Law Midterm 1

ADR

resolution of a dispute outside the court system

advantage of ADR

addresses the downside of litigation

downsides of ADR

• inconclusive if not binding

• inappropriate if a toxic relationship

• unequal resources

• involves compromise

3 forms of ADR

negotiation

mediation

arbritration

statement of claim

original document drafted by the plaintiff (12 months to respond)

statement of defense

responding document by the defendant back to the plaintiff (21-49 days to respond)

reply

responding document by plaintiff back to the defendant (7 days to respond)

default judgement

plaintiff can request if statement of defense is not delivered within the required time frame

judgement creditor

party owed money

judgement debitor

party owing money

judgement proof

for someone with no assets or job cannot have enforced judgement

ways to enforce judgement

seize and sell

garnishment (up to 40%)

examination in aid of execution

lawyer sits down and asks judgement debitor about assets, liabilities income, etc… under oath

contingency fee agreeements

charging a % of the winnings ( max 33.3% - 40%)

retainer

before your lawyer starts work, you pay x amount

class action lawsuit

several people hurt by same person in almost/same ways ( must be certified by BCSC)

class proceedings act

cause of action, common issue, preferable route, notification plan

role of courts

interpret and apply legislation, constitution, and past cases

3 levels of courts in Canada

BCSC, BCCA, SCC

how many judges at BCSC

1

how many judges at BCCA

3

how many judges at SCC

9

small claims

5k-35k

online civil resolution tribunal

anything less than 5k

jurisdiction

every province and territory has a superior court and court if appeals

rule of law

disputes resolved based on well established laws and not arbirtary means

precedent

judge must consider previous judicial decisions if brought to attention by the lawyer

precedent in courts in same jurisdiction

decisions of the higher court is binding (must follow)

precedent in courts in different jurisdictons

courts may follow the decision of a court in another jurisdiction

litigation

use of court system to resolve dispute

downsides of litigation

expensive

time consuming

unpredictable

harmful to business relationships

public

stressful

no input to selecting the decision

when was the first phase of the constitution written

1867

when was the second phase of the constitution written

1982

what topics of the constitution is federal

section 91

what topics of the constitution are provincial

section 92

freedom of religion

section 2a

freedom of expression

section 2b

freedom of mobility

section 6

right to equality

section 15

right to vote

section 3

charter limiations

• only applies to government action

• reasonable limitations (oakes test)

oakes test

• Is the objective of legislation sufficiently important to override a constitutional right

• Are the limitations proportional (rational connection of both design and the effects)

non withstanding clause

section 33: can override some laws for up to 5 years (section 2,7-15)

creation of laws

• introduced as a bill

• majority support through series of “readings”

• finalized by royal assent

hierarchy of law

1. constitution

2. legislation

3. precedent

tyranny of the majority

how race and religion of a certain majority can affect the way voting goes (can lead to discrimination)

contract formation requirements

1. intention

2. offer

3. acceptance

4. consideration

invalid contracts

• incapacity

• illegality

• mistake

• unfairness

• misrepresentation

contract

agreement between 2 parties(exchange of promises)(enforced by law)

intention

parties must intend their agreement for it to be legally enforceable

reasonable person’s test

to determine objective standard

consensus ad idem (meeting of minds)

both parties have same understanding (offer + acceptnace)

offeror

proposing the offer

offeree

receiving the offer

invitation to treat

indication by one party that is willing to receive an offer from others (open to negotiation)

risk management

contract is formed when offer is accepted

offer vs ITT

• reasonable person test

• presumptions ( ITT, offer, accept/rject)

forms of communication of an offer

written, verbal, conduct

when can an offer be terminated

ONLY before contract is formed

revocation

offeror withdraws offer

expiry of time

offeror sets a time that the offer is open and if not accepted by that time it automatically laspes

metal incompetence/death

offer lapses

rejection

offeree indicates unwillingness to accpet offer

counteroffer

rejects the offer by puting a new offer forward

acceptance

agreement to ALL offerors terms

bilateral contract

a promise in exchange for a promise

BC business practices and consumer protection act

no legal obligation until communicated intention to accept

rules for instantaneous communication

effective when and where it is received and only if it is received

rules for non instantaneous communication

acceptance is effective when and where it is sent and is effective even if it is not received

unilateral contract

an act of performance exchanged for a promise (missing item reward)

necessity of consideration

both parties to a contract must provide some kind of consideration(value) otherwise it is unenforceable

elements of consideration

• something of value

• legal

• mutual consideration

• must move from a party but not necessarily flow to a party

sufficient consideration

any/some value

adequate consideration

equal value

past consideration

not good consideration. Something of value given before the exchange of promises

mutual consideration

same consideration can be used for 2 separate contracts with different parties

seal

special mark on a document that indicates that the party agrees to be bound to the document even though no new consideration (ex. mortgage)

promise to forgive an existing debt

promise to accept partitial payment in satisfaction of entire debt

estoppel

prevents party from retracting their previous statement

promissory estoppel

if party makes a promise to another party and the other party relies on that promise to their detriment

promissory estoppel 4 conditions

1. must be in an existing relationship

2. promisor must unequivocally state that it will not enforce its legal rights against the promisee

3. promisee relies upon the statement of the promisor

4. promisee is innocent of inequitable behaviour

privity of contract

contractual rights and obligations conferred only on contractual parties (only parties can sue or be sued under the contract)

assignemnt

one party transfers rights in a contrcat to a 3rd party

statutory assignment

provincial legislation dictates the elements required for a valid assignment

equitable assignment

defective statutory assignment may still be a valid equitable assignment

statue

allow enforcement by a stranger (ex. life insurnace)

void contract

contractual elements missing and/or type of contractual defects that makes contracts invalud

incapacity

inability to consent to a legal transaction

• minors

• intoxication

• mentally incompetent

• aboriginal persons

minors and contracts

laws are to protect them from exploitation. They can accept or avoid the contract but they are still responsible for benefits received until the contract is avoided

minors and necessacities

a contract for necessaries is enforceable against the minor. 1 year grace period to set aside contract

mentally incompetant and contrcats

the contract is only voidable if the other party knew or should have known about the disability

intoxication and contracts

contract is voidable if the intoxicated party proves that they were too intoxicated to understand the meaning of the contract, other party is aware that the intoxicated party was unable to understand, and intoxicated party immediately takes steps to avoid the contract once sobered up

evidence in writing requirments

statute of frauds, certain contracts to be evidenced in writing with sufficient content regarding the contrcat

mistake

parties are mistake about the agreement at the outset = no meeting of minds, so flawed its void

duress

threat of harm that coerces another person to act against his will ( person, goods, economic)

undue influence

one party manipulates the will of another

fiduciary relationship

imposed relationships of trust and confidence (ex. laywer and client)

how does the court deal with fiduciary relationships

opposite of innocent until proven guilty, dominant party must prove they did not take advantage as court will always assume they did

unconscious transaction

agreements that are patently unfair (no fair minded person would offer or accept)

how do courts deal with unconscionable transactions

same as fiduciary