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57 Cards in this Set
- Front
- Back
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Constitutional law
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The supreme law in Canada that constrains and controls how the branches of government exercise power
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Common law
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Rules that are formulated in judgements and bases its private law on judicial deciations
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Civil law
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Covers matters of private law that govern Quebec (property, relationships, etc...)
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Separation of Powers
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the state is divided into branches, each with separate and independent powers and areas of responsibility so that no branch has more power than the other branches
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How is separation of powers achieved
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1. By time
2. By place (central & regional) 3. By function |
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What are the three branches in separation of power
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1. Legislative
2. Executive 3. Judicial |
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Legislative branch
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creates law structures and regulations
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Executive branch
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implement government policy and law
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Judicial branch
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interprets the law
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What are the three levels of government?
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1. Federal
2. Provincial 3. Municipal |
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How does the Canadian Charter of Rights & Freedom act to limit law-making powers in Canada?
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no law can be made that goes against the charter
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How is the legislative branch involved in law-making?
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makes the statutes via the House of Commons & the Senate
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How is the executive branch involved in law-making?
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delegates the legislations (ex. pyramid of courts - prime minister at the top)
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How is the judicial branch involved in law making?
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applies either to common law, equity, or the principle of law
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The supremacy of parliament
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Parliament has overall control over the people no matter what
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What is the difference between common law and equity?
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Common law are rules that are formulated in judgments
Equity are rules that focus on what would be fair given the specific circumstances of the case, as opposed to what the strict rules of common law may be |
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What is the main objective of the law of torts?
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Compensation (to compensate people who have suffered personal injury in the form of damages)
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How is each tort broken into elements for analysis?
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Each tort is broken into 4 elements that must be met
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The test of reasonable person
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used to judge what a reasonable person would view the matter as
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How is the test of reasonable person applied in the law of torts
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it's applied to each element of the tort to determine the standard and whether tort is applicable
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Intentional torts
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a harmful act that is committed on purpose
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Unintentional torts
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a harmful act that is committed unintentionally
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What is the difference between intentional and unintentional torts?
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the state of mind of the person causing interference
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What defenses can be used by a defendent to reduce liability of tort
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1. Release
2. Doctrine of Laches 3. Act of God 4. Waiver |
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What does the defence Release mean?
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Promise not to sue
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Doctrine of Laches
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After a certain period no legal action can be taken
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Act of God
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unanticipated event
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Waiver
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say that a person waived their rights
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Elements of intentional torts
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1. Words or acts
2. Intention to say or do what was said or done 3. Intention to cause harm 4. Actual harm as a result |
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Elements of battery
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1. A false statement by the defendent is made, knowing it's false
2. Intention that the plaintiff believed it 3. Intention that the plaintiff act on it 4. Actual harm to the plaintiff |
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Elements of unintentional torts of negligence
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1. Duty of care owed by the defendant to the plaintiff
2. Breach of duty by the defendent 3. Injury to the plaintiff 4. Causal relationship between breach and injury |
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What approaches can a defendant take to avoid liability for negligence?
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1. Exercise due care
2. Refuse to provide an opinion or take action 3. Use a clear and unequivocal disclaimer |
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What are some defences a defendant can use when being sued even though all elements of tort negligence are present?
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1. Voluntary assumption of risk
2. Contributory negligence 3. Joint tortfeasons |
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Voluntary assumption
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no liability exists as the plaintiff agreed to accept the risk inherent in the activity
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Contributory negligence
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defence claiming that the plaintiff is at least partially responsible for the tort that has occured
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Joint tortfeasons
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injury resulting from actions of more than one wrongdoer
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Vicarious liability
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employers have the ability to control employees and therefor should be liable for the employees misconduct
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Contract formation
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A deliberate and complete agreement between two or more competent persons
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What are the steps for formation of a contract?
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1. Offer
2. Acceptance 3. Consideration 4. Intention |
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Identify the five categories faced by courts when dealing with contracts
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1. Illegal = contract has an illegal purpose & court will make no order
2. Void = one of the four requirements is missing & parties return to original position 3. Voidable = its unfair to enforce it (misrepresentation) & parties are returned to the position before contract was formed 4. Unenforceable = legislation prevents enforcements & party not willing must return to consideration 5. Enforceable = result will legal remedy for damages from breach |
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Misrepresentation
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a false statement of fact that causes someone to enter a contract
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What are some types of mistakes?
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1. Common
2. Mutual 3. Unilateral (one party) |
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Duress
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the threat of physical or economic harm that results in a contract and is void at option of the victim
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Parol Evidence Rule
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A rule that limits the evidence a party can introduce concerning the contents of the contract
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What are some exceptions of the Parol Evidence Rule?
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1. If there is an alleged problem going to the formation of the contract
2. If the contract is intended to be partly oral or partly written 3. If the promised to be enforced is contained in a separate agreement that is oral 4. If language in the contract is ambiguous |
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How can contractual situations be discharged
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1. Performance
2. Agreement 3. Frustration 4. Breach |
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Condition
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and important term, if breached gives the innocent party the right to terminate the contract and claim damages
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Warranty
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a minor term, which if breached gives the innocent party the right to claim damages only
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What are the different types of breach of contract?
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1. Anticipatory breach
2. Total failure of performance 3. Grossly inadequate performance 4. Failure in a minor particular 5. Fundamental breach |
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Anticipatory breach
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1. Hold the contract open
2. Treat the contract as breach and immediately seek remedy |
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Total failure of performance
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Seek whatever remedy is available under the principles of Law & Equity
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Grossly inadequate performance
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1. Keep the goods & seek damages for the difference in value
2. Reject goods & seek remedies for total failure of performance |
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Failure in a minor particular
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keep the goods and seek damages for the difference in value
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Fundamental breach
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1. Enforce the contract
2. Act as if the contract never existed & seek remedy on other grounds |
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Availability of the remedy of quantum meruit
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Awarding one party a reasonable sum for the goods and services provided under a contract
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How do courts interpret provisions in standard form contracts?
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the court will seek the most reasonable meaning that can be attributed to words in the circumstances
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What is the role of equity?
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protects the weaker party from the stronger on by stepping in if the weaker party is taken advantage of
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