extra Legal Protection

minorspersons w/ metal incapacitiescontracts with these individuals may be void or voidable

Duress

threat of physical/economic harm that induces a contract; genuine consent does not exist contract is voidable

Undue Influence

unfair manipulation that compromises someone’s free will/choice contract is voidable at option of victim ex: contract between elderly person & caregiver actual pressurepresume pressure based on special relationshipgenuine consent does not exist

Unconscionability

An unfair contract formed when one party takes  advantage of the weakness of another Two Step Process to Prove:Proof of inequality between the partiesInadequacy of benefit to the weaker party or proof of exploitation

Misrepresentation

false statement of fact that causes someone to enter a contract

3 Types of Misrepresentation

Fraudulent MisrepresentationNegligent MisrepresentationInnocent Misrepresentation

Remedies for Misrepresentation

Fraudulent: recission in contract, damages in tort Negligent: recission in contract, damages in tort Innocent: recission in contract

Fraudulent Misrepresentation

has a deliberate intent to mislead or makes the statement recklessly without knowing or believing that it is true

Negligent Misrepresentation

makes the statement carelessly (i.e. without really knowing one way or the other if the facts true).

Innocent Misrepresentation

has not been fraudulent or negligent, but has misrepresented a fact

3 Types of Mistake

Common MistakeMutual MistakeUnilateral Mistake

Common Mistake

both parties make the same mistake regarding the subject matter

Mutual Mistake

both parties have a different subject matter in mind, the contract will be void