Canadian Business Law

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.