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92 Cards in this Set
- Front
- Back
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Business law
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a set of established rules governing commercial relationships, including the enforcement of rights
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litigation
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suing
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liability
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legal responsibility for the event/loss that occurred
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statement of claim
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a document setting out the basis for a legal complaint
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Legislative Branch
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creates law in form of statutes and regulations; legislation
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Executive Branch
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formulates, impelements, government policy and law
ie. formulated and advanced govt policy that led to legislation being inacted. legistlative brance passed the law |
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Judicial Branch
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adjudicates disputes, sets common law.
ie. by applying constitutional law, will determine if objectives are valid or not |
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government policy
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central ideas or principles that guide government in its work, including the kind of laws it passes
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liberalism
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political philopshy, individual freedom, autonomy is key organizing value
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Constitutional Law
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supreme law that constrains and controls how the branches of gov't exercise power
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What are 4 elemens of the Canadian Constitution (There are more than that)
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-Constiution Act 1867
-Canadian Charter of Rights and Freedoms -Constitutional (common) law decisions -Constitutional conventions |
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Constitutional conventions
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important rules that are not enforceable to law that practually determine or constrain how a given power is exercised. "code of ehtics that govern our political processes"
ie. nothing stated that PM is an oddice to be held, but traditionally agreed upon, but not binding |
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Legislative Branch.
What levels of govt make law? Give examples |
All three (fed, prov, mun)
Criminal Code of Canada (prohibits assault, theft, fraud) Saskatchewan's Tobacco Control Act created by legislative branch, but at a provincial level |
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How does legislation become law?
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Passed by the House of Commons, then approved by the Senate ("the chamber of sober second thought"
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Do all legislative branches have a Senate?
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No, provinces have something each but by a dif. name.
Municipalities have town councils, with varying powers which are delgated by province in which located |
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Who decides which level of govt has control over which laws?
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Constitution Act of 1867 decides. Each level has jurisdiction for its sphere to enact lawas.
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What's a federal state?
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Canada's govt power is split b/w central, national, authority (federal govt) and regional authority (prov govt)
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CA, 1867, in s.91, says the fed gov't ca enact laws for what?
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-interprovincial/international trade and commerce
-trade as a whole -postal service -navigation and shipping -currency -national defense -criminal law -all legislative areas not given to the procinces |
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What does the CA 1867 say provincial govts can do?
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-adminster justice (court system)
-property and civil rights w/in province (ie. regulation of contracts) -hospitals, incorporating provincial companies, highway regulations |
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Municipalites get what power?
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none constitutionally recognized, only what is delgated by provincial govt. usually zoning, licensing, subdivision, taxing for municipality's benefit
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What are the 2 branches of executive govt?
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Formal and political
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Role of formal executive?
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Ceremonial.
Governonr General (Queen's rep) or Lieutenatn Governor (Queen's provincial rep) issues approval as the final step in creating statute law |
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Political executive's role?
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day 2 day running, formulating and executing govt policy by administering all govt departments.
This is the one lobbying is usually directed at. |
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Who are some members of the political executive?
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PM (CEO of fed); Premier (CEO of prov); civil servants, Cabinet minitsters, agencies, tribunal; all carry on govt function
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What is the Cabinet made up of?
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All the miniters of govt departments and PM/Premeir
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What does the Cabinet do?
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passes regulations, providing detail to what the statue in question has enacted
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Regulations
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rules created by the political executive that act as law
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whats a judiciary
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a collective reference to judges (but supposed to be independent)
-composed of judges appointed prov and fed govt -judges preside over criminal, contract, divorce, etc |
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What are the 3 levels of court?
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Trial, Intermediate Appeal, Final appeal
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What are the two levels of trial court?
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Superior and Inferior
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Superior Court
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judges apptd by fed. govt
-jurisdictio to handle claims of ay $ amt -entry level for more serious criminal matters -more formal, technical, lawyers |
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Inferior Court
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includes civil and smaller claims court
-provincial govt judges -organized by case (family, civil, criminal) -simpler, quicker, less legislation |
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Judges
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appointed by fed/prov govt to adjudicate over disputes; as well as preside over criminal proceedings
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Canadian Charter of Rights and Freedoms 1982
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A guarantee of specific rights and freedoms enshrined in the Constitution and enforced by the judiciary
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What are some of those badass Fundamental Freedomes in the CCRF (82)
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Everyone has:
a. freedom of conscience and religion b.fo thought, belief, opinion, expression, incl,. the press and other media communications c. fo peaceful assembly d. fo of association |
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Bill
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proposed legislation
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What are the sources of law?
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Constitutional convention (important rules that arent enforceable, ie. PM office)
Royal Perogative (diminishing role, used to include the right to conduct foreign affairs, etc.) Statute Law Common Law |
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precedent
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-an earlier case used to resolve a similar case
-the higher the court that created precedent, the more valued the decision -the Supreme Court decides whtever, the lower courts must follow precedents of above |
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equity
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another set of rules that focus on what would be gair given the specific circumstances of the case, as opposed to what the strict rules of common law might dictate (nb, equity assits those with clean hands only)
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Courts can make common law about statutes and how to interpret them
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yeah, thats it
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Dif. between substantive and procedural law
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Substantive - defines rights, duties and liabilties. duty of govt to legislate in accordance with carters, right of plaintiff to challenge govt for failing to meet that standard
Procedural - law governing the procedure to enforce rights, duties, liabilities. ie. the fact that a trial judge's decision cab be appealed to a higher cour is a procedural matter |
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Public v. pricate law
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public - araeas of law relate to/regulate the relationships between persons and govt on all levels (incldues ability to constrain govt power according to rules of fairess, ie. criminal law, tax law, constitutional law, administrative law)
Private - dealings between person, even though this can include between person and govt if govt is buying land (not forcing someone off, expropriating) |
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Criminal law
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identifies behaviour that is seriousuly unaccpetable in the interests of maintiaing order and security in relations between citizens. The govt presecutes those who transgress basic standards of conduct and the courts provide sactions for that conduct, including fines and imprisonment
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Tax law
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sets the rules for collection of revenue for govt operations
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Constitutional Law
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sets the parameters on the exercise of poer by the govt
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Administrative law
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governs all regualtory activity of the state
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Contract law (private)
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provides rules that make agreements between parties binding
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tort law (private
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includes rules that address legal wrongs committed by one person against another , apart from a breach of contract,. They may be intentional (assault) or unintentional (negligent driving)
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property law (private)
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sets rules that define and protect property in all forms
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company law
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provides rules concerning the rights, liabilities, obligations of companies and other business vehicles
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Common v. Civil Law
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Common you know
Civil is the Quebec uses Civil Code of Quebec. more laid out like statutes and what not to refer to instead of jsut common law. |
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Administrative Law refers to two dif. things...what are they?
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-rules creted and applied by those having govtal powers (boards, agencies, commissions, trubanals, individuals w/legislated power)
-one of primary legal areas where govt and buinsess interact 2. also refers to rules of fairness that constrain how administrative bodies exercise their authority |
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Legal Risk Management Plan
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A comprehensive action plan for dealing with the legal risks involved in operation a business
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4 steps in creating a legal risk managment plan
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1. Identify the legal risks
2. Evaluate the risks 3. Devise a legal risk management plan 4. Implement the plan |
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Making a Legal Risk Management Plan:
What are the stages in Step 1: Identify the Legal Risks |
-Assess the orgs functional areas
-Review the orgs business decisions -Examine the orgs 'business relationsihps and assess these relationsihps p50 |
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Making a Legal Risk Management Plan:
What are the stages in Step 2: Evalualte the Risks? |
-Assess the probablity of loss
-Assess the severity of loss |
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Making a Legal Risk Management Plan:
What are the stages in Step 3: Devise a risk management plan |
-Avoid or eliminate the risk
-reduce the risk -transfer the risk -retain the risk |
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Making a Legal Risk Management Plan:
What are the stages in Step 4: Implement the Plan |
-carry out plan
-monitor and revise plan |
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Action plans
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Carrying out investigations, when to alert management, how solutions to be developend, when legal advice required, etc
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lawyer
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person legally qualified to practise law.
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When is ADR least effective?
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When one party decides to delay rather than settle quickly ie. a claim for one side to pay out a large sum
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mediator
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person helps parties reach own compromise. brings parties together to clairty the solution and to assit them in apprecaiting the validity of the other's position/ refrains from judging
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arbitrator
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more formal than mediator, listens to both sides of dispute, makes a (binding) ruling
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binding
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final and enforceable in courts
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+ves of adr
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control time, place, facilitaro, faster, condifential
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-ves of ADR
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not always resolved, so may lose mroe money in total may lead to dimished openess and accountability of the legal systems because private outcomes dont provide guidance to the business community that court rulings do
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When does ADR work?
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• The parties are interested in considering each other's position with the goal of achieving a compromise and settling the dispute.
• The parties wish to maintain their commercial relationship • The parties need a quick resolution of minor problems as they areise in an ongoing transaction • The dispute is complicated, meaning that litigation is likely to be costly • The dispute involves sensitive or emotionally charged issues that the parties wish to keep private or confidential |
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The Canadian Motor Vehicle Arbitration Plan
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for customers and vehicles manufacturers to settle differences over alleged defects or warranties for purchases or leased vehicles
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class action suits
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a lawsuit launched by one person representing a larger group whose members have similar claims against the same defendent
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How can qualify for a class action suit?
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-class can be clearly defined
-common issues of facts or law -success for one class means success for all -proposed reprsentatives adequately refelcts the comon intersts of class members |
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difficulties of class action suits?
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-decidiong whos in the class (esp if in different provinces with dif. legislation)
-communicating if the class has sveral thousand people -accomodating claimaints with similar issues but dif circumstances -accomodating claimaints who dont want to be part of the class |
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limitation period
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time period specified by legislation for commencing legislation
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commerical litigation
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knowns as private/civil litigation
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Who bears cost of bringning a matter thru the judicial system?
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the litgants
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What are the 4 stges of a lawsuit?
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1. Pleadings
2. Discovery 3. Trial 4. Decision |
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Trial phase
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Trial is a formal hearing before a judge that results in a binding decision
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Discovery Phase
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• The process of disclosing evidence to support the claims in a lawsuit.
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burden of proof
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Burden of proof - the obligation of the plaintiff to prove its case
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Decision
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The judgement of the court that specifies which party is successful and why
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legal costs
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usually legal costs of the successful party (legal expenses that a judge orders the loser to pay the winner)..usuallly not v. much tho
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solicitor and client costs
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In exceptional cases where the conduct of the losing party has been seriously objectionable, the court will award solicitor and client costs. This is much closer to covering the costs than the previous one.
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what determines the outcome of the case?
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• Possible outcomes depend on the evidence presented, the persuasiveness of the lawyers, and the judges view of the case
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judgement debtor (aka losaah!)
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the party ordered by the court to pay a specified amount to the winner of the lawsuit
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appeal
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the process of arguing to a higher court that a court deciions is wrong
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appellant
respondent |
files appeal
party against who appeal is filed |
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What are possible outcomes of an appeal?
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-confirm original ruling
-vary it in some way -reverse the decision -order another trial to be conducted |
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Contract
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a deliberate agreement between 2 completent parties that in enforceable in a court of law
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what are the essential elements in a contract? 7.
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a. agreement
2. complete (certain) 3. deliberate 4. voluntry 5. betwee 2 or more competenet parties 6. supported by mutual consideration (bargain/exchange) 7. not necessarily written |
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What laws govern contracts?
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Genrally contract law.
Some legislation, ie. Sale of Goods Act, may also be relevant |
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objective standard test
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based on if a reasoable person observing the communications that had occured between negotiators would conclude that an offer and acceptance had occurred. if yes, parties are bound
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Bargaining power
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the legal assumption that parties to a contract are able to look our for their own interes
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What is a standard form contract?
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Good exmaple of bargaining inequality. like those car places that have a standard contract everoyone must sign, no negotiations
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