Rule of Law
no-one is above the law (except for diplomatic immunity)
Law comes from 3 places
Government, Courts, Administrative Tribunals
Public Law
society vs government, ie. criminal, immigration, communications
Private Law
society vs society, ie. business, insurance
Substantive Law
The written rules that defines rights and duties
Procedural Law
The written rules of the procedure of a court hearing
Criminal Liability
offense against society (eg punching someone)
Civil Liability
anything not criminal (eg building codes, water codes, contract, business)
Regulatory Liability
government codes (eg environmental protection. highway traffic act)
Beyond a reasonable doubt
Very convincing evidence that defendant is guilty. Any regular person would think so.
Balance of probabilities
whichever side has > 50% evidence wins
British North American Act of what year?
1867. aka Constitution Act of 1867.
It sets the Founding Principles - a shared set of values people believe in. It's very hard to change.
What are the 2 levels of government?
1. Federal (criminal, defence, immigration, trade) -> creates Territories
2. Provincial (health, education, stocks) -> creates Municipalities
Government Law is called
Legislations or Act or Statute
But they're like frameworks.
The meat is in Regulations (eg speeding fines)
Laws created by a municipality is called
Bylaw
Federal Government law passes through
House of Commons and Senate
House of Commons members are
voted in (ie we vote in Member of Parliament (MP))
Senate members are
appointed
What are the steps to create a law?
1. Propose a bill from House of Commons (HoC)
2. Review by the Senate
What provincial equivalent of House of Commons?
Legislative Assembly, led by the premier. It's vote-in as well.
Ultra Vires
Outside of jurisdiction.
Intra Vires
Within jurisdiction.
Residual Powers
power retained by a governmental authority after certain powers have been delegated to other authorities. (laws on airplanes, internet)
Paramountry
Federal gov always wins over Provincial gov when there's an overlap.
S.1 Reasonable Limits
Can't impact other's rights
S.2 Fundamental Freedom
Peaceful assembly (eg protests), religion, speech
S.3 Democratic Rights
vote
S.6 Mobility Rights
travel within Canada
S.7 Legal Rights
right to remain silent, right to see evidence, life, liberty, abortion
S.8 Search & Seizure
You need a warrant to search
S.9 Detention
Police can't hold you in jail without reason
S.10 Right to Counsel/Lawyer
Right to find a lawyer upon arrest
S.11 Presumption of Innocence & Trial within Reasonable Time
Can't delay court proceeding by too long
S.13 Self Incrimination
Can't make yourself guilty in a summon
S.15 Equality Rights
Race, gender, age, sexual orientation
S.16 Language Rights
FR or EN
S.33 Notwithstanding clause
Allows parliament or provincial legislature to override certain parts of the Charter
S. 52 Supreme Law
Inconsistencies with the Constitution of Canada has no power
Leave
permission
Criminal Court Structure
Sup Court of Ca (SCC): MPs: 3 from QC, 3 of ON, 3 of the rest. They follow a chain of appeal.
[Federal chain down] <- Fed Court of Appeal <- Fed crt Trail Division (war crimes) OR <- Tax court
[Provincial chain down] <- Ontario Court Appeal (OCA) <- Ontario Superior Court of Justice (OSCJ) (hears anything) <- Ontario Court of Justice (OCJ) (for inferior law - criminal and family law, nothing else)
In Civil matters, courts must follow
Precedence (Stare Decisis) - You must follow higher courts' decisions, and past decisions. (Except a change in the times)
Quebec is exception: They follow Quebec Civil Code, it's a "Master Law", and does not require precedence.
Steps in Trial
1. Pleading phase
1.1 Plaintiff issue Statement of Claim
1.2 Issue SoC
1.3 Serve SoC in person, receipt is called Affidavit of Service.
1.4 Statement of Defence (We deny.. We agree.. We have no knowledge of..)
1.5 Serve SoD, not in person.
1.6 Plaintiff optionally serves a Jury Notice (6 juries in civil, 12 in criminal). If he doesn't then the defendant can. Otherwise it's a judge only case.
1.7 Defendant can serve a Counterclaim or 3rd Party Claim.
2. Discovery Phase
2.1 Discover each other's sides of the case with Notice of Examination.
3. PreTrial Phase
3.1 P, D, and J go through info.
3.2 J recommends to settle and makes suggestions.
3.3 P show on Bal of Prob that D is liable => settled.
4. Trial
4.1 A different J will hear the trial. J resp for law, Jury resp for evidence / facts.
4.2 J hears case from beginning in order to be impartial.
4.3 Plaintiff starts, to the jury with Opening Statement, summarize case impartially.
4.4 Examination: Plaintiff asked (non-leading) Qs by his lawyer.
4.5 Cross examination: questions can be leading.
4.6 Re-examination: by plaintiff's lawyer.
4.7 Repeat 4.4 - 4.6 for everyone.
4.8 Judge decides (now or later)
Reserve
Judge needs time
Issue of Costs
Losing party pays winning party.
But based of prior "Offers of Settlement" we have, in Ontario:
1. Party-party cost / Partial Indemnity - winner gets 50% of costs
2. Solicitor-client / Substantial Indemnity - winner gets 100% of costs
eg. Judgement better than offer, you're golden.
eg. Judgement worse than offer, you pay everything up to the difference, with interest, since discovery phase.
Tort Law
What would happen to the plaintiff if the wrong hasn't been committed?
Compensate with $$
Sometimes we have both tort & criminal eg impaired driving
Strict Liability
Show something has happend (Prima Facie - on its face) then you're guilty.
The horse tied up, scared by lightening, and ran over someone example.
Dog owner's liability act. Parent-child. Escape of hazardous material (Rylands v Fletcher)
Fault
P has the burden of proof to establish on the balance of probabilities of D is at Fault.
No-Fault
Doesn't matter what happened, the worker gets compensated.
Worker's Compensation. Automobile Law.
Under Tort Law, Assault is
Threat of Violence
Under Criminal Law, Assault is
Physical Beating
Under Tort Law, Battery is
Physical Beating
Under Criminal Law, Utter Threat is
Threat of Violence
Trespass
Intentional Tort - physical contact with real property or personal property
Deceit/Fraud
Intentional Tort - Lead someone to do something bad
False imprisonment
Intentional Tort - Confine someone without justification
Defamation
Intentional Tort - Slander or Libel in front of OTHER PEOPLE.
If I just tell you privately that you suck then it's fine.
Defences to Defamation (as long as it's not malicious, not for unfair advantage)
1. What I said is true
2. Fair Comment (supervisor to employee)
3. Qualified Privilege (Restaurant reviewer)
4. Absolute Privilege (Parliament)
Malicious Prosecution
Intentional Tort - Allegation to someone that got them in trouble. Interference with Contractual Relations.
Public Nuisance
Hybrid Tort (Usually intentional) - Factory polluting park.
Private Nuisance
Hybrid Tort (Usually intentional) - Excessive noise / water discharge / contaminants from neighbour.
Exception: Buy a house near airport - Permissible Nuisance cuz gov changed the law.
Occupier's Liability
Hybrid Tort - Keep people on your property safe. Can't set up traps.
Negligence
Unintentional Tort
Prove on balance of probability that:
1. D owe P the duty of care.
2. D breach duty of care (did not act reasonably)
3. Such breach resulted in damages.
Donoghue vs Stevenson added 3 more:
4. Reasonable Foreseeability (Would a reasonable person foresee his actions lead to harm?)
5. Standard of care (What would a reasonable person do?)
6. Proximate cause / remoteness (Is it all too disconnected?)
Subcategories: product liability, occupier's liability, negligent misrepresentation.
Material Contribution - If I got rear ended, but hurt my back too, you pay for my back. Pay for CURRENT condition of material loss.
Thin Skull Plaintiff - Subjective test to see if P is weak. (Be careful to not "open the floodgates")
Contributory Negligence
Divide liability among P and D. eg if you contributed to your own injuries.
Appointment of Liability
D's collectively responsible for P's losses. If one D can't pay, everyone else pays for that D's share.
Voluntary Assumption of Risk
Jumping out of space? We warned you if would be dangerous! P assumes the risk.
Professional Liability
Professionals owe care to customers, clients, etc.
1. Duty of Contract
2. Duty of Tort
3. Fiduciary Duty (Trust)
Fraudulent Misrepresentation (Professional Liability)
Fraudulent Misrepresentation: purposely deceiving a client.
Negligent Misrepresentation (Professional Liability)
Negligent Misrepresentation: Lawyer tells you you're gonna be fine don't sue. 3 years later you're not fine and wants to sue but it's too late - sue the lawyer for NM instead.
Also, those examples about banks & investors.
If the "negligent message" was not intended for P, then you're fine.
Also, the case when the broker didn't pass along all the information over.